11-61 

Liranzo v. United States

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term, 2011

4 (Argued: January 30, 2012 Decided: August 9, 2012)

5 Docket No. 11-61

6 -------------------------------------

7 VITERBO LIRANZO, AKA VITERBO IGNACIO LIRANZO DICENT,

8 Plaintiff-Appellant,

9 - v -

10 UNITED STATES OF AMERICA,

11 Defendant-Appellee.

12 -------------------------------------

13 Before: SACK, RAGGI, and CHIN, Circuit Judges.

14

15 Appeal by the plaintiff from a judgment of the United

16 States District Court for the Eastern District of New York

17 (Sandra J. Feuerstein, Judge) dismissing for lack of subject

18 matter jurisdiction the plaintiff's claims relating to his

19 mistaken detention as a removable resident alien. The district

20 court concluded that subject matter jurisdiction was lacking over

21 the plaintiff's Federal Tort Claims Act claims because there was

22 no private analogue to the immigration detention suffered by the

23 plaintiff, as required to find a waiver of the United States'

24 sovereign immunity under the Act. Because we conclude that there
1

In 1996, Congress enacted the Illegal

Immigration Reform and Immigrant

Responsibility Act (IIRIRA), 110 Stat.

3009-546. . . . 

. . . . 

Before IIRIRA's passage, United States

immigration law established "two types of

proceedings in which aliens can be denied the

hospitality of the United States: deportation

hearings and exclusion hearings." Exclusion

hearings were held for certain aliens seeking

2

1 is such an analogue, we vacate the judgment of the district court

2 in part and remand for further proceedings. We affirm the

3 district court's judgment insofar as it dismissed the plaintiff's

4 Fourth Amendment claim, which he does not challenge on appeal.

5 Affirmed in part, reversed in part, and remanded.

6 LAWRENCE K. KATZ, Katz & Kreinces LLP,

7 Mineola, NY, for Plaintiff-Appellant.

8 JAMES H. KNAPP (Margaret M. Kolbe,

9 Varuni Nelson, on the brief), Assistant

10 United States Attorneys, of counsel, for

11 Loretta E. Lynch, United States Attorney

12 for the Eastern District of New York,

13 Brooklyn, NY, for Defendant-Appellee.

14 SACK, Circuit Judge:

15 In March 2006, plaintiff Viterbo Liranzo, a United

16 States citizen, completed a term of incarceration in New York

17 State prison for felony possession of a controlled substance.

18 Before his release, United States Immigration and Customs

19 Enforcement ("ICE") erroneously identified him as a permanent

20 resident alien who had been convicted of a felony, which rendered

him subject to removal.1 21 He was released to the custody of ICE
entry to the United States, and deportation

hearings were held for certain aliens who had

already entered this country. . . . 

. . . . 

In IIRIRA, Congress abolished the distinction

between exclusion and deportation procedures

and created a uniform proceeding known as

"removal." See 8 U.S.C. §§ 1229, 1229a.

Vartelas v. Holder, 132 S. Ct. 1479, 1483-84 (2012) (citations

omitted). In this opinion we therefore use the term "removal"

instead of "deportation." We have not, however, changed the term

"deportation" in quotations of the district court or of either

party.

3

1 and transported to a detention center in Louisiana pending

2 removal. During removal proceedings in Louisiana, it was

3 discovered that Liranzo is a U.S. citizen, and he was therefore

4 released. 

5 Thereafter, Liranzo brought the instant complaint in

6 the United States District Court for the Eastern District of New

7 York against the United States under the Federal Tort Claims Act

8 ("FTCA" or the "Act") alleging, inter alia, that federal

9 immigration officials had falsely arrested and imprisoned him. 

10 Following some two years of discovery, the matter was set for

11 trial. But before trial began, the district court (Sandra J.

12 Feuerstein, Judge) granted the government's motion to dismiss the

13 case for lack of subject matter jurisdiction because, the court

14 concluded, there was no private analogue to the immigration

15 detention suffered by plaintiff, as required for the Act to have
2

 The material facts relevant to the issue on appeal are

not in dispute. The facts are drawn from the record in the

district court, the parties' representations before this Court,

and the parties' pre-trial statement of stipulated facts. See

Am. Proposed Pre-Trial Order at 1-3, Liranzo v. United States,

No. 08 Civ 2940 (SJF)(ARL) (E.D.N.Y. July 8, 2010), ECF No. 31. 

4

1 worked a waiver of the United States' sovereign immunity from

2 suit. 

3 Inasmuch as we conclude that there is such an analogue,

4 we reverse and remand for further proceedings. We affirm the

5 district court's judgment insofar as it dismissed the plaintiff's

6 Fourth Amendment claim, which he does not challenge on appeal.

BACKGROUND2 7

8 Liranzo's Citizenship

9 Plaintiff Viterbo Liranzo was born on May 10, 1955, in

10 the Dominican Republic. He entered the United States as a lawful

11 permanent resident in 1965 when he was ten years old. On

12 February 24, 1972, pursuant to a Dominican divorce decree, the

13 plaintiff's mother, Augustina Dicent, was awarded custody of

14 Liranzo. On October 6, 1972, when Liranzo was sixteen years old,

15 his mother became a naturalized U.S. citizen. Because he was a

16 lawful permanent resident in his mother's custody when she was

17 naturalized, and he was younger than eighteen years old at the

18 time, Liranzo obtained derivative citizenship on that date under

19 the immigration laws then in force. See Immigration and

20 Nationality Act ("INA") § 321(a)(3), 8 U.S.C. § 1432(a)(3)
3 After the events in question, on May 15, 2007, Liranzo

obtained a certificate of citizenship. The government does not

dispute that Liranzo obtained derivative citizenship on October

6, 1972. 

5

1 (repealed 2000) (providing for derivative citizenship upon, inter

2 alia, the "naturalization of the parent having legal custody of

3 the child when there has been a legal separation of the

4 parents").

5 Derivative citizenship under section 321 of the INA was

6 "automatic; that is, when certain conditions exist[ed], a child

7 bec[ame] a U.S. citizen even though neither parent, nor the

8 child, ha[d] requested it." Lewis v. Gonzales, 481 F.3d 125, 131

9 (2d Cir. 2007) (per curiam). Nonetheless, under that regime, the

10 government did not issue a certificate of naturalization to

11 children who obtained derivative citizenship until such a

certificate was sought by the child or a parent.3 12 See 8 C.F.R. §

13 320.3. Thus, apparently because Liranzo did not know he had

14 become a citizen, he continued to renew his "resident alien card"

15 (or "green card") until the mid-1990s. Liranzo's last green card

16 was effective through June 10, 2006. As a result of the

17 renewals, at the time of the events in question, federal

18 immigration records erroneously listed Liranzo as a lawful

19 permanent resident rather than as a citizen. 

20 
4

 Pursuant to the Criminal Alien Program, ICE attempts to

identify removable "aliens who are incarcerated within federal,

state and local prisons and jails" so that it can "process[] the

alien expeditiously and secur[e] a final order of removal for an

incarcerated alien[, ideally] before the alien is released to ICE

custody." Criminal Alien Program, ICE,

http://www.ice.gov/criminal-alien-program/ (last visited July 18,

2012). By identifying removable incarcerated aliens before their

release from prison, ICE endeavors to "decrease[] or eliminate[]

the time spent in ICE custody [prior to the alien's removal] and

reduce[] the overall cost to the federal government." Id. 

6

1 Liranzo's New York State Conviction 

2 and Subsequent Immigration Detention

3

4 In approximately September 2005, Liranzo was convicted

5 of criminal sale of a controlled substance in the fourth degree

6 in violation of New York Penal Law section 220.34 for selling

7 cocaine. He was incarcerated at the Nassau County Correctional

8 Center ("NCCC") in East Meadow, New York. His term of

9 incarceration was scheduled to end on or about March 17, 2006.

