United States District Court District of Massachusetts (Worcester) CIVIL DOCKET FOR CASE #: 4:18-cv-40149-TSH

K.O. et al v. Sessions, III et al Assigned to: District Judge Timothy S. Hillman Cause: 42:1981 Civil Rights

Date Filed: 09/05/2018 Date Terminated: 02/03/2020 Jury Demand: Plaintiff Nature of Suit: 555 Prison Condition Jurisdiction: Federal Question

Plaintiff
K.O. by and through their parents and next friends, E.O. and L.J.

represented by Howard M. Cooper Todd & Weld One Federal Street 27th Floor Boston, MA 02110 617-720-2626 Fax: 617-227-5777 Email: hcooper@toddweld.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David A. Vicinanzo Nixon Peabody LLP 100 Summer Street Boston, MA 02110 617-345-1000 Email: dvicinanzo@nixonpeabody.com PRO HAC VICE ATTORNEY TO BE NOTICED

Ivan Espinoza-Madrigal Lawyers Committee for Civil Rights and Economic Justice 61 Batterymarch St, 5th Floor Boston, MA 02210 (617) 482-1145 PRO HAC VICE ATTORNEY TO BE NOTICED

Jesse M. Bless American Immigration Lawyers Association

1331 G St NW, Ste 3000 Washington, DC 20005 7817043897 Email: jbless@aila.org ATTORNEY TO BE NOTICED
Joseph M. Cacace Todd & Weld One Federal Street 27th Floor Boston, MA 02110 617-720-2626 Fax: 617-624-4830 Email: jcacace@toddweld.com ATTORNEY TO BE NOTICED
Lauren Maynard Nixon Peabody LLP 100 Summer Street Boston, MA 02110 617-345-1238 Email: lmaynard@nixonpeabody.com ATTORNEY TO BE NOTICED
Nathan P. Warecki Nixon Peabody LLP 900 Elm Street, 14th Floor Manchester, NH 03101 603-628-4077 Email: nwarecki@nixonpeabody.com ATTORNEY TO BE NOTICED
Oren N. Nimni 61 Batterymarch Street 5th Floor Boston, MA 02110 206-200-9088 Email: onimni@lawyerscom.org ATTORNEY TO BE NOTICED
Susan B. Church Demissie & Church 929 Massachusetts Avenue Suite 01 Cambridge, MA 02139

Plaintiff
E.O., Jr. by and through their parents and next friends, E.O. and L.J.

617-354-3944 Email: sbc@demissiechurch.com ATTORNEY TO BE NOTICED
represented by Howard M. Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Vicinanzo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ivan Espinoza-Madrigal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jesse M. Bless (See above for address) ATTORNEY TO BE NOTICED
Joseph M. Cacace (See above for address) ATTORNEY TO BE NOTICED
Lauren Maynard (See above for address) ATTORNEY TO BE NOTICED
Nathan P. Warecki (See above for address) ATTORNEY TO BE NOTICED
Oren N. Nimni (See above for address) ATTORNEY TO BE NOTICED
Susan B. Church (See above for address) ATTORNEY TO BE NOTICED

Plaintiff E.O.
Plaintiff L.J.

represented by Howard M. Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Vicinanzo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ivan Espinoza-Madrigal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jesse M. Bless (See above for address) ATTORNEY TO BE NOTICED
Joseph M. Cacace (See above for address) ATTORNEY TO BE NOTICED
Lauren Maynard (See above for address) ATTORNEY TO BE NOTICED
Nathan P. Warecki (See above for address) ATTORNEY TO BE NOTICED
Oren N. Nimni (See above for address) ATTORNEY TO BE NOTICED
Susan B. Church (See above for address) ATTORNEY TO BE NOTICED
represented by Howard M. Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
C.J. by and through his father and next friend F.C.

David A. Vicinanzo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ivan Espinoza-Madrigal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jesse M. Bless (See above for address) ATTORNEY TO BE NOTICED
Joseph M. Cacace (See above for address) ATTORNEY TO BE NOTICED
Lauren Maynard (See above for address) ATTORNEY TO BE NOTICED
Nathan P. Warecki (See above for address) ATTORNEY TO BE NOTICED
Oren N. Nimni (See above for address) ATTORNEY TO BE NOTICED
Susan B. Church (See above for address) ATTORNEY TO BE NOTICED
represented by Howard M. Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Vicinanzo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff F.C.

Ivan Espinoza-Madrigal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jesse M. Bless (See above for address) ATTORNEY TO BE NOTICED
Joseph M. Cacace (See above for address) ATTORNEY TO BE NOTICED
Lauren Maynard (See above for address) ATTORNEY TO BE NOTICED
Nathan P. Warecki (See above for address) ATTORNEY TO BE NOTICED
Oren N. Nimni (See above for address) ATTORNEY TO BE NOTICED
Susan B. Church (See above for address) ATTORNEY TO BE NOTICED
represented by Howard M. Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Vicinanzo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ivan Espinoza-Madrigal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jesse M. Bless

(See above for address) ATTORNEY TO BE NOTICED
Joseph M. Cacace (See above for address) ATTORNEY TO BE NOTICED
Lauren Maynard (See above for address) ATTORNEY TO BE NOTICED
Nathan P. Warecki (See above for address) ATTORNEY TO BE NOTICED
Oren N. Nimni (See above for address) ATTORNEY TO BE NOTICED
Susan B. Church (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Jefferson Beauregard Sessions, III

represented by Paul C. Quast U.S. Department of Justice, Civil Division Benjamin Franklin Station P.O. Box 7146 Washington, DC 20044-7146 (202) 616-4150 Email: paul.c.quast@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary H. Mason United States Dept. of Justice, Civil Division Benjamin Franklin Station P.O. Box 7146 Washington, DC 20044-7146 (202) 616-4123 Email: mary.mason@usdoj.gov

Defendant Kirstjen Nielsen
Defendant John F Kelly
Defendant Stephen Miller

ATTORNEY TO BE NOTICED
Thomas G. Ward U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530-0001 (202) 514-7835 Email: thomas.g.ward@usdoj.gov ATTORNEY TO BE NOTICED
represented by Paul C. Quast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary H. Mason (See above for address) ATTORNEY TO BE NOTICED
Thomas G. Ward (See above for address) ATTORNEY TO BE NOTICED
represented by Paul C. Quast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary H. Mason (See above for address) ATTORNEY TO BE NOTICED
Thomas G. Ward (See above for address) ATTORNEY TO BE NOTICED
represented by Paul C. Quast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary H. Mason

Defendant Gene Hamilton
Defendant Thomas Homan
Defendant Ronald D Vitiello

(See above for address) ATTORNEY TO BE NOTICED
Thomas G. Ward (See above for address) ATTORNEY TO BE NOTICED
represented by Paul C. Quast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary H. Mason (See above for address) ATTORNEY TO BE NOTICED
Thomas G. Ward (See above for address) ATTORNEY TO BE NOTICED
represented by Paul C. Quast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary H. Mason (See above for address) ATTORNEY TO BE NOTICED
Thomas G. Ward (See above for address) ATTORNEY TO BE NOTICED
represented by Paul C. Quast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary H. Mason (See above for address) ATTORNEY TO BE NOTICED

Defendant L. Francis Cissna
Defendant Kevin K. McAleenan
Defendant Alex Azar

Thomas G. Ward (See above for address) ATTORNEY TO BE NOTICED
represented by Paul C. Quast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary H. Mason (See above for address) ATTORNEY TO BE NOTICED
Thomas G. Ward (See above for address) ATTORNEY TO BE NOTICED
represented by Paul C. Quast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary H. Mason (See above for address) ATTORNEY TO BE NOTICED
Thomas G. Ward (See above for address) ATTORNEY TO BE NOTICED
represented by Paul C. Quast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary H. Mason (See above for address) ATTORNEY TO BE NOTICED
Thomas G. Ward (See above for address) ATTORNEY TO BE NOTICED

Defendant Scott Lloyd
Defendant John Doe ICE Agents Defendant John Doe CBP Agents Defendant John Doe ORR Personnel Amicus Immigration Reform Law Institute

represented by Paul C. Quast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary H. Mason (See above for address) ATTORNEY TO BE NOTICED
Thomas G. Ward (See above for address) ATTORNEY TO BE NOTICED
represented by Bradly P. Bennion Law Office of Brad P. Bennion PO Box 890118 E. Weymouth, MA 02189 617-943-6164 Email: bradpbennion@gmail.com ATTORNEY TO BE NOTICED
Christopher J. Hajec Immigration Reform Law Institute 25 Massachusetts Avenue NW, Suite 335 Washington, DC 20001 202-232-5590 Email: chajec@irli.org PRO HAC VICE ATTORNEY TO BE NOTICED
John M. Miano Immigration Reform Law Institute

Objector UNITED STATES OF AMERICA

25 Massachusetts Avenue NW, Suite 335 Washington, DC 20001 202-232-5590 Email: miano@colosseumbuilders.com PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 09/05/2018
09/05/2018 09/05/2018 09/05/2018 09/05/2018 09/06/2018

# Docket Text

COMPLAINT and Jury Demand (Class Action) against All

1

Plaintiffs Filing fee: $ 400, receipt number 0101-7305438 (Fee

Status: Filing Fee paid), filed by E.O., Jr., K.O., F.C., E.O., L.J.,

C.J.. (Attachments: # 1 Exhibit Ex 1 to Complaint, # 2 Exhibit

Ex 2 to Complaint, # 3 Exhibit Ex 3 to Complaint, # 4 Exhibit Ex 4 to Complaint, # 5 Exhibit Ex 5 to Complaint, # 6 Exhibit Ex 6 to Complaint, # 7 Exhibit Ex 7 to Complaint, # 8 Civil Cover Sheet Civil Cover Sheet, # 9 Exhibit Attachment A to Civil Cover Sheet, # 10 Exhibit Attachment B to Civil Cover Sheet, # 11 JS45 Category Sheet)(Cacace, Joseph) (Attachment 11 replaced on 9/6/2018) (Jones, Sherry). (Entered: 09/05/2018)

2 NOTICE of Appearance by Joseph M. Cacace on behalf of C.J., E.O., E.O., Jr., F.C., K.O., L.J. (Cacace, Joseph) (Entered: 09/05/2018)

3 NOTICE of Appearance by Howard M. Cooper on behalf of C.J., E.O., E.O., Jr., F.C., K.O., L.J. (Cooper, Howard) (Entered: 09/05/2018)

4 NOTICE of Appearance by Jesse M. Bless on behalf of C.J., E.O., E.O., Jr., F.C., K.O., L.J. (Bless, Jesse) (Entered: 09/05/2018)

5 NOTICE of Appearance by Susan B. Church on behalf of K.O. (Church, Susan) (Entered: 09/05/2018)

6 ELECTRONIC NOTICE of Case Assignment. District Judge Timothy S. Hillman assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge,

the matter will be transmitted to Magistrate Judge David H. Hennessy. (Jones, Sherry) (Entered: 09/06/2018)

09/06/2018

7 Summons Issued as to Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John Doe CBP Agents, John Doe ICE Agents, John Doe ORR Personnel, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Jones, Sherry) (Entered: 09/06/2018)

09/06/2018

8 NOTICE of Appearance by Nathan P. Warecki on behalf of C.J., E.O., E.O., Jr., F.C., K.O., L.J. (Warecki, Nathan) (Entered: 09/06/2018)

09/06/2018

9 NOTICE of Appearance by Lauren Maynard on behalf of C.J., E.O., E.O., Jr., F.C., K.O., L.J. (Maynard, Lauren) (Entered: 09/06/2018)

09/07/2018

10 MOTION Motion to Proceed Under Pseudonyms and For Protective Order by K.O..(Church, Susan). Added MOTION for Protective Order on 9/10/2018 (Jones, Sherry). (Entered: 09/07/2018)

09/07/2018 11

MOTION Motion to Proceed Under Pseudonyms and For Protective Order by E.O., Jr..(Church, Susan). Added MOTION for Protective Order on 9/10/2018 (Jones, Sherry). (Entered: 09/07/2018)

09/07/2018

12 MEMORANDUM in Support re 11 MOTION Motion to Proceed Under Pseudonyms and For Protective Order filed by E.O., Jr.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Church, Susan) (Entered: 09/07/2018)

09/07/2018

13 MEMORANDUM in Support re 10 MOTION Motion to Proceed Under Pseudonyms and For Protective Order filed by K.O.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Church, Susan) (Entered: 09/07/2018)

09/12/2018

14 SUMMONS Returned Executed Gene Hamilton served on 9/10/2018, answer due 10/1/2018. (Cacace, Joseph) (Entered: 09/12/2018)

09/12/2018 09/12/2018 09/12/2018 09/12/2018 09/13/2018 09/24/2018
09/24/2018
09/24/2018 09/24/2018
09/24/2018

15 SUMMONS Returned Executed Thomas Homan served on 9/10/2018, answer due 10/1/2018. (Cacace, Joseph) (Main Document 15 replaced on 10/11/2018) (Jones, Sherry). (Entered: 09/12/2018)
16 SUMMONS Returned Executed Ronald D Vitiello served on 9/10/2018, answer due 10/1/2018. (Cacace, Joseph) (Entered: 09/12/2018)
17 SUMMONS Returned Executed Kevin K. McAleenan served on 9/10/2018, answer due 10/1/2018. (Cacace, Joseph) (Main Document 17 replaced on 10/11/2018) (Jones, Sherry). (Entered: 09/12/2018)
18 SUMMONS Returned Executed Scott Lloyd served on 9/10/2018, answer due 10/1/2018. (Cacace, Joseph) (Entered: 09/12/2018)
19 NOTICE of Appearance by Oren N. Nimni on behalf of C.J., E.O., E.O., Jr., F.C., K.O., L.J. (Nimni, Oren) (Entered: 09/13/2018)
20 AFFIDAVIT OF SERVICE Executed by E.O., Jr., K.O., F.C., E.O., L.J., C.J.. Stephen Miller served on 9/17/2018, answer due 10/9/2018. Acknowledgement filed by E.O., Jr.; K.O.; F.C.; E.O. ; L.J. ; C.J.. (Attachments: # 1 Exhibit Ex 1 to Aff of Service on S Miller)(Cacace, Joseph) (Entered: 09/24/2018)
21 AFFIDAVIT OF SERVICE Executed by E.O., Jr., K.O., F.C., E.O., L.J., C.J.. Jefferson Beauregard Sessions, III served on 9/17/2018, answer due 10/9/2018. Acknowledgement filed by E.O., Jr.; K.O.; F.C.; E.O. ; L.J. ; C.J.. (Attachments: # 1 Exhibit Ex 1 to Aff of Service on J B Sessions)(Cacace, Joseph) (Entered: 09/24/2018)
22 Notice of Service of Process filed by C.J., E.O., E.O., Jr., F.C., K.O., L.J.. Individual(s)/Entities served: Andrew E. Lelling, US Atty for District of Massachusetts. (Attachments: # 1 Exhibit 1 to Aff of Service on Lelling)(Cacace, Joseph) (Entered: 09/24/2018)
23 Notice of Service of Process filed by C.J., E.O., E.O., Jr., F.C., K.O., L.J.. Individual(s)/Entities served: U.S. Office of Refugee Resettlement. (Attachments: # 1 Exhibit 1 to Aff of Service on US Office of Refugee Resettlement)(Cacace, Joseph) (Entered: 09/24/2018)
24 Notice of Service of Process filed by C.J., E.O., E.O., Jr., F.C., K.O., L.J.. Individual(s)/Entities served: Jefferson Beauregard Sessions III in his capacity as Attorney General of U.S..

09/24/2018 09/24/2018
09/24/2018 09/27/2018 10/03/2018
10/15/2018 10/15/2018 11/01/2018

(Attachments: # 1 Exhibit 1 to Aff of Service on Sessions as Ag of US)(Cacace, Joseph) (Entered: 09/24/2018)
25 Notice of Service of Process filed by C.J., E.O., E.O., Jr., F.C., K.O., L.J.. Individual(s)/Entities served: United States Department of Justice. (Attachments: # 1 Exhibit 1 to Aff of Serv on US DOJ)(Cacace, Joseph) (Entered: 09/24/2018)
26 AFFIDAVIT OF SERVICE Executed by E.O., Jr., K.O., F.C., E.O., L.J., C.J.. Alex Azar served on 9/24/2018, answer due 10/15/2018. Acknowledgement filed by E.O., Jr.; K.O.; F.C.; E.O. ; L.J. ; C.J.. (Cacace, Joseph) (Main Document 26 replaced on 10/11/2018) (Jones, Sherry). Modified on 10/11/2018 (Jones, Sherry). (Entered: 09/24/2018)
27 AFFIDAVIT OF SERVICE Executed by E.O., Jr., K.O., F.C., E.O., L.J., C.J.. John F Kelly served on 9/14/2018, answer due 10/5/2018. Acknowledgement filed by E.O., Jr.; K.O.; F.C.; E.O. ; L.J. ; C.J.. (Attachments: # 1 Exhibit 1 to Aff of Serv John F Kelly)(Cacace, Joseph) (Entered: 09/24/2018)
28 Notice of Service of Process filed by C.J., E.O., E.O., Jr., F.C., K.O., L.J.. Individual(s)/Entities served: US Department of Health and Human Services. (Attachments: # 1 Exhibit 1 to Aff of Service on HHS)(Cacace, Joseph) (Entered: 09/27/2018)
29 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 10 Motion to proceed under pseudonyms;
granting 11 Motion to proceed under pseudonyms ; granting 10 Motion for Protective Order; and granting 11
Motion for Protective Order. (Castles, Martin) (Entered: 10/03/2018)
30 SUMMONS Returned Executed L. Francis Cissna served on 10/4/2018, answer due 10/25/2018. (Cacace, Joseph) (Entered: 10/15/2018)
31 SUMMONS Returned Executed Kirstjen Nielsen served on 10/9/2018, answer due 10/30/2018. (Cacace, Joseph) (Entered: 10/15/2018)
32 MOTION for Hearing (Request for an Initial Scheduling Conference) by C.J., E.O., E.O., Jr., F.C., K.O., L.J..(Cooper, Howard) (Entered: 11/01/2018)

11/06/2018

33 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered denying 32 Motion for scheduling conference. A scheduling conference will be scheduled after the defendants have filed their answers. (Castles, Martin) (Entered: 11/06/2018)

11/09/2018

34 NOTICE of Appearance by Paul C. Quast on behalf of Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello (Quast, Paul) (Entered: 11/09/2018)

11/09/2018 35

Joint MOTION for Extension of Time to Set Briefing Schedule and Consolidate and Extend Deadlines by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello.(Quast, Paul) (Entered: 11/09/2018)

11/13/2018

36 District Judge Timothy S. Hillman: ORDER entered granting 35

Motion for Extension of Time and setting briefing schedule. Motions to dismiss due by 1/8/19, Oppositions due by 2/22/19, Reply due by 3/29/19. (Castles, Martin) (Entered: 11/13/2018)

12/21/2018

37 Assented to MOTION for Leave to File Excess Pages by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello.(Quast, Paul) (Entered: 12/21/2018)

01/08/2019

38 MOTION to Dismiss for Lack of Jurisdiction , MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ( Responses due by 1/22/2019) by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello.(Quast, Paul) (Entered: 01/08/2019)

01/08/2019 39

MEMORANDUM in Support re 38 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello. (Quast, Paul) (Entered: 01/08/2019)

01/08/2019

40 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 37 Motion for Leave to File Excess Pages. (Castles, Martin) (Entered: 01/08/2019)

01/16/2019

41 MOTION for Leave to Appear Pro Hac Vice for admission of David A. Vicinanzo Filing fee: $ 100, receipt number 01017496808 by C.J., E.O., E.O., Jr., F.C., K.O., L.J.. (Attachments: # 1 Exhibit A - Declaration of David A. Vicinanzo in Support of Motion for Admission Pro Hac Vice)(Warecki, Nathan) (Entered: 01/16/2019)

01/17/2019

42 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 41 Motion for Leave to Appear Pro Hac Vice Added David A. Vicinanzo. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Burgos, Sandra) (Entered: 01/17/2019)

01/17/2019

43 First MOTION for Leave to Appear Pro Hac Vice for admission of Ivan Espinoza-Madrigal Filing fee: $ 100, receipt number 01017498399 by C.J., E.O., E.O., Jr., F.C., K.O., L.J..(Nimni, Oren) (Entered: 01/17/2019)

01/18/2019

44 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 43 Motion for Leave to Appear Pro Hac Vice Added Ivan Espinoza-Madrigal. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Burgos, Sandra) (Entered: 01/18/2019)

01/29/2019 45

AMENDED COMPLAINT against All Defendants, filed by C.J., E.O., E.O., Jr., F.C., K.O., L.J.. (Attachments: # 1 Exhibit Ex. 1 to Amended Complaint, # 2 Exhibit Ex. 2 to Amended Complaint, # 3 Exhibit Ex. 3 to Amended Complaint, # 4 Exhibit Ex. 4 to Amended Complaint, # 5 Exhibit Ex. 5 to Amended Complaint, # 6 Exhibit Ex. 6 to Amended Complaint, # 7 Exhibit Ex. 7 to Amended Complaint)(Maynard, Lauren) (Entered: 01/29/2019)

02/07/2019

46 Joint MOTION for Extension of Time to Set Briefing Schedule and Extend Deadlines by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan,

Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello.(Quast, Paul) Modified on 2/8/2019 (Castles, Martin). (Entered: 02/07/2019)

02/07/2019

47 Joint MOTION for Leave to File Excess Pages by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello.(Quast, Paul) (Entered: 02/07/2019)

02/08/2019

48 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 46 Motion for Extension of Time to File. Extending until March 8, 2019, the time for Defendants to file their anticipated motion to dismiss the First Amended Complaint; (2) extending until April 8, 2019, the time for Plaintiffs to file their opposition to the motion; and (3) permiting the Defendants to file a reply on May 8, 2019. (Castles, Martin) (Entered: 02/08/2019)

02/08/2019

49 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 47 Motion for Leave to File Excess Pages. (Castles, Martin) (Entered: 02/08/2019)

02/08/2019

50 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered finding as moot 38 Motion to Dismiss for Lack of Jurisdiction and finding as moot 38 Motion to Dismiss for Failure to State a Claim. Plaintiff's have filed an amended complaint. (Castles, Martin) (Entered: 02/08/2019)

03/08/2019 51

Second MOTION to Dismiss for Lack of Jurisdiction , Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ( Responses due by 3/22/2019) by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello.(Quast, Paul) (Entered: 03/08/2019)

03/08/2019 52

MEMORANDUM in Support re 51 Second MOTION to Dismiss for Lack of Jurisdiction Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello. (Quast, Paul) (Entered: 03/08/2019)

04/02/2019

53 MOTION for Leave to Appear Pro Hac Vice for admission of CHRISTOPHER J. HAJEC Filing fee: $ 100, receipt number 0101-

7616867 by Immigration Reform Law Institute.(Bennion, Bradly) (Main Document 53 replaced on 4/3/2019) (Burgos, Sandra). (Entered: 04/02/2019)

04/02/2019

54 MOTION for Leave to Appear Pro Hac Vice for admission of JOHN M. MIANO Filing fee: $ 100, receipt number 0101-7617029 by Immigration Reform Law Institute.(Bennion, Bradly) (Entered: 04/02/2019)

04/02/2019

55 MOTION for Leave to File Amicus Brief by Immigration Reform Law Institute. (Attachments: # 1 Amicus Brief)(Bennion, Bradly) (Entered: 04/02/2019)

04/08/2019

56 MEMORANDUM in Opposition re 51 Second MOTION to Dismiss for Lack of Jurisdiction Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Leave to File Granted February 8, 2019) filed by C.J., E.O., E.O., Jr., F.C.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Cacace, Joseph) (Entered: 04/08/2019)

04/08/2019

57 MOTION for Discovery Jurisdictional Discovery by E.O., E.O., Jr., K.O., L.J..(Warecki, Nathan) (Entered: 04/08/2019)

04/12/2019

58 Assented to MOTION for Extension of Time to May 8, 2019 to File Response/Reply as to 57 MOTION for Discovery Jurisdictional Discovery by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello.(Quast, Paul) (Entered: 04/12/2019)

04/16/2019

59 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 58 Assented to Motion for Extension of Time to File Response/Reply re 57 MOTION for Discovery Jurisdictional Discovery. Response due by 5/8/2019. (Burgos, Sandra) (Entered: 04/16/2019)

05/08/2019 60

REPLY to Response to 51 Second MOTION to Dismiss for Lack of Jurisdiction Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello. (Quast, Paul) (Entered: 05/08/2019)

05/08/2019

61 Opposition re 57 MOTION for Discovery Jurisdictional Discovery filed by Alex Azar, L. Francis Cissna, Gene Hamilton,

05/10/2019
05/10/2019
05/14/2019 05/17/2019 05/17/2019 05/21/2019 05/21/2019

Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello. (Attachments: # 1 Exhibit)(Quast, Paul) (Entered: 05/08/2019)
62 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 53 Motion for Leave to Appear Pro Hac Vice Added Christopher J. Hajec. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Burgos, Sandra) (Entered: 05/10/2019)
63 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 54 Motion for Leave to Appear Pro Hac Vice Added John M. Miano. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Burgos, Sandra) (Entered: 05/10/2019)
64 MOTION for Leave to File Second Amended Class Ation Complaint and Incorporated Memorandum of Law by C.J., E.O., E.O., Jr., F.C.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Cacace, Joseph) (Entered: 05/14/2019)
65 MOTION to Strike 60 Reply to Response to Motion, by C.J., E.O., E.O., Jr., F.C..(Cacace, Joseph) (Entered: 05/17/2019)
66 MOTION for leave from Compliance with Service Requirements in Local Rule 15.1 by C.J., E.O., E.O., Jr., F.C..(Cacace, Joseph) (Entered: 05/17/2019)
67 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 55 Motion for Leave to File Amicus Brief. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. (Castles, Martin) (Entered: 05/21/2019)
68 ELECTRONIC NOTICE Setting Hearing on Motion 51
Second MOTION to Dismiss for Lack of Jurisdiction Second

MOTION TO DISMISS FOR FAILURE TO STATE A

CLAIM , 65 MOTION to Strike 60 Reply to Response to Motion, , 64 MOTION for Leave to File Second Amended Class Ation Complaint and Incorporated Memorandum of Law, 57 MOTION for Discovery Jurisdictional Discovery, 66 MOTION for leave from Compliance with Service Requirements in Local Rule 15.1 : Motion Hearing set for 6/17/2019 at 3:00 PM in Courtroom 2 - Worcester before District Judge Timothy S. Hillman. (Castles, Martin) (Entered: 05/21/2019)

05/21/2019

69 Opposition re 65 MOTION to Strike 60 Reply to Response to Motion, and Motion for Leave to File 46-Page Reply filed by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello. (Quast, Paul) Modified on 5/22/2019 (Jones, Sherry). (Entered: 05/21/2019)

05/22/2019

70 AMICUS BRIEF filed by Immigration Reform Law Institute in Support of Defendants and Dismissal. (Hajec, Christopher) (Entered: 05/22/2019)

05/24/2019

71 NOTICE of Appearance by Mary H. Mason on behalf of Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello (Mason, Mary) (Entered: 05/24/2019)

05/28/2019

72 Opposition re 64 MOTION for Leave to File Second Amended Class Ation Complaint and Incorporated Memorandum of Law filed by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello. (Quast, Paul) (Entered: 05/28/2019)

05/31/2019 73

Opposition re 66 MOTION for leave from Compliance with Service Requirements in Local Rule 15.1 filed by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello. (Quast, Paul) (Entered: 05/31/2019)

06/07/2019

74 Opposition re 66 MOTION for leave from Compliance with Service Requirements in Local Rule 15.1 , 64 MOTION for Leave to File Second Amended Class Ation Complaint and Incorporated

06/11/2019 06/12/2019 06/17/2019

Memorandum of Law filed by UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(MacWilliams, Phil) (Entered: 06/07/2019)
75 NOTICE of Appearance by Thomas G. Ward on behalf of Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello (Ward, Thomas) (Entered: 06/11/2019)
76 Notice of Supplemental Authorities re 51 Second MOTION to Dismiss for Lack of Jurisdiction Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Attachments: # 1 Supplement)(Quast, Paul) (Entered: 06/12/2019)
77 Electronic Clerk's Notes for proceedings held before District Judge Timothy S. Hillman: Motion Hearing held on 6/17/2019 re 57 MOTION for Discovery Jurisdictional Discovery filed by L.J., E.O., K.O., E.O., Jr., 66 MOTION for leave from Compliance with Service Requirements in Local Rule 15.1 filed by F.C., E.O.,
C.J., E.O., Jr., 65 MOTION to Strike 60 Reply to Response to
Motion, filed by F.C., E.O., C.J., E.O., Jr., 51 Second MOTION to Dismiss for Lack of Jurisdiction Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Jefferson Beauregard Sessions, III, Thomas Homan, Alex Azar, L. Francis Cissna, John F Kelly, Stephen Miller, Gene Hamilton, Ronald D Vitiello, Kevin K. McAleenan, Kirstjen Nielsen, Scott Lloyd, 64 MOTION for Leave to File Second Amended Class Ation Complaint and Incorporated Memorandum of Law filed by F.C., E.O., C.J., E.O., Jr., Case called, Counsel appear for motion hearing, Court hears arguments of counsel, Court rules taking under
advisement 51 Motion to Dismiss for Lack of Jurisdiction;
taking under advisement 51 Motion to Dismiss for Failure to State a Claim; taking under advisement 57 Motion for Discovery; taking under advisement 64 Motion for Leave to File Document ; taking under advisement 65 Motion to Strike ; taking under advisement 66 Motion for leave from Compliance with Service Requirements. (Court Reporter: Marianne Kusa-Ryll at justicehill@aol.com)(Attorneys present: Cooper,Cacace,Warecki/Mason,Ward,Quast,Sady) (Castles, Martin) (Entered: 06/17/2019)

06/25/2019
06/25/2019 10/04/2019 10/08/2019 11/07/2019 11/08/2019 11/20/2019 11/21/2019

78 Transcript of Motion Hearing held on June 17, 2019, before Judge Timothy S. Hillman. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Marianne Kusa-Ryll at justicehill@aol.com Redaction Request due 7/16/2019. Redacted Transcript Deadline set for 7/26/2019. Release of Transcript Restriction set for 9/23/2019. (Scalfani, Deborah) (Entered: 06/25/2019)
79 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/generalinfo.htm (Scalfani, Deborah) (Entered: 06/25/2019)
80 Notice of Supplemental Authorities re 51 Second MOTION to Dismiss for Lack of Jurisdiction Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Attachments: # 1 MejiaMejia Opinion, # 2 Mejia-Mejia Order)(Quast, Paul) (Entered: 10/04/2019)
81 Response by K.O. to 80 Notice of Supplemental Authorities, . (Cacace, Joseph) (Entered: 10/08/2019)
82 Notice of Supplemental Authorities re 69 MOTION for Leave to File (Attachments: # 1 Exhibit Ms. J.P., et al. v. Sessions, et al., slip op., No. 2:18-cv-06081-JAK-SK (C.D. Cal. Nov. 5, 2019)(Demissie, Derege) (Entered: 11/07/2019)
83 Response by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello to 82 Notice of Supplemental Authorities . (Quast, Paul) (Entered: 11/08/2019)
84 NOTICE by C.J., E.O., E.O., Jr., F.C., K.O., L.J. Plaintiffs' Notice of Additional Relevant Facts and Evidence (Warecki, Nathan) (Entered: 11/20/2019)
85 Response by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello to 84 Notice (Other) . (Quast, Paul) (Entered: 11/21/2019)

02/03/2020 86

District Judge Timothy S. Hillman: MEMORANDUM OF
DECISION AND ORDER entered granting 51 Motion to Dismiss for Lack of Jurisdiction as the Court lacks personal jurisdiction over the Defendants and venue is improper in this District, denying 57 Motion for Jurisdictional Discovery; denying 65 Motion to Strike; and granting 69 Motion for Leave to File reply. This case shall be transferred to the United States District Court for the District of Columbia. (Castles, Martin) (Entered: 02/03/2020)

02/03/2020

87 Case Electronically transferred to the District of Columbia. (Castles, Martin) Modified on 2/4/2020 (Jones, Sherry). (Entered: 02/03/2020)

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 Case 4:18-cv-40149-TSH Document 1 Filed 09/05/18 Page 1 of 55

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

______________________________________________

)

K.O. and E.O., Jr., by and through their parents and next )

friends, E.O. and L.J.; and C.J, by and through his father )

and next friend F.C.; each individually and on behalf of )

all others similarly situated,

)

) CIVIL ACTION NO.________

Plaintiffs,

)

)

v.

)

)

JEFFERSON BEAUREGARD SESSIONS III,

)

Attorney General of the United States; KIRSTJEN

)

NIELSEN, Secretary of the United States Department )

of Homeland Security (DHS); JOHN F. KELLY, White )

House Chief of Staff; STEPHEN MILLER, Senior

)

Advisor to the President; GENE HAMILTON,

)

Counselor to the Attorney General Sessions; THOMAS )

HOMAN, former Director of United States

)

Immigration and Customers Enforcement (ICE);

)

RONALD D. VITIELLO, Acting Director of ICE; L. )

FRANCIS CISSNA, Director of United States

)

Citizenship and Immigration Services (USCIS);

)

KEVIN K. MCALEENAN, Commissioner of United )

States Customs and Border Protection (CBP); ALEX )

AZAR, Secretary of the United States Department of )

Health and Human Services (HHS); SCOTT LLOYD, )

Director of the United States Office of Refugee

)

Resettlement (ORR); JOHN DOE ICE AGENTS;

)

JOHN DOE CBP AGENTS; and JOHN DOE ORR

)

PERSONNEL,

)

)

Defendants.

)

