Rodriguez v. Brooks et al, No. 2:2017cv01200 - Document 39 (D. Ariz. 2018)
Court Description: ORDER - IT IS THEREFORE ORDERED that Defendants' Motion to Dismiss (Doc. 30 ) is denied. IT IS FURTHER ORDERED that the Clerk of the Court enter judgment in favor of Plaintiff Alberto Rodriguez against Defendants in their official capacity that the September 10, 2016 denial of Plaintiffs security clearance (Doc. 1-2 at 1-2), Acting Port Director Jason West's October 7, 2016 order denying Plaintiff's appeal (Doc. 1-4 at 1), and Directorof Field Operations William K. Brooks' ;s November 8, 2016 order denying Plaintiff's further appeal (Doc. 1-6 at 1) are reversed as invalid and his application is remanded for further action consistent with this Order. IT IS FURTHER ORDERED that Plaintiff's Motion for an Order to Show Cause Why Defendants Should Not Be Held in Civil Contempt (Doc. 32 ), treated as a motion for award of attorney fees under the Equal Access to Justice Act, is denied. IT IS FURTHER ORDERED that this Court retains jurisdiction to decide any further judicial review proceedings that may be brought from proceedings on remand. (See document for complete details). Signed by Senior Judge Neil V Wake on 8/24/18. (SLQ)
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Rodriguez v. Brooks et al 1 Doc. 39 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Plaintiff, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 No. CV-17-01200-PHX-NVW Alberto Rodriguez, ORDER v. The United States; The Department of Homeland Security; United States Customs and Border Protection; William K. Brooks as Director of Field Operations, Tucson Field Office, U. S. Customs and Border Protection; Jason West as Acting Port Director at Phoenix Sky Harbor International Airport, U. S. Customs and Border Protection; Heather Froese, as Assistant Port Director Phoenix Sky Harbor International Airport, U. S. Customs and Border Protection; Kimberly Kros, as Supervisory Officer, U. S. Customs and Border Protection; Todd C. Owen, as Assistant Commissioner of Office of Field Operations, U. S. Customs and Border Protection; Kevin K. McAleenan as Acting Commissioner of U. S. Customs and Border Protection; Elaine Duke, as Secretary of the Department of Homeland Security, 25 26 Defendants. 27 28 Dockets.Justia.com 1 Before the Court is the Government’s Motion to Dismiss. (Doc. 30.) (The 2 defendants, all federal officials sued in their official capacity, will be referred to as the 3 Government or Customs.) 4 Government to show cause why judgment on the pleadings should not be entered in 5 Plaintiff’s favor (Doc. 34), to which the Government responded (Doc. 36). 6 I. After that Motion was filed, the Court ordered the BACKGROUND 7 A. Factual Background 8 Plaintiff Alberto Rodriguez (“Rodriguez”), a United States citizen domiciled in 9 Phoenix, Arizona, brought this action for judicial review when United States Customs 10 and Border Patrol (“Customs”) denied his application for a security clearance in 2016. 11 (Doc. 1.) Rodriguez needed the clearance for his continued employment as a baggage 12 handler for American Airlines at Phoenix Sky Harbor International Airport. Upon denial 13 of his application, he lost his employment of eight years. 14 On September 9, 2011, Rodriguez drove from Arizona to California for a friend’s 15 birthday party. (Doc. 17 at 3, ¶ 23.) Two friends, including Joel Sanchez, were in the 16 car. (Id.) Soon after the group crossed into California, Customs officers pulled them 17 over. (Doc. 1-1 at 1.) The three friends were detained without explanation. (Id.) 18 Rodriguez was held for six to seven hours, and his car was impounded. (Id.) He was 19 released that day, not charged with any crime, and told he would not be charged with any 20 crime. (Id.) 21 Sanchez was also released, but it turns out he was in the country illegally. 22 According to Customs, Sanchez was “subsequently issued a Notice to Appear in 23 immigration court and deported.” (Doc. 32-2 at 1.) Rodriguez believed “Sanchez had 24 lived in the United States since he was a baby” and “was in the process of obtaining 25 lawful status through his sister.” (Doc. 1-1 at 1.) He also believed Sanchez “had a 26 document from U.S. Immigration to prove he was in process” and an Arizona driver’s 27 license. (Id.) Rodriguez states his “only intent was to go to California to visit a friend for 28 -2- 1 the weekend and return to Arizona”; he “had no intent to help Joel Sanchez violate any 2 immigration laws.” (Id.) 3 Four years after the events in California, Rodriguez applied for a security 4 clearance. This was the first time he had to apply for such a clearance through Customs, 5 though he had worked in the same position with American Airlines since 2008 based on 6 clearances issued by the City of Phoenix, which operates the airport. As explained at the 7 August 22, 2018 oral argument, Customs had recently decided to issue security 8 clearances itself for airport employees who accessed areas of international flights. 