Garcia De La Paz v. Coy et al

Filing 42

ORDER GRANTING IN PART AND DENYING IN PART 12 Motion for Summary Judgment; GRANTING IN PART AND DENYING IN PART 13 Motion for Summary Judgment; GRANTING IN PART AND DENYING IN PART 12 Motion to Dismiss ; GRANTING IN PART AND DENYING IN PART 13 Motion to Dismiss ; TERMINATING [] Motion for Summary Judgment; GRANTING 22 Motion Motion for Discovery Signed by Judge David Ezra. (wg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

ALEJANDRO GARCIA DE LA
PAZ,

)
)
)
Plaintiff,
)
)
vs.
)
)
United States Custom and Border
)
Protection Officers JASON COY and )
MARIO VEGA and THE UNITED )
STATES OF AMERICA,
)
)
Defendants.
)
_____________________________ )

CV. NO. SA-12-CV-00957-DAE

ORDER: (1) GRANTING IN PART AND DENYING WITHOUT PREJUDICE
IN PART MOTION TO DISMISS AND/OR, IN THE ALTERNATIVE, FOR
SUMMARY JUDGMENT OF DEFENDANTS VEGA AND COY; (2)
GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
AND/OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT OF
DEFENDANT UNITED STATES OF AMERICA; AND (3) GRANTING
PLAINTIFF’S RULE 56(d) MOTION FOR DISCOVERY
On May 31, 2013, the Court heard a Motion to Dismiss and/or, in the
Alternative, Motion for Summary Judgment filed by Defendants Jason Coy
(“Coy”) and Mario Vega (“Vega”) (collectively, “the Agents”) (doc. # 12); a
Motion to Dismiss and/or, in the Alternative, Motion for Summary Judgment filed
by Defendant United States of America (“United States”) (doc. # 13); and Plaintiff
1

Alejandro Garcia de la Paz’s (“Plaintiff”) Rule 56(d) Motion for Discovery (doc.
# 22). David Anton Armendariz, Esq., and Lance Edward Curtright, Esq.,
appeared at the hearing on behalf of Plaintiff; Joseph Cuauhtemoc Rodriguez, Esq.,
appeared at the hearing on behalf of Defendants Coy, Vega, and the United States
(collectively, “Defendants”). After reviewing the Motions and the supporting and
opposing memoranda, the Court GRANTS IN PART and DENIES IN PART
WITHOUT PREJUDICE the Agents’ Motion, GRANTS IN PART and
DENIES IN PART the United States’s Motion, and GRANTS Plaintiff’s Motion.
BACKGROUND
This lawsuit arises from a traffic stop that occurred on the afternoon
of October 11, 2010, at the intersection of Ranch Road 187 and Ranch Road 337.
Plaintiff is Hispanic. (“Compl.,” Doc. # 1 ¶ 12.) According to Plaintiff, on
October 11, 2010, he was a passenger in the front seat of a red Ford F150 truck
(“the Truck”) with an extended cab. (Compl. ¶ 17.) Plaintiff asserts that this kind
of truck is “extremely common in Texas.” (Id. ¶ 18.) The Truck was not altered in
any way or for any special purpose—for example, to carry heavy loads—and the
Truck’s windows were not tinted or altered to obscure visibility. (Id. ¶¶ 19, 20.)
The Complaint states that visibility into the cab through the windows was clear and
unobstructed. (Id. ¶ 21.) According to Plaintiff, the Truck was traveling in
2

accordance with applicable state traffic rules and regulations. (Id. ¶ 32.)
Omar Hernandez was driving the Truck, and there were two other
passengers in addition to Plaintiff: Miguel Cortez and a man named Marcos, both
sitting upright in the rear seat. (Id. ¶ 22.) The four men were returning from work
near Vanderpool, Texas. (Id. ¶ 23.) According to Plaintiff, they had left the work
site in the late afternoon to return to San Antonio. (Id.) They were originally
traveling north on Ranch Road 187, and then turned right onto Ranch Road 337,
going east. (Id. ¶¶ 24–28.) The Complaint states that the intersection of those two
roads is more than 100 miles from the Mexican border. (Id. ¶ 28.) It further
alleges that both roads are traveled by thousands of people daily, many of whom
are Hispanic. (Id. ¶ 29.) The Complaint alleges that the “overwhelming majority”
of people traversing those roads do so for lawful purposes and are United States
citizens or non-citizens present in the United States legally. (Id. ¶¶ 30, 31.) It
further alleges that there are no characteristics particular to that stretch of road that
makes it more likely to be used as a route for illegal activity than other roads
within Texas. (Id. ¶¶ 73, 74.)
According to Plaintiff, Coy and Vega—agents with United States
Customs and Border Protection (“CBP”)—were on patrol duty, driving south on
Ranch Road 187 in separate patrol cars, when they saw the Truck. (Id. ¶¶ 33, 34.)
3

The Complaint alleges that the Agents saw the Truck, and “[b]ased principally
upon their perception that the Truck had a Hispanic driver and other Hispanics
inside,” decided to pull it over and interrogate the occupants shortly after it turned
onto Ranch Road 337. (Id. ¶ 42.) Accordingly, the Agents began following the
Truck. Plaintiff claims that Hernandez (the driver) continued looking forward at
the road and neither Plaintiff nor the two men in the rear seat of the Truck made
any bodily movements out of the ordinary. (Id. ¶¶ 44, 45.) When the Agents
turned on their vehicles’ emergency lights, Hernandez brought the Truck to a stop
promptly. (Id. ¶ 48.)
Plaintiff alleges that, after Hernandez brought the Truck to a stop, the
Agents exited their vehicles and Coy approached the Truck’s passenger side and
Vega the driver’s side. (Id. ¶¶ 63, 64.) Without any explanation for the stop, Vega
asked whether the occupants were United States citizens. (Id. at 64.) According to
the Complaint, when Plaintiff answered the question, Coy opened the passenger
door, grabbed Plaintiff by the upper arm, pulled him out of the Truck and directed
him to Coy’s patrol car. (Id. ¶¶ 65, 66.) Plaintiff asserts that the Agents did not
have a warrant for his arrest or any reason to believe Plaintiff was likely to escape
before an arrest warrant could be obtained. (Id. ¶¶ 68, 72.) The Complaint alleges
that Coy and Vega never searched the Truck for drugs or contraband;
4

communicated with their agency to determine whether the agency had any
information relating to Plaintiff or the Truck; or undertook any investigation
specific to Plaintiff. (Id. ¶¶ 69–72.)
On October 9, 2012, Plaintiff filed the instant Complaint. (Compl.)
The Complaint asserts causes of action against Coy, Vega, and the United States
pursuant to the Declaratory Judgment Act and the Administrative Procedures Act
for violations of 8 U.S.C. §§ 1357(a)(2) and (a)(3); claims against the United
States under the Federal Tort Claims Act (“FTCA”) for false imprisonment and
assault; and claims against the Agents for violations of the Fourth Amendment
pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). On January 14, 2013, the Agents filed the Motion to Dismiss
and/or, in the Alternative, Motion for Summary Judgment that is currently before
the Court. (“Agents’ MSJ,” Doc. # 12.) That same day, the United States filed
their own Motion to Dismiss and/or, in the Alternative, Motion for Summary
Judgment. (“U.S. MSJ,” Doc. # 13.) On February 4, 2013, Plaintiff filed a Rule
56(d) Motion for Discovery. (Doc. # 22.)
LEGAL STANDARD
I.

