United States District Court, District of Columbia
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, et al., Plaintiffs,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
MEMORANDUM OPINION RE DOCUMENT NOS. 14, 19
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
Denying
Plaintiffs' Motion for Preliminary Injunction; Granting
Defendants' Motion to Dismiss
I.
INTRODUCTION
On
April 6, 2018, the administration of President Donald J.
Trump began implementing the so-called “zero tolerance
policy” on unauthorized immigration. Under the new
policy, the administration ended its earlier practice of
funneling most aliens apprehended at the border through civil
immigration proceedings, and instead started systematically
detaining and criminally prosecuting suspected illegal
immigrants for unlawful entry into the country. Because minor
children could not be held in criminal custody with adults,
component agencies of the Department of Homeland Security
(“DHS”) also began systematically separating
families apprehended together when attempting to enter the
country. While adult family members were sent to criminal
custody, DHS placed the minor children in the custody of the
Department of Health and Human Services (“HHS”),
in a poorly-documented interagency process that often had the
practical result of parents and family members being
completely cut off from, and unable to communicate with,
their separated children, for weeks-sometimes months-at a
time.
The
significant public backlash in response to the zero tolerance
policy, and particularly to the thousands of family
separations the Trump administration conducted in just a few
months, eventually led President Trump to issue an executive
order on June 20, 2018, directing DHS to stop separating
families apprehended at the border. In response to a
class-action lawsuit by parents of separated children, the
U.S. District Court for the Southern District of California
entered a preliminary injunction the same month ordering the
administration to reunite currently separated children with
their alien parents. But the fallout from the zero tolerance
policy did not stop there. Reports prepared by the U.S.
Government Accountability Office (“GAO”) and
DHS's Office of Inspector General (“OIG”)
following the end of mandatory separations brought to light a
wide range of deficiencies in DHS's implementation of the
policy, including in the agency's recordkeeping practices
associated with family separations.
Although
they spend much of the amended complaint and of their briefs
discussing the botched implementation and consequences of the
zero tolerance policy, it is those recordkeeping practices
that Plaintiffs Citizens for Responsibility and Ethics in
Washington (“CREW”) and Refugee and Immigrant
Center for Education and Legal Services, Inc.
(“RAICES”) challenge in this suit. Plaintiffs
bring three claims against DHS and the Secretary of Homeland
Security for declaratory and injunctive relief pursuant to
the Administrative Procedure Act (“APA”), 5
U.S.C. §§ 701-06. Plaintiffs allege that
DHS violates the Federal Records Act (“FRA”), 44
U.S.C. §§ 2101-20, 2901-11, 3101-07, 3301-14, by 1)
maintaining a deficient records management program, 2)
failing to create records sufficient to link migrant children
to adult companions with whom they are apprehended at the
border, and 3) failing to create records of agency policy and
decisions. Plaintiffs have moved for a preliminary injunction
as to claim two, while Defendants have moved to dismiss this
case for lack of subject matter jurisdiction and failure to
state a claim.
As
detailed below, the Court denies Plaintiffs' motion for a
preliminary injunction and grants Defendants' motion to
dismiss. The Court is sensitive to the significant harms
Plaintiffs allege families apprehended at the border
faced-and still face-as a result of the zero tolerance
policy. But it does not believe that Plaintiffs' FRA
claims, as pled, are a proper vehicle for challenging those
harms. First, the Court determines that it only has subject
matter jurisdiction over claims one and two. And second,
while CREW and RAICES point to a number of individual
failures in DHS's recordkeeping procedures, and make
arguments for changes to the agency's recordkeeping they
contend are required by the FRA, none of their claims point
to a final agency action pursuant to the APA. Independently
of standing, all three claims therefore fail to state a claim
under the APA.
II.
BACKGROUND [1]
A.
Records Creation and Preservation Requirements Under the
FRA
The
Federal Records Act is a collection of scattered statutes
that together “govern[] the creation, management and
disposal of federal records.” Armstrong v.
Bush, 924 F.2d 282, 284 (D.C. Cir. 1991). Pursuant to
the FRA, agencies are required to “establish[]
standards and procedures to assure efficient and effective
records management, ” in order to ensure the proper
creation and preservation of records pertaining to the
“policies and transactions of the Federal
Government.” 44 U.S.C. § 2902. This requires every
agency to “maintain an active, continuing program for
the . . . management of the records of the agency” that
provides for, inter alia, controls over the
creation, maintenance, and use of records; and cooperation
with the Archivist of the United States, the head of the
National Archives and Records Administration
(“NARA”), in managing preserved records.
Id. § 3102. The FRA charges the Archivist with
promulgating “standards, procedures, and guidelines
with respect to records management, ” id.
