Opinion
CV-01-718-ST.
February 14, 2006
FINDINGS AND RECOMMENDATION
INTRODUCTION
Following a July 24, 2002 appeal to the Ninth Circuit ( Wong v. United States Immigration Naturalization Serv., et al, 373 F3d 952 (9th Cir 2004)), and further proceedings in this court on remand, plaintiffs filed a Fourth Amended Complaint (docket #170).
Plaintiff Kwai Fun Wong ("Wong") has now filed a Motion for Partial Summary Judgment Against the United States (docket #192), and the United States has filed a Cross-Motion for Partial Summary Judgment on Plaintiff Kwai Fun Wong's False Imprisonment Claim (docket #206). For the reasons that follow, this court recommends that Wong's motion be denied and the United States cross-motion be granted without prejudice and with leave to amend.
ANALYSIS
These two motions concern that portion of Wong's Fifth Claim for Relief under the Federal Tort Claims Act ("FTCA") alleging a claim for false imprisonment.
I. Background Facts and Pertinent Allegations
The factual and procedural history of this case has been throughly discussed in this court's prior opinions, as well as in the Ninth Circuit's decision, and need not be repeated here. The pertinent factual history and allegations are set forth only as necessary to rule on the pending motions.
II. Timeliness of the FTCA Claim
The United States contends that this court has no subject matter jurisdiction over Wong's FTCA claim because that it is untimely. For the reasons that follow, that argument is rejected.
A. Procedural History of the FTCA Claim
Wong alleges that she is a citizen of Hong Kong, the Matriarch of the Tao Heritage, and the leader of plaintiff Wu-Wei Tien Tao Association ("Association"), a worldwide non-profit religious organization registered in Oregon. Fourth Amended Complaint, ¶¶ 3-4. In their Fifth Claim for Relief, Wong and the Association allege that the United States is liable to them under the FTCA for the torts of: (1) false imprisonment (as to Wong only); (2) intentional interference with economic relations; and (3) negligence (as to Wong only). Id., ¶ 46. Both plaintiffs seek awards of economic damages on this claim, and Wong also seeks non-economic damages. Id., ¶ 47.
The detention that forms the basis of Wong's FTCA claim for false imprisonment took place on June 17, 1999, when the United States Immigration and Naturalization Service ("INS") detained Wong at its Portland, Oregon office. On that same date, Wong was arrested, handcuffed and taken to the Multnomah County Detention Center ("MCDC"). Id., ¶ 17. Wong was imprisoned at MCDC for five days, during which time she alleges that she was subjected to unlawful conditions of confinement. Id., ¶¶ 17-18. On June 22, 1999, Wong was removed from the United States and remains outside the country. Id., ¶ 20.
All functions of the INS have now been transferred to the Department of Homeland Security. However, because this agency was known as the INS at all times relevant to plaintiffs' allegations, this court will refer to it as the INS, as did the Ninth Circuit. Wong, 373 F3d at 958 n4.
The conditions of Wong's confinement are the subject of other claims in the Fourth Amended Complaint.
On May 18, 2001, plaintiffs simultaneously filed the original Complaint in this case and hand-delivered an administrative claim against the INS. Plaintiff's Exhibits 16-17. Neither the original Complaint (docket #1) filed on May 18, 2001, nor the First Amended Complaint (docket #30) filed on October 17, 2001, included a claim against the United States under the FTCA. On October 30, 2001, defendants filed a Motion to Dismiss the First Amended Complaint (docket #31), which this court set for oral argument along with several other pending motions on December 17, 2001. Minute Order dated November 5, 2001 (docket #41).
References to Plaintiffs' Exhibits are to those documents attached to the Affidavit of Tom Steenson with Exhibits in Support of Plaintiff Kwai Fun Wong's Motion for Partial Summary Judgment Against Defendant United States of America (docket #195).
The First Amended Complaint did contain other claims against the United States for declaratory relief (Third Claim) and violation of RFRA (Fourth Claim).
