Walding v. United States (955 F. Supp. 2d 759, 2013)

ORDER

XAVIER RODRIGUEZ, District Judge.

On this date, the Court considered the United States’ motion to dismiss Plaintiffs’ Federal Tort Claims Act (“FTCA”) claims for lack of jurisdiction (docket no. 64). The United States asserts that this Court lacks jurisdiction over Plaintiffs’ Twelfth, Thirteenth, and Fourteenth Causes of Action because they fall within the discretionary function and independent contractor exceptions to the FTCA’s waiver of sovereign immunity. After careful consideration, the Court grants the motion.

I. Background

Plaintiffs are eleven young men born in Central America who were detained in the United States by federal agents as undocumented and placed in federal custody pending their immigration court proceedings. Each of the Plaintiffs was a minor at the time of his detention, and each was placed at a facility located in Nixon, Texas (“the Nixon facility”) operated by Away From Home, Inc. (“AFH”). AFH contracted with the federal government to house unaccompanied, undocumented minors while they awaited the final adjudication of their immigration status. Plaintiffs allege that they suffered “grave and repeated sexual, physical and emotional abuse” at the facility. Plaintiffs have sued a number of individuals and entities as a result of the abuse. This Order deals with the claims asserted against the United States under the FTCA.

Under the doctrine of sovereign immunity, the federal government cannot be sued in its capacity as a sovereign unless it consents to be sued. See United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). For the federal government to consent to be sued, Congress must waive sovereign immunity by explicitly extending to federal courts subject-matter jurisdiction over a specified cause of action. Id. The FTCA waives sovereign immunity and allows private individuals to sue the federal government for the torts of its employees by granting federal courts exclusive subject-matter jurisdiction over

civil actions on claims against the United States, for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1). However, the FTCA contains a number of exceptions to this waiver of sovereign immunity, including the discretionary function and independent contractor exceptions at issue here. In determining whether subject-matter jurisdiction exists, “[cjourts must strictly construe all waivers of the federal government’s sovereign immunity, [resolving] all ambiguities in favor of the sovereign.” Linkous v. United States, 142 F.3d 271, 275 (5th Cir.1998).

The Twelfth Cause of Action, which will be referred to as the “negligent supervision” claim, alleges that certain federal defendants were negligent in carrying out their legal duties to ensure the proper treatment, care, welfare, safety and protection of the minors detained at the Nixon facility. Sixth Am. Compl. ¶ 277. The United States asserts that the discretionary function exception to the waiver of sovereign immunity applies to this claim.

The Thirteenth Cause of Action, which will be referred to as the “negligent selection” claim, alleges that certain individual federal employees were negligent in investigating, selecting, screening and contracting with and/or awarding a grant to AFH to detain the unaccompanied minors, ¶ 284, and that certain federal employees were further negligent in training, supervising, monitoring, and controlling their employees, agents and/or contractors at the Nixon Facility, ¶ 285. Defendant United States argues that the discretionary function exception also applies to this claim.

The Fourteenth Cause of Action alleges that the United States is liable for the negligence of AFH and its employees because AFH was performing an exclusive government function in detaining the unaccompanied minors on behalf of the government. Sixth Am. Compl. ¶ 292. The United States asserts that the independent contractor exception to the waiver of sovereign immunity applies to this claim.

The Court previously ordered that Plaintiffs were entitled to discovery pertaining to the United States’ asserted exceptions. That discovery has been completed, and thus these issues are ripe for disposition.

II. Factual Summary

On March 1, 2003, the Homeland Security Act of 2002 transferred functions under the U.S. immigration laws regarding the care and placement of “unaccompanied alien children” (sometimes referred to as “UAC”) from the INS to the Director of the Office of Refugee Resettlement (“ORR”). 6 U.S.C. § 279. ORR is an agency within the Administration for Children and Families (“ACF”) operating division of the Department of Health and Human Services (“DHS” or “DHHS”). ORR created a new office called the Division of Unaccompanied Children’s Services (“DUCS”) to carry out these responsibilities. DUCS has developed a network of care options for unaccompanied minors, including shelter care, staff secure, foster care, and residential treatment care.

Although INS had existing facilities in place, most of these were detention facilities, and ORR/DUCS wanted to use alternatives such as shelter care facilities (like Nixon) in order to better comply with the Flores Settlement Agreement. Tota depo. at 24. The 1997 Flores Settlement Agreement was the result of the Flores v. Reno lawsuit brought by unaccompanied minors detained on suspicion of being deportable challenging the constitutionality of the INS’s policies, practices, and regulations regarding the detention and release of such minors. The settlement agreement “sets out nationwide policy for the detention, release, and treatment of minors in the custody of INS.” The INS agreed not to place a minor in a secure facility if there were less restrictive alternatives available and appropriate in the circumstances. The Flores Agreement also includes a list of “minimum standards for licensed programs,” which requires that facilities comply with all applicable state child welfare laws and regulations and provide certain enumerated services, such as counseling and education, for the minors.

Shortly after the March 2003 transfer to ORR of responsibilities relating to unaccompanied alien children, Don Rains of AFH called Ken Tota at ORR about providing shelter care services. On April 16, 2003, Ken Tota mailed Don Rains a letter stating, “Due to exigent circumstances, the Office of Refugee Resettlement (ORR), Department of Health and Human Services (HHS) would like to request your submission of an application for the provision of shelter care services for the period May 1, 2003-April 30, 2004.” PI. Ex. 2;Docket no. 192 Ex. 1. AFH submitted an application.

On May 6, Deborah Kellaher, the Director of the Division of Grants Policy (“DGP”), forwarded the urgent “unsolicited proposal” to Nguyen Van Hanh, the Director of ORR, stating that it appeared to qualify as an unsolicited application under the definitions set forth in the ACF Grants Administration Manual (“GAM”) sections 2.02.407H and 2.11.404A. PI. Ex. 3. The letter noted that most grant awards result from a competitive review process in response to a program announcement published in the Federal Register, but “on rare occasions, if an unsolicited application is determined to be of outstanding merit, it may receive consideration for funding without competition.” Kellaher asked Van Hanh to “review the application to determine whether or not it is within the scope of any program announcement issued or expected to be issued within ORR. If not, and you determine that the application is of such outstanding and unique merit that it should be considered for funding, follow the procedures set forth in the ACF GAM Section 2.11 to convene a panel.”