§ 2904(c)(1), and, among the Archivist's oversight
responsibilities, provides that “the Archivist shall
have the responsibility . . . to conduct inspections or
surveys of the records and the records management programs
and practices” of federal agencies, id. §
2904(c)(7).
With
respect to the creation of records, the FRA requires that
each agency “make and preserve records containing
adequate and proper documentation of the organization,
functions, policies, decisions, procedures, and essential
transactions of the agency and designed to furnish the
information necessary to protect the legal . . . rights of .
. . persons directly affected by the agency's
activities.” 44 U.S.C. § 3101. Under the FRA's
implementing regulations, agencies must prescribe the
creation of records that “document the persons, places,
things, or matters dealt with by the agency, ” 36
C.F.R. § 1222.22(a), “facilitate action by agency
officials and their successors in office, ”
id. § 1222.22(b), “[m]ake possible a
proper scrutiny by the Congress or other . . . agencies of
the Government, ” id. § 1222.22(c),
“[p]rotect the . . . legal . . . rights of . . .
persons directly affected by the Government's actions,
” id. § 1222.22(d), and “document
the formulation and execution of basic policies and decisions
and the taking of necessary actions, ” id.
§ 1222.22(e).
B.
The January 2017 and July 2018 NARA Inspection
Reports
On
January 11, 2017, following an inspection conducted pursuant
to 44 U.S.C. § 2904(c)(7), NARA issued a records
management inspection report on DHS's records management
program. See Am. Compl. ¶ 23, ECF No. 7;
Nat'l Archives & Records Admin., Department of
Homeland Security Records Management Program: Management
Inspection Report (“NARA DHS Inspection Report”)
(2017),
https://www.archives.gov/files/records-mgmt/resources/dhs-2016-inspection.pdf.[2] The report identified a
number of deficiencies in DHS's records management
program and practices, including that “DHS records
management policies, procedures, and strategic plans ha[d]
been in draft form for several years” and that DHS
lacked a “Department-wide strategy for retention
scheduling for email records.” Am. Compl. ¶ 23
(alteration in original) (quoting NARA DHS Inspection Report
ii). The report also found that “DHS email use and
storage strategies d[id] not allow for effective retention
and retrieval of email.” Id. (quoting NARA DHS
Inspection Report iii).
And on
July 16, 2018, NARA issued another report following an
inspection of the records management program of U.S. Customs
and Border Protection (“CBP”), a component agency
of DHS. Am. Compl. ¶ 24; Nat'l Archives &
Records Admin., U.S. Customs and Border Protection Records
Management Program: Records Management Inspection Report
(“NARA CBP Inspection Report”) (2018), Pls.'
Mot. Prelim. Inj. Ex. 1., ECF No. 14-3. The CBP inspection
report was “highly critical, ” identifying
significant deficiencies in CBP's records management
practices. Am. Compl. ¶ 24. NARA noted at the onset that
“[i]n its current state, the records management program
at CBP [was] substantially non-compliant with Federal
statutes and regulations . . . and DHS Records and
Information Management policies.” NARA CBP Inspection
Report 2; see Am. Compl. ¶ 24. NARA found that
CBP's “directives establishing program objectives,
responsibilities, and authorities for the creation,
maintenance, and disposition of agency records” were
“out of date or in draft form.” Am. Compl. ¶
24 (quoting NARA CBP Inspection Report 3). The agency's
structure for ensuring documentation of its work was
“not adequately implemented throughout each program to
ensure incorporation of recordkeeping requirements and
records maintenance.” Id. (quoting NARA CBP
Inspection Report 4). CBP “d[id] not integrate records
management and recordkeeping requirements in the design,
development, and implementation of its electronic systems,
” id. (quoting NARA CBP Inspection Report 5),
and failed to provide training or provided inadequate
training on records management to its staff, see
NARA CBP Inspection Report 6. And the agency “d[id] not
conduct regular records management evaluations of agency
components.” Am. Compl. ¶ 24 (quoting NARA CBP
Inspection Report 7). NARA concluded that CBP's records
management program “lack[ed] numerous basic elements of
a compliant records management program, ” and would
“require careful strategic planning” as well as
CBP fostering “a culture that includes records
management in the regular and routine practices of all [the
agency's] program functions” in order to become
effective. NARA CBP Inspection Report 11.
C.
The Zero Tolerance Policy and Subsequent Ms. L.
