The opinion of the court was delivered by: Vaughn R Walker United States District Chief Judge
Before the court is defendant United States of America's ("the government") motion to dismiss for lack of subject matter jurisdiction pursuant to FRCP 12(b)(1) or, alternatively, for summary judgment pursuant to FRCP 56(c). Doc #37. The original plaintiff in this action, Darrow Kierov Erlin ("Erlin") has since died and his widow Barbara Snow-Erlin ("plaintiff") is pursuing the claim on behalf of Erlin's estate. Plaintiff also moves the court for partial summary judgment on the issue of liability. Doc #39. For the reasons that follow, the court GRANTS the government's motion to dismiss, and DENIES as moot plaintiff's motion for partial summary judgment.
The following facts and procedural history are derived from Erlin's complaint, this court's previous order of August 31, 2000 (Doc #23), and the Ninth Circuit Court of Appeals' opinion, found at Erlin v United States, 364 F3d 1127 (9th Cir 2004). In 1984, Erlin was sentenced to three years of incarceration (six months confined, remaining two-and-a-half years suspended) and five years probation (commencing upon his release) for conspiracy and attempt to manufacture methaqualone in violation of 21 USC §§ 841(a)(1) and 846. In 1988, while out on probation, Erlin was convicted of possession of cocaine with intent to distribute in violation of 21 USC § 841(a)(1). For this violation, Erlin was sentenced to ten years non-parolable imprisonment, followed by eight years of supervised release. Because this second drug crime violated Erlin's 1984 probation conditions, the suspended two-anda-half year sentence was re-imposed, to be served consecutively with the ten-year sentence. The Bureau of Prisons properly aggregated Erlin's three-year and ten-year sentences into a consecutive thirteen year term to calculate his mandatory release date under 18 USC § 4161 (now repealed). Erlin was released on February 17, 1995.
In 1996, Erlin again violated his sentencing conditions (this time, of his supervised release) when he failed to report that he had been arrested for drunk driving in March 1996. The Parole Commission issued a warrant for his arrest on May 9, 1996, and Erlin was arrested on this federal warrant on June 28, 1996. The court that handled Erlin's cocaine crime revoked his supervised release and ordered six months of imprisonment. Additionally, the Parole Commission held a hearing and revoked Erlin's mandatory release parole and ordered him to serve twenty additional months imprisonment consecutively with the court-imposed six months.
Erlin contested the Parole Commission's jurisdiction over him and filed an administrative appeal of its imposition of an additional twenty months. This appeal was unsuccessful. On January 13, 1997, Erlin filed a petition for writ of habeas corpus under 28 USC § 2241 in the United States District Court for the Central District of California. On October 16, 1997, the writ was granted, and on November 17, 1997, Erlin was released. The district court reasoned that although Erlin's sentences had been correctly aggregated initially into a thirteen-year term, the Parole Commission's postconfinement jurisdiction over Erlin should have been based on his three-year sentence only. This was in accordance with the Anti-Drug Abuse Act of 1986, 18 USC § 3583, in which Congress intended to replace "parole" with a system of "supervised release" for most drug crimes, including the kind that Erlin had committed when he received his ten-year sentence. Hence, the Parole Commission lacked statutory authority over Erlin when it imposed the additional twenty months.
On November 1, 1998, Erlin filed a claim with the appropriate federal agency (the Federal Bureau of Prisons) as required procedurally by the Federal Tort Claims Act (FTCA), see 28 USC § 2675. More than six months passed without disposition. On August 31, 1999, Erlin filed the instant suit, alleging personal injury from the "negligent incarceration of plaintiff" by agents of the government. Doc #1, ¶ 1. Erlin claims that the government negligently calculated his parole period, causing him to be taken into custody on an invalid parole warrant and serve 311 days in prison after he should have been released. On August 31, 2000, the court dismissed Erlin's suit, holding that the two-year statute of limitations period on FTCA suits had expired because Erlin's cause of action had accrued on May 9, 1996, when the Parole Commission issued the warrant based on the miscalculated parole expiration. Doc #23.
Plaintiff appealed, and on April 19, 2004, the United States Court of Appeals for the Ninth Circuit reversed, holding that Erlin's cause of action for negligent miscalculation of his release date did not accrue until he succeeded in challenging his continued imprisonment through his petition for writ of habeas corpus - which was granted on October 16, 1997. Erlin, 364 F3d at 1133-34. Because Erlin filed his FTCA claim within two years of October 16, 1997, the statute of limitations did not bar it. Id.
Currently before the court is the government's motion to dismiss Erlin's cause of action under 28 USC § 2680(h). Doc #37. As previously noted, this action is being pursued by decedent Erlin's estate, which also moves the court for partial summary judgment on the issue of liability. Doc #39. The government argues that Erlin's claim of negligence is a "disguised claim of false imprisonment," which is specifically excepted under the FTCA and thus the court lacks subject matter jurisdiction over the claim. The government also argues that Erlin's cause of action should be dismissed under 28 USC § 2680(a). Alternatively, the government moves for summary judgment.
Federal courts have limited subject matter jurisdiction and, unless jurisdiction is authorized by the Constitution or a statute, a federal court is presumed to lack jurisdiction. Kokkonen v Guardian Ins Co of America, 511 US 375, 377 (1994); National Treasury Employees Union v Fed Labor Relation Authority, 112 F3d 402, 404 (9th Cir 1997). The burden of establishing otherwise rests on the party asserting jurisdiction. Kokkonen, 511 US at 377.
Sovereign immunity protects the government from suit unless Congress specifically abrogates that immunity by statute. See e g, Finn v United States, 123 US 227, 233 (1887); United States v Shaw, 309 US 495, 504 (1940). The FTCA waived the government's sovereign immunity for injuries caused by government employees. Section 1346(b) reads in pertinent part:
[The] district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages * * * for * * * personal 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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."
28 USC § 1346(b). The FTCA is not, however, without exceptions. The United States retains its immunity from suit for certain enumerated intentional ...