Kellaher noted that, if ORR decided to fund the application, the award required “the written approval of the Assistant Secretary for Children and Families and the Assistant Secretary for Administration and Management (ASAM) through the Grant Review Process.” Further, she wrote, “In accordance with Departmental Grants Policy Directive (GPD) 2.04, urgent and unsolicited grant applications must be published in the Federal Register simultaneously with the award of grants and must include at minimum: 1. Recipient name; 2. Amount of Award; 3 Project period; 4. Reason(s) for no competition; and 5. Name and address of the official to be contacted for more information on the award.” “The grant award package, including the Federal Register notice, must be submitted to the Division of Grants Policy for review and clearance by the Chief Grants Management Officer prior to submission to the Assistant Secretary for Children and Families.”

On May 7, 2003, Van Hanh, Director of ORR, sent a letter to the Director of Office of Planning, Research and Evaluation (“OPRE”), to inform him that ORR “would like to award an urgent application from [AFH] due to compelling circumstances.” PI. Ex. 4; Docket no. 192 Ex. 2. The letter noted that, as a result of the transfer of responsibility for unaccompanied minors from the INS to ORR, ORR was “now faced with the urgent need to locate appropriate shelter care facilities as an alternative to secure detention” or risk violating the Flores settlement agreement.

The letter stated that DUCS was “facing an impending crisis” because the number of apprehensions had increased significantly during the past few weeks and the number of children in custody had risen to 650 per day. This increase was attributed to an increase in apprehensions in spring and summer, a reduction in transport flights to return children to their country of origin, and chicken pox outbreaks in three facilities restricting all releases. The letter noted that the influx was straining current facilities and risked violating Flores by not having an appropriate number of shelter beds to ensure that no minor inappropriately remained in secure custody for more than 72 hours. To “alleviate this crisis,” Van Hanh wrote, DUCS identified the Nixon facility, which was fully licensed, was in excellent condition, had expansion possibility, had a strategic location in the San Antonio area, and was “truly a one of a kind find.” Id. (ORR000618). Van Hanh wrote that bringing Nixon online would allow ORR to reduce its reliance on three secure detention facilities in the area. Van Hanh attached AFH’s proposal for the provision of shelter care to sixteen children, noting that the cost per day in the proposed budget was below the national average, and that the proposal was thorough and well within the scope of activities supported by ORR. Van Hanh therefore asked that a panel be convened to review the application for its suitability under the Catalog of Federal Domestic Assistance number 93-676 and to send a copy of the letter convening the panel to the DGP.

On May 22, 2003, the Director of the OPRE notified Van Hanh that it had paneled the unsolicited proposal submitted by AFH. All of the panelists found the proposal technically acceptable and provided comments on the strengths and weaknesses of the proposal. Docket no. 192, Ex. 6. The letter also stated, “If your office wishes to fund this application, you should prepare a decision memorandum package for the Assistant Secretary for the Administration for Children and Families recommending funding, attaching the panel reviews’ scores and comments, the memorandum from your office requesting the review, the memorandum from OPRE summarizing the panel results, a copy of the application and any other appropriate documents or evaluation materials.” Id.

Van Hanh then submitted a decision memorandum package to the Assistant Secretary for Children and Families on May 29, 2003. PI. Ex. 5. In his letter, Van Hanh repeated his assertions that DUCS was “facing an impending crisis,” noting that the number of children in custody exceeded the number of available beds and additional placement capacity was “especially critical in the San Antonio area.” The memo further states that the ORR Director “forwarded this application to the Division of Grants Policy (DGP) via the ORR transmittal memorandum,” DGP determined that the application qualified “as an urgent application in accordance with the ACF GAM,” OPRE conducted the required panel review, and all of the panelists found the proposal technically acceptable. ORR recommended that the application be funded in the amount of $797,152. According to the letter, the package included AFH’s application, the ORR memo to DGP, the DGP memo to ORR, the ORR memo to OPRE, and the OPRE Memo with panelists’ comments. The Assistant Secretary approved the recommendation on June 1, 2003.

On July 16, 2003, Van Hanh sent a letter to Rains “to advise [him] that [his] proposal for the provision of shelter care services [had] been accepted.” PI. Ex. 6. The Financial Assistance Award (“FAA”) document, displaying an award # 90XR0006, was signed July 16, 2003, in the amount of $797,152. PI. Ex. 6. It shows a project period of July 1, 2003 to June 30, 2006, with a budget period of July 1, 2003 to June 30, 2004. PI. Ex. 6. Ken Tota testified that the FAA signals the beginning of the grant and is the funding document. Tota depo. at 68.

ORR chose to use a cooperative agreement as the structure for the award to AFH. A cooperative agreement is an instrument contemplated by and awarded in accordance with the Federal Grant and Cooperative Agreement Act, 31 U.S.C. §§ 6301-6308. An executive agency uses a cooperative agreement as the legal instrument reflecting a relationship between the United States Government and a recipient when “(1) the principal purpose of the relationship is to transfer a thing of value to the State, local government, or other recipient to carry out a public purpose of support or stimulation authorized by a law of the United States instead of acquiring (by purchase, lease, or barter) property or services for the direct benefit or use of the United States Government; and (2) substantial involvement is expected between the executive agency and the ... recipient when carrying out the activity contemplated in the agreement.” 31 U.S.C. § 6305.

Tota testified that, after the FAA was issued, the parties began negotiating the Cooperative Agreement. Tota depo. at 69-70. Because this type of agreement and ORR’s responsibilities were new, negotiations took a long time. Tota depo. 94-98. Tota signed the Cooperative Agreement on behalf of ORR on March 3, 2006. The Cooperative Agreement states it is for the term July 1, 2005 to June 30, 2006. Docket no. 64 (Tota De cl. Ex. 4). Under the Cooperative Agreement, AFH agreed to provide shelter care and other child welfare related services in a state-licensed shelter care program to unaccompanied alien children in the least restrictive setting possible, in accordance with state licensing provisions, ORR/DUCS policies and procedures, and the Flores Agreement.

