The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 YANETT PEREZ PEREZ, Case No.: 25-cv-01821-AJB-SBC
12 Plaintiff,
ORDER GRANTING MOTION TO
13 v. DISMISS
14 UNITED STATES OF AMERICA, et al.,
(Doc. No. 4)
15 Defendants.
16
17 Before the Court is the Motion to Dismiss filed by Defendants United States of
18 America and Dennis Boone (collectively, the “United States”). (Doc. No. 4.) The motion
19 is fully briefed. (Doc. Nos. 4; 7–8; 11.)
20 For the reasons set forth below, the Court GRANTS the United States’ motion to
21 dismiss. (Doc. No. 4.)
22 I. BACKGROUND
23 A. Factual Background
24 1. United States Customs and Border Protection Pursuit Policy
25 In May 2023, the United States Customs and Border Protection (“CBP”) issued CBP
26 Directive No. 4510-026A (the “2023 Pursuit Policy”), which “establishe[d] guidelines to
27 ensure U.S. Customs and Border Protection (CBP) conducts Emergency Driving and
28 Vehicular Pursuits (ED-VPs) in accordance with law and in a manner that minimizes risks
1 to the public, officers/agents, other law enforcement, and vehicle occupants.” (Doc. No. 11
2 at 5 (§ 1)1; see generally id. at 4–31.)
3 The 2023 Pursuit Policy was effective that month and “replace[d] CBP Directive
4 No. 4510-026,” which is referenced herein as the “2021 Pursuit Policy.” (Id. at 5 (§ 3).)
5 The 2023 Pursuit Policy “entrusts agents, officers, and their supervisors with the
6 ability to conduct pursuits based on their analysis of risk factors, encourages them to
7 consider other available means of apprehending suspects, and reaffirms the overall law
8 enforcement need to conduct pursuits.” (Id. at 4.) However, the 2023 Pursuit Policy
9 “restricts pursuits in certain circumstances that are considered especially dangerous and
10 also prohibits specific emergency driving procedures that have proven unsafe or
11 ineffective.” (Id.)
12 The 2023 Pursuit Policy states that CBP officers “may only conduct vehicle stops
13 when there is reasonable suspicion to believe a violation of law has occurred that the
14 Authorized Officer/Agent has the authority to enforce.” (Id. at 13 (§ 8.2).) Before initiating
15 a stop, an officer must broadcast certain information to the CBP Communications Center,
16 if the information is available. (Id. at 14 (§ 8.5).) After the broadcast, the officer can initiate
17 a vehicle stop by “us[ing] their red and blue emergency lights, at a minimum, as a signal
18 to the driver of the Subject Vehicle to pull off the roadway and stop their vehicle.” (Id.
19 (§ 8.3).)
20 If the suspect vehicle fails to yield, the 2023 Pursuit authorizes the officer to “decide
21 not to engage in a Vehicular Pursuit” (id. (§ 8.7)) or to initiate a pursuit if the vehicle
22 “Failed to Yield when an Authorized Officer/Agent attempted to stop the vehicle for a
23 violation of law that they have the authority to enforce AND The Authorized Officer/Agent
24 has determined that a Vehicular Pursuit is Necessary and Objectively Reasonable” (id. at
25 16 (§ 8.24(3), (4))). “A Vehicular Pursuit is considered Necessary when an Authorized
26
27
1 Page citations refer to the pagination generated by the Case Management/Electronic Case Files
28 system.
1 Officer/Agent concludes there is an immediate need to apprehend a subject as part of their
2 enforcement duties based on the totality of the known facts and circumstances.” (Id.
3 (§ 8.25).) “A Vehicular Pursuit is considered Objectively Reasonable when the
4 Governmental Interest . . . in apprehending the subject(s) at that specific time clearly
5 outweighs the Foreseeability of Risk to the public, officers/agents, other law enforcement,
6 and vehicle occupants.” (Id. at 17 (§ 8.26).)
7 “When determining Governmental Interest, the Authorized Officer/Agent shall
8 consider: (1) the severity of the crime at issue, not including the mere act of fleeing as the
9 crime at issue, and (2) whether the subject poses an Imminent Threat to the safety of the
10 officers/agents or others, not including reckless driving in an attempt to evade arrest.” (Id.
11 at 7–8 (§ 6.16).)
12 The “Foreseeability of Risk” is the “degree to which a reasonable officer/agent in a
13 given situation should know that a specific harm might result from the actions being
14 performed and the circumstances present.” (Id. at 7 (§ 6.15).) In assessing the
15 Foreseeability of Risk, an officer must consider the “Pursuit Risk Factors.” (Id.) These
16 may include but are not limited to:
(1) if the speed or the erratic, dangerous, or unlawful driving nature of the
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Subject Vehicle and/or other nearby moving vehicles contributes to
18 unsafe operation, loss of control, or an increased likelihood of injuries
resulting from a collision;
19
(2) if the Subject Vehicle is traveling towards areas with dense traffic or
20 intersections that would increase the chance of collision with
bystanders, other vehicles, or other objects;
21
(3) if the nature of the area is likely to create unnecessary elevated risks to
22 the public at large (residential, commercial, presence of pedestrian
traffic);
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(4) if weather conditions or lighting might impair visibility or increase the
24 risk that vehicles may lose traction/control;
(5) if road conditions (curves, lanes, bridges, unpaved roads, asphalt
25
condition, etc.) increase the risk that vehicles may lose control and/or
26 impact bystanders, other vehicles, or other objects;
(6) if the Subject Vehicle appears to be an Overloaded Vehicle, creating
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unsafe handling characteristics;
28 (7) if there is reason to believe there are Unrestrained Occupants within the
1 Subject Vehicle or occupants within areas of the Subject Vehicle that
were not intended for passenger transport; [and]
2
(8) if the distance between the pursuing Authorized Officer/Agent and the
3 fleeing vehicle is so great that further efforts would be futile or require
the Vehicular Pursuit to continue for an unreasonable time and/or
4
distance.
