Liranzo v. United States , No. 11-61 (2d Cir. 2012)
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VLiranzo was born in 1955 in the Dominican Republic. He entered the U.S. as a lawful permanent resident in 1965; in 1972 his mother became a naturalized citizen and he obtained derivative citizenship, 8 U.S.C. 1432(a)(3) Liranzo did not know he had become a citizen and continued to renew his "green card" through 2006.In 2006 Liranzo was released from incarceration in New York for possession of a controlled substance. Before his release, U.S. Immigration and Customs Enforcement erroneously identified him as a permanent resident alien, subject to removal. He was transported to a detention center in Louisiana pending removal. During removal proceedings, it was discovered that Liranzo is a U.S. citizen, and he was released. He filed suit under the Federal Tort Claims Act, alleging that federal immigration officials had falsely arrested and imprisoned him. Following two years of discovery, the district court dismissed for lack of subject matter jurisdiction because there was no private analogue to the immigration detention suffered by plaintiff. The Second Circuit affirmed dismissal of a Fourth Amendment claim, but held that the court had jurisdiction over the FTCA claim, because there is a private analogue: false imprisonment.
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11-61 Liranzo v. United States 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2011 4 (Argued: January 30, 2012 Decided: August 9, 2012) 5 Docket No. 11-61 6 ------------------------------------- 7 VITERBO LIRANZO, AKA VITERBO IGNACIO LIRANZO DICENT, 8 Plaintiff-Appellant, 9 - v - 10 UNITED STATES OF AMERICA, 11 Defendant-Appellee. 12 ------------------------------------- 13 14 15 Before: SACK, RAGGI, and CHIN, Circuit Judges. 16 States District Court for the Eastern District of New York 17 (Sandra J. Feuerstein, Judge) dismissing for lack of subject 18 matter jurisdiction the plaintiff's claims relating to his 19 mistaken detention as a removable resident alien. 20 court concluded that subject matter jurisdiction was lacking over 21 the plaintiff's Federal Tort Claims Act claims because there was 22 no private analogue to the immigration detention suffered by the 23 plaintiff, as required to find a waiver of the United States' 24 sovereign immunity under the Act. Appeal by the plaintiff from a judgment of the United The district Because we conclude that there 1 is such an analogue, we vacate the judgment of the district court 2 in part and remand for further proceedings. 3 district court's judgment insofar as it dismissed the plaintiff's 4 Fourth Amendment claim, which he does not challenge on appeal. 5 Affirmed in part, reversed in part, and remanded. 6 7 LAWRENCE K. KATZ, Katz & Kreinces LLP, Mineola, NY, for Plaintiff-Appellant. 8 9 10 11 12 13 14 We affirm the JAMES H. KNAPP (Margaret M. Kolbe, Varuni Nelson, on the brief), Assistant United States Attorneys, of counsel, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Defendant-Appellee. SACK, Circuit Judge: 15 In March 2006, plaintiff Viterbo Liranzo, a United 16 States citizen, completed a term of incarceration in New York 17 State prison for felony possession of a controlled substance. 18 Before his release, United States Immigration and Customs 19 Enforcement ("ICE") erroneously identified him as a permanent 20 resident alien who had been convicted of a felony, which rendered 21 him subject to removal.1 He was released to the custody of ICE 1 In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 110 Stat. 3009-546. . . . . . . . Before IIRIRA's passage, United States immigration law established "two types of proceedings in which aliens can be denied the hospitality of the United States: deportation hearings and exclusion hearings." Exclusion hearings were held for certain aliens seeking 2 1 and transported to a detention center in Louisiana pending 2 removal. During removal proceedings in Louisiana, it was 3 discovered that Liranzo is a U.S. citizen, and he was therefore 4 released. 5 Thereafter, Liranzo brought the instant complaint in 6 the United States District Court for the Eastern District of New 7 York against the United States under the Federal Tort Claims Act 8 ("FTCA" or the "Act") alleging, inter alia, that federal 9 immigration officials had falsely arrested and imprisoned him. 10 Following some two years of discovery, the matter was set for 11 trial. 12 Feuerstein, Judge) granted the government's motion to dismiss the 13 case for lack of subject matter jurisdiction because, the court 14 concluded, there was no private analogue to the immigration 15 detention suffered by plaintiff, as required for the Act to have But before trial began, the district court (Sandra J. entry to the United States, and deportation hearings were held for certain aliens who had already entered this country. . . . . . . . In IIRIRA, Congress abolished the distinction between exclusion and deportation procedures and created a uniform proceeding known as "removal." See 8 U.S.C. §§ 1229, 1229a. Vartelas v. Holder, 132 S. Ct. 1479, 1483-84 (2012) (citations omitted). In this opinion we therefore use the term "removal" instead of "deportation." We have not, however, changed the term "deportation" in quotations of the district court or of either party. 3 1 worked a waiver of the United States' sovereign immunity from 2 suit. 3 Inasmuch as we conclude that there is such an analogue, 4 we reverse and remand for further proceedings. We affirm the 5 district court's judgment insofar as it dismissed the plaintiff's 6 Fourth Amendment claim, which he does not challenge on appeal. BACKGROUND2 7 8 Liranzo's Citizenship 9 Plaintiff Viterbo Liranzo was born on May 10, 1955, in 10 the Dominican Republic. He entered the United States as a lawful 11 permanent resident in 1965 when he was ten years old. 12 February 24, 1972, pursuant to a Dominican divorce decree, the 13 plaintiff's mother, Augustina Dicent, was awarded custody of 14 Liranzo. 15 his mother became a naturalized U.S. citizen. 16 lawful permanent resident in his mother's custody when she was 17 naturalized, and he was younger than eighteen years old at the 18 time, Liranzo obtained derivative citizenship on that date under 19 the immigration laws then in force. 20 Nationality Act ("INA") § 321(a)(3), 8 U.S.C. § 1432(a)(3) On On October 6, 1972, when Liranzo was sixteen years old, 2 Because he was a See Immigration and The material facts relevant to the issue on appeal are not in dispute. The facts are drawn from the record in the district court, the parties' representations before this Court, and the parties' pre-trial statement of stipulated facts. See Am. Proposed Pre-Trial Order at 1-3, Liranzo v. United States, No. 08 Civ 2940 (SJF)(ARL) (E.D.N.Y. July 8, 2010), ECF No. 31. 4 1 (repealed 2000) (providing for derivative citizenship upon, inter 2 alia, the "naturalization of the parent having legal custody of 3 the child when there has been a legal separation of the 4 parents"). 5 Derivative citizenship under section 321 of the INA was 6 "automatic; that is, when certain conditions exist[ed], a child 7 bec[ame] a U.S. citizen even though neither parent, nor the 8 child, ha[d] requested it." Lewis v. Gonzales, 481 F.3d 125, 131 9 (2d Cir. 2007) (per curiam). Nonetheless, under that regime, the 10 government did not issue a certificate of naturalization to 11 children who obtained derivative citizenship until such a 12 certificate was sought by the child or a parent.3 13 320.3. 14 become a citizen, he continued to renew his "resident alien card" 15 (or "green card") until the mid-1990s. 16 was effective through June 10, 2006. 17 renewals, at the time of the events in question, federal 18 immigration records erroneously listed Liranzo as a lawful 19 permanent resident rather than as a citizen. See 8 C.F.R. § Thus, apparently because Liranzo did not know he had Liranzo's last green card As a result of the 20 3 After the events in question, on May 15, 2007, Liranzo obtained a certificate of citizenship. The government does not dispute that Liranzo obtained derivative citizenship on October 6, 1972. 5 1 2 3 4 Liranzo's New York State Conviction and Subsequent Immigration Detention In approximately September 2005, Liranzo was convicted 5 of criminal sale of a controlled substance in the fourth degree 6 in violation of New York Penal Law section 220.34 for selling 7 cocaine. 8 Center ("NCCC") in East Meadow, New York. 9 incarceration was scheduled to end on or about March 17, 2006. 