Appeal from a grant of summary judgment by the United States District Court for the Southern District of New York, Lee P. Gagliardi, J ., dismissing a claim under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq., on the ground that the United States is immune from suit for torts arising out of discretionary functions of its employees pursuant to § 2680(a) of the Act. Judgment reversed and case remanded for further proceedings.
Before Feinberg, Chief Judge, Oakes, Circuit Judge, and Conner, District Judge.*fn*
Salvador Caban appeals from a grant of summary judgment by the United States District Court for the Southern District of New York, Lee P. Gagliardi, J., dismissing his complaint under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671 et seq., for damages resulting from his arbitrary detention by agents of the Immigration and Naturalization Service (INS). This appeal requires us to consider both the scope of the discretionary function exception to the FTCA, § 2680(a), and also how that exception is affected by the 1974 amendment to the Act, § 2680(h), which waives the immunity of the United States to suits arising out of certain intentional torts committed by its investigative and law enforcement officers.
On the record in the district court, the facts are as follows. On January 5, 1978, appellant, who apparently is a native of Puerto Rico, disembarked at John F. Kennedy International Airport from a flight that originated in Santo Domingo, Dominican Republic. Pursuant to 8 U.S.C. § 1225*fn1 and regulations adopted thereunder,*fn2 an agent of the INS stopped appellant for a routine examination to determine his admissibility into the United States. When this preliminary investigation failed to persuade the INS agent that Caban was entitled to entry, appellant was referred to a secondary inspection, where further evidence of citizenship was demanded. Unable to produce a passport, Caban offered the officer a birth certificate indicating that he was born on September 19, 1941 in Las Marias, Puerto Rico. He had in his possession a New York State driver's license, a social security card, a union membership card and a letter from the State Department asking for additional evidence relevant to his passport application. The officer, in turn, asked appellant various questions designed to establish his citizenship. Appellant's answers to these questions made his claim highly doubtful: he gave inconsistent answers to questions about when he came to New York initially; he could not answer simple questions about Puerto Rico such as the colors of its flag and the names of its hotels and his local hospital. Caban was therefore referred to another INS agent, who questioned Caban further and then received permission from the supervisor in charge to detain Caban. Appellant was then brought to the INS detention center in Brooklyn, New York, where he remained until he was released. Alberto Riefkohl, an INS trial attorney who is also a native of Puerto Rico, subsequently interviewed Caban. Although Caban was equally unable to satisfy Riefkohl that his claim to citizenship was legitimate, he was released on a $1,000 appearance bond on January 11, 1978, six days after he was detained.
In October 1978, Caban filed an administrative claim under the FTCA for $1,000,000 for negligence, invasion of privacy and false imprisonment. When that claim was denied by the INS, Caban commenced this action in May 1979 seeking the same amount of damages. The government moved for summary judgment on the ground that Caban's FTCA action is barred by § 2680(a) of the Act, which provides that:
The provisions of this chapter and section 1346(b)*fn3 of this title shall not apply to-
(a) 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 or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. (Footnote inserted).
Caban appeals from an order of the district court dated June 8, 1981, granting the government's motion. Because we do not feel that the actions of the INS agents were discretionary in the sense contemplated by the Act, we reverse and remand the case for further proceedings.