Rule 12(b)(6) Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a
5

complaint for “failure to state a claim upon which relief can be granted.” Review
is limited to the contents of the complaint and matters properly subject to judicial
notice. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
In analyzing a motion to dismiss for failure to state a claim, “[t]he court accepts
‘all well-pleaded facts as true, viewing them in the light most favorable to the
plaintiff.’” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)
(quoting Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464,
467 (5th Cir. 2004)). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A complaint need not include detailed facts to survive a Rule 12(b)(6)
motion to dismiss. See Twombly, 550 U.S. at 555–56. In providing grounds for
relief, however, a plaintiff must do more than recite the formulaic elements of a
cause of action. See id. at 556–57. “The tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable to legal conclusions,”
and courts “are not bound to accept as true a legal conclusion couched as a factual
6

allegation.” Iqbal, 556 U.S. at 678 (internal quotation marks and citations
omitted). Thus, although all reasonable inferences will be resolved in favor of the
plaintiff, the plaintiff must plead “specific facts, not mere conclusory allegations.”
Tuchman v. DSC Commc’ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994); see also
Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005) (“We do not accept as
true conclusory allegations, unwarranted factual inferences, or legal conclusions.”).
When a complaint fails to adequately state a claim, such deficiency
should be “exposed at the point of minimum expenditure of time and money by the
parties and the court.” Twombly, 550 U.S. at 558 (citation omitted). However, the
plaintiff should generally be given at least one chance to amend the complaint
under Rule 15(a) before dismissing the action with prejudice. See Great Plains
Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir.
2002).
II.

Rule 12(b)(1) Motion to Dismiss
Pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1), a

defendant may move to dismiss a complaint for lack of subject matter jurisdiction.
The plaintiff, as the party asserting jurisdiction, bears the burden of proving that
subject matter jurisdiction exists. Choice Inc. of Tex. v. Greenstein, 691 F.3d 710,
714 (5th Cir. 2012). A district court may dismiss for lack of subject matter
7

jurisdiction on any one of the following 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.” Voluntary Purchasing Grps., Inc. v. Reilly, 889 F.2d 1380, 1384 (5th Cir.
1989). However, “a motion to dismiss for lack of subject matter jurisdiction
should be granted only if it appears certain that the plaintiff cannot prove any set of
facts in support of his claim that would entitle plaintiff to relief.” Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001).
III.

Motion for Summary Judgment
Summary judgment is granted under Federal Rule of Civil Procedure

56 when “the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see also Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012).
The main purpose of summary judgment is to dispose of factually unsupported
claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).
The moving party bears the initial burden of demonstrating the
absence of any genuine issue of material fact. Id. at 323. If the moving party
meets this burden, the non-moving party must come forward with specific facts
that establish the existence of a genuine issue for trial. ACE Am. Ins. Co. v.
8

Freeport Welding & Fabricating, Inc., 699 F.3d 832, 839 (5th Cir. 2012). In
deciding whether a fact issue has been created, “the court must draw all reasonable
inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000). However, “[u]nsubstantiated assertions,
improbable inferences, and unsupported speculation are not sufficient to defeat a
motion for summary judgment.” Brown v. City of Hous., 337 F.3d 539, 541 (5th
Cir. 2003).
“Where the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no ‘genuine issue for trial.’”
Matsuhita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
DISCUSSION
I.

The Agents’ Motion
The Agents seek dismissal of, or summary judgment on, each of

Plaintiff’s claims against them.
A.

Plaintiff’s Claims for Declaratory Relief
Coy and Vega seek dismissal of Plaintiff’s claims for declaratory

relief against them, arguing that “an official capacity suit cannot be filed against
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individual federal employees.” (Agents’ MSJ at 2.) In response, Plaintiff
concedes that the Agents “are not the proper defendants as to [Plaintiff’s] claims
for declaratory relief,” and agrees that dismissal of those claims insofar as they are
asserted against Coy and Vega is proper. (Id. at 25.) Plaintiff’s claims for
declaratory relief against the Agents are therefore DISMISSED.
B.

Plaintiff’s Bivens Claims
The Agents seek dismissal of or summary judgment on Plaintiff’s

Bivens claims on three grounds. First, relying on Mirmehdi v. United States, 689
F.3d 975 (9th Cir. 2012), the Agents contend that Plaintiff may not bring a Bivens
action because there is an alternative process by which he may protect his interests:
his pending removal proceeding. (Doc. # 40 at 1 n.1.) Second, the Agents argue
that the Court lacks subject matter jurisdiction over Plaintiff’s Bivens claims under
8 U.S.C. §§ 1252(b)(9) and 1252(g). (Id. at 4–5.) Finally, the Agents assert that
they are entitled to qualified immunity. The Court will address each argument in
turn.
1.

Mirmehdi v. United States

In Mirmehdi v. United States, the plaintiffs—Mohammad, Mostafa,
Mohsen, and Mojtaba Mirmehdi (collectively, the “Mirmehdis”)—were arrested
for immigration violations after their attorney told federal authorities that they
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supported an Iranian terrorist group. 689 F.3d at 979. The Mirmehdis challenged
the charges against them on direct appeal of their detention, during the proceedings
related to their asylum applications, and in a federal petition for a writ of habeas
corpus. Id. After they were released, the Mirmehdis brought a Bivens claim
against two federal agents for unlawful detention. Id. at 980. The court of appeals
was thus squarely presented with what had been an “open question” in the Ninth
Circuit: does an immigrant have the right to pursue a Bivens action for wrongful
detention pending deportation? Id. at 980, 980 n.2. The court observed that,
before turning to “the issue of whether [it] ought to extend Bivens to such a
context,” it should address that issue’s “logical predicate”: “whether [it] would
need to extend Bivens in order for illegal immigrants to recover for unlawful
detention during deportation proceedings.” Id. at 981. Noting that the Mirmehdis
challenged their detention during deportation and habeas proceedings, the court
found that there were “alternative, existing process[es] for protecting the plaintiffs’
interests.” Id. at 982. Accordingly, it “decline[d] to extend Bivens to allow the
Mirmehdis to sue federal agents for wrongful detention pending deportation given
the extensive remedial procedures available to and invoked by them and the unique
foreign policy considerations implicated in the immigration context.” Id. at 983.
The Agents urge this Court to find that Mirmehdi bars Plaintiff from
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bringing a Bivens action against them. At the hearing, Plaintiff’s counsel
represented to the Court that Plaintiff is subject to removal proceedings. The
Agents argue that because Plaintiff may challenge the constitutionality of the
traffic stop and subsequent arrest through that process, he has alternative remedial
procedures available to him and therefore cannot bring a Bivens action. In
response, Plaintiff contends that Mirmehdi is “entirely inapplicable to this case.”
(Doc. # 41.) The Court agrees that Mirmehdi is distinguishable. In that case, the
Ninth Circuit confronted a very narrowly drawn issue: whether it was necessary to
“extend Bivens in order for illegal immigrants to recover for unlawful detention
during deportation proceedings.” Mirmehdi, 689 F.3d at 981. Having answered
that question in the negative, the court declined to extend Bivens only in the
context of claims for wrongful detention pending deportation. Plaintiff in the
instant case has not brought a claim for unlawful detention. Indeed, unlike a claim
for wrongful detention pending deportation, the claims in this case did not stem
from the deportation process; the alleged constitutional violations of which
Plaintiff complains preceded the initiation of deportation proceedings. Mirmehdi
is also distinguishable because in that case the plaintiffs had already invoked the
deportation appeals process and sought federal habeas relief. Id. at 982 (“The
Mirmehdis could—and did—challenge their detention through not one but two
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different remedial systems.”); Dukureh v. Hullett, No. C11-1866, 2012 WL
3154966, at *5 (W.D. Wash. Aug. 2, 2012) (holding that Mirmehdi barred the
plaintiff’s Fourth Amendment claims in part because the plaintiff “had and
exercised alternative remedies”) (emphasis added). Here, by contrast, no
alternative remedial process has been invoked. Plaintiff may be able to challenge
the constitutionality of the Agents’ seizure through the deportation proceedings the
government has initiated, but as far as this Court is aware, Plaintiff has not yet had
the opportunity to do so.
Given the limited holding in Mirmehdi—tailored to the specific
factual situation presented in that case—and the factual distinctions between
Mirmehdi and this case, the Court is not convinced that the Ninth Circuit intended
to bar an alien in Plaintiff’s position from bringing a Bivens action. Moreover, the
Court is not bound by decisions of the Ninth Circuit, and to the extent an opinion
from that circuit conflicts with the law in this circuit, the Court must follow Fifth
Circuit precedent. The Fifth Circuit has never confronted the precise issue
addressed in Mirmehdi, but it has allowed an alien subject to deportation
proceedings to bring Bivens claims against federal agents for involuntary servitude
and mistreatment while in detention. See Humphries v. Various Fed. USINS
Emps., 164 F.3d 936, 944 (5th Cir. 1999). Accordingly, the Court concludes that
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Mirmehdi does not preclude Plaintiff from bringing a Bivens claim for unlawful
seizure.
2.

