MEMORANDUM OPINION
JAMES
E. BOASBERG United States District Judge
The
Court once again addresses a dispute between various private
actors in the immigration-bond process and the federal
officials responsible for oversight. Plaintiffs - two
bail-bond companies, a separate corporation guaranteeing the
detainees' compliance with the bonds, and that
company's CEO - assert that the Government's current
administration of the system violates their right to due
process guaranteed by the United States Constitution, as well
as the Administrative Procedure Act. In support of these
claims, they point to defective documentation provided by
Immigration and Customs Enforcement to non-citizens released
on bail. When these individuals fail to appear at court
hearings, the bonds are breached, causing significant damage
to Plaintiffs' business interests. While Plaintiffs may
be justifiably concerned, they have not pled cognizable
causes of action here, despite this Court's providing
them multiple opportunities to do so. It will therefore grant
Defendants' Motion for Judgment on the Pleadings.
I.
Background
A.
Factual Background
The
Court has outlined the factual underpinning of this lawsuit
in multiple prior Opinions. See, e.g., Statewide
Bonding v. DHS (Statewide II), 2019 WL 2477407,
at *1-2 (D.D.C. June 13, 2019). Briefly, some non-citizens
held in immigration-detention facilities may be released
while they await a hearing if they can post a monetary bond.
See 8 C.F.R. §§ 236.1(c), 103.6. Those
unable to post their own bonds can turn to bail-bond
companies such as Plaintiffs Big Marco Insurance and Bonding
Services, LLC and Statewide Bonding, Inc. See ECF
No. 32 (Second Amended Complaint), ¶ 24. These companies
partner with sureties (insurance companies certified by the
Department of Treasury) to enter into bond agreements with
ICE. Id The agreements secure bonds on behalf of
non-citizens, and the companies generally require bond
seekers to provide collateral as security in the event of
their failure to appear. Id, ¶¶ 16, 25. If
the non-citizen does not have sufficient collateral on hand,
he can strike up an arrangement with a third company, such as
Plaintiff Nexus Services, Inc. Id, ¶ 16. Nexus
enters into separate contractual arrangements with the
bail-bond companies to supply collateral and guarantee a
non-citizen's appearance when required by ICE.
Id, ¶¶ 27, 30. In exchange, the
non-citizen provides monthly payments to Nexus and agrees to
GPS monitoring. Id, ¶¶ 26-27.
This
case arises from alleged flaws in the various documents given
to non-citizens and this tangle of private entities to ensure
the released person's attendance at immigration
proceedings. According to Plaintiffs, at his conditional
release, a non-citizen receives a Notice to Appear (NTA).
Id, ¶ 31. The NTA informs him that he has been
placed in removal proceedings, sets out the allegations
supporting removal, and should alert him of the date, time,
and place of his immigration hearing. Id,
¶¶ 35-36; see also Pereira v. Sessions,
138 S.Ct. 2105, 2115 (2018) (“Conveying . . .
time-and-place information to a noncitizen is an essential
function of a notice to appear.”). According to
Plaintiffs, however, ICE consistently issues NT As to their
clients that “do not contain a time and date, and the
majority do not contain a place, with respect to where the
immigrant client is supposed to appear in court.”
Second Am. Compl., ¶ 38.
If the
non-citizen does not appear for his hearing, ICE will send
the bail-bond company the second document at issue, a Notice
to Produce Alien (NPA). Id, ¶¶ 48-49. The
NPA alerts the company of the non-citizen's failure to
appear and requires it to procure that person's
appearance on a specific date. Id If it fails to do
so, the bond obligors will be deemed in breach of the bond
and required to pay an amount up to the full value of the
bond. See Statewide II 2019 WL 2477407, at *2;
see also 8 C.F.R. § 103.6 (bond is breached
“when there has been a substantial violation of the
stipulated conditions” of bond agreement). Plaintiffs
allege that ICE has been issuing NPAs demanding that they
produce the subject immigrant within 10 days and sometimes on
an even tighter timeline. See Second Am. Compl.,
¶ 51; see also id (noting that “[o]n more
than one occasion, these NPAs have been received
after the subject immigrant was to be
produced”). Such practices make it even harder for
Plaintiffs to comply and result in an increased number of
bond breaches. Id, ¶¶ 52-59.
B.
