Revised March 8, 2001
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-50039
RAMON J. JEANMARIE, Individually and
as Parent and Next Friend of T. A. Jeanmarie
and R. J. Jeanmarie II, Minors; SHEILA A. JEANMARIE,
Plaintiffs-Appellants,
VERSUS
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
February 15, 2001
Before POLITZ, DeMOSS, and STEWART, Circuit Judges.
DeMOSS, Circuit Judge:
Ramon and Sheila Jeanmarie (“the Jeanmaries”) appeal from an
order entered by the district court dismissing their first amended
complaint, which they had filed pursuant to the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq., against the
United States. Their complaint sought recovery for alleged abuses
of Mr. Jeanmarie (“Jeanmarie”) by U.S. Customs agents incident to
a search of the Jeanmaries’ vehicle. For the following reasons, we
affirm the district court’s order of dismissal.
BACKGROUND
The facts, as alleged by the Jeanmaries, are as follows. On
or about June 20, 1996, Jeanmarie returned from a brief trip into
Mexico and re-entered the United States via one of the ports of
entry in El Paso, Texas. Jeanmarie and the vehicle in which he was
traveling were detained for inspection by the United States Customs
Service. During the course of the inspection, Jeanmarie was asked
to open the trunk of his vehicle, but because he apparently only
had a valet key with him, he was unable to access the trunk
himself. He authorized the Customs agents to forcibly open the
trunk of his car.
Also during the course of the inspection, Jeanmarie twice
requested permission to use the restroom, citing an urgent and
special need to do so caused by a recent surgical procedure that
affected his kidneys and bladder. The Customs agents temporarily
denied his requests while the inspection continued. Nonetheless,
and contrary to instructions, Jeanmarie proceeded to leave the
designated area in search of the restroom. Jeanmarie was
confronted by another Customs agent and alleges that the agent
forcibly restrained him and shoved him against a counter causing
numerous injuries. Specifically, Jeanmarie alleges that the
Customs agents grabbed him and “jerked his arms behind his back,
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and forced [his] abdomen into a counter.” Jeanmarie also alleges
that one of the officers struck him about the face and neck.
In their original complaint, the Jeanmaries alleged that the
United States was responsible for the actions of its employees and
that it was responsible for negligently training and supervising
its employees. Jeanmarie sought money damages, and his wife and
children sought damages for loss of consortium and support.
The United States filed a motion to dismiss the complaint
arguing that despite the general waiver of sovereign immunity found
in the FTCA, the United States was nonetheless entitled to immunity
by virtue of two applicable exceptions to the FTCA’s waiver of
immunity. The government contended that the discretionary function
and the customs-duty exceptions entitled it to immunity. The
Jeanmaries sought and were granted leave to amend their complaint
to include claims of assault and battery, false arrest, and false
imprisonment, and the government filed a second motion to dismiss.
After the Jeanmaries responded to the motions to dismiss, the
district court granted those motions and dismissed the complaint.
In its order of dismissal, the district court determined that
the customs-duty exception to the FTCA, 28 U.S.C. § 2680(c), barred
“any claim arising out of . . . the detention of goods,” and that
based upon the Supreme Court’s decision in Kosak v. United States,
104 S. Ct. 1519, 1524-25 (1984), the customs-duty exception also
included claims for injuries “associated in any way with the
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detention of goods.” The district court concluded that the
Jeanmaries’ claims of assault and battery and of false arrest and
imprisonment were barred by the application of a decision from the
Western District of Texas holding that the customs-duty exception
barred claims for emotional distress and excessive force arising
from a customs inspection. See Rivera v. United States, 907
F. Supp. 1027, 1030 (W.D. Tex. 1995), aff’d, No. 96-50117 (5th Cir.
November 14, 1996)(per curiam)(unpublished). The district court
also concluded that the Jeanmaries’ claims of negligent supervision
and training were barred by the discretionary function exception,
28 U.S.C. § 2680(a), as they involved elements of judgment and
discretion and public policy.
The Jeanmaries filed numerous motions for reconsideration of
the district court’s order of dismissal, all of which were denied,
and they have now timely appealed.
DISCUSSION
Generally, the United States enjoys sovereign immunity from
suit unless it has specifically waived immunity. See Truman v.
United States, 26 F.3d 592, 594 (5th Cir. 1994). The FTCA provides
for a waiver of the United States’ immunity from suit for those
claims regarding “injury or loss of property, or personal injury or
death arising or resulting from the negligent or wrongful act or
omission of any employee of the Government while acting within the
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scope of his office or employment . . . .” 28 U.S.C. § 2679(b)(1).
