     11-61
     Liranzo v. United States




 1                        UNITED STATES COURT OF APPEALS

 2                               FOR THE SECOND CIRCUIT

 3                                  August Term, 2011

 4   (Argued: January 30, 2012                         Decided: August 9, 2012)

 5                                  Docket No. 11-61

 6                   -------------------------------------

 7          VITERBO LIRANZO, AKA VITERBO IGNACIO LIRANZO DICENT,

 8                                Plaintiff-Appellant,

 9                                        - v -

10                              UNITED STATES OF AMERICA,

11                                 Defendant-Appellee.

12                   -------------------------------------

13   Before:     SACK, RAGGI, and CHIN, Circuit Judges.
14
15               Appeal by the plaintiff from a judgment of the United

16   States District Court for the Eastern District of New York

17   (Sandra J. Feuerstein, Judge) dismissing for lack of subject

18   matter jurisdiction the plaintiff's claims relating to his

19   mistaken detention as a removable resident alien.          The district

20   court concluded that subject matter jurisdiction was lacking over

21   the plaintiff's Federal Tort Claims Act claims because there was

22   no private analogue to the immigration detention suffered by the

23   plaintiff, as required to find a waiver of the United States'

24   sovereign immunity under the Act.        Because we conclude that there
 1   is such an analogue, we vacate the judgment of the district court

 2   in part and remand for further proceedings.   We affirm the

 3   district court's judgment insofar as it dismissed the plaintiff's

 4   Fourth Amendment claim, which he does not challenge on appeal.

 5             Affirmed in part, reversed in part, and remanded.

 6                              LAWRENCE K. KATZ, Katz & Kreinces LLP,
 7                              Mineola, NY, for Plaintiff-Appellant.

 8                              JAMES H. KNAPP (Margaret M. Kolbe,
 9                              Varuni Nelson, on the brief), Assistant
10                              United States Attorneys, of counsel, for
11                              Loretta E. Lynch, United States Attorney
12                              for the Eastern District of New York,
13                              Brooklyn, NY, for Defendant-Appellee.

14   SACK, Circuit Judge:

15             In March 2006, plaintiff Viterbo Liranzo, a United

16   States citizen, completed a term of incarceration in New York

17   State prison for felony possession of a controlled substance.

18   Before his release, United States Immigration and Customs

19   Enforcement ("ICE") erroneously identified him as a permanent

20   resident alien who had been convicted of a felony, which rendered

21   him subject to removal.1   He was released to the custody of ICE

          1

               In 1996, Congress enacted the Illegal
               Immigration Reform and Immigrant
               Responsibility Act (IIRIRA), 110 Stat.
               3009-546. . . .
               . . . .
               Before IIRIRA's passage, United States
               immigration law established "two types of
               proceedings in which aliens can be denied the
               hospitality of the United States: deportation
               hearings and exclusion hearings." Exclusion
               hearings were held for certain aliens seeking

                                       2
 1   and transported to a detention center in Louisiana pending

 2   removal. During removal proceedings in Louisiana, it was

 3   discovered that Liranzo is a U.S. citizen, and he was therefore

 4   released.

 5               Thereafter, Liranzo brought the instant complaint in

 6   the United States District Court for the Eastern District of New

 7   York against the United States under the Federal Tort Claims Act

 8   ("FTCA" or the "Act") alleging, inter alia, that federal

 9   immigration officials had falsely arrested and imprisoned him.

10   Following some two years of discovery, the matter was set for

11   trial.   But before trial began, the district court (Sandra J.

12   Feuerstein, Judge) granted the government's motion to dismiss the

13   case for lack of subject matter jurisdiction because, the court

14   concluded, there was no private analogue to the immigration

15   detention suffered by plaintiff, as required for the Act to have




                 entry to the United States, and deportation
                 hearings were held for certain aliens who had
                 already entered this country. . . .
                 . . . .
                 In IIRIRA, Congress abolished the distinction
                 between exclusion and deportation procedures
                 and created a uniform proceeding known as
                 "removal." See 8 U.S.C. §§ 1229, 1229a.

     Vartelas v. Holder, 132 S. Ct. 1479, 1483-84 (2012) (citations
     omitted). In this opinion we therefore use the term "removal"
     instead of "deportation." We have not, however, changed the term
     "deportation" in quotations of the district court or of either
     party.

                                       3
 1   worked a waiver of the United States' sovereign immunity from

 2   suit.

 3               Inasmuch as we conclude that there is such an analogue,

 4   we reverse and remand for further proceedings.    We affirm the

 5   district court's judgment insofar as it dismissed the plaintiff's

 6   Fourth Amendment claim, which he does not challenge on appeal.

 7                                BACKGROUND2

 8               Liranzo's Citizenship

 9               Plaintiff Viterbo Liranzo was born on May 10, 1955, in

10   the Dominican Republic.   He entered the United States as a lawful

11   permanent resident in 1965 when he was ten years old.     On

12   February 24, 1972, pursuant to a Dominican divorce decree, the

13   plaintiff's mother, Augustina Dicent, was awarded custody of

14   Liranzo.    On October 6, 1972, when Liranzo was sixteen years old,

15   his mother became a naturalized U.S. citizen.    Because he was a

16   lawful permanent resident in his mother's custody when she was

17   naturalized, and he was younger than eighteen years old at the

18   time, Liranzo obtained derivative citizenship on that date under

19   the immigration laws then in force.     See Immigration and

20   Nationality Act ("INA") § 321(a)(3), 8 U.S.C. § 1432(a)(3)



             2
             The material facts relevant to the issue on appeal are
     not in dispute. The facts are drawn from the record in the
     district court, the parties' representations before this Court,
     and the parties' pre-trial statement of stipulated facts. See
     Am. Proposed Pre-Trial Order at 1-3, Liranzo v. United States,
     No. 08 Civ 2940 (SJF)(ARL) (E.D.N.Y. July 8, 2010), ECF No. 31.
                                         4
 1   (repealed 2000) (providing for derivative citizenship upon, inter

 2   alia, the "naturalization of the parent having legal custody of

 3   the child when there has been a legal separation of the

 4   parents").

 5                Derivative citizenship under section 321 of the INA was

 6   "automatic; that is, when certain conditions exist[ed], a child

 7   bec[ame] a U.S. citizen even though neither parent, nor the

 8   child, ha[d] requested it."    Lewis v. Gonzales, 481 F.3d 125, 131

 9   (2d Cir. 2007) (per curiam).    Nonetheless, under that regime, the

10   government did not issue a certificate of naturalization to

11   children who obtained derivative citizenship until such a

12   certificate was sought by the child or a parent.3    See 8 C.F.R. §

13   320.3.   Thus, apparently because Liranzo did not know he had

14   become a citizen, he continued to renew his "resident alien card"

15   (or "green card") until the mid-1990s.     Liranzo's last green card

16   was effective through June 10, 2006.     As a result of the

17   renewals, at the time of the events in question, federal

18   immigration records erroneously listed Liranzo as a lawful

19   permanent resident rather than as a citizen.



20



          3
             After the events in question, on May 15, 2007, Liranzo
     obtained a certificate of citizenship. The government does not
     dispute that Liranzo obtained derivative citizenship on October
     6, 1972.
                                        5
 1              Liranzo's New York State Conviction
 2              and Subsequent Immigration Detention
 3
 4              In approximately September 2005, Liranzo was convicted

 5   of criminal sale of a controlled substance in the fourth degree

 6   in violation of New York Penal Law section 220.34 for selling

 7   cocaine.   He was incarcerated at the Nassau County Correctional

 8   Center ("NCCC") in East Meadow, New York.    His term of

 9   incarceration was scheduled to end on or about March 17, 2006.

10              While Liranzo was serving his sentence, ICE agents

11   identified him as a resident alien convicted of a drug felony

12   through ICE's Criminal Alien Program.4    ICE issued an immigration

13   detainer to NCCC officials requesting that they release Liranzo

14   only into ICE's custody so that he could be removed from the

15   United States.   See generally 8 C.F.R. § 287.7(a) (describing the

16   nature and purpose of immigration detainers).     Because of the

17   detainer, Liranzo was held at the NCCC for approximately seven

18   days beyond his projected release date.




