CASE 0:21-cv-02233-NEB-JFD Doc.

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UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA
Civil No. 21-cv-02233-NEB-JFD

KERLIN SANCHEZ VILLALOBOS, and DAYSI

VILLALOBOS IZAGUIRRE, on behalf of her
minor daughter, Y.S., ANSWER ON BEHALF OF
DEFENDANT UNITED
Plaintiffs, STATES OF AMERICA

v.

UNITED STATES OF AMERICA,

Defendant.

Defendant United States of America (“United States” or “Defendant”) for its answer

to Plaintiffs’ Complaint, filed October 11, 2021 (ECF No. 1), states as follows:

FIRST DEFENSE

Plaintiffs failed to present an administrative tort claim in sum certain for each

claimant by persons authorized to make such claims to the Department of Health and

Human Services (HHS) and exhaust their administrative remedies under 28 U.S.C. 2675(a)

and have those claims denied prior to commencing this lawsuit under the Federal Tort

Claims Act (“FTCA”), 28 U.S.C. § 2675(a). Thus, this Court lacks subject matter

jurisdiction over any and all claims against HHS.

SECOND DEFENSE

Plaintiffs failed to present an administrative tort claim in sum certain for each

claimant by persons authorized to make such claims to U.S. Immigration and Customs

Enforcement (ICE) within the Department of Homeland Security (DHS) and exhaust their
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administrative remedies under 28 U.S.C. 2675(a) and have those claims denied by ICE

prior to commencing this lawsuit under the Federal Tort Claims Act (“FTCA”), 28 U.S.C.

§ 2675(a). Thus, this Court lacks subject matter jurisdiction over any and all claims against

ICE.

THIRD DEFENSE

This Court lacks subject matter jurisdiction over this case and/or the Complaint fails

to state a claim against the United States because Plaintiffs’ failed to present proper and

complete written administrative claims to U.S. Customs and Border Protection (CBP)

within the Department of Homeland Security in sums certain for each claimant by persons

authorized to make such claims to the appropriate federal agency and have those claims

denied prior to commencing this lawsuit under the Federal Tort Claims Act (“FTCA”), 28

U.S.C. § 2675(a). One purported claim was received by CBP on behalf of two persons

without delineating a sum certain for each person or adequate documentation of the

authority to make the claims for each of the two persons.

FOURTH DEFENSE

This action is subject to immediate dismissal for lack of personal jurisdiction,

insufficient process, and insufficient service of process because copies of the complaint

and summons were not served by registered or certified mail to the Attorney General of

the United States in Washington, D.C. as required by Fed. R. Civ. P. 4(i)(1)(B), or within

90 days of commencement of the action as required by Fed. R. Civ. P. 4(m).

FIFTH DEFENSE

This Court lacks subject matter jurisdiction over this case and/or the Complaint fails
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to state a claim against the United States because Plaintiffs’ claims are based on alleged

acts or omissions by employees of the United States exercising due care in the execution

of federal statutes or regulations and thus the claims are not cognizable under the Federal

Tort Claims Act (“FTCA”), 28 U.S.C. § 2680(a).

SIXTH DEFENSE

This Court lacks subject matter jurisdiction over this case and/or the Complaint fails

to state a claim against the United States because Plaintiffs’ claims are barred by the

discretionary function exception to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §

2680(a).

SEVENTH DEFENSE

The Court lacks subject matter jurisdiction and/or the Complaint fails to state a

claim against the United States because Plaintiffs’ claims arise out of assault, battery, false

imprisonment, false arrest, abuse of process, libel, slander, misrepresentation, deceit, or

other intentional tort and thus are not cognizable under the FTCA, 28 U.S.C. § 2680(h).

EIGHTH DEFENSE

The Court lacks subject matter jurisdiction and/or the Complaint fails to state a

claim against the United States because Plaintiffs’ claims appear to arise under the Flores

Agreement, the Victims of Trafficking and Violence Protection Act of 2000, or other

federal law and not state law and thus are not cognizable under the FTCA. 28 U.S.C. §§

1346(b), 2674, 2679, 2680.

NINTH DEFENSE

The Court lacks subject matter jurisdiction and/or the Complaint fails to state a
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claim against the United States because Defendant United States, were it a private person,

would not be liable under Texas or other applicable state law.

TENTH DEFENSE

The Court lacks subject matter jurisdiction and/or the Complaint fails to state a

claim against the United States to the extent that the acts and/or omissions upon which the

Complaint is based were acts and/or omissions of contractors or third parties for whose

acts and/or omissions the United States is not legally responsible pursuant to 28 U.S.C. §

2671.

ELEVENTH DEFENSE

Defendant denies all the allegations in the Complaint including its footnotes except

to the extent any such allegation is specifically admitted hereinafter.

TWELTH DEFENSE

Defendant makes the following responses to the specific numbered paragraphs of

the Complaint. The numbered paragraphs below correspond to the numbered paragraphs

in the Complaint. Defendant duplicated the topic headings from Plaintiffs’ Complaint and

inserted them for ease of reference. Use of these topic headings below does not constitute

an admission or acknowledgement by the Defendant of the relevance or accuracy of the

topic headings. Defendant answers the numbered paragraphs of the Complaint as follows:

INTRODUCTION

1. The allegations in paragraph 1 constitute Plaintiffs’ characterization of their

complaint or conclusions of law to which no answers are required; however, to the extent

answers are deemed required, Defendant denies each allegation in paragraph 1 unless
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specifically admitted hereinafter and Defendant otherwise lacks knowledge or information

sufficient to form a belief about the truth of the allegations in paragraph 1.