5
6 (Id. at 9 (§ 6.31).)
7 “Governmental Interest and Foreseeability of Risk must be evaluated at the time the
8 Authorized Officer/Agent chooses to undertake, continue, or Terminate the Vehicular
9 Pursuit.” (Id. at 17 (§ 8.27); see also id. at 7–8 (§ 6.16).)
10 After an officer initiates a pursuit, he “must notify a Pursuit Supervisor as soon as
11 feasible during a Vehicular Pursuit.” (Id. at 18 (§ 8.34); see also id. at 22 (§ 8.55).) The
12 officer “will communicate the basis for the Vehicular Pursuit and an assessment of Pursuit
13 Risk Factors as soon as practicable to a supervisor.” (Id. at 18 (§ 8.34.1).) “If a Pursuit
14 Supervisor has not affirmatively authorized the continuation of the Vehicular Pursuit after
15 being notified and given an opportunity to assess the situation, the engaging Officer/Agent
16 shall Terminate the pursuit.” (Id. (§ 8.38).)
17 While a pursuit is ongoing, the pursuing officer “shall continually assess the Pursuit
18 Risk Factors and other considerations.” (Id. (§ 8.40).) The officer “may Terminate the
19 Pursuit at any time, for any reason, without supervisory approval.” (Id. at 19 (§ 8.43); see
20 also id. at 5 (§ 4.3).) However, the officer “shall Terminate a Vehicular Pursuit when the
21 danger to the public, the officer/agent, other law enforcement, or vehicle occupants
22 outweighs the immediate need to apprehend the subject.” (Id. at 18 (§ 8.41).) Additionally,
23 an officer “will immediately Terminate a Vehicular Pursuit when directed by a supervisor.”
24 (Id. at 19 (§ 8.44).)
25 The 2023 Pursuit Policy states that “[m]andatory compliance with the newly revised
26 training standards and operational procedures will be required following the completion of
27 [its] phased implementation roll-out on May 1, 2023.” (Id. at 4; see also id. at 29 (§ 10).)
28
1 2. The Collision
2 On the morning of October 22, 2024, a CBP agent observed a silver Infiniti sedan
3 (the “Infiniti”) leaving an area where “a group of individuals” were observed “climbing the
4 international border fence.” (Doc. No. 1 ¶¶ 50–51.) The Infiniti collided with a CBP
5 vehicle, sustaining some damage to its passenger side, and fled. (Id. ¶¶ 51–52.)
6 Later that day, around 2:15 p.m., CBP officials observed two individuals, including
7 Jesus Atenco Perez (“Perez”), climbing over the border fence. (Id. ¶ 54.) The two
8 individuals were picked up by the Infiniti, which was being driven by Sergio Josue
9 Palomera (“Palomera”). (Id. ¶¶ 11, 55.)
10 Defendant Dennis Boone (“Agent Boone”) responded to the scene. (Id. ¶ 56.) Agent
11 Boone determined that the Infiniti matched the description of the vehicle that collided with
12 a CBP vehicle earlier that morning. (Id.) Based on this determination, Agent Boone
13 concluded that there was a need to stop the Infiniti. (Id. ¶ 57.)
14 At approximately 2:19 p.m., Agent Boone activated his vehicle’s emergency lights
15 and siren to stop the Infiniti. (Id. ¶¶ 11, 13.) However, Palomera did not stop driving. (Id.
16 ¶ 13) Instead, Palomera “continu[ed driving] west on [State Route 905 (“SR 905”)] at
17 speeds exceeding 80 [miles per hour (“mph”)], driving erratically with abrupt lane changes
18 and weaving through traffic.” (Id. ¶ 13.)
19 During this time, a Caltrans vehicle was parked on the shoulder of SR 905 and
20 partially obstructing a lane of traffic. (Id. ¶ 14.)
21 Between 2:19 p.m. and 2:20 p.m., Agent Boone initiated a pursuit of the Infiniti. (Id.
22 ¶ 12; see also id. ¶¶ 11, 13, 20.) Agent Boone “initiated the pursuit based solely on a
23 suspicion of a mismatched license plate.” (Id. ¶ 30.) Agent Boone was also “[m]otivated
24 by the [Infiniti’s] earlier evasion and collision with a Border Patrol vehicle” and so
25 “exhibited heightened agitation and determination to apprehend the silver Infiniti at all
26 costs.” (Id. ¶ 57.)
27 During the pursuit, Agent Boone drove “at speeds exceeding 90 mph.” (Id. ¶ 32.)
28 The pursuit reached “speeds exceeding 110 mph.” (Id. ¶ 58.) Agent Boone “failed to
1 communicate critical details of the pursuit to his supervisors or the Border Patrol’s dispatch
2 center.” (Id. ¶ 36.)
3 At approximately 2:20 p.m., the Infiniti crashed into the Caltrans vehicle at a speed
4 of 85 mph. (Id. ¶¶ 20, 46.) The Infiniti flipped multiple times and ejected Perez. (Id. ¶ 46.)
