UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

REPLY IN SUPPORT OF RENEWED MOTION TO DISMISS

Date: December 4, 2020 JEFFREY BOSSERT CLARK

Acting Assistant Attorney General

DOUGLAS G. SMITH

Deputy Assistant Attorney General, Civil Division

JAMES G. TOUHEY, JR.

Director, Torts Branch

PHILIP D. MACWILLIAMS

Trial Attorney

D.C. Bar No. 482883

THEODORE W. ATKINSON

Trial Attorney

D.C. Bar No. 458963

E-mail: phil.macwilliams@usdoj.gov

U.S. Department of Justice

Civil Division, Torts Branch

Benjamin Franklin Station, P.O. Box 888

Washington, DC 20044

Telephone: (202) 616-4285

Attorneys for United States of America

D.A., A.A., and LUCINDA DEL CARMEN 

PADILLA-GONZALES,

Plaintiffs,

v.

UNITED STATES OF AMERICA, 

HEARTLAND ALLIANCE FOR HUMAN 

NEEDS AND HUMAN RIGHTS, and 

HEARTLAND HUMAN CARE SERVICES, 

INC.,

Defendants.

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No. 20 C 3082

Judge Pacold
i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

I. Plaintiff’s Opposition Further Confirms That Plaintiff Is Seeking A Prohibited Recovery For 

Alleged Constitutional Torts.................................................................................................... 1

II. Plaintiff’s Claims Are Barred By the FTCA’s Discretionary Function Exception.................. 3

III. Plaintiff’s Claims Are Barred By the FTCA’s Due Care Exception...................................... 11

IV. Plaintiff’s Claims Are Barred Because There Is No Private Analogue.................................. 14

V. Plaintiff’s Claims Are Barred As A Matter of Public Policy................................................. 15

CERTIFICATE OF SERVICE ..................................................................................................... 17
ii

TABLE OF AUTHORITIES

Cases

Aguilar v. ICE,

510 F.3d 1 (1st Cir. 2007)......................................................................................................... 11

Aguilar v. United States,

No. 1:16-048, 2017 WL 6034652 (S.D. Tex. June 7, 2017)....................................................... 7

Air Shuttle Corp. v. United States,

112 F.3d 532 (1st Cir. 1997)..................................................................................................... 15

Bailor v. Salvation Army,

51 F.3d 678 (7th Cir. 1995) ........................................................................................................ 4

Bergquist v. U.S. Nat. Weather Serv.,

849 F. Supp. 1221 (N.D. Ill. 1994)............................................................................................. 5

Blanco Ayala v. United States,

-- F.3d --, 2020 WL 7050099 (4th Cir. Dec. 2, 2020) ................................................................ 4

Borquez v. United States,

773 F.2d 1050 (9th Cir. 1985) .................................................................................................. 12

Bunikyte v. Chertoff,

No. 07-164, 2007 WL 1074070 (W.D. Tex. Apr. 9, 2007) .............................................. 8, 9, 14

Castro v. United States,

608 F.3d 266 (5th Cir. 2010) ...................................................................................................... 9

Comm. Of Cent. Am. Refugees v. I.N.S.,

795 F.2d 1434 (9th Cir. 1986) .................................................................................................... 4

D.B. v. Cardall,

826 F.3d 721 (4th Cir. 2016) .................................................................................................... 14

Doe v. DiGenova,

779 F.2d 74 (D.C. Cir. 1985).................................................................................................... 12

Dorman v. Simpson,

893 F. Supp. 1073 (N.D. Ga. 1995)............................................................................................ 2

Dupree v. United States,

247 F.2d 819 (3d Cir. 1957)...................................................................................................... 12

Elgamal v. United States,

No. 13-00967, 2015 WL 13648070 (D. Ariz. July 8, 2015)..................................................... 15
iii

Farley v. Greyhound Canada Trans. Corp.,

No. 03-cv-0344 (SR), 2009 WL 1851037 (W.D.N.Y. June 26, 2009)..................................... 15

Fazaga v. Fed. Bureau of Investigation,

916 F.3d 1202 (9th Cir. 2019) .................................................................................................. 10

FDIC v. Citizens Bank & Trust Co. of Park Ridge, Ill.,

592 F.2d 364 (7th Cir. 1979).................................................................................................... 12

FDIC v. Meyer,

510 U.S. 471 (1994).............................................................................................................. 1, 10

Flores v. Lynch,

828 F.3d 898 (9th Cir. 2016) ............................................................................................ 7, 8, 14

Hatahley v. United States,

351 U.S. 173 (1956).................................................................................................................. 13

Hornbeck Offshore Transp., LLC v. United States,

569 F.3d 506 (D.C. Cir. 2009).................................................................................................... 2

J.F.G. v. Hott,

921 F.3d 204 (4th Cir. 2019) .................................................................................................... 10

Jennings v. Rodriguez,

138 S. Ct. 830 (2018)................................................................................................................ 13

Kiiskila v. United States,

466 F.2d 626 (7th Cir. 1972) ................................................................................................ 9, 10

Linder v. United States,

937 F.3d 1087 (7th Cir. 2019) .......................................................................................... 2, 9, 10

Lipsey v. United States,

879 F.3d 249 (7th Cir. 2018) ...................................................................................................... 4

Maas v. United States,

94 F.3d 291 (7th Cir. 1996) ........................................................................................................ 4