9 Because his work included access to such areas, the airline and he sought such clearance 10 for Rodriguez. 11 12 On September 10, 2016, his application was denied pursuant to 19 C.F.R. § 122.183(a). (Doc. 1-2.) The following was the entirety of the explanation provided: 13 On or about September 9, 2011, you were arrested by United States Border Patrol agents near Blyth, California as a driver of vehicle carrying one illegal alien. This is a violation of 19 CFR 122.183(a)(4)(xxxiv), “Any violation of a U.S. Immigration law,….” This is reason for denial. 14 15 16 (Id.) 17 Section 122.183(a) says Customs will not grant a security clearance “to any person 18 whose access to the Customs security area will, in the judgment of the port director, 19 endanger the revenue or the security of the area or pose an unacceptable risk to public 20 health, interest or safety, national security, or aviation safety.” It then lists specific 21 examples of bases for denial, including “a disqualifying offense committed by the 22 applicant.” Id. An “applicant commits a disqualifying offense if the applicant has been 23 convicted of . . . or has committed any act or omission involving” a disqualifying offense. 24 Id. One of the listed disqualifying offenses is any “violation of a U.S. immigration law.” 25 Id. § 122.183(a)(4)(xxxiv). 26 Rodriguez retained counsel to handle an administrative appeal. (Doc. 17 at 6, 27 ¶ 27.) His attorney tried to identify a statute that Rodriguez could have violated. (Doc. 28 1-3.) He argued in the appeal letter that no statute applied because there was no evidence -3- 1 or probable cause to think the travel with friends was in furtherance of an immigration 2 offense by his friend. There was no basis to think Rodriguez had the mens rea to have 3 committed any crime. (See id. at 1-2.) 4 The Acting Port Director, Jason West (“West”), denied Rodriguez’s appeal on 5 October 7, 2016. (Doc. 1-4.) 6 Rodriguez “access to [Customs] Security areas” would, in the conclusory language of the 7 regulations, “endanger the revenue or the security of the area or pose an unacceptable risk 8 to public health, interest or safety, national security or aviation safety.” (Id.) His letter 9 parroted the words of the regulation but still did not say what law Rodriguez had violated. 10 He “decided, within my discretion,” that granting (See id.) 11 On his further appeal, Rodriguez submitted a three-page, single-spaced letter that 12 developed earlier arguments and added new ones, including that the refusal to consider 13 the facts and arguments presented was an abuse of discretion. It could also be taken as a 14 demand that the agency exercise discretion. (Doc. 1-5.) 15 16 17 18 19 20 21 22 23 24 25 26 27 In a three-sentence letter, the Director of Field Operations denied the appeal with no explanation: I am in receipt of your letter requesting that I vacate the Port Directors [sic] decision and clear Mr. Rodriguez to access the [Customs] Security Area, Zone 2 at the Phoenix Sky Harbor International Airport. I am unable to facilitate your request at this time. I fully support the decision of the Port Director, Phoenix Sky Harbor International Airport. (Doc. 1-6.) Rodriguez’s administrative appeals options were exhausted. This action for judicial review followed. B. First Motion to Dismiss Rodriguez’s Complaint sought “mandamus to compel an evidentiary hearing, a declaratory judgment that § 122.183(a) is unconstitutionally vague, instructions on procedures constitutionally required in the administrative proceeding, judicial review of final agency action under the Administrative Procedure Act, and remand under the 28 -4- 1 Administrative Procedure Act for failure to follow the agency’s own regulations.” (Doc. 2 28 (citing Doc. 1).) The Government moved to dismiss all claims. (Doc. 22.) 3 The Court dismissed all claims except the claim for remand for violation of the 4 Administrative Procedure Act. The Act does not authorize substantive judicial review of 5 action committed to agency discretion by law. (Id. at 10-11.) But even for such action, 6 the Administrative Procedure Act provides for judicial review of agency action found to 7 be made “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). 8 Under United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), “procedures 9 required by law include an agency’s own regulations and internal operating procedures, 10 even for substantive decisions committed to discretion.” (Doc. 28 at 6.) Accardi dealt 11 with action expressly committed to agency discretion but still remanded for failure to 12 exercise the discretion required by the regulations. 