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JL

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

David Khalaj, et al.,

Plaintiffs, 

v. 

United States of America,

Defendant.

No. CV-17-04802-PHX-DJH (CDB)

ORDER

Plaintiffs David Khalaj and Juliet David Youmaran, who are represented by counsel, 

brought this case pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1) 

and 2674. Defendant United States of America has filed a Motion to Dismiss, or, in the 

Alternative, Motion for Summary Judgment. (Doc. 95.) Plaintiffs oppose the Motion. 

(Doc. 109.)

On April 23, 2020, the Court ordered the parties to submit an additional brief 

addressing the applicability of 28 U.S.C. § 2680(h) and the law enforcement proviso to 

Plaintiffs’ intentional tort claims. (Doc. 114.) Plaintiffs filed their supplemental brief 

(Doc. 115) on May 7, 2020, as did Defendant (Doc. 116).1

I. Background

In the Complaint, Plaintiffs allege that on January 1, 2016, they were “illegally 

assaulted, detained and imprisoned” by United States Customs and Border Protection 

1 On May 8, 2020, Plaintiffs filed a Motion to Strike Defendant’s supplemental brief, 

which Magistrate Judge Bibles denied in a May 27, 2020 Order.
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(CBP) Officers as they were passing through a CBP-secured area (Customs Area) in Sky 

Harbor Airport in Phoenix, Arizona. (Doc. 1 at 2 ¶ 5.) Plaintiffs assert claims under the 

FTCA, specifically, assault and battery, illegal detainment and imprisonment, and 

negligence. (Id. at 6-9.) Plaintiffs allege that the personal injuries and resulting damages 

they suffered were proximately caused by the negligence, wrongful acts and/or omissions 

of employees/officers of the United States of America acting through its agency, CBP. (Id.

at 2 ¶ 6.)

Defendant moves to dismiss this case for lack of jurisdiction and failure to state a 

claim, or, in the alternative, for summary judgment. (Doc. 95 at 1.)

II. Motion to Dismiss for Lack of Subject Matter Jurisdiction

A. Legal Standard

Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, dismissal is 

appropriate when the court lacks subject matter jurisdiction over a claim. Fed. R. Civ. P. 

12(b)(1). Subject matter jurisdiction involves the power of the Court to hear a plaintiff’s 

claims in the first place and, therefore, imposes upon courts an affirmative obligation to 

ensure that they are acting within the scope of their jurisdictional power. Because federal 

courts are courts of limited jurisdiction, it is presumed that a cause lies outside the 

jurisdiction of federal courts unless proven otherwise. Kokkonen v. Guardian Life Ins. Co., 

511 U.S. 375, 377 (1994). The plaintiff bears the burden of establishing that jurisdiction 

exists. Tosco Corp. v. Communities for a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2001); 

Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).

“‘A motion to dismiss for lack of subject matter jurisdiction may either attack the 

allegations of the complaint or may’” attack the existence of subject matter jurisdiction as 

a matter of fact. Nat’l Union Fire Ins. Co. v. ESI Ergonomic Solutions, LLC, 342 F. Supp. 

2d 853 (D. Ariz. 2004) (quoting Thornhill Publ’g Co., 594 F.2d at 733). “When a motion 

to dismiss attacks the allegations of the complaint as insufficient to confer subject matter 

jurisdiction, all allegations of material fact are taken as true and construed in the light most 

favorable to the nonmoving party.” Id. (citing Fed’n of African Amer. Contractors v. City 
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of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996)). Where the jurisdictional issue is 

separable from the merits of the case, the Court may consider the evidence presented with 

respect to the jurisdictional issue, resolving factual disputes if necessary. Thornhill Publ’g 

Co., 594 F.2d at 733. “When the motion is a factual attack on subject matter jurisdiction, 

a defendant may ‘rely on affidavits or any other evidence properly before the Court.’” Nat’l 

Union Fire Ins. Co., 342 F. Supp. 2d at 861 (citing St. Clair v. City of Chico, 880 F.2d 199, 

201 (9th Cir. 1989)). In the instance of a factual challenge, no presumption of truthfulness 

attaches to the plaintiff’s allegations, and the existence of disputed material facts will not 

preclude the court from evaluating the merits of jurisdictional claims. Thornhill Publ’g 

Co., 594 F.2d at 733.

