UNITED STATES DISTRICT COURT 

 FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JAMES AZIZ MAKOWSKI, ) 

 ) 

 Plaintiff, ) 

 v. ) 

 ) No. 12 C 5265 

UNITED STATES OF AMERICA; ) 

FEDERAL BUREAU OF ) Judge Joan B. Gottschall 

INVESTIGATION (FBI); and ) 

DEPARTMENT OF HOMELAND ) 

SECURITY (DHS), ) 

 ) 

 Defendants. )

MEMORANDUM OPINION & ORDER 

 After Plaintiff James Aziz Makowski, a U.S. citizen, was arrested on July 7, 2010, an 

immigration detainer was issued against him. When Makowski pleaded guilty to a drug offense, 

the detainer caused him to be transferred to a maximum security prison rather than the boot camp 

for which he would otherwise have been eligible, and he spent approximately seventy days in 

custody before the detainer was canceled and he was allowed to complete the boot camp and 

secure his release. Makowski has sued the Federal Bureau of Investigation (“FBI”) and the 

Department of Homeland Security (“DHS”), for violations of the Privacy Act, 5 U.S.C. 

§§ 552a(b), a(g)(1)(C), and (e)(5), and he has sued the United States for false imprisonment and 

negligence under the Federal Tort Claims Act (“FTCA”), 18 U.S.C. §§ 2671 et seq. He seeks 

monetary damages as well as declaratory and injunctive relief. The government moves to 

dismiss Makowski’s First Amended Complaint in its entirety pursuant to Federal Rule of Civil 

Procedure 12(b)(6). For the reasons that follow, the motion is granted in part and denied in part. 
2 

I. FACTS

Makowski was born in 1987 in India. He was adopted by U.S. citizens when he was one 

year old. He entered the United States on an IR4 visa, which is reserved for orphans adopted by 

U.S. citizens, and he became a U.S. citizen soon after his arrival. In 1989, the Immigration and 

Naturalization Service (“INS”)—which is now DHS—issued Makowski a certificate of 

citizenship which included his alien registration number. Later that year, INS provided 

Makowski’s parents with written verification of his U.S. citizenship status. Makowski has lived 

in the United States since arriving as an infant and has had a U.S. passport since an early age. 

He served in the U.S. Marines from 2004 to 2006. As part of the Marines’ application process, 

he underwent an FBI background check. 

In October 2009, Makowski was arrested in DuPage County, Illinois. When his father 

posted bond, Makowski was told that he could not be released because Immigration and Customs 

Enforcement (“ICE”), a component of DHS, had issued an immigration detainer against him. 

While in custody, Makowski explained to a person he believed to be an ICE officer that he was a 

U.S. citizen. The detainer was subsequently lifted, and he was released on bail. 

Makowski was arrested again in DuPage County on July 7, 2010. The DuPage County 

Sheriff’s office took his fingerprints and submitted them to the FBI for a background check. 

Pursuant to the FBI’s participation in the immigration enforcement program “Secure 

Communities,” also known as “Interoperability,” the FBI transmitted Makowski’s fingerprints to 

DHS’s Automated Biometric Identification System (“IDENT”) database for an immigration 

background check. In response, DHS indicated to the FBI that IDENT did not contain a “match” 

for Makowski’s fingerprints, but it listed Makowski’s place of birth as “India.” Based on this 
3 

response, the FBI transmitted Makowski’s fingerprints and criminal record to the ICE Law 

Enforcement Support Center (LESC) for follow-up immigration enforcement. 

Makowski attached the ICE Secure Communities Standard Operating Procedures to his 

complaint as Exhibit A. As initially implemented, the FBI forwarded fingerprints and records to 

ICE’s LESC only if the IDENT query returned a “match,” indicating that the fingerprints 

belonged to an individual DHS had identified as a high priority subject. (First Am. Compl. 

¶¶ 20, 25, ECF No. 45; Ex. A (Standard Operating Procedures) § 2.1, ECF No. 45-1.) But the 

FBI disclosed Makowski’s fingerprints and records to LESC in spite of the “no match” response 

from DHS pursuant to a 2008 policy change whereby the FBI began to automatically forward to 

LESC fingerprints that generated a “no match” in the IDENT database if DHS’s response also 

indicated that the individual was born outside of the United States. (Id. at ¶ 25.) Makowski 

attached meeting minutes detailing this policy change to his complaint. (First Am. Compl. Ex. H 

(Oct. 22, 2008 Staff Paper), ECF No. 45-8.) 

On July 8, 2010, a day after Makowski was arrested in DuPage County for the second 

time, the ICE Chicago Field Office issued an I-247 immigration detainer against him. The 

detainer included his alien registration number and incorrectly listed his nationality as Indian, 

reflecting the fact that “INS and now DHS [had] not properly updated his records in over 20 

years to accurately reflect that [he] is a citizen of the U.S.” (First Am. Compl. ¶ 38.) On 

December 6, 2010, Makowski pleaded guilty to a drug offense and received a seven-year prison 

sentence. He did so under the impression that he would be allowed to participate in a 120-day 

boot camp in lieu of serving the seven-year sentence. (Id. at ¶ 43.) Makowski was transferred to 

the Stateville Correctional Center for processing into boot camp. 
4 

During processing, Makowski met with an ICE officer. He provided the ICE officer with 

copies of his U.S. passport and social security card. The ICE officer inspected and copied these 

materials. (Id. at ¶ 45.) Soon after processing, Makowski learned that he was ineligible for the 

boot camp because of the immigration detainer, and he was transferred to Pontiac Correctional 

Center to serve the seven-year prison sentence. (Id. at ¶ 46.) 

