Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Homeland Sec.
| Decision Date | 30 November 2020 |
| Docket Number | Civil Action No. 18-2473 (RC) |
| Citation | 507 F.Supp.3d 228 |
| Parties | CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, et al., Plaintiffs, v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Manoj Govindaiah, Refugee and Immigrant Center for Educaton and Legal Services, San Antonio, TX, Nikhel Sus, Citizens for Responsibility and Ethics in Washington, Washington, DC, for Plaintiffs.
Kathryn L. Wyer, U.S. Department of Justice, Washington, DC, for Defendants.
GRANTING DEFENDANTS’ MOTION TO DISMISS
Plaintiffs Citizens for Responsibility and Ethics in Washington ("CREW") and Refugee and Immigrant Center for Education and Legal Services, Inc. ("RAICES") brought this suit after the Trump Administration's rollout of a so-called "zero tolerance policy" on unlawful immigration. The policy, which lasted from April 6 to June 20, 2018, involved systematically detaining and criminally prosecuting undocumented aliens apprehended at the border for illegal entry. One of the consequences of the zero tolerance policy was the separation of children and adults (usually family members) who tried to cross the border together. Children could not be held in criminal custody with adults, so agencies within the Department of Homeland Security ("DHS") placed them into the custody of the Department of Health and Human Services ("HHS"). Poor documentation of the separation process meant that children were often separated from their adult companions—without communication—for weeks and months at a time. The President ended the zero tolerance policy after widespread public outcry.
This lawsuit concerns DHS's recordkeeping practices, which Plaintiffs allege played a key role in the agency's inability to reunite migrant children with the adults that accompanied them across the border. In their first amended complaint, Plaintiffs brought three claims against DHS and the Secretary of Homeland Security for declaratory and injunctive relief under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 – 706. The Court dismissed their claims. See Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Homeland Sec. (CREW I) , 387 F. Supp. 3d 33 (D.D.C. 2019). Plaintiffs amended their complaint and now bring a single claim: they assert, under the APA, that DHS's recordkeeping guidelines and directives violate several regulations implementing the Federal Records Act ("FRA"), 44 U.S.C. §§ 2101 – 2120, 2901 – 2911, 3101 – 3107, 3301 – 3314. Second Am. Compl. ("SAC") ¶¶ 74–83, ECF No. 31. They ask the Court to set aside DHS's recordkeeping guidelines as inadequate under the FRA and request an injunction commanding DHS to adopt FRA-compliant recordkeeping policies. Id. at 30. Defendants moved to dismiss Plaintiffs’ claim for lack of subject matter jurisdiction and for failure to state a claim. See Defs.’ Mem. Supp. Defs.’ Mot. Dismiss Pls.’ Second Am. Compl. ( ), ECF No. 33-1.
The Court grants Defendants’ motion. Plaintiffs have standing to challenge DHS's recordkeeping policies and, as required by the APA, they attack a discrete agency action. But when it comes to the merits of their claim, Plaintiffs have not alleged facts making it plausible that DHS's policies are arbitrary, capricious, an abuse of discretion, or contrary to the FRA.
The FRA is a set of statutes that "governs the creation, management and disposal of federal records." Armstrong v. Bush (Armstrong I) , 924 F.2d 282, 284 (D.C. Cir. 1991). It mandates that agency heads "make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency ... designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency's activities." 44 U.S.C. § 3101. It also requires that agencies "establish and maintain an active, continuing program" for records management that "shall provide for," among other things, "effective controls" over records creation and maintenance and "compliance with" the FRA and its implementing regulations. Id. § 3102.
Agencies are not the only ones responsible for making sure they properly preserve their records. The FRA gives the Archivist of the United States—the head of the National Archives and Records Administration ("NARA")—several important duties too. One of those duties is oversight: the Archivist must "conduct inspections or surveys of the records and the records management programs and practices within and between Federal agencies." Id. § 2904(c)(7). Another of the Archivist's duties is to "provide guidance and assistance" to agencies, id. § 2904(b), in part by "promulgat[ing] standards, procedures, and guidelines with respect to records management," id. § 2904(c)(1). Pursuant to that authority, the Archivist has issued a series of regulations providing agencies guidance on what kinds of records they should create and what their recordkeeping policies should include. See 36 C.F.R. §§ 1222.22 – .34.
