February 5, 1992 ____________________
No. 91-1291
ELIAS ATTALLAH, VIOLETA LAJAM DE ATTALLAH,
AND THE CONJUGAL PARTNERSHIP THEY COMPRISE,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Coffin and Timbers,* Senior Circuit Judges.
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Luis A. Gonz lez-P rez for appellants.
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Heidi E. Weckwert, Trial Attorney, Torts Branch, Civil
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Division, U.S. Department of Justice, with whom Stuart M. Gerson,
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Assistant Attorney General, Daniel F. L pez-Romo, United States
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Attorney, and Phyllis J. Pyles, Assistant Director, Torts Branch,
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Civil Division, were on brief for appellee.
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* Of the Second Circuit, sitting by designation.
TORRUELLA, Circuit Judge. This appeal arises from an
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action brought by Elias Attallah and Violeta Lajam de Attallah
against the United States Customs Service, pursuant to the
Federal Tort Claims Act ("FTCA"), 28 U.S.C. 1346(b), 2671 et
__
seq., seeking to recover damages for the theft of their property.
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The United States District Court for the District of Puerto Rico
entered summary judgment for defendants. We affirm.
I. FACTS
I. FACTS
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We review the facts as ascertained by the district
court. El as Attallah and Violeta Lajam Attallah (hereinafter
"plaintiffs") allege that on or about September 10, 1982, a
courier named Yamil A. Mitri-Lajam transported currency and other
monetary assets into the Commonwealth of Puerto Rico on their
behalf. These assets were owned by plaintiffs and valued at
$693,838.43. Upon arrival at Luis Mu oz Mar n International
Airport, Mitri-Lajam declared and surrendered the assets for
verification to the U.S. Customs Service agents ("Customs agents"
or "agents") on duty, as required by federal law. The courier
was to enter the country and deposit the assets at the San Juan
branch of the Royal Bank of Canada. When plaintiffs did not hear
from Mitri-Lajam that day, they contacted the bank and were told
that the courier had not arrived. Plaintiffs then contacted the
Customs Service and were told, by a person who identified himself
as a Customs agent, that Mitri-Lajam had been processed by
customs and had left the premises. El as Attallah travelled to
Puerto Rico the evening of September 10, 1982, and went to the
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Customs Service office the next day. After being told the same
information, he contacted the Puerto Rico Police Department.
Approximately ten days later, Mitri-Lajam's decomposed
body was found in Puerto Rico's rain forest -- El Yunque. The
police advised Mr. Attallah that they had no leads as to who was
responsible for the criminal acts committed.
On May 13, 1987, four years and seven months later, a
federal grand jury returned an indictment against two former
Customs agents -- Rafael J. Dom nguez and Daniel J. Maravilla --
for the assault, robbery, and murder of Mitri-Lajam. The
indictment was the conclusion of a federal investigation into the
death of Mitri-Lajam, and it included charges of obstruction of
justice, perjury and unlawful transportation of stolen assets in
interstate commerce.
In June 1987, El as Attallah was approached by the U.S.
Justice Department to testify for the prosecution in the criminal
trial against the two former Customs agents Dom nguez and
Maravilla. On January 12, 1988, the Customs Service received a
letter from plaintiffs claiming damages under the Federal Tort
Claims Act, 28 U.S.C. 1346(b), 2671, et seq. for the negligent
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conduct of Dom nguez and Maravilla, who allegedly acted within
the scope of their employment.1 The instant complaint against
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1 Plaintiffs filed an initial complaint against the United
States and the Customs Service on June 29, 1988. However, that
complaint was dismissed without prejudice on the sole ground that
plaintiffs had failed to exhaust their administrative remedies
inasmuch as their suit was filed prematurely. Section 2675(a) of
the FTCA provides that an agency has six months in which to
dispose of an administrative claim. If after that six-month
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the United States was filed on October 3, 1988.
Plaintiffs also allege that Customs agents Rafael J.
Dom nguez, Daniel J. Maravilla, Julio C. Palmer, and other
unidentified agents designated as John, Richard and William Doe,
negligently failed to provide adequate security for the assets
which were stolen or lost while under the exclusive custody and
control of the Customs agents; and that Customs agents Maravilla
and Dom nguez willfully assaulted, robbed and murdered Mitri-
Lajam.2 Plaintiffs further allege that the Customs Service
negligently supervised the aforementioned agents, and
fraudulently concealed the two agents' involvement in the
disappearance of the assets.