10 He was incarcerated at the Nassau County Correctional His term of While Liranzo was serving his sentence, ICE agents 11 identified him as a resident alien convicted of a drug felony 12 through ICE's Criminal Alien Program.4 13 detainer to NCCC officials requesting that they release Liranzo 14 only into ICE's custody so that he could be removed from the 15 United States. 16 nature and purpose of immigration detainers). 17 detainer, Liranzo was held at the NCCC for approximately seven 18 days beyond his projected release date. ICE issued an immigration See generally 8 C.F.R. § 287.7(a) (describing the 4 Because of the Pursuant to the Criminal Alien Program, ICE attempts to identify removable "aliens who are incarcerated within federal, state and local prisons and jails" so that it can "process[] the alien expeditiously and secur[e] a final order of removal for an incarcerated alien[, ideally] before the alien is released to ICE custody." Criminal Alien Program, ICE, http://www.ice.gov/criminal-alien-program/ (last visited July 18, 2012). By identifying removable incarcerated aliens before their release from prison, ICE endeavors to "decrease[] or eliminate[] the time spent in ICE custody [prior to the alien's removal] and reduce[] the overall cost to the federal government." Id. 6 1 According to Liranzo, he was interviewed by an ICE 2 representative at the prison. 3 ICE representative that he, Liranzo, was a United States Citizen. 4 Liranzo also alleges that his sister spoke to another ICE 5 representative and provided the representative with Liranzo's 6 mother's naturalization papers. 7 Liranzo asserts that he told the On or about March 24, 2006, ICE took Liranzo into 8 custody. ICE also served him with a Notice to Appear for removal 9 proceedings, charging him as a removable alien who had committed 10 an aggravated felony. 11 facility in Manhattan for some 23 hours, then taken to a facility 12 in Freehold, New Jersey, where he was held for another seven 13 days. 14 Center at Oakdale, Louisiana. 15 He was first held in an ICE detention Thereafter, he was transported to the Federal Detention Liranzo's removal proceedings, during which he was 16 represented by counsel, began in Oakdale. 17 proceedings were adjourned to allow Liranzo's attorney to gather 18 documents for the purpose of substantiating Liranzo's claim to 19 citizenship. 20 motion to terminate the proceedings supported by Liranzo's birth 21 certificate and his mother's naturalization certificate and 22 divorce decree. 23 24 On May 3, 2006, the On or about May 21, 2006, his attorney filed a Thereafter, government officials investigated the validity of Liranzo's mother's divorce decree and her award of 7 1 custody of Liranzo to determine whether he would have met the 2 applicable requirements for derivative citizenship. 3 were determined in Liranzo's favor on or about June 21, 2006. 4 On June 30, 2006, ICE released Liranzo. These issues He was taken 5 to a bus terminal in Louisiana, where he arranged for his own 6 transportation back to New York City. 7 removal proceedings were formally terminated on or about July 20, 8 2006. With ICE's consent, District Court Proceedings 9 10 After exhausting his administrative remedies by filing 11 a claim with the Department of Homeland Security, Liranzo filed 12 the instant complaint in the United States District Court for the 13 Eastern District of New York against the United States on July 14 18, 2008. 15 arrest and imprisonment" and other torts allegedly committed by 16 government officials in connection with his immigration 17 detention. 18 complaint, elliptically asserting as one of its defenses that 19 Liranzo's claims were "subject to, and limited by," the FTCA. 20 Am. Answer at 4, Liranzo v. United States, No. 08 Civ. 2940 21 (SJF)(ARL) (E.D.N.Y. Feb. 6, 2009), ECF No. 9. 22 years of discovery, a bench trial was scheduled to begin on He sought five million dollars in damages for "false On February 6, 2009, the United States answered the 8 After nearly two 1 December 13, 2010.5 2 motions for summary judgment were made by either party. 3 No motion to dismiss was made, and no Federal Rule of Civil Procedure 12(h)(3) provides that 4 "[i]f the court determines at any time that it lacks 5 subject-matter jurisdiction, the court must dismiss the action." 6 FED. R. CIV. P. 12(h)(3); see also Weinstein v. Iran, 609 F.3d 43, 7 47 (2d Cir. 2010) ("[S]ubject matter jurisdiction may be raised 8 at any point . . . ."), cert. denied, --- S. Ct. ----, No. 10- 9 947, 2012 WL 2368690, 2012 U.S. LEXIS 4760 (June 25, 2012). On 10 December 8, 2010, just five days before the scheduled start of 11 the bench trial, the government submitted a letter motion seeking 12 dismissal of the complaint for lack of subject matter 13 jurisdiction. 14 defendant's sovereign immunity from suit based on the limited 15 nature of the FTCA's waiver of that sovereign immunity. 16 v. United States, 89 F.3d 53, 57 (2d Cir. 1996) ("Absent a 17 waiver, sovereign immunity shields the federal Government and its 18 agencies from suit. 19 in nature.") (ellipsis, brackets, and internal quotation marks 20 omitted). 21 analogue exists -- that is, the waiver extends only to claims 22 that could be brought against a "private individual under like The government premised its motion on the See Wake Thus, sovereign immunity is jurisdictional The waiver extends only to claims for which a private 5 With exceptions not relevant here, jury trials are not available to plaintiffs bringing claims against the United States under the FTCA. See 28 U.S.C. § 2402. 9 1 circumstances," 28 U.S.C. § 2674 - permitting the government to 2 be held liable only "under circumstances where the United States, 3 if a private person, would be liable to the claimant in 4 accordance with the law of the place where the act or omission 5 occurred," id. § 1346(b)(1). 6 The government's "chief legal argument" was that there 7 was no private analogue to immigration detentions because 8 "citizenship determinations and immigration matters are federal 9 functions reserved to the federal government, and, . . . because 10 a private individual cannot engage in such determinations, the 11 United States has not waived sovereign immunity on claims related 12 thereto." 13 States, No. 08 Civ. 2940 (SJF)(ARL) (E.D.N.Y. Dec. 14, 2010), ECF 14 No. 38 ("Def.'s Reply Letter Br.") (emphasis in original). 15 Def.'s Reply Letter Br. at 1, Liranzo v. United Although the government acknowledged that the FTCA 16 explicitly permits claims for false imprisonment to be brought 17 against the United States based on the acts of federal law 18 enforcement agents, see 28 U.S.C. § 2680(h) (waiving sovereign 19 immunity for claims against "investigative or law enforcement 20 officers of the United States Government . . . arising . . . out 21 of assault, battery, false imprisonment, false arrest, abuse of 22 process, or malicious prosecution"), the government urged the 23 district court to "look beyond the labels attached by Plaintiff 24 to his claims." Def.'s Letter Br. at 3, Liranzo v. United 10 1 States, No. 08 Civ. 2940 (SJF)(ARL) (E.D.N.Y. Dec. 8, 2010), ECF 2 No. 35 ("Def.'s Letter Br."). 3 despite the label, Liranzo's claims "arise[] from the ICE agents' 4 alleged negligent/erroneous citizenship determination of 5 Plaintiff and their resultant attempts to apply federal 6 immigration statutes to effectuate his deportation." 7 Further, the government asserts, Liranzo "attempt[ed] to cloth[e] 8 'federal function tort claims' (over which the United States has 9 not waived sovereign immunity) in 'law enforcement intentional 10 tort' garb (over which the United States has waived sovereign 11 immunity)." 12 According to the government, Id. Def.'s Reply Letter Br. at 2. Liranzo responded that "[h]ad a private individual held 13 plaintiff prisoner for 105 days, New York would allow plaintiff 14 to recover." 15 No. 08 Civ. 2940 (SJF)(ARL) (E.D.N.Y. Dec. 9, 2010), ECF No. 36. 16 Therefore, Liranzo argued, a private analogue to the claims 17 asserted in the complaint existed. Pl.'s Letter Br. at 1-2, Liranzo v. United States, 18 By memorandum and order dated December 15, 2010, the 19 district court dismissed the action for lack of subject matter 20 jurisdiction pursuant to Rule 12(h)(3). 21 "[i]mmigration and detention pending deportation are governed 22 exclusively by federal law and therefore have no private 23 analogue." 24 Civ. 2940 (SJF)(ARL) (E.D.N.Y. Dec. 15, 2010), ECF. No. 41 ("Mem. It reasoned that Mem. & Order at 9, Liranzo v. United States, No. 08 11 1 & Order"). 2 v. United States, 671 F.2d 1230 (2d Cir. 1982) ("Caban I"), and 3 Caban v. United States, 728 F.2d 68 (2d Cir. 1984) ("Caban II"), 4 as indicating that for FTCA purposes, there is no private 5 analogue for federal immigration detentions. 