10 While Liranzo was serving his sentence, ICE agents

11 identified him as a resident alien convicted of a drug felony

through ICE's Criminal Alien Program.4 12 ICE issued an immigration

13 detainer to NCCC officials requesting that they release Liranzo

14 only into ICE's custody so that he could be removed from the

15 United States. See generally 8 C.F.R. § 287.7(a) (describing the

16 nature and purpose of immigration detainers). Because of the

17 detainer, Liranzo was held at the NCCC for approximately seven

18 days beyond his projected release date.
7

1 According to Liranzo, he was interviewed by an ICE

2 representative at the prison. Liranzo asserts that he told the

3 ICE representative that he, Liranzo, was a United States Citizen. 

4 Liranzo also alleges that his sister spoke to another ICE

5 representative and provided the representative with Liranzo's

6 mother's naturalization papers. 

7 On or about March 24, 2006, ICE took Liranzo into

8 custody. ICE also served him with a Notice to Appear for removal

9 proceedings, charging him as a removable alien who had committed

10 an aggravated felony. He was first held in an ICE detention

11 facility in Manhattan for some 23 hours, then taken to a facility

12 in Freehold, New Jersey, where he was held for another seven

13 days. Thereafter, he was transported to the Federal Detention

14 Center at Oakdale, Louisiana.

15 Liranzo's removal proceedings, during which he was

16 represented by counsel, began in Oakdale. On May 3, 2006, the

17 proceedings were adjourned to allow Liranzo's attorney to gather

18 documents for the purpose of substantiating Liranzo's claim to

19 citizenship. On or about May 21, 2006, his attorney filed a

20 motion to terminate the proceedings supported by Liranzo's birth

21 certificate and his mother's naturalization certificate and

22 divorce decree.

23 Thereafter, government officials investigated the

24 validity of Liranzo's mother's divorce decree and her award of
8

1 custody of Liranzo to determine whether he would have met the

2 applicable requirements for derivative citizenship. These issues

3 were determined in Liranzo's favor on or about June 21, 2006.

4 On June 30, 2006, ICE released Liranzo. He was taken

5 to a bus terminal in Louisiana, where he arranged for his own

6 transportation back to New York City. With ICE's consent,

7 removal proceedings were formally terminated on or about July 20,

8 2006.

9 District Court Proceedings

10 After exhausting his administrative remedies by filing

11 a claim with the Department of Homeland Security, Liranzo filed

12 the instant complaint in the United States District Court for the

13 Eastern District of New York against the United States on July

14 18, 2008. He sought five million dollars in damages for "false

15 arrest and imprisonment" and other torts allegedly committed by

16 government officials in connection with his immigration

17 detention. On February 6, 2009, the United States answered the

18 complaint, elliptically asserting as one of its defenses that

19 Liranzo's claims were "subject to, and limited by," the FTCA. 

20 Am. Answer at 4, Liranzo v. United States, No. 08 Civ. 2940

21 (SJF)(ARL) (E.D.N.Y. Feb. 6, 2009), ECF No. 9. After nearly two

22 years of discovery, a bench trial was scheduled to begin on
5

 With exceptions not relevant here, jury trials are not

available to plaintiffs bringing claims against the United States

under the FTCA. See 28 U.S.C. § 2402.

9

December 13, 2010.5 1 No motion to dismiss was made, and no

2 motions for summary judgment were made by either party.

3 Federal Rule of Civil Procedure 12(h)(3) provides that

4 "[i]f the court determines at any time that it lacks

5 subject-matter jurisdiction, the court must dismiss the action." 

6 FED. R. CIV. P. 12(h)(3); see also Weinstein v. Iran, 609 F.3d 43,

7 47 (2d Cir. 2010) ("[S]ubject matter jurisdiction may be raised

8 at any point . . . ."), cert. denied, --- S. Ct. ----, No. 10-

9 947, 2012 WL 2368690, 2012 U.S. LEXIS 4760 (June 25, 2012). On

10 December 8, 2010, just five days before the scheduled start of

11 the bench trial, the government submitted a letter motion seeking

12 dismissal of the complaint for lack of subject matter

13 jurisdiction. The government premised its motion on the

14 defendant's sovereign immunity from suit based on the limited

15 nature of the FTCA's waiver of that sovereign immunity. See Wake

16 v. United States, 89 F.3d 53, 57 (2d Cir. 1996) ("Absent a

17 waiver, sovereign immunity shields the federal Government and its

18 agencies from suit. Thus, sovereign immunity is jurisdictional

19 in nature.") (ellipsis, brackets, and internal quotation marks

20 omitted). The waiver extends only to claims for which a private

21 analogue exists -- that is, the waiver extends only to claims

22 that could be brought against a "private individual under like
10

1 circumstances," 28 U.S.C. § 2674 –- permitting the government to

2 be held liable only "under circumstances where the United States,

3 if a private person, would be liable to the claimant in

4 accordance with the law of the place where the act or omission

5 occurred," id. § 1346(b)(1). 

6 The government's "chief legal argument" was that there

7 was no private analogue to immigration detentions because

8 "citizenship determinations and immigration matters are federal

9 functions reserved to the federal government, and, . . . because

10 a private individual cannot engage in such determinations, the

11 United States has not waived sovereign immunity on claims related

12 thereto." Def.'s Reply Letter Br. at 1, Liranzo v. United

13 States, No. 08 Civ. 2940 (SJF)(ARL) (E.D.N.Y. Dec. 14, 2010), ECF

14 No. 38 ("Def.'s Reply Letter Br.") (emphasis in original). 

15 Although the government acknowledged that the FTCA

16 explicitly permits claims for false imprisonment to be brought

17 against the United States based on the acts of federal law

18 enforcement agents, see 28 U.S.C. § 2680(h) (waiving sovereign

19 immunity for claims against "investigative or law enforcement

20 officers of the United States Government . . . arising . . . out

21 of assault, battery, false imprisonment, false arrest, abuse of

22 process, or malicious prosecution"), the government urged the

23 district court to "look beyond the labels attached by Plaintiff

24 to his claims." Def.'s Letter Br. at 3, Liranzo v. United
11

1 States, No. 08 Civ. 2940 (SJF)(ARL) (E.D.N.Y. Dec. 8, 2010), ECF

2 No. 35 ("Def.'s Letter Br."). According to the government,

3 despite the label, Liranzo's claims "arise[] from the ICE agents'

4 alleged negligent/erroneous citizenship determination of

5 Plaintiff and their resultant attempts to apply federal

6 immigration statutes to effectuate his deportation." Id.

7 Further, the government asserts, Liranzo "attempt[ed] to cloth[e]

8 'federal function tort claims' (over which the United States has

9 not waived sovereign immunity) in 'law enforcement intentional

10 tort' garb (over which the United States has waived sovereign

11 immunity)." Def.'s Reply Letter Br. at 2.

12 Liranzo responded that "[h]ad a private individual held

13 plaintiff prisoner for 105 days, New York would allow plaintiff

14 to recover." Pl.'s Letter Br. at 1-2, Liranzo v. United States,

15 No. 08 Civ. 2940 (SJF)(ARL) (E.D.N.Y. Dec. 9, 2010), ECF No. 36. 

16 Therefore, Liranzo argued, a private analogue to the claims

17 asserted in the complaint existed. 

18 By memorandum and order dated December 15, 2010, the

19 district court dismissed the action for lack of subject matter

20 jurisdiction pursuant to Rule 12(h)(3). It reasoned that

21 "[i]mmigration and detention pending deportation are governed

22 exclusively by federal law and therefore have no private

23 analogue." Mem. & Order at 9, Liranzo v. United States, No. 08

24 Civ. 2940 (SJF)(ARL) (E.D.N.Y. Dec. 15, 2010), ECF. No. 41 ("Mem.
12

1 & Order"). It also read this Court's precedents, including Caban

2 v. United States, 671 F.2d 1230 (2d Cir. 1982) ("Caban I"), and

3 Caban v. United States, 728 F.2d 68 (2d Cir. 1984) ("Caban II"),

4 as indicating that for FTCA purposes, there is no private

5 analogue for federal immigration detentions. It concluded that,

6 "[a]s plaintiff's intentional tort claims are based upon the

7 detention of plaintiff pending deportation proceedings and the

8 process the immigration agents used to determine his citizenship

9 status, plaintiff has not established that a comparable cause of

10 action would exist against a private individual pursuant to New

11 York State law." Mem. & Order at 10. 

12 Liranzo appealed from the judgment of dismissal. 

13 DISCUSSION

14 When reviewing the dismissal of a complaint for lack of

15 subject matter jurisdiction, we review factual findings for clear

16 error and legal conclusions de novo, accepting all material facts

17 alleged in the complaint as true and drawing all reasonable

18 inferences in the plaintiff's favor. Morrison v. Nat'l Austl.

