K.O. v. Sessions, III

• Court: District Court, District of Columbia
• Decided: June 23, 2020
• Docket: Civil Action No. 2020-0309
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

K.O., et al., : : Plaintiffs, : Civil Action No.: 20-309 (RC) : v. : Re Document Nos.: 51, 64, 66 : U.S. IMMIGRATION AND CUSTOMS : ENFORCEMENT, et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING DEFENDANTS’ MOTION TO DISMISS; DENYING PLAINTIFFS’ MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT

Plaintiffs in this putative class action are minor non–United States citizen children who,

after arriving in the United States either at or between designated ports of entry, were forcibly

separated from their parents by the Department of Homeland Security (DHS) or one of its sub-

agencies, Customs & Border Patrol (CBP), Immigration and Customs Enforcement (ICE), or

U.S. Customs & Immigration Services (USCIS). Their case arrived before this Court upon

transfer from the District of Massachusetts. In that court, Plaintiffs had filed their Complaint,

ECF No. 1, and their First Amended Complaint (“Am. Compl.”), ECF No. 45, asserting

Constitutional and related statutory claims against a number of individual federal officials,

including the former Attorney General, the now-former Secretary of DHS, the now-former White

House Chief of Staff, and a Senior Advisor to the President (collectively, with others identified

below, “the individual Defendants”). The individual Defendants moved to dismiss the First

Amended Complaint. See Mot. Dismiss, ECF No. 51. While that motion was pending, Plaintiffs

sought leave to amend their complaint a second time. They proposed to add the United States as a defendant and to add eight counts against the United States under the Federal Tort Claims Act

(FTCA). Pls.’ Mot. for Leave to File Second Am. Compl. (“Mot. Amend”), ECF No. 64. The

individual Defendants opposed this, as did the United States, which appeared specially for the

limited purpose of opposing the motion.

Judge Hillman of the District of Massachusetts granted the individual Defendants’

Motion to Dismiss for lack of personal jurisdiction and improper venue. Mem. of Decision and

Order (“Mem.”), ECF No. 86. He transferred the case to this District pursuant to 28 U.S.C.

§ 1631. Id. at 14. Judge Hillman did not address the individual Defendants’ additional

arguments that the First Amended Complaint should be dismissed for failure to state a claim, and

he explicitly left the Motion to Amend open for this Court to resolve. See id. at 14 & n.9.

The Court has received supplemental briefing from Plaintiffs, from the individual

Defendants, and from the United States. The individual Defendants maintain that the First

Amended Complaint should be dismissed for failure to state a claim. Plaintiffs’ motion to file a

Second Amended Complaint adding claims against the United States is opposed by both the

individual defendants and by the United States, which is still not a party. In addition to these

pending motions, the individual Defendants have filed a Notice of Related Case, ECF No. 90,

which the Court also addresses here. For the reasons stated below, the Court dismisses the First

Amended Complaint for failure to state a claim, and denies leave to file a Second Amended

Complaint.

I. BACKGROUND

This Memorandum Opinion primarily concerns a motion to dismiss for failure to state a

claim and a motion to amend a complaint. On a motion to dismiss for failure to state a claim, the

Court accepts as true the factual allegations in the complaint and construes them liberally in the

2 Plaintiffs’ favor. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135

(D.D.C. 2000). When considering a motion to amend a complaint, the Court evaluates the

proposed amended complaint by applying essentially the same standard it would on a motion to

dismiss. See James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996) (citing Foman

v. Davis, 371 U.S. 178, 181–82 (1962)). Accordingly, for now, the Court accepts as true the

Plaintiffs’ factual allegations in their complaints. In recounting the alleged factual background

the Court cites to the First Amended Complaint for two reasons. First and foremost, that

complaint is operative at this time. Second, the facts of the case pertain much more to the

individual Defendants’ arguments in their motion to dismiss the First Amended Complaint for

failure to state a claim, whereas the arguments against leave to file a Second Amended

Complaint are almost wholly procedural. As described below, the arguments against leave to

amend concern the procedural history of the claims against the United States, and these

procedural arguments have nothing to do with the claims against the individual defendants.

Because of the completely separate sets of arguments on the two motions, there is little risk of

confusion, especially considering that the two complaints are substantively identical with regard

to the individual Defendants. Compare First Am. Compl., with Proposed Second Am. Compl.

(“Prop. Compl.”), ECF No. 64-1 (alleging nearly identical facts, and adding only claims against

the United States and acknowledgment of certain of the individual defendants’ departures from

positions in the government).

A. Legal and Factual Background

Many non-citizens arriving in the United States without immigration documentation are

subject to the “expedited removal” proceedings created in the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. 104–208, 110 Stat. 3009–546

3 (codified as amended in scattered sections of 8 U.S.C.). These procedures were intended “to

expedite the removal from the United States of aliens who indisputably have no authorization to

be admitted” while allowing those claiming asylum the opportunity to have their claims heard.

Grace v. Whitaker, 344 F. Supp. 3d 96, 107 (D.D.C. 2018) (quoting H.R. Rep. No. 104-828 at

209 (1996)). Under the Refugee Act of 1980, any non-citizen “who is physically present in the

United States or who arrives in the United States . . . irrespective of [their] status, may apply for

asylum.” 8 U.S.C. § 1158. Under “expedited removal” procedures, the Department of

Homeland Security may remove an alien from the United States “without further hearing or

review[,] unless the alien indicates either an intention to apply for asylum under [8 U.S.C.

§ 1158] or a fear of persecution” supporting a claim to withholding of removal. Id.

§ 1225(b)(1)(A)(i). Non-citizens in “expedited removal” are nonetheless eligible to pursue

asylum provided they demonstrate a credible fear of persecution. Id. § 1225(b)(1)(B). They are,

however, to be “detained pending a final determination of credible fear of persecution and, if

found not to have such a fear, until removed.” Id. § 1225(b)(1)(B)(iii)(IV).

Detention of minors is handled differently from detention of adults. The Stipulated

Settlement Agreement in Flores v. Reno (“the Flores Agreement”), Am. Compl. Ex. 1,

Stipulated Settlement Agreement, Flores v. Reno, No. 85-4544-RJK(Px) (C.D. Cal. Jan. 17,

1997), ECF No. 45-1, is foundational for many later-enacted statutes and regulations governing

the detention of minors in immigration detention. It defines a minor as “any person under the

age of eighteen (18) years who is detained in the legal custody of the [Immigration and

Naturalization Service,]” which was the predecessor to those agencies involved in this litigation.

Id. at 4. The Flores Agreement requires the federal government to “place each detained minor in

the least restrictive setting appropriate to the minor’s age and special needs” and “to treat all

4 minors in its custody with dignity, respect and special concern for their particular vulnerability as

minors.” Id. at 7. It also requires that “[w]here the [government] determines that the detention

of the minor is not required either to secure his or her timely appearance before the [government]

or the immigration court, or to ensure the minor’s safety or that of others, the [government] shall

release a minor from its custody without unnecessary delay.” Id. at 9–10. In order of preference,

the government is required to release the minor to a parent, a legal guardian, an adult relative,

another adult designated by a parent or legal guardian, a licensed program, or another adult

individual “when it appears there is no other likely alternative . . . and family reunification does

not appear to be a reasonable possibility.” Id. at 9.

