DeBraun v. Meissner, Civil Action No. 96-7340.

• Decision Date: 28 March 1997
• Docket Number: Civil Action No. 96-7340.
• Citation: 958 F.Supp. 227
• Parties: Rosa Ingrid Perez Fernandez DeBRAUN, t/a Immigration Information Services v. Doris MEISSNER, Commissioner, Immigration and Naturalization Service and M. Frances Holmes, Acting District Director, Philadelphia District.
• Court: U.S. District Court — Eastern District of Pennsylvania

Page 227

958 F.Supp. 227

Rosa Ingrid Perez Fernandez DeBRAUN, t/a Immigration Information Services v. Doris MEISSNER, Commissioner, Immigration and Naturalization Service and M. Frances Holmes, Acting District Director, Philadelphia District.

Civil Action No. 96-7340.

United States District Court, E.D. Pennsylvania.

March 28, 1997.

Michael E. Scullin, Philadelphia, PA, for plaintiff.

Kristal A. Marlow, Office of Immigration Litigation, Washington, DC, for defendant.

MEMORANDUM AND ORDER

DITTER, District Judge.

This case involves a challenge to a regulation promulgated by the Immigration and Naturalization Service to overcome problems arising from the taking of immigrants' fingerprints. Presently before me is defendants' motion to dismiss the complaint for failure to state a claim and for judgment on the pleadings. Plaintiff opposes that motion and, in the alternative, requests judgment on the pleadings with respect to the adequacy of the notice and comment procedures followed by the defendants in promulgating that regulation. For the reasons that follow, I will deny defendants' motion and grant plaintiff's motion.

I. Background¹

Since 1992, the plaintiff, Rosa Ingrid Perez Fernandez DeBraun, individually and trading as Immigration Information Services, has provided fingerprinting and photography services for immigrants and others at three different locations in Philadelphia, Pennsylvania: two permanent offices and a mobile recreational vehicle which, since 1992, she has routinely parked on 16th and Callowhill, immediately in front of the Immigration and Naturalization Service (INS) district office. Applicants for various types of immigration benefits must submit fingerprints with their application. The INS then sends the fingerprints to the Federal Bureau of Investigation which checks to see if the applicant has a criminal history, thereby rendering the applicant ineligible for benefits. In the past, INS district offices were responsible for fingerprinting all applicants. However, because available funding dwindled and the number of applications increased, outside providers have recently assumed the majority of the fingerprinting services.

Pursuant to an investigation by the Department of Justice's Office of Inspector General, which uncovered problems regarding fingerprint quality, the INS decided to regulate the fingerprinting process. In light of that goal, on May 15, 1995, the INS proposed a regulation, which it publicized in the Federal Register, and solicited comments from the public. See Certification of Designated Outside Entities to Take Fingerprints, 60 Fed.Reg. 25,856 (1995) (to be codified at 8 C.F.R. §§ 103 & 299) (proposed May 15, 1995). Through the regulation, the INS hoped that by certifying outside services to take the fingerprints of applicants for immigration benefits, it would facilitate the processing of the applications and "protect the integrity of the fingerprinting process while relieving the strain on Service resources." Id. Among other requirements, the proposed regulation stated that the fingerprinting service must "[m]aintain clean and suitable facilities that are accessible to the general public." Id. at 25,862 (citing proposed 8 C.F.R. § 103.2(e)(6)(xviii)). The public comment period ended in July of 1995. Without further notice or comment and almost one year later, on June 4, 1996, the INS published its final rule. As promulgated, section 103.2(e)(6)(xviii), the section contested by Ms. DeBraun, provides that the designated fingerprinting services (DFS) must "[m]aintain facilities which are permanent and accessible to the public. The use of the terms permanent and accessible to the public shall not include business or organizational operations in private homes, vans or automobiles, mobile cars, and removable stands or portable storefronts." Certification of Designated Fingerprinting Services, 61 Fed.Reg. 28,003, 28,012 (1996) (codified at 8 C.F.R. § 103.2(e)(6)(xviii)).