As noted, the original award to AFH was for a three-year project period from July 1, 2003 to June 30, 2006. PI. Ex. 6. Annual renewals were required during that project period, but they were on a non-competitive basis. The original project award expired on June 30, 2006. AFH received an extension for the period of July 1, 2006 to September 30, 2006. Docket no. 192, Def. Ex. 37.

In August 2006, ORR became aware that a child recently transferred from Nixon reported that he was sexually abused at Nixon. The child did not identify the alleged perpetrator and then recanted. PI. Ex. 41. In September 2006, ORR learned from the Texas Department of Family and Protective Services (“TDFPS”), which is responsible for child care licensing in Texas, that it had investigated an incident of sexual abuse at Nixon in April 2006. PI. Ex. 42. One of the female staff was caught in the restroom with a male resident engaging in sexual activity. AFH did not report this incident to ORR. The staff member immediately resigned, and the child was no longer at the facility when ORR learned of the incident. AFH was cited by TDFPS for abuse and for failure to report the incident to TDFPS. PI. Ex. 43. The United States asserts that, because this was the first reported incident of its kind at Nixon, and the employee was no longer on staff, ORR concluded that it could work with AFH to prevent this sort of failure in the future.

As noted, in 2006, the award became competitive. Tota dep. at 108. ORR prepared a program funding announcement for a sixty-month project with five, 12-month budget periods, beginning October 1, 2006. AFH and four or five other facilities applied. Docket no. 192, Def. Ex 31 (AFH application); Tota depo. at 145. The applications were reviewed by a panel, and AFH received the highest score. Docket no. 64, Tota Decl. ORR awarded the cooperative agreement to AFH. Docket no. 192, Def. Ex. 38 (letter from Martha Newton, ORR Director, to Rains that his FY 2007 application had been approved for funding, and including the FAA for the project period of October 1, 2006 to September 30, 2011, and a budget period of October 1, 2006 to September 30, 2007.) The FAA was executed on November 1, 2006 for award # 90ZU0040. Def. Ex. 38.

On November 5, 2006, several residents escaped from Nixon. Off-duty staff who had been drinking were called to the facility to assist. The residents were gathered together, and problems ensued. Staff members inappropriately restrained and injured two residents, including Plaintiff J.M.R. The local sheriff was called to investigate, and criminal charges were brought against one of the staff involved in the improper restraint.

On February 10, 2007, ORR became aware of allegations of sexual abuse of several minor residents at Nixon by AFH direct care worker Belinda Leal. Docket no. 192, Def. Ex. 24. On February 14, 2007, ORR suspended placements at the facility. Id. ORR increased its monitoring and had its Federal Field Specialist (“FFS”) make unannounced visits. Id. On February 28, the ORR Director notified AFH that it would remove all children from the facility. Id.; PI. Ex. 158. FFS De La Cruz was designated as the functional administrator of the facility and supervisor beginning March 2, 2007. PI. Ex. 146; PI. Ex. 154. By March 7, 2007, all children were transferred out of Nixon.

On March 7, 2007, Maureen Dunn, the Director of DUCS, sent a letter to Rains stating, “This letter is to inform you that, at this time, the Office of Refugee Resettlement has decided to continue the grant award to Away From Home, Inc. for the placement and care of unaccompanied alien children (UAC). We now ask that you prepare a revised budget with an appropriate staffing plan to accommodate 48 beds.” PI. Ex. 22. However, as ORR reviewed AFH’s files and learned of more issues, by April it did not think it would continue the grant award to Nixon. On June 25, 2007, ORR terminated the grant, stating that AFH failed to protect the children in its care from physical and sexual abuse and failed to report findings of abuse to ORR in a timely manner. Docket no. 64 (Tota Decl. Ex. 6); PL Ex. 158.

III. Analysis — Discretionary Function Exception

The United States contends that the discretionary function exception applies to Plaintiffs’ claims for negligent selection and negligent supervision. The discretionary function exception provides that liability under the FTCA does not apply to claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). The Supreme Court discussed the discretionary function exception in United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991):

The exception covers only acts that are discretionary in nature, acts that “involv[e] 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. The requirement of judgment or choice is not satisfied if a “federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,” because “the employee has no rightful option but to adhere to the directive.” Furthermore, even “assuming the challenged conduct involves an element of judgment,” it remains to be decided “whether that judgment is of the kind that the discretionary function exception was designed to shield.” Because the purpose of the exception is to “prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort,” when properly construed, the exception “protects only governmental actions and decisions based on considerations of public policy.”

Id. at 822-23, 111 S.Ct. 1267 (citations omitted). With regard to the violation of regulations, the Gaubert court stated:

if a regulation mandates particular conduct, and the employee obeys the direction, the Government will be protected because the action will be deemed in furtherance of the policies which led to the promulgation of the regulation. If the employee violates the mandatory regulation, there will be no shelter from liability because there is no room for choice and the action will be contrary to policy. On the other hand, if a regulation allows the employee discretion, the very existence of the regulation creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations.

Id. at 324, 111 S.Ct. 1267. “The focus of the inquiry is not on the agent’s subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis.” Id. at 325, 111 S.Ct. 1267.

Applying these principles, the Supreme Court has developed a two-step test to determine whether the discretionary-function exception applies. St. Tammany Parish v. FEMA, 556 F.3d 307, 323 (5th Cir.2009). First, the court inquires whether the challenged actions were discretionary, or whether they were instead controlled by mandatory statutes or regulations — in other words, whether the conduct is a “matter of choice for the acting employee.” Id. Second, if the conduct involves such discretion, the court must determine whether it is the kind of judgment that the discretionary function exception was designed to shield. Id. The exception was designed to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy and thus protects only governmental actions and decisions based on considerations of public policy. Id.