2. The allegations in paragraph 2 constitute Plaintiffs’ characterizations of their

complaint or conclusions of law to which no answers are required; however, to the extent

answers are deemed required, Defendant denies each allegation in paragraph 2 unless

specifically admitted hereinafter and Defendant otherwise Defendant lacks knowledge or

information sufficient to form a belief about the truth of the allegations in paragraph 2.

3. The allegations in paragraph 3 constitute Plaintiffs’ characterizations of their

complaint or conclusions of law to which no answers are required; however, to the extent

answers are deemed required, Defendant denies each allegation in paragraph 3 unless

specifically admitted hereinafter, Defendant admits Kerlin and Y.S. were maintained by

Defendant CBP in custody in a CBP facility in Texas in June 2019, but Defendant lacks

knowledge or information sufficient to form a belief about the truth of the remaining

allegations in paragraph 3.

4. The allegations in paragraph 4 constitute Plaintiffs’ characterizations of their

complaint or conclusions of law to which no answers are required. However, to the extent

answers are deemed required, Defendant denies the allegations in paragraph 4, except

Defendant lacks knowledge or information sufficient to form a belief about the truth of the

allegations in the first sentence of paragraph 4; Defendant denies the allegations in the

second and third sentences of paragraph 4; Defendant admits a purported administrative

claim was received by CBP, but Defendant denies any administrative claims were

presented to or received by ICE or HHS and Defendant denies the remaining allegations in
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the fourth sentence of paragraph 4; Defendant admits CBP denied the purported claim

received by CBP, but Defendant denies the remainder of the allegations in the fifth sentence

of paragraph 4; Defendant admits Plaintiffs filed this lawsuit, but denies the remaining

allegations in the sixth sentence of paragraph 4 and Defendant specifically denies the Court

has subject matter jurisdiction over the allegations in the complaint, denies the complaint

states cognizable claims against the United States, and Defendant incorporates the other

averments and defenses Defendant interposed in this answer.

PARTIES

5. Defendant lacks knowledge or information sufficient to form a belief about the

truth of the allegations in paragraph 5.

6. Defendant lacks knowledge or information sufficient to form a belief about the

truth of the allegations in paragraph 6.

7. The allegations in paragraph 7 constitute Plaintiffs’ characterizations of their

complaint or conclusions of law to which no answers are required; however, to the extent

answers are deemed required, Defendant admits the United States is the only proper

defendant in an action properly brought under the Federal Tort Claims Act (FTCA), but

Defendant specifically denies this Court has subject matter jurisdiction over the complaint,

denies the claims in this lawsuit are properly brought against the United States under the

FTCA, denies the allegations in the complaint properly state claims against the United

States under the FTCA, and denies the remaining allegations in paragraph 7.

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JURISDICTION

8. Defendant denies the allegations in paragraph 8.

9. Defendant denies the allegations in paragraph 9.

10. The allegations in paragraph 10 pertain to subject matter jurisdiction or Plaintiffs’

characterizations of their complaint to which no answers are required. To the extent

answers are deemed required, Defendant denies the allegations in paragraph 10, except

Defendant admits that, on or about December 17, 2020, the Department of Homeland

Security (“DHS”) headquarters received a cover letter dated December 11, 2020 from

ACLU Minnesota addressed to DHS and to CBP which included a purported

administrative claim with a typewritten supplement, signed and dated October 26,

2020 by Daysi Villalobos Izaguirre, and which cover letter and purported claim were

forwarded to and were stamped received by the Office of Chief Counsel of United

States Customs and Border Protection (CBP) on January 26, 2021.

11. The allegations in paragraph 11 pertain to subject matter jurisdiction or Plaintiffs’

characterizations of their complaint to which no answers are required. To the extent

answers are deemed required, Defendant admits that CBP, by letter dated April 16, 2021,

denied the purported administrative claim, signed and dated October 26, 2020 by Daysi

Villalobos Izaguirre with cover letter dated December 11, 2020, but Defendant lacks

knowledge or information sufficient to form a belief about the truth of the remaining

allegations in paragraph 11.

VENUE

12. The allegations in paragraph 12 pertain to venue and subject matter

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jurisdiction to which no answers are required. To the extent answers are deemed

required, Defendant lacks knowledge or information sufficient to form a belief about

the truth of the allegations in paragraph 12.

FACTS

13. The allegations in paragraph 13 pertain to subject matter jurisdiction,

conclusions of law, or Plaintiffs’ characterizations of their complaint to which no answers

are required. To the extent answers are deemed required, Defendant denies the allegations

in Paragraph 13 as they do not state or pertain any state law duty cognizable under the

FTCA, but Defendant admits the DHS press release from March 13, 2021 cited in footnote

1 exists.

14. The allegations in paragraph 14 pertain to subject matter jurisdiction,

conclusions of law, or Plaintiffs’ characterizations of their complaint to which no answers

are required. To the extent answers are deemed required, Defendant denies the allegations

in Paragraph 14 as they do not state or pertain to any state law duty cognizable under the

FTCA.

15. The allegations in paragraph 15 pertain to subject matter jurisdiction,

conclusions of law, or Plaintiffs’ characterizations of their complaint to which no

answers are required. To the extent answers are deemed required, Defendant denies

the allegations in Paragraph 15 as they do not state or pertain to any state law duty

cognizable under the FTCA.

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16. The allegations in paragraph 16 pertain to subject matter jurisdiction, conclusions

of law, or Plaintiffs’ characterizations of their complaint to which no answers are required.

To the extent answers are deemed required, Defendant denies the allegations in Paragraph

16 as they do not state or pertain to any state law duty cognizable under the FTCA, but

Defendant admits that the court filing cited in footnote 2 exists.

17. Defendant lacks knowledge or information sufficient to form a belief about the

truth of the allegations in paragraph 17.

18. The allegations in paragraph 18 constitute conclusions of law or Plaintiffs’

characterizations of their complaint to which no answers are required. To the extent

answers are deemed required, Defendant denies the allegations in paragraph 18

except Defendant admits that on or about June 9, 2019, CBP Border Patrol Agents

for El Paso Sector apprehended Kerlin and Y.S. Villalobos at a location other than

a Port of Entry, but Defendant lacks knowledge or information sufficient to form a

belief about the truth of the remaining allegations in paragraph 18.

19. The allegations in paragraph 19 pertain to subject matter jurisdiction,

conclusions of law, or Plaintiffs’ characterizations of their complaint to which no

answers are required. To the extent answers are deemed required, Defendant denies

the allegations in Paragraph 19 as they do not state or pertain to any state law duty

cognizable under the FTCA and for other reasons.

20. The allegations in paragraph 20 pertain to subject matter jurisdiction,

conclusions of law, or Plaintiffs’ characterizations of their complaint to which no

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answers are required. To the extent answers are deemed required, Defendant denies

the allegations in Paragraph 20 as they do not state or pertain to any state law duty

cognizable under the FTCA and for other reasons.

21. The allegations in paragraph 21 contains allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant denies the allegations in Paragraph 21 as they do not state or pertain to

any state law duty cognizable under the FTCA and for other reasons.

22. The allegations in paragraph 22a through 22k constitute allegations as to

subject matter jurisdiction, conclusions of law, or Plaintiffs’ characterizations of

their complaint to which no answers are required. To the extent answers are deemed

required, Defendant denies the allegations in Paragraph 22a through 22k inclusive

as they do not state or pertain to any state law duty cognizable under the FTCA and

for other reasons.

23. The allegations in paragraph 23a through 23p constitute allegations as to subject

matter jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint

to which no answers are required. To the extent answers are deemed required, Defendant

denies the allegations in Paragraph 23a through 23p inclusive as they do not state or pertain

to any state law duty cognizable under the FTCA and for other reasons, but Defendant

admits the U.S. Customs and Border Protection National Standards on Transport, Escort,

Detention, and Search (October 2015) (“TEDS”) document cited in footnote 3 exists.

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24. The allegations in paragraph 24 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required, Defendant

denies the allegations in Paragraph 24 as they do not state or pertain to any state law duty

cognizable under the FTCA and for other reasons, except Defendant admits Kerlin and

Y.S. were in CBP custody at a CBP facility in Clint, Texas from June 9, 2019 until June

18, 2019.

25. Defendant lacks knowledge or information sufficient to form a belief about

the truth of the allegations in paragraph 25, but Defendant admits Kerlin and Y.S.

were in CBP custody at a CBP facility in Clint, Texas from June 9, 2019 until June

18, 2019.

26. The allegations in paragraph 26 constitute conclusions of law or Plaintiffs’

characterizations of their complaint to which no answers are required. To the extent

answers are deemed required, Defendant denies the allegations in paragraph 26 as

they do not state or pertain to any state law duty cognizable under the FTCA and for

other reasons, except Defendant admits CBP maintained Kerlin and Y.S. in custody

at a Texas CBP facility from June 9, 2019 until June 18, 2019.

27. The allegations in paragraph 27 constitute conclusions of law or Plaintiffs’

characterizations of their complaint to which no answers are required. To the extent

answers are deemed required, Defendant denies the allegations in paragraph 27 and

footnote 4 as they do not state or pertain to any state law duty cognizable under the FTCA

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and for other reasons, but Defendant admits the June 20, 2019 AP report referenced in

footnote 4 exists.

28. The allegations in paragraph 28 constitute conclusions of law or

Plaintiffs’ characterizations of their complaint to which no answers are required. To

the extent answers are deemed required, Defendant denies the allegations in

paragraph 28 and footnote 5 as they do not state or pertain to any state law duty

cognizable under the FTCA and for other reasons, except Defendant admits the June

20, 2019 AP news article referenced in footnotes 4 and 5 exists.

29. The allegations in paragraph 29 constitute conclusions of law or

Plaintiffs’ characterizations of their complaint to which no answers are required. To

the extent answers are deemed required, Defendant denies the allegations in

paragraph 29 and footnote 6 as they do not state or pertain to any state law duty

cognizable under the FTCA and for other reasons, except Defendant admits the June

20, 2019 AP news article referenced in footnotes 4, 5, and 6 exists.

30. The allegations in paragraph 30 constitute conclusions of law or

Plaintiffs’ characterizations of their complaint to which no answers are required. To

the extent answers are deemed required, Defendant denies the allegations in

paragraph 30 and footnote 7 as they do not state or pertain to any state law duty

cognizable under the FTCA and for other reasons. Defendant admits the New York

Times published the article cited in footnote 7 exists.

31. The allegations in paragraph 31 constitute allegations as to subject matter

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jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant denies the allegations in paragraph 31 and footnotes 7 and 8 as they do

not state or pertain to any state law duty cognizable under the FTCA and for other

reasons, except Defendant admits the July 9, 2019 New York Times article cited in

footnotes 7 and 8 exists.

32. The allegations in paragraph 32 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant denies the allegations in paragraph 32 and footnote 9 as they do not state

or pertain to any state law duty cognizable under the FTCA and for other reasons,

except Defendant admits the ABC news report dated June 27, 2019 cited in

paragraph 32 and footnote 9 exists.

33. The allegations in paragraph 33 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant denies the allegations in paragraph 33 and footnote 10 as they do not state

or pertain to any state law duty cognizable under the FTCA and for other reasons,

except Defendant admits the MSNBC news report/video dated July 10, 2019 cited

in paragraph 33 and footnote 10 exists.

