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U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:19-cv-05217-SRB

C.M. et al v. United States of America Assigned to: Senior Judge Susan R Bolton Interim Related Cases: 2:20-cv-00065-SRB
2:21-cv-00215-SMB Related Case: 2:20-cv-00065-SRB Cause: 28:2671 Federal Tort Claims Act

Date Filed: 09/19/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff
C.M. on her own behalf and of her minor child on behalf of B.M.

represented by Claudia Valenzuela American Immigration Council 1331 G St. NW, Ste. 200 Washington, DC 20005 202-507-7540 Email: cvalenzuela@immcouncil.org TERMINATED: 02/28/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel F Jacobson Arnold & Porter LLP - Washington, DC 601 Massachusetts Ave. NW Washington, DC 20001 202-942-5602 Fax: 202-942-5999 Email: daniel.jacobson@arnoldporter.com TERMINATED: 01/14/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David B Rosenbaum Osborn Maledon PA P.O. Box 36379 Phoenix, AZ 85067-6379

602-640-9000 Fax: 602-640-9050 Email: drosenbaum@omlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diana E Reiter Arnold & Porter Kaye Scholer LLP - New York, NY 250 W 55th St. New York, NY 10019 212-836-7452 Fax: 212-836-8689 Email: diana.reiter@arnoldporter.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Anne Reeder Arnold & Porter LLP - Washington, DC 601 Massachusetts Ave. NW Washington, DC 20001 202-942-5000 Fax: 202-942-5999 Email: emily.reeder@arnoldporter.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Jane Cone-Roddy Osborn Maledon PA P.O. Box 36379 Phoenix, AZ 85067-6379 602-640-9000 Email: econe-roddy@omlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emma Curtis Winger American Immigration Council Brookline, MA 1318 Beacon St., Ste. 18 Brookline, MA 02446

617-505-5375 Email: ewinger@immcouncil.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erik Christopher Walsh Arnold & Porter LLP - New York, NY 250 W 55th St. New York, NY 10019 212-836-8098 Email: erik.walsh@arnoldporter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harry K Fidler Arnold & Porter Kaye Scholer LLP - New York, NY 250 W 55th St. New York, NY 10019 212-836-7381 Fax: 212-836-8689 Email: harry.fidler@arnoldporter.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Howard Feinberg Kairys Rudovsky Messing Feinberg & Lin LLP Cast Iron Bldg. 718 Arch St., Ste. 501 Philadelphia, PA 19106 215-925-4400 Fax: 215-925-5365 Email: jfeinberg@krlawphila.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlyn Schaeffer Arnold & Porter Kaye Scholer LLP - New York, NY 250 W 55th St. New York, NY 10019

212-836-7725 Email: kaitlyn.schaeffer@arnoldporter.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Melloy Goettel American Immigration Council 1331 G St. NW, Ste. 200 Washington, DC 20005 202-507-7500 Email: kgoettel@immcouncil.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucy Sarah McMillan Arnold & Porter LLP - New York, NY 250 W 55th St. New York, NY 10019 212-836-7379 Fax: 212-836-8689 Email: Lucy.McMillan@arnoldporter.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Michael Fleming National Immigrant Justice Center 208 S LaSalle, Ste. 1300 Chicago, IL 60604 312-660-1628 Fax: 312-660-1500 Email: mfleming@heartlandalliance.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark A Osmond Arnold & Porter Kaye Scholer LLP - New York, NY 250 W 55th St. New York, NY 10019

212-836-7821 Fax: 212-836-8689 Email: Mark.Osmond@arnoldporter.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Kenney National Immigration Litigation Alliance 10 Griggs Terrace Brookline, MA 02446 617-819-4447 Email: mary@immigrationlitigation.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Stanton Jones Arnold & Porter LLP - Washington, DC 601 Massachusetts Ave. NW Washington, DC 20001 202-942-5563 Fax: 202-942-5999 Email: stanton.jones@arnoldporter.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tanya Eleni Kalivas Arnold & Porter Kaye Scholer LLP - New York, NY 250 W 55th St. New York, NY 10019 212-836-8090 Fax: 212-836-8689 Email: tanya.kalivas@arnoldporter.com TERMINATED: 08/04/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Travis Charles Hunt

Plaintiff
L.G. on her own behalf and of her minor child on behalf of B.G.

Osborn Maledon PA P.O. Box 36379 Phoenix, AZ 85067-6379 602-640-9357 Fax: 602-640-9050 Email: thunt@omlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Trina Realmuto National Immigration Litigation Alliance 10 Griggs Terrace Brookline, MA 02446 617-819-4444 Email: trina@immigrationlitigation.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Claudia Valenzuela (See above for address) TERMINATED: 02/28/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel F Jacobson (See above for address) TERMINATED: 01/14/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David B Rosenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diana E Reiter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Anne Reeder

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Jane Cone-Roddy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emma Curtis Winger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erik Christopher Walsh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harry K Fidler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Howard Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlyn Schaeffer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Melloy Goettel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucy Sarah McMillan (See above for address) LEAD ATTORNEY PRO HAC VICE

Plaintiff
M.R. on her own behalf and of her minor child

ATTORNEY TO BE NOTICED
Mark Michael Fleming (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark A Osmond (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Kenney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Stanton Jones (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tanya Eleni Kalivas (See above for address) TERMINATED: 08/04/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Travis Charles Hunt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Trina Realmuto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Claudia Valenzuela (See above for address) TERMINATED: 02/28/2021 LEAD ATTORNEY

on behalf of J.R.

ATTORNEY TO BE NOTICED
Daniel F Jacobson (See above for address) TERMINATED: 01/14/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David B Rosenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diana E Reiter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Anne Reeder (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Jane Cone-Roddy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emma Curtis Winger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erik Christopher Walsh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harry K Fidler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jonathan Howard Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlyn Schaeffer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Melloy Goettel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucy Sarah McMillan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Michael Fleming (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark A Osmond (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Kenney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Stanton Jones (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
O.A. on her own behalf and of her minor child on behalf of L.A.

Tanya Eleni Kalivas (See above for address) TERMINATED: 08/04/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Travis Charles Hunt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Trina Realmuto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Claudia Valenzuela (See above for address) TERMINATED: 02/28/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel F Jacobson (See above for address) TERMINATED: 01/14/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David B Rosenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diana E Reiter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Anne Reeder (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Emma Jane Cone-Roddy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emma Curtis Winger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erik Christopher Walsh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harry K Fidler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Howard Feinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlyn Schaeffer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Melloy Goettel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucy Sarah McMillan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Michael Fleming (See above for address)

Plaintiff
V.C. on her own behalf and of her minor child on behalf of G.A.

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark A Osmond (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Kenney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Stanton Jones (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tanya Eleni Kalivas (See above for address) TERMINATED: 08/04/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Travis Charles Hunt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Trina Realmuto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Claudia Valenzuela (See above for address) TERMINATED: 02/28/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel F Jacobson (See above for address)

TERMINATED: 01/14/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David B Rosenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diana E Reiter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Anne Reeder (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Jane Cone-Roddy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emma Curtis Winger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erik Christopher Walsh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harry K Fidler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Howard Feinberg (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Kaitlyn Schaeffer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Melloy Goettel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucy Sarah McMillan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Michael Fleming (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark A Osmond (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Kenney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Stanton Jones (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tanya Eleni Kalivas (See above for address) TERMINATED: 08/04/2020 LEAD ATTORNEY

V. Defendant United States of America

ATTORNEY TO BE NOTICED
Travis Charles Hunt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Trina Realmuto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Irina M Majumdar US Dept of Justice - Federal Tort Claims P.O. Box 888 Ben Franklin Station Washington, DC 20044 202-616-4285 Fax: 202-616-5200 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip Davis MacWilliams US Dept of Justice Torts Branch Civil Division PO Box 888 Ben Franklin Station Washington, DC 20044 202-616-4285 Fax: 202-616-5200 Email: phil.macwilliams@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theodore William Atkinson US Dept of Justice 450 5th St NW Washington, DC 20001 202-532-4135 Fax: 202-305-7000 Email: theodore.atkinson@usdoj.gov

Movant
Southwest Key Programs Incorporated

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Javier Macias Southwest Key Programs Incorporated 6002 Jain Lane Austin, TX 787821 512-277-2315 Email: javiermacias@swkey.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 09/19/2019

# Docket Text
1 COMPLAINT. Filing fee received: $ 400.00, receipt number 097017417079 filed by O.A., C.M., M.R., L.G., V.C..(Rosenbaum, David) (Attachments: # 1 Civil Cover Sheet)(ARC) (Entered: 09/19/2019)

09/19/2019 09/19/2019
09/19/2019

2 SUMMONS Submitted by C.M., L.G., M.R., O.A., V.C.. (Rosenbaum, David) (Attachments: # 1 Summons)(ARC) (Entered: 09/19/2019)
3 Filing fee paid, receipt number 0970-17417079. This case has been assigned to the Honorable Susan R Bolton. All future pleadings or documents should bear the correct case number: CV-19-5217-PHXSRB. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached. (ARC) (Entered: 09/19/2019)
4 NOTICE TO THE PARTIES - The Court is participating in the Mandatory Initial Discovery Pilot (MIDP) and this case is subject to that pilot. The key features and deadlines are set forth in the attached Notice which includes General Order 17-08. Also attached is a checklist for use by the parties. All parties must respond to the mandatory initial discovery requests set forth in the General Order before initiating any further discovery in this case. Please note: The discovery obligations in the General Order supersede the disclosures required by Rule 26(a)(1). Any party seeking affirmative relief must serve a copy of the attached documents (Notice to Parties, including General Order 17-08 and MIDP Checklist) on each new party when the Complaint, Counterclaim, Crossclaim, or Third-Party Complaint is served. (ARC) (Entered: 09/19/2019)

09/19/2019

5 Summons Issued as to United States of America. (Attachments: # 1 Summons)(ARC). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 09/19/2019)

09/19/2019

6 *MOTION for Protective Order, MOTION to Proceed under Pseudonyms by C.M., L.G., M.R., O.A., V.C. (Attachments: # 1 Text of Proposed Order)(Rosenbaum, David). *Added MOTION to Proceed under Pseudonyms on 9/20/2019 (REK). (Entered: 09/19/2019)

09/20/2019

Remark: Pro hac vice motion(s) granted for Emma Curtis Winger on behalf of Plaintiffs C.M., L.G., M.R., O.A., and V.C.. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/25/2019)

09/23/2019

7 PROTECTIVE ORDER and ORDER GRANTING MOTION TO PROCEED UNDER PSEUDONYMS [see attached Order for details]. Signed by Senior Judge Susan R Bolton on 9/23/19. (MAW) (Entered: 09/23/2019)

09/23/2019

Remark: Pro hac vice motion(s) granted for Mark Michael Fleming, Katherine Melloy Goettel, and Trina Realmuto on behalf of Plaintiffs C.M., L.G., M.R., O.A., and V.C.. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/23/2019)

09/23/2019

8 MOTION for Admission Pro Hac Vice as to attorney Jonathan H. Feinberg by C.M., L.G., M.R., O.A., V.C.. (Attachments: # 1 Certificate of Good Standing)(Feinberg, Jonathan) (Entered: 09/23/2019)

09/24/2019

9 SERVICE EXECUTED filed by C.M., L.G., M.R., O.A., V.C.: Certified Mail Receipt re: Summons; Complaint; Civil Cover Sheet; Motion to Proceed under Pseudonyms and for Protective Order with proposed Order granting same upon U.S. Attorney for District of Arizona (Michael Bailey) and U.S. Attorney General (William Barr) on 9/23/2019. (Rosenbaum, David) (Entered: 09/24/2019)

09/25/2019

10 ORDER pursuant to General Order 09-08 terminating 8 Motion for Admission Pro Hac Vice. Pro hac vice incorrectly filed into civil case without fee. Correctly Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 09/25/2019)

09/25/2019

Remark: Pro hac vice motion(s) granted for Jonathan Howard Feinberg on behalf of Plaintiffs C.M., L.G., M.R., O.A., and V.C.. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/25/2019)

09/27/2019

Remark: Pro hac vice motion(s) granted for Robert Stanton Jones, and Lucy Sarah McMillan on behalf of Plaintiffs C.M., L.G., M.R., O.A., and V.C.. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/27/2019)

09/30/2019

Remark: Pro hac vice motion(s) granted for Diana E Reiter on behalf of Plaintiffs C.M., L.G., M.R., O.A., and V.C. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/30/2019)

09/30/2019

11 SERVICE EXECUTED filed by C.M., L.G., M.R., O.A., V.C.: Affidavit of Service re: Order Granting Motion to Proceed Under Pseudonyms and for a Protective Order upon US Attorney General and US Attorney for District of Arizona on 9/28/19 and 9/30/19. (Rosenbaum, David) (Entered: 09/30/2019)

09/30/2019

Remark: Pro hac vice motion(s) granted for Claudia Valenzuela and Tanya Eleni Kalivas on behalf of Plaintiffs C.M., L.G., M.R., O.A., and V.C.. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/30/2019)

10/02/2019

Remark: Pro hac vice motion(s) granted for Daniel F Jacobson, Erik Christopher Walsh, and Kaitlyn Schaeffer on behalf of Plaintiffs C.M., L.G., M.R., O.A., and V.C.. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 10/02/2019)

10/02/2019

Remark: Pro hac vice motion(s) granted for Emily Anne Reeder on behalf of Plaintiffs C.M., L.G., M.R., O.A., and V.C.. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 10/02/2019)

10/04/2019

Remark: Pro hac vice motion(s) granted for Mary Kenney on behalf of Plaintiffs C.M., L.G., M.R., O.A., and V.C.. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 10/04/2019)

10/07/2019

12 Mail Returned as Undeliverable. Mail sent to Erik Walsh. Reason for return: Return to Sender: Attempted - Not Known - Unable to Forward. Document number 7. (REK) (Entered: 10/08/2019)

10/23/2019 13 NOTICE of Appearance by Travis Charles Hunt on behalf of C.M., L.G., M.R., O.A., V.C.. (Hunt, Travis) (Entered: 10/23/2019)

11/14/2019

14 *Joint MOTION for Extension of Time Extension to Respond to Complaint and MOTION for Enlargement of Page Limits by United States of America. (Attachments: # 1 Text of Proposed Order)(MacWilliams, Philip) *Modified to correct and add event; attorney noticed on 11/14/2019 (SLQ). (Entered: 11/14/2019)

11/15/2019 15 NOTICE of Appearance by Theodore William Atkinson on behalf of United States of America. (Atkinson, Theodore) (Entered: 11/15/2019)

11/15/2019 16 NOTICE of Appearance by Philip Davis MacWilliams on behalf of United States of America. (MacWilliams, Philip) (Entered: 11/15/2019)

11/18/2019

17 ORDER: IT IS HEREBY ORDERED that the Joint Motion for Extension of Time and For Enlargement of Page Limits (Doc. 14 ) is GRANTED as follows: The United States shall answer or otherwise respond to the Complaint no later than December 23, 2019. Any motion filed in response to the Complaint is limited to twenty-five (25) pages [see attached Order for details]. Signed by Senior Judge Susan R Bolton on 11/18/19. (MAW) (Entered: 11/18/2019)

12/23/2019 18 MOTION to Dismiss for Lack of Jurisdiction by United States of America. (MacWilliams, Philip) (Entered: 12/23/2019)

02/06/2020

19 RESPONSE to Motion re: 18 MOTION to Dismiss for Lack of Jurisdiction Plaintiffs' Opposition to Defendant's Motion to Dismiss filed by C.M., L.G., M.R., O.A., V.C.. (Rosenbaum, David) (Entered: 02/06/2020)

02/07/2020

20 MINUTE ORDER as to 18 MOTION to Dismiss for Lack of Jurisdiction : Motion Hearing is set for 3/24/2020 at 10:00 AM in Courtroom 502, 401 West Washington Street, Phoenix, AZ 85003 before Senior Judge Susan R Bolton. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA) (Entered: 02/07/2020)

02/14/2020

21 MOTION to Transfer Related Case by A.P.F., J.V.S.. (Attachments: # 1 Text of Proposed Order) (Associated Cases: CV-19-05217-PHXSRB, CV-20-00065-PHX-SMB) (Beauchamp, Keith) (Entered: 02/14/2020)

02/20/2020

22 RESPONSE to Motion re: (21 in 2:19-cv-05217-SRB, 21 in 2:19-cv05217-SRB) MOTION to Transfer Related Case filed by C.M., L.G., M.R., O.A., V.C.. (Associated Cases: 2:19-cv-05217-SRB, 2:20-cv00065-SMB) (Rosenbaum, David) (Entered: 02/20/2020)

02/27/2020 23 RESPONSE to Motion re: (21 in 2:19-cv-05217-SRB, 21 in 2:19-cv05217-SRB) MOTION to Transfer Related Case filed by United States

03/05/2020

of America. (Associated Cases: 2:19-cv-05217-SRB, 2:20-cv-00065SMB) (Atkinson, Theodore) (Entered: 02/27/2020)
24 REPLY to Response to Motion re: (21 in 2:19-cv-05217-SRB) MOTION to Transfer Related Case filed by A.P.F., J.V.S.. (Associated Cases: 2:20-cv-00065-SMB, 2:19-cv-05217-SRB) (Beauchamp, Keith) (Entered: 03/05/2020)

03/09/2020

25 REPLY to Response to Motion re: 18 MOTION to Dismiss for Lack of Jurisdiction filed by United States of America. (MacWilliams, Philip) (Entered: 03/09/2020)

03/17/2020

26 MOTION to Continue Motion Hearing Scheduled For March 24, 2020 by United States of America. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(MacWilliams, Philip) (Entered: 03/17/2020)

03/17/2020

27 ORDER: Due the COVID-19 pandemic; IT IS ORDERED that oral argument on Defendant's Motion to Dismiss scheduled for March 24, 2020 at 10:00 a.m. shall be telephonic only. No in person appearances. Counsel are directed to call (866) 390-1828; Access Code: 9667260 five minutes prior to the scheduled hearing. Counsel are advised that speaker phones and cell phones are not permitted. IT IS FURTHER ORDERED denying Defendant's Motion to Postpone Motion Hearing. (Doc. 26 ) Signed by Senior Judge Susan R Bolton on 3/17/20. (MAW) (Entered: 03/17/2020)

03/24/2020

28 MINUTE ENTRY for proceedings held before Senior Judge Susan R Bolton: Telephonic Motion Hearing held on 3/24/2020. Argument held. IT IS ORDERED taking under advisement 18 Motion to Dismiss.

APPEARANCES: Diana Reiter, Jonathan Feinberg, Katherine Goettel, Lucy McMillan, Trina Realmuto, David Rosenbaum and Erik Walsh (all appearing telephonically) for Plaintiffs. Philip MacWilliams (appearing telephonically) for Defendant. (Court Reporter Elaine Cropper) Hearing held 10:04 AM to 10:43 AM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 03/24/2020)

03/24/2020

29 REPLY to Response to Motion re: (21 in 2:19-cv-05217-SRB) MOTION to Transfer Related Case (Supplement) filed by A.P.F., J.V.S.. (Attachments: # 1 Exhibit 1) (Associated Cases: 2:20-cv-00065-SMB, 2:19-cv-05217-SRB) (Beauchamp, Keith) (Entered: 03/24/2020)

03/24/2020

30 TRANSCRIPT REQUEST by C.M., L.G., M.R., O.A., V.C. for proceedings held on 3/24/2020, Judge Susan R Bolton hearing judge(s). (Rosenbaum, David) (Entered: 03/24/2020)

03/30/2020

31 ORDER: IT IS ORDERED denying the United States' Motion and Memorandum in Support of the United States of America's Motion to Dismiss (Doc. 18 ) [see attached Order for details]. Signed by Senior Judge Susan R Bolton on 3/30/20. (MAW) (Entered: 03/30/2020)

03/31/2020

34 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of TELEPHONIC ORAL ARGUMENT proceedings held on 03/24/2020, before Judge SUSAN R. BOLTON. [Court Reporter: Elaine Cropper, RDR, CRR, CCP, Telephone number (602) 322-7245]. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/21/2020. Redacted Transcript Deadline set for 5/1/2020. Release of Transcript Restriction set for 6/29/2020. (RAP) (Entered: 04/06/2020)

04/02/2020

32 Consent MOTION for Extension of Time to File Answer by United States of America. (Attachments: # 1 Text of Proposed Order)(MacWilliams, Philip) (Entered: 04/02/2020)

04/02/2020

33 ORDER: IT IS ORDERED granting a one-time extension of time until May 13, 2020, to respond to complaint. The parties' obligations to produce the information called for in the MIDP will be triggered by Defendant's answer to the complaint after the extension. No further extensions will be granted. Signed by Senior Judge Susan R Bolton on 4/2/20. (MAW) (Entered: 04/02/2020)

04/14/2020 35 ORDER - IT IS ORDERED granting Plaintiffs' Motion to Transfer.

(Doc. 10 in CV20-00065 and Doc. 21 in CV19-05217). IT IS FURTHER ORDERED that counsel shall use the case number CV2000065-PHX-SRB for all further proceedings. Signed by Senior Judge Susan R Bolton on 4/13/2020. (Associated Cases: 2:19-cv-05217-SRB, 2:20-cv-00065-SMB) (WLP) (Entered: 04/14/2020)

05/05/2020 36 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Trina Realmuto. (Realmuto, Trina) (Entered: 05/05/2020)

05/13/2020 37 ANSWER to Complaint by United States of America.(MacWilliams, Philip) (Entered: 05/13/2020)

05/15/2020

38 ORDER: Pursuant to Rule 16 of the Federal Rules of Civil Procedure, a Case Management Conference is set for June 18, 2020, at 10:30 a.m. The Rule 16 Case Management Conference will be telephonic. Counsel shall not appear in person. Counsel are directed to call (866) 390-1828; Access Code: 9667260 five minutes prior to the scheduled hearing. Counsel are advised that speaker phones are not permitted [see attached Order for details]. Signed by Senior Judge Susan R Bolton on 5/15/20. (MAW) (Entered: 05/15/2020)

05/22/2020 39 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Katherine Melloy Goettel. (Goettel, Katherine) (Entered: 05/22/2020)

05/29/2020

40 MOTION for Leave to Appeal For Certifcation of Order Dated March 30, 2020 For Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) by United States of America. (Attachments: # 1 Text of Proposed Order)(MacWilliams, Philip) (Entered: 05/29/2020)

06/02/2020 41 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Mary Kenney. (Kenney, Mary) (Entered: 06/02/2020)

06/11/2020

42 Rule 26(f) Report for Mandatory Initial Discovery Pilot (MIDP) [JOINT CASE MANAGEMENT PLAN] filed by Plaintiffs C.M., L.G., M.R., O.A., V.C.. (Reiter, Diana) (Entered: 06/11/2020)

06/12/2020

43 NOTICE of Service of Responses to Mandatory Initial Discovery (MIDP) filed by Defendant United States of America. (MacWilliams, Philip) (Entered: 06/12/2020)

06/12/2020

44 RESPONSE in Opposition re: 40 MOTION for Leave to Appeal For Certifcation of Order Dated March 30, 2020 For Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) filed by C.M., L.G., M.R., O.A., V.C.. (Reiter, Diana) (Entered: 06/12/2020)

06/12/2020

45 NOTICE of Service of Responses to Mandatory Initial Discovery (MIDP) filed by Plaintiffs C.M., L.G., M.R., O.A., V.C.. (Reiter, Diana) (Entered: 06/12/2020)

06/17/2020

Remark: Pro hac vice motion(s) granted for Harry K Fidler on behalf of Plaintiffs C.M., L.G., M.R., O.A., V.C.. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 06/17/2020)

06/18/2020

46 MINUTE ENTRY for proceedings held before Senior Judge Susan R Bolton: Scheduling Conference held on 6/18/2020. Discussion held regarding discovery limitations. IT IS ORDERED directing counsel to confer and file a joint discovery plan no later than August 17,

2020, regarding requests for production of documents and an agreement regarding who will be deposed (identified by either name or description). Deadlines discussed. Rule 16 Scheduling Order to issue.