Subject Matter Jurisdiction

The Agents also contend that the Immigration and Nationality Act
(“INA”)—specifically, sections 1252(b)(9) and 1252(g)—deprives this Court of
subject matter jurisdiction over Plaintiff’s Bivens claims. (Doc. # 40 at 4–5.)
i.

Section 1252(b)(9)

Section 1252(b)(9) of the INA provides:
Judicial review of all questions of law and fact, including
interpretation and application of constitutional and statutory
provisions, arising from any action taken or proceeding brought to
remove an alien from the United States under this chapter shall be
available only in judicial review of a final order under this section.
8 U.S.C. § 1252(b)(9). “As its text makes manifest,” this provision “was designed
to consolidate and channel review of all legal and factual questions that arise from
the removal of an alien into the administrative process, with judicial review of
those decisions vested exclusively in the courts of appeals.” Aguilar v. United
States Immigration & Customs Enforcement, 510 F.3d 1, 9 (1st Cir. 2007); see also
Foster v. Townsley, 243 F.3d 210, 213 (5th Cir. 2001) (observing that § 1252(b)(9)
“acts as a ‘zipper clause’ by channeling judicial review of all decisions and
actions” of the INS).
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In I.N.S. v. St. Cyr, 533 U.S. 289, 314 (2001), the Supreme Court
observed that section 1252(b)(9) “applies only ‘[w]ith respect to review of an order
of removal under [section 1252(a)(1)].’” Accordingly, the majority of appellate
courts that have addressed its scope have concluded that section 1252(b)(9) applies
only to claims seeking judicial review of orders of removal. See Chehazeh v.
Attorney Gen. of the United States, 666 F.3d 118, 133 (3d Cir. 2012) (“We
therefore . . . hold that § 1252(b)(9) applies only ‘[w]ith respect to review of an
order of removal under subsection [1252(a)(1)].’) (quoting 8 U.S.C. § 1252(b));
Singh v. Gonzales, 499 F.3d 969, 978 (9th Cir. 2007) (“By virtue of [its] explicit
language, . . . [section] 1252(b)(9) [applies] only to those claims seeking judicial
review of orders of removal.”); Madu v. United States Attorney Gen., 470 F.3d
1362, 1367 (11th Cir. 2006) (“Because section 1252(b)(9) applies only ‘[w]ith
respect to review of an order of removal,’ and this case does not involve review of
an order of removal, we find that section 1252(b)(9) does not apply to this case.”);
see also Ochieng v. Mukasey, 520 F.3d 1110, 1115 (10th Cir. 2008) (stating in
dicta that section 1252(b)(9) would not apply in that case because the petitioner
“would not be seeking review of an order of removal, but review of his detention”).
The First Circuit arrived at a different conclusion, determining that
section 1252(b)(9) “cannot be read to swallow all claims that might somehow
15

touch upon, or be traced to, the government’s efforts to remove an alien,” but
rejecting the argument that its reach is “limited to challenges to singular orders of
removal or to removal proceedings simpliciter.” Aguilar, 510 F.3d at 9, 10. It
“thus read the words ‘arising from’ in section 1252(b)(9) to exclude” only those
“claims that are independent of, or wholly collateral to, the removal process.” Id.
at 11. Accordingly, the court in Aguilar concluded that section 1252(b)(9) stripped
the district court of jurisdiction to hear claims for violations of the petitioners’ right
to counsel during removal proceedings, but did not bar the petitioners’ claims
alleging violations of their Fifth Amendment right to make decisions as to the care,
custody and control of their children. Id. at 18–19. The court noted that
procedural due process rights—such as the right to counsel—“‘arise from’ removal
in that they are part of the fabric of the removal proceedings themselves,” and
neither “independent of, [nor] collateral to, removal proceedings,” while claims
relating to the Fifth Amendment right to family integrity are entirely collateral to
removal. Id. at 18.
The Agents cite to Aguilar and urge the Court to find that Plaintiff’s
Fourth Amendment claims are barred under section 1252(b)(9). The First Circuit’s
reading of that section would most likely strip this Court of jurisdiction over
Plaintiff’s constitutional claims. The traffic stop Plaintiff challenges as an
16

unreasonable seizure and his subsequent arrest are not related to “the fabric of the
removal proceedings itself.” Id. at 18. However, as the traffic stop ultimately led
to the initiation of removal proceedings, it can hardly be called wholly independent
of or collateral to said proceedings. Furthermore, unlike the issue of family
integrity in Aguilar, the reasonableness of the traffic stop at issue in this case is not
“completely irrelevant to the mine-run of issues that will be litigated in removal
proceedings,” see id. at 19, and it has some bearing on Plaintiff’s immigration
status—if the traffic stop at issue was, as Plaintiff claims, made without reasonable
suspicion, the fruits of that illegal seizure may be suppressed.
However, as the Third Circuit noted in Chehazeh, Aguilar appears to
conflict with the Supreme Court’s “explicit instruction” that section 1252(b)(9)
“applies only ‘[w]ith respect to review of an order of removal under [section
1252(a)(1)].” Chehazeh, 666 F.3d at 133 (quoting St. Cyr, 533 U.S. at 313). This
Court will not, therefore, follow Aguilar, and will instead adhere to the
interpretation of section 1252(b)(9) advanced by the Third, Ninth, and Eleventh
Circuits, which is consistent with St. Cyr. Because Plaintiff here is not seeking
review of an order of removal—like the petitioner in Chehazeh, “there has been no
such order with respect to him”—section 1252(b)(9) does not preclude judicial
review of Plaintiff’s constitutional claims.
17

ii.

