Woodward v. United States Customs and Border Protection

• Court: District Court, D. Arizona
• Decided: February 1, 2022
• Docket: 4:20-cv-00151
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Bruce Alan Woodward, No. CV-20-00151-TUC-DCB

10 Plaintiff, ORDER

11 v.

12 United States Customs and Border Protection, et al., 13 Defendants. 14 15 The Court denies the Plaintiff’s Motion for Summary Judgment and grants the 16 Defendant’s Motion for Summary Judgment. 17 Background 18 The Plaintiff proceeds pro se. He alleges that Defendants, Custom and Border 19 Protection (CBP), arbitrarily and capriciously terminated his SENTRI (Secure Electronic 20 Network for Travelers Rapid Inspection) Trusted Traveler program pass. 21 It is undisputed that in 2015, the Plaintiff obtained a SENTRI pass to cross the 22 Mexico-United States border in an express travel lane. On September 7, 2019, the Plaintiff 23 entered the express lane at the DeConcini Port of Entry, where CBP Officer Amy Rogers 24 was stationed. She asked a few questions and then asked the Plaintiff to open his trunk. 25 When Plaintiff turned off his car and started to get out of his car to open the trunk for her, 26 she decided to, and did, refer him to the secondary inspection area. According to Agent 27 Rogers, the Plaintiff’s answers to her questions were argumentative and she felt threatened 28 when he opened the door into her while she was standing within a confined area next to his 1 car. The Plaintiff submits that the car was not equipped with a mechanism to pop the trunk, 2 and he had to get out to open it. Regardless of disputed facts, described by the Plaintiff as 3 creating “he said, she said,” issues, it is undisputed that Agent Rogers reported the referral 4 to secondary to her Supervisory, Agent Steger. 5 In secondary, CBP Agent Steger “lifted,” Plaintiff’s pass, which served to 6 temporarily revoke it, until Plaintiff could meet with someone in the SENTRI office for an 7 ultimate determination regarding revocation. This occurred on September 30, 2019, when 8 Plaintiff met with Supervisor Armendariz, who revoked the pass permanently. It is 9 undisputed that the Plaintiff had had a prior incident in 2017 when he drove a vehicle 10 through the SENTRI express lane that had a license plate different from his approved 11 vehicle plate. The Defendants assert that in both instances, the Plaintiff was argumentative 12 and/or aggressive with officers. Again, the Plaintiff contests the Defendants’ description 13 of him as being argumentative. 14 The Plaintiff complains that he was never given a specific explanation for the 15 revocation of his SENTRI pass and was only given a boilerplate excuse of “does not meet 16 the criteria for membership.” (P MSJ (Doc. 28) at 2.) 17 There is no constitutionally protected right to a SENTRI pass. 8 C.F.R. § 235.7(c) 18 (no private right of action, substantive or procedural). Federal courts are courts of limited 19 jurisdiction and may only adjudicate those cases over which they have subject matter 20 jurisdiction: basically, those cases involving diversity of citizenship or a federal question. 21 Kikkonen v. Guardian Life Ins. co. of America, 511 U.S. 375 (1994). Where there is neither 22 diversity nor a constitutional violation of an individual's rights, this Court has no 23 jurisdiction. 24 Here, there is federal question jurisdiction over the controversy between Plaintiff 25 and CBP under the Administrative Procedures Act (APA), which grants this Court review 26 over agency actions, which may be set aside if they are arbitrary and capricious. 5 U.S.C. 27 § 706(2)(A). Agency action is not, however, subject to review if it is an action committed 28 to agency discretion by law. 5 U.S.C. § 701(a)(2). An agency decision is committed to 1 agency discretion by law when the relevant statute “is drawn so that a court would have no 2 meaningful standard against which to judge the agency’s exercise of discretion.” Heckler 3 v. Chaney, 470 U.S. 821, 830 (1985). The logic for excluding discretionary actions from 4 judicial review is because when there are no judicially manageable standards available for 5 judging how and when an agency should exercise its discretion, then it is impossible to 6 evaluate agency action for an abuse of discretion. Id. 7 The Plaintiff submits: “The question before the court is fundamentally simple: was 8 the 2019 action of revoking the Plaintiff’s membership in the SENTRI program arbitrary 9 and Capricious?” He submits evidence of arbitrariness and capriciousness as follows: the 10 termination was based on a boilerplate explanation and failed to identify any specific 11 reason for the revocation, including the questionable after-the-fact excuses now offered by 12 the Defendant that he was argumentative and refused to open the trunk. Both are arbitrary 13 and capricious reasons for revocation because he was not argumentative and his car is 14 manufactured so that the trunk cannot be popped from inside the car and must be opened 15 without using the key. Agent Steger decided to “lift” the pass even before talking to him in 16 secondary, and Agent Armendariz did the same, telling him the revocation was permanent 17 before they discussed the matter. Finally, the Plaintiff argues that the Defendant’s 18 revocation argument is essentially “because I said so” and “because we can,” which is an 19 abuse of discretion because there is no relationship between the revocation and the 20 PORTPASS program. The question before the Court is not so simply answered. First, the 21 Court must determine that the revocation decision is the type of agency action that is 22 subject to judicial review under the APA. Because the Court finds that it is not, the Court 23 does not reach the merits of Plaintiff’s arbitrary and capricious arguments. 24 Administrative Procedures Act (APA) 25 The APA establishes a “basic presumption of judicial review [for] one ‘suffering 26 legal wrong because of agency action.’” Dep't of Homeland Sec. v. Regents of the Univ. of 27 California, 140 S. Ct. 1891, 1905 (2020) ((quoting Abbott Laboratories v. Gardner, 387 28 U.S. 136, 140 (1967) (quoting § 702)). Therefore, the exception of discretionary actions 1 from judicial review is applied “quite narrowly.” Id. The discretion granted to the agency 2 must be complete and unfettered, ASSE Int'l, Inc. v. Kerry, 803 F.3d 1059, 1069 (9th Cir. 3 2015), and “such a situation only occurs in ‘rare instances.’” Spencer Enters., Inc. v. United 4 States, 345 F.3d 683, 688(9th Cir. 2003) (quoting Heckler, 470 U.S. at 830). “Even where 5 statutory language grants an agency ‘unfettered discretion,’ [the agency's] decision may 6 nonetheless be reviewed if regulations or agency practice provide a ‘meaningful standard 7 by which th[e] court may review its exercise of discretion.’” Id. at 688 (quoting Socop– 8 Gonzalez v. INS, 208 F.3d 838, 844 (9th Cir.2000)). Therefore, there is jurisdiction to 9 review allegations that an agency has abused its discretion by exceeding its legal authority 10 or by failing to comply with its own regulations. Abdelhamid v. Ilchert, 774 F.2d 1447, 11 1450 (9th Cir.1985). 12 The relevant statute is 8 U.S.C. 1365b(k), which instructs the Department of 13 Homeland Security (DHS) to “establish an international registered traveler program” 14 designed to “expedite the screening and processing of international travelers” participating 15 in the program to “ensure that the international registered traveler program includes as 16 many participants as practicably by (i) establishing a reasonable cost of enrollment; (ii) 17 making program enrollment convenient and easily accessible; and (iii) providing applicants 18 with clear and consistent eligibility guidelines.” 8 U.S.C. 1365b(k)(3)(E ).1

19 1“The Secretary of Homeland Security shall establish rules, guidelines, policies, and operating and auditing procedures for collecting, removing, and updating data maintained 20 in, and adding information to, the entry and exit data system that ensure the accuracy and integrity of the data." 8 U.S.C. 1365b(f)(1)(A). The only requirements declared by 21 Congress are: “The rules, guidelines, policies, and procedures established under this subsection shall—(A) incorporate a simple and timely method for--(i) correcting errors in 22 a timely and effective manner; (ii) determining which government officer provided data so that the accuracy of the data can be ascertained; and (iii) clarifying information known to 23 cause false hits or misidentification errors; (B) include procedures for individuals to--(i) seek corrections of data contained in the databases or data systems; and (ii) appeal 24 decisions concerning data contained in the databases or data systems; (C) strictly limit the agency personnel authorized to enter data into the system; (D) identify classes of 25 information to be designated as temporary or permanent entries, with corresponding expiration dates for temporary entries; and (E) identify classes of prejudicial information 26 requiring additional authority of supervisory personnel before entry.