Of course, the FTCA contains numerous exceptions to the general
waiver of immunity, among them the customs-duty exception found in
§ 2680(c), and the discretionary function exception found in
§ 2680(a), upon both of which the district court based its
dismissal of the Jeanmaries’ claims.
We review a district court’s grant of a motion to dismiss
based on exceptions to the FTCA de novo. See Leleux v. United
States, 178 F.3d 750, 754 (5th Cir. 1999). A district court’s
dismissal based on these exceptions will be affirmed if it appears
certain that the plaintiffs can prove no set of facts in support of
their claims which would entitle them to relief. See id. In our
review, we accept all of the nonmovant’s well-pleaded factual
allegations as true, but we may not rely upon conclusional
allegations or legal conclusions that are disguised as factual
allegations. See Blackburn v. City of Marshall, 42 F.3d 925, 931
(5th Cir. 1995).
We pause here to note at the outset that the Jeanmaries have
not argued on appeal that the district court erred in dismissing
their claims of negligent training and supervision based upon the
discretionary function exception to the FTCA’s waiver of sovereign
immunity. Accordingly, we deem these matters waived. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (even parties
proceeding pro se must brief an issue in order to preserve it for
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appeal).
With respect to the Jeanmaries’ claims of assault and battery,
and of false arrest and imprisonment, they claim that the district
court’s dismissal under § 2680(c), the customs-duty exception, was
erroneous. Section 2680(c) specifically provides that the FTCA’s
waiver of immunity does not apply to:
Any claim arising in respect of the assessment
or collection of any tax or customs duty, or
the detention of any goods or merchandise by
any officer of customs or excise or any other
law-enforcement officer . . . .
28 U.S.C. § 2680(c).
According to the Jeanmaries, § 2680(h) provides an “exception
to the [§ 2680(c)] exception” to the FTCA’s waiver of immunity
which the district court ignored. They note that § 2680 was
amended and subsection (h) was enacted to allow for the waiver of
sovereign immunity in order to provide a remedy against the United
States for those intentional torts committed by federal law
enforcement officials. See S. Rep. No. 93-588 (1974), reprinted in
1974 U.S.C.C.A.N. 2789, 2791. Specifically, § 2680(h) provides
that the FTCA’s waiver of immunity does not apply to:
Any claim arising out of assault, battery,
false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference
with contract rights: Provided, That, with
regard to acts or omissions of investigative
or law enforcement officers of the United
States Government, the provisions of this
chapter and section 1346(b) of this title
[i.e., the waiver of immunity] shall apply to
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any claim arising, on or after the date of the
enactment of this proviso, out of assault,
battery, false imprisonment, false arrest,
abuse of process, or malicious prosecution.
For the purpose of this subsection,
"investigative 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). The Jeanmaries rely on the portion of
§ 2680(h) which specifically provides that the waiver of immunity
applies to their claims of assault and battery and of false arrest
and imprisonment against federal law enforcement officers.
The district court, in dismissing the Jeanmaries’ claims,
relied upon the decision of one of its sister courts within the
Western District of Texas. The district court noted that in Rivera
v. United States, 907 F. Supp. 1027, 1030 (W.D. Tex. 1995), aff’d,
No. 96-50117 (5th Cir. November 14, 1996)(per curiam)(unpublished),
its sister court concluded that notwithstanding § 2680(h), the
customs-duty exception barred intentional tort claims for emotional
distress and excessive force arising from a customs inspection. In
Rivera, the plaintiffs filed an FTCA claim against Customs agents
who restrained Mrs. Rivera with a “wrist/arm lock” during the
inspection of her vehicle at a port of entry, and the district
court concluded that the actions complained of occurred during the
performance of the Customs agent’s official duties and were thus
covered by the customs-duty exception in § 2680(c). In affirming
the district court, we noted in our unpublished opinion that:
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The temporary seizure of Mrs. Rivera was
carried out in the course and as part of the
lawful detention and search by U.S. Customs
officials during a customs inspection of a
vehicle at a border entry point. Claims
against the government for [the officer’s]
actions, therefore, fall squarely within one
of the enumerated exceptions to the
government’s waiver of sovereign immunity,
specifically, the “customs exception” to the
Federal Tort Claims Act. 28 U.S.C. § 2680(c).
Rivera v. United States, No. 96-50117 at 2 (5th Cir. November 14,
1996)(per curiam) (unpublished).