19 Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff'd on other

20 grounds, 130 S. Ct. 2869 (2010). "The plaintiff bears the burden

21 of proving subject matter jurisdiction by a preponderance of the

22 evidence." Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d

23 635, 638 (2d Cir. 2005). The United States' waiver of immunity

24 under the FTCA "is to be strictly construed in favor of the
6

 The United States' sovereign immunity from suit is

ultimately derived from English common law. "While the political

theory that the King could do no wrong was repudiated in America,

a legal doctrine derived from it that the Crown is immune from

any suit to which it has not consented was invoked on behalf of

the Republic and applied by our courts as vigorously as it had

been on behalf of the Crown." Feres v. United States, 340 U.S.

135, 139 (1950) (footnote omitted).

7

 Prior to the passage of the FTCA in 1946, if a private

individual was injured by a federal employee, he could only seek

relief from the federal government by petitioning Congress to

pass a "private bill" compensating him for his injuries.

Relief was often sought and sometimes granted

through private bills in Congress, the number

of which steadily increased as Government

activity increased. The volume of these

private bills, the inadequacy of

congressional machinery for determination of

facts, the importunities to which claimants

subjected members of Congress, and the

capricious results, led to [the passage of

13

1 government." Long Island Radio Co. v. NLRB, 841 F.2d 474, 477

2 (2d Cir. 1988).

3 I. The FTCA's Private Analogue Requirement

4 "'The United States, as sovereign, is immune from suit

5 save as it consents to be sued . . . , and the terms of its

6 consent to be sued in any court define that court's jurisdiction

7 to entertain the suit.'" United States v. Mitchell, 445 U.S.

8 535, 538 (1980) (quoting United States v. Sherwood, 312 U.S. 584,

586 (1941)) (brackets omitted).6 9 In 1946, Congress enacted the

10 Federal Tort Claims Act, which "constitutes a limited waiver by

11 the United States of its sovereign immunity and allows for a tort

suit against the United States under specified circumstances."7 12
the FTCA in 1946, in which the

government] . . . waived immunity and

transferred the burden of examining tort

claims to the courts. 

Feres, 340 U.S. at 140; see also Erwin Chemerinsky, FEDERAL

JURISDICTION 663 (6th ed. 2012). The FTCA put an end to the

"notoriously clumsy" "private bill device." Dalehite v. United

States, 346 U.S. 15, 24-25 (1953), abrogation recognized by

Rayonier Inc. v. United States, 352 U.S. 315, 319 (1957). 

14

1 Hamm v. United States, 483 F.3d 135, 137 (2d Cir. 2007)

2 (quotation marks omitted). The FTCA provides jurisdiction in the

3 federal courts and waives the sovereign immunity of the United

4 States for 

5 claims against the United States, for money

6 damages . . . for . . . injury or loss of

7 property, or personal injury or death caused

8 by the negligent or wrongful act or omission

9 of any employee of the Government while

10 acting within the scope of his office or

11 employment, under circumstances where the

12 United States, if a private person, would be

13 liable to the claimant in accordance with the

14 law of the place where the act or omission

15 occurred. 

16

17 28 U.S.C. § 1346(b)(1); see also 28 U.S.C. § 2674 ("The United

18 States shall be liable, respecting the provisions of this title

19 relating to tort claims, in the same manner and to the same

20 extent as a private individual under like circumstances.").

21 As originally enacted, the FTCA barred all suits

22 against the government "arising out of . . . false

23 imprisonment[ and] false arrest." 28 U.S.C. § 2680(h) (1970). 

24 But in 1974, Congress enacted amendments to the FTCA principally
8 "'[I]nvestigative or law enforcement officer' means 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." 28 U.S.C. § 2680(h). 

9 The FTCA's jurisdictional provision, 28 U.S.C. § 1346(b),

as well as the FTCA's procedural provisions, which include the

private analogue requirement set forth in 28 U.S.C § 2674,

"apply" to the 1974 amendments' waiver of sovereign immunity for

the enumerated intentional torts. See 28 U.S.C. § 2680(h).

15

1 in response to abuses committed by federal law enforcement

2 officers in connection with "no-knock" drug raids in

3 Collinsville, Illinois, in which officers raided the wrong

4 families' homes. See generally Stanton R. Gallegos, Note, Are

5 Police People Too? An Examination of the Federal Tort Claims

6 Act's "Private Person" Standard as it Applies to Federal Law

7 Enforcement Activities, 76 BROOK. L. REV. 775, 780-82 (2011). 

8 Under the 1974 amendments, the FTCA explicitly waives sovereign

9 immunity "with regard to acts or omissions of investigative or

law enforcement officers of the United States,"8 10 for "any claim

11 arising . . . out of assault, battery, false imprisonment, false

arrest, abuse of process, or malicious prosecution."9 12 28 U.S.C.

13 § 2680(h).

14 By waiving sovereign immunity "under circumstances

15 where the United States, if a private person, would be liable to

16 the claimant in accordance with the law of the place where the

17 act or omission occurred," id. § 1346(b)(1), the FTCA directs

18 courts to consult state law to determine whether the government
16

1 is liable for the torts of its employees. See FDIC v. Meyer, 510

2 U.S. 471, 478 (1994) ("[The] law of the State [is] the source of

3 substantive liability under the FTCA."); Feres, 340 U.S. at 142

4 ("This provision recognizes and assimilates into federal law the

5 rules of substantive law of the several states . . . ."). The

6 FTCA does not waive sovereign immunity for claims based solely on

7 alleged violations of federal law. Meyer, 510 U.S. at 478. 

8 "[T]he Act requires a court to look to the state-law

9 liability of private entities, not to that of public entities,

10 when assessing the Government's liability under the FTCA [even]

11 in the performance of activities which private persons do not

12 perform." United States v. Olson, 546 U.S. 43, 46 (2005)

13 (internal quotation marks omitted). It does not waive sovereign

14 immunity for claims against the government based on governmental

15 "action of the type that private persons could not engage in and

16 hence could not be liable for under local law." Chen v. United

17 States, 854 F.2d 622, 626 (2d Cir. 1988) (internal quotation

18 marks omitted).

19 The path of the case law on the FTCA's private analogue

20 requirement is long, winding, and sparsely marked. We therefore

21 think a rehearsal of the history of that case law may be helpful.

22 A. The Supreme Court's Private Analogue Jurisprudence

23 In Feres, one of the Supreme Court's early FTCA cases,

24 the Court considered the private analogue requirement as applied
17

1 to servicemen injured in active duty "due to negligence of others

2 in the armed forces." 340 U.S. at 138. In the consolidated

3 cases comprising Feres, one plaintiff was killed in an army

4 barracks fire, one plaintiff had a towel left in his abdomen

5 following surgery performed by an Army doctor, and another

6 plaintiff died following surgery performed by Army surgeons, all

7 allegedly resulting from negligence of Army personnel. Id. at

8 136-37. All three (or their respective estates) sought damages

9 under the FTCA. Id.

10 In considering whether the FTCA waived the United

11 States' sovereign immunity for the plaintiffs' claims, the Court

12 conceded that "[i]n the usual civilian doctor and patient

13 relationship, there is of course a liability for malpractice. 

