A.R.M.R. v. USA

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
A.R.M.R., on her own behalf and on
behalf of her minor child, A.P.D.M.,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.
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Case No. 24-cv-2416-DWD
MEMORANDUM & ORDER
DUGAN, District Judge:
Plaintiff A.R.M.R. filed a complaint on behalf of herself and her minor child,
A.P.D.M., against the United States, seeking compensation under the Federal Tort Claims
Act (“FTCA”). Plaintiffs allege they suffered harm when United States Customs and
Border Protection (“CBP”) agents detained and expelled them from the Country under
the authority of an order promulgated by the Centers for Disease Control and Prevention
(“CDC”) during the COVID-19 pandemic which suspended the introduction of certain
noncitizens into the United States on public health grounds.
The United States has filed a Motion to Dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6). (Doc. 17). Among other things, the United States
argues Plaintiffs’ claims arise out of actions from which the United States is immune from
suit under 28 U.S.C. § 2680. Plaintiffs have filed a Response (Doc. 26), and the United
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States has filed a Reply (Doc. 28). For the reasons that follow, the Motion to Dismiss is
GRANTED.
I. 	PRELIMINARY M ATTER – M OTION TO PROCEED U NDER PSEUDONYM
A.R.M.R. is seeking asylum in the United States based on fear that she and her
family will be persecuted or tortured if they are deported. Plaintiff contends that
disclosure of her identity may place her and her family in danger from the individuals
the family is fleeing from. Accordingly, A.R.M.R. has filed a motion seeking leave to
proceed under a pseudonym. (Docs. 5 and 6). A.R.M.R. further contends that her request
to proceed anonymously should be granted to protect her private mental and physical
health information. The United States is not opposed to the request. (Doc. 21).
The Federal Rules of Civil Procedure require that all parties to a lawsuit be
named. See Fed. R. Civ. P. 10(a) (providing that the “title of the complaint must name all
the parties”); Fed. R. Civ. P. 17(a)(1) (requiring that an action “be prosecuted in the name
of the real party in interest”). A court may permit a party to use a pseudonym in
extraordinary circumstances only—when the party demonstrates that his interests
outweigh both prejudice to the opposing party if anonymity were permitted and “the
rights of the public to have open judicial proceedings and to know who is using court
facilities and procedures funded by public taxes.” See Doe v. Village of Deerfield, 819 F.3d
372, 377 (7th Cir. 2016).
Here, although A.R.M.R.’s desire to safeguard her private health information
alone is insufficient to justify anonymity, her allegations of fleeing persecution and
torture, coupled with the fear of violence if her identity is revealed, constitute compelling
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grounds for proceeding under a pseudonym. See P.A.-V. v. Bondi, 148 F.4th 511, 515, n.1
(7th 	Cir. 	2025) 	(fear 	of 	retaliation 	endangering 	petitioner 	and 	family 	warrants
anonymity); Doe v. City of Chicago, 360 F.3d 667, 669 (7th Cir. 2004) (danger of retaliation
is a compelling basis); Doe v. Gonzales, 484 F.3d 445, 446 (7 th Cir. 2007) (fear of home-
country retaliation sufficient). Further, as in P.A.-V., the potential harm from disclosure
outweighs any potential harm of concealing A.R.M.R.’s identity. P.A.-V., 148 F.4 th at 515
n.1. Accordingly, the Motion to Proceed Under a Pseudonym (Doc. 6) is GRANTED.
II. 	B ACKGROUND
A. Interim Final Rule
On March 24, 2020, in response to the emerging COVID-19 pandemic, the U.S.
Department of Health and Human Services (HHS) issued an Interim Final Rule under §
265 of the Public Health Services Act. Interim Final Rule, Control of Communicable
Diseases; Foreign Quarantine: Suspension of Introduction of Persons Into United States
From Designated Foreign Countries or Places for Public Health Purposes, 85 Fed. Reg.
16559-01, 2020 WL 1330968, (March 24, 2020) (“Interim Final Rule”). The Interim Final
Rule set forth a regulatory framework through which the CDC could issue orders
“suspend[ing] the introduction of persons from designated countries or places, if
required, in the interest of public health.” Id. The Interim Rule defined the “introduction
into the United States of persons from a foreign country” as “the movement of a person
from a foreign country ... so as to bring the person into contact with persons in the United
States ... in a manner that the [CDC] Director determines to present a risk of transmission
of a communicable disease.” Id. at 16,566. This definition included “those who have
3
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physically crossed a border of the United States and are in the process of moving into the
interior in a manner the Director determines to present a risk of transmission of
a communicable disease.” Id. at 16,563.
Comments to the Interim Rule expressly noted that although then-existing
regulations allowed the “CDC to quarantine or isolate persons entering the United
States,” they did not “address the suspension of the introduction of persons entering into
the United States under section 362.” The comments went on to explain that, given
concerns about COVID-19, protecting the public health may require suspension of the
introduction of persons into the United States. Accordingly, the commentary explained,
the CDC found it was necessary to promulgate regulations implementing § 265 of the
Public Health Service Act. Id.
B. March 2020 Order
Under the authority of the Interim Final Rule, the CDC issued an order requiring
“a temporary suspension of the introduction of covered aliens into the United States” for
a designated period of time. Notice of Order Under Sections 362 and 365 of the Public
Health Service Act Suspending Introduction of Certain Persons From Countries Where a
Communicable Disease Exists, 85 Fed. Reg. 17060-02, 17061, 2020 WL 1445906 (March 26,
2020) (“March 2020 Order”). The term “covered aliens” was defined to include those
“traveling from Canada or Mexico (regardless of their country of origin) who would
otherwise be introduced into a congregate setting in a land [Port of Entry] or Border
Patrol station at or near the United States border with Canada or Mexico, subject to
exceptions.” Id. at 17061. The March 2020 Order did not apply to:
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U.S. citizens, lawful permanent residents, and their spouses and children;
members of the armed forces of the United States, and associated personnel,
and their spouses and children; persons from foreign countries who hold
valid travel documents and arrive at a POE; or persons from foreign
countries in the visa waiver program who are not otherwise subject to travel
restrictions and arrive at a POE.
Id. Additionally, the Order included a humanitarian exception for “persons whom
customs officers of DHS determine, with approval from a supervisor, should be excepted
based on the totality of the circumstances, including consideration of significant law
enforcement, officer and public safety, humanitarian, and public health interests.” Id.
The March 2020 Order mandated “the movement of all such aliens to the country
from which they entered the United States, or their country of origin, or another location
as practicable, as rapidly as possible, with as little time spent in congregate settings as
practicable under the circumstances.” Id. Its objective was to minimize the “serious
danger [to the public health] of the introduction of COVID-19 into the land [Ports of
Entry] and Border Patrol stations . . . and the interior of the country as a whole” from
aliens “who would otherwise be introduced into a congregate setting” for immigration
processing. Id. at 17061. See also 85 FR at 17067 (“The faster a covered alien is returned . .
. the lower the risk the alien poses of introducing, transmitting, or spreading COVID-
19”). 1
1 In September 2020, the CDC issued a final rule implementing § 265. Control of Communicable Diseases;
Foreign Quarantine: Suspension of the Right to Introduce and Prohibition of Introduction of Persons into
United States From Designated Foreign Countries or Places for Public Health Purposes, 85 Fed. Reg. 56,424
(Sept. 11, 2020) (codified at 42 C.F.R. § 71.40). On October 16, 2020, the CDC published a revised order
pursuant to the Final Rule that replaced the March 2020 Order. 85 FR 65,806-01, 85 FR 65,806-01, 65,808
(Oct. 16, 2020) (“Title 42 Order”). Plaintiffs were detained by CBP agents on March 30, 2020 and were
expelled from the United States to Mexico on April 6, 2020. As such, the Final Order, issued in September
2020, and the Title 42 Order, issued in October 2020, are not applicable to Plaintiffs’ claims. Instead, the
CDC order applicable to Plaintiffs’ claims is the March 2020 Order.
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C. Operational Plan for Implementing the March 2020 Order 2
The March 2020 Order charged the Department of Homeland Security (“DHS”)
and CBP with implementing its provisions. 85 FR 17060-02, 17067. To that end, CBP
developed an operational plan to implement the March 2020 Order. Id. (stating that “CBP
[had already] developed an operational plan for implementing the order.”).
CBP’s operational plan was issued in a memorandum on April 2, 2020 (“CAPIO-1
Memo”). (See Exhibit 1 COVID-19 CAPIO-1 Memo). 3 The CAPIO-1 Memo provided that
“Injured Alien[s]” are not amenable to being expelled. (Exhibit 1, pg. 3). 4 Additionally, it
provided the following guidance as to Convention Against Torture claims:
Aliens that make an affirmative, spontaneous and reasonably believable
claim that they fear being tortured in the country they are being sent back
2 The Court may consider the CAPIO Memo because the Plaintiffs reference it in their Complaint (Doc. 1 ¶
22 n. 12), and it is central to their claims. Mueller v. Apple Leisure Corp., 880 F.3d 890, 895 (7th Cir. 2018).
3 Plaintiffs’ Complaint references guidance issued by CBP in March 2020 and provides a link to what is
purportedly 	the 	March 	2020 	CAPIO 	Memo. 	(Doc. 	1, 	¶ 	22 	and 	n. 	12) 	(citing 	(citing
https://www.cbp.gov/sites/default/files/assets/documents/2021-Nov/COVID%2019%20Capio.pdf).
Although the linked memo undated, filings in other district courts indicate it is identical to the CAPIO
issued in conjunction with the March 2020 Order. See, e.g., Huisha-Huisha v. Mayorkas, No. 21-cv-100-EGS
(D.D.C.), Doc. Nos. 57, 57-4, 57-5 at 15; P.J.E.S. v. Wolf, No. 20-cv-2245-EGS (D.D.C.), Doc. No. 15-1
(attaching CAPIO issued with March 2020 Order); Martinez v. United States, No. 2:24-cv-414-JKW-LRL (E.D.
