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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
YANETT PEREZ PEREZ, 
Plaintiff, 
v. 
UNITED STATES OF AMERICA, et al., 
Defendants. 

 
ORDER GRANTING MOTION TO 
DISMISS 
 
(Doc. No. 4) 
 
Before the Court is the Motion to Dismi ss filed by Defendants United States of 
America and Dennis Boone (collectively, the “United States”). (Doc . No. 4.) The motion 
is fully briefed. (Doc. Nos. 4; 7–8; 11.) 
For the reasons set forth below, the Court GRANTS the United States’ motion to 
dismiss. (Doc. No. 4.) 
I. BACKGROUND 
A. Factual Background 
1. United States Customs and Border Protection Pursuit Policy 
In May 2023, the United States Customs and Border Protection (“CBP”) issued CBP 
Directive No. 4510-026A (the “2023 Pursuit Polic y”), which “establishe[d] guidelines to 
ensure U.S. Customs and Border Protec tion (CBP) conducts Emergency Driving and 
Vehicular Pursuits (ED-VPs) in accordance with law and in a manner that minimizes risks 
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to the public, officers/agents, other law enforcement, and vehicle occupants.” (Doc. No. 11 
at 5 (§ 1)
1; see generally id. at 4–31.) 
The 2023 Pursuit Policy was effective that month and “replace[d] CBP Directive 
No. 4510-026,” which is referenced herein as the “2021 Pursuit Policy.” (Id. at 5 (§ 3).) 
The 2023 Pursuit Policy “entrusts agents, o fficers, and their s upervisors with the 
ability to conduct pursuits based on their analysis of risk factors, encourages them to 
consider other available means of apprehending suspects, and reaffirms the overall law 
enforcement need to conduct pursuits.” ( Id. at 4.) However, the 2023 Pursuit Policy 
“restricts pursuits in certain circumstances th at are considered especially dangerous and 
also prohibits specific emergency driving procedures that have proven unsafe or 
ineffective.” (Id.) 
The 2023 Pursuit Policy states that CBP officers “may only conduct vehicle stops 
when there is reasonable suspicion to belie ve a violation of law has occurred that the 
Authorized Officer/Agent has the authority to enforce.” (Id. at 13 (§ 8.2).) Before initiating 
a stop, an officer must broadcast certain in formation to the CBP Communications Center, 
if the information is available. (Id. at 14 (§ 8.5).) After the broadcast, the officer can initiate 
a vehicle stop by “us[ing] their red and blue emergency lights, at a minimum, as a signal 
to the driver of the Subject Vehicle to pull off the roadway and stop their vehicle.” ( Id. 
(§ 8.3).) 
If the suspect vehicle fails to yield, the 2023 Pursuit authorizes the officer to “decide 
not to engage in a Vehicular Pursuit” ( id. (§  8.7)) or to initiate a pursuit if the vehicle 
“Failed to Yield when an Authorized Officer/Agent attempted to stop the vehicle for a 
violation of law that they have the authority to enforce AND The Authorized Officer/Agent 
has determined that a Vehicular Pursuit is Necessary and Objectively Reasonable” ( id. at 
16 (§ 8.24(3), (4))). “A Vehicula r Pursuit is considered Necessary when an Authorized 
 
1 Page citations refer to the pagination genera ted by the Case Management/Electronic Case Files 
system. 
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Officer/Agent concludes there is an immediate need to apprehend a subject as part of their 
enforcement duties based on the totality of the known facts and circumstances.” ( Id. 
(§ 8.25).) “A Vehicular Pursuit is consid ered Objectively Reasonable when the 
Governmental Interest .  . . in apprehending the subject(s) at that specific time clearly 
outweighs the Foreseeability of Risk to the public, officers/agents, other law enforcement, 
and vehicle occupants.” (Id. at 17 (§ 8.26).) 
“When determining Governmental Interest , the Authorized Officer/Agent shall 
consider: (1) the severity of the crime at issue, not including the mere act of fleeing as the 
crime at issue, and (2) whether the subject poses an Imminent Threat to the safety of the 
officers/agents or others, not including reckless driving in an attempt to evade arrest.” (Id. 
at 7–8 (§ 6.16).) 
The “Foreseeability of Risk” is the “degree to which a reasonable officer/agent in a 
given situation should know that a specific harm might result from the actions being 
performed and the circumstances present.” ( Id. at 7 (§  6.15).) In assessing the 
Foreseeability of Risk, an officer must consider the “Pursuit Risk Factors.” (Id.) These 
may include but are not limited to: 
(1) if the speed or the erratic, dangerous, or unlawful driving nature of the 
Subject Vehicle and/or other nearby moving vehicles contributes to 
unsafe operation, loss of control, or an increased likelihood of injuries 
resulting from a collision; 
(2) if the Subject Vehicle is traveling towards areas with dense traffic or 
intersections that would increase the chance of collision with 
bystanders, other vehicles, or other objects; 
(3) if the nature of the area is likely to create unnecessary elevated risks to 
the public at large (residential, co mmercial, presence of pedestrian 
traffic); 
(4) if weather conditions or lighting might impair visibility or increase the 
risk that vehicles may lose traction/control; 
(5) if road condit ions (curves, lanes, bridges, unpaved roads, asphalt 
condition, etc.) increase the risk that vehicles may lose control and/or 
impact bystanders, other vehicles, or other objects; 
(6) if the Subject Vehicl
e appears to be an Overloaded Vehicle, creating 
unsafe handling characteristics; 
(7) if there is reason to believe there are Unrestrained Occupants within the 
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Subject Vehicle or occupants within areas of the Subject Vehicle that 
were not intended for passenger transport; [and] 
(8) if the distance between the pursuing Authorized Officer/Agent and the 
fleeing vehicle is so great that further efforts would be futile or require 
the Vehicular Pursuit to continue for an unreasonable time and/or 
distance. 
 