On November 9, 2001, plaintiffs filed a Motion to Allow Filing of a Second Amended Complaint (docket #44), seeking to add their claim under the FTCA on or after November 20, 2001, when the administrative claim would have been deemed denied. 28 USC § 2675(a) ("The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section."). On November 14, 2001, plaintiffs filed an Amended Motion to Allow Filing of a Second Amended Complaint (docket #46). The purpose of that amended motion was to add a claim for attorney fees under the RFRA, which was inadvertently omitted from the first motion to amend. Absent a request for expedited consideration, that amended motion went advisement on December 17, 2001. LR 7.1(g); see Minute Order dated November 20, 2001 (docket #47) (setting oral argument on docket #46 for December 17, 2001). Shortly thereafter, on December 3, 2001, the INS issued a written decision denying plaintiffs' administrative claim because plaintiffs "have exercised [their] option under § 2675(a) to file suit." Government Exhibit 19.
On December 17, 2001, this court heard oral argument on the pending motions. After receiving additional briefing, on January 29, 2002, this court struck the case schedule and took all the pending motions under advisement, including defendants' motions to dismiss, to compel and to clarify, as well as plaintiffs' motion for a stay of discovery and to amend to include their FTCA claim. On April 5, 2002, this court issued an Order, Findings, and Recommendations (docket #62) ("FR"), which, among other things, granted plaintiff's motion to amend and recommended denial of defendants' motion to dismiss. District Court Judge Robert E. Jones adopted the FR in its entirety on June 25, 2002. Order (docket #69). Almost six weeks later, on August 13, 2002, plaintiffs filed the Second Amended Complaint (docket #83) which contained the FTCA claim.
B. Filing Time Lines for FTCA Claims
Defendants argue that plaintiffs filed their FTCA claim either too early or too late. However, this court concludes that plaintiffs' FTCA claim should be deemed timely.
In order to proceed with a claim against the United States under the FTCA, the plaintiff must file an administrative claim against the relevant federal agency. The statute governing such claims provides:
A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.28 USC § 2401(b).
This statute requires that a plaintiff meet two limitations periods. "A claim must be filed with the agency within two years of the claim's accrual and the claimant must file suit within six months of administrative denial of the claim. If either requirement is not met, suit will be time barred." Dyniewicz v. United States, 742 F2d 484, 485 (9th Cir 1984). Wong timely filed her administrative claim for false imprisonment with the INS. However, the government contends that she did not commence her FTCA claim within six months after the INS denied her claim on December 3, 2001. If the action is deemed to have begun on November 9 or 14, 2001, when plaintiffs filed their motions to amend their pleadings to add a claim under the FTCA, then the government argues that it was filed too early. At that point, the INS had not yet denied the claim. Alternatively, if the action is deemed to have begun on August 13, 2002, with the filing of the Second Amended Complaint, then the government argues that it was filed too late since the six month period expired on June 3, 2002.
The "obvious purpose [of 28 USC § 2401(b)] is to encourage the prompt presentation of claims" against the United States. United States v. Kubrick, 444 US 111, 117 (1979). Where those ends have been met and where there is no prejudice to the United States, equitable tolling may be warranted by the interests of justice. "The purpose of a statute of limitation is `to prevent assertion of stale claims against a defendant.' Where the danger of prejudice to the defendant is absent, and the interests of justice so require, equitable tolling of the limitations period may be appropriate." Azer v. Connell, 306 F3d 930, 936 (9th Cir 2002) quoting Daviton v. Columbia/HCA Healthcare Corp., 241 F3d 1131, 1136 (9th Cir 2001) and citing Stoll v. Runyon, 165 F3d 1238, 1242 (9th Cir 1999).
In this case, the government was not faced with the presentation of stale claims and has made no showing of any prejudice whatsoever. To the contrary, the government was fully apprised of plaintiffs' claims by their administrative filing, had full notice of plaintiffs' intended FTCA claim just prior to the expiration of the six-month administrative review period, and was aware that plaintiffs were seeking to add the FTCA claim to this case after expiration of the six-month administrative review period. See Amended Motion to Allow Filing of Second Amended Complaint (docket #46) moving "for an order allowing the filing of plaintiffs' Second Amended Complaint on or after November 20, 2001.").
