Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Homeland Sec., Civil Action No.: 18-2473 (RC)

• Citation: 387 F.Supp.3d 33
• Decision Date: 24 May 2019
• Docket Number: Civil Action No.: 18-2473 (RC)
• 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

387 F.Supp.3d 33

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, et al., Plaintiffs,

v.U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

Civil Action No.: 18-2473 (RC)

United States District Court, District of Columbia.

Signed May 24, 2019

Manoj Gorantla Govindaiah, Refugee and Immigrant Center for Education and Legal Services, San Antonio, TX, Nikhel Sus, Citizens for Responsibility and Ethics in Washington, Washington, DC, for Plaintiffs.

Johnny Hillary Walker, III, U.S. Attorney's Office for the District of Columbia, Kathryn L. Wyer, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION; GRANTING DEFENDANTS' MOTION TO DISMISS

RUDOLPH CONTRERAS, United States District Judge

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. BACKGROUND¹

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...