Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Homeland Sec.
This text of 387 F. Supp. 3d 33 (Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Homeland Sec.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
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 *37separating 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"),
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.
*38II. 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 ,
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."
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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 *37separating 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"),
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.
*38II. 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 ,
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."
B. The January 2017 and July 2018 NARA Inspection Reports
On January 11, 2017, following an inspection conducted pursuant to
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."
C. The Zero Tolerance Policy and Subsequent Ms. L. Litigation
On April 6, 2018, then-Attorney General Jeff Sessions began implementation of the *40"zero tolerance policy," directing federal prosecutors along the United States' southwest border "to work with DHS 'to adopt immediately a zero-tolerance policy' requiring that all improper entry offenses be referred for criminal prosecution 'to the extent practicable.' " Dep't of Homeland Sec. Office of the Inspector Gen., Special Review - Initial Observations Regarding Family Separation Issues Under the Zero Tolerance Policy ("DHS OIG Report") 2 (2018), Pls.' Mot. Prelim. Inj. Ex. 3, ECF No. 14-5.
When combined with the Trump administration's decision to end the prior practice of releasing certain types of undocumented immigrants pending resolution of their immigration or criminal cases, see
In the two or so months the policy was in place, the government separated thousands of children from their parents. Am. Compl. ¶ 31. "Faced with resource limitations and other challenges," DHS's implementation of the zero tolerance policy was, by all accounts, a disaster. DHS OIG Report 1; see Am. Compl. ¶ 26. CBP "held alien children separated from their parents for extended periods in facilities intended solely for short-term detention," DHS OIG Report 1, generating widespread media attention. DHS "struggled to identify, track, and reunify families."
At the same time as the Trump administration was implementing the zero tolerance policy, it was fighting in court a lawsuit by a class of parents detained-or at risk of being detained-by DHS in immigration custody and separated from their children. See generally Docket, Ms. L. v. U.S. Immigration & Customs Enforcement , No. 18-cv-428 (S.D. Cal.). On June 26, 2018, the court in that case issued a preliminary injunction requiring DHS to stop detaining parents and children separately (outside of limited circumstances), to immediately begin facilitating regular communication between detained classmembers and their separated children, and to reunite the detained classmembers with their children within 30 days. Ms. L. v. U.S. Immigration & Customs Enforcement ,
D. Government Review of Zero Tolerance's Implementation
After the significant public attention generated by the zero tolerance policy and the Ms. L. litigation, two government reports discussing DHS's family separation procedures were issued. First, the DHS OIG issued a report entitled "Special Review - Initial Observations Regarding Family Separation Issues Under the Zero Tolerance Policy" on September 27, 2018. See generally DHS OIG Report. The report "reveal[ed] numerous records management failings by DHS" in its implementation of the zero tolerance policy. Am. Compl. ¶ 36. Among others, DHS "lack[ed] complete and adequate records documenting basic details concerning migrant family separations and reunifications."
The OIG also found that neither CBP nor Immigration and Customs Enforcement ("ICE")-a DHS component that processes alien removals-had "an adequate, uniform system for creating or retrieving records" of, respectively, "unaccompanied minors at the border" or "detainees in [ICE] custody who have been separated from a child."
In October 2018, the Government Accountability Office ("GAO") issued its own report on the government's efforts to reunify separated families in the wake of the Ms. L. litigation. See Government Accountability Office, Unaccompanied Children: Agency Efforts to Reunify Children Separated from Parents at the Border ("GAO Report") (2018), Pls.' Mot. Prelim. Inj. Ex. 2, ECF No. 14-4. The GAO Report also identified "several records management deficiencies concerning DHS's implementation of the Zero Tolerance Policy." Am. Compl. ¶ 37. Among others, although DHS and HHS adjusted their systems by August 2018 " 'to help notate ... when children are separated from parents,' these changes were ineffective" because information added on CBP systems was not necessarily shared with HHS upon the transfer of separated children.
