D.J.C.V. v. United States

Background

D.J.C.V., a minor child, and G.C., his father, brought claims under the Federal Tort Claims Act, a law that permits certain claims against the United States for conduct by federal employees. The court was considering the Government’s motion to dismiss.

The opinion identifies two separate periods of separation:

- The first began on May 2, 2018, when Department of Homeland Security agents took D.J.C.V. away from G.C. and detained G.C. This period ended on October 10, 2018, when G.C. was released from secure detention. - The second began on October 10, 2018, and ended on October 15, 2018, when Judge Hellerstein ordered that G.C. and D.J.C.V. be reunited after granting G.C.’s petition challenging his detention.

First Separation Period

The court made a preliminary determination that a separate analysis applied to the first period. It needed to determine whether G.C.’s criminal history involving domestic violence, rather than the Attorney General’s “Zero Tolerance” policy announced on April 6, 2018, actually caused the initial separation.

The Federal Tort Claims Act contains exceptions for claims based on certain government actions, including actions involving due care in carrying out a statute or regulation and discretionary functions. The court stated that, if G.C.’s criminal history alone drove the initial separation, the Government would be immune from suit under one of those exceptions, and the court would lack subject-matter jurisdiction over the claim for the first period.

The parties agreed that the court could order jurisdictional discovery—limited information gathering directed at deciding whether the court has authority to hear the claim. The court ordered that discovery to begin immediately. It limited the discovery to information that could reliably show whether the separation was based on G.C.’s criminal history or on the broader family-separation policy. The court also allowed very limited discovery about earlier government separation decisions involving families in which a parent had a similar criminal history, so plaintiffs could test their position that the criminal-history explanation was pretextual. The parties were directed to submit a joint discovery plan by April 19, 2021, with discovery expected to finish in approximately six weeks.

Second Separation Period

The Government argued that the second separation was required by the Trafficking Victims Protection Reauthorization Act. According to the Government, once a child was in the custody of the Office of Refugee Resettlement, that law required the agency to determine that the child’s custodian could provide for the child’s physical and mental well-being before releasing the child. The Government represented that it did not have time to make that determination before Judge Hellerstein ordered reunification.

The Government argued that the Federal Tort Claims Act’s due-care and discretionary-function exceptions protected it from suit for this period as well. The court said the Government had not met its burden because the pleadings did not establish that the required determination could not have been made before G.C.’s release or within a shorter period afterward.

Ruling and Effect

The court stated that it would deny the Government’s motion to dismiss as to the second period and allow plaintiffs’ claim concerning the five-day separation from October 10 through October 15, 2018, to go forward. The court did not order merits discovery for that period before issuing the full opinion. The order instead provided advance notice of the ruling to help the parties coordinate discovery concerning the first period. Judge Paul A. Engelmayer signed the order on April 9, 2021.