Record and brief — County of San Diego v. Nelson

UO

8 l 7 i 3 3 ice - Supreme Court, U.S. |

FILFD

JAN 18 1982

ALEXANDE® L.

mee

ct re

No.

IN THE

SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1981

County oF SAN Di&G0, a political subdivision of the State of

California,

Petitioner,

Ataw & Melson, V.

eee te — ta ttt,

Commissioner, Immigration and Naturali-

zation Service; Mario T. Noto, Deputy Commissioner; E>wARD

O'Connor, Western Regional Commissioner; JAMES J. O’KEFFE,

San Diego District Director; DoNALD CAMERON, Chief Border

Patrol Agent, Sector No. 11; GRIFFIN BELL, Attorney General;

UNITED STATES OF AMERICA; IMMIGRATION AND NATURALIZA-

TION SERVICE OF THE UNITED STATES,

Respondents.

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

DONALD L. CLark, County Counsel

LLoyp M. HARMON, Jr., Chief Deputy

JANET B. Houts, Deputy

355 County Administration Center

San Diego, California 92101

Telephone: (714) 236-3651

Attorneys for Petitioner

ze ARTS & CRAFTS PRESS, SAN DIEGO, CALIF.

STEVAS,

—_—j—

QUESTION PRESENTED

Is there authority under the Federal Tort Claims Act to sup-

port a claim for damages for failure of the United States to

properly perform its duties in preventing the entry of illegal

aliens into the United States?

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......... je i

Ee Ree ee EE i

ee ee ar I Gcettiirccntrenermnnminne di

8, ee 2

JURISDICTION 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS 2

STATEMENT OF THE CASE ................. 3

REASONS FOR GRANTING THE WRIT

THE CLAIM FOR DAMAGES IS NOT

BARRED BY SOVEREIGN IMMUNITY

AND IS ALLOWABLE UNDER THE FED-

ERAL TORT CLAIMS ACT ........... 5

CONCLUSION 9

ORDER AND OPINION OF THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF CALIFORNIA ...... Appendix A

MEMORANDUM OF OPINION OF THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT |... Appendix B

TABLE OF AUTHORITIES

Cases

Page

Indian Towing Co. v. United States (1955)

350 U.S. 61, 100 L.Ed. 48 . Leena

Oregon v. United States (9th Cir. 1962) 308 F.2d 568,

cert. denied, (1963) 372 US. 941 ae

People of the State of California v. United States

(9th Cir. 1962) 307 F.2d 941, cert. denied, sdhaein

372 US. 941 .............. 4, 6, 8, 9

Pirie v. Chicago Title & Trust Co. (1901)

182 U.S. 438, 45 L.Ed. 1171 oe Ese

Rayonier, Inc. v. United States (1957)

352 U.S. 315, 1 L.Ed.2d 354 = euleadiosnetdiaiiomeall

United States v. Sherwood (1941)

312 U.S. 584, 85 L.Ed. 1058 Sadeanaalianadsa Saimiel 5

United States v. Testan (1976)

424 US. 392, 47 L.Ed.2d 114 .......... Eaceesiensdeeaasaniecsasanal

Statutes

United States Code

S|, ce

28 U.S.C. § 1346(b) . duane

IN THE

SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1981

County OF SAN DiEcGo, a political subdivision of the State of

California,

Petitioner,

v.

LEONEL J. CasTILLO, Commissioner, Immigration and Naturali-

zation Service; Mario T. Noto, Deputy Commissioner; E>wARD

O'Connor, Western Regional Commissioner; JAMES J. O’KEFFE,

San Diego District Director; DoNALD CAMERON, Chief Border

Patrol Agent, Sector No. 11; GrirFIN BELL, Attorney General;

UNITED STATES OF AMERICA; IMMIGRATION AND NATURALIZA-

TION SERVICE OF THE UNITED STATES,

Respondents.

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

The Petitioner, County of San Diego, a political subdivision

of the State of California, respectfully prays that a writ of cer-

tiorari issue to review the judgment and opinion of the United

States Court of Appeals for the Ninth Circuit entered in this

proceeding on October 16, 1981.

—

OPINION BELOW

The opinion of the United States District Court for the South-

ern District of California, attached hereto as Appendix A to this

Petition, was affirmed by the United States Court of Appeals for

the Ninth Circuit, attached hereto as Appendix B.

JURISDICTION

The order of the United States District Court for the Southern

District of Catifornia granting Respondent's Motion to Dismiss

the Complaint was entered on February 6, 1980. The judgment

of the United States Court of Appeals for the Ninth Circuit

affirming said order was entered on October 16, 1981. This pe-

tition for certiorari was filed within 90 days of that date. This

Court's jurisdiction is invoked under 28 U.S. Code Section

1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS

The pertinent statutory provision involved is 28 U.S. Code

Section 1346(b), which provides:

“Subject to the provisions of chapter 171 of this title, the

district courts, together with the United States District Court for

the District of the Canal Zone and the District Court of the

Virgin Islands, shall have exclusive jurisdiction of civil actions

on claims against the United States, for money damages, ac-

cruing on and after January 1, 1945, for injury or loss of prop-

erty, or personal injury or death caused by the negligent or

wrongful act or omission of any employee of the Government

while acting within the scope of his office or employment, under

circumstances where the United States, if a private person,

would be liable to the claimant in accordance with the law of

the place where the act or omission occurred.”

—3—

STATEMENT OF THE CASE

On July 12, 1979, County of San Diego, a political subdivision

of the State of California, filed a Complaint in the United States

District Court for the Southern District of California against the

United States of America, the Immigration and Naturalization

Service of the United States (I.N.S.), and their present and

former officers. The Complaint alieged that such defendants

were negligent in the administration and enforcement of the Im-

migration and Naturalization Act (8 U.S. Code § 1101 et seq.)

and other immigration laws in allowing illegal aliens to enter

into and remain in the United States. Specifically, they were

negligent in allowing aliens into the County of San Diego, in

failing to take custody of such illegal aliens, and in failing to

provide for their health care. The Complaint further alleged

that as a direct result of these negligent acts and omissions, the

County of San Diego had been damaged in the amount of

$1.8 million, which represented the amount of public funds

expended by the County of San Diego in providing health care

for illegal aliens during the fiscal years 1976 and 1979. The

Complaint also sought declaratory and injunctive relief.

Defendants filed a Motion to Dismiss on the grounds that the

District Court lacked jurisdiction of the subject matter and that

the Complaint failed to state a claim upon which relief could

be granted. The Motion to Dismiss was granted and the Order

was entered on February 6, 1980 (see Appendix A). Thus, for

purposes of the Motion to Dismiss, the allegations of the Com-

plaint were deemed true. The District Court ruled that sovereign

immunity barred plaintiff's damage claim and was not waived by

the Federal Tort Claims Act because there was no claim for

“injury or loss of property,” but merely for expenses (loss of

money) incurred in providing health care. The District Court

a

relied on People of the State of California v. United States (9th

Cir. 1962) 307 F.2d cert. denied, (1963) 372 U.S. 941 and Ore-

gon v. United States (9th Cir. 1962) 308 F.2d 568, cert. denied,

(1963) 372 U.S. 941. In these cases, the distinction was made

between loss of property because of fire. which would be com-

pensable under the Federal Tort Claims Act, and expenses in-

curred in fighting a fire to prevent loss of property, which was

non-compensable.

Injunctive relief was denied on the grounds that judicial re-

view was not available for discretionary functions of the Attorney

General.

The County of San Diego filed an appeal in the United States

Court of Appeals for the Ninth Circuit which affirmed the judg-

ment of the District Court on October 16, 1981 (Appendix B).

From this judgment, Petitioner seeks the within Writ of Certio-

rari.

—3—

REASONS FOR GRANTING THE WRIT

THE CLAIM FOR DAMAGES IS NOT BARRED BY SOV-

EREIGN IMMUNITY AND IS ALLOWABLE UNDER

THE FEDERAL TORT CLAIMS ACT.

The doctrine of sovereign immunity provides that “the

United States, as sovereign, is immune from suit as it consents

to be sued . . . and the terms of its consent to be sued in any

court define that court's jurisdiction to entertain the suit.” United

States v. Sherwood (1941) 312 U.S. 584, 586, 85 L.Ed. 1058;

United States v. Testan (1976) 424 U.S. 392, 399, 47 L.Ed.2d

114. A waiver of this immunity ‘cannot be implied but must be

unequivocally expressed.” Ibid.

Indeed, such waiver has been unequivocally expressed in 28

U.S. Code Section 1346(b), more commonly known as the Fed-

eral Tort Claims Act, which provides in pertinent part:

“... (b) Subject to the provisions of chapter 171 of this title,

the district courts, . . . shall have exclusive jurisdiction of civil

actions on claims against the United States, for money damages,

accruing on and after January 1, 1945, for injury or loss of

property, or personal injury or death caused by the negligent

or wrongful act or omission of any employee of the Govern-

ment while acting within the scope of his office or employ-

ment, under circumstances where the United States, if a private

person, would be liable to the claimant in accordance with the

law of rd where the act or omission occurred.” [Em-

phasis added.}

The case at bar is a case for ‘money damages for loss of prop-

erty,’ thus clearly invoking the above section. The County of

San Diego has lost in excess of $1.8 million in providing

health care to illegal aliens. It is basic that money is property;

therefore, loss of money is loss of property. The law has re-

_

mained unchanged on this issue since Pirie v. Chicago Title &

Trust Co. (1901) 182 U.S. 438, 45 L.Ed. 1171. In this case, the

Supreme Court stated:

"“, .. We are not unaware that a distinction between money

and other property is sometimes made, but it would be anoma-

lous in the extreme that in a statute which is concerned with the

obligations of debtors and the prevention of preferences to

creditors, the readiest and most potent instrumentality to give

a preference should have been omitted. Money is certainly

property, whether we regard any of its forms or any of its

theories. It may be composed of a precious metal, and hence

valuable of itself, gaining little or no additional value from

the attributes which give it its ready exchangeability and cur-

rency. And its other forms are immediately convertible into

the same precious metal, and even without such conversion

have, at times, even greater commercial efficacy than it.” [Em-

phasis added.} Id. at 443-444.

The concept that money is property was erroneously ignored

in People of the State of California v. United States, supra, 307

F.2d 941, and Oregon v. United States, supra, 208 F.2d 568, upon

which the District Court in this case based its decision. These

cases held that the United States could not be sued by states to

recover expenses incurred for fighting a fire which had negli-

gently spread from federal land, since a claim for expenses to

protect property did not constitute a claim for ‘injury or loss of

property’ under the Federal Tort Claims Act.

The Court of Appeals in People v. United States, supra, 307

F.2d 941, failed to properly distinguish the case of Rayonier, Inc.

v. United States (1957) 352 U.S. 315, 1 L.Ed.2d 354, which held

the United States liable under the Federal Tort Claims Act for

damages done as a result of negligent firefighting by the United

States Forest Service personnel. The Supreme Court reasoned:

—_——

“, . . [T]he very purpose of the Tort Claims Act was to

waive the Government's traditional all-encompassing immunity

from tort actions and to establish novel and unprecedented gov-

ernmental liability. The Government warns that if it is held

responsible for the negligence of Forest Service firemen a heavy

burden may be imposed on the public treasury. It points out

the possibility that a fire may destroy hundreds of square miles

of forests and even burn entire communities. But after long

consideration, Congress, believing it to be in the best interest

of the nation, saw fit to impose such liability on the United

States in the Tort Claims Act. Congress was aware that when

losses caused by such negligence are charged against the pub-

lic treasury they are in effect spread among all those who con-

tribute financially to the support of the Government and the

resulting burden on each taxpayer is relatively slight. But when

the entire burden falls on the injured party it may leave him

destitute or grievously harmed. Congress could, and appar-

ently did, decide that this would be unfair when the public as

a whole benefits from the services performed by Government

employees. And for obvious reasons the United States cannot

be equated with a municipality, which conceivably might be

rendered bankrupt if it were subject to liability for the negli-

gence of its firemen. There is no justification for this Court

to read exemptions into the Act beyond those provided by Con-

. If the Act is to be altered that is a function for the same

body that adopted it.” (Emphasis added.) Jd, at 319-320.

The reasoning in this case is applicable to the case at bar. The

County is similar to a municipality. It has had to and will con-

tinue to expend its limited fiscal resources for health care of

illegal aliens who are living in the County and who were either

allowed to enter this country or were not cared for due to the

negligence of federal employees. The language and purpose of

the Federal Tort Claims Act are clear. Any damages resulting

from Respondents’ negligence should rightfuily be paid by the

federal government so that the resulting burden is not borne by

one county, but is evenly spread among the nation’s taxpayers,

resulting in little or no hardship to anyone.

anGjan

The Court in People v. United States, supra, 307 F.2d 941,

also ignored the purpose of the Federal Tort Claims Act which

was Clearly defined in Indian Towing Co. v. United States (1955)

350 U.S. 61 at 68-69, 100 L.Ed. 48:

“The broad and just purpose which the statute was designed

to effect was to compensate the victims of negligence in the

conduct of governmental activities in circumstances like unto

those in which a private person would be liable and not to leave

just treatment to the caprice and legislative burden of indi-

vidual private laws.”

Therefore, since a claim has been stated for money damages

due to loss of property, the claim of the County was properly

brought before the District Court under the Federal Tort Claims

Act.

—9---

CONCLUSION

The claim for damages of the County of San Diego is not

barred by sovereign immunity, since it involves a loss of prop-

erty or money under the Federal Tort Claims Act which acts as

a waiver of sovereign immunity. Money is property, so the hold-

ing otherwise of the District Court and the Court of Appeals

based on the erroneous decisions of People v. United States and

Oregon v. United States cannot stand. This case presents an im-

portant issue relating to the proper interpretation of the Federal

Tort Claims Act. The lower courts have, in effect, read an

exemption into the Federal Tort Claims Act by tortuiously con-

struing the word property to not include a loss of money resulting

from the negligent acts or omissions of the United States.

It is respectfully submitted that a writ of certiorari should

issue to review the judgment below.

DATED: January 14, 1982

Respectfully submitted,

DonaLp L. CLarK, County Counsel

Lioyp M. Harmon, JRr., Chief Deputy

By

Janet B. Houts, Deputy

Attorneys for Petitioner

ay

IN THE

SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1981

NO.

County oF SAN DiEco, a political subdivision of the State of

California,

Petitioner,

v.

LEONEL J. CasTILLO, Commissioner, Immigration and Naturali-

zation Service; Mario T. Noto, Deputy Commissioner; E>DwARD

O'Connor, Western Regional Commissioner; JAMES J. O’'KEFFE,

San Diego District Director; DoNALD CAMERON, Chief Border

Patrol Agent, Sector No. 11; GriFFIN BELL, Attorney General;

UNITED STATES OF AMERICA; IMMIGRATION AND NATURALIZA-

TION SERVICE OF THE UNITED STATES.

Respondents.

CERTIFICATE OF SERVICE

I hereby certify that on this 14th day of January, 1982, three

copies of the Petition for a Writ of ( s:tiorari to the United States

Court of Appeals for the Ninth Circuit were mailed, postage pre-

paid, to each of the following named persons:

THE HONORABLE Rex LEE

Solicitor General of the United States

Department of Justice

Washington, D.C. 20001

WILLIAM H. KENNEDY, United States Attorney

Office of the United States Attorney

Southern District of California

United States Courthouse

940 Front Street, Room 5-N-19

San Diego, California 92189

I further certify that all parties required to be served have been

served.

DONALD L. CLark, County Counsel

Lioyp M. Harmon, Jr., Chief Deputy

By

Janet B. Houts, Deputy

Attorneys for Petitioner

contin

(Filed and entered February 6, 1980)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

COUNTY OF SAN DIEGO,

, a Civil No. 79-0827-GT

: ORDER

LEONEL J. CASTILLO, et al.,

Defendants.

Plaintiff, the County of San Diego, charges defendants with

negligently permitting illegal aliens to enter and to remain in San

Diego County. Plaintiff further alleges that defendants wrong-

fully refuse to take custody of aliens in San Diego County and to

provide health care to those illegal aliens who are not already in

the actual physical custody of defendants. Because of defendants’

negligence, plaintiff alleges that it must continually provide for

the health care needs of aliens who remain illegally within its

jurisdiction.

Plaintiff seeks damages for the costs it has incurred in pro-

viding health care to aliens during the past 31/4 years. Plaintiff

also seeks an injunction to restrain defendants from refusing to

take custody and to provide health care to aliens, from refusing

to reimburse the county for its costs and from enforcing Regula-

tion 8 C.F.R. §242.3(b). In addition, plaintiff seeks a writ of

mandamus compelling defendants to guard the border, to arrest

illegal aliens, to provide health care needs and to rescind 8 C.F.R.

§242.3(b). Finally, plaintiff seeks a declaratory judgment to the

effect that defendants have the duty to guard the border, to take

custody of illegal aliens and to provide them with health care,

audits

that 8 C.F.R. §242.3(b) is unlawful, arbitrary and capricious, and

that defendants must reimburse the county for health care services

it has provided to illegal aliens.

Defendants have moved to dismiss the complaint on the

grounds that the court lacks subject matter jurisdiction and that

the complaint fails to state a claim for which relief can be

granted.

DAMAGES

Plaintiff's claims for damages are barred by the doctrine of

sovereign immunity. The United States can be sued only with its

consent. United States v. Testan, 424 U.S. 393, 399 (1976). A

suit against a federal agency or official is deemed a suit against

the United States if the relief would operate against the sovereign.

Hawaii v. Gordon, 373 U.S. 57, 58 (1963). Should plaintiff re-

cover damages based upon defendants’ alleged conduct, the judg-

ment would operate against the United States as it would be paid

from the public treasury. Larson v. Domestic and Foreign Corp.,

337 U.S. 682 (1949). Therefore, plaintiff needs a waiver of

sovereign immunity on which to base this action.

Plaintiff relies on 28 U.S.C. $1346(b), the Federal Tort Claims

Act, for the waiver of sovereign immunity. $1346(b) gives dis-

trict courts exclusive jurisdiction of civil actions on claims against

the United States for money damages ‘‘for injury or loss of prop-

erty, or personal injury or death” caused by government em-

ployees’ negligent or wrongful act or omission.

Plaintiff has not alleged an “injury or loss of property.” There-

fore, §1346(b) does not confer jurisdiction. Plaintiff asserts that

the expenses it has incurred in providing health care for illegal

aliens constitute “property loss” within the meaning of the Fed-

eral Tort Claims Act. Two Ninth Circuit cases, however, hold

ani

precisely the opposite on analogous facts. California v. United

States, 307 F.2d 941 (9th Cir. 1962), cert. denied, 372 U.S. 941

(1963) and Oregon v. United States, 308 F.2d 568 (9th Cir.

1962), cert. denied 372 U.S. 941 (1963) involved suits by the

states to recover expenses they had incurred in fighting, control-

ling and extinguishing a fire which had spread from federal land

due to the negligence of United States Forest Service employees.

The court distinguished the claims for expenses incurred in fight-

ing the fire from damages to property. The court held that a

claim for recovery of expenses incurred did not constitute a claim

for damage or injury to property within the meaning of the Tort

Claims Act. Therefore, the district court had no jurisdiction.

The instant case involves a claim for expenses incurred in pro-

viding health are services to illegal aliens. This court is com-

pelled to follow the above Ninth Circuit authorities. Plaintiff's

claims for damages are dismissed for lack of jurisdiction.

INJUNCTIVE RELIEF

Restraining defendants from refusing to take custody of

illegal aliens in San Diego County.

8 U.S.C. §1252(a) provides: “Pending a determination of de-

portability in the case of any alien . . . such alien may, upon war-

rant of the Attorney General, be arrested and taken into custody.”

This section is permissive, not mandatory. See Manguerra v. INS,

390 F.2d 358 (9th Cir. 1968).

The government admits that illegal aliens ordinarily are not

kept in custody unless they pose a danger to public safety or are

likely to abscond. If plaintiff was protesting the government's

failure to take particular aliens into custody, the government's

decision could be reviewed against such a standard. However,

aniiidion

plaintiff seems to be seeking review of the government's overall

policy regarding the arrest and release on bond or conditional

parole of illegal aliens. This policy is committed to the discretion

of the Attorney General and is unreviewable.

Restraining defendants from refusing to provide health care

services to illegal aliens not taken into custody.

28 U.S.C. $1252(c) directs the Attorney General “to arrange

for appropriate places of detention for those aliens whom he shall

take into custody and detain . . .” 42 U.S.C. §$249(c) authorizes

public health service care for aliens detained by the INS.

Plaintiff seeks an injunction which in effect would compel the

government to provide health care services to those illegal aliens

who are not in custody. Since the government is not required to

furnish such services unless the aliens are in custody, plaintiff is

actually seeking review of the government's policies and decisions

regarding the arrest and detention of illegal aliens. These over-

all policies are not subject to judicial review.

Restraining defendants from refusing to reimburse San Diego

County for costs incurred in providing health care services

to illegal aliens.

The complaint alleges that defendants refuse to reimburse

plaintiff for its damages. The damages referred to are the public

funds used to provide health care services to illegal aliens. How-

ever, the court does not have jurisdiction to award these damages.

Therefore, this portion of the complaint fails to state a claim for

which relief can be granted.

Restraining defendants from enforcing the provisions of

8 C.F.R. §242.3(b).

As set forth above, 8 U.S.C. $1252(c) directs the Attorney

—A-5—~

General ‘to arrange for appropriate places of detention for those

aliens whom he shall take into custody and detain. .. ."". The chal-

lenged regulation provides that an alien confined in an institution

or hospital shall not be accepted into physical custody by the INS

until deportation by order is imminent. The regulation further

provides that when an alien is an inmate of a public or private

institution at the time deportation proceedings commence, expense

for the maintenance of the alien shall not be incurred by the

United States until the INS assumes actual physical custody.

Plaintiff contends that the promulgation of this regulation was

arbitrary and capricious and beyond defendants’ statutory author-

ity. Plaintiff seeks to enjoin enforcement of this regulation.

The mandatory language of $1252(c) pertains to the Attorney

General’s duty regarding aliens taken inte custody. As to those

aliens, appropriate places of detention are to be provided. The

challenged regulation sets forth policies regarding the timing of

taking already-confined aliens into federal custody. Since the At-

torney General is given discretion by §1252(a) to determine

whether to arrest and take aliens into custody at all, there is no

“law to apply” to provide a standard by which to review this

regulation as to when certain aliens are to be taken into custody.

WRIT IN THE NATURE OF MANDAMUS

Judicial review is not available for the reasons set forth with

regard to injunctive relief.

DECLARATORY JUDGMENT

A declaratory judgment is merely an additional remedy in cases

of which the court has jurisdiction. Because jurisdiction is lacking

in this case, the declaratory judgment remedy is not available.

wv

Defendants’ motion to dismiss is granted.

IT IS SO ORDERED.

Dated: February 5, 1980

/s/ Gordon Thompson, Jr.

GORDON THOMPSON, JR., Judge

United States District Court

Copies to:

Phillip L. Kossy, Deputy

County Counsel's Office

355 County Administration Center

1600 Pacific +> amend

San Diego, California 92101

Paul Blankenstein

Lewis K. Wise

Attorneys, Department of Justice

10th & Constitution Avenue, N.W.

Washington, D.C. 20530

john R. Neece, Esq.

Assistant U.S. Attorney

cunf}> Jams

(Filed October 16, 1981)

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COUNTY OF SAN DIEGO

Plaintiff-Appellant,

~ No. 80-5271

LEONEL J. CASTILLO, Commissioner D. C. No. 79-0827

of Immigration and Naturalization MEMORANDUM

Service, et al.,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of California

J. Gordon Thompson, Jr., U.S. District Judge, Presiding

Argued and Submitted: October 9, 1981

Before: KENNEDY and PREGERSON, Circuit Judges, and

GRAY,* District Judge.

The correct and succinct opinion of the district court states all

that is needed for a proper disposition of this case.

AFFIRMED.

*Honorable William P. Gray, United States District Judge for the Cen-

tral District of California, sitting by designation.

=— ro

OFFICE OF THE CLERK

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NOTICE OF ENTRY OF JUDGMENT

Judgment was entered in this case as of the file stamp date on

the attached decision of the court.

Petition for Rehearing (FRAP 40)

A petition for rehearing may be filed within 14 days from the

entry of judgment. A petition should not be filed in order to

reargue the case but should only be filed to direct attention to

material facts of law possibly overlooked in the decision. The 15

page limit allowed by the rule must be observed. In addition, 3

copies of the petition are required unless the petition includes a

suggestion for rehearing en banc (in such instances 24 copies are

required in addition to the original). The petition should of

course be directed to the Clerk of the Court. A petition for re-

hearing must be submitted on 81/, x 11 inch paper, must show

complete proof of service to all parties, and the original must

contain an original signature of the counsel/pro per litigant sub-

mitting the petition.

Bill of Costs (FRAP 39)

See Rule 39 of FRAP for information as to which party is al-

lowed costs on appeal. If a party is allowed costs, the bill of

costs must be filed within 14 days from the entry of judgment.

Objections to the bill of costs by an adversary party must be filed

within 7 days thereafter (see attached form).

Issuance of the Mandate (FRAP 41)

The mandate is the certified copy of the judgment. The man-

date is scheduled to be issued 21 days from the entry of judgment

unless the court directs otherwise. A timely petition for rehearing

will stay the issuance of the mandate. If the petition is denied,

the mandate will be entered 7 days later. A direct motion for stay

of mandate must be filed in an original plus three copies.

Petition for Writ of Certiorari

For information concerning the filing of this petition, refer to

the rules of the Supreme Court of the United States.

CA9-086 (8/27/80)

~ uolisoddg

Office - Supreme Court, U.S.

FILED

“EB 2% 1982

No. 81-1331

~—

In the Supreme Court of the United States —

OcTOBER TERM, 1981

COUNTY OF SAN DIEGO, PETITIONER

Vv.

ALAN C. NELSON, COMMISSIONER, .

IMMIGRATION AND NATURALIZATION SERVICE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS IN OPPOSITION

Rex E. Lee

Solicitor General

J. PAUL McGRATH

Assistant Attorney General

ROBERT S. GREENSPAN

JOHN C. HOYLE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

Dalehite v. United States, 346 U.S. 15 .......... 3

Maffei v. Nieves- Reta, 412 F. Supp. 42,

SP EPG PEED = ctcccecsceessecscccousss 4

Oregon v. United States, 308 F. 2d 568,

GIS0. GHEE, BIS WA GSE cccccccccccccccyces 2

People of the State of California v. United

States, 307 F. 2d 941, cert. denied,

PEPE cdeddcorsscenceseceoensvosee 2,3

Ray v. United States, 402 F. Supp. 40 .......... 3

Rayonier, Inc. v. United States, 352 U.S.315 ... 3

Redmond v. United States, 518 F.2d 811 ....... 4

Smith v. United States, 375 F. 2d 243,

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State of Idaho ex rel. Trombley v. United

States Department of the Army, No. 80-3415

SEs GU, B, SOEED cccccccctccecccecccss 2

United States v. Batchelder, 442 U.S. 114 ....... 4

United States v. Nixon, 418 U.S. 683 .......... 4

Statutes:

Federal Tort Claims Act, 28 U.S.C. 2671

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In the Supreme Court of the United States

OCTOBER TERM, I98]

No. 81-133!

COUNTY OF SAN DIEGO, PETITIONER

Vv.

ALAN C. NELSON, COMMISSIONER,

IMMIGRATION AND NATURALIZATION SERVICE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS IN OPPOSITION

Petitioner argues that the court of appeals erred in hold-

ing that the United States is not liable under the Federal

Tort Claims Act, 28 U.S.C. 2671 ef seq., for expenses

incurred in providing health care to aliens who, because of

the alleged negligence of the Immigration and Naturaliza-

tion Service, have been able to enter and remain in the

country illegally.

1. Petitioner filed the instant suit under the Federal Tort

Claims Act in the United States District Court for the

Southern District of California against the United States

and various officials and agencies of the government (Pet.

App. |). The suit alleged that the Immigration and Natural-

ization Service and its employees had negligently failed to

perform their statutory duty to keep illegal aliens out of the

2

country and that because of this negligence petitioner has

been required to expend substantial sums of money to

provide health care to these illegal aliens (ibid.).'

The district court (Pet. App. 3) dismissed the suit for lack

of subject matter jurisdiction. It held that the claim was not

one for “injury or loss of property” within the meaning of 28

U.S.C. 1346(b). In so holding, the court followed two prior

Ninth Circuit decisions, People of the State of California v.

United States, 307 F. 2d 941 (1962), cert. denied, 372 U.S.

941 (1963), and Oregon v. United States, 308 F. 2d 568

(1962), cert. denied, 372 U.S. 941 (1963), in which the court

of appeals rejected suits against the United States for

expenses incurred in fighting a fire that the government had

negligently failed to extinguish. See also State of Idaho ex

rel. Trombley v. United States Department of the Army,

No. 80-3415 (9th Cir. Jan. 28, 1982).

The court of appeals affirmed on the basis of the “correct

and succinct opinion of the district court” (Pet. App. B).

2. Petitioner asserts (Pet. 5-6) that the courts below erred

in failing to recognize that money is “property” and there-

fore the expenditure of money to care for the aliens is a

claim for “loss of property” within the meaning of the

jurisidictional provision of the Federal Tort Claims Act.

Petitioner’s argument, however, ignores the context in

which the term “property” is used in Section 1346(b).

The statute requires “injury or loss of property.” The

Ninth Circuit has properly construed that phrase as limited

to losses incurred from actual injuries to the person or

property of the plaintiff as a result of the government’s

'Petitioner also sought injunctive and declaratory relief, as well as

similar relief by way of a writ of mandamus, in the district court.

Petitioner abandoned the mandamus issue on appeal and has petitioned

this Court only regarding the damages issue.

3

negligent or otherwise wrongful act or omission. Thus, the

Ninth Circuit recognized that property destroyed by a fire is

recoverable under Rayonier, Inc. v. United States, 352

U.S. 315 (1957), but that expenses incurred in extinguishing

the fire are not. People of the State of California v. United

States, supra, 307 F. 2d at 944. What the Ninth Circuit

observed in 1962, in drawing this distinction, is equally true

today: “we are unable to find a single instance in the history

of litigation involving the Tort Claims Act where recovery

was permitted in the absence of injury to [the plaintiff's]

person or property.” /bid. See also Ray v. United States,

402 F. Supp. 40, 43 (D.S.C. 1975). Since the decision of the

court of appeals is a reasonable interpretation of the rele-

vant statutory language and does not conflict with the

decisions of any other court, review by this Court is

unwarranted.

3. Inany event, petitioner’s claim is plainly insubstantial

for another obvious reason: the Federal Tort Claims Act

excludes government tort liability for suits “based upon the

exercise or performance or the failure to exercise or per-

form a discretionary function or duty on the part of a

federal agency or anemployee of the Government, whether

or not the discretion involved be abused.” 28 U.S.C.

2680(a). This Court stated in Dalehite v. United States, 346

U.S. 15, 35-36 (1953), that Section 2680(a) includes all

“determinations made by executives or administrators in

establishing plans, specifications or schedules of opera-

tions. Where there is room for policy judgment anu secision

there is discretion” (footnote omitted).

The governmental activities challenged by petitioner—

the broad political, social and economic decisions made by

the Attorney General and the INS in determining how best

to carry out responsibilities imposed by the immigration

laws within budgetary and other constraints—plainly fall

within this category of functions, concerning which the

4

United States has not waived sovereign immunity under the

Tort Claims Act. “[T}he Government has a duty to main-

tain law and order, but how best to fulfill this duty is wholly

within the discretion of its officers, and § 2680(a) excepts

from the Act both discretionary functions and discretionary

duties.” Redmond v. United States, 518 F. 2d 811, 816-817

(7th Cir. 1975). See also United States v. Batchelder, 442

U.S. 114, 124(1979); United States v. Nixon, 418 U.S. 683,

693 (1974); Smith v. United States, 375 F. 2d 243, 246-247

(Sth Cir.), cert. denied, 389 U.S. 841 (1967); Maffei v.

Nieves- Reta, 412 F. Supp. 43, 44 n.4 (S.D. Cal. 1976,,

aff'd, 549 F. 2d 807 (9th Cir. 1977) (table).

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

Rex E. Lee

Solicitor General

J. PAauL McGRATH

Assistant Attorney General

ROBERT S. GREENSPAN

JOHN C. HOYLE

Attorneys

FEBRUARY 1982

DOJ-1982-02