27 8 U.S.C. 1365(b(f)(4).

28 Additionally, there shall be a clearinghouse bureau in DHS to centralize and streamline (5) Centralizing and streamlining correction process the process through which 1 The statute “indicates that Congress committed to the [agency] the sole discretion 2 to determine eligibility guidelines and evaluate applicants.” Roberts v. Napolitano, 792 3 F.Supp 2d 67, 73-74 (D.D.C 2011). The only other court to consider the question of judicial 4 review for agency decisions made under 8 U.S.C. 1365b(k) besides Roberts was in the 10th 5 Circuit. In McLean v. Morgan, 2020 WL 5094683 (Kans. Aug. 28, 2020), the district court 6 found the regulations, 8 C.F.R. 235.12, for the Global Entry program set forth eligibility 7 guidelines sufficient for the Court to review an agency decision denying the plaintiff’s 8 application. The relevant regulations, here, are 8 C.F.R. § 235.7 for SENTRI, a PORTPASS 9 program. 10 The PORTPASS program is a system designed for certain ports-of-entry, which 11 have been identified and designated by the DHS as providing access to the United States 12 for “a group of identified, low-risk, border crossers.” 8 C.F.R. § 235.7(a)(1)(i). In large 13 part it provides an entry program for such aliens, and United States citizens. Id. 14 The DHS eligibility rules relevant to the Plaintiff, who is a United States citizen, 15 require citizenship, 8 C.F.R. § 235.7(a)(3), and “[c]riteria which will be considered in the 16 decision to approve or deny the application, including the following: admissibility to the 17 United States and documentation so evidencing, criminal history and/or evidence of 18 criminality, purpose of travel, employment, residency, prior immigration history,

19 members of the public can seek corrections to erroneous or inaccurate information contained in agency databases, which is related to immigration status, or which otherwise 20 impedes lawful admission to the United States. 8 U.S.C. 1365b(g)(A).

21 The statute provides entry-exit system goals as follows: “The Department of Homeland Security shall operate the biometric entry and exit system so that it-- (1) serves 22 as a vital counterterrorism tool; (2) screens travelers efficiently and in a welcoming manner; (3) provides inspectors and related personnel with adequate real-time information; 23 (4) ensures flexibility of training and security protocols to most effectively comply with security mandates; (5) integrates relevant databases and plans for database modifications 24 to address volume increase and database usage; and (6) improves database search capacities by utilizing language algorithms to detect alternate names.” 8 U.S.C. 1365b(h). 25 In implementing subsections g and h, DHS specialists and front-line personnel shall- 26 -“(1) develop cross-training programs that focus on the scope and procedures of the entry and exit data system; (2) provide extensive community outreach and education on the entry 27 and exit data system's procedures; (3) provide clear and consistent eligibility guidelines for applicants in low-risk traveler programs; and (4) establish ongoing training modules on 28 immigration law to improve adjudications at our ports of entry, consulates, and embassies.” 8 U.S.C.A. § 1365b(i). 1 possession of current driver's license, vehicle insurance and registration, and vehicle 2 inspection,” 8 C.F.R. § 235.7(a)(4)(x). Eligibility also depends on payment of a fee, id. at 3 (v), and is vehicle specific. id. at (viii). 4 “An application may be denied in the discretion of the district director having 5 jurisdiction over the POE where the applicant requests access. Notice of such denial shall 6 be given to the applicant. There is no appeal from the denial, but denial is without prejudice 7 to reapplying for this or any other Service benefit. Re-applications, or applications 8 following revocation of permission to use the lane, will not be considered by the Service 9 until 90 days have passed following the date of denial or revocation.” 8 C.F.R. § 10 235.7(a)(4)(x). 11 “The number of persons and vehicles which can use a DCL [Dedicated Commuter 12 Lane] is limited numerically by the technology of the station. For this reason, distribution 13 of applications at each POE [Port of Entry] may be limited.” 8 C.F.R. § 235.7(a)(4)(iii). 