A. Applicable Standard

The United States moved for summary judgment on Plaintiffs’ Twelfth and Thirteenth Causes of Action, based on the discretionary function exception. However, relying primarily on Hix v. U.S. Army Corps. of Eng’rs, 155 Fed.Appx. 121, 128 n. 8 (5th Cir.2005), this Court previously held that this motion should be decided under the standard applicable to motions under Rule 12(b)(1) rather than motions for summary judgment because the jurisdictional question is not intertwined with the merits. See docket no. 115 at 6-7; docket no. 127 at 3.

In their Response to the United States’ motion, Plaintiffs argue that the applicable standard should be 12(b)(6) or Rule 56. The Fifth Circuit has indicated that the factors in § 1346(b)(1) and questions of duty going to the underlying tort claim are merits-type issues that must be decided under a 12(b)(6) or Rule 56 standard. See Montez v. Dept. of the Navy, 392 F.3d 147 (5th Cir.2004); Tindall v. United States, 901 F.2d 53 (5th Cir.1990). However, it has also held that the merits and the jurisdictional issue under § 2680(a), the discretionary function exception, are not so intertwined as to prevent separate consideration and decision of the jurisdictional issue. Hix v. U.S. Army Corps. of Eng’rs, 155 Fed.Appx. 121, 128 n. 8 (5th Cir.2005); Ford v. Am. Motors Corp., 770 F.2d 465, 468 (5th Cir.1985) (“The merits and the jurisdictional issue were not so intermeshed as to prevent the separate consideration and decision of the jurisdiction question, albeit that decision is based in large measure on facts relevant to the merits.”).

Since the Court’s prior orders, there have been no intervening controlling decisions of the Fifth Circuit or Supreme Court that would change the Court’s conclusion. Rather, intervening cases support the conclusion that evaluation of the discretionary function exception should be conducted under the 12(b)(1) standard as long as it does not require resolving disputed facts that overlap with the merits. E.g., Lopez v. United States Immigration & Customs Enforcement, 455 Fed.Appx. 427, at 431-32 (5th Cir.2011) (noting that district court converted United States’ motion for summary judgment to a Rule 12(b)(1) motion); Patel v. United States, 398 Fed.Appx. 22, at 28 (5th Cir.2010) (in reviewing discretionary function exception dismissal, stating that “only Patel’s complaint, as supplemented by undisputed facts and resolved disputed facts, may be considered in a dismissal of a complaint for lack of subject matter jurisdiction.”).

In ruling on a motion under Rule 12(b)(1), the Court “has the power to dismiss for lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Freeman v. United States, 556 F.3d 326, 334 (5th Cir.2009). “Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction — its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Id. at 412-13. In short, no presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Id. at 413. Further, materials such as affidavits and regulations can be considered when relevant to the issue of jurisdiction. Poindexter v. United States, 171 F.2d 231 (5th Cir.1985).

It remains an open question which party retains the ultimate burden of proof on the applicability of the discretionary function exception. St. Tammany Parish v. FEMA, 556 F.3d 307, 315 n. 3 (5th Cir.2009). Regardless of which party bears the ultimate burden of proof, at the pleading stage, the plaintiff must allege a claim that is facially outside the exception. Id. At the summary judgment stage, the plaintiff must submit evidence that the claim is facially outside the exception. Morales v. United States, 371 Fed.Appx. 528, 532 (5th Cir.2010).

B. Thirteenth Cause of Action — Negligent Selection

Plaintiffs Thirteenth Cause of Action for negligent selection alleges that federal employees Martha Newton, Maureen Dunn, Susana Ortiz-Ang, James De La Cruz, Jose Gonzalez, Jose Mungia, Marc Moore, and Tsegaye Wolde have “the legal duty to select appropriate detention facilities,” and that “Newton, Dunn, and Ortiz-Ang were negligent in investigating, selecting, screening and contracting and/or awarding a grant to Away From Home, Inc. to detain the unaccompanied minors.” Sixth Am. Compl. ¶¶282,284.

1. Negligent Investigating, Selecting, and Screening of AFH

By statute, ORR is responsible for “identifying a sufficient number of qualified individuals, entities, and facilities to house unaccompanied alien children.” 6 U.S.C. § 279(b)(1)(F). However, other than requiring facilities to be licensed by the state, no statute, regulation, or agency policy specifically defines the term “qualified.” Therefore, section 279 leaves the determination of whether an individual, entity, or facility is “qualified” to ORR’s discretion.

The United States asserts that, to meet its obligation to provide shelter care services with the resources provided, ORR enters into contractual arrangements with non-governmental organizations in key areas of the United States where the largest numbers of these children are found. The United States asserts that ORR has not promulgated regulations regarding the advertising and award of cooperative agreements, but instead uses the DHHS’s Awarding Agency Grants Administration Manual (“AAGAM” or “GAM”) and the regulations at 45 C.F.R. Part 74 (“Uniform Administrative Requirements for Awards and Subawards to Institutions of Higher Education, Hospitals, Other Nonprofit Organizations, and Commercial Organizations”) for general guidance.

The United States argues that the decision to enter into a cooperative agreement with a nongovernmental entity and the selection of AFH as the recipient of the contract were products of the exercise of ORR’s discretion and did not violate any identifiable statutes, regulations, policies, or directives. Further, the United States argues that the decision to enter into the cooperative agreement was both susceptible to and grounded in policy considerations because ORR makes a determination concerning how best to use limited economic resources to meet its mandate. The United States contends that courts repeatedly recognize that awarding a government contract to a non-governmental entity is inherently discretionary and is thus protected by the discretionary function exception. Further, the United States argues, a decision that ORR should not have entered into the cooperative agreement would be the type of judicial second-guessing of decisions grounded in policy that the exception is designed to prevent. The Court agrees.

