Walding v. United States

• Decision Date: 05 July 2013
• Docket Number: Civil Action No. SA–08–CA–124–XR.
• Citation: 955 F.Supp.2d 759
• Parties: David WALDING, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Western District of Texas

955 F.Supp.2d 759

David WALDING, et al., Plaintiffs,

v.UNITED STATES of America, et al., Defendants.

Civil Action No. SA–08–CA–124–XR.

United States District Court,

W.D. Texas,

San Antonio Division.

July 5, 2013.

Kevin Lashus, Tindal & Foster, Austin, TX, for Plaintiffs.

Aaron David Nelson, Arthur Laverne Rizer, Glenn S. Greene, Laura Katherine Smith, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER

XAVIER RODRIGUEZ, District Judge.

On this date, the Court considered the United States' motion to dismiss Plaintiffs' Federal Tort Claims Act (“FTCA”) claims for lack of jurisdiction (docket no. 64). The United States asserts that this Court lacks jurisdiction over Plaintiffs' Twelfth, Thirteenth, and Fourteenth Causes of Action because they fall within the discretionary function and independent contractor exceptions to the FTCA's waiver of sovereign immunity. After careful consideration, the Court grants the motion.

I. Background

Plaintiffs are eleven young men born in Central America who were detained in the United States by federal agents as undocumented and placed in federal custody pending their immigration court proceedings. Each of the Plaintiffs was a minor at the time of his detention, and each was placed at a facility located in Nixon, Texas (“the Nixon facility”) operated by Away From Home, Inc. (“AFH”).¹ AFH contracted with the federal government to house unaccompanied, undocumented minors while they awaited the final adjudication of their immigration status. Plaintiffs allege that they suffered “grave and repeated sexual, physical and emotional abuse” at the facility.² Plaintiffs have sued a number of individuals and entities as a result of the abuse. This Order deals with the claims asserted against the United States under the FTCA.

Under the doctrine of sovereign immunity, the federal government cannot be sued in its capacity as a sovereign unless it consents to be sued. See United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). For the federal government to consent to be sued, Congress must waive sovereign immunity by explicitly extending to federal courts subject-matter jurisdiction over a specified cause of action. Id. The FTCA waives sovereign immunity and allows private individuals to sue the federal government for the torts of its employees by granting federal courts exclusive subject-matter jurisdiction over

civil actions on claims against the United States, for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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.

28 U.S.C. § 1346(b)(1). However, the FTCA contains a number of exceptions to this waiver of sovereign immunity, including the discretionary function and independent contractor exceptions at issue here. In determining whether subject-matter jurisdiction exists, “[c]ourts must strictly construe all waivers of the federal government's sovereign immunity, [resolving] all ambiguities in favor of the sovereign.” Linkous v. United States, 142 F.3d 271, 275 (5th Cir.1998).

The Twelfth Cause of Action, which will be referred to as the “negligent supervision” claim, alleges that certain federal defendants were negligent in carrying out their legal duties to ensure the proper treatment, care, welfare, safety and protection of the minors detained at the Nixon facility. Sixth Am. Compl. ¶ 277. The United States asserts that the discretionary function exception to the waiver of sovereign immunity applies to this claim.

The Thirteenth Cause of Action, which will be referred to as the “negligent selection” claim, alleges that certain individual federal employees were negligent in investigating, selecting, screening and contracting with and/or awarding a grant to AFH to detain the unaccompanied minors, ¶ 284, and that certain federal employees were further negligent in training, supervising, monitoring, and controlling their employees, agents and/or contractors at the Nixon Facility, ¶ 285.³ Defendant United States argues that the discretionary function exception also applies to this claim.

The Fourteenth Cause of Action alleges that the United States is liable for the negligence of AFH and its employees because AFH was performing an exclusive government function in detaining the unaccompanied minors on behalf of the government. Sixth Am. Compl. ¶ 292. The United States asserts that the independent contractor exception to the waiver of sovereign immunity applies to this claim.

The Court previously ordered that Plaintiffs were entitled to discovery pertaining to the United States' asserted exceptions. That discovery has been completed, and thus these issues are ripe for disposition.