APPEARANCES: Jonathan Feinberg, Emma Cone-Roddy, Emily Reeder, Diana Reiter, Erik Walsh and Harry Fidler (all appearing telephonically) for Plaintiffs. Philip MacWilliams (appearing telephonically) for Defendant. (Court Reporter Hilda Lopez) Hearing held 10:32 AM to 11:11 AM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 06/18/2020)

06/18/2020

47 SCHEDULING ORDER: Discovery due by 6/11/2021. Dispositive motions due by 1/29/2022 [see attached Order for details]. Signed by Senior Judge Susan R Bolton on 6/18/20. (MAW) (Entered: 06/18/2020)

06/19/2020

48 REPLY to Response to Motion re: 40 MOTION for Leave to Appeal For Certifcation of Order Dated March 30, 2020 For Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) filed by United States of America. (MacWilliams, Philip) (Entered: 06/19/2020)

06/29/2020

49 NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) filed by Defendant United States of America. (MacWilliams, Philip) (Entered: 06/29/2020)

07/06/2020 50 ORDER: IT IS ORDERED denying Defendant United States' Motion for Certification of the Court's 3/30/20 Order Pursuant to 28 U.S.C. §

1292(b) (Doc. 40 ) [see attached Order for details]. Signed by Senior Judge Susan R Bolton on 7/6/20. (MAW) (Entered: 07/06/2020)

07/06/2020

51 TRANSCRIPT REQUEST by C.M., L.G., M.R., O.A., V.C. for proceedings held on June 18, 2020, Judge Susan R Bolton hearing judge(s). (Rosenbaum, David) (Entered: 07/06/2020)

07/08/2020

52 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of TELEPHONIC SCHEDULING CONFERENCE proceedings held on 06/18/2020, before Judge SUSAN R. BOLTON. [Court Reporter: Hilda E. Lopez, RMR, FCRR, Telephone number (602) 322-7256]. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/29/2020. Redacted Transcript Deadline set for 8/10/2020. Release of Transcript Restriction set for 10/6/2020. (RAP) (Entered: 07/13/2020)

07/14/2020

53 ORDER: On the request of counsel; IT SO ORDERED setting a Discovery Dispute Hearing on July 16, 2020 at 2:00 p.m. The discovery dispute hearing will be telephonic. Counsel shall not appear in person. Counsel are directed to call (866) 390-1828; Access code: 9667260 five minutes prior to the hearing. Counsel are advised that speaker phones are not permitted. Signed by Senior Judge Susan R Bolton on 7/14/20. (MAW) (Entered: 07/14/2020)

07/15/2020 54 Joint MOTION Entry of Rule 502(d) order by United States of America.

(Attachments: # 1 Text of Proposed Order)(MacWilliams, Philip) (Entered: 07/15/2020)

07/16/2020

55 MINUTE ENTRY for proceedings held before Senior Judge Susan R Bolton: Telephonic Discovery Dispute Hearing held on 7/16/2020 at the request of the parties. The Court is advised that the parties cannot agree on one part of a proposed protective order regarding the non-disclosure of confidential information by the government outside its use in this case. After hearing argument, the Court ordered that it would approve the non-disclosure provision proposed by Plaintiffs.

APPEARANCES: Jonathan Feinberg, Diana Reiter, David Rosenbaum and Erik Walsh (all appearing telephonically) for Plaintiffs. Philip MacWilliams (telephonically) for Defendant. (Court Reporter Hilda Lopez) Hearing held 1:58 PM to 2:09 PM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 07/17/2020)

07/17/2020

56 FEDERAL RULE OF EVIDENCE 502(d) ORDER [see attached Order for details]. Signed by Senior Judge Susan R Bolton on 7/17/20. (MAW) (Entered: 07/17/2020)

07/22/2020

57 Joint MOTION for Protective Order by C.M., L.G., M.R., O.A., V.C.. (Attachments: # 1 Text of Proposed Order Proposed Protective Order)(Rosenbaum, David) (Entered: 07/22/2020)

07/22/2020 58 PROTECTIVE ORDER [see attached Order for details]. Signed by Senior Judge Susan R Bolton on 7/22/20. (MAW) (Entered: 07/22/2020)

08/04/2020

59 * Notice of Attorney Withdrawal (No Longer With Firm Only) by C.M., L.G., M.R., O.A., V.C. . (Kalivas, Tanya) * Modified to correct event; attorney noticed on 8/5/2020 (LAD). (Entered: 08/04/2020)

08/17/2020

60 NOTICE re: Joint Discovery Plan by C.M., L.G., M.R., O.A., V.C. re: 47 Scheduling Order . (Attachments: # 1 Exhibit A)(Rosenbaum, David) (Entered: 08/17/2020)

08/25/2020

61 ORDER: In the Case Management Order entered on June 18, 2020 the Court ordered the parties to meet and prepare a discovery plan. (Doc. 47 ) Their Joint Discovery Plan was filed on August 18, 2020. The Court adopts and approves the Joint Discovery Plan with the limitations and clarifications detailed in this Order [see attached Order for details]. Signed by Senior Judge Susan R Bolton on 8/25/20. (MAW) (Entered: 08/25/2020)

10/13/2020

62 NOTICE re: of Subpoena Duces Tecum by C.M., L.G., M.R., O.A., V.C. Southwest Key Programs - Hacienda Del Sol. (Cone-Roddy, Emma) (Entered: 10/13/2020)

10/13/2020 63 NOTICE re: of Subpoena Duces Tecum by C.M., L.G., M.R., O.A., V.C. on Cayuga Centers. (Cone-Roddy, Emma) (Entered: 10/13/2020)

10/13/2020

64 NOTICE re: of Subpoena Duces Tecum by C.M., L.G., M.R., O.A., V.C. on Lutheran Social Services. (Cone-Roddy, Emma) (Entered: 10/13/2020)

11/05/2020 65 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Emma Curtis Winger. (Winger, Emma) (Entered: 11/05/2020)

11/09/2020

Remark: Pro hac vice motion(s) granted for Javier Macias on behalf of Movant Southwest Key Programs Incorporated. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 11/09/2020)

11/13/2020

66 *WITHDRAWN by Doc. 68 * MOTION to Quash Subpoena by Southwest Key Programs Incorporated. (Attachments: # 1 Text of Proposed Order)(Macias, Javier) Modified on 11/23/2020 (MAW). (Entered: 11/13/2020)

11/23/2020

67 MOTION to Withdraw 66 MOTION to Quash Subpoena by Southwest Key Programs Incorporated. (Attachments: # 1 Text of Proposed Order)(Macias, Javier) (Entered: 11/23/2020)

11/23/2020

68 ORDER: Having reviewed Southwest Key Programs, Inc.'s Motion to Withdraw Southwest Key Programs, Inc.'s Motion to Quash Subpoena Without Prejudice 67 , IT IS ORDERED that Southwest Key Programs, Inc.'s Motion to Quash Subpoena (Doc. 66 ), is hereby withdrawn without prejudice. Signed by Senior Judge Susan R Bolton on 11/23/20. (MAW) (Entered: 11/23/2020)

11/25/2020 69 STATUS REPORT by United States of America. (MacWilliams, Philip) (Entered: 11/25/2020)

11/25/2020

70 ORDER - IT IS ORDERED setting a telephonic status conference on December 3, 2020 at 10:30 for both cases. Counsel shall not appear in person. Counsel are directed to call (866) 390-1828; Access Code: 9667260 five minutes prior to the scheduled hearing. Counsel are advised that speaker phones are not permitted. Signed by Senior Judge Susan R Bolton on 11/25/20. (SLQ) (Entered: 11/25/2020)

11/30/2020

71 REQUEST re: Request for Leave to File Written Response to Status Report Filed by Defendant United States of America by Plaintiffs C.M., L.G., M.R., O.A.. (Reiter, Diana) (Entered: 11/30/2020)

12/01/2020

72 ORDER: The Court has reviewed Plaintiffs' Request for Leave to File Written Response to Status Report Filed by Defendant United States of America. IT IS ORDERED that Plaintiffs may file a written response to Defendant's Status Report no later than December 2, 2020. Signed by Senior Judge Susan R Bolton on 12/1/20. (MAW) (Entered: 12/01/2020)

12/02/2020 73 RESPONSE re: 69 Report - Status by Plaintiffs C.M., L.G., M.R., O.A., V.C.. (Reiter, Diana) (Entered: 12/02/2020)

12/03/2020

74 TRANSCRIPT REQUEST by C.M., L.G., M.R., O.A., V.C. for proceedings held on 12/3/2020, Judge Susan R Bolton hearing judge(s). (Rosenbaum, David) (Entered: 12/03/2020)

12/03/2020 75 MINUTE ENTRY for proceedings held before Senior Judge Susan R Bolton: Telephonic Status Conference held on 12/3/2020 regarding

Defendant's Status Report (Doc. 69 ). The Court advises counsel it is aware that Plaintiffs' counsel filed a response to the Status Report (Doc. 73 ) but has not had an opportunity to review the response. Discussion held regarding the status of discovery of electronically stored information. On the Court's own Motion, IT IS ORDERED continuing Telephonic Status Conference to December 10, 2020, at 11:30 a.m. (Arizona time). Counsel are directed to call (866) 390-1828; Access Code: 9667260. Counsel are advised that speaker phones are not permitted. IT IS FURTHER ORDERED directing counsel to submit a joint notice no later than Noon, December 9, 2020 (Arizona time), advising the Court the agreements the parties have reached and what area of disagreements still remain. Defense Counsel should be prepared to advise the Court at the December 10 conference of a proposed timeline to complete the review of the documents and of dates for rolling production of those documents.

APPEARANCES: Diana Reiter, Jonathan Feinberg, Harry Fidler, Lucy McMillan, David Rosenbaum and Erik Walsh (all appeairng

telephonically) for Plaintiffs. Philip MacWilliams (appeairng telephonically) for Defendant. (Court Reporter Linda Schroeder) Hearing held 10:34 AM to 11:07 AM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 12/04/2020)

12/04/2020

76 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of TELEPHONIC STATUS CONFERENCE proceedings held on 12/03/2020, before Judge SUSAN R. BOLTON. [Court Reporter: Linda Schroeder, RDR, CRR, Telephone number (602) 322-7249]. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/28/2020. Redacted Transcript Deadline set for 1/4/2021. Release of Transcript Restriction set for 3/4/2021. (RAP) (Entered: 12/07/2020)

12/08/2020

77 TRANSCRIPT REQUEST by United States of America for proceedings held on 12/3/2020, Judge Susan R Bolton hearing judge(s). (MacWilliams, Philip) (Entered: 12/08/2020)

12/09/2020

78 * STATUS REPORT [JOINT] by C.M., L.G., M.R., O.A., V.C.. (Reiter, Diana) * Document not in compliance with Local Rule; attorney noticed on 12/10/2020 (LAD). (Entered: 12/09/2020)

12/09/2020

79 NOTICE TO FILER OF DEFICIENCY re: 78 Report - Status filed by O.A., V.C., L.G., C.M., M.R.. Document not in compliance with LRCiv 7.1(a)(1). Please note for future filings. No further action is required. It is not necessary to refile. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (LAD) (Entered: 12/10/2020)

12/10/2020

80 TRANSCRIPT REQUEST by C.M., L.G., M.R., O.A., V.C. for proceedings held on 12/10/2020, Judge Susan R Bolton hearing judge(s). (Rosenbaum, David) (Entered: 12/10/2020)

12/10/2020

81 MINUTE ENTRY for proceedings held before Senior Judge Susan R Bolton: Telephonic Status Conference held on 12/10/2020. A telephonic status conference was held December 3, 2020, regarding Defendant's status report but was continued to this date in order for counsel to file a Joint Status Report to detail the status of ESI discovery, which has been

filed at Doc. 78 . Discussion held. IT IS ORDERED directing Defense counsel to produce to Plaintiffs no later than January 31,

2021, the Department of Justice documents along with the attorney/client privilege log of the documents being withheld. The issue of executive privilege will not be resolved at this time. IT IS FURTHER OERDERED affirming the deadline of December 31, 2020, for the production of Plaintiffs' specific ESI documents. Regarding the Technology Assisted Review Validation Process ("TAR"), IT IS ORDERED the TAR validation process shall be completed no later than January 15, 2021. Defense counsel will then be in a position to advise how long it will take Defense counsel to complete the production with a log and a realistic deadline by when Plaintiffs can expect to receive the documents on a rolling basis. IT IS FURTHER ORDERED directing counsel to file a Joint Status Report no later than February 1, 2021. A further telephonic status conference may be set after the Court reviews the joint status report.

APPEARANCES: Diana Reiter, Harry Fidler, David Rosenbaum, Kaitlyn Schaeffer and Erik Walsh (all appearing telephonically) for Plaintiffs. Philip MaWilliams (appearing telephonically) for Defendant. (Court Reporter Hilda Lopez) Hearing held 11:33 AM to 12:09 PM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) Modified on 12/11/2020 (MAW). (Entered: 12/11/2020)

12/13/2020

82 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of CONTINUED TELEPHONIC STATUS CONFERENCE proceedings held on 12/10/2020, before Judge SUSAN R. BOLTON. [Court Reporter: Hilda E. Lopez, RMR, FCRR, Telephone number (602) 322-7256]. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/4/2021. Redacted Transcript Deadline set for 1/13/2021. Release of Transcript Restriction set for 3/15/2021. (RAP) (Entered: 12/15/2020)

01/14/2021 83 NOTICE of Attorney Withdrawal Daniel F. Jacobson filed by Daniel F Jacobson. (Jacobson, Daniel) (Entered: 01/14/2021)

02/01/2021 84 STATUS REPORT [JOINT] by C.M., L.G., M.R., O.A., V.C.. (Reiter, Diana) (Entered: 02/01/2021)

02/12/2021

85 NOTICE re: SERVICE OF DISCOVERY RESPONSES & OBJECTIONS by C.M., L.G., M.R., O.A., V.C. . (Fidler, Harry) (Entered: 02/12/2021)

02/16/2021

86 ORDER: IT IS ORDERED that the deadline for substantial completion of the production of policy-level ESI and a privilege log is April 30, 2021. IT IS FURTHER ORDERED that the production of both the ESI and the privilege log be on a rolling basis [see attached Order for details]. Signed by Senior Judge Susan R Bolton on 2/16/21. (MAW) (Entered: 02/16/2021)

02/28/2021 87 NOTICE of Attorney Withdrawal Claudia Valenzuela filed by Claudia Valenzuela. (Valenzuela, Claudia) (Entered: 02/28/2021)

03/02/2021

88 ORDER: On the request of Plaintiffs; IT IS ORDERED setting a telephonic discovery dispute hearing on March 11, 2021 at 11:00 a.m. Counsel shall not appear in person. Counsel are directed to call (866) 390-1828; Access code 9667260 five minutes prior to the hearing. Counsel are advised that speaker phones are not permitted. Signed by Senior Judge Susan R Bolton on 3/2/21. (MAW) (Entered: 03/02/2021)

03/11/2021

89 MINUTE ENTRY for proceedings held before Senior Judge Susan R Bolton: Telephonic Discovery Dispute Hearing held on 3/11/2021 held at the request of Plaintiffs' counsel [see attached minute entry for details]. (Court Reporter Hilda Lopez) Hearing held 11:04 AM to 11:44 AM.(MAW) (Entered: 03/11/2021)

03/15/2021

Remark: Pro hac vice motion(s) granted for Mark A Osmond on behalf of Plaintiffs C.M., L.G., M.R., O.A., V.C.. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 03/15/2021)

03/16/2021

90 *MOTION to Transfer Related Case / Plaintiffs' Motion to Transfer to Judge Susan R. Bolton Pursuant to Local Rules of Civil Procedure 42.1 by B.A.D.J.. (Attachments: # 1 Text of Proposed Order, # 2 Proof of Service) (Associated Cases: CV-21-215-PHX-SMB, CV-20-00065SRB, CV-19-05217-SRB) (Almeling, David) *Modified docket text to reflect all case numbers that are subject of the LR 42 motion on 3/17/2021. (Entered: 03/16/2021)

03/18/2021

91 STATEMENT of Non-Opposition to B.A.D.J. Plaintiffs' Motion to Transfer re: 90 MOTION to Transfer Related Case / Plaintiffs' Motion to Transfer to Judge Susan R. Bolton Pursuant to Local Rules of Civil Procedure 42.1 by Plaintiffs C.M., L.G., M.R., O.A., V.C.. (Fidler, Harry) (Entered: 03/18/2021)

03/19/2021

92 MOTION to Compel PRODUCTION OF RELEVANT DOCUMENTS and MEMORANDUM IN SUPPORT by C.M., L.G., M.R., O.A., V.C.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Text of Proposed Order)(Reiter, Diana) (Entered: 03/19/2021)

03/19/2021

93 MOTION to Compel DISCOVERY WITHHELD BY THE GOVERNMENT BASED ON IMPROPER PRIVILEGE ASSERTIONS by C.M., L.G., M.R., O.A., V.C.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Text of Proposed Order)(Reiter, Diana) (Entered: 03/19/2021)

03/29/2021 94 NOTICE of Service of Discovery filed by C.M., L.G., M.R., O.A., V.C.. (Fidler, Harry) (Entered: 03/29/2021)

03/31/2021

95 Consent MOTION for Extension of Time to File Response/Reply as to 93 MOTION to Compel DISCOVERY WITHHELD BY THE GOVERNMENT BASED ON IMPROPER PRIVILEGE ASSERTIONS by United States of America. (Attachments: # 1 Text of Proposed Order)(MacWilliams, Philip) (Entered: 03/31/2021)

04/01/2021

96 ORDER granting 95 Motion for Extension of Time to File Response. The United States shall respond to Plaintiffs' motion to compel on or before April 9, 2021. Signed by Senior Judge Susan R Bolton on 4/1/21. (MAW) (Entered: 04/01/2021)

04/02/2021

97 RESPONSE in Opposition re: 92 MOTION to Compel PRODUCTION OF RELEVANT DOCUMENTS and MEMORANDUM IN SUPPORT filed by United States of America. (Attachments: # 1 Exhibit Declaration)(MacWilliams, Philip) (Entered: 04/02/2021)

04/09/2021

98 REPLY to Response to Motion re: 92 MOTION to Compel PRODUCTION OF RELEVANT DOCUMENTS and MEMORANDUM IN SUPPORT filed by C.M., L.G., M.R., O.A., V.C.. (Attachments: # 1 Text of Proposed Order)(Reiter, Diana) (Entered: 04/09/2021)

04/09/2021

99 RESPONSE in Opposition re: 93 MOTION to Compel DISCOVERY WITHHELD BY THE GOVERNMENT BASED ON IMPROPER PRIVILEGE ASSERTIONS filed by United States of America.

(Attachments: # 1 Exhibit Declaration, # 2 Exhibit Attachment

1 to Declaration, # 3 Exhibit Attachment 2 to Declaration, # 4

Exhibit Attachment 3 to Declaration, # 5 Exhibit Declaration)(MacWilliams, Philip) (Entered: 04/09/2021)

 
 Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 1 of 77

1 David B. Rosenbaum, 009819

2

Emma J. Cone-Roddy, 034285 OSBORN MALEDON, P.A.

3

2929 North Central Avenue, 21st Floor Phoenix, Arizona 85012-2793

4

(602) 640-9000 drosenbaum@omlaw.com

5 econe-roddy@omlaw.com

6 (Additional Counsel for Plaintiffs Listed on the Following Page)

7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

8

9

C.M., on her own behalf and on behalf of her minor child, B.M.; L.G., on her own

No.

10 behalf and on behalf of her minor child, B.G.; M.R., on her own behalf and on
11 behalf of her minor child, J.R.; O.A., on

COMPLAINT

12

her own behalf and on behalf of her minor child, L.A.; and V.C., on her own

13 behalf and on behalf of her minor child,

14 G.A.,

15

Plaintiffs,

16 v.

17 United States of America,

18

Defendant.

19

20

21

22

23

24

25

26

27

28

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 2 of 77

1

2 R. Stanton Jones*

Jonathan H. Feinberg*

3 Daniel Jacobson*

Kairys, Rudovsky, Messing, Feinberg

Emily Reeder* 4 Arnold & Porter Kaye Scholer LLP

& Lin LLP The Cast Iron Building

5

601 Massachusetts Avenue, NW Washington, DC 20001

718 Arch Street, Suite 501 South Philadelphia, PA 19106

6 202-942-5000

215-925-4400

7

stanton.jones@arnoldporter.com daniel.jacobson@arnoldporter.com

jfeinberg@krlawphila.com

8 emily.reeder@arnoldporter.com 9 Lucy McMillan*

Mark Fleming* Katherine Melloy Goettel* National Immigrant Justice Center

10

Diana Reiter* Erik Walsh*

224 S. Michigan Ave., Suite 600 Chicago, IL 60604

11 Tanya Kalivas*

312-660-1370

12

Kaitlyn Schaeffer* Arnold & Porter Kaye Scholer LLP

mfleming@heartlandalliance.org kgoettel@heartlandalliance.org

13 250 West 55th Street | New York, New

York 10019-9710

Trina Realmuto*

14 212-836-8000

Emma Winger*

15

lucy.mcmillan@arnoldporter.com diana.reiter@arnoldporter.com

American Immigration Council 1318 Beacon Street, Suite 18

16 erik.walsh@arnoldporter.com

Brookline, MA 02446

17

tanya.kalivas@arnoldporter.com kaitlyn.schaeffer@arnoldporter.com

857-305-3600 trealmuto@immcouncil.org

18

ewinger@immcouncil.org

19

Mary Kenney*

20

Claudia Valenzuela* American Immigration Council

21

1331 G Street NW, Suite 200

22

Washington, DC 20005 202-507-7512

23

202-742-5619

mkenney@immcouncil.org

24

cvalenzuela@immcouncil.org

25

26 * Pro hac vice application forthcoming

27

28

ii

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 3 of 77

1

INTRODUCTION

2

1. This matter concerns an unprecedented policy issued at the highest

3

4 levels of the federal government to separate asylum-seeking parents from their

5 children. The government’s policy of forcibly taking children from their parents

6 caused extraordinary trauma to thousands of families, including Plaintiffs—five
7 mothers and their respective five children, who at the time of separation were between 8 9 five and twelve years old, and who were separated for months. The trauma suffered
10 by Plaintiffs and other parents and children was no incidental byproduct of the policy.

11 It was the very point. The government sought to inflict emotional distress in order to

12 deter parents and children from seeking asylum in this country.

13

14

2. Executive branch officials intended to use the trauma resulting from

15 family separations, and media reporting about that trauma, to deter future asylum

16 seekers. Federal officials at the highest levels made repeated public statements

17 acknowledging the policy’s purpose. Despite widespread condemnation and a federal 18
court injunction requiring the government to reunite separated families and stop 19
20 further separations, President Trump has continued to defend the policy as a deterrent

21 to migration from Central America, such as when he tweeted, “[I]f you don’t separate,

22 FAR more people will come.”1 23

24

1 Donald Trump (@realdonaldtrump), TWITTER (Dec. 16, 2018, 11:25 AM), 25 https://twitter.com/realDonaldTrump/status/1074339834351759363 (emphasis in

26

original); see also Kimberly Kindy, Nick Miroff & Maria Sacchetti, Trump Says Ending Family Separation Practice Was a “Disaster” That Led to Surge in Border

27 Crossings, WASH. POST, Apr. 28, 2019, https://washingtonpost.com/politics/trump-

28

says-ending-family-separation-practice-was-a-disaster-that-led-to-surge-in-bordercrossings/2019/04/28/73e9da14-69c8-11e9-a66d-a82d3f3d96d5story.html.