_______________________________________________ )

CLASS ACTION COMPLAINT AND JURY DEMAND Introduction
1. The United States of America was founded on the bedrock principle that our nation is a beacon of hope to people everywhere seeking refuge from poverty, persecution, and violence. Emma Lazarus's sonnet on the Statue of Liberty famously rings out: "Give me your
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Case 4:18-cv-40149-TSH Document 1 Filed 09/05/18 Page 2 of 55
tired, your poor, your huddled masses yearning to be free." Defendants have betrayed this fundamental principle. In doing so, they have betrayed the United States Constitution and harmed those most vulnerable: children. Through this lawsuit, Plaintiffs, on behalf of a class of similarly situated children, seek to hold Defendants accountable for their actions in accordance with the rule of law.
2. Plaintiffs seek damages and the establishment of a fund for the mental health treatment of all class members to remedy the harm caused by the Defendants' forcible separation of well over 2,500 children from their parents with no legal justification and for the express purpose of inflicting emotional and psychological harm to deter immigration, particularly from Central and South American countries. Many of these children and their parents, including the Plaintiffs in this case, fled their native countries to lawfully seek asylum upon arriving in the United States.
3. Defendants forcibly separated these young children from their parents without any allegations of abuse, neglect, or parental unfitness, and without legal proceedings or hearings of any kind. Defendants then detained these young, terrified children in facilities often thousands of miles from their parents.
4. Defendants forcibly separated these families even though there were ways for Defendants to keep immigrant children together with their parents, including shelters that house families together and immigration family detention centers where families can be detained together while they await the adjudication of their immigration cases, as well as electronic ankle monitoring programs assuring appearances of adults at immigration hearings.
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5. Forced separation of children from their parents causes severe and often permanent emotional and psychological harm to young children, particularly when those children are already traumatized from fleeing violence and persecution in their home countries.
6. The Defendants have violated the fundamental right to family integrity protected by the Due Process Clause of the Fifth Amendment of the United States Constitution by forcibly taking young children from their parents with no legal justification and without a hearing and later coercing parents into waiving their children's rights to pursue asylum, withholding of removal, and other statutory claims available to migrant children and their families. Defendants have also violated the Due Process Clause by subjecting children to punitive conditions while they were being held in civil immigration detention and failing to provide them adequate and necessary mental health treatment. In addition, Defendants have violated the Equal Protection guarantee of the Fifth Amendment by discriminating against immigrant children, particularly those from Central and South American countries, on the basis of race, ethnicity, or national origin.
7. Moreover, based on Defendants' conduct, the United States government is liable for the torts of intentional and negligent infliction of emotional distress, false imprisonment, false arrest, assault and battery, and for the loss of consortium that the minor Plaintiffs have suffered as a result of the harm caused to their parents by Defendants' conduct. Plaintiffs intend to present tort claims to the appropriate federal agencies under the Federal Tort Claims Act based on the allegations in this Complaint. Plaintiffs reserve the right to seek leave to amend this Complaint in due course should Plaintiffs' claims be finally denied by any of those agencies. See 28 U.S.C. § 2675.
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Parties 8. Plaintiff K.O. brings this lawsuit through her parents and next friends, E.O. and L.J., as a result of her incapacity due to her minor status. 9. Plaintiff E.O., Jr. is K.O.'s brother and he brings this lawsuit through his parents and next friends, E.O. and L.J., as a result of his incapacity due to his minor status. 10. K.O., E.O., Jr., and their parents all reside in Westborough, Worcester County, Massachusetts. They are all seeking asylum in the United States and fleeing violence and persecution in Guatemala. 11. Plaintiff C.J. brings this lawsuit through his father and next friend, F.C., as a result of his incapacity due to his minor status. 12. C.J. and F.C. reside in Westborough, Worcester County, Massachusetts. They are seeking asylum in the United States and fleeing violence and persecution in Guatemala. 13. Plaintiffs bring this action on their own behalf and on behalf of all others similarly situated nationwide. 14. Defendant Jefferson Beauregard Sessions III is the Attorney General of the United States and is sued in his individual capacity. General Sessions has responsibility for the administration of the immigration laws under 8 U.S.C. § 1103, oversees the Executive Office of Immigration Review, is empowered to grant asylum or other relief, and was a legal custodian of Plaintiffs when they were held in detention. Defendant Sessions has responsibility for implementing United States immigration laws, policies, and practices, including practices related to family separation and family detention at the United States Southwestern border. 15. Defendant Kirstjen Nielsen is the Secretary of DHS and is sued in her individual capacity. Secretary Nielsen directs each of the component agencies within DHS, including ICE,
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CBP, and USCIS. Defendant Nielsen has responsibility for the administration of the immigration laws under 8U.S.C. § 1103, is empowered to grant asylum or other relief, and was a legal custodian of Plaintiffs when they were held in detention. Defendant Nielsen is responsible for implementing United States immigration laws, policies, and practices, including practices related to family separation and family detention at the United States Southwestern border.
16. Defendant John F. Kelly is currently the White House Chief of Staff and he is sued in his individual capacity. Kelly served as the Secretary of DHS from January 20, 2017 through July 31, 2017. In that role, Secretary Kelly directed each of the component agencies of DHS, including ICE, CBP, and USCIS, had responsibility for the administration of the immigration laws under 8 U.S.C. § 1103, and was empowered to grant asylum or other relief. Defendant Kelly was responsible for implementing United States immigration laws, policies, and practices, including practices related to family separation and family detention at the United States Southwestern border. Kelly continued to have an important role in the development, adoption, and implementation of the family separation practice in his role as White House Chief of Staff.
17. Defendant Stephen Miller is a Senior Advisor to the President of the United States and is sued in his individual capacity. Mr. Miller is widely reported to have been the architect of the Defendants' practice of forcibly separating migrant families at the Southwestern border.
18. Defendant Gene Hamilton is a Counselor to the Attorney General and is sued in his individual capacity. Mr. Hamilton is widely reported to have been closely involved in the development of the Defendants' practice of forcibly separating migrant families at the Southwestern border.
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Case 4:18-cv-40149-TSH Document 1 Filed 09/05/18 Page 6 of 55
19. Defendant Thomas Homan served as the Director of ICE from January 30, 2017 through his retirement on June 29, 2018 and he is sued in his individual capacity. In his role as Director of ICE, Mr. Homan had responsibility for enforcing federal immigration law including along the Southwestern border.
20. Defendant Ronald D. Vitiello is currently the Acting Director of ICE, which office he assumed on June 30, 2018, and is sued in his individual capacity. Before serving as Acting Director of ICE, Vitiello was the Acting Deputy Commissioner of CBP from April 25, 2017 through June 29, 2018. In his role as Acting Director of ICE, Mr. Homan has responsibility for enforcing federal immigration law including along the Southwestern border. In his role as Acting Deputy Commissioner of CBP, Mr. Vitiello had responsibility for processing and detaining noncitizens apprehended near the United States border.
21. Defendant L. Francis Cissna is the Director of USCIS and is sued in his individual capacity. In his role as Director of USCIS, Cissna is responsible for processing immigration and naturalization applications and, through its Asylum Officers, conducts interviews of certain individuals apprehended at the border to determine whether they have a credible fear of persecution and should be permitted to apply for asylum.
22. Defendant Kevin K. McAleenan is the Commissioner of CBP and is sued in his individual capacity. Commissioner McAleenan is responsible for the initial processing and detention of noncitizens who are apprehended near the United States border.
23. Defendant Alex Azar is the Secretary of HHS and is sued in his individual capacity. Secretary Azar is responsible for "unaccompanied" noncitizen children in his role as Secretary of HHS.
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24. Defendant Scott Lloyd is the Director of ORR and is sued in his individual capacity. Director Lloyd is responsible for providing care and placement for "unaccompanied" noncitizen children in his role as Director of ORR, which is a component of HHS.
25. Defendants John Doe ICE Agents are sued in their individual capacities. Defendants were federal law enforcement agents employed by ICE and DHS whose identities are at this time unknown to Plaintiffs. The ICE Agents were empowered by law and practice to execute searches, make arrests for violations of federal law, and make or enforce custodial determinations with regard to the Plaintiffs which resulted in a prolonged separation from their parents. When and if the identities of Defendants John Doe ICE Agents become known to Plaintiff, Plaintiff may amend this Complaint to add said ICE Agents as named Defendants.
26. Defendants John Doe CBP Agents are sued in their individual capacities. Defendants were federal law enforcement agents employed by CBP and DHS whose identities are at this time unknown to Plaintiffs. The CBP Agents were empowered by law and practice to execute searches, make arrests for violations of federal law, and make or enforce custodial determinations with regard to the Plaintiffs which resulted in a prolonged separation from their parents. When and if the identities of Defendants John Doe CBP Agents become known to Plaintiffs, Plaintiffs may amend this Complaint to add said CBP Agents as named Defendants.
27. Defendants John Doe ORR Personnel are sued in their individual capacities. Defendants were either federal employees employed by ORR and HHS or employees of entities with which ORR and HHS contracted to provide services and whose identities are at this time unknown to Plaintiffs. The ORR Personnel were empowered by law and practice to make or enforce custodial determinations with regard to Plaintiffs which resulted in a prolonged separation from their parents. When and if the identities of Defendants John Doe ORR
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Personnel become known to Plaintiffs, Plaintiffs may amend this Complaint to add said ORR Personnel as named Defendants.
28. At all relevant times, the Defendants have acted under color of federal law in the course and scope of their duties and functions as agents, employees, and officers of the United States in engaging in the conduct described in this Complaint.
29. At all relevant times, the Defendants each violated clearly established law of which a reasonable person would have known, including the class members' statutory rights, procedural and substantive due process rights, and their right to equal protection of the laws.
Jurisdiction and Venue 30. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 (federal question). 31. This Court has personal jurisdiction over all Defendants under M.G.L. c. 223A, § 3(d), because Plaintiffs' claims arise from Defendants' having caused tortious injury in Massachusetts by an act or omission outside Massachusetts and each Defendant regularly does or solicits business or engages in a persistent course of conduct in Massachusetts. 32. Venue is proper in this District under 28 U.S.C. § 1391(b)(3), because the Defendants are subject to personal jurisdiction in this District, and under 28 U.S.C. § 1391(e)(1) because the Plaintiffs reside in this district and no real property is involved in the action.
Facts Legal Framework Under Federal Immigration Law 33. Pursuant to Section 208(a)(1) of the Immigration and Nationality Act ("INA"), "[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters)," may generally
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apply for asylum "irrespective of such alien's status." See 8 U.S.C. § 1158(a)(1). 1 The INA and its accompanying regulations establish procedures for the adjudication of asylum claims. Id; see also INA § 235(b), 8 U.S.C. § 1225(b); 8 C.F.R. §§ 208.1-208.31.
34. Even individuals who initially fall within the INA's "expedited removal" procedures, meaning they would bypass formal removal proceedings, are entitled to pursue asylum once the person indicates an intention to apply for asylum and demonstrates a credible fear of persecution at an interview before an asylum officer. 8 U.S.C. §§ 1225(b)(1)(A)(i), 1225(b)(1)(B); 8 C.F.R. §§ 235.1-235.13.
35. The January 1997 settlement agreement in Flores v. Reno, 85-cv-4544 (C.D. Cal.) governs the detention and release of "alien" children. The Flores settlement remains binding on federal agencies, including DHS, HHS, and all respective agency components such as ICE, CBP, USCIS, and ORR.2 In 2008, Congress enacted the Trafficking Victims Protection Reauthorization Act (the "TVPRA"), Pub. L. 110-457, 110 Stat. 5044 (2008), which paralleled certain aspects of the Flores settlement and affirmed ORR's responsibility for the care and custody of unaccompanied minors.
36. The Flores settlement and its progeny, including the statutory rights and obligation within the TVPRA, provide a "nationwide policy for the detention, release, and treatment of minors in the custody of INS [which is the predecessor to ICE, CBP, and USCIS]," which requires the government to treat "all minors in its custody with dignity, respect and special concern for their particular vulnerability as minors." Exhibit 1, Flores Settlement ¶¶ 9-11; see 8
1 The INA defines the term "alien" as "any person not a citizen or national of the United States." INA § 101(a)(3), 8 U.S.C. § 1101(a)(3). 2 In 2002, Congress enacted the Homeland Security Act, Pub. L. 107–296, 116 Stat. 2135 (2002), and transferred authority over the care and placement of unaccompanied minors to ORR.
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U.S.C. § 1232. A "minor" is "any person under the age of eighteen (18) years who is detained in the legal custody of the INS." See id. ¶ 4; 8 U.S.C. § 1232(g)(2); Flores v. Lynch, 828 F.3d 898, 905-06 (9th Cir. 2016).
37. Paragraph 14 of the Flores settlement requires that "[w]here the INS determines that the detention of the minor is not required either to secure his or her timely appearance before the INS or the immigration court, or to ensure the minor's safety or that of others, the INS shall release a minor from its custody without unnecessary delay." Exhibit 1, Flores Settlement ¶ 14. Paragraph 14 also sets forth the "order of preference" for the release of a child and release to a parent is preferred. Id.
38. Critically, the Flores settlement requires the federal government to "place each detained minor in the least restrictive setting appropriate to the minor's age and special needs, provided that such setting is consistent with its interests to ensure the minor's timely appearance before the INS and the immigration courts and to protect the minor's well-being and that of others." Exhibit 1, Flores Settlement ¶ 11 (emphasis added); 8 U.S.C. § 1232(c)(2)(A).
39. Under the Flores Settlement, children must be released from detention within five days, or within twenty days in certain emergency circumstances, to a parent, legal guardian, adult relative, adult designated by a legal guardian, or (if none of these are available) a licensed program willing to accept legal custody. Id. ¶¶ 12, 14.
40. Ordinarily when DHS, usually through ICE or CBP, detains an undocumented child who is traveling alone and unaccompanied by a parent, the relevant federal agencies follow an established process. ICE or CBP may detain an unaccompanied child for up to 72 hours as other federal agencies locate an appropriate facility for that child. ICE or CBP then must turn the child over to HHS. 8 U.S.C. § 1232(b)(3).
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41. Once the unaccompanied children are in ORR custody, they are typically supervised and placed in ORR-funded and supervised facilities, where staff must attempt to locate a parent and determine if family reunification is possible. See generally 8 U.S.C. §§ 1232(c)(2)-(c)(3). If not, ORR staff will try to locate another family member, relative, family friend, or caretaker in the United States to serve as a sponsor who can care for the child during the pendency of the child's immigration proceedings. Id.
42. When ORR cannot find a sponsor, the unaccompanied children are moved to secondary ORR-contracted and state-licensed facilities throughout the country. Id. If DHS places the child in removal proceedings or the child has an affirmative pathway to legal immigration status, ORR will place the child in an ORR-contracted and state-licensed long-term foster care program while the immigration process continues. See 8 U.S.C. § 1232(a)(5)(D).
Defendants' Practice of Forcibly Separating Children from their Parents 43. For over a year, the United States government has forcibly separated thousands of migrant children from their families for no legitimate purpose. These children have been held as civil immigration detainees, and not for any criminal charge or conviction. Yet these children were separated from their parents indefinitely and without providing information to family members about one another. Defendants have adopted and implemented this practice for the express purposes of demonstrating to immigrants the agony that parents should expect if they dare to enter the United States with their children. 44. Families presenting at Southwestern ports of entry to seek asylum were refused entry into the United States. Border officials turned these families away unlawfully on the false claim that the United States is "full" or no longer accepting asylum seekers. This unlawful
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practice artificially created illegal entry violations along the Southwestern border at places other than official ports of entry that would not have occurred otherwise.
45. Children forcibly separated from their parents were transferred to the custody of ORR and sent to makeshift detention facilities and temporary housing. ORR deemed these children "unaccompanied minors." Under ORR policies, an unaccompanied minor can be released from ORR custody only after ORR completes an onerous and lengthy procedure to determine that a potential custodian, or "sponsor," is suitable for providing for the child's physical and mental well-being. As a result of ORR's deeming the children "unaccompanied minors," their parents were wrongfully treated as "sponsors" (instead of parents) of their own children.
46. As early as March 2017, a senior DHS official acknowledged that Defendants were considering a proposal to separate children from their parents at the Southwestern border. M. Mallonee, DHS Considering Proposal to Separate Children from Adults at Border, March 4, 2017, available at https://www.cnn.com/2017/03/03/politics/dhs-children-adultsborder/index.html.
47. On March 7, 2017, then-Secretary of DHS John Kelly confirmed that DHS was considering a practice of separating children from their parents "to deter more movement." D. Diaz, Kelly: DHS Considering Separating Undocumented Children from their Parents at the Border, March 7, 2017, available at https://www.cnn.com/2017/03/06/politics/john-kellyseparating-children-from-parents-immigration-border/index.html . While Kelly later backtracked after harsh criticism, an inside source reported to the press that the family separation proposal was still under consideration at DHS as of August 2017. J. Blitzer, How the Trump Administration Got Comfortable Separating Immigrant Kids from their Parents, The New
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Yorker, May 30, 2018, available at https://www.newyorker.com/news/news-desk/how-thetrump-administration-got-comfortable-separating-immigrant-kids-from-their-parents.
48. In fact, Defendants at DHS began implementing the practice in secret in the El Paso section of the border in western Texas from July to November 2017. D. Lind, Trump's DHS is Using an Extremely Dubious Statistic to Justify Splitting Up Families at the Border, Vox, May 8, 2018, available at https://www.vox.com/policy-and-politics/2018/5/8/17327512/sessionsillegal-immigration-border-asylum-families.
49. The forced separation of families continued well into 2018 and took place without a hearing or any process whatsoever regardless of the family's circumstances or the needs of the children. It also occurred regardless of where or how the family entered, whether they sought asylum, whether they were charged with unlawful entry or whether a family member had passed a credible fear interview under federal asylum law.
50. Defendants have taken children as young as infants from their parents, often with no warning or opportunity to say goodbye, and with little to no information provided about where the Defendants were taking the children or when they would next see their parents.
51. Most of these migrant families fled their home countries to lawfully seek asylum once physically present in the United States. See 8 U.S.C. § 1158(a)(1).
52. Nevertheless, without any allegations that the parents are unfit or abusive, the Defendants forcibly separated these asylee-seeking parents from their young children, who are automatically considered derivative asylee applicants on their parents' claim, and detained the children in facilities for "unaccompanied" minors, often thousands of miles away from their parents who accompanied them in the United States before the government forcibly separated
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them. The government separated families without providing notice to the parents or children of each other's whereabouts or well-being.
53. Government officials have torn some children from the arms of their parents while crying and pleading not to be taken away.
54. In other cases, government officials have told children they were going to play with other children, but after separating the children from their parents they were not returned.
55. In some cases, the parents were falsely told that they would be going to court only to be taken to a different detention cell, separated from their children. They were then transported to a different detention center without the opportunity to say goodbye to their children or to explain that they would not see each other for some time.
56. Many parents were told the children would be "adopted" and they would not see their children again.
57. Many parents were deported without their children. 58. During the separation, parents and children were often prevented from communicating for weeks or longer, and even when allowed to communicate typically children could only communicate with a parent by telephone for a few short minutes and not permitted to talk about where they were being held. These phone calls were closely monitored. In the detention facilities where they were kept, children were not allowed to touch each other. While staff at many detention facilities were permitted to hold the youngest children, they were instructed not to hold or touch older children. 59. Additionally, in some of the makeshift detention centers children were held in areas with no beds or mattresses. Some of the children were subjected to abuse by those working at the detention centers.
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60. And the medical care at the detention centers was often grossly inadequate, even leading to the death of a one-year old child who developed a respiratory infection at an immigration jail in Texas. The child was turned away twice by the facility's health clinic, the treatment she received may have exacerbated the condition given her age, and she was cleared for release without a medical examination. The child then spent six weeks in two hospitals before dying from bronchiectasis, pulmonitis, pneumothorax, or collapsed lung. M. Sacchetti, Mother blames toddler's death on poor medical care in U.S. immigration jail, Washington Post, August 28, 2018, available at https://wapo.st/2PJRMv5?tid=ss_mail&utm_term=.3dddd9b5a241.
61. These conditions of confinement further traumatized the children separated from their parents and traumatized the parents who were separated from their children.
62. Under HHS Secretary Azar's direction, HHS would not allow media cameras into facilities housing immigrant children separated from their parents. Yet Azar claimed, incredibly, that "[w]e have nothing to hide about how we operate these facilities" and that "[i]t is one of the great acts of American generosity and charity, what we are doing for these unaccompanied kids who are smuggled into our country or come across illegally." M. Rod, HHS Secretary: We're Performing Great Act of "Generosity and Charity" for Immigrant Children, July 10, 2018, available at https://www.cnn.com/2018/07/10/politics/azar-hhs-child-separation-immigrationcharity-cnntv/index.html.
63. Ripping children away from their parents when they attempt to cross the Southwestern border, many of them seeking asylum, is the polar opposite of generosity. It is conduct that shocks the conscience, bespeaks a callous disregard for the human beings in HHS's care, and demonstrates the discriminatory animus behind these practices. M. Rod, HHS Secretary: We're Performing Great Act of "Generosity and Charity" for Immigrant Children,
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July 10, 2018, available at https://www.cnn.com/2018/07/10/politics/azar-hhs-child-separationimmigration-charity-cnntv/index.html.
64. Attempts by parents to be reunited with their children were unlawfully delayed and made unnecessarily cumbersome as a result of the Defendants' deliberate decision to classify the children as "unaccompanied minors" even though they entered the United States with their parents. This classification meant that parents had to go through a lengthy and complex process to apply to be a "sponsor" of their own children in order to be reunited. This exacerbated the harm done by the separation by prolonging it and transforming reunification into an unnecessarily arduous journey through a labyrinth of government bureaucracy.
65. At least one HHS official has stated that "[w]hat went wrong is the children separated from their parents were referred as unaccompanied alien children when in fact they were accompanied." N. Miroff & K. Memirjian, Senate Panel Skewers Trump Officials Over Migrant Family Separations, Wash. Post, July 31, 2018, available at https://www.washingtonpost.com/world/national-security/lawmakers-to-question-trumpofficials-on-migrant-family-separations-struggle-to-reunite-them/2018/07/31/ddb61390-946711e8-8ffb-5de6d5e49ada_story.html?utm_term=.27575f06d9ea.
66. During his tenure, Director Lloyd has effectively transformed ORR from an agency designed to care for the health and well-being of migrant children into what former ORR Director Robert Carey has called "a juvenile detention agency." R. Planas, A Single Trump Appointee Was Responsible for Keeping Hundreds of Kids Locked Up Longer, HuffPost, July 26, 2018, available at https://www.huffingtonpost.com/entry/scott-lloyd-refugeeresettlement_us_5b58cd0fe4b0fd5c73cb3c1a. This was due in part to Director Lloyd's insistence in June 2017, at a time when the forced separation of families was under consideration, that he
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personally review and approve release decisions involving unaccompanied minors housed in staff-secure facilities. This led to extensive delays in the release of certain minors in ORR custody. Id. A federal judge enjoined that practice in June, ruling that the plaintiffs demonstrated a likelihood of success on the merits of their claims that the practice violated the Administrative Procedure Act and TVPRA. L.V.M. v. Lloyd, 2018 WL 3133965 (S.D.N.Y. June 27, 2018).
67. Director Lloyd's intentional delays exacerbated ORR's ability to process the thousands of children separated from their parents under Defendants' family separation practice. Under Director Lloyd's leadership, ORR was unequipped to handle the influx of "unaccompanied" minors, and Director Lloyd deliberately failed to improve the situation until ordered to do so by a federal judge in California earlier this summer. Defendants' "Zero Tolerance Policy" Served as a Pretext to Continue Separating Families
68. On April 6, 2018, General Sessions announced the Trump Administration's socalled "zero-tolerance policy" for illegal entry into the United States in violation of 8 U.S.C. § 1325(a) as a pretext for these family separations. In reality, Defendants had been forcibly separating children from their parents long before the "zero-tolerance policy" was announced. The express purpose of the family separation was to deter immigration to the United States by instilling fear in migrants, particularly those from South and Central American countries. That practice violates the United States Constitution and state tort law.
69. After General Sessions' announcement, ICE Director Homan, USCIS Director Cissna, and CBP Commissioner McAleenan signed onto a letter to DHS Secretary Nielsen urging her to detain and refer for prosecution all parents caught crossing the Mexican border illegally with their children. In other words, Homan, Cissna, and McAleenan pushed for the
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across-the-board implementation of the Justice Department's "zero-tolerance policy" at DHS to serve as a pretext for continuing the Defendants' existing practice of forcibly separating immigrant children from their parents at the Southwestern border. M. Sacchetti, Top Homeland Security Officials Urge Criminal Prosecution of Parents Crossing Border with Children, Washington Post, April 26, 2018, available at https://www.washingtonpost.com/local/immigration/top-homeland-security-officials-urgecriminal-prosecution-of-parents-who-cross-border-with-children/2018/04/26/a0bdcee0-496411e8-8b5a-3b1697adcc2a_story.html?utm_term=.655fc386e41a.
70. According to a letter authored by 17 United States Senators in April 2018, under Director Homan's leadership, ICE "sharply increased arrests and detentions of immigrants with no criminal background" and "[r]eportedly separated hundreds of children of asylum-seekers from their parents," among other things. April 27, 2018 Letter from Sens. to Sec. K. Nielsen, available at https://www.murray.senate.gov/public/index.cfm/2018/4/immigration-senatormurray-raises-questions-about-nomination-of-tom-homan-to-head-immigration-and-customsenforcement
71. On June 20, 2018, President Trump issued an Executive Order purporting to end family separation, but the Executive Order said nothing about reuniting the families who had already been separated or compensating them for the trauma that the Defendants put these families through. Moreover, it took weeks to reunite most of the parents and children and even today not all of these families have been reunited, in some cases because the parents were deported while their children remained detained in the United States.
72. After issuing the Executive Order, President Trump repeatedly emphasized the lawless nature of the government's approach. President Trump proposed that DHS simply deport
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immigrants without a hearing or any legal process whatsoever. On June 21, 2018, President Trump stated: "We shouldn't be hiring judges by the thousands, as our ridiculous immigration laws demand, we should be changing our laws, building the Wall, hire Border Agents and Ice and not let people come into our country based on the legal phrase they are told to say as their password." See https://twitter.com/realdonaldtrump/status/1009770941604298753?lang=en.
73. President Trump again proposed a lawless approach on June 24, 2018: "We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order. Most children come without parents…" K. Rogers & S. Gay Stolberg, Trump Calls for Depriving Immigrants Who Illegally Cross Border of Due Process Rights, N.Y. Times, June 24, 2018, available at https://www.nytimes.com/2018/06/24/us/politics/trump-immigration-judges-due-process.html.
74. These are but a few examples of the torrent of such statements that came from the President and other officials in the Trump Administration. Defendants' Practice of Forcibly Separating Children from their Parents was Motivated by
Discriminatory Animus and an Express Intent to Deter Immigration to the United States by Instilling Fear in Would-be Migrants
75. Defendants and others in the Trump Administration have openly admitted that the practice of forcibly separating families at the Southwestern border, among other enforcement practices, was intended to target immigrants by their race, ethnicity, or national origin. The forcible separation of these families is also consistent with the racist and xenophobic hostility shown toward Latino immigrants, repeatedly voiced and demonstrated by President Trump and carried out by his Administration, including the Defendants in this case.
76. For example, in June 2015, when then-candidate Trump announced his campaign at Trump Tower, he declared: "When Mexico sends its people, they're not sending their best. . . .
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They're bringing drugs. They're bringing crime. They're rapists." Z. Byron Wolf, Trump Basically Called Mexicans Rapists Again, available at https://www.cnn.com/2018/04/06/politics/trump-mexico-rapists/index.html. In that speech, Mr. Trump proposed building a wall along the Southwestern border and making Mexico pay for it. President Trump has repeatedly referred to Mexicans as "criminals" and "thugs."
77. In January of this year, President Trump referred to El Salvador, Haiti, and African countries generally as "shithole countries" and said that the United States should be allowing immigration from countries like Norway instead. E. O'Keefe & A. Gearan, Trump, Condemned for "Shithole" Countries Remark, Denies Comment But Acknowledges "Tough" Language, Washington Post, Jan. 13, 2018, available at https://www.washingtonpost.com/politics/trump-acknowledges-tough-language-but-appears-todeny-shithole-remark/2018/01/12/c7131dae-f796-11e7-beb6c8d48830c54d_story.html?utm_term=.4e58b8638236. The racism behind that statement is selfevident.
78. President Trump has impugned the integrity and independence of federal District Judge Gonzalo Curiel because, Trump said, Judge Curiel was of Mexican descent and "very hostile" to Trump because Trump was "very, very strong on the border."
79. United States House Speaker Paul Ryan appropriately rebuked these outrageous statements, describing them as "the textbook definition of a racist comment." D. Walsh & M. Raju, CNN, June 7, 2016, available at https://www.cnn.com/2016/06/07/politics/paul-ryandonald-trump-racist-comment/index.html.
80. President Trump's clear animus based on race, ethnicity, and national origin provides the context for understanding the unlawful and irrational actions of the Defendants in
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this case. The driving force behind the practice of forcibly separating immigrant families along the Southwestern border was this very animus based on race, ethnicity, and national original, which led to a failure to adhere to the well-established constitutional and statutory rights of Plaintiffs and the class. Each of the Defendants adopted, implemented, enforced, condoned, sanctioned, acquiesced to, and encouraged that practice of forced family separations with the purpose of discriminating against immigrants based on their race, ethnicity, or national origin. Such intentional discrimination on these bases is unconstitutional.
81. What is more, Defendants and others in the Trump Administration have made clear that the express purpose of the forced separation of children from their parents was to deter immigrants, particularly from Central and South American countries, from coming to the United States. The vast majority of immigrants at the Southwestern border are from Central and South American countries and are Latino.
82. During a press interview in May of 2018, Secretary Kelly said that "a big name of the game is deterrence" when asked whether he was in favor of forced family separation. He said family separation "would be a tough deterrent. A much faster turnaround on asylum seekers." Kelly dismissively stated that the traumatized children "will be taken care of—put into foster care or whatever." Transcript: White House Chief of Staff John Kelly's Interview with NPR, National Public Radio, May 11, 2018, available at https://www.npr.org/2018/05/11/610116389/transcript-white-house-chief-of-staff-john-kellysinterview-with-npr.
83. On June 6, 2018, former ICE Director Homan made the deterrence goal plain when he stated: "One thing you got to remember, for that parent who was arrested and his child crying and feeling bad about it, I get it, but what responsibility does he have in this? He chose to
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enter the country illegally in violation of federal law. He chose to do that intentionally. . . . He put himself in the position." C. Da Silva, ICE Chief Defends Separating Families at Border After U.N. Condemns Practice as Rights Violation, Newsweek, June 6, 2018, available at https://www.newsweek.com/ice-chief-defends-separating-families-border-after-un-condemnspractice-rights-960825.
84. Defendant Stephen Miller was a driving force in the adoption and implementation of the forcible family separation practice. Mr. Miller has embraced family separation and described it as "a simple decision by the administration . . . . The message is that no one is exempt from immigration law." C. Danner, Separating Families at the Border Was Always Part of the Plan, June 17, 2018, N.Y. Magazine, available at http://nymag.com/daily/intelligencer/2018/06/separating-families-at-border-was-always-part-ofthe-plan.html.
85. Mr. Miller's anti-Latino animus is well-known and long-standing. Even in high school he wrote an opinion piece for the Santa Monica Lookout which argued that "very few, if any, Hispanic students" make it to honors classes because the school gives them a "crutch" by ensuring that "all announcements are written in both Spanish and English." S. Tatum, How Stephen Miller, the Architect Behind Trump's Immigration Policies, Rose to Power, June 23, 2018, available at https://www.cnn.com/2018/06/23/politics/stephen-miller-immigration-familyseparation/index.html.
86. Mr. Miller's anti-immigrant and anti-Latino animus has only hardened over the years. In fact an outside White House adviser recently stated that "Stephen actually enjoys seeing those pictures at the border" of Central and South American children being separated from their parents. G. Sherman, "Stephen Actually Enjoys Seeing Those Pictures at the Border":
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The West Wing is Fracturing Over Trump's Callous Migrant-Family Policy, Vanity Fair, June 20, 2018, available at https://www.vanityfair.com/news/2018/06/stephen-miller-familyseparation-white-house.
87. Defendant Gene Hamilton, who has been described as "a close ally of Stephen Miller," was reported to be "[a]mong those leading the discussion" about implementing the practice of forcible family separation at the Southwestern border. J. Blitzer, How the Trump Administration Got Comfortable Separating Immigrant Kids from their Parents, The New Yorker, May 30, 2018, available at https://www.newyorker.com/news/news-desk/how-thetrump-administration-got-comfortable-separating-immigrant-kids-from-their-parents.
88. A former government official has reported to the press that Miller and Hamilton, among others, "want to have a different American, and they're succeeding." Moreover, "Miller has only seemed to gain allies in the government" as a result of his role in pushing for the forcible separation of immigrant children from their parents. J. Blitzer, Will Anyone in the Trump Administration Ever Be Held Accountable for the Zero-Tolerance Policy?, The New Yorker, August 22, 2018, available at https://www.newyorker.com/news/daily-comment/willanyone-in-the-trump-administration-ever-be-held-accountable-for-the-zero-tolerance-policy.
89. In public remarks on the "zero tolerance policy" on May 7, 2018, General Sessions emphasized that "[i]f you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law." Exhibit 2, DOJ Press Release (May 7, 2018).
90. Later, General Sessions stated: "We cannot and will not encourage people to bring their children or other children to the country unlawfully by giving them immunity in the process." L. Sanchez, Sessions On Separating Families: If We Build A Wall and Pass
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Legislation, We Won't Have These "Terrible Choices", The Hill, June 18, 2018, available at http://thehill.com/homenews/administration/392785-sessions-on-separating-families-if-we-builda-wall-and-pass.
91. When asked if forced family separation was "absolutely necessary," General Sessions responded: "Yes. . . . We believe every person that enters the country illegally like that should be prosecuted. And you can't be giving immunity to people who bring children with them recklessly and improperly and illegally." H. Hewitt, US Attorney General Jeff Sessions on Children Separated from Parents at Broder, F-1 Visas for PRC Students, and Masterpiece Cakeshop Decision, June 5, 2018, available at http://www.hughhewitt.com/attorney-general-jeffsessions-on-the-immigration-policies-concerning-children-apprehended-at-he-border-and-f-1visas/.
92. Likewise, Secretary Nielsen has said that "[i]llegal actions have and must have consequences. No more free passes, no more get out of jail free cards." T. Kopan, "We Will Not Apologize": Trump DHS Chief Defends Immigration Policy, June 18, 2018, available at https://www.cnn.com/2018/06/18/politics/kirstjen-nielsen-immigration-policy/index.html.
93. At an August 2017 DHS meeting, Mr. Hamilton explained to participants that they would "need to generate paperwork laying out everything we could do to deter immigrants from coming to the U.S. illegally, which included "separating parents from their kids at the border." J. Blitzer, How the Trump Administration Got Comfortable Separating Immigrant Kids from their Parents, The New Yorker, May 30, 2018, available at https://www.newyorker.com/news/news-desk/how-the-trump-administration-got-comfortableseparating-immigrant-kids-from-their-parents.
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94. Counselor to the President Kellyanne Conway also made clear the purpose of Defendants' practice of forcibly separating families: "Nobody likes seeing babies ripped from their mothers' arms . . . but we have to make sure that DHS' laws are understood through the soundbite culture that we live in." Kellyanne Conway: 'Nobody Likes' Policy Separating Migrant Kids at the Border (June 17, 2018), available at https://www.nbcnews.com/politics/firstread/conway-nobody-likes-policy-separating-migrant-kids-border-n884016.
95. General Sessions, Secretary Nielsen, Secretary Kelly, Mr. Miller, Mr. Hamilton, Director Homan and others in the Trump Administration, including the President himself, have also made clear that the forced separation and traumatization of families is being used as a negotiating ploy for political gain.
96. Mr. Miller has stated: "If we were to have those [Republican sponsored] fixes in federal law, the migrant crisis emanating from Central America would largely be solved in a very short period of time," and "[f]amilies would then therefore be able to be kept together and could be sent home expeditiously and safely." T. Hesson, White House's Miller Blames Democrats for Border Crisis, Politico, May 29, 2018, available at https://www.politico.com/story/2018/05/29/stephen-miller-democrats-border-574537 ; see also P. Kasperowicz, ICE Director: Democrats Should "Get Their Facts Straight" Before Protesting Family Separation, Washington Examiner, June 29, 2018, available at https://www.washingtonexaminer.com/news/ice-tom-homan-democrats-get-facts-straightprotesting-family-separation.
Defendants Were Aware of the Traumatic Harm that Children Would Suffer from Being Forcibly Separated from their Parents, but Defendants Did It Anyway, and Failed to Provide the Children with Adequate Mental Health Care 97. Separation of a young child from his or her parent is a traumatic event that has a
devastating impact on the child's psychological well-being. Children are likely to experience 25

