Fuentes-Ortega v. United States ( 2022 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Lilian Fuentes-Ortega, on her own behalf No. CV-22-00449-PHX-DGC 10 and on behalf of her minor children, H.Y.L.F. and B.M.L.F., 11 ORDER Plaintiffs, 12 v. 13 United States of America, 14 Defendant. 15 16 17 Plaintiff Lilian Fuentes-Ortega, on behalf of herself and her minor children, 18 H.Y.L.F. and B.M.L.F. (collectively, “Plaintiffs”), initiated this action against Defendant 19 United States pursuant to the Federal Tort Claims Act. Docs. 1, 17. Defendant has filed 20 a motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Doc. 44. 21 The motion is fully briefed and no party requests oral argument. Docs. 47, 50. For reasons 22 set forth below, the Court will grant the motion in part and deny it in part. 23 I. Background. 24 Plaintiffs assert claims relating to the Trump Administration’s “Zero Tolerance 25 Policy.” Doc. 17. The history of that policy traces back to January 2017. Docs. 17, 44. 26 The policy, which has now been discontinued, applied when federal immigration officials 27 apprehended and detained individuals illegally crossing the U.S.-Mexico border. Exec. 28 1 Order No. 13,767, 82 Fed. Reg. 8793 (January 25, 2017); Memorandum from the Attorney 2 General to Federal Prosecutors Along the Southwest Border (Apr. 6, 2018), 3 https://www.justice.gov/opa/press-release/file/1049751/download (last visited Nov. 3, 4 2022). Federal officials deemed children traveling with detained parents 5 “unaccompanied,” separated them from their parents, and placed them in the custody of 6 the Department of Health and Human Services’ Office of Refugee Resettlement (“ORR”). 7 See id.; Doc. 44. 8 According to the amended complaint, Fuentes-Ortega and her twelve- and eight- 9 year-old sons crossed the border near Alta Sonora, Arizona in November 2017. Doc. 17 ¶ 10 56. Customs and Border Protection (“CBP”) officials apprehended the family, transported 11 them to a nearby detention facility, and placed them in a holding cell with other families. 12 Id. ¶¶ 60, 63, 65. 13 Within about 24 hours, H.Y.L.F. and B.M.L.F. were separated from Fuentes-Ortega 14 and transported to a shelter in California. Id. ¶¶ 88, 104. Two months later they were 15 relocated to Georgia to live with an aunt. Id. ¶¶ 146-47. 16 In December 2017, Fuentes-Ortega signed a removal order and was deported to 17 Guatemala. Id. ¶¶ 126, 130. Fuentes-Ortega entered the United States again six months 18 later, was convicted of illegal reentry and sentenced to time served, and was placed in ICE 19 custody. Id. ¶¶ 157-63. In August 2019, Fuentes-Ortega was released from ICE custody 20 on an order of supervision and reunited with her children in Georgia. Id. ¶ 166. Plaintiffs 21 now bring claims for intentional infliction of emotional distress (“IIED”), breach of 22 fiduciary duty (on behalf of the children), negligence, negligent supervision, abuse of 23 process, and loss of consortium. Id. ¶¶ 174-219. 24 II. Legal Standard. 25 “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for 26 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial attack like this one 27 asserts that the allegations in the complaint are “insufficient on their face to invoke federal 28 jurisdiction.” Id. When considering a facial attack, the Court takes the allegations in the 1 plaintiff’s complaint as true. Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009) (citing 2 Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004)). The party invoking the Court’s 3 jurisdiction has the burden of establishing it. Kokkonen v. Guardian Life Ins. Co. of Am., 4 511 U.S. 375, 377 (1994). 5 III. Analysis. 6 As a sovereign, the United States is immune from suit unless it expressly waives its 7 immunity. United States v. Mitchell, 463 U.S. 206, 212 (1983). When no waiver of 8 sovereign immunity has occurred, a court must dismiss the action for lack of subject matter 9 jurisdiction. See Sierra Club v. Whitman, 268 F.3d 898, 905-06 (9th Cir. 2001). The 10 Federal Tort Claims Act (“FTCA”) waives sovereign immunity for: 11 personal injury or death caused by the negligent or wrongful act or omission 12 of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a 13 private person, would be liable to the claimant in accordance with the law of 14 the place where the act or omission occurred. 15 28 U.S.C. § 1346(b)(1). 16 The United States argues that the Court lacks subject matter jurisdiction because 17 Plaintiffs’ claims are subject to the FTCA’s discretionary function and due care exceptions, 18 have no private analogy for the allegedly tortious conduct, and are impermissibly based on 19 systemic rather than individual actions. 20 A. Discretionary Function Exception. 21 The discretionary function exception bars claims “based upon the exercise or 22 performance or the failure to exercise or perform a discretionary function or duty on the 23 part of a federal agency or an employee of the Government, whether or not the discretion 24 involved be abused.” 28 U.S.C. § 2680(a). The Supreme Court has established a two-part 25 test for determining when the discretionary function exception applies. Berkovitz v. United 26 States, 486 U.S. 531, 536-37 (1988). First, courts ask whether the challenged action 27 involved an element of judgment. Id.; see Gonzalez v. United States, 814 F.3d 1022, 1027 28 1 (9th Cir. 2016). This part of the test is not satisfied if a “federal statute, regulation, or 2 policy specifically prescribes a course of action for any employee to follow.” Berkovitz, 3 486 U.S. at 536. Second, if there is room for judgment, courts determine whether the 4 judgment concerns public policy. Id. This part of the test “prevents judicial ‘second- 5 guessing’ of legislative and administrative decisions grounded in social, economic, and 6 political policy.” United States v. Varig Airlines, 467 U.S. 797, 814 (1984). 7 The United States contends that the decisions to prosecute Fuentes-Ortega and 8 detain her separately from H.Y.L.F. and B.M.L.F., and the conditions of their confinement, 9 are subject to the discretionary function exception to the FTCA. Doc. 44 at 14. The United 10 States argues that these decisions are textbook examples of prosecutorial discretion and 11 susceptible to policy considerations. Id. at 15, 18. 12 The Ninth Circuit has held, however, that “the Constitution can limit the discretion 13 of federal officials such that the FTCA’s discretionary function exception will not apply.” 14 Nurse v. United States, 226 F.3d 996, 1002 n.2 (9th Cir. 2000). The opinion in Nurse 15 declined to “make any decision regarding the level of specificity with which a 16 constitutional proscription must be articulated in order to remove the discretion of a federal 17 actor.” Id. The United States asks this Court to venture beyond Nurse and hold that the 18 discretionary function exception applies unless the Constitution specifically prescribes a 19 course of action for an employee to follow. Doc. 50 at 4. The government takes this 20 standard from the Supreme Court’s decision in Gaubert v. United States, 499 U.S. 315, 21 322 (1991), which addressed the level of specificity required in statutes and regulations to 22 eliminate a government employee’s discretion. Although the Court finds the United States’ 23 argument somewhat persuasive, it does not appear to comport with the holding in Nurse. 24 That case specifically held that mere allegations of a constitutional violation were sufficient 25 to defeat an early motion to dismiss based on the discretionary function exception: 26 Because of the bare allegations of the complaint, we cannot determine at this 27 stage of the proceedings whether the acts of the policy-making defendants violated the Constitution, and, if so, what specific constitutional mandates 28 they violated. These are questions that will be fleshed out by the facts as this case proceeds toward trial. They are not questions that can always be easily 1 answered on a motion to dismiss. Therefore, because the alleged decisions 2 of the policy-making defendants may have been non-discretionary, we must reverse the district court’s dismissal of plaintiff’s FTCA claims based on 3 those decisions. 4 Nurse, 226 F.3d at 1002. Other Ninth Circuit cases have followed Nurse without 5 prescribing the level of constitutional specificity required to defeat the discretionary 6 function exception. If anything, these later cases seem to suggest that a mere constitutional 7 violation is sufficient to defeat the exception. See Fazaga v. Fed. Bureau of Investigation, 8 916 F.3d 1202, 1251 (9th Cir. 2019), rev’d on other grounds, 142 S. Ct. 1051 (2022) (“[If] 9 Defendants did not violate any federal constitutional or statutory directives, the 10 discretionary function exception will bar Plaintiffs’ FTCA claims.”); Galvin v. Hay, 374 11 F.3d 739, 758 (9th Cir. 2004) (“As federal officials do not possess discretion to violate 12 constitutional rights, the discretionary function exception does not apply here.”) (citations 13 omitted). 14 The United States acknowledges that district courts in this circuit have, under 15 substantially similar circumstances, rejected its discretionary function argument. Doc. 44 16 at 21 (citing A.P.F. v. United States, 492 F. Supp. 3d 989, 996 (D. Ariz. 2020); Nunez 17 Euceda v. United States, No. 2:20-CV-10793-VAP-GJSx, 2021 WL 4895748, *3 (C.D. 18 Cal. Apr. 27, 2021); C.M. v. United States, No. CV-19-5217-PHX-SRB, 2020 WL 19 1698191, *4 (D. Ariz. Mar. 30, 2020)). The courts in each of these cases found that the 20 mere pleading of a plausible constitutional violation rendered the discretionary function 21 exception inapplicable. See id.; see also F.R. v. United States, No. CV-21-00339-PHX- 22 DLR, 2022 WL 2905040, at *3 (D. Ariz. July 22, 2022) (rejecting the same arguments); 23 Wilbur P.G. v. United States, No. 4:21-CV-04457-KAW, 2022 WL 3024319, at *4 (N.D. 24 Cal. May 10, 2022) (same). Plaintiffs allege that separating Fuentes-Ortega from 25 H.Y.L.F. and B.M.L.F. violated the Constitution. Doc. 17 ¶¶ 29, 52. 