(Id. at 9 (§ 6.31).) 
“Governmental Interest and Foreseeability of Risk must be evaluated at the time the 
Authorized Officer/Agent chooses to undertak e, continue, or Terminate the Vehicular 
Pursuit.” (Id. at 17 (§ 8.27); see also id. at 7–8 (§ 6.16).) 
After an officer initiates a pur suit, he “must notify a Purs uit Supervisor as soon as 
feasible during a Vehicular Pursuit.” ( Id. at 18 (§  8.34); see also id. at 22 (§  8.55).) The 
officer “will communicate the basis for the Vehicular Pursuit and an assessment of Pursuit 
Risk Factors as soon as pract icable to a supervisor.” ( Id. at 18 (§  8.34.1).) “If a Pursuit 
Supervisor has not affirmatively authorized the continuation of the Vehicular Pursuit after 
being notified and given an opportunity to assess the situation, the engaging Officer/Agent 
shall Terminate the pursuit.” (Id. (§ 8.38).) 
While a pursuit is ongoing, the pursuing officer “shall continually assess the Pursuit 
Risk Factors and other considerations.” ( Id. (§  8.40).) The officer “may Terminate the 
Pursuit at any time, for any reason, without supervisory approval.” (Id. at 19 (§ 8.43); see 
also id. at 5 (§  4.3).) However, the officer “shall Te rminate a Vehicular Pursuit when the 
danger to the publi c
, the officer/agent, othe r law enforcement, or vehicle occupants 
outweighs the immediate need to apprehend the subject.” (Id. at 18 (§ 8.41).) Additionally, 
an officer “will immediately Terminate a Vehicular Pursuit when directed by a supervisor.” 
(Id. at 19 (§ 8.44).) 
The 2023 Pursuit Policy states that “[m]andatory compliance with the newly revised 
training standards and operational procedures will be required following the completion of 
[its] phased implementation roll-out on May 1, 2023.” (Id. at 4; see also id. at 29 (§ 10).) 
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2. The Collision 
On the morning of October 22, 2024, a CB P agent observed a silver Infiniti sedan 
(the “Infiniti”) leaving an area where “a group of individuals” were observed “climbing the 
international border fence.” (Doc. No. 1 ¶¶  50–51.) The Infiniti collided with a CBP 
vehicle, sustaining some damage to its passenger side, and fled. (Id. ¶¶ 51–52.) 
Later that day, around 2:15 p.m., CBP officials observed two individuals, including 
Jesus Atenco Perez (“Perez”), climbing over the border fence. ( Id. ¶  54.) The two 
individuals were picked up by the Infiniti, which was being driven by Sergio Josue 
Palomera (“Palomera”). (Id. ¶¶ 11, 55.) 
Defendant Dennis Boone (“Agent Boone”) responded to the scene. (Id. ¶ 56.) Agent 
Boone determined that the Infiniti matched the description of the vehicle that collided with 
a CBP vehicle earlier that morning. ( Id.) Based on this determ ination, Agent Boone 
concluded that there was a need to stop the Infiniti. (Id. ¶ 57.) 
At approximately 2:19 p.m., Agent Boone activated his vehicle’s emergency lights 
and siren to stop the Infiniti. ( Id. ¶¶ 11, 13.) However, Palomera did not stop driving. ( Id. 
¶ 13) Instead, Palomera “continu[ed driving] west on [State Route 905 (“SR 905”)] at 
speeds exceeding 80 [miles per hour (“mph”)], driving erratically with abrupt lane changes 
and weaving through traffic.” (Id. ¶ 13.) 
During this time, a Caltrans vehicle was parked on the shoulder of SR 905 and 
partially obstructing a lane of traffic. (Id. ¶ 14.) 
Between 2:19 p.m. and 2:20 p.m., Agent Boone initiated a pursuit of the Infiniti. (Id. 
¶ 12; see also id. ¶¶  11, 13, 20.) Agent Boone “initiate d the pursuit based solely on a 
suspicion of a mism
atched license plate.” ( Id. ¶ 30.) Agent Boone was also “[m]otivated 
by the [Infiniti’s] earlier evasion and collision with a Border Patrol vehicle” and so 
“exhibited heightened agitation a nd determination to apprehend the silver Infiniti at all 
costs.” (Id. ¶ 57.) 
During the pursuit, Agent Boone drov e “at speeds exceeding 90 mph.” ( Id. ¶ 32.) 
The pursuit reached “speeds exceeding 110 mph.” (Id. ¶  58.) Agent Boone “failed to 
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communicate critical details of the pursuit to his supervisors or the Border Patrol’s dispatch 
center.” (Id. ¶ 36.) 
At approximately 2:20 p.m., the Infiniti crashed into the Caltrans vehicle at a speed 
of 85 mph. (Id. ¶¶ 20, 46.) The Infiniti flipped multiple times and ejected Perez. (Id. ¶ 46.) 
Agent Boone terminated the pursuit. (Id. ¶ 20.) 
At approximately 2:25 p.m., emergency me dical responders arrived at the scene of 
the collision, but could not stabilize Perez’s condition. ( Id. ¶  48.) They took Perez to 
Scripps Mercy Hospital, where he was pronounced dead at 3:15 p.m. (Id.) 
Agent Boone’s actions allegedly violated the 2021 Pursuit Policy. ( Id. ¶¶ 3, 15, 17, 
24, 31, 33, 36, 58–59.) Agent Boone’s supervisors’ actions also did not comply with the 
2021 Pursuit Policy. ( Id. ¶¶ 18, 25, 61.) At the time of th e collision, Agent Boone had 
allegedly “failed to complete the mandatory biennial refresher training on pursuit policies 
in 2024.” (Id. ¶ 42.) 
B. Procedural Background 
Around November 27, 2024, Plaintiff Yanett Perez Perez (“Perez Perez”), Perez’s 
mother, filed an administrative claim with the FTCA, which was denied. (Id. ¶ 27.) 
On July 17, 2025, Perez Pe rez initiated this Action bot h individually and as the 
representative of Perez’s estate. (See generally id.; see also id. ¶¶ 7, 49.) Perez Perez alleges 
four causes of action. 
First, Perez Perez claims that Agent Boone violated Perez’s Fourth Amendment civil 
rights by initiating the high-speed pursuit and causing the fatal collision, and is accordingly 
liable for th
e violation under Bivens v. Six Unknown Named Agents of the Federal Bureau 
of Narcotics (“Bivens”), 403 U.S. 388 (1971). (Doc. No. 1 ¶¶ 63–70.) 
Second, she contends that Agent Boone also violated Perez’s Fourteenth 
Amendment civil rights by initiating the high- speed pursuit and is liable for the violation 
under Bivens, 403 U.S. 388. (Doc. No. 1 ¶¶ 71–78.) 
Third, Perez Perez asserts that the United States is liable for Perez’s wrongful death 
pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S. C. §§ 1346(b), 2671. (Doc. No. 
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1 ¶¶ 79–84.) In particular, Perez Perez alleges that Agent Boone negligently (1) initiated 
the pursuit and (2) continued the pursuit. (Id. ¶ 80.) Additionally, the United States “failed 
to adequately train or supervise [Agent] Boone on vehicle pursuit policies.” (Id. ¶ 81.) 
Fourth, Perez Perez avers that the United States is liable for Agent Boone’s negligent 
acts under the FTCA, 28 U.S.C. §§ 1346(b), 2671. (Doc. No. 1 ¶¶ 85–90.) 
The United States has moved to dismiss all four causes of action pursuant to Rules 
12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure. (Doc. No. 4.) 
This Order follows. 
II. LEGAL STANDARD 
A. Federal Rule of Civil Procedure 12(b)(1) 
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) tests whether 
the court has subject matter jurisdiction. Lack of Article III standing requires dismissal for 
want of subject matter jurisd iction under Rule 12(b)(1). See Nw. Requirements Utils. v. 
FERC, 798 F.3d 796, 807 n.9 (9th Cir. 2015). 
“A Rule 12(b)(1) jurisd ictional attack may be facial or factual.” Safe Air for 
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger 
asserts that the allegations contained in a complaint are insufficient on their face to invoke 
federal jurisdiction.” Id. The court “resolves a facial attack as it would a motion to dismiss 
under Rule 12(b)(6): Accepting the plaintiff’s allegations as true and drawing all 
reasonable inferences in the plaintiff’s favor, the court determines whether the allegations 
are sufficient as a legal matter to invoke the court’s jurisdiction.” Leite v. Crane Co., 749 
F.3d 1117, 1121 (9th Cir. 2014) (citation omitted). 
“[I]n a factual attack,” on the other hand, “the challenger disputes the truth of the 
allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air, 373 
F.3d at 1039. In resolving such an attack, un like a motion to dismiss under Rule 12(b)(6), 
a court “may review evidence beyond the co mplaint without convert ing the motion to 
dismiss int
o a motion for summary judgment.” Id. (citation omitted). Moreover, the court 
“need not presume the truthfulness of the plaintiff’s allegations.” Id. Once the defendant 
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has moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the 
plaintiff bears the burden of estab lishing the court’ s jurisdiction. See Chandler v. State 
Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). 
B. Federal Rule of Civil Procedure 12(b)(6) 
A motion to dismiss under Rule 12(b)(6) test s the legal sufficiency of a plaintiff’s 
complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “[A] court may dismiss 
a complaint as a matter of law for (1) lack of cognizable legal theory or (2) insufficient 
facts under a cognizable legal claim.” SmileCare Dental Grp. v. Delta Dental Plan of Cal., 
Inc., 88 F.3d 780, 783 (9th Ci r. 1996) (citation and intern al quotation marks omitted). 
However, a complaint will survive a motion to dismiss if it contains “enough facts to state 
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 
(2007). In making this determ ination, a court reviews the contents of the complaint, 
accepting all factual allegations as true and drawing all reasonable inferences in favor of 
the nonmoving party. See Cedars-Sinai Med. Ctr. v. Na t’l League of Postmasters of U.S., 
497 F.3d 972, 975 (9th Cir. 2007). 
Notwithstanding this deference, the reviewing court need not accept legal 
conclusions as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for 
a court to assume “the [pla intiff] can prove facts that [he or she] has not alleged.” Assoc. 
Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters , 459 U.S. 519, 526 
(1983). However, “[w]hen there are well-pleaded factual allegations, a court should assume 
their veracity and then determine whether they plausibly give rise to an entitlement to 
relief.” Iqbal, 556 U.S. at 679. 
III. DISCUSSION 
A. Perez Perez Has Failed to Properly Oppose the United States’ Motion to 
Dismiss. 
 