Marin-Garcia Holder,

647 F.3d 666 (7th Cir. 2011) .................................................................................................... 10

Martinez v. United States,

2020 WL 4036763 (10th Cir. July 17, 2020)............................................................................ 10

McGowan v. United States,

825 F.3d 118 (2d Cir. 2016)...................................................................................................... 14
iv

Mejia-Mejia v. ICE, No. 18-1445,

2019 WL 4707150 (D.D.C. Sept. 26, 2019)............................................................................... 5

Ms. L. v. ICE,

310 F. Supp. 3d 1133 (S.D. Cal. 2018)....................................................................... 2, 3, 11, 13

Ms. L. v. ICE,

302 F. Supp. 3d 1149 (S.D. Cal. 2018)..................................................................................... 11

Nurse v. United States, 

226 F.3d 996 (9th Cir. 2000).................................................................................................... 10

Palay v. United States,

349 F.3d 418 (7th Cir. 2003) ...................................................................................................... 6

Payne-Barahana v. Gonzales,

474 F.3d 1 (1st Cir. 2007)......................................................................................................... 11

Pena Arita v. United States,

-- F. Supp. 3d --, 2020 WL 3542256 (S.D. Tex. June 30, 2020) ....................................... passim

Powell v. United States,

233 F.2d 851 (10th Cir. 1956) .................................................................................................. 12

Prince v. Massachusetts,

321 U.S. 158 (1944).................................................................................................................. 11

Quilloin v. Walcott,

434 U.S. 246 (1978).................................................................................................................. 11

Reynolds v. United States,

549 F.3d 1108 (7th Cir. 2008) .................................................................................................... 4

Ryan v. U.S.,

INS, 974 F.3d 9 (1st Cir. 2020)................................................................................................. 15

Saks v. Sawtelle, Goode, Davidson & Troilo,

880 S.W.2d 466 (Tex. App. 1994)............................................................................................ 15

Santa-Rosa v. United States,

335 F.3d 39 (1st Cir. 2003)......................................................................................................... 4

Santosky v. Kramer,

455 U.S. 745 (1982).................................................................................................................. 11

Sickman v. United States,

184 F.2d 616 (7th Cir. 1950).................................................................................................... 12
v

Sloan v. H.U.D.,

236 F.3d 756 (D.C. Cir. 2001).................................................................................................... 5

Sutton v. United States,

819 F.2d 1289 (5th Cir. 1987) .................................................................................................... 9

Troxel v. Granville,

530 U.S. 57 (2000).................................................................................................................... 11

United States v. Dominguez-Portillo,

No. 17-MJ-4409, 2018 WL 315759 (W.D. Tex. Jan. 5, 2018)............................................... 7, 8

United States v. Gaubert,

499 U.S. 315 (1991)........................................................................................................ 4, 5, 6, 7

Van Dinh v. Reno,

197 F.3d 427 (10th Cir. 1999) .................................................................................................... 4

W.S.R. v. Sessions,

318 F. Supp. 3d 1116 (N.D. Ill. 2018)................................................................................ 11, 13

Ward v. Emmett,

37 S.W.3d 500 (Tex. App. 2001).............................................................................................. 15

Statutes

6 U.S.C. § 279(g)(2) ............................................................................................................... 13, 14

8 U.S.C. § 1232(b)(3) ................................................................................................................... 13

8 U.S.C. § 1232(c)(3)(A)................................................................................................................ 9

12 U.S.C. § 1823(e) ...................................................................................................................... 12

28 U.S.C. § 2680(a) .................................................................................................................. 3, 11
1

The government’s renewed motion laid out multiple legal grounds supporting dismissal of 

Plaintiff’s complaint. For the reasons stated in the government’s motion, the United States has not 

waived its sovereign immunity and agreed to subject itself to suit for monetary damages for claims 

such as those Plaintiff brings here, which allege constitutional violations by government officials

engaged in discretionary decision-making expressly authorized by federal law. 

In response, Plaintiff repeatedly asserts that government agents carried out their 

discretionary duties in a manner that was “harsh”, “cruel” and even “torturous”. However, no such 

characterizations change the fundamental legal principles barring this action. Nor, contrary to 

Plaintiff’s suggestion, do these legal barriers leave Plaintiff without a “remedy” (Opp’n at 1); 

Plaintiff’s complaint itself relies on decisions issuing injunctive relief in cases challenging alleged 

constitutional violations resulting from family separations at the border. (See id. at 11-12.) 

Nonetheless, the FTCA’s waiver of sovereign immunity is limited and thus, as the cases make

clear, many potential tort plaintiffs are left without a “remedy” for monetary damages.

In sum, the issue here is whether the federal government has waived its sovereign immunity 

and authorized claims for monetary damages of the sort Plaintiff brings here. It has not. Congress 

did not contemplate any such action under the FTCA, and this case should therefore be dismissed.

I. Plaintiff’s Opposition Further Confirms That Plaintiff Is Seeking A Prohibited 

Recovery For Alleged Constitutional Torts

Plaintiff does not dispute that the Supreme Court has held that plaintiffs bringing claims 

under the FTCA may not recover for constitutional torts. (See U.S. Mem. at 8-9 (citing FDIC v.