E. Procedural Background
CREW filed suit on October 26, 2018. Compl., ECF No. 1. On December 14, 2018, CREW and RAICES filed an amended complaint against DHS and then-Secretary of Homeland Security Kirstjen Nielsen. See Am. Compl. Plaintiffs bring three APA claims for DHS's alleged failures to comply with the FRA, alleging that DHS's overall records management program is deficient; that, even after the Ms. L. litigation, DHS still fails to create records sufficient to link separated children with adults they were apprehended with at the border; and that DHS failed to document its policies and decisions during the agency's implementation and rollback of zero tolerance. See id. ¶¶ 62-87.
On March 8, 2019, Plaintiffs filed a motion for a preliminary injunction on their second claim. Pls.' Mot. Prelim. Inj., ECF No. 14. Defendants filed their opposition and motion to dismiss the entire amended complaint on March 20, 2019. Defs.' Mot. Dismiss, ECF No. 19. Plaintiffs filed their reply and opposition to the motion to dismiss on March 29, 2019, Pls.' Mem. Opp'n Mot. Dismiss, ECF No. 21, and Defendants filed their reply on April 5, 2019, Defs.' Reply, ECF No. 22. The Court heard oral argument on Plaintiffs' motion for preliminary injunction on April 11, 2019. Both the motion to dismiss and the motion for preliminary injunction are ripe for review.
III. LEGAL STANDARD
A. Motion for a Preliminary Injunction
Under the familiar preliminary injunction framework, "[a] party seeking a preliminary injunction must make a 'clear showing that four factors, taken together warrant relief: likely success on the merits, likely irreparable harm in the absence of preliminary relief, a balance of the equities in its favor, and accord with the public interest.' " League of Women Voters v. Newby ,
*43Elec. Privacy Info. Ctr. v. FTC ,
B. Motion to Dismiss for Lack of Subject Matter Jurisdiction
Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of an action for lack of subject matter jurisdiction. Federal courts are courts of limited jurisdiction, and it is generally presumed that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am. ,
It is the plaintiff's burden to establish that the court has subject matter jurisdiction over his or her claims. Lujan v. Defs. of Wildlife ,
C. Motion to Dismiss for Failure to State a Claim
To prevail on a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a plaintiff need only provide a "short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), that "give[s] the defendant fair notice of what the ... claim is and the grounds upon which it rests," Erickson v. Pardus ,
Nevertheless, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal ,
IV. ANALYSIS
As discussed above, Plaintiffs bring three separate claims for FRA violations. Plaintiffs first allege that DHS failed to establish and maintain an FRA-compliant records management program. Am. Compl. ¶¶ 62-70. Plaintiffs' second claim is that DHS is violating the FRA by failing to create records sufficient to link separated children from adults with whom they were apprehended. Id. ¶¶ 71-80. And finally, Plaintiffs claim that DHS failed to create records of agency policy and decisions in connection with the implementation and rollback of the zero tolerance policy. Id. ¶¶ 81-87. Plaintiffs have moved for a preliminary injunction on their second claim, while Defendants have moved to dismiss all three claims for lack of standing and failure to state a claim under the APA.
Because Plaintiffs can only establish a likelihood of success on the merits of their second claim if that claim survives the motion to dismiss, and their entitlement to a preliminary injunction hinges on defeating that motion, the Court addresses it first. The Court first reviews whether Plaintiffs have standing to bring their claims. It concludes that, at the very least, RAICES has standing as to claims one and two, but that neither RAICES nor CREW has standing as to claim three. Next, the Court reviews the motion to dismiss the complaint for failure to state a claim. Because it finds that Plaintiffs do not challenge a final agency action on any of their claims-a prerequisite for an APA claim-the Court concludes that Plaintiffs have failed to state a claim under the APA. The Court accordingly denies Plaintiffs' motion for a preliminary injunction and grants Defendants' motion to dismiss the amended complaint in its entirety.
