Nio v. United States Department of Homeland SecurityNio v. United States Department of Homeland Security
To be clear, the court does not mean to suggest that, if an entity is the source, no record or portion of a record may be withheld. For instance, the Government still may seek to redact, under Exemption 7(C), “the names of government personnel, the name of an attorney representing [the] unnamed source and the names of third parties who appear[] in the documents [provided by the unnamed source].” Defs.’ Reply at 8. Such withholdings, however, will raise both factual and legal questions that the parties must address. See Stern v. FBI, 737 F.2d 84, 91-94 (D.C. Cir. 1984); see also Beck v. U.S. Dep‘t of Justice, 997 F.2d 1489, 1493-94 (D.C. Cir. 1993). For example, if the source is an entity, does the outside lawyer acting on behalf of the source possess a personal privacy interest against disclosure of his or her identity, or does the lawyer lack a privacy interest because he or she is in fact acting on behalf of an entity that itself has no such interest? That same question pertains to an executive or employee who may be acting on behalf of the entity in providing information to the Government. By contrast, the identity of the source would likely have no impact on the privacy interests of Government personnel involved in the investigation of Abiomed or third-party individuals whose names happen to appear in the responsive records. See Schrecker v. U.S. Dep‘t of Justice, 349 F.3d 657, 666 (D.C. Cir. 2003). As to those persons, the standard public-private interest balancing required under Exemption 7(C) would apply. The parties should consider these distinctions in their next round of briefing.
Accordingly, for the foregoing reasons, the court denies both parties’ Motions for Summary Judgment without prejudice. No later than September 22, 2017, the parties shall file a Joint Status Report that addresses (1) the Government‘s knowledge of the source‘s identity as an entity or individual, and (2) whether the parties intend to renew their cross-motions for summary judgment and, if so, on what issues. The court will set a schedule for supplemental briefing, if needed, upon receipt of the Joint Status Report.
Elianis N. Perez, Colin Abbott Kisor, Sarah Lake Vuong, U.S. Department of Justice, Washington, DC, Kenneth A. Adebonojo, U.S. Attorney‘s Office for the District of Columbia, Washington, DC, for Defendants.
MEMORANDUM OPINION
ELLEN SEGAL HUVELLE, United States District Judge
Before the Court is plaintiffs’ motion for preliminary injunctive relief.1 Plaintiffs are
BACKGROUND
I. FACTUAL BACKGROUND
A. The MAVNI Program
Generally, enlistees in the United States Armed Forces must be either United States citizens or have legal permanent residence. See
Over the years of the MAVNI program‘s existence, DOD has increased the security screening requirements for MAVNI enlistees. (1st Miller Decl. ¶¶ 12-17.) As of September 30, 2016, DOD required that MAVNI enlistees complete an enhanced security screening before they can receive a favorable “military-service determination” (also called a “suitability-for-ser-
If the investigation reveals unmitigable derogatory information—such as “undue foreign influence“—the military suitability determination will be unfavorable and DOD can discharge the MAVNI enlistee under “other than honorable conditions,” such as an “uncharacterized” discharge. (8/23/2017 Tr. at 37-38; see PI Mot. Ex. 8; 1st Miller Decl. ¶ 14 (negative outcome “could result in an applicant‘s administrative discharge from the Armed Forces under any administrative characterization of service, including ‘other than honorable’ conditions“); 2d Miller Decl. at 9; Defs.’ Resp. to the Court‘s Aug. 24, 2017 Order Exs. A & B, Aug. 30, 2017, ECF No. 39 (“Defs.’ 8/30/2017 Resp.“).) 6 An uncharacterized discharge also means that the individual would no longer be eligible to become a naturalized citizen under the MAVNI program. (8/23/17 Tr. at 24-25.)
Although on its face, DOD‘s enhanced security screening requirements for MAVNI enlistees does not necessarily impact the adjudication of MAVNI naturalization applications, as explained infra, USCIS will not conduct an examination of a MAVNI naturalization applicant until the applicant successfully completes DOD‘s enhanced security screening.
