Do Federal Courts Have Jurisdiction over Civil Actions under the Federal Tort Claims Act by Immigrants Alleging Wrongful Removal from the United States?

The Federal Tort Claims Act

The Federal Tort Claims Act (FTCA) allows those who have suffered an injury, or whose property is damaged, to file a claim with the federal government for reimbursement for that injury or damage. Under 28 U.S.C. § 2674, the federal government recognizes its liability for the negligent or wrongful acts or omissions of its employees acting within the scope of their official duties. The FTCA positions the United States—not the individual employee—as the defendant, and transfers all liability to the federal government. Therefore, the United States is liable the same way that a private party would be liable in a normal civil action.

The Issue

Two cases, each with similar factual backgrounds, help illustrate the question at hand. In both cases, the plaintiffs—Lopez Silva and Claudio Anaya Arce—were erroneously deported and subsequently sued the federal government under the FTCA. In Silva’s case, he was a Mexican citizen who resided in the United States as a lawful permanent resident since 1992. After he was convicted of two criminal offenses in Minnesota, the Department of Homeland Security commenced removal proceedings against him in 2012. Silva appealed to the Board of Immigration Appeals, which issued a stay of Silva’s removal while his appeal was pending. However, in July 2013, DHS mistakenly removed Silva to Mexico before the BIA heard his appeal. DHS subsequently returned Silva to the United States several months later. An immigration judge subsequently granted Silva’s application for cancellation of his removal—allowing him to lawfully remain in the country.

In Arce’s case, he was apprehended by Customs and Border Patrol and detained in Adelanto, California in April 2014. He expressed a fear of harm if he was removed to Mexico, but an asylum officer determined that he had not demonstrated a reasonable fear of persecution or torture. This decision was affirmed by an immigration judge on February 4, 2015, and the DHS began the process of removing him to Mexico. However, on February 6, Arce filed an emergency petition for review and a motion for a stay of removal with the Ninth Circuit. The court immediately issued a temporary stay of removal, but Arce was removed to Mexico later that day—despite the fact that Arce’s counsel put DHS on notice of the stay. Arce remained in Mexico until February 20, when he was returned to the United States.

Both Silva and Arce sued the federal government for harm arising from their unlawful removal. The District Courts of Minnesota and the Central District of California dismissed both cases on the ground that Section 242(g) of the Immigration and Nationality Act deprived them of jurisdiction. Specifically, they held Section 242(g), which applies to agency decisions or actions to “commence proceedings, adjudicate cases, or execute removal orders” divested them of subject-matter jurisdiction. Silva and Arce appealed to the Eighth and Ninth Circuits, respectively.

The Circuit Split

Both cases raise the question: do federal courts have jurisdiction over civil actions brought under the FTCA by immigrants alleging wrongful removal from the United States?

In Silva v. United States (2017), the Eighth Circuit affirmed the district court’s decision in a 2-1 ruling that it lacked jurisdiction under the FTCA. The court held that Silva’s claims were directly connected to the execution of the removal order, and that Section 242(g) applied to bar the plaintiff’s civil action.

Judge Kelly dissented, however, and argued that the United States Supreme Court rejected the assumption that Section 242(g) covered that kind of deportation claim in Reno v. American-Arab Anti-Discrimination Committee (1999). She would have held that the mandatory automatic stay in Silva’s case “suspended the source of authority for the agency to act” on the removal order and therefore “temporarily divested the order of enforceability.” Accordingly, Silva’s claims did not arise “from the government’s decision or action to execute a removal order,” because a valid removal order did not exist at the time he was removed. She noted that the Third Circuit had held in Garcia v. Attorney General (2009), that Section 242(g) doesn’t apply when the petitioner is challenging the government’s authority to commence removal proceedings, not the discretionary decision to commence proceedings.

The Ninth Circuit charted a different course than the Eighth Circuit, and instead embrace the position that Judge Kelly articulated in dissent. In Arce v. United States (2018), the court rejected the government’s argument that Arce’s claims were foreclosed by Section 242(g) because they arose from the Attorney General’s decision or action to execute the removal order. Citing Judge Kelly’s dissent in Silva, the court held that the statute does not “sweep as broadly as the government contends.” Arce, it found, was not attacking the removal itself but the authority of the Attorney General to execute the removal order in light of the stay of removal that the court had issued.

Looking Forward

Though these cases have mostly flown under the radar—especially given the recency of the Ninth Circuit’s opinion—they raise important ramifications for those who wish to bring claims under the FTCA for wrongful removal. In many ways, this split is a perfect embodiment of the reason that the Supreme Court wishes to avoid circuit splits in the first place. In some parts of the country, the federal government is financially liable for actions that it is not liable for in other parts of the country, raising the need for the Supreme Court to resolve the split.

That’s Not My Job: Is the Determination of ‘Scope of Employment’ in the FTCA a Merits Issue or a Jurisdiction Issue?

Background

The Federal Torts Claim Act (FTCA) grants federal courts jurisdiction to hear claims against the government for torts committed by government employees acting within the scope of their employment. 28 U.S.C. § 1346(b)(1). The scope of employment issue is dispositive of both the federal court’s subject matter jurisdiction and the merits of the underlying tort claim. Thus, when a defendant wants to raise the defense that the employee was not acting within the scope of their employment, is it proper that they file a motion to dismiss for lack of subject matter jurisdiction (Rule 12(b)(1)), or a motion to dismiss on the merits (Rule 12(b)(6) or Rule 56)? The implications are huge in determining the plaintiff’s likelihood of success.

To survive a defendant’s 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the burden of proving subject matter jurisdiction (here specifically, the burden of proving that the defendant was acting within the scope of their employment) lies with the plaintiff. This can be a particularly difficult burden given that the discovery process has not begun yet at this stage. Moreover, trial courts have the discretion to independently evaluate factual issues for purposes of determining subject matter jurisdiction. On the other hand, for a plaintiff to survive a 12(b)(6) motion for failure to state a claim (a merit-based motion), the plaintiff’s pleaded facts are assumed to be true, and dismissal is only proper if the alleged facts fail to lay out a valid claim. The plaintiff then gets the benefit of the discovery process, allowing them to acquire otherwise private evidence of those facts, before having to prove them to the court.

The Split

The Fourth, Fifth, Ninth, and Eleventh Circuits all have held that when such a factual determination is inextricably tied to both the question of federal subject matter jurisdiction and the merits of the underlying case, the federal trial court is to assume jurisdiction, in order to evaluate the factual issue at the merits stage. The Fifth Circuit provided cogent reasoning for this stance:

No purpose is served by indirectly arguing the merits in the context of federal jurisdiction. Judicial economy is best promoted when the existence of a federal right is directly reached and, where no claim is found to exist, the case is dismissed on the merits. This refusal to treat indirect attacks on the merits as Rule 12(b)(1) motions provides, moreover, a greater level of protection to the plaintiff who in truth is facing a challenge to the validity of his claim: the defendant is forced to proceed under Rule 12(b)(6) . . . or Rule 56 . . . both of which place greater restrictions on the district court’s discretion. Montez v. Dep’t of the Navy (5th Cir. 2004) (citing Williamson v. Tucker (5th Cir. 1981)).

The Second and Third Circuits have held that the proper way to raise the dispute as to scope of employment is at the outset—in a rule 12(b)(1) motion—citing structural implications in the FTCA as well as procedural ways to ameliorate the concerns cited above by the Fifth Circuit. The Third Circuit reasoned:

The scope-of-employment requirement of the FTCA appears in the same sentence as Congress’s grant of jurisdiction. See 28 U.S.C. § 1346(b)(1). “[J]urisdiction” in § 1346(b)(1) suggests that each clause of that provision represents a limitation on Congress’s waiver of sovereign immunity and thus a limitation on federal courts’ jurisdiction.

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[W] here jurisdiction is intertwined with the merits of an FTCA claim, that a district court must take care not to reach the merits of a case when deciding a Rule 12(b)(1) motion . . Rule 12(b)(1) does not provide plaintiffs the procedural safeguards of Rule 12(b)(6), such as assuming the truth of the plaintiff’s allegations. Thus, when faced with a jurisdictional issue that is intertwined with the merits of a claim, district courts “demand less in the way of jurisdictional proof than would be appropriate at a trial stage.” CNA v. United States (3d Cir. 2008) (citing Gould Elecs., Inc. v. United States (3d Cir. 2000)).

Looking Forward

Do the normative concerns cited by the Fifth Circuit overshadow the textualist reasoning accepted by the Third Circuit? Does the Third Circuit’s claim that district courts will “demand less in the way of jurisdictional proof than would be appropriate at a trial stage” alleviate any of the concerns raised by the Fifth Circuit? For a detailed argument in favor of the Second and Third Circuit jurisdictional approach, check out Erin Murray Watkins’ article for George Mason Law Review, THE SCOPE OF EMPLOYMENT REQUIREMENT OF THE FEDERAL TORT CLAIMS ACT: THE IMPROPRIETY AND IMPLICATIONS OF THE MONTEZ DECISION, AND THE SUPERIOR JURISDICTIONAL PRIMA FACIE APPROACH.

The Presumption Against Extraterritoriality and the Alien Tort Statute

The Alien Tort Statute

The Alien Tort Statute (“ATS”) was enacted as part of the Judiciary Act of 1789.  It provides that “the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” (28 U.S.C. § 1350).

From 1789 until 1960, cases were brought under the ATS only three times, but beginning in 1960, the statute began to be used much more frequently to hold individuals, corporations, and governments accountable for alleged human rights abuses.  This usage continued until 2013 when the Supreme Court greatly limited the statute’s reach in the landmark case Kiobel vs. Royal Dutch Petroleum Co.

Kiobel

In Kiobel, Several Nigerian nationals alleged that three corporations (from the Netherlands, the United Kingdom, and Nigeria) aided and abetted a Nigerian military campaign to suppress opposition to those corporations’ activities.  The crimes alleged included detention, torture, and extrajudicial killings, all of which violate the law of nations.

The Second Circuit dismissed the complaint because it did not believe that the law of nations recognizes corporate liability so cases could not be brought against corporations under the ATS.  The Supreme Court then granted certiorari and affirmed the lower court’s opinion.

The Supreme Court claimed to have granted certiorari to answer the question of whether corporations could be held liable under the ATS; however, the court instead reached out (no pun intended) to hold that a canon of statutory interpretation, the presumption against the extraterritoriality, applied to the ATS and therefore the statute could not be applied outside of the US.

The court said that the presumption could not be overcome since, “all of the relevant conduct took place outside of the United States.”  The court further noted that, “even where the claims touch and concern the territory of the United States,” it must be with “sufficient force” to overcome the presumption against extraterritoriality, and that “mere corporate presence” alone would not be sufficient.

This reasoning in the negative implied that the presumption could be overcome, however, which has left room for discrepancies among the lower courts.  The differences mainly center on how to analyze the phrase “touch and concern” and what is sufficient to overcome the presumption.

The Split

The Second Circuit

The split among the circuit courts is basically the Second versus the rest.  The Second Circuit is the most restrictive when applying the ATS and therefore has the highest bar of sufficiency to overcome the presumption.  In Mastafa v. Chevron Corp (2d Cir. 2014), the court said that the conduct which violates the law of nations must occur within the United States, and that U.S. citizenship of the defendant is not relevant.

The core purpose of the presumption of extraterritoriality is more pronounced in Mastafa than in Kiobel:

“[T]he danger of unwarranted judicial interference in the conduct of foreign policy is magnified in the context of the ATS, because the question is not what Congress has done but instead what courts may do.” [Describing the dangers inherent when courts impinge on the role of the executive and legislative branches in managing foreign policy, the Court explained,] “[t]hese concerns, which are implicated in any case arising under the ATS, are all the more pressing when the question is whether a cause of action under the ATS reaches conduct within the territory of another sovereign.”

In addition to the foreign policy argument, the court noted that a defendant’s citizenship is irrelevant because of Supreme Court language asserting that a “mere corporate presence” is not enough.

The Rest

Other courts have determined that a defendant’s citizenship can be relevant, though not sufficient alone.  In Doe v. Drummond Co., Inc., (2015) the Eleventh Circuit stated:

in determining whether a claim sufficiently touches and concerns the territory of the United States to confer jurisdiction to U.S. courts, the citizenship or corporate status of the defendant is relevant. If the defendants are U.S. citizens, some of the foreign policy concerns that the presumption against extraterritorial application is intended to reduce may be assuaged or inapplicable, since we would not be haling foreign nationals into U.S. courts to defend themselves.  Additionally, the acts of U.S. citizens may impact the United States, whether their actions occur extraterritorially or within the United States, particularly if those actions include international law violations.

The Eleventh Circuit believes that a less strict reading, which allows for the consideration of the citizenship of a defendant and conduct occurring outside the U.S., may not be significant foreign policy concern, and instead may be important to the U.S.

Similarly, the Fourth Circuit held in Al Shimari v. CACI Premier Technology, Inc. (2014) that the citizenship of a defendant is relevant, and that claims against acts committed outside the U.S. could be brought under the ATS because it was an important U.S. interest to allow aliens the right to hold U.S. citizens liable for torture committed abroad.

Looking Forward

The Kiobel decision has led to a sharp decrease in cases which can be brought under the ATS.  A strict interpretation will eliminate most cases which would have been eligible pre-Kiobel.  This is a concerning result considering our globalized world.  Increasingly, U.S. corporations are operating in foreign countries and an interpretation like the Second Circuit’s view in Kiobel will make it almost impossible for aliens to hold these corporations liable for torts committed abroad.  The other circuits have struck a balance between applying U.S. laws in other sovereign nations and still allowing foreigners the ability to hold companies and other individuals liable for human rights abuses that are of sufficient interest to the U.S.

Additional Reading

See: “Kiobel case: US Supreme Court Review of Alien Tort Claims Act” and “Is the Alien Tort Statute Headed Back to the Supreme Court?”