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 4 of 77

1

3. In total, the government has acknowledged that it has separated at least

2 3,800 children from their parents or guardians after they crossed the southwestern 3 4 U.S. border.2 Additional government reporting indicates that the number of families

5 separated likely is much higher.3

6

4. After taking children from their parents, the government inflicted

7 further trauma when it delayed providing information to parents and children of each 8
9 other’s whereabouts or well-being, failed to facilitate adequate communication

10 between the parents and children during their separation, and failed to implement any

11 system for tracking the children to ensure that the families could be reunited.

12

5. The ten Plaintiffs in this action fell victim to the Administration’s policy

13

14 in May 2018, when federal officers forcibly separated each Plaintiff mother from her

15 child while they were detained at various immigration holding centers in Arizona.

16 Each family remained separated for more than two months. Throughout that time, the
17 government provided only limited information to each mother about her child’s 18 19 whereabouts and well-being and afforded only minimal opportunities for each mother 20 and child to communicate, sometimes at the mother’s expense. As a result of the

21

2 Joint Status Report at 1, 10, Ms. L. v. U.S. Immigration and Customs Enf’t, No. 1822 cv-00428 DMS MDD (S.D. Cal. Sept. 9, 2019), ECF No. 465 (the government

23

acknowledged that, for the original class, as many as 2,814 children were separated from their parents, and has so far acknowledged an additional 986 children as part of

24 the expanded class); see also OFFICE OF THE INSPECTOR GENERAL, U.S. DEP’T OF

25

HEALTH & HUMAN SERVS., OEI-BL-18-00511, SEPARATED CHILDREN PLACED IN OFFICE OF REFUGEE RESETTLEMENT CARE 11 (Jan. 17, 2019) [hereinafter HHS OIG

26 REPORT I].

3 See HHS OIG REPORT I, supra note 2, at 1, 6, 13 (reporting that “thousands of 27 children may have been separated . . . before the accounting required by the Court [in

28 Ms. L.]”).

2

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 5 of 77

1 government’s actions, all Plaintiffs suffered, and continue to suffer, substantial and

2 ongoing trauma.

3

4

6. The government’s family separation policy was cruel and inhumane,

5 and it was unlawful. The United States is liable for the conduct which harmed

6 Plaintiffs under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1), 2671, et seq.

7 (“FTCA”).

8

9

7. Plaintiffs bring this action under the FTCA seeking compensation for

10 the extraordinary harms they suffered at the hands of the federal government.

11

JURISDICTION AND VENUE

12

8. This Court has jurisdiction over the subject matter of this Complaint

13 under 28 U.S.C. §§ 1331, 1346(b).
14

15

9. On February 11, 2019, Plaintiffs submitted administrative claims to the

16 U.S. Department of Homeland Security (“DHS”) and the U.S. Department of Health

17 and Human Services (“HHS”). Neither agency has made a final disposition of any 18
Plaintiff’s administrative claim and, as six months have passed since Plaintiffs’ 19 20 submission of the claims, they are deemed finally denied. 28 U.S.C. § 2675(a).

21 Accordingly, Plaintiffs have exhausted all potential administrative remedies.

22

10. Venue is proper in this District under 28 U.S.C. § 1402(b) as the acts

23 and omissions which are the subject of this Complaint occurred in this District.
24

25

PARTIES

26

11. Plaintiff C.M., now 29 years old, was 27 years old at the time of the

27 forced separation described in this Complaint. She is the mother of Plaintiff B.M.,

28

3

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 6 of 77

1 now seven years old, who was five years old at the time of the separation. C.M. and
2 B.M. are nationals of Guatemala and are presently seeking asylum in the United 3 4 States. They reside in the United States.

5

12. Plaintiff L.G., now 24 years old, was 23 years old at the time of the

6 forced separation described in this Complaint. She is the mother of Plaintiff B.G.,
7 now eight years old, who was seven years old at the time of the separation. L.G. and 8 9 B.G. are nationals of Guatemala and are presently seeking asylum in the United
10 States. They reside in the United States.

11

13. Plaintiff M.R., now 35 years old, was 34 years old at the time of the

12 forced separation described in this Complaint. She is the mother of Plaintiff J.R., now
13 14 14 years old, who was 12 years old at the time of the separation. M.R. and J.R. are

15 nationals of Guatemala and are presently seeking asylum in the United States. They

16 reside in the United States.

17

14. Plaintiff O.A., now 26 years old, was 25 years old at the time of the

18

19 forced separation described in this Complaint. She is the mother of Plaintiff L.A.,

20 now six years old, who was five years old at the time of the separation. O.A. and L.A.

21 are nationals of Guatemala and are presently seeking asylum in the United States.

22 They reside in the United States.

23

24

15. Plaintiff V.C., now 24 years old, was 23 years old at the time of the

25 forced separation described in this Complaint. She is the mother of Plaintiff G.A.,

26 now eight years old, who was six years old at the time of the separation. V.C. and

27

28

4

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 7 of 77

1 G.A. are nationals of Guatemala and are presently seeking asylum in the United

2 States. They reside in the United States.

3

4

16. Defendant United States of America is the appropriate defendant under

5 the FTCA. 28 U.S.C. §§ 1346(b), 2671, et seq.

6

17. All federal officers referenced in this Complaint were at all relevant

7 times employees of the United States, working within the scope and course of their 8
9 employment with federal agencies including, but not limited to, DHS, U.S.

10 Immigration and Customs Enforcement (“ICE”), U.S. Customs and Border Protection

11 (“CBP”), and HHS.

12

18. DHS employees were responsible for separating C.M., L.G., M.R.,

13

14 O.A., and V.C. from their children. DHS employees also are responsible for

15 supervising and managing detained individuals at CBP and ICE facilities, including

16 those located in Arizona, California, Nevada, and Texas where C.M., L.G., M.R.,

17 O.A., and V.C. were detained during the course of their separations from their 18 19 children. In addition, DHS employees are responsible for supervising and managing
20 detained individuals at the South Texas Family Residential Center in Dilley, Texas

21 (“Dilley”) where Plaintiffs were detained after they were reunited.

22

19. HHS employees are responsible for supervising and managing the

23

24 detention of children the government classifies as unaccompanied, including at

25 facilities in New York and Arizona, where B.M., B.G., J.R., L.A., and G.A. were

26 detained while they were separated from their mothers.

27

28

5

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 8 of 77

1

20. At all relevant times, all DHS employees referenced in this Complaint

2 who interacted with Plaintiffs were acting as investigative or law enforcement 3 4 officers. 28 U.S.C. § 2680(h).

5

STATEMENT OF FACTS

6

A. The Family Separation Policy

7

1. The Development of the Separation Policy and Its Intent To

8

Deter Future Central American Asylum Seekers

9

21. Curbing the number of individuals seeking asylum in the United States

10 has been a central focus of the Trump Administration’s immigration policy.4 11

12 4 See, e.g., U.S. Judge Bars Trump Administration From Enforcing Asylum Ban,

13 CNBC, Nov. 20, 2018, https://www.cnbc.com/2018/11/20/immigration-policy-judgebars-us-from-enforcing-trump-asylum-ban.html; Shaw Drake & Edgar Saldivar,

14 Trump Administration Is Illegally Turning Away Asylum Seekers, ACLU, Oct. 30,

15

2018, https://www.aclu.org/blog/immigrants-rights/trump-administration-illegallyturning-away-asylum-seekers; Nick Miroff & Josh Dawsey, The Advisor Who Scripts

16 Trump’s Immigration Policy, WASH. POST, Aug. 17, 2019,

17

https://www.washingtonpost.com/graphics/2019/politics/stephen-miller-trumpimmigration/; Emma Platoff, Alexa Ura, Jolie McCullough & Darla Cameron, While

18 Migrant Families Seek Shelter From Violence, Trump Administration Narrows Path to Asylum, TEXAS TRIBUNE, July 10, 2018,

19 https://www.texastribune.org/2018/07/10/migrant-families-separated-border-crisis-

20

asylum-seekers-donald-trump/; Maria Sacchetti, Felicia Sonmez & Nick Miroff, Trump Tightens Asylum Rules, Will Make Immigrants Pay Fees to Seek Humanitarian

21 Refuge, WASH. POST, Apr. 30, 2019, https://www.washingtonpost.com/politics/trump-

issues-memo-calling-for-changes-to-handling-of-asylum-cases/2019/04/29/df41b5f222 6adb-11e9-be3a-

23

33217240a539_story.html?noredirect=on&utm_term=.5e3bcec9eead; Glenn Thrush, U.S. to Begin Blocking Asylum Seekers From Entering Over Mexican Border, N.Y.

24 TIMES, Jan. 24, 2019, https://www.nytimes.com/2019/01/24/us/politics/migrants-

25

blocked-asylumtrump.html?action=click&module=Top%20Stories&pgtype=Homepage; Yeganeh

26 Torbati & Kristina Cooke, Trump Administration Moves to Curb Migrants’ Asylum

Claims, REUTERS, Nov. 8, 2018, https://www.reuters.com/article/us-usa-immigration27 asylum/trump-administration-moves-to-curb-migrants-asylum-claims-

28 idUSKCN1ND35K.

6

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 9 of 77

1

22. To that end, in July 2017, the government established a family

2 separation pilot program in CBP’s El Paso sector, through which it targeted for 3 4 criminal prosecution parents who crossed the border with children.5 It detained the

5 parents and forcibly took their children away from them, designated the children as

6 unaccompanied minors (despite their arriving with their parents), and placed the
7 children in the custody of the Office of Refugee Resettlement (“ORR”), a component 8 9 of HHS. Through this initiative, the government separated 281 individuals in families
10 between July and November 2017.6

11

23. In December 2017, a month after the pilot program ended, senior

12 officials at the Department of Justice and DHS exchanged a memorandum titled 13 14 “Policy Options to Respond to Border Surge of Illegal Immigration.”7 Two of the

15 policies outlined in the memorandum were titled: “Increased Prosecution of Family

16 Unit Parents” and “Separate Family Units.” Under the prosecution policy, the
17 memorandum stated that “parents would be prosecuted for illegal entry . . . and the 18 19 minors present with them would be placed in HHS custody as [unaccompanied alien 20 children].” Similarly, according to the memorandum, the separation policy would call

21

22 5 HHS OIG REPORT I, supra note 2, at 3.

23

6 Id. 7 Policy Options to Respond to Border Surge of Illegal Immigration, (Dec. 16, 2017),

24 https://www.documentcloud.org/documents/5688664-Merkleydocs2.html (hereinafter

25

“Policy Options”); see also Julia Ainsley, Trump Admin Weighed Targeting Migrant Families, Speeding Up Deportation of Children, NBC NEWS, Jan. 17, 2019,

26 https://www.nbcnews.com/politics/immigration/trump-admin-weighed-targeting-

migrant-families-speeding-deportation-children-n958811 (explaining that the 27 December 2017 policy options draft plan was made public by the office of Senator

28 Jeff Merkley).

7

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 10 of 77

1 for an announcement that adults would be placed in adult detention while children
2 would be placed in HHS custody.8 The memorandum asserted that “the increase in 3 4 prosecutions would be reported by media and it would have substantial deterrent
5 effect.”9

6

24. On April 6, 2018, President Trump issued a memo entitled “Ending

7 ‘Catch and Release’ at the Border of the United States and Directing Other
8 9 Enhancements to Immigration Enforcement.”10 The memo, among other things,

10 directed the Secretary of Homeland Security, the Secretary of Defense, the Attorney

11 General, and the Secretary of Health and Human Services to submit a report to the

12 President detailing all of the measures their respective departments had pursued or 13 14 were pursuing to end “‘catch and release’ practices.”11

15

25. “Catch and Release” is a simplified, misleading term that refers to a

16 federal practice that various administrations have implemented allowing asylum-
17 seekers, among other groups of immigrants, to live in the community, rather than be 18 19 held in government custody, while awaiting their immigration hearings.12 This 20 practice is fully in accord with immigration law.

21

22

23 8 Policy Options, supra note 7.

24 9 See id.

25

10 83 Fed. Reg. 16,179 (Apr. 6, 2018). 11 Id.

26 12 Katie Benner & Charlie Savage, Due Process for Undocumented Immigrants,

Explained, N.Y. TIMES, June 25, 2018, 27 https://www.nytimes.com/2018/06/25/us/politics/due-process-undocumented-

28 immigrants.html.

8

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 11 of 77

1

26. On the same day that President Trump issued his directive, then-

2 Attorney General Jeff Sessions announced that the government would institute a 3 4 “Zero Tolerance” policy, mandating the prosecution of all persons who crossed the

5 United States border between ports of entry, thereby extending to the entire southern

6 border the practices of criminal prosecution and family separation previously tested in

7 the El Paso pilot program.13 Consistent with its announcement, the Administration 8
9 promptly began separating families along the entire border.

10

27. The purpose of this policy was to deter individuals from seeking asylum

11 or otherwise coming to the United States.14 The Administration intended to deter

12 immigration by harming families through the forcible separation of parents and
13 14 children.

15

28. The Administration knew that separation would cause enormous trauma

16 to the children and parents. Indeed, the Administration intended that publicity
17 concerning the trauma suffered by asylum seekers would deter other would-be asylum 18 19 seekers from seeking refuge in the United States for fear of suffering the same fate. 20 Administration officials at the highest levels thus planned and implemented a policy

21 of separating families both knowing that the policy would cause severe harm to the

22

23

24 13 Attorney General Announces Zero Tolerance Policy for Criminal Illegal Entry,

25

DEP’T OF JUSTICE (Apr. 6, 2018), https://www.justice.gov/opa/pr/attorney-generalannounces-zero-tolerance-policy-criminal-illegal-entry.

26 14 See 60 Minutes, Chaos on the Border, Robots to the Rescue, To Kill a Mockingbird

(CBS Television Broadcast Nov. 25, 2018) (revealing an un-redacted copy of the 27 memo implementing the “Zero Tolerance” policy that stated that the policy’s purpose

28

was deterrence); see also Policy Options, supra note 7. 9

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 12 of 77

1 people it affected and specifically intending that it would cause such harm.15 For

2 example:

3

4

a. In September 2016, the DHS Advisory Committee on Family

5

Residential Centers issued a report that concluded that “[t]he best

6

interests of the child should be paramount in all custody decisions

7

regarding family members apprehended by DHS,” and warned that

8

9

“separation of families for purposes of immigration enforcement or

10

management, or detention is never in the best interest of children.”16

11

b. Commander Jonathan White, former Deputy Director of ORR for the

12

Unaccompanied Alien Children’s (“UAC”) Program, testified before

13

14

Congress that, starting in February 2017, he repeatedly warned those

15

devising the policy that separating children from their parents would

16

likely harm the children, including “significant potential for traumatic

17

psychological injury to the child.”17 Administration officials ignored

18

19

20

15 Policy Options, supra note 7; see also Philip Bump, Here Are the Administration Officials Who Have Said that Family Separation Is Meant as a Deterrent, WASH.

21 POST, June 19, 2018, https://www.washingtonpost.com/news/politics/wp/2018/06/19/here-are-the-
22 administration-officials-who-have-said-that-family-separation-is-meant-as-a-

23

deterrent/?utm_term=.6fce092b57af. 16 U.S. IMMIGRATION & CUSTOMS ENF’T, DEP’T OF HOMELAND SEC., REP. OF THE

24 DHS ADVISORY COMMITTEE ON FAMILY RESIDENTIAL CENTERS 2 (2016), available

25

at https://www.ice.gov/sites/default/files/documents/Report/2016/ACFRC-sc16093.pdf.

26 17 Jeremy Stahl, The Trump Administration Was Warned Separation Would Be Horrific for Children, Did It Anyway, SLATE, July 31, 2018, https://slate.com/news-
27 and-politics/2018/07/the-trump-administration-was-warned-separation-would-be-

28

horrific-for-children.html; see also Examining the Failures of the Trump 10

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 13 of 77

1

Commander White’s warnings up through the day he left ORR (on

2

March 15, 2018), just weeks before the policy was launched across the

3

4

entire southern border, and continued to disregard his warnings

5

thereafter.

6

c. In March 2017, several DHS officials told the press that the department

7

was considering a policy of separating mothers and children who cross

8

9

the border illegally in order to deter families from migrating to the

10

United States.18 The day after the press report, the American Academy

11

of Pediatrics responded with a statement opposing DHS’s proposed

12

family separation program, warning that:

13

14

Federal authorities must exercise caution to ensure that the emotional and physical stress children experience as they seek

15

refuge in the United States is not exacerbated by the additional

trauma of being separated from their siblings, parents or other

16

relatives and caregivers. Proposals to separate children from their

17

families as a tool of law enforcement to deter immigration are harsh and counterproductive. We urge policymakers to always be

18

mindful that these are vulnerable, scared children.19

19

29. Moreover, it is well established that forcibly separating families causes

20 severe harm to children. Scientific and medical evidence shows that the trauma 21

22 Administration’s Inhumane Family Separation Policy: Hearing Before the Subcomm.

23

on Oversight & Investigations of the H. Comm. on Energy & Commerce, 116th Cong. (Feb. 7, 2019) (testimony of Commander Jonathan White).

24 18 Julia Edwards Ainsley, Exclusive: Trump Administration Considering Separating

25

Women, Children at Mexico Border, REUTERS (Mar. 3, 2017), https://www.reuters.com/article/us-usa-immigration-children-idUSKBN16A2ES.

26 19 Fernando Stein & Karen Remley, Am. Acad. Of Pediatrics, AAP Statement

Opposing Separation of Mothers and Children at the Border (Mar. 4, 2017), 27 https://www.aap.org/en-us/about-the-aap/aap-press-

28

room/Pages/immigrantmotherschildrenseparation.asp. 11

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 14 of 77

1 caused by separating a child from his or her parent is likely to have extraordinarily

2 harmful and long-lasting effects on the child’s development. Such trauma can cause 3 4 permanent emotional and behavioral problems and brain damage.20

5

30. In May 2018, extensive media reporting concerning the separation

6 policy began to generate public outrage and condemnation. In the face of this
7 reaction, Administration officials attempted to change their messaging about the 8

9

10

20 See, e.g., Allison Abrams, Damage of Separating Families: The Psychological Effects on Children, PSYCHOL. TODAY (June 22, 2018),

11 https://www.psychologytoday.com/us/blog/nurturing-self-

12

compassion/201806/damage-separating-families (Children who are separated from a parent “develop insecure/disorganized attachment and persisting high levels of

13 stress.”); id. (“[T]he effects of mother-child separation on children’s aggressive behavior are early and persistent.”); Sarah Reinstein, Family Separations and the
14 Intergenerational Transmission of Trauma, CLINICAL PSYCHIATRY NEWS (July 9,

15

2018), https://www.mdedge.com/psychiatry/article/169747/depression/familyseparations-and-intergenerational-transmission-trauma (“[C]hildhood trauma is

16 associated with emotional dysregulation, aggression against self and others,

17

difficulties in attention and dissociation, medical problems, and difficulty with navigating adult interpersonal relationships.”); Jeremy Raff, “The Separation Was So

18 Long. My Son Has Changed So Much.”: U.S. Border Guards Took a 6-Year-Old Honduran Boy from His Mother, and Ultimately Returned a Deeply Traumatized
19 Child, THE ATLANTIC, Sept. 7, 2018,

20

https://www.theatlantic.com/politics/archive/2018/09/trump-family-separationchildren-border/569584/ (“The trauma of separation ‘can disrupt the architecture of a

21 child’s brain[.]’ . . . Prolonged separation weaponizes a child’s fight-or-flight response, elongating it into toxic stress that can damage health in both the short and
22 long term[.]”); Olga Khazan, Separating Kids From Their Families Can Permanently

23 Damage Their Brains: A Pediatrician Explains How the Trauma of Family Separation Can Change Biology, THE ATLANTIC, June 22, 2018,
24 https://www.theatlantic.com/health/archive/2018/06/how-the-stress-of-separation-

25

affects-immigrant-kids-brains/563468/ (Separating a child from his or her parents “can permanently affect . . . children’s brains, especially if it occurs early in

26 childhood. . . . Studies show that high levels of cortisol[, a stress hormone induced by separation] . . . can suppress the immune system and change the architecture of a
27 developing brain[.] . . . Another stress chemical, corticotropin-releasing hormone, can

28

damage the hippocampus, which plays a major role in learning and memory.”). 12

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 15 of 77

1 policy; they claimed their hardline stance on prosecuting border crossings was not

2 intended to discourage immigration, and, shockingly, they even denied the existence 3 4 of a family separation policy.21

5

31. These statements, however, were contradicted by the admissions of

6 numerous high-level officials that family separation was the express policy and that

7 the purpose of the policy was to harm asylum seekers arriving in the United States so 8
9 as to deter future asylum seekers. For instance:

10

a. When asked about the policy by NPR on May 11, 2018, John Kelly,

11

President Trump’s then-Chief of Staff, responded that “a big name

12

of the game is deterrence. . . . It could be a tough deterrent — would

13

14

be a tough deterrent.”22 As for the children affected, he said: “[t]he

15

children will be taken care of — put into foster care or whatever.”23

16

b. On June 18, 2018, on Fox News’s “The Ingraham Angle,” host

17

Laura Ingraham asked then-Attorney General Jeff Sessions, “is this

18

19

policy in part used as a deterrent? Are you trying to deter people

20

from bringing children or minors across this dangerous journey? Is

21

22 21 See Christina Wilkie, White House Denies Separating Families Is “Policy,” but

23

Insists It Is Needed “to Protect Children,” CNBC, Jun. 18, 2018, https://www.cnbc.com/2018/06/18/white-house-denies-separating-families-is-

24 policy.html; The Way Forward on Border Security: Hearing Before the H. Comm. on

25

Homeland Sec., 116th Cong. 46-47, 48 (Mar. 6, 2019) (statement of Sec’y Kristjen Nielsen, Dep’t of Homeland Sec.).

26 22 Transcript: White House Chief of Staff John Kelly’s Interview with NPR, NPR, May

11, 2018, https://www.npr.org/2018/05/11/610116389/transcript-white-house-chief27 of-staff-john-kellys-interview-with-npr.

28 23 Id. (emphasis added).

13

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 16 of 77

1

that part of what the separation is about?” Sessions replied, “I see

2

that the fact that no one was being prosecuted for this as a factor in a

3

4

five-fold increase in four years in this kind of illegal immigration.

5

So yes, hopefully people will get the message and come through the

6

border at the port of entry and not break across the border

7

unlawfully.”24

8

9

c. On June 19, 2018, Steven Wagner, Assistant Secretary of HHS, told

10

reporters that “[w]e expect that the new policy will result in a

11

deterrence effect, we certainly hope that parents stop bringing their

12

kids on this dangerous journey and entering the country illegally.”25

13

14

32. Even after a federal judge enjoined the family separation policy,

15 concluding that the separated parents would likely succeed on their claim that the

16 separations were unconstitutional,26 President Trump continued to claim that the
17 separation policy, and its intended deterrent effect, was a necessary component of 18 19 federal immigration enforcement:

20

21

22

23

24

25 24 The Ingraham Angle (Fox News television broadcast Jun. 18, 2018), available at

26 https://video.foxnews.com/v/5799065216001/#sp=show-clips.

25 Bump, supra note 15. 27 26 Ms. L. v. U.S. Immigrations and Customs Enf’t, 310 F. Supp. 3d 1133, 1142-45,

28

1149 (S.D. Cal. 2018), modified 330 F.R.D. 284 (S.D. Cal. 2019). 14

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 17 of 77

1

a. When speaking with reporters at the White House on October 13,

2

2018, he said: “If they feel there will be separation, they don’t

3

4

come.”27

5

b. On December 16, 2018, he tweeted, “[I]f you don’t separate, FAR

6

more people will come.”28

7

c. And on April 28, 2019—after the family separation policy had

8

9

purportedly ended—he told Fox News host Maria Bartiromo, “Now

10

you don’t get separated, and while that sounds nice and all, what

11

happens is . . . literally you have ten times as many families coming

12

up because they’re not going to be separated from their

13

14

children[.] . . . It’s a disaster.”29

15

33. Accordingly, from 2017 through the time period at issue in this

16 Complaint, senior government officials made the express choice to intentionally cause

17 parents and children, including very small children, extraordinary pain and suffering 18 19 in order to accomplish their policy objectives.

20

34. The government’s policy of separating children was a mandatory policy

21 that, as implemented, required CBP and ICE agents to separate parents from their

22 children after crossing the border, even if the parents were not targeted for 23

24

25 27 David Shepardson, Trump Says Family Separations Deter Illegal Immigration,

26 REUTERS, Oct. 13, 2018, https://www.reuters.com/article/us-usa-immigration-

trump/trump-says-family-separations-deter-illegal-immigration-idUSKCN1MO00C. 27 28 Donald Trump, supra note 1 (emphasis in original).

28 29 Kindy, supra note 1.

15

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 18 of 77

1 prosecution—the Administration’s pretext for separation and deterrence—as was the

2 case with Plaintiffs. 3

4

2. The Implementation of the Separation Policy and the Chaos of Reunification

5

35. CBP officers generally carried out separations of parents and children

6

7 under the family separation policy at various immigration detention sites near the

8 southwestern border.

9

36. Immigration officials frequently put arriving parents and children in

10 cells in short-term detention centers and told the parents that immigration officials 11 12 would take their children.

13

37. Immigration officials often told parents that they committed a crime by

14 crossing the border, even when parents crossed through official ports of entry.

15

38. Many parents waited in terror as they watched immigration officials

16

17 take children from their parents, knowing that their children’s names might soon be

18 called.

19

39. In many cases, when children’s names were called, immigration officers

20 told their parents to bring the children to the showers to bathe them.

21

22

40. In many instances, once the parents bathed the children, immigration

23 officials told the parents to say goodbye.

24

41. If the parents did not willingly hand their children over to immigration

25 officials, the officials often forcibly ripped the children out of their parents’ arms. 26

27

28

16

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 19 of 77

1

42. Immigration officials separated children as young as infants and as old

2 as 17 from their parents, without regard to age or language ability.

3

4

43. In many cases, parents begged immigration officials not to take their

5 children, but immigration officials did so, often with callous disregard for the parents’

6 and children’s anguish.

7

44. Parents often had to watch immigration officials walk their children out

8

9 of the cells and out of their sight.

10

45. Many parents watched immigration officials separate other parents and

11 children after they were separated from their own children, compounding the trauma.

12

46. In many cases, immigration officials flew children thousands of miles

13

14 away from their parents under the pretense that the separation was the necessary result

15 of the criminal prosecution of the parents. In an effort to create maximum chaos and

16 harm, the government took the children regardless of whether their parents were taken

17 into criminal custody, remained in criminal custody for any length of time, or were 18 19 even prosecuted at all.

20

47. After forcibly separating family units, CBP transferred many parents

21 into ICE custody.30

22

48. The government then classified the children as “unaccompanied,” even

23

24 though they were accompanied by their parents when they arrived in the United States

25

26 30 OFFICE OF THE INSPECTOR GENERAL, U.S. DEP’T OF HOMELAND SECURITY, OIG-

18-84, SPECIAL REVIEW - INITIAL OBSERVATIONS REGARDING FAMILY SEPARATION 27 ISSUES UNDER THE ZERO TOLERANCE POLICY 2-3, 13, 15 (Sept. 27, 2018)

28 [hereinafter DHS OIG REPORT].

17

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 20 of 77

1 and remained accompanied until the government separated them from their parents
2 and transferred the children to ORR custody. ORR is responsible for the long-term 3 4 custodial care and placement of “unaccompanied alien children.”31 See 6 U.S.C. §
5 279(a).

6

49. As predicted by John Kelly, ORR staff then placed the children in

7 “foster care or whatever.”32 The “whatever” included placement of many children in 8
9 ORR facilities throughout the United States.

10

50. The parents and children were not told where the other was located or

11 when they would be able to see each other, or even speak to each other, again. Some
12 parents had to wait weeks before speaking to their children. In some cases, when 13 14 parents finally obtained contact information for their children, they were told they had
15 to pay to make phone calls, a significant obstacle for detained parents who had no

16 resources.

17

51. Parents suffered physically, mentally, and/or emotionally during the

18

19 separation from their children.

20

52. Likewise, children separated from their parents suffered physically,

21 mentally, and/or emotionally. This trauma was aggravated by the fact that many

22

23

24

25

26

31 Id. at 3. 27 32 Transcript: White House Chief of Staff John Kelly’s Interview with NPR, supra note

28 22.

18

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 21 of 77

1 children did not understand why they had been separated and some believed their

2 parents had abandoned them.33

3

4

53. In implementing the separation policy, the government significantly

5 exacerbated the trauma it intended to cause by failing to take even the most basic

6 steps to record which children belonged with which parents. The government’s
7 failures resulted in delays in parents’ ability to locate and communicate with their 8 9 children, and ultimately to be reunited, causing even more anguish for separated
10 families. These failures “also contributed to children’s anxiety and fear for their

11 parents’ well-being.”34

12

54. The government’s failure to ensure appropriate recordkeeping

13

14 manifested itself in many ways. For example, ICE’s computer system “did not

15 display data from CBP’s systems that would have indicated whether a detainee had

16 been separated from a child.”35

17

55. As a result, when ICE processed detained parents for removal, “no

18

19 additional effort [was made] to identify and reunite families prior to removal.”36

20

21

22 33 OFFICE OF THE INSPECTOR GENERAL, U.S. DEP’T OF HEALTH & HUMAN SERVS.,

23 OEI-09-18-00431, CARE PROVIDER FACILITIES DESCRIBED CHALLENGES ADDRESSING MENTAL HEALTH NEEDS OF CHILDREN IN HHS CUSTODY 10 (Sept.

24 2019) [hereinafter “HHS OIG REPORT II”] (“Children who did not understand why

25

they were separated from their parents suffered elevated levels of mental distress. For example, program directors and mental health clinicians reported that children who

26 believed their parents had abandoned them were angry and confused.”). 34 Id. at 10-11.
27 35 DHS OIG Report, supra note 30, at 9-10.

28 36 Id. at 10.

19

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 22 of 77

1

56. When the DHS Office of Inspector General (“OIG”) pressed ICE for

2 information that should have been available to ICE (e.g., information on the current 3 4 location of separated children), ICE could not provide the information, and had to

5 request it from HHS. DHS later “acknowledged to the OIG that there is no ‘direct

6 electronic interface’ between the DHS and HHS tracking systems.”37

7

57. As emphasized by the Honorable Dana M. Sabraw of the Southern

8

9 District of California in a ruling addressing the constitutionality of the family

10 separation policy in Ms. L. v. U.S. Immigration and Customs Enforcement, the

11 agencies’ failure to coordinate tracking of separated families was a “startling reality”

12 given that:

13

14

The government readily keeps track of personal property of detainees in criminal and immigration proceedings. Money,

15

important documents, and automobiles, to name a few, are

routinely catalogued, stored, tracked and produced upon a

16

detainee’s release, at all levels—state and federal, citizen and

17

alien. Yet, the government has no system in place to keep track of, provide effective communication with, and promptly produce

18

alien children. The unfortunate reality is that under the present

19

system migrant children are not accounted for with the same efficiency and accuracy as property. Certainly, that cannot

20

satisfy the requirements of due process.38

21

58. The government compounded the harm it caused by failing to provide

22 parents and children, including Plaintiffs, with any information regarding each other’s 23 24 whereabouts or well-being for weeks and, in many cases, months, and by failing to

25

26

27 37 Id. at 10-11.

28

38 Ms. L., 310 F. Supp. 3d at 1144 (emphasis in original). 20

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 23 of 77

1 facilitate adequate communication between parents and children.39 The torture of not
2 knowing where their family members were, whether they were healthy and safe, and 3 4 when or whether they would see each other again further exacerbated the trauma
5 parents and children suffered as a result of being torn apart.40

6

59. Only after the family separation policy garnered widespread

7 condemnation did President Trump, on June 20, 2018, sign an executive order (“EO”) 8
9 purporting to end it.

10

11

12

13 39 See, e.g., id. at 1136-37 (“[T]here is no genuine dispute that the Government was

14 not prepared to accommodate the mass influx of separated children. Measures were

15

not in place to provide for communication between governmental agencies responsible for detaining parents and those responsible for housing children, or to

16 provide for ready communication between separated parents and children.”); Kevin

Sieff, The Chaotic Effort to Reunite Immigrant Parents with Their Separated Kids, 17 WASH. POST, June 21, 2018,

18 https://www.washingtonpost.com/world/the_americas/the-chaotic-effort-to-reuniteimmigrant-parents-with-their-separated-kids/2018/06/21/325cceb2-7563-11e8-bda1-

19 18e53a448a14_story.html?utm_term=.f32056f25ced (reporting that “government

20

authorities have often been unwilling to arrange phone calls between [separated parents and children], or provide details about where the child is held”).

21 40 See, e.g., HHS OIG REPORT II, supra note 33, at 11 (“Adding to the challenge of

addressing mental health needs of separated children was the uncertainty that came 22 with a hectic reunification process for children covered by the Ms. L v. ICE

23

lawsuit. . . . Changing guidance resulted in uncertainty around how or when reunification would happen. For example, case managers in facilities were not always

24 able to let children know when, or even if, they would be reunified with their parents,

25

or whether that reunification would happen in the United States. This type of uncertainty added to the distress and mental health needs of separated children. . . .

26 [F]acilities reported that logistical issues introduced further uncertainty that could lead

to emotional distress. Facilities reported that some reunifications were scheduled with 27 little advance notice, or suddenly canceled or delayed, which increased the levels of

28

uncertainty and anxiety in separated children . . .”). 21

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 24 of 77

1

60. The EO stated that it is the “policy of this Administration to maintain

2 family unity, including by detaining alien families together where appropriate and 3 4 consistent with law and available resources.”41

5

61. The EO, however, did not explain whether or how the federal

6 government would reunify children whom the government had forcibly separated

7 from their parents. In fact, on June 22, 2018, the government admitted that it had no
8 9 reunification procedure in place.42

10

62. On June 26, 2018, in Ms. L., Judge Sabraw ordered the government to

11 reunify families. The class-wide preliminary injunction, among other things,
12 prohibited the government from separating parents from their minor children in the 13 14 future, absent a determination that the parent is unfit or presents a danger to the child;

15 41 Affording Congress an Opportunity to Address Family Separation, Exec. Order No.

16 13,841, 83 Fed. Reg. 29,435 § 1 (June 20, 2018).

42 See Ms. L., 310 F. Supp. 3d at 1140–41 (citing Transcript of Status Conference at 17 29-30, Ms. L., No. 18-cv-00428 DMS MDD (S.D. Cal. June 22, 2018), ECF No. 77);

18 see also U.S. GOV’T ACCOUNTABILITY OFF., GAO-19-163, UNACCOMPANIED CHILDREN: AGENCY EFFORTS TO REUNIFY CHILDREN SEPARATED FROM PARENTS AT

19 THE BORDER 21 (Oct. 2018) [hereinafter GAO REPORT] (“HHS officials told [the

20

GAO] that there were no specific procedures to reunite children with parents from whom they were separated at the border prior to the June 2018 court order.”). The

21 only procedure in place capable of reuniting children with their parents was the

procedure developed to place unaccompanied children with sponsors in compliance 22 with the Trafficking Victims Protection Reauthorization Act. Id. Under this

23

procedure, however, a parent could only be reunited with his or her child if the government deemed them eligible to be a sponsor. Id. Judge Sabraw noted that this

24 procedure was inadequate because it was created to address “a different situation,

25

namely what to do with alien children who were apprehended without their parents at the border or otherwise,” and further, that the procedure was not developed to address

26 situations such as this one where family units were separated by government officials

after they crossed the border together. Id. at 27 (quoting Order Following Status 27 Conference at 2, Ms. L., No. 18-cv-00428 DMS MDD (S.D. Cal. July 10, 2018), ECF

28 No. 101).

22

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 25 of 77

1 prohibited the deportation of any detained parent before reunification with his or her
2 separated children; and ordered the government to reunify parents separated from 3 4 children under the age of five within fourteen days, and with children aged five and
5 older within thirty days.43 Each of the parent Plaintiffs in this Complaint is a member

6 of the class in Ms. L.44

7

63. Only after Judge Sabraw issued the injunction did the government begin

8

9 taking meaningful steps to reunify families.45

10

64. Those efforts, however, were defined by chaos. The government

11 claimed that DHS and HHS had created a centralized database containing all relevant

12 information regarding parents separated from their children. But there was “no 13 14 evidence that such a database exists.”46

15

65. Any data the government collected was incomplete, contradictory, and

16 unreliable.47 Accordingly, the agencies resorted to a variety of inefficient and
17 ineffective methods to determine which children were subject to Judge Sabraw’s 18 19 injunction,48 including hand-sifting through agency data looking for any indication 20 that a child in HHS custody had been separated from his or her parent,49 and calling in

21 the Office of the Assistant Secretary for Preparedness and Response, an HHS agency

22

23 43 Ms. L., 310 F. Supp. 3d at 1149-50.

24 44 See Order Granting in Part Plaintiffs’ Motion for Class Certification at 17, Ms. L.,

25

No. 18-cv-00428 DMS MDD (S.D. Cal. June 26, 2018), ECF No. 82. 45 See Ms. L., 310 F. Supp. 3d at 1140-41.

26 46 DHS OIG REPORT, supra note 30, at 10.

47 Id. at 11-12. 27 48 GAO REPORT, supra note 42, at 23-25.

28 49 Id. at 24.

23

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 26 of 77

1 whose normal prerogative involves responding to hurricanes and other public health

2 disasters, to review data provided by HHS, DHS, and ORR.50

3

4

66. The method for determining which family units required reunification

5 changed frequently, sometimes more than once a day, with staff at one ORR shelter

6 reporting that “there were times when [they] would be following one process in the

7 morning but a different one in the afternoon.”51

8

9

67. Judge Sabraw criticized the agencies for their callous treatment of

10 families: “[W]hat was lost in the process was the family. The parents didn’t know

11 where the children were, and the children didn’t know where the parents were. And

12 the government didn’t know, either.”52

13

14

68. Consistent with Judge Sabraw’s rulings, the government’s policy of

15 separating children from their parents in the absence of a determination that the

16 parents were unfit or presented a danger to their children and its failure to track the
17 children and promptly reunite the families once they were separated violated the 18 19 constitutional right to family integrity of the persons subject to the policy, including 20 Plaintiffs.53

21

22 50 Id. at 23.

23

51 Id. at 27. 52 Transcript of Status Conference at 58, Ms. L., No. 18-cv-00428 DMS MDD (S.D.

24 Cal. July 27, 2018), ECF No. 164.

25

53 See Ms. L. v. U.S. Immigration and Customs Enf’t, 302 F. Supp. 3d 1149, 1161-67 (S.D. Cal. 2018) (finding that plaintiffs had stated a legally cognizable claim for

26 violations of their substantive due process rights under the Fifth Amendment to the

United States Constitution based on their allegations that the government had 27 separated them from their minor children, and kept them separated from their minor

28

children, while they were held in immigration detention and without a showing that 24

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 27 of 77

1

69. As evidenced by Administration officials’ statements that the policy’s

2 purpose was to deter asylum seekers, the government’s refusal to provide parents and 3 4 children any information about each other’s whereabouts and well-being, and its

5 failure to track separated families and address reunification in any meaningful way

6 until a federal judge ordered it to do so, the government instituted and implemented

7 this policy to intentionally inflict emotional distress on the parents and children whom 8
9 it separated. It succeeded, with devastating consequences for Plaintiffs.

10

B. C.M and B.M.

11

1. The Two-And-A-Half Month Separation of C.M. and B.M.

12

70. On or around May 9, 2018, C.M. entered the United States with her then

13 five-year-old son, B.M., after fleeing life-threatening violence in Guatemala.

14

15

71. When C.M. and B.M. crossed the border at or near San Luis, Arizona,

16 immigration officers apprehended them and took them to a short-term detention

17 center commonly referred to as the “hielera” or “ice box” due to the very cold

18 temperature inside. C.M. and B.M. arrived at the hielera late at night. As soon as 19 20 they arrived, an immigration officer told C.M. and three other women who arrived

21

22

23

24

25 they were unfit parents or otherwise presented a danger to their children); Ms. L., 310

26 F. Supp. 3d at 1142-46 (finding that plaintiffs were likely to succeed on the merits of

their substantive due process claim); see also Smith v. Org. of Foster Families for 27 Equal. & Reform, 431 U.S. 816, 845 (1977) (liberty interest in family relationships

28

has its source in “intrinsic human rights”). 25

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 28 of 77

1 with her that immigration officers would take away their children and send the

2 women back to Guatemala.54

3

4

72. C.M. was horrified by the news. The officer laughed at her shocked

5 reaction and the reaction of women she was with and said, “Happy Mother’s Day.”

6

73. A second immigration officer asked C.M. to sign papers written in

7 English that she did not understand. Unable to read or write, she told the officer that 8
9 she did not know how to sign her name. The immigration officer told her to put an X

10 on the signature line.

11

74. The immigration officer confiscated C.M. and B.M.’s belongings,

12 including extra articles of clothing that could have helped them stay warm in the
13 14 hielera, and locked C.M. and B.M. in a cell with many other women and children.

15

75. There were no beds in the cell, and C.M. and B.M. received nothing to

16 eat except watered-down broth. Other distraught mothers detained in the same cell

17 told C.M. that the immigration officers had taken away their children, and that they 18 19 would take B.M. away as well. C.M. was terrified.

20

76. During C.M.’s first night in the hielera, an immigration officer called

21 her name and asked B.M.’s age. C.M. told the officer that B.M. was five years old. A

22 short while later, the same officer again called C.M.’s name and again told her that 23 24 immigration officers would take B.M. away from her and send him to a shelter

25

26

54 None of the Plaintiffs speak English. All referenced conversations involving a 27 Plaintiff occurred in Spanish, except conversations between C.M. and her son, B.M.,

28 which occurred in Mam.

26

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 29 of 77

1 because he was old enough to go, and that only mothers with children under four

2 years old might be released with their children. C.M. sobbed at the news.

3

4

77. Less than two days later, very early in the morning on or around May

5 11, 2018, an immigration officer told C.M. to wake her son up because the

6 immigration officers would be taking him to a shelter for children that morning.

7 When C.M. woke B.M., he saw the officer and began to cry.

8

9

78. The officer tried to take B.M. to another room so that B.M. could have a

10 bath, but, because B.M. was crying so hard, the officer told C.M. that she would have

11 to bathe B.M. The officer took C.M. and B.M. to a room where there was a shower

12 and ordered her to bathe and dress B.M. Believing she had no choice, C.M. complied.

13

14

79. Once B.M. was dressed, the officer took them to a different room and

15 told C.M. that she had to say good-bye to her son. C.M. begged the immigration

16 officer not to take her son away, stating over and over that he was only five years old

17 and he only spoke Mam, did not understand Spanish or English, and would not be 18 19 able to understand what anyone said to him. The officer did not relent.

20

80. Desperate to keep her son, C.M. asked the officer to send her back to

21 Guatemala with B.M. rather than separate them. C.M. and B.M. had fled to the

22 United States after suffering horrific abuse in Guatemala, based in part on their 23 24 indigenous identity. C.M. was terrified to return, but the thought of losing her son
25 was inconceivable. The officer laughed. He made fun of her indigenous accent and

26 said “it’s not that easy.”

27

28

27

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 30 of 77

1

81. C.M. continued to refuse to let her son go. Eventually, another

2 immigration officer came over and told her to hurry up because they were putting 3 4 B.M. on a plane, and the plane was about to take off. When C.M. continued to resist,

5 the two officers threatened to throw her son in a cell without her if she did not let

6 them take him.

7

82. Recognizing that the officers would take B.M. no matter what she did,

8

9 C.M. explained to her five-year-old son that he would be going away for a few days.

10 Despite her anguish, she tried to be positive for him and told him that he would go to

11 a shelter to play with lots of other children and that she would see him in a few days.

12

83. B.M. asked C.M. if she would go back to Guatemala without him. She

13

14 assured him that she would never leave without him. He sobbed and clutched her.

15 The immigration officers pried B.M. away by force as he cried and grabbed at C.M.’s

16 clothes.

17

84. Without her child, C.M. fell apart. She was extremely cold and

18

19 heartbroken and she cried constantly. She could not sleep because she was so

20 distraught. The government gave C.M. no information about B.M. She became

21 disoriented, unable to gauge the passage of time, had no appetite, and began to suffer

22 chronic headaches. Days after they took B.M. away, an immigration officer 23 24 commented that she was losing weight.

25

85. While C.M. stayed in the hielera, she watched immigration officers take

26 other children away from their parents. Through the interior window of her cell, she

27 could see fathers crying.

28

28

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 31 of 77

1

86. About four days after immigration officers took B.M. from C.M.,

2 officers moved C.M. to the Florence Staging Facility, and, one day later, to the Eloy 3 4 Detention Center, where she was held for approximately two days.

5

87. In Eloy, officers finally allowed C.M. to speak to her son—but only for

6 a matter of minutes. B.M. repeatedly asked his mother when she was coming to get
7 him. He told her he was all alone and did not know what anyone was saying to him 8 9 because he could not speak Spanish. Not knowing the answer, or even where B.M.
10 was, C.M. was unable to comfort him.

11

88. B.M. sounded terrified and heartbroken, which left C.M. more

12 traumatized than before they had spoken. She still did not know where he was being
13 14 held.

15

89. After spending a night or two in Eloy, immigration officers transferred

16 C.M. by plane to a detention center outside of Las Vegas, Nevada. During this

17 transport, officers handcuffed her and shackled her around her waist, feet, and wrists. 18 19 C.M. could not stop crying.

20

90. In Nevada, a woman being held with her tried to put water to C.M.’s

21 cracked and dry lips. Another woman tried to get C.M. to eat and encouraged her to

22 sleep. The woman also translated for her when immigration officers walked past and 23 24 said in English: “What’s wrong with you?”

25

91. Several weeks after she arrived in Nevada, C.M. was finally able to

26 speak to B.M. again. A male officer called C.M.’s name and led her to a small room

27 with a telephone. When the phone rang, he told her to answer it. When she did, she

28

29

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 32 of 77

1 heard B.M.’s voice for only the second time since they had been separated more than

2 a month earlier.

3

4

92. When she spoke to B.M., C.M. cried so hard that she could barely

5 speak. B.M. had difficulty speaking because he was so sad and scared. C.M. could

6 hear the fear through his voice. He could only keep asking when they would go

7 home.

8

9

93.

After C.M. and B.M. spoke, a social worker told C.M. that B.M. was in

10 a shelter in New York, thousands of miles away. The social worker told C.M. that she

11 had to fight her immigration case and that she should not give up. She impressed
12 upon C.M. the urgency of the situation and told her that if she did not fight her case, 13 14 the government could deport her, and she might never see B.M. again. The possibility
15 of never seeing her child again horrified her.

16

94. While C.M. was later allowed additional phone calls with B.M. during

17 her detention in Las Vegas, B.M. was so traumatized that he was unable to say much. 18 19 As soon as he heard his mother’s voice, B.M. would become very upset, begin to sob,
20 and repeatedly ask C.M. when they would be able to go home. Listening to B.M. cry

21 was excruciating for C.M. She could do nothing to take care of her child beyond

22 pleading with the social worker to make sure he was all right.