When a motion to dismiss is based on more than one ground, the court should 

consider the Rule 12(b)(1) challenge first because the other grounds will become moot if 

the court lacks subject matter jurisdiction. 5 Charles Alan Wright & Arthur R. Miller, 

Federal Practice & Procedure, § 1350 (2004 ed.)

B. Facts

On January 1, 2016, Plaintiffs Khalaj and Youmaran took a direct flight from 

Mexico to Sky Harbor Airport. (Doc. 96 at 2-3 ¶ 8.) When they deplaned, Plaintiffs 

proceeded to the Customs Area at approximately 4:15 p.m. (Id. at 3 ¶ 9.) Khalaj presented 

a CBP Declaration Form at the primary inspection area indicating there were four members 

in his party and held receipts identifying each party member. (Id. ¶ 10.) Plaintiffs 

proceeded with their children to the baggage carousel. (Id. ¶ 11.) Khalaj left his wife and 

children waiting for the luggage and walked to the egress point holding a bag containing 

cigarettes. (Id. ¶ 12.)

CBP Officers James Townsend and J. Mata were manning two stations at the egress 

point. (Id. ¶ 13.) Townsend observed Khalaj walk up to the egress point. (Id. ¶ 14.) When 

Khalaj got in line at the egress point, he did not have a Declaration, and he was told he 

needed a Declaration form and passport to leave. (Id. ¶ 15.) Khalaj told Townsend that he 

needed to leave to get something to eat and wanted to smoke a cigarette. (Doc. 110 at 3 
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¶ 16.) Townsend did not allow Khalaj to exit the Customs Area. (Doc. 96 at 3 ¶ 17.) 

Khalaj turned around and walked back toward the baggage carousels. (Id. ¶ 18.)

A few minutes later, Khalaj went back to the egress point with the Declaration and 

receipts but without his luggage or children. (Id. ¶ 19.) Youmaran followed behind Khalaj. 

(Id. ¶ 20.) Khalaj approached and spoke with CBP Officer Mata and again attempted to 

leave the Customs Area. (Id. ¶ 21.) Mata explained that Khalaj had to have his children

and bags with him before he could leave the Customs Area, and Khalaj informed Mata he 

was diabetic. (Id. at 4 ¶ 22.) Khalaj told Mata that he did not “know what the big deal is,” 

and he was treated better in Mexico than he was being treated in the Customs Area. (Id.

¶ 23.) Khalaj also complained, “This is absolutely absurd that we have to go through so 

much, and I’m hungry and I need to eat something.” (Id. ¶ 24.)

Mata placed a call on the radio and requested a supervisor. (Id. ¶ 25.) Supervisor 

Maria Sisson responded to the call at 4:20 p.m. and learned that Khalaj was diabetic, 

wanted food, and wanted to leave the Customs Area without his family. (Id. ¶ 26.) Sisson 

walked to the secondary inspection area with Plaintiffs and directed them to sit down, and 

Khalaj complied. (Id. ¶¶ 27-28.) During this time, Khalaj’s children remained at the 

carousels waiting for the family’s luggage. (Id. ¶ 29.)

Sisson went to talk to Mata to obtain further information because CBP does not 

allow passengers to leave unless they have the telephone number of the individuals on the 

Declaration. (Doc. 110 at 4 ¶ 30.) Chief CBP Officer Juan Osorio also arrived in the area, 

and Khalaj stood and approached Osorio and Sisson. (Id. ¶ 31.) CBP Officer Jose Colunga, 

who was manning an inspection desk near the egress point, saw Khalaj using hand gestures 

while speaking with Sisson. (Id. at 5 ¶ 33.) Colunga testified that he believed Khalaj was 

arguing with Sisson. (Doc. 96-1 at 179.) 

Colunga got up and walked to where Osorio was standing. (Doc. 96 at 5 ¶ 34.) 

Osorio testified that he observed Khalaj making comments as to why CBP was not allowing 

him to leave, using vulgar language, and raising his hands while talking. (Doc. 96-1 at 24.) 

Plaintiffs dispute this and assert that Khalaj did not use vulgar language before he was 
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“confronted and hit” by Osorio and Colunga. (Doc. 110 at 5 ¶ 35.) Osorio testified that 

he believed Khalaj was not listening to Sisson and heard Khalaj say, “Your bullshit rules. 