In this case, it is clear that the ultimate choice of facility for housing unaccompanied alien children is a decision vested with policy considerations. The operative statute gives ORR discretion to identify qualified facilities to house the children, make placement determinations, and implement the placement determinations. 6 U.S.C. § 279. It also gives ORR authority to implement policies with respect to the placement of the children. 6 U.S.C. § 279(b)(1)(E). ORR employees are given discretion in choosing an award recipient and imposing conditions on awards. See, e.g., 45 C.F.R. § 74.14 (awarding agency may impose additional requirements if applicant or recipient has a history of poor performance, has a management system that does not meet the standards prescribed, has not conformed to the terms and conditions of a previous award, or is not otherwise responsible). In addition, such decisions necessarily involve the sorts of policy choices protected by the discretionary function exception.

In their brief, Plaintiffs complain that “ORR failed to investigate alternative sources when it knew, from documentation submitted by AFH, that (1) AFH was a for-profit company; (2) other than operating the Hays County Secure Juvenile Detention Facility for one year (it is not known when), the company had no history of caring for children, much less vulnerable children with unique needs like UACs; (3) other than the Director, the company had no staff — experienced or otherwise— hired and capable of caring for UACs at the time of its application; and (5) [sic] the facility was first licensed in May 12, 2003, after negotiations began with ORR, one month after ORR invited AFH to submit a proposal, and just two months prior to the grant award.” Docket no. 190 at 14.

However, Plaintiffs cite no mandatory policy or regulation that would have limited ORR’s discretion to award the grant to AFH in spite of any of those factors. The only mandatory requirement for selection named by any witness was the requirement that AFH receive its State license. But it is undisputed that AFH received its license before being awarded the grant and before housing any children. The other concerns raised by Plaintiffs are of the type that ORR had discretion to evaluate in determining whether AFH was an appropriate facility.

Based on the case law and the record, the Court must conclude that ORR’s decision to enter into a cooperative agreement, its investigation, selection of, and contracting with AFH, and its placement of the minors at AFH were the types of discretionary decisions that involve policy judgments as contemplated by the discretionary function exception. Guile v. United States, 422 F.3d 221, 231 (5th Cir.2005) (“[A] decision to hire a contractor and the choice of contractor are policy-based discretionary decisions.”) (citing Williams v. United States, 50 F.3d 299, 310 (4th Cir. 1995)). Cf. Ashford v. United States, 463 Fed.Appx. 387, 395 (5th Cir.2012) (citing Cohen v. United States, 151 F.3d 1338, 1344 (11th Cir.1998) (“Deciding how to classify prisoners and choosing the institution in which to place them are part and parcel of the inherently policy-laden endeavor of maintaining order and preserving security within our nations’ prisons.”)).

2. Negligent Contracting or Awarding of the Grant and Grant Administration

Recognizing that ORR had discretion to make the decision that AFH was an appropriate facility, Plaintiffs focus primarily on specific regulations on government contracting and grant administration. Plaintiffs contend that ORR violated mandatory acquisition regulations designed to foster open competition in contracting with AFPI, and violated grant administration regulations throughout its relationship with AFH.

a. Violation of Acquisition Regulations

Plaintiffs point to the general policy of full and open competition in government contracting, and note that ORR’s award to AFH in 2003 was on a non-competitive basis. They contend that ORR violated federal acquisition regulations (“FAR”) by commencing negotiations with AFH before developing its written justification for a non-competitive award in violation of FAR § 6.303-l(a) and failing to meet the requirements for the justification once it developed the justification, in violation of FAR 6.303-2. Plaintiffs argue that the justification and decision “either patently omitted required information or provided less than truthful statements about ORR’s efforts to find competitive options” and failed to meet the specific regulatory requirements.

Plaintiffs further assert that ORR failed to publish the notice of the award to AFH in the Federal Register in a timely manner, in violation of AAGAM § 2.04.104A-5(c). Plaintiffs argue that policies favoring competition and requiring justification for non-competitive awards exist to prevent “precisely the type of rushed, uninformed award that happened in this case.” Docket no. 190 at 14. Plaintiffs contend that, discretion as to the substance of the ultimate decision does not confer discretion to ignore the required procedures of decisionmaking, and that ORR’s failure to comply with the mandatory acquisition requirements renders its actions non-discretionary.

As an initial matter, the Court notes that the regulations that Plaintiffs claim were violated speak to the duties of the “contracting officer,” but it does not appear that any of the named individuals in Count Thirteen was a contracting officer with regard to the award of the grant to AFH in 2003. Nor have Plaintiffs shown that any of these individuals was directly involved in the initial decision to contract with AFH in 2003. However, the United States has not raised this issue.

The United States contends that the requirements cited by Plaintiffs were either not mandatory or were not violated, or both, and that even if any regulations were violated, such violations were not causally related to the Plaintiffs’ injuries. The United States argues that “full and open competition” is not required if “the agency’s need for the supplies or services is of such an unusual and compelling urgency that the Government would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits bids or proposals.” FAR § 6.302 — 2(a)(2). The United States contends that the record clearly shows that ORR’s relationship arose due to an unusual and compelling urgency, and that the cooperative agreement was based on this exception to competition.

The Court agrees with the United States that the 2003 award was made on the basis of unusual and compelling urgency. The letter from ORR Director Van Hanh to the Assistant Secretary seeking approval of the AFH grant states that the ORR Director forwarded the application to the DGP, and the application was determined by the DGP to qualify as an urgent application in accordance with the GAM. PI. Ex. 5; Def. Ex. 3. The Assistant Secretary approved the recommendation to fund the application as an urgent application, in the amount of $797,152, on June 1, 2003. And the Federal Register notice states that “notice is hereby given that a urgent grant award is being made to [AFH] in the amount of $797,152 in FY03, to provide shelter care and child welfare services to alien minors transferred into the custody of’ ORR. 68 Fed.Reg. 51292-02. Further, the United States is correct, and Plaintiffs do not dispute, that FAR § 6.302-2 and the GAM recognize urgent awards as an exception to the requirement of maximum competition. Def. Ex. 5 GAM § 2.04.104A-3.