B. Naturalization for MAVNI Enlistees
Generally, non-citizens who serve in the United States military during designated periods of hostilities are afforded an expedited path to citizenship. See
An applicant for naturalization pursuant to
Until recently, USCIS processed MAVNI naturalization applications in the same fashion as all other § 1440 applications, by following the generally-applicable requirements for naturalization, such as the FBI criminal background check, see
To date, USCIS has naturalized at least 10,000 MAVNI enlistees through the aforementioned process. (7/19/2017 Tr. at 57.) And, pursuant to an initiative to expedite processing of applications from enlistees who are at basic training, the “Naturalization at Basic Training Initiative,” USCIS adjudicated most of these applications in approximately 10 weeks’ time—MAVNI enlistees would submit their naturalization applications upon arrival at basic training (a process typically lasting 10 weeks)10 and USCIS would adjudicate the applications and naturalize MAVNI enlistees by the last week of basic training.11
Beginning in early 2017, though, USCIS began to delay the processing of MAVNI N-400 applications pending the results of DOD‘s enhanced security screening. (See, e.g., 1st Renaud Decl. ¶¶ 21-25; Renaud Decl. & Document Production, July 17, 2017 (“2d Renaud Decl.“) & attachment thereto (copies of USCIS documents referenced in 1st Renaud Decl. ¶¶ 23-26); 1st Miller Decl. ¶ 18.) According to DOD, “on or around April 2017,” it “informed USCIS that it was concerned about the naturalization of individuals whose Office of Personnel Management (OPM) background investigation and DOD counterintelligence security review has not yet been completed,” and thus, “DOD and USCIS jointly determined that it was in the best interest of the United States to ensure [that] the naturalization decision of USCIS was informed by the outcome of the completed OPM background investigation and the DOD counterintelligence security review.” (1st Miller Decl. ¶ 18; see also 2d Miller Decl. at 8-10.) On July 7, 2017, Daniel Renaud—Associate Director, Field Operations Directorate, of the USCIS Headquarters in Washington D.C.—provided “final agency guidance” to the USCIS Field Offices in an email with the subject line “Updated MAVNI N-400 Guidance.” (2d Renaud Decl. ¶¶ 3-4.) The email summarizes USCIS‘s authorization as follows:
USCIS has determined that the completion of DOD background checks is relevant to a MAVNI recruit‘s eligibility for naturalization. As such, all pending and future MAVNI cases may not proceed to interview, approval, or oath until confirmation that all enhanced DOD security checks are completed.
(2d Renaud Decl. attachment at 25.) Under the heading “Guidance,” it states:
USCIS must ensure that each MAVNI naturalization applicant demonstrates good moral character and attachment to the U.S. Constitution as required by the INA and 8 CFR. In order to do so, each applicant must receive proper DOD vetting and clearance in alignment with the September 30, 2016 MAVNI extension authorization and restrictions. Consequently, USCIS will not proceed to interview, approve, or oath any currently pending or future MAVNI naturalization applicants applying for naturalization under INA § 329, regardless of their active duty or reserve service, until all enhanced DOD security checks are completed.
(Id.)
In plaintiffs’ view, the USCIS‘s July 7, 2017 guidance amounts to an unlawful “hold” on the processing of MAVNI naturalization applications. Defendants initially accepted the description of USCIS‘s action as a “hold” (see 7/19/2017 Tr. at 101)—indeed the term “hold” appears in several earlier USCIS emails (see, e.g., 2d Renaud Decl. ¶¶ 3-4)—but subsequently has tried to disavow that label. (See Defs.’ Supp. Mem. of Law in Opp‘n to Pls.’ Mot. for Prelim. Inj. at 2, Aug. 14, 2017, ECF No. 31 (“Defs.’ Supp. Opp.“) (“July 7, 2017 guidance was intended to end all holds, while broadening existing background check resources under
However, these applications cannot be processed until all DOD enhanced security checks are complete. Field Operations is now engaged in discussions with DOD on the process DOD/USCIS will have to inform USCIS of MAVNI enlistees who have successfully completed the required enhanced background checks. We will keep you updated on the process and let you know of any cases that successfully complete the required enhanced background checks.
