Opinion
No. C 11-03165 LB
02-13-2012
HICHAM MESNAOUI, Plaintiff, v. JAMIE BERLOWITZ, et al. Defendants.
ORDER GRANTING (1) DEFENDANT'S MOTION TO SUBSTITUTE AND (2) DEFENDANT'S MOTION TO DISMISS
[Re: ECF No. 19]
I. INTRODUCTION
Pro se plaintiff Hicham Mesnaoui filed suit against two employees of the United States Department of State for violations of multiple international and domestic laws. The United States moved to substitute itself as the proper defendant in the case and also to dismiss Mr. Mesnaoui's complaint with prejudice. Pursuant to Civil Local Rule 7-1(b), the court finds that these matters are suitable for determination without oral argument and vacates the February 16, 2012 hearing. For the reasons stated below, the court GRANTS the United States's motions.
II. BACKGROUND
On June 27, 2011, Mr. Mesnaoui filed suit against Jamie Berlowitz and Christopher Bergaust, both of whom are or were federal employees. Complaint, ECF No. 1. In his complaint, Mr. Mesnaoui alleges that he is a Moroccan citizen; that his ex-wife (Maryam Bint Abrahman) fraudulently secured a passport for their minor child, Selma, from Mr. Bergaust, an employee of the U.S. State Department in Casablanca, Morocco; and that his ex-wife used this fraudulently obtained passport to kidnap Selma and bring her to the United States. See id. at 1-3. It appears from the complaint and attached documents that these events occurred sometime in or before August 2009. See id. at 4-16. Mr. Mesnaoui also alleges that in August 2009 Mr. Berlowitz, an employee of the U.S. State Department in San Francisco, California, took possession of the allegedly fraudulent passport. Id. at 2.
Citations are to the Electronic Case File ("ECF") with pin cites to the electronic page number at the top of the document, not the pages at the bottom.
In so doing, Mr. Mesnaoui alleges that Mr. Berlowitz and Mr. Bergaust violated the "Moroccan nationality code," the United States - Morocco Free Trade Agreement, "international human rights," 18 U.S.C. § 241, and 8 U.S.C. § 1433, and otherwise abused their power. Id. In his prayer for relief, Mr. Mesnaoui seeks $20,000,000 in compensation for the "personal injury of me and my child and my senior parents" as well as various forms of non-monetary relief, including, that the fraudulently obtained passport be returned to him; that he be granted full custody of Selma and be allowed to take her home to Morocco; that the government investigate the forging of the passport; and that the government enforce various criminal, immigration and/or civil rights statutes. Id. at 3.
On December 20, 2011, the United States filed a motion to be substituted as the proper defendant in this action and to dismiss Mr. Mesnaoui's complaint. Motion, ECF No. 15. Mr. Mesnaoui opposed the motion. Opposition, ECF No. 24.
III. DISCUSSION
A. The United States's Motion to Substitute Party
Under the Federal Employees Liability Reform and Tort Compensation Act, otherwise known as the Westfall Act, a federal employee is immune from suit upon certification of the Attorney General that the employee was acting within the scope of his employment. See 28 U.S.C. § 2679(d)(1). As to the events alleged in Mr. Mesnaoui's complaint, the United States Attorney, pursuant to 28 U.S.C. § 2679(d) and 28 C.F.R. § 15.3, has certified that Mr. Berlowitz and Mr. Bergaust were acting within the course and scope of their federal employment. Certification, ECF No. 21. Such a certification is "prima facie evidence that a federal employee was acting in the scope of her employment at the time of the incident." Billings v. United States, 57 F.3d 797, 800 (9th Cir. 1995). Mr. Mesnaoui, as plaintiff, bears the burden of disproving the certification by a preponderance of the evidence. Id. Pauly v. U.S. Dep't of Agric., 348 F.3d 1143, 1150-51 (9th Cir. 2003).
While Mr. Mesnaoui ostensibly opposes the United States's motion to substitute, he provides no evidence, let alone a preponderance of evidence, to disprove the United States Attorney's certification. See Opposition, ECF No. 24 at 3. Accordingly, the court grants the United States's motion. The United States is the only proper defendant, and Mr. Berlowitz and Mr. Bergaust are dismissed from this case. B. The United States's Motion to Dismiss
"The basic rule of federal sovereign immunity is that the United States cannot be sued at all without the consent of Congress." Block v. North Dakota, 461 U.S. 273, 287 (1983) (citations omitted). Thus, "[a]bsent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475 (1994) (citing Loeffler v. Frank, 486 U.S. 549, 554 (1988); Fed. Housing Admin. v. Burr, 309 U.S. 242, 244 (1940)). "Sovereign immunity is jurisdictional in nature. Indeed, the 'terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit.'" Id. (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941), and citing United States v. Mitchell, 463 U.S. 206, 212 (1983) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.").