A. Plaintiffs Only Have Standing to Bring Claims One and Two
The Court first reviews whether it has subject matter jurisdiction to review Plaintiffs' claims. In their motion to dismiss, Defendants argue that Plaintiffs lack standing on all three claims. See Defs.' Mem. Supp. Mot. Dismiss 30-35, 39-42, ECF No. 19-1. The Court agrees in part and disagrees in part. It finds that, at the very least, RAICES has standing as to claims one and two. However, it also finds that Plaintiffs lack standing as to claim three.
"To establish standing, the plaintiff must show (1) it has suffered a 'concrete and particularized' injury (2) that is 'fairly traceable to the challenged action of the defendant' and (3) that is 'likely' to be 'redressed by a favorable decision,' i.e., a decision granting the plaintiff the relief it seeks." Elec. Privacy Info. Ctr. v. Presidential Advisory Comm'n on Election Integrity ,
Here, Defendants argue that Plaintiffs have not established that they have suffered the required injury on any of their claims, as well as that RAICES has not *45established causation or redressability as to claim two. See Defs.' Mem. Supp. 30-35, 39-42. Focusing on RAICES's standing, the Court first reviews claim two, then claim one, and finally claim three.
1. Claim Two
Defendants argue that RAICES has not established standing as to claim two for two reasons. First, they contend that DHS's alleged failure to create sufficient records in connection with separations at the border has not caused RAICES to suffer an organizational injury. Defs.' Mem. Supp. 30-32. And second, they argue that RAICES has not adequately shown how injunctive relief would remedy an injury that can be traced to DHS's recordkeeping failures, rather than to the zero tolerance policy more generally. See
First, the Court finds that RAICES has sufficiently established that it suffered an organizational injury with respect to claim two. To establish that it suffered a harm that satisfies the injury prong of standing, RAICES must satisfy a two part test. First, it must show that "the actions taken by [the defendant] have perceptibly impaired the [organization's] programs." Newby ,
With respect to the perceptible impairment element, the complaint points to a number of instances where DHS's alleged recordkeeping failures have harmed RAICES's ability "to provide effective, free and low-cost legal services to underserved immigrant children, families, and refugees in Texas," Am. Compl. ¶ 53. See id. ¶¶ 53-61. Plaintiffs represent that DHS's inability to link unaccompanied children to family members from whom they were separated results in increased detention times for unaccompanied children, which impairs RAICES's ability to provide advice to and consult with its clients, as well as renders removal proceedings more difficult for the organization to handle. Id. ¶¶ 57-58. The lack of records also "impair[s] RAICES's ability to prepare applications for relief or obtain evidence for [unaccompanied children] in removal proceedings," because "[m]igrant children apprehended at the border often lack information" relevant to their immigration proceedings, information that is "[t]ypically ... maintained by the adult companion." Id. ¶ 60. As a result, RAICES has been forced to "divert substantial resources to counteract that harm," id. ¶ 56, including by increasing its staff size, creating tools to match and track separated children and family members, and scaling up its litigation efforts relating to separations, id. ¶ 61. And RAICES's declarations filed in support of the motion for a preliminary injunction provide further detail about the harm the organization has suffered as a result of DHS's alleged recordkeeping failures. See generally Decl. of Bianca Aguilera, ECF No. 14-18; Decl. of Jonathan Ryan, ECF No. 14-19; Decl. of Kathrine Russell, ECF No. 14-20.
