U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:20-cv-02040-CRC

TYPE-D

DON'T SHOOT PORTLAND et al v. WOLF et al Assigned to: Judge Christopher R. Cooper Cause: 05:0706 Judicial Review of Agency Actions

Date Filed: 07/27/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff DON'T SHOOT PORTLAND

represented by Matthew D. Forbes DEBEVOISE & PLIMPTON LLP 919 Third Avenue New York, NY 10022 212-909-6000 Fax: 212-909-6836 Email: mforbes@debevoise.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ashley V. Hahn DEBEVOISE & PLIMPTON LLP 919 Third Avenue New York, NY 10022 212-909-6000 Fax: 212-909-6836 Email: avhahn@debevoise.com ATTORNEY TO BE NOTICED

Benjamin Leon Berwick THE PROJECT DEMOCRACY PROJECT, INC 15 Main Street Suite 312 Watertown, MA 02472 (202) 579-4582 Fax: (929) 777-8428 Email: ben.berwick@protectdemocracy.org ATTORNEY TO BE NOTICED

Christine Kwon PROTECT DEMOCRACY 555 W. 5th St. Los Angeles, CA 90013 310-938-7807 Email: christine.kwon@protectdemocracy.org PRO HAC VICE ATTORNEY TO BE NOTICED
Deana K El-Mallawany PROTECT DEMOCRACY 15 Main Street Suite 312 Watertown, MA 02472 646-943-3755 Email: deana.elmallawany@protectdemocracy.org PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica A. Marsden PROTECT DEMOCRACY PROJECT 510 Meadowmont Village Circle, No. 328 Chapel Hill, NC 27517 202-579-4582 Email: jess.marsden@protectdemocracy.org ATTORNEY TO BE NOTICED
Justin G. Florence PROTECT DEMOCRACY 15 Main Street Suite 312 Watertown, MA 02472 202-774-4234 Email: justin.florence@protectdemocracy.org ATTORNEY TO BE NOTICED
Laura Emily O'Neill DEBEVOISE & PLIMPTON LLP 801 Pennsylvania Avenue, N.W. Washington, DC 20004 (202) 383-8112

Plaintiff WALL OF MOMS

Fax: (202) 383-8118 Email: leoneill@debevoise.com ATTORNEY TO BE NOTICED
Rachel F. Homer PROTECT DEMOCRACY 2020 Pennsylvania Ave NW Ste Unit 163 Washington, DC 20006 202-997-2166 Email: rachel.homer@protectdemocracy.org ATTORNEY TO BE NOTICED
David A. O'Neil DEBEVOISE & PLIMPTON LLP 801 Pennsylvania Avenue NW Ste 500 Washington, DC 20004 (202) 383-8040 Fax: (202) 383-8118 Email: daoneil@debevoise.com ATTORNEY TO BE NOTICED
represented by Matthew D. Forbes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Leon Berwick (See above for address) ATTORNEY TO BE NOTICED
Christine Kwon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Deana K El-Mallawany (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica A. Marsden (See above for address)

Plaintiff BEVERLEY BARNUM

ATTORNEY TO BE NOTICED
Justin G. Florence (See above for address) ATTORNEY TO BE NOTICED
Laura Emily O'Neill (See above for address) ATTORNEY TO BE NOTICED
Rachel F. Homer (See above for address) ATTORNEY TO BE NOTICED
David A. O'Neil (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew D. Forbes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ashley V. Hahn (See above for address) ATTORNEY TO BE NOTICED
Benjamin Leon Berwick (See above for address) ATTORNEY TO BE NOTICED
Christine Kwon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Deana K El-Mallawany (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica A. Marsden (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff SABRINA CERQUERA

Justin G. Florence (See above for address) ATTORNEY TO BE NOTICED
Laura Emily O'Neill (See above for address) ATTORNEY TO BE NOTICED
Rachel F. Homer (See above for address) ATTORNEY TO BE NOTICED
David A. O'Neil (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew D. Forbes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ashley V. Hahn (See above for address) ATTORNEY TO BE NOTICED
Benjamin Leon Berwick (See above for address) ATTORNEY TO BE NOTICED
Christine Kwon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Deana K El-Mallawany (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica A. Marsden (See above for address) ATTORNEY TO BE NOTICED
Justin G. Florence

Plaintiff DEMETRIA HESTER

(See above for address) ATTORNEY TO BE NOTICED
Laura Emily O'Neill (See above for address) ATTORNEY TO BE NOTICED
Rachel F. Homer (See above for address) ATTORNEY TO BE NOTICED
David A. O'Neil (See above for address) ATTORNEY TO BE NOTICED
represented by Ashley V. Hahn (See above for address) ATTORNEY TO BE NOTICED
Benjamin Leon Berwick (See above for address) ATTORNEY TO BE NOTICED
Christine Kwon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Deana K El-Mallawany (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica A. Marsden (See above for address) ATTORNEY TO BE NOTICED
Justin G. Florence (See above for address) ATTORNEY TO BE NOTICED
Laura Emily O'Neill (See above for address) ATTORNEY TO BE NOTICED

Plaintiff DANIALLE JAMES

Rachel F. Homer (See above for address) ATTORNEY TO BE NOTICED
David A. O'Neil (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew D. Forbes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ashley V. Hahn (See above for address) ATTORNEY TO BE NOTICED
Benjamin Leon Berwick (See above for address) ATTORNEY TO BE NOTICED
Christine Kwon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Deana K El-Mallawany (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica A. Marsden (See above for address) ATTORNEY TO BE NOTICED
Justin G. Florence (See above for address) ATTORNEY TO BE NOTICED
Laura Emily O'Neill (See above for address) ATTORNEY TO BE NOTICED
Rachel F. Homer (See above for address)

Plaintiff LISA KIPERSZTOK

ATTORNEY TO BE NOTICED
David A. O'Neil (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew D. Forbes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ashley V. Hahn (See above for address) ATTORNEY TO BE NOTICED
Benjamin Leon Berwick (See above for address) ATTORNEY TO BE NOTICED
Christine Kwon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Deana K El-Mallawany (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica A. Marsden (See above for address) ATTORNEY TO BE NOTICED
Justin G. Florence (See above for address) ATTORNEY TO BE NOTICED
Laura Emily O'Neill (See above for address) ATTORNEY TO BE NOTICED
Rachel F. Homer (See above for address) ATTORNEY TO BE NOTICED

David A. O'Neil (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
CHAD F. WOLF in his official capacity as the purported Acting Secretary of Homeland Security

represented by Jason C. Lynch U.S. DEPARTMENT OF JUSTICE Federal Programs Branch 1100 L Street NW Washington, DC 20005 202-514-1359 Email: Jason.Lynch@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jordan Landrum von Bokern U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street NW Washington, DC 20005 202-305-7919 Email: Jordan.L.Von.Bokern2@usdoj.gov ATTORNEY TO BE NOTICED

Joshua Edward Gardner UNITED STATES DEPARTMENT OF JUSTICE Civil Division Federal Programs Branch 1100 L Street, N.W. Washington, DC 20005 (202) 305-7583 Fax: (202) 616-8470 Email: joshua.e.gardner@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
KENNETH T. CUCCINELLI, II in his official capacity as the purported Senior Official Performing the Duties of the Deputy Secretary of the Department of Homeland

represented by Jason C. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan Landrum von Bokern (See above for address)

Security and the purported Senior Official Performing the Duties of the Director of U.S. Citizenship and Immigration Ser

ATTORNEY TO BE NOTICED
Joshua Edward Gardner (See above for address) ATTORNEY TO BE NOTICED

Defendant
MARK A. MORGAN in his official capacity as the purported Acting Commissioner for U.S. Customs and Border Protection

represented by Jason C. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan Landrum von Bokern (See above for address) ATTORNEY TO BE NOTICED

Joshua Edward Gardner (See above for address) ATTORNEY TO BE NOTICED

Defendant
MATTHEW T. ALBENCE in his official capacity as the purported Deputy Director and Senior Official Performing the Duties of the Director of U.S. Immigration and Customs Enforcement

represented by Jason C. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan Landrum von Bokern (See above for address) ATTORNEY TO BE NOTICED

Joshua Edward Gardner (See above for address) ATTORNEY TO BE NOTICED

Defendant
L. ERIC PATTERSON in his official capacity as the Director of the Federal Protective Service

represented by Jason C. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jordan Landrum von Bokern (See above for address) ATTORNEY TO BE NOTICED

Joshua Edward Gardner

(See above for address) ATTORNEY TO BE NOTICED

Defendant
U.S. DEPARTMENT OF HOMELAND SECURITY

represented by Jason C. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jordan Landrum von Bokern (See above for address) ATTORNEY TO BE NOTICED

Joshua Edward Gardner (See above for address) ATTORNEY TO BE NOTICED

Defendant
U.S. CUSTOMS AND BORDER PROTECTION

represented by Jason C. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jordan Landrum von Bokern (See above for address) ATTORNEY TO BE NOTICED

Joshua Edward Gardner (See above for address) ATTORNEY TO BE NOTICED

Defendant
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT

represented by Jason C. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jordan Landrum von Bokern (See above for address) ATTORNEY TO BE NOTICED

Joshua Edward Gardner (See above for address) ATTORNEY TO BE NOTICED

Defendant
FEDERAL PROTECTIVE SERVICE

represented by Jason C. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jordan Landrum von Bokern (See above for address) ATTORNEY TO BE NOTICED

Joshua Edward Gardner (See above for address) ATTORNEY TO BE NOTICED

Defendant
WILLIAM BARR in his official capacity as the Attorney General of the United States

represented by Jason C. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jordan Landrum von Bokern (See above for address) ATTORNEY TO BE NOTICED

Joshua Edward Gardner (See above for address) ATTORNEY TO BE NOTICED

Defendant

DONALD W. WASHINGTON in his official capacity as the Director of the U.S. Marshals Service

represented by Jason C. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jordan Landrum von Bokern (See above for address) ATTORNEY TO BE NOTICED

Joshua Edward Gardner (See above for address) ATTORNEY TO BE NOTICED

Defendant

U.S. DEPARTMENT OF JUSTICE

represented by Jason C. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jordan Landrum von Bokern (See above for address) ATTORNEY TO BE NOTICED

Joshua Edward Gardner (See above for address) ATTORNEY TO BE NOTICED

Defendant U.S. MARSHALS SERVICE

represented by Jason C. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jordan Landrum von Bokern (See above for address) ATTORNEY TO BE NOTICED

Joshua Edward Gardner (See above for address) ATTORNEY TO BE NOTICED

Defendant
KIMBERLY M. FOXX States Attorney, Cook County, Illinois

represented by Loren Kieve KIEVE LAW OFFICES 2655 Steiner San Francisco, CA 94115 415-425-2655 Fax: 435-304-0060 Email: lk@kievelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
CHIRAAG BAINS Former Trial Attorney, Criminal Section, Civil Rights Division, U.S. Department of Justice

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

PAUL BARDACKE Former Attorney General, New Mexico

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
DIANA BECTON District Attorney, Contra Costa County, California

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
WESLEY BELL Prosecuting Attorney, St. Louis County, Missouri

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
BUTA BIBERAJ Commonwealths Attorney, Loudoun County, Virginia

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
SHERRY BOSTON District Attorney, DeKalb County, Georgia

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
CHESA BOUDIN District Attorney, City and County of San Francisco, California

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
JOSEPH BRANN Former Chief, Hayward Police Department, California

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

AISHA BRAVEBOY States Attorney, Prince Georges County, Maryland

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
KENYEN BROWN Former U.S. Attorney, Southern District of Alabama

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
JIM BUEERMANN Former Chief, Redlands Police Department, California

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
JOHN CHOI County Attorney, Ramsey County, Minnesota

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
JERRY L. CLAYTON Sheriff, Washtenaw County, Michigan

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
DAVE CLEGG District Attorney, Ulster County, New York

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
SHAMECA COLLINS District Attorney, 6th Judicial District, Mississippi

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

SCOTT COLOM District Attorney, 16th Judicial District, Mississippi

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
BRENDAN COX Former Chief, Albany Police Department, New York

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

JOHN CREUZOT District Attorney, Dallas County, Texas

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
RONALD L. DAVIS Knoxville Former Director, Office of Community Oriented Policing Services, U.S. Department of Justice

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
SATANA DEBERRY District Attorney, Durham County, North Carolina

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
PARISA DEHGHANI-TAFTI Commonwealths Attorney, Arlington County and the

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
BRANDON DEL POZO Former Chief, Burlington Police Department, Vermont

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

DRES DIAMOND Former Chief, Tulsa Police Department, Oklahoma

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
THOMAS J. DONOVAN, JR., Attorney General, Vermont

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
MICHAEL DOUGHERTY District Attorney, 20th Judicial District, Colorado

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
MARK DUPREE District Attorney, Wyandotte County, Kansas

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
KEITH ELLISON Attorney General, Minnesota

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
ROBERT W. FERGUSON Attorney General, Washington

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
BRIAN E. FROSH Attorney General, Maryland

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

DOUGLAS GANSLER Former Attorney General, Maryland

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
GIL GARCETTI Former District Attorney, Los Angeles County, California

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
KIMBERLY GARDNER Circuit Attorney, City of St. Louis, Missouri

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
SARAH F. GEORGE States Attorney, Chittenden County, Vermont

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
JOE GONZALES District Attorney, Bexar County, Texas

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
ERIC GONZALEZ District Attorney, Kings County, New York

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

MARK GONZALEZ

represented by Loren Kieve

District Attorney, Nueces County,

(See above for address)

Texas

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Amicus

ANDREA HARRINGTON District Attorney, Berkshire County, Massachusetts

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
SCOTT HARSHBARGER Former Attorney General, Massachusetts

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
JIM HINGELEY Commonwealths Attorney, Albemarle County, Virginia

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
JOHN HUMMEL District Attorney, Deschutes County, Oregon

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

SUSAN HUTSON Former Chief Prosecutor, City of Corpus Christi, Texas

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
NATASHA IRVING District Attorney, 6th Prosecutorial District, Maine

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

MICHAEL JACKSON 66043 District Attorney, Dallas County, Alabama

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

KATHLEEN JENNINGS Attorney General, Delaware

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
JUSTIN F. KOLLAR Prosecuting Attorney, Kauai County, Hawaii

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
LAURENCE S. KRASNER District Attorney, Philadelphia, Pennsylvania

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
MIRIAM ARONI KRINSKY Former Assistant U.S. Attorney, Criminal Appellate Chief, and General Crimes Chief, Central District of California

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
WILLIAM LANSDOWNE Former Chief, San Diego Police Department, California

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
PATRICIA MADRID Former Attorney General, New Mexico

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
GARRY MCFADDEN Sheriff, Mecklenburg County, North Carolina

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

BRIAN MIDDLETON District Attorney, Fort Bend County, Texas

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
STEPHANIE MORALES Commonwealths Attorney, Portsmouth, Virginia

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
MARILYN J. MOSBY States Attorney, Baltimore City, Maryland

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
JEROME O'NEIL Former Acting U.S. Attorney, District of Vermont

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
JODY OWENS District Attorney, Hinds County, Mississippi

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
JIM PETRO Former Attorney General, Ohio

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

CHANNING PHILLIPS Former U.S. Attorney, District of Columbia

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

BRYAN PORTER Commonwealths Attorney, City of Alexandria, Virginia

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
ABDUL PRIDGEN Chief, Seaside Police Department, California

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
KARL A. RACINE Attorney General, District of Columbia

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
KWAME RAOUL Attorney General, Illinois

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
IRA REINER Former District Attorney, Los Angeles County, California

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

RACHAEL ROLLINS District Attorney, Suffolk County, Massachusetts

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
ELLEN ROSEMBLUM Attorney General, Oregon

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

STEPHEN ROSENTHAL Former Attorney General, Virginia

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
MARIAN T. RYAN District Attorney, Middlesex County, Massachusetts

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
DAN SATTERBERG Prosecuting Attorney, King County, Washington

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
MIKE SCHMIDT District Attorney, Multnomah County, Oregon

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
RONAL SERPAS Former Superintendent, New Orleans Police Department, Louisiana

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
DANIELLA SHORTER District Attorney, 22nd Judicial District, Mississippi

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
CAROL A. SIEMON Prosecuting Attorney, Ingham County, Michigan

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

NORM STAMPER Former Chief, Seattle Police Department, Washington

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
DAVID E. SULLIVAN District Attorney, Northwestern District, Massachusetts

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
SHANNON TAYLOR Commonwealths Attorney, Henrico County, Virginia

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
RAUL TORREZ District Attorney, Bernalillo County, New Mexico

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
GREGORY UNDERWOOD Commonwealths Attorney, City of Norfolk, Virginia

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
MATTHEW VAN HOUTEN District Attorney, Tompkins County, New York

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
ANDREW WARREN District Attorney, 13th Judicial Circuit, Florida

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

LYNNEICE WASHINGTON District Attorney, Jefferson County, Bessemer Division

represented by Loren Kieve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
CONSTITUTIONAL ACCOUNTABILITY CENTER

represented by Brianne Jenna Gorod CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th Street, NW Suite 501 Washington, DC 20036 (202) 296-6889 ext. 304 Email: brianne@theusconstitution.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/27/2020
07/27/2020

# Docket Text

COMPLAINT against MATTHEW T. ALBENCE, WILLIAM

1

BARR, KEN CUCCINELLI, FEDERAL PROTECTIVE

SERVICE, MARK A. MORGAN, L. ERIC PATTERSON, U.S.

CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT

OF HOMELAND SECURITY, U.S. DEPARTMENT OF

JUSTICE, U.S. IMMIGRATION AND CUSTOMS

ENFORCEMENT, U.S. MARSHALS SERVICE, DONALD W.

WASHINGTON, CHAD F. WOLF ( Filing fee $ 400 receipt

number ADCDC-7389318) filed by LISA KIPERSZTOK, WALL

OF MOMS, DON'T SHOOT PORTLAND, DANIALLE JAMES,

BEVERLEY BARNUM, SABRINA CERQUERA, DEMETRIA

HESTER. (Attachments: # 1 Civil Cover Sheet, # 2 Summons to

Chad F. Wolf, # 3 Summons to Ken Cuccinelli, # 4 Summons to

Mark A. Morgan, # 5 Summons to Matthew T. Albence,

# 6 Summons to L. Eric Patterson, # 7 Summons to U.S.

Department of Homeland Security, # 8 Summons to U.S. Customs

and Border Protection, # 9 Summons to U.S. Immigration and

Customs Enforcement, # 10 Summons to Federal Protective

Service, # 11 Summons to William Barr, # 12 Summons to Donald

W. Washington, # 13 Summons to U.S. Department of Justice,

# 14 Summons to U.S. Marshals Service)(O'Neil, David) (Entered:

07/27/2020)

2 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests indicating no parent corporation

07/27/2020 07/28/2020 07/28/2020
07/28/2020
07/28/2020 07/28/2020 07/28/2020

and no publicly-held corporation owns 10% or more of its stock. by BEVERLEY BARNUM, SABRINA CERQUERA, DON'T SHOOT PORTLAND, DEMETRIA HESTER, DANIALLE JAMES, LISA KIPERSZTOK, WALL OF MOMS (O'Neil, David) (Entered: 07/27/2020)
3 ERRATA / Corrected Civil Cover Sheet by BEVERLEY BARNUM, SABRINA CERQUERA, DON'T SHOOT PORTLAND, DEMETRIA HESTER, DANIALLE JAMES, LISA KIPERSZTOK, WALL OF MOMS. (O'Neil, David) (Entered: 07/27/2020)
Case assigned to Judge Christopher R. Cooper. (zmc) (Entered: 07/28/2020)
4 SUMMONS (12) Issued Electronically as to MATTHEW T. ALBENCE, WILLIAM BARR, KEN CUCCINELLI, FEDERAL PROTECTIVE SERVICE, MARK A. MORGAN, L. ERIC PATTERSON, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. MARSHALS SERVICE, DONALD W. WASHINGTON, CHAD F. WOLF. (Attachment: # 1 Notice and Consent)(zmc) (Entered: 07/28/2020)
5 REQUEST FOR SUMMONS TO ISSUE to U.S. Attorney General
William P. Barr re 1 Complaint,,,, filed by LISA KIPERSZTOK, WALL OF MOMS, DON'T SHOOT PORTLAND, DANIALLE JAMES, BEVERLEY BARNUM, SABRINA CERQUERA, DEMETRIA HESTER. Related document: 1
Complaint,,,, filed by BEVERLEY BARNUM, WALL OF MOMS, LISA KIPERSZTOK, DANIALLE JAMES, DEMETRIA HESTER, DON'T SHOOT PORTLAND, SABRINA CERQUERA. (Attachments: # 1 Summons to United State Attorney's Office for the District of Columbia, # 2 Summons to U.S. Customs and Border Protection)(O'Neil, David) (Entered: 07/28/2020)
6 NOTICE of Appearance by Justin G. Florence on behalf of All Plaintiffs (Florence, Justin) (Entered: 07/28/2020)
7 NOTICE of Appearance by Benjamin Leon Berwick on behalf of All Plaintiffs (Berwick, Benjamin) (Entered: 07/28/2020)
8 MOTION for Leave to Appear Pro Hac Vice :Attorney NameJessica A. Marsden, Filing fee $ 100, receipt number ADCDC-

7396427. Fee Status: Fee Paid. by BEVERLEY BARNUM, SABRINA CERQUERA, DON'T SHOOT PORTLAND, DEMETRIA HESTER, DANIALLE JAMES, LISA KIPERSZTOK, WALL OF MOMS (Attachments: # 1 Declaration of Jessica A. Marsden, # 2 Text of Proposed Order)(Berwick, Benjamin) (Entered: 07/28/2020)

07/28/2020

9 MOTION for Leave to Appear Pro Hac Vice :Attorney NameChristine Kwon, Filing fee $ 100, receipt number ADCDC7396454. Fee Status: Fee Paid. by BEVERLEY BARNUM, SABRINA CERQUERA, DON'T SHOOT PORTLAND, DEMETRIA HESTER, DANIALLE JAMES, LISA KIPERSZTOK, WALL OF MOMS (Attachments: # 1 Declaration of Christine Kwon, # 2 Text of Proposed Order)(Berwick, Benjamin) (Entered: 07/28/2020)

07/28/2020

10 MOTION for Leave to Appear Pro Hac Vice :Attorney NameDeana K. El-Mallawany, Filing fee $ 100, receipt number ADCDC7396508. Fee Status: Fee Paid. by BEVERLEY BARNUM, SABRINA CERQUERA, DON'T SHOOT PORTLAND, DEMETRIA HESTER, DANIALLE JAMES, LISA KIPERSZTOK, WALL OF MOMS (Attachments: # 1 Declaration of Deana K. El-Mallawany, # 2 Text of Proposed Order)(Berwick, Benjamin) (Entered: 07/28/2020)

07/29/2020

11 NOTICE of Appearance by Rachel F. Homer on behalf of All Plaintiffs (Homer, Rachel) (Entered: 07/29/2020)

07/29/2020

12 SUMMONS (3) Issued Electronically as to U.S. Customs and Border Protection, U.S. Attorney and U.S. Attorney General (ztd) Modified on 7/29/2020 (ztd). (Entered: 07/29/2020)

07/29/2020

MINUTE ORDER granting 8 , 9 , and 10 Motions for Leave to Appear Pro Hac Vice. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Christopher R. Cooper on 7/29/20. (lccrc1) (Entered: 07/29/2020)

07/29/2020

13 NOTICE of Appearance by Jordan Landrum von Bokern on behalf of All Defendants (von Bokern, Jordan) (Entered: 07/29/2020)

08/04/2020 14

NOTICE of Appearance by Jessica A. Marsden on behalf of All Plaintiffs (Marsden, Jessica) (Entered: 08/04/2020)

08/04/2020

15 NOTICE of Appearance by Christine Kwon on behalf of All Plaintiffs (Kwon, Christine) (Entered: 08/04/2020)

08/04/2020 08/26/2020
08/26/2020 09/23/2020 10/01/2020 10/01/2020 10/01/2020

16 NOTICE of Appearance by Deana K El-Mallawany on behalf of All Plaintiffs (El-Mallawany, Deana) (Entered: 08/04/2020)
17 ENTERED IN ERROR. . . . .RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. MATTHEW T. ALBENCE served on 8/11/2020; WILLIAM BARR served on 8/11/2020; KEN CUCCINELLI served on 8/11/2020; FEDERAL PROTECTIVE SERVICE served on 8/11/2020; MARK A. MORGAN served on 8/11/2020; L. ERIC PATTERSON served on 8/11/2020; U.S. CUSTOMS AND BORDER PROTECTION served on 8/11/2020; U.S. DEPARTMENT OF HOMELAND SECURITY served on 8/11/2020; U.S. DEPARTMENT OF JUSTICE served on 8/11/2020; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT served on 8/11/2020; U.S. MARSHALS SERVICE served on 8/11/2020; DONALD W. WASHINGTON served on 8/11/2020; CHAD F. WOLF served on 8/11/2020 (O'Neil, David) Modified on 8/26/2020 (ztd). (Entered: 08/26/2020)
NOTICE OF ERROR re 17 Summons Returned Executed as to Federal Defendant; emailed to daoneil@debevoise.com, cc'd 16 associated attorneys -- The PDF file you docketed contained errors: 1. Incorrect event used, 2. Please refile document, 3. Refile as Affidavit found under Other Documents. The attached document just indicates that the documents were taken to the post office. Need receipts that docs have been delivered. (ztd, ) (Entered: 08/26/2020)
18 NOTICE of Appearance by Jason C. Lynch on behalf of All Defendants (Lynch, Jason) (Entered: 09/23/2020)
19 NOTICE of Appearance by Laura Emily O'Neill on behalf of All Plaintiffs (O'Neill, Laura) (Entered: 10/01/2020)
20 MOTION for Leave to Appear Pro Hac Vice :Attorney NameMatthew D. Forbes, Filing fee $ 100, receipt number ADCDC7663392. Fee Status: Fee Paid. by BEVERLEY BARNUM, SABRINA CERQUERA, DON'T SHOOT PORTLAND, DEMETRIA HESTER, DANIALLE JAMES, LISA KIPERSZTOK, WALL OF MOMS (Attachments: # 1 Declaration of Matthew D. Forbes)(O'Neill, Laura) (Entered: 10/01/2020)
21 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. MATTHEW T. ALBENCE served on 8/10/2020; KENNETH T. CUCCINELLI, II served on 8/10/2020; FEDERAL PROTECTIVE SERVICE served on 8/10/2020; MARK A. MORGAN served on 8/10/2020; L. ERIC PATTERSON served on 8/10/2020; U.S. CUSTOMS AND BORDER PROTECTION served on 8/10/2020; U.S. DEPARTMENT OF HOMELAND

10/02/2020 10/02/2020 10/02/2020

SECURITY served on 8/10/2020; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT served on 8/10/2020; CHAD F. WOLF served on 8/10/2020 (Attachments: # 1 Affidavit of Service, # 2 Exhibit 1: Caption Addendum, # 3 Exhibit 2: U.S. Department of Justice-registered mail receipt confirmation, # 4 Exhibit 3: U.S. Marshals Service Registered Mail Receipt and USPS delivery confirmation, # 5 Exhibit 4: Donald W. Washington-Registered Mail Receipt and USPS delivery confirmation, # 6 Exhibit 5: U.S. Marshals Service-Registered Mail Receipt and USPS delivery confirmation, # 7 Exhibit 6: Donald W. Washington-Registered Mail Receipt and USPS delivery confirmation, # 8 Exhibit 7: U.S. Immigration and Customs Enforcement-Registered Mail Receipt and USPS delivery, # 9 Exhibit 8: U.S. Customs and Border Protection-Registered Mail Receipt and USPS delivery confirmation, # 10 Exhibit 9: U.S. Department of Homeland Security - Registered Mail Receipt and USPS delivery confirmation, # 11 Exhibit 10: L. Eric Patterson-Registered Mail Receipt and USPS delivery confirmation, # 12 Exhibit 11: Matthew T. Albence-Registered Mail Receipt and USPS delivery confirmation, # 13 Exhibit 12: Mark A. Morgan-Registered Mail Receipt and USPS delivery, # 14 Exhibit 13: Ken CuccinelliRegistered Mail Receipt and USPS delivery confirmation, # 15 Exhibit 14: Chad F. Wolf-Registered Mail Receipt and USPS delivery confirmation, # 16 Exhibit 15: William Barr, U.S. Attorney General-Registered Mail Receipt confirmation, # 17 Exhibit 16: U.S. Attorney General c.o. Department of Justice, Justice Management Division-registered mail receipt confirmation, # 18 Exhibit 17: U.S. Attorney's Office Civil Process ClerkRegistered Mail Receipt confirmation, # 19 Exhibit 18: Federal Protective Service-Registered Mail Receipt and USPS delivery confirmation)(O'Neill, Laura) (Entered: 10/01/2020)
MINUTE ORDER granting 20 Motion for Leave to Appear Pro Hac Vice. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Clic k for instructions. Signed by Judge Christopher R. Cooper on 10/02/2020. (lccrc3) (Entered: 10/02/2020)
22 NOTICE of Appearance by Matthew D. Forbes on behalf of BEVERLEY BARNUM, SABRINA CERQUERA, DON'T SHOOT PORTLAND, DANIALLE JAMES, LISA KIPERSZTOK, WALL OF MOMS (Forbes, Matthew) (Entered: 10/02/2020)
NOTICE OF ERROR re 19 Notice of Appearance; emailed to leoneill@debevoise.com, cc'd 19 associated attorneys -- The PDF file you docketed contained errors: 1. Reminder for future filings to

10/02/2020 10/09/2020
23
10/13/2020
10/15/2020 24
10/29/2020 25

add the case number on your documents. (ztd, ) (Entered: 10/02/2020)
NOTICE OF ERROR re 20 Motion for Leave to Appear Pro Hac Vice; emailed to leoneill@debevoise.com, cc'd 19 associated attorneys -- The PDF file you docketed contained errors: 1. Counsel must do the entries for the U.S. Attorney and Attorney General on the docket. (ztd, ) (Entered: 10/02/2020)
Consent MOTION for Extension of Time to File Answer re 1
Complaint,,,, from October 13, 2020, to October 15, 2020, by MATTHEW T. ALBENCE, WILLIAM BARR, KENNETH T. CUCCINELLI, II, FEDERAL PROTECTIVE SERVICE, MARK A. MORGAN, L. ERIC PATTERSON, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. MARSHALS SERVICE, DONALD W. WASHINGTON, CHAD F. WOLF (Gardner, Joshua) (Entered: 10/09/2020)
MINUTE ORDER granting 23 Motion for Extension of Time to Answer. Defendants shall answer or otherwise respond to the Complaint on or before October 15, 2020. Signed by Judge Christopher R. Cooper on 10/13/2020. (lccrc3) (Entered: 10/13/2020)
MOTION to Dismiss 1 Complaint by MATTHEW T. ALBENCE, WILLIAM BARR, KENNETH T. CUCCINELLI, II, FEDERAL PROTECTIVE SERVICE, MARK A. MORGAN, L. ERIC PATTERSON, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. MARSHALS SERVICE, DONALD W. WASHINGTON, CHAD F. WOLF (Attachments: # 1 Declaration by Juliana Blackwell, # 2 Declaration by Neal Swartz)(Lynch, Jason) (Entered: 10/15/2020)
MOTION for Leave to File by CHIRAAG BAINS, PAUL BARDACKE, DIANA BECTON, WESLEY BELL, BUTA BIBERAJ, SHERRY BOSTON, CHESA BOUDIN, JOSEPH BRANN, AISHA BRAVEBOY, KENYEN BROWN, JIM BUEERMANN, JOHN CHOI, JERRY L. CLAYTON, DAVE CLEGG, SHAMECA COLLINS, SCOTT COLOM, BRENDAN

COX, JOHN CREUZOT, RONALD L. DAVIS, SATANA DEBERRY, PARISA DEHGHANI-TAFTI, BRANDON DEL POZO, DRES DIAMOND, THOMAS J. DONOVAN, JR, MICHAEL DOUGHERTY, MARK DUPREE, KEITH ELLISON, ROBERT W. FERGUSON, KIMBERLY M. FOXX, BRIAN E. FROSH, DOUGLAS GANSLER, GIL GARCETTI, KIMBERLY GARDNER, SARAH F. GEORGE, JOE GONZALES, ERIC GONZALEZ, MARK GONZALEZ, ANDREA HARRINGTON, SCOTT HARSHBARGER, JIM HINGELEY, JOHN HUMMEL, SUSAN HUTSON, NATASHA IRVING, MICHAEL JACKSON, KATHLEEN JENNINGS, JUSTIN F. KOLLAR, LAURENCE S. KRASNER, MIRIAM ARONI KRINSKY, WILLIAM LANSDOWNE, PATRICIA MADRID, GARRY MCFADDEN, BRIAN MIDDLETON, STEPHANIE MORALES, MARILYN J. MOSBY, JEROME O'NEIL, JODY OWENS, JIM PETRO, CHANNING PHILLIPS, BRYAN PORTER, ABDUL PRIDGEN, KARL A. RACINE, KWAME RAOUL, IRA REINER, RACHAEL ROLLINS, ELLEN ROSEMBLUM, STEPHEN ROSENTHAL, MARIAN T. RYAN, DAN SATTERBERG, MIKE SCHMIDT, RONAL SERPAS, DANIELLA SHORTER, CAROL A. SIEMON, NORM STAMPER, DAVID E. SULLIVAN, SHANNON TAYLOR, RAUL TORREZ, GREGORY UNDERWOOD, MATTHEW VAN HOUTEN, ANDREW WARREN, LYNNEICE

WASHINGTON (Attachments: # 1 Text of Proposed Order,

# 2 Exhibit)(ztd) (Entered: 10/29/2020)

10/29/2020 26

Memorandum in opposition to re 24 MOTION to Dismiss 1

Complaint / Plaintiffs' Brief in Opposition to Defendants' Motion to Dismiss filed by BEVERLEY BARNUM, SABRINA CERQUERA, DON'T SHOOT PORTLAND, DEMETRIA HESTER, DANIALLE JAMES, LISA KIPERSZTOK, WALL OF MOMS. (O'Neil, David) (Entered: 10/29/2020)

10/30/2020

MINUTE ORDER granting 25 Motion for Leave to File Amicus Brief. Signed by Judge Christopher R. Cooper on 10/30/2020. (lccrc3) (Entered: 10/30/2020)

10/30/2020

27 AMICUS BRIEF by CHIRAAG BAINS, PAUL BARDACKE, DIANA BECTON, WESLEY BELL, BUTA BIBERAJ, SHERRY BOSTON, CHESA BOUDIN, JOSEPH BRANN, AISHA BRAVEBOY, KENYEN BROWN, JIM BUEERMANN, JOHN

11/04/2020 11/05/2020

CHOI, JERRY L. CLAYTON, SCOTT COLOM, BRENDAN COX, JOHN CREUZOT, RONALD L. DAVIS, SATANA DEBERRY, PARISA DEHGHANI-TAFTI, BRANDON DEL POZO, DRES DIAMOND, THOMAS J. DONOVAN, JR, MICHAEL DOUGHERTY, MARK DUPREE, KEITH ELLISON, ROBERT W. FERGUSON, BRIAN E. FROSH, DOUGLAS GANSLER, GIL GARCETTI, KIMBERLY GARDNER, SARAH F. GEORGE, JOE GONZALES, ERIC GONZALEZ, MARK GONZALEZ, ANDREA HARRINGTON, SCOTT HARSHBARGER, JIM HINGELEY, MATTHEW VAN HOUTEN, JOHN HUMMEL, SUSAN HUTSON, NATASHA IRVING, MICHAEL JACKSON, KATHLEEN JENNINGS, JUSTIN F. KOLLAR, LAURENCE S. KRASNER, MIRIAM ARONI KRINSKY, WILLIAM LANSDOWNE, PATRICIA MADRID, GARRY MCFADDEN, BRIAN MIDDLETON, STEPHANIE MORALES, MARILYN J. MOSBY, JEROME O'NEIL, JODY OWENS, JIM PETRO, CHANNING PHILLIPS, BRYAN PORTER, ABDUL PRIDGEN, KARL A. RACINE, KWAME RAOUL, IRA REINER, RACHAEL ROLLINS, ELLEN ROSEMBLUM, STEPHEN ROSENTHAL, MARIAN T. RYAN, DAN SATTERBERG, MIKE SCHMIDT, RONAL SERPAS, DANIELLA SHORTER, CAROL A. SIEMON, NORM STAMPER, DAVID E. SULLIVAN, SHANNON TAYLOR, RAUL TORREZ, GREGORY UNDERWOOD, ANDREW WARREN, LYNNEICE WASHINGTON. (ztd) (Entered: 10/30/2020)
28 Consent MOTION for Extension of Time to file Reply and either Sur-reply or Motion for Leave to Amend by MATTHEW T. ALBENCE, WILLIAM BARR, KENNETH T. CUCCINELLI, II, FEDERAL PROTECTIVE SERVICE, L. ERIC PATTERSON, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. MARSHALS SERVICE, DONALD W. WASHINGTON, CHAD F. WOLF (Attachments: # 1 Text of Proposed Order)(Lynch, Jason) (Entered: 11/04/2020)
MINUTE ORDER granting 28 Motion for Extension of Time to File Reply and Sur-reply or Motion for Leave to Amend. The Government shall file its reply in support of its Motion to Dismiss on or before November 19, 2020. Plaintiffs shall file any sur-reply or motion for leave to amend the Complaint on or before December 17, 2020. Signed by Judge Christopher R. Cooper on 11/05/2020. (lccrc3) (Entered: 11/05/2020)

11/05/2020

Set/Reset Deadlines: Response to Dispositive Motions due by 11/19/2020. Reply to Dispositive Motions due by 12/17/2020. (lsj) (Entered: 11/05/2020)

11/05/2020 29

Consent MOTION for Leave to File Amicus Brief by CONSTITUTIONAL ACCOUNTABILITY CENTER (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Gorod, Brianne) (Entered: 11/05/2020)

11/09/2020

MINUTE ORDER granting 29 Motion for Leave to File Amicus Brief. Signed by Judge Christopher R. Cooper on 11/09/2020. (lccrc3) (Entered: 11/09/2020)

11/09/2020

30 AMICUS BRIEF by CONSTITUTIONAL ACCOUNTABILITY CENTER. (zrdj) (Entered: 11/10/2020)

11/13/2020 31

NOTICE by WILLIAM BARR, KENNETH T. CUCCINELLI, II, FEDERAL PROTECTIVE SERVICE, MARK A. MORGAN, L. ERIC PATTERSON, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. MARSHALS SERVICE, DONALD W. WASHINGTON, CHAD F. WOLF (Lynch, Jason) (Entered: 11/13/2020)

11/18/2020

32 Consent MOTION for Leave to File Excess Pages (30) in Reply Memorandum by MATTHEW T. ALBENCE, WILLIAM BARR, KENNETH T. CUCCINELLI, II, FEDERAL PROTECTIVE SERVICE, L. ERIC PATTERSON, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. MARSHALS SERVICE, DONALD W. WASHINGTON, CHAD F. WOLF (Lynch, Jason) (Entered: 11/18/2020)

11/18/2020

MINUTE ORDER granting 32 Motion for Leave to File Excess Pages. Defendants may file a reply of up to 30 pages in support of

their 24 Motion to Dismiss. Signed by Judge Christopher R. Cooper on 11/18/2020. (lccrc3) (Entered: 11/18/2020)

11/19/2020 33

REPLY to opposition to motion re 24 MOTION to Dismiss 1

Complaint filed by MATTHEW T. ALBENCE, WILLIAM BARR, KENNETH T. CUCCINELLI, II, FEDERAL

12/16/2020 12/17/2020 12/18/2020 12/22/2020

PROTECTIVE SERVICE, MARK A. MORGAN, L. ERIC PATTERSON, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. MARSHALS SERVICE, DONALD W. WASHINGTON, CHAD F. WOLF. (Attachments: # 1 Declaration (2d) Juliana Blackwell, # 2 Declaration Eric Patterson)(Lynch, Jason) (Entered: 11/19/2020)
34 MOTION for Leave to Appear Pro Hac Vice :Attorney NameAshley V. Hahn, Filing fee $ 100, receipt number ADCDC7967985. Fee Status: Fee Paid. by BEVERLEY BARNUM, SABRINA CERQUERA, DON'T SHOOT PORTLAND, DEMETRIA HESTER, DANIALLE JAMES, LISA KIPERSZTOK, WALL OF MOMS (Attachments: # 1 Declaration of Ashley V. Hahn)(O'Neil, David) (Entered: 12/16/2020)
35 Consent MOTION for Leave to File Amended Complaint by BEVERLEY BARNUM, SABRINA CERQUERA, DON'T SHOOT PORTLAND, DEMETRIA HESTER, DANIALLE JAMES, LISA KIPERSZTOK, WALL OF MOMS (Attachments:
# 1 Amended Complaint, # 2 Text of Proposed Order, # 3 Certificate of Service)(O'Neil, David) (Entered: 12/17/2020)
MINUTE ORDER granting 34 Motion for Leave to Appear Pro Hac Vice as to attorney Ashley V. Hahn. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Christopher R. Cooper on 12/18/2020. (lccrc3) (Entered: 12/18/2020)
MINUTE ORDER: It is hereby ordered that the 35 Consent Motion for Leave to File Amended Complaint is granted. It is further
ordered that the 24 Motion to Dismiss is denied as moot. See Easter v. District of Columbia, 128 F. Supp. 3d 173, 177 (D.D.C. 2015); Nat'l City Mortg. Co. v. Navarro, 220 F.R.D. 102, 106 (D.D.C. 2004). The Court notes that because many of the issues in this case have already been briefed, it may be appropriate to set an expedited briefing schedule on any motion to dismiss the Amended Complaint. The parties are therefore directed to promptly meet and confer and, if a motion to dismiss is anticipated, file a joint proposed schedule for briefing on such motion on or before January 4, 2021. SO ORDERED. Signed by Judge Christopher R. Cooper on 12/22/2020. (lccrc3) (Entered: 12/22/2020)

01/04/2021 01/04/2021

36 NOTICE of Appearance by Ashley V. Hahn on behalf of BEVERLEY BARNUM, SABRINA CERQUERA, DON'T SHOOT PORTLAND, DEMETRIA HESTER, DANIALLE JAMES, LISA KIPERSZTOK (Hahn, Ashley) (Entered: 01/04/2021)
37 RESPONSE TO ORDER OF THE COURT re Order on Motion to Dismiss,,,, Order on Motion for Leave to File,,, and Joint Proposed Briefing Schedule filed by MATTHEW T. ALBENCE, WILLIAM BARR, KENNETH T. CUCCINELLI, II, FEDERAL PROTECTIVE SERVICE, MARK A. MORGAN, L. ERIC PATTERSON, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. MARSHALS SERVICE, DONALD W. WASHINGTON, CHAD F. WOLF. (Lynch, Jason) (Entered: 01/04/2021)

PACER Service Center Transaction Receipt

01/05/2021 16:26:02

PACER Login:

CRClearinghouse Client Code:

Description:

Docket Report

Search Criteria:

Billable Pages: 29

Cost:

Exempt flag: Not Exempt

Exempt reason:

1:20-cv-02040CRC 2.90
Not Exempt

 
 Case 1:20-cv-02040 Document 1 Filed 07/27/20 Page 1 of 48

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DON’T SHOOT PORTLAND, c/o Perkins Coie LLP, 1120 N.W. Couch Street, Tenth Floor, Portland, OR 97209,
WALL OF MOMS, c/o Perkins Coie LLP, 1120 N.W. Couch Street, Tenth Floor, Portland, OR 97209,
BEVERLEY BARNUM, c/o Perkins Coie LLP, 1120 N.W. Couch Street, Tenth Floor, Portland, OR 97209,
SABRINA CERQUERA, c/o Perkins Coie LLP, 1120 N.W. Couch Street, Tenth Floor, Portland, OR 97209,
DEMETRIA HESTER, c/o Perkins Coie LLP, 1120 N.W. Couch Street, Tenth Floor, Portland, OR 97209,
DANIALLE JAMES, c/o Perkins Coie LLP, 1120 N.W. Couch Street, Tenth Floor, Portland, OR 97209,
LISA KIPERSZTOK, c/o Perkins Coie LLP, 1120 N.W. Couch Street, Tenth Floor, Portland, OR 97209,
Plaintiffs,

Civil Action No.