I’m an American citizen. I should be allowed to leave.” (Doc. 96-1 at 25.) Youmaran 

testified that Khalaj told Sisson, “I’m an American citizen. I am diabetic. I’m very 

hungry/thirsty. I haven’t ate. You guys have water, maybe something sweet that could 

spike his sugar up. He says, I’m an American. I was treated better in Mexico than I am 

here.” (Doc. 96-1 at 377.)

Sisson testified that during her interaction with Khalaj, she explained to Khalaj that 

he could not immediately leave and “the reason why we normally don’t allow people to 

leave without their whole party.” (Doc. 96-2 at 12.) Sisson left the area to try to obtain 

more information from Mata. (Id. at 16.) Colunga testified that he heard Khalaj yell, 

“Motherfuckers,” and say, “I’m a U.S. citizen. Is this . . . how you treat me, a U.S. citizen?” 

(Doc. 96-1 at 176.) Plaintiffs dispute this and assert that Colunga never overheard any 

communication between Sisson and Khalaj before Colunga and Osorio appeared on the 

scene. (Doc. 110 at 5 ¶ 38.) Townsend testified that from his vantage point, he heard 

Khalaj raise his voice and saw Khalaj use his hands in an “animated” manner, causing 

Townsend to believe Khalaj was getting upset. (Doc. 96-1 at 113-14.) Plaintiffs dispute 

this and assert that at no time did Townsend overhear any portion of the conversation 

between Khalaj and any other CBP officer or supervisor. (Doc. 110 at 6 ¶ 39.)

CBP Agricultural Specialist Robert Milbourn was also posted in the secondary area 

at that time. (Doc. 96 at 5 ¶ 40.) Milbourn wrote in a witness statement that he saw Khalaj 

become “very agitated” and heard Khalaj raise his voice, and Milbourn then left his station 

and joined Colunga, Sisson, and Osorio. (Doc. 96-2 at 49.) Khalaj “took steps to walk 

away from the officers,” but Colunga “did not permit that de-escalation.” (Doc. 110 at 6 

¶ 42.) Osorio testified that Khalaj was “pointing a finger in [Osorio’s] face,” which Osorio 

interpreted as Khalaj being “aggressive” or “assaultive.” (Doc. 96-1 at 41-43.) Osorio 

testified that he “had a feeling” that Khalaj was “trying to harm [them] and Supervisor 

Sisson.” (Id. at 43.) Osorio testified that Khalaj’s demeanor, vulgar language, hand 
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motioning, finger point, and noncompliance led him to believe that Khalaj could do 

something harmful or harm Sisson. (Id.) Osorio testified that Khalaj was “causing a 

commotion” and that other passengers were nearby listening to it. (Id. at 28.) Colunga 

testified that Khalaj attempted to walk away, and Colunga saw Khalaj take steps towards 

the exit area. (Id. at 186.)

Osorio and Colunga both used verbal commands instructing Khalaj to take a seat 

and to calm down. (Doc. 96 at 6 ¶ 46.) Khalaj did not take a seat at that time. (Id. ¶ 47.) 

“[W]ithout warning[,] the officers hit [] Khalaj’s right shoulder to force him to move,” and 

Khalaj tried to walk away from the interaction.” (Doc. 110 at 7 ¶ 49.) Osorio testified that 

he attempted to use an escort hold on Khalaj, a technique used when a “resistive” passenger 

does not comply with an officer’s order. (Doc. 96-1 at 31.) Osorio testified that enough 

pressure is applied in an escort hold to “make sure you have a good hold on the subject . . 

. so the subject won’t fidget away.” (Id. at 33.) Osorio testified that Khalaj was “resisting” 

Osorio’s direction to take a seat. (Id. at 34.) Osorio testified that he did not simply walk 

away from the situation to speak to Supervisor Sisson and “figure out what [they] wanted 

to do” because Osorio did not want to leave Khalaj unattended. (Id. at 34-35.) 

Osorio testified that when he attempted the escort hold, Khalaj said, “Don’t touch 

me,” or “Don’t fucking touch me,” which Osorio took as a “comment of aggression,” along 

with the way Khalaj was acting and “moving his arms.” (Id. at 36-37.) Osorio testified 

that “simply taking a step or two back” and trying to communicate with Khalaj as opposed 

to “touching [Khalaj] and put[ting] him in an escort hold” was not an option at the time 

because Osorio “had to ensure that [he] de-escalate[d] the situation.” (Id. at 39.)

