Perez v. United States

8 F.4th 1095

Maria del Socorro QUINTERO PEREZ; Brianda Aracely Yanez Quintero; Camelia Itzayana Yanez Quintero; J.Y., a minor, Plaintiffs-Appellants,

v.UNITED STATES of America; U.S. Department of Homeland Security; United States Customs and Border Protection ; United States Office of Border Patrol; Janet A. Napolitano; Thomas S. Winkowski; David Aguilar; Alan Bersin; Kevin K. McAleenan; Michael Fisher ; Paul Beeson; Rodney S. Scott; Chad Michael Nelson; Dorian Diaz; Does, 1–50, Defendants-Appellees.

No. 17-56610

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 5, 2018

Submission Withdrawn May 28, 2019

Resubmitted August 9, 2021 Seattle, Washington

Filed August 16, 2021

Steve D. Shadowen (argued) and Matthew Charles Weiner, Hilliard & Shadowen LLP, Austin, Texas; Gerald Singleton and Brody A. McBride, Singleton Law Firm, Solana Beach, California; for Plaintiffs-Appellants.

Mark B. Stern (argued), Nitin Shah, and Casen B. Ross, Appellate Staff; Robert S. Brewer Jr., United States Attorney; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

Before: M. Margaret McKeown and Michelle T. Friedland, Circuit Judges, and Fernando J. Gaitan, Jr.,^* District Judge.

Concurrence by Judge Friedland

McKEOWN, Circuit Judge:

This case illustrates the law's inability to remedy certain wrongs. Jose Alfredo Yañez Reyes ("Yañez") was shot and killed by a U.S. Border Patrol agent while on the U.S.-Mexico border fence. Although these events unfolded at the border, the parties agree that the fencing was in the United States and that the shooting happened on American soil. Mexican territory was involved only when, after being shot, Yañez fell and landed halfway across the international border. Yañez's widow, Maria del Socorro Quintero Perez ("Quintero Perez"), and children, brought civil claims against the U.S. government and individual federal agents under a variety of theories. We withdrew submission of this case pending the Supreme Court's decision in Hernandez v. Mesa , which involved an analogous, but not identical, situation: a cross-border shooting of a Mexican citizen by a border patrol agent. ––– U.S. ––––, 140 S. Ct. 735, 206 L.Ed.2d 29 (2020).

Without doubt, Yañez's death is tragic, as are the circumstances that caused it. We conclude, however, that the relief his family pursues is foreclosed by the holding of Hernandez , the constraints imposed by various statutes, and by the limits of equitable tolling. We regret that the law compels this result.

BACKGROUND

In 2011, U.S. Border Patrol Agent Dorian Diaz ("Diaz") shot and killed Yañez, a Mexican national, while Yañez was on the U.S.-Mexico border fence. The events leading up to the fatal moment began when Yañez and Jose Ibarra Murietta ("Murietta"), also a Mexican national, crossed the border, entering near the San Ysidro port of entry through a hole in a drainage grate that forms part of the border fence. Diaz spotted them and radioed for assistance from another agent, Chad Nelson ("Nelson"). Seeing the agents, Yañez and Murietta tried to return to Mexico. Yañez made it back through the hole in the drainage grate, but Murietta did not. When the agents attempted to arrest Murietta, he fled, then resisted, and an altercation ensued.

The parties offer differing accounts of Yañez's actions while the agents engaged Murietta near the border fence. The agents testified that Yañez swung a table leg studded with nails at Nelson through grating in the fence and then mounted the fence to throw rocks at him. Diaz said he warned Yañez to get down from the fence after he threw rocks, but Yañez appeared above the fence for a second time and threw the table leg at Nelson, which the agents testified hit Nelson in the head. As Diaz described the incident, Yañez "thr[ew] down the table leg ... and hit[ ] Nelson in the back of the head," after which he saw "Nelson kind of jolt his head." Diaz testified he again told Yañez to get off the fence, and when Yañez appeared for the third time on the fence, Diaz shot him. Diaz said that, just before he fired the shot, he saw Yañez "cocking [his arm] back to throw something," and though Diaz "couldn't see [Yañez's] hand," he "kn[e]w [Yañez] had it in a fist."

Quintero Perez offers a different account of the killing, based primarily on Murietta's testimony. Murietta testified that he saw Yañez appear over the fence, but that he never saw him throw rocks or anything else. Instead, Murietta recalled in a deposition that Yañez was holding onto the fence with one hand and holding his cell phone in the other, which Yañez may have used to record the agents’ altercation with Murietta. Murietta also testified that Yañez had told the agents that "he had recorded" them, and that Agent Diaz responded by pointing his gun at Yañez and saying, "I kill you motherfucker."

Despite their divergent accounts of the killing, the parties agree that Diaz was on American soil when he shot Yañez and that Yañez was on the border fence when he was shot, which is also within the United States. The parties also agree that after Yañez was fatally shot, his body fell such that it was partially in the United States and partially in Mexico.

Quintero Perez brought claims against the United States under the Alien Tort Statute ("ATS") and the Federal Tort Claims Act ("FTCA"), and Fourth Amendment Bivens claims against Diaz and former Border Patrol Chief Michael Fisher ("Fisher"), who was in charge of border patrol policies when Yañez was shot. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388, 389, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The district court dismissed the ATS and FTCA claims on the pleadings, and, following discovery, entered summary judgment in favor of the defendants on the Bivens claims. We affirm.

ANALYSIS

I. JUS COGENS CLAIM UNDER THE ALIEN TORT STATUTE

The ATS provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. It is a purely jurisdictional statute that creates no new causes of action. Sosa v. Alvarez-Machain , 542 U.S. 692, 724, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). Rather, the "very limited category" of claims actionable under the ATS must be "defined by the law of nations and recognized at common law." Id. at 712, 124 S.Ct. 2739. The paradigmatic historical examples are "violation of safe conducts, infringement of the rights of ambassadors, and piracy," id. at 724, 124 S.Ct. 2739, but the Court recognized that the ATS also supports claims "based on the present-day law of nations," so long as they "rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms" that the Court had listed. Id. at 725, 124 S.Ct. 2739.

Quintero Perez argues that the shooting amounted to an extrajudicial killing that violates an international jus cogens norm and that fits within Sosa ’s definition of torts actionable under the ATS. A jus cogens norm, also known as a "peremptory norm" of international law, "is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character." Vienna Convention on the Law of Treaties, art. 53, May 23, 1969, 1155 U.N.T.S. 332, 8 I.L.M. 679. Quintero Perez claims that Border Patrol's "Rocking Policy" violates a jus cogens norm against extrajudicial killing. The district court dismissed the claim, holding that the United States did not waive its sovereign immunity for this norm. We review de novo, and we affirm. See Elmakhzoumi v. Sessions , 883 F.3d 1170, 1172 (9th Cir. 2018).

Quintero Perez asserts an ATS claim only against the United States. We addressed the interplay between the ATS's jurisdictional grant and sovereign immunity in Tobar v. United States , 639 F.3d 1191 (9th Cir. 2011). Joining three of our sister circuits, we concluded that the ATS does not "imply any waiver of sovereign immunity." Id. at 1196 (quoting Goldstar (Panama) S.A. v. United States , 967 F.2d 965, 968 (4th Cir. 1992) ). This analysis was consistent with a position we took nearly twenty years earlier in Koohi v. United States , in which we noted that the ATS "does not waive sovereign immunity."

976 F.2d 1328, 1332 n.4 (9th Cir. 1992) (citing Canadian Transp. Co. v. United States , 663 F.2d 1081, 1092 (D.C. Cir. 1980) ). Following Tobar , "any party asserting jurisdiction under the [ATS] must establish, independent of that statute, that the United States has consented to suit." 639 F.3d at 1196 (quoting Goldstar , 967 F.2d at 968 ).

The D.C., Second, and Fourth Circuits are in accord. The D.C. Circuit has repeatedly held that the ATS "itself is not a waiver of sovereign immunity." Sanchez-Espinoza v. Reagan , 770 F.2d 202, 207 (D.C. Cir. 1985) ; see also Canadian Transp. Co. , 663 F.2d at 1092. As we noted in Tobar , the Fourth Circuit similarly concluded that the ATS "has not been held to imply any waiver of sovereign immunity." Goldstar , 967 F.2d at 968. The Second Circuit agreed that the ATS does not waive sovereign immunity. Arar v. Ashcroft , 532 F.3d 157, 175 n.12 (2d Cir. 2008) (addressing the Torture Victim Protection Act, which is codified as a note to the ATS), vacated on other grounds , 585 F.3d 559 (2d Cir. 2009).

In the face of this authority, Quintero Perez urges that jus cogens violations do not warrant sovereign immunity. Although Tobar did not implicate a jus cogens violation, its language is unequivocal and does not permit an exception to the waiver requirement for jus cogens violations. Tobar , 639 F.3d at 1196. Though Quintero Perez points to a Fourth Circuit decision, Yousuf v. Samantar , which stated that "jus cogens violations...