Section 1252(g)

Section 1252(g) of the INA, titled “Exclusive jurisdiction,” states:
Except as provided in this section and notwithstanding any other
provision of law (statutory or nonstatutory), . . . no court shall have
jurisdiction to hear any cause or claim by or on behalf of any alien
arising from the decision or action by the Attorney General to
commence proceedings, adjudicate cases, or execute removal orders
against any alien under this chapter.
8 U.S.C. § 1252(g). In Reno v. American-Arab Anti-Discrimination Committee,
525 U.S. 471, 482 (1999) (“AADC”), the Supreme Court interpreted section
1252(g) narrowly, concluding that—unlike section 1252(b)(9)—it is not a “zipper
clause” channeling or precluding judicial review of all claims arising from
deportation proceedings. Instead, section 1252(g) “applies only to three discrete
actions that the Attorney General may take: her ‘decision or action’ to ‘commence
proceedings, adjudicate cases, or execute removal orders.’” Id. at 482. The Court
noted that “[i]t is implausible that the mention of three discrete events along the
road to deportation was a shorthand way of referring to all claims arising from
deportation proceedings,” particularly given that there are “many other decisions or
actions that may be part of the deportation process—such as the decisions to open
an investigation, to surveil the suspected violator, [and] to reschedule the
deportation hearing. . . .” Id.
The Agents contend that section 1252(g) strips this Court of
18

jurisdiction over Plaintiff’s Fourth Amendment claims. (Doc. # 40 at 4.) They cite
to Sissoko v. Rocha, 509 F.3d 947, 949 (9th Cir. 2007), in which the Ninth Circuit
held that the plaintiff’s Fourth Amendment false arrest claim was barred by section
1252(g). In that case, the plaintiff, a citizen of Senegal and longtime resident of
the United States, was detained for four months after an immigration inspector
determined that he qualified for expedited removal. Sissoko, 509 F.3d at 949. The
Ninth Circuit concluded that, considering the circumstances, “particularly the
existence in the record of a half-completed [Notice and Order of Expedited
Removal],” the detention challenged by the plaintiff as unlawful “arose from [the
immigration inspector’s] decision to commence expedited removal proceedings.”
Id.
The Agents argue that Plaintiff’s constitutional claims are similarly
barred by section 1252(g) because they arise from the Agents’ decision to
commence removal proceedings. The Court disagrees. In Sissoko, the plaintiff
was challenging his allegedly unlawful detention, which came about because the
immigration inspector determined that he qualified for expedited removal. 509
F.3d at 949. The plaintiff’s claim was therefore based on an injury that arose
directly from the inspector’s decision to commence removal proceedings. In this
case, Plaintiff’s injuries—the alleged Fourth Amendment violations—preceded the

19

decision to commence removal proceedings. The Agents appear to argue that the
traffic stop nevertheless arose from a decision to commence proceedings because
Plaintiff was, at the time the challenged seizure occurred, subject to removal as an
alien present in the country illegally.1 The Agents do not cite to any authority
supporting this argument, and the Court finds it unpersuasive. The Supreme Court
read 1252(g) narrowly in AADC, limiting it to only the three discrete actions
explicitly mentioned in the statute and excluding “other decisions or actions that
may be part of the deportation process,” such as the decision to open an
investigation and the decision to surveil a suspected violator. AADC, 525 U.S. at
482. The Court concludes that Plaintiff’s Bivens claims arise from actions in the
latter category, and do not fall within the ambit of section 1252(g). Accordingly,
the Court is not barred from hearing Plaintiff’s claims.
3.

Qualified Immunity

Plaintiff’s Bivens claims assert that the Agents violated his right,
secured by the Fourth Amendment, to be free from unreasonable seizure when they

1

Presumably that is the argument the Agents are attempting to make when
they point out that Plaintiff was, by operation of law, an “applicant for admission”
subject to mandatory inspection under 8 U.S.C. § 1225, and state that “Plaintiff
was examined at an ‘office’ about his right to remain in the United States, was
asked to sign a ‘voluntary departure’ form, and was placed in ‘detention’ when he
refused to sign the form.” (Doc. # 40 at 4.)
20

stopped the Truck without reasonable suspicion and arrested him without probable
cause. Qualified immunity shields a government official from civil liability for
damages based on the performance of discretionary functions if the official’s acts
were objectively reasonable in light of clearly established law. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). The qualified immunity standard gives
ample room for mistaken judgments by protecting “all but the plainly incompetent
or those who knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224, 229
(1991). In suits brought under federal law, government employees are
presumptively entitled to the defense of qualified immunity, and once the defense
is asserted the burden shifts to the plaintiff to show that immunity does not bar
recovery. Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992); Bennett v. City of
Grand Prairie, Tex., 883 F.2d 400, 408 (5th Cir. 1989).
The Agents contend that they are entitled to qualified immunity
because: (1) they had reasonable suspicion to stop the Truck and probable cause to
arrest Plaintiff, and thus Plaintiff’s Fourth Amendment rights were not violated;
and (2) even if there was a Fourth Amendment violation, their conduct was
objectively reasonable. (Agents’ MSJ at 4–14.) Although the Agents argue that
Plaintiff has failed to plead facts sufficient to defeat a qualified immunity defense,
their arguments rely primarily upon evidence outside the pleadings; specifically,
21

declarations executed by Coy and Vega that they claim show that “the facts known
to [them] demonstrate that . . . they had reasonable suspicion for the stop. . . .” (Id.
at 5.) In response, Plaintiff argues that, to the extent the Agents seek summary
judgment on the issue of qualified immunity, their motion is premature and must
be deferred until after Plaintiff has had an opportunity to conduct discovery.2
“One of the principal purposes of the qualified immunity doctrine is to
shield officers not only from liability, but also from defending against a lawsuit.”
Jackson v. City of Beaumont, 958 F.2d 616, 620 (5th Cir. 1992); see also Siegert v.
Gilley, 500 U.S. 226, 232 (1991) (same). Consequently, “[w]here the defendant
seeks qualified immunity, a ruling on that issue should be made early in the
proceedings so that the costs and expenses of trial are avoided where the defense is
dispositive.” Saucier v. Katz, 533 U.S. 194, 200 (2001) overruled in part by
Pearson v. Callahan, 555 U.S. 223 (2009). In particular, the doctrine is designed to
protect public officials from “the broad-ranging discovery that can be peculiarly
disruptive of effective government.” Anderson v. Creighton, 483 U.S. 635, 646 n.
6 (1987) (internal quotations omitted). The Fifth Circuit has thus “established a

2

Plaintiff has filed a motion seeking to delay adjudication of Defendants’
motions until after he has had an opportunity to take discovery (doc. # 22), which
the Court will address in greater detail below.
22

careful procedure” for determining whether a defendant is entitled to qualified
immunity. Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012).
District courts are instructed to first determine whether “the plaintiff's
pleadings assert facts which, if true, would overcome the defense of qualified
immunity.” Wicks v. Miss. State Emp’t Servs., 41 F.3d 991, 994 (5th Cir. 1995).
“[A] plaintiff seeking to overcome qualified immunity must plead specific facts
that both allow the court to draw the reasonable inference that the defendant is
liable for the harm he has alleged and that defeat a qualified immunity defense with
equal specificity.” Backe, 691 F.3d at 648. If the district court finds that a plaintiff
has so pled, but “remains ‘unable to rule on the immunity defense without further
clarification of the facts,’ it may issue a discovery order ‘narrowly tailored to
uncover only those facts needed to rule on the immunity claim.’” Id. (quoting Lion
Boulos v. Wilson, 834 F.2d 507–08 (5th Cir. 1987)).
Accordingly, this Court will first assess whether the Complaint alleges
facts adequate to defeat the Agents’ qualified immunity defense. In order to defeat
the defense, Plaintiff must allege facts that, if proven, would demonstrate that Coy
and Vega violated clearly established constitutional rights. Wicks, 41 F.3d at 995.

