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

Background

D.J.C.V., a minor child, and G.C., his father, sued the United States over their separation by federal immigration authorities. The first period lasted from May 2, 2018, when officials took D.J.C.V. from G.C. and detained G.C. in secure detention, until October 10, 2018, when G.C. was released on bond. The second period lasted from October 10 until October 15, 2018, when the two were reunited after G.C. obtained emergency court relief.

The plaintiffs asserted intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence under the Federal Tort Claims Act, which can allow certain tort suits against the United States. They also asserted claims for torture, persecution, and inhumane acts under the Alien Tort Statute. The Government moved to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction and under Rule 12(b)(6) for failure to state a claim.

First Separation: May 2 to October 10, 2018

The court found a factual dispute about why officials separated G.C. and D.J.C.V. The plaintiffs alleged that the separation resulted from the administration’s Zero Tolerance and family-separation policies. The Government argued that the separation instead resulted from G.C.’s prior criminal history and the resulting decisions to detain him in a secure facility and place D.J.C.V. separately.

That distinction mattered because the Federal Tort Claims Act generally preserves the United States’ sovereign immunity for certain government actions. If the separation resulted from the Zero Tolerance policy, the court concluded at this stage that the discretionary-function, due-care, and misrepresentation exceptions would not bar the plaintiffs’ Federal Tort Claims Act claims. The court also concluded that the plaintiffs had identified private-law analogues for their emotional-distress and negligence claims.

If, instead, G.C.’s criminal history drove the detention and separation decisions, the court stated that one or more Federal Tort Claims Act exceptions would apply. The court said that detention decisions could fall within the discretionary-function exception, mandatory detention could fall within the due-care exception, and housing D.J.C.V. separately could also be protected by the due-care exception under the Government’s account.

Because the available materials did not resolve which policy or reason actually caused the first separation, the court ordered limited jurisdictional discovery. It did not decide the Government’s Rule 12(b)(6) challenge to the claims based on this period.

Second Separation: October 10 to October 15, 2018

After G.C. was released from immigration detention, the court held that he was available to provide care and physical custody for D.J.C.V. As a result, D.J.C.V. no longer fit the statutory definition of an unaccompanied child that had supported the earlier separation. The court rejected the Government’s argument that the Federal Tort Claims Act’s discretionary-function or due-care exceptions protected the continued five-day separation.

The court also held that the complaint plausibly stated intentional-infliction-of-emotional-distress, negligent-infliction-of-emotional-distress, and negligence claims for this period. The allegations included the earlier months of separation, the brief and distressing visit after G.C.’s release, the Government’s refusal to reunite them immediately, and the alleged emotional harm to both plaintiffs.

The court therefore denied the Government’s motions to dismiss the Federal Tort Claims Act claims concerning the October 10-to-15 separation, both for lack of subject-matter jurisdiction and for failure to state a claim.

Alien Tort Statute Claims

The court granted the Government’s motion to dismiss the plaintiffs’ Alien Tort Statute claims for lack of subject-matter jurisdiction. It held that the Alien Tort Statute provides jurisdiction and a cause of action but does not expressly waive the United States’ sovereign immunity. The court declined the plaintiffs’ request to adopt a different interpretation.

Disposition

The court ordered jurisdictional discovery about the basis for the first separation, denied the motions to dismiss the Federal Tort Claims Act claims concerning the second separation, and granted the motion to dismiss the Alien Tort Statute claims for lack of subject-matter jurisdiction. It directed the parties to propose a plan for merits discovery concerning the second separation.