Although it primarily argues that ORR complied with the FAR, the United States also contends that the FAR do not apply to the Cooperative Agreement. Plaintiffs contend that the FAR applies, asserting generally that “ORR must also comply with the Federal Acquisition Regulations” and citing the deposition of Ken Tota. Although Plaintiffs correctly cite to provisions in the FAR that make it applicable to executive agencies, see FAR §§ 1.101, 1.301, Plaintiffs overlook the fact that the FAR do not apply to all kinds of contracts. Rather, the FAR apply to only acquisitions of goods and services.

Numerous statutes and regulations, including the FAR and DHHS’s own acquisition policies and procedures that conform to the FAR, distinguish between acquisition and assistance through grants and cooperative agreements. See, e.g., 48 C.F.R. § 307.7001 (distinction between acquisition and assistance); 31 U.S.C. § 6301-6308; see also Chem Serv. v. Envt’l Monitoring Sys. Lab., 12 F.3d 1256, 1259 n. 5 (3d Cir.1993) (“The Federal Acquisition Regulation (“FAR”), 48 C.F.R. § 1 et seq. (1992), governs the acquisition of supplies or services by all executive agencies. The FAR covers procurement contracts, but does not cover grants or cooperative agreements as defined by 31 U.S.C. § 6301 et seq.”).

FAR § 1.104 states that “[t]he FAR applies to all acquisitions as defined in Part 2 of the FAR, except where expressly excluded.” (Emphasis added). Acquisitions are defined in Part 2: Acquisition means the acquiring by contract with appropriated funds of supplies or services (including construction) by and for the use of' the Federal Government through purchase or lease, whether the supplies or services are already in existence or must be created, developed, demonstrated, and evaluated. FAR § 2.101(b)(2). Contract means “a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds and that, except as otherwise authorized, are in writing Contracts do not include grants and cooperative agreements covered by 31 U.S.C. 6301, et seq.” Id. (emphasis added). It is undisputed that the agreement here is a cooperative agreement, and that it meets the definition in § 6305. Accordingly, it is not governed by the general FAR provisions cited by Plaintiffs.

Ken Tota’s deposition testimony, cited by Plaintiffs, is not to the contrary. Plaintiffs cite his deposition at page 169, where he agreed that DHHS/ORR is required to comply with the FAR. However, that fact is not in dispute. The question is whether the FAR provisions cited by Plaintiffs apply to this particular cooperative agreement, and they do not. Therefore, Plaintiffs’ arguments that ORR violated various requirements of the FAR with regard to the Cooperative Agreement must fail.

With regard to publishing the notice in the Federal Register, the United States does not dispute that the AAGAM applies. The AAGAM states that “[a] Federal Register notice may be required as a means of notifying the public of the decision to make a single-source award.” PI. Ex. 7; Docket no. 192, Ex. 5. The AAGAM also states that the notice should be published as much in advance of the award as possible, but “must be published no later than the date of the award.” PI. Ex. 7. The parties do not provide the Court with the entire Manual, but nothing in the submitted portion states that the award may not be granted until the notice is published, nor does it state that failure to publish the notice invalidates an award.

The United States argues that it complied with the AAGAM requirement to publish notice in the Federal Register. It states that the FAA was signed on September 12, 2003, while the notice appeared in the Federal Register on August 25, 2003. 68 Fed.Reg. 51292-02. However, the FAA cited by the United States is for a $1.5 million award, which was awarded to AFH after it requested additional funding in September. Def. Ex. 7. The Federal Register notice refers to the original award of $797,152. The FAA for that award amount is dated July 16, 2003. PI. Ex. 6. Thus, the Federal Register notice was published after the initial award but before the revised award. To the extent that the original award of $797,152 was superseded by the revised $1.5 million award, any defects in publishing the notice after the award were rendered moot and could not have caused any harm to Plaintiffs. Although the August 25 Federal Register notice contained the lesser dollar amount, it nevertheless sufficiently fulfilled the purpose of notifying the public of the decision to make a single-source award. Therefore, as noted by the United States, any defects in the notice could not have caused any harm to Plaintiffs.

Even if ORR violated the GAM by failing to publish the notice of the award in the Federal Register before or simultaneously with the original award and even if it was mandatory, the violation of such a procedural requirement that does not inform or otherwise affect the agency’s exercise of discretion does not negate application of the discretionary function exception. In Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), the Supreme Court held that issuing a product license without first receiving data that the manufacturer must submit showing how the product matched against safety regulations, which was required as a precondition to licensing, was not discretionary. Thus, proof that the product complied with safety standards was required before the agency could license the vaccine. But Plaintiffs point to nothing about the requirement to publish the notice of award in the Federal Register, which may be done at the same time the decision is made, that would affect the validity of the decision to make the award. The Fifth Circuit has noted that the statutory or regulatory violation complained of may be evidence of negligence in the performance of a duty. Freeman v. Unit ed States, 556 F.3d 326, 335 (5th Cir. 2009). Along those lines, in Berkovitz, the challenged act was licensing an unsafe vaccine, and the violation of the requirement of receiving safety compliance data was directly relevant to that action. The failure to meet the precondition constrained the agency’s exercise of discretion. In contrast, the injury complained of by Plaintiffs here is the decision to award the contract to AFH, and the Plaintiffs have failed to show that the failure to publish the notice of the award in any way constrained ORR’s discretion in choosing to make the award, that it in any way rendered the decision negligent, or that, as a result of the failure, ORR’s decision to award the grant to AFH otherwise exceeded the scope of ORR’s authority. See Spotts v. United States, 613 F.3d 559, 569 (5th Cir.2010) (indicating that the nondiscretionary duties that the government is alleged to have violated must constrain the agency’s discretion).