Preliminarily, the Court must strike Per ez Perez’s opposition to the United States 
Motion to Dismiss (Doc. No. 7.) 
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Pursuant to Federal Rule of Civil Procedure 11(a), “[e]very . . . paper must be signed 
by at least one attorney of record in the attorney’s name . .  . . The court must strike an 
unsigned paper unless the omission is promptly corrected after being called to the 
attorney’s or party’s attention.” 
On October 7, 2025, counsel for Perez Perez filed an unsigned opposition to the 
motion to dismiss. (Doc. No. 7.) 
On that same day, the Clerk of Court notif ied counsel for Perez Perez that the filed 
document was not signed and instructed couns el to withdraw the unsigned document and 
to refile it with a signature. (Id.) 
Counsel for Perez Perez has not withdrawn or refiled the opposition. 
Accordingly, the Court “must strike [the] unsigned paper” because the omission has 
not been “promptly corrected after being called to the attorney’s . . . attention.” Fed. R. Civ. 
P. 11(a). The Court thus STRIKES the unsigned opposition. Id. Because the United States’ 
reply addresses arguments cont ained therein, the Court will retain access to the unsigned 
opposition in the Case Management/Electronic Case Files system for ease of reference. 
Having stricken the unsigned opposition, the Court notes that in this District, a 
failure to properly oppose a mo tion “may constitute a consent to the granting of a motion 
or other request for ruling by the Court.” CivLR 7.1.f.3.c. Nevertheless, the Court declines 
to treat the unsigned response as a consent to the granting of the motion to dismiss. See 
CivLR 1.1.d. The Court thus proceeds to consider the motion’s merits. 
B. Counts One and Two Fail to State a Claim on Which Relief Can be 
Granted. 
 