1

Case 1:20-cv-02040 Document 1 Filed 07/27/20 Page 2 of 48
v.
CHAD F. WOLF, in his official capacity as the purported Acting Secretary of Homeland Security, 2707 Martin Luther King Jr. Ave., SE, Washington, DC 20528,
KEN CUCCINELLI, in his official capacity as the purported Senior Official Performing the Duties of the Deputy Secretary of Homeland Security and the purported Senior Official Performing the Duties of the Director of U.S. Citizenship and Immigration Services, 2707 Martin Luther King Jr. Ave., SE, Washington, DC 20528,
MARK A. MORGAN, in his official capacity as the purported Acting Commissioner for U.S. Customs and Border Protection, 1300 Pennsylvania Ave., NW, Washington, DC 20229,
MATTHEW T. ALBENCE, in his official capacity as the purported Deputy Director and Senior Official Performing the Duties of the Director of U.S. Immigration and Customs Enforcement, 500 12th St., SW, Washington, DC 20536,
L. ERIC PATTERSON, in his official capacity as the Director of the Federal Protective Service, 2707 Martin Luther King Jr. Ave., SE, Washington, DC 20528,
U.S. DEPARTMENT OF HOMELAND SECURITY,
2

Case 1:20-cv-02040 Document 1 Filed 07/27/20 Page 3 of 48
2707 Martin Luther King Jr. Ave., SE, Washington, DC 20528,
U.S. CUSTOMS AND BORDER PROTECTION, 1300 Pennsylvania Ave., NW, Washington, DC 20229,
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, 500 12th St., SW, Washington, DC 20536,
FEDERAL PROTECTIVE SERVICE, 2707 Martin Luther King Jr. Ave., SE, Washington, DC 20528,
WILLIAM BARR, in his official capacity as the Attorney General of the United States, 950 Pennsylvania Avenue, NW, Washington, DC 20530,
DONALD W. WASHINGTON, in his official capacity as the Director of the U.S. Marshals Service, 950 Pennsylvania Avenue, NW, Washington, DC 20530,
U.S. DEPARTMENT OF JUSTICE, 950 Pennsylvania Avenue, NW, Washington, DC 20530,
U.S. MARSHALS SERVICE, 950 Pennsylvania Avenue, NW, Washington, DC 20530,
Defendants.
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COMPLAINT 1. Plaintiffs are a diverse group of women-founded organizations and individual women in Portland, Oregon, who are leading, participating, and standing in solidarity with historic lawful protests against police brutality and in support of Black Lives Matter. Since the police killing of George Floyd on May 25, 2020, Plaintiffs have joined together to exercise their First Amendment rights to call for social change and an end to systemic racism. Plaintiff Don’t Shoot Portland, a Black-led community-driven organization, has coordinated mutual aid to support peaceful protesters in the city. Plaintiff Wall of Moms sprang to life to participate in lawful protests and protect others from being injured by federal law enforcement. Individual Plaintiffs Bev Barnum (organizer of Wall of Moms), Sabrina Cerquera, Demetria Hester, Danialle James, and Dr. Lisa Kipersztok have all participated in peaceful protests. 2. The movement for Black lives of which Plaintiffs are part has gained broad support across the United States, due to the power of the protesters’ message and the courage of their actions. Plaintiffs’ exercise of their First Amendment rights to speak and assemble to advocate for a more just and equal country epitomizes the highest values of our constitutional democracy. 3. Defendants are the Department of Homeland Security, its purported leaders, its components, and other agencies of the federal government. Rather than protect and defend Plaintiffs’ constitutional rights, as they are bound to do by law and their Oaths of Office, Defendants have implemented an unlawful policy to quash Plaintiffs’ speech and end their protests. 4. Beginning on or around July 4, 2020, Defendants launched “Operation Diligent Valor”: an unprecedented deployment of federal agents to (in Defendants’ words) “quell”
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protests against police brutality by “tak[ing] over” Portland. At Defendants’ direction, federal agents—dressed in military fatigues and toting military gear—have tear-gassed peaceful protesters, including Plaintiffs; made unlawful arrests without probable cause; and otherwise used violence in an effort to stamp out peaceful and constitutionally protected protests.
5. Plaintiffs who have been exercising their lawful rights have been repeatedly injured by U.S. Department of Homeland Security (“DHS”) agents on the streets of their city. They have been tear-gassed night after night, left vomiting and unable to eat or sleep because of the toxic poison blasted at them. They have been shot at over and over—with rubber bullets, bean bags, pepper spray, and a range of other projectiles fired at close range and with brutal effect. They have had flash-bang explosive devices detonated right in front of them. They have been forced to speak and assemble in fear of not just bodily harm, but the possibility of sudden arrest without probable cause.
6. In addition to violating Plaintiffs’ well-established constitutional rights to freedom of speech and assembly, freedom from unreasonable seizures, and due process, Defendants’ actions betray a foundational principle of American democracy: that the federal government exercises only the powers the Constitution authorizes. Other powers, including the general police power, are reserved to the states and their subdivisions. The U.S. Constitution does not permit a federal domestic security or police force. Consistent with those limits, Congress has authorized federal law enforcement officials to fulfill only limited functions, where there is a tight nexus to a specific federal interest.
7. As set forth below, Operation Diligent Valor exceeds the bounds of what the law authorizes. According to the White House press secretary and other sources, the asserted authority for the DHS agents’ presence and actions in Portland is 40 U.S.C. § 1315, which allows
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federal officials to protect federal property. But Defendants’ statements, a recently revealed internal DHS memorandum, and the conduct of DHS officers on the ground far from the federal courthouse make clear that Operation Diligent Valor actually furthers a separate DHS policy: to intimidate and silence protesters because of their message. Because Defendants’ policy is not in furtherance of protecting federal property, their invocation of § 1315 is purely pretextual.
8. Defendants’ unlawful policy has been directed by Defendant Wolf, who purports to be Acting Secretary of Homeland Security but is not legally serving in this role. He has not received Senate confirmation, and, indeed, President Trump has not even nominated him— reflecting his preference for “acting” officials and avoiding the oversight and accountability that the confirmation process ensures.
9. Plaintiffs ask this Court to protect them and vindicate their constitutional rights by declaring unlawful and enjoining Defendants’ unlawful policy.
PARTIES 10. Plaintiff Don’t Shoot Portland is a nonprofit nonpartisan organization with a mission of providing community support for activists and organizers working to eradicate gross inequalities in our society. It was founded in 2014. In furtherance of its mission, it provides “mutual aid” to activists and organizers through education and facilitating the collection and distribution of community resources. It has 501(c)(3) status under the Internal Revenue Code. 11. Plaintiff Wall of Moms is an unincorporated association with a mission to end racism, heal historic and ongoing wrongs, and do the hard work of healing society from the legacies of colonialism, racism, and white supremacy. It was founded in July 2020.
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12. Plaintiff Bev Barnum is a resident of Portland, Oregon. She organized Wall of Moms in July 2020 and has regularly attended Black Lives Matter demonstrations in Portland since July 18, 2020.
13. Plaintiff Sabrina Cerquera is a resident of Portland, Oregon. She has joined many demonstrations throughout Portland in May, June, and July 2020.
14. Plaintiff Demetria Hester is a resident of Gresham, Oregon. She has been attending protests almost every night since late May 2020.
15. Plaintiff Danialle James is a resident of Portland, Oregon. She has been attending protests almost every night since May 27, 2020.
16. Plaintiff Lisa Kipersztok is a resident of Portland, Oregon, who demonstrated peaceably before federal law enforcement agents were deployed to Portland.
17. Defendant Chad F. Wolf is the purported Acting Secretary of DHS and is sued in his official capacity. Defendant Wolf is responsible for “protect[ing] the buildings, grounds, and property that are owned, occupied, or secured by the Federal Government . . . and the persons on the property” under 40 U.S.C. § 1315.
18. Defendant Kenneth T. Cuccinelli is the purported Acting Deputy Secretary of the DHS and Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Services (“USCIS”), and is sued in his official capacity.
19. Defendant Mark A. Morgan is the purported Senior Official Performing the Duties of Commissioner for U.S. Customs and Border Protection (“CBP”), and is sued in his official capacity.
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20. Defendant Matthew T. Albence is the purported Deputy Director and Senior Official Performing the Duties of the Director, U.S. Immigration and Customs Enforcement (“ICE”), and is sued in his official capacity.
21. Defendant L. Eric Patterson is the Director of the Federal Protective Service (“FPS”), and is sued in his official capacity.
22. Defendant the Department of Homeland Security is the executive branch agency of which FPS, CBP, and ICE are part. DHS is an “agency” within the meaning of the Administrative Procedure Act (“APA”), see 5 U.S.C. § 551(1), and its headquarters are in Washington, D.C.
23. Defendant U.S. Customs and Border Protection is an operational component of DHS, and is responsible for enforcing laws concerning the flow of goods and persons entering or exiting the United States. See 6 U.S.C. § 211. CBP is an “agency” within the meaning of the APA, see 5 U.S.C § 551(1), and its headquarters are in Washington, D.C.
24. Defendant U.S. Immigration and Customs Enforcement is an operational component of DHS, and is responsible for preventing cross-border crime and illegal immigration. See 8 U.S.C § 1357. ICE is an “agency” within the meaning of the APA, see 5 U.S.C § 551(1), and its headquarters are in Washington, D.C.
25. Defendant the Federal Protective Service is an operational component of DHS, and is responsible for protecting federal property. See 40 U.S.C. § 1315. FPS is an “agency” within the meaning of the APA, see 5 U.S.C § 551(1), and its headquarters are in Washington, D.C.
26. Defendant William Barr is the Attorney General of the United States. He is sued in his official capacity.
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27. Defendant Donald W. Washington is the Director of the U.S. Marshals Service (“USMS”), and is sued in his official capacity.
28. Defendant the Department of Justice (“DOJ”) is the executive branch agency of which the U.S. Marshals Service is a part. The Department of Justice is an “agency” within the meaning of the APA, see 5 U.S.C. § 551(1), and its headquarters are in Washington, D.C.
29. Defendant the U.S. Marshals Service is a federal agency within the Department of Justice that provides security for the federal courts, see 28 U.S.C. §§ 561, 566(a). Defendant USMS is an “agency” within the meaning of the APA, see 5 U.S.C. § 551(1), and its headquarters are in Arlington, Virginia.
30. For clarity, we refer to defendants Wolf, Cuccinelli, Morgan, Albence, Patterson, Barr, and Washington as “individual Defendants,” and defendants DHS, CBP, ICE, FPS, DOJ, and USMS as “agency Defendants.”
JURISDICTION AND VENUE 31. This Court has federal question jurisdiction under 28 U.S.C. § 1331 because this action arises under the U.S. Constitution, the Administrative Procedure Act (“APA”), and other federal statutes. 32. The Court is authorized to award the requested declaratory and injunctive relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, the APA, 5 U.S.C. § 706, and its equitable powers. 33. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(1) and (e)(1). Defendants DHS, CBP, ICE, FPS, and DOJ reside in the District of Columbia. 28 U.S.C. § 1391(c)(2).
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FACTUAL ALLEGATIONS A. Led by Plaintiff Don’t Shoot Portland, Plaintiffs and the Portland Community
Lawfully Engage in Black Lives Matter Protests 34. After the police killing of George Floyd on May 25, Portland organizers began to mobilize to protest in support of Black Lives Matter. Portland protesters have shown up, night after night amid the staggering COVID-19 pandemic, to exercise their First Amendment rights to call for social change that ends systemic racism. Since July 4, they have been repeatedly attacked by an army of over 100 camouflage-clad federal agents. 35. Don’t Shoot Portland, a Black-led and community-driven organization that is the lead Plaintiff in this lawsuit, has a crucial role in sustaining the movement for Black lives in Portland. Don’t Shoot Portland was founded in 2014 by Teressa Raiford, building upon years of work organizing to facilitate care and support for families who had lost loved ones and to help people become civically engaged to further the Black Lives Matter movement with inclusivity. 36. Don’t Shoot Portland’s mission is to support the Black Lives Matter movement by providing “mutual aid” to activists, organizers, and other individuals wishing to exercise their First Amendment rights to organize, protest, and create art for social change. “Mutual aid” is the voluntary reciprocal exchange of resources for the benefit of all involved. It is how Don’t Shoot Portland expresses its support for Black Lives Matter; it is the organization’s free speech. 37. Since George Floyd’s murder, Don’t Shoot Portland has organized mutual aid to support the Black Lives Matter protests in Portland and the Black community enduring trauma from the event. Public health and safety have been the focus of its mutual aid. Don’t Shoot Portland distributes protective equipment like face masks and hand sanitizer, first aid kits, baking soda, and other resources that provide relief from tear gas, along with water, food, and assistance with hotel and temporary housing costs and transportation.
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38. Don’t Shoot Portland understands, based on scientific research that it facilitated, that tear gas is extraordinarily dangerous to deploy during a pandemic outbreak of a respiratory virus like COVID-19. Because of racism and its impact on economic and health disparities, Black people, Indigenous people, and people of color are more likely to develop, suffer, and face complications from COVID-19 than their white counterparts.
39. Since Operation Diligent Valor started, federal officers have harmed Don’t Shoot Portland’s mission by destroying its mutual aid supplies with tear gas and through other means.
40. Plaintiff “Wall of Moms” was organized by Bev Barnum. 41. On July 17, 2020, Ms. Barnum watched from her home, in horror, a video on social media showing unidentified and armed federal officers in military uniforms grabbing a protester and putting them in an unmarked van. She saw news coverage of the federal officers beating, gassing, and shooting protesters with “less-lethal” weapons. She never thought something like that could happen in the United States of America. She felt compelled to do something as a mother, as a Portlander, and as an American who believes in the right to protest. 42. Ms. Barnum wrote a post in a working moms Facebook group, calling for moms to join the protests the next day and to form a “Wall of Moms” to protect protesters, especially the youth, from the federal officers’ assaults. Within an hour, seventy moms had responded and were eager to stand up for those protesting police violence against Black Americans. The number kept growing. 43. Ms. Barnum reached out to Don’t Shoot Portland for guidance on organizing the beginning of a movement of moms standing for racial justice.
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44. The first night that Wall of Moms formed, July 18, the Moms attended a vigil organized by Don’t Shoot Portland for Shai’India Harris, a young Black woman whose murder was never investigated because Portland police claimed they were too busy policing the protests.
45. Wall of Moms then went to the street outside the Mark O. Hatfield U.S. Courthouse to form a human barrier for the young protesters who were giving speeches. The Moms did not throw anything or threaten officers in any way; they just shouted, “Leave the kids alone!” They hoped that the presence of mothers in regular clothing would remind the federal officers that these protesters were young people calling for social change. That hope met a brutal reality when federal officers, dressed for war, blasted everyone, including Ms. Barnum and Wall of Moms linked arm-in-arm, with tear gas, flash-bang grenades, and other munitions.
46. No matter how much harm her body suffers each night, Ms. Barnum goes back to the protests to exercise her First Amendment rights and protect others doing the same to further the movement for Black lives. Wall of Moms attends the protests in solidarity with Portlanders calling for racial justice, withstanding violence from federal law enforcement every night.
47. Among the protesters peacefully exercising, or wishing to exercise, their free speech rights in Portland are Plaintiffs Sabrina Cerquera, Demetria Hester, Danialle James, and Lisa Kipersztok.
48. Ms. Cerquera is a 22-year-old Brown woman who has witnessed and experienced systemic racism. She feels strongly compelled to stand up for her Black and Brown peers to end police brutality and white supremacy. After police officers killed George Floyd on May 25, she joined demonstrations in Portland to protest the violence and death Black Americans disproportionately suffer. Between May 29 and June 23, Ms. Cerquera protested eight times. She was tear-gassed by Portland police for the first time on May 31, and was traumatized by the
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experience. Having seen the assault of federal officers on protesters, Ms. Cerquera’s fear for her safety restrained her from participating in protests for a full month, but the killings of Black Portlanders Dominque Dunn and Shai’India Harris inspired her to rejoin the protests. Over multiple nights, she has been hit with pepper spray that federal agents deploy to violently disperse gathered demonstrators.
49. Ms. Hester is a Black mother and grandmother who has been joining protests to fight against the legacy of white supremacy. George Floyd’s killing came almost three years exactly after Ms. Hester was assaulted in Portland by Jeremy Christian, who made racist statements during the assault. The day after that assault, Christian stabbed and killed two men who were protecting two young Black women from Christian’s attacks on a Portland light rail train. Ms. Hester has suffered injury from the federal officers’ teargassing.
50. Ms. James is a Black mother who has been peacefully demanding justice and accountability not only for the death of George Floyd, but the innumerable other victims of police brutality in Portland, since late May. Ms. James has suffered injury from the federal officers’ use of tear gas and projectile munitions such as paint balls, pepper-spray balls, and rubber bullets.
51. Dr. Kipersztok is a Portland family physician who cares for underserved community members facing personal discrimination. She is motivated to join the Black Lives Matter protests out of a desire to dismantle the structural racism against Black Americans in healthcare and throughout our society. Dr. Kipersztok participated in peaceful demonstrations for racial justice in June. In mid-July, Dr. Kipersztok learned that the federal government had dispatched federal law enforcement agents in Portland, and that the federal agents were deploying tear gas to disperse crowds—mere weeks after protesters had won a court victory
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restricting local police officers’ ability to use the chemical weapon. Dr. Kipersztok initially intended to exercise her right of protest against this show of federal force against fellow Portlanders. After watching live feeds of the downtown protests and reading reports, however, she feared that she could only attend these demonstrations at serious risk of debilitating injury at the federal agents’ hands.
B. President Trump Seeks to Create a Federal Police Force 52. The brutality that Plaintiffs have faced at the hands of federal agents is the result
of an unlawful policy that Defendants have established to quell lawful protest and intimidate protesters.
53. This reflects President Trump’s desire, dating back to the earliest days of his administration, to “take over” America’s cities. Five days after his inauguration, he threatened on Twitter to “send in the feds” to Chicago to deal with rising homicide rates there. This year, President Trump, in consultation with Defendant Barr, Defendant Wolf, and others, has seized on nationwide civil rights protests against police brutality as an opportunity to use federal forces—not to defend civil rights, but to quell the protests.
54. On May 29, three days after protests began in Minneapolis, the president Tweeted: “Either the very weak Radical Left Mayor, Jacob Frey, get his act together and bring the City under control, or I will send in the National Guard & get the job done right.”1 He continued, “These THUGS are dishonoring the memory of George Floyd, and I won’t let that happen. . . . Any difficulty and we will assume control but, when the looting starts, the shooting starts.”2
1 Donald J. Trump (@realDonaldTrump), Twitter (May 29, 2020, 12:53 a.m.), https://twitter.com/realDonaldTrump/status/1266231100172615680. 2 Donald J. Trump (@realDonaldTrump), Twitter (May 29, 2020, 12:53 a.m.), https://twitter.com/realDonaldTrump/status/1266231100780744704 (“This Tweet violated the
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55. President Trump’s response to the civil rights protests, and specifically his insistence that they be shut down, stands in sharp contrast to his response to anti-quarantine protesters earlier this year. When armed protesters objecting to COVID-19 quarantine measures rallied in the Michigan state house, President Trump called them “very good people” and urged Michigan Governor Gretchen Whitmer to “give a little” in response to the protesters’ objections.
56. Throughout the next month, President Trump, with backing by Attorney General Barr and others, continued to reinforce his willingness to override local law enforcement, notably during his address to the nation on June 1: “I am your President of law and order . . . . If a city or a state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.”
57. Minutes later, the president previewed his strategy at Lafayette Square, near the White House. Just after the speech, federal law enforcement and the D.C. National Guard forcibly removed thousands of peaceful protesters from Lafayette Square with pepper-spray balls, smoke canisters, flash-bang grenades, shields, and horses. After the protesters were cleared, President Trump, Attorney General William Barr, Secretary of Defense Mark Esper, and others walked from the White House through Lafayette Park for a photo opportunity at St. John’s Episcopal Church.
58. It is not coincidental that the president’s threats to deploy the military and armed federal officers have been aimed at liberal and progressive cities that he views as home to his political opponents.
Twitter Rules about glorifying violence. However, Twitter has determined that it may be in the public’s interest for the Tweet to remain accessible.”).
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59. On June 3, he claimed that “super-liberal mayors” in cities like Minneapolis were undermining local law enforcement, requiring his administration to bring in the National Guard to “[take] care of it.”
60. And on July 20, President Trump told reporters his administration was taking action “[b]ecause we’re not going to let New York and Chicago and Philadelphia and Detroit and Baltimore and all of these—Oakland is a mess. We’re not going to let this happen in our country. All run by liberal Democrats. All run, really, by the radical left.”
C. President Trump Unlawfully Places Allies in Leadership Roles at the Department of Homeland Security Without Senate Confirmation 61. The Department of Homeland Security is the nation’s largest law enforcement
agency, with more than 60,000 law enforcement agents working under its auspices. 62. But President Trump has installed an unprecedented number of top officials at
DHS without seeking the advice and consent of the Senate, as the Constitution and federal law require. Instead, his hand-picked individuals lead this crucial agency without any opportunity for Congress to vet or approve their selection.
63. The last Senate-confirmed DHS Secretary, Kirstjen Nielsen, resigned in April 2019. The current purported Acting Secretary of the Department of Homeland Security, Defendant Wolf, is the second consecutive person to serve in that role in an acting capacity, without going through Senate confirmation for the post. There has been no Senate-confirmed Secretary of Homeland Security for nearly 500 days. During that time, President Trump has not nominated a candidate to serve as the Secretary.
64. As detailed in paragraphs 125-151 below, Defendant Wolf’s appointment as Acting Secretary violates federal law.
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65. Defendant Cuccinelli is the Senior Official Performing the Duties of the Deputy Secretary of Homeland Security and the Senior Official Performing the Duties of the Director of U.S. Citizenship and Immigration Services. Cuccinelli has never been confirmed by the Senate to any senior position within DHS.
66. A judge in the U.S. District Court for the District of Columbia recently held that Cuccinelli’s appointment at USCIS violates the Federal Vacancies Reform Act (“FVRA”), one of the federal laws governing the use of acting officials. See L.M.-M. v. Cuccinelli, __ F. Supp. 3d __, No. 1:19-cv-02676(RDM), 2020 WL 985376 (D.D.C. Mar. 1, 2020).
67. Defendant Morgan is the Senior Official Performing the Duties of the Commissioner of U.S. Customs and Border Protection. Morgan has never been confirmed by the Senate to any senior position within DHS.
68. Defendant Albence is the Senior Official Performing the Duties of the Director of Immigration and Customs Enforcement. Albence has never been confirmed by the Senate to any position within DHS. ICE has not had a Senate-confirmed director during the entirety of President Trump’s time in office.
69. The large number of acting officials at DHS, and throughout the Trump administration, is part of a deliberate strategy, as the president explained in 2019: “I like ‘acting’ because I can move so quickly. It gives me more flexibility.”
70. But the president’s reliance on acting officials deprives Congress of its constitutional role to oversee appointments to key positions within the government, and removes a crucial check on the president’s exercise of power. The consequences are now playing out on the streets of Portland.
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D. Defendants Develop a Pretextual Scheme to Deploy Federal Agents as a National Police Force in Portland and Other Cities to Quash Protests for Black Lives 71. As President Trump made repeated threats to send federal law enforcement to
“take over” American cities in June and July, Defendants sprang into action to carry them out. 72. On June 26, President Trump issued an executive order on “Protecting American
Monuments, Memorials, and Statutes and Combating Recent Criminal Activity.” The executive order purports to respond to “[s]tate and local public officials’ abdication of their law enforcement responsibilities” with respect to the nationwide protests against police brutality. The order directs the Secretary of Homeland Security to provide “personnel to assist with the protection of Federal monuments, memorials, statues, or property.”
73. Pursuant to President Trump’s executive order, Defendant Wolf announced on July 1 the formation of the Protecting American Communities Task Force (PACT) within DHS. PACT was charged with “conduct[ing] ongoing assessments of potential civil unrest or destruction and allocat[ing] resources to protect people and property,” including “potential surge activity to ensure the continuing protection of critical locations.”
74. Defendants selected Portland, Oregon, for the first deployment of PACT resources.
75. On or about July 4, Defendant Wolf ordered federal officers from FPS, ICE, and CBP—all components of the DHS—to Portland, in what Defendants have termed Operation Diligent Valor. Since the protests began in May, the Hatfield courthouse and other nearby buildings have had graffiti written on them and suffered property damage such as broken windows. This damage would become the purported justification for the deployment of more than one hundred federal agents to Portland—an unprecedented use of DHS agents to police an American city.
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76. Ordinarily, responsibility for protecting federal property lies with the FPS, which has over 1,000 law enforcement officers and investigators.
77. In addition, the Secretary of Homeland Security may transfer other DHS employees to the Federal Protective Service specifically “for duty in connection with the protection of” federal property. 40 U.S.C. § 1315(b)(1). DHS employees designated as FPS agents and officers are limited to actions only “to the extent necessary to protect the property and persons.” Id.
78. Defendant Wolf designated approximately 114 ICE and CBP agents as FPS agents for purposes of Operation Diligent Valor.
79. Those agents include members of the Border Patrol Tactical Unit (“BORTAC”), an elite unit that typically serves high-risk warrants and raids stash houses. BORTAC agents are trained to use weapons ranging from pistols to sniper rifles, but they are not trained to police mass protests protected by the First Amendment.
80. Upon information and belief, as part of Operation Diligent Valor, DHS established a policy bore little connection to the limited purpose of the protection of federal property. Specifically, DHS established a policy to intimidate and deter protesters because of their views and beliefs through a number of means: surveillance; the use of militarized and unidentified force; the excessive deployment of crowd-control measures such as tear gas, pepperspray balls, and less-lethal munitions; and warrantless arrests or custodial detentions without probable cause (“the Policy”).
81. U.S. Marshals Service officers were also present in Portland, operating side-byside with DHS agents. Upon information and belief, Defendants Barr and Washington directed USMS agents to follow the DHS Policy.
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82. Statements by White House and administration officials reveal that Operation Diligent Valor and the Policy are intended to quell lawful protests, not to protect federal property.
83. At a White House event on July 13, President Trump claimed that “[f]ar-left mayors are escalating the anti-cop crusade, and violent crime is spiraling in their cities.” He pledged to be “very strong on law enforcement” by sending federal officers to “liberally run” jurisdictions—“even if we have to go in and take over cities.”
84. President Trump admitted that federal agents were deployed to Portland specifically to quell protests: “We’ve done a great job in Portland. Portland was totally out of control, and they went in and, I guess, we have many people right now in jail. And we very much quelled it. And if it starts again, we’ll quell it again very easily.”
85. In a Fox News interview on July 17, Defendant Cuccinelli asserted that President Trump is determined “to help restore peace to these beleaguered cities,” including Portland.
86. On July 20, Defendant Cuccinelli told CNN, “We will maintain our presence,” and admitted, “When that violence recedes and those threats recede, that is when we would ratchet back down to what I would call normal presence defending and protecting federal facilities.”
87. At times, federal officials have suggested that they need permission from local and state governments to send agents to the cities. At his July 13 event, President Trump acknowledged that the federal government is “supposed to wait for [cities] to call, but they don’t call.”
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88. Similarly, in a Fox News interview on July 6, Defendant Wolf reiterated that DHS needed “to be invited and have those state and local authorities ask for the federal government’s help.”
89. But Portland officials did not request the deployment of federal law enforcement officers, and have demanded that they leave the cities.
90. On July 14, Oregon Governor Kate Brown asked Defendant Wolf to withdraw the federal officers from the city, saying that “it’s like adding gasoline to a fire.”
91. Five days later, Portland Mayor Ted Wheeler said that the federal presence in the city is exacerbating the situation. Federal officers “are not wanted here,” he said. “We haven’t asked them here. In fact, we want them to leave.”
92. Portland City Commissioner Jo Ann Hardesty also called on federal officers to leave, saying that they had “escalated tensions and put countless Portlanders exercising their First Amendment rights in greater danger.”
93. Not only have Defendants refused to end the deployment of federal agents to Portland, they have promised to send federal agents from DHS and DOJ to a number of other cities, including Seattle and Chicago. Senior administration officials reportedly told reporters that they expect to send federal agents anywhere there is unrest, and that they expect the unrest to last until the November 2020 presidential election.
E. Federal Agents Attempt to “Quell” Lawful Protests in Portland 94. Pursuant to the Policy, since on or around July 4, federal agents have engaged in
an all-out effort to “quell” the Portland protests in violation of the First, Fourth, and Fifth Amendments. This conduct demonstrates that their mission far exceeds the stated purpose of protecting federal property.
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95. In accordance with the Policy, DHS personnel have engaged in a program of surveillance, unlawful arrests, and excessive force designed to intimidate and deter protesters.
96. Federal agents have extended their operations far from the immediate vicinity of the courthouse. Plaintiff James has seen the federal agents drive the protesters as far as five blocks away from the courthouse, using clubs and batons to force them to move.
97. On July 24, federal agents assaulted protesters outside the federal courthouse with tear gas, flash grenades, and pepper-spray balls, and drove the crowd more than two blocks away from the courthouse, declaring, “This is an unlawful assembly.” When the agents’ advance stopped, the courthouse was out of view.
98. According to a Department of Homeland Security briefing memorandum prepared for Defendant Wolf, the DHS personnel assigned to Operation Diligent Valor “do not specifically have training in riot control or mass demonstrations. Moving forward, if this type of response is going to be the norm, specialized training and standardized equipment should be deployed to responding agencies” (emphasis added).
Widespread Surveillance of Protesters 99. As referenced above, in connection with President Trump’s June 26 executive order, DHS launched an expansive program of domestic surveillance that goes far beyond the limited need to protect federal property. Pursuant to an internal unclassified DHS policy document, the DHS Office of Intelligence & Analysis has authorized its intelligence officers to surveil protesters if the agency determines that they pose “[t]hreats to damage or destroy an
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public monument, memorial, or statue”—“regardless of whether such structures are situated on Federal property” (emphasis added).3
100. The DHS intelligence directive further indicates that DHS analysts can collect information about “individuals or groups” whom they “reasonabl[y] belie[ve]” threaten to damage or destroy any public monument, including “their tactics, techniques, or procedures,” and “information that otherwise informs an overall assessment that threats to [monuments] will materialize.”
101. In other words, Defendants are operating under a directive that minor property damage to a non-federal monument or statue—a “threat” the agency for the first time characterizes as a matter of homeland security—justifies a significant expansion of the sweep of the federal government’s authority to collect intelligence on its residents.
Unlawful Warrantless Arrests 102. Upon information and belief, the Policy authorizes agents to arrest or detain protesters without probable cause, in retaliation for their participation in protests against police brutality. Many of these arrests have been made by agents in unmarked military-style camouflage uniforms, operating out of unmarked vans. That bears no resemblance to the usual modus operandi of federal courthouse protective services. 103. For example, at approximately 2 a.m. on Wednesday, July 15, Mark Pettibone and Conner O’Shea were walking home from a peaceful protest in Portland when an unmarked van stopped near them, two blocks away from the Mark O. Hatfield federal courthouse.
3 Steve Vladeck & Benjamin Wittes, DHS Authorizes Domestic Surveillance to Protect Statues and Monuments, Lawfare (July 20, 2020), https://www.lawfareblog.com/dhs-authorizesdomestic-surveillance-protect-statues-and-monuments.
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104. According to O’Shea, agents “in camo jump[ed] out and start[ed] charging at [them].” The men were not wearing badges or other identifying insignia on their uniforms.
105. The men, who have since been identified as CBP officers, arrested Pettibone, searched him, and took him to the Hatfield courthouse, where he was detained in a holding cell. Officers read him his Miranda rights. After he declined to answer their questions, he was released. Officers never charged Pettibone with a crime or explained why he had been stopped.
106. In its own account of one such warrantless arrest on July 15, the federal government admitted that the federal agents never had probable cause.
107. The video of the July 15 arrest shows two combat-uniformed, masked, and helmeted federal officers grabbing a man from a sidewalk outside of federal property and pushing him into an unmarked van, which the officers then drive away.
108. As FPS Deputy Director Richard “Kris” Cline described in a July 21 press conference, the two CBP officers had followed the man and forcibly removed him to another location to question him.
109. Cline admitted that the officers were interested in the man because they had seen him among a crowd that included an individual aiming a laser at officers’ eyes. But they had no specific reason to believe that he had aimed the laser pointer.
110. The officers never had probable cause to detain the man. Standing near another individual who may have broken the law cannot provide reasonable grounds for law enforcement officers to arrest someone. And, indeed, after nearly twenty minutes of interrogation, Cline admitted that the officers “released the individual because they did not have what they needed”—namely, probable cause.
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Use of Excessive Force Against Peaceful Protesters 111. Also pursuant to the Policy, federal agents have committed physical assaults against peaceful protesters who pose no threat to federal property, including the repeated use of tear gas, flash-bang grenades, and other munitions against groups of protesters in downtown Portland. 112. Tear gas causes irritation to the area of contact within seconds of exposure, including eye burning, excessive tearing, blurred vision, and redness; runny nose and nasal burning and swelling; mouth burning, irritation, difficulty swallowing, and drooling; chest tightness, coughing, choking sensation, wheezing, and shortness of breath; and burns and skin rash. Some people experience nausea and vomiting. All of these symptoms can last for weeks after exposure. 113. The use of tear gas is, by its very nature, indiscriminate. Anyone in the area will breathe it in and be harmed by the gas. 114. Federal agents in Portland use tear gas in a predictable pattern. In her near-nightly attendance at the protests, Plaintiff James has observed that federal agents begin to fire tear gas between 11:30 p.m. and 1:00 a.m. to disperse the crowd, even when there has been no indication of protester violence or property damage, and even when federal agents are located safely behind a fence outside the courthouse. She has witnessed federal agents shoot protesters with rubber bullets, pepper-spray balls, and other munitions even when they have not been engaged in acts of violence and even when they have stood blocks away from the federal courthouse and posing no threat to the courthouse. 115. Federal agents have also assaulted multiple protesters directly, on several occasions leading to serious injuries.
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116. For example, on July 11, federal officers from the U.S. Marshals Service shot and severely injured a protester, Donovan LaBella, with a less-lethal impact munition while he was peacefully protesting across the street from the Hatfield federal courthouse. LaBella was rendered unconscious and bleeding from the assault.
117. LaBella was only recently released from the hospital. His skull was fractured, and he underwent facial reconstructive surgery in the hours after the encounter. LaBella also had a tube in his skull to drain blood and had vision problems in one eye from the injuries sustained. He continues to have difficulty with impulse control, which may be a permanent brain injury.
118. In another incident in the early hours of July 18, a wall of heavily armed federal agents, wearing gas masks and helmets, fired pepper-spray balls at an unarmed and unprotected nude protester.
119. So-called “pepper-spray balls” are projectiles that release a powdered substance that has effects similar to pepper spray. They therefore carry the dangers inherent in any projectile that is shot at someone, as well as the dangers of pepper spray.
120. At least one graphic video shows a dozen federal agents shooting pepper-spray balls in quick succession at the unnamed protester, dubbed “Naked Athena,” as she walked toward the agents standing guard at an intersection in downtown Portland. “Athena” was wearing nothing but a face mask and stocking cap.
121. Later the same day, U.S. Naval Academy graduate Christopher David attended his first-ever protest in front of the Hatfield federal courthouse. He planned to ask the officers about the oaths they had sworn to the Constitution, which he believed they were violating.
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122. As David approached the U.S. Marshals in front of the courthouse, he stayed in the middle of the street and did not step onto federal property. Nonetheless, federal officers pushed him back, and when he did not retreat, they began beating him with batons.
123. An officer pepper-sprayed his face from point-blank range. The pepper spray burned David’s eyes and blurred his vision. As he sought shelter, he walked into a cloud of gas that “made him cough and retch.” David, a former member of the Navy’s Civil Engineer Corps, believes that he “was walking through a giant cloud of CS gas.”
124. David later learned at the hospital that the officers had broken his right hand in two places. He will need reconstructive surgery and as a result of the beating is no longer going out to protest.
F. Defendant Wolf Was Unlawfully Purporting to Serve as Department of Homeland Security Secretary When He Enacted the Policy and Ordered the Deployment of Federal Agents 125. Defendant Wolf has enacted the Policy and designated ICE and CBP agents as
FPS agents for purposes of Operation Diligent Valor despite the fact that he has no legal authority to do so. Defendant Wolf’s exercise of the functions and duties of the Office of the DHS Secretary violates the Constitution and other applicable federal laws.
126. Defendant Wolf has purported to be Acting Secretary of the Department of Homeland Security since November 13, 2019, but he has no legally valid claim to that title. He therefore lacked authority to promulgate the Policy or to designate and deploy DHS employees as FPS agents. Those actions are thus illegal and void.
Legal Background 127. The Appointments Clause of the U.S. Constitution provides that the president shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme
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Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. U.S. Const. art. II, § 2, cl. 2. 128. The Secretary of Homeland Security is a “principal” (rather than “inferior”) Officer, and thus the Appointments Clause requires that the person holding that office be appointed by the President “with the Advice and Consent of the Senate.” Id. 129. And federal statutory law explicitly requires the Secretary of Homeland Security to be nominated by the president and confirmed by the Senate. See 6 U.S.C. § 112(a)(1). 130. The Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq. (“FVRA”), is the “exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency . . . for which appointment is required to be made by the President, by and with the advice and consent of the Senate,” unless a statute provides otherwise. 5 U.S.C. § 3347(a). Among its many provisions, the FVRA limits the time during which an office may be filled by an acting official. In general, “the person serving as an acting officer . . . may serve in the office . . . for no longer than 210 days beginning on the date the vacancy occurs.” Id. § 3346. 131. The misuse of acting officials, in violation of the Advice and Consent Clause, has been a chronic abuse of the Trump administration, including at the U.S. Department of Justice. 132. In the case of the DHS, an agency-specific statute—the Homeland Security Act (“HSA”)—rather than the FVRA, governs the order of succession for the position of Acting Secretary of Homeland Security when the office of the Secretary is vacant. See 6 U.S.C.
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§ 113(a)(1)(A), (g). Thus, when the Office of the DHS Secretary is vacant, the president lacks

the authority to select an acting officer under the FVRA.