On February 2, 1991, the district court entered summary
judgment for defendant on the grounds that plaintiff's first
claim arose out of the intentional criminal acts committed by two
Customs agents acting outside the scope of their employment.
Furthermore, the district court held that plaintiff's second and
third claims were barred by the discretionary function exception
to the FTCA, 28 U.S.C. 2680(a). A timely Notice of Appeal was
filed on March 11, 1991. As we agree with the district court's
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period the agency has not acted upon the claim, then the claimant
may file a lawsuit in district court.
2 Following a federal investigation, Dom nguez and Maravilla
were indicted for these crimes. After a jury trial, the former
Customs agents were convicted of murdering Mitri-Lajam, among
other crimes. Gonz lez-Bernal v. United States, 907 F.2d 246,
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248 (1st Cir. 1990) (wrongful death suit brought by the wife and
children of courier Mitri-Lajam against the United States and the
Customs Service).
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reasoning, we affirm.
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II. STANDARD OF REVIEW
II. STANDARD OF REVIEW
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Summary judgment is proper when there is "no genuine
issue as to any material fact and the moving party is entitled to
a judgment as a matter of law." Fed. R. Civ. P. 56(c).3 We
consider the undisputed facts in the light most favorable to the
non-movant. See, e.g., Kennedy v. Josephthal & Co., Inc., 814
___ ____ _______ _______________________
F.2d 798, 804 (1st Cir. 1987). Our review of legal issues is
plenary.
III. LEGAL ANALYSIS
III. LEGAL ANALYSIS
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A. Accrual of Action
A. Accrual of Action
The FTCA, 28 U.S.C. 1346(b), 2671 et seq., affords a
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plaintiff two years from the date a claim against the United
States accrues, to file a written claim with the agency thereby
preserving the right to file a tort suit in federal court against
the United States. 28 U.S.C. 2401(b).4 It is well settled
law that an action brought against the United States under the
FTCA must be dismissed if a plaintiff has failed to file a timely
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3 Although defendant's motion was brought under Rule 12(b)(6),
it was treated as a motion for summary judgment by the district
court. See Attallah v. United States, 758 F. Supp. 81 (D.P.R.
___ ________ ______________
1991). Since the plaintiffs have not objected, we assume the
propriety of the district court's action.
4 Title 28 U.S.C. 2401(b) provides:
A tort claim against the United States
shall be forever barred unless it is
presented in writing to the appropriate
Federal agency within two years after
such claim accrues or unless action is
begun within six months after the date of
mailing, by certified or registered mail,
of notice of final denial of the claim by
the agency to which it was presented.
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administrative claim with the appropriate federal agency. United
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States v. Kubrick, 444 U.S. 111, 113, 100 S. Ct. 352, 355, 62
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L.Ed.2d 259 (1979); Gonz lez-Bernal v. United States, 907 F.2d
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246, 248 (1st Cir. 1990). See also, Vega-V lez v. United States,
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800 F.2d 288 (1st Cir. 1986); Richman v. United States, 709 F.2d
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122 (1st Cir. 1983). The filing of a timely administrative claim
is a jurisdictional requirement that cannot be waived. Gonz lez-
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Bernal, 907 F.2d at 248; Richman, 709 F.2d at 124. If the
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claimant fails to comply with this requirement, his claim is
"forever barred." 28 U.S.C. 2401(b).
Plaintiffs-appellants allege that appellees
deliberately concealed material facts related to Mitri-Lajam's
death, and thus, that the statute of limitations should not begin
to run until they discovered, or by reasonable diligence should
have discovered, the basis of the lawsuit.5 They argue that
even in the exercise of due diligence they could not have
discovered that Customs agents were the responsible parties
within two years of Mitri-Lajam's death, and that the statute of
limitations should begin to run at the time of the indictment of
the responsible Customs agents. The general rule, within the
meaning of the FTCA, is that a tort claim accrues at the time of
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5 Plaintiffs contend that the federal government fraudulently
concealed the critical facts relating to the former Customs
agents' involvement in the disappearance of the assets. Because
the court has found that plaintiffs' action is timely we do not
address this issue. But see Gonz lez-Bernal, 907 F.2d at 250
___ ___ _______________
("[T]he government is under no obligation to provide private
citizens with information concerning ongoing criminal
investigations").