With the assistance of an attorney, Makowski’s father had the detainer canceled on 

January 25, 2011, and Makowski was transferred to be processed into the boot camp program on 

February 9, 2011. (Id. at ¶ 48.) He completed the boot camp program and was released on July 

20, 2011. (Id. at ¶ 49.) In September 2011, Makowski began working as a network 

administrator. (Id.) He alleges that, were it not for the wrongful detainer issued on July 8, 2010, 

he would have completed boot camp by mid-May 2011 and would have sought employment and 

begun working prior to September 2011. (Id.) 

Based on these allegations, Makowski brings claims against the FBI for improperly 

disclosing his fingerprints and records to DHS, in violation of the Privacy Act, 5 U.S.C. § 

552a(b) (Count I). He seeks injunctive and declaratory relief based on this violation (Count V). 

He brings a claim against DHS for failing to properly maintain its records reflecting his 

citizenship, in violation of the Privacy Act, 5 U.S.C. §§ 552a(g)(1)(C) & (e)(5) (Count II), and 

seeks injunctive and declaratory relief based on this violation (Count VI). He brings separate 

claims against the United States under the FTCA for false imprisonment (Count III) and 

negligence (Count IV). 

II. LEGAL STANDARD

To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must “state a claim 

to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. 
5 

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies this pleading standard when its 

factual allegations “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 

555-56; see also Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) (“[P]laintiff must 

give enough details about the subject-matter of the case to present a story that holds together.”). 

For purposes of the motion to dismiss, the court takes all facts alleged by the claimant as true and 

draws all reasonable inferences from those facts in the claimant’s favor, although conclusory 

allegations that merely recite the elements of a claim are not entitled to this presumption of truth. 

Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011). A plaintiff may plead himself “‘out of 

court when it would be necessary to contradict the complaint in order to prevail on the merits.’” 

Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008) (quoting Kolupa v. Roselle Park 

Dist., 438 F.3d 713, 715 (7th Cir. 2006)). 

III. ANALYSIS

A. Privacy Act Claims Against the FBI (Counts I and V) 

 According to Makowski, the FBI’s disclosure of his fingerprints to DHS’s IDENT 

database and the subsequent transmission of his fingerprints and criminal record to ICE’s LESC 

violated his rights under the Privacy Act. The Privacy Act provides that “[n]o agency shall 

disclose any record which is contained in a system of records by any means of communication to 

any person, or to another agency, except pursuant to a written request by, or with the prior 

written consent of, the individual to whom the record pertains.” 5 U.S.C. § 552a(b). 

 It is undisputed that Maskowski did not consent to the disclosure of his records. The 

government contends, however, that the FBI’s disclosures of Makowski’s fingerprints and 

criminal record fall under the Privacy Act’s “routine use” exception, § 552a(b)(3), and therefore 

were not barred by the Privacy Act. Within the meaning of the Privacy Act, a “routine use” is 
6 

“the use of such record for a purpose which is compatible with the purpose for which it was 

collected.” § 552a(a)(7). Agencies are required to publish in the Federal Register information 

about the systems of records they maintain, including “each routine use of the records contained 

in the system, including the categories of users and the purpose of such use.” § 552a(e)(4)(D). 

Thus, the FBI’s transmissions of Makowski’s fingerprints and criminal record to IDENT and 

ICE’s LESC are exempted from the Privacy Act’s bar on disclosures only if (1) the disclosure 

was made pursuant to a published routine use and (2) the use of the records was compatible with 

the purpose for which they were collected. 

1. The Publication Requirement 

 The Government argues that Blanket Routine Use 6 (“BRU 6”), which the FBI has 

published in the Federal Register, 66 Fed. Reg. 33,559 (June 22, 2001), justifies the FBI’s 

disclosures. BRU 6, which applies to every FBI system of records, permits disclosure “[t]o such 

recipients and under such circumstances and procedures as are mandated by Federal statute or 

treaty.” Id. The Government contends, and Makowski states in his complaint, that the FBI 

disclosed the fingerprints and criminal record pursuant to the Enhanced Border Security and Visa 

Entry Reform Act of 2002 (the “Enhanced Border Security Act”), 8 U.S.C. § 1722(a)(2). The 

relevant inquiry regarding the publication requirement of the “routine use” exception is therefore 

whether the Enhanced Border Security Act mandated the disclosures made by the FBI. 

 Following the September 11, 2001 terrorist attacks in the United States, Congress enacted 

the Enhanced Border Security Act to “provide law enforcement more information about 

potentially dangerous foreign nationals” and “update technology to meet the demands of the 

modern war against terror.” 147 Cong. Rec. S12247-05, 2001 WL 1521845 (Nov. 30, 2001) 

(statement of Sen. Feinstein). The pertinent portion of the statute requires the President to 
7 

“develop and implement an interoperable electronic data system to provide current and 

immediate access to information in databases of Federal law enforcement agencies and the 

intelligence community that is relevant to determine whether to issue a visa or to determine the 

admissibility or deportability of an alien.” 8 U.S.C. § 1722(a)(2). 

 The government argues that “[t]o comply with section 1722’s mandate, the FBI must 

forward to DHS all the fingerprint records it receives as a result of an arrest.” (Defs.’ Mot. to 

Dismiss 23, ECF No. 57-1.) In its view, the FBI has no way of knowing whether the fingerprints 

it receives from a local law enforcement agency belong to a citizen or alien until DHS runs a 

query in IDENT. Therefore, according to the government, “at the time of receipt following an 

arrest, all the fingerprints the FBI receives are potentially ‘relevant’ to an immigration decision 

and all must be forwarded to DHS.” (Id. (emphasis in original).) The government further 

contends that even if § 1722(a)(2) is ambiguous, the FBI and DHS’s interpretation of the 

provision is reasonable and entitled to deference. (Id.) 

 Makowski argues that § 1722(a)(2) is unambiguous and did not authorize—much less 

mandate—the FBI’s disclosure of his fingerprints and criminal record to DHS. In his view, the 

statute “allows the FBI to transmit records to the DHS only when the FBI knows or believes 

someone to be ‘an alien.’” (Pl.’s Resp. to Mot. to Dismiss 5, ECF No. 63.) Makowski contends 

that because the FBI’s own records demonstrated that he was a United States citizen, his 

fingerprints could not have been “relevant” to an immigration decision, and § 1722(a)(2) did not 

require the disclosure. He further argues that the FBI and DHS’s interpretation of § 1722(a)(2) is 

not entitled to deference because it is an unreasonable construction of an unambiguous statute. 

 In reviewing the FBI and DHS’s interpretation of § 1722(a)(2), the court must resolve 

two issues. First, the court must determine “whether Congress has directly spoken to the precise 
8 

question at issue.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 

(1984).1

 If the statute’s text unambiguously speaks to the specific issue in question, then “the 

court, as well as the agency, must give effect to the . . . expressed intent of Congress.” Id. at 

842-43. But “if the statute is silent or ambiguous with respect to the specific issue, the [second] 

question for the court is whether the agency’s answer is based on a permissible construction of 

the statute.” Id. at 843. When Congress delegates to an agency the authority to formulate policy 

and rules for carrying out a statutory provision, even if the delegation is implicit, “a court may 

not substitute its own construction of a statutory provision for a reasonable interpretation made 

by the administrator of an agency.” Id. at 843-44. This deferential approach respects an 

agency’s superior ability—as compared to that of the court—to reconcile conflicting policies in 

determining the meaning and reach of a statute that the agency has been entrusted by Congress to 

administer. Id. at 844. 

 With respect to the first Chevron inquiry, § 1722(a)(2) does not directly speak to whether 

the FBI, upon receiving Makowski’s fingerprints, was required to disclose them to DHS. The 

statute requires the President to “develop and implement an interoperable electronic data system 

to provide current and immediate access to information in [their] databases . . . that is relevant to 

determine whether to issue a visa or to determine the admissibility or deportability of an alien.” 

8 U.S.C. § 1722(a)(2). The President is instructed to do so “acting through the Assistant to the 

President for Homeland Security, in coordination with . . . the Attorney General, . . . [and] the 

Director of the Federal Bureau of Investigation.” 8 U.S.C. § 1701(6). Congress provided no 

definition or clarification as to what information is “relevant” to immigration decisions, 

 

1

 The parties analyzed the issue of deference under Chevron. The court notes that it would 

reach the same conclusion, however, under Skidmore v. Swift & Co., 323 U.S. 134 (1944), 

because the government’s interpretation of the statute is both reasonable and persuasive.
9 

implicitly delegating to the implementing agencies the authority to determine what is “relevant.” 

While Makowski alleges that the FBI knew, based on information in its records, that Makowski 

was an American citizen and could not be subject to an immigration determination, § 1722(a)(2) 

requires the FBI to provide “immediate” access to its information. Because Congress did not 

specify what “immediate” means, the statute is ambiguous as to whether it required the FBI to 

disclose the information before it had an opportunity to verify Makowski’s citizenship status 

from its own records. Because the statute’s text does not “speak with the precision necessary to 

say definitively whether it” mandated the FBI’s disclosure of Makowski’s fingerprints and 

criminal record to DHS, the court must defer to the FBI and DHS’s application of the statute if it 

was reasonable. United States v. Eurodif S.A., 555 U.S. 305, 319 (2009). 

 Regarding the second prong of the Chevron inquiry, the court finds that the FBI and 

DHS’s interpretation and application of § 1722(a)(2) with respect to the disclosure of 

Makowski’s fingerprints and criminal record was reasonable. After receiving Makowski’s 

fingerprints from the DuPage County Sheriff’s office, the FBI forwarded the fingerprints to DHS 

for a query in the IDENT database before attempting to verify Makowski’s citizenship status 

from its own records. The FBI did not know how long Makowski would be detained by the 

DuPage County Sheriff’s office, and it was reasonable to believe that Congress intended in such 

circumstances for the FBI to forward the fingerprints and criminal record to DHS as soon as 

possible to determine whether the information would affect an immigration enforcement 

decision. Given that DHS’s response indicated that Makowski was born in India, the FBI’s 

disclosure of the fingerprints to ICE’s LESC was also reasonable, as a foreign place of birth 

indicated that the FBI’s information might be relevant to an immigration enforcement decision. 
10 

 The fact that the FBI and DHS changed their policy in 2008 to forward to LESC the 

fingerprints and criminal record of an individual born in a foreign country even when IDENT 

generated a “no match” response, see supra at 3, does not undermine the reasonableness of the 

new policy. “Agency inconsistency is not a basis for declining to analyze the agency’s 

interpretation under the Chevron framework.” Nat’l Cable & Telecomms. Ass’n v. Brand X 

Internet Servs., 545 U.S. 967, 981 (2005). A change in policy will not undermine the agency’s 

interpretation as long as “the agency adequately explains the reasons.” Id. The Staff Paper 

attached to the complaint explained that the change reflected the fact that a “no match’ response 

coupled with a foreign place of birth “may indicate a first encounter of a potential illegal alien.” 

(Oct. 22, 2008 Staff Paper 3.) Better or swifter compliance with Congress’s instruction “to 

improve and modernize efforts to identify aliens convicted of a crime, sentenced to 

imprisonment, and who may be deportable” (id.) is a reasonable and adequate explanation for the 

change in policy. 