133. Specifically, the HSA provides that vacancies in the Office of the Secretary of

Homeland Security are to be filled by the Deputy Secretary of Homeland Security and then, if

that Office is likewise vacant, by the Under Secretary for Management. Id. § 113(a)(1)(A),

(g)(1). Where the Offices of both the Deputy Secretary of Homeland Security and Under

Secretary for Management are vacant, the HSA provides the option of a secretary-established

order of succession. Id. § 113(g)(2).

134. The DHS has established multiple orders of succession and/or delegations

pertaining to the Office of the Secretary and other DHS positions. Those documents are

contained in a broader directive, entitled DHS Orders of Succession and Delegations of

Authorities for Named Positions, Dep’t of Homeland Sec., Delegation No. 00106, Revision No.

08.5 (Dec. 15, 2016) (“DHS Orders”).

135. From at least December 15, 2016, through and beyond April 11, 2019, Section

II.A of the DHS Orders stated in full that: “In case of the Secretary’s death, resignation, or

inability to perform the functions of the Office, the orderly succession of officials is governed by

Executive Order 13753, amended on December 9, 2016.” Id. (emphases added).

136. Executive Order 13753, in turn, set the order of succession at DHS in cases of

resignation of the Secretary. That order establishes that succession to the Acting Secretary role

must be, in order:

i.

Deputy Secretary of Homeland Security;

ii.

Under Secretary for Management;

iii.

Administrator of the Federal Emergency Management Agency;

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iv.

Under Secretary for National Protection and Programs;

v.

Under Secretary for Science and Technology;

vi.

Under Secretary for Intelligence and Analysis; and

vii.

Commissioner of U.S. Customs and Border Protection.

137. From at least December 15, 2016, through and beyond April 11, 2019, Section

II.B of the DHS Orders additionally provided: “I [Secretary of Homeland Security] hereby

delegate to the officials occupying the identified positions in the order listed ([at] Annex A), my

authority to exercise the powers and perform the functions and duties of my office, to the extent

not otherwise prohibited by law, in the event I am unavailable to act during a disaster or

catastrophic emergency.” DHS Orders § II.B (emphases added).

138. As of April 10, 2019, Annex A, which applied only when the Secretary is

“unavailable to act during a disaster or catastrophic emergency,” placed the Commissioner of

U.S. Customs and Border Protection third, behind the Deputy Secretary of Homeland Security

and the Under Secretary for Management. DHS Orders, Annex A. If, however, the Secretary of

Homeland Security resigned, the Commissioner of U.S. Customs and Border Protection

remained seventh in the standard order of succession. See Exec. Order No. 13753 § 1.

Secretary Nielsen’s Resignation and Installation of Kevin McAleenan as Purported Acting Secretary

139. The last Senate-confirmed Secretary of Homeland Security, Kirstjen Nielsen,

resigned her position effective no later than April 10, 2019.

140. On or about April 9 or 10, 2019, Nielsen issued an amendment to Annex A of the

DHS Orders (“April 2019 Amendment”). Again, by its explicit terms Annex A only applies

when the Secretary is “unavailable to act during a disaster or catastrophic emergency.” The only

action directed by the April 2019 Amendment was to “strik[e] the text of such Annex [A] in its

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entirety and insert” a different list of positions “in lieu thereof.” The inserted text listed the Commissioner of U.S. Customs and Border Protection third behind the Deputy Secretary of Homeland Security and Under Secretary for Management. The Amendment to Annex A labeled and identified the Annex not as an “order of succession,” but instead as an “order for delegation of authority.”
141. Annex A did not—and does not—apply to succession in the case of resignation of the Secretary of Homeland Security. The April 2019 Amendment did not direct any changes to the text of Section II.A of the DHS Orders. Thus, after faithfully and fully applying the April 2019 Amendment, Section II.A of the DHS Orders still required following the order of succession specified in Executive Order 13753 in the event of a Secretary’s resignation.
142. Despite the order of succession, on April 11, 2019, Kevin McAleenan, who was then serving as CBP Commissioner, purported to assume the position of Acting Secretary.
143. Under the DHS Orders, however, two other Senate-confirmed individuals were ahead of McAleenan to succeed to that Office: Christopher Krebs, who then served as the Senate-confirmed Under Secretary for National Protection and Programs, and David Glawe, who then served as the Senate-confirmed Under Secretary for Intelligence and Analysis.
144. Because McAleenan’s purported succession was unlawful under the HSA and DHS Orders of Succession and Delegations, he had no valid legal claim to the Office of Acting DHS Secretary and could not lawfully exercise the authority of that office.
McAleenan’s Resignation and Defendant Wolf’s Purported Succession to the Office of Acting DHS Secretary
145. On November 8, 2019, the 211th day of McAleenan’s purported tenure, he issued a directive attempting to amend the order of succession for the Secretary of Homeland Security to elevate Under Secretary for Strategy, Policy, and Plans to be fourth in line to lead the agency.
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Unlike Secretary Nielsen’s April 2019 Amendment, Mr. McAleenan did purport to change Section II.A of the DHS Orders such that, like Section II.B, it would now rely upon Annex A to establish the order of succession; thus Annex A for the first time would apply in the case of resignation by the Secretary of Homeland Security. See Amendment to the Order of Succession for the Secretary of Homeland Security. Mr. McAleenan’s attempted change would have been superfluous if Annex A had otherwise already applied in the case of resignations.
146. Mr. McAleenan likewise purported to change the order of the positions listed in Annex A, moving the position of Under Secretary for Strategy, Policy, and Plans to fourth in line, behind only the then-vacant Offices of Deputy Secretary of Homeland Security and Under Secretary for Management, as well as the Office then held by Mr. McAleenan, Commissioner of U.S. Customs and Border Protection. Id.
147. Mr. McAleenan’s attempted directive was without force of law because Mr. McAleenan was invalidly serving under the applicable DHS order of succession. Furthermore, even if McAleenan was appointed under the FVRA, he had exceeded the 210-day time limit for acting-official service set forth in that statute.
148. Mr. McAleenan thereafter resigned. On November 13, 2019, relying on Mr. McAleenan’s invalid succession directive, Defendant Wolf, who had been confirmed as Under Secretary for Strategy, Policy, and Plans on that same day, purported to become Acting Secretary of Homeland Security.
149. Mr. Wolf could not have served as Acting Secretary of Homeland Security, however, because Mr. McAleenan was without authority to make changes to DHS’s succession order.
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150. Furthermore, Mr. Wolf could not have served as Acting Secretary under the FVRA because the 210-day limit on such service expired before he purported to assume the Office. On November 6, 2019, the Office of the DHS Secretary had been vacant for 210 days since April 10, 2019, the date that former Secretary Nielsen purported to leave office. After November 6, 2019, at the latest, the FVRA required the office to “remain vacant” until the president submitted a new nominee for Senate confirmation. 5 U.S.C. § 3348(b)(1). Defendant Wolf began serving as Acting DHS Secretary on November 13, 2019, after the 210-day period under the FVRA had passed. Defendant Wolf has never been nominated by the president to serve as Secretary of Homeland Security.
151. After November 6, 2019, at the latest, and continuing to today, no officer or employee could perform the functions and duties of the Office of the DHS Secretary under the FVRA, unless and until the president submitted a new nominee for Senate confirmation. Since Secretary Nielsen left office, and as of the filing of this Complaint, President Trump has not submitted a new nominee for the position of DHS Secretary to the Senate for confirmation.
G. The Unlawful Policy Directed by Defendant Wolf and other Defendants Has and Continues to Injure Plaintiffs 152. Defendants’ unlawful policy has injured each of the Plaintiffs in concrete ways.
Defendants have frustrated Don’t Shoot Portland’s core organizational mission of advocating for its views about police mistreatment of Black people. Defendants have also forced the organization to divert resources in order to address and respond to the challenged federal policy. In addition, the members of Wall of Moms and individual Plaintiffs have suffered actual bodily injury from Defendants and continue to fear additional bodily injury. They have suffered economic injury in required expenses to protect themselves from Defendants and medical costs.
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And they have suffered constitutional injury through violation of their First, Fourth and Fifth Amendment rights.
Don’t Shoot Portland’s Mission Is Frustrated and It Is Forced to Divert Substantial Resources 153. As set forth above, the mission of Don’t Shoot Portland is to advocate and
provide support for individuals wishing to exercise their First Amendment rights to organize, protest, and create art for social change. In addition, a substantial activity of Don’t Shoot Portland is to provide mutual aid and support to Black Lives Matter protesters to enable them to engage in First Amendment activity in safe and healthy ways.
154. A particular focus of the organization has been to supply Black Lives Matter organizers with materials to protect protesters during the COVID-19 pandemic. In particular, it provides organizers with personal protective equipment like facemasks and hand sanitizer; first aid kits; baking soda and other items to provide relief from tear gas; as well as food, water, temporary shelter, and transportation. The supplies provided by Don’t Shoot Portland are all lawful and used to protect the health of peaceful protesters.
155. The unlawful deployment of federal officers has made it substantially more difficult for Don’t Shoot Portland to advance its mission of facilitating and supporting First Amendment activity in support of Black lives. As a result of the Policy, participating in lawful protests has become more difficult and dangerous.
156. Defendants’ unlawful policy has also caused the damage and destruction of Don’t Shoot Portland’s property. Since federal troops have come to Portland, Don’t Shoot Portland receives calls from organizers at the protest at least twice per week requesting that supplies be replenished because they have been destroyed by federal officers, either directly or through the
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excessive use of tear gas and other chemical munitions contaminating supplies and rendering them unusable.
157. In addition, Don’t Shoot Portland has been required to divert and expend thousands of dollars of funds and extensive time as a result of the Policy. Additional purchases and labor are required to find and replace supplies destroyed by Defendants.
Wall of Moms Members and Other Individual Plaintiffs Suffer Physical, Economic, and Constitutional Harms 158. The Policy has also injured the members of Wall of Moms and other individual plaintiffs. 159. While Ms. Barnum and other Wall of Moms members have been engaged in peaceful protest, federal officials acting pursuant to the Policy have attacked Wall of Moms members on multiple consecutive nights. In particular, Ms. Barnum and others have been shot with flash-bangs at a close distance; repeatedly tear-gassed; and shot at with additional projectiles (including rubber bullets, bean bag rounds, and rock salt). 160. These attacks on Ms. Barnum by Defendants have caused severe and prolonged bodily injury and trauma. Federal agents’ tear gas has made Ms. Barnum repeatedly vomit (including on herself and others) and caused burning eyes. Even a day after being gassed, she feels like she is in a toxic cloud, and the after-effects of tear gas prevent eating and sleeping in more than two-hour increments. The weapons that federal agents have shot at Ms. Barnum have caused pain in her jaw, ears, neck, and skin. These attacks have also caused substantial trauma and fear of repeated injury for exercising her lawful rights to peacefully protest. 161. Ms. James has also been assaulted by federal agents implementing the Policy including through being shot at with paint balls and pepper-spray balls, and then shot with rubber
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bullets on different days. Being shot directly with these items caused Ms. James substantial pain. It has also caused emotional distress, as she fears she will be kidnapped by federal agents.
162. Ms. Hester has been repeatedly subjected to tear gas from federal agents at the protests, which have caused her face and skin to burn for hours after she returns home. She feels nauseated and congested the days after she protests, and her symptoms from the previous night do not subside before the next night of protests arrives.
163. Ms. Cerquera has suffered similar injuries from being tear-gassed and sprayed with pepper-spray balls. The federal agents’ presence at the protests has also caused emotional distress, as she fears she will be kidnapped by federal agents.
164. In addition to these physical and emotional injuries, Plaintiffs have suffered economic harm. They have been forced to purchase protective and medical supplies to mitigate their injuries. They have also had substantial personal property damaged or destroyed by federal agents acting pursuant to the Policy.
165. In addition to the physical and economic injuries they have suffered, Wall of Moms members and individual Plaintiffs have all been deprived of or chilled in the exercise of their constitutional and civil rights. Plaintiffs have been forced by federal agents’ use of tear gas and other munitions to leave the lawful protests. Federal agents have thus violated Plaintiffs’ First and Fourth Amendment rights. Each fears that they will be shot, tear-gassed, or otherwise assaulted for participating in peaceful speech and association protected by the First Amendment, because of the viewpoint they espouse. Plaintiffs also fear they will be subject to unlawful and arbitrary arrest without probable cause. Notwithstanding the Policy to silence them, most of Plaintiffs have continued to place themselves at risk of further injury to continue to engage in First Amendment protected activity.
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166. But not all. Dr. Kipersztok is being denied her right to participate in peaceful protest because Defendants’ Policy has created a chilling effect. Before the arrival of federal agents, Dr. Kipersztok, an obstetrician and family physician, participated in lawful protest. After federal agents were deployed under Operation Diligent Valor, she intended to continue to exercise her right of protest against this show of federal force against fellow Portlanders. However, after watching reports of the federal agents’ use of force, she reasonably fears that attending these demonstrations would put her at serious risk of debilitating injury from federal agents. News coverage has made clear to her that the federal officers have used tear gas and lesslethal weapons indiscriminately at the crowd—even against peaceful protesters who are not on federal property. Dr. Kipersztok understands that she risks being shot or tear-gassed by federal agents, which could lead her to be hospitalized and therefore unable to care for her patients. Dr. Kipersztok cannot risk her own health—and therefore the health of so many others—in this way.
167. Dr. Kipersztok also fears that by attending a protest in federal officers’ presence, she would be arrested without probable cause and taken away in an unmarked van, which would both prevent her from caring for her patients and would cause professional and reputational harm. Dr. Kipersztok wishes to continue to attend in-person demonstrations to stand up for equal rights for all and fight for her patients’ right to live—but she cannot do so for fear of serious physical injury or unlawful arrest.
168. In sum, the Policy has caused serious and ongoing injuries, in many forms, to each of the organizational and individual Plaintiffs. They come to this Court seeking relief for these ongoing harms so that they may exercise their constitutional rights without fear of physical injury, arrest—or worse.
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CLAIMS FOR RELIEF COUNT I
(Violation of the Administrative Procedure Act by Violations of 40 U.S.C. § 1315 — DHS, CBP, ICE, FPS, Wolf, Cuccinelli, Morgan, Albence, Patterson)
169. Plaintiffs reallege and incorporate by reference all other paragraphs as if set forth fully herein.
170. The APA requires courts to hold unlawful and set aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(A), (C).
171. An agency action “includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” Id. § 551(13).
172. Defendants DHS, FPS, CBP, ICE, Wolf, Cuccinelli, Morgan, Albence, and Patterson (the “DHS Defendants”) have acted outside of their statutory authority in violation of 40 U.S.C. § 1315 and therefore in violation of the APA.
173. Under 40 U.S.C. § 1315(b)(1), the Secretary of Homeland Security may designate employees of the Department of Homeland Security, including employees transferred to the Department from the Office of the Federal Protective Service . . . as officers and agents for duty in connection with the protection of property owned or occupied by the Federal Government and persons on the property, including duty in areas outside the property to the extent necessary to protect the property and persons on the property. 174. The statute does not authorize these “designate[d] employees” to act as officers or agents to act beyond “the extent necessary” to protect federal property and persons on the property. 175. Upon information and belief, the DHS Defendants have deployed these employees “designate[d]” as FPS “officers and agents” according to a policy to intimidate and
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deter protesters because of their views and beliefs through surveillance; the use of militarized and unmarked force; the excessive deployment of crowd-control measures such as tear gas, pepper-spray balls, and less-lethal munitions; and warrantless arrests or custodial detentions without probable cause (“the Policy”). This policy exceeds statutory authority, which permits the deployment of DHS employees as FPS officers and agents only “to the extent necessary to protect the property and persons on the property.” 40 U.S.C. § 1315(b)(1).
176. Defendant Wolf’s establishment of the Policy, designation of ICE and CBP employees to serve as FPS officers, and deployment of those officers to Portland, are final agency actions in excess of statutory authorities.
177. These “officers and agents” have conducted arrests and seizures—including warrantless arrests and seizures without probable cause—that are not “in connection with the protection of property owned or occupied by the Federal Government and persons on the property.”
178. Statements from government officials, including the president, have made it clear that these arrests are in accordance with the Policy and intended to intimidate and deter protesters because of their views and belief, not to protect federal property. The president stated in a press conference, in reference to Portland, “We very much quelled it, and if it starts again, we’ll quell it again very easily. It’s not hard to do, if you know what you’re doing.”4
179. The DHS Defendants have therefore acted outside of their lawful authority, in a manner “not in accordance with law” in violation of 5 U.S.C. § 706(2)(A) and “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” in violation of 5 U.S.C. § 706(2)(C). 4 Katie Shepherd and Mark Berman,‘It Was Like Being Preyed Upon’: Portland Protesters Say Federal Officers in Unmarked Vans Are Detaining Them, Wash. Post (July 17, 2020), https://www.washingtonpost.com/nation/2020/07/17/portland-protests-federal-arrests/.
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180. Through their actions as described in this Complaint, the DHS Defendants have violated the substantive requirements of the APA. The DHS Defendants’ violations inflict ongoing harm upon Plaintiffs.
COUNT II (Violation of the Administrative Procedure Act by Arbitrary & Capricious Agency Action
— DHS, CBP, ICE, FPS, Wolf, Cuccinelli, Morgan, Albence, Patterson) 181. Plaintiffs reallege and incorporate by reference all other paragraphs as if set forth fully herein. 182. The APA requires courts to hold unlawful and set aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 183. The DHS Defendants have acted arbitrarily and capriciously and therefore in violation of the APA. 184. Under 40 U.S.C. § 1315(b)(1), the designation of DHS employees as FPS officers and agents is limited to duty “in connection with the protection of” federal property and persons on that property. 185. The DHS Defendants intend to, by deploying officers who are operating pursuant to the Policy, quell protests against police brutality and systemic racism. 186. The only justification that DHS Defendants have put forth for adoption of the Policy is a pretext, and therefore their adoption of the policy is arbitrary and capricious, and therefore in violation of the APA. 187. Through their actions as described in this Complaint, Defendants have violated the substantive requirements of the APA by acting arbitrarily and capriciously. Defendants’ violations inflict ongoing harm upon Plaintiffs.
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COUNT III (Violation of the First Amendment Freedoms of Speech, Assembly, and Petition — All
Individual Defendants) 188. Plaintiffs reallege and incorporate by reference all other paragraphs as if set forth fully herein. 189. Defendants’ practice of deploying physical force against demonstrators to remove them from places in which they have gathered with others to express their political opinions, as manifest by their actions against Plaintiffs and other protesters in Portland in July 2020 and by their repeated threats to deploy violence against protesters demonstrating against racial injustice generally and in Portland specifically, and by President Trump’s statements at ¶¶ 54, 56, 83-85, violates Plaintiffs’ First Amendment rights of freedom of speech and assembly. 190. First, the individual Defendants have threatened violence against protesters engaged in public demonstrations, a form of core First Amendment-protected conduct; the retaliatory violence would be sufficient to deter a person of ordinary firmness in Plaintiffs’ positions from speaking again; and the threatened violence would be causally related to Plaintiffs’ exercise of their constitutional rights. See Aref v. Lynch, 833 F.3d 242, 258 (D.C. Cir. 2016). Among other things, Defendants have enacted a policy of arresting protesters without probable cause in retaliation for their First Amendment-protected activity. See Nieves v. Bartlett, 139 S. Ct. 1715 (2019); Lozman v. City of Riviera Beach, 138 S. Ct. 1945 (2018). 191. Second, Defendants’ violent actions, and threats of future violent actions, are based on the viewpoint being expressed by the demonstrators—namely, opposition to police brutality and systemic racism. See Bible Believers v. Wayne County, 805 F.3d 228 (6th Cir. 2015).
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192. By depriving Plaintiffs of the opportunity to express their views, retaliating against them for their expressive activities, and discriminating against them on the basis of their viewpoints, Defendants have violated Plaintiffs’ First Amendment rights and are imposing ongoing irreparable harm upon those Plaintiffs.
COUNT IV (Violation of the Fourth Amendment Right to Freedom from Unreasonable Seizure — All
Individual Defendants) 193. Plaintiffs reallege and incorporate by reference all other paragraphs as if set forth fully herein. 194. Defendants have adopted a practice of deploying physical force, without provocation or legal grounds to do so, to compel demonstrators to move. 195. The use of physical force, including but not limited to tear gas and pepper-spray balls, to force Plaintiffs to leave the protest area without a warrant or probable cause to arrest them, violated Plaintiffs’ rights under the Fourth Amendment to the U.S. Constitution to be free from unreasonable seizures. 196. Through their actions as described in this Complaint, the individual Defendants have violated the Fourth Amendment. Defendants’ violations inflict ongoing harm upon Plaintiffs.
COUNT V (In the Alternative to Count IV, Violation of the Fifth Amendment Right to Due Process —
All Individual Defendants) 197. Plaintiffs reallege and incorporate by reference all other paragraphs as if set forth fully herein.
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198. In the alternative to the Plaintiffs’ claims under the Fourth Amendment, through their actions as described in this Complaint, the individual Defendants have violated the Fifth Amendment.
199. Defendants have adopted a practice of deploying physical force, without provocation, warning, or legal grounds to do so, against peaceful protesters.
200. Using physical force, including but not limited to tear gas and pepper-spray balls, against Plaintiffs while they are engaged in peaceful protests, including for the purpose of forcing Plaintiffs to leave the protest area, violates Plaintiffs’ rights under the Fifth Amendment to the U.S. Constitution to be free from arbitrary government action. See City of Sacramento v. Lewis, 523 U.S. 833, 845 (1998).
201. Defendants’ violations inflict ongoing harm upon Plaintiffs. COUNT VI
(Violation of the Administrative Procedure Act by Violation of the Constitution — All Defendants)
202. Plaintiffs reallege and incorporate by reference all other paragraphs as if set forth fully herein.
203. The APA requires courts to hold unlawful and set aside any agency action that is “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B).
204. Upon information and belief, the DHS Defendants have adopted a Policy of deploying these employees “designate[d]” as FPS “officers and agents” in a manner not authorized by statute: namely, to intimidate and deter protesters because of their views and beliefs through surveillance; the use of militarized and unmarked force; the excessive deployment of crowd-control measures such as tear gas, pepper-spray balls, and less-lethal munitions; and warrantless arrests or custodial detentions without probable cause.
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205. Defendants have made clear they intend to continue following this Policy, including the extreme and obvious ongoing Fourth Amendment violations of unlawful warrantless arrests without probable cause. The Fourth Amendment permits warrantless arrests or “detention for custodial interrogation—regardless of its label”—only where the arresting officer has probable cause to believe that the person being arrested or detained has committed a crime. Dunaway v. New York, 442 U.S. 200, 216 (1979).
206. Similarly, upon information and belief, Defendants DOJ, USMS, Barr, and Washington have adopted a policy of deploying U.S. Marshals to intimidate and deter protesters because of their views and beliefs through surveillance; the use of militarized and unmarked force; the excessive deployment of crowd-control measures such as tear gas, pepper-spray balls, and non-lethal munitions; and warrantless arrests or custodial detentions without probable cause, which is not authorized by statute, 28 U.S.C. § 566.
207. Defendants’ adoption of these policies are final agency actions. 208. These final agency actions violate the First, Fourth, and Fifth Amendments, as explained in paragraphs 188-201 above. 209. The Agency Defendants’ actions are therefore “contrary to constitutional right, power, privilege, or immunity” in violation of the APA. 5 U.S.C. § 706(2)(B). 210. Through their actions as described in this Complaint, all agency Defendants have violated the substantive requirements of the APA by violating the U.S. Constitution. Defendants’ violations inflict ongoing harm upon Plaintiffs.
COUNT VII (Violation of the Appointments Clause, U.S. Const. art. II, § 2, cl. 2 — Defendant Wolf)
211. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this Complaint as if fully set forth herein.
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212. The Secretary of Homeland Security is a principal officer of the United States whose appointment requires presidential nomination and Senate confirmation.
213. Defendant Wolf is performing the functions and duties of the Secretary even though he has not been confirmed by the Senate to hold that office and there is no legal basis for him to exercise the functions and duties of that office.
214. Defendant Wolf’s exercise of those functions and duties without having been confirmed by the Senate or otherwise having the legal authority to exercise them violates the Appointments Clause. His purported change to DHS policy is therefore invalid and void.
COUNT VIII (Unlawful Appointment Under 6 U.S.C. §§ 112-113 and/or the Federal Vacancies Reform
Act — Defendant Wolf) 215. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this Complaint as if fully set forth herein. 216. The Secretary of Homeland Security may be appointed by the president only with the advice and consent of the Senate. 6 U.S.C. § 112(a)(1). 217. When the Office of the Secretary is vacant, the order of succession is governed by 6 U.S.C. § 113 and relevant agency succession orders. 218. Pursuant to those authorities, Defendant Wolf is not legally authorized to hold the position of Acting Secretary or perform the functions and duties of that office. 219. Furthermore, even if the FVRA governed—which it does not—Defendant Wolf would still not be legally authorized to hold the position of Acting Secretary or perform the functions and duties of that office, because the applicable time limit has expired (and had already expired at the time that Defendant Wolf purported to assume the role of Acting Secretary).
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220. Because Defendant Wolf is performing the functions and duties of the Secretary of Homeland Security without having been nominated by the president or confirmed by the Senate, and without any other legal authority to do so, his purported change to DHS policy is invalid and void.
COUNT IX (Violation of the Administrative Procedure Act, 5 U.S.C. § 706(2) — Defendant Wolf)
221. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this Complaint as if fully set forth herein.
222. Because Defendant Wolf has been unlawfully serving as Acting Secretary of Homeland Security since November 13, 2019, and has had no authority to take any actions in that capacity, his purported change to DHS policy violates the APA and is invalid and void.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that the Court:
A. Declare that a. Congress has only authorized DHS to operate pursuant to specific statutory authorities, as relevant here to protect federal property as set forth in 40 U.S.C § 1315; b. DHS policies, orders, and directives that purport to direct DHS assets deployed to Portland under the auspices of the Federal Protective Service to operate pursuant to a policy to intimidate and deter protesters because of their views and beliefs through surveillance; the use of militarized and unmarked force; the excessive deployment of crowd-control measures such as tear gas, pepper-spray balls, and less-
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Case 1:20-cv-02040 Document 1 Filed 07/27/20 Page 47 of 48 lethal munitions; and warrantless arrests or custodial detentions without probable cause are unlawful; and
c. USMS policies, orders, and directives that purport to direct U.S. Marshals to operate for purposes other than those laid out in 28 U.S.C. § 566 and in a manner not authorized by the Constitution are unlawful; and
d. Defendant Wolf is not lawfully serving as Secretary of the Department of Homeland Security and any policies, orders, or directives he issues are void;
B. Enter such preliminary and permanent injunctive relief as is necessary to ensure compliance with the Constitution and laws; and
C. Award such additional relief as the interests of justice may require.
[Signature Block on Following Page]
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Dated: July 27, 2020

By: /s/ David A. O’Neil

Deana K. El-Mallawany (MA Bar No. 674825)* Justin G. Florence (D.C. Bar No. 988953) Benjamin L. Berwick (D.D.C. Bar No. MA0004) The Protect Democracy Project, Inc. 15 Main Street, Suite 312 Watertown, MA 02472 T: (202) 579-4582 | F: (929) 777-8428 deana.elmallawany@protectdemocracy.org justin.florence@protectdemocracy.org ben.berwick@protectdemocracy.org
Jessica A. Marsden (NC Bar No. 50855)* The Protect Democracy Project, Inc. 510 Meadowmont Village Circle, No. 328 Chapel Hill, NC 27517 T: (202) 579-4582 | F: (929) 777-8428 jess.marsden@protectdemocracy.org
Christine Kwon (CA Bar No. 319384)* The Protect Democracy Project, Inc. 555 W. 5th St. Los Angeles, CA 90013 T: (202) 579-4582 | F: (929) 777-8428 christine.kwon@protectdemocracy.org
Rachel F. Homer (D.C. Bar No. 1045077) The Protect Democracy Project, Inc. 2020 Pennsylvania Ave., NW, #163 Washington, DC 20006 T: (202) 579-4582 | F: (929) 777-8428 rachel.homer@protectdemocracy.org
Counsel for Plaintiffs
*Motion for admission pro hac vice forthcoming.

David A. O’Neil (D.C. Bar No. 1030615) DEBEVOISE & PLIMPTON, LLP 801 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 383-8000 daoneil@debevoise.com
Matthew Forbes (NY Bar No. 56643540)* Natascha Born (NY Bar No. 5444849) Morgan A. Davis (NY Bar No. 5444161) William Mattessich (NY Bar No. 5532551) Joshua B. Pickar (NY Bar No. 5579768) Ashley V. Hahn (NY Bar No. 5673298) Marissa MacAneney (NY Bar No. 5755418) Debevoise & Plimpton, LLP 919 Third Ave. New York, NY 10022 T: (212) 909-6000 mforbes@debevoise.com
P. Derek Peterson (AZ Bar No. 025683)* Perkins Coie LLP 2901 N. Central Ave., Suite 2000 Phoenix, AZ 85012 T: (602) 351-8000 pdpetersen@perkinscoie.com
Thomas Johnson (OR Bar No. 010645) C. Rian Peck (OR Bar No. 144012) Kevin Schock (OR Bar No. 181889) Holly Martinez (OR Bar No. 192265) Perkins Coie LLP 1120 N.W. Couch St., 10th Fl. Portland, OR 97209 T: (503) 727-2000 trjohnson@perkinscoie.com

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 Case 1:20-cv-02040-CRC Document 24 Filed 10/15/20 Page 1 of 47

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DON’T SHOOT PORTLAND et al., Plaintiffs,
v. CHAD F. WOLF, in his official capacity as Acting Secretary of Homeland Security,
Defendant.

Case No. 1:20-cv-2040-CRC

DEFENDANTS’ MOTION TO DISMISS Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Defendants hereby move to dismiss Plaintiffs’ Complaint (ECF No. 1) and submit the enclosed memorandum in support of that motion.

Case 1:20-cv-02040-CRC Document 24 Filed 10/15/20 Page 2 of 47
TABLE OF CONTENTS INTRODUCTION......................................................................................................................... 1 BACKGROUND ........................................................................................................................... 2 LEGAL STANDARD ................................................................................................................... 4 ARGUMENT................................................................................................................................. 4 I. PLAINTIFFS LACK STANDING....................................................................................................6
1. Don’t Shoot Portland. ............................................................................................. 7 2. Wall of Moms. ........................................................................................................ 9
1. Plaintiffs have not plausibly alleged that “the Policy” exists. .............................. 12 2. Absent such a policy, Plaintiffs cannot obtain declaratory or injunctive relief. ... 15 II. PLAINTIFFS HAVE NOT ALLEGED ANY FINAL AGENCY ACTION. .........................................16 III. PLAINTIFFS FAIL TO STATE PLAUSIBLE CLAIMS. ..................................................................20
1. Relevant legal authority. ....................................................................................... 20 2. Defendants’ deployment does not violate 40 U.S.C. § 1315(b)(1)....................... 21 3. Defendants’ deployment is not pretextual. ........................................................... 23
1. Former Secretary Nielsen’s April 9 Order Designated an Order of Succession That Applied When She Resigned. ....................................................................... 31
2. Acting Secretary McAleenan Lawfully Amended the Order of Succession. ....... 38
CONCLUSION ........................................................................................................................... 44
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INTRODUCTION Plaintiffs are organizations and individuals who allegedly desire to participate in racialjustice protests in Portland, Oregon, but fear that they will be subjected to riot-control actions taken by federal law enforcement officers. Plaintiffs’ claims are predominantly based on events that took place in July 2020, when otherwise peaceful protests outside the U.S. District Court in Portland regularly turned riotous and violent in the middle of the night, necessitating crowd-control and dispersal actions by federal agents tasked with defending the courthouse. Yet Plaintiffs do not seek redress for any of those past actions; their prayer for declaratory and injunctive relief is entirely prospective. Plaintiffs’ claims of future injury are speculative and should be dismissed, both because Plaintiffs lack standing and because they have failed to allege plausible claims on their merits. Plaintiffs’ past experiences hardly suggest that future harm is “certainly impending,” as Supreme Court precedent requires. Plaintiffs attempt to buttress their fear of future injury by alleging that Defendants have a “Policy” of intimidating and deterring protesters in Portland. Indeed, “the Policy,” though never cited or identified, is expressly relied on throughout Plaintiffs’ complaint, both as the premise of their claims and to undergird their theories of standing. But because “the Policy” does not exist, Plaintiffs cannot claim standing to challenge it. Not only do they lack standing, but Plaintiffs have failed to allege “final agency action” as required for judicial review under the Administrative Procedure Act (“APA”). The designation and deployment of additional federal agents is not final agency action as defined by the APA and applicable precedent, nor are future actions to be taken in real time, on the ground, by individual agents facing violent rioters. Plaintiffs’ APA claims must therefore be dismissed. Plaintiffs also fail to state claims that are plausible on their face. Counts 1 and 2 challenge the deployment of federal agents to protect federal property in Portland, but that is plainly within the scope of the applicable statute, 40 U.S.C. § 1315. Counts 3-6 are constitutional claims, but Plaintiffs have identified no pattern or practice of unlawful use of force of the sort that would stifle future speech, nor any policy of unlawful arrests that would violate the Fourth or Fifth
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Amendment. Plaintiffs claim in Counts 7-9 that Defendant Wolf was invalidly appointed and that his actions are therefore unlawful, but he is indeed lawfully serving as Acting Secretary under the Homeland Security Act and related agency orders of succession. In any event, any doubt about Mr. Wolf’s authority to issue the waivers has been removed: under an alternative basis, and out of an abundance of caution, Acting Secretary Wolf has ratified his prior delegable actions, including the actions at issue here, thus removing any question about their legality.
The Court should not indulge Plaintiffs’ fanciful request for prospective relief against hypothetical future law enforcement activity at protests Plaintiffs suggest they wish to attend. The Complaint should be dismissed in its entirety.
BACKGROUND The City of Portland, Oregon has seen near-nightly protests for more than four months. Cf. Compl. ¶ 34. These protests followed in the wake of George Floyd’s killing at the hands of police in Minneapolis, Minnesota. Id. Almost all Plaintiffs in this case claim to have participated in at least one of these protests, albeit in different roles and to varying extents. Id. ¶¶ 10-16. Earlier this summer, protesters in Portland directed their efforts at federal property within the city—namely, the Mark O. Hatfield U.S. Courthouse. See generally Portland Police Bureau (“PPB”), Protest Information and Updates.1 As noted on PPB’s timeline, there were fires set, projectiles thrown, vandalism, fireworks/mortars used, or riots declared, on 17 of 31 days in July. See PPB, Protests in Portland: A Timeline.2 However, since July, the protests have largely turned away from federal property. Id. Protests across the country have included various efforts to vandalize, damage, or destroy public monuments, memorials, and statues. On June 26, 2020, President Trump signed Executive Order 13933, Protecting American Monuments, Memorials, and Statues and Combating Recent Criminal Violence, 85 Fed. Reg. 40,081 (July 2, 2020). The Order sets a federal policy of
1 Available at https://www.portlandoregon.gov/police/81118. For reasons explained below, the Court can take judicial notice of this and similar documents when resolving this motion to dismiss. 2 Available at https://www.portlandoregon.gov/police/article/765145.
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prosecuting, to the greatest extent permitted under federal law, the criminal damaging or destroying of monuments, memorials, or statues in the United States. Id. at 40,082-83. The federal policy is, furthermore, to withhold federal support from State and local law-enforcement agencies that fail to protect such monuments, memorials, or statues. Id. at 40,083. Pursuant to that Order, on July 1, 2020, DHS announced a new task force to protect American monuments, memorials, statues, and federal facilities—known as the Protecting American Communities Task Force (“PACT”). Pursuant to PACT’s formation, DHS deployed additional law-enforcement officers to protect federal property in Portland, Oregon.
Plaintiffs are two organizations and five individuals who have protested, who have donated supplies to protests, or desire to protest in Portland. They advance various claims against Defendants. First and foremost, Plaintiffs allege that Defendants’ very deployment to Portland violates the Administrative Procedure Act, insofar as it exceeds Defendant’s statutory authority, Compl. ¶¶ 169-80 (Count 1), thus rendering the stated purpose pretextual, id. ¶¶ 181-87 (Count 2). Plaintiffs also allege various constitutional violations. They claim that Defendants have, through violence and threats of violence, “depriv[ed] Plaintiffs of the opportunity to express their views, retaliat[ed] against them for their expressive activities, and discriminat[ed] against them on the basis of their viewpoints,” in violation of the First Amendment. Id. ¶¶ 188-92 (Count 3). Plaintiffs allege further that Defendants’ “practice of deploying physical force, without provocation or legal grounds,” violates the Fourth Amendment, id. ¶¶ 193-96 (Count 4), or, alternatively, the Fifth Amendment, id. ¶¶ 197-201 (Count 5), and therefore the APA, id. ¶¶ 202-10 (Count 6). Finally, Plaintiffs allege that Acting Secretary Wolf’s “purported change to DHS policy,” which Plaintiffs do not define, is illegal, because he was invalidly appointed to his position. See Compl. ¶¶ 211-14 (Count 7) (claiming violation of the Appointments Clause); id. ¶¶ 215-20 (Count 8) (claiming violation of the Homeland Security Act or the Federal Vacancies Reform Act); id. ¶¶ 221-22 (Count 9) (claiming violation of the APA).
Importantly, for the purposes of this motion, Plaintiffs ask the Court only for declaratory and injunctive relief. See Compl. 46-47 (Prayer for Relief).
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LEGAL STANDARD Defendants bring this motion under Rule 12(b)(1), arguing that Plaintiffs lack standing, and under 12(b)(6), arguing that Plaintiffs have failed to state a claim. In response to a Rule 12(b)(1) motion to dismiss, the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. Indian River Cty. v. Rogoff, 201 F. Supp. 3d 1, 7 (D.D.C. 2016) (Cooper, J.) (citing Lujan v. Def. of Wildlife, 504 U.S. 555, 561 (1992)). In order for the Court to have subject-matter jurisdiction over a challenge to agency action, the plaintiff must have standing to sue. Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987) (“The defect of standing is a defect in subject matter jurisdiction.”). A court may examine materials outside the pleadings as it deems appropriate in order to resolve the question of its jurisdiction. See Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), (citing Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)), aff’d, No. 00-7176, 2001 WL 135857 (D.C. Cir. Jan. 18, 2001). A motion to dismiss for failure to state a claim under Rule 12(b)(6) should be granted if the allegations in a complaint do not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although well-pleaded factual allegations must be accepted as true, legal assertions devoid of factual support are not entitled to this assumption. See Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). In addition to well-pleaded factual allegations, “a court may consider on a motion to dismiss . . . public records subject to judicial notice.” Citizens for Responsibility & Ethics in Wash. v. Trump, 924 F.3d 602, 607 (D.C. Cir. 2019) (internal quotation marks omitted) (quoting Kaspersky Lab, Inc. v. DHS, 909 F.3d 446, 464 (D.C. Cir. 2018)).
ARGUMENT Plaintiffs’ statutory and constitutional claims fail for the following reasons. First, Plaintiffs lack standing. To obtain declaratory or injunctive relief—which is the only relief sought here—the “threatened injury must be certainly impending,” and “[a]llegations
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of possible future injury” are not sufficient. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (emphasis added)). In this case, Plaintiffs fear future harm because of their past experiences and, “on information and belief,” a supposed government policy of inflicting those harms. But Plaintiffs allegations, even taken as true, show only that they have been exposed to crowd-control munitions—for example, tear gas— which is entirely consistent with lawful use of force against other, violent rioters nearby. And “the Policy” alluded to at length in the Complaint simply does not exist; Plaintiffs’ “information and belief” is not enough to raise a plausible inference that it does. For these reasons alone, the case should be dismissed.
Second, Plaintiffs cannot challenge under the Administrative Procedure Act anything other than “final agency action for which there is no adequate remedy in a court.” 5 U.S.C. § 704. Future potential actions by law-enforcement agents on the ground, making decisions in real time while their safety is threatened, do not qualify. Nor would “the Policy” supposed by Plaintiffs, even if it existed, be reviewable under the APA.
Third, Plaintiffs fail to state plausible claims. The statute on which Defendants relied to deploy agents to Portland, 40 U.S.C. § 1315, requires the Secretary of Homeland Security to protect federal property, and expressly permits him to designate employees for “duty in areas outside the property to the extent necessary to protect the property and persons on the property,” as well as to “conduct investigations, on and off the property in question, of offenses that may have been committed” against federal property. Id. §§ 1315(a), (b)(1), (b)(2)(E). Therefore, Plaintiffs have not alleged a violation of any law and cannot state a plausible claim for relief. Plaintiffs’ constitutional claims likewise fail: the Complaint raises no plausible inference that Defendants are stifling speech or discriminating on the basis of viewpoint. Nor have Plaintiffs plausibly pled a pattern of unlawful searches or seizures. To the contrary, uses of force are justified under the circumstances to control crowds of demonstrators, which crowds may include violent and nonviolent members alike. Finally, as demonstrated below, Defendant Wolf is lawfully serving as Acting Secretary under the Homeland Security Act. And even if the Court agrees with Plaintiffs
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theory of the order of succession, there is now an alternate basis that permits Mr. Wolf to serve as Acting Secretary. Under that basis, he ratified the actions at issue here, removing any servicerelated doubt about their legality.