Va.), Doc. Nos. 6 and 6-1 (indicating that the CAPIO attached at Doc. 6-1 is the CAPIO issued in conjunction
with the March 2020 Order). Other courts acknowledge a second, revised CAPIO issued in May 2020. See,
e.g., M.M.B.B. v. United States, No. 1:24-cv-5031-TWT (N.D. Ga.), Doc. No. 20 at 5–7 & Exs. 20-2, 20-3;
Martinez v. United States, No. 2:24-cv-414-JKW-LRL (E.D. Va.), Doc. No. 6 at 5–6 (stating that the version
attached to the complaint is the earlier CAPIO and that Doc. No. 6-3 is the revised May 2020 CAPIO which
was issued to “support” the May 2020 Concept of Operations Plan found at Doc. No. 6-4). The parties also
reference the CAPIO issued in May 2020, directing the Court to Doc. No. 6-3 in the Martinez case. (Doc. 17,
pg. 3 and Doc. 26, pg. 18). Given when Plaintiffs’ claims arose, the CAPIO linked in Plaintiffs’ Complaint,
rather than the revised CAPIO at Doc. No. 6-3 in Martinez, is the version in effect at the time of the alleged
conduct. Plaintiffs cite language from the revised CAPIO to support their discretionary function argument,
but that language does not appear in the earlier version applicable to Plaintiffs’ claims and linked in the
Complaint. The Court attaches both versions as exhibits to this Order. For clarity, Exhibit 1 (CAPIO-1
Memo) is the version linked in the Complaint and the version issued in conjunction with the March 2020
Order, and Exhibit 2 (CAPIO-2 Memo) is the revised version issued in May 2020.
4 CAPIO-2 Memo provided that an “Injured Alien” is a subject “that may be excepted from” the Order.
(Exhibit 2, pg. 2).
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to, will be taken to the designated station and referred to USCIS. Agents
should seek Supervisory Guidance.
(Exhibit 1, pg. 4) (emphasis supplied). 5 In determining whether individuals were subject
to the Order, agents were instructed to make decisions “[b]ased on training, experience,
physical observation, technology, questioning and other considerations...” (Exhibit 1, pg.
1). 6 If an agent determined it was “more likely than not” that an individual was a covered
alien, that individual was to be “transported to the nearest [Port of Entry] and
immediately returned to Mexico or Canada depending on their point of transit.” (Id. at 1,
3). 	The CAPIO-1 Memo, 	did 	not 	provide 	instructions 	on 	medical 	screenings 	or
procedures for determining whether an Alien may have COVID-19, for determining
whether a Convention Against Torture claim was “reasonably believable,” or for
determining whether an individual was “injured.”
A revised CAPIO was issued in May 2020 (CAPIO-2 Memo). (See Exhibit 2 COVID-
19 CAPIO-2 Memo). As is relevant here, the CAPIO-2 Memo additionally instructed as
follows:
[T]he order does not apply to persons who Border Patrol agents determine,
with approval from a supervisor, should be excepted based on the totality
of 	the 	circumstances, 	including 	consideration 	of 	significant 	law
enforcement, officer and public safety, humanitarian, and public health
interests. DHS will consult with CDC concerning how these types of case-
5 The CAPIO-2 Memo provided as follows:
Aliens who affirmatively and plausibly claim a reasonable fear of torture in the country to
which they will be sent will be segregated and referred to U.S. Citizenship and
Immigration Services for assessment.
Agents should seek Supervisory Guidance.
(Exhibit 2, pg. 2).
6 The CAPIO-2 Memo provided the same. (Exhibit 2, pg. 1).
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by-case, individualized exceptions will be made to help ensure consistency
with current CDC guidance and public health assessments.
(Exhibit 2, pg. 1). Although this language was not included in the CAPIO-1 Memo,
virtually identical language was included in the March 2020 Order. 85 FR 17060-02, 17061.
Like its predecessor, the CAPIO-2 Memo did not provide instructions on medical
screenings or procedures for determining whether an Alien may have COVID-19, for
determining whether an individual had “affirmatively and plausibly” asserted “a
reasonable fear of torture” 7 , or for determining whether an individual was “injured.”
D. Plaintiffs’ Expulsion from the United States
On March 30, 2020, Plaintiff A.R.M.R., a Honduran national, entered the United
States near Hidalgo, Texas. (Doc. 1, pgs. 3, 8). A.R.M.R., who was pregnant, was
accompanied by F.J.D.L. and their then-three-year-old son. (Doc. 1, pg. 8). The family was
fleeing persecution in Honduras and intended to seek asylum in the United States. (Doc.
1, pgs. 8-9). Upon entry to the United States, Plaintiff contacted CBP agents. After being
examined by emergency medical staff, Plaintiff and her son were transported to a
detention center. (Doc. 1, pg. 9). One day later, Plaintiff was admitted to the hospital in
McAllen, Texas where she gave birth to her daughter, A.P.D.M. (Doc. 1, pg. 9).
On April 2, 2020, A.R.M.R. was discharged from the hospital with A.P.D.M. and
transported to the detention center holding her partner and son. (Doc. 1, pg. 10). After
four days in CBP custody, during which time the family stated their fear of persecution
7 The CAPIO-1 Memo referenced an “affirmative, spontaneous and reasonably believable claim…” (Exhibit 1, pg. 4).
The CAPIO-2 Memo references individuals who “affirmatively and plausibly claim a reasonable fear of torture…”
(Exhibit 2, pg. 3).
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or torture in Honduras, CBP agents told the family that they were being expelled to
Reynosa, Mexico due to COVID-19. (Id.). A.R.M.R. and her partner protested their
family’s expulsion. (Id.).
A.R.M.R. and F.J.D.L. asked CBP agents how to register A.P.D.M. as a United
States Citizen. (Doc. 1, pg. 11). CBP agents falsely told them that A.P.D.M. was not able
to register for citizenship at that time, that she could not return to the United States until
she was 18 years old, and that only A.P.D.M., not her parents, could register her
citizenship. (Id.).
The family was expelled to Mexico on April 6, 2020. (Doc. 1, pg. 11). The family
only had the clothes they were wearing and a few diapers and baby wipes. (Id.). CBP
agents did not provide them with a cell phone, money, or food. (Id.). Additionally, CBP
agents did not provide any documentary evidence of the expulsion, did not provide
A.P.D.M.’s birth certificate, and did not return A.R.M.R.’s identity card. (Doc. 1, pg. 12).
A.R.M.R. and her family did not know anyone in Mexico. (Doc. 1, pg. 12). They
were assisted by a “generous woman” who allowed the family to live with her for
approximately one month. (Id.). Thereafter, they received assistance from charities. (Doc.
1, pg. 13). Because the family did not have money and A.R.M.R. did not have an identity
card, A.R.M.R. was unable to receive post-natal medical care. (Id.). In March 2021, the
family submitted a parole request under Huisha-Huisha v. Mayorkas, No. 21-100 (EGS),
2021 WL 4206688 (D.D.C. Sept. 16, 2021). On March 30, 2021, the request was granted and
DHS paroled A.R.M.R. and her family into the United States. (Id.).
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III. 	C AUSES OF ACTION AND M OTION TO DISMISS
Plaintiffs bring this action against the United States under the FTCA, 28 U.S.C. §§
1346, 2671-2680, and assert the following claims: (1) false imprisonment for confining
A.P.D.M. following her birth and continuing through her physical expulsion to Mexico;
(2) false imprisonment for depriving A.R.M.R. of her liberty by expelling her from the
United States to Mexico when she was medically compromised, tested negative for
COVID-19, and feared physical injury, torture, or death if expelled to Honduras; (3)
expelling A.R.M.R. without first seeking USCIS review of A.R.M.R.’s fear claims; (4)
expelling Plaintiffs to a location or into conditions that placed their health and safety at
risk; (5) failure to return A.R.M.R.’s belongings; (6) failing to provide Plaintiffs with
information about obtaining a U.S. birth certificate for A.P.D.M.; and (7) intentional
infliction of emotional distress.
The United States asserts that Plaintiffs’ claims arise out of actions from which the
United States is immune from suit under 28 U.S.C. § 2680. Specifically, the United States
contends that the quarantine exception to the FTCA, 28 U.S.C. § 2680(f), bars Counts I-
VII; the foreign country exception to the FTCA, 28 U.S.C. § 2680(k), bars Counts I,II,IV,
and VII; the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a), bars Count
II; the detention of goods exception to the FTCA, 28 U.S.C. § 2680(c), bars Count V; and
the misrepresentation or deceit exception to the FTCA, 28 U.S.C. § 2680(h), bars Count
VII. (Doc. 26, pg. 7-17). Additionally, the United States contends that Counts I and II fail
to state claims for false imprisonment under Texas law; Count III fails to state a claim for
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violating Title 42; and Counts III and IV are not viable because they are premised on
alleged violations of federal law. (Doc. 26, pgs. 17-18).
I9. 	A PPLICABLE STANDARD
A. Rule 12(b)(6)
To survive dismissal pursuant to Rule 12(b)(6), the complaint must contain a short
and plain statement of the plaintiff's claim sufficient to plausibly demonstrate entitlement
to relief. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–57 (2007). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
On review of a Rule 12(b)(6) motion, the Court construes the complaint in the light
most favorable to the plaintiff. United States ex rel. Berkowitz v. Automation Aids, Inc., 896
F.3d 834, 839 (7th Cir. 2018). This means the Court accepts all well-pleaded factual
allegations as true and draws all reasonable inferences from those facts in favor of the
plaintiff. Id. Allegations that are, in reality, legal conclusions are not taken as true and
cannot survive a Rule 12(b)(6) challenge. McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d
873, 885 (7th Cir. 2012).
B. Affirmative Defenses
Plaintiffs are not required to plead around affirmative defenses. However, an
affirmative defense may be the basis for a Rule 12(b)(6) dismissal if “the allegations of the
complaint itself set forth everything necessary to satisfy the affirmative defense.” Brooks
v. Ross, 578 F.3d 574, 579 (7th Cir. 2009) (citing United States v. Lewis, 411 F.3d 838, 842 (7th
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Cir. 2005)). In the Seventh Circuit, the exceptions contained in 28 U.S.C. § 2680 are
considered affirmative defenses that the United States must assert and prove.8 	See
McCoy v. United States, 731 F. App'x 524, 526 (7th Cir. 2018) (discretionary function
exception is a “defense to liability, not a jurisdictional bar[.]”); Williams v. Fleming, 597
F.3d 820, 824 (7th Cir. 2010) (“[T]he proper inquiry is not one of jurisdiction, but whether
the United States has a defense to suit.’) abrogated on other grounds by Simmons v.
