1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 COUNTY OF SAN DIEGO, Case No.: 3:19cv0631-L-AHG
12 Plaintiffs, ORDER GRANTING DEFENDANTS’ 13 v. MOTION TO DISMISS 14 KIRSTJEN NIELSEN, et al, 15 Defendant. 16 17 Pending before the Court is Defendants’ motion to dismiss pursuant to Federal 18 Rules of Civil Procedure 12(b)(1) and 12(b)(6). [ECF NO. 8.] Plaintiff filed an 19 opposition and Defendant replied. The matter is submitted on the briefs without oral 20 argument. See Civ. L. R. 7.1(d)(1). For the reasons stated below, Defendant’s motion is 21 GRANTED. 22 I. BACKGROUND 23 Plaintiff County of San Diego (“County” or “Plaintiff”) filed this action against 24 Kirstjen M. Nielsen, Secretary of the Department of Homeland Security; Ronald D. 25 Vitiello, Deputy Director and Senior Official Performing Duties as Immigration and 26 Customs Enforcement Director; Matthew T. Albence, United States Immigration and 27 Customs Enforcement Executive Associate Director; Kevin McAleenan, Commissioner 28 of Customs and Border Protection; and Carla L. Provost, Chief of Border Patrol, all in 1 their official capacities (collectively “Defendants”). Plaintiff asserts that Defendants 2 violated the Administrative Procedures Act (“APA”) and Fifth Amendment of the United 3 States Constitution when they discontinued the “Safe Release” program under which 4 Defendants provided asylum seekers with assistance in reaching their final destinations 5 within the United States pending adjudication of their asylum claims. (See Compl. [Doc. 6 1] ¶¶ 18-19.) The Safe Release program entails helping asylum seekers locate contact 7 information for relatives residing in the United States and outside the County of San 8 Diego, facilitating phone calls between asylum seekers and those relatives, and 9 transporting the asylum seekers and accompanying family members to departure points 10 for bus stations, train stations, and airports. (Id. at ¶¶ 18-22.) Asylum seekers and their 11 families would receive a minimal amount of food for their journeys. (Id.) Plaintiff claims 12 that the Defendants operated the Safe Release program from 2009 until its sudden 13 termination in October 2018 14 In October 2018, multiple news outlets reported the end of the Safe Release 15 program, with ICE commenting that the termination of the policy was due to limited 16 resources to support the program. (Id. at ¶ 28). Within 24 hours of the announced end of 17 the Safe Release program, Defendants dropped off 40 asylum seekers and accompanying 18 family members at a San Diego bus station with no assistance for traveling to their final 19 destinations. Plaintiff states that social service agencies Jewish Family Services (“JFS”) 20 and San Diego Rapid Response network (“SDRRN”), reported that an average of 20 to 21 30 family units, or 60 to 80 individuals including young children, have been released into 22 San Diego County each day since October 2018. (Id. at ¶ 29). Many of the asylum 23 seekers arrive in poor health suffering from the flu, upper respiratory infections, injuries, 24 scabies, and/or lice, in addition to emotional or psychiatric issues due to their 25 circumstances. (Id. at ¶¶ 30-31). 26 As a result of the discontinuation of the Safe Release program, Plaintiff claims it 27 has suffered and will continue to suffer immediate and apparent harms in combating the 28 humanitarian and public health issues created by the end of the Safe Release program, 1 including providing more personnel to shelter and care for the asylum seekers and their 2 families. Costs for the services now being provided by the County exceeded $1.1 million 3 as of March 22, 2019 and have continued to increase. (Id. at ¶¶ 33-37.) 4 Plaintiff alleges that by suddenly ending the Safe Release program without an 5 opportunity to comment, Defendants have violated the APA’s notice and comment 6 requirement, under 5 U.S.C. §§ 553, 706(2)(D), and committed an agency action that is 7 arbitrary and capricious in violation of the APA, under 5 U.S.C. § 706(2)(A). (Compl. ¶¶ 8 51-52). Plaintiff further alleges that Defendants have violated the procedural due process 9 rights of the County under the Fifth Amendment of the United States Constitution. (Id. at 10 ¶ ¶ 62-63). Plaintiff seeks preliminary and permanent injunctive relief and a declaration 11 by the Court that the Defendants actions are void and without legal force and effect. 12 Defendant filed motions to dismiss pursuant to Rule 12(b)(1) for lack of subject 13 matter jurisdiction, and pursuant to Rule 12(b)(6) for failure to state a claim. 