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the plaintiff's injury, Kubrick, 444 U.S. at 120; Gonz lez-
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Bernal, 907 F.2d at 249; Richman, 709 F.2d at 123 -- in this
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case, at the time of the courier's robbery, on or about September
10, 1982. Plaintiffs filed their claim with the Customs Service
On January 12, 1988, five years and four months after the robbery
and assassination of their courier, Mitri-Lajam. Hence,
according to the statute of limitations provision cited above,
the plaintiffs' action, is time-barred.
However, the jurisprudence has recognized an exception
to the general rule established by the statute of limitations in
actions which fall under the so called "discovery rule." See,
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e.g., Urie v. Thompson, 337 U.S. 163, 69 S. Ct. 1018, 93 L.Ed.2d
____ ____ ________
1282 (1949). Under the discovery rule, the action accrues when
the injured party knew or, in the exercise of reasonable
diligence, should have known the factual basis for the cause of
action. Kubrick, 444 U.S. at 121-25; Maggio v. Gerard Freezer &
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Ice Co., 824 F.2d 123, 130 (1st Cir. 1987). The standard set
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forth by the discovery rule is an objective one. In order for
the statute of limitations to be tolled pursuant to the discovery
rule, the factual basis for the cause of action must have been
"inherently unknowable" at the time of the injury. See, e.g.,
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Levin v. Berley, 728 F.2d 551, 553 (1st Cir. 1984). After a
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careful examination of the record in the light most favorable to
plaintiffs, we find that the principles established by the
discovery rule warrant a delayed accrual in this case since
appellants did not know, nor in the exercise of reasonable
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diligence could have known of the Customs agents' criminal acts
until the time of their indictment in May of 1987.
The government, however, argues that the statute of
limitations should not be tolled in this case because appellants
were aware of their injury and its cause on or about September
20, 1982, when the body of the courier was found.6 At that
time, the government claims, appellants were armed with the
critical facts concerning their injury, i.e., loss of their
assets, and its cause -- the abduction and murder of Mitri-Lajam.
We disagree. Appellants travelled to Puerto Rico when their
courier failed to call them after his trip. They visited the
Customs Service office at the Luis Mu oz Mar n airport where they
were told that Mitri-Lajam had been processed and had left the
premises. In fact, they were even shown documentation to that
effect. Aside from this information, appellants had no other
source of information regarding the whereabouts of their courier.
In light of these facts, we cannot see how appellants could have
known the factual basis for their claim -- the robbery and
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6 The government relies on this court's decision in Gonz lez-
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Bernal, supra, to argue that appellant's cause of action arose on
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or about September 10, 1982. However, this court's decision in
that case had nothing to do with the accrual issue presented
here. There we held that plaintiff Gonz lez-Bernal failed to
bring a court action within the prescribed six months, after
their claim before the Customs Service was denied. Gonz lez-
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Bernal, 907 F.2d at 249, 251 (citing 28 U.S.C. 2401(b) in its
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holding). If a plaintiff does not bring a court action within
the six months following the denial of a claim before a federal
agency, then they are forever barred from bringing a court action
based on the same facts. See 28 U.S.C. 2401(b). A factual
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determination as to when the cause of action arose was never made
in that case.
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subsequent assassination of their courier by two Customs agents.
The police did not have sufficient information to bring charges
against the responsible Customs agents until 1987. We believe
appellants could not have been more efficient. Where the injury
and its cause are not immediately apparent, accrual of the cause
of action occurs at the time the injury is discovered or when a
claimant in exercise of reasonable diligence could have
discovered it. Kubrick, 444 U.S. at 121-25. Therefore,
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appellants cause of action accrued on or about June 1987, when
criminal indictments were brought against the responsible
parties, and since plaintiffs presented their claim to the
Customs Service in January 12, 1988, we find their court action
is timely.
B. Scope of Employment
B. Scope of Employment
Notwithstanding the timeliness of appellant's claim, we
find that appellant's cause of action is barred on different
grounds. Appellants contend that the Customs agents who
committed the criminal acts against their courier, and their
property, on or about September 10, 1982, were acting within the
scope of their employment, and thus liability lies on the part of
the United States. We find appellant's proposition flawed.
