Citizens for Responsibility and Ethics in Washington v. U.S. Department of Homeland Security

          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 ...