N.S. v. Hughes
| Decision Date | 24 July 2020 |
| Docket Number | Case No. 1:20-cv-101-RCL |
| Parties | N.S., individually and on behalf of all others similarly situated, Plaintiffs, v. MICHAEL A. HUGHES, in his official capacity as U.S. Marshal for the District of Columbia Superior Court, Defendant. |
| Court | U.S. District Court — District of Columbia |
On May 7, 2020, this Court granted plaintiff N.S.'s Motion for a Preliminary Injunction against defendant and defendant's agents, subordinates, and employees and preliminarily enjoined them from seizing individuals for suspected civil immigration violations. The Court assumes familiarity with the Memorandum Opinion (ECF No. 39) and accompanying Order (ECF No. 40) issued on May 7, 2020. On June 4, 2020 the United States Marshals Service ("USMS") filed a Motion for Reconsideration (ECF No. 41). In that motion, the USMS cites—for the first time—a nonpublic, unpublished 2002 Order of the Attorney General that purportedly authorizes the USMS to carry out civil immigration arrests. The USMS also argues that the Court improperly determined that ICE detainers do not give the USMS authority to carry out civil immigration arrests. Upon consideration of the motion, opposition (ECF No. 46), and reply (ECF No. 49), the Court will DENY the USMS's request for reconsideration.
The parties disagree about the applicable standard for reconsideration. The USMS suggests that the Court should use Federal Rule of Civil Procedure ("Rule") 54(b), which provides that "any order or other decision, however designated, that adjudicates fewer than all the claims . . . may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Rule 54(b) relief is available "as justice requires." Cobell, 355 F. Supp. 2d 531, 539 (D.D.C. 2005). Relevant considerations "include whether the Court 'patently' misunderstood the parties, made a decision beyond the adversarial issues presented, made an error in failing to consider controlling decisions or data, or whether a controlling or significant change in the law has occurred." Isse v. Am. Univ., 544 F. Supp. 2d 25, 29 (D.D.C. 2008). Plaintiffs, however, believe that Rule 59(e) is the appropriate standard. Under Rule 59(e), the Court may grant reconsideration if the movant shows an intervening change of controlling law, the availability of new evidence that could not have been raised prior to the Court's order, or the need to correct a clear error or prevent manifest injustice. See Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). Under either standard, the Court has a great deal of discretion when deciding whether to reconsider a previous order, though the Court has more discretion to grant a motion brought under Rule 54(b).
Although the D.C. Circuit does not appear to have ruled directly on this issue, numerous Circuit Courts of Appeals apply Rule 59(e) to motions for reconsideration of preliminary injunctions. See, e.g., Favia v. Indiana Univ. of Pennsylvania, 7 F.3d 332, 337-38 (3d Cir. 1993) (); Fin. Servs. Corp. of Midwest v. Weindruch, 764 F.2d 197, 198 (7th Cir. 1985) (). Although defendant cites Dunlap v. Presidential Advisory Comm'n on Election Integrity, 319 F. Supp. 3d 70 (D.D.C. 2018), a U.S. District Court for the District of Columbia case applying Rule 54(b) to a motion for reconsideration of a preliminary injunction order, this District Court has also applied Rule 59(e) to motions for reconsideration of the entry of a preliminary injunction. See, e.g., Fox TV Stations, Inc. v. FilmOn X LLC, 968 F. Supp. 2d 134, 140 (D.D.C. 2013) (). The Court agrees with N.S. that Rule 59(e) is the appropriate standard by which to assess a motion to reconsider a preliminary injunction, as a preliminary injunction is a directly appealable order.1
As explained below, the Court finds that the 2002 Order is not a valid basis for granting reconsideration under the Federal Rules of Civil Procedure. Even if the 2002 Order were a valid basis for reconsideration, the 2002 Order itself was facially invalid under the Administrative Procedure Act ("APA") when it was issued. Additionally, the USMS has made no new arguments that warrant reconsidering the Court's holding regarding the nature of ICE detainers. Therefore, the USMS's motion must be denied, and the preliminary injunction will remain in place.