 As § 1722(a)(2) is ambiguous as to what it required the FBI to do upon receiving 

Makowski’s fingerprints, the court defers to the FBI and DHS’s interpretation and application of 

the statute, which was reasonable. Thus, the FBI’s transmissions of Makowski’s fingerprints and 

criminal record to DHS’s IDENT database and to ICE’s LESC were mandated by Federal statute 

and covered by BRU 6. The disclosures meet the “routine use” publication requirement. 

2. The Compatibility Requirement 

 The court next considers whether the purpose of the disclosures was compatible with the 

purpose for which the records were collected. The fingerprints submitted to the FBI by the 

DuPage County Sheriff’s office and the FBI’s criminal records on Makowski are part of the 

FBI’s Fingerprint Identification Record System (FIRS). See 64 Fed. Reg. 52,347 (Sept. 28, 
11 

1999) (Categories of records in the FIRS include “[c]riminal fingerprints and/or related criminal 

justice information submitted by authorized agencies having criminal justice responsibilities” 

and “[i]dentification records sometimes referred to as ‘rap sheets,’ which are compilations of 

criminal history record information pertaining to individuals who have criminal fingerprints 

maintained in the system.”). The purposes for collecting these records include performing 

“identification and criminal history record information functions” and maintaining “resultant 

records for local, state, tribal, federal, foreign, and international criminal justice agencies.” Id. 

Makowski alleges that the FBI made the disclosures to determine whether he had been identified 

by DHS as a high priority target and to allow ICE to follow up with immigration enforcement. 

The disclosures were compatible with the published purposes for which the FBI collected them. 

 Because the FBI’s disclosures have met both the publication and compatibility 

requirements of the Privacy Act’s “routine use” exception, they were permissible under the 

Privacy Act. The FBI cannot be liable to Makowski under the Privacy Act without having 

violated the Act. See 5 U.S.C. § 552a(g)(1). Makowski’s Privacy Act claims against the FBI are 

dismissed as he has pleaded facts that show he is not entitled to relief on these claims. 

B. Privacy Act Claim Against DHS for Actual Damages (Count II) 

 In Count II, Makowski claims that DHS violated his rights under the Privacy Act, which, 

in addition to its restrictions regarding disclosures of records, requires an agency to “maintain all 

records which are used by the agency in making any determination about any individual with 

such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure 

fairness to the individual in the determination.” 5 U.S.C. § 552a(e)(5). The Privacy Act permits 

an individual to bring a civil action against an agency that makes a determination adverse to the 

individual based on the agency’s failure “to maintain any record concerning [that] individual 
12 

with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in 

any determination relating to the . . . rights . . . [of] the individual that may be made on the basis 

of such record.” 5 U.S.C. § 552a(g)(1)(C). If “the court determines that the agency acted in a 

manner which was intentional or willful,” the plaintiff may recover “actual damages sustained by 

the individual as a result of the refusal or failure.” § 552a(g)(4)(A). Makowski claims that the 

government is liable to him for “lost wages and other pecuniary and economic harm,” caused by 

DHS’s violations of his rights under the Privacy Act. (First Am. Compl. ¶ 85.) 

The government does not challenge Makowski’s allegation that DHS’s records pertaining 

to him were inaccurate, but it argues that he has failed to state a claim for actual damages under 

the Privacy Act. It contends that his claim fails for three reasons: (1) he “has failed to allege 

facts showing that [DHS] ‘intentionally or willfully’ violated the Privacy Act”; (2) he “has not 

pleaded that he has suffered ‘actual damages’”; and (3) he “has not alleged that [DHS’s] alleged 

violations of the Privacy Act were the cause of his damages.” (Defs.’ Mot. to Dismiss 9, 15, 17.) 

1. Intentional or Willful Violation 

 The government first argues that Makowski’s claim for damages fails because he has 

pleaded no facts to support his allegation that DHS intentionally or willfully failed to update its 

records to reflect his citizenship status. As stated above, under § 552a(g)(4)(A) of the Privacy 

Act, a plaintiff is entitled to recover damages only if a “court determines that the agency acted in 

a manner which was intentional or willful.” 5 U.S.C. § 552a(g)(4)(A) (emphasis added). 

According to the Seventh Circuit, the standard is “greater than gross negligence” and 

encompasses “reckless behavior and/or knowing violations of the Act on the part of the 

accused.” Moskiewicz v. U.S. Dept. of Agric., 791 F.2d 561, 564 (7th Cir. 1986). In determining 
13 

whether this standard is met, “a court may consider the entire course of conduct that resulted in 

the” Privacy Act violation. Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 551 (6th Cir. 2010). 

 Drawing all reasonable inferences in Makowski’s favor, the court finds that he has 

sufficiently pleaded facts to support his claim that DHS willfully violated its duty under the 

Privacy Act to maintain accurate records. Makowski has been a U.S. citizen since 1989. He 

alleges that after he spoke to a person he believed to be an ICE officer, ICE canceled the 

immigration detainer that had been issued against him in 2009. (First Am. Compl. ¶¶ 31, 33.) 

The court can reasonably infer from these allegations that ICE (a component of DHS) was put on 

notice not only that its record pertaining to Makowski’s citizenship status was inaccurate, but 

also that this inaccuracy had the potential to contribute to an adverse immigration enforcement 

determination regarding Makowski—as it did with the issuance of the 2009 detainer. Makowski 

alleges that despite this notice, ICE did not update its records to reflect his citizenship status, as 

evidenced by the unlawful immigration detainer ICE issued against him in July 2010. (First Am. 

Compl. ¶ 38.) Accepting these allegations as true, it is plausible that DHS flagrantly disregarded 

Makowski’s rights under the Privacy Act by failing to update its records after being put on notice 

of the inaccuracy and its potential to contribute to an unfair determination against him. 

2. Actual Damages 

 The government next argues that Makowski has failed to plead that he suffered “actual 

damages,” as required by § 552a(g)(4)(A). In an action in which an agency is found to have 

intentionally or willfully violated the Privacy Act, the United States is liable for “actual damages

sustained by the individual as a result of the [violation], but in no case shall a person entitled to 

recovery receive less than the sum of $1,000.” 5 U.S.C. § 552a(g)(4)(A) (emphasis added). The 

Supreme Court has held that “[t]he statute guarantees $1,000 only to plaintiffs who have suffered 
14 

some actual damages.” Doe v. Chao, 540 U.S. 614, 627 (2004). In F.A.A. v. Cooper, the 

Supreme Court further explained that victims must demonstrate “pecuniary or material” harm. 

132 S. Ct. 1441, 1451 (2012). Put simply, fear or emotional harm is insufficient. 

 In this case, Makowski has sufficiently pleaded that he suffered actual damages. He 

alleges that following his release from boot camp on July 20, 2011, he began working as a 

network administrator in September 2011. (First Am. Compl. ¶ 49.) He alleges that had the 

unlawful immigration detainer not been issued, he would have been released in mid-May, would 

have immediately sought gainful employment, and would have begun working earlier than 

September. (Id.) Makowski alleges that he therefore suffered lost wages and other pecuniary 

harm. (Id. at ¶¶ 78, 85.) 

 Although the government argues that these allegations are too speculative, the court must 

accept the allegations as true and draw all reasonable inferences in Makowski’s favor. It is 

reasonable to infer that the seventy days of unnecessary incarceration cost Makowski prospective 

employment opportunities. Loss of economic opportunity is pecuniary harm. See Speaker v. 

U.S. Dept. of Health and Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371, 

1383 (11th Cir. 2010) (holding that an allegation of “loss of prospective clients as an attorney” 

satisfied the “actual damages” requirement); Beaven, 622 F.3d at 558 (remanding to the district 

court for factual findings because “[t]he additional ‘lost time’ damages sought by Plaintiffs may 

qualify as ‘out-of-pocket losses’”). Taken as true, Makowski’s allegations plausibly suggest that 

he suffered actual damages. 

 3. Causation 

 Finally, the government argues that the complaint fails to state a claim for damages 

against DHS because Makowski “has not alleged that the agenc[y]’s violation[] of the Privacy 
15 

Act [was] the cause of his damages.” (Defs.’ Mot. to Dismiss 17.) A plaintiff is entitled to 

monetary damages under the Privacy Act only if he proves that the Privacy Act violation was the 

proximate cause of the damages sustained. 5 U.S.C. § 552a(g)(4)(A); see also Dickson v. Office 

of Pers. Mgmt., 828 F.2d 32, 37 (D.C. Cir. 1987). Because it was IDOC’s decision to disqualify 

Makowski from boot camp because of the immigration detainer, the government argues that the 

causal chain between the alleged Privacy Act violation by DHS and Makowski’s damages was 

broken. (Defs.’ Mot. to Dismiss 18.) 

Makowski has sufficiently alleged that DHS’s violation of the Privacy Act proximately 

caused him to suffer actual damages. The complaint alleges an unbroken chain of events, 

beginning with DHS’s failure to maintain accurate records regarding Makowski (First Am. 

Compl. ¶ 38), and ending with Makowski’s lost wages (id. at ¶ 49.) Makowski has linked the 

alleged Privacy Act violation with his alleged damages by stating that ICE issued an unlawful 

detainer against him because of its reliance on DHS’s inaccurate records (id. at ¶ 38), the 

detainer disqualified Makowski from boot camp (id. at ¶ 46), Makowski was not processed into 

boot camp until his father retained an attorney’s assistance to prompt ICE to cancel the detainer 

(id. at ¶ 48), and the delay in processing into boot camp caused Makowski to remain incarcerated 

from May to July 2011, preventing him from seeking employment (id. at ¶ 49). 

Although IDOC was responsible for disqualifying Makowski from boot camp, the 

independent action of a third party does not necessarily eviscerate proximate cause. See Sullivan 

v. U.S. Postal Serv., 944 F. Supp. 191, 197 (W.D.N.Y. 1996) (where employer fired plaintiff 

after the Postal Service violated the Privacy Act in disclosing plaintiff’s job application, 

summary judgment was inappropriate because “the question of proximate cause [wa]s a disputed 

question of material fact”). As the Seventh Circuit has explained, “reasonably foreseeable 
16 

intervening forces will not break the chain of proximate causation.” United States v. KingVassel, 728 F.3d 707, 714 (7th Cir. 2013). 

Here, drawing all reasonable inferences in Makowski’s favor, the impact of the 

immigration detainer on Makowski’s incarceration was reasonably foreseeable. DHS was aware 

that local law enforcement entities would likely respond to the detainer by holding an inmate in 

custody, making prolonged detention a natural and normal result of the detainer. See id. See 

also Carchman v. Nash, 473 U.S. 716, 719 (1985) (“A detainer is a request filed . . . with the 

institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for 

the agency or to notify the agency when release of the prisoner is imminent.”). When a detainer 

is issued, detention or a change in custody status is foreseeable even if detention based on an 

immigration detainer is not mandatory, as a split panel of the Third Circuit recently concluded. 

See Galarza v. Szalczyk, ___F.3d___, 2014 WL 815127, at *7 (3d Cir. Mar. 4, 2014) (holding in 

2-1 decision that “detainers are not mandatory,” but must be considered “requests”). Although 

the causal chain contains several links, Makowski has plausibly alleged that DHS’s violation of 

the Privacy Act caused him actual damages. 

C. Privacy Act Claim Against DHS for Equitable Relief (Count VI) 

 In addition to damages, Makowski seeks preliminary and permanent injunctive relief. He 

asks the court to order DHS to cease maintaining the fingerprints and records pertaining to him 

that were disclosed by the FBI to DHS. (First Am. Compl. ¶ 112.) He also asks the court to 

declare that DHS’s maintenance of such data violates the Privacy Act. (Id. at ¶ 113.) The 

Government argues that Makowski lacks standing to pursue these claims for equitable relief. 

(Defs.’ Mot. to Dismiss 18-19.) 
17 

 To overcome a motion to dismiss for lack of standing, a plaintiff must plausibly allege 

that he has suffered a “concrete,” “actual or imminent” injury that “is fairly traceable to the 

challenged action of the defendant” and is likely to be “redressed by a favorable decision.” 

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). In 

other words, he must be “realistically threatened by a repetition of his experience.” City of Los 

Angeles v. Lyons, 461 U.S. 95, 109 (1983). “[A] plaintiff must demonstrate standing separately 

for each form of relief sought.” Friends of the Earth, 528 U.S. at 185. 

 Makowski argues that he has established a threat of imminent injury. For example, he 

alleges that when a potential employer attempted to verify his citizenship status using E-Verify, 

an electronic database managed by DHS and the Social Security Administration, E-Verify 

returned a response indicating that his status as a citizen could not be verified. (First Am. 

Compl. ¶ 69.) Makowski argues that equitable relief is necessary to remedy an ongoing violation 

of his rights under the Privacy Act. 

 Makowski might be able to establish standing to seek an injunction against future 

immigration detainers or to require DHS to correct his records. See, e.g., Morales v. 

Chadbourne, C.A. No. 12-301-M, __F. Supp. 2d ___, 2014 WL 554478, at *15 (D.R.I. Feb. 12, 

2014) (concluding that foreign-born American citizen had standing to seek injunctive relief 

because she was “twice inappropriately detained on a detainer alleging immigration violations,” 

and “ICE officials told her that this could happen to her again”). The declaratory and injunctive 

relief he seeks in Count VI, however, is not related to the accuracy of DHS’s recordkeeping, but 

to “DHS’s maintenance of [his] fingerprint and other data in its IDENT database.” (First Am. 

Compl. ¶ 108.) As the court held above, although Makowski may proceed on his claim in Count 

II that DHS failed to maintain his records accurately, his claim in Count I that the FBI violated 
18 

the Privacy Act by sharing his records has been dismissed. Furthermore, injunctive relief is not 

available for claims alleging inaccurate recordkeeping under § 552a(g)(1)(C) of the Privacy Act. 

It is available in suits seeking to amend a record under § 552a(g)(2) and suits for access to a 

record under § 552a(g)(3). Chao, 540 U.S. at 635 (Ginsburg, J., dissenting); Clarkson v. IRS, 

678 F.2d 1368, 1375 n.11 (11th Cir. 1982) (“The Privacy Act expressly provides for injunctive 

relief for only two types of agency misconduct, that is, wrongful withholding of documents . . . 

and wrongful refusal to amend an individual’s record . . . .”). 

 In sum, Makowski has not alleged facts in support of his claim for equitable relief 

showing that his “injury is fairly traceable to the challenged action of the defendant” and “that 

the injury will be redressed by a favorable decision.” Friends of the Earth, 528 U.S. at 180-81 

(2000). Count VI is therefore dismissed. The dismissal is without prejudice, as Makowski may 

be able to allege facts stating a claim for equitable relief against DHS. 

D. FTCA False Imprisonment Claim against the United States (Count III) 

 1. False Imprisonment and Probable Cause 

 In Count III, Makowski alleges that the government’s agents falsely imprisoned him, in 

violation of the FTCA. The FTCA “remove[s] the sovereign immunity of the United States from 

suits in tort.” Levin v. United States, 133 S. Ct. 1224, 1228 (2013). Sovereign immunity is 

waived “under circumstances where the United States, if a private person, would be liable to the 

claimant in accordance with the law of the place where the act or omission occurred.” 28 

U.S.C. § 1346(b)(1). The FTCA requires courts to consult state law to determine whether the 

government is liable for its employees’ torts. FDIC v. Meyer, 510 U.S. 471, 478 (1994) (“[The] 

law of the State [is] the source of substantive liability under the FTCA.”). The FTCA does not 

waive sovereign immunity for claims based on alleged violations of federal law. Id. at 478. 
19 

 The FTCA’s waiver of sovereign immunity is subject to a number of exceptions set forth 

in 28 U.S.C. § 2680. The “intentional tort exception” preserves the government’s immunity 

from suit for “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, 

malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference 

with contract rights,” except for claims arising “out of assault, battery, false imprisonment, false 

arrest, abuse of process, or malicious prosecution” that are asserted against “investigative or law 

enforcement officers of the United States Government.” 28 U.S.C. § 2680(h); Millbrook v. 

United States, 133 S. Ct. 1441, 1443 (2013). An “investigative or law enforcement officer” is 

“any officer of the United States who is empowered by law to execute searches, to seize 

evidence, or to make arrests for violations of Federal law.” § 2680(h). Immigration officials 

have been held to fall within the law enforcement proviso. See, e.g., Medina v. United States, 

259 F.3d 220, 224 (4th Cir. 2001). Thus, sovereign immunity is waived with respect to a claim 

alleging false imprisonment by immigration officials. See, e.g., Liranzo v. United States, 690 

F.3d 78, 94-95 (2d Cir. 2012) (“[T]he United States has indeed waived its sovereign immunity 

from suit as to Liranzo’s ‘claim,’ which ‘aris[es] . . . out of . . . false imprisonment [and] false 

arrest.’” (quoting § 2680(h))). 