          4
             Pursuant to the Criminal Alien Program, ICE attempts to
     identify removable "aliens who are incarcerated within federal,
     state and local prisons and jails" so that it can "process[] the
     alien expeditiously and secur[e] a final order of removal for an
     incarcerated alien[, ideally] before the alien is released to ICE
     custody." Criminal Alien Program, ICE,
     http://www.ice.gov/criminal-alien-program/ (last visited July 18,
     2012). By identifying removable incarcerated aliens before their
     release from prison, ICE endeavors to "decrease[] or eliminate[]
     the time spent in ICE custody [prior to the alien's removal] and
     reduce[] the overall cost to the federal government." Id.
                                      6
 1              According to Liranzo, he was interviewed by an ICE

 2   representative at the prison.   Liranzo asserts that he told the

 3   ICE representative that he, Liranzo, was a United States Citizen.

 4   Liranzo also alleges that his sister spoke to another ICE

 5   representative and provided the representative with Liranzo's

 6   mother's naturalization papers.

 7              On or about March 24, 2006, ICE took Liranzo into

 8   custody.   ICE also served him with a Notice to Appear for removal

 9   proceedings, charging him as a removable alien who had committed

10   an aggravated felony.   He was first held in an ICE detention

11   facility in Manhattan for some 23 hours, then taken to a facility

12   in Freehold, New Jersey, where he was held for another seven

13   days.   Thereafter, he was transported to the Federal Detention

14   Center at Oakdale, Louisiana.

15              Liranzo's removal proceedings, during which he was

16   represented by counsel, began in Oakdale.   On May 3, 2006, the

17   proceedings were adjourned to allow Liranzo's attorney to gather

18   documents for the purpose of substantiating Liranzo's claim to

19   citizenship.   On or about May 21, 2006, his attorney filed a

20   motion to terminate the proceedings supported by Liranzo's birth

21   certificate and his mother's naturalization certificate and

22   divorce decree.

23              Thereafter, government officials investigated the

24   validity of Liranzo's mother's divorce decree and her award of


                                       7
 1   custody of Liranzo to determine whether he would have met the

 2   applicable requirements for derivative citizenship.     These issues

 3   were determined in Liranzo's favor on or about June 21, 2006.

 4                On June 30, 2006, ICE released Liranzo.   He was taken

 5   to a bus terminal in Louisiana, where he arranged for his own

 6   transportation back to New York City.     With ICE's consent,

 7   removal proceedings were formally terminated on or about July 20,

 8   2006.

 9                District Court Proceedings

10                After exhausting his administrative remedies by filing

11   a claim with the Department of Homeland Security, Liranzo filed

12   the instant complaint in the United States District Court for the

13   Eastern District of New York against the United States on July

14   18, 2008.    He sought five million dollars in damages for "false

15   arrest and imprisonment" and other torts allegedly committed by

16   government officials in connection with his immigration

17   detention.    On February 6, 2009, the United States answered the

18   complaint, elliptically asserting as one of its defenses that

19   Liranzo's claims were "subject to, and limited by," the FTCA.

20   Am. Answer at 4, Liranzo v. United States, No. 08 Civ. 2940

21   (SJF)(ARL) (E.D.N.Y. Feb. 6, 2009), ECF No. 9.    After nearly two

22   years of discovery, a bench trial was scheduled to begin on




                                        8
 1   December 13, 2010.5   No motion to dismiss was made, and no

 2   motions for summary judgment were made by either party.

 3               Federal Rule of Civil Procedure 12(h)(3) provides that

 4   "[i]f the court determines at any time that it lacks

 5   subject-matter jurisdiction, the court must dismiss the action."

 6   FED. R. CIV. P. 12(h)(3); see also Weinstein v. Iran, 609 F.3d 43,

 7   47 (2d Cir. 2010) ("[S]ubject matter jurisdiction may be raised

 8   at any point . . . ."), cert. denied, --- S. Ct. ----, No. 10-

 9   947, 2012 WL 2368690, 2012 U.S. LEXIS 4760 (June 25, 2012).    On

10   December 8, 2010, just five days before the scheduled start of

11   the bench trial, the government submitted a letter motion seeking

12   dismissal of the complaint for lack of subject matter

13   jurisdiction.   The government premised its motion on the

14   defendant's sovereign immunity from suit based on the limited

15   nature of the FTCA's waiver of that sovereign immunity.     See Wake

16   v. United States, 89 F.3d 53, 57 (2d Cir. 1996) ("Absent a

17   waiver, sovereign immunity shields the federal Government and its

18   agencies from suit.   Thus, sovereign immunity is jurisdictional

19   in nature.") (ellipsis, brackets, and internal quotation marks

20   omitted).   The waiver extends only to claims for which a private

21   analogue exists -- that is, the waiver extends only to claims

22   that could be brought against a "private individual under like


          5
             With exceptions not relevant here, jury trials are not
     available to plaintiffs bringing claims against the United States
     under the FTCA. See 28 U.S.C. § 2402.
                                       9
 1   circumstances," 28 U.S.C. § 2674 –- permitting the government to

 2   be held liable only "under circumstances where the United States,

 3   if a private person, would be liable to the claimant in

 4   accordance with the law of the place where the act or omission

 5   occurred," id. § 1346(b)(1).

 6               The government's "chief legal argument" was that there

 7   was no private analogue to immigration detentions because

 8   "citizenship determinations and immigration matters are federal

 9   functions reserved to the federal government, and, . . . because

10   a private individual cannot engage in such determinations, the

11   United States has not waived sovereign immunity on claims related

12   thereto."   Def.'s Reply Letter Br. at 1, Liranzo v. United

13   States, No. 08 Civ. 2940 (SJF)(ARL) (E.D.N.Y. Dec. 14, 2010), ECF

14   No. 38 ("Def.'s Reply Letter Br.") (emphasis in original).

15               Although the government acknowledged that the FTCA

16   explicitly permits claims for false imprisonment to be brought

17   against the United States based on the acts of federal law

18   enforcement agents, see 28 U.S.C. § 2680(h) (waiving sovereign

19   immunity for claims against "investigative or law enforcement

20   officers of the United States Government . . . arising . . . out

21   of assault, battery, false imprisonment, false arrest, abuse of

22   process, or malicious prosecution"), the government urged the

23   district court to "look beyond the labels attached by Plaintiff

24   to his claims."   Def.'s Letter Br. at 3, Liranzo v. United


                                      10
 1   States, No. 08 Civ. 2940 (SJF)(ARL) (E.D.N.Y. Dec. 8, 2010), ECF

 2   No. 35 ("Def.'s Letter Br.").     According to the government,

 3   despite the label, Liranzo's claims "arise[] from the ICE agents'

 4   alleged negligent/erroneous citizenship determination of

 5   Plaintiff and their resultant attempts to apply federal

 6   immigration statutes to effectuate his deportation."    Id.

 7   Further, the government asserts, Liranzo "attempt[ed] to cloth[e]

 8   'federal function tort claims' (over which the United States has

 9   not waived sovereign immunity) in 'law enforcement intentional

10   tort' garb (over which the United States has waived sovereign

11   immunity)."    Def.'s Reply Letter Br. at 2.

12                Liranzo responded that "[h]ad a private individual held

13   plaintiff prisoner for 105 days, New York would allow plaintiff

14   to recover."    Pl.'s Letter Br. at 1-2, Liranzo v. United States,

15   No. 08 Civ. 2940 (SJF)(ARL) (E.D.N.Y. Dec. 9, 2010), ECF No. 36.

16   Therefore, Liranzo argued, a private analogue to the claims

17   asserted in the complaint existed.

18                By memorandum and order dated December 15, 2010, the

19   district court dismissed the action for lack of subject matter

20   jurisdiction pursuant to Rule 12(h)(3).    It reasoned that

21   "[i]mmigration and detention pending deportation are governed

22   exclusively by federal law and therefore have no private

23   analogue."    Mem. & Order at 9, Liranzo v. United States, No. 08

24   Civ. 2940 (SJF)(ARL) (E.D.N.Y. Dec. 15, 2010), ECF. No. 41 ("Mem.


                                       11
 1   & Order").    It also read this Court's precedents, including Caban

 2   v. United States, 671 F.2d 1230 (2d Cir. 1982) ("Caban I"), and

 3   Caban v. United States, 728 F.2d 68 (2d Cir. 1984) ("Caban II"),

 4   as indicating that for FTCA purposes, there is no private

 5   analogue for federal immigration detentions.      It concluded that,

 6   "[a]s plaintiff's intentional tort claims are based upon the

 7   detention of plaintiff pending deportation proceedings and the

 8   process the immigration agents used to determine his citizenship

 9   status, plaintiff has not established that a comparable cause of

10   action would exist against a private individual pursuant to New

11   York State law."    Mem. & Order at 10.

12                Liranzo appealed from the judgment of dismissal.

13                                 DISCUSSION

14                When reviewing the dismissal of a complaint for lack of

15   subject matter jurisdiction, we review factual findings for clear

16   error and legal conclusions de novo, accepting all material facts

17   alleged in the complaint as true and drawing all reasonable

18   inferences in the plaintiff's favor.       Morrison v. Nat'l Austl.

19   Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff'd on other

20   grounds, 130 S. Ct. 2869 (2010).       "The plaintiff bears the burden

21   of proving subject matter jurisdiction by a preponderance of the

22   evidence."    Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d

23   635, 638 (2d Cir. 2005).    The United States' waiver of immunity

24   under the FTCA "is to be strictly construed in favor of the


                                       12
 1   government."   Long Island Radio Co. v. NLRB, 841 F.2d 474, 477

 2   (2d Cir. 1988).

 3             I. The FTCA's Private Analogue Requirement

 4             "'The United States, as sovereign, is immune from suit

 5   save as it consents to be sued . . . , and the terms of its

 6   consent to be sued in any court define that court's jurisdiction

 7   to entertain the suit.'"   United States v. Mitchell, 445 U.S.

 8   535, 538 (1980) (quoting United States v. Sherwood, 312 U.S. 584,

 9   586 (1941)) (brackets omitted).6     In 1946, Congress enacted the

10   Federal Tort Claims Act, which "constitutes a limited waiver by

11   the United States of its sovereign immunity and allows for a tort

12   suit against the United States under specified circumstances."7


          6
             The United States' sovereign immunity from suit is
     ultimately derived from English common law. "While the political
     theory that the King could do no wrong was repudiated in America,
     a legal doctrine derived from it that the Crown is immune from
     any suit to which it has not consented was invoked on behalf of
     the Republic and applied by our courts as vigorously as it had
     been on behalf of the Crown." Feres v. United States, 340 U.S.
     135, 139 (1950) (footnote omitted).
          7
             Prior to the passage of the FTCA in 1946, if a private
     individual was injured by a federal employee, he could only seek
     relief from the federal government by petitioning Congress to
     pass a "private bill" compensating him for his injuries.
               Relief was often sought and sometimes granted
               through private bills in Congress, the number
               of which steadily increased as Government
               activity increased. The volume of these
               private bills, the inadequacy of
               congressional machinery for determination of
               facts, the importunities to which claimants
               subjected members of Congress, and the
               capricious results, led to [the passage of

                                     13
 1   Hamm v. United States, 483 F.3d 135, 137 (2d Cir. 2007)

 2   (quotation marks omitted).    The FTCA provides jurisdiction in the

 3   federal courts and waives the sovereign immunity of the United

 4   States for

 5                claims against the United States, for money
 6                damages . . . for . . . injury or loss of
 7                property, or personal injury or death caused
 8                by the negligent or wrongful act or omission
 9                of any employee of the Government while
10                acting within the scope of his office or
11                employment, under circumstances where the
12                United States, if a private person, would be
13                liable to the claimant in accordance with the
14                law of the place where the act or omission
15                occurred.
16
17   28 U.S.C. § 1346(b)(1); see also 28 U.S.C. § 2674 ("The United

18   States shall be liable, respecting the provisions of this title

19   relating to tort claims, in the same manner and to the same

20   extent as a private individual under like circumstances.").

21                As originally enacted, the FTCA barred all suits

22   against the government "arising out of . . . false

23   imprisonment[ and] false arrest."      28 U.S.C. § 2680(h) (1970).

24   But in 1974, Congress enacted amendments to the FTCA principally



                  the FTCA in 1946, in which the
                  government] . . . waived immunity and
                  transferred the burden of examining tort
                  claims to the courts.

     Feres, 340 U.S. at 140; see also Erwin Chemerinsky, FEDERAL
     JURISDICTION 663 (6th ed. 2012). The FTCA put an end to the
     "notoriously clumsy" "private bill device." Dalehite v. United
     States, 346 U.S. 15, 24-25 (1953), abrogation recognized by
     Rayonier Inc. v. United States, 352 U.S. 315, 319 (1957).

                                       14
 1   in response to abuses committed by federal law enforcement

 2   officers in connection with "no-knock" drug raids in

 3   Collinsville, Illinois, in which officers raided the wrong

 4   families' homes.    See generally Stanton R. Gallegos, Note, Are

 5   Police People Too?    An Examination of the Federal Tort Claims

 6   Act's "Private Person" Standard as it Applies to Federal Law

 7   Enforcement Activities, 76 BROOK. L. REV. 775, 780-82 (2011).

 8   Under the 1974 amendments, the FTCA explicitly waives sovereign

 9   immunity "with regard to acts or omissions of investigative or

10   law enforcement officers of the United States,"8 for "any claim

11   arising . . . out of assault, battery, false imprisonment, false

12   arrest, abuse of process, or malicious prosecution."9    28 U.S.C.

13   § 2680(h).

14                By waiving sovereign immunity "under circumstances

15   where the United States, if a private person, would be liable to

16   the claimant in accordance with the law of the place where the

17   act or omission occurred," id. § 1346(b)(1), the FTCA directs

18   courts to consult state law to determine whether the government



          8
            "'[I]nvestigative 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." 28 U.S.C. § 2680(h).
          9
            The FTCA's jurisdictional provision, 28 U.S.C. § 1346(b),
     as well as the FTCA's procedural provisions, which include the
     private analogue requirement set forth in 28 U.S.C § 2674,
     "apply" to the 1974 amendments' waiver of sovereign immunity for
     the enumerated intentional torts. See 28 U.S.C. § 2680(h).

                                       15
 1   is liable for the torts of its employees.   See FDIC v. Meyer, 510

 2   U.S. 471, 478 (1994) ("[The] law of the State [is] the source of

 3   substantive liability under the FTCA."); Feres, 340 U.S. at 142

 4   ("This provision recognizes and assimilates into federal law the

 5   rules of substantive law of the several states . . . .").    The

 6   FTCA does not waive sovereign immunity for claims based solely on

 7   alleged violations of federal law.    Meyer, 510 U.S. at 478.

 8               "[T]he Act requires a court to look to the state-law

 9   liability of private entities, not to that of public entities,

10   when assessing the Government's liability under the FTCA [even]

11   in the performance of activities which private persons do not

12   perform."   United States v. Olson, 546 U.S. 43, 46 (2005)

13   (internal quotation marks omitted).   It does not waive sovereign

14   immunity for claims against the government based on governmental

15   "action of the type that private persons could not engage in and

16   hence could not be liable for under local law."   Chen v. United

17   States, 854 F.2d 622, 626 (2d Cir. 1988) (internal quotation

18   marks omitted).

19               The path of the case law on the FTCA's private analogue

20   requirement is long, winding, and sparsely marked.   We therefore

21   think a rehearsal of the history of that case law may be helpful.

22   A.   The Supreme Court's Private Analogue Jurisprudence

23               In Feres, one of the Supreme Court's early FTCA cases,

24   the Court considered the private analogue requirement as applied


                                      16
 1   to servicemen injured in active duty "due to negligence of others

 2   in the armed forces."    340 U.S. at 138.   In the consolidated

 3   cases comprising Feres, one plaintiff was killed in an army

 4   barracks fire, one plaintiff had a towel left in his abdomen

 5   following surgery performed by an Army doctor, and another

 6   plaintiff died following surgery performed by Army surgeons, all

 7   allegedly resulting from negligence of Army personnel.     Id. at

 8   136-37.    All three (or their respective estates) sought damages

 9   under the FTCA.   Id.

10               In considering whether the FTCA waived the United

11   States' sovereign immunity for the plaintiffs' claims, the Court

12   conceded that "[i]n the usual civilian doctor and patient

13   relationship, there is of course a liability for malpractice.