In response to plaintiffs' motion to amend, defendants argued that the "only way for Plaintiffs to properly invoke this Court's jurisdiction under the FTCA is to institute a new action once they have completely exhausted their administrative remedies." Memorandum in Support of Defendants' Opposition to Plaintiffs' Motions to Allow Filing of Second Amended Complaint (docket #50), p. 5 (citations omitted). On April 5, 2002, this court rejected that argument and allowed the filing of a Second Amended Complaint adding an FTCA claim. FR (docket #62), pp. 45-47. At that point in time, plaintiffs had exhausted their administrative remedies and were within the window of time allowed for filing their FTCA claim. However, this court also issued a recommendation denying defendants' Motion to Dismiss the First Amended Complaint (docket #31) to which the government filed objections. Until a final ruling was issued on that motion two months later, it was not clear to the parties which claims plaintiffs could include in a further amended complaint. By that time, more than six months had passed since the denial of plaintiffs' administrative claim.
Accepting the position of the government on this issue would effectively impose on plaintiffs a court-created Catch-22 and make a mockery of this court's prior ruling allowing the filing of the FTCA claim in this action, while doing nothing to serve the intended purpose of the statute of limitations in preventing the assertion of stale claims. No case of which this court is aware addresses a situation quite on point with the one here. In essence, the government seeks to deny plaintiffs an opportunity to present their FTCA claims due solely to the delay inherent in the Magistrate Judge system. Absent consent of the parties, Magistrate Judges make recommendations to a district court judge on dispositive pretrial matters. 28 USC § 636(b) (c). This necessarily causes delay in entry of a final order. Had the government filed no objections by April 26, 2002, to the recommendation denying their motion to dismiss, then the FR would have been immediately referred to Judge Jones who would have issued a final ruling shortly thereafter and well before June 3, 2002. Alternatively, had all parties consented to a Magistrate Judge, then this court's ruling on the motion to dismiss would have been final, which would have given plaintiffs over eight weeks within which to add the FTCA claim prior to the expiration of the six-month period set forth in 28 USC § 2401(b). Instead, no final ruling on the motion to dismiss was issued until several weeks after that period expired.
This court will not countenance the result that defendants seek, namely that plaintiffs' FTCA claims be deemed premature or too late based upon the happenstance of the timing of this court's rulings. Plaintiffs had already instituted this action alleging other claims against defendants, including the United States. They did not prematurely file their FTCA claims, nor did they seek to do so when they filed their motions to amend. Instead, they sensibly sought to add to this case the FTCA claims which arise out of the identical events as do their other claims. Plaintiffs moved to amend just prior to the expiration of six months from the date they filed their administrative claim and expressly included a request that they be allowed to add their FTCA claims to this action after that period expired. This court allowed them to do so. However, plaintiffs appropriately waited until a final ruling on the defendants' motion to dismiss to file their amended complaint. By then, plaintiffs would know which claims to include in order to comply with the court's rulings. The government seeks to use the time period between issuance of this court's April 5 and June 25, 2002 rulings to its advantage, arguing that plaintiffs FTCA claims are barred because their August 13, 2002 Second Amended Complaint was filed too late and cannot relate back to earlier pleadings because plaintiffs' motions to amend were filed too early.
The government has suffered no prejudice whatsoever and the purposes of the administrative filing requirements and time lines have been more than met. The government had notice of the intended FTCA claims with the filing of the motions to amend and now simply seeks to gain an unwarranted advantage.
Accordingly, this court concludes that in the interests of justice, the limitations period should be tolled for the 81 days between issuance of the April 25, 2002 FR on the motion to dismiss and the June 25, 2005 final order adopting that FR. Adding that period of time to the limitations period would require plaintiffs to have begun action on their FTCA claims no later than August 23, 2002. As a result, the FTCA claims asserted in the August 13, 2002 Second Amended Complaint are rendered timely.