In the motion to dismiss, Defendants argue that this alleged harm is insufficient because while "certain additional information might have been helpful, [RAICES] is undeniably able to continue providing legal services to alien children." Defs.' Mem. Supp. 31. But as Plaintiffs point out, all RAICES needs to show to satisfy the first prong is that it suffered harm that "unquestionably *46make[s] it more difficult ... to accomplish [its] primary mission." Pls.' Mem. Supp. Prelim. Inj. 29, ECF No. 14-1 (quoting Newby ,
Defendants also argue that any impairment caused by its alleged recordkeeping deficiencies does not directly conflict with RAICES's mission, again because RAICES continues to provide legal services in spite of the alleged harm. Defs.' Mem. Supp. 31. In their reply, Defendants further suggest that organizational injury can only be established "when an organization has a mission focused on a particular policy goal ... and challenges an action that directly conflicts with that mission." Defs.' Reply 18. Defendants do not offer any legal authority to support this assertion that organizational injury is restricted to organizations that have a narrow policy goal.3 In any event, RAICES alleges that its primary goal is to provide legal representation to immigrants, see Am. Compl. ¶ 53, and that DHS's failure to create records sufficient to "[p]rotect the ... legal ... rights of ... persons directly affected by the Government's actions,"
Second, Defendants briefly argue that RAICES cannot establish causation or redressability because it has not explained "how an injunction requiring DHS to create certain records would in turn allow RAICES to access those records and obtain personal identifying information about ... non-parent adults, nor that this identifying information would actually yield information crucial to a child's representation." Defs.' Mem. Supp. 31 n.14. The Court finds this argument unpersuasive. As Plaintiffs point out in their opposition, they need only show that there is "a causal connection between the injury and [DHS's] conduct," and that it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Pls.' Mem. Opp'n 34 (quoting Am. Soc'y for Prevention of Cruelty to Animals v. Ringling Bros. ,
2. Claim One
As to claim one, Defendants argue that Plaintiffs have made "no factual assertions ... regarding concrete, particularized harms" caused by the alleged overall failure of DHS's records management program, "aside from Plaintiffs' asserted injuries in regard to recordkeeping with respect to family separations." Defs.' Mem. Supp. 39. The Court disagrees that these asserted injuries are insufficient to establish standing as to claim one. The Complaint identifies multiple deficiencies existing in DHS's records management program prior to the implementation of the zero tolerance policy, and alleges that the harms caused by improper documentation as part of the implementation of the policy were linked to the records management program's overall deficiencies. Am. Compl. ¶¶ 64-65; see also id. ¶ 23 (noting DHSs "history of failing to comply with ... statutory records management obligations" and pointing to the NARA DHS Inspection Report); id. ¶ 26 ("DHS's culture of non-compliance with its FRA obligations manifested acutely, with disastrous results, in its implementation and rollback of the Zero Tolerance Policy."); id. ¶¶ 36-40 (noting continued, systemic failure to record documents in multiple DHS component agencies even after the end of zero tolerance). The Court sees no reason why the concrete injury RAICES alleges it suffered because of DHS's improper recordkeeping in connection with family separations, which the Court found sufficient to establish standing as to claim two, is not also sufficient to establish standing as to claim one. It accordingly finds that RAICES has standing to bring claim one.
3. Claim Three
Finally, the Court reviews Defendants' arguments as to claim three, the claim challenging DHS's creation of records of agency policy and decisions during the implementation and rollback of zero tolerance. Defendants argue that Plaintiffs do not have standing to seek injunctive and declaratory relief when their claim centers around injuries allegedly caused in the past, with no allegations of ongoing or future injury. See Defs.' Mem. Supp. 40-41. Plaintiffs retort that claim three is not just directed at recordkeeping failures during the implementation of the zero tolerance policy, but rather at an overall DHS practice of failing to document agency policy and decisions. See Pls.' Mem. Opp'n 45. Here, the Court must part with Plaintiffs. On the basis of the allegations in the Complaint, it agrees with Defendants that Plaintiffs do not point to an ongoing injury and therefore lack standing to bring their third claim.
As a general rule, "where the plaintiffs seek declaratory and injunctive relief, past injuries alone are insufficient to establish standing." Dearth v. Holder ,
B. All of Plaintiffs' Claims Fail to State a Claim Under the APA
The Court next reviews Defendants' motion to dismiss the entire complaint for failure to state a claim. Defendants argue that none of Plaintiffs' claims challenge an agency action, and therefore that they do not state a claim under the APA. The Court agrees. Reviewing claims two, one, and three (assuming, arguendo , that Plaintiffs had standing) in turn, it finds that none of the claims challenge a reviewable agency action.