14   And a landlord would undoubtedly be held liable if an injury

15   occurred to a tenant as the result of a negligently maintained

16   heating plant."   Id. at 142.    But the Court reasoned that such

17   analogies are sound only if one "consider[s] relevant only a part

18   of the circumstances and ignore[s] the status of both the wronged

19   and the wrongdoer."     Id.   Under the FTCA, "the liability assumed

20   by the Government . . . is that created by 'all the

21   circumstances,' not that which a few of the circumstances might

22   create."    Id.

23               The Feres Court concluded that "there [was no]

24   liability 'under like circumstances,' for no private individual


                                        17
 1   has power to conscript or mobilize a private army with such

 2   authorities over persons as the Government vests in echelons of

 3   command."   Id. at 141-42.

 4               The relationship between the Government and
 5               members of its armed forces is 'distinctively
 6               federal in character' . . . . To whatever
 7               extent state law may apply to govern the
 8               relations between soldiers or others in the
 9               armed forces and persons outside them or
10               nonfederal governmental agencies, the scope,
11               nature, legal incidents and consequence of
12               the relation between persons in service and
13               the Government are fundamentally derived from
14               federal sources and governed by federal
15               authority.

16   Id. at 143-44.   Thus, because "the relationship of military

17   personnel to the Government has been governed exclusively by

18   federal law," id. at 146, "the Government is not liable under the

19   Federal Tort Claims Act for injuries to servicemen where the

20   injuries arise out of or are in the course of activity incident

21   to service," id.

22               But just five years later, the Court adopted a broader

23   view of the private analogue requirement, albeit in a non-

24   military context.     In Indian Towing Co. v. United States, 350

25   U.S. 61 (1955), the plaintiff's tug boat went aground after the

26   battery in a lighthouse operated by the Coast Guard ran out of

27   power.   Id. at 62.    Indian Towing brought a negligence claim

28   against the Coast Guard under the FTCA based on the failure of

29   its employees to maintain the lighthouse in working order.     Id.

30   at 61-62.   The government argued that the private analogue

                                       18
 1   requirement "must be read as excluding liability in the

 2   performance of activities which private persons do not

 3   perform[,] . . . [i.e.,] 'uniquely governmental functions.'"      Id.

 4   at 64.   Because only the Coast Guard operated lighthouses, the

 5   government argued that this function was uniquely governmental,

 6   and that no private analogue existed.   Id.

 7              The Court rejected the government's proposed test for

 8   liability on the ground that "all Government activity is

 9   inescapably 'uniquely governmental' in that it is performed by

10   the Government."   Id. at 67.   Conversely, "it is hard to think of

11   any governmental activity on the 'operational level,' our present

12   concern, which is 'uniquely governmental,' in the sense that its

13   kind has not at one time or another been, or could not

14   conceivably be, privately performed."   Id. at 68.

15              The Court also observed that the statutory phrase

16   "under like circumstances" does not mean "under the same

17   circumstances."    Id. at 64 (emphases added).   The fact that there

18   were no private lighthouses in operation at the time did not mean

19   that there was no private analogue.

20              [I]f the United States were to permit the
21              operation of private lighthouses -- not at
22              all inconceivable -- the Government's basis
23              of differentiation would be gone and the
24              negligence charged in this case would be
25              actionable. Yet there would be no change in
26              the character of the Government's activity[,]
27              . . . and [it is unlikely that Congress
28              would] predicat[e] liability on such a


                                      19
 1                completely fortuitous circumstance -- the
 2                presence of identical private activity.

 3   Id. at 66-67.

 4                The Court concluded that the relevant private analogue

 5   at issue was the duty imposed on the private "good Samaritan":

 6   "[O]ne who undertakes to warn the public of danger and thereby

 7   induces reliance must perform his 'good Samaritan' task in a

 8   careful manner."    Id. at 64-65.    "The Coast Guard need not

 9   undertake the lighthouse service.        But once it exercised its

10   discretion to operate [the] light . . . and engendered reliance

11   on the guidance afforded by the light, it was obligated to use

12   due care to make certain that the light was kept in good working

13   order . . . ."    Id. at 69.    Because of the existence of this

14   private analogue, "[i]f the Coast Guard failed in its duty and

15   damage was thereby caused to petitioners, the United States is

16   liable under the Tort Claims Act."       Id.

17                Rayonier Inc. v. United States, 352 U.S. 315 (1957)

18   signaled a further narrowing of the Court's view of Feres's

19   reasoning.    There, the plaintiffs alleged that their property was

20   damaged by the United States Forest Service's negligent failure

21   to control a forest fire.      Id. at 315-16.    The government argued

22   that there was no private analogue because "neither the common

23   law nor the law of [the State of] Washington imposes liability on

24   municipal or other local governments for the negligence of their

25   agents acting in the 'uniquely governmental' capacity of public

                                         20
 1   firemen."   Id. at 318-19.    The Court rejected the government's

 2   argument because the relevant consideration is whether state law

 3   would impose liability on a "private person" rather than on a

 4   "municipal corporation or other public body" for "similar

 5   negligence" as allegedly committed by the government in the case

 6   at hand.    Id. at 319.   In doing so, the Court disapproved of

 7   Dalehite v. United States, 346 U.S. 15, 43-44 (1953), which had

 8   relied on Feres and the common law "immunity of . . . public

 9   bodies for injuries due to fighting fire" to conclude that there

10   was no private analogue to the Coast Guard's firefighting

11   efforts, id. at 44.   See Rayonier, 352 U.S. at 319.    The Court

12   remanded for consideration of whether state law would hold a

13   private person fighting a fire in similar circumstances liable.

14   Id. at 320-21.

15               In United States v. Muniz, 374 U.S. 150 (1963), the

16   Supreme Court continued to constrict the reach of the rationales

17   relied upon in Feres.     There, the Court considered whether suit

18   could be brought under the FTCA for "personal injuries sustained

19   during confinement in a federal prison, by reason of the

20   negligence of a government employee."    Id. at 150.   The

21   government argued that Feres defeated a private analogy, because,

22   among other things, "the relationship between the federal

23   prisoner and his custodians" is "uniquely federal in character."

24   Br. for United States, United States v. Muniz, 374 U.S. 150


                                       21
 1   (1963), 1963 WL 105602 at *19.    A unanimous Court (Justice White

 2   not participating) rejected the government's reliance on Feres.

 3   The Court reasoned that "[i]n the last analysis, Feres seems best

 4   explained by the peculiar and special relationship of the soldier

 5   to his superiors, the effects of the maintenance of such suits on

 6   discipline, and the extreme results that might obtain if suits

 7   under the Tort Claims Act were allowed for negligent orders given

 8   or negligent acts committed in the course of military duty."      Id.

 9   at 162 (quotation marks and ellipsis omitted).     It concluded

10   that, in the context of the federal prison system, "an analogous

11   form of liability exists.   A number of States have allowed

12   prisoners to recover from their jailers [and from the States] for

13   negligently caused injuries."10   Id. at 159-60.

14             Most recently, in a brief unanimous opinion in United

15   States v. Olson, 546 U.S. 43 (2005), the Court reaffirmed the

16   principles recognized in Indian Towing and its progeny.     The

17   Court vacated a Ninth Circuit decision in which that court (1)

18   had found "no private-sector analogue for mine inspections," the

19   federal activity about which suit had been brought, id. at 45



          10
             The Muniz Court's decision to look to the liability of
     jailors and the States that employ them seems to be a departure,
     or at least a change in emphasis in a new factual context, from
     Indian Towing's and Rayonier's admonition to examine the
     liability of private individuals under state law when deciding if
     a private analogue exists, rather than the state law liability of
     governmental entities. See also infra section II.B (discussing
     potential analogies to law enforcement and citizen's arrests).

                                       22
 1   (internal quotation marks omitted), but (2) had concluded that

 2   because "unique governmental functions" were at issue and

 3   relevant state law imposed liability on "state and municipal

 4   entities" under the circumstances, the FTCA waived sovereign

 5   immunity, id. (internal quotation marks omitted).   The Supreme

 6   Court concluded that under its jurisprudence, whether state law

 7   imposed such liability on state and municipal entities was

 8   irrelevant to the sovereign immunity waiver, id. at 45-46, and

 9   that there was indeed a relevant private analogy to the liability

10   of "private persons who conduct safety inspections," id. at 47.

11   The Court remanded the case with instructions to "the lower

12   courts [to] decide . . . in the first instance" "precisely which

13   [State] law doctrine applie[d]."     Id. at 48.

14   B.   This Court's Private Analogue
15        Jurisprudence in Non-immigration Cases

16              This Court has had several occasions on which to

17   consider the FTCA's private analogue requirement.   In a trilogy

18   of cases decided in the 1980s, we confronted circumstances we

19   concluded were governed exclusively by federal law, were without

20   private analogue, and with respect to which sovereign immunity

21   had therefore not been waived by the FTCA.

22              In C.P. Chemical Co. v. United States, 810 F.2d 34 (2d

23   Cir. 1987), a producer of formaldehyde-based foam insulation

24   brought suit against the federal government after the Consumer

25   Product Safety Commission announced a ban on the insulation,

                                     23
 1   alleging that the Commission was "gross[ly] negligen[t]" in

 2   failing to follow proper rulemaking procedures and disseminating

 3   false information about the banned insulation.   Id. at 35-36.

 4   The Court began by reviewing the legislative history of the FTCA,

 5   which expressed a clear desire that the "constitutionality of

 6   legislation, or the legality of a rule or regulation, should

 7   [not] be tested through the medium of a damage suit for tort."

 8   Id. at 37 (quoting H.R. REP. NO. 79-1287, at 6 (1945)).   The court

 9   reasoned that "quasi-legislative or quasi-adjudicative action by

10   an agency of the federal government is action of the type that

11   private persons could not engage in and hence could not be liable

12   for under local law."   Id. at 37-38 (quoting Jayvee Brand v.

13   United States, 721 F.2d 385, 390 (D.C. Cir. 1983)) (quotation

14   marks and brackets omitted).   Because there was "simply no

15   comparable rulemaking activity in private life," we decided that

16   "[t]he Commission's conduct clearly was a quasi-legislative

17   activity for which we find no private counterpart."   Id. at 38.

18             In Chen, a printing company brought FTCA claims against

19   the government based on the General Services Administrations's

20   attempt to suspend and debar the company as a federal contractor.

21   854 F.2d at 623.   Most of the plaintiff's claims were "grounded

22   in alleged negligent and willful violations of federal

23   procurement regulations, specifically, those requiring that a

24   contractor receive notice and a hearing prior to any suspension."


                                     24
 1   Id. at 626.    We concluded that "violation of the government's

 2   duties under federal procurement regulations 'is action of the

 3   type that private persons could not engage in and hence could not

 4   be liable for under local law.'"       Id. at 626 (quoting Jayvee

 5   Brand, 721 F.2d at 390).     We contrasted Chen's claims with those

 6   in Birnbaum v. United States, 588 F.2d 319, 326 (2d Cir. 1978),

 7   in which we observed that the "opening and reading of sealed mail

 8   by [the Central Intelligence Agency], just as if by [a] private

 9   party, violates [the] common-law right of privacy."11      Chen, 854

10   F.2d at 626.   We also rejected Chen's proposed private analogue,

11   "wrongful sanctions by private associations against individual

12   members," id., because no such tort liability existed under New

13   York law.   Id. at 626-27.

14               And in Akutowicz v. United States, 859 F.2d 1122 (2d

15   Cir. 1988), the plaintiff brought claims against the government

16   when the State Department decided that he had relinquished his

17   United States citizenship after obtaining French citizenship.

18   Id. at 1123-25.   We noted that "the FTCA does not extend to

19   conduct governed exclusively by federal law, or to conduct of a

20   governmental nature or function, that has no analogous liability



          11
            Though Birnbuam predicted that the New York Court of
     Appeals would recognize a common law right of privacy, we
     subsequently acknowledged that our prophesy had been incorrect,
     and found a failure to state a claim under the "same fact
     pattern" in Hurwitz v. United States, 884 F.2d 684, 685 (2d Cir.
     1989), cert. denied, 493 U.S. 1056 (1990).
                                       25
 1   in the law of torts."   Id. at 1125 (quotation marks and citations

 2   omitted).   We decided that although "the FTCA imposes liability

 3   upon the government to the same extent, and in the same manner,

 4   as a private individual under 'like,' not identical,

 5   circumstances," id. at 1125, "the withdrawal of a person's

 6   citizenship constitutes a quasi-adjudicative action for which no

 7   private analog exists."   Id. at 1126.   "[N]o private citizen is

 8   empowered to certify the loss of American nationality."   Id. at

 9   1125.   Nor were we willing to "analogize the relationship between

10   the government and its citizens with that between a private

11   association and its individual members," because no "cause of

12   action in tort for alleged misconduct by the association [in

13   improperly expelling one of its members]" existed under state

14   law.    Id. at 1126 (quoting Chen, 854 F.2d at 627) (emphasis and

15   quotation marks omitted).

16   C.   This Court's Treatment of FTCA
17        Claims Based on Immigration Detentions

18               In 1982 and 1984, respectively, we addressed FTCA

19   claims more similar to those at issue on this appeal -- claims

20   based on an allegedly erroneous immigration detention.    In Caban

21   I and II, the plaintiff was stopped at John F. Kennedy

22   International Airport upon arrival from the Dominican Republic.

23   Caban I, 671 F.2d at 1230.   Illiterate, he was unable to provide

24   documentation to substantiate his claims of United States

25   citizenship, and his answers to the INS officers' questions

                                      26
 1   regarding his past and citizenship status raised their suspicion

 2   (e.g., he denied knowing his own birthdate).     Caban II, 728 F.2d

 3   at 70.    INS agents detained him for six days, after which they

 4   determined that he was indeed a citizen.   Id.    Caban brought

 5   claims against the United States for false arrest under the FTCA.

 6               In Caban I, this Court concluded that the FTCA's

 7   "discretionary function" exception -- which bars FTCA claims

 8   "based upon the exercise or performance or the failure to

 9   exercise or perform a discretionary function or duty," 28 U.S.C.

10   § 2680(a) -- did not apply to the INS officers' decision to

11   arrest and detain Caban because the decision did not involve the

12   "weighing of important policy choices to which discretion is

13   essential."   Caban II, 728 F.2d at 70 (describing Caban I).      The

14   court remanded for further proceedings, a bench trial was held,

15   and the district court determined that the complaint should be

16   dismissed because the arrest was privileged under the federal

17   standards applicable to immigration officers, a standard

18   incorporated into New York law through its requirement that a

19   plaintiff suing a private individual for false imprisonment

20   establish that his confinement was "not . . . privileged."     Id.

21   at 70-71 (internal quotation marks omitted).12




          12
            See infra section II.B (discussing the circumstances in
     which an arrest can be privileged under New York law).
                                      27
 1              In Caban II, we affirmed the judgment of the district

 2   court in favor of the government, after trial on remand from

 3   Caban I.   Id. at 75.   We first noted that "INS agents are

 4   'investigative or law enforcement officers' within the meaning of

 5   [28 U.S.C. § 2680(h)]," the provisions of which waives sovereign

 6   immunity for, inter alia, false arrest and imprisonment claims

 7   against federal "investigative or law enforcement officers."     728

 8   F.2d at 72.   We then observed that "the reference in § 1346(b)[,

 9   the central waiver of immunity provision of the FTCA,] to '[t]he

10   law of the place' means the 'whole law' of the state where the

11   incident took place" -- in that case, the State of New York --

12   including any federal law that state law incorporated.   Id.

13   (brackets and some quotation marks omitted).   "New York state

14   courts would look to federal principles in determining the

15   standard by which INS officials' detention of a would-be entrant

16   are to be judged."   Id. at 73.   Because "a person seeking entry

17   into the United States has substantially less right to avoid

18   detention than does a person already lawfully within the United

19   States," id., "far less than [the] probable cause" that is

20   ordinarily required to detain a person will suffice to render the

21   detention privileged under the New York law of false

22   imprisonment, which incorporates federal standards, id.13


          13
             We use the terms "false arrest" and "false imprisonment"
     interchangeably. Under New York law, "the tort of false arrest
     is synonymous with that of false imprisonment." Posr v. Doherty,
                                       28
 1                We nonetheless recognized that the FTCA "speaks in

 2   terms of the liability, under state law, of 'a private person.'"

 3   Id. at 73.    While "[a]n authorized government agent would be

 4   privileged . . . to act to protect national borders, . . . it is

 5   questionable . . . whether New York would extend that privilege

 6   to a private person," id., the issue that was before us under

 7   section 1346(b).

