find no merit in plaintiffs contention that application of the exception to cases brought under § 2680(h) would result in the dismissal of most of those cases on grounds of sovereign immunity. Instead, we find that application of the discretionary function to cases brought under § 2680(h) is entirely consonant with the Congressional purpose of "providing a remedy against the Federal government for innocent victims of Federal law enforcement abuses." Sen. Rep. No. 93-588, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 2789, 2792.
The conclusion that cases brought pursuant to the proviso must satisfy the discretionary function test also finds support in the language of the discretionary function exception. Section 2680(a) plainly states that the FTCA's general waiver of sovereign immunity is inapplicable to "any claim" based on a discretionary function. 28 U.S.C. § 2680(a); see also Gray v. Bell, 712 F.2d at 507. Furthermore, to read the intentional tort proviso as limited by the discretionary function exception comports with the basic principle that a waiver of sovereign immunity must be construed strictly in favor of the government. See Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-86, 103 S. Ct. 3274, 3278, 77 L. Ed. 2d 938 (1983).
Accordingly, we reject plaintiffs' argument that even discretionary conduct is actionable under the intentional tort proviso. We hold that claims brought pursuant to the FTCA's intentional tort proviso must satisfy the discretionary function exception.
See Gray v. Bell, 712 F.2d at 508 (holding that a plaintiff "must clear the 'discretionary function' hurdle and satisfy the 'investigative or law enforcement officer' limitation" in order to sustain his claim); McElroy v. United States, 861 F. Supp. 585, 593 (W.D. Tex. 1994) ("Section 2680(h) does not . . . trump the discretionary function exception of 2680(a).").
B. Unconstitutional conduct and § 2680(a)
Invoking the above-cited rule that conduct cannot be discretionary if it violates the Constitution, plaintiffs next argue that even if the discretionary function exception applies to claims brought under § 2680(h) in general, in this case the exception cannot shield the United States from liability because the challenged conduct of the inspectors was unconstitutional. Relying on United States v. Montoya de Hernandez, 473 U.S. 531, 105 S. Ct. 3304, 87 L. Ed. 2d 381 (1985), plaintiffs contend that the Customs inspectors' detention and search of them violated the Fourth Amendment because it was without "reasonable suspicion" and was instead based on plaintiffs' race.
In reply, defendant contends that plaintiffs' argument is irrelevant because constitutional tort claims are not cognizable under the FTCA. Defendant also argues that the factual record shows that the detention and search of plaintiffs was supported by reasonable suspicion.
Defendant is correct that constitutional tort claims are not actionable under the FTCA. See FDIC v. Meyer, U.S. , , 114 S. Ct. 996, 1001, 127 L. Ed. 2d 308 (1994) ("The United States simply has not rendered itself liable under § 1346(b) for constitutional tort claims."). Plaintiffs, however, do not seek to impose liability on the United States for a constitutional tort. Rather, their claim finds its substantive basis in the common law of New Jersey. See, e.g., Bartolo v. Boardwalk Regency Hotel Casino, Inc., 185 N.J. Super. 534, 449 A.2d 1339 (1982) (tort of false imprisonment is established upon showing any unlawful restraint upon a man's freedom of locomotion).
While the FTCA does not waive the sovereign immunity of the United States for a claim based on conduct that violates only the Constitution, it clearly does waive that sovereign immunity for claims based on state law. See FDIC v. Meyer, 114 S. Ct. at 1001 (state law is the source of substantive liability under the FTCA). Defendant has offered no authority, nor have we found any, that would support a holding that claims which are otherwise actionable under state law are prohibited under the FTCA simply because the challenged conduct also violates the Constitution. In fact, case law is to the contrary. See Rhoden v. United States, 55 F.3d 428, 432 n.5 (9th Cir. 1995) (plaintiff could base FTCA claim on conduct which both violated the Constitution and amounted to false imprisonment under California state law); Birnbaum v. United States, 436 F. Supp. 967, 983-86 (S.D.N.Y. 1977), aff'd on other grounds, 588 F.2d 319 (2d Cir. 1978) (constitutional tort action arising out of one of § 2680(h)'s six enumerated torts is viable under the FTCA if sanctioned by the "law of the place"); see also Carlson v. Green, 446 U.S. 14, 19-20, 23, 100 S. Ct. 1468, 1471-72, 1474, 64 L. Ed. 2d 15 (1980) (noting that same conduct might give rise to both Bivens and FTCA actions). Accordingly, defendant's observation that the FTCA does not waive sovereign immunity for constitutional torts, while correct, provides no defense to plaintiffs' argument that judgment is precluded because the discretionary function exception does not shield unconstitutional conduct.
