The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER DENYING DEFENDANT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
This action against the United States was brought pursuant to the Federal Tort Claims Act ("FTCA"). Plaintiff Francisco Cortez, a law enforcement officer employed by the California Department of Justice, Bureau of Narcotics Enforcement, was allegedly unreasonably detained, arrested and subjected to excessive force by agents of the United States Department of Homeland Security, United States Customs and Border Protection ("Border Patrol Agents" or "Agents"). Defendant filed a motion to dismiss for lack of subject matter jurisdiction arguing that it is immune from suit pursuant to the discretionary function exception and, alternatively, a motion for summary judgment on the merits, arguing that the Border Patrol Agents' acts were justified. Plaintiff opposed the motions and Defendant replied. For the reasons which follow, Defendant's motions are DENIED.
According to the allegations in the complaint, Plaintiff was returning from his duty shift in El Centro, California and was driving to San Diego, California shortly after midnight on September 26, 2009. He sped past a marked U.S. Border Patrol vehicle on Interstate 8. The vehicle followed him, but did not take any other action and eventually backed away. Border Patrol Agent Beata Kobylecka, who was inside the Border Patrol vehicle, radioed ahead to the Pine Valley Border Patrol Checkpoint because she knew that Plaintiff would pass it shortly.
Plaintiff was stopped at the Pine Valley checkpoint. Border Patrol Agent David C. Fulton asked Plaintiff about his citizenship, where he was going, and why. Plaintiff responded to the questions, but when he asked for his driver's license, he asked why it was requested. Agent Fulton then ordered Plaintiff to go to secondary inspection. Plaintiff orally identified himself as a law enforcement officer and explained that his car was an unmarked official vehicle. Agent Fulton did not ask to see Plaintiff's credentials but again ordered him to secondary inspection.
At secondary inspection, Plaintiff was aggressively approached by Border Patrol Agent Benjamin W. Metz. Plaintiff again identified himself as a law enforcement officer and explained he thought he had been ordered to secondary inspection only because he questioned the reason to see his driver's license. Agent Metz told Plaintiff to "shut up," pointed out that Plaintiff was at "his check point," and asked Plaintiff for consent to search the trunk of his car. Plaintiff again stated that he was a law enforcement officer and that his car was an unmarked official vehicle. He declined to consent.
At that time, Border Patrol Agents Kobylecka, Fulton, and Patrick J. Kennedy also arrived to the secondary inspection area. Plaintiff complained to all of them about the rude and unprofessional treatment he had received. When Plaintiff asked why his detention was prolonged by secondary inspection, Agent Metz informed him he was being detained because of his attitude, and because he was acting suspiciously and giving elusive answers. Agent Kobylecka said that she had observed him drive over 100 m.p.h. Plaintiff questioned the veracity of the Agents' statements and legality of their actions. An argument ensued about Plaintiff being off duty and on the Agents' "turf."
Agent Metz then ordered Plaintiff out of his car in order to search it. Plaintiff again declined to consent, and Agent Metz removed him from the car. Plaintiff, who had his duty weapon on his belt, became afraid that the situation would escalate to the use of deadly force when the Agents observe his gun. He therefore informed the Agents that he was a law enforcement officer and that he was armed. Agent Metz pulled Plaintiff out of the car, placed Plaintiff's hands on his head and kicked his ankles apart. When the Agents saw that Plaintiff was armed, they assumed a bladed stance in preparation of drawing their weapons. Agent Kennedy removed Plaintiff's gun, and the Agents then relaxed their bladed stance. When Agent Metz moved Plaintiff's hands behind him as if to handcuff him, Plaintiff asked why he was being arrested. Agent Metz responded that Plaintiff was at a Border Patrol checkpoint, and that Plaintiff was not in charge. When Plaintiff told Agent Metz that in his law enforcement experience, handcuffing him would constitute an arrest rather than a detention, Agent Metz released Plaintiff's hands.
Plaintiff was searched and ordered to sit in a chair outside while a canine unit inspected his car. His request to stand was met with the threat of physical force from Agent Metz and Kennedy. Plaintiff also was not allowed to call his supervisor during the search. The search resulted in no contraband. Plaintiff then asked for his gun so that he could leave, but was told he could not leave until a Border Patrol supervisor arrived.