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34. Defendant denies Plaintiffs’ characterization of “registered” and lacks

knowledge or information sufficient to form a belief about the truth of the other

allegations in paragraph 34, but Defendant admits that Kerlin and Y.S. arrived at a

CBP facility on June 9, 2019 and were processed thereafter.

35. Defendant lacks knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 35, but Defendant denies the

characterizations “forced” and “against their wishes” and “in view of all of the adults

standing nearby”.

36. Defendant lacks knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 36, but Defendant denies the

characterizations about “rifled through” and “grabbed” and avers that Y.S. did not

report any medication or medical conditions upon medical screening.

37. Defendant lacks knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 37, but Defendant avers that Y.S. did

not report any medication or medical conditions upon medical screening.

38. Defendant denies the allegations in paragraph 38 and avers that Y.S. did

not report any medication or medical conditions upon medical screening.

39. Defendant denies the allegations in paragraph 39 and avers that Y.S. did

not report any medication or medical conditions upon medical screening.

40. Defendant denies the allegations in paragraph 40 and avers that Y.S. did

not report any medication or medical conditions upon medical screening.

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41. Defendant lacks knowledge or information sufficient to form a belief about

the truth of the allegations in paragraph 41.

42. The allegations in paragraph 42 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required, Defendant

denies the allegations in paragraph 42 as they do not state or pertain to any state law duty

cognizable under the FTCA and for other reasons, except Defendant admits Kerlin and

Y.S. were in CBP custody at a CBP facility in Clint, Texas from June 9, 2019 until June

18, 2019, during which time Defendant avers that Kerlin and Y.S. were given food,

including hot meals, on a regular basis.

43. The allegations in paragraph 43 constitute allegations as to subject matter

jurisdiction conclusions of law, or Plaintiffs’ characterizations of their complaint to which

no answers are required. To the extent answers are deemed required, Defendant denies

the allegations in paragraph 43 as they do not state or pertain to any state law duty

cognizable under the FTCA and for other reasons, except Defendant avers that U.S.

Border Patrol processed Kerlin and Y.S. on or about June 9, 2019, and each received a

medical screening which included questions regarding medical history and/or need for

medication.

44. The allegations in paragraph 44 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant denies the allegations in paragraph 44 as they do not state or pertain to

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any state law duty cognizable under the FTCA and Defendant specifically denies

the allegation that CBP staff treated any person “horribly.”

45. The allegations in paragraph 45 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant denies the allegations in paragraph 45 as they do not state or pertain to

any state law duty cognizable under the FTCA, and Defendant lacks knowledge or

information sufficient to form a belief about the truth of the allegations in paragraph

45.

46. The allegations in paragraph 46 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant denies the allegations in paragraph 46 as they do not state or pertain to

any state law duty cognizable under the FTCA, and Defendant lacks knowledge or

information sufficient to form a belief about the truth of the allegations in paragraph

46.

47. Defendant admits that on or about June 9, 2019, Kerlin and Y.S. provided

CBP with contact information for their mother, Daysi Villalobos Izaguirre, but

otherwise lacks knowledge or information sufficient to form a belief about the truth

of the allegations in paragraph 47.

48. Defendant lacks knowledge or information sufficient to form a belief about

the truth of the allegations in paragraph 48.

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49. The allegations in paragraph 49 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant denies the allegations in paragraph 49 as they do not state or pertain to

any state law duty cognizable under the FTCA, except Defendant admits Kerlin and

YS were in CBP custody at a CBP facility in Clint, Texas from June 9, 2019 through

June 18, 2019, Defendant CBP denies Plaintiffs’ characterizations of the CBP

facility as a “hielera” or “freezer”, but Defendant lacks knowledge or information

sufficient to form a belief about the truth of the allegations in paragraph 49.

50. The allegations in paragraph 50 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant denies the allegations in paragraph 50 as they do not state or pertain to

any state law duty cognizable under the FTCA, except Defendant admits Kerlin and

YS were in CBP custody at a CBP facility in Clint, Texas from June 9, 2019 through

June 18, 2019, Defendant-CBP denies Plaintiffs’ characterizations of the CBP

facility as a “hielera” or “freezer”, but Defendant lacks knowledge or information

sufficient to form a belief about the truth of the allegations in paragraph 50, and

Defendant avers that Y.S. did not report any medication or medical conditions upon

medical screening.

51. The allegations in paragraph 51 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

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which no answers are required. To the extent answers are deemed required,

Defendant denies the allegations in paragraph 51 as they do not state or pertain to

any state law duty cognizable under the FTCA, except Defendant admits Kerlin and

YS were in CBP custody at a CBP facility in Clint, Texas from June 9, 2019 through

June 18, 2019, Defendant CBP denies Plaintiffs’ characterizations of the CBP

facility as a “hielera” or “freezer”, but Defendant lacks knowledge or information

sufficient to form a belief about the truth of the allegations in paragraph 51.

52. The allegations in paragraph 52 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant denies the allegations in paragraph 52 as they do not state or pertain to

any state law duty cognizable under the FTCA, except Defendant admits Kerlin and

YS were in CBP custody at a CBP facility in Clint, Texas from June 9, 2019 through

June 18, 2019, Defendants admit that Kerlin and Y.S. were held in facilities for

unaccompanied female children, but Defendant lacks knowledge or information

sufficient to form a belief about the truth of the allegations in paragraph 52.

53. The allegations in paragraph 53 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant denies the allegations in paragraph 53.

54. The allegations in paragraph 54 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

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which no answers are required. To the extent answers are deemed required,

Defendant denies the allegations in paragraph 54.

