United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, UNITED STATES DISTRICT JUDGE.
in the above-captioned cases challenge Defendants'
decisions to end the Deferred Action for Childhood Arrivals
("DACA") program and, Plaintiffs allege, to relax
the restrictions on federal authorities' use of DACA
applicants' personal information for
immigration-enforcement purposes. The court assumes
familiarity with the factual and procedural history of these
cases and in particular with its November 9, 2017, Memorandum
and Order (the "November 9 M&O") (Dkt. 104),
which granted in part and denied in part Defendants'
motion to dismiss these cases for lack of subject-matter
jurisdiction,  and its February 13, 2018, Amended
Memorandum and Order (the "February 13 M&O")
(Dkt. 254), which granted Plaintiffs' motions for a
preliminary injunction barring Defendants from terminating
the DACA program in its entirety. Before the court are
Defendants' motions to dismiss the Batalla Vidal
Plaintiffs' third amended complaint pursuant to Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure
and to dismiss the State Plaintiffs' amended complaint
pursuant to Rule 12(b)(6). (3d Am. Compl. ("BV
TAC") (Dkt. 113); Am. Compl. ("State Pls. AC")
(Dkt. 71, No. 17-CV-5228); Defs. Mem. in Supp. of Mot. to
Dismiss the BV TAC ("BV MTD") (Dkt. 207-1); Defs.
Mem. in Supp. of Mot. to Dismiss the State Pls. AC
("State MTD") (Dkt. 71-1); see also Pls.
Mem. in Opp'n to Mot. to Dismiss the BV TAC ("BV
Pls. Opp'n") (Dkt. 240); Pls. Mem. in Opp'n to
Mot. to Dismiss the State Pls. AC ("State Pls.
Opp'n) (Dkt. 202, No. 17-CV-5228).) For the reasons that
follow, Defendants' motions are GRANTED IN PART and
DENIED IN PART.
12(b)(1) motion tests the court's subject-matter
jurisdiction to hear a claim or case. See Fed.R.Civ.P.
12(b)(1). Under Rule 12(b)(1), the court must dismiss a claim
"when the ... court lacks the statutory or
constitutional power to adjudicate it." Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000). When
considering a Rule 12(b)(1) motion, the court "must take
all uncontroverted facts in the complaint... as true, and
draw all reasonable inferences in favor of the party
asserting jurisdiction." Tandon v. Captain's
Cove Marina of Bridgeport. Inc., 752 F.3d 239, 243 (2d
Cir. 2014). Nevertheless, "the party asserting subject
matter jurisdiction 'has the burden of proving by a
preponderance of the evidence that it exists.'"
Id. (quoting Makarova, 201 F.3d at 113).
12(b)(6) motion tests the legal adequacy of the plaintiffs
complaint. To survive a Rule 12(b)(6) motion, the complaint
must "contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.'" Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). In considering the sufficiency of
the complaint, the court "accept[s] all [well-pleaded]
factual allegations in the complaint as true, and draw[s] all
reasonable inferences in the plaintiffs favor, "
Chambers v. Time Warner. Inc., 28 2 F.3d 147, 152
(2d Cir. 2002), but does need not to credit
"[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, "
Iqbal, 556 U.S. at 678. Determining
"plausibility" is a "context-specific task,
" Id. at 679, which "depends on a host of
considerations: the full factual picture presented by the
complaint, the particular cause of action and its elements,
and the existence of alternative explanations so obvious that
they render plaintiffs inferences unreasonable, "
L-7 Designs. Inc. v. Old Navy. LLC, 647 F.3d 419,
430 (2d Cir. 2011).
court's review of a Rule 12(b)(6) motion is generally
limited to "the facts alleged in the complaint,
documents attached to the complaint as exhibits, and
documents incorporated by reference in the complaint, "
as well as documents "integral" to the complaint.
DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d
court first analyzes Plaintiffs' claims challenging the
decision to end the DACA program, then turns to the
Batalla Vidal Plaintiffs' claims challenging
Defendants' (1) alleged changes to the policy regarding
the protection of DACA applicants' personal information
(the "information-use policy") (BV TAC ¶¶
177-82); and (2) rejections of DACA renewal requests that
were delayed due to postal errors, received late in the day
on October 5, 2017, or contained "real or perceived
clerical errors" (id. ¶¶ 199-205).
have stated a claim that the decision to end the DACA program
was substantively arbitrary and capricious, in violation of
Section 706(2)(A) of the Administrative Procedure Act
("APA"), 5 U.S.C. § 706(2), and substantially
motivated by discriminatory animus, in violation of the
equal-protection principle inherent in the Fifth
Amendment's Due Process Clause. Plaintiffs have not,
however, stated a claim that the rescission of the DACA
program was invalid because it was not implemented through
notice-and-comment rulemaking, nor have they stated a claim
that Defendants violated the Regulatory Flexibility Act, 5
U.S.C. § 601 et seq. ("RFA"), by
failing to consider the rescission's impact on small
challenge the decision to end the DACA program as
substantively "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5
U.S.C. § 706(2)(A). (BV TAC ¶¶ 177-82; State
Pls. Am. Compl. ¶¶ 253-56.) In its February 13
M&O, the court found that Plaintiffs were likely to
succeed on the merits of this claim. For the reasons stated
in that opinion, Defendants' motion to dismiss these
claims is DENIED. Additionally, the court notes that it
would be inappropriate to dismiss Plaintiffs' substantive
APA claims at this stage of the litigation, as "there is
a strong suggestion" that the administrative record
previously produced by Defendants is incomplete,
"entitling [Plaintiffs] to discovery regarding the
completeness of the record." (Dec. 27, 2017, USCA Order
(Dkt. 210) at 2-3 (quoting Dopico v. Goldschmidt,
687 F.2d 644, 654 (2d Cir. 1982)).)
next claim that the decision to end the DACA program was
procedurally defective, in violation of Section 7O6(2)(D) of
the APA, because the Department of Homeland Security
("DHS") did not use notice-and-comment rulemaking
to rescind the program. These claims raise challenging
questions but are ultimately unavailing.
the APA, an agency generally must use notice-and-comment
procedures to make any "rule." 5 U.S.C. §
The APA exempts from this requirement, however, "general
statements of policy, " among other types of rule.
Id. § 553(b)(A). The parties dispute whether
the memorandum announcing the rescission of the DACA program
(the "DACA Rescission Memo") (Mem. from Elaine C.
Duke, Acting Sec'y, DHS, Rescission of the June 15, 2012
Memorandum Entitled "Exercising Prosecutorial Discretion
with Respect to Individuals Who Came to the United States as
Children" (Dkt. 77-1 at ECF p.252)) is a "general
statement of policy" exempt from notice-and-comment
rulemaking requirements or instead a "legislative
rule" subject to these requirements. (Compare
BV MTD at 18-20, and State MTD at 28-31, with BV
Pls. Opp'n at 12-16, and State Pls. Opp'n at 15-19.)
The DACA Rescission Memo was not formulated through
notice-and-comment rulemaking, so if it is a legislative
rule, it is invalid. See 5 U.S.C. §§ 553,
court has already noted, the line between legislative rules
and non-legislative rules "is enshrouded in considerable
smog." (Feb. 13 M&O at 30 (quoting Noel v.
Chapman, 508 F.2d 1023, 1030 (2d Cir. 1975)).) See
also Nat'l Mining Ass'n v. McCarthy, 758 F.3d
243, 251 (D.C. Cir. 2014) (characterizing the inquiry for
determining whether an agency action is a legislative rule,
an interpretive rule, or a general statement of policy as
"quite difficult and confused"). There are,
however, general principles to guide the court's inquiry.
If the rule alters the rights or obligations of regulated
parties "or produces other significant effects on
private interests, " it is legislative. White v.
Shalala, 7 F.3d 296, 303 (2d Cir. 1993) (citation
omitted); see also Chrysler Corp. v. Brown,
441 U.S. 281, 302 (1979) (legislative rules "affect
individual rights and obligations" (citation omitted));
Lewis-Mota v. Sec'v of Labor, 469 F.2d 478, 482
(2d Cir. 1972). The D.C. Circuit has summarized what makes a
An agency action that purports to impose legally binding
obligations or prohibitions on regulated parties-and that
would be the basis for an enforcement action for violations
of those obligations or requirements-is a legislative rule.