14 “By applying for and participating in the PORTPASS program, each approved 15 participant acknowledges and agrees to all of the following:” (i) use of the vehicle approved 16 for use in the PORTPASS program; payment of a system-cost fee; that each occupant of a 17 vehicle applying for entry has current approval for entry through PORTPASS; he or she 18 possesses authorization documents; “that a participant must positively identify himself or 19 herself in the manner prescribed by the Service at the time of each application for entry 20 via the PORTPASS; each use of PORTPASS constitutes separate application for entry; to 21 be responsible for the contents of the vehicle; to not import or transport controlled or 22 restricted items; to abide by all Federal, state and local laws for importation of alcohol or 23 agricultural products; “to be subject to random checks or inspections that may be conducted 24 by the Service at any time and at any location, to ensure compliance”; to have a current 25 vehicle registration; to notify the Service if an approved vehicle is sold, stolen, or otherwise 26 disposed of, and to use only the approved POE and otherwise to present themselves for 27 inspection or examination. 8 C.F.R. § 235.7(a)(5)(i)-(xiii). 28 1 “A PORTPASS program participant who violates any condition of the PORTPASS 2 program, . . . a law or regulation of the United States Custom Service or law or regulation 3 or other Federal Inspection Service or who is otherwise determined by an immigration 4 officer to be ineligible to participate in PORTPASS, may have the PORTPASS access 5 revoked at the discretion of the district director or the chief patrol agent and may be subject 6 to other applicable sanctions, . . . .” 8 C.F.R. § 235.7(b). 7 As for judicial review, the regulation expressly states: “Nothing in this section is 8 intended to create any right or benefit, substantive or procedural, enforceable in law or 9 equity by a party against the Department of Justice, the Immigration and Naturalization 10 Service, their officers or employees of the Department of Justice.” 8 C.F.R. §235.7(c). 11 Not only do the regulations clearly establish that there is no private right of action 12 against the CBP, they are clear that in determining eligibility, including revoking it, the 13 matter is solely up to the discretion of the Service. The only “meaningful standards for 14 review contained in the regulation apply to the guidelines DHS was charged with 15 developing, not the evaluation of applicants for PORTPASS access. This is an important 16 distinction because the eligibility/revocation decision challenged by the Plaintiff is that the 17 Plaintiff may no longer use the Dedicated Commuter Lane (DCL), the express-lane, when 18 crossing the Mexico-United States border at the DeConcini Port of Entry. 19 Importantly, the APA’s “basic presumption of judicial review [protects] one 20 ‘suffering legal wrong because of agency action.’” Dep't of Homeland Sec. v. Regents of 21 the Univ. of California, 140 S. Ct. at 1905 ((quoting Abbott Laboratories, 387 U.S. at 140 22 (quoting § 702)). This presumption only applies to final agency actions. 5 U.S.C. § 704. 23 For an agency action to be considered “final,” it must (i) “mark the ‘consummation’ of the 24 agency's decisionmaking process ... [and] not be of a merely tentative or interlocutory 25 nature,” and (ii) be an action “by which ‘rights or obligations have been determined,’ or 26 from which ‘legal consequences will flow.’” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) 27 (holding that a biological opinion constituted final agency action). 28 1 Here, it is undisputed that the decision to revoke the Plaintiff’s PORTPASS access 2 marked the consummation of the agency's decisionmaking process. The Plaintiff, however, 3 fails to satisfy the second prong to obtain judicial review under the APA because the 4 “action must be one by which rights or obligations have been determined, or from which 5 legal consequences will flow.” United States Army Corp. of Engineers v. Hawkes Co., 578 6 U.S. 590, 596 (2016) (quoting Bennett, 520 U.S. at 177–78)); National Urban League v. 7 Ross, 977 F.2d 770, 776 (9th Cir. 2020) (relying on Bennett, 520 U.S. at 178 (legal 8 consequences, in particular, must be “direct and appreciable.”) 