6 "[a]s plaintiff's intentional tort claims are based upon the 7 detention of plaintiff pending deportation proceedings and the 8 process the immigration agents used to determine his citizenship 9 status, plaintiff has not established that a comparable cause of 10 action would exist against a private individual pursuant to New 11 York State law." 12 It also read this Court's precedents, including Caban It concluded that, Mem. & Order at 10. Liranzo appealed from the judgment of dismissal. 13 DISCUSSION 14 When reviewing the dismissal of a complaint for lack of 15 subject matter jurisdiction, we review factual findings for clear 16 error and legal conclusions de novo, accepting all material facts 17 alleged in the complaint as true and drawing all reasonable 18 inferences in the plaintiff's favor. 19 Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff'd on other 20 grounds, 130 S. Ct. 2869 (2010). 21 of proving subject matter jurisdiction by a preponderance of the 22 evidence." 23 635, 638 (2d Cir. 2005). 24 under the FTCA "is to be strictly construed in favor of the Morrison v. Nat'l Austl. "The plaintiff bears the burden Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d The United States' waiver of immunity 12 1 government." Long Island Radio Co. v. NLRB, 841 F.2d 474, 477 2 (2d Cir. 1988). 3 I. The FTCA's Private Analogue Requirement 4 "'The United States, as sovereign, is immune from suit 5 save as it consents to be sued . . . , and the terms of its 6 consent to be sued in any court define that court's jurisdiction 7 to entertain the suit.'" 8 535, 538 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 9 586 (1941)) (brackets omitted).6 United States v. Mitchell, 445 U.S. In 1946, Congress enacted the 10 Federal Tort Claims Act, which "constitutes a limited waiver by 11 the United States of its sovereign immunity and allows for a tort 12 suit against the United States under specified circumstances."7 6 The United States' sovereign immunity from suit is ultimately derived from English common law. "While the political theory that the King could do no wrong was repudiated in America, a legal doctrine derived from it that the Crown is immune from any suit to which it has not consented was invoked on behalf of the Republic and applied by our courts as vigorously as it had been on behalf of the Crown." Feres v. United States, 340 U.S. 135, 139 (1950) (footnote omitted). 7 Prior to the passage of the FTCA in 1946, if a private individual was injured by a federal employee, he could only seek relief from the federal government by petitioning Congress to pass a "private bill" compensating him for his injuries. Relief was often sought and sometimes granted through private bills in Congress, the number of which steadily increased as Government activity increased. The volume of these private bills, the inadequacy of congressional machinery for determination of facts, the importunities to which claimants subjected members of Congress, and the capricious results, led to [the passage of 13 1 Hamm v. United States, 483 F.3d 135, 137 (2d Cir. 2007) 2 (quotation marks omitted). 3 federal courts and waives the sovereign immunity of the United 4 States for The FTCA provides jurisdiction in the 5 6 7 8 9 10 11 12 13 14 15 16 17 28 U.S.C. § 1346(b)(1); see also 28 U.S.C. § 2674 ("The United 18 States shall be liable, respecting the provisions of this title 19 relating to tort claims, in the same manner and to the same 20 extent as a private individual under like circumstances."). 21 claims against the United States, for money damages . . . for . . . injury or loss of property, or personal injury or death 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. As originally enacted, the FTCA barred all suits 22 against the government "arising out of . . . false 23 imprisonment[ and] false arrest." 24 But in 1974, Congress enacted amendments to the FTCA principally 28 U.S.C. § 2680(h) (1970). the FTCA in 1946, in which the government] . . . waived immunity and transferred the burden of examining tort claims to the courts. Feres, 340 U.S. at 140; see also Erwin Chemerinsky, FEDERAL JURISDICTION 663 (6th ed. 2012). The FTCA put an end to the "notoriously clumsy" "private bill device." Dalehite v. United States, 346 U.S. 15, 24-25 (1953), abrogation recognized by Rayonier Inc. v. United States, 352 U.S. 315, 319 (1957). 14 1 in response to abuses committed by federal law enforcement 2 officers in connection with "no-knock" drug raids in 3 Collinsville, Illinois, in which officers raided the wrong 4 families' homes. 5 Police People Too? 6 Act's "Private Person" Standard as it Applies to Federal Law 7 Enforcement Activities, 76 BROOK. L. REV. 775, 780-82 (2011). 8 Under the 1974 amendments, the FTCA explicitly waives sovereign 9 immunity "with regard to acts or omissions of investigative or 10 law enforcement officers of the United States,"8 for "any claim 11 arising . . . out of assault, battery, false imprisonment, false 12 arrest, abuse of process, or malicious prosecution."9 13 § 2680(h). 14 See generally Stanton R. Gallegos, Note, Are An Examination of the Federal Tort Claims 28 U.S.C. By waiving sovereign immunity "under circumstances 15 where the United States, if a private person, would be liable to 16 the claimant in accordance with the law of the place where the 17 act or omission occurred," id. § 1346(b)(1), the FTCA directs 18 courts to consult state law to determine whether the government 8 "'[I]nvestigative or law enforcement officer' means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law." 28 U.S.C. § 2680(h). 9 The FTCA's jurisdictional provision, 28 U.S.C. § 1346(b), as well as the FTCA's procedural provisions, which include the private analogue requirement set forth in 28 U.S.C § 2674, "apply" to the 1974 amendments' waiver of sovereign immunity for the enumerated intentional torts. See 28 U.S.C. § 2680(h). 15 1 is liable for the torts of its employees. See FDIC v. Meyer, 510 2 U.S. 471, 478 (1994) ("[The] law of the State [is] the source of 3 substantive liability under the FTCA."); Feres, 340 U.S. at 142 4 ("This provision recognizes and assimilates into federal law the 5 rules of substantive law of the several states . . . ."). 6 FTCA does not waive sovereign immunity for claims based solely on 7 alleged violations of federal law. The Meyer, 510 U.S. at 478. 8 "[T]he Act requires a court to look to the state-law 9 liability of private entities, not to that of public entities, 10 when assessing the Government's liability under the FTCA [even] 11 in the performance of activities which private persons do not 12 perform." 13 (internal quotation marks omitted). 14 immunity for claims against the government based on governmental 15 "action of the type that private persons could not engage in and 16 hence could not be liable for under local law." 17 States, 854 F.2d 622, 626 (2d Cir. 1988) (internal quotation 18 marks omitted). 19 United States v. Olson, 546 U.S. 43, 46 (2005) It does not waive sovereign Chen v. United The path of the case law on the FTCA's private analogue 20 requirement is long, winding, and sparsely marked. We therefore 21 think a rehearsal of the history of that case law may be helpful. 22 A. The Supreme Court's Private Analogue Jurisprudence 23 In Feres, one of the Supreme Court's early FTCA cases, 24 the Court considered the private analogue requirement as applied 16 1 to servicemen injured in active duty "due to negligence of others 2 in the armed forces." 3 cases comprising Feres, one plaintiff was killed in an army 4 barracks fire, one plaintiff had a towel left in his abdomen 5 following surgery performed by an Army doctor, and another 6 plaintiff died following surgery performed by Army surgeons, all 7 allegedly resulting from negligence of Army personnel. 8 136-37. 9 under the FTCA. 10 340 U.S. at 138. In the consolidated Id. at All three (or their respective estates) sought damages Id. In considering whether the FTCA waived the United 11 States' sovereign immunity for the plaintiffs' claims, the Court 12 conceded that "[i]n the usual civilian doctor and patient 13 relationship, there is of course a liability for malpractice. 14 And a landlord would undoubtedly be held liable if an injury 15 occurred to a tenant as the result of a negligently maintained 16 heating plant." 17 analogies are sound only if one "consider[s] relevant only a part 18 of the circumstances and ignore[s] the status of both the wronged 19 and the wrongdoer." 20 by the Government . . . is that created by 'all the 21 circumstances,' not that which a few of the circumstances might 22 create." 