Himmelreich, 578 U.S. 621 (2016); Parrott v. United States, 536 F.3d 629, 634ï35 (7th Cir.
2008) (“The statutory exceptions enumerated in § 2680(a)-(n) to the United States's waiver
of sovereign immunity (found in § 1346(b)) limit the breadth of the Government's waiver
of sovereign immunity, but they do not accomplish this task by withdrawing subject-
matter jurisdiction from the federal courts.”).
With respect to these affirmative defenses, the Seventh Circuit has instructed
courts to “scrutinize the cause of action” and, if a § 2680 exception is applicable, “relieve
the United States from the burden of defending against a lawsuit.” Williams v. Fleming,
597 F.3d 820, 824 (7th Cir. 2010), abrogated on other grounds by Simmons v. Himmelreich,
578 U.S. 621 (2016). This comports with the notion that immunity questions should be
resolved at the earliest opportunity because “ ‘[t]he entitlement is an immunity from
suit rather than a mere defense to liability[.]’ ” Hunter v. Bryant, 502 U.S. 224, 227 (1991)
(quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
8 Other circuits treat the § 2680 exceptions as jurisdictional limitations. See, e.g., Seaside Farm, Inc. v.
United States, 842 F.3d 853, 858 (4th Cir. 2016), cert. denied, 137 S. Ct. 2307 (2017); Kohl v. United States, 699
F.3d 935, 940 (6th Cir. 2012); Loughlin v. United States, 393 F.3d 155, 162 (D.C. Cir. 2004).
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V. 	R ELEVANT STATUTORY SCHEMES
A. The Federal Tort Claims Act
The FTCA, enacted in 1946 and codified in multiple sections of Title 28 of the
United States Code, “waive[s] the sovereign immunity of the United States for certain
torts 	committed 	by 	federal 	employees” 	acting 	within 	the 	scope 	of 	their
employment. FDIC v. Meyer, 510 U.S. 471, 475–476 (1994). Under the FTCA, the United
States is liable “in the same manner and to the same extent as a private individual under
like 	circumstances.” 28 	U.S.C. 	§ 	2674; see 28 	U.S.C. 	§ 	1346(b) (providing 	exclusive
jurisdiction to federal district courts over negligence claims against federal employees
“acting within the scope of his office or employment, under circumstances where the
United States, if a private person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred.”).
There are, however, many exceptions to the waiver of sovereign immunity under
the FTCA. 28 U.S.C. § 2680 (a-n). “The § 2680 exceptions are designed to protect certain
important governmental functions and prerogatives from disruption.” Molzof v. United
States, 502 U.S. 301, 311 (1992). Congress was also concerned about “ensuring that certain
governmental activities [would] not be disrupted by the threat of damage suits.” Kosak v.
U.S., 465 U.S. 848, 858 (1984).
B. Public Health Service Act
“Congress enacted the Public Health Service Act (“PHSA”) in 1944 to enable the
federal government to meet the country's growing public health needs.” Evans v. United
States, 132 F.4 th 473, 477 (7th Cir. 2025). The March 2020 Order was promulgated under
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§§ 265 and 268 of the PHSA. Congress located both sections in subchapter II, part G of
Title 42 of the U.S. Code, which is titled “Quarantine and Inspection.” As is relevant to
the parties’ arguments, Sections 264 and 271 are also located within Title 42’s “Quarantine
and Inspection” provisions. 9 An overview of each of these provisions is provided below.
a. 42 U.S.C. § 264 – Regulations to Control Communicable Diseases
Section 361 of the PHSA, codified at 42 U.S.C. § 264, authorizes the Secretary of
HHS, through the CDC, 10 to make and enforce regulations “necessary to prevent the
introduction, transmission, or spread of communicable diseases from foreign countries
into the States or possessions, or from one State or possession into any other State or
possession.” 42 U.S.C. § 264(a). 	Additionally, 	the 	Secretary 	has 	the 	authority 	to
apprehend and examine “any individual reasonably believed to be infected with a
communicable disease in a qualifying stage” who is moving across state lines. 42 U.S.C.
§ 264(d). If such an individual is found to be infected, the Secretary can detain the
individual for such a time, and in such a manner as may be reasonably necessary. 42
9 Subchapter II, Part G, includes the following “Quarantine and Inspection” provisions: (1) Section 264,
Regulations to Control Communicable Diseases; (2) Section 265, Suspension of Entries and Imports from
Designated Places to Prevent Spread of Communicable Diseases; (3) Section 266, Special Quarantine
Powers in Time of War; (4) Section 268, Quarantine Duties of Consular and other Officers; (5) Section 269,
Bills of Health; (6) Section 270, Quarantine Regulations Governing Civil Air Navigation and Civil Aircraft;
(7) Section 271, Penalties for Violation of Quarantine Laws; and (8) Section 272, Administration of Oaths by
Quarantine Officers.
10 Sections 264 and 265 grant authority to the Surgeon General. However, the Reorganization Plan No. 3 of
1966 abolished the Office of the Surgeon General and transferred the functions of the Surgeon General to
the Secretary of Health, Education, and Welfare, which was later redesignated the Secretary of Health and
Human Services, and retained the authorities under 42 U.S.C. § 264 and § 265 despite the Office of the
Surgeon General being reestablished in 1987. Control of Communicable Diseases, 81 Fed. Reg. 54,230, at
54,232 (Aug. 15, 2016) (codified at 42 C.F.R. pts. 70, 71 (2017)).
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U.S.C. § 264(d). Regulations promulgated under § 264 were in existence prior to the
COVID-19 pandemic.
b. 	42 U.S.C. § 265 – Suspension of Entries and Imports from Designated
Places to Prevent Spread of Communicable Diseases
The March 2020 Order was issued, in part, under the authority of Section 362 of
the PHSA. 85 FR 17060-02. Section 362 of the PHSA, codified at 42 U.S.C. § 265 under the
heading “Suspension of Entries and Imports from Designated Places to Prevent Spread
of Communicable Diseases,” provides as follows:
Whenever the Surgeon General determines that by reason of the existence
of any communicable disease in a foreign country there is serious danger of
the introduction of such disease into the United States, and that this danger
is so increased by the introduction of persons or property from such
country that a suspension of the right to introduce such persons and
property is required in the interest of the public health, the Surgeon
General, in accordance with regulations approved by the President, shall
have the power to prohibit, in whole or in part, the introduction of persons
and property from such countries or places as he shall designate in order to
avert such danger, and for such period of time as he may deem necessary
for such purpose.
42 U.S.C. § 265. Prior to March 2020, no regulation specifically addressed the CDC’s
authority to suspend the introduction of classes of persons or property from foreign
countries under § 265. 11
11 In Huisha-Huisha v. Mayorkas, 27 F.4th 718 (D.C. Cir. 2022), the United States Court of Appeals for
the District of Columbia Circuit discussed the history of § 265:
In 1893, Congress passed the precursor to [§ 265]. Act of Feb. 15, 1893, ch. 114, § 7, 27
Stat. 449, 452. That year, cholera was overrunning much of the world. See Cholera
Through History, 	Britannica, 	https://www.britannica.com/science/cholera/Cholera-
through-history (last visited Feb. 17, 2022). In response, Congress authorized the
Executive to determine that individuals from certain countries should be excluded
from the United States during public-health emergencies.
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c. 	42 U.S.C. § 271 – Penalties for Violation of Quarantine Laws
Section 368 of the PHSA, codified at 42 U.S.C. § 271 under the heading “Penalties
for Violation of Quarantine Laws,” prescribes penalties for violating:
any regulation prescribed under sections 264 to 266 of this title, or any
provision 	of section 	269 of 	this 	title 	or 	any 	regulation 	prescribed
thereunder, or who enters or departs from the limits of any quarantine
station, 	ground, 	or 	anchorage 	in 	disregard 	of 	quarantine 	rules 	and
regulations or without permission of the quarantine officer in charge[.]
42 U.S.C. § 271(a).
d. 	42 U.S.C. § 268 – Quarantine Duties of Consular and Other Officers
The second authority for the issuance of the March 2020 Order was Section 365 of
the PHSA. Section 365 of the PHSA, codified at 42 U.S.C. § 268 under the heading
“Quarantine Duties of Consular and Other Officers,” provides as follows:
(b) It shall be the duty of the customs officers and of Coast Guard officers
to aid in the enforcement of quarantine rules and regulations; but no
additional compensation, except actual and necessary traveling expenses,
shall be allowed any such officer by reason of such services.
42 U.S.C. § 268(b).
Despite the cholera pandemic, the Executive did not issue a prohibition under that law
until 1929. In response to a meningitis outbreak that year, the Executive declared that the
“continued arrival of vessels” carrying meningitis-infected passengers had “overtaxed the
combined available quarantine facilities of federal and local health authorities.” Exec.
Order No. 5143 (June 21, 1929), App. 201. It therefore ordered that “no persons may be
introduced directly or indirectly by transshipment or otherwise into the United States”
from China or the Philippines “for such period of time as may be deemed necessary.” Id.
Fifteen years later, the 1893 statute was recodified at 42 U.S.C. § 265, given a new title, and
slightly edited.
Mayorkas, 27 F.4 th at 723.
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Consistent with 42 U.S.C. § 268(b), the March 2020 Order tasked DHS and CBP
with implementing its directives. 85 FR 17060-02 at 17067. (noting that “because CDC
does not have the capability, resources, or personnel needed to [implement the March
2020 	Order]” 	the 	CDC 	consulted 	with 	DHS 	and 	requested 	that 	DHS 	assume
responsibility for implementation); see also id. (“As part of the consultation [with DHS],
CBP developed an operational plan for implementing the order.”).
V,. 	DISCUSSION
A. Exceptions to Sovereign Immunity – 28 U.S.C. § 2680
The United States’ sovereign immunity under the FTCA is limited by several
statutory exceptions. See 28 U.S.C. § 2680. The United States contends that Plaintiffs’
claims are barred by FTCA’s exceptions for quarantines, injuries in a foreign country,
discretionary functions, the detention of goods, and misrepresentation or deceit. The
Court addresses each argument in turn below.
