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Estate of Belbachir v. United States

August 13, 2010

ESTATE OF HASSIBA BELBACHIR DECEASED, BY ABDELKADER RACHID BELBACHIR, ADMINISTRATOR, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Judge Phillip Reinhard

Magistrate Judge P. Michael Mahoney

MEMORANDUM OPINION AND ORDER

I. Introduction

This is a Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., case brought by the estate of Hassiba Belbachir alleging that officials, agents, or employees of the United States of America proximately caused the death of Ms. Belbachir through negligent actions or omissions. Hassiba Belbachir was a foreign national of Algerian descent who on March 8, 2005 was denied re-entry into the United States at O'Hare airport, taken into custody, and ultimately detained in the McHenry County Jail. On March 17, 2005, while in the custody of the United States, Ms. Belbachir committed suicide in her detention cell. The complaint alleges that agents of the United States Department of Homeland Security ("DHS"), Immigration and Customs Enforcement ("ICE"), and Office of Detention and Removal ("DRO") proximately caused Ms. Belbachir's death through direct negligent acts or omissions. Plaintiff further alleges that the United States engaged in conspiratorial acts constituting negligence in oversight, policy implementation, and training at the Broadview Service Staging Area and McHenry County Jail that proximately caused Ms. Belbachir's death.

II. Background

The United States moved to dismiss the case pursuant to Fed. R. Civ. P. 12(b)(6), arguing that the FTCA's contractor exception, 28 U.S.C. § 2671, and discretionary function exception, 28 U.S.C. § 2680(a), bar Plaintiff's claim. Judge Reinhard denied the United States' motion to dismiss while acknowledging two types of negligent acts or omissions alleged by Plaintiff: (1) that ICE agents who had contact with Ms. Belbachir failed to properly assess her, failed to communicate information necessary for her care, and inadequately screened her; and (2) negligence related to oversight of the detention facilities concerning suicide assessment, prevention, and intervention policies. Estate of Hassiba Belbachir v. United States, No. 08-C50193, at 2 (N.D. Ill. May 21, 2009) (Crt. Doc. 29). Judge Reinhard indicated Illinois tort law governs the issue of whether the breach of duties was the proximate cause of Ms. Belbachir's death and noted that proximate cause is generally an issue of fact. (Id.)

The United States then answered the complaint and discovery commenced in June, 2009. Plaintiff served its First Set of Interrogatories and Request for Production of Documents ("Request for Production") on September 30, 2009. Having received partial responses from the United States, Plaintiff, on December 9, 2009, formally requested that the United States produce Office of Inspector General employee Dan Young for a deposition. The parties exchanged letters and discovery responses between December, 2009, and April, 2010, in an effort to resolve outstanding discovery issues. In a letter dated April 26, 2010, the United States stated that Agent Young would not be produced for a deposition. (Pl's. Mot. Ex. C.) Plaintiff sent an additional letter to the United States regarding outstanding discovery issues on May 14, 2010. (Pl's. Mot. Ex. D.) Two weeks after a May 25, 2010 discovery status conference call with the court, Plaintiff had not received responses and filed a motion to compel regarding eleven distinct issues.

Plaintiff brought this Rule 37 motion to compel the United States to fully answer its outstanding discovery requests and produce deponent Dan Young ("Motion to Compel"). Rule 26(b) states "for good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." Fed. R. Civ. P. 26(b)(1). Requests for discovery are relevant if there is a reasonable possibility that the information sought would lead to relevant material. However, the court must limit discovery if it finds "the burden or expense of the proposed discovery outweighs its likely benefit." Fed. R. Civ. P. 26(b)(2)(C)(iii). The court must essentially conduct a balancing test weighing the value of the material sought against the burden of providing it. See Patterson v. Avery Dennison Corp., 281 F.3d 676, 681-82 (7th Cir. 2002). Taking into consideration the above factors, the court has evaluated Plaintiff's outstanding discovery requests as described in its Motion to Compel.

III. Plaintiff's Motion to Compel Discovery

a. Deposition of Dan Young

Plaintiff is proceeding concurrently with a case against McHenry County and numerous defendants in their individual capacities based on the same set of facts. Belbachir v. County of McHenry, et al., No. 06-CV-01392 (N.D. Ill. filed Mar. 14, 2006). It was in that case that Plaintiff first issued a subpoena seeking a deposition from Agent Young, which was denied by DHS pursuant to its Touhy regulations in a letter dated March 18, 2009. On June 18, 2009, the court consolidated this case into the County of McHenry case for discovery purposes only. On December 9, 2009, Plaintiff again requested that the DHS produce Agent Young for a deposition in relation to this case. The United States denied the request in its April 26, 2010 letter by providing responses with respect to each case. (Pl's. Mot. Ex. C.)

In Edwards v. U.S. Dep't of Justice, 43 F.3d 312, 316 (7th Cir. 1994), the Seventh Circuit held that subpoenas requesting information from an executive department are treated as administrative demands, and as such, are subject to judicial review with three procedural limitations. See also Barnett et al. v. Illinois State Bd. of Elections et al., No. 02-C2401, 2002 WL 1560013, 2002 U.S. Dist. LEXIS 12908, at *3--4 (N.D. Ill. July 2, 2002) (Reinhard, J.). First, the action has to be an [Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq.,] claim directed at the agency, the United States, or the employee thereof. Edwards, 43 F.3d at 316. "Second, the review action must be in federal court pursuant to 5 U.S.C. § 702, rather than in a state court that lacks jurisdiction." Id. "Finally, the government must not have waived its sovereign immunity." Id.

In Barnett, the district court made clear that a motion to compel directed against a federal agency satisfied the requirement from Edwards that the action be an APA claim. Barnett, 2002 U.S. Dist. LEXIS 12908, at *4. The court emphasized, "The bottom line in this case, no matter how the parties get there, is that the Department's refusal to comply with plaintiffs' subpoena, which was made pursuant to its Touhy regulations, is, as Edwards instructs, to be reviewed by the court under the standard set forth in the APA." Id. The court concluded that "a motion to compel directed against the Department does the job of bringing the APA 'action[]'... before the court equally as well as, if not better than, a separate APA claim against the Department."

Id. at *4--5 (internal citation omitted).

When the DHS denied Plaintiff's administrative demands, Plaintiff brought a motion to compel directed at the DHS. The subpoenas and discovery requests pertaining to Agent Young in both cases are undisputably administrative demands under Edwards and subject to the Administrative Procedures Act. Edwards, 43 F.3d at 316. Because the motion to compel is essentially a separate APA claim, it is a "dispositive motion" under Rule 72(b) that must be decided by the district court. Fed. R. Civ. P. 72(b). Under Rule 72(b), this court can only make a report and recommendation to the district court judge regarding the merits of the motion to compel. That said, the court proceeds to the merits.

Under the APA, this court may not reverse an agency's action unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]" 5 U.S.C. § 706(2)(A). "To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). "Although this inquiry into the facts is to be searching and careful, ...


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