23

i.

Did the Agents’ alleged conduct violate a constitutional
right?

In United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975), the
Supreme Court held that, except at the border, the Fourth Amendment forbids
officers from stopping a vehicle to question its occupants about their immigration
and citizenship status unless the officers “are aware of specific articulable facts,
together with rational inferences from those facts, that reasonably warrant
suspicion that the vehicles contain aliens who may be illegally in the country.”
Reasonable suspicion may be based on a number of factors, including, but not
limited to
(1) characteristics of the area where the vehicle is encountered; (2)
proximity to the border; (3) the usual traffic pattern on the road; (4)
previous experience with criminal activity; (5) information about
recent criminal activity in the area; (6) the driver’s behavior; (7) the
appearance of the vehicle, its type and whether it appears loaded; and
(8) the number, appearance and behavior of the passengers.
United States v. Chavez-Chavez, 205 F.3d 145, 148 (5th Cir. 2000). “[T]he
apparent Mexican ancestry of the occupants of a vehicle” is a relevant factor, but
not sufficient on its own to furnish reasonable suspicion. Brignoni-Ponce, 422
U.S. at 885–86. “No single factor is determinative; the totality of the particular
circumstances must govern the reasonableness of any stop by roving border patrol
officers.” United States v. Morales, 191 F.3d 602, 604 (5th Cir. 1999) (quoting
24

United States v. Moreno-Chaparro, 180 F.3d 629, 631–32 (5th Cir. 1998)).
Furthermore, “[i]n all situations the officer is entitled to assess the facts in light of
his experience in detecting illegal entry and smuggling.” Brignoni-Ponce, 422
U.S. at 885.
The Fifth Circuit has “often held that, for obvious reasons, the
proximity of the stop to the border is the ‘paramount factor’ to consider; and that
this factor ‘is missing’ if the stop is, as here, more than 50 miles from the border.”
Morales, 191 F.3d at 606 (quoting United States v. Aldaco, 168 F.3d 148, 150 (5th
Cir. 1999)); United States v. Inocencio, 40 F.3d 716, 722 (5th Cir. 1995) (“[T]his
Court frequently focuses on . . . whether an arresting agent could reasonably
conclude that a particular vehicle originated its journey at the border.”). In this
case, there is no dispute that the stop occurred more than 50 miles from the border.
(See Agents’ MSJ at 6.) However, “Brignoni-Ponce may still be satisfied if other
articulable facts warrant reasonable suspicion.” Inocencio, 40 F.3d at 722.
The Complaint alleges that the road on which the Truck was traveling
is traveled by thousands of people daily, and has no characteristics that make it
more likely than others to be used as a route for illegal activity. (Compl. ¶¶ 30, 31,
73, 74.) It asserts that the driver behaved normally, keeping his eyes on the road
when the Agents began following the Truck. (Id. ¶¶ 44, 45.) It also alleges that
25

the occupants of the Truck never attempted to hide themselves from view, the
Truck itself never made any movements out of the ordinary or sped up, slowed
down, or changed lanes. (Id. ¶¶ 59–62.) According to the Complaint, the Truck
was a very common model and was not altered for any special purpose. (Id. ¶¶ 17,
18, 19, 20, 21.) Furthermore, Plaintiff alleges that he and his companions were not
driving at an unusual time of day; it was apparently late afternoon. (Id. ¶ 23.)
Finally, the Complaint directly alleges that the Agents stopped the Truck because
its driver and passenger were Hispanic. (Id. ¶ 42.)
These factual allegations, taken in the light most favorable to Plaintiff,
show that the Agents violated his right, secured by the Fourth Amendment, to be
free from unreasonable seizure. Plaintiff alleges that Coy and Vega stopped the
Truck solely on the basis of the occupants’ ethnicity, which is not sufficient to
furnish reasonable suspicion. Brignoni-Ponce, 422 U.S. at 885–86 (holding that
“the apparent Mexican ancestry” of a vehicle’s occupants does not “furnish[]
reasonable grounds to believe that the . . . occupants [are] aliens”). Plaintiff’s other
allegations regarding the circumstances surrounding the stop reveal that the other
factors tending to establish reasonable suspicion were not present; according to the
Complaint, there was nothing unusual or suspicious about the Truck, its occupants,
or the situation. The only factors not specifically precluded by Plaintiff’s
26

allegations are the Agents’ previous experience with criminal activity and
information about recent criminal activity in the area. However, those factors
alone cannot establish reasonable suspicion absent specific articulable facts that
suggest that the vehicle in question contains aliens in the country illegally. See
United States v. Olivares-Pacheco, 633 F.3d 399, 404 (5th Cir. 2011) (“Absent
articulable observations about a vehicle, its operator, its operation, or its cargo,
however, experience alone cannot supply reasonable suspicion.”); Chavez-Chavez,
205 F.3d at 148 (“[T]he fact that a road has been used by alien smugglers is alone
insufficient to justify a stop.”).
As for Plaintiff’s claim for false arrest, the Agents argue that they are
entitled to qualified immunity because they had probable cause to arrest him.
(Agents’ MSJ at 13.) The Agents maintain that they arrested Plaintiff only after he
told them that he: (1) was not a United States citizen; (2) was born in Mexico; and
(3) had no documents justifying his presence in the United States. (Id.) Plaintiff
disputes these allegations, contending that when the Agents arrested him he had
admitted only that he was not a United States citizen. (Doc. # 33 at 23.) Plaintiff
further argues that, in any event, “[e]verything that transpired between [the Agents]
and [Plaintiff] was a product of the preceding illegal seizure of the Truck,” and that
the arrest was therefore unlawful as “[t]here can be no legal arrest that is subsumed
27

within a continuing illegal seizure.” (Id.) Plaintiff is correct. The legality of his
arrest depends upon the legality of the traffic stop that preceded it. If the Agents
lacked reasonable suspicion to stop the Truck, Plaintiff’s subsequent arrest was
unlawful. C.f. Wong Sun v. United States, 371 U.S. 471, 484 (1963) (holding that
an unlawful entry invalidates a subsequent arrest); see also id. (“A contrary holding
here would mean that a vague suspicion could be transformed into probable cause
for arrest by reason of . . . conduct which the arresting officers themselves have
provoked.”). Given that the Complaint alleges facts that, if proven, demonstrate
that the Agents stopped the Truck without reasonable suspicion, the Complaint’s
allegations are sufficient to show that the Agents also violated Plaintiff’s Fourth
Amendment rights by subjecting him to an unlawful arrest.
ii.

Was the right clearly established?