(Defs.’ Supp. Opp. Ex. B (emphasis added).) Thus, even if the USCIS‘s July 7, 2017 action is not labeled a “hold,” it appears to have the same effect—MAVNI naturalization applicants cannot be examined by USCIS until DOD completes its enhanced security screenings.
It further appears that MAVNI applicants must “successfully” complete DOD‘s enhanced security screening in order for USCIS to continue processing their naturalization applications. (8/23/2017 Tr. at 25 (MAVNI enlistee cannot naturalize if DOD discharges an enlistee under other than honorable conditions, “notwithstanding the presence or absence of an N-426 and whether it‘s revoked or not,” because “[y]ou have to have an honorable discharge if you are discharged.“).) 13
C. Plaintiffs
1. Enlistment
Between February and June 2016, each of the named plaintiffs enlisted in the United States Army‘s Selected Reserve of the Ready Reserve through the MAVNI program. Their enlistment contracts obligate them to serve eight years of service in the Army Reserve, six years of which must be served in the Selected Reserve. (Defs.’ Resp. to the Court‘s July 14, 2017 Order (“Defs.’ 7/17/2017 Resp.“) Ex. B (Pls.’ Enlistment Contracts), July 17, 2017, ECF No. 23.) Each plaintiff was assigned to a U.S. Army Selected Reserve unit and has participated in multiple drills with their units.14 (De Almeida Decl. ¶¶ 6, 8; Batchu Decl. ¶¶ 5, 7; Calixto Decl. ¶¶ 6, 8; Cheng Decl. ¶¶ 6, 8; Udeigwe Decl. ¶¶ 5, 8; Hong Decl. ¶¶ 6, 7; Li Decl. ¶¶ 4, 6; Liu Decl. ¶¶ 4, 6.) Although each plaintiff
2. Naturalization Applications
Between August 19, 2016, and March 23, 2017, while drilling with the DTP and awaiting a basic-training date, each named plaintiff applied for naturalization by filing their Form N-400, along with a properly executed N-426. Plaintiffs’ naturalization applications have now been pending for as little as five months or for as much as slightly over a year. Thus, even if plaintiffs’ USCIS examinations occurred today (which they will not because DOD has yet to complete enhanced security screening for any named plaintiff and USCIS is waiting on those screenings) USCIS could take up to an additional four months to reach a final decision on naturalization. See
3. DOD‘s N-426 Review
Further complicating matters for plaintiffs is the fact that DOD has undertaken a “review” of its policy for issuing N-426s and is contemplating revoking previously issued N-426s for MAVNI enlistees who have not served on “active-duty.” However, the status of DOD‘s N-426 Review is not entirely clear from the current record.
On July 7, 2017, defendants filed the declaration of Stephanie P. Miller—the Director, Accession Policy Directorate, in the Office of the Under Secretary of Defense for Personnel and Readiness, DOD—which stated that “Presently, DOD is not certifying any new MAVNI N-426s. For a variety of reasons, some [of] which remain classified, DOD is undertaking a review of the entire MAVNI pilot program, its procedures, and the standards for certifying approximately 400 existing N-426s.” (1st Miller Decl. ¶¶ 19-20.) Defendants also filed a declaration from Mr. Renaud which indicated that “USCIS understood that DOD might act to revoke some of the Forms N-426s that had been submitted
At the July 19, 2017 hearing, defense counsel stated that DOD “has not decertified any of the presently certified N-426 forms... [But] is not presently certifying any new N-426s.” (7/19/2017 Tr. at 20.) When asked if DOD was thinking of revoking N-426s “because somebody signed that wasn‘t a person with authority or because they were signed prematurely or that drilling [as opposed to active-duty service] does not count as honorable service,” counsel replied:
Right. And so in the [declaration] of Stephanie Miller she indicates that they‘re [referring to DOD] undertaking a review of the N-426 process. I don‘t know the contours of that process. I assume that everything that Your Honor just said will be part of that process for the rereview to either recertify or revoke.
