A Florida physician who became a casualty in the federal government’s war on drugs will get his day in court because the 11th U.S. Circuit Court of Appeals, reversing a federal district judge, held that via the 1974 amendments to the Federal Tort Claims Act (FTCA), the U.S. government waived sovereign immunity for claims of false imprisonment, false arrest and malicious prosecution in cases such as the doctor’s. Nguyen v. U.S., No. 07-12874.
Andrew Nguyen served as a combat physician in the South Vietnamese army and later was imprisoned as a U.S. spy by the North Vietnamese. He eventually made his way to the United States, where he secured his U.S. medical credentials and became the only licensed medical doctor in tiny Trenton, Fla. He became a U.S. citizen in 1986.
In March 2000, Nguyen’s medical office was raided by a Gilchrist County, Fla., sheriff’s deputy and U.S. Drug Enforcement Agency (DEA) agent Robert Yakubec. As part of a sting operation, the deputy arrested the 62-year-old physician, and Yakubec seized Nguyen’s DEA prescribing certificate. He was accused of unlawful distribution of a controlled substance for prescribing Valium and Lortab for an informant without first examining the woman.
Problem with the evidence
However, there was a problem with the prosecution’s case. The DEA’s own evidence — including audio tapes of the informant’s visits to Nguyen and the informant’s own statements — indicated that she had been examined every time she came to Nguyen’s office.
Prosecutors dropped the case, but the damage was done. Nguyen’s arrest had been publicized by local news media. The local pharmacy would not honor his prescriptions, insurance companies would not contract with him and he had to lay off employees.
Nguyen sued the deputy, the sheriff and — after amending his pleadings — the United States under 42 U.S.C. 1983 and 42 U.S.C. 1988. His lawsuit alleged violations of his rights under the Fourth and 14th amendments and Florida law. A jury assessed damages at $1.8 million against the sheriff and the estate of the late deputy.
U.S. District Judge Maurice Paul dismissed the federal government from the suit, holding that Yacubec’s actions were discretionary and thus fell under an exception to the U.S. government’s waiver of sovereign immunity under the FCTA, at 28 U.S.C. 1346(b).
Nguyen appealed, and the 11th Circuit saw it differently.
Reversing on Oct. 21, the 11th Circuit held that, due to the 1974 amendments to the FTCA at 28 U.S.C. 2680(h), the lower court’s application of the discretionary-function test was erroneous. In those 1974 amendments — passed by Congress after federal agents raided the wrong homes twice — the government waived sovereign immunity in cases of false arrest, false imprisonment and malicious prosecution.
In addition, the appellate court held that Paul erred in relying on Mesa v. U.S., 123 F.3d 1435 (11th Cir. 1997), in his discretionary-function analysis because the court was bound by the earlier 5th Circuit precedent, Brown v. U.S., 653 F.2d 196 (5th Cir. Aug. 10, 1981). It said that 5th Circuit cases decided before the 1981 split of the 11th Circuit from the 5th Circuit were binding precedent on the newly created court.
“When he was wrongly jailed by the government of Vietnam and its agents, Dr. Nguyen had no remedy but to flee from the country. As an American citizen though, he has a better remedy for that kind of abuse of government power. He sued,” the 11th Circuit said.
“[T]he proviso to § 2680(h) means what it says, means what canons of statutory interpretation indicate it does, and means what the Brown decision holds,” the court said.
Observers who litigate against the government, as well as those who work with the DEA, agreed with the 11th Circuit’s reversal of the lower court.
