Welch v. United States ( 2005 )

Filed: June 24, 2005
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1863
(CA-03-2953-CCB)
RICARDO ANTONIO WELCH, JR.,
Plaintiff - Appellant,
versus
UNITED STATES OF AMERICA,
Defendant - Appellee.
O R D E R
The court amends its opinion filed May 31, 2005, as follows:
On page 7, part IV., second paragraph, line 4 -- the word
“proscribes” is corrected to read “prescribes.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RICARDO ANTONIO WELCH, JR., 
Plaintiff-Appellant,
v.  No. 04-1863
UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Catherine C. Blake, District Judge.
(CA-03-2953-CCB)
Argued: March 17, 2005
Decided: May 31, 2005
Before MICHAEL and DUNCAN, Circuit Judges,
and Frederick P. STAMP, Jr., United States District Judge for the
Northern District of West Virginia, sitting by designation.
Affirmed by published opinion. Judge Duncan wrote the opinion, in
which Judge Michael and Judge Stamp joined.
COUNSEL
ARGUED: Todd Michael Stenerson, AKIN, GUMP, STRAUSS,
HAUER & FELD, L.L.P., Washington, D.C., for Appellant. Neil Ray
White, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: Debra A. Drake, AKIN, GUMP, STRAUSS, HAUER &
2 WELCH v. UNITED STATES
FELD, L.L.P., Washington, D.C., for Appellant. Thomas M.
DiBiagio, United States Attorney, Baltimore, Maryland, for Appellee.
OPINION
DUNCAN, Circuit Judge:
Ricardo Antonio Welch, Jr. was detained for 422 days under an
immigration statute that this court later determined was unconstitu-
tional as applied to him due to its failure to provide for a bail hearing.1
Welch v. Ashcroft, 293 F.3d 213 (4th Cir. 2002). Welch’s successful
challenge to his detention led to a court-ordered hearing at which an
immigration judge released him on bail. Welch now brings this
action, claiming that his detention constituted tortious false imprison-
ment under Maryland law, an action for which he contends the United
States is liable under the Federal Tort Claims Act ("FTCA"). The dis-
trict court dismissed Welch’s claim for lack of subject matter jurisdic-
tion, holding that the United States had not waived its sovereign
immunity because his claim fell under the so-called "due care" excep-
tion to the FTCA. 28 U.S.C. § 2680(a). Because we agree with the
district court and find that the due care exception applies to the facts
of Welch’s false imprisonment claim, we affirm.
I.
The material facts of this case are not in dispute. Welch is a native
and citizen of Panama. At the age of ten, he entered the United States
with his family and has been a permanent legal resident of this coun-
try since that time. While he was never granted citizenship, both of
his parents and two of his three siblings are American citizens. Welch
1
The Supreme Court subsequently rejected a constitutional challenge
to the statute in another case, holding that mandatory detention of deport-
able aliens prior to removal proceedings is constitutionally permissible.
See Demore v. Hyung Joon Kim, 538 U.S. 510 (2003). This decision,
however, was rendered after Welch’s case was completed. Thus, for pur-
poses of resolving the issue before us, the Fourth Circuit’s decision
remains the final authoritative ruling.
WELCH v. UNITED STATES 3
served in the United States Navy and Naval Reserve from 1986
through 1994, when he was honorably discharged. He is now a resi-
dent of the State of Maryland, where he lives with his wife, two sons,
and step-daughter, all of whom are American citizens.
In 1993, Welch was arrested after being involved in an altercation
on a basketball court. He was charged with a series of state felonies
stemming from the incident, including assault and weapons charges.
He pled guilty to the charges in 1994 and was sentenced to five years
in prison. He ultimately served three years in a Maryland state correc-
tional facility and was released in October, 1996.
After Welch’s initial plea, the United States Department of Justice
("DOJ") instituted deportation proceedings against him under two
subsections of the Immigration and Naturalization Act. See 8 U.S.C.
§ 1251(a)(2)(A)(iii)(authorizing deportation for conviction of an "ag-
gravated felony"); 8 U.S.C. § 1251(a)(2)(C)(authorizing deportation
for unlawful possession of a firearm).2 In August, 1997, following his
release, an immigration judge ordered Welch deported to Panama pur-
suant to § 1227(a)(2)(A)(iii). Welch appealed the order to the Board
of Immigration Appeals, and the appeal was denied on July 8, 1998.