Meyer, 510 U.S. 471, 478 (1994)).) Nonetheless, Plaintiff contends that her complaint does not 

bring claims involving constitutional violations because she pleads “common-law” torts. (Opp’n
2

at 2-3.)1

 However, the law is clear that the particular labels applied to a claim do not deprive a 

plaintiff’s claim of its constitutional nature, and indeed courts routinely hold that claims pleaded 

as so-called “common-law torts” are in fact prohibited “constitutional torts” because they invoke 

alleged constitutional violations. See, e.g., Dorman v. Simpson, 893 F. Supp. 1073, 1078 (N.D. 

Ga. 1995) (“Even if the Court construed Plaintiff’s claims as common law tort claims brought 

under the FTCA, Plaintiff’s claims still would be barred by sovereign immunity because the FTCA 

does not waive immunity for tort claims which are constitutional in nature.”); Hornbeck Offshore 

Transp., LLC v. United States, 569 F.3d 506, 509 (D.C. Cir. 2009) (“merely re-label[ing] a 

violation of a federal statute as common law claims” does not establish FTCA claim).

The Seventh Circuit’s decision in Linder v. United States is instructive. There, the court 

affirmed dismissal of claims for intentional infliction of emotional distress and malicious 

prosecution – i.e., “common-law torts” – because the FTCA “does not apply to constitutional 

violations.” 937 F.3d 1087, 1091 (7th Cir. 2019). As the court explained, these “common-law” 

claims were prohibited because the complaint invoked constitutional theories and the FTCA is “a 

means to seek damages for common-law torts, without regard to constitutional theories.” Id.; see 

also Peña Arita v. United States, -- F. Supp. 3d --, 2020 WL 3542256, at *8 (S.D. Tex. June 30, 

2020) (dismissing intentional infliction of emotional distress and negligence claims based on 

family separation because “constitutional tort claims are not actionable under the FTCA”).

Here, there is no dispute that Plaintiff’s complaint likewise includes such “constitutional 

theories.” Plaintiff alleges that she and her children were subjected to the same family separation 

practices that the court ruled were likely “unconstitutional” in Ms. L. v. ICE, 310 F. Supp. 3d 1133 

(S.D. Cal. 2018), violating her equal protection and due process rights, Am. Compl. ¶¶ 78, 86-94. 

 1 Plaintiff suggests the court in C.M. and A.P.F. addressed this argument (Opp’n at 3); it did not, but rather 

addressed only whether constitutional violations could obviate the discretionary function exception.
3

Far from refuting the constitutional nature of her claims, Plaintiff’s Opposition only 

confirms it. Plaintiff maintains, for example, that: “Plaintiffs have plausibly pled that the 

government’s separation of families was unconstitutional because it violated the Plaintiffs’ Fifth 

Amendment rights to family integrity.” (Opp’n at 11 (emphasis added).) “Plaintiffs have also 

plausibly pled that the federal immigration agents’ actions violated their constitutional right to

equal protection under the law” and “constitute a clear equal protection violation.” (Id. at 12 

(emphasis added).) “Plaintiffs have plausibly pled that DHS agents violated their procedural 

rights by using family separation, threats and harsh treatment to pressure and coerce Lucinda into 

abandoning her immigration claims. Such actions are straightforward violations of procedural 

due process.” (Id. at 13 (emphasis added).) Plaintiff alleges “the Constitution deprived DHS 

agents of the discretion to pursue the course of action they did against Plaintiffs . . . .” (Id.) 

II. Plaintiff’s Claims Are Barred By the FTCA’s Discretionary Function Exception

For similar reasons, Plaintiff’s Opposition also confirms that her claims are barred by the 

FTCA’s discretionary function exception. Plaintiff does not dispute the FTCA’s plain language 

stating the discretionary function exception bars “[a]ny claim based upon the exercise or 

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

federal agency or an employee of the Government, whether or not the discretion involved be 

abused.” 28 U.S.C. § 2680(a). Instead, Plaintiff misstates the standard and argues, contrary to her 

own allegations and well-settled law, that the government actions at issue were not discretionary. 

While Plaintiff asserts in cursory fashion that DHS agents violated “regulations and 

directives” (Opp’n at 8), the law is clear that the discretionary function exception applies unless 

the government violated a legal directive that is both mandatory and specific (U.S. Mem. at 10-11 

& n.3): Plaintiff must show that “a federal statute, regulation or policy specifically prescribes a 
4

course of action for an employee to follow,” United States v. Gaubert, 499 U.S. 315, 322 (1991)

(emphasis added), by providing a “precise and optionless directive,” Maas v. United States, 94 

F.3d 291, 297 (7th Cir. 1996) (emphasis added). That is not the case here.

Likewise, under the second prong, “[t]he relevant inquiry is merely whether the conduct at 

issue is ‘susceptible to policy analysis.’” Id. at 298 (emphasis added). Thisstandard is an objective 

one; government agents’ alleged “subjective intent is irrelevant to [the] analysis.” Reynolds v. 

United States, 549 F.3d 1108, 1112 (7th Cir. 2008). Thus, asserting that government agents acted 

in “cruel fashion” (Opp’n at 8) or had some other subjective intent does not avoid the exception.2 

Applying these principles here, it is clear that the discretionary function exception applies. 

Plaintiff does not dispute that “Congress has placed the responsibility of determining where aliens 

are detained within the discretion of the Attorney General.” Comm. Of Cent. Am. Refugees v. 

I.N.S., 795 F.2d 1434, 1440 (9th Cir. 1986) (emphasis added).3 Indeed, “[d]iscretion lies at the 

heart of the DHS law enforcement function.” Blanco Ayala v. United States, -- F.3d --, 2020 WL 

7050099, at *3 (4th Cir. Dec. 2, 2020). In exercising this function, DHS agents must “make all 

the classic judgment calls the discretionary function was meant to exempt from tort liability.” Id. 

Moreover, because (among other things) immigration policy involves “vital national interests in 

law enforcement at the borders,” “DHS officers’ decisions in investigating and responding to 

potential violations of immigration law are infused with public policy considerations.” Id. at *5. 

 2 Plaintiff acknowledges as much in a footnote, agreeing that it “[m]aybe so” that “allegations about the 

DHS agents’ deliberate cruelty . . . do[] not defeat application of the DFE.” (Opp’n at 13 n.4.)

3 See also Van Dinh v. Reno, 197 F.3d 427, 433 (10th Cir. 1999) (federal statutes specify “Attorney 

General’s discretionary power to transfer aliens from one locale to another, as she deems appropriate”); 

Bailor v. Salvation Army, 51 F.3d 678, 684 (7th Cir. 1995) (whether to detain or release prisoners are policybased decisions protected by the discretionary function exception); Lipsey v. United States, 879 F.3d 249, 

255 (7th Cir. 2018) (placement decisions are susceptible to policy analysis); Santa-Rosa v. United States, 

335 F.3d 39, 44 (1st Cir. 2003) (“assignment to particular institutions or units . . . must be viewed as falling 

within the discretionary function exception to the FTCA”).
5

Accordingly, as other courts have recognized, the “zero tolerance” policy that resulted in 

family separations was not only “susceptible to” policy analysis, but “amounts to exercise of the 

prosecutorial discretion that Congress and the Constitution confer on the Attorney General.” 

Mejia-Mejia v. ICE, No. 18-1445, 2019 WL 4707150, at *5 (D.D.C. Sept. 26, 2019). It is “an 

‘administrative decision[n] grounded in social, economic, and political policy’ that this Court is 

without jurisdiction to second-guess.” Pena Arita, -- Supp. 3d --, 2020 WL 3542256, at *7. That 

conclusion is dispositive here. 

The government did not violate any mandatory and specific directives. Nonetheless, in 

the face of this law, Plaintiff attempts to avoid dismissal by citing a grab bag of allegations 

regarding “individual DHS agents’” actions in “implementing” the separation. (Opp’n at 4-5.) As 

a threshold matter, this attempt to recharacterize Plaintiff’s allegations ignores the numerous 

statements in the complaint making clear that the gravamen of Plaintiff’s claim is a challenge to 

government policies resulting in family separation. More fundamentally, in focusing on 

implementation of the alleged family separation policy, Plaintiff seeks to create a false dichotomy 

between the policy itself and its “implementation” in the field that the Supreme Court rejected in 

Gaubert. 499 U.S. at 324-25; Bergquist v. U.S. Nat. Weather Serv., 849 F. Supp. 1221, 1226 (N.D. 

Ill. 1994); see Sloan v. H.U.D., 236 F.3d 756, 762 (D.C. Cir. 2001) (claims “inextricably linked” 

to conduct protected by § 2680(a) also barred); U.S. Mem. at 14. As the court observed in 

dismissing similar family separation claims in Peña Arita, the “family separation policy itself and 

its implementation by officers in the field are discretionary” and thus “such claims are foreclosed 

by the discretionary function exception.” -- F. Supp. 3d --, 2020 WL 3542256, at *7. 

In fact, the very cases Plaintiff cites make clear that “‘[w]hen established government 

policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government 
6

agent to exercise discretion, it must be presumed that the agent’s acts are grounded in policy when 

exercising that discretion.’” Palay v. United States, 349 F.3d 418, 428 (7th Cir. 2003) (quoting 

Gaubert, 499 U.S. at 324-25). The government actor need not “belong to the policymaking or 

planning ranks of the government in order for the exception to apply.” Id. Likewise, “applicability 

of the exception depends not on the intent of the government actor ‘but on the nature of the actions 

taken and on whether they are susceptible to policy analysis.’” Id. 

Nonetheless, even if Plaintiff’s allegations had been made outside the context of family 

separation, they would still be barred because they involve precisely the sort of discretionary 

actions with respect to detainees’ conditions of confinement that courts have repeatedly held are

not actionable under the FTCA. As the cases cited at pages 14-16 and footnote 8 of the 

government’s motion make clear, courts invoking the discretionary function exception have 

rejected similar claims regarding the type of medical care detainees receive (Cosby and Patel), 

safety precautions taken when detainees are transferred (Vinzant and Menolascina), the sort of 

items to which individuals have access while in detention (Bultema and Santa-Rosa), detainees’

opportunities for communication while in detention (Harrison), the sort of computer systems and 

databases the government uses (Campos and Cruz), and general conditions such as temperature 

and crowding (Antonelli and Lineberry). (See U.S. Mem. at 14-16 & n.8; Opp’n at 1, 5, 7.) 

Thus, for example, in another family separation case that Plaintiff fails to address at all

(Peña Arita), the court dismissed allegations that government agents violated a “nondiscretionary 

duty to provide medical care” and detained an alien without “adequate safeguards” leading to his 

suicide on the ground that such decisions are barred by the discretionary function exception. -- F. 