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post-traumatic symptoms such as nightmares and other manifestations of anxiety and depression. This damage can be permanent, especially where, as here, the child has already experienced other trauma in their home country, on their journey to the United States, or both.
98. On January 23, 2018, a group of experts in child welfare, juvenile justice, and child development, including the American Association of Pediatrics, criticized the government's practice of separating migrant children from their parents, pointing out that: "[T]he psychological distress, anxiety, and depression associated with separation from a parent would follow the children well after the immediate period of separation—even after the eventual reunification with a parent or other family." Exhibit 3, Jan. 23, 2018 Letter to K. Nielsen.
99. The American Academy of Pediatrics put out another statement opposing the cruel family separation practice on May 8, 2018, in which its President, Colleen Kraft, M.D., wrote: "Separating children from their parents contradicts everything we stand for as pediatricians – protecting and promoting children's health. In fact, highly stressful experiences, like family separation, can cause irreparable harm, disrupting a child's brain architecture and affecting his or her short- and long-term health. This type of prolonged exposure to serious stress - known as toxic stress - can carry lifelong consequences for children." C. Kraft, AAP Statement Opposing Separation of Children and Parents at the Border, available at https://www.aap.org/en-us/about-the-aap/aap-pressroom/Pages/StatementOpposingSeparationofChildrenandParents.aspx.
100. Media reports have explained that "many of the children released to their parents are exhibiting signs of anxiety, introversion, regression and other mental health issues." M. Jordan, A Migrant Boy Rejoins His Mother, But He's Not the Same, N.Y. Times, July 31, 2018, available at https://www.nytimes.com/2018/07/31/us/migrant-children-separation-anxiety.html.
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This includes "acute anxiety around routines that separate [the children] from their parents, such as when the adult bathes or goes into another room." Id.
101. One of the reasons for this is that the children may understand the separation as a punishment. Id. "Decades of research have concluded that children traumatically separated from their parents have a high likelihood of developing emotional problems, cognitive delays and long-term trauma." Id. "More recent studies have found that separation can impair memory and normal production of cortisol, a hormone produced in response to stress." Id.
102. This psychological harm continues after reunification. 103. One 5-year old migrant boy loved playing with the yellow Minion characters from the "Despicable Me" movies before being forcibly separated from his mother. "Now his favorite game is patting down and shackling 'migrants' with plastic cuffs." Id. The boy, who had not nursed in years, pleaded with his mother to be breast-fed after he was finally reunited with his mother. He hid behind a sofa when guests, including undersigned counsel Jesse M. Bless, Esq., visited the family's new home in Philadelphia. Id. 104. "A 3-year old boy who was separated from his mother has been pretending to handcuff and vaccinate people around him, behavior he almost certainly witnessed in [ICE] custody." Id. 105. "A pair of young siblings burst into tears when they spotted police officers on the street." Id. 106. One three-year-old boy refused to look at his mother and pulled away from her embrace when they were initially reunified. See A. Valdes & I. Mejia, 'My Son Is Traumatized': One Separated Family's Reunion, ACLU Press Release, August 24, 2018, available at
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https://www.aclu.org/blog/immigrants-rights/immigrants-rights-and-detention/my-sontraumatized-one-separated-familys.
107. Similarly, parents who arrived with their children at the United States border and were forcibly separated from their children by the Defendants are likely to experience immediate and acute psychological injury as well as lasting and permanent emotional and psychological harm. This includes anxiety, depression, post-traumatic stress disorder, and other trauma-related disorders. The trauma that the children face is compounded by watching their parents suffer and the emotional toll that the parents' own trauma takes on the parent-child relationship. Making matters worse, the Defendants then failed to adequately provide the children with necessary mental health care while the children were in Defendants' custody.
108. Indeed, one parent is reported to have committed suicide after his 3-year-old son was taken from his arms. N. Miroff, A Family Separated at the Border, and this Distraught Father Took His Own Life, Washington Post, June 9, 2018, available at https://www.washingtonpost.com/world/national-security/a-family-was-separated-at-the-borderand-this-distraught-father-took-his-own-life/2018/06/08/24e40b70-6b5d-11e8-9e3824e693b38637_story.html?utm_term=.dca844c151d9. This harm to the parents, of course, will impact the quality of their relationship with their children for years to come.
109. There is no doubt that Defendants were aware of the severe psychological and emotional trauma that forcibly separating children from their parents would cause. Not only is the likelihood of severe harm self-evident, but Defendants were informed of and warned about the likelihood of such harm directly and through many authoritative public statements by other government officials and experts in the field.
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110. For example, on February 12, 2018, 33 United States Senators signed a letter to Secretary Nielsen to express their "deep concern" about "systematically separat[ing] immigrant children from their parents upon arrival in the United States." Exhibit 4, Feb. 12, 2018 Letter from U.S. Sens. to Sec. Nielsen. The Senators wrote to "condemn" this practice and to urge Secretary Nielsen to reject this "cruel" and "grotesquely inhumane" practice that they recognized would "inflict significant trauma on small children." Id.
111. Moreover, Commander Jonathan White of the United States Public Health Service Commissioned Corps (who organized the government's reunification effort at DHS after a federal court in California ordered reunification earlier this year) testified before the Senate Judiciary Committee on July 31, 2018. Commander White told the Judiciary Committee "that he had warned his superiors that separating children from their parents carries a 'significant risk of harm' and could inflict 'psychological injury.'" N. Miroff & K. Memirjian, Senate Panel Skewers Trump Officials Over Migrant Family Separations, Wash. Post, July 31, 2018, available at https://www.washingtonpost.com/world/national-security/lawmakers-to-question-trumpofficials-on-migrant-family-separations-struggle-to-reunite-them/2018/07/31/ddb61390-946711e8-8ffb-5de6d5e49ada_story.html?utm_term=.27575f06d9ea. Commander White told the Senate panel that his superiors assured him that the government was not planning to separate families. Id.
112. Even in the face of these clear and direct warnings the Defendants proceeded to traumatized the class members and then exacerbated the trauma by failing to provide the children with adequate and necessary mental health services, even though the Defendants knew that the class members needed mental health care to address the trauma that Defendants themselves inflicted on the class members.
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113. In the words of a current Trump Administration official: "The expectation was that the kids would go to the Office of Refugee Resettlement, that the parents would get deported, and that no one would care." J. Blitzer, Will Anyone in the Trump Administration Ever Be Held Accountable for the Zero-Tolerance Policy?, The New Yorker, August 22, 2018 (emphasis added), available at https://www.newyorker.com/news/daily-comment/will-anyone-inthe-trump-administration-ever-be-held-accountable-for-the-zero-tolerance-policy. After Traumatizing Children and Parents, Defendants Coerced Parents into Waiving Their
Children's and Their Own Rights to Asylum and Other Relief 114. After subjecting parents and children to some of the most severe trauma of their lives, Defendants proceeded to coerce many parents into signing forms that waived their own and their children's rights to pursue asylum claims in the hope of being reunited with their children more quickly. 115. A senior official speaking on condition of anonymity confirmed early this summer that Defendants did not plan to reunite families until after a parent had lost his or her deportation case, effectively punishing parents who may otherwise pursue an asylum claim or other relief and creating tremendous pressure to abandon such claims so that parents may be reunited with their children. M. Saccheri, M. Miller & R. Moore, Sen. Warren Visits Detention Center, Says No Children Being Returned to Parents There, Washington Post, June 24, 2018, available at https://www.washingtonpost.com/local/immigration/desperate-to-get-children-backmigrants-are-willing-to-give-up-asylum-claims-lawyers-say/2018/06/24/c7fab87c-77e2-11e880be-6d32e182a3bc_story.html?utm_term=.3118c8f35345. 116. Parents have been presented with the option to be deported with their children and waive the children's right to asylum or to be deported alone and leave the child in the United States to pursue an asylum claim. Some who have chosen to be deported alone to let their
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children pursue asylum were not even allowed by ICE to say goodbye to their children but had to wave to their children who sat on a bus. M. Jordan, Migrant Families Have Been Reunited. Now a Scramble to Prevent Deportations, N.Y. Times, July 30, 2018, available at https://www.nytimes.com/2018/07/30/us/migrant-familiesdeportations.html?action=click&module=MoreInSection&pgtype=Article&region=Footer&cont entCollection=U.S.
117. In the past, the government often placed families apprehended at the border in regular removal proceedings without detaining them at all. For other families, the government used expedited removal procedures and detained members of the families together during these expedited proceedings. If the government found these family members to have a credible fear of persecution, they would release the family from detention because it often takes years before immigration courts can offer asylee applicants a full and fair hearing on the merits of their claims.
118. Defendants in the Trump Administration are the first to have a uniform practice of forcibly separating all fit parents from their young children, refusing to reunify them thereafter until ordered by a federal court to do so, and then doubling down by coercing parents to waive their own and their children's rights to asylum and other relief.
DHS Advisory Council Members Resign in Protest of the Practice of Forced Separation 119. As a result of Defendants' unconstitutional actions, four members of the
Department of Homeland Security Advisory Council resigned on July 16, 2018 in protest of the forced separation of children from their parents, writing that "routinely taking children from migrant parents [i]s morally repugnant, counter-productive and ill-considered," and therefore
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"[w]e cannot tolerate association with the immigration policies of this administration, nor the
illusion that we are consulted on these matters." Exhibit 5, July 16, 2018 Letter from R. Danzig,
E. Holtzman, D. Martin, and M. Olsen to Sec. K. Nielsen.
120. Former Congresswoman Elizabeth Holtzman wrote to Secretary Nielsen in her
separate individual resignation letter:
Under your administration and that of Donald Trump's, DHS has been transformed into an agency that is making war on immigrants and refugees. . . . The final straw has been the separation of children from their parents at the Southwest border. This is child kidnapping, plain and simple. Seizing children from their parents in violation of the constitutional rights of both is bad enough (mentally harmful to the children and infinitely painful to both the parents and children), but doing so without creating proper records to enable family reunification shows utter depravity on the part of the government officials involved. Exhibit 6, July 16, 2018 Letter from Hon. E. Holtzman to Sec. K. Nielsen.
121. Professor David A. Martin wrote to Secretary Nielsen in his own resignation letter
about the "unjust policy of separating families at the border":
Now it has become clear that the policy was also executed with astounding casualness about precise tracking of family relationships – as though eventual reunification was deemed unlikely or at least unimportant, even for toddlers and preschoolers. . . . From the beginning, however, the administration has opted instead for gratuitously severe actions in the immigration arena . . . . Further, the family separation policy crystallized for many HSAC members profound doubts about the administration's commitment to the rule of law. 122. Exhibit 7, July 16, 2018 Letter from Prof. D. Martin to Sec. K. Nielsen.
Individual Plaintiffs' Allegations – K.O. and E.O., Jr.
123. On May 19, 2018, K.O., E.O., Jr., and their mother L.J. arrived in Texas on foot
after fleeing from their home country of Guatemala. The family fled the violence they had
experienced in Guatemala and were seeking asylum in the United States.
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124. At the time of their crossing, K.O. was nine years old and E.O., Jr. was seventeen years old.
125. The family walked alone for about five hours along the Rio Grande, without food or water and in fear of being robbed or attacked by a poisonous snake or other animal. They hoped that a CBP Agent would find them to allow them to apply for asylum.
126. Eventually a single CBP Agent stopped the family and told them to remove their jewelry, belts, and shoes. The CBP Agent made K.O. remove a small ring that she had received upon her Kindergarten graduation. The CBP Agent asked them if they had any money, telephones, or identification. L.J. explained that they only had identification.
127. The CBP Agent then drove the family in a truck for about thirty minutes. Immediately, K.O. and E.O., Jr. felt relieved, believing that help had arrived and they could finally rest. K.O. fell asleep.
128. The family was taken to a detention facility in McAllen, Texas. They were seated on a cement bench.
129. After a few minutes, CBP Agents called E.O., Jr. into an extremely small room with about fifty other children ranging in age from about fourteen to seventeen. When E.O., Jr. was taken from L.J., she had no idea that the Defendants intended to keep them separated.
130. There was not enough space in the room for E.O., Jr. to sit so he had to stand for almost seven hours. The air became so thick and heavy that some of the children kept calling for the CBP Agents to help by banging on the door. Every once in a while, the CBP Agents opened the door, which let some air in, and everyone felt momentary relief. More than once, the CBP Agents opened the door and screamed at the group of children in Spanish: "Shut up, you donkeys!"
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131. L.J. saw her son E.O., Jr. come out of the room once to be fingerprinted. The CBP Agents would not let E.O., Jr. talk to L.J. They were terrified. They did not know why the CBP Agents had separated them. They feared they would never see each other again.
132. About two minutes after taking E.O., Jr., CBP Agents took nine-year-old K.O. and her mother to another holding cell. About thirty other mothers were in that cell with their children. One mother had an infant that looked to be only two months old. The room was freezing cold, the only food was sandwiches for the children, and many of the children were crying the entire time. Mothers walked with their children on their shoulders and sang songs to them, hoping to help the children fall asleep.
133. K.O. felt hungry, cold, and afraid in that cell. L.J. could not do anything to help her.
134. About twelve to fourteen hours later, CBP Agents brought L.J. into a room with about ten other mothers. Their children were left alone in a cell. K.O. grabbed L.J. from behind and said, "Mommy, don't go!"
135. The CBP Agent had to pry K.O.'s hands off of L.J. and when he did that he yelled at K.O. in Spanish: "Dejala!" That means : "Let her go!" L.J. asked the agent why he was attacking K.O.
136. As the CBP Agent pulled K.O.'s hands off of L.J., he said to her in Spanish: "You're going to be deported to Guatemala and we're going to adopt your daughter."
137. K.O. was screaming. L.J. desperately called out to K.O., telling her: "I love you with all my heart! We are going to see each other again soon. Remember your father's phone number."
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138. E.O., Jr. could see this happening through the window of the room where he was being held. E.O., Jr. banged on the window to try to stop them from taking his sister, to no avail.
139. K.O.'s father, E.O., was living in Westborough, Massachusetts and L.J. thought he would be able to help K.O. even if L.J. could not. When he found out where they were, E.O. began trying to get his children released to him in Massachusetts.
140. On the day the children were taken from L.J. a CBP Agent or ICE Agent told E.O. that they intended to separate the children from L.J. Defendants had no legitimate interest in separating K.O. and E.O., Jr. from L.J. There was no evidence or even allegation of abuse, neglect, or unfitness or that L.J. was not acting in the best interests of her children. Defendants did not provide K.O., E.O., Jr., or L.J. with any notice or opportunity to be heard before forcibly separating them.
141. K.O. and E.O., Jr. were placed on a bus with no shoes. E.O., Jr. tried to hug his sister, but the CBP Agents or ICE Agents separated them immediately. The bus ride was about ten minutes long. The CBP Agents or ICE Agents then placed the children in a new detention facility with cells facing across from each other.
142. E.O., Jr. tried to talk to K.O. to tell her not worry and that she would be out of the cells soon. K.O. asked her brother: "What happened to Mommy?"
143. When E.O., Jr. tried to answer, a CBP Agent or ICE Agent yelled at him and instructed him not to talk to his own sister. Her question went unanswered.
144. K.O. and E.O., Jr. stayed at that facility for two days and two nights. The rooms were freezing. The only blankets they had were silver thermal blankets.
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145. Small children who appeared to be as young as one or two years old cried on the floor. The older children tried to take care of the young, crying children. Boys and girls were separated by something like a metal fence.
146. At one point, E.O., Jr. looked over at his sister K.O. and she was crying. E.O., Jr. put his hands together and put his head on his hands, pretending to sleep, to try to help soothe K.O. and stop her from crying. But E.O., Jr. felt so helpless that he too started crying.
147. When the children cried, some CBP Agents or ICE Agents insulted them in Spanish, including by shouting at them: "Shut up, you trash!"
148. Once, a CBP Agent or ICE Agent came up to E.O., Jr. and asked how old he was. When he replied that he was seventeen years old, the CBP Agent or ICE Agent said "you are lying" and kicked E.O., Jr. about ten times in the back.
149. The CBP Agents or ICE Agents woke K.O. up to take a shower by pulling her ponytail.
150. E.O., Jr. was removed from this detention facility first. He told the CBP Agents or ICE Agents that he had to wait for his sister. The CBP Agents or ICE Agents said that if he stayed he would "lose his opportunity." E.O., Jr. thought they meant that he would lose his opportunity to be reunited with his father, E.O. E.O., Jr. still refused to leave, unwilling to leave his sister alone. The next night, the CBP Agents or ICE Agents made E.O., Jr. bathe in cold water, change his clothes, and prepare to leave.
151. The CBP Agents or ICE Agents took both E.O., Jr. and K.O. to another facility. When E.O., Jr. asked where his mother was, the CBP Agents or ICE Agents told him they had deported his mother.
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152. E.O., Jr. and K.O. were placed on an airplane to Michigan, seated separately. They arrived at about 1:00 a.m. and they were told they were going to separate locations. E.O., Jr. asked them to allow him to stay with his sister, but CBP Agents, ICE Agents, or ORR Personnel told E.O., Jr. not to worry and assured him that they would bring K.O. back in the morning.
153. As soon as the siblings were separated, K.O. started to cry. She was taken to a foster family with three other children who had been forcibly separated from their parents at the border. There were two six-year-olds and an eight-year-old.
154. E.O., Jr. stayed in a facility with about eighteen other boys. He attended school in the morning and K.O. was able to see her brother at school. E.O., Jr. was told by ORR Personnel that getting out of the facility would be a terrible, long process.
155. K.O. and E.O., Jr. did not know where their mother was. It bothered E.O., Jr. so terribly that he could not sleep or eat.
156. About five days later, E.O., Jr. was able to call his father, E.O., and tell him where he was being held.
157. E.O., Jr. was told that he had to be vaccinated again, even though he had already been vaccinated, and he was given ten shots by a medical professional and ORR Personnel. K.O. was also vaccinated and was given nine shots. L.J. was not there to comfort her daughter during this process.
158. K.O. and E.O., Jr. were finally released and reunited with their father in Massachusetts on June 19, 2018.
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159. L.J. spent about eight days in the facility where her children were taken from her. She was not allowed to call her husband, E.O., for about nine days. Then she was taken to the T. Don Hutto Residential Center in Taylor, Texas, where she was detained for several weeks.
160. L.J. finally met with an asylum officer in mid-June 2018 who found that L.J. had a credible fear of persecution if she were forced to return to Guatemala.
161. L.J. was finally released on June 26, 2018 and reunited with her family in Massachusetts after that. They had been separated for about five weeks at that point. Needless to say, the family was relieved and joyful.
162. But the trauma caused by this forcible separation endures. The horrible, painful memories still torment K.O., E.O., Jr., L.J. and E.O. K.O. wakes up in the middle of the night, crying, wondering if that mean person would pull her hair again. Whenever L.J. leaves a room, K.O. follows her mother and fears that she will abandon her again.
163. The guilt that L.J. feels as a mother is overwhelming. She feels as if she was unable to protect her children. The trauma that K.O., E.O., Jr., L.J., and E.O. experienced was life altering and it will continue to affect their mental and emotional well-being for years to come.
164. The ordeal that K.O. and E.O., Jr. endured is typical of the experiences suffered by the putative class members.
Individual Plaintiff's Allegations – C.J. 165. F.C. and his eleven-year-old son, C.J. entered the United States in El Paso, Texas on June 17, 2018 seeking asylum in this country. They came to the United States for asylum because organized crime members, who worked in concert with the police in Guatemala,
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extorted F.C. for money, threatened to kill F.C. and his family, and left them fearing for their lives.
166. When they crossed the United States border, F.C. saw a CBP vehicle and walked towards it. F.C. was holding C.J.'s hand. The CBP Agents handcuffed F.C. and both he and C.J. were driven to a detention center.
167. When F.C. and C.J. arrived at the detention center, CBP Agents told F.C. that he would be separated from C.J. F.C. felt "devastated" and "destroyed" upon hearing that CBP Agents planned to separate his son from him. F.C. spent two days with C.J. trying to be brave for his son. Internally, F.C. kept thinking that despite his efforts, his son was going to be kidnapped. C.J. cried a lot. F.C. tried to calm him down and told him that F.C. would ask the CBP Agents to let them stay together.
168. The detention facility was very cold. The air conditioner was on the highest setting at all times. F.C. and his son slept on the floor and were given one aluminum blanket to share. F.C. stayed up trying to cover C.J. with his arms. C.J. shivered and constantly complained about the cold.
169. C.J. also complained of hunger. Both days F.C. and C.J. were given one burrito to share, twice a day. F.C. asked for more food to share with C.J. The CBP Agents denied them additional food, saying: "You're not here to get fat." When F.C. asked for water they told him to use the sink. This was difficult because there were approximately fifteen people, including six children, and one bathroom.
170. On June 20, 2018, the CBP Agents woke up F.C. and C.J. in the middle of the night and took them to a processing area. They told F.C. that C.J. would stay there while F.C. went to court. The CBP Agents told F.C. that he would be back after court. They told C.J. they
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would be putting him in another room until F.C. returned. F.C. assumed this would take a very short period of time, and F.C. would soon see C.J.
171. Instead, F.C. did not see his son again until July 26, 2018—36 days later. 172. The CBP Agents handcuffed F.C., took him away, and never returned him to the detention facility where he was held with C.J. F.C. was very worried about C.J. 173. F.C. asked anyone who would listen: "Where is C.J.?" "Where has he been taken?" "How do I get in touch with him?" 174. F.C. knew how scared C.J. must be and F.C. felt heartbroken that he had not protected his son, especially because that was all F.C. had wanted to do by coming to the United States. 175. When F.C. went to court he was told that he was there because he had committed the federal crime of coming into the country illegally. The judge asked F.C. if he wanted to leave C.J. in the United States or take C.J. with him if deported. F.C. felt sheer terror at being deported without C.J. F.C. told the judge that no matter what they decided to do, F.C. wanted C.J. to be with him. 176. F.C. was moved to multiple detention facilities. At every detention center F.C. asked about C.J. F.C. persisted until an employee from one of the detention centers finally arranged for him to speak to C.J. 177. When F.C. finally spoke to C.J. it was only for five minutes and C.J. cried very hard the entire time. F.C. told C.J. not to think about the situation and to play and make new friends. The phone call was heartbreaking because C.J. wanted to know when he would see his father again, but F.C. did not have an answer.
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178. On that same day, an employee at the facility asked again if F.C. would authorize C.J. to stay behind if F.C. were to be deported. F.C. said no.
179. At some point the CBP Agents turned F.C. over to ICE Agents. F.C. was very afraid that the ICE Agents would deport C.J. without F.C. F.C. was worried that C.J. would grow up alone with no family. F.C. constantly worried about how C.J. was being treated and whether he was safe.
180. C.J. was held at a facility with many other children similarly separated from their parents. This separation deeply affected C.J.
181. While at the facility, another child hit C.J. in the eye. After C.J. told staff about the assault, he noticed that the child who assaulted him went to see a psychologist or mental health doctor and then C.J. never saw the child again. That incident made C.J. feel deep fear, because he thought that if he made a mistake, he might disappear too.
182. At the facility, C.J. was sad and cried a lot because he missed his father. C.J. kept asking the staff when he would see his father again. Although C.J. was told that it would be "soon," the days went by without any change. Eventually, C.J. came to believe he would never see his father again and would be at the facility for many years.
183. C.J. and F.C. were finally reunited on July 26, 2018. While the relief and joy they both felt at seeing each other again was overwhelming, the harm that Defendants caused to C.J. during the time that he was separated from his father and in Defendants' custody can never truly be remedied.
184. F.C. tries to assure C.J. that he will be OK, that he is safe, and that F.C. will never leave him again.
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185. But C.J. now wakes up with nightmares, something that never happened before Defendants forcibly separated him from his father. Sometimes, C.J.'s nightmares are so bad that he falls out of bed.
186. Defendants' forcible separation of C.J. from his father has caused extreme emotional and psychological harm. The trauma that both C.J. and F.C. experienced was life altering and it will continue to affect their mental and emotional well-being for years to come.
187. The ordeal that C.J. endured is typical of the experiences suffered by the putative class members.
Class Allegations 188. This action is properly maintained as a class action under Fed. R. Civ. P. 23(a) and 23(b)(1) and 23(b)(3). 189. Plaintiffs seek to represent a nationwide class consisting of all minor children nationwide who enter or have entered the United States at or between designated ports of entry and who have been or will be separated from a parent or parents by DHS or its sub-agencies (CBP, ICE, or USCIS) and detained in ORR custody, ORR foster care, or CBP or ICE custody without a demonstration in a hearing that the parent is unfit or presents a danger to the child. 190. The class is so numerous that joinder of all members is impracticable. While the exact number of class members is unknown at this time and can only be ascertained through appropriate discovery, based on information disclosed in another pending case, the class consists of well over 2,500 children. See Ms. L. v. ICE, No. 18-CV -0428-DMS-MDD, Joint Status Report (July 26, 2018) (Doc. No. 159). 191. The members of the class are readily ascertainable through Defendants' and government records.
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192. There are questions of law or fact common to the class. The class members have all been subjected to the Defendants' practice of forcibly separating migrant children from their parents for no legitimate reason. All class members have been subjected to that practice without an adequate hearing regarding separation. The common questions of law include whether Defendants' forcible family separation violates the class members' procedural and substantive due process rights and the equal protection guarantee under the Due Process Clause.
193. Plaintiffs' claims or defenses are typical of the claims or defenses of the Class. 194. Plaintiffs have no interests that are adverse to or which irreconcilably conflict with the other members of the class. 195. Plaintiffs are represented by counsel experienced in class action litigation and, in particular, in litigating civil rights claims involving constitutional and statutory violations, tort claims, and immigration matters. Plaintiffs' counsel has adequate resources to commit to representing the class. 196. Plaintiffs will therefore fairly and adequately protect the interests of the class. 197. This action is properly maintained as a class action under Fed. R. Civ. P. 23(b)(1) because prosecuting separate actions by or against individual class members would create a risk of: (a) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standard of conduct for the party opposing the class; or (b) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests. 198. This action is also properly maintained as a class action under Fed. R. Civ. P. 23(b)(3) because the questions of law or fact common to the members of the class predominate
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over any questions affecting only individual members and a class action is superior to other available methods for the fair and efficient adjudication of this controversy.
COUNT I Violation of Substantive Due Process – Right to Family Integrity 199. Plaintiffs incorporate all of the preceding allegations in this Complaint as if fully set forth here. 200. At all relevant times, all Defendants were acting under color of federal law. 201. The Due Process Clause of the Fifth Amendment applies to all "persons" on United States soil and therefore applies to Plaintiffs and to all proposed class members. 202. Plaintiffs and all class members have a liberty interest under the Due Process Clause in remaining together as a family and in their parents' care and comfort. 203. The forcible separation of the class members from their parents violates substantive due process because it furthers no legitimate purpose, much less a compelling governmental interest. 204. The Defendants in this action have adopted, implemented, enforced, condoned, sanctioned, acquiesced to, and encouraged a pattern, practice, or custom of violating the clearly established due process rights of the class members by forcibly separating young children from their parents without justification. 205. Defendants' conduct shocks the conscience and demonstrates their deliberate indifference to the violation of the class members' constitutional right to due process. 206. As a direct and proximate result of the Defendants' Due Process violations, the class members have suffered harm. 207. Defendants' conduct was intentional, wanton, malicious, reckless, callously indifferent, and oppressive, thus entitling the class members to punitive damages.
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COUNT II Violation of Procedural Due Process 208. Plaintiffs incorporate all of the preceding allegations in this Complaint as if fully set forth here. 209. At all relevant times, all Defendants were acting under color of federal law. 210. The Due Process Clause of the Fifth Amendment applies to all "persons" on United States soil and therefore applies to Plaintiffs and to all proposed class members. 211. The Due Process Clause of the Fifth Amendment prohibits deprivations of life, liberty, or property without constitutionally adequate procedural safeguards and protects the right to a fair hearing. 212. The forcible separation of the class members from their parents violates a fundamental liberty interest with no notice or opportunity to be heard. 213. The Defendants in this action have adopted, implemented, enforced, condoned, sanctioned, acquiesced to, and encouraged a pattern, practice, or custom of violating the clearly established due process rights of the class members by forcibly separating young children from their parents without due process of law. 214. Defendants' conduct shocks the conscience and demonstrates their deliberate indifference to the violation of the class members' constitutional right to due process. 215. As a direct and proximate result of the Defendants' Due Process violations, the class members have suffered harm. 216. Defendants' conduct was intentional, wanton, malicious, reckless, callously indifferent, and oppressive, thus entitling the class members to punitive damages.
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COUNT III Violation of the Fifth Amendment's Equal Protection Guarantee 217. Plaintiffs incorporate all of the preceding allegations in this Complaint as if fully set forth here. 218. At all relevant times, all Defendants were acting under color of federal law. 219. The Due Process Clause of the Fifth Amendment applies to all "persons" on United States soil and therefore applies to Plaintiffs and to all proposed class members. 220. The Fifth Amendment contains an implicit guarantee of equal protection that forbids any official action that intentionally discriminates on the basis of race, ethnicity, or national origin. 221. Defendants' forcible separation of immigrant children and parents, particularly from Central and South America, arriving at the Southwestern border is unconstitutional because it burdens a fundamental right and was motivated, at least in part, by the Defendants' intentional discrimination based on race, ethnicity, or national origin. This intentional discrimination includes bias against immigrants perceived to come from Central or South America. 222. Defendants' forcible separation of children and parents, particularly from Central and South America, arriving at the Southwestern border is unconstitutional because it disparately impacts immigrants from Latin America arriving at the border and is motivated by animus and a desire to harm this particular group. 223. The forcible separation of children from their parents is not narrowly tailored to achieve a compelling governmental interest. 224. Alternatively, the discriminatory terms and application of the family separation practice are arbitrary and bear no rational relationship to a legitimate federal interest.
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225. Defendants' conduct shocks the conscience and demonstrates their deliberate indifference to the violation of the class members' constitutional right to equal protection of the laws.
226. As a direct and proximate result of the Defendants' Equal Protection violations, the class members have suffered harm.
227. Defendants' conduct was intentional, wanton, malicious, reckless, callously indifferent, and oppressive, thus entitling the class members to punitive damages.
COUNT IV Violation of Substantive Due Process – Punishment of Civil Detainees 228. Plaintiffs incorporate all of the preceding allegations in this Complaint as if fully set forth here. 229. At all relevant times, all Defendants were acting under color of federal law. 230. The Due Process Clause of the Fifth Amendment applies to all "persons" on United States soil and therefore applies to Plaintiffs and to all proposed class members. 231. Plaintiffs and all class members have a liberty interest under the Due Process Clause in remaining free from punitive conditions during their civil immigration detention. 232. The Defendants intended to punish the class members during their detention by forcibly separating the children from their parents, purporting to maintain the separation indefinitely, failing to provide meaningful information to parents or children about one another's location and well-being, subjecting the children to appalling and abusive conditions, and preventing them from reliable and ready access to means of communicating with one another. 233. Regardless of Defendants' intent, the conduct described above is patently excessive in relation to any legitimate objective.
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234. Defendants' conduct violates substantive due process because it furthers no legitimate purpose, much less a compelling governmental interest.
235. The Defendants in this action have adopted, implemented, enforced, condoned, sanctioned, acquiesced to, and encouraged a pattern, practice, or custom of violating the clearly established due process rights of the class members through the unlawful conduct described above.
236. Defendants' conduct shocks the conscience and demonstrates their deliberate indifference to the violation of the class members' constitutional right to due process.
237. As a direct and proximate result of the Defendants' Due Process violations, the class members have suffered harm.
238. Defendants' conduct was intentional, wanton, malicious, reckless, callously indifferent, and oppressive, thus entitling the class members to punitive damages.
COUNT V Violation Due Process – Coerced Waiver of Asylum and Other Immigration Claims
239. Plaintiffs incorporate all of the preceding allegations in this Complaint as if fully set forth here.
240. At all relevant times, all Defendants were acting under color of federal law. 241. The Due Process Clause of the Fifth Amendment applies to all "persons" on United States soil and therefore applies to Plaintiffs and to all proposed class members. 242. Plaintiffs and all class members have an interest under the Due Process Clause in pursuing asylum and other potential immigration claims without being coerced to waive them. 243. Defendants' coercive practice of conditioning reunification of children with their parents upon the parents' waiver of their own and their children's right to asylum and other
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immigration relief violates the Due Process Clause because these waivers were not knowing, intelligent, or voluntary.
244. Defendants' conduct violates due process because it furthers no legitimate purpose, much less a compelling governmental interest.
245. The Defendants in this action have adopted, implemented, enforced, condoned, sanctioned, acquiesced to, and encouraged a pattern, practice, or custom of violating the clearly established due process rights of the class members through the unlawful conduct described above.
246. Defendants' conduct shocks the conscience and demonstrates their deliberate indifference to the violation of the class members' constitutional right to due process.
247. As a direct and proximate result of the Defendants' Due Process violations, the class members have suffered harm.
248. Defendants' conduct was intentional, wanton, malicious, reckless, callously indifferent, and oppressive, thus entitling the class members to punitive damages.
COUNT VI Violation of Substantive Due Process Failure to Provide Adequate Mental Health Services 249. Plaintiffs incorporate all of the preceding allegations in this Complaint as if fully set forth here. 250. At all relevant times, all Defendants were acting under color of federal law. 251. The Due Process Clause of the Fifth Amendment applies to all "persons" on United States soil and therefore applies to Plaintiffs and to all proposed class members.
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252. Plaintiffs and all class members have a liberty interest under the Due Process Clause in receiving adequate medical care, including mental health care, while in the custody of the Defendants.
253. The Defendants' failure to provide adequate and necessary mental health care to the class members after forcibly separating them from their parents violates substantive due process because it furthers no legitimate purpose, much less a compelling governmental interest.
254. Moreover Defendants were aware of the severe harm that their conduct caused to the mental health of the class members, yet they failed to provide adequate and necessary treatment to them.
255. Defendants' conduct shocks the conscience and demonstrates their deliberate indifference to the violation of the class members' constitutional right to due process.
256. The Defendants in this action have adopted, implemented, enforced, condoned, sanctioned, acquiesced to, and encouraged a pattern, practice, or custom of violating the clearly established due process rights of the class members by failing to provide adequate mental health care to the class members after forcible separation from their parents.
257. As a direct and proximate result of the Defendants' Due Process violations, the class members have suffered harm.
258. Defendants' conduct was intentional, wanton, malicious, reckless, callously indifferent, and oppressive, thus entitling the class members to punitive damages.
COUNT VII Conspiracy to Interfere with Civil Rights in Violation of 42 U.S.C. § 1985(3) 259. Plaintiffs incorporate all of the preceding allegations in this Complaint as if fully set forth here. 260. The Defendants are located in States or Territories of the United States.
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261. The Defendants are "persons" for the purposes of 42 U.S.C. § 1985(3). 262. Two or more of the Defendants conspired or furthered a conspiracy to deprive Plaintiffs and class members of equal protection of the laws. 263. The Defendants furthered their conspiracy by, at various times, creating, adopting, implementing, enforcing, condoning, sanctioning, acquiescing to, and encouraging a pattern, practice, or custom of taking children and parents, particularly those from Central and South America, arriving at or between designated ports of entry to the United States into custody and forcibly separating them. 264. The Plaintiffs and the class members include Central and South American children, sharing characteristics of race, ethnicity, and/or national origin, who arrived at the United States border with their parents and were forcibly separated from them by Defendants. 265. The Defendants were motivated to discriminate against the Plaintiffs and other class members due to their race, ethnicity, and/or national origin. 266. As a direct and proximate result of the Defendants' unlawful conspiracy, the Plaintiffs and other class members have suffered pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses and have been deprived of their constitutionally protected rights to substantive and procedural due process and equal protection. 267. Defendants' conduct was intentional, wanton, malicious, reckless, callously indifferent, and oppressive, thus entitling the Plaintiffs and class members to punitive damages. 268. The Plaintiffs and class members are entitled to recover costs, reasonable attorney's fees, and expert fees under 42 U.S.C. § 1988.
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COUNT VIII Refusal or Neglect to Prevent or Aid in Preventing Conspiracy to Interfere with Civil Rights in Violation of 42 U.S.C. § 1986 269. The Plaintiffs incorporate all of the preceding allegations in this Complaint as if fully set forth here. 270. The Defendants are "persons" for the purposes of 42 U.S.C. § 1986. 271. The Defendants possessed knowledge of a conspiracy to injure and interfere with the constitutionally-protected rights of the Plaintiffs and class members in violation of 42 U.S.C. § 1985. 272. The Defendants had power to prevent or aid in the prevention of such a conspiracy and neglected or refused to do so. 273. As a direct and proximate result of the unlawful conspiracy which the Defendants knew of but neglected or refused to prevent, the Plaintiffs and class members have suffered pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses. 274. The nature of the relief sought and the harm suffered by the Plaintiffs meets the jurisdictional requirements and thresholds of this Court. 275. Defendants' conduct was intentional, wanton, malicious, reckless, callously indifferent, and oppressive, thus entitling the Plaintiffs and class members to punitive damages. 276. The Plaintiffs and class members are entitled to recover costs, reasonable attorney's fees, and expert fees under 42 U.S.C. § 1988. WHEREFORE, Plaintiffs K.O. and E.O., Jr., by and through their parents and next friends, E.O. and L.J, and C.J, by and through his father and next friend F.C., on behalf of
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themselves and all others similarly situated, respectfully request that the Court grant the following relief:
A. Enter judgment declaring this action to be a class action under Fed. R. Civ. P. 23 and certifying Plaintiffs K.O. and E.O., Jr., by and through their parents and next friends, E.O. and L.J, and C.J, by and through his father and next friend F.C., as the class representatives and Plaintiffs' counsel as class counsel;
B. Enter judgment in favor of Plaintiffs and the class, and against Defendants, on all counts of the Complaint;
C. Enter an order requiring the Defendants to establish a fund in an amount to be determined at trial for the mental health treatment and ongoing mental health monitoring of the class members;
D. Award to Plaintiffs and the class all damages in an amount to be determined at trial sufficient to compensate the class for their injuries, including, but not limited to, emotional pain and suffering, mental anguish, embarrassment, and humiliation;
E. Award to Plaintiffs and the class punitive or exemplary damages as permitted by law;
F. Award to Plaintiffs and the class their attorneys' fees, costs, and interest as permitted by law; and
G. Grant such further and other relief as may be just and proper.
PLAINTIFFS ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED
DEMAND A TRIAL BY JURY ON ALL CLAIMS AND ISSUES SO TRIABLE
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Respectfully submitted,
K.O. and E.O., Jr., by and through their parents and next friends, E.O. and L.J.; and C.J, by and through his father and next friend F.C.; each individually and on behalf of all others similarly situated, on behalf of themselves and all others similarly situated,
By their attorneys,
Howard M. Cooper Howard M. Cooper (BBO # 543842) Joseph M. Cacace (BBO # 672298) TODD & WELD LLP One Federal Street, 27th Floor Boston, MA 02110 (617) 720-2626 hcooper@toddweld.com jcacace@toddweld.com
Susan B. Church (BBO # 639306) Derege Demissie (BBO # 637544) Heather Yountz (BBO # 669770) Brittanie Allen (BBO # 697561) DEMISSIE & CHURCH 929 Massachusetts Avenue, Suite 01 Cambridge, MA 02139 (617) 319-2399 sbc@demissiechurch.com dd@demissiechurch.com
Jeff Goldman (BBO # 548056) Jesse M. Bless (BBO # 660713) THE LAW OFFICES OF JEFF GOLDMAN LLP 125 Washington Street, Ste. 204 Salem, MA 01970 (781) 704-3897 Jeff@@jeffgoldmanimmigration.com Jesse@jeffgoldmanimmigration.com
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David A. Vicinanzo (pro hac vice to be requested) Nathan P. Warecki (BBO# 687547) Lauren Maynard (BBO# 698742) NIXON PEABODY LLP 100 Summer Street Boston, MA 02110 (617) 345-1000 dvicinanzo@nixonpeabody.com nwarecki@nixonpeabody.com lmaynard@nixonpeabody.com Iván Espinoza-Madrigal (pro hac vice to be requested) Oren N. Nimni (BBO # 691821) Lawyers' Committee for Civil Rights and Economic Justice 61 Batterymarch Street, 5th Floor Boston, MA 02110 (617) 988-0624 iespinoza@lawyerscom.org onimni@lawyerscom.org
Dated: September 5, 2018
4845-1239-5886, v. 14
55

 
 Case 4:18-cv-40149-TSH Document 45 Filed 01/29/19 Page 1 of 61

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

______________________________________________

)

K.O. and E.O., Jr., by and through their parents and next )

friends, E.O. and L.J.; and C.J, by and through his father )

and next friend F.C.; each individually and on behalf of )

all others similarly situated,

)

)

CIVIL ACTION NO.

Plaintiffs,

)

4:18-CV-40149-TSH

)

v.

)

)

JEFFERSON BEAUREGARD SESSIONS III, Former )

Attorney General of the United States; KIRSTJEN

)

NIELSEN, Secretary of the United States Department )

of Homeland Security (DHS); JOHN F. KELLY, White )

House Chief of Staff; STEPHEN MILLER, Senior

)

Advisor to the President; GENE HAMILTON,

)

Counselor to the Attorney General Sessions; THOMAS )

HOMAN, former Director of United States

)

Immigration and Customers Enforcement (ICE);

)

RONALD D. VITIELLO, Acting Director of ICE; L. )

FRANCIS CISSNA, Director of United States

)

Citizenship and Immigration Services (USCIS);

)

KEVIN K. MCALEENAN, Commissioner of United )

States Customs and Border Protection (CBP); ALEX )

AZAR, Secretary of the United States Department of )

Health and Human Services (HHS); SCOTT LLOYD, )

Director of the United States Office of Refugee

)

Resettlement (ORR); JOHN DOE ICE AGENTS;

)

JOHN DOE CBP AGENTS; and JOHN DOE ORR

)

PERSONNEL,

)

)

Defendants.

)

_______________________________________________ )

FIRST AMENDED CLASS ACTION COMPLAINT AND JURY DEMAND Introduction
1. The United States of America was founded on the bedrock principle that our nation is a beacon of hope to people everywhere seeking refuge from poverty, persecution, and violence. Emma Lazarus's sonnet on the Statue of Liberty famously rings out: "Give me your

Case 4:18-cv-40149-TSH Document 45 Filed 01/29/19 Page 2 of 61
tired, your poor, your huddled masses yearning to breathe free." Defendants have betrayed this fundamental principle and the constitutional rights that protect everyone within the territory of the United States regardless of citizenship. In doing so, they have harmed those most vulnerable: children. Through this lawsuit, Plaintiffs, on behalf of a class of similarly situated children, seek to hold Defendants accountable for their actions in accordance with the rule of law.
2. Plaintiffs seek damages and the establishment of a fund for the mental health treatment of all class members to remedy the harm caused by the Defendants': (i) forcible separation of thousands of children from their parents in immigration detention with no legal justification and without their consent; (ii) seizing those children and separating them from their parents without any legal basis for unreasonable lengths of time; and (iii) inflicting emotional and psychological harm to deter immigration, particularly from Central and South American countries. Many of these children and their parents, including the Plaintiffs in this case, fled their native countries to lawfully seek asylum upon arriving in the United States.
3. Defendants forcibly separated these young children from their parents without any allegations of abuse, neglect, or parental unfitness, in an abusive and intolerable manner, without legal proceedings or hearings of any kind. Once separated, Defendants withheld the children from the care and custody of their parents even though all were held in immigration detention. Defendants detained these young, terrified children in facilities often thousands of miles from their parents.
4. Defendants chose to keep immigrant children from the care and custody of their parents and, even where both child and parent remained in immigration detention, refused opportunities to hold them together in their existing immigration family detention centers.
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5. Defendants’ unilateral conduct created a crisis that victimized non-citizen children. First, they referred parents for criminal prosecution for the misdemeanor offense of illegal reentry under 8 U.S.C. § 1325(a), which required the parents to be separated from their children and transferred into detention. Second, Defendants unlawfully and unnecessarily categorized the children, who arrived and were held in immigration detention initially with their parents, as “unaccompanied,” utilized horrific methods to effectuate their separate, and sent them to other immigration detention facilities.
6. Forced separation of children from their parents causes severe and often permanent emotional and psychological harm, particularly when those children are already traumatized from fleeing violence and persecution in their home countries.
7. Defendants’ continued separation and unreasonable refusal to reunite these children with their parents, once the parents returned to immigration detention or were released from custody, prolonged and significantly increased the trauma visited by the Defendants upon these children.
8. Defendants unconscionable seizure of the children and withholding them from their parents for an unreasonable duration, without justification, violated Plaintiffs’ rights under the Fourth Amendment to the United States Constitution.
9. Defendants’ also violated the fundamental right to family integrity protected by the Due Process Clause of the Fifth Amendment to the United States Constitution by forcibly taking young children from their parents in immigration detention with no legal justification and without a hearing, and later coercing parents into waiving their children's rights to pursue asylum, withholding of removal, and other statutory claims available to migrant children and their families. Defendants have also violated the Due Process Clause by subjecting children to
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punitive conditions while they were being held in civil immigration detention and failing to provide them adequate and necessary mental health treatment. In addition, Defendants have violated the Equal Protection guarantee of the Fifth Amendment by discriminating against immigrant children, particularly those from Central and South American countries, on the basis of race, ethnicity, or national origin.
10. Moreover, based on Defendants' conduct, the United States government is liable for the torts of intentional and negligent infliction of emotional distress, false imprisonment, false arrest, assault and battery, and for the loss of consortium that the minor Plaintiffs have suffered as a result of the harm caused to their parents by Defendants' conduct. Plaintiffs have presented tort claims to the appropriate federal agencies under the Federal Tort Claims Act. Plaintiffs reserve the right to seek leave to amend this First Amended Complaint in due course should Plaintiffs' claims be finally denied by any of those agencies. See 28 U.S.C. § 2675.
Parties 11. Plaintiff K.O. brings this lawsuit through her parents and next friends, E.O. and L.J., as a result of her incapacity due to her minor status. 12. Plaintiff E.O., Jr. is K.O.'s brother and he brings this lawsuit through his parents and next friends, E.O. and L.J., as a result of his incapacity due to his minor status. 13. K.O., E.O., Jr., and their parents all reside in Westborough, Worcester County, Massachusetts. They are all seeking asylum in the United States and fleeing violence and persecution in Guatemala. 14. Plaintiff C.J. brings this lawsuit through his father and next friend, F.C., as a result of his incapacity due to his minor status.
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15. C.J. and F.C. reside in Westborough, Worcester County, Massachusetts. They are seeking asylum in the United States and fleeing violence and persecution in Guatemala.
16. Plaintiffs bring this action on their own behalf and on behalf of all others similarly situated nationwide.
17. Defendant Jefferson Beauregard Sessions III served as the Attorney General of the United States from February 9, 2017 to November 7, 2018, and he is sued in his individual capacity. General Sessions had responsibility for the administration of the immigration laws under 8 U.S.C. § 1103, oversaw the Executive Office of Immigration Review, was empowered to grant asylum or other relief, and was a legal custodian of Plaintiffs when they were held in detention. Defendant Sessions had responsibility for implementing United States immigration laws, policies, and practices, including practices related to family separation and family detention at the United States Southwestern border.
18. Defendant Kirstjen Nielsen is the Secretary of DHS and is sued in her individual capacity. Secretary Nielsen directs each of the component agencies within DHS, including ICE, CBP, and USCIS. Defendant Nielsen has responsibility for the administration of the immigration laws under 8 U.S.C. § 1103, is empowered to grant asylum or other relief, and was a legal custodian of Plaintiffs when they were held in immigration detention. Defendant Nielsen is responsible for implementing United States immigration laws, policies, and practices, including practices related to family separation and family detention at the United States Southwestern border.
19. Defendant John F. Kelly was the White House Chief of Staff from July 31, 2017 to January 2, 2019, and he is sued in his individual capacity. Kelly served as the Secretary of DHS from January 20, 2017 through July 31, 2017. In that role, Secretary Kelly directed each of
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the component agencies of DHS, including ICE, CBP, and USCIS, had responsibility for the administration of the immigration laws under 8 U.S.C. § 1103, and was empowered to grant asylum or other relief. Defendant Kelly was responsible for implementing United States immigration laws, policies, and practices, including practices related to family separation and family detention at the United States Southwestern border. Kelly continued to have an important role in the development, adoption, and implementation of the family separation practice in his role as White House Chief of Staff.
20. Defendant Stephen Miller is a Senior Advisor to the President of the United States and is sued in his individual capacity. Mr. Miller is widely reported to have been a driving force behind the Defendants' forcible separation of migrant families at the Southwestern border.
21. Defendant Gene Hamilton is a Counselor to the Attorney General and is sued in his individual capacity. Mr. Hamilton is widely reported to have been closely involved in promoting the Defendants' forcible separation of migrant families at the Southwestern border.
22. Defendant Thomas Homan served as the Director of ICE from January 30, 2017 through his retirement on June 29, 2018, and he is sued in his individual capacity. In his role as Director of ICE, Mr. Homan had responsibility for enforcing federal immigration law including along the Southwestern border.
23. Defendant Ronald D. Vitiello is currently the Acting Director of ICE, an office he assumed on June 30, 2018, and is sued in his individual capacity. Before serving as the Acting Director of ICE, Vitiello was the Acting Deputy Commissioner of CBP from April 25, 2017 through June 29, 2018. In his role as Acting Director of ICE, Mr. Homan has responsibility for enforcing federal immigration law including along the Southwestern border. In his role as
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Acting Deputy Commissioner of CBP, Mr. Vitiello had responsibility for processing and detaining noncitizens apprehended near the United States border.
24. Defendant L. Francis Cissna is the Director of USCIS and is sued in his individual capacity. In his role as Director of USCIS, Cissna is responsible for processing immigration and naturalization applications and, through its Asylum Officers, conducts interviews of certain individuals apprehended at the border to determine whether they have a credible fear of persecution and should be permitted to apply for asylum.
25. Defendant Kevin K. McAleenan is the Commissioner of CBP and is sued in his individual capacity. Commissioner McAleenan is responsible for the initial processing and detention of noncitizens who are apprehended near the United States border.
26. Defendant Alex Azar is the Secretary of HHS and is sued in his individual capacity. Secretary Azar is responsible for "unaccompanied" noncitizen children in his role as Secretary of HHS.
27. Defendant Scott Lloyd is the Director of ORR and is sued in his individual capacity. Director Lloyd is responsible for providing care and placement for "unaccompanied" noncitizen children in his role as Director of ORR, which is a component of HHS.
28. Defendants John Doe ICE Agents are sued in their individual capacities. Defendants were federal law enforcement agents employed by ICE and DHS whose identities are at this time unknown to Plaintiffs. The ICE Agents were empowered by law and practice to execute searches, make arrests for violations of federal law, and make or enforce custodial determinations with regard to the Plaintiffs, which resulted in a prolonged separation from their parents while in immigration detention. When and if the identities of Defendants John Doe ICE
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Agents become known, Plaintiff may further amend this First Amended Complaint to add said ICE Agents as named Defendants.
29. Defendants John Doe CBP Agents are sued in their individual capacities. Defendants were federal law enforcement agents employed by CBP and DHS whose identities are at this time unknown to Plaintiffs. The CBP Agents were empowered by law and practice to execute searches, make arrests for violations of federal law, and make or enforce custodial determinations with regard to the Plaintiffs, which resulted in a prolonged separation from their parents while in immigration detention. When and if the identities of Defendants John Doe CBP Agents become known to Plaintiffs, Plaintiffs may further amend this First Amended Complaint to add said CBP Agents as named Defendants.
30. Defendants John Doe ORR Personnel are sued in their individual capacities. Defendants were either federal employees employed by ORR and HHS or employees of entities with which ORR and HHS contracted to provide services and whose identities are at this time unknown to Plaintiffs. The ORR Personnel were empowered by law and practice to make or enforce custodial determinations with regard to Plaintiffs, which resulted in a prolonged separation from their parents while in immigration detention. When and if the identities of Defendants John Doe ORR Personnel become known to Plaintiffs, Plaintiffs may further amend this First Amended Complaint to add said ORR Personnel as named Defendants.
31. At all relevant times, the Defendants have acted under color of federal law in the course and scope of their duties and functions as agents, employees, and officers of the United States in engaging in the conduct described in this Amended Complaint.
32. At all relevant times, the Defendants each violated clearly established law, which a reasonable person would have known, including the class members' statutory rights, their right
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to be free from unreasonable seizure, their procedural and substantive due process rights, and their right to equal protection of the laws.
Jurisdiction and Venue 33. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 (federal question) and1 1343(a) (actions to recover damages or equitable relief under federal civil rights laws). 34. This Court has personal jurisdiction over all Defendants under 28 U.S.C. § 1391(e), and Fed. R. Civ. P. 4(k)(1)(C); in that they are all subject to nationwide service of process within the United States, such process has actually been served upon them, and, owing to the Defendants’ contacts with the United States, this Court’s exercise of personal jurisdiction over each of them would not violate due process under either the Fifth or Fourteenth Amendments to the United States Constitution. 35. Alternatively, this Court has personal jurisdiction over all Defendants pursuant to the Massachusetts long-arm statute, M.G.L. c. 223A, § 3(d), because Plaintiffs' claims arise from Defendants having caused tortious injury in Massachusetts by an act or omission outside Massachusetts, and each Defendant regularly does or solicits business or engages in a persistent course of conduct in Massachusetts. To the extent any of the Defendants disputes either the applicability of the Massachusetts long-arm statute to the Court’s exercise of personal jurisdiction, or argues that such jurisdiction would offend due process under the Fourteenth Amendment to the United States Constitution, Plaintiffs reserve their right to seek jurisdictional

1

This Court will also be armed with subject matter jurisdiction if and when the federal

agencies served with claims under the Federal Tort Claims Act deny or delay in the adjudication

of those claims and Plaintiffs’ move to further amend this First Amended Complaint. 28 U.S.C.

