Lopez et al v. Pena et al

Filing 30

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT UNITED STATES OF AMERICA'S PARTIAL MOTION TO DISMISS: re: 15 Motion to Dismiss/Lack of Jurisdiction. the United States is dismissed as a party. (Ordered by Judge Mary Lou Robinson on 12/12/2012) (egb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
ROLANDO CRUZ LOPEZ and
JAMES FOXE,
Plaintiffs,
v.

No. 2-12-CV-165-J

ALEJANDRO PENA, individually;
UNITED STATES CUSTOMS AND
BORDER PROTECTION; UNITED
STATES DEPARTMENT OF
HOMELAND SECURITY; and THE
UNITED STATES OF AMERICA
Defendants.

Memorandum Opinion and Order
Grantins Defendant United States of Americaos Partial Motion to Dismiss
Before the Court is Defendant United States of America's Partial Motion to Dismiss

for

Lack of Subject Matter Jurisdiction, in which the United States seeks to dismiss Plaintiffs'
Counts

III and IV

because Plaintiffs have failed

to exhaust administrative remedies as required

by the Federal Tort Claims Act (FTCA). Plaintiffs, proceeding pro se, have failed to respond.
For the following reasons, the motion is GRANTED.

Background
Plaintiffs filed their six-count complaint on August 7,2012. Each count stems from an
August 2009 incident at the Dallas/Fort Worth International Airport during which Customs and
Border Protection (CBP) officers-Defendant Alejandro Pena in particular-allegedly detained

Plaintiff Cruz Lopez (en route to visit his friend Plaintiff Foxe in Amarillo), accessed his email
and bank accounts without permission, and executed an expedited removal order against him for

allegedly being employed by Foxe in violation of visa restrictions. After much effort, Plaintiffs
Page

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obtained a vacation of the removal order in June2012, but they have been unable to reacquire a
visa for CruzLopez.

Cruz Lopez claims in Count III that Officer Pena invaded his privacy by unreasonably

intruding on Cruz Lopez's solitude, seclusion, or private affairs. In Count IV, Cruz Lopez
asserts

that Officer Pena "knowingly access[ed] a computer, computer network, or computer

system without the effective consent of the

owner." Tex. Penal Code Ann.

$ 33.02 (West 2012)

(civilly actionable under Tex. Civ. Prac. & Rem. Code $ 143.001).
The FTCA protects federal employees from civil liability for torts committed while
acting within the scope of their employment. The Act shifts some tort claims onto the United
States

itself. Thus, after the Attorney General certified that Officer

Pena acted within the scope

of his employment during his encounter with Cruz Lopez, the United States substituted Ofhcer
Pena as defendant to Counts

III

and

IV.

28 U.S.C. $$ 1346(b),2679 (2012).

If

these counts

sound in tort and the federal government has not otherwise waived sovereign immunity as to
them, then the FTCA is the only route for Plaintiffs to pursue them.l See Mitchell v, Carlson,
896 F.2d 128, 130 (5th Cir. 1990).

The requirement that FTCA plaintiffs exhaust administrative remedies is jurisdictional.
28 U.S.C. 52675(a); Price v. United States,81 F.3d 520,521 (5th Cir. 1996). Therefore, the

United States argues that the Court lacks jurisdiction because Plaintiffs have not

sought

administrative relief from the CBP. The govemment supports its motion with the declaration of

Yvette Rodriguez, Mission Support Specialist for the Office of Chief Counsel at the Houston

t

Cruz Lopez also asserts a claim against Officer Pena in Count II, but the United States did not seek
substitution for that count-presumably because the federal statute underlying that claim might act as
authorization, independent of the FTCA, to seek civil remedies against individual federal employees. See

18U.S.C. $2707;seealsoBansalv.Russ,513F.Supp.2d264,277 n.9(E.D'Pa.2007)'
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CBP offrce, that neither plaintiff had filed an administrative tort claim with CBP as of October

11,2012.
Legal Standard

"[A] motion to dismiss for lack of subject matter jurisdiction
appears certain that the

should be granted only

if it

plaintiff cannot prove any set of facts in support of his claim that would

entitle plaintiff to relief." Rammingv. United States,281 F.3d 158, 161 (5th Cir.2001) (citing
Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998));
Fed. R. Civ. P. 12(bX1). The plaintiff, as the party asserting jurisdiction, bears the burden

of

proving jurisdiction by a preponderance of the evidence. Life Partners Inc. v. United States, 650

F.3d 1026, 1029 (5th Cfu. 2011). The court can dismiss for lack of subject matter jurisdiction on
any of three bases: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's

resolution of disputed facts." Choice Inc. of Texas v. Greenstein, 691 F.3d 710, 714 (5th Cir.
2012) (quoting Williamson v. Tucker,645 F.2d 404, 413 (5th Cir. 1981)). Where the defendant
supports the motion with evidence, the motion is a "factual" rather than "facial" attack, and "no
presumptive truthfulness attaches to plaintiff s allegations, and the existence of disputed material

facts

will not preclude the trial court from evaluating for itself the merits of jurisdictional

claims," Williamson.

