Angulo v. Brown, et al

United States Court of Appeals
for the Fifth Circuit

No. 19-40887

Emmanuel Angulo,

Plaintiff—Appellant,

versus

Shawn Brown, Agent, United States Customs and Border
Protection; Jeffery McCrystal, Agent, United States
Customs and Border Protection; United States of
America,

Defendants—Appellees.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:18-CV-50

Before Smith, Clement, and Oldham, Circuit Judges.
Edith Brown Clement, Circuit Judge:
Plaintiff Emmanuel Angulo sued the United States of America and
Customs and Border Protection (“CBP”) Officers Shawn Brown and Jeffery
McCrystal for injuries suffered during an incident at the International Port of
Entry Gateway Bridge in Brownsville, Texas. The district court dismissed
Angulo’s claims against the United States for lack of subject-matter
jurisdiction based on the customs-duty exception to the Federal Tort Claims
United States Court of Appeals
Fifth Circuit
FILED
October 23, 2020

Lyle W. Cayce
Clerk
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Act (“FTCA”). The district court also granted summary judgment in favor
of Brown and McCrystal based on qualified immunity. We AFFIRM.
I. Facts and Proceedings
At the time of the events at issue, Angulo was a 71-year-old U.S.
citizen, was a retired military veteran, and suffered from disabilities including
cervical myelopathy and impaired hearing. In 2016, while returning from a
visit to Matamoros, Mexico, Angulo and a passenger were stopped by Brown
in one of the marked lanes at the port of entry. Surveillance cameras captured
what followed. Although both are soundless, the videos provide important
information about the interaction between Angulo and the CBP officers. One
video, an external camera, captured events from the front of Angulo’s van,
and the other, an internal camera in the passport control office, captured
events that took place inside the office.
Angulo alleges that Brown greeted and began questioning him in
Spanish, which Angulo took to be disrespectful and racially motivated.
Angulo asked to speak with a supervisor. The video shows Brown speaking
to Angulo, opening the rear door of the van to look inside, and repeatedly
stepping into the inspection station booth and then reemerging to continue
the conversation over the course of about five minutes. During this time
Angulo can be seen leaning out his window and gesturing to Brown.
About five minutes into the interaction, Brown placed a piece of paper
on Angulo’s windshield and gestured forward, directing Angulo to the
secondary inspection site for further examination. Angulo pulled forward
slightly, then abruptly stopped to verify that he would have the opportunity
to speak with Brown’s supervisor. Brown asked Angulo to shut off his vehicle
and hand over his keys; Angulo complied.
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Two other officers, McCrystal and Officer Eduardo Guerra,
1

approached the vehicle from the secondary inspection area because they
heard yelling coming from Brown’s lane. While Brown stepped away from
Angulo’s car door to move a parking cone out of the way, McCrystal
approached the driver’s side window and spoke briefly with Angulo.
What happened next is disputed. Angulo claims that “McCrystal
without any warning[ ] opened the door to the motor vehicle, . . . grabbed Mr.
Angulo by the neck and forcibly threw Mr. Angulo to the ground and placed
handcuffs on Mr. Angulo with the assistance of Agent Brown.”
The Government argues that McCrystal asked Angulo to unlock the
door, and that Angulo complied. McCrystal then opened the car door and
asked Angulo to exit the vehicle; Angulo did not comply. McCrystal claims
that he attempted to help Angulo from the vehicle, but that when Angulo
resisted he used a “shoulder-pin restraint technique” to remove Angulo
from the vehicle.
The video depicts McCrystal approaching the driver’s side window
and conversing briefly with Angulo. He appears to pull on the door handle,
then says something to Angulo, and finally he opens the door. McCrystal
converses further with Angulo before holding out a hand. The van lurches
forward.
2
McCrystal then reaches one arm into the van, which rocks slightly,
before McCrystal leans into the van with both arms. After a brief struggle,
McCrystal emerges holding Angulo with both arms wrapped around his
body, and then both fall to the ground. The view of what happens next is

1
Guerra was named as a defendant in Angulo’s initial complaint but was not
referenced in Angulo’s amended complaint.
2
Angulo had stopped the van atop a speed bump when he stopped to verify that he
would have a chance to speak with Brown’s supervisor; the lurch appears to be the van
settling down from atop the speed bump.
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obstructed by the van door and Guerra’s body, but the parties agree that this
was when McCrystal, with Brown’s assistance, placed handcuffs on Angulo
while he was on the ground.
The video shows that, a few moments later, McCrystal raises a
handcuffed Angulo to his feet and leads him toward the passport control
office. Angulo stumbles and falls, so Brown joins McCrystal, and the two
agents help Angulo to his feet and escort him to an interior office for further
questioning. Angulo alleges that the officers “forcibly marched and/or
dragged” him to the interrogation area, but both the exterior and interior
videos depict the three men walking under their own power, albeit at a brisk
pace. At no point do the videos depict Angulo being “dragged.”
The parties agree that, once the officers and Angulo had reached the
interior interrogation room, the handcuffs were removed, and Angulo was
searched and interviewed by two supervisory CBP officers. Angulo was
released after questioning. The entire incident, from the time Angulo first
pulled into the primary inspection lane until he is seen on the video getting
back into his van and leaving, lasted just over one hour.
Angulo sued the United States under the FTCA for assault, false
arrest, false imprisonment, and intentional infliction of emotional distress.
He also sued Officers Brown and McCrystal pursuant to Bivens for
unreasonable seizure, false arrest, and false imprisonment in violation of the
Fourth Amendment and excessive force in violation of the Fourth
Amendment. See Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
The Government filed a motion to dismiss claims against the United
States under Rule 12(b)(1) for lack of jurisdiction and to dismiss claims
against the officers under Rule 12(b)(6) for failure to state a claim or, in the
alternative, for summary judgment in favor of the officers.
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The district court dismissed all claims against the United States,
finding that, because the customs-duty exception to the FTCA found in 28
U.S.C. § 2680(c) applied to Angulo’s claims, the United States had not
waived sovereign immunity.
The district also court converted the motion to dismiss Angulo’s
Bivens claims against the officers into a motion for summary judgment based
on a defense of qualified immunity, which it granted. The district court found
Angulo’s claims for unreasonable seizure, false arrest, and false
imprisonment failed because Angulo had not been arrested or unreasonably
seized, and his claims for excessive force failed because Brown and
McCrystal had not used unreasonable or excessive force.
Angulo timely appealed.
II. Standard of Review
We review the grant of summary judgment de novo and apply the
same standard as the district court. Romero v. City of Grapevine, 888 F.3d 170,
175 (5th Cir. 2018). Summary judgment is appropriate when “there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “Although we review evidence
in the light most favorable to the nonmoving party, we assign greater weight
. . . to the facts evident from video recordings taken at the scene.” Carnaby
v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011). Thus, we consider “the
facts in the light depicted by the videotape,” resolving conflicts in the
nonmovant’s favor only where Angulo’s assertions are not “blatantly
contradicted” by video evidence. Scott v. Harris, 550 U.S. 372, 380–81
(2007).
We review dismissals under Federal Rule of Civil Procedure 12(b)(1)
based on exceptions to the FTCA de novo. Jeanmarie v. United States, 242
F.3d 600, 602 (5th Cir. 2001).
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III. Discussion
Angulo argues on appeal that granting summary judgment based on
qualified immunity on his unreasonable seizure claim was improper because
he was either arrested without probable cause or, at a minimum, seized
without reasonable suspicion. He also argues that the district court
misapplied the test for excessive use of force laid out in Graham v. Connor,
490 U.S. 386 (1989), and should have found that Angulo was clearly
subjected to excessive force under the circumstances.
Angulo also argues that 28 U.S.C. § 2680(c)’s customs-duty
exception to the FTCA’s waiver of sovereign immunity cannot apply to
intentional tort claims without eviscerating 28 U.S.C. § 2680(h)’s waiver for
“assault, battery, false imprisonment, false arrest, malicious prosecution,”
etc. when committed by a law enforcement officer. Even if the Government’s
reading of § 2680(c) and (h) is correct and the subsections are reconcilable,
Angulo argues that § 2680(c) is inapplicable in this instance because the
search on his vehicle had not yet begun when McCrystal pulled Angulo from
the vehicle.
A.
“Qualified immunity shields federal and state officials from money
damages unless a plaintiff pleads facts showing (1) that the official violated a
statutory or constitutional right, and (2) that the right was clearly established
at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735
(2011) (cleaned up).
3
“Qualified immunity shields from liability ‘all but the

3
As an antecedent matter, the Government asserted—briefly—that Angulo should
not have recourse to a Bivens action in the first place because the border is a new Bivens
context and special factors counsel against implying an action. See Ziglar v. Abbasi, 137 S.
Ct. 1843, 1857–58 (“[T]he Court has made clear that expanding the Bivens remedy is now
a ‘disfavored’ judicial activity.”). Although this court has recognized Bivens actions against
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plainly incompetent or those who knowingly violate the law.’ Accordingly,
‘qualified immunity represents the norm,’ and courts should deny a
defendant immunity only in rare circumstances.” Romero, 888 F.3d at 176
(first quoting Malley v. Briggs, 475 U.S. 335, 341 (1986), and then quoting
Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)). The plaintiff has the burden
to negate a properly raised defense of qualified immunity. Poole v. City of
Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
Thus, to avoid summary judgment, Angulo must show that—viewing
the evidence in the light most favorable to his claims and resolving factual
disputes in his favor—he has put forth enough evidence that a jury could

CBP officers in the past, see Martinez-Aguero v. Gonzalez, 459 F.3d 618 (5th Cir. 2006)
(denying qualified immunity to CBP agent at border on Bivens claim), cert. denied, 549 U.S.
1096 (2006), the Supreme Court’s recent ruling in Hernandez v. Mesa strongly implies that
proximity to the border alone is sufficient to qualify as a “new context” in which Bivens is
unavailable, 140 S. Ct. 735 (2020) (“Since regulating the conduct of agents at the border
unquestionably has national security implications, the risk of undermining border security
provides reason to hesitate before extending Bivens into this field.”).
Nonetheless, we will assume without deciding that a Bivens remedy is available for
three reasons. First, the international implications of a cross-border shooting—of vital
importance in Hernandez—are not present here, where the dispute is more similar to
standard Fourth Amendment unreasonable seizure cases to which Bivens has applied in the
past. Second, the Supreme Court has expressly endorsed the “assume-and-dispose”
approach in “appropriate” cases. See Hernandez v. Mesa, 137 S. Ct. 2003, 2007 (2017);
Wood v. Moss, 572 U.S. 744, 757 (2014) (assuming without deciding that a Bivens remedy
exists, despite describing it as “an antecedent issue”). This court has done the same. See
Petzold v. Rostollan, 946 F.3d 242, 248 n.21 (5th Cir. 2019); Serrano v. Customs & Border
Patrol, --- F.3d ---, 2020 WL 5539130, at *11 (5th Cir. Sept. 16, 2020). Third, the Supreme
Court has “repeatedly stressed the importance of resolving immunity questions at the
earliest possible stage of the litigation.” Wood, 572 U.S. at 755 n.4 (cleaned up). We can
resolve this case now, without having to decide—lacking the benefit of a district court
opinion and with only a single paragraph of briefing—whether Hernandez should be
understood to categorically preclude Bivens actions against CBP agents at the border. So,
we do.
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rationally find that he was unreasonably seized or arrested and that he was
subjected to unreasonably excessive force in the process.
(1)
In order to make out a claim for unreasonable seizure, false arrest, or
false imprisonment under the Fourth Amendment, Angulo must show that
he was unreasonably seized. Although Angulo concedes that CBP had the
right to stop him at the border, he argues that he was arrested without
probable cause—or at a minimum, seized without reasonable suspicion—
when he was removed from his vehicle, handcuffed, and brought into the
passport control office for questioning. Warrantless seizures are “per se
unreasonable unless they fall within a few narrowly defined exceptions,”
such as arrest with probable cause or a temporary seizure based on reasonable
suspicion. United States v. Ho, 94 F.3d 932, 935 (5th Cir. 1996). Relevant
here, one such “important exception is the border search doctrine.” United
States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993).
We have long recognized the Government’s “plenary authority to
conduct routine searches and seizures at the border, without probable cause
or a warrant.” United States v. Montoya de Hernandez, 473 U.S. 531, 537
(1985). As our colleagues in the Second Circuit explained, “a suspicionless
search at the border is permissible under the Fourth Amendment so long as
it is considered to be ‘routine.’” Tabbaa v. Chertoff, 509 F.3d 89, 98 (2d Cir.
2007). Because this interaction took place at the border in the context of
Angulo’s seeking entry to the United States, the Government was entitled to
conduct a routine search. United States v. Ramsey, 431 U.S. 606, 616
(“[S]earches made at the border, pursuant to the long-standing right of the
sovereign to protect itself by stopping and examining persons and property
crossing into this country, are reasonable simply by virtue of the fact that they
occur at the border.”).
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Here, CBP intended to question Angulo briefly and search his vehicle.
The Government does not need to show any level of suspicion to thoroughly
search an entrant’s vehicle at the border. United States v. Flores-Montano, 541
U.S. 149, 152 (2004). Courts have held that substantially longer and more
invasive searches than that to which Angulo was subjected were nonetheless
“routine” searches that required no level of particularized suspicion. See,
e.g., id. at 154 (finding that removal, disassembly, and reassembly of a fuel
tank was routine); Tabbaa, 509 F.3d at 95–99 (finding that detaining entrants
for four to six hours, subjecting them to pat-downs, and forcibly kicking their
feet open were nonetheless routine).
The hour of questioning is unquestionably within the Government’s
power, since “delays of one to two hours at international borders are to be
expected.” Flores-Montano, 541 U.S. at 155 n.3. Similarly, removing Angulo
from his vehicle and handcuffing him were only necessary because Angulo
refused to exit the vehicle voluntarily on his own. See Tabbaa, 509 F.3d at 100
(“[B]order crossers cannot, by their own non-compliance, turn an otherwise
routine search into a non-routine one.”). This was a routine inspection.
Angulo insists that what he experienced amounted to arrest, not mere
seizure for inspection. However, when the Government has authority to stop
or seize a person or property, that authority “necessarily carries with it the
right to use some degree of physical coercion or threat thereof to effect it.”
Graham, 490 U.S. at 396. Even outside the border context, using moderate
force and applying handcuffs are not enough to convert a stop into an arrest.
See United States v. Sanders, 994 F.2d 200, 206 (5th Cir. 1993) (“Clearly,
using some force on a suspect, pointing a weapon at a suspect, ordering a
suspect to lie on the ground, and handcuffing a suspect—whether singly or
in combination—do not automatically convert an investigatory detention
into an arrest requiring probable cause.”).
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In Sanders, for example, this court emphasized that handcuffs were
merely a precaution in support of a reasonable detention. Id. at 209. Here,
handcuffs were briefly applied to a suspect resisting a lawful inspection and
refusing to comply with reasonable commands necessary to carry out such an
inspection; they were removed promptly once Angulo reached the interview
room and was frisked. In the border context, this interaction lacked indicia
sufficient to lead a reasonable person to believe he had been arrested. We
therefore find that Angulo was neither arrested nor unreasonably seized.
(2)
Even when a seizure is otherwise justified, however, the use of force
to effect that seizure must be reasonable. To overcome the officers’ qualified
immunity defense on the excessive force claim, Angulo “must show ‘(1) an
injury, (2) which resulted directly and only from a use of force that was clearly
excessive, and (3) the excessiveness of which was clearly unreasonable.’”
Poole, 691 F.3d at 628 (quoting Ontiveros v. City of Rosenberg, 564 F.3d 379,
382 (5th Cir. 2009)). Injury need not be substantial but must be more than de
minimis. Hanks v. Rogers, 853 F.3d 738, 744–45 (5th Cir. 2017). Here, the
reasonableness prong is dispositive, so that is where we turn our attention.
The Supreme Court has explained that the “‘reasonableness’ of a
particular use of force must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.”
Graham, 490 U.S. at 396. Courts should consider such factors as “the
severity of the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.” Id. A use of force is more likely
to be reasonable when officers use “measured and ascending” actions that
correspond to a suspect’s level of compliance or resistance. See, e.g., Poole,
691 F.3d at 629; Galvan v. City of San Antonio, 435 F. App’x 309, 311 (5th Cir.
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2010) (finding use of force reasonable when it involved “measured and
ascending responses” to a plaintiff’s noncompliance).
The context of our analysis is an international border crossing, where
the “Government’s interest in preventing the entry of unwanted persons and
effects is at its zenith.” Flores-Montano, 541 U.S. at 152. Brown had plenary
authority to search Angulo and his vehicle and a duty to question him. When
“a car has been legitimately stopped by law enforcement officers, requesting
occupants to step out of the vehicle is a de minimis additional intrusion that is
outweighed by the government’s legitimate and weighty interest in officer
safety.” Davila v. United States, 713 F.3d 248, 260 (5th Cir. 2013) (cleaned
up).
Angulo alleges that he was peacefully conversing with Brown (albeit
tensely, given that he was accusing Brown of racism and demanding to speak
with Brown’s supervisor) and complying with all requests when he was
violently accosted by McCrystal, who allegedly grabbed him by the neck and
forcibly threw him to the ground. This is “blatantly contradicted” by the
video evidence. Scott, 550 U.S. at 380–81 (“The Court of Appeals should not
have relied on such visible fiction; it should have viewed the facts in the light
depicted by the videotape.”).
The video shows McCrystal and Guerra arriving to help Brown, after
several minutes of Brown’s interacting calmly with a wildly gesticulating and
uncooperative Angulo. McCrystal speaks with Angulo briefly, then attempts
to open the door. It is clearly locked, so he speaks with Angulo again. He tries
the door again, and again is unable to open it. He says something further to
Angulo, while pointing inside the window, and then successfully opens the
door. He then speaks with Angulo for several seconds, apparently asking him
to exit the vehicle; Angulo does not exit the vehicle. McCrystal briefly holds
a hand out to Angulo (explained by McCrystal as an effort to help Angulo
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from the vehicle); Angulo neither accepts the proffered assistance nor exits
on his own. McCrystal reaches into the vehicle with one arm; Angulo resists
this effort to extract him from the vehicle with such force that the vehicle
rocks to one side and the headlights flicker. Finally, McCrystal reaches in
with both arms, wraps them around Angulo’s midsection, and extracts
Angulo. McCrystal and Brown both testified that this was a standard
“shoulder-pin restraint technique” that the officers had been trained to use
under such circumstances; McCrystal visibly did not grab Angulo by the neck
or throw him to the ground. In short, the video shows the officers using
reasonable force to compel Angulo’s compliance with a command that they
were legally entitled to give him.
The reasonableness inquiry is objective and based on what the officers
knew at the time. Poole, 691 F.3d at 628. Angulo argues that he “did not fail
to give a declaration at Agent Brown’s request. Rather, his hearing disability
made it so he did not hear the questions.” Objectively, Brown could not know
Angulo’s reason for failing to respond to questions while communicating
clearly at other times—he knew only that Angulo was failing to respond to
questions. Brown reasonably interpreted this refusal to answer standard
questions, coupled with Angulo’s “completely unnecessary attitude[, as] an
attempt to distract [him] from the inspection,” which reasonably raises
suspicion that Angulo has a reason for trying to distract Brown from properly
inspecting his vehicle.
Angulo asserts that long-standing shoulder issues made the
handcuffing unusually painful for him. This may be true, but the officers did
not have access to Angulo’s health records. They couldn’t determine how
different means of asserting control would affect him personally—only that
they needed to “take reasonable steps to assert command of the situation.”
Davila, 713 F.3d at 260 (“The risk of harm to both the police and the
occupants of a stopped vehicle is minimized if the officers routinely exercise
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unquestioned command of the situation.” (quoting Arizona v. Johnson, 555
U.S. 323, 330 (2009)) (cleaned up)). Immobilizing a resisting suspect with
handcuffs is a reasonable step to assert command of the situation, particularly
where, as here, the handcuffs were removed just a few minutes later after the
suspect had been taken to an interview room.
Angulo relies on Deville v. Marcantel for the proposition that forcefully
removing someone from his or her vehicle, if unnecessary, can constitute
excessive force. 567 F.3d 156 (5th Cir. 2009). Deville is readily
distinguishable. In Deville, the plaintiff posed no risk of flight, she was not
suspected of committing any crime that would justify arrest, and officers
“engaged in very little, if any, negotiation with her” before “quickly
resort[ing] to breaking her driver’s side window and dragging her out of the
vehicle.” Id. at 167–68. Because she was not legitimately suspected of a crime
(nor for any other reason lawfully stopped), the officers also had no right to
ask her to step out of her vehicle or to arrest her. Id. at 164–65.
By contrast, here the officers had an indisputable right to inspect
Angulo’s vehicle, including by ordering him out of it. See Montoya de
Hernandez, 473 U.S. at 537–38; Davila, 713 F.3d at 260. This also includes
the implied right to use appropriate physical force to carry out the search, if
necessary. Graham, 490 U.S. at 396. Video evidence clearly depicts officers
engaging in negotiation to extract Angulo from his vehicle peacefully. They
had reason to suspect that he might be engaged in the type of serious criminal
activity that would correspond to a suspected effort to distract officers from
conducting a proper inspection, such as smuggling. Angulo actively resisted
this search and failed to answer the officers’ questions. In the face of active
resistance, the officers responded with “‘measured and ascending’ actions
that corresponded to” Angulo’s “escalating verbal and physical resistance.”
Poole, 691 F.3d at 629.
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Because the officers did not use excessive force, they are entitled to
qualified immunity.
B.
Finally, Angulo argues that the customs-duty exception to the FTCA
should not apply here. The FTCA waives sovereign immunity for claims “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 Government while acting
within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1).
However, under the customs-duty exception, that waiver does not apply to
“[a]ny claim arising in respect of the assessment or collection of any tax or
customs duty, or the detention of any goods, merchandise, or other property
by any officer of customs or excise.” 28 U.S.C. § 2680(c).
The Supreme Court has interpreted the exception broadly, explaining
that “‘any claim arising in respect of’ the detention of goods means any claim
‘arising out of’ the detention of goods.” Kosak v. United States, 465 U.S. 848,
854 (1984). This court has held that this includes intentional tort claims that
arise out of “the inspection, seizure, or detention of goods by a Customs
agent.” Jeanmarie, 242 F.3d at 604. In interpreting § 2680, we are cognizant
that “[s]tatutes waiving sovereign immunity of the United States are to be
‘construed strictly in favor of the sovereign.’” Id.; see also United States v.
Nordic Vill., Inc., 503 U.S. 30, 34 (“[T]he Government’s consent to be sued
must be construed strictly in favor of the sovereign.”(cleaned up)).
Angulo notes that § 2680(h) preserves the Government’s sovereign
immunity for claims involving “assault, battery, false imprisonment, false
arrest,” and other intentional torts, except when such torts are committed by
“investigative or law enforcement officers of the United States
Government.” He argues that applying § 2680(c) to intentional torts by CBP
officers eviscerates the “exception to the exception” in § 2680(h).
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When presented with this argument in the past, we have agreed with
our colleagues in the Ninth Circuit that “§§ 2680(c) and 2680(h) must be
interpreted in a manner that reconciles them, without doing violence to
either.” Gasho v. United States, 39 F.3d 1420, 1433 (9th Cir. 1994). As this
court explained in Jeanmarie, “[w]e agree with the Ninth Circuit that
‘[w]hen strictly construed in light of § 2680(c), the waiver of immunity in
§ 2680(h) applies only to tortious conduct not involving the seizure and
detention of goods by Customs.’” 242 F.3d at 604–05 (quoting Gasho, 39
F.3d at 1433–34); see also Davila, 713 F.3d at 256 (“[E]ven intentional torts
committed by law enforcement officers are exempt from FTCA suits when
such torts were committed during circumstances that would warrant a
detention-of-goods exception.”).
Angulo’s second effort to navigate around § 2680(c) is to argue that
his treatment arose prior to the inspection of his vehicle, while he was still
being directed to the secondary inspection area, so § 2680(c) is inapplicable.
Angulo cites Davila, in which this court held that § 2680(c) did not apply
where the tort was allegedly committed after another suspect (the plaintiff’s
son) had already fled in the vehicle, so the tort was “unrelated to the vehicle
or the detention thereof.” 713 F.3d at 257.
This argument finds no support in the facts. Although Angulo’s
secondary inspection had not yet begun, the primary inspection had—the
video shows Brown opening the van’s rear door and sticking his head in to
look around. McCrystal removed Angulo from the van specifically for the
purpose of facilitating the ongoing detention and inspection of the van. To be
sure, the officers had to pause their ongoing inspection of Angulo’s vehicle
to turn their attention to removing him therefrom when he resisted, but that
brief pause clearly does not unmoor the allegations here from the underlying
inspection and uninterrupted detention of the van.
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The facts in this case being far more similar to Jeanmarie than to
Davila, we hold that Jeanmarie controls, and § 2680(c) applies. The United
States has not waived sovereign immunity, and the district court properly
dismissed Angulo’s FTCA claims for lack of subject-matter jurisdiction.
IV. Conclusion
For the foregoing reasons, the district court’s judgment is
AFFIRMED.

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Andrew S. Oldham, Circuit Judge, concurring in part:
The majority correctly holds that the customs-duty exception to the
Federal Tort Claims Act bars Angulo’s claims against the United States. I
therefore join the majority’s excellent discussion of those claims in full. And
the majority correctly suggests that Angulo lacks a cause of action to sue the
individual CBP officers under Bivens. See ante, at 6 n.3. I would stop there.
The Supreme Court has told us that “the Bivens question . . . is
antecedent to the [constitutional] questions presented” in a case like this.
Hernandez v. Mesa, 137 S. Ct. 2003, 2006 (2017) (per curiam) (quotation
omitted); see also ante, at 6 n.3 (noting the Bivens question is “an antecedent
matter”). Once we’re satisfied the answer to that question is that the plaintiff
lacks a cause of action, “we should say so and no more.” Petzold v. Rostollan,
946 F.3d 242, 256 (5th Cir. 2019) (Oldham, J., concurring in the judgment).
Why? For one thing, I don’t think we should use our Article III power to
resolve a question that the plaintiff lacks a cause of action to present. Cf.
Chafin v. Chafin, 568 U.S. 165, 172 (2013) (“Federal courts may not decide
questions that cannot affect the rights of litigants in the case before them or
give opinions advising what the law would be upon a hypothetical state of
facts.” (quotation omitted)).
That’s especially true when the cause-of-action-lacking plaintiff
wants us to answer a constitutional question. “It is a well established principle
governing the prudent exercise of [federal court] jurisdiction that normally
[we should] not decide a constitutional question if there is some other ground
upon which to dispose of the case.” Escambia County v. McMillan, 466 U.S.
48, 51 (1984) (per curiam). This “procedural avoidance” doctrine has
frequently led the Supreme Court to focus on “an antecedent statutory issue,
even one waived by the parties, [when] its resolution could preclude a
constitutional claim.” Adrian Vermeule, Saving Constructions, 15 Geo. L.J.
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1945, 1948–49 (1997). See, e.g., Escambia County, 466 U.S. at 51–52
(remanding for court of appeals to consider statutory argument because
“[a]ffirmance on the statutory ground would moot the constitutional
issues”); Edward J. DeBartolo Corp. v. NLRB, 463 U.S. 147, 158 (1983)
(“Until the statutory question is decided, review of the constitutional issue
is premature.”). The doctrine is also the motivating force behind Pullman
abstention. See R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 498 (1941)
(“Such constitutional adjudication plainly can be avoided if a definitive ruling
on the state issue would terminate the controversy. It is therefore our duty to
turn to . . . questions under Texas law.”).
It’s true that the Supreme Court has skipped the antecedent Bivens
question “on occasion.” Hernandez, 137 S. Ct. at 2007. But it refused to do
so in Hernandez, opting instead to vacate our decision on the constitutional
merits because “intervening guidance provided in [Ziglar v.] Abbasi” meant
answering the Bivens question “may” be sufficient “to resolve th[e] . . .
case.” Ibid. Bivens is likewise sufficient here. So I’d stop there.
Case: 19-40887 Document: 00515613219 Page: 18 Date Filed: 10/23/2020