14 And a landlord would undoubtedly be held liable if an injury

15 occurred to a tenant as the result of a negligently maintained

16 heating plant." Id. at 142. But the Court reasoned that such

17 analogies are sound only if one "consider[s] relevant only a part

18 of the circumstances and ignore[s] the status of both the wronged

19 and the wrongdoer." Id. Under the FTCA, "the liability assumed

20 by the Government . . . is that created by 'all the

21 circumstances,' not that which a few of the circumstances might

22 create." Id. 

23 The Feres Court concluded that "there [was no]

24 liability 'under like circumstances,' for no private individual
18

1 has power to conscript or mobilize a private army with such

2 authorities over persons as the Government vests in echelons of

3 command." Id. at 141-42. 

4 The relationship between the Government and

5 members of its armed forces is 'distinctively

6 federal in character' . . . . To whatever

7 extent state law may apply to govern the

8 relations between soldiers or others in the

9 armed forces and persons outside them or

10 nonfederal governmental agencies, the scope,

11 nature, legal incidents and consequence of

12 the relation between persons in service and

13 the Government are fundamentally derived from

14 federal sources and governed by federal

15 authority. 

16 Id. at 143-44. Thus, because "the relationship of military

17 personnel to the Government has been governed exclusively by

18 federal law," id. at 146, "the Government is not liable under the

19 Federal Tort Claims Act for injuries to servicemen where the

20 injuries arise out of or are in the course of activity incident

21 to service," id.

22 But just five years later, the Court adopted a broader

23 view of the private analogue requirement, albeit in a non24 military context. In Indian Towing Co. v. United States, 350

25 U.S. 61 (1955), the plaintiff's tug boat went aground after the

26 battery in a lighthouse operated by the Coast Guard ran out of

27 power. Id. at 62. Indian Towing brought a negligence claim

28 against the Coast Guard under the FTCA based on the failure of

29 its employees to maintain the lighthouse in working order. Id.

30 at 61-62. The government argued that the private analogue
19

1 requirement "must be read as excluding liability in the

2 performance of activities which private persons do not

3 perform[,] . . . [i.e.,] 'uniquely governmental functions.'" Id.

4 at 64. Because only the Coast Guard operated lighthouses, the

5 government argued that this function was uniquely governmental,

6 and that no private analogue existed. Id. 

7 The Court rejected the government's proposed test for

8 liability on the ground that "all Government activity is

9 inescapably 'uniquely governmental' in that it is performed by

10 the Government." Id. at 67. Conversely, "it is hard to think of

11 any governmental activity on the 'operational level,' our present

12 concern, which is 'uniquely governmental,' in the sense that its

13 kind has not at one time or another been, or could not

14 conceivably be, privately performed." Id. at 68.

15 The Court also observed that the statutory phrase

16 "under like circumstances" does not mean "under the same

17 circumstances." Id. at 64 (emphases added). The fact that there

18 were no private lighthouses in operation at the time did not mean

19 that there was no private analogue. 

20 [I]f the United States were to permit the

21 operation of private lighthouses -- not at

22 all inconceivable -- the Government's basis

23 of differentiation would be gone and the

24 negligence charged in this case would be

25 actionable. Yet there would be no change in

26 the character of the Government's activity[,]

27 . . . and [it is unlikely that Congress

28 would] predicat[e] liability on such a
20

1 completely fortuitous circumstance -- the

2 presence of identical private activity. 

3 Id. at 66-67.

4 The Court concluded that the relevant private analogue

5 at issue was the duty imposed on the private "good Samaritan": 

6 "[O]ne who undertakes to warn the public of danger and thereby

7 induces reliance must perform his 'good Samaritan' task in a

8 careful manner." Id. at 64-65. "The Coast Guard need not

9 undertake the lighthouse service. But once it exercised its

10 discretion to operate [the] light . . . and engendered reliance

11 on the guidance afforded by the light, it was obligated to use

12 due care to make certain that the light was kept in good working

13 order . . . ." Id. at 69. Because of the existence of this

14 private analogue, "[i]f the Coast Guard failed in its duty and

15 damage was thereby caused to petitioners, the United States is

16 liable under the Tort Claims Act." Id.

17 Rayonier Inc. v. United States, 352 U.S. 315 (1957)

18 signaled a further narrowing of the Court's view of Feres's

19 reasoning. There, the plaintiffs alleged that their property was

20 damaged by the United States Forest Service's negligent failure

21 to control a forest fire. Id. at 315-16. The government argued

22 that there was no private analogue because "neither the common

23 law nor the law of [the State of] Washington imposes liability on

24 municipal or other local governments for the negligence of their

25 agents acting in the 'uniquely governmental' capacity of public
21

1 firemen." Id. at 318-19. The Court rejected the government's

2 argument because the relevant consideration is whether state law

3 would impose liability on a "private person" rather than on a

4 "municipal corporation or other public body" for "similar

5 negligence" as allegedly committed by the government in the case

6 at hand. Id. at 319. In doing so, the Court disapproved of

7 Dalehite v. United States, 346 U.S. 15, 43-44 (1953), which had

8 relied on Feres and the common law "immunity of . . . public

9 bodies for injuries due to fighting fire" to conclude that there

10 was no private analogue to the Coast Guard's firefighting

11 efforts, id. at 44. See Rayonier, 352 U.S. at 319. The Court

12 remanded for consideration of whether state law would hold a

13 private person fighting a fire in similar circumstances liable. 

14 Id. at 320-21.

15 In United States v. Muniz, 374 U.S. 150 (1963), the

16 Supreme Court continued to constrict the reach of the rationales

17 relied upon in Feres. There, the Court considered whether suit

18 could be brought under the FTCA for "personal injuries sustained

19 during confinement in a federal prison, by reason of the

20 negligence of a government employee." Id. at 150. The

21 government argued that Feres defeated a private analogy, because,

22 among other things, "the relationship between the federal

23 prisoner and his custodians" is "uniquely federal in character." 

24 Br. for United States, United States v. Muniz, 374 U.S. 150
10 The Muniz Court's decision to look to the liability of

jailors and the States that employ them seems to be a departure,

or at least a change in emphasis in a new factual context, from

Indian Towing's and Rayonier's admonition to examine the

liability of private individuals under state law when deciding if

a private analogue exists, rather than the state law liability of

governmental entities. See also infra section II.B (discussing

potential analogies to law enforcement and citizen's arrests).

22

1 (1963), 1963 WL 105602 at *19. A unanimous Court (Justice White

2 not participating) rejected the government's reliance on Feres. 

3 The Court reasoned that "[i]n the last analysis, Feres seems best

4 explained by the peculiar and special relationship of the soldier

5 to his superiors, the effects of the maintenance of such suits on

6 discipline, and the extreme results that might obtain if suits

7 under the Tort Claims Act were allowed for negligent orders given

8 or negligent acts committed in the course of military duty." Id.

9 at 162 (quotation marks and ellipsis omitted). It concluded

10 that, in the context of the federal prison system, "an analogous

11 form of liability exists. A number of States have allowed

12 prisoners to recover from their jailers [and from the States] for

negligently caused injuries."10 13 Id. at 159-60. 

14 Most recently, in a brief unanimous opinion in United

15 States v. Olson, 546 U.S. 43 (2005), the Court reaffirmed the

16 principles recognized in Indian Towing and its progeny. The

17 Court vacated a Ninth Circuit decision in which that court (1)

18 had found "no private-sector analogue for mine inspections," the

19 federal activity about which suit had been brought, id. at 45
23

1 (internal quotation marks omitted), but (2) had concluded that

2 because "unique governmental functions" were at issue and

3 relevant state law imposed liability on "state and municipal

4 entities" under the circumstances, the FTCA waived sovereign

5 immunity, id. (internal quotation marks omitted). The Supreme

6 Court concluded that under its jurisprudence, whether state law

7 imposed such liability on state and municipal entities was

8 irrelevant to the sovereign immunity waiver, id. at 45-46, and

9 that there was indeed a relevant private analogy to the liability

10 of "private persons who conduct safety inspections," id. at 47. 

11 The Court remanded the case with instructions to "the lower

12 courts [to] decide . . . in the first instance" "precisely which

13 [State] law doctrine applie[d]." Id. at 48.