Ms. DeBraun's attorney wrote a letter to the INS inquiring whether a new round of public commentary would occur because, in his client's view, the requirement of permanency and the exclusion of operations in vans were material changes from the proposed regulation.² The INS did not respond to the letter.

Subsequently, Ms. DeBraun applied for certification as a fingerprinting service for her two permanent offices and the mobile van. The Philadelphia District Office of the INS certified her two permanent offices, but on February 25, 1997, the district office denied her application with respect to her mobile facility. Accordingly, after March 31, 1997, the INS will no longer accept fingerprints taken in her van.³

Basing her complaint primarily on the Administrative Procedures Act,⁴ Ms. DeBraun claims that the INS' conduct "in promulgating the Rule in question was arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the law." (Compl. ¶ 37). She states that the INS' action was "contrary to constitutional right, power, privilege, or immunity," (id. ¶ 38), that the INS acted in excess of its statutory authority, and that the INS failed to observe the procedures required by law. (Id. ¶¶ 39-40). In addition, she makes several other claims not relevant here.⁵

II. Standard of Review

Ms. DeBraun seeks injunctive and declaratory relief requesting that I enjoin⁶ INS officials from enforcing the requirement that a fingerprinting facility have a permanent, non-mobile location, specifically 8 C.F.R. § 103.2(e)(6)(xviii), and that I declare that section invalid. In response to Ms. DeBraun's complaint, the defendants have filed an answer and a "Motion to Dismiss and for Judgment on the Pleadings." See doc. # 10; see also Fed.R.Civ.P. 12(b)(6), 12(c).⁷ A party must file a 12(b)(6) motion prior to filing a responsive pleading. Accordingly, because the defendants have answered the complaint, I must treat this only as a motion for judgment on the pleadings. See Turbe v. Government of Virgin Islands, 938 F.2d 427, 428 (3d Cir.1991). Nonetheless, the standard for both motions is identical. Id. In addressing this motion, I am required to consider as true any well-pleaded factual allegations in the pleadings, I must draw any permissible inferences from those facts in the non-moving party's favor, and I may grant the defendants' motion only when the plaintiff has alleged no set of facts which, if subsequently proved, would entitle her to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). However, I am not obligated to consider as true any conclusory or legal allegations asserted by the non-moving party.

III. Discussion

Section 706(2) of the APA provides that I may invalidate an agency action if I find it to be, among other things,

(A) arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law[.] 5 U.S.C. 706(2) (1996). The scope of judicial review over agency actions is narrow. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983). However, before that restricted review can come into play, the agency must follow those procedures imposed on it by law.

Ms. DeBraun contends that the INS did not do so. She argues that the proposed rule never mentioned the word "permanent" and that consequently, "she had no reason or opportunity to address the issue of `permanence.'" (Compl. ¶¶ 16, 21). Therefore, Ms. DeBraun asserts that the rule, at least with respect to the permanency requirement and the exclusion of mobile facilities, is invalid. The INS responds that its provision regarding suitable facilities clearly raised the issue that the INS intended to regulate the physical and structural requirements of a DFS — including permanency and excluding the mobility of the facility.

Section 553 details the procedures an agency must follow when engaging in rulemaking.⁸ Specifically, § 553 requires in relevant part that

(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include:

(1) a statement of the time, place, and nature of public rule making proceedings;

(2) reference to the legal authority under which the rule is proposed; and

(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.

(c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose....

5 U.S.C. § 553(b)-(c) (1996).

The relevant standard when determining the adequacy of the notice and comment procedures provided by section 553 is that the "[a]gency notice must be sufficient to fairly apprise interested parties of the issues involved, so that they may present responsive data or argument relating thereto." S.Doc. No. 248, 79th Cong.2d Sess. 200 (1946); see also 5 U.S.C. § 553(b)(3) (notice must provide "either the terms or substance of the proposed rule or a description of the subjects and issues involved"). The Third Circuit has stated that "the submission of a proposed rule for comment does not of necessity bind an agency to undertake a new round of notice and comment before it adopts a rule which is different — even substantially different — from the proposed rule.... [T]he adequacy of the notice must be...