L.m.-M. v. Cuccinelli

Citation442 F.Supp.3d 1
Decision Date01 March 2020
Docket NumberCivil Action No. 19-2676 (RDM)
Parties L.M.-M., et al., Plaintiffs, v. Kenneth T. CUCCINELLI II, in his purported official capacity as acting Director of U.S. Citizenship and Immigration Services, et al., Defendants.
CourtU.S. District Court — District of Columbia

John T. Lewis, III, Democracy Forward Foundation, Washington, DC, Manoj Govindaiah, Refugee and Immigrant Center for Education and Legal Services, San Antonio, TX, Bradley Jenkins, Catholic Legal Immigration Network, Inc., Silver Spring, MD, for Plaintiffs.

Archith Ramkumar, James Mahoney Burnham, U.S. Department of Justice, Julian Michael Kurz, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

Under the Appointments Clause of Article II of the Constitution, the President must obtain "the Advice and Consent of the Senate" before appointing any principal officer of the United States and, unless Congress vests the appointment power in the President, a court, or a department head alone, before appointing any inferior officer as well. U.S. Const., Art. II, § 2, cl. 2. This requirement is "more than a matter of ‘etiquette or protocol’; it is among the significant structural safeguards of the constitutional scheme." Edmond v. United States , 520 U.S. 651, 659, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997) (quoting Buckley v. Valeo , 424 U.S. 1, 125, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam)). By dividing authority between the President and the Senate, the Appointments Clause serves as a check on both branches of government and a means of "promot[ing] ... judicious choice[s] of [persons] for filling the offices of the union." The Federalist No. 76, at 454–59 (C. Rossiter ed. 1961) (A. Hamilton). "The constitutional process of Presidential appointment and Senate confirmation, however, can take time," raising the prospect that the duties and functions assigned to an office requiring Presidential appointment and Senate confirmation (referred to as a "PAS" office) can go unperformed if the President and Senate "cannot promptly agree on a replacement." NLRB v. SW General, Inc. , ––– U.S. ––––, 137 S. Ct. 929, 934–35, 197 L.Ed.2d 263 (2017). Recognizing this reality, Congress has, since the early days of the Republic, authorized "the President to direct certain officials to temporarily carry out the duties of a vacant PAS office in an acting capacity, without Senate confirmation." Id. at 934, 137 S.Ct. 929.

The Federal Vacancies Reform Act of 1998 ("FVRA"), 5 U.S.C. § 3345 et seq. , represents the "latest version of that authorization." SW General, Inc. , 137 S. Ct. at 934. Subject to exceptions not relevant here, it sets forth the exclusive means of temporarily filling vacancies in PAS offices. The default rule under the FVRA is that the "first assistant" to the vacant office automatically serves as the acting official when a vacancy arises. 5 U.S.C. § 3345(a)(1). That default rule applies unless the President, and only the President, directs that (1) a person who has been confirmed by the Senate to serve in another PAS office or (2) an officer or employee of the agency in question, who has worked for that agency in a senior position for at least 90 of the 365 days preceding the vacancy, "perform the functions and duties of the vacant office temporarily in an acting capacity." Id. § 3345(a)(2) and (3). The question presented in this case is whether the acting Director of the United States Citizenship and Immigration Services ("USCIS"), Kenneth Cuccinelli II, was appointed in conformity with the FVRA.

The relevant events began on June 1, 2019, when Lee Francis Cissna, the Senate-confirmed Director of USCIS, resigned, and, as the FVRA prescribes, his "first assistant," Deputy Director Mark Koumans, automatically assumed the post of acting Director. See Dkt. 22-1 at 14 (Pls.' SUMF ¶¶ 81–84); Dkt. 17-2 at 5–7, 12 (USCIS order of succession); Dkt. 12-6 at 2 (Monk Decl. ¶ 6). Koumans's tenure, however, was short-lived. Nine days after Director Cissna's resignation, the then-serving acting Secretary of the Department of Homeland Security, Kevin McAleenan, appointed Cuccinelli "to serve as the Principal Deputy Director of [USCIS]," Dkt. 17-4 at 5 (Blackwell Decl., Ex. 1), a position that did not exist prior to Cuccinelli's appointment, see Dkt. 17-2 at 12 (Johnson Decl., Ex. 1 at D-1). That same day, acting Secretary McAleenan also revised USCIS's order of succession, designating the newly created position of Principal Deputy Director as "the First Assistant and most senior successor to the Director of USCIS." Dkt. 17-4 at 7 (Blackwell Decl., Ex. 2). These two changes—both of which occurred after the vacancy arose—allowed Cuccinelli to leapfrog Koumans to become USCIS's acting Director.

But neither of these changes was designed to endure. Acting Secretary McAleenan specified that Cuccinelli's appointment as Principal Deputy Director "will remain in effect until the earlier to occur of (1) the appointment of a Director of USCIS by the President of the United States, or (2) the express revocation of this appointment." Id. at 5 (Blackwell Decl., Ex. 1). And acting Secretary McAleenan specified that the revised order of succession, which re-designated the Principal Deputy Director position as the "first assistant" to the Director, "will terminate automatically, without further action, upon the appointment of a new Director of USCIS by the President." Id. at 7 (Blackwell Decl., Ex.2). In other words, as soon as the vacant office is filled, the status quo will be restored.

