A.P.F. v. United States

• Decision Date: 27 July 2020
• Docket Number: No. CV-20-00065-PHX-SRB,CV-20-00065-PHX-SRB
• Citation: 492 F.Supp.3d 989
• Parties: A.P.F., et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Arizona

492 F.Supp.3d 989

A.P.F., et al., Plaintiffs,

v.UNITED STATES of America, Defendant.

No. CV-20-00065-PHX-SRB

United States District Court, D. Arizona.

Signed July 27, 2020

Gillian Brett Gillers, Pro Hac Vice, James Melvin Knoepp, Pro Hac Vice, Michelle Lapointe, Pro Hac Vice, Norma Ventura, Southern Poverty Law Center - Decatur, GA, Decatur, GA, Jason Andrew Carey, Pro Hac Vice, Matthew Jay Schlesinger, Pro Hac Vice, Terra White Fulham, Pro Hac Vice, Covington & Burling LLP, Washington, DC, Jessica R. Hanson, Pro Hac Vice, Covington & Burling LLP, Los Angeles, CA, Keith Beauchamp, Shelley Tolman, Coppersmith Brockelman PLC, Phoenix, AZ, Paul R. Chavez, Pro Hac Vice, Southern Poverty Law Center - Miami, FL, Miami, FL, Swati R. Prakash, Pro Hac Vice, Covington & Burling LLP, New York, NY, for Plaintiffs.

Philip Davis MacWilliams, Theodore William Atkinson, Us Dept of Justice, Washington, DC, for Defendant.

ORDER

Susan R. Bolton, United States District Judge

This case arose out of the federal government's forced separation of alien parents from their children along the United States–Mexico border. Pending before the Court is Defendant United States’ Motion and Memorandum in Support of the United States’ Motion to Dismiss (Doc. 21 ("Mot.")).

I. BACKGROUND

In an effort to deter border crossings from Central America, the Trump Administration implemented a policy of separating families at the United States–Mexico border through a pilot program beginning in July 2017. (Doc. 34, First Am. Compl. ("FAC") ¶¶ 9, 11, 59–60, 482.) Pursuant to this policy, the United States targeted families for prosecution, separated children from parents, classified the children as Unaccompanied Minor Children ("UAC"), and sent the children across the country without documenting the familial relationship. (Id. ¶¶ 60–62, 73–74.) In April 2018, the U.S. Attorney General announced a formal policy of family separation. (Id. ¶ 65.) In June 2018, a federal district court enjoined this practice after recognizing its likely unconstitutionality. Ms. L. v. U.S Immigration & Customs Enf't , 310 F. Supp. 3d 1133, 1149 (S.D. Cal. 2018), modified , 330 F.R.D. 284 (S.D. Cal. 2019). Around the same time, the Trump Administration issued an executive order formally ending this policy. (FAC ¶ 77 (citing Exec. Order No. 13841, 83 FR 29, 435 ).) In total, the United States separated thousands of families pursuant to this policy. (Id. ¶¶ 15, 75, 491.)

Plaintiffs are six fathers ("Plaintiff Fathers") and their children ("Plaintiff Children") (collectively, "Plaintiffs") who came to the United States in November 2017 and May 2018 seeking asylum from violent persecution in their home country of Guatemala. (Doc. 29, Pls.’ Opp'n to Mot. ("Opp'n") at 2; FAC ¶ 1, 31–43.) Shortly after crossing the border into Arizona, Plaintiffs were detained by Customs and Border Protection ("CBP") officers, stripped of their possessions, and placed in CBP facilities. (Opp'n at 2.) Plaintiffs were held in hieleras —"small, freezing concrete cells crowded with twenty to thirty other migrant families." ( Id. ) CBP officials provided Plaintiffs with limited food and water and no room to lie down. ( Id. )

CBP officials separated Plaintiffs and shipped the children to facilities run by government contractors in New York, Michigan, and Texas. ( Id. ; FAC ¶¶ 36, 155, 215, 230, 303, 339, 383, 452.) While in these facilities, three of Plaintiff Children were physically and sexually touched, or otherwise abused, by other children in the facility. (Opp'n at 2; FAC ¶¶ 16, 156, 232, 303.) Meanwhile, Plaintiff Fathers were shuffled around ICE facilities in Arizona, Georgia, and Texas. (Opp'n at 2; FAC ¶¶ 32, 34, 36, 38, 41, 43.) Plaintiff Fathers were provided no information concerning their children's whereabouts and were unable to speak to their children for several weeks. (Opp'n at 2.)

