State of Washington v. US Department of Homeland Security

• Court: District Court, W.D. Washington
• Decided: April 10, 2020
• Docket: 2:19-cv-02043
• Status: Unknown

Opinion

1 2

3 UNITED STATES DISTRICT COURT 4 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 5 STATE OF WASHINGTON, 6 Plaintiff, 7 v. 8 U.S. DEPARTMENT OF HOMELAND 9 SECURITY; CHAD WOLF, Acting Secretary of U.S. Department of C19-2043 TSZ 10 Homeland Security; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; ORDER 11 MATTHEW T. ALBENCE, Acting Director of U.S. Immigration and Customs 12 Enforcement; U.S. CUSTOMS AND BORDER PROTECTION; MARK 13 MORGAN, Acting Commissioner of U.S. Customs and Border Protection, 14 Defendants. 15

THIS MATTER comes before the Court on defendants’ motion to dismiss, docket 16 no. 118. Having reviewed all papers filed in support of, and in opposition to, the motion, 17 the Court enters the following order. 18 Background 19 This litigation serves as a reminder that our Constitution establishes “a healthy 20 balance of power between the States and the Federal Government,” and thereby reduces 21 “the risk of tyranny and abuse from either front.” See Gregory v. Ashcroft, 501 U.S. 452, 22 1 458 (1991). Recognizing that “[i]n the tension between federal and state power lies the 2 promise of liberty,” id. at 459, the Court considers three basic principles: (i) when

3 Congress wields the “extraordinary power” authorized by the Supremacy Clause to 4 impose its “will” on the States, it must do so in “unmistakably clear” statutory language, 5 id. at 460 (citing U.S. CONST., art. VI, cl. 2 and Atascadero State Hosp. v. Scanlon, 473 6 U.S. 234, 242 (1985)); (ii) administrative agencies may not act outside the scope of the 7 authority delegated to them by Congress, see 5 U.S.C. § 706(2)(C); and (iii) despite the 8 frequent changes within the executive branch, administrative agencies must maintain a

9 sense of consistency, departing from prior policies only when “good reasons” support a 10 new direction, see F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) 11 [hereinafter “Fox”].1 This case, brought by the State of Washington (“State”) against a 12 federal agency, the U.S. Department of Homeland Security (“DHS”), and two of its 13 operational components, U.S. Immigration and Customs Enforcement (“ICE”) and U.S.

14 Customs and Border Protection (“CBP”),2 relies upon these doctrines, which are designed 15 to preserve our federalist system of government. 16 17 18

19 1 In Fox, the Supreme Court clarified that an agency need not show that “the reasons for the new policy are better than the reasons for the old one.” 556 U.S. at 515 (emphasis in original). 20 Rather, the new policy must simply be “permissible under the statute,” supported by “good reasons,” and “believe[d]” by the agency to be “better,” where such belief would be reflected by 21 a “conscious change of course.” Id. 2 The States also sues (i) Chad Wolf, Acting Secretary of DHS, (ii) Matthew Albence, Acting 22 Director of ICE, and (iii) Mark Morgan, Acting Commissioner of CBP. 1 In this matter, the State challenges defendants’ practice of civilly3 arresting people 2 in or near Washington state courthouses, which is an administrative action referred to as a

3 “courthouse arrest.” The State contends that, prior to January 20, 2017, when President 4 Donald J. Trump assumed office, “courthouse arrests” were rarely, if ever, conducted, 5 and when performed, they involved only aliens considered particularly dangerous. See 6 Compl. at ¶ 30 (docket no. 1) (citing Philip T. Miller,4 Guidance Update: Enforcement 7 Actions At or Near Courthouses (Jan. 26, 2015), Ex. J to Melody Decl. (docket no. 7- 8 10)).

9 Since early 2017, however, “courthouse arrests” have occurred in 20 of the 39 10 counties in Washington, including in four of the five largest counties, “all of which have 11 a significant percentage of noncitizen residents and families of mixed immigration 12 status.” Compl. at ¶ 52 (docket no. 1).5 The Complaint describes these “courthouse 13 arrests” as occurring in a clandestine manner, with agents dressed in plain clothes

14 confronting individuals within, or while in transit to or from, state courthouses, and 15 arrestees being placed into sometimes unmarked cars. See id. at ¶¶ 49-51 & 70. The 16 State raises concerns about the risks to bystanders, court personnel, or law enforcement 17

18 3 The State does not challenge defendants’ authority to conduct criminal arrests at or in the 19 vicinity of state courthouses. See 8 U.S.C. § 1357(a)(4). 20 4 Philip Miller was formerly the Assistant Director for Field Operations, DHS, ICE, Enforcement and Removal Operations (“ERO”). 21 5 Paragraph 52 of the Complaint lists Adams, Benton, Clark, Cowlitz, Franklin, Grant, Grays Harbor, King, Kitsap, Kittitas, Mason, Okanogan, Pacific, Pierce, Skagit, Spokane, Thurston, 22 Walla Walla, Whatcom, and Yakima Counties as having experienced “courthouse arrests” since 1 officers who might misinterpret these surreptitious “courthouse arrests” as “kidnappings” 2 or other crimes, see id. at ¶¶ 51, 70, & 78, and it alleges that “courthouse arrests” have

3 had “a noticeable chilling effect on courthouse attendance” in almost 60% of 4 Washington’s counties, see id. at ¶ 69.6 5 The State has pleaded five claims, three of which allege that defendants have 6 violated the Administrative Procedure Act (“APA”), one of which is premised on the 7 Tenth Amendment of the United States Constitution, and last of which asserts that, in 8 conducting “courthouse arrests,” defendants are interfering with certain constitutional and

9 statutory rights of access to state courts. See id. at § V, ¶¶ 110-33. Defendants move to 10 dismiss this matter pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), 11 asserting that the Court lacks jurisdiction to hear the State’s claims and, alternatively, that 12 the State has failed to articulate claims for which relief may be granted. 13 Discussion

14 A. Jurisdiction 15 Defendants’ challenges to the Court’s jurisdiction relate solely to the State’s APA 16 and right-of-access-to-court claims; defendants make no separate argument that the Court 17 lacks jurisdiction with regard to the State’s Tenth Amendment claim.7 The State’s APA 18

19 6 Paragraph 69 of the Complaint indicates that, in at least 23 of Washington’s 39 counties, prosecutors, public defenders, legal aid providers, domestic violence advocates, and/or others 20 have reported the “chilling effect” of defendants’ “courthouse arrests.” 7 Defendants contend that “the unavailability of APA review dooms all of the State’s claims” 21 because such claims rely on the waiver of sovereign immunity contained in the APA. Reply at 2 n.1 (docket no. 128). Defendants did not raise this argument in their motion, and a footnote in a 22 reply brief is not an appropriate manner of presenting it for the first time. Moreover, the issue 1 claims are asserted under two different provisions of the APA, namely (i) 5 U.S.C. 2 § 706(2)(C), which requires the Court to “hold unlawful and set aside agency action,

3 findings, and conclusions found to be . . . in excess of statutory jurisdiction, authority, or 4 limitations, or short of statutory right,” and (ii) 5 U.S.C. § 706(2)(A), which requires that 5 agency action deemed “arbitrary, capricious, an abuse of discretion, or otherwise not in 6 accordance with law” be set aside. 7 The State makes two claims under § 706(2)(C), one premised on a state common- 8 law privilege against civil arrest in or near a courthouse, and the other based on a similar

9 federal common-law privilege. The State contends that these privileges existed when the 10 Immigration and Nationality Act of 1952 (“INA”) was enacted, that the INA did not 11 abrogate these privileges, and that defendants exceeded the authority delegated to them 12 by the INA when they recently adopted a policy permitting “courthouse arrests” of aliens 13 meeting certain criteria. See Compl. at ¶¶ 111-13 & 116-18 (docket no. 1).