The United States is only liable for "loss of property
. . . caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his
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office or employment . . . ." 28 U.S.C. 1346 (b) (emphasis
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supplied). Whether or not a government employee's act is within
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the scope of his/her office or employment "is a matter to be
determined in accordance with the law of the place in which the
alleged negligent act or omission occurred." Borrego v. United
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States, 790 F.2d 5, 6 (1st Cir. 1986) (citing Williams v. United
______ ________ ______
States, 350 U.S. 857, 76 S. Ct. 100, 100 L.Ed. 761 (1955);
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Merritt v. United States, 332 F.2d 397 (1st Cir. 1964)). The
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acts upon which the present action is based took place in the
Commonwealth of Puerto Rico. An examination of Puerto Rico case
law pertaining to whether an employees' action is or not within
the scope of his/her employment supports the conclusion reached
by the district court in this case -- that the Customs agents
responsible for the criminal acts against Mitri-Lajam were not
acting within the scope of their employment.
According to the Puerto Rico Supreme Court in Rivera,
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et al v. Maldonado, et al, 72 D.P.R. 479 (1951), the fact that
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the employee is under the general employment of the employer does
not necessarily create an inference that a particular act by the
employee was within the scope of his employment. Rivera, 72
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D.P.R. at 484 (our translation). Rather,
"[t]o consider the act to be within the
scope of his employment, it should be the
kind of act that the employee would be
called upon to perform in his job, and it
should have occurred during a period not
unreasonably disconnected with the period
of employment, and in a place not
unreasonably distant from the place of
employment, and motivated, at least in
motivated, at least in
part, with the purpose of serving his
part, with the purpose of serving his
employer.
employer
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Id. (emphasis added) (our translation).7 The Court expanded
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this standard in P rez Rodr guez v. Saur , 84 D.P.R. 500, (1962),
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stating that "in order for liability to lie on the part of the
employer, regardless of whether the employee's actions were
against the employer's instructions or exceeded the duties of his
employment, said act must have had the intention of benefitting
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the employer or forwarding his/her interests." P rez Rodr guez,
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84 D.P.R. at 503-04 (emphasis added) (our translation).8
Furthermore, the Puerto Rico Supreme Court has ruled
that "an employer is not liable for the wrongful criminal and
intentional acts of an employee, unless this conduct is due
somehow to the employee's desire to serve, benefit or further his
employer's business or interest." Jim nez v. The People of
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Puerto Rico, 83 P.R.R. 195, 200-01 (1961).9 According to the
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Court in Jim nez, "the test of liability is whether
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notwithstanding the fact that it is a question of wrongful
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7 See also Mart nez v. U.S. Casualty Co., 79 D.P.R. 596, 601
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(1956); Llor ns v. Lozada, 73 D.P.R. 271, 275-77 (1952); Maysonet
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v. Sucn. Arcelay, 70 D.P.R. 167, 171-73 (1949); Su rez v.
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Saavedra, 60 D.P.R. 605, 609-11 (1942).
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8 See also Vargas Vargas v. Belthor C ceres Corp., 90 D.P.R. 37,
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41-42 (1964).
9 In Jim nez a state policeman -- who was on duty and in uniform
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-- had an argument with a citizen and, thereafter, followed him
home and fatally shot him. The decedent was not committing any
crime, nor otherwise acting in a manner which should have
provoked such a response from the officer in his official
capacity. Therefore, the Puerto Rican Supreme Court found no
liability on the part of the police department. In other words,
the policeman was engaged in a personal venture of his own,
rather than doing something in promotion of his employer's
interests.
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conduct, the act performed is reasonably related to the scope of
the employment, or if the agent has been prompted by purely
personal motives." Jim nez, 83 P.R.R. at 201.10 Essentially,
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there must be some link between the intentional criminal act
committed by the employee, and the legitimate interests of the
employer.
Thus, when determining whether or not an employee acted
within the scope of his/her employment, the following elements
must be evaluated:
1. Desire to serve, benefit, or further
his/her employer's business or interest.
2. That the act is reasonably related to the
scope of the employment.
3. That the agent has not been prompted by
purely personal motives.
Borrego, 790 F.2d at 7 (citing Rodr guez v. United States, 328 F.
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Supp. 1389, 1391 (D.P.R. 1971)).
