Case: 3:18-cv-2137 As of: 10/31/2018 03:23 PM PDT 1 of 3
ADRMOP,CONSENT,STAYED
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:18−cv−02137−JSC

Muslim Advocates v. U.S. Department of Justice et al Assigned to: Magistrate Judge Jacqueline Scott Corley Cause: 46:1156 Administrative Procedure Act
Plaintiff

Date Filed: 04/09/2018 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Muslim Advocates

represented by Matthew William Callahan Muslim Advocates PO Box 71080 Oakland, CA 94612 415−692−1484 Email: matthew@muslimadvocates.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Johnathan James Smith Muslim Advocates P.O. Box 34440 Washingon, DC 20043 202−897−1897 Fax: 202−508−1007 Email: johnathan@muslimadvocates.org ATTORNEY TO BE NOTICED

Robin Frances Thurston Democracy Forward Foundation P.O. Box 34553 11th Floor Washington, DC 20043 (202) 448−9090 Email: rthurston@democracyforward.org PRO HAC VICE ATTORNEY TO BE NOTICED

Sirine Shebaya Muslim Advocates P.O. Box 34440 Washington, DC 20043 202−897−1897 Fax: 202−508−1007 Email: sirine@muslimadvocates.org ATTORNEY TO BE NOTICED

V. Defendant U.S. Department of Justice

represented by Michelle Lo United States Attorney's Office Northern District of California 450 Golden Gate Avenue P.O. Box 36055 San Francisco, CA 94102 (415) 436−7180 Fax: (415) 436−6748 Email: Michelle.Lo@usdoj.gov

Case: 3:18-cv-2137 As of: 10/31/2018 03:23 PM PDT 2 of 3

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant U.S. Department of Homeland Security

represented by Michelle Lo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/09/2018 04/09/2018 04/09/2018 04/10/2018
04/10/2018 04/10/2018 04/10/2018 04/11/2018 04/16/2018 04/17/2018 04/20/2018 04/20/2018

# Docket Text
1 COMPLAINT for injunctive and declaratory relief against U.S. Department of Homeland Security, U.S. Department of Justice ( Filing fee $ 400, receipt number 0971−12258899.). Filed byMuslim Advocates. (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet)(Callahan, Matthew) (Filed on 4/9/2018) (Entered: 04/09/2018)
2 Proposed Summons. (Callahan, Matthew) (Filed on 4/9/2018) (Entered: 04/09/2018)
3 Certificate of Interested Entities by Muslim Advocates (Callahan, Matthew) (Filed on 4/9/2018) (Entered: 04/09/2018)
4 Case assigned to Magistrate Judge Jacqueline Scott Corley.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 4/24/2018. (srnS, COURT STAFF) (Filed on 4/10/2018) (Entered: 04/10/2018)
5 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12261178.) filed by Muslim Advocates. (Attachments: # 1 Exhibit Certificate of good standing)(Shebaya, Sirine) (Filed on 4/10/2018) (Entered: 04/10/2018)
6 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 7/5/2018. Initial Case Management Conference set for 7/12/2018 01:30 PM in San Francisco, Courtroom F, 15th Floor. (slhS, COURT STAFF) (Filed on 4/10/2018) (Entered: 04/10/2018)
7 Summons Issued as to U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Attorney and U.S. Attorney General (slhS, COURT STAFF) (Filed on 4/10/2018) (Entered: 04/10/2018)
8 ORDER by Magistrate Judge Jacqueline Scott Corley granting 5 Motion for Pro Hac Vice as to Sirine Shebaya. (ahm, COURT STAFF) (Filed on 4/11/2018) (Entered: 04/11/2018)
9 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12272701.) filed by Muslim Advocates. (Attachments: # 1 Exhibit Certificate of good standing)(Thurston, Robin) (Filed on 4/16/2018) (Entered: 04/16/2018)
10 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12276487.) filed by Muslim Advocates. (Attachments: # 1 Exhibit Certificate of good standing)(Smith, Johnathan) (Filed on 4/17/2018) (Entered: 04/17/2018)
11 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Muslim Advocates.. (Shebaya, Sirine) (Filed on 4/20/2018) (Entered: 04/20/2018)
12 ORDER by Magistrate Judge Jacqueline Scott Corley granting 9 Motion for Pro Hac Vice as to Robin Thurston. (ahmS, COURT STAFF) (Filed on 4/20/2018) (Entered: 04/20/2018)

Case: 3:18-cv-2137 As of: 10/31/2018 03:23 PM PDT 3 of 3

04/20/2018 04/25/2018 05/31/2018 06/01/2018
06/04/2018
06/04/2018 07/06/2018 07/10/2018
08/02/2018
08/20/2018 08/22/2018 08/23/2018

13 ORDER by Magistrate Judge Jacqueline Scott Corley granting 10 Motion for Pro Hac Vice as to Johnathan Smith. (ahmS, COURT STAFF) (Filed on 4/20/2018) (Entered: 04/20/2018)
14 CERTIFICATE OF SERVICE by Muslim Advocates (Attachments: # 1 Declaration)(Thurston, Robin) (Filed on 4/25/2018) (Entered: 04/25/2018)
15 STIPULATION WITH PROPOSED ORDER to Extend Time to Respond to Complaint and Continue Initial Case Management Conference filed by U.S. Department of Homeland Security, U.S. Department of Justice. (Lo, Michelle) (Filed on 5/31/2018) (Entered: 05/31/2018)
16 CLERK'S NOTICE Re: Consent or Declination: Defendants shall file a consent or declination to proceed before a magistrate judge by 6/15/2018. Note that any party is free to withhold consent to proceed before a magistrate judge without adverse substantive consequences. The forms are available at: http://cand.uscourts.gov/civilforms. (ahm, COURT STAFF) (Filed on 6/1/2018) (Entered: 06/01/2018)
17 ORDER by Magistrate Judge Jacqueline Scott Corley granting 15 Stipulation to Extend Time to Respond to Complaint and Continue Initial Case Management Conference. Joint Case Management Statement due by 9/6/2018. Initial Case Management Conference reset for 9/13/2018 at 01:30 PM in San Francisco, Courtroom F, 15th Floor. (ahm, COURT STAFF) (Filed on 6/4/2018) (Entered: 06/04/2018)
18 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by U.S. Department of Homeland Security, U.S. Department of Justice.. (Lo, Michelle) (Filed on 6/4/2018) (Entered: 06/04/2018)
19 STIPULATION WITH PROPOSED ORDER to Extend Time to Respond to Complaint and Continue Initial Case Management Conference filed by U.S. Department of Homeland Security, U.S. Department of Justice. (Lo, Michelle) (Filed on 7/6/2018) Modified on 7/9/2018 (slhS, COURT STAFF). (Entered: 07/06/2018)
20 ORDER by Magistrate Judge Jacqueline Scott Corley granting 19 Stipulation to Extend Time to Respond to Complaint and Continue Initial Case Management Conference. Joint Case Management Statement due by 11/1/2018. Initial Case Management Conference reset for 11/8/2018 at 1:30 PM in San Francisco, Courtroom F, 15th Floor. (ahmS, COURT STAFF) (Filed on 7/10/2018) (Entered: 07/10/2018)
21 MOTION to Dismiss filed by U.S. Department of Homeland Security, U.S. Department of Justice. Motion Hearing set for 10/11/2018 09:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. Responses due by 8/30/2018. Replies due by 9/20/2018. (Attachments: # 1 Declaration of Michelle Lo in Support of Defendants' Motion to Dismiss, # 2 Proposed Order)(Lo, Michelle) (Filed on 8/2/2018) (Entered: 08/02/2018)
22 NOTICE of Change of Address by Sirine Shebaya (Shebaya, Sirine) (Filed on 8/20/2018) (Entered: 08/20/2018)
23 STIPULATION WITH PROPOSED ORDER To Stay Case Pending Administrative Appeals filed by Muslim Advocates. (Thurston, Robin) (Filed on 8/22/2018) (Entered: 08/22/2018)
24 ORDER by Magistrate Judge Jacqueline Scott Corley granting 23 Stipulation To Stay Case Pending Administrative Appeals. (ahm, COURT STAFF) (Filed on 8/23/2018) (Entered: 08/23/2018)

 
 Case 4:18-cv-02137-JSC Document 1 Filed 04/09/18 Page 1 of 26

1 Matthew Callahan (CA Bar No. 307782)

Muslim Advocates 2 P.O. Box 71080

3

Oakland, CA 94612 (415) 692-1484

4 matthew@muslimadvocates.org

5 Johnathan Smith (D.C. Bar No. 1029373)*

Sirine Shebaya (D.C. Bar No. 1019748)* 6 Muslim Advocates

7

P.O. Box 66408 Washington, DC 20035

8 (202) 879-2622 johnathan@muslimadvocates.org

9 sirine@muslimadvocates.org

10 Robin F. Thurston (D.C. Bar No. 1531399)* 11 Democracy Forward Foundation
P.O. Box 34553 12 Washington, DC 20043
(202) 448-9090 13 rthurston@democracyforward.org
*pro hac vice application forthcoming 14

15 Counsel for Plaintiff

16

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

17

Oakland Division

18

19 Muslim Advocates, Plaintiff,

20 v.
21

U.S. Department of Justice; U.S. Department 22 of Homeland Security,

23

Defendants.

Case No. ______________________
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

24

25

26

27

28 Complaint for Declaratory and Injunctive Relief

1

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1

Plaintiff Muslim Advocates hereby sues Defendants the U.S. Department of Justice

2 (“DOJ”) and the U.S. Department of Homeland Security (“DHS”) under the Administrative
3 Procedure Act, 5 U.S.C. §§ 701 et seq., (“APA”) and for violation of the Information Quality 4
Act, 44 U.S.C. § 3516 note (“IQA”), and alleges as follows: 5
Introduction 6
7 1. President Trump campaigned on the promise of a “total and complete shutdown of
8 Muslims entering the United States.” Since taking office, he has sought to fulfill this overtly

9 discriminatory pledge by enacting three successive bans on nationals of several Muslim-majority

10 countries and a series of policies aimed at slowing the entry of refugees, particularly from
11 Muslim-majority countries, into the United States. He has also sought to reduce other
12 longstanding paths to lawful immigration.
13 2. As part of this anti-Muslim and anti-immigrant agenda, the President and members of his
14
15 Administration regularly overstate and misrepresent the threat that immigrants, especially

16 Muslim immigrants, pose to the United States. This bias infects a report recently published by

17 Defendants, the Executive Order 13780: Protecting the Nation From Foreign Terrorist Entry Into

18 the United States Initial Section 11 Report (the “Report”).

19 3.

Executive Order 13780, which required publication of the Report, incorporated President

20

Trump’s second attempt at a travel ban, and directed Defendants, in order to be “more 21

22 transparent with the American people and to implement more effective policies and practices that

23 serve the national interest,” to compile and disseminate information that purports to link

24 terrorism to immigration.

25

26

27

28 Complaint for Declaratory and Injunctive Relief

2

Case 4:18-cv-02137-JSC Document 1 Filed 04/09/18 Page 3 of 26

1 4. The Report presents information on immigrants and foreign nationals in a manner that

2 misleadingly inflates the threat they pose to the United States. Its presentation of this

3 information also focuses exclusively and inaccurately on Muslims.

4 5.

Among the ways the Report manipulates information to support its anti-immigrant and

5

anti-Muslim conclusions: it ignores domestic terrorism incidents; it departs from the directive of 6

7 EO 13780 and analyzes terrorism incidents involving foreign-born Americans rather than foreign

8 nationals; it includes individuals who committed terrorism acts overseas and whose only tie to

9 the United States is their extradition for prosecution; and it relies on irrelevant and debunked

10 studies in providing information regarding so-called “honor killings” and violence against

11 women.

12 6.
13

In so doing, the Report perpetuates the ongoing stigmatization of immigrants and

Muslims by the Administration. For example, the Trump Administration has used the Report to 14

15 justify its sweeping ban on the entry of nationals from six Muslim-majority countries into the

16 United States. It has also specifically tied the Report’s findings to its calls for an end to the

17 issuance of diversity and family reunification visas, which would have a significant negative

18 impact on Muslim immigrants.

19 7.

The Report has been used explicitly to stoke anti-Muslim and anti-immigrant sentiment

20

and is likely to continue to be used in this manner. It therefore not only contributes on its face to 21

22 their stigmatization, but it is also likely to contribute to increasing hate violence against these

23 communities.

24 8. Muslim Advocates sought a retraction and correction of the Report because its

25 presentation of information does not meet the level of quality required of federal agencies by the 26 IQA and its implementing Guidelines. Defendants have failed to comply with their obligation to 27

28 Complaint for Declaratory and Injunctive Relief

3

Case 4:18-cv-02137-JSC Document 1 Filed 04/09/18 Page 4 of 26

1 respond to this request for retraction, and accordingly, Plaintiff seeks judicial relief pursuant to

2 the APA.

3

Parties

4 9.

Muslim Advocates is a civil rights organization that promotes freedom and justice for

5

Americans of all faiths, with a particular focus on issues impacting Muslim communities. 6

7 Muslim Advocates engages in civil rights litigation, policy advocacy, and public education to

8 fight inaccurate stereotypes about Muslims and other immigrants. In particular, Muslim

9 Advocates works to ensure that policies enacted under the banner of national security do not

10 wrongfully discriminate against Muslims and are not based on inaccurate or misleading

11 information. Muslim Advocates’ headquarters are in Oakland, California.

12 10.
13

The Department of Justice is a federal agency. Along with the Department of

Homeland Security, it disseminated the Report. 14

15 11. The Department of Homeland Security is a federal agency. Along with the

16 Department of Justice, it disseminated the Report.

17

Jurisdiction, Venue, and Intradistrict Assignment

18 12. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331,
19 because this action arises under federal law, specifically the Information Quality Act, 44 U.S.C.
20 § 3516 note (“IQA”), and the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. (“APA”).
21
22 13. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e), because Plaintiff resides

23 in this district.

24 14. Plaintiff resides in Alameda County, making assignment to the Oakland Division

25 appropriate pursuant to Local Civil Rule 3-2(c), (d). 26

27

28 Complaint for Declaratory and Injunctive Relief

4

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1

The Information Quality Act

2 15. The IQA, together with its implementing Guidelines, requires that information
3 disseminated to the public by federal agencies, including by DHS and DOJ, be of requisite 4
quality, objectivity, utility, and integrity.1 5
16. The IQA, an addendum to the Paperwork Reduction Act, 44 U.S.C. §§ 3501 et seq. 6 7 (“PRA”), directs the Office of Management and Budget (“OMB”) to issue guidelines under

8 various PRA authorities by September 30, 2001.

9 17. The IQA provides that the guidelines issued by OMB should require each federal agency

10 to which they apply to, in turn:

11 (A) issue guidelines ensuring and maximizing the quality, objectivity, utility, and

12

integrity of information (including statistical information) disseminated by the

agency, by not later than 1 year after the date of issuance of the guidelines under

13

subsection (a); [and]

14

(B) establish administrative mechanisms allowing affected persons to seek and

15

obtain correction of information maintained and disseminated by the agency that does not comply with the guidelines issued under subsection (a).

16 44 U.S.C. § 3516 note (B)(2).

17
18. 18

OMB issued “final guidelines”, as directed, after a period of notice and comment, in

2002.2 19

20 19. In issuing its Guidelines, OMB explained, “[g]iven the administrative mechanisms

21 required by [the IQA] as well as the standards set forth in the Paperwork Reduction Act, it is

22

23

24 1 Consolidated Appropriations—FY 2001, Pub. L. No. 106-554, § 515, 114 Stat. 2763, 2763A153, 154 (2000) (codified at 44 U.S.C. § 3516 note).
25 2 Office of Mgmt. & Budget, Exec. Office of the President, Guidelines for Ensuring and
26 Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies (“OMB Guidelines”), 67 Fed. Reg. 8451, 8452 (Feb. 22, 2002),
27 https://www.gpo.gov/fdsys/pkg/FR-2002-02-22/pdf/R2-59.pdf.
28 Complaint for Declaratory and Injunctive Relief

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Case 4:18-cv-02137-JSC Document 1 Filed 04/09/18 Page 6 of 26

1 clear that agencies should not disseminate substantive information that does not meet a basic

2 level of quality.” 67 Fed. Reg. at 8452.

3 20. The OMB Guidelines elaborate on the directives set forth in the IQA itself. They define

4 “quality”, “utility”, “objectivity,” and “integrity”, among other relevant terms. These definitions
5
state, in part: 6

7

“Quality” is an encompassing term comprising utility, objectivity, and integrity.

8

“Utility” refers to the usefulness of the information to its intended users, including

the public. In assessing the usefulness of information that the agency disseminates

9

to the public, the agency needs to consider the uses of the information not only

from the perspective of the agency but also from the perspective of the public. As

10

a result, when transparency of information is relevant for assessing the

11

information’s usefulness from the public's perspective, the agency must take care to ensure that transparency has been addressed in its review of the information. …

12 “Objectivity” includes whether disseminated information is being presented in an

13

accurate, clear, complete, and unbiased manner. This involves whether the

information is presented within a proper context. Sometimes, in disseminating

14

certain types of information to the public, other information must also be

disseminated in order to ensure an accurate, clear, complete, and unbiased

15

presentation.

16 21. The OMB Guidelines also require agencies to “establish administrative mechanisms
17 allowing affected persons to seek and obtain, where appropriate, timely correction of information
18 maintained and disseminated by the agency that does not comply with OMB or agency
19
20 guidelines.” Id. at 8459.

21 22. Defendants have each promulgated guidelines applicable to themselves.

22 23. The DOJ Guidelines set forth definitions of “utility”, “objectivity”, and “integrity”, which

23 “apply, consistent with the OMB Guidelines (paragraph V, definitions) which will also apply.”3 24

25 3 U.S. DOJ, Information Quality: Ensuring the Quality of the Information Disseminated by the
26 Department (“DOJ Guidelines”), https://www.justice.gov/iqpr/information-quality (last updated Nov. 1, 2016).
27

28 Complaint for Declaratory and Injunctive Relief

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Case 4:18-cv-02137-JSC Document 1 Filed 04/09/18 Page 7 of 26

1 24. The DOJ Guidelines also set forth a process for submitting a formal request for

2 correction, including a description of the information that requests for correction should include,

3 and a statement that the requester bears the burden of proof in seeking a correction.

4 25.
5
6
7
8
9
10
11

The DOJ Guidelines state that:
Based on the explanation and evidence submitted with the request for correction, a DOJ official who is knowledgeable of the subject matter will conduct a thorough review of the information being challenged, the processes that were used to create and disseminate the information, and the conformity of the information and those processes with both OMB’s and DOJ’s Information Quality Guidelines. After it has completed its review, DOJ will determine whether a correction is warranted, and, if so, what corrective action it will take. … After the responsible DOJ component has made its final determination pertaining to a request for correction of information, it will respond to the requestor by letter, e-mail, or fax. The response will explain the findings and the actions to be taken (if any) in response to the complaint.

12 26. DOJ Guidelines state that normally the agency will respond to a request for correction
13 within sixty calendar days of receipt, or will inform the requestor of any additional time needed
14

15 to resolve the request, the reason why, and an estimated decision date.

16 27. The DHS Guidelines, which are based on the OMB Guidelines, also state that the three

17 underlying requirements for quality information are utility, objectivity, and integrity of

18 information, and set forth accompanying definitions.4
19 28. The DHS Guidelines also provide for an administrative information correction process,
20 whereby “affected persons can seek, and obtain, where appropriate, timely correction of
21 information that does not comply with OMB Guidelines, DHS Guidelines, or [DHS] Component
22
23 standards.”5

24

25 4 U.S. Dep’t Homeland Security, Information Quality Guidelines (last visited Jan. 18, 2018), https://www.dhs.gov/sites/default/files/publications/dhs-iq-guidelines-fy2011.pdf (“DHS
26 Guidelines”) at 2-5.
27 5 Id. at 6.

28 Complaint for Declaratory and Injunctive Relief

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1 29. The DHS Guidelines also state that DHS Components should respond to requests for

2 correction in writing within sixty calendar days of receipt.

