S.E.B.M. v. United States
| Decision Date | 06 March 2023 |
| Docket Number | 1:21-cv-00095-JHR-LF |
| Parties | S.E.B.M., a minor, by and through her next friend, MARIA MENDEZ FELIPE, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER is before the Court on Defendant United States of America's (“the government”) Motion to Dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) (“the Motion”). [Doc. 16]. Briefing is complete and Plaintiff S.E.B.M., by and through her next friend, Maria Mendez Felipe (“S.E.B.M.'s grandmother”), has also filed supplemental briefing with leave of Court. See Docs 41, 45, 49, 59-60. Having considered the briefing and the relevant law, the Court grants the Motion.
This is a case stemming from the separation of a young child from her father after they illegally entered the United States and her father was prosecuted and deported. The young child sued the government under the Federal Tort Claims Act (“FTCA”), alleging that her separation from her father and the government's treatment of her afterwards constituted an intentional infliction of emotional distress or at least negligence, under New Mexico law. The government does not deny that it separated the child from her father and that they were never reunited. Rather, the government argues that the child's tort claims are not analogous to valid state law claims; that its actions, including the separation, were merely side effects of the government's discretionary decision to prosecute the child's father; and that many of its actions were required by federal law and were taken with due care. If the government is correct, the Court lacks subject matter jurisdiction under the FTCA. The government thus moves for this Court to dismiss the case.
The Court grants the government's motion. There is little doubt S.E.B.M. was harmed by the government's actions, but the FTCA does not give everyone who is harmed by the government a right to sue. S.E.B.M.'s intentional infliction of emotional distress and negligence claims, even if brought against a private person under the same circumstances, would not succeed under state law. And although S.E.B.M. argues that she is suing for her separation, not her father's prosecution, the direct link between those events makes it impossible to sue for one and ignore the other. The government had discretion to prosecute S.E.B.M.'s father, that prosecution did not violate any other federal law, and the government's actions after S.E.B.M.'s father was charged were a combination of mandatory actions taken with due care and discretionary actions for which S.E.B.M. cannot sue. This Court thus lacks jurisdiction to hear her claims and must dismiss this case.
S.E.B.M. is a child from San Miguel Acatan, Huehuetenango, Guatemala. [Doc. 1 ¶ 63]. In July 2017, while her mother remained in Guatemala, S.E.B.M. and her father crossed the border from Mexico into the United States at or near Santa Teresa, New Mexico. Id. at ¶¶ 5, 65. S.E.B.M. was two years old at the time and spoke only Akateko, an indigenous Guatemalan language. Id. at ¶ 63. S.E.B.M. and her father turned themselves in to United States Customs and Border Protection (“CBP”) officials who then transported them to the Santa Teresa CBP station. Id. at ¶ 65.
S.E.B.M. and her father spent one night together at the Santa Teresa CBP station. Id. at ¶ 68. While there, S.E.B.M.'s father gave CBP officials contact information for his mother (S.E.B.M.'s grandmother), who lived in Florida. Id. at ¶ 69. CBP officials permitted S.E.B.M.'s father to call his mother to tell her that he would be transferred to a jail. Id. at ¶ 71.
S.E.B.M. was separated from her father in early August 2017 and has not seen him since. Id. at ¶ 72. The separation was distressing and caused her to cry inconsolably. Id. at ¶ 73. S.E.B.M. asserts that what happened to her was part of the Trump administration's “Pilot Program for Family Separation” and that this program resulted in the forced separation of nearly four-thousand children from their parents or guardians after they crossed the southwestern United States border. Id. at ¶¶ 1, 3, 19. She further contends that the purpose of the Pilot Program was to “use the trauma resulting from family separations, and the consequent media reporting about that trauma, to deter future asylum seekers.” Id. at ¶ 2.
S.E.B.M.'s father was charged with improper entry, a misdemeanor immigration offense, transferred to the custody of the United States Marshals Service, and transported to jail. Id. at ¶ 77; see also 8 U.S.C. § 1325(a) (defining “improper entry” offenses). S.E.B.M.'s father pled guilty, was sentenced to time served, and was transported to the El Paso Service Processing Center in mid-August to be deported. [Doc. 1 ¶ 78]. He was ultimately deported to Guatemala in late November 2017. Id.