Supp. 3d --, 2020 WL 3542256, *8-9. As the court observed, decisions regarding conditions of 

confinement such as medical care and detainee transfers are the sort of decision-making that is
7

“‘grounded in social, economic, and policy’” that the court was “without jurisdiction to secondguess.” Id. at *1 (quoting Gaubert, 499 U.S. at 323). 

Likewise, Plaintiff completely ignores the materials she incorporated in her own complaint 

that further confirm that such decisions regarding conditions of confinement are discretionary, and 

which suggest that government agents consider, under the circumstances, what measures are 

“reasonable,” “acceptable”, and “proper[].” (U.S. Mem. at 15 & n.9.) Far from laying out a set of 

mandatory and specific steps that agents must always follow, the alleged “directives” on which 

Plaintiff relies only underscore that agents have discretion with respect to these decisions.

Finally, Plaintiff ignores the repeated judgment of the courts rejecting similar “‘attacks on 

general conditions, practices, rules, or restrictions of pretrial confinement”—in the context of 

family separation or otherwise—on the ground that such claims are essentially “constitutional tort” 

claims and “the United States is not vicariously liable for constitutional torts of its officials since 

the United States has not waived sovereign immunity from such actions.’” Aguilar v. United 

States, No. 1:16-048, 2017 WL 6034652, at *4 (S.D. Tex. June 7, 2017); U.S. Mem. at 16.

Flores does not prohibit separation. Likewise, while Plaintiff attempts to argue that the 

Flores decree prohibits family separation, as the government observed in its motion (U.S. Mem. 

at 4-5, 14 n.7), the courts responsible for implementing that order have made clear that it does not. 

As the Ninth Circuit has observed, the Flores consent decree “does not address . . . the housing of 

family units and the scope of parental rights for adults apprehended with their children[,]” and it 

“does not contemplate releasing a child to a parent who remains in custody, because that would 

not be a ‘release.’” Flores v. Lynch, 828 F.3d 898, 906 (9th Cir. 2016) (emphasis added); see also 

United States v. Dominguez-Portillo, No. 17-MJ-4409, 2018 WL 315759, at *9 (W.D. Tex. Jan. 
8

5, 2018) (“[Flores] does not provide that parents are entitled to care for their children if they were 

simultaneously arrested by immigration authorities[.]”).

Nor does the Flores Agreement provide any rights to adult detainees, including any rights 

of release. Flores, 828 F.3d at 908; see also Dominguez-Portillo, 2018 WL 315759, at *14-15; 

Bunikyte v. Chertoff, No. 07-164, 2007 WL 1074070, at *16 (W.D. Tex. Apr. 9, 2007). While the 

Flores Agreement gives preference to release of minors to a parent, this preference “does not mean 

that the government must also make a parent available; it simply means that, if available, a parent 

is the first choice.” Flores, 828 F.3d at 908. Accordingly, Flores does nothing to change the 

statutes and regulations requiring minors to be transferred to ORR custody and placed in the “least 

restrictive” facility when their parents are detained by immigration authorities. Under federal law 

and the Flores agreement, such children cannot be detained in adult detention facilities. Thus, far

from prohibiting separation, once an adult is detained, the law essentially requires it.4

Likewise, nothing in Flores would authorize the government to circumvent the statutory 

procedures governing release of children from ORR custody in the event someone alleges there is 

“no uncertainty about the parentage or fitness” of the parents. (Opp’n at 8 n.1.) The statutory 

framework prescribes a process the agency follow to ensure, based on its own inquiry, that the 

individuals who will receive custody of the children are who they say they are and that the health 

and safety of the children will be ensured before they are released from ORR custody. Thus, the 

TVPRA states that a child may be placed with a proposed custodian only after ORR “makes a 

determination that the proposed custodian is capable of providing for the child’s physical and 

 4 Plaintiff’s cases further confirm that Flores does not prohibit separation: “Though family separation is a 

stated goal of both the Flores Settlement and U.S. immigration policy generally, nothing in the settlement 

agreement expresses a preference for releasing parents who have violated immigration laws. In fact, the 

context of the Flores Settlement argues against this result: the Settlement was the product of litigation in 

which unaccompanied minors argued that release to adults other than their parents was preferable to 

remaining in custody until their parents could come get them.” Bunikyte, 2007 WL 1074070, at *16.
9

mental well-being.” 8 U.S.C. § 1232(c)(3)(A). Among other things, ORR must “verify” the 

information and make its own “independent finding” after investigating the custodian’s past 

activities: “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.” Id.

Alleged constitutional violations do not invalidate the exception. Finally, contrary to 

Plaintiff’s suggestion that the Seventh Circuit “has not addressed the question” (Opp’n at 10 n.3), 

the Seventh Circuit (and other courts) have expressly held that alleged constitutional violations, 

such as those cited throughout Plaintiff’s complaint, do not invalidate the discretionary function 

exception. As the court recently held in Linder, “[n]othing in [Section 2680(a)] suggests that some 

discretionary but tortious acts are outside the FTCA while others aren’t.” 937 F.3d at 1091. 

“[U]nless § 2680(a) is to be drained of meaning, it must apply to discretionary acts that are 

tortious,” including tortious acts that “violate the Constitution.” Id. (citing Kiiskila v. United 

States, 466 F.2d 626, 627-28 (7thCir. 1972)). Accordingly, in Linder, the court dismissed the tort 

claims under the FTCA’s discretionary function exception even though plaintiff alleged that the 

government’s tortious acts violated the Sixth Amendment’s Confrontation Clause. Id. at 1090.