3

Factual Allegations

4
5 30.
6

Executive Order 13780 and its reporting requirement. President Trump signed Executive Order 13780, Protecting the Nation from Foreign

7 Terrorist Entry into the United States (“EO 13780”) on March 6, 2017.

8 31. EO 13780 significantly restricts entry to the United States by individuals from six

9 Muslim-majority countries. The travel restrictions imposed by EO 13780 and its predecessor

10 and successor Executive Order and Proclamation6 are the subject of widespread and ongoing
11 litigation. Numerous individuals and organizations sued to challenge the legality of parts of the
12 Orders and Proclamation, obtaining injunctions against their restrictions on travel.
13 32. In addition to the travel restrictions, Section 11 of EO 13780 (“Section 11”) contains an
14
15 instruction to the Secretary of Homeland Security, in consultation with the Attorney General, to

16 collect and make publicly available certain information regarding foreign nationals and

17 terrorism. EO 13780, Sec. 11(a). This Section has not been the subject of litigation.
18 33. Section 11 requires in pertinent part that “[t]o be more transparent with the American
19 people and to implement more effectively policies and practices that serve the national interest,
20 the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent
21 22 with applicable law and national security, collect and make publicly available the following
23 information:

24

25

26 6 Exec. Order No. 13769, Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety
27 Threats (the “Proclamation”), 82 Fed. Reg. 45,161 (Sept. 27, 2017)..
28 Complaint for Declaratory and Injunctive Relief

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Case 4:18-cv-02137-JSC Document 1 Filed 04/09/18 Page 9 of 26

1

(i) information regarding the number of foreign nationals in the United States who

have been charged with terrorism-related offenses while in the United States;

2

convicted of terrorism-related offenses while in the United States; or removed

3

from the United States based on terrorism-related activity, affiliation with or provision of material support to a terrorism-related organization, or any other

4

national-security-related reasons;

5

(ii) information regarding the number of foreign nationals in the United States

who have been radicalized after entry into the United States and who have

6

engaged in terrorism-related acts, or who have provided material support to

terrorism-related organizations in countries that pose a threat to the United States; 7

8

(iii) information regarding the number and types of acts of gender-based violence against women, including so-called “honor killings,” in the United States by

9

foreign nationals; and

10

(iv) any other information relevant to public safety and security as determined by

the Secretary of Homeland Security or the Attorney General, including

11

information on the immigration status of foreign nationals charged with major

12

offenses.

13 EO 13780, Sec. 11(a).

14 34. EO 13780 instructs that the Secretary of Homeland Security shall release the “initial

15 report” required by Section 11(a) within 180 days, and that the report shall include information

16 for the period from September 11, 2001, until the date of the initial report. EO 13780, Sec.

17 11(b).

18
35. 19

On January 16, 2018, DOJ and DHS released a report titled: “Executive Order 13780:

Protecting the Nation From Foreign Terrorist Entry Into the United States Initial Section 11 20

21 Report”7, which is the initial report required by Section 11, and which purports to provide

22 information responsive to the four categories of information that Section 11 requires be made

23 available. Report at 1.

24

25 7 U.S. DHS & U.S. DOJ, Executive Order 13780: Protecting the Nation from Foreign Terrorist
26 Entry into the United States Initial Section 11 Report (the “Report”) (Jan. 2018), https://www.dhs.gov/sites/default/files/publications/Executive%20Order%
27 2013780%20Section%2011%20Report%20-%20Final.pdf.
28 Complaint for Declaratory and Injunctive Relief

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1 36. The Report sets forth various information in response to the four subsections identified

2 by Section 11, including the misleading conclusion that three out of four individuals convicted of

3 international terrorism and terrorism-related offenses were foreign-born.

4 37.
5

Defendants issued the Report with accompanying press releases highlighting the “three

out of four” conclusion and have disseminated the Report to the public on their respective 6

7 webpages.8

8 38. Despite the Administration’s ongoing dissemination of the Report, the information in the

9 Report is biased, misleading, and incomplete. It violates OMB’s IQA Guidelines, lacking utility

10 and objectivity, and Defendants’ respective IQA Guidelines, as set forth in detail, below.
11 The Report’s substitution of international terrorism for all terrorism misleadingly
12 undercounts domestic terrorism, and artificially inflates the proportion of terrorist incidents committed by immigrants and foreign nationals.
13 39. The government’s own studies show that native born citizens commit significant numbers
14
15 of terrorist attacks in the United States, and indeed are responsible for the overwhelming

16 majority of terrorism fatalities since 2002.9 An April 2017 Government Accountability Office

17 report concluded that “of the 85 violent extremist incidents that resulted in death since

18 September 12, 2001, far right wing violent extremist groups were responsible for 62 (73 percent) 19

20 8 Press Release, U.S. DHS, DHS, DOJ Report: Three Out of Four Individuals Convicted of International Terrorism and Terrorism-Related Offenses Were Foreign-Born (“DHS Press
21 Release”) (Jan. 16, 2018), https://www.dhs.gov/news/2018/01/16/dhs-doj-report-three-out-four22 individuals-convicted-international-terrorism-and; Press Release, U.S. DOJ, DOJ, DHS Report:
Three Out of Four Individuals Convicted of International Terrorism and Terrorism-Related 23 Offenses Were Foreign-Born (“DOJ Press Release”) (Jan. 16, 2018),
https://www.justice.gov/opa/pr/doj-dhs-report-three-out-four-individuals-convicted24 international-terrorism-and-terrorism.
25 9 See Alex Nowrasteh, New Government Terrorism Report Provides Little Useful Information, Cato Inst. (Jan. 16, 2018), https://www.cato.org/blog/new-government-terrorism-report-nearly-
26 worthless (“Since the beginning of 2002, native-born Americans were responsible for 78 percent of all murders in terrorist attacks committed on U.S. soil while foreign-born terrorists only
27 committed 22 percent.”).
28 Complaint for Declaratory and Injunctive Relief

10

Case 4:18-cv-02137-JSC Document 1 Filed 04/09/18 Page 11 of 26
1 while radical Islamist violent extremists were responsible for 23 (27 percent).”10 Similarly, DHS
2 and the Federal Bureau of Investigation published an intelligence bulletin in May 2017 titled
3 “White Supremacist Extremism Poses Persistent Threat of Lethal Violence.” That bulletin states 4
that white supremacist extremists, who are very rarely immigrants, were responsible for “49 5
homicides in 26 attacks from 2000 to 2016 . . . more than any other domestic extremist 6 7 movement.”11
8 40. Despite the prevalence of serious domestic terrorist threats, particularly the threat posed
9 by far-right wing violent extremist groups, the Report, which purports to address all terrorism-
10 related offenses, only provides data related to international terrorism-related offenses. Report at 11
2. This presentation of information runs contrary to EO 13780’s directive that Defendants 12
publish information regarding foreign nationals charged with or convicted of “terrorism-related 13
offenses” generally, not just international terrorism-related offenses. Through their manipulation 14 15 of data, Defendants have been able to artificially increase the proportion of immigrants and
16 foreign nationals presented as responsible for terrorist incidents—without making clear that the
17 scope of the data is much narrower than what EO 13780 requires.
18 41. The Report’s conclusions were drawn from data regarding only international terrorism19
related offenses, specifically: “public convictions in federal courts between September 11, 2001, 20
and December 31, 2016 resulting from international terrorism investigations, including 21
22 10 See U.S. Gov’t Accountability Office, Countering Violent Extremism: Actions Needed to 23 Define Strategy and Assess Progress of Federal Efforts 4 (Apr. 2017),
http://www.gao.gov/assets/690/683984.pdf. 24 11 See FBI & DHS Joint Intelligence Bulletin, White Supremacist Extremism Poses Persistent 25 Threat of Lethal Violence 4 (May 10, 2017), available at
https://www.documentcloud.org/documents/3924852-White-Supremacist-Extremism-JIB.html; 26 see also Jana Winter, FBI and DHS Warned of Growing Threat from White Supremacists Months
Ago, Foreign Policy (Aug. 14, 2017), http://foreignpolicy.com/2017/08/14/fbi-and-dhs-warned27 of-growing-threat-from-white-supremacists-months-ago/ (citing the Joint Intelligence Bulletin). 28 Complaint for Declaratory and Injunctive Relief
11

Case 4:18-cv-02137-JSC Document 1 Filed 04/09/18 Page 12 of 26

1 investigations of terrorist acts planned or committed outside the territorial jurisdiction of the

2 United States over which Federal criminal jurisdiction exists and those within the United States

3 involving international terrorists and terrorist groups.” Report at 2.

4 42.
5
43. 6

Defendants omitted data related to domestic terrorism without explanation. The Report categorically excludes all terrorism-related offenses that occurred in the

7 United States which were planned and executed by individuals without international connections.

8 This exclusion dramatically misrepresents the actual terrorist threat posed by immigrants and

9 foreign nationals in the United States. By presenting data that omits completely information

10 about the documented threat posed by domestic terrorists without international ties, and framing

11 it as responsive to the directive to provide data regarding all terrorism-related offenses,

12 Defendants have disseminated information that lacks utility and is not objective.
13

The Report provides misleading and biased information by substituting data concerning

14

foreign-born individuals for data concerning foreign nationals.

15 44. Section 11 directed Defendants to provide various information related to “foreign
16 nationals” and terrorism-related offenses. EO 13780, Sec. 11(a).
17
45. The Report instead disseminates information regarding foreign-born individuals, rather 18

19 than foreign nationals, stating that of at least 549 individuals who were convicted of international

20 (and only international) terrorism-related charges in U.S. federal courts between September 11,

21 2001, and December 31, 2016, “approximately 73 percent (402 of these 549 individuals) were
22 foreign-born.” Report at 2. 23
46. The Report does not provide any explanation for the substitution of foreign-born persons 24
for foreign nationals, although doing so results in the inaccurate conclusion that nearly three25 26 quarters of individuals who were convicted of international terrorism-related charges were
27 immigrants or non-citizens.

28 Complaint for Declaratory and Injunctive Relief

12

Case 4:18-cv-02137-JSC Document 1 Filed 04/09/18 Page 13 of 26

1 47. The Report further states that of these 549 individuals, 254 were not U.S. citizens, 148

2 were foreign-born, naturalized and received U.S. citizenship, and 147 were U.S. citizens by birth.
3 Report at 2. Had the Report followed EO 13780’s directive to report on foreign nationals, even 4
based on its own flawed data, it would have concluded that fewer than half, or 46 percent, of 5
individuals charged or convicted of international terrorism-related offenses met this criterion. 6
7 48. Responding to a request for information that purports to be about the terrorist threat that
8 foreign national immigrants pose to the United States by disseminating information that includes

9 naturalized citizens perpetuates the Administration’s discriminatory view that only native-born

10 individuals are actually American, and results in numbers that are artificially inflated. As such,

11 in substituting foreign-born for foreign national, Defendants disseminated information that does

12 not have utility and is not objective.
13

The Report’s inclusion of individuals who committed terrorism overseas and whose

14

only apparent tie to the United States is extradition to the United States for prosecution is

15

misleading.

16 49. EO 13780 also directs Defendants to disseminate information regarding terrorist events

17 that took place in the United States, specifically data about individuals who were charged with or
18 convicted of terrorism-related offenses “while in the United States” or who have been removed
19 from the United States for various reasons. EO 13780, Sec. 11(a)(i).
20 50. In response, the Report instead disseminates information about individuals who
21 22 “committed offenses while located abroad, including [those] who were transported to the United
23 States for prosecution.” Report at 2.

24 51. Although someone who has been extradited to the United States for trial may be charged

25 and convicted while in the United States, the offenses committed by that person overseas do not 26 necessarily reveal the actual terror threat to the United States, nor could they serve to inform the 27

28 Complaint for Declaratory and Injunctive Relief

13

Case 4:18-cv-02137-JSC Document 1 Filed 04/09/18 Page 14 of 26

1 United States’ immigration policy. Including information about offenses that occurred overseas

2 misleadingly inflates the number of foreign nationals Defendants can claim are responsible for
3 terrorism-related offenses, without having any bearing on terrorist threats that exist within the 4
United States, as Section 11 originally required. Defendants provide no explanation for the 5
inclusion of this information. 6
7 52. The Report also fails to provide access to readily available and nonconfidential

8 underlying aggregate data that would reveal the degree to which including overseas offenses

9 misrepresents the nexus between foreign nationals and the risk of terrorism in the United

10 States—namely the number of charges and convictions it counted for which the perpetrator’s

11 primary connection to the United States was extradition for trial.

12 53.
13

Defendants’ manipulation of data misleadingly inflates the threat posed by foreign

nationals. 14

15

The Report’s examples of foreign nationals charged with or convicted of terrorism-related

offenses are misleading and perpetuate the Administration’s discriminatory narrative that

16

Muslims are likely to commit acts of terrorism.

17 54. The Report disseminates eight purportedly “illustrative examples among the 402
18 convictions of foreign nationals or naturalized U.S. citizens.” Report at 3-7.
19 55. Each of these profiles is of a man who appears to be Muslim, either because he is from a
20 Muslim-majority country or has a Muslim-sounding name or both.
21 22 56. The individuals profiled arrived in the United States through the precise immigration
23 provisions the Administration has maligned and sought to eliminate: refugee resettlement,

24 migration preferences to support family reunification, and the visa diversity lottery.12

25

26 12 See Faiza Patel, Trump Administration’s Fuzzy Math on Terrorist Origins Is More than 27 Misleading -- It’s Dishonest, Just Security (Jan. 16, 2018),
https://www.justsecurity.org/51084/trump-administrations-fuzzy-math-terrorist-origins28 Complaint for Declaratory and Injunctive Relief

14

Case 4:18-cv-02137-JSC Document 1 Filed 04/09/18 Page 15 of 26

1 57. Even though the underlying data—conviction records—is not confidential or otherwise

2 inaccessible, the Report provides no additional information or quantification for outside

3 observers to test the Departments’ doubtful assertion that these examples are “illustrative.”

4 The Report’s information relating to gender-based violence is misleading and perpetuates

5

anti-Muslim stereotypes.

6 58. Subsection (a)(iii) of Section 11 instructs Defendants to provide information regarding
7 the number and types of acts of gender-based violence against women, including so-called
8 “honor killings,” in the United States by foreign nationals.
9 59. The information provided by the Report, which purports to be responsive to this
10
11 directive, is inaccurate and misleading.

12 60. The federal government has not “recorded and tracked in an aggregated statistical manner

13 information pertaining to gender-based violence against women committed at the federal and

14 state level.”13 Nor does the federal government have reliable information regarding the
15 prevalence of so-called “honor killings.” Defendants appear not to possess any quality
16 information that is responsive to the directive of subsection (iii).
17 61. Instead, Defendants provide alternate data, which range from irrelevant to inaccurate.
18
19 62. The Report cites the average annual number of non-fatal domestic violence

20 victimizations. Although that number is significant, the data does not reveal the proportion

21 perpetuated by foreign nationals. Indeed, studies show that gender-based violence rates are 22

23

24 misleading-its-dishonest/; see also Dan Merica & Tal Kopan, Trump Demands Congress
25 Terminate Diversity Immigration Lottery, CNN (Nov. 1, 2017), 26 http://www.cnn.com/2017/11/01/politics/donald-trump-chuck-schumer-nyc-attack/index.html
(detailing President Trump’s plans to reform the immigration system). 27 13 Report at 7.
28 Complaint for Declaratory and Injunctive Relief

15

Case 4:18-cv-02137-JSC Document 1 Filed 04/09/18 Page 16 of 26
1 largely the same across all countries, a point which further casts doubt on the Report’s attempt to
2 link gender-based violence and national origin.14 3 63. The Report also presents discredited data to perpetuate the stigmatization of Muslims 4
inherent in EO 13780’s implication that “honor killings” are a significant problem in the United 5
States. The Report asserts that “a study commissioned and provided to the DOJ’s Bureau of 6 7 Justice Statistics in 2014 estimated that an average of 23-27 honor killings occur every year in 8 the United States.”15 The author of the study has, in fact, disclaimed the accuracy of its
9 conclusion, saying “it’s not terribly scientific,” a fact not disclosed by the Report. Moreover, the
10 study cited was not commissioned by the Department of Justice, but by a private organization.16 11
64. Finally, the Report also cites a study regarding the number of women and girls who may 12
be at risk for female genital mutilation, noting that the number was three times higher in 2012 13
than in 1990.17 The Report fails to explain that the study’s methodology simply correlates the 14 15 risk of female genital mutilation in various countries to the number of women and girls living in
16 the United States who were born in that country or who lived with a parent born in that
17 country.18 In short, the study simply tracks immigration rates, and explicitly does not present
18
19 14 See, e.g., K.M. Devries et al., The Global Prevalence of Intimate Partner Violence Against 20 Women, 340 Sci. 1527, 1527, 1528 (June 28, 2013) (estimating that 30 percent of women aged
15 and over have experienced domestic violence and that though there are some slight regional 21 variations, the rates exceed 19 percent everywhere in the world except East Asia). 22 15 Report at 8.
16 Jesse Singal, Here’s What the Research Says About Honor Killings in the U.S., N.Y. Magazine 23 (Mar. 6, 2017), http://nymag.com/daily/intelligencer/2017/03/heres-what-the-research-says24 about-american-honor-killings.html.
17 Report at 8. 25
18 Id. at 8 n.17 (citing Howard Goldberg et al., Female Genital Mutilation/Cutting in the United 26 States: Updated Estimates of Women and Girls at Risk, 2012, 131 Public Health Reports 340-47
(2016), available at http://journals.sagepub.com/doi/pdf/10.1177/ 27 003335491613100218). 28 Complaint for Declaratory and Injunctive Relief
16

Case 4:18-cv-02137-JSC Document 1 Filed 04/09/18 Page 17 of 26

1 “scientifically valid information” about the behavior of those immigrant populations in the

2 United States.

3 The Report’s role in the Administration’s larger campaign to target immigrant and Muslim

4

communities.

5 65. The Report’s misleading and biased presentation of the threat of violent extremism that

6 immigrants, especially Muslim immigrants, pose to the United States is consistent with the views

7 of the President and Defendants.

8 66.
9

During his campaign, then-candidate Trump infamously called for “a total and complete

shutdown of Muslims entering the United States,” stating further “[i]t is obvious to anybody that 10

11 the hatred is beyond comprehension. . . . [O]ur country cannot be the victims of horrendous

12 attacks by people that believe only in Jihad, and have no sense of reason or respect for human

13 life.” He later stated that “Islam hates us,” and that “[w]e can’t allow people coming into the

14 country who have this hatred.”19
15 67. The Fourth Circuit later relied on these and other statements in concluding that there is a
16 compelling case that EO 13780’s primary purpose was to target Muslims, noting that “[t]hen-
17 candidate Trump’s campaign statements reveal that on numerous occasions, he expressed anti-
18
19 Muslim sentiment, as well as his intent, if elected, to ban Muslims from the United States.”20

20 68. After becoming President, President Trump re-tweeted anti-Muslim videos from a far-

21 right British activist, which were titled: “Muslim migrant beats up Dutch boy on crutches!”; 22

23 19 Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 594 (4th Cir.), as amended (May 31,
24 2017), as amended (June 15, 2017), cert. granted, 137 S. Ct. 2080, and vacated and remanded sub nom. Trump v. Int’l Refugee Assistance, 138 S. Ct. 353 (2017). See also Washington v.
25 Trump, 847 F.3d 1151, 1167 (9th Cir.), reconsideration en banc denied, 853 F.3d 933 (9th Cir.), 26 reconsideration en banc denied, 858 F.3d 1168 (9th Cir.), and cert. denied sub nom. Golden v.
Washington, 138 S. Ct. 448 (2017). 27 20 Id.
28 Complaint for Declaratory and Injunctive Relief

17

Case 4:18-cv-02137-JSC Document 1 Filed 04/09/18 Page 18 of 26
1 “Muslim destroys a statue of Virgin Mary!”; and “Islamist mob pushes teenage boy off roof and
2 beats him to death!”21 The videos were misleading and drew wide condemnation, but the White
3 House defended the President’s actions, with the Press Secretary saying, “[T]he threat is real, 4
and that is what the president is talking about.”22 5
69. President Trump has also repeatedly argued, inaccurately, that immigrants pose a threat 6 7 to public safety.23
8 70. Similarly, Attorney General Sessions recently relied on a single outlier study of
9 questionable methodology to claim that, despite the vast body of research showing that crime
10 tends to decrease in areas where immigrants settle24, “illegal aliens are more than twice as likely
11 to be convicted of crimes as Arizonans,” and that “[t]ens of thousands of crimes have been
12 committed in this country that would never have happened if our immigration laws were
13 enforced and respected like they ought to be.”25
14
15
16
17 21 Ashley Parker & John Wagner, Trump Retweets Inflammatory and Unverified Anti-Muslim Videos, Wash. Post (Nov. 29, 2017), https://www.washingtonpost.com/news/post-
18 politics/wp/2017/11/29/trump-retweets-inflammatory-and-unverified-anti-muslim19 videos/?utm_term=.1a55596e88c1.
22 Id. 20 23 Salvador Rizzo, Trump’s Claim That Immigrants Bring ‘Tremendous Crime’ Is Still Wrong, 21 Wash. Post (Jan. 18, 2018), https://www.washingtonpost.com/news/fact-
checker/wp/2018/01/18/trumps-claim-that-immigrants-bring-tremendous-crime-is-still22 wrong/?utm_term=.20ec4a0e8626. 23 24 Salvador Rizzo, Questions Raised About Study That Links Undocumented Immigrants to
Higher Crime, Wash. Post (Mar. 21, 2018), https://www.washingtonpost.com/news/fact24 checker/wp/2018/03/21/questions-raised-about-a-study-that-links-undocumented-immigrants-to-
higher-crime/?utm_term=.5b04d784c153. 25
25 Press Release, U.S. DOJ, Attorney General Sessions Delivers Remarks on National Security 26 and Immigration Priorities of the Administration (Jan. 26, 2018),
https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-national27 security-and-immigration-priorities.
28 Complaint for Declaratory and Injunctive Relief
18

Case 4:18-cv-02137-JSC Document 1 Filed 04/09/18 Page 19 of 26

1 71. And Homeland Security Secretary Nielsen recently stated that even though the number of

2 unlawful entries to the United States was at historically low levels, still it “is an unacceptable

3 risk to public safety and national security.”26

4 72.
5

Consistent with these views, the Administration is using the Report to support its

attempts to restrict lawful immigration and its ongoing stigmatization of Muslims. 6

7 73. For example, the White House issued a statement that the Report shows that “our current

8 immigration system jeopardizes American security” and used the Report to justify its calls to end

9 the visa lottery and migration preferences to support family reunification.27

10 74. Similarly, Attorney General Sessions stated that the Report “reveals an indisputable
11 sobering reality—our immigration system has undermined our national security and public
12 safety.”28
13 75. In her statement on the Report’s release, Homeland Security Secretary Nielsen said that it
14
15 “is a clear reminder of why we cannot continue to rely on immigration policy based on pre-9/11

16 thinking that leaves us woefully vulnerable to foreign-born terrorists, and why we must examine

17 our visa laws and continue to intensify screening and vetting of individuals traveling to the
18 United States to prevent terrorists, criminals, and other dangerous individuals from reaching our 19
country.”29 20

21

22 26 Written Testimony of DHS Secretary Nielsen Before the U.S. Senate Committee on the
23 Judiciary (Jan. 16, 2018), https://www.judiciary.senate.gov/imo/media/doc/01-1618%20Nielsen%20Testimony.pdf.
24 27 Fact Sheet, White House, Our Current Immigration System Jeopardizes American Security 25 (Jan. 16, 2018), https://www.whitehouse.gov/briefings-statements/current-immigration-system-
jeopardizes-american-security/. 26 28 DOJ Press Release, supra note 8.
27 29 Id.
28 Complaint for Declaratory and Injunctive Relief

19

Case 4:18-cv-02137-JSC Document 1 Filed 04/09/18 Page 20 of 26

1 76. She also warned the Senate Judiciary Committee that the Report was “just the tip of the

2 iceberg.” She then repeated the conclusion that supposedly three-fourths of individuals convicted

3 of international terrorism in U.S. federal courts were foreign-born in her testimony in January
4 2018 as part of her justification for the travel ban against nationals of six Muslim-majority
5 countries.30
6

7

The Report’s use in public discourse and its harmful effects on Muslim communities.