Having found that the Complaint adequately alleges that Plaintiff’s
constitutional right to be free from unreasonable seizures was violated, the Court
must determine whether that right was clearly established. Saucier, 533 U.S. at
201 (“[I]f a violation could be made out on a favorable view of the parties’
submissions, the next, sequential step is to ask whether the right was clearly
established.”). “The relevant, dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a reasonable officer that his
28

conduct was unlawful in the situation he confronted.” Id. at 202. The Fifth Circuit
has observed that “[t]he central concept is that of ‘fair warning’: The law can be
clearly established ‘despite notable factual distinctions between the precedents
relied on and the cases then before the Court, so long as the prior decisions gave
reasonable warning that the conduct then at issue violated constitutional rights.’”
Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (quoting Hope v. Pelzer, 536
U.S. 730, 740 (2002)).
The Complaint alleges that the Agents stopped the Truck and
questioned its passengers solely on the basis of their race. According to Plaintiff,
there was nothing out of the ordinary about the truck, its occupants, or the
surroundings that would have justified the stop. Accepting Plaintiff’s allegations
as true, the Court concludes that no reasonable officer would have believed it was
lawful to detain the Truck for investigatory purposes under the circumstances
alleged in the Complaint. At the time of the stop, it was clearly established that a
border patrol agent cannot detain a vehicle based on the Hispanic appearance of its
occupants. The Court therefore DENIES the Agents’ motion insofar as it seeks
dismissal of Plaintiff’s Bivens claims pursuant to Rule 12(b)(6).

29

iii.

Should Plaintiff be permitted to take discovery?

Plaintiff alleges facts sufficient to defeat qualified immunity. The
Agents would nevertheless have the Court dismiss Plaintiff’s Bivens claims or
enter summary judgment on the basis of evidence outside the pleadings. Coy and
Vega submitted declarations that they assert demonstrate that there was reasonable
suspicion to stop the Truck in which Plaintiff was a passenger. For example, the
Agents claim that smugglers were known to frequent backroads like those on
which Plaintiff and his companions were driving (Agents’ MSJ at 6), and in the
weeks prior to the stop at issue in this case, they “were aware of numerous
complaints from ranchers and other persons about possible alien smuggling in the
area” (id. at 9). They contend that the driver of the Truck behaved suspiciously,
turning onto another road and slowing down when he saw them, and looking at
them so intently in his mirror that he began to swerve off the road. (Id. at 11.) The
Agents also claim that they both had substantial experience detecting aliens and
alien smuggling, and they were informed by that experience on the day in question.
(Id. at 7–8.)
Plaintiff has filed a motion pursuant to Federal Rule of Civil
Procedure 56(d) (“Rule 56(d)”), asking the Court to “deny Defendants’ preanswer, pre-discovery motions for summary judgment or, alternatively, suspend
30

consideration of the same to allow [Plaintiff] time to take discovery. . . .” (Doc.
# 22 at 2.) Rule 56(d) provides that, “[i]f a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its
opposition, the court may: (1) defer considering the motion or deny it; (2) allow
time to obtain affidavits or declarations or to take discovery; or (3) issue any other
appropriate order.” Plaintiff submitted an affidavit identifying several categories
of evidence relied upon by the Agents that he is unable to respond to because he
has had no opportunity to take discovery. Specifically, Plaintiff seeks to obtain
discovery related to Vega’s claim that he was taught to look for certain specific
suspicious behavior; the extent of Vega and Coy’s experience conducting roving
patrols and investigatory stops; the extent to which Roads 187 and 337 were used
for illegal smuggling; and the reports Coy and Vega claim to have received in the
weeks leading up to the stop about alien smuggling in the area. (Doc. # 22 Ex. 1 at
1–2.)
Where, as here, the Court has found that Plaintiff’s Complaint alleges
facts sufficient to defeat qualified immunity, but Plaintiff has not yet had an
opportunity to take discovery, it would be premature to grant summary judgment to
the defendants. See Schultea v. Wood, 47 F.3d 1427, 1433–34 (5th Cir. 1995)
(“The district court need not allow any discovery unless it finds that plaintiff has
31

supported his claim with sufficient precision and factual specificity to raise a
genuine issue as to the illegality of defendant’s conduct at the time of the alleged
acts.”). Accordingly, the Court GRANTS Plaintiff’s Rule 56(d) motion for
discovery. Plaintiff may engage in limited discovery, related only to those issues
Plaintiff identified in his motion (doc. # 22 ex. 1 at 1–2). The Court DENIES
WITHOUT PREJUDICE the Agents’ motion insofar as it seeks summary
judgment on Plaintiff’s Bivens claims. Coy and Vega may re-file the motion after
Plaintiff has had an opportunity to take discovery.
II.

Defendant United States’s Motion
The United States seeks dismissal of or summary judgment on

Plaintiff’s claims on a number of grounds. First, the United States asserts that
Plaintiff’s FTCA claims must be dismissed for lack of subject matter jurisdiction
because he failed to file an administrative tort claim alleging false imprisonment or
assault prior to filing the instant action. (U.S. MSJ at 2.) Second, the United
States argues that, even if Plaintiff did exhaust his administrative remedies, his
claims should be dismissed because Plaintiff’s claims fall within the detention-ofgoods exception under the FTCA. (Id. at 6.) The United States also argues that
Plaintiff’s FTCA claims are barred by the unlawful acts doctrine. (Id. at 9.) Next,
the United States contends that, in any event, Plaintiff has not stated actionable tort
32

claims under Texas law. (Id. at 7–9.) Finally, the United States argues that
Plaintiff’s claims for declaratory relief must be dismissed because the Declaratory
Judgment Act does not provide an independent basis for relief. (Doc. # 36 at 3.)
As a preliminary matter, the Court notes that a motion for summary
judgment is premature where, as here, no discovery has occurred and the defendant
has not even filed an answer. “Summary judgment should not . . . ordinarily be
granted before discovery has been completed.” Xerox Corp. v. Genmoora Corp.,
888 F.2d 345, 254 (5th Cir. 1989). Consequently, the Court will construe the
United States’s motion as a motion to dismiss Plaintiff’s claims, and will not
consider matters outside the pleadings.3
A.

Failure to Exhaust Administrative Remedies
Under the Federal Tort Claims Act (“FTCA”),

[a]n action shall not be instituted upon a claim against the United
States for money damages for injury . . . caused by the negligent or
wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment, unless the

3

With one exception: the Court will consider matters outside the pleadings
that bear on the United States’s argument that the Court lacks subject matter
jurisdiction because Plaintiff failed to exhaust his administrative remedies. See
Robinson v. TCI/US W. Commc’ns Inc., 117 F.3d 900, 904 (5th Cir. 1997) (“A
court may base its disposition of a motion to dismiss for lack of subject matter
jurisdiction on (1) the complaint alone; (2) the complaint supplemented by
undisputed facts; or (3) the complaint supplemented by undisputed facts plus the
court’s resolution of disputed facts.”).
33

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. § 2675(a). This exhaustion requirement “is a prerequisite to suit under
the FTCA.” Life Partners Inc. v. United States, 650 F.3d 1026, 1030 (5th Cir.
2011). The United States claims that Plaintiff has not exhausted his administrative
remedies because he did not file an administrative claim with CBP specifically
alleging false imprisonment or assault. (U.S. MSJ at 5.) The administrative tort
claim filed with CBP described the facts and circumstances surrounding the traffic
stop in question but did not state that Plaintiff had been subjected to false
imprisonment or assault; the claim alleged only “an illegal race based stop” by
Vega and Coy. (U.S. MSJ at 5; Agents’ MSJ Ex. 1 at 32.)
The Fifth Circuit does not require plaintiffs “to specifically enumerate
legal theories of recovery in their administrative claims.” Frantz v. United States,
29 F.3d 222, 224 (5th Cir. 1994). The purpose of § 2675 of the FTCA
will be served as long as a claim brings to the Government’s attention
facts sufficient to enable it thoroughly to investigate its potential
liability and to conduct settlement negotiations with the claimant.
Accordingly, we think that if the Government's investigation of [the
plaintiffs’] claim should have revealed theories of liability other than
those specifically enumerated therein, those theories can properly be
considered part of the claim.