5 Agent Boone terminated the pursuit. (Id. ¶ 20.)
6 At approximately 2:25 p.m., emergency medical responders arrived at the scene of
7 the collision, but could not stabilize Perez’s condition. (Id. ¶ 48.) They took Perez to
8 Scripps Mercy Hospital, where he was pronounced dead at 3:15 p.m. (Id.)
9 Agent Boone’s actions allegedly violated the 2021 Pursuit Policy. (Id. ¶¶ 3, 15, 17,
10 24, 31, 33, 36, 58–59.) Agent Boone’s supervisors’ actions also did not comply with the
11 2021 Pursuit Policy. (Id. ¶¶ 18, 25, 61.) At the time of the collision, Agent Boone had
12 allegedly “failed to complete the mandatory biennial refresher training on pursuit policies
13 in 2024.” (Id. ¶ 42.)
14 B. Procedural Background
15 Around November 27, 2024, Plaintiff Yanett Perez Perez (“Perez Perez”), Perez’s
16 mother, filed an administrative claim with the FTCA, which was denied. (Id. ¶ 27.)
17 On July 17, 2025, Perez Perez initiated this Action both individually and as the
18 representative of Perez’s estate. (See generally id.; see also id. ¶¶ 7, 49.) Perez Perez alleges
19 four causes of action.
20 First, Perez Perez claims that Agent Boone violated Perez’s Fourth Amendment civil
21 rights by initiating the high-speed pursuit and causing the fatal collision, and is accordingly
22 liable for the violation under Bivens v. Six Unknown Named Agents of the Federal Bureau
23 of Narcotics (“Bivens”), 403 U.S. 388 (1971). (Doc. No. 1 ¶¶ 63–70.)
24 Second, she contends that Agent Boone also violated Perez’s Fourteenth
25 Amendment civil rights by initiating the high-speed pursuit and is liable for the violation
26 under Bivens, 403 U.S. 388. (Doc. No. 1 ¶¶ 71–78.)
27 Third, Perez Perez asserts that the United States is liable for Perez’s wrongful death
28 pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S. C. §§ 1346(b), 2671. (Doc. No.
1 1 ¶¶ 79–84.) In particular, Perez Perez alleges that Agent Boone negligently (1) initiated
2 the pursuit and (2) continued the pursuit. (Id. ¶ 80.) Additionally, the United States “failed
3 to adequately train or supervise [Agent] Boone on vehicle pursuit policies.” (Id. ¶ 81.)
4 Fourth, Perez Perez avers that the United States is liable for Agent Boone’s negligent
5 acts under the FTCA, 28 U.S.C. §§ 1346(b), 2671. (Doc. No. 1 ¶¶ 85–90.)
6 The United States has moved to dismiss all four causes of action pursuant to Rules
7 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure. (Doc. No. 4.)
8 This Order follows.
9 II. LEGAL STANDARD
10 A. Federal Rule of Civil Procedure 12(b)(1)
11 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) tests whether
12 the court has subject matter jurisdiction. Lack of Article III standing requires dismissal for
13 want of subject matter jurisdiction under Rule 12(b)(1). See Nw. Requirements Utils. v.
14 FERC, 798 F.3d 796, 807 n.9 (9th Cir. 2015).
15 “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for
16 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger
17 asserts that the allegations contained in a complaint are insufficient on their face to invoke
18 federal jurisdiction.” Id. The court “resolves a facial attack as it would a motion to dismiss
19 under Rule 12(b)(6): Accepting the plaintiff’s allegations as true and drawing all
20 reasonable inferences in the plaintiff’s favor, the court determines whether the allegations
21 are sufficient as a legal matter to invoke the court’s jurisdiction.” Leite v. Crane Co., 749
22 F.3d 1117, 1121 (9th Cir. 2014) (citation omitted).
23 “[I]n a factual attack,” on the other hand, “the challenger disputes the truth of the
24 allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air, 373
25 F.3d at 1039. In resolving such an attack, unlike a motion to dismiss under Rule 12(b)(6),
26 a court “may review evidence beyond the complaint without converting the motion to
27 dismiss into a motion for summary judgment.” Id. (citation omitted). Moreover, the court
28 “need not presume the truthfulness of the plaintiff’s allegations.” Id. Once the defendant
1 has moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the
2 plaintiff bears the burden of establishing the court’s jurisdiction. See Chandler v. State
3 Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010).
4 B. Federal Rule of Civil Procedure 12(b)(6)
5 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s
6 complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “[A] court may dismiss
7 a complaint as a matter of law for (1) lack of cognizable legal theory or (2) insufficient
8 facts under a cognizable legal claim.” SmileCare Dental Grp. v. Delta Dental Plan of Cal.,
9 Inc., 88 F.3d 780, 783 (9th Cir. 1996) (citation and internal quotation marks omitted).
10 However, a complaint will survive a motion to dismiss if it contains “enough facts to state
11 a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
12 (2007). In making this determination, a court reviews the contents of the complaint,
13 accepting all factual allegations as true and drawing all reasonable inferences in favor of
14 the nonmoving party. See Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S.,
15 497 F.3d 972, 975 (9th Cir. 2007).
16 Notwithstanding this deference, the reviewing court need not accept legal
17 conclusions as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for
18 a court to assume “the [plaintiff] can prove facts that [he or she] has not alleged.” Assoc.