14 II. DISCUSSION 15 Rule 12(b)(1) provides for dismissal if subject matter jurisdiction is lacking. 16 Unlike State courts, 17 Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is 18 not to be expanded by judicial decree. It is to be presumed that 19 a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting 20 jurisdiction. 21 22 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). 23 Federal courts must satisfy themselves of jurisdiction over the subject matter 24 before proceeding to the merits of the case. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 25 574, 583 (1999). Subject matter jurisdiction cannot be waived, and the court must 26 dismiss an action whenever it determines subject matter jurisdiction is lacking. Fed. R. 27 Civ. P. 12(h)(3); see also Hansen v. Dep’t of Treasury, 528 F.3d 597, 600 (9th Cir. 2007). 28 1 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the 2 complaint. See N. Star Int’l v. Ariz. Corp. Comm’n., 720 F.2d 578, 581 (9th Cir. 1983). 3 The Court may dismiss a complaint as a matter of law either for lack of a cognizable 4 legal theory or for insufficient facts under a cognizable theory. Robertson v. Dean Witter 5 Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). The Court must assume the truth of all 6 factual allegations in the complaint and “construe them in the light most favorable to [the 7 nonmoving party].” Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002). “While a 8 complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual 9 allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief 10 requires more than labels and conclusions, and a formulaic recitation of the elements of a 11 cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) 12 (internal citations and quotation marks omitted). Instead, the allegations “must be 13 enough to raise a right to relief above the speculative level.” Id. 14 “Unlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion can attack the substance 15 of a complaint's jurisdictional allegations despite their formal sufficiency, and in so doing 16 rely on affidavits or any other evidence properly before the court.” St. Clair v. City of 17 Chico, 880 F.2d 199, 201 (9th Cir. 1989). Plaintiffs Article III and prudential standing 18 claims are analyzed under 12(b)(1). The remaining issue are analyzed under the 12(b)(6) 19 standard. 20 A. Article III Standing 21 To meet Article III's standing requirements, a plaintiff must show (1) it has 22 suffered an “injury in fact”—an invasion of a legally protected interest that is (a) concrete 23 and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the 24 injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, not 25 merely speculative, that the injury will be redressed by a favorable decision. Maya v. 26 Centex, 658 F.3d 1060 (9th Cir. 2011)(citing Lujan v. Defenders of Wildlife, 504 U.S. 27 555, 561 (1992). The party asserting jurisdiction has the burden of establishing these 28 elements which must be supported with evidence as required at each successive stage of 1 litigation. Lujan, 504 U.S. at 561. “Though lack of statutory standing requires dismissal 2 for failure to state a claim, lack of Article III standing requires dismissal for lack of 3 subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).” Maya, 658 4 F.3d at 1067. 5 In Claim One, Plaintiff asserts a procedural claim arguing it was denied the ability 6 to speak out against the proposed policy changes due to Defendants failure to follow the 7 APA’s notice and comment requirements before terminating the Safe Release program. 8 (Opposition at 11.) In Claim Two, Plaintiff argues that the termination of the Safe 9 Release policy was arbitrary and capricious, an abuse of discretion, and not in accordance 10 with law under the APA because the termination deviated from federal regulations, 11 Defendants failed to consider the relevant factors, and failed to articulate a reasonable 12 explanation for their actions. (Compl. at ¶ 57). As a result of these violations, Plaintiff 13 claims it suffered a concrete injury because it has spent over $1.1 million by devoting 14 additional personnel and resources to combat the humanitarian and public health crisis 15 Defendants’ policy change has caused. (Id.) 16 In response, Defendants contend that Plaintiff has not suffered a judicially 17 cognizable injury because (1) the decision to discontinue its assistance to paroled asylum 18 seekers does not command the County to take or refrain from taking any action; (2) 19 Plaintiff, as a third party, cannot assert an injury in fact because it lacks a legally 20 cognizable interest in the enforcement of immigration policy against individual asylum 21 seekers; (3) allowing Plaintiff to bring suit against the federal government for the effects 22 of its immigration policies would violate the sovereign prerogative of the federal 23 government. (Mot. 12-13). 24 It is established that “[e]conomic injury is clearly a sufficient basis for standing.” 25 San Diego County Gun Rights Committee v. Reno, 98 F.3d 1121, 1130 (9th Cir. 1996); 26 Azar, 911 F.3d at 558 (A state may show Article III standing where the injury increases 27 use of state-funded services.) In order to address the needs of the influx of unassisted 28 paroled asylum seekers and their families, the County set up a migrant shelter to provide 1 food, shelter and medical screening assessments. (Compl. ¶ 32-34.) An average of 76 2 medical screenings are conducted a day and County employees refer asylum seekers for 3 additional medical care if necessary. (Id. at 34.) The County expanded an existing 4 contract with University of California, San Diego (“UCSD”) to screen and evaluate 5 asylum seekers for diseases of public health significance and transfer arrivals to the 6 shelter, isolation, or a higher level of care if appropriate. (Id. at 35). The County Sheriff’s 7 Department provides daily report coordination and the County Department of General 8 Services provides maintenance and support for equipment to allow the County Health and 9 Human Services Agency (“HHSA”) staff to work on site. (Id. at 36). These services cost 10 over $1.1 million as of March 22, 2019. (Id. at 37). 11 The void in services created by the termination of the Safe Release policy led to a 12 humanitarian and health crisis that required immediate response from the County to 13 protect its citizens. As such, the economic impact Plaintiff has suffered is causally 14 connected to the sudden halt of the policy. 15 Defendants contend that nothing in the discontinuation of assistance to paroled 16 asylum seekers commands Plaintiff to take this action, claiming that the injuries are “self- 17 inflicted” and that Plaintiff cannot manufacture standing by choosing to spend funds on 18 these services, citing Pennsylvania v. New Jersey, 426 U.S. 660 (1976). (Reply at 2). 19 While “self-inflicted” economic injuries may not be sufficient for Article III standing, the 20 Ninth Circuit has held that economic injuries to a state are sufficient where they stem 21 from a discontinuation of health services to citizens due to federal agency interim final 22 rules. Azar, 911 F.3d 558. In Azar, the state of California sued the director of the federal 23 Health and Human Services agency. Id. at 566. The state claimed that three interim final 24 rules that exempted certain entities from the contraceptive coverage of the Affordable 25 Care Act violated the APA and caused economic harm to the state. Id. at 567. The Court 26 found that women would lose contraceptive coverage in their insurance plans, and would 27 need to take advantage of state subsidized family planning and contraceptive services for 28 a potential cost of $18.5 million. Id. at 572. The Court held that the plaintiffs had Article 1 III standing because the potential economic injury was due to the interim final rules’ 2 impact on citizens. Id. at 571. 3 Just as in Azar, the asylum seekers here would not have needed the health and 4 safety resources supplied by Plaintiff but for the sudden decision by Defendants to 5 terminate the assistance provided through the Safe Release policy. Accordingly, 6 Plaintiff’s economic injury is fairly traceable to Defendants decision to stop assistance to 7 paroled asylum seekers and their families. If the Court was to grant Plaintiffs request to 8 vacate and set aside the decision of Defendants to terminate the Safe Release program, 9 and issue a preliminary and permanent injunction requiring Defendants to provide asylum 10 seekers and their family members with the assistance that was previously provided under 11 Safe Release, Plaintiffs would no longer have to provide these services and incur the 12 associated costs. 13 Accordingly, Plaintiff meets the threshold for establishing Article III standing 14 based on financial injury because it has “suffered an injury-in-fact that is fairly traceable 15 to the challenged conduct and that is likely to be redressed by a favorable judicial 16 decision.” Azar, 911 F.3d at 570. 17 B. Prudential Standing 18 Generally, “[a] person suffering legal wrong because of agency action, or 19 adversely affected or aggrieved by agency action within the meaning of a relevant statute, 20 is entitled to judicial review thereof.” 