Subsequently, Supervisory Border Patrol Officer George Prat reviewed Plaintiff's badge and credentials. He apologized to Plaintiff for his detention and the manner in which it was carried out, and Plaintiff was released. His detention lasted approximately 45 minutes.
Plaintiff filed a complaint against the United States under the FTCA alleging state law claims for false imprisonment, assault and battery and negligence. Defendant argues that the court lacks subject matter jurisdiction over Plaintiff's claims, or in the alternative, that summary judgment should be entered in Defendant's favor.
The federal court is one of limited jurisdiction. See Gould v. Mutual Life Ins. Co. of N.Y., 790 F.2d 769, 774 (9th Cir. 1986). It possesses only that power authorized by the Constitution or a statute. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). A federal court must satisfy itself of its jurisdiction over the subject matter before proceeding to the merits of the case. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577, 583 (1999). Accordingly, the court first considers the jurisdictional issue.
The United States, as a sovereign entity, is immune from suit unless it has consented to be sued by waiving its sovereign immunity. United States v. Mitchell, 463 U.S. 206, 212 (1983). The waiver of sovereign immunity under the FTCA is strictly construed. Honda v. Clark, 386 U.S. 484, 501 (1967); United States v. Sherwood, 312 U.S. 584, 587 (1941). The terms of the waiver determine the scope of the court's jurisdiction to hear the case. Sherwood, 312 U.S. at 586-87. The FTCA waives sovereign immunity for claims based on negligent or wrongful acts of federal government employees where a claim would exist under state law, if the government were a private party. 28 U.S.C. §§ 1346(b), 2671-80. The FTCA includes a number of exceptions to the waiver of sovereign immunity, including the discretionary function exception. Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008). If, as Defendant argues, the discretionary exception applies here, the United States has not waived sovereign immunity, and the court lacks subject matter jurisdiction over the claims. See Kelly v. United States, 241 F.3d 755, 760 (9th Cir. 2001).
Defendant moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), which provides for dismissal if the court lacks subject matter jurisdiction. "Rule 12(b)(1) jurisdictional attacks can be either facial or factual." White v. Lee, 227 F.3d 1214, 1242 th Cir. 2000). Because Defendant bases its motion on affidavits and documents outside the complaint, the motion is construed as a factual rather than a facial attack.
Generally, on a 12(b)(1) motion, the court may consider "evidence regarding jurisdiction and . . . rule on that issue prior to trial, resolving factual disputes where necessary." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983); see also Roberts v. Carrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); Autery v. United States, 424 F.3d 944, 956 (9th Cir. 2005). In such cases, the court "may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment [and] need not presume the truthfulness of the plaintiff's allegations." Safe Air for Everyone, 373 F.3d 1035, 1039 (9th Cir. 2004) (citations omitted).
However, where "the jurisdictional issue and substantive claims are so intertwined that resolution of the jurisdictional question is dependent on factual issues going to the merits," the court should either "employ the standard applicable to the motion for summary judgment," Autery, 424 F.3d at 956, or "assume the truth of the allegations in a complaint unless controverted by undisputed facts in the record," Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (internal quotation marks, brackets, ellipsis and citations omitted). In cases under the FTCA, merits are often closely intertwined with jurisdiction. Gould Elec., Inc. v. United States, 220 F.3d 169, 178 (3rd Cir. 2000); see also Autery, 424 F.3d at 956; Safe Air for Everyone, 373 F.3d at 1039 (intertwined where statute provides the basis for both subject matter jurisdiction and plaintiff's substantive claim).
In the present case, the discretionary function exception and the merits of Plaintiff's claims are intertwined. Some of the facts of Plaintiff's case are relevant to both inquiries and are disputed. In cases such as this, where the court employs the summary judgment standard, "[t]he court must not weigh the evidence or determine the truth of the matters asserted but must only determine whether there is a genuine issue for trial." Autery, 424 F.3d at 956 (internal quotation marks and citation omitted).
The discretionary function exception provides immunity from suit for "[a]ny claim . . . 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 U.S.C. § 2680(a); Terbush, 516 F.3d at 1129. The burden of proving that the discretionary function exception applies is on the defendant. Vickers v. Untied States, 228 F.3d 944, 950 (9th Cir. 2000). "The discretionary function exception marks the boundary between Congress' willingness to impose tort liability on the United States and the desire to protect certain decision-making from judicial second-guessing." Conrad v. United States, 447 F.3d 760, 764 (9th Cir. 2006). Its purpose is "to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of action ...