Milbourn wrote in his witness statement that Osorio “touched Khalaj lightly on the 

shoulder and pointed out the seats behind him, asking him to sit down.” (Doc. 96-2 at 49.) 

Milbourn stated that Khalaj pushed Osorio’s hand away and told him, “Don’t you fucking 

touch me.” (Id.) Milbourn wrote that Osorio “began to try to grip Khalaj by the triceps 

and lead him over to the seats to try and get him to sit and calm down.” (Id.) According 
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to Milbourn, Khalaj “reacted to this by shoving [] Osorio away.” (Id.) Milbourn stated 

that it appeared to him that Khalaj was “going to throw a punch.” (Id.) 

After Osorio hit Khalaj, Khalaj says he “voluntarily tried to remove himself from 

the situation” and never tried to touch any CBP officer. (Doc. 110 at 8 ¶ 54.) Osorio 

testified that as he took hold of Khalaj’s arm, Khalaj swung his right arm around and 

punched Osorio. (Doc. 96-1 at 68.) Plaintiffs dispute that Khalaj swung his arm at Osorio. 

(Doc. 110 at 8 ¶ 54.) At that point, Osorio, Colunga, and Milbourn grappled with Khalaj 

and fell into the seating area. (Doc. 96 at 7 ¶ 55.) Townsend left his station and noticed 

Khalaj and Osorio were engaged in a struggle. (Id. ¶ 56.) Townsend testified that he heard 

Osorio and Colunga telling Khalaj to “calm down” and “sit down,” but Khalaj did not 

comply. (Doc. 96-1 at 119.) Plaintiffs dispute this and assert that Townsend only 

overheard the command to “calm down” after the physical interaction started. (Doc. 110 

at 8 ¶ 57.) 

Townsend further testified that he heard Khalaj use a lot of “F-bombs” and observed 

Khalaj’s arms flailing and legs kicking. (Doc. 96-1 at 126-27.) Plaintiffs dispute this and 

assert that Townsend did not observe any contact between Khalaj’s arms and legs kicking 

and Osorio and Colunga, and that Townsend could not “see what Os[o]rio and Colunga’s 

hands were doing to Khalaj.” (Doc. 110 at 8 ¶ 59.) Townsend responded by using his 

hands to shield Khalaj’s legs from kicking either Osorio or Colunga. (Doc. 96 at 7 ¶ 60.) 

Townsend saw Khalaj on the seats, kicking and swearing, and heard Youmaran telling her 

husband to calm down. (Id. ¶ 61.) Townsend also heard Colunga yell out, “Don’t bite 

me!” (Id. ¶ 62.) 

Milbourn observed Khalaj kicking and attempting to bite Colunga. (Id. ¶ 63.) 

Townsend heard Youmaran start screaming and talking about Khalaj’s medical condition 

(stroke or diabetes). (Id. ¶ 64.) Townsend observed Youmaran start “clawing” at Colunga 

and told her, “Cut that out. Calm down.” (Id. ¶ 65.) Colunga testified that during the 

struggle, Khalaj bit him on the arm. (Doc. 96-1 at 214.) Plaintiffs dispute this and assert 

that Khalaj did not bite any CBP officer. (Doc. 110 at 9 ¶ 67.) Colunga testified that when 
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Khalaj bit him, Colunga told him, “Stop biting me, fucker.” (Doc. 96-1 at 214.) Osorio 

saw Khalaj turn his head and make a motion like he was biting Colunga and heard Colunga 

yell out that he had been bitten. (Doc. 96 at 7-8 ¶ 68.) Osorio attempted to move Khalaj’s 

head away from him because Osorio “did not want to get bit.” (Id. at 8 ¶ 69.)

As the struggle continued, Osorio used a “pressure point technique” to the middle 

of Khalaj’s ear, pushed Khalaj’s face away from him, and worked to handcuff Khalaj. (Id.

¶ 70.) Sisson testified that she felt “threatened” because of the “very loud” yelling and 

profanities and that the physical altercation “looked threatening.” (Doc. 96-2 at 23.) 

Townsend put out a call on his radio for more Officers to come to the area. (Doc. 96 at 8 

¶ 72.) Sisson went to call the airport emergency number, asking for police and paramedics 

to respond. (Id. ¶ 73.) Meanwhile, Youmaran screamed and physically attempted to pull 

the Officers away from Khalaj. (Id. ¶ 74.) Milbourn “perceived” Youmaran throw herself 

on top of him, Osorio, and Colunga. (Id. ¶ 75.)