5 U.S.C. § 702. The statute contains two 21 provisions; 1) the party claiming the right to sue must identify some “agency action” that 22 affects him or her in the proscribed manner, and 2) the party seeking review must 23 demonstrate that he or she has suffered a “legal wrong” due to the challenged action, or 24 has been “adversely affected or aggrieved” within the meaning of the pertinent statute. 25 Lujan v. National Wildlife Federation, 497 U.S. 871, 882-83 (1990). “[A] plaintiff 26 seeking judicial review under the Administrative Procedure Act (APA) must show that 27 ‘the interest sought to be protected by [him was] arguably within the zone of interests to 28 be protected or regulated by the statute or constitutional guarantee in question.’” Bennett 1 v. Plenert, 63 F.3d 915, 917 (9 Cir. 1995)(citing Association of Data Processing 2 Servicing Organizations, Inc. v. Camp, 397 U.S. 150 (1970).) If a party seeks review “not 3 pursuant to specific authorization in the substantive statute, but only under the general 4 review provisions of the APA, the ‘agency action’ in question must be ‘final agency 5 action.’” National Wildlife Federation, 497 U.S. at 882. 6 Defendants claim that the County and its claims are not within the zone of interests 7 protected by the APA because the relevant zone of interests are not those of the APA but 8 of the statue that Plaintiff says was violated, which in this case are the federal 9 immigration statutes, the Immigration and Nationality Act (INA). (Mot. at 14). Plaintiffs 10 cannot bring suit under the immigration statutes, according to Defendants, because 11 asylum seeking parolees are the subject of the contested regulatory action, not the 12 County. (Id. at 15.) Defendants contend that the federal immigration statutes do not 13 protect a county such as Plaintiff from bearing the incidental costs associated with the 14 federal immigration policies. (Id.) In response, Plaintiff contends that its claims are 15 within both the “zone of interests” test and the “legal wrong” basis for APA review. 16 (Oppo at 15-17). 17 1. Zone of Interests 18 The zone of interests test “forecloses suit only when a plaintiff’s interests are so 19 marginally related to or inconsistent with the purposes implicit in the statute that it cannot 20 reasonably be assumed that Congress authorized the plaintiff to sue.” Lexmark Int’l, Inc. 21 v. Static Control Components, Inc., 572 U.S 118, 130 (2014). “The question under the 22 zone-of-interests test of § 702 is simply whether the language of the statutes invoked by 23 the plaintiff or the supporting legislative history suggests a congressional intent to permit 24 the plaintiff's suit.” Federation for American Immigration Reform v. Reno, 93 F.3d 897, 25 902 (D.C. 1996)(“FAIR”). The test is not exceedingly demanding; Plaintiff does not need 26 to demonstrate “congressional purpose to benefit the would-be-plaintiff .” Id. 27 In East Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 768 (9th Cir. 2018), the 28 Ninth Circuit found that plaintiffs had prudential standing despite a challenge by 1 defendants that the plaintiffs, who were non-profits that provided assistance to asylum 2 seekers, were not within the INA’s asylum provisions zone of interests. Id. The Court 3 found that “[a]lthough the Organizations are neither directly regulated nor benefitted by 4 the INA, we nevertheless conclude that their interest in ‘provid[ing] the [asylum] services 5 [they were] formed to provide’ falls within the zone of interests protected by the INA.” 6 Id. 7 The asylum seekers paroled into the United States under 8 U.S.C. § 1182(d)(5)(A) 8 of the INA are admitted based on urgent humanitarian reasons or for significant public 9 benefit, therefore, as Plaintiff claims, they are often the most vulnerable including those 10 with serious medical conditions, pregnant women and young children who require 11 medical care and additional services. See 8 U.S.C. 1182(d)(5)(A); 8 C.F.R. § 212.5(b). 12 The abrupt termination of the Safe Release program’s assistance to this population 13 foreseeably caused an immediate humanitarian and public health crisis to which Plaintiff 14 responded at great cost. Although the County is not directly regulated by the INA, it is at 15 least arguably within the zone-of-interests due to the economic harm it has suffered and 16 continues to suffer as a result of the INA policies. 