Thus, to the extent it is premised upon the applicable statute of limitations, the United States' motion for summary judgment against the false imprisonment portion of the FTCA should be denied. However, as explained below, the motion should be granted on the basis that there has been no waiver of the sovereign immunity of the United States, at least with respect to the false imprisonment claim.
III. Waiver of Sovereign Immunity Under the FTCA
The United States also argues that the portion of the Fifth Claim alleging a claim for false imprisonment by Wong under the FTCA fails because the United States has not waived sovereign immunity. This court agrees and, therefore, concludes that although the FTCA claim should be deemed timely filed, this court nevertheless lacks subject matter jurisdiction over the false imprisonment portion of Wong's Fifth Claim for Relief. However, Wong should be allowed leave to plead a claim based on intentional conduct about the manner in which she was detained when defendants executed the expedited removal order.
The FTCA "provides a limited waiver of the sovereign immunity of the United States for torts committed by federal employees acting within the scope of their employment." Nurse v. United States., 226 F3d 996, 1000 (9th Cir 2000). When the FTCA applies, the United States may be held civilly liable for the torts of its employees "in the same manner and to the same extent as a private individual under like circumstances." 28 USC § 2674. However, where the claim falls within one or more of the statutory exceptions to the FTCA, then the "cause of action must be dismissed for want of federal subject matter jurisdiction." Estate of Trentadue ex rel. Aguilar v. United States, 397 F3d 840, 853-54 (10th Cir 2005) (citations omitted); see also Nurse, 226 F3d at 1000.
The FTCA specifically waives sovereign immunity for liability arising out of certain intentional torts, including false imprisonment or false arrest, when committed by federal investigative or law enforcement officers, including INS officials. 29 USC § 2680(h); Caban v. United States, 671 F2d 1230, 1234 n4 (2nd Cir 1982). However, one of the enumerated exceptions to the FTCA's waiver of sovereign immunity is any claim: (1) "based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid;" or (2) based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 USC § 2680(a). These so-called "due care" and "discretionary function" exceptions completely bar any claim within their ambit:
The FTCA gives the plaintiff even less than he would receive under state law in many cases, because the statute is hedged with protections for the United States. . . . [T]he FTCA allows neither jury trial nor punitive damages. And recovery may be barred altogether if the claim arises from a "discretionary function" or the "execution of a statute or regulation, whether or not such statute or regulation is valid."Carlson v. Green, 446 US 14, 28 n1 (1980) (Powell, J. and Stewart, J., concurring), quoting 28 USC § 2680(a).
Central to Wong's false imprisonment claim under the FTCA is her contention that her detention was illegal because the INS had no authority to detain her. Wong argues that she was not an "arriving" alien pursuant to Sissoko v. Rocha, 412 F3d 1021 (9th Cir 2005) and Rosenburg v. Flueti, 374 US 449 (1963) because her departure was "brief, casual, and innocent." This court previously considered and rejected this argument prior to the decision in Sissoko. See FR (docket #62), pp. 17-25; see also, Wong, 373 F3d at 974 (describing due process rights of "non-admitted aliens such as Wong"). Sissoko does not appreciably alter the legal landscape relative to this issue. Sissoko was a "legalization" applicant under 8 USC § 1255a (as opposed to an applicant for adjustment of status under 8 USC § 1255) and departed the country with advance parole. Unlike Sissoko, Wong did not obtain advance parole prior to departing the United States and did not qualify for adjustment of status under 8 USC § 1255a, a statute which expressly provides that "brief, casual, and innocent absences from the United States" will not interfere with an assertion of "continuous physical presence in the United States" for purposes of legalization proceedings. Thus, this court adheres to its prior rulings on this subject and concludes that neither Sissoko nor Flueti provide a basis from which to argue that Wong was not subject to the expedited removal statute, 8 USC § 1225(b)(1)(A)(i).
