Makowski v. Holder et al
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 3/18/2014. Mailed notice(ef, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES AZIZ MAKOWSKI,
Plaintiff,
v.
UNITED STATES OF AMERICA;
FEDERAL BUREAU OF
INVESTIGATION (FBI); and
DEPARTMENT OF HOMELAND
SECURITY (DHS),
Defendants.
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No. 12 C 5265
Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
After Plaintiff James Aziz Makowski, a U.S. citizen, was arrested on July 7, 2010, an
immigration detainer was issued against him. When Makowski pleaded guilty to a drug offense,
the detainer caused him to be transferred to a maximum security prison rather than the boot camp
for which he would otherwise have been eligible, and he spent approximately seventy days in
custody before the detainer was canceled and he was allowed to complete the boot camp and
secure his release. Makowski has sued the Federal Bureau of Investigation (“FBI”) and the
Department of Homeland Security (“DHS”), for violations of the Privacy Act, 5 U.S.C.
§§ 552a(b), a(g)(1)(C), and (e)(5), and he has sued the United States for false imprisonment and
negligence under the Federal Tort Claims Act (“FTCA”), 18 U.S.C. §§ 2671 et seq. He seeks
monetary damages as well as declaratory and injunctive relief. The government moves to
dismiss Makowski’s First Amended Complaint in its entirety pursuant to Federal Rule of Civil
Procedure 12(b)(6). For the reasons that follow, the motion is granted in part and denied in part.
I. FACTS
Makowski was born in 1987 in India. He was adopted by U.S. citizens when he was one
year old. He entered the United States on an IR4 visa, which is reserved for orphans adopted by
U.S. citizens, and he became a U.S. citizen soon after his arrival. In 1989, the Immigration and
Naturalization Service (“INS”)—which is now DHS—issued Makowski a certificate of
citizenship which included his alien registration number.
Later that year, INS provided
Makowski’s parents with written verification of his U.S. citizenship status. Makowski has lived
in the United States since arriving as an infant and has had a U.S. passport since an early age.
He served in the U.S. Marines from 2004 to 2006. As part of the Marines’ application process,
he underwent an FBI background check.
In October 2009, Makowski was arrested in DuPage County, Illinois. When his father
posted bond, Makowski was told that he could not be released because Immigration and Customs
Enforcement (“ICE”), a component of DHS, had issued an immigration detainer against him.
While in custody, Makowski explained to a person he believed to be an ICE officer that he was a
U.S. citizen. The detainer was subsequently lifted, and he was released on bail.
Makowski was arrested again in DuPage County on July 7, 2010. The DuPage County
Sheriff’s office took his fingerprints and submitted them to the FBI for a background check.
Pursuant to the FBI’s participation in the immigration enforcement program “Secure
Communities,” also known as “Interoperability,” the FBI transmitted Makowski’s fingerprints to
DHS’s Automated Biometric Identification System (“IDENT”) database for an immigration
background check. In response, DHS indicated to the FBI that IDENT did not contain a “match”
for Makowski’s fingerprints, but it listed Makowski’s place of birth as “India.” Based on this
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response, the FBI transmitted Makowski’s fingerprints and criminal record to the ICE Law
Enforcement Support Center (LESC) for follow-up immigration enforcement.
Makowski attached the ICE Secure Communities Standard Operating Procedures to his
complaint as Exhibit A. As initially implemented, the FBI forwarded fingerprints and records to
ICE’s LESC only if the IDENT query returned a “match,” indicating that the fingerprints
belonged to an individual DHS had identified as a high priority subject. (First Am. Compl.
¶¶ 20, 25, ECF No. 45; Ex. A (Standard Operating Procedures) § 2.1, ECF No. 45-1.) But the
FBI disclosed Makowski’s fingerprints and records to LESC in spite of the “no match” response
from DHS pursuant to a 2008 policy change whereby the FBI began to automatically forward to
LESC fingerprints that generated a “no match” in the IDENT database if DHS’s response also
indicated that the individual was born outside of the United States. (Id. at ¶ 25.) Makowski
attached meeting minutes detailing this policy change to his complaint. (First Am. Compl. Ex. H
(Oct. 22, 2008 Staff Paper), ECF No. 45-8.)
On July 8, 2010, a day after Makowski was arrested in DuPage County for the second
time, the ICE Chicago Field Office issued an I-247 immigration detainer against him. The
detainer included his alien registration number and incorrectly listed his nationality as Indian,
reflecting the fact that “INS and now DHS [had] not properly updated his records in over 20
years to accurately reflect that [he] is a citizen of the U.S.” (First Am. Compl. ¶ 38.) On
December 6, 2010, Makowski pleaded guilty to a drug offense and received a seven-year prison
sentence. He did so under the impression that he would be allowed to participate in a 120-day
boot camp in lieu of serving the seven-year sentence. (Id. at ¶ 43.) Makowski was transferred to
the Stateville Correctional Center for processing into boot camp.
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During processing, Makowski met with an ICE officer. He provided the ICE officer with
copies of his U.S. passport and social security card. The ICE officer inspected and copied these
materials. (Id. at ¶ 45.) Soon after processing, Makowski learned that he was ineligible for the
boot camp because of the immigration detainer, and he was transferred to Pontiac Correctional
Center to serve the seven-year prison sentence. (Id. at ¶ 46.)
With the assistance of an attorney, Makowski’s father had the detainer canceled on
January 25, 2011, and Makowski was transferred to be processed into the boot camp program on
February 9, 2011. (Id. at ¶ 48.) He completed the boot camp program and was released on July
20, 2011.