347 U.S. at 268. 13 19 C.F.R. § 122.183(b) requires that an applicant denied a clearance for Customs 14 security areas be given written notice “fully stating the reasons for denial.” 15 regulation bars reporting those reasons to the applicant’s employer, but it also says that 16 Customs will inform the employer “that the detailed reasons for the denial have been 17 furnished to the applicant.” Id. (emphasis added). The 18 In Cheney v. Department of Justice, 479 F.3d 1343, 1352 (Fed. Cir. 2007), a case 19 the Government says applies here, the court interpreted a statute requiring the agency to 20 provide “written notice . . . stating the specific reasons” for suspension of a security 21 clearance. The court explained that “the employee must be given enough information to 22 enable him or her to make a meaningful response to the agency’s proposed suspension of 23 the security clearance.” Id. That was not done for the plaintiff in Cheney. “The notice of 24 suspension also stated that Mr. Cheney had ‘failed to comply with security regulations’ 25 and that he had ‘demonstrated a pattern of dishonesty and/or rule violations.’ We fail to 26 see how Mr. Cheney could have made a meaningful response to such broad and 27 unspecific allegations when there was no indication of when his alleged conduct took 28 place or what it involved.” Id. “While Mr. Cheney was told, in general terms, the -5- 1 reasons for the suspension of his security clearance, he was not given the allegations that 2 supposedly supported those reasons so that he could make a meaningful response to the 3 proposed suspension.” Id. at 1353. “For example, he was not told what the nature of his 4 alleged derogatory personal conduct was. Neither was he told what laws and [] standards 5 of conduct he had violated.” Id. Had the agency provided him “with that information, 6 considered his response to the charges against him, and then suspended his security 7 clearance,” there could be no judicial review of the substantive determination. Id. 8 The Cheney case does apply here, but it is against the Government. 9 September 10, 2016 letter denying Rodriguez his security clearance did not point to any 10 law Rodriguez had violated and did not “fully stat[e] the reasons for denial.” It therefore 11 did not allow for “meaningful response” and forced Rodriguez to guess what law he had 12 supposedly violated. Rodriguez stated an Accardi claim, and the motion to dismiss was 13 denied. The 14 The Court also focused on two obvious holes with respect to the denial letter and 15 the “detailed reasons” that must be given for denial. First, no statute imposes strict 16 liability for transporting undocumented aliens. If done with knowledge or “in reckless 17 disregard of the fact” that an alien “has come to, entered, or remains in the United States 18 in violation of the law,” it is a crime to transport the undocumented alien “in furtherance 19 of such violation of law.” 8 U.S.C. § 1324(a)(1)(A)(ii). The “in furtherance” element, 20 like the rest of that penal statute, is “strictly construed”; “there must be a direct or 21 substantial relationship between [] transportation and its furtherance of the alien’s 22 presence in the United States.” United States v. Moreno, 561 F.2d 1321, 1323 (9th Cir. 23 1977). 24 qualification placed there by Congress a nullity. To do this would potentially have tragic 25 consequences for many American citizens who come into daily contact with 26 undocumented aliens and who, with no evil or criminal intent, intermingle with them 27 socially or otherwise.” Id. “Thus, given the facts recounted above, Customs’s notice to 28 Rodriguez could not sensibly have been referring to § 1324(a)(1)(A)(ii).” (Doc. 28 at 8.) “A broader interpretation of the transportation section would render the -6- 1 Mere social travel with people believed to be regularizing their doubtful presence in the 2 country, as innumerable people are doing, is not by any stretch a crime. 3 In addition, it is patently groundless to say that § 122.183(a) applies here because 4 the applicant “has committed any act or omission involving” a disqualifying offense or 5 that there is evidence of an investigation “establishing probable cause to believe that the 6 applicant has engaged in any conduct” that could lead to conviction for a disqualifying 7 offense. The September 10, 2016 letter did not say that Rodriguez committed an act or 8 omission or that there was probable cause to believe he had engaged in conduct that 9 could lead to a conviction for a disqualifying offense. That contention is foreclosed by 10 failure to include it in the “detailed reasons” for the denial. The letter said Rodriguez was 11 arrested for violating immigration law, not because there was probable cause to think he 12 violated the law. Customs may deny a clearance only for the reasons it gives. Those 13 reasons must be detailed. 19 C.F.R. § 122.183(b). An applicant is not required to rebut 14 every possible ground for denial that Customs did not invoke. (Doc. 28 at 9.) 15 The Administrative Procedure Act’s exemption from substantive review of actions 16 committed to agency discretion by law still requires agencies to follow their own 17 regulations about how they take such action. 19 C.F.R. § 122.183(b) requires a written 18 statement fully stating the reasons for denial and “detailed reasons” about how and why 19 discretion was exercised, not only to show how discretion was exercised but also to show 20 it was exercised. Neither that regulation nor the Administrative Procedure Act authorizes 21 a black hole of secrecy to hide arbitrary action or failure to exercise discretion. 22 C. 23 Not satisfied with its action once it was sued and after denial of the Government’s 24 motion to dismiss, Customs sent Rodriguez a second letter purporting to deny his 25 clearance again, though no application was then pending. (Doc. 30 at 2; Doc. 30-1 at 2.) 26 The letter was misdated “June 19, 2016,” but Customs says it was sent on June 20, 2018. 27 The June 20, 2018 letter was written by Acting Port Director West, who had denied the 28 first appeal of the September 10, 2016 denial letter. (Doc. 30-1 at 3.) The June 20, 2018 Customs’s Second Denial Letter and Second Motion to Dismiss -7- 1 letter purports to relate back to Rodriguez’s 2016 clearance application and to incorporate 2 all of Rodriguez’s “subsequent submissions”—apparently meaning his submissions in 3 court. (Id. at 2.) It asserts, “On or about September 9, 2011, you were arrested . . . as the 4 driver of a vehicle carrying an illegal alien. You were arrested for the transportation of 5 an illegal alien in violation of 8 U.S.C. § 1324(a)(1)(A)(ii).” (Id.) West ultimately 6 concludes, without explanation, “Upon review, I have determined that you violated 8 7 U.S.C. § 1324(a)(1)(A)(ii).” (Id.) Customs apparently took the Court’s words as a 8 blueprint for evasion. Indeed, the letter also asserts that the “investigation into the events 9 surrounding [Rodriguez’s] September 9, 2011 offense established probable cause to 10 believe [he] engaged in the conduct relating to or that could lead to conviction for having 11 violated 8 U.S.C. § 1324(a)(1)(A)(ii).” (Id.) The letter further remarks that “it is the 12 judgment of the Port Director” that granting Rodriguez a clearance would “endanger the 13 revenue or the security of the area or pose an unacceptable risk to public health, interest 14 or safety, national security, or aviation safety.” (Id. (quoting 19 C.F.R. § 122.183(a).) 15 The Government again moved to dismiss this action, arguing the second letter 16 complied with Customs’s regulations and therefore mooted the case. (Doc. 30 at 2-3.) 17 The Court extended the time for Rodriguez to respond to the motion until he was able to 18 exhaust his appeals of the new letter. (Doc. 31 at 2.) On June 28, 2018, Rodriguez 19 timely appealed the second denial. (Doc. 32-1 at 3.) 20 D. 21 But Customs again moved the goalpost. On June 28, 2018, West sent a third 22 denial letter. (Doc. 32-2 at 1-2.) The June 28, 2018 letter bolsters the June 20, 2018 23 letter without acknowledging the earlier letter’s existence. In addition to the items in the 24 second letter, the third letter asserts for the first time that Sanchez was deported. (Id. at 25 1.) It also states that Customs has come to learn that Rodriguez is no longer employed by 26 American Airlines. (Id.) Applications for a security clearance “must be supported by a 27 written request and justification for issuance prepared by the applicant’s employer that Customs’s Third Denial Letter 28 -8- 1 describes the duties that the applicant will perform while in the Customs security area.” 2 (Id. (quoting 19 C.F.R. § 122.182(c)(1).) 3 This Court then entered an order to show cause, superseding the earlier scheduling 4 order. The Court noted that the third letter (and necessarily the second letter also) may 5 have been procedurally improper. (Doc. 34 at 2.) 