Procedural History
Plaintiffs
filed their Complaint in September 2018, asserting that
Defendants' administration of this bond process violated
both their due-process rights protected by the United States
Constitution and the Administrative Procedure Act. After
Plaintiffs once amended their Complaint, the Court dismissed
it because they had not sufficiently articulated their
standing to pursue such claims. See Statewide Bonding,
Inc. v. DHS, 2019 WL 689987, at *1 (D.D.C. Feb. 19,
2019) (Statewide I). Accepting the Court's offer
to try again, Plaintiffs have once more amended their
Complaint, this time to clarify their injuries.
Like
the previous one, this Second Amended Complaint asserts that
the agency's policy or practice of making bond-breach
determinations following the issuance of defective NTAs and
NPAs violates Plaintiffs' due-process rights and the
Administrative Procedure Act. More specifically, they allege
that the “defective” NTAs and NPAs preclude
non-citizens from attending their immigration hearings and
the bail-bond companies from procuring their appearances at
subsequent proceedings. See Second Am. Compl.,
¶¶ 1, 10. Plaintiffs have “no reasonable
opportunity to comply” with the terms of the bonds, and
Defendants then “declare the bonds in breach[, ] . . .
requir[ing Plaintiffs] to pay tens of thousands of dollars to
the Defendants.” Id., ¶ 59. A breach
declaration, in turn, “threaten[s]” the
“[c]ollateral that Nexus has placed at risk to
indemnify the bondsmen.” Id., ¶ 60.
Plaintiffs allege that along with these financial harms,
ICE's conduct also causes them “reputational harms
for every bond declared in breach.” Id.,
¶ 65. This is so, they claim, because surety companies
do not want to partner with bail-bond companies with high
bond “fail rates.” Id., ¶ 59.
Plaintiffs assert that ICE has declared 391 bond agreements
in breach, to all of which at least one of them is a party.
Id., ¶ 60.
Defendants
moved to dismiss this Second Amended Complaint, arguing that
Plaintiffs had again failed to demonstrate standing. The
Court denied that Motion. See Statewide Bonding II,
2019 WL 2477407, at *1. While expressing “reservations
about the legal basis for the[ ] suit, ” it found that
Plaintiffs had at least “done enough to show they have
standing to proceed.” Id. Defendants now take
up the Court's implicit invitation to go beyond
jurisdictional arguments, moving for judgment on the
pleadings. In support of their Motion, they argue that, even
under the facts as pled, Plaintiffs cannot prevail on their
claims as a matter of law.
II.
Legal Standard
Federal
Rule of Civil Procedure 12(c) authorizes a party to move for
judgment on the pleadings at any time “[a]fter the
pleadings are closed -- but early enough not to delay
trial.” A party seeking judgment on the pleadings must
demonstrate “that no material fact is in dispute and
that it is entitled to judgment as a matter of law.”
Dist. No. 1 v. Liberty Maritime Corp., 933 F.3d 751,
760 (D.C. Cir. 2019) (quotation marks omitted). When deciding
such a motion, courts should view all facts and draw all
inferences in the light most favorable to the non-moving
party. See Peters v. Nat'l R.R. Passenger Corp.,
966 F.2d 1483, 1485 (D.C. Cir. 1992). A court should grant a
motion for judgment on the pleadings when “it is clear
that no relief could be granted under any set of facts that
could be proved consistent with the allegations.”
Lindsey v. Dist. of Columbia, 609 F.Supp.2d 71, 77
(D.D.C. 2009). The appropriate standard for reviewing a 12(c)
motion is therefore similar but not identical to that applied
to a motion to dismiss under Rule 12(b). See Samuels v.
Safeway, Inc., 391 F.Supp.3d 1, 2 (D.D.C. 2019). In
particular, “while a Rule 12(b) motion may be based on
procedural failures, including lack of
subject-matter jurisdiction . . . a Rule 12(c) motion centers
upon the substantive merits of the parties'
dispute.” Id. (quotation marks omitted).
Where
the Court must consider “matters outside the
pleadings” to reach its conclusion, a motion for
judgment on the pleadings “must be treated as one for
summary judgment under Rule 56.” Fed.R.Civ.P. 12(d);
see also Yates v. Dist. of Columbia, 324 F.3d 724,
725 (D.C. Cir. 2003) (same). At this stage, however, a Court
can review “documents attached as exhibits or
incorporated by reference in the complaint” or
“documents upon which the plaintiff's complaint
necessarily relies even if the document is produced not by
the plaintiff in the complaint but by the defendant.”
Ward v. D.C. Dep't of Youth Rehab. Servs., 768
F.Supp.2d 117, 119 (D.D.C. 2011) (internal quotation marks
omitted); see also Banneker Ventures, LLC v. Graham,
798 F.3d 1119, 1133 (D.C. Cir. 2015) (“A district court
may consider a document that a complaint ...