(Id. at ¶ 49.)
In September 2011, Makowski began working as a network
administrator. (Id.) He alleges that, were it not for the wrongful detainer issued on July 8, 2010,
he would have completed boot camp by mid-May 2011 and would have sought employment and
begun working prior to September 2011. (Id.)
Based on these allegations, Makowski brings claims against the FBI for improperly
disclosing his fingerprints and records to DHS, in violation of the Privacy Act, 5 U.S.C. §
552a(b) (Count I). He seeks injunctive and declaratory relief based on this violation (Count V).
He brings a claim against DHS for failing to properly maintain its records reflecting his
citizenship, in violation of the Privacy Act, 5 U.S.C. §§ 552a(g)(1)(C) & (e)(5) (Count II), and
seeks injunctive and declaratory relief based on this violation (Count VI). He brings separate
claims against the United States under the FTCA for false imprisonment (Count III) and
negligence (Count IV).
II. LEGAL STANDARD
To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must “state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
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Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies this pleading standard when its
factual allegations “raise a right to relief above the speculative level.” Twombly, 550 U.S. at
555-56; see also Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) (“[P]laintiff must
give enough details about the subject-matter of the case to present a story that holds together.”).
For purposes of the motion to dismiss, the court takes all facts alleged by the claimant as true and
draws all reasonable inferences from those facts in the claimant’s favor, although conclusory
allegations that merely recite the elements of a claim are not entitled to this presumption of truth.
Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011). A plaintiff may plead himself “‘out of
court when it would be necessary to contradict the complaint in order to prevail on the merits.’”
Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008) (quoting Kolupa v. Roselle Park
Dist., 438 F.3d 713, 715 (7th Cir. 2006)).
III. ANALYSIS
A. Privacy Act Claims Against the FBI (Counts I and V)
According to Makowski, the FBI’s disclosure of his fingerprints to DHS’s IDENT
database and the subsequent transmission of his fingerprints and criminal record to ICE’s LESC
violated his rights under the Privacy Act. The Privacy Act provides that “[n]o agency shall
disclose any record which is contained in a system of records by any means of communication to
any person, or to another agency, except pursuant to a written request by, or with the prior
written consent of, the individual to whom the record pertains.” 5 U.S.C. § 552a(b).
It is undisputed that Maskowski did not consent to the disclosure of his records. The
government contends, however, that the FBI’s disclosures of Makowski’s fingerprints and
criminal record fall under the Privacy Act’s “routine use” exception, § 552a(b)(3), and therefore
were not barred by the Privacy Act. Within the meaning of the Privacy Act, a “routine use” is
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“the use of such record for a purpose which is compatible with the purpose for which it was
collected.” § 552a(a)(7). Agencies are required to publish in the Federal Register information
about the systems of records they maintain, including “each routine use of the records contained
in the system, including the categories of users and the purpose of such use.” § 552a(e)(4)(D).
Thus, the FBI’s transmissions of Makowski’s fingerprints and criminal record to IDENT and
ICE’s LESC are exempted from the Privacy Act’s bar on disclosures only if (1) the disclosure
was made pursuant to a published routine use and (2) the use of the records was compatible with
the purpose for which they were collected.
1. The Publication Requirement
The Government argues that Blanket Routine Use 6 (“BRU 6”), which the FBI has
published in the Federal Register, 66 Fed. Reg. 33,559 (June 22, 2001), justifies the FBI’s
disclosures. BRU 6, which applies to every FBI system of records, permits disclosure “[t]o such
recipients and under such circumstances and procedures as are mandated by Federal statute or
treaty.” Id. The Government contends, and Makowski states in his complaint, that the FBI
disclosed the fingerprints and criminal record pursuant to the Enhanced Border Security and Visa
Entry Reform Act of 2002 (the “Enhanced Border Security Act”), 8 U.S.C. § 1722(a)(2). The
relevant inquiry regarding the publication requirement of the “routine use” exception is therefore
whether the Enhanced Border Security Act mandated the disclosures made by the FBI.
Following the September 11, 2001 terrorist attacks in the United States, Congress enacted
the Enhanced Border Security Act to “provide law enforcement more information about
potentially dangerous foreign nationals” and “update technology to meet the demands of the
modern war against terror.” 147 Cong. Rec. S12247-05, 2001 WL 1521845 (Nov. 30, 2001)
(statement of Sen. Feinstein). The pertinent portion of the statute requires the President to
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“develop and implement an interoperable electronic data system to provide current and
immediate access to information in databases of Federal law enforcement agencies and the
intelligence community that is relevant to determine whether to issue a visa or to determine the
admissibility or deportability of an alien.” 8 U.S.C. § 1722(a)(2).
The government argues that “[t]o comply with section 1722’s mandate, the FBI must
forward to DHS all the fingerprint records it receives as a result of an arrest.” (Defs.’ Mot. to
Dismiss 23, ECF No. 57-1.) In its view, the FBI has no way of knowing whether the fingerprints
it receives from a local law enforcement agency belong to a citizen or alien until DHS runs a
query in IDENT. Therefore, according to the government, “at the time of receipt following an
arrest, all the fingerprints the FBI receives are potentially ‘relevant’ to an immigration decision
and all must be forwarded to DHS.” (Id. (emphasis in original).) The government further
contends that even if § 1722(a)(2) is ambiguous, the FBI and DHS’s interpretation of the
provision is reasonable and entitled to deference. (Id.)