Wong also argues that the INS acted outside its statutory authority in enacting the regulation pursuant to which she was detained. Wong was detained pursuant to 8 CFR § 235.3(b)(2)(iii), which provides as follows:
Detention and parole of alien in expedited removal. An alien whose inadmissibility is being considered under this section or who has been ordered removed pursuant to this section shall be detained pending determination and removal, except that parole of such alien, in accordance with section 212(d)(5) of the Act, may be permitted only when the Attorney General determines, in the exercise of discretion, that parole is required to meet a medical emergency or is necessary for a legitimate law enforcement objective.
(Emphasis added).
Wong contends that in enacting this regulation, the INS acted outside its statutory authority because Congress authorized only expedited removal, and not detention, of arriving aliens:
(b) Inspection of applicants for admission
(1) Inspection of aliens arriving in the United States and certain other aliens who have not been admitted or paroled
(A) Screening
(i) In general
If an immigration officer determines that an alien . . . who is arriving in the United States . . . is inadmissible under section 1182(a)(6)(c) or 1182(a)(7) of this title, the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution.8 USC § 1225(b)(1)(A)(i).
Specifically, Wong contends that this statute authorizes only the removal and not the detention of arriving aliens who are determined to be inadmissible. As a consequence, Wong asserts that the INS exceeded its statutory authority by enacting 8 CFR § 235.3 requiring mandatory detention and, therefore, that her detention pursuant to that regulation was unlawful. The difficulty with Wong's argument is that her false imprisonment claim turns on the contention that her detention was pursuant to an invalid regulation which falls within the ambit of the "due care" exception to the FTCA.
In Welch v. United States, 409 F3d 646 (4th Cir 2005), petition for cert filed, 74 USLW 3275, October 24, 2005, No. 05-529, Welch was detained for over a year under an immigration statute that the court later determined was unconstitutional as applied to him due to its failure to provide for a bail hearing. The Fourth Circuit affirmed the dismissal of Welch's claim for false imprisonment under the "due care" exception to the FTCA, applying a two-part analysis:
First, we determine whether the statute or regulation in question specifically proscribes a course of action for an officer to follow. Second, if a specific action is mandated, we inquire as to whether the officer exercised due care in following the dictates of the statute or regulation. If due care was exercised, sovereign immunity has not been waived.Welch, 409 F3d at 652, citing Crumpton v. Stone, 59 F3d 1400, 1403 (DC Cir 1995).
Because of the mandatory language of the statute under which Welch was detained, the court found the first part of the analysis satisfied:
The language in this provision specifically proscribes a course of action to be followed by officers of the United States. The detention . . . is mandatory; the `shall' language in the provision indicates that an individual officer cannot deviate from its enforcement. Once Welch was deemed deportable, the INS officers had no discretion in their actions. The decision to detain him was statutorily required, thus satisfying the first requirement of the due care exception.Id.
As in Welch, the first part of this analysis is satisfied here. On May 20, 1999, Douglas Glover, a Supervisory Immigration Inspector, and John H. O'Brien, a Port Director, issued a Determination of Inadmissibility and Order of Removal Under Section 235(b)(1) of the Act. Plaintiffs' Exhibit 8; Plaintiff's Concise Statement of Material Facts, ¶ 9. The regulation pursuant to which Wong was detained ( 8 CFR § 235.3(b)(2)(iii)) is couched in mandatory language, requiring the detention of aliens who have been ordered removed.
This leaves only the question of whether the officer exercised due care in following the dictates of the statute or regulation. As in Welch, the gravamen of Wong's false imprisonment claim and the focus of the pending motions is the alleged illegality of the decision to detain her in the first instance. Wong makes several arguments as to why the regulation should not have been applied to her, including that she was not an "arriving" alien (and therefore 8 USC § 1225(b)(1)(A)(i) did not apply to her), that she was in possession of a valid, unexpired B-2 visitor visa (and therefore had a valid entry document and was not inadmissible under 8 USC § 1182(a)(7)), and that by the time she was detained, she had filed an I-485 petition seeking adjustment to permanent resident status (and therefore was no longer an applicant for admission under 8 USC § 1225, but was instead an applicant for adjustment of status under 8 USC § 1255).