 As stated above, state law provides the substantive law governing an FTCA claim. Under 

Illinois law, to state a claim for false imprisonment, “the plaintiff must allege that his personal 

liberty was unreasonably or unlawfully restrained against his will and that defendant(s) caused or 

procured the restraint.” Arthur v. Lutheran Gen. Hosp., 692 N.E.2d 1238, 1243 (Ill. App. Ct. 

1998). A claim for false imprisonment requires a showing that “the plaintiff was restrained or 

arrested by the defendant, and that the defendant acted without having reasonable grounds to 

believe that an offense was committed by the plaintiff.” Meerbrey v. Marshall Field & Co., 564 
20 

N.E.2d 1222, 1231 (Ill. 1990). Put another way, to succeed on a claim for false imprisonment, a 

plaintiff must show that he was restrained unreasonably or without probable cause. Martel 

Enters. v. City of Chi., 584 N.E.2d 157, 161 (Ill. App. Ct. 1991). “Probable cause is an absolute 

bar to a claim for false imprisonment.” Poris v. Lake Holiday Prop. Owners Ass’n, 983 N.E.2d 

993, 1007 (Ill. 2013). 

 According to Makowski’s complaint, “DHS’s and ICE’s agents, officers, servants, and 

employees willfully and unlawfully restrained [him] and deprived him of his liberty to move 

more freely.” (First Am. Compl. ¶ 89.) Makowski claims that the issuance of the detainer 

resulting in his detention in prison was unreasonable because no probable cause existed to 

believe that he had committed an immigration violation, particularly after he met with an ICE 

officer and provided copies of his passport and Social Security card. (Id. at ¶¶ 90-91.) 

 The government first argues that the false imprisonment claim fails because Makowski 

was held pursuant to legal process: he pleaded guilty to a drug offense and was sentenced to 

seven years’ imprisonment. Makowski, however, argues that his claim is based on the fact that 

he was detained pursuant to the immigration detainer, not the state criminal charges. Makowski 

alleges that he spent seventy days in custody as a result of the detainer. The court concludes that 

he has sufficiently alleged that he was unlawfully restrained as a result of the detainer. 

 More problematic is the question of whether probable cause existed to issue the detainer. 

The detainer was issued in accordance with the Secure Communities Standard Operating 

Procedures attached to the complaint as Exhibit A. That document states, “When ICE 

determines an alien has been charged or convicted of a Level 1 offense that could result in 

removal . . . ICE will file an Immigration Detainer (Form I-247) at the time of booking with the 

local [Law Enforcement Agency] that has custody of the alien.” (Standard Operating Procedures 
21 

§ 2.1.5.) Level 1 offenses include “drug offenses involving a sentencing to a term of 

imprisonment greater than one year.” (Id.) 

 Makowski, who received a seven-year sentence for a drug offense, committed a Level 1 

offense, and DHS records indicated that he was an alien. Thus, the issuance of the detainer in 

July 2010 was supported by probable cause. ICE officers relied on incorrect DHS records when 

they issued the detainer. But Seventh Circuit precedent indicates that an incorrect assumption 

about the facts does not destroy probable cause. See Payne v. Pauley, 337 F.3d 767, 775 (7th 

Cir. 2003) (“The test is an objective one and evaluates whether probable cause existed on the 

facts as they appeared to a reasonable police officer, even if the reasonable belief of that officer 

is ultimately found to be incorrect.”). 

 Makowski, however, met with an ICE officer in December 2010, and he provided the 

officer with his passport and other information indicating his U.S. citizenship. The government 

points out that this was five months after the detainer was issued. But Makowski has submitted 

as an exhibit an ICE memorandum dated November 19, 2009, directing officers and agents to 

“immediately examine the merits of [a] claim” of U.S. citizenship by a detained individual, and 

indicating that “[a]bsent extraordinary circumstances,” a recommendation on the claim should be 

prepared within 24 hours and that a decision should be issued within 24 hours thereafter. (First 

Am. Compl. Ex. D (Nov. 19, 2009 Mem.), ECF No. 45-4.) In Makowski’s case, no prompt 

recommendation and decision resulted from his citizenship claim, and the detainer was not 

canceled until his father sought legal assistance. To analogize to the criminal context, “[t]he 

continuation of even a lawful arrest violates the Fourth Amendment when the police discover 

additional facts dissipating their earlier probable cause.” BeVier v. Hucal, 806 F.2d 123, 128 

(7th Cir. 1986) (citing People v. Quarles, 410 N.E.2d 497 (Ill. 1980)); see also Brooks v. City of 
22 

Aurora, Ill., 653 F.3d 478, 486 (7th Cir. 2011) (finding that the probable cause inquiry is the 

same for § 1983 false arrest and false imprisonment claims). The court concludes that Makowski 

has alleged a plausible claim for false imprisonment against the United States. 

 2. The Discretionary Function Exception to the FTCA 

 The government argues that, even if Makowski has pleaded an FTCA claim, the 

challenged conduct falls within the “discretionary-function” exception to the FTCA, which states 

that the United States shall not be liable for any claim based on “the exercise or performance or 

the failure to exercise or perform a discretionary function or duty on the part of a federal agency 

or employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. 

§ 2680(a). As the Supreme Court has explained, “[t]he exception covers only acts that are 

discretionary in nature, acts that involve an element of judgment or choice, and it is the nature of 

the conduct, rather than the status of the actor that governs whether the exception applies.” 