On July 2, 2019, three weeks after assuming his new office, Cuccinelli issued a memorandum announcing a revised policy for scheduling credible-fear interviews in expedited removal proceedings. AR 113. Under the revised policy, USCIS (1) reduced the time allotted for asylum seekers to consult with others prior to their credible-fear interviews from 72 or 48 hours to "one full calendar day from the date of arrival at a detention facility," AR 113 ("reduced-time-to-consult directive"), and (2) prohibited asylum officers from granting asylum seekers extensions of time to prepare for their credible-fear interviews, "except in the most extraordinary of circumstances," id. ; see also AR 114 ("prohibition-on-extensions directive"). Although not reflected in the memorandum, Plaintiffs assert that Cuccinelli also cancelled "[t]he in-person [legal] orientation process that was" previously "in place" at the Dilley Detention Center in Dilley, Texas. Dkt. 12-2 at 3–4 (Fluharty Decl. ¶¶ 6–7) ("in-person-orientation directive"). Before its cancellation, according to Plaintiffs, that policy "allowed asylum seekers to ask questions about their legal rights, provided the only means of transmitting information to asylum seekers who cannot read, and facilitated understanding for asylum seekers with special needs, including disabilities or competency issues." Dkt. 12 at 18; see also Dkt. 12-2 at 3–4 (Fluharty Decl. ¶¶ 6–7). Taken together, Plaintiffs refer to these revised policies as the "Asylum Directives."

Plaintiffs, five individual native Honduran asylum seekers (two adults and three of their minor children) and the Refugee and Immigrant Center for Education and Legal Services ("RAICES"), a nonprofit organization that provides legal services to refugees, challenge the lawfulness of the Asylum Directives on multiple grounds. First, they allege that Cuccinelli was not lawfully appointed to serve as the acting Director of USCIS and that, as a result, the Asylum Directives must be set aside under the Appointments Clause, the FVRA, 5 U.S.C. § 3348(d)(1), the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), and as ultra vires. Dkt. 1 at 63–68 (Compl. ¶¶ 225–36). Second, they allege that the Asylum Directives themselves are inconsistent with various statutory and regulatory requirements, including an asylum applicant's statutory right to "consult with a person or persons of the alien's choosing prior to the [credible-fear] interview," 8 U.S.C. § 1225(b)(1)(B)(iv), and the regulatory authority of asylum officers freely to reschedule credible-fear interviews whenever the asylum seeker "is unable to participate effectively ... because of illness, fatigue, or other impediments," 8 C.F.R. § 208.30(d)(1). Dkt. 1 at 57–58 (Compl. ¶¶ 194–97). Third, they contend that the Asylum Directives are arbitrary and capricious because USCIS failed to consider how the Directives harm asylum seekers, acted based on "animus toward immigrants" and failed to provide an adequate justification for the policy changes. Id. at 58–59 (Compl. ¶¶ 198–204). Fourth, they further allege that USCIS failed to comply with the APA's notice-and-comment and advanced-notice requirements. Id. at 59–60 (Compl. ¶¶ 207–08). Fifth, Plaintiffs maintain that the Asylum Directives discriminate against asylum seekers with "trauma-related and other mental impairments

" in violation of the Rehabilitation Act, 29 U.S.C. § 701 et seq.

Id. at 60–62 (Compl. ¶¶ 209–18). Finally, they allege that the Asylum Directives violate the First Amendment by interfering with the ability of the individual Plaintiffs and RAICES "to communicate and [to] associate" with one another regarding the individual Plaintiffs' legal rights. Id. at 62–63 (Compl. ¶¶ 219–23).

As explained below, the Court is satisfied that at least one Plaintiff has Article III standing and that the Court has statutory jurisdiction over Plaintiffs' challenges to the reduced-time-to-consult and prohibition-on-extensions directives. The Court is not persuaded, however, that it has statutory jurisdiction over Plaintiffs' challenge to the in-person-orientation directive. On the merits, the Court concludes that Cuccinelli was not lawfully appointed to serve as acting Director and that, as a result, he lacked authority to issue the reduced-time-to-consult and...

To continue reading

Request your trial
36 cases
  • Nw. Immigrant Rights Project v. U.S. Citizenship & Immigration Servs.
    • United States
    • U.S. District Court — District of Columbia
    • 8 October 2020
    ...duty" to encompass delegable duties that were not delegated during the 180-day window proceeding the vacancy. See L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 34 (D.D.C. 2020). But here, because the Secretary delegated the authority to issue Department rules in 2003, that power is not vested e......
  • Casa De Md., Inc. v. Wolf
    • United States
    • U.S. District Court — District of Maryland
    • 11 September 2020
    ...to "set aside" agency action that is "not in accordance with law" or "in excess of ... authority"); see also L.M.-M. v. Cuccinelli , 442 F. Supp. 3d 1, 35-36 (D.D.C. 2020) ; see also ECF No. 65 at 3 (Government acknowledging that "if Acting Secretary Wolf were not lawfully serving in an act......
  • Comm. Overseeing Action for Lumber Int'l Trade Investigations or Negotiations v. United States
    • United States
    • U.S. Court of International Trade
    • 18 August 2021
    ...plaintiffs negatively affected by prior determinations conducted in accordance with an invalid agency manual); L.M.-M. v. Cuccinelli , 442 F. Supp. 3d 1, 35–37 (D.D.C. 2020) (setting aside removal orders for the five plaintiffs before the court while declining to set aside orders for non-pa......
  • Montgomery v. Rosen
    • United States
    • U.S. District Court — District of Columbia
    • 28 December 2020
    ...an injunction unless doing so would ‘have [a] meaningful practical effect independent of [the policy's] vacatur.’ " L.M.-M v. Cuccinelli , 442 F. Supp. 3d 1, 36 (D.D.C. 2020) (quoting Monsanto Co. v. Geertson Seed Farms , 561 U.S. 139, 165, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010) ); see also......
  • Request a trial to view additional results
3 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT