Revised March 8, 2001

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 00-50039

RAMON J. JEANMARIE, Individually and as Parent and Next Friend of T. A. Jeanmarie and R. J. Jeanmarie II, Minors; SHEILA A. JEANMARIE,

Plaintiffs-Appellants,

VERSUS

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Texas

February 15, 2001 Before POLITZ, DeMOSS, and STEWART, Circuit Judges.

DeMOSS, Circuit Judge:

Ramon and Sheila Jeanmarie (“the Jeanmaries”) appeal from an

order entered by the district court dismissing their first amended

complaint, which they had filed pursuant to the Federal Tort Claims

Act (“FTCA”),

(b), 2671 et seq., against the

United States. Their complaint sought recovery for alleged abuses

of Mr. Jeanmarie (“Jeanmarie”) by U.S. Customs agents incident to a search of the Jeanmaries’ vehicle. For the following reasons, we

affirm the district court’s order of dismissal.

BACKGROUND

The facts, as alleged by the Jeanmaries, are as follows. On

or about June 20, 1996, Jeanmarie returned from a brief trip into

Mexico and re-entered the United States via one of the ports of

entry in El Paso, Texas. Jeanmarie and the vehicle in which he was

traveling were detained for inspection by the United States Customs

Service. During the course of the inspection, Jeanmarie was asked

to open the trunk of his vehicle, but because he apparently only

had a valet key with him, he was unable to access the trunk

himself. He authorized the Customs agents to forcibly open the

trunk of his car.

Also during the course of the inspection, Jeanmarie twice

requested permission to use the restroom, citing an urgent and

special need to do so caused by a recent surgical procedure that

affected his kidneys and bladder. The Customs agents temporarily

denied his requests while the inspection continued. Nonetheless,

and contrary to instructions, Jeanmarie proceeded to leave the

designated area in search of the restroom. Jeanmarie was

confronted by another Customs agent and alleges that the agent

forcibly restrained him and shoved him against a counter causing

numerous injuries. Specifically, Jeanmarie alleges that the

Customs agents grabbed him and “jerked his arms behind his back,

2 and forced [his] abdomen into a counter.” Jeanmarie also alleges

that one of the officers struck him about the face and neck.

In their original complaint, the Jeanmaries alleged that the

United States was responsible for the actions of its employees and

that it was responsible for negligently training and supervising

its employees. Jeanmarie sought money damages, and his wife and

children sought damages for loss of consortium and support.

The United States filed a motion to dismiss the complaint

arguing that despite the general waiver of sovereign immunity found

in the FTCA, the United States was nonetheless entitled to immunity

by virtue of two applicable exceptions to the FTCA’s waiver of

immunity. The government contended that the discretionary function

and the customs-duty exceptions entitled it to immunity. The

Jeanmaries sought and were granted leave to amend their complaint

to include claims of assault and battery, false arrest, and false

imprisonment, and the government filed a second motion to dismiss.

After the Jeanmaries responded to the motions to dismiss, the

district court granted those motions and dismissed the complaint.

In its order of dismissal, the district court determined that

the customs-duty exception to the FTCA,

(c), barred

“any claim arising out of . . . the detention of goods,” and that

based upon the Supreme Court’s decision in Kosak v. United States,

(1984), the customs-duty exception also

included claims for injuries “associated in any way with the

3 detention of goods.” The district court concluded that the

Jeanmaries’ claims of assault and battery and of false arrest and

imprisonment were barred by the application of a decision from the

Western District of Texas holding that the customs-duty exception

barred claims for emotional distress and excessive force arising

from a customs inspection. See Rivera v. United States,

(W.D. Tex. 1995), aff’d, No. 96-50117 (5th Cir.

November 14, 1996)(per curiam)(unpublished). The district court

also concluded that the Jeanmaries’ claims of negligent supervision

and training were barred by the discretionary function exception,

(a), as they involved elements of judgment and

discretion and public policy.

The Jeanmaries filed numerous motions for reconsideration of

the district court’s order of dismissal, all of which were denied,

and they have now timely appealed.

DISCUSSION

Generally, the United States enjoys sovereign immunity from

suit unless it has specifically waived immunity. See Truman v.