19 Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526
20 (1983). However, “[w]hen there are well-pleaded factual allegations, a court should assume
21 their veracity and then determine whether they plausibly give rise to an entitlement to
22 relief.” Iqbal, 556 U.S. at 679.
23 III. DISCUSSION
24 A. Perez Perez Has Failed to Properly Oppose the United States’ Motion to
Dismiss.
25
26 Preliminarily, the Court must strike Perez Perez’s opposition to the United States
27 Motion to Dismiss (Doc. No. 7.)
28
1 Pursuant to Federal Rule of Civil Procedure 11(a), “[e]very . . . paper must be signed
2 by at least one attorney of record in the attorney’s name . . . . The court must strike an
3 unsigned paper unless the omission is promptly corrected after being called to the
4 attorney’s or party’s attention.”
5 On October 7, 2025, counsel for Perez Perez filed an unsigned opposition to the
6 motion to dismiss. (Doc. No. 7.)
7 On that same day, the Clerk of Court notified counsel for Perez Perez that the filed
8 document was not signed and instructed counsel to withdraw the unsigned document and
9 to refile it with a signature. (Id.)
10 Counsel for Perez Perez has not withdrawn or refiled the opposition.
11 Accordingly, the Court “must strike [the] unsigned paper” because the omission has
12 not been “promptly corrected after being called to the attorney’s . . . attention.” Fed. R. Civ.
13 P. 11(a). The Court thus STRIKES the unsigned opposition. Id. Because the United States’
14 reply addresses arguments contained therein, the Court will retain access to the unsigned
15 opposition in the Case Management/Electronic Case Files system for ease of reference.
16 Having stricken the unsigned opposition, the Court notes that in this District, a
17 failure to properly oppose a motion “may constitute a consent to the granting of a motion
18 or other request for ruling by the Court.” CivLR 7.1.f.3.c. Nevertheless, the Court declines
19 to treat the unsigned response as a consent to the granting of the motion to dismiss. See
20 CivLR 1.1.d. The Court thus proceeds to consider the motion’s merits.
21 B. Counts One and Two Fail to State a Claim on Which Relief Can be
Granted.
22
23 In Counts One and Two, Perez Perez alleges Bivens claims for alleged violations of
24 the Fourth and Fourteenth Amendments. (See Doc. No. 1 ¶¶ 63–78.)
25 Some plaintiffs may seek money damages for alleged constitutional violations under
26 an implied cause-of action theory recognized in Bivens. See Ziglar v. Abbasi, 582 U.S. 120,
27 130–32 (2017). However, Bivens relief is available only in extremely limited
28 circumstances. In Bivens itself, the Supreme Court “recognized an implied cause of action
1 against [Federal Bureau of Narcotics] officials for Fourth Amendment violations.”
2 Marquez v. Rodriguez, 81 F.4th 1027, 1029 (9th Cir. 2023); see also Bivens, 403 U.S. at
3 397. In the subsequent decades, the Supreme Court has extended Bivens relief in only two
4 other circumstances. Marquez, 81 F.4th at 1029. First, “[i]n Davis v. Passman, 442 U.S.
5 228 (1979), the Court permitted an administrative assistant to seek a damages remedy
6 against her former employer, a congressman, for alleged sex discrimination in violation of
7 the Fifth Amendment.” Marquez, 81 F.4th at 1029. Second, “in Carlson v. Green, 446 U.S.
8 14 (1980), the Court recognized a Bivens remedy in an action brought by a federal
9 prisoner’s estate contending that prison officials infringed the Eighth Amendment’s Cruel
10 and Unusual Punishment Clause by failing to provide adequate medical treatment.”
11 Marquez, 81 F.4th at 1029.
12 More recently, the Supreme Court “has made clear that expanding the Bivens remedy
13 is now a ‘disfavored’ judicial activity.” Abbasi, 582 U.S. at 135 (quoting Iqbal, 556 U.S.
14 at 675). Accordingly, courts now apply a two-step test to determine whether a Bivens
15 remedy is available. “First, we ask whether the case presents ‘a new Bivens context’—i.e.,
16 is it ‘meaningful[ly]’ different from the three cases in which the Court has implied a
17 damages action.” Egbert v. Boule, 596 U.S. 482, 492 (2022) (quoting Abbasi, 582 U.S. at
18 139–40). Meaningful differences can include
19 the rank of the officers involved; the constitutional right at issue; the
generality or specificity of the official action; the extent of judicial guidance
20
as to how an officer should respond to the problem or emergency to be
21 confronted; the statutory or other legal mandate under which the officer was
operating; the risk of disruptive intrusion by the Judiciary into the functioning
22
of other branches; or the presence of potential special factors that previous
23 Bivens cases did not consider.
24
25 Abbasi, 582 U.S. at 140. It may also include a “new category of defendants.” Corr. Servs.
26 Corp. v. Malesko, 534 U.S. 61, 68 (2001).
27 If there is a new context or a meaningful difference, “a Bivens remedy is unavailable
28 if there are ‘special factors’ indicating that the Judiciary is at least arguably less equipped
1 than Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.’”