9 Not being able to pass through the (DCL), the express-lane, at the DeConcini Port 10 of Entry does not preclude the Plaintiff’s entry into the United States or his entering at the 11 DeConcini Port of Entry. There are simply no rights or obligations, or legal consequences 12 flowing from this agency action. See Parsons v. United States Dep't of Justice, 878 F.3d 13 162, 167–68 (6th Cir. 2017) (relying on see Berry v. United States Dept. of Labor, 832 14 F.3d 627, 633 (6th Cir. 2016) (challenging Department of Labor's (DOL) refusal to reopen 15 claim for workers' compensation benefits under Energy Employees Occupational Illness 16 Compensation Program Act (EEOICPA) based on new evidence as final decision; DOL's 17 decision had a sufficiently direct and immediate impact on petitioner and caused legal 18 consequences because it determined his ineligibility for compensation) (relying on Abbott 19 Labs., 387 U.S. at 152) (agency action “must have a ‘sufficiently direct and immediate’ 20 impact on the aggrieved party and a ‘direct effect on [its] day-to-day business.’”) 21 For example, agency actions that expose an individual to criminal or civil liability 22 cause legal consequences. See, e.g., Sackett v. Envtl. Prot. Agency, 566 U.S. 120, 126 23 (2012) (finding that legal consequences flowed from the issuance of an EPA order because 24 it exposed appellants to double penalties in future enforcement proceedings and severely 25 limited their ability to obtain a fill permit); Louisiana v. U.S. Army Corps of Engr'rs, 834 26 F.3d 574, 583 (5th Cir. 2016) (“Judicially reviewable agency actions normally affect a 27 regulated party's possible legal liability; these consequences tend to expose parties to civil 28 or criminal liability for non-compliance with the agency's view of the law or offer a shelter 1 from liability if the regulated party complies.” (citations omitted)). See also Flue-Cured 2 Tobacco Coop. Stabilization Corp. v. U.S. Envtl. Prot. Agency, 313 F.3d 852, 860 (4th Cir. 3 2002) (harms caused by agency decisions are not legal consequences if they “stem from 4 independent actions taken by third parties.”); Jama v. Dept. of Homeland Security, 760 5 F.3d 490, 496 (6th Cir. 2016) (“An agency action is not final if it ‘does not of itself adversely 6 affect complainant but only affects his rights adversely on the contingency of future 7 administrative action.’” (quoting Rochester Tel. Corp. v. United States, 307 U.S. 125, 130, 8 (1939)). 9 The worst direct and appreciable impact on the aggrieved party, the Plaintiff, from 10 the revocation decision is that his border crossings at the DeConcini Port of Entry are 11 slower without the SENTRI pass for 90 days. Thereafter, he may reapply, without prejudice 12 from the prior revocation at issue here. The decision to revoke the Plaintiff’s eligibility for 13 the PORTPASS access program is simply not the type of final agency action subject to 14 review under the APA. Compare Dep't of Homeland Sec. v. Regents of the Univ. of 15 California, 140 S. Ct. at 1906 (finding review under APA, reasoning DACA is not simply 16 a passive non-enforcement policy because it created a program for conferring affirmative 17 immigration relief; creation of that program—and its rescission—is an “action [that] 18 provides a focus for judicial review.”) 19 Even if the decision to revoke Plaintiff’s PORTPASS access was a final decision as 20 defined under the APA, with the attendant presumption of reviewability, the Court finds 21 the presumption is rebutted by the statute and regulation which commit the action of 22 revoking PORTPASS access to the Defendant agency's discretion. The Court applies this 23 exception to reviewability narrowly, Dep't of Homeland Sec. v. Regents of the Univ. of 24 California, 140 S. Ct. at 1905, but nevertheless finds that this is one of those rare 25 “administrative decision[s] traditionally left to agency discretion,” Id.(quoting Lincoln v. 26 Vigil, 508 U.S. 182, 191 (1993)). 27 In Virgil, the Court referenced Webster v. Doe, 486 U.S. 592, 599–601 (1988), 28 where it held that the APA § 701(a)(2) precluded judicial review of a decision by the 1 Director of Central Intelligence to terminate an employee in the interests of national 2 security, an area of executive action “‘in which courts have long been hesitant to intrude.’” 3 Virgil, 508 U.S. at 192 (quoting Franklin v. Massachusetts, 505 U.S. 788, 819 (1992) 4 (STEVENS, J., concurring in part and concurring in judgment). 