(7/19/2017 Tr. at 24.) He further referred to plaintiffs’ N-426s as “potentially revocable” (7/19/2017 Tr. at 46), but he indicated that revocation of any of the eight named plaintiffs’ N-426s was not “imminent.” (7/19/2017 Tr. at 56.) Similarly, an attorney from DOD‘s Office of General Counsel who was present at the hearing represented that whether to revoke plaintiffs’ N-426s was “something that‘s being decided, Your Honor, right now.” (7/19/2017 Tr. at 48.) At the end of the hearing this Court asked defendants to file answers to a number of questions, including questions about the status of DOD‘s N-426 review.
In response, defendants filed a second declaration from Ms. Miller, which states that “members of the Selected Reserve... must have served in an ‘active duty status’ for DOD to certify honorable service,” and that DOD had “recently determined” that N-426s issued to an enlistee “without creditable active duty service could be considered signed in error and may be decertified upon the completion of a review of the existing standards for certifying approximately 400 existing N-426s.” (2d Miller Decl. at 6-7.)
However, on August 23, 2017, at the continuation of the preliminary injunction hearing, defense counsel appeared to refute Ms. Miller‘s declaration:
With respect to Ms. Miller‘s second declaration which is ECF 25-2, her answer four is not a final answer in the sense that it says the DOD has determined that you have to have active duty status—and we discussed this a bit at the last hearing. That is not the final position of the United States. There‘s some inter-agency discussions going on right now and will in the coming weeks. That is not a final position of the United States, and it is not clear at this point that is going to be the final legal answer that the United States rests on.
(8/23/2017 Tr. at 10; see also 8/23/2017 Tr. at 16.) Counsel further stated that DOD was developing N-426 criteria on whether someone without active-duty status could receive an N-426, and he also explained that although DOD had told officers to stop issuing N-426s pending development of this criteria, some N-426s had been issued by accident since that instruction issued. (8/23/2017 Tr. at 11-12, 14.) With regard to revocation, the most counsel could say is that “I‘m not certain that any will ever be revoked.” (8/23/2017 Tr. at 14.) When asked about the current status of DOD‘s N-426 Review, counsel‘s “best answer” was that “the procedures for N-426s, issuing new ones and reissuing or revoking old ones, has not been decided
This representation, however, is arguably contradicted by an August 17, 2017 DOD Memorandum, which plaintiffs brought to the Court‘s attention, in which Charles D. Luckey—the Chief of Army Reserve/Commanding—states that “[e]ffective immediately, I withhold authority to certify the honorable service (N-426) of Soldiers who have not yet attended Initial Entry Training (IET).” (8/23/2017 Hr‘g Pls.’ Ex. 2; see also Thomas Decl. ¶ 5, Aug. 29, 2017.) In a subsequent filing, defendants embrace this memorandum and claim that it is “consistent” with Ms. Miller‘s July 7, 2017 declaration in that it indicates that DOD is not “presently” certifying any new MAVNI N-426s. (Defs.’ 8/30/2017 Resp. at 2 & Ex. D.)
Although the record contains conflicting representations as to the current status of DOD‘s N-426 Review, there is no question that: (1) DOD‘s current view, despite what appears to be a clear conflict with the statutory language in
II. PROCEDURAL HISTORY
When plaintiffs’ naturalization applications were not adjudicated within their expected time frame, they made inquiries to USCIS and found that DHS/USCIS was “holding” their applications at the request of DOD pending DOD enhanced security screening. Plaintiffs filed their initial complaint on May 24, 2017, alleging that DOD‘s “interference” in the naturalization process and USCIS‘s acquiescence to DOD‘s request to hold MAVNI applications pending completion of DOD‘s background checks were unlawful. On June 28, 2017, following a Washington Post story revealing the existence of an internal DOD Action Memo, dated May 19, 2017, which indicated that DOD proposed never completing the enhanced security screening for MAVNIs currently in the DTP (see PI Mot. Ex. 8), plaintiffs filed a motion for a preliminary injunction.