19 C.F.R. § 122.183(c) states that 6 denials are “final” unless the applicant appeals. Nothing in the regulations suggests that 7 the finality is not binding on Customs. (Doc. 34 at 2.) Further, the rule implicitly 8 depriving a lower tribunal of jurisdiction to modify a matter on appeal is necessary to 9 prevent lower tribunals from disrupting appellate review by changing and bolstering their 10 rulings. Otherwise, a lower agency could force an ongoing dialectic on the reviewing 11 tribunal to meet the agency’s shifting positions. (Id. at 3.) The Court also noted the 12 absurdity of lack of employment as a basis for denial of a security clearance, as that lack 13 of employment was caused by Customs’s denial of the application. (Id.) Finally, neither 14 the second nor the third letter explained how Rodriguez had violated 8 U.S.C. 15 § 1324(a)(1)(A)(ii) or did anything more than parrot the language of the regulations, 16 disconnected from any particular facts related to Rodriguez. (Id.) 17 Given the substantial delays in the case and in the interest of economy, the Court 18 vacated its earlier scheduling order. (Id. at 3-4.) Because the case presents a pure 19 question of law, the Court ordered the Government to show cause why judgment on the 20 pleadings should not be entered in Rodriguez’s favor. (Id. at 4.) 21 II. ANALYSIS 24 Rodriguez is entitled to judgment on the pleadings against the September 10, 2016 denial because he did not receive a written notice fully stating the reasons for denial or detailed reasons for the denial of his security clearance. 25 The Government concedes that judgment on the pleadings is appropriate “should 26 the Court determine that the agency did not follow its own regulation.” (Doc. 35 at 8.) 27 The Court so determines, and judgment will be entered in Rodriguez’s favor. 22 23 A. 28 -9- 1 19 C.F.R. § 122.183(b) requires a written notice “fully stating the reasons for 2 denial” and that “detailed reasons for the denial [be] furnished to the applicant.” 3 “Detailed” means “[r]elated, stated, or described circumstantially; abounding in details; 4 minute, particular, circumstantial.” The Compact Oxford English Dictionary 421 (2d ed. 5 1991). 6 Customs’s September 10, 2016 letter violated Accardi because it was neither full 7 nor detailed in any sense. The letter is not “abounding in details” or “minute, particular, 8 circumstantial.” It does not even say what law Rodriguez violated. In fact, it implies 9 something wholly contrary to law: that it is a strict-liability crime to be the driver of a 10 vehicle carrying an undocumented alien. As discussed above, such a contention would 11 be wrong as a matter of clearly established law. Moreno, 561 F.2d at 1323. 12 The letter does not allow for meaningful response. Cheney, 479 F.3d at 1352. To 13 allow for meaningful response, the agency must supply some basis for its decision—a 14 basis for actual dialogue with the applicant. Here, Rodriguez was forced to guess what 15 law he violated and why Customs believed he violated it. Such a letter does not allow for 16 a meaningful response from Rodriguez or an actual dialogue with the agency’s reviewing 17 officials. 18 19 20 21 22 23 24 25 26 27 28 Rodriguez is entitled to the remedy described below. As will now be discussed, the illegal and insufficient subsequent denial letters do not change this conclusion. B. The June 20, 2018 and June 28, 2018 denial letters were procedurally improper. After receiving this Court’s adverse ruling on the motion to dismiss, Customs undertook on its own to send Rodriguez a second and a third denial letter. The Government claims the letters moot the case. But the letters were illegal attempts to redetermine a matter no longer within the jurisdiction of the agency. 19 C.F.R. § 122.183(c) states Customs’s “denial will be final unless the applicant files with the port director a written notice of appeal within 10 days following receipt of the notice of denial” (emphasis added). If the applicant does appeal, the decision on - 10 - 1 appeal is final. 19 C.F.R. § 122.183(d). Nothing in the regulations suggests that the 2 finality is not binding on Customs. (Doc. 34 at 2.) 3 Rodriguez’s 2016 application for a security clearance was denied. He exhausted 4 his administrative appeals, and then he filed this action for judicial review. Customs’s 5 denial of Rodriguez’s application was final upon the exhaustion of his administrative 6 appeals. The regulations do not allow Customs to issue a new finding or determination 7 reaffirming the same denial in a closed matter. 8 The second and third letters are improper even apart from the clear language of 19 9 C.F.R. § 122.183(c). As the Supreme Court has observed, “The filing of a notice of 10 appeal is an event of jurisdictional significance—it confers jurisdiction on the court of 11 appeals and divests the district court of its control over those aspects of the case involved 12 in the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). More 13 broadly stated, when an appeal is taken of a lower body’s decision, the lower body is not 14 able to modify or add to its original decision. This rule implicitly depriving a lower 15 tribunal of jurisdiction to modify a matter on appeal is necessary to prevent lower 16 tribunals from disrupting appellate review by changing their rulings. Otherwise, a lower 17 agency could force an ongoing dialectic on the reviewing tribunal to meet the agency’s 18 shifting positions. (Doc. 34 at 3.) That principle has analogous force in this situation of 19 judicial review of agency action. But the literally dispositive point here is that the 20 regulation does not allow for iterative denials of agency action already denied and final 21 by the express terms of the regulation. 