United States v. Gaubert, 499 U.S. 315, 322 (1991) (internal citations and quotation marks 

omitted). “The purpose of this discretionary-function exception is to ‘prevent judicial “secondguessing” of legislative and administrative decisions grounded in social, economic, and political 

policy through the medium of an action in tort.’” Reynolds v. United States, 549 F.3d 1108, 

1112 (7th Cir. 2008) (quoting Berkovitz v. United States, 486 U.S. 531, 535 (1988)). 

 The Supreme Court has stated that a court should first inquire “whether the challenged 

actions were discretionary, or whether they were instead controlled by mandatory statutes or 

regulations.” Gaubert, 499 U.S. at 328. Where a course of action is specifically prescribed by a 

regulation or policy, an employee’s conduct cannot be discretionary. Likewise, “[w]hen a suit 

charges an agency with failing to act in accord with a specific mandatory directive, the 

discretionary function exception does not apply.” Berkovitz, 486 U.S. at 544. 
23 

 Here, the government argues that DHS and ICE exercise discretion in conducting 

investigations and determining whether to issue an immigration detainer. The government is 

correct that “challenges to the quality of an investigation or prosecution are generally barred by 

the discretionary-function exception.” Reynolds, 549 F.3d at 1113. On the other hand, when 

government employees engage in conduct proscribed by law or policy, that conduct is “separable 

from the discretionary decision to prosecute.” Id. (exception did not apply when government 

investigators were alleged to have knowingly provided false information to prosecutors). 

 In this case, Makowski has plausibly alleged that, in issuing and failing to cancel the 

immigration detainer, employees of DHS and ICE acted in a manner contrary to federal policies, 

which required ICE to promptly investigate any claims of citizenship. (See Nov. 19, 2009 

Mem.) In failing to investigate Makowski’s claim to be a citizen and to cancel the detainer, the 

federal agents therefore failed “to act in accord with a specific mandatory directive, [and] the 

discretionary function exception does not apply.” Berkovitz, 486 U.S. at 544.2

 

E. FTCA Negligence Claim against the United States (Count IV) 

 Turning to Count IV, the government argues that Makowski’s negligence claim under the 

FTCA is barred by sovereign immunity. As discussed above, the FTCA’s waiver of sovereign 

immunity is subject to a number of exceptions set forth in 28 U.S.C. § 2680. The “intentional 

tort exception” preserves sovereign immunity from suit for “[a]ny claim arising out of . . . 

 

2

 The court need not decide whether the government can satisfy the second part of the 

discretionary-function test: whether the challenged conduct is a permissible exercise of policy 

judgment. See Berkovitz, 486 U.S. at 537. The Second Circuit has held that the exception did 

not cover INS agents’ actions in detaining a U.S. citizen because these actions “are not the kind 

that involve weighing important policy choices.” Caban v. United States, 671 F.2d 1230, 1233 

(2d Cir. 1982); see also Uroza v. Salt Lake Cnty., No. 1:11CV713DAK, 2013 WL 653968, at *9 

(D. Utah Feb. 21, 2013) (relying on Caban in holding that the discretionary-function exception 

did not bar an FTCA claim based on ICE agents’ issuance of a detainer).
24 

misrepresentation.” 28 U.S.C. § 2680(h). The government argues that Makowski’s negligence 

claim falls within this category of claims, for which sovereign immunity has not been waived. 

 In Deloria v. Veterans Administration, the Seventh Circuit held that the FTCA’s 

exceptions for “misrepresentation and deceit” encompassed a claim that VA officials had 

conspired to distort the plaintiff’s medical records, resulting in the denial of his disability 

benefits. 927 F.2d 1009, 1012 (7th Cir. 1991). The court emphasized that “the United States 

retains its sovereign immunity with respect to charges of deceit and misrepresentation—

regardless of the technical terms in which they are framed.” Id. at 1013. In reaching this 

conclusion, the Seventh Circuit cited two out-of-circuit cases holding that negligent 

recordkeeping claims against federal agencies were barred under the exception for 

“misrepresentation.” See Alexander v. United States, 787 F.2d 1349 (9th Cir. 1986) (claim that 

government negligently failed to remove information from plaintiff’s record that a state court 

had ordered to be expunged was a misrepresentation claim barred by § 2680(h)); Bergman v. 

United States, 751 F.2d 314 (10th Cir. 1984) (claim that government negligently failed to correct 

classification records was barred by § 2680(h)), cert. denied, 474 U.S. 945 (1985).

 Similarly, in Omegbu v. United States, a Wisconsin district court concluded that “[t]he 

plaintiff’s allegation that the FBI or USCIS misrepresented information—whether intentionally 

or negligently—falls under the intentional tort exception of § 2680(h).” No. 10-C-765, 2011 WL 

2912703, at *4 (E.D. Wis. July 18, 2011). The court reasoned that the negligent mishandling of 

records amounts to misrepresentation, a claim barred by sovereign immunity. The court of 

appeals affirmed, stating that the FTCA’s exception for misrepresentation “bars claims against 

the United States for the willful mishandling of records.” Omegbu v. United States, 475 F. 

App’x 628, 629 (7th Cir. 2012). 
25 

 This court agrees with the government that under Deloria and Omegbu, Makowski’s 

negligence claim falls within the intentional tort exception to § 2680(h) for misrepresentation 

and is therefore barred by sovereign immunity. Count IV is dismissed. 

IV. CONCLUSION

 For the reasons explained above, the government’s motion to dismiss is granted in part 

and denied in part. Counts I, IV, and V are dismissed. Count VI is dismissed without prejudice. 

The motion is denied as to Counts II and III. 

 ENTER: 

 /s/ 

 JOAN B. GOTTSCHALL 

 United States District Judge 

DATED: March 18, 2014