Litigation
On
April 6, 2018, then-Attorney General Jeff Sessions began
implementation of the “zero tolerance policy, ”
directing federal prosecutors along the United States'
southwest border “to work with DHS ‘to adopt
immediately a zero-tolerance policy' requiring that all
improper entry offenses be referred for criminal prosecution
‘to the extent practicable.'” Dep't of
Homeland Sec. Office of the Inspector Gen., Special Review -
Initial Observations Regarding Family Separation Issues Under
the Zero Tolerance Policy (“DHS OIG Report”) 2
(2018), Pls.' Mot. Prelim. Inj. Ex. 3, ECF No. 14-5.
When
combined with the Trump administration's decision to end
the prior practice of releasing certain types of undocumented
immigrants pending resolution of their immigration or
criminal cases, see id., the zero tolerance policy
had a dramatic impact on families apprehended by DHS
component agencies. Prior to the implementation of zero
tolerance, “when CBP apprehended a migrant family unit
attempting to enter the United States illegally, it usually
placed the adult in civil immigration proceedings.” Am.
Compl. ¶ 30. And “CBP only separated apprehended
parents from children in limited circumstances, such as where
the adult had a criminal history or outstanding
warrant.” Id. “Accordingly, in most
instances, family units either remained together in family
detention centers . . . or . . . were released into the
United States with an order to appear in immigration
court.” DHS OIG Report 2. By contrast, “[b]ecause
minor children cannot be held in criminal custody with an
adult, ” the zero tolerance policy required DHS to
systematically separate adults from children when
apprehending families. Id. at 3. With the adults
placed in criminal custody, “DHS then deemed [the
children] to be unaccompanied alien children, ” and
“held [them] in DHS custody until they could be
transferred to the U.S. Department of Health and Human
Services (HHS) Office of Refugee Resettlement.”
Id.
In the
two or so months the policy was in place, the government
separated thousands of children from their parents. Am.
Compl. ¶ 31. “Faced with resource limitations and
other challenges, ” DHS's implementation of the
zero tolerance policy was, by all accounts, a disaster. DHS
OIG Report 1; see Am. Compl. ¶ 26. CBP
“held alien children separated from their parents for
extended periods in facilities intended solely for short-term
detention, ” DHS OIG Report 1, generating widespread
media attention. DHS “struggled to identify, track, and
reunify families.” Id. And because of
DHS's communication and information failures, alien
parents separated from their children were unable to
communicate with their children after separation.
Id. One former DHS official in the agency's
Office for Civil Rights and Civil Liberties, Scott Shuchart,
has since noted in several media appearances that his office
had tried to raise the alarm regarding DHS's
recordkeeping failures, only to be ignored. See
Scott Shuchart, Careless Cruelty: Civil Servants Said
Separating Families Was Illegal. The Administration Ignored
Us, Washington Post (Oct. 25, 2018),
https://www.washingtonpost.com/news/posteverything/wp/2018/10/25/
feature/civil-servants-said-separating-families-was-illegal-the-administration-ignored-us/;
Scott Pelley, The Chaos Behind Donald Trump's Policy
of Family Separation at the Border, 60 Minutes (Nov. 26,
2018),
https://www.cbsnews.com/news/trump-family-separation-policy-mexican-border-60-minutes-investigation-greater-in-number-than-trump-administration-admits/.
Shuchart and his colleagues “push[ed] for
record-keeping, communication and other policies, ” and
“tried to ring the alarm” after noticing that
“CBP and ICE weren't providing HHS with proper
records to allow families to be reunited or pursue their
immigration cases jointly.” Shuchart, Careless
Cruelty; Am. Compl. ¶ 38. His warnings were
ignored. Am. Compl. ¶¶ 38- 39. The agency itself
conceded that it “was not fully prepared to
implement” the policy “or to deal with some of
its after-effects”-somewhat of an understatement, in
light of the significant failures identified in subsequent
reports at all levels of the implementation process. DHS OIG
Report 1. After “massive public outcry, ”
President Trump halted systematic family separations on June
20, 2018. Am. Compl. ¶ 32.
At the
same time as the Trump administration was implementing the
zero tolerance policy, it was fighting in court a lawsuit by
a class of parents detained-or at risk of being detained-by
DHS in immigration custody and separated from their children.
See generally Docket, Ms. L. v. U.S. Immigration
& Customs Enforcement, No. 18-cv-428 (S.D. Cal.). On
June 26, 2018, the court in that case issued a preliminary
injunction requiring DHS to stop detaining parents and
children separately (outside of limited circumstances), to
immediately begin facilitating regular communication between
detained classmembers and their separated children, and to
reunite the detained classmembers with their children within
30 days. Ms. L. v. U.S. Immigration & Customs
Enforcement, 310 F.Supp.3d 1133, 1149-50 (S.D. Cal.
2018). DHS was unable to comply with the court's order
within 30 days. Am. Compl. ¶ 34. In fact, by December
2018, DHS had still not fully complied with the order.
Id.
D.