 8                We reasoned, however, that even if a private person

 9   would be held liable under New York State law, the FTCA only

10   provides for liability "in the same manner and to the same extent

11   as a private individual under like circumstances."    28 U.S.C.

12   § 2674.   We then cited Feres for the proposition that "[t]he

13   'like circumstances' language in [section] 2674 means that 'the

14   liability assumed by the Government . . . is that created by 'all

15   the circumstances,' not that which a few of the circumstances

16   might create.'"    Id. at 73-74 (quoting Feres, 340 U.S. at 142).

17                [I]mmigration officers are accorded a special
18                status by law which requires them to detain
19                persons in situations also outlined by law.
20                These circumstances are far different from
21                those in which a person who is either thought
22                to have committed a crime or thought to be an
23                alien is detained by a private individual.
24
25   Id. at 74 (citing Feres, 340 U.S. at 141-42).




     944 F.2d 91, 96 (2d Cir. 1991); see also infra note 17
     (discussing potentially applicable state law).
                                       29
 1             We concluded that the "interplay among" the "like

 2   circumstances" language in section 2647, "the government's

 3   privilege to protect the border, and New York's recognition that

 4   a privileged detention does not result in liability for false

 5   imprisonment" required that "[t]he liability of the

 6   government . . . be assessed in light of the liability New York

 7   would impose upon one having a privilege to detain a would-be

 8   entrant who did not satisfactorily establish his right to enter,"

 9   that is, in "conformance with the federal standards regarding

10   treatment of applicants for entry to the United States."    Id. at

11   74 (quotation marks omitted).    We therefore affirmed the district

12   court's ruling that under New York law, the government employees

13   who detained Caban had a "privilege to detain" him under the

14   circumstances at bar, and therefore their employer, the United

15   States, would not be liable for false imprisonment for the

16   privileged behavior.   Id. at 74-75.

17             Judge Cardamone, concurring in the judgment, questioned

18   the majority's reasoning.    Although he agreed that federal

19   standards applicable to immigration officers should be used to

20   assess liability, he noted the potential for confusion created by

21   the majority's citation to the "like circumstances" language of

22   section 2674 and Feres.     Id. at 76 (Cardamone, J., concurring in

23   the judgment).   Judge Cardamone thought the majority's reliance

24   on Feres was "ill-advised" because "[t]he Feres doctrine plainly


                                       30
 1   does not deal with substantive tort law principles" such as were

 2   at issue in Caban II, "but is concerned solely with . . . [the]

 3   threshold jurisdictional question" of whether a private analogue

 4   exists.   Id.

 5              II. Analysis

 6   A.   The Meaning of Caban II

 7              Before the district court, Liranzo relied on Caban II

 8   for the proposition that the United States waives its sovereign

 9   immunity for FTCA claims arising from immigration detentions.

10   The district court disagreed, deciding that "Caban II does not

11   require an examination of every challenged deportation proceeding

12   to determine whether a plaintiffs claim has a private analogue.

13   Where, as here, the conduct challenged by the plaintiff is

14   exclusively governed by federal law, the FTCA does not waive

15   sovereign immunity."   Mem. & Order at 10.   The district court

16   relied on Caban II's statement that immigration officers are

17   "accorded a special status" "unlike any in which a private

18   individual could be involved," id. at 9 (quoting Caban II, 728

19   F.2d at 74; internal quotation marks omitted), to find the

20   absence of a private analogue and subject matter jurisdiction

21   over Liranzo's claims.

22              The reasoning in Caban II is complex.   Perhaps as a

23   result, courts have diverged in their reading of the case.   Some,

24   such as the district court in this case, view Caban II as


                                     31
 1   authority for the proposition that the United States has not

 2   waived sovereign immunity for immigration detention claims

 3   because there is no relevant private analogue.14   This may arise

 4   from the Caban II majority's citation to Feres, a case

 5   considering only whether a private analogue existed, as authority

 6   for judging federal immigration officers' conduct under a federal

 7   rather than state standard.   But other courts have -- in our view

 8   correctly -- read Caban II as a case about the substantive

 9   standard by which immigration officers' acts are to be judged --

10   not about the presence or absence of a private analogue.15   The

          14
             See also Doe v. United States, 58 F.3d 494, 502 (9th Cir.
     1995) (construing Caban II as holding that "immigration officers
     have materially different duties than do private citizens, and
     therefore no FTCA liability exists, even if a private person
     could be liable for wrongfully detaining plaintiff"); Woodbridge
     Plaza v. Bank of Irvine, 815 F.2d 538, 543 (9th Cir. 1987)
     (same), superseded by statute on other grounds as stated in
     Senior Unsecured Creditors' Comm. of First RepublicBank Corp. v.
     FDIC, 749 F.Supp. 758, 773 (N.D. Tex. 1990); Lippman v. City of
     Miami, 622 F. Supp. 2d 1337, 1341 (S.D. Fla. 2008) (same);
     Schalliol v. Fare, 206 F. Supp. 2d 689, 695 n.24 (E.D. Pa. 2002)
     (same).
          15
            See Rhoden v. United States, 55 F.3d 428, 431 (9th Cir.
     1995) (per curiam); Munyua v. United States, No. 03 Civ. 04538
     (EDL), 2005 WL 43960, at *4, 2005 U.S. Dist. LEXIS 11499, at *12-
     *13 (N.D. Cal. Jan. 10, 2005) ("[T]he Caban case does not support
     the sweeping conclusion that there is no jurisdiction under the
     FTCA here . . . ."); Nguyen v. United States, No. 00 Civ. 528-R,
     2001 WL 637573, at *8-*9, 2001 U.S. Dist. LEXIS 7512, at *26-*28
     (N.D. Tex. June 5, 2001) ("Caban indicates that a lawful
     detention can become unlawful at the point at which the INS's
     decision to continue the detention is no longer reasonable."),
     aff'd on other grounds, 65 F. App'x 509 (5th Cir. 2003); Tovar v.
     United States, No. 98 Civ. 1682, 2000 WL 425170, at *7, 2000 U.S.
     Dist. LEXIS 5044, at *23-*24 (N.D. Tex. Apr. 18, 2000) (Caban II
     applied a federal standard to the merits of Caban's claim),
     aff'd, 244 F.3d 135 (5th Cir. 2000) (unpublished table decision);
                                     32
 1   Caban II court never even considered the FTCA's private analogue

 2   requirement, as that issue was simply not before it on appeal.

 3             If indeed the Caban II court had found the absence of a

 4   private analogue to immigration detentions, its inquiry would

 5   have been at an end because there would have been no waiver of

 6   sovereign immunity, and thus no subject matter jurisdiction over

 7   Caban's FTCA claims.   Instead, the Caban II court considered the

 8   substantive standards under which the immigration officials'

 9   conduct was to be judged -- an inquiry that would only be

10   necessary, at least in a case in Caban II's posture, if a private

11   analogue existed.   See, e.g., Feres, 340 U.S. at 143-44, 146

12   (finding that no private analogue existed, and refraining from



     Garza v. United States, 881 F. Supp. 1103, 1106 (S.D. Tex. 1995)
     (describing Caban II as concluding that the "INS officer's
     detention of [Caban, who was] entering country[, was] privileged
     under New York law"); Gallegos v. Haggerty, 689 F. Supp. 93, 105
     (N.D.N.Y. 1988) (denying the government's motion for summary
     judgment on the merits of plaintiffs' FTCA claim); Saldana v.
     United States, No. L-83-46, 1985 WL 5997, at *4 n.2, 1985 U.S.
     Dist. LEXIS 14091, at *14 n.2 (S.D. Tex. Nov. 7, 1985) ("This
     Court prefers the conceptual approach in the concurring opinion
     of Judge Cardamone in Caban [to the question of what standard to
     apply to the merits of FTCA claims related to immigration
     detentions] rather than that in the majority opinion of Judge
     [Kearse], but the result is the same under either approach.").
            Another judge of the Eastern District of New York has
     explicitly disagreed with the district court's reading of Caban
     II here. Nakamura v. United States, No. 10 Civ. 2797 (FB)(RML),
     2012 WL 1605055, at *3, 2012 U.S. Dist. LEXIS 64630, at *8
     (E.D.N.Y. May 8, 2012) ("Contrary to the outcome of Liranzo and
     defendant's arguments, Caban II does not stand for the sweeping
     proposition that the actions of immigration agents in detaining a
     person never have a private analogue, and that sovereign immunity
     is never waived in such cases.").
                                     33
 1   considering the standard to be applied on the merits); see also

 2   id. at 141 (stating that generally, "[j]urisdiction is necessary

 3   to deny a claim on its merits as matter of law as much as to

 4   adjudge that liability exists").     We therefore do not read Caban

 5   II as did the district court to indicate that there is no private

 6   analogue to immigration detentions.