23

24

95. B.M. turned six while he was in the shelter in New York. C.M. spent

25 B.M.’s birthday crying in the detention center, wishing she could be with him. One of

26 the other women in the detention center tried to comfort her, but C.M. could not be

27 consoled.

28

30

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 33 of 77

1

96. On June 19, 2018, while she was being held in Nevada, C.M. had a

2 hearing before an immigration judge, who ordered her deported to Guatemala.

3

4

97. Shortly after C.M.’s hearing, on June 26, 2018, Judge Sabraw issued the

5 injunction enjoining the U.S. government from removing separated parents without

6 their children.55 As a result, the government was prohibited by judicial order from

7 carrying out C.M.’s worst fear—being deported without B.M.

8

9

98. While Judge Sabraw’s injunction spared C.M. from immediate removal,

10 she was not told about the injunction and she remained in the detention center in

11 Nevada for approximately a month after her immigration hearing, terrified that she

12 could be deported without B.M. at any time.

13

14

2. B.M.’s Separation From His Mother

15

99. While C.M. suffered in detention, B.M. suffered on his own. After

16 immigration officials tore him from his mother’s arms, they put B.M. on a plane to

17 New York, thousands of miles away from his mother. It was B.M.’s first time on an

18 airplane.
19

20

100. B.M. was transferred to the Safe Haven for Children Program in New

21 York. He arrived very late at night on May 11, 2018. As B.M. did not speak Spanish

22 or English, he was unable to communicate with anyone at the shelter when he arrived.
23 101. Staff at Safe Haven placed B.M. with a foster care family shortly after
24 25 he arrived in New York, but he was removed from that home after B.M. and another

26

27 28 55 Ms. L., 310 F. Supp. 3d at 1149-50. 31

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 34 of 77

1 child reported that the foster care mother had hit them both. No government official

2 or shelter staff member informed C.M. about this reported abuse.

3

4

102. Following this incident, Safe Haven staff placed B.M. with a second

5 foster care family, and he remained with that family for approximately two months,

6 until late July.

7

3. C.M. and B.M.’s Reunification

8 103. On or about the night of July 18, immigration officers, without
9

10 explanation, transported C.M. and several other mothers to the Port Isabel Detention

11 Center in Texas (“Port Isabel”). They locked C.M. again in an hielera. Some of the

12 other parents at Port Isabel told C.M. that they thought they were getting their 13
children back, but C.M. did not believe them. By this time, C.M. believed that 14 15 immigration officers would never return her son.

16

104. C.M. was locked in the hielera, which was filthy and so cold that she

17 and the other women could not sleep. 18
105. On the evening of July 25, 2018, immigration authorities again placed 19 20 B.M. on a flight across the country, to Port Isabel. On or around July 26, while C.M.

21 waited in the hielera, an immigration officer called C.M.’s name and escorted her

22 into a small room. She waited there for approximately thirty minutes. The officer

23 forced her to sign a form that she could not read and did not understand.
24

25

106. A few minutes after signing the form, C.M. saw B.M. and several

26 other children enter the room. She called his name and, when he saw her, he threw

27

28

32

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 35 of 77

1 his bag to the side, ran toward her, and threw himself in her arms. They sobbed with

2 relief.

3

4

107. After they were reunified, immigration officials transferred C.M. and

5 B.M. by bus to Dilley, one of ICE’s family detention centers. As soon as they

6 boarded the bus, B.M. began crying. C.M. tried to comfort him, but B.M. was

7 terrified that they would be separated again.

8

9

108. C.M. and B.M. were detained at Dilley for approximately four months.

10 DHS finally released C.M. and B.M. from Dilley in November 2018, more than six

11 months after they arrived in the United States.

12

4. C.M. and B.M.’s Harms and Losses

13

14

109. C.M. suffered severe emotional distress as a result of the forcible

15 separation from her son by the government. From the moment of the separation,

16 when an officer laughed at C.M. while she cried in desperation, she has endured

17 palpable trauma. After they separated C.M. and B.M., immigration officers told C.M. 18 19 nothing about her son’s well-being or whereabouts, causing her acute anxiety and
20 distress. She worried about her son constantly.

21

110. C.M. was so consumed with worry that she was frequently unable to

22 sleep, had no appetite, and suffered from chronic headaches. During C.M.’s forced 23 24 separation from B.M., immigration officers did nothing to help her locate him other
25 than arrange phone calls. This cruelty compounded C.M.’s distress.

26

111. C.M. continues to suffer as a result of the separation from her son. A

27 psychological evaluation confirms that C.M. suffered severe trauma tied directly to

28

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1 that separation and the failure of immigration officers to provide her with information

2 about her son.

3

4

112. The clinical social worker who evaluated C.M. during her detention in

5 Dilley found that she exhibits symptoms consistent with Post-Traumatic Stress

6 Disorder (“PTSD”).

7

113. C.M.’s concern about her son’s well-being dominated her every waking

8

9 hour. She now has difficulty sleeping and suffers from chronic headaches. She suffers

10 flashbacks of the separation which cause her extreme anxiety and an acute feeling that

11 she is losing control. C.M. remains traumatized by the thought of her son spending

12 his sixth birthday scared and alone.

13

14

114. B.M. experienced similar fear and mental anguish when he was taken

15 from his mother. After DHS separated him from C.M., he was detained in an

16 unfamiliar place, far from his mother, where he was unable to communicate with

17 anyone because of his indigenous Mam language. He did not know what was 18 19 happening or when he would see his mother again.

20

115. During his time in Dilley, B.M. continued to be extremely sad and

21 repeatedly asked his mother why they were there and why they were locked up. He

22 had little appetite and suffered from nightmares.

23

24

116. The severe emotional distress B.M. suffered during the separation

25 continues today. He refuses to talk about his time in the shelter in New York. He

26 continues to eat very little.

27

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1

117. After they were reunited, B.M. told his mother that he thinks she

2 brought him to the United States to give him away. C.M. worries that their 3 4 relationship may never recover.

5

118. To this day, whenever C.M. leaves the house, B.M. asks whether she is

6 coming back. Despite her reassurances, C.M. perceives that B.M. does not believe

7 her.

8

9

C.

10

L.G. and B.G. 1. The Two-Month Separation of L.G. and B.G.

11

119. On or around May 16, 2018, L.G. and her then-seven-year-old daughter,

12 B.G., fleeing horrific violence and threats of violence in Guatemala, entered the

13 United States near San Luis, Arizona.

14

15

120. CBP officers escorted L.G. and B.G. through what L.G. believed was an

16 official port of entry, where L.G. told the officers that she feared for her safety and the

17 safety of her daughter.

18

121. The CBP officers transferred L.G. and B.G. to an hielera located in or

19

20 near Yuma, Arizona.

21

122. Shortly after L.G. and B.G. arrived at the hielera, immigration officers

22 told L.G. that the law had changed, and that the U.S. government was going to take

23 B.G. away from her. L.G. was horrified.

24

25

123. Even though L.G. and B.G. had entered through what L.G. perceived to

26 be an official port of entry, the immigration officers told her that she had entered the

27

28

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1 country illegally and accused her of using B.G. as a free ride to gain entry to the

2 United States.

3

4

124. The immigration officers put L.G. and B.G. in a cell with approximately

5 100 other women and children. The cell was over-crowded. It had no beds. The

6 women and children slept on the floor with only aluminum foil sheets. There was

7 only one toilet and one sink for everyone. There was no soap or bathing facility.

8

9

125. Other women in the cell told L.G. that immigration officers had taken

10 their children. Many of these women were crying and praying. L.G. watched as the

11 immigration officers ignored these mothers when they pleaded for information about

12 their sons and daughters.

13

14

126. L.G. was unable to sleep that night. Instead she cried, holding her

15 daughter in her arms.

16

127. The next morning, on or around May 17, 2018, an immigration officer

17 called L.G.’s name and told her that they would be taking B.G. to a “better place,” but 18 19 did not give her any details. L.G. began to cry.

20

128. Later that day, in the afternoon, two immigration officers entered the

21 cell and began calling the names of children. L.G. and B.G., along with everyone else

22 in the cell, watched as immigration officers took children away from their mothers. 23 24 Many people were crying.

25

129. One young boy, who was about five or six years old, cried and clung to

26 his mother after one of the immigration officers called his name. Because the boy

27

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1 refused to let go, an immigration officer forcibly yanked the boy from his mother’s

2 arms. Watching this further traumatized L.G.

3

4

130. After L.G. witnessed immigration officers taking the boy by force, an

5 immigration officer called B.G.’s name. B.G. looked at her mother and the officer

6 ordered B.G. to come to him. He told L.G. and B.G. to say good-bye.

7

131. L.G. told her daughter to be strong and that they would not be apart

8

9 long. B.G. was confused and terrified. She did not want to leave her mother. As the

10 immigration officer escorted her away, B.G. turned around and caught her mother’s

11 eye. L.G. sobbed as she watched the immigration officers take away her child.

12

132. L.G. witnessed approximately six or seven other children being taken

13

14 away with B.G. These children ranged in age from approximately five to

15 approximately sixteen years old.

16

133. After taking their children, the immigration officers did not give L.G.

17 and the other women any information about where their children were going or when 18 19 the mothers would speak to their children again.

20

134. L.G. remained in the holding cell for several more days. Almost every

21 day, and sometimes more than once a day, immigration officers entered the cell and

22 forcibly separated children from their mothers.

23

24

135. L.G. had to watch these separations and re-live the trauma of having

25 been separated from her own daughter again and again.

26

136. Every day, L.G. and the other mothers asked the immigration officers

27 about their children. The officers never answered their questions.

28

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1

137. On or around May 25, 2018, approximately one week after they took

2 her daughter, immigration officers transported L.G. and some of the other women in 3 4 handcuffs and shackles to the Florence Staging Facility and, one day later, to the

5 Santa Cruz County Jail. L.G. remained in the jail for several days.

6

138. On or around May 28, 2018, immigration officers transported L.G. back

7 to the Florence Staging Facility in handcuffs and shackles. The following day, on or 8
9 around May 29, 2018, immigration officers again handcuffed and shackled L.G. and

10 other women and, without providing them any information, took them on a bus to an

11 airport. L.G. was crying and distraught. She was convinced that she was going to be

12 deported without her daughter.

13

14

139. Upon arriving at the airport, immigration officers instructed L.G. and

15 the other women to board a plane. It was only once the plane had left the ground that

16 a woman, who may have been a flight attendant, told the women that the plane was

17 going to California.

18

19

140. Upon arrival in California, the immigration officers loaded L.G. and the

20 other women, still in handcuffs and shackles, into a van and took them to an

21 immigration detention center near Los Angeles.

22

141. The following day, on or around May 30, 2018, immigration officers

23

24 again put L.G. and the other women in handcuffs and shackles and transported them

25 to the James A. Musick Facility (“Musick”) near Irvine, California.

26

142. L.G. had been transferred to multiple facilities since leaving the hielera

27 where she last saw her daughter. Despite repeatedly asking immigration officers at

28

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1 each of these facilities for information about her daughter, she still had no information
2 about B.G.’s whereabouts or well-being. When L.G. asked if she could have a phone 3 4 call with B.G., an immigration officer told her that the immigration authorities could

5 not set up a call with B.G. because then they would have to set up calls for every

6 mother who had been separated from her child.

7

143. On or around June 15, 2018, still having heard nothing about her

8

9 daughter, L.G. was taken to an immigration court where she saw an immigration

10 judge. The immigration judge told her that she would be deported.

11

144. L.G. became more distraught. She told the judge that she had a

12 daughter in the United States, and that she could not be deported without her. The
13 14 judge ordered L.G.’s removal that day and handed L.G. a piece of paper in English.

15

145. L.G. was not deported after the hearing, likely due to the injunction

16 issued by Judge Sabraw on June 26, 2018 prohibiting DHS from deporting parents

17 separated from their children. Instead, L.G. remained at Musick for more than a 18 19 month after her hearing. During this time, L.G. lived in constant fear that she would
20 be deported without B.G. She still had no idea where B.G. was, or how B.G. was

21 doing. L.G. had asked immigration officers in every place she had been detained for

22 information about her daughter. They had all ignored her or refused to answer her 23 24 questions.

25

146. After L.G. made repeated written requests to speak with her daughter

26 and for information about her daughter’s whereabouts, immigration officials finally

27 informed L.G. that B.G. was in Arizona.

28

39

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1

147. L.G. was finally able to speak to B.G. by telephone in late June, after

2 approximately six weeks of separation.

3

4

148. L.G.’s joy upon hearing her daughter’s voice did not last long. B.G.

5 gave L.G. one-word answers and began crying partway through the conversation.

6 The social worker ended the call after a few minutes because B.G. was so upset.

7

149. Hearing her daughter in such distress, and knowing that she was unable

8

9 to do anything to help her, L.G. was filled with anguish and despair.

10

150. Approximately one to two weeks later, L.G. had another brief telephone

11 call with B.G. Again, B.G. did not speak much. L.G. tried to engage her daughter

12 and told her not to be sad.

13

14

151. These were the only telephone calls L.G. had with B.G. during the

15 entirety of their two-month separation. Although L.G. asked for and received the

16 number for the social worker during her second call with B.G., L.G. could not afford

17 to make any calls from the jail, which charged by the minute.

18

19

2. B.G.’s Separation From Her Mother

20

152. After immigration officials forcibly separated B.G. from her mother on

21 May 17, 2018, government officials took B.G. to Hacienda Del Sol, a Southwest Key

22 facility, in Youngstown, Arizona.
23 153. Upon arrival, B.G. asked to speak to her family, but none of the staff at
24 25 the facility had any information about her mother. In fact, officials at Hacienda Del

26 Sol had no information about and no contact with B.G.’s mother until on or around

27 June 25, 2018, well over a month after B.G. arrived at the shelter.

28

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1

154. B.G. spent over two months alone at a shelter without her family and

2 with very little contact—only two brief phone calls—with her mother.

3

4

3. L.G. and B.G.’s Reunification

5

155. On or around July 17, 2018, immigration officers handcuffed and

6 shackled L.G., and transported her from Musick to Port Isabel in Texas.

7

156. Approximately one week later, around midnight on or about July 24,

8 after more than two months of separation, L.G. and B.G. were reunited at Port Isabel.
9

10

157. L.G. was relieved to be with B.G. again. They hugged each other and

11 cried.

12

158. Immigration officers then transferred L.G. and B.G. to Dilley.

13 159. During the time that the government detained L.G. and B.G. at Dilley,
14

15 an asylum officer interviewed B.G. and determined that B.G. had a credible fear of

16 persecution in Guatemala. This threshold finding allows B.G. to pursue asylum

17 before an immigration court. 18
160. Following the credible fear interview, DHS finally released L.G. and 19 20 B.G. in November 2018, after four months at Dilley and more than six months after

21 L.G. and B.G. were first detained.

22

4. L.G. and B.G.’s Harms and Losses

23

161. L.G. suffered severe emotional distress as a result of the forcible

24

25 separation from her daughter by the government. L.G. continues to experience

26 symptoms of distress to this day.

27

28

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1

162. Immigration officers failed to provide L.G. with information regarding

2 her daughter’s well-being or whereabouts for more than six weeks, which increased 3 4 her acute anxiety and distress.

5

163. L.G. cried constantly for the duration of her separation from her

6 daughter. She was so overwhelmed by feelings of loss, despair, fear, and grief that

7 she was unable to sleep, had no appetite, and began to suffer migraines so severe that 8
9 they caused her nausea and sensitivity to light and noise.

10

164. L.G. worried and continues to worry about her child constantly. She

11 continues to have difficulty sleeping and to suffer from migraines.

12

165. L.G. remains afraid that B.G. will be separated from her again. This

13

14 constant fear is a source of ongoing stress and anxiety for L.G., and makes her

15 extremely sad.

16

166. A medical doctor conducted a psychological evaluation of L.G. at

17 Dilley and confirmed that L.G. suffered trauma as a result of the separation from 18 19 B.G., as well as from the accompanying lack of information concerning B.G.’s safety,
20 well-being, and whereabouts after the immigration officers took B.G. from her.

21

167. The doctor further concluded that L.G. exhibited features of PTSD,

22 Generalized Anxiety Disorder, and Major Depressive Disorder.

23

24

168. Medical personnel at Dilley also examined B.G. at L.G.’s request. The

25 psychologist who examined B.G. told L.G. that B.G. was suffering from severe stress.

26

169. Since being reunited with her mother, B.G. has continued to experience

27 severe emotional distress resulting from the separation.

28

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1

170. L.G. has noticed that her daughter has changed as a result of the

2 separation. B.G. is afraid to leave her mother, even to go to school. Seeing police 3 4 officers makes B.G. anxious. B.G. is terrified that she and her mother will be

5 separated again. B.G. has trouble falling asleep unless her mother holds her.

6

D. M.R. and J.R.

7

1. The Two-and-a-Half Month Separation of M.R. and J.R.

8

171. On or around May 8, 2018, M.R. and her then twelve-year-old son, J.R.,

9

10 entered the United States near San Luis, Arizona, after fleeing life-threatening

11 violence in Guatemala.

12

172. When M.R. and J.R. entered, immigration officers took them to an

13 hielera. During this encounter, an immigration officer told M.R. that she would be
14 15 separated from her son and taken to jail.

16

173. At the hielera, M.R. and J.R. were locked in a crowded cell with

17 approximately twenty people, where they remained for two days.

18

174. The only food they were given was cold instant soup.

19

20

175. Despite the extremely cold temperatures inside the cell, immigration

21 officers provided only a single foil sheet for M.R. and J.R., which M.R. gave to her

22 son.

23

176. There was no bed or bedding in the cell, and M.R. and J.R. were forced

24

25 to sit on the cold floor.

26

177. The cell was so crowded that it was impossible to lay down, and they

27 sat all night with their legs pulled in because there was so little space in the room.

28

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1

178. M.R. did not sleep the first night because she was afraid for the well-

2 being of her son.

3

4

179. M.R. and J.R. overheard an immigration officer telling mothers that

5 they would be separated from their children, which scared them both.

6

180. Several times, J.R. said to his mother that he wanted to leave because he

7 was frightened and could not understand why they were detained. M.R. told him they 8
9 could not leave because the door was locked.

10

181. The hielera was often filled with the sounds of crying children.

11

182. On M.R. and J.R.’s second day of detention, an immigration officer

12 came to their cell and yelled at the mothers, “why did you bring your children here?”

13

14

183. The officers told the mothers that they would take the mothers’ children

15 away and that the mothers would not know where to find them.

16

184. Late that night, immigration officers started entering the room and

17 reading children’s names from a sheet of paper, starting with the youngest.

18

19

185. A few at a time, the children were taken to shower, and then dressed in

20 identical blue uniforms and blue shoes.

21

186. The officers ordered the mothers to take the younger children to the

22 showers and bathe them.

23

24

187. The older children were ordered to shower on their own and their

25 mothers were not allowed to go with them because, according to the immigration

26 officers, they were old enough to be alone. The children never returned to the cell

27

28

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1 after showering, but they were visible to the mothers through a window, before they

2 were taken away.

3

4

188. J.R. was asleep on the floor when the officers called his name very early

5 in the morning. M.R., who had been too afraid to sleep during the night, woke her

6 son and told him that the officers were calling him to be taken away.

7

189. In an effort to comfort her terrified son, M.R. told J.R. not to cry, to eat

8

9 well, and that it would not be long until they were reunited.

10

190. After J.R. was sent to shower alone, M.R. watched from the cell as her

11 son—now dressed in blue shoes and a blue uniform—was lined up with other children

12 and taken away. She was despondent. M.R. asked the immigration officers where
13 14 they would take J.R., but they would not tell her.

15

191. M.R. also asked the immigration officers what was going to happen

16 next. An immigration officer told M.R. that she would be deported and that her son

17 would stay in the United States.

18

19

192. M.R. told the immigration officer that she did not want to leave her son

20 in the United States alone, and that she wanted to wait for him in the United States.

21 When the immigration officer told M.R. that would not happen, M.R. was distraught

22 and feared that she would never see her son again.

23

24

193. Although M.R. did not know it at the time, immigration officials took

25 J.R. to the airport to be sent on a plane to New York, thousands of miles away from

26 her.

27

28

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1

194. In the early evening of the day that M.R. and J.R. were forcibly

2 separated, immigration officers shackled M.R. by her waist, hands and feet, and 3 4 transferred her to a detention center in Eloy.

5

195. Every day that she was in the detention center, M.R. asked immigration

6 officers where her son was and when she would be with him again, but they did not

7 give her any information about her son.

8

9

196. M.R. was so anxious and consumed with worry for J.R. that she could

10 not eat. She began to suffer from debilitating headaches.

11

197. After approximately two weeks at Eloy, an immigration officer escorted

12 M.R. to a room with a telephone where she was able to speak to J.R. for the first time.
13 14 The call lasted five minutes.

15

198. J.R. cried during the call, which caused M.R. to cry as well. When she

16 began crying, the immigration officers laughed at her and shook their heads.

17

199. M.R. learned from other women at the facility that the immigration

18

19 officers would frequently laugh as crying mothers spoke with their separated children.

20

200. Over approximately the next month, immigration officers repeatedly

21 ignored M.R.’s written requests to call her son. On the few occasions when she was

22 able to call her son, using money her brother-in-law had placed into an account for 23 24 her, no one answered the phone.

25

201. Nearly a month went by before M.R. finally spoke to J.R. again. M.R.

26 tried to reassure J.R. that they would soon be reunited. J.R. spoke little and, when

27

28

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1 M.R. asked how he was feeling, J.R. told his mother that he did not want to talk about

2 it. 3 4

202. After this call, M.R. went several more weeks without speaking to J.R.

5 because her phone calls continued to go unanswered. On one occasion, a woman

6 answered the phone and gave M.R. a different phone number to try. When M.R.

7 called that number, a woman answered and told her she had the wrong number, and 8
9 that there were no children there.

10

203. M.R. felt panicked, as well as worried for J.R.’s safety and losing what

11 little contact she had with her son.

12

204. M.R. appeared before an immigration judge twice while detained at

13

14 Eloy. At her first hearing, the immigration judge asked her whether she had anyone

15 who could sponsor her for her release, but M.R. did not have anyone. The

16 immigration judge then continued her case.

17

205. On or about June 21, 2018, M.R. appeared before an immigration judge

18

19 for the second time. An officer posted a sign on the hearing room door that instructed

20 M.R. that she could not say anything to the judge other than “yes” or “no” in response

21 to the judge’s questions.

22

206. Although she tried her best, M.R. could not focus on what the judge was

23

24 saying. All M.R. could think about was asking the judge whether her son was safe,

25 but she did not believe she was permitted to talk to the judge about J.R. The

26 immigration judge ordered M.R.’s deportation.

27

28

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1

207. Approximately a week after this hearing, an immigration officer told

2 M.R. that she needed to sign some papers. The officer instructed M.R. to sign a 3 4 statement that she wanted to be deported with her child, and told her that signing the

5 statement was the only way for M.R. to be reunited with J.R. M.R. began to panic,

6 and to ask questions about what would happen to her and her child, but the officer

7 would not answer her questions.

8

9

208. She finally signed the papers because she believed that she would only

10 be reunited with her son if she did so.

11

2. J.R.’s Separation From His Mother

12

209. After immigration officials forcibly separated J.R. from his mother, they

13 put him on a plane to New York, thousands of miles away from her.
14

15

210. It was J.R.’s first time on an airplane. He took two separate flights to

16 New York. He was scared and sad, and thought he would never see his mother again.

17

211. Immigration officers later transferred J.R. to the Cayuga Centers in New

18 York (“Cayuga”), a facility contracts with ORR to provide foster care programs for
19

20 unaccompanied noncitizen children.56 ORR staff subsequently placed him in foster

21 care, where he remained for over two months.