In October, 1998, the DOJ took Welch into custody and placed him
in detention pending his deportation. The removal process was
delayed however, as the Immigration and Naturalization Service
("INS") did not receive the necessary paperwork from the Panama
Consulate in order to complete deportation proceedings.
While Welch remained in detention, on April 22, 1999, the state
charges for which he had pled guilty were vacated in state court on
collateral review. On that same day, Maryland entered into an agree-
ment with Welch in which the felony charges were dropped and he
instead pled guilty to six misdemeanor charges of simple assault and
one misdemeanor charge of illegally wearing or carrying a handgun.
The court imposed a sentence of less than one year and credited
2
In 1996 Congress recodified § 241 of the Immigration and Naturaliza-
tion Act, 8 U.S.C. § 1251 (1994), in substantially identical form at § 237
of the Act as amended, 8 U.S.C. § 1227 (2001). We will refer to the pro-
visions under the new codification in the rest of the opinion.
4 WELCH v. UNITED STATES
Welch for the time served previously, which resulted in no new time
in detention.
The DOJ ceased its attempt to deport Welch based upon his prior
felony convictions but moved to reopen the removal proceedings on
the ground that the plea to the new firearm conviction rendered him
deportable under 8 U.S.C. § 1227(a)(2)(C). On October 28, 1999, the
Board of Immigration Appeals granted the motion. The DOJ contin-
ued to detain Welch based upon the Immigration and Naturalization
Act’s mandate of such detention pending a final removal determina-
tion. See 8 U.S.C. § 1226(c).
While in detention, Welch filed a petition for a writ of habeas cor-
pus with the District Court of Maryland, contending that his indefinite
detention without the possibility of bail by the DOJ violated his Fifth
Amendment due process rights. At the same time, he applied for natu-
ralization as a United States citizen. The district court granted the
habeas petition, holding that § 1226(c) "violate[d] Welch’s substan-
tive due process right[s] . . . to receive a bail hearing in which a judge
would determine his flight risk and threat to the community." Welch,
101 F.Supp.2d at 356. The court ordered that the DOJ provide Welch
with a bail hearing, which an immigration judge conducted on June
7, 2000. After the hearing, the judge granted Welch his release.
The DOJ appealed that decision, and on June 19, 2002, this court
affirmed the district court’s decision, but on slightly different
grounds. Welch, 293 F.3d at 218-28. While declining an invitation to
rule on the constitutionality of § 1226(c) in all cases, we held that the
provision was unconstitutional as applied to Welch. Id. Following this
decision, on July 15, 2002, an immigration judge granted Welch’s
petition to cancel his removal proceedings. The government did not
appeal, thus ending the threat of deportation.
On June 4, 2002, Welch presented an administrative claim to the
INS seeking damages for his unlawful imprisonment from April 22,
1999 until June 7, 2000. His administrative claim was denied on April
23, 2003.3 On October 15, 2003, Welch filed a complaint under the
3
On March 1, 2003, the INS was abolished and its functions were
incorporated into the Department of Homeland Security. It was this
agency that ultimately denied Welch’s claim.
WELCH v. UNITED STATES 5
FTCA against the United States in the United States District Court for
the District of Maryland, again alleging false imprisonment. The
United States moved to dismiss under FED. R. CIV. P. 12(b)(1) for
lack of subject matter jurisdiction, alleging in part that the United
States had not waived sovereign immunity under the FTCA for
Welch’s claim. The district court granted the motion to dismiss, and
it is this decision we now review.
II.
We review a district court’s dismissal under Rule 12(b)(1) for lack
of subject matter jurisdiction de novo. Evans v. B.F. Perkins Co., 166
F.3d 642, 647 (4th Cir. 1999). On appeal, Welch argues that his 422-
day detention by the United States constituted false imprisonment
under Maryland law. He contends that the FTCA provides a waiver
of sovereign immunity by the United States for such false imprison-
ment claims, and that the district court erred in determining that
Welch was unable to bring his claim due to the due care exemption
to the FTCA.
III.
As a sovereign, the United States is immune from all suits against
it absent an express waiver of its immunity. United States v. Sher-
wood, 312 U.S. 584, 586 (1941). All waivers of sovereign immunity
must be "strictly construed . . . in favor of the sovereign." Lane v.
