A suit by a black Canadian woman who was twice arrested upon her entry into the United States may proceed to trial, said a panel of judges of the Ninth Circuit Court of Appeals. That decision reversed a ruling by the lower court dismissing her entire complaint.

The case began when Katusha Nurse was detained, searched, and arrested by U.S. Customs officials when she was attempting to board a plane in Vancouver, B.C., bound for Los Angeles. After the Vancouver search and arrest, Nurse was released and allowed to take her flight to LAX.

However, upon her arrival in California, Nurse was again searched and detained. According to Nurse, neither arrest was based on probable cause and the sole reason for each search and arrest was her race. She sued the United States and "30 unknown federal agents" for false arrest, invasion of privacy, and severe emotional distress.

Nurse's suit contained claims under the Federal Tort Claims Act (FTCA) as well as a Bivens action. The defendants moved for dismissal of the case claiming they were immune from suit under the FTCA because all of the complained-of conduct fell within the "discretionary function exception" to the FTCA, and that a Bivens action cannot be maintained against named defendants in their official capacities.

The district court initially dismissed the entire suit on the defendants' motion. Nurse appealed, and nearly the entire judgment of the district court was reversed.

In siding with Nurse, the 9th Circuit ruled that none of her claims should have been dismissed except for the Bivens claims against defendants in their official capacities. All of Nurse's FTCA claims should proceed to trial, said the court, because the complaint alleges that the actions of the airport agents were the result of policy-making decisions by the agents' superiors, who are also defendants in the suit. Read in a light most favorable to Nurse as is required in a motion to dismiss, the court found there was a genuine issue of material fact as to whether the supervisory defendants promulgated discriminatory rules and regulations.

In addition, the court said, many of Nurse's claims fell with the "law enforcement officer" proviso of the FTCA and thus were not protected by the discretionary function exception. See 28 U.S.C. § 2680(h).

Finally, the 9th Circuit held that a while a Bivens action could not be brought against individual defendants in their official capacities, the district court should not have dismissed the Bivens claims brought in defendants' individual capacities. The case was remanded back to the district court for further proceedings. See: Nurse v. United States, et al., 226 F.3d 996 (9th Cir. 2000).

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