 7             Moreover, the Caban II Court endorsed the district

 8   court's statement in the case before it that "the United States

 9   [is] not liable to Caban if the INS agents acted in conformance

10   with the federal standards regarding treatment of applicants for

11   entry to the United States."   Caban II, 728 F.2d at 74 (emphasis

12   added; quotation marks omitted).     That language apparently

13   contemplates a consideration of the facts of a particular

14   immigration detention FTCA claim on the merits, i.e., based on

15   the particulars of the "INS agents['] act[ions]."16    Id.




          16
            Although other courts may have also interpreted Caban II
     as concerning the FTCA's private analogue requirement, the
     district court's reliance on Caban II to find a lack of subject
     matter jurisdiction over an FTCA claim based on an immigration
     detention is, as far as we can determine, unique. Cf. Munyua,
     2005 WL 43960, at *4, 2005 U.S. Dist. LEXIS 11499, at *11
     ("Defendant has cited no case, and the Court has found none,
     adopting such a sweeping exemption under the FTCA for conduct by
     immigration officers like that alleged in this case. To the
     contrary, courts have exercised jurisdiction over cases brought
     under the FTCA involving misconduct by immigration officers at
     the border.").
                                     34
 1   B.   Whether a Private Analogue Exists in This Case

 2                The district court concluded that "[i]mmigration and

 3   detention pending deportation are governed exclusively by federal

 4   law and therefore have no private analogue."      Mem. & Order at 10.

 5   Because Liranzo's "intentional tort claims [were] based upon the

 6   detention of plaintiff pending deportation proceedings and the

 7   process the immigration agents used to determine his citizenship

 8   status," the district court found that he had "not established

 9   that a comparable cause of action would exist against a private

10   individual pursuant to New York State law."      Id.   Citing Feres,

11   the government similarly argues that "[r]emoval, and the

12   regulation thereof, are federal functions -- in which private

13   citizens cannot engage -- that are exclusively reserved to [the

14   Department of Homeland Security]."      Def.'s Br. 16 (emphasis in

15   original).

16                To say that the challenged action is one that only the

17   federal government does in fact perform does not necessarily mean

18   that no private analogue exists.       Lighthouses, such as the one

19   that was the subject of Indian Towing, were at least at the time

20   operated only by the government.       It was a function that "private

21   persons d[id] not perform."    350 U.S. at 64 (quotation marks

22   omitted).    But "the presence of identical private activity" was

23   not required to find a private analogue, because the FTCA's

24   statutory phrase "under like circumstances" does not mean "under


                                       35
 1   the same circumstances."    Id. at 64, 67 (emphases added).   Under

 2   Olson, we are "require[d] . . . to look further afield" for a

 3   private analogue when the government in fact is the only entity

 4   that performs the actions complained of.    Olson, 546 U.S. at 46.

 5                Similarly, the fact that immigration detentions are

 6   "uniquely governmental" does not mean they have no private

 7   analogue for present purposes.    "[A]ll Government activity is

 8   inescapably 'uniquely governmental' in that it is performed by

 9   the Government."    Indian Towing, 350 U.S. at 67.   This

10   consideration led the Indian Towing Court to reject a

11   construction of the Act under which "there would be no liability

12   for negligent performance of 'uniquely governmental functions,'"

13   id. at 64, as such an "exception" to the FTCA's waiver of

14   sovereign immunity would threaten to swallow the waiver entirely.

15                The Supreme Court has provided us with examples of how

16   to heed its admonition to "look further afield," Olson, 546 U.S.

17   at 46, for a private analogue.    In Indian Towing and Olson, the

18   proper analogy was that "[p]rivate individuals, who do not

19   operate lighthouses [or inspect mines], nonetheless may create a

20   relationship with third parties that is similar to the

21   relationship between a lighthouse operator and a ship dependent

22   on the lighthouse's beacon[, or a mine inspector and a miner

23   dependent on the inspector faithfully carrying out his duty]."

24   Id. at 47.


                                       36
 1             Here, the proper analogy seems to us be a person who,

 2   entirely in his or her private capacity, places someone under

 3   arrest for an alleged violation of the law -- a so-called

 4   "citizen's arrest."   Such a person may not execute an arrest

 5   absent a legal privilege to do so.   To successfully establish a

 6   claim for false arrest and imprisonment under New York law,17 a

 7   plaintiff must therefore prove that "(1) the defendant intended

 8   to confine [the plaintiff], (2) the plaintiff was conscious of

 9   the confinement, (3) the plaintiff did not consent to the

10   confinement and (4) the confinement was not otherwise

11   privileged."   Caban II, 728 F.2d at 71 (quoting Broughton v.

12   State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310,

13   314, cert. denied, 423 U.S. 929 (1975)) (emphasis added); accord

14   Posr v. Doherty, 944 F.2d 91, 97 (2d Cir. 1991).   And under Caban

15   II, whether the ICE agents' actions here were "otherwise

16   privileged" is determined by consulting federal privileges




          17
            For the purposes of this discussion, we assume New York
     law applies because the initial arrest and detention occurred in
     New York. We express no opinion as to whether Louisiana law
     might apply to some portion of Liranzo's claims based on the time
     he was confined in Louisiana.
                                     37
1   applicable to federal immigration officers.18    Caban II, 728 F.2d

2   at 71.

3              There is some suggestion in the case law that the

4   proper analogy may be to state law enforcement conducted by

5   police officers instead of a citizen's arrest.    In Muniz, the

6   Court endorsed a private analogy to the liability of states and

7   state jailors.   Muniz, 374 U.S. at 159-60.   And at least one

         18
           Following the Supreme Court's statement in Olson that "a
    court [must] look to the state-law liability of private entities,
    not to that of public entities, when assessing the Government's
    liability under the FTCA," 546 U.S. at 46, the Court of Appeals
    for the Ninth Circuit considered whether cases envisioning the
    application of federal privileges in FTCA suits, such as Caban
    II, survive Olson. In Tekle v. United States, 511 F.3d 839 (9th
    Cir. 2007), a case without a majority opinion as to the FTCA
    issue, see id. at 850 n.7, Judge Tashima read Olson to require
    the court to hold the IRS officers at issue to the same standards
    as a private person executing a citizen's arrest. Id. at 850-54.
    In doing so, Judge Tashima called into question a line of Ninth
    Circuit cases relying on Caban II -- including Arnsberg v. United
    States, 757 F.2d 971, 978–79 (9th Cir. 1985) and Rhoden, 55 F.3d
    at 430-31. Tekle, 511 F.3d at 850-54. Judge Fisher, on the
    other hand, refused to read Olson "to support the conclusion that
    law enforcement privileges should not be recognized in FTCA
    suits, and that federal officers are left only with those
    privileges available to private citizens" because "Olson did not
    involve such privileges, and . . . the FTCA's text does not
    clearly foreclose their availability." Id. at 857 (Fisher, J.,
    concurring). Judge Kleinfeld would have found that the FTCA
    claim was not preserved for appeal, but if it was, he would have
    joined Judge Fisher's concurrence. Id. at 861-62 (Kleinfeld, J.,
    concurring).
              This case does not require us to reach the issue of
    what effect, if any, Olson has on the continuing viability of
    Caban II, because the district court dismissed the case for lack
    of a private analogue and did not reach the merits. Thus, the
    district court did not have the occasion to opine on the
    substantive standards applicable to the ICE agents' conduct here,
    and we need not reach the issue now. Caban II remains the law of
    this Circuit.
                                    38
 1   court, the Northern District of California, has found the analogy

 2   to law enforcement persuasive in the context of an FTCA claim

 3   based on an immigration detention.   See Munyua, 2005 WL 43960, at

 4   *4, 2005 U.S. Dist. LEXIS 11499, at *12 ("The fact that the

 5   challenged activities took place at the border does not negate

 6   the analogy to law enforcement . . . .").   But in Olson, the

 7   Court instructed that "a court [must] look to the state-law

 8   liability of private entities, not to that of public entities,

 9   when assessing the Government's liability under the FTCA . . . ."

10   546 U.S. at 46 (emphasis added).

11             Regardless of this ambiguity, in the context of this

12   case, the distinction between analogizing to a citizen's arrest

13   and an officer's arrest is of little moment -- in both cases, the

14   defendant will be liable for false arrest under New York law if

15   the arrest is not privileged.   See, e.g., Downs v. Town of

16   Guilderland, 70 A.D.3d 1228, 1232, 897 N.Y.S.2d 264, 268 (3d

17   Dep't 2010) (police officer's arrest privileged for purposes of

18   false arrest claim if officer possessed probable cause to justify

19   arrest), appeal dismissed, 15 N.Y.3d 742, 933 N.E.2d 203, 906

20   N.Y.S.2d 804 (2010); White v. Albany Med. Ctr. Hosp., 151 A.D.2d

21   859, 860, 542 N.Y.S.2d 834, 835 (3d Dep't 1989) ("In New York, a

22   private citizen who makes an arrest does so at his peril; if the

23   person arrested did not in fact commit the crime for which he is

24   arrested, the person who arrests him is liable [for false arrest]


                                     39
 1   even if he acts in good faith or has probable cause to make an

 2   arrest.").    Therefore, either analogue would suffice for present

 3   purposes.

 4                The fact that New York law applies different

 5   substantive    standards to citizens' and officers' arrests, see

 6   generally 59 N.Y. JUR. 2D FALSE IMPRISONMENT § 37, is also of no

 7   significance for present purposes because, under Caban II --

 8   which provides the law of this Circuit -- immigration detentions

 9   executed by federal immigration officers are judged under federal

10   standards (subject to the considerations discussed supra note

11   18).

12                Our conclusion that there is a private analogue to the

13   government behavior at issue here receives further support from

14   the fact that the FTCA explicitly waives sovereign immunity for

15   "any claim" based on the "acts or omissions of investigative or

16   law enforcement officers" "arising . . . out of . . . false

17   imprisonment [and] false arrest."      28 U.S.C. § 2680(h) (emphasis

18   added).     The plain language of the statute suggests that the

19   United States has indeed waived its sovereign immunity from suit

20   as to Liranzo's "claim," which "aris[es] . . . out of . . . false

21   imprisonment [and] false arrest."      Id.   In light of the

22   considerations discussed above, the government's suggestion that

23   we disregard the "false imprisonment" label Liranzo has affixed

24   to his claim so as to find it not to be encompassed by this


                                       40
 1   explicit statutory language is unpersuasive.    See Def.'s Letter

 2   Br. at 3.

 3               Akutowicz is not to the contrary.   The district court

 4   in this case relied on Akutowicz's reasoning that "the withdrawal

 5   of a person's citizenship constitutes a quasi-adjudicative action

 6   for which no private analog exists," because "no private citizen

 7   is empowered to certify the loss of American nationality," 859

 8   F.2d at 1125-26.   See Mem. & Order at 9-10.    But in Akutowicz,

 9   there was no detention.   The only action complained of was the

10   removal of the plaintiff's citizenship.   Citizenship is a legal

11   status, which only the federal government is capable of altering.

12   A private individual cannot, without subsequent government

13   action, cause injury to another's citizenship.    But a private

14   person is of course capable of falsely arresting another.    See

15   generally Caban II, 728 F.2d at 71 (quoting Broughton, 37 N.Y.2d

16   at 456, 373 N.Y.S.2d at 93, 335 N.E.2d at 314)(setting out the

17   elements of a false arrest claim).

18               As for the government's argument that immigration

19   detentions are quintessentially federal and therefore no private

20   analogue exists per Feres and its progeny, see Def.'s Br. 14, 16,

21   although the "[p]ower to regulate immigration is unquestionably

22   exclusively a federal power," DeCanas v. Bica, 424 U.S. 351, 354

23   (1976), superseded by statute on other grounds as stated in

24   Chamber of Commerce of United States v. Whiting, 131 S. Ct. 1968,


                                      41
 1   1974-75 (2011), it is not clear that immigration detentions are

 2   necessarily and exclusively federal acts.     For instance, under

 3   current federal immigration law, "State and local law enforcement

 4   officials" may be empowered (consistent with state law) to

 5   "arrest and detain" aliens in certain circumstances.    See 8

 6   U.S.C. § 1252c(a); 8 U.S.C. § 1103(a)(10); Arizona v. United

 7   States, 132 S. Ct. 2492, 2506 (2012) (describing limited federal

 8   statutory authorization for state immigration detentions).

 9               The fact that a complained of action occurs in a

10   quintessentially federal context, moreover, does not necessarily

11   mean that no private analogue exists.    While the federal military

12   is undoubtedly quintessentially federal, so is the federal prison

13   system.    The Supreme Court nonetheless, in Muniz, refused to

14   extend Feres to the latter context.     See Muniz, 374 U.S. at 162.

15   In distinguishing Feres, the Muniz Court minimized Feres's

16   reliance on the fact that the military is quintessentially

17   federal.   Id.   It reasoned that "[i]n the last analysis, Feres

18   seems best explained by the peculiar and special relationship of

19   the soldier to his superiors, the effects of the maintenance of

20   such suits on discipline, and the extreme results that might

21   obtain if suits under the Tort Claims Act were allowed for

22   negligent orders given or negligent acts committed in the course




                                      42
 1   of military duty."19   Id. (quotation marks and ellipsis omitted).

 2   These considerations are not present in the non-military context.

 3   The case before us is thus more closely akin to Muniz than Feres.

 4   In sum, it does not follow from the fact that immigration is a

 5   quintessentially federal function that immigration detention is

 6   without a private non-federal officer analogue.    Even for alleged

 7   torts occurring in quintessentially federal contexts, the

 8   question remains whether analogous private liability exists under

 9   state law -- and here, we conclude that it does.

10              For these reasons, we conclude that the district court

11   erred in finding that there was no private analogue to Liranzo's

12   claims.   We express no view, however, as to Liranzo's argument

13   that he is entitled to a trial on the merits on remand.   See

14   Pl.'s Br. 9, 14.   We leave it to the district court to consider

15   whether, under the circumstances of this case, his action is



          19
            One commentator has construed the post-Feres case law as
     having abandoned reliance on the original rationales articulated
     in Feres, and as having replaced them with new rationales for the
     "Feres doctrine" barring FTCA claims by active servicemen and -
     women. See CHEMERINSKY, supra, at 674-75 ("Interestingly, the
     Court's explanation [for the Feres doctrine] has shifted over
     time. Originally, in Feres, the Court emphasized that the
     government could be held liable under the [FTCA] only for
     activities that also are undertaken by private entities . . . .
     But . . . the Supreme Court expressly discarded this limitation
     on recovery under the act [in Indian Towing and Rayonier],
     permitting suits even for activities done solely by the federal
     government. . . . Subsequent to the Feres decision, the Court
     began emphasizing a different rationale for precluding recovery
     for injuries received incident to military service: the need to
     preserve military discipline.").
                                      43
 1   subject to dismissal on the merits on motion to dismiss or for

 2   summary judgment.

 3   C.   Liranzo's Fourth Amendment Claim

 4              Liranzo has not raised any argument against the

 5   district court's dismissal of his separate Fourth Amendment

 6   claim.   See Mem. & Order at 11.    We therefore affirm the district

 7   court's ruling in this respect.     See Universal Church v. Geltzer,

 8   463 F.3d 218, 229 (2d Cir. 2006) ("Generally[,] claims not raised

 9   on appeal are deemed abandoned, at least when it is the appellant

10   who fails to do so.").

11                               CONCLUSION

12              For the foregoing reasons, we affirm as to the district

13   court's dismissal of Liranzo's Fourth Amendment claim.    We vacate

14   the district court's judgment insofar as it found an absence of

15   subject matter jurisdiction over Liranzo's FTCA claims and remand

16   for further proceedings in the district court.    Because the

17   district court did not have the occasion to consider which

18   standard applies on the merits, the district court should

19   consider in the first instance on remand which federal standards

20   govern the determination of whether the government official's

21   actions here were privileged.




                                        44