I.

PLAINTIFFS LACK STANDING.

Article III of the Constitution limits federal courts’ jurisdiction to certain “Cases” and

“Controversies.” The Supreme Court has explained that “[n]o principle is more fundamental to the

judiciary’s proper role in our system of government than the constitutional limitation of federal-

court jurisdiction to actual cases or controversies.” Clapper, 568 U.S. at 408 (quoting

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)). One element of this constitutional

limitation is that a plaintiff must have standing to sue, a requirement that is “built on separation-

of-powers principles” and “serves to prevent the judicial process from being used to usurp the

powers of the political branches.” Id.

As the parties invoking federal jurisdiction, Plaintiffs bear the burden of alleging facts that

establish the three elements that constitute the “irreducible constitutional minimum of standing,”

Lujan, 504 U.S. at 560—namely, that they have “(1) suffered an injury in fact, (2) that is fairly

traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a

favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). “Where, as here,

a case is at the pleading stage, the plaintiff must ‘clearly . . . allege facts demonstrating’ each

element.” Id. (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).

In this case, Plaintiffs draw upon their past experiences to suggest that they will face future

injuries. But those past experiences are entirely consistent with lawful use of force. They portend

no “certainly impending” future harm. Moreover, each Plaintiff’s standing is expressly premised

on “the Policy.” See Compl. ¶ 155 (Don’t Shoot Portland) (“As a result of the Policy, participating

in lawful protests has become more difficult and dangerous.”) (emphasis added); id. ¶ 158 (“The

Policy has also injured the members of Wall of Moms and other individual plaintiffs.”) (emphasis

added). Because no such policy exists, and has not been plausibly pled, Plaintiffs fail to satisfy