34

Rise v. United States, 630 F.2d 1068, 1071 (5th Cir. 1994). Accordingly, as long
as Plaintiff’s administrative claim provided the government with enough
information to conduct an investigation and to put it on notice of the possibility of
a false imprisonment and an assault claim, those claims were exhausted. Frantz, 29
F.3d at 225. In this case, Plaintiff’s administrative claim described the traffic stop
in detail, including the fact that Coy grabbed him by the arm (the basis for
Plaintiff’s assault claim) and the fact that he was detained by the Agents following
the allegedly illegal seizure (the basis for Plaintiff’s false imprisonment claim).
(Agents’ MSJ Ex. 1 at 34.) The Court therefore concludes that Plaintiff has
exhausted his administrative remedies, and declines to dismiss Plaintiff’s tort
claims on this basis.
B.

The Detention-of-Goods Exception
The FTCA provides that the “United States shall be liable, respecting

the provisions of this title relating to tort claims, in the same manner and to the
same extent as a private individual under like circumstances. . . .” 28 U.S.C.
§ 2674. However, the FTCA contains a number of exceptions, one of which is that
the FTCA does not apply to “[a]ny claim arising in respect of the assessment or
collection of any tax or customs duty, or the detention of any goods, merchandise,
or other property by any officer of customs or excise or any other law enforcement
35

officer. . . .” 28 U.S.C. § 2680(c). The Supreme Court has interpreted this
provision to mean that any claim “‘arising out of’ the detention of goods” is
exempted. Kosak v. United States, 465 U.S. 848, 854 (1984). Accordingly, the
Fifth Circuit has held that intentional tort claims for assault, battery, and false
arrest and imprisonment are barred by the detention-of-goods exception “if the
alleged torts arose from the inspection, seizure, or detention of goods by a Customs
agent because such claims involve conduct covered by § 2680(c).” Jeanmarie v.
United States, 242 F.3d 600, 604 (5th Cir. 2001). The Fifth Circuit has also
interpreted § 2680(c) very broadly “to preclude suits for damages arising out of the
allegedly tortious activities of IRS agents when those activities were in any way
related to the agents’ official duties.” Capozzoli v. Tracey, 663 F.2d 654, 658 (5th
Cir. 1981).
The United States argues that Plaintiff’s tort claims must be dismissed
pursuant to § 2680(c) because they “arise[] from alleged torts ‘committed incident
to the performance of an agent’s duties under § 2680(c),’ namely Agent Vega’s
and Coy’s stop of the truck Plaintiff was riding in and his subsequent arrest.”
(U.S. MSJ at 6.) In response, Plaintiff contends that § 2680(c) was not intended to
apply to the situation at hand here, where the detention of property—the
Truck—was merely incidental to the detention of its occupants. The Court agrees.
36

In this case, the officers detained the vehicle in order to ask its occupants about
their citizenship and immigration status, not to take any action with respect to the
vehicle itself. The United States has not provided the Court with any authority
indicating that § 2680(c) applies to claims arising from investigatory stops, and,
indeed, a recent Fifth Circuit case seems to foreclose its application in this case.
Davila v. United States, 713 F.3d 248, 256 (5th Cir. 2013).
In Davila, the plaintiff asserted a claim against the government under
the FTCA for false imprisonment. 713 F.3d at 254. Davila was detained at a
United States Border Patrol checkpoint while CBP agents searched his car. Id. at
257. After his son fled in the vehicle, with CBP agents in pursuit, Davila was
arrested and detained in a county jail. Id. It was this detention that gave rise to his
claim for false imprisonment. Id. The Fifth Circuit held that the detention-ofgoods exception did not apply to Davila’s claim of false imprisonment because it
was “unrelated to the vehicle or the detention thereof,” and Davila did “not contend
that the claim arose in respect of the detention of his vehicle.” Id. The court took
into account that “[n]o contraband had been found in the vehicle, [and] the search
had long since ended” by the time Davila was arrested and detained. Id. In this
case, no contraband was ever sought, and no search was ever conducted. The

37

Court concludes that the detention-of-goods exception does not apply to Plaintiff’s
claims of false imprisonment or assault.
C.

Unlawful Acts Rule
Under Texas’s unlawful acts rule, “no action may be predicated upon

an admittedly unlawful act of the party asserting it.” Denson v. Dallas Cnty. Credit
Union, 262 S.W.3d 846, 855 (Tex. App. 2008). “Courts have interpreted this
defense to mean that if the illegal act is inextricably intertwined with the claim and
the alleged damages would not have occurred but for the illegal act, the plaintiff is
not entitled to recover as a matter of law.” Carcamo-Lopez v. Does 1 through 20,
865 F. Supp. 2d 736, 763 (W.D. Tex. 2011) (citing Sharpe v. Turley, 191 S.W.3d
362, 366 (Tex. App. 1935)). A plaintiff’s illegal act is “inextricably intertwined”
with his claim if “it is necessary for the plaintiff to prove, as part of his cause of
action, his own . . . illegal transaction.” Carcamo-Lopez, 865 F.Supp.2d at 763
(citing Marathon Oil Co. v. Hadley, 107 S.W.2d 883, 885 (Tex. App. 1935)). A
defendant may not claim a defense under the unlawful acts rule if the plaintiff
can show a complete cause of action without being obliged to prove his own
illegal act, although such act may incidentally appear, and may be
explanatory even of other facts in the case, it being sufficient if his cause of
action is not essentially founded upon something which is illegal.
Id.

38

Here, the United States argues that it may invoke the unlawful acts
doctrine because Plaintiff was engaged in illegal conduct—specifically, the United
States claims that he was present in the country illegally—at the time the alleged
false imprisonment and assault took place. According to the United States, the
illegal conduct is therefore “inextricably interwined” with the FTCA claim.
Furthermore, the United States argues that Plaintiff’s illegal conduct was a but-for
cause of the FTCA claim because he “would not have been arrested had he not
been illegally present in the United States.” (U.S. MSJ at 10.) In response,
Plaintiff contends that his claims cannot be dismissed based on the unlawful acts
rule, because he does not “acknowledge alienage”—i.e., the allegedly illegal
conduct—in the Complaint. (Doc. # 34 at 24.) Plaintiff further asserts that, even
assuming he was in the country illegally, his actions were not “inextricably
intertwined” with his FTCA claim, because his immigration status is entirely
independent of his false imprisonment and assault claims against Defendants.
The Court agrees with Plaintiff. His illegal act is not “inextricably
intertwined with the claim.” While Plaintiff’s immigration status is certainly
incidental to this case, Plaintiff does not have to prove the illegality or legality of
his immigration status in order to bring a claim against Defendants. The Court

39

therefore concludes that the unlawful acts rule does not bar Plaintiff’s tort claims
against the United States.
D.

Failure to State a Claim
The United States also argues that Plaintiff’s FTCA claims must be

dismissed because Plaintiff has failed to allege facts sufficient to state a claim for
false imprisonment or assault.
1.