17 2. Legal Wrong 18 To demonstrate prudential standing under 5 U.S.C. § 702, “the party seeking 19 review under § 702 must show that he has ‘suffer[ed] legal wrong’ because of the 20 challenged agency action, or is ‘adversely affected or aggrieved’ by that action ‘within 21 the meaning of a relevant statute.’” National Wildlife Federation, 497 U.S. at 883. 22 Plaintiff argues that the Defendants’ arbitrary and capricious policies and violations of 23 the APA’s procedural requirements harmed the County and that these allegations are 24 sufficient to make a prima facie showing of a “legal wrong” for prudential standing. 25 (Oppo. at 16.) In response, Defendants contend that “legal wrong” in this section of the 26 APA means the invasion of a legally protected right arising from the common law, 27 Constitution, statute or Congressional intent to confer a benefit, and Plaintiff has failed to 28 point to such a source. (Reply at 6). 1 Courts have generally held that the phrase “legal wrong” under the APA means 2 that a party has suffered an “invasion of a legally protected right.” Braude v. Wirtz, 350 3 F.2d 702, (9th Cir. 1965); Commonwealth Utilities Corp. v. Johnson, 245 F.Supp.3d 4 1239,1257 (D. Northern Mariana Islands 2017). At least one court has found that a 5 plaintiff may successfully assert standing under the APA for suffering a “legal wrong” 6 that arises not under a statute, but instead from a non-statutory or common law type of 7 review. Seeger v. United States Department of Defense, 306 F.Supp.3d 265 (D.D.C. 8 2018). The Seeger court found that “[s]uch a legal wrong includes an agency's basing its 9 ‘decisions on arbitrary or capricious abuses of discretion,’ so that ‘one who makes a 10 prima facie showing alleging such action on the part of an agency ... has standing to sue’ 11 under the APA.” Id. at 277. Plaintiff suggests this Court should follow suit. This Court is 12 not bound by the decision in Seeger, and finds no controlling authority dictating such a 13 result.1 Accordingly, Plaintiff lacks standing to pursue its claims under a “legal wrong” 14 theory under the APA. 15 Moreover, the procedures at issue do not confer standing on Plaintiff because those 16 procedures were not designed to protect a concrete interest of the County. Lujan v 17 Defenders of Wildlife, 504 U.S. 555 at 573 n. 8. Plaintiff does not argue that it has a 18 procedural right under the INA it seeks to enforce. Instead, Plaintiff contends that 19 Defendants’ termination of the Safe Release policy was arbitrary and capricious and an 20 abuse of discretion because Defendants failed to follow procedures under the APA. 21 While the County asserts injuries that arguably fall within the INA’s zone of interests, no 22 rights are conferred upon the County by the INA. See Fed’n for Am. Immigration 23 Reform, Inc. v. Reno, 93 F.3d at 899, 904 (9th Cir. 1996). The source of Plaintiff’s 24 25
26 27 1 “A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different 28 1 injuries is at least two steps removed from the alleged procedural defects, therefore the 2 County cannot maintain standing under 12(b)(1) to pursue the claims. 3 3. Judicial Review 4 Unless "agency action is committed to agency discretion by law, the APA allows 5 for judicial review: ‘A person suffering legal wrong because of agency action, or 6 adversely affected or aggrieved by agency action within the meaning of a relevant statute, 7 is entitled to judicial review thereof’." 5 U.S.C. §§ 701(a)(2), 702. Sections 701 through 8 706 of the APA provide “that agency actions are reviewable under federal question 9 jurisdiction ... even if no statute specifically authorizes judicial review.” Allen v. Milas, 10 896 F.3d 1094, 1104 (9th Cir. 2018). Nevertheless, not every agency action is subject to 11 judicial review. The scope of judicial review is limited to "compel[ling] agency action 12 unlawfully withheld or unreasonably delayed; and [¶] hold[ing] unlawful and set[ting] 13 aside" certain kinds of agency actions, findings, and conclusions. Id.; § 706. 14 Defendants assert that judicial review is precluded here because the federal 15 government has not waived sovereign immunity. (Id. at 16). Under the doctrine of 16 sovereign immunity, "[t]he United States, as a sovereign, is immune from suit, save as it 17 consents to be sued, and the terms of its consent to be sued in any court define that court's 18 jurisdiction to entertain the suit. The APA’s waiver of sovereign immunity does not apply 19 1) “to the extent that statutes preclude judicial review,” under 5 U.S.C. § 701(a)(1); and 20 2) where “agency action is committed to agency discretion by law.” 5 U.S.C. § 21 701(a)(2); Brem-Air Disposal v. Cohen, 156 F.3d 1002, 1004 n.3 (9th Cir. 1998) (internal 22 quotation marks and citation omitted). A waiver of the Government's sovereign immunity 23 will be strictly construed, in terms of its scope, in favor of the sovereign." Quarty v. 24 United States, 170 F.3d 961, 972 (9th Cir. 1999) (internal ellipses, brackets, quotation 25 marks and citations omitted). The APA precludes jurisdiction of federal courts 26 "whenever Congress has provided another 'adequate remedy'." Id. at 1004, citing 5 27 U.S.C. § 704. 