In claim two, Plaintiffs allege that HS "has repeatedly failed, and continues to fail, to create records sufficient to link migrant children with adult companions with whom they were apprehended at the border." Id. ¶ 74. Plaintiffs contend that DHS has therefore unlawfully withheld agency action pursuant to
a. Reviewable "Agency Action" Under the APA
First, the Court briefly reviews the framework for what constitutes a reviewable agency action under the APA. The statute itself defines "agency action" as an "agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act."
*49Norton v. S. Utah Wilderness Alliance ("SUWA "),
As a result, when challenging the failure to take an agency action under
In reviewing a § 706(1) claim in SUWA , the Supreme Court further clarified the discrete agency action requirement. The SUWA plaintiffs claimed that BLM's failure to prohibit the use of off-road vehicles ("ORVs") on protected federal lands violated its mandate to "continue to manage [the land] ... in a manner so as not to impair the suitability of such areas for preservation as wilderness." SUWA ,
The Supreme Court went on to note that the purpose of APA reviewability limitations was "to protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements."
b. DHS's Alleged Failure to Create Records Was Not a Discrete Agency Action
With these general principles in mind, the Court turns to Plaintiffs' claim in this case that DHS violated the FRA by failing to create records sufficient to link separated children to adults with whom they were apprehended. Defendants argue that the claim "does not present a proper APA claim," Defs.' Mem. Supp. 18, because it does not challenge an agency action amenable to APA review, id. at 19. Relying on Lujan, SUWA , and two recent district court decisions addressing FRA records creation claims, Citizens for Responsibility & Ethics in Washington v. Pruitt ("CREW I "),
As an initial matter, while the parties devote most of their arguments on the issue to whether the claim is of the type recognized as viable in CREW I , the Court is not bound by either CREW I or CREW II , which are decisions of a sister district court. Plaintiffs contend that CREW I 's "clear holding" dictates that their claim is available under the APA. Pls.' Mem. Supp. 7. The Court disagrees. The Court ultimately finds that Plaintiffs do not challenge a discrete agency action but rather are seeking to force compliance with a broad statutory mandate, a prospect which is outside the purview of the APA.
Plaintiffs allege that DHS undertook a reviewable agency action by failing to create records in violation of both § 3101 of the FRA and the FRA's implementing regulations. See Am. Compl. ¶¶ 74-76; see also Pls.' Mem. Supp. 22 ("Following the reasoning of both Armstrong and CREW v. Pruitt , ... Plaintiffs may pursue an APA claim here challenging DHS's failure to create records in violation of § 3101"); Pls.' Mem. Opp'n 12 (characterizing claim as a challenge to DHS's "[a]ggregate [p]ractice of [f]ailing to [c]reate [r]ecords" in violation of § 3101 and its implementing regulations). They contend that DHS's failure to create records linking separated children to adults with whom they were apprehended violates § 3101's mandate to make and preserve records generally. See Compl. ¶¶ 75-76. And they contend that it violates the regulations' requirement that DHS prescribe the creation and maintenance of records that 1) "[d]ocument the persons ... or matters dealt with by the agency," 2) "[f]acilitate action by agency officials and their successors in office," 3) "[m]ake possible a proper scrutiny by the Congress or other duly authorized agencies of the government," and finally 4) "[p]rotect the ... legal ... rights ... of persons directly affected by the Government's actions."
Unfortunately for Plaintiffs, neither the FRA statutory provision they rely on nor its implementing regulations provide anything *51more than a "broad statutory mandate" for DHS to follow. SUWA ,
But this is exactly what Plaintiffs attempt to do here. The FRA and its implementing regulations provide general commands to agencies to prescribe the creation of records that "[d]ocument the persons" they deal with, "[f]acilitate action" by government officials, "[m]ake possible a proper scrutiny" of agency activities, and "[p]rotect the ... legal ... rights" of persons affected by their actions.