5 There is a presumption of non-reviewability of decisions by an agency to not 6 undertake enforcement actions. Heckler v. Chaney, 470 U.S. 821, 831–832 (1985) (prison 7 inmates’ action to compel Food and Drug Administration to take enforcement action under 8 the Federal Food, Drug, and Cosmetic Act with respect to drugs used for lethal injections 9 to carry out the death penalty failed under the APA because such enforcement decisions 10 have been traditionally “committed to agency discretion.”) Cf. Gonzalez v. United States, 11 814 F.3d 1022, 1032–33 (9th Cir. 2016) (explaining discretionary function exception for 12 tort liability based on Federal Tort Claims Act waiver of sovereign immunity due to policy 13 judgments that are at the core of the executive branch; law enforcement officers must 14 consider the reliability of information, the relative importance of the crime, and the 15 agency's mission and resources). 16 The decision at issue here, whether Plaintiff’s eligibility for PORTPASS access 17 should be revoked, requires “a complicated balancing of a number of factors which are 18 peculiarly within Defendant’s expertise,” such as where its PORTPASS program 19 “resources are best spent”; whether by revoking the Plaintiff’s PORTPASS it “is likely to 20 succeed” in fulfilling its statutory mandate, and whether revoking the Plaintiff’s 21 PORTPASS “best fits the agency's overall policies,” and, “indeed, whether the agency has 22 enough resources” to retain Plaintiff in the PORTPASS program “at all.” See Heckler, 470 23 U.S. at 831-32 (describing these type of variables and finding “agency is far better 24 equipped than the courts to deal with . . . in the proper ordering of its priorities.”) 25 In Franklin, Justice Steven’s concurrence compared Webster’s challenge to the CIA 26 Director’s termination of an employee for national security reasons with Franklin’s 27 challenge to an agency action involving the census. In comparing the statutory language, 28 there was no language in the Census Act equivalent to language found in the National 1 Security Act (NSA), which gave the CIA discretion to act as the Secretary deemed 2 advisable. This language in the NSA indicated that Congress intended the Secretary’s own 3 mental processes, rather than other more objective factors, to provide the standard for 4 gauging the Secretary’s exercise of discretion.” Franklin, 505 U.S. at 817. 5 In this case, Congress expressly provided: “The Secretary of Homeland Security 6 shall develop a plan to accelerate the full implementation of an automated biometric entry 7 and exit data system.” 8 U.S.C.A. § 1365b(c)(1). The regulations provide for an application 8 to be denied in the discretion of the district director having jurisdiction over the POE where 9 the applicant requests access, with notice to be given to the applicant but there being no 10 appeal from the denial, and the denial being without prejudice to reapplying for this or any 11 other Service benefit after 90 days. 8 C.F.R. § 235.7(a)(4)(x). Access may be revoked at 12 the discretion of the district director or the chief patrol agent, for those who are otherwise 13 determined by an immigration officer to be ineligible to participate in the PORTPASS 14 program. 8 C.F.R. § 235.7(b). 15 The PORTPASS program involves both national security and immigration interests 16 and the decision to allow an entrant to the United States to use an express-lane or not 17 involves law enforcement type considerations. The Court finds that both the statute and the 18 regulations reflect that Congress has not circumscribed agency discretion to allocate its 19 resources, including those related to the issuance and revocation of PORTPASS access. 20 Standard of Review for Summary Judgment 21 On summary judgment, the moving party is entitled to judgment as a matter 22 of law if the Court determines that in the record before it there exists “no genuine issue as 23 to any material fact.” Fed.R.Civ.P. 56(a). The moving party bears the initial burden of 24 demonstrating the absence of a genuine issue of material fact, but is not required to support 25 its motion with affidavits or other similar materials negating the opponent’s claim. Celotex 26 Corp. v. Catrett, 477 U.S. 317, 323-325 (1986). In determining whether to grant summary 27 judgment, the Court views the facts and inferences from these facts in the light most 28 favorable to the non-moving party. Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 1 574, 577 (1986). When cross-motions for summary judgment are at issue, the Court 2 evaluates each motion separately, giving the nonmoving party in each instance the benefit 3 of all reasonable inferences.” Comcast of Sacramento I, LLC v. Sacramento Metro. Cable 4 Television Comm'n, 923 F.3d 1163, 1168 (9th Cir. 2019); Center for Bio-Ethical Reform 5 Inc. v. Los Angeles Cty. Sheriff Dep’t, 533 F.3d 780, 786 (9th Cir. 2008) (“When presented 6 with cross-motions for summary judgment, we review each motion for summary judgment 7 separately, giving the nonmoving party for each motion the benefit of all reasonable 8 inferences.”) 9 The mere existence of some alleged factual dispute between the parties will not 10 defeat an otherwise properly supported motion for summary judgment; the requirement is 11 that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 12 242, 247-48 (1986). A material fact is any factual dispute that might affect the outcome 13 of the case under the governing substantive law. Id. at 248. A factual dispute is genuine if 14 the evidence is such that a reasonable jury could resolve the dispute in favor of the non- 15 moving party. Id. 16 The interpretation and construction of statutes and regulations are questions of 17 law, which as a general matter, a court is charged to “decide all relevant questions of 18 law” and “interpret constitutional and statutory provisions. 5 U.S.C. § 706. Al Otro Lado, 19 Inc. v. Nielsen, 327 F. Supp. 3d 1284, 1309 (S.D. Cal. 2018). Summary judgment can 20 turn on factual issues or legal questions. “Where a case turns on a mixed question of law 21 and fact and . . . the only disputes relate to the legal significance of undisputed facts, the 22 controversy collapses into a question of law suitable to disposition on summary 23 judgment.” Blue Lake Rancheria v. United States, 653 F.3d 1112, 1115 (9th Cir. 2011) 24 (quotations omitted); Campidoglio LLC v. Wells Fargo & Co., 870 F.3d 963, 973 (9th 25 Cir. 2017). 26 The moving party is under no obligation to negate or disprove matters on which the 27 non-moving party bears the burden of proof at trial. Id. at 325. Rather, the moving party 28 need only demonstrate that there is an absence of evidence to support the non-moving 1 party's case. Id. If the moving party meets its burden, it then shifts to the non-moving party 2 to "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 3 (quoting Fed.R.Civ.P. 56(e)). To carry this burden, the party opposing a motion for 4 summary judgment cannot rest upon mere allegations or denials in the pleadings or papers. 5 Anderson, 477 U.S. at 252. The non-moving party must "do more than simply show that 6 there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. 7 "The mere existence of a scintilla of evidence ... will be insufficient; there must be evidence 8 on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. 9 at 252. 10 This trilogy of 1986 cases opened the door for the district courts to rely on summary 11 judgment to weed out frivolous lawsuits and avoid wasteful trials. Rand v. Rowland, 154 12 F.3d 952, 956 -957 (9th Cir. 1998);10A Charles A Wright, Arthur R. Miller & Mary Kay 13 Kane, Federal Practice & Procedure, § 2727, at 468 (1998). As explained in Celotex: "the 14 plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time 15 for discovery and upon motion, against a party who fails to make a showing sufficient to 16 establish the existence of an element essential to that party's case, and on which that party 17 will bear the burden of proof at trial." Celotex, 477 U.S. at 322. 18 The Judge’s role on a motion for summary judgment is not to determine the truth of 19 the matter or to weigh the evidence, or determine credibility, but to determine whether 20 there is a genuine issue for trial. Anderson, 477 U.S. at 252. Because the jurisdiction of this 21 Court is a question of law, summary judgment is warranted based on the Court’s 22 determination that the determination by Defendant to revoke Plaintiff’s PORTPASS access 23 is not subject to judicial review. There is no genuine material fact at issue for trial. 24 Accordingly, 25 IT IS ORDERED that the Plaintiff’s Motion for Summary Judgment (Doc. 27) is 26 DENIED. 27 IT IS FURTHER ORDERED that the Defendants’ Motion for Summary 28 Judgment (Doc. 36) is GRANTED. 1 IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment for || Defendant and against Plaintiff and close this case. 3 Dated this Ist day of February, 2022. 4 SS SY ' Honorable David C. But 8 United StatesPrstrict Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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