S. Poverty Law Ctr. v. U.S. Dep't of Homeland Sec.

605 F.Supp.3d 157

SOUTHERN POVERTY LAW CENTER, Plaintiff,

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

Civil Action No. 18-760 (CKK)

United States District Court, District of Columbia.

Signed June 2, 2022

Veronica Salama, Pro Hac Vice, Southern Poverty Law Center, Montgomery, AL, Emily Blythe Lubin, Pro Hac Vice, Southern Poverty Law Center, New Orleans, LA, Gia L. Cincone, Pro Hac Vice, Kilpatrick Townsend & Stockton, LLP, San Francisco, CA, Gracie Willis, Pro Hac Vice, Sarah Rich, Pro Hac Vice, Stephanie M. Alvarez-Jones, Pro Hac Vice, Southern Poverty Law Center, Decatur, GA, Jeffrey H. Fisher, Susan W. Pangborn, Pro Hac Vice, William E. Dorris, Pro Hac Vice, Kilpatrick Townsend & Stockton LLP, Atlanta, GA, John Timothy Bergin, Kilpatrick Townsend & Stockton LLP, Washington, DC, for Plaintiff.

Christopher Thomas Lyerla, Ruth Ann Mueller, Sheetul Sheth Wall, Michael Anthony Celone, Yamileth G. Davila, United States Department of Justice, Civil Division, District Court Section, Washington, DC, Daniel Patrick Schaefer, U.S. Attorney's Office for the District of Columbia, Washington, DC, James Joseph Walker, David Byerley, U.S. Department of Justice, Civil Division, Washington, DC, Kevin Charles Hirst, Richard Gordon Winstead Ingebretsen, U.S. Department of Justice, Washington, DC, for Defendants Department of Homeland Security, U.S. Immigration And Customs Enforcement, Claire Trickler-Mcnulty, Tae Johnson, Nathalie Asher, Sean Gallagher, Matthew T. Albence, Kevin K. Mcaleenan, Derek N. Benner, Enrique Lucero, Trey Lund.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge

This case concerns detained immigrants’ access to legal counsel and conditions of confinement at to four Immigration and Customs Enforcement ("ICE") detention facilities: LaSalle ICE Processing Center in Jena, Louisiana ("LaSalle"); Pine Prairie ICE Processing Center in Pine Prairie, Louisiana ("Pine Prairie"); Irwin County Detention Center in Ocilla, Georgia ("Irwin");¹ and Stewart Detention Center in Lumpkin, Georgia ("Stewart") (collectively, "the Facilities"). Pl.’s Second Am. Compl., ECF No. 70, ¶ 13. Plaintiff Southern Poverty Law Center ("SPLC") is an organization that provides representation for detained persons at these four Facilities. Plaintiff's operative complaint alleges that Plaintiff provides detained individuals legal services in connection with bond, parole, and removal proceedings. Id. ¶¶ 100-01, 318.

Plaintiff alleges that their clients’ conditions of confinement violate the Fifth Amendment and the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq ("APA"). Specifically, Plaintiffs claim that their clients’ conditions of confinement violate the Fifth Amendment's substantive due process guarantees of: (1) access to courts; (2) access to counsel; (3) a full and fair hearing; and (4) to be free of punitive conditions while in civil detention.

Before the Court is Defendants’ [133] Renewed Motion to Partially Dismiss the Second Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(h)(3) for Lack of Subject Matter Jurisdiction. Therein, Defendants ask the Court to dismiss Plaintiff's Fifth Amendment claims because they "arise from" removal proceedings, and the Court lacks jurisdiction to review such claims pursuant to 8 U.S.C. § 1252(b)(9). Additionally, Defendants request dismissal of Plaintiff's APA claim because it does not challenge a final agency action as required by 5 U.S.C. § 702. Because Plaintiff's access-to-courts claim and full-and-fair hearing claim involve bond proceedings—in which an alien may petition for release from civil detention—these claims survive dismissal. Plaintiff's access-to-counsel Fifth Amendment claim must be dismissed for lack of jurisdiction because, as presently pled, it is predicated only on removal proceedings. Plaintiff's APA claim survives dismissal, however, because Defendants point to no statute otherwise stripping the Court of general federal question jurisdiction applicable to APA claims. Finally, for the reasons already discussed in SPLC v. DHS , 2020 WL 3265533, at *14-17 (D.D.C. June 17, 2020), Plaintiff's punitive-conditions claim also survives dismissal. Accordingly, and upon consideration of the briefing,² the relevant authorities, and the entire record, the Court GRANTS IN PART AND DENIES IN PART Defendants’ [133] Renewed Motion to Partially Dismiss the Second Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(h)(3) for Lack of Subject Matter Jurisdiction.

