Bano et al v. City of New York et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MUSSARAT BANO AND BASHIR RAHEE,
Plaintiffs,
-against-
UNITED STATES OF AMERICA; THE CITY OF NEW
YORK; NEW YORK CITY ADMINISTRATION FOR
CHILDREN’S SERVICES COMMISSIONER JESS
DANNHAUSER, in his official capacity; NEW YORK
CITY ADMINISTRATION FOR CHILDREN’S
SERVICES CASEWORKER NICOLE RAMIREZ, in
her individual and official capacity; LITTLE FLOWER
CHILDREN AND FAMILY SERVICES CHIEF
EXECUTIVE OFFICER CORINNE HAMMONS, in her
official capacity; LITTLE FLOWER CHILDREN’S
SERVICES CASE PLANNER RENEE
HARTLEYSAMMS, in her individual capacity,
Defendants.
MEMORANDUM
AND ORDER
Case No. 1:23-cv-
4773 (FB) (MMH)
For the Plaintiff:
JULIA HERNANDEZ
TAREK ZIAD ISMAIL
CUNY School of Law
2 Court Square
Long Island City, NY 11101
For Defendant U.S.A.:
MARIKA M. LYONS
U.S. Attorney’s Office, E.D.N.Y.
271 Cadman Plaza East
Brooklyn, New York 11201
For the N.Y.C. Defendants:
DARIAN ALEXANDER
PHILIP S. FRANK
TONYA JENERETTE
New York City Law Department
100 Church Street
New York, New York 10007
BLOCK, Senior District Judge:
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The United States moves for reconsideration of the Court’s memorandum
and order denying its motion to dismiss. For the reasons that follow, the United
States’s motion is DENIED.
The Court recounted the facts of this case at length in its previous
memorandum and order. Bano v. United States, 788 F. Supp. 3d 408, 413–14
(E.D.N.Y. 2025). The Court assumes the parties are familiar with these facts and
the parties have not notified the Court of any new developments. Accordingly, the
Court will not restate a general background but will discuss facts relevant to its
analysis as needed.
I.
The government moves for reconsideration for three reasons: (1) the Court
erred in concluding that the foreign country exception to the Federal Tort Claims
Act (“FTCA”) did not apply; (2) the Court erred in concluding that the due care
exception to the FTCA did not apply; and (3) the court erred in concluding that
plaintiffs had properly stated a claim for negligence and intentional infliction of
emotional distress (“IIED”).
Reconsideration “is an extraordinary remedy to be employed sparingly in the
interests of finality and conservation of scarce judicial resources.” In re Health
Mgmt. Sys., Inc. Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000). The Second
Circuit has explained that “Rule 59 is not a vehicle for relitigating old issues,
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presenting the case under new theories, securing a rehearing on the merits, or
otherwise taking a ‘second bite at the apple’ . . . .” Sequa Corp. v. GBJ Corp., 156
F.3d 136, 144 (2d Cir. 1998). Instead, “a party may move for reconsideration and
obtain relief only when the defendant identifies an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear error
or prevent manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL
Irrevocable Tr., 729 F.3d 99, 108 (2d Cir. 2013).
a. Foreign Country Exception
Concerning its first ground for reconsideration, the government argues that
the foreign country exception should apply because all the allegedly tortious
conduct occurred in Pakistan. But the government fully argued this point in its
motion to dismiss and at oral arguments. The Court concluded that the plaintiffs
had plausibly alleged tortious acts in the United States and therefore the foreign
country exception does not apply. Bano, 788 F.Supp.3d at 419. The government
may disagree with this conclusion, but it fails to identify any legal basis for
reconsideration, such as an intervening change in controlling law, new evidence, a
clear error, or manifest injustice. Accordingly, the Court will not reconsider its
conclusions as to the foreign country exception.
b. Due Care Exception
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Concerning its second ground for reconsideration, the government argues
that the due care exception to the FTCA should apply because the government
officials were following a course of action prescribed by statute or regulation when
they committed the alleged torts. Although Plaintiffs may be correct that the
government is essentially presenting their case under a new theory, the Court will
nonetheless address the issue because it raises a question of the Court’s subject
matter jurisdiction. Henderson v. Shinseki, 562 U.S. 428, 434, 131 S. Ct. 1197,
1202 (2011) (“Objections to subject-matter jurisdiction, however, may be raised at
any time.”). Doing so requires some factual background.