28 1 Defendants claim that 8 U.S.C. § 1252(a)(2)(B)(ii) and 8 U.S.C. § 1182(d)(5)(A), 2 preclude judicial review. First, Defendants argue that “the decision to parole asylum 3 seekers into the United States” meets the criterion to prevail under § 1252(a)(2)(B)(ii); 4 therefore, the INA and APA bar judicial review and deny any waiver of sovereign 5 immunity. (Mot. at 17-18). Second, the decision whether to temporarily parole asylum- 6 seeking aliens is committed to DHS discretion, and because that process is a matter of 7 judgment and a complicated balancing of multiple factors, Defendants contend “the 8 statute authorizing parole does not itself provide a meaningful standard against which to 9 judge the agency’s exercise of discretion.” (Mot. at 18-19). Defendant claims that under 10 section 1182(d)(5) the agency’s discretion extends not only to the decision whether or not 11 to parole, but also actions taken after parole, such as providing travel and medical 12 assistance to paroled asylum seekers. (Reply at 8). Further, Defendants contend that 13 “urgent humanitarian reasons” or “significant public benefit” are considerations for the 14 determination whether or not to parole an individual asylum seeker, but do not apply for 15 determining the conditions under which paroled asylum seekers are released, for which 16 the statute provides no standard for evaluation. (Id.) 17 In response, Plaintiff argues that judicial review is not barred by section 701(a)(1) 18 because it is not challenging Defendants’ decision whether to parole any particular 19 asylum seeker, but instead it is asserting APA claims against policies that apply only after 20 Defendants determine that an asylum seeker should be paroled. (Oppo at 20-21). 21 Plaintiff also asserts that section 701(a)(2)’s exception to APA review for matters 22 committed to agency discretion must be balanced against the presumption of review in 23 section 706(2)(A). (Id. at 24). Plaintiff contends that section 701(a)(2)’s exception must 24 be read narrowly to only apply to a statute that provides no “meaningful standard against 25 which to judge the agency’s discretion.” Here, Plaintiff contends that its procedural and 26 substantive APA challenges to the termination of Safe Release policy would provide 27 sufficient standards to review the policy changes because it can use the “urgent 28 1 humanitarian reasons” and “significant public health benefit” standards to determine 2 whether Defendants’ change in policy aligns with those goals. (Id.) 3 Section 1252(2)(A) bars judicial review of individual parole decisions, however 4 some courts have rejected a broad reading of the statutory bar, finding that claims 5 challenging the legality of policies and processes under the INA may be reviewed by a 6 court. See 8 U.S.C. § 1252(2)(A); Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 7 2017); Aracely R. v. Nielsen, 319 F.Supp.3d 110, 134 (D.D.C. 2018)(statutory bar did not 8 prevent evaluation of defendants’ failure to follow procedures where DHS and ICE 9 implemented new policy of keeping asylum seekers in federal custody pending claim 10 adjudication.) Plaintiff is not challenging Defendants’ individual determinations of parole 11 for asylum seekers, but the conditions under which Defendants are releasing these 12 individuals. Plaintiff’s argument is unpersuasive because the Attorney General has 13 discretion to “parole into the United States temporarily under such conditions as he may 14 prescribe only on a case-by-case basis for urgent humanitarian reasons or significant 15 public benefit any alien applying for admission to the United States.” 8 U.S.C. 16 1182(d)(5)(emphasis added). As a result, Defendants have the discretion to change the 17 conditions under which they parole individuals, including whether they provide travel 18 and basic necessities. Accordingly, judicial review of those decisions under section 19 1252(a)(2)(B)(ii) is precluded. 