Makowski argues that § 1722(a)(2) is unambiguous and did not authorize—much less
mandate—the FBI’s disclosure of his fingerprints and criminal record to DHS. In his view, the
statute “allows the FBI to transmit records to the DHS only when the FBI knows or believes
someone to be ‘an alien.’” (Pl.’s Resp. to Mot. to Dismiss 5, ECF No. 63.) Makowski contends
that because the FBI’s own records demonstrated that he was a United States citizen, his
fingerprints could not have been “relevant” to an immigration decision, and § 1722(a)(2) did not
require the disclosure. He further argues that the FBI and DHS’s interpretation of § 1722(a)(2) is
not entitled to deference because it is an unreasonable construction of an unambiguous statute.
In reviewing the FBI and DHS’s interpretation of § 1722(a)(2), the court must resolve
two issues. First, the court must determine “whether Congress has directly spoken to the precise
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question at issue.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842
(1984).1 If the statute’s text unambiguously speaks to the specific issue in question, then “the
court, as well as the agency, must give effect to the . . . expressed intent of Congress.” Id. at
842-43. But “if the statute is silent or ambiguous with respect to the specific issue, the [second]
question for the court is whether the agency’s answer is based on a permissible construction of
the statute.” Id. at 843. When Congress delegates to an agency the authority to formulate policy
and rules for carrying out a statutory provision, even if the delegation is implicit, “a court may
not substitute its own construction of a statutory provision for a reasonable interpretation made
by the administrator of an agency.” Id. at 843-44. This deferential approach respects an
agency’s superior ability—as compared to that of the court—to reconcile conflicting policies in
determining the meaning and reach of a statute that the agency has been entrusted by Congress to
administer. Id. at 844.
With respect to the first Chevron inquiry, § 1722(a)(2) does not directly speak to whether
the FBI, upon receiving Makowski’s fingerprints, was required to disclose them to DHS. The
statute requires the President to “develop and implement an interoperable electronic data system
to provide current and immediate access to information in [their] databases . . . that is relevant to
determine whether to issue a visa or to determine the admissibility or deportability of an alien.”
8 U.S.C. § 1722(a)(2). The President is instructed to do so “acting through the Assistant to the
President for Homeland Security, in coordination with . . . the Attorney General, . . . [and] the
Director of the Federal Bureau of Investigation.” 8 U.S.C. § 1701(6). Congress provided no
definition or clarification as to what information is “relevant” to immigration decisions,
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The parties analyzed the issue of deference under Chevron. The court notes that it would
reach the same conclusion, however, under Skidmore v. Swift & Co., 323 U.S. 134 (1944),
because the government’s interpretation of the statute is both reasonable and persuasive.
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implicitly delegating to the implementing agencies the authority to determine what is “relevant.”
While Makowski alleges that the FBI knew, based on information in its records, that Makowski
was an American citizen and could not be subject to an immigration determination, § 1722(a)(2)
requires the FBI to provide “immediate” access to its information. Because Congress did not
specify what “immediate” means, the statute is ambiguous as to whether it required the FBI to
disclose the information before it had an opportunity to verify Makowski’s citizenship status
from its own records. Because the statute’s text does not “speak with the precision necessary to
say definitively whether it” mandated the FBI’s disclosure of Makowski’s fingerprints and
criminal record to DHS, the court must defer to the FBI and DHS’s application of the statute if it
was reasonable. United States v. Eurodif S.A., 555 U.S. 305, 319 (2009).
Regarding the second prong of the Chevron inquiry, the court finds that the FBI and
DHS’s interpretation and application of § 1722(a)(2) with respect to the disclosure of
Makowski’s fingerprints and criminal record was reasonable.
After receiving Makowski’s
fingerprints from the DuPage County Sheriff’s office, the FBI forwarded the fingerprints to DHS
for a query in the IDENT database before attempting to verify Makowski’s citizenship status
from its own records. The FBI did not know how long Makowski would be detained by the
DuPage County Sheriff’s office, and it was reasonable to believe that Congress intended in such
circumstances for the FBI to forward the fingerprints and criminal record to DHS as soon as
possible to determine whether the information would affect an immigration enforcement
decision. Given that DHS’s response indicated that Makowski was born in India, the FBI’s
disclosure of the fingerprints to ICE’s LESC was also reasonable, as a foreign place of birth
indicated that the FBI’s information might be relevant to an immigration enforcement decision.
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The fact that the FBI and DHS changed their policy in 2008 to forward to LESC the
fingerprints and criminal record of an individual born in a foreign country even when IDENT
generated a “no match” response, see supra at 3, does not undermine the reasonableness of the
new policy.
“Agency inconsistency is not a basis for declining to analyze the agency’s
interpretation under the Chevron framework.” Nat’l Cable & Telecomms. Ass’n v. Brand X
Internet Servs., 545 U.S. 967, 981 (2005). A change in policy will not undermine the agency’s
interpretation as long as “the agency adequately explains the reasons.” Id. The Staff Paper
attached to the complaint explained that the change reflected the fact that a “no match’ response
coupled with a foreign place of birth “may indicate a first encounter of a potential illegal alien.”
(Oct. 22, 2008 Staff Paper 3.) Better or swifter compliance with Congress’s instruction “to
improve and modernize efforts to identify aliens convicted of a crime, sentenced to
imprisonment, and who may be deportable” (id.) is a reasonable and adequate explanation for the
change in policy.