Nor can we grant judgment in favor of defendant or dismiss based on its argument that the Customs inspectors' conduct was indeed based upon "reasonable suspicion." In the first place, in holding that the detention of a suspected alimentary canal smuggler at the border, beyond the scope of a routine customs search and inspection, must be supported by "reasonable suspicion," the Montoya court specifically left open the question of what level of suspicion would justify the types of searches at issue here. See Montoya, 473 U.S. at 541 n.4, 105 S. Ct. at ("We suggest no view on what level of suspicion, if any, is required for nonroutine border searches such as strip, body-cavity, or involuntary x-ray searches."). As neither party has briefed this issue, even if we were at this point convinced that reasonable suspicion existed, we would be reluctant to hold on the record before us that all of the inspectors' actions were consistent with constitutional requirements.
We find that the present record contains disputed issues of fact and credibility issues on the issue of whether reasonable suspicion existed, or whether the inspectors based their decision on plaintiffs' race. For example, although defendant has provided the testimony of the inspectors as to the factors they relied on in deciding to detain and search plaintiffs, plaintiffs have presented their own sworn verifications which in several ways contradict the version of events as described by the inspectors. We believe that a hearing under Federal Rule of Civil Procedure 43(e) will be necessary to resolve the credibility issues.
The purpose of this hearing is to resolve the issue of jurisdiction prior to a trial
on the merits.
Because we cannot at this point preclude the possibility that the inspectors' conduct was unconstitutional,
we cannot hold that the challenged conduct falls within the discretionary function exception. Accordingly, we must deny defendant's motion. See Prisco v. Talty, 993 F.2d 21, 26 n.3 (3d Cir. 1993) (noting that discretionary function exception did not present a possible defense to plaintiff's FTCA claim where court had previously ruled that government's conduct violated plaintiff's clearly established constitutional due process rights); Glickman v. United States, 626 F. Supp. 171, 175 (S.D.N.Y. 1985) (denying Government's motion to dismiss under § 2680(a) where plaintiff based common law tort claim on allegation that government had tested experimental drugs on American citizens without their knowledge; court held that such conduct "goes beyond the constitutional powers of the Government, and seriously violates the constitutional rights of a citizen" and therefore does not fall within discretionary function exception); but see Kiiskila v. United States, 466 F.2d 626, 627-28 (7th Cir. 1972) (upholding district court's dismissal of case for lack of jurisdiction and holding that challenged conduct, although "constitutionally repugnant," fell within discretionary function exception).
C. The two-pronged discretionary function inquiry
Although we have already determined that we must deny defendant's motion, in the interest of judicial economy and to clarify the issues that remain to be determined, we will address plaintiffs' final argument: that even if the inspectors' conduct was not unconstitutional, it still cannot be considered discretionary because it does not satisfy the two-pronged inquiry that defines discretionary conduct. As noted above, the discretionary function applies where: 1) the conduct at issue is a matter of choice for the acting employee and 2) that permissible choice is "based on considerations of public policy." Accordingly, we must examine the nature of the responsibilities of the Customs Inspectors whose conduct is challenged here.
Title 19 U.S.C. § 1582 provides that "all persons coming into the United States from foreign countries shall be liable to detention and search by authorized officers or agents." Similarly, 19 C.F.R. § 162.7 provides that: "A Customs officer may stop, search, and examine any . . . person." Finally, 19 C.F.R. § 162.7 states that "All persons, baggage, and merchandise arriving in the Customs territory of the United States from places outside thereof are liable to inspection and search by a Customs officer . . . if such action is deemed necessary or appropriate."
We find that the statute and its accompanying regulations indicate that there is "room for choice" on the part of an individual Customs inspector determining whether and to what extent to detain or search an individual entering the country. For instance, the statute states that Customs agents "may" search passengers, but it does not obligate them to search each passenger. See Attallah, 955 F.2d at 784. Instead, the statutory and regulatory scheme clearly contemplates that Customs agents will be permitted to discriminate among passengers in determining whom to detain and/or search. It provides no criteria which must be considered in making this determination, nor does it forbid Customs agents from relying upon certain criteria. Similarly, it does not indicate which types of searches or what periods of detention are appropriate or inappropriate in given situations. In sum, the statutory and regulatory scheme requires a case-by-case determination of whether and how to stop, search, and examine incoming passengers and vests the individual officer with broad latitude in all aspects of this determination. See Attallah, 955 F.2d at 784 ("The words 'may stop search and examine,' and 'are liable to inspection,' indicate to us that there is room for choice on the part of Customs agents when carrying out their duties."); DePass v. United States, 479 F. Supp. 373, 377 (D. Md. 1979) (distinguishing between cases where "an official must mechanically follow set, defined guidelines" and cases where "an official has broad discretion and few constraints in his decisionmaking") (citations omitted).
