The Parent Trap: Constitutional Violations and the Federal Tort Claims Act's Discretionary Function Exception

IntroductionIn 2003, Monica Castro, an American citizen, saw her American infant Rosa removed from the country by the U.S. border patrol as part of the deportation proceedings of the child's father.1 The border patrol was not forthcoming as to where Rosa was sent, and Ms. Castro would not see Rosa again for three years, at which point Rosa did not recognize her own mother.2 In 2006, Ms. Castro sued the United States under the Federal Tort Claims Act (FTCA) for violations of her daughter's Fourth and Fifth Amendment rights; she also sued for violations of state tort law, including unlawful detention and unlawful removal of her daughter from the country by the border patrol.3The United States moved to dismiss, arguing that sovereign immunity barred the suit under the "discretionary function" exception to the FTCA.4 The FTCA is a limited waiver of the government's sovereign immunity, and the discretionary function exception specifically excludes from this waiver any action by government employees that involves individual judgment based on considerations of public policy.5 Ms. Castro argued that violating her daughter's constitutional rights cannot be understood as within the discretion of the border patrol.6 The district court rejected her argument, concluding instead that the border patrol agents' actions fell within the discretionary function exception to the FTCA because they met the discretionary function test enunciated by the U.S. Supreme Court in 1991 in United States v. Gaubert.7On appeal to the Fifth Circuit, a three-judge panel reversed, concluding that the discretionary function exception could not cover constitutional violations when coupled with state tort claims by government employees.8 The court then remanded the case to the district court to determine if the border patrol had violated the constitutional rights of the child.9 On rehearing to the Fifth Circuit sitting en banc, however, the court found that the border patrol's actions satisfied the Gaubert test and thus fell within the discretionary function exception.10 Interestingly, Judge Dennis, in his concurrence, agreed that dismissal was appropriate but noted that the Gaubert test must be read to exclude constitutional violations from the discretionary function exception.11Part I of this Comment introduces the different approaches espoused by the en banc majority, by concurring Judge James L. Dennis, and by dissenting Judge Carl E. Stewart.12 Part II then examines the history of the FTCA and Supreme Court precedent regarding the discretionary function exception, and tests the three approaches' fidelity to this precedent.13 Finally, Part III argues that the majority's view is the strongest because it coherently incorporates Supreme Court precedent and, consistently with the FTCA, limits the government's liability if a constitutional violation was not obvious to the government actor.14I. Baby DeportedMs. Castro, a U.S. citizen, had her daughter, Rosa, in 2002 with an undocumented Mexican immigrant, Omar Gallardo.15 Ms. Castro and Mr. Gallardo lived together in Texas at the time.16 Ms. Castro alleged that her relationship with Mr. Gallardo was abusive, although the abuse never extended to their infant daughter, and in November 2003, she left their home without her daughter after an argument with Mr. Gallardo. 17 Ms. Castro regretted her decision and tried to get her daughter back by going to the police and Texas Child Protective Services, but she was told that without a custody order, Mr. Gallardo had as much of a right to the child as she did.18 Ultimately, Ms. Castro decided to alert the U.S. Border Patrol to her husband's status as an undocumented immigrant.19 A border patrol agent told Ms. Castro that they would apprehend Mr. Gallardo and asked her to be present when this occurred so they could turn the child to her; Ms. Castro declined to do so out of fear.20 As a result, when the border patrol detained Mr. Gallardo, the child was taken along with him and detained at the border patrol station. …