In 2002 the Homeland Security Act (“HSA”) transferred a number of INS’s immigration

responsibilities to DHS, including to USCIS, CBP, and ICE. Homeland Security Act of 2002,

Pub. L. No. 107-296, 116 Stat. 2135. The Office of Refugee Resettlement (ORR) within the

Department of Health and Human Services (HHS) was tasked with caring for children lacking

“lawful immigration status in the United States” for whom “there is no parent or legal guardian

in the United States; or . . . no parent or legal guardian is available to provide care and physical

custody.” 6 U.S.C. § 279(a)–(b), (g). These minors are referred to as unaccompanied alien

children or “UACs.” See id. The Trafficking Victims Protection Reauthorization Act, passed in

2008 reaffirmed ORR’s responsibilities in caring for UACs. See 8 U.S.C. § 1232(a)(1).

Provisions of the TVPRA, as amended, codify the Flores Agreement’s requirements that UACs

in ORR custody “shall be promptly placed in the least restrictive setting that is in the best interest

of the child,” ideally with “a suitable family member” but also with an organization if no family

member is available. Id. § 1232(c)(2)(A). A UAC can be placed with a proposed custodian if

HHS “makes a determination that the proposed custodian is capable of providing for the child’s

5 physical and mental well-being,” based on, “at a minimum . . . 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.

§ 1232(c)(3)(A).

While in DHS custody, individuals may be prosecuted for criminal violation of

immigration laws under, among other provisions, Id. § 1325. This statute makes it a crime for

any noncitizen to “enter[] or attempt[] to enter the United States at any time or place other than

as designated by immigration officers,” to “elude[] examination or inspection by immigration

officers,” or to “attempt[] to enter or obtain[] entry to the United States by a willfully false or

misleading representation or the willful concealment of a material fact.” Id. § 1325(a).

B. Factual Background

1. Plaintiffs’ Experiences

Two named plaintiffs in this putative class action are identified as K.O. and E.O., Jr.

According to their pleadings, they arrived in Texas on May 19, 2018, having traveled from

Mexico with their mother, identified as L.J. Am. Compl. ¶ 138. K.O. was nine years old at the

time and E.O., Jr. was seventeen. Id. ¶ 139. After walking for several hours, the family was

stopped by a CBP agent and driven to a border patrol detention facility. Id. ¶¶ 140–43. At the

facility, E.O., Jr. was separated from his mother and sister and was taken to a crowded room full

of other teenagers. Id. ¶ 144–45. K.O. and L.J. were taken to a different holding cell containing

other mothers and younger children. Id. ¶ 147. After “[a]bout twelve to fourteen hours,” L.J.

was separated from K.O. and taken to another room with other mothers. Id. ¶ 149.

L.J. was placed in criminal custody, indicted for illegal entry, and sentenced to time

served after pleading guilty. Id. ¶ 155. She was then returned to civil immigration custody. Id.

6 ¶ 156. At no point did the government suggest any “abuse, neglect, or unfitness,” as a parent on

L.J.’s part, nor was there any suggestion “that L.J. was not acting in the best interests of her

children.” Id.

K.O. and E.O., Jr. were placed on a bus together—but not permitted to touch one

another—and were taken to a different immigration facility, where they were placed in cells

facing one another. Id. ¶ 157. They were not allowed to speak to one another. Id. ¶¶ 157–59.

Younger children, including K.O., were crying, as was E.O., Jr. at times. Id. ¶¶ 161–62. E.O.,

Jr. was accused of lying about his age and was kicked multiple times in the back by a federal

agent. Id. ¶ 164. K.O. had her hair pulled by federal agents. Id. at 165.

Federal agents offered E.O., Jr. the opportunity to go to another facility, but he refused to

leave his sister alone. Id. ¶ 166. E.O., Jr. and K.O. were both taken to another facility. Id.

¶ 167. Federal agents told E.O., Jr. that his mother had been deported. Id. The siblings were

placed on an airplane, were not seated together, and were flown to Michigan. Id. ¶ 168. E.O., Jr.

and K.O. were sent to separate locations and federal personnel falsely told E.O., Jr. that they

were being separated only temporarily. Id.

K.O. was placed with a foster family, along with other children who had been separated

from their parents at the border. Id. ¶ 169. E.O., Jr. was placed in a facility with other boys. Id.

¶ 170. He attended school and was able to see K.O. there. Id. After a few days, E.O., Jr. was

able to speak on the phone for the first time with his father, identified as E.O., who lived in

Westborough, Massachusetts. Id. ¶ 172; see also id. ¶ 154. E.O., Jr. and K.O. were released and

reunited with their father on June 19, 2018. Id. ¶ 174.

L.J. was kept for eight days in the facility where she was placed after losing her children.

Id. ¶ 175. She spoke on the phone with a person she believes to have been an asylum officer, but

7 was not allowed to call her husband, E.O. Id. She was then taken to another location, which she

believes was an immigration detention facility in Taylor, Texas. Id. In mid-June 2018 she was

told that she had established a credible fear that she would be persecuted if forced to return to

Guatemala. Id. ¶ 176. She was released on June 26, 2018 and reunited with her family in

Massachusetts. Id. ¶ 177. All four family members still suffer from trauma caused by the

separation of the family, particularly K.O. See id. ¶¶ 178–79.

The third named plaintiff is identified as C.J. Id. ¶ 181. C.J. entered the United States on

June 17, 2018 in El Paso, Texas, seeking asylum along with his father, identified as F.C. Id. C.J.

was eleven years old. Id. They were seeking asylum based on threats from organized crime

working with the police in Guatemala. Id. They approached a CBP vehicle together and were

handcuffed and driven to a border patrol detention center. Id. ¶ 182. The facility was very cold

and C.J. and F.C. were not given enough food. Id. ¶¶ 184–85.

F.C. was informed that he would soon be separated from his son. Id. ¶ 183. On June 20,

2018 CBP agents woke F.C. and C.J. and took them to a processing area. Id. ¶ 186. F.C. was

separated from his son and taken to what he believes was a criminal court. Id. F.C. was not

returned to the facility where C.J. was, and did not see him for over a month. Id. ¶¶ 187–88.

C.J. was held in a facility with other children separated from their parents. Id. ¶ 196. He was

very sad and came to believe he would never see his father again. Id. ¶ 198.

F.C. was taken to a criminal detention facility in which non-immigrants were being held.

Id. ¶ 188. From there, he was taken to criminal court and told that he was being prosecuted for

illegal entry. Id. ¶ 191. He was given the choice of leaving C.J. in the United States or being

deported with C.J., and indicated that he wanted to remain with C.J. under any circumstances.

Id. He was then moved to another criminal facility for two weeks, then to additional

8 immigration detention facilities. Id. ¶ 192. Eventually an employee at a detention center

allowed him to speak with C.J. on the phone for five minutes. Id. ¶¶ 192–93. C.J. cried through

the conversation. Id. ¶ 193. At some point thereafter F.C. was turned over to ICE custody. Id.

¶ 195.

The government reunited C.J. and F.C. on July 26, 2018 at an immigration facility in Port

Isabel, Texas. Id. ¶ 199. C.J. remains traumatized from the experience of being forcibly

separated from his father. Id. ¶¶ 199–202. F.C. also suffered “life altering” trauma and it “will

continue to affect [C.J. and F.C.’s] mental and emotional well-being for years to come.” Id.

¶ 202.

2. Defendants’ Alleged Policies

Defendants in this case are eleven named individuals and an unknown number of non-

identified ICE Agents, CBP Agents and ORR personnel. See id. at 1. All Defendants are sued in

their individual capacities. Id. ¶¶ 17–30. Named Defendants are the following: former Attorney

General Jeff Sessions, former DHS Secretary Kirstjen Nielsen, former White House Chief of Staff

John Kelly, Senior Advisor to the President Stephen Miller, Counsel to the Attorney General Gene

Hamilton, former Director of ICE Thomas Homan, former Acting Director of ICE and former

Acting Deputy Commissioner of CBP Ronald D. Vitiello, former USCIS Director L. Francis

Cissna, former Acting DHS Secretary and former Commissioner of CBP Kevin McAleenan, HHS

Secretary Alex Azar, and former ORR Director Scott Lloyd. Id. All defendants are alleged to

have acted under color of federal law within the scope of their duties. Id. ¶ 31.

According to Plaintiffs, the Defendants in 2017 instituted a widespread practice of

separating migrant children from their parents by criminally prosecuting the parents for illegal

entry, or at least referring them for prosecution. Id. ¶ 48. Criminally charging the parents would

9 mean transferring them to federal criminal custody, away from their children. Id. ¶ 49. Children

were kept in “makeshift detention centers . . . in areas with no beds or mattresses,” and some

were abused by detention center employees. Id. ¶ 70. Health care is alleged to have been “often

grossly inadequate.” Id. ¶ 71. According to Plaintiffs, “[t]hese conditions of confinement further

traumatized the children separated from their parents and traumatized the parents who were

separated from their children.” Id. ¶ 72. Government officials are also alleged to have lied to

parents and children about why they were being separated or for how long. Id. ¶¶ 65–67.

The children, who were no longer “accompanied” by their parents, would then be

designated as UACs and transferred to ORR custody. Id. ¶ 51. Separated children were “not

afforded counsel, process, or notice of their parents’ whereabouts.” Id. Classifying children as

UACs delayed the reunification process because it meant parents had to apply as potential

“sponsors” for their own children in order to get them out of ORR custody. Id. ¶ 75.

According to Plaintiffs, the indefinite separation of children and parents was intended “to

demonstrate the agony that parents should expect to experience [should] they dare to enter the

United States without authorization with their children.” Id. ¶ 54; see also id. ¶ 79 (“The express

purpose of the family separation was to deter immigration to the United States by instilling fear

in migrants, particularly those from South and Central American countries.”). Plaintiffs suggest

that these separations were made based on migrants’ race or national origin. Id. ¶ 79. They

further allege that “[t]he forced separation of families continued well into 2018 and took place

without a hearing or any process whatsoever, regardless of the family's circumstances or the

needs of the children” and that it “occurred regardless of where or how the family entered,

whether they sought asylum, whether they were charged with unlawful entry or whether a family

member had passed a credible fear interview.” Id. ¶ 59.

10 According to Plaintiffs, Attorney General Sessions announced a “‘zero-tolerance policy’

for illegal entry into the United States in violation of 8 U.S.C. § 1325(a) as pretext for . . . family

separations,” when, in fact, Defendants had been separating children and parents before this

policy was announced. Id. ¶ 79. Then-ICE Director Homan, then-USCIS Director Cissna, and

then-CBP Commissioner McAleenan urged then-DHS Secretary Nielsen to detain and refer for

prosecution all parents arriving in the United States with children who had violated the statute.

Id. ¶ 80. Officials including Secretary Nielsen and President Trump denied that there was a

policy of family separation, distinguishing such a policy from the “zero-tolerance policy.” See

id. ¶¶ 82–87. Defendants’ Complaints allege in detail a variety of statements by Defendants and

others in the Executive Branch, including the President, that they say demonstrate animus based

on race and national origin, and which they say reveal the aim of deterrence that motivated the

family separation policy. Id. ¶¶ 91–112.

3. Class Allegations

Plaintiffs claim that the experiences endured by K.O., E.O., Jr., and C.J. are typical of the

experiences suffered by putative class members. Am. Compl. ¶¶ 180, 203, 209. They seek to

represent a class defined as:

[A]ll minor children nationwide who: enter or have entered the United States at or between designated ports of entry; have been or will be separated from a parent or parents by DHS or its sub-agencies (CBP, ICE, or USCIS); and detained in ORR custody, ORR foster care, or CBP or ICE custody without a demonstration in a hearing that the parent is unfit or presents a danger to the child.

Id. ¶ 205. Based on discovery taken in another pending case, they allege that the class could

number in the thousands, and that they are ascertainable through government records. Id.

¶¶ 206–07. They further allege that common questions of law or fact relating to Defendants’

alleged separation of class members from their parents make the case appropriate for class

treatment under Federal Rule of Civil Procedure 23(b)(3). Id. ¶ 208. Plaintiffs further allege a

11 series of facts based on media reports and reports drafted by child development and psychology

experts to establish the nature and extent of the trauma that children who are detained and

separated from their parents in these sorts of circumstance are likely to experience. See id.

¶ 113–129.

C. Procedural History

Plaintiffs filed their Complaint in the District of Massachusetts on September 5, 2018.

Compl., ECF No. 1. It asserted eight counts against the individual defendants, all of which

remain in the First Amended Complaint. Compare id. ¶¶ 199–276, with Am. Coml. ¶¶ 215–303.

Defendants moved to dismiss, ECF No. 38, and Plaintiffs thereafter amended their complaint,

rendering that motion moot. See ECF No. 50 (electronic order denying as moot the motion to

dismiss). The First Amended Complaint added one new Count, bringing the total to nine against

the individual Defendants: violation of the Fourth Amendment protection against unlawful and

unreasonable seizure (Count I—newly added in the First Amended Complaint), violation of

substantive due process rights to family integrity (Count II), violation of procedural due process

(Count III), violation of the Fifth Amendment guarantee of equal protection (Count IV),

violation of substantive due process rights relating to the punishment of civil detainees (Count

V), violation of the Due Process Clause of the Fifth Amendment in connection with coerced

waiver of asylum and other immigration claims (Count VI), violation of substantive due process

rights in connection with the failure to provide adequate mental health services (Count VII),

conspiracy to interfere with civil rights in violation of 42 U.S.C. § 1985(3) (Count VIII), and

refusal or neglect to prevent or aide in preventing conspiracy to interfere with civil rights in

violation of 42 U.S.C. § 1986 (Count IX).

12 The Individual Defendants then filed the instant Motion to Dismiss. ECF No. 51. Their

memorandum supporting the motion argued for dismissal for lack of personal jurisdiction and for

improper venue, as well as for failure to state a claim. Mem. of P. & A. in Supp. of Defs.’ Mot.

to Dismiss. (“Mot. Dismiss Mem.”), ECF No. 52. Before Judge Hillman ruled on the Motion to

Dismiss, Plaintiffs filed the still-pending Motion for Leave to File a Second Amended

Complaint. Mot. Amend. The proposed Second Amended Complaint would add the United

States as a party and would allege eight tort claims against the United States. Prop. Compl.

¶¶ 305–45; see also id. ¶ 10. Then, having realized that the Motion to amend was in violation of

a District of Massachusetts local rule, the Plaintiffs filed a Motion for Leave from Compliance

with the Service Requirements in Local Rule 15.1. ECF No. 66.

In February of this year, Judge Hillman issued a Memorandum Opinion granting the

Motion to Dismiss on the grounds that the District of Massachusetts lacked personal jurisdiction

over the Defendants and that venue was improper in that District. Mem. at 14. Judge Hillman

did not address the arguments for dismissal based on failure to state a claim. See Mem. He

denied the Motion for Jurisdictional Discovery and the Motion to Strike the Defendants’ Reply

Brief, and explicitly declined to rule on the Motion for Leave to Amend, leaving it for this Court.

Id. at 14 & n. 9. Finally, Judge Hillman transferred the case to this Court pursuant to 28

U.S.C. § 1631, which allows a court lacking jurisdiction over an action to transfer that action to a

court where it could have been brought “if it is in the interest of justice” to do so. Id. at 14

(citing 28 U.S.C. § 1631).

When the case arrived before this Court, the individual Defendants filed a Notice of

Related Case, ECF No. 90, suggesting that this case might be transferred to the Judge overseeing

13 that one. Plaintiffs have filed objections to the Notice of Related Case. Pls.’ Obj. to Defs.’

Defs.’ Notice of Rel. Case, ECF No. 92. 1

The Court held a status conference, during which it was agreed that the parties would file

supplemental briefing. The Court has received that supplemental briefing, from the Plaintiffs,

the individual Defendants, and the United States, which address the Motion for Leave to Amend,

the arguments that the Complaint should be dismissed for failure to state a claim, and the related

case issue. See Supp. to the U.S.’s Opp’n to Pls.’ Mot. for Leave to file a Second Am. Compl.

(“U.S. Supp.”), ECF No. 106; Supp. Br. in Supp. of the Individual Defs.’ Mot. to Dismiss and

Opp’n to Mot. for Leave to Amend (“Defs.’ Supp.”), ECF No. 107; Pls.’ Supp. Br. (“Pls.’

Supp.”), ECF No. 108. The Court has also received responsive briefing from all three groups.

See Resp. to Pls.’ Supp. Mem. (“Defs.’ Resp.”), ECF No. 109; Pls.’ Resp. to Supp. Brs. (“Pls.’

Resp.”), ECF No. 110; Resp. to Pls.’ Supp. to Mot. for Leave to File a Second Am. Compl.

(“U.S. Resp.”), ECF No. 111. The Court is now appraised of the parties’ respective positions on

all pending motions, and the motions are ripe for decision.

1 Upon review, the Court did not find the related case identified by Defendants to be sufficiently connected to this one to warrant transfer to a different judge of this Court. Civil cases are deemed related in this Court when they “involve common issues of fact” or “grow out of the same event or transaction,” among other alternatives not relevant here. LCvR 40.5(a)(3). If related cases are noted after both cases have been assigned, it is up to the discretion of the judge with the later-assigned case whether to transfer it to the judge with the earlier-assigned case. LCvR 40.5(c)(2) (“the judge having the later-numbered case may transfer” (emphasis added)); see also LCvR 40.5(c)(3) (“Where a party objects to a designation . . . the matter shall be determined by the judge to whom the case is assigned.”). The purportedly related case here, Ms. Q v. U.S. Immigration & Customs Enforcement, No. 18-2409 (D.D.C.), is quite different from the instant action. It is an individual action, not a class action like this case, and brings different kinds of claims against only a subset of the defendants being sued here. While it involves some common issues of fact, those facts concern nationwide government policies that could be shared between any number of cases. Further, Ms. Q is currently stayed, with a motion to dismiss as moot held in abeyance. See Mem. Op. and Order, Ms. Q, No. 18-2409 (D.D.C. Nov. 21, 2019), ECF No. 45. A transfer would therefore not benefit judicial economy in any meaningful way. Accordingly, the Court declines to transfer this case.

14 II. LEGAL FRAMEWORK

The Federal Rules of Civil Procedure require that a complaint contain “a short and plain

statement of the claim” in order to give the defendant fair notice of the claim and the grounds

upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007)

(per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's ultimate

likelihood of success on the merits, but rather tests whether a plaintiff has properly stated a claim

for which relief can be granted. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514–15 (2002).

It is not necessary for the plaintiff to plead all elements of her prima facie case in the complaint.

See id. at 511–14; Bryant v. Pepco, 730 F.Supp.2d 25, 28–29 (D.D.C. 2010).

Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). This means that a plaintiff's factual allegations “must be enough to raise a right to relief

above the speculative level, on the assumption that all the allegations in the complaint are true

(even if doubtful in fact).” Twombly, 550 U.S. at 555–56 (citations omitted); see also Harris v.

D.C. Water & Sewer Auth., 791 F.3d 65, 70 (D.C. Cir. 2015) (requiring that a Title VII plaintiff

allege “facts that, taken as true, render his claim of retaliation [or discrimination] plausible”).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements,” are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678.

A court need not accept a plaintiff's legal conclusions as true, see id., nor must a court presume

the veracity of the legal conclusions that are couched as factual allegations, see Twombly, 550

U.S. at 555. “In determining whether a complaint fails to state a claim, [the Court] may consider

only the facts alleged in the complaint, any documents either attached to or incorporated in the

15 complaint and matters of which [the Court] may take judicial notice.” EEOC v. St. Francis

Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).

Federal Rule of Civil Procedure 15(a) permits a plaintiff to amend a complaint once as a

matter of course within 21 days of serving it or within 21 days of the filing of a responsive

pleading. See Fed. R. Civ. P. 15(a)(1). Otherwise, a plaintiff may amend a pleading only with

the opposing party’s written consent—which has been denied in this case—or by the Court’s

leave. Fed. R. Civ. P. 15(a)(2). Rule 15 instructs courts to “freely give leave when justice so

requires.” Id.; see also Belizan v. Hershon, 434 F.3d 579, 582 (D.C. Cir. 2006) (explaining that

Rule 15 “is to be construed liberally”). Importantly, “[t]he decision to grant or deny leave to

amend . . . is vested in the sound discretion of the trial court.” Commodore–Mensah v. Delta Air

Lines, Inc., 842 F. Supp. 2d 50, 52 (D.D.C. 2012) (citing Doe v. McMillan, 566 F.2d 713, 720

(D.C. Cir. 1977)). Generous standard notwithstanding, courts may deny leave to amend for such

reasons as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure

to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party

by virtue of allowance of the amendment, [or] futility of amendment.” Foman v. Davis, 371 U.S.

178, 182 (1962). “Amendments that do not radically alter the scope and nature of the action . . .

are especially favored.” United States ex rel. Westrick v. Second Chance Body Armor, Inc., 301

F.R.D. 5, 8 (D.D.C. 2013) (quoting Estate of Gaither ex rel. Gaither v. District of Columbia, 272

F.R.D. 248, 252 (D.D.C. 2011)). “Courts may deny a motion to amend a complaint as futile . . .

if the proposed claim would not survive a motion to dismiss.” James Madison Ltd., 82 F.3d at

1099 (citing Foman, 371 U.S. at 181–82). Accordingly, in determining the futility of

amendment, the Court applies the same standard it applies in resolving a motion to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6). Id.

16 III. ANALYSIS

A. Motion to Dismiss

Plaintiffs argue that the individual Defendants’ arguments in favor of dismissal for failure

to state a claim are no longer ripe for decision because Judge Hillman already ruled on that

motion. Pls.’ Supp. at 13. This is contrary to the parties’ agreement with the Court in their

teleconference that the remaining arguments on the Motion would be addressed in the parties

supplemental briefing. The Court suspects Plaintiffs did not forget this, as they devoted two

dozen pages to the merits of these arguments in their supplemental briefing. See id. at 14–37.

The issues have been fully briefed—in two different courts now—and will be resolved here in

the interest of efficiency. See Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016) (“[D]istrict courts

have the inherent authority to manage their dockets and courtrooms with a view toward the

efficient and expedient resolution of cases.”).