23 24 Id. at 142. Id. But the Court reasoned that such Under the FTCA, "the liability assumed Id. The Feres Court concluded that "there [was no] liability 'under like circumstances,' for no private individual 17 1 has power to conscript or mobilize a private army with such 2 authorities over persons as the Government vests in echelons of 3 command." 4 5 6 7 8 9 10 11 12 13 14 15 Id. at 141-42. The relationship between the Government and members of its armed forces is 'distinctively federal in character' . . . . To whatever extent state law may apply to govern the relations between soldiers or others in the armed forces and persons outside them or nonfederal governmental agencies, the scope, nature, legal incidents and consequence of the relation between persons in service and the Government are fundamentally derived from federal sources and governed by federal authority. 16 Id. at 143-44. 17 personnel to the Government has been governed exclusively by 18 federal law," id. at 146, "the Government is not liable under the 19 Federal Tort Claims Act for injuries to servicemen where the 20 injuries arise out of or are in the course of activity incident 21 to service," id. 22 Thus, because "the relationship of military But just five years later, the Court adopted a broader 23 view of the private analogue requirement, albeit in a non- 24 military context. 25 U.S. 61 (1955), the plaintiff's tug boat went aground after the 26 battery in a lighthouse operated by the Coast Guard ran out of 27 power. 28 against the Coast Guard under the FTCA based on the failure of 29 its employees to maintain the lighthouse in working order. 30 at 61-62. Id. at 62. In Indian Towing Co. v. United States, 350 Indian Towing brought a negligence claim The government argued that the private analogue 18 Id. 1 requirement "must be read as excluding liability in the 2 performance of activities which private persons do not 3 perform[,] . . . [i.e.,] 'uniquely governmental functions.'" 4 at 64. 5 government argued that this function was uniquely governmental, 6 and that no private analogue existed. 7 Id. Because only the Coast Guard operated lighthouses, the Id. The Court rejected the government's proposed test for 8 liability on the ground that "all Government activity is 9 inescapably 'uniquely governmental' in that it is performed by 10 the Government." 11 any governmental activity on the 'operational level,' our present 12 concern, which is 'uniquely governmental,' in the sense that its 13 kind has not at one time or another been, or could not 14 conceivably be, privately performed." 15 Id. at 67. Conversely, "it is hard to think of Id. at 68. The Court also observed that the statutory phrase 16 "under like circumstances" does not mean "under the same 17 circumstances." 18 were no private lighthouses in operation at the time did not mean 19 that there was no private analogue. 20 21 22 23 24 25 26 27 28 Id. at 64 (emphases added). The fact that there [I]f the United States were to permit the operation of private lighthouses -- not at all inconceivable -- the Government's basis of differentiation would be gone and the negligence charged in this case would be actionable. Yet there would be no change in the character of the Government's activity[,] . . . and [it is unlikely that Congress would] predicat[e] liability on such a 19 1 2 3 completely fortuitous circumstance -- the presence of identical private activity. Id. at 66-67. 4 The Court concluded that the relevant private analogue 5 at issue was the duty imposed on the private "good Samaritan": 6 "[O]ne who undertakes to warn the public of danger and thereby 7 induces reliance must perform his 'good Samaritan' task in a 8 careful manner." 9 undertake the lighthouse service. Id. at 64-65. "The Coast Guard need not But once it exercised its 10 discretion to operate [the] light . . . and engendered reliance 11 on the guidance afforded by the light, it was obligated to use 12 due care to make certain that the light was kept in good working 13 order . . . ." 14 private analogue, "[i]f the Coast Guard failed in its duty and 15 damage was thereby caused to petitioners, the United States is 16 liable under the Tort Claims Act." 17 Id. at 69. Because of the existence of this Id. Rayonier Inc. v. United States, 352 U.S. 315 (1957) 18 signaled a further narrowing of the Court's view of Feres's 19 reasoning. 20 damaged by the United States Forest Service's negligent failure 21 to control a forest fire. 22 that there was no private analogue because "neither the common 23 law nor the law of [the State of] Washington imposes liability on 24 municipal or other local governments for the negligence of their 25 agents acting in the 'uniquely governmental' capacity of public There, the plaintiffs alleged that their property was Id. at 315-16. 20 The government argued 1 firemen." Id. at 318-19. 2 argument because the relevant consideration is whether state law 3 would impose liability on a "private person" rather than on a 4 "municipal corporation or other public body" for "similar 5 negligence" as allegedly committed by the government in the case 6 at hand. 7 Dalehite v. United States, 346 U.S. 15, 43-44 (1953), which had 8 relied on Feres and the common law "immunity of . . . public 9 bodies for injuries due to fighting fire" to conclude that there Id. at 319. The Court rejected the government's In doing so, the Court disapproved of 10 was no private analogue to the Coast Guard's firefighting 11 efforts, id. at 44. 12 remanded for consideration of whether state law would hold a 13 private person fighting a fire in similar circumstances liable. 14 Id. at 320-21. 15 See Rayonier, 352 U.S. at 319. The Court In United States v. Muniz, 374 U.S. 150 (1963), the 16 Supreme Court continued to constrict the reach of the rationales 17 relied upon in Feres. 18 could be brought under the FTCA for "personal injuries sustained 19 during confinement in a federal prison, by reason of the 20 negligence of a government employee." 21 government argued that Feres defeated a private analogy, because, 22 among other things, "the relationship between the federal 23 prisoner and his custodians" is "uniquely federal in character." 24 Br. for United States, United States v. Muniz, 374 U.S. 150 There, the Court considered whether suit 21 Id. at 150. The 1 (1963), 1963 WL 105602 at *19. A unanimous Court (Justice White 2 not participating) rejected the government's reliance on Feres. 3 The Court reasoned that "[i]n the last analysis, Feres seems best 4 explained by the peculiar and special relationship of the soldier 5 to his superiors, the effects of the maintenance of such suits on 6 discipline, and the extreme results that might obtain if suits 7 under the Tort Claims Act were allowed for negligent orders given 8 or negligent acts committed in the course of military duty." 9 at 162 (quotation marks and ellipsis omitted). Id. It concluded 10 that, in the context of the federal prison system, "an analogous 11 form of liability exists. 12 prisoners to recover from their jailers [and from the States] for 13 negligently caused injuries."10 14 A number of States have allowed Id. at 159-60. Most recently, in a brief unanimous opinion in United 15 States v. Olson, 546 U.S. 43 (2005), the Court reaffirmed the 16 principles recognized in Indian Towing and its progeny. 17 Court vacated a Ninth Circuit decision in which that court (1) 18 had found "no private-sector analogue for mine inspections," the 19 federal activity about which suit had been brought, id. at 45 10 The The Muniz Court's decision to look to the liability of jailors and the States that employ them seems to be a departure, or at least a change in emphasis in a new factual context, from Indian Towing's and Rayonier's admonition to examine the liability of private individuals under state law when deciding if a private analogue exists, rather than the state law liability of governmental entities. See also infra section II.B (discussing potential analogies to law enforcement and citizen's arrests). 22 1 (internal quotation marks omitted), but (2) had concluded that 2 because "unique governmental functions" were at issue and 3 relevant state law imposed liability on "state and municipal 4 entities" under the circumstances, the FTCA waived sovereign 5 immunity, id. (internal quotation marks omitted). 6 Court concluded that under its jurisprudence, whether state law 7 imposed such liability on state and municipal entities was 8 irrelevant to the sovereign immunity waiver, id. at 45-46, and 9 that there was indeed a relevant private analogy to the liability The Supreme 10 of "private persons who conduct safety inspections," id. at 47. 