Plaintiffs cite no FTCA case that states that violations of such procedures designed to ensure competition, efficiency, or uniformity in government contracting, but that would not have prohibited the ultimate decision made or otherwise constrained the employee’s discretion in making that decision, vitiates the discretionary function exception. Violations of such procedures could be an abuse of discretion, but such abuses would not render the ultimate decision non-discretionary. See In re Katrina Canal Breaches Litigation, 696 F.3d 436, 450 (5th Cir.2012) (noting that NEPA is a procedural, not a substanfive, statute that does not mandate particular results but simply prescribes the necessary process and mandates that the agency gather information concerning a project’s environmental consequences to inform its discretion in decisionmaking, such that undisputed violation of NEPA did not affect substantive decision making power and was at most an abuse of discretion); see also Freeman v. United States, 556 F.3d 326 (5th Cir.2009) (plaintiffs alleged that Secretary Chertoff failed to comply with requirement that he identify and establish procedures for the rapid deployment of appropriate assets within 120 days, and the Fifth Circuit concluded that “despite the delay, this agency time line created no judicially enforceable duty on the part of Secretary Chertoff’); Rosas v. Brock, 826 F.2d 1004, 1010 (11th Cir.1987) (“[I]f a discretionary decision is made without following mandated procedures, it is an abuse of discretion and, as such, protected from judicial review under section 5148.”) (citing Jayvee Brand, Inc. v. United States, 721 F.2d 385 (D.C.Cir.1983) (failure of government to follow required notice and comment procedures is an abuse of discretion and within discretionary function exception to FTCA)).

Moreover, the project period for the original award of the grant/Cooperative Agreement ended June 30, 2006. None of the Plaintiffs allege that they suffered any harm before that date. Therefore, although Plaintiffs complain of alleged non-discretionary violations with regard to the 2003 award, they fail to show how that award or any alleged violations connected to that award are relevant to their injuries. Rather, Plaintiffs must point to nondiscretionary acts by ORR in awarding the extension for July 1, 2006 to September 30, 2006, or in awarding the grant to AFH for the project period beginning October 1, 2006. Plaintiffs do not specifically challenge these decisions. To the extent Plaintiffs would argue that these decisions were nondiscretionary because ORR was on notice in 2006 of allegedly dangerous conditions at Nixon, the Court finds that these decisions were within the discretionary function exception because Plaintiffs point to no mandatory requirement that was violated and ORR’s decision to continue working with AFH, like its decision to initially award the grant to AFH, involves the types of policy choices protected by the discretionary function exception.

b. Grant Administration Violations

Plaintiffs also complain that ORR violated grant administration regulations during its administration of the Cooperative Agreement. The United States contends that it is unclear whether Plaintiffs “believe this pertains to their ‘negligent selection’ or ‘negligent supervision’ claim.” However, it appears that Plaintiffs are asserting that these violations affected ORR’s discretion to maintain the grant relationship with AFH and continue funding. See Docket no. 190 at 9. This argument therefore appears to relate more to the negligent contracting/negligent selection claim than the negligent supervision claim.

Plaintiffs argue that ORR violated post-award requirements in 45 C.F.R. Part 74. Specifically, Plaintiffs argue that ORR failed to comply with 45 C.F.R. § 74.27, which regulates “allowable costs.” Plaintiffs argue that ORR was aware of AFH’s misrepresentation of work performed by CEO Don Rains and President Jack Eben and knew that they did not work full time at Nixon, yet continued to include full-time salaries in the budget. PI. Ex. 16 at ORR003935. Plaintiffs argue that these were not allowable costs because FAR § 31.205-6 “require[s] that payment be limited to work actually performed.” Docket no. 190 at 15. In addition, “Compensation for each employee or job class of employees must be reasonable for the work performed. Compensation is reasonable if the aggregate of each measurable and allowable element sums to a reasonable total.” Id.

Ken Tota testified that the budget was the product of negotiation. As can be seen from the regulations, the reasonableness of compensation is not a fixed measure. As the United States points out, ORR took reasonable steps to sort out the issues with the salaries, and expressed frustration that the issue had not been resolved and ordered an audit of Nixon. PI. Ex. 8. The United States asserts that “Plaintiffs have not identified any mandated action that was not taken by ORR with respect to this non-issue, nor can they connect it in any way to alleged failures in awarding the grant to AFH.”

The Court agrees. The relevant inquiry is whether the policy specifically addresses how an official must confront a given situation. Lopez, 455 Fed.Appx. at 433 (citing Freeman v. United States, 556 F.3d 326, 339-40 (5th Cir.2009)). A policy may direct general policy goals, such as determining compliance with certain guidelines, but when the policy fails to prescribe ‘specific direction’ as to what course of action an employee must follow, it generally fails to establish a nondiscretionary duty. Id. In addition, the plaintiff must establish a plausible causal relationship between the breach of the nondiscretionary duty and the plaintiffs injury. Lopez, 455 Fed.Appx. at 433 n. 1. Plaintiffs point to no regulation setting a mandatory course of action that ORR violated, nor do Plaintiffs demonstrate that any irregularity with regard to these salaries would have required ORR to terminate the grant. Accordingly, Plaintiffs demonstrate no violation of a mandatory requirement and no link between the payment of salaries to Rains and Ebens and Plaintiffs’ injuries.

Plaintiffs further contend that ORR impermissibly failed to correct known disallowed costs regarding lease and mortgage payments on AFH’s real property. Plaintiffs argue that, “despite much wringing of hands, ... ORR never took any action to correct these unallowable costs.” Docket no. 190 at 17. The United States contends that Plaintiffs’ claim is conclusory and identifies no specific payments made for disallowed costs, and does not identify any policy or regulation that was violated. The United States argues that Plaintiffs cite no mandatory policy or regulation prescribing a course of action that ORR failed to pursue. In any event, the United States contends, ORR did not ignore alleged financial improprieties but instead investigated and took steps to remedy the improprieties.

The Court agrees that Plaintiffs do not point to the violation of a mandatory duty associated with ORR’s decision to continue the grant award to AFH in spite of the irregularities with the lease and mortgage. Plaintiffs point to no mandatory course of conduct that would govern ORR’s conduct after learning of potential irregularities with the lease or would require ORR to take a specific action or to terminate the grant. At most, Plaintiffs demonstrate an abuse of discretion in administering the grant, but that does not remove ORR’s decisions to contract with AFH or to continue the grant from the discretionary function exception.