22 The Government argues that “although district courts are stripped of jurisdiction to 23 render new determinations when a matter has been appealed to the Court of Appeals, 24 agencies are not implicitly barred from taking steps to resolve an administrative 25 complaint during the pendency of litigation.” (Id. at 2.) But Customs did not “resolve an 26 administrative complaint during the pendency of litigation.” It denied the administrative 27 complaint, again and yet again, attempting to thrust new reasons and facts into a closed 28 administrative record to win a pending judicial review. Both Customs’s regulation and - 11 - 1 common standards of appellate review barred it from rendering new adverse 2 determinations on a final decision now pending on review in this Court. Indeed, the 3 Government claims there is no limit to its ability to keep reaffirming its agency action for 4 new reasons and facts, forcing those new reasons and facts into the consideration of this 5 and other reviewing courts. At the August 22, 2018 oral argument, the Government 6 contended Customs could keep doing so even in the Court of Appeals. 7 The Government cites cases purporting to show that “agencies often act on a 8 Plaintiff’s administrative claim even after a suit has been filed in federal court.” (Id.) 9 The cases fall into two categories: (1) the agency later released the documents requested 10 under FOIA or (2) the agency provided a hearing it had previously denied. (Id. at 3 11 (collecting cases).) The common thread is that the agencies changed their positions to 12 grant the plaintiff the relief originally denied.1 Here, Customs has not changed its 13 position. All it has done is put forth more illegal, self-serving denial letters—letters that 14 could not be considered as new grounds to affirm its first denial of relief, even if the new 15 decisions supplied valid grounds for the original denial. 16 sometimes cave in later, but it cannot double down on an illegal denial of relief. In short, an agency can 17 Both the second and third denial letters purport to be on restated final agency 18 denial of review, not on initial denial that could be a basis for response by Rodriguez and 19 dialogue. For that reason too, even if the reasons later stated were sufficient on their 20 face, the later letters preclude the very response and dialogue the statement of detailed 21 reasons is meant to enable. That too invalidates the second and third denial letters. 22 23 24 25 26 27 28 1 The Government again cites a case that refutes its own argument. In Papa v. United States, 281 F.3d 1004, 1013 (9th Cir. 2002), the Court of Appeals explained that an agency that refused FOIA documents could relent during judicial review and produce the withheld documents. That case did not hold an agency could issue a new refusal of production during judicial review and crowbar the new reasons and facts into the pending judicial review. And even in that case of acquiescence during pending litigation, the case for judicial review was not mooted because it remained debatable whether all the documents sought had been produced. Id. - 12 - 1 2 3 4 5 C. The second and third denial letters violate Customs’s regulations by failing to provide full and detailed reasons for denying Rodriguez’s security clearance. Even if the second and third letters were not procedurally invalid, they still violate Accardi by not providing full and detailed reasons for denial of Rodriguez’s application. 6 The June 20, 2018 letter does not state full and detailed reasons for denial. 7 The Government contends in its second motion to dismiss that Customs’s second 8 denial letter (sent June 20, 2018) has mooted the case by providing “more specific 9 explanation of the reasons for the denial” of the security clearance. (Doc. 30 at 3.) 10 1. Although the second letter has more words, it is not full, specific, or detailed. 11 The second letter states three supposed bases for denial: (1) in the Port Director’s 12 judgment, granting Rodriguez a clearance will “endanger the revenue or the security of 13 the area or pose an unacceptable risk to public health, interest or safety, national security, 14 or aviation safety”; (2) “there is evidence of a pending or past investigation establishing 15 probable cause to believe that [Rodriguez] engaged in any conduct that relates to, or 16 which could lead to a conviction for, a disqualifying offense,” and “[u]pon review, 17 [West] determined that the investigation into” the events in California established 18 probable cause; and (3) Rodriguez “committed a disqualifying offense” by violating 8 19 U.S.C. § 1324(a)(1)(A)(ii) and “[u]pon review, [West] determined that” Rodriguez 20 violated that statute. (Doc. 30-1 at 2.) 