The Rivera district court did note additionally that a claim
of an intentional tort related to a customs arrest may not be
covered by § 2680(c), as that section deals only with the detention
of goods, not persons. See Rivera, 907 F. Supp. at 1030 (citing
Gasho v. United States, 39 F.3d 1420 (9th Cir. 1994)). The Rivera
district court reasoned that an intentional-tort claim involving
the infliction of emotional distress during an arrest following a
search by a Customs agent did not fall within § 2680(c) because
such a tort was incident, not to a detention of goods, but to the
detention of a person after the search for and detention of goods
was completed. See Rivera, 907 F. Supp. at 1030.
However, the district court also noted that in Capozzoli v.
Tracey, 663 F.2d 654, 658 (5th Cir. 1981), a case wherein an IRS
agent entered the plaintiff’s property without notice and took
pictures of the home while the plaintiff was in nightclothes and
was embarrassed, we held that the customs-duty exception’s phrase
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“in respect of the assessment or collection of any tax” is broad
enough to encompass the activities of a Customs agent which are
even “remotely related to his or her official duties.” In
Capozzoli, we noted that in enacting § 2680(c), Congress intended
to insulate IRS and Customs agents from tort liability stemming
from any of their revenue-raising activities. Capozzoli, 663 F.2d
at 657.
Relying on both Rivera and our holding in Capozzoli, the
district court in this case concluded that § 2680(c)’s exception
has been broadly construed and that the actions complained of by
the Jeanmaries, like those in Rivera, occurred during the
performance of a Customs agent’s official duties and arose out of
the detention of goods. Since the Jeanmaries’ claims for assault
and battery and for false arrest and imprisonment arose out of and
were associated in some way with the detention of goods, the
district court concluded that those claims were barred by §
2680(c), the customs-duty exception.
The Jeanmaries contend that Rivera is not applicable because
in that case, the plaintiff resisted and refused to obey repeated
requests to step away from her car, and in this case, Jeanmarie
complied immediately with the agents’ requests. The record belies
this assertion in that Jeanmarie concedes that he specifically
disregarded the agents’ directive that he not remove himself from
the scene by walking away to find a restroom. Alternatively, the
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Jeanmaries rely on the language in § 2680(h) stating that the
FTCA’s waiver of immunity applies to claims of assault, battery,
and false arrest and imprisonment. Again, we disagree with the
Jeanmaries and instead agree with the reasoning of the Ninth
Circuit in Gasho that, notwithstanding the fact that intentional
tort claims arising out of arrests are not barred by § 2680(c), and
are in fact permitted by § 2680(h), such claims are barred by the
customs-duty exception if the alleged torts arose from the
inspection, seizure, or detention of goods by a Customs agent
because such claims involve conduct covered by § 2680(c). See
Gasho, 39 F.3d at 1433-34; see also Capozzoli, 663 F.2d at 658
(actions even remotely related to a Customs agent’s official duties
are covered by the exception in § 2680(c)).
Statutes waiving sovereign immunity of the United States are
to be “construed strictly in favor of the sovereign.” McMahon v.
United States, 72 S. Ct. 17, 19 (1951). We agree with the Ninth
Circuit that “[w]hen strictly construed in light of § 2680(c), the
waiver of immunity in § 2680(h) applies only to tortious conduct
not involving the seizure and detention of goods by Customs.”
Gasho, 39 F.3d at 1433-34. Therefore, we decline to apply
§ 2680(h) to override § 2680(c)’s exception to the FTCA’s general
waiver of sovereign immunity in situations where, as here, the
alleged intentional tort is committed incident to the performance
of an agent’s duties under § 2680(c). In this case, we are
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convinced that the actions complained of by the Jeanmaries were
related to the Customs agents’ official duties in inspecting and
detaining goods and that § 2680(c) is broad enough to cover those
actions.
The Jeanmaries have asserted several additional bases for
relief from the district court’s order, including, among other
things, a contention that the doctrine of sovereign immunity is
unconstitutional because it prohibits them from seeking redress
under the First Amendment for the Customs agents’ use of excessive
force and an assertion for the first time on appeal that they have
asserted a legitimate claim for relief under Bivens v. Six Unknown
Fed. Narcotics Agents, 91 S. Ct. 1999 (1971). We decline to
discuss the Jeanmaries’ additional arguments as we find each devoid
of merit.
CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing on the issues in this appeal, and for
the reasons set forth above, we conclude that the Jeanmaries’
various claims are barred by the discretionary function and
customs-duty exceptions to the FTCA, and we AFFIRM the district
court’s order of dismissal.
AFFIRMED.
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