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their own prerequisite to standing. Don’t Shoot Portland Has Failed to Allege Organizational Standing.
There are two putative organizational plaintiffs in this case, which “can assert standing in one of two ways.” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Com., 928 F.3d 95, 100 (D.C. Cir. 2019) (“EPIC I”). An organization “can assert standing on its own behalf, as an organization, or on behalf of its members, as associational standing.” Id. To establish organizational standing, the plaintiff must “show that the defendant’s actions cause a concrete and demonstrable injury to the organization’s activities that is more than simply a setback to the organization’s abstract social interests.” Id. at 100-01. There are “two important limitations” on organizational standing, however. “First, the plaintiff must show that the defendant's ‘action or omission to act injured the organization’s interest.’” Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 878 F.3d 371, 378 (D.C. Cir. 2017) (“EPIC II”) (quoting PETA v. USDA, 797 F.3d 1087, 1094 (D.C. Cir. 2015) (internal quotation and brackets omitted)). “Second, the plaintiff must show that it ‘used its resources to counteract that harm.’” Id. (quoting PETA, 797 F.3d at 1094).
To establish associational standing on behalf of their members, Plaintiffs must adequately allege that “(1) at least one of their members has standing to sue in her or his own right, (2) the interests the association seeks to protect are germane to its purpose, and (3) neither the claim asserted nor the relief requested requires the participation of an individual member in the lawsuit.” EPIC I, 928 F.3d at 101.
1. Don’t Shoot Portland. Don’t Shoot Portland describes its mission as advocating and providing “support for individuals wishing to exercise their First Amendment rights to organize, protest, and create art for social change.” Compl. ¶ 153. The organization claims a “particular focus” on supplying Black Lives Matter with “materials to protect protesters during the COVID-19 pandemic,” including “facemasks and hand sanitizer; first aid kits; baking soda and other items to provide relief from tear gas; as well as food, water, temporary shelter, and transportation.” Id. ¶ 154.
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Plaintiffs claim that Defendants’ deployment to Portland has stymied this mission. But Plaintiffs never explain how Defendants’ protecting the federal courthouse in Portland makes it “substantially more difficult,” id. ¶ 155, to donate protective equipment to protesters. There is no allegation that Defendants are interrupting, intercepting, or impounding these supplies. Don’t Shoot Portland is just as free to donate supplies to Black Lives Matter as it was before the federal deployment to Portland; this theory of standing therefore fails.
Plaintiffs also claim that Defendants are damaging and destroying Don’t Shoot Portland’s property. Compl. ¶ 156. That theory of harm is far from obvious, since the materials described by Plaintiffs are, by their nature, consumable. Surely, for example, Don’t Shoot Portland did not anticipate that the hand sanitizer it donated would be returned, or that it would get its food or water back. These items are meant to be consumed by the user; thus, once donated by Don’t Shoot Portland, they are no longer its property in any real sense. And in the case of “baking soda and other items to provide relief from tear gas,” those items are meant to be consumed when exposed to crowd-control munitions. Id. ¶ 154. The fact that the protesters were exposed to such munitions, and then used the materials, can hardly be deemed a “destruction of Don’t Shoot Portland’s property.” Id. ¶ 156. Notably, Plaintiffs never allege that Don’t Shoot Portland’s property was destroyed while in its possession.
Finally, Don’t Shoot Portland alleges cursorily that it has had to “divert and expend thousands of dollars of funds and extensive time as a result of the Policy.” Id. ¶ 157. Putting aside that there is no “Policy,” Plaintiffs never say toward what they are diverting this money and time. If they mean toward provision of the supplies described above, that is not a “diversion” but rather the organization’s stated purpose, which cannot support standing. See Conservative Baptist Ass’n of Am., Inc. v. Shinseki, 42 F. Supp. 3d 125, 132, (D.D.C. 2014) (“Any resources that [organization] expended . . . were in the normal course of [the organization’s] operations, and it cannot convert its ordinary activities and expenditures . . . into an injury-in-fact.”); Elec. Privacy Info. Ctr. v. U.S. Dep’t of Educ., 48 F. Supp. 3d 1, 24 (D.D.C. 2014) (“[Plaintiff] cannot convert an ordinary program cost—advocating for and educating about its interests—into an injury in fact.”).
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In any event, however, Plaintiffs have not provided adequate detail to support this diversion-of-funds theory of standing. See Ctr. for Responsible Sci. v. Gottlieb, 311 F. Supp. 3d 5, 10 (D.D.C. 2018) (“The Court needs to know how resources are being drained and from and to where they are being diverted. . . . [T]he Court, without more specifics, is unable to discern whether those outlays would be ‘normally expended’ to carry out the organization’s advocacy mission and the ways in which resources would otherwise be spent.”); N. Eng. Anti-Vivisection Soc’y v. U.S. Fish & Wildlife Serv., 208 F. Supp. 3d 142, 166 (D.D.C. 2016) (“Organizational plaintiffs must allege specific facts indicating how a defendant's actions undermine the organization’s ability to perform its fundamental programmatic services.”) (quoting Nat’l Veterans Legal Servs. Program v. U.S. Dep’t of Def., No. 14-cv-1915, 2016 WL 4435175, at *6 (D.D.C. Aug. 19, 2016) (emphasis added) (alterations omitted)).
2. Wall of Moms. Unlike Don’t Shoot Portland, Wall of Moms does not allege organizational standing. See generally Compl. ¶¶ 158-68 (failing to allege any organizational mission or interest that has been harmed). Rather, Wall of Moms appears to be claiming associational standing on behalf of its members—namely, Plaintiff Barnum.3 Thus, because Ms. Barnum lacks standing, as explained below, Wall of Moms must also be dismissed.
The Individual Plaintiffs Have not Plausibly Alleged Standing to Redress Future Injury. Ms. Barnum alleges that she “has regularly attended Black Lives Matter demonstrations in Portland” from July 18-27, 2020. Compl. ¶ 12. Plaintiffs later characterize as “attacks on Ms. Barnum” the fact that she has been exposed to flash-bangs, tear gas, and non-lethal munitions. Id. ¶¶ 159-60. But Plaintiffs nowhere allege that Ms. Barnum or her organization was targeted in any way. And they caveat the allegation by saying that “Ms. Barnum and others have been shot . . . .” id. ¶ 159 (emphasis added), which makes it impossible for the Court to tell which of these “attacks”
3 Plaintiffs do not allege that any other individual Plaintiff is a member of Wall of Moms, and do not identify any non-plaintiff member of the organization.
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was actually visited on Ms. Barnum. Ultimately, the most plausible reading of Plaintiffs allegation is that Ms. Barnum was present when crowd-control or crowd-dispersal munitions were employed, and she was incidentally exposed. That alone is not sufficient to support standing for alleged future harms. Nor is Ms. Barnum’s having experienced vomiting, burning in her eyes, or sleep deprivation—all of which, again, is consistent with incidental exposure to the lawful use of nonlethal force. Id. ¶ 160.
Plaintiff Danialle James is a Portland resident who attended protests “almost every night” from May 27, 2020, to July 27, 2020. Compl. ¶ 15. She, too, claims to have been “assaulted by federal agents implementing the Policy.” Id. ¶ 161 (emphasis added). Because “the Policy” does not exist, and because Ms. James avers no other facts sufficient to infer that this “assault” was in any way unlawful, Ms. James cannot allege any “certainly impending” future law enforcement action that will harm her.
Ms. James also claims “emotional distress,” insofar as “she fears she will be kidnapped by federal agents.” Compl. ¶ 161. But there is no well-pled allegation that any Portlander has been kidnapped by federal agents, let alone a sufficient number to engender fear of kidnapping in a reasonable person. At most, Plaintiffs have alleged one arrest without probable cause, of Mr. Pettibone on July 15, 2020, id. ¶¶ 103-10. But Mr. Pettibone was not kidnapped; he was detained, taken to a holding cell, Mirandized, id. ¶ 105, and was released soon thereafter. This solitary incident—even if unlawful, as Plaintiffs allege—cannot lay a foundation for reasonable Portlanders to fear hypothetical, purported kidnapping by the federal government.
Ms. Cerquera likewise “fears she will be kidnapped by federal agents.” Compl. ¶ 163. Her unfounded fear should likewise should be rejected as a basis for standing. She also claims “similar injuries from being tear-gassed and sprayed with pepper-spray balls,” id., but does not plausibly allege that she was exposed because of any policy of excessive force. Rather, as with other individual Plaintiffs, the most plausible explanation is that Ms. Cerquera was among a crowd of persons being lawfully dispersed pursuant to a dispersal order. That cannot suffice as a foundation to fear future unlawful conduct.
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Ms. Hester’s allegations, Compl. ¶ 162, are not materially different from the various allegations listed above, and should be rejected for the same reasons.
Dr. Kipersztok’s claim to standing is perhaps weakest of all. She claims that “[n]ews coverage has made clear to her that the federal officers have used tear gas and less-lethal weapons indiscriminately.” Compl. ¶ 166 (emphasis added). If that theory of standing were sound, then anyone who watches the news could sue to enjoin federal law-enforcement activities in Portland. “A party claiming ‘only harm to his interest in the proper application of the laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large,’ has no concrete and particularized injury.” Kan. Corp. Comm’n v. Fed. Energy Regulatory Comm’n, 881 F.3d 924, 929-30 (D.C. Cir. 2018) (alterations omitted) (quoting Lujan, 504 U.S. at 573-74). Additionally, Dr. Kipersztok’s unfounded fear of being “arrested without probable cause and taken away in an unmarked van,” Compl. ¶ 167, fails for the reasons above.
Finally, individual Plaintiffs allege that they “have all been deprived of or chilled in the exercise of their constitutional and civil rights.” Compl. ¶ 165. But a supposed chilling effect will not provide standing for injunctive relief if it is “based on a plaintiff’s fear of future injury that itself was too speculative to confer standing.” Munns v. Kerry, 782 F.3d 402, 410 (9th Cir. 2015); see also Clapper, 568 U.S. 416 (plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending”). As described above, Plaintiffs’ fear of future injury is purely speculative.
Ultimately, each individual Plaintiff relies on a speculative chain of events to support her theory of standing. Their theory depends on future protests happening, on the Plaintiffs’ attending one of those protests, and—most importantly—on federal agents subjecting them to unreasonable force or the threat of unreasonable force. The facts alleged by Plaintiffs simply do not raise a plausible inference that this chain of events will unfold.
Plaintiffs Cannot Claim Standing to Challenge Future Actions Based on a “Policy” That Does Not Exist. When a plaintiff “seeks injunctive or declaratory relief specifically for the purpose of
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challenging an alleged policy or practice of a government agency,” as Plaintiffs do here, they must demonstrate that it is “realistically threatened by a repetition of [its] experience.” Nat’l Sec. Counselors v. CIA, 931 F. Supp. 2d 77, 91 (D.D.C. 2013) (quoting Haase, 835 F.2d at 910-11; Los Angeles v. Lyons, 461 U.S. 105, 109 (1983)). That requires “more than a nebulous assertion of the existence of a ‘policy’,” but rather plausible allegations that Plaintiffs are “likely to be subjected to the policy again.” Id. (quoting Haase, 835 F.2d at 911). Absent a plausible allegation, Plaintiffs should not be allowed to go fishing for “the Policy.” Cf. Alsaidi v. U.S. Dep’t of State, 292 F. Supp. 3d 320, 328 (D.D.C. 2018) (“Plaintiff cannot use the APA to justify a fishing expedition for evidence that defendants were motivated, not by their stated reason for denying her passport renewal application (that plaintiff is not a U.S. citizen), but by a discriminatory policy that plaintiff believes exists.”). Rather, their claims should be dismissed.
1. Plaintiffs have not plausibly alleged that “the Policy” exists. Plaintiffs allege that “DHS established a policy to intimidate and deter protesters because of their views and beliefs through a number of means: surveillance; the use of militarized and unidentified force; the excessive deployment of crowd-control measures such as tear gas, pepperspray balls, and less-lethal munitions; and warrantless arrests or custodial detentions without probable cause (‘the Policy’).” Compl. ¶ 80. They expressly rely on “the Policy” 15 times in their Complaint,4 both as a basis for their substantive claims, e.g., id. ¶ 102 (“Upon information and belief, the Policy authorizes agents to arrest or detain protesters without probable cause, in retaliation for their participation in protests against police brutality.” (emphasis added)), and to establish their standing, e.g., id. ¶ 155-56 (“As a result of the Policy, participating in lawful protests has become more difficult and dangerous. Defendants’ unlawful policy has also caused the damage and destruction of Don’t Shoot Portland’s property.” (emphasis added)). At no point do Plaintiffs identify, cite, or reproduce any actual policy—indeed, they admit candidly that it is “on information and belief” that they allege such a policy exists. Id. ¶¶ 80, 81, 102, 175. Because that
4 Id. ¶¶ 82, 94, 95, 102, 111, 125, 126, 155, 157, 158, 159, 161, 164, 165, 168.
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information is lacking, Plaintiffs have offered no “more than a nebulous assertion of the existence of a ‘policy,’” Haase, 835 F.2d at 911, and their case should be dismissed.
Instead of citing an actual policy of the sort Plaintiffs suppose, they infer such a policy from other policies. Plaintiffs cite Executive Order 13933, 85 Fed. Reg. 40,081 (June 26, 2020); see Compl. ¶ 72. The “purpose” section of that Order states: “Individuals and organizations have the right to peacefully advocate for either the removal or the construction of any monument. But no individual or group has the right to damage, deface, or remove any monument by use of force.” Id. at 40,081. More importantly, the actual “policy” promulgated is “to prosecute to the fullest extent permitted under Federal law, and as appropriate,” persons who destroy or vandalize monuments, memorials, statues, or religious property. Id. at 40,082 (emphasis added). And the federal policy is further to “withhold Federal support” to State and local governments if they fail to protect such properties, which only illustrates that federalism constrains what the federal government can do in this area. Nothing in this Order suggests a policy of widespread illegal use of force, protester intimidation, or unlawful arrests.
Plaintiffs also infer their supposed “Policy” from the formation of the Protecting American Communities Task Force (“PACT”), see Compl. ¶ 73, and the institution of Operation Diligent Valor. But “conducting ongoing assessments of potential civil unrest or destruction,” and “allocating resources to protect people and property,” id. (alterations omitted), are a far cry from a conscious policy of unlawful and unconstitutional action.
Plaintiffs also infer “the Policy” from a DHS memorandum leaked to, and posted by, the media. See Compl. ¶ 99-100 & n.3 (citing Vladeck & Wittes, DHS Authorizes Domestic Surveillance to Protect Statues and Monuments (July 20, 2020).5 According to Messrs. Vladeck and Wittes, the memorandum allegedly authorized three “appropriate missions” for monitoring protest activity: “(1) Threats to damage or destroy any public monument, memorial, or statue (MMS); (2) Threats of violence to law enforcement personnel, facilities, or resources; and (3) 5 Available at https://www.lawfareblog.com/dhs-authorizes-domestic-surveillance-protectstatues-and-monuments.
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Threats to damage, destroy, or impede the functioning of other government facilities.”6 Even assuming this is an accurate reading of the alleged memorandum, the “missions” do not substantiate Plaintiffs’ allegations of “the Policy.” As to the first mission, the authors note that the alleged memorandum prohibits surveillance “for the sole purpose of monitoring activities protected by the First Amendment or the lawful exercise of other Constitutional or legal rights, or for the purpose of suppressing or burdening criticism or dissent.” Id. Thus, far from suggesting the sort of “Policy” that Plaintiffs posit, this alleged memorandum specifically prohibits such a policy.
Plaintiffs cite a smattering of informal statements made by government officials, including the President. Plaintiffs begin with a post-inauguration statement by President Trump, saying he might “send in the feds” to Chicago to deal with rising homicide rates. Compl. ¶ 53. Then, earlier this year, the President suggested that he might “assume control” in Minneapolis, later suggesting that “[i]f a city or a state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.” Id. ¶¶ 54, 56. In June, the President suggested he would “[take] care of it” if local law enforcement would not, and in July, he said that he would not let “this happen” in New York, Chicago, Philadelphia, Detroit, Baltimore, or Oakland. Id. ¶¶ 59, 60.
None of these various, informal statements supports a plausible inference that “the Policy” alleged by Plaintiffs exists. The President and Defendants know that they cannot “assume control” of a city, and said as much in statements that Plaintiffs themselves cite. See Compl. ¶ 87 (“At times, federal officials have suggested that they need permission from local and state governments to send agents to the cities.”) (quoting President Trump as saying “the federal government is supposed to wait for the cities to call”); cf. id. ¶ 85 (citing Defendant Cuccinelli as saying that President Trump would “help restore peace to these beleaguered cities” (emphasis added)); id. ¶ 88 (citing Defendant Wolf as “reiterat[ing] that DHS needed ‘to be invited and have those state and local authorities ask for the federal government’s help.”). As to deploying “the United States 6 Because the alleged memorandum is not attached to the Lawfare article, Defendants cannot attest to its authenticity or accuracy.
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military,” that simply has not happened and is not relevant here. And it is far from clear what President Trump was referring to by “it” in June or “this” in July; Plaintiffs can hardly infer so specific a policy from such vague statements.
Plaintiffs allege that President Trump admitted “the Policy” at a roundtable event on July 13, 2020. Compl. ¶ 84. The President said, “We’ve done a great job in Portland,” which was “totally out of control” until “they went in and, I guess, we have many people right now in jail.” Id. The President added, “we very much quelled it. And if it starts again, we’ll quell it very easily.” Id. But Plaintiffs leave out what the “it” was—namely, violence directed specifically at law enforcement.7 At no point did President Trump suggest a policy of quelling any peaceful protests, let alone from a particular viewpoint, or by particular means. Plaintiffs also omit that the President delineated federal and local roles in law enforcement: “If it’s anything else, we tell them we work with the states to help them. But if you do anything where it’s a federal monument . . . 10 years in jail, monument or statue.” Id. At bottom, these remarks at a roundtable event do not indicate any “Policy” of particular law enforcement tactics, as Plaintiffs allege.
2. Absent such a policy, Plaintiffs cannot obtain declaratory or injunctive relief.
Because a “nebulous assertion” is all Plaintiffs have offered, their claims must be dismissed.8 In Haase, for example, the plaintiff alleged “one incident, ambiguous and partial
7 See C-SPAN, President Trump Holds Law Enforcement Roundtable (July 13, 2020), available at https://www.c-span.org/video/?473831-1/president-trump-holds-law-enforcement-roundtable. Because Plaintiffs’ claims rely on these remarks, for which the authenticity of them being spoken is not in question, the Court may consider them, even on a motion to dismiss. See Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1133 & n.5 (D.C. Cir. 2015) (citing Clorox Co. P.R. v. Proctor & Gamble Com. Co., 228 F.3d 24, 32 (1st Cir. 2000) (incorporating advertising copy alleged to have been misleading); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (incorporating annual report where plaintiffs’ claim rested on report’s failure to disclose facts); Kramer v. Time Warner Inc., 937 F.2d 767, 773-74 (2d Cir. 1991) (incorporating documents alleged to contain misrepresentations forming basis of plaintiff's claim)). 8 Plaintiffs’ failure to allege plausibly that “the Policy” exists is also grounds for dismissal under Rule 12(b)(6), because an essential element of any case challenging a governmental policy is identifying the policy. Cf. Tenacre Found. v. I.N.S., 78 F.3d 693, 696 (D.C. Cir. 1996) (affirming denial of preliminary injunction where the “gravamen” the plaintiff’s complaint was “that INS has
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statements from some of the participants, and three undocumented allegations of similar searches elsewhere.” 835 F.2d at 910. Yet the D.C. Circuit in Haase found “nothing in the record that plausibly supports the existence of the challenged policy, even accepting as true all material allegations in the complaint.” Id. (alterations and quotation marks omitted). The Court of Appeals agreed with the district court that the allegation of a “policy” was “altogether too phantasmal to warrant discovery of the magnitude which would be necessary to bring such a covert ‘policy’ to light,” id. (quoting opinion below), and thus the plaintiff lacked standing. Similarly, this case “must be dismissed.” Id.
* * * Plaintiffs lack standing to seek declaratory or injunctive relief against merely speculative future injury. Plaintiffs’ individual experiences form no basis to fear such future injury, and their invocation of a non-existent “Policy” cannot save the day. For this reason alone, the entire case should be dismissed.
II. PLAINTIFFS HAVE NOT ALLEGED ANY FINAL AGENCY ACTION. As demonstrated above, Plaintiffs lack standing to challenge future actions by Defendants.
But Plaintiffs’ failure to allege “certainly impending” harm is also fatal to their APA claims, because they have failed to allege any “final agency action” within the meaning of the APA. See 5 U.S.C. § 701(b)(2) (citing id. § 551(13) (“agency action” includes “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.”)); id. § 704 (“Agency action made reviewable by statute and final agency action for which there is
adopted an unlawful ‘policy’ of denying R–1 visas to those engaged in ‘training’ while working in a religious occupation,” which “allegedly burdens [the plaintiff’s] free exercise of its religious rights,” because the court could “find no ‘policy’ of the sort described.”); see id. at 697 (“The main point here is that the Kihu case in no way demonstrates that INS is enforcing an unlawful policy.”); Martin v. Malhoyt, 830 F.2d 237, 255 (D.C. Cir. 1987) (affirming summary judgment for the government against plaintiffs claim that “a pattern of arrests without cause pervades U.S. Park Police practices,” but where the plaintiffs tendered nothing but their “personal encounters” and “conclusory allegations”) (citing Carter v. District of Columbia, 795 F.2d 116, 123 (D.C. Cir. 1986) (affirming directed verdict because the “catalog of disquieting events [was] not sufficient to demonstrate a pervasive pattern of police officer indulgence in the use of excessive force”)).
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no other adequate remedy in a court are subject to judicial review.”) (emphasis added). The APA provides for review of discrete agency action; it is not a means to pose “generalized complaints about agency behavior.” Gerber Prod. Co. v. Perdue, 254 F. Supp. 3d 74, 83 (D.D.C. 2017) (quoting Cobell v. Kempthorne, 455 F.3d 301, 307 (D.C. Cir. 2006)). Because Plaintiffs have not alleged final agency action, Counts 1, 2, 6, and 9 should be dismissed.
Agency actions are final if two independent conditions are met: (1) the action “mark[s] the consummation of the agency’s decisionmaking process” and is not “of a merely tentative or interlocutory nature;” and (2) it is an action “by which rights or obligations have been determined, or from which legal consequences will flow.” Soundboard Ass’n v. Fed. Trade Comm’n, 888 F.3d 1261, 1267 (D.C. Cir. 2018) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal quotation marks omitted); see also Scenic Am. v. U.S. Dep’t of Transp., 836 F.3d 42, 55-56 (D.C. Cir. 2016). “An order must satisfy both prongs of the Bennett test to be considered final.” Sw. Airlines Co. v. U.S. Dep’t of Transp., 832 F.3d 270, 275 (D.C. Cir. 2016).9 Thus, “Bennett directs courts to look at finality from the agency’s perspective (whether the action represents the culmination of the agency’s decisionmaking) and from the regulated parties’ perspective (whether rights or obligations have been determined, and legal consequences flow).” Soundboard Ass’n, 888 F.3d at 1271.
Under the Bennett test, designating DHS employees under 40 U.S.C. § 1315 and deploying them to Portland is not “final agency action.” From the agencies’ perspective, neither action consummates Defendants’ decisionmaking process; rather, both are incremental steps toward managing an unfolding law-enforcement crisis. Agency actions are consummate when they are “not subject to further Agency review,” Sackett v. EPA, 566 U.S. 120, 127 (2012), and Defendants’ ongoing deployment can be augmented, curtailed, or rescinded at any time. From the public’s
9 In Soundboard Association, the D.C. Circuit made clear that courts should not “bootstrap[] Bennett’s second prong into its first.” 888 F.3d at 1272. Thus, the “impact” on regulated parties under the second prong does not affect whether the agency’s decision is “final” under the first prong. Id. (“The point where an agency’s decisionmaking process is complete cannot be pulled to and fro by the gravity of any particular decision for an industry.”).
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perspective, neither Defendants’ designation nor their deployment determines anyone’s legal rights or carries any legal consequence; no Plaintiff enjoys fewer legal rights, or has incurred any additional legal obligation, by virtue of either action. For these simple reasons, Counts 1 and 2 must be dismissed.
Nor does the future dispersal of any particular crowd on a given night, by federal agents on the ground, satisfy the Bennett test. Cf. Am. Ass’n of Cosmetology Sch. v. Devos, 258 F. Supp. 3d 50, 65 (D.D.C. 2017) (“The fact that an agency will apply a regulation if certain events take place in the future does not satisfy the final agency action requirement for purposes of an asapplied challenge.”) (quoting Nat’l Wildlife Fed’n v. EPA, 945 F. Supp. 2d 39, 45 (D.D.C. 2013)); Friends of Animals v. Ashe, 174 F. Supp. 3d 20, 37 (D.D.C. 2016) (“[P]laintiffs’ prediction that the agency will issue import permits to hunters in the future is not enough to establish an application of the challenged ‘policy’ that causes or threatens harm to a particular claimant. Accordingly, plaintiffs’ challenge involves neither an ‘agency action’ under section 702, nor a ‘final agency action’ under section 704, and any allegations about the future implementation of the Service’s alleged ‘policy’ are not yet ripe.”) (citing Nat’l Wildlife Fed’n, 497 U.S. at 891) (citation omitted); Davis v. United States, 973 F. Supp. 2d 23, 30 (D.D.C. 2014) (“Here plaintiff does not challenge final agency action. Rather, she merely seeks injunctive relief to compel two specific federal employees to act in a certain way. Therefore, any APA claim that Davis might have must also be dismissed.”)).
Moreover, actions taken by individual agents do not qualify as final agency action. “In evaluating the first Bennett prong,” a court must consider, among other things, “whether the action is . . . only the ruling of a subordinate official.” Soundboard Ass’n, 888 F.3d at 1267 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 151 (1967)). Cf. Gerber Prod. Co. v. Perdue, 254 F. Supp. 3d 74, 84 (D.D.C. 2017) (“Guidance supplied by a lower-level official generally does not qualify as a ‘final’ agency action, even if it proves influential.”) (citing Franklin v. Massachusetts, 505 U.S. 788, 797 (1992); Anglers Conservation Network v. Pritzker, 809 F.3d 664, 669-70 (D.C. Cir. 2016)); Trudeau v. Fed. Trade Comm’n, 384 F. Supp. 2d 281, 295 (D.D.C. 2005) (“The APA
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is the proper avenue for reviewing an agency’s action or decision. . . . However, the APA contains no remedy whatsoever for constitutional violations committed by individual federal employees unrelated to final agency action.”) (quoting Robbins v. Wilkie, 300 F.3d 1208, 1212 (10th Cir. 2002)).
Finally, law-enforcement investigations and operations generally are not final agency actions.10 Another court in this district recognized that much in Afifi v. Lynch, 101 F. Supp. 3d 90 (D.D.C. 2015). In Afifi, the plaintiff challenged the warrantless installation of a GPS device on his car. Id. at 95. Not only did the Plaintiff lack standing to pursue prospective relief, but he failed to state an APA claim because he failed to challenge “final agency action.” Id. at 110 n.14. The court observed that agency investigation is not typically, without more, final agency action. Id. (citing Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety Comm’n, 324 F.3d 726, 731-32 (D.C. Cir. 2003) (holding that an agency’s investigation, prior to filing any administrative complaint, was not “final agency action” because the agency “ha[d] not yet made any determination or issued any order imposing any obligation on [Plaintiff], denying any right of [Plaintiff], or fixing any legal relationship.”); ACLU v. NSA, 493 F.3d 644, 678 (6th Cir. 2007) (rejecting challenge to “NSA’s warrantless interception of overseas communications, the NSA’s failure to comply with FISA’s warrant requirements, and the NSA’s presumed failure to comply with FISA’s minimization procedures.” for failure to allege “final agency action”)); see also Parsons v. U.S. Dep’t of Justice, 878 F.3d 162, 169 (6th Cir. 2017) (finding that a gang designation was not “final agency action” because it “does not result in legal consequences because it does not impose
10 These steps are akin to agency investigations, without more, which are not final agency actions. See Mobil Expl. & Producing U.S., Inc. v. Dep’t of Interior, 180 F.3d 1192, 1198-99 (10th Cir. 1999) (holding that initiation of an audit was not “final agency action”) (citing Veldhoen, 35 F.3d at 225 (stating that, in a case involving a marine casualty reporting and investigation , “[a]n agency's initiation of an investigation does not constitute final agency action”); CEC Energy Co. v. Public Serv. Comm’n, 891 F.2d 1107, 1110 (3d Cir.1989) (concluding that agency’s determination that it had jurisdiction to investigate a public utility contract was not definitive but was merely a determination to commence an investigation); Aluminum Co. of Am. v. United States, 790 F.2d 938, 941 (D.C.Cir.1986) (“It is firmly established that agency action is not final merely because it has the effect of requiring a party to participate in an agency proceeding.”)).
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liability, determine legal rights or obligations, or mandate, bind, or limit other government actors”).
Because Plaintiffs have not alleged final agency action, they have no cause of action under the APA. Counts 1, 2, 6, and 9 should be dismissed. III. PLAINTIFFS FAIL TO STATE PLAUSIBLE CLAIMS.
Even if Plaintiffs had standing and a cause of action, their Complaint would have to be dismissed for failure to state a claim. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” IMAPizza, LLC v. At Pizza Ltd., 965 F.3d 871, 875 (D.C. Cir. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556).
Plaintiffs Have Not Plausibly Alleged that Defendants’ Deployment to Portland Violates the Administrative Procedure Act (Counts 1, 2). Plaintiffs claim that Defendants’ designation of ICE and CBP employees to serve as FPS officers, and Defendants’ deployment of those officers to Portland, violate the APA in two ways. First, Plaintiffs claim in Count 1 that the deployment is not “in connection with the protection of property owned or occupied by the Federal Government and persons on the property.” Compl. ¶¶ 77, 177 (quoting 40 U.S.C. § 1315(b)(1)). Second, Plaintiffs claim in Count 2 that § 1315 “is a pretext.” Compl. ¶ 186. 1. Relevant legal authority. Congress has authorized DHS to “protect the buildings, grounds, and property that are owned, occupied, or secured by the Federal Government.” 40 U.S.C. § 1315(a). This security mission is primarily carried out by the FPS. While engaged in their duties, FPS officers and agents are authorized to conduct a wide range of law enforcement functions, including carrying firearms, issuing warrants and subpoenas, conducting investigations on and off the federal property in
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question, making arrests, and enforcing federal laws for the protection of persons and property. Id. § 1315(b)(2). The Secretary of DHS may also designate DHS employees “as officers and agents for duty in connection with the protection of property owned or occupied by the Federal Government and persons on the property, including duty in areas outside the property to the extent necessary to protect the property and persons on the property.” Id. § 1315(b)(1). And one of the expressed “Powers” under the statute is to “conduct investigations, on and off the property in question, of offenses that may have been committed against property owned or occupied by the Federal Government or persons on the property.” Id. § 1315(b)(2)(E).
Further, Congress also delegated authority to DHS to issue regulations “necessary for the protection and administration of property owned or occupied by the Federal Government and persons on the property,” which regulations may include “reasonable penalties,” including fines and imprisonment for not more than 30 days. Id. § 1315(c), (c)(2). Current regulations cover many activities, including disorderly conduct on federal property (41 C.F.R. § 102-74.390); failing to obey a lawful order (41 C.F.R. § 102-74.385); and creating a hazard on federal property (41 C.F.R. § 102-74.380(d)). The regulations also empower—and indeed require—federal agencies to control access to federal property as necessary “to provide for the orderly conduct of Government business.” Id. § 102-74.375.
2. Defendants’ deployment does not violate 40 U.S.C. § 1315(b)(1).
Plaintiffs’ primary theory of liability is that, because § 1315 only allows federal agents to deploy “to the extent necessary to protect the property and persons on the property,” it violates that statute to adopt a policy of intimidating and deterring protesters because of their beliefs through surveillance, unlawful force, and illegal arrests. Compl. ¶¶ 174-75. As detailed at length above, Plaintiffs do not plausibly allege that any such “Policy” exists. For that reason alone, Count 1 should be dismissed.
Plaintiffs’ secondary arguments fare no better. They allege that federal agents “have extended their operations far from the immediate vicinity of the courthouse.” Compl. ¶ 96 (alleging
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that federal agents have driven protesters as far as “five blocks away from the [federal] courthouse”). Plaintiffs assume that federal law enforcement cannot issue or enforce dispersal orders to anyone outside federal property, which is incorrect. DHS officers have authority to “protect[]” federal property “in areas outside the property to the extent necessary to protect the property and persons on the property,” 40 U.S.C. § 1315(b)(1), and to “enforce Federal laws and regulations for the protection of persons and property” on and off federal property, id. § 1315(b)(2)(A). Similarly, the Marshals Service has “final authority regarding security requirements for the judicial branch,” including “the security of buildings housing the judiciary.” 28 U.S.C. § 566(i). Similarly, the Marshals Service has “final authority regarding security requirements for the judicial branch,” including “the security of buildings housing the judiciary.” 28 U.S.C. § 566(i). These statutes allow federal officers who have issued dispersal orders on federal property to effectuate those orders off federal property to the extent necessary. See United States v. Evans, 581 F.3d 333, 340 (6th Cir. 2009).
Plaintiffs’ only specific account of extra-courthouse operations is on July 24, 2020, when federal agents “drove the crowd more than two blocks away from the courthouse, declaring ‘This is an unlawful assembly.’” Compl. ¶ 97. That is contradicted by the judicially noticeable account of that evening’s protest by the Portland Police Bureau:
At 11 p.m., group members began setting fires inside the fence that protects the Federal Courthouse. Several other people were seen shaking the fence, launching projectiles over the fence, and using different tools to try and dissemble the fence. Several people breeched the fence and Federal Police Officers came out to disperse the crowd. As Federal Police Officers dispersed the group they were hit with large projectiles, various incendiaries, and flashed with lasers. By 1 a.m., a couple hundred people returned to the fence protecting the Federal Courthouse. These people continued to set fires, cut and breech [sic] the fence, and launch commercial grade fireworks towards the Federal Courthouse. The Federal Police Officers once again exited the Federal Court house and dispersed the crowd. Although the Federal Police dispersed the crowd, several people
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remained in the streets around the area of the Federal Courthouse and engaged in violent and criminal behavior. Because of this, at 1:58 a.m., Portland Police issued public address announcements declaring an unlawful assembly. The announcements instructed the group to leave the area, moving to the north and the west. Many people stayed in the area and continued to light fires, and destruct federal courthouse property.
Portland Police Bureau, Fires and Criminal Activity Outside the Federal Courthouse (July 24,
2020), available at https://www.portlandoregon.gov/police/news/read.cfm?id=251024 (emphasis
added).11 Not only does this account contradict Plaintiffs’, but it contradicts the notion that federal
agents are out to quell “peaceful protests.”
Even assuming that federal agents have operated a few blocks away from federal property,
that hardly evidences a policy of “taking over” Portland or “quelling” protests writ large. There
are nightly protests all over Portland, and there is no allegation that federal law enforcement has
taken action against any protest that did not immediately threaten federal property or federal
agents. That is precisely Congress’ mandate in § 1315, and Count 1 should be dismissed.12
3. Defendants’ deployment is not pretextual.
Plaintiffs also claim that Defendants’ invocation of § 1315 is pretextual, and therefore that
Defendants’ deployment to Portland was arbitrary and capricious. Compl. ¶¶ 181-87 (Count 2).
11 Again, Plaintiffs have put these facts in issue, citing no sources, and the Court is allowed—even on a motion to dismiss—to take judicial notice of the actual story. CREW, 924 F.3d at 607 (citing Kaspersky Lab, 909 F.3d at 464). “[A] police report is a public record subject to judicial notice. In re SAIC Backup Tape Data Theft Litig., 45 F. Supp. 3d 14, 20 (D.D.C. 2014) (citing Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004)); accord Cobin v. Hearst-Argyle Television, Inc., 561 F. Supp. 2d 546, 550-51 (D.S.C. 2008). 12 To the extent Plaintiffs challenge the particulars of Defendants’ deployment to Portland, such determinations are committed to agency discretion by law and thus unreviewable under the APA, 5 U.S.C. § 701(a)(2).On its face, the statute provides the Secretary of Homeland Security with discretion to designate and deploy officers. 40 U.S.C. § 1315(b)(1) (“The Secretary may designate employees . . . .”) (emphasis added); id. § 1315(d)(1) (“On the request of the head of a Federal agency having charge or control of property owned or occupied by the Federal Government, the Secretary may detail officers and agents designated under this section for the protection of the property and persons on the property.”) (emphasis added). The enumerated “powers” given to designated employees are similarly discretionary. Id. § 1315(b)(2) (“While engaged in the performance of official duties, an officer or agent designated under this subsection may . . . .”) (emphasis added).
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That claim fails, in principal part, because Defendants’ deployment is permitted by § 1315, as explained above.
Plaintiffs also allege that DHS’s true motive is to implement “the Policy” of “quell[ing] protests against police brutality and systemic racism.” Compl. ¶ 185. As detailed at length above, “the Policy” does not exist. Moreover, the actions alleged by Plaintiffs are inconsistent with such a policy. If Defendants’ goal were to quell all peaceful protests, then Defendants would not wait until protests turned violent before dispersing the crowds—as illustrated by the representative police report above. Plaintiffs also ignore the compelling reasons to send additional agents to Portland, amply demonstrated in that police report: rioters shaking the fence around the federal courthouse; cutting and attempting to breach that fence; and launching projectiles toward the federal courthouse.
Given these facts, Plaintiffs have not plausibly alleged a “disconnect between the decision made and the explanation given.” Cf. Dep’t of Com. v. New York, 139 S. Ct. 2551, 2576 (2019). This Court’s review is “deferential,” id., and Plaintiffs have alleged no facts to show that something other than the threat to federal property, and the legal imperative under § 1315 to protect such property, prompted Defendants’ deployment to Portland.
Plaintiffs Have Not Plausibly Alleged that Defendants Violated Plaintiffs’ First Amendment Rights (Count 3). Plaintiffs claim in Count 3 that Defendants have violated Plaintiffs’ First Amendment rights. Compl. ¶¶ 188-92. Once again, Plaintiffs rely on an un-cited “practice” that simply does not exist and has not been plausibly pled, which is enough to dismiss this claim for declaratory and injunctive relief. Nevertheless, Plaintiffs’ specific theories fail for the following reasons. First, Plaintiffs allege that Defendants have “threatened violence against protesters engaged in public demonstrations,” which constitutes unlawful retaliation in violation of the First Amendment. Compl. ¶ 190 (citing Aref v. Lynch, 833 F.3d 242, 258 (D.C. Cir. 2016)). Setting aside that there is no well-pled allegation of threatened violence against peaceful demonstrations, and that dispersing rioters has been the exception, not the rule, Plaintiffs fail to allege the second
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element in Aref: that Defendants have retaliated sufficiently to deter a person of ordinary firmness from speaking again. While suggesting “other things” broadly, Plaintiffs only specifically allege “a policy of arresting protesters without probable cause in retaliation for their First Amendmentprotected activity.” Id. (citing Nieves v. Bartlett, 139 S. Ct. 1715 (2019); Lozman v. City of Riviera Beach, 138 S. Ct. 1945 (2018)).13
Upon examination, however, Plaintiffs’ allegations of widespread “unlawful warrantless arrests” fall short. See generally Compl. ¶¶ 102-10. While suggesting “[m]any of these arrests have been made,” Plaintiffs only identify one incident: the July 15, 2020, arrest of Mark Pettibone. See id. Defendants are unable, in this procedural posture, to contest the facts alleged in these paragraphs. But suffice it to say, even if Mr. Pettibone’s detention was unjustified, that does not suggest a federal policy susceptible to declaratory or injunctive relief. Cf. Wood v. Moss, 572 U.S. 744, 763-64 (2014) (Ginsburg, J., for a unanimous Court) (“We therefore decline to infer from alleged instances of misconduct on the part of particular agents an unwritten policy of the Secret Service to suppress disfavored expression, and then to attribute that supposed policy to all fieldlevel operatives.”); Martin, 830 F.2d at 255 (“One instance, however egregious, does not a pattern or practice make.”).14
Second, Plaintiffs allege that “Defendants’ violent actions, and threats of future violent
13 The critical difference between these two cases is that in Nieves, the plaintiff challenged an ad hoc arrest, whereas in Lozman the plaintiff challenged an alleged “official municipal policy” of retaliation. Nieves, 139 S. Ct. at 1722. In the latter situation, the Court was clear that evidence of such a policy is required. Lozman, 138 S. Ct. at 1954. 14 This is equally clear in the analogous area of State or local liability under § 1983 and Monell. See Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (“Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.”); Jackson v. City of Hearne, 959 F.3d 194, 204 (5th Cir. 2020) (“But a single incident doesn’t establish a custom or policy.”); Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005) (a Monell “claim requires more evidence than a single incident to establish liability”); Losch v. Borough of Parkesburg, 736 F.2d 903, 911 (3d Cir. 1984) (“A policy cannot ordinarily be inferred from a single instance of illegality such as a first arrest without probable cause.”) (citing Walters v. City of Ocean Springs, 626 F.2d 1317, 1323 (5th Cir. 1980); Turpin v. Mailet, 619 F.2d 196, 202 (2d Cir. 1980)).
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actions, are based on the viewpoint being expressed by the demonstrators.” Compl. ¶ 191 (citing Bible Believers v. Wayne Cnty., 805 F.3d 228 (6th Cir. 2015) (en banc)). The exemplar case cited by Plaintiffs involved a “scenario” known as “the heckler’s veto,” in which “police silence a speaker to appease the crowd and stave off a potentially violent altercation.” Bible Believers, 805 F.3d at 234. In that case, for example, police had silenced a small group of Christian evangelicals to avoid a conflict with the Muslim crowds they were heckling. Id. It was undisputed that the police had silenced one group’s speech because of the other group’s “negative reaction” to that speech. Id. at 247. There is no allegation here, by contrast, that the government is acceding to one group’s plea to silence another; the “heckler’s veto” jurisprudence is simply irrelevant.
Even under the Bible Believers framework, Plaintiffs’ allegations fail. That case affirms that “time, place, and manner restrictions that are content-neutral” are valid speech restrictions. Id. In this case, there are no allegations that Defendants’ actions were content-based. There is no allegation, for example, that Defendants dispersed some protesters who were lighting fires on federal property but not other protesters who were doing the same. There is no allegation that protesters who shone lasers in officers’ eyes were arrested, while counter-protesters who did the same thing were not.
Absent some viewpoint- or content-based motivation, it is well understood that “government officials may stop or disperse a protest when faced with an ‘immediate threat to public safety, peace, or order.’” Edrei v. Maguire, 892 F.3d 525, 541 (2d Cir. 2018) (quoting Cantwell v. Connecticut, 310 U.S. 296, 308 (1940)); accord Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir. 1996). This presents an “obvious alternative explanation,” Twombly, 550 U.S. at 567, for the past and future harms that Plaintiffs allege: they were, and could later be, incidentally exposed to lawful crowd-control munitions. Consistent with the First Amendment, the government may impose restrictions to “contain or disperse demonstrations that have become violent or obstructive.” Washington Mobilization Committee v. Cullinane, 566 F.2d 107, 119 (D.C. Cir. 1977) (stating that it is “axiomatic” that “the police may, in conformance with the First Amendment, impose reasonable restraints upon demonstrations to assure that they be peaceful and
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not obstructive”); see Cantwell v. Connecticut, 310 U.S. 296, 308 (1940) (“When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the state to prevent or punish is obvious.”); Carr v. Dist. of Columbia, 587 F.3d 401, 410 n.6 (D.C. Cir. 2009) (noting that “where demonstrations turn violent, they lose their protected quality as expression under the First Amendment”) (quoting Grayned v. City of Rockford, 408 U.S. 104, 116 (1972)).
Because Plaintiffs have not alleged plausibly that Defendants are either conducting widespread, unlawful arrests, or discriminating against any particular viewpoint, Plaintiffs’ First Amendment claims should be dismissed.
Plaintiffs Have Not Stated Plausible Fourth or Fifth Amendment Claims (Counts 4, 5, 6). Plaintiffs claim in Count 4 that “Defendants have adopted a practice of deploying physical force, without provocation or legal grounds to do so, to compel demonstrators to move,” in violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures. Compl. ¶¶ 194-95. Alternatively, Plaintiffs claim in Count 5 that the same “practice” violates the Fifth Amendment’s prohibition on “arbitrary government action.” Id. ¶¶ 199-200. And in Count 6, Plaintiffs allege that Defendants’ “Policy” violates the APA, insofar as it was “contrary to constitutional right, power, privilege, or immunity.” Id. ¶¶ 203-04 (quoting 5 U.S.C. § 706(2)(B)). As noted above, Plaintiffs have sought only injunctive and declaratory relief, including under their Fourth and Fifth Amendment claims.15 But as explained above, Plaintiffs lack standing to obtain such relief. The “threatened injury” of future Fourth Amendment violations must be
15 Plaintiffs do not seek money damages, nor could they, since the individual defendants are all named in their official capacities. Official-capacity claims are in essence claims against the United States itself. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). “Federal constitutional claims for damages are cognizable only under Bivens, which runs against individual government officials personally.” Loumiet v. United States, 828 F.3d 935, 945 (D.C. Cir. 2016) (citing FDIC v. Meyer, 510 U.S. 471, 482 (1994)). Otherwise, “sovereign immunity shields the Federal Government and its agencies from suit.” DeBrew v. Atwood, 792 F.3d 118, 124 (D.C. Cir. 2015) (quoting Meyer, 510 U.S. at 475).
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“certainly impending” and not merely “possible.” Clapper, 568 U.S. at 409 (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). But Plaintiffs primarily allege past conduct by federal officers: tear gas, pepper spray, flash-bang grenades, rubber bullets, and projectile munitions such as paintballs. See Compl. ¶¶ 45, 48–50, 97, 111, 114, 159–63. These past incidents do not confer standing to seek prospective injunctive relief. Nor does Plaintiffs’ “fear” that they will be harmed by similar actions in the future, see id. ¶¶ 152, 160, 165, 166; see also id. ¶ 114 (alleging that “[f]ederal agents in Portland use tear gas in a predictable pattern”), which is mere “conjectur[e].” Lyons, 461 U.S. at 102; see id. at 107 n.8 (“It is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiff’s subjective apprehensions.”). Plaintiffs have not asserted that there is a certainly impending threat that federal officers will continue this conduct in the future—even assuming that it was unconstitutional. As such, plaintiffs lack standing to pursue injunctive relief. The claim for a declaratory judgment should be dismissed for the same reasons. See Fair Emp. Council of Greater Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1273 (D.C. Cir. 1994) (holding that Lyons applies to requests for declaratory relief).
Even assuming arguendo that Plaintiffs have standing to pursue a Fourth Amendment claim, their claim is not plausible on its face. To demonstrate excessive force, Plaintiffs must show that the officers’ use of force was objectively unreasonable under the circumstances. Graham v. Connor, 490 U.S. 386, 397 (1989). That showing requires “a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Id. at 396 (quoting Tennessee v. Gardner, 471 U.S. 1, 8 (1985)). Law enforcement officials may act to control a demonstration collectively “if it is substantially infected with violence or obstruction.” Wash. Mobilization Comm. v. Cullinane, 566 F.2d 107, 120 (D.C. Cir. 1977); see also Grayned v. City of Rockford, 408 U.S. 104, 116 (1972) (“[W]here demonstrations turn violent, they lose their protected quality as expression under the First Amendment.”).
The complaint states throughout that Plaintiffs and others were peacefully exercising their right to protest, and that some of these protesters were subjected to tear gas and other uses of force.
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See Compl. ¶¶ 4, 16, 47, 50-51, 111, 116, 154, 159, 166, 199-200. Nowhere does the Complaint allege that the entirety of the crowds protesting in downtown Portland were peaceful and devoid of violence, vandalism, or other unlawful behavior. Indeed, the complaint appears to acknowledge that not all protesters have remained peaceful. Id. ¶ 166 (“[F]ederal officers have used tear gas and less-lethal weapons indiscriminately at the crowd—even against peaceful protesters who are not on federal property.”); see also PPB, Fires and Criminal Activity Outside the Federal Courthouse (July 24, 2020), supra. As such, the federal agents were justified in dispersing the entire crowd, including violent and nonviolent protesters, and Plaintiffs have not plausibly alleged that the use of crowd-control devices like tear gas was excessive under the circumstances.
Plaintiffs also claim that the federal agents violated the Fourth Amendment by arresting protesters without a warrant and without probable cause. See id. ¶¶ 95, 102-10, 195. This claim fails because the only seizure instance alleged in the complaint was of one individual—Mark Pettibone—who is not a Plaintiff in this case. See id. ¶¶ 103-05. There is no allegation that any Plaintiff has been arrested by federal officers. The complaint states that some Plaintiffs fear being seized in the future, see id. ¶¶ 161, 163, 165, 167, 195, but as with the excessive force claims, fear of future harm is insufficient to establish standing, see Lyons, 461 U.S. at 107 n.8.
Plaintiffs also appear to assert a claim stemming from “surveillance” of protesters. See Compl. ¶¶ 95, 99-101. The complaint does not allege that any Plaintiff has been surveilled, nor does it allege that such surveillance would be an unconstitutional “search” in violation of the Fourth Amendment. See, e.g., United States v. Jones, 565 U.S. 400, 404–11 (2012). The threadbare allegations in the complaint therefore do not state a plausible claim for relief on this theory.
Finally, Plaintiffs’ invocation of an “alternative” claim under the Fifth Amendment’s Due Process Clause adds nothing to the foregoing Fourth Amendment analysis. See Compl. ¶¶ 197-201 (Count 5). The Complaint cites City of Sacramento v. Lewis, 523 U.S. 833, 845 (1998), for the proposition that the “[u]s[e of] physical force . . . violates Plaintiffs’ rights under the Fifth Amendment to the U.S. Constitution to be free from arbitrary government action.” Compl. ¶ 200. Lewis, however, did not involve allegations of excessive use of force, but rather dealt with high-
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speed chases. Lewis, 523 U.S. at 842. The Supreme Court in that case noted that “[s]ubstantive due process analysis is . . . inappropriate . . . if [the] claim is ‘covered by’ the Fourth Amendment.” Id. at 843. Count 5 focuses only on use of force, which is covered by the Fourth Amendment. “Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.” See Graham, 490 U.S. 395. Count 5 should therefore be dismissed.
* * * Because none of Counts 3-6 states a constitutional claim for relief that is plausible on its face, Count 6 (alleging that the same actions violate the APA as “contrary to constitutional right, power, privilege, or immunity”) must also be dismissed.
Mr. Wolf Lawfully Serves as Acting Secretary Under the HSA and Relevant Agency Orders of Succession. Plaintiffs claim that Mr. Wolf’s service as Acting Secretary violates the Homeland Security Act (“HSA”), Compl. ¶¶ 215-20, and that his exercise of the functions and duties of the Secretary of Homeland Security violates the Appointments Clause of the Constitution because he has not been confirmed by the Senate to serve in that position and because “there is no legal basis for him to exercise the functions and duties of that office,” id. ¶¶ 211-14. Accordingly, Plaintiffs allege that Mr. Wolf “lacked authority to promulgate the Policy or to designate and deploy DHS employees as FPS agents,” id. ¶ 129, and therefore claim that his attempts to do so were unlawful, id. ¶¶ 214, 220. Similarly, Plaintiffs claim that, because Mr. Wolf was not lawfully serving as Acting Secretary, those same actions were unlawful under the APA. Id. ¶ 222. These claims rest upon the allegation that when the last Senate-confirmed Secretary of Homeland Security, Kirstjen Nielsen, resigned her position, Kevin McAleenan unlawfully assumed the position of Acting Secretary and thus had no authority to designate the order of succession that Mr. Wolf currently serves under. See id. ¶¶ 139, 142, 145-49. Plaintiffs’ claims fail. The very documents they reference in their Complaint show that Mr.
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Wolf is lawfully serving as Acting Secretary. On April 9, 2019, then-Secretary of Homeland Security Nielsen exercised her authority under the HSA, 6 U.S.C. § 113(g)(2), to designate a new order of succession that governed all vacancies in the office of Secretary. See Decl. of Juliana Blackwell ¶ 2, Ex. 1, Designation of an Order of Succession for the Secretary (Apr. 9, 2019) (“April 2019 Order”). Under that order, Mr. McAleenan, as the Senate-confirmed CBP Commissioner, began serving as Acting Secretary when Ms. Nielsen resigned. See April 2019 Order at 2 (listing the CBP Commissioner third in line, behind the Deputy Secretary and Under Secretary for Management); Decl. of Neal Swartz ¶ 5 (explaining that the offices of Deputy Secretary and Under Secretary for Management were vacant when Ms. Nielsen resigned). In turn, Acting Secretary McAleenan later exercised his authority under § 113(g)(2) and amended the succession order. See Blackwell Decl. ¶ 4, Ex. 3, Amendment to the Order of Succession for the Secretary (Nov. 8, 2019) (“November 2019 Order”). Under that order, Mr. Wolf, as the Senateconfirmed Under Secretary for Strategy, Policy, and Plans, began serving as Acting Secretary when Mr. McAleenan resigned. Mr. Wolf is therefore lawfully serving as Acting Secretary, and he thus had the authority to take the actions that Plaintiffs challenge.
1. Former Secretary Nielsen’s April 9 Order Designated an Order of Succession That Applied When She Resigned.
Under the HSA, when both the office of the Secretary and the office of the Deputy Secretary are vacant, “the Under Secretary for Management shall serve as the Acting Secretary.” See 6 U.S.C. § 113(g)(1). The HSA then allows the Secretary to “designate such other officers of the Department in further order of succession to serve as Acting Secretary.” Id. § 113(g)(2). Plaintiffs concede that the Secretary has this power, see Compl. ¶ 133, and they agree that the CBP Commissioner was listed third (behind the Deputy Secretary and Under Secretary for Management) in the list of officials that Ms. Nielsen set out in her April 9 order, see id. ¶ 140. Plaintiffs instead allege that Executive Order (“EO”) 13753—and not the order that Ms. Nielsen designated on April 9—controlled the order of succession applicable when a Secretary resigned. See id. ¶ 141. And because Mr. McAleenan was not next in line under EO 13753, Plaintiffs allege
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that he had no authority to designate the order of succession that Mr. Wolf currently serves under. Id. ¶¶ 142-49. That argument is incorrect—Ms. Nielsen designated the first-ever § 113(g)(2) order of succession on April 9, and it superseded EO 13753 as a matter of law.
Plaintiffs allege that Ms. Nielsen amended only Annex A, which sets the order of delegation of authority under certain circumstances; Plaintiffs claim that Ms. Nielsen did not, however, separately designate an order of succession that applied when a Secretary resigned. Id. ¶¶ 140-41. Plaintiffs’ allegations about the legal effect of Ms. Nielsen’s April 9 order are legal conclusions, and the Court should disregard those allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). By its plain terms, the April 9 order—which designated an order of succession under 6 U.S.C. § 113(g)(2)—applies to more than the limited circumstances under Annex A, and it governed the order of succession when Ms. Nielsen resigned.
In the April 9 order, Ms. Nielsen designated an order of succession that applied to all vacancies regardless of reason. See generally April 2019 Order. The order says five times that Ms. Nielsen was designating an order of succession for the office of the Secretary, including in the subject line of the memorandum, the title of the order, and the text of each. Id. at 1-2. The order’s unqualified language shows that it applied to all vacancies. Thus, Ms. Nielsen’s April 2019 signed order—not EO 13753, as Plaintiffs allege—controlled the succession order when Ms. Nielsen resigned.
Beyond the unqualified language in the April 9 order, the provision she relied on (§ 113(g)(2)) shows that she changed more than just the delegation of authority that applied “in the event of disaster or catastrophic emergency,” which is when Annex A applies. Section 113(g)(2) empowers the Secretary to designate an “order of succession” for officers to serve as Acting Secretary in the event of a vacancy. Ms. Nielsen’s order expressly cites this statutory authority three times. See April 2019 Order at 1-2. Crucially, an order of succession is different from a delegation of authority. The HSA reflects this: a different provision, 6 U.S.C. § 112(b)(1), empowers the Secretary to delegate her authority to other officials in the agency even when the Secretary continues to occupy her office. Further, Plaintiffs state no reason that Ms. Nielsen would
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have invoked her § 113(g)(2) authority to designate the order of succession (and repeatedly stated that she was doing so) if she was merely amending the order for delegated authority during an emergency.
The legal effect of the April 9 order is even clearer when it is read in the context of earlier revisions to DHS Delegation 00106, which is an administrative document that is periodically updated and meant to consolidate and maintain in a single document the orders of succession and delegations of authority for many senior positions in DHS. See Swartz Decl. ¶ 4. Plaintiffs rely on the structure of DHS Delegation 00106 in arguing that EO 13753 controlled the order of succession when Ms. Nielsen resigned. See Compl. ¶ 134 (alleging that § II.A of DHS Delegation 00106 provided that EO 13753 controlled the order of succession when a Secretary resigned); id. ¶ 137 (alleging that § II.B of DHS Delegation 00106 set out a list of officials—in Annex A—who would exercise the Secretary’s delegated authority when the Secretary was unavailable to act during a disaster or catastrophic emergency); id. ¶¶ 140-41 (alleging that the April 9 order only amended Annex A, and thus § II.B of DHS Delegation 00106, without altering § II.A, meaning EO 13753 still controlled the order of succession when a Secretary resigned).16 That same structure and context of DHS Delegation 00106, as well as a congressional amendment to the HSA, makes clear that Ms. Nielsen did more than amend Annex A.
On December 15, 2016, then-Secretary Jeh Johnson signed Revision 8 to DHS Delegation 00106. See Blackwell Decl. ¶ 5, Ex. 4, DHS Orders of Succession and Delegations of Authorities for Named Positions, DHS Delegation No. 00106, Revision No. 08 (Dec. 15, 2016) (“Revision 8”)
16 Plaintiffs cite Revision 8.5 to DHS Delegation 00106 and then refer to Revision 8.5 as “DHS Orders.” See Compl. ¶ 134. Ms. Nielsen never signed Revision 8.5. See Blackwell Decl. ¶ 3, Ex. 2, DHS Orders of Succession and Delegations of Authorities for Named Positions, DHS Delegation No. 00106, Revision No. 08.5 (Apr. 10, 2019). As explained, DHS Delegation was last signed by then-Secretary Johnson on December 16, 2016. On April 10, 2019, DHS Delegation 00106 was updated with Revision 8.5 to reflect Ms. Nielsen’s April 9 order, see Swartz Decl. ¶ 4, but Revision 8.5 did not accurately capture Ms. Nielsen’s order. Rather, in Revision 8.5, § II.A was unchanged and said that EO 13753 would govern the order of succession when the Secretary resigned. But this is irrelevant because Ms. Nielsen’s signed order is the controlling document, and that signed order superseded EO 13753 as a matter of law.
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(signed at page 3). This signed revision addressed two different kinds of orders: (1) an order of succession, meaning a list of officials who could become Acting Secretary in the event of a vacancy, and (2) an order for delegating authority, meaning a list of officials who could exercise the Secretary’s authority during a disaster or catastrophic emergency. Id. at 1, § II.A-B.
First, § II.A of Revision 8 explained that, “[i]n case of the Secretary’s death, resignation, or inability to perform the functions of the Office,” the order of succession would be governed by EO 13753. This was not an order of the Secretary and did not invoke any authority vested in the Secretary, because under the HSA that existed at that time, the Secretary had no authority to designate an order of succession. At that time, only the President had the authority (under the FVRA) to designate an order of succession. See 5 U.S.C. § 3345(a)(2)-(3) (allowing the President to designate an acting official). Section II.A thus expressly tracked the FVRA: it noted that the President’s order of succession in EO 13753 would apply to a vacancy covered by the FVRA. Section II.A even listed the same triggering events as the FVRA. Compare 5 U.S.C. § 3345(a), with Revision 8 at 1, § II.A. After Mr. Johnson signed Revision 8, Congress gave the Secretary the power to designate an order of succession that would apply “[n]otwithstanding” the FVRA. See National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 1903, 130 Stat. 2000 (2016) (codified at 6 U.S.C. § 113(g) (Dec. 23, 2016)).
Second, in § II.B of Revision 8, Mr. Johnson separately exercised his own authority under 6 U.S.C. § 112(b)(1)—authority that the Secretary had possessed since the original enactment of the HSA in 2002 and creation of the Secretary’s position, see Pub. L. No. 107-296, § 102(b)(1), 116 Stat. 2135, 2142 (Nov. 25, 2002)—and delegated the authorities of his office to a list of officials in the event that he was temporarily “unavailable to act during a disaster or catastrophic emergency.” That list was set out in Annex A. This was not an order of succession—the circumstances addressed by § II.B are not the kind of vacancy that would trigger the FVRA, and the § II.B delegation would not make someone exercising that authority an Acting Secretary. Cf. English v. Trump, 279 F. Supp. 3d 307, 322 (D.D.C. 2018) (“Defendants argue, with some force, that [unavailability to act is] commonly understood to reflect a temporary condition, such as not
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being reachable due to illness or travel,” rather than a permanent condition such as a vacancy.), appeal dismissed, 2018 WL 3526296 (D.C. Cir. July 13, 2018). It is clear from the text of federal statutes governing DHS that orders of delegation and succession are distinct, as 6 U.S.C. § 112(b) by its terms addresses delegation but Congress then enacted the separate provision giving the Secretary power to issue succession orders in 6 U.S.C. § 113 on December 23, 2016. Secretary Johnson thus had no statutory authority at the time he issued the delegation order on December 16, 2019, to designate an order of succession.
This context, along with the text of the April 9 order, shows that when then-Secretary Nielsen changed Annex A’s list of officers, she also provided that Annex A would now perform two separate roles. It would both (1) designate the agency’s first order of succession under § 113(g)(2) and (2) amend the list of officials in the order for delegation of authority. Ms. Nielsen must have been treating pre-existing Annex A as relevant to both delegation and succession, as at the time of the most-recent amendment to Annex A, DHS Secretaries would have had power only to impact delegation orders, and § II.B could not have encompassed succession matters.
As to the first role, Ms. Nielsen established the first order of succession under § 113(g)(2); it would apply in the case of a vacancy that would otherwise have been covered by the FVRA. Before Ms. Nielsen’s order, there was no order of succession under § 113(g)(2). Rather, as acknowledged by § II.A of Revision 8, the President’s order of succession under EO 13753 governed when the Secretary’s office was vacant, because then-Secretary Johnson lacked the authority to create an order of succession. Thus, when Ms. Nielsen thrice invoked § 113(g)(2), she exercised the Secretary’s authority under that statute and designated an order of succession that applied “[n]otwithstanding” the FVRA. See 6 U.S.C. § 113(g)(2). As a matter of law, that order of succession superseded EO 13753’s FVRA order. Because § II.A was merely descriptive and was never an order from a Secretary, there was no need for Ms. Nielsen to amend expressly § II.A. Rather, to designate an order of succession for the office of the Secretary, she only needed to exercise her authority under § 113(g)(2), which she did.
The text of Ms. Nielsen’s order cited § 113(g)(2) and used that authority to “designate the
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order of succession for the Secretary of Homeland Security as follows.” April 2019 Order at 2. The order that “follows” was the amended list of officials in Annex A. Id. Annex A was also introduced with another clause and title showing that it would simultaneously continue to serve its original function as an order for delegation of authority. Id. But Annex A’s amended list was followed by a new provision that had not appeared in the delegation-only version of Annex A. The new provision noted that “[n]o individual who is serving in an office herein listed in an acting capacity, by virtue of so serving, shall act as Secretary pursuant to this designation.” Id. That reference to a “designation”—rather than a “delegation”—is yet another textual and structural acknowledgment that Annex A had executed the Secretary’s new authority under § 113(g)(2). See 6 U.S.C. § 113(g)(2) (authorizing the Secretary to “designate such other officers . . . in further order of succession to serve as Acting Secretary”).
As to the second role, Ms. Nielsen’s order changed the order for delegation of authority in the case of a disaster or catastrophic emergency by issuing a new version of Annex A. To do so, Ms. Nielsen did not need to expressly invoke § 112(b)(1), any more than Mr. Johnson had, because Annex A (via § II.B) already was, by its terms, a delegation of authority. Thus, by changing the officials listed in Annex A, she changed the order of delegation. But, by her express invocation of § 113(g)(2), Annex A’s list would serve two different functions when Ms. Nielsen resigned: both the order of succession and the order for delegation of authority.
To be sure, when Mr. McAleenan amended the order of succession on November 8, he expressly said that Annex A governs when a Secretary resigns. See November 2019 Order; see also Compl. ¶ 145. But while this clarified Annex A’s role, Mr. McAleenan’s order did more than that: it also changed the actual order of succession. Thus, it is not as though the sole purpose of Mr. McAleenan’s order was to address when Annex A governs. Nor does this clarifying language change the legal effect of Ms. Nielsen’s April 9 order—Ms. Nielsen’s order superseded EO 13753 as a matter of law.
As explained, Ms. Nielsen’s order designated the order of succession under 6 U.S.C. § 113(g)(2). That is the best reading of the order, which is buttressed by its context and the fact that
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all officials at the time understood Ms. Nielsen to be amending the succession order to provide that McAleenan would serve as Acting Secretary upon her resignation. Indeed, on April 10, DHS, through its General Counsel, sent a notice to the Senate as required by the HSA, 6 U.S.C. § 113(g)(3), and the FVRA, 5 U.S.C. § 3345 et seq., stating that the Office of the Secretary position had become vacant and listing Kevin McAleenan as the Acting Officer. See Swartz Decl. ¶ 7, Ex. 1, Letter from Neal J. Swartz, Associate General Counsel for General Law, DHS, to Hon. Michael R. Pence, President of the Senate (Apr. 11, 2019). The notice listed the authority for the acting designation as 6 U.S.C. § 113(g)(2). Id. at 2. To the extent that the order is genuinely ambiguous, this Court should give significant weight to the Department’s official contemporaneous understanding and implementation of the Order. Cf. Kisor v. Wilkie, 139 S. Ct. 2400, 2415-18 (2019).
Plaintiffs may rely on Casa de Maryland v. Trump, No. 8:20-cv-02118-PX, 2020 WL 5500165, at *20-23 (D. Md. Sept. 11, 2020), and Immigrant Legal Resource Center v. Wolf, No. 20-cv-05883-JSW, 2020 WL 5798269, at *7-8 (N.D. Cal. Sept. 29, 2020), which both concluded that by amending Annex A, Ms. Nielsen’s order only amended § II.B of DHS Delegation 00106. See also Nw. Immigrant Rts. Project v. USCIS, No. CV 19-3283 (RDM), 2020 WL 5995206, at *14 (D.D.C. Oct. 8, 2020) (“assum[ing], without deciding,” the same). But those courts erroneously confused orders of succession and delegations of authority. Delegations of authority, which simply allow an official to exercise certain powers of the office of the Secretary, are different from orders of succession, which are lists of officials who may become Acting Secretary in the event of a vacancy. As explained, the HSA recognizes that basic proposition. If Secretary Nielsen had intended only to amend the order for delegated authority during an emergency, she would have had no reason to invoke § 113(g)(2). Compare 6 U.S.C. § 112(b)(1) (allowing Secretary to delegate authority), with id. § 113(g)(2) (allowing Secretary to designate a further order of succession); see also Stand Up for California! v. DOI, 298 F. Supp. 3d 136, 141 (D.D.C. 2018) (explaining that “non-exclusive responsibilities [may] be delegated to other appropriate officers and employees in the agency”). These decisions also overlook the context of DHS
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Delegation 00106—specifically, that § II.A was never an order of the Secretary—and misunderstand the relationship between the HSA and the FVRA—namely, that Ms. Nielsen’s firstever order of succession under § 113(g)(2) superseded EO 13753 as a matter of law.
Because Ms. Nielsen’s order applied when she resigned, then-CBP Commissioner McAleenan properly assumed the position of Acting Secretary upon Ms. Nielsen’s resignation. See Compl. ¶¶ 139, 142; April 2019 Order at 2; Swartz Decl. ¶ 5.
2. Acting Secretary McAleenan Lawfully Amended the Order of Succession.
As the properly serving Acting Secretary, Mr. McAleenan was authorized to exercise all of the Secretary’s authority because “an acting officer is vested with the same authority that could be exercised by the officer for whom he acts.” In re Grand Jury Investigation, 916 F.3d 1047, 1055 (D.C. Cir. 2019); see also Ryan v. United States, 136 U.S. 68, 81 (1890) (“[I]n the abs[e]nce of the secretary, the authority with which he was invested could be exercised by the officer who, under the law, became for the time acting secretary . . . .”). This included the Secretary’s authority to “designate such other officers of the Department in further order of succession to serve as Acting Secretary.” See 6 U.S.C. § 113(g)(2).
Plaintiffs may attempt to rely on Northwest Immigrant Rights Project v. USCIS, 2020 WL 5995206, at *24, which reasoned that an Acting Secretary may not designate an order of succession under § 113(g)(2). But there are several flaws, including the two explained below, in that decision.
First, the decision is at odds with controlling precedent. In In re Grand Jury Investigation, the D.C. Circuit held that “an Acting Attorney General becomes the head of the Department when acting in that capacity because an acting officer is vested with the same authority that could be exercised by the officer for whom he acts.” 916 F.3d at 1055 (emphasis added). The Court held that the acting official is vested with any authority the vacant office has, including authority under the Appointments Clause. See id. at 1054-55 (“Acting Attorney General Rosenstein was the ‘Head of Department’ under the Appointments Clause as to the matter on which the Attorney General was recused.” (emphasis added)). That same reasoning applies to an Acting Secretary under
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§ 113(g)(2). Indeed, it would be unusual if an acting principal officer is vested with every power that the vacant office has except the power to appoint inferior officers.
Second, the district court concluded that reading § 113(g)(2) as allowing an Acting Secretary to designate an order of succession would be inconsistent with the FVRA. Nw. Immigrant Rts., 2020 WL 5995206, at *19 (explaining the FVRA is the exclusive means for acting service unless “a statutory provision expressly . . . authorizes . . . the head of an Executive department to designate an officer or employee to perform the functions and duties of a specified officer temporarily in an acting capacity” (first alteration in original) (citation omitted)). The Court recognized that “acting officials are typically ‘vested with the same authority that could be exercised by the officer for whom he acts,’” but concluded that with respect to just § 113(g)(2) an Acting Secretary cannot exercise that authority as there is no “statutory language that expressly vests the acting official with [the same] authority” held by the Secretary. See id. (citation omitted). This, again, is inconsistent with binding precedent, which recognizes an “acting officer is vested with the same authority that could be exercised by the officer for whom he acts,” “by virtue of becoming the [a]cting” official, not because of an independent grant of statutory authority. See In re Grand Jury, 916 F.3d at 1055-56; cf. In re Grand Jury Investigation, 315 F. Supp. 3d 602, 663 (D.D.C. 2018) (explaining that the language in 28 U.S.C. § 508(a), which allows the Deputy Attorney General to “exercise all the duties of” the office of the Attorney General, “is of the sort recognized to authorize the service of acting officers”), aff’d, 916 F.3d 1047 (D.C. Cir. 2019). And the Court pointed to no other statutory textual or structural evidence indicating that references to Secretary duties in § 113 excluded anyone performing those duties in just an acting capacity.
In sum, as the lawfully serving Acting Secretary, Mr. McAleenan had the power to designate an order of succession under § 113(g)(2). On November 8, 2019, he exercised that power and issued a directive that further amended the order of succession, which is incorporated by reference in the Complaint. See Compl. ¶ 145; see also November 2019 Order. This revised order moved the Under Secretary for Strategy, Policy, and Plans to fourth in line, behind only thenvacant offices and Mr. McAleenan’s position as CBP Commissioner. Compl. ¶ 146; see also
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November 2019 Order. Once Mr. McAleenan resigned, Mr. Wolf began serving as Acting Secretary under this order. Compl. ¶ 148.
3. Mr. Wolf Lawfully Serves as Acting Secretary Because, as shown above, Mr. McAleenan could lawfully exercise the authority of the Secretary under the HSA, his actions and Mr. Wolf’s service as Acting Secretary are consistent with the HSA and relevant agency orders of succession. Plaintiffs’ legal conclusions regarding the HSA, phrased as allegations, are simply wrong. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiffs also claim that Mr. Wolf’s service as Acting Secretary violates the Appointments Clause to the Constitution. They allege that because the Secretary is a “principal” (rather than “inferior”) Officer, the Appointments Clause requires that the person holding that office be appointed by the President “with the Advice and Consent of the Senate.” Compl. ¶¶ 128, 212. However, Plaintiffs do not appear to be alleging that no one can serve as Acting Secretary without nomination and confirmation to that position, but rather that Mr. Wolf’s service is unlawful because he was neither appointed and confirmed to the role of Secretary nor otherwise had some lawful basis to hold that position. See id. ¶ 214 (“Defendant Wolf’s exercise of those functions and duties without having been confirmed by the Senate or otherwise having the legal authority to exercise them violates the Appointments Clause.”). In other words, Plaintiffs appear to recognize that Congress may authorize an acting official to perform the functions and duties of that position by statute (specifically the HSA), see id. ¶¶ 130, 132, and their Appointments Clause argument repackages their argument that Mr. Wolf’s appointment is unlawful under the HSA, which is incorrect. In any event, Mr. Wolf’s service is consistent with the Appointments Clause. Although the Secretary of Homeland Security is a principal officer and must be Senate-confirmed, that does not mean that an individual who temporarily performs the functions of a principal office in an acting
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capacity must also be appointed as a principal officer. The Supreme Court and lower courts have repeatedly held that a person performing the duties of a vacant principal office is not a principal officer. See United States v. Eaton, 169 U.S. 331, 343 (1898). Indeed, courts have acknowledged that “the Supreme Court has repeatedly embraced the government’s view that it is the temporary nature of acting duties that permits an individual to perform them without becoming a principal officer under the Appointments Clause.” Guedes v. ATF, 356 F. Supp. 3d 109, 146 (D.D.C. 2019); see also id. (“[T]he Supreme Court has held and subsequently reaffirmed that an official designated to perform the duties of a principal office temporarily, on an acting basis, need not undergo Senate confirmation.”); United States v. Smith, 962 F.3d 755, 764 (4th Cir. 2020) (“Someone who temporarily performs the duties of a principal officer . . . may occupy that post without having been confirmed with the advice and consent of the Senate.”).
These holdings are confirmed by consistent legislative practice. Acts of Congress passed in three different centuries have authorized the designation of non-Senate-confirmed acting principal officers. See, e.g., 5 U.S.C. § 3345(a)(1), (3); Act of July 23, 1868, ch. 227, § 1, 15 Stat. 168; Act of Feb. 13, 1795, 1 Stat. 415; Act of May 8, 1792, ch. 37, § 8, 1 Stat. 279, 281. And the Executive Branch has repeatedly designated non-Senate-confirmed persons to serve as acting agency heads under these statutes. See Designating an Acting Attorney General, 2018 WL 6131923, at *8 (OLC Nov. 14, 2018) (identifying over 160 occasions).
Finally, Mr. Wolf’s prior confirmation as Under Secretary satisfies any confirmation requirement because the duties of the Secretary are germane to his position as Under Secretary. The Supreme Court has held that officers confirmed by the Senate for one office may serve in a second office that requires Senate confirmation—without a second confirmation—so long as the role of the second office is “germane” to the first office. Weiss v. United States, 510 U.S. 163, 176 (1994). Here, the duties of the Secretary are “germane” to Mr. Wolf’s position as Under Secretary.
Similarly, the claim that Mr. Wolf violated the APA (Count IX) is the same claim that Mr. Wolf has no authority because he is unlawfully serving, now recast under the APA. See Compl. ¶ 212 (“Because Defendant Wolf has been unlawfully serving as Acting Secretary of Homeland
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Security since November 13, 2019, and has had no authority to take any actions in that capacity, his purported change to DHS policy violates the APA and is invalid and void.”). It, too, must fail.
Because Mr. Wolf has lawfully held the position of Acting Secretary, Plaintiffs cannot maintain their claims that the actions he took were unlawful because he did not lawfully hold the position. Accordingly, their claims under the Appointments Clause, HSA, and APA regarding Mr. Wolf must be dismissed.
Acting Secretary Wolf’s Ratification of His Prior Orders Cures the Alleged Service-Related Defects in the Actions at Issue Here. As explained, Mr. Wolf was serving lawfully under the HSA and the relevant orders of succession when he took the actions that Plaintiffs challenge. But DHS recognizes that ongoing challenges to Acting Secretary Wolf’s service risk an unnecessary “distraction to the mission of the Department of Homeland Security.” See Swartz Decl. ¶ 8, Ex. 2, Order Designating the Order of Succession for the Secretary of Homeland Security (Sept. 10, 2020). Thus, even if the Court finds that Ms. Nielsen’s order did not control the order of succession when she resigned and concludes that Mr. Wolf was not lawfully serving when he took the actions that Plaintiffs challenge, DHS has taken steps necessary to cure any potential service-related defects in the those actions. Under Plaintiffs’ theory, EO 13753 (not Ms. Nielsen’s April 9 order) would control the current vacancy in the office of the Secretary. See Compl. ¶ 141. On September 10, the President submitted Mr. Wolf’s nomination to serve as Secretary of Homeland Security to the Senate. Under Plaintiffs’ theory, there is no § 113(g)(2) order of succession. See id. ¶ 141. Thus, the FVRA would apply. And under the FVRA, an acting official may serve while a nomination is pending, even if the FVRA’s initial 210-day limit on acting service has expired. See 5 U.S.C. § 3346(a)(2); S. Rep. No. 105-250, at 14 (1998). Thus, when the President submitted Mr. Wolf’s nomination, the FVRA would have permitted acting service, and the President’s FVRA designation set out in EO 13753 would have controlled. Under EO 13753, the Senate-confirmed Administrator of the Federal Emergency Management Agency (FEMA), Peter T. Gaynor, would have been the officer next in
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line17 and thus would have begun serving as Acting Secretary under the FVRA after the President submitted Mr. Wolf’s nomination.18 Thus, after the President submitted Mr. Wolf’s nomination, “out of an abundance of caution,” on September 10 Mr. Gaynor exercised “any authority” he might possess as Acting Secretary and designated an order of succession for the office under § 113(g)(2), which applies “[n]otwithstanding” the FVRA.19 Id.
That is, although DHS disagrees with the legal theory advanced by Plaintiffs in this and other cases, if the Court agrees with Plaintiffs and finds that Ms. Nielsen’s order did not control the order of succession when she resigned, the result would be that Mr. Gaynor (not Mr. Wolf) would have been the proper Acting Secretary under the EO’s order of succession when the President submitted Mr. Wolf’s nomination. Mr. Gaynor, in turn, would have been authorized under 6 U.S.C. § 113(g)(2) to alter the order of succession. And as a result of Mr. Gaynor’s September 10 order—through which the FEMA Administrator and the Under Secretary for Strategy, Policy, and Plans would become sixth and fourth in line, respectively—Mr. Wolf began
17 The first two positions listed in EO 13753, the Deputy Secretary of Homeland Security and the Under Secretary for Management, were at the time and still are vacant. 18 Plaintiffs’ allegation that “when the Office of the DHS Secretary is vacant, the president lacks the authority to select an acting officer under the FVRA,” does not change the analysis. See Compl. ¶ 132. To begin, this allegation is a legal conclusion that the Court should disregard. It’s also inconsistent with the HSA itself, which shows that the FVRA can apply to vacancies in the office of the Secretary. See 6 U.S.C. § 113(a)(1)(A) (Deputy Secretary is the Secretary’s “first assistant for purposes of” the FVRA). Beyond that, Plaintiffs allege that EO 13753 should control the current vacancy in the office of the Secretary. See id. ¶ 141. But they apparently think EO 13753 should control because Revision 8.5 to DHS Delegation 00106 says so. See id. That, again, is a legal conclusion that the Court should disregard. And for the reasons explained, that legal conclusion is wrong. Section II.A of DHS Delegation 00106 is not—and never has been—an order of the Secretary. Rather, § II.A simply explained (but did not order) that the President’s FVRA designation would control the order of succession when the office of the Secretary was vacant. 19 The Court in Northwest Immigrant Rights Project, 2020 WL 5995206, at *24, concluded that Mr. Gaynor, as an Acting Secretary, could not designate this order of succession. As explained, an Acting Secretary is vested with all the authority of the Secretary, including the authority under § 113(g)(2).
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serving as the Acting Secretary, as the most senior official now serving in that line of succession.20 See 6 U.S.C. § 113(g)(2).
On September 17, 2020, Acting Secretary Wolf ratified “each of [his] delegable prior actions as Acting Secretary” “out of an abundance of caution.” Ratification of Department Actions, 85 Fed. Reg. 59651 (Sept. 23, 2020). In doing so, he confirmed that he had “full and complete knowledge of the contents and purpose of any and all actions taken by [him] since November 13, 2019.” Id.
The ratification covered all “delegable” actions, which includes the actions challenged in this lawsuit. The Secretary’s authority is delegable because no statute or regulation prevents the Secretary from delegating this authority. See, e.g., 40 U.S.C. § 1315(b); see also Stand Up for California!, 298 F. Supp. 3d at 142 (“As the D.C. Circuit has held, ‘[w]hen a statute delegates authority to a federal officer or agency, subdelegation to a subordinate federal officer or agency is presumptively permissible absent affirmative evidence of a contrary congressional intent.’” (alteration in original) (citation omitted)). The Secretary’s authority is presumptively delegable, and there is no affirmative evidence to overcome the presumption. Stand Up for California!, 298 F. Supp. 3d at 143. And Congress knows how to prevent delegation. See id. (listing examples of phrases Congress uses to prevent delegation); see also 31 U.S.C. § 1344(d)(3).
In sum, even if the Court agrees with Plaintiffs’ reading of the April 9 order, there is an alternate basis for Mr. Wolf’s service as Acting Secretary. Acting under that alternate basis, Mr. Wolf ratified the actions that Plaintiffs challenge here. That ratification resolves the claims on the merits in Defendants’ favor.
CONCLUSION For the foregoing reasons, the Complaint should be dismissed.
20 The first three positions in Mr. Gaynor’s order of succession, the Deputy Secretary of Homeland Security, the Under Secretary for Management, and the CBP Commissioner, were at the time and still are vacant.
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Dated: October 15, 2020

