Massachusetts Coalition for Immigration Reform v. U.S. Citizenship and Immigration Services

• Court: District Court, District of Columbia
• Decided: May 15, 2024
• Docket: Civil Action No. 2020-3438
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MASSACHUSETTS COALITION FOR IMMIGRATION REFORM, et al.,

Plaintiffs, Case No. 1:20-cv-03438 (TNM) v.

U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,

Defendants.

MEMORANDUM ORDER

Some three years ago, Plaintiffs sued the Government, seeking vacatur of various

immigration policies. They claimed that the policies were procedurally defective because the

Government did not first conduct an environmental analysis under the National Environmental

Policy Act. In the time since, this case has seen three rounds of dispositive motion briefing and

one Amended Complaint. Plaintiffs now seek to amend their Complaint again. This time, the

Court denies their request.

I.

Plaintiffs sued in November 2020, challenging the Government’s immigration policies.

Compl., ECF No. 1. While their initial Complaint was barebones, they amended it about ten

months later, adding a host of challenges to specific immigration policies. Amend. Compl., ECF

No. 17. The Amended Complaint included, as relevant here, a challenge to an unnamed policy

that they alleged instructed Customs and Border Patrol agents “to give permission slips to seek

more permanent legal status to those illegal border crossers they meet, and to help them board buses to destinations within the interior of the country.” Id. ¶¶ 232–34. Plaintiffs refer to this as

the “mass release” policy.

But less than two months after Plaintiffs amended their Complaint, it was already out of

date. The Government issued a new policy in November 2021 titled “Parole Plus Alternative to

Detention.” Exhibits at 2–4, ECF No. 58-4. And eight months later, in July 2022, the

Government changed policies again, this time to one called “Policy on the Use of Parole Plus

Alternatives to Detention to Decompress Border Locations.” Id. at 5–8. A year later, in May

2023, the Government again changed tack, issuing yet another new policy named “Policy on

Parole with Conditions in Limited Circumstances Prior to the Issuance of a Charging

Document.” Id. at 9–15.

While all that was going on, this case proceeded apace. The parties briefed, and the

Court ruled on, a motion to dismiss the Amended Complaint. ECF Nos. 19, 22, 23, 27. In

December 2022, after the second policy change, the Government turned over the administrative

record to Plaintiffs. Oct. 20, 2022 Minute Order; ECF No. 33. And from February through June

2023, the parties briefed cross-motions for summary judgment. ECF Nos. 34, 37, 38, 41, 43, 45.

The Court ruled on those motions in September, significantly narrowing the scope of the claims

and clarifying which Plaintiffs may have standing to sue. Massachusetts Coal. for Immgr. Ref. v.

U.S. Dep’t of Homeland Sec., --- F. Supp. 3d ---, 2023 WL 6388815 (D.D.C. 2023).

Now, Plaintiffs move to again amend their Complaint. They wish to add a new claim

addressing the purported “mass release” policy they first identified in 2021. Mot., ECF No. 58.

This claim addresses the most recent version of that policy and is offered in response to the

Court’s finding that their previous claim was moot. Massachusetts Coal., 2023 WL 6388815, at

*9. The Government opposes Plaintiffs’ motion, and the motion is now ripe for decision.

2 II.

Plaintiffs seek leave to amend their Complaint under Federal Rule of Civil Procedure

15(d). Mot. at 1. Under Rule 15(d), a court “may, on just terms, permit a party to serve a

supplemental pleading.” Fed. R. Civ. P. 15(d). Because Rule 15(d) does not set forth a standard

for assessing motions filed under it, the Rule 15(a) standard presumptively applies.

Under Rule 15(a)(2), the “court should freely give leave [to amend] when justice so

requires.” Fed. R. Civ. P. 15(a)(2). The three touchstones in deciding whether to grant leave to

amend are whether the amendment “will promote the economic and speedy disposition of the

entire controversy between the parties,” whether it will “cause undue delay or trial

inconvenience,” and whether it will “prejudice the rights of any of the other parties to the

action.” Hall v. CIA, 437 F.3d 94, 101 (D.C. Cir. 2006). This is a “liberal standard,” Firestone

v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996), and in most cases, a court should grant leave

to amend. Foman v. Davis, 371 U.S. 178, 182 (1962).

