Daniel Kordash v. United States

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12151
____________________
DANIEL KORDASH,
Plaintiff-Appellant
versus
UNITED STATES OF AMERICA,
Attorney General of the United States,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-24257-KMM
____________________
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, and GRANT,
Circuit Judges.
WILLIAM PRYOR, Chief Judge:
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21-12151 Opinion of the Court 2
The issue in this appeal is whether an individual’s tort claims
against federal officers are barred by determinations in an earlier
Bivens action. After a series of prolonged airport security
screenings, Daniel Kordash filed Bivens claims against the Customs
and Border Protection officers who detained him. The district
court found that the officers had qualified immunity and dismissed
the complaint. Kordash then filed a new complaint, under the
Federal Tort Claims Act, against the United States for false
imprisonment, battery, assault, intentional infliction of emotional
distress, and negligence. The district court dismissed the new
complaint for failure to state a claim, and Kordash appealed. The
government asks us to give preclusive effect, under the doctrine of
collateral estoppel, to the determination in the Bivens suit that the
officers acted lawfully in furtherance of federal policy, on the
theory that lawful federal actions are not subject to state-law tort
liability under the Supremacy Clause. Denson v. United States, 574
F.3d 1318, 1347 (11th Cir. 2009). Because we conclude that
collateral estoppel applies, we affirm the dismissal of the complaint.
I. BACKGROUND
This appeal is from a dismissal for failure to state a claim, see
Fed. R. Civ. P. 12(b)(6), so we accept the allegations of the
complaint as true. Henley v. Payne, 945 F.3d 1320, 1326 (11th Cir.
2019).
On at least three occasions, Customs and Border Protection
officers detained Daniel Kordash, an American businessman who
frequently travels abroad, for a secondary security screening at Fort
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21-12151 Opinion of the Court 3
Lauderdale-Hollywood International Airport or Miami
International Airport. First, in September 2017, Customs and
Border Protection officers stopped Kordash on his way to
Colombia after he falsely reported his currency holdings. Kordash
was carrying $33,722 in dollars and the equivalent of $147.16 in
Colombian pesos in his luggage, but he had reported in a revised
declaration that he carried only $12,000. Alerted by Kordash’s
revision to his declaration, officers discovered the discrepancy,
seized the money, and allegedly “interrogated [him]” “in a freezing
cold room” before assessing a fine and releasing him. Next, in
February 2018, officers stopped Kordash for a secondary security
screening upon his return from Mexico. They allegedly
“harass[ed]” him, “seized [his] cell phone,” and “warned” him he
would always be subject to invasive border searches because of the
September 2017 incident. This detention took hours, though the
exact duration is disputed. Kordash’s complaint alleged that it
lasted six hours, but Kordash attached time-stamped government
reports that show the duration as two hours, three minutes, and
fifty-nine seconds. Last, in November 2018, officers detained
Kordash upon his return from Russia for hours of questioning and
made further reference to the September 2017 incident.
On a separate occasion in October 2018, Customs and
Border Protection officers at Fort Lauderdale-Hollywood
International Airport stopped Kordash’s friend, a Norwegian
citizen named Sara Nilsen who was arriving from Colombia, when
officers “learn[ed] that she was there to visit [Kordash].” Officers
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detained her at the airport border, insinuated that she was a
prostitute, questioned her about Kordash, and told her that
Kordash was a money launderer and human trafficker. This
incident allegedly “sabotaged” Nilsen and Kordash’s relationship.
A month after his November 2018 detention, Kordash filed
a Bivens claim in the district court against the Customs and Border
Protection officers in their individual capacities as “John Does 1–
6.” See Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). The amended complaint alleged
that the officers violated Kordash’s right to be free from
unreasonable searches and seizures under the Fourth Amendment,
his right to free association under the First Amendment, and his
right to travel under the Fifth Amendment.
The district court dismissed the complaint with prejudice for
failure to state a claim. The district court credited the shorter
duration of the February detention in the Customs and Border
Protection report because it was more “specific” than the allegation
of a six-hour detention in Kordash’s complaint. See Gill ex rel.
K.C.R. v. Judd, 941 F.3d 504, 514 (11th Cir. 2019). And it held that
the officers had qualified immunity as to Kordash’s Bivens claims.
Specifically, the district court determined that “it was within the
[Customs and Border Protection] Officer[s’] discretionary duty to
detain [Kordash] and Nilsen” because the officers acted pursuant to
Customs and Border Protection’s authority to enforce customs
statutes and conduct border searches and that the complaint failed
to establish that the officers violated clearly established
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21-12151 Opinion of the Court 5
constitutional law. The complaint failed to allege a violation of
Kordash’s Fourth Amendment rights because the officers had
reasonable suspicion for at least the first detention and afterward
lawfully stopped Kordash in routine detentions that did not require
reasonable suspicion. The complaint did not allege a clearly
established First Amendment violation because Kordash did not
establish he had a constitutionally protected “intimate”
relationship with Nilsen. See Roberts v. U.S. Jaycees, 468 U.S. 609,
617–18 (1984). And the complaint did not allege a Fifth
Amendment violation because the government may lawfully
subject a traveler to airport screening, even extra screening that
lasts hours.
Instead of appealing that dismissal, Kordash filed a new
action based on the same facts. The new action alleged claims
under the Federal Tort Claims Act, which waives the federal
government’s sovereign immunity for state-law tort claims. See 28
U.S.C. §§ 1346(b), 2671 et seq. The complaint alleged the torts of
false imprisonment, false arrest, assault, battery, intentional
infliction of emotional distress, and negligence.
The government moved to dismiss Kordash’s complaint for
failure to state a claim and for lack of subject matter jurisdiction. It
cited the ruling in Kordash’s Bivens suit, stated that the district
court dismissed the claim with prejudice, and argued that the
earlier order “controls [the outcome] here.” It also addressed the
merits of each claim.
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The district court dismissed this complaint. It ruled that
Kordash “failed to adequately plead facts showing that he was
unlawfully or unreasonably detained . . . both of which are
required elements of a false imprisonment claim”; failed to
overcome the good-faith presumption for government force
because “any alleged force used was not ‘clearly excessive,’” which
barred his battery claim; failed to allege any facts to establish that
officers behaved unreasonably or intentionally caused fear, which
barred his assault claim; and failed to overcome the discretionary-
function exception under the Federal Tort Claims Act, which
jurisdictionally foreclosed his claims for intentional infliction of
emotional distress and negligence. The district court did not
address the doctrine of collateral estoppel.
II. STANDARD OF REVIEW
We review de novo a dismissal for failure to state a claim.
Feldman v. Am. Dawn, Inc., 849 F.3d 1333, 1339 (11th Cir. 2017).
III. DISCUSSION
The Supremacy Clause enshrines the basic principle that
federal law supersedes state law whenever they conflict.
Hillsborough Cnty. v. Automated Med. Lab’ys, Inc., 471 U.S. 707,
712–13 (1985); see U.S. Const. art. VI, cl. 2. This principle applies
not only to direct clashes between federal and state constitutions
or statutes but also to suits under state law against federal officials
carrying out their executive duties. See In re Neagle, 135 U.S. 1, 75
(1890). That is, where state-law liability “stands as an obstacle to
the accomplishment and execution of the full purposes and
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objectives of Congress,” Hines v. Davidowitz, 312 U.S. 52, 67
(1941), liability against a federal officer may not arise, because “[a]n
act cannot simultaneously be necessary to the execution of a duty
under the laws of the United States and an offense to the laws of a
state,” Denson, 574 F.3d at 1347.