In Counts One and Two, Perez Perez alleges Bivens claims for alleged violations of 
the Fourth and Fourteenth Amendments. (See Doc. No. 1 ¶¶ 63–78.) 
Some plaintiffs may seek money damages for alleged constitutional violations under 
an implied cause-of action theory recognized in Bivens. See Ziglar v. Abbasi, 582 U.S. 120, 
130–32 (2017). However, Bivens relief is available only in extremely limited 
circumstances. In Bivens itself, the Supreme Court “recognized an implied cause of action 
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against [Federal Bureau of Na rcotics] officials for Fourth Amendment violations.” 
Marquez v. Rodriguez, 81 F.4th 1027, 1029 (9th Cir. 2023); see also Bivens, 403 U.S. at 
397. In the subsequent decades, the Supreme Court has extended Bivens relief in only two 
other circumstances. Marquez, 81 F.4th at 1029. First, “[i]n Davis v. Passman, 442 U.S. 
228 (1979), the Court pe rmitted an administrative assistan t to seek a damages remedy 
against her former employer, a congressman, for alleged sex discrimination in violation of 
the Fifth Amendment.” Marquez, 81 F.4th at 1029. Second, “in Carlson v. Green, 446 U.S. 
14 (1980), the Court recognized a Bivens r e m e d y i n a n a c t i o n brought by a federal 
prisoner’s estate contending that prison officials infringed the Eighth Amendment’s Cruel 
and Unusual Punishment Clause by failing to provide adequate medical treatment.” 
Marquez, 81 F.4th at 1029. 
More recently, the Supreme Court “has made clear that expanding the Bivens remedy 
is now a ‘disfavored’ judicial activity.” Abbasi, 582 U.S. at 135 (quoting Iqbal, 556 U.S. 
at 675). Accordingly, courts now apply a two-step test to determine whether a Bivens 
remedy is available. “First, we ask whether the case presents ‘a new Bivens context’—i.e., 
is it ‘meaningful[ly]’ different from the three cases in wh ich the Court has implied a 
damages action.” Egbert v. Boule, 596 U.S. 482, 492 (2022) (quoting Abbasi, 582 U.S. at 
139–40). Meaningful differences can include 
the rank of the officers involved; the constitutional right at issue; the 
generality or specificity of the official action; the extent of judicial guidance 
as to how an officer should respond to the problem or emergency to be 
confronted; the statutory or other le gal mandate under which the officer was 
operating; the risk of disruptive intrusion by the Judiciary into the functioning 
of other branches; or the presence of potential special factors that previous 
Bivens cases did not consider. 
 
Abbasi
, 582 U.S. at 140. It may also include a “new category of defendants.” Corr. Servs. 
Corp. v. Malesko, 534 U.S. 61, 68 (2001). 
If there is a new context or a meaningful difference, “a Bivens remedy is unavailable 
if there are ‘special factors’ indicating that the Judiciary is at least arguably less equipped 
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than Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.’” 
Egbert, 596 U.S. at 492 (quoting Abbasi, 582 U.S. at 136). 
No Bivens remedy is available for Perez Perez’s claims. 
First, Counts One and Two arise in a ne w context. For both Counts, Agent Boone 
and the Doe Defendants belong to a “new category of defendants.” Malesko, 534 U.S. at 
68. As CBP officials, they are not Fe deral Bureau of Narcotics officials, cf. Bivens, 403 
U.S. at 389; congresspersons, cf. Davis, 442 U.S. at 230; or prison officials, cf. Carlson, 
446 U.S. at 16. Additionally, the fact that a CBP policy purportedly governed Agent 
Boone’s and his supervisor’s conduct presents a distinction between this case and past 
precedent that “satisf[ies] the [Supreme] Court’s permissive test for what makes a context 
‘new.’” Quintero Perez v. United States, 8 F.4th 1095, 1104–05 (9th Cir. 2021). 
Second, special factors counsel against extending Perez Perez any Bivens relief. In 
determining whether special factors exist, “t he inquiry must concentrate on whether the 
Judiciary is well suited, absent congressional action or instruction, to consider and weigh 
the costs and benefits of allowing a damages action to proceed.” Abbasi, 582 U.S. at 136. 
[T]he decision to recognize a damages remedy requires an assessment of its 
impact on governmental operations syst emwide. Those matters include the 
burdens on Government employees who are sued personally, as well as the 
projected costs and consequences to the Government itself when the tort and 
monetary liability mechanisms of the legal system are used to bring about the 
proper formulation and implementation of public policies. These and other 
considerations may make it less proba ble that Congress would want the 
Judiciary to entertain a damages suit in a given case. 
 
Id. at 136–37. Additionally, “if there is an alternative remedial structure present in a certain 
case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action.” 
Id. at 137. Such structures can include “administ rative, statutory, equ
itable, and state law 
remedies.” Vega v. United States, 881 F.3d 1146, 1154 (9th Cir. 2018). 
Here, an alternative remedial struct ure is available for both Counts. As Egbert 
explained, Customs and Border Patrol regulations require the agency to “investigate 
‘[a]lleged violations of the standards for en forcement activities’ a nd accept grievances 
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from ‘[a]ny persons wishing to lodge a comp laint.’” 596 U.S. at 497 (quoting 8 C.F.R. 
§§ 287.10(a)–(b)). Indeed, Perez Perez filed such a claim with Customs and Border Patrol 
around November 27, 2024. (Doc. No. 1 ¶  27.) Such a remedy makes Bivens relief 
unavailable. Egbert, 596 U.S. at 497–98 (citing Malesko, 534 U.S. at 74). 
Because a Bivens remedy is not available for either Count One or Two, Counts One 
and Two are DISMISSED WITH PREJUDICE. 
C. The Court Lacks Subject Matter Juri sdiction Over Counts Three and 
Four. 
 