As § 1722(a)(2) is ambiguous as to what it required the FBI to do upon receiving
Makowski’s fingerprints, the court defers to the FBI and DHS’s interpretation and application of
the statute, which was reasonable. Thus, the FBI’s transmissions of Makowski’s fingerprints and
criminal record to DHS’s IDENT database and to ICE’s LESC were mandated by Federal statute
and covered by BRU 6. The disclosures meet the “routine use” publication requirement.
2. The Compatibility Requirement
The court next considers whether the purpose of the disclosures was compatible with the
purpose for which the records were collected. The fingerprints submitted to the FBI by the
DuPage County Sheriff’s office and the FBI’s criminal records on Makowski are part of the
FBI’s Fingerprint Identification Record System (FIRS). See 64 Fed. Reg. 52,347 (Sept. 28,
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1999) (Categories of records in the FIRS include “[c]riminal fingerprints and/or related criminal
justice information submitted by authorized agencies having criminal justice responsibilities”
and “[i]dentification records sometimes referred to as ‘rap sheets,’ which are compilations of
criminal history record information pertaining to individuals who have criminal fingerprints
maintained in the system.”). The purposes for collecting these records include performing
“identification and criminal history record information functions” and maintaining “resultant
records for local, state, tribal, federal, foreign, and international criminal justice agencies.” Id.
Makowski alleges that the FBI made the disclosures to determine whether he had been identified
by DHS as a high priority target and to allow ICE to follow up with immigration enforcement.
The disclosures were compatible with the published purposes for which the FBI collected them.
Because the FBI’s disclosures have met both the publication and compatibility
requirements of the Privacy Act’s “routine use” exception, they were permissible under the
Privacy Act. The FBI cannot be liable to Makowski under the Privacy Act without having
violated the Act. See 5 U.S.C. § 552a(g)(1). Makowski’s Privacy Act claims against the FBI are
dismissed as he has pleaded facts that show he is not entitled to relief on these claims.
B. Privacy Act Claim Against DHS for Actual Damages (Count II)
In Count II, Makowski claims that DHS violated his rights under the Privacy Act, which,
in addition to its restrictions regarding disclosures of records, requires an agency to “maintain all
records which are used by the agency in making any determination about any individual with
such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure
fairness to the individual in the determination.” 5 U.S.C. § 552a(e)(5). The Privacy Act permits
an individual to bring a civil action against an agency that makes a determination adverse to the
individual based on the agency’s failure “to maintain any record concerning [that] individual
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with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in
any determination relating to the . . . rights . . . [of] the individual that may be made on the basis
of such record.” 5 U.S.C. § 552a(g)(1)(C). If “the court determines that the agency acted in a
manner which was intentional or willful,” the plaintiff may recover “actual damages sustained by
the individual as a result of the refusal or failure.” § 552a(g)(4)(A). Makowski claims that the
government is liable to him for “lost wages and other pecuniary and economic harm,” caused by
DHS’s violations of his rights under the Privacy Act. (First Am. Compl. ¶ 85.)
The government does not challenge Makowski’s allegation that DHS’s records pertaining
to him were inaccurate, but it argues that he has failed to state a claim for actual damages under
the Privacy Act. It contends that his claim fails for three reasons: (1) he “has failed to allege
facts showing that [DHS] ‘intentionally or willfully’ violated the Privacy Act”; (2) he “has not
pleaded that he has suffered ‘actual damages’”; and (3) he “has not alleged that [DHS’s] alleged
violations of the Privacy Act were the cause of his damages.” (Defs.’ Mot. to Dismiss 9, 15, 17.)
1. Intentional or Willful Violation
The government first argues that Makowski’s claim for damages fails because he has
pleaded no facts to support his allegation that DHS intentionally or willfully failed to update its
records to reflect his citizenship status. As stated above, under § 552a(g)(4)(A) of the Privacy
Act, a plaintiff is entitled to recover damages only if a “court determines that the agency acted in
a manner which was intentional or willful.”
5 U.S.C. § 552a(g)(4)(A) (emphasis added).
According to the Seventh Circuit, the standard is “greater than gross negligence” and
encompasses “reckless behavior and/or knowing violations of the Act on the part of the
accused.” Moskiewicz v. U.S. Dept. of Agric., 791 F.2d 561, 564 (7th Cir. 1986). In determining
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whether this standard is met, “a court may consider the entire course of conduct that resulted in
the” Privacy Act violation. Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 551 (6th Cir. 2010).
Drawing all reasonable inferences in Makowski’s favor, the court finds that he has
sufficiently pleaded facts to support his claim that DHS willfully violated its duty under the
Privacy Act to maintain accurate records. Makowski has been a U.S. citizen since 1989. He
alleges that after he spoke to a person he believed to be an ICE officer, ICE canceled the
immigration detainer that had been issued against him in 2009. (First Am. Compl. ¶¶ 31, 33.)
The court can reasonably infer from these allegations that ICE (a component of DHS) was put on
notice not only that its record pertaining to Makowski’s citizenship status was inaccurate, but
also that this inaccuracy had the potential to contribute to an adverse immigration enforcement
determination regarding Makowski—as it did with the issuance of the 2009 detainer. Makowski
alleges that despite this notice, ICE did not update its records to reflect his citizenship status, as
evidenced by the unlawful immigration detainer ICE issued against him in July 2010. (First Am.
Compl. ¶ 38.) Accepting these allegations as true, it is plausible that DHS flagrantly disregarded
Makowski’s rights under the Privacy Act by failing to update its records after being put on notice
of the inaccuracy and its potential to contribute to an unfair determination against him.