Respectfully submitted,
JEFFREY BOSSERT CLARK Acting Assistant Attorney General
BRIGHAM J. BOWEN Assistant Branch Director
/s/ Jason C. Lynch JASON C. LYNCH (D.C. Bar No. 1016319) MICHAEL P. CLENDENEN JEFFREY A. HALL JORDAN L. VON BOKERN Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street NW, Rm. 11214 Washington, DC 20005 Tel: (202) 514-1359 Email: Jason.Lynch@usdoj.gov
Attorneys for Defendants

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 Case 1:20-cv-02040-CRC Document 25-2 Filed 10/29/20 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

DON’T SHOOT PORTLAND, et al.

)

)

Plaintiffs,

)

v.

)

)

CHAD F. WOLF, in his official capacity

)

as Acting Secretary of Homeland Security,

)

et al.,

)

)

Defendants.

)

__________________________________________)

Case No. 1:20-cv-2040-CRC

BRIEF OF AMICI CURIAE CURRENT AND FORMER ELECTED PROSECUTORS, ATTORNEYS GENERAL AND LAW ENFORCEMENT LEADERS, FORMER UNITED STATES ATTORNEYS AND DEPARTMENT OF JUSTICE OFFICIALS IN SUPPORT
OF PLAINTIFF DON’T SHOOT PORTLAND, ET AL.

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TABLE OF CONTENTS I. INTEREST AND IDENTITY OF AMICI CURIAE ............................................................... 1
II. SUMMARY OF ARGUMENT .............................................................................................. 2
III. ARGUMENT.......................................................................................................................... 5 A. Fortifying Community Trust Is Essential to Promoting Public Safety ............................... 5
B. Local Law Enforcement Must Guide The Response To Community Unrest Through DeEscalation, Wherever Possible, And By Calling On Years Of Relationship-Building With Their Own Local Community ............................................................................................. 8
C. Amici Have a Duty to Protect Their Local Communities, Including Against Federal Authorities......................................................................................................................... 10
IV. CONCLUSION..................................................................................................................... 12
TABLE OF AUTHORITIES Cases Com. of Ky. v. Long, 837 F.2d 727 (6th Cir. 1988) ...................................................................... 11 In re Neagle, 135 U.S. 1 (1890).................................................................................................... 11 Whitehead v. Senkowski, 943 F.2d 230 (2nd Cir. 1991) ............................................................... 11 Statutes 28 U.S. Code § 1442 ..................................................................................................................... 11
Other Authorities Ainara Tiefenthäler, Evan Hill, Drew Jordan, Malachy Browne and David Botti, Videos Show
How Federal Officers Escalated Violence in Portland, N.Y. Times (July 24, 2020)................. 3
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Anne Applebaum, Trump is Putting On a Show in Portland, The Atlantic (July 23, 2020)........ 12
Associated Press, Facing Federal Agents, Portland Protests Find New Momentum, N.Y. Times (July 21, 2020)........................................................................................................................... 10
Coleman, Justine, Trump Says He Will Send Law Enforcement, US Attorneys To Polls In November To Prevent Fraud, The Hill (August 20, 2020) ......................................................... 4
Conrad Wilson and Jonathan Levinson, Some federal forces poised to leave Portland, others could remain through election, OPB (Aug. 7, 2020) .................................................................. 3
Cory Smith, Police Work With Protesters to Build Trust in Communities of Color, NBC DallasFort Worth (Nov. 17, 2016) ........................................................................................................ 6
E. Ann Carson, Prisoners In 2018, U.S. Dep’t of Justice, Bureau of Justice Statistics (Apr. 2020) ..................................................................................................................................................... 7
Fair and Just Prosecution, Building Community Trust: Key Principles and Promising Practices in Community Prosecution and Engagement (2018) ...................................................................... 6
German Lopez, Police have to repair community trust to effectively do their job, Vox (Nov. 14, 2018)............................................................................................................................................ 6
Hearing Before the S. Comm. on the Judiciary, 114th Cong. 2 (2015) (statement of Tom Manger, Chief, Montgomery Cty., Md., Police Dep’t & President, Major Cities Chiefs Ass’n) ............. 6
International Association of Chiefs of Police, National Consensus Policy and Discussion Paper on Use of Force (Oct. 2017)........................................................................................................ 8
KGW8, Trump, Biden trade jabs about Portland, antifa, Proud Boys in first presidential debate (Sep. 30, 2020) ............................................................................................................................ 4
Kristine Hamann and Rebecca Radar Brown, Best Practices for Prosecutors: A Nationwide Movement, 33 No. 5 GPSolo 62 (2016) .................................................................................... 11
Laura Bliss and Sara Holder, Cities Sue the Trump Administration Over Federal Agents in Portland, Bloomberg (October 16, 2020) ................................................................................... 3
Laurel Wamsley, 'They Just Started Whaling On Me': Violence In Portland As U.S. Agents Clamp Down, NPR (July 20, 2020)............................................................................................. 3
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Maggie Koerth and Jamiles Lartey, De-escalation Keeps Protesters And Police Safer. Departments Respond With Force Anyway, FiveThirtyEight (June 1, 2020) ............................. 9
Marissa J. Lang, Josh Dawsey, Devlin Barrett, and Nick Miroff, Operation Diligent Valor: Trump showcases federal power in Portland, making a culture war campaign pitch, Washington Post (July 24, 2020) .............................................................................................. 12
Matt Perez, Homeland Security Secretary Says It May Deploy Federal Troops Into Portland After Protest Fatality, Forbes (Aug. 30, 2020) ........................................................................... 4
Memorandum on Reviewing Funding to State and Local Government Recipients That Are Permitting Anarchy, Violence, and Destruction in American Cities, Whitehouse.gov (September 2, 2020) .................................................................................................................... 4
Mike Baker, Thomas Fuller and Shane Goldmacher, Cities in Bind as Turmoil Spreads Far Beyond Portland, N.Y. Times (July 26, 2020).......................................................................... 10
Nina Nguyen, Trump Directs a Campaign Ad in Portland, Politico (July 25, 2020) .................. 12
President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing, Dep’t of Justice, Office of Community Oriented Policing Services (May 2015) .................................................................................................................................. 7
Rebecca Ellis, Mayor Ted Wheeler asks federal government to de-deputize Portland police, OPB (Sep. 29, 2020) ............................................................................................................................ 3
Richard Wike and Kathleen Holzwart, Where Trust is High, Crime and Corruption are Low, Pew Research Center (April 15, 2008)........................................................................................ 6
Ryan W. Miller, Portland protests: Donald Trump threatens to send federal forces back into the city; Mayor Ted Wheeler seeks new home, USA Today (Aug. 30, 2020) .................................. 4
Sarah DeGue, et al., Deaths Due to Use of Lethal Force by Law Enforcement, Am. J. of Preventive Medicine (Nov. 1, 2016) ........................................................................................... 7
Wendy Sawyer, Visualizing the racial disparities in mass incarceration, Prison Policy Initiative (July 27, 2020)............................................................................................................................. 7
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Case 1:20-cv-02040-CRC Document 25-2 Filed 10/29/20 Page 5 of 25 Zolan Kanno-Youngs, Sergio Olmos, Mike Baker and Adam Goldman, From the Start, Federal
Agents Demanded a Role in Suppressing Anti-Racism Protests, N.Y. Times (July 28, 2020)... 8
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I. INTEREST AND IDENTITY OF AMICI CURIAE Amici curiae, current and former elected prosecutors, Attorneys General and law
enforcement leaders, as well as former United States Attorneys and Department of Justice Officials, file this brief in support of Plaintiffs’ request for relief and in opposition to Defendants’ Motion to Dismiss.1 Amici are criminal justice leaders from around the nation who have extensive expertise in law enforcement, prosecution, and cooperative federal-state law enforcement activities. They are intimately familiar with the challenges of performing critical law enforcement and governance functions in communities where citizens harbor a deep distrust of the police and are vulnerable to exploitation and crime. Amici serve currently, or have served previously, as public servants in jurisdictions that understand the challenges of protecting local community needs and promoting public safety.
As amici know well, community trust and cooperation are essential to public safety. Shattered trust in law enforcement leaves the community vulnerable to harm and exploitation as people fear coming forward to cooperate with investigations and prosecutions, leading to more violence in the communities that amici are and have been charged with protecting.
Amici believe that the actions of federal law enforcement in Portland, Oregon – as well as similar deployments or threatened federal engagement in other urban areas in the country – undermine these vital law enforcement objectives. The deeply concerning and violent actions of federal agents against peaceful protesters have damaged already-fragile bonds of trust with law enforcement. This type of aggressive and unwelcome federal law enforcement intervention hinders the ability of local law enforcement and local prosecutors to keep their communities safe.
1 No party objects to the filing of this brief. No counsel for a party authored this brief in whole or in part, and no party or counsel for a party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amici curiae made a monetary contribution supporting this brief’s preparation or submission.
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It impedes elected prosecutors’ efforts to fortify trust with the communities they serve, and deprives local law enforcement and justice system leaders of the discretion necessary to determine how best to protect their communities. And in this particularly challenging moment, these actions threaten to exacerbate tensions and create further flash points in places where emotions are already running dangerously high.
For all of these reasons, and as set forth more fully below, amici have a compelling interest in this case and are deeply concerned that the deployment and conduct of federal law enforcement in Portland, Oregon – as well as actual or threatened engagement in other urban areas in the country – will undermine and erode public trust and safety. Therefore, we have come together to bring our voices, and our collective decades of experience in the criminal justice arena, to this vital issue.
A full list of amici is attached as Exhibit A. II. SUMMARY OF ARGUMENT
Following the tragic death of George Floyd in Minneapolis, members of the Portland community have taken to the streets to express their collective grief, anger, and frustration over not just one senseless act of violence, but the countless other abuses people of color have endured for years. These calls for change are focused on police violence and accountability, as well as the broader need for our nation to grapple with and redress centuries of racism and oppression that have led to mass incarceration, voter suppression, political disempowerment, economic inequality, and educational and health disparities.
The necessary healing process between local law enforcement and the people they serve must occur in communities across the country, including Portland. Yet that process has been thwarted by the recent involvement and disturbing tactics of federal law enforcement officers.
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Widespread media coverage of this federal intervention has shown agents gassing, beating, and
kidnapping peaceful protesters while wearing no badges or name tags and driving unmarked
vehicles.2 These acts are not only unconstitutional, as Plaintiffs aptly argue, but they also are
counterproductive, damage community trust, and threaten public safety in Portland and across
the nation. While the federal troops may have temporarily (and in part) retreated from Portland,3
their continued presence looms over the community. Moreover, the U.S. government
“deputized” a number of Portland police officers4 and that cross-designation of local law
enforcement continued even after local City officials withdrew their consent for the deputizing of
their local officers.5 Indeed, as one City official noted:
Federal deputation is causing concern and confusion among some community members about who is in control of the local police…. For the city to have an effective dialogue with the community about police reform, it has to be clear to the public that local elected officials have the power and authority to determine how local police will operate, without uninvited federal interference. 6
The looming threat of future and continued federal intervention and interference in
Portland perpetuates the harms inflicted on the community this summer. The President and other
2 E.g., Laurel Wamsley, 'They Just Started Whaling On Me': Violence In Portland As U.S. Agents Clamp Down, NPR (July 20, 2020), https://www.npr.org/sections/live-updates-protestsfor-racial-justice/2020/07/20/893082598/they-just-started-whaling-violence-tension-as-u-sagents-clamp-down-in-portland; Ainara Tiefenthäler, Evan Hill, Drew Jordan, Malachy Browne and David Botti, Videos Show How Federal Officers Escalated Violence in Portland, N.Y. Times (July 24, 2020), https://www.nytimes.com/video/us/100000007243995/portland-protestsfederal-government.html. 3 Conrad Wilson and Jonathan Levinson, Some federal forces poised to leave Portland, others could remain through election, OPB (Aug. 7, 2020), https://www.opb.org/article/2020/08/07/federal-officers-leave-portland-election/. 4 Rebecca Ellis, Mayor Ted Wheeler asks federal government to de-deputize Portland police, OPB (Sep. 29, 2020), https://www.opb.org/article/2020/09/30/mayor-ted-wheeler-asks-federalgovernment-to-de-deputize-portland-police/. 5 Laura Bliss and Sara Holder, Cities Sue the Trump Administration Over Federal Agents in Portland, Bloomberg (October 16, 2020), https://www.bloomberg.com/news/articles/2020-1015/cities-challenge-legality-of-federal-agents-in-cities 6 Bliss, id.
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federal officials have regularly referenced the need to renew and escalate intervention in the
city,7 and protestors, local officials, and law enforcement agencies alike know that federal troops
may reenter Portland at any moment the Administration opts to engage in a further show of
force. The harmful and abusive tactics utilized in Portland, therefore, continue to cast a cloud
over the community and those within it seeking to exercise their First Amendment rights.
In other words, Plaintiffs’ claims are not merely speculative. As outlined in depth in
Plaintiffs’ filings, Defendants’ past actions, statements about planned future actions, additional
federal deployments across the nation, and the ongoing presence of federal law enforcement in
Portland and other cities, raise serious concerns that directly impact the fundamental
constitutional rights of individuals in the many communities amici are, or have been, charged
with protecting. The claims set forth by Plaintiffs are concrete and will do lasting damage to our
nation’s system of justice if Defendants’ actions are not curtailed.
7 Ryan W. Miller, Portland protests: Donald Trump threatens to send federal forces back into the city; Mayor Ted Wheeler seeks new home, USA Today (Aug. 30, 2020), https://www.usatoday.com/story/news/nation/2020/09/01/portland-protests-donald-trumpdefends-caravan-kate-brown-plan/3453868001/; KGW8, Trump, Biden trade jabs about Portland, antifa, Proud Boys in first presidential debate (Sep. 30, 2020), https://www.kgw.com/article/news/local/protests/portland-protests-antifa-proud-boys-presidentdebate-trump-biden/283-22fe041b-dde6-45c6-8209-ca2952515bc9; Matt Perez, Homeland Security Secretary Says It May Deploy Federal Troops Into Portland After Protest Fatality, Forbes (Aug. 30, 2020), https://www.forbes.com/sites/mattperez/2020/08/30/homeland-securitysecretary-says-it-may-deploy-federal-troops-into-portland-after-protest-fatality/#59595a0e46b8. These threats of federal engagement have not been limited to addressing unrest or protecting federal property. The President recently announced plans to send law enforcement to polling places on election day and also issued a memorandum directing review of federal funding for “anarchist” cities, including Portland. See, Coleman, Justine, Trump Says He Will Send Law Enforcement, US Attorneys To Polls In November To Prevent Fraud, The Hill (August 20, 2020), https://thehill.com/homenews/administration/513048-trump-says-he-will-send-lawenforcement-us-attorneys-to-polls-in, and see also, Memorandum on Reviewing Funding to State and Local Government Recipients That Are Permitting Anarchy, Violence, and Destruction in American Cities, Whitehouse.gov (Sep. 2, 2020), https://www.whitehouse.gov/presidentialactions/memorandum-reviewing-funding-state-local-government-recipients-permitting-anarchyviolence-destruction-american-cities/.
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As a nation, we are facing a critical moment in our history. Millions in our country have taken to the streets demanding a reset of our justice system. They are seeking meaningful action to acknowledge, address, and mitigate long-standing racial inequities. And they are demanding police accountability. Our neighbors, colleagues and fellow Americans are crying out, asking us to hear them, understand them, help them heal past wounds, and find a way to move forward together. If those charged with keeping communities safe and protecting the rule of law ignore these heartfelt concerns, the resulting inaction will have a devastating impact on the integrity and credibility of our justice system. And, even worse, fanning the flames of distrust by responding with a show of force – rather than with understanding, dialogue, and de-escalation – will do lasting damage to the entire justice system. It will inhibit the ability of well-intentioned public servants and criminal justice leaders such as amici to fulfill their duty to keep communities safe.
The eyes of the nation are watching how these events play out. Amici have devoted our careers to serving our communities and we are submitting this amicus brief because we believe that these issues are far too important to stand silent. We know that working with communities and treating them with respect is integral to carrying out the mission of promoting safe, strong and healthy communities. We have also seen the damage done when law enforcement responds to those seeking to be heard with sheer force – rather than de-escalation tactics. We must respect and honor the community’s right to co-own and co-create public safety. III. ARGUMENT
A. Fortifying Community Trust Is Essential to Promoting Public Safety Public safety is inextricably tied to public trust, which in turn is rooted in perceptions of
justice and fairness. Community trust requires that people view the criminal justice system and its actors as legitimate. And as the nationwide protests against systemic racism and police
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brutality amply demonstrate, law enforcement’s legitimacy is dependent on valuing the dignity
of all human life and a commitment to fair, equitable, and accountable policing. To combat crime, police officers “need the full cooperation of victims and witnesses.”8
Police must interact with their communities in a manner that builds trust and encourages
cooperation, beginning by listening openly and honestly to the public they serve. Similarly,
prosecutors depend upon public trust to realize their mission of upholding justice and promoting
public safety for all members of the community. Indeed, “trust between the community and the prosecutor’s office is essential to maintain the office’s legitimacy and credibility.”9 Prosecutors
who engage with their communities see enhanced public confidence in the criminal justice
system, which in turn makes the public “more likely to report crimes and to cooperate as witnesses.”10
In contrast, when the public does not trust law enforcement and prosecutors, victims of crime may be less willing to come forward, report crimes, or testify in court.11 This reluctance
hampers the ability of the police and prosecutors to seek justice and promote public safety.
Decades of police brutality and racially disparate outcomes within the criminal justice
system have eroded public trust in law enforcement, especially in Black communities and other
communities of color. Racial disparities are deeply entrenched in our justice system. Black
8 Hearing Before the S. Comm. on the Judiciary, 114th Cong. 2 (2015) (statement of Tom Manger, Chief, Montgomery Cty., Md., Police Dep’t & President, Major Cities Chiefs Ass’n), https://perma.cc/SKM2-QKV9. 9 Fair and Just Prosecution, Building Community Trust: Key Principles and Promising Practices in Community Prosecution and Engagement (2018), https://fairandjustprosecution.org/wpcontent/uploads/2018/03/FJP_Brief_CommunityProsecution.pdf. 10 Id; see generally Cory Smith, Police Work With Protesters to Build Trust in Communities of Color, NBC Dallas-Fort Worth (Nov. 17, 2016), https://bit.ly/3hOXVDn; Richard Wike and Kathleen Holzwart, Where Trust is High, Crime and Corruption are Low, Pew Research Center (Apr. 15, 2008), https://pewrsr.ch/3360gpm. 11 See generally German Lopez, Police have to repair community trust to effectively do their job, Vox (Nov. 14, 2018), https://bit.ly/3jR1xGF.
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people are more likely than white people to be stopped by police, searched, arrested, and sent to
jail or prison.12 Specifically, Black and Latino adults are approximately 5.6 and 2.5 times as
likely to be incarcerated as white adults, respectively.13 Black individuals are at least 2.8 times
more likely to be killed by the police than their white counterparts.14 In sum, for “too many poor
citizens and people of color, arrest and imprisonment have become an inevitable and seemingly
unavoidable part of the American experience.”15
Sadly, the police killings of George Floyd, Breonna Taylor, Rayshard Brooks, Daniel
Prude, and Dijon Kizzee are only the most recent examples of the systemic racism inherent in
our criminal justice system. Their deaths, and the inequities that are rampant throughout each
stage of the nation’s criminal legal system, lay bare the long-standing institutionalized racism
woven into the fabric of our justice system. To move forward, law enforcement must earn the
public’s trust by pairing their words with a meaningful commitment to learn from, and partner
with, the communities they serve.16
12 See Wendy Sawyer, Visualizing the racial disparities in mass incarceration, Prison Policy Initiative (July 27, 2020), https://www.prisonpolicy.org/blog/2020/07/27/disparities/. 13 E. Ann Carson, Prisoners In 2018, U.S. Dep’t of Justice, Bureau of Justice Statistics (Apr. 2020), https://www.bjs.gov/content/pub/pdf/p18.pdf. 14 Sarah DeGue, et al., Deaths Due to Use of Lethal Force by Law Enforcement, Am. J. of Preventive Medicine (Nov. 1, 2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6080222/. 15 President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing, Dep’t of Justice, Office of Community Oriented Policing Services (May 2015), https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf at 9 (quoting Bryan Stevenson, Confronting Mass Imprisonment and Restoring Fairness to Collateral Review of Criminal Cases, 41 Harvard Civ. Rts.-Civ. Liberties L. Rev. 339 (2006)). 16 See, e.g., id. at 10 (“Research demonstrates that these principles lead to relationships in which the community trusts that officers are honest, unbiased, benevolent, and lawful. The community therefore feels obligated to follow the law and the dictates of legal authorities and is more willing to cooperate with and engage those authorities because it believes that it shares a common set of interests and values with the police.”) (citing Tom Tyler, et al., Procedural Justice and Cooperation, Encyclopedia of Criminology & Crim. Just., 4011 (2014)).
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“[L]aw enforcement cannot build community trust if it is seen as an occupying force coming in from outside to impose control on the community.”17 Yet that is exactly what federal agents have done – and these force-first interventions, undertaken by law enforcement entities that seem to have little interest in communicating with or understanding the motivations and concerns of these jurisdictions and those who reside there,18 will only serve to deepen the divide in the already fragile relationships between local law enforcement and the communities they serve.
B. Local Law Enforcement Must Guide The Response To Community Unrest Through De-Escalation, Wherever Possible, And By Calling On Years Of RelationshipBuilding With Their Own Local Community When police encounter protestors who are angry and frustrated, every effort should be
made to “stabilize the situation and reduce the immediacy of the threat so that more time, options, and resources can be called upon to resolve the situation without the use of force or with a reduction in the force necessary.”19 There are a wide range of techniques to diffuse situations and reduce the use of force or violence. Some of these include speaking calmly, positioning oneself in a non-threatening manner, establishing a rapport, issuing warnings, and moving locations to lessen the level of confrontation or danger.20 All of these responses are predicated on
17 President’s Task Force on 21st Century Policing, supra note 15 at 1. 18 See Zolan Kanno-Youngs, Sergio Olmos, Mike Baker and Adam Goldman, From the Start, Federal Agents Demanded a Role in Suppressing Anti-Racism Protests, N.Y. Times (July 28, 2020), https://www.nytimes.com/2020/07/28/us/federal-agents-portland-seattle-protests.html. 19 International Association of Chiefs of Police, National Consensus Policy and Discussion Paper on Use of Force (Oct. 2017), https://www.theiacp.org/sites/default/files/all/no/National_Consensus_Policy_On_Use_Of_Force.pdf. 20 Id.
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the well-settled value of de-escalation as the preferred response in situations where emotions are running high.
On the other hand, extensive research into interactions between protestors and the police reveals that, “when the police respond by escalating force – wearing riot gear from the start, or using tear gas on protesters – it doesn’t work. In fact, disproportionate police force is one of the things that can make a peaceful protest not so peaceful.”21 Unidentified federal officers coming into local jurisdictions with a show of force – and indeed without being solicited by the jurisdiction’s elected leaders – necessarily exacerbates tensions, rather than de-escalating them.
Also problematic are the repeated images reflecting federal forces deployed to Portland – some of whom were members of paramilitary units of the U.S. Border Patrol – wearing militarytype uniforms and armaments, operating pursuant to undefined policies with virtually nonexistent supervision, and having little or no training on how to manage civilian crowds. Given this starting point, it is not surprising that these federal officers resorted to excessive and unconstitutional use of force in an effort to control the situation. Further, it should be noted that insufficiently trained and uncontrolled law enforcement personnel are a danger not simply to members of the community, but also to their fellow officers.
Equally concerning, these unidentified federal agents have been engaging in practices that enable them to evade accountability for their misdeeds and abuses. While local police departments and prosecutors can and must take meaningful steps to ensure that officer misconduct and excessive force in their own communities are addressed, they can do very little with respect to federal agents in their jurisdictions who appear to be intentionally seeking to
21 Maggie Koerth and Jamiles Lartey, De-escalation Keeps Protesters And Police Safer. Departments Respond With Force Anyway, FiveThirtyEight (June 1, 2020), https://fivethirtyeight.com/features/de-escalation-keeps-protesters-and-police-safer-heres-whydepartments-respond-with-force-anyway/.
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avoid identification. It is unclear who is commanding and overseeing these agents and they are, in all the ways that matter to accountability, a foreign presence difficult for local officials to control.
The disturbing consequences of this scenario have been playing out in Portland,22 and across the country,23 where protests have surged, rather than dissipated, in response to these federal troops and tactics. The presence of federal agents only exacerbates anger, resentment, and tensions at a moment when a return to calm is what is needed most.
It is not only the disturbing actions of these federal troops that undermine public safety. As an outside entity with no connection to the community, these federal agents are incapable of facilitating or promoting the healing process. Local law enforcement must reckon with racial injustice and police violence in their own communities – and be accountable for it. Local leaders, like amici, have established relationships with the communities they serve, based on shared history, knowledge, and understanding, and they interact with members of their communities every single day. The lack of any understanding of local dynamics and community relationships renders federal law enforcement ill-equipped to play any meaningful role in this healing process.
C. Amici Have a Duty to Protect Their Local Communities, Including Against Federal Authorities Amici have a vital interest in this case because it implicates their duties as criminal justice
leaders, past and present, to protect members of their communities from harm, assault and infringement of their rights by any and all perpetrators, including federal agents. Protecting the
22 Associated Press, Facing Federal Agents, Portland Protests Find New Momentum, N.Y. Times (July 21, 2020), https://www.nytimes.com/aponline/2020/07/21/us/ap-us-racial-injusticeportland.html?searchResultPosition=15. 23 Mike Baker, Thomas Fuller and Shane Goldmacher, Cities in Bind as Turmoil Spreads Far Beyond Portland, N.Y. Times (July 26, 2020), https://www.nytimes.com/2020/07/26/us/protestsportland-seattle-trump.html?searchResultPosition=17.
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community and stepping in when individuals are victimized and the rule of law is undermined is the essence of what prosecutors are expected and elected to do. “A prosecutor’s core mission is and has always been to promote justice and to protect the community by ensuring public safety.”24 Amici prosecutors would be derelict in our duties if we did not speak out and take action when federal agents pose a clear threat to the safety of our communities.
While local prosecutors’ ability to pursue charges against federal officials may be limited by 28 U.S. Code § 1442, they are not powerless to act and, indeed, have a responsibility to criminally prosecute federal law enforcement agents where the evidence shows that these actors engaged in activities that harmed residents amici are sworn to protect – whether that harm is in the form of excessive use of force, illegal detention or arrest, or other violations of rights. See In re Neagle, 135 U.S. 1 (1890) (recognizing a state criminal prosecution against a federal official could proceed if the official cannot show that they were “authorized to [act in that manner] ... by the law of the United States” and did “no more than what was necessary and proper to do so”); Whitehead v. Senkowski, 943 F.2d 230 (2d Cir. 1991) (courts must walk “the fine line” between federal immunity and the “obligation to avoid granting a license to federal officials to flout state laws with impunity”). After all, “the Supremacy Clause was not intended to be a shield for ‘anything goes’ conduct by federal law enforcement officers.” Com. of Ky. v. Long, 837 F.2d 727, 746 (6th Cir. 1988).
State prosecutions of federal officials are rare, likely in part because they are so resource intensive. Where, as here, federal agents have shielded themselves from identification,
24 See Kristine Hamann and Rebecca Radar Brown, Best Practices for Prosecutors: A Nationwide Movement, 33 No. 5 GPSolo 62 (2016), https://pceinc.org/wpcontent/uploads/2019/11/2016September-Best-Practices-for-Prosecutors-A-NationwideMovement-GP-Solo-ABA-Journal.pdf.
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investigation, and prosecution, it is even more challenging to ensure that they are brought to justice. And pursuing accountability for these offenses, especially with these added challenges, will divert resources away from addressing local crimes.
For all of these reasons, amici feel compelled to bring their voices to this case. If these tactics are permitted to continue unaddressed, they will not simply prevent leaders such as amici from protecting their communities, but will also undermine the integrity of a system of justice that exists to keep us all safe from misconduct, use of force, violations of rights we hold dear, and abuse – whether by law enforcement or anyone else. IV. CONCLUSION
The deployment of aggressive and militarized federal troops to stifle protests – and in particular, federal troops without identification, in unmarked vehicles, and using techniques better suited for a war zone – is of great concern to amici, and the last thing our communities need in this time of turmoil and upset. Those who have ordered these federal deployments have no apparent regard for what actually works and are acting with little concern for the actual safety of the communities they occupy. Instead, the spectacle of forcible conflict, through which the humanity of protestors and the legitimacy of their pain and upset is denied and silenced through a show of force, appears to be an end in itself.25
As amici, we reject this starting point. We have been and are committed to protecting our communities, and we do not take that responsibility lightly. To do so, however, we need to be
25 See generally Anne Applebaum, Trump is Putting On a Show in Portland, The Atlantic (July 23, 2020), https://bit.ly/2X84FUO; Marissa J. Lang, Josh Dawsey, Devlin Barrett, and Nick Miroff, Operation Diligent Valor: Trump showcases federal power in Portland, making a culture war campaign pitch, Washington Post (July 24, 2020), https://wapo.st/2EoEDGq; Nina Nguyen, Trump Directs a Campaign Ad in Portland, Politico (July 25, 2020), https://politi.co/39Co05P.
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able to heal divisions between local law enforcement and our aggrieved residents without the

federal government undermining or directly combatting our efforts.

