Liranzo v.

11-61
Liranzo v. United States
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2011 3
(Argued: January 30, 2012 Decided: August 9, 2012) 4
Docket No. 11-61 5
------------------------------------- 6
VITERBO LIRANZO, AKA VITERBO IGNACIO LIRANZO DICENT, 7
Plaintiff-Appellant, 8
- v - 9
UNITED STATES OF AMERICA, 10
Defendant-Appellee. 11
------------------------------------- 12
Before: SACK, RAGGI, and CHIN, Circuit Judges. 13
14
Appeal by the plaintiff from a judgment of the United 15
States District Court for the Eastern District of New York 16
(Sandra J. Feuerstein, Judge) dismissing for lack of subject 17
matter jurisdiction the plaintiff's claims relating to his 18
mistaken detention as a removable resident alien. The district 19
court concluded that subject matter jurisdiction was lacking over 20
the plaintiff's Federal Tort Claims Act claims because there was 21
no private analogue to the immigration detention suffered by the 22
plaintiff, as required to find a waiver of the United States' 23
sovereign immunity under the Act. Because we conclude that there 24

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1
In 1996, Congress enacted the Illegal
Immigration Reform and Immigrant
Responsibility Act (IIRIRA), 110 Stat.
3009-546. . . .
. . . .
Before IIRIRA's passage, United States
immigration law established "two types of
proceedings in which aliens can be denied the
hospitality of the United States: deportation
hearings and exclusion hearings." Exclusion
hearings were held for certain aliens seeking
2
is such an analogue, we vacate the judgment of the district court 1
in part and remand for further proceedings. We affirm the 2
district court's judgment insofar as it dismissed the plaintiff's 3
Fourth Amendment claim, which he does not challenge on appeal. 4
Affirmed in part, reversed in part, and remanded. 5
LAWRENCE K. KATZ, Katz & Kreinces LLP, 6
Mineola, NY, for Plaintiff-Appellant. 7
JAMES H. KNAPP (Margaret M. Kolbe, 8
Varuni Nelson, on the brief), Assistant 9
United States Attorneys, of counsel, for 10
Loretta E. Lynch, United States Attorney 11
for the Eastern District of New York, 12
Brooklyn, NY, for Defendant-Appellee. 13
SACK, Circuit Judge: 14
In March 2006, plaintiff Viterbo Liranzo, a United 15
States citizen, completed a term of incarceration in New York 16
State prison for felony possession of a controlled substance. 17
Before his release, United States Immigration and Customs 18
Enforcement ("ICE") erroneously identified him as a permanent 19
resident alien who had been convicted of a felony, which rendered 20
him subject to removal. 1 He was released to the custody of ICE 21

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entry to the United States, and deportation
hearings were held for certain aliens who had
already entered this country. . . .
. . . .
In IIRIRA, Congress abolished the distinction
between exclusion and deportation procedures
and created a uniform proceeding known as
"removal." See 8 U.S.C. §§ 1229, 1229a.
Vartelas v. Holder, 132 S. Ct. 1479, 1483-84 (2012) (citations
omitted). In this opinion we therefore use the term "removal"
instead of "deportation." We have not, however, changed the term
"deportation" in quotations of the district court or of either
party.
3
and transported to a detention center in Louisiana pending 1
removal. During removal proceedings in Louisiana, it was 2
discovered that Liranzo is a U.S. citizen, and he was therefore 3
released. 4
Thereafter, Liranzo brought the instant complaint in 5
the United States District Court for the Eastern District of New 6
York against the United States under the Federal Tort Claims Act 7
("FTCA" or the "Act") alleging, inter alia, that federal 8
immigration officials had falsely arrested and imprisoned him. 9
Following some two years of discovery, the matter was set for 10
trial. But before trial began, the district court (Sandra J. 11
Feuerstein, Judge) granted the government's motion to dismiss the 12
case for lack of subject matter jurisdiction because, the court 13
concluded, there was no private analogue to the immigration 14
detention suffered by plaintiff, as required for the Act to have 15

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2 The material facts relevant to the issue on appeal are
not in dispute. The facts are drawn from the record in the
district court, the parties' representations before this Court,
and the parties' pre-trial statement of stipulated facts. See
Am. Proposed Pre-Trial Order at 1-3, Liranzo v. United States,
No. 08 Civ 2940 (SJF)(ARL) (E.D.N.Y. July 8, 2010), ECF No. 31.
4
worked a waiver of the United States' sovereign immunity from 1
suit. 2
Inasmuch as we conclude that there is such an analogue, 3
we reverse and remand for further proceedings. We affirm the 4
district court's judgment insofar as it dismissed the plaintiff's 5
Fourth Amendment claim, which he does not challenge on appeal. 6
BACKGROUND 2
7
Liranzo's Citizenship 8
Plaintiff Viterbo Liranzo was born on May 10, 1955, in 9
the Dominican Republic. He entered the United States as a lawful 10
permanent resident in 1965 when he was ten years old. On 11
February 24, 1972, pursuant to a Dominican divorce decree, the 12
plaintiff's mother, Augustina Dicent, was awarded custody of 13
Liranzo. On October 6, 1972, when Liranzo was sixteen years old, 14
his mother became a naturalized U.S. citizen. Because he was a 15
lawful permanent resident in his mother's custody when she was 16
naturalized, and he was younger than eighteen years old at the 17
time, Liranzo obtained derivative citizenship on that date under 18
the immigration laws then in force. See Immigration and 19
Nationality Act ("INA") § 321(a)(3), 8 U.S.C. § 1432(a)(3) 20

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3 After the events in question, on May 15, 2007, Liranzo
obtained a certificate of citizenship. The government does not
dispute that Liranzo obtained derivative citizenship on October
6, 1972.
5
(repealed 2000) (providing for derivative citizenship upon, inter 1
alia, the "naturalization of the parent having legal custody of 2
the child when there has been a legal separation of the 3
parents"). 4
Derivative citizenship under section 321 of the INA was 5
"automatic; that is, when certain conditions exist[ed], a child 6
bec[ame] a U.S. citizen even though neither parent, nor the 7
child, ha[d] requested it." Lewis v. Gonzales, 481 F.3d 125, 131 8
(2d Cir. 2007) (per curiam). Nonetheless, under that regime, the 9
government did not issue a certificate of naturalization to 10
children who obtained derivative citizenship until such a 11
certificate was sought by the child or a parent. 3 See 8 C.F.R. § 12
320.3. Thus, apparently because Liranzo did not know he had 13
become a citizen, he continued to renew his "resident alien card" 14
(or "green card") until the mid-1990s. Liranzo's last green card 15
was effective through June 10, 2006. As a result of the 16
renewals, at the time of the events in question, federal 17
immigration records erroneously listed Liranzo as a lawful 18
permanent resident rather than as a citizen. 19
20

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4 Pursuant to the Criminal Alien Program, ICE attempts to
identify removable "aliens who are incarcerated within federal,
state and local prisons and jails" so that it can "process[] the
alien expeditiously and secur[e] a final order of removal for an
incarcerated alien[, ideally] before the alien is released to ICE
custody." Criminal Alien Program, ICE,
http://www.ice.gov/criminal-alien-program/ (last visited July 18,
2012). By identifying removable incarcerated aliens before their
release from prison, ICE endeavors to "decrease[] or eliminate[]
the time spent in ICE custody [prior to the alien's removal] and
reduce[] the overall cost to the federal government." Id.
6
Liranzo's New York State Conviction 1
and Subsequent Immigration Detention 2
3
In approximately September 2005, Liranzo was convicted 4
of criminal sale of a controlled substance in the fourth degree 5
in violation of New York Penal Law section 220.34 for selling 6
cocaine. He was incarcerated at the Nassau County Correctional 7
Center ("NCCC") in East Meadow, New York. His term of 8
incarceration was scheduled to end on or about March 17, 2006. 9
While Liranzo was serving his sentence, ICE agents 10
identified him as a resident alien convicted of a drug felony 11
through ICE's Criminal Alien Program. 4 ICE issued an immigration 12
detainer to NCCC officials requesting that they release Liranzo 13
only into ICE's custody so that he could be removed from the 14
United States. See generally 8 C.F.R. § 287.7(a) (describing the 15
nature and purpose of immigration detainers). Because of the 16
detainer, Liranzo was held at the NCCC for approximately seven 17
days beyond his projected release date. 18

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7
According to Liranzo, he was interviewed by an ICE 1
representative at the prison. Liranzo asserts that he told the 2
ICE representative that he, Liranzo, was a United States Citizen. 3
Liranzo also alleges that his sister spoke to another ICE 4
representative and provided the representative with Liranzo's 5
mother's naturalization papers. 6
On or about March 24, 2006, ICE took Liranzo into 7
custody. ICE also served him with a Notice to Appear for removal 8
proceedings, charging him as a removable alien who had committed 9
an aggravated felony. He was first held in an ICE detention 10
facility in Manhattan for some 23 hours, then taken to a facility 11
in Freehold, New Jersey, where he was held for another seven 12
days. Thereafter, he was transported to the Federal Detention 13
Center at Oakdale, Louisiana. 14
Liranzo's removal proceedings, during which he was 15
represented by counsel, began in Oakdale. On May 3, 2006, the 16
proceedings were adjourned to allow Liranzo's attorney to gather 17
documents for the purpose of substantiating Liranzo's claim to 18
citizenship. On or about May 21, 2006, his attorney filed a 19
motion to terminate the proceedings supported by Liranzo's birth 20
certificate and his mother's naturalization certificate and 21
divorce decree. 22
Thereafter, government officials investigated the 23
validity of Liranzo's mother's divorce decree and her award of 24

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8
custody of Liranzo to determine whether he would have met the 1
applicable requirements for derivative citizenship. These issues 2
were determined in Liranzo's favor on or about June 21, 2006. 3
On June 30, 2006, ICE released Liranzo. He was taken 4
to a bus terminal in Louisiana, where he arranged for his own 5
transportation back to New York City. With ICE's consent, 6
removal proceedings were formally terminated on or about July 20, 7
2006. 8
District Court Proceedings 9
After exhausting his administrative remedies by filing 10
a claim with the Department of Homeland Security, Liranzo filed 11
the instant complaint in the United States District Court for the 12
Eastern District of New York against the United States on July 13
18, 2008. He sought five million dollars in damages for "false 14
arrest and imprisonment" and other torts allegedly committed by 15
government officials in connection with his immigration 16
detention. On February 6, 2009, the United States answered the 17
complaint, elliptically asserting as one of its defenses that 18
Liranzo's claims were "subject to, and limited by," the FTCA. 19
Am. Answer at 4, Liranzo v. United States, No. 08 Civ. 2940 20
(SJF)(ARL) (E.D.N.Y. Feb. 6, 2009), ECF No. 9. After nearly two 21
years of discovery, a bench trial was scheduled to begin on 22

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5 With exceptions not relevant here, jury trials are not
available to plaintiffs bringing claims against the United States
under the FTCA. See 28 U.S.C. § 2402.
9
December 13, 2010. 5 No motion to dismiss was made, and no 1
motions for summary judgment were made by either party. 2
Federal Rule of Civil Procedure 12(h)(3) provides that 3
"[i]f the court determines at any time that it lacks 4
subject-matter jurisdiction, the court must dismiss the action." 5
F ED . R. CIV . P. 12(h)(3); see also Weinstein v. Iran, 609 F.3d 43, 6
47 (2d Cir. 2010) ("[S]ubject matter jurisdiction may be raised 7
at any point . . . ."), cert. denied, --- S. Ct. ----, No. 10- 8
947, 2012 WL 2368690, 2012 U.S. LEXIS 4760 (June 25, 2012). On 9
December 8, 2010, just five days before the scheduled start of 10
the bench trial, the government submitted a letter motion seeking 11
dismissal of the complaint for lack of subject matter 12
jurisdiction. The government premised its motion on the 13
defendant's sovereign immunity from suit based on the limited 14
nature of the FTCA's waiver of that sovereign immunity. See Wake 15
v. United States, 89 F.3d 53, 57 (2d Cir. 1996) ("Absent a 16
waiver, sovereign immunity shields the federal Government and its 17
agencies from suit. Thus, sovereign immunity is jurisdictional 18
in nature.") (ellipsis, brackets, and internal quotation marks 19
omitted). The waiver extends only to claims for which a private 20
analogue exists -- that is, the waiver extends only to claims 21
that could be brought against a "private individual under like 22

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10
circumstances," 28 U.S.C. § 2674 –- permitting the government to 1
be held liable only "under circumstances where the United States, 2
if a private person, would be liable to the claimant in 3
accordance with the law of the place where the act or omission 4
occurred," id. § 1346(b)(1). 5
The government's "chief legal argument" was that there 6
was no private analogue to immigration detentions because 7
"citizenship determinations and immigration matters are federal 8
functions reserved to the federal government, and, . . . because 9
a private individual cannot engage in such determinations, the 10
United States has not waived sovereign immunity on claims related 11
thereto." Def.'s Reply Letter Br. at 1, Liranzo v. United 12
States, No. 08 Civ. 2940 (SJF)(ARL) (E.D.N.Y. Dec. 14, 2010), ECF 13
No. 38 ("Def.'s Reply Letter Br.") (emphasis in original). 14
Although the government acknowledged that the FTCA 15
explicitly permits claims for false imprisonment to be brought 16
against the United States based on the acts of federal law 17
enforcement agents, see 28 U.S.C. § 2680(h) (waiving sovereign 18
immunity for claims against "investigative or law enforcement 19
officers of the United States Government . . . arising . . . out 20
of assault, battery, false imprisonment, false arrest, abuse of 21
process, or malicious prosecution"), the government urged the 22
district court to "look beyond the labels attached by Plaintiff 23
to his claims." Def.'s Letter Br. at 3, Liranzo v. United 24

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11
States, No. 08 Civ. 2940 (SJF)(ARL) (E.D.N.Y. Dec. 8, 2010), ECF 1
No. 35 ("Def.'s Letter Br."). According to the government, 2
despite the label, Liranzo's claims "arise[] from the ICE agents' 3
alleged negligent/erroneous citizenship determination of 4
Plaintiff and their resultant attempts to apply federal 5
immigration statutes to effectuate his deportation." Id. 6
Further, the government asserts, Liranzo "attempt[ed] to cloth[e] 7
'federal function tort claims' (over which the United States has 8
not waived sovereign immunity) in 'law enforcement intentional 9
tort' garb (over which the United States has waived sovereign 10
immunity)." Def.'s Reply Letter Br. at 2. 11
Liranzo responded that "[h]ad a private individual held 12
plaintiff prisoner for 105 days, New York would allow plaintiff 13
to recover." Pl.'s Letter Br. at 1-2, Liranzo v. United States, 14
No. 08 Civ. 2940 (SJF)(ARL) (E.D.N.Y. Dec. 9, 2010), ECF No. 36. 15
Therefore, Liranzo argued, a private analogue to the claims 16
asserted in the complaint existed. 17
By memorandum and order dated December 15, 2010, the 18
district court dismissed the action for lack of subject matter 19
jurisdiction pursuant to Rule 12(h)(3). It reasoned that 20
"[i]mmigration and detention pending deportation are governed 21
exclusively by federal law and therefore have no private 22
analogue." Mem. & Order at 9, Liranzo v. United States, No. 08 23
Civ. 2940 (SJF)(ARL) (E.D.N.Y. Dec. 15, 2010), ECF. No. 41 ("Mem. 24

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12
& Order"). It also read this Court's precedents, including Caban 1
v. United States, 671 F.2d 1230 (2d Cir. 1982) ("Caban I"), and 2
Caban v. United States, 728 F.2d 68 (2d Cir. 1984) ("Caban II"), 3
as indicating that for FTCA purposes, there is no private 4
analogue for federal immigration detentions. It concluded that, 5
"[a]s plaintiff's intentional tort claims are based upon the 6
detention of plaintiff pending deportation proceedings and the 7
process the immigration agents used to determine his citizenship 8
status, plaintiff has not established that a comparable cause of 9
action would exist against a private individual pursuant to New 10
York State law." Mem. & Order at 10. 11
Liranzo appealed from the judgment of dismissal. 12
DISCUSSION 13
When reviewing the dismissal of a complaint for lack of 14
subject matter jurisdiction, we review factual findings for clear 15
error and legal conclusions de novo, accepting all material facts 16
alleged in the complaint as true and drawing all reasonable 17
inferences in the plaintiff's favor. Morrison v. Nat'l Austl. 18
Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff'd on other 19
grounds, 130 S. Ct. 2869 (2010). "The plaintiff bears the burden 20
of proving subject matter jurisdiction by a preponderance of the 21
evidence." Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 22
635, 638 (2d Cir. 2005). The United States' waiver of immunity 23
under the FTCA "is to be strictly construed in favor of the 24

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6 The United States' sovereign immunity from suit is
ultimately derived from English common law. "While the political
theory that the King could do no wrong was repudiated in America,
a legal doctrine derived from it that the Crown is immune from
any suit to which it has not consented was invoked on behalf of
the Republic and applied by our courts as vigorously as it had
been on behalf of the Crown." Feres v. United States, 340 U.S.
135, 139 (1950) (footnote omitted).
7 Prior to the passage of the FTCA in 1946, if a private
individual was injured by a federal employee, he could only seek
relief from the federal government by petitioning Congress to
pass a "private bill" compensating him for his injuries.
Relief was often sought and sometimes granted
through private bills in Congress, the number
of which steadily increased as Government
activity increased. The volume of these
private bills, the inadequacy of
congressional machinery for determination of
facts, the importunities to which claimants
subjected members of Congress, and the
capricious results, led to [the passage of
13
government." Long Island Radio Co. v. NLRB, 841 F.2d 474, 477 1
(2d Cir. 1988). 2
I. The FTCA's Private Analogue Requirement 3
"'The United States, as sovereign, is immune from suit 4
save as it consents to be sued . . . , and the terms of its 5
consent to be sued in any court define that court's jurisdiction 6
to entertain the suit.'" United States v. Mitchell, 445 U.S. 7
535, 538 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 8
586 (1941)) (brackets omitted). 6 In 1946, Congress enacted the 9
Federal Tort Claims Act, which "constitutes a limited waiver by 10
the United States of its sovereign immunity and allows for a tort 11
suit against the United States under specified circumstances." 7
12

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the FTCA in 1946, in which the
government] . . . waived immunity and
transferred the burden of examining tort
claims to the courts.
Feres, 340 U.S. at 140; see also Erwin Chemerinsky, F EDERAL
JURISDICTION 663 (6th ed. 2012). The FTCA put an end to the
"notoriously clumsy" "private bill device." Dalehite v. United
States, 346 U.S. 15, 24-25 (1953), abrogation recognized by
Rayonier Inc. v. United States, 352 U.S. 315, 319 (1957).
14
Hamm v. United States, 483 F.3d 135, 137 (2d Cir. 2007) 1
(quotation marks omitted). The FTCA provides jurisdiction in the 2
federal courts and waives the sovereign immunity of the United 3
States for 4
claims against the United States, for money 5
damages . . . for . . . injury or loss of 6
property, or personal injury or death caused 7
by the negligent or wrongful act or omission 8
of any employee of the Government while 9
acting within the scope of his office or 10
employment, under circumstances where the 11
United States, if a private person, would be 12
liable to the claimant in accordance with the 13
law of the place where the act or omission 14
occurred. 15
16
28 U.S.C. § 1346(b)(1); see also 28 U.S.C. § 2674 ("The United 17
States shall be liable, respecting the provisions of this title 18
relating to tort claims, in the same manner and to the same 19
extent as a private individual under like circumstances."). 20
As originally enacted, the FTCA barred all suits 21
against the government "arising out of . . . false 22
imprisonment[ and] false arrest." 28 U.S.C. § 2680(h) (1970). 23
But in 1974, Congress enacted amendments to the FTCA principally 24

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8 "'[I]nvestigative or law enforcement officer' means any
officer of the United States who is empowered by law to execute
searches, to seize evidence, or to make arrests for violations of
Federal law." 28 U.S.C. § 2680(h).
9 The FTCA's jurisdictional provision, 28 U.S.C. § 1346(b),
as well as the FTCA's procedural provisions, which include the
private analogue requirement set forth in 28 U.S.C § 2674,
"apply" to the 1974 amendments' waiver of sovereign immunity for
the enumerated intentional torts. See 28 U.S.C. § 2680(h).
15
in response to abuses committed by federal law enforcement 1
officers in connection with "no-knock" drug raids in 2
Collinsville, Illinois, in which officers raided the wrong 3
families' homes. See generally Stanton R. Gallegos, Note, Are 4
Police People Too? An Examination of the Federal Tort Claims 5
Act's "Private Person" Standard as it Applies to Federal Law 6
Enforcement Activities, 76 B ROOK . L. REV . 775, 780-82 (2011). 7
Under the 1974 amendments, the FTCA explicitly waives sovereign 8
immunity "with regard to acts or omissions of investigative or 9
law enforcement officers of the United States," 8 for "any claim 10
arising . . . out of assault, battery, false imprisonment, false 11
arrest, abuse of process, or malicious prosecution." 9 28 U.S.C. 12
§ 2680(h). 13
By waiving sovereign immunity "under circumstances 14
where the United States, if a private person, would be liable to 15
the claimant in accordance with the law of the place where the 16
act or omission occurred," id. § 1346(b)(1), the FTCA directs 17
courts to consult state law to determine whether the government 18

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16
is liable for the torts of its employees. See FDIC v. Meyer, 510 1
U.S. 471, 478 (1994) ("[The] law of the State [is] the source of 2
substantive liability under the FTCA."); Feres, 340 U.S. at 142 3
("This provision recognizes and assimilates into federal law the 4
rules of substantive law of the several states . . . ."). The 5
FTCA does not waive sovereign immunity for claims based solely on 6
alleged violations of federal law. Meyer, 510 U.S. at 478. 7
"[T]he Act requires a court to look to the state-law 8
liability of private entities, not to that of public entities, 9
when assessing the Government's liability under the FTCA [even] 10
in the performance of activities which private persons do not 11
perform." United States v. Olson, 546 U.S. 43, 46 (2005) 12
(internal quotation marks omitted). It does not waive sovereign 13
immunity for claims against the government based on governmental 14
"action of the type that private persons could not engage in and 15
hence could not be liable for under local law." Chen v. United 16
States, 854 F.2d 622, 626 (2d Cir. 1988) (internal quotation 17
marks omitted). 18
The path of the case law on the FTCA's private analogue 19
requirement is long, winding, and sparsely marked. We therefore 20
think a rehearsal of the history of that case law may be helpful. 21
A. The Supreme Court's Private Analogue Jurisprudence 22
In Feres, one of the Supreme Court's early FTCA cases, 23
the Court considered the private analogue requirement as applied 24

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17
to servicemen injured in active duty "due to negligence of others 1
in the armed forces." 340 U.S. at 138. In the consolidated 2
cases comprising Feres, one plaintiff was killed in an army 3
barracks fire, one plaintiff had a towel left in his abdomen 4
following surgery performed by an Army doctor, and another 5
plaintiff died following surgery performed by Army surgeons, all 6
allegedly resulting from negligence of Army personnel. Id. at 7
136-37. All three (or their respective estates) sought damages 8
under the FTCA. Id. 9
In considering whether the FTCA waived the United 10
States' sovereign immunity for the plaintiffs' claims, the Court 11
conceded that "[i]n the usual civilian doctor and patient 12
relationship, there is of course a liability for malpractice. 13
And a landlord would undoubtedly be held liable if an injury 14
occurred to a tenant as the result of a negligently maintained 15
heating plant." Id. at 142. But the Court reasoned that such 16
analogies are sound only if one "consider[s] relevant only a part 17
of the circumstances and ignore[s] the status of both the wronged 18
and the wrongdoer." Id. Under the FTCA, "the liability assumed 19
by the Government . . . is that created by 'all the 20
circumstances,' not that which a few of the circumstances might 21
create." Id. 22
The Feres Court concluded that "there [was no] 23
liability 'under like circumstances,' for no private individual 24

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18
has power to conscript or mobilize a private army with such 1
authorities over persons as the Government vests in echelons of 2
command." Id. at 141-42. 3
The relationship between the Government and 4
members of its armed forces is 'distinctively 5
federal in character' . . . . To whatever 6
extent state law may apply to govern the 7
relations between soldiers or others in the 8
armed forces and persons outside them or 9
nonfederal governmental agencies, the scope, 10
nature, legal incidents and consequence of 11
the relation between persons in service and 12
the Government are fundamentally derived from 13
federal sources and governed by federal 14
authority. 15
Id. at 143-44. Thus, because "the relationship of military 16
personnel to the Government has been governed exclusively by 17
federal law," id. at 146, "the Government is not liable under the 18
Federal Tort Claims Act for injuries to servicemen where the 19
injuries arise out of or are in the course of activity incident 20
to service," id. 21
But just five years later, the Court adopted a broader 22
view of the private analogue requirement, albeit in a non- 23
military context. In Indian Towing Co. v. United States, 350 24
U.S. 61 (1955), the plaintiff's tug boat went aground after the 25
battery in a lighthouse operated by the Coast Guard ran out of 26
power. Id. at 62. Indian Towing brought a negligence claim 27
against the Coast Guard under the FTCA based on the failure of 28
its employees to maintain the lighthouse in working order. Id. 29
at 61-62. The government argued that the private analogue 30

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19
requirement "must be read as excluding liability in the 1
performance of activities which private persons do not 2
perform[,] . . . [i.e.,] 'uniquely governmental functions.'" Id. 3
at 64. Because only the Coast Guard operated lighthouses, the 4
government argued that this function was uniquely governmental, 5
and that no private analogue existed. Id. 6
The Court rejected the government's proposed test for 7
liability on the ground that "all Government activity is 8
inescapably 'uniquely governmental' in that it is performed by 9
the Government." Id. at 67. Conversely, "it is hard to think of 10
any governmental activity on the 'operational level,' our present 11
concern, which is 'uniquely governmental,' in the sense that its 12
kind has not at one time or another been, or could not 13
conceivably be, privately performed." Id. at 68. 14
The Court also observed that the statutory phrase 15
"under like circumstances" does not mean "under the same 16
circumstances." Id. at 64 (emphases added). The fact that there 17
were no private lighthouses in operation at the time did not mean 18
that there was no private analogue. 19
[I]f the United States were to permit the 20
operation of private lighthouses -- not at 21
all inconceivable -- the Government's basis 22
of differentiation would be gone and the 23
negligence charged in this case would be 24
actionable. Yet there would be no change in 25
the character of the Government's activity[,] 26
. . . and [it is unlikely that Congress 27
would] predicat[e] liability on such a 28

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20
completely fortuitous circumstance -- the 1
presence of identical private activity. 2
Id. at 66-67. 3
The Court concluded that the relevant private analogue 4
at issue was the duty imposed on the private "good Samaritan": 5
"[O]ne who undertakes to warn the public of danger and thereby 6
induces reliance must perform his 'good Samaritan' task in a 7
careful manner." Id. at 64-65. "The Coast Guard need not 8
undertake the lighthouse service. But once it exercised its 9
discretion to operate [the] light . . . and engendered reliance 10
on the guidance afforded by the light, it was obligated to use 11
due care to make certain that the light was kept in good working 12
order . . . ." Id. at 69. Because of the existence of this 13
private analogue, "[i]f the Coast Guard failed in its duty and 14
damage was thereby caused to petitioners, the United States is 15
liable under the Tort Claims Act." Id. 16
Rayonier Inc. v. United States, 352 U.S. 315 (1957) 17
signaled a further narrowing of the Court's view of Feres's 18
reasoning. There, the plaintiffs alleged that their property was 19
damaged by the United States Forest Service's negligent failure 20
to control a forest fire. Id. at 315-16. The government argued 21
that there was no private analogue because "neither the common 22
law nor the law of [the State of] Washington imposes liability on 23
municipal or other local governments for the negligence of their 24
agents acting in the 'uniquely governmental' capacity of public 25

-- 20 of 44 --

21
firemen." Id. at 318-19. The Court rejected the government's 1
argument because the relevant consideration is whether state law 2
would impose liability on a "private person" rather than on a 3
"municipal corporation or other public body" for "similar 4
negligence" as allegedly committed by the government in the case 5
at hand. Id. at 319. In doing so, the Court disapproved of 6
Dalehite v. United States, 346 U.S. 15, 43-44 (1953), which had 7
relied on Feres and the common law "immunity of . . . public 8
bodies for injuries due to fighting fire" to conclude that there 9
was no private analogue to the Coast Guard's firefighting 10
efforts, id. at 44. See Rayonier, 352 U.S. at 319. The Court 11
remanded for consideration of whether state law would hold a 12
private person fighting a fire in similar circumstances liable. 13
Id. at 320-21. 14
In United States v. Muniz, 374 U.S. 150 (1963), the 15
Supreme Court continued to constrict the reach of the rationales 16
relied upon in Feres. There, the Court considered whether suit 17
could be brought under the FTCA for "personal injuries sustained 18
during confinement in a federal prison, by reason of the 19
negligence of a government employee." Id. at 150. The 20
government argued that Feres defeated a private analogy, because, 21
among other things, "the relationship between the federal 22
prisoner and his custodians" is "uniquely federal in character." 23
Br. for United States, United States v. Muniz, 374 U.S. 150 24

-- 21 of 44 --

10 The Muniz Court's decision to look to the liability of
jailors and the States that employ them seems to be a departure,
or at least a change in emphasis in a new factual context, from
Indian Towing's and Rayonier's admonition to examine the
liability of private individuals under state law when deciding if
a private analogue exists, rather than the state law liability of
governmental entities. See also infra section II.B (discussing
potential analogies to law enforcement and citizen's arrests).
22
(1963), 1963 WL 105602 at *19. A unanimous Court (Justice White 1
not participating) rejected the government's reliance on Feres. 2
The Court reasoned that "[i]n the last analysis, Feres seems best 3
explained by the peculiar and special relationship of the soldier 4
to his superiors, the effects of the maintenance of such suits on 5
discipline, and the extreme results that might obtain if suits 6
under the Tort Claims Act were allowed for negligent orders given 7
or negligent acts committed in the course of military duty." Id. 8
at 162 (quotation marks and ellipsis omitted). It concluded 9
that, in the context of the federal prison system, "an analogous 10
form of liability exists. A number of States have allowed 11
prisoners to recover from their jailers [and from the States] for 12
negligently caused injuries." 10 Id. at 159-60. 13
Most recently, in a brief unanimous opinion in United 14
States v. Olson, 546 U.S. 43 (2005), the Court reaffirmed the 15
principles recognized in Indian Towing and its progeny. The 16
Court vacated a Ninth Circuit decision in which that court (1) 17
had found "no private-sector analogue for mine inspections," the 18
federal activity about which suit had been brought, id. at 45 19

-- 22 of 44 --

23
(internal quotation marks omitted), but (2) had concluded that 1
because "unique governmental functions" were at issue and 2
relevant state law imposed liability on "state and municipal 3
entities" under the circumstances, the FTCA waived sovereign 4
immunity, id. (internal quotation marks omitted). The Supreme 5
Court concluded that under its jurisprudence, whether state law 6
imposed such liability on state and municipal entities was 7
irrelevant to the sovereign immunity waiver, id. at 45-46, and 8
that there was indeed a relevant private analogy to the liability 9
of "private persons who conduct safety inspections," id. at 47. 10
The Court remanded the case with instructions to "the lower 11
courts [to] decide . . . in the first instance" "precisely which 12
[State] law doctrine applie[d]." Id. at 48. 13
B. This Court's Private Analogue 14
Jurisprudence in Non-immigration Cases 15
This Court has had several occasions on which to 16
consider the FTCA's private analogue requirement. In a trilogy 17
of cases decided in the 1980s, we confronted circumstances we 18
concluded were governed exclusively by federal law, were without 19
private analogue, and with respect to which sovereign immunity 20
had therefore not been waived by the FTCA. 21
In C.P. Chemical Co. v. United States, 810 F.2d 34 (2d 22
Cir. 1987), a producer of formaldehyde-based foam insulation 23
brought suit against the federal government after the Consumer 24
Product Safety Commission announced a ban on the insulation, 25