Defendants filed their opposition on July 7, 2017—the same day that USCIS issued its field guidance formally instituting a “hold” on MAVNI applications. Mr. Renaud‘s declaration, which was attached to defendants’ opposition, referenced a number of internal documents, including the July 7th USCIS field guidance. This Court ordered defendants to provide the referenced documents relating to USCIS‘s decision to hold adjudication of MAVNI applications pending enhanced security screening. (Order, July 14, 2017, ECF No. 22.) On July 17, 2017, the July 7th USCIS field guidance was first provided as a result of defendants’ filing of a second declaration from Mr. Renaud with attachments. (2d Renaud Decl. ¶ 3.)17 Then at a July 19,
Following the hearing, and given the questions that arose at the hearing and the need for additional briefing, the Court ordered (1) defendants to file supplemental declarations responding to specific questions posed by the Court; (2) plaintiffs to file an amended complaint and a revised request for preliminary relief; (3) defendants to supplement their opposition to the motion for preliminary injunction; and (4) plaintiffs to file a reply to defendants’ supplemental opposition. (See Order, July 19, 2017, ECF No. 24.) At a hearing on August 23, 2017, the Court learned of additional developments, leading it to require further submissions from defendants and to conduct an ex parte review of two classified documents that defendants had cited to support their national security justification for the DHS Security Screening Requirement—“the 2017 Inspector General Report” and the “2017 Defense Intelligence Agency Report.” (Order, August 24, 2017, ECF No. 36.) Defendants filed their responses to the Court‘s questions and provided the documents for review on August 30, 2017.
The Court is now in a position to rule on the motion for preliminary injunction.
DISCUSSION
I. LEGAL STANDARD
A preliminary injunction grants “intermediate relief of the same character as that which may be granted finally.” De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945). It is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20. The final two factors merge where, as here, the government is the opposing party. See Pursuing America‘s Greatness v. Fed. Election Comm‘n, 831 F.3d 500, 511 (D.C. Cir. 2016); see also Nken v. Holder, 556 U.S. 418, 435 (2009).
II. PRELIMINARY INJUNCTION AGAINST DOD DEFENDANTS
Given that
In short, the fact that DOD has stopped issuing any new N-426s while its N-426 Review is ongoing has no impact on plaintiffs. Given this conclusion, this Court need not address the remaining preliminary-injunction factors and denies preliminary injunctive relief against DOD on the ground that, at least at this stage, plaintiffs have failed to establish any imminent injury from DOD‘s current N-426 Review. Chaplaincy of Full Gospel Churches, 454 F.3d at 297; see also Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 162 (2010).
III. PRELIMINARY INJUNCTION AGAINST DHS DEFENDANTS
The Court denies plaintiffs’ motion for a preliminary injunction against DHS Defendants. Plaintiffs have met their burden on irreparable harm, but have yet to make a strong enough showing of a likelihood of success on the merits to succeed at this stage. In addition, a balancing of plaintiffs’ irreparable harm against the public interest does not tip decidedly in plaintiffs’ favor. See Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011); see also Morales v. Sec‘y, U.S. Dep‘t of State, 220 F.Supp.3d 1, 4 (D.D.C. 2016).