We can only conclude that, as a matter of law, the
criminal conduct at issue in the instant case was not within the
scope of the actors' employment -- all three elements of the
standard are absent in this case. Here, two Customs agents
assaulted, robbed and then murdered a person -- appellant's
courier, Mitri-Lajam. We fail to see how these horrendous
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10 Citing Gonz lez v. Compa a Agr cola, 76 P.R.R. 373 (1954)
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(the essential point is to determine the agent's intention in
performing such act and, if in performing it his intention was to
serve and protect the interests of the employer and not his own,
liability shall be imposed on the employer). See also Rub n
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Mart nez v. Comunidad Mateo Fajardo Cardona, 90 P.R.R. 451, 455-
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56 (1964).
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actions could have in any way been intended to benefit, or
forward the interests of their employer, the United States
Customs Service. Nor were the agents' actions related to their
employment. The agents' duties were limited to checking
passengers' luggage for property which might be subject to duty
upon entrance to the United States, or which might have been
introduced into the country contrary to law. 19 U.S.C. 482.
Needless to say, assault, robbery and murder are clearly not part
of the duties of Customs agents. No other conclusion can be
reached but that the agents acted purely out of their own
personal interests, and not the government's, and carried out
intentional criminal acts, responsibility for which can only be
attributed to them. We simply cannot impose liability on the
United States for actions taken by their employees outside the
scope of their employment.
C. Discretionary Function Exception
C. Discretionary Function Exception
Appellants further assert that the United States is
liable for the conduct of the other Customs agents, aside from
Maravilla and Dom nguez, on duty the day Mitri-Lajam arrived in
Puerto Rico. They argue that if said agents had carried out
their duties properly and checked Mitri-Lajam when he came
through their checkpoint they would have been able to uncover the
malicious intentions of Maravilla and Dom nguez, and warned
Mitri-Lajam as to the danger nearing him. Unfortunately for
plaintiffs, while said agents were clearly acting within the
scope of their employment at the time Mitri-Lajam was processed
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by the Customs Service, their duties fall under the discretionary
function exception of the Federal Tort Claims Act. 28 U.S.C.
2680(a). Because the FTCA discretionary function exception is a
limitation on the waiver of sovereign immunity, cases which fall
within the exception must be dismissed for lack of subject matter
jurisdiction. Irving v. United States, 909 F.2d 598, 600 (1st
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Cir. 1990) (citing 28 U.S.C. 1346(b), 2680(a); Wright v.
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United States, 719 F.2d 1032, 1034 (9th Cir. 1983); Baird v.
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United States, 653 F.2d 437, 440 (10th Cir. 1981), cert. denied,
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454 U.S. 1144, 102 S. Ct. 1004, 71 L.Ed.2d 296 (1982)). We
explain below.
The FTCA is a broad waiver of sovereign immunity,
granting district courts jurisdiction to hear tort suits against
the United States for damages caused by its employees acting
within the scope of their employment, where the United States, if
a private party, would be liable under the law of the place where
the tort occurred. 28 U.S.C. 2674, 1346(b). However, 28
U.S.C. 2680 establishes fourteen exceptions to 28 U.S.C.
1346(b). Among the fourteen statutory exceptions to this waiver
of immunity is 28 U.S.C. 2680(a) which exempts
[a]ny claim based upon an act or omission
of an employee of the Government,
exercising due care, in the execution of
a statute or regulation, whether or not
such statute or regulation be valid, or
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.
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Section 2680 "marks the boundary between Congress' willingness to
impose tort liability upon the United States and its desire to
protect certain governmental activities from exposure to suit by
private individuals." Irving, 909 F.2d at 600 (citing United
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States v. Varig Airlines, 467 U.S. 797, 808, 104 S. Ct. 2755,
______ _______________
2761, 81 L.Ed.2d 660 (1984)). Because 2680(a) is a limitation
on the waiver of sovereign immunity, cases which fall within the
discretionary function exception must be necessarily dismissed,
as a matter of law, for lack of subject matter jurisdiction.
The Supreme Court has provided some guidelines to
determine whether or not a particular governmental function is
discretionary and would come under the discretionary function
exemption to the FTCA. "[I]t is the nature of the conduct,
rather than the status of the actor, that governs whether the
discretionary function exception applies in a given case." Varig
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Airlines, 467 U.S. at 813.11 The Supreme Court has made clear
________
that the exception does not preclude liability for any and all
acts arising out of the regulatory programs of federal agencies.