Meanwhile, S.E.B.M. was transferred to the Clint CBP station in Texas and placed in the care of the Office of Refugee Resettlement (“ORR”) shortly after she was taken from her father. Id. at ¶ 85. Due to her age and the language barrier, S.E.B.M. could not provide contact information or details about her planned living arrangements in the United States. Id. at ¶ 86. At some point, ORR placed S.E.B.M. in a foster home through a local agency in Brownsville, Texas. Id. at ¶¶ 85-87. S.E.B.M.'s caretakers took her to see an ORR case manager, visit with an ORR counselor, and make calls to her parents at the office of the foster care program. Id. at ¶ 87. On September 29, 2017, S.E.B.M.'s case manager began facilitating phone calls between S.E.B.M. and her father. Id. at ¶ 89. However, because of the conditions of his immigration detention, calls were allegedly limited to five minutes each. Id.
S.E.B.M.'s mother died in mid-October 2017. Id. at ¶ 90. S.E.B.M.'s counselor told S.E.B.M., but S.E.B.M. struggled to process the information because she was so young. Id. In November 2017, S.E.B.M.'s case manager indicated that S.E.B.M.'s family had chosen her grandmother to be her immigration sponsor and that the case manager was working on placing S.E.B.M. in her care. Id. at ¶ 92. This was accomplished on January 8, 2018, when S.E.B.M. was released into her grandmother's custody in Florida where she still lives today. Id. at ¶¶94-95.
S.E.B.M. alleges that her ordeal in government custody caused her severe mental and emotional harm. Id. at ¶ 96. According to her grandmother, S.E.B.M. cried often, did not sleep well, and barely ate for months after she was discharged. Id. at ¶ 99. She also frightened easily and was afraid to go outside. Id. at ¶ 100. She appeared especially distressed by the absence of relatives, clinging to her grandmother everywhere she went and following after a male relative while crying every time he left home. Id. S.E.B.M. alleges that her mental and emotional harm continues today. Id. at ¶ 101.
S.E.B.M. sued the government on February 5, 2021, alleging two claims under the FTCA: intentional infliction of emotional distress (Count I) and negligence (Count II). See id. at ¶¶ 102-12. Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(b), the parties consented to my entering final judgment in this case. [See Docs. 19-21].
On May 3, 2021, the government filed the present Motion to Dismiss. [Doc. 16]. After unsuccessful settlement discussions, S.E.B.M. responded to the Motion on March 8, 2022. [Docs. 33, 41]. The government replied on March 22, 2022, and S.E.B.M. filed a surreply on March 31, 2022. [See Docs. 45, 49]. S.E.B.M. also filed a Notice of Supplemental Authority on September 9, 2022, notifying the Court of United States District Judge Robert C. Brack's ruling on a similar motion to dismiss in another family separation case filed in this district. [See Doc. 59]. The government responded to the notice on September 26, 2022. [Doc. 60].[1]
The government moves to dismiss S.E.B.M.'s claims for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. [See Doc. 16]. The United States contends that it has not waived its sovereign immunity for S.E.B.M.'s FTCA claims. Id. at 2.
“Sovereign immunity protects the United States and its agencies from being sued without their consent.” Poche v. Joubran, 644 F.3d 1105, 1108 (10th Cir. 2011) (citing F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994)). The FTCA provides a limited waiver of sovereign immunity allowing certain state-law tort claims against the government. Brownback v. King, 141 S.Ct. 740, 745 (2021); Ball v. United States, 967 F.3d 1072, 1075 (10th Cir. 2020). Within that waiver, the United States can be held liable only “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.” Ball, 967 F.3d at 1075 (citing 28 U.S.C. § 1346(b)(1)). FTCA plaintiffs must prove that sovereign immunity has been waived. See James v. United States, 970 F.2d 750, 753 (10th Cir. 1992). Proof of waiver may not be determinative, however, because the FTCA also has several exceptions to its general waiver of sovereign immunity. Ball, 967 F.3d at 1075. “When an exception applies, sovereign immunity remains, and federal courts lack jurisdiction.” Garling v. U.S. Env't Prot. Agency, 849 F.3d 1289, 1294 (10th Cir. 2017) (citations omitted).
Here the government argues that the Court lacks jurisdiction over S.E.B.M.'s FTCA claims generally because they have no private person analogs and additionally because the actions complained of fall within the...
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