A. Irreparable Harm
The record demonstrates that the DHS Security Screening Requirement is causing irreparable harm to plaintiffs. “[T]o meet the standard for irreparable harm the movant must present sufficient evidence that the purported injury is certain, great, actual, imminent, and beyond remediation.” Save Jobs USA v. U.S. Dep‘t of Homeland Sec., 105 F.Supp.3d 108, 112-13 (D.D.C. 2015); see also Chaplaincy of Full Gospel Churches, 454 F.3d at 297. All eight plaintiffs are suffering irreparable harm because they are not obtaining citizenship rights and benefits, and, as a result of the legal limbo DHS Defendants have left them in pending resolution of their naturalization applications, their ability to travel and pursue professional and personal opportunities has been curtailed. See, e.g., Roshandel v. Chertoff, 554 F.Supp.2d 1194, 1200-01 (W.D. Wash. 2008), amended in part, No. C07-1739MJP, 2008 WL 2275558 (W.D. Wash. June 3, 2008). While it is true that there is no right to naturalization, USCIS cannot indefinitely delay adjudication of MAVNIs’ naturalization applications, and they cannot impose requirements that contravene statutory or regulatory requirements. See
Representations made to plaintiffs in their enlistment contracts and by actors responsible for implementing the MAVNI program led plaintiffs to reasonably believe that USCIS would process their applications for naturalization quickly and without the extensive delay and hardship that has been caused by USCIS‘s reliance on DOD‘s enhanced security screening. (See, e.g., Calixto. Decl. ¶ 7.) As a result, plaintiffs are forced to live in uncertainty about the legality of their immigration status, and they are prevented from ordering their day-to-day affairs or from making future plans, including travel abroad to see family members. See, e.g., Vartelas v. Holder, 566 U.S. 257, 268 (2012) (noting that “[l]oss of the ability to travel abroad is itself a harsh penalty, made all the more devastat-ing if it means enduring separation from
Significantly, four plaintiffs have lost their lawful immigration status during the delay and have no legal protection from removal and deportation proceedings. (8/23/2017 Tr. at 31-32, 69; 2d Miller Decl. at 9; PI Mot. Ex. 24, at 3.) DHS refuses to give the Court any assurance that these plaintiffs will not be removed. (See Asher Decl. ¶ 7; see also 7/19/2017 Tr. at 13-14; 8/23/2017 Tr. at 22-25, 27-28; 8/23/2017 Hr‘g Pls.’ Ex. 1.) These plaintiffs enlisted in the MAVNI program over a year ago with the clear understanding, based on the explicit representations of the government, that they would become naturalized citizens, not illegal immigrants.18 Thus, plaintiffs have established irreparable harm. See Chaplaincy of Full Gospel Churches, 454 F.3d at 297; Save Jobs USA, 105 F.Supp.3d at 112-13.
B. Likelihood of Success on the Merits
While plaintiffs have presented a host of legal arguments, the Court cannot conclude at this stage that they have cleared the high hurdle of demonstrating a likelihood of success on the merits on any specific claim.19 Even viewing the July 7th USCIS field guidance as final agency action within the meaning of the APA,20 plaintiffs still face additional legal obstacles.
1. Claims under APA § 706(2)
a. Contrary to Law
Plaintiffs claim that the addition of an enhanced security screening is contrary to law, which this Court construes as a challenge under
Having reviewed under seal the two 2017 classified documents completed by the Inspector General and the Defense Intelligence Agency, the Court cannot ignore (1) that enlistment of foreign nationals in the military implicates national security concerns outlined in the classified documents, and (2) that these national security concerns can bear on an applicant‘s good moral character, attachment to the Constitution, and disposition towards the United States.
b. Arbitrary and Capricious
Plaintiffs also argue (1) that DHS Defendants acted in an arbitrary and capricious manner when they abruptly added the DHS Security Screening Requirement, and (2) that this Court should treat any national security justifications for the policy as a post hoc rationalization.
Defendants argue that the DHS Security Screening Requirement only implements existing statutory and regulatory provisions that permit investigation of an applicant‘s good moral character. See
There can be no doubt that the DHS Security Screening Requirement is a dramatic change in DHS/USCIS policy. See
For seventeen years, USCIS relied on an FBI background check and a DCII inquiry to vet MAVNI applicants. DHS/USCIS has never used a tool like the DHS Security Screening Requirement, and “[a] central principle of administrative law is that, when an agency decides to depart from decades-long past practices and official policies, the agency must at a minimum acknowledge the change and offer a reasoned explanation for it.” Am. Wild Horse Pres. Campaign, 865 F.3d at 701; see also Lone Mountain Processing, Inc. v. Sec‘y of Labor, 709 F.3d 1161, 1164 (D.C. Cir. 2013).