§§ 1346, 2675.

9

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discovery and assert other bases for jurisdiction under M.G.L. c. 223A, § 3 upon review of the Defendants’ responses thereto.
36. Venue is proper in this District under 28 U.S.C. § 1391(b)(3), because the Defendants are subject to personal jurisdiction in this District.
Facts Legal Framework Under Federal Immigration Law 37. Pursuant to Section 208(a)(1) of the Immigration and Nationality Act ("INA"), "[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters)" may generally apply for asylum "irrespective of such alien's status." See 8 U.S.C. § 1158(a)(1). 2 The INA and its accompanying regulations establish procedures for the adjudication of asylum claims. Id; see also INA § 235(b), 8 U.S.C. § 1225(b); 8 C.F.R. §§ 208.1-208.31. 38. Even individuals who initially fall within the INA's "expedited removal" procedures, meaning they would bypass formal removal proceedings, are entitled to pursue asylum once the person indicates an intention to apply for asylum and demonstrates a credible fear of persecution at an interview before an asylum officer. 8 U.S.C. §§ 1225(b)(1)(A)(i), 1225(b)(1)(B); 8 C.F.R. §§ 235.1-235.13. 39. The January 1997 settlement agreement in Flores v. Reno, 85-cv-4544 (C.D. Cal.) governs the detention and release of "alien" children. The Flores Settlement remains binding on federal agencies, including DHS, HHS, and all respective agency components, such as ICE,
2 The INA defines the term "alien" as "any person not a citizen or national of the United States." INA § 101(a)(3), 8 U.S.C. § 1101(a)(3).
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CBP, USCIS, and ORR.3 In 2008, Congress enacted the Trafficking Victims Protection Reauthorization Act ( "TVPRA"), Pub. L. 110-457, 110 Stat. 5044 (2008), which paralleled certain aspects of the Flores Settlement and affirmed ORR's responsibility for the care, release, and custody of unaccompanied minors.
40. The Flores Settlement and its progeny, including the statutory rights and obligations within the TVPRA, provide a "nationwide policy for the detention, release, and treatment of minors in the custody of INS [which is the predecessor to ICE, CBP, and USCIS]," which requires the government to treat "all minors in its custody with dignity, respect and special concern for their particular vulnerability as minors." Exhibit 1, Flores Settlement ¶¶ 9-11; see 8 U.S.C. § 1232. A "minor" is "any person under the age of eighteen (18) years who is detained in the legal custody of the INS." See id. ¶ 4; 8 U.S.C. § 1232(g)(2); Flores v. Lynch, 828 F.3d 898, 905-06 (9th Cir. 2016).
41. Paragraph 14 of the Flores Settlement requires that "[w]here the INS determines that the detention of the minor is not required either to secure his or her timely appearance before the INS or the immigration court, or to ensure the minor's safety or that of others, the INS shall release a minor from its custody without unnecessary delay." Exhibit 1, Flores Settlement ¶ 14. Paragraph 14 also sets forth the "order of preference" for the release of a child and release to a parent is preferred. Id.
42. Critically, the Flores Settlement requires the federal government to "place each detained minor in the least restrictive setting appropriate to the minor's age and special needs, provided that such setting is consistent with its interests to ensure the minor's timely appearance
3 In 2002, Congress enacted the Homeland Security Act, Pub. L. 107–296, 116 Stat. 2135 (2002), and transferred authority over the care and placement of unaccompanied minors to ORR.
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before the INS and the immigration courts and to protect the minor's well-being and that of others." Exhibit 1, Flores Settlement ¶ 11 (emphasis added); 8 U.S.C. § 1232(c)(2)(A).
43. Under the Flores Settlement, children must be released from detention within five days, or within twenty days in certain emergency circumstances, to a parent, legal guardian, adult relative, adult designated by a legal guardian, or (if none of these are available) a licensed program willing to accept legal custody. Id. ¶¶ 12, 14.
44. An “unaccompanied alien child” (“UAC”) is a child under 18 years of age with no lawful immigration status who has neither a parent nor a legal guardian in the United States “available” to care for them. 6 U.S.C. § 279(g)(2). According to the TVPRA, a UAC “may not be placed with a person or entity unless the Secretary of Health and Human Services makes a determination that the proposed custodian is capable of providing for the child’s physical and mental well-being. Such determination shall, at a minimum include verification of the custodian’s identity and relationship to the child, if any, as well as an independent finding that the individual has not engaged in any activity that would indicate a potential risk to the child.” 8 U.S.C. § 1232(c)(3)(A).
45. The statute sets forth a process for DHS, usually through ICE or CBP, for the detention and release of UACs. 8 U.S.C. § 1232(b)(3). ICE or CBP may detain an unaccompanied child for up to 72 hours as other federal agencies locate an appropriate facility for that child. Id. ICE or CBP must then turn the child over to HHS. Id.
46. Once ORR detains a UAC, he or she is typically supervised and placed in ORRfunded and supervised facilities, where staff must attempt to locate a parent and determine if family reunification is possible. See generally 8 U.S.C. §§ 1232(c)(2)-(c)(3). If that is not the case, ORR staff will try to locate another family member, relative, family friend, or caretaker in
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the United States to serve as a sponsor who can care for the child during the pendency of the child's immigration proceedings. Id.
47. When ORR cannot find a sponsor, the unaccompanied child is moved to secondary ORR-contracted and state-licensed facilities throughout the country. Id. If DHS places the child in removal proceedings or the child has an affirmative pathway to legal immigration status, ORR will place the child in an ORR-contracted and state-licensed long-term foster care program while the immigration process continues. See 8 U.S.C. § 1232(a)(5)(D).
Defendants' Forcible Separation of Children from their Parents While in Immigration Detention 48. In 2017, the Defendants began forcibly separating thousands of migrant children from their families while in immigration detention, in an abusive manner and without the parents’ or children’s consent, for no legitimate purpose. The children accompanied their parents to the United States. For the first time ever, Defendants engaged in a widespread practice of prosecuting or referring for prosecution the parents for illegally reentering the county, a federal misdemeanor offense. See 8 U.S.C. § 1325(a). 49. Defendants prosecuted or referred the parents for prosecution, knowing that it would cause the parents to be separated from their children while the parents were transferred to federal criminal custody. 50. In the vast majority of cases, if not all of them, the parents were transferred to federal criminal custody, plead guilty to the criminal offense, were given a sentence of time served, and transferred back to civil immigration custody. 51. In the meantime, their children remained seized, designated as UACs, and not afforded counsel, process, or notice of their parents’ whereabouts. They were often transferred
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to the custody of ORR at child detention centers thousands of miles away from the place where they were separated from the parents.
52. Once the children’s parents were released from their brief criminal detention and were released or subject to civil immigration detention, Defendants withheld the children from their parents’ care and custody by detaining them in separate detention facilities throughout the United States.
53. Rather than reuniting the children with their parents in civil immigration custody, Defendants continued their separation and withheld the children from their parents’ care, custody, and control.
54. The children were separated from their parents indefinitely without due process to challenge their seizure and indefinite separation. Defendants engaged in this conduct to demonstrate the agony that parents should expect to experience they dare to enter the United States without authorization with their children.
55. Defendants’ conduct forced and coerced parents and their children to separately make important legal decisions regarding their potential claims for asylum, and other efforts to defend against removal to their home countries.
56. As early as March 2017, a senior DHS official acknowledged that Defendants were considering forcibly separating children from their parents at the Southwestern border. M. Mallonee, DHS Considering Proposal to Separate Children from Adults at Border, March 4, 2017, available at https://www.cnn.com/2017/03/03/politics/dhs-children-adultsborder/index.html.
57. On March 7, 2017, then-Secretary of DHS John Kelly confirmed that DHS was considering forcibly separating children from their parents "to deter more movement." D. Diaz,
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Kelly: DHS Considering Separating Undocumented Children from their Parents at the Border, March 7, 2017, available at https://www.cnn.com/2017/03/06/politics/ john-kelly-separatingchildren-from-parents-immigration-border/index.html . While Kelly later backtracked after harsh criticism, an inside source reported to the press that the family separation proposal was still under consideration by Defendants at DHS as of August 2017. J. Blitzer, How the Trump Administration Got Comfortable Separating Immigrant Kids from their Parents, The New Yorker, May 30, 2018, available at https://www.newyorker.com/news/news-desk/how-thetrump-administration-got-comfortable-separating-immigrant-kids-from-their-parents.
58. In fact, Defendants at DHS began separating children from their parents in secret in the El Paso section of the border in West Texas from July to November 2017. D. Lind, Trump's DHS is Using an Extremely Dubious Statistic to Justify Splitting Up Families at the Border, Vox, May 8, 2018, available at https://www.vox.com/policy-andpolitics/2018/5/8/17327512/sessions-illegal-immigration-border-asylum-families.
59. The forced separation of families continued well into 2018 and took place without a hearing or any process whatsoever, regardless of the family's circumstances or the needs of the children. It also occurred regardless of where or how the family entered, whether they sought asylum, whether they were charged with unlawful entry or whether a family member had passed a credible fear interview under federal asylum law.
60. Defendants have taken children as young as infants from their parents, often with no warning or opportunity to say goodbye, and with little to no information provided about where the Defendants were taking the children or when they would next see their parents.
61. Most of these migrant families fled their home countries to lawfully seek asylum once physically present in the United States. See 8 U.S.C. § 1158(a)(1).
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62. Nevertheless, without any allegations that the parents are unfit or abusive, the Defendants forcibly separated these asylee-seeking parents from their young children, who were derivative applicants on their parents’ applications and detained the, often thousands of miles away from their parents.
63. The government separated families without providing notice to the parents or children of each other's whereabouts or well-being and refused to reunite these families, without any legal basis for doing so.
64. Government officials have torn some children from the arms of their parents while crying and pleading not to be taken away.
65. In other cases, government officials have told children they were going to play with other children, but after separating the children from their parents they were not returned.
66. In some cases, the parents were falsely told that they would be going to court only to be taken to a different detention cell, separated from their children. They were then transported to a different detention center without the opportunity to say goodbye to their children or to explain that they would not see each other for some time.
67. Many parents were told the children would be "adopted" and they would not see their children again.
68. Many parents were deported without their children. 69. During the separation, parents and children were often prevented from communicating for weeks or longer, and even when allowed to communicate typically children could only communicate with a parent by telephone for a few short minutes and were not permitted to talk about where they were being held. These phone calls were closely monitored. In the detention facilities where they were kept, children were not allowed to touch each other.
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While staff at many detention facilities were permitted to hold the youngest children, they were instructed not to hold or touch older children.
70. Additionally, in some of the makeshift detention centers children were held in areas with no beds or mattresses. Some of the children were subjected to abuse by those working at the detention centers.
71. Medical care at the detention centers was often grossly inadequate, even leading to the death of a one-year old child who developed a respiratory infection at an immigration jail in Texas. The child was turned away twice by the facility's health clinic, the treatment she received may have exacerbated the condition given her age, and she was cleared for release without a medical examination. The child then spent six weeks in two hospitals before dying from bronchiectasis, pulmonitis, pneumothorax, or collapsed lung. M. Sacchetti, Mother blames toddler's death on poor medical care in U.S. immigration jail, Washington Post, August 28, 2018, available at https://wapo.st/2PJRMv5?tid=ss_mail&utm_term=.3dddd9b5a241.
72. These conditions of confinement further traumatized the children separated from their parents and traumatized the parents who were separated from their children.
73. Under HHS Secretary Azar's direction, HHS would not allow media cameras into facilities housing immigrant children separated from their parents. Yet Azar claimed, incredibly, that "[w]e have nothing to hide about how we operate these facilities" and that "[i]t is one of the great acts of American generosity and charity, what we are doing for these unaccompanied kids who are smuggled into our country or come across illegally." M. Rod, HHS Secretary: We're Performing Great Act of "Generosity and Charity" for Immigrant Children, July 10, 2018, available at https://www.cnn.com/2018/07/10/politics/azar-hhs-child-separation-immigrationcharity-cnntv/index.html.
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74. Suddenly ripping children away from their parents and forcibly keeping them separated for unconscionable lengths of time is conduct that shocks the conscience, bespeaks a callous disregard for the human beings in HHS's care, and demonstrates the discriminatory animus behind these practices. Contra M. Rod, HHS Secretary: We're Performing Great Act of "Generosity and Charity" for Immigrant Children, July 10, 2018, available at https://www.cnn.com/2018/07/10/politics/azar-hhs-child-separation-immigration-charitycnntv/index.html.
75. Attempts by parents to be reunited with their children were unlawfully delayed and made unnecessarily cumbersome as a result of the Defendants' deliberate decision to classify the children as "unaccompanied minors," even though they entered the United States with their parents. This classification meant that parents had to go through a lengthy and complex process to apply to be a "sponsor" of their own children in order to be reunited. This exacerbated the harm done by the separation by prolonging it and transforming reunification into an unnecessarily arduous journey through a labyrinth of government bureaucracy.
76. At least one HHS official has stated that "[w]hat went wrong is the children separated from their parents were referred as unaccompanied alien children when in fact they were accompanied." N. Miroff & K. Memirjian, Senate Panel Skewers Trump Officials Over Migrant Family Separations, Wash. Post, July 31, 2018, available at https://www.washingtonpost.com/world/national-security/lawmakers-to-question-trumpofficials-on-migrant-family-separations-struggle-to-reunite-them/2018/07/31/ddb61390-946711e8-8ffb-5de6d5e49ada_story.html?utm_term=.27575f06d9ea.
77. During his tenure, Director Lloyd has effectively transformed ORR from an agency designed to care for the health and well-being of migrant children into what former ORR
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Director Robert Carey has called "a juvenile detention agency." R. Planas, A Single Trump Appointee Was Responsible for Keeping Hundreds of Kids Locked Up Longer, HuffPost, July 26, 2018, available at https://www.huffingtonpost.com/entry/scott-lloyd-refugeeresettlement_us_5b58cd0fe4b0fd5c73cb3c1a. This was due in part to Director Lloyd's insistence in June 2017, at a time when the forced separation of families was under consideration, that he personally review and approve release decisions involving unaccompanied minors housed in staff-secure facilities. This led to extensive delays in the release of certain minors in ORR custody. Id. A federal judge enjoined that practice in June 2018, ruling that the plaintiffs demonstrated a likelihood of success on the merits of their claims that the practice violated the Administrative Procedure Act and TVPRA. L.V.M. v. Lloyd, 2018 WL 3133965 (S.D.N.Y. June 27, 2018).
78. Director Lloyd's intentional delays exacerbated ORR's ability to process the thousands of children separated from their parents by the Defendants. Under Director Lloyd's leadership, ORR was unequipped to handle the influx of "unaccompanied" minors, and Director Lloyd deliberately failed to improve the situation until ordered to do so by a federal judge in California last summer. Defendants' "Zero Tolerance Policy" Served as a Pretext to Continue Separating Families
79. On April 6, 2018, General Sessions announced the Trump Administration's socalled "zero-tolerance policy" for illegal entry into the United States in violation of 8 U.S.C. § 1325(a) as a pretext for these family separations. In reality, Defendants had been forcibly separating children from their parents long before the "zero-tolerance policy" was announced. The express purpose of the family separation was to deter immigration to the United States by instilling fear in migrants, particularly those from South and Central American countries. That
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conduct—forcibly separating families on the basis of race or national origin—violates the United States Constitution and state tort law.
80. After General Sessions' announcement, ICE Director Homan, USCIS Director Cissna, and CBP Commissioner McAleenan signed onto a letter to DHS Secretary Nielsen urging her to detain and refer for prosecution all parents caught crossing the Mexican border illegally with their children. In other words, Homan, Cissna, and McAleenan pushed for the across-the-board implementation of the Justice Department's "zero-tolerance policy" at DHS to serve as a pretext for continuing the Defendants' forcible separation of immigrant children from their parents while in immigration detention at the Southwestern border. M. Sacchetti, Top Homeland Security Officials Urge Criminal Prosecution of Parents Crossing Border with Children, Washington Post, April 26, 2018, available at https://www.washingtonpost.com/local/immigration/top-homeland-security-officials-urgecriminal-prosecution-of-parents-who-cross-border-with-children/2018/04/26/a0bdcee0-496411e8-8b5a-3b1697adcc2a_story.html?utm_term=.655fc386e41a.
81. According to a letter authored by 17 United States Senators in April 2018, under Director Homan's leadership, ICE "sharply increased arrests and detentions of immigrants with no criminal background" and "[r]eportedly separated hundreds of children of asylum-seekers from their parents," among other things. April 27, 2018 Letter from Sens. to Sec. K. Nielsen, available at https://www.murray.senate.gov/public/index.cfm/2018/4/immigration-senatormurray-raises-questions-about-nomination-of-tom-homan-to-head-immigration-and-customsenforcement.
82. Importantly, these statements distinguish between the “zero-tolerance policy” and the Defendants’ unnecessary and unlawful conduct in forcibly separating children from their
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families while they were held in immigration detention. That conduct pre-dated and post-dated the “zero-tolerance policy.”
83. Defendant Secretary Nielsen as well as President Trump have also made statements demonstrating that distinction.
84. Secretary Nielsen put out the following statement on Twitter on June 17, 2018: “We do not have a policy of separating families at the border. Period.” See Sec. Kirstjen Nielsen (@SecNielsen), Twitter, https://twitter.com/secnielsen/status/1008467414235992069?lang=en.
85. In testimony before the House Judiciary Committee on December 20, 2018, Defendant Secretary Nielsen again stated: “[W]e’ve never had a policy for family separation.” See, e.g., D. Clark, DHS Chief Nielsen Defends Immigration Policies in Heated Hearing, NBC News (Dec. 20, 2018), available at https://www.nbcnews.com/politics/congress/i-am-not-liardhs-chief-nielsen-defends-immigration-policies-n950511.
86. On June 20, 2018, President Trump issued an Executive Order stating, in part, that “[i]t is . . . the policy of this Administration to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources.” Exec. Order No. 13841, 83 Fed. Reg. 122 (June 25, 2018), available at https://www.govinfo.gov/content/pkg/FR-2018-06-25/pdf/2018-13696.pdf.
87. The President’s Executive Order said nothing, however, about reuniting the families who had already been separated or compensating them for the trauma that the Defendants put these families through. Moreover, it took weeks to reunite most of the parents and children and even today not all of these families have been reunited, in some cases because the parents were deported while their children remained detained in the United States.
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88. After issuing the Executive Order, President Trump repeatedly emphasized the lawless nature of the Defendants’ approach. President Trump proposed that DHS simply deport immigrants without a hearing or any legal process whatsoever. On June 21, 2018, President Trump stated: "We shouldn't be hiring judges by the thousands, as our ridiculous immigration laws demand, we should be changing our laws, building the Wall, hire Border Agents and Ice and not let people come into our country based on the legal phrase they are told to say as their password." See President Donald J. Trump (@realDonaldTrump), Twitter, https://twitter.com/realdonaldtrump/status/1009770941604298753?lang=en.
89. President Trump again proposed a lawless approach on June 24, 2018: "We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order. Most children come without parents…" K. Rogers & S. Gay Stolberg, Trump Calls for Depriving Immigrants Who Illegally Cross Border of Due Process Rights, N.Y. Times, June 24, 2018, available at https://www.nytimes.com/2018/06/24/us/politics/trump-immigration-judges-due-process.html.
90. These are but a few examples of the torrent of such statements that came from the President and other officials in the Trump Administration who either echoed these statements or acted in accordance with them.
Defendants' Forcible Separation of Children from their Parents While in Immigration Detention was Motivated by Discriminatory Animus and an Express Intent to Deter Lawful
Immigration to the United States by Instilling Fear in Would-be Migrants 91. Defendants and others in the Trump Administration have openly admitted that the forcible separation of families in immigration detention at the Southwestern border was intended to target immigrants by their race, ethnicity, or national origin. The forcible separation of these families is also consistent with the racist and xenophobic hostility shown toward Latino
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immigrants, repeatedly voiced and demonstrated by President Trump and carried out by his Administration, including the Defendants in this case.
92. For example, in June 2015, when then-candidate Trump announced his campaign at Trump Tower, he declared: "When Mexico sends its people, they're not sending their best. . . . They're bringing drugs. They're bringing crime. They're rapists." Z. Byron Wolf, Trump Basically Called Mexicans Rapists Again, available at https://www.cnn.com/2018/04/06/politics/trump-mexico-rapists/index.html. In that speech, Mr. Trump proposed building a wall along the Southwestern border and making Mexico pay for it. President Trump has repeatedly referred to Mexicans as "criminals" and "thugs."
93. In January of 2018, President Trump referred to El Salvador, Haiti, and African countries generally as "shithole countries" and said that the United States should be allowing immigration from countries like Norway instead. E. O'Keefe & A. Gearan, Trump, Condemned for "Shithole" Countries Remark, Denies Comment But Acknowledges "Tough" Language, Washington Post, Jan. 13, 2018, available at https://www.washingtonpost.com/politics/trumpacknowledges-tough-language-but-appears-to-deny-shithole-remark/2018/01/12/c7131dae-f79611e7-beb6-c8d48830c54d_story.html?utm_term=.4e58b8638236. The racism behind that statement is self-evident.
94. President Trump has impugned the integrity and independence of federal District Judge Gonzalo Curiel because, Trump said, Judge Curiel was of Mexican descent and "very hostile" to Trump because Trump was "very, very strong on the border."
95. United States House Speaker Paul Ryan appropriately rebuked these outrageous statement, describing them as "the textbook definition of a racist comment." D. Walsh & M.
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Raju, CNN, June 7, 2016, available at https://www.cnn.com/2016/06/07/politics/paul-ryandonald-trump-racist-comment/index.html.
96. President Trump's clear animus based on race, ethnicity, and national origin provides the context for understanding the unlawful and irrational actions of the Defendants in this case. The driving force behind the Defendants’ forcible separation of immigrant families along the Southwestern border while in immigration detention was this very animus based on race, ethnicity, and national original, which led to a failure to adhere to the well-established constitutional and statutory rights of Plaintiffs and the class. Each of the Defendants adopted, implemented, enforced, condoned, sanctioned, acquiesced to, and encouraged these forced family separations with the purpose of discriminating against immigrants based on their race, ethnicity, or national origin. Such intentional discrimination on these bases is unconstitutional.
97. What is more, Defendants and others in the Trump Administration have made clear that the express purpose of the forced separation of children from their parents was to deter immigrants, particularly from Central and South American countries, from coming to the United States. The vast majority of immigrants at the Southwestern border are from Central and South American countries and are Latino.
98. During a press interview in May of 2018, Secretary Kelly said that "a big name of the game is deterrence" when asked whether he was in favor of forced family separation. He said family separation "would be a tough deterrent. A much faster turnaround on asylum seekers." Kelly dismissively stated that the traumatized children "will be taken care of—put into foster care or whatever." Transcript: White House Chief of Staff John Kelly's Interview with NPR, National Public Radio, May 11, 2018, available at
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https://www.npr.org/2018/05/11/610116389/transcript-white-house-chief-of-staff-john-kellysinterview-with-npr.
99. On June 6, 2018, former ICE Director Homan made the deterrence goal plain when he stated: "One thing you got to remember, for that parent who was arrested and his child crying and feeling bad about it, I get it, but what responsibility does he have in this? He chose to enter the country illegally in violation of federal law. He chose to do that intentionally. . . . He put himself in the position." C. Da Silva, ICE Chief Defends Separating Families at Border After U.N. Condemns Practice as Rights Violation, Newsweek, June 6, 2018, available at https://www.newsweek.com/ice-chief-defends-separating-families-border-after-un-condemnspractice-rights-960825.
100. Defendant Stephen Miller was a driving force in behind the Defendants’ forcible separation of families in immigration detention. Mr. Miller has embraced family separation and explained that "[t]he message is that no one is exempt from immigration law." C. Danner, Separating Families at the Border Was Always Part of the Plan, June 17, 2018, N.Y. Magazine, available at http://nymag.com/daily/intelligencer/2018/06/separating-families-at-border-wasalways-part-of-the-plan.html.
101. Mr. Miller's anti-Latino animus is well-known and long-standing. Even in high school he wrote an opinion piece for the Santa Monica Lookout which argued that "very few, if any, Hispanic students" make it to honors classes because the school gives them a "crutch" by ensuring that "all announcements are written in both Spanish and English." S. Tatum, How Stephen Miller, the Architect Behind Trump's Immigration Policies, Rose to Power, June 23, 2018, available at https://www.cnn.com/2018/06/23/politics/stephen-miller-immigration-familyseparation/index.html.
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102. Mr. Miller's anti-immigrant and anti-Latino animus has only hardened over the years. In fact, an outside White House adviser recently stated that "Stephen actually enjoys seeing those pictures at the border" of Central and South American children being separated from their parents. G. Sherman, "Stephen Actually Enjoys Seeing Those Pictures at the Border": The West Wing is Fracturing Over Trump's Callous Migrant-Family Policy, Vanity Fair, June 20, 2018, available at https://www.vanityfair.com/news/2018/06/stephen-miller-familyseparation-white-house.
103. Defendant Gene Hamilton, who has been described as "a close ally of Stephen Miller," was reported to be "[a]mong those leading the discussion" about forcibly separating families in immigration detention at the Southwestern border. J. Blitzer, How the Trump Administration Got Comfortable Separating Immigrant Kids from their Parents, The New Yorker, May 30, 2018, available at https://www.newyorker.com/news/news-desk/how-thetrump-administration-got-comfortable-separating-immigrant-kids-from-their-parents.
104. A former government official has reported to the press that Miller and Hamilton, among others, "want to have a different America, and they're succeeding." Moreover, "Miller has only seemed to gain allies in the government" as a result of his role in pushing for the forcible separation of immigrant children from their parents. J. Blitzer, Will Anyone in the Trump Administration Ever Be Held Accountable for the Zero-Tolerance Policy?, The New Yorker, August 22, 2018, available at https://www.newyorker.com/news/daily-comment/willanyone-in-the-trump-administration-ever-be-held-accountable-for-the-zero-tolerance-policy.
105. In public remarks on the "zero tolerance policy" on May 7, 2018, General Sessions emphasized that "[i]f you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law." Exhibit 2, DOJ Press Release (May 7,
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2018). General Sessions said nothing about reuniting parents with their children once detention ended because he had no intention of doing so.
106. Later, General Sessions stated: "We cannot and will not encourage people to bring their children or other children to the country unlawfully by giving them immunity in the process." L. Sanchez, Sessions On Separating Families: If We Build A Wall and Pass Legislation, We Won't Have These "Terrible Choices", The Hill, June 18, 2018, available at http://thehill.com/homenews/administration/392785-sessions-on-separating-families-if-we-builda-wall-and-pass.
107. When asked if forced family separation was "absolutely necessary," General Sessions responded: "Yes. . . . We believe every person that enters the country illegally like that should be prosecuted. And you can't be giving immunity to people who bring children with them recklessly and improperly and illegally." H. Hewitt, US Attorney General Jeff Sessions on Children Separated from Parents at Broder, F-1 Visas for PRC Students, and Masterpiece Cakeshop Decision, June 5, 2018, available at http://www.hughhewitt.com/attorney-general-jeffsessions-on-the-immigration-policies-concerning-children-apprehended-at-he-border-and-f-1visas/.
108. Likewise, Secretary Nielsen has said that "[i]llegal actions have and must have consequences. No more free passes, no more get out of jail free cards." T. Kopan, "We Will Not Apologize": Trump DHS Chief Defends Immigration Policy, June 18, 2018, available at https://www.cnn.com/2018/06/18/politics/kirstjen-nielsen-immigration-policy/index.html.
109. At an August 2017 DHS meeting, Mr. Hamilton explained to participants that they would "need to generate paperwork laying out everything we could do to deter immigrants from coming to the U.S. illegally,” which included "separating parents from their kids at the
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border." J. Blitzer, How the Trump Administration Got Comfortable Separating Immigrant Kids from their Parents, The New Yorker, May 30, 2018, available at https://www.newyorker.com/news/news-desk/how-the-trump-administration-got-comfortableseparating-immigrant-kids-from-their-parents.
110. Counselor to the President Kellyanne Conway also made clear the purpose of Defendants' forcible separation of families: "Nobody likes seeing babies ripped from their mothers' arms . . . but we have to make sure that DHS' laws are understood through the soundbite culture that we live in." Kellyanne Conway: 'Nobody Likes' Policy Separating Migrant Kids at the Border (June 17, 2018), available at https://www.nbcnews.com/politics/first-read/conwaynobody-likes-policy-separating-migrant-kids-border-n884016.
111. General Sessions, Secretary Nielsen, Secretary Kelly, Mr. Miller, Mr. Hamilton, Director Homan and others in the Trump Administration, including the President himself, have also made clear that the forced separation and traumatization of families in immigration detention is being used as a negotiating ploy for political gain.
112. Mr. Miller has stated: "If we were to have those [Republican sponsored] fixes in federal law, the migrant crisis emanating from Central America would largely be solved in a very short period of time," and "[f]amilies would then therefore be able to be kept together and could be sent home expeditiously and safely." T. Hesson, White House's Miller Blames Democrats for Border Crisis, Politico, May 29, 2018, available at https://www.politico.com/ story/2018/05/29/stephen-miller-democrats-border-574537 ; see also P. Kasperowicz, ICE Director: Democrats Should "Get Their Facts Straight" Before Protesting Family Separation, Washington Examiner, June 29, 2018, available at https://www.washingtonexaminer.com/news/ ice-tom-homan-democrats-get-facts-straight-protesting-family-separation.
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Defendants Were Aware of the Traumatic Harm that Children Would Suffer from Being Forcibly Separated from their Parents, but Defendants Did It Anyway, and Failed to Provide the Children with Adequate Mental Health Care 113. Separation of a young child from his or her parent is a traumatic event that has a
devastating impact on the child's psychological well-being. Children are likely to experience post-traumatic symptoms, such as nightmares and other manifestations of anxiety and depression. This damage can be permanent, especially where, as here, the child has already experienced other trauma in their home country, on their journey to the United States, or both.
114. On January 23, 2018, a group of experts in child welfare, juvenile justice, and child development, including the American Association of Pediatrics, criticized the government's separation of migrant children from their parents, pointing out that: "[T]he psychological distress, anxiety, and depression associated with separation from a parent would follow the children well after the immediate period of separation—even after the eventual reunification with a parent or other family." Exhibit 3, Jan. 23, 2018 Letter to K. Nielsen.
115. The American Academy of Pediatrics put out another statement opposing the cruel family separations on May 8, 2018, in which its President, Colleen Kraft, M.D., wrote: "Separating children from their parents contradicts everything we stand for as pediatricians – protecting and promoting children's health. In fact, highly stressful experiences, like family separation, can cause irreparable harm, disrupting a child's brain architecture and affecting his or her short- and long-term health. This type of prolonged exposure to serious stress - known as toxic stress - can carry lifelong consequences for children." C. Kraft, AAP Statement Opposing Separation of Children and Parents at the Border, available at https://www.aap.org/en-us/aboutthe-aap/aap-pressroom/Pages/StatementOpposing SeparationofChildrenandParents.aspx.
116. Media reports have explained that "many of the children released to their parents are exhibiting signs of anxiety, introversion, regression and other mental health issues." M.
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Jordan, A Migrant Boy Rejoins His Mother, But He's Not the Same, N.Y. Times, July 31, 2018, available at https://www.nytimes.com/2018/07/31/us/migrant-children-separation-anxiety.html. This includes "acute anxiety around routines that separate [the children] from their parents, such as when the adult bathes or goes into another room." Id.
117. One of the reasons for this is that the children may understand the separation as a punishment. Id. "Decades of research have concluded that children traumatically separated from their parents have a high likelihood of developing emotional problems, cognitive delays and long-term trauma." Id. "More recent studies have found that separation can impair memory and normal production of cortisol, a hormone produced in response to stress." Id.
118. This psychological harm continues after reunification. 119. One 5-year old migrant boy loved playing with the yellow Minion characters from the "Despicable Me" movies before being forcibly separated from his mother. "Now his favorite game is patting down and shackling 'migrants' with plastic cuffs." Id. The boy, who had not nursed in years, pleaded with his mother to be breastfed after he was finally reunited with his mother. He hid behind a sofa when guests, including undersigned counsel Jesse M. Bless, Esq., visited the family's new home in Philadelphia. Id. 120. "A 3-year old boy who was separated from his mother has been pretending to handcuff and vaccinate people around him, behavior he almost certainly witnessed in [ICE] custody." Id. 121. "A pair of young siblings burst into tears when they spotted police officers on the street." Id. 122. One three-year-old boy refused to look at his mother and pulled away from her embrace when they were initially reunified. See A. Valdes & I. Mejia, 'My Son Is Traumatized':
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One Separated Family's Reunion, ACLU Press Release, August 24, 2018, available at https://www.aclu.org/blog/immigrants-rights/immigrants-rights-and-detention/my-sontraumatized-one-separated-familys.
123. Similarly, parents who arrived with their children at the United States border and were forcibly separated from their children by the Defendants while in immigration detention are likely to experience immediate and acute psychological injury as well as lasting and permanent emotional and psychological harm. This includes anxiety, depression, post-traumatic stress disorder, and other trauma-related disorders. The trauma that the children face is compounded by watching their parents suffer and the emotional toll that the parents' own trauma takes on the parent-child relationship. Making matters worse, the Defendants then failed to adequately provide the children with necessary mental health care while the children were in Defendants' custody.
124. Indeed, one parent is reported to have committed suicide after his 3-year-old son was taken from his arms. N. Miroff, A Family Separated at the Border, and this Distraught Father Took His Own Life, Washington Post, June 9, 2018, available at https://www.washingtonpost.com/world/national-security/a-family-was-separated-at-the-borderand-this-distraught-father-took-his-own-life/2018/06/08/24e40b70-6b5d-11e8-9e3824e693b38637_story.html?utm_term=.dca844c151d9. This harm to the parents, of course, will impact the quality of their relationship with their children for years to come.
125. There is no doubt that Defendants were aware of the severe psychological and emotional trauma that forcibly separating children from their parents would cause. Not only is the likelihood of severe harm self-evident, but Defendants were informed of and warned about
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the likelihood of such harm directly and through many authoritative public statements by other government officials and experts in the field.
126. For example, on February 12, 2018, 33 United States Senators signed a letter to Secretary Nielsen to express their "deep concern" about "systematically separat[ing] immigrant children from their parents upon arrival in the United States." Exhibit 4, Feb. 12, 2018 Letter from U.S. Sens. to Sec. Nielsen. The Senators wrote to "condemn" forced family separation and to urge Secretary Nielsen to reject this "cruel" and "grotesquely inhumane" conduct that they recognized would "inflict significant trauma on small children." Id.
127. Moreover, Commander Jonathan White of the United States Public Health Service Commissioned Corps (who organized the government's reunification effort at DHS after a federal court in California ordered reunification in 2018) testified before the Senate Judiciary Committee on July 31, 2018. Commander White told the Judiciary Committee "that he had warned his superiors that separating children from their parents carries a 'significant risk of harm' and could inflict 'psychological injury.'" N. Miroff & K. Memirjian, Senate Panel Skewers Trump Officials Over Migrant Family Separations, Wash. Post, July 31, 2018, available at https://www.washingtonpost.com/world/national-security/lawmakers-to-question-trumpofficials-on-migrant-family-separations-struggle-to-reunite-them/2018/07/31/ddb61390-946711e8-8ffb-5de6d5e49ada_story.html?utm_term=.27575f06d9ea. Commander White told the Senate panel that his superiors assured him that the government was not planning to separate families. Id.
128. Even in the face of these clear and direct warnings, the Defendants proceeded to traumatize the class members, and then exacerbated the trauma by failing to provide the children with adequate and necessary mental health services, even though the Defendants knew that the
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class members needed mental health care to address the trauma that Defendants themselves inflicted on the class members.
129. In the words of a current Trump Administration official: "The expectation was that the kids would go to the Office of Refugee Resettlement, that the parents would get deported, and that no one would care." J. Blitzer, Will Anyone in the Trump Administration Ever Be Held Accountable for the Zero-Tolerance Policy?, The New Yorker, August 22, 2018 (emphasis added), available at https://www.newyorker.com/news/daily-comment/will-anyone-inthe-trump-administration-ever-be-held-accountable-for-the-zero-tolerance-policy. After Traumatizing Children and Parents, Defendants Coerced Parents into Waiving Their
Children's and Their Own Rights to Asylum and Other Relief 130. After subjecting parents and children to some of the most severe trauma of their lives, Defendants proceeded to coerce many parents into signing forms that waived their own and their children's rights to pursue asylum claims in the hope of being reunited with their children more quickly. 131. A senior official, speaking on condition of anonymity, confirmed that Defendants did not plan to reunite families until after a parent had lost his or her deportation case, effectively punishing parents who may otherwise pursue an asylum claim or other relief, and creating tremendous pressure to abandon such claims so that parents may be reunited with their children. M. Saccheri, M. Miller & R. Moore, Sen. Warren Visits Detention Center, Says No Children Being Returned to Parents There, Washington Post, June 24, 2018, available at https://www.washingtonpost.com/local/immigration/desperate-to-get-children-back-migrantsare-willing-to-give-up-asylum-claims-lawyers-say/2018/06/24/c7fab87c-77e2-11e8-80be6d32e182a3bc_story.html?utm_term=.3118c8f35345.
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132. Parents have been presented with the option to be deported with their children and waive the children's right to asylum, or to be deported alone and leave the child in the United States to pursue an asylum claim. Some who have chosen to be deported alone to let their children pursue asylum were not even allowed by ICE to say goodbye to their children but had to wave to their children who sat on a bus. M. Jordan, Migrant Families Have Been Reunited. Now a Scramble to Prevent Deportations, N.Y. Times, July 30, 2018, available at https://www.nytimes.com/2018/07/30/us/migrant-familiesdeportations.html?action=click&module=MoreInSection&pgtype=Article&region=Footer&cont entCollection=U.S.
133. In the past, the government often placed families apprehended at the border in regular removal proceedings without detaining them at all. For other families, the government used expedited removal procedures and detained members of the families together during these expedited proceedings. If the government found these family members to have a credible fear of persecution, they would release the family from detention, because it often takes years before immigration courts can offer asylee applicants a full and fair hearing on the merits of their claims.
134. Defendants in the Trump Administration are the first to systematically and forcibly separate all fit parents from their young children in immigration detention, refuse to reunify them thereafter until ordered by a federal court to do so, and then double down by coercing parents to waive their own and their children's rights to asylum and other relief. DHS Advisory Council Members Resign in Protest of the Defendants’ Forced Separation of
Children from their Parents in Immigration Detention 135. As a result of Defendants' unconstitutional actions, four members of the Department of Homeland Security Advisory Council resigned on July 16, 2018 in protest of the
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forced separation of children from their parents, writing that "routinely taking children from migrant parents [i]s morally repugnant, counter-productive and ill-considered." Exhibit 5, July 16, 2018 Letter from R. Danzig, E. Holtzman, D. Martin, and M. Olsen to Sec. K. Nielsen.
136. Former Congresswoman Elizabeth Holtzman wrote to Secretary Nielsen in her separate individual resignation letter:
Under your administration and that of Donald Trump's, DHS has been transformed into an agency that is making war on immigrants and refugees. . . . The final straw has been the separation of children from their parents at the Southwest border. This is child kidnapping, plain and simple. Seizing children from their parents in violation of the constitutional rights of both is bad enough (mentally harmful to the children and infinitely painful to both the parents and children), but doing so without creating proper records to enable family reunification shows utter depravity on the part of the government officials involved. Exhibit 6, July 16, 2018 Letter from Hon. E. Holtzman to Sec. K. Nielsen. 137. Professor David A. Martin wrote to Secretary Nielsen in his own resignation letter about the “unjust” separation of families at the border. He explained that it was “clear” that the separation of children from their families was “executed with astounding casualness about precise tracking of family relationships – as though eventual reunification was deemed unlikely or at least unimportant, even for toddlers and preschoolers. . . . From the beginning, however, the administration has opted instead for gratuitously severe actions in the immigration arena.” Professor Martin went on to write that the Defendants’ forcible separation of children from their families “crystallized for many HSAC members profound doubts about the administration's commitment to the rule of law.” Exhibit 7, July 16, 2018 Letter from Prof. D. Martin to Sec. K. Nielsen.
Individual Plaintiffs' Allegations – K.O. and E.O., Jr.
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138. On May 19, 2018, K.O., E.O., Jr., and their mother L.J. arrived in Texas on foot after fleeing from their home country of Guatemala. The family fled the violence they had experienced in Guatemala and were seeking asylum in the United States.
139. At the time of their crossing, K.O. was nine years old and E.O., Jr. was seventeen years old.
140. The family walked alone for about five hours along the Rio Grande, without food or water and in fear of being robbed or attacked by a poisonous snake or other animal. They hoped that a CBP Agent would find them to allow them to apply for asylum.
141. Eventually a single CBP Agent stopped the family and told them to remove their jewelry, belts, and shoes. The CBP Agent made K.O. remove a small ring that she had received upon her Kindergarten graduation. The CBP Agent asked them if they had any money, telephones, or identification. L.J. explained that they only had identification.
142. The CBP Agent then drove the family in a truck for about thirty minutes. Immediately, K.O. and E.O., Jr. felt relieved, believing that help had arrived and they could finally rest. K.O. fell asleep.
143. The family was taken to border patrol detention facility L.O. believes was approximately ten minutes away from an immigration detention facility in McAllen, Texas. They were seated on a cement bench.
144. After a few minutes, CBP Agents called E.O., Jr. into an extremely small room with about fifty other children ranging in age from about fourteen to seventeen. When E.O., Jr. was taken from L.J., she had no idea that the Defendants intended to keep them separated.
145. In the first border patrol immigration detention facility, there was not enough space in the room for E.O., Jr. to sit so he had to stand for almost seven hours. The air became
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so thick and heavy that some of the children kept calling for the CBP Agents to help by banging on the door. Every once in a while, the CBP Agents opened the door, which let some air in, and everyone felt momentary relief. More than once, the CBP Agents opened the door and screamed at the group of children in Spanish: "Shut up, you donkeys!"
146. L.J. saw her son E.O., Jr. come out of the room once to be fingerprinted. The CBP Agents would not let E.O., Jr. talk to L.J. They were terrified. They did not know why the CBP Agents had separated them. They feared they would never see each other again.
147. About two minutes after taking E.O., Jr., CBP Agents took nine-year-old K.O. and her mother to another holding cell. About thirty other mothers were in that cell with their children. One mother had an infant that looked to be only two months old. The room was freezing cold, the only food was sandwiches for the children, and many of the children were crying the entire time. Mothers walked with their children on their shoulders and sang songs to them, hoping to help the children fall asleep.
148. K.O. felt hungry, cold, and afraid in that cell. L.J. could not do anything to help her.
149. About twelve to fourteen hours later, CBP Agents brought L.J. into a room with about ten other mothers. Their children were left alone in a cell. K.O. grabbed L.J. from behind and said, "Mommy, don't go!"
150. The CBP Agent had to pry K.O.'s hands off of L.J. and when he did that he yelled at K.O. in Spanish: "Dejala!" That means: "Let her go!" L.J. asked the agent why he was attacking K.O.
151. As the CBP Agent pulled K.O.'s hands off of L.J., he said to her in Spanish: "You're going to be deported to Guatemala and we're going to adopt your daughter."
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152. K.O. was screaming. L.J. desperately called out to K.O., telling her: "I love you with all my heart! We are going to see each other again soon. Remember your father's phone number."
153. E.O., Jr. could see this happening through the window of the room where he was being held. E.O., Jr. banged on the window to try to stop them from taking his sister, to no avail.
154. K.O.'s father, E.O., was living in Westborough, Massachusetts and L.J. thought he would be able to help K.O. even if L.J. could not. When he found out where they were, E.O. began trying to get his children released to him in Massachusetts.
155. On the day the children were suddenly and forcibly taken from L.J. while they were being held in a border patrol immigration detention facility, a CBP Agent or ICE Agent told E.O. that they intended to separate the children from L.J. L.J. was transferred to criminal custody, indicted for the misdemeanor criminal offense of illegal entry at federal court in Texas, pleaded guilty, and was sentenced to time served.
156. Once the criminal process against L.J. ended and she returned to civil immigration custody, Defendants had no legitimate interest in keeping K.O. and E.O., Jr. from the custody and care of L.J. There was no evidence or even allegation of abuse, neglect, or unfitness or that L.J. was not acting in the best interests of her children. Defendants did not provide K.O., E.O., Jr., or L.J. with any notice or opportunity to be heard before forcibly separating them.
157. K.O. and E.O., Jr. were placed on a bus with no shoes. E.O., Jr. tried to hug his sister, but the CBP Agents or ICE Agents separated them immediately. The bus ride was about ten minutes long. The CBP Agents or ICE Agents then placed the children in a new immigration detention facility with cells facing across from each other.
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158. E.O., Jr. tried to talk to K.O. to tell her not worry and that she would be out of the cells soon. K.O. asked her brother: "What happened to Mommy?"
159. When E.O., Jr. tried to answer, a CBP Agent or ICE Agent yelled at him and instructed him not to talk to his own sister. Her question went unanswered.
160. K.O. and E.O., Jr. stayed at that facility for two days and two nights. The rooms were freezing. The only blankets they had were silver thermal blankets.
161. Small children, who appeared to be as young as one or two years old, cried on the floor. The older children tried to take care of the young, crying children. Boys and girls were separated by something like a metal fence.
162. At one point, E.O., Jr. looked over at his sister K.O., and she was crying. E.O., Jr. put his hands together and put his head on his hands, pretending to sleep, to try to help soothe K.O. and stop her from crying. But E.O., Jr. felt so helpless that he too started crying.
163. When the children cried, some CBP Agents or ICE Agents insulted them in Spanish, including by shouting at them: "Shut up, you trash!"
164. Once, a CBP Agent or ICE Agent came up to E.O., Jr. and asked how old he was. When he replied that he was seventeen years old, the CBP Agent or ICE Agent said "you are lying" and kicked E.O., Jr. about ten times in the back.
165. The CBP Agents or ICE Agents woke K.O. up to take a shower by pulling her ponytail.
166. Border patrol agents told E.O., Jr. that he was to be removed from this immigration detention facility first. He told the CBP Agents or ICE Agents that he had to wait for his sister. The CBP Agents or ICE Agents said that if he stayed, he would "lose his opportunity." E.O., Jr. thought they meant that he would lose his opportunity to be reunited with
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his father, E.O. E.O., Jr. still refused to leave, unwilling to leave his sister alone. The next night, the CBP Agents or ICE Agents made E.O., Jr. bathe in cold water, change his clothes, and prepare to leave.
167. The CBP Agents or ICE Agents took both E.O., Jr. and K.O. to another immigration detention facility. When E.O., Jr. asked where his mother was, the CBP Agents or ICE Agents told him they had deported his mother.
168. E.O., Jr. and K.O. were placed on an airplane to Michigan, seated separately. They arrived at about 1:00 a.m., and they were told they were going to separate locations. E.O., Jr. asked them to allow him to stay with his sister, but CBP Agents, ICE Agents, or ORR Personnel told E.O., Jr. not to worry and assured him that they would bring K.O. back in the morning.
169. As soon as the siblings were separated, K.O. started to cry. She was taken to a foster family with three other children who had been forcibly separated from their parents at the border. There were two six-year-olds and an eight-year-old.
170. E.O., Jr. stayed in a facility with about eighteen other boys. He attended school in the morning and K.O. was able to see her brother at school. E.O., Jr. was told by ORR Personnel that getting out of the facility would be a terrible, long process.
171. K.O. and E.O., Jr. did not know where their mother was. It bothered E.O., Jr. so terribly that he could not sleep or eat.
172. About five days later, E.O., Jr. was able to call his father, E.O., and tell him where he was being held.
173. E.O., Jr. was told that he had to be vaccinated again, even though he had already been vaccinated, and he was given ten shots by a medical professional and ORR Personnel. K.O.
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was also vaccinated and was given nine shots. L.J. was not there to comfort her daughter during this process.
174. K.O. and E.O., Jr. were finally released and reunited with their father in Massachusetts on June 19, 2018.
175. L.J. spent about eight days in the facility where border patrol took her after her children were taken from her. L.J. recalls speaking with what she believes is an asylum officer on the phone during this time. She was not allowed to call her husband, E.O., for about nine days. Then she was taken to what she believes is the T. Don Hutto Residential Center, an immigration detention facility, in Taylor, Texas, where she was detained for several weeks.
176. L.J. was told by what she believes is a deportation officer in mid-June 2018 that she had been found to have had a credible fear of persecution if she were forced to return to Guatemala.
177. L.J. was finally released on June 26, 2018 and reunited with her family in Massachusetts after that. They had been separated for about five weeks at that point. Needless to say, the family was relieved and joyful.
178. But the trauma caused by this forcible separation endures. The horrible, painful memories still torment K.O., E.O., Jr., L.J. and E.O. K.O. wakes up in the middle of the night, crying, wondering if that mean person will pull her hair again. Whenever L.J. leaves a room, K.O. follows her mother and fears that she will abandon her again.
179. The guilt that L.J. feels as a mother is overwhelming. She feels as if she was unable to protect her children. The trauma that K.O., E.O., Jr., L.J., and E.O. experienced was life-altering, and it will continue to affect their mental and emotional well-being for years to come.
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180. The ordeal that K.O. and E.O., Jr. endured is typical of the experiences suffered by the putative class members.
Individual Plaintiff's Allegations – C.J. 181. F.C. and his eleven-year-old son, C.J., entered the United States in El Paso, Texas on June 17, 2018 seeking asylum in this country. They came to the United States for asylum because organized crime members, who worked in concert with the police in Guatemala, extorted F.C. for money, threatened to kill F.C. and his family, and left them fearing for their lives. 182. When they crossed the United States border, F.C. saw a CBP vehicle and walked towards it. F.C. was holding C.J.'s hand. The CBP Agents handcuffed F.C., and both he and C.J. were driven to a border patrol immigration detention center. 183. When F.C. and C.J. arrived at the detention center, CBP Agents told F.C. that he would be separated from C.J. F.C. felt "devastated" and "destroyed" upon hearing that CBP Agents planned to separate his son from him. F.C. spent two days with C.J. trying to be brave for his son. Internally, F.C. kept thinking that despite his efforts, his son was going to be kidnapped. C.J. cried a lot. F.C. tried to calm him down and told him that F.C. would ask the CBP Agents to let them stay together. 184. The detention facility was very cold. The air conditioner was on the highest setting at all times. F.C. and his son slept on the floor and were given one aluminum blanket to share. F.C. stayed up trying to cover C.J. with his arms. C.J. shivered and constantly complained about the cold. 185. C.J. also complained of hunger. Both days F.C. and C.J. were given one burrito to share, twice a day. F.C. asked for more food to share with C.J. The CBP Agents denied them
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additional food, saying: "You're not here to get fat." When F.C. asked for water they told him to use the sink. This was difficult because there were approximately fifteen people, including six children, and one bathroom.
186. On June 20, 2018, the CBP Agents woke up F.C. and C.J. in the middle of the night and took them to a processing area. They told F.C. that C.J. would stay there while F.C. went to what he believes to be criminal court. The CBP Agents told F.C. that he would be back after criminal court. They told C.J. they would be putting him in another room until F.C. returned. F.C. assumed this would take a very short period of time, and F.C. would soon see C.J.
187. Instead, F.C. did not see his son again until July 26, 2018—36 days later. 188. The CBP Agents handcuffed F.C., took him away, and never returned him to the immigration detention facility where he was held with C.J. F.C. was very worried about C.J. F.C. was held for nine days in a place that he believes was a federal facility because some detainees there were not immigrants. 189. F.C. asked anyone who would listen: "Where is C.J.?" "Where has he been taken?" "How do I get in touch with him?" 190. F.C. knew how scared C.J. must be and F.C. felt heartbroken that he had not protected his son, especially because that was all F.C. had wanted to do by coming to the United States. 191. When F.C. went to criminal court he was told that he was there because he had committed the federal crime of coming into the country illegally. The judge asked F.C. if he wanted to leave C.J. in the United States or take C.J. with him if deported. F.C. felt sheer terror at being deported without C.J. F.C. told the judge that no matter what they decided to do, F.C. wanted C.J. to be with him.
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192. F.C. moved next to a second criminal facility where he stayed for approximately two weeks. After leaving the criminal facility, F.C. was moved to multiple immigration detention facilities. At every detention center, F.C. asked about C.J. F.C. persisted until an employee from one of the detention centers finally arranged for him to speak to C.J. F.C. was never provided an opportunity to be reunited with C.J. after he was transferred back to civil immigration custody.
193. When F.C. finally spoke to C.J. it was only for five minutes and C.J. cried very hard the entire time. F.C. told C.J. not to think about the situation and to play and make new friends. The phone call was heartbreaking because C.J. wanted to know when he would see his father again, but F.C. did not have an answer.
194. On that same day, an employee at the facility asked again if F.C. would authorize C.J. to stay behind if F.C. were to be deported. F.C. said no.
195. At some point the CBP Agents turned F.C. over to ICE Agents. F.C. was very afraid that the ICE Agents would deport C.J. without F.C. F.C. was worried that C.J. would grow up alone with no family. F.C. constantly worried about how C.J. was being treated and whether he was safe.
196. C.J. was held at a facility with many other children similarly separated from their parents. This separation deeply affected C.J.
197. While at the facility, another child hit C.J. in the eye. After C.J. told staff about the assault, he noticed that the child who assaulted him went to see a psychologist or mental health doctor, and then C.J. never saw the child again. That incident made C.J. feel deep fear, because he thought that if he made a mistake, he might disappear too.
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198. At the facility, C.J. was sad and cried a lot because he missed his father. C.J. kept asking the staff when he would see his father again. Although C.J. was told that it would be "soon," the days went by without any change. Eventually, C.J. came to believe he would never see his father again and would be at the facility for many years.
199. C.J. and F.C. were finally reunited on July 26, 2018, while at an immigration facility in Port Isabel, Texas. While the relief and joy they both felt at seeing each other again was overwhelming, the harm that Defendants caused to C.J. during the time that he was separated from his father and in Defendants' custody can never truly be remedied.
200. F.C. tries to assure C.J. that he will be OK, that he is safe, and that F.C. will never leave him again.
201. But C.J. now wakes up with nightmares, something that never happened before Defendants forcibly separated him from his father. Sometimes, C.J.'s nightmares are so bad that he falls out of bed.
202. Defendants' forcible separation of C.J. from his father has caused extreme emotional and psychological harm. The trauma that both C.J. and F.C. experienced was life altering and it will continue to affect their mental and emotional well-being for years to come.
203. The ordeal that C.J. endured is typical of the experiences suffered by the putative class members.
Class Allegations 204. This action is properly maintained as a class action under Fed. R. Civ. P. 23(a) and 23(b)(1) and 23(b)(3). 205. Plaintiffs seek to represent a nationwide class consisting of all minor children nationwide who: enter or have entered the United States at or between designated ports of entry;
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have been or will be separated from a parent or parents by DHS or its sub-agencies (CBP, ICE, or USCIS); and detained in ORR custody, ORR foster care, or CBP or ICE custody without a demonstration in a hearing that the parent is unfit or presents a danger to the child.
206. The class is so numerous that joinder of all members is impracticable. While the exact number of class members is unknown at this time and can only be ascertained through appropriate discovery, based on information disclosed in another pending case and recent government and press reports, the class consists of thousands of children. See, e.g., Ms. L. v. ICE, No. 18-CV -0428-DMS-MDD, Joint Status Report (July 26, 2018) (Doc. No. 159); U.S. Dept. of Health & Human Services, office of Inspector General, Separated Children Placed in office of Refugee Resettlement Care, OEI-BL-18-00511 (Jan. 2019), available at https://oig.hhs.gov/oei/reports/oei-BL-18-00511.pdf.
207. The members of the class are readily ascertainable through Defendants' and government records.
208. There are questions of law or fact common to the class. The class members have all been subjected to the Defendants' forcible separation of migrant children from their parents while in immigration detention, through abusive and unconscionable measures, and the refusal of Defendants to reunite the children with their parents for no legitimate reason. All class members have been forcibly separated without an adequate hearing regarding separation. The common questions of law include whether Defendants' forcible family separation and prolonged seizure violated the class members’ Fourth Amendment rights, their procedural and substantive due process rights, and their rights to equal protection under the Due Process Clause of the Fifth Amendment.
209. Plaintiffs' claims or defenses are typical of the claims or defenses of the Class.
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210. Plaintiffs have no interests that are averse to or which irreconcilably conflict with the other members of the class.
211. Plaintiffs are represented by counsel experienced in class action litigation and, in particular, in litigating civil rights claims involving constitutional and statutory violations, tort claims, and immigration matters. Plaintiffs' counsel has adequate resources to commit to representing the class.
212. Plaintiffs will therefore fairly and adequately protect the interests of the class. 213. This action is properly maintained as a class action under Fed. R. Civ. P. 23(b)(1) because prosecuting separate actions by or against individual class members would create a risk of: (a) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standard of conduct for the party opposing the class; or (b) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests. 214. This action is also properly maintained as a class action under Fed. R. Civ. P. 23(b)(3) because the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and a class action is superior to other available methods for the fair and efficient adjudication of this controversy.
COUNT I Violation of The Fourth Amendment—Protection from Unlawful and Unreasonable
Seizure 215. Plaintiffs incorporate all of the preceding allegations in this First Amended Complaint as if fully set forth here. 216. At all relevant times, all Defendants were acting under color of federal law.
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217. The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. Amend. IV.
218. The Fourth Amendment applies to protect Plaintiffs from unlawful seizures in the United States without probable cause and seizures that endure for an unreasonable length of time, once probable cause justifying a stop or detention ends. See Morales v. Chadbourne, 793 F.3d 208, 215-17 (1st Cir. 2015).
219. Defendants planned, conducted, acquiesced or were willfully blind to Plaintiffs manner of seizure, conducted through the use of threats, coercion, duress, false information, and sudden raids, which Defendants knew or should have known would cause a constitutional injury.
220. Defendants mischaracterized Plaintiffs as UACs, without a plan for reunification of Plaintiffs with their parents and in direct contravention of well-established law governing the release of children detained in immigration custody.
221. Defendants’ conduct set in motion acts which caused Plaintiffs’ seizure to last for an unreasonable duration unsupported by probable cause, and thereby burdened their interest of being in the care and custody of their parents.
222. As a direct and proximate result of Defendants’ conduct, in violation of the Fourth Amendment, the class members have suffered injury, including their interest in being in the care and custody of their parents.
223. Plaintiffs’ protected rights under the Fourth Amendment were well established and apparent at all relevant times prior to and at the time of Defendants’ conduct, including the
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right to be free from seizure through the use of sudden, surprise raids, excessive force, and similar abusive measures.
224. Defendants knew or should have known that they could not continue to keep the children in immigration detention without consent, indefinitely interfere with their right to be in the care and custody of their parents, and refuse to release them into the care and custody of their parents without reasonable justification and once probable cause for such seizures, if any, had ended.
225. Defendants’ conduct was intentional, wanton, malicious, reckless, deliberately indifferent, and oppressive, thus entitling the class members to punitive damages.
COUNT II Violation of Substantive Due Process – Right to Family Integrity 226. Plaintiffs incorporate all of the preceding allegations in this First Amended Complaint as if fully set forth here. 227. At all relevant times, all Defendants were acting under color of federal law. 228. The Due Process Clause of the Fifth Amendment applies to all "persons" on United States soil and therefore applies to Plaintiffs and to all proposed class members. 229. Plaintiffs and all class members have a liberty interest under the Due Process Clause in remaining together as a family and in their parents' care and comfort. 230. The forcible separation of the class members from their parents while in immigration detention violates substantive due process because it furthers no legitimate purpose, much less a compelling governmental interest. 231. The Defendants in this action have adopted, implemented, enforced, condoned, sanctioned, acquiesced to, and encouraged a pattern, practice, or custom of violating the clearly
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established due process rights of the class members by forcibly separating young children from their parents while in immigration detention without justification.
232. Defendants' conduct shocks the conscience and demonstrates their deliberate indifference to the violation of the class members' constitutional right to due process.
233. As a direct and proximate result of the Defendants' due process violations, the class members have suffered harm.
234. Defendants' conduct was intentional, wanton, malicious, reckless, callously indifferent, and oppressive, thus entitling the class members to punitive damages.
COUNT III Violation of Procedural Due Process 235. Plaintiffs incorporate all of the preceding allegations in this First Amended Complaint as if fully set forth here. 236. At all relevant times, all Defendants were acting under color of federal law. 237. The Due Process Clause of the Fifth Amendment applies to all "persons" on United States soil and therefore applies to Plaintiffs and to all proposed class members. 238. The Due Process Clause of the Fifth Amendment prohibits deprivations of life, liberty, or property without constitutionally adequate procedural safeguards, and protects the right to a fair hearing. 239. The forcible separation of the class members from their parents while in immigration detention violates a fundamental liberty interest with no notice or opportunity to be heard. 240. The Defendants in this action have adopted, implemented, enforced, condoned, sanctioned, acquiesced to, and encouraged a pattern, practice, or custom of violating the clearly
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established due process rights of the class members by forcibly separating young children from their parents while in immigration detention without due process of law.
241. Defendants' conduct shocks the conscience and demonstrates their deliberate indifference to the violation of the class members' constitutional right to due process.
242. As a direct and proximate result of the Defendants' due process violations, the class members have suffered harm.
243. Defendants' conduct was intentional, wanton, malicious, reckless, callously indifferent, and oppressive, thus entitling the class members to punitive damages.
COUNT IV Violation of the Fifth Amendment's Equal Protection Guarantee 244. Plaintiffs incorporate all of the preceding allegations in this First Amended Complaint as if fully set forth here. 245. At all relevant times, all Defendants were acting under color of federal law. 246. The Due Process Clause of the Fifth Amendment applies to all "persons" on United States soil and therefore applies to Plaintiffs and to all proposed class members. 247. The Fifth Amendment contains an implicit guarantee of equal protection that forbids any official action that intentionally discriminates on the basis of race, ethnicity, or national origin. 248. Defendants' forcible separation of immigrant children and parents, particularly those from Central and South America, arriving at the Southwestern border and held in immigration detention is unconstitutional because it burdens a fundamental right and was motivated, at least in part, by the Defendants' intentional discrimination based on race, ethnicity,
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or national origin. This intentional discrimination includes bias against immigrants perceived to come from Central or South America.
249. Defendants' forcible separation of children and parents, particularly from Central and South America, arriving at the Southwestern border and held in immigration detention is unconstitutional because it disparately impacts immigrants from Latin America arriving at the border and is motivated by animus and a desire to harm this particular group.
250. The forcible separation of children from their parents is not narrowly tailored to achieve a compelling governmental interest.
251. Alternatively, the discriminatory manner in which Defendants carried out the separation of immigration families in immigration detention is arbitrary and bears no rational relationship to a legitimate federal interest.
252. Defendants' conduct shocks the conscience and demonstrates their deliberate indifference to the violation of the class members' constitutional right to equal protection of the laws.
253. As a direct and proximate result of the Defendants' equal protection violations, the class members have suffered harm.
254. Defendants' conduct was intentional, wanton, malicious, reckless, callously indifferent, and oppressive, thus entitling the class members to punitive damages.
COUNT V Violation of Substantive Due Process – Punishment of Civil Detainees 255. Plaintiffs incorporate all of the preceding allegations in this First Amended Complaint as if fully set forth here. 256. At all relevant times, all Defendants were acting under color of federal law.
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257. The Due Process Clause of the Fifth Amendment applies to all "persons" on United States soil and therefore applies to Plaintiffs and to all proposed class members.
258. Plaintiffs and all class members have a liberty interest under the Due Process Clause in remaining free from punitive conditions during their civil immigration detention.
259. The Defendants intended to punish the class members during their civil immigration detention by forcibly separating the children from their parents, purporting to maintain the separation indefinitely, failing to provide meaningful information to parents or children about one another's location and well-being, subjecting the children to appalling and abusive conditions, and preventing them from reliable and ready access to means of communicating with one another.
260. Regardless of Defendants' intent, the conduct described above is patently excessive in relation to any legitimate objective.
261. Defendants' conduct violates substantive due process because it furthers no legitimate purpose, much less a compelling governmental interest.
262. The Defendants in this action have adopted, implemented, enforced, condoned, sanctioned, acquiesced to, and encouraged a pattern, practice, or custom of violating the clearly established due process rights of the class members through the unlawful conduct described above.
263. Defendants' conduct shocks the conscience and demonstrates their deliberate indifference to the violation of the class members' constitutional right to due process.
264. As a direct and proximate result of the Defendants' due process violations, the class members have suffered harm.
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265. Defendants' conduct was intentional, wanton, malicious, reckless, callously indifferent, and oppressive, thus entitling the class members to punitive damages.
COUNT VI Violation Due Process – Coerced Waiver of Asylum and Other Immigration Claims
266. Plaintiffs incorporate all of the preceding allegations in this First Amended Complaint as if fully set forth here.
267. At all relevant times, all Defendants were acting under color of federal law. 268. The Due Process Clause of the Fifth Amendment applies to all "persons" on United States soil and therefore applies to Plaintiffs and to all proposed class members. 269. Plaintiffs and all class members have an interest under the Due Process Clause in pursuing asylum and other potential immigration claims without being coerced to waive them. 270. Defendants' coercive conditioning reunification of children with their parents upon the parents' waiver of their own and their children's right to asylum and other immigration relief violates the Due Process Clause because these waivers were not knowing, intelligent, or voluntary. 271. Defendants' conduct violates due process because it furthers no legitimate purpose, much less a compelling governmental interest. 272. The Defendants in this action have adopted, implemented, enforced, condoned, sanctioned, acquiesced to, and encouraged a pattern, practice, or custom of violating the clearly established due process rights of the class members through the unlawful conduct described above. 273. Defendants' conduct shocks the conscience and demonstrates their deliberate indifference to the violation of the class members' constitutional right to due process.
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274. As a direct and proximate result of the Defendants' due process violations, the class members have suffered harm.
275. Defendants' conduct was intentional, wanton, malicious, reckless, callously indifferent, and oppressive, thus entitling the class members to punitive damages.
COUNT VII Violation of Substantive Due Process Failure to Provide Adequate Mental Health Services 276. Plaintiffs incorporate all of the preceding allegations in this First Amended Complaint as if fully set forth here. 277. At all relevant times, all Defendants were acting under color of federal law. 278. The Due Process Clause of the Fifth Amendment applies to all "persons" on United States soil and therefore applies to Plaintiffs and to all proposed class members. 279. Plaintiffs and all class members have a liberty interest under the Due Process Clause in receiving adequate medical care, including mental health care, while in the custody of the Defendants. 280. The Defendants' failure to provide adequate and necessary mental health care to the class members after forcibly separating them from their parents violates substantive due process because it furthers no legitimate purpose, much less a compelling governmental interest. 281. Moreover, Defendants were aware of the severe harm that their conduct caused to the mental health of the class members, yet they failed to provide adequate and necessary treatment to them. 282. Defendants' conduct shocks the conscience and demonstrates their deliberate indifference to the violation of the class members' constitutional right to due process.
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283. The Defendants in this action have adopted, implemented, enforced, condoned, sanctioned, acquiesced to, and encouraged a pattern, practice, or custom of violating the clearly established due process rights of the class members by failing to provide adequate mental health care to the class members after forcible separation from their parents.
284. As a direct and proximate result of the Defendants' Due Process violations, the class members have suffered harm.
285. Defendants' conduct was intentional, wanton, malicious, reckless, callously indifferent, and oppressive, thus entitling the class members to punitive damages.
COUNT VIII Conspiracy to Interfere with Civil Rights in Violation of 42 U.S.C. § 1985(3) 286. Plaintiffs incorporate all of the preceding allegations in this First Amended Complaint as if fully set forth here. 287. The Defendants are located in States or Territories of the United States. 288. The Defendants are "persons" for the purposes of 42 U.S.C. § 1985(3). 289. Two or more of the Defendants conspired or furthered a conspiracy to deprive Plaintiffs and class members of equal protection of the laws. 290. The Defendants furthered their conspiracy by, at various times, creating, adopting, implementing, enforcing, condoning, sanctioning, acquiescing to, and encouraging a pattern, practice, or custom of taking children and parents, particularly those from Central and South America, arriving at or between designated ports of entry to the United States into immigration custody and forcibly separating them. 291. The Plaintiffs and the class members include Central and South American children, sharing characteristics of race, ethnicity, and/or national origin, who arrived at the United States border with their parents and were forcibly separated from them by Defendants.
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292. The Defendants were motivated to discriminate against the Plaintiffs and other class members due to their race, ethnicity, and/or national origin.
293. As a direct and proximate result of the Defendants' unlawful conspiracy, the Plaintiffs and other class members have suffered pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses and have been deprived of their constitutionally protected rights to substantive and procedural due process and equal protection.
294. Defendants' conduct was intentional, wanton, malicious, reckless, callously indifferent, and oppressive, thus entitling the Plaintiffs and class members to punitive damages.
295. The Plaintiffs and class members are entitled to recover costs, reasonable attorney's fees, and expert fees under 42 U.S.C. § 1988.
COUNT IX Refusal or Neglect to Prevent or Aid in Preventing Conspiracy to Interfere with Civil Rights in Violation of 42 U.S.C. § 1986 296. The Plaintiffs incorporate all of the preceding allegations in this First Amended Complaint as if fully set forth here. 297. The Defendants are "persons" for the purposes of 42 U.S.C. § 1986. 298. The Defendants possessed knowledge of a conspiracy to injure and interfere with the constitutionally-protected rights of the Plaintiffs and class members in violation of 42 U.S.C. § 1985. 299. The Defendants had the power to prevent or aid in the prevention of such a conspiracy and neglected or refused to do so. 300. As a direct and proximate result of the unlawful conspiracy which the Defendants knew of but neglected or refused to prevent, the Plaintiffs and class members have suffered
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pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of
life, and other nonpecuniary losses.
301. The nature of the relief sought and the harm suffered by the Plaintiffs meets the
jurisdictional requirements and thresholds of this Court.
302. Defendants' conduct was intentional, wanton, malicious, reckless, callously
indifferent, and oppressive, thus entitling the Plaintiffs and class members to punitive damages.
303. The Plaintiffs and class members are entitled to recover costs, reasonable
attorney's fees, and expert fees under 42 U.S.C. § 1988.
WHEREFORE, Plaintiffs K.O. and E.O., Jr., by and through their parents and next
friends, E.O. and L.J, and C.J, by and through his father and next friend F.C., on behalf of
themselves and all others similarly situated, respectfully request that the Court grant the
following relief:
A. Enter judgment declaring this action to be a class action under Fed. R. Civ. P. 23 and certifying Plaintiffs K.O. and E.O., Jr., by and through their parents and next friends, E.O. and L.J, and C.J, by and through his father and next friend F.C., as the class representatives and Plaintiffs' counsel as class counsel;
B. Enter judgment in favor of Plaintiffs and the class, and against Defendants, on all counts of the First Amended Complaint;
C. Enter an order requiring the Defendants to establish a fund in an amount to be determined at trial for the mental health treatment and ongoing mental health monitoring of the class members;
D. Award to Plaintiffs and the class all damages in an amount to be determined at trial sufficient to compensate the class for their injuries, including, but not limited to, emotional pain and suffering, mental anguish, embarrassment, and humiliation;
E. Award to Plaintiffs and the class punitive or exemplary damages as permitted by law;
F. Award to Plaintiffs and the class their attorneys' fees, costs, and interest as permitted by law; and
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Case 4:18-cv-40149-TSH Document 45 Filed 01/29/19 Page 59 of 61 G. Grant such further and other relief as may be just and proper. PLAINTIFFS ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED
DEMAND A TRIAL BY JURY ON ALL CLAIMS AND ISSUES SO TRIABLE
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Respectfully submitted,
K.O. and E.O., Jr., by and through their parents and next friends, E.O. and L.J.; and C.J, by and through his father and next friend F.C.; each individually and on behalf of all others similarly situated, on behalf of themselves and all others similarly situated,
By their attorneys,
/s/ _____________________ Howard M. Cooper (BBO # 543842) Joseph M. Cacace (BBO # 672298) TODD & WELD LLP One Federal Street, 27th Floor Boston, MA 02110 (617) 720-2626 hcooper@toddweld.com jcacace@toddweld.com
Susan B. Church (BBO # 639306) Derege Demissie (BBO # 637544) Heather Yountz (BBO # 669770) Brittanie Allen (BBO # 697561) DEMISSIE & CHURCH 929 Massachusetts Avenue, Suite 01 Cambridge, MA 02139 (617) 319-2399 sbc@demissiechurch.com dd@demissiechurch.com
Jeff Goldman (BBO # 548056) Jesse M. Bless (BBO # 660713) THE LAW OFFICES OF JEFF GOLDMAN LLP 125 Washington Street, Ste. 204 Salem, MA 01970 (781) 704-3897 Jeff@jeffgoldmanimmigration.com Jesse@jeffgoldmanimmigration.com
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David A. Vicinanzo (admitted pro hac vice) Nathan P. Warecki (BBO# 687547) Lauren Maynard (BBO# 698742) NIXON PEABODY LLP Exchange Place 53 State Street Boston, MA 02109 (617) 345-1000 dvicinanzo@nixonpeabody.com nwarecki@nixonpeabody.com lmaynard@nixonpeabody.com Iván Espinoza-Madrigal (admitted pro hac vice) Oren N. Nimni (BBO # 691821) Lawyers for Civil Rights 61 Batterymarch Street, 5th Floor Boston, MA 02110 (617) 988-0624 iespinoza@lawyersforcivilrights.org onimni@laywersforcivilrights.org
Dated: January 29, 2019
CERTIFICATE OF SERVICE I hereby certify that this document filed through the CM/ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) on January 29, 2019.
/s/____________ Lauren Maynard
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 Case 4:18-cv-40149-TSH Document 86 Filed 02/03/20 Page 1 of 15

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

____________________________________________________________

)

K.O. and E.O., Jr., by and through their parents and next friends )

E.O. and L.J., and C.J. by and through his father F.C., on behalf of )

Themselves and all similarly situated individuals,

)

Plaintiffs,

)

)

v.

)

)

)

)

JEFFERSON BEAUREGARD SESSIONS III,

)

former Attorney General of the United States,

)

KIRSTJEN NIELSEN, Secretary of the United States Department of )

Homeland Security, JOHN F. KELLY, White House Chief of Staff, )

STEPHEN MILLER, Senior Advisor to the President,

)

GENE HAMILTON, Counselor to the Attorney General Sessions, )

THOMAS HOMAN, former Director of the Department of

)

United States Department of Customs and Immigration Enforcement, )

RONALD D. VITIELLO, Acting Director of United States

)

Immigration and Customs Enforcement,

)

L. FRANCIS CISSNA, Director of United States Citizenship and )

Immigration Services, KEVIN K. MCALEENAN,

)

Commissioner of United States Customs and Border Protection,

)

ALEX AZAR, Secretary of the United States Department of

)

Health and Human Services; SCOTT LLOYD,

)

Director of the United States Office of Refugee Resettlement;

)

JOHN DOE UNITED STATES CUSTOMS AND BORDER

)

PROTECTION AGENTS, JOHN DOE and JOHN DOE OFFICE )

OF REFUGEE RESETTLEMENT PERSONNEL,

)

Defendants,

)

____________________________________________________________)

CIV.ACT.NO. 18-40149-TSH

MEMORANDUM OF DECISION AND ORDER February 3, 2020
Background
The Plaintiffs are all minor, non-United States citizen children who were forcibly
separated from their parents in immigration detention facilities without benefit of prior legal