An agency action that sets forth legally binding requirements
for a private party to obtain a permit or license is a
Nat'l Mining Ass'n. 758 F.3d at 251-52.
however, the rule does not alter regulated parties'
rights and obligations but instead "educat[es]... agency
members in the agency's work, " or is "directed
primarily at the staff of an agency describing how it will
conduct agency discretionary functions, " the rule is a
general policy statement. Noel 508 F.2d at 1030
(first quoting Henry Friendly, The Federal
Administrative Agencies 145-46 (1962), and then
quoting Arthur E. Bonfield, Some Tentative
Thoughts on Public Participation in the Making of
Interpretative Rules and General Statements of
Policy Under the APA, 23 Admin. L. Rev. 101, 115
(1971)); see also Lincoln v. Vigil, 508 U.S. 182,
197 (1993) (general statements of policy are "issued by
an agency to advise the public prospectively of the manner in
which the agency proposed to exercise a discretionary
power" (quoting Chrysler, 441 U.S. at 302
n.3l)); Nat'l Mining Ass'n, 758 F.3d at 252
("An agency action that merely explains how the agency
will enforce a statute or regulation-in other words, how it
will exercise its broad enforcement discretion or permitting
discretion under some extant statute or rule-is a general
statement of policy.").
Second Circuit's decision in Noel helps reveal
the uncertain boundary between legislative rules and general
statements of policy. In Noel two Haitian nationals
unlawfully present in the United States and subject to orders
of deportation married U.S. lawful permanent residents and
sought "extended voluntary departure, " a form of
discretionary relief from deportation that would have enabled
them to remain in this country for up to two years while
waiting for visas. 508 F.2d at 1024. Between 1968 and 1972,
it was the practice of the New York District Director for
Immigration and Naturalization Services ("INS")
routinely to grant extended voluntary departure to such
Western Hemisphere aliens who were present in this country
and married to permanent resident aliens. Id. at
1025. In 1972, however, INS issued a directive stating that
such aliens "should not routinely be granted extended
departure time, but rather should be offered that privilege
only in those cases where compelling circumstances warranted
the relief." Id. at 1025-26. The plaintiffs
argued, among other things, that this directive was a
legislative rule that was invalid because it was not made
through notice-and-comment rulemaking. Id. at 1029.
The Second Circuit rejected this argument, concluding that
the directive was a "general statement of policy"
exempt from notice-and-comment requirements. Id.
First, the Second Circuit noted that the directive did not
purport to amend an existing regulation vesting the district
director with sole discretion to extend deportable
aliens' time in the United States or otherwise to oust
him of this discretion. Id. at 1030. Instead, the
directive only offered "a statement by the agency of its
general policy as a guideline for the District
Directors" in their exercise of this discretion.
Id. Second, the directive did not "change 
the existing right of the [aliens] to have their applications
for extensions of time to depart authorized in the sole
discretion of the district director, " because those
aliens remained eligible to seek deferred voluntary
departure, albeit only on the more limited basis of hardship.
the directive at issue in Noel the DACA Rescission
Memo appears to be a general statement of policy, not a
legislative rule. The DACA Rescission Memo does not deprive
individuals of a substantive right to receive deferred action
or work authorization, or to have these benefits renewed for
additional terms. As the memorandum that launched the DACA
program (the "2012 DACA Memo") states clearly, no
such rights exist. (Mem. from Janet Napolitano, Sec'y,
DHS, "Exercising Prosecutorial Discretion with Respect
to Individuals Who Came to the United States as
Children" ("2012 DACA Memo") (Dkt. 77-1 at ECF
p.1).) Instead, the decision to grant or deny an individual
deferred action and work authorization continues to lie
within immigration authorities' discretion. Like the 2012
DACA Memo, the DACA Rescission Memo offers guidance to DHS
employees as to how the agency intends to exercise this
discretion prospectively: Whereas the 2012 DACA Memo advises
DHS staff to consider exercising prosecutorial discretion
with respect to individuals meeting certain identified
criteria (such as age of entry into the United States and
absence of a meaningful criminal record), the DACA Rescission
Memo directs those staff not to consider those criteria when
exercising their prosecutorial discretion. The DACA
Rescission Memo is thus "directed primarily at the staff
of [DHS] describing how it will conduct agency discretionary
functions." Noel, 508 F.2d at 1030 (internal
quotation marks and citation omitted).