For all of these reasons, we respectfully request that this Court order an end to these

deeply concerning tactics and allow our communities to begin to heal by granting Plaintiffs’

requested relief and denying the Defendants’ Motion to Dismiss.

Dated: October 29, 2020

Respectfully submitted,

/s/ Loren Kieve

Loren Kieve (D.C. Bar No. 196436)

KIEVE LAW OFFICES

2655 Steiner Street San Francisco, California 94115 (415) 364-0060 lk@kievelaw.com

Counsel for Amici Curiae

13

Case 1:20-cv-02040-CRC Document 25-2 Filed 10/29/20 Page 19 of 25
EXHIBIT A

Case 1:20-cv-02040-CRC Document 25-2 Filed 10/29/20 Page 20 of 25
List of Amici
Chiraag Bains Former Trial Attorney, Criminal Section, Civil Rights Division, U.S. Department of Justice Former Senior Counsel to the Assistant Attorney General, Civil Rights Division, U.S. Department of Justice
Paul Bardacke Former Attorney General, New Mexico
Diana Becton District Attorney, Contra Costa County, California
Wesley Bell Prosecuting Attorney, St. Louis County, Missouri
Buta Biberaj Commonwealth’s Attorney, Loudoun County, Virginia
Sherry Boston District Attorney, DeKalb County, Georgia
Chesa Boudin District Attorney, City and County of San Francisco, California
Joseph Brann Former Chief, Hayward Police Department, California Former Director, Office of Community Oriented Policing Services, U.S. Department of Justice
Aisha Braveboy State’s Attorney, Prince George’s County, Maryland
Kenyen Brown Former U.S. Attorney, Southern District of Alabama
Jim Bueermann Former Chief, Redlands Police Department, California
John Choi County Attorney, Ramsey County, Minnesota
Jerry L. Clayton Sheriff, Washtenaw County, Michigan
Dave Clegg District Attorney, Ulster County, New York

Case 1:20-cv-02040-CRC Document 25-2 Filed 10/29/20 Page 21 of 25
Shameca Collins District Attorney, 6th Judicial District, Mississippi
Scott Colom District Attorney, 16th Judicial District, Mississippi
Brendan Cox Former Chief, Albany Police Department, New York Director of Policing Strategies, LEAD National Support Bureau
John Creuzot District Attorney, Dallas County, Texas
Ronald L. Davis Former Director, Office of Community Oriented Policing Services, U.S. Department of Justice Former Chief, East Palo Alto Police Department, California Former Chief, Oakland Police Department, California
Satana Deberry District Attorney, Durham County, North Carolina
Parisa Dehghani-Tafti Commonwealth’s Attorney, Arlington County and the City of Falls Church, Virginia
Brandon del Pozo Former Chief, Burlington Police Department, Vermont
Drew Diamond Former Chief, Tulsa Police Department, Oklahoma
Thomas J. Donovan, Jr. Attorney General, Vermont
Michael Dougherty District Attorney, 20th Judicial District, Colorado
Mark Dupree District Attorney, Wyandotte County, Kansas
Keith Ellison Attorney General, Minnesota
Robert W. Ferguson Attorney General, Washington
Kimberly M. Foxx State’s Attorney, Cook County, Illinois

Case 1:20-cv-02040-CRC Document 25-2 Filed 10/29/20 Page 22 of 25
Brian E. Frosh Attorney General, Maryland
Douglas Gansler Former Attorney General, Maryland Former State’s Attorney, Montgomery County, Maryland
Gil Garcetti Former District Attorney, Los Angeles County, California
Kimberly Gardner Circuit Attorney, City of St. Louis, Missouri
Sarah F. George State’s Attorney, Chittenden County, Vermont
Joe Gonzales District Attorney, Bexar County, Texas
Eric Gonzalez District Attorney, Kings County, New York
Mark Gonzalez District Attorney, Nueces County, Texas
Andrea Harrington District Attorney, Berkshire County, Massachusetts
Scott Harshbarger Former Attorney General, Massachusetts
Jim Hingeley Commonwealth’s Attorney, Albemarle County, Virginia
John Hummel District Attorney, Deschutes County, Oregon
Susan Hutson Former Chief Prosecutor, City of Corpus Christi, Texas President, National Association for Civilian Oversight of Law Enforcement
Natasha Irving District Attorney, 6th Prosecutorial District, Maine
Michael Jackson District Attorney, Dallas County, Alabama

Case 1:20-cv-02040-CRC Document 25-2 Filed 10/29/20 Page 23 of 25
Kathleen Jennings Attorney General, Delaware
Justin F. Kollar Prosecuting Attorney, Kauai County, Hawaii
Lawrence S. Krasner District Attorney, Philadelphia, Pennsylvania
Miriam Aroni Krinsky Former Assistant U.S. Attorney, Criminal Appellate Chief, and General Crimes Chief, Central District of California Former Chair, Solicitor General’s Criminal Appellate Advisory Group
William Lansdowne Former Chief, San Diego Police Department, California Former Chief, San Jose Police Department, California Former Chief, Richmond Police Department, California
Patricia Madrid Former Attorney General, New Mexico
Garry McFadden Sheriff, Mecklenburg County, North Carolina
Brian Middleton District Attorney, Fort Bend County, Texas
Stephanie Morales Commonwealth’s Attorney, Portsmouth, Virginia
Marilyn J. Mosby State’s Attorney, Baltimore City, Maryland
Jerome O’Neill Former Acting U.S. Attorney, District of Vermont
Jody Owens District Attorney, Hinds County, Mississippi
Jim Petro Former Attorney General, Ohio
Channing Phillips Former U.S. Attorney, District of Columbia Former Counsel to the Attorney General, U.S. Department of Justice

Case 1:20-cv-02040-CRC Document 25-2 Filed 10/29/20 Page 24 of 25
Bryan Porter Commonwealth’s Attorney, City of Alexandria, Virginia
Abdul Pridgen Chief, Seaside Police Department, California
Karl A. Racine Attorney General, District of Columbia
Kwame Raoul Attorney General, Illinois
Ira Reiner Former District Attorney, Los Angeles County, California Former City Attorney, Los Angeles, California
Rachael Rollins District Attorney, Suffolk County, Massachusetts
Ellen Rosenblum Attorney General, Oregon
Stephen Rosenthal Former Attorney General, Virginia
Marian T. Ryan District Attorney, Middlesex County, Massachusetts
Dan Satterberg Prosecuting Attorney, King County, Washington
Mike Schmidt District Attorney, Multnomah County, Oregon
Ronal Serpas Former Superintendent, New Orleans Police Department, Louisiana Former Chief, Metropolitan Nashville Police Department, Tennessee Former Chief, Washington State Patrol
Daniella Shorter District Attorney, 22nd Judicial District, Mississippi
Carol A. Siemon Prosecuting Attorney, Ingham County, Michigan
Norm Stamper Former Chief, Seattle Police Department, Washington

Case 1:20-cv-02040-CRC Document 25-2 Filed 10/29/20 Page 25 of 25
David E. Sullivan District Attorney, Northwestern District, Massachusetts
Shannon Taylor Commonwealth’s Attorney, Henrico County, Virginia
Raúl Torrez District Attorney, Bernalillo County, New Mexico
Gregory Underwood Commonwealth’s Attorney, City of Norfolk, Virginia
Matthew Van Houten District Attorney, Tompkins County, New York
Andrew Warren District Attorney, 13th Judicial Circuit, Florida
Lynneice Washington District Attorney, Jefferson County, Bessemer Division, Alabama

 
 Case 1:20-cv-02040-CRC Document 26 Filed 10/29/20 Page 1 of 54

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DON’T SHOOT PORTLAND et al.,

Plaintiffs, v.

Civil Action No. 1:20-cv-02040-CRC

CHAD F. WOLF, in his official capacity as purported Acting Secretary of Homeland Security, et al.,

Defendants.

PLAINTIFFS’ BRIEF IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Case 1:20-cv-02040-CRC Document 26 Filed 10/29/20 Page 2 of 54
TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 3 STANDARD OF REVIEW ............................................................................................................ 8 ARGUMENT.................................................................................................................................. 8 I. Don’t Shoot Portland and the Individual Plaintiffs all have standing. ............................... 9
A. The Individual Plaintiffs have standing to sue...................................................... 10 B. Organizational Plaintiff Don’t Shoot Portland has standing to sue. ................... 14 II. The challenged Policy is reviewable agency action under the APA. ............................... 16 A. Plaintiffs have adequately alleged the existence of the Policy, and facts
must be construed in Plaintiffs’ favor................................................................... 16 B. The Policy is reviewable final agency action under APA § 704........................... 19 III. Plaintiffs have stated nine claims for which relief may be granted. ................................. 23 A. The alleged Policy violates the APA because it has no statutory basis and
is not justified by 40 U.S.C. § 1315....................................................................... 23 B. The Policy violates the First Amendment. ............................................................ 26 C. The Policy violates the Fourth and Fifth Amendments......................................... 31 D. The Policy is null and void because Defendant Wolf cannot lawfully act as
DHS’s secretary. ................................................................................................... 32 CONCLUSION............................................................................................................................. 45
i