Plaintiffs’ daughter F.B., a U.S. citizen, was in Pakistan when she reached
out to U.S. consular officials requesting assistance returning to the United States,
alleging that her family was abusing her and preventing her from returning to the
United States. Bano, 788 F.Supp.3d at 413–14. She fled her family on June 23,
2020, and, with the help of consular officials, boarded a flight and arrived in the
United States on June 26. Id. at 414. On June 29, the government informed the
Plaintiffs that F.B. had left Pakistan and was safe. Id. at 415. Thus, for six days,
Plaintiffs had no information about their daughter, and even after that point, they
still did not know precisely where she was. On July 2, the government wrote to
F.B., asking her to either send a message to her parents letting them know she was
back in the United States and safe, or to sign a Privacy Act waiver permitting the
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government to do so. Id. at 415. F.B. refused, wishing her parents to continue
thinking she was in Pakistan. Id. It was not until July 20 that Plaintiffs learned
from New York State police that F.B. was back in New York. Id.
28 U.S.C. § 2680(a) provides that the government’s waiver of sovereign
immunity under the FTCA does not apply to “[a]ny 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[.]” This
is known as the due care exception, and it is separate from the discretionary
function exception which this Court considered and rejected in its prior Order.
Crumpton v. Stone, 59 F.3d 1400, 1403 (D.C. Cir. 1995); Bano, 788 F.Supp.3d at
419. The Second Circuit has not announced a test for applying the due care
exception, but district courts in this circuit have followed the test laid out by other
circuits. E.g. Clayton v. United States, No. 18 CV 5867 (MKB)(LB), 2019 WL
9283977, at *12 (E.D.N.Y. Aug. 1, 2019), report and recommendation adopted,
No. 18CV5867MKBLB, 2020 WL 1545542 (E.D.N.Y. Mar. 31, 2020).
First, we determine whether the statute or regulation in question
specifically pr[e]scribes a course of action for an officer to follow.
Second, if a specific action is mandated, we inquire as to whether the
officer exercised due care in following the dictates of that statute or
regulation. If due care was exercised, sovereign immunity has not been
waived.
Welch v. United States, 409 F.3d 646, 652 (4th Cir. 2005).
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To satisfy the first part, the statute or regulation in question must require a
certain course of conduct. Id. A showing of discretion defeats the due care
exception (and is more properly analyzed under the discretionary function
exception). See id. For example, in Welch, the Fourth Circuit concluded that the
government officials in question “had no discretion in their actions” and that “[t]he
decision . . . was statutorily required, thus satisfying the first requirement of the
due care exception.” Id. Concerning the due care requirement, the Second Circuit
has explained that “due care implies at least some minimal concern for the rights of
others.” Nwozuzu v. United States, 712 F. App’x 31, 32 (2d Cir. 2017) (summary
order).
The government contends that Plaintiffs seek liability for IIED and
negligence based on the government’s failure to disclose F.B.’s location, but the
due care exception shields this conduct. The government specifically argues that
the due care exception applies because 5 U.S.C. § 552a of the Privacy Act
prohibited it from disclosing F.B.’s location without her permission, which she
refused. Thus, the government argues it was following a prescribed course of
conduct.
The government fails to satisfy the first part of the due care exception test
because it has not established that the officials’ course of conduct was required.
Section 552a(b) provides that an agency shall not disclose any record without the
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prior written consent of the individual to whom the record pertains. Section
552a(h), however, provides that “the parent of any minor . . . may act on behalf of
the individual.” (Emphasis added). The government acknowledges that section
552a(h) is “discretionary” and that “it was at least authorized, if not mandated, for
the consular officers to withhold information.” The Court agrees in part: the
Privacy Act permitted it to withhold certain information concerning F.B., but it did
not require this. Because section 552a(h) permits a parent to act on behalf of a
minor for purposes of the Privacy Act, the government also would have been
permitted to disclose certain information concerning F.B. to the Plaintiffs. Even if
the government genuinely believed the Privacy Act barred it from informing the
Plaintiffs of F.B.’s precise location, it did eventually inform the Plaintiffs that F.B.
had left Pakistan and was safe. In doing so, the government concedes that it did not
believe the Privacy Act prevented it from sharing any information whatsoever. In
sum: the government had discretion to share information with the Plaintiffs and the
Privacy Act did not mandate its course of action. Accordingly, the due care
exception does not apply, and the Court need not consider whether the government
acted with due care.
c. Failure to State a Claim
For its final ground for reconsideration, the government contends that
Plaintiffs have not stated a claim because the decision to not disclose F.B.’s
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location cannot form the basis for a claim of negligence or IIED. The Court,
however, addressed the government’s arguments on this point in its prior Order
denying its 12(b)(6) motion. The government fails to establish any legal basis for
reconsideration and instead merely seeks to relitigate the merits of its 12(b)(6)
motion. Accordingly, the Court denies the government’s motion for
reconsideration.
II.
For the foregoing reasons, the United States’s motion for reconsideration is
DENIED.
SO ORDERED.
_/S/ Frederic Block_________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
December 11, 2025
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