true that, if the DACA Rescission Memo were to take effect,
hundreds of thousands of individuals would no longer have the
opportunity to seek deferred action and work authorization
through the DACA program. As Defendants note, however, the
DACA Rescission Memo does not purport to strip immigration
authorities of the ability to grant deferred action and work
authorization, but only provides that they should not do
based on the criteria identified in the 2012 DACA Memo, or on
the submission of D AC A application materials. (BV MTD at 7
("[A]s was true before implementation of the DACA Policy
in 2012, deferred action remains available on an
individualized basis.").) At least in theory,
individuals who would have been eligible for deferred action
and work authorization under the DACA program may still
qualify for those benefits based on their individual
circumstances. As a practical matter, the DACA Rescission
Memo almost certainly means that fewer individuals will
receive for deferred action and work authorization. But the
directive at issue in Noel surely reduced the number
of aliens eligible for discretionary relief, too, and that
did not render the directive a legislative rule. See
Noel, 508 F.2d at 1025-26.
contend that the DACA Rescission Memo nevertheless is a
legislative rule because it binds DHS's discretion and
requires the agency to reject all DACA applications and
renewal requests not meeting certain criteria. (BV Pls.
Opp'n at 12-14; State Pls. Opp'n at 15-19.) As
Plaintiffs point out, a number of courts outside this
circuit-most notably the D.C. Circuit-have determined whether
a rule is legislative at least partly by looking to whether
the rule constrains the agency's own discretion. See,
e.g., Clarian Health W., LLC v. Hargan, 878
F.3d 346, 357 (D.C. Cir. 2017). In this view, a rule
"'cabining ... an agency's prosecutorial
discretion can in fact rise to the level of a substantive,
legislative rule' when it 'is in purpose or likely
effect one that narrowly limits administrative
discretion.'" Ass'n of Irritated
Residents v. EPA, 494 F.3d 1027, 1034 (D.C. Cir. 2007)
(quoting Cmty. Nutrition Inst, v. Young, 818 F.2d
943, 948 (D.C. Cir. 1987) (per curiam)). Plaintiffs note that
the DACA Rescission Memo mandates the rejection of certain
DACA applications, and therefore contend that the memo
eliminates DHS's discretion to consider those
applications and thus constitutes a legislative rule.
there is some force to Plaintiffs' arguments, they are
unavailing. As an initial matter, it is not clear to this
court that an agency's compliance with its stated policy
is reason to deem that policy a legislative rule. Because one
might expect functional organizations generally to abide by
their own policies, treating general compliance with internal
policies as evidence that those policies were in fact
legislative rules risks writing the "general statements
of policy" exception to notice-and-comment rulemaking
out of the APA. Moreover, it is important to remember that
the DACA Rescission Memo purports to end a program that was
itself created by a policy statement. Plaintiffs' view
that Defendants must use notice and comment to stop what
started without notice and comment is not only
counterintuitive, but also at odds with the general principle
that the procedures needed to repeal or amend a rule as the
same ones that were used to make the rule in the first place.
See Perez v. Mortg. Bankers Ass'n, 135 S.Ct.
1199, 1206 (2015) ("Because an agency is not required to
use notice-and-comment procedures to issue an initial
interpretive rule, it is also not required to use those
procedures when it amends or repeals that interpretive
rule.") To whatever extent the DACA Rescission Memo is
in fact "binding" on DHS, the court cannot agree
that this prospective limitation on the agency's exercise
of its discretion renders the memo a legislative rule.
Defendants' motion to dismiss Plaintiffs'