55. The allegations in paragraph 55 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant lacks knowledge or information sufficient to form a belief about the truth

of the allegations in paragraph 55.

56. The allegations in paragraph 56 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant lacks knowledge or information sufficient to form a belief about the truth

of the allegations in paragraph 56.

57. The allegations in paragraph 57 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant lacks knowledge or information sufficient to form a belief about the truth

of the allegations in paragraph 57.

58. The allegations in paragraph 58 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant lacks knowledge or information sufficient to form a belief about the truth

of the allegations in paragraph 58.

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59. The allegations in paragraph 59 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant denies the allegations in paragraph 59 except that Defendant avers that

Kerlin and Y.S. were given food, including hot meals, on a regular basis.

60. The allegations in paragraph 60 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant lacks knowledge or information sufficient to form a belief about the truth

of the allegations in paragraph 60 except that Defendant avers that Kerlin and Y.S.

were given food, including hot meals, on a regular basis.

61. The allegations in paragraph 61 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant admits CBP provided Kerlin and Y.S. juice. Defendant denies the

allegations about water and avers that water was readily accessible to Kerlin and

Y.S., and Defendant lacks knowledge or information sufficient to form a belief about

the truth about what Kerlin and Y.S. “recall.”

62. The allegations in paragraph 62 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant denies the allegations in paragraph 62 except that Defendant avers that
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Kerlin and Y.S. were given food, including hot meals, on a regular basis.

63. The allegations in paragraph 63 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant lacks knowledge or information sufficient to form a belief about the truth

of the allegations in paragraph 63 but denies the characterization of “cages.”

64. The allegations in paragraph 64 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant lacks knowledge or information sufficient to form a belief about the truth

of the allegations in paragraph 64.

65. The allegations in paragraph 65 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant lacks knowledge or information sufficient to form a belief about the truth

of the allegations in paragraph 65.

66. The allegations in paragraph 66 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant lacks knowledge or information sufficient to form a belief about the truth

of the allegations in paragraph 66.

67. The allegations in paragraph 67 constitute allegations as to subject matter

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jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant lacks knowledge or information sufficient to form a belief about the truth

of the allegations in paragraph 67 but denies the characterization of “cages.”

68. The allegations in paragraph 68 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant lacks knowledge or information sufficient to form a belief about the truth

of the allegations in paragraph 68 but denies the characterization of “cages.”

69. The allegations in paragraph 69 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant lacks knowledge or information sufficient to form a belief about the truth

of the allegations in paragraph 69.

70. The allegations in paragraph 70 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant lacks knowledge or information sufficient to form a belief about the truth

of the allegations in paragraph 70.

71. The allegations in paragraph 71 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,
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Defendant lacks knowledge or information sufficient to form a belief about the truth

of the allegations in paragraph 71 but denies the characterization of “cages.”

72. The allegations in paragraph 72 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their complaint to

which no answers are required. To the extent answers are deemed required,

Defendant lacks knowledge or information sufficient to form a belief about the truth

of the allegations in paragraph 72 but denies the characterization of “cages.”

73. Defendant lacks knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 73 but denies all Plaintiffs’

characterizations made in paragraph 73.

74. Defendant lacks knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 74, but Defendant denies the

hyperbolic use of the words/characterization of “incarceration,” “deficient,” and

“yelled”.

75. Defendant denies the allegations in paragraph 75.

76. Defendant denies the allegations in paragraph 76 and avers that Kerlin

did not sustain any injuries or require any medical attention while in CBP custody.

77. Defendant denies the allegations in paragraph 77 and avers that Kerlin

did not sustain any injuries or require any medical attention while in CBP custody.

78. The allegations in paragraph 78 constitute conclusions of law or

Plaintiffs’ characterizations of their complaint to which no answers are required. To

the extent answers are deemed required, Defendant denies the allegations in
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paragraph 78.

79. The allegations in paragraph 79 constitute conclusions of law or

Plaintiffs’ characterizations of their complaint to which no answers are required. To

the extent answers are deemed required, Defendant denies the allegations in

paragraph 79 and footnote 11, but Defendant admits the New York Times article

cited in footnote 11 exists.

80. The allegations in paragraph 80 constitute Plaintiffs’ conclusions of law

or characterizations of their complaint to which no answers are required. To the

extent answers are deemed required, Defendant lacks knowledge or information

sufficient to form a belief about the truth of the allegations in paragraph 80.

81. Defendant lacks knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 81.

82. The allegations in paragraph 82 constitute Plaintiffs’ conclusions of law

or their characterizations of the complaint to which no answers are required. To the

extent answers are deemed required, Defendant denies the allegations in paragraph

82.

83. The allegations contained in paragraph 83 constitute Plaintiffs’

characterizations of their causes of action or conclusions of law, to which no

response is required. To the extent that answers are deemed required, Defendant

CBP denies the allegations in paragraph 83.

84. Defendant lacks knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 84.

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85. The allegations in paragraph 85 constitute Plaintiff’s conclusions of law

or characterizations of their causes of action to which no answers are required. To

the extent answers are deemed required, Defendant lacks knowledge or information

sufficient to form a belief about the truth of the allegations in paragraph 85.

86. The allegations in paragraph 86 constitute Plaintiffs’ conclusions of law

or characterizations of their causes of action to which no answers are required. To

the extent answers are deemed required, Defendant lacks knowledge or information

sufficient to form a belief about the truth of the allegations in paragraph 86.

87. Defendant lacks knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 87.

88. Defendant lacks knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 88.

89. The allegations in paragraph 89 constitute Plaintiffs’ conclusions of law

or their characterizations of their complaint to which no answers are required. To

the extent answers are deemed required, Defendant lacks knowledge or information

sufficient to form a belief about the truth of the allegations in paragraph 89.