The nonpublic, unpublished 2002 Order that defendant now cites is not a valid basis for reconsidering the issuance of a preliminary injunction. Order No. 2622-2002, titled "Delegation of Authority to the United States Marshals Service to Exercise the Powers and Duties of Immigration Officers," was issued on October 17, 2002 by Attorney General John Ashcroft. ECF No. 41-2. Not only did the USMS "regrettably neglect to present" this Order to the Court, ECF No. 41-1 at 9, but neither plaintiffs nor the Court had the ability to independently find this Order. Until now, this Order was solely in the government's possession, and the USMS failed to present it. The USMS's complete omission of this fact from its initial motion is indicative of just how far-fetched this request for reconsideration really is. See generally ECF No. 41. Indeed, the USMS does not cite a single case in which any court granted reconsideration based on facts or legal theories known only to the movant and which the movant failed to present. See generally ECF Nos. 41 & 49.
Moreover, even if this Order had been public, it was still the USMS's responsibility to bring it to the Court's attention. Evidence that the movant knew about (or should have known about) but which it failed to disclose is not a valid basis for a motion to reconsider. See Shatsky v. Palestine Liberation Org., 292 F. Supp. 3d 188, 192 (D.D.C. 2017) (). "[I]t is well-established that [a] motion[] for reconsideration . . . cannot be used as . . . a vehicle for presenting theories or arguments that could have been advanced earlier." Ali v. Carnegie Inst. of Washington, 309 F.R.D. 77, 81 (D.D.C. 2015). Defense counsel asserts that he did not know of the 2002 Order until after the preliminary injunction went into effect. ECF No. 49 at 17. The date upon which defense counsel actually learned of the 2002 Order, however, is irrelevant, as it was the USMS's responsibility to bring forward an internal order that purportedly gives it authority to make civil immigration arrests, especially when that order was in the government's sole possession. Therefore, no "manifest injustice" will occur under Rule 59(e) if the preliminary injunction is left in place, as the USMS could have submitted the 2002 Order to the Court any time before the preliminary injunction went into effect on May 7, 2020.2
Even if this were a proper motion to reconsider, the 2002 Order was facially invalid under the APA when it was issued, and it is thus incapable of providing the USMS with the authority to make civil immigration arrests. In challenging the 2002 Order, N.S. raises three issues that the Court must address: (1) did the Homeland Security Act of 2002 ("HSA") vitiate the 2002 Order; (2) did the 2002 Order satisfy the requirements set forth in the Administrative Procedure Act ("APA"); and (3) does the 2002 Order conflict with 8 C.F.R. § 287.5? As explained below, the Court finds that the HSA's savings provision applies to the 2002 Order, and thus the HSA did not vitiate the 2002 Order. The 2002 Order, however, violates the APA by failing to rely upon any applicable authority that would allow the Attorney General to issue the order, and it is thus invalid. Additionally, even if the 2002 Order were valid under the APA, allowing USMS officers to make civil immigration arrests would violate 8 C.F.R. § 287.5. Therefore, the 2002 Order does not provide the requisite authority for the USMS to make civil immigration arrests, and reconsideration based on the existence of the 2002 Order is not warranted.
Plaintiffs contend that the HSA—which centralized immigration enforcement authority in the Department of Homeland Security ("DHS")—vitiated the 2002 Order. The Attorney General issued the 2002 Order on October 17, 2002. The HSA was passed just over a month later on November 25, 2002 and transferred "all functions . . . personnel, assets, and liabilities" involving the "detention and removal program" from the Immigration and Naturalization Service ("INS") to DHS. Pub. L. No. 107-296 § 401, 116 Stat. 2192 (codified at 6 U.S.C. § 251 (2002)). The HSA abolished the INS once all transfers of authority were complete. Pub. L. No. 107-296 § 471, 116 Stat. 2205 (codified at 6 U.S.C. § 291 (2002)). Plaintiffs argue that the 2002 Order, which purported to delegate immigration enforcement authority from the INS to the USMS (both of which were housed in the Department of Justice at the time) did not survive the centralization and consolidation of that same authority into DHS.
The HSA represents a significant shift in immigration authority, and the "authorities" that were once exercised by the Attorney General and the INS "now reside in the Secretary of Homeland Security." Clark v. Martinez, 543 U.S. 371, 375 n.1 (2005); see also New York v. DOJ, 951 F.3d 84, 120 n.33 (2d Cir. 2020) (...
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