14 The State has pleaded a different claim under § 706(2)(A) of the APA. Under the 15 “arbitrary or capricious” standard, the State alleges that defendants (a) have not 16 sufficiently explained their “courthouse arrest” policy, (b) have adopted a policy that is 17 not consistent with statutory requirements for non-citizens to appear in state courts, 18 (c) have failed to consider the foreseeable harms and costs of their practice, (d) have not

19 provided legitimate reasons for prioritizing “courthouse arrests” in light of the harms 20 triggered by those arrests, and (e) have not adequately justified their changes to policies 21 that were in effect during prior administrations. See id. at ¶¶ 121-22. 22 1 Defendants contend that the Court lacks jurisdiction as to the State’s APA claims 2 for the following reasons: (i) the “courthouse arrest” policy is not a “final agency action”

3 subject to judicial review under the APA; (ii) the decision to engage in “courthouse 4 arrests” is committed to DHS’s, ICE’s, and/or CBP’s discretion and cannot be reviewed; 5 and/or (iii) the State of Washington lacks standing because it is not asserting its own 6 interests, but rather those of third parties, and it is not within the “zone of interest” 7 protected by the civil arrest provisions of the INA, 8 U.S.C. §§ 12268 and 1357.9 With 8 regard to the right-of-access-to-court claim, defendants assert the State lacks standing

9 because it has not identified a cognizable harm to itself, as opposed to third parties, that 10 stems from the “courthouse arrest” policy. Most of these arguments have previously 11 been rejected. See Ryan v. U.S. Immigration & Customs Enforcement, 382 F. Supp. 3d 12 142, 152-55 (D. Mass. 2019); see also New York v. U.S. Immigration and Customs 13 Enforcement, --- F. Supp. 3d ---, 2019 WL 6906274 at *3-7 (S.D.N.Y. Dec. 19, 2019).

14 1. Final Agency Action 15 The agency action on which the State’s APA claims are primarily based is the 16 issuance of ICE’s Directive No. 11072.1, titled “Civil Immigration Enforcement Actions 17

18 8 “On a warrant issued by the Attorney General, an alien may be arrested and detained pending a 19 decision on whether the alien is to be removed from the United States.” 8 U.S.C. § 1226(a). 20 9 “Any officer or employee of the [Immigration and Naturalization] Service authorized under regulations prescribed by the Attorney General shall have power without warrant . . . to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the 21 United States in violation of . . . law or regulation and is likely to escape before a warrant can be obtained for his arrest . . . .” 8 U.S.C. § 1357(a)(2). In 1993, the Immigration and Naturalization 22 Service was abolished and its functions divided among ICE, CBP, and U.S. Citizenship and 1 Inside Courthouses,” and dated January 10, 2018. See Directive No. 11072.1, Ex. Q to 2 Melody Decl. (docket no. 7-17). The Directive offers the following purpose and

3 background statement: 4 Individuals entering courthouses are typically screened by law enforcement personnel to search for weapons and other contraband. Accordingly, civil 5 immigration enforcement actions taken inside courthouses can reduce safety risks to the public, targeted alien(s), and ICE officers and agents. 6 When practicable, ICE officers and agents will conduct enforcement actions discreetly to minimize their impact on court proceedings. 7 Federal, state, and local law enforcement officials routinely engage in 8 enforcement activity in courthouses throughout the country because many individuals appearing in courthouses for one matter are wanted for 9 unrelated criminal or civil violations. ICE’s enforcement activities in these same courthouses are wholly consistent with longstanding law enforcement 10 practices, nationwide. And, courthouse arrests are often necessitated by the unwillingness of jurisdictions to cooperate with ICE in the transfer of 11 custody of aliens from their prisons and jails. Id. at ¶ 1 (emphasis added). The Directive then sets forth the following policy: 12 ICE civil immigration enforcement actions inside courthouses include 13 actions against specific, targeted aliens with criminal convictions, gang members, national security or public safety threats, aliens who have been 14 ordered removed from the United States but have failed to depart, and aliens who have re-entered the country illegally after being removed, when 15 ICE officers or agents have information that leads them to believe the targeted aliens are present at that specific location. 16 Aliens encountered during a civil immigration enforcement action inside a 17 courthouse, such as family members or friends accompanying the target alien to court appearances or serving as a witness in a proceeding, will not 18 be subject to civil immigration enforcement action, absent special circumstances, such as where the individual poses a threat to public safety 19 or interferes with ICE’s enforcement actions. 20 . . . . Civil immigration enforcement actions inside courthouses should, to the 21 extent practicable, continue to take place in non-public areas of the courthouse, be conducted in collaboration with court security staff, and 22 utilize the court building’s non-public entrances and exits. 1 Id. at ¶ 2 (emphasis added). The Directive defines “civil immigration enforcement 2 action” as an action “taken by an ICE officer or agent to apprehend, arrest, interview, or

3 search an alien in connection with enforcement of administrative immigration 4 violations.” Id. at ¶ 3.1. 5 The APA authorizes judicial review as to “[a]gency action made reviewable by 6 statute” or “final agency action for which there is no other adequate remedy in a court.” 7 5 U.S.C. § 704. For an agency action to be considered “final,” it must (i) “mark the 8 ‘consummation’ of the agency’s decisionmaking process . . . [and] not be of a merely

9 tentative or interlocutory nature,” and (ii) be an action “by which ‘rights or obligations 10 have been determined,’ or from which ‘legal consequences will flow.’” Bennett v. Spear, 11 520 U.S. 154, 177-78 (1997) (holding that a biological opinion constituted final agency 12 action). Directive No. 11072.1 satisfies both prongs of this test. It constitutes ICE’s 13 most recent and “final” word on who may be arrested inside a courthouse, and it has

14 legal consequences for such individuals. 15 Defendants assert that Directive No. 11072.1 merely provides guidance to agents 16 in exercising their discretion and therefore cannot be treated as a “final agency action.” 17 In a similar case in the Southern District of New York, this argument was rejected in light 18 of the 1,700% rise in “courthouse arrests” in New York following the promulgation of

19 Directive No. 11072.1. See New York, 2019 WL 6906274 at *6-7. The New York Court 20 reasoned that the sheer magnitude of the increase indicated that the policy at issue 21 “embodies ICE’s novel interpretation of its statutory authority to conduct courthouse 22 arrests, and not merely case-by-case guidance to individual officers.” Id. at *6. 1 The State of Washington relies on defendants’ own figures to suggest that 2 Washington has experienced a 600% upsurge in “courthouse arrests” since 2017, the year

3 before Directive No. 11072.1 was issued,10 and the anecdotal information offered by the 4 State conveys the sense of a systemic change. See Compl. at ¶¶ 20-67 (docket no. 1). 5 The record supports a conclusion that the effect of Directive No. 11072.1 was essentially 6 to eliminate prior constraints on “courthouse arrests,” not just with respect to ICE agents, 7 but also as to CBP personnel. 8 Defendants point out that Directive No. 11072.1 was issued by ICE, and that CBP

9 has not provided similar written guidance to its officers. A policy, however, need not be 10 written, or even made known to the public, to be judicially reviewable. See R.I.L.-R v. 11 12 10 In response to the State’s separate motion for a preliminary injunction, docket no. 6, which is not addressed in this Order, defendants provided the following statistics: 13 Agency Year Number of “Courthouse Arrests” 14 2017 17 Immigration and Customs 2018 25 15 Enforcement (ICE) 2019 23 16 Customs and Border FY 2018 55 Protection (CBP) FY 2019 96 17 Asher Decl. at ¶ 8 (docket no. 97); Watts Decl. at ¶ 8 (docket no. 96) (“FY 2018” runs from 18 October 1, 2017, to September 30, 2018, and “FY 2019” runs from October 1, 2018, to September 30, 2019). The State has deduced from the data provided by defendants that 19 “courthouse arrests” have increased by 600% over the last three years (from 17 in 2017 to 119 in 2019). See Reply at 4-5 (docket no. 109). The Court recognizes the State has ignored the 20 fact that ICE and CBP have annualized their figures differently, but defendants have not offered a different calculation for purposes of analyzing whether Directive No. 11072.1 is a “final 21 agency action.” The Court also acknowledges that defendants’ “courthouse arrest” figures were not set forth in the State’s Complaint, but in ruling on a factual (as opposed to a facial) jurisdictional attack, like the one now asserted by defendants, the Court may consider materials 22 outside the pleadings. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 1 Johnson, 80 F. Supp. 3d 164, 184 (D.D.C. 2015) (“Agency action . . . need not be in 2 writing to be final and judicially reviewable. A contrary rule ‘would allow an agency to

3 shield its decisions from judicial review simply by refusing to put those decisions in 4 writing.’” (citations omitted)); see also Wagafe v. Trump, 2017 WL 2671254 at *1 & *10 5 (W.D. Wash. June 21, 2017) (denying a motion to dismiss an APA challenge to “an 6 allegedly secret and unlawful government program”).11 Defendants’ “CBP has no 7 policy” argument suggests that CBP agents should be viewed as conducting “courthouse 8 arrests” without the agency’s approval. The Court cannot accept the notion that

9 CBP personnel engaged in such activity without prior, formal authorization, especially 10 given the volume of “courthouse arrests” over the past two years and the foreseeable 11 public outcry such arrests have generated. Moreover, because CBP has done nothing to 12 disassociate itself from its agents’ behavior, it must be viewed as at least ratifying the 13 “courthouse arrests” at issue and the furtive manner in which they have been performed.

14 Defendants also contend that, because Directive No. 11072.1 does not concern 15 arrests other than those effected “inside” courthouses, the State has not identified a final 16 policy regarding arrests “near” courthouses that is susceptible to challenge under the 17

18 11 See also Al Otro Lado, Inc. v. McAleenan, 394 F. Supp. 3d 1168, 1206-09 (S.D. Cal. 2019) 19 (concluding that the Trump Administration’s unwritten “turnback” policy was subject to judicial review); Amadei v. Nielsen, 348 F. Supp. 3d 145, 166 (E.D.N.Y. 2018) (observing that “[o]ther 20 courts have found a defendant agency’s behavior relevant to inferring the existence of a policy”); Aracely R. v. Nielsen, 319 F. Supp. 3d 110, 138-39 (D.D.C. 2018) (ruling that DHS’s unwritten “immigration deterrence” policy constituted “final agency action” for purposes of APA review); 21 Grand Canyon Tr. v. Pub. Serv. Co. of N.M., 283 F. Supp. 2d 1249, 1252 (D.N.M. 2003) (“Determination of the finality of agency action for purposes of judicial review is to be made in a 22 pragmatic way. For example, an agency’s failure to act, which is not likely to be in writing, may 1 APA. Defendants’ narrow reading of the Directive is disingenuous. To the extent 2 Directive No. 11072.1 does not authorize arrests “near” courthouses, then the applicable

3 policy for such arrests is the guidance issued in January 2015 by then ICE ERO Field 4 Operations Assistant Director Philip Miller, which was not explicitly superseded by 5 Directive No. 11072.1. Compare Miller’s Guidance Update, Ex. J to Melody Decl. 6 (docket no. 7-10) with Directive No. 11072.1, Ex. Q to Melody Decl. (docket no. 7-17). 7 The January 2015 policy limits arrests “near” courthouses to “priority” aliens, meaning 8 those suspected of terrorism or espionage or who had been convicted of a criminal “street

9 gang” offense, a felony involving immigration history, or an “aggravated felony” as 10 defined in the INA. See Ex. J to Melody Decl. (docket no. 7-10). Defendants make no 11 assertion that the 65 individuals subjected by ICE to “courthouse arrests” between 2017 12 and 2019 posed a threat to national security or had the requisite criminal history. Indeed, 13 of these 65 aliens, 11 had no conviction at all. Asher Decl. at 3 n.4 (docket no. 97). With

14 respect to the 54 arrestees who had convictions, the record is silent concerning whether 15 such convictions satisfied the criteria set forth in the January 2015 guidance. See id. at 16 ¶ 10(c). 17 Based on this record, a reasonable inference can be drawn that, in conducting the 18 65 “courthouse arrests” at issue, ICE agents relied on the broader categories of aliens set

19 forth in Directive No. 11072.1, paying no attention to the “letter” of the Directive, which 20 limits its scope to the inside, and not the vicinity, of a courthouse. ICE personnel having 21 done so, defendants cannot now assert that the Directive does not involve arrests “near” 22 courthouses and is not coextensive with the “courthouse arrest” policy that the State 1 seeks to enjoin. Defendants will not be permitted to release officers from the previous 2 restrictions on “courthouse arrests” by disseminating a formal, written, and numbered

3 policy, and then characterizing it as something other than a “final agency action.” 4 2. Agency Discretion 5 By its own terms, the APA applies except to the extent that (1) a statute precludes 6 judicial review, or (2) the action at issue “is committed to agency discretion by law.” 7 5 U.S.C. § 701(a). Defendants rely on the second exception to judicial review under the 8 APA, arguing that 8 U.S.C. §§ 1226(a)12 and 1357(a)(2)13 commit to DHS’s, ICE’s,