2. Actual Damages
The government next argues that Makowski has failed to plead that he suffered “actual
damages,” as required by § 552a(g)(4)(A). In an action in which an agency is found to have
intentionally or willfully violated the Privacy Act, the United States is liable for “actual damages
sustained by the individual as a result of the [violation], but in no case shall a person entitled to
recovery receive less than the sum of $1,000.” 5 U.S.C. § 552a(g)(4)(A) (emphasis added). The
Supreme Court has held that “[t]he statute guarantees $1,000 only to plaintiffs who have suffered
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some actual damages.” Doe v. Chao, 540 U.S. 614, 627 (2004). In F.A.A. v. Cooper, the
Supreme Court further explained that victims must demonstrate “pecuniary or material” harm.
132 S. Ct. 1441, 1451 (2012). Put simply, fear or emotional harm is insufficient.
In this case, Makowski has sufficiently pleaded that he suffered actual damages. He
alleges that following his release from boot camp on July 20, 2011, he began working as a
network administrator in September 2011. (First Am. Compl. ¶ 49.) He alleges that had the
unlawful immigration detainer not been issued, he would have been released in mid-May, would
have immediately sought gainful employment, and would have begun working earlier than
September. (Id.) Makowski alleges that he therefore suffered lost wages and other pecuniary
harm. (Id. at ¶¶ 78, 85.)
Although the government argues that these allegations are too speculative, the court must
accept the allegations as true and draw all reasonable inferences in Makowski’s favor. It is
reasonable to infer that the seventy days of unnecessary incarceration cost Makowski prospective
employment opportunities. Loss of economic opportunity is pecuniary harm. See Speaker v.
U.S. Dept. of Health and Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371,
1383 (11th Cir. 2010) (holding that an allegation of “loss of prospective clients as an attorney”
satisfied the “actual damages” requirement); Beaven, 622 F.3d at 558 (remanding to the district
court for factual findings because “[t]he additional ‘lost time’ damages sought by Plaintiffs may
qualify as ‘out-of-pocket losses’”). Taken as true, Makowski’s allegations plausibly suggest that
he suffered actual damages.
3. Causation
Finally, the government argues that the complaint fails to state a claim for damages
against DHS because Makowski “has not alleged that the agenc[y]’s violation[] of the Privacy
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Act [was] the cause of his damages.” (Defs.’ Mot. to Dismiss 17.) A plaintiff is entitled to
monetary damages under the Privacy Act only if he proves that the Privacy Act violation was the
proximate cause of the damages sustained. 5 U.S.C. § 552a(g)(4)(A); see also Dickson v. Office
of Pers. Mgmt., 828 F.2d 32, 37 (D.C. Cir. 1987). Because it was IDOC’s decision to disqualify
Makowski from boot camp because of the immigration detainer, the government argues that the
causal chain between the alleged Privacy Act violation by DHS and Makowski’s damages was
broken. (Defs.’ Mot. to Dismiss 18.)
Makowski has sufficiently alleged that DHS’s violation of the Privacy Act proximately
caused him to suffer actual damages. The complaint alleges an unbroken chain of events,
beginning with DHS’s failure to maintain accurate records regarding Makowski (First Am.
Compl. ¶ 38), and ending with Makowski’s lost wages (id. at ¶ 49.) Makowski has linked the
alleged Privacy Act violation with his alleged damages by stating that ICE issued an unlawful
detainer against him because of its reliance on DHS’s inaccurate records (id. at ¶ 38), the
detainer disqualified Makowski from boot camp (id. at ¶ 46), Makowski was not processed into
boot camp until his father retained an attorney’s assistance to prompt ICE to cancel the detainer
(id. at ¶ 48), and the delay in processing into boot camp caused Makowski to remain incarcerated
from May to July 2011, preventing him from seeking employment (id. at ¶ 49).
Although IDOC was responsible for disqualifying Makowski from boot camp, the
independent action of a third party does not necessarily eviscerate proximate cause. See Sullivan
v. U.S. Postal Serv., 944 F. Supp. 191, 197 (W.D.N.Y. 1996) (where employer fired plaintiff
after the Postal Service violated the Privacy Act in disclosing plaintiff’s job application,
summary judgment was inappropriate because “the question of proximate cause [wa]s a disputed
question of material fact”). As the Seventh Circuit has explained, “reasonably foreseeable
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intervening forces will not break the chain of proximate causation.” United States v. KingVassel, 728 F.3d 707, 714 (7th Cir. 2013).
Here, drawing all reasonable inferences in Makowski’s favor, the impact of the
immigration detainer on Makowski’s incarceration was reasonably foreseeable. DHS was aware
that local law enforcement entities would likely respond to the detainer by holding an inmate in
custody, making prolonged detention a natural and normal result of the detainer. See id. See
also Carchman v. Nash, 473 U.S. 716, 719 (1985) (“A detainer is a request filed . . . with the
institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for
the agency or to notify the agency when release of the prisoner is imminent.”). When a detainer
is issued, detention or a change in custody status is foreseeable even if detention based on an
immigration detainer is not mandatory, as a split panel of the Third Circuit recently concluded.
See Galarza v. Szalczyk, ___F.3d___, 2014 WL 815127, at *7 (3d Cir. Mar. 4, 2014) (holding in
2-1 decision that “detainers are not mandatory,” but must be considered “requests”). Although
the causal chain contains several links, Makowski has plausibly alleged that DHS’s violation of
the Privacy Act caused him actual damages.