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proceedings. This separation was initiated when the parents were referred for criminal prosecution for the misdemeanor offense of illegal reentry under 8 U.S.C.§ 1325(a). These referrals required the parents to be separated from their children and transferred into detention resulting in the children being classified as “unaccompanied.” The separation continued even after the parents were returned to immigration detention or released from custody. Plaintiffs are suing current and former government employees seeking damages in the form of a fund for mental health treatment of the minor class members. More specifically, Plaintiffs assert claims against the Defendants in their individual capacities pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999 (1971) for: violation of their Fourth Amendment right to be free from unlawful and unreasonable seizure (Count I); violation of their Fifth Amendment substantive due process right to family integrity (Count II); violation of their Fifth Amendment procedural due process rights (Count III); violation of their right to equal protection guaranteed by the Fifth Amendment (Docket No. IV); violation of the Fifth Amendment substantive due process by inflicting a punitive conditions on them during their civil immigration detention (Count V); violation of their Fifth Amendment due process rights by coercing conditioning of the reunification of children with their parents upon wavier of the right to asylum and pursuit of other immigration relief (Count VI); and violation of their Fifth Amendment substantive due process rights by failing to provide adequate mental health services (Count VII). Plaintiffs have also asserted statutory claims for conspiracy to interfere with Civil Rights, in violation of 42 U.S.C. §1985(3)(Count VIII); and refusal or neglect to prevent or aid in a conspiracy to interfere with Civil Rights, in violation of 42 U.S.C. § 1986 (Count IX).
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This Memorandum of Decision and Order addresses: (1) Defendants’ Motion to Dismiss (Docket No. 51); (2) Plaintiffs’ Motion for Jurisdictional Discovery (Docket No. 57); (3) Plaintiffs’ Motion For Leave To File Second Amended Class Action Complaint (Docket No. 64); (4) Plaintiff’s Motion To Strike Defendants’ 46 Page Reply Brief (Docket No. 65); and (5) Defendants’ Motion For Leave to Allow Their 46-Page Reply Brief To Remain Filed (Docket No. 69). Defendants’ motion to file a reply brief of 46 pages is granted. Accordingly, Plaintiffs’ motion to strike is denied.1 For the reasons set forth below, Defendants’ motion to dismiss is granted, the Plaintiffs’ motion for jurisdictional discovery is denied and the Court will not rule on the pending motion to amend the complaint.
THE MOTION TO DISMISS The Government has moved to dismiss the First Amended Complaint on the grounds that the Court lacks personal jurisdiction over the them, for improper venue pursuant to 28 U.S.C. § 1406, the Court should refuse to extend Bivens to the claims asserted by Plaintiffs (and therefore, such claims should be dismissed) and/or the Defendants are entitled to qualified or absolute immunity for all claims asserted against them.
Lack of Personal Jurisdiction Plaintiffs have the burden of establishing a prima facie case of personal jurisdiction over the Defendants. To meet this burden, the Plaintiffs “must proffer[] evidence, which, if credited, is sufficient to support findings of all facts essential to personal jurisdiction” and the Court “’must accept the plaintiff’s properly documented) evidentiary proffers as true for the purpose of determining the adequacy of the primal facie jurisdictional showing.’” Phillips v. Prairie Eye
1 While I am granting the Government’s motion to file a brief in excess of 20 pages, I want to note that its argument that the 20 page limit on memorandum filed with the Court set forth in LR.D.Mass. 7.1(b)(4) does not apply to reply briefs is both nonsensical and disingenuous.
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Center, 530 F.3d 22, 26 (1st Cir. 2008)(citation to quoted case omitted). In the First Amended Complaint, Plaintiffs do not allege that the individual Defendants reside, work in, or took any actions against them in Massachusetts. Instead, they assert that all of the Defendants are subject to nationwide service of process pursuant to 28 U.S.C. §1391(e) and Fed.R.Civ.P. 4(k)(1)(C). The Defendants assert that they are not subject to nationwide service of process and the First Amended Complaint must be dismissed because the Court otherwise lacks personal jurisdiction over them.
Where authorized by statute, nationwide service of process allows personal jurisdiction to be predicated upon a defendant’s physical presence anywhere in the United States. The Supreme Court has long held that where plaintiffs file a Bivens’ action against a federal officers/agents for monetary damages, such as in this case, Section 1391(e) does not confer nationwide service of process. Stafford v. Briggs, 444 U.S. 527, 100 S.Ct. 774 (1980). Moreover, neither 42 U.S.C. § 1985 or §1986 authorize nationwide service of process. See Riley v. Cardozo, 3:16-cv-961-J34MCR, 2017 WL 2799900 4 (M.D. Fla. Jun. 28, 2017) and cases cited therein. Accordingly, this Court must look to Fed.R.Civ. P. 4(k)(1)(A) which generally requires that federal district courts exercise personal jurisdiction in accordance with the laws of the state in which they sit:
In federal question cases, the Due Process Clause of the Fifth Amendment … requires only that defendants have minimum contacts with the United States as a whole rather than with a particular state. Nevertheless, for the court to exercise personal jurisdiction, service of process must still be grounded in a federal statute or rule.
[Pursuant to Fed.R.Civ.P. 4(k)(1)(C), a]n out-of-state defendant in a federal question case may properly be served if the federal statute conferring jurisdiction provides for nationwide service of process. However, if a federal statute is silent on nationwide service of process … Fed. R. Civ. P. 4(k)(1)(A) requires that service of process be determined by the state long-arm statute. Wang v. Schroeter, No. CIV.A. 11-10009-RWZ, 2011 WL 6148579, at *4 (D. Mass. Dec. 9, 2011), aff’d (Dec. 11, 2012)(internal citations omitted).
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Pursuant to Fed.R.Civ.P. 4(k)(1)(A), the Massachusetts long arm statute, Mass.Gen.L. ch.
223A, §3 is applied in federal court to obtain personal jurisdictions:
A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s (a) transacting any business in the commonwealth . . .; (c) causing tortious injury by an act or omission in this commonwealth; (d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this commonwealth.
Mass.Gen.L. ch. 223A, § 3(a), (c) & (d). The Massachusetts long arm statute extends to the
fullest extent permitted by the Due Process Clause of the Constitution. Accordingly, the Court
will examine whether exercise of jurisdiction over the Defendants would comport with Due
Process. See Phillips, 530 F.3d at 26.2
2 The parties, in particular the Defendants, focus primarily on whether the Court has personal jurisdiction over the Defendants under the Massachusetts long arm statute. The Court has chosen to focus on whether the exercise of jurisdiction over the Defendants comports with due process. Nevertheless, I want to make clear that Plaintiffs have not proffered sufficient facts to establish a prima facie case for the exercise of jurisdiction over the Defendants under the Massachusetts long arm statute. More specifically, Plaintiffs have not proffered any facts which would support a finding that any Defendant transacts any business within Massachusetts, or “regularly does or solicits business, or engage in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this commonwealth. See Mass.Gen.L. ch. 223A, §3. Moreover, the Plaintiffs have not identified any tortious injury which they suffered in Massachusetts which was caused by an act or omission of any Defendant outside the Commonwealth. Additionally, the Plaintiffs have not identified any harm that Defendants caused them in Massachusetts which they would not have suffered but for Defendants’ contacts with Massachusetts. In making this determination, I have considered that he Plaintiffs understandably suffered emotional trauma and while that emotional trauma, by all accounts, is severe and ongoing, the actual tortious injury occurred outside the commonwealth. Indeed, the Plaintiffs would continue to suffer the emotional trauma regardless of where they were to reside after being released from detention and reunited with their parents. Put another way, Plaintiffs have failed to point to any facts which would support a finding that their claims arise from Defendants’ contacts with Massachusetts and that such contacts were the “but for” cause of their harm, i.e., that the claims related to Defendants’ activities within the commonwealth. Because Plaintiffs’ claims do not arise out of Defendants’ contacts with Massachusetts, I find that they have failed to make a showing that the Massachusetts long arm statute authorizes personal jurisdiction over the Defendants. Moreover, Plaintiffs suggestion in their opposition that personal jurisdiction is proper based on a “conspiracy jurisdiction” theory warrants little discussion. Assuming that the argument was not waived (because it was raised for the first time in their opposition), the assertion is completely devoid of merit. For the remainder of the personal jurisdiction discussion, I will assume that the Plaintiffs have established a prima facie case for this Court to exercise personal jurisdiction under the statute and will examine whether the Defendants have constitutionally sufficient contacts with Massachusetts to support a finding of jurisdiction.
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Case 4:18-cv-40149-TSH Document 86 Filed 02/03/20 Page 6 of 15
This Court may exercise personal jurisdiction over nonresident defendants only when
doing so will “not offend ‘traditional notions of fair play and substantial justice.’ “Int'l Shoe Co.
v. Washington, 326 US. 310, 316, 66 S/Ct/ 154 (1945)(citation to quoted case omitted).
Personal jurisdiction over a defendant can come in the form of general or specific jurisdiction. For general jurisdiction the defendant must have continuous and systematic contacts with the forum state, but the particular cause of action may be unrelated to those contacts. General jurisdiction ‘broadly subjects the defendant to suit in the forum state’s courts in respect to all matters,’ regardless of whether the matter before the court has anything to do with the defendant’s contacts with the state. In this way general jurisdiction is different than specific jurisdiction because specific jurisdiction depends on an ‘affiliatio[n] between the forum and the underlying controversy.’… . [3}
Courts may assert specific jurisdiction over a defendant when it is permissible under both the forum state’s long-arm statute and the Due Process Clause of the United States Constitution.
Bluetarp Fin., Inc. v. Matrix Const. Co., 709 F.3d 72, 79–80 (1st Cir. 2013).
In determining whether specific jurisdiction exists, the Court applies the following three
factors:
(1) whether the claim arises out of or is related to the defendant's in-state activities (“relatedness”); (2) whether the defendant has purposefully availed himself of the benefits and protections of the forum state's laws (“purposeful availment”); and (3) whether the exercise of jurisdiction is reasonable under the circumstances (the “gestalt factors”).
Murphy v. Cent. Falls Det. Facility Corp., No. C.A. 14-203 S, 2015 WL 1969178, at *6 (D.R.I.
Apr. 30, 2015)(citing Bluetarp Fin., Inc., 709 F.3d at 80-83);see also, United States v. Swiss
3 “For an individual, the paradigm forum for the exercise of general jurisdiction is the individual’s domicile.” Daimler AG v. Bauman, 571 U.S. 117, 137, 134 S. Ct. 746, 760 (2014). Plaintiffs have not averred that any of the individual Defendants are domiciled in Massachusetts. Therefore, general jurisdiction for purposes of this case would require that the Defendants engage in continuous and systematic general business contacts that approximate physical presence in Massachusetts. Nothing in Plaintiffs’ submissions suggests the existence of the continuous and systematic types of contact that could serve as a basis for this Court to exercise general jurisdiction over any of the Defendants. Accordingly, the Court will focus on whether the Plaintiffs have established a prima facie basis for the exercise of specific jurisdiction over the Defendants.
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Case 4:18-cv-40149-TSH Document 86 Filed 02/03/20 Page 7 of 15
American Bank, LTD. 191 F.3d 30, 36 (1st Cir. 1999)(constitutional inquiry proceeds in three
steps: relatedness, purposeful availment, and reasonableness). If the Plaintiffs meet their burden
of establishing the first two prongs, the burden shifts to the Defendants to set forth a
“compelling” case that the Court’s exercise of jurisdiction over them would be unreasonable.
An affirmative finding on each of these elements is needed to support a specific jurisdiction finding. Negrón–Torres v. Verizon Communications, Inc., 478 F.3d 19, 24–25 (1st Cir.2007). The
Plaintiffs, who ultimately have the burden of persuading this Court that the exercise of jurisdiction is proper, see Astro-Med, Inc. v. Nihon Kohden America, Inc., 591 F.3d 1, 8 (1st Cir.
2009), assert that the Defendants do not need to be or have been “physically present in
Massachusetts” to establish personal jurisdiction over them-- rather communications to
Massachusetts such as phone calls and/or an “e-mail once or twice” to K.O’s father informing
him that this family had been detained and his child separated from his mother is enough to
satisfy due process. For the reasons set forth below, I disagree.
The Plaintiffs and their parent(s) entered the United States through Texas, where they
were arrested and detained. The Plaintiffs were separated from their parents and remained in
Texas or were sent to Michigan and, ultimately, all came to reside in Massachusetts. More
Specifically:
1. Plaintiffs K.O. (nine years old) and E.O., Jr. (seventeen years old) arrived with their mother, L.J., in Texas on May 19, 2018 seeking asylum after fleeing Guatemala. They were originally detained in Texas and held separately. Conditions were overcrowded and cold. Contact was made with E.O., the father of K.O. and E.O. Jr., in Massachusetts by an unidentified agent; E.O. was told that the children would be separated from their mother, L.J. The Plaintiffs were held in Texas for a number of days, separate from each other and their parents. During this period, the Plaintiffs were verbally harassed and physically assaulted. E.O. Jr. and K.O. were taken to Michigan and placed with different foster families. While in Michigan, E.O. Jr. was able to call his father, E.O., who was in Massachusetts. On June 19, 2018, K.O. and E.O. Jr. were reunited with their father in Massachusetts when personnel from the Office of Refugee Settlement or
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Case 4:18-cv-40149-TSH Document 86 Filed 02/03/20 Page 8 of 15
their agents brought the children from Michigan to Massachusetts. L.J., who had remained in Texas separate from her children, was reunited with the family in Massachusetts on June 26, 2018 K.O. and E.O. Jr. continue to suffer emotional trauma as a result of the forcible separation.
2. Plaintiff, C.J. (eleven years old), arrived with his father, F.C., in Texas on June 17, 2018, seeking asylum after fleeing Guatemala. They were brought to a detention center and told that they would be separated. The conditions were cold and they were made to sleep on the floor with one aluminum blanket to share. They were hungry as the only food they were give was a burrito to share twice each day. After two days, C.J. and his father were separated- F.C. was taken to a different detention facility where he was to be processed in a criminal court. Thereafter, F.C. transferred to multiple different detention facilities. At one of the facilities, an employee allowed F.C. to contact C.J. and speak with him for about five minutes. C.J. was held at a facility with other children who had been separated from their parents; while there, C.J. was hit in the eye by another child. On July 26, 2018, C.J. and F.C. were reunited at a detention facility in Texas. C. J. continues to suffer emotional trauma from the forced separation. 4
Initially, I will address the “purposeful availment” prong which focuses on
whether the Defendants had voluntary contacts with Massachusetts—the contacts must be
deliberate and “proximately result from the actions of the defendant himself” and “must
be of a nature that the defendant could reasonably anticipate being hailed into court” in
Massachusetts. Phillips, 530 F.3d at 27. The Plaintiffs have failed to point to any
deliberate actions directed by any Defendant toward Massachusetts other than a few
phone calls to E.O. and other correspondence from unidentified personnel with E.O.
regarding the status of his children, and the travel of unidentified federal personnel from
Michigan to Massachusetts to deliver E.O. Jr. and K. O. to E.O. Plaintiffs also point out
that Defendants Nielson and McAleenan knew that E.O. was in Massachusetts, a fact
they would have become aware of after E.O. Jr. and K.O. were detained and separated
4 At the time that the First Amended Complaint was filed, C.J. and F.C. lived in Massachusetts. It is not clear when they moved to Massachusetts and other than the allegations of the continued emotional trauma from which C.J. continues to suffer, there are no allegations of fact underlying C.J’s claims which took place in Massachusetts.
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Case 4:18-cv-40149-TSH Document 86 Filed 02/03/20 Page 9 of 15
from L.J. However, the sporadic and minimal contacts cited by the Plaintiffs cannot be
said to be deliberate or purposeful and for the most part were not engaged in by the
Defendants themselves. 5 Therefore, I find that the Plaintiffs have not alleged any facts
or proffered any evidence which make out a prima facie case to support a finding that any
Defendant purposefully availed him or herself of the benefits or protections of the laws of
Massachusetts.
As to relatedness, setting aside the continuing emotional trauma suffered by the
Plaintiffs,6 they have not identified any harm that Defendants caused them in
Massachusetts. See also discussion note 2 supra. Accordingly, it is apparent that
Plaintiffs’ claims do not arise out of Defendants’ contacts with Massachusetts. Put
another way, Plaintiffs have failed to allege any facts or proffer evidence which would
establish a demonstrable nexus between their claims and any Massachusetts based
activities by any of these Defendants. Accord Phillips, 530 F.3d at 27 (There must be
more than just attenuated connection between contacts and claim; defendant’s in-state
conduct must form important, or at least material, element of proof’ in the plaintiff’s
case). Therefore, I find that the Plaintiffs have failed to make out a prima facie case to
5 Plaintiffs seek to attribute the actions and contacts of unknown agents to their superiors. For example, they assert that John Doe agents telephoned and corresponded with E.O. in Massachusetts and conclude that contact by these unknown agents “implicates” the named Defendants who worked with or supervised the John Doe agents. Such indirect contacts do not constitute “purposeful availment.” See Wormley v. United States, 601 F. Supp.2d 27, 34 (D.D.C. 2009)(federal official’s contacts with the forum made in a “supervisory role” do not amount to purposeful availment); Claasen v. Brown, Civ.A. 94-1018 GK, 1996 WL 79490, 2 (D.D.C. Feb. 16,1996)(same); Hill v. Pugh, 75 Fed.Appx.715, 719 (10th Cir. 2003) (“it is not reasonable . . . that federal prison officials may be hauled into court simply because they have regional and national supervisory responsibilities over facilities within the forum state”). Even if the Court were to accept the “contacts by implication” theory espoused by the Plaintiffs, I would not apply it in this case since Plaintiffs have not proffered any evidence which would link any given John Doe to a specific agency sufficient to “implicate” any specific Defendant. Instead, Plaintiffs assertions are based on shear speculation and inuendo.
6 By this I do not mean to minimize the emotional trauma which the Plaintiffs continue to suffer-- that trauma is significant. However, that trauma is the result of alleged conduct by the Defendants which took place outside of Massachusetts and will continue to be suffered no matter where the Plaintiffs reside. That is, it is not an injury which they would have suffered but for Defendants’ contacts with Massachusetts.
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support a finding in their favor on the relatedness prong. That leaves “reasonableness” which requires the Court to analyze the so-called “Gestalt factors.”
The “Gestalt factors” require the Court to consider: (1) the defendant's burden of appearing, (2) the forum state’s interest in adjudicating the dispute, (3) the plaintiff’s interest in obtaining convenient and effective relief, (4) the judicial system’s interest in obtaining the most effective resolution of the controversy, and (5) the common interests of all sovereigns in promoting substantive social policies. Adelson v. Hananel, 510 F.3d 43, 51 (1st Cir. 2007). Application of these factors, which are “intended to aid the court in achieving substantial justice, play a larger role in cases where the minimum contact question is very close.”. Id Thus, “the weaker the plaintiff’s showing on the first two prongs (relatedness and purposeful availment), the less a defendant need show in terms of unreasonableness to defeat jurisdiction.” Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 210 (1st Cir. 1994). I have found that Plaintiffs’ showing on the first two prongs is not merely weak, it is non-existent. Accordingly, it is not necessary for me to address the third prong (reasonableness). Nevertheless, for the sake of completeness, I will do so. The Defendants’ showing under the third prong (that exercise of personal jurisdiction over them would be unreasonable) need not be strong. The Plaintiffs argue that “all five Gestalt factors favor this Court’s exercise of personal jurisdiction.” The Defendants, on the other hand, argue that the Gestalt factors favor a finding of unreasonableness.7 I agree with the Plaintiffs that the second (the forum’s state’s interest in adjudicating the dispute) and third factors (plaintiff’s burden in obtaining convenient and effective relief) favors
7 The Government suggests the Court ignore arguments made by the Plaintiffs for the first time in their opposition, but presumably wants the Court to consider its argument regarding the Gestalt factors made for the first time in its reply brief. Plaintiffs’ discussion of the Gestalt factors was not sprung on the Defendants and it was surprising to see that the Government failed to address these jurisdictional stalwarts in its memorandum in support of its motion to dismiss. Nevertheless, primarily because it is not necessary to the outcome of this issue of specific jurisdiction, I will consider the Government’s arguments.
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Case 4:18-cv-40149-TSH Document 86 Filed 02/03/20 Page 11 of 15
them. However, the remaining factors either lean toward the Defendants or are essentially neutral. More specifically, since none of the Defendants are domiciled here, there would be some inconvenience for them to travel to Massachusetts. Additionally, the Government argues generally that legal policy and practical concerns counsel against making them appear in Massachusetts. However, the Defendants have not pointed to any special or unusual burden they would face in defending the case in this Court and given means “modern travel,” the Court cannot infer any “special or unusual burden” imposed on the Defendants if they were required to appear in Massachusetts. See Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc., 825 F.3d 28, 40 (1st Cir. 2016). Therefore, the first factor, at best, slightly favors the Defendants or is neutral. The second factor (Massachusetts interest in adjudicating the dispute) tips slightly in favor the Plaintiffs: While Massachusetts has a strong interest in giving its citizens a forum “‘for redressing injuries inflicted by out-of-state actors,’” Id. (citation to quoted case omitted), the harm inflicted on the Plaintiffs in this case primarily took place in other jurisdictions. See Ticketmaster, 26 F.3d at 211 (forum’s interests are lessened where defendant’s act not committed in forum). Nonetheless, Plaintiffs continue to suffer emotional trauma while residing in Massachusetts and for that reason, contrary to the Defendants’ argument, it cannot be said that Massachusetts has no interest in adjudicating this dispute. Baskin-Robbins, 825 F.3d at 40 (forum state’s interest need not be exclusive, nor even greater than interest of other state). The fourth (judicial system’s interest in obtaining most effective resolution of the controversy) and fifth (common interests of all sovereigns in promoting substantive social policies) factors are both neutral. As to the fourth factor, ‘[e]ven though Massachusetts courts can effectively administer justice in this dispute, they have no corner on the market.” Id., at 41. As to the fifth factor, while Massachusetts has an interest in providing its citizens with a convenient forum, it’s interest in
11

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adjudicating this dispute which involves grave and substantial federal social policy issues is no greater than any other states’.
At the end of the day, application of the Gestalt factors strongly favors neither side—at most, they marginally favor the Plaintiffs. While their application shows that the exercise of jurisdiction over the Defendants would not be unfair or unreasonable, given Plaintiffs failure to proffer enough evidence to satisfy the relatedness and purposeful availment prongs, specific jurisdiction cannot attach. For these reasons, I find that this Court’s exercise of personal jurisdiction would not comport with due process and therefore, the motion to dismiss is granted.8
Whether Venue is Improper The Court has found that it lacks jurisdiction over the Defendants. I will, nevertheless, address whether venue is appropriate in this district to settle the issue should Plaintiffs appeal my finding of lack of personal jurisdiction (and prevail). The Plaintiff asserts that venue is proper in this district pursuant to 28 U.S.C. §1391(e) which allows the litigation to occur in “any judicial district in which . . . the plaintiffs reside if no real property is involved in the action.” § 1391(e)(1)(C). However, as mentioned in connection with the Court’s discussion of the personal jurisdiction issue, section 1391(e) does not apply to actions for money damages brought against federal officials in their individual capacities, rather it was intended to “permit an action which is essentially against the United States to be brought locally rather than in the District of Columbia as would normally be required if Washington,
8 Plaintiffs have filed a motion seeking to conduct jurisdictional discovery. A plaintiff “who makes out a colorable case for the existence of in personam jurisdiction may well be entitled to a modicum of jurisdictional discovery if the [defendant] interposes a jurisdictional defense.” However, ‘that entitlement is not absolute.’ United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 625 (1st Cir. 2001). In this case, I do not find that Plaintiffs have made “colorable” claim of jurisdiction and therefore, there request for discovery is denied.
12

Case 4:18-cv-40149-TSH Document 86 Filed 02/03/20 Page 13 of 15
D.C., is the official residence of the agency sued.” Gilbert v. DaGrossa, 756 F.2d 1455, 1460 (9th Cir. 1985)(citing to Stafford, 44 U.S. at 539-40, 100 S.C.t 77).
Plaintiffs also contend that venue is proper because a “substantial part of the events or omissions giving rise to the claim occurred” in Massachusetts. See 28 U.S.C. § 1391(b)(2). When considering whether a “substantial part of the events occurred” in Massachusetts, the First Circuit “look[s] not to a single triggering event prompting the action, but to the entire sequence of events underlying the claim” and it does not “focus on the actions of one party.” Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 12 (1st Cir. 2009)(quotation marks, internal citations and citations to quoted case omitted).
Plaintiffs contend that Massachusetts is where a substantial part of the events underlying their claims occurred. However, the record does not support such a finding. The only actions which Defendants allegedly took regarding Massachusetts are that unidentified federal personnel made phone calls and may otherwise have communicated and/or permitted E.O. Jr. and K.O. to communicate on a few occasions with E.O. who was in Massachusetts, and brought E.O. Jr. and K.O. to Massachusetts to reunited them with E.O. when they were released from detention. However, the Plaintiffs’ claims arise from events which occurred when they entered the United States in Texas, and their time at the detention facilities in Texas and in Michigan. It is their continuing emotional trauma from these out-of-jurisdiction events which serve as the only link (claim wise) to Massachusetts—this minimal link is not enough. Since nearly the entirety of the substantive allegations in the First Amended Complaint relate to matters that occurred outside of Massachusetts, venue is improper in this district.
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Case 4:18-cv-40149-TSH Document 86 Filed 02/03/20 Page 14 of 15
TRANSFER OF THE CASE The Plaintiffs requested that if this Court were to determine that venue is improper that rather than dismiss the case, they be permitted to seek a transfer to an appropriate venue pursuant to 28 U.S.C. 1406(a). Because this Court lacks personal jurisdiction over the Defendants, transfer of the case would be pursuant to 28 U.S.C. § 1631 which “allows [the court] to transfer a case over which [it] lack[s] jurisdiction to any other court where the action originally could have been brought, so long as such a transfer is in the ‘interest of justice.’ Narragansett Elec. Co. v. U.S. E.P.A., 407 F.3d 1, 8 (1st Cir. 2005). Thus, it is within the discretion of this Court to transfer this case to the district where venue would be proper, and the defendants would be subject to personal jurisdiction. The Defendants have encouraged this Court to transfer the case to the District of Columbia. The Plaintiffs have not specified where they believe venue would be proper should the Court find that venue is improper. In the interests of justice, this Court will transfer this case to the United States District Court for the District of Columbia.
Conclusion9 1. Defendants’ Motion to Dismiss (Docket No. 51) is granted as the Court lacks personal jurisdiction over the Defendants and venue is improper in this District. This case shall be transferred to the United States District Court for the District of Columbia; 2. Plaintiffs’ Motion for Jurisdictional Discovery (Docket No. 57) is denied; 3. Plaintiff’s Motion To Strike Defendants’ 46 Page Reply Brief (Docket No. 65) is denied; and
9 The Court declines to rule on Plaintiffs’ Motion For Leave To File Second Amended Class Action Complaint (Docket No. 64); that motion shall be left to the discretion of the transferee court.
14

Case 4:18-cv-40149-TSH Document 86 Filed 02/03/20 Page 15 of 15 4. Defendants’ Motion For Leave to Allow Their 46-Page Reply Brief To Remain Filed (Docket No. 69) is granted. So Ordered:
/s/ Timothy S. Hillman TIMOTHY S. HILLMAN DISTRICT JUDGE
15

 
 U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:20-cv-00309-RC

K.O. et al v. SESSIONS, III et al Assigned to: Judge Rudolph Contreras Cases: 1:18-cv-01445-PLF
1:18-cv-01458-PLF 1:18-cv-01536-PLF 1:18-cv-01700-PLF 1:18-cv-02409-PLF Case in other court: USCA, 20-05255
Massachusetts, 4:18-cv-40149 Cause: 42:1981 Civil Rights

Date Filed: 02/05/2020 Date Terminated: 06/23/2020 Jury Demand: Plaintiff Nature of Suit: 555 Prisoner Petition: Prison Condition (Other) Jurisdiction: Federal Question

Plaintiff
K.O. by and through their parents and next friends, E.O. and L.J.

represented by Brian James Whittaker NIXON PEABODY LLP 799 Ninth Street, N.W. Suite 500 Washington, DC 20001 (202) 585-8234 Fax: (866) 741-0536 Email: bwhittaker@nixonpeabody.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David A. Vicinanzo NIXON PEABODY LLP 900 Elm Street Manchester, NH 03101-2031 603-628-4083 Fax: 866-947-0758 Email: dvicinanzo@nixonpeabody.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Howard M Cooper TODD & WELD LLP One Federal Street

Plaintiff
E.O., JR. by and through their parents and next friends, E.O. and L.J.

27th Floor Boston, MA 02110 617-720-2626 Fax: 617-227-5777 Email: hcooper@toddweld.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nathan Warecki NIXON PEABODY LLP 900 Elm Street Manchester, NH 03101-2031 603-628-4077 Fax: 844-390-0697 Email: nwarecki@nixonpeabody.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Michael Cacace TODD & WELD LLP 1 Federal Street Boston, MA 02110 617-720-2626 Email: jcacace@toddweld.com PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth John Nichols NIXON PEABODY LLP 799 Ninth Street, N.W. Suite 500 Washington, DC 20001 (202) 585-8185 Fax: (202) 585-8080 Email: knichols@nixonpeabody.com TERMINATED: 02/28/2020
represented by Brian James Whittaker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff E.O.

David A. Vicinanzo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard M Cooper (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nathan Warecki (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Michael Cacace (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth John Nichols (See above for address) TERMINATED: 02/28/2020
represented by Brian James Whittaker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Vicinanzo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard M Cooper (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff L.J.

Nathan Warecki (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Michael Cacace (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth John Nichols (See above for address) TERMINATED: 02/28/2020
represented by Brian James Whittaker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Vicinanzo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard M Cooper (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nathan Warecki (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Michael Cacace (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth John Nichols

Plaintiff C.J. by and through his father and next friend F.C.
Plaintiff F.C.

(See above for address) TERMINATED: 02/28/2020
represented by Brian James Whittaker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Vicinanzo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard M Cooper (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nathan Warecki (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Michael Cacace (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth John Nichols (See above for address) TERMINATED: 02/28/2020
represented by Brian James Whittaker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Vicinanzo (See above for address) LEAD ATTORNEY

V.
Defendant
JEFFERSON BEAUREGARD SESSIONS, III

PRO HAC VICE ATTORNEY TO BE NOTICED
Howard M Cooper (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nathan Warecki (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Michael Cacace (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth John Nichols (See above for address) TERMINATED: 02/28/2020
represented by Paul Christopher Quast DEPARTMENT OF JUSTICE Torts Branch, Civil Division P.O. Box 7146 Ben Franklin Station Washington, DC 20044 (202) 616-4150 Fax: (202) 616-4314 Email: paul.c.quast@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Hampton Mason UNITED STATES DEPARTMENT OF JUSTICE Torts Branch, Civil Division P.O. Box 7146 Ben Franklin Station

Defendant KIRSTJEN M. NIELSEN
Defendant JOHN F KELLY
Defendant STEPHEN MILLER
Defendant GENE HAMILTON

Washington, DC 20044-7146 (202) 616-4123 Fax: (202) 616-4314 Email: mary.mason@usdoj.gov ATTORNEY TO BE NOTICED
represented by Paul Christopher Quast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Hampton Mason (See above for address) ATTORNEY TO BE NOTICED
represented by Paul Christopher Quast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Hampton Mason (See above for address) ATTORNEY TO BE NOTICED
represented by Paul Christopher Quast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Hampton Mason (See above for address) ATTORNEY TO BE NOTICED
represented by Paul Christopher Quast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Hampton Mason

Defendant THOMAS HOMAN
Defendant RONALD D. VITIELLO
Defendant L. FRANCIS CISSNA
Defendant KEVIN K. MCALEENAN
Defendant

(See above for address) ATTORNEY TO BE NOTICED
represented by Paul Christopher Quast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Hampton Mason (See above for address) ATTORNEY TO BE NOTICED
represented by Paul Christopher Quast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Hampton Mason (See above for address) ATTORNEY TO BE NOTICED
represented by Paul Christopher Quast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Hampton Mason (See above for address) ATTORNEY TO BE NOTICED
represented by Paul Christopher Quast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Hampton Mason (See above for address) ATTORNEY TO BE NOTICED

ALEX M. AZAR, II
Defendant SCOTT LLOYD
Defendant JOHN DOE ICE AGENTS Defendant JOHN DOE CBP AGENTS Defendant JOHN DOE ORR PERSONNEL Amicus IMMIGRATION REFORM LAW INSTITUTE Bradly P. Bennion PO Box 890118 E. Weymouth, MA 02189

represented by Paul Christopher Quast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Hampton Mason (See above for address) ATTORNEY TO BE NOTICED
represented by Paul Christopher Quast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Hampton Mason (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/05/2018

# Docket Text
1 COMPLAINT and Jury Demand (Class Action) against All Plaintiffs Filing fee: $ 400, receipt number 0101-7305438 (Fee Status: Filing Fee paid), filed by E.O., Jr., K.O., F.C., E.O., L.J., C.J.. (Attachments: # 1 Exhibit Ex 1 to Complaint, # 2 Exhibit Ex 2 to Complaint, # 3 Exhibit Ex 3 to Complaint, # 4 Exhibit Ex 4 to Complaint,

09/05/2018 09/05/2018 09/05/2018 09/05/2018 09/06/2018
09/06/2018
09/06/2018

# 5 Exhibit Ex 5 to Complaint, # 6 Exhibit Ex 6 to Complaint, # 7 Exhibit Ex 7 to Complaint, # 8 Civil Cover Sheet Civil Cover Sheet, # 9 Exhibit Attachment A to Civil Cover Sheet, # 10 Exhibit Attachment B to Civil Cover Sheet, # 11 JS45 Category Sheet)(Cacace, Joseph) (Attachment 11 replaced on 9/6/2018) (Jones, Sherry). [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/05/2018)
2 NOTICE of Appearance by Joseph M. Cacace on behalf of C.J., E.O., E.O., Jr., F.C., K.O., L.J. (Cacace, Joseph) [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/05/2018)
3 NOTICE of Appearance by Howard M. Cooper on behalf of C.J., E.O., E.O., Jr., F.C., K.O., L.J. (Cooper, Howard) [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/05/2018)
4 NOTICE of Appearance by Jesse M. Bless on behalf of C.J., E.O., E.O., Jr., F.C., K.O., L.J. (Bless, Jesse) [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/05/2018)
5 NOTICE of Appearance by Susan B. Church on behalf of K.O. (Church, Susan) [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/05/2018)
6 ELECTRONIC NOTICE of Case Assignment. District Judge Timothy S. Hillman assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge David H. Hennessy. (Jones, Sherry) [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/06/2018)
7 Summons Issued as to Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John Doe CBP Agents, John Doe ICE Agents, John Doe ORR Personnel, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Jones, Sherry) [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/06/2018)
8 NOTICE of Appearance by Nathan P. Warecki on behalf of C.J., E.O., E.O., Jr., F.C., K.O., L.J. (Warecki, Nathan) [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/06/2018)

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9 NOTICE of Appearance by Lauren Maynard on behalf of C.J., E.O., E.O., Jr., F.C., K.O., L.J. (Maynard, Lauren) [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/06/2018)
10 MOTION Motion to Proceed Under Pseudonyms and For Protective Order by K.O..(Church, Susan). Added MOTION for Protective Order on 9/10/2018 (Jones, Sherry). [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/07/2018)
11 MOTION Motion to Proceed Under Pseudonyms and For Protective Order by E.O., Jr..(Church, Susan). Added MOTION for Protective Order on 9/10/2018 (Jones, Sherry). [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/07/2018)
12 MEMORANDUM in Support re 11 MOTION Motion to Proceed Under Pseudonyms and For Protective Order filed by E.O., Jr.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Church, Susan) [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/07/2018)
13 MEMORANDUM in Support re 10 MOTION Motion to Proceed Under Pseudonyms and For Protective Order filed by K.O.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Church, Susan) [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/07/2018)
14 SUMMONS Returned Executed Gene Hamilton served on 9/10/2018, answer due 10/1/2018. (Cacace, Joseph) [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/12/2018)
15 SUMMONS Returned Executed Thomas Homan served on 9/10/2018, answer due 10/1/2018. (Cacace, Joseph) (Main Document 15 replaced on 10/11/2018) (Jones, Sherry). [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/12/2018)
16 SUMMONS Returned Executed Ronald D Vitiello served on 9/10/2018, answer due 10/1/2018. (Cacace, Joseph) [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/12/2018)
17 SUMMONS Returned Executed Kevin K. McAleenan served on 9/10/2018, answer due 10/1/2018. (Cacace, Joseph) (Main Document 17 replaced on 10/11/2018) (Jones, Sherry). [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/12/2018)
18 SUMMONS Returned Executed Scott Lloyd served on 9/10/2018, answer due 10/1/2018. (Cacace, Joseph) [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/12/2018)

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19 NOTICE of Appearance by Oren N. Nimni on behalf of C.J., E.O., E.O., Jr., F.C., K.O., L.J. (Nimni, Oren) [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/13/2018)
20 AFFIDAVIT OF SERVICE Executed by E.O., Jr., K.O., F.C., E.O., L.J., C.J.. Stephen Miller served on 9/17/2018, answer due 10/9/2018. Acknowledgement filed by E.O., Jr.; K.O.; F.C.; E.O. ; L.J. ; C.J.. (Attachments: # 1 Exhibit Ex 1 to Aff of Service on S Miller)(Cacace, Joseph) [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/24/2018)
21 AFFIDAVIT OF SERVICE Executed by E.O., Jr., K.O., F.C., E.O., L.J., C.J.. Jefferson Beauregard Sessions, III served on 9/17/2018, answer due 10/9/2018. Acknowledgement filed by E.O., Jr.; K.O.; F.C.; E.O. ; L.J. ; C.J.. (Attachments: # 1 Exhibit Ex 1 to Aff of Service on J B Sessions)(Cacace, Joseph) [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/24/2018)
22 Notice of Service of Process filed by C.J., E.O., E.O., Jr., F.C., K.O., L.J.. Individual(s)/Entities served: Andrew E. Lelling, US Atty for District of Massachusetts. (Attachments: # 1 Exhibit 1 to Aff of Service on Lelling)(Cacace, Joseph) [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/24/2018)
23 Notice of Service of Process filed by C.J., E.O., E.O., Jr., F.C., K.O., L.J.. Individual(s)/Entities served: U.S. Office of Refugee Resettlement. (Attachments: # 1 Exhibit 1 to Aff of Service on US Office of Refugee Resettlement)(Cacace, Joseph) [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/24/2018)
24 Notice of Service of Process filed by C.J., E.O., E.O., Jr., F.C., K.O., L.J.. Individual(s)/Entities served: Jefferson Beauregard Sessions III in his capacity as Attorney General of U.S.. (Attachments: # 1 Exhibit 1 to Aff of Service on Sessions as Ag of US)(Cacace, Joseph) [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/24/2018)
25 Notice of Service of Process filed by C.J., E.O., E.O., Jr., F.C., K.O., L.J.. Individual(s)/Entities served: United States Department of Justice. (Attachments: # 1 Exhibit 1 to Aff of Serv on US DOJ)(Cacace, Joseph) [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/24/2018)
26 AFFIDAVIT OF SERVICE Executed by E.O., Jr., K.O., F.C., E.O., L.J., C.J.. Alex Azar served on 9/24/2018, answer due 10/15/2018. Acknowledgement filed by E.O., Jr.; K.O.; F.C.; E.O. ; L.J. ; C.J.. (Cacace, Joseph) (Main Document 26 replaced on 10/11/2018) (Jones,

09/24/2018
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Sherry). Modified on 10/11/2018 (Jones, Sherry). [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/24/2018)
27 AFFIDAVIT OF SERVICE Executed by E.O., Jr., K.O., F.C., E.O., L.J., C.J.. John F Kelly served on 9/14/2018, answer due 10/5/2018. Acknowledgement filed by E.O., Jr.; K.O.; F.C.; E.O. ; L.J. ; C.J.. (Attachments: # 1 Exhibit 1 to Aff of Serv John F Kelly)(Cacace, Joseph) [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/24/2018)
28 Notice of Service of Process filed by C.J., E.O., E.O., Jr., F.C., K.O., L.J.. Individual(s)/Entities served: US Department of Health and Human Services. (Attachments: # 1 Exhibit 1 to Aff of Service on HHS)(Cacace, Joseph) [Transferred from Massachusetts on 2/5/2020.] (Entered: 09/27/2018)
29 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 10 Motion to proceed under pseudonyms; granting 11 Motion to proceed under pseudonyms ; granting 10 Motion for Protective Order; and granting 11 Motion for Protective Order. (Castles, Martin) [Transferred from Massachusetts on 2/5/2020.] (Entered: 10/03/2018)
30 SUMMONS Returned Executed L. Francis Cissna served on 10/4/2018, answer due 10/25/2018. (Cacace, Joseph) [Transferred from Massachusetts on 2/5/2020.] (Entered: 10/15/2018)
31 SUMMONS Returned Executed Kirstjen Nielsen served on 10/9/2018, answer due 10/30/2018. (Cacace, Joseph) [Transferred from Massachusetts on 2/5/2020.] (Entered: 10/15/2018)
32 MOTION for Hearing (Request for an Initial Scheduling Conference) by C.J., E.O., E.O., Jr., F.C., K.O., L.J..(Cooper, Howard) [Transferred from Massachusetts on 2/5/2020.] (Entered: 11/01/2018)
33 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered denying 32 Motion for scheduling conference. A scheduling conference will be scheduled after the defendants have filed their answers. (Castles, Martin) [Transferred from Massachusetts on 2/5/2020.] (Entered: 11/06/2018)
34 NOTICE of Appearance by Paul C. Quast on behalf of Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello (Quast, Paul) [Transferred from Massachusetts on 2/5/2020.] (Entered: 11/09/2018)

11/09/2018 11/13/2018 12/21/2018 01/08/2019
01/08/2019
01/08/2019 01/16/2019

35 Joint MOTION for Extension of Time to Set Briefing Schedule and Consolidate and Extend Deadlines by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello.(Quast, Paul) [Transferred from Massachusetts on 2/5/2020.] (Entered: 11/09/2018)
36 District Judge Timothy S. Hillman: ORDER entered granting 35 Motion for Extension of Time and setting briefing schedule. Motions to dismiss due by 1/8/19, Oppositions due by 2/22/19, Reply due by 3/29/19. (Castles, Martin) [Transferred from Massachusetts on 2/5/2020.] (Entered: 11/13/2018)
37 Assented to MOTION for Leave to File Excess Pages by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello.(Quast, Paul) [Transferred from Massachusetts on 2/5/2020.] (Entered: 12/21/2018)
38 MOTION to Dismiss for Lack of Jurisdiction , MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ( Responses due by 1/22/2019) by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello.(Quast, Paul) [Transferred from Massachusetts on 2/5/2020.] (Entered: 01/08/2019)
39 MEMORANDUM in Support re 38 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello. (Quast, Paul) [Transferred from Massachusetts on 2/5/2020.] (Entered: 01/08/2019)
40 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 37 Motion for Leave to File Excess Pages. (Castles, Martin) [Transferred from Massachusetts on 2/5/2020.] (Entered: 01/08/2019)
41 MOTION for Leave to Appear Pro Hac Vice for admission of David A. Vicinanzo Filing fee: $ 100, receipt number 0101-7496808 by C.J., E.O., E.O., Jr., F.C., K.O., L.J.. (Attachments: # 1 Exhibit A Declaration of David A. Vicinanzo in Support of Motion for Admission Pro Hac Vice)(Warecki, Nathan) [Transferred from Massachusetts on 2/5/2020.] (Entered: 01/16/2019)

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42 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 41 Motion for Leave to Appear Pro Hac Vice Added David A. Vicinanzo. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Burgos, Sandra) [Transferred from Massachusetts on 2/5/2020.] (Entered: 01/17/2019)
43 First MOTION for Leave to Appear Pro Hac Vice for admission of Ivan Espinoza-Madrigal Filing fee: $ 100, receipt number 01017498399 by C.J., E.O., E.O., Jr., F.C., K.O., L.J..(Nimni, Oren) [Transferred from Massachusetts on 2/5/2020.] (Entered: 01/17/2019)
44 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 43 Motion for Leave to Appear Pro Hac Vice Added Ivan Espinoza-Madrigal. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Burgos, Sandra) [Transferred from Massachusetts on 2/5/2020.] (Entered: 01/18/2019)
45 AMENDED COMPLAINT against All Defendants, filed by C.J., E.O., E.O., Jr., F.C., K.O., L.J.. (Attachments: # 1 Exhibit Ex. 1 to Amended Complaint, # 2 Exhibit Ex. 2 to Amended Complaint, # 3 Exhibit Ex. 3 to Amended Complaint, # 4 Exhibit Ex. 4 to Amended Complaint, # 5 Exhibit Ex. 5 to Amended Complaint, # 6 Exhibit Ex. 6 to Amended Complaint, # 7 Exhibit Ex. 7 to Amended Complaint)(Maynard, Lauren) [Transferred from Massachusetts on 2/5/2020.] (Entered: 01/29/2019)
46 Joint MOTION for Extension of Time to Set Briefing Schedule and Extend Deadlines by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello.(Quast, Paul) Modified on 2/8/2019 (Castles, Martin). [Transferred from Massachusetts on 2/5/2020.] (Entered: 02/07/2019)
47 Joint MOTION for Leave to File Excess Pages by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen,

