United States District Court, D. Arizona
ORDER
NEIL
V. WAKE, SENIOR UNITED STATES DISTRICT JUDGE
Before
the Court is the Government's Motion to Dismiss. (Doc.
30.) (The defendants, all federal officials sued in their
official capacity, will be referred to as the Government or
Customs.) After that Motion was filed, the Court ordered the
Government to show cause why judgment on the pleadings should
not be entered in Plaintiff's favor (Doc. 34), to which
the Government responded (Doc. 36).
I.
BACKGROUND
A.
Factual Background
Plaintiff
Alberto Rodriguez (“Rodriguez”), a United States
citizen domiciled in Phoenix, Arizona, brought this action
for judicial review when United States Customs and Border
Patrol (“Customs”) denied his application for a
security clearance in 2016. (Doc. 1.) Rodriguez needed the
clearance for his continued employment as a baggage handler
for American Airlines at Phoenix Sky Harbor International
Airport. Upon denial of his application, he lost his
employment of eight years.
On
September 9, 2011, Rodriguez drove from Arizona to California
for a friend's birthday party. (Doc. 17 at 3, ¶ 23.)
Two friends, including Joel Sanchez, were in the car.
(Id.) Soon after the group crossed into California,
Customs officers pulled them over. (Doc. 1-1 at 1.) The three
friends were detained without explanation. (Id.)
Rodriguez was held for six to seven hours, and his car was
impounded. (Id.) He was released that day, not
charged with any crime, and told he would not be charged with
any crime. (Id.)
Sanchez
was also released, but it turns out he was in the country
illegally. According to Customs, Sanchez was
“subsequently issued a Notice to Appear in immigration
court and deported.” (Doc. 32-2 at 1.) Rodriguez
believed “Sanchez had lived in the United States since
he was a baby” and “was in the process of
obtaining lawful status through his sister.” (Doc. 1-1
at 1.) He also believed Sanchez “had a document from
U.S. Immigration to prove he was in process” and an
Arizona driver's license. (Id.) Rodriguez states
his “only intent was to go to California to visit a
friend for the weekend and return to Arizona”; he
“had no intent to help Joel Sanchez violate any
immigration laws.” (Id.)
Four
years after the events in California, Rodriguez applied for a
security clearance. This was the first time he had to apply
for such a clearance through Customs, though he had worked in
the same position with American Airlines since 2008 based on
clearances issued by the City of Phoenix, which operates the
airport. As explained at the August 22, 2018 oral argument,
Customs had recently decided to issue security clearances
itself for airport employees who accessed areas of
international flights. Because his work included access to
such areas, the airline and he sought such clearance for
Rodriguez.
On
September 10, 2016, his application was denied pursuant to 19
C.F.R. § 122.183(a). (Doc. 1-2.) The following was the
entirety of the explanation provided:
On or about September 9, 2011, you were arrested by United
States Border Patrol agents near Blyth, California as a
driver of vehicle carrying one illegal alien. This is a
violation of 19 CFR 122.183(a)(4)(xxxiv), “Any
violation of a U.S. Immigration law, ….” This is
reason for denial.
(Id.)
Section
122.183(a) says Customs will not grant a security clearance
“to any person whose access to the Customs security
area will, in the judgment of the port director, endanger the
revenue or the security of the area or pose an unacceptable
risk to public health, interest or safety, national security,
or aviation safety.” It then lists specific examples of
bases for denial, including “a disqualifying offense
committed by the applicant.” Id. An
“applicant commits a disqualifying offense if the
applicant has been convicted of . . . or has committed any
act or omission involving” a disqualifying offense.
Id. One of the listed disqualifying offenses is any
“violation of a U.S. immigration law.”
Id. § 122.183(a)(4)(xxxiv).
Rodriguez
retained counsel to handle an administrative appeal. (Doc. 17
at 6, ¶ 27.) His attorney tried to identify a statute
that Rodriguez could have violated. (Doc. 1-3.) He argued in
the appeal letter that no statute applied because there was
no evidence or probable cause to think the travel with
friends was in furtherance of an immigration offense by his
friend. There was no basis to think Rodriguez had the
mens rea to have committed any crime. (See
Id. at 1-2.)
The
Acting Port Director, Jason West (“West”), denied
Rodriguez's appeal on October 7, 2016. (Doc. 1-4.) He
“decided, within my discretion, ” that granting
Rodriguez “access to [Customs] Security areas”
would, in the conclusory language of the regulations,
“endanger the revenue or the security of the area or
pose an unacceptable risk to public health, interest or
safety, national security or aviation safety.”
(Id.) His letter parroted the words of the
regulation but still did not say what law Rodriguez had
violated. (See id.)
On his
further appeal, Rodriguez submitted a three-page,
single-spaced letter that developed earlier arguments and
added new ones, including that the refusal to consider the
facts and arguments presented was an abuse of discretion. It
could also be taken as a demand that the agency exercise
discretion. (Doc. 1-5.)
In a
three-sentence letter, the Director of Field Operations
denied the appeal with no explanation:
I am in receipt of your letter requesting that I vacate the
Port Directors [sic] decision and clear Mr.
Rodriguez to access the [Customs] Security Area, Zone 2 at
the Phoenix Sky Harbor International Airport. I am unable to
facilitate your request at this time. I fully support the
decision of the Port Director, Phoenix Sky Harbor
International Airport.
(Doc. 1-6.)
Rodriguez's
administrative appeals options were exhausted. This action
for judicial review followed.
B.
First Motion to Dismiss
Rodriguez's
Complaint sought “mandamus to compel an evidentiary
hearing, a declaratory judgment that § 122.183(a) is
unconstitutionally vague, instructions on procedures
constitutionally required in the administrative proceeding,
judicial review of final agency action under the
Administrative Procedure Act, and remand under the
Administrative Procedure Act for failure to follow the
agency's own regulations.” (Doc. 28 (citing Doc.
1).) The Government moved to dismiss all claims. (Doc. 22.)
The
Court dismissed all claims except the claim for remand for
violation of the Administrative Procedure Act. The Act does
not authorize substantive judicial review of action committed
to agency discretion by law. (Id. at 10-11.) But
even for such action, the Administrative Procedure Act
provides for judicial review of agency action found to be
made “without observance of procedure required by
law.” 5 U.S.C. § 706(2)(D). Under United
States ex rel. Accardi v. Shaughnessy, 347 U.S. 260
(1954), “procedures required by law include an
agency's own regulations and internal operating
procedures, even for substantive decisions committed to
discretion.” (Doc. 28 at 6.) Accardi dealt
with action expressly committed to agency discretion but
still remanded for failure to exercise the discretion
required by the regulations. 347 U.S. at 268.
19
C.F.R. § 122.183(b) requires that an applicant denied a
clearance for Customs security areas be given written notice
“fully stating the reasons for denial.” The
regulation bars reporting those reasons to the
applicant's employer, but it also says that Customs will
inform the employer “that the detailed ...