2 Egbert, 596 U.S. at 492 (quoting Abbasi, 582 U.S. at 136).
3 No Bivens remedy is available for Perez Perez’s claims.
4 First, Counts One and Two arise in a new context. For both Counts, Agent Boone
5 and the Doe Defendants belong to a “new category of defendants.” Malesko, 534 U.S. at
6 68. As CBP officials, they are not Federal Bureau of Narcotics officials, cf. Bivens, 403
7 U.S. at 389; congresspersons, cf. Davis, 442 U.S. at 230; or prison officials, cf. Carlson,
8 446 U.S. at 16. Additionally, the fact that a CBP policy purportedly governed Agent
9 Boone’s and his supervisor’s conduct presents a distinction between this case and past
10 precedent that “satisf[ies] the [Supreme] Court’s permissive test for what makes a context
11 ‘new.’” Quintero Perez v. United States, 8 F.4th 1095, 1104–05 (9th Cir. 2021).
12 Second, special factors counsel against extending Perez Perez any Bivens relief. In
13 determining whether special factors exist, “the inquiry must concentrate on whether the
14 Judiciary is well suited, absent congressional action or instruction, to consider and weigh
15 the costs and benefits of allowing a damages action to proceed.” Abbasi, 582 U.S. at 136.
16 [T]he decision to recognize a damages remedy requires an assessment of its
impact on governmental operations systemwide. Those matters include the
17
burdens on Government employees who are sued personally, as well as the
18 projected costs and consequences to the Government itself when the tort and
monetary liability mechanisms of the legal system are used to bring about the
19
proper formulation and implementation of public policies. These and other
20 considerations may make it less probable that Congress would want the
Judiciary to entertain a damages suit in a given case.
21
22 Id. at 136–37. Additionally, “if there is an alternative remedial structure present in a certain
23 case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action.”
24 Id. at 137. Such structures can include “administrative, statutory, equitable, and state law
25 remedies.” Vega v. United States, 881 F.3d 1146, 1154 (9th Cir. 2018).
26 Here, an alternative remedial structure is available for both Counts. As Egbert
27 explained, Customs and Border Patrol regulations require the agency to “investigate
28 ‘[a]lleged violations of the standards for enforcement activities’ and accept grievances
1 from ‘[a]ny persons wishing to lodge a complaint.’” 596 U.S. at 497 (quoting 8 C.F.R.
2 §§ 287.10(a)–(b)). Indeed, Perez Perez filed such a claim with Customs and Border Patrol
3 around November 27, 2024. (Doc. No. 1 ¶ 27.) Such a remedy makes Bivens relief
4 unavailable. Egbert, 596 U.S. at 497–98 (citing Malesko, 534 U.S. at 74).
5 Because a Bivens remedy is not available for either Count One or Two, Counts One
6 and Two are DISMISSED WITH PREJUDICE.
7 C. The Court Lacks Subject Matter Jurisdiction Over Counts Three and
Four.
8
9 1. Sovereign immunity and the FTCA.
10 “The United States, as sovereign, is immune from suit save as it consents to be sued.”
11 United States v. Sherwood, 312 U.S. 584, 586 (1941). “A waiver of the Federal
12 Government’s sovereign immunity must be unequivocally expressed in statutory text and
13 will not be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citations omitted).
14 “Moreover, a waiver of the Government’s sovereign immunity will be strictly construed,
15 in terms of its scope, in favor of the sovereign.” Id. (citations omitted).
16 “One important immunity waiver that allows suits against the federal government is
17 the FTCA.” Lam v. United States, 979 F.3d 665, 671–72 (9th Cir. 2020). “The FTCA
18 provides a limited waiver of the sovereign immunity of the United States for torts
19 committed by federal employees acting within the scope of their employment.” Nurse v.
20 United States, 226 F.3d 996, 1000 (9th Cir. 2000) (citation omitted). “Under the FTCA,
21 the United States may be held civilly liable for the torts of its employees ‘in the same
22 manner and to the same extent as a private individual under like circumstances.’” Id.
23 (quoting 28 U.S.C. § 2674).
24 “To succeed in district court under the FTCA, a plaintiff must have suffered an
25 injury, a federal employee must have caused that injury, and state law must offer a legal
26 theory that makes that employee’s negligence actionable.” Lam, 979 F.3d at 672.
27 “However, the FTCA’s waiver of immunity is limited by a number of statutory
28 exceptions.” Nurse, 226 F.3d at 1000 (citing 28 U.S.C. § 2680). If the plaintiff’s cause of
1 action falls within one of the exceptions, the district court lacks subject matter jurisdiction.
2 Id.
3 The burden of establishing a waiver falls upon the party asserting jurisdiction.
4 Prescott v. United States, 973 F.2d 696, 701 (9th Cir. 1992). Once a plaintiff has identified
5 a waiver, “the United States bears the burden of proving the applicability of one of the
6 exceptions to the FTCA’s general waiver of immunity.” Id. at 702.
7 Pursuant to 28 U.S.C. § 2680(a), the FTCA’s waiver of sovereign immunity “shall
8 not apply” to “[a]ny claim . . . based upon the exercise or performance or the failure to
9 exercise or perform a discretionary function or duty on the part of a federal agency or an
10 employee of the Government, whether or not the discretion involved be abused.”
11 Courts apply a two-part test to determine if this “Discretionary Function Exception”
12 is applicable. First, a court must consider “whether the alleged wrongful conduct violated
13 a specific and mandatory regulation or statute.” Bibeau v. Pac. Nw. Rsch. Found., Inc., 339
14 F.3d 942, 945 (9th Cir. 2003) (citing United States v. Gaubert, 499 U.S. 315, 324–25
15 (1991)). “If so, the conduct is outside the realm of discretion.” Id. (citation omitted).
16 Second, “[i]f there is no mandatory regulation or statute involved, we then ask whether the
17 conduct was susceptible to being based upon social, economic, or political policy.” Id.
18 (citations omitted). “[T]he discretionary function exception insulates the Government from
19 liability if the action challenged in the case involves the permissible exercise of policy
20 judgment.” Berkovitz v. United States, 486 U.S. 531, 537 (1988).
21 2. The 2021 Pursuit Policy does not apply.
22 Perez Perez alleges the FTCA waives sovereign immunity and renders the United
23 States liable for Counts Three and Four. (See Doc. No. 1 ¶¶ 79, 84, 90.) In response, the
24 United States has invoked the FTCA’s Discretionary Function Exception to assert that this
25 Court lacks jurisdiction because the 2023 Pursuit Policy vested Agent Boone and his
26 supervisors with discretion over how to pursue suspects and how to train CBP agents. (See,
27 e.g., Doc. No. 4-1 at 12–15 (citing 28 U.S.C. § 2680(a).)
28
1 There appears to be some confusion over what CBP policy may have governed
2 Agent Boone’s decisions to initiate and to maintain a high-speed pursuit, and his
3 supervisor’s oversight of a high-speed pursuit. On the one hand, Perez Perez alleges that
4 Agent Boone’s actions violated “CBP Directive 4510-026,” which is the 2021 Directive.
5 (See, e.g., Doc. No. 1 ¶ 15.) On the other, the United States focuses on the 2023 Pursuit
6 Policy and what it authorizes. (See Doc. No. 4-1 at 7–8, 13–15.)
7 Perez Perez’s references to the 2021 Directive appear to be intentional. The
8 Complaint repeatedly cites “CBP Directive 4510-026” and does not reference “CBP
9 Directive 4510-026A”—the 2023 Pursuit Policy—at any point. (See generally Doc. No. 1.)
10 Furthermore, Perez Perez’s contentions regarding the purported contents of the CBP’s
11 governing directive do not align with the 2023 Pursuit Policy’s text. For example, Perez
12 Perez contends that “CBP Directive 4510-026, Section 5.2” “mandates that pursuits be
13 initiated only when the need for immediate apprehension outweighs the risks to public
14 safety.” (Id. ¶ 31.) However, Section 5.2 of the 2023 Pursuit Policy states in full “18 U.S.C.
15 § 758, High Speed Flight from an Immigration Checkpoint.” (Doc. No. 11 at 6 (§ 5.2).)
16 Perez Perez also claims that “CBP Directive 4510-026, Section 6.1” “requires agents to
17 maintain a safe distance to avoid pressuring the suspect into increasingly dangerous
18 maneuvers.” (Doc. No. 1 ¶ 33.) Section 6.1 of the 2023 Pursuit Policy instead defines
19 “apprehension efforts” as “[a]ny attempted seizure of a Subject Vehicle by Authorized
20 Officers/Agents accomplished through the use of Activated Emergency Equipment or other
21 show of authority.” (Doc. No. 11 at 6 (§ 6.1).) The section does not require any pursuit
22 procedures, much less a pursuit distance. (See id.) Thus, the Court concludes Perez Perez
23 intended to rely on the 2021 Pursuit Policy.
24 That reliance is misplaced. When the CBP issued the 2023 Pursuit Policy, it
25 “replace[d]” the 2021 Pursuit Policy. (Id. at 5 (§ 3).) The 2023 Pursuit Policy was effective
26 as of “May 2023.” (Id.) The underlying pursuit and collision in this matter occurred on
27 October 22, 2024. (See Doc. No. 1 ¶ 2.) Accordingly, the pursuit and collision took place
28 after the 2023 Pursuit Policy became effective and replaced the 2021 Pursuit Policy.
1 (Compare Doc. No. 11 at 5, with Doc. No. 1 ¶ 2.) In turn, the 2021 Pursuit Policy did not
2 apply to Agent Boone’s or his supervisors’ actions at the time of the underlying events.
3 Furthermore, the United States’ arguments based on the 2023 Pursuit Policy take
4 some precedence because it is the United States that “bears the burden of proving the
5 applicability of one of the exceptions to the FTCA’s general waiver of immunity.” Prescott,
6 973 F.2d at 702.
7 The Court accordingly turns to what, if anything, the 2023 Pursuit Policy required
8 of Agent Boone and his supervisors.
9 3. The 2023 Pursuit Policy granted Agent Boone discretion to initiate
and terminate the pursuit.
10
11 Perez Perez contends that CBP policy prohibited Agent Boone from initiating the
12 pursuit and, subsequently, required Agent Boone to terminate the pursuit. (Doc. No. 1
13 ¶¶ 15, 17.) In particular, Perez Perez points to the 2021 Pursuit Policy to assert that Agent
14 Boone was prohibited from initiating the pursuit. (Id. ¶ 15.) Perez Perez additionally claims
15 that the risks to public safety from the pursuit outweighing the need to stop the Infiniti
16 meant that Agent Boone was required to terminate the pursuit. (Id. ¶ 17.)
17 Perez Perez is incorrect.
18 In analyzing the Discretionary Function Exception defense, the Court must “look at
19 all the relevant policies in their totality and how they fit together to determine if they are
20 discretionary or mandatory.” Lam, 979 F.3d at 676. Notably, “the presence of a few,
21 isolated provisions cast in mandatory language does not transform an otherwise suggestive
22 set of guidelines into binding agency regulations.” Sabow v. United States, 93 F.3d 1445,
23 1453 (9th Cir. 1996). “The use of a few mandatory words like ‘shall’ does not create a
24 mandatory policy if the policy otherwise allows for discretion.” Lam, 979 F.3d at 677.