22

23

24 56 See Cayuga Centers Awarded Expanded Grants by U.S. Office of Refugee

25

Resettlement, CAYUGA CENTERS (Mar. 21, 2017) http://cayugacenters.org/news/2017/03/cayuga-centers-awarded-expanded-grants-us-

26 office-refugee-resettlement/; see also Cayuga Centers Provides Foster Care and

Services for Unaccompanied Children, CAYUGA CENTERS (Jun. 21, 2018), 27 http://cayugacenters.org/news/2018/06/cayuga-centers-provides-foster-care-and-

28 services-unaccompanied-children/.

48

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1

212. J.R. did not speak to his mother until two weeks after immigration

2 authorities separated them. During that first call, he cried the entire time and spoke 3 4 little.

5

213. On July 26, 2018, immigration authorities again placed J.R. on two

6 flights from New York to Arizona.

7

3. M.R. and J.R’s Reunification

8 214. On or about July 25, 2018, immigration officers told M.R. that she
9

10 would be leaving Eloy that day. M.R. was terrified that she would be deported

11 without her son, who was turning thirteen years old the next day. She asked the

12 officers, but they told her only that she would receive more information when she

13 arrived at her destination.
14

15

215. M.R. was devastated and began to cry. She wanted desperately to hug

16 her son, to comfort him, and to be with him on his birthday.

17

216. M.R. did not know that Judge Sabraw had issued the injunction in Ms.

18 L. on June 26, 2018, forcing the government to reunite M.R and J.R.
19

20

217. The immigration officers placed her in shackles and put her in a van

21 which took her to an hielera.

22

218. After a long and sleepless night in the hielera, on July 26, 2018,

23 immigration officers escorted M.R. to another room. J.R. was waiting in the room.
24

25 M.R. was overjoyed to hug her son again. M.R. had not seen her son for two-and-a-

26 half months during their forced separation.

27

219. Immigration officials then transferred M.R. and J.R. to Dilley by bus.

28

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1

220. M.R. was constantly nervous when J.R. went anywhere without her at

2 Dilley. When he would leave for the children’s classroom, M.R. worried that he 3 4 would not return. When a group of mothers, including M.R., went to an officer at

5 Dilley and asked how much longer they would be detained, the officer responded by

6 saying that they should stop asking or he would take their kids away again.

7

221. During the time that the government detained M.R. and J.R. at Dilley,

8

9 an asylum officer re-interviewed M.R. and determined that M.R. had a credible fear

10 of persecution in Guatemala. This threshold finding permits M.R. to pursue asylum

11 before an immigration court.

12

222. DHS finally released M.R. and J.R. from Dilley on November 30, 2018,

13

14 after almost four months at Dilley and more than six months after they arrived in the

15 United States.

16

4. M.R. and J.R.’s Harms and Losses

17

223. M.R. suffered severe emotional distress as a result of the forcible

18 separation from her son by the government. She continues to experience symptoms of
19

20 distress to this day.

21

224. Immigration officers failed to provide M.R. with information regarding

22 her son’s well-being or whereabouts during their months-long separation, which

23 increased her acute anxiety and distress.
24

25

225. Throughout M.R.’s detention, particularly during the extended periods

26 in which she was unable to speak with J.R., she was extremely anxious. M.R.

27

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1 struggled to think clearly or concentrate on even basic tasks, and she was easily

2 startled when anyone would try to speak to her.

3

4

226. Also during the time she and J.R. were separated, M.R. suffered from

5 persistent insomnia, and the sleep deprivation and stress triggered excruciating

6 headaches and pain in her eyes. She had no interest in eating and lost weight.

7

227. Even after being reunited with her son, M.R. continued to suffer from

8

9 headaches and insomnia, and she had difficulty concentrating.

10

228. M.R. vomited regularly as a result of her acute anxiety.

11

229. A medical professional working at the medical clinic at Dilley told her

12 that these were symptoms of stress and her continued anxiety and fear that she would
13 14 be separated from her son again.

15

230. Following a mental health evaluation at Dilley, a psychologist

16 diagnosed M.R. with PTSD, finding that after the forced separation from her son,

17 M.R. lived “in a constant state of fear and worry.” To this day, M.R. continues to 18 19 experience symptoms consistent with PTSD, such as problems with memory and
20 concentration, and painful headaches at least once or twice a week.

21

231. J.R. also manifests symptoms stemming from the trauma of his forced

22 separation from his mother.

23

24

232. While at Dilley, J.R. often refused to eat and would become suddenly

25 and inexplicably angry, sometimes storming out of the room when M.R. tried to talk

26 to him about their separation.

27

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1

233. More than a year after their forced separation, J.R. still experiences

2 severe emotional distress as a result of his separation from his mother. J.R. is still 3 4 unable to speak at length or in any detail with his mother about their separation or his

5 time at Cayuga. He becomes angry when asked to discuss the separation. J.R.

6 continues to have a decreased appetite and has lost weight.

7

234. M.R. has also noticed that J.R. spends much more time indoors and he

8

9 is angrier and more rebellious than before the separation.

10

E. O.A. and L.A.

11

1. The Four-Month Separation of O.A. and L.A.

12

235. On or around May 11, 2018, O.A. entered the United States with her

13 then-five-year-old daughter, L.A., after fleeing horrific violence and threats of further
14 15 violence in Guatemala.

16

236. After O.A. and L.A. entered Arizona, immigration officers apprehended

17 them and took them into immigration custody. The immigration officers escorted

18 O.A. and L.A. to an hielera in or near Yuma, Arizona, where the officers locked them 19 20 in a cell with approximately 30 mothers, plus their children.

21

237. O.A. had a bag of clothing that would have helped keep her and L.A.

22 warm, but the immigration officers confiscated the bag and gave them only aluminum

23 foil sheets, which did not provide warmth.

24

25

238. The only food O.A. and L.A. were given all day was two bowls of cold,

26 instant soup that was barely edible.

27

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1

239. Shortly after arriving at the short-term detention center, immigration

2 officers took O.A. and L.A. from the locked cell and ushered them into another room 3 4 where they met with two other uniformed immigration officers, both men. At this

5 time, O.A. told the immigration officers that she feared for her and L.A.’s safety if

6 they returned to Guatemala.

7

240. L.A. was asked to move about 10 steps away from O.A. so that she

8

9 would not hear what the immigration officers were about to tell her mother. The

10 officers then informed O.A. that they would take L.A. away from her and send her to

11 another facility for a couple of days.

12

241. O.A. insisted that the officers could not take her daughter from her. The

13

14 officers responded that, in fact, they could take L.A. away because O.A. had

15 committed a crime. This caused O.A. tremendous anxiety and anguish.

16

242. O.A. begged the officers not to separate L.A. from her. Despite her fear

17 for her and L.A.’s safety if they returned to Guatemala, the prospect of being 18 19 separated from her daughter was so alarming that O.A. offered to leave the United
20 States if she could do so with her daughter. The officers refused and reacted to O.A.’s

21 increasing distress by becoming hostile and screaming at her to be quiet.

22

243. L.A. was not far away from the conversation and could hear the officers

23

24 berating her mother. She understood that the officers were going to take her away,

25 and she began to cry.

26

244. O.A. and L.A. were brought back to the locked cell with the other

27 women and children. O.A. tried to calm her daughter, but L.A. could not stop crying.

28

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1

245. That night, O.A. and L.A. barely slept. There were no beds in the cell.

2 There were some mats, but not enough for everyone. There were no blankets, only 3 4 the foil sheets that did not provide warmth. O.A. slept on a trash bag, the only thing

5 separating her from the cold, concrete floor. L.A. laid on her mother’s arm, the two

6 nearly touching the strangers lying next to them in the packed cell.

7

246. In the morning, O.A. and L.A. were still lying on the floor when O.A.

8

9 heard the immigration officers open the door and begin calling out children’s names.

10 O.A. and L.A. were terrified. When a child’s name was called, O.A. and L.A. saw the

11 child desperately clutch his or her mother as the two cried.

12

247. The officers, both men, would then order the child to line up against the

13

14 wall with the other children. The officers said the children would be taken to shower.

15 O.A. and L.A. watched and waited in horror for L.A.’s name to be called. As they

16 waited, O.A. tried to calm her daughter, telling her she would get to play with other

17 kids and have something better to eat than the cold soup.

18

19

248. L.A.’s name was called. She grabbed O.A. tightly and begged her

20 mother not to allow the strangers to take her away. O.A. again tried to soothe her

21 daughter, assuring her that the officers were just taking L.A. to play.

22

249. The immigration officer called L.A.’s name again, this time yelling it

23

24 angrily. Two officers, both men, then approached O.A. and L.A. They roughly

25 grabbed L.A.’s arm and pulled her away from her mother. O.A. begged the officers to

26 let her give L.A. some juice before they took her away because her lips were dry from

27

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1 thirst. The officers refused to let her, yelling that they needed to hurry up because an

2 airplane was waiting for the children.

3

4

250. Until that moment, O.A. had assumed L.A. would be moved to a facility

5 nearby. It was the first time she realized that her five-year-old daughter, who did not

6 speak English and had never been on an airplane, would be taken so far away from

7 her. O.A. asked where L.A. was being sent. The officers did not answer her.

8

9

251. Shortly after the officers forcibly ripped L.A. from her mother’s arms, a

10 woman, whom O.A. believed to be a social worker, brought L.A. to the showers. A

11 few moments later, an officer called O.A. from the cell and explained that L.A. had

12 refused to let anyone but her mother shower her. O.A. went into the showers, washed
13 14 her daughter, quietly gave her some juice, and said good-bye.

15

252. Once the children were showered, a man and a woman, whom O.A.

16 understood to be social workers, told a group of mothers that they would now be

17 taking the children away. The social workers told the mothers not to worry because 18 19 the children would be taken care of and given toys to play with.

20

253. The female social worker also told the mothers that their children would

21 be boarding an airplane. O.A. asked her where the children were going, but the

22 woman did not tell her.

23

24

254. During this conversation with the social worker, the children were in the

25 area, off to the side. It was the last time O.A. saw L.A. before the social workers took

26 L.A. away. O.A. would not see L.A. again for four months and one day.

27

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1

255. After officers forcibly separated O.A. and L.A., O.A. spent two more

2 days at the short-term detention center, sleeping on the floor at night. She asked 3 4 immigration officers several times about her daughter, but they gave her no answers.

5

256. O.A. was moved to the Santa Cruz County Detention Center in Arizona

6 (“Santa Cruz”), where she was held for approximately one to two weeks.

7

257. During her time at Santa Cruz, despite O.A.’s repeated inquiries, no one

8

9 told her anything about L.A.’s whereabouts or well-being.

10

258. O.A. was next transferred to the Nevada Southern Detention Center in

11 Pahrump, Nevada (“Nevada Southern”), where immigration officers held her for

12 approximately two months. O.A. regularly asked officers at Nevada Southern about
13 14 her daughter, but they gave her no information.

15

259. While detained at Nevada Southern, O.A. had a conversation with a

16 woman who had been separated from her granddaughter. The woman gave O.A. the

17 telephone number of a social worker at a shelter in New York where immigration 18 19 authorities had taken her granddaughter. O.A. gave the number to her brother, who
20 was living in Florida, and asked him to contact the social worker, in hopes that the

21 social worker might be able to locate L.A. O.A.’s brother contacted the social

22 worker, who was able to locate L.A. at Cayuga.

23

24

260. Weeks after immigration authorities forcibly separated them, O.A. and

25 L.A. were finally able to speak to each other on the telephone. L.A. cried and said she

26 did not want to be there. She asked her mother where she was, too young to

27 understand that she was thousands of miles away.

28

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1

261. From the time that immigration authorities forcibly separated O.A. and

2 L.A. until the time of their first telephone call weeks later, no immigration officer 3 4 provided O.A. with any information about her daughter’s whereabouts or well-being,

5 or assisted her in locating L.A.

6

262. Instead, O.A., from her detention center in Nevada, located L.A. based

7 on information from another detained woman and the help of her brother in Florida 8
9 and a social worker in New York.

10

263. A social worker at Cayuga informed O.A. that if the government

11 deported O.A., L.A. might remain at Cayuga. Frightened at the idea of L.A. being left

12 alone in a shelter, O.A. arranged to have her brother apply to ORR for permission to
13 14 sponsor L.A. and bring her to live with him in Florida.

15

264. In late June 2018, an asylum officer conducted an initial screening of

16 O.A’s asylum claim by conducting a credible fear interview in English through an

17 interpreter. The interview ended before O.A. finished explaining her claim. The 18 19 asylum officer then determined that O.A. did not establish a credible fear of
20 persecution in Guatemala.

21

265. In early July, immigration authorities released L.A. to O.A.’s brother,

22 who brought L.A. to live with him in Florida.

23

24

266. In mid-July 2018, an immigration judge, limited to the record before the

25 asylum officer, sustained the asylum officer’s determination that O.A. had not

26 established a credible fear of persecution, therefore subjecting O.A. to expedited

27 removal.

28

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1

267. One night in mid-August, immigration officers woke O.A. in her cell

2 and instructed her to pack her belongings. The officers informed her that she was 3 4 being transferred to Arizona for immediate deportation.

5

268. The officers shackled O.A.s’ hands and ankles and put her on a bus with

6 other detained individuals.

7

269. O.A. was initially brought to a facility in Las Vegas, Nevada. There,

8

9 she pleaded with a male officer not to deport her because her daughter was still in the

10 country. The officer responded by scolding O.A. for bringing her daughter to the

11 United States.

12

270. An officer handed O.A. documents with her picture attached and asked

13

14 if it was her. After O.A. said yes, the officer told her to sign the documents. An

15 officer removed O.A.’s handcuffs so that she could sign the documents, but O.A.

16 refused because she did not know what the documents said, as they were written in

17 English.

18

19

271. A female officer, armed with a taser, pushed O.A., still shackled at the

20 ankles, against a wall and threatened to tase her if she did not sign.

21

272. Not wanting to sign a document she could not read, O.A. drew a line

22 above the signature line instead of her signature. Officers then put O.A. on a bus to 23 24 the airport where she was escorted onto a flight to Arizona.

25

273. When O.A. arrived in Arizona, immigration officers transported her to

26 the Eloy Detention Center and then, shortly after, to the Florence Correctional Center.

27

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1

274. At the Florence Correctional Center, officers brought O.A. and other

2 detained individuals to a trailer and told them they would spend the night there before 3 4 being deported in the morning. Again, O.A. pleaded with the officers not to deport

5 her without L.A.

6

275. After O.A.’s persistent pleas, one of the immigration officers finally

7 allowed her to call her brother in Florida. O.A.’s brother contacted O.A.’s 8
9 immigration attorney, who promptly sought a stay of O.A.’s removal in court.

10

276. The court temporarily stayed O.A.’s deportation.

11

277. In late August or early September, O.A. was transferred back to the

12 Eloy Detention Center in Arizona. She stayed there for approximately one week
13 14 before she was transferred to the Henderson Detention Center in Henderson, Nevada.

15

278. In addition to housing individuals on behalf of ICE, Henderson also

16 houses individuals charged with criminal offenses.

17

279. O.A. was terrified and treated harshly at Henderson. At one meal, an

18

19 inmate pushed her causing her to drop her tray. A prison guard told O.A. that she

20 would be tased if she dropped her tray again.

21

280. At Henderson, after a visit from her immigration attorney, a jail guard

22 strip-searched O.A., ordering her to remove all her clothing—including her 23 24 underwear—bend over, and cough. O.A. was humiliated.

25

2. L.A.’s Separation From Her Mother

26

281. While her mother was suffering traumatic experiences in a variety of

27 detention centers, L.A. experienced her own trauma on the other side of the country.

28

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1 After immigration officers forcibly separated L.A. from her mother on or about May

2 12, 2018, government employees took five-year-old L.A. to Cayuga in New York.

3

4

282. L.A. arrived at Cayuga after midnight on May 15, 2018. Cayuga staff

5 started their intake interview of L.A. at approximately 2:30 a.m. L.A. was crying and

6 asked for her mother. No one at Cayuga told her where her mother was or when she

7 would see her again.

8

9

283. During her time at Cayuga, L.A. became extremely ill. On or about

10 June 13, 2018, L.A. was sent to an onsite medical clinic because she had a rash on her

11 face, a bloody nose and a cough. The notes from the visit indicate that L.A.
12 “continues to express discomfort and is not adjusting well to the program.” The staff 13 14 also noted that L.A. “misses her mother and wants to be with her.” Staff also
15 recorded that it “attempted to help [L.A.] contain her emotions, but minor is not

16 coping well,” and that L.A. did not appear “stable and engaged when discussing all

17 the questions asked, because she is in distress and cries for her mother.” Observations 18 19 by Cayuga staff also included references to L.A. crying often.

20

284. On June 15, 2018, L.A. told Cayuga staff that she was still feeling pain

21 and discomfort. Cayuga staff escorted L.A. back to the medical clinic. Records

22 reflect that Cayuga staff noted the same observations from her June 13, 2018 visit to 23 24 the clinic, namely that L.A. did not appear “stable and engaged,” that she cried often
25 for her mother, and was in a state of distress. During her June 15, 2018 visit to the

26 clinic, L.A. was prescribed antibiotics.

27

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285. On or about June 18, 2018, Cayuga staff noted that L.A. had not been

2 given the antibiotics prescribed to her on June 15, 2018. Cayuga staff again brought 3 4 L.A. to the clinic because staff “observed minor bleeding through her nose, pus

5 coming out of her ear, and crying.” On June 18, 2018, L.A. finally was given

6 ibuprofen, Amoxicillin and other antibiotics. This was five days after the clinic first

7 became aware of her symptoms.

8

9

286. On or about June 26, 2018, an insect bit L.A. L.A. did not receive

10 proper treatment and an infection developed on her arm, requiring her to be taken to

11 an urgent care facility.

12

3. L.A. and O.A.’s Reunification

13 287. On or about September 13, 2018, DHS transferred O.A. to Dilley.
14

15

288. The same day O.A. arrived at Dilley, O.A.’s brother brought L.A. to be

16 with her. Four months and one day after the government forcibly separated them,

17 O.A. and L.A. were finally reunited and able to hug each other. 18
289. When L.A. entered the room, she turned to an officer and said, “please 19 20 don’t take my mommy away.”

21

290. In October 2018, immigration authorities agreed to re-screen O.A.’s

22 asylum claim. After having the opportunity to tell her entire story, the asylum officer

23 determined that O.A. had established a credible fear of persecution.
24

25

291. DHS released O.A. and L.A. from Dilley on or about November 15,

26 2018, after more than two months there, and more than six months after they arrived

27 in the United States.

28

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1

4. O.A.’s and L.A.’s Harms and Losses

2

292. As a result of the government’s actions described above, O.A. suffered,

3 and continues to suffer, severe emotional distress.
4

5

293. The terrifying circumstances of the forced separation, not knowing

6 L.A.’s whereabouts or about her well-being for weeks, the very limited

7 communication with her daughter, and the four-month separation—during which she

8 narrowly escaped being deported without L.A.—have tormented O.A.
9

10

294. O.A. was so consumed with worry while she was detained that she was

11 frequently unable to sleep and suffered nightmares when she did.

12

295. While detained, O.A.’s appetite diminished, and she lost weight.

13 296. O.A. also suffered from chronic headaches, experienced dizzy spells,
14

15 and started losing her hair during her detention.

16

297. O.A. received occasional physical check-ups from detention center

17 medical staff; however, on at least two occasions she filled out paperwork to see a 18
doctor about her symptoms, and no one at the detention center ever answered those 19 20 requests.

21

298. L.A. also has experienced severe emotional distress, fear, and mental

22 anguish as a result of being forcibly separated from her mother for over four months.
23 299. During the approximately two months that she was separated from her
24 25 mother while detained at Cayuga, L.A. received no information about her mother.

26 L.A. had no idea what would happen to her or her mother.

27

28

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1

300. L.A. also received inadequate medical care while detained at Cayuga,

2 which exacerbated her already distressed state.

3

4

301. L.A. has continued to suffer severe emotional distress since her release

5 from detention.

6

302. L.A. experiences nightmares. O.A. is often woken by her daughter in

7 the middle of the night, still asleep and sweating, screaming, “mama, mama.”

8

9

303. On occasion, L.A. will say to her mother, unprompted, “don’t let them

10 take me away again.”

11

F. V.C. and G.A.

12

1. The Two-And-A-Half Month Separation of V.C. and G.A.

13

304. On or around May 8, 2018, V.C. entered the United States with her then

14

15 six-year-old son, G.A., after fleeing horrific violence and threats of violence in

16 Guatemala.

17

305. When V.C. and G.A. crossed the border from Mexico into Arizona,

18 immigration officials apprehended them and brought them to one of the short-term 19 20 detention facilities, an hielera, in Florence, Arizona.

21

306. Shortly after V.C. and G.A. arrived at the hielera, immigration officers

22 told V.C. that because she did not enter through an official port of entry, the U.S.

23 government would detain her for years, take G.A. away from her, and send him to a 24 25 shelter.

26

307. The immigration officers put V.C. in a cell with other women, and put

27 G.A. in a different cell with other young children.

28

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308. V.C. was terrified. She could not see or hear G.A. from her cell.

2

309. At night, the immigration officers brought the parents to the children’s

3

4 cell.

5

310. V.C. and G.A. spent two days and nights like this—apart during the day

6 and together only at night.

7

311. During those two nights, V.C. tried to explain to G.A. that immigration

8

9 officers would take him to a shelter for a while, and that she would see him again

10 soon. G.A. cried hearing the news.

11

312. On their second morning in the hielera, on or around May 10, an

12 immigration officer told V.C. and the other mothers to get up because they were
13 14 sending their children to a shelter that day.

15

313. V.C. witnessed immigration officers take groups of approximately 10

16 parents and 10 children to another room.

17

314. When an immigration officer called their names, V.C. and G.A. joined a

18

19 small group of other mothers, fathers, and children. The immigration officer took

20 them to a room with a shower and told the parents to line up to bathe their children.

21

315. V.C. witnessed parents and children crying as they waited in line to use

22 the shower.

23

24

316. The immigration officer said laughingly: “Don’t cry today, today is a

25 happy day. It’s Mother’s Day.”

26

317. V.C. knew the officer was taunting the parents about taking their

27 children away. V.C. was upset and traumatized by the officer’s mockery.

28

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318. After bathing G.A., V.C. dressed him and waited for the other parents to

2 do the same.

3

4

319. The immigration officer then led the parents and children back to the

5 children’s cell, where he told the parents to say good-bye.

6

320. The officer called the children’s names one by one and told them to line

7 up against the wall of the cell.

8

9

321. Officers told the parents to remain in a line against the other wall. V.C.

10 and G.A. clung to each other and cried.

11

322. V.C. watched as an officer forcibly ripped a child from his mother’s

12 arms.

13

14

323. V.C. tried to comfort G.A., but she was sobbing so much she could

15 barely speak.

16

324. A woman who identified herself as a social worker told V.C. not to

17 worry, that her son was going to a shelter in New York, and that she should get a 18 19 lawyer and fight her case in order to stay in the country with her son.

20

325. The social worker’s comments provided little comfort to V.C. She

21 could not afford a lawyer and had no idea how long it would be before she saw G.A.

22 again.

23

24

326. G.A. did not want to leave his mother. The immigration officer called

25 his name, and, sobbing, G.A. got into line with the other children.

26

27

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327. Without any words of comfort and without the slightest show of

2 compassion, the immigration officer led G.A. and the other children out of the room 3 4 and closed the door.

5

328. After taking their children, the immigration officer did not give V.C.

6 and the other parents any information about where their children were going or when

7 the parents would speak to their children again.