We addressed this issue at length in Denson v. United States,
in which we upheld the dismissal of an air traveler’s Bivens and tort
claims arising from an extended border detention at customs when
she arrived in the United States. See id. at 1323. We concluded that
the traveler’s Bivens claims failed because the Customs and Border
Protection officers who detained her “acted reasonably and thus,
did not violate the Fourth Amendment.” Id. at 1344. As a result, the
traveler’s tort claims necessarily failed. Id. at 1347–49. As we
explained, the inquiry that determines if the Supremacy Clause
bars state-law liability is whether a federal official’s acts “have some
nexus with furthering federal policy and can reasonably be
characterized as complying with the full range of federal law.” Id.
at 1348; see also id. at 1347 (deriving this test from In re Neagle, 135
U.S. at 57). Because the Customs and Border Protection officers’
actions bore “a substantial relation to the valid and preeminent
federal interests of protecting our international borders, and, while
carrying out their lawfully defined duties, they complied with the
full spectrum of federal statutory, regulatory, and constitutional
law,” they satisfied this test. So, the government in Denson could
not be held liable under state law for the officers’ alleged torts. Id.
at 1348.
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The only difference between Denson and Kordash’s
litigation is that Kordash split his claims into two lawsuits instead
of joining them into one. The district court in Kordash’s Bivens
lawsuit concluded that the Customs and Border Protection officers
who detained Kordash acted lawfully to further federal policy. It
determined that there was a nexus between their conduct and
furthering federal policy when it found that “[the officers] were
acting within the scope of their discretionary duty” because “[a]t
the national border, including airports, [Customs and Border
Protection] officers are charged with enforcing immigration and
customs statutes and regulations.” And it determined that the
officers’ conduct complied with federal law when it concluded that
the alleged detentions were permitted by the Fourth Amendment.
As the district court explained, “[the officers] had reasonable
suspicion to search [Kordash’s] bag and detain him . . .” during the
first detention, and the latter two searches lasted “less than three
hours,” which meant that they were routine border searches that
did not require reasonable suspicion. See United States v. Flores-
Montano, 541 U.S. 149, 155 n.3 (2004). And the district court found
that Kordash failed to establish that the officers violated the First
and Fifth Amendments, too. All these determinations, taken
together, satisfy the Denson test for the bar to tort liability under
the Supremacy Clause.
The government now urges us to give preclusive effect to
these earlier determinations under the doctrine of collateral
estoppel. That doctrine “bars ‘successive litigation of an issue of
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21-12151 Opinion of the Court 9
fact or law actually litigated and resolved in a valid court
determination essential to the prior judgment.’” Taylor v.
Sturgell, 553 U.S. 880, 892 (2008) (quoting New Hampshire v.
Maine, 532 U.S. 742, 748–49 (2001)). We apply collateral estoppel
when the following four conditions are met:
(1) the issue at stake is identical to the one involved in
the prior litigation; (2) the issue was actually litigated
in the prior suit; (3) the determination of the issue in
the prior litigation was a critical and necessary part of
the judgment in that action; and (4) the party against
whom the earlier decision is asserted had a full and
fair opportunity to litigate the issue in the earlier
proceeding.
Miller’s Ale House, Inc. v. Boynton Carolina Ale House, LLC, 702
F.3d 1312, 1318 (11th Cir. 2012).
All four conditions for collateral estoppel are met here. First,
the issue in this case—whether the officers’ acts had a “nexus” with
furthering federal policy and complied with federal law, Denson,
574 F.3d at 1348—is identical to an issue in the Bivens action. In the
Bivens action, the district court determined for each incident when
Kordash or Nilsen were stopped whether the officers acted within
their discretionary authority and whether the detentions complied
with federal law. Here, the same legal inquiries govern the
application of the Supremacy Clause as a bar to liability for claims
arising out of these incidents under the Federal Tort Claims Act.
Second, those issues were actually litigated in the Bivens suit. See
Restatement (Second) of Judgments § 27 cmt. d (Am. L. Inst. 1982)
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(an issue is actually litigated if it was properly raised, submitted for
determination, and determined). Third, the determination that the
officers had qualified immunity because they acted within their
discretion and did not violate federal law was necessary to the
dismissal of Kordash’s Bivens claims. Fourth, Kordash had a fair
opportunity to litigate these issues because he brought the earlier
Bivens lawsuit and raised the subject of the constitutional
violations himself. So, Kordash is barred from relitigating these
issues under the doctrine of collateral estoppel.
IV. CONCLUSION
We AFFIRM the dismissal of Kordash’s complaint.