90. The allegations in paragraph 90 constitute Plaintiffs’ conclusions of law

or their characterizations of their causes of action to which no answers are required.

To the extent answers are deemed required, Defendant lacks knowledge or

information sufficient to form a belief about the truth of the allegations in paragraph

90.

91. The allegations in paragraph 91 constitute Plaintiffs’ conclusions of law

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or their characterizations of their causes of action to which no answers are required.

To the extent answers are deemed required, Defendant lacks knowledge or

information sufficient to form a belief about the truth of the allegations in paragraph

91.

92. Defendant admits that Kerlin and Y.S. were transferred from Clint, Texas

to Brownsville, Texas, on or about June 18, 2019, at which time and place they

entered the custody of the Office of Refugee and Resettlement (“ORR”) within HHS

and were placed at a shelter. Defendants deny the remaining allegations contained

in paragraph 92 and Defendant specifically denies the Flores settlement agreement

establishes any relevant legal duty for the United States or otherwise applies in an

action cognizable under the FTCA as suggested in paragraph 92 and in footnote 12.

93. The allegations in paragraph 93 constitute Plaintiffs’ conclusions of law

or their characterizations of their causes of action to which no answers are required.

To the extent answers are deemed required, Defendant denies the allegations in

paragraph 93, except Defendant admits that ORR places children and youth in its

custody into care provider facilities based on child welfare best practices in order to

provide a safe environment and place the child in the least restrictive setting

appropriate for the child’s needs. ORR may place a child in a shelter facility, foster

care or group home (may be therapeutic), staff secure or secure care facility,

residential treatment center, or other special needs care facility.

94. Defendant lacks knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 94, but Defendant avers that Kerlin
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and Y.S. were transferred to ORR custody on June 18, 2019.

95. The allegations contained in paragraph 95 constitute Plaintiffs’

conclusions of law to which no response is required; however, to the extent answers

are deemed required, Defendant denies the allegations in paragraph 95, except

Defendant admits that ORR care provider facilities are state licensed and must meet

ORR requirements to ensure a high level of care.

96. The allegations in paragraph 96 constitute Plaintiffs’ legal conclusions

to which no answers are required. However, to the extent answers are deemed

required, Defendant denies the allegations in paragraph 96, Defendant specifically

denies the Flores settlement agreement establishes any relevant legal duty or

otherwise applies in an action cognizable under the FTCA, but Defendant admits

that ORR care provider facilities are state licensed and must meet ORR requirements

to ensure a high level of care, including classroom education, health care,

socialization/recreation, vocational training, mental health services, access to legal

services, and case management.

97. Defendant lacks knowledge or information sufficient to form a belief about the

truth of the allegations in paragraph 97, except Defendant avers that Kerlin and Y.S. were

transferred to ORR custody on June 18, 2019.

98. Defendant lacks knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 98.

99. Defendant lacks knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 99, and Defendant avers the
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allegations in paragraph 99 may describe conduct by contractors and/or third parties

for whom the United States has no responsibility under the FTCA (28 U.S.C. §

2671).

100. Defendant lacks knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 100, and Defendant avers the

allegations in paragraph 100 may describe conduct by contractors and/or third

parties for whom the United States has no responsibility under the FTCA (28 U.S.C.

§ 2671).

101. Defendant lacks knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 101.

102. Defendant lacks knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 102.

103. Defendant lacks knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 103, and Defendant avers the

allegations in paragraph 103 may describe conduct by contractors and/or third

parties for whom the United States has no responsibility under the FTCA (28 U.S.C.

§ 2671).

104. Defendant lacks knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 104.

105. Defendant denies the allegations in paragraph 105, except Defendant

avers that Y.S. was placed at Southwest El Presidente, in Brownsville, Texas, on

June 18, 2019.

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106. Defendant denies the allegations in paragraph 106, except Defendant

avers that Y.S. was placed at Southwest El Presidente, in Brownsville, Texas, on

June 18, 2019.

107. Defendant lacks knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 107, and Defendant avers the

allegations in paragraph 107 may describe conduct by contractors and/or third

parties for whom the United States has no responsibility under the FTCA (28 U.S.C.

§ 2671).

108. Defendant lacks knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 108, and Defendant avers the

allegations in paragraph 108 may describe conduct by contractors and/or third

parties for whom the United States has no responsibility under the FTCA (28 U.S.C.

§ 2671).

109. Defendant denies the allegations in paragraph 109, except Defendant

avers that Kerlin was placed at Southwest Key Nueva Esperaza on June 18, 2019.

110. The allegations in paragraph 110 constitute Plaintiffs’ legal conclusions

to which no answers are required. However, to the extent answers are deemed

required, Defendant specifically denies the Flores settlement agreement establishes

any relevant legal duty under the FTCA; Defendant admits that Y.S. and Kerlin were

placed at shelters owned and operated by Southwest Key Programs, Inc., which

maintains a cooperative agreement with ORR to provide a high level of care to

unaccompanied children, including classroom education, health care,

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socialization/recreation, vocational training, mental health services, access to legal

services, and case management; and Defendant denies the remaining allegations

contained in paragraph 110.

111. Defendant lacks knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 111, and Defendant avers the

allegations in paragraph 111 may describe conduct by contractors and/or third

parties for whom the United States has no responsibility under the FTCA (28 U.S.C.

§ 2671).

112. Defendant denies the allegations in paragraph 112, and Defendant avers

the allegations in paragraph 112 may describe conduct by contractors and/or third

parties for whom the United States has no responsibility under the FTCA (28 U.S.C.