Each Plaintiff Father was separated from his child for a period ranging from eight weeks to eight months. (FAC ¶ 16.) At no point were Plaintiff Fathers charged with a crime or found to be unfit to retain custody of their children. ( Id. ) As a result of the forced separation, Plaintiffs suffered and continue to suffer mental and emotional trauma. ( Id. )

Plaintiffs filed suit on January 10, 2020, alleging three causes of action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b)(1), 2671 – 2680 : (1) intentional infliction of emotional distress ("IIED"); (2) negligence; and (3) loss of child's consortium. (Doc. 1, Compl. ¶¶ 303–330.) On April 14, 2020, the Court granted Plaintiffs’ Motion to Transfer. (Doc. 26, 4/14/20 Order; Doc. 10, Mot. to Transfer.) On March 17, 2020, the United States filed its Motion, challenging the Court's jurisdiction and the sufficiency of Plaintiffs’ claims. (Mot.) On May 18, 2020, Plaintiffs filed their Opposition ("Opposition"). (Opp'n.) On June 17, 2020, the United States filed its Reply. (Doc. 32, Reply in Supp. of Mot. ("Reply").) On July 16, 2020, Plaintiffs filed their Amended Complaint, adding four fathers and their children to this suit. (FAC.) Because the additional four Plaintiff families are similarly situated to the original two, the Court determined that the Motion, Opposition, and Reply would be considered as directed at the Amended Complaint, and declined to permit additional briefing. (See 7/15/20 Order.)

II. RULE 12(B)(1) LACK OF JURISDICTION

The United States’ Motion attacks the Amended Complaint on its face. See 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."). In ruling on such a motion, the Court accepts the allegations of the complaint as true and affords plaintiffs the benefit of all favorable inferences that can be drawn from the alleged facts. Wolfe v. Strankman , 392 F.3d 358, 362 (9th Cir. 2004) ; Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit , 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Plaintiffs bear the burden of establishing a court's subject-matter jurisdiction. See Kokkonen v. Guardian Life Ins , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ; Chandler v. State Farm Mut. Auto. Ins. , 598 F.3d 1115, 1122 (9th Cir. 2010). Plaintiffs allege jurisdiction under 28 U.S.C. §§ 1331, 1346(b), and the Federal Torts Claims Act ("FTCA"), 28 U.S.C. §§ 2671 – 2680. (FAC ¶ 28.) The United States disputes that the FTCA confers jurisdiction. (Mot. at 9–25.)

A. FTCA Jurisdiction

The United States is immune from liability absent its consent, and the terms of that consent define a court's jurisdiction to entertain a suit against the United States. United States v. Mitchell , 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). The FTCA provides such consent "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Fazaga v. FBI , 916 F.3d 1202, 1249 (9th Cir. 2019) (quoting 28 U.S.C. § 1346(b)(1) ). The FTCA's general waiver of immunity is subject to various exceptions and exclusions. Dolan v. U.S. Postal Serv. , 546 U.S. 481, 485, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006). The "plaintiff bears the burden of persuading the court that it has subject[-]matter jurisdiction under the FTCA's general waiver of immunity," and the United States bears the burden of proving that an exception applies. Prescott v. United States , 973 F.2d 696, 701–02 (9th Cir. 1992) (citing 28 U.S.C. § 1346(b) ).

The United States argues that the Court lacks jurisdiction over Plaintiffs’ claims because Plaintiffs have failed to prove the existence of a private analogue, and that even if they have, three exceptions and one exclusion apply. (Mot. at 2.)

1. Private Analogue Requirement

To carry their burden of establishing subject-matter jurisdiction under the FTCA, Plaintiffs must show that "a private individual under like circumstances would be liable under state law." United States v. Muniz , 374 U.S. 150, 153, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963) ; 28 U.S.C. § 1346(b). To do this, Plaintiffs’ allegations must demonstrate "a persuasive analogy with private conduct." See Westbay Steel, Inc. v. United States , 970 F.2d 648, 650 (9th Cir. 1992) (quoting Woodbridge Plaza v. Bank of Irvine , 815 F.2d 538, 543 (9th Cir. 1987) ). Recognizing that "the federal government ‘could never be exactly like a private actor,’ " the Ninth Circuit only requires courts to "find the most reasonable analogy" to private tortious conduct. Dugard v. United States , 835 F.3d 915, 919 (9th Cir. 2016) (quoting LaBarge v. Mariposa Cty. , 798 F.2d 364, 367 (9th Cir. 1986) ).

Private individuals have been held liable for IIED, negligence, and loss of child's consortium in Arizona under reasonably similar circumstances. This Court has already recognized the existence of a private analogy for IIED and negligence in nearly identical circumstances. See C.M. v. United States , No. CV-19-05217-PHX-SRB, 2020 WL 1698191, at *2 (D. Ariz. Mar. 30, 2020) ; see also Martinez v. United States , 2018 WL 3359562, at *10–12 (D. Ariz. July 10, 2018) (recognizing viability of IIED claim brought under FTCA where "[federal] agents’ actions were motivated by malice"); Estate of Smith v. Shartle , No. CV-18-00323-TUC-RCC, 2020 WL 1158552, at *1 (D. Ariz. Mar. 10, 2020) (recognizing viability of negligence claim brought under FTCA where plaintiffs alleged federal employees’ placement of a prisoner in a certain cell was negligent). Arizona law also awards damages for the loss of a child's consortium when a caretaker's actions cause "significant interference with the normal relationship between parent and child[.]" Bickler v. Senior Lifestyle Corp. , No. CV09-00726-PHX-DGC, 2010 WL 2292985, at *6 (D. Ariz. June 8, 2010) (quoting Pierce v. Casas Adobes Baptist Church , 162 Ariz. 269, 782 P.2d 1162, 1165 (198...