26 The United States argues that these cases are inapposite because they concerned a 27 Zero Tolerance Policy that came into effect after Plaintiffs were detained and separated. 28 1 Doc. 44 at 21. But Plaintiffs allege that they were subjected to a pilot for the Zero 2 Tolerance Policy that had been expanded to cover the entire border (Doc. 17 ¶¶ 21-22), and 3 the Court cannot conclude that a precursor to a program found likely unconstitutional is 4 itself necessarily constitutional.1 5 The Court will not dismiss Plaintiffs’ claims at this stage of the case on the basis of 6 the discretionary function exception.2 7 B. Due Care Exception. 8 The FTCA bars “claim[s] based upon an act or omission of an employee of the 9 Government, exercising due care, in the execution of a statute or regulation, whether or not 10 such statute or regulation be valid.” 28 U.S.C. § 2680(a). The due care exception avoids 11 “tests by tort action of the legality of statutes and regulations.” Dalehite v. United States, 12 346 U.S. 15, 33 (1953). 13 To determine whether the due care exception applies, district courts in this circuit 14 apply a two-prong test found in Welch v. United States, 409 F.3d 646, 652 (4th Cir. 2005). 15 See, e.g., A.F.P. v. United States, No. 1:21-cv-00780-DAD-EPG, 2022 WL 2704570, at 16 *14 (E.D. Cal. July 12, 2022); Nunez Euceda, 2021 WL 4895748, at *3; C.M., 2020 WL 17 1698191, at *3; Ferguson v. United States, No. 15CV1253 JM (DHB), 2016 WL 4793180, 18 at *7 (S.D. Cal. Sept. 14, 2016); Kwai Fun Wong v. Beebe, No. CIV. 01-718-ST, 2006 WL 19 977746, at *8 (D. Or. Apr. 10, 2006). That test provides that the due care exception bars 20 claims if (1) “the statute or regulation in question specifically pr[e]scribes a course of 21 action for an officer to follow,” and (2) “the officer exercised due care in following the 22 dictates of that statute or regulation.” Welch, 409 F.3d at 652. The United States bears the 23 “ultimate burden” of proving the applicability of the due care exception. Prescott v. United 24 1 The court in Ms. L. v. U.S Immigr. & Customs Enf’t (“ICE”), 310 F. Supp. 3d 25 1133, 1145 (S.D. Cal. 2018), modified, 330 F.R.D. 284 (S.D. Cal. 2019), found the Zero Tolerance Policy likely unconstitutional. 26 2 In its reply, the United States argues that Plaintiffs’ negligence claims based on 27 conditions of confinement should be dismissed for lack of jurisdiction under the discretionary function exception. Doc. 50 at 8. Plaintiffs clearly state, however, that they 28 are asserting no claims based solely on conditions of confinement. Doc. 47 at 26. 1 States, 973 F.2d 696, 702 (9th Cir. 1992). If the United States fails to establish either 2 prong, the exception does not apply. Id. 3 The United States’ motion and reply do not address the two-part Welch test, even 4 though Plaintiffs rely heavily on it in their response. Instead, the government argues simply 5 that the Trafficking Victims Protection Reauthorization Act, 8 U.S.C. § 1232(b)(3), 6 required transfer of H.Y.L.F. and B.M.L.F. to ORR custody within 72 hours after they were 7 deemed unaccompanied on the basis of their mother’s prosecution. Doc. 44 at 22-23. 8 Plaintiffs dispute this assertion, arguing in part that the statute did not mandate their 9 separation, but the Court need not resolve this disagreement. Plaintiffs also argue that the 10 second prong of the Welch test is not satisfied because agents in this case did not exercise 11 due care when they separated Fuentes-Ortega and the children. Plaintiffs assert that they 12 were housed in harsh conditions, that they were separated in an insensitive and traumatic 13 manner, and that the separation was entirely unnecessary. Doc. 47 at 13-16. Other courts 14 have found that separations of this kind lack due care. See A.F.P., 2022 WL 2704570, at 15 *15. The government does not address this issue, much less show that its agents exercised 16 due care in their treatment of Plaintiffs. The government ultimately bears the burden on 17 this issue, and has not shown that the due care exception applies. 18 C. Private Analogy Requirement. 