Prior to the zero tolerance policy, NARA inspections of DHS and its component agency U.S. Customs and Border Protection ("CBP") uncovered flaws in both entities’ records management practices. See SAC ¶¶ 31–33. A report on DHS's program found several deficiencies, including that "DHS lacked a ‘Department-wide strategy for retention scheduling for email records’ and that ‘[c]urrent DHS email use and storage strategies do not allow for effective retention and retrieval of email.’ " Id. ¶ 31 (alteration in original) (quoting Nat'l Archives & Records Admin., Department of Homeland Security Records Management Program: Management Inspection Report, at ii–iii (2017), https://www.archives.gov/files/records-mgmt/resources/dhs-2016-inspection.pdf). A report on CBP detailed even more serious problems. It found, for example: that CBP's records management policies were "out of date or in draft form"; that CBP's records officers structure did not "ensure incorporation of recordkeeping requirements ... into agency programs, processes, systems, and procedures"; that CBP did not "integrate records management and recordkeeping requirements into the design, development, and implementation of its electronic systems"; that CBP did not "require records management training for all CBP staff" and what training it did offer did not meet NARA requirements; that CBP had "no strategic plan for records management"; and that CBP's plans for a records-management system were "at risk of failure due to lack of basic records management fundamentals." Id. ¶ 32 (quoting Nat'l Archives & Records Admin., U.S. Customs and Border Protection Records Management Program: Records Management Inspection Report ("NARA CBP Inspection Report") 3–6, 9–10 (2018), https://www.archives.gov/files/records-mgmt/pdf/cbp-2018-inspection.pdf). The report observed, "[i]n its current state, the records management program at CBP is substantially non-compliant with Federal statutes and regulations, NARA policies, ... and DHS Records and Information Management policies." Id. (alteration in original) (emphasis omitted) (quoting at NARA CBP Inspection Report 2).
According to Plaintiffs, deficiencies in DHS's recordkeeping policies "manifested acutely with disastrous results in connection with" the zero tolerance policy. SAC ¶ 35. And to be sure, "DHS's implementation of the zero tolerance policy was, by all accounts, a disaster." CREW I , 387 F. Supp. 3d at 40. The policy's emphasis on criminally prosecuting illegal entry coupled with a prior Trump Administration decision not to release certain migrants pending immigration or criminal proceedings resulted in thousands of family separations. Id. "Faced with resource limitations and other challenges," DHS was caught unprepared. Dep't of Homeland Sec. Off. of Inspector Gen., OIG-18-84, Special Review – Initial Observations Regarding Family Separation Issues Under the Zero Tolerance Policy ("DHS OIG Report") preface (2018), https://www.oig. dhs.gov/sites/default/files/assets/2018-10/OIG-18-84-Sep18.pdf). It "struggled to identify, track, and reunify families ... due to limitations with its information technology systems." 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." CREW I , 387 F. Supp. 3d at 40 (citing DHS OIG Report preface).
Government watchdogs conducted investigations and attributed much of the blame to inadequate recordkeeping. The DHS Inspector General "observed that a lack of a fully integrated Federal immigration information technology system made it difficult for DHS to reliably track separated parents and children." DHS OIG Report 4. For example, SAC ¶ 49 () (quoting DHS OIG Report 9–10).
Similarly, CBP "did not have a uniform, reliable system for creating records documenting family separations and transmitting them to HHS." Id. ; see also Gov't Accountability Off., GAO-19-163, Unaccompanied Children: Agency Efforts to Reunify Children Separated from Parents at the Border 16 (2018), https://www.gao.gov/assets/700/694918.pdf. CBP officials instead "manually enter[ed] information into a Microsoft Word document, which they then sen[t] to HHS as an email attachment." SAC ¶ 49 (quoting DHS OIG Report 10). "CBP d[id] not create records documenting the information it transmit[ted]...
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