1. Bivens Claims

Plaintiffs’ claims against the individual defendants are the type of claims for damages

against federal agents and officials acting under color of federal authority that the Supreme Court

first authorized under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403

U.S. 388 (1971). In Bivens, the Supreme Court held that federal agents acting under color of

federal authority who commit an unconstitutional search or seizure could be held liable as

individuals for money damages. Bivens, 403 U.S. at 397. In Davis v. Passman, 442 U.S. 228

(1979), and Carlson v. Green, 446 U.S. 14 (1980), the Supreme Court extended the Bivens cause

of action to allow for damage claims under the Fifth and Eighth Amendments. Carlson, 446

U.S. at 20 (allowing a federal prisoner to bring an Eighth Amendment claim for failure to

provide adequate medical treatment); Davis, 442 U.S. at 230 (allowing a former congressional

staffer to bring a Fifth Amendment claim for dismissal based on sex). Since then, the Court has

17 declined to extend Bivens and to find new implied damages remedies ten times, including earlier

this year in Hernandez v. Mesa, 140 S. Ct. 735, 747 (2020), and in the 2017 case Ziglar v.

Abbasi, 137 S. Ct. 1843, 1863 (2017). See also Abassi, 137 S. Ct. at 1857 (collecting the eight

additional cases).

A court faced with a claim that would extend Bivens and to recognize new implied

constitutional cause of actions must undertake “a two-step inquiry.” Hernandez, 140 S. Ct. at

743. First, the court must “inquire whether the request involves a claim that arises in a ‘new

context’ or involves a ‘new category of defendants’” from those in any of the three Supreme

Court decisions that did recognize Bivens actions. Id. (quoting Correctional Servs. Corp. v.

Malesko, 534 U.S. 61, 68 (2001)). Importantly, “[a] claim may arise in a new context even if it

is based on the same constitutional provision as a claim in a case in which a damages remedy

was previously recognized.” Id. If the claim would extend Bivens to a new context, the court

must then “ask whether there are any ‘special factors that counsel hesitation’ about granting the

extension.” Id. (quoting Abassi, 137 S. Ct. at 1857 (internal quotations and alterations omitted)).

This involves evaluating “whether the Judiciary is well suited, absent congressional action or

instruction, to consider and weigh the costs and benefits of allowing a damages action to

proceed.” Abassi, 137 S. Ct. at 1857–58. When one or more “special factor[s]” have provided

“reason to pause before applying Bivens in a new context or to a new class of defendants,” the

Supreme Court has “reject[ed] the request.” Hernandez, 140 S. Ct. at 743. Finally, “if there is

an alternative remedial structure present in a certain case, that alone may limit the power of the

Judiciary to infer a new Bivens cause of action.” Abassi, 137 S. Ct. at 1858; see also Hernandez,

140 S. Ct. at 750 (“Congress’s decision not to provide a judicial remedy does not compel [the

courts] to step into its shoes.” (emphasis added)).

18 The D.C. Circuit has not addressed a Bivens claim since Hernandez v. Mesa, but has

issued two precedential opinions postdating Ziglar v. Abbasi in which it declined an opportunity

to extend Bivens. Loumiet v. United States, 948 F.3d 376 (D.C. Cir. 2020); Liff v. Office of the

Inspector Gen. for U.S. Dep’t of Labor, 881 F.3d 912 (D.C. Cir. 2018). In Liff v. Office of the

Inspector General for U.S. Department of Labor, a government contractor claimed that

Department of Labor officials had violated his Fifth Amendment rights to Due Process by

issuing erroneous reports about him and his business. Liff, 881 F.3d at 914–15. No Bivens

remedy was available in this new context because Congress had provided a number of alternative

remedies available for disputes between the government and its contractors. Id. at 915. More

recently, in Loumiet v. United States, a lawyer claimed that the Office of Comptroller of

Currency had carried out a retaliatory prosecution against him in violation of his First

Amendment rights. 2 Loumiet, 948 F.3d at 378–79. This was “clearly . . . a new Bivens context,”

and the Circuit saw special factors, including again the availability of alternative remedies. Id. at

382–83; see id. at 384 (discussing provisions in the Financial Institutions Reform, Recovery, and

Enforcement Act that would have allowed the Plaintiff “meaningful remedies” (quoting Bush v.

Lucas, 462 U.S. 367, 368 (1983))).

The first seven claims brought by Plaintiffs in their Amended Complaint are potential

Bivens claims, each based in the Fourth or Fifth Amendment. Plaintiffs seem to concede that

some of these present new Bivens contexts, but argue that “[a]t least three” do not: “the Fourth

Amendment claim for unreasonable seizure; the Fifth Amendment claim for violation of the

equal protection guarantee; and the Fifth Amendment substantive due process claim based on the

2 He had also brought Fifth Amendment Bivens claims but these were not before the Circuit on appeal after Abbasi. See Loumiet, 948 F.3d at 379.

19 right to adequate health care.” Pls.’ Mem. of Law in Opp’n to Defs.’ Mot. Dismiss (“Opp’n”) at

27, ECF No. 56; see also Pls.’ Supp. at 14 (same). The Court disagrees and thinks all seven

present new contexts. “A claim may arise in a new context even if it is based on the same

constitutional provision as a claim in a case in which a damages remedy was previously

recognized,” as these three claims are. Hernandez, 140 S. Ct. at 743.

It is unclear what cases Plaintiffs think could have established a Bivens action in this

context, other than the original trilogy of Bivens, Davis, and Carlson. They cite two out-of-

Circuit cases, and one from this Court that allowed the amendment of a complaint in order to

properly frame a Bivens claim, but which said nothing about whether such a claim would

actually be viable. Pls.’ Supp. at 14–15 (citing Doe v. Sessions, No. 18-cv-4, 2018 WL 6540554,

at *2 (D.D.C. Dec. 12, 2018)). Neither Bivens, Davis, nor Carlson dealt with the rights of

noncitizens in immigration detention. In Hernandez v. Mesa, the Supreme Court found that the

case presented a new context with only a fairly brief analysis, observing that it was “glaringly

obvious” the cross-border shooting of a Mexican teenager by a Border Patrol agent involved a

“new” and “meaningfully different” context from an unlawful arrest and search in New York

City (Bivens) or sex discrimination on Capitol Hill (Davis). Hernandez, 140 S. Ct. at 743–44.

Carlson arguably is somewhat closer to Count VII in this case, as it concerned medical treatment

for a person in federal custody, but immigration detention is a different context from the federal

prison system. None of the three established contexts for Bivens claims address the rights of

noncitizens, or of minors. Whether this case presents a new context is not a close call. To find

otherwise would be to say that the Court need not even consider what special factors might

counsel hesitation—and that is clearly not the case. Accordingly, the Court proceeds to the next

step in the analysis.

20 A number of special factors counseling hesitation are present here. In another case

challenging the executive branch’s alleged family separation policy for undocumented

immigrants, Judge Friedman identified three such factors. Mejia-Mejia v. ICE, No. 18-cv-1445,

2019 WL 4707150, at *4–5 (D.D.C. Sept. 26, 2019). First, “Bivens suits are not the appropriate

mechanism to litigate objections to general government policies.” Id. at *4 (citing Correctional

Servs. Corp., 534 U.S. at 74). Recognized Bivens claims “have generally been made against

individuals . . . who have engaged in some personal misconduct in a direct and particularized

interaction with a plaintiff, not against individuals who have applied a general policy that

affected plaintiff and others in similar ways.” Id. A challenge to a coordinated policy organized

from the top of the Executive Branch across several departments is a different kind of lawsuit,

and not one that Bivens has been used for in the past. See id. at *4–5. In addition, this Court

shares Judge Friedman’s concerns that challenging Executive Branch policies through Bivens

actions could require discovery that “dampen[s] the candor of conversations and advice rendered

by officials within the executive branch.” Id. at *5; see also Abbasi, 137 S. Ct. at 1858 (“[T]he

decision to recognize a [Bivens] damages remedy requires an assessment of its impact on

governmental operations systemwide.”).

Plaintiffs dispute this characterization of their claims. They argue that the claims in

Mejia-Mejia challenged “broad immigration policy decisions” whereas theirs are focused on

individual conduct. Pls.’ Resp. at 7 (quoting Mejia-Mejia, 2019 WL 4707150, at *4). This

supposed distinction is unavailing. It is true that Judge Friedman, and not the Plaintiffs in Mejia-

Mejia, characterized the claims at issue as “propos[ing] that senior officials should be

individually liable for broad immigration policy decisions,” Mejia-Mejia, 2019 WL 4707150, at

*4, but the putative Bivens claims in that case were not substantively different from those here.

21 They were claims against Attorney General Sessions and ORR Director Lloyd—both Defendants

here— and other agency officials in their individual capacities for compensatory and punitive

damages. See id. at *2. The conduct challenged and the legal theory was the same. The

Plaintiffs here would reach even further into Executive Branch deliberations because they have

named a former White House Chief of Staff and a Senior Advisor to the President as Defendants.

The conversations and advice at issue here are closer to the office of the President and, even

without considering the substantive law regarding whether they would be privileged or

discoverable, they give the Court more reason to pause before allowing a Bivens action that

could reach them.

Plaintiffs also explain that their First Amended Complaint “clearly distinguishes between

the ‘zero tolerance policy’ for immigration prosecutions and the unnecessary and unlawful

forcible separation of children from their families.” Pls.’ Supp. at 19 (citing Am. Compl. ¶ 82).

The Court does not see what difference this makes when it comes to the concern that allowing a

Bivens action would require sensitive discovery relating to executive branch policymaking.

Considering the class nature of the claims and the high ranks of the officials being sued, the

Court does not see how prosecution of these claims could avoid looking into policymaking at the

highest levels—indeed that kind of policymaking is what the Amended Complaint describes.

Another special factor identified by Judge Friedman in Mejia-Mejia is also relevant here.

As in Mejia-Mejia, this suit “challenges powers that are already subject to extensive

Congressional action” through the immigration code, and concerns the exercise of prosecutorial

discretion by the Attorney General. Mejia-Mejia, 2019 WL 4707150, at *5 (citing Fiallo v. Bell,

430 U.S. 787, 792 (1977) (noting Congress’s extensive power over immigration)). The Supreme

Court later made a related point in Hernandez, observing in the analogous context of

22 extraterritorial claims brought by foreign nationals that “Congress . . . has authority in the field”

but has “le[ft] the resolution of [such] claims brought by foreign nationals to executive branch

officials and the diplomatic process.” Hernandez, 140 S. Ct. at 740–50. Here, too, the Court

sees “reason to pause” before creating a Constitutional cause of action for claims about the ways

in which the Executive Branch operated within a statutory framework set by Congress. Plaintiffs

argue that there has been no “‘explicit congressional declaration’ that a damages remedy is

unavailable.” Pls.’ Supp. at 20 (quoting Bivens, 403 U.S. at 397). This argument

misunderstands the doctrine. An “explicit congressional declaration” of that sort would be an

independent ground for declining to extend Bivens, but is not necessary for the “special factors”

analysis to prevent extension for other reasons. See Spagnola v. Mathis, 859 F.2d 223, 229 n.10

(D.C. Cir. 1988) (noting that the lack of an “explicit congressional declaration” “has little

relevance to the “special factors” exception”).

Two additional special factors carry somewhat less weight in the Court’s decision not to

extend Bivens, but bear mentioning nonetheless. First, as the Supreme Court discussed in

Hernandez v. Mesa, the Executive Branch’s “attempt[s] to control the movement of people and

goods across the border” between the United States and Mexico “implicate[] an element of

national security.” Hernandez, 140 S. Ct. at 746. Hernandez v. Mesa, which concerned an agent

standing at the physical border with a firearm, implicates national security more directly than this

case. Still, the movement of people across the border always contains at least an element of

national security even when, as here, many of the people at issue are children.

Finally, alternative methods of relief appear to be available to the plaintiffs. In Mejia-

Mejia, Judge Friedman noted two class actions in the Southern District of California. Mejia-

Mejia, 2019 WL 4707150, at *5 (citing Ms. L. v. U.S. Immigrations and Customs Enf’t, No. 18-

23 cv-0428, (S.D. Cal.); M.M.M. ex rel. his minor child, J.M.A. v. Barr, No. 18-cv-1832 (S.D.

Cal.)). One of these is an ongoing putative class action being litigated by the American Civil

Liberties Union on behalf of a class of adult parents who were separated from their children. See

Third Am. Compl, Ms. L., No. 18-cv-0428 (Oct. 9, 2018), ECF No. 250. Here, the proposed

class is made up of the separated children, not their parents, but Ms. L. nonetheless suggests that

claims under the Administrative Procedure Act or under the Asylum and Withholding of

Removal Statutes or the Convention against Torture might be possibilities. See id. ¶¶ 98–107.

The other case, M.M.M., has settled, and includes a class of children. See Order Certifying the

Settlement Classes and Granting Final Approval of Class Action Settlement, M.M.M., No. 18-cv-

1832 (Nov. 15, 2018), ECF No. 99. While there are undoubtedly differences between those

actions and this one, the Court does not need to compare in detail the respective pleadings. An

alternative method of relief that cautions against extending Bivens need not be an alternative

means of bringing exactly the same claim. See Wilson v. Libby, 535 F.3d 697, 709 (D.C. Cir.

2008) (“The special factors analysis does not turn on whether the statute provides a remedy to

the particular plaintiff for the particular claim he or she wishes to pursue.”). Even if there were

no alternative remedy, 3 the other factors discussed above would give the Court sufficient reason

to pause before extending Bivens to the claims presented here.

In sum, two special factors primarily give the Court “reason to pause” in this case: first,

the fact that Bivens is not properly used as a means of challenging general government policies,

and second, the fact that Congress has legislated extensively in this area without providing of this

3 The Plaintiffs’ proposed tort claims against the United States, which they seek to amend their complaint in order to add, are not an alternative of the sort that qualifies as a special factor in the Bivens analysis. A plaintiff may pursue Bivens claims against officials in their individual capacities alongside FTCA claims against the United States for common law tort violations. Loumiet v. United States, 828 F.3d 935, 945 (D.C. Cir. 2016).

24 kind of suit. Additionally, the fact that national security concerns are likely implicated and that

alternatives forms of relief appear to be available give the Court further pause. For these

reasons, the Court declines to extend Bivens into this new context, and will grant the motion to

dismiss as to Counts I through VII.