19 The FTCA’s waiver of sovereign immunity is limited to “circumstances where the 20 United States, if a private person, would be liable to the claimant in accordance with the 21 law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). Plaintiffs 22 must therefore show a “persuasive analogy with private conduct.” Westbay Steel, Inc. v. 23 United States, 970 F.2d 648, 650 (9th Cir. 1992) (quoting Woodbridge Plaza v. Bank of 24 Irvine, 815 F.2d 538, 543 (9th Cir. 1987)). 25 The United States relies on a single argument to assert that Plaintiffs cannot show a 26 private analogy — that “only the federal government has the authority to enforce federal 27 criminal and immigration laws and make detention determinations.” Doc. 44 at 22. In 28 other words, the government argues that there is no private tort analogy to the alleged 1 actions in this case because immigration enforcement is solely a federal function. This 2 argument is not persuasive. It is possible to “define governmental action in almost any 3 situation narrowly enough to render it uniquely governmental.” Arvanis v. Noslo Eng’g 4 Consultants, Inc., 739 F.2d 1287, 1290 (7th Cir. 1984). “The better approach is to focus 5 on the behavior involved, not the legal labels applied, and then look for analogies with 6 private conduct.” Id. For example, the Supreme Court has explained that the government 7 might be liable under the FTCA for negligent operation of a lighthouse because “[p]rivate 8 individuals, who do not operate lighthouses, nonetheless may create a relationship with 9 third parties that is similar to the relationship between a lighthouse operator and a ship 10 dependent on the lighthouse’s beacon.” United States v. Olson, 546 U.S. 43, 47 (2005). 11 “Analogy not identity of circumstance is key.” Lu v. Powell, 621 F.3d 944, 948 (9th Cir. 12 2010) (internal quotation marks omitted). 13 Plaintiffs note that district courts presented with similar claims stemming from the 14 Zero Tolerance Policy have recognized private analogies. See A.I.I.L. v. Sessions, No. CV- 15 19-00481-TUC-JCH, 2022 WL 992543, at *5-8 (D. Ariz. Mar. 31, 2022) (acknowledging 16 the existence of a private analogy to IIED, negligence, and loss of consortium); A.P.F., 492 17 F. Supp. at 994 (same); C.M., 2020 WL 1698191, at *2 (recognizing the existence of a 18 private analogy to IIED and negligence); see also B.A.D.J. v. United States, No. CV-21- 19 00215-PHX-SMB, 2022 WL 11631016, at *4-5 (D. Ariz. Sept. 30, 2022) (acknowledging 20 the existence of a private analogy to IIED, negligence, and loss of consortium); F.R., 2022 21 WL 2905040, at *3 (same). 22 The United States does not address any of the specific tort claims asserted by 23 Plaintiffs in this case, and the Court will not grant the motion to dismiss on the basis of the 24 government’s unduly narrow characterization of the conduct in question. 25 D. Direct, Institutional, or Systemic Tort Liability. 26 The FTCA waives sovereign immunity for the tortious acts or omissions of 27 individual employees. Adams v. United States, 420 F.3d 1049, 1054 (9th Cir. 2005); see 28 1| 28 U.S.C. § 2671. Tortious acts or omissions of government agencies or the federal 2| government as a whole cannot form the basis for FTCA claims. /d. 3 The United States argues that the amended complaint improperly asserts institutional tort claims against the government at large. Doc. 44 at 25. The Court does 5 | not agree. 6 Plaintiffs sue the United States for alleged “wrongful acts or omissions of its employees, including employees of” various government agencies. Doc. 17 4 19 (emphasis 8 | added). The amended complaint makes specific allegations regarding individual federal employees and officers. Id. [§ 73-74, 77, 88-89, 123-125. The Court has subject matter 10 | jurisdiction over these allegations concerning individual federal employees. 11 The government’s reliance on Lee v. United States, No. CV 19-08051-PCT-DLR (DMB), 2020 WL 6573258 (D. Ariz. Sept. 18, 2020), misses the mark. The plaintiff in that 13 | case asserted tort claims against the United States under an “unclear” theory of liability. 14| Jd. at *5. The district court considered the causes of action both as direct liability claims 15 | and implied FTCA claims, and dismissed the implied FTCA theory for failure to state a 16 | claim, not for lack of subject matter jurisdiction. Id. at *6-7. 17 It is true, nonetheless, that the amended complaint in this case may be read to allege 18 | misconduct of government agencies. Doc. 17 4] 23-28, 71-72. To the extent it does, the Court will grant Defendant’s motion. See F.R., 2022 WL 2905040, at *4. 20 IT IS ORDERED that Defendant’s motion to dismiss (Doc. 44) is granted with 21 | respect to any claims based on general actions of the United States or its agencies, and 22 | denied in all other respects. 23 Dated this 14th day of November, 2022. 24 25 pur 6. Cor pel 26 David G. Campbell 07 Senior United States District Judge 28