21 None of these reasons is detailed. They mirror the language of the regulation; they 22 are not “abounding in details” or “minute, particular, circumstantial.” 23 conclusory. The broad assertion that Rodriguez poses a threat to national security is 24 unsupported and non-specific. In addition, West states that upon his review—he does not 25 say what the review entailed—Rodriguez may have violated or did violate 26 § 1324(a)(1)(A)(ii). West provides no way for Rodriguez to understand why he believes 27 Rodriguez had the mens rea necessary to violate the statute—a requirement that is strictly 28 - 13 - They are 1 construed. Moreno, 561 F.2d at 1323. And probable cause requires reason to believe 2 every element of a crime is satisfied, which West does not claim. 3 Customs’s lack of candor is especially pronounced in this case. The Court 4 explained in a previous order that it was unclear how Rodriguez could have violated 5 § 1324(a)(1)(A)(ii). Customs was therefore on notice that a bare conclusion not suffice 6 as full and detailed reasons. 7 Moreover, West swears in a declaration that the “process of receiving, 8 documenting, vetting, setting appointments for interview or prints, approving and 9 denying applications is done with attention to detail, is very well documented, and is 10 done with a humane approach.” (Doc. 24-2 at 2.) This claim of thoroughness sheds no 11 light on the completely opaque “reason” actually given in this case. 12 A denial letter needs to be detailed in a way that allows Rodriguez to meaningfully 13 respond. Cheney, 479 F.3d at 1352. The Government acknowledges Cheney applies but 14 contends Customs is not required to “spell out all the specific inferences it drew to make 15 its final determination.” (Doc. 36 at 5 (quoting Oryszak v. Sullivan, 565 F. Supp. 2d 14, 16 22 (D.D.C. 2008).) It argues “neither the regulations nor case law requires the agency to 17 more explicitly detail or prove up the criminal case for which [Rodriguez] was arrested, 18 or to prove up probable cause.” (Id.) But Customs’s violation of its own rules is not for 19 failure to “spell out all the specific inferences it drew.” Its violation was in its failure to 20 spell out any inference to meet essential elements of the crime. The violation further lay 21 in the failure to give full and complete reasons. 22 In Oryszak, the court remarked, “With no judicially manageable standards for 23 review, this Court cannot judge how and when an agency should exercise its discretion, 24 much less determine whether that discretion has been abused.” 565 F. Supp. 2d at 20. 25 There is an easily manageable standard in this case: Customs’s own regulation, 19 C.F.R. 26 § 122.183(b). 27 circumstances, Customs’s second letter was neither full nor “detailed.” It therefore does 28 not comply with § 122.183(b). By failing to provide any reason related to Rodriguez’s actual - 14 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. The June 28, 2018 letter does not state full and detailed reasons for denial and was also in bad faith. The Government contends it was lawful for Customs to provide a third denial letter because the agency had learned of new material information—namely, that Rodriguez was no longer employed by American Airlines. (Doc. 36 at 2.) 19 C.F.R. § 122.182(c)(1) requires applications for security clearances “be supported by a written request and justification for issuance prepared by the applicant’s employer,” as Rodriguez’s application was when presented and when denied. Customs maintains in its third letter that it has come to learn that Rodriguez no longer has an employer to supply this required written request. (Doc. 32-2 at 1.) The Government asserts that it is not clear from the record what caused Rodriguez’s termination. (Doc. 36 at 5-8.) This contention is in utter bad faith on the part of Customs and the Government, in two separate dimensions. Customs knows full well that the denied security clearance was necessary to Rodriguez’s job. That is why the airline supported Rodriguez’s application—so he could continue his job of eight years once Customs decided to require its own clearance for workers to access international flight areas. To say two years later that Customs has only lately come to learn Rodriguez no longer has the job with American Airlines is unworthy of belief, and to say it in court falls far