1. Sovereign immunity and the FTCA. 
“The United States, as sovereign, is immune from suit save as it consents to be sued.” 
United States v. Sherwood, 312 U.S. 584, 586 (1941). “A waiver of the Federal 
Government’s sovereign immunity must be unequivocally expr essed in statutory text and 
will not be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citations omitted). 
“Moreover, a waiver of the G overnment’s sovereign immunity will be strictly construed, 
in terms of its scope, in favor of the sovereign.” Id. (citations omitted). 
“One important immunity waiver that allows suits against the federal government is 
the FTCA.” Lam v. United States , 979 F.3d 665, 671–72 (9th Cir. 2020). “The FTCA 
provides a limited waiver of the sovereign immunity of the United States for torts 
committed by federal employees acting with in the scope of their employment.” Nurse v. 
United States, 226 F.3d 996, 1000 (9th Cir. 2000) (citation omitted). “Under the FTCA, 
the United States may be held civilly liable for the torts of its employees ‘in the same 
manner and to the same extent as a private individual under like circumstances.’” Id. 
(quoting 28 U.S.C. § 2674). 
“To succeed in district court under the FT CA, a plaintiff must have suffered an 
injury, a federal employee must have caused th at injury, and state la w must offer a legal 
theory that makes that empl oyee’s negligence actionable.” Lam , 979 F.3d at 672. 
“However, the FTCA’s waiver of immun ity is limited by a number of statutory 
exceptions.” Nurse, 226 F.3d at 1000 (citing 28 U.S.C. §  2680). If the plaintiff’s cause of 
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action falls within one of the exceptions, the district court lacks subject matter jurisdiction. 
Id. 
The burden of establishing a waiver fa lls upon the party asserting jurisdiction. 
Prescott v. United States, 973 F.2d 696, 701 (9th Cir. 1992). Once a plaintiff has identified 
a waiver, “the United States bears the burden of proving the applicability of one of the 
exceptions to the FTCA’s general waiver of immunity.” Id. at 702. 
Pursuant to 28 U.S.C. §  2680(a), the FTCA’s waiver of sovereign immunity “shall 
not apply” to “[a]ny claim .  . . based upon the exercise or pe rformance or the failure to 
exercise or perform a discretionary function or duty on the part of a federal agency or an 
employee of the Government, whether or not the discretion involved be abused.” 
Courts apply a two-part test to determine if this “Discretionary Function Exception” 
is applicable. First, a court must consider “whether the alleged wrongful conduct violated 
a specific and mandatory regulation or statute.” Bibeau v. Pac. Nw. Rsch. Found., Inc., 339 
F.3d 942, 945 (9th Cir. 2003) (citing United States v. Gaubert , 499 U.S. 315, 324–25 
(1991)). “If so, the conduct is out side the realm of discretion.” Id. (citation omitted). 
Second, “[i]f there is no mandatory regulation or statute involved, we then ask whether the 
conduct was susceptible to being based upon social, economic, or political policy.” Id. 
(citations omitted). “[T]he discretionary function exception insulates the Government from 
liability if the action challenged in the case involves the permissible exercise of policy 
judgment.” Berkovitz v. United States, 486 U.S. 531, 537 (1988). 
2. The 2021 Pursuit Policy does not apply. 
Perez Perez alleges the FTCA waives so vereign immunity and renders the United 
States liable for Counts Three and Four. ( See Doc. No. 1 ¶¶  79, 84, 90.) In response, the 
United States has invoked the FTCA’s Discretionary Function Exception to assert that this 
Court lacks jurisdiction because the 2023 Pu rsuit Policy vested Agent Boone and his 
supervisors with discretion over how to pursue suspects and how to train CBP agents. (See, 
e.g., Doc. No. 4-1 at 12–15 (citing 28 U.S.C. § 2680(a).) 
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There appears to be some confusion over what CBP policy may have governed 
Agent Boone’s decisions to initiate and to maintain a high-speed pursuit, and his 
supervisor’s oversight of a high-speed pursui t. On the one hand, Perez Perez alleges that 
Agent Boone’s actions violated “CBP Directive 4510-026,” which is the 2021 Directive. 
(See, e.g., Doc. No. 1 ¶  15.) On the other, the United States focuses on the 2023 Pursuit 
Policy and what it authorizes. (See Doc. No. 4-1 at 7–8, 13–15.) 
Perez Perez’s references to the 2021 Directive appear to be intentional. The 
Complaint repeatedly cites “CBP Directiv e 4510-026” and does not reference “CBP 
Directive 4510-026A”—the 2023 Pursuit Policy—at any point. (See generally Doc. No. 1.) 
Furthermore, Perez Perez’s co ntentions regarding the purport ed contents of the CBP’s 
governing directive do not align with the 2023 Pursuit Policy’s text. For example, Perez 
Perez contends that “CBP Directive 4510-026, Section 5.2” “mandates that pursuits be 
initiated only when the need for immediate apprehension outweighs the risks to public 
safety.” (Id. ¶ 31.) However, Section 5.2 of the 2023 Pursuit Policy states in full “18 U.S.C. 
§ 758, High Speed Flight from an Immigr ation Checkpoint.” (Doc. No. 11 at 6 (§  5.2).) 
Perez Perez also claims that “CBP Directiv e 4510-026, Section 6.1” “requires agents to 
maintain a safe distance to avoid pressuring the suspect into increasingly dangerous 
maneuvers.” (Doc. No. 1 ¶  33.) Section 6.1 of the 2023 Pursuit Policy instead defines 
“apprehension efforts” as “[a]ny attempted se izure of a Subject Vehicle by Authorized 
Officers/Agents accomplished through the use of Activated Emergency Equipment or other 
show of authority.” (Doc. No. 11 at 6 (§  6.1).) The section does not require any pursuit 
procedures, much less a pursuit distance. (See id.) Thus, the Court concludes Perez Perez 
intended to rely on the 2021 Pursuit Policy. 
That reliance is misplaced. When the CBP issued the 2023 Pursuit Policy, it 
“replace[d]” the 2021 Pursuit Policy. (Id. at 5 (§ 3).) The 2023 Pursuit Policy was effective 
as of “May 2023.” ( Id.) The underlying pursuit and collision in this matter occurred on 
October 22, 2024. (See Doc. No. 1 ¶ 2.) Accordingly, the pursuit and collision took place 
after the 2023 Pursuit Policy became effectiv e and replaced the 2021 Pursuit Policy. 
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(Compare Doc. No. 11 at 5, with Doc. No. 1 ¶ 2.) In turn, the 2021 Pursuit Policy did not 
apply to Agent Boone’s or his supervisors’ actions at the time of the underlying events. 
Furthermore, the United States’ arguments based on the 2023 Pursuit Policy take 
some precedence because it is the United St ates that “bears the burden of proving the 
applicability of one of the exceptions to the FTCA’s general waiver of immunity.” Prescott, 
973 F.2d at 702. 
The Court accordingly turns to what, if anything, the 2023 Pursuit Policy required 
of Agent Boone and his supervisors. 
3. The 2023 Pursuit Policy granted Agent Boone discretion to initiate 
and terminate the pursuit. 
 