Government Review of Zero Tolerance's
Implementation
After
the significant public attention generated by the zero
tolerance policy and the Ms. L. litigation, two
government reports discussing DHS's family separation
procedures were issued. First, the DHS OIG issued a report
entitled “Special Review - Initial Observations
Regarding Family Separation Issues Under the Zero Tolerance
Policy” on September 27, 2018. See generally
DHS OIG Report. The report “reveal[ed] numerous records
management failings by DHS” in its implementation of
the zero tolerance policy. Am. Compl. ¶ 36. Among
others, DHS “lack[ed] complete and adequate records
documenting basic details concerning migrant family
separations and reunifications.” Id. In the
course of its review, OIG had “requested a list of
every migrant child separated from an adult since April 19,
2018, as well as basic information about each child.”
Id. (quoting DHS OIG Report 11). “It took DHS
many weeks to provide the requested data, . . . [and] the
data DHS eventually supplied was incomplete and
inconsistent.” Id. (quoting DHS OIG Report
11). As for family separations that had occurred before April
19, 2018, the report noted that CBP had been unable to
identify any separated children, “indicating that the
agency failed altogether to create records documenting that
information.” Id.
The OIG
also found that neither CBP nor Immigration and Customs
Enforcement (“ICE”)-a DHS component that
processes alien removals-had “an adequate, uniform
system for creating or retrieving records” of,
respectively, “unaccompanied minors at the
border” or “detainees in [ICE] custody who have
been separated from a child.” Id. Instead, CBP
officers “manually enter[ed] information into a
Microsoft Word document, which they then sen[t] to HHS,
” creating opportunities for human error in tracking
separated children. Id. (quoting DHS OIG Report 10).
And while CBP “enter[ed] ‘family separation data
into certain fields within its own system, '” ICE
did not have access to those fields and “treated
separated adults the same as other detainees, ” making
“no additional effort to identify and reunite families
prior to removal.” Id. (quoting DHS OIG Report
10). Finally, the report found that “CBP d[id] not
create adequate records of its transmissions to HHS of
information regarding minors transferred from DHS to HHS
custody.” Id. (quoting DHS OIG Report 10
n.21).
In
October 2018, the Government Accountability Office
(“GAO”) issued its own report on the
government's efforts to reunify separated families in the
wake of the Ms. L. litigation. See
Government Accountability Office, Unaccompanied Children:
Agency Efforts to Reunify Children Separated from Parents at
the Border (“GAO Report”) (2018), Pls.' Mot.
Prelim. Inj. Ex. 2, ECF No. 14-4. The GAO Report also
identified “several records management deficiencies
concerning DHS's implementation of the Zero Tolerance
Policy.” Am. Compl. ¶ 37. Among others, although
DHS and HHS adjusted their systems by August 2018
‘“to help notate . . . when children are
separated from parents,' these changes were
ineffective” because information added on CBP systems
was not necessarily shared with HHS upon the transfer of
separated children. Id. (quoting GAO Report 16). The
GAO Report also found that DHS components were not properly
or consistently utilizing newly implemented changes intended
to better track the separation of parents from their
children. Id. And the report found that there was
“no single database with easily extractable, reliable
information on family separations.” Id.
(quoting GAO Report 23).
E.
Procedural Background
CREW
filed suit on October 26, 2018. Compl., ECF No. 1. On
December 14, 2018, CREW and RAICES filed an amended complaint
against DHS and then-Secretary of Homeland Security Kirstjen
Nielsen. See Am. Compl. Plaintiffs bring three APA
claims for DHS's alleged failures to comply with the FRA,
alleging that DHS's overall records management program is
deficient; that, even after the Ms. L. litigation,
DHS still fails to create records sufficient to link
separated children with adults they were apprehended with at
the border; and that DHS failed to document its policies and
decisions during the agency's implementation and rollback
of zero tolerance. See Id. ¶¶ 62-87.
On
March 8, 2019, Plaintiffs filed a motion for a preliminary
injunction on their second claim. Pls.' Mot. Prelim.
Inj., ECF No. 14. Defendants filed their opposition and
motion to dismiss the entire amended complaint on March 20,
2019. Defs.' Mot. Dismiss, ECF No. 19. Plaintiffs filed
their reply and opposition to the motion to dismiss on March
29, 2019, Pls.' Mem. Opp'n Mot. Dismiss, ECF No. 21,
and Defendants filed their reply on April 5, 2019, Defs.'
Reply, ECF No. 22. The Court heard oral argument on
Plaintiffs' motion for preliminary injunction on April
11, 2019. Both the motion to dismiss and the motion for
preliminary injunction are ripe for review.
III.
LEGAL STANDARD
A.
Motion for a ...