short of permissible advocacy. The additional dimension of bad faith is that Customs’s unlawful denial of Rodriguez’s clearance is exactly what caused Rodriguez to lose his job, as the Government knew and intended. One hesitates to use strong language, but it is breathtaking for the Government to rely on its own illegal action to deprive a citizen of his right to overturn the illegal action precisely because it harmed him. The review in this Court turns on the matter as it was in the agency when the error was committed. Rodriguez had employment with the airline at that time. The absurdity of the Government’s contention is that it would always prevent judicial correction of illegal denial of a security clearance that is necessary to keep a job. - 15 - 1 2 3 In sum, the second and third denial letters supply no basis for meaningful dialogue with the agency. They violate the agency’s regulations. D. 4 Rodriquez is entitled to invalidation of the unlawful denial of security clearance and fresh action on remand in full compliance with Customs’s legal duties. 5 Having suffered from illegal agency action, Rodriguez is entitled to fresh exercise 6 of such discretion as the agency has. It is not enough for Customs to say that substantive 7 error or abuse of discretion would be immune from judicial correction, so we will 8 preemptively indulge in any error or abuse of discretion we like. Very little of what the 9 Government does is subject to correction by the courts. But every federal official is 10 sworn to uphold the Constitution and the laws of the United States. Even if the courts 11 cannot later intervene, it is the oath of every official—every single one—to diligently 12 follow the law and apply it in fairness and good faith to the best of his ability to every 13 person affected by the official’s acts. If, as appears certain here, there is no basis or even 14 probable cause to think Rodriguez committed an immigration offense, Customs must 15 examine that and fully state the “detailed reasons” for concluding he did, showing that 16 Customs is not acting in defiance of law and facts. Everyone is entitled to open-minded, 17 thorough fact-finding and real exercise of discretion where discretion is granted, even 18 those who have previously shown the Government’s action was illegal. 19 E. 20 It is an open question whether the security decision in this case is committed to agency discretion by law. 21 The Court does not decide the important question of whether the security decision 22 in this case is “committed to agency discretion by law” within the exception of the 23 Administrate Procedure Act from substantive judicial review. The question is substantial 24 in light of the Government’s inability to point to any statute or specific case so holding. 25 (See Doc. 35.) The question could arise in further proceedings, but it is not necessary to 26 decide it now. 27 28 - 16 - 1 F. 2 After Customs’s lawless attempts to deny again the closed clearance application, 3 Rodriguez filed a motion for contempt, arguing those actions were in bad faith. (Doc. 4 32.) The Court treats the motion more narrowly as a motion for award of attorney fees 5 under the Equal Access to Justice Act. The showing of Government bad faith in the later 6 attempts to bootstrap new grounds into the original denial of clearance is substantial. 7 However, the additional attorney fees occasioned by that bad faith are modest. In the 8 Court’s discretion, that motion will be denied. The Court will be alert to any future bad 9 faith. 10 11 Attorney fees under the Equal Access to Justice Act will be denied. IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (Doc. 30) is denied. 12 IT IS FURTHER ORDERED that the Clerk of the Court enter judgment in favor of 13 Plaintiff Alberto Rodriguez against Defendants in their official capacity that the September 14 10, 2016 denial of Plaintiff’s security clearance (Doc. 1-2 at 1-2), Acting Port Director 15 Jason West’s October 7, 2016 order denying Plaintiff’s appeal (Doc. 1-4 at 1), and Director 16 of Field Operations William K. Brooks’s November 8, 2016 order denying Plaintiff’s 17 further appeal (Doc. 1-6 at 1) are reversed as invalid and his application is remanded for 18 further action consistent with this Order. 19 IT IS FURTHER ORDERED that Plaintiff’s Motion for an Order to Show Cause 20 Why Defendants Should Not Be Held in Civil Contempt (Doc. 32), treated as a motion for 21 award of attorney fees under the Equal Access to Justice Act, is denied. 22 23 24 IT IS FURTHER ORDERED that this Court retains jurisdiction to decide any further judicial review proceedings that may be brought from proceedings on remand. Dated this 24th day of August, 2018. 25 26 27 28 - 17 -
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