CBP Officer Oralia Villa was working at primary inspection when she heard a call 

over the radio at approximately 4:30 p.m., asking for all available Officers to report to the 

scene. (Id. ¶ 76.) When Villa arrived, she observed Officers attempting to control Khalaj 

and observed Youmaran pushing the Officers. (Id. ¶ 77.) Villa reached for Youmaran’s 

right arm, and Youmaran hit Villa in the chest and shoulder area. (Id. ¶ 78.) CBP Officer 

Arpad Domokos was in a primary processing booth when he heard the call for assistance. 

(Id. ¶ 79.) When Domokos arrived at the scene, Domokos heard Youmaran screaming 

“Don’t touch my husband!” (Id. ¶ 80.) Domokos told Youmaran to calm down and tried 

to pull her away from her husband, but Youmaran screamed and grabbed his hand. (Id. at 

8-9 ¶ 81.) Youmaran “jumped up and down,” screamed at the Officers, and told her 

husband to calm down. (Id. at 9 ¶ 82.)

Townsend saw Officer Villa arrive, and he and Villa moved Youmaran away from 

Khalaj. (Id. ¶ 83.) CBP Officer Matthew Gardner also responded to the scene. (Id. ¶ 84.) 

Gardner testified that when he arrived, Khalaj was “struggling on the floor” with two or 

three officers. (Doc. 96-1 at 305.) Gardner testified that the officers were “attempting to 
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gain control and control [Khalaj’s] hands to maneuver him to handcuff him.” (Id.) Gardner 

testified that “there was much struggling going on,” and that what he observed was not 

“simple compliance.” (Id. at 306.) Gardner testified that Khalaj “was not submitting”; 

rather, it appeared to Gardner that Khalaj was “essentially resisting.” (Id.) Gardner then 

holstered his Taser and helped Villa handcuff Youmaran. (Doc. 96 at 9 ¶ 86.)

During the altercation, Khalaj used profanity, such as “Sons of bitches,” and 

“Everyone one [sic] of you are pieces of shit!” (Id. ¶ 88.) Youmaran also used profanity, 

such as “Fucking assholes,” “You get the fuck out of here,” and “Asshole! Fuck off!” (Id.

¶ 89.) Townsend assisted Osorio and Colunga in handcuffing Khalaj on the ground, stood 

him up, and walked him to a holding cell with Osorio. (Id. at 10 ¶ 92.) Gardner and Villa 

escorted Youmaran to the holding cell and sat her down. (Id. ¶ 93.) Once in the cell, CBP 

Officers noticed Youmaran still had her cell phone. (Id. ¶ 94.) The officers did not ask 

Youmaran for the cell phone, and she had not been searched by any officer. (Doc. 110 at 

14 ¶ 6.) Gardner reached behind Youmaran to retrieve the phone from her hands, which 

were behind her back. (Doc. 96 at 10 ¶ 95.) This surprised Youmaran, and she kicked 

Gardner in the leg. (Id.; Doc. 110 at 14 ¶ 6.) Gardner kneed Youmaran in her abdomen 

and neck. (Doc. 110 at 14 ¶ 6.) Villa saw Youmaran kick Gardner and pulled Youmaran 

to the side on the bench. (Doc. 96 at 10 ¶ 97.) Gardner then retrieved Youmaran’s cell 

phone. (Id. ¶ 98.)

C. Discretionary Function Exception

Defendant asserts that the Court lacks subject matter jurisdiction over this case 

because the discretionary function exception under the FTCA bars Plaintiffs’ claims. (Doc. 

95 at 8.) 

1. Legal Standard

It is well-settled that the United States can be sued only to the extent that it has 

waived its sovereign immunity. Conrad v. United States, 447 F.3d 760, 764 (9th Cir. 2006) 

(citation omitted). The FTCA “waives the federal government’s immunity from suit for a 

discrete class of lawsuits.” O’Toole v. United States, 295 F.3d 1029, 1033 (9th Cir. 2002) 
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(citing 28 U.S.C. §§ 2671–2680). The FTCA provides for governmental liability for 

negligent or wrongful acts or omissions of a federal employee acting within the scope of 

his or her employment “if a private person would be liable to the claimant in accordance 

with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b); see 

also 28 U.S.C. § 2674 (“The United States shall be liable . . . relating to tort claims, in the 

same manner and to the same extent as a private individual under like circumstances . . .”); 

O'Toole, 295 F.3d at 1033. The Supreme Court has noted that “[t]he broad and just purpose 

which the statute was designed to effect was to compensate the victims of negligence in 

the conduct of governmental activities in circumstances like unto those in which a private 

person would be liable and not leave just treatment to the caprice and legislative burden of 

individual private laws.” Indian Towing Co. v. United States, 350 U.S. 61, 68 (1955).