False Imprisonment
“The essential elements of false imprisonment are: (1) willful

detention; (2) without consent; and (3) without authority of law.” Randall’s Food
Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). There does not appear
to be any dispute that the first two elements are satisfied in this case. However, the
United States claims that Plaintiff has failed to establish—or allege facts that, if
true, would establish—the third. See Sears, Roebuck & Co. v. Castillo, 693
S.W.2d 374, 376 (Tex. 1985) (“The plaintiff must prove the absence of authority in
order to establish the third element of a false imprisonment cause of action.”). The
United States contends that Plaintiff’s false imprisonment claim fails “because [the
Agents] had lawful authority [to] stop the pickup truck in order to conduct an
immigration inspection, and to arrest Plaintiff. . . .” (U.S. MSJ at 7.) The United
States is, of course, correct that Coy and Vega have “the authority to enforce
40

immigration laws without incurring tort liability.” (Id.) However, the Agents do
not have the lawful authority to detain individuals without reasonable suspicion in
violation of the United States Constitution. As discussed above, the Complaint
alleges facts adequate to reasonably infer that the Agents did not have reasonable
suspicion to conduct the investigatory stop at issue here. Accordingly, Plaintiff has
adequately alleged that he was detained without authority of law.
Citing to Texas Penal Code §§ 9.02, 9.03, and 9.51, the United States
also argues that “Plaintiff’s false imprisonment claim should . . . be dismissed
because the Agents’ actions were justified based on the circumstances in this case.”
(Agents’ MSJ at 7.) The United States does not further elaborate on this argument,
and the language of the Texas Penal Code provisions cited to does not provide
clarification. The Court will not attempt to make the United States’s argument for
it. Accordingly, the Court concludes that Plaintiff has stated a claim for false
imprisonment upon which relief can be granted. The United States’s Motion is
DENIED insofar as it seeks dismissal of Plaintiff’s false imprisonment claim.
2.

Assault

A person commits the intentional tort of assault when he:
“intentionally or knowingly causes physical contact with another when the person
knows or should reasonably believe that the other will regard the contact as
41

offensive or provocative.” Tex. Penal Code § 22.01; see Villafranca v. United
States, 587 F.3d 257, 260 (5th Cir. 2009) (“In Texas, the intentional tort of assault
is identical to criminal assault.”). The United States maintains that Plaintiff has
failed to plead facts sufficient to state a claim for assault. (U.S. MSJ at 8.) There
is no question that Plaintiff alleges that Coy intentionally caused physical contact
with him; the Complaint states that Coy “grabbed [Plaintiff] by the upper arm,
[and] pulled him out of the Truck. . . .” (Compl. ¶ 66.) The Complaint also alleges
facts sufficient for the Court to reasonably infer that, under the
circumstances—during the course of an unjustified investigatory stop—Coy knew
or should reasonably have believed that Plaintiff would regard the contact as
offensive or provocative.
The United States argues that it is also entitled to Texas’s “civil
privilege defense,” Tex. Penal Code § 9.51(a). Section 9.51(a) provides that:
A peace officer . . . is justified in using force against another
when and to the degree the actor reasonably believes the force is
immediately necessary to make or assist in making an arrest . . . if:
(1) the actor reasonably believes the arrest or search is
lawful . . . ; and
(2) before using force, the actor manifests his purpose to
arrest or search and identifies himself as a peace officer
. . . , unless he reasonably believes his purpose and
identity are already known by or cannot reasonably be
made known to the person to be arrested.

42

Accepting Plaintiff’s allegations as true, Coy could not reasonably have believed
that Plaintiff’s detention and subsequent arrest were lawful in light of the lack of
reasonable suspicion supporting the traffic stop. Accordingly, the Court concludes
that Plaintiff has stated a claim for assault upon which relief can be granted, and
DENIES the United States’s Motion insofar as it seeks dismissal of that claim.
E.

Declaratory Relief Claims
Plaintiff seeks declarations that the Agents exceeded their statutory

and regulatory authority under 8 U.S.C. § 1357 when they stopped the Truck
without reasonable suspicion. The United States asserts that the Court does not
have jurisdiction to hear Plaintiff’s claims for declaratory relief.4 (Doc. # 36 at 3.)
The Declaratory Judgments Act, 28 U.S.C. §§ 2201, 2202, “is not an independent
source of federal jurisdiction . . . ; the availability of such relief presupposes the
existence of a judicially remediable right.” Schilling v. Rogers, 363 U.S. 666, 677
(1960). Plaintiff apparently claims a right to judicial review of the Agents’ actions

4

The United States asserted this argument for the first time in its reply brief.
Normally, the Court would not address an argument to which the Plaintiff did not
have an opportunity to respond. See United States v. Rodriguez, 602 F.3d 346,
350 (5th Cir. 2010) (“For obvious reasons, our court generally will not consider an
issue raised for the first time in a reply. . . .”). However, the Court must determine
whether it has jurisdiction before addressing the merits of a case, and may examine
its jurisdiction sua sponte if necessary. See Filer v. Donley, 609 F.3d 643, 646 (5th
Cir. 2012).
43

under the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701–706.
The APA states that “[a] person suffering legal wrong because of
agency action, or adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C.
§ 702. The APA defines “agency” as “each authority of the Government of the
United States,” 5 U.S.C. § 551(1), and “agency action” includes “the whole or a
part of an agency rule, order, license, sanction, relief, or the equivalent or denial
thereof, or failure to act. . . ” 5 U.S.C. § 551(13). Where judicial review is sought
pursuant to the general review provisions of the APA, rather than pursuant to
specific authorization in a substantive statute, the “agency action” in question must
be “final agency action.” 5 U.S.C. § 704 (“Agency action made reviewable by
statute and final agency action for which there is no remedy in a court are subject
to judicial review.”); Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990). The
Supreme Court has directed courts to look to four factors when determining when
agency action is final: “(1) whether the challenged action is a definitive statement
of the agency’s position, (2) whether the action has the status of law with penalties
for noncompliance, (3) whether the impact on the plaintiff is direct and immediate,
and (4) whether the agency expects immediate compliance.” Dunn-McCampbell
Royalty Interest, Inc. v. Nat’l Park Serv., 112 F.3d 1283, 1288 (5th Cir. 1997).
44

The Complaint states that “Defendant Coy’s and Vega’s actions
constitute agency action within the meaning of the APA.” (Compl. ¶ 10.) Plaintiff
does not explain or support this assertion, and, indeed, it is almost certainly
impossible to do so. The Court is not aware of any authority that stands for the
proposition that an individual agent’s actions—such as a traffic stop or an arrest—
qualify as “agency action,” much less “final agency action.” The Court therefore
concludes that Plaintiff has failed to establish that this Court has jurisdiction over
his claims for declaratory relief pursuant to the APA. The United States’s Motion
is GRANTED insofar as it seeks dismissal of Plaintiff’s claims for declaratory
relief.
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and
DENIES WITHOUT PREJUDICE IN PART the Agents’ Motion (doc. # 12);
GRANTS Plaintiff’s Rule 56(d) Motion (doc. # 22); and GRANTS IN PART and
DENIES IN PART the United States’s Motion (doc. # 13). Plaintiff’s claims for
declaratory relief against Defendants are DISMISSED.
IT IS SO ORDERED.
DATED: San Antonio, Texas, June 21, 2013.

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_____________________________
David Alan Ezra
Senior United States District Judge