Thus, in order for Mr. Mesnaoui's claims to be actionable, the claims must be ones for which the United States has waived sovereign immunity. As described above, Mr. Mesnaoui alleges a variety of claims, but none of them are ones for which sovereign immunity has been waived. They are barred for this reason.
Even if sovereign immunity had been waived, his claims would fail for other reasons as well. First, Mr. Mesnaoui alleges a violation of the Moroccan Nationality Code, but this court's jurisdiction is limited to civil actions arising under the Constitution, laws, or treaties of the United States and does not encompass actions arising under the laws of foreign nations. 28 U.S.C. § 1331. Second, Mr. Mesnaoui alleges a violation of the United States - Morocco Free Trade Agreement, but he has no private right of action with respect to this agreement. See United States-Morocco Free Trade Agreement Implementation Act, Pub. L. No. 108-302, § 102(c) 118 Stat. 1103, 1105 (2004) ("No person other than the United States—(1) shall have any cause of action or defense under the Agreement or by virtue of congressional approval thereof; or (2) may challenge, in any action brought under any provision of law, any action or inaction by any department, agency, or other instrumentality of the United States, any State, or any political subdivision of a State, on the ground that such action or inaction is inconsistent with the Agreement."). Third, Mr. Mesnaoui alleges a violation of "international human rights, article 15." This allegation clearly is insufficient, but to the extent Mr. Mesnaoui's is attempting to allege a violation of Article 15 of the University Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (1948), which states that "(1) Everyone has the right to a nationality[ and] (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality," the United States Supreme Court has made clear that "the Declaration does not of its own force impose obligations as a matter of international law." Sosa v. Alvarez-Machain, 542 U.S. 692, 734-35 (2004) (citing Humphrey, "The U.N. Charter and the Universal Declaration of Human Rights," The International Protection of Human Rights 39, 50 (E. Luard ed. 1967)) (footnote omitted). Fourth, Mr. Mesnaoui alleges a violation of 8 U.S.C. § 1433(a)(3), which allows a parent who is a citizen of the United States (or, if the citizen parent has died during the preceding 5 years, a citizen grandparent or citizen legal guardian) to apply for naturalization on behalf of a child born outside of the United States if the child is under the age of eighteen. See 8 U.S.C. § 1433(a)(3). Nowhere in his complaint, though, does he allege that anyone has applied for naturalization for any child. And, fifth, to the extent that Mr. Mesnaoui attempts to bring a claim for violation of 18 U.S.C. § 241, "[this law] provide[s] for criminal prosecution by the government and do[es] not provide a private right of action to individual litigants" like Mr. Mesnaoui. Buza v. California Dept. of Corrections and Rehabilitation, No. 10-CV-00326-LHK, 2010 WL 4316919, at *2 (N.D. Cal. Oct. 27, 2010) (citing Cok v. Cosentino, 876 F.2d 1 (10th Cir. 1989) ("Only the United States as prosecutor can bring a complaint under 18 U.S.C. §§ 241-242."); Haile v. Sawyer, No. C 02-5723 MJJ, 2003 WL 1907661, at *3 (N.D. Cal. Apr. 14, 2003) (dismissing all of Plaintiffs claims under Title 18 because Plaintiff is not authorized to bring claims under criminal statutes)).
It would not be inconceivable, however, that Mr. Mesnaoui's claims for damages might be construed as ones brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), which "provides a limited waiver of the sovereign immunity of the United States for torts committed by federal employees acting within the scope of their employment." Nurse v. United States, 226 F.3d 996, 1000 (9th Cir. 2000) (citing Valdez v. United States, 56 F.3d 1177, 1179 (9th Cir. 1995))."Under the FTCA, the United States may be held civilly liable for the torts of its employees 'in the same manner and to the same extent as a private individual under like circumstances.'" Id. (quoting 28 U.S.C. § 2674). A claim under the FTCA must be:
Indeed, the United States did exactly that in its motion to dismiss. See generally, Motion, ECF No. 19.