The cases Plaintiff cites from outside the circuit do not govern here, but in any event many 

are mischaracterized. For example, while Plaintiff cites dicta from the Fifth Circuit panel in Sutton

v. United States, 819 F.2d 1289 (5th Cir. 1987) to argue that the discretionary function exception 

isinvalidated by alleged constitutional violations(Opp’n at 10), Plaintiff ignores the Fifth Circuit’s 

subsequent en banc ruling in Castro v. United States reinstating a district court decision rejecting 

this position. 608 F.3d 266 (5th Cir. 2010). Thus, when this same argument recently was raised 

before a district court in the Fifth Circuit in another family separation case, the court rejected it, 
10

holding the exception barred plaintiff’s claims. Peña Arita, -- F. Supp. 3d --, 2020 WL 3542256, 

at *8.

The other cases Plaintiff cites are similar. While it is true that some courts have suggested 

constitutional violations may invalidate the discretionary function exception under some 

circumstances, that is not the law in the Seventh Circuit and many other jurisdictions.5 Moreover, 

Plaintiff never attempts to reconcile such a rule with the Supreme Court’s decision in Meyer which 

made clear that the United States “simply has not rendered itself liable under § 1346(b) for 

constitutional tort claims.” 510 U.S. at 478. As the Seventh Circuit noted in Linder, tort claims 

invoking “constitutional theories” are prohibited under the FTCA. 937 F.3d at 1091.

Nonetheless, Plaintiff’s argument independently fails because here there was no violation 

of any clearly established constitutional right. As noted in the government’s motion, there was no 

clearly-established right to family integrity in the context of immigration detention. (U.S. Mem. 

at 19 n.12.) See Reyna as next friend of J.F.G. v. Hott, 921 F.3d 204, 210-11 (4th Cir. 2019) 

(“[W]e . . . have been unable to find a substantive due process right to family unity in the context 

of immigration detention pending removal.”); Marin-Garcia Holder, 647 F.3d 666, 674 (7th Cir. 

2011) (“nothing in the Constitution prohibits” separation of citizen children from parents when 

 5 For example, in Nurse v. United States, the Ninth Circuit indicated there was no across-the-board 

prohibition on invoking the exception in cases alleging the government violated the Constitution, noting: 

“we do not make any decision regarding the level of specificity with which a constitutional proscription 

must be articulated in order to remove the discretion of a federal actor.” 226 F.3d 996, 1002 (9th Cir. 2000). 

Moreover, the same court subsequently held that “FTCA claims may be able to proceed” unless a court 

“determines that Defendants did violate a nondiscretionary federal constitutional or statutory directive.” 

Fazaga v. Fed. Bureau of Investigation, 916 F.3d 1202, 1251 (9th Cir. 2019) (emphasis added). Similarly, 

while the Tenth Circuit in Martinez v. United States observed that some courts had ruled the discretionary 

function defense inapplicable under certain circumstances where government conduct was unconstitutional, 

the court itself declined to decide the issue because the plaintiff’s Fourth Amendment arguments were not 

persuasive. 2020 WL 4036763, at *6 (10th Cir. July 17, 2020). Finally, Plaintiff mischaracterizes the 

Seventh Circuit’s ruling in Kiiskila, 466 F.2d at 627 (Opp’n at 11 n.3), which in fact held that the 

discretionary function exception applied despite alleged First Amendment violations and which the Seventh 

Circuit specifically cited in its decision in Linder. 
11

parents deported); Aguilar v. ICE, 510 F.3d 1, 22 (1st Cir. 2007) (rejecting due process right to 

family visitation in immigration detention); Payne-Barahana v. Gonzales, 474 F.3d 1, 2 & n.1 (1st

Cir. 2007) (“The circuits that have addressed the constitutional issue (under varying incarnations 

of the immigration laws and in varying procedural postures) have uniformly held that a parent’s 

otherwise valid deportation does not violate a child’s constitutional right.”).

6

Moreover, Plaintiff here was being held for a criminal immigration violation and, as even 

the Ms. L. court recognized, “parents and children may lawfully be separated when the parent is 

placed in criminal custody.” 310 F. Supp. 3d at 1143. 

III. Plaintiff’s Claims Are Barred By the FTCA’s Due Care Exception

Plaintiff’s claims also are barred by the FTCA’s “due care exception,” which prohibits

“[a]ny claim based upon an act or omission of an employee of the Government, exercising due 

care, in the execution of a statute or regulation, whether or not such statute or regulation be valid.” 

28 U.S.C. § 2680(a). While Plaintiff argues that, under the Fourth Circuit’s decision in Welch, the 

exception only applies where a statute or law requires certain conduct, as Plaintiff implicitly 

acknowledges (Opp’n at 14), the Seventh Circuit has never adopted this standard, which is 

inconsistent with the statute’s plain language. Section 2680 only references “execution” of a 

statute or regulation—language that is broad and encompasses both situations where a statute 

“requires” certain actions as well as circumstances where it merely “authorizes” certain actions. 

 6 Moreover, even under the later-decided cases Plaintiff cites, any alleged right to family integrity would 

not require Plaintiff’s release to avoid separation. See W.S.R. v. Sessions, 318 F. Supp. 3d 1116, 1133 (N.D. 