02/08/2019
02/08/2019 02/08/2019 03/08/2019 03/08/2019 04/02/2019 04/02/2019

Jefferson Beauregard Sessions, III, Ronald D Vitiello.(Quast, Paul) [Transferred from Massachusetts on 2/5/2020.] (Entered: 02/07/2019)
48 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 46 Motion for Extension of Time to File. Extending until March 8, 2019, the time for Defendants to file their anticipated motion to dismiss the First Amended Complaint; (2) extending until April 8, 2019, the time for Plaintiffs to file their opposition to the motion; and (3) permiting the Defendants to file a reply on May 8, 2019. (Castles, Martin) [Transferred from Massachusetts on 2/5/2020.] (Entered: 02/08/2019)
49 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 47 Motion for Leave to File Excess Pages. (Castles, Martin) [Transferred from Massachusetts on 2/5/2020.] (Entered: 02/08/2019)
50 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered finding as moot 38 Motion to Dismiss for Lack of Jurisdiction and finding as moot 38 Motion to Dismiss for Failure to State a Claim. Plaintiff's have filed an amended complaint. (Castles, Martin) [Transferred from Massachusetts on 2/5/2020.] (Entered: 02/08/2019)
51 Second MOTION to Dismiss for Lack of Jurisdiction , Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ( Responses due by 3/22/2019) by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello.(Quast, Paul) [Transferred from Massachusetts on 2/5/2020.] (Entered: 03/08/2019)
52 MEMORANDUM in Support re 51 Second MOTION to Dismiss for Lack of Jurisdiction Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello. (Quast, Paul) [Transferred from Massachusetts on 2/5/2020.] (Entered: 03/08/2019)
53 MOTION for Leave to Appear Pro Hac Vice for admission of CHRISTOPHER J. HAJEC Filing fee: $ 100, receipt number 01017616867 by Immigration Reform Law Institute.(Bennion, Bradly) (Main Document 53 replaced on 4/3/2019) (Burgos, Sandra). [Transferred from Massachusetts on 2/5/2020.] (Entered: 04/02/2019)
54 MOTION for Leave to Appear Pro Hac Vice for admission of JOHN M. MIANO Filing fee: $ 100, receipt number 0101-7617029 by

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04/16/2019 05/08/2019
05/08/2019

Immigration Reform Law Institute.(Bennion, Bradly) [Transferred from Massachusetts on 2/5/2020.] (Entered: 04/02/2019)
55 MOTION for Leave to File Amicus Brief by Immigration Reform Law Institute. (Attachments: # 1 Amicus Brief)(Bennion, Bradly) [Transferred from Massachusetts on 2/5/2020.] (Entered: 04/02/2019)
56 MEMORANDUM in Opposition re 51 Second MOTION to Dismiss for Lack of Jurisdiction Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Leave to File Granted February 8, 2019) filed by C.J., E.O., E.O., Jr., F.C.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Cacace, Joseph) [Transferred from Massachusetts on 2/5/2020.] (Entered: 04/08/2019)
57 MOTION for Discovery Jurisdictional Discovery by E.O., E.O., Jr., K.O., L.J..(Warecki, Nathan) [Transferred from Massachusetts on 2/5/2020.] (Entered: 04/08/2019)
58 Assented to MOTION for Extension of Time to May 8, 2019 to File Response/Reply as to 57 MOTION for Discovery Jurisdictional Discovery by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello.(Quast, Paul) [Transferred from Massachusetts on 2/5/2020.] (Entered: 04/12/2019)
59 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 58 Assented to Motion for Extension of Time to File Response/Reply re 57 MOTION for Discovery Jurisdictional Discovery. Response due by 5/8/2019. (Burgos, Sandra) [Transferred from Massachusetts on 2/5/2020.] (Entered: 04/16/2019)
60 REPLY to Response to 51 Second MOTION to Dismiss for Lack of Jurisdiction Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello. (Quast, Paul) [Transferred from Massachusetts on 2/5/2020.] (Entered: 05/08/2019)
61 Opposition re 57 MOTION for Discovery Jurisdictional Discovery filed by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello. (Attachments: # 1 Exhibit)(Quast, Paul) [Transferred from Massachusetts on 2/5/2020.] (Entered: 05/08/2019)

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62 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 53 Motion for Leave to Appear Pro Hac Vice Added Christopher J. Hajec. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Burgos, Sandra) [Transferred from Massachusetts on 2/5/2020.] (Entered: 05/10/2019)
63 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 54 Motion for Leave to Appear Pro Hac Vice Added John M. Miano. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Burgos, Sandra) [Transferred from Massachusetts on 2/5/2020.] (Entered: 05/10/2019)
64 MOTION for Leave to File Second Amended Class Ation Complaint and Incorporated Memorandum of Law by C.J., E.O., E.O., Jr., F.C.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Cacace, Joseph) [Transferred from Massachusetts on 2/5/2020.] (Entered: 05/14/2019)
65 MOTION to Strike 60 Reply to Response to Motion, by C.J., E.O., E.O., Jr., F.C..(Cacace, Joseph) [Transferred from Massachusetts on 2/5/2020.] (Entered: 05/17/2019)
66 MOTION for leave from Compliance with Service Requirements in Local Rule 15.1 by C.J., E.O., E.O., Jr., F.C..(Cacace, Joseph) [Transferred from Massachusetts on 2/5/2020.] (Entered: 05/17/2019)
67 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 55 Motion for Leave to File Amicus Brief. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. (Castles, Martin) [Transferred from Massachusetts on 2/5/2020.] (Entered: 05/21/2019)
68 ELECTRONIC NOTICE Setting Hearing on Motion 51 Second MOTION to Dismiss for Lack of Jurisdiction Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 65 MOTION to Strike 60 Reply to Response to Motion, , 64 MOTION for Leave to File Second Amended Class Ation Complaint and Incorporated Memorandum of Law, 57 MOTION for Discovery Jurisdictional Discovery, 66 MOTION for leave from Compliance with Service

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Requirements in Local Rule 15.1 : Motion Hearing set for 6/17/2019 at 3:00 PM in Courtroom 2 - Worcester before District Judge Timothy S. Hillman. (Castles, Martin) [Transferred from Massachusetts on 2/5/2020.] (Entered: 05/21/2019)
69 Opposition re 65 MOTION to Strike 60 Reply to Response to Motion, and Motion for Leave to File 46-Page Reply filed by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello. (Quast, Paul) Modified on 5/22/2019 (Jones, Sherry). [Transferred from Massachusetts on 2/5/2020.] (Entered: 05/21/2019)
70 AMICUS BRIEF filed by Immigration Reform Law Institute in Support of Defendants and Dismissal. (Hajec, Christopher) [Transferred from Massachusetts on 2/5/2020.] (Entered: 05/22/2019)
71 NOTICE of Appearance by Mary H. Mason on behalf of Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello (Mason, Mary) [Transferred from Massachusetts on 2/5/2020.] (Entered: 05/24/2019)
72 Opposition re 64 MOTION for Leave to File Second Amended Class Ation Complaint and Incorporated Memorandum of Law filed by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello. (Quast, Paul) [Transferred from Massachusetts on 2/5/2020.] (Entered: 05/28/2019)
73 Opposition re 66 MOTION for leave from Compliance with Service Requirements in Local Rule 15.1 filed by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello. (Quast, Paul) [Transferred from Massachusetts on 2/5/2020.] (Entered: 05/31/2019)
74 Opposition re 66 MOTION for leave from Compliance with Service Requirements in Local Rule 15.1 , 64 MOTION for Leave to File Second Amended Class Ation Complaint and Incorporated Memorandum of Law filed by UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(MacWilliams, Phil) [Transferred from Massachusetts on 2/5/2020.] (Entered: 06/07/2019)
75 NOTICE of Appearance by Thomas G. Ward on behalf of Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott

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06/25/2019

Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello (Ward, Thomas) [Transferred from Massachusetts on 2/5/2020.] (Entered: 06/11/2019)
76 Notice of Supplemental Authorities re 51 Second MOTION to Dismiss for Lack of Jurisdiction Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Attachments: # 1 Supplement)(Quast, Paul) [Transferred from Massachusetts on 2/5/2020.] (Entered: 06/12/2019)
77 Electronic Clerk's Notes for proceedings held before District Judge Timothy S. Hillman: Motion Hearing held on 6/17/2019 re 57 MOTION for Discovery Jurisdictional Discovery filed by L.J., E.O., K.O., E.O., Jr., 66 MOTION for leave from Compliance with Service Requirements in Local Rule 15.1 filed by F.C., E.O., C.J., E.O., Jr., 65 MOTION to Strike 60 Reply to Response to Motion, filed by F.C., E.O., C.J., E.O., Jr., 51 Second MOTION to Dismiss for Lack of Jurisdiction Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Jefferson Beauregard Sessions, III, Thomas Homan, Alex Azar, L. Francis Cissna, John F Kelly, Stephen Miller, Gene Hamilton, Ronald D Vitiello, Kevin K. McAleenan, Kirstjen Nielsen, Scott Lloyd, 64 MOTION for Leave to File Second Amended Class Ation Complaint and Incorporated Memorandum of Law filed by F.C., E.O., C.J., E.O., Jr., Case called, Counsel appear for motion hearing, Court hears arguments of counsel, Court rules taking under advisement 51 Motion to Dismiss for Lack of Jurisdiction; taking under advisement 51 Motion to Dismiss for Failure to State a Claim; taking under advisement 57 Motion for Discovery; taking under advisement 64 Motion for Leave to File Document ; taking under advisement 65 Motion to Strike ; taking under advisement 66 Motion for leave from Compliance with Service Requirements. (Court Reporter: Marianne Kusa-Ryll at justicehill@aol.com)(Attorneys present: Cooper,Cacace,Warecki/Mason,Ward,Quast,Sady) (Castles, Martin) [Transferred from Massachusetts on 2/5/2020.] (Entered: 06/17/2019)
78 Transcript of Motion Hearing held on June 17, 2019, before Judge Timothy S. Hillman. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Marianne Kusa-Ryll at justicehill@aol.com Redaction Request due 7/16/2019. Redacted Transcript Deadline set for 7/26/2019. Release of Transcript Restriction set for 9/23/2019. (Scalfani, Deborah) [Transferred from Massachusetts on 2/5/2020.] (Entered: 06/25/2019)

06/25/2019
10/04/2019 10/08/2019 11/07/2019 11/08/2019 11/20/2019 11/21/2019 02/03/2020

79 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/generalinfo.htm (Scalfani, Deborah) [Transferred from Massachusetts on 2/5/2020.] (Entered: 06/25/2019)
80 Notice of Supplemental Authorities re 51 Second MOTION to Dismiss for Lack of Jurisdiction Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Attachments: # 1 Mejia-Mejia Opinion, # 2 Mejia-Mejia Order)(Quast, Paul) [Transferred from Massachusetts on 2/5/2020.] (Entered: 10/04/2019)
81 Response by K.O. to 80 Notice of Supplemental Authorities, . (Cacace, Joseph) [Transferred from Massachusetts on 2/5/2020.] (Entered: 10/08/2019)
82 Notice of Supplemental Authorities re 69 MOTION for Leave to File (Attachments: # 1 Exhibit Ms. J.P., et al. v. Sessions, et al., slip op., No. 2:18-cv-06081-JAK-SK (C.D. Cal. Nov. 5, 2019)(Demissie, Derege) [Transferred from Massachusetts on 2/5/2020.] (Entered: 11/07/2019)
83 Response by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello to 82 Notice of Supplemental Authorities . (Quast, Paul) [Transferred from Massachusetts on 2/5/2020.] (Entered: 11/08/2019)
84 NOTICE by C.J., E.O., E.O., Jr., F.C., K.O., L.J. Plaintiffs' Notice of Additional Relevant Facts and Evidence (Warecki, Nathan) [Transferred from Massachusetts on 2/5/2020.] (Entered: 11/20/2019)
85 Response by Alex Azar, L. Francis Cissna, Gene Hamilton, Thomas Homan, John F Kelly, Scott Lloyd, Kevin K. McAleenan, Stephen Miller, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, Ronald D Vitiello to 84 Notice (Other) . (Quast, Paul) [Transferred from Massachusetts on 2/5/2020.] (Entered: 11/21/2019)
86 District Judge Timothy S. Hillman: MEMORANDUM OF DECISION AND ORDER entered granting 51 Motion to Dismiss for Lack of Jurisdiction as the Court lacks personal jurisdiction over the Defendants and venue is improper in this District, denying 57 Motion for Jurisdictional Discovery; denying 65 Motion to Strike; and granting 69 Motion for Leave to File reply. This case shall be transferred to the United States District Court for the District of

02/03/2020 02/05/2020 02/05/2020
02/05/2020
02/10/2020 02/10/2020 02/28/2020 02/28/2020 03/13/2020

Columbia. (Castles, Martin) [Transferred from Massachusetts on 2/5/2020.] (Entered: 02/03/2020)
87 Case Electronically transferred to the District of Columbia. (Castles, Martin) Modified on 2/4/2020 (Jones, Sherry). [Transferred from Massachusetts on 2/5/2020.] (Entered: 02/03/2020)
88 Case transferred in from District of Massachusetts; Case Number 4:18cv-40149. Original file certified copy of transfer order and docket sheet received. (Entered: 02/05/2020)
89 NOTICE of Appearance by Paul Christopher Quast on behalf of ALEX AZAR, L. FRANCIS CISSNA, GENE HAMILTON, THOMAS HOMAN, JOHN F KELLY, SCOTT LLOYD, KEVIN K. MCALEENAN, STEPHEN MILLER, KIRSTJEN NIELSEN, JEFFERSON BEAUREGARD SESSIONS, III, RONALD D. VITIELLO (Quast, Paul) (Entered: 02/05/2020)
90 NOTICE OF RELATED CASE by ALEX AZAR, L. FRANCIS CISSNA, GENE HAMILTON, THOMAS HOMAN, JOHN F KELLY, SCOTT LLOYD, KEVIN K. MCALEENAN, STEPHEN MILLER, KIRSTJEN NIELSEN, JEFFERSON BEAUREGARD SESSIONS, III, RONALD D. VITIELLO. Case related to Case No. 18-2409. (Quast, Paul) (Entered: 02/05/2020)
91 NOTICE of Appearance by Kenneth John Nichols on behalf of All Plaintiffs (Nichols, Kenneth) (Entered: 02/10/2020)
92 NOTICE of Plaintiffs' Objection by C.J., E.O., E.O., JR., F.C., K.O., L.J. re 90 Notice of Related Case, (Nichols, Kenneth) (Entered: 02/10/2020)
93 NOTICE of Appearance by Brian James Whittaker on behalf of All Plaintiffs (Whittaker, Brian) (Entered: 02/28/2020)
94 NOTICE OF WITHDRAWAL OF APPEARANCE as to C.J., E.O., E.O., JR., F.C., K.O., L.J.. Attorney Kenneth John Nichols terminated. (Nichols, Kenneth) (Entered: 02/28/2020)
95 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- David A. Vicinanzo, Firm - Nixon Peabody LLP, 900 Elm Street, 14th Floor, Manchester, NH 03101. Telephone No. - 603-628-4000 Filing fee $ 100, receipt number BDCDC-6918230. Fee Status: Fee Paid. by C.J., E.O., E.O., JR., F.C., K.O., L.J. (Attachments: # 1 Exhibit A Declaration, # 2 Text of Proposed Order)(Whittaker, Brian) (Entered: 03/13/2020)

03/13/2020 03/13/2020 03/13/2020 03/13/2020 03/13/2020 03/13/2020

MINUTE ORDER granting 95 Motion for Leave to Appear Pro Hac Vice: Pursuant to Local Civil Rule 83.2(c), it is hereby ORDERED that David A. Vicinanzo is admitted to represent Plaintiffs pro hac vice in this case. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. SO ORDERED. Signed by Judge Rudolph Contreras on 3/13/2020. (lcrc2) Modified event title on 3/23/2020 (znmw). (Entered: 03/13/2020)
96 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Nathan P. Warecki, Firm - Nixon Peabody LLP, 900 Elm Street, 14th Floor, Manchester, NH 03101. Telephone No. 603-628-4000 Filing fee $ 100, receipt number ADCDC-6918506. Fee Status: Fee Paid. by C.J., E.O., E.O., JR., F.C., K.O., L.J. (Attachments: # 1 Exhibit A - Declaration, # 2 Text of Proposed Order)(Whittaker, Brian) (Entered: 03/13/2020)
97 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Lauren Maynard, Firm - Nixon Peabody LLP, Exchange Place, 53 State Street, Boston, MA 02109. Telephone No. 617-345-1000 Filing fee $ 100, receipt number ADCDC-6918767. Fee Status: Fee Paid. by C.J., E.O., E.O., JR., F.C., K.O., L.J. (Attachments: # 1 Exhibit A - Declaration, # 2 Text of Proposed Order)(Whittaker, Brian) (Entered: 03/13/2020)
98 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Howard M. Cooper, Firm - Todd & Weld LLP, One Federal Street, 27th Floor, Boston, MA 02110. Telephone No. 617-720-2626 Filing fee $ 100, receipt number ADCDC-6918816. Fee Status: Fee Paid. by C.J., E.O., E.O., JR., F.C., K.O., L.J. (Attachments: # 1 Exhibit A - Declaration, # 2 Text of Proposed Order)(Whittaker, Brian) (Entered: 03/13/2020)
99 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Joseph M. Cacace, Firm - Todd & Weld LLP, One Federal Street, 27th Floor, Boston, MA 02110. Telephone No. 617-720-2626 Filing fee $ 100, receipt number ADCDC-6918904. Fee Status: Fee Paid. by C.J., E.O., E.O., JR., F.C., K.O., L.J. (Attachments: # 1 Exhibit A - Declaration, # 2 Text of Proposed Order)(Whittaker, Brian) (Entered: 03/13/2020)
MINUTE ORDER granting 96 Motion for Leave to Appear Pro Hac Vice: Pursuant to Local Civil Rule 83.2(c) it is hereby ORDERED that Nathan P. Warecki is admitted to represent Plaintiffs pro hac vice in this case. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. SO ORDERED. Signed by Judge Rudolph Contreras on 3/13/2020. (lcrc2) Modified event title on 3/23/2020 (znmw). (Entered: 03/13/2020)

03/13/2020

MINUTE ORDER granting 97 Motion for Leave to Appear Pro Hac Vice: Pursuant to Local Civil Rule 83.2(c) it is hereby ORDERED that Lauren Maynard is admitted to represent Plaintiffs pro hac vice in this case. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. SO ORDERED. Signed by Judge Rudolph Contreras on 3/13/2020. (lcrc2) Modified event title on 3/23/2020 (znmw). (Entered: 03/13/2020)

03/13/2020

MINUTE ORDER granting 98 Motion for Leave to Appear Pro Hac Vice: Pursuant to Local Civil Rule 83.2(c) it is hereby ORDERED that Howard M. Cooper is admitted to represent Plaintiffs pro hac vice in this case.Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. SO ORDERED. Signed by Judge Rudolph Contreras on 3/13/2020. (lcrc2) Modified event title on 3/23/2020 (znmw). (Entered: 03/13/2020)

03/13/2020

MINUTE ORDER granting 99 Motion for Leave to Appear Pro Hac Vice: Pursuant to Local Civil Rule 83.2(c) it is hereby ORDERED that Joseph M. Cacace is admitted to represent Plaintiffs pro hac vice in this case. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. SO ORDERED. Signed by Judge Rudolph Contreras on 3/13/2020. (lcrc2) Modified event title on 3/23/2020 (znmw). (Entered: 03/13/2020)

03/13/2020

MINUTE ORDER: It is hereby ORDERED that the parties shall appear before the Court by telephone for a status hearing on April 7, 2020 at 11:00 a.m. Once all parties are on one line, they shall jointly call chambers at (202) 354-3520. SO ORDERED. Signed by Judge Rudolph Contreras on 3/13/2020. (lcrc2) (Entered: 03/13/2020)

03/18/2020

Set/Reset Hearings: Telephone Conference set for 4/7/2020 at 11:00 AM in Chambers before Judge Rudolph Contreras. (tj) (Entered: 03/18/2020)

03/18/2020

100 ENTERED IN ERROR.....NOTICE of Appearance by Paul Christopher Quast on behalf of ALEX AZAR, L. FRANCIS CISSNA, GENE HAMILTON, THOMAS HOMAN, JOHN F KELLY, SCOTT LLOYD, KEVIN K. MCALEENAN, STEPHEN MILLER, KIRSTJEN NIELSEN, JEFFERSON BEAUREGARD SESSIONS, III, RONALD D. VITIELLO (Quast, Paul); Modified on 3/18/2020 (ztth). (Entered: 03/18/2020)

03/18/2020

NOTICE OF ERROR re 100 Notice of Appearance; emailed to paul.c.quast@usdoj.gov, cc'd 7 associated attorneys -- The PDF file you

docketed contained errors: The Attorney Pacer login information and the signature on the pleading must match. Docket Entry 100 was entered in error. (ztth, ); Modified text on 3/19/2020 (ztth). (Entered: 03/18/2020)

03/18/2020 101 NOTICE of Appearance by Howard M Cooper on behalf of All Plaintiffs (Cooper, Howard) (Entered: 03/18/2020)

03/18/2020 102 NOTICE of Appearance by Joseph Michael Cacace on behalf of All Plaintiffs (Cacace, Joseph) (Entered: 03/18/2020)

03/19/2020

103 NOTICE of Appearance by Mary Hampton Mason on behalf of ALEX AZAR, L. FRANCIS CISSNA, GENE HAMILTON, THOMAS HOMAN, JOHN F KELLY, SCOTT LLOYD, KEVIN K. MCALEENAN, STEPHEN MILLER, KIRSTJEN NIELSEN, JEFFERSON BEAUREGARD SESSIONS, III, RONALD D. VITIELLO (Mason, Mary) (Entered: 03/19/2020)

03/25/2020 104 NOTICE of Appearance by Nathan Warecki on behalf of All Plaintiffs (Warecki, Nathan) (Entered: 03/25/2020)

03/25/2020 105 NOTICE of Appearance by David A. Vicinanzo on behalf of All Plaintiffs (Vicinanzo, David) (Entered: 03/25/2020)

04/03/2020

MINUTE ORDER concerning status hearing. It is hereby ORDERED that the status hearing scheduled for April 7, 2020 shall be held by telephone as scheduled. The parties should not call chambers, but should follow the call-in instructions that the Court will communicate via email. SO ORDERED. Signed by Judge Rudolph Contreras on 4/3/2020. (lcrc2) (Entered: 04/03/2020)

04/07/2020

Minute Entry for proceedings held before Judge Rudolph Contreras: Telephone Conference held on 4/7/20. Parties inform the court of the status of this action. Supplemental brief due 5/7/2020. Response to Supplemental Brief due 5/21/2020 (Court Reporter: Sara Wick.) (tj) (Entered: 04/07/2020)

05/07/2020

106 SUPPLEMENTAL MEMORANDUM to 72 United States' Opposition to Plaintiffs' Motion to File Second Amended Complaint filed by UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(MacWilliams, Philip); Modified to add docket entry relationship on 5/8/2020 (ztth). (Entered: 05/07/2020)

05/07/2020 107 SUPPLEMENTAL MEMORANDUM to 51 the Individual Defendants Motion to Dismiss and 56 Opposition to Motion for Leave to Amend filed by ALEX M. AZAR, II, L. FRANCIS CISSNA, GENE

HAMILTON, THOMAS HOMAN, JOHN F KELLY, SCOTT LLOYD, KEVIN K. MCALEENAN, STEPHEN MILLER, KIRSTJEN M. NIELSEN, JEFFERSON BEAUREGARD SESSIONS, III, RONALD D. VITIELLO. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Quast, Paul) Modified to add docket entry relationships on 5/8/2020 (ztth). (Entered: 05/07/2020)

05/07/2020

108 SUPPLEMENTAL MEMORANDUM to 92 (i) Plaintiff's Objection to Defendants' Notice of Related Case, (ii) 64 Plaintiff's Motion for Leave to file a Second Amended Complaint, and (iii) 56 Opposition to Defendants' Motion to Dismiss filed by C.J., E.O., E.O., JR., F.C., K.O., L.J.. (Attachments: # 1 Exhibit 1)(Cacace, Joseph) Modified to add docket entry relationships on 5/8/2020 (ztth). (Entered: 05/07/2020)

05/08/2020

NOTICE OF ERROR re 106 Supplemental Memorandum; emailed to phil.macwilliams@usdoj.gov, cc'd 16 associated attorneys -- The PDF file you docketed contained errors: 1. Please do not refile. In future, please link document you are filing to appropirate document(s) in this case. (ztth, ) (Entered: 05/08/2020)

05/08/2020

NOTICE OF ERROR re 107 Supplemental Memorandum; emailed to paul.c.quast@usdoj.gov, cc'd 16 associated attorneys -- The PDF file you docketed contained errors: 1. 1.Please do not refile. In future, please link document you are filing to appropirate document(s) in this case. (ztth, ) (Entered: 05/08/2020)

05/08/2020

NOTICE OF ERROR re 108 Supplemental Memorandum; emailed to jcacace@toddweld.com, cc'd 16 associated attorneys -- The PDF file you docketed contained errors: 1. 1.Please do not refile. In future, please link document you are filing to appropirate document(s) in this case. (ztth, ) (Entered: 05/08/2020)

05/21/2020

109 RESPONSE re 108 Supplemental Memorandum, filed by ALEX M. AZAR, II, L. FRANCIS CISSNA, GENE HAMILTON, THOMAS HOMAN, JOHN F KELLY, SCOTT LLOYD, KEVIN K. MCALEENAN, STEPHEN MILLER, KIRSTJEN M. NIELSEN, JEFFERSON BEAUREGARD SESSIONS, III, RONALD D. VITIELLO. (Quast, Paul) (Entered: 05/21/2020)

05/21/2020

110 RESPONSE re 107 Supplemental Memorandum, 106 Supplemental Memorandum, filed by C.J., E.O., E.O., JR., F.C., K.O., L.J.. (Cacace, Joseph) (Entered: 05/21/2020)

05/21/2020 111 RESPONSE re 108 SUPPLEMENTAL MEMORANDUM filed by UNITED STATES OF AMERICA. (MacWilliams, Philip); Modified event and text on 5/26/2020 (ztth). (Entered: 05/21/2020)

06/23/2020

112 ORDER granting 51 Defendants' Motion to Dismiss; denying 64 Plaintiffs' Motion for Leave to File a Second Amended Complaint; finding as moot 66 Plaintiffs' Motion for Leave from Compliance with the Service Requirements of Local Rule 15.1 of the District of Massachusetts. See document for details. Signed by Judge Rudolph Contreras on 6/23/2020. (lcrc2) (Entered: 06/23/2020)

06/23/2020

113 MEMORANDUM OPINION granting 51 Defendants' Motion to Dismiss; denying 64 Plaintiffs' Motion for Leave to File a Second Amended Complaint; finding as moot 66 Plaintiffs' Motion for Leave from Compliance with the Service Requirements of Local Rule 15.1 of the District of Massachusetts. See document for details. Signed by Judge Rudolph Contreras on 6/23/2020. (lcrc2) (Entered: 06/23/2020)

08/21/2020

114 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 112 Order on Motion for Leave to File,, Order on Motion for Miscellaneous Relief, 113 Memorandum & Opinion, by C.J., E.O., E.O., JR., F.C., K.O., L.J.. Filing fee $ 505, receipt number ADCDC-7495350. Fee Status: Fee Paid. Parties have been notified. (Cacace, Joseph) (Entered: 08/21/2020)

08/24/2020

115 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 114 Notice of Appeal to DC Circuit Court. (ztth) (Entered: 08/24/2020)

08/26/2020

USCA Case Number 20-5255 for 114 Notice of Appeal to DC Circuit Court, filed by F.C., L.J., E.O., E.O., JR., K.O., C.J. (zrdj) (Entered: 08/27/2020)

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 Case 1:20-cv-00309-RC Document 113 Filed 06/23/20 Page 1 of 33

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

K.O., et al., Plaintiffs, v.
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,
Defendants.

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Civil Action No.: 20-309 (RC)

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Re Document Nos.: 51, 64, 66

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MEMORANDUM OPINION
GRANTING DEFENDANTS’ MOTION TO DISMISS; DENYING PLAINTIFFS’ MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT
Plaintiffs in this putative class action are minor non–United States citizen children who,

after arriving in the United States either at or between designated ports of entry, were forcibly separated from their parents by the Department of Homeland Security (DHS) or one of its subagencies, Customs & Border Patrol (CBP), Immigration and Customs Enforcement (ICE), or U.S. Customs & Immigration Services (USCIS). Their case arrived before this Court upon

transfer from the District of Massachusetts. In that court, Plaintiffs had filed their Complaint, ECF No. 1, and their First Amended Complaint (“Am. Compl.”), ECF No. 45, asserting Constitutional and related statutory claims against a number of individual federal officials, including the former Attorney General, the now-former Secretary of DHS, the now-former White

House Chief of Staff, and a Senior Advisor to the President (collectively, with others identified

below, “the individual Defendants”). The individual Defendants moved to dismiss the First Amended Complaint. See Mot. Dismiss, ECF No. 51. While that motion was pending, Plaintiffs sought leave to amend their complaint a second time. They proposed to add the United States as