However, even assuming the validity of some of these arguments, her false imprisonment claim cannot be salvaged. The core of that claim and these arguments is that no expedited removal order should have been entered against Wong. However, this court lacks jurisdiction to entertain such an argument. 8 USC § 1252(a)(2)(A)(i). The fact that an expedited removal order was issued against Wong, combined with a regulation which mandates detention upon issuance of such an order (even if invalid), results in Wong being unable to successfully bring a claim for false imprisonment in this court.
Defendants dispute each of these arguments on the basis that Wong had abandoned her previous applications for adjustment of status by departing without advance parole and could not enter the country on a nonimmigrant visa in order to apply for an adjustment of status. However, resolution of this dispute is unnecessary because of the jurisdictional inability of this court to hear challenges to expedited removal orders and the corresponding regulation mandating detention when such orders issue.
However, some of Wong's allegations go beyond the mere fact of her detention and instead implicate the manner in which she was detained. In Welch, the court emphasized that "[w]hen a statute requires an official to take a particular action, the manner in which the act is undertaken may nevertheless be improper and thus performed without due care." Welch, 409 F3d at 653 (emphasis added). In such a case, the second prong of the due care exception analysis is not met, and the exception to a waiver of sovereign immunity does not apply.
Wong alleges that six weeks after revoking her parole status and three weeks after issuing the expedited removal order, and fully aware of — but deliberately ignoring — her adjustment of status application, defendants induced her into coming to the INS offices by sending her a letter requesting her to appear to pick up her Employment Authorization Card. Fourth Amended Complaint, ¶¶ 12-16. When she did so, Wong was summarily given a letter denying her application for adjustment of status which misrepresented her appeal rights. She was then arrested, handcuffed, and placed in detention. Id., ¶ 17. Wong alleges that the INS's "bait and switch" letter and misrepresentations effectively cut off her ability to request review or appeal of the denial of her adjustment of status application. Id., ¶¶ 17, 19-21. The focus of the false imprisonment claim and the present motions is on the legality of the detention itself. However, these allegations appear to target conduct apart from the bare fact of the detention and instead strike at the denial of other legally protected interests by means of INS trickery.
Some of these allegations may be encompassed in Wong's negligence claim under the FTCA. However, the allegations also appear to be directed at conduct which may form the basis for torts other than negligence or false imprisonment. This court expresses no opinion on the nature or availability of any such tort, except to note that such allegations appear to fall outside the proscriptive boundaries of the due care exception to the FTCA.
Accordingly, this court concludes that the United States has not waived sovereign immunity for Wong's FTCA claim for false imprisonment. As a result, this court lacks subject matter jurisdiction over that particular tort claim. Because discovery has not closed and this court is not privy to the details of what discovery has revealed thus far, this court expresses no opinion as to what possible tort claims may or may not be supported by Wong's allegations about the manner in which the expedited removal order was executed. Instead, the door should be left open to Wong to replead and adequately frame any such claims in addition to her remaining FTCA claim for negligence.
RECOMMENDATION
For the reasons set forth above, plaintiff Kwai Fun Wong's Motion for Partial Summary Judgment Against the United States (docket #192) should be DENIED and the United States' Cross-Motion for Partial Summary Judgment on Plaintiff Kwai Fun Wong's False Imprisonment Claim (docket #206) should be GRANTED WITHOUT PREJUDICE.
Accordingly, the United States should be granted summary judgment against the portion of the Fifth Claim for Relief by Wong alleging a violation of the FTCA based on the tort of false imprisonment. However, Wong should be granted leave to replead her FTCA claim to the extent she can allege a viable tort claim outside the due care exception to the FTCA concerning the manner in which she was detained when defendants executed the expedited removal order.
SCHEDULING ORDER
Objections to this Findings and Recommendation, if any, are due March 6, 2006. If no objections are filed, then the Findings and Recommendation will be referred to a district court judge and go under advisement on that date.
If objections are filed, then the response is due within 10 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will be referred to a district court judge and go under advisement.