2. Statutory Claims

Two claims in Plaintiffs’ First Amended Complaint do not rely on Bivens, but are instead

statutory: Count VIII, which alleges a conspiracy to interfere with civil rights in violation of 42

U.S.C. § 1985(3) and Count IX, which alleges refusal or neglect to provide or aide in preventing

a conspiracy to interfere with civil rights in violation of 42 U.S.C. § 1986. Am. Compl. ¶¶ 286–

303. To state a claim under Section 1985(3), a plaintiff must allege “(1) a conspiracy; (2) for the

purpose of depriving, either directly or indirectly, any person or class of persons of the equal

protection of laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either

injured in his person or property or deprived of any right or privilege of a citizen of the United

States.” Wilson v. DNC Servs. Corp., 315 F. Supp. 3d 392, 400–01 (D.D.C. 2018) (quoting Pope

v. Bond, 641 F. Supp. 489, 498 (D.D.C. 1986)). “[Section] 1986 imposes liability upon a person

who ‘neglects or refuses’ to prevent a wrong under § 1985.” Jackson v. Donovan, 856 F. Supp.

2d 147, 150 (D.D.C. 2012). This means that “a colorable claim under § 1985 is a prerequisite to

a claim under § 1986.” Leonard v. George Wash. Univ. Hosp., 273 F. Supp. 3d 247, 256

(D.D.C. 2017) (quoting Philogene v. District of Columbia, 864 F. Supp. 2d 127, 132 (D.D.C.

2012)).

25 The individual Defendants argue that they are entitled to qualified immunity on these

statutory claims. 4 Mot. Dismiss Mem. at 40–42; Defs.’ Supp. at 14–15. “Qualified immunity

shields federal and state officials from money damages unless a plaintiff pleads facts showing (1)

that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly

established’ at the time of the challenged conduct.” Ashcroft v. al–Kidd, 563 U.S. 731, 735

(2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). For a right to be “clearly

established,” at the time of the officer's conduct, “existing law must have placed the

constitutionality of the officer’s conduct ‘beyond debate.’” District of Columbia v. Wesby, 138

S. Ct. 577, 589 (2018) (quoting Ashcroft, 563 U.S. at 741). The legal principle to be applied

must be “dictated by ‘controlling authority’ or ‘a robust consensus of cases of persuasive

authority,’” that “clearly prohibit the officer's conduct in the particular circumstances before

him.” Id. at 589–90 (quoting Ashcroft, 563 U.S. at 741–42). Qualified immunity is properly

evaluated at the motion to dismiss stage. Pearson v. Callahan, 555 U.S. 223, 231 (2009). A

defendant bears the burden of pleading and proving the defense. Harlow, 457 U.S. at 815.

Trial courts have discretion to decide which prong of the qualified immunity analysis to

address first. Pearson, 555 U.S. at 236; see Rasul v. Myers, 563 F.3d 527, 530 (D.C. Cir. 2009)

(noting that “lower federal courts have the discretion to decide only the more narrow ‘clearly

established’ issue ‘in light of the circumstances of the particular case at hand.’” (quoting

Pearson, 555 U.S. at 236)). On the “clearly established” prong, “[t]he dispositive question is

‘whether the violative nature of particular conduct is clearly established.’’’ Abassi, 137 S. Ct. at

1866 (quoting Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (per curiam) (internal quotation

4 The individual Defendants argue that they are entitled to qualified immunity on all nine claims, but the Court need not address whether they would be entitled to qualified immunity for the Bivens claims because those fail to state a claim for other reasons.

26 marks omitted)); see also id. at 1867 (“[Q]ualified immunity protects ‘all but the plainly

incompetent or those who knowingly violate the law.’” (quoting Malley v. Briggs, 475 U.S. 335,

341 (1986))). As a defense to claims under § 1985(3), qualified immunity is available not only

when officers reasonably might not have known that the actions they allegedly conspired to take

were unlawful but also when officers reasonably might not have known that their planning could

be labeled a conspiracy under the statute. Abassi, 137 S. Ct. at 1867 (granting qualified

immunity to defendants because “potential liability for this statutory offense would not have

been known or anticipated by reasonable officials in their position”).

Following Abassi, Defendants argue that one reason why Plaintiffs’ two statutory claims

fail is that it is not clearly established that § 1985(3) can “even appl[y] to federal actors who are

formulating general policy.” Mot. Dismiss Mem. at 64. Under the “intracorporate-conspiracy

doctrine,” “there is no unlawful conspiracy when officers within a single corporate entity consult

among themselves and then adopt a policy for the entity.” Abassi, 137 S. Ct. at 1867 (citing

Coppwerweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 769–71 (1984)); see also id.

(“Conspiracy requires an agreement . . . between or among two or more separate persons. When

two agents of the same legal entity make an agreement in the course of their official duties,

however, as a practical and legal matter, their acts are attributed to their principal.”). The

Supreme Court in Abassi observed a longstanding dispute among the lower courts regarding the

applicability of the intracorporate-conspiracy doctrine to alleged conspiracies to violate civil

rights in violation of § 1985. Id. at 1868 (citing discussion of the dispute in Bowie v. Maddox,

642 F.3d 1122, 1130–31 (D.C. Cir. 2011)); see also Apollo v. Bank of Am., N.A., 315 F. Supp. 3d

436, 439 (D.D.C. 2018) (indicating the question remained thirteen months after Abassi). The

Court in Abassi held that the defendant officials sued under § 1985 were entitled to qualified

27 immunity because the division among the courts concerning the intracorporate-conspiracy

doctrine “demonstrates that the law on the point is not well established” and that therefore “a

reasonable official lacks the notice required before imposing liability.” Abassi, 137 S. Ct. at

1868.

Plaintiffs attempt to distinguish Abassi by arguing that the defendants there “all worked

for the same Department of the Executive Branch” while “many of the Defendants here worked

in different Departments.” Pls.’ Supp. at 34; see also Opp’n at 60–61. Intracorporate-conspiracy

doctrine should not apply, Plaintiffs argue, “[b]ecause the [D]efendants alleged to have

conspired . . . are from distinct entities, performing distinct functions and making independent

decisions.” Pls.’ Supp. at 34. While this does identify a factual distinction from Abassi, the

Court does not think it makes any difference given Abassi’s reasoning. In Abassi, without

reaching a holding one way or the other, the Supreme Court explained that “conversations and

agreements between and among federal officials in the same Department should not be the

subject of a private cause of action for damages under § 1985(3).” Abassi, 137 S. Ct. at 1868.

But “open discussion among federal officers is to be encouraged,” id., as much across

departments as much as within them. It is especially the case where, as here, conversations

among White House officials and heads of departments are at issue. For example, if there is

good reason for the Attorney General to be able to count on frank and open conversations with

the heads of various Department of Justice divisions, then there is at least equally good reason

for the Attorney General to be able to have the same kinds of conversations with White House

officials.

Moreover, at least one court in this district, and numerous district courts around the

country, have applied the intracorporate conspiracy doctrine to different entities within state and

28 local governments. See Kelley v. District of Columbia, 893 F. Supp. 2d 115, 117 (D.D.C. 2012)

(applying intracorporate conspiracy doctrine to an alleged conspiracy involving the D.C. Chief of

Police and the former D.C. Attorney General); see also, e.g., Guichard v. Town of Brookhaven,

26 F. Supp. 3d 219, 227–28 (E.D.N.Y. 2014) (same for an alleged conspiracy involving a town,

its waste management department, and employees of each); Dunlop v. City of New York, No. 06-

cv-0433 (RJS), 2008 WL 1970002, at *9 (S.D.N.Y. May 6, 2008) (same for an alleged

conspiracy involving the New York City mayor, police commissioner, New York County

District Attorney, and various other officials). It is irrelevant whether the Court would follow

these cases—which have no precedential weight here—because it is enough for defendants to

show that the law is not clearly established in Plaintiffs’ favor.