Ill. 2018) (there is no authority for “the proposition that the substantive due process to family integrity 

dictates release of the parents (as distinct from reunification)”); Ms. L.v. ICE, 302 F. Supp. 3d at 1159 n.3 

(plaintiffs did not challenge the decision to detain adult aliens while in removal proceedings for the “sound 

reasons” that the law requires detention). And, the earlier-decided cases Plaintiff cites do not even involve 

detainees. See, e.g., Santosky v. Kramer, 455 U.S. 745 (1982) (termination of parental rights); Troxel v. 

Granville, 530 U.S. 57 (2000) (visitation rights of grandparents); Prince v. Massachusetts, 321 U.S. 158, 

166 (1944) (parental right to give children religious training and encourage them in the practice of religious 

belief); Quilloin v. Walcott, 434 U.S. 246 (1978) (right to challenge adoption).
12

Thus, in FDIC v. Citizens Bank & Trust Co. of Park Ridge, Ill., the Seventh Circuit applied the 

due care exception in a case involving 12 U.S.C. § 1823(e), under which the “FDIC was authorized

to enter into purchase and assumption agreements with respect to the assets of failing or closed 

banks.” 592 F.2d 364, 366 (7th Cir. 1979). Likewise, in Sickman v. United States, the Seventh 

Circuit held that landowners’ claims were barred by the due care exception because the 

government’s actions were “authorized” by the Migratory Bird Treaty Act, and indeed did so while 

simultaneously finding that the government actions were “discretionary” and thus fell within the

discretionary function exception. 184 F.2d 616, 619 (7th Cir. 1950). Accordingly, the Seventh 

Circuit’s prior rulings are inconsistent with the standard Plaintiff asks this Court to adopt. 

Indeed, contrary to Plaintiff’s suggestion, numerous courts have similarly held that the due 

care exception applies where government employees are “authorized by” or act “pursuant to” 

regulations. See, e.g., Borquez v. United States, 773 F.2d 1050, 1053 (9th Cir. 1985) (due care 

exception barred claim where Secretary of the Interior was “authorized, in his discretion, to transfer 

. . . the care, operation, and maintenance of all or any part of the project works, subject to such 

rules and regulations as he may prescribe”); Doe v. DiGenova, 779 F.2d 74, 88 n.26 (D.C. Cir. 

1985) (actions authorized by regulations protected by due care exception); Dupree v. United States, 

247 F.2d 819, 824 (3d Cir. 1957) (exception applies “[w]here government employees act pursuant 

to and in furtherance of regulations”); Powell v. United States, 233 F.2d 851, 855 (10th Cir. 1956) 

(due care exception barred claims based on employees’ acts “performed under and in furtherance 

of the regulation . . . even though the regulation may be irregular or ineffective”).

Nonetheless, even under the standard Plaintiff advocates, the exception would apply here 

because the statutory and regulatory framework requires separation where a parent is detained. 

While Plaintiff argues federal laws did not require her detention and separation from her children 
13

because they do not reference “separating families” (Opp’n at 16), the INA “mandate[s] detention 

of applicants for admission until certain [removal] proceedings have concluded.” Jennings v. 

Rodriguez, 138 S. Ct. 830, 842 (2018). Once Plaintiff was detained, her children became 

“unaccompanied” alien children, 6 U.S.C. § 279(g)(2), and the TVPRA required that DHS “shall 

transfer the custody of such child to [ORR] not later than 72 hours after determining that such 

child is an unaccompanied alien child,” 8 U.S.C. § 1232(b)(3) (emphasis added). The children

could not be kept in an adult detention facility with their mother. Thus, federal law not only 

authorized, but mandated the separation. Indeed, the very cases Plaintiff cites agree that, “[w]hen 

a parent is charged with a criminal offense, the law ordinarily requires separation of the family.” 

Ms. L, 310 F. Supp. 3d at 1139 (emphasis added); W.S.R., 318 F. Supp. 3d at 1125 (“The fathers’ 

criminal detentions necessitated the separation of W.S.R. and C.D.A.”).7

Likewise, Plaintiff’s assertion that federal agents failed to act with “due care” because they 

allegedly acted in a “cruel” or “tortious” manner in carrying out the separation misconstrues the 

due care exception. The “due care” inquiry asks only whether the government acted pursuant to 

statutes or regulations. Hatahley v. United States, 351 U.S. 173, 181 (1956). Plaintiffs do not 

allege that agents deviated from the statutory dictates of the TVPRA in transferring custody of 

Plaintiff’s children to ORR—in fact, the transfer was statutorily required. The conduct upon which 

Plaintiff’s claims are based—the separation of Plaintiff from her children—resulted from the 

government’s enforcement of federal statutes and thus the due care exception still applies. 

Plaintiff’s interpretation would effectively remove the exception from the FTCA, allowing 

plaintiffs to sue wherever they allege the government failed to act with “due care”—i.e., 

negligently or tortiously. But every claim under the FTCA alleges tortious or negligent conduct. 

 7 Plaintiff suggests she should have been granted “parole” (Opp’n at 16 n.6), but neither her complaint nor 

Opposition show she meets the statutory requirements for parole, much less that she sought it. 
14

IV. Plaintiff’s Claims Are Barred Because There Is No Private Analogue 

Plaintiff’s claims further fail because the government actions Plaintiff attacks have no

private analogue. While Plaintiff argues the immigration cases dismissing FTCA claims on this 

ground are not applicable because they involved “quasi-adjudicative” decisions (Opp’n at 23), just 

as the government is the only entity with authority to “adjudicate” immigration status, so too it is 

the only entity with authority to “enforce” such determinations: private parties do not. Moreover, 

here the government did make such a determination, concluding that Plaintiff’s children were 

“unaccompanied alien children” and transferring them to ORR custody on that ground.8 

In any event, many of the cases the government cited did not involve “quasi-adjudication.” 