1. 	Quarantine Exception – 28 U.S.C. § 2680(f)
Under the quarantine exception, the FTCA’s sovereign immunity waiver does not
apply to “[a]ny claim for damages caused by the imposition or establishment of
a quarantine by the United States.” 28 U.S.C. § 2680(f). Legislative history indicates that
“the quarantine exception was considered as part of a group of exceptions for ‘claims
which relate to certain governmental activities which should be free from the threat of
damage suit.’” Delgadillo v. United States, No. CV B-17-59, 2018 WL 5732080, at *11 (S.D.
Tex. Sept. 5, 2018), report and recommendation adopted, No. 1:17-CV-00059, 2018 WL
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6732888 (S.D. Tex. Nov. 6, 2018), aff'd sub nom. Cascabel Cattle Co., L.L.C. v. United States,
955 F.3d 445 (5th Cir. 2020) (citing Report of the Joint Committee on the Organization of
Congress to Accompany H.R. 181, House. Rep. No. 1287, 79th Cong., 1st Sess. (1945) 6).
The United States contends the March 2020 Order established a foreign quarantine
by expelling covered aliens from the United States to various locations abroad with the
goal of combating the spread of COVID-19. (Doc. 17, pg. 9). As such, the United States
argues, Plaintiffs’ claims, which stem from their expulsion under the March 2020 Order,
allege harm caused by the implementation of a quarantine and are barred by the FTCA’s
quarantine exception.
Plaintiffs contend that the word “quarantine” is limited to forced isolations of the
sick, not expulsions of asylum seekers. (Doc. 26, pg. 11). 12 They also note that the
exception has “predominantly” been applied to livestock, not human beings. (Doc. 26,
12 Plaintiffs contend that, “at the time § 2680 was enacted, ‘quarantine’ was defined as the ‘enforced isolation
of a person infected with a contagious disease.’” (Doc. 26, pgs. 10-11). Plaintiffs further contend that “the
verb ‘to isolate’ was defined as ‘to keep from usual or normal association or intercourse with.’” (Id.).
Plaintiffs attach an affidavit purporting to provide the Court with screenshots of these definitions taken
from the 1944 edition of Webster’s Complete Reference Dictionary and Encyclopedia. (Doc. 27, pg. 1). The
attached screenshots, however, are taken from Webster’s New International Dictionary of the English Language
(Second Edition) and do not pertain to the referenced definitions. Instead, the screenshots include
definitions of words beginning with “cath”, such as “cathedral” and “catholic.” (Doc. 27, pgs. 3-7). The
Court has reviewed the 1944 edition of Webster’s Complete Reference Dictionary and Encyclopedia, and notes
the following definition:
Quarantine, n. the time (originally 40 days) during which a vessel suspected of carrying
infectious disease is prohibited from intercourse with shore; enforced isolation of a person
infected with a contagious disease; restraint on the transportation of animals, plants, or
goods suspected of bearing disease germs: v.t. to place under quarantine; to isolate; to keep
from usual or normal association or intercourse with.
Webster’s Complete Reference Dictionary and Encyclopedia 425 (The World Publ’g Co. 1944) (defining
“quarantine”) (attached hereto as Exhibit 3).
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pg. 10). Plaintiffs further contend that the legislative history of the PHSA and “clues” in
the 	regulations 	implementing 	the 	PHSA’s 	quarantine 	and 	inspection 	provisions
demonstrate that the March 2020 Order cannot be considered the imposition of a
“quarantine” under § 2680(f).
The Court begins its analysis by looking to the text of § 2680(f) “to ascertain [the]
plain meaning” of “quarantine.” Jackson v. Blitt & Gaines, P.C., 833 F.3d 860, 863 (7th Cir.
2016). In doing so, the Court looks “to the particular statutory language at issue, as well
as the language and design of the statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S.
281, 291 (1988). The term “quarantine” is not defined in the FTCA. Accordingly, the Court
will interpret it “as taking [its] ordinary, contemporary, common meaning.” Sandifer v.
U.S. Steel Corp., 571 U.S. 220, 227 (2014). A word’s “ordinary, contemporary, common”
meaning is found “by looking at what [the word] meant when the statute was enacted,
often by referencing contemporary dictionaries.” United States v. Melvin, 948 F.3d 848, 852
(7th Cir. 2020). “If the statutory language's plain meaning is unambiguous, [the] inquiry
ends there.” Id.
Despite Plaintiffs’ arguments to the contrary, contemporary dictionaries confirm
that “quarantine” was not narrowly limited to isolating infected persons, nor confined to
livestock. 	For 	example, 	Webster’s 	New 	International 	Dictionary, 	Second 	Edition,
Unabridged defined “quarantine” as:
The term, orig. of forty days, during which a ship arriving in port, and
suspected of being infected with a malignant contagious disease, is obliged
to forbear all intercourse with the shore; hence, such restraint or inhibition
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of intercourse, or the measures taken to enforce it; also, the place where
infected or prohibited vessels are stationed. Now, in a wider sense, any
forced stoppage of travel, communication, or intercourse, due to contagions
or infections or the spreading of plant and animal pests on land or by sea.
Quarantine regulation comes under the police powers of a state.
Webster’s New International Dictionary 2033 (2d ed. 1947) (defining “quarantine”) (attached
hereto as Exhibit 4).
The 	same 	edition 	of 	Webster’s 	New 	International 	Dictionary 	also 	defines
“quarantine” as “[a] restraint or interdiction placed upon the transportation of animals,
plants, or goods, suspected of being carriers of disease…[or] [t]o compel to remain at a
distance, or in a given place, without intercourse, when suspected of having contagious
disease…[or] [t]o exclude (one) by quarantine.” Id.
Funk & Wagnalls New Practical Standard Dictionary defines “quarantine” as
“[t]he enforced isolation for a fixed period of persons, ships, or goods arriving from
places infected with contagious disease, or of any persons who have been exposed to such
infection…[or] [t]he enforced isolation of any person or place infected with contagious
disease; loosely, any enforced isolation.” Funk & Wagnalls New Practical Standard
Dictionary 1070 (1954) (attached hereto as Exhibit 5).
Similarly, Bouvier’s Law Dictionary (1934), Webster’s New Standard Dictionary
(1946), and Webster’s Complete Reference Dictionary and Encyclopedia (1944) describe
quarantine as including the detention or exclusion of ships, goods, or individuals to
prevent introduction of disease. See Bouvier’s Law Dictionary 1007 (1934) (defining
“quarantine”) (attached hereto as Exhibit 6) (the time “during which the crew of a ship
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or vessel coming from a port or place infected or supposed to be infected with disease are
required to remain on board after their arrival, before they can be permitted to land.”);
Webster’s New Standard Dictionary of the English Language 456 (1946) (attached hereto as
Exhibit 7) (“days during which a ship suspected to be infected with a contagious disease
is obliged to forbear intercourse with the shore”; and to “[p]rohibit from intercourse from
fear of infection.”); Webster’s Complete Reference Dictionary and Encyclopedia 425 (1944)
(Exhibit 3) (the time “during which a vessel suspected of carrying infectious disease is
prohibited from intercourse with shore”; “restraint on the transportation of animals,
plants, or goods suspected of bearing disease germs”; or “to keep from usual or normal
association or intercourse with.”). See also Bouvier’s Law Dictionary 1007 (1934) (Exhibit 6)
(defining the term “quarantine laws”) (“Laws the object and the end of which is to
provide for the safety of its citizens by preventing, as far as human means can prevent it,
the introduction among them of contagious and infectious diseases.”); Id. (as to
quarantines, noting that, by act of congress, “vessels from foreign ports where contagious
and other diseases exist, are forbidden to enter the United States” and that “detention
and disinfection of immigrants by order of a state board of health, with the purpose of
preventing infectious disease, is not a regulation of foreign commerce by a state within
the meaning of the constitution.”).
These 	definitions 	demonstrate 	two 	things: 	First, 	“quarantine” 	historically
encompassed measures directed at persons, animals, goods, and conveyances, not only
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livestock. 13 Second, it was not limited to isolating infected individuals within the United
States. Instead, quarantine was understood to encompass a range of measures aimed at
preventing the spread of disease, such as excluding, restraining, or detaining persons and
goods suspected of carrying contagion. The March 2020 Order fits within that framework.
The Order prohibited specified individuals from entering the country and allowed
officials to restrain and return those individuals to their point of origin, thereby
compelling them to remain outside the United States. These mechanisms mirror the
traditional quarantine practices utilized during the relevant period, such as prohibiting a
ship from landing and detaining its occupants offshore. The Order’s purpose, to prevent
the introduction of COVID 19 into the country, is also consistent with the historic goal of
quarantine laws, which were directed not only at those already infected, but at
preventing a contagion from crossing the borders in the first place.
13 The Seventh Circuit has not addressed whether the quarantine exception applies to humans. Although
some district courts have questioned whether the quarantine exception applies to humans, these decisions
carry little weight as they merely noted the dearth of case law and declined to resolve the issue. See Ates v.
United States, No. 2.21-CV-00418-JPH-MG, 2023 WL 1765991 (S.D. Ind. Feb. 2, 2023); Pressley v. United
States, No. 2:21-CV-00202-JMS-MG, 2023 WL 22192, at *4 (S.D. Ind. Jan. 3, 2023). The Court is not persuaded
by Plaintiffs’ reference on such cases. (See Doc. 26, pgs. 6-7). That “dog that didn’t bark” approach, treating
silence in the case law as reason to avoid analysis, is not persuasive. In contrast, courts that have analyzed
the statute’s plain language have concluded that the exception encompasses both humans and animals. See
Thieme v. United States, No. CV 21-682 (RMB-AMD), 2023 WL 2584102, at *9 (D.N.J. Mar. 21, 2023) (noting
that quarantine is defined as “isolation of a person or animal afflicted with a communicable disease or
prevention of such a person or animal from coming into a particular area, the purpose being to prevent the
spread of disease”, and concluding that “the ordinary meaning of quarantine encompasses persons and
animals.”); Foreman v. United States, No. 2:22-CV-10401, 2024 WL 4068775, at *10 (E.D. Mich. July 12, 2024),
report and recommendation adopted, No. 22-10401, 2024 WL 4249841 (E.D. Mich. Sept. 20, 2024) (agreeing
with the analysis in Thieme, concluding “the most reasonable interpretation of the quarantine exception [is
that it] does apply to human quarantines”).
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Thus, giving the statutory text its ordinary meaning, “quarantine” unambiguously
includes measures directed at persons for the purpose of preventing the introduction or
spread of a potential contagion. This is precisely what the March 2020 Order did.
Adopting the Plaintiffs’ proffered interpretation, that § 2680(f) restricts “quarantine” to
livestock, or to the isolation of individuals within the United States, requires reading
language into the statute that is not there. That is something the Court may not do. The
Court’s job is “to apply, not amend, the work of the People's representatives.” Henson v.
Santander Consumer USA Inc., 582 U.S. 79, 90 (2017). The Court will not read into § 2680(f)
limitations Congress did not include. See GE Betz, Inc. v. Zee Co., Inc., 718 F.3d 615, 624-
25 (7th Cir. 2013) (“A court has ‘no right, in the guise of construction of an act, to
either add words to 	or eliminate words from 	the 	language 	used 	by 	congress.’ ”)
(quoting King v. IRS, 688 F.2d 488, 491 (7th Cir. 1982)). See also Dolan v. U.S. Postal Serv.,
546 U.S. 481, 492 (2006) (“[T]he proper objective of a court attempting to construe one of
the subsections of 28 U.S.C. § 2680 is to identify ‘those circumstances which are within
the words and reason of the exception’—no less and no more.”) (quoting Kosak v. United
States, 465 U.S. 848, 853 n. 9 (1984)).
Plaintiffs urge the Court to look beyond the plain and ordinary meaning of
“quarantine” in § 2680(f), arguing the term’s meaning can be found by consulting the
PHSA’s quarantine and inspection provisions, legislative history, and implementing
regulations. The Court questions the propriety of this approach. Although the March 2020
Order was promulgated under the authority of the PHSA, the question before the Court
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is whether the United States is entitled to sovereign immunity, and the relevant statute
for resolving that question is the FTCA. Looking to the PHSA risks conflating distinct
statutes with different purposes; public health management versus the United States’ tort
liability. As is explained more fully below, there is little justification for concluding that
the PHSA has any relevance to deciphering the meaning of terms used in the FTCA.
Congress enacted the FTCA in Title 28, addressing the sovereign immunity of the
United States. By contrast, the PHSA is codified in Title 42, governing public health
powers. The two statutes are not part of the same scheme, nor do they cross-reference
each other. The Court cannot find, and Plaintiffs do not identify, any basis for concluding
that Congress intended the scope of the term “quarantine” in § 2680(f) to be tethered to
how the PHSA uses or implements that term. See Iverson v. United States, 973 F.3d 843, 850
(8th Cir. 2020) (“statutes [must] be in pari materia (‘on the same subject’) before courts can
construe them ‘as if they were one law.’”) (quoting Wachovia Bank v. Schmidt, 546 U.S. 303,
316 (2006).
The argument fares no better when framed in terms of regulations implementing
the quarantine and inspection provisions of the PHSA. First, some of Plaintiffs’
arguments pertain to PHSA regulations implemented after the FTCA and the quarantine
exception 	were 	enacted. 	But, “later 	laws 	that 	do 	not 	seek 	to 	clarify
an earlier enacted general 	term 	and 	do 	not 	depend 	for 	their 	effectiveness 	upon
clarification, or a change in the meaning of an earlier statute, are beside the point in
reading the first enactment.” Gutierrez v. Ada, 528 U.S. 250, 257–58 (2000) (internal
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quotation marks omitted). If such statutes are typically “beside the point” in reading an
earlier enactment, then certainly regulations, promulgated under a separate statutory
scheme at a later date, would not be relevant to interpreting the FTCA.
This principle is well illustrated in Iverson v. United States, 973 F.3d 843, 850 (8th
Cir. 2020). In Iverson, the Eighth Circuit rejected the government’s argument that
transportation security officers (“TSOs”) are not “officers” under the FTCA because
Congress identified them in a later, unrelated statute, the Aviation and Transportation
Security Act of 2001 (“ATSA”), as “employees.” Id. at 850. The court declined “the
invitation to disregard the FTCA’s ordinary meaning and instead import Congress’s
classification of TSOs as employees from the ATSA.” Id. at 849. In doing so, the Eighth
Circuit emphasized that adopting the government’s view “would require us to hold that
Congress silently altered a term’s meaning in one statute by passing an unrelated statute
almost 30 years later. Such a holding would be contrary to principles of statutory
interpretation.” Id. at 850. The court also noted that the ATSA and FTCA are not “on the
same subject,” with the former addressing traveler safety and the latter dealing with
federal sovereign immunity and thus should not be construed “as if they were one law.”
Id. 	(quoting Wachovia Bank v. Schmidt, 546 U.S. 303, 316 (2006)). See Leytman v.
Transportation Sec. Admin., No. 17-CV-4455 (NRM)(MMH), 2025 WL 997528, *7 (E.D.N.Y.
Mar. 31, 2025) (whether a TSO is considered a “law enforcement officer” under the
ATSA does 	not 	control 	whether 	a 	TSO 	is 	considered 	an 	“investigative 	or 	law
enforcement officer” under the FTCA).
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Second, deference is owed only to an agency exercising delegated authority
under the statute at issue. See Gonzales v. Oregon, 546 U.S. 243, 258 (2006); United
States v. Mead Corp., 553 U.S. 218, 226–27 (2001); Vulcan Constr. Materials, L.P. v. Fed.
Mine Safety & Health Rev. Comm'n, 700 F.3d 297, 312 (7th Cir. 2012). The CDC has
authority under the PHSA, not the FTCA. Nothing in the FTCA delegates to the CDC
(or any agency) the power to define its exceptions.
Finally, even if the Court were to rely on the PHSA, its provisions undermine
Plaintiffs’ 	arguments, 	showing 	that 	Congress 	intended 	§ 	265 	to 	confer
quarantine authority. Although § 265 does not explicitly use the word “quarantine,”
it 	is 	placed 	within 	the 	“Quarantine 	and 	Inspection” 	subchapter 	of 	the 	PHSA,
alongside 	provisions 	authorizing 	the 	CDC 	to 	issue 	regulations 	to 	control
communicable disease, 42 U.S.C. § 264, apprehend and detain persons, id. § 266, and
otherwise 	exercise 	quarantine 	powers, 	id. 	§§ 	267-272). 	That 	placement 	indicates
Congress viewed the “suspension of entries and imports” (§ 265) as a form of quarantine
power, designed to operate alongside the CDC’s other statutory tools for preventing
the 	introduction 	and 	spread 	of 	communicable 	disease. Davis v. Michigan Dept. of
Treasury, 489 U.S. 803, 809 (1989) (“It is a fundamental canon of statutory construction
that the words of a statute must be read in their context and with a view to their place
in the overall statutory scheme”). Section 271 reinforces this interpretation by expressly
designating § 265 as one of the “quarantine laws,” thereby confirming 	that 	Congress
understood 	the 	suspension-of-entry 	power 	as 	part 	of 	the 	statutory 	quarantine
scheme. See Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998) (the “title of
a 	statute 	and 	the heading of 	a 	section 	are tools available 	for 	the resolution of a
doubt about the meaning of a statute.”) (internal quotations and citations
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omitted); United States v. Fisher, 6 U.S. 358 386 (1805) (“Where the mind labors to discover
the design of the legislature, it seizes every thing from which aid can be derived; and in
such 	case 	the title claims 	a 	degree 	of 	notice, 	and 	will 	have 	its 	due 	share 	of
consideration.”). 	Finally, 	the 	Court 	notes 	that 	the 	March 	2020 	Order 	was 	also
promulgated, in party, under the authority of § 365, which provides that “[i]t shall be the
duty of the customs officers and of Coast Guard officers to aid in the enforcement
of quarantine rules and regulations…” 42 U.S.C. § 268(b).
The Court is also not persuaded by the Plaintiffs’ arguments pertaining to CDC
regulations promulgated prior to March 2020. First, Plaintiffs point to the comments
accompanying the Interim Final Rule wherein the CDC expressly noted that then-existing
regulations allowed the “CDC to quarantine or isolate persons entering the United
States,” but did not “address the suspension of the introduction of persons entering into
the United States under section 362.” They contend this distinction shows the CDC itself
did not regard § 265 as conferring quarantine authority. Plaintiffs are overreading the
commentary. The CDC was merely identifying a regulatory gap, not redefining the
statute. As previously discussed, Congress placed §§ 264 and 265 together in the PHSA’s
“Quarantine 	and 	Inspection” 	subchapter, 	and 	in 	§ 	271 	expressly 	identified 	both
provisions as “quarantine laws.” The absence of regulations implementing § 265 prior to
2020 demonstrates only that the CDC had not yet needed to utilize that authority. And
the fact that § 264 uses the word “quarantine,” does not mean that Congress intended to
exclude § 265 from that category. Rather, the statutory structure indicates that Congress
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viewed § 265 as conferring a quarantine power, albeit a different type of quarantine
power than the power conferred under § 264.
Second, Plaintiffs note that, prior to March 2020, implementing regulations
defined “quarantine” as the separation of those “reasonably believed to have been
exposed to a quarantinable communicable disease” from others. 42 C.F.R. § 71.1(b). (Doc.
26, pg. 11). Plaintiffs compare this to the interim rule, which provided definitions of
various terms, such as “[i]ntroduction into the United States,” “but did not define or
reference quarantine.” (Id.). According to Plaintiffs, this demonstrates the CDC itself
distinguishes “quarantine” from measures directed at “suspending” the introduction of
persons into the United States. But even if the Court assumes that the CDC’s choice of
which terms to define demonstrates the agency does not view § 265’s suspension of entry
authority as a quarantine power, Plaintiffs’ argument fails. As previously explained,
Congress viewed § 265 as conferring a type of quarantine authority and classified it as a
quarantine law. CDC regulations cannot override that classification. See Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–843 (1984). (although
regulations may illuminate ambiguities, they cannot override the “unambiguously
expressed intent of Congress.”).
Finally, Plaintiffs contend that the March 2020 Order cannot be a quarantine
measure 	because 	it 	was 	not 	accompanied 	by 	individualized 	written 	orders, 	as
contemplated by 42 C.F.R. § 71.37. This argument requires little discussion. Section 71.37
implements § 264, not § 265. The fact that § 265’s implementing regulations did not
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include a similar requirement is not dispositive. Nor could the absence of such a
provision displace congressional intent with respect to § 265.