Another good reason to think the intracorporate-conspiracy doctrine might apply here is

that Plaintiffs recognize that every Defendant—from the Chief of Staff down to the unnamed

agents—acted within the scope of his or her employment. See Am. Compl. ¶ 31 (“At all relevant

times, the Defendants have acted under color of federal law in the course and scope of their

duties and functions as agents, employees, and officers of the United States in engaging in the

conduct described in this Amended Complaint.”). The intracorporate-conspiracy doctrine

protects only employees acting within the scope of their employment. Mehari v. District of

Columbia, 268 F. Supp. 3d 73, 80 (D.D.C. 2017); see Abassi, 137 S. Ct. at 1868 (“These

considerations suggest that officials employed by the same governmental department do not

conspire when they speak to one another and work together in their official capacities.”

(emphasis added)). The Defendants here have official duties that require them to speak and work

with other officials outside their own departments. The non-identified ICE Agents and CBP

Agents—all organized under the Department of Homeland Security—must communicate and

29 coordinate with the non-identified ORR officials from HHS in order to process and care for

UACs. White House officials and heads of agencies must do the same with heads of various

departments. If the intracorporate-conspiracy doctrine can apply to civil rights claims—and

Abassi states that it might be able to—there is little reason to think its reach would stop at cross-

department communications within the scope of federal officers’ official duties. As Plaintiffs

acknowledged, these officials acted under color of federal law as “agents, employees, and

officers of the United States,” not on behalf of their individual agencies.

None of this is to say that the intracorporate-conspiracy doctrine necessarily applies to

conversations and planning that takes place across executive departments, but only that the

question is sufficiently open that the issue is not “beyond debate.” Ashcroft, 563 U.S. at 741.

While Plaintiffs have attempted to distinguish the cases cited by Defendants—including Abassi

and the state and local government cases—they present no cases to establish affirmatively that

liability for Defendants’ alleged conduct is clearly established. See Pls.’ Resp. at 13–14. Simply

distinguishing Defendants’ cases, even if done effectively, would not carry the Plaintiffs’ burden.

The legal conclusions necessary to find in Plaintiffs’ favor “cannot be clearly established” and

thus Defendants “would not have known with any certainty that the alleged agreements were

forbidden by law.” Abassi, 137 S. Ct. at 1869. The individual defendants are therefore entitled

to qualified immunity on the § 1985(3) claim, see id., and so the § 1986 claim necessarily fails

along with it, see Leonard, 273 F. Supp. 3d at 256.

30 B. Motion for Leave to File a Second Amended Complaint 5

“Courts may deny a motion to amend a complaint as futile . . . if the proposed claim

would not survive a motion to dismiss.” James Madison Ltd., 82 F.3d at 1099. Plaintiffs’

Second Amended Complaint makes identical Bivens and statutory conspiracy claims against the

individual Defendants. Amending these claims would be futile because the proposed

amendments change nothing about them and they would not survive a motion to dismiss for the

reasons explained above. This would leave only for this Court’s consideration the proposed tort

claims against the United States.

The United States argues that Plaintiffs should not be permitted to add these claims

because Plaintiffs never filed a proper administrative claim, U.S. Supp. at 5; see also U.S. Resp.

at 2 n.1, and that even if they did, they failed to exhaust their administrative remedies before

filing their initial complaint in this case. U.S. Supp. at 6. Plaintiffs’ first Complaint in this case

was filed on September 5, 2018. See ECF No. 1. By their own admission, Plaintiffs did not

present their administrative tort claims pursuant to the FTCA until October 9, 2018. See Mot.

Amend ¶ 2. The United States acknowledges that “the case law on [allowing amendment in

circumstances like these] is not uniform.” U.S. Resp. at 4. It points, however, to Schneider v.

Kissinger, 310 F. Supp. 2d 251 (D.D.C. 2004), in which amendment was not allowed under the

same circumstances presented here. Id. at 269–70; see id. at 270 (“Allowing claimants generally

5 While litigating in the District of Massachusetts, the Plaintiffs filed a Motion for Leave from Compliance with the Service Requirements in Local Rule 15.1, ECF No. 66, based on their apparent failure to comply with that local rule in the filing of their Motion for Leave to File a Second Amended Complaint. Judge Hillman did not rule on the Motion for Leave from Compliance, and it remains pending. In their supplemental briefing in this Court neither the United States nor the individual Defendants have mentioned this motion, except in passing. U.S. Supp. at 2 n.4. The motion will be neither granted nor denied. There is no need for the Court to grant leave from compliance with a local rule from a different district that has no bearing on this Court. The motion is therefore found to be moot in light of the transfer of the case to this Court.

31 to bring suit under the FTCA before exhausting their administrative remedies and to cure the

jurisdictional defect by filing an amended complaint would render the exhaustion requirement

meaningless and impose an unnecessary burden on the judicial system.” (quoting Duplan v.

Harper, 188 F.3d 1195, 1199 (10th Cir. 1999))). Plaintiffs point to no binding precedent to the

contrary, nor have they identified any decisions contrary to Schneider from this district. See Pls.’

Supp. at 11.

Under the circumstances, the Court sees no reason to allow amendment. Judicial

economy would be better served by the filing of a new action. Because the claims against the

individual Defendants fail to state a claim, there is nothing to be gained in terms of judicial

efficiency by litigating the claims against the United States in this action. The Schneider issue

derives from the fact that the initial complaint in this action was filed before administrative

remedies were exhausted pursuant to the FTCA. This would not be a problem in a new suit. The

issue of whether administrative remedies have ever been exhausted will remain, but Plaintiffs

now have the opportunity to address these issues before instituting a new case. Plaintiffs do not

argue that they will be prejudiced if amendment of their FTCA claims is not allowed. See id.

Their only judicial economy argument in favor of amendment is that discovery on the FTCA

claims will overlap substantially with discovery on the Bivens and conspiracy claims. Id. at 12.

But that will not be the case because those claims have failed. With nothing else remaining in

this case, there is no benefit to Plaintiffs to having their FTCA claims litigated under this case

number. To the contrary, keeping the cases separate may benefit Plaintiffs in that they will be

able to immediately appeal the dismissal of their Bivens claims now. But if the FTCA claims

were added to this case Plaintiffs would have to await resolution of the FTCA claims before

appealing the dismissal of the Bivens claims.

32 “The grant or denial of leave to amend is committed to a district court’s discretion” and

“futility of amendment” is a proper basis for the exercise of that discretion. Firestone v.

Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). Here the Court will deny leave to amend.

Amendment would be futile given the procedural hurdles that Plaintiffs have apparently failed to

clear, and in filing a new action Plaintiffs will have the opportunity to cure one or more

procedural defects.

IV. CONCLUSION

For the foregoing reasons, the individual Defendants’ Motion to Dismiss (ECF No. 51) is

GRANTED. Plaintiffs’ Motion for Leave to File a Second Amended Complaint (ECF No. 64)

is DENIED. Plaintiffs’ Motion for Leave from Compliance with the Service Requirements in

Local Rule 15.1 of the District of Massachusetts (ECF No. 66) is FOUND TO BE MOOT. An

order consistent with this memorandum opinion is separately and contemporaneously issued.

Dated: June 23, 2020 RUDOLPH CONTRERAS United States District Judge