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TABLE OF AUTHORITIES CASES Abay v. City of Denver, 445 F.Supp.3d 1286 (D. Colo. 2020) ......................................................33 Alfifi v. Lynch, 101 F.Supp.3d, 90 (D.D.C. 2015). ........................................................................21 Am. Anti-Vivisection Soc’y v. USDA, 946 F.3d 615 (D.C. Cir. 2020) ...........................................10 Am. Farm Bureau v. U.S. EPA, 121 F.Supp.2d 84 (D.D.C. 2000) ....................................16, 17, 19 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................8, 18 Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289 (1979) ..............................................13 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ..........................................................................16 Bell v. Hood, 327 U.S. 678 (1946)...................................................................................................9 Bennett v. Spear, 520 U.S. 154 (1997) ....................................................................................20, 22 Black Lives Matter Seattle-King Cnty. v. City of Seattle, Seattle Police Dep’t, No. 2:20-
CV-00887-RAJ, 2020 WL 3128299 (W.D. Wash. June 12, 2020) ...................................30, 33 Buck v. City of Albuquerque, No. CV 04-1000, JP/DJS, 2007 WL 9734037 (D.N.M. Apr.
11, 2007) ..................................................................................................................................30 Burson v. Freeman, 504 U.S. 191 (1992) ......................................................................................28 California v. Hodari D., 499 U.S. 621 (1991)...............................................................................31 Calvary Chapel Dayton Valley v. Sisolak, 140 S.Ct. 2603 (2020) ................................................26 Camfield v. United States, 167 U.S. 518 (1897)............................................................................24 Carter v. District of Columbia, 795 F.2d 116 (D.C. Cir.1986) .....................................................16 CASA de Maryland, Inc. v. Wolf, No. 20-cv-2118, 2020 WL 5500165 (D. Md. Sept. 11,
2020) ........................................................................................................................................38 Citizens for Responsibility & Ethics in Wash. v. FEC, 243 F.Supp.3d 91 (D.D.C. 2017) ............16 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) .........................................................................13 Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984) ............................................27, 28 Cnty. of Los Angeles v. Davis, 440 U.S. 625 (1979)......................................................................11
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Cnty. of Sacramento v. Lewis, 523 U.S. 833 (1998)......................................................................32 Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001).........................................................................9 CREW v. U.S. Dep’t of Justice, 436 F.Supp.3d 354 (D.D.C. 2020) ................................................8 Dearth v. Holder, 641 F.3d 499 (D.C. Cir. 2011)..........................................................................12 Doe v. Dist. of Columbia, 796 F.3d 96 (D.C. Cir. 2015) ...............................................................30 Don’t Shoot Portland v. City of Portland, No. 3:20-CV-00917-HZ, 2020 WL 3078329
(D. Or. June 9, 2020) ...............................................................................................................33 Edmond v. United States, 520 U.S. 651 (1997) .............................................................................43 Edrei v. Maguire, 892 F.3d 525 (2d Cir. 2018) .............................................................................29 Elec. Priv. Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 878 F.3d
371 (D.C. Cir. 2017) ................................................................................................................14 Emergency Coal. to Def. Educ. Travel v. U.S. Dep’t of Treasury, 545 F.3d 4 (D.C. Cir.
2008) ........................................................................................................................................12 Erby v. United States, 424 F.Supp.2d 180 (D.D.C. 2006) ...............................................................8 Ex parte Young, 209 U.S. 123 (1908)..............................................................................................9 FEC v. Wis. Right To Life, Inc., 551 U.S. 449 (2007) ...................................................................11 Flores v. District of Columbia, 437 F.Supp.2d 22 (D.D.C. 2006)...................................................8 Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir. 2008) ...................................................................22 Fraternal Order of Police, D.C. v. Rubin, 26 F.Supp.2d 133 (D.D.C. 1998) ...............................13 Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477 (2010)........................................9 Haase v. Sessions, 835 F.2d 902 (D.C. Cir. 1987) ........................................................................18 Harrell v. The Fla. Bar, 608 F.3d 1241 (11th Cir. 2010) ..............................................................12 Hartman v. Moore, 547 U.S. 250 (2006).......................................................................................30 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) ..........................................................14, 16 Humane Soc'y of U.S. v. USPS, 609 F.Supp.2d 85 (D.D.C. 2009)................................................22 Hurd v. D.C., Gov’t, 864 F.3d 671 (D.C. Cir. 2017) .....................................................................25
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Immigrant Legal Res. Ctr. v. Wolf, No. 20-cv-5883, 2020 WL 5798269 (N.D. Cal. Sept. 29, 2020) ............................................................................................................................38, 44
In re Grand Jury Investigation, 916 F.3d 1047 (D.C. Cir. 2019)............................................36, 37 In re Navy Chaplaincy, 170 F.Supp.3d 21 (D.D.C. 2016).................................................16, 18, 19 In re Navy Chaplaincy, 323 F.Supp.3d 25 (D.D.C. 2018).............................................................19 In re Navy Chaplaincy, 697 F.3d 1171 (D.C. Cir. 2012).........................................................10, 19 Index Newspapers LLC v. City of Portland, No. 20-cv-1035, 2020 WL 4883017 (D. Or.
Aug. 20, 2020) .........................................................................................................................11 Kleppe v. New Mexico, 426 U.S. 529 (1976).................................................................................24 L.M.-M. v. Cuccinelli, 442 F.Supp.3d 1 (D.D.C. 2020)...........................................................34, 46 La Clínica de La Raza v. Trump, No. 19-cv-4980, 2020 WL 4569462 (N.D. Cal. Aug. 7,
2020) ........................................................................................................................................38 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ......................................................................10, 13 Martin v. Malhoyt, 830 F.2d 237 (D.C. Cir. 1987)........................................................................16 Marbet v. City of Portland, No. CV 02-1448-HA, 2003 WL 23540258 (D. Or. Sept. 8,
2003) ........................................................................................................................................27 McCullen v. Coakley, 573 U.S. 464 (2014) ...................................................................................27 Minn. Voters All. v. Mansky, 138 S.Ct. 1876 (2018) ...............................................................28, 25 Morales v. Fry, 873 F.3d 817 (9th Cir. 2017)................................................................................32 Morrison v. Olson, 487 U.S. 654 (1988) .......................................................................................43 NB ex rel. Peacock v. Dist. of Columbia, 682 F.3d 77 (D.C. Cir. 2012) .......................9, 11, 12, 13 Nieves v. Bartlett, 139 S.Ct. 1715 (2019) ......................................................................................30 NLRB v. S.W. Gen., Inc., 137 S. Ct. 929 (2017) (Thomas, J. concurring)...............................43, 45 Nucor Steel-Ark. v. Pruitt, 246 F.Supp.3d 288, 304 (D.D.C. 2017) ..............................................12 Nw. Immigrant Rights Project v. USCIS, No. 19-3283, 2020 WL 5995206 (D.D.C. Oct. 8,
2020) ............................................................................................................................35, 36, 37 O’Shea v. Littleton, 414 U.S. 488 (1974) ......................................................................................13
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OCONUS DOD Emp. Rotation Action Grp. v. Cohen, 140 F Supp. 2d 37 (D.D.C. 2001) ...........19 OCONUS DOD Employee Rotation Action Grp. v. Cohen, 144 F.Supp.2d 1 (D.D.C.
2000) ..................................................................................................................................18, 19 PDK Labs, Inc. v. Ashcroft, 338 F.Supp.2d 1 (D.D.C. 2004)........................................................23 Pa. R. Co. v. Dillon, 335 F.2d 292 (D.C. Cir. 1964) .....................................................................22 People for the Ethical Treatment of Animals v. USDA, 797 F.3d 1087 (D.C. Cir. 2015) .............14 Phelps-Roper v. City of Manchester, 697 F.3d 678 (8th Cir. 2012) ..............................................13 Quraishi v. St. Charles Cnty., No. 4:16-CV-1320 NAB, 2019 WL 2423321 (E.D. Mo.
June 10, 2019)..........................................................................................................................32 Reed v. Town of Gilbert, 576 U.S. 155 (2015) ..............................................................................28 Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety Comm’n, 324 F.3d 726, 731-
32 (D.C. Cir. 2003) ..................................................................................................................21 Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47 (2006) ............................10 Scahill v. Dist. of Columbia, 909 F.3d 1177 (D.C. Cir. 2018).................................................30, 31 Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357 (1997) ................................................28 Screws v. United States, 325 U.S. 91 (1945) (plurality opinion)...................................................24 Seeger v. U.S. Dep’t of Def., 306 F.Supp.3d 265 (D.D.C. 2018) ............................................20, 22 Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) .................................................................................10 Snyder v. Phelps, 562 U.S. 443 (2011) ..........................................................................................30 Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016) ..............................................................................10 SW General, Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015).............................................................47 Tenacre Found v. I.N.S., 78 F.3d 693 (D.C. Cir. 1996).................................................................16 Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 139 S.Ct. 2449 (2019) .....................................42 Texas v. Johnson, 491 U.S. 397 (1989) .........................................................................................29 Tooley v. Napolitano, 556 F.3d 836 (D.C. Cir. 2009) .....................................................................9 United Presbyterian Church v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984) (Scalia, J.) ............13, 14
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United States v. Delaney, 955 F.3d 1077 (D.C. Cir. 2020) ...........................................................31 United States v. Eaton, 169 U.S. 331 (1898) .................................................................................43 United States v. Evans, 581 F.3d 333 (6th Cir. 2009) ...................................................................25 United States v. Lopez, 514 U.S. 549 (1995) .................................................................................24 United States v. Morrison, 529 U.S. 598 (2000) ...........................................................................24 United States v. Smith, 962 F.3d 755 (4th Cir. 2020) ....................................................................42 United States v. W.T. Grant, 345 U.S. 629 (1953) ........................................................................11 United States v. Zagorovskaya, No. CR 13-583 PA, 2014 WL 12665158 (C.D. Cal. Oct.
8, 2014), aff’d on other grounds, 628 F. App’x 503 (9th Cir. 2015).......................................25 Ward v. Rock Against Racism, 491 U.S. 781 (1989) .....................................................................27 Wash. Mobilization Comm. v. Cullinane, 566 F.2d 107 (D.C. Cir. 1977).....................................32 Weiss v. United States, 510 U.S. 163 (1994) (Souter, J., concurring) ...........................................44 Worth v. Jackson, 451 F.3d 854 (D.C. Cir. 2006) .........................................................................10 Young v. City of Los Angeles, 655 F.3d 1156 (9th Cir. 2011) .......................................................32 Young v. U.S. Dep’t of Labor, No. CV 17-2428 (JDB), 2020 WL 1557170 (D.D.C. Apr.
1, 2020) ..............................................................................................................................18, 22 STATUTES & RULES 5 U.S.C. § 702................................................................................................................................20 5 U.S.C. § 704................................................................................................................................20 5 U.S.C. § 706......................................................................................................................9, 19, 26 5 U.S.C. § 3345........................................................................................................................34, 46 5 U.S.C. § 3346..................................................................................................................42, 45, 46 5 U.S.C. § 3347............................................................................................................34, 35, 36, 40 5 U.S.C. § 5546..............................................................................................................................42 5 U.S.C. § 5548..............................................................................................................................46 5 U.S.C. § 5549..............................................................................................................................44
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6 U.S.C. § 113........................................................................................................34, 35, 36, 40, 42 28 U.S.C. § 508..............................................................................................................................37 40 U.S.C. § 1315................................................................................................1, 23, 24, 25, 26, 46 Fed. R. Civ. P. 8.............................................................................................................................16 Fed. R. Civ. P. 12................................................................................................................... passim Fed. R. Evid. 201 .............................................................................................................7, 8, 24, 25 OTHER AUTHORITIES Chad Wolf (DHS_Wolf), Twitter (Oct. 18, 2020 10:43 AM), https://twitter.com/DHS_Wolf/status/1317884109964910592
....................................................................................................................................................8 Executive Order 13753 ................................................................................................38, 39, 41, 45 Executive Order 13933 ............................................................................................................4, 5, 6 Press Release, DHS, “Acting Secretary Wolf Condemns the Rampant Long-Lasting
Violence in Portland” (July 16, 2020), available at https://www.dhs.gov/news/2020/07/16/acting-secretary-wolf-condemns-rampantlong-lasting-violence-portland ...................................................................................................7 Press Release, Dep’t of Homeland Sec., DHS Announces New Task Force to Protect American Monuments, Memorials, and Statues (July 1, 2020), https://perma.cc/2DYE-FTE4 ...........................................................................................17, 25 S. Rep. No. 105-250 (1998) ...........................................................................................................45 Steve Vladeck & Benjamin Wittes, DHS Authorizes Domestic Surveillance to Protect Statues and Monuments, Lawfare (July 20, 2020), https://perma.cc/96CB-RVTV ................25 U.S. Const., amend. IV ..................................................................................................................31 U.S. Const. art. II, § 2, cl. 2 .....................................................................................................33, 34 U.S. Const., art. IV, § 3, cl. iv........................................................................................................24 U.S. Gov’t Accountability Office, B-331650, Legality of Service of Acting Secretary of Homeland Security and Service of Senior Official Performing the Duties of Deputy Secretary of Homeland Security (Aug. 14, 2020), https://perma.cc/NBR5-2S3D ..................36
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INTRODUCTION There is no general federal police power, and federal law enforcement may not be used to crack down on lawful speech and assembly that the President dislikes. Lacking autocratic powers, the President and Defendants have attempted to manufacture a legal means to do what the Constitution and federal law prohibit: Defendants have instituted a Policy to quell and punish the lawful speech and assembly of those advocating a particular viewpoint under the banner of federal property protection. This summer the Policy was implemented in brutal fashion in Portland, Oregon, where Defendants dispatched at least 114 federal agents in military fatigues under the label of “Operation Diligent Valor.” Since late July, these federal agents have fired tear gas and rubber bullets at protesters. Defendants used reports of minor damage to federal property as pretext to implement the Policy and escalate events with armed force, even where force was used far from federal property. It should be no surprise that when Defendants deescalate their presence, the tenor of the protests calms, too. Defendants are causing violence, not protecting against it. Plaintiffs – a diverse group of women and organizations engaged in peaceful First Amendment activity – filed this action on July 27, 2020, in the midst of Defendants’ most aggressive tactics in Portland.1 The Complaint seeks to enjoin Defendants from continuing to implement the Policy of deterring and intimidating protesters who are advocating for the Black Lives Matter (“BLM”) movement and against the current Administration. The Complaint alleges three categories of claims: First, the Policy exceeds the Department of Homeland Security
1 Plaintiff Wall of Moms was an unincorporated association that Plaintiffs’ counsel is informed no longer exists. A separate non-profit entity has been incorporated with the same name, but is not a party to this case. For that reason, Plaintiffs do not oppose Wall of Moms’ dismissal, though they reject all of Defendants’ arguments for Wall of Moms’ dismissal. The voluntary dismissal of Wall of Moms does not affect Plaintiff Barnum’s standing.
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(“DHS”) Defendants’ statutory authority under 40 U.S.C. § 1315. Consistent with federalism limitations inherent in the Constitution’s Property Clause, Congress has provided DHS with narrow and carefully circumscribed authority to protect federal property, including federal courthouses. That authority may not be exercised except as necessary to accomplish its limited purpose. Defendants’ Policy has no rational relation to this purpose, because the Policy is not aimed at protecting federal property; its purpose is to quell and punish protesters with whom Defendants and the President disagree.
Second, the Complaint alleges the Policy violates the First, Fourth, and Fifth Amendments. In violation of the First Amendment, Defendants have sought to quell protests because of the protesters’ viewpoints and expression of their First Amendment rights. No such “Operation” has been launched against protesters conveying messages that the President approves, such as the armed protesters who occupied government property to oppose coronavirus lockdown measures in various states. In violation of the Fourth and Fifth Amendments, Defendants have approved and directed arbitrary, unreasonable, and unnecessary seizures through a Policy that embraces indiscriminately firing tear-gas canisters and rubber bullets into crowds – regardless of whether they pose a threat to federal property – and arresting individuals based on association or mere presence.
Third, Defendant Chad Wolf lacked authority to issue the Policy because he does not lawfully occupy the position of Acting Secretary. His predecessor was improperly appointed and lacked authority to alter the DHS succession hierarchy on which Wolf’s authority depends.
The grounds on which Defendants have moved to dismiss the Complaint lack merit. Defendants argue Plaintiffs lack standing, but each Plaintiffs stands to suffer injury if the Policy remains in force. Defendants also contend the alleged Policy does not exist, or is not final. But
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those are quintessential factual disputes that cannot be adjudicated in this motion. Last, Defendants argue Plaintiffs have failed to state a claim in their three groups of legal claims. But each claim is sound, and none may be dismissed as a matter of law on the pleadings. Defendants’ Motion to Dismiss should be denied.
BACKGROUND Plaintiffs filed this lawsuit to vindicate their right to protest in support of Black lives and against white supremacy. The Complaint details how Defendants, pursuant to a policy purporting to protect federal property, have made every effort to “quell” the protests, in violation of the law. After the police killing of George Floyd on May 25, 2020, Portland organizers began to mobilize protests in support of BLM, a movement of people from all backgrounds coming together to affirm the dignity of Black persons and to demand an end to police brutality and systemic racism. See Compl. ¶¶ 1-2, 34, July 27, 2017, ECF No. 1. Over the recent months, Plaintiffs have been leading, participating in, and standing in solidarity with these historic lawful protests. Id. ¶¶ 34-51. Plaintiff Don’t Shoot Portland, which advocates for accountability to create social change, plays a crucial role in supporting protesters exercising their rights. Id. ¶¶ 34-38. Its core mission is to provide “mutual aid” to individuals wishing to exercise their First Amendment rights to organize, protest, and create art for social change. Id. ¶ 36. Don’t Shoot Portland has distributed supplies to allow protesters to express their views as safely as possible amid a global pandemic. Id. ¶ 37. Plaintiffs Demetria Hester and Danialle James are Black mothers who have been organizing and peacefully participating in BLM protests in Portland at least since George Floyd’s murder. Id. ¶¶ 49-50. They are protesting for the victims of police brutality, to rebuild the Black community, and to ensure that Black children can walk down the street freely, without
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worrying about someone killing them because of their skin color. Id. Plaintiff Sabrina Cerquera is a 22-year-old Brown woman who has peacefully joined at least ten demonstrations since late May to stand up to end police brutality and white supremacy. Id. ¶ 48. Plaintiff Beverley Barnum organized a group of mothers in support of the BLM protesters, under the banner of “Wall of Moms.” Id. ¶ 42. Ms. Barnum stood with these patriotic mothers in a row, linked arm in arm, wearing plain clothing and imploring the federal agents clad in military fatigues to “Leave the kids alone!” Id. ¶ 44-45. Finally, Plaintiff Lisa Kipersztok is a family physician whose right to peacefully protest has been chilled by the actions of federal law enforcement in Portland because she fears that she can now only attend demonstrations at serious risk of debilitating injury as a result of Defendants’ Policy. Id. ¶ 51.
Plaintiffs’ harms stem from an unlawful policy Defendants instituted to quell and chill protesters’ lawful First Amendment activity because of their views and beliefs. Id. ¶¶ 52, 80. To quell Plaintiffs’ protected speech, Defendants have used surveillance; militarized and unidentified forces; excessive deployment of indiscriminate weapons such as tear gas, pepperspray balls, and other less-lethal munitions; and warrantless arrests or custodial detentions without probable cause. Id.
This Policy reflects President Trump’s desire to create a federal police force to “take over” progressive American cities he politically disfavors. Id. ¶¶ 53-60, 71. On June 26, the President signed Executive Order 13,933, “Protecting American Monuments, Memorials, and Statues and Combating Recent Criminal Violence,” purporting to respond to “[s]tate and local public officials’ abdication of their law enforcement responsibilities” with respect to the civil rights protests in Portland and across the nation. Id. ¶ 72.
In response to the executive order, the Department of Homeland Security established a
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“Protecting American Communities Task Force (PACT)” to “conduct ongoing assessments of potential civil unrest or destruction and allocate resources to protect people and property.” Compl. ¶ 73. Pursuant to Defendants’ Policy, beginning on or around July 4, federal agents were deployed to Portland for the stated purpose of protecting federal property. Id. ¶¶ 75-81. But the way in which the agents were deployed demonstrates that the purpose and mission of their deployment was instead to silence the Portland protests. Id. ¶ 4.
First, carrying out the Policy’s direction, DHS and USMS agents have engaged in violent crowd-control measures that are not related to, let alone necessary for, the protection of federal property. Id. ¶¶ 94-98, 111-24. These measures have harmed individual protesters who posed no threat to federal property. Id. Second, DHS authorized a widespread program of surveilling protesters regardless of whether they pose a threat to federal property. Id. ¶¶ 99-101. Third, DHS has engaged in both unlawful arrests without probable cause and excessive force to intimidate and deter protesters. Id. ¶¶ 102-24. The federal agents’ operations have extended far from the immediate vicinity of federal property. Id. ¶ 114.
Throughout this time, the top leadership of the Department was serving without having been nominated, let alone Senate-confirmed, id. ¶¶ 62-68, reflecting President Trump’s preference for loyal “acting” officials who give him “more flexibility,” id. ¶ 69. Defendant purported Acting DHS Secretary Chad Wolf’s appointment, in particular, violates federal law. Id. ¶¶ 125-51.
The Policy has injured individual Plaintiffs. Id. ¶ 158-68. While Plaintiffs and other protesters have been engaged in peaceful protest, federal officials acting pursuant to the Policy have repeatedly attacked them. Ms. Barnum and others have been shot with flash-bangs at a close distance; repeatedly tear-gassed; and shot at with additional projectiles including rubber
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bullets. Id. ¶ 159. Defendants’ attacks on Ms. Barnum have caused severe and prolonged bodily injury and trauma. Id. ¶ 160. Federal agents executing the Policy have also shot Ms. James directly with paint balls, pepper-spray balls and rubber bullets, causing her substantial pain. Id. ¶ 161. Ms. Hester has been repeatedly subjected to tear gas from federal agents at the protests, which has caused her to feel nauseated and congested for hours after she returns home. Id. ¶ 162. Ms. Cerquera has suffered similar injuries by federal agents implementing the Policy, including being shot with pepper-spray balls. Id. ¶ 163. The federal agents’ presence at the protests has also caused emotional distress; Ms. James and Ms. Cerquera fear they will be kidnapped, detained, or attacked by federal agents. Id. ¶¶ 161, 163, 165.2
In addition to the physical and economic injuries they have suffered, individual Plaintiffs have all been deprived of or chilled in the exercise of their constitutional and civil rights. Plaintiffs have been forced, as a result of the Policy’s direction for federal agents to use tear gas and other munitions, to either leave the lawful protests or pay the price of their physical and mental health to exercise their constitutional rights. Id. ¶ 165. Notwithstanding the Policy to silence them, most of Plaintiffs have continued to place themselves at risk of further injury to continue to engage in First Amendment protected activity.
But not all. Dr. Kipersztok has been denied her right to participate in peaceful protest because Defendants’ Policy has created a chilling effect. Before the arrival of federal agents, Dr. Kipersztok, a family physician, participated in lawful protest. Id. ¶ 166. After federal agents were deployed, she intended to continue to exercise her right of protest. Id. After watching reports of
2 Plaintiffs have also suffered economic harm. They have been forced to purchase protective and medical supplies to mitigate their injuries. Compl. ¶ 164. They have also had personal property damaged or destroyed by federal agents acting pursuant to the Policy. Id.
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the federal agents’ use of force, however, she reasonably fears that attending these demonstrations would put her at serious risk of debilitating injury from federal agents. Id. ¶ 167. Dr. Kipersztok understands that she risks being shot or tear-gassed by federal agents, and that could lead to hospitalization and make her unable to care for her patients. Id. ¶¶ 166-67.
Defendants’ Policy has also frustrated Don’t Shoot Portland’s core organizational mission of supporting protests to further the BLM movement through mutual aid. Id. ¶ 152-57. Federal agents have destroyed the supplies that Don’t Shoot Portland provides to protect and support those wishing to exercise their First Amendment rights. Id. ¶ 156. Having to replenish the supplies that federal agents have destroyed before protesters can use them requires Don’t Shoot Portland to divert and expend thousands of dollars of funds and extensive time. Id. ¶ 157.
The Policy remains in effect. Id. ¶ 93; see also Br. at 5-6, 10, 22-24, 26. Plaintiffs have alleged they continue to engage in lawful protest. Id. ¶¶ 12-15, 46-48, 163-65. Don’t Shoot Portland will continue to devote resources and time to ensuring protesters’ right to express their First Amendment rights. Id. ¶¶ 152-57; 168. Purported Acting Secretary Wolf, for his part, has indicated that the Department has no plan to cease implementing the Policy until the protests are quelled: “This siege can end if state and local officials decide to take appropriate action instead of refusing to enforce the law. DHS will not abdicate its solemn duty to protect federal properties and those within them. Again, I reiterate the Department’s offer to assist local and state leaders to bring an end to the violence perpetuated by anarchists.”3 He reaffirmed that sentiment just a little over one week ago: “Yet again last night in Portland a ‘peaceful protest’ turned into a violent mob & attacked a federal facility. Make no mistake, the men & women of @DHSgov
3 Press Release, DHS, “Acting Secretary Wolf Condemns the Rampant Long-Lasting Violence in Portland” (July 16, 2020), available at https://www.dhs.gov/news/2020/07/16/acting-secretarywolf-condemns-rampant-long-lasting-violence-portland.
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will not be intimidated & will uphold their sworn statutory duty to protect federal facilities & the people who work in them.”4 Because the Department interprets “protecting” federal property as quelling peaceful protests, Plaintiffs’ harm is ongoing for as long as the Policy remains in effect.
STANDARD OF REVIEW Defendants have moved to dismiss under Rule 12(b)(1) and (6). A Rule 12(b)(1) motion “may raise either a ‘facial’ or a ‘factual’ challenge” to the court’s subject matter jurisdiction. Erby v. United States, 424 F.Supp.2d 180, 182 (D.D.C. 2006). “If a defendant mounts a ‘facial’ challenge to the legal sufficiency of the plaintiff's jurisdictional allegations, the court must accept as true the allegations in the complaint and consider the factual allegations of the complaint in the light most favorable to the non-moving party.” Id. A Rule 12(b)(6) motion may be granted only if the allegations in the complaint fail to provide “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted). “[W]hen considering a motion to dismiss, a court must construe a complaint liberally in the plaintiff’s favor.” CREW v. U.S. Dep’t of Justice, 436 F.Supp.3d 354, 357-58 (D.D.C. 2020).
ARGUMENT Plaintiffs seek injunctive and declaratory relief against the illegal Policy, which is alleged in detail in the Complaint and was implemented to frightening effect in Portland this summer. The Court has the power and obligation to set aside the Policy both under the APA and the Court’s general equity jurisdiction. Under the APA, courts must “hold unlawful and set aside agency action” that is arbitrary, capricious, contrary to law, or in excess of statutory authority and limitations. 5 U.S.C. § 706(2)(A)-(C). In addition, the Court’s inherent equity jurisdiction 4 Chad Wolf (DHS_Wolf), Twitter (Oct. 18, 2020 10:43 AM), https://twitter.com/DHS_Wolf/status/1317884109964910592.
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“has long been recognized as the proper means for preventing entities from acting unconstitutionally.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001); see also Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 491 n.2 (2010) (considering plaintiffs’ “Appointments Clause” claim for declaratory and injunctive relief without an express cause of action, because an implied cause of action existed just like for “every other constitutional claim”); Bell v. Hood, 327 U.S. 678, 684 (1946) (“[I]t is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution”); Ex parte Young, 209 U.S. 123, 149 (1908).
Defendants’ motion to dismiss must be denied because (I) Don’t Shoot Portland and the Individual Plaintiffs all have standing, (II) the alleged Policy is a reviewable final agency action, and (III) Wolf’s improper appointment deprived him of authority to issue the Policy. I. Don’t Shoot Portland and the Individual Plaintiffs all have standing.
Defendants argue that because their conduct was lawful, Plaintiffs don’t have standing to sue. But that is obviously not how standing is analyzed. Tooley v. Napolitano, 556 F.3d 836, 839 (D.C. Cir. 2009) (“At this stage of the litigation standing ‘in no way depends on the merits of the plaintiff’s contention that particular conduct is illegal.’”); NB ex rel. Peacock v. Dist. of Columbia, 682 F.3d 77, 82 (D.C. Cir. 2012) (“In assessing plaintiffs’ standing, ‘we must assume they will prevail on the merits’ of their claims.”). All Plaintiffs, including the individual Plaintiffs and the organizational Plaintiff, have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant[s], and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016). They therefore have standing to assert their claims.
And because all Plaintiffs seek the same relief, “the presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.” Rumsfeld v. Forum for
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Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006); see also Am. Anti-Vivisection Soc’y v. USDA, 946 F.3d 615, 619-20 (D.C. Cir. 2020).
A. The Individual Plaintiffs have standing to sue. The individual Plaintiffs – Beverley Barnum, Sabrina Cerquera, Demetria Hester, Danialle James, and Lisa Kipersztok – have standing. The individual Plaintiffs here have alleged that Defendants have an official policy, as well as a pattern and practice, of engaging in unlawful conduct. This is sufficient to allege an injury-in-fact that is current and ongoing. See, e.g., In re Navy Chaplaincy, 697 F.3d 1171, 1176 (D.C. Cir. 2012). Plaintiffs further allege future injury that is sufficiently “imminent” to be a cognizable injury-in-fact. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Plaintiffs have sufficiently alleged that Defendants have a policy of unlawful conduct. See Part A.2, supra. Defendants’ policy of unlawful conduct is a reviewable agency action under the Administrative Procedure Act, see Part B, infra, but Plaintiffs’ standing does not depend on that conclusion. When a Plaintiff sufficiently alleges that their injury was pursuant to defendants’ “concrete and consistently-implemented polic[y] to produce [] injury,” that is a cognizable injury-in-fact for Article III standing. In re Navy Chaplaincy, 697 F.3d at 1177; cf. Shays v. FEC, 414 F.3d 76, 85 (D.C. Cir. 2005) (“[W]hen agencies adopt procedures inconsistent with statutory guarantees, parties who appear regularly before the agency suffer injury to a legally protected interest in fair decisionmaking.” (internal quotation marks omitted)). Here, Plaintiffs have alleged that Defendants repeatedly injured Plaintiffs at the Portland protests pursuant to Defendants’ ongoing policy. Ms. Barnum has been “repeatedly tear-gassed” and hit with flashbangs and other projectiles. Compl. ¶¶ 159-60. Ms. James has, on several different days, been shot at with paint balls, pepper-spray balls, and rubber bullets. Id. ¶ 161. Ms. Hester has been “repeatedly” injured by tear gas, which caused her “face and skin to burn for
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hours.” Id. ¶ 162. Ms. Cerquera has been tear-gassed and shot at with pepper-spray balls. Id.
¶ 163. Indeed, none of this is surprising, as Defendants’ direction to use tear gas and other tactics
was “indiscriminate” and ubiquitous at Portland protests. See id. ¶¶ 111-24.
There is no “doubt that [plaintiffs’] allegations are sufficient to establish an ongoing or
imminent threat of injury.” Peacock, 682 F.3d at 83. Indeed, Defendants themselves have given
every indication they intend to continue the challenged conduct in the future. See Br. at 5-6
(claiming plaintiff’s experiences are “entirely consistent with lawful use of force”); see also id. at 10, 22-24, 26. Defendants have not even attempted to argue that Plaintiffs’ claims are moot.5
Moreover, regardless of the existence of an ongoing injury, Plaintiffs have certainly
alleged “facts that establish an imminent threat of future injury.” Peacock, 682 F.3d at 83.
“[W]here, as here, a plaintiff’s assertion of injury depends on the plaintiff's own future plans,
courts examine whether the injury is imminent from two angles: the firmness of the plaintiff’s
future plans, and the likelihood that the challenged government action will implicate those
plans.” Nucor Steel-Ark. v. Pruitt, 246 F.Supp.3d 288, 304 (D.D.C. 2017). Plaintiffs have
repeatedly engaged in protests over the course of several months, and alleged their intention to
continue to do so. Compl. ¶¶ 12-15, 46-48, 163-65. This is certainly sufficient to conclude that
5 Plaintiffs’ claims are not moot because the policy is still in effect. Even if mootness were a concern, however, two separate exceptions to mootness would apply. First, Plaintiffs’ claims would not be moot under the voluntary cessation doctrine. “[A]s a general rule, ‘voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.’” Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). Otherwise, “[a] defendant [would be] free to return to his old ways” as soon as the case is dismissed as moot, thereby thwarting judicial review. United States v. W.T. Grant, 345 U.S. 629, 632 (1953); see also Index Newspapers LLC v. City of Portland, No. 20-cv-1035, 2020 WL 4883017, at *14-*15 (D. Or. Aug. 20, 2020) (holding claims against federal defendants in Portland not moot, due to voluntary cessation). Second, Plaintiffs’ claims would not be moot under the doctrine regarding claims capable of repetition yet evading review, because “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” FEC v. Wis. Right To Life, Inc., 551 U.S. 449, 462 (2007).
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Plaintiffs’ own conduct will subject them to Defendants’ ongoing actions. See, e.g., Peacock, 682 F.3d at 83 (concluding that plaintiff who had alleged that he needs two inhalers per month “is virtually certain” to engage in the conduct in the future that would subject him to injury); Dearth v. Holder, 641 F.3d 499, 502-03 (D.C. Cir. 2011) (holding that plaintiff’s “stated intent to return regularly to the United States” and purchase firearms made the injury that he would suffer in those circumstances “sufficiently real and immediate to support his standing” at the pleading stage); Emergency Coal. to Def. Educ. Travel v. U.S. Dep’t of Treasury, 545 F.3d 4, 10 (D.C. Cir. 2008) (holding plaintiff had adequately alleged his future plans to lead a study-abroad program, where he described “the consistent annual repetition of the . . . program over several years” and his “concrete plans for the content and focus of the [upcoming year's] program”).
And Plaintiffs have alleged Defendants’ conduct is ongoing, pursuant to a policy, and likely to continue. Indeed, Defendants themselves defend their conduct as lawful and indicate they are likely to continue it as the protests in Portland continue. See Br. at 5-6 (claiming that plaintiff’s experiences are “entirely consistent with lawful use of force”); see also id. at 10, 2224, 26; cf. Harrell v. The Fla. Bar, 608 F.3d 1241, 1267 (11th Cir. 2010) (when a defendant “still maintain[s] that the challenged rule [is] constitutional,” that “fairly leaves open the possibility” that defendant will engage in the challenged conduct again). Thus, while “past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief,” these “[p]ast wrongs” are “evidence bearing on whether there is a real and immediate threat of repeated injury.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (alteration and internal quotation marks omitted); see also O’Shea v. Littleton, 414 U.S. 488, 496 (1974) (“[P]ast wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury”);
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Peacock, 682 F.3d at 84. Plaintiffs here have made “a reasonable showing that [they] will again be subjected to the alleged illegality.” Lyons, 461 U.S. at 109.
There is no merit to Defendants’ assertion that Plaintiffs were injured only incidentally, rather than intentionally, by the use of force carried out under Defendants’ direction. The causality prong has no intent requirement; it asks only whether injury is “fairly . . . trace[able] to the challenged action of the defendant.” Lujan, 504 U.S. at 561 (1992). Defendants’ assertion is irrelevant to the merits as well. See supra §§ C.1, 2, and 3.
Defendants also fail in specifically challenging Dr. Kipersztok’s standing. She has alleged a fear she will be subject to harm from Defendants’ unlawful conduct if she engages in the core protected speech activity of protesting. Compl. ¶¶ 51, 166-67. This fear is “objectively reasonable,” and in the First Amendment confer’s Article III standing. Phelps-Roper v. City of Manchester, 697 F.3d 678, 687 (8th Cir. 2012) (citing Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 302 (1979)). When “the government engages in discretionary actions resulting in threatened injury ‘for specifically contemplated First Amendment activity,’ the threatened harm will support standing if it satisfies the Article III injury-in-fact requirement.” Fraternal Order of Police v. Rubin, 26 F.Supp.2d 133, 141 (D.D.C. 1998) (quoting United Presbyterian Church v. Reagan, 738 F.2d 1375, 1380 (D.C. Cir. 1984) (Scalia, J.)).
Dr. Kipersztok is not asserting the interest of someone who, as the government dismissively asserts, simply “watches the news.” Br. at 11. Rather, she “specifically contemplated First Amendment activity” but was chilled from doing so. United Presbyterian Church, 738 F.2d at 1380. She participated in protests in June but ceased in mid-July when she “learned that the federal government had dispatched federal law enforcement agents to Portland,” specifically because she had learned of Defendants’ threatening conduct. Compl. ¶ 51.
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She wanted – and intended – to protest Defendants’ unlawful conduct. She was chilled from doing so, however, because she reasonably believed that Defendants’ conduct would cause her grave physical harm. Id.. Dr. Kipersztok has a cognizable injury-in-fact because she has been chilled from exercising her First Amendment rights. Id.. ¶¶ 166-67.
B. Organizational Plaintiff Don’t Shoot Portland has standing to sue. Don’t Shoot Portland has organizational standing because Defendants have frustrated its core organizational mission and forced the organization to expend and divert resources to counteract the harmful effects of Defendants’ Policy. Under Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), an organization has standing to bring suit if a challenged action has “perceptibly impaired” the organization’s non-abstract interests and caused “concrete and demonstrable injury to the organization’s activities.” Id. at 379. An organizational plaintiff must show, first, “that the defendant’s action or omission to act injured the organization’s interest,” and second, that the plaintiff “used its resources to counteract that harm.” Elec. Priv. Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 878 F.3d 371, 378 (D.C. Cir. 2017) (internal quotation marks and citations omitted); see also People for the Ethical Treatment of Animals v. USDA, 797 F.3d 1087, 1094 (D.C. Cir. 2015). Here, Don’t Shoot Portland’s core organizational mission is to support activists, protesters, and organizers exercising their First Amendment rights toward eradicating gross inequalities in society through “mutual aid.” Compl. ¶¶ 10, 36, 153. The Complaint alleges that Defendants’ harmful and unlawful Policy against protesters has injured Don’t Shoot Portland’s organizational mission. Defendants’ Policy of excessive force, unlawful arrests, and surveillance is designed to intimidate and deter protesters, and that directly impairs Don’t Shoot Portland’s core interest in supporting and advocating for BLM protesters’ First Amendment activity. Id. ¶¶ 39, 80, 94-124, 155. Defendants’ Policy to silence protesters frustrates Don’t Shoot Portland’s
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central efforts to facilitate the very protests Defendants are attempting to quell. See id.. ¶ 36. Defendants’ Policy of damaging and destroying the supplies Don’t Shoot Portland provides protest organizers before protesters have an opportunity to use them impedes Don’t Shoot Portland’s work to enable BLM protesters to safely exercise their First Amendment Rights during the COVID-19 pandemic. Id. ¶¶ 153, 155-56.
The Complaint also alleges that Don’t Shoot Portland has been forced to expend and divert its own resources to counteract the effects of Defendants’ harms. Federal officers acting at Defendants’ direction have destroyed the essential supplies that Don’t Shoot Portland provides protesters. Id. ¶¶ 154, 156. To counteract Defendants’ damage and destruction, Don’t Shoot Portland has deviated from its core value of accepting and distributing donated supplies – a tenet fundamental to the concept of mutual aid – and instead has spent thousands of additional dollars and extensive time to directly purchase personal protective equipment, first aid kits, items to provide relief from tear gas, and food and water. Id. ¶¶ 154, 157.
Defendants do not contest that they directed the destruction of donated items. Br. at 8. Instead, Defendants assert that because the donated supplies were “consumable” and were destroyed after Don’t Shoot Portland donated them, they were no longer Don’t Shoot Portland’s property, and thus, their alleged destruction cannot injure the organization. Br. at 8. Defendants’ theory is unsound. The “concrete and demonstrable injury to the organization’s activities,” Havens Realty Corp., 455 U.S. at 379, is not a proprietary one; as described above, Defendants’ destruction of these donated supplies before they could be “consumed” as intended required Don’t Shoot Portland to expend and divert additional resources to fulfill its core organizational mission. Defendants are also wrong to suggest that Don’t Shoot Portland made these expenditures “in the normal course of [its] operations.” Br. at 8. But for Defendants’ Policy of
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excessive force against protesters and destruction of supplies, Don’t Shoot Portland would not need to expend the extra time and money to replace supplies Defendants’ rendered unusable. II. The challenged Policy is reviewable agency action under the APA.
A. Plaintiffs have adequately alleged the existence of the Policy, and facts must be construed in Plaintiffs’ favor.
Defendants’ assertion that the Policy doesn’t exist raises the quintessential kind of factual dispute that cannot be resolved on the pleadings, and does not affect Plaintiffs’ standing. See Br. at 11-16. Rule 8’s standard pleading rules apply, despite Defendants’ contentions,6 and under those standards all plausible factual allegations must be construed as true, “even if doubtful in fact.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). That is equally true in APA cases. See CREW v. FEC, 243 F.Supp.3d 91, 98 (D.D.C. 2017). As a result, “[w]hether . . . an unofficial policy exists is an issue of fact” that cannot be resolved at the pleadings stage. In re Navy Chaplaincy, 170 F.Supp.3d 21, 37 (D.D.C. 2016). When pleadings present “highly fact-bound” questions of “whether an agency action is subject to judicial review,” the facts alleged in the complaint control. Am. Farm Bureau v. U.S. EPA, 121 F.Supp.2d 84, 105-06 (D.D.C. 2000). If the Government wishes to dispute factual allegations about the Policy and its existence, it must do so with evidence at a later stage of the proceedings. Id.
Here, the Complaint thoroughly alleges that the Policy exists. Compl. ¶¶ 71-124. The Complaint alleges “DHS established a policy to intimidate and deter protesters because of their views and beliefs.” Id. ¶ 80. It alleges DHS implemented this Policy “through a number of means: surveillance; the use of militarized and unidentified force; the excessive deployment of
6 See id. at 15-16 n.8 (strangely arguing for Rule 12 dismissal based on citations to a preliminary injunction case, Tenacre Found v. I.N.S., 78 F.3d 693, 696 (D.C. Cir. 1996); a summary judgment case, Martin v. Malhoyt, 830 F.2d 237, 255 (D.C. Cir. 1987); and a directed verdict case, Carter v. Dist. of Columbia, 795 F.2d 116, 123 (D.C. Cir.1986)).
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crowd-control measures such as tear gas, pepper-spray balls, and less-lethal munitions; and warrantless arrests or custodial detentions without probable cause.” Id. It also alleges “Defendants Barr and Washington directed USMS agents to follow the DHS Policy.” Id. ¶ 81.
The Complaint also alleges several subsidiary orders have been issued and implemented by Defendants and officials acting under the Policy. For example, the Complaint contains allegations about Wolf’s announcement of the PACT task force, which is meant to deploy law enforcement assets against people who are protesting against white supremacist and Confederate monuments. See id. ¶¶ 73-75.7 Also alleged are orders under the Policy to designate and deploy ICE and CBP agents as FPS agents, and DHS memoranda that authorize the use of surveillance tactics against protesters in support of the Policy. Id. ¶¶ 78-89, 99-101. The Complaint further alleges in detail how the Policy was implemented against Plaintiffs and other BLM and antiTrump protesters through the use of rubber bullets, tear gas, pepper spray, batons, rock salt, bean bag rounds, and flash bangs. See id. ¶¶ 39, 45-50, 153-68, 188-201.
Defendants appear to contend these federal agents were acting of their own accord, without direction from an overarching Policy. Br. at 18-19. But that is not what the Complaint says. This suit is not against individual federal officers. Instead, the Complaint alleges that Defendants – heads of federal agencies in the Nation’s capital – placed on-the-ground officers in an untenable position, directing them pursuant to a Policy to deploy excessive and unlawful force for impermissible reasons. These detailed and specific allegations – which must be presumed as true – are more than sufficient to indicate that the Policy exists.
Defendants misread the scant precedent they cite to imply that any policy that isn’t formally published or released can’t be challenged under the APA. This is wrong. Courts 7 See also Press Release, Dep’t of Homeland Sec., DHS Announces New Task Force to Protect American Monuments, Memorials, and Statues (July 1, 2020), https://perma.cc/2DYE-FTE4.
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routinely consider APA claims alleging the existence of unpublished policies, and regularly find that allegations of past agency practices can support a plaintiff’s claim that a policy exists.8
While of course the allegations of a policy must be “more than” merely “nebulous assertion[s],” Haase v. Sessions, 835 F.2d 902, 911 (D.C. Cir. 1987) – in the same way allegations in a complaint must contain more than “naked assertions devoid of further factual enhancement,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) – that standard is easily met here. Plaintiffs have alleged detailed and specific coordinated conduct by federal officials, numerous statements by the President and by the federal officials commanding DHS and DOJ regarding this specific issue, and identified the relevant policies that have been made publicly available. Compl. ¶ 7, 82-87, 98. All of this supports the conclusion that the allegation of a policy is “plausible on its face.” Iqbal, 556 U.S. at 678.
If Defendants want to dispute the scope and existence of the alleged Policy, they must produce an administrative record (and if appropriate, go through discovery) and then move for summary judgment. See 5 U.S.C. § 706 (stating “the court shall review the whole record or those parts of it cited by a party” when evaluating an APA claim); Am. Farm Bureau, 121 F.Supp.2d at 105-06 (holding that even if the EPA could “prove, after discovery, that its science policies do not qualify as final agency action or are not binding rules,” the Court must accept the allegations as true for the purposes of a 12(b)(6) Motion). Indeed, the Government must know
8 See, e.g., OCONUS DOD Employee Rotation Action Grp. v. Cohen, 144 F.Supp.2d 1, 6 (D.D.C. 2000) (denying agency motion to dismiss and finding plaintiffs sufficiently alleged the existence of a policy in part based on past “personnel decisions,” and other past anecdotal actions); In re Navy Chaplaincy, 170 F.Supp.3d at 37 (same, where plaintiffs supported their policy allegation with descriptions of past actions that the Navy argued reflected only “situationspecific decisions by Navy command”); Young v. U.S. Dep’t of Labor, No. CV 17-2428 (JDB), 2020 WL 1557170, at *10 (D.D.C. Apr. 1, 2020) (similar, where plaintiffs’ identification of “several agency documents” implying the existence of a policy was sufficient to overcome a motion to dismiss, where the government argued no policy existed).
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this is the appropriate path forward, because this is the routine procedure it follows. For example, in OCONUS, the Government argued in its motion to dismiss that the policy that plaintiffs had alleged did not exist. 144 F.Supp.2d at 5-6. The court, however, denied the Government’s motion to dismiss, holding that the complaint alleged that the agency “informally adopted and implemented” the disputed policy, and those allegations “must be taken as true” at the pleadings stage. Id. at 6. Notably, a year later the Government came back and dismissed the case on summary judgment based on actual evidence that contradicted the complaint’s factual allegations. OCONUS DOD Emp. Rotation Action Grp. v. Cohen, 140 F Supp. 2d 37, 44 (D.D.C. 2001). The same pattern was followed in the In re Chaplaincy case. Compare In re Navy Chaplaincy, 170 F.Supp.3d at 37 (denying motion to dismiss claims regarding informal policy of preferring certain Navy chaplains where plaintiffs “allege[d] that the facts, taken together, are indicative of a de facto policy,” which the court was obligated to “accept . . . as true.”), with In re Navy Chaplaincy, 323 F.Supp.3d 25, 43-4 (D.D.C. 2018) (granting summary judgment for Navy). The OCONUS and Navy Chaplaincy cases are emblematic of the appropriate next steps in this case: if Defendants wish to dispute Plaintiffs’ factual allegations, discovery and summary judgment provide that opportunity. But at this stage, the Court must accept the Complaint’s allegations of the Policy’s existence and scope as true.
B. The Policy is reviewable final agency action under APA § 704. The Policy is also a reviewable “final agency action” under the APA. See 5 U.S.C. §§ 702, 704.9 Agency action is considered “final” and therefore reviewable under § 704 when two conditions are met: (1) the agency action “mark[s] the consummation of the agency’s
9 Defendants do not contend Plaintiffs will not suffer a “legal wrong,” be “adversely affected or aggrieved,” 5 U.S.C. § 702, or that they possess another “adequate remedy in a court,” id. § 704.
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decision-making process” and is not “of a merely tentative or interlocutory nature”; and (2) the agency action is one “by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 176-78 (1997) (internal citations and quotations omitted). This is “a pragmatic and flexible inquiry,” and “[t]he possibility that a decision may later be revised based on new information does not render an otherwise definitive decision nonfinal.” Seeger v. U.S. Dep’t of Def., 306 F.Supp.3d 265, 285-87 (D.D.C. 2018) (denying motion to dismiss where complaint adequately alleged final agency action, “[p]articularly when viewed within the pragmatic and flexible framework of the inquiry and the acceptance given to a plaintiff’s fact allegations”).
The alleged Policy satisfies each of Bennett’s two conditions. First, the Policy marks the consummation of the agency’s decision-making process. The Government asserts that all of the disputed actions have been merely “incremental steps toward managing an unfolding lawenforcement crisis,” Br. at 17, but there is nothing “tentative” or “interlocutory” about the Policy as alleged in the Complaint. See Bennett, 520 U.S. at 177-78; see, e.g., Compl. ¶ 80 (“DHS established a policy to intimidate and deter protesters because of their views and beliefs.”) (emphasis added). Defendants have already determined the scope and details of the Policy; Defendants have issued multiple memoranda setting forth the Policy,10 made numerous public statements about the Policy and actually dispatched more than 100 federal agents to the streets of Portland to carry out the Policy. See Compl. ¶¶ 7, 72-80, 94, 99.
The Policy is not at all tentative like the non-final agency actions in the cases cited by Defendants. Br. at 19. For example, in Afifi v. Lynch, the challenged agency action was a single
10 The publicly known existence of the PACT task force and the surveillance memo in the possession of Lawfare together credibly indicate the administrative record will likely contain further written orders and memoranda relating to the Policy.
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discrete instance of FBI agents attaching a GPS device to the plaintiff’s car without a warrant, 101 F.Supp.3d, 90, 102 n.14 (D.D.C. 2015). Whereas here, Plaintiffs allege that Defendants instituted a Policy, designated employees of multiple federal agencies as FPS agents pursuant to that Policy, then deployed agents from multiple federal agencies to take actions against protesters in Portland, Oregon. This is neither a mere investigative step nor the actions of a single rogue officer. See Br. at 18-19 & n. 10.
Similarly, in Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety Commission, the agency action was not final because the agency “ha[d] not yet made any determination or issued any order . . . denying any right of [Plaintiff].” 324 F.3d 726, 731-32 (D.C. Cir. 2003) (emphasis added). Here, by contrast, numerous orders have been issued pursuant to the Policy, including the establishment and deployment of the PACT Force, the designation and deployment of ICE and CBP agents as FPS agents, and DHS memoranda that authorize the use of surveillance tactics. Compl. ¶¶ 7, 72-80, 94, 99. And of course, the Complaint alleges that the Policy directed the federal agents’ use of rubber bullets, tear gas, pepper spray balls, batons, rock salt, bean bag rounds, and flash bangs against Plaintiffs. See id. ¶¶ 39, 45-50, 153-68, 188-201. Defendants are not considering the Policy; they have adopted it and implemented it. The fact that Defendants might consider amending or changing the Policy in the future does not render the Policy nonfinal. “[A] policy can be final even if it is a policy within a larger decision-making process” and “even if it is made to inform another agency’s decision.” Young, 2020 WL 1557170, at *10-12 (finding an “unnamed and unidentified policy” was final agency based on agency documents and publics statements made by the agency).
Addressing Bennett’s second condition, Defendants argue that they have not taken “action by which rights or obligations have been determined, or from which legal consequences
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will flow.” Bennett, 520 U.S. at 176-78. That contention “does not withstand even casual scrutiny,” Humane Soc'y of U.S. v. USPS, 609 F.Supp.2d 85, 93 (D.D.C. 2009). Defendants designated more than 114 ICE and CBP agents as FPS agents, and deployed more than 100 federal agents to Portland under the Policy. Compl. ¶¶ 74-79. The designation and deployment orders certainly “determined obligations” for the federal agents. And the actions that the officers took at Defendants’ direction – firing tear gas and rubber bullets at protesters pursuant to the Policy, for example – are obvious legal wrongs suffered by Plaintiffs and protesters due to the Policy, from which legal consequences have already flowed. See Fogarty v. Gallegos, 523 F.3d 1147, 1161 (10th Cir. 2008) (permitting anti-war protester’s Fourth Amendment claims relating to police officers’ “use of pepper balls and tear gas”); Seeger, 306 F.Supp.3d at 287 (finding Bennett’s two conditions met where the “decision . . . places Plaintiffs' health at risk, according to their pleadings”); Pa. R. Co. v. Dillon, 335 F.2d 292, 294 (D.C. Cir. 1964) (defining “[l]egal wrong” as “the invasion of a legally protected right”).
Defendants’ remaining arguments against finality are similarly unavailing. Defendants argue that “actions taken by individual agents do not qualify as final agency action.” Br. at 18. But the individual agents’ acts are not the agency actions that Plaintiffs challenge; Plaintiffs seek to enjoin the named Defendants – all high-ranking government officials and government agencies – from further implementing the Policy.11 Compl. ¶¶ 9, 17-29. Responsibility lies not with individual federal agents, but rather with Defendants who deployed them into a situation in which their mere presence exacerbates the unrest and provokes backlash that can be perversely used to justify their continued deployment. Defendants also assert that there is no final agency 11 Moreover, Defendants are wrong on the law. An act of a subordinate official can be attributed to the agency and constitute final agency action if the act is “definite and ha[s] a direct, immediate impact” on “the party challenging the agency.” See PDK Labs, Inc. v. Ashcroft, 338 F.Supp.2d 1, 11 (D.D.C. 2004). It is, “as a matter of law, meritless” to suggest otherwise. Id.
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action based on the “future” actions that federal agents may take against protesters in Portland. Br. at 18. But again, this argument does not confront Plaintiffs’ actual claims. The Complaint does not challenge future actions by subordinate federal agents on the ground; it seeks to enjoin Defendants’ unlawful Policy. Compl., Prayer for Relief. In sum, the allegations in the Complaint allege the existence of a Policy that is a final agency action in light of the deployment orders and violent acts that have already occurred under its authority. III. Plaintiffs have stated nine claims for which relief may be granted.
A. The alleged Policy violates the APA because it has no statutory basis and is not justified by 40 U.S.C. § 1315.
Congress has not authorized and could not authorize DHS to act as a generalized police force, and for that reason the Policy is contrary to law and violates the APA. See Compl. ¶¶ 16987 (Counts I, II). Defendants point to 40 U.S.C. § 1315 as justification for the Policy, but that statute provides DHS authority to take certain actions only “to the extent necessary to protect [federal] property and persons on [federal] property.” 40 U.S.C. § 1315(b)(1). The statute’s narrow applicability to actions “necessary” to protect federal property is not just statutory but also constitutional. Section 1315 is bounded by the U.S. Constitution’s Property Clause, which permits Congress to “make all needful rules and regulations respecting . . . property belonging to the United States.” U.S. Const., art. IV, § 3, cl. iv. The Clause does not authorize federal action off federal property except when it is “directed solely to [the public lands’] protection.” Camfield v. United States, 167 U.S. 518, 525-26 (1897) (emphasis added). Thus, federal action on “private land adjoining public land” is permitted by the Property Clause only “when the regulation is for the protection of the federal property.” Kleppe v. New Mexico, 426 U.S. 529, 538 (1976). These limitations, which give effect to principles of federalism, are crucial to preventing DHS from acting with a “police power, which the Founders denied the National Government and reposed in
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the States.” See United States v. Morrison, 529 U.S. 598, 618 (2000); United States v. Lopez, 514 U.S. 549, 561 n.3 (1995) (quoting Screws v. United States, 325 U.S. 91, 109 (1945) (plurality opinion)) (“Our national government is one of delegated powers alone.”).
Defendants concede, as they must, that federal authority under § 1315 extends only “to the extent necessary to protect the property or persons on [it].” Br. at 22 (quoting 40 U.S.C. § 1315). Instead, Defendants’ key line of defense is to raise an evidence-based factual dispute that is inappropriate for a Rule 12(b)(6) motion. Specifically, Defendants ask the Court to take judicial notice of a Portland Police Bureau report to contradict Plaintiffs’ allegation that federal agents unnecessarily used force against them while peacefully protesting in a crowd more than two blocks away from the Mark O. Hatfield federal courthouse. Br. at 22-24. But judicially noticed facts are still, of course, facts that are outside the pleadings. See Fed. R. Evid. 201(b) (“Judicial Notice of Adjudicative Facts”). Weighing this evidence is a task for the jury..12
Rather than confront Plaintiffs’ allegations directly, Defendants mischaracterize the Complaint as “assum[ing] that federal law enforcement cannot issue or enforce dispersal orders to anyone outside federal property.” Br. at 22. That is not Plaintiffs’ contention. Plaintiffs instead assert, consistent with Defendants’ recitation of the law, that authority under § 1315 “extends only to the extent ‘necessary for the protection and administration of property owned or occupied by the Federal Government and persons on the property.’” United States v. Zagorovskaya, No. CR 13-583 PA, 2014 WL 12665158, at *7 (C.D. Cal. Oct. 8, 2014), aff’d on other grounds, 628 F. App’x 503 (9th Cir. 2015); United States v. Evans, 581 F.3d 333, 341 (6th Cir. 2009).
12 Moreover, the judicial notice rule would not allow a hearsay police report into evidence for the truth of the matters asserted as to a disputed factual issue. See Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”); Hurd v. D.C., Gov’t, 864 F.3d 671, 686-87 (D.C. Cir. 2017).
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As the Complaint alleges, the Policy is neither necessary for nor aimed at protecting federal property. First, in public official statements, Trump has repeatedly confirmed the Policy is aimed not at protecting federal property but at quelling protest by individuals with whom he disagrees. Compl. ¶ 178 (quoting the President).Second, DHS’s public and internal documents confirm that the Policy is not focused on defense of federal property. Operation Diligent Valor is part of PACT. Id. ¶ 75. Defendant Wolf’s announcement of PACT admits that the program extends to the protection of all “people and property,” with no federal qualifier. Press Release, Dep’t of Homeland Sec., DHS Announces New Task Force to Protect American Monuments, Memorials, and Statues (July 1, 2020), https://perma.cc/2DYE-FTE4. Similarly, an unclassified internal DHS Office of Intelligence & Analysis memorandum, which describes DHS’s “appropriate missions” pursuant to the Policy, authorizes federal personnel to surveil protesters based on threats of damage to any government facility or public monument, federal or nonfederal. Compl. ¶¶ 99-101 & n.3.13
The way in which the Policy has been carried out leaves no doubt its purpose is not to protect federal property, but to punish dissent. Defendants ignore Plaintiffs’ numerous allegations regarding federal agents’ overly aggressive actions far from the Hatfield courthouse or taken without regard for federal property. Plaintiffs allege federal agents have forcibly moved protesters as five blocks away from the protest. Compl. ¶¶ 96-97. Mark Pettibone was blocks from the courthouse, walking home from a protest, when he was arrested by CBP officers wearing camouflage and thrown in a van. Compl. ¶¶ 102-07. And DHS agents acting under the Policy’s directives have repeatedly and indiscriminately assaulted peaceful protesters, including Plaintiffs, with toxic tear gas, flash grenades, and pepper-spray balls, with no rational relation to 13 See also Steve Vladeck & Benjamin Wittes, DHS Authorizes Domestic Surveillance to Protect Statues and Monuments, Lawfare (July 20, 2020), https://perma.cc/96CB-RVTV.
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property protection. Id. ¶¶ 97, 111-12, 116-24. Plaintiffs have personally witnessed federal agents shoot protesters who are not engaged in acts of violence, standing blocks away from the federal courthouse, posing no threat to the building. See id. ¶¶ 94-96.
Because the Complaint describes policing actions by federal agents that are unnecessary to protect federal property or federal agents, Plaintiffs have sufficiently alleged that neither § 1315 nor any other federal statute authorizes the Government’s Policy. It is therefore arbitrary, capricious, not in accordance of law, contrary to the Constitution, in excess of statutory authority, and violative of the APA. 5 U.S.C. § 706(2)(A)-(C).
B. The Policy violates the First Amendment. Defendants’ Policy tramples on Plaintiffs’ First Amendment rights by restricting lawful protest activity. Compl. ¶ 188-92, 202-10 (Counts III, VI); see Calvary Chapel Dayton Valley v. Sisolak, 140 S.Ct. 2603, 2607-08 (2020) (“Public protests, of course, are themselves protected by the First Amendment”). The Policy violates the First Amendment in two distinct ways: (1) it is viewpoint and content discrimination, and (2) it is retaliation for protected speech.
1. DHS’s Policy is viewpoint and content discrimination, not a reasonable time, place, and manner restriction.
Where a government policy infringes First Amendment rights, the burden is on the government to show that the policy is a “reasonable time, place, and manner restriction.” Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984). Such restrictions are permissible only if “they are justified without reference to the content of the regulated speech, . . . are narrowly tailored to serve a significant governmental interest, and . . . leave open ample alternative channels for communication of the information.” Id. The Policy here fails this test because it is not “narrowly tailored to serve a significant governmental interest.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). As discussed above, the Policy extends far beyond
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any legitimate interest to protect public property, extending to actions that quell protests, including peaceful ones.
Plaintiffs allege, among other things, that Defendants routinely directed the use of force to drive protesters who were up to five blocks away from federal property, far from the point where they could pose any threat to federal property. Compl. ¶¶ 94-97. This amounts to the establishment of a prophylactic “buffer zone” around the public for a as a matter of convenience – a practice prohibited by the First Amendment. McCullen v. Coakley, 573 U.S. 464, 486 (2014). Buffer zones are only appropriate where the government demonstrates that less restrictive measures are inadequate. Id. at 496. Even then, legitimate buffer zones usually extend tens of feet around the location at issue, not blocks as alleged in the Complaint. See id. at 496-97 (striking down 30-foot buffer zone around abortion clinics as not narrowly tailored); Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357 (1997) (upholding 15-foot buffer zone around health clinics); see also Burson v. Freeman, 504 U.S. 191, 209-11 (1992) (upholding 100-foot buffer zone around polling places). Even if Defendants’ actions had the appropriate geographic nexus, Defendants’ use of excessive force against peaceful protesters, as alleged in the Complaint, is not a “narrowly tailored” restriction.
The Policy is also not a valid time, place, and manner restriction because it is neither content- nor viewpoint-neutral. See Clark, 468 U.S. at 293. When the government regulates based on the subject matter of speech, the regulation is content-based and strict scrutiny applies. See Reed v. Town of Gilbert, 576 U.S. 155, 163-64 (2015). When the government regulates based not just on the content of speech, but also on the viewpoint expressed on a particular subject, the regulation is outright impermissible. Minn. Voters All. v. Mansky, 138 S.Ct. 1876,
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1885 (2018) (“[R]estrictions based on content must satisfy strict scrutiny, and those based on viewpoint are prohibited”).
Here, the Policy discriminates on the basis of both viewpoint and content. In terms of content, the Policy targets only speech relating to race, monuments, and statues. See Compl. ¶¶ 99, 101, 185, 191. Although BLM protesters in Portland were subject to Defendants’ brutal crackdown in July, Defendants did not extend their Policy to heavily armed anti-pandemicrestriction protests in Michigan. See Compl. ¶ 55. Defendants articulate no compelling government interest for these restrictions. And once again, even if they could, the widespread use of tear gas, pepper spray, and munitions at close range is not a “narrowly tailored” restriction.
Even more egregious, the Policy targets the viewpoint, not just the content, of speech. The Policy is aimed at protests that express support for the BLM movement. See Compl. ¶¶ 5260. This viewpoint discrimination is flatly unconstitutional. No amount of scrutiny can save it. See Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”).
Contrary to Defendants’ contentions, Edrei v. Maguire does not support the proposition that their actions were lawful responses to threats to public safety. Br. at 26-27. First, as Defendants concede, Edrei condones such speech restrictions only if they are content-neutral. See Edrei v. Maguire, 892 F.3d 525, 541 (2d Cir. 2018). As discussed above, the Policy expressly targets BLM protesters. Second, authority to address public-safety threats is limited– public safety officials have “an obligation, absent imminent harm, to inform demonstrators that they must disperse, and may not use unreasonable force.” Id. Plaintiffs allege that Defendants’ Policy directed agents to use more force than necessary to disperse largely peaceful protesters far
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from the courthouse. Compl. ¶¶ 96, 114. Defendants also have destroyed the supplies that Don’t Shoot Portland provides to support those wishing to exercise their First Amendment rights. Id. ¶ 156. Defendants may argue at trial that their use of force was appropriate, but that is a fact question unsuitable for resolution on a motion to dismiss under Rule 12(b)(6).
2. The Policy is unlawful retaliation for speech. Defendants’ Policy of using tear gas, pepper-spray balls, and other munitions, as well as allowing direct assaults on protesters, in order to “quell” protests is quintessential, unlawful retaliation for Plaintiffs’ and others’ exercise of their First Amendment rights. The First Amendment “‘prohibits government officials from subjecting an individual to retaliatory actions’ for engaging in protected speech.” Nieves v. Bartlett, 139 S.Ct. 1715, 1722 (2019) (quoting Hartman v. Moore, 547 U.S. 250, 256 (2006)). To establish a First Amendment retaliation claim, Plaintiffs “must show (1) that [they] engaged in protected conduct, (2) that the government took some retaliatory action sufficient to deter a person of ordinary firmness in [their] position from speaking again, and (3) that there exists a causal link between the exercise of a constitutional right and the adverse action taken against [them].” Scahill v. Dist. of Columbia, 909 F.3d 1177, 1185 (D.C. Cir. 2018) (internal quotation marks omitted). “To establish the causal link, the constitutional speech must be the but-for cause of the retaliatory action,” id., pursuant to a subjective inquiry, Doe v. Dist. of Columbia, 796 F.3d 96, 107 (D.C. Cir. 2015). Plaintiffs sufficiently plead a First Amendment retaliation claim. First, Plaintiffs were engaged in the core First Amendment activity of peaceful political protest in a public forum. See Snyder v. Phelps, 562 U.S. 443, 451-52 (2011). Second, Defendants’ Policy and the federal agents’ conduct pursuant to the Policy would certainly deter a person of ordinary firmness from future expression. Federal officers acting pursuant to Defendants’ Policy have indiscriminately
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targeted protesters, including Plaintiffs, with tear gas, pepper-spray balls, rubber bullets, and other harmful and aggressive tactics, and arrests, causing extreme fear and injury.14 While some Plaintiffs continued to protest, the federal officers successfully deterred others from rejoining the protests despite their desire to do so. Compl. ¶ 166-67.15
The last element of the retaliation claim is satisfied because Plaintiffs’ constitutional speech was “the but-for cause of the retaliatory action.” Scahill, 909 F.3d at 1185. Contrary to Defendants’ suggestion, Br. at 26, the Complaint is replete with allegations that Defendants’ Policy was a direct response to the viewpoint and content of Plaintiffs’ speech. Statements by President Trump and individual Defendants show that the deployment of armed federal agents pursuant to the Policy is targeted at the political protesters exercising their First Amendment rights. President Trump specifically admitted that the deployment of federal agents to Portland was intended to quell the protests, stating his desire to “take over” America’s cities, his animosity toward “THUGS dishonoring the memory of George Floyd,” and decrying “superliberal” mayors and “the radical left.” See Compl. ¶¶ 52-60. No such federal action has been taken against protesters whose views the President embraces. Plaintiffs plausibly allege that the Policy violates their First Amendment rights.
14 See Compl. ¶ 48, 50, 51, 57, 97, 111-24, 159-63; Black Lives Matter Seattle-King Cnty. v. City of Seattle, Seattle Police Dep’t, No. 2:20-CV-00887-RAJ, 2020 WL 3128299, at *3 (W.D. Wash. June 12, 2020) (holding that the Seattle Police Department’s “use of less-lethal, crowd control weapons have surely chilled speech”); Buck v. City of Albuquerque, No. CV 04-1000 JP/DJS, 2007 WL 9734037, at *40 (D.N.M. Apr. 11, 2007) (holding that “use of tear gas, pepper spray, and physical force to disperse Plaintiffs could have chilled a person of ordinary firmness from continuing to participate in the demonstration”), aff’d 291 F. App’x 122 (10th Cir. 2008), and aff’d in part, appeal dismissed in part 549 F.3d 1269 (10th Cir. 2008). 15 Defendants suggest that Plaintiffs allege as retaliation only the warrantless arrests of certain protesters. Br. at 24-25. Not so. Plaintