Quintero-Perez v. United States, No. 17-56610 (9th Cir. 2021)
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Yañez was shot and killed by a U.S. Border Patrol agent while on the border fence, which is in the United States. After being shot, Yañez fell and landed across the international border. Yañez’s family filed civil claims against the government and individual federal agents.
The Ninth Circuit affirmed the rejection of claims under the Alien Tort Statute (ATS) and the Federal Tort Claims Act (FTCA), and a “Bivens” claim. The court rejected an argument that the shooting and Border Patrol’s Rocking Policy, authorizing deadly force in response to rock-throwing, violated an international jus cogens norm against extrajudicial killing and was actionable under the ATS; the ATS does not waive sovereign immunity, even for jus cogens violations. Claims under the FTCA were time-barred. Plaintiff initially did not pursue an FTCA claim because she believed that, under Ninth Circuit precedent, judgment on an FTCA claim would have foreclosed her Bivens claims. Plaintiff amended the complaint to assert FTCA claims after the Supreme Court abrogated that precedent in 2016. The FTCA’s judgment bar did not foreclose a contemporaneously filed Bivens claim when the government had prevailed on the FTCA claim, so the Supreme Court’s decision was irrelevant to this situation. That mistake of law was not outside of plaintiff's control and did not qualify as an extraordinary circumstance supporting equitable tolling. Special factor counseled against extending a Bivens remedy; doing so would challenge a high-level executive policy and implicated national security.
Court Description: Civil Rights The panel affirmed the district court’s (1) dismissal on the pleadings of plaintiff’s claims brought under the Alien Tort Statute and the Federal Tort Claims Act; and (2) grant of summary judgment for defendants on plaintiff’s claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), in an action arising from the fatal shooting of a Mexican national by the U.S. Border Patrol on the U.S.-Mexico border fence. * The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri, sitting by designation. QUINTERO PEREZ V. UNITED STATES 3 The panel first rejected plaintiff’s argument that the shooting and Border Patrol’s Rocking Policy, authorizing deadly force in response to rock throwing, violated an international jus cogens norm against extrajudicial killing and thus was a tort actionable under the Alien Tort Statute (“ATS”). Citing this court’s decision in Tobar v. United States, 639 F.3d 1191 (9th Cir. 2011), and consistent out-of- circuit authority, the panel held that the ATS does not waive sovereign immunity, even for jus cogens violations. Without a waiver of sovereign immunity by the United States, plaintiff’s ATS claim against the United States failed and was properly dismissed. The panel held that the claims brought under the Federal Tort Claims Act (“FTCA”) were time-barred and equitable tolling was not available under the circumstances. Plaintiff initially did not pursue an FTCA claim because she believed that, under Ninth Circuit authority in effect at the time, specifically Pesnell v. Arsenault, 543 F.3d 1038 (9th Cir. 2008), judgment on an FTCA claim would have foreclosed her Bivens claims. Plaintiff amended her complaint to assert FTCA claims after the Supreme Court abrogated Pesnell in Simmons v. Himmelreich, 136 S. Ct. 1843 (2016). The panel explained that under Kreines v. United States, 959 F.2d 834 (9th Cir. 1992), the FTCA’s judgment bar did not foreclose a contemporaneously filed Bivens claim when the government had prevailed on the FTCA claim. Thus, the Supreme Court’s abrogation of Pesnell was largely irrelevant to plaintiff’s situation. Plaintiff’s seeming lack of awareness of Kreines constituted a mistake of law that was not outside of her control and therefore did not qualify as an extraordinary circumstance supporting equitable tolling. Addressing the Bivens cause of action, and applying Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), and Hernandez v. 4 QUINTERO PEREZ V. UNITED STATES Mesa, 140 S. Ct. 735 (2020), the panel first concluded that the Bivens claims, involving a fatal shooting at the border by a federal agent of a Mexican national who had crossed into the United States, arose in a new context. The panel next determined that plaintiff had no adequate alternative remedy because even if plaintiff could bring a timely FTCA claim, the FTCA on its own would not have afforded comparable deterrence and compensation options. Finally, the panel determined that a special factor counseled against extending the Bivens remedy to the Border Patrol Chief, because doing so would challenge a high-level executive policy. As to the Border Patrol agent involved in the shooting, applying Hernandez, the panel concluded that the Bivens claim implicated the special factor of national security and was therefore foreclosed. Judge Friedland concurred other than concurring only in the judgment as to Part I. Judge Friedland would affirm the dismissal of plaintiff’s ATS claim on the ground that plaintiff had not satisfied the required elements of her claim, namely that the Rocking Policy authorized extrajudicial killing, that this particular type of extrajudicial killing was a jus cogens violation, and that this particular type of extrajudicial killing constituted an actionable ATS tort. She therefore would not reach the broader question of whether the United States has sovereign immunity for claims of jus cogens violations that are brought under the ATS.
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