[1] against the United States, [2] for money damages, . . . [3] for injury or loss ofMeyer, 510 U.S. at 477. "A claim comes within this jurisdictional grant - and thus is 'cognizable' under § 1346(b) - if it is actionable under § 1346(b). And a claim is actionable under § 1346(b) if it alleges the six elements outlined above." Id. (citing Loeffler, 486 U.S., at 562).
property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, 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).
Here, though, as the United States points out, Mr. Mesnaoui's potential FTCA claim is not one for which a private person could be liable. Under this "private party analog" element, a plaintiff must show that the claim asserted is analogous to a "comparable cause of action against a private individual." C.P. Chemical v. United States, 810 F.2d 34, 37 (2d Cir. 1987). "When considering whether a private analog exists, the issue is not whether a state or other governmental entity would be liable for the conduct alleged, but whether a private individual would be liable under analogous circumstances." Figueroa v. United States, 739 F.Supp.2d 138, 140 (citing United States v. Olson, 546 U.S. 43, 45-46 (2005)). "A comparable claim is stated where an analogy can be drawn between the conduct forming the basis of the claim against the federal government, and that which could form the basis of a cause of action against a private individual." Id. at 141 (citing C.P. Chemical, 810 F.2d at 37).
Determining whether a private analog exists is not as simple as it may seem. As the District Court in Figueroa v. United States, 739 F.Supp.2d 138 (E.D.N.Y. 2010) recently explained:
For example, a comparable private analog is stated where a government employee fails to maintain a safe path of travel at a federal facility. In such a case, the tortious conduct of an individual who fails to maintain his property is analogous to the conduct of the government employee who similarly fails in his duty to maintain safety on government property. See, e.g., Silverman v. United States, 2008 WL 1827920 *11-12 (E.D.N.Y. 2008). On the other hand, no private analog is necessarily stated, for example, where the FTCA claim is based only upon an alleged failure to enforce a Federal statute or government regulation. Chen [v. United States], 854 F.2d [622,] 626[ (2d.Cir. 1988)]. In such a case, no private conduct analogy can be drawn, and the FTCA claim is properly dismissed. See, e.g., Dorking Genetics v. United States, 76 F.3d 1261, 1266 (2d Cir. 1996); Chen, 854 F.2d at 626. No FTCA claim is stated in the latter example because the action forming the basis of the claim, "is action of the type that private persons could not engage in and hence could not be liable for under local law." Chen, 854 F.2d at 626, quoting, Jayvee Brand v. United States, 721 F.2d 385, 390 (D.C. Cir. 1983).Id. at 141. In discussing Figueroa, a court in the Southern District of Ohio also explained that:
The Figueroa court was quick to recognize that the "private party analog" question is fairly nuanced, and that it is not always fatal to an FTCA claim to find that the function performed by the governmental employee is "uniquely governmental." Some activities, such as operating a lighthouse or inspecting a mine for compliance with federal safety regulations, are performed only by governmental officials, but private persons can engage in similar functions such as warning people of dangers or inspecting mines for other purposes. Figueroa, 2010 WL 3704187, *3, citing United States v. Olson, 546 U.S. 43, 126 S.Ct. 510, 163 L.Ed.2d 306 (2005). Indeed, as early as its decision in Indian Towing Co. v. United States, 350 U.S. 61, 64, 76 S.Ct. 122, 100 L.Ed. 48 (1955), the Supreme Court had rejected the notion that the FTCA "must be read as excluding liability in the performance of activities which private persons do not perform." The Court directed the lower courts to look beyond the exact circumstances under which the government employee had acted and to determine if there were "like" circumstances in the private sector where such actions could legitimately form the basis for tort liability.Howard v. U.S. Dist. Court for the Southern Dist. of Ohio, No. 2:10-cv-757, 2011 WL 1043961, at *4 (S.D. Ohio Mar. 17, 2011).