14 B. This Court's Private Analogue

15 Jurisprudence in Non-immigration Cases

16 This Court has had several occasions on which to

17 consider the FTCA's private analogue requirement. In a trilogy

18 of cases decided in the 1980s, we confronted circumstances we

19 concluded were governed exclusively by federal law, were without

20 private analogue, and with respect to which sovereign immunity

21 had therefore not been waived by the FTCA. 

22 In C.P. Chemical Co. v. United States, 810 F.2d 34 (2d

23 Cir. 1987), a producer of formaldehyde-based foam insulation

24 brought suit against the federal government after the Consumer

25 Product Safety Commission announced a ban on the insulation,
24

1 alleging that the Commission was "gross[ly] negligen[t]" in

2 failing to follow proper rulemaking procedures and disseminating

3 false information about the banned insulation. Id. at 35-36. 

4 The Court began by reviewing the legislative history of the FTCA,

5 which expressed a clear desire that the "constitutionality of

6 legislation, or the legality of a rule or regulation, should

7 [not] be tested through the medium of a damage suit for tort." 

8 Id. at 37 (quoting H.R. REP. NO. 79-1287, at 6 (1945)). The court

9 reasoned that "quasi-legislative or quasi-adjudicative action by

10 an agency of the federal government is action of the type that

11 private persons could not engage in and hence could not be liable

12 for under local law." Id. at 37-38 (quoting Jayvee Brand v.

13 United States, 721 F.2d 385, 390 (D.C. Cir. 1983)) (quotation

14 marks and brackets omitted). Because there was "simply no

15 comparable rulemaking activity in private life," we decided that

16 "[t]he Commission's conduct clearly was a quasi-legislative

17 activity for which we find no private counterpart." Id. at 38. 

18 In Chen, a printing company brought FTCA claims against

19 the government based on the General Services Administrations's

20 attempt to suspend and debar the company as a federal contractor. 

21 854 F.2d at 623. Most of the plaintiff's claims were "grounded

22 in alleged negligent and willful violations of federal

23 procurement regulations, specifically, those requiring that a

24 contractor receive notice and a hearing prior to any suspension." 
11 Though Birnbuam predicted that the New York Court of

Appeals would recognize a common law right of privacy, we

subsequently acknowledged that our prophesy had been incorrect,

and found a failure to state a claim under the "same fact

pattern" in Hurwitz v. United States, 884 F.2d 684, 685 (2d Cir.

1989), cert. denied, 493 U.S. 1056 (1990). 

25

1 Id. at 626. We concluded that "violation of the government's

2 duties under federal procurement regulations 'is action of the

3 type that private persons could not engage in and hence could not

4 be liable for under local law.'" Id. at 626 (quoting Jayvee

5 Brand, 721 F.2d at 390). We contrasted Chen's claims with those

6 in Birnbaum v. United States, 588 F.2d 319, 326 (2d Cir. 1978),

7 in which we observed that the "opening and reading of sealed mail

8 by [the Central Intelligence Agency], just as if by [a] private

party, violates [the] common-law right of privacy."11 9 Chen, 854

10 F.2d at 626. We also rejected Chen's proposed private analogue,

11 "wrongful sanctions by private associations against individual

12 members," id., because no such tort liability existed under New

13 York law. Id. at 626-27. 

14 And in Akutowicz v. United States, 859 F.2d 1122 (2d

15 Cir. 1988), the plaintiff brought claims against the government

16 when the State Department decided that he had relinquished his

17 United States citizenship after obtaining French citizenship. 

18 Id. at 1123-25. We noted that "the FTCA does not extend to

19 conduct governed exclusively by federal law, or to conduct of a

20 governmental nature or function, that has no analogous liability
26

1 in the law of torts." Id. at 1125 (quotation marks and citations

2 omitted). We decided that although "the FTCA imposes liability

3 upon the government to the same extent, and in the same manner,

4 as a private individual under 'like,' not identical,

5 circumstances," id. at 1125, "the withdrawal of a person's

6 citizenship constitutes a quasi-adjudicative action for which no

7 private analog exists." Id. at 1126. "[N]o private citizen is

8 empowered to certify the loss of American nationality." Id. at

9 1125. Nor were we willing to "analogize the relationship between

10 the government and its citizens with that between a private

11 association and its individual members," because no "cause of

12 action in tort for alleged misconduct by the association [in

13 improperly expelling one of its members]" existed under state

14 law. Id. at 1126 (quoting Chen, 854 F.2d at 627) (emphasis and

15 quotation marks omitted).

16 C. This Court's Treatment of FTCA

17 Claims Based on Immigration Detentions

18 In 1982 and 1984, respectively, we addressed FTCA

19 claims more similar to those at issue on this appeal -- claims

20 based on an allegedly erroneous immigration detention. In Caban

21 I and II, the plaintiff was stopped at John F. Kennedy

22 International Airport upon arrival from the Dominican Republic. 

23 Caban I, 671 F.2d at 1230. Illiterate, he was unable to provide

24 documentation to substantiate his claims of United States

25 citizenship, and his answers to the INS officers' questions
12 See infra section II.B (discussing the circumstances in

which an arrest can be privileged under New York law).

27

1 regarding his past and citizenship status raised their suspicion

2 (e.g., he denied knowing his own birthdate). Caban II, 728 F.2d

3 at 70. INS agents detained him for six days, after which they

4 determined that he was indeed a citizen. Id. Caban brought

5 claims against the United States for false arrest under the FTCA. 

6 In Caban I, this Court concluded that the FTCA's

7 "discretionary function" exception -- which bars FTCA claims

8 "based upon the exercise or performance or the failure to

9 exercise or perform a discretionary function or duty," 28 U.S.C.

10 § 2680(a) -- did not apply to the INS officers' decision to

11 arrest and detain Caban because the decision did not involve the 

12 "weighing of important policy choices to which discretion is

13 essential." Caban II, 728 F.2d at 70 (describing Caban I). The

14 court remanded for further proceedings, a bench trial was held,

15 and the district court determined that the complaint should be

16 dismissed because the arrest was privileged under the federal

17 standards applicable to immigration officers, a standard

18 incorporated into New York law through its requirement that a

19 plaintiff suing a private individual for false imprisonment

20 establish that his confinement was "not . . . privileged." Id.

at 70-71 (internal quotation marks omitted).12 21 
13 We use the terms "false arrest" and "false imprisonment"

interchangeably. Under New York law, "the tort of false arrest

is synonymous with that of false imprisonment." Posr v. Doherty,

28

1 In Caban II, we affirmed the judgment of the district

2 court in favor of the government, after trial on remand from

3 Caban I. Id. at 75. We first noted that "INS agents are

4 'investigative or law enforcement officers' within the meaning of

5 [28 U.S.C. § 2680(h)]," the provisions of which waives sovereign

6 immunity for, inter alia, false arrest and imprisonment claims

7 against federal "investigative or law enforcement officers." 728

8 F.2d at 72. We then observed that "the reference in § 1346(b)[,

9 the central waiver of immunity provision of the FTCA,] to '[t]he

10 law of the place' means the 'whole law' of the state where the

11 incident took place" -- in that case, the State of New York --

12 including any federal law that state law incorporated. Id.

13 (brackets and some quotation marks omitted). "New York state

14 courts would look to federal principles in determining the

15 standard by which INS officials' detention of a would-be entrant

16 are to be judged." Id. at 73. Because "a person seeking entry

17 into the United States has substantially less right to avoid

18 detention than does a person already lawfully within the United

19 States," id., "far less than [the] probable cause" that is

20 ordinarily required to detain a person will suffice to render the

21 detention privileged under the New York law of false

imprisonment, which incorporates federal standards, id.13 22
944 F.2d 91, 96 (2d Cir. 1991); see also infra note 17

(discussing potentially applicable state law).

29

1 We nonetheless recognized that the FTCA "speaks in

2 terms of the liability, under state law, of 'a private person.'" 