Plaintiffs contend that, upon termination of the grant, ORR was required to take certain actions regarding the real property pursuant to 45 C.F.R. § 74.32(c). However, as noted by the United States, Plaintiffs fail to demonstrate how any such failure to take those actions is causally related to any harm suffered by Plaintiffs since the grant was terminated well after all of the alleged abuse occurred. See Lopez v. United States, 455 Fed.Appx. 427, 433 n. 1 (5th Cir.2011) (plaintiffs “had to allege facts that, if true, would demonstrate a plausible causal relationship between the nondiscretionary duty” and the harm).

C. Negligent Supervision/Oversight (Twelfth and Thirteenth Causes of Action)

In the Twelfth Cause of Action, Plaintiffs argue that Defendants Newton, Dunn, Ortiz-Ang, De La Cruz, Gonzalez, Mungia, Moore, and Wolde were negligent in carrying out their legal duties to ensure the proper treatment, care, welfare, safety, and protection of the minors detained at the facility. Sixth Am. Compl. ¶ 277. In the Thirteenth Cause of Action, Plaintiffs allege that Newton, Dunn, Ortiz-Ang, De La Cruz, Mungia, Gonzalez, Moore, and Wolde were negligent in training, supervising, monitoring, and controlling their employees, agents, and/or contractors at the Nixon facility. Id. ¶ 285. Thus, Plaintiffs allege that these Defendants negligently supervised Nixon employees and the care of the minors at Nixon.

1. Negligent Supervision/Oversight in General

The United Statés asserts that ORR had discretion to decide how to monitor Nixon and followed its own policies governing the oversight of such facilities. Under 6 U.S.C. § 279, ORR is responsible for overseeing the infrastructure and personnel of facilities in which unaccompanied alien children reside and conducting investigations and inspections of facilities in which unaccompanied children reside, including regular follow-up visits to such facilities to assess the continued suitability of such placements. 6 U.S.C. § 279(b)(1)(G), (L). The United States argues that § 279 does not specify the type, frequency, or degree of ORR’s oversight, thus leaving these decisions to ORR’s discretion. The United States contends that the statute also leaves to ORR’s discretion the specific parameters of its investigations and inspections of the facilities in which unaccompanied alien children reside.

The United States asserts that ORR has not promulgated any regulations pursuant to 6 U.S.C. § 279, but has developed an internal Policies and Procedures Manual (“ORR Manual”) that provides guidance on the placement and monitoring of unaccompanied alien children. The Flores Agreement also requires the monitoring of a care provider’s compliance with the terms of the Agreement. Flores Agreement at ¶ 28A (“An INS Juvenile Coordinator ... shall monitor compliance with the terms of this Agreement and shall maintain an up-to-date record of all minors who are placed in proceedings and remain in INS custody for longer than 72 hours.”).

The ORR Manual provides that the ORR Project Officer charged with supervising a particular cooperative agreement is required to conduct on-site monitoring of the facility at least once a year and more frequently if necessary, but neither the ORR Manual nor the Flores Agreement specifies the conditions precedent to enhanced monitoring nor the frequency of such monitoring. According to the “stipulation of undisputed facts” submitted by the United States and the evidence in the record, the ORR Project Officer responsible for the Nixon Facility met the annual monitoring requirement, and also conducted more frequent monitoring of quarterly program progress reports and weekly statistical data submitted by AFH. This is not disputed by Plaintiffs.

Further, according to the statement of undisputed facts, before September 2006, ORR oversaw the Nixon facility primarily through reports to the Project Officer and periodic visits by a federal field specialist, and ORR staff reviewed reports by the facility to monitor compliance with the cooperative agreement and followed up with facility management as needed. In September 2006, after ORR received information about the unreported incident of child sexual abuse that had occurred in April 2006, ORR concluded it could work with the program to prevent this sort of failure in the future. On October 18, 2006, ORR provided to AFH staff at the Nixon facility technical assistance on reporting child abuse, including a review of Significant Incident Reports and the ORR Manual. After ORR became aware of the November 2006 restraint incident in which a Nixon facility employee was found to have abused a resident, ORR conducted a series of conference calls and instructed AFH management to provide training to their staff on ORR policies and procedures, state requirements, and the shelter policy on abuse and neglect. ORR also conducted a site visit in late November and provided three days of intensive technical assistance to AFH staff and management.

After learning of Leal’s sexual abuse of several residents in February 2007, ORR suspended new placements at the Nixon Facility, increased oversight, and conducted unannounced visits. ORR field personnel and management interviewed staff, administrators, and residents and reviewed staffing patterns. Between February 27 and March 7, ORR transferred all residents out of the facility. ORR ultimately determined it would not be safe to return children to the facility and terminated its cooperative agreement by letter dated June 25, 2007.

The United States argues that determining the extent and manner of its oversight of the facilities for unaccompanied minors was within ORR’s discretion, and to the extent it developed policies that applied to the monitoring of the Nixon Facility, those policies were followed. The United States further argues that ORR’s response to the information it received from Nixon, including incidents of abuse, was within its discretion. Thus, the United States argues, the first element of the discretionary function test is satisfied.

With regard to the second element, the United States argues that ORR’s oversight was susceptible to and actually involved policy considerations insofar as political and economic policy considerations are inherent in decisions made by federal agencies such as ORR concerning staffing levels. The United States asserts that ORR had approximately 1100 minors in its custody residing in 33 facilities in eight states, and exercised its discretion in allocating its limited resources in an economically feasible manner that would maximize the agency’s ability to accomplish its objectives. The United States contends that ORR officials made discretionary determinations concerning the amount of resources to devote to monitoring each of the facilities for unaccompanied alien children, including Nixon, in an attempt to ensure that sufficient oversight of all of the facilities was accomplished within the constraints of the resources allocated to the agency. The United States argues that courts have repeatedly found that the degree of the government’s oversight of a contractor, such as ORR’s oversight of AFH, is the type of decision the discretionary function exception was intended to protect.

The United States is correct that government decisions regarding oversight of its contractors are generally held to be of the type protected by the discretionary function exception. In Guile v. United States, 422 F.3d 221, 231 (5th Cir.2005), the Fifth Circuit held that “[sjupervision of a contractor’s work, including the degree of oversight to exercise, is inherently a discret