Rodriguez v. United States

          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 ...