8 77. The Report has also—and predictably—been widely used to promote anti-Muslim, anti-

9 immigrant rhetoric by commentators in the public sphere. In the days following its publication, it

10 was described in news outlets as “linking terrorism with our broken immigration system, full of
11 holes.”31 On one of the most-watched television news programs in the country,32 the host 12
described the Report as showing that “America’s terror threat is clearly . . . an immigration 13

14

15 30 Anna Giaritelli, DHS Chief: Foreign-born Have Made Up 3 in 4 of International Terrorism

16 Convictions in US Courts Since Sept. 11 Attacks, Wash. Examiner (Jan. 16, 2018), http://www.washingtonexaminer.com/dhs-chief-foreign-born-have-made-up-3-in-4-of-

17 international-terrorism-convictions-in-us-courts-since-sept-11-attacks/article/2646031; see also

Testimony of Secretary Kirstjen Nielsen, Homeland Security Oversight, C-Span (Jan. 16, 2018), 18 https://www.c-span.org/video/?439257-1/homeland-security-secretary-kirstjen-nielsen-faces-

19 questions-daca.

31 Fox News @ Night – Shannon Bream – January 16, 2018 – Archive, YouTube (Jan. 17, 2017), 20 https://www.youtube.com/watch?v=OaJmY2WoEb8 (at 1:54); see also Special Report with Bret

21

Baier 1/16/18 | Special Report Fox News Tuesday January 16, 2018, YouTube (Jan. 16, 2018), https://www.youtube.com/watch?v=pa4jJOJ4xjw (at 13:20); Fox News @ Night – Shannon

22 Bream – January 16, 2018 – Archive, YouTube (Jan. 17, 2017), https://www.youtube.com/watch?v=OaJmY2WoEb8 (at 1:54 and 6:40);

23

24 32 A.J. Katz, January 2018 Ratings: Fox News Is Cable News’ Most-Watched Network For 16

Years Straight, TV Newser (Jan. 30, 2018), http://www.adweek.com/tvnewser/january-201825 ratings-fox-news-is-now-cable-newss-most-watched-network-for-16-straight-years/356285;

26

Mark Joyella, Is Tucker Carlson The New King Of Cable News?, Forbes (May 31, 2017), https://www.forbes.com/sites/markjoyella/2017/05/31/is-tucker-carlson-the-new-king-of-

27 cable-news/#7c7f84985370.

28 Complaint for Declaratory and Injunctive Relief

20

Case 4:18-cv-02137-JSC Document 1 Filed 04/09/18 Page 21 of 26

1 issue.”33 And multiple think tanks and commentators seized upon the Report as an opportunity to

2 promote anti-Muslim, anti-immigrant rhetoric and policies.34
3 78. The damaging stigma the Report has caused is further amplified by an entirely 4
foreseeable mischaracterization of its findings. The Report found (misleadingly) that 73 percent 5
of all individuals convicted of international terrorism-related offenses were foreign-born. But 6
7 numerous government officials and anti-immigrant outlets have stated that 73 percent of

8 individuals convicted of all terrorism-related offenses were foreign-born. For example, President

9 Trump tweeted on its release date that the report “shows that nearly 3 in 4 individuals convicted

10 of terrorism-related charges are foreign-born.”35 On the same day, House Judiciary Chairman
11 Bob Goodlatte stated that “[o]f the 549 terror-related convictions since the attacks on September
12

13

14

15 33 Attorney General Jeff Sessions and Tucker Carlson Discuss Immigration – MGTOW, YouTube
16 (Jan. 18, 2018), https://www.youtube.com/watch?v=o_244_Rf-Co (at 0:22).

17 34 See, e.g., David Horowitz, Man up, DC! Immigrants are 73 percent of terrorism convictions,
Conservative Review (Jan. 17, 2018), https://www.conservativereview.com/articles/man-dc18 immigrants-73-percent-terrorism-convictions/; Hans A. von Spakovsky, The importance of 19 public safety and national security in the immigration debate, Fox News (Jan. 25, 2018),
http://www.foxnews.com/opinion/2018/01/25/importance-public-safety-and-national-security-in20 immigration-debate.html; Andrew R. Arthur, We Need Better Vetting, Better Screening, and
Better Laws, Center for Immigration Studies (Jan. 16, 2018), https://cis.org/Arthur/We-Need21 Better-Vetting-Better-Screening-and-Better-Laws; Kevin Daley, Defending The Travel Ban Just
Got A Little Easier, The Daily Caller (Jan. 16, 2018), http://dailycaller.com/2018/01/16/dhs22 report-may-help-travel-ban-defense/.

23 35 Donald J. Trump, Twitter (Jan. 16, 2018),

24 https://twitter.com/realDonaldTrump/status/953406423177859073?ref_src=twsrc%5Etfw&ref_u

rl=http%3A%2F%2Fnymag.com%2Fdaily%2Fintelligencer%2F2018%2F01%2Ftrumps-plan-to25 end-chain-migration-isnt-populist.html&tfw_creator=ericlevitz&tfw_site=intelligencer; see also

26

Salvador Rizzo, President Trump’s claim that ‘nearly 3 in 4’ convicted of terrorism are foreignborn, Washington Post (Jan. 22, 2018), https://www.washingtonpost.com/news/fact-

27 checker/wp/2018/01/22/president-trumps-claim-that-nearly-3-in-4-convicted-of-terrorism-areforeign-born/?utm_term=.2df7ec64132c.

28 Complaint for Declaratory and Injunctive Relief

21

Case 4:18-cv-02137-JSC Document 1 Filed 04/09/18 Page 22 of 26
1 11, 2011, 75% of those convicted were foreign born.”36 And Attorney General Sessions stated in
2 an appearance on a television news program: “we know that . . . 73% of the people who’ve been
3 arrested for terrorism came here—were born abroad.”37 This was repeated in articles published 4
by numerous media outlets and think tanks, which ran headlines such as: “3 out of 4 convicted of 5
terrorism are immigrants”38 and “DHS and DOJ Report: 73 percent of Convicted Terrorists Were 6 7 Foreign-born.”39 Because the Report was presented as purportedly responsive to the
8 requirements of Section 11 of EO 13780—which requires an analysis of all terrorism-related
9 offenses—that mischaracterization was a predictable outcome of the Report and the agencies’
10 statements about it. 11
79. By contributing to the stigmatization of Muslims, the Report is also likely to contribute to 12
increases in associated hate speech and violence. As many experts have noted, public rhetoric 13
and policies targeting a disfavored group correlate with increases in violence targeting those 14 15 groups. 40 And in fact, multiple reports have found significant increases in hate incidents against
16
17 36 Press Release, Congressman Bob Goodlatte, Goodlatte Statement on DOJ/DHS Report on 18 Immigration and National Security, Jan. 16, 2018, https://judiciary.house.gov/press-
release/goodlatte-statement-doj-dhs-report-immigration-national-security/. 19
37 Attorney General Jeff Sessions and Tucker Carlson Discuss Immigration – MGTOW, YouTube 20 (Jan. 18, 2018), https://www.youtube.com/watch?v=o_244_Rf-Co (at 5:26).
21 38 Daniel Greenfield, 3 out of 4 convicted of terrorism are immigrants, FrontPage Mag (Jan. 16, 2018), https://www.frontpagemag.com/point/269046/3-out-4-convicted-terrorism-are-
22 immigrants-daniel-greenfield. 23
39 DHS and DOJ Report: 73 percent of Convicted Terrorists Were Foreign-born, NumbersUSA 24 (Jan. 16, 2018), https://www.numbersusa.com/news/dhs-and-doj-report-73-percent-convicted-
terrorists-were-foreign-born. 25
40 See Brian Levin, Explaining the rise in hate crimes against Muslims in the US, The 26 Conversation (July 19, 2017), https://theconversation.com/explaining-the-rise-in-hate-crimes27 against-muslims-in-the-us-80304 (“the rhetoric politicians use after terrorist attacks is correlated
closely to sharp increases…in hate crimes”); Responses to the Increase in Religious Hate 28 Complaint for Declaratory and Injunctive Relief
22

Case 4:18-cv-02137-JSC Document 1 Filed 04/09/18 Page 23 of 26

1 Muslims and persons perceived to be Muslim since the beginning of Trump’s presidential

2 campaign and especially since the beginning of his presidency,41 and one report found an explicit

3 correlation to this administration’s anti-Muslim policies or slogans.42 If left uncorrected, the
4 Report is likely to contribute to this increase in violence and stigmatization experienced by
5 Muslim communities.
6

7

Plaintiff’s Petition

8 80. On January 29, 2018, Plaintiff sent a petition to DOJ and DHS setting forth the ways in

9 which the Report violates IQA Guidelines on information quality, as set forth in the preceding

10 paragraphs, and requesting a retraction of the Report. See Att. A. 11

12

13 Crimes; Hearing Before the S. Comm. On the Judiciary, 115th Cong. 5 (2017) (statement of Vanita Gupta, President, Leadership Conference on Civil and Human Rights),
14 http://bit.ly/2xa29Bp (“Policies singling out protected groups can normalize hate and legitimize

hate-motivated violence directed at Muslims or people perceived to be Muslim.”). 15
41 See, e.g., CAIR Report Shows 2017 on Track to Becoming One of Worst Years Ever for Anti-

16 Muslim Hate Crimes, Council On Am.–Islamic Relations (July 17, 2017), http://bit.ly/2uCpFqR

(reporting a 91 percent increase in the number of anti-Muslim hate crimes during the first half of 17 2017); Christopher Ingraham, American Mosques—and American Muslims—Are Being Targeted

18

for Hate Like Never Before, Wash. Post (Aug. 8, 2017), http://wapo.st/2x3nCty (documenting at least 85 anti-Muslim incidents at mosques during the first half of 2017); Katayoun Kishi,

19 Assaults against Muslims in U.S. surpass 2001 level, Pew Research Center (Nov. 15, 2017), http://www.pewresearch.org/fact-tank/2017/11/15/assaults-against-muslims-in-u-s-surpass-2001-

20 level/; Chris Fuchs, Reported anti-Muslim hate incidents, rhetoric rose in year after election,

report finds, NBC News (Feb. 1, 2018), https://www.nbcnews.com/news/asian-america/reported21 anti-muslim-hate-incidents-rhetoric-rose-year-after-election-n843671; Laura Pitter, Hate Crimes

22 Against Muslims in US Continue to Rise in 2016, Human Rights Watch (May 11, 2017), https://www.hrw.org/news/2017/05/11/hate-crimes-against-muslims-us-continue-rise-2016.

23 42 See Report: Communities on Fire: Confronting Hate Violence and Xenophobic Political

24

Rhetoric, South Asian Americans Leading Together (SAALT), https://tinyurl.com/ycllxzd2 (documenting 302 incidents of hate incidents directed at Muslim, Arab, and South Asian

25 individuals between November 2016 and November 2017, an over 45 percent increase from the previous year; finding that 82 percent of those incidents were motivated by anti-Muslim

26 sentiment, that more than 213 involved actual violence (a 64 percent increase over the preceding

year); and reporting that almost 1 in 5 of these incidents involved perpetrators who specifically 27 invoked President Trump’s name, policies, or campaign slogans.

28 Complaint for Declaratory and Injunctive Relief

23

Case 4:18-cv-02137-JSC Document 1 Filed 04/09/18 Page 24 of 26

1 81. In the Petition, Plaintiff also explained that it is an “affected person” within the meaning

2 of the IQA and its implementing Guidelines because, among other reasons,

3

Muslim Advocates works to ensure that policies enacted under the banner of

4

national security do not wrongfully discriminate against Muslims and are not

based on inaccurate or misleading information.

5

Muslim Advocates uses reliable information concerning the American

6

immigration population in its work, and it, as well as its clients, is also “harmed”

by the dissemination of the Report, which seeks to portray immigrants, and

7

particularly Muslim immigrants, as inherently violent and likely to commit acts of

8

terror. Moreover, the Report serves as a mechanism to justify the travel and

refugee bans, which the Administration has attempted to justify, at least in part,

9

by reference to the kinds of inaccurate data and biased findings contained in the

Report. The Report serves as further post hoc justification for those efforts,

10

which directly harm Muslim Advocates and its clients.

11 82. The petition was sent via email and Federal Express. The Federal Express delivery

12 arrived on January 30, 2018.

13 83.
14

Under both DOJ and DHS Guidelines, Defendants have 60 calendar days to respond for a

request for correction or to notify the requestor that additional time is needed. 15

16 84. As of the date of filing, Plaintiff has not received any communication from either

17 Defendant.

18

Claim for Relief: Violation of the Administrative Procedure Act

19 85. Plaintiff hereby incorporates all allegations in the above paragraphs as if fully set forth
20 herein.
21 86. The IQA, OMB’s IQA Guidelines, and DOJ and DHS’s IQA Guidelines require that
22
23 information disseminated by agencies meet a requisite level of quality.

24 87. The Report is information disseminated by Defendants within the meaning of the IQA

25 and its implementing Guidelines.

26

27

28 Complaint for Declaratory and Injunctive Relief

24

Case 4:18-cv-02137-JSC Document 1 Filed 04/09/18 Page 25 of 26

1 88. The Report fails the objectivity and utility requirements of information quality; instead, it

2 presents information in a deceptive, misleading, and incomplete manner to artificially inflate the
3 threat that immigrants and Muslims pose to the United States. 4
89. Defendants were required to respond to Plaintiff’s Petition setting forth the ways in 5
which the Report does not meet the IQA and its implementing Guidelines’ requirements as to 6
7 information quality.
8 90. Defendants have failed to respond to Plaintiff’s Petition within the required timeframe.

9 91. Defendants’ failure to respond to Plaintiff’s Petition violates the IQA and its

10 implementing Guidelines, and is therefore arbitrary, capricious, an abuse of discretion, not in
11 accordance with law, without observance of procedure required by law, and otherwise violative
12 of the APA, 5 U.S.C. § 706(2).
13 92. Defendants’ ongoing dissemination of the Report violates the IQA and its implementing
14
15 Guidelines, and is therefore arbitrary, capricious, an abuse of discretion, not in accordance with

16 law, and otherwise violative of the APA, 5 U.S.C. § 706(2).

17

Prayer for Relief

18 WHEREFORE, Plaintiff prays that this Court grant the following relief:

19 1. Declare that the Report disseminates information that fails the standard of quality
20 required of federal agencies;
21

22

2. Declare that Defendants violated the IQA, its implementing Guidelines, and the APA;

23

3. Enjoin Defendants to cease dissemination of the Report;

24

4. Enjoin Defendants to respond to Plaintiff’s Petition;

25

5. Award Plaintiff its costs, reasonable attorneys’ fees, and other disbursements incurred in

26

this action; and

27

28 Complaint for Declaratory and Injunctive Relief

25

Case 4:18-cv-02137-JSC Document 1 Filed 04/09/18 Page 26 of 26

1

6. Grant such other relief as the Court may deem just and proper.

2 Date: April 9, 2018 3 4 5 6 7 8 9 10 11 12

Respectfully submitted,
/s/ Matthew Callahan_________________ Matthew Callahan (CA Bar No. 307782) Muslim Advocates P.O. Box 71080 Oakland, CA 94612 (415) 692-1484 matthew@muslimadvocates.org
Johnathan Smith (D.C. Bar No. 1029373)* Sirine Shebaya (D.C. Bar No. 1019748)* Muslim Advocates P.O. Box 66408 Washington, DC 20035 (202) 879-2622 johnathan@muslimadvocates.org sirine@muslimadvocates.org

13

Robin F. Thurston (D.C. Bar No. 1531399)*

Democracy Forward Foundation

14

P.O. Box 34553

15

Washington, DC 20043

(202) 448-9090

16

rthurston@democracyforward.org

17

*pro hac vice application forthcoming

18

19

20

21

22

23

24

25

26

27

28 Complaint for Declaratory and Injunctive Relief

26

 
 Case 3:18-cv-02137-JSC Document 2 4 Filed 08/23/18 Page 1 of 3 
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 Case 3:18-cv-02137-JSC Document 49 Filed 07/19/19 Page 1 of 20

United States District Court Northern District of California

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7

8

MUSLIM ADVOCATES,

9

Plaintiff,

10

v.

Case No.18-cv-02137-JSC
ORDER RE: DEFENDANTS’ MOTION TO DISMISS

11

U.S. DEPARTMENT OF JUSTICE, et al.,

Re: Dkt. No. 40

12

Defendants.

13

Plaintiff Muslim Advocates sues Defendants the U.S. Department of Justice (“DOJ”) and

14 the U.S. Department of Homeland Security (“DHS”) (collectively, “Defendants”) under the

15 Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq, for violation of the Information 16 Quality Act, 44 U.S.C. § 3516 (“IQA”). (Dkt. No. 37.)1 Now before the Court is Defendants’

17 motion to dismiss the first amended complaint (“FAC”) pursuant to Federal Rule of Civil

18 Procedure 12(b)(1) for lack of subject matter jurisdiction and, alternatively, pursuant to Rule 19 12(b)6) for failure to state a claim upon which relief may be granted.2 (Dkt. No. 40.) After

20 careful consideration of the parties’ briefing, and having had the benefit of oral argument on June

21 20, 2019, the Court GRANTS Defendants’ Rule 12(b)(6) motion because Plaintiff’s claim

22 premised on alleged violations of the IQA is not subject to judicial review under the APA.

23 //

24 //

25 //

26

27

1 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents.

28

2 All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). (Dkt. Nos.

Case 3:18-cv-02137-JSC Document 49 Filed 07/19/19 Page 2 of 20

United States District Court Northern District of California

1

BACKGROUND

2 I. Relevant Statutory and Factual Background3

3

A. The Information Quality Act and Implementing Guidelines

4

The IQA “was included as a brief note to the Consolidated Appropriations Act of 2001,

5 Pub. L. No. 106-554, 114 Stat. 2763 (2000),” (codified at 44 U.S.C. 3516 note (Paperwork

6 Reduction Act Guidelines)). Harkonen v. U.S. Dep’t of Justice, 800 F.3d 1143, 1145 (9th Cir.

7 2015). The statute directs the Office of Management and Budget (“OMB”) to “‘issue guidelines . .

8 . that provide policy and procedural guidance to Federal agencies for ensuring and maximizing the

9 quality, objectivity, utility, and integrity of information (including statistical information)

10 disseminated by Federal agencies in fulfillment of the purposes and provisions of . . . the

11 Paperwork Reduction Act.’” Id. (quoting 44 U.S.C. 3516 note). The IQA’s focus “is on the

12 quality of information shared by federal agencies, and on ensuring broad access to information.”

