Filed: Apr. 01, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS March 31, 2003 FOR THE FIFTH CIRCUIT _ Charles R. Fulbruge III Clerk No. 02-10013 _ MAN KHAC NGUYEN, Plaintiff-Appellant, versus UNITED STATES OF AMERICA, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Texas USDC No. 3:00-CV-528-R _ Before REAVLEY, JOLLY, and JONES, Circuit Judges. PER CURIAM:* Man Khac Nguyen (Nguyen) appeals the district court’s dismissa
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS March 31, 2003 FOR THE FIFTH CIRCUIT _ Charles R. Fulbruge III Clerk No. 02-10013 _ MAN KHAC NGUYEN, Plaintiff-Appellant, versus UNITED STATES OF AMERICA, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Texas USDC No. 3:00-CV-528-R _ Before REAVLEY, JOLLY, and JONES, Circuit Judges. PER CURIAM:* Man Khac Nguyen (Nguyen) appeals the district court’s dismissal..
More
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 31, 2003
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 02-10013
_____________________
MAN KHAC NGUYEN,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
__________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CV-528-R
_________________________________________________________________
Before REAVLEY, JOLLY, and JONES, Circuit Judges.
PER CURIAM:*
Man Khac Nguyen (Nguyen) appeals the district court’s
dismissal of his Federal Tort Claims Act (FTCA) negligent
investigation and false imprisonment claims against the Immigration
and Naturalization Service (INS). Because under the FTCA the
United States has not waived its sovereign immunity with respect to
the actions of the INS in this case, we AFFIRM.
It is undisputed that Nguyen satisfied the statutory
requirements of 8 U.S.C. § 1432(a)(repealed) for derivative
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
citizenship when he entered the United States in 1993: at the time
of his legal entry he was unmarried, his father had died before he
was eighteen and his mother was a United States citizen. However,
Nguyen did not claim derivative citizenship, apparently because he
was unaware that he qualified.
In 1995 and 1996, Nguyen was convicted of a number of felonies
that under INS regulations are considered aggravated felonies.
While in jail, Nguyen was identified by an INS agent as a possible
deportable alien. Nguyen affirmed his deportability when he, as a
convicted felon, told the INS officer that he was born in Vietnam,
was a citizen of Vietnam, and had permanent resident alien status.
Based on the information furnished by Nguyen, the INS officer began
a file on Nguyen. As part of the process, he requested Nguyen’s “A
file” which contained documents relating to Nguyen’s entry into the
United States. However, Nguyen’s “A file” was unavailable because
of a building closure where the file was located.
After Nguyen served his sentence, the INS instituted
deportation proceedings against him. At the deportation
proceedings, Nguyen was represented by counsel and was assisted by
an interpreter. At no time did he make a claim of derivative
citizenship or challenge the allegations against him. At the
conclusion of the hearings, the immigration judge ordered
deportation. The decision was based on ample evidence undisputed
by Nguyen or his attorney. That decision was not appealed.
2
Pending deportation, Nguyen was held in INS custody. Approximately
fifteen months later, a new attorney made an appearance on behalf
of Nguyen. At last, the new attorney asserted a claim of
derivative citizenship for Nguyen. The INS released Nguyen ten
days later. Nguyen thereafter applied for and obtained a
certificate of citizenship.
In March 2000, Nguyen brought suit under the FTCA seeking
damages. He alleged that the INS agents were negligent in not
investigating properly and in not recognizing that he was a
derivative citizen and that he was unlawfully detained. After a
two-day bench trial, the district court dismissed the case with
prejudice for lack of jurisdiction.
This court reviews a district court’s finding that it lacked
jurisdiction de novo. Foster v. Townsley, 243 F.3d 210, 213 (5th
Cir. 2001). Although the district court found that it lacked
jurisdiction on several grounds, we address and affirm only the
sovereign immunity ground.
Congress has waived the sovereign immunity of the United
States for particular kinds of tort suits under the FTCA. That
waiver, however, is subject to several express limitations, which
means that in those express situations the federal courts have no
jurisdiction over the United States in FTCA cases. One of these
limitations is the discretionary function exception, which provides
that courts have no jurisdiction over claims against the United
3
States “based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the part of
a federal agency or an employee of the Government, whether or not
the discretion involved be abused.” 28 U.S.C. § 2680(a). Decisions
to investigate, how to investigate and whether to prosecute
generally fall within this exception. See Sutton v. United States,
819 F.2d 1289, 1293 (5th Cir. 1987); Smith v. United States,
375
F.2d 243, 247-48 (5th Cir. 1967). However, the discretionary
function exception does not necessarily shield the government from
liability for intentional torts, such as false imprisonment,
perpetrated by its investigative or law enforcement officers. See
28 U.S.C. § 2680(h). This court has recognized that §§ 2860 (a)
and (h) exist in tension with each other and that their purposes
must be harmonized in each individual case, so as to give each
provision meaning without abrogating either provision. Sutton,
819
F.2d 1289, 1295. In this connection, this court has not “hesitated
to conclude that [an] action does not fall within the discretionary
function of § 2680(a) when governmental agents exceed the scope of
their authority as designated by statute or the Constitution.”
Sutton,
819 F.2d 1289, 1293.
In harmonizing the two provisions in this case, it is
significant that the INS officers did not commit a constitutional
violation nor did they engage in any conduct that could be
described as in bad faith. No regulation or statute prevented the
4
INS agents from pursuing deportation proceedings against Nguyen
based on the information available to them. Regulations expressly
allow INS agents to make arrests if the agent “has reason to
believe that the person to be arrested...is an alien illegally in
the United States.” 8 C.F.R. § 1287.8(c)(2)(i). The INS agents in
this case had sufficient reason to believe, based on repeated
admissions, explicit and implicit, by both Nguyen and his attorney,
that Nguyen was an alien. Consequently, the detention is not of a
character for which a court should refer to § 2680(h) for an
exception to the discretionary function. With respect to the claim
of negligence in investigating, the only basis asserted is failing
to obtain Nguyen’s “A file” and failing to otherwise determine from
various documents that Nguyen was entitled to derivative
citizenship. Because there is no allegation or evidence of
intentional misconduct, this is essentially a claim that the INS
officers failed to adequately perform a discretionary duty, which
falls squarely within the discretionary function exception.
Because the INS agents in this case did not exceed their authority
either in investigating the case or in detaining Nguyen, their
actions are protected by the discretionary function exception of
the FTCA.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
5
