Robert Lorsch v. United States of America, et al, No. 2:2014cv02202 - Document 41 (C.D. Cal. 2015)
Court Description: MEMORANDUM OF DECISION REGARDING DEFENDANTS' MOTION TO DISMISS OR ALTERNATIVELY FOR SUMMARY JUDGMENT by Magistrate Judge Andrew J. Wistrich. See document for details. (yb)
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Robert Lorsch v. United States of America, et al Doc. 41 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 10 11 12 13 14 15 16 ROBERT LORSCH, ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA, ) et al., ) Defendants. ) ) ___________________________________) Case No. CV 14-2202 AJW MEMORANDUM OF DECISION REGARDING DEFENDANTS’ MOTION TO DISMISS OR ALTERNATIVELY FOR SUMMARY JUDGMENT 17 Proceedings 18 Plaintiff filed a complaint against defendants United States of 19 America and the United States Department of Agriculture (“USDA”) 20 pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 267121 2680 (“FTCA”). The complaint alleges claims for negligence, abuse of 22 process, malicious prosecution, intentional infliction of emotional 23 distress (“IIED”), and negligent infliction of emotional distress 24 (“NIED”). [Docket No. 1]. 25 Defendants filed a motion to dismiss the complaint for lack of 26 subject matter jurisdiction or, in the alternative, for summary 27 judgment. Plaintiff filed opposition to the motion, and defendants 28 Dockets.Justia.com 1 filed a reply. [Docket Nos. 26, 30, 31]. After considering the moving 2 and opposing papers and the arguments made by counsel during the 3 hearing on the motion, the Court granted defendants’ motion in an 4 order dated March 31, 2015. [See Docket Nos. 33, 36]. This memorandum 5 of decision describes the basis for that ruling. 6 Motion to Dismiss for Lack of Subject Matter Jurisdiction 7 A complaint 8 jurisdiction. 9 jurisdiction may Fed. bears be R. the dismissed Civ. P. burden for lack 12(b)(1). of of “The establishing subject party matter asserting subject matter 10 jurisdiction on a motion to dismiss for lack of subject matter 11 jurisdiction.” In re Dynamic Random Access Memory (DRAM) Antitrust 12 Litig., 13 jurisdiction must exist as of the time the action is commenced.” 14 Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 15 858 F.2d 1376, 1380 (9th Cir. 1988), cert. denied, 488 U.S. 1006 16 (1989). 546 F.3d 981, 984 (9th Cir. 2008). “Subject matter 17 Subject matter jurisdiction may be challenged in two ways. See 18 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 19 In a facial attack, the challenger asserts that the allegations 20 contained in a complaint are insufficient on their face to invoke 21 federal jurisdiction. Safe Air, 373 F.3d at 1039. 22 attack, the challenger disputes the truth of the allegations that 23 facially demonstrate the existence of federal jurisdiction. Safe Air, 24 373 F.3d at 1039. 25 unlike a facial attack, a factual attack “relie[s] on extrinsic 26 evidence and [does] not assert lack of subject matter jurisdiction 27 solely on the basis of the pleadings.” Safe Air, 373 F.3d at 1039 28 (quoting Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. In a factual The essential difference between the two is that, 2 1 2003)). In evaluating a factual attack under Rule 12(b)(1), the court is 2 3 not limited to reviewing the allegations in the pleadings, 4 Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 5 1558 (9th Cir. 1987), and the allegations of the complaint are not 6 presumed to be true. 7 (9th Cir. 1983). 8 evidence properly before the court without converting the motion into 9 one for summary judgment. Augustine v. United States, 704 F.2d 1074, 1077 The court may rely on affidavits or other extrinsic See Warren v. Fox Family Worldwide, Inc., 10 328 F.3d 1136, 1139 (9th Cir. 2003); Ass’n of Am. Med. Coll. v. 11 United States, 217 F.3d 770, 778 (9th Cir. 2000); St. Clair v. City of 12 Chico, 880 F.2d 199, 201 (9th Cir.1989), cert. denied, 493 U.S. 993 13 (1989). 14 other evidence necessary to satisfy its burden of establishing that 15 the court, in fact, possesses subject matter jurisdiction. 16 Am. Med. Coll., 217 F.3d at 778; St. Clair, 880 F.2d at 201. 17 district court does not abuse its discretion by relying upon this 18 extra-pleading material in deciding the issue, even if it becomes 19 necessary to resolve factual disputes to determine whether subject 20 matter jurisdiction exists. Ass’n of Am. Med. Coll., 217 F.3d at 778; 21 St. Clair, 880 F.2d at 201. The party opposing the motion must present affidavits or Ass’n of The 22 When, however, a jurisdictional motion involves factual issues 23 which also go to the merits, the trial court should employ the 24 standard applicable to a motion for summary judgment. 25 813 F.2d at 1558 (quoting Augustine, 704 F.2d at 1077); Capitol 26 Indus.-EMI, Inc. v. Bennett, 681 F.2d 1107, 1118 (9th Cir. 1982) (“The 27 principle underlying the rule is that the tenor of Rule 56 suggests 28 that summary judgment thereunder deals with the merits of an action 3 Trentacosta, 1 and not with matters of abatement.”). “Under this standard, the 2 moving party should prevail only if the material jurisdictional facts 3 are not in dispute and the moving party is entitled to prevail as a 4 matter of law.” 5 quotation marks omitted). Trentacosta, 813 F.2d at 1558 (internal citation and 6 The parties agree that this motion is governed by Rule 12(b)(1) 7 rather than by Rule 56. [Transcript of September 29, 2014 Hearing 8 (“Transcript”) 4, 28]. 9 1113, 1118 (E.D. Cal. 2002)(concluding that since the “[d]iscretionary exception See Greene v. United States, 207 F. Supp. 2d 10 function 11 jurisdiction of the court,” the “most appropriate procedural vehicle 12 to drive the court’s decision is Rule 12(b)(1) — especially in that 13 the 14 function exception are not essentially in dispute”)(citing Reed v. 15 U.S. Dep’t of the Interior, 231 F.3d 501, 504 (9th Cir. 2000); Vickers 16 v. United States, 228 F.3d 944, 949 (9th Cir. 2000)). underlying facts to the related FTCA to involves assertion the of subject the matter discretionary Allegations of the complaint 17 18 During the summer of 2003, Wildlife Waystation (“WWS”) founder 19 and Director of Animal Care Martine Colette (“Colette”) requested that 20 defendants reinspect the WWS facility so that the suspension of her 21 Animal Welfare Act (“AWA”) exhibitor’s license pursuant to a 2002 22 consent decision in a prior administrative action against WWS and 23 Colette could be lifted. [Complaint 7]. Defendants conducted an 24 inspection of WWS from August 19 through 21, 2003 (the “August 2003 25 inspection”). 26 Garland 27 Garland and Lorang were employees of the Animal and Plant Health 28 Inspection Service(“APHIS”), a USDA agency. Garland was employed by The August 2003 inspection was conducted by Kathleen (“Garland”), Jeanne Lorang 4 (“Lorang”), and two others. 