9 and/or CBP’s discretion the determination of where civil enforcement actions against 10 aliens present in the United States will occur. Defendants, however, reference no specific 11 language in either § 1226(a) or § 1357(a)(2) that concerns the location of an arrest, let 12 alone commits the subject of where arrests may be conducted to DHS’s, ICE’s, and/or 13 CBP’s discretion.14 Moreover, defendants’ invocation of “agency discretion” is

14 particularly misleading because it presupposes that the State will lose on the merits of its 15 16 17 12 See supra note 8. 13 See supra note 9. 18 14 In contrast, 8 U.S.C. § 1357(a)(3) provides explicit guidance concerning the boundaries of an 19 immigration officer’s authority to conduct warrantless searches for aliens. The statute allows an agent “within a reasonable distance from any external boundary of the United States, to board 20 and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-file miles from any such 21 external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.” 8 U.S.C. § 1357(a)(3) (emphasis added). Section 1357(a)(3) illustrates how Congress defines a geographic scope of 22 authority when it intends to do so. 1 APA claim, which is premised on the theory that 8 U.S.C. §§ 1226(a) and 1357(a)(2) do 2 not grant discretion to conduct “courthouse arrests.” See New York, 2019 WL 6906274 at

3 *5. Defendants have not yet established such absence of merit in the State’s APA claim. 4 The APA’s exception for actions committed to agency discretion is “very narrow.” 5 See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971). The 6 exception applies in only “those rare instances” in which statutes are drawn “in such 7 broad terms that in a given case there is no law to apply.” Id. Neither § 1226(a) nor 8 § 1357(a)(2) satisfy this test. Indeed, if the State prevails on its argument that those two

9 provisions of the INA incorporate a pre-existing state and/or federal common-law 10 privilege against civil arrest while at or in transit to or from a courthouse, then “an 11 obvious standard against which to evaluate the agency’s exercise of discretion” would 12 exist. See New York, 2019 WL 6906274 at *5.15 This possibility belies defendants’ 13 assertion that the validity of their “courthouse arrest” policy is unreviewable.

14 Defendants cite Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 15 Bureau of Consular Affairs, 104 F.3d 1349 (D.C. Cir. 1997), for the proposition that 16 §§ 1226(a) and 1357(a)(2) “grant ICE broad discretion to determine the location of a civil 17 enforcement action against an alien present in the United States.” Defs.’ Resp. at 17 18 (docket no. 95). Defendants have misrepresented the holding of Legal Assistance. In

19 20 15 The New York Court further observed: “Even assuming arguendo that plaintiffs were wrong 21 on the merits of this [common-law privilege] argument, their contention satisfies their burden at this stage of the litigation to present a prima facie case for reviewability.” 2019 WL 6906274 at 22 *5 (emphasis in original, citing Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 1 Legal Assistance, the plaintiffs challenged as discriminatory, as well as arbitrary and 2 capricious, a State Department “consular venue” policy, which required that the visa

3 applications of certain Vietnamese and Laotian migrants be processed in their home 4 countries. See 104 F.3d at 1350. While the case was pending, the Illegal Immigration 5 Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) was enacted. Id. at 1351. 6 IIRIRA contained a provision that “entrusted to the discretion of the State Department” 7 consular venue determinations. Id. at 1351-53 (citing 8 U.S.C. § 1152(a)(1)(B)). The 8 Ninth Circuit held that the consular venue policy was not reviewable under the APA. See

9 id. at 1353. 10 Legal Assistance involved an entirely different provision (i.e., § 1152) of the INA 11 than the ones at issue in this matter (i.e., §§ 1226 & 1357). In addition, the language of 12 § 1152 (IIRIRA § 633) specifically reserved to the Secretary of State discretion regarding 13 where visa applications will be handled, while neither § 1126(a) nor § 1357(a)(2) refer to

14 the location of arrests or purport to impart unfettered discretion to DHS, ICE, and/or CBP 15 to conduct arrests at or near courthouses. Legal Assistance does not in any way support 16 defendants’ position. 17 Defendants also attempt to bring the “courthouse arrest” policy within the ambit of 18 the decisions by the Attorney General for which no judicial review is available, namely

19 the “Attorney General’s discretionary judgment regarding the application” of § 1226, and 20 “any action or decision by the Attorney General” under § 1226 regarding “the detention 21 or release of any alien or the grant, revocation, or denial of bond or parole.” See 8 U.S.C. 22 § 1226(e). Defendants’ analysis is fatally flawed. Section 1226(e), which insulates only 1 the Attorney General’s exercise of discretion, does not apply because the “courthouse 2 arrest” policy was not promulgated or executed by the Attorney General, but rather is an

3 invention of DHS (and/or its operational components, ICE and CBP), a separate agency 4 that is not part of the U.S. Department of Justice (“DOJ”). Notably, the State has not 5 named either the DOJ or United States Attorney General William Barr as defendants in 6 this action. The Court concludes that, contrary to defendants’ assertion, the “courthouse 7 arrest” policy did not arise from the unreviewable “exercise of prosecutorial discretion,” 8 see Defs.’ Mot. at 9 (docket no. 118), and defendants cannot seek refuge under § 1226(e).

9 3. Standing 10 Article III standing consists of (i) constitutional standing, and (ii) prudential 11 standing. See Ryan, 382 F. Supp. 3d at 152-55; see also Lexmark Int’l, Inc. v. Static 12 Control Components, Inc., 572 U.S. 118, 125-26 (2014). Defendants challenge both the 13 constitutional and prudential standing of the State of Washington to assert its APA

14 claims. With respect to the State’s right-of-access-to-court claim, defendants attack only 15 the State’s constitutional standing. 16 a. Constitutional Standing 17 To satisfy Article III’s “case or controversy” requirement, a plaintiff must have 18 (1) “suffered an injury in fact,” (2) “that is fairly traceable to the challenged conduct of

19 the defendant,” and (3) “that is likely to be redressed by a favorable judicial decision.” 20 See, e.g., Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). With respect to the APA 21 claims, defendants argue that the State does not having standing because (i) it is 22 complaining of injuries stemming from the “independent” decisions of third parties not to 1 appear for proceedings in state courts,16 and (ii) it is asserting the interests of such third 2 parties, as to whom the State “possesses no legitimate interest in protecting . . . from the

3 government of the United States,” see Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 4 253, 269 (4th Cir. 2011) (quoted in Defs.’ Mot. at 4 (docket no. 118)). In moving to 5 dismiss the right-of-access-to-court claim, defendants also question the State’s ability to 6 assert the harms suffered by prosecutors in moving their cases forward. 7 All of defendants’ contentions ignore the “special solicitude” owed to any state in 8 evaluating its standing. See Texas v. United States, 809 F.3d 134, 151 (5th Cir. 2015),

9 aff’d by an equally divided Court, 136 S. Ct. 2271 (2016). A state is entitled to such 10 “special solicitude” when its suit against a federal agency (1) involves the “proper 11 construction of a congressional statute,” (2) does not purport to “immunize [state] 12 citizens from federal law,” and (3) seeks to advance the state’s “‘quasi-sovereign’ 13 interests” by, for example, (i) questioning federal assertions of authority to regulate

14 matters alleged to be within the state’s control, (ii) denying federal preemption of state 15 law, or (iii) alleging federal interference with enforcement of state law. Id. at 151-53 16 (alteration in original, citing inter alia Massachusetts v. Envtl. Prot. Agency, 549 U.S. 17 497, 516-20 (2007), and Virginia ex rel. Cuccinelli, 656 F.3d at 270). 18 This litigation satisfies all of these criteria, and the State has “constitutional”

19 standing. The State presents claims requiring interpretation of both the INA and the 20

21 16 Contrary to defendants’ assertion, when victims, witnesses, or accused persons are civilly 22 arrested and held in custody, their subsequent absence from state court proceedings is quite the 1 APA, thereby raising questions “eminently suitable to resolution in federal court.” 2 Massachusetts, 549 U.S. at 516. Moreover, unlike in Virginia ex rel. Cuccinelli, on

3 which defendants rely,17 in this action, the State is not attempting to insulate Washington 4 residents from the proper application of the INA or any other federal law. Rather, the 5 State is asserting its own, rather than any third party’s, interest in expeditiously 6 prosecuting criminal matters,18 protecting the rights and safety of its residents, and 7

8 17 The Fourth Circuit’s holding that the Commonwealth of Virginia lacked standing to challenge the “individual mandate” of the Patient Protection and Affordable Care Act (“ACA”) provides 9 no support for defendants’ position. See 656 F.3d at 266-67. In Virginia ex rel. Cuccinelli, the Fourth Circuit observed that the “individual mandate,” which imposes a “penalty” on individual 10 taxpayers who fail to “maintain” adequate health insurance, did not “directly burden Virginia,” “commandeer Virginia’s enforcement officials,” or “threaten Virginia’s sovereign territory.” Id. 11 at 267-68. The Fourth Circuit further reasoned that the Virginia Health Care Freedom Act (“VHCFA”), signed by the Governor of Virginia the day after the ACA was enacted, which 12 “regulate[d] nothing,” administered “no state program,” and merely sought “to nullify federal law,” did not create the type of conflict between state and federal law that would confer standing on Virginia, but rather was “a smokescreen for Virginia’s attempted vindication of its citizens’ 13 interests.” Id. at 269-70 (emphasis in original). In this matter, the State of Washington does not rely on a similar “smokescreen.” Rather, the State alleges what the Commonwealth of Virginia 14 could not with respect to the ACA, namely that defendants’ challenged “courthouse arrest” policy (i) imposes direct burdens on the State, some of which are financial, see Delostrinos Decl. 15 at ¶¶ 13 & 17 (docket no. 20) (indicating that the Washington Supreme Court’s Minority & Justice Commission has spent over $18,000 in staff time and direct expenses addressing the issue 16 of increased federal immigration enforcement activity at or near state courthouses, diverting resources from other work of the Commission); Hedman Decl. at ¶ 10 (docket no. 27) (stating 17 that the Washington Defender’s Association has devoted almost 1,300 hours at a cost of over $92,000 in state and local funds to deal with the impact of the “courthouse arrest” policy), 18 (ii) commandeers state resources, and (iii) threatens the State’s areas of sovereignty, particularly its ability to effectively operate its courthouses and prosecute its criminal cases. 19 18 Although criminal matters are generally handled by elected county prosecutors and their deputies, every prosecution is brought on behalf of the State, and in the event of a conflict of 20 interest on the part of a county prosecutor, the Attorney General of the State of Washington will manage the case. See WASH. CONST. art. 4, § 27 (“The style of all process shall be, ‘The State of 21 Washington,’ and all prosecutions shall be conducted in its name and by its authority.”); see also State v. McCarthy, 178 Wn. App. 90, 103, 312 P.3d 1027 (2013) (affirming the disqualification 22 of a county prosecutor’s entire office, after which the case was prosecuted by the Office of the Attorney General); State v. Fisk, 151 Wn. 323, 326, 275 P. 940, 278 P. 156 (1929). 1 operating a fair, just, and orderly court system. Like their argument that the location of 2 civil arrests is committed to DHS’s, ICE’s, and/or CBP’s discretion, defendants’

3 contention that the State lacks constitutional standing improperly presupposes that the 4 State will not prevail on the merits of its legal theory that, with respect to civil arrests, its 5 courthouses are sacrosanct. The State is entitled, however, to have the merits of its 6 claims adjudged separately from its standing to assert the claims. 7 b. Prudential Standing 8 Defendants argue that the State lacks prudential standing to proceed on its APA

9 claims because “the interests it seeks to vindicate do not ‘fall within the zone of interest 10 protected by the law invoked.’” Defs.’ Mot. at 4 (docket no. 118). This contention 11 misconstrues the doctrines of prudential standing. In Lexmark, on which defendants rely, 12 Justice Scalia, writing for the majority, acknowledged that the term “prudential” standing 13 is a misnomer. 572 U.S. at 127. He characterized prudential standing as encompassing

14 three broad principles: (i) a general prohibition on a litigant raising another person’s 15 legal rights; (ii) a rule barring the adjudication of generalized grievances more 16 appropriately addressed in the representative branches of government; and (iii) a 17 requirement that a plaintiff’s claim fall within the “zone of interests” protected by the law 18 invoked. Id. at 126. Except as addressed in connection with constitutional standing,

19 defendants do not assert that the State’s APA claims fail under either the first or second 20 precepts of prudential standing; they raise only the third “zone of interests” hurdle. 21 The Lexmark Court clarified that the “zone of interests” test is one of two 22 components of an inquiry evaluating “statutory standing.” Id. at 128 n.4 & 129. The 1 other element of “statutory standing” is proximate causality. Id. at 129, 132-34. If both 2 of these standards are met, then the court has jurisdiction to adjudicate the case. See id. at

3 128 n.4. In evaluating “statutory standing,” the inquiry is whether the plaintiff has a 4 cause of action under the statute at issue. Id. at 128. In answering this question, the 5 Court must apply “traditional principles of statutory interpretation.” Id. In the context of 6 the APA, the “zone of interests” test is “not ‘especially demanding,’” and it forecloses a 7 suit only when a plaintiff’s interests are “so marginally related to or inconsistent with the 8 purposes implicit in the statute” that Congress cannot be reasonably understood to have

9 authorized such plaintiff to sue. Id. at 130. This lenient approach preserves “the 10 flexibility of the APA’s omnibus judicial-review provision, which permits suit for 11 violations of numerous statutes of varying character that do not themselves include 12 causes of action for judicial review.” Id. 13 In arguing that the State lacks standing because the INA does not provide the State

14 with any right of action, defendants ignore the fact that the State sues under the APA, not 15 the INA, and they fail to acknowledge the distinction drawn by the Lexmark Court 16 between the APA and other statutes.19 As recognized by the unanimous decision in 17 Lexmark, the APA provides an avenue of judicial review even when the statute pursuant 18

19 20 19 As support for their position, defendants cite to Immigration & Naturalization Serv. v. Legalization Assistance Project of L.A. Cty. Fed’n of Labor, 510 U.S. 1301 (1993), which is not an opinion on the merits by a majority of the Justices of the United States Supreme Court, 21 but is simply an order by Justice O’Connor granting a stay of a district court’s decision pending appeal to the Ninth Circuit. In her order, Justice O’Connor merely speculated about how the 22 relevant standing doctrines would later develop, and her predictions were not accurate. See Cook 1 to which a federal agency has acted or failed to act offers no such cause of action. Id. 2 To hold, as defendants propose, that DHS, ICE, and CBP may avoid judicial review

3 simply because the INA does not itself contemplate all the ways in which the agency or 4 its operational components might violate the statute would essentially elevate DHS to 5 “a fourth branch of government, with unfettered discretion not subject to any meaningful 6 review by any constitutional court.” New York, 2019 WL 6906274 at *4. 7 In bringing the APA claims at issue, the State advances interests that are much 8 more than “marginally related” to, and are entirely consistent with, the underlying

9 purposes of the INA. The INA reflects Congress’s “preference that federal immigration 10 enforcement not impede state criminal law enforcement.” Ryan, 382 F. Supp. 3d at 155 11 (citing 8 U.S.C. § 1231(a)(4)(A) (barring the Attorney General from removing “an alien 12 who is sentenced to imprisonment until the alien is released from imprisonment”)); see 13 also New York, 2019 WL 6906274 at *4 (citing 8 U.S.C. § 1101(a)(15)(U) (providing

14 immigration status to alien victims of crime who assist law enforcement)). The State’s 15 APA claims aim to confine defendants’ activities within the scope of authority granted to 16 them by the INA, and thereby foster the goals of the INA.20 Despite defendants’ efforts 17

18 20 Fed’n for Am. Immigration Reform, Inc. (“FAIR”) v. Reno, 93 F.3d 897 (D.C. Cir. 1996), on 19 which defendants rely is distinguishable. FAIR concerned the standing of an association whose members challenged the favorable treatment that other persons, namely certain Cuban nationals, 20 might receive, in the form of “parole” into the United States and an ability to apply for lawful permanent resident status. See 93 F.3d at 899-901. The District of Columbia Circuit concluded that FAIR’s members, who claimed they would be adversely affected by a “rush of immigrants,” 21 which might increase local unemployment, reduce wages, and place burdens on public services in the community, were not the intended beneficiaries of the INA provisions at issue. Id. at 900- 22 04. The State of Washington is not an association of individuals like FAIR, and it is not suing 1 to show otherwise, the State satisfies the “zone of interests” standard and has “statutory” 2 or “prudential” standing. See Texas, 809 F.3d at 152 (“the states are within the zone of

3 interests of the . . . INA”). Having concluded that the State has both “constitutional” and 4 “prudential” standing, the Court hereby DENIES defendants’ Rule 12(b)(1) motion to 5 dismiss this matter for lack of jurisdiction. 6 B. Well-Pleaded Claims 7 A complaint challenged by a Rule 12(b)(6) motion to dismiss need not provide 8 detailed factual allegations, but it must offer “more than labels and conclusions,” contain

9 more than a “formulaic recitation of the elements of a cause of action,” and indicate more 10 than mere speculation of a right to relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 11 555 (2007). In ruling on a motion to dismiss, the Court must assume the truth of the 12 plaintiff’s allegations and draw all reasonable inferences in the plaintiff’s favor. Usher v. 13 City of L.A., 828 F.2d 556, 561 (9th Cir. 1987). The question for the Court is not whether

14 the plaintiff has presented a prima facie case or is likely to prevail, but rather only 15 whether the facts in the complaint sufficiently state a “plausible” ground for relief. See 16 Twombly, 550 U.S. at 570. Under this standard, the State of Washington’s operative 17 pleading passes muster. 18

19 20 21

22 administrative agency on the grounds that such policy conflicts with the INA and is otherwise 1 1. Administrative Procedure Act 2 a. Exceeding Authority

3 With regard to the State’s APA claims that defendants’ “courthouse arrest” policy 4 exceeds their authority, defendants proffer three arguments: (i) the state common-law 5 privilege against “courthouse arrest” is “irrelevant” because federal law governs; (ii) any 6 federal common-law privilege is either extinct or “narrow,” applying to only service of 7 process in a private civil suit when the target has travelled across state lines for litigation 8 purposes; and (iii) any privilege against “courthouse arrest” was pre-empted by the INA.

9 Defendants’ arguments are more appropriately reserved for a motion pursuant to Federal 10 Rule of Civil Procedure 56. For purposes of ruling on defendants’ Rule 12(b)(6) motion, 11 the Court is satisfied the State has adequately alleged that state and/or federal common- 12 law privileges against “courthouse arrest” existed at the time the INA was enacted, that 13 Congress did not abrogate the privilege or privileges when it passed the INA,21 and that,

14 in issuing their “courthouse arrest” policy, defendants exceeded the authority delegated to 15 them in the INA. See New York, 2019 WL 6906274 at *8-11; Ryan, 382 F. Supp. 3d at 16 17 18

19 21 Defendants’ contention that the privilege developed under state law is “irrelevant” or, at least, not incorporated into the INA via legislative silence misses the crux of the State’s related APA 20 claim, which is premised on the doctrine that federal statutes must be interpreted to maintain “the usual constitutional balance” between the states and the federal government unless a contrary purpose is expressed in “unmistakably clear” statutory language. See New York, 2019 21 WL 6906274 at *10 (quoting Gregory, 501 U.S. at 460); see also Ryan, 382 F. Supp. 3d at 157 (quoting United States v. Texas, 507 U.S. 529, 534 (1993) (quoting Isbrandtsen Co. v. Johnson, 22 343 U.S. 779, 783 (1952))). Defendants have not identified any provision of the INA indicating 1 157-59. The State has done all that is necessary at this stage of the litigation, namely to 2 set forth a “plausible” claim for relief under § 706(2)(C) of the APA.