II. Factual Summary

On March 1, 2003, the Homeland Security Act of 2002 transferred functions under the U.S. immigration laws regarding the care and placement of “unaccompanied alien children” (sometimes referred to as “UAC” ⁴) from the INS to the Director of the Office of Refugee Resettlement (“ORR”). 6 U.S.C. § 279. ORR is an agency within the Administration for Children and Families (“ACF”) operating division of the Department of Health and Human Services (“DHS” or “DHHS”). ORR created a new office called the Division of Unaccompanied Children's Services (“DUCS”) to carry out these responsibilities. DUCS has developed a network of care options for unaccompanied minors, including shelter care, staff secure, foster care, and residential treatment care.

Although INS had existing facilities in place, most of these were detention facilities, and ORR/DUCS wanted to use alternatives such as shelter care facilities (like Nixon) in order to better comply with the Flores Settlement Agreement. Tota depo. at 24. The 1997 Flores Settlement Agreement was the result of the Flores v. Reno lawsuit brought by unaccompanied minors detained on suspicion of being deportable challenging the constitutionality of the INS's policies, practices, and regulations regarding the detention and release of such minors. The settlement agreement “sets out nationwide policy for the detention, release, and treatment of minors in the custody of INS.” The INS agreed not to place a minor in a secure facility if there were less restrictive alternatives available and appropriate in the circumstances. The Flores Agreement also includes a list of “minimum standards for licensed programs,” which requires that facilities comply with all applicable state child welfare laws and regulations and provide certain enumerated services, such as counseling and education, for the minors.

Shortly after the March 2003 transfer to ORR of responsibilities relating to unaccompanied alien children, Don Rains of AFH called Ken Tota at ORR about providing shelter care services. On April 16, 2003, Ken Tota mailed Don Rains a letter stating, “Due to exigent circumstances, the Office of Refugee Resettlement (ORR), Department of Health and Human Services (HHS) would like to request your submission of an application for the provision of shelter care services for the period May 1, 2003–April 30, 2004.” Pl. Ex. 2;Docket no. 192 Ex. 1. AFH submitted an application.

On May 6, Deborah Kellaher, the Director of the Division of Grants Policy (“DGP”), forwarded the urgent “unsolicited proposal” to Nguyen Van Hanh, the Director of ORR, stating that it appeared to qualify as an unsolicited application under the definitions set forth in the ACF Grants Administration Manual (“GAM”) sections 2.02.407H and 2.11.404A. Pl. Ex. 3. The letter noted that most grant awards result from a competitive review process in response to a program announcement published in the Federal Register, but “on rare occasions, if an unsolicited application is determined to be of outstanding merit, it may receive consideration for funding without competition.” Kellaher asked Van Hanh to “review the application to determine whether or not it is within the scope of any program announcement issued or expected to be issued within ORR. If not, and you determine that the application is of such outstanding and unique merit that it should be considered for funding, follow the procedures set forth in the ACF GAM Section 2.11 to convene a panel.”

Kellaher noted that, if ORR decided to fund the application, the award required “the written approval of the Assistant Secretary for Children and Families and the Assistant Secretary for Administration and Management (ASAM) through the Grant Review Process.” Further, she wrote, “In accordance with Departmental Grants Policy Directive (GPD) 2.04, urgent and unsolicited grant applications must be published in the Federal Register simultaneously with the award of grants and must include at minimum: 1. Recipient name; 2. Amount of Award; 3 Project period; 4. Reason(s) for no competition; and 5. Name and address of the official to be contacted for more information on the award.” “The grant award package, including the Federal Register notice, must be submitted to the Division of Grants Policy for review and clearance by the Chief Grants Management Officer prior to submission to the Assistant Secretary for Children and Families.” ⁵

On May 7, 2003, Van Hanh, Director of ORR, sent a letter to the Director of Office of Planning, Research and Evaluation (“OPRE”), to inform him that ORR “would like to award an urgent application from [AFH] due to compelling circumstances.” Pl. Ex. 4; Docket no. 192 Ex. 2. The letter noted that, as a result of the transfer of responsibility for unaccompanied minors from the INS to ORR, ORR was “now faced with the urgent need to locate appropriate shelter care facilities as an alternative to secure detention” or risk violating the Flores settlement agreement.

The letter...