Still, there are limits. The choice whether to grant leave to amend is “within the

discretion of the trial court.” Zenith Radio Corp. v. Hazeltine Rsch., Inc., 401 U.S. 321, 330

(1971). And amendment is sometimes unwarranted—particularly where there has been “undue

delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies

by amendments previously allowed, undue prejudice to the opposing party,” or where an

amendment is futile. Foman, 371 U.S. at 182. At times, the Court can also construe a significant

delay in moving to amend the Complaint as a constructive waiver of the new claims. Zenith

Radio Corp., 401 U.S. at 332. In any event, the Court must always assess the prejudice to the

nonmoving party in deciding whether to grant leave to amend. Id. at 330–31.

3 III.

Plaintiffs brought this case in November 2020. Compl. at 50. They amended their

Complaint once, as a matter of course, after the Government moved to dismiss. See Amend.

Compl.; Fed. R. Civ. P. 15(a)(1). They now seek to amend their Complaint a second time, so

they require either the written consent of the opposing party or leave of the Court. Fed. R. Civ.

P. 15(a)(2). The Government has denied its consent, Opp’n at 1, ECF No. 60, so the question

here is whether the Court should grant leave to amend. It will not.

Plaintiffs’ motion comes too late in the day, and would work too much disruption to the

trial schedule, to be granted. Consider briefly the procedural history of this case. The first

Complaint was filed three and a half years ago, in November 2020. Compl. at 50. The current

operative Complaint was filed some ten months later, in September 2021. Amend. Compl. at

113. The parties and the Court have now labored for two and a half years under the operative

Complaint, filing and ruling on dispositive motions and conducting discovery.

Allowing amendment now would cause much of that time and effort to go to waste. The

Government has had the opportunity to challenge Plaintiffs’ claims at both the motion-to-dismiss

stage and the summary-judgment stage of this case. Those dispositive motions have winnowed

down the live issues to whether Plaintiffs have standing to sue regarding two specific policies.

And the Court’s upcoming evidentiary hearing is designed to address that issue, and that issue

alone.

Permitting amendment now would inject new issues into this case. The Court would

need to assess whether Plaintiffs have standing to sue over this new, as-yet-untested claim. That

may require re-opening of discovery. More, the Court would need to address the merits of this

claim. Although the Court has been able to evaluate Plaintiffs’ other claims through successive

4 rounds of dispositive motion briefing, it has had no such opportunity here. And the Government

would be entitled to seek, at a minimum, summary judgment briefing before the evidentiary

hearing. See Fed. R. Civ. P. 56(a) & (b). But allowing more briefing would require the Court to

put off the upcoming evidentiary hearing and delay resolution of this case for several more

months. This delay would prejudice the Government.

Plaintiffs state that no further dispositive motion briefing would be necessary. Reply at

10, ECF No. 61. But parties have a general right to file such dispositive motions. See Jones v.

L.A. Cent. Plaza LLC, 74 F.4th 1053, 1058 (9th Cir. 2023). And in an Administrative Procedure

Act case like this one, summary judgment is ordinarily the mechanism the Court uses to evaluate

Plaintiffs’ claims. Cayuga Nation v. Bernhardt, 374 F. Supp. 3d 1, 9 (D.D.C. 2019). This case

illustrates that very principle: Although the Court will soon be holding an evidentiary hearing,

that post-summary judgment proceeding addresses solely the Court’s jurisdiction, rather than the

merits of the case. So it is not true that the Court could leapfrog further dispositive motions and

take Plaintiffs’ new claims directly to judgment.

The resulting delay counsels strongly against amendment. Congress has expressed its

judgment that three years is presumptively too long for a civil case to remain pending in the

federal courts. See 28 U.S.C. § 476(a)(3). This case has already passed that threshold. The

Court is loath to let it linger longer.

