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Border Patrol Agent Anonymous v. United States

United States District Court, S.D. California

April 25, 2017

BORDER PATROL AGENT ANONYMOUS, Plaintiff,
v.
UNITED STATES OF AMERICA, JOHN F. KELLY, ARMANDO GONZALEZ AND DOES 1-25, Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART FEDERAL DEFENDANTS' MOTION TO DISMISS [DOC. 24]

          Thomas J. Whelan United States District Judge

         Pending before the Court is a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) filed by Defendants United States of America and John F. Kelly, Secretary of the Department of Homeland Security (collectively, “Federal Defendants”). Plaintiff opposes.

         The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the reasons that follow, the Court grants in part and denies in part Federal Defendants' motion to dismiss [Doc. 24].

         I. Background

         From approximately December 2012 until December 2014, Plaintiff Agent Anonymous worked as a member of the U.S. Border Patrol's Critical Incident Investigative Team (“CIIT”) in the Chula Vista, California station. (First Amended Compl. (“FAC”) [Doc. 23] ¶ 11.) Defendant Armando Gonzalez, also a U.S. Border Patrol agent, directly supervised Plaintiff during those two years. (Id.)

         Plaintiff alleges that the CIIT office had one women's restroom that doubled as a changing room for female agents, which Plaintiff used every work day. (FAC ¶ 12.) On January 9, 2015, a female Border Patrol agent discovered a video camera in a drain in the restroom. (Id. ¶ 25.) Plaintiff alleges the video camera recorded private and sensitive images of her and several other law enforcement officers using the restroom. (Id. ¶ 18.)

         Shortly after the discovery of the video camera, Gonzalez told two Assistant Chief Border Patrol Agents, who were his supervisors, that he hid the video camera in order to conduct a drug investigation of his female subordinates. (FAC ¶ 25.) Gonzalez's supervisors began an investigation into his conduct. (Id. ¶ 26.) Approximately three weeks later, law enforcement officers searched Gonzalez's home and property to retrieve the video images. (Id.) Gonzalez was eventually arrested, charged, and pled guilty to making false statements to a federal officer in violation of 18 U.S.C. § 1001(a) and for video voyeurism in violation of 18 U.S.C. § 1801. (See Dismissal Order [Doc. 22] 2:24- 26, citing Fed. Defs. RJN [Doc. 21-1] Ex. A.)

         On March 27, 2016, Plaintiff filed this lawsuit alleging a variety of tort claims under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1) & 2671, et seq. (“FTCA”), and employment discrimination under federal and state laws. (See Compl.) On December 14, 2016, this Court denied in part and granted in part Federal Defendants' motion to dismiss the Complaint. (See Dismissal Order.)

         On December 27, 2016, Plaintiff filed the First Amended Complaint. (See FAC.) Federal Defendants now move to dismiss the Fourth cause of action for negligence, the Eighth cause of action for violation of California Civil Code § 52.1, the Ninth cause of action for violation of California Penal Code §§ 632 & 637.2, and Defendant John F. Kelly as secretary of the Department of Homeland Security. (MTD [Doc. 24] 1:9-2:2.) Plaintiff opposes the motion to dismiss the various causes of action, but does not oppose the motion to dismiss Secretary Kelly. (See Opp'n [Doc. 25] 2:2.)

         II. Legal Standard

         A. Motion to Dismiss Under Rule 12(b)(1)

         Rule 12(b)(1) provides a procedural mechanism for a defendant to challenge subject-matter jurisdiction. “A jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic evidence. Where jurisdiction is intertwined with the merits, we must 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).

         A facial attack challenges the complaint on its face. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). But when the moving party raises a factual challenge to jurisdiction, the court may look beyond the complaint and consider extrinsic evidence, and “need not presume the truthfulness of the plaintiff's allegations.” See Id. Once the defendant has presented a factual challenge under Rule 12(b)(1), the burden of proof shifts to the plaintiff to “furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Id.

         B. Motion to Dismiss ...


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