The discretionary function exception to the FTCA has presented the courts with problems almost from the time of its enactment in 1946. The principal difficulty is simply that all federal employees exercise a certain amount of discretion in the discharge of their responsibilities. In short, no federal employee is a robot. But if discretion means what Webster's says it means-the "power of free decision or latitude of choice within certain legal bounds," Webster's Seventh New Collegiate Dictionary 238 (7th ed. 1965)-then this exception swallows the general rule that waives the United States' immunity to suits arising out of its employees' actions. Over the years, the courts have been called upon to draw this elusive line between protected and unprotected activities with varying degrees of success. See, e.g., the discussion in Hendry v. United States, 418 F.2d 774, 780-782 (2d Cir. 1969). Nonetheless, commentators have classified the analyses developed into three types: the "planning-operational" test, derived from Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953); the "good Samaritan" test, exemplified by Indian Towing Co. v. United States, 350 U.S. 61, 76 S. Ct. 122, 100 L. Ed. 48 (1955) and Ingham v. Eastern Air Lines, Inc., 373 F.2d 227 (2d Cir.), cert. denied sub nom. United States v. Ingham, 389 U.S. 931, 88 S. Ct. 295, 19 L. Ed. 2d 292 (1967), and a test based upon whether the action involved the balancing of policy factors ("policy balancing" test), which is currently in the ascendancy, see, e.g., Canadian Transport Co. v. United States, 214 U.S. App. D.C. 138, 663 F.2d 1081, 1086-87 (D.C.Cir.) 1980; Sami v. United States, 199 U.S. App. D.C. 173, 617 F.2d 755, 765-68 (D.C.Cir.1979); Blessing v. United States, 447 F. Supp. 1160 (E.D.Pa.1978); Comment, Scope of the Discretionary Function Exception Under the Federal Tort Claims Act, 67 Geo.L.J. 879 (1979) and cases cited at 891 n.107; Note, The Discretionary-Function Exception to the Federal Tort Claims Act, 42 Alb.L.Rev. 721 (1978).
We agree with the current thinking that the policy balancing test best fulfills the purpose for which the discretionary function exception was designed. By barring tort liability for activities that require the alleged tortfeasor to consider and weigh competing policies in arriving at his decision, this test protects courts from "involve(ment) in making ... decision(s) entrusted to other branches of the government," Canadian Transport, 663 F.2d at 1087, and especially from questions involving "not negligence but social wisdom, not due care but political practicability, not reasonableness but economic expediency," Blessing, 447 F. Supp. at 1170. The exception thus protects the principles embodied in the separation of powers doctrine by keeping the judiciary from deciding questions consigned to the executive and legislative branches of the government. This core function was recognized in our decision in Hendry v. United States, supra. There we viewed Dalehite as excepting public policy type decisions, 418 F.2d at 783, and stated that "it is clear that § 2680(a) was intended to protect the validity of governmental regulations from challenge in a tort action for damages...." Id. at 782. Similarly, we found that the discretionary function exception does not allow attacks on "those governmental decisions in which, to be effective, the decision-maker must look to considerations of public policy and not merely to ... standards of general reasonableness." Id. at 783.
Applying this test to the situation before us, we find that the activities of the INS agents who detained appellant do not fall within the purview of § 2680(a) because the activities are not the kind that involve weighing important policy choices. While it is true that the pertinent statutes and regulations vest immigration officials with broad discretion by defining an applicant's entry rights in terms of how he "appear(s)" to the immigration officer, § 1225(b), and whether the INS agent is "satisfied" with his proof of entitlement to enter, 8 C.F.R. § 235.1 (1980), that language goes only to the standard of care by which the INS employees' behavior is judged. The quoted language does not convert the discharge of prescribed responsibilities into "decisions which involve a choice between competing policy considerations...." Canadian Transport, 663 F.2d at 1087. In contrast, the promulgation of regulation 8 C.F.R. § 235.1 is a discretionary act entitled to immunity under § 2680(a) because setting down that rule involves balancing the government's interest in protecting its citizens' welfare against the applicant's interest in a fair and just determination of his rights. Thus, if Caban were suing the INS for adopting this regulation, he would find his case properly dismissed under § 2680(a) even if he could show that the regulation resulted directly in his detention in Brooklyn for six days.
Moreover, contrary to the government's contention, our construction of § 2680(a) is not inconsistent with prior decisions of this court. It is true that in Hendry, supra, relied upon by the district judge, there is language that suggests that ad hoc determinations are protected by the discretionary function exception. Nonetheless, the holding in that case was that § 2680(a) did not bar an FTCA suit based on the loss of a merchant marine license as a result of a negligent psychiatric examination. We think that determining whether a merchant mariner is mentally fit involves no less discretion than determining whether an applicant is an American citizen, an objectively verifiable fact. If the former judgment does not involve the kind of discretion protected by the FTCA, then neither does the latter. Similarly, the decision to detain someone at the border is not fraught with the need to balance competing policy considerations that obtains when the Comptroller of the Currency decides whether or not ...