645 F.2d at

4I3.
Discussion

FTCA actions "shall not be instituted upon a claim against the United States for money
damages . . . unless the claimant shall have

first presented the claim to the appropriate Federal

Agency and his claim shall have been finally denied by the agency in writing and sent by
certified or registered mail." 28 U.S.C. 52675(a); McNeil v. United States,508 U.S. 106,

Pase 3

ofS

113

(1993). Plaintiffs have apparently not exhausted their administrative remedies as to Counts III
and

III

IV,

and

as no mention

IV

of adjudicated tort-like claims is made in the complaint. Thus, if Counts

can be brought under the FTCA alone-and

if the United

States has not otherwise

authorized the claims to proceed before this Court-they must be dismissed.2

Count

FTCA.

III, an intrusion on privacy tort claim, can be pursued, if at all, only under the

See Texas Comptroller of Pub. Accounts v. Attorney Gen. of Texas,354 S.W.3d

336,364

(Tex.2010), reh'g denied (Jan. 14,2011) (giving elements of intrusion tort); see also Raz

v.

United States,343 F.3d 945 (8th Cir. 2003) (citing cases) (holding that intrusion tort falls within

FTCA's reach). The Court can find no other waiver of immunity allowing Count

III

against

either Officer Pena or the United States. Pursuing the United States under the FTCA is
Plaintiffs' sole option for Count III.
Count IV is a state statutory claim for damages also pursuable, if at all, exclusively under
the FTCA. Some Texas statutory claims are already in this category. See A.L.T. Corp. v. Small
Business

Admin.,80l F.2d 1451,1462 (5th Cir. 1986) (citing Taylor

v.

Administrator of the SBA,

722F.zd 105 (5th Cir. 1983)) (holding that FTCA provided exclusive remedy for Deceptive
Trade Practices Act claims that sound in

tort). Civil

actions under Tex. Penal Code $ 33.02

sound in tort, as they require the plaintiff to show that the defendant knowingly or intentionally
accessed a computer, computer network, or computer system without the effective consent of the

owner, and that the plaintiff was injured thereby. Tex. Civ. Prac. & Rem. Code $ 143.001. This

statutory cause

of action fits the definition of a tort ("A civil wrong, other than breach of

contract, for which a remedy may be obtained, usu. in the form of damages," Tort, Black's Law

'

The Court would not have jurisdiction even if the counts, sounding in tort, fell outside the FTCA or
were part of a 28 U.S.C. $ 2680 exclusion. See Mitchell,896 F.zd at 134-36 ("Upon discovering the
jurisdictional exclusion of liability for acts of assault and battery, the district court should have dismissed
the entire case.").
Paee 4

of5

Dictionary (9th ed. 2009));

it is also akin to the common

law torts of, for example, "cyber

trespass" (to chattels) and intrusion on seclusion. The Court can find no other waiver of

immunity allowing this claim against either Officer Pena or the United States. Pursuing the
United States under the FTCA is Plaintiffs' sole option for Count IV.
Conclusion
Counts

III

and

IV fall within the scope of the FTCA, and sovereign immunity

otherwise been waived for

them.

Consequently, the Court only has jurisdiction

if

has not

Plaintiffs

prove compliance with the FTCA's requirements. Ms. Rodriguez's un-rebutted declaration
demonstrates that Plaintiffs did not file Counts

III or IV

as administrative

tort claims with the

appropriate agency (CBP) or receive final administrative denial of those claims. 28 U.S.C.

52575;28 C.F.R. $ 14.2, 14.9 (2012). "[T]he terms of [the United States's] consent to be

sued

in any court define the court's jurisdiction to entertain the suit," United States v, Dalm,494 U.S.
596, 608 (1990), and the United States has consented to be sued on these claims and in this Court

only after administrative remedies are exhausted. Thus, the Court does not have jurisdiction over
Counts

III

and

IV, which are DISMISSED without prejudice. The United States is DISMISSED

as a party.

It is SO ORDERED.

Signed this the

{U^rof

Decemb er,2012.

Y

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R
ATES DISTRICT JUDGE