13 Id. at 1148.

14

The IQA directs that the content of OMB’s guidelines shall:

15

(1) apply to the sharing by Federal agencies of, and access to,

information disseminated by Federal agencies; and 16

(2) Require that each Federal agency to which the guidelines apply— 17

(A) issue guidelines ensuring and maximizing the quality, 18

19 3 Courts ordinarily do not look beyond the four corners of the complaint when considering a

20

motion to dismiss. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). “A court may, however, consider certain materials—documents attached to the complaint, documents

21

incorporated by reference in the complaint, or matters of judicial notice—without converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903,

22

908 (9th Cir. 2003). Under Federal Rule of Evidence 201(b), “court[s] may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s

23

territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Here, the complaint includes as exhibits

24

correspondence to and from DOJ and DHS regarding the government report at issue and Plaintiff’s subsequent request for correction of that report under the IQA. (Dkt. No. 37, Exs. A-

25

N.) Thus, those documents are properly before the Court. Defendants request that the Court also “take judicial notice of the Initial Section 11 Report, which is available on the DHS website,” and

26

cited in the FAC. (Dkt. No. 40 at 14 n.1 (citing Dkt. No. 37 at ¶ 38 n.8).) Because the Section 11 Report is cited in the complaint and indeed forms the basis for Plaintiff’s APA claim, it is properly

27

before the Court under the incorporation-by-reference doctrine. Further, the Section 11 Report is judicially noticeable under Rule 201(b). See Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994)

28

(noting that district courts may take judicial notice of “[r]ecords and reports of administrative bodies”).

2

Case 3:18-cv-02137-JSC Document 49 Filed 07/19/19 Page 3 of 20

United States District Court Northern District of California

objectivity, utility, and integrity of information (including

1

statistical information) disseminated by the agency, by not

later than 1 year after the date of issuance of the guidelines

2

under subsection (a);

3

(B) establish administrative mechanisms allowing affected

persons to seek and obtain correction of information

4

maintained and disseminated by the agency that does not

comply with the guidelines issued under subsection (a); and 5

(C) Report periodically to the director— 6

(i) the number and nature of complaints received by

7

the agency regarding the accuracy of information

disseminated by the agency; and 8

(ii) how such complaints were handled by the agency 9

10 44 U.S.C. 3516 note. The IQA does not expressly provide for judicial review of information

11 disseminated by Federal agencies, or otherwise provide a private right of action.

12

1. OMB Guidelines

13

OMB issued its final guidelines pursuant to the IQA in February 22, 2002. See Guidelines

14 for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information

15 Disseminated by Federal Agencies, 67 Fed. Reg. 8452 (Feb. 22, 2002). The guidelines set forth

16 four central duties that agencies must undertake: (1) “adopt a basic standard of quality (including

17 objectivity, utility, and integrity)” that is “to be ensured and established at levels appropriate to the

18 nature and timeliness of the information . . . disseminated,” as well as specific quality standards

19 “for the various categories of information”; (2) develop a quality review process to ensure the

20 “objectivity, utility, and integrity[ ] of information before it is disseminated”; (3) “establish

21 administrative mechanisms allowing affected persons to seek and obtain, where appropriate,

22 timely correction of information maintained and disseminated by the agency that does not comply

23 with OMB or agency guidelines,” as well as “an administrative appeal process” for “requests for

24 reconsideration” of agency decisions; and (4) submit to OMB a report detailing the agency’s

25 information quality guidelines and thereafter submit a yearly report regarding any complaints the

26 agency receives related to its compliance with OMB’s Guidelines. 67 Fed. Reg. at 8458-59.

27 //

28 // 3

Case 3:18-cv-02137-JSC Document 49 Filed 07/19/19 Page 4 of 20

United States District Court Northern District of California

1

2. DOJ Guidelines

2

DOJ issued its guidelines (“DOJ Guidelines”) in October 2002 in response to OMB’s

3 directive. See U.S. Dep’t of Justice, DOJ Information Quality Guidelines,

4 https://www.justice.gov/information-quality. The DOJ Guidelines track the language of the OMB

5 Guidelines, stating, in pertinent part that they “will adhere to the basic standards cited in the final

6 OMB Guidelines and focus on the following areas”: (1) “adopt[ing] a basic standard of quality

7 (including objectivity, utility, and integrity); (2) develop[ing] a process for reviewing the quality .

8 . . of information before it is disseminated; and (3) establish[ing] administrative mechanisms

9 allowing affected persons (individual or entity that may use, benefit, or be harmed by the

10 disseminated information at issue) to seek and obtain, where appropriate, timely correction of

11 information maintained and disseminated by the agency that does not comply with OMB or

12 agency guidelines.” Id.

13

The DOJ Guidelines specify that those requesting correction of information “bear the

14 ‘burden of proof’ with respect to the necessity for correction as well as with respect to the type of

15 correction they seek.” Id. DOJ will review such requests, and “[a]fter it has completed its review,

16 DOJ will determine whether a correction is warranted, and, if so, what corrective action it will

17 take.” Id. Further:

18

Any corrective action will be determined by the nature and timeliness

of the information involved and such factors as the significance of the

19

error on the use of the information and the magnitude of the error.

DOJ is not required to change, or in any way alter, the content or

20

status of information simply based on the receipt of a request for

correction. 21

22 Id. The DOJ Guidelines provide that the agency “will normally respond to requests for correction

23 of information within 60 calendar days of receipt,” and “will inform the requester that more time

24 is required” if necessary. Id. If a petitioner disagrees with the agency’s determination, it can file a

25 request for reconsideration; DOJ will respond to such requests “within 45 calendar days of

26 receipt.” Id.

27

As to their scope, the DOJ Guidelines expressly state:

28

These guidelines are not a regulation. They are not legally enforceable

4

Case 3:18-cv-02137-JSC Document 49 Filed 07/19/19 Page 5 of 20

United States District Court Northern District of California

1 2 3 Id.

and do not create any legal rights or impose any legally binding requirements or obligations on the agency or the public. Nothing in these guidelines affects any otherwise available judicial review of agency action.

4

3. DHS Guidelines

5

The DHS guidelines (“DHS Guidelines”) became effective on March 18, 2011. See U.S.

6 Dep’t of Homeland Security, Information Quality Guidelines 1 (2011),

7 https://www.dhs.gov/sites/default/files/publications/dhs-iq-guidelines-fy2011.pdf. The DHS

8 Guidelines track the DOJ Guidelines in that they “adhere to the basic standards cited in the OMB

9 guidelines and focus on the [same basic] areas.”4 Id. at 2. The DHS Guidelines further track the

10 DOJ Guidelines regarding requests for correction; specifically, they provide that: (1) the burden is

11 on the petitioner to demonstrate that the information does not comply with the DHS or OMB

12 Guidelines; (2) DHS Components “should respond to requests for correction” within 60 days of

13 receipt, and notify the petitioner if the request “requires an extended period of time for

14 processing”; and (3) DHS components “should develop an administrative appeals process”

15 regarding requests for correction and respond to such appeals within 60 days. Id. at 6, 8. Further:

16

In making determinations of whether or not to correct information,

[DHS] Components may reject claims made in bad faith or without

17

justification. [DHS] Components need undertake only the degree of

correction that they conclude is appropriate for the nature and

18

timeliness of the information involved and explain such practices in

their annual fiscal year reports to DHS. 19

20 Id. at 6. Also like the DOJ Guidelines, the DHS Guidelines expressly limit their enforceability:

21

The guidelines are not intended to be, and should not be construed as,

legally binding regulations or mandates. These guidelines are

22

intended only to improve the internal management of DHS and,

therefore, are not legally enforceable and do not create any legal rights

23

or impose any legally binding requirements or obligations on the

24

25

4 As with the DOJ Guidelines, the stated focus of the DHS Guidelines is on: (1) “a basic standard of quality (including objectivity, utility, and integrity)”; (2) developing “a process for reviewing

26

the quality . . . of information before it is disseminated”; and (3) establish[ing] administrative mechanisms allowing affected persons (individual or entity that may use, benefit, or be harmed by

27

the disseminated information at issue) to seek and obtain, where appropriate, timely correction of information maintained and disseminated by the agency that does not comply with OMB or

28

agency guidelines.” See U.S. Dep’t of Homeland Security, Information Quality Guidelines 2 (2011), https://www.dhs.gov/sites/default/files/publications/dhs-iq-guidelines-fy2011.pdf.

5

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1 2 Id.

agency or the public. Nothing in these guidelines affects any available judicial review of agency action.

3

B. Executive Order No. 13780

4

On March 6, 2017, the President of the United States signed Executive Order No. 13780,

5 Protecting the Nation from Foreign Terrorist Entry into the United States. 82 Fed. Reg. 13209

6 (Mar. 6, 2017). The order “temporarily restricted the entry (with case-by-case waivers) of foreign

7 nationals from six countries”—Iran, Libya, Somalia, Sudan, Syria, and Yemen—“because each ‘is

8 a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or

9 contains active conflict zones.’” Trump v. Hawaii, 138 S. Ct. 2392, 2404 (2018) (quoting Exec.

10 Order No. 13780, § 1(d), 82 Fed. Reg. at 13210). Section 11 of the order directed “the Secretary

11 of Homeland Security, in consultation with the Attorney General,” to “collect and make publicly

12 available the following information” for purposes of public transparency:

13

(i) information regarding the number of foreign nationals in the

United States who have been charged with terrorism-related offenses

14

while in the United States; convicted of terrorism-related offenses

while in the United States; or removed from the United States based

15

on terrorism-related activity, affiliation with or provision of material

support to a terrorism-related organization, or any other national-

16

security-related reasons;

17

(ii) information regarding the number of foreign nationals in the

United States who have been radicalized after entry into the United

18

States and who have engaged in terrorism-related acts, or who have

provided material support to terrorism-related organizations in

19

countries that pose a threat to the United States;

20

(iii) information regarding the number and types of acts of gender-

based violence against women, including so-called “honor killings,”

21

in the United States by foreign nationals; and

22

(iv) any other information relevant to public safety and security as

determined by the Secretary of Homeland Security or the Attorney

23

General, including information on the immigration status of foreign

nationals charged with major offenses. 24

25 Exec. Order No. 13780, § 11, 82 Fed. Reg. at 13217.

26

C. The Section 11 Report

27

As directed, in January 2018 DOJ and DHS issued a joint report responsive to Section 11

28 of the Executive Order. See U.S. Dep’t of Justice & U.S. Dep’t of Homeland Sec., Executive 6

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1 Order 13780: Protecting the Nation From Foreign Terrorist Entry Into the United States, Initial

2 Section 11 Report (Jan. 2018) (the “Report”).5 The Report notes, in pertinent part:

3

[S]ubsequent to the issuance of Executive Order 13780, the

Department of Homeland Security (DHS) and the Department of

4

Justice (DOJ) worked collaboratively to provide information

responsive to the requirements of Section 11. Unless specified

5

otherwise, this initial report includes information for the period from

September 11, 2001 until the date of issuance. Notably, however,

6

because of previous information collection and reporting practices of

DHS and DOJ, some of the information provided in this initial report

7

does not capture the full spectrum of statistics envisioned by

Executive Order 13780. DHS and DOJ will endeavor to provide

8

additional information in future reports issued pursuant to the

requirements of Executive Order 13780. 9

10 Id. at 1. The Report addresses the four previously-discussed substantive categories of information

11 outlined in the Executive Order. See id. at 2-10.

12

D. Plaintiff’s Request for Correction

13

Plaintiff petitioned DOJ and DHS for correction of the Report on January 29, 2018. (Dkt.

14 Nos. 37 at ¶ 85 & 37-2, Ex. B.) The petition cites five categories of information as deliberately

15 misleading and biased and thus in violation of the IQA. First:

16

Section 11 directed the Departments to provide information related to

foreign nations and terrorism-related offenses, which the Executive

17

Order claimed would be used to inform the country’s immigration

policy. Instead, the Report provided information regarding foreign-

18

born individuals rather than foreign nationals, which allows it to

attribute 73 percent of international terrorism-related offenses to

19

individuals who the Departments apparently perceive as foreign,

despite their American citizenship. 20

21 (Dkt. No. 37-2, Ex. B at 7.) Second, “[t]he Report’s substitution of international terrorism for all

22 terrorism misleadingly ignores domestic terrorism, artificially inflating the proportion of terrorist

23 incidents committed by foreign nationals.” (Id. at 8.) Third, “[t]he Report’s inclusion of

24 individuals who committed terrorism overseas and whose only apparent tie to the United States is

25 extradition to the United States for prosecution.” (Id. at 9.) Fourth, “[t]he Report’s examples of

26

27 5

28

https://www.dhs.gov/sites/default/files/publications/Executive%20Order%2013780%20Section%2 011%20Report%20-%20Final.pdf

7

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1 foreign nationals charged with or convicted of terrorism-related offenses are misleading and

2 perpetuate the Administration’s discriminatory narrative that Muslims are likely to commit acts of

3 terrorism.” (Id. at 10.) Finally, “[t]he Report’s information relating to gender-based violence is

4 misleading and perpetuates anti-Muslim stereotypes.” (Id. at 11.) Plaintiff asserted that it was an

5 “affected person” under the terms of the agency guidelines, and requested that DOJ and DHS

6 retract the Report, and if necessary, publish a revised Report correcting the deficiencies noted by

7 Plaintiff. (Id. at 12-13.)

8

DOJ and DHS separately responded in writing to Plaintiff’s petition on June 15, 2018, and

9 June 19, 2018, respectively, notifying Plaintiff that its request for correction was under review.

10 (Dkt. Nos. 37-3, Ex. C & 37-4, Ex. D.) DOJ issued its denial on July 31, 2018, addressing each of

11 Plaintiff’s five categories of concern, “determin[ing] that there is no inconsistency with the IQA

12 Guidelines,” and “conclud[ing] that neither retraction nor correction of [the Report] is required

13 under the IQA Guidelines.” (Dkt. No. 37-5, Ex. E at 4.) The denial letter notes Plaintiff’s right to

14 request reconsideration. (Id.)

15

DHS denied Plaintiff’s request for correction by letter dated August 1, 2018. (Dkt. No. 37-

16 6, Ex. F.) The letter asserts in part that Plaintiff based “much of” its request for correction “not on

17 the data in the Report itself, but on [Plaintiff’s] differing interpretation of that data, which do[es]

18 not warrant correction under the Department’s IQA guidelines.” (Id. at 3.) Thus, DHS

19 “conclude[d] that neither retraction nor correction of information in the [Report] is warranted.”

20 (Id.) DHS noted, however, that it would “take the points raised in [Plaintiff’s] request into

21 consideration in the preparation of future reports.” (Id.) The letter further notes Plaintiff’s “right

22 to an administrative appeal.” (Id. at 4.)

23

E. Plaintiff’s Requests for Reconsideration

24

On September 13, 2018, Plaintiff filed separate but identical requests for reconsideration of

25 the DOJ and DHS denials, asserting that “[t]he Report must be corrected because the information

26 it presents inflates the proportion of terrorist events that it can attribute to immigrants, especially

27 Muslim men,” and restating that the five previously-discussed categories information are

28 misleading and do not meet IQA standards. (Dkt. Nos. 37-7, Ex. G at 2-13 & 37-8, Ex. H at 28

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1 13.) DOJ and DHS issued interim responses on October 24, 2018, and November 7, 2018,

2 respectively, indicating that Plaintiff’s request for reconsideration was under review. (Dkt. Nos.

3 37-9, Ex. I & 37-11, Ex. K.)

4

DOJ denied Plaintiff’s request for reconsideration by letter dated December 21, 2018.

5 (Dkt. No. 37-10, Ex. J.) DOJ’s denial letter addresses each of Plaintiff’s “five general areas of

6 concern regarding the Report,” and states, in pertinent part:

7 8 9 10 11 12 (Id. at 2.)

[T]he Department concludes on reconsideration that information in the Report could be criticized by some readers, consistent with some of the concerns voiced in your Request for Reconsideration. However, the Department also concludes that it was sufficiently transparent in its presentation of information, and as a result, the Report should not be withdrawn or corrected. Working closely with DHS, the Department will consider IQA principles in issuing future reports under Section 11 of Executive Order 13780 to better present such information to the public.

13

On December 19, 2018, DHS notified Plaintiff that DHS needed additional time to “review

14 and respond” to Plaintiff’s request for reconsideration. (Dkt. No. 37-12, Ex. L at 2.) DHS notified

15 Plaintiff on January 31, 2019 that further time was required due to a lapse in appropriations. (Dkt.

16 No. 37-13, Ex. M at 2.) On February 14, 2019, DHS denied Plaintiff’s request for reconsideration.

17 (Dkt. No. 37-14, Ex. N.) DHS’s denial letter addresses Plaintiff’s five areas of concern, and

18 states, in pertinent part:

19 20 21 22 23 (Id. at 2.)

The Department has conducted an independent review of your Request for Reconsideration and concludes that, while it will take into consideration in future Section 11 Reports those points raised in both your Requests for Correction and Reconsideration, the Section 11 Report was sufficiently transparent in its presentation of the information and meets the IQA guidelines. It therefore declines to withdraw or correct it.

24 II. Complaint Allegations and Requested Relief

25

Plaintiff is a civil rights organization located in Washington, D.C. (Dkt. No. 37 at ¶ 12

26 n.1.) It “promotes freedom and justice for Americans of all faiths, with a particular focus on

27 issues impacting Muslim communities.” (Id.) In carrying out its mission, Plaintiff “engages in

28 civil rights litigation, policy advocacy, and public education to fight inaccurate stereotypes about 9

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1 Muslims and other immigrants.” (Id.)

2

The gravamen of the FAC is that the Report “fails the objectivity and utility requirements”

3 of “[t]he IQA, OMB’s IQA Guidelines, and DOJ and DHS’s IQA Guidelines,” and instead

4 “presents information in a deceptive, misleading, and incomplete manner, and in so doing,

5 mispresents the actual terror threat to the country, artificially inflating the threat that immigrants

6 and Muslims pose to the United States.”6 (Id. at ¶¶ 108, 110; see also id. at ¶¶ 4-7, 41-84.) As a

7 result, “Defendants’ ongoing dissemination of the Report following their denials of Plaintiff[’s]

8 Petition and Appeal Petitions violates the IQA and its implementing Guidelines, and is therefore

9 arbitrary, capricious, an abuse of discretion, not in accordance with law, without observance of

10 procedure required by law, and otherwise violative of the APA, 5 U.S.C. § 706(2).” (Id. at ¶ 111.)

11

Plaintiff seeks the following relief: (1) declarations “that the Report disseminates

12 information that fails the standard of quality required of federal agencies,” and “that Defendants

13 violated the IQA, its implementing Guidelines, and the APA”; (2) an order requiring “Defendants

14 to expressly retract or correct the Report and to cease dissemination of the Report”; (3) attorneys’

15 fees and costs of suit; and (4) “such other relief as the Court may deem just and proper.” (Id. at

16 32.)

17 III. Procedural History

18

Plaintiff filed its original complaint on April 9, 2018, asserting a claim under the APA for

19 violation of the IQA. (Dkt. No. 1.) Defendants moved to dismiss the complaint on the same

20 grounds asserted in the instant motion. (See Dkt. No. 21). The parties then filed a stipulation to

21 stay the case pending Plaintiff’s administrative appeals, (Dkt. No. 25), which the Court granted,

22 (Dkt. No. 26). Plaintiff filed the FAC after completing the administrative appeals process, (Dkt.

23

24 6 Although the FAC contains allegations regarding Defendants’ processing of Plaintiff’s IQA

25

requests for correction and reconsideration, (see Dkt. No. ¶¶ 9, 90, 92-93, 99-105 (alleging inadequate or tardy responses to Plaintiff’s petitions)), the thrust of Plaintiff’s claim concerns the

26

content of the Report, (see id. at ¶ 11 (noting that despite Plaintiff’s IQA petitions, “Defendants declined to retract or correct the Report, and instead continue to disseminate it. In doing so they

27

violate the IQA and its implementing Guidelines.”)). Plaintiff’s requested relief further indicates that Plaintiff’s claim is based on the content of the Report and not inadequate processing of

28

Plaintiff’s petitions, (see id. at 32 (seeking injunctive relief requiring “Defendants to expressly retract or correct the Report and to cease dissemination of the Report”)).

10

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1 No. 37), and Defendants filed the instant motion to dismiss, (Dkt. No. 40). The motion is fully

2 briefed, (see Dkt. Nos. 41 & 44), and the Court heard oral argument on June 20, 2019.

3

DISCUSSION

4

Defendants argue that dismissal is warranted pursuant to Rule 12(b)(1) for lack of subject

5 matter jurisdiction because: (1) Plaintiff lacks standing; specifically, Plaintiff fails to satisfy the

6 injury-in-fact prong; (2) the IQA does not confer any legal rights and thus Plaintiff does not have a

7 right of action under the statute; and (3) Plaintiff’s claim is not subject to judicial review under the

8 APA. (See Dkt. No. 40 at 22-30.) Defendants argue in the alternative that dismissal is warranted

9 under Rule 12(b)(6) because Plaintiff fails to state a claim for relief under the APA. The Court

10 addresses dismissal only in the context of Rule 12(b)(6) because Defendants’ standing arguments

11 are intertwined with their 12(b)(6) arguments, and even if Plaintiff was to satisfy Article III

12 standing requirements, Plaintiff fails to state a claim under the APA.