C. Privacy Act Claim Against DHS for Equitable Relief (Count VI)
In addition to damages, Makowski seeks preliminary and permanent injunctive relief. He
asks the court to order DHS to cease maintaining the fingerprints and records pertaining to him
that were disclosed by the FBI to DHS. (First Am. Compl. ¶ 112.) He also asks the court to
declare that DHS’s maintenance of such data violates the Privacy Act. (Id. at ¶ 113.) The
Government argues that Makowski lacks standing to pursue these claims for equitable relief.
(Defs.’ Mot. to Dismiss 18-19.)
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To overcome a motion to dismiss for lack of standing, a plaintiff must plausibly allege
that he has suffered a “concrete,” “actual or imminent” injury that “is fairly traceable to the
challenged action of the defendant” and is likely to be “redressed by a favorable decision.”
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). In
other words, he must be “realistically threatened by a repetition of his experience.” City of Los
Angeles v. Lyons, 461 U.S. 95, 109 (1983). “[A] plaintiff must demonstrate standing separately
for each form of relief sought.” Friends of the Earth, 528 U.S. at 185.
Makowski argues that he has established a threat of imminent injury. For example, he
alleges that when a potential employer attempted to verify his citizenship status using E-Verify,
an electronic database managed by DHS and the Social Security Administration, E-Verify
returned a response indicating that his status as a citizen could not be verified. (First Am.
Compl. ¶ 69.) Makowski argues that equitable relief is necessary to remedy an ongoing violation
of his rights under the Privacy Act.
Makowski might be able to establish standing to seek an injunction against future
immigration detainers or to require DHS to correct his records.
See, e.g., Morales v.
Chadbourne, C.A. No. 12-301-M, __F. Supp. 2d ___, 2014 WL 554478, at *15 (D.R.I. Feb. 12,
2014) (concluding that foreign-born American citizen had standing to seek injunctive relief
because she was “twice inappropriately detained on a detainer alleging immigration violations,”
and “ICE officials told her that this could happen to her again”). The declaratory and injunctive
relief he seeks in Count VI, however, is not related to the accuracy of DHS’s recordkeeping, but
to “DHS’s maintenance of [his] fingerprint and other data in its IDENT database.” (First Am.
Compl. ¶ 108.) As the court held above, although Makowski may proceed on his claim in Count
II that DHS failed to maintain his records accurately, his claim in Count I that the FBI violated
17
the Privacy Act by sharing his records has been dismissed. Furthermore, injunctive relief is not
available for claims alleging inaccurate recordkeeping under § 552a(g)(1)(C) of the Privacy Act.
It is available in suits seeking to amend a record under § 552a(g)(2) and suits for access to a
record under § 552a(g)(3). Chao, 540 U.S. at 635 (Ginsburg, J., dissenting); Clarkson v. IRS,
678 F.2d 1368, 1375 n.11 (11th Cir. 1982) (“The Privacy Act expressly provides for injunctive
relief for only two types of agency misconduct, that is, wrongful withholding of documents . . .
and wrongful refusal to amend an individual’s record . . . .”).
In sum, Makowski has not alleged facts in support of his claim for equitable relief
showing that his “injury is fairly traceable to the challenged action of the defendant” and “that
the injury will be redressed by a favorable decision.” Friends of the Earth, 528 U.S. at 180-81
(2000). Count VI is therefore dismissed. The dismissal is without prejudice, as Makowski may
be able to allege facts stating a claim for equitable relief against DHS.
D. FTCA False Imprisonment Claim against the United States (Count III)
1. False Imprisonment and Probable Cause
In Count III, Makowski alleges that the government’s agents falsely imprisoned him, in
violation of the FTCA. The FTCA “remove[s] the sovereign immunity of the United States from
suits in tort.” Levin v. United States, 133 S. Ct. 1224, 1228 (2013). Sovereign immunity is
waived “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.” 28
U.S.C. § 1346(b)(1). The FTCA requires courts to consult state law to determine whether the
government is liable for its employees’ torts. FDIC v. Meyer, 510 U.S. 471, 478 (1994) (“[The]
law of the State [is] the source of substantive liability under the FTCA.”). The FTCA does not
waive sovereign immunity for claims based on alleged violations of federal law. Id. at 478.
18
The FTCA’s waiver of sovereign immunity is subject to a number of exceptions set forth
in 28 U.S.C. § 2680. The “intentional tort exception” preserves the government’s immunity
from suit for “[a]ny claim arising out of assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference
with contract rights,” except for claims arising “out of assault, battery, false imprisonment, false
arrest, abuse of process, or malicious prosecution” that are asserted against “investigative or law
enforcement officers of the United States Government.” 28 U.S.C. § 2680(h); Millbrook v.
United States, 133 S. Ct. 1441, 1443 (2013). An “investigative or law enforcement officer” is
“any officer of the United States who is empowered by law to execute searches, to seize
evidence, or to make arrests for violations of Federal law.” § 2680(h). Immigration officials
have been held to fall within the law enforcement proviso. See, e.g., Medina v. United States,
259 F.3d 220, 224 (4th Cir. 2001). Thus, sovereign immunity is waived with respect to a claim
alleging false imprisonment by immigration officials. See, e.g., Liranzo v. United States, 690
F.3d 78, 94-95 (2d Cir. 2012) (“[T]he United States has indeed waived its sovereign immunity
from suit as to Liranzo’s ‘claim,’ which ‘aris[es] . . . out of . . . false imprisonment [and] false
arrest.’” (quoting § 2680(h))).
As stated above, state law provides the substantive law governing an FTCA claim. Under
Illinois law, to state a claim for false imprisonment, “the plaintiff must allege that his personal
liberty was unreasonably or unlawfully restrained against his will and that defendant(s) caused or
procured the restraint.” Arthur v. Lutheran Gen. Hosp., 692 N.E.2d 1238, 1243 (Ill. App. Ct.
1998). A claim for false imprisonment requires a showing that “the plaintiff was restrained or
arrested by the defendant, and that the defendant acted without having reasonable grounds to
believe that an offense was committed by the plaintiff.” Meerbrey v. Marshall Field & Co., 564
19
N.E.2d 1222, 1231 (Ill. 1990). Put another way, to succeed on a claim for false imprisonment, a
plaintiff must show that he was restrained unreasonably or without probable cause. Martel
Enters. v. City of Chi., 584 N.E.2d 157, 161 (Ill. App. Ct. 1991). “Probable cause is an absolute
bar to a claim for false imprisonment.” Poris v. Lake Holiday Prop. Owners Ass’n, 983 N.E.2d
993, 1007 (Ill. 2013).
According to Makowski’s complaint, “DHS’s and ICE’s agents, officers, servants, and
employees willfully and unlawfully restrained [him] and deprived him of his liberty to move
more freely.” (First Am. Compl. ¶ 89.) Makowski claims that the issuance of the detainer
resulting in his detention in prison was unreasonable because no probable cause existed to
believe that he had committed an immigration violation, particularly after he met with an ICE
officer and provided copies of his passport and Social Security card. (Id. at ¶¶ 90-91.)
The government first argues that the false imprisonment claim fails because Makowski
was held pursuant to legal process: he pleaded guilty to a drug offense and was sentenced to
seven years’ imprisonment. Makowski, however, argues that his claim is based on the fact that
he was detained pursuant to the immigration detainer, not the state criminal charges. Makowski
alleges that he spent seventy days in custody as a result of the detainer. The court concludes that
he has sufficiently alleged that he was unlawfully restrained as a result of the detainer.
More problematic is the question of whether probable cause existed to issue the detainer.
The detainer was issued in accordance with the Secure Communities Standard Operating
Procedures attached to the complaint as Exhibit A.
That document states, “When ICE
determines an alien has been charged or convicted of a Level 1 offense that could result in
removal . . . ICE will file an Immigration Detainer (Form I-247) at the time of booking with the
local [Law Enforcement Agency] that has custody of the alien.” (Standard Operating Procedures
20
§ 2.1.5.)
Level 1 offenses include “drug offenses involving a sentencing to a term of
imprisonment greater than one year.” (Id.)
Makowski, who received a seven-year sentence for a drug offense, committed a Level 1
offense, and DHS records indicated that he was an alien. Thus, the issuance of the detainer in
July 2010 was supported by probable cause. ICE officers relied on incorrect DHS records when
they issued the detainer. But Seventh Circuit precedent indicates that an incorrect assumption
about the facts does not destroy probable cause. See Payne v. Pauley, 337 F.3d 767, 775 (7th
Cir. 2003) (“The test is an objective one and evaluates whether probable cause existed on the
facts as they appeared to a reasonable police officer, even if the reasonable belief of that officer
is ultimately found to be incorrect.”).
Makowski, however, met with an ICE officer in December 2010, and he provided the
officer with his passport and other information indicating his U.S. citizenship. The government
points out that this was five months after the detainer was issued. But Makowski has submitted
as an exhibit an ICE memorandum dated November 19, 2009, directing officers and agents to
“immediately examine the merits of [a] claim” of U.S. citizenship by a detained individual, and
indicating that “[a]bsent extraordinary circumstances,” a recommendation on the claim should be
prepared within 24 hours and that a decision should be issued within 24 hours thereafter. (First
Am. Compl. Ex. D (Nov. 19, 2009 Mem.), ECF No. 45-4.) In Makowski’s case, no prompt
recommendation and decision resulted from his citizenship claim, and the detainer was not
canceled until his father sought legal assistance. To analogize to the criminal context, “[t]he
continuation of even a lawful arrest violates the Fourth Amendment when the police discover
additional facts dissipating their earlier probable cause.” BeVier v. Hucal, 806 F.2d 123, 128
(7th Cir. 1986) (citing People v. Quarles, 410 N.E.2d 497 (Ill. 1980)); see also Brooks v. City of
21
Aurora, Ill., 653 F.3d 478, 486 (7th Cir. 2011) (finding that the probable cause inquiry is the
same for § 1983 false arrest and false imprisonment claims). The court concludes that Makowski
has alleged a plausible claim for false imprisonment against the United States.
2. The Discretionary Function Exception to the FTCA
The government argues that, even if Makowski has pleaded an FTCA claim, the
challenged conduct falls within the “discretionary-function” exception to the FTCA, which states
that the United States shall not be liable for any claim based on “the exercise or performance or
the failure to exercise or perform a discretionary function or duty on the part of a federal agency
or employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C.
§ 2680(a). As the Supreme Court has explained, “[t]he exception covers only acts that are
discretionary in nature, acts that involve an element of judgment or choice, and it is the nature of
the conduct, rather than the status of the actor that governs whether the exception applies.”