25 Against this backdrop, the applicable provisions of the 2023 Pursuit Policy provide
26 a “suggestive set of guidelines” and not “binding agency regulations.” Sabow, 93 F.3d at
27 1453. On initiating a pursuit, the Commissioner’s Message that accompanies the 2023
28 Pursuit Policy explains that the policy’s purpose is to provide “a clear framework for
1 weighing the risks associated with vehicular pursuits (e.g., the dangers posed to the public),
2 against the law enforcement benefit or need.” (Doc. No. 11 at 4 (emphasis added).) In doing
3 so, the 2023 Pursuit Policy “entrusts agents, officers, and their supervisors with the ability
4 to conduct pursuits based on their analysis of risk factors.” (Id. (emphasis added).) The
5 2023 Pursuit Policy goes on to state that “Authorized Officers/Agents are responsible for
6 their decisions and actions related to Vehicular Pursuits at all times and in under [sic] all
7 circumstances when engaged in a Pursuit.” (Id. at 16 (§ 8.23).) While engaged in a pursuit,
8 the agent “shall continuously assess Pursuit Risk Factors.” (Id. at 17 (§§ 8.28, 8.31); see
9 also id. (§ 8.29) (identifying eight “Pursuit Risk Factors” that the agent “shall consider . . .
10 to determine Foreseeability of Risk”).) As for terminating a pursuit, the 2023 Pursuit Policy
11 states that “Authorized Officers/Agents engaged in a Vehicular Pursuit shall continually
12 assess the Pursuit Risk Factors and other considerations.” (Doc. No. 11 at 18 (§ 8.40).)
13 Further, agents “may Terminate the Pursuit at any time, for any reason, without supervisory
14 approval.” (Id. at 19 (§ 8.43).)
15 The foregoing language clearly calls upon CBP agents to decide whether to initiate
16 or terminate a pursuit. In doing so, the 2023 Pursuit Policy vests CBP agents with
17 substantial discretion to decide whether to initiate or terminate a pursuit. See Lam, 979 F.3d
18 at 678–79.
19 This conclusion is consistent with other courts’ recognition that prior iterations of
20 CBP’s pursuit policies granted CBP agents discretion in determining whether to initiate a
21 pursuit. For instance, in Herrera v. United States, No. 09-cv-00756-JM-WMc, 2010 WL
22 4236974, *3 (S.D. Cal. Oct. 21, 2010), the court explained that “[t]he often complex
23 circumstances and variables surrounding a pursuit necessarily require the agent or agents
24 to continually analyze rapidly changing circumstances . . . when deciding to commence,
25 continue, or terminate a pursuit.” The court noted that although “an agent is required to
26 consider eleven Safety Factors . . . in determining whether to commence, continue, or
27 terminate a pursuit,” there were no “objective hard and fast rules to determine when to
28 conduct or continue a pursuit of a fleeing vehicle.” Id. Accordingly, the court “conclude[d]
1 that the Pursuit Policy vests substantial discretion in Border Patrol Agents and that the
2 Pursuit Policy provides no specific directives that mandate specific action when pursuing
3 fleeing vehicles.” Id. Similarly, Gallegos Reyes v. United States, No. 5:19-cv-00902-OLG,
4 2020 WL 248688, *2–3 (W.D. Tex. Jan. 15, 2020), recognized that the then-applicable
5 policy “explicitly contemplate[d] an element of choice as to how [CBP agents] should
6 engage in emergency driving and pursuit.” Most recently, a district court held that “agents
7 possess discretion in deciding whether to pursue” under the 2021 Pursuit Policy. Carrillo
8 v. United States, No. 2:25-cv-00219-KWR-DLM, 2025 WL 3187389, *4 (D.N.M. Nov.
9 14, 2025), appeal docketed, No. 25-2158 (10th Cir. Dec. 19, 2025).
10 Thus, the Court must conclude that Agent Boone had discretion to initiate and
11 terminate the pursuit unless Perez Perez can identify specific provisions of the 2023 Pursuit
12 Policy that prohibited the initiation of the pursuit or required its termination. See Berkovitz,
13 486 U.S. at 536. Perez Perez does not.
14 On the initiation of the pursuit, Perez Perez contends that Agent Boone was
15 prohibited from initiating the pursuit because he “failed to adequately consider” certain
16 pursuit risk factors. (Doc. No. 1 ¶ 16.)2 The problem with this contention is that it
17 necessarily concedes that Agent Boone had discretion to initiate the pursuit because he had
18 to weigh whether the risks of a pursuit outweighed the need to stop the Infiniti. See Lam,
19 979 F.3d at 679–80 (holding an official had discretion where it was “up to the Senior Park
20 Ranger to use his judgment in carrying out the [policy] requirements while weighing policy
21 choices, such as costs and available volunteers.”). Whether Agent Boone’s weighing and
22 considerations were adequate is irrelevant. “[A]t step one of the discretionary-function-
23
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27
2 Perez Perez does not allege that any of the circumstances in which the 2023 Pursuit Policy prohibits
28 a pursuit applies. (Compare Doc. No. 1, with Doc. No. 11 at 20 (§ 8.47).)