United States,

(5th Cir. 1994). The FTCA provides

for a waiver of the United States’ immunity from suit for those

claims regarding “injury or loss of property, or personal injury or

death arising or resulting from the negligent or wrongful act or

omission of any employee of the Government while acting within the

4 scope of his office or employment . . . .”

(b)(1).

Of course, the FTCA contains numerous exceptions to the general

waiver of immunity, among them the customs-duty exception found in

§ 2680(c), and the discretionary function exception found in

§ 2680(a), upon both of which the district court based its

dismissal of the Jeanmaries’ claims.

We review a district court’s grant of a motion to dismiss

based on exceptions to the FTCA de novo. See Leleux v. United

States,

(5th Cir. 1999). A district court’s

dismissal based on these exceptions will be affirmed if it appears

certain that the plaintiffs can prove no set of facts in support of

their claims which would entitle them to relief. See

In our

review, we accept all of the nonmovant’s well-pleaded factual

allegations as true, but we may not rely upon conclusional

allegations or legal conclusions that are disguised as factual

allegations. See Blackburn v. City of Marshall,

(5th Cir. 1995).

We pause here to note at the outset that the Jeanmaries have

not argued on appeal that the district court erred in dismissing

their claims of negligent training and supervision based upon the

discretionary function exception to the FTCA’s waiver of sovereign

immunity. Accordingly, we deem these matters waived. See Yohey v.

Collins,

(5th Cir. 1993) (even parties

proceeding pro se must brief an issue in order to preserve it for

5 appeal).

With respect to the Jeanmaries’ claims of assault and battery,

and of false arrest and imprisonment, they claim that the district

court’s dismissal under § 2680(c), the customs-duty exception, was

erroneous. Section 2680(c) specifically provides that the FTCA’s

waiver of immunity does not apply to:

Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law-enforcement officer . . . .

(c).

According to the Jeanmaries, § 2680(h) provides an “exception

to the [§ 2680(c)] exception” to the FTCA’s waiver of immunity

which the district court ignored. They note that § 2680 was

amended and subsection (h) was enacted to allow for the waiver of

sovereign immunity in order to provide a remedy against the United

States for those intentional torts committed by federal law

enforcement officials. See S. Rep. No. 93-588 (1974), reprinted in

1974 U.S.C.C.A.N. 2789, 2791. Specifically, § 2680(h) provides

that the FTCA’s waiver of immunity does not apply to:

Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title [i.e., the waiver of immunity] shall apply to

6 any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, "investigative or law enforcement officer" means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.

(h). The Jeanmaries rely on the portion of

§ 2680(h) which specifically provides that the waiver of immunity

applies to their claims of assault and battery and of false arrest

and imprisonment against federal law enforcement officers.

The district court, in dismissing the Jeanmaries’ claims,

relied upon the decision of one of its sister courts within the

Western District of Texas. The district court noted that in Rivera

v. United States,

(W.D. Tex. 1995), aff’d,

No. 96-50117 (5th Cir. November 14, 1996)(per curiam)(unpublished),

its sister court concluded that notwithstanding § 2680(h), the

customs-duty exception barred intentional tort claims for emotional

distress and excessive force arising from a customs inspection. In

Rivera, the plaintiffs filed an FTCA claim against Customs agents

who restrained Mrs. Rivera with a “wrist/arm lock” during the

inspection of her vehicle at a port of entry, and the district

court concluded that the actions complained of occurred during the

performance of the Customs agent’s official duties and were thus

covered by the customs-duty exception in § 2680(c). In affirming

the district court, we noted in our unpublished opinion that:

7 The temporary seizure of Mrs. Rivera was carried out in the course and as part of the lawful detention and search by U.S. Customs officials during a customs inspection of a vehicle at a border entry point. Claims against the government for [the officer’s] actions, therefore, fall squarely within one of the enumerated exceptions to the government’s waiver of sovereign immunity, specifically, the “customs exception” to the Federal Tort Claims Act.

(c).

Rivera v. United States, No. 96-50117 at 2 (5th Cir. November 14,

1996)(per curiam) (unpublished).