I. BACKGROUND

Among other things, Plaintiff Southern Poverty Law Center provides free legal services to immigrants, including those civilly detained by ICE. See SPLC , 2020 WL 3265533, at *8. This action concerns the work of its constituent organization, the Southeast Immigrant Freedom Initiative ("SIFI"), and the legal services it provides to detainees at the Facilities. Id. SIFI, whether through attorneys employed through SPLC or through volunteer attorneys, "travel to the [Facilities] for week-long rotations in order to meet with potential clients, gather evidence, draft legal documents, and assist clients in obtaining release on bond or parole." Compl. ¶ 100. Additionally, SIFI provides "effective and ethical removal defense to all detained clients." Id. ¶ 101 (emphasis added). Broadly, Plaintiff alleges that ICE maintains conditions of confinement across all Facilities that unconstitutionally impede SIFI and SPLC clients from accessing their SIFI and/or SPLC counsel. Id. ¶ 118. Based on these factual allegations, Plaintiff advances six claims for relief: (1) denial of access to courts in violation of the Due Process Clause of the Fifth Amendment; (2) denial of the right to counsel in violation of the Due Process Clause of the Fifth Amendment; (3) denial of the right to a full and fair hearing in violation of the Due Process Clause of the Fifth Amendment; (4) punitive conditions of confinement in violation of the Due Process Clause of the Fifth Amendment; (5) on behalf of Plaintiff itself, breach of the Free Speech Clause of the First Amendment; and (6) arbitrary and capricious conduct in violation of the APA.

On May 7, 2020, Plaintiff filed a Motion for a Temporary Restraining Order, asking that the Court (1) preliminarily grant the relief sought in the operative complaint and (2) order Defendants to implement certain hygienic protocols in light of the COVID-19 pandemic. The Court granted that motion in part on June 17, 2020, and entered a preliminary injunction ordering Defendants, among other things, to provide more and better means for detainees to communicate with counsel. SPLC , 2020 WL 3265533, at *1. In so doing, the Court found that Plaintiffs were likely to succeed on the merits of their claim that ICE's conditions of confinement across the four Facilities were punitive in violation of substantive due process guaranteed by the Fifth Amendment. Id. at *18. The Court did not consider the merits of any other claim. See id. at *16. In order to reach the merits of the punitive-conditions claim, however, the Court resolved a number of jurisdictional issues. First, the Court found that Plaintiff had third-party standing to bring claims on behalf of its clients, insofar as injury to its clients thwarted Plaintiff's institutional purpose to represent its clients. Id. at *14. Second, the Court concluded that a Fifth Amendment claim predicated on punitive detention did not pose "questions of law [or] fact ... arising from any action taken or proceeding brought to remove an alien from the United States." Id. at *16 (quoting 8 U.S.C. § 1252(b)(9) ). As such, the Court had subject matter jurisdiction to hear such a claim.

Since the Court's order granting preliminary relief, the procedural posture of this case grew substantially more complicated. On July 14, 2020, Defendants moved to dismiss the remainder of Plaintiff's operative complaint for lack of jurisdiction, ECF No. 133, and the parties completed briefing on Plaintiff's [116] motion to compel discovery. In the meantime, the parties continued to litigate certain discovery disputes that the Court referred to Magistrate Judge Robin M. Meriweather for resolution on April 7, 2020. See ECF No. 102. On August 7, 2020, a little less than two months after the Court entered its preliminary injunction, Plaintiff filed its [139] Motion to Enforce the Court's June 17, 2020 Order Granting Injunctive Relief. These motions remained pending before the Court when the parties jointly moved on March 17, 2021 for an order referring the case for mediation and staying all proceedings pending mediation. ECF No. 161. The Court granted that motion the same day, and the parties proceeded to mediation before Judge Meriweather. ECF No. 162. On August 2, 2021, the parties informed the Court that mediation had failed, ECF No. 171, and the Court ordered the parties to file supplemental briefing updating the pending motion to enforce, partial motion to dismiss, and motion to compel, ECF No. 173. All three motions remain pending before the Court (and this Memorandum Opinion resolves the partial motion to dismiss). On January 13, 2022, Defendants added a fourth motion to the mix, moving to stay discovery. ECF No. 183.

On September 17, 2021, the parties completed their supplemental briefing, and the parties lengthened the record substantially as to the pending motion to enforce the preliminary injunction. The Court concluded that it could not resolve the plethora of lengthy, dueling declarations on the motion to enforce and appointed a special monitor on April 14, 2022 to visit the Facilities and prepare a factual report as to the conditions at those facilities. ECF No. 191. The Special Monitor's work remains ongoing as of the date of this Memorandum Opinion.

With this procedural background in mind, the Court now turns to the resolution of Defendants’ [133] Renewed Motion to Partially Dismiss the Second Amended Complaint Pursuant to Federal Rule of Civil...