11 The Court remanded the case with instructions to "the lower 12 courts [to] decide . . . in the first instance" "precisely which 13 [State] law doctrine applie[d]." 14 15 B. 16 Id. at 48. This Court's Private Analogue Jurisprudence in Non-immigration Cases This Court has had several occasions on which to 17 consider the FTCA's private analogue requirement. 18 of cases decided in the 1980s, we confronted circumstances we 19 concluded were governed exclusively by federal law, were without 20 private analogue, and with respect to which sovereign immunity 21 had therefore not been waived by the FTCA. 22 In a trilogy In C.P. Chemical Co. v. United States, 810 F.2d 34 (2d 23 Cir. 1987), a producer of formaldehyde-based foam insulation 24 brought suit against the federal government after the Consumer 25 Product Safety Commission announced a ban on the insulation, 23 1 alleging that the Commission was "gross[ly] negligen[t]" in 2 failing to follow proper rulemaking procedures and disseminating 3 false information about the banned insulation. 4 The Court began by reviewing the legislative history of the FTCA, 5 which expressed a clear desire that the "constitutionality of 6 legislation, or the legality of a rule or regulation, should 7 [not] be tested through the medium of a damage suit for tort." 8 Id. at 37 (quoting H.R. REP. NO. 79-1287, at 6 (1945)). 9 reasoned that "quasi-legislative or quasi-adjudicative action by Id. at 35-36. The court 10 an agency of the federal government is action of the type that 11 private persons could not engage in and hence could not be liable 12 for under local law." 13 United States, 721 F.2d 385, 390 (D.C. Cir. 1983)) (quotation 14 marks and brackets omitted). 15 comparable rulemaking activity in private life," we decided that 16 "[t]he Commission's conduct clearly was a quasi-legislative 17 activity for which we find no private counterpart." 18 Id. at 37-38 (quoting Jayvee Brand v. Because there was "simply no Id. at 38. In Chen, a printing company brought FTCA claims against 19 the government based on the General Services Administrations's 20 attempt to suspend and debar the company as a federal contractor. 21 854 F.2d at 623. 22 in alleged negligent and willful violations of federal 23 procurement regulations, specifically, those requiring that a 24 contractor receive notice and a hearing prior to any suspension." Most of the plaintiff's claims were "grounded 24 1 Id. at 626. We concluded that "violation of the government's 2 duties under federal procurement regulations 'is action of the 3 type that private persons could not engage in and hence could not 4 be liable for under local law.'" 5 Brand, 721 F.2d at 390). 6 in Birnbaum v. United States, 588 F.2d 319, 326 (2d Cir. 1978), 7 in which we observed that the "opening and reading of sealed mail 8 by [the Central Intelligence Agency], just as if by [a] private 9 party, violates [the] common-law right of privacy."11 Id. at 626 (quoting Jayvee We contrasted Chen's claims with those Chen, 854 10 F.2d at 626. 11 "wrongful sanctions by private associations against individual 12 members," id., because no such tort liability existed under New 13 York law. 14 We also rejected Chen's proposed private analogue, Id. at 626-27. And in Akutowicz v. United States, 859 F.2d 1122 (2d 15 Cir. 1988), the plaintiff brought claims against the government 16 when the State Department decided that he had relinquished his 17 United States citizenship after obtaining French citizenship. 18 Id. at 1123-25. 19 conduct governed exclusively by federal law, or to conduct of a 20 governmental nature or function, that has no analogous liability We noted that "the FTCA does not extend to 11 Though Birnbuam predicted that the New York Court of Appeals would recognize a common law right of privacy, we subsequently acknowledged that our prophesy had been incorrect, and found a failure to state a claim under the "same fact pattern" in Hurwitz v. United States, 884 F.2d 684, 685 (2d Cir. 1989), cert. denied, 493 U.S. 1056 (1990). 25 1 in the law of torts." Id. at 1125 (quotation marks and citations 2 omitted). 3 upon the government to the same extent, and in the same manner, 4 as a private individual under 'like,' not identical, 5 circumstances," id. at 1125, "the withdrawal of a person's 6 citizenship constitutes a quasi-adjudicative action for which no 7 private analog exists." 8 empowered to certify the loss of American nationality." 9 1125. We decided that although "the FTCA imposes liability Id. at 1126. "[N]o private citizen is Id. at Nor were we willing to "analogize the relationship between 10 the government and its citizens with that between a private 11 association and its individual members," because no "cause of 12 action in tort for alleged misconduct by the association [in 13 improperly expelling one of its members]" existed under state 14 law. 15 quotation marks omitted). 16 17 C. 18 Id. at 1126 (quoting Chen, 854 F.2d at 627) (emphasis and This Court's Treatment of FTCA Claims Based on Immigration Detentions In 1982 and 1984, respectively, we addressed FTCA 19 claims more similar to those at issue on this appeal -- claims 20 based on an allegedly erroneous immigration detention. 21 I and II, the plaintiff was stopped at John F. Kennedy 22 International Airport upon arrival from the Dominican Republic. 23 Caban I, 671 F.2d at 1230. 24 documentation to substantiate his claims of United States 25 citizenship, and his answers to the INS officers' questions In Caban Illiterate, he was unable to provide 26 1 regarding his past and citizenship status raised their suspicion 2 (e.g., he denied knowing his own birthdate). 3 at 70. 4 determined that he was indeed a citizen. 5 claims against the United States for false arrest under the FTCA. 6 Caban II, 728 F.2d INS agents detained him for six days, after which they Id. Caban brought In Caban I, this Court concluded that the FTCA's 7 "discretionary function" exception -- which bars FTCA claims 8 "based upon the exercise or performance or the failure to 9 exercise or perform a discretionary function or duty," 28 U.S.C. 10 § 2680(a) -- did not apply to the INS officers' decision to 11 arrest and detain Caban because the decision did not involve the 12 "weighing of important policy choices to which discretion is 13 essential." 14 court remanded for further proceedings, a bench trial was held, 15 and the district court determined that the complaint should be 16 dismissed because the arrest was privileged under the federal 17 standards applicable to immigration officers, a standard 18 incorporated into New York law through its requirement that a 19 plaintiff suing a private individual for false imprisonment 20 establish that his confinement was "not . . . privileged." 21 at 70-71 (internal quotation marks omitted).12 Caban II, 728 F.2d at 70 (describing Caban I). 12 The Id. See infra section II.B (discussing the circumstances in which an arrest can be privileged under New York law). 27 1 In Caban II, we affirmed the judgment of the district 2 court in favor of the government, after trial on remand from 3 Caban I. 4 'investigative or law enforcement officers' within the meaning of 5 [28 U.S.C. § 2680(h)]," the provisions of which waives sovereign 6 immunity for, inter alia, false arrest and imprisonment claims 7 against federal "investigative or law enforcement officers." 8 F.2d at 72. 9 the central waiver of immunity provision of the FTCA,] to '[t]he Id. at 75. We first noted that "INS agents are 728 We then observed that "the reference in § 1346(b)[, 10 law of the place' means the 'whole law' of the state where the 11 incident took place" -- in that case, the State of New York -- 12 including any federal law that state law incorporated. 13 (brackets and some quotation marks omitted). 14 courts would look to federal principles in determining the 15 standard by which INS officials' detention of a would-be entrant 16 are to be judged." 17 into the United States has substantially less right to avoid 18 detention than does a person already lawfully within the United 19 States," id., "far less than [the] probable cause" that is 20 ordinarily required to detain a person will suffice to render the 21 detention privileged under the New York law of false 22 imprisonment, which incorporates federal standards, id.13 Id. at 73. Id. "New York state Because "a person seeking entry 13 We use the terms "false arrest" and "false imprisonment" interchangeably. Under New York law, "the tort of false arrest is synonymous with that of false imprisonment." Posr v. Doherty, 28 1 We nonetheless recognized that the FTCA "speaks in 2 terms of the liability, under state law, of 'a private person.'" 3 Id. at 73. 4 privileged . . . to act to protect national borders, . . . it is 5 questionable . . . whether New York would extend that privilege 6 to a private person," id., the issue that was before us under 7 section 1346(b). 8 9 While "[a]n authorized government agent would be We reasoned, however, that even if a private person would be held liable under New York State law, the FTCA only 10 provides for liability "in the same manner and to the same extent 11 as a private individual under like circumstances." 12 § 2674. 13 'like circumstances' language in [section] 2674 means that 'the 14 liability assumed by the Government . . . is that created by 'all 15 the circumstances,' not that which a few of the circumstances 16 might create.'" 17 18 19 20 21 22 23 24 25 28 U.S.C. We then cited Feres for the proposition that "[t]he Id. at 73-74 (quoting Feres, 340 U.S. at 142). [I]mmigration officers are accorded a special status by law which requires them to detain persons in situations also outlined by law. These circumstances are far different from those in which a person who is either thought to have committed a crime or thought to be an alien is detained by a private individual. Id. at 74 (citing Feres, 340 U.S. at 141-42). 944 F.2d 91, 96 (2d Cir. 1991); see also infra note 17 (discussing potentially applicable state law). 29 1 We concluded that the "interplay among" the "like 2 circumstances" language in section 2647, "the government's 3 privilege to protect the border, and New York's recognition that 4 a privileged detention does not result in liability for false 5 imprisonment" required that "[t]he liability of the 6 government . . . be assessed in light of the liability New York 7 would impose upon one having a privilege to detain a would-be 8 entrant who did not satisfactorily establish his right to enter," 9 that is, in "conformance with the federal standards regarding 10 treatment of applicants for entry to the United States." 11 74 (quotation marks omitted). 12 court's ruling that under New York law, the government employees 13 who detained Caban had a "privilege to detain" him under the 14 circumstances at bar, and therefore their employer, the United 15 States, would not be liable for false imprisonment for the 16 privileged behavior. 17 Id. at We therefore affirmed the district Id. at 74-75. Judge Cardamone, concurring in the judgment, questioned 18 the majority's reasoning. Although he agreed that federal 19 standards applicable to immigration officers should be used to 20 assess liability, he noted the potential for confusion created by 21 the majority's citation to the "like circumstances" language of 22 section 2674 and Feres. 23 the judgment). 24 on Feres was "ill-advised" because "[t]he Feres doctrine plainly Id. at 76 (Cardamone, J., concurring in Judge Cardamone thought the majority's reliance 30 1 does not deal with substantive tort law principles" such as were 2 at issue in Caban II, "but is concerned solely with . . . [the] 3 threshold jurisdictional question" of whether a private analogue 4 exists. 5 6 Id. II. Analysis A. The Meaning of Caban II 7 Before the district court, Liranzo relied on Caban II 8 for the proposition that the United States waives its sovereign 9 immunity for FTCA claims arising from immigration detentions. 10 The district court disagreed, deciding that "Caban II does not 11 require an examination of every challenged deportation proceeding 12 to determine whether a plaintiffs claim has a private analogue. 13 Where, as here, the conduct challenged by the plaintiff is 14 exclusively governed by federal law, the FTCA does not waive 15 sovereign immunity." 16 relied on Caban II's statement that immigration officers are 17 "accorded a special status" "unlike any in which a private 18 individual could be involved," id. at 9 (quoting Caban II, 728 19 F.2d at 74; internal quotation marks omitted), to find the 20 absence of a private analogue and subject matter jurisdiction 21 over Liranzo's claims. Mem. & Order at 10. The district court 22 The reasoning in Caban II is complex. 23 result, courts have diverged in their reading of the case. 24 such as the district court in this case, view Caban II as 31 Perhaps as a Some, 1 authority for the proposition that the United States has not 2 waived sovereign immunity for immigration detention claims 3 because there is no relevant private analogue.14 4 from the Caban II majority's citation to Feres, a case 5 considering only whether a private analogue existed, as authority 6 for judging federal immigration officers' conduct under a federal 7 rather than state standard. 8 correctly -- read Caban II as a case about the substantive 9 standard by which immigration officers' acts are to be judged -- 10 This may arise But other courts have -- in our view not about the presence or absence of a private analogue.15 The 14 See also Doe v. United States, 58 F.3d 494, 502 (9th Cir. 1995) (construing Caban II as holding that "immigration officers have materially different duties than do private citizens, and therefore no FTCA liability exists, even if a private person could be liable for wrongfully detaining plaintiff"); Woodbridge Plaza v. Bank of Irvine, 815 F.2d 538, 543 (9th Cir. 1987) (same), superseded by statute on other grounds as stated in Senior Unsecured Creditors' Comm. of First RepublicBank Corp. v. FDIC, 749 F.Supp. 758, 773 (N.D. Tex. 1990); Lippman v. City of Miami, 622 F. Supp. 2d 1337, 1341 (S.D. Fla. 2008) (same); Schalliol v. Fare, 206 F. Supp. 2d 689, 695 n.24 (E.D. Pa. 2002) (same). 15 See Rhoden v. United States, 55 F.3d 428, 431 (9th Cir. 1995) (per curiam); Munyua v. United States, No. 03 Civ. 04538 (EDL), 2005 WL 43960, at *4, 2005 U.S. Dist. LEXIS 11499, at *12*13 (N.D. Cal. Jan. 10, 2005) ("[T]he Caban case does not support the sweeping conclusion that there is no jurisdiction under the FTCA here . . . ."); Nguyen v. United States, No. 00 Civ. 528-R, 2001 WL 637573, at *8-*9, 2001 U.S. Dist. LEXIS 7512, at *26-*28 (N.D. Tex. June 5, 2001) ("Caban indicates that a lawful detention can become unlawful at the point at which the INS's decision to continue the detention is no longer reasonable."), aff'd on other grounds, 65 F. App'x 509 (5th Cir. 2003); Tovar v. United States, No. 98 Civ. 1682, 2000 WL 425170, at *7, 2000 U.S. Dist. LEXIS 5044, at *23-*24 (N.D. Tex. Apr. 18, 2000) (Caban II applied a federal standard to the merits of Caban's claim), aff'd, 244 F.3d 135 (5th Cir. 2000) (unpublished table decision); 32 1 Caban II court never even considered the FTCA's private analogue 2 requirement, as that issue was simply not before it on appeal. 3 If indeed the Caban II court had found the absence of a 4 private analogue to immigration detentions, its inquiry would 5 have been at an end because there would have been no waiver of 6 sovereign immunity, and thus no subject matter jurisdiction over 7 Caban's FTCA claims. 8 substantive standards under which the immigration officials' 9 conduct was to be judged -- an inquiry that would only be Instead, the Caban II court considered the 10 necessary, at least in a case in Caban II's posture, if a private 11 analogue existed. 12 (finding that no private analogue existed, and refraining from See, e.g., Feres, 340 U.S. at 143-44, 146 Garza v. United States, 881 F. Supp. 1103, 1106 (S.D. Tex. 1995) (describing Caban II as concluding that the "INS officer's detention of [Caban, who was] entering country[, was] privileged under New York law"); Gallegos v. Haggerty, 689 F. Supp. 93, 105 (N.D.N.Y. 1988) (denying the government's motion for summary judgment on the merits of plaintiffs' FTCA claim); Saldana v. United States, No. L-83-46, 1985 WL 5997, at *4 n.2, 1985 U.S. Dist. LEXIS 14091, at *14 n.2 (S.D. Tex. Nov. 7, 1985) ("This Court prefers the conceptual approach in the concurring opinion of Judge Cardamone in Caban [to the question of what standard to apply to the merits of FTCA claims related to immigration detentions] rather than that in the majority opinion of Judge [Kearse], but the result is the same under either approach."). Another judge of the Eastern District of New York has explicitly disagreed with the district court's reading of Caban II here. Nakamura v. United States, No. 10 Civ. 2797 (FB)(RML), 2012 WL 1605055, at *3, 2012 U.S. Dist. LEXIS 64630, at *8 (E.D.N.Y. May 8, 2012) ("Contrary to the outcome of Liranzo and defendant's arguments, Caban II does not stand for the sweeping proposition that the actions of immigration agents in detaining a person never have a private analogue, and that sovereign immunity is never waived in such cases."). 