However, based on the justifications offered by defendants in the classified documents reviewed by this Court, it cannot conclude that defendants’ explanation for its change in policy is a post hoc rationalization. See Menkes, 637 F.3d at 337. Nor can it characterize defendants’ change in policy as arbitrary and capricious when the policies respond to present national security concerns. Ziglar v. Abbasi, 137 S.Ct. 1843, 1861 (2017) (“National-security policy is the prerogative of the Congress and President.“); Schneider v. Kissinger, 412 F.3d 190, 195 (D.C. Cir. 2005); see also Adams v. Vance, 570 F.2d 950, 954 (D.C. Cir. 1978) (noting that application of injunctive-relief standards changes where core concerns of the executive branch are at stake).
c. Notice and Comment
Plaintiffs argue that defendants should have subjected their new eligibility requirement to notice and comment.
The DHS Security Screening Requirement appears to have the characteristics of a legislative rule. It is similar to the change in policy reviewed in Electronic Privacy Information Center v. U.S. Department of Homeland Security, 653 F.3d 1 (D.C. Cir. 2011) (hereinafter “EPIC“), which involved a challenge to the Transportation Security Administration‘s (“TSA“) decision to screen airline passengers by advanced imaging technology (“AITs“), instead of metal detectors. 653 F.3d at 2-3. TSA reached its decision to implement AIT screening without notice-and-comment, arguing that TSA‘s broad statutory mandate allows it to screen airline passengers for dangerous weapons. Id. at 3. In EPIC, TSA relied on its broad mandate to justify its decision to forego notice-and-comment procedures when adopting its policy on AITs. Id. at 4-5. The AIT program was clearly a new policy, but TSA still argued that it was not a legislative rule because it imposed no new substantive obligations on passengers—they always had to undergo screening, this was just another version. Id. at 6-7.
However, the D.C. Circuit was unpersuaded:
Concededly, there is some merit in the TSA‘s argument it has done no more than resolve an ambiguity inherent in its statutory and regulatory authority, but the purpose of the APA would be disserved if an agency with a broad statutory command (here, to detect weapons) could avoid notice-and-comment rule-making simply by promulgating a comparably broad regulation (here, requiring passengers to clear a checkpoint) and then invoking its power to interpret that statute and regulation in binding the public to a strict and specific set of obligations.
Notwithstanding the similarities between EPIC and the DHS Security Screening Requirement, this Court is unable to conclude that plaintiffs are likely to succeed on the merits of their notice-and-comment claim given the national security concerns that defendants cite for their change in policy. See id. at 8 (refusing to vacate a rule promulgated without notice-and-comment procedure because it “would severely disrupt an essential security operation“); see also
2. Claims under APA § 706(1)
In addition to their APA § 706(2) arguments, plaintiffs claim that the delay caused by the DHS Security Screening Requirement is itself unreasonable under
C. Harm to Defendants/Public Interest/Balance of the Equities
Finally, the Court cannot conclude that the balance of equities strongly favors plaintiffs. Plaintiffs correctly note that the DHS Security Screening Requirement is causing them irreparable harm. While their plight is regrettable, it cannot be concluded at this time that it is sufficient to override national security concerns. See Trump v. Int‘l Refugee Assistance Project, 137 S.Ct. 2080, 2087-88 (2017); Adams, 570 F.2d at 954-55; see also Wayte v. United States, 470 U.S. 598, 611 (1985) (noting the importance of the government‘s interest in ensuring national security). Therefore, the Court concludes that this factor does not necessarily favor plaintiffs.
CONCLUSION
For the reasons stated above, plaintiffs’ motion for a preliminary injunction is denied without prejudice. A separate Order, ECF No. 43, accompanies this Memorandum Opinion.
UNITED STATES of America, EX REL., Bridgette CARMICHAEL, Plaintiff, v. Raymond GREGORY, Defendant.
Civil Case No. 14-1702 (RJL)
United States District Court, District of Columbia.
Signed 09/05/2017
Filed 09/06/2017