Rather, they involve the sort of decisions to prosecute and detain individuals charged with violating 

federal laws that are solely within the government’s authority, regardless of whether they occur 

within the immigration context or not: “Private persons cannot establish facilities to detain other 

persons – only the government can, either on its own or through a government contractor.” 

McGowan v. United States, 825 F.3d 118, 127 (2d Cir. 2016). The fact that a plaintiff purports to 

bring “state law causes of action” for torts under the FTCA does not establish a private analogue 

where the alleged tortious conduct relates to functions that only the government can perform. (See

Opp’n at 18-22.) To hold to the contrary would mean there would be a private analogue in every 

 8 In fact, Plaintiff appears to dispute that determination, arguing without basis that the children were not 

UACs. (Opp’n at 9 n.2.) However, the statutory UAC definition is a broad one that includes circumstances 

where a parent is physically present but nevertheless unavailable to provide care and physical custody. 6 

U.S.C. § 279(g)(2); D.B. v. Cardall, 826 F.3d 721, 734 (4th Cir. 2016). Of course, a parent who is detained 

in criminal custody or secure detention pending removal proceedings is no longer available to provide care 

and physical custody. In any event, the Flores Agreement precludes detention of minors in secure detention 

facilities (absent circumstances not present here), and always precludes placing children in secure adult 

detention. Under Flores, “[DHS] must transfer the minor to a non-secure, licensed facility.” 828 F.3d at 

902-03; Bunikyte, 2007 WL 1074070 at *16 (under Flores, DHS must “releas[e] the children to adult 

relatives not in custody, adult friends designated by their parents, or even state-operated foster care”). Thus, 

separation occurs regardless of the UAC designation. Nonetheless, Plaintiff’s argument makes clear that 

Plaintiff’s claims in fact attack this “quasi-adjudicative” determination regarding the status of the children.
15

FTCA action, thereby reading this requirement out of the statute. See also, e.g., Air Shuttle Corp. 

v. United States, 112 F.3d 532, 537 (1st Cir. 1997) (enforcement decision had no private analogue 

and thus did not give rise to FTCA action); Ryan v. U.S. INS, 974 F.3d 9, 26 (1st Cir. 2020) (“[A]

private party cannot initiate proceedings to remove a noncitizen from the country. Nor does 

removal remotely resemble any type of civil remedy available to private litigants.”); Elgamal v. 

United States, No. 13-00967, 2015 WL 13648070, at *5 (D. Ariz. July 8, 2015) (“immigration 

matters” are “an inherently governmental function”).

V. Plaintiff’s Claims Are Barred As A Matter of Public Policy

Finally, Plaintiff’s claims are barred because her alleged injuries resulted from her criminal 

conduct in entering the United States illegally. While Plaintiff now claims Texas law applies (her 

complaint does not specify which law applies), as the government’s motion makes clear, this is a 

general principle that applies under the law of many states – including Texas. See Saks v. Sawtelle, 

Goode, Davidson & Troilo, 880 S.W.2d 466, 470 (Tex. App. 1994) (“[P]ublic policy bars recovery 

for injuries arising from a knowing and willful crime”); Ward v. Emmett, 37 S.W.3d 500, 502 (Tex. 

App. 2001) (“Courts ... have used this rule, along with public policy principles, to prevent a 

plaintiff from recovering damages that arose out of his or her own illegal conduct.”). 

Moreover, while Plaintiff argues that it is “disturbing” to apply this principle in the 

immigration context (Opp’n at 25), as the government’s motion notes, the principle contains no 

such exception and has in fact been applied by other courts where immigrants suffered alleged 

torts (and even death) while “attempting to illegally enter the United States.” Farley v. Greyhound 

Canada Trans. Corp., No. 03-cv-0344 (SR), 2009 WL 1851037, at *3 (W.D.N.Y. June 26, 2009).9

Plaintiff’s complaint should be dismissed.

 9 The assertion that certain claims were excluded from this argument (Opp’n at 25 n.13) is inaccurate.
16

Date: December 4, 2020 Respectfully submitted,

JEFFREY BOSSERT CLARK

Acting Assistant Attorney General

DOUGLAS G. SMITH

Deputy Assistant Attorney General, Civil Division

JAMES G. TOUHEY, JR.

Director, Torts Branch

s/Phil MacWilliams

PHILIP D. MACWILLIAMS

Trial Attorney

D.C. Bar No. 482883

THEODORE W. ATKINSON

Trial Attorney

D.C. Bar No. 458963

E-mail: phil.macwilliams@usdoj.gov

U.S. Department of Justice

Civil Division, Torts Branch

Benjamin Franklin Station, P.O. Box 888

Washington, DC 20044

Telephone: (202) 616-4285

Attorneys for United States of America
17

CERTIFICATE OF SERVICE

I hereby certify that on December 4, 2020, I electronically transmitted the attached 

document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of 

Electronic Filing to all CM/ECF registrants.

s/Phil MacWilliams

PHILIP D. MACWILLIAMS

Attorney for United States of America