Flores v. Barr

• Citation: 407 F.Supp.3d 909
• Decision Date: 27 September 2019
• Docket Number: Case No. CV 85-4544-DMG (AGRx)
• Parties: Jenny L. FLORES, et al. v. William P. BARR, et al.
• Court: U.S. District Court — Central District of California

407 F.Supp.3d 909

Jenny L. FLORES, et al.

v.William P. BARR, et al.

Case No. CV 85-4544-DMG (AGRx)

United States District Court, C.D. California.

Filed September 27, 2019

Attorneys Present for Plaintiff(s), None Present

Attorneys Present for Defendant(s), None Present

Proceedings: IN CHAMBERS - ORDER RE PLAINTIFFS' MOTION TO ENFORCE SETTLEMENT [516] AND DEFENDANTS' NOTICE OF TERMINATION AND MOTION IN THE ALTERNATIVE TO TERMINATE THE FLORES SETTLEMENT AGREEMENT [639]

The Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

I.INTRODUCTION

On September 7, 2018, Defendants issued a notice of proposed regulations that purportedly "parallel the relevant and substantive terms" of the Flores Settlement Agreement and are intended to supersede and terminate the Agreement. See Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 83 Fed. Reg. 45,486–45,534 (Sept. 7, 2018) [hereinafter "Proposed Regulations"]. The notice and comment period on the proposed regulations closed on November 6, 2018. Id. at 45,486. On November 2, 2018, Plaintiffs filed a Motion to Enforce the Flores Agreement [Doc. # 516], wherein Plaintiffs request that the Court: (1) declare that the Proposed Regulations amount to an anticipatory breach of the Agreement; (2) permanently enjoin the Department of Homeland Security ("DHS") and the Department of Health and Human Services ("HHS") from implementing the Proposed Regulations or their "material equivalent"; and (3) "if need be," declare that implementation of the regulations would constitute civil contempt. See Pls.' Mot. to Enforce at 14 [Doc. # 516];¹ Proposed Order at 4 [Doc. # 516-1].²

On November 21, 2018, the Court deferred ruling on Plaintiffs' Motion to Enforce and vacated the hearing thereon ("Deferral Ruling"). [Doc. # 525.] The Deferral Ruling ordered Defendants to file a notice upon issuance of the final regulations, required the parties to file simultaneous briefing regarding the final regulations within seven days of their publication, and provided that the matter would thereafter be taken under submission unless the Court rescheduled a hearing on the Motion. See id. at 2.

On August 21, 2019, Defendants filed a Notice of Publication of Regulations. [Doc. # 627.] On August 23, 2019, Defendants formally published the final regulations in the Federal Register. See Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 84 Fed. Reg. 44,392–44,535 (Aug. 23, 2019) [hereinafter "New Regulations"].³ Thereafter, on August 30, 2019, Defendants filed a Notice of Termination and Motion in the Alternative to Terminate the Flores Settlement Agreement ("Motion to Terminate"), and Plaintiffs filed a supplemental brief addressing their Motion to Enforce. [Doc. ## 639, 634.]⁴ Both motions are now fully briefed. [Doc. ## 668, 682.] The Court held a hearing on both motions on September 27, 2019.

Plaintiffs' Motion to Enforce presents two separate but related issues: (1) whether the New Regulations effectively terminate the Flores Agreement, and (2) if not, to what extent the Court should enjoin Defendants from implementing the New Regulations. Defendants' Motion to Terminate asserts that publication of the New Regulations terminates the Agreement or, in the alternative, presents grounds for termination.

Having duly considered the parties' written submissions, oral argument, as well as the amici briefs, the Court concludes that the New Regulations do not have the effect of terminating the Flores Agreement, Defendants have not met their burden to demonstrate an alternative reason to terminate the Agreement, and Defendants must be enjoined from implementing the New Regulations. Accordingly, Plaintiffs' Motion to Enforce is GRANTED insofar as it seeks such relief, and Defendants' Motion to Terminate is DENIED.

II.BACKGROUND

On January 28, 1997, this Court approved the Flores Agreement. See Flores v. Sessions , 862 F.3d 863, 866 (9th Cir. 2017). Paragraph 9 of the Flores Agreement provides in pertinent part that, "[w]ithin 120 days of the final district court approval of this Agreement, the INS shall initiate action to publish the relevant and substantive terms of this Agreement as a Service regulation. The final regulations shall not be inconsistent with the terms of this Agreement ."⁵ See Flores Agreement at ¶ 9 (emphasis added) [Doc. # 101].