33 1 considering the standard to be applied on the merits); see also 2 id. at 141 (stating that generally, "[j]urisdiction is necessary 3 to deny a claim on its merits as matter of law as much as to 4 adjudge that liability exists"). 5 II as did the district court to indicate that there is no private 6 analogue to immigration detentions. 7 We therefore do not read Caban Moreover, the Caban II Court endorsed the district 8 court's statement in the case before it that "the United States 9 [is] not liable to Caban if the INS agents acted in conformance 10 with the federal standards regarding treatment of applicants for 11 entry to the United States." 12 added; quotation marks omitted). 13 contemplates a consideration of the facts of a particular 14 immigration detention FTCA claim on the merits, i.e., based on 15 the particulars of the "INS agents['] act[ions]."16 Caban II, 728 F.2d at 74 (emphasis 16 That language apparently Id. Although other courts may have also interpreted Caban II as concerning the FTCA's private analogue requirement, the district court's reliance on Caban II to find a lack of subject matter jurisdiction over an FTCA claim based on an immigration detention is, as far as we can determine, unique. Cf. Munyua, 2005 WL 43960, at *4, 2005 U.S. Dist. LEXIS 11499, at *11 ("Defendant has cited no case, and the Court has found none, adopting such a sweeping exemption under the FTCA for conduct by immigration officers like that alleged in this case. To the contrary, courts have exercised jurisdiction over cases brought under the FTCA involving misconduct by immigration officers at the border."). 34 1 B. Whether a Private Analogue Exists in This Case 2 The district court concluded that "[i]mmigration and 3 detention pending deportation are governed exclusively by federal 4 law and therefore have no private analogue." 5 Because Liranzo's "intentional tort claims [were] based upon the 6 detention of plaintiff pending deportation proceedings and the 7 process the immigration agents used to determine his citizenship 8 status," the district court found that he had "not established 9 that a comparable cause of action would exist against a private Mem. & Order at 10. 10 individual pursuant to New York State law." 11 the government similarly argues that "[r]emoval, and the 12 regulation thereof, are federal functions -- in which private 13 citizens cannot engage -- that are exclusively reserved to [the 14 Department of Homeland Security]." 15 original). 16 Id. Citing Feres, Def.'s Br. 16 (emphasis in To say that the challenged action is one that only the 17 federal government does in fact perform does not necessarily mean 18 that no private analogue exists. 19 that was the subject of Indian Towing, were at least at the time 20 operated only by the government. 21 persons d[id] not perform." 22 omitted). 23 not required to find a private analogue, because the FTCA's 24 statutory phrase "under like circumstances" does not mean "under Lighthouses, such as the one It was a function that "private 350 U.S. at 64 (quotation marks But "the presence of identical private activity" was 35 1 the same circumstances." 2 Olson, we are "require[d] . . . to look further afield" for a 3 private analogue when the government in fact is the only entity 4 that performs the actions complained of. 5 Id. at 64, 67 (emphases added). Under Olson, 546 U.S. at 46. Similarly, the fact that immigration detentions are 6 "uniquely governmental" does not mean they have no private 7 analogue for present purposes. 8 inescapably 'uniquely governmental' in that it is performed by 9 the Government." "[A]ll Government activity is Indian Towing, 350 U.S. at 67. This 10 consideration led the Indian Towing Court to reject a 11 construction of the Act under which "there would be no liability 12 for negligent performance of 'uniquely governmental functions,'" 13 id. at 64, as such an "exception" to the FTCA's waiver of 14 sovereign immunity would threaten to swallow the waiver entirely. 15 The Supreme Court has provided us with examples of how 16 to heed its admonition to "look further afield," Olson, 546 U.S. 17 at 46, for a private analogue. 18 proper analogy was that "[p]rivate individuals, who do not 19 operate lighthouses [or inspect mines], nonetheless may create a 20 relationship with third parties that is similar to the 21 relationship between a lighthouse operator and a ship dependent 22 on the lighthouse's beacon[, or a mine inspector and a miner 23 dependent on the inspector faithfully carrying out his duty]." 24 Id. at 47. In Indian Towing and Olson, the 36 1 Here, the proper analogy seems to us be a person who, 2 entirely in his or her private capacity, places someone under 3 arrest for an alleged violation of the law -- a so-called 4 "citizen's arrest." 5 absent a legal privilege to do so. 6 claim for false arrest and imprisonment under New York law,17 a 7 plaintiff must therefore prove that "(1) the defendant intended 8 to confine [the plaintiff], (2) the plaintiff was conscious of 9 the confinement, (3) the plaintiff did not consent to the Such a person may not execute an arrest To successfully establish a 10 confinement and (4) the confinement was not otherwise 11 privileged." 12 State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310, 13 314, cert. denied, 423 U.S. 929 (1975)) (emphasis added); accord 14 Posr v. Doherty, 944 F.2d 91, 97 (2d Cir. 1991). 15 II, whether the ICE agents' actions here were "otherwise 16 privileged" is determined by consulting federal privileges Caban II, 728 F.2d at 71 (quoting Broughton v. 17 And under Caban For the purposes of this discussion, we assume New York law applies because the initial arrest and detention occurred in New York. We express no opinion as to whether Louisiana law might apply to some portion of Liranzo's claims based on the time he was confined in Louisiana. 37 1 applicable to federal immigration officers.18 2 at 71. 3 Caban II, 728 F.2d There is some suggestion in the case law that the 4 proper analogy may be to state law enforcement conducted by 5 police officers instead of a citizen's arrest. 6 Court endorsed a private analogy to the liability of states and 7 state jailors. Muniz, 374 U.S. at 159-60. In Muniz, the And at least one 18 Following the Supreme Court's statement in Olson that "a court [must] look to the state-law liability of private entities, not to that of public entities, when assessing the Government's liability under the FTCA," 546 U.S. at 46, the Court of Appeals for the Ninth Circuit considered whether cases envisioning the application of federal privileges in FTCA suits, such as Caban II, survive Olson. In Tekle v. United States, 511 F.3d 839 (9th Cir. 2007), a case without a majority opinion as to the FTCA issue, see id. at 850 n.7, Judge Tashima read Olson to require the court to hold the IRS officers at issue to the same standards as a private person executing a citizen's arrest. Id. at 850-54. In doing so, Judge Tashima called into question a line of Ninth Circuit cases relying on Caban II -- including Arnsberg v. United States, 757 F.2d 971, 978 79 (9th Cir. 1985) and Rhoden, 55 F.3d at 430-31. Tekle, 511 F.3d at 850-54. Judge Fisher, on the other hand, refused to read Olson "to support the conclusion that law enforcement privileges should not be recognized in FTCA suits, and that federal officers are left only with those privileges available to private citizens" because "Olson did not involve such privileges, and . . . the FTCA's text does not clearly foreclose their availability." Id. at 857 (Fisher, J., concurring). Judge Kleinfeld would have found that the FTCA claim was not preserved for appeal, but if it was, he would have joined Judge Fisher's concurrence. Id. at 861-62 (Kleinfeld, J., concurring). This case does not require us to reach the issue of what effect, if any, Olson has on the continuing viability of Caban II, because the district court dismissed the case for lack of a private analogue and did not reach the merits. Thus, the district court did not have the occasion to opine on the substantive standards applicable to the ICE agents' conduct here, and we need not reach the issue now. Caban II remains the law of this Circuit. 38 1 court, the Northern District of California, has found the analogy 2 to law enforcement persuasive in the context of an FTCA claim 3 based on an immigration detention. 4 *4, 2005 U.S. Dist. LEXIS 11499, at *12 ("The fact that the 5 challenged activities took place at the border does not negate 6 the analogy to law enforcement . . . ."). 7 Court instructed that "a court [must] look to the state-law 8 liability of private entities, not to that of public entities, 9 when assessing the Government's liability under the FTCA . . . ." 10 11 See Munyua, 2005 WL 43960, at But in Olson, the 546 U.S. at 46 (emphasis added). Regardless of this ambiguity, in the context of this 12 case, the distinction between analogizing to a citizen's arrest 13 and an officer's arrest is of little moment -- in both cases, the 14 defendant will be liable for false arrest under New York law if 15 the arrest is not privileged. 16 Guilderland, 70 A.D.3d 1228, 1232, 897 N.Y.S.2d 264, 268 (3d 17 Dep't 2010) (police officer's arrest privileged for purposes of 18 false arrest claim if officer possessed probable cause to justify 19 arrest), appeal dismissed, 15 N.Y.3d 742, 933 N.E.2d 203, 906 20 N.Y.S.2d 804 (2010); White v. Albany Med. Ctr. Hosp., 151 A.D.2d 21 859, 860, 542 N.Y.S.2d 834, 835 (3d Dep't 1989) ("In New York, a 22 private citizen who makes an arrest does so at his peril; if the 23 person arrested did not in fact commit the crime for which he is 24 arrested, the person who arrests him is liable [for false arrest] See, e.g., Downs v. Town of 39 1 even if he acts in good faith or has probable cause to make an 2 arrest."). 3 purposes. 4 Therefore, either analogue would suffice for present The fact that New York law applies different 5 substantive standards to citizens' and officers' arrests, see 6 generally 59 N.Y. JUR. 2D FALSE IMPRISONMENT § 37, is also of no 7 significance for present purposes because, under Caban II -- 8 which provides the law of this Circuit -- immigration detentions 9 executed by federal immigration officers are judged under federal 10 standards (subject to the considerations discussed supra note 11 18). 12 Our conclusion that there is a private analogue to the 13 government behavior at issue here receives further support from 14 the fact that the FTCA explicitly waives sovereign immunity for 15 "any claim" based on the "acts or omissions of investigative or 16 law enforcement officers" "arising . . . out of . . . false 17 imprisonment [and] false arrest." 18 added). 19 United States has indeed waived its sovereign immunity from suit 20 as to Liranzo's "claim," which "aris[es] . . . out of . . . false 21 imprisonment [and] false arrest." 22 considerations discussed above, the government's suggestion that 23 we disregard the "false imprisonment" label Liranzo has affixed 24 to his claim so as to find it not to be encompassed by this 28 U.S.C. § 2680(h) (emphasis The plain language of the statute suggests that the 40 Id. In light of the 1 explicit statutory language is unpersuasive. 2 Br. at 3. 3 Akutowicz is not to the contrary. See Def.'s Letter The district court 4 in this case relied on Akutowicz's reasoning that "the withdrawal 5 of a person's citizenship constitutes a quasi-adjudicative action 6 for which no private analog exists," because "no private citizen 7 is empowered to certify the loss of American nationality," 859 8 F.2d at 1125-26. 9 there was no detention. See Mem. & Order at 9-10. But in Akutowicz, The only action complained of was the 10 removal of the plaintiff's citizenship. 11 status, which only the federal government is capable of altering. 12 A private individual cannot, without subsequent government 13 action, cause injury to another's citizenship. 14 person is of course capable of falsely arresting another. 15 generally Caban II, 728 F.2d at 71 (quoting Broughton, 37 N.Y.2d 16 at 456, 373 N.Y.S.2d at 93, 335 N.E.2d at 314)(setting out the 17 elements of a false arrest claim). 18 Citizenship is a legal But a private See As for the government's argument that immigration 19 detentions are quintessentially federal and therefore no private 20 analogue exists per Feres and its progeny, see Def.'s Br. 14, 16, 21 although the "[p]ower to regulate immigration is unquestionably 22 exclusively a federal power," DeCanas v. Bica, 424 U.S. 351, 354 23 (1976), superseded by statute on other grounds as stated in 24 Chamber of Commerce of United States v. Whiting, 131 S. Ct. 1968, 41 1 1974-75 (2011), it is not clear that immigration detentions are 2 necessarily and exclusively federal acts. 3 current federal immigration law, "State and local law enforcement 4 officials" may be empowered (consistent with state law) to 5 "arrest and detain" aliens in certain circumstances. 6 U.S.C. § 1252c(a); 8 U.S.C. § 1103(a)(10); Arizona v. United 7 States, 132 S. Ct. 2492, 2506 (2012) (describing limited federal 8 statutory authorization for state immigration detentions). 9 The fact that a complained of action occurs in a For instance, under See 8 10 quintessentially federal context, moreover, does not necessarily 11 mean that no private analogue exists. 12 is undoubtedly quintessentially federal, so is the federal prison 13 system. 14 extend Feres to the latter context. 15 In distinguishing Feres, the Muniz Court minimized Feres's 16 reliance on the fact that the military is quintessentially 17 federal. 18 seems best explained by the peculiar and special relationship of 19 the soldier to his superiors, the effects of the maintenance of 20 such suits on discipline, and the extreme results that might 21 obtain if suits under the Tort Claims Act were allowed for 22 negligent orders given or negligent acts committed in the course While the federal military The Supreme Court nonetheless, in Muniz, refused to Id. See Muniz, 374 U.S. at 162. It reasoned that "[i]n the last analysis, Feres 42 1 of military duty."19 2 These considerations are not present in the non-military context. 3 The case before us is thus more closely akin to Muniz than Feres. 4 In sum, it does not follow from the fact that immigration is a 5 quintessentially federal function that immigration detention is 6 without a private non-federal officer analogue. 7 torts occurring in quintessentially federal contexts, the 8 question remains whether analogous private liability exists under 9 state law -- and here, we conclude that it does. Id. (quotation marks and ellipsis omitted). Even for alleged 10 For these reasons, we conclude that the district court 11 erred in finding that there was no private analogue to Liranzo's 12 claims. 13 that he is entitled to a trial on the merits on remand. 14 Pl.'s Br. 9, 14. 15 whether, under the circumstances of this case, his action is We express no view, however, as to Liranzo's argument See We leave it to the district court to consider 19 One commentator has construed the post-Feres case law as having abandoned reliance on the original rationales articulated in Feres, and as having replaced them with new rationales for the "Feres doctrine" barring FTCA claims by active servicemen and women. See CHEMERINSKY, supra, at 674-75 ("Interestingly, the Court's explanation [for the Feres doctrine] has shifted over time. Originally, in Feres, the Court emphasized that the government could be held liable under the [FTCA] only for activities that also are undertaken by private entities . . . . But . . . the Supreme Court expressly discarded this limitation on recovery under the act [in Indian Towing and Rayonier], permitting suits even for activities done solely by the federal government. . . . Subsequent to the Feres decision, the Court began emphasizing a different rationale for precluding recovery for injuries received incident to military service: the need to preserve military discipline."). 43 1 subject to dismissal on the merits on motion to dismiss or for 2 summary judgment. 3 C. Liranzo's Fourth Amendment Claim 4 Liranzo has not raised any argument against the 5 district court's dismissal of his separate Fourth Amendment 6 claim. See Mem. & Order at 11. We therefore affirm the district 7 court's ruling in this respect. See Universal Church v. Geltzer, 8 463 F.3d 218, 229 (2d Cir. 2006) ("Generally[,] claims not raised 9 on appeal are deemed abandoned, at least when it is the appellant 10 11 12 who fails to do so."). CONCLUSION For the foregoing reasons, we affirm as to the district 13 court's dismissal of Liranzo's Fourth Amendment claim. 14 the district court's judgment insofar as it found an absence of 15 subject matter jurisdiction over Liranzo's FTCA claims and remand 16 for further proceedings in the district court. 17 district court did not have the occasion to consider which 18 standard applies on the merits, the district court should 19 consider in the first instance on remand which federal standards 20 govern the determination of whether the government official's 21 actions here were privileged. 44 We vacate Because the
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