3 b. Arbitrary or Capricious 4 Defendants expended little effort in seeking to dismiss the State’s claim under 5 § 706(2)(A) of the APA. In the two paragraphs contained in their motion, defendants 6 stated in conclusory fashion that their “courthouse arrest” policy is “not an unexplained 7 departure from past practice,” that Directive No. 11072.1 is essentially self-explanatory, 8 and that the Directive and its predecessors reflect “consideration of the consequences” of

9 “courthouse arrests” on “state courts, victims, witnesses, and family members of target 10 aliens.” Defs.’ Mot. at 16 (docket no. 118). These bald assertions22 do not support 11 dismissal of the State’s APA claim alleging that defendants’ “courthouse arrest” policy is 12 the product of arbitrary or capricious agency action. 13 The scope of review under § 706(2)(A) is narrow, and the Court must refrain from

14 substituting its judgment for that of the agency. Motor Vehicle Mfrs. Ass’n of U.S., Inc. 15 v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) [hereinafter “MVMA”]. 16 Nevertheless, in responding to an “arbitrary or capricious” challenge, an agency must 17

18 22 Defendants’ motion does not even mention, let alone offer a reason to dismiss, two of the 19 State’s five accusations, namely that the “courthouse arrest” policy is incompatible with federal laws “requiring certain non-citizens to appear in state courts to qualify for immigration relief,” 20 and that defendants have not made clear exactly who are the targets of their “courthouse arrest” policy. See Compl. at ¶ 122 (docket no. 1); see also supra pages 10-12 (comparing the wording of Directive No. 11072.1, which applies “inside” courthouses, with ICE’s and CBP’s activities, 21 which have occurred “near,” but “outside” courthouses, leaving the criteria for targeting an alien for “courthouse arrest” uncertain). Thus, these grounds for challenging the “courthouse arrest” 22 policy under § 706(2)(A) of the APA would remain in the case even if defendants prevailed on 1 articulate “a satisfactory explanation for its action including a ‘rational connection 2 between the facts found and the choice made.’” Id. Agency action may be deemed

3 “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” 4 when (i) the agency has relied on factors that Congress did not intend for it to consider, 5 (ii) the record contradicts the agency’s conclusion, (iii) the agency’s rationale is “so 6 implausible that it could not be ascribed to a difference in view or the product of agency 7 expertise,” or (iv) the agency has inexplicably acted inconsistently with its prior 8 decisions. See id.; Organized Vill. of Kake v. U.S. Dep’t of Agric. [hereinafter “Kake”],

9 795 F.3d 956, 966 (9th Cir. 2015) (en banc); Saget v. Trump, 345 F. Supp. 3d 287, 298 10 (E.D.N.Y. 2018). An agency may not “depart from a prior policy sub silentio or simply 11 disregard rules that are still on the books.” Saget, 345 F. Supp. 3d at 298 (quoting Fox, 12 556 U.S. at 515). Rather, in altering course, the agency must display an awareness that it 13 is changing its position and show that good reasons support the new policy. Fox, 556

14 U.S. at 515. 15 The State has pleaded a “plausible” claim that defendants’ “courthouse arrest” 16 policy cannot survive scrutiny under the standards articulated in Fox, MVMA, and Kake. 17 See Twombly, 550 U.S. at 570. Defendants’ contention that their “courthouse arrest” 18 policy is “not an unexplained departure” from prior practices is undermined by their own

19 position that Directive No. 11072.1 applies only to arrests “inside” courthouses, while 20 defendants have engaged in arrests “near” courthouses, in violation of prior guidance that 21 apparently remains in effect. Moreover, to the extent Directive No. 11072.1 charts a new 22 course with respect to “courthouse arrests,” it does not reflect the requisite awareness of 1 such change, having failed to reference, let alone supersede, prior policies. Whether, in 2 light of the yet-to-be-filed administrative record, the State can sustain its allegation that

3 the “courthouse arrest” policy improperly departed sub silentio from prior practices is a 4 question for another day. 5 Likewise, the merits of the State’s attack on the explanations given for defendants’ 6 “courthouse arrest” policy are not now appropriately before the Court. Defendants assert 7 that their “courthouse arrest” policy was necessitated by the “unwillingness” of various 8 jurisdictions, including the State of Washington, to “cooperate with ICE in the transfer of

9 custody of aliens from their prisons and jails.” Directive No. 11072.1, Ex. Q to Melody 10 Decl. (docket no. 7-17). Defendants, however, cite no authority for the proposition that 11 such retaliatory motive constitutes a factor that Congress intended for them to consider or 12 that such motive would survive constitutional scrutiny. In addition, in a report submitted 13 by the State, the University of Washington’s Center for Human Rights (“UWCHR”)

14 suggests that, “[f]ar from being a response to the limitations imposed by so-called 15 ‘sanctuary’ provisions,” arrests in or near courthouses occur more frequently in 16 Washington counties where “local authorities collaborate most with federal immigration 17 enforcement.” See Ex. A to Godoy Decl. (docket no. 23-1 at 13) (emphasis in original).23 18

19 23 Of the 48 “courthouse arrests” catalogued by UWCHR from sources other than DHS, which 20 occurred during the Trump Administration, 27 or 56.25% took place in three Washington counties, namely Adams, Clark, and Grant, which are not “sanctuary” areas for undocumented immigrants. See Ex. A to Godoy Decl. (docket no. 23-1 at 14-16). Although the State cited to 21 the UWCHR report in its pleading, see Compl. at ¶ 52 (docket no. 1), it did not highlight these findings. The Court has relied on this material only to reach the conclusion that whether 22 “courthouse arrests” actually correlate with local “sanctuary” efforts is a question of fact not 1 Defendants also contend that “courthouse arrests” promote safety because “[i]ndividuals 2 entering courthouses are typically screened by law enforcement personnel to search for

3 weapons and other contraband,” see Defs.’ Reply at 9 (docket no. 128) (quoting Directive 4 No. 11072.1), but their reasoning does not extend to arrests conducted (i) by agents in 5 plain clothes whose actions might be misinterpreted, or (ii) in the vicinity (i.e., outside) of 6 courthouses, where any weapons ban would have no effect. Contrary to defendants’ 7 arguments, the State has pleaded a “plausible” claim that defendants’ “courthouse arrest” 8 policy is arbitrary or capricious.

9 2. Tenth Amendment 10 Defendants move to dismiss the State’s claim under the Tenth Amendment on the 11 ground that the “courthouse arrest” policy does not compel the State to act or refrain from 12 acting. In making this argument, defendants rely exclusively on “anticommandeering” 13 jurisprudence, which prevents Congress from issuing orders directly to the states or their

14 officers. See Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1475-76 (2018); 15 Printz v. United States, 521 U.S. 898, 935 (1997). Defendants cite no authority 16 interpreting the Tenth Amendment in the context of a policy issued by a federal 17 administrative agency, as opposed to Congress or another branch of government. In 18 referring to the various anticommandeering cases, defendants appear to suggest that

19 Congress is not otherwise restricted from encroaching on states’ rights, a proposition 20 fully contradicted by the Constitution itself, see Murphy, 138 S. Ct. at 1476 (observing 21 22 1 that Congress has “only certain enumerated powers”),24 and they seemingly fail to 2 appreciate that, while they have been delegated certain authority by Congress, they are

3 not Congress and cannot invoke legal doctrines applicable to Congress. 4 The Court recognizes that the State uses the term “commandeer” in summarizing 5 its Tenth Amendment claim, but the State also alleges that the “courthouse arrest” policy 6 “unduly interferes with Washington’s core sovereign judicial and police functions” in 7 violation of the rights reserved to it by the Constitution. See Compl. at ¶ 127 (docket 8 no. 1). The facts pleaded in the State’s complaint lend support to this contention, and the

9 Court concludes that, regardless of whether state courthouses, judges, or officials have 10 been “commandeered,” the State is entitled to proceed forward on its Tenth Amendment 11 claim. Cf. New York, 2019 WL 6906274 at *12 (ruling that the State of New York had 12 alleged the “type of commandeering similar to those that the Supreme Court has found to 13 lie at the heart of a Tenth Amendment cause of action”).