1 APHIS as a supervisory Veterinary Medical Officer (“VMO”), and Lorang 2 was employed by APHIS as an Animal Care Inspector (“ACI”). [Complaint 3 4, 9-10]. Plaintiff alleges that Garland, Lorang, and another APHIS 4 employee, Laurie Gage (“Gage”), a VMO, “were either investigative 5 officers or law enforcement officers, or both, employed by USDA.” 6 [Complaint 9]. 7 parties, the following USDA employees are also named as defendants: 8 Lupe Aguilar (“Aguilar”), an investigator employed by the UDSA’s 9 Investigative and Enforcement Service; Colleen Carroll (“Carroll”), an 10 attorney working for the USDA; and Robert M. Gibbens (“Gibbens”), 11 Director, Western Region, of APHIS. [Complaint 4-5]. The complaint 12 alleges no facts that specifically identify or involve Aguilar, 13 Carroll, or Gibbens.1 14 After the In the section of the complaint identifying the August 2003 inspection was completed, plaintiff 15 participated by phone in an exit interview. [Complaint 9]. WWS, 16 Colette, and plaintiff assumed that the August 2003 inspection was in 17 response to Colette’s request for reinspection. They were unaware that 18 defendants had filed a new administrative enforcement action against 19 WWS and Colette on or about August 15, 2003 (the “2003 Action”), and 20 that the August 2003 inspection was “in aid of [defendants’]newly- 21 filed, but undisclosed and unserved complaint” in the 2003 Action. 22 [Complaint 6-10]. Defendants served the complaint in the 2003 Action 23 on August 23, 2003. 24 complaint. [Complaint 10]. 25 Plaintiff was not named as a respondent in that On or about September 16, 2003, plaintiff spoke to Garland and 26 1 27 28 The complaint alleges that some acts or omissions were undertaken by the “EMPLOYEES,” which the complaint defines as “all or some” of the named defendants and never defines with more specificity. [Complaint 5 (emphasis added)]. 5 1 Lorang by phone. [Complaint 10]. 2 named as a respondent in an amended complaint filed in the 2003 3 Action. [Complaint 11]. Plaintiff alleges that he was named as a 4 respondent in the 2003 Action “without probable cause, with malice, 5 and with the intent to harm [his] reputation and finances and to cause 6 him grief and anguish by knowingly bringing false charges against 7 him.” [Complaint 12]. Plaintiff alleges that “the investigative law 8 enforcement negligently 9 ordinary duty of care with regard to conducting an investigation of 10 Plaintiff . . . [and] negligently failed to meet the applicable 11 special duty of care with regard to conducting an investigation of 12 Plaintiff by failing to follow the USDA guidelines for conducting 13 investigations.” [Complaint 12]. 14 from the 2003 Action. [Complaint 13]. officers Shortly thereafter, plaintiff was failed to meet the applicable Plaintiff eventually was dismissed 15 Plaintiff also alleges that defendants improperly named him as a 16 respondent in another administrative action brought against WWS around 17 August 2007 (the “2007 Action”). [Complaint 13]. 18 that naming him as a respondent in the 2007 Action was improper for 19 the same reasons that naming him in the 2003 Action was improper. 20 [Complaint 13-14]. 21 the eve of trial.” [Complaint 15]. Plaintiff alleges that defendants 22 caused him financial, professional, reputational, and emotional harm 23 by naming him in the 2003 Action and 2007 Action (collectively, the 24 “enforcement actions”) and by prosecuting the enforcment actions 25 against him until their dismissal. [Complaint 14-16]. 26 27 28 Plaintiff alleges Plaintiff was dismissed from the 2007 Action “on The parties’ contentions Defendants contend that the court lacks subject matter jurisdiction over plaintiff’s complaint under the FTCA’s discretionary 6 1 function exception and its intentional torts exception. [Defendants’ 2 Motion to Dismiss or for Summary Judgment (“Defs’ Mot.”) 1-2]. 3 Defendants argue that the FTCA’s discretionary function exception 4 applies because the APHIS inspections and investigations which led to 5 plaintiff’s being named a respondent in the enforcement actions were 6 within the discretion delegated to the USDA and APHIS under the AWA. 7 [Defs’ Mot. 12]. 8 exception applies because none of the USDA employees who allegedly 9 took part in the inspections or investigation of WWS described in the 10 complaint were empowered to execute searches, seize evidence, or make 11 arrests for violations of federal law, and therefore those defendants 12 are not “investigative or law enforcement officers” within the meaning 13 of the FTCA. [Defs’ Mot. 8]. 14 Plaintiff Defendants contend that the intentional torts responds that the FTCA’s discretionary function 15 exception does not apply because, in his view, the decision to name 16 him as a respondent in the administrative actions was made pursuant to 17 the requirements of the AWA, the discretionary function exception does 18 not apply to the commission of intentional torts, and “[d]efendants’ 19 failure to investigate Plaintiff prior to bringing an action against 20 him vitiates any contention that defendants were acting in their 21 discretion.” [Plaintiff’s Opposition (“Pl’s Opp.”) 14, 11]. Plaintiff 22 also contends that the FTCA’s intentional torts exception does not 23 apply because “Defendants are APHIS officials who are empowered to 24 perform 25 animals.” [Pl’s Opp. 18]. 26 a wide variety of searches and even seize and destroy Discretionary Function Exception, 28 U.S.C § 2680(a) 27 The FTCA was enacted “primarily to remove the sovereign immunity 28 of the United States from suits in tort.” Levin v. United States, — 7 1 U.S. —, 133 S. Ct. 1224, 1228 (2013) (quoting Richards v. United 2 States, 369 U.S. 1, 6 (1962)). The FTCA gives federal district courts 3 exclusive jurisdiction over claims against the United States for 4 “injury or loss of property, or personal injury or death caused by the 5 negligent or wrongful act or omission” of federal employees acting 6 within the scope of their employment. 28 U.S.C. § 1346(b)(1). 7 The FTCA also contains enumerated exceptions that serve as 8 limitations on the waiver of sovereign immunity. Levin, 133 S. Ct. at 9 1228. As part of the limited waiver of sovereign immunity, the 10 discretionary function exception to the FTCA precludes the imposition 11 of liability for conduct “based upon the exercise or performance or 12 the failure to exercise or perform a discretionary function or duty on 13 the part of a federal agency or an employee of the Government, whether 14 or not the discretion involved be abused.” 28 U.S.C. § 2680(a). 15 application of this exception involves a two-step inquiry. See United 16 States v. Gaubert, 499 U.S. 315, 323-324 (1991); Berkovitz v. United 17 States, 486 U.S. 531, 536 (1988). The 18 First, the act or conduct at issue must be discretionary in 19 nature, in that it “involves an element of judgment or choice.” 20 Berkovitz, 486 U.S. at 536 (citing Dalehite v. United States, 346 U.S. 21 15, 34 (1953)). The essential element of judgment or choice is absent 22 “when a federal statute, regulation, or policy specifically prescribes 23 a course of action for an employee to follow . . . [because] the 24 employee has no rightful option but to adhere to the directive.” 25 Berkovitz, 486 U.S. at 536. 26 appropriately be the product of judgment or choice, then there is no 27 discretion in the conduct for the discretionary function exception to 28 protect.” Berkovitz, 486 U.S. at 536. “[I]f the employee’s conduct cannot 8 1 Second, “assuming the challenged conduct involves an element of 2 judgment, a court must determine whether that judgment is of the kind 3 that the discretionary function exception was designed to shield.” 4 Berkovitz, 486 U.S. at 536. 5 function 6 legislative and administrative decisions grounded in social, economic, 7 and political policy through the medium of an action in tort.” 8 Berkovitz, 486 U.S. at 536-537 (quoting United States v. Varig 9 Airlines, 467 U.S. 797, 814 (1984)). exception to Congress designed the discretionary “prevent judicial ‘second-guessing’ of “The discretionary function 10 exception insulates the Government from liability if the action 11 challenged in the case involves the permissible exercise of policy 12 judgment.” Berkovitz, 486 U.S. at 537. 13 conduct, not the status of the actor, that governs the applicability 14 of this exception. Varig Airlines, 467 U.S. at 813. “[I]f a regulation 15 allows the employee discretion, the very existence of the regulation 16 creates a strong presumption that a discretionary act authorized by 17 the regulation involves consideration of the same policies which led 18 to the promulgation of the regulations.” Gaubert, 499 U.S. at 324. It is the nature of the 19 The government bears the burden of proving the applicability of 20 the discretionary function exception. Terbush v. United States, 516 21 F.3d 1125, 1128 (9th Cir. 2008); Dichter-Mad Family Partners, LLP v. 22 United States, 707 F. Supp. 2d 1016, 1028 (C.D. Cal. 2010). 23 government can meet its initial burden in one of two ways. See 24 Dichter-Mad, 707 F. Supp. 2d at 1029. First, “the government may show 25 that a statute, regulation or policy confers discretion on the 26 government actor; this gives rise to a ‘strong presumption’ that the 27 alleged harmful act was guided by policy judgment.” Dichter-Mad, 707 28 F. Supp. 2d at 1029 (citing Gaubert, 499 U.S. at 324). 9 The If the 1 applicable statute 2 discretion, no presumption attaches that the alleged harmful act was 3 guided by a policy judgment. Dichter-Mad, 707 F. Supp. 2d at 1027 4 (citing Gaubert, 499 U.S. at 323-325). Second, the government “may 5 show that the actor’s course of action was ‘of the kind’ that is 6 ‘susceptible to policy analysis.’” Dichter-Mad, 707 F. Supp. 2d at 7 1029 (quoting Gaubert, 499 U.S. at 322-325); see also GATX/Airlog Co. 8 v. United States, 286 F.3d 1168, 1178 (9th Cir. 2002) (“[T]he question 9 is not whether policy factors necessary for a finding of immunity were 10 in fact taken into consideration, but merely whether such a decision 11 is susceptible to policy analysis.”). 12 satisfies the government’s burden of proving the applicability of the 13 discretionary function exception. Dichter-Mad, 707 F. Supp. 2d at 1029 14 (citing Blackburn v. United States, 100 F.3d 1426, 1436 (9th Cir. 15 1996)). 16 irrelevant 17 exception, [and] the question of how the government is alleged to have 18 been negligent is critical.” Whisnant v. United States, 400 F.3d 1177, 19 1185 (9th Cir. 2005)(citation omitted). regulation does not give the employee Either of these showings “[T]he question of whether the government was negligent is to Whether 20 or a the applicability challenged action of the falls discretionary within the function discretionary 21 function exception requires a particularized analysis of the specific 22 agency action challenged. GATX/Airlog, 286 F.3d at 1174. Thus, before 23 turning to Gaubert and Berkovitz’s two-step inquiry, the court must 24 first 25 wrongdoing.” Berkovitz, 486 U.S. at 540. 26 agency conduct that the plaintiff challenges, the court looks to the 27 allegations of the plaintiff’s complaint. See Whisnant, 400 F.3d at 28 1185. identify plaintiff’s “specific 10 allegations of agency To identify the particular 1 Plaintiff alleges that he was named as a respondent in the 2003 2 Action 3 [Complaint 10]. 4 inspectors’ “arbitrary actions,” “demanded that [they] treat [WWS] 5 fairly,” and “was critical of the USDA investigators and inspectors.” 6 [Complaint 11]. “Within days of being telephonically criticized by 7 Plaintiff, investigating 8 Employees for the USDA caused the [2003 Action] to be amended by 9 naming Plaintiff as a defendant to each and every claim made against 10 WWS by the USDA without regard for Lorsch’s personal participation in, 11 or percipient knowledge of, the conduct giving rise to the claims 12 asserted in the” 2003 Action. 13 that “the investigative law enforcement officers” (that is, Lorang, 14 Garland, and Gage) “did not perform any additional inspections or 15 obtain additional documents,” and none of the investigative reports 16 prepared up to that point attributed any facts or wrongdoing to 17 plaintiff. [Complaint 11; see Pl’s Opp. 4]. 18 alleges 19 plaintiff and also negligently failed to follow the USDA guidelines 20 for conducting investigations. [Complaint 12]. Plaintiff alleges that 21 the same wrongful conduct that occurred in the 2003 Action (failure to 22 investigate, prosecution without probable cause, etc.) caused him to 23 be named as a respondent in the 2007 Action. [Complaint 14-15]. 24 after a the that telephone conversation with Lorang and Garland. Plaintiff alleges that he became upset by the Lorang, law enforcement [Complaint 5, 11]. Garland, and Gage officers and the Plaintiff alleges As a result, plaintiff negligently investigated Defendants have met their burden to prove that the discretionary 25 function exception applies. 26 statute, 27 government actor. Dichter-Mad, 707 F. Supp. 2d at 1029. 28 government regulates the treatment of animals through the [AWA], which regulation, or The government may submit evidence of a policy that 11 confers discretion on the “The federal 1 sets standards for the treatment of certain animals that are bred for 2 sale, exhibited to the public, used in biomedical research, or 3 transported commercially.” Puppies 'N Love, v. City of Phoenix, — F. 4 Supp. 2d —, 2015 WL 4532586, at *1 (D. Ariz. July 27, 2015) (citing 5 U.S.C. §§ 2131-2159). Through the AWA, Congress has given authority 6 to the Secretary of Agriculture (“Secretary”) to perform certain 7 animal welfare functions and to promulgate rules and regulations to 8 effectuate the purposes of the AWA. See 7 U.S.C. §§ 2131 et seq. 9 The Secretary has delegated the responsibility for implementing 10 the AWA to the Under Secretary for Marketing and Regulatory Programs, 11 7 C.F.R. § 2.22(a)(2)(vi), who has delegated these responsibilities to 12 the Administrator of APHIS, 7 C.F.R. § 2.80(a)(6). [Defs’ Mot., 13 Exhibit (“Ex.”) 1, Declaration of Bernadette Juarez (“Juarez Decl.”), 14 at 20]. 15 Deputy Administrator of Animal Care to establish acceptable standards 16 of humane care and treatment for regulated animals and to monitor and 17 achieve compliance through inspections, enforcement, education, and 18 cooperative efforts under the AWA, 7 C.F.R. §§ 371.7, 371.11(b); and 19 (2) the Deputy Administrator of Marketing and Regulatory Programs 20 Business Services (“MRPBS”) to direct and coordinate investigations 21 related 22 enforcement of program laws and regulations with the Office of the 23 General Counsel, and to support and enforce APHIS program activities, 24 7 C.F.R. § 371.5(b)(7), (8) and 371.11(b). [Juarez Decl. 20-21]. 25 Within APHIS and MRPBS, the Investigative and Enforcement Service 26 (“IES”) 27 violations of, the AWA insofar as it relates to animal issues under 28 APHIS’s jurisdiction. [Juarez Decl. 7]. The APHIS Administrator has delegated authority to: (1) the to is APHIS program responsible for laws and enforcing, 12 regulations, and to coordinate investigating alleged 1 The language of the AWA and the AWA regulations demonstrates that 2 decisions pertaining to enforcing and investigating alleged violations 3 of the AWA or the AWA regulations are discretionary in nature. 4 Specifically, “[t]he Secretary shall make such investigations or 5 inspections as he deems necessary to determine whether any dealer, 6 exhibitor . . . has violated or is violating any provision of this 7 chapter or any regulation or standard issued thereunder . . . .” 7 8 U.S.C. § 2146(a) (emphasis added). 9 licensees under the AWA to allow APHIS officials to inspect their 10 facilities and records, and to perform certain specific investigatory 11 duties “as the APHIS officials consider necessary to enforce the 12 provisions of the [AWA] . . . .” 9 C.F.R. § 2.126(a) (emphasis added). 13 If the Secretary determines that a licensee is in violation of any of 14 the AWA’s provisions, the Secretary “may suspend . . . or revoke such 15 license,” “may . . . assess[] a civil penalty,”and “may also make an 16 order that such person shall cease and desist from continuing such 17 violation.” 18 penalties against licensees also may be brought by attorneys of USDA 19 with 20 (“Prosecution of such violations shall . . . be brought initially 21 before United States magistrate judges . . . and, with the consent of 22 the Attorney General, may be conducted . . . by attorneys of the 23 United States Department of Agriculture.”) (emphasis added). the 7 U.S.C. consent of § The AWA regulations also require 2149(a)-(b) the Attorney (emphasis General. added). 7 U.S.C. Criminal § 2149(d) The enforcement provisions of the AWA are not mandatory rules 24 25 that dictate the circumstances under 26 licensee’s agent must or must not be prosecuted. Cf. Dichter-Mad, 707 27 F. Supp. 2d at 1035 (holding that the decision whether to investigate 28 and bring enforcement proceedings by SEC employees was discretionary 13 which a licensee or the 1 because the relevant statute “repeatedly uses permissive language 2 rather than mandatory language”). 3 Secretary or those authorized to act on the Secretary’s behalf to 4 bring civil or criminal charges, or to suspend or revoke a license, 5 for violations of the AWA or the AWA regulations is a discretionary 6 one. 7 prosecute plaintiff involved an “element of judgment or choice.” 8 Berkovitz, 486 U.S. at 536. Rather, the decision by the Thus, the first Berkovitz prong is met because the decision to See 9 The second Berkovitz prong is also met because the judgment 10 involved in defendants’ decision to file enforcement actions against 11 plaintiff is of the kind that the discretionary function exception was 12 designed to shield. 13 discretion, “the very existence of the regulation[s] creates a strong 14 presumption that a discretionary act authorized by the regulation[s] 15 involves 16 promulgation of the regulations.” Dichter-Mad, 707 F. Supp. 2d at 1027 17 (emphasis in original). 18 was to ensure that animals intended for use in research facilities or 19 for exhibition purposes or for use as pets are provided humane care 20 and treatment, to assure the humane treatment of animals during 21 transport in commerce, and to protect the owners of animals from the 22 theft of their animals by preventing the sale or use of animals that 23 have been stolen. 7 U.S.C. § 2131. The second Berkovitz prong is 24 satisfied because those statutory and regulatory provisions create a 25 “strong presumption” that in inspecting and investigating WWS and in 26 prosecuting 27 employees identified in the complaint acted to promote the “same 28 policies” that underlie the AWA and the AWA regulations. Dichter-Mad, Because the AWA regulations give APHIS employees consideration the of the same policies which led to the Congress’s stated policy in enacting the AWA enforcement actions 14 against plaintiff, the USDA 1 707 F. Supp. 2d at 1027. 2 Even if the court credits as true plaintiff’s allegations that no 3 meaningful investigation occurred, and that no policy considerations 4 were actually weighed, the second Berkovitz prong is satisfied because 5 the decision to prosecute the enforcement actions against plaintiff is 6 a decision “of the kind” that is “susceptible to policy analysis.” 7 Dichter-Mad, 707 F. Supp. 2d at 1029. “The decision whether or not to 8 prosecute an individual is a discretionary function for which the 9 United States is immune from liability.” Wright v. United States, 719 10 F.2d 1032, 1035 (9th Cir. 1983) (holding that the discretionary 11 function exception shielded the decision to indict the plaintiff for 12 failing to file tax returns), abrogated on other grounds by Gasho v. 13 United States, 39 F.3d 1420 (9th Cir. 1994) (citing Smith v. United 14 States, 375 F.2d 243 (5th Cir.), cert. denied, 389 U.S. 841 (1967)); 15 see also General Dynamics Corp. v. United States, 139 F.3d 1280, 1282, 16 1286 (9th Cir. 1998) (stating that “prosecutorial discretion is 17 covered” under the discretionary function exception, and holding that 18 the discretionary function exception barred the plaintiff’s FTCA 19 negligence action against a federal agency whose negligently prepared 20 report caused the plaintiff’s errant prosecution for fraud) (citing 21 Wright, 719 F.2d at 1025; Gray v. Bell, 712 F.2d 490, 513 (D.C. Cir. 22 1983) (“Prosecutorial decisions as to whether, when and against whom 23 to initiate prosecution are quintessential examples of governmental 24 discretion in enforcing the criminal law, and, accordingly, courts 25 have uniformly found them to be immune under the discretionary 26 function exception.”)(footnote omitted)). Therefore, defendants have 27 met 28 discretionary function exception. their initial burden to prove 15 the applicability of the 1 Since the government satisfied its initial burden, the burden 2 shifts to plaintiff to present sufficient evidence to withstand 3 dismissal for lack of jurisdiction. Blackburn, 100 F.3d at 1436. In 4 line with the two-step inquiry articulated in Gaubert and Berkovitz, 5 plaintiff may meet his burden by showing either “(1) that there are 6 mandatory rules prescribing the actor’s course of action, or (2) that 7 the 8 ‘susceptible to policy analysis.’” Dichter-Mad, 707 F. Supp. 2d at 9 1029 (quoting Gaubert, 499 U.S. at 322-325). 10 actor’s course of action was not ‘of the kind’ that is Plaintiff has not pointed to any mandatory rules prescribing the 11 conduct of defendants’ employees in this case. 12 however, that defendants are “estopped from contending that they were 13 exercising their discretion in bringing Plaintiff into the enforcement 14 action since they previously have contended that bringing Plaintiff 15 into the action was pursuant to the prescribed requirements of the 16 AWA.” [Pl’s Opp. 14]. 17 Plaintiff’s estoppel argument is Plaintiff contends, conclusory. He does not 18 identify the “prescribed requirements” on which he contends defendants 19 previously relied or the estoppel theory (such as judicial estoppel or 20 collateral estoppel) on which his argument rests. Since plaintiff has 21 not 22 estoppel, his estoppel argument is insufficient to meet his burden to 23 overcome the strong presumption that the conduct of defendants’ 24 employees in filing and prosecuting the enforcement actions was 25 discretionary rather than mandatory. pointed to any factual or legal circumstances creating an 26 Plaintiff also contends that the discretionary function exception 27 is inapplicable because defendants’ employees “complete[ly] failed” to 28 investigate him and therefore failed to “actually exercise” discretion 16 1 before prosecuting him, and because the administrative law judge found 2 that 3 unjustified.” [Pl’s Opp. 12-14]. 4 support those assertions. the case against plaintiff was “entirely baseless and Plaintiff’s evidence fails to 5 In the August 4, 2008 initial administrative decision dismissing 6 the 2003 Action as to both plaintiff and Colette, the Administrative 7 Law Judge (“ALJ”) found, among other things, that: (1) the APHIS 8 officials 9 “completed an extremely thorough investigation”; (2) plaintiff had 10 offered “no evidence” that APHIS selectively enforced the AWA against 11 him in violation of his constitutional rights, and “the very nature of 12 enforcement of remedial statutes by government agencies requires an 13 agency to frequently choose who to enforce against in order to best 14 effectuate the statute’s remedial purposes”; and (3) although APHIS 15 did not “literally follow each step” of the inspection protocols in 16 its “inspection guides” during the August 2003 and September 2003 17 investigations, no prejudice resulted because the “guides do not 18 indicate 19 intended for use as ‘guides.’” [Declaration of Robert Lorsch in 20 Opposition to Motion to Dismiss (“Lorsch Decl.”), Ex. A at 48-51]. who that inspected each of WWS their in August procedures 2003 was and September mandatory—they 2003 were 21 The government appealed that decision. The ALJ who presided over 22 the administrative appeal characterized the first ALJ’s decision as 23 “thorough and well-reasoned,” agreed with “most, but not all” of the 24 first ALJ’s findings, and declined to consider any issues not raised 25 by the government on appeal, including the first ALJ’s findings 26 concerning the methodology and quality of APHIS’s investigation and 27 the absence of evidence of selective enforcement. [See Lorsch Decl., 28 Ex. B at 75-76]. The second ALJ found that plaintiff “served at 17 1 various times as ‘best friend’ and advocate” for WWS and that there 2 was “no dispute” that plaintiff “actively participated in certain 3 aspects of” WWS’s operations by performing a variety of activities on 4 its behalf, including contributing financially to WWS, acting as its 5 representative, advocate and agent in dealings with federal, state and 6 local governments, and participating in fund-raising efforts. [Lorsch 7 Decl., Ex. B at 71, 78, 90-91]. The second ALJ concluded, however, 8 that those activities did not violate the AWA or demonstrate that 9 plaintiff “operated” WWS so as expose him to liability as an 10 “exhibitor” under the AWA. [Lorsch Decl., Ex. B at 79]. The second ALJ 11 also concluded that the actions of WWS could not be imputed to 12 plaintiff as a matter of law, and that plaintiff’s conduct during the 13 September 2003 exit interview, while “clearly impolite,” did not rise 14 to the level of “abuse” of APHIS officials in violation of the AWA 15 regulations. [Lorsch Decl., Ex. B at 78-81, 95]. Accordingly, on 16 appeal, the second ALJ dismissed the 2003 Action as to plaintiff. 17 [Lorsch Decl., Ex. B at 95-96]. 18 Nothing in the administrative decisions attached to plaintiff’s 19 declaration establishes or plausibly suggests that the decision to 20 prosecute the enforcement actions against plaintiff was “entirely 21 baseless and unjustified,” as plaintiff contends. Nor does the record 22 support plaintiff’s contention that there was a “complete failure” to 23 investigate him such that the decision to prosecute him involved no 24 discretion and was arbitrary. Even if defendants’ employees were 25 negligent in some respect in the manner in which they investigated 26 plaintiff, mere negligence in performing a discretionary function does 27 not preclude application of the discretionary function exception. See 28 General Dynamics Corp., 139 F.3d at 1282, 1286 (holding that the 18 1 discretionary function exception barred the plaintiff’s FTCA action 2 against a federal agency who negligently prepared an audit report 3 presented to prosecutors because the prosecutors were not prevented 4 “from gathering further information before they proceeded,” “were not 5 required to prosecute,” and “were not forced to do so,” so the 6 plaintiff’s “harm actually flow[ed] from” the prosecutors’ exercise of 7 discretion); Sabow v. United States, 93 F.3d 1445, 1452-1453 (9th Cir. 8 1996) 9 government investigators’ allegedly negligent failure to follow agency 10 investigative procedures under the discretionary function exception 11 where agency manuals contained “suggestive guidelines” rather than 12 “mandatory directives” for conducting investigations); see generally 13 Gasho, 39 F.3d at 1435 (“That the conduct of the [government] agents 14 may be tortious or motivated by something other than law enforcement 15 is beside the point, as governmental immunity is preserved ‘whether or 16 not the discretion involved be abused.’”) (quoting Johnson v. United 17 States, 949 F.2d 332, 340 (10th Cir. 1991)). 18 19 (affirming For all of the the dismissal reasons of FTCA described claims above, arising the out of discretionary function exception bars this action. 20 Intentional Torts Exception, 28 U.S.C. § 2860(h) 21 The intentional torts exception provides that the FTCA’s waiver 22 of sovereign immunity shall not apply to any claim “arising out of” 23 certain intentional torts. 24 intentional torts exception contains a “proviso” stating that the 25 waiver of sovereign immunity “shall apply” to any claim “arising out 26 of” 27 intentional torts committed by an “investigative or law enforcement 28 officers of the United States Government[.]” malicious prosecution, See 28 U.S.C. § 2680(h). abuse 19 of process, and However, the certain other 28 U.S.C. § 2680(h); 1 Millbrook v. United States, — U.S.—, 133 S. Ct. 1441, 1444 (2013) 2 (“The FTCA waives the United States' sovereign immunity for certain 3 intentional torts committed by law enforcement officers.”); Tekle v. 4 United States, 511 F.3d 839, 851 (9th Cir. 2007) (“The FTCA provides 5 an exception to the United States' liability for certain torts, 6 including assault, battery, and false arrest. When such a tort is 7 committed by a federal law enforcement officer, however, liability is 8 restored.) (citing 28 U.S.C. § 2680(h)). 9 For purposes of this “law enforcement proviso,” Millbrook, 133 S. 10 Ct. at 1443, the term “investigative or law enforcement officer” means 11 “any officer of the United States who is empowered by law to execute 12 searches, to seize evidence, or to make arrests for violations of 13 Federal law.” 28 U.S.C. § 2680(h). The waiver of sovereign immunity 14 effected 15 [investigative or] law enforcement officers that arise within the 16 scope of their employment, regardless of whether the officers are 17 engaged in investigative or law enforcement activity, or are executing 18 a search, seizing evidence, or making an arrest.” Millbrook, 133 S. 19 Ct. at 1446.2 by section 2680(h) “extends to acts or omissions of 20 The court is permitted to review allegations of the complaint and 21 evidence regarding the job duties and job descriptions of the federal 22 employees in question to determine if they are “investigative or law 23 enforcement officer[s]” under section 2680(h). See, e.g., Arnsberg v. 24 United States, 757 F.2d 971, 978 n.5 (9th Cir. 1985) (noting that 25 United States magistrate judges are empowered by statute to make 26 27 28 2 It is undisputed that the acts or omissions of defendants as alleged in the complaint occurred during the course of their employment. 20 1 arrests and therefore could be considered “‘investigative or law 2 enforcement officers’ for purposes of section 2680(h) when actually 3 apprehending a suspect”)(citing 18 U.S.C. § 3041); Gonzales v. United 4 States, 2013 WL 942363, at *5 (C.D. Cal. Mar. 11, 2013) (reviewing the 5 job 6 Detention Officers on the ICE website to determine whether they 7 qualified as “law enforcement officers” under section 2680(h), but 8 granting the defendant’s motion to dismiss on the alternative ground 9 that the complaint alleged no facts suggesting that any detention 10 officer or other “law enforcement officer” committed an intentional 11 tort); Sims v. United States, 2008 WL 4813827, at *5 (E.D. Cal. Oct. 12 29, 2008) (holding that “immigration officers” are “investigative or 13 law enforcement officers” under section 2680(h) because they are 14 empowered by statute “to make arrests, execute warrants and make 15 warrantless searches,” but that attorneys working for ICE are not 16 given those powers and therefore “are not such officers” under section 17 2680(h)). description of Immigration and Customs Enforcement (“ICE”) 18 In support of their motion, defendants presented the Juarez 19 Declaration and the declaration of Charlene Buckner (“Buckner Decl.”) 20 and attached to those declarations written job descriptions for the 21 positions 22 Carroll. Plaintiff objects that those job descriptions lack foundation 23 because the job requirements of APHIS’s VMOs and ACIs are dictated by 24 federal regulations rather than by the agency’s job postings, and 25 because the job descriptions are vague as to the time period to which 26 they apply. [Plaintiff’s Request for Evidentiary Ruling re Juarez 27 Decl. (“Pl’s Obj. re Juarez Decl.”) 18; Plaintiff’s Request for 28 Evidentiary Ruling re Buckner Decl. (“Pl’s Obj. re Buckner Decl.”) at held by Lorang, Gage, 21 Garland, Gibbens, Aguilar, and 1 8]. 2 in their entirety on the grounds that they are not based on personal 3 knowledge and consist merely of inadmissible hearsay. [Pl’s Obj. re 4 Juarez Decl. 6-7; Pl’s Obj. re Buckner Decl. 5-6]. Plaintiff also objects to the declarations of Juarez and Buckner 5 Defendants respond that plaintiff’s objections lack merit. 6 argue that Juarez has personal knowledge of the APHIS activities at 7 issue because she “advised upon and for a time, helped to administer” 8 those activities. Defendants also argue that Buckner’s declaration 9 “simply authenticates attorney Carroll’s job They description.” 10 [Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Motion to 11 Dismiss (“Defs’ Reply”) at 1 n.1]. 12 The Juarez and Buckner declarations are based on personal 13 knowledge. 14 position within a company or business.” Edwards v. Toys “R” Us, 527 F. 15 Supp. 2d 1197, 1201 (C.D. Cal. 2007) (citing In re Kaypro, 218 F.3d 16 1070, 1075 (9th Cir. 2000); Barthelemy v. Air Lines Pilots Ass’n, 897 17 F.2d 999, 1018 (9th Cir. 1990)). 18 USDA 19 Administrator of APHIS in administrative enforcement actions under the 20 AWA and supervised APHIS personnel who were conducting inspections and 21 investigations authorized under the AWA. [Juarez Decl. 2]. 22 sufficient to show Juarez’s personal knowledge of the facts presented 23 in her declaration. for “Personal knowledge can be inferred from a declarant’s over eleven years, Juarez has been employed with the during which she represented the That is 24 Although Buckner does not directly supervise attorneys, including 25 Carroll, she is the Director of Administration and Resource Management 26 of the USDA’s Office of General Counsel (“OGC”). 27 Buckner 28 actions within the OGC. [Buckner Decl. 2]. is responsible for coordinating 22 In that capacity, paperwork for personnel The Court can reasonably 1 infer that Buckner’s position within the OGC gives her personal 2 knowledge of what each position within the OGC would entail. 3 these reasons, plaintiff’s objections are overruled, and his request 4 to strike the Juarez and Buckner declarations and the attached job 5 descriptions is denied. 6 The complaint alleges that Lorang, Garland, and Gage For were 7 investigative or law enforcement officers and acted within the scope 8 of their employment during their inspections of WWS. 9 further alleges that the AWA and the AWA regulations permitted “badged 10 employees of the USDA” who were conducting inspections to, among other 11 things, enter all areas where regulated animals are housed, all other 12 animal areas, and the offices of the licensee; to examine and copy the 13 licensee’s records; to take pictures of the facility, property, or 14 animals; and to interview personnel or interested persons. [Complaint 15 4-5, 9]. 16 investigators went through the entire [WWS] facility. 17 were warrantless. 18 pictures and regularly took with them copies of the WWS records. 19 of the inspections were intrusive and long-lasting.” [Complaint 10]. 20 In his opposition to defendants’ motion to dismiss, plaintiff contends 21 that Lorang, Garland, and Gage are “APHIS officials who are empowered 22 to perform a wide variety of searches and even seize and destroy 23 animals,” and that APHIS officials “ha[ve] a great deal of authority 24 to conduct unannounced and non-consensual searches (for days at a 25 time, as here) and can even seize animals as part of the search.” 26 [Pl’s Opp. 18-19]. 27 28 The complaint The complaint also alleges that “[t]he inspectors and Defendants investigative or The searches The investigators and inspectors frequently took contend law that Lorang, enforcement 23 Garland, officers and Gage are because they have All not no 1 authority to execute searches or seize evidence, but rather are only 2 authorized to “conduct initial and ongoing licensing and subsequent 3 compliance inspections or investigations on behalf of APHIS, to report 4 their findings to their supervisors, and/or to assist or participate 5 in administrative enforcement proceedings as warranted by the findings 6 of the inspections or investigations.” [Defs’ Reply 2]. 7 Lorang, Garland, and Gage are the only employees alleged to be 8 investigative 9 [Complaint or 9]. law enforcement Therefore, their officers duties under and section authority 2680. as APHIS 10 officials (Lorang as an ACI, and Garland and Gage as VMOs) are the 11 only ones relevant to determining whether or not the “law enforcement 12 proviso” applies. 13 The AWA regulations state that each exhibitor under the AWA 14 “shall furnish to any APHIS official any information concerning the 15 business of the . . . exhibitor . . . 16 request in connection with the enforcement of the provisions of the 17 [AWA], the regulations and the standards in this subchapter” within a 18 “reasonable 19 information.” 9 C.F.R. § 2.125. 20 during business hours, allow APHIS officials”: 21 (1) To enter its place of business; 22 (2) To examine records required to be kept by the [AWA] and 23 the regulations in this part; 24 (3) To make copies of the records; 25 (4) To inspect and photograph the facilities, property and 26 animals, 27 enforce the provisions of the [AWA], the regulations and the 28 standards in this subchapter; and time as and the as may APHIS be which the APHIS official may specified in the request for Additionally, each exhibitor “shall, officials 24 consider necessary to 1 (5) To document, by the taking of photographs and other 2 means, conditions and areas of noncompliance. 3 9 C.F.R. § 2.126(a). The AWA regulations do not, however, delegate to 4 “APHIS officials” authority to search for animals that are reported 5 missing. 6 other law enforcement agencies with general law enforcement authority 7 . . . to enter his or her place of business” for the purpose of 8 seeking animals that have been reported missing. 9 (emphasis added). Instead, exhibitors “shall allow . . . police or officers of 9 C.F.R. § 2.128 Similarly, the AWA regulations authorize an APHIS 10 official to confiscate an animal only if, among other things, the 11 APHIS official “contacts a local police or other law officer to 12 accompany him to the premises . . . .” 13 added). 14 regulations 15 officers 16 enforcement authority,” nor are they “local police or other law 17 officer[s].” See Employers Ins. of Wausau v. United States, 815 F. 18 Supp. 19 provision that permitted the Environmental Protection Agency (“EPA”) 20 to “require” the United States Attorney General to “secure relief” to 21 abate certain imminent hazards “tended to confirm” that EPA officials 22 did not have such law enforcement power on their own). It of 255, may that reasonably APHIS other 256-257 be inferred officials law (N.D. from themselves enforcement Ill. 9 C.F.R. § 2.129(b)(emphasis 1993) the are agencies (holding text not with that of these “police general a or law statutory 23 The written job descriptions for VMOs and ACIs provide additional 24 details about their job duties and authority, and nothing in those job 25 descriptions supports the conclusion that they are investigative or 26 law enforcement officers within the meaning of section 2680(h). 27 VMOs working in APHIS’s Animal Care Program, Gage’s and Garland’s job 28 descriptions include industry and inspector education, evaluation of 25 As 1 regulations 2 liaison with industry and with other regulatory agencies at both the 3 regional and national levels, and consultation on enforcement actions 4 related to this area of expertise. [Juarez Decl. Attachment 3; Defs’ 5 Mot. 34]. 6 and policies, inspection of problematic facilities, As an ACI working in APHIS’s Animal Care Program, Lorang has 7 authority 8 noncompliance with the AWA and monitoring corrective action. [Juarez 9 Decl. Attachment 4; Defs’ Mot. 40]. ACI inspections include observing 10 animals for signs of poor health, abuse, or inadequate care; examining 11 the adequacy of the facility in a number of respects, including size, 12 design, construction, and sanitation; gathering information on the 13 animals’ diets and inspecting food preparation facilities; examining 14 facility records; and assessing the adequacy of veterinary care. 15 [Juarez Decl. Attachment 4; Defs’ Mot. 40-41]. that includes formally documenting compliance and 16 When they have reason to believe a licensee is potentially in 17 violation of the AWA, Animal Care Program employees, including VMOs 18 and ACIs, may submit a request for investigation to IES, which may 19 conduct its own investigation and make an enforcement recommendation. 20 [Juarez Decl. 9-10]. 21 the IES division, but rather of the Animal Care Program. 22 Nothing in the Lorang, Garland, and Gage are not employees of record suggests that VMOs and ACIs are 23 investigative or law enforcement officers under section 24 They do not have the authority to seize evidence or to make arrests 25 for violations of Federal law. 26 execute “searches.” The only evidence to the contrary plaintiff 27 identifies is the definition of “search inspections” in the Exhibitor 28 Inspection Guide, which defines the word “search” as an “investigation 2680(h). Moreover, they are not authorized to 26 1 to 2 unlicensed person.” [Pl’s Opp. 20]. However, as defendants point out, 3 the Exhibitor Inspection Guide also states that it “does not supersede 4 the 5 Standards, 6 inspector’s professional judgment.” [Defs’ Reply 2]. 7 administrative investigation that requires a governmental agency to 8 make fact-finding determinations in the discharge of its statutory 9 duties does not warrant the applicability of § 2680(h). See Wausau, 10 815 F. Supp. at 257 (“Surely the mere need for an agency to learn the 11 facts necessary to exercise the statutory responsibilities with which 12 that agency is charged cannot serve as a litmus test for labeling its 13 personnel ‘investigative officers’ . . . .”); see also EEOC v. First 14 Nat’l Bank of Jackson, 614 F.2d 1004, 1007-1008 (5th Cir. 1980) 15 (holding that agents of the Equal Employment Opportunity Commission 16 were not law enforcement or investigative officers, even though they 17 were statutorily empowered to “at all reasonable times have access to, 18 for the purpose of examination, and the right to copy any evidence of 19 any person being investigated or proceeded against that relates to 20 unlawful employment practices . . . .”). 21 regulations, and the job descriptions indicate that VMOs and ACIs in 22 APHIS’s Animal Care Program are not investigative or law enforcement 23 officers. determine Animal if a Welfare Animal regulated Act, Care the activity Animal policies, is being Welfare standard Act conducted by Regulations procedures, or an and the Further, an Accordingly, the AWA, AWA 24 No court has decided whether VMOs or ACIs in APHIS’s Animal Care 25 Program can be considered investigative or law enforcement officers 26 within the meaning of section 2680(h). However, case law cited by the 27 parties in 28 Amendment search support the conclusion that APHIS officials are not involving APHIS inspections 27 the context of a Fourth 1 “investigative or law enforcement officers.” 2 held that a warrantless APHIS inspection pursuant to the AWA does not 3 violate the Fourth Amendment because it fits within the exception to 4 the 5 industries. Lesser v. Epsy, 34 F.3d 1301, 1306 (7th Cir. 1994). warrant 6 Even if requirement Lorang, for inspections Garland, or Gage The Seventh Circuit has of “closely could be regulated” considered an 7 investigative or law enforcement officer within the meaning of section 8 2680(h), the law enforcement proviso would not confer subject matter 9 jurisdiction over this action because application of the discretionary 10 function exception “trumps” application of the intentional torts 11 exception. The Ninth Circuit has concluded that claims covered by the 12 law 13 performance of discretionary functions within the meaning of section 14 2680(a). See Gasho, 39 F.3d at 1435-1436 (holding that the intentional 15 tort remedy provided by the FTCA’s law enforcement proviso did not 16 apply to conduct that the government had shown was exempt from 17 liability under the “Customs exception” in section 2680(c) or the 18 discretionary function exception in section 2680(h)) (citing Wright v. 19 United States, 719 F.2d 1032, 1035-1036 (9th Cir. 1983) (holding that 20 the law enforcement proviso in section 2680(h) applied because the 21 government failed to demonstrate that the conduct at issue was not 22 excepted from liability under section 2680(c), which would have barred 23 the 24 1983)(holding that the plaintiff could not pursue an intentional tort 25 claim 26 tortious conduct that was protected by the “discretionary function” 27 exception in section 2680(a)), cert. denied, 465 U.S. 1100 (1984)). 28 Since an intentional tort committed by an “investigative or law enforcement claim); under proviso Gray the v. law are Bell, barred 712 enforcement 28 if F.2d they 490, proviso in are based 507–508 section on (D.C. 2680(h) the Cir. for 1 enforcement” officer cannot be the basis for an FTCA claim against the 2 United States if the officer’s conduct involved a discretionary 3 function, 4 malicious prosecution or abuse of process even if Lorang, Garland, or 5 Gage were investigative or law enforcement officers. section 2680(a) exempts defendants from liability for 6 Because plaintiff’s IIED and NIED claims “arise out of” the same 7 facts as his malicious prosecution and abuse of process claims, those 8 claims are also barred. 9 whether a claim arises out of one of the enumerated torts” in section 10 2680(h), courts “look beyond a plaintiff's classification of the cause 11 of action to examine whether the conduct upon which the claim is based 12 constitutes one of the torts listed in § 2680(h). [Courts] focus 13 [their] § 2680(h) inquiry on whether conduct that constitutes an 14 enumerated tort is ‘essential’ to a plaintiff’s claim.” Sabow, 93 F.3d 15 at 1456(citing Mt. Homes, Inc. v. United States, 912 F.2d 352, 356 16 (9th Cir. 1990); Thomas–Lazear v. Fed. Bureau of Investigation, 851 17 F.2d 1202, 1207 (9th Cir. 1988)). See 28 U.S.C. § 2680(h). “In determining 18 In this case, all of plaintiff’s alleged harm stems from the 19 decisions to commence and prosecute the enforcement actions against 20 him until their termination. [See Complaint 14-16, 18-15; Transcript 21 13-14]. Therefore, plaintiff’s IIED claims and NIED claims are barred 22 for the same reasons as his malicious prosecution and abuse of process 23 claims. See Mt. Homes, 912 F.2d at 356 (holding that the plaintiff 24 alleged 25 misrepresentation because “the essential element of Mt. Homes' claim 26 is that [the government] gave it inaccurate information”); Snow-Erlin 27 v. United States, 470 F.3d 804, 808 (9th Cir. 2006) (“If the gravamen 28 of Plaintiff’s complaint is a claim for an excluded tort under § conduct that falls within 29 the excepted tort of 1 2680(h), then the claim is barred.”). 2 Conclusion 3 4 For the reasons described above, the Court lacks subject matter jurisdiction over this action. 5 The remaining issue is whether to allow plaintiff leave to amend. 6 Plaintiff contends that he should be allowed to amend his complaint so 7 that he may undertake discovery “to define more clearly the scope of” 8 APHIS employees’ authority to search, seize, and arrest within the 9 meaning of section 2680(h). [Pl’s Opp. 9]. Plaintiff argues that 10 allowing him to amend in this manner is appropriate because there is 11 authority for the proposition that section “2680(h) trumps [section] 12 2680(a). 13 enforcement officer] conduct an intentional tort[], the discretionary 14 function [exception] does not protect him.” [Transcript 23-24]. 15 /// 16 /// 17 /// In other words, if you have an [investigative or law 18 19 20 21 22 23 24 25 26 27 28 30 1 For the reasons described above, under Ninth Circuit law, the law 2 enforcement proviso in section 2680(h) does not “trump” application of 3 the discretionary function exception in section 2680(a). 4 application of the discretionary function exception means that the law 5 enforcement proviso does not confer subject matter jurisdiction over 6 plaintiff’s claims, irrespective of whether the APHIS employees in 7 this case are investigative or law enforcement officers. Therefore, 8 allowing plaintiff to amend his complaint would be futile. See Reddy 9 v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990) ("It is not 10 an abuse of discretion to deny leave to amend when any proposed 11 amendment would be futile."); see also Abagninin v. AMVAC Chem. Corp., 12 545 F.3d 733, 742 (9th Cir. 2008) ("Leave to amend may be denied if a 13 court determines that ‘allegation of other facts consistent with the 14 challenged pleading could not possibly cure the deficiency.'")(quoting 15 Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 16 (9th Cir. 1986)). Instead, 17 18 19 20 October 29, 2015 Andrew J. Wistrich United States Magistrate Judge 21 22 23 24 25 26 27 28 31
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