United States v. Gaubert, 499 U.S. 315, 322 (1991) (internal citations and quotation marks
omitted). “The purpose of this discretionary-function exception is to ‘prevent judicial “secondguessing” of legislative and administrative decisions grounded in social, economic, and political
policy through the medium of an action in tort.’” Reynolds v. United States, 549 F.3d 1108,
1112 (7th Cir. 2008) (quoting Berkovitz v. United States, 486 U.S. 531, 535 (1988)).
The Supreme Court has stated that a court should first inquire “whether the challenged
actions were discretionary, or whether they were instead controlled by mandatory statutes or
regulations.” Gaubert, 499 U.S. at 328. Where a course of action is specifically prescribed by a
regulation or policy, an employee’s conduct cannot be discretionary. Likewise, “[w]hen a suit
charges an agency with failing to act in accord with a specific mandatory directive, the
discretionary function exception does not apply.” Berkovitz, 486 U.S. at 544.
22
Here, the government argues that DHS and ICE exercise discretion in conducting
investigations and determining whether to issue an immigration detainer. The government is
correct that “challenges to the quality of an investigation or prosecution are generally barred by
the discretionary-function exception.” Reynolds, 549 F.3d at 1113. On the other hand, when
government employees engage in conduct proscribed by law or policy, that conduct is “separable
from the discretionary decision to prosecute.” Id. (exception did not apply when government
investigators were alleged to have knowingly provided false information to prosecutors).
In this case, Makowski has plausibly alleged that, in issuing and failing to cancel the
immigration detainer, employees of DHS and ICE acted in a manner contrary to federal policies,
which required ICE to promptly investigate any claims of citizenship. (See Nov. 19, 2009
Mem.) In failing to investigate Makowski’s claim to be a citizen and to cancel the detainer, the
federal agents therefore failed “to act in accord with a specific mandatory directive, [and] the
discretionary function exception does not apply.” Berkovitz, 486 U.S. at 544.2
E. FTCA Negligence Claim against the United States (Count IV)
Turning to Count IV, the government argues that Makowski’s negligence claim under the
FTCA is barred by sovereign immunity. As discussed above, the FTCA’s waiver of sovereign
immunity is subject to a number of exceptions set forth in 28 U.S.C. § 2680. The “intentional
tort exception” preserves sovereign immunity from suit for “[a]ny claim arising out of . . .
2
The court need not decide whether the government can satisfy the second part of the
discretionary-function test: whether the challenged conduct is a permissible exercise of policy
judgment. See Berkovitz, 486 U.S. at 537. The Second Circuit has held that the exception did
not cover INS agents’ actions in detaining a U.S. citizen because these actions “are not the kind
that involve weighing important policy choices.” Caban v. United States, 671 F.2d 1230, 1233
(2d Cir. 1982); see also Uroza v. Salt Lake Cnty., No. 1:11CV713DAK, 2013 WL 653968, at *9
(D. Utah Feb. 21, 2013) (relying on Caban in holding that the discretionary-function exception
did not bar an FTCA claim based on ICE agents’ issuance of a detainer).
23
misrepresentation.” 28 U.S.C. § 2680(h). The government argues that Makowski’s negligence
claim falls within this category of claims, for which sovereign immunity has not been waived.
In Deloria v. Veterans Administration, the Seventh Circuit held that the FTCA’s
exceptions for “misrepresentation and deceit” encompassed a claim that VA officials had
conspired to distort the plaintiff’s medical records, resulting in the denial of his disability
benefits. 927 F.2d 1009, 1012 (7th Cir. 1991). The court emphasized that “the United States
retains its sovereign immunity with respect to charges of deceit and misrepresentation—
regardless of the technical terms in which they are framed.” Id. at 1013. In reaching this
conclusion, the Seventh Circuit cited two out-of-circuit cases holding that negligent
recordkeeping claims against federal agencies were barred under the exception for
“misrepresentation.” See Alexander v. United States, 787 F.2d 1349 (9th Cir. 1986) (claim that
government negligently failed to remove information from plaintiff’s record that a state court
had ordered to be expunged was a misrepresentation claim barred by § 2680(h)); Bergman v.
United States, 751 F.2d 314 (10th Cir. 1984) (claim that government negligently failed to correct
classification records was barred by § 2680(h)), cert. denied, 474 U.S. 945 (1985).
Similarly, in Omegbu v. United States, a Wisconsin district court concluded that “[t]he
plaintiff’s allegation that the FBI or USCIS misrepresented information—whether intentionally
or negligently—falls under the intentional tort exception of § 2680(h).” No. 10-C-765, 2011 WL
2912703, at *4 (E.D. Wis. July 18, 2011). The court reasoned that the negligent mishandling of
records amounts to misrepresentation, a claim barred by sovereign immunity. The court of
appeals affirmed, stating that the FTCA’s exception for misrepresentation “bars claims against
the United States for the willful mishandling of records.” Omegbu v. United States, 475 F.
App’x 628, 629 (7th Cir. 2012).
24
This court agrees with the government that under Deloria and Omegbu, Makowski’s
negligence claim falls within the intentional tort exception to § 2680(h) for misrepresentation
and is therefore barred by sovereign immunity. Count IV is dismissed.
IV. CONCLUSION
For the reasons explained above, the government’s motion to dismiss is granted in part
and denied in part. Counts I, IV, and V are dismissed. Count VI is dismissed without prejudice.
The motion is denied as to Counts II and III.
ENTER:
/s/
JOAN B. GOTTSCHALL
United States District Judge
DATED: March 18, 2014
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