The waiver of sovereign immunity under the FTCA is subject to number of 

exceptions. Gen’l Dynamics Corp. v. United States, 139 F.3d 1280, 1283 (9th Cir. 1998). 

“If an exception applies, sovereign immunity is not waived, and no subject matter 

jurisdiction exists.” Id. (citing Sabow v. United States, 93 F.3d 1445, 1451 (9th Cir. 1996)). 

The discretionary function exception to the waiver of sovereign immunity under the 

FTCA precludes tort liability for:

Any 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 

of 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); see also O’Toole, 295 F.3d at 1033.

The discretionary function exception applies when two requirements are met. 

Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008). First, the government’s 

conduct must be discretionary, with no federal statute, regulation, or policy prescribing a 

specific course of action. Id. To be discretionary, the conduct “must involve an element 

of judgment or choice.” GATX/Airlog Co. v. United States, 286 F.3d 1168, 1173 (9th Cir. 
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2002). “In addition to duties prescribed by the common law torts ‘of the place where the 

act or omission occurred,’ federal employees must follow “federal statute[s], regulation[s], 

or polic[ies that] specifically prescribe[ ] a course of action for an employee to follow.” 

Gonzalez v. United States, 814 F.3d 1022, 1027 (9th Cir. 2016) (quoting GATX/Airlog Co., 

286 F.3d at 1173). “In such cases, “the employee has no rightful option but to adhere to 

the directive,” and the discretionary function exception does not apply. GATX/Airlog Co., 

286 F.3d at 1174. “Thus, where conduct violates a mandatory directive and is not ‘the 

product of judgment or choice,’ it is not discretionary.” Gonzalez, 814 F.3d at 1027 

(quoting Berkovitz, 486 U.S. at 536).

Second, the action or decision must involve considerations of public policy. 

Terbush, 516 F.3d at 1129 (citing Berkovitz, 486 U.S. at 536-37). The Court must 

determine whether the judgment or choice at issue “is of the kind that the discretionary 

function exception was designed to shield.” Berkovitz, 486 U.S. at 536. The Court must 

focus “not on the agent’s subjective intent in exercising the discretion conferred by statute 

or regulation, but on the nature of the actions taken and on whether they are susceptible to 

policy analysis.” United States v. Gaubert, 499 U.S. 315, 325 (1991). The challenged 

decision “need not actually be grounded in policy considerations” so long as it is, “by its 

nature, susceptible to a policy analysis.” Miller v. United States, 163 F.3d 591, 593 (9th 

Cir. 1998). The determination of whether given conduct falls within the discretionary 

function exception must focus on the “nature of the conduct, rather than the status of the 

actor.” Gaubert, 499 U.S. at 322. The Supreme Court has also recognized that when a 

statute or regulation allows a federal agent to act with discretion, there is a “strong 

presumption” that the authorized act is based on an underlying policy decision. Id. at 324.

2. Parties’ Contentions

Defendant contends when the Government performs a discretionary function, the 

negligent performance of that function does not invalidate the discretionary function 

exception. (Id. at 9.) Defendant argues that the CBP Officers’ decision that Khalaj could 
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not exit the Customs Area and had to wait for his family and luggage and their actions in 

carrying out that decision was discretionary. (Id. at 10.)

In their Response, Plaintiffs contend that “no written policy exists prohibiting 

departure from the Customs area by one family member separate and apart from other 

family members, all of whom may be identified in a declaration form,” and the “practice” 

most of CBP Officers “described as a policy” was that all family members must leave 

together from the secondary inspection point although they have all cleared the primary 

inspection point. (Doc. 109 at 9.) Plaintiffs assert that the exception to this practice or 

policy was that less than the entire family identified in the declaration form could depart 

the egress area if officers obtained telephone numbers for the other family members. (Id.

at 9-10.) Plaintiffs contend that before Sisson “had a full opportunity to interact” with 

Khalaj after acquiring more information, other CBP officers intervened, “prohibiting the 

follow through, employment of the exception to the policy/practice that all family members 

must depart together.” (Id. at 10.) Thus, Plaintiffs argue, “the first part of the two part 

Gaubert test has not nor can be met.” (Id.)