Case 1:20-cv-00309-RC Document 113 Filed 06/23/20 Page 2 of 33
a defendant and to add eight counts against the United States under the Federal Tort Claims Act (FTCA). Pls.’ Mot. for Leave to File Second Am. Compl. (“Mot. Amend”), ECF No. 64. The individual Defendants opposed this, as did the United States, which appeared specially for the limited purpose of opposing the motion.
Judge Hillman of the District of Massachusetts granted the individual Defendants’ Motion to Dismiss for lack of personal jurisdiction and improper venue. Mem. of Decision and Order (“Mem.”), ECF No. 86. He transferred the case to this District pursuant to 28 U.S.C. § 1631. Id. at 14. Judge Hillman did not address the individual Defendants’ additional arguments that the First Amended Complaint should be dismissed for failure to state a claim, and he explicitly left the Motion to Amend open for this Court to resolve. See id. at 14 & n.9.
The Court has received supplemental briefing from Plaintiffs, from the individual Defendants, and from the United States. The individual Defendants maintain that the First Amended Complaint should be dismissed for failure to state a claim. Plaintiffs’ motion to file a Second Amended Complaint adding claims against the United States is opposed by both the individual defendants and by the United States, which is still not a party. In addition to these pending motions, the individual Defendants have filed a Notice of Related Case, ECF No. 90, which the Court also addresses here. For the reasons stated below, the Court dismisses the First Amended Complaint for failure to state a claim, and denies leave to file a Second Amended Complaint.
I. BACKGROUND This Memorandum Opinion primarily concerns a motion to dismiss for failure to state a claim and a motion to amend a complaint. On a motion to dismiss for failure to state a claim, the Court accepts as true the factual allegations in the complaint and construes them liberally in the
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Plaintiffs’ favor. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). When considering a motion to amend a complaint, the Court evaluates the proposed amended complaint by applying essentially the same standard it would on a motion to dismiss. See James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996) (citing Foman v. Davis, 371 U.S. 178, 181–82 (1962)). Accordingly, for now, the Court accepts as true the Plaintiffs’ factual allegations in their complaints. In recounting the alleged factual background the Court cites to the First Amended Complaint for two reasons. First and foremost, that complaint is operative at this time. Second, the facts of the case pertain much more to the individual Defendants’ arguments in their motion to dismiss the First Amended Complaint for failure to state a claim, whereas the arguments against leave to file a Second Amended Complaint are almost wholly procedural. As described below, the arguments against leave to amend concern the procedural history of the claims against the United States, and these procedural arguments have nothing to do with the claims against the individual defendants. Because of the completely separate sets of arguments on the two motions, there is little risk of confusion, especially considering that the two complaints are substantively identical with regard to the individual Defendants. Compare First Am. Compl., with Proposed Second Am. Compl. (“Prop. Compl.”), ECF No. 64-1 (alleging nearly identical facts, and adding only claims against the United States and acknowledgment of certain of the individual defendants’ departures from positions in the government).
A. Legal and Factual Background Many non-citizens arriving in the United States without immigration documentation are subject to the “expedited removal” proceedings created in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. 104–208, 110 Stat. 3009–546
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(codified as amended in scattered sections of 8 U.S.C.). These procedures were intended “to expedite the removal from the United States of aliens who indisputably have no authorization to be admitted” while allowing those claiming asylum the opportunity to have their claims heard. Grace v. Whitaker, 344 F. Supp. 3d 96, 107 (D.D.C. 2018) (quoting H.R. Rep. No. 104-828 at 209 (1996)). Under the Refugee Act of 1980, any non-citizen “who is physically present in the United States or who arrives in the United States . . . irrespective of [their] status, may apply for asylum.” 8 U.S.C. § 1158. Under “expedited removal” procedures, the Department of Homeland Security may remove an alien from the United States “without further hearing or review[,] unless the alien indicates either an intention to apply for asylum under [8 U.S.C. § 1158] or a fear of persecution” supporting a claim to withholding of removal. Id. § 1225(b)(1)(A)(i). Non-citizens in “expedited removal” are nonetheless eligible to pursue asylum provided they demonstrate a credible fear of persecution. Id. § 1225(b)(1)(B). They are, however, to be “detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.” Id. § 1225(b)(1)(B)(iii)(IV).
Detention of minors is handled differently from detention of adults. The Stipulated Settlement Agreement in Flores v. Reno (“the Flores Agreement”), Am. Compl. Ex. 1, Stipulated Settlement Agreement, Flores v. Reno, No. 85-4544-RJK(Px) (C.D. Cal. Jan. 17, 1997), ECF No. 45-1, is foundational for many later-enacted statutes and regulations governing the detention of minors in immigration detention. It defines a minor as “any person under the age of eighteen (18) years who is detained in the legal custody of the [Immigration and Naturalization Service,]” which was the predecessor to those agencies involved in this litigation. Id. at 4. The Flores Agreement requires the federal government to “place each detained minor in the least restrictive setting appropriate to the minor’s age and special needs” and “to treat all
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minors in its custody with dignity, respect and special concern for their particular vulnerability as minors.” Id. at 7. It also requires that “[w]here the [government] determines that the detention of the minor is not required either to secure his or her timely appearance before the [government] or the immigration court, or to ensure the minor’s safety or that of others, the [government] shall release a minor from its custody without unnecessary delay.” Id. at 9–10. In order of preference, the government is required to release the minor to a parent, a legal guardian, an adult relative, another adult designated by a parent or legal guardian, a licensed program, or another adult individual “when it appears there is no other likely alternative . . . and family reunification does not appear to be a reasonable possibility.” Id. at 9.
In 2002 the Homeland Security Act (“HSA”) transferred a number of INS’s immigration responsibilities to DHS, including to USCIS, CBP, and ICE. Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135. The Office of Refugee Resettlement (ORR) within the Department of Health and Human Services (HHS) was tasked with caring for children lacking “lawful immigration status in the United States” for whom “there is no parent or legal guardian in the United States; or . . . no parent or legal guardian is available to provide care and physical custody.” 6 U.S.C. § 279(a)–(b), (g). These minors are referred to as unaccompanied alien children or “UACs.” See id. The Trafficking Victims Protection Reauthorization Act, passed in 2008 reaffirmed ORR’s responsibilities in caring for UACs. See 8 U.S.C. § 1232(a)(1). Provisions of the TVPRA, as amended, codify the Flores Agreement’s requirements that UACs in ORR custody “shall be promptly placed in the least restrictive setting that is in the best interest of the child,” ideally with “a suitable family member” but also with an organization if no family member is available. Id. § 1232(c)(2)(A). A UAC can be placed with a proposed custodian if HHS “makes a determination that the proposed custodian is capable of providing for the child’s
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physical and mental well-being,” based on, “at a minimum . . . verification of the custodian’s identity and relationship to the child, if any, as well as an independent finding that the individual has not engaged in any activity that would indicate a potential risk to the child.” Id. § 1232(c)(3)(A).
While in DHS custody, individuals may be prosecuted for criminal violation of immigration laws under, among other provisions, Id. § 1325. This statute makes it a crime for any noncitizen to “enter[] or attempt[] to enter the United States at any time or place other than as designated by immigration officers,” to “elude[] examination or inspection by immigration officers,” or to “attempt[] to enter or obtain[] entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact.” Id. § 1325(a).
B. Factual Background 1. Plaintiffs’ Experiences Two named plaintiffs in this putative class action are identified as K.O. and E.O., Jr. According to their pleadings, they arrived in Texas on May 19, 2018, having traveled from Mexico with their mother, identified as L.J. Am. Compl. ¶ 138. K.O. was nine years old at the time and E.O., Jr. was seventeen. Id. ¶ 139. After walking for several hours, the family was stopped by a CBP agent and driven to a border patrol detention facility. Id. ¶¶ 140–43. At the facility, E.O., Jr. was separated from his mother and sister and was taken to a crowded room full of other teenagers. Id. ¶ 144–45. K.O. and L.J. were taken to a different holding cell containing other mothers and younger children. Id. ¶ 147. After “[a]bout twelve to fourteen hours,” L.J. was separated from K.O. and taken to another room with other mothers. Id. ¶ 149. L.J. was placed in criminal custody, indicted for illegal entry, and sentenced to time served after pleading guilty. Id. ¶ 155. She was then returned to civil immigration custody. Id.
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¶ 156. At no point did the government suggest any “abuse, neglect, or unfitness,” as a parent on L.J.’s part, nor was there any suggestion “that L.J. was not acting in the best interests of her children.” Id.
K.O. and E.O., Jr. were placed on a bus together—but not permitted to touch one another—and were taken to a different immigration facility, where they were placed in cells facing one another. Id. ¶ 157. They were not allowed to speak to one another. Id. ¶¶ 157–59. Younger children, including K.O., were crying, as was E.O., Jr. at times. Id. ¶¶ 161–62. E.O., Jr. was accused of lying about his age and was kicked multiple times in the back by a federal agent. Id. ¶ 164. K.O. had her hair pulled by federal agents. Id. at 165.
Federal agents offered E.O., Jr. the opportunity to go to another facility, but he refused to leave his sister alone. Id. ¶ 166. E.O., Jr. and K.O. were both taken to another facility. Id. ¶ 167. Federal agents told E.O., Jr. that his mother had been deported. Id. The siblings were placed on an airplane, were not seated together, and were flown to Michigan. Id. ¶ 168. E.O., Jr. and K.O. were sent to separate locations and federal personnel falsely told E.O., Jr. that they were being separated only temporarily. Id.
K.O. was placed with a foster family, along with other children who had been separated from their parents at the border. Id. ¶ 169. E.O., Jr. was placed in a facility with other boys. Id. ¶ 170. He attended school and was able to see K.O. there. Id. After a few days, E.O., Jr. was able to speak on the phone for the first time with his father, identified as E.O., who lived in Westborough, Massachusetts. Id. ¶ 172; see also id. ¶ 154. E.O., Jr. and K.O. were released and reunited with their father on June 19, 2018. Id. ¶ 174.
L.J. was kept for eight days in the facility where she was placed after losing her children. Id. ¶ 175. She spoke on the phone with a person she believes to have been an asylum officer, but
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was not allowed to call her husband, E.O. Id. She was then taken to another location, which she believes was an immigration detention facility in Taylor, Texas. Id. In mid-June 2018 she was told that she had established a credible fear that she would be persecuted if forced to return to Guatemala. Id. ¶ 176. She was released on June 26, 2018 and reunited with her family in Massachusetts. Id. ¶ 177. All four family members still suffer from trauma caused by the separation of the family, particularly K.O. See id. ¶¶ 178–79.
The third named plaintiff is identified as C.J. Id. ¶ 181. C.J. entered the United States on June 17, 2018 in El Paso, Texas, seeking asylum along with his father, identified as F.C. Id. C.J. was eleven years old. Id. They were seeking asylum based on threats from organized crime working with the police in Guatemala. Id. They approached a CBP vehicle together and were handcuffed and driven to a border patrol detention center. Id. ¶ 182. The facility was very cold and C.J. and F.C. were not given enough food. Id. ¶¶ 184–85.
F.C. was informed that he would soon be separated from his son. Id. ¶ 183. On June 20, 2018 CBP agents woke F.C. and C.J. and took them to a processing area. Id. ¶ 186. F.C. was separated from his son and taken to what he believes was a criminal court. Id. F.C. was not returned to the facility where C.J. was, and did not see him for over a month. Id. ¶¶ 187–88. C.J. was held in a facility with other children separated from their parents. Id. ¶ 196. He was very sad and came to believe he would never see his father again. Id. ¶ 198.
F.C. was taken to a criminal detention facility in which non-immigrants were being held. Id. ¶ 188. From there, he was taken to criminal court and told that he was being prosecuted for illegal entry. Id. ¶ 191. He was given the choice of leaving C.J. in the United States or being deported with C.J., and indicated that he wanted to remain with C.J. under any circumstances. Id. He was then moved to another criminal facility for two weeks, then to additional
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immigration detention facilities. Id. ¶ 192. Eventually an employee at a detention center allowed him to speak with C.J. on the phone for five minutes. Id. ¶¶ 192–93. C.J. cried through the conversation. Id. ¶ 193. At some point thereafter F.C. was turned over to ICE custody. Id. ¶ 195.
The government reunited C.J. and F.C. on July 26, 2018 at an immigration facility in Port Isabel, Texas. Id. ¶ 199. C.J. remains traumatized from the experience of being forcibly separated from his father. Id. ¶¶ 199–202. F.C. also suffered “life altering” trauma and it “will continue to affect [C.J. and F.C.’s] mental and emotional well-being for years to come.” Id. ¶ 202.
2. Defendants’ Alleged Policies Defendants in this case are eleven named individuals and an unknown number of nonidentified ICE Agents, CBP Agents and ORR personnel. See id. at 1. All Defendants are sued in their individual capacities. Id. ¶¶ 17–30. Named Defendants are the following: former Attorney General Jeff Sessions, former DHS Secretary Kirstjen Nielsen, former White House Chief of Staff John Kelly, Senior Advisor to the President Stephen Miller, Counsel to the Attorney General Gene Hamilton, former Director of ICE Thomas Homan, former Acting Director of ICE and former Acting Deputy Commissioner of CBP Ronald D. Vitiello, former USCIS Director L. Francis Cissna, former Acting DHS Secretary and former Commissioner of CBP Kevin McAleenan, HHS Secretary Alex Azar, and former ORR Director Scott Lloyd. Id. All defendants are alleged to have acted under color of federal law within the scope of their duties. Id. ¶ 31. According to Plaintiffs, the Defendants in 2017 instituted a widespread practice of separating migrant children from their parents by criminally prosecuting the parents for illegal entry, or at least referring them for prosecution. Id. ¶ 48. Criminally charging the parents would
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mean transferring them to federal criminal custody, away from their children. Id. ¶ 49. Children were kept in “makeshift detention centers . . . in areas with no beds or mattresses,” and some were abused by detention center employees. Id. ¶ 70. Health care is alleged to have been “often grossly inadequate.” Id. ¶ 71. According to Plaintiffs, “[t]hese conditions of confinement further traumatized the children separated from their parents and traumatized the parents who were separated from their children.” Id. ¶ 72. Government officials are also alleged to have lied to parents and children about why they were being separated or for how long. Id. ¶¶ 65–67.
The children, who were no longer “accompanied” by their parents, would then be designated as UACs and transferred to ORR custody. Id. ¶ 51. Separated children were “not afforded counsel, process, or notice of their parents’ whereabouts.” Id. Classifying children as UACs delayed the reunification process because it meant parents had to apply as potential “sponsors” for their own children in order to get them out of ORR custody. Id. ¶ 75.
According to Plaintiffs, the indefinite separation of children and parents was intended “to demonstrate the agony that parents should expect to experience [should] they dare to enter the United States without authorization with their children.” Id. ¶ 54; see also id. ¶ 79 (“The express purpose of the family separation was to deter immigration to the United States by instilling fear in migrants, particularly those from South and Central American countries.”). Plaintiffs suggest that these separations were made based on migrants’ race or national origin. Id. ¶ 79. They further allege that “[t]he forced separation of families continued well into 2018 and took place without a hearing or any process whatsoever, regardless of the family's circumstances or the needs of the children” and that it “occurred regardless of where or how the family entered, whether they sought asylum, whether they were charged with unlawful entry or whether a family member had passed a credible fear interview.” Id. ¶ 59.
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According to Plaintiffs, Attorney General Sessions announced a “‘zero-tolerance policy’ for illegal entry into the United States in violation of 8 U.S.C. § 1325(a) as pretext for . . . family separations,” when, in fact, Defendants had been separating children and parents before this policy was announced. Id. ¶ 79. Then-ICE Director Homan, then-USCIS Director Cissna, and then-CBP Commissioner McAleenan urged then-DHS Secretary Nielsen to detain and refer for prosecution all parents arriving in the United States with children who had violated the statute. Id. ¶ 80. Officials including Secretary Nielsen and President Trump denied that there was a policy of family separation, distinguishing such a policy from the “zero-tolerance policy.” See id. ¶¶ 82–87. Defendants’ Complaints allege in detail a variety of statements by Defendants and others in the Executive Branch, including the President, that they say demonstrate animus based on race and national origin, and which they say reveal the aim of deterrence that motivated the family separation policy. Id. ¶¶ 91–112.
3. Class Allegations Plaintiffs claim that the experiences endured by K.O., E.O., Jr., and C.J. are typical of the experiences suffered by putative class members. Am. Compl. ¶¶ 180, 203, 209. They seek to represent a class defined as: [A]ll minor children nationwide who: enter or have entered the United States at or between designated ports of entry; have been or will be separated from a parent or parents by DHS or its sub-agencies (CBP, ICE, or USCIS); and detained in ORR custody, ORR foster care, or CBP or ICE custody without a demonstration in a hearing that the parent is unfit or presents a danger to the child. Id. ¶ 205. Based on discovery taken in another pending case, they allege that the class could number in the thousands, and that they are ascertainable through government records. Id. ¶¶ 206–07. They further allege that common questions of law or fact relating to Defendants’ alleged separation of class members from their parents make the case appropriate for class treatment under Federal Rule of Civil Procedure 23(b)(3). Id. ¶ 208. Plaintiffs further allege a
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series of facts based on media reports and reports drafted by child development and psychology experts to establish the nature and extent of the trauma that children who are detained and separated from their parents in these sorts of circumstance are likely to experience. See id. ¶ 113–129.
C. Procedural History Plaintiffs filed their Complaint in the District of Massachusetts on September 5, 2018. Compl., ECF No. 1. It asserted eight counts against the individual defendants, all of which remain in the First Amended Complaint. Compare id. ¶¶ 199–276, with Am. Coml. ¶¶ 215–303. Defendants moved to dismiss, ECF No. 38, and Plaintiffs thereafter amended their complaint, rendering that motion moot. See ECF No. 50 (electronic order denying as moot the motion to dismiss). The First Amended Complaint added one new Count, bringing the total to nine against the individual Defendants: violation of the Fourth Amendment protection against unlawful and unreasonable seizure (Count I—newly added in the First Amended Complaint), violation of substantive due process rights to family integrity (Count II), violation of procedural due process (Count III), violation of the Fifth Amendment guarantee of equal protection (Count IV), violation of substantive due process rights relating to the punishment of civil detainees (Count V), violation of the Due Process Clause of the Fifth Amendment in connection with coerced waiver of asylum and other immigration claims (Count VI), violation of substantive due process rights in connection with the failure to provide adequate mental health services (Count VII), conspiracy to interfere with civil rights in violation of 42 U.S.C. § 1985(3) (Count VIII), and refusal or neglect to prevent or aide in preventing conspiracy to interfere with civil rights in violation of 42 U.S.C. § 1986 (Count IX).
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The Individual Defendants then filed the instant Motion to Dismiss. ECF No. 51. Their memorandum supporting the motion argued for dismissal for lack of personal jurisdiction and for improper venue, as well as for failure to state a claim. Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss. (“Mot. Dismiss Mem.”), ECF No. 52. Before Judge Hillman ruled on the Motion to Dismiss, Plaintiffs filed the still-pending Motion for Leave to File a Second Amended Complaint. Mot. Amend. The proposed Second Amended Complaint would add the United States as a party and would allege eight tort claims against the United States. Prop. Compl. ¶¶ 305–45; see also id. ¶ 10. Then, having realized that the Motion to amend was in violation of a District of Massachusetts local rule, the Plaintiffs filed a Motion for Leave from Compliance with the Service Requirements in Local Rule 15.1. ECF No. 66.
In February of this year, Judge Hillman issued a Memorandum Opinion granting the Motion to Dismiss on the grounds that the District of Massachusetts lacked personal jurisdiction over the Defendants and that venue was improper in that District. Mem. at 14. Judge Hillman did not address the arguments for dismissal based on failure to state a claim. See Mem. He denied the Motion for Jurisdictional Discovery and the Motion to Strike the Defendants’ Reply Brief, and explicitly declined to rule on the Motion for Leave to Amend, leaving it for this Court. Id. at 14 & n. 9. Finally, Judge Hillman transferred the case to this Court pursuant to 28 U.S.C. § 1631, which allows a court lacking jurisdiction over an action to transfer that action to a court where it could have been brought “if it is in the interest of justice” to do so. Id. at 14 (citing 28 U.S.C. § 1631).
When the case arrived before this Court, the individual Defendants filed a Notice of Related Case, ECF No. 90, suggesting that this case might be transferred to the Judge overseeing
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that one. Plaintiffs have filed objections to the Notice of Related Case. Pls.’ Obj. to Defs.’
Defs.’ Notice of Rel. Case, ECF No. 92.1
The Court held a status conference, during which it was agreed that the parties would file
supplemental briefing. The Court has received that supplemental briefing, from the Plaintiffs,
the individual Defendants, and the United States, which address the Motion for Leave to Amend,
the arguments that the Complaint should be dismissed for failure to state a claim, and the related
case issue. See Supp. to the U.S.’s Opp’n to Pls.’ Mot. for Leave to file a Second Am. Compl.
(“U.S. Supp.”), ECF No. 106; Supp. Br. in Supp. of the Individual Defs.’ Mot. to Dismiss and
Opp’n to Mot. for Leave to Amend (“Defs.’ Supp.”), ECF No. 107; Pls.’ Supp. Br. (“Pls.’
Supp.”), ECF No. 108. The Court has also received responsive briefing from all three groups.
See Resp. to Pls.’ Supp. Mem. (“Defs.’ Resp.”), ECF No. 109; Pls.’ Resp. to Supp. Brs. (“Pls.’
Resp.”), ECF No. 110; Resp. to Pls.’ Supp. to Mot. for Leave to File a Second Am. Compl.
(“U.S. Resp.”), ECF No. 111. The Court is now appraised of the parties’ respective positions on
all pending motions, and the motions are ripe for decision.
1 Upon review, the Court did not find the related case identified by Defendants to be sufficiently connected to this one to warrant transfer to a different judge of this Court. Civil cases are deemed related in this Court when they “involve common issues of fact” or “grow out of the same event or transaction,” among other alternatives not relevant here. LCvR 40.5(a)(3). If related cases are noted after both cases have been assigned, it is up to the discretion of the judge with the later-assigned case whether to transfer it to the judge with the earlier-assigned case. LCvR 40.5(c)(2) (“the judge having the later-numbered case may transfer” (emphasis added)); see also LCvR 40.5(c)(3) (“Where a party objects to a designation . . . the matter shall be determined by the judge to whom the case is assigned.”). The purportedly related case here, Ms. Q v. U.S. Immigration & Customs Enforcement, No. 18-2409 (D.D.C.), is quite different from the instant action. It is an individual action, not a class action like this case, and brings different kinds of claims against only a subset of the defendants being sued here. While it involves some common issues of fact, those facts concern nationwide government policies that could be shared between any number of cases. Further, Ms. Q is currently stayed, with a motion to dismiss as moot held in abeyance. See Mem. Op. and Order, Ms. Q, No. 18-2409 (D.D.C. Nov. 21, 2019), ECF No. 45. A transfer would therefore not benefit judicial economy in any meaningful way. Accordingly, the Court declines to transfer this case.
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II. LEGAL FRAMEWORK The Federal Rules of Civil Procedure require that a complaint contain “a short and plain statement of the claim” in order to give the defendant fair notice of the claim and the grounds upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's ultimate likelihood of success on the merits, but rather tests whether a plaintiff has properly stated a claim for which relief can be granted. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514–15 (2002). It is not necessary for the plaintiff to plead all elements of her prima facie case in the complaint. See id. at 511–14; Bryant v. Pepco, 730 F.Supp.2d 25, 28–29 (D.D.C. 2010). Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This means that a plaintiff's factual allegations “must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555–56 (citations omitted); see also Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 70 (D.C. Cir. 2015) (requiring that a Title VII plaintiff allege “facts that, taken as true, render his claim of retaliation [or discrimination] plausible”). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not accept a plaintiff's legal conclusions as true, see id., nor must a court presume the veracity of the legal conclusions that are couched as factual allegations, see Twombly, 550 U.S. at 555. “In determining whether a complaint fails to state a claim, [the Court] may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the
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complaint and matters of which [the Court] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
Federal Rule of Civil Procedure 15(a) permits a plaintiff to amend a complaint once as a matter of course within 21 days of serving it or within 21 days of the filing of a responsive pleading. See Fed. R. Civ. P. 15(a)(1). Otherwise, a plaintiff may amend a pleading only with the opposing party’s written consent—which has been denied in this case—or by the Court’s leave. Fed. R. Civ. P. 15(a)(2). Rule 15 instructs courts to “freely give leave when justice so requires.” Id.; see also Belizan v. Hershon, 434 F.3d 579, 582 (D.C. Cir. 2006) (explaining that Rule 15 “is to be construed liberally”). Importantly, “[t]he decision to grant or deny leave to amend . . . is vested in the sound discretion of the trial court.” Commodore–Mensah v. Delta Air Lines, Inc., 842 F. Supp. 2d 50, 52 (D.D.C. 2012) (citing Doe v. McMillan, 566 F.2d 713, 720 (D.C. Cir. 1977)). Generous standard notwithstanding, courts may deny leave to amend for such reasons as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). “Amendments that do not radically alter the scope and nature of the action . . . are especially favored.” United States ex rel. Westrick v. Second Chance Body Armor, Inc., 301 F.R.D. 5, 8 (D.D.C. 2013) (quoting Estate of Gaither ex rel. Gaither v. District of Columbia, 272 F.R.D. 248, 252 (D.D.C. 2011)). “Courts may deny a motion to amend a complaint as futile . . . if the proposed claim would not survive a motion to dismiss.” James Madison Ltd., 82 F.3d at 1099 (citing Foman, 371 U.S. at 181–82). Accordingly, in determining the futility of amendment, the Court applies the same standard it applies in resolving a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Id.
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III. ANALYSIS A. Motion to Dismiss Plaintiffs argue that the individual Defendants’ arguments in favor of dismissal for failure to state a claim are no longer ripe for decision because Judge Hillman already ruled on that motion. Pls.’ Supp. at 13. This is contrary to the parties’ agreement with the Court in their teleconference that the remaining arguments on the Motion would be addressed in the parties supplemental briefing. The Court suspects Plaintiffs did not forget this, as they devoted two dozen pages to the merits of these arguments in their supplemental briefing. See id. at 14–37. The issues have been fully briefed—in two different courts now—and will be resolved here in the interest of efficiency. See Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016) (“[D]istrict courts have the inherent authority to manage their dockets and courtrooms with a view toward the efficient and expedient resolution of cases.”).
1. Bivens Claims Plaintiffs’ claims against the individual defendants are the type of claims for damages against federal agents and officials acting under color of federal authority that the Supreme Court first authorized under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the Supreme Court held that federal agents acting under color of federal authority who commit an unconstitutional search or seizure could be held liable as individuals for money damages. Bivens, 403 U.S. at 397. In Davis v. Passman, 442 U.S. 228 (1979), and Carlson v. Green, 446 U.S. 14 (1980), the Supreme Court extended the Bivens cause of action to allow for damage claims under the Fifth and Eighth Amendments. Carlson, 446 U.S. at 20 (allowing a federal prisoner to bring an Eighth Amendment claim for failure to provide adequate medical treatment); Davis, 442 U.S. at 230 (allowing a former congressional staffer to bring a Fifth Amendment claim for dismissal based on sex). Since then, the Court has
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declined to extend Bivens and to find new implied damages remedies ten times, including earlier this year in Hernandez v. Mesa, 140 S. Ct. 735, 747 (2020), and in the 2017 case Ziglar v. Abbasi, 137 S. Ct. 1843, 1863 (2017). See also Abassi, 137 S. Ct. at 1857 (collecting the eight additional cases).
A court faced with a claim that would extend Bivens and to recognize new implied constitutional cause of actions must undertake “a two-step inquiry.” Hernandez, 140 S. Ct. at 743. First, the court must “inquire whether the request involves a claim that arises in a ‘new context’ or involves a ‘new category of defendants’” from those in any of the three Supreme Court decisions that did recognize Bivens actions. Id. (quoting Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)). Importantly, “[a] claim may arise in a new context even if it is based on the same constitutional provision as a claim in a case in which a damages remedy was previously recognized.” Id. If the claim would extend Bivens to a new context, the court must then “ask whether there are any ‘special factors that counsel hesitation’ about granting the extension.” Id. (quoting Abassi, 137 S. Ct. at 1857 (internal quotations and alterations omitted)). This involves evaluating “whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” Abassi, 137 S. Ct. at 1857–58. When one or more “special factor[s]” have provided “reason to pause before applying Bivens in a new context or to a new class of defendants,” the Supreme Court has “reject[ed] the request.” Hernandez, 140 S. Ct. at 743. Finally, “if there is an alternative remedial structure present in a certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action.” Abassi, 137 S. Ct. at 1858; see also Hernandez, 140 S. Ct. at 750 (“Congress’s decision not to provide a judicial remedy does not compel [the courts] to step into its shoes.” (emphasis added)).
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The D.C. Circuit has not addressed a Bivens claim since Hernandez v. Mesa, but has issued two precedential opinions postdating Ziglar v. Abbasi in which it declined an opportunity to extend Bivens. Loumiet v. United States, 948 F.3d 376 (D.C. Cir. 2020); Liff v. Office of the Inspector Gen. for U.S. Dep’t of Labor, 881 F.3d 912 (D.C. Cir. 2018). In Liff v. Office of the Inspector General for U.S. Department of Labor, a government contractor claimed that Department of Labor officials had violated his Fifth Amendment rights to Due Process by issuing erroneous reports about him and his business. Liff, 881 F.3d at 914–15. No Bivens remedy was available in this new context because Congress had provided a number of alternative remedies available for disputes between the government and its contractors. Id. at 915. More recently, in Loumiet v. United States, a lawyer claimed that the Office of Comptroller of Currency had carried out a retaliatory prosecution against him in violation of his First Amendment rights.2 Loumiet, 948 F.3d at 378–79. This was “clearly . . . a new Bivens context,” and the Circuit saw special factors, including again the availability of alternative remedies. Id. at 382–83; see id. at 384 (discussing provisions in the Financial Institutions Reform, Recovery, and Enforcement Act that would have allowed the Plaintiff “meaningful remedies” (quoting Bush v. Lucas, 462 U.S. 367, 368 (1983))).
The first seven claims brought by Plaintiffs in their Amended Complaint are potential Bivens claims, each based in the Fourth or Fifth Amendment. Plaintiffs seem to concede that some of these present new Bivens contexts, but argue that “[a]t least three” do not: “the Fourth Amendment claim for unreasonable seizure; the Fifth Amendment claim for violation of the equal protection guarantee; and the Fifth Amendment substantive due process claim based on the
2 He had also brought Fifth Amendment Bivens claims but these were not before the Circuit on appeal after Abbasi. See Loumiet, 948 F.3d at 379.
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right to adequate health care.” Pls.’ Mem. of Law in Opp’n to Defs.’ Mot. Dismiss (“Opp’n”) at 27, ECF No. 56; see also Pls.’ Supp. at 14 (same). The Court disagrees and thinks all seven present new contexts. “A claim may arise in a new context even if it is based on the same constitutional provision as a claim in a case in which a damages remedy was previously recognized,” as these three claims are. Hernandez, 140 S. Ct. at 743.
It is unclear what cases Plaintiffs think could have established a Bivens action in this context, other than the original trilogy of Bivens, Davis, and Carlson. They cite two out-ofCircuit cases, and one from this Court that allowed the amendment of a complaint in order to properly frame a Bivens claim, but which said nothing about whether such a claim would actually be viable. Pls.’ Supp. at 14–15 (citing Doe v. Sessions, No. 18-cv-4, 2018 WL 6540554, at *2 (D.D.C. Dec. 12, 2018)). Neither Bivens, Davis, nor Carlson dealt with the rights of noncitizens in immigration detention. In Hernandez v. Mesa, the Supreme Court found that the case presented a new context with only a fairly brief analysis, observing that it was “glaringly obvious” the cross-border shooting of a Mexican teenager by a Border Patrol agent involved a “new” and “meaningfully different” context from an unlawful arrest and search in New York City (Bivens) or sex discrimination on Capitol Hill (Davis). Hernandez, 140 S. Ct. at 743–44. Carlson arguably is somewhat closer to Count VII in this case, as it concerned medical treatment for a person in federal custody, but immigration detention is a different context from the federal prison system. None of the three established contexts for Bivens claims address the rights of noncitizens, or of minors. Whether this case presents a new context is not a close call. To find otherwise would be to say that the Court need not even consider what special factors might counsel hesitation—and that is clearly not the case. Accordingly, the Court proceeds to the next step in the analysis.
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A number of special factors counseling hesitation are present here. In another case challenging the executive branch’s alleged family separation policy for undocumented immigrants, Judge Friedman identified three such factors. Mejia-Mejia v. ICE, No. 18-cv-1445, 2019 WL 4707150, at *4–5 (D.D.C. Sept. 26, 2019). First, “Bivens suits are not the appropriate mechanism to litigate objections to general government policies.” Id. at *4 (citing Correctional Servs. Corp., 534 U.S. at 74). Recognized Bivens claims “have generally been made against individuals . . . who have engaged in some personal misconduct in a direct and particularized interaction with a plaintiff, not against individuals who have applied a general policy that affected plaintiff and others in similar ways.” Id. A challenge to a coordinated policy organized from the top of the Executive Branch across several departments is a different kind of lawsuit, and not one that Bivens has been used for in the past. See id. at *4–5. In addition, this Court shares Judge Friedman’s concerns that challenging Executive Branch policies through Bivens actions could require discovery that “dampen[s] the candor of conversations and advice rendered by officials within the executive branch.” Id. at *5; see also Abbasi, 137 S. Ct. at 1858 (“[T]he decision to recognize a [Bivens] damages remedy requires an assessment of its impact on governmental operations systemwide.”).
Plaintiffs dispute this characterization of their claims. They argue that the claims in Mejia-Mejia challenged “broad immigration policy decisions” whereas theirs are focused on individual conduct. Pls.’ Resp. at 7 (quoting Mejia-Mejia, 2019 WL 4707150, at *4). This supposed distinction is unavailing. It is true that Judge Friedman, and not the Plaintiffs in MejiaMejia, characterized the claims at issue as “propos[ing] that senior officials should be individually liable for broad immigration policy decisions,” Mejia-Mejia, 2019 WL 4707150, at *4, but the putative Bivens claims in that case were not substantively different from those here.
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They were claims against Attorney General Sessions and ORR Director Lloyd—both Defendants here— and other agency officials in their individual capacities for compensatory and punitive damages. See id. at *2. The conduct challenged and the legal theory was the same. The Plaintiffs here would reach even further into Executive Branch deliberations because they have named a former White House Chief of Staff and a Senior Advisor to the President as Defendants. The conversations and advice at issue here are closer to the office of the President and, even without considering the substantive law regarding whether they would be privileged or discoverable, they give the Court more reason to pause before allowing a Bivens action that could reach them.
Plaintiffs also explain that their First Amended Complaint “clearly distinguishes between the ‘zero tolerance policy’ for immigration prosecutions and the unnecessary and unlawful forcible separation of children from their families.” Pls.’ Supp. at 19 (citing Am. Compl. ¶ 82). The Court does not see what difference this makes when it comes to the concern that allowing a Bivens action would require sensitive discovery relating to executive branch policymaking. Considering the class nature of the claims and the high ranks of the officials being sued, the Court does not see how prosecution of these claims could avoid looking into policymaking at the highest levels—indeed that kind of policymaking is what the Amended Complaint describes.
Another special factor identified by Judge Friedman in Mejia-Mejia is also relevant here. As in Mejia-Mejia, this suit “challenges powers that are already subject to extensive Congressional action” through the immigration code, and concerns the exercise of prosecutorial discretion by the Attorney General. Mejia-Mejia, 2019 WL 4707150, at *5 (citing Fiallo v. Bell, 430 U.S. 787, 792 (1977) (noting Congress’s extensive power over immigration)). The Supreme Court later made a related point in Hernandez, observing in the analogous context of
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extraterritorial claims brought by foreign nationals that “Congress . . . has authority in the field” but has “le[ft] the resolution of [such] claims brought by foreign nationals to executive branch officials and the diplomatic process.” Hernandez, 140 S. Ct. at 740–50. Here, too, the Court sees “reason to pause” before creating a Constitutional cause of action for claims about the ways in which the Executive Branch operated within a statutory framework set by Congress. Plaintiffs argue that there has been no “‘explicit congressional declaration’ that a damages remedy is unavailable.” Pls.’ Supp. at 20 (quoting Bivens, 403 U.S. at 397). This argument misunderstands the doctrine. An “explicit congressional declaration” of that sort would be an independent ground for declining to extend Bivens, but is not necessary for the “special factors” analysis to prevent extension for other reasons. See Spagnola v. Mathis, 859 F.2d 223, 229 n.10 (D.C. Cir. 1988) (noting that the lack of an “explicit congressional declaration” “has little relevance to the “special factors” exception”).
Two additional special factors carry somewhat less weight in the Court’s decision not to extend Bivens, but bear mentioning nonetheless. First, as the Supreme Court discussed in Hernandez v. Mesa, the Executive Branch’s “attempt[s] to control the movement of people and goods across the border” between the United States and Mexico “implicate[] an element of national security.” Hernandez, 140 S. Ct. at 746. Hernandez v. Mesa, which concerned an agent standing at the physical border with a firearm, implicates national security more directly than this case. Still, the movement of people across the border always contains at least an element of national security even when, as here, many of the people at issue are children.
Finally, alternative methods of relief appear to be available to the plaintiffs. In MejiaMejia, Judge Friedman noted two class actions in the Southern District of California. MejiaMejia, 2019 WL 4707150, at *5 (citing Ms. L. v. U.S. Immigrations and Customs Enf’t, No. 18-
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cv-0428, (S.D. Cal.); M.M.M. ex rel. his minor child, J.M.A. v. Barr, No. 18-cv-1832 (S.D. Cal.)). One of these is an ongoing putative class action being litigated by the American Civil Liberties Union on behalf of a class of adult parents who were separated from their children. See Third Am. Compl, Ms. L., No. 18-cv-0428 (Oct. 9, 2018), ECF No. 250. Here, the proposed class is made up of the separated children, not their parents, but Ms. L. nonetheless suggests that claims under the Administrative Procedure Act or under the Asylum and Withholding of Removal Statutes or the Convention against Torture might be possibilities. See id. ¶¶ 98–107. The other case, M.M.M., has settled, and includes a class of children. See Order Certifying the Settlement Classes and Granting Final Approval of Class Action Settlement, M.M.M., No. 18-cv1832 (Nov. 15, 2018), ECF No. 99. While there are undoubtedly differences between those actions and this one, the Court does not need to compare in detail the respective pleadings. An alternative method of relief that cautions against extending Bivens need not be an alternative means of bringing exactly the same claim. See Wilson v. Libby, 535 F.3d 697, 709 (D.C. Cir. 2008) (“The special factors analysis does not turn on whether the statute provides a remedy to the particular plaintiff for the particular claim he or she wishes to pursue.”). Even if there were no alternative remedy,3 the other factors discussed above would give the Court sufficient reason to pause before extending Bivens to the claims presented here.
In sum, two special factors primarily give the Court “reason to pause” in this case: first, the fact that Bivens is not properly used as a means of challenging general government policies, and second, the fact that Congress has legislated extensively in this area without providing of this
3 The Plaintiffs’ proposed tort claims against the United States, which they seek to amend their complaint in order to add, are not an alternative of the sort that qualifies as a special factor in the Bivens analysis. A plaintiff may pursue Bivens claims against officials in their individual capacities alongside FTCA claims against the United States for common law tort violations. Loumiet v. United States, 828 F.3d 935, 945 (D.C. Cir. 2016).
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kind of suit. Additionally, the fact that national security concerns are likely implicated and that alternatives forms of relief appear to be available give the Court further pause. For these reasons, the Court declines to extend Bivens into this new context, and will grant the motion to dismiss as to Counts I through VII.
2. Statutory Claims Two claims in Plaintiffs’ First Amended Complaint do not rely on Bivens, but are instead statutory: Count VIII, which alleges a conspiracy to interfere with civil rights in violation of 42 U.S.C. § 1985(3) and Count IX, which alleges refusal or neglect to provide or aide in preventing a conspiracy to interfere with civil rights in violation of 42 U.S.C. § 1986. Am. Compl. ¶¶ 286– 303. To state a claim under Section 1985(3), a plaintiff must allege “(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.” Wilson v. DNC Servs. Corp., 315 F. Supp. 3d 392, 400–01 (D.D.C. 2018) (quoting Pope v. Bond, 641 F. Supp. 489, 498 (D.D.C. 1986)). “[Section] 1986 imposes liability upon a person who ‘neglects or refuses’ to prevent a wrong under § 1985.” Jackson v. Donovan, 856 F. Supp. 2d 147, 150 (D.D.C. 2012). This means that “a colorable claim under § 1985 is a prerequisite to a claim under § 1986.” Leonard v. George Wash. Univ. Hosp., 273 F. Supp. 3d 247, 256 (D.D.C. 2017) (quoting Philogene v. District of Columbia, 864 F. Supp. 2d 127, 132 (D.D.C. 2012)).
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The individual Defendants argue that they are entitled to qualified immunity on these statutory claims.4 Mot. Dismiss Mem. at 40–42; Defs.’ Supp. at 14–15. “Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al–Kidd, 563 U.S. 731, 735 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). For a right to be “clearly established,” at the time of the officer's conduct, “existing law must have placed the constitutionality of the officer’s conduct ‘beyond debate.’” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Ashcroft, 563 U.S. at 741). The legal principle to be applied must be “dictated by ‘controlling authority’ or ‘a robust consensus of cases of persuasive authority,’” that “clearly prohibit the officer's conduct in the particular circumstances before him.” Id. at 589–90 (quoting Ashcroft, 563 U.S. at 741–42). Qualified immunity is properly evaluated at the motion to dismiss stage. Pearson v. Callahan, 555 U.S. 223, 231 (2009). A defendant bears the burden of pleading and proving the defense. Harlow, 457 U.S. at 815.
Trial courts have discretion to decide which prong of the qualified immunity analysis to address first. Pearson, 555 U.S. at 236; see Rasul v. Myers, 563 F.3d 527, 530 (D.C. Cir. 2009) (noting that “lower federal courts have the discretion to decide only the more narrow ‘clearly established’ issue ‘in light of the circumstances of the particular case at hand.’” (quoting Pearson, 555 U.S. at 236)). On the “clearly established” prong, “[t]he dispositive question is ‘whether the violative nature of particular conduct is clearly established.’’’ Abassi, 137 S. Ct. at 1866 (quoting Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (per curiam) (internal quotation
4 The individual Defendants argue that they are entitled to qualified immunity on all nine claims, but the Court need not address whether they would be entitled to qualified immunity for the Bivens claims because those fail to state a claim for other reasons.
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marks omitted)); see also id. at 1867 (“[Q]ualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’” (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986))). As a defense to claims under § 1985(3), qualified immunity is available not only when officers reasonably might not have known that the actions they allegedly conspired to take were unlawful but also when officers reasonably might not have known that their planning could be labeled a conspiracy under the statute. Abassi, 137 S. Ct. at 1867 (granting qualified immunity to defendants because “potential liability for this statutory offense would not have been known or anticipated by reasonable officials in their position”).
Following Abassi, Defendants argue that one reason why Plaintiffs’ two statutory claims fail is that it is not clearly established that § 1985(3) can “even appl[y] to federal actors who are formulating general policy.” Mot. Dismiss Mem. at 64. Under the “intracorporate-conspiracy doctrine,” “there is no unlawful conspiracy when officers within a single corporate entity consult among themselves and then adopt a policy for the entity.” Abassi, 137 S. Ct. at 1867 (citing Coppwerweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 769–71 (1984)); see also id. (“Conspiracy requires an agreement . . . between or among two or more separate persons. When two agents of the same legal entity make an agreement in the course of their official duties, however, as a practical and legal matter, their acts are attributed to their principal.”). The Supreme Court in Abassi observed a longstanding dispute among the lower courts regarding the applicability of the intracorporate-conspiracy doctrine to alleged conspiracies to violate civil rights in violation of § 1985. Id. at 1868 (citing discussion of the dispute in Bowie v. Maddox, 642 F.3d 1122, 1130–31 (D.C. Cir. 2011)); see also Apollo v. Bank of Am., N.A., 315 F. Supp. 3d 436, 439 (D.D.C. 2018) (indicating the question remained thirteen months after Abassi). The Court in Abassi held that the defendant officials sued under § 1985 were entitled to qualified
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immunity because the division among the courts concerning the intracorporate-conspiracy doctrine “demonstrates that the law on the point is not well established” and that therefore “a reasonable official lacks the notice required before imposing liability.” Abassi, 137 S. Ct. at 1868.
Plaintiffs attempt to distinguish Abassi by arguing that the defendants there “all worked for the same Department of the Executive Branch” while “many of the Defendants here worked in different Departments.” Pls.’ Supp. at 34; see also Opp’n at 60–61. Intracorporate-conspiracy doctrine should not apply, Plaintiffs argue, “[b]ecause the [D]efendants alleged to have conspired . . . are from distinct entities, performing distinct functions and making independent decisions.” Pls.’ Supp. at 34. While this does identify a factual distinction from Abassi, the Court does not think it makes any difference given Abassi’s reasoning. In Abassi, without reaching a holding one way or the other, the Supreme Court explained that “conversations and agreements between and among federal officials in the same Department should not be the subject of a private cause of action for damages under § 1985(3).” Abassi, 137 S. Ct. at 1868. But “open discussion among federal officers is to be encouraged,” id., as much across departments as much as within them. It is especially the case where, as here, conversations among White House officials and heads of departments are at issue. For example, if there is good reason for the Attorney General to be able to count on frank and open conversations with the heads of various Department of Justice divisions, then there is at least equally good reason for the Attorney General to be able to have the same kinds of conversations with White House officials.
Moreover, at least one court in this district, and numerous district courts around the country, have applied the intracorporate conspiracy doctrine to different entities within state and
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local governments. See Kelley v. District of Columbia, 893 F. Supp. 2d 115, 117 (D.D.C. 2012) (applying intracorporate conspiracy doctrine to an alleged conspiracy involving the D.C. Chief of Police and the former D.C. Attorney General); see also, e.g., Guichard v. Town of Brookhaven, 26 F. Supp. 3d 219, 227–28 (E.D.N.Y. 2014) (same for an alleged conspiracy involving a town, its waste management department, and employees of each); Dunlop v. City of New York, No. 06cv-0433 (RJS), 2008 WL 1970002, at *9 (S.D.N.Y. May 6, 2008) (same for an alleged conspiracy involving the New York City mayor, police commissioner, New York County District Attorney, and various other officials). It is irrelevant whether the Court would follow these cases—which have no precedential weight here—because it is enough for defendants to show that the law is not clearly established in Plaintiffs’ favor.
Another good reason to think the intracorporate-conspiracy doctrine might apply here is that Plaintiffs recognize that every Defendant—from the Chief of Staff down to the unnamed agents—acted within the scope of his or her employment. See Am. Compl. ¶ 31 (“At all relevant times, the Defendants have acted under color of federal law in the course and scope of their duties and functions as agents, employees, and officers of the United States in engaging in the conduct described in this Amended Complaint.”). The intracorporate-conspiracy doctrine protects only employees acting within the scope of their employment. Mehari v. District of Columbia, 268 F. Supp. 3d 73, 80 (D.D.C. 2017); see Abassi, 137 S. Ct. at 1868 (“These considerations suggest that officials employed by the same governmental department do not conspire when they speak to one another and work together in their official capacities.” (emphasis added)). The Defendants here have official duties that require them to speak and work with other officials outside their own departments. The non-identified ICE Agents and CBP Agents—all organized under the Department of Homeland Security—must communicate and
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coordinate with the non-identified ORR officials from HHS in order to process and care for UACs. White House officials and heads of agencies must do the same with heads of various departments. If the intracorporate-conspiracy doctrine can apply to civil rights claims—and Abassi states that it might be able to—there is little reason to think its reach would stop at crossdepartment communications within the scope of federal officers’ official duties. As Plaintiffs acknowledged, these officials acted under color of federal law as “agents, employees, and officers of the United States,” not on behalf of their individual agencies.
None of this is to say that the intracorporate-conspiracy doctrine necessarily applies to conversations and planning that takes place across executive departments, but only that the question is sufficiently open that the issue is not “beyond debate.” Ashcroft, 563 U.S. at 741. While Plaintiffs have attempted to distinguish the cases cited by Defendants—including Abassi and the state and local government cases—they present no cases to establish affirmatively that liability for Defendants’ alleged conduct is clearly established. See Pls.’ Resp. at 13–14. Simply distinguishing Defendants’ cases, even if done effectively, would not carry the Plaintiffs’ burden. The legal conclusions necessary to find in Plaintiffs’ favor “cannot be clearly established” and thus Defendants “would not have known with any certainty that the alleged agreements were forbidden by law.” Abassi, 137 S. Ct. at 1869. The individual defendants are therefore entitled to qualified immunity on the § 1985(3) claim, see id., and so the § 1986 claim necessarily fails along with it, see Leonard, 273 F. Supp. 3d at 256.
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B. Motion for Leave to File a Second Amended Complaint5 “Courts may deny a motion to amend a complaint as futile . . . if the proposed claim would not survive a motion to dismiss.” James Madison Ltd., 82 F.3d at 1099. Plaintiffs’ Second Amended Complaint makes identical Bivens and statutory conspiracy claims against the individual Defendants. Amending these claims would be futile because the proposed amendments change nothing about them and they would not survive a motion to dismiss for the reasons explained above. This would leave only for this Court’s consideration the proposed tort claims against the United States. The United States argues that Plaintiffs should not be permitted to add these claims because Plaintiffs never filed a proper administrative claim, U.S. Supp. at 5; see also U.S. Resp. at 2 n.1, and that even if they did, they failed to exhaust their administrative remedies before filing their initial complaint in this case. U.S. Supp. at 6. Plaintiffs’ first Complaint in this case was filed on September 5, 2018. See ECF No. 1. By their own admission, Plaintiffs did not present their administrative tort claims pursuant to the FTCA until October 9, 2018. See Mot. Amend ¶ 2. The United States acknowledges that “the case law on [allowing amendment in circumstances like these] is not uniform.” U.S. Resp. at 4. It points, however, to Schneider v. Kissinger, 310 F. Supp. 2d 251 (D.D.C. 2004), in which amendment was not allowed under the same circumstances presented here. Id. at 269–70; see id. at 270 (“Allowing claimants generally
5 While litigating in the District of Massachusetts, the Plaintiffs filed a Motion for Leave from Compliance with the Service Requirements in Local Rule 15.1, ECF No. 66, based on their apparent failure to comply with that local rule in the filing of their Motion for Leave to File a Second Amended Complaint. Judge Hillman did not rule on the Motion for Leave from Compliance, and it remains pending. In their supplemental briefing in this Court neither the United States nor the individual Defendants have mentioned this motion, except in passing. U.S. Supp. at 2 n.4. The motion will be neither granted nor denied. There is no need for the Court to grant leave from compliance with a local rule from a different district that has no bearing on this Court. The motion is therefore found to be moot in light of the transfer of the case to this Court.
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to bring suit under the FTCA before exhausting their administrative remedies and to cure the jurisdictional defect by filing an amended complaint would render the exhaustion requirement meaningless and impose an unnecessary burden on the judicial system.” (quoting Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999))). Plaintiffs point to no binding precedent to the contrary, nor have they identified any decisions contrary to Schneider from this district. See Pls.’ Supp. at 11.
Under the circumstances, the Court sees no reason to allow amendment. Judicial economy would be better served by the filing of a new action. Because the claims against the individual Defendants fail to state a claim, there is nothing to be gained in terms of judicial efficiency by litigating the claims against the United States in this action. The Schneider issue derives from the fact that the initial complaint in this action was filed before administrative remedies were exhausted pursuant to the FTCA. This would not be a problem in a new suit. The issue of whether administrative remedies have ever been exhausted will remain, but Plaintiffs now have the opportunity to address these issues before instituting a new case. Plaintiffs do not argue that they will be prejudiced if amendment of their FTCA claims is not allowed. See id. Their only judicial economy argument in favor of amendment is that discovery on the FTCA claims will overlap substantially with discovery on the Bivens and conspiracy claims. Id. at 12. But that will not be the case because those claims have failed. With nothing else remaining in this case, there is no benefit to Plaintiffs to having their FTCA claims litigated under this case number. To the contrary, keeping the cases separate may benefit Plaintiffs in that they will be able to immediately appeal the dismissal of their Bivens claims now. But if the FTCA claims were added to this case Plaintiffs would have to await resolution of the FTCA claims before appealing the dismissal of the Bivens claims.
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“The grant or denial of leave to amend is committed to a district court’s discretion” and

“futility of amendment” is a proper basis for the exercise of that discretion. Firestone v.

Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). Here the Court will deny leave to amend.

Amendment would be futile given the procedural hurdles that Plaintiffs have apparently failed to

clear, and in filing a new action Plaintiffs will have the opportunity to cure one or more

procedural defects.

IV. CONCLUSION

For the foregoing reasons, the individual Defendants’ Motion to Dismiss (ECF No. 51) is

GRANTED. Plaintiffs’ Motion for Leave to File a Second Amended Complaint (ECF No. 64)

is DENIED. Plaintiffs’ Motion for Leave from Compliance with the Service Requirements in

Local Rule 15.1 of the District of Massachusetts (ECF No. 66) is FOUND TO BE MOOT. An

order consistent with this memorandum opinion is separately and contemporaneously issued.

Dated: June 23, 2020

RUDOLPH CONTRERAS United States District Judge

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