§ 2671).

113. Defendant lacks knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 113, and Defendant avers the

allegations in paragraph 113 may describe conduct by contractors and/or third

parties for whom the United States has no responsibility under the FTCA (28 U.S.C.

§ 2671).

114. Defendant lacks knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 114, and Defendant avers the

allegations in paragraph 114 may describe conduct by contractors and/or third

parties for whom the United States has no responsibility under the FTCA (28 U.S.C.

§ 2671).
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115. Defendant denies the allegations in paragraph 115, except Defendant

admits that Kerlin was discharged from ORR custody on July 3, 2019 and reunified

with her mother, who lived in Rochester, Minnesota. Defendant avers the allegations

in paragraph 115 may describe conduct by contractors and/or third parties for whom

the United States has no responsibility under the FTCA (28 U.S.C. § 2671).

116. Defendant denies the allegations in paragraph 116, except Defendant

admits that Y.S. was discharged from ORR custody on July 3, 2019 and reunified

with her mother, who lived in Rochester, Minnesota. Defendant avers the allegations

in paragraph 116 may describe conduct by contractors and/or third parties for whom

the United States has no responsibility under the FTCA (28 U.S.C. § 2671).

INJURIES AND DAMAGES TO KERLIN AND Y.S.

117. The allegations in paragraph 117 constitute allegations as to subject matter

jurisdiction, conclusions of law, or Plaintiffs’ characterizations of their causes of action

to which no answers are required. To the extent answers are deemed required, Defendant

denies the allegations in paragraph 117.

CLAIMS FOR RELIEF

First Claim

118. Defendant incorporates, realleges, and repeats its responses to the foregoing

paragraphs 1-117.

119. The allegations in paragraph 119 constitute conclusions of law to which no

answers are deemed required. However, the extent answers are deemed required,

Defendant denies the allegations in paragraph 119.

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120. The allegations in paragraph 120 constitute conclusions of law to which no

answers are deemed required. However, the extent answers are deemed required,

Defendant denies the allegations in paragraph 120.

121. The allegations in paragraph 121a through 121g constitute conclusions of law

to which no answers are deemed required. However, the extent answers are deemed

required, Defendant denies the allegations in paragraph 121a through 121g.

122. The allegations in paragraph 122 constitute conclusions of law to which no

answers are deemed required. However, to the extent answers are deemed required,

Defendant denies the allegations in paragraph 122.

123. The allegations in paragraph 123 constitute conclusions of law to which no

answers are deemed required. However, the extent answers are deemed required,

Defendant denies the allegations in paragraph 123.

Second Claim for Relief

124. Defendant incorporates, realleges, and repeats its responses to the foregoing

paragraphs 1-123.

125. The allegations in paragraph 125 constitute conclusions of law to which no

answers are deemed required. However, the extent answers are deemed required,

Defendant denies the allegations in paragraph 125.

126. The allegations in paragraph 126 constitute conclusions of law to which no

answers are deemed required. However, the extent answers are deemed required,

Defendant denies the allegations in paragraph 126.

127. The allegations in paragraph 127 constitute conclusions of law to which no

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answers are deemed required. However, the extent answers are deemed required,

Defendant denies the allegations in paragraph 127.

128. The allegations in paragraph 128 constitute conclusions of law to which no

answers are deemed required. However, the extent answers are deemed required,

Defendant denies the allegations in paragraph 128.

129. The allegations in paragraph 129 constitute conclusions of law to which no

answers are deemed required. However, the extent answers are deemed required,

Defendant denies the allegations in paragraph 129.

Third Claim for Relief

130. Defendant incorporates, realleges, and repeats its responses to the foregoing

paragraphs 1-129.

131. The allegations in paragraph 131 constitute conclusions of law to which no

answers are deemed required. However, the extent answers are deemed required,

Defendant denies the allegations in paragraph 131.

132. The allegations in paragraph 132 constitute conclusions of law to which no

answers are deemed required. However, the extent answers are deemed required,

Defendant denies the allegations in paragraph 132.

133. Defendant denies the allegations in paragraph 133.

134. Defendant denies the allegations in paragraph 134.

135. Defendant denies the allegations in paragraph 135.

136. The allegations in paragraph 136 constitute conclusions of law to which no

answers are deemed required. However, the extent answers are deemed required,
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Defendant denies the allegations in paragraph 136.

Fourth Claim for Relief

137. Defendant incorporates, realleges, and repeats its responses to the foregoing

paragraphs 1-136.

138. The allegations in paragraph 138 constitute conclusions of law to which no

answers are deemed required. However, the extent answers are deemed required,

Defendant denies the allegations in paragraph 138.

139. Defendant denies the allegations in paragraph 139.

140. Defendant denies the allegations in paragraph 140.

PRAYER FOR RELIEF

141. The allegations in Plaintiffs’ Complaint following the word WHEREFORE on

page 28 contain Plaintiffs’ prayer for relief to which no answer from the United States is

required; however, to the extent an answer is deemed required, the United States denies

that Plaintiffs are entitled to any of the relief they seek against the United States.

AFFIRMATIVE DEFENSES

1. The Court lacks subject matter jurisdiction and/or the United States cannot

be liable because the claim involves circumstances where the United States were it a private

person would not be liable to the claimant in accordance with the law of the state where

the alleged act or omission occurred. 28 U.S.C. §1346(b).

2. The injuries and/or damages alleged in the Complaint, if any, were not

proximately caused by any negligent or wrongful act or omission of any employee of the

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United States acting within the scope of his or her employment with the United States;

therefore, the United States cannot be liable.

3. Plaintiffs cannot recover as they assumed the risk of any injuries or damages

by entering the United States illegally.

4. The injuries and/or damages alleged by the Plaintiffs in the Complaint, if

any, were proximately caused by the intervening and/or superseding acts or omissions of

persons other than an employee or agent of the United States and were not caused by an

act or omission of any employee of the United States acting in the scope of that

employment.

5. In the event the Court finds the United States negligent, which negligence

the United States denies, then the negligence of Plaintiffs exceeded that of the United States

and the Plaintiffs’ claim is therefore barred. In the alternative, Plaintiffs’ own negligence

contributed to Plaintiffs’ injuries and damages and any recovery must be reduced in

proportion to their comparative fault.

6. In the event the Court finds the United States negligent, which negligence

the United States denies, then any recovery by the Plaintiffs from the United States must

be reduced by the comparative fault of Plaintiffs, any comparative fault of any contractor,

and any comparative fault of any other person over whom the United States had no control.

7. Any claim for prejudgment interest is prohibited under 28 U.S.C. § 2674.

8. Plaintiffs’ recovery if any is limited to the amount stated in their

administrative claims. 28 U.S.C. § 2675(b).

9. Plaintiffs cannot recover consequential or special damages under the FTCA.

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10. Plaintiffs’ recovery, if any, is limited by the common and/or statutory law of

the State of Texas or the substantive law of any other state where cognizable acts or

omissions occurred.

11. In the event the United States is found to have been negligent, which negligence

is denied, the United States’s negligence was not a proximate cause of Plaintiffs’ injuries.

12. The Court lacks subject matter jurisdiction and/or the Complaint fails to state

a claim against the United States to the extent that, with respect to any act or omission that

may have given rise to a claim under the FTCA, Plaintiffs failed to present a proper and

complete claim to the appropriate federal agency within 2 years after any such claim

accrued and/or failed to file a complaint within six months of the denial of any such claim,

pursuant to 28 U.S.C. § 2401(b). One purported claim was received by CBP on behalf of

two persons without delineating a sum certain for each person. Plaintiffs failed to present

any claim to ICE a different agency within DHS. Plaintiffs failed to present any claim to

HHS or its agency ORR.

13. Any recovery by Plaintiffs from the United States is subject to the availability

of Congressionally appropriated funds. 42 U.S.C. §233(k).

14. The United States is entitled to an offset for the reasonable value of medical

care or other benefits provided to Plaintiffs by any agency of the United States for or as a

result of Plaintiffs’ alleged injuries.

15. The United States is entitled to an offset for any benefits paid to Plaintiffs as a

result of the events giving rise to this action under any program of the United States.

16. The United States is entitled to an offset for any benefits paid to Plaintiffs as a
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result of the events giving rise to this action from any collateral source.

17. Plaintiffs are barred from recovering damages to the extent they failed to

mitigate their damages.

18. Plaintiffs are not entitled to recover any separate amount for attorney’s fees,

and any attorney’s must be paid out of any recovery by judgment or otherwise. 28 U.S.C.

§2412. Plaintiffs’ counsel may not charge, demand, receive, or collect for services

rendered, fees in excess of 25 per cent of any judgment awarded under the FTCA. 28

U.S.C. §2678.

19. To the extent Plaintiffs seek declaratory, equitable, or non-monetary relief, such

relief is not available under the FTCA. 28 U.S.C. §1346(b)(1).

20. To the extent Plaintiffs seeks punitive damages, such damages are not available

under the FTCA. 28 U.S.C. §2674.

21. Plaintiffs’ claim for costs and disbursements is limited to any taxable costs that

may be awarded to a prevailing party under 28 U.S.C. §1920.

22. There is no jury trial against the United States. 28 U.S.C. §2402.

23. This case should be dismissed or transferred for improper venue and/or

inconvenient forum (forum nonconviens).

24. By failing to present administrative claims to ICE or to HHS, Plaintiffs failed

to join proper agency parties and the claims pertaining to acts or omissions allegedly taken

by, for, or on behalf of those agencies should be dismissed.

25. The United States cannot be liable under other avoidances or affirmative

defenses including but not limited to the doctrines of fraud, illegality, injury by fellow
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servant, and otherwise.

26. The acts or omissions alleged in the complaint are not cognizable under the

FTCA because they are allegations regarding the claims of abuse, negligent supervision,

conditions of confinement, violations of federal regulations or statutes or the United States

Constitution, violations of or noncompliance with the Flores settlement, and otherwise,

and not violations of the substantive tort law of Texas or other state where the alleged acts

or omissions occurred.

27. The complaint fails to state a claim under for assault, battery, negligent

undertaking, negligent or intentional infliction of emotional distress, or otherwise under

Texas state law or the law of any other state where the act or omission may have occurred.

28. The Court lacks subject matter jurisdiction for other reasons.

29. The Complaint fails to state a claim upon which relief can be granted against

the United States for other reasons.

30. The United States reserves the right to plead additional affirmative defenses

which, through investigation and discovery, may become known.

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WHEREFORE, Defendant prays that Plaintiffs take nothing by way of their

Complaint, that judgment be entered against Plaintiffs and in favor of Defendant, for an

order awarding Defendant its costs and disbursements incurred in defense of this action,

and for all other relief to which Defendant may be entitled.

Respectfully Submitted,

Date: January 28, 2022 CHARLES J. KOVATS, JR.

Acting United States Attorney

s/ Friedrich A. P. Siekert

BY: FRIEDRICH A. P. SIEKERT

Assistant U.S. Attorney
Attorney ID Number 142013
600 United States Courthouse
300 South Fourth Street
Minneapolis, MN 55415
Telephone: 612-664-5600
Email: [email protected]

Attorneys for Defendant

United States of America

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