3. Analysis

As Defendant points out, Plaintiffs fail to address the second prong of the Gaubert

test, and their argument regarding the applicability of the first prong misses the point. (Doc. 

113 at 6.) Acknowledging that there is no written policy prohibiting the CBP Officers’ 

conduct, Plaintiffs attempt to characterize the relevant “policy” that prescribes the CBP 

Officers’ conduct as the unwritten policy or “practice” of requiring all family members to 

leave together from the secondary inspection point. (Doc. 109 at 9.) Plaintiffs then purport 

to identify a lone “exception” to this policy or practice, whereby less than the entire family 

identified in the declaration form could depart the egress area if officers obtained telephone 

numbers for the other family members. (Id.) Plaintiffs’ attempt to distort the testimony to 

fit their argument that the discretionary function exception does not apply is misguided. 

As Defendant points out, the testimony Plaintiffs cite does the opposite of what Plaintiffs 

would like the Court to believe: it establishes that the CBP Officers had a choice whether 
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to allow Khalaj to leave the Customs area, and they exercised discretion not to allow him 

to do so. Even if Sisson intended to make an exception to the general “practice,” that only 

implies that Sisson likewise had a choice whether to apply the general practice. In sum, 

the Court finds that the CBP Officers’ decision not to allow Khalaj to leave the Customs 

area falls within the discretionary function exception. Thus, Plaintiffs’ negligence claim is 

barred.

However, as the Court noted in the April 23, 2020 Order, Plaintiffs’ claims are not 

based solely on the CBP Officers’ decision not to allow Khalaj to leave the Customs area. 

That decision triggered the subsequent events, but that decision alone does not form the 

basis of Plaintiffs’ intentional tort claims of false imprisonment and assault and battery. 

Rather, it was the exercise of discretion that led to the subsequent physical altercation and 

detention of Plaintiffs, which form the basis of Plaintiffs’ intentional tort claims. The 

question, then, is whether the law enforcement proviso applies to those claims, and if so, 

whether the law enforcement proviso “trumps” the discretionary function exception to 

permit Plaintiffs’ intentional tort claims to proceed.

D. Law Enforcement Proviso

1. Legal Standard

Generally, the FTCA does not waive sovereign immunity for intentional tort claims. 

See 28 U.S.C. § 2680(h). However, an exception exists, waiving sovereign immunity, 

where intentional torts are committed by investigative or law enforcement officers acting 

within the scope of their employment. See id. This exception is known as the “law 

enforcement proviso.”

The intentional tort exception “preserves the Government’s immunity from suit for 

‘[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious 

prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with 

contract rights.’” Millbrook v. United States, 569 U.S. 50 (2013) (quoting 28 U.S.C. 

§ 2680(h)). As noted, Congress has carved out an exception to § 2680(h)’s preservation of 

the United States’ sovereign immunity for intentional torts by adding a proviso covering 
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claims that arise out of the wrongful conduct of law enforcement officers. Id. The “law 

enforcement proviso” extends the waiver of sovereign immunity to claims for six 

intentional torts, including assault and battery, that are based on the “‘acts or omissions of 

investigative or law enforcement officers.’” Id. (quoting 28 U.S.C. § 2680(h)). 

The proviso defines “‘investigative or law enforcement officer’” to mean “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.” Id. (quoting 28 U.S.C. 

§ 2680(h)). In Millbrook, the Supreme Court held that “the waiver effected by the law 

enforcement proviso extends to acts or omissions of law enforcement officers that arise 

within the scope of their employment, regardless of whether the officers are engaged in 

investigative or law enforcement activity, or are executing a search, seizing evidence, or 

making an arrest.” Id. at 56. “On its face, the law enforcement proviso applies where a 

claim both arises out of one of the proviso’s six intentional torts [assault, battery, false 

imprisonment, false arrest, abuse of process, or malicious prosecution], and is related to 

the ‘acts or omissions’ of an ‘investigative or law enforcement officer’” . . . who is “acting 

within the scope of his office or employment.” Id. at 55 (quoting 28 U.S.C. § 1346(b)). 

2. Parties’ Contentions in Supplemental Briefs

In its supplemental brief, Defendant argues that the law enforcement proviso does 

not limit the application of the discretionary function exception. (Doc. 116 at 2.) Noting 

the Court’s citation to Nurse v. United States, 226 F.3d 996 (9th Cir. 2000), Defendant 

contends that the Ninth Circuit concluded only that the plaintiff’s false imprisonment, 

invasion of privacy, and negligence claims against federal agents did not appear, at that 

stage of the proceedings, to be protected by the discretionary function exception. (Id. at 2-

3.) Defendant further observes that the Ninth Circuit’s review in that case was based on 

the pre-answer motion to dismiss filed by the United States before any discovery had been 

conducted. (Id. at 3.) 

Plaintiffs argue in their supplemental brief that the Supreme Court’s decision in 

Millbrook “broadened the law enforcement proviso that extends the waiver of sovereign 
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immunity to acts or omissions of law enforcement officers acting within the scope of their 

employment regardless of whether they are specifically engaged in investigative or law 

enforcement activity.” (Doc. 115 at 2.) Plaintiffs assert that “there is no clash as to the 

applicability of 28 U.S.C. § 2680(h) versus 28 U.S.C. § 2680(a), relating to discretionary 

function” because the Supreme Court in Millbrook made clear that § 2680(h) “is in fact not 

subject to an exception to the FTCA when a federal law enforcement officer is acting within 

the scope of employment and accused of intentional torts.” (Id.) 

3. Analysis

In “interpreting the interplay of section 2680(h) and the FTCA exceptions,” the 

Ninth Circuit has been clear that if the Government shows that the tortious conduct alleged 

under section 2680(h) is exempt under one of the FTCA’s enumerated exceptions to 

liability, then the plaintiff’s claim is barred. Gasho v. United States, 39 F.3d 1420, 1433

(9th Cir. 1994) (dismissing, in part, claims filed pursuant to law enforcement proviso 

because alleged conduct fell within either the FTCA exception exempting liability 

regarding detention of goods by customs agents and other alleged conduct fell within the 

discretionary function exception). The Ninth Circuit recognized that such a holding 

“effectively bars any remedy for intentional torts with respect to” conduct falling within 

the FTCA’s enumerated exceptions to liability, “[b]ut statutes waiving the sovereign 

immunity of the United States must be ‘construed strictly in favor of the sovereign.’” Id.

(quoting McMahon v. United States, 342 U.S. 25, 27 (1951), superseded by statute on other 

grounds). The Gasho court concluded that its holding “furthers Congress’ intention in 

creating the” FTCA exemptions from liability. Id.

Likewise, the Ninth Circuit has been clear that the liability created by the law 

enforcement proviso is subject to the FTCA’s discretionary function exception: “If a 

defendant can show that the tortious conduct involves a ‘discretionary function,’ a plaintiff 

cannot maintain an FTCA claim, even if the discretionary act constitutes an intentional tort 

under section 2680(h).” Id. at 1435 (dismissing intentional infliction of emotional 

distress/malicious intent claim regarding agents’ investigation and preparation of case for 
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prosecution because such actions fell within discretionary function exception but declining 

to dismiss intentional infliction of emotional distress claim with regard to “[t]he agents’ 

conduct during the arrest” where question of fact remained whether arresting officers were 

motivated by malice); see also Nurse, 226 F.3d at 1002-03. Thus, Ninth Circuit precedent 

forecloses Plaintiffs’ argument. The Court finds that Plaintiff’s intentional tort claims 

allege conduct that involves a discretionary function, and therefore, the Court lacks subject 

matter jurisdiction over Plaintiffs’ intentional tort claims. 

For the foregoing reasons, the Court will grant Defendant’s Motion to Dismiss for 

lack of subject matter jurisdiction.

IT IS ORDERED:

(1) The reference to the Magistrate Judge is withdrawn as to Defendant’s

Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment (Doc. 95) and 

Plaintiffs’ Motion for Oral Argument (Doc. 111).

(2) Defendant’s Motion to Dismiss, or, in the Alternative, Motion for Summary 

Judgment (Doc. 95) is granted and the Complaint (Doc. 1) and this action are dismissed 

without prejudice for lack of subject matter jurisdiction

(3) Plaintiffs’ Motion for Oral Argument (Doc. 111) is denied as moot.

(4) This action is terminated; the Clerk of Court must enter judgment 

accordingly.

Dated this 24th day of July, 2020.

Honorable Diane J. Humetewa

United States District Judge