20 Even if the Court had power to review Defendants’ decisions regarding what 21 services they provide paroled asylum seekers, there would be “no meaningful standard 22 against which to judge the agency’s exercise of discretion” because the statute 23 authorizing parole does not provide a clear benchmark. Heckler v. Chaney, 470 U.S. 821, 24 830 (1985)(“[R]eview is not to be had if the statute is drawn so that a court would have 25 no meaningful standard against which to judge the agency's exercise of discretion.”) 26 Instead, the agency must consider “a number of factors which are peculiarly within its 27 expertise.” Id. at 831. Although the abandoning of vulnerable asylum seekers and their 28 families on to the streets of San Diego without any assistance creates a humanitarian 1 crisis with potentially significant public health concerns, Plaintiff does not point to any 2 clear standard this Court could employ to determine whether Defendants’ actions violated 3 the agency’s grant of discretion to parole individuals under conditions it deems 4 appropriate. As a result, the Court lacks jurisdiction to review these claims. 5 4. Final Agency Action 6 “[T]he fact that an agency decision is not final under the APA is not a defect in 7 subject matter jurisdiction.” Idaho Watersheds Project v. Hahn, 307 F.3d 815, 830 (9th 8 Cir. 2002), abrogated on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 9 U.S. 7, (2008), as recognized in Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 10 (2010). Therefore, the Court considers this argument under Rule 12(b)(6). 11 Where “review is sought not pursuant to specific authorization in the substantive 12 statute, but only under the general review provisions of the APA, the “agency action” in 13 question must be “final agency action.” n, 497 U.S. at 882; 5 U.S.C. § 704 (“Agency 14 action made reviewable by statute and final agency action for which there is no other 15 adequate remedy in a court are subject to judicial review” (emphasis added).) A two-part 16 test determines whether an agency action is final under the APA: “[f]irst, the action must 17 mark the consummation of the agency’s decisionmaking process — it must not be of a 18 merely tentative or interlocutory nature.. . . [a]nd second, the action must be one by 19 which rights or obligations have been determined, or from which legal consequences will 20 flow.” Bennett, 520 U.S. at 177-78 (1997) (internal quotation marks and citations 21 omitted). The focus is "on the practical and legal effects of the agency action." Or. 22 Natural Desert Ass’n v. U.S. Forest Service, 465 F.3d 977, 982 (9th Cir. 2006). “The 23 general rule is that administrative orders are not final and reviewable ‘unless and until 24 they impose an obligation, deny a right, or fix some legal relationship as a consummation 25 of the administrative process.’” Ukiah Valley Medical Center v. Federal Trade 26 Commission, 911 F.2d 261 (9th Cir. 1990). 27 Defendants contend the cessation of assistance to paroled asylum seekers is not a 28 final agency action because it does not have the status of law, and the question it raises is 1 not a legal one. (Mot. at 20-21). Plaintiffs argue that the discontinuation of the Safe 2 Release policy is subject to judicial review as final agency action under 5 U.S.C. § 704, 3 because the Safe Release program operated consistently from 2009 until the sudden 4 termination and has not been reinstated, therefore it was not a temporary policy change. 5 (Oppo. at 26). In addition, the end of the Safe Release program has produced legal 6 consequences for the County and has had a direct and immediate impact on the day-to- 7 day operations of the County due to the need for humanitarian aid to paroled asylum 8 seekers. (Id.) Plaintiff contends this action was "arbitrary, capricious, an abuse of 9 discretion, or otherwise not in accordance with law" under 5 U.S.C. § 706(2)(A). (Id. at 10 26-27). 11 The discontinuation of the Safe Release program meets the first prong of the 12 Bennett test because it is intended as a final action that is not merely tentative. There is no 13 indication that the agency intends to reinstate Safe Release, and no assistance has been 14 provided to paroled asylum seekers through the program since 2018. The termination of 15 the program reflects the consummation of the decision-making process on the issue, 16 despite there being no published pronouncement. 