-- 23 of 44 --

24
alleging that the Commission was "gross[ly] negligen[t]" in 1
failing to follow proper rulemaking procedures and disseminating 2
false information about the banned insulation. Id. at 35-36. 3
The Court began by reviewing the legislative history of the FTCA, 4
which expressed a clear desire that the "constitutionality of 5
legislation, or the legality of a rule or regulation, should 6
[not] be tested through the medium of a damage suit for tort." 7
Id. at 37 (quoting H.R. REP . NO. 79-1287, at 6 (1945)). The court 8
reasoned that "quasi-legislative or quasi-adjudicative action by 9
an agency of the federal government is action of the type that 10
private persons could not engage in and hence could not be liable 11
for under local law." Id. at 37-38 (quoting Jayvee Brand v. 12
United States, 721 F.2d 385, 390 (D.C. Cir. 1983)) (quotation 13
marks and brackets omitted). Because there was "simply no 14
comparable rulemaking activity in private life," we decided that 15
"[t]he Commission's conduct clearly was a quasi-legislative 16
activity for which we find no private counterpart." Id. at 38. 17
In Chen, a printing company brought FTCA claims against 18
the government based on the General Services Administrations's 19
attempt to suspend and debar the company as a federal contractor. 20
854 F.2d at 623. Most of the plaintiff's claims were "grounded 21
in alleged negligent and willful violations of federal 22
procurement regulations, specifically, those requiring that a 23
contractor receive notice and a hearing prior to any suspension." 24

-- 24 of 44 --

11 Though Birnbuam predicted that the New York Court of
Appeals would recognize a common law right of privacy, we
subsequently acknowledged that our prophesy had been incorrect,
and found a failure to state a claim under the "same fact
pattern" in Hurwitz v. United States, 884 F.2d 684, 685 (2d Cir.
1989), cert. denied, 493 U.S. 1056 (1990).
25
Id. at 626. We concluded that "violation of the government's 1
duties under federal procurement regulations 'is action of the 2
type that private persons could not engage in and hence could not 3
be liable for under local law.'" Id. at 626 (quoting Jayvee 4
Brand, 721 F.2d at 390). We contrasted Chen's claims with those 5
in Birnbaum v. United States, 588 F.2d 319, 326 (2d Cir. 1978), 6
in which we observed that the "opening and reading of sealed mail 7
by [the Central Intelligence Agency], just as if by [a] private 8
party, violates [the] common-law right of privacy." 11 Chen, 854 9
F.2d at 626. We also rejected Chen's proposed private analogue, 10
"wrongful sanctions by private associations against individual 11
members," id., because no such tort liability existed under New 12
York law. Id. at 626-27. 13
And in Akutowicz v. United States, 859 F.2d 1122 (2d 14
Cir. 1988), the plaintiff brought claims against the government 15
when the State Department decided that he had relinquished his 16
United States citizenship after obtaining French citizenship. 17
Id. at 1123-25. We noted that "the FTCA does not extend to 18
conduct governed exclusively by federal law, or to conduct of a 19
governmental nature or function, that has no analogous liability 20

-- 25 of 44 --

26
in the law of torts." Id. at 1125 (quotation marks and citations 1
omitted). We decided that although "the FTCA imposes liability 2
upon the government to the same extent, and in the same manner, 3
as a private individual under 'like,' not identical, 4
circumstances," id. at 1125, "the withdrawal of a person's 5
citizenship constitutes a quasi-adjudicative action for which no 6
private analog exists." Id. at 1126. "[N]o private citizen is 7
empowered to certify the loss of American nationality." Id. at 8
1125. Nor were we willing to "analogize the relationship between 9
the government and its citizens with that between a private 10
association and its individual members," because no "cause of 11
action in tort for alleged misconduct by the association [in 12
improperly expelling one of its members]" existed under state 13
law. Id. at 1126 (quoting Chen, 854 F.2d at 627) (emphasis and 14
quotation marks omitted). 15
C. This Court's Treatment of FTCA 16
Claims Based on Immigration Detentions 17
In 1982 and 1984, respectively, we addressed FTCA 18
claims more similar to those at issue on this appeal -- claims 19
based on an allegedly erroneous immigration detention. In Caban 20
I and II, the plaintiff was stopped at John F. Kennedy 21
International Airport upon arrival from the Dominican Republic. 22
Caban I, 671 F.2d at 1230. Illiterate, he was unable to provide 23
documentation to substantiate his claims of United States 24
citizenship, and his answers to the INS officers' questions 25

-- 26 of 44 --

12 See infra section II.B (discussing the circumstances in
which an arrest can be privileged under New York law).
27
regarding his past and citizenship status raised their suspicion 1
(e.g., he denied knowing his own birthdate). Caban II, 728 F.2d 2
at 70. INS agents detained him for six days, after which they 3
determined that he was indeed a citizen. Id. Caban brought 4
claims against the United States for false arrest under the FTCA. 5
In Caban I, this Court concluded that the FTCA's 6
"discretionary function" exception -- which bars FTCA claims 7
"based upon the exercise or performance or the failure to 8
exercise or perform a discretionary function or duty," 28 U.S.C. 9
§ 2680(a) -- did not apply to the INS officers' decision to 10
arrest and detain Caban because the decision did not involve the 11
"weighing of important policy choices to which discretion is 12
essential." Caban II, 728 F.2d at 70 (describing Caban I). The 13
court remanded for further proceedings, a bench trial was held, 14
and the district court determined that the complaint should be 15
dismissed because the arrest was privileged under the federal 16
standards applicable to immigration officers, a standard 17
incorporated into New York law through its requirement that a 18
plaintiff suing a private individual for false imprisonment 19
establish that his confinement was "not . . . privileged." Id. 20
at 70-71 (internal quotation marks omitted).12
21

-- 27 of 44 --

13 We use the terms "false arrest" and "false imprisonment"
interchangeably. Under New York law, "the tort of false arrest
is synonymous with that of false imprisonment." Posr v. Doherty,
28
In Caban II, we affirmed the judgment of the district 1
court in favor of the government, after trial on remand from 2
Caban I. Id. at 75. We first noted that "INS agents are 3
'investigative or law enforcement officers' within the meaning of 4
[28 U.S.C. § 2680(h)]," the provisions of which waives sovereign 5
immunity for, inter alia, false arrest and imprisonment claims 6
against federal "investigative or law enforcement officers." 728 7
F.2d at 72. We then observed that "the reference in § 1346(b)[, 8
the central waiver of immunity provision of the FTCA,] to '[t]he 9
law of the place' means the 'whole law' of the state where the 10
incident took place" -- in that case, the State of New York -- 11
including any federal law that state law incorporated. Id. 12
(brackets and some quotation marks omitted). "New York state 13
courts would look to federal principles in determining the 14
standard by which INS officials' detention of a would-be entrant 15
are to be judged." Id. at 73. Because "a person seeking entry 16
into the United States has substantially less right to avoid 17
detention than does a person already lawfully within the United 18
States," id., "far less than [the] probable cause" that is 19
ordinarily required to detain a person will suffice to render the 20
detention privileged under the New York law of false 21
imprisonment, which incorporates federal standards, id. 13
22

-- 28 of 44 --

944 F.2d 91, 96 (2d Cir. 1991); see also infra note 17
(discussing potentially applicable state law).
29
We nonetheless recognized that the FTCA "speaks in 1
terms of the liability, under state law, of 'a private person.'" 2
Id. at 73. While "[a]n authorized government agent would be 3
privileged . . . to act to protect national borders, . . . it is 4
questionable . . . whether New York would extend that privilege 5
to a private person," id., the issue that was before us under 6
section 1346(b). 7
We reasoned, however, that even if a private person 8
would be held liable under New York State law, the FTCA only 9
provides for liability "in the same manner and to the same extent 10
as a private individual under like circumstances." 28 U.S.C. 11
§ 2674. We then cited Feres for the proposition that "[t]he 12
'like circumstances' language in [section] 2674 means that 'the 13
liability assumed by the Government . . . is that created by 'all 14
the circumstances,' not that which a few of the circumstances 15
might create.'" Id. at 73-74 (quoting Feres, 340 U.S. at 142). 16
[I]mmigration officers are accorded a special 17
status by law which requires them to detain 18
persons in situations also outlined by law. 19
These circumstances are far different from 20
those in which a person who is either thought 21
to have committed a crime or thought to be an 22
alien is detained by a private individual. 23
24
Id. at 74 (citing Feres, 340 U.S. at 141-42). 25

-- 29 of 44 --

30
We concluded that the "interplay among" the "like 1
circumstances" language in section 2647, "the government's 2
privilege to protect the border, and New York's recognition that 3
a privileged detention does not result in liability for false 4
imprisonment" required that "[t]he liability of the 5
government . . . be assessed in light of the liability New York 6
would impose upon one having a privilege to detain a would-be 7
entrant who did not satisfactorily establish his right to enter," 8
that is, in "conformance with the federal standards regarding 9
treatment of applicants for entry to the United States." Id. at 10
74 (quotation marks omitted). We therefore affirmed the district 11
court's ruling that under New York law, the government employees 12
who detained Caban had a "privilege to detain" him under the 13
circumstances at bar, and therefore their employer, the United 14
States, would not be liable for false imprisonment for the 15
privileged behavior. Id. at 74-75. 16
Judge Cardamone, concurring in the judgment, questioned 17
the majority's reasoning. Although he agreed that federal 18
standards applicable to immigration officers should be used to 19
assess liability, he noted the potential for confusion created by 20
the majority's citation to the "like circumstances" language of 21
section 2674 and Feres. Id. at 76 (Cardamone, J., concurring in 22
the judgment). Judge Cardamone thought the majority's reliance 23
on Feres was "ill-advised" because "[t]he Feres doctrine plainly 24

-- 30 of 44 --

31
does not deal with substantive tort law principles" such as were 1
at issue in Caban II, "but is concerned solely with . . . [the] 2
threshold jurisdictional question" of whether a private analogue 3
exists. Id. 4
II. Analysis 5
A. The Meaning of Caban II 6
Before the district court, Liranzo relied on Caban II 7
for the proposition that the United States waives its sovereign 8
immunity for FTCA claims arising from immigration detentions. 9
The district court disagreed, deciding that "Caban II does not 10
require an examination of every challenged deportation proceeding 11
to determine whether a plaintiffs claim has a private analogue. 12
Where, as here, the conduct challenged by the plaintiff is 13
exclusively governed by federal law, the FTCA does not waive 14
sovereign immunity." Mem. & Order at 10. The district court 15
relied on Caban II's statement that immigration officers are 16
"accorded a special status" "unlike any in which a private 17
individual could be involved," id. at 9 (quoting Caban II, 728 18
F.2d at 74; internal quotation marks omitted), to find the 19
absence of a private analogue and subject matter jurisdiction 20
over Liranzo's claims. 21
The reasoning in Caban II is complex. Perhaps as a 22
result, courts have diverged in their reading of the case. Some, 23
such as the district court in this case, view Caban II as 24

-- 31 of 44 --

14 See also Doe v. United States, 58 F.3d 494, 502 (9th Cir.
1995) (construing Caban II as holding that "immigration officers
have materially different duties than do private citizens, and
therefore no FTCA liability exists, even if a private person
could be liable for wrongfully detaining plaintiff"); Woodbridge
Plaza v. Bank of Irvine, 815 F.2d 538, 543 (9th Cir. 1987)
(same), superseded by statute on other grounds as stated in
Senior Unsecured Creditors' Comm. of First RepublicBank Corp. v.
FDIC, 749 F.Supp. 758, 773 (N.D. Tex. 1990); Lippman v. City of
Miami, 622 F. Supp. 2d 1337, 1341 (S.D. Fla. 2008) (same);
Schalliol v. Fare, 206 F. Supp. 2d 689, 695 n.24 (E.D. Pa. 2002)
(same).
15 See Rhoden v. United States, 55 F.3d 428, 431 (9th Cir.
1995) (per curiam); Munyua v. United States, No. 03 Civ. 04538
(EDL), 2005 WL 43960, at *4, 2005 U.S. Dist. LEXIS 11499, at *12-
*13 (N.D. Cal. Jan. 10, 2005) ("[T]he Caban case does not support
the sweeping conclusion that there is no jurisdiction under the
FTCA here . . . ."); Nguyen v. United States, No. 00 Civ. 528-R,
2001 WL 637573, at *8-*9, 2001 U.S. Dist. LEXIS 7512, at *26-*28
(N.D. Tex. June 5, 2001) ("Caban indicates that a lawful
detention can become unlawful at the point at which the INS's
decision to continue the detention is no longer reasonable."),
aff'd on other grounds, 65 F. App'x 509 (5th Cir. 2003); Tovar v.
United States, No. 98 Civ. 1682, 2000 WL 425170, at *7, 2000 U.S.
Dist. LEXIS 5044, at *23-*24 (N.D. Tex. Apr. 18, 2000) (Caban II
applied a federal standard to the merits of Caban's claim),
aff'd, 244 F.3d 135 (5th Cir. 2000) (unpublished table decision);
32
authority for the proposition that the United States has not 1
waived sovereign immunity for immigration detention claims 2
because there is no relevant private analogue. 14 This may arise 3
from the Caban II majority's citation to Feres, a case 4
considering only whether a private analogue existed, as authority 5
for judging federal immigration officers' conduct under a federal 6
rather than state standard. But other courts have -- in our view 7
correctly -- read Caban II as a case about the substantive 8
standard by which immigration officers' acts are to be judged -- 9
not about the presence or absence of a private analogue. 15 The 10

-- 32 of 44 --

Garza v. United States, 881 F. Supp. 1103, 1106 (S.D. Tex. 1995)
(describing Caban II as concluding that the "INS officer's
detention of [Caban, who was] entering country[, was] privileged
under New York law"); Gallegos v. Haggerty, 689 F. Supp. 93, 105
(N.D.N.Y. 1988) (denying the government's motion for summary
judgment on the merits of plaintiffs' FTCA claim); Saldana v.
United States, No. L-83-46, 1985 WL 5997, at *4 n.2, 1985 U.S.
Dist. LEXIS 14091, at *14 n.2 (S.D. Tex. Nov. 7, 1985) ("This
Court prefers the conceptual approach in the concurring opinion
of Judge Cardamone in Caban [to the question of what standard to
apply to the merits of FTCA claims related to immigration
detentions] rather than that in the majority opinion of Judge
[Kearse], but the result is the same under either approach.").
Another judge of the Eastern District of New York has
explicitly disagreed with the district court's reading of Caban
II here. Nakamura v. United States, No. 10 Civ. 2797 (FB)(RML),
2012 WL 1605055, at *3, 2012 U.S. Dist. LEXIS 64630, at *8
(E.D.N.Y. May 8, 2012) ("Contrary to the outcome of Liranzo and
defendant's arguments, Caban II does not stand for the sweeping
proposition that the actions of immigration agents in detaining a
person never have a private analogue, and that sovereign immunity
is never waived in such cases.").
33
Caban II court never even considered the FTCA's private analogue 1
requirement, as that issue was simply not before it on appeal. 2
If indeed the Caban II court had found the absence of a 3
private analogue to immigration detentions, its inquiry would 4
have been at an end because there would have been no waiver of 5
sovereign immunity, and thus no subject matter jurisdiction over 6
Caban's FTCA claims. Instead, the Caban II court considered the 7
substantive standards under which the immigration officials' 8
conduct was to be judged -- an inquiry that would only be 9
necessary, at least in a case in Caban II's posture, if a private 10
analogue existed. See, e.g., Feres, 340 U.S. at 143-44, 146 11
(finding that no private analogue existed, and refraining from 12

-- 33 of 44 --

16 Although other courts may have also interpreted Caban II
as concerning the FTCA's private analogue requirement, the
district court's reliance on Caban II to find a lack of subject
matter jurisdiction over an FTCA claim based on an immigration
detention is, as far as we can determine, unique. Cf. Munyua,
2005 WL 43960, at *4, 2005 U.S. Dist. LEXIS 11499, at *11
("Defendant has cited no case, and the Court has found none,
adopting such a sweeping exemption under the FTCA for conduct by
immigration officers like that alleged in this case. To the
contrary, courts have exercised jurisdiction over cases brought
under the FTCA involving misconduct by immigration officers at
the border.").
34
considering the standard to be applied on the merits); see also 1
id. at 141 (stating that generally, "[j]urisdiction is necessary 2
to deny a claim on its merits as matter of law as much as to 3
adjudge that liability exists"). We therefore do not read Caban 4
II as did the district court to indicate that there is no private 5
analogue to immigration detentions. 6
Moreover, the Caban II Court endorsed the district 7
court's statement in the case before it that "the United States 8
[is] not liable to Caban if the INS agents acted in conformance 9
with the federal standards regarding treatment of applicants for 10
entry to the United States." Caban II, 728 F.2d at 74 (emphasis 11
added; quotation marks omitted). That language apparently 12
contemplates a consideration of the facts of a particular 13
immigration detention FTCA claim on the merits, i.e., based on 14
the particulars of the "INS agents['] act[ions]." 16 Id. 15

-- 34 of 44 --

35
B. Whether a Private Analogue Exists in This Case 1
The district court concluded that "[i]mmigration and 2
detention pending deportation are governed exclusively by federal 3
law and therefore have no private analogue." Mem. & Order at 10. 4
Because Liranzo's "intentional tort claims [were] based upon the 5
detention of plaintiff pending deportation proceedings and the 6
process the immigration agents used to determine his citizenship 7
status," the district court found that he had "not established 8
that a comparable cause of action would exist against a private 9
individual pursuant to New York State law." Id. Citing Feres, 10
the government similarly argues that "[r]emoval, and the 11
regulation thereof, are federal functions -- in which private 12
citizens cannot engage -- that are exclusively reserved to [the 13
Department of Homeland Security]." Def.'s Br. 16 (emphasis in 14
original). 15
To say that the challenged action is one that only the 16
federal government does in fact perform does not necessarily mean 17
that no private analogue exists. Lighthouses, such as the one 18
that was the subject of Indian Towing, were at least at the time 19
operated only by the government. It was a function that "private 20
persons d[id] not perform." 350 U.S. at 64 (quotation marks 21
omitted). But "the presence of identical private activity" was 22
not required to find a private analogue, because the FTCA's 23
statutory phrase "under like circumstances" does not mean "under 24

-- 35 of 44 --

36
the same circumstances." Id. at 64, 67 (emphases added). Under 1
Olson, we are "require[d] . . . to look further afield" for a 2
private analogue when the government in fact is the only entity 3
that performs the actions complained of. Olson, 546 U.S. at 46. 4
Similarly, the fact that immigration detentions are 5
"uniquely governmental" does not mean they have no private 6
analogue for present purposes. "[A]ll Government activity is 7
inescapably 'uniquely governmental' in that it is performed by 8
the Government." Indian Towing, 350 U.S. at 67. This 9
consideration led the Indian Towing Court to reject a 10
construction of the Act under which "there would be no liability 11
for negligent performance of 'uniquely governmental functions,'" 12
id. at 64, as such an "exception" to the FTCA's waiver of 13
sovereign immunity would threaten to swallow the waiver entirely. 14
The Supreme Court has provided us with examples of how 15
to heed its admonition to "look further afield," Olson, 546 U.S. 16
at 46, for a private analogue. In Indian Towing and Olson, the 17
proper analogy was that "[p]rivate individuals, who do not 18
operate lighthouses [or inspect mines], nonetheless may create a 19
relationship with third parties that is similar to the 20
relationship between a lighthouse operator and a ship dependent 21
on the lighthouse's beacon[, or a mine inspector and a miner 22
dependent on the inspector faithfully carrying out his duty]." 23
Id. at 47. 24

-- 36 of 44 --

17 For the purposes of this discussion, we assume New York
law applies because the initial arrest and detention occurred in
New York. We express no opinion as to whether Louisiana law
might apply to some portion of Liranzo's claims based on the time
he was confined in Louisiana.
37
Here, the proper analogy seems to us be a person who, 1
entirely in his or her private capacity, places someone under 2
arrest for an alleged violation of the law -- a so-called 3
"citizen's arrest." Such a person may not execute an arrest 4
absent a legal privilege to do so. To successfully establish a 5
claim for false arrest and imprisonment under New York law, 17 a 6
plaintiff must therefore prove that "(1) the defendant intended 7
to confine [the plaintiff], (2) the plaintiff was conscious of 8
the confinement, (3) the plaintiff did not consent to the 9
confinement and (4) the confinement was not otherwise 10
privileged." Caban II, 728 F.2d at 71 (quoting Broughton v. 11
State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310, 12
314, cert. denied, 423 U.S. 929 (1975)) (emphasis added); accord 13
Posr v. Doherty, 944 F.2d 91, 97 (2d Cir. 1991). And under Caban 14
II, whether the ICE agents' actions here were "otherwise 15
privileged" is determined by consulting federal privileges 16

-- 37 of 44 --

18 Following the Supreme Court's statement in Olson that "a
court [must] look to the state-law liability of private entities,
not to that of public entities, when assessing the Government's
liability under the FTCA," 546 U.S. at 46, the Court of Appeals
for the Ninth Circuit considered whether cases envisioning the
application of federal privileges in FTCA suits, such as Caban
II, survive Olson. In Tekle v. United States, 511 F.3d 839 (9th
Cir. 2007), a case without a majority opinion as to the FTCA
issue, see id. at 850 n.7, Judge Tashima read Olson to require
the court to hold the IRS officers at issue to the same standards
as a private person executing a citizen's arrest. Id. at 850-54.
In doing so, Judge Tashima called into question a line of Ninth
Circuit cases relying on Caban II -- including Arnsberg v. United
States, 757 F.2d 971, 978–79 (9th Cir. 1985) and Rhoden, 55 F.3d
at 430-31. Tekle, 511 F.3d at 850-54. Judge Fisher, on the
other hand, refused to read Olson "to support the conclusion that
law enforcement privileges should not be recognized in FTCA
suits, and that federal officers are left only with those
privileges available to private citizens" because "Olson did not
involve such privileges, and . . . the FTCA's text does not
clearly foreclose their availability." Id. at 857 (Fisher, J.,
concurring). Judge Kleinfeld would have found that the FTCA
claim was not preserved for appeal, but if it was, he would have
joined Judge Fisher's concurrence. Id. at 861-62 (Kleinfeld, J.,
concurring).
This case does not require us to reach the issue of
what effect, if any, Olson has on the continuing viability of
Caban II, because the district court dismissed the case for lack
of a private analogue and did not reach the merits. Thus, the
district court did not have the occasion to opine on the
substantive standards applicable to the ICE agents' conduct here,
and we need not reach the issue now. Caban II remains the law of
this Circuit.
38
applicable to federal immigration officers. 18 Caban II, 728 F.2d 1
at 71. 2
There is some suggestion in the case law that the 3
proper analogy may be to state law enforcement conducted by 4
police officers instead of a citizen's arrest. In Muniz, the 5
Court endorsed a private analogy to the liability of states and 6
state jailors. Muniz, 374 U.S. at 159-60. And at least one 7

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39
court, the Northern District of California, has found the analogy 1
to law enforcement persuasive in the context of an FTCA claim 2
based on an immigration detention. See Munyua, 2005 WL 43960, at 3
*4, 2005 U.S. Dist. LEXIS 11499, at *12 ("The fact that the 4
challenged activities took place at the border does not negate 5
the analogy to law enforcement . . . ."). But in Olson, the 6
Court instructed that "a court [must] look to the state-law 7
liability of private entities, not to that of public entities, 8
when assessing the Government's liability under the FTCA . . . ." 9
546 U.S. at 46 (emphasis added). 10
Regardless of this ambiguity, in the context of this 11
case, the distinction between analogizing to a citizen's arrest 12
and an officer's arrest is of little moment -- in both cases, the 13
defendant will be liable for false arrest under New York law if 14
the arrest is not privileged. See, e.g., Downs v. Town of 15
Guilderland, 70 A.D.3d 1228, 1232, 897 N.Y.S.2d 264, 268 (3d 16
Dep't 2010) (police officer's arrest privileged for purposes of 17
false arrest claim if officer possessed probable cause to justify 18
arrest), appeal dismissed, 15 N.Y.3d 742, 933 N.E.2d 203, 906 19
N.Y.S.2d 804 (2010); White v. Albany Med. Ctr. Hosp., 151 A.D.2d 20
859, 860, 542 N.Y.S.2d 834, 835 (3d Dep't 1989) ("In New York, a 21
private citizen who makes an arrest does so at his peril; if the 22
person arrested did not in fact commit the crime for which he is 23
arrested, the person who arrests him is liable [for false arrest] 24

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40
even if he acts in good faith or has probable cause to make an 1
arrest."). Therefore, either analogue would suffice for present 2
purposes. 3
The fact that New York law applies different 4
substantive standards to citizens' and officers' arrests, see 5
generally 59 N.Y. J UR . 2D FALSE IMPRISONMENT § 37, is also of no 6
significance for present purposes because, under Caban II -- 7
which provides the law of this Circuit -- immigration detentions 8
executed by federal immigration officers are judged under federal 9
standards (subject to the considerations discussed supra note 10
18). 11
Our conclusion that there is a private analogue to the 12
government behavior at issue here receives further support from 13
the fact that the FTCA explicitly waives sovereign immunity for 14
"any claim" based on the "acts or omissions of investigative or 15
law enforcement officers" "arising . . . out of . . . false 16
imprisonment [and] false arrest." 28 U.S.C. § 2680(h) (emphasis 17
added). The plain language of the statute suggests that the 18
United States has indeed waived its sovereign immunity from suit 19
as to Liranzo's "claim," which "aris[es] . . . out of . . . false 20
imprisonment [and] false arrest." Id. In light of the 21
considerations discussed above, the government's suggestion that 22
we disregard the "false imprisonment" label Liranzo has affixed 23
to his claim so as to find it not to be encompassed by this 24

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41
explicit statutory language is unpersuasive. See Def.'s Letter 1
Br. at 3. 2
Akutowicz is not to the contrary. The district court 3
in this case relied on Akutowicz's reasoning that "the withdrawal 4
of a person's citizenship constitutes a quasi-adjudicative action 5
for which no private analog exists," because "no private citizen 6
is empowered to certify the loss of American nationality," 859 7
F.2d at 1125-26. See Mem. & Order at 9-10. But in Akutowicz, 8
there was no detention. The only action complained of was the 9
removal of the plaintiff's citizenship. Citizenship is a legal 10
status, which only the federal government is capable of altering. 11
A private individual cannot, without subsequent government 12
action, cause injury to another's citizenship. But a private 13
person is of course capable of falsely arresting another. See 14
generally Caban II, 728 F.2d at 71 (quoting Broughton, 37 N.Y.2d 15
at 456, 373 N.Y.S.2d at 93, 335 N.E.2d at 314)(setting out the 16
elements of a false arrest claim). 17
As for the government's argument that immigration 18
detentions are quintessentially federal and therefore no private 19
analogue exists per Feres and its progeny, see Def.'s Br. 14, 16, 20
although the "[p]ower to regulate immigration is unquestionably 21
exclusively a federal power," DeCanas v. Bica, 424 U.S. 351, 354 22
(1976), superseded by statute on other grounds as stated in 23
Chamber of Commerce of United States v. Whiting, 131 S. Ct. 1968, 24

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42
1974-75 (2011), it is not clear that immigration detentions are 1
necessarily and exclusively federal acts. For instance, under 2
current federal immigration law, "State and local law enforcement 3
officials" may be empowered (consistent with state law) to 4
"arrest and detain" aliens in certain circumstances. See 8 5
U.S.C. § 1252c(a); 8 U.S.C. § 1103(a)(10); Arizona v. United 6
States, 132 S. Ct. 2492, 2506 (2012) (describing limited federal 7
statutory authorization for state immigration detentions). 8
The fact that a complained of action occurs in a 9
quintessentially federal context, moreover, does not necessarily 10
mean that no private analogue exists. While the federal military 11
is undoubtedly quintessentially federal, so is the federal prison 12
system. The Supreme Court nonetheless, in Muniz, refused to 13
extend Feres to the latter context. See Muniz, 374 U.S. at 162. 14
In distinguishing Feres, the Muniz Court minimized Feres's 15
reliance on the fact that the military is quintessentially 16
federal. Id. It reasoned that "[i]n the last analysis, Feres 17
seems best explained by the peculiar and special relationship of 18
the soldier to his superiors, the effects of the maintenance of 19
such suits on discipline, and the extreme results that might 20
obtain if suits under the Tort Claims Act were allowed for 21
negligent orders given or negligent acts committed in the course 22

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19 One commentator has construed the post-Feres case law as
having abandoned reliance on the original rationales articulated
in Feres, and as having replaced them with new rationales for the
"Feres doctrine" barring FTCA claims by active servicemen and -
women. See C HEMERINSKY , supra, at 674-75 ("Interestingly, the
Court's explanation [for the Feres doctrine] has shifted over
time. Originally, in Feres, the Court emphasized that the
government could be held liable under the [FTCA] only for
activities that also are undertaken by private entities . . . .
But . . . the Supreme Court expressly discarded this limitation
on recovery under the act [in Indian Towing and Rayonier],
permitting suits even for activities done solely by the federal
government. . . . Subsequent to the Feres decision, the Court
began emphasizing a different rationale for precluding recovery
for injuries received incident to military service: the need to
preserve military discipline.").
43
of military duty." 19 Id. (quotation marks and ellipsis omitted). 1
These considerations are not present in the non-military context. 2
The case before us is thus more closely akin to Muniz than Feres. 3
In sum, it does not follow from the fact that immigration is a 4
quintessentially federal function that immigration detention is 5
without a private non-federal officer analogue. Even for alleged 6
torts occurring in quintessentially federal contexts, the 7
question remains whether analogous private liability exists under 8
state law -- and here, we conclude that it does. 9
For these reasons, we conclude that the district court 10
erred in finding that there was no private analogue to Liranzo's 11
claims. We express no view, however, as to Liranzo's argument 12
that he is entitled to a trial on the merits on remand. See 13
Pl.'s Br. 9, 14. We leave it to the district court to consider 14
whether, under the circumstances of this case, his action is 15

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44
subject to dismissal on the merits on motion to dismiss or for 1
summary judgment. 2
C. Liranzo's Fourth Amendment Claim 3
Liranzo has not raised any argument against the 4
district court's dismissal of his separate Fourth Amendment 5
claim. See Mem. & Order at 11. We therefore affirm the district 6
court's ruling in this respect. See Universal Church v. Geltzer, 7
463 F.3d 218, 229 (2d Cir. 2006) ("Generally[,] claims not raised 8
on appeal are deemed abandoned, at least when it is the appellant 9
who fails to do so."). 10
CONCLUSION 11
For the foregoing reasons, we affirm as to the district 12
court's dismissal of Liranzo's Fourth Amendment claim. We vacate 13
the district court's judgment insofar as it found an absence of 14
subject matter jurisdiction over Liranzo's FTCA claims and remand 15
for further proceedings in the district court. Because the 16
district court did not have the occasion to consider which 17
standard applies on the merits, the district court should 18
consider in the first instance on remand which federal standards 19
govern the determination of whether the government official's 20
actions here were privileged. 21

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