The Rivera district court did note additionally that a claim

of an intentional tort related to a customs arrest may not be

covered by § 2680(c), as that section deals only with the detention

of goods, not persons. See Rivera,

(citing

Gasho v. United States,

(9th Cir. 1994)). The Rivera

district court reasoned that an intentional-tort claim involving

the infliction of emotional distress during an arrest following a

search by a Customs agent did not fall within § 2680(c) because

such a tort was incident, not to a detention of goods, but to the

detention of a person after the search for and detention of goods

was completed. See Rivera,

.

However, the district court also noted that in Capozzoli v.

Tracey,

(5th Cir. 1981), a case wherein an IRS

agent entered the plaintiff’s property without notice and took

pictures of the home while the plaintiff was in nightclothes and

was embarrassed, we held that the customs-duty exception’s phrase

8 “in respect of the assessment or collection of any tax” is broad

enough to encompass the activities of a Customs agent which are

even “remotely related to his or her official duties.” In

Capozzoli, we noted that in enacting § 2680(c), Congress intended

to insulate IRS and Customs agents from tort liability stemming

from any of their revenue-raising activities. Capozzoli,

.

Relying on both Rivera and our holding in Capozzoli, the

district court in this case concluded that § 2680(c)’s exception

has been broadly construed and that the actions complained of by

the Jeanmaries, like those in Rivera, occurred during the

performance of a Customs agent’s official duties and arose out of

the detention of goods. Since the Jeanmaries’ claims for assault

and battery and for false arrest and imprisonment arose out of and

were associated in some way with the detention of goods, the

district court concluded that those claims were barred by §

2680(c), the customs-duty exception.

The Jeanmaries contend that Rivera is not applicable because

in that case, the plaintiff resisted and refused to obey repeated

requests to step away from her car, and in this case, Jeanmarie

complied immediately with the agents’ requests. The record belies

this assertion in that Jeanmarie concedes that he specifically

disregarded the agents’ directive that he not remove himself from

the scene by walking away to find a restroom. Alternatively, the

9 Jeanmaries rely on the language in § 2680(h) stating that the

FTCA’s waiver of immunity applies to claims of assault, battery,

and false arrest and imprisonment. Again, we disagree with the

Jeanmaries and instead agree with the reasoning of the Ninth

Circuit in Gasho that, notwithstanding the fact that intentional

tort claims arising out of arrests are not barred by § 2680(c), and

are in fact permitted by § 2680(h), such claims are barred by the

customs-duty exception if the alleged torts arose from the

inspection, seizure, or detention of goods by a Customs agent

because such claims involve conduct covered by § 2680(c). See

Gasho,

; see also Capozzoli,

(actions even remotely related to a Customs agent’s official duties

are covered by the exception in § 2680(c)).

Statutes waiving sovereign immunity of the United States are

to be “construed strictly in favor of the sovereign.” McMahon v.

United States,

(1951). We agree with the Ninth

Circuit that “[w]hen strictly construed in light of § 2680(c), the

waiver of immunity in § 2680(h) applies only to tortious conduct

not involving the seizure and detention of goods by Customs.”

Gasho,

. Therefore, we decline to apply

§ 2680(h) to override § 2680(c)’s exception to the FTCA’s general

waiver of sovereign immunity in situations where, as here, the

alleged intentional tort is committed incident to the performance

of an agent’s duties under § 2680(c). In this case, we are

10 convinced that the actions complained of by the Jeanmaries were

related to the Customs agents’ official duties in inspecting and

detaining goods and that § 2680(c) is broad enough to cover those

actions.

The Jeanmaries have asserted several additional bases for

relief from the district court’s order, including, among other

things, a contention that the doctrine of sovereign immunity is

unconstitutional because it prohibits them from seeking redress

under the First Amendment for the Customs agents’ use of excessive

force and an assertion for the first time on appeal that they have

asserted a legitimate claim for relief under Bivens v. Six Unknown

Fed. Narcotics Agents,

(1971). We decline to

discuss the Jeanmaries’ additional arguments as we find each devoid

of merit.

CONCLUSION

Having carefully reviewed the record of this case and the

parties’ respective briefing on the issues in this appeal, and for

the reasons set forth above, we conclude that the Jeanmaries’

various claims are barred by the discretionary function and

customs-duty exceptions to the FTCA, and we AFFIRM the district

court’s order of dismissal.

AFFIRMED.

11