17 However, the termination of the Safe Release program does not meet the second 18 prong of the Bennett test because it did not create a legal obligation on the part of the 19 County. “The imposition of an obligation or the fixing of a legal relationship is the 20 indicium of finality in the administrative process.” Cabaccang v. United States 21 Citizenship and Immigration Services, 627 F.3d 1313, 1315 (9th Cir. 2010). Plaintiff 22 argues that the agency action produced legal consequences and had an immediate effect 23 on the County’s day-to-day operations because it created a public health emergency that 24 required an immediate and costly response from the County. (Oppo at 26). It is 25 undisputed that the influx of vulnerable paroled asylum seekers had an immediate impact 26 on the daily operations of the Plaintiff, but the Court must consider “whether the [action] 27 has the status of law or comparable legal force, and whether immediate compliance with 28 its terms is expected.” Ukiah Valley Medical Center, 911 F.2d at 264. Although Plaintiff 1 took action to protect its populace and stem any public health issues resulting from the 2 decision, the discontinuation of the Safe Release program did not impose any legal 3 obligations on Plaintiff. Review is precluded because the termination of the Safe Release 4 program is not a “final agency action” ripe for review. 5 C. Due Process Claim 6 Plaintiff contends that Defendants’ sudden termination of the Safe Release 7 program without notice and comment resulted in the deprivation of a property right 8 protected by the Fifth Amendment of the United States Constitution. The Fifth 9 Amendment prohibits the deprivation of “life, liberty, or property, without due process of 10 law.” (U.S. Const. amend. V.) In the Ninth Circuit, a plaintiff asserting a violation of 11 procedural due process must allege: “(1) the deprivation of a constitutionally protected 12 liberty or property interest, and (2) the “denial of adequate procedural protections.” 13 Gebhardt v. Nielsen, 879 F.3d 980, 988 (9th Cir. 2018). 14 Plaintiff asserts that it has a constitutionally protected liberty or property interest in 15 the “expenses it has incurred and will incur, and funds that it has been forced to expend 16 and will expend, as a result of Defendants’ unlawful termination of, or change to, the 17 Safe Release policy” without notice or an opportunity to be heard. (Compl. ¶ 62-63). 18 Defendants argue that Plaintiff has not identified any entitlement to federal funds nor any 19 authority granting Plaintiff a constitutionally protected liberty or property interest in the 20 funds it has spent and is spending. (Mot. 21). 21 No controlling authority indicates that a county may assert a procedural due 22 process claim for the deprivation of a property interest in funds expended for immigration 23 related expenses. The holding of County Of Santa Clara v. Trump, 250 F.Supp.3d 497 24 (N.D. Cal. 2017), suggests that a county may assert a property interest under the Fifth 25 Amendment for funds to assist with immigration-related expenses, but only where the 26 County has a property interest in federal funds that Congress had already appropriated 27 and the County had accepted. Id. at 536. Santa Clara is unpersuasive in the present case 28 because no such funds were earmarked for Plaintiff, and it does not constitute binding 1 || precedent. Green, 563 U.S. at 692 n.7. Accordingly, the Court dismisses the claim under 2 || 12(b)(6) for failure to state a legally cognizable theory. 3 D. Leave to Amend 4 Finally, the Court considers whether Plaintiff should be granted leave to amend 5 ||Counts One and Two. See Ebner v. Fresh, Inc., 838 F.3d 958, 963 (9th Cir. 2016). Rule 6 || 15 advises leave to amend shall be freely given as justice so requires. Fed. R. Civ. P. 7 || 15(a)(2). “This policy is to be applied with extreme liberality.” Eminence Capital, LLC v. 8 || Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (internal quotation marks and citation 9 || omitted). 10 In the absence of any apparent or declared reason — such as undue delay, bad faith 11 || or dilatory motive on the part of the movant, repeated failure to cure deficiencies by 12 ||amendments previously allowed, undue prejudice to the opposing party by virtue of 13 || allowance of the amendment, futility of the amendment, etc. — the leave sought should, as 14 || the rules require, be freely given. Foman v. Davis, 371 U.S. 178, 182 (1962). Dismissal 15 || without leave to amend is not appropriate unless it is clear the complaint cannot be saved 16 || by amendment. See id. Because amendment of Claims One and Two would be futile, 17 || leave to amend is denied. 18 || III. CONCLUSION AND ORDER 19 For the reasons stated above, Defendants motion is GRANTED. 20 IT IS SO ORDERED. 21 ||Dated: June 5, 2020 Y J 22 fw sawp Uf? 3 H6nU. James LorenzH United States District Judge 24 25 26 27 28