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Zandi v. United States

United States District Court, D. Oregon

December 5, 2019

MEHDI ZANDI, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.[1]

          OPINION AND ORDER

          STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE

         Mehdi Zandi (“Zandi”) brings this FTCA action against the United States, alleging a negligence claim related to TSA's handling of his checked luggage. The United States moves to dismiss Zandi's complaint under Fed.R.Civ.P. 12(h)(3) for lack of subject matter jurisdiction, or, alternatively, for summary judgment under Fed.R.Civ.P. 56. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1346(b)(1). For the reasons explained below, the Court denies the United States' motion to dismiss and motion for summary judgment.

         BACKGROUND

         In January 2017, Zandi flew from Tehran, Iran, to Los Angeles, California, via Amsterdam and Portland. (Decl. Alison Milne Supp. Def.'s Mot. (“Milne Decl.”) Ex. 1, at 2-5.) Zandi checked four pieces of luggage which contained, among other things, artisanal candies, jams, and copperware wrapped in bubble wrap. (Milne Decl. Ex 1, at 2-3.)

         Before arriving in Los Angeles, U.S. Customs and Border Protection at the Portland International Airport screened Zandi and his luggage. (Milne Decl. Ex. 1, at 4.) Plaintiff then rechecked his luggage and boarded his connecting flight to Los Angeles. (Milne Decl. Ex. 1, at 4.) Upon arriving in Los Angeles, Zandi discovered that three of his bags were missing. (Milne Decl. Ex. 1, at 5.) A courier agency delivered the missing luggage to Zandi two days later. (Milne Decl. Ex. 1, at 5.)

         When Zandi opened his missing luggage, he discovered, among other things, that his copperware, artisanal candies, and jams were damaged. (SeeMilne Decl. Ex. 1, at 8.) In addition, Zandi discovered that one of his missing pieces of luggage had “a TSA Notice of Inspection inside of it, ” and all of his missing luggage had “TSA tape on the outside[.]” (SeeMilne Decl. Ex. 1, at 6.)

         Based on these events, Zandi filed this FTCA action against the United States in December 2018. In his complaint, Zandi alleged that TSA breached its “duty of care by not properly caring for [his] goods, by losing pieces, by improperly re-wrapping them, and by scratching, denting, and puncturing them.” (Compl. ¶ 20.) During discovery, Zandi acknowledged that his “luggage was handled by third parties aside from the TSA, ” and he was “unaware of what the condition of the contents in [his] checked luggage was at any point after [he] checked the luggage in Tehran until [he] regained control of [the luggage two days after arriving] in Los Angeles[.]” (Milne Decl. Ex. 1, at 4-6.)

         DISCUSSION

         I. SUBJECT MATTER JURISDICTION

         The United States moves to dismiss Zandi's complaint under Fed.R.Civ.P. 12(h)(3) for lack of subject matter jurisdiction.[2] The United States argues that TSA's repackaging of luggage following a security screening falls within the discretionary function exception to the FTCA, and therefore the Court lacks subject matter jurisdiction. See generally GATX/Airlog Co. v. United States, 286 F.3d 1168, 1173 (9th Cir. 2002) (“Where the [discretionary function] exception applies, the court lacks subject matter jurisdiction.”).

         A. Applicable Law

         “The FTCA waives the government's sovereign immunity for tort claims arising out of negligent conduct of government employees acting within the scope of employment.” Morales v. United States, 895 F.3d 708, 713 (9th Cir. 2018) (citing 28 U.S.C. § 1346(b)(1)). This waiver under the FTCA “allows the government to be sued ‘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.'” Id. (citation omitted). An exception to “this broad waiver of sovereign immunity [is] called the discretionary function exception[.]” Id. This exception “provides immunity from suit for ‘[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.'” Id. (citation omitted).

         The purpose of the discretionary function exception is “to prevent ‘judicial second guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.'” Morales, 895 F.3d at 713 (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984)). The United States bears the burden of demonstrating that the discretionary function exception applies in a given case. Id. (citing Prescott v. United States, 973 F.2d 696, 702 (9th Cir. 1992)).

         In Berkovitz v. United States, the Supreme Court established a two-step process for determining the applicability of the discretionary function exception. See486 U.S. 531, 536 (1988). The court must “determine first whether the act is ‘discretionary in nature,' which necessarily involves an ‘element of judgment or choice.'” Morales, 895 F.3d at 713 (quoting United States v. Gaubert, 499 U.S. 315, 322 (1991)). This “‘judgment or choice' requirement is not met where a ‘federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.'” Id. (quoting Berkovitz, 486 U.S. at 536). To be sure, “‘[i]f there is such a statute or policy directing mandatory and specific action, the inquiry comes to ...


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