Pena, 518 U.S. 187, 192 (1996). For that reason, it is the plaintiff’s
burden to show that an unequivocal waiver of sovereign immunity
exists and that none of the statute’s waiver exceptions apply to his
particular claim. Williams v. United States, 50 F.3d 299, 304 (4th Cir.
1995). If the plaintiff fails to meet this burden, then the claim must
be dismissed. Medina v. United States, 259 F.3d 220, 223 (4th Cir.
2001).
The FTCA effects a limited waiver of the United States’ sovereign
immunity for "personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment." 28 U.S.C.
§ 1346(b)(1). The scope of this waiver is limited by a series of spe-
cific exceptions outlined in the Act, each of which is considered juris-
6 WELCH v. UNITED STATES
dictional. Medina, 259 F.3d at 223-24. Two such exceptions apply
here, and their inter-relationship controls our analysis. Specifically,
the waiver of sovereign immunity under the FTCA does not apply to:
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 regula-
tion 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.
28 U.S.C. § 2680(a). The first clause of § 2680(a), the due care excep-
tion, prevents the United States from being held liable for actions of
its officers undertaken while reasonably executing the mandates of a
statute.
In addition to § 2680(a), § 2680(h) exempts claims for certain
intentional torts, including those for false imprisonment, from the
waiver of sovereign immunity. However, the statute was amended in
1974 to provide an exception to this exemption, stating that sovereign
immunity is waived if certain intentional torts, including false impris-
onment, are committed by an investigative or law enforcement officer
of the United States. We have previously held that INS agents meet
the criteria of an "investigative or law enforcement officer." Medina,
259 F.3d at 224.
Welch contends that because of § 2680(h), the due care exception
of § 2680(a) does not bar his suit. He argues that § 2680(h)’s specific
removal of immunity for false imprisonment claims against law
enforcement officers of the United States exists independently of the
§ 2680(a) due care exception, and that § 2680(a) is thus not intended
to apply to, or limit, § 2680(h) claims. He contends that congressional
intent would be thwarted by applying the due care exemption to such
claims, as the specificity of the authorization of § 2680(h) immunity
waivers indicates an intent that they should control. According to
Welch, then, the United States has waived its sovereign immunity for
false imprisonment claims, even if the law enforcement officer exer-
cised due care.
WELCH v. UNITED STATES 7
Unfortunately for Welch, the authority in this circuit is to the con-
trary. In interpreting the "discretionary function" language of the sec-
ond part of § 2680(a) in Medina, we concluded that subsection (a)
applies to intentional torts under § 2680(h). 259 F.3d at 225-26. Fol-
lowing the reasoning of the D.C. Circuit, we held that when Congress
amended § 2680(h) in 1974, it knew the effect of § 2680(a) and must
have meant for its provisions to apply. Id. (discussing Gray v. Bell,
712 F.2d 490, 507 (D.C. Cir. 1983). While the new revisions to
§ 2680(h) allowed intentional tort claims against law enforcement
officers, Medina decided that the exceptions to the Act already in
existence were intended to remain in effect.
As noted, our determination in Medina was made in the context of
subsection (a)’s "discretionary function" language. However, we see
no compelling reason, and Welch points to none, for treating the par-
allel "due care" exception differently. We therefore hold that inten-
tional tort claims authorized by § 2680(h) must overcome the
§ 2680(a) due care hurdle before sovereign immunity can be deemed
waived.
IV.
Welch next argues that even if § 2680(a) applies to limit
§ 2680(h)’s authorized false imprisonment claims generally, the dis-
trict court erred in determining that his particular claim is barred by
the due care exception. We disagree.
To determine whether the due care exception bars a particular
claim, we apply a two-part analysis. See Crampon v. Stone, 59 F.3d
1400, 1403 (D.C. Cir. 1995). First, we determine whether the statute
or regulation in question specifically prescribes a course of action for
an officer to follow. Id. Second, if a specific action is mandated, we
inquire as to whether the officer exercised due care in following the
dictates of that statute or regulation. If due care was exercised, sover-
eign immunity has not been waived. Id.In this case, the DOJ detained Welch under the mandate of
§ 1226(c)(1)(B). This provision states that the "Attorney General shall
take into custody any alien who . . . is deportable by reason of having
committed an offense covered in section . . . 1227(a)(2)(C) of this
8 WELCH v. UNITED STATES
title." 8 U.S.C. § 1226(c)(1)(B). The language in this provision specif-
ically prescribes a course of action to be followed by officers of the
United States. The detention of anyone deportable due to a Section
1227(a)(2)(C) offense is mandatory; the "shall" language in the provi-
sion indicates that an individual officer cannot deviate from its
enforcement. Once Welch was deemed deportable, the INS officers
had no discretion in their actions. The decision to detain him was sta-
tutorily required, thus satisfying the first requirement of the due care
exception.
Our second inquiry is simply whether the officers in question exer-
cised due care in the execution of this statutorily prescribed duty.
Welch does not claim that the INS officers carried out their responsi-
bilities in an inappropriate manner, or in any way deviated from the
statute’s requirements. Rather, his complaint is with the officers’
decision to detain him in the first instance. However, this is a com-
plaint regarding the statute itself, not with any of the particular offi-
cers’ alleged deviation from its mandate. Absent any allegation of
such a deviation it cannot be said that the officers acted with anything
other than due care. We therefore conclude that the prerequisites of
§ 2680(a) are met on these facts and that the United States’ sovereign
immunity is not waived.
Welch makes two arguments in response to the facial applicability
of § 2680(a), neither of which is compelling. First, he contends that
this court’s earlier finding in that § 1226(c) was unconstitutional as
applied to Welch precludes a determination that the INS agents acted
in due care in executing it. Put simply, Welch contends that an uncon-
stitutional regulation can never be said to have been executed with
"due care."
This argument, however, ignores the plain language of § 2680(a).
The exception states that sovereign immunity is not waived if an offi-
cer acts with "due care" in the execution of a statute or regulation
"whether or not such statute or regulation be valid." 28 U.S.C.
§ 2680(a). The obvious purpose of the provision is to immunize the
conduct of an officer from tort liability regardless of whether the stat-
ute under which he is proceeding is ultimately upheld. This is consis-
tent with the aim of the FTCA, which is to create a remedy for certain
plaintiffs who have been injured by the tortious execution of a partic-
WELCH v. UNITED STATES 9
ular law, not provide a venue in which to challenge the validity of that
law. See Dalehite v. United States, 346 U.S. 15, 32-33 (1953). As the
district court correctly noted, it is the purpose of the due care provi-
sion to "bar tests by tort action of the legality of statutes and regula-
tions." Borquez v. United States, 773 F.2d 1050, 1052 (9th Cir.
1985)(internal quotation omitted). Welch identifies no violation of his
constitutional rights resulting from the execution of § 1226(c) in a
manner in which it was not intended. Rather, he simply argues that
because the statute was later found unconstitutional as applied to him,
due care could not have been used in the decision to enforce it. This
argument is refuted by the plain language of the statute.
Welch’s second argument fares no better. He claims that the man-
datory nature of § 1226(c) prevents the utilization of any standard
upon which it can be judged whether the government officials acted
with due care. Welch is essentially arguing that statutes that mandate
particular acts and leave no discretion in their execution may not be
included within the due care exception as they leave no standard by
which such care can be judged. Besides lacking a statutory basis for
this conclusion, this argument is also incorrect. When a statute
requires an official to take a particular action, the manner in which the
act is undertaken may nevertheless be improper and thus performed
without due care. For instance, the INS might have detained an indi-
vidual under § 1226(c) for a crime that was not deportable, and thus
its officers may have falsely imprisoned an individual by executing
the statute improperly. In that instance, the claim would not be
brought because of an alleged defect in the statute, but rather because
of an alleged defect in how the statute has been executed. Here, how-
ever, Welch challenges the correct and proper enforcement of a man-
datory statute. Such enforcement is, by its very nature, executed with
due care. The mandatory nature of the enforcement does not discour-
age, but only reinforces, such a conclusion.
V.
The INS officers in this case appropriately enforced the required
mandate of 8 U.S.C. § 1226(c). Welch has not claimed that they acted
other than with due care in its execution and thus the United States
has not waived its sovereign immunity for his claim. Absent such a
10 WELCH v. UNITED STATES
waiver, the United States has not consented to be sued, and the district
court’s decision to dismiss the claim under Rule 12(b)(1) is
AFFIRMED.