Even plaintiffs do not seriously contest that the decision to search or detain a given passenger or the decision to subject a passenger to a particular type of search or period of detention is a matter of choice for the individual agents involved. Accordingly, we find that the first prong of the discretionary function inquiry is met.
We also find that Customs inspectors exercise policy choice when deciding whom to detain and search and what types of detention and search are appropriate. We agree with the First Circuit that
the decision an agent makes is of great importance in fulfilling the mandate of the Customs Service--to protect the integrity of our national borders. It is imperative that a Customs agents feel at liberty to exercise his/her discretion to search, or not, any passenger, without fearing legal repercussions. For these same reasons, standards for searches and seizures by Customs agents at the border . . . are less stringent than at any other places in our nation.
Attallah, 955 F.2d at 784 (citations omitted); cf. Depass, 479 F. Supp. at 377 ("Despite the ad hoc nature of the inspector's decision, each time an immigration inspector examines someone to determine whether he is a U.S. citizen, the inspector is in effect setting a policy that affects our international relations and which has social, economic, and political repercussions in this country as well."); Horta v. Sullivan, 4 F.3d at 21 ("Generally, although law enforcement agents have a mandatory duty to enforce the law, decisions as to how best to enforce that duty are protected by the discretionary function exception.") (citing cases).
Furthermore, the Supreme Court has indicated that "when established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion." United States v. Gaubert, 499 U.S. at 324, 111 S. Ct. at 1274. The burden is on plaintiff to show "that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime." 499 U.S. at 324-25 & n.7, 111 S. Ct. at 1274-75 & n.7 (stating, as an example, that the discretionary function would not apply to a bank regulator's negligent driving while on an official mission because although driving involves the constant exercise of discretion, the bank regulator's decisions in exercising that discretion can hardly be said to be grounded in regulatory banking policy). Here, plaintiffs have failed to present any evidence which could overcome the presumption that the challenged conduct was grounded in the policy of protecting the integrity of our borders.
Accordingly, we hold that, provided the conduct of the Customs inspectors was within constitutional bounds, both prongs of the discretionary function exception inquiry are satisfied. The Customs inspectors' decision as to whether and to what extent they would detain and search plaintiffs is a discretionary function within the meaning of the FTCA.
Defendant has moved for judgment on the ground that the court lacks subject matter jurisdiction because this action falls within the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a). Because plaintiffs may yet prove that the Customs inspectors' detention and search of them was unconstitutional, and therefore not shielded by the discretionary function exception, we must deny defendant's motion at this time.
The conduct alleged in the Complaint is indeed of a most serious nature. Even the defendant United States has acknowledged in its brief that "plaintiffs suffered a thoroughly unpleasant and intrusive examination by Customs at the Newark International Airport on the evening of February 3, 1994, and that it is regrettable when any citizen suffers such indignities." Despite the gravity of the allegations, however, should plaintiffs fail at the hearing to meet their burden of proving a constitutional violation, this court will have no choice but to dismiss this matter for lack of subject matter jurisdiction. The issue to be determined in our hearing on jurisdiction will be whether or not the Customs inspectors' decisions to detain and search plaintiffs were made on a constitutional basis or an unconstitutional basis. Prior to the hearing, the parties shall brief the issue, left open in Montoya, of what level of suspicion is constitutionally required to justify the types of searches at issue in this case.
AND NOW, this 18th day of August, 1995, after full consideration of Defendant's Motion for Judgment, filed on June 21, 1995, Plaintiffs' Brief in Opposition, filed on July 10, 1995, Defendant's Reply Brief, filed on July 12, 1995, and Plaintiffs' Letter to the Court dated July 17, 1995, it is hereby ORDERED that Defendant's Motion is DENIED at this time without prejudice until a hearing can be held consistent with the foregoing opinion.
BY THE COURT
Franklin S. Van Antwerpen
United States District Judge