8

9

329. Instead, the immigration officer took the parents back to the holding

10 cells as if nothing had happened.

11

330. V.C. remained in the holding cell with nearly 80 other women for

12 approximately four more days. The cell was over-crowded. It had no beds, and the
13 14 women slept on the floor with only sheets of aluminum for warmth. There was only

15 one toilet and one sink for all of the women.

16

331. On or around May 14, four days after the government took away V.C.’s

17 son, immigration officers put V.C. and the other women in handcuffs and shackles 18 19 and took them on a bus to the Santa Cruz County Jail.

20

332. Upon arrival at the jail, officers forced V.C. and the other women to

21 strip naked and submit to a search. While V.C. was naked, a female officer at the

22 center told V.C. to bend over and cough three times. V.C. did as she was told, but felt 23 24 distraught and humiliated.

25

333. Approximately four days later, immigration officers again put V.C. and

26 the other women in shackles and made them board another bus.

27

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334. The officers told the women that they were going to an airport to be

2 deported. Everyone began crying. V.C. was terrified that she was being sent back to 3 4 Guatemala without G.A.

5

335. When the women protested, an officer said callously, “So, why did you

6 come into this country?”

7

336. At the airport, V.C. and the other women, still in shackles, boarded the

8

9 plane, along with the immigration officers.

10

337. During the flight, a woman on the plane who may have worked for the

11 airline, told the women not to cry, that the plane was going to Las Vegas, not

12 Guatemala. She told the women that she understood their fear because she was a
13 14 mother herself.

15

338. While V.C. wanted to believe the woman, she thought she was just

16 trying to make them feel better. It was not until the plane was landing and she saw a

17 sign on the ground with the words “Las Vegas” that V.C. realized they were still in 18 19 the United States.

20

339. In Las Vegas, the immigration officers loaded V.C. and the other

21 women, still in handcuffs and shackles, onto another bus and took them to the Nevada

22 Southern Detention Center.

23

24

340. When V.C. arrived there, immigration officers told her and the other

25 women that they would go before a judge and that if they won their cases, they could

26 remain in the United States, but if they lost, they would be deported.

27

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1

341. On or about June 5, immigration officers took V.C. to a room in the

2 detention center where she spoke to a judge via videoconference. V.C. begged the 3 4 judge not to deport her without her son. Nevertheless, the judge told her that he was

5 ordering her deportation.

6

342. When V.C. returned to her cell, she received a paper in English from an

7 immigration officer. A woman in the cell who spoke English told V.C. that it was her 8
9 deportation order. V.C. was certain that the U.S. government would send her back to

10 Guatemala without G.A., and that she would never see her son again.

11

343. Approximately a week after V.C.’s immigration hearing, a member of

12 the Guatemalan consulate contacted her and told her that she was scheduled to board a
13 14 plane back to Guatemala that afternoon. When V.C. asked about her son, the

15 Guatemalan official told her that it might take as long as six months for the U.S.

16 government to locate G.A. and send him back to Guatemala.

17

344. The consular official told V.C. that if she stayed in the United States,

18

19 she would have to spend six more months in jail. Because V.C. was so fearful of

20 being deported without G.A., she readily agreed to stay in detention for six months.

21

345. The consular official, however, replied that V.C. did not have a choice

22 and she would be deported that day. V.C. was terrified.

23

24

346. For reasons unknown to V.C., she was not deported as planned, and she

25 remained in the detention center for a total of approximately two months.

26

347. While in detention, V.C. cried every day. She barely ate or slept. She

27 had headaches and toothaches. During this time, other mothers detained with V.C.

28

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1 were deported without their children. V.C. was constantly terrified that she would be

2 deported without her son.

3

4

348. During her two months in Nevada, V.C. repeatedly asked for

5 information about G.A. A caseworker in the detention center spoke Spanish, and she

6 helped V.C. and other women draft a petition asking the immigration officers to let

7 them speak to their children. The petition, which the women presented to 8
9 immigration officers at the detention center, had no impact.

10

349. G.A. turned seven while V.C. was in Nevada. He spent his seventh

11 birthday separated from his mother.

12

350. On G.A.’s birthday, V.C. was beside herself. She spent the day crying

13

14 at the thought that her little boy was somewhere turning seven, all by himself.

15

351. By early July, V.C. had been separated from G.A. for almost two

16 months. She had not spoken to G.A., and she had no idea where he was. Finally, on

17 July 6, an immigration officer called V.C.’s name and took her to a telephone to speak 18 19 to G.A.

20

352. As soon as G.A. heard his mother’s voice, he started to cry. He cried

21 throughout the phone call, which lasted about ten minutes.

22

353. During the call, V.C. also spoke to the social worker at Cayuga, the

23

24 facility in New York where immigration authorities had transferred G.A. V.C.

25 understood from the social worker that G.A. was not eating and would not get out of

26 bed, and that he spent all his time crying. This report from the social worker made

27 V.C. more distressed.

28

69

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1

354. About a week later, immigration officers allowed V.C. to call G.A. a

2 second time. Again, G.A. cried for the duration of the call.

3

4

2. G.A.’s Separation From His Mother

5

355. After immigration officials forcibly separated G.A. from his mother,

6 G.A. was put on an airplane for the first time in his life and flown to New York,

7 thousands of miles away from his mother. 8
356. G.A. spent two and a half months in ORR custody. Immigation 9 10 authorities placed G.A. at Cayuga.

11

357. ORR staff sent G.A to stay with a foster family on weekends, even

12 though his mother was in the United States and desperately asking to be reunited with

13 him.
14

15

358. G.A. waited almost two months before he was permitted to speak to his

16 mother. He cried when he heard her voice on the phone.

17

3. V.C. and G.A.’s Reunification

18

359. The government was forced to reunite V.C. and G.A. after Judge

19

20 Sabraw issued the injunction in Ms. L. on June 26, 2018. To that end, on or around

21 July 18, immigration officers took V.C. from the detention center in Nevada and sent

22 her to Port Isabel in Texas. Again, the immigration officers handcuffed and shackled

23 V.C. during the transfer. In Port Isabel, immigration officers told V.C. that she would 24 25 be reunited with her son.

26

360. Finally, a week later, on or around July 25, after two and half months of

27 separation from his mother, G.A. arrived in Port Isabel.

28

70

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1

361. V.C. and G.A. were so relieved to be reunited that they both cried.

2

362. Immigration officers then transferred V.C. and G.A. to Dilley.

3

4

363. During the time that the government detained V.C. and G.A. at Dilley,

5 an asylum officer interviewed G.A. and determined that G.A. had a credible fear of

6 persecution in Guatemala. This threshold finding allowed G.A. to pursue his asylum

7 claim before an immigration court.

8

9

364. Following the credible fear interview, DHS finally released V.C. and

10 G.A. at the end of November 2018, after four months in Dilley and more than six

11 months in detention.

12

4. V.C. and G.A.’s Harms and Losses

13 365. V.C. suffered severe emotional distress as a result of the forcible
14

15 separation from her son by the government, and she continues to experience

16 symptoms of distress to this day.

17

366. Immigration officers failed to provide V.C. with information regarding

18 her son’s well-being or whereabouts for months, which increased her acute anxiety
19

20 and distress.

21

367. V.C. worried about her child constantly.

22

368. V.C. cried all the time.

23 369. V.C. was so overwhelmed by feelings of loss, despair, fear, and grief
24

25 that she was unable to sleep, had no appetite, and suffered from chronic headaches.

26

370. V.C. even lost her ability to recall words and speak normally, which

27 increased her feelings of helplessness.

28

71

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 74 of 77

1

371. During her time at Dilley, V.C. continued to experience headaches and

2 wanted to sleep all day. She did not have energy to do anything else.

3

4

372. V.C.’s emotional distress was, and is, all the more severe because the

5 separation inflicted long-term harm on her son, and on V.C. and G.A.’s relationship.

6

373. During their time at Dilley, G.A. told V.C. on several occasions that she

7 was not his mother anymore because V.C. allowed G.A. to be taken away from her.

8

9

374. V.C. was heartbroken when she heard this; she did not believe that she

10 would ever be happy again, or that her son would ever again feel safe.

11

375. Medical personnel at Dilley examined V.C. and prescribed medication.

12 No one provided V.C. with the name of the medication.

13

14

376. Eventually, the medication helped lessen the severity of V.C.’s

15 headaches and lack of energy; however, she still suffers from headaches caused by the

16 stress she experienced in immigration detention.

17

377. A clinical social worker conducted a psychological evaluation of V.C. at

18

19 Dilley and confirmed that V.C. suffered trauma as a result of the separation from

20 G.A., as well as from the accompanying misinformation and lack of information

21 concerning G.A.’s safety, well-being, and whereabouts after the immigration officers

22 took G.A. from her.

23

24

378. The clinical social worker further concluded that V.C. exhibited

25 symptoms consistent with PTSD.

26

379. Medical personnel at Dilley also examined G.A. because he appeared

27 angry and easily frustrated.

28

72

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 75 of 77

1

380. The medical personnel told V.C. that G.A. was acting out because he

2 was traumatized by their separation.

3

4

381. Prescription medications eventually made G.A. calmer. No one

5 informed V.C. what medication G.A. was prescribed.

6

382. V.C. continues to be concerned about G.A.’s well-being and worries

7 that her relationship with her son may never recover.

8

9

383. Since being reunited, G.A. has continued to experience severe

10 emotional distress resulting from the separation.

11

384. G.A. becomes angry more easily and frequently than before

12 immigration officers took him away from his mother, and he continues to blame V.C.
13 14 for the separation.

15

385. For several months after V.C. and G.A. were released from detention,

16 G.A. never wanted to be apart from his mother, especially when he went to school.

17 During those months, he was constantly nervous, and he cried whenever V.C. took 18 19 him to school.

20

386. V.C. believes that her son lives in fear of someone taking him away

21 again.

22

COUNT I

23

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

24

387. By engaging in the acts described in this Complaint, the federal officers

25 and officials referenced above engaged in extreme and outrageous conduct with an
26

27

28

73

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 76 of 77

1 intent to cause, or a reckless disregard of the probability of causing, Plaintiffs to suffer

2 severe emotional distress.

3

4

388. As a direct and proximate result of that conduct, Plaintiffs suffered

5 severe emotional distress.

6

389. Under the Federal Tort Claims Act, the United States is liable to

7 Plaintiffs for intentional infliction of emotional distress.

8

9

COUNT II NEGLIGENCE

10 390. The federal officers referenced above had a duty to Plaintiffs to act with
11

12 ordinary care and prudence so as not to cause harm or injury to Plaintiffs.

13

391. By engaging in the acts alleged herein, the federal officers referenced

14 above failed to act with ordinary care and breached their duty of care owed to

15 Plaintiffs.
16

17

392. As a direct and proximate result of the referenced conduct, Plaintiffs

18 suffered substantial damages.

19

393. Under the Federal Tort Claims Act, the United States is liable to

20 Plaintiffs for negligence.
21

22

PRAYER FOR RELIEF

23

WHEREFORE, Plaintiffs respectfully request:

24

A. Compensatory damages;

25 B. Attorneys’ fees and costs pursuant to, among other provisions, the Equal
26

27

Access to Justice Act, 28 U.S.C. § 2412; and

28

74

Case 2:19-cv-05217-SRB Document 1 Filed 09/19/19 Page 77 of 77

1

C. Such other and further relief as the Court deems just and appropriate.

2

RESPECTFULLY SUBMITTED this 19th day of September, 2019.

3 /s/ David B. Rosenbaum

4

David B. Rosenbaum OSBORN MALEDON, P.A.

5

2929 North Central Avenue, 21st Floor

6 Phoenix, Arizona 85012-2793

7

R. Stanton Jones* Daniel Jacobson*

8 Emily Reeder*

Jonathan H. Feinberg* Kairys, Rudovsky, Messing, Feinberg
& Lin LLP The Cast Iron Building 718 Arch Street, Suite 501 South Philadelphia, PA 19106 215-925-4400 jfeinberg@krlawphila.com

9 10 11 12 13

Arnold & Porter Kaye Scholer LLP 601 Massachusetts Avenue, NW Washington, DC 20001 202-942-5000 stanton.jones@arnoldporter.com daniel.jacobson@arnoldporter.com emily.reeder@arnoldporter.com
Lucy McMillan*

Mark Fleming* Katherine Melloy Goettel* National Immigrant Justice Center 224 S. Michigan Ave., Suite 600 Chicago, IL 60604 312-660-1370 mfleming@heartlandalliance.org kgoettel@heartlandalliance.org

14 15 16 17 18 19

Diana Reiter* Erik Walsh* Tanya Kalivas* Kaitlyn Schaeffer* Arnold & Porter Kaye Scholer LLP 250 West 55th Street | New York, New York 10019-9710 212-836-8000 lucy.mcmillan@arnoldporter.com

Trina Realmuto* Emma Winger* American Immigration Council 1318 Beacon Street, Suite 18 Brookline, MA 02446 857-305-3600 trealmuto@immcouncil.org ewinger@immcouncil.org

20 21 22

diana.reiter@arnoldporter.com erik.walsh@arnoldporter.com tanya.kalivas@arnoldporter.com kaitlyn.schaeffer@arnoldporter.com

Mary Kenney* Claudia Valenzuela* American Immigration Council 1331 G Street NW, Suite 200

23

Washington, DC 20005 202-507-7512

24

202-742-5619

mkenney@immcouncil.org

25

cvalenzuela@immcouncil.org

26

Attorneys for Plaintiffs

27 * Pro hac vice application forthcoming

28

75

 
 C.M. v. United States, Slip Copy (2020) 2020 WL 1698191
2020 WL 1698191 Only the Westlaw citation is currently available.
NOT FOR PUBLICATION United States District Court, D. Arizona.
C.M., et al., Plaintiffs, v.
UNITED STATES of America, Defendant.
No. CV-19-05217-PHX-SRB |
Signed 03/30/2020
Attorneys and Law Firms
Claudia Valenzuela, Mary Kenney, Pro Hac Vice, American Immigration Council, Daniel F. Jacobson, Pro Hac Vice, Emily Anne Reeder, Pro Hac Vice, Robert Stanton Jones, Pro Hac Vice, Arnold & Porter LLP, Washington, DC, David B. Rosenbaum, Emma Jane Cone-Roddy, Travis Charles Hunt, Osborn Maledon PA, Phoenix, AZ, Diana E. Reiter, Pro Hac Vice, Kaitlyn Schaeffer, Pro Hac Vice, Tanya Eleni Kalivas, Erik Christopher Walsh, Lucy Sarah McMillan, Pro Hac Vice, Arnold & Porter Kaye Scholer LLP, New York, NY, Emma Curtis Winger, Trina Realmuto, Pro Hac Vice, American Immigration Council, Brookline, MA, Jonathan Howard Feinberg, Kairys Rudovsky Messing Feinberg & Lin LLP, Philadelphia, PA, Katherine Melloy Goettel, Pro Hac Vice, Mark Michael Fleming, Pro Hac Vice, National Immigrant Justice Center, Chicago, IL, for Plaintiffs.
Philip Davis MacWilliams, Theodore William Atkinson, US Dept. of Justice, Washington, DC, for Defendant.

2020.
I. BACKGROUND Plaintiffs C.M., B.M., L.G., B.G, M.R., J.R., O.A., L.A., V.C., and G.A. (collectively, “Plaintiffs”) are five mothers and their respective children who were forcibly separated by federal officers while detained at various immigration holding centers in Arizona. (Doc. 1, Compl. ¶¶ 5, 11–15.) Each family remained separated for more than two months. (Id. ¶ 5.) During that time, the federal government provided only limited information to each mother about her child’s whereabouts and well-being and afforded only minimal opportunities for each mother and child to communicate. (Id. ¶ 5.) Four of the children were transferred to shelters in New York. (Id. ¶¶ 99, 193, 281, 324.) As a result of the separation, Plaintiffs allege that they suffered, and continue to suffer, substantial trauma. (Id. ¶ 5.)
Plaintiffs filed suit on September 19, 2019, alleging two 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”); and (2) negligence. (Id. ¶¶ 387–93.) Plaintiffs seek compensatory damages. (Id. ¶ 394(A).)
On December 23, 2019, the United States filed its Motion requesting dismissal for lack of jurisdiction. (Mot.) Plaintiffs filed their Opposition to Defendant’s Motion to Dismiss (“Response”) on February 6, 2020. (Doc. 19, Opp’n to Def.’s Mot. (“Resp.”).)

ORDER
Susan R. Bolton, United States District Judge
*1 The Court now considers Defendant United States’ Motion and Memorandum in Support of the United States’ Motion to Dismiss (“Motion”) (Doc. 18, (“Mot.”)). The Court heard oral argument on March 24,

II. LEGAL STANDARD AND ANALYSIS
A. Rule 12(b)(1) Motion to Dismiss The United States’ Motion attacks the 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

C.M. v. United States, Slip Copy (2020) 2020 WL 1698191
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 (1993). Plaintiffs bear the burden of establishing a court’s subject-matter jurisdiction. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010).
B. Jurisdiction under the FTCA 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 (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. Fed. Bureau of Investigation, 916 F.3d 1202, 1249 (9th Cir. 2019) (quoting 28 U.S.C. § 1346(b)(1)). The FTCA’s general waiver of immunity, however, is subject to several exceptions. Dolan v. U.S. Postal Serv., 546 U.S. 481, 485 (2006). Section 2680(a), 28 U.S.C., provides that this waiver shall not apply to:
*2 Any claim [1] based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or [2] based upon the exercise or performance 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.
28 U.S.C. § 2680(a) (bracketed numerals added). The Court refers to [1] as the “due care exception” and [2] as the “discretionary function exception.” The United States argues that both exceptions apply. (Mot. at 9.)
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)).
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 (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 requires a court only “to find the most reasonable analogy.” 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)).
Plaintiffs bring claims of IIED and negligence. (Compl. ¶¶ 387–93.) This Court recently recognized the viability of an IIED claim brought under the FTCA simply where “[federal] agents’ actions were motivated by malice.” Martinez v. United States, 2018 WL 3359562, at *10–12 (D. Ariz. July 10, 2018) (citing Gasho v. United States, 39 F.3d 1420, 1434 (9th Cir. 1994)). The Complaint contains ample factual allegations suggesting that the government’s separation of families was motivated by malice. (See Compl. ¶¶ 27–29, 31–33, 38, 39, 40–41, 43, 45, 50, 53, 71–72, 76–83, 127–32, 182–90, 244–49, 314–17.) This Court also recently recognized the viability of a negligence claim brought under the FTCA where plaintiffs alleged that federal employees’ placement of a prisoner in a certain cell was negligent. Estate of Smith v. Shartle, No. CV-18-00323-TUC-RCC, 2020 WL 1158552, at *1 (D. Ariz. Mar. 10, 2020). Estate of Smith reasoned:
[l]ike a nursing facility employee, a BOP employee is tasked with the care of persons who are dependent upon them to make daily housing and safety determinations. And,

C.M. v. United States, Slip Copy (2020) 2020 WL 1698191
like nursing care employees, BOP has a duty to ensure the safety of the persons who reside at the facility.
2020 WL 1158552, at *1–2 (citing 28 U.S.C. § 4042(2)). Federal immigration officials, too, are tasked with the care and custody of those they detain, and owe detainees at least a minimal level of care. See, e.g., Flores v. Sessions, No. 85-CV-4544 (C.D. Cal. Feb. 2, 2015) (ECF No. 101) (“Flores Settlement Agreement”).
The United States argues that “[b]ecause only the [f]ederal government has the authority to enforce the Nation’s immigration laws and applicable state law does not impose liability on private persons for failing to enforce [f]ederal law,” no private analogue exists. (Mot. at 19–20.) A private analogue, however, need only exist under “like circumstances,” not “under the same circumstances.” Indian Towing Co. v. United States, 350 U.S. 61, 64 (1955) (emphasis added). Plaintiffs have demonstrated a private analogue under like circumstances. The Court therefore has subject-matter jurisdiction under the FTCA unless the United States proves that an exception applies.
2. Due Care Exception
*3 The United States argues that “[f]or the due care exception to apply, the government need only be authorized by statute or regulation to take the course of action that caused the harm,” citing Borquez v. United States.1 In Borquez, plaintiffs brought an FTCA claim against the government for the negligent maintenance and operation of a dam. Id. at 1051. The government had previously transferred responsibility for maintaining and operating the dam to a corporation pursuant to a statute that explicitly and specifically authorized it to do so.2 Id. at 1052 (citing 43 U.S.C. § 499). Because the plaintiffs’ claim “represent[ed] a challenge to the statutory authority of the government” to transfer responsibility for the dam to a corporation—a type of challenge the exception was designed to prohibit—the exception applied. Id.
Plaintiffs’ claims present no such challenge. The United States has cited to no statute explicitly authorizing the government to detain parents and children in separate facilities before it has charged either with a crime. Indeed,

no such statute exists. Borquez, therefore, is inapposite.
Following other courts in this circuit, the Court applies the two-prong test established by Welch v. United States3 to determine whether the due care exception applies. See Ferguson v. United States, No. 15CV1253 JM (DHB), 2016 WL 4793180, at *7 (S.D. Cal. Sept. 14, 2016) (applying Welch’s two-part test); Kwai Fun Wong v. Beebe, No. CIV. 01-718-ST, 2006 WL 977746, at *7–8 (D. Or. Apr. 10, 2006) (same). Under Welch, the due care exception applies if (1) the statute or regulation in question “specifically pr[e]scribes a course of action for an officer to follow,” and (2) “the officer exercised due care in following the dictates of that statute or regulation.” Welch, 409 F.3d at 652 (citing Crumpton v. Stone, 59 F.3d 1400, 1403 (D.C. Cir. 1995)). Otherwise stated, the due care exception applies only when an official was “reasonably executing the mandates of” a statute or regulation. Id. at 651.
The United States cites no statute or regulation mandating the separation of Plaintiffs upon their entry into the country. It cites no statute or regulation requiring the detention of individuals who are “amenable to prosecution”4 in facilities different from those who are not “amenable to prosecution.” Further, family separation was established by executive policy—not by a statute or regulation—which is not covered by the due care exception. (See Compl. ¶¶ 23, 31, 34; Garcia-Feliciano v. United States, No. CIV. 12-1959 SCC, 2014 WL 1653143, at *4 n.8 (D.P.R. Apr. 23, 2014) (due care exception “would not apply here, however, because a policy—not a statute or regulation—pr[e]scribed the deputy’s conduct”).) The United States has failed to prove that the due care exception applies.
3. Discretionary Function Exception
*4 The discretionary function exception bars claims arising from governmental actions that (1) “involv[e] an element of judgment or choice” and (2) are “based on considerations of public policy.” United States v. Gaubert, 499 U.S. 315, 322–23 (1991) (quotations omitted).
In an underdeveloped argument, the United States asserts that “prioritizing enforcement of [f]ederal law” and “subsequent prosecutorial decisions” are “classic discretionary functions shielded by the FTCA’s discretionary function exception and prosecutorial

C.M. v. United States, Slip Copy (2020) 2020 WL 1698191

immunity.” (Mot. at 12.) This argument, however, rests on the false premise that by taking custody of children whose parents are “amenable to prosecution,” the United States is simply enforcing federal law. As previously explained, the United States was not enforcing federal law when it separated Plaintiffs. See supra Section II(B)(2). It therefore was not prioritizing the enforcement of federal law. Any argument that the government was simply exercising prosecutorial discretion ignores the crucial fact that the government never charged any Plaintiff with a crime. (See Compl. ¶ 34.)
Plaintiffs argue the discretionary function exception does not apply because the government lacks discretion to violate the Constitution, and their Complaint alleges a deprivation of due process. (Resp. at 15; Compl. ¶ 68.) “[T]he Constitution can limit the discretion of federal officials such that the FTCA’s discretionary function exception will not apply.” Nurse v. United States, 226 F.3d 996, 1002 n.3 (9th Cir. 2000). In a related suit brought by a class of migrant parents that included Plaintiffs, a district court found that the government’s practice of separating families, and the procedures used to implement this practice, likely violated the parents’ due process rights. Ms. L. v. U.S. Immigration and Customs Enf’t, 310 F. Supp. 3d 1133, 1144–46 (S.D. Cal. 2018), modified by 330 F.R.D. 284 (S.D. Cal. 2019); Compl. ¶ 62 (citing Ms. L.). The court stated:
A practice of this sort implemented in this way is likely to be ‘so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience,’ interferes with rights “ ‘implicit in the concept of ordered liberty[,]’ ” and is so “ ‘brutal” and “offensive” that it [does] not comport with traditional ideas of fair play and decency.’

court order declaring this conduct so “egregious,” “outrageous,” “brutal,” and “offensive” that it warranted immediate enjoinment. (See Compl. ¶¶ 62, 68.) Plaintiffs have plausibly alleged that the government’s separation of their families violated their constitutional rights, which is not shielded by the discretionary function exception.
To the extent the United States asks the Court to parse the Complaint to assess whether claims with respect to individual factual allegations are barred,5 the Court declines to do so. Such an approach is inconsistent with the Complaint, which incorporates all facts into each count. (See Compl. ¶¶ 387–93.) Moreover, discussion of the extent to which certain facts could or could not prove a claim is outside the scope of this Order; such a resolution would be premature. The United States has failed to prove that the discretionary function exception applies.
III. CONCLUSION *5 Plaintiffs have demonstrated that “a private individual under like circumstances would be liable under state law” for the allegedly tortious conduct committed by the United States. The United States has failed to demonstrate that an exception to the FTCA’s general waiver of immunity applies. The Court therefore has subject-matter jurisdiction over this action.
IT IS ORDERED denying the United States’ Motion and Memorandum in Support of the United States of America’s Motion to Dismiss (Doc. 18).