14 3. Right of Access to Court 15 Right-of-access-to-court claims generally fall into two categories: (i) “forward- 16 looking” claims asserting that “systemic official action frustrates a plaintiff or plaintiff 17 class in preparing and filing suits at the present time,” and (ii) “backward-looking” claims 18

19 24 See also Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 550-56 (1985) (federal law that impacts a state’s “residuary and inviolable sovereignty” must be examined in light of the 20 “procedural safeguards inherent in the structure of the federal system,” recognizing that the states occupy “a special and specific position,” which the limited scope of Congress’s authority must 21 reflect (quoting THE FEDERALIST No. 39, at 285 (James Madison) (B. Wright ed., 1961))); New York v. United States, 505 U.S. 144, 187 (1992) (“[T]he Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government 22 precisely so that we may resist the temptation to concentrate power in one location as an 1 alleging that “specific cases . . . cannot now be tried (or tried with all material evidence)” 2 regardless of any future official action. See Christopher v. Harbury, 536 U.S. 403, 413-

3 14 (2002). A forward-looking claim seeks to remove an obstacle to the desired litigation, 4 while a backward-looking claim focuses on a time when, as a result of some impediment, 5 a case ended poorly, was not commenced, or could have produced a remedy that is now 6 unobtainable. Id. 7 The State raises only a forward-looking claim.25 See Pla.’s Resp. at 22 (docket 8 no. 127). Defendants offer three grounds for dismissing the State’s claim: (i) the State

9 may not assert First Amendment and Sixth Amendment claims on behalf of aliens who 10 are not lawfully present in the United States; (ii) the “courthouse arrest” policy does not 11 violate aliens’ rights of access to the courts; and (iii) the State’s inability to procure 12 witnesses for its criminal prosecutions is not a constitutional injury. 13 Defendants’ first set of arguments extend the cited authorities far beyond their

14 intended bounds. Defendants rely on United States v. Verdugo-Urquidez, 494 U.S. 259 15 (1990), for the proposition that the First Amendment right to petition the government for 16 a redress of grievances does not apply to unlawfully present aliens. Verdugo-Urquidez 17 does not so hold. The issue in Vergudo-Urquidez was whether the Fourth Amendment 18 protected against a warrantless search of property located in Mexico and owned by a

19 nonresident alien. Id. at 261-62. The case did not involve the right of access to the 20

21 25 Thus, the Court need not address defendants’ argument that the State’s operative pleading 22 does not satisfy the standards applicable to backward-looking claims, which are set forth in 1 courts, and defendants’ extrapolation is improper. Moreover, in interpreting the phrase 2 “the people,” which appears in both the First and Fourth Amendments, as referring to “a

3 class of persons who are part of a national community or who have otherwise developed 4 sufficient connection with this country to be considered part of that community,” the 5 Verdugo-Urquidez Court did not preclude unlawfully present aliens from asserting rights 6 secured by the First Amendment. Id. at 265. 7 Defendants also misconstrue United States v. Sabatino, 943 F.2d 94 (1st Cir. 8 1991). In Sabatino, a husband and wife were convicted of federal offenses in connection

9 with the operation of an escort service. Id. at 95. On direct appeal, the wife asserted that 10 she had been prejudiced by the incompetent performance of her husband’s trial attorney. 11 Id. at 96 n.1. The First Circuit rejected the wife’s argument because she could not assert 12 her husband’s Sixth Amendment right to counsel and because her husband’s lawyer’s 13 behavior (i.e., informing the jury about the contents of certain prosecution witnesses’ plea

14 agreements) did not constitute error. Id. Sabatino says nothing about the right of access 15 to the courts, and does not support defendants’ assertion that the State may not bring a 16 claim under the Sixth Amendment. 17 Defendants’ second group of contentions concerning why the “courthouse arrest” 18 policy does not violate aliens’ rights of access to the courts are unpersuasive. Defendants

19 assert that aliens have no right to evade arrest, and that a person’s “voluntary” decision 20 not to appear for court to avoid arrest is not protected by the Sixth Amendment, but these 21 arguments are circular; the question is not whether aliens can elude arrest, but rather 22 whether aliens have a right to come and go from state courthouses without fear of arrest. 1 Defendants also accuse the State of failing to provide evidence that defendants have acted 2 with the goal of preventing the State or individuals from filing suit, but in doing so,

3 defendants have put the proverbial cart before the horse; the State has pleaded its claim, 4 and a Rule 12(b)(6) motion does not force it to present any evidence. Defendants’ 5 argument that Congress can or has displaced the State’s authority to prosecute criminal 6 matters and/or control its courthouses is repetitive of assertions made elsewhere, see 7 supra pages 12-15 & note 21, and the Court reaches the same conclusion here, namely 8 that defendants have not made the requisite showing to invoke the Supremacy Clause.

9 In advancing their final basis for seeking dismissal of the State’s right-of-access- 10 to-court claim, defendants again refer to a case way out of context. Defendants quote 11 from United States v. Valenzuela-Bernal, 458 U.S. 858 (1982), in which the Supreme 12 Court observed: 13 The mere fact that the Government deports such [illegal-alien] witnesses is not sufficient to establish a violation of the Compulsory Process Clause of 14 the Sixth Amendment or the Due Process Clause of the Fifth Amendment. A violation of these provisions requires some showing that the evidence 15 lost would be both material and favorable to the defense. 16 Id. at 872-73. Valenzuela-Bernal does not concern the right of access to the courts. In 17 addition, it does not involve a state’s ability to prosecute a criminal matter, but rather a 18 defendant’s right to “secure the attendance and testimony” of “witnesses in his favor.” 19 Id. at 867 (emphasis in original). Finally, contrary to defendants’ assertion, Valenzuela- 20 Bernal does not suggest that the unavailability of prosecution witnesses resulting from 21 fear of or actual civil arrest cannot, as a matter of law, constitute a constitutional harm; 22 rather, the case would merely require a showing that the lost evidence is material and 1 favorable to the State. For purposes of defendants’ Rule 12(b)(6) motion, the Court 2 presumes the State can meet this standard by averring that it cannot proceed to trial in the

3 absence of the victim and/or a witness to the crime. The State has pleaded a “plausible” 4 right-of-access-to-court claim. 5 Conclusion 6 For the foregoing reasons, the Court ORDERS: 7 (1) Defendants’ motion to dismiss, docket no. 118, is DENIED. 8 (2) Defendants’ related motion to stay discovery, docket no. 120, pending the

9 Court’s ruling on defendants’ motion to dismiss, is STRICKEN as moot. 10 (3) Defendants are DIRECTED to file the administrative record in this matter 11 within sixty (60) days of the date of this Order. 12 (4) The Clerk is directed to send a copy of this Order to all counsel of record. 13 IT IS SO ORDERED.

14 Dated this 10th day of April, 2020. A 15

16 Thomas S. Zilly 17 United States District Judge

18 19 20 21 22