Berkovitz v. United States, 486 U.S. 531, 538, 108 S. Ct. 1954,
_________ _____________
100 L.Ed.2d 531 (1988). Rather, the inquiry focuses on the
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11 Varig Airlines involved two lawsuits challenging the Federal
______________
Aviation Administration's certification for commercial use of two
airplanes which later caught fire in flight. The Court held that
the discretionary function exception applied because the two
challenged agency actions -- the FAA's general decision to spot-
check airplane manufacturers' self-inspections rather than fully
inspecting every plane, and the spot-check inspectors' specific
decisions to certify the two airplanes as safe -- were taken
within a statutory and regulatory milieu leaving both the agency
and its spot-check inspectors room to make policy decisions.
Varig Airlines, 467 U.S. at 819-20.
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permissible range of action available to the government employee
allegedly at fault. "In examining the nature of the challenged
conduct, a court must first consider whether the action is a
matter of choice for the acting employee." Id. at 536. "[I]f
__
the act simply does not involve the exercise of [policy]
judgment," Id. at 546-47, or if "a federal statute, regulation,
__
or policy specifically prescribes a course of action for an
employee to follow," 2680(a) does not apply.12 Id. at 536.
__
The exception will apply, however, where there is room for
choice, and where that permissible choice is "based on
considerations of public policy." Id. at 537.
__
The Supreme Court has further dictated that, even when
the challenged action is the product of an employee's permissible
use of judgment, a suit is barred only if that judgment is of the
kind that the discretionary function exception was designed to
shield. The basis for the discretionary function exception was
Congress' desire to "prevent judicial 'second guessing' of
legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action in
tort." Id. at 536-37 (quoting Varig Airlines, 467 U.S. at 814).
__ ______________
Thus, here we must examine the nature of the
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12 The Court held that the exception did not apply in Berkovitz
_________
-- a suit challenging the government's licensing of a vaccine
lab, and the Food and Drug Administration's approval of a
specific batch of vaccine made at that lab -- at least insofar as
the plaintiff's complaint alleged that the government employees
had failed to follow mandatory statutory statutes, regulations,
or agency policy which did not allow for employee choices
grounded in policy. Berkovitz, 486 U.S. at 539-48.
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responsibilities of the Customs agents on duty, other than
Dom nguez and Maravilla, at the time Mitri-Lajam was processed.
Section 482 of Title 19 of the United States Code, the Tariff
Act, provides that Customs officers ". . . may stop, search and
may stop, search and
examine, . . . any vehicle, beast, or person, on which or whom he
examine
or they shall suspect there is merchandise which is subject to
duty, or shall have been introduced into the United States in any
manner contrary to law . . . ." (emphasis added). 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 . . . ." Section 162.6
of the Code of Federal Regulations, which implements said statute
provides 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
are liable to inspection and search by a Customs officer
. . . . if such action is deemed necessary or appropriate."
if such action is deemed necessary or appropriate
(emphasis added). Section 162.7 of the same Code of Federal
Regulations states: "A Customs officer may stop, search, and
may stop, search, and
examine any vehicle, person, or beast, or search any trunk or
examine any vehicle, person, or beast
envelope wherever found, in accordance with section 3061 of the
Revised Statutes (19 U.S.C. 482)." (emphasis added).
The language of the statute, as well as that of the
regulations, grants Customs agents the authority to stop a
particular passenger and search him/her for property which may be
subject to duty upon entrance to the United States, or which may
have been introduced into the country contrary to law. However,
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according to the statute and regulations, the agents are not
obligated to stop and search every passenger. This function, we
believe, is a discretionary function as defined by 2680 of
Title 28 of the United States Code. 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. This authority to discriminate among
passengers is exactly the type of discretionary function that
section 2680(a) sought to protect from liability. Whether or not
an agent searches a particular passenger is a function which
requires the exercise of judgment. 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.
See, e.g., U.S. v. Ramsey, 431 U.S. 606 (1977); U.S. v. 1903
___ ____ ____ ______ ____ ____
Obscene Magazines, 907 F.2d 1338 (2d Cir. 1990), cert. denied,
_________________ ____ ______
111 S. Ct. 518, 112 L.Ed. 529 (1990). It is imperative that a
Customs agent 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 (Customs agents need
not show probable cause in order to carry out a search at the
border) are less stringent than at any other place in our nation.