To 	summarize, 	for 	the 	reasons 	discussed 	above, 	the 	Court 	finds 	that 	the
contemporaneous ordinary meaning of “quarantine” as used in § 2680(f) encompasses a
broad range of measures aimed at preventing the spread of disease, including the
exclusion, restraint, or detention of persons suspected of carrying a contagious disease.
The Court further finds that the March 2020 Order, which provided a regulatory
mechanism for exercising § 265’s quarantine powers, is a type of quarantine under §
2680(f).
This, however, does not end the Court’s inquiry. The Court must also assess
whether Plaintiffs’ alleged harms were “caused by” the “establishment” or “imposition”
of a quarantine. As is relevant here, the “imposition” of a quarantine “refers to the
manner in which the quarantine is carried out and enforced.” Cascabel Cattle Co., L.L.C. v.
United States, 955 F.3d 445, 451 (5th Cir. 2020). The phrase “caused by” has been
interpreted 	to 	mean “proximately 	caused 	by,” 	the 	crux 	of 	which 	is 	“reasonable
foreseeability.” Id. In Rey v. United States, 484 F.2d 45 (5th Cir. 1973), a quarantine case
involving livestock, the Fifth Circuit explained that the quarantine exception serves as a
bar “only to damages proximately resulting from quarantine status[,]” such as “loss in
value occasioned by physical restraint on livestock for a period of time or losses caused
by the forced exposure of healthy animals to diseased animals within the quarantine
area.” Rey at 48. The exception, however, does not apply to “[d]amages incidental to the
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quarantine itself,” such as “damages caused by the negligent operation of a motor vehicle
during the quarantine inspection process.” Id.
Plaintiffs allege that they were injured when CBP officers wrongfully detained and
expelled them from the United States and mishandled paperwork during the expulsion
process. Plaintiffs were only detained and expelled because CBP officers were executing
the March 2020 Order. Thus, Plaintiffs’ damages were not merely an incidental byproduct
loosely tied to enforcement of the March 2020 Order. To the contrary, the acts that
allegedly harmed Plaintiffs would not have occurred without enforcement of the order.
Accordingly, the Court finds that Plaintiffs’ claims were caused by implementation of a
quarantine, and that the United States is entitled to sovereign immunity with respect to
those claims.
In reaching this decision, the Court emphasizes that it is not tasked with
determining whether CBP officials correctly enforced the March 2020 Order or whether
their conduct was reasonable. FTCA immunity is retained even if the government acted
negligently, and even if the government’s actions were wrongful or unreasonable. See
Cascabel Cattle Co., L.L.C. v. United States, 955 F.3d 445 (5th Cir. 2020) (allegations that
government’s negligent actions during a quarantine caused harm were barred by the
quarantine exception); Rey v. United States 484 F.2d 45, 48 (5 th Cir. 1973) (claim that official
“incorrectly imposed” a quarantine and any claims of “negligence in the procedures” by
which official arrived at a decision to impose a quarantine were barred by the quarantine
exception); Saxton v. U.S., 456 F.2d 1105, 1106 (8th Cir. 1972) (“[A] claim arising out of
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any ‘quarantine’ is . . . specifically excepted from the” FTCA) (emphasis added);. See also
Formula One Motors, Ltd. v. U.S., 777 F.2d 822, 824 (2d Cir. 1985) (finding “no basis for
reading into section 2680(c) a limitation concerning the reasonableness of the [federal
official’s] conduct” because the § 2680 exemptions serve “to insulate the United States
from litigation over precisely such issues”).
2. 	Foreign Country Exception – 28 U.S.C. § 2680(k)
The United States contends Counts I (False Imprisonment of Infant A.P.D.M), II
(False Imprisonment of A.R.M.R.), IV (Negligence as to both Plaintiffs for Expulsion
while Vulnerable), and VII (Intentional Infliction of Emotional Distress as to both
Plaintiffs) are barred by the foreign country exception to the FTCA, which excludes
claims “arising in a foreign country.” 28 U.S.C. § 2680(k).
The United States relies on Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). In Sosa, the
plaintiff, a Mexican national, was abducted from Mexico to stand trial in the United States
for the torture and murder of a DEA agent in Mexico. After being acquitted, he sued the
United States under the FTCA. The Ninth Circuit allowed the claim to proceed under the
“headquarters doctrine,” which provided that the foreign country exception did not bar
suit where negligent acts in the United States proximately caused harm in a foreign
country. Id. at 701-03. The Supreme Court rejected the headquarters doctrine, holding
that “the FTCA's foreign country exception bars all claims based on any injury suffered
in a foreign country, regardless of where the tortious act or omission occurred.”
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In so holding, the Supreme Court observed that the exception reflected Congress’s
“unwilling[ness] to subject the United States to liabilities depending upon the laws of a
foreign power.” Id. at 707. The Court explained that, when the FTCA was enacted, “the
dominant principle in choice-of-law analysis for tort cases was lex loci delicti—courts
generally applied the law of the place where the injury occurred.” Id. at 705. The Court
ultimately concluded that Congress intended the phrase “arising in,” as used in § 2680(k),
to carry the same meaning it had in state choice-of-law statutes: namely, that “a claim
arises where the harm occurs.” Id. at 711.
At issue here, is where the Plaintiffs’ alleged injuries were “suffered” for the
purposes 	of 	the 	foreign 	country 	exception. 	The 	Sosa 	opinion 	identifies 	various
formulations of lex loci delecti, but it does not provide a definitive answer. See, e.g., Id. at
705 (“a cause of action sounding in tort arises in the jurisdiction where the last act
necessary 	to 	establish 	liability 	occurred; i.e., the 	jurisdiction 	in 	which 	injury 	was
received.” (quoting John W. Ester, Borrowing Statutes of Limitation & Conflict of Laws, 15 U.
Fla. L. Rev. 33, 47 (1962))); id. 706 (for torts involving bodily harm, the place of wrong is
“the place where the harmful force takes effect upon the body”). The Seventh Circuit has
not had occasion to address this specific issue, but the Ninth Circuit has concluded that,
in deciding where a claim arises under the foreign country question, the relevant question
is “where the last act necessary to establish liability occurred.” S.H. by Holt v. United States,
853 F.3d 1056, 1061 (9th Cir. 2017) (quoting Sosa, 542 U.S. at 705). In the absence of
controlling Seventh Circuit authority, the Court adopts the Ninth Circuit’s test.
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Counts I and II bring false imprisonment claims on behalf of A.P.D.M. and
A.R.M.R. alleging CBP agents unlawfully confined “A.P.D.M. following her birth and/or
discharge from the hospital and continuing through her physical expulsion from the
United States to Mexico and her extended period of expulsion in Mexico” and deprived
“A.R.M.R. of her liberty by physically expelling her from the United States to Mexico
given that she was medically compromised at the time, had a fear of physical injury,
torture, or death if expelled to Honduras,” and did not have COVID-19. (Doc. 1, pgs. 13-
14). Plaintiffs contend CBP agents lacked legal authority to expel A.P.D.M. from the
United States because she was a minor and that her expulsion was carried out against the
will of her mother. (Doc. 1, pg. 13). Plaintiffs further allege that following their expulsion,
they were “confined” to Mexico. Plaintiffs, however, do not allege that any CBP agents
took any action in Mexico that resulted in their confinement. Considering these
allegations, the Court finds that the foreign country exception does not bar Counts I and
II as the last act giving rise to liability was Plaintiffs’ expulsion, which occurred in the
United States.
In Count IV, Plaintiffs bring a negligence claim against CBP agents for expelling
them to Mexico under conditions that placed their safety at risk. Plaintiffs allege that CBP
agents “knew or should have known the grave health and safety danger facing Plaintiffs
as a postpartum mother and newborn U.S. citizen infant upon expulsion to Mexico only
days after delivery, without basic necessities or access to them, and without any support.”
The crux of Plaintiffs claim is that CBP officials breached their duty of care by expelling
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Plaintiffs from the country despite knowing their medical status. As Plaintiffs’ frame their
claim, the last act necessary to establish liability occurred in the United States, where
Plaintiffs were expelled from the Country. Accordingly, Count IV is not barred by the
foreign country exception.
Count VII alleges that “[b]y engaging in the acts described in the Complaint, the
CBP agents…engaged in extreme and outrageous conduct with an intent to cause, or with
a reckless disregard of the probability of causing, Plaintiffs to suffer severe emotional
distress.” For reasons explained above, the tortious acts alleged in Counts I, II, and IV,
arose in the United States. The remaining tortious acts alleged in Counts III, V, and VI
(expulsion of A.R.M.R. without seeking a review of fear claims, failure to return
belongings prior to expulsion, and failure to provide information about obtaining a birth
certificate) also arose in the United States. As such, the foreign country exception does
not bar Count VII.
3. 	Discretionary Function Exception – 28 U.S.C. § 2680(a)
The 	United 	States 	argues 	that 	A.R.M.R.’s claim 	in 	Count 	II 	is 	barred 	by
the FTCA's discretionary 	function 	exception. 	The 	discretionary 	function 	exception
precludes:
Any 	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, or 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.
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28 U.S.C. § 2680(a). This exception “marks the boundary between Congress' willingness
to impose tort liability upon the United States and its desire to protect certain
governmental activities from exposure to suit by private individuals,” United States v.
Varig Airlines, 467 U.S. 797, 808 (1984). It further “prevent[s] judicial second-guessing of
legislative and administrative decisions grounded in social, economic, and political
policy through the medium of an action in tort.” Loumiet v. United States, 828 F.3d 935, 941
(D.C. Cir. 2016) (internal quotation marks omitted).
For the exception to apply, the challenged conduct must satisfy two prongs. First,
the exception “covers only acts that are discretionary in nature, acts that involve an
element of judgment or choice[.]” United States v. Gaubert, 499 U.S. 315, 322 (1991). Second,
the judgment being exercised must be “of the kind that the discretionary function
exception was designed to shield.” Id. at 322-23. The exception’s purpose is to “prevent
judicial ‘second-guessing’ of legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action in tort.” Id. Thus, the
exception “protects only governmental actions and decisions based on considerations of
public policy.” Id.
The United States asserts that the exception bars A.R.M.R.'s claim in Count II,
which arises from CBP agents "physically expelling her from the United States to Mexico
given that she was medically compromised at the time, had a fear of physical injury,
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torture, or death if expelled to Honduras, and had tested negative for COVID-19 and/or
did not have COVID-19, in contravention of the [T]itle 42 Order." (Doc. 1 ¶ 68).
Plaintiffs argue the exception does not apply because CBP policy mandated "an
individualized assessment of A.R.M.R.’s medical condition before summarily expelling
her to Mexico." In support of this argument, Plaintiffs cite to CBP guidance on the
treatment of women who give birth in custody. (Doc. 26, at 18–19). This guidance,
however, was issued in August 2021, after Plaintiffs' claims arose, and is thus irrelevant
to the conduct at issue in this case.
Plaintiffs also invoke the humanitarian exception in the March 2020 Order. 14 But
this provision merely permitted agents to allow A.R.M.R. to remain in the country if,
"based on the totality of the circumstances, including consideration of significant law
enforcement, officer and public safety, humanitarian, and public health interests," they
deemed it appropriate. 85 Fed. Reg. 17060, 17061 (Mar. 26, 2020). The provision also
authorized "case-by-case, individualized exceptions." Id. Thus, while CBP agents were
permitted to allow A.R.M.R. to remain in the country after considering certain factors, they
were not required to do so. The additional statement that "DHS shall consult with CDC
concerning how these types of case-by-case, individualized exceptions shall be made"
likewise fails to eliminate discretion. As the Supreme Court has explained, a policy
14 Plaintiffs cite to the CAPIO-1 Memo, but this memorandum did not include a humanitarian exception.
They also cite to the CAPIO-2 Memo, but this memorandum was issued after Plaintiffs’ claims arose.
However, the referenced language establishing a humanitarian exception was included in the March 2020
Order. Accordingly, in analyzing this argument, the Court relies on the humanitarian exception contained
in the March 2020 Order.
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mandates a specific course of action, and thus defeats the exception, only where it
"specifically prescribes a course of action" and leaves the employee "no rightful option
but to adhere to that directive." Berkovitz v. United States, 486 U.S. 531, 536 (1988). Here,
despite some mandatory language, the challenged conduct involved an “element of
judgment or choice”; agents had to weigh relevant policy considerations to determine
whether the “totality of the circumstances” warranted a humanitarian exception, and the
March 2020 Order did not prescribe how that decision must be made. Id. See also Sabow v.
United States, 93 F.3d 1445, 1453 (9th Cir. 1996) (“[T]he presence of a few, isolated
provisions cast in mandatory language does not transform an otherwise suggestive set of
guidelines into binding agency regulations.”); Ochran v. United States, 117 F.3d 495, 500
(11th Cir. 1997) (holding that the word "shall" in U.S. Attorney General Guidelines did
not remove discretion because it failed to specify how to implement the action); Powers v.
United States, 996 F.2d 1121, 1125 (11th Cir. 1993) (applying the exception where a statute
provided that the FEMA director "shall from time to time take such action as may be
necessary."). Thus, the humanitarian exception underscores the March 2020 Order’s
discretionary nature, as it granted agents latitude to balance competing interests without
a 	rigid, 	enforceable 	mandate. 	Additionally, 	as 	the 	Government 	notes, 	the 	CDC
consultation language directs DHS to work with the CDC on general procedures for
evaluating case-by-case exceptions to expulsion, rather than requiring consultation with
the CDC for each individual case.
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In summary, A.R.M.R. was detained and expelled under the March 2020 Order
and the accompanying CAPIO-1 guidance. The Order's limited exceptions did not apply
to her. 15 Although CAPIO-1 provided that "[i]njured aliens" were not amenable to
expulsion, neither it nor the March 2020 Order prescribed a specific procedure for
identifying an “injured alien.” Similarly, neither document included requirements or
criteria for evaluating an individual’s COVID-19 status.
The Convention Against Torture provision in CAPIO-1 also preserves discretion.
Preliminarily, it applied only to aliens asserting such claims about the country of return.
A.R.M.R. raised fears about Honduras, but she was expelled to Mexico. More critically,
the 	provision 	covered 	only 	“affirmative 	spontaneous 	and 	reasonably 	believable
claim[s].” (Exhibit 1, CAPIO-1 Memo, pg. 4). The memo offered no guidance on assessing
whether a claim was “reasonably believable.” Thus, determinations about whether an
individual should be expelled, including whether an individual qualified as an “injured
alien” or had asserted a credibly exempting fear, inherently involved judgment and
choice.
The Court further finds that the subject decisions, whether A.R.M.R. was exempt
from the March 2020 Order due to injury, a “reasonably believable” fear claim, or other
humanitarian factors, were “based on considerations of public policy.” Berkovitz, 486 U.S.
15 I.e. “U.S. citizens, lawful permanent residents, and their spouses and children; members of the armed
forces of the United States, and associated personnel, and their spouses and children; persons from foreign
countries who hold valid travel documents and arrive at a POE; or persons from foreign countries in the
visa waiver program who are not otherwise subject to travel restrictions and arrive at a POE.” 85 FR 17060,
17061.
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at 536. Expelling A.R.M.R. despite her condition implicated humanitarian concerns but
permitting her to remain raised countervailing public health risks amid a pandemic.
Given that CBP agents had discretion to balance these competing interests, it “must be
presumed that [their] acts [were] grounded in policy when exercising that discretion.”
Gaubert 499 U.S. at 324.
4. 	Detention of Goods Exception – 28 U.S.C. § 2680(c)
In Count V, A.R.M.R. brings a claim for negligence, alleging that CBP agents are
liable for taking her belongings, including her Honduran-issued identity card, and for
failing to return the identity card prior to her expulsion. (See Doc. 1 at ¶ ¶ 50, 87). The
United States contends this claim is barred by the “detention of goods” exception. This
exception 	forecloses 	FTCA 	claims 	arising 	from 	“the detention of 	any goods,
merchandise, or other property by any officer of customs ... or any other law enforcement
officer.” 16 28 U.S.C. § 2680(c), Kosak v. United States, 465 U.S. 848, 854 (1984).
In 2000, Congress passed the Civil Asset Forfeiture Reform Act (“CAFRA”), which
amended § 2680(c) and created an “exception to the exception.” Ali v. Federal Bureau of
Prisons, 552 U.S. 214, 221, 239 (2008). This provision “re-waived” the government’s
immunity by allowing suits for claims arising from the detention of property by law
enforcement “if the property was seized for the purpose of forfeiture.” 18 U.S.C. §
2680(c)(1); Ali, 552 U.S. at 221.
16 There is no dispute the CBP officers in this case are “law enforcement officers” within the meaning of §
2680(c). See, e.g., Gasho v. United States, 39 F.3d 1420, 1433; Ali, 552 U.S. at 218-222.
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CAFRA’s re-waiver provision, was created “in response to the overly enthusiastic
pursuit of civil and criminal forfeiture.” Diaz v. United States, 517 F.3d 608, 613 (2d
Cir.2008). Thus, the “seizure of property pursuant to a criminal investigation was not the
problem Congress was seeking to address.” (emphasis supplied). Smoke Shop, LLC v.
United States, 761 F.3d 779, 784 (7th Cir. 2014). Instead, “Congress was predominantly
concerned with making property owners whole where the government unsuccessfully
brings a forfeiture action and damages or loses the seized property while the action is
pending.”). See also Id. (noting that “the House Judiciary Committee described CAFRA's
proposed changes to the FTCA as allowing ‘property owners who prevail in forfeiture
actions [to] sue the government for any negligent destruction or damage to the property.’
”) (citing H.R.Rep. No. 105-358, at 49).
CAFRA's exception applies only when the following four conditions have been met:
(1) 	the 	property 	was 	seized 	for 	the 	purpose 	of forfeiture under 	any
provision of Federal law providing for the forfeiture of property other than
as a sentence imposed upon conviction of a criminal offense;
(2) the interest of the claimant was not forfeited;
(3) the interest of the claimant was not remitted or mitigated (if the property
was subject to forfeiture); and
(4) the claimant was not convicted of a crime for which the interest of the
claimant 	in 	the 	property 	was 	subject 	to forfeiture under 	a 	Federal
criminal forfeiture law.
28 U.S.C. § 2680(c).
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The Seventh Circuit has held that CARFRA’s re-waiver provision applies only to
property seized solely for the purpose of forfeiture. Smoke Shop, LLC v. United States, 761
F.3d 779 (7th Cir. 2014) (adopting the sole-purpose test and the reasoning set forth in Foster
v. United States, 522 F.3d 1071 (9th Cir.2008)). In Smoke Shop, the Drug Enforcement
Administration seized smokable “incense products” containing synthetic cannabinoids
from a tobacco retailer, asserting they were prohibited under federal drug laws. 761 F.3d
at 780. The district court granted the Government’s motion to dismiss finding that the
government enjoyed sovereign immunity under the detained-goods exception to the
FTCA. Id.
In affirming the dismissal, the Appellate Court explained that, although the facts
alleged in the Complaint were accepted as true, the Complaint did not plausibly allege
that the tobacco retailer’s claim fell under CAFRA’s re-waiver provision. The Court
disregarded the allegation that the DEA seized the property for the purpose of forfeiture,
explaining that such an allegation “is the type of legal conclusion not entitled to [the]
presumption of truth.” Id. at 785. Next, the Court explained that the facts alleged in the
complaint gave rise to “an obvious alternative explanation” for the seizure:
that the DEA seized Smoke Shop's inventory in connection with its
investigation of a possible drug crime. DEA agents raided the store with
local law enforcement officers in tow. The agents did not have a search
warrant, but they didn't need one, as [the owner] consented to the search
and seizure of his inventory. All along, the DEA maintained that it was
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testing the products to see if they contained an illegal substance under
federal drug laws. And sure enough, tests revealed that the products did
contain substances that the government considered illegal under the
Controlled Substances Analogue Act.
(Id. at 785).
The reasoning in Smoke Shop, controls here. As in Smoke Shop, Plaintiffs’ allegations
do not bring this claim within CAFRA’s narrow “re-waiver” of sovereign immunity. The
Complaint does not plausibly allege that A.R.M.R.’s property was seized for the purpose
of forfeiture. Additionally, the facts alleged provide an “obvious alternative explanation”
for the seizure which precludes application of CAFRA’s forfeiture exception.