Id. at 1145–46 (citations omitted). The United States

All Citations

responds that “Plaintiffs cannot ... circumvent the discretionary function exception simply by labeling

Slip Copy, 2020 WL 1698191

governmental conduct as unconstitutional.” (Reply at 11.)

Plaintiffs, however, did more than “simply label[ ]” the

government’s conduct as unconstitutional—they cited a

Footnotes

1

773 F.2d 1050 (9th Cir. 1985).

2

The statute read:

Whenever any legally organized water-user’s association or irrigation district shall so request, the Secretary of the

Interior is authorized, in his discretion, to transfer to such water-users’ association or irrigation district the care,

C.M. v. United States, Slip Copy (2020) 2020 WL 1698191

operation, and maintenance of all or any part of the project works, subject to such rules and regulations as he may prescribe. 43 U.S.C. § 499.

3

409 F.3d 646 (4th Cir. 2005).

4

The United States suggests that its family-separation policy was authorized by 8 U.S.C. § 1232(b)(3), which requires

the government to transfer alien children into the custody of the U.S. Department of Health and Human Services

(“HHS”) after determining that an alien child is “unaccompanied.” (Doc. 25, Def.’s Reply to Resp. (“Reply”) at 3.) The

United States postulates that parents who are “amenable to prosecution” under immigration statutes are

“unavailable to provide care or custody” to their children, which in turn renders their children “unaccompanied” and

subject to § 1232(b)(3)’s custodial-transfer requirement. (Mot. at 2, 13, 17; Reply at 3.) The United States fails to

explain how a parent who is merely “amenable” to prosecution—but has not been charged with a crime—is, for that

reason, unavailable to care for her child.

5

See, e.g., Mot. at 18 (“[C]laims relating to the conditions of one’s detention in a secure facility are ... shielded by the

discretionary function exception.”); id. (“[A]ny challenge to the frequency of communications between and about

separated family members is barred by the discretionary function exception.”); id. at 19 (“[A]n agency’s decisions

regarding the design and maintenance of its computer systems and databases is a policy-based discretionary

function....”).

 
 C.M. v. United States, Slip Copy (2020) 2020 WL 5232560
2020 WL 5232560 Only the Westlaw citation is currently available.
United States District Court, D. Arizona.
C.M., et al., Plaintiffs, v.
UNITED STATES of America, Defendant.
No. CV-19-05217-PHX-SRB |
Signed 07/06/2020
Attorneys and Law Firms
Claudia Valenzuela, Katherine Melloy Goettel, American Immigration Council, Daniel F. Jacobson, Pro Hac Vice, Emily Anne Reeder, Pro Hac Vice, Robert Stanton Jones, Pro Hac Vice, Arnold & Porter LLP, Washington, DC, David B. Rosenbaum, Emma Jane Cone-Roddy, Travis Charles Hunt, Osborn Maledon PA, Phoenix, AZ, Diana E. Reiter, Pro Hac Vice, Harry K. Fidler, Pro Hac Vice, Kaitlyn Schaeffer, Pro Hac Vice, Tanya Eleni Kalivas, Erik Christopher Walsh, Lucy Sarah McMillan, Pro Hac Vice, Arnold & Porter Kaye Scholer LLP, New York, NY, Emma Curtis Winger, American Immigration Council, Mary Kenney, Trina Realmuto, National Immigration Litigation Alliance, Brookline, MA, Jonathan Howard Feinberg, Kairys Rudovsky Messing Feinberg & Lin LLP, Philadelphia, PA, Mark Michael Fleming, Pro Hac Vice, National Immigrant Justice Center, Chicago, IL, for Plaintiffs.
Philip Davis MacWilliams, Theodore William Atkinson, US Dept. of Justice, Washington, DC, for Defendant.
ORDER
Susan R. Bolton, United States District Judge
*1 On March 30, 2020, the Court issued an Order denying Defendant United States’ 12(b)(1) Motion to Dismiss. (Doc. 31, (“3/30/20 Order”).) Pending before the Court is Defendant United States’ Motion for Certification of the

3/30/20 Order Pursuant to 28 U.S.C. § 1292(b) (“Motion”). (Doc. 40, (“Mot.”).)
I. BACKGROUND The background of this case was summarized in the Court’s 3/30/20 Order and is incorporated herein:
Plaintiffs C.M., B.M., L.G., B.G, M.R., J.R., O.A., L.A., V.C., and G.A. (collectively, “Plaintiffs”) are five mothers and their respective children who were forcibly separated by federal officers while detained at various immigration holding centers in Arizona. (Doc. 1, Compl. ¶¶ 5, 11–15.) Each family remained separated for more than two months. (Id. ¶ 5.) During that time, the federal government provided only limited information to each mother about her child’s whereabouts and well-being and afforded only minimal opportunities for each mother and child to communicate. (Id. ¶ 5.) Four of the children were transferred to shelters in New York. (Id. ¶¶ 99, 193, 281, 324.) As a result of the separation, Plaintiffs allege that they suffered, and continue to suffer, substantial trauma. (Id. ¶ 5.)
Plaintiffs filed suit on September 19, 2019, alleging two 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”); and (2) negligence. (Id. ¶¶ 387–93.) Plaintiffs seek compensatory damages. (Id. ¶ 394(A).)
On December 23, 2019, the United States filed its Motion requesting dismissal for lack of jurisdiction. (Doc. 18, (“MTD”).) Plaintiffs filed their Opposition to Defendant’s Motion to Dismiss (“Response”) on February 6, 2020. (Doc. 19, Opp’n to Def.’s Mot. (“Resp.”).)
(3/30/20 Order at 1–2.) The Court denied the United States’ Motion to Dismiss after concluding the Federal Torts Claims Act (“FTCA”) conferred jurisdiction and the United States failed to demonstrate that an exception applied. (Id. at 8.) Specifically, the Court held that Plaintiffs demonstrated a private analogue to the United States’ allegedly tortious conduct sufficient to establish subject-matter jurisdiction under the FTCA, and the United States failed to prove that the FTCA’s due care or discretionary function exceptions shielded this conduct

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from judicial review. (Id. at 4, 6, 8.)
On May 29, 2020, the United States filed its Motion, requesting that the Court certify its 3/30/20 Order for interlocutory appeal. (Mot. at 1.) The United States seeks certification of the following two questions1 :
(1) Whether the FTCA’s due care exception bars Plaintiffs’ claims; and
(2) Whether the FTCA’s discretionary function exception bars Plaintiffs’ claims.
(Id. at 5.) On June 12, 2020, Plaintiffs filed their Opposition. (Doc. 44, Pls.’ Opp’n to Mot. (“Opp’n”).) On June 19, 2020, the United States filed its Reply. (Doc. 48, Reply to Opp’n (“Reply”).)
II. LEGAL STANDARD & ANALYSIS *2 Generally, litigants may only appeal district court decisions that are final. See 28 U.S.C. § 1291. The so-called final judgment rule is “essential to the proper functioning of the federal courts” because “it promotes judicial efficiency, prevents multiplicity of litigation, and minimizes delay ‘by forbidding piecemeal disposition on appeal of what for practical purposes is a single controversy.’ ” Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738, 757 (9th Cir. 2008) (quoting Cobbledick v. United States, 309 U.S. 323, 325 (1940)). Section 1292(b) is a “narrow exception” to the final judgment rule that “provides a mechanism by which litigants can bring an immediate appeal of a non-final order upon the consent of both the district court and the court of appeals.” Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010); In re Cement Antitrust Litig., 673 F.2d 1020, 1025–26 (9th Cir. 1981) (en banc). This mechanism is available “only in extraordinary cases where decision of an interlocutory appeal might avoid protracted and expensive litigation”; it is not intended “merely to provide review of difficult rulings in hard cases.” U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966).
An extraordinary case justifying use of this mechanism is one in which: (1) an order “involves a controlling question of law”; (2) “as to which there is a substantial ground for difference of opinion”; and (3) “immediate appeal from the order may materially advance the ultimate termination of the litigation[.]” 28 U.S.C. §

1292(b). “[E]ven when all three statutory criteria are satisfied,” however, “district court judges have ‘unfettered discretion’ to deny certification.” Villarreal v. Caremark LLC, 85 F. Supp. 3d 1063, 1068 (D. Ariz. 2015) (quoting Brizzee v. Fred Meyer Stores, Inc., 2008 WL 426510, at *3 (D. Or. Feb. 13, 2008)). The burden of proving that an interlocutory appeal is justified lies on the party seeking certification. Id. at 1067.
A. Controlling Question of Law While “[t]he Ninth Circuit’s guidance as to what constitutes a controlling question of law is minimal,” it is well settled that “the issue need not be dispositive of the lawsuit in order to be regarded as controlling[.]” Id. at 1068 (quotation omitted). “But at the same time, the issue cannot be collateral to the basic issues of the case.” Id. (quotation omitted). “In this Circuit, ‘all that must be shown in order for a question to be ‘controlling’ is that resolution of the issue on appeal could materially affect the outcome of litigation in the district court.’ ” Id. (quoting Kight v. Eskanos & Adler, P.C., No. CIV. 05CV1999-L(AJB), 2007 WL 173825, at *2 (S.D. Cal. Jan. 8, 2007)); In re Cement, 673 F.2d at 1026.
In addition to being “controlling,” the issues must be “pure” questions of law. BDPJ Houston, LLC v. Cont’l Cas. Co., No. 2:10-CV-01018-TMB, 2012 WL 13018736, at *2 (D. Ariz. Dec. 27, 2012). “[W]hat the framers of § 1292(b) had in mind is more of an abstract legal issue ... matters the court of appeals ‘can decide quickly and cleanly without having to study the record.’ ” McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1258 (11th Cir. 2004) (quoting Ahrenholz v. Bd. of Trs. of the Univ. of Ill., 219 F.3d 674, 675–77 (7th Cir. 2000)). The issue cannot involve “a mixed question of law and fact or the application of established law to a particular set of facts.” BDPJ Houston, LLC, 2012 WL 13018736, at *2. Stated otherwise, “the crux of [the] issue” cannot be “fact-dependent” or “predicated at least in part on specific factual findings.” Keystone Tobacco Co., Inc. v. United States Tobacco Co., 217 F.R.D. 235, 239 (D.D.C. 2003); Sec. & Exch. Comm’n v. First Jersey Sec., Inc., 587 F. Supp. 535, 536 (S.D.N.Y. 1984).
The Court assumes without deciding that its Order presents controlling questions of law suitable for resolution on interlocutory appeal. The Court held that the United States failed to prove the applicability of an FTCA exception to jurisdiction. (3/30/20 Order at 8.) In the

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2020 WL 5232560
course of so holding, the Court concluded that the United States brought a facial attack, and accordingly “accept[ed] the allegations of the complaint as true” and “afford[ed] [P]laintiffs the benefit of all favorable inferences that can be drawn from the alleged facts.” (3/30/20 Order at 2 (quoting Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004)).) Were the Ninth Circuit to reconsider this issue on interlocutory appeal, it would similarly construe the facts in Plaintiffs’ favor before deciding whether an FTCA exception applies. See Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009). Arguably, then, these questions could be decided in the abstract without recourse to the record.
*3 But so, too, could it be argued that the questions the United States seeks certified ultimately turn on the particular facts of this case. For example, were the Ninth Circuit to determine, contrary to the Court’s order, that the due care exception is triggered by governmental activity that is authorized—as opposed to mandated—by statute or regulation, it might then consider whether the government in fact exercised due care in carrying out its statutorily authorized activities. See Welch, 409 F.3d at 652 (for due care exception to apply, officer must have in fact “exercised due care”). This might transform the issue into “a mixed question of law and fact” and render it inappropriate for interlocutory review. See BDPJ Houston, LLC, 2012 WL 13018736, at *2. However, the Court need not definitively resolve this issue: as explained below, the United States has failed to prove the second and third requirements for bringing an interlocutory appeal.
B. Substantial Ground for Difference of Opinion “To determine if a substantial ground for difference of opinion exists under § 1292(b), courts must examine to what extent the controlling law is unclear.” Couch, 611 F.3d at 633 (quotation marks and citation omitted). The mere fact that “settled law might be applied differently” does not suffice to demonstrate a substantial ground for difference of opinion. Id. The controlling law must be sufficiently unclear that “reasonable jurists might disagree on an issue’s resolution[.]” Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011). Three sets of circumstances have historically reflected such a disagreement: (1) “where the circuits are in dispute on the question and the court of appeals of the circuit has not spoken on the point”; (2) “if complicated questions arise under foreign law”; or (3) “if novel and difficult questions

of first impression are presented.” Couch, 611 F.3d at 633 (quotation marks and citation omitted). None of these circumstances are present here.
1. Circuit Dispute and Ninth Circuit Silence
The United States argues that “contradictory precedent already exists with respect to application of the due care and discretionary function exceptions.” (Mot. at 6.) To determine whether the due care exception applied, the Court’s Order invoked a two-part test from Welch v. United States.2 (3/30/20 Order at 5.) Welch applies the due care exception where: (1) a statute or regulation “specifically pr[e]scribes a course of action for an officer to follow,” and (2) “the officer exercised due care in following the dictates of that statute or regulation.” Welch, 409 F.3d at 652 (citing Crumpton v. Stone, 59 F.3d 1400, 1403 (D.C. Cir. 1995)). The Court concluded that because the United States failed to prove Welch’s first prong, the due care exception did not apply. (3/30/20 Order at 6.)
The United States takes issue with this first prong. It contends that the due care exception applies not just to government conduct that is mandated by statute or regulation, but also to government conduct that is merely authorized by the same. (Mot. at 6, 7.) The United States seeks to prove the existence of a circuit dispute by citing two cases—Hydrogen Technology Corp. v. United States3 and Porter v. United States4—which it contends are “arguably inconsistent” with Welch’s first prong. (Mot. at 7; see 3/30/20 Order at 5.)
Neither Hydrogen Technology nor Porter provide a substantial ground for different opinions. First, both cases pre-date Welch, so the respective courts had no chance to evaluate Welch’s first prong. Second, neither case is inconsistent with Welch’s first prong. The Hydrogen Technology plaintiff did not “contest[ ] that the FBI was acting pursuant to its statutory duties[,]” but rather “limited its claim to the FBI’s alleged lack of due care.” 831 F.2d at 1160 n.5. In other words, Hydrogen Technology bears only on Welch’s second prong, which the United States does not take issue with. (See generally Mot.) The Hydrogen Technology court had no opportunity to discuss whether the due care exception shields only acts mandated by statute or regulation, or extends to acts that are merely authorized by the same. See id. Porter similarly does not undermine the first prong of Welch: Porter “assumed that the [government agents] ... were

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properly carrying out their appointed functions” and made no inquiry into whether the government was required to prove that it acted pursuant to a statutory or regulatory mandate. 473 F.2d at 1336–37.
*4 Further, the United States’ argument that reasonable jurists might dispute Welch’s first prong is undermined by the fact that other district courts have relied on Welch to determine whether the due care exception applies. See Ferguson v. United States, No. 15CV1253 JM (DHB), 2016 WL 4793180, at *7 (S.D. Cal. Sept. 14, 2016) (applying Welch’s two-part test); Kwai Fun Wong v. Beebe, No. CIV. 01-718-ST, 2006 WL 977746, at *7–8 (D. Or. Apr. 10, 2006) (same). As in Couch, the United States “ha[s] not provided a single case that conflicts with the district court’s construction or application of [the statute at issue].” See 611 F.3d at 633. And the United States has not demonstrated any other “credible basis for a difference of opinion” regarding the accuracy of Welch’s first prong. See Reese, 643 F.3d at 688. The United States has thus failed to prove that circuits dispute the appropriate test to determine whether the FTCA’s due care exception applies.
The United States similarly fails to demonstrate that circuits dispute the test governing the discretionary function exception. In its Order, the Court cited a United States Supreme Court case for the applicable standard:
The discretionary function exception bars claims arising from governmental actions that (1) “involv[e] an element of judgment or choice” and (2) are “based on considerations of public policy.”
(3/30/20 Order at 6) (citing United States v. Gaubert, 499 U.S. 315, 322–23 (1991).) The United States does not take issue with this standard. Rather, it vaguely argues that Ninth Circuit precedent “does not foreclose” application of the discretionary function exception to the facts this case. (Mot. at 11; see id. at 13 (arguing application of the exception is “left open”).) Such an argument—aside from turning this issue into a fact-dependent inquiry not appropriate for interlocutory review—falls far short of demonstrating a circuit dispute. See Couch, 611 F.3d at 633–34 (emphasizing the high threshold showing required to justify interlocutory review). Similarly, the United States’ argument that Borquez v. United States5 controls, rather than Welch, is insufficient to make such a demonstration. See Couch, 611 F.3d at 633 (“[J]ust because counsel contends that one precedent rather than another is controlling, does not mean there is such a substantial difference of opinion as will support an interlocutory appeal.”). The United States

has not established that this case fits into the first of three sets of circumstances historically recognized as demonstrating a substantial ground for difference of opinion.
2. Complicated Questions under Foreign Law
This case involves no foreign law. It therefore does not fall into the second of three sets of circumstances historically recognized as demonstrating a substantial ground for difference of opinion.
3. Novel or Difficult Questions of First Impression
The United States suggests that because “the Ninth Circuit has not addressed what is required to trigger the due care exception,” this case presents a novel or difficult question of first impression. (Mot. at 6.) But the “mere presence” of a disputed issue that is a question of first impression, “standing alone,” is insufficient to demonstrate a substantial ground for difference of opinion. Couch, 611 F.3d at 634 (quotation omitted). Demonstrating a “dearth of cases” is likewise insufficient. See Union Cty., Iowa v. Piper Jaffray & Co., 525 F.3d 643, 647 (8th Cir. 2008); Couch, 611 F.3d at 634 (citing Union County favorably); accord U.S. ex rel. Hollander v. Clay, 420 F. Supp. 853, 859 (D.D.C. 1976). Besides, as discussed above, several other district courts in this circuit apply Welch. See Ferguson, 2016 WL 4793180, at *7; Kwai Fun Wong, 2006 WL 977746, at *7–8. The United States has failed to prove that this case falls into the third type of cases historically recognized as demonstrating a substantial ground for difference of opinion.
*5 The United States has not otherwise proved that reasonable jurists could hold differing opinions about the accuracy of Welch’s first prong. The United States posits that “the text of the due care exception itself suggests that the Welch standard is too demanding” and speculates that “the Ninth Circuit could conclude that the relevant inquiry is whether [the] federal statute authorized the referral of Plaintiffs for criminal prosecution and authorized the transfer of their children into HHS custody” (Mot. at 8.) Were such arguments sufficient, interlocutory review would cease to be limited to “exceptional cases” and would risk swallowing up the final judgment rule entirely. Such a result is untenable. See McFarlin, 381 F.3d at

C.M. v. United States, Slip Copy (2020) 2020 WL 5232560

1259 (“The proper division of labor between the district

possible.” (Reply at 9.) This added policy consideration is

courts and the court of appeals and the efficiency of

irrelevant. See Couch, 611 F.3d at 635 (“A district court

judicial resolution of cases are protected by the final

confronting a motion to certify pursuant to § 1292(b)

judgment rule, and are threatened by too expansive use of

should remain focused on the statutory requirements, not

the § 1292(b) exception to it.”); Romoland Sch. Dist., 548

policy considerations which may or may not be furthered

F.3d at 757 (summarizing that final judgment rule is

by certification.”).

“essential to the proper functioning of the federal courts”

because “it promotes judicial efficiency, prevents

The United States has failed to demonstrate that this case

multiplicity of litigation, and minimizes delay”).

presents issues historically found appropriate for

interlocutory review, and has failed to otherwise

demonstrate that this case presents circumstances

exceptional enough to override traditional finality

concerns. The Court therefore denies the United States’

C. Material Advancement of the Ultimate

request for certification under 28 U.S.C. § 1292(b).

Termination of the Litigation

Even had the United States carried its burden of proving a

substantial ground for difference of opinion, it has failed

to show that interlocutory appeal would materially

advance the ultimate termination of litigation. This

III. CONCLUSION

requirement “means that resolution of a controlling legal

The United States has failed to prove either the existence

question would serve to avoid a trial or otherwise

of a substantial ground for disagreement or that

substantially shorten the litigation.” McFarlin, 381 F.3d at

interlocutory appeal would materially advance the

1259.

termination of litigation in this case. For these two

independent reasons, the Court denies the United States’

The United States’ primary argument is that “a ruling in

Motion for Certification under 28 U.S.C. § 1292(b).

the United States’ favor on interlocutory appeal would

significantly advance the termination of other claims” at

IT IS ORDERED denying Defendant United States’

issue in the related case of A.P.F. v. United States, No.

Motion for Certification of the Court’s 3/30/20 Order

1:10-cv-00065. (Mot. at 14.) The United States’ Motion,

Pursuant to 28 U.S.C. § 1292(b) (Doc. 40).

however, fails to explain or even address why an

interlocutory appeal would materially advance the ultimate termination of the litigation in this case. (See

All Citations

generally Mot.) In its Reply, the United States adds only that “the equities weigh heavily in favor of the United

Slip Copy, 2020 WL 5232560

States’ interest in having the controlling issues, which

bear on its sovereign immunity, resolved as soon as

Footnotes

1

The Court replicates the United States’ questions but notes that were certification granted, the entire Order, not

just these questions, would be subject to appellate review. See Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir.

2004) (stating that although district court certified only specific questions, court of appeals has discretion to

“address any issue fairly included within the certified order because it is the order that is appealable, and not the

controlling question identified by the district court”).

2

409 F.3d 646 (4th Cir. 2005).

3

831 F.2d 1155, 1163 (1st Cir. 1987).

4

473 F.2d 1329, 1332 (5th Cir. 1973).

C.M. v. United States, Slip Copy (2020) 2020 WL 5232560

5

773 F.2d 1050 (9th Cir. 1987).