Here, even looking beyond the exact circumstances at hand, the court has been unable to divine a suitable private party analog to Mr. Mesnaoui's claims. As summarized above, he alleges that his ex-wife fraudulently secured a passport for their minor child, Selma, from Mr. Bergaust, in Casablanca, Morocco; and then used this fraudulently obtained passport to kidnap Selma and bring her to the United States. See Complaint, ECF No. 1 at 1-3. Later, Mr. Berlowitz took possession of the allegedly fraudulent passport. Id. at 2. Issuing and confiscating passports, however, are not activities that private persons can engage in. Only the federal government may perform these tasks. See 22 U.S.C. § 211a ("The Secretary of State may grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by diplomatic and consular officers of the United States and by such other employees of the Department of State who are citizens of the United States as the Secretary of State may designate . . . ."); 22 C.F.R. §§ 51.7(a) ("A passport at all times remains the property of the United States and must be returned to the U.S. Government upon demand."), 51.62(a)(2) ("The Department may revoke or limit a passport when . . . [t]he passport has been obtained illegally, fraudulently or erroneously; was created through illegality or fraud practiced upon the Department; or has been fraudulently altered or misused."). Unlike the more difficult cases discussed in Figueroa and Howard, there are no circumstances in the private sector that are "like" those of the State Department in relation to the issuance of passports, and the court is unaware of any case law holding differently. In fact, in the only case the court found involving passport-related FTCA claims, the court concluded that no private party analog existed. See Figueroa, 739 F.Supp.2d at 142 (holding that the conduct forming the basis of Plaintiff's complaint - the allegedly negligent issuance of a passport - lacks a private analog and therefore cannot form the basis of a claim pursuant to the FTCA). Thus, even if the court construed Mr. Mesnaoui's claims as ones brought under the FTCA, they would still fail for this reason.
If that were not enough, "a tort claim [under the FTCA] 'shall be forever barred' unless it is presented 'within two years after such claim accrues.'" Hensley v. United States, 531 F.3d 1052, 1056 (9th Cir. 2008) (quoting 28 U.S.C. § 2401(b)). "As a general rule, a claim accrues 'when a plaintiff knows or has reason to know of the injury which is the basis of his action.'" Id. (quoting Gibson v. United States, 781 F.2d 1334, 1344 (9th Cir. 1986) (internal quotation marks omitted)). Importantly, "the statute of limitations in 28 U.S.C. § 2401(b) is jurisdictional and, consequently, . . . equitable doctrines that otherwise could excuse a claimant's untimely filing do not apply." Marley v. United States, 567 F.3d 1030, 1032 (9th Cir. 2009). Here, all of the conduct alleged by Mr. Mesnaoui occurred in or before August 2009, and there is no allegation or evidence suggesting that Mr. Mesnaoui presented his claim to the State Department by August 2011. In fact, the United States submitted along with its motion a declaration from a State Department employee noting that no administrative claim has even been received from Mr. Mesnaoui. Dantzler Declaration, ECF No. 20 at 1. Without such an allegation or evidence, Mr. Mesnaoui's potential FTCA claim is barred.
Mr. Mesnaoui's potential FTCA claim arguably fails because of the "foreign country exception" as well. "The FTCA's foreign country exception provides that the United States may not be held liable in tort for acts or omissions 'arising in a foreign country.'" Nurse v. United States, 226 F.3d 996, 1003 (9th Cir. 2000) (quoting 28 U.S.C. § 2680(k); and citing Donahue v. U.S. Dept. of Justice, 751 F.Supp. 45 (S.D.N.Y.1990)). "The purpose of the exception is to ensure that the United States is not exposed to excessive liability under the laws of a foreign country over which it has no control." Id. (citing Sami v. United States, 617 F.2d 755, 762-63 (D.C. Cir. 1979). "For the purposes of the FTCA, an act 'arises' 'where the negligent act or omission occurs,' Cominotto v. United States, 802 F.2d 1127, 1130 (9th Cir.1986), or 'where the act necessary to avoid neg-ligence should have occurred.'" Id. (quoting Grunnet v. United States, 730 F.2d 573, 575 (9th Cir.1984). "The place where the loss or injury is actually felt is not necessarily controlling." Id. (citing Leaf v. United States, 588 F.2d 733, 735 (9th Cir. 1978)). As the acts alleged against Mr. Bergaust appear to have taken place in Morocco, the FTCA's "foreign country exception" would appear to bar his claim in that respect.
IV. CONCLUSION
Based on the foregoing, the United States' motion to dismiss Mr. Mesnaoui's complaint is GRANTED. Mr. Mesnaoui's complaint is DISMISSED WITH PREJUDICE.
In light of Mr. Mesnaoui's complaint being dismissed with prejudice, the court also DENIES his motion for appointment of counsel. Motion for Appointment of Counsel, ECF No. 15. While the court acknowledges Mr. Mesnaoui's difficulties with proceeding pro se, the record indicates that he has been notified that Family Court for the Santa Clara County Superior Court has jurisdiction over his child custody issues. Mesnaoui Declaration, ECF No. 25 at 9.
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This disposes of ECF No. 19.
IT IS SO ORDERED.
_____________________
LAUREL BEELER
United States Magistrate Judge