Perez Perez contends that CBP policy prohibited Agent Boone from initiating the 
pursuit and, subsequently, required Agent B oone to terminate the pursuit. (Doc. No. 1 
¶¶ 15, 17.) In particular, Perez Perez points to the 2021 Pursuit Policy to assert that Agent 
Boone was prohibited from initiating the pursuit. (Id. ¶ 15.) Perez Perez additionally claims 
that the risks to public safety from the pursu it outweighing the need to stop the Infiniti 
meant that Agent Boone was required to terminate the pursuit. (Id. ¶ 17.) 
Perez Perez is incorrect. 
In analyzing the Discretionary Function Exception defense, the Court must “look at 
all the relevant policies in thei r totality and how they fit togeth er to determine if they are 
discretionary or mandatory.” Lam, 979 F.3d at 676. Notably, “the presence of a few, 
isolated provisions cast in mandatory language does not transform an otherwise suggestive 
set of guidelines into binding agency regulations.” Sabow v. United States, 93 F.3d 1445, 
1453 (9th Cir. 1996). “The use of a few mandatory words lik e ‘shall’ does not create a 
mandatory policy if the policy otherwise allows for discretion.” Lam, 979 F.3d at 677. 
Against this backdrop, the applicable provisions of the 2023 Pursuit Policy provide 
a “suggestive set of guidelines” and not “binding agency regulations.” Sabow, 93 F.3d at 
1453. On initiating a pursuit, the Commissione r’s Message that accompanies the 2023 
Pursuit Policy explains that the policy’s pur pose is to provide “a clear framework for 
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weighing the risks associated with vehicular pursuits (e.g., the dangers posed to the public), 
against the law enforcement benefit or need.” (Doc. No. 11 at 4 (emphasis added).) In doing 
so, the 2023 Pursuit Policy “entrusts agents, officers, and their supervisors with the ability 
to conduct pursuits based on their analysis of risk factors.” ( Id. (emphasis added).) The 
2023 Pursuit Policy goes on to state that “Aut horized Officers/Agents are responsible for 
their decisions and actions related to Vehicular Pursuits at all times and in under [ sic] all 
circumstances when engaged in a Pursuit.” (Id. at 16 (§ 8.23).) While engaged in a pursuit, 
the agent “shall continuously a ssess Pursuit Risk Factors.” (Id. at 17 (§§  8.28, 8.31); see 
also id. (§ 8.29) (identifying eight “Pursuit Risk Factors” that the agent “shall consider . . . 
to determine Foreseeability of Risk”).) As for terminating a pursuit, the 2023 Pursuit Policy 
states that “Authorized Officers/Agents enga ged in a Vehicular Pursuit shall continually 
assess the Pursuit Risk Factors and othe r considerations.” (Doc. No. 11 at 18 (§  8.40).) 
Further, agents “may Terminate the Pursuit at any time, for any reason, without supervisory 
approval.” (Id. at 19 (§ 8.43).) 
The foregoing language clearly calls upon CB P agents to decide whether to initiate 
or terminate a pursuit. In doing so, the 2023 Pursuit Policy vests CBP agents with 
substantial discretion to decide whether to initiate or terminate a pursuit. See Lam, 979 F.3d 
at 678–79. 
This conclusion is consistent with other courts’ recognition that prior iterations of 
CBP’s pursuit policies granted CBP agents discre tion in determining whether to initiate a 
pursuit. For instance, in Herrera v. United States , No. 09-cv-00756-JM-WMc, 2010 WL 
4236974, *3 (S.D. Cal. Oct. 21, 2010 ), the court explained that “[t]he often co
mplex 
circumstances and variables surrounding a pursu it necessarily require the agent or agents 
to continually analyze rapidly changing circumstances .  . . when deciding to commence, 
continue, or terminate a pursuit .” The court noted that although “an agent is required to 
consider eleven Safety Factors .  . . in determining whether to commence, continue, or 
terminate a pursuit,” there were no “objective ha rd and fast rules to determine when to 
conduct or continue a pursuit of a fleeing vehicle.” Id. Accordingly, the court “conclude[d] 
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that the Pursuit Policy vests s ubstantial discretion in Border Patrol Agents and that the 
Pursuit Policy provides no specific directives that mandate specific action when pursuing 
fleeing vehicles.” Id. Similarly, Gallegos Reyes v. United States, No. 5:19-cv-00902-OLG, 
2020 WL 248688, *2–3 (W.D. Tex. Jan. 15, 2020), recognized that the then-applicable 
policy “explicitly contemplate[d] an element of choice as to how [CBP agents] should 
engage in emergency driving and pursuit.” Most recently, a district court held that “agents 
possess discretion in deciding whether to pursue” under the 2021 Pursuit Policy. Carrillo 
v. United States , No. 2:25-cv-00219-KWR-DLM, 2025 WL 3187389, *4 (D.N.M. Nov. 
14, 2025), appeal docketed, No. 25-2158 (10th Cir. Dec. 19, 2025). 
Thus, the Court must conclude that Agen t Boone had discreti on to initiate and 
terminate the pursuit unless Perez Perez can identify specific provisions of the 2023 Pursuit 
Policy that prohibited the initiation of the pursuit or required its termination. See Berkovitz, 
486 U.S. at 536. Perez Perez does not. 
On the initiation of the pursuit, Perez Perez contends that Agent Boone was 
prohibited from initiating the pursuit because he “failed to adequately consider” certain 
pursuit risk factors. (Doc. No. 1 ¶  16.)
2 The problem with this contention is that it 
necessarily concedes that Agent Boone had discretion to initiate the pursuit because he had 
to weigh whether the risks of a pursuit outweighed the need to stop the Infiniti. See Lam, 
979 F.3d at 679–80 (holding an official had discretion where it was “up to the Senior Park 
Ranger to use his judgment in carrying out the [policy] requirements while weighing policy 
choices, such as costs and available volunt eers.”). Whether Agent Boone’s weighing and 
considerations were adequate is irrelevant. “[A]t step one of the discretionary-function-
 
2 Perez Perez does not allege that any of the circumstances in which the 2023 Pursuit Policy prohibits 
a pursuit applies. (Compare Doc. No. 1, with Doc. No. 11 at 20 (§ 8.47).) 
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exception analysis, all that matters is that there was, in fact, discretion.” Chadd v. United 
States, 794 F.3d 1104, 1111 (9th Cir. 2015) (citing Gaubert, 499 U.S. at 322).
3 
Turning to whether Agent Boone should ha ve terminated the pursuit, Perez Perez 
claims that Agent Boone was required to terminate the pursuit because the “risks to public 
safety . . . outweighed the need for imme diate capture.” (Doc. No. 1 ¶  17.) Although it is 
true that the 2023 Pursuit Policy states that “Authorized Officers/Agents shall Terminate a 
Vehicular Pursuit when the danger to the public, the officer/agent, other law enforcement, 
or vehicle occupants outweighs the immedi ate need to apprehend the subject,” the 
surrounding context makes cl ear that this language does not create a mandatory 
requirement. (Doc. No. 11 at 18 (§  8.41).) In requiring a pursuing agent to assess whether 
a pursuit is warranted by weighing the risks of a pursuit against the need to apprehend a 
suspect, “the very nature of [this 2023 Pursuit Policy] requirement[] allows the exercise of 
. . . judgment and discretion.” Lam, 979 F.3d at 679. In turn, this use of “mandatory-
sounding language such as ‘shall’ does not ove rcome the discretionary character of the” 
2023 Pursuit Policy. Gonzales v. United States, 814 F.3d 1022, 1030 (9th Cir. 2016). 
Accordingly, Agent Boone had discretion to initiate and to terminate his pursuit. 
4. Agent Boone’s decisions whether to initiate and terminate the 
pursuit are susceptible to policy analysis. 
 
The Court turns to the second part of its inquiry, “whether the conduct was 
susceptible to being based upon social, economic, or political policy.” Bibeau, 339 F.3d at 
945. “When established governm ental policy, as expresse d or implied by statute, 
regulation, or agency guidelines, allows a Government agent to exercise discretion, it must 
be presumed that the agent’s acts are grounded in policy when exercising that discretion.” 
Gaubert, 499 U.S. at 324. 
 
3 Additionally, insofar as the 2021 Pursuit Policy did not apply to Agen t Boone’s pursuit of the 
Infiniti, Perez Perez’s claims that Agent Boone and his supe rvisors failed to comp ly with other alleged 
aspects of the superseded policy lack merit. (See, e.g., Doc. No. 1 ¶¶ 17, 18, 31, 33, 36, 58, 61.) 
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Agent Boone’s conduct was susceptible to being based on social, economic, or 
political policy. As Herrera aptly explained, 
[d]ecisions concerning whether to initia te, continue, or terminate a pursuit 
implicate competing policies. On the one hand, “law enforcement agents have 
a mandatory duty to enforce the law,” Horta v. Sullivan, 4 F.3d 2, 21 (1st Cir. 
1993), which must be balanced against the safety concerns of the general 
public as well as minimizing economic losses and political concerns. 
 
No. 09-cv-00756-JM-WMc, 2010 WL 4236974, at *4. 
Under these circumstances, the Discretiona ry Function Exception applies to Agent 
Boone’s decision to initiate his pursuit of the Infiniti and his corresponding decisions to 
continue and not terminate the pursuit. In turn, the exception bars any claims based on these 
decisions. To the extent that Counts Three and Four are based on these choices, Counts 
Three and Four are DISMISSED WITH PREJUDICE. 
5. Agent Boone and his supervisors complied with the 2023 Pursuit 
Policy’s training requirement. 
 
The sole remaining basis for Counts Three and Four is the United States’ alleged 
failure to adequately train or supervise Agent Boone because he “failed to complete the 
mandatory biennial refresher training on pursuit policies in 2024.” (Doc. No. 1 ¶¶  42, 81, 
88.) 
The United States raises a factual challenge against these claims. (Doc. No. 4-1 at 
15.) The United States points out that Agent Boone completed his re fresher training on 
September 10, 2024, and presen ts Agent Boone’s and his supervisor’s training records to 
support this defense. (Id.; see also Doc. No. 4-5 at 17 (super visor proof of completion on 
September 16, 2024), 36 (Agent Boone’s proof of completion on September 10, 2024), 49 
(Agent Boone’s Certificate of Training).) 
Because the United States raises a factual challenge, the Court need not presume the 
truthfulness of Perez Perez’s allegations and may instead review evidence beyond the 
complaint. Safe Air, 373 F.3d at 1039. Once a movant pres ents a factual challenge, “the 
party opposing the motion must furnish affidavits or other evidence necessary to satisfy its 
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burden of establishing subject matter jurisdiction.” Id. (quoting Savage v. Glendale Union 
High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003)). 
Here, Perez Perez’s unsigned opposition con cedes that Agent Boone was trained, 
contrary to Perez Per ez’s initial allegation. ( Compare Doc. No. 7 at 6 (“Boone’s training 
records confirm he knew these rules”), with Doc. No. 1 ¶ 42.) Thus, it appears Perez Perez 
has abandoned this basis for Counts Thr ee and Four. Counts Three and Four are 
consequently DISMISSED WITH PREJUDICE in their entirety. 
IV. CONCLUSION 
For the foregoing reasons, the United States’ motion to dismiss is GRANTED. 
Because amendment would be futile, the Action is DISMISSED WITH PREJUDICE . 
The Clerk of Court is DIRECTED to close the case. 
IT IS SO ORDERED. 
Dated: June 4, 2026 
 
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