United States v. Montoya de Hern ndez, 473 U.S. 531, 537-38, 105
_____________ _____________________
S. Ct. 3304, 87 L.Ed.2d 381 (1985); Ramsey, 431 U.S. at 616-17.
______
Thus, we hold that section 2680(a) insulates the Government from
liability grounded on the performance of a discretionary function
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by a Customs agent.13 Said section constitutes a limitation on
the subject matter jurisdiction of federal courts, and, as a
matter of law, requires us to affirm the district court's
judgment.
Appellants further allege that the customs agents on
duty the day Mitri-Lajam was processed failed to properly
supervise agents Maravilla and Dom nguez, thus facilitating their
criminal actions against Mitri-Lajam. However, how, and to what
extent the Customs Service supervises its employees certainly
involves a degree of discretion and policy considerations of the
kind that Congress sought to protect through the discretionary
function exception.14 See Gaubert v. United States, 111 S. Ct.
___ _______ _____________
1267, 1279, 113 L.Ed.2d 335 (1991). (If the routine or frequent
nature of a decision were sufficient to remove an otherwise
discretionary act from the scope of the exception, then countless
policy-based decisions by regulators exercising day-to-day
supervisory authority would be actionable. This is not the rule
of our cases.); Ortiz v. United States, 661 F.2d 826, 831 (10th
_____ _____________
____________________
13 It should be noted that where the government is performing a
discretionary function, the fact that the discretion is exercised
in a negligent manner does not make the discretionary function
exception to the FTCA inapplicable. Dalehite v. United States,
________ _____________
346 U.S. 15, 33 (1952); Berkovitz, 486 U.S. at 539; In re Agent
_________ ___________
Orange Product Liability Litigation, 818 F.2d 210 (2d Cir. 1987),
___________________________________
cert. denied, 484 U.S. 1004, 108 S. Ct. 695, 98 L.Ed.2d 658
____ ______
(1988).
14 See, e.g., Slagle v. United States, 612 F.2d 1157, 1161 (9th
___ ____ ______ _____________
Cir. 1980) (supervision of a police informant was a discretionary
function); Goodwill Industries of El Paso v. United States, 218
_______________________________ _____________
F.2d 270, 272 (5th Cir. 1954) (supervision of migratory workers
was a discretionary function).
-20-
Cir. 1981) (inspection-supervisory activity in the construction
(or repair) of a home is part of an official's discretionary
function). This circuit has held that the Air Force's
supervision of an unrecognized student organization involved in
an R.O.T.C. program was a discretionary function and, hence,
barred a Federal Tort Claims Act wrongful death suit arising out
of a hazing incident, where Air Force memoranda indicated that
decisions about supervising the organization implemented policy
choices. Mercado del Valle v. United States, 856 F.2d 406 (1st
__________________ _____________
Cir. 1988). Moreover, the Sixth Circuit held that the Army's
decision as to how it should supervise new recruits awaiting
enlistment was discretionary. Hence, a passerby injured when
recruits threw furniture out a window could not recover for
negligent supervision. Carlyle v. United States Department of
_______ ____________________________
the Army, 674 F.2d 554 (6th Cir. 1982). Certainly then, in this
________
case, the supervisory functions of the Customs Service constitute
discretionary functions as defined by 28 U.S.C. 2680(a). For
the same reasons that Customs agents are granted more liberties
when conducting searches at the border, see Montoya, supra, their
___ _______ _____
supervisors must also be free to make discretionary decisions as
to how closely, and in what manner they will supervise Customs
agents. We thus, hold that this claim is barred by the
discretionary exception to the FTCA. 28 U.S.C. 2680(a).
Last, appellants argue that the failure of the Customs
Service to properly carry out its policies concerning security
aided the commission of the crime which led to the loss of their
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property, and therefore, the Government should be held liable.
But as discussed above, whether or not an agency like the Customs
Service, provides any security for the property it takes under
its custody, and what policies said agency adopts, as well as,
how its agents choose to implement said policies constitute
discretionary functions as defined by 2680(a). The Customs
Service has no obligation under its enabling statute to provide
any security for passengers, or their property. Marbley v.
_______
United States, 620 F. Supp. 811, 813 (D.C.D.C. 1985); Haygan v.
_____________ ______
United States, 627 F. Supp. 749, 750-51 (D.D.C. 1986). To get
_____________
around this hurdle appellants suggest that once the agency has
established security measures to insure the safety of the
property they take into custody, it is the obligation of Customs
agents to follow these policies. However, appellants cite no
policies or regulations, and we were unable to find any, which
indicate an obligation on the part of Customs agents to take any
security measures in regards to property which is processed by
Customs.15 Moreover, it should be noted that in the present
____________________
15 Appellants argue that the reason they did not cite any
policies regarding the provision of security by Customs agents to
property was that the district court stopped discovery before
they could conduct depositions of the agents on duty at the time
that Mitri-Lajam was processed. They sustain that the decision
of the district court amounts to reversible error. We disagree.
The regulations which govern the Customs Service can be found in
Title 19 of the Code of Federal Regulations, a publication which
could have been easily attainable by appellants in any law
library.
Moreover, assuming for the sake of argument that such a policy
exists, the First Circuit's decision in Zabala Clemente v. United
_______________ ______
States, 567 F.2d 1140 (1st Cir. 1978), cert. denied, 435 U.S.
______ ____ ______
1006 (1978), establishes that "even where specific behavior of
-22-
case no property was taken into custody. Since there was no
mandatory Customs Service regulation providing any security
measures for property which comes through Customs, but is not
taken into custody, no liability can be found on the part of the
Government.16
We find appellant's reliance on two Puerto Rico cases,
Negr n v. Orozco, et al., 113 D.P.R. 712 (1983), and Hern ndez v.
______ ______________ _________
ELA, 116 D.P.R. 293 (1985), to prove liability on the part of the
___
government misplaced. Both cases are easily distinguishable from
the present case. We first point out that neither case involved
a claim under the Federal Tort Claims Act against the United
States. Certain exceptions exist to the waiver of immunity by
the United States which might not be applicable when a plaintiff
____________________
federal employees is required by federal statute, liability to
the beneficiaries of that statute may not be founded on the
Federal Tort Claims Act if state law recognizes no comparable
private liability." Zabala Clemente, 567 F.2d at 1149. To the
_______________
extent plaintiffs attempt to rely solely upon a federal internal
policy directive as a source of a duty owed to the plaintiffs in
the instant case, Clemente provides that violation of such a
________
policy cannot provide the basis for suit under the Federal Tort
Claims Act. See also Fazi v. United States, 935 F.2d 535, 539-40
________ ____ _____________
(2d Cir. 1991); Art Metal-U.S.A., Inc. v. United States, 753 F.2d
______________________ _____________
1151, 1156 (D.C. Cir. 1985); Tuepker v. Farmers Home Admin., 708
_______ ___________________
F.2d 1329, 1333 (8th Cir. 1983).
16 We wish to add that if the property had in fact been lost
while under the custody of the Customs Service, and then
appellants had brought an action, said action would have been
barred by 2680 (c), which bars
[a]ny 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.
-23-
is suing a state.17 Moreover, the case before us now is not a
case where the government is involved in regulating private
conduct and protecting the public from danger. Rather, we are
dealing with the loss of property which was processed by the
Customs Service, an agency whose purpose is to collect duties,
and protect the borders of the United States from contraband.
Indeed, Customs agents are not "guardians of public peace," but
have duties and powers limited to the type described in the
enabling statute of the Customs Service. United States v.
______________
Jackson, 423 F.2d 506, 508 (9th Cir.), cert. denied, 400 U.S. 823
_______ ____ ______
(1970).
We hold that the district court was correct in finding
that, as a matter of law, the present suit is barred by Title 28
2680(a).
Affirmed.
________
____________________
17 In Orozco, the Puerto Rico Supreme Court held that the state
______
was held responsible for failing to disarm a police officer who
had been involved in an argument with another person, and
subsequently fatally shot that person while both individuals were
in the police department. In that case the negligent actors were
police officers with a duty to protect the safety of the public,
especially individuals under their custody. In Hern ndez, the
_________
Supreme Court of Puerto Rico held that the Superintendent of
Police of Puerto Rico was liable to an individual who was hurt by
a member of the police force who shot him with his police-issued
gun -- where the member was under psychiatric care, and the
police psychiatrist had recommended to the superintendent that
his gun be taken away, but he failed to do so.
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