Plaintiffs retort that their claim is authorized by CREW I and CREW II . As *52both parties recognize, the Supreme Court in Kissinger v. Reporters Committee for Freedom of the Press ,
In CREW I , the court dealt with a motion to dismiss a claim pursuant to the APA that the Environmental Protection Agency ("EPA") was violating § 3101 of the FRA. CREW I ,
In rejecting the defendants' argument, the court found that nothing in the FRA precluded judicial review of agency violations of § 3101, and that § 3101's mandate was not committed to agency discretion by law.
A few months later in CREW II , the court found that the case had been mooted by Pruitt's departure from the EPA.
Plaintiffs' arguments notwithstanding, the Court's conclusion here is consistent with both CREW I and CREW II . As Defendants point out, a logical reading of CREW I and CREW II taken together is that the court there recognized only a challenge to the EPA's unofficial policy of refusing to create records. Defs.' Mem. Supp. 18-19; see CREW I ,
Next, the Court addresses Plaintiffs' first claim, that DHS "has failed to establish and maintain a sufficient agency-wide records management program in compliance with the FRA and its implementing *54regulations." Am. Compl. ¶ 65. DHS argues that this claim is "far broader than a challenge to 'the adequacy of an agency's record-keeping guidelines' that the DC Circuit allowed in Armstrong ," and fails to identify a reviewable agency action. Defs.' Mem. Supp. 38 (quoting Competitive Enter. Inst. v. Office of Sci. & Tech. Policy ,
As discussed above for claim two, Plaintiffs can only challenge an agency action, as that term is understood under the APA. In the amended complaint, Plaintiffs challenge DHS's failure "to establish and maintain a sufficient agency-wide records management program in compliance with the FRA and its implementing regulations." Am. Compl. ¶ 65. Plaintiffs explain that "[t]hese failures are detailed in NARA reports ... and manifested in DHS's recent actions with respect to migrant children apprehended at the border."
In their opposition, Plaintiffs attempt to recharacterize their claim by suggesting that the amended complaint's reference to DHS's inadequate records management program was really a reference to DHS's inadequate recordkeeping guidelines and directives. See Pls.' Mem. Opp'n 43. As such, Plaintiffs contend, claim one is essentially the same type of claim challenging an agency's recordkeeping guidelines as the claim authorized in Armstrong. See
Finally, the Court reviews Plaintiffs' third claim, that DHS violated § 3101 and
Again, as discussed above in part IV.B.1.a., the APA only authorizes courts to review challenges to agency action, as defined in the APA. And because " 'failure to act' is ... properly understood as a failure to take an agency action ," SUWA ,
Here, as with claims one and two, Plaintiffs do not challenge a discrete agency action. Plaintiffs challenge DHS's failure to "create adequate records" complying with
Plaintiffs argue that their claim goes beyond the agency's implementation of the zero tolerance policy, and rather "alleges that DHS has an ongoing 'agency culture of resisting memorializing policy decisions and guidance into written records.' " Pls.' Mem. Opp'n 45 (quoting Am. Compl. ¶ 43). Given the allegations supporting the third claim, see Am. Compl. ¶¶ 81-87, the Court is inclined to agree with Defendants that Plaintiffs "attempt to amend their pleading through their brief," Defs.' Reply 22. As discussed above in part IV.A.3., the additional allegations Plaintiffs point to fall short of stating a claim that DHS has adopted a policy of refusing to document agency decisions. Plaintiffs point to a single paragraph in the amended complaint alleging that DHS's failures during its implementation of the zero tolerance policy was "consistent with [its] overall agency culture." Am. Compl. ¶ 43. That same paragraph identifies two instances where "CBP's policymakers rebuked prior efforts by its own policy office and the Office for Civil Rights and Civil Liberties to issue employees meaningful guidance" on two issues.
V. CONCLUSION
For the foregoing reasons, Plaintiffs' motion for a preliminary injunction (ECF No. 14) is DENIED . Defendants' motion to dismiss (ECF No. 19) is GRANTED . An order consistent with this Memorandum *56Opinion is separately and contemporaneously issued.
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