3 Id. at 73. While "[a]n authorized government agent would be

4 privileged . . . to act to protect national borders, . . . it is

5 questionable . . . whether New York would extend that privilege

6 to a private person," id., the issue that was before us under

7 section 1346(b). 

8 We reasoned, however, that even if a private person

9 would be held liable under New York State law, the FTCA only

10 provides for liability "in the same manner and to the same extent

11 as a private individual under like circumstances." 28 U.S.C.

12 § 2674. We then cited Feres for the proposition that "[t]he

13 'like circumstances' language in [section] 2674 means that 'the

14 liability assumed by the Government . . . is that created by 'all

15 the circumstances,' not that which a few of the circumstances

16 might create.'" Id. at 73-74 (quoting Feres, 340 U.S. at 142). 

17 [I]mmigration officers are accorded a special

18 status by law which requires them to detain

19 persons in situations also outlined by law. 

20 These circumstances are far different from

21 those in which a person who is either thought

22 to have committed a crime or thought to be an

23 alien is detained by a private individual. 

24 

25 Id. at 74 (citing Feres, 340 U.S. at 141-42). 
30

1 We concluded that the "interplay among" the "like

2 circumstances" language in section 2647, "the government's

3 privilege to protect the border, and New York's recognition that

4 a privileged detention does not result in liability for false

5 imprisonment" required that "[t]he liability of the

6 government . . . be assessed in light of the liability New York

7 would impose upon one having a privilege to detain a would-be

8 entrant who did not satisfactorily establish his right to enter,"

9 that is, in "conformance with the federal standards regarding

10 treatment of applicants for entry to the United States." Id. at

11 74 (quotation marks omitted). We therefore affirmed the district

12 court's ruling that under New York law, the government employees

13 who detained Caban had a "privilege to detain" him under the

14 circumstances at bar, and therefore their employer, the United

15 States, would not be liable for false imprisonment for the

16 privileged behavior. Id. at 74-75.

17 Judge Cardamone, concurring in the judgment, questioned

18 the majority's reasoning. Although he agreed that federal

19 standards applicable to immigration officers should be used to

20 assess liability, he noted the potential for confusion created by

21 the majority's citation to the "like circumstances" language of

22 section 2674 and Feres. Id. at 76 (Cardamone, J., concurring in

23 the judgment). Judge Cardamone thought the majority's reliance

24 on Feres was "ill-advised" because "[t]he Feres doctrine plainly
31

1 does not deal with substantive tort law principles" such as were

2 at issue in Caban II, "but is concerned solely with . . . [the]

3 threshold jurisdictional question" of whether a private analogue

4 exists. Id. 

5 II. Analysis

6 A. The Meaning of Caban II

7 Before the district court, Liranzo relied on Caban II

8 for the proposition that the United States waives its sovereign

9 immunity for FTCA claims arising from immigration detentions. 

10 The district court disagreed, deciding that "Caban II does not

11 require an examination of every challenged deportation proceeding

12 to determine whether a plaintiffs claim has a private analogue. 

13 Where, as here, the conduct challenged by the plaintiff is

14 exclusively governed by federal law, the FTCA does not waive

15 sovereign immunity." Mem. & Order at 10. The district court

16 relied on Caban II's statement that immigration officers are

17 "accorded a special status" "unlike any in which a private

18 individual could be involved," id. at 9 (quoting Caban II, 728

19 F.2d at 74; internal quotation marks omitted), to find the

20 absence of a private analogue and subject matter jurisdiction

21 over Liranzo's claims.

22 The reasoning in Caban II is complex. Perhaps as a

23 result, courts have diverged in their reading of the case. Some,

24 such as the district court in this case, view Caban II as
14 See also Doe v. United States, 58 F.3d 494, 502 (9th Cir.

1995) (construing Caban II as holding that "immigration officers

have materially different duties than do private citizens, and

therefore no FTCA liability exists, even if a private person

could be liable for wrongfully detaining plaintiff"); Woodbridge

Plaza v. Bank of Irvine, 815 F.2d 538, 543 (9th Cir. 1987)

(same), superseded by statute on other grounds as stated in

Senior Unsecured Creditors' Comm. of First RepublicBank Corp. v.

FDIC, 749 F.Supp. 758, 773 (N.D. Tex. 1990); Lippman v. City of

Miami, 622 F. Supp. 2d 1337, 1341 (S.D. Fla. 2008) (same);

Schalliol v. Fare, 206 F. Supp. 2d 689, 695 n.24 (E.D. Pa. 2002)

(same).

15 See Rhoden v. United States, 55 F.3d 428, 431 (9th Cir.

1995) (per curiam); Munyua v. United States, No. 03 Civ. 04538

(EDL), 2005 WL 43960, at *4, 2005 U.S. Dist. LEXIS 11499, at *12-

*13 (N.D. Cal. Jan. 10, 2005) ("[T]he Caban case does not support

the sweeping conclusion that there is no jurisdiction under the

FTCA here . . . ."); Nguyen v. United States, No. 00 Civ. 528-R,

2001 WL 637573, at *8-*9, 2001 U.S. Dist. LEXIS 7512, at *26-*28

(N.D. Tex. June 5, 2001) ("Caban indicates that a lawful

detention can become unlawful at the point at which the INS's

decision to continue the detention is no longer reasonable."),

aff'd on other grounds, 65 F. App'x 509 (5th Cir. 2003); Tovar v.

United States, No. 98 Civ. 1682, 2000 WL 425170, at *7, 2000 U.S.

Dist. LEXIS 5044, at *23-*24 (N.D. Tex. Apr. 18, 2000) (Caban II

applied a federal standard to the merits of Caban's claim),

aff'd, 244 F.3d 135 (5th Cir. 2000) (unpublished table decision);

32

1 authority for the proposition that the United States has not

2 waived sovereign immunity for immigration detention claims

because there is no relevant private analogue.14 3 This may arise

4 from the Caban II majority's citation to Feres, a case

5 considering only whether a private analogue existed, as authority

6 for judging federal immigration officers' conduct under a federal

7 rather than state standard. But other courts have -- in our view

8 correctly -- read Caban II as a case about the substantive

9 standard by which immigration officers' acts are to be judged --

not about the presence or absence of a private analogue.15 10 The
Garza v. United States, 881 F. Supp. 1103, 1106 (S.D. Tex. 1995)

(describing Caban II as concluding that the "INS officer's

detention of [Caban, who was] entering country[, was] privileged

under New York law"); Gallegos v. Haggerty, 689 F. Supp. 93, 105

(N.D.N.Y. 1988) (denying the government's motion for summary

judgment on the merits of plaintiffs' FTCA claim); Saldana v.

United States, No. L-83-46, 1985 WL 5997, at *4 n.2, 1985 U.S.

Dist. LEXIS 14091, at *14 n.2 (S.D. Tex. Nov. 7, 1985) ("This

Court prefers the conceptual approach in the concurring opinion

of Judge Cardamone in Caban [to the question of what standard to

apply to the merits of FTCA claims related to immigration

detentions] rather than that in the majority opinion of Judge

[Kearse], but the result is the same under either approach.").

 Another judge of the Eastern District of New York has

explicitly disagreed with the district court's reading of Caban

II here. Nakamura v. United States, No. 10 Civ. 2797 (FB)(RML), 

2012 WL 1605055, at *3, 2012 U.S. Dist. LEXIS 64630, at *8

(E.D.N.Y. May 8, 2012) ("Contrary to the outcome of Liranzo and

defendant's arguments, Caban II does not stand for the sweeping

proposition that the actions of immigration agents in detaining a

person never have a private analogue, and that sovereign immunity

is never waived in such cases."). 

33

1 Caban II court never even considered the FTCA's private analogue

2 requirement, as that issue was simply not before it on appeal. 