13

A. Plaintiff Fails to State a Claim Under the APA

14

There is no dispute that the IQA does not provide a private right of action; thus, Plaintiff

15 brings its challenge under the APA. See Family Farm All. v. Salazar, 749 F. Supp. 2d 1083, 1090-

16 91 (E.D. Cal. 2010) (“A party challenging an administrative agency’s compliance with a

17 substantive statute that lacks an internal private right of action must seek judicial review under the

18 APA.”) (citing Lujan, 497 U.S. at 882). Pursuant to the APA, a plaintiff may seek judicial review

19 of agency action that is either “made reviewable by statute” or constitutes “final agency action for

20 which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Defendants assert that there

21 is no judicial review of agency IQA decisions under the APA because: (1) the IQA precludes

22 judicial review; (2) IQA determinations are “committed to agency discretion”; and (3) such

23 determinations do not constitute final agency action for APA purposes. (Dkt. No. 40 at 27-30.)

24

1. Judicial Review is Precluded under 5 U.S.C. § 701(a)(2)

25

Judicial review is precluded under the APA when the “challenged agency action is

26 committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). In general, Section 701(a)(2)

27 precludes judicial review “if the statute is drawn so that a court would have no meaningful

28 standard against which to judge the agency’s exercise of discretion.” Heckler v. Chaney, 470 U.S. 11

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1 812, 830 (1985). Thus, courts must “consider the language of the statute and whether the general

2 purposes of the statute would be endangered by judicial review.” Pinnacle Armor, Inc. v. United

3 States, 648 F.3d 708, 719 (9th Cir. 2011) (internal quotation marks and citation omitted).

4

Here, neither the IQA nor its implementing guidelines provide judicially manageable

5 standards “against which to judge an agency’s exercise of discretion” in deciding whether to grant

6 an IQA request for correction. See Heckler, 470 U.S. at 830. The IQA itself directs OMB to issue

7 guidelines to Federal agencies to aid them in ensuring “the quality, objectivity, utility, and

8 integrity” of disseminated information. 44 U.S.C. § 3516 note. The IQA provides no substantive

9 standards as to those terms. The statute further directs OMB to require Federal agencies to issue

10 their own guidelines that comply with OMB’s guidelines and set forth agency-specific

11 “administrative mechanisms allowing affected persons to seek and obtain correction of

12 information maintained and disseminated by the agency that does not comply with the [OMB]

13 guidelines.” Id. Again, the statute itself does not provide standards regarding those administrative

14 mechanisms.

15

Pursuant to the IQA, the OMB Guidelines direct agencies, in pertinent part to “establish

16 administrative mechanisms allowing affected persons to seek and obtain, where appropriate,

17 timely correction of information maintained and disseminated by the agency that does not comply

18 with OMB or agency guidelines.” 67 Fed. Reg. at 8459 (emphasis added). Further, the OMB

19 Guidelines provide that the agencies’ “administrative mechanisms shall be flexible, [and]

20 appropriate to the nature and timeliness of the disseminated information.” Id. (emphasis added).

21 As to the IQA request determination, the Guidelines state:

22

Agencies, in making their determination of whether or not to correct

information, may reject claims made in bad faith or without

23

justification, and are required to undertake only the degree of

correction that they conclude is appropriate for the nature and

24

timeliness of the information involved.

25 Id. at 8458 (emphasis added). The OMB Guidelines’ use of discretionary language (i.e., “where

26 appropriate,” “flexible,” “that they conclude is appropriate”) provides for complete agency

27 discretion in determining whether to even consider—much less grant—a party’s IQA request for

28 correction. 12

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1

The DOJ and DHS guidelines likewise provide no judicially manageable standards by

2 which to assess the propriety of their IQA determinations. The guidelines instead track the OMB

3 Guidelines and provide similar discretionary language regarding agency determinations of

4 requests for correction. See DOJ Guidelines (“Any corrective action will be determined by the

5 nature and timeliness of the information involved and such factors as the significance of the error

6 on the use of the information and the magnitude of the error. DOJ is not required to change, or in

7 any way alter, the content or status of information simply based on the receipt of a request for

8 correction.”); DHS Guidelines at 6 (“[DHS] Components need undertake only the degree of

9 correction that they conclude is appropriate for the nature and timeliness of the information

10 involved and explain such practices in their annual fiscal year reports to DHS.”).

11

Plaintiff asserts that the OMB Guidelines and relevant agency guidelines “set forth precise

12 and detailed definitions of the statute’s information quality watchwords: ‘quality’, ‘utility’;

13 ‘objectivity’; and ‘integrity’” that “provide[ ] meaningful standards for courts to apply to evaluate

14 whether an agency has properly reviewed a petition for correction.” (Dkt. No. 41 at 9, 21 (quoting

15 67 Fed. Reg. at 8459-60).) The Court disagrees.

16

Although the OMB and relevant agency guidelines contain defined terms, those terms

17 alone do not create judicially manageable standards by which a court can determine the propriety

18 of an agency’s decision regarding a petition for correction. Instead, the OMB Guidelines’ broad

19 language regarding an agency’s discretion in considering requests for correction demonstrates that

20 the application of such terms to a specific request is not a mechanical process but instead depends

21 upon the “nature and timeliness of the information involved.” See 67 Fed. Reg. at 8458 (providing

22 that agencies “are required to undertake only the degree of correction that they conclude is

23 appropriate for the nature and timeliness of the information involved”). And as previously

24 discussed, the DOJ and DHS Guidelines provide near verbatim discretionary language regarding

25 when correction is necessary. Such language does not lend itself to judicial review.

26

Plaintiff further argues that “the structure and purpose of the IQA provide an additional

27 standard against which the Court can consider Plaintiff’s APA claim.” (Dkt. No. 41 at 23 (citing

28 Page v. Donovan, 727 F.2d 866, 868 (9th Cir. 1984) (“Even if the statute is drawn broadly, review 13

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1 is not precluded if the legislative history offers standards that a reviewing court can apply.”)).)

2 Plaintiff asserts that it is implicit in the IQA “that agencies cannot exercise their discretion in a

3 manner that renders the rights of ‘affected persons’ illusory.” (Id. (citing 44 U.S.C. § 3516 note).)

4 As the Court previously concluded, however, the IQA creates no enforceable legal rights to

5 information or its correctness; thus, any procedural right created by the IQA’s directive that OMB

6 issue guidelines requiring federal agencies to “establish administrative mechanisms allowing

7 affected persons to seek and obtain correction of information,” see 44 U.S.C. § 3516 note, is not

8 tethered to a legal interest. If the IQA creates no enforceable legal right to information or its

9 correctness, then it follows that the “structure and purpose” of the IQA does not create judicially

10 manageable standards by which to judge an agency’s decision regarding a request for correction.

11

The Court’s conclusion that judicial review is precluded under § 701(a)(2) is in line with

12 other courts that have squarely addressed IQA-based APA claims and concluded that the merits of

13 such claims are not reviewable. See, e.g., Harkonen v. U.S. Dep’t of Justice, No. C-12-629 CW,

14 2012 WL 6019571, at *16 (N.D. Cal. Dec. 3, 2012) (“[T]he IQA and agency guidelines grant

15 sufficient discretion to the DOJ to preclude judicial review under the APA.”), aff’d on other

16 grounds, 800 F.3d 1143 (9th Cir. 2015); Salazar, 749 F. Supp. 2d at 1092-95 (finding IQA-based

17 APA claim precluded from judicial review under § 701(a)(2)); Ams. for Safe Access v. U.S. Dep’t

18 of Health & Human Servs., No. C 07-01049 WHA, 2007 WL 4168511, at *4 (N.D. Cal. Nov. 20,

19 2007) (“[T]he IQA and OMB guidelines do not create a duty to perform legally required actions

20 that are judicially reviewable.”), aff’d on other grounds, 399 F. App’x 314 (9th Cir. 2010); Salt

21 Inst. v. Thompson, 345 F. Supp. 2d 589, 602 (E.D. Va. 2004) (finding judicial review under the

22 APA precluded on § 701(a)(2) grounds), aff’d on other grounds sub nom. Salt Inst. v. Leavitt, 440

23 F.3d 156, 159 (4th Cir. 2006); In re Operation of the Missouri River Sys. Litig., 363 F. Supp. 2d

24 1145, 1175 (D. Minn. 2004) (same), aff’d in part and vacated in part on other grounds, 421 F.3d

25 618 (8th Cir. 2005).

26

The cases cited by Plaintiff do not counsel a different result. (See Dkt. No. 41 at 17, 19

27 (citing Zero Zone, Inc. v. U.S. Dep’t of Energy, 832 F.3d 654, 678 n.25 (7th Cir. 2016); Harkonen

28 v. U.S. Dep’t of Justice, 800 F.3d 1143, 1151 (9th Cir. 2015); Prime Time Int’l Co. v. Vilsack, 599 14

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1 F.3d 678, 686 (D.C. Cir. 2010)).) In Zero Zone, the plaintiffs challenged the U.S. Department of

2 Energy (“DOE”) “decisionmaking process and substance of . . . final rules” regarding “the energy

3 efficiency of commercial refrigeration equipment.” 832 F.3d at 660-61. The plaintiffs argued that

4 the DOE’s rulemaking violated, in part, the Energy Policy and Conservation Act and the court

5 analyzed the action under the APA. See id. at 667-68. The plaintiffs also framed one issue, which

6 the court discussed as an “alternative” argument, “as a violation of the Information Quality Act.”

7 Id. at 678 n.25. The court noted, in a footnote:

8

[The plaintiffs] frame this issue as a violation of the Information

Quality Act. See 44 U.S.C. § 3516 note (a). However, “almost every

9

court that has addressed an Information Quality Act challenge has

held that the statute ‘creates no legal rights in any third parties.’”

10

Miss. Comm’n on Envtl. Quality v. EPA, 790 F.3d 138, 184 (D.C. Cir.

2015) (quoting Salt Inst. v. Leavitt, 440 F.3d 156, 159 (4th Cir.

11

2006)). That being said, the APA still affords the petitioners the right

to bring this challenge. 12

13 Id. Plaintiff here cites Zero Zone for the proposition that “[m]ultiple Circuit Courts have

14 concluded that that IQA claims raised under the APA may be adjudicated.” (See Dkt. No. 41 at

15 17.) Nothing supports such an expansive reading of the Zero Zone footnote, however, which

16 contains that court’s lone reference to the IQA. It appears instead that the Zero Zone court

17 analyzed the particular issue characterized by the plaintiff as a violation of the IQA in the context

18 of the plaintiff’s overriding challenge to DOE’s rulemaking, which falls under the APA. Further,

19 and most importantly, the Zero Zone court did not do what Plaintiff asks the Court to do here:

20 reach the merits of an IQA challenge under the APA by deciding whether an agency’s

21 determination regarding a request for correction comports with the text of the IQA and its

22 implementing guidelines.

23

The Ninth Circuit’s decision in Harkonen is similarly unhelpful to Plaintiff. There the

24 plaintiff filed an IQA request for correction with DOJ regarding press releases it issued detailing

25 the plaintiff’s conviction for wire fraud. 800 F.3d at 1147. DOJ denied the plaintiff’s request

26 initially and on reconsideration, asserting that press releases were excluded from coverage under

27 the DOJ Guidelines. Id. The plaintiff filed suit under the APA, claiming that DOJ’s denial of his

28 request for correction under the IQA and “the exclusion of press releases from DOJ’s and OMB’s 15

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1 [IQA] Guidelines” were arbitrary and capricious, an abuse of discretion, and contrary to law.” Id.

2 The district court granted the defendants’ motion to dismiss, noting that “[c]ourts that have

3 reviewed the IQA have uniformly found that it ‘does not create any legal right to information or its

4 correctness.’” 2012 WL 6019571 at *11 (collecting cases). The district court thus concluded that

5 there was no final agency action for purposes of an APA claim, and that judicial review was

6 precluded under 5 U.S.C. § 701(a)(2). Id. at *11-17.

7

On appeal, the plaintiff and defendants set forth the exact arguments at issue here;

8 specifically, the plaintiff asserted that “the IQA imposes an obligation on the DOJ to correct

9 information disseminated by the agency, and creates a right under the APA to judicial review of

10 DOJ decisions not to correct this information.” 800 F.3d at 1148. The defendants “argue[d] that

11 the IQA does not authorize courts to review the correctness of information disseminated by an

12 agency.” Id. The Ninth Circuit did not reach those arguments, however, and instead noted that its

13 “review must begin with the threshold question of whether OMB and DOJ had the authority to

14 exclude press releases from the coverage of the IQA guidelines.” Id. at 1149. In doing so, the

15 Harkonen court expressly did not address the issue presented here, noting that “[w]e have no

16 reason in this case to reach the broad question of whether the IQA confers upon a private

17 individual the right to seek judicial review of the correctness of all information published by the

18 government.” 800 F.3d at 1148. The court analyzed “[w]hether OMB’s and DOJ’s decisions to

19 exclude press releases from the coverage of the IQA guidelines were within their authority” using

20 the two-step test established by Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837

21 (1984), and concluded that OMB and DOJ did have such authority and that the press release at

22 issue was properly excluded from coverage. Id. at 1149-51. Thus, the court did not reach the

23 merits of the plaintiff’s IQA-based APA claim but instead determined that the information at issue

24 did not fall under the IQA’s coverage.

25

Plaintiff’s reliance on Prime Time is similarly unavailing. There the plaintiff “sought

26 disclosure and correction under the IQA of the data that [the U.S. Department of Agriculture

27 (“USDA”)] used to calculate” its “quarterly assessments on tobacco manufacturers and importers”

28 pursuant to the Fair and Equitable Tobacco Reform Act (“FETRA”), 7 U.S.C. § 518d(b). 599 16

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United States District Court Northern District of California

1 F.3d at 680, 685. USDA did not respond to the plaintiff’s IQA requests, and plaintiff filed suit

2 directly under the IQA and under the APA. Single Stick, Inc. v. Johanns, 601 F. Supp. 2d 307,

3 311-12 (D.D.C. 2009), aff’d in part and rev’d in part, Prime Time Int’l Co. v. Vilsack, 599 F.3d

4 678 (D.C. Cir. 2010). The district court dismissed the plaintiff’s “claim that USDA’s failure to

5 respond to requests for disclosure and ‘correction’ of the data underlying the assessments violated

6 the [IQA] . . . , ruling that the IQA did not vest any party with the right to disclosure and

7 correction and that USDA’s failure to respond did not constitute final agency action subject to

8 judicial review under the [APA].” 599 F.3d at 682.

9

On appeal, USDA argued that the FETRA assessments were excluded from IQA coverage

10 under both the OMB and agency guidelines because the assessments constituted “adjudicative

11 proceedings.” Id. at 685. The D.C. Circuit first determined that OMB properly “exercised its

12 discretion to exclude documents prepared and distributed in the context of adjudicative

13 proceedings” in its interpretation of the IQA. Id. at 685 (citing Chevron, 467 U.S. at 843). As to

14 the merits of the plaintiff’s IQA claim, the court determined that the underlying agency action—

15 FETRA assessments—were adjudicative proceedings and thus subject to APA review under the

16 Fair and Equitable Tobacco Reform Act, 7 U.S.C. § 518d(i), (j). Id. at 686 (concluding that the

17 plaintiff had “rights to an administrative appeal and judicial review”) (citing 5 U.S.C. § 551(7)

18 (defining “adjudication”) and 7 U.S.C. § 518d(i), (j)). In other words, the court did not conclude

19 that the IQA provides a right to review under the APA, but instead found that review is proper

20 under FETRA and the APA. See also Salazar, 749 F. Supp. 2d at 1096-1100 (concluding that

21 Prime Time does not support that “the IQA provides a right to judicial review” under the APA);

22 Harkonen, 2012 WL 609571, at *12 (“Prime Time does not support that . . . the court found there

23 was a right to review under the APA.”). The Prime Time court thus “affirm[ed] the dismissal of

24 the IQA challenge, although on a different ground than relied upon by the district court.” Id. at

25 686.

26

Simply put, Plaintiff cites no case in which a court has done what Plaintiff asks this Court

27 to do—adjudicate the merits of an IQA-based APA claim premised on an agency’s failure to grant

28 a petition for correction. Conversely, courts that have addressed the issue of APA claims 17

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United States District Court Northern District of California

1 premised on alleged IQA violations have “uniformly found” that such claims are precluded from

2 judicial review. See Harkonen, 2012 WL 6019571 at *11 (collecting cases). That authority is

3 persuasive, and the Court follows it here.

4

In any event, as discussed below, even if the IQA’s implementing guidelines did provide

5 judicially manageable standards, Plaintiff’s claim would still fail to state a cause of action under

6 the APA.

7

2. No “Final Agency Action” for Purposes of an APA Claim

8

As previously discussed, the APA provides for judicial review of “final agency action for

9 which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Determining whether an

10 agency action is “final” is a two-step process. Bennett v. Spear, 520 U.S. 154, 177-78 (1997).

11 The action must first “mark the consummation of the agency’s decisionmaking process.” Id.

12 (internal quotation marks and citation omitted). Next, “the action must be one by which rights or

13 obligations have been determined, or from which legal consequences will flow.” Id. at 178

14 (internal quotation marks and citation omitted). In general, “administrative orders are not final

15 and reviewable unless and until they impose an obligation, deny a right, or fix some legal

16 relationship as a consummation of the administrative process.” Ukiah Valley Med. Ctr. v. FTC,

17 911 F.2d 261, 264 (9th Cir. 1990) (internal quotation marks and citation omitted). Defendants

18 argue that Section 704 forecloses judicial review of Plaintiff’s IQA claim because Defendants’

19 decisions regarding Plaintiff’s requests for correction are not “actions from which legal

20 consequences will flow.” (Dkt. No. 40 at 30.) The Court agrees.

21

Plaintiff asserts that Defendants’ “final denials determined rights and obligations” because

22 the IQA and its implementing guidelines confer a procedural right that entitles petitioners to

23 “‘seek and obtain correction’” of disseminated information “that is not of sufficient ‘quality,’

24 ‘objectivity,’ ‘utility,’ or ‘integrity.’” (Dkt. No. 41 at 24 (quoting 44 U.S.C. § 3516 note

25 (b)(2)(B)).) Plaintiff fails to show, however, that a procedural right to petition for correction of

26 information is tethered to any legal consequences or obligations that flow from Defendants’

27 denials of Plaintiff’s requests for correction. Indeed, courts have rejected similar arguments that

28 the IQA and its implementing guidelines implicate legal rights or cause legal consequences for 18

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United States District Court Northern District of California

1 purposes of an APA claim, finding instead that the IQA “does not create any legal right to

2 information or its correctness.” See, e.g., Harkonen, 2012 WL 6019571, at *11 (“Courts that have

3 reviewed the IQA have uniformly found that it ‘does not create any legal right to information or its

4 correctness.’) (collecting cases); Salazar, 749 F. Supp. 2d at 1103 (finding that “[t]he IQA creates

5 no enforceable legal rights at all”); Salt Inst. v. Leavitt, 440 F.3d 156, 159 (4th Cir. 2006)

6 (affirming dismissal of IQA-based APA claim and finding the IQA “does not create any legal right

7 to information or its correctness”). Plaintiff cites no case in which a court has held that an

8 agency’s final denial of an IQA request for correction constitutes final agency action for APA

9 purposes.

10

To the extent that Plaintiff was entitled to petition for the correction of information under

11 the IQA and its implementing guidelines, the DOJ and DHS afforded Plaintiff that procedural

12 right and issued determinations on Plaintiff’s petitions. Plaintiff points to no language in either

13 the IQA or its implementing guidelines suggesting that Defendants’ IQA determinations implicate

14 a legal right or obligation for purposes of an APA claim. See Harkonen, 2012 WL 6019571, at

15 *12 (finding no final agency action for APA purposes because “the denial of Plaintiff’s request for

16 correction did not deny him a legal right.”). Absent a showing that Defendants’ IQA

17 determinations give rise to legal consequences, Plaintiff fails to allege final agency action for

18 purposes of an APA claim.

19

Plaintiff argues in a footnote that because it “raises procedure-based injuries, and not a

20 right to informational correctness, the cases Defendants cite to establish that the IQA does not

21 create a ‘legal right to information or its correctness’ are off base.” (See Dkt. No. 41 at 16 n.6

22 (citing Salt Inst., 440 F.3d at 159; Harkonen, 2012 WL 6019571, at *11).) Despite that assertion,

23 however, the relief sought by Plaintiff’s complaint demonstrates that Plaintiff’s claim is premised

24 on a purported right to informational correctness under the IQA that Salt Inst. and the district court

25 in Harkonen squarely rejected. The complaint seeks declarations “that the Report disseminates

26 information that fails the standard of quality required of federal agencies” and “that Defendants

27 violated the IQA, its implementing Guidelines, and the APA,” and an order requiring “Defendants

28 to expressly retract or correct the Report and to cease dissemination of the Report.” (Dkt. No. 1 at 19

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United States District Court Northern District of California

1 32.) Plaintiff’s opposition reiterates that Plaintiff’s injury would be redressed by “[a] court order

2 declaring that the Report fails to meet baseline information quality standards, that Defendants

3 violated the IQA and the APA, and ordering them to correct or retract and cease disseminating

4 the Report.” (Dkt. No. 41 at 16 (emphasis added).) Simply put, Plaintiff’s complaint does not

5 seek redress for any “procedure-based injuries” but instead seeks correction of information. Such

6 relief is unavailable under the APA.

7

CONCLUSION

8

For the reasons set forth above, the Court GRANTS Defendants’ Rule 12(b)(6) motion to

9 dismiss with prejudice to the extent Plaintiff challenges Defendants’ refusal to correct the Report.

10 Alleged violations of the IQA arising out of agency determinations regarding Plaintiff’s requests

11 for correction and reconsideration cannot form the basis of an APA claim. The Court is inclined

12 to dismiss Plaintiff’s complaint without leave to amend as Plaintiff’s opposition does not suggest

13 that Plaintiff could amend its complaint to correct any of the deficiencies noted by Defendants in

14 their motion and the Court is not aware of how it could. Nonetheless, because the issue was not

15 explored at oral argument, the Court will grant Plaintiff 30 days leave to file an amended

16 complaint, provided Plaintiff believes in good faith that its amendment addresses the issues raised

17 by the Court’s Order. If Plaintiff instead simply disagrees with the Court’s ruling, then the next

18 steps are for the Court to enter judgment and for Plaintiff to pursue an appeal should it so choose.

19 Accordingly, should no amended complaint be filed within 30 days of this Order, the Court will

20 enter judgment.

21

This Order disposes of Docket No. 40.

22

IT IS SO ORDERED.

23 Dated: July 19, 2019

24

25

26

JACQUELINE SCOTT CORLEY United States Magistrate Judge

27

28 20

 
 Case 3:18-cv-02137-JSC Document 37 Filed 04/01/19 Page 1 of 33

1 Sirine Shebaya (pro hac vice)

Muslim Advocates 2 P.O. Box 34440, Washington, DC 20035

3

(202) 879-2622 sirine@muslimadvocates.org

4 Robin F. Thurston (pro hac vice)

5 Benjamin Seel (pro hac vice to be filed)

6

Democracy Forward Foundation P.O. Box 34553, Washington, DC 20043

7

(202) 448-9090 rthurston@democracyforward.org,

8 bseel@democracyforward.org

9 Aaron M. Olsen (CA Bar No. 259923)

10

Haeggquist and Eck LLP 225 Broadway, Suite 2050

11

San Diego, CA 92101 (619) 342-8000

12 aarono@haelaw.com

13 Counsel for Plaintiff

14

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

15

Oakland Division

16 Muslim Advocates,

)

P.O. Box 34440

)

17 Washington, DC 20043,

)

18

)

Plaintiff,

)

19 vs.

) ) Case Number: 18-cv-02137-JSC

20

)

21

U.S. Department of Justice, 950 Pennsylvania Ave., NW

) ) FIRST AMENDED COMPLAINT FOR

22 Washington, DC 20530,

) INJUNCTIVE AND DECLARATORY ) RELIEF

23 and

)

)

24 U.S. Department of Homeland Security,

)

25

245 Murray Lane, SW Washington, DC 20528,

) )

26

)

Defendants.

)

27

)

28 First Amended Complaint

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1

Plaintiff Muslim Advocates hereby sues Defendants the U.S. Department of Justice

2 (“DOJ”) and the U.S. Department of Homeland Security (“DHS”) under the Administrative

3 Procedure Act, 5 U.S.C. §§ 701 et seq., (“APA”) and for violation of the Information Quality

4 Act, 44 U.S.C. § 3516 note (“IQA”), and alleges as follows:

5

6

Introduction

7 1. President Trump campaigned on the promise of a “total and complete shutdown of

8 Muslims entering the United States.” Since taking office, he sought to fulfill this overtly

9 discriminatory pledge by enacting three successive bans on nationals of several Muslim-majority

10 countries and a series of policies aimed at slowing the entry of refugees, particularly from

11 Muslim-majority countries, into the United States. He has also attempted to reduce other

12 longstanding paths to lawful immigration.
13

14 2.

As part of this anti-Muslim and anti-immigrant agenda, the President and members of his

15 Administration regularly overstate and misrepresent the threat that immigrants, especially

16 Muslim immigrants, pose to the United States. This bias infects a report published by

17 Defendants on January 16, 2018, the Executive Order 13780: Protecting the Nation From

18 Foreign Terrorist Entry Into the United States Initial Section 11 Report (the “Report”).

19 3.

Executive Order 13780, which required publication of the Report, incorporated President

20

Trump’s second attempt at a travel ban, and directed Defendants, in order to be “more 21

22 transparent with the American people and to implement more effective policies and practices that

23 serve the national interest,” to compile and disseminate information that purports to link

24 terrorism to immigration.

25

26

27

28 First Amended Complaint

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1 4. The Report presents information on immigrants and foreign nationals in a manner that

2 misleadingly inflates the threat they pose to the United States. Its presentation of this

3 information also focuses exclusively and inaccurately on Muslims.

4 5.

Among the ways the Report manipulates information to support its anti-immigrant and

5

6 anti-Muslim conclusions: it ignores domestic terrorism incidents; it departs from the directive of

7 EO 13780 and analyzes terrorism incidents involving foreign-born Americans rather than foreign

8 nationals; it includes individuals who committed terrorism acts overseas and whose only tie to

9 the United States is their extradition for prosecution; and it relies on irrelevant and debunked

10 studies in providing information regarding so-called “honor killings” and violence against

11 women.

12 6.
13

In so doing, the Report perpetuates the ongoing stigmatization of immigrants and

14 Muslims by the Administration. For example, the Trump Administration used the Report to

15 justify its sweeping ban on the entry of nationals from six Muslim-majority countries into the

16 United States. It has also specifically tied the Report’s findings to its calls for an end to the

17 issuance of diversity and family reunification visas, which would have a significant negative

18 impact on Muslim immigrants.

19 7.

The Report has been used explicitly to stoke anti-Muslim and anti-immigrant sentiment

20

and is likely to continue to be used in this manner. It therefore not only contributes on its face to 21

22 stigmatization, but it is also likely to contribute to increased acts of hate and violence against

23 these communities.

24 8. Muslim Advocates submitted a petition for retraction and correction of the Report (the

25 “Petition”) because the Report’s presentation of information does not meet the level of quality
26 required of federal agencies by the IQA and its implementing Guidelines. 27

28 First Amended Complaint

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1 9. Belatedly, and only after the initiation of this litigation, Defendants complied with their

2 obligation to respond substantively to Plaintiff’s Petition, declining to retract or correct the
3 Report. The parties agreed to stay the litigation in order to proceed through the administrative 4
appeal process. 5 6 10. The administrative appeal process has now concluded. In their final substantive 7 responses, both Defendants admitted that the information quality concerns raised by Plaintiff
8 have merit. DOJ conceded that “information in the Report could be criticized by some readers,

9 consistent with some of the concerns voiced in your Request for Reconsideration.” DHS agreed

10 that Plaintiff’s criticisms of the Report’s biased selection of illustrative examples of terrorists “is
11 well-taken.” And DHS “acknowledge[d] the points you have raised” and will take them “into 12
consideration in future Section 11 Reports.” 13 14 11. Nevertheless, Defendants declined to retract or correct the Report, and instead continue to
15 disseminate it. In so doing they violate the IQA and its implementing Guidelines.

16

Parties

17 12. Muslim Advocates is a civil rights organization that promotes freedom and justice for

18 Americans of all faiths, with a particular focus on issues impacting Muslim communities. 19 Muslim Advocates engages in civil rights litigation, policy advocacy, and public education to 20
fight inaccurate stereotypes about Muslims and other immigrants. In particular, Muslim 21 22 Advocates works to ensure that policies enacted under the banner of national security do not
23 wrongfully discriminate against Muslims and are not based on inaccurate or misleading

24 information. Muslim Advocates’ headquarters are in Washington, DC.1

25

26

27 1 In January 2019, following the initiation of this case, Muslim Advocates closed the office it maintained in Oakland, California. It now resides in Washington, DC.

28 First Amended Complaint

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1 13. The Department of Justice is a federal agency. Along with the Department of

2 Homeland Security, it disseminated the Report.

3 14. The Department of Homeland Security is a federal agency. Along with the

4 Department of Justice, it disseminated the Report.

5

6

Jurisdiction, Venue, and Intradistrict Assignment

7 15. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331,

8 because this action arises under federal law, specifically the IQA, 44 U.S.C. § 3516 note, and the

9 APA, 5 U.S.C. §§ 701 et seq.

10 16. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e), because Plaintiff resided

11 in this district at the time of the initial filing in this case. 12
17. At the time the Complaint was filed, Plaintiff resided in Alameda County, making 13 14 assignment to the Oakland Division appropriate pursuant to Local Civil Rule 3-2(c), (d).

15

The Information Quality Act

16 18. The IQA, together with its implementing Guidelines, requires that information

17 disseminated to the public by federal agencies, including by DHS and DOJ, be of requisite

18 quality, objectivity, utility, and integrity.2 19 19. The IQA, an addendum to the Paperwork Reduction Act, 44 U.S.C. §§ 3501 et seq. 20
(“PRA”), directed the Office of Management and Budget (“OMB”) to issue guidelines under 21 22 various PRA authorities by September 30, 2001.
23 20. The IQA provides that the guidelines issued by OMB should require each federal agency

24 to which they apply to, in turn:

25

26 2 Consolidated Appropriations—FY 2001, Pub. L. No. 106-554, § 515, 114 Stat. 2763, 2763A-
27 153, 154 (2000) (codified at 44 U.S.C. § 3516 note).

28 First Amended Complaint

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1

(A) issue guidelines ensuring and maximizing the quality, objectivity, utility, and

integrity of information (including statistical information) disseminated by the

2

agency, by not later than 1 year after the date of issuance of the guidelines under

3

subsection (a); [and]

4

(B) establish administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency that

5

does not comply with the guidelines issued under subsection (a).

6 44 U.S.C. § 3516 note (B)(2).

7 21. OMB issued “final guidelines”, as directed, after a period of notice and comment, in

8 2002.3

9 22.
10

In issuing its Guidelines, OMB explained, “[g]iven the administrative mechanisms

11 required by [the IQA] as well as the standards set forth in the Paperwork Reduction Act, it is

12 clear that agencies should not disseminate substantive information that does not meet a basic

13 level of quality.” 67 Fed. Reg. at 8452.

14 23. The OMB Guidelines elaborate on the directives set forth in the IQA itself. They define

15 “quality”, “utility”, “objectivity,” and “integrity”, among other relevant terms. These definitions

16 state, in part:

17

“Quality” is an encompassing term comprising utility, objectivity, and integrity. 18

19

“Utility” refers to the usefulness of the information to its intended users, including the public. In assessing the usefulness of information that the agency disseminates

20

to the public, the agency needs to consider the uses of the information not only from the perspective of the agency but also from the perspective of the public. As

21

a result, when transparency of information is relevant for assessing the

information’s usefulness from the public's perspective, the agency must take care

22

to ensure that transparency has been addressed in its review of the information. …

23

“Objectivity” includes whether disseminated information is being presented in an

24

accurate, clear, complete, and unbiased manner. This involves whether the

25 3 Office of Mgmt. & Budget, Exec. Office of the President, Guidelines for Ensuring and

26 Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by

27

Federal Agencies (“OMB Guidelines”), 67 Fed. Reg. 8451, 8452 (Feb. 22, 2002), https://www.gpo.gov/fdsys/pkg/FR-2002-02-22/pdf/R2-59.pdf.

28 First Amended Complaint

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1

information is presented within a proper context. Sometimes, in disseminating

certain types of information to the public, other information must also be

2

disseminated in order to ensure an accurate, clear, complete, and unbiased

3

presentation.

4 24. The OMB Guidelines also require agencies to “establish administrative mechanisms

5 allowing affected persons to seek and obtain, where appropriate, timely correction of information

6 maintained and disseminated by the agency that does not comply with OMB or agency
7 guidelines.” Id. at 8459. 8 25. Defendants have each promulgated guidelines applicable to themselves. 9
26. The DOJ Guidelines set forth definitions of “utility”, “objectivity”, and “integrity”, which 10 11 “apply, consistent with the OMB Guidelines (paragraph V, definitions) which will also apply.”4
12 27. The DOJ Guidelines also set forth a process for submitting a formal request for

13 correction, including a description of the information that requests for correction should include,

14 and a statement that the requester bears the burden of proof in seeking a correction.

15 28. The DOJ Guidelines state that:

16 Based on the explanation and evidence submitted with the request for correction,

17

a DOJ official who is knowledgeable of the subject matter will conduct a

18

thorough review of the information being challenged, the processes that were used to create and disseminate the information, and the conformity of the information

19

and those processes with both OMB’s and DOJ’s Information Quality Guidelines. After it has completed its review, DOJ will determine whether a correction is

20

warranted, and, if so, what corrective action it will take. … After the responsible

DOJ component has made its final determination pertaining to a request for

21

correction of information, it will respond to the requestor by letter, e-mail, or fax.

22

The response will explain the findings and the actions to be taken (if any) in response to the complaint.

23

24

25 4 U.S. DOJ, Information Quality: Ensuring the Quality of the Information Disseminated by the

26

Department (“DOJ Guidelines”), https://www.justice.gov/iqpr/information-quality (last updated Oct. 31, 2018).

27

28 First Amended Complaint

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1 29. DOJ Guidelines state that normally the agency will respond to a request for correction

2 within sixty calendar days of receipt, or will inform the requestor of any additional time needed

3 to resolve the request, the reason why, and an estimated decision date.

4 30.
5

The DHS Guidelines, which are based on the OMB Guidelines, also state that the three

6 underlying requirements for quality information are utility, objectivity, and integrity of

7 information, and set forth accompanying definitions.5

8 31. The DHS Guidelines also provide for an administrative information correction process,

9 whereby “affected persons can seek, and obtain, where appropriate, timely correction of

10 information that does not comply with OMB Guidelines, DHS Guidelines, or [DHS] Component

11 standards.”6

12 32.
13

The DHS Guidelines also state that DHS Components should respond to requests for

14 correction in writing within sixty calendar days of receipt.

15

Factual Allegations

16

Executive Order 13780 and its reporting requirement.

17 33. President Trump signed Executive Order 13780, Protecting the Nation from Foreign

18 Terrorist Entry into the United States (“EO 13780”) on March 6, 2017.
19 34. EO 13780 significantly restricts entry to the United States by individuals from six 20
Muslim-majority countries. The travel restrictions imposed by EO 13780 and its predecessor 21

22

23

24

25 5 U.S. Dep’t Homeland Security, Information Quality Guidelines (last visited Jan. 18, 2018),

26

https://www.dhs.gov/sites/default/files/publications/dhs-iq-guidelines-fy2011.pdf (“DHS Guidelines”) at 2-5.

27 6 Id. at 6.

28 First Amended Complaint

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1 and successor Executive Order and Proclamation7 have been the subject of widespread litigation,

2 including the Supreme Court’s decision in Trump v. Hawaii, 138 S. Ct. 2392 (2018). Litigation
3 over the government’s implementation of the travel ban continues, such as a pending challenge 4
to the government’s failure to provide fair and meaningful access to case-by-case waivers. See 5 6 Emami v. Nielsen, Civil No. 18-1587-JD (N.D. Cal). 7 35. In addition to the travel restrictions, Section 11 of EO 13780 (“Section 11”) instructs the
8 Secretary of Homeland Security, in consultation with the Attorney General, to collect and make

9 publicly available certain information regarding foreign nationals and terrorism. EO 13780, Sec.

10 11(a).
11 36. Section 11 requires in pertinent part that “[t]o be more transparent with the American 12
people and to implement more effectively policies and practices that serve the national interest, 13 14 the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent
15 with applicable law and national security, collect and make publicly available the following

16 information:

17

(i) information regarding the number of foreign nationals in the United States who

18

have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed

19

from the United States based on terrorism-related activity, affiliation with or provision of material support to a terrorism-related organization, or any other

20

national-security-related reasons;

21

(ii) information regarding the number of foreign nationals in the United States

22

who have been radicalized after entry into the United States and who have engaged in terrorism-related acts, or who have provided material support to

23

terrorism-related organizations in countries that pose a threat to the United States;

24

25

26 7 Exec. Order No. 13769, Proclamation No. 9645, Enhancing Vetting Capabilities and Processes

27

for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats (the “Proclamation”), 82 Fed. Reg. 45,161 (Sept. 27, 2017).

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1

(iii) information regarding the number and types of acts of gender-based violence

against women, including so-called “honor killings,” in the United States by

2

foreign nationals; and

3

(iv) any other information relevant to public safety and security as determined by

4

the Secretary of Homeland Security or the Attorney General, including information on the immigration status of foreign nationals charged with major

5

offenses.

6 EO 13780, Sec. 11(a).

7 37. EO 13780 instructs the Secretary of Homeland Security to release the “initial report”
8 required by Section 11(a) within 180 days, and that the report shall include information for the 9
period from September 11, 2001, until the date of the initial report. EO 13780, Sec. 11(b). 10 11 38. On January 16, 2018, DOJ and DHS released a report titled: “Executive Order 13780: 12 Protecting the Nation From Foreign Terrorist Entry Into the United States Initial Section 11
13 Report”8, which is the initial report required by Section 11, and which purports to provide

14 information responsive to the four categories of information that Section 11 requires be made

15 available. Report at 1.
16 39. The Report sets forth various information in response to the four subsections identified 17
by Section 11, including the misleading conclusion that three out of four individuals convicted of 18 19 international terrorism and terrorism-related offenses were foreign-born.
20 40. Defendants issued the Report with accompanying press releases highlighting the “three

21 out of four” conclusion and have disseminated the Report to the public on their respective

22 webpages.9 23

24 8 U.S. DHS & U.S. DOJ, Executive Order 13780: Protecting the Nation from Foreign Terrorist 25 Entry into the United States Initial Section 11 Report (the “Report”) (Jan. 2018),
https://www.dhs.gov/sites/default/files/publications/Executive%20Order% 26 2013780%20Section%2011%20Report%20-%20Final.pdf.

27 9 Press Release, U.S. DHS, DHS, DOJ Report: Three Out of Four Individuals Convicted of International Terrorism and Terrorism-Related Offenses Were Foreign-Born (“DHS Press

28 First Amended Complaint

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1 41. Despite the Administration’s ongoing dissemination of the Report, the information in the

2 Report is biased, misleading, and incomplete. It violates OMB’s IQA Guidelines, lacking utility

3 and objectivity, and Defendants’ respective IQA Guidelines, as set forth in detail, below and in

4 Plaintiff’s various submissions to Defendants.

5

6

The Report’s substitution of international terrorism for all terrorism misleadingly undercounts domestic terrorism, and artificially inflates the proportion of terrorist incidents

7

committed by immigrants and foreign nationals.

8 42. The Report categorically excludes all terrorism-related offenses that occurred in the

9 United States which were planned and executed by individuals without international connections.

10 Instead, the Report relied on a limited subset of terrorism-related data, specifically: “public
11 convictions in federal courts between September 11, 2001, and December 31, 2016 resulting 12
from international terrorism investigations, including investigations of terrorist acts planned or 13 14 committed outside the territorial jurisdiction of the United States over which Federal criminal
15 jurisdiction exists and those within the United States involving international terrorists and

16 terrorist groups.” Report at 2. Defendants omitted data related to domestic terrorism without

17 explanation.

18 43. This exclusion dramatically misrepresents the actual terrorist threat posed to the United
19 States.10 The government’s own information makes clear that domestic terrorism, especially 20

21

22 Release”) (Jan. 16, 2018), https://www.dhs.gov/news/2018/01/16/dhs-doj-report-three-out-four-

individuals-convicted-international-terrorism-and; Press Release, U.S. DOJ, DOJ, DHS Report: 23 Three Out of Four Individuals Convicted of International Terrorism and Terrorism-Related

24

Offenses Were Foreign-Born (“DOJ Press Release”) (Jan. 16, 2018), https://www.justice.gov/opa/pr/doj-dhs-report-three-out-four-individuals-convicted-

25 international-terrorism-and-terrorism.

26

10 See Devlin Barrett, Arrests in domestic terror probes outpace those inspired by Islamic extremists, Wash. Post (March 9, 2019), https://www.washingtonpost.com/world/national-

27 security/arrests-in-domestic-terror-probes-outpace-those-inspired-by-islamicextremists/2019/03/08/0bf329b6-392f-11e9-a2cd-

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1 including far right violent extremist groups, is a significant source of the terrorist threat to the

2 country. An April 2017 Government Accountability Office report concluded that “of the 85
3 violent extremist incidents that resulted in death since September 12, 2001, far right wing violent 4
extremist groups were responsible for 62 (73 percent) while radical Islamist violent extremists 5
were responsible for 23 (27 percent).”11 Similarly, DHS and the Federal Bureau of Investigation 6 7 published an intelligence bulletin in May 2017 titled “White Supremacist Extremism Poses

8 Persistent Threat of Lethal Violence.” That bulletin states that white supremacist extremists,

9 who are very rarely immigrants, were responsible for “49 homicides in 26 attacks from 2000 to

10 2016 . . . more than any other domestic extremist movement.”12
11 44. Despite the prevalence of serious domestic terrorist threats, particularly the threat posed 12
by far-right wing violent extremist groups, the Report, which purports to address all terrorism13

14

15 307b06d0257b_story.html?utm_term=.505bd88ac622 (“Most people arrested as the result of FBI terrorism investigations are charged with non-terrorism offenses, and more domestic terror

16 suspects were arrested last year than those allegedly inspired by international terror groups,

according to internal FBI figures reviewed by The Washington Post.”); Seth G. Jones, Center for 17 Strategic and International Studies, The Rise of Far-Right Extremism in the United States 1 (Nov.

18

7, 2018), https://csis-prod.s3.amazonaws.com/s3fspublic/publication/181119_RightWingTerrorism_layout_FINAL.pdf?MyC9DjLLRftoeUKvq6qx

19 FPsCPFoTkBpH (“The threat from right-wing terrorism in the United States—and Europe— appears to be rising. Of particular concern are white supremacists and anti-government

20 extremists, such as militia groups and so-called sovereign citizens interested in plotting attacks

21

against government, racial, religious, and political targets in the United States.” And “[T]he number of attacks from right-wing extremists since 2014 has been greater than attacks from

22 Islamic extremists.”).

11 See U.S. Gov’t Accountability Office, Countering Violent Extremism: Actions Needed to 23 Define Strategy and Assess Progress of Federal Efforts 4 (Apr. 2017),

24

http://www.gao.gov/assets/690/683984.pdf. 12 See FBI & DHS Joint Intelligence Bulletin, White Supremacist Extremism Poses Persistent

25 Threat of Lethal Violence 4 (May 10, 2017), available at https://www.documentcloud.org/documents/3924852-White-Supremacist-Extremism-JIB.html;

26 see also Jana Winter, FBI and DHS Warned of Growing Threat from White Supremacists Months

27

Ago, Foreign Policy (Aug. 14, 2017), http://foreignpolicy.com/2017/08/14/fbi-and-dhs-warnedof-growing-threat-from-white-supremacists-months-ago/ (citing the Joint Intelligence Bulletin).

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1 related offenses, only provides data related to international terrorism-related offenses. Report at

2 2. This presentation of information runs contrary to EO 13780’s directive that Defendants
3 publish information regarding foreign nationals charged with or convicted of “terrorism-related 4
offenses” generally, not just international terrorism-related offenses. 5 6 45. Through their manipulation of data, Defendants artificially increased the proportion of 7 immigrants and foreign nationals presented as responsible for terrorist incidents—without
8 making clear that the scope of the data is much narrower than what EO 13780 requires and

9 without explaining how the presentation skews the terrorist threat actually posed to the United

10 States. As such, Defendants have disseminated information that lacks utility and is not objective.

11

The Report provided misleading and biased information by substituting data concerning

12

foreign-born individuals for data concerning foreign nationals.

13 46. Section 11 directed Defendants to provide various information related to “foreign

14 nationals” and terrorism-related offenses. EO 13780, Sec. 11(a).
15 47. The Report instead disseminates information regarding foreign-born individuals, rather 16
than foreign nationals, stating that of at least 549 individuals who were convicted of international 17 18 (and only international) terrorism-related charges in U.S. federal courts between September 11,
19 2001, and December 31, 2016, “approximately 73 percent (402 of these 549 individuals) were

20 foreign-born.” Report at 2.

21 48. The Report does not provide any explanation for the substitution of foreign-born persons
22 for foreign nationals, although doing so results in the misleading conclusion that nearly three-
23 quarters of individuals who were convicted of international terrorism-related charges were
24 immigrants or non-citizens. This conclusion is debunked by concrete data—the majority of
25

26

27

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1 jihadist terrorists, for example, since September 11 have been U.S. citizens.13 As another study

2 of terrorism concluded, native born citizens are responsible for the overwhelming majority of
3 terrorism fatalities since 2002.14 4
49. The Report further states that of these 549 individuals, 254 were not U.S. citizens, 148 5 6 were foreign-born, naturalized and received U.S. citizenship, and 147 were U.S. citizens by birth. 7 Report at 2. Had the Report followed EO 13780’s directive to report on foreign nationals, even
8 based on its own flawed data, it would have concluded that fewer than half, or 46 percent, of

9 individuals charged or convicted of international terrorism-related offenses met this criterion.

10 50. Responding to a request for information that purports to be about the terrorist threat that
11 foreign national immigrants pose to the United States by disseminating information that includes 12
naturalized citizens perpetuates the Administration’s discriminatory view that only native-born 13 14 individuals are actually American, and results in numbers that are artificially inflated.
15 51. Providing such misleading information is also contrary to effective counterterrorism

16 policy, which aims to prevent terrorism from sowing discord within a society. The Report’s focus

17 on the country of an individual’s birth also ignores the essential question of where and why the

18 terrorist became radicalized. As a group of counter-terrorism experts informed Defendants in
19 support of Plaintiff’s Petition, by ignoring the issue of domestic radicalization, Defendants made 20

21

22

23 13 Peter Bergen et al, Terrorism in America After 9/11: Part II. Who Are the Terrorists?, New

24

America, https://www.newamerica.org/in-depth/terrorism-in-america/who-are-terrorists/ (last visited Mar. 27, 2019).

25 14 See Alex Nowrasteh, New Government Terrorism Report Provides Little Useful Information,

26

Cato Inst. (Jan. 16, 2018), https://www.cato.org/blog/new-government-terrorism-report-nearlyworthless (“Since the beginning of 2002, native-born Americans were responsible for 78 percent

27 of all murders in terrorist attacks committed on U.S. soil while foreign-born terrorists only committed 22 percent.”).

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1 “a deliberate choice not to help the public understand better the nature of radicalization and its

2 role in terrorist activities on U.S. soil.”15

3 52. As such, in substituting foreign-born for foreign national, Defendants disseminated

4 information that does not have utility and is not objective.

5

6

The Report’s inclusion of individuals who committed terrorism overseas and whose only apparent tie to the United States is extradition to the United States for prosecution is

7

misleading.

8 53. EO 13780 also directs Defendants to disseminate information regarding terrorist events

9 that took place in the United States, specifically data about individuals who were charged with or

10 convicted of terrorism-related offenses “while in the United States” or who have been removed

11 from the United States for various reasons. EO 13780, Sec. 11(a)(i).

12 54.
13

In response, the Report instead disseminates information about individuals who

14 “committed offenses while located abroad, including [those] who were transported to the United

15 States for prosecution.” Report at 2.

16 55. Although someone who has been extradited to the United States for trial may be charged

17 and convicted while in the United States, the offenses committed by that person overseas do not

18 reveal the actual terror threat to the United States, nor could they serve to inform the United 19 States’ immigration policy. Including information about offenses that occurred overseas 20
misleadingly inflates the number of foreign nationals Defendants can claim are responsible for 21 22 terrorism-related offenses, without having any bearing on terrorist threats that exist within the
23 United States, as Section 11 originally required. Defendants provide no explanation for the

24 inclusion of this information.

25

26 15 Letter from Joshua A. Geltzer et al., Inst. for Constitutional Advocacy and Prot., Georgetown

27 Univ. Law Ctr., to Jefferson B. Sessions et al., U.S. Attorney Gen., at 6 (Sept. 13, 2018) (attached hereto as “Attachment A”) (emphasis omitted).

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1 56. The Report also fails to provide access to readily available and nonconfidential

2 underlying aggregate data that would reveal the degree to which including overseas offenses
3 misrepresents the nexus between foreign nationals and the risk of terrorism in the United 4
States—namely the number of charges and convictions it counted for which the perpetrator’s 5 6 primary connection to the United States was extradition for trial. 7 57. Defendants’ manipulation of data misleadingly inflates the threat posed by foreign
8 nationals. As such, Defendants have disseminated information that lacks utility and is not

9 objective.

10

The Report’s examples of foreign nationals charged with or convicted of terrorism-related

11

offenses are misleading and perpetuate the Administration’s discriminatory narrative that Muslims are likely to commit acts of terrorism.

12 58. The Report disseminates eight purportedly “illustrative examples among the 402
13

14 convictions of foreign nationals or naturalized U.S. citizens.” Report at 3-7.

15 59. Each of these profiles is of a man who appears to be Muslim, either because he is from a

16 Muslim-majority country or has a Muslim-sounding name or both.

17 60. The individuals profiled arrived in the United States through the precise immigration

18 provisions the Administration has maligned and sought to eliminate: refugee resettlement,
19 migration preferences to support family reunification, and the visa diversity lottery.16 20

21

22

23

24

16 See Faiza Patel, Trump Administration’s Fuzzy Math on Terrorist Origins Is More than Misleading -- It’s Dishonest, Just Security (Jan. 16, 2018),

25 https://www.justsecurity.org/51084/trump-administrations-fuzzy-math-terrorist-originsmisleading-its-dishonest/; see also Dan Merica & Tal Kopan, Trump Demands Congress

26 Terminate Diversity Immigration Lottery, CNN (Nov. 1, 2017),

27

http://www.cnn.com/2017/11/01/politics/donald-trump-chuck-schumer-nyc-attack/index.html (detailing President Trump’s plans to reform the immigration system).

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1 61. Even though the underlying data—conviction records—is not confidential or otherwise

2 inaccessible, the Report provides no additional information or quantification for outside

3 observers to test the Departments’ doubtful assertion that these examples are “illustrative.”

4 62. This presentation of information lacks utility and is not objective.

5

6

The Report’s information relating to gender-based violence is misleading and perpetuates anti-Muslim stereotypes.

7 63. Subsection (a)(iii) of Section 11 instructs Defendants to provide information regarding
8 the number and types of acts of gender-based violence against women, including so-called
9 10 “honor killings,” in the United States by foreign nationals.

11 64. The information provided by the Report, which purports to be responsive to this

12 directive, is inaccurate and misleading.

13 65. The federal government has not “recorded and tracked in an aggregated statistical manner

14 information pertaining to gender-based violence against women committed at the federal and
15 state level.”17 Nor does the federal government have reliable information regarding the 16
prevalence of so-called “honor killings.” Defendants appear not to possess any quality 17 18 information that is responsive to the directive of subsection (iii).
19 66. Instead, Defendants provide alternate data, which range from irrelevant to inaccurate.

20 67. The Report cites the average annual number of non-fatal domestic violence

21 victimizations. Although that number is significant, the data does not reveal the proportion
22 perpetuated by foreign nationals. Indeed, studies show that gender-based violence rates are 23

24

25

26

27 17 Report at 7. 28 First Amended Complaint

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1 largely the same across all countries, a point which further casts doubt on the Report’s attempt to

2 link gender-based violence and national origin.18
3 68. The Report also presents discredited data to perpetuate the stigmatization of Muslims 4
inherent in EO 13780’s implication that “honor killings” are a significant problem in the United 5 6 States. The Report asserts that “a study commissioned and provided to the DOJ’s Bureau of 7 Justice Statistics in 2014 estimated that an average of 23-27 honor killings occur every year in
8 the United States.”19 The author of the study has, in fact, disclaimed the accuracy of its

9 conclusion, saying “it’s not terribly scientific,” a fact not disclosed by the Report. Moreover, the

10 study cited was not commissioned by the Department of Justice, but by a private organization.20
11 69. Finally, the Report also cites a study regarding the number of women and girls who may 12
be at risk for female genital mutilation, noting that the number was three times higher in 2012 13 14 than in 1990.21 The Report fails to explain that the study’s methodology simply correlates the
15 risk of female genital mutilation in various countries to the number of women and girls living in

16 the United States who were born in that country or who lived with a parent born in that

17 country.22 In short, the study simply tracks immigration rates, and explicitly does not present 18

19 18 See, e.g., K.M. Devries et al., The Global Prevalence of Intimate Partner Violence Against 20 Women, 340 Sci. 1527, 1527, 1528 (June 28, 2013) (estimating that 30 percent of women aged
15 and over have experienced domestic violence and that though there are some slight regional 21 variations, the rates exceed 19 percent everywhere in the world except East Asia).

22 19 Report at 8.

23

20 Jesse Singal, Here’s What the Research Says About Honor Killings in the U.S., N.Y. Magazine (Mar. 6, 2017), http://nymag.com/daily/intelligencer/2017/03/heres-what-the-research-says-

24 about-american-honor-killings.html.

25 21 Report at 8. 22 Id. at 8 n.17 (citing Howard Goldberg et al., Female Genital Mutilation/Cutting in the United

26 States: Updated Estimates of Women and Girls at Risk, 2012, 131 Public Health Reports 340-47

27

(2016), available at http://journals.sagepub.com/doi/pdf/10.1177/ 003335491613100218).

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1 “scientifically valid information” about the behavior of those immigrant populations in the

2 United States.

3 70. As such, Defendants have disseminated information that lacks utility and is not objective.

4 The Report’s role in the Administration’s larger campaign to target immigrant and Muslim

5

communities.

6 71. The Report’s misleading and biased presentation of the threat of violent extremism that
7 immigrants, especially Muslim immigrants, pose to the United States is consistent with the views 8
of the President and Defendants. 9 10 72. During his campaign, then-candidate Trump infamously called for “a total and complete
11 shutdown of Muslims entering the United States,” stating further “[i]t is obvious to anybody that

12 the hatred is beyond comprehension. . . . [O]ur country cannot be the victims of horrendous

13 attacks by people that believe only in Jihad, and have no sense of reason or respect for human

14 life.” He later stated that “Islam hates us,” and that “[w]e can’t allow people coming into the

15 country who have this hatred.”23

16 73.
17

After becoming President, President Trump re-tweeted anti-Muslim videos from a far-

18 right British activist, which were titled: “Muslim migrant beats up Dutch boy on crutches!”;

19 “Muslim destroys a statue of Virgin Mary!”; and “Islamist mob pushes teenage boy off roof and

20 beats him to death!”24 The videos were misleading and drew wide condemnation, but the White

21

22

23 23 Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 594 (4th Cir.), as amended (May 31,

24

2017), as amended (June 15, 2017), cert. granted, 137 S. Ct. 2080, and vacated and remanded sub nom. Trump v. Int’l Refugee Assistance, 138 S. Ct. 353 (2017). See also Washington v.

25 Trump, 847 F.3d 1151, 1167 (9th Cir.), reconsideration en banc denied, 853 F.3d 933 (9th Cir.), reconsideration en banc denied, 858 F.3d 1168 (9th Cir.), and cert. denied sub nom. Golden v.

26 Washington, 138 S. Ct. 448 (2017).

27 24 Ashley Parker & John Wagner, Trump Retweets Inflammatory and Unverified Anti-Muslim Videos, Wash. Post (Nov. 29, 2017), https://www.washingtonpost.com/news/post-

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1 House defended the President’s actions, with the Press Secretary saying, “[T]he threat is real,

2 and that is what the president is talking about.”25
3 74. President Trump has also repeatedly argued, inaccurately, that immigrants pose a threat 4
to public safety.26 5 6 75. Similarly, former-Attorney General Sessions, who oversaw publication of the Report, 7 relied on a single outlier study of questionable methodology to claim that, despite the vast body
8 of research showing that crime tends to decrease in areas where immigrants settle27, “illegal

9 aliens are more than twice as likely to be convicted of crimes as Arizonans,” and that “[t]ens of

10 thousands of crimes have been committed in this country that would never have happened if our
11 immigration laws were enforced and respected like they ought to be.”28 12

13

14

15

16

17

18 politics/wp/2017/11/29/trump-retweets-inflammatory-and-unverified-anti-muslim19 videos/?utm_term=.1a55596e88c1.
25 Id. 20 26 Salvador Rizzo, Trump’s Claim That Immigrants Bring ‘Tremendous Crime’ Is Still Wrong, 21 Wash. Post (Jan. 18, 2018), https://www.washingtonpost.com/news/fact-
checker/wp/2018/01/18/trumps-claim-that-immigrants-bring-tremendous-crime-is-still22 wrong/?utm_term=.20ec4a0e8626.

23 27 Salvador Rizzo, Questions Raised About Study That Links Undocumented Immigrants to

Higher Crime, Wash. Post (Mar. 21, 2018), https://www.washingtonpost.com/news/fact-

24 checker/wp/2018/03/21/questions-raised-about-a-study-that-links-undocumented-immigrants-to-

25 higher-crime/?utm_term=.5b04d784c153. 28 Press Release, U.S. DOJ, Attorney General Sessions Delivers Remarks on National Security

26 and Immigration Priorities of the Administration (Jan. 26, 2018),

27

https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-nationalsecurity-and-immigration-priorities.

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1 76. And Homeland Security Secretary Nielsen has stated that even though the number of

2 unlawful entries to the United States was at historically low levels, still it “is an unacceptable
3 risk to public safety and national security.”29 4
77. Consistent with these views, the Administration has used the Report to support its 5 6 attempts to restrict lawful immigration and its ongoing stigmatization of Muslims. 7 78. For example, the White House issued a statement that the Report shows that “our current
8 immigration system jeopardizes American security” and used the Report to justify its calls to end

9 the visa lottery and migration preferences to support family reunification.30

10 79. Similarly, former-Attorney General Sessions stated that the Report “reveals an
11 indisputable sobering reality—our immigration system has undermined our national security and 12
public safety.”31 13 14 80. In her statement on the Report’s release, Homeland Security Secretary Nielsen said that it
15 “is a clear reminder of why we cannot continue to rely on immigration policy based on pre-9/11

16 thinking that leaves us woefully vulnerable to foreign-born terrorists, and why we must examine

17 our visa laws and continue to intensify screening and vetting of individuals traveling to the
18 United States to prevent terrorists, criminals, and other dangerous individuals from reaching our 19 country.”32 20

21

22 29 Written Testimony of DHS Secretary Nielsen Before the U.S. Senate Committee on the 23 Judiciary (Jan. 16, 2018), https://www.judiciary.senate.gov/imo/media/doc/01-16-
18%20Nielsen%20Testimony.pdf. 24 30 Fact Sheet, White House, Our Current Immigration System Jeopardizes American Security 25 (Jan. 16, 2018), https://www.whitehouse.gov/briefings-statements/current-immigration-system-
jeopardizes-american-security/. 26 31 DOJ Press Release, supra note 9.
27 32 Id.

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1 81. She also warned the Senate Judiciary Committee that the Report was “just the tip of the

2 iceberg” and repeated the conclusion that supposedly three-fourths of individuals convicted of

3 international terrorism in U.S. federal courts were foreign born in her testimony in January 2018

4 as part of her justification for the travel ban against nationals of six Muslim-majority countries.33

5

6

The Report’s use in public discourse and its harmful effects on Muslim communities.

7 82. The Report has also—and predictably—been widely used to promote anti-Muslim, anti-

8 immigrant rhetoric by commentators in the public sphere. In the days following its publication,

9 it was described in news outlets as “linking terrorism with our broken immigration system, full

10 of holes.”34 On one of the most-watched television news programs in the country,35 the host
11 described the Report as showing that “America’s terror threat is clearly . . . an immigration 12

13

14

15

16 33 Anna Giaritelli, DHS Chief: Foreign-born Have Made Up 3 in 4 of International Terrorism

Convictions in US Courts Since Sept. 11 Attacks, Wash. Examiner (Jan. 16, 2018), 17 http://www.washingtonexaminer.com/dhs-chief-foreign-born-have-made-up-3-in-4-of-

18

international-terrorism-convictions-in-us-courts-since-sept-11-attacks/article/2646031; see also Testimony of Secretary Kirstjen Nielsen, Homeland Security Oversight, C-Span (Jan. 16, 2018),

19 https://www.c-span.org/video/?439257-1/homeland-security-secretary-kirstjen-nielsen-facesquestions-daca.

20 34 Fox News @ Night – Shannon Bream – January 16, 2018 – Archive, YouTube (Jan. 17, 2017),

21 https://www.youtube.com/watch?v=OaJmY2WoEb8 (at 1:54); see also Special Report with Bret Baier 1/16/18 | Special Report Fox News Tuesday January 16, 2018, YouTube (Jan. 16, 2018),

22 https://www.youtube.com/watch?v=pa4jJOJ4xjw (at 13:20); Fox News @ Night – Shannon

Bream – January 16, 2018 – Archive, YouTube (Jan. 17, 2017), 23 https://www.youtube.com/watch?v=OaJmY2WoEb8 (at 1:54 and 6:40).

24 35 A.J. Katz, January 2018 Ratings: Fox News Is Cable News’ Most-Watched Network For 16

25 Years Straight, TV Newser (Jan. 30, 2018), http://www.adweek.com/tvnewser/january-2018ratings-fox-news-is-now-cable-newss-most-watched-network-for-16-straight-years/356285;

26 Mark Joyella, Is Tucker Carlson The New King Of Cable News?, Forbes (May 31,

27

2017), https://www.forbes.com/sites/markjoyella/2017/05/31/is-tucker-carlson-the-new-king-ofcable-news/#7c7f84985370.

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1 issue.”36 And multiple think tanks and commentators seized upon the Report as an opportunity

2 to promote anti-Muslim, anti-immigrant rhetoric and policies.37
3 83. The damaging stigma the Report has caused is further amplified by an entirely 4
foreseeable mischaracterization of its findings. The Report found (misleadingly) that 73 percent 5 6 of all individuals convicted of international terrorism-related offenses were foreign-born. But 7 numerous government officials and anti-immigrant outlets have stated that 73 percent of

8 individuals convicted of all terrorism-related offenses were foreign-born. For example,

9 President Trump tweeted on its release date that the report “shows that nearly 3 in 4 individuals

10 convicted of terrorism-related charges are foreign-born.”38 On the same day, then-House
11 Judiciary Chairman Bob Goodlatte stated that “[o]f the 549 terror-related convictions since the 12

13

14

15

16

36 Attorney General Jeff Sessions and Tucker Carlson Discuss Immigration – MGTOW, YouTube (Jan. 18, 2018), https://www.youtube.com/watch?v=o_244_Rf-Co (at 0:22).

17 37 See, e.g., David Horowitz, Man up, DC! Immigrants are 73 percent of terrorism convictions,

18

Conservative Review (Jan. 17, 2018), https://www.conservativereview.com/articles/man-dcimmigrants-73-percent-terrorism-convictions/; Hans A. von Spakovsky, The importance of

19 public safety and national security in the immigration debate, Fox News (Jan. 25, 2018), http://www.foxnews.com/opinion/2018/01/25/importance-public-safety-and-national-security-in-

20 immigration-debate.html; Andrew R. Arthur, We Need Better Vetting, Better Screening, and

21

Better Laws, Center for Immigration Studies (Jan. 16, 2018), https://cis.org/Arthur/We-NeedBetter-Vetting-Better-Screening-and-Better-Laws; Kevin Daley, Defending The Travel Ban Just

22

Got A Little Easier, The Daily Caller (Jan. 16, 2018), http://dailycaller.com/2018/01/16/dhsreport-may-help-travel-ban-defense/.

23 38 Donald J. Trump (@realDonaldTrump), Twitter (Jan. 16, 2018),

24

https://twitter.com/realDonaldTrump/status/953406423177859073?ref_src=twsrc%5Etfw&ref_u rl=http%3A%2F%2Fnymag.com%2Fdaily%2Fintelligencer%2F2018%2F01%2Ftrumps-plan-to-

25 end-chain-migration-isnt-populist.html&tfw_creator=ericlevitz&tfw_site=intelligencer; see also Salvador Rizzo, President Trump’s Claim That ‘Nearly 3 in 4’ Convicted of Terrorism Are
26 Foreign-Born, Wash. Post (Jan. 22, 2018), https://www.washingtonpost.com/news/fact-

27

checker/wp/2018/01/22/president-trumps-claim-that-nearly-3-in-4-convicted-of-terrorism-areforeign-born/?utm_term=.2df7ec64132c.

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1 attacks on September 11, 2011, 75% of those convicted were foreign born.”39 And former-

2 Attorney General Sessions stated in an appearance on a television news program: “we know that
3 . . . 73% of the people who’ve been arrested for terrorism came here—were born abroad.”40 This 4
was repeated in articles published by numerous media outlets and think tanks, which ran 5
headlines such as: “3 out of 4 convicted of terrorism are immigrants”41 and “DHS and DOJ 6 7 Report: 73 percent of Convicted Terrorists Were Foreign-born.”42 Because the Report was
8 presented as purportedly responsive to the requirements of Section 11 of EO 13780—which

9 requires an analysis of all terrorism-related offenses—that mischaracterization was a predictable

10 outcome of the Report and the agencies’ statements about it.
11 84. By contributing to the stigmatization of Muslims, the Report is also likely to contribute to 12
increases in associated hate speech and violence. As many experts have noted, public rhetoric 13 14 and policies targeting a disfavored group correlate with increases in violence targeting those
15 groups. 43 And in fact, multiple reports have found significant increases in hate incidents against

16

17 39 Press Release, H.R. Judiciary Comm., Goodlatte Statement on DOJ/DHS Report on

18

Immigration and National Security (Jan. 16, 2018), https://republicans-judiciary.house.gov/pressrelease/goodlatte-statement-doj-dhs-report-immigration-national-security/.

19 40 Attorney General Jeff Sessions and Tucker Carlson Discuss Immigration – MGTOW,

20 YouTube (Jan. 18, 2018), https://www.youtube.com/watch?v=o_244_Rf-Co (at 5:26).

41 Daniel Greenfield, 3 out of 4 convicted of terrorism are immigrants, FrontPage Mag (Jan. 16, 21 2018), https://www.frontpagemag.com/point/269046/3-out-4-convicted-terrorism-are-

22 immigrants-daniel-greenfield.

42 DHS and DOJ Report: 73 Percent of Convicted Terrorists Were Foreign-Born, NumbersUSA 23 (Jan. 16, 2018), https://www.numbersusa.com/news/dhs-and-doj-report-73-percent-convicted-

24 terrorists-were-foreign-born.

25 43 See Brian Levin, Explaining the Rise in Hate Crimes Against Muslims in the US, The

26

Conversation (July 19, 2017), https://theconversation.com/explaining-the-rise-in-hate-crimesagainst-muslims-in-the-us-80304 (“the rhetoric politicians use after terrorist attacks is correlated

27 closely to sharp increases…in hate crimes”); Responses to the Increase in Religious Hate Crimes; Hearing Before the S. Comm. On the Judiciary, 115th Cong. 5 (2017) (statement of

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1 Muslims and persons perceived to be Muslim since the beginning of Trump’s presidential

2 campaign and especially since the beginning of his presidency,44 and one report found an explicit

3 correlation to this administration’s anti-Muslim policies or slogans.45 If left uncorrected, the

4 Report is likely to contribute to this increase in violence and stigmatization experienced by
5 6 Muslim communities.

7

Plaintiff’s Petition

8 85. On January 29, 2018, Plaintiff sent a petition to DOJ and DHS setting forth the ways in

9 which the Report violates IQA Guidelines on information quality, as summarized in the

10 preceding paragraphs, and requesting a retraction of the Report. See Att. B. 11

12 Vanita Gupta, President, Leadership Conference on Civil and Human Rights),

13 http://bit.ly/2xa29Bp (“Policies singling out protected groups can normalize hate and legitimize hate-motivated violence directed at Muslims or people perceived to be Muslim.”).
14 44 See, e.g., CAIR Report Shows 2017 on Track to Becoming One of Worst Years Ever for Anti-

15 Muslim Hate Crimes, Council On Am.–Islamic Relations (July 17, 2017), https://www.cair.com/cair_report_shows_2017_on_track_to_becoming_one_of_worst_years_ev
16 er_for_anti_muslim_hate_crimes (reporting a 91 percent increase in the number of anti-Muslim

hate crimes during the first half of 2017); Christopher Ingraham, American Mosques—and 17 American Muslims—Are Being Targeted for Hate Like Never Before, Wash. Post (Aug. 8, 2017),

18

http://wapo.st/2x3nCty (documenting at least 85 anti-Muslim incidents at mosques during the first half of 2017); Katayoun Kishi, Assaults Against Muslims in U.S. Surpass 2001 Level, Pew

19 Research Ctr. (Nov. 15, 2017), http://www.pewresearch.org/fact-tank/2017/11/15/assaultsagainst-muslims-in-u-s-surpass-2001-level/; Chris Fuchs, Reported Anti-Muslim Hate Incidents,

20 Rhetoric Rose in Year After Election, Report Finds, NBC News (Feb. 1, 2018),

21

https://www.nbcnews.com/news/asian-america/reported-anti-muslim-hate-incidents-rhetoricrose-year-after-election-n843671; Laura Pitter, Hate Crimes Against Muslims in US Continue to

22

Rise in 2016, Human Rights Watch (May 11, 2017), https://www.hrw.org/news/2017/05/11/hatecrimes-against-muslims-us-continue-rise-2016.

23 45 See Report: Communities on Fire: Confronting Hate Violence and Xenophobic Political

24

Rhetoric, South Asian Americans Leading Together (SAALT), https://tinyurl.com/ycllxzd2 (documenting 302 incidents of hate incidents directed at Muslim, Arab, and South Asian

25 individuals between November 2016 and November 2017, an over 45 percent increase from the previous year; finding that 82 percent of those incidents were motivated by anti-Muslim
26 sentiment, that more than 213 involved actual violence (a 64 percent increase over the preceding

27

year); and reporting that almost 1 in 5 of these incidents involved perpetrators who specifically invoked President Trump’s name, policies, or campaign slogans.

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1 86. In the Petition, Plaintiff also explained that it is an “affected person” within the meaning

2 of the IQA and its implementing Guidelines because, among other reasons,

3

Muslim Advocates works to ensure that policies enacted under the banner of

4

national security do not wrongfully discriminate against Muslims and are not

based on inaccurate or misleading information.

5

Muslim Advocates uses reliable information concerning the American

6

immigration population in its work, and it, as well as its clients, is also “harmed”

7

by the dissemination of the Report, which seeks to portray immigrants, and particularly Muslim immigrants, as inherently violent and likely to commit acts of

8

terror. Moreover, the Report serves as a mechanism to justify the travel and refugee bans, which the Administration has attempted to justify, at least in part,

9

by reference to the kinds of inaccurate data and biased findings contained in the

Report. The Report serves as further post hoc justification for those efforts,

10

which directly harm Muslim Advocates and its clients.

11 87. The petition was sent via email and Federal Express. The Federal Express deliveries

12 arrived on January 30, 2018. 13
88. Under both DOJ and DHS Guidelines, Defendants had 60 days to respond for a request 14 15 for correction or to notify the requestor that additional time is needed.

16 89. As detailed below, Plaintiff did not receive even an acknowledgement letter from

17 Defendants until after the initial Complaint was filed in this case.

18

Defendants’ Responses to Plaintiff’s Petition

19 90. On June 15, 2018, after taking more than twice as much time as is permitted under its
20 IQA guidelines to respond, Defendant DOJ provided a letter acknowledging receipt. DOJ 21
further stated that additional time was required to “review and provide any response” and noted 22 23 that it anticipated doing so “within sixty (60) days of this letter.” Att. C.

24 91. Defendant DHS followed suit with a nearly identical acknowledgment letter on June 19,

25 2018. DHS likewise stated that an additional sixty (60) days was needed to review and provide a

26 response to the Petition. Att. D. 27

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1 92. DOJ provided its first substantive response to the Petition in a July 31, 2018 letter. Att.

2 E. This letter addressed briefly and inadequately the information quality errors set forth by
3 Plaintiff in the Petition. DOJ’s letter concluded that the agency’s IQA guidelines did not require 4
retraction or correction of the Report. See id. This conclusion was incorrect. 5 6 93. DHS provided a substantive response to the Petition on August 1, 2018. See Att. F. This 7 response’s analysis of the arguments set forth in the Petition was also incomplete and inadequate.
8 The response did acknowledge that DHS planned to “refine the available data, provide more

9 detail where practicable, and examine other datasets that might warrant release in the interest of

10 transparency,” taking the points raised in the Petition into consideration during the preparation of
11 future Section 11 reports. Id. at 2. Despite this tacit admission of the Petition’s merit, DHS 12
concluded that retraction or correction was not warranted. Id. 13 14 94. Both the July 31 DOJ letter and the August 1 DHS letter provided notice of the
15 opportunity to appeal the final decisions to deny the Petition.

16

Plaintiff’s Appeal Petitions

17 95. Muslim Advocates submitted administrative appeals to DOJ and DHS on September 13,
18 2018, requesting reconsideration of the agencies’ denials of Plaintiff’s Petition. Atts. G, H 19 (collectively the “Appeal Petitions”). 20
96. The Appeal Petitions explained that DOJ’s and DHS’s responses to the Petition were 21 22 inadequate and did not cure the information quality errors in the Report. Among the reasons
23 provided, the Appeal Petitions stated that:

24

a. The DOJ and DHS responses failed to engage meaningfully with the Petition’s arguments

25

that the substitution of “foreign-born” for “foreign national” results in a biased and

26

misleading presentation of the terrorist threat posed by immigrants, in violation of the

27

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1

IQA’s objectivity and utility requirements. Further, the responses failed to articulate a

2

reason why there is utility in distinguishing between U.S.-born and foreign-born citizens,

3

which does not reveal meaningful differences in rights or responsibilities, and is not a

4 distinction relied on by those who conduct counterterrorism work.

5

6

b. The decision to focus on international terrorism, and to ignore completely acts of

7

domestic terrorism, is neither objective nor useful because the omission artificially

8

inflates the proportion of terrorist incidents presented as having been committed by

9

foreign nationals and ignores a critical component of the counterterrorism discussion. In

10

their defense of the Report, Defendants asserted that data capturing instances of domestic

11

terrorism were not available to them, and that the Report was sufficiently clear about the

12 presentation of information. As the Appeal Petitions point out, however, such
13

14

information has been compiled by the government, including in the reports and studies

15

cited by Plaintiff, and so was readily available for Defendants in order to consider the

16

threat posed by domestic terrorism and thereby provide objective and useful information

17

to the public.

18

c. Defendants also failed to respond adequately to the Petition’s argument that the Report’s

19

inclusion of individuals who were only present in the United States because they were

20

brought here through extradition in the total number of terrorism-related convictions 21

22

misleadingly inflates the terrorist threat posed by foreign nationals. The responses’

23

assertion that these individuals were accurately described as having come to the United

24

States through extradition did not account for the misleading and useless presentation of

25

the information. Moreover, Defendants inexplicably failed to provide underlying data, in

26

27

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1

their possession, showing what percentage of the total number of individuals identified in

2

the Report were included based on their extradition to the United States.

3

d. Defendants’ attempts to justify the Report’s profiling of eight “illustrative examples,” all

4 of which appear to be Muslim men who arrived in the United States through the precise

5

6

immigration provisions the Administration has sought to eliminate, were unpersuasive.

7

Plaintiffs’ criticism is not “subjective,” as asserted by Defendants, but based in the

8

objectivity and utility requirements of the IQA. Compounding this problem, the Report

9

had failed to include any of the underlying data that might have allowed an outside

10

observe to test whether these eight examples were, in any sense, illustrative, an omission

11

the responses further failed to explain or discuss.

12 e. Finally, Defendants failed to address adequately the misleading and anti-Muslim
13

14

information disseminated concerning so-called “honor killings,” which the Report

15

portrays as a substantial issue in the United States, in part by relying on irrelevant and

16

inaccurate data. The DHS and DOJ responses did not address specifically the Report’s

17

inclusion of discredited and irrelevant data sources. The responses further asserted that

18

the Report noted the lack of aggregate data discussing “honor violence” and that this

19

transparency was sufficient. But none of these defenses save the Report, which fails to

20

meet the IQA’s objectivity requirement. 21

22 97. The Appeal Petitions also emphasized the ways in which the Administration—both

23 President Trump and Defendants—has used the Report to further stigmatize immigrants as

24 dangerous and likely to be terrorists; important context for understanding the Report’s bias.

25 98. Contemporaneously with the submission of the Appeal Petitions, a group of former
26 officials with extensive counter terrorism experiences submitted a letter to Defendants in support 27

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1 of Plaintiff’s appeals. See Att. A. This letter reinforced many of the arguments made by

2 Plaintiff and further explained how continued dissemination of the Report can inflict damage on

3 vital counterterrorism efforts. Id. at 3. As the authors of the letter stated, “[a]llowing

4 misunderstandings to continue to circulate would undermine the objectives of effective
5 6 counterterrorism policy and exacerbate the fear and division that terrorists seek to create.” Id.

7

Defendants’ Responses to the Appeal Petitions

8 99. DOJ did not acknowledge receipt of the administrative appeal until October 24, 2018,

9 and offered no substantive response at that time, asserting instead that it would take an additional

10 forty-five (45) days to review and provide a further response. Att. I.

11 100. DOJ responded substantively to the Appeal Petition by letter dated December 21, 2018. 12
In this response, DOJ admitted that Plaintiff had raised valid concerns about the quality of the 13 14 information presented in the Report. Specifically, DOJ stated that

15

[T]he Department concludes on reconsideration that information in the Report could be criticized by some readers, consistent with some of the concerns voiced in your Request

16

for Reconsideration. … Working closely with DHS, the Department will consider IQA

principles in issuing future reports under Section 11 of Executive Order 13780 to better

17

present such information to the public.

18 See Att. J at 1 (emphasis added).
19 101. Despite this admission, DOJ declined to retract or correct the Report. The justification it 20
provided for doing so is inadequate and incorrect in light of the information submitted in support 21 22 of the request for retraction.

23 102. DHS was even tardier in its response to the administrative appeal, acknowledging receipt

24 on November 7, 2018, and stating that it would take an additional 45 days to review and consider

25 its response. Att. K. On December 19, 2018, DHS again informed Plaintiff that it would take an 26

27

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1 additional 45 days to respond. Att. L. On January 31, 2019, DHS again stated by letter that it

2 would take an additional 45 days to respond. Att. M.46
3 103. Finally, on February 14, 2019—155 days since the Plaintiff submitted its administrative 4
appeal—DHS provided a substantive response. Att. N. 5 6 104. DHS acknowledged the validity of Plaintiff’s information quality concerns, stating, “it 7 will take into consideration in future Section 11 Reports those points raised in both your
8 Requests for Correction and Reconsideration.” Id. at 1. Further, DHS admitted that Plaintiff’s

9 contention regarding the bias in the selection of the eight illustrative examples “is well-taken.”

10 Id. at 2.
11 105. Nevertheless, DHS declined to retract or correct the Report. Id. The justification it 12
provided for doing so is inadequate and incorrect in light of the information submitted in support 13 14 of the request for retraction.
15 106. Defendants continue to promulgate the Report on their respective websites.

16

Claim for Relief: Violation of the Administrative Procedure Act

17 107. Plaintiff hereby incorporates all allegations in the above paragraphs as if fully set forth

18 herein. 19 108. The IQA, OMB’s IQA Guidelines, and DOJ and DHS’s IQA Guidelines require that 20
information disseminated by agencies meet a requisite level of quality. 21 22 109. The Report is information disseminated by Defendants within the meaning of the IQA
23 and its implementing Guidelines.

24 110. The Report fails the objectivity and utility requirements of information quality; instead, it

25 presents information in a deceptive, misleading, and incomplete manner, and in so doing, 26

27 46 This delay was apparently attributable to the lapse in appropriations.

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1 misrepresents the actual terror threat to the country, artificially inflating the threat that

2 immigrants and Muslims pose to the United States.

3 111. Defendants’ ongoing dissemination of the Report following their denials of Plaintiffs’ 4
Petition and Appeal Petitions violates the IQA and its implementing Guidelines, and is therefore 5 6 arbitrary, capricious, an abuse of discretion, not in accordance with law, without observance of
7 procedure required by law, and otherwise violative of the APA, 5 U.S.C. § 706(2).

8

Prayer for Relief

9 WHEREFORE, Plaintiff prays that this Court grant the following relief:

10

1. Declare that the Report disseminates information that fails the standard of quality

11

required of federal agencies;

12 2. Declare that Defendants violated the IQA, its implementing Guidelines, and the APA;
13

14

3. Order Defendants to expressly retract or correct the Report and to cease dissemination of

15

the Report;

16

4. Award Plaintiff its costs, reasonable attorneys’ fees, and other disbursements incurred in

17

this action; and

18

5. Grant such other relief as the Court may deem just and proper.

19 Date: April 1, 2019 20 21 22 23 24 25

Respectfully submitted,
/s/ Robin F. Thurston_______________ Robin F. Thurston (pro hac vice) Benjamin Seel (pro hac vice application to be filed) Democracy Forward Foundation P.O. Box 34553 Washington, DC 20043 (202) 448-9090 rthurston@democracyforward.org bseel@democracyforward.org

26

Sirine Shebaya (pro hac vice)

27

Muslim Advocates

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 First Amended Complaint

P.O. Box 66408 Washington, DC 20035 (202) 879-2622 sirine@muslimadvocates.org, Aaron M. Olsen (CA Bar No. 259923) Haeggquist and Eck LLP 225 Broadway, Suite 2050 San Diego, CA 92101 (619) 342-8000 aarono@haelaw.com Counsel for Plaintiff
Case No:18-cv-02137-JSC 33