Paragraph 40 of the Agreement initially provided: "All terms of this Agreement shall terminate the earlier of five years after the date of final court approval of this Agreement or three years after the court determines that the INS is in substantial compliance with this Agreement, except that the INS shall continue to house the general population of minors in INS custody in facilities that are licensed for the care of dependent minors." Id. at ¶ 40. On December 7, 2001, the parties stipulated to modify Paragraph 40 such that it now reads: "All terms of this Agreement shall terminate 45 days following defendants' publication of final regulations implementing this Agreement[.] Notwithstanding the foregoing, the INS shall continue to house the general population of minors in INS custody in facilities that are state-licensed for the care of dependent minors."⁶ See Pl.'s Ex. 2 at 70–73 (Dec. 7, 2001 Stipulation) (alterations omitted) [Doc. # 101].

III.DISCUSSION

The Court considers first Plaintiffs' Motion to Enforce and Defendants' response that the New Regulations terminate the Flores Agreement by its own terms, then turns to Defendants' alternative Motion to Terminate.

A. Plaintiffs' Motion to Enforce

In the preamble to the New Regulations, DHS and HHS identify what they consider to be the "key" elements of the new regulatory scheme: (1) the elimination of the Flores Agreement's requirement that a class member (even one in removal proceedings) be released if a custodian is available and detention is not required to secure timely appearance or to ensure any person's safety; (2) the adoption of a new definition of "licensed facility" that allows U.S. Immigration and Customs Enforcement ("ICE") to detain families in facilities not licensed by a state; and (3) ensuring that "[m]inors who are in expedited removal proceedings are not entitled to bond hearings." See 84 Fed. Reg. at 44,393 –95.

Plaintiffs assert that each of these three "key" regulatory changes, in addition to changes to the definition of a "secure facility" and the omission of mandatory language binding Defendants' actions, is invalid as inconsistent with the Flores Agreement.

"[A] motion to enforce [a] settlement agreement essentially is an action to specifically enforce a contract." Adams v. Johns-Manville Corp. , 876 F.2d 702, 709 (9th Cir. 1989). As described numerous times in this litigation, the Flores Settlement is a consent decree. See, e.g. , Flores v. Sessions , 862 F.3d 863, 874 (9th Cir. 2017) ; Order re Pls.' Mot. to Enforce at 3 [Doc. # 177]; Order re Pls.' Mot. to Enforce & Appoint a Special Monitor at 2–4 [Doc. # 363]. Because consent decrees have ‘many of the attributes of ordinary contracts [and] ... should be construed basically as contracts,’ the doctrine of substantial compliance, or substantial performance, may be employed." Jeff D. v. Otter , 643 F.3d 278, 283–84 (9th Cir. 2011) (internal citation omitted). Substantial compliance "does imply something less than a strict and literal compliance with the contract provisions but fundamentally it means that the deviation is unintentional and so minor or trivial as not ‘substantially to defeat the object which the parties intend to accomplish.’ " Wells Benz, Inc. v. United States , 333 F.2d 89, 92 (9th Cir. 1964) (citation omitted). The Court will therefore apply the preponderance of the evidence standard to the issue of whether Plaintiffs have demonstrated that Defendants have failed to substantially comply with certain provisions of the Agreement. See Order re Pls.' Mot. to Enforce & Appoint a Special Monitor at 4.

Plaintiffs contend that the New Regulations violate Paragraphs 9 and 40 (as modified by the parties' stipulation) and are inconsistent with the Flores Agreement because: (1) the DHS's New Regulations abrogate minors' protections against unnecessary prolonged detention and substandard placement, (2) the HHS's New Regulations expand the grounds for unlicensed placement and eliminate neutral and detached review of grounds to detain children on account of dangerousness and flight risk, and (3) the New Regulations replace the Flores Agreement's mandatory protections with aspirational statements of "dubious" enforceability. See Pls.' Mot. to Enforce at 14 [Doc. # 516]; Pls.' Supplemental Mem. at 8–10 [Doc. # 634].⁷ Defendants argue that the New Regulations were promulgated according to the Administrative Procedure Act ("APA") and implement the "basic purpose" of the Agreement. Defs.' Mot. to Terminate at 13–14 [Doc. # 639]. According to Defendants, the New Regulations therefore terminate the Agreement, and their validity must be assessed under APA standards. Id.

For the reasons discussed below, Plaintiffs are correct as a matter of law.

1. DHS's New Regulations Regarding Length of Detention and Placement

Paragraphs 14 and 18 of the Flores Agreement mandate the expeditious release of class members from Defendants' custody. Paragraph 14 provides:

Where the INS determines that the detention of the minor is not required either to secure his or her timely appearance before the INS or the immigration court, or to ensure the minor's safety or that of others, the INS shall release a minor from its custody without unnecessary delay in the following order of preference , to:

A. a parent;

B. a legal guardian;

C. an adult relative (brother, sister, aunt, uncle, or grandparent);

D. an adult individual or entity designated by the parent or legal guardian as capable and willing to care for the minor's well-being in (i) a declaration signed under penalty of perjury before an immigration or consular

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