1 exception analysis, all that matters is that there was, in fact, discretion.” Chadd v. United
2 States, 794 F.3d 1104, 1111 (9th Cir. 2015) (citing Gaubert, 499 U.S. at 322).3
3 Turning to whether Agent Boone should have terminated the pursuit, Perez Perez
4 claims that Agent Boone was required to terminate the pursuit because the “risks to public
5 safety . . . outweighed the need for immediate capture.” (Doc. No. 1 ¶ 17.) Although it is
6 true that the 2023 Pursuit Policy states that “Authorized Officers/Agents shall Terminate a
7 Vehicular Pursuit when the danger to the public, the officer/agent, other law enforcement,
8 or vehicle occupants outweighs the immediate need to apprehend the subject,” the
9 surrounding context makes clear that this language does not create a mandatory
10 requirement. (Doc. No. 11 at 18 (§ 8.41).) In requiring a pursuing agent to assess whether
11 a pursuit is warranted by weighing the risks of a pursuit against the need to apprehend a
12 suspect, “the very nature of [this 2023 Pursuit Policy] requirement[] allows the exercise of
13 . . . judgment and discretion.” Lam, 979 F.3d at 679. In turn, this use of “mandatory-
14 sounding language such as ‘shall’ does not overcome the discretionary character of the”
15 2023 Pursuit Policy. Gonzales v. United States, 814 F.3d 1022, 1030 (9th Cir. 2016).
16 Accordingly, Agent Boone had discretion to initiate and to terminate his pursuit.
17 4. Agent Boone’s decisions whether to initiate and terminate the
pursuit are susceptible to policy analysis.
18
19 The Court turns to the second part of its inquiry, “whether the conduct was
20 susceptible to being based upon social, economic, or political policy.” Bibeau, 339 F.3d at
21 945. “When established governmental policy, as expressed or implied by statute,
22 regulation, or agency guidelines, allows a Government agent to exercise discretion, it must
23 be presumed that the agent’s acts are grounded in policy when exercising that discretion.”
24 Gaubert, 499 U.S. at 324.
25
26
27 3 Additionally, insofar as the 2021 Pursuit Policy did not apply to Agent Boone’s pursuit of the
Infiniti, Perez Perez’s claims that Agent Boone and his supervisors failed to comply with other alleged
28 aspects of the superseded policy lack merit. (See, e.g., Doc. No. 1 ¶¶ 17, 18, 31, 33, 36, 58, 61.)
1 Agent Boone’s conduct was susceptible to being based on social, economic, or
2 political policy. As Herrera aptly explained,
3 [d]ecisions concerning whether to initiate, continue, or terminate a pursuit
implicate competing policies. On the one hand, “law enforcement agents have
4
a mandatory duty to enforce the law,” Horta v. Sullivan, 4 F.3d 2, 21 (1st Cir.
5 1993), which must be balanced against the safety concerns of the general
public as well as minimizing economic losses and political concerns.
6
7 No. 09-cv-00756-JM-WMc, 2010 WL 4236974, at *4.
8 Under these circumstances, the Discretionary Function Exception applies to Agent
9 Boone’s decision to initiate his pursuit of the Infiniti and his corresponding decisions to
10 continue and not terminate the pursuit. In turn, the exception bars any claims based on these
11 decisions. To the extent that Counts Three and Four are based on these choices, Counts
12 Three and Four are DISMISSED WITH PREJUDICE.
13 5. Agent Boone and his supervisors complied with the 2023 Pursuit
Policy’s training requirement.
14
15 The sole remaining basis for Counts Three and Four is the United States’ alleged
16 failure to adequately train or supervise Agent Boone because he “failed to complete the
17 mandatory biennial refresher training on pursuit policies in 2024.” (Doc. No. 1 ¶¶ 42, 81,
18 88.)
19 The United States raises a factual challenge against these claims. (Doc. No. 4-1 at
20 15.) The United States points out that Agent Boone completed his refresher training on
21 September 10, 2024, and presents Agent Boone’s and his supervisor’s training records to
22 support this defense. (Id.; see also Doc. No. 4-5 at 17 (supervisor proof of completion on
23 September 16, 2024), 36 (Agent Boone’s proof of completion on September 10, 2024), 49
24 (Agent Boone’s Certificate of Training).)
25 Because the United States raises a factual challenge, the Court need not presume the
26 truthfulness of Perez Perez’s allegations and may instead review evidence beyond the
27 complaint. Safe Air, 373 F.3d at 1039. Once a movant presents a factual challenge, “the
28 party opposing the motion must furnish affidavits or other evidence necessary to satisfy its
1 || burden of establishing subject matter jurisdiction.” /d. (quoting Savage v. Glendale Union
2 || High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003)).
3 Here, Perez Perez’s unsigned opposition concedes that Agent Boone was trained,
4 ||contrary to Perez Perez’s initial allegation. (Compare Doc. No. 7 at 6 (“Boone’s training
5 ||records confirm he knew these rules”), with Doc. No. 1 § 42.) Thus, it appears Perez Perez
6 ||has abandoned this basis for Counts Three and Four. Counts Three and Four are
7 || consequently DISMISSED WITH PREJUDICE in their entirety.
8 ||IV. CONCLUSION
9 For the foregoing reasons, the United States’ motion to dismiss is GRANTED.
10 Because amendment would be futile, the Action is DISMISSED WITH PREJUDICE.
11 || The Clerk of Court is DIRECTED to close the case.
12 IT IS SO ORDERED.
13 ||Dated: June 4, 2026
15 United States District Judge
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