by Iris Vilnor was bound by the outcome of Baker.
The Government filed an appeal from this Court's April 15, 1992 order clarifying the relief granted in its April 6, 1992 Memorandum and Order on April 18, 1992. Four days later the Supreme Court granted the Government's application for a stay of this order pending the Second Circuit's disposition of the appeal. On June 10, 1992, the Second Circuit affirmed and modified this Court's April 6th preliminary injunction in Haitian Centers Council, Inc. v. McNary, 969 F.2d 1326 (2d Cir. 1992). Without addressing the First Amendment claim of the Haitian Service Organizations, the Court of Appeals agreed that there were serious questions going to the merits of the Screened In Plaintiffs' Fifth Amendment claims. On September 23, 1992, the Government filed a petition seeking certiorari with the United States Supreme Court.
B. The Second Injunction
While awaiting a decision from the Court of Appeals on the appeal from the first injunction, the Government substantially altered its policy toward Haitian refugees fleeing the political upheaval in Haiti. On May 24, 1992, the President issued an Executive Order directing the United States Coast Guard to return any Haitian interdicted beyond the territorial waters of the United States directly to Haiti without being afforded the opportunity to undergo INS refugee screening. Plaintiffs quickly moved on Order to Show Cause for a temporary restraining order pursuant to Fed. R. Civ. P. 65 restraining the Government from acting pursuant to the May 24th Executive Order.
At a hearing on May 29, 1992, the Plaintiffs argued that the new policy violated Section 243(h) of the INA, Article 33 of the United Nations Convention relating to the Status of Refugees and the 1981 U.S.-Haiti Executive Agreement. On June 6, 1992, the court denied Plaintiff's application for a preliminary injunction.
The Plaintiffs immediately appealed to the Second Circuit Court of Appeals. On July 29, 1992, the Court of Appeals reversed this Court's June 6th order denying a preliminary injunction finding that the language of § 243(h) of the INA imposes a mandatory duty upon the United Stated not to return aliens to their persecutors, no matter where in the world those actions are taken. Haitian Centers Council, et. al. v. McNary, 969 F.2d 1350 (2d Cir. 1992). On August 1, 1992, the Supreme Court granted the Government's application for a stay pending filing of a petition of a writ of certiorari. The Supreme Court recently granted the Government's petition seeking certiorari on this question in McNary v. Haitian Centers Council, Inc., 113 S. Ct. 52, 121 L. Ed. 2d 22, 61 U.S.L.W. 3256 (Oct. 5, 1992).
A. Rule 12(b)(6) Standard
The Court will examine the Plaintiff's claims under Rule 12(b)(6). "The court's function on a Rule 12(b)(6) motion is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Festa v. Local 3 International Brotherhood of Electrical Workers, 905 F.2d 35, 37 (2d Cir. 1990). The court must accept the facts as alleged in the complaint as true. Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991). A motion to dismiss must be denied "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686 (1974) (citing Conley v. Gibson, 355 U.S. 41, 45-6, 78 S. Ct 99 (1957).
B. Failure to Follow Rulemaking Procedures
Plaintiff's Fourth Claim for Relief alleges that the Government failed to follow rulemaking procedures under the Administrative Procedure Act ("APA"), 5 U.S.C. § 551, et. seq. in implementing its new policy for rescreening "screened-in" Haitians as set forth in the Rees memorandum.
Section 553, the APA's notice and comment provision, provides the following:
(b) General notice of proposed rule making shall be published in the Federal Register . . . .
The notice shall include--