3 If indeed the Caban II court had found the absence of a

4 private analogue to immigration detentions, its inquiry would

5 have been at an end because there would have been no waiver of

6 sovereign immunity, and thus no subject matter jurisdiction over

7 Caban's FTCA claims. Instead, the Caban II court considered the

8 substantive standards under which the immigration officials'

9 conduct was to be judged -- an inquiry that would only be

10 necessary, at least in a case in Caban II's posture, if a private

11 analogue existed. See, e.g., Feres, 340 U.S. at 143-44, 146

12 (finding that no private analogue existed, and refraining from
16 Although other courts may have also interpreted Caban II

as concerning the FTCA's private analogue requirement, the

district court's reliance on Caban II to find a lack of subject

matter jurisdiction over an FTCA claim based on an immigration

detention is, as far as we can determine, unique. Cf. Munyua,

2005 WL 43960, at *4, 2005 U.S. Dist. LEXIS 11499, at *11

("Defendant has cited no case, and the Court has found none,

adopting such a sweeping exemption under the FTCA for conduct by

immigration officers like that alleged in this case. To the

contrary, courts have exercised jurisdiction over cases brought

under the FTCA involving misconduct by immigration officers at

the border."). 

34

1 considering the standard to be applied on the merits); see also

2 id. at 141 (stating that generally, "[j]urisdiction is necessary

3 to deny a claim on its merits as matter of law as much as to

4 adjudge that liability exists"). We therefore do not read Caban

5 II as did the district court to indicate that there is no private

6 analogue to immigration detentions.

7 Moreover, the Caban II Court endorsed the district

8 court's statement in the case before it that "the United States

9 [is] not liable to Caban if the INS agents acted in conformance

10 with the federal standards regarding treatment of applicants for

11 entry to the United States." Caban II, 728 F.2d at 74 (emphasis

12 added; quotation marks omitted). That language apparently

13 contemplates a consideration of the facts of a particular

14 immigration detention FTCA claim on the merits, i.e., based on

the particulars of the "INS agents['] act[ions]."16 15 Id.
35

1 B. Whether a Private Analogue Exists in This Case

2 The district court concluded that "[i]mmigration and

3 detention pending deportation are governed exclusively by federal

4 law and therefore have no private analogue." Mem. & Order at 10.

5 Because Liranzo's "intentional tort claims [were] based upon the

6 detention of plaintiff pending deportation proceedings and the

7 process the immigration agents used to determine his citizenship

8 status," the district court found that he had "not established

9 that a comparable cause of action would exist against a private

10 individual pursuant to New York State law." Id. Citing Feres,

11 the government similarly argues that "[r]emoval, and the

12 regulation thereof, are federal functions -- in which private

13 citizens cannot engage -- that are exclusively reserved to [the

14 Department of Homeland Security]." Def.'s Br. 16 (emphasis in

15 original). 

16 To say that the challenged action is one that only the

17 federal government does in fact perform does not necessarily mean

18 that no private analogue exists. Lighthouses, such as the one

19 that was the subject of Indian Towing, were at least at the time

20 operated only by the government. It was a function that "private

21 persons d[id] not perform." 350 U.S. at 64 (quotation marks

22 omitted). But "the presence of identical private activity" was

23 not required to find a private analogue, because the FTCA's

24 statutory phrase "under like circumstances" does not mean "under
36

1 the same circumstances." Id. at 64, 67 (emphases added). Under

2 Olson, we are "require[d] . . . to look further afield" for a

3 private analogue when the government in fact is the only entity

4 that performs the actions complained of. Olson, 546 U.S. at 46. 

5 Similarly, the fact that immigration detentions are

6 "uniquely governmental" does not mean they have no private

7 analogue for present purposes. "[A]ll Government activity is

8 inescapably 'uniquely governmental' in that it is performed by

9 the Government." Indian Towing, 350 U.S. at 67. This

10 consideration led the Indian Towing Court to reject a

11 construction of the Act under which "there would be no liability

12 for negligent performance of 'uniquely governmental functions,'"

13 id. at 64, as such an "exception" to the FTCA's waiver of

14 sovereign immunity would threaten to swallow the waiver entirely.

15 The Supreme Court has provided us with examples of how

16 to heed its admonition to "look further afield," Olson, 546 U.S.

17 at 46, for a private analogue. In Indian Towing and Olson, the

18 proper analogy was that "[p]rivate individuals, who do not

19 operate lighthouses [or inspect mines], nonetheless may create a

20 relationship with third parties that is similar to the

21 relationship between a lighthouse operator and a ship dependent

22 on the lighthouse's beacon[, or a mine inspector and a miner

23 dependent on the inspector faithfully carrying out his duty]." 

24 Id. at 47. 
17 For the purposes of this discussion, we assume New York

law applies because the initial arrest and detention occurred in

New York. We express no opinion as to whether Louisiana law

might apply to some portion of Liranzo's claims based on the time

he was confined in Louisiana. 

37

1 Here, the proper analogy seems to us be a person who,

2 entirely in his or her private capacity, places someone under

3 arrest for an alleged violation of the law -- a so-called

4 "citizen's arrest." Such a person may not execute an arrest

5 absent a legal privilege to do so. To successfully establish a

claim for false arrest and imprisonment under New York law,17 6 a

7 plaintiff must therefore prove that "(1) the defendant intended

8 to confine [the plaintiff], (2) the plaintiff was conscious of

9 the confinement, (3) the plaintiff did not consent to the

10 confinement and (4) the confinement was not otherwise

11 privileged." Caban II, 728 F.2d at 71 (quoting Broughton v.

12 State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310,

13 314, cert. denied, 423 U.S. 929 (1975)) (emphasis added); accord

14 Posr v. Doherty, 944 F.2d 91, 97 (2d Cir. 1991). And under Caban

15 II, whether the ICE agents' actions here were "otherwise

16 privileged" is determined by consulting federal privileges
18 Following the Supreme Court's statement in Olson that "a

court [must] look to the state-law liability of private entities,

not to that of public entities, when assessing the Government's

liability under the FTCA," 546 U.S. at 46, the Court of Appeals

for the Ninth Circuit considered whether cases envisioning the

application of federal privileges in FTCA suits, such as Caban

II, survive Olson. In Tekle v. United States, 511 F.3d 839 (9th

Cir. 2007), a case without a majority opinion as to the FTCA

issue, see id. at 850 n.7, Judge Tashima read Olson to require

the court to hold the IRS officers at issue to the same standards

as a private person executing a citizen's arrest. Id. at 850-54. 

In doing so, Judge Tashima called into question a line of Ninth

Circuit cases relying on Caban II -- including Arnsberg v. United

States, 757 F.2d 971, 978–79 (9th Cir. 1985) and Rhoden, 55 F.3d

at 430-31. Tekle, 511 F.3d at 850-54. Judge Fisher, on the

other hand, refused to read Olson "to support the conclusion that

law enforcement privileges should not be recognized in FTCA

suits, and that federal officers are left only with those

privileges available to private citizens" because "Olson did not

involve such privileges, and . . . the FTCA's text does not

clearly foreclose their availability." Id. at 857 (Fisher, J.,

concurring). Judge Kleinfeld would have found that the FTCA

claim was not preserved for appeal, but if it was, he would have

joined Judge Fisher's concurrence. Id. at 861-62 (Kleinfeld, J.,

concurring).

This case does not require us to reach the issue of

what effect, if any, Olson has on the continuing viability of

Caban II, because the district court dismissed the case for lack

of a private analogue and did not reach the merits. Thus, the

district court did not have the occasion to opine on the

substantive standards applicable to the ICE agents' conduct here,

and we need not reach the issue now. Caban II remains the law of

this Circuit.

38

applicable to federal immigration officers.18 1 Caban II, 728 F.2d

2 at 71.

3 There is some suggestion in the case law that the

4 proper analogy may be to state law enforcement conducted by

5 police officers instead of a citizen's arrest. In Muniz, the

6 Court endorsed a private analogy to the liability of states and

7 state jailors. Muniz, 374 U.S. at 159-60. And at least one
39

1 court, the Northern District of California, has found the analogy

2 to law enforcement persuasive in the context of an FTCA claim

3 based on an immigration detention. See Munyua, 2005 WL 43960, at

4 *4, 2005 U.S. Dist. LEXIS 11499, at *12 ("The fact that the

5 challenged activities took place at the border does not negate

6 the analogy to law enforcement . . . ."). But in Olson, the

7 Court instructed that "a court [must] look to the state-law

8 liability of private entities, not to that of public entities,

9 when assessing the Government's liability under the FTCA . . . ." 