Nor is it the case that Plaintiffs have been fully diligent in seeking amendment. See

Foman, 371 U.S. at 182. The Government turned over the administrative record in December

2022. ECF No. 33. At that point, Plaintiffs were on notice that the policy they had challenged

was no longer in effect. Still, they chose not to amend their Complaint. Instead, they made the

decision to proceed to summary judgment and argue that the claim was not moot. They were

5 entitled to make that choice. But, as a result, they passed up their opportunity to timely amend

their Complaint. Zenith Radio, 401 U.S. at 332 (explaining that failure to timely amend

complaint may be construed as waiver of right to amend). The Court cannot further delay this

case because they wish to do so now. Ackermann v. United States, 340 U.S. 193, 198 (1950)

(“There must be an end to litigation someday, and free, calculated, deliberate choices are not to

be relieved from.”).

Indeed, Plaintiffs could have known about the policy changes even before they received

the administrative record. As it turns out, at least one of the policy changes was publicly known

as early as September 2022. See, e.g., Ofc. of the Inspector Gen’l, DHS, U.S. Border Patrol

Faces Challenges Administering Post-Apprehension Outcomes Consistently Across Sectors at 4

n.6, 19 n.24 (Sept. 13, 2022), https://www.oig.dhs.gov/sites/default/files/assets/2022-09/OIG-22-

68-Sep22.pdf [https://perma.cc/S7UJ-32LF] (Parole Plus Alternative to Detention). Still others

became public over the next several months and, by the time summary judgment briefing rolled

around, all three policy changes were publicly known. See Florida v. United States, 660 F.

Supp. 3d 1239, 1257 (N.D. Fla. 2023) (Policy on the Use of Parole Plus Alternatives to

Detention to Decompress Border Locations); Muzaffar Chishti & Kathleen Bush-Joseph, U.S.

Border Asylum Policy Enters New Territory Post-Title 42, Migration Policy Institute Policy Beat

(May 25, 2023), https://www.migrationpolicy.org/article/border-after-title-42

[https://perma.cc/RK7M-RYUM] (Policy on Parole with Conditions in Limited Circumstances

Prior to the Issuance of a Charging Document). Considering the public knowledge of these

policy changes, it is not clear that Plaintiffs used appropriate speed in amending their Complaint.

Weighed against the delay in resolving this case, the prejudice to Plaintiffs from denying

their motion is minimal. This denial does not prevent them from raising a claim based on the

6 new policy in another case. All it does is avoid tacking on a new claim in this case, where doing

so would circumvent the Federal Rules’ structure for pretrial dispositive motions practice.

In sum, then, the relevant factors weigh against granting leave to amend. Amending

would significantly delay the resolution of this case. Plaintiffs did not exercise reasonable speed

in seeking leave to amend. And denying amendment would not significantly prejudice Plaintiffs.

In the face of such lopsided interests, the Court must deny the motion, even under Rule 15(a)’s

liberal standard.

IV.

The Court acknowledges Plaintiffs’ predicament. Attempting to litigate in the face of

quickly changing policies can be like playing Whack-a-Mole. Still, Plaintiffs have not suggested

that the Government has changed its policies to evade their lawsuit. Indeed, the changing

policies appear to result at least in part from a complex and dynamic situation at the border.

This lawsuit has already dragged on more than three years. It was filed during the last

presidential administration and, at this pace, it may well continue into the next. “At some point

all litigation must end. I see no compelling reason for further delaying this one.” Jimenez v.

U.S. Dist. Ct., 84 S.Ct. 14, 19 (1963) (Goldberg, J., in chambers). So the Court denies Plaintiffs’

motion, and the case will proceed to the evidentiary hearing on Plaintiffs’ standing to sue as

scheduled.

Accordingly, it is hereby ORDERED that the Motion to Amend is DENIED.

SO ORDERED.

2024.05.15 15:31:41 -04'00' Dated: May 15, 2024 TREVOR N. McFADDEN, U.S.D.J.