First, CAFRA’s limited waiver applies only when the property “was seized for the
purpose of forfeiture under any provision of Federal law.” 28 U.S.C. § 2680(c)(1). Merely
alleging that property was taken and not returned does not satisfy that requirement. A
failure to return property does not transform a seizure into one “for the purpose of
forfeiture,” nor does it establish that any forfeiture proceeding under a federal statute
was ever contemplated or initiated.
Second, Plaintiffs cannot avoid dismissal by asserting in their response that the
property “was seized for the purpose of forfeiture.” The Complaint itself contains no such
allegation, and a plaintiff “may not amend the complaint by briefs in opposition to a
motion to dismiss.” Thomason v. Nachtrieb, 888 F.2d 1202, 1205 (7th Cir. 1989). In any event,
a statement that the property was seized “for the purpose of forfeiture” is precisely the
type of legal conclusion that the court in Smoke Shop held is “not entitled to [a]
presumption of truth.” 761 F.3d at 785.
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Third, even if the Complaint had included such an allegation, dismissal would still
be warranted. Under the Smoke Shop “sole purpose” test, the plaintiff must plausibly
allege that forfeiture under a federal statute was the exclusive purpose of the seizure. It
is not enough that forfeiture was a possibility, that it was later considered, or even that it
might have been one of several objectives. Id. at 784 (adopting Foster v. United States, 522
F.3d 1071, 1079 (9th Cir. 2008)). Allowing CAFRA’s waiver to apply whenever an officer
merely “envisioned the possibility” of forfeiture would “eviscerate the FTCA’s detained-
goods exception in the context of criminal investigations,” because forfeiture is nearly
always a foreseeable outcome. Id.
Finally, and most importantly, the Complaint alleges facts that identify an obvious
alternative explanation for the seizure. Plaintiffs allege that A.R.M.R.’s belongings were
seized when she was detained and expelled pursuant to the March 2020 Order governing
the expulsion of noncitizens who entered the United States unlawfully. Thus, as alleged
in the Complaint, the seizure of A.R.M.R.’s belongings occurred in connection with CBP’s
enforcement of the March 2020 Order. More specifically, the subject property was seized
in connection with CBP’s investigation as to whether A.R.M.R. had entered the country
lawfully and, if applicable, to effectuate her expulsion under the March 2020 Order. That
investigative and administrative purpose defeats any plausible inference that the
property was seized solely for the purpose of forfeiture.
In short, as in Smoke Shop, the allegations of the Complaint foreclose the
application of CAFRA’s “forfeiture” exception to the FTCA’s detention-of-goods bar.
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Because the Complaint does not (and cannot) allege that A.R.M.R.’s property was seized
solely for the purpose of forfeiture under a federal statute, her negligence claim (Count V)
is barred by 28 U.S.C. § 2680(c).
5. 	Misrepresentation Exception – 28 U.S.C. § 2680(h)
The United States contends that Plaintiffs’ claim in Count VI (negligence claim
alleging failure to provide Plaintiffs with information about obtaining a U.S. birth
certificate) is barred by the misrepresentation or deceit exception found in 28 U.S.C. §
2680(h). Additionally, the Government contends this exception bars claims brought on
A.P.D.M.’s behalf in Counts I (false imprisonment), IV (negligence claim alleging
expulsion to a location or in a condition placing A.P.D.M. at risk), and VII (intentional
infliction of emotional distress).
The FTCA's waiver of sovereign immunity does not extend to “[a]ny claim arising
out of ... misrepresentation [or] deceit.” 28 U.S.C. § 2680(h). 	The exception bars both
negligent and intentional misrepresentations, as well as affirmative acts and omissions of
material fact. Nixon v. United States, 916 F. Supp. 2d 855, 859 (N.D. Ill. 2013) (citing
Metropolitan Life Ins. Co. v. Atkins, 225 F.3d 510, 512 (5 th Cir. 2000). To determine whether
a claim falls under the misrepresentation exception, courts “must ‘look to the essential act
that spawned the damages,’ not to ‘the manner in which a plaintiff chooses to plead her
claim[.]’” Id. (quoting Metro. Life Ins. Co. v. Atkins, 225 F.3d 510, 512 (5th Cir. 2000)).
Additionally, 	courts 	must 	examine 	whether 	the 	injuries 	resulted 	from 	the
communication of information or the performance of operational tasks. See Redmond v.
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United States, 518 F.2d 811, 816 (7th Cir.1975); Mundy v. United States, 983 F.2d 950, 952
(9th Cir. 1993). “Where the gravamen of the complaint is the negligent performance
of operational tasks, rather than misrepresentation, the government may not rely upon §
2680(h) to absolve itself of liability.” Redmond, 518 F.2d at 816 quoting Ingham v. Eastern
Air Lines, Inc., 373 F.2d 227, 239 (2d Cir.1967). Finally, where “the government’s
misstatements are not essential to [the claim],” the exception does not apply. Block v. Neal,
460 U.S. 289, 297 (1961). See also Schneider v. United States, 936 F.2d 956, 961 (7th Cir. 1992).
As a preliminary matter, the Court rejects Plaintiffs’ contention that the exception
is limited to “claims based on the duty to use care to communicate information to prevent
economic loss.” (Doc. 26, pg. 22). Though the Seventh Circuit does not appear to have
directly addressed the issue, other circuits have rejected such a contention. For example,
in Kim v. United States, 940 F.3d 484 (9th Cir. 2019), the Ninth Circuit Court of Appeals
rejected the argument that the exception was limited to those “seeking to recover for
economic loss suffered as a result of a commercial decision” Id. at 492. In so holding, the
Ninth Circuit explained that, although some courts have observed the exception has
traditionally been applied to financial or commercial misrepresentations, see e.g., Block v.
Neal, 460 U.S. 289, 296 n.5 (1983), “such cases do not hold that the exception cannot apply
in other contexts.” Id. See also see also Reynolds v. United States, 643 F.2d 707, 712 (10th Cir.
1981) (“[t]he 	‘misrepresentation’ 	exception 	of 28 	U.S.C. 	s 2680(h) has 	been 	broadly
construed to include false representations of any type.”). Moreover, on at least one
occasion, the Seventh Circuit has – in an unpublished opinion – affirmed dismissal of a
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non-economic claim based on the misrepresentation exception. See Omegbu v. United
States, 475 F. App'x 628 (7th Cir. 2012) (claim that officials “deliberately falsified
information” in plaintiff’s immigration file, resulting in denial of his naturalization
application, 	was 	“precisely 	the 	kind 	barred 	by 	the 	FTCA’s 	exception 	for
misrepresentation and deceit.”).
Next, Plaintiffs contend that the exception is inapplicable because Plaintiffs’ claims
arise from “CMP’s negligent performance of its operational tasks” regarding the
provision of information for obtaining U.S. birth records. (Doc. 26 ¶¶ 21-22). To support
this argument, Plaintiffs cite to a CBP policy statement. (Id) (citing Children Born in CBP
Custody, Doc. 1 ¶ 28 N. 21-23). But the policy lists an “effective date” of May 24, 2022.
Even assuming the policy has the impact Plaintiffs allege, it cannot apply to claims that
arose approximately two years earlier. Having resolved these preliminary arguments, the
Court turns to the specific counts.
The Court finds that Count VI is barred by the misrepresentation exception. In this
count, Plaintiffs allege negligence based on CBP agents’ failure to provide A.R.M.R. with
information on how to obtain a birth certificate for A.P.D.M., including underlying false
statements that A.R.M.R. could not register A.P.D.M.’s citizenship at that time, that
A.P.D.M. could not return to the United States until A.P.D.M. was 18, and that only
A.P.D.M. could register her own citizenship. Plaintiffs allege the agents knew or should
have known that these statements were false. Here, the essential act causing the alleged
damages is the communication of false information and the omission of accurate material
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facts regarding citizenship and birth certificate procedures. The claim arises out of
negligent or intentional misrepresentation because the alleged harm flows directly from
officials providing false information essential to navigating A.P.D.M.’s status as a citizen
of the United States. As such, it is barred by the exception.
By contrast, the Court finds that Plaintiffs’ claims in Counts I, IV, and VII are not
barred by the misrepresentation exception. In Count I, alleging false imprisonment of
A.P.D.M., the essential act is the CBP agents’ unlawful physical confinement and
expulsion 	of 	a 	U.S. 	citizen 	without 	authority 	or 	consent. 	This 	wrong 	occurred
independently 	of 	any 	communicative 	failures; 	the 	allegedly 	false 	statements 	are
incidental and not essential to the harm, which would exist regardless of reliance on those
misrepresentations. Count IV’s negligence claim centers on the execution of the expulsion
in a manner that risked Plaintiffs’ health and safety, with any misstatements being merely
collateral. Count VII, for intentional infliction of emotional distress, encompasses the
totality of the agents’ acts in confinement and expulsion, causing severe emotional
distress independent of any alleged misrepresentations. As such, Counts I, IV, and VII
survive the exception.
B. Failure to State a Claim
The 	Government 	presents 	three 	additional 	grounds 	for 	dismissal: 	(1) 	The
Complaint fails to state a claim under Texas law for false imprisonment (Counts I and II);
the Complaint fails to state a claim for failure to refer A.R.M.R. to USCIS for a fear of
persecution or torture screening (Count III); and (3) Counts II and III, which allege
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violations of federal law, must be dismissed because there is no private person analogue
for the alleged violations.
Given the Court’s finding that each of Plaintiffs’ claims is barred by one or more
of the exceptions to the waiver of sovereign immunity outlined in 28 U.S.C. § 2680, the
Court need not address the Government’s remaining arguments.
VI,. 	C ONCLUSION
Based on the analysis set forth herein, the Court finds that Counts I through VII
are barred by the quarantine exception to the Federal Tort Claims Act; Count II is barred
by the discretionary function exception to the Federal Tort Claims Act; Count V is barred
by the detention of goods exception to the Federal Tort Claims Act; and Count VI is
barred by the misrepresentation or deceit exception to the Federal Tort Claims Act.
Therefore, the Court GRANTS the United States’ Motion to Dismiss pursuant to Rule
12(b)(6) for failure to state a claim. Because all of Plaintiffs’ claims arise out of conduct
that is exempted from redress under the Federal Tort Claims Act and amendment would
be futile, the Complaint is dismissed with prejudice. The Court DIRECTS the Clerk to
close the case and to enter judgment accordingly.
IT IS SO ORDERED.
Dated: December 3, 2025
______________________________
DAVID W. DUGAN
United States District Judge
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