10 546 U.S. at 46 (emphasis added). 

11 Regardless of this ambiguity, in the context of this

12 case, the distinction between analogizing to a citizen's arrest

13 and an officer's arrest is of little moment -- in both cases, the

14 defendant will be liable for false arrest under New York law if

15 the arrest is not privileged. See, e.g., Downs v. Town of

16 Guilderland, 70 A.D.3d 1228, 1232, 897 N.Y.S.2d 264, 268 (3d

17 Dep't 2010) (police officer's arrest privileged for purposes of

18 false arrest claim if officer possessed probable cause to justify

19 arrest), appeal dismissed, 15 N.Y.3d 742, 933 N.E.2d 203, 906

20 N.Y.S.2d 804 (2010); White v. Albany Med. Ctr. Hosp., 151 A.D.2d

21 859, 860, 542 N.Y.S.2d 834, 835 (3d Dep't 1989) ("In New York, a

22 private citizen who makes an arrest does so at his peril; if the

23 person arrested did not in fact commit the crime for which he is

24 arrested, the person who arrests him is liable [for false arrest]
40

1 even if he acts in good faith or has probable cause to make an

2 arrest."). Therefore, either analogue would suffice for present

3 purposes. 

4 The fact that New York law applies different

5 substantive standards to citizens' and officers' arrests, see

6 generally 59 N.Y. JUR. 2D FALSE IMPRISONMENT § 37, is also of no

7 significance for present purposes because, under Caban II --

8 which provides the law of this Circuit -- immigration detentions

9 executed by federal immigration officers are judged under federal

10 standards (subject to the considerations discussed supra note

11 18). 

12 Our conclusion that there is a private analogue to the

13 government behavior at issue here receives further support from

14 the fact that the FTCA explicitly waives sovereign immunity for

15 "any claim" based on the "acts or omissions of investigative or

16 law enforcement officers" "arising . . . out of . . . false

17 imprisonment [and] false arrest." 28 U.S.C. § 2680(h) (emphasis

18 added). The plain language of the statute suggests that the

19 United States has indeed waived its sovereign immunity from suit

20 as to Liranzo's "claim," which "aris[es] . . . out of . . . false

21 imprisonment [and] false arrest." Id. In light of the

22 considerations discussed above, the government's suggestion that

23 we disregard the "false imprisonment" label Liranzo has affixed

24 to his claim so as to find it not to be encompassed by this
41

1 explicit statutory language is unpersuasive. See Def.'s Letter

2 Br. at 3. 

3 Akutowicz is not to the contrary. The district court

4 in this case relied on Akutowicz's reasoning that "the withdrawal

5 of a person's citizenship constitutes a quasi-adjudicative action

6 for which no private analog exists," because "no private citizen

7 is empowered to certify the loss of American nationality," 859

8 F.2d at 1125-26. See Mem. & Order at 9-10. But in Akutowicz,

9 there was no detention. The only action complained of was the

10 removal of the plaintiff's citizenship. Citizenship is a legal

11 status, which only the federal government is capable of altering. 

12 A private individual cannot, without subsequent government

13 action, cause injury to another's citizenship. But a private

14 person is of course capable of falsely arresting another. See

15 generally Caban II, 728 F.2d at 71 (quoting Broughton, 37 N.Y.2d

16 at 456, 373 N.Y.S.2d at 93, 335 N.E.2d at 314)(setting out the

17 elements of a false arrest claim).

18 As for the government's argument that immigration

19 detentions are quintessentially federal and therefore no private

20 analogue exists per Feres and its progeny, see Def.'s Br. 14, 16,

21 although the "[p]ower to regulate immigration is unquestionably

22 exclusively a federal power," DeCanas v. Bica, 424 U.S. 351, 354

23 (1976), superseded by statute on other grounds as stated in

24 Chamber of Commerce of United States v. Whiting, 131 S. Ct. 1968,
42

1 1974-75 (2011), it is not clear that immigration detentions are

2 necessarily and exclusively federal acts. For instance, under

3 current federal immigration law, "State and local law enforcement

4 officials" may be empowered (consistent with state law) to

5 "arrest and detain" aliens in certain circumstances. See 8

6 U.S.C. § 1252c(a); 8 U.S.C. § 1103(a)(10); Arizona v. United

7 States, 132 S. Ct. 2492, 2506 (2012) (describing limited federal

8 statutory authorization for state immigration detentions).

9 The fact that a complained of action occurs in a

10 quintessentially federal context, moreover, does not necessarily

11 mean that no private analogue exists. While the federal military

12 is undoubtedly quintessentially federal, so is the federal prison

13 system. The Supreme Court nonetheless, in Muniz, refused to

14 extend Feres to the latter context. See Muniz, 374 U.S. at 162. 

15 In distinguishing Feres, the Muniz Court minimized Feres's

16 reliance on the fact that the military is quintessentially

17 federal. Id. It reasoned that "[i]n the last analysis, Feres

18 seems best explained by the peculiar and special relationship of

19 the soldier to his superiors, the effects of the maintenance of

20 such suits on discipline, and the extreme results that might

21 obtain if suits under the Tort Claims Act were allowed for

22 negligent orders given or negligent acts committed in the course
19 One commentator has construed the post-Feres case law as

having abandoned reliance on the original rationales articulated

in Feres, and as having replaced them with new rationales for the

"Feres doctrine" barring FTCA claims by active servicemen and -

women. See CHEMERINSKY, supra, at 674-75 ("Interestingly, the

Court's explanation [for the Feres doctrine] has shifted over

time. Originally, in Feres, the Court emphasized that the

government could be held liable under the [FTCA] only for

activities that also are undertaken by private entities . . . . 

But . . . the Supreme Court expressly discarded this limitation

on recovery under the act [in Indian Towing and Rayonier],

permitting suits even for activities done solely by the federal

government. . . . Subsequent to the Feres decision, the Court

began emphasizing a different rationale for precluding recovery

for injuries received incident to military service: the need to

preserve military discipline."). 

43

of military duty."19 1 Id. (quotation marks and ellipsis omitted). 

2 These considerations are not present in the non-military context. 

3 The case before us is thus more closely akin to Muniz than Feres. 

4 In sum, it does not follow from the fact that immigration is a

5 quintessentially federal function that immigration detention is

6 without a private non-federal officer analogue. Even for alleged

7 torts occurring in quintessentially federal contexts, the

8 question remains whether analogous private liability exists under

9 state law -- and here, we conclude that it does. 

10 For these reasons, we conclude that the district court

11 erred in finding that there was no private analogue to Liranzo's

12 claims. We express no view, however, as to Liranzo's argument

13 that he is entitled to a trial on the merits on remand. See

14 Pl.'s Br. 9, 14. We leave it to the district court to consider

15 whether, under the circumstances of this case, his action is
44

1 subject to dismissal on the merits on motion to dismiss or for

2 summary judgment. 

3 C. Liranzo's Fourth Amendment Claim

4 Liranzo has not raised any argument against the

5 district court's dismissal of his separate Fourth Amendment

6 claim. See Mem. & Order at 11. We therefore affirm the district

7 court's ruling in this respect. See Universal Church v. Geltzer,

8 463 F.3d 218, 229 (2d Cir. 2006) ("Generally[,] claims not raised

9 on appeal are deemed abandoned, at least when it is the appellant

10 who fails to do so."). 

11 CONCLUSION

12 For the foregoing reasons, we affirm as to the district

13 court's dismissal of Liranzo's Fourth Amendment claim. We vacate

14 the district court's judgment insofar as it found an absence of

15 subject matter jurisdiction over Liranzo's FTCA claims and remand

16 for further proceedings in the district court. Because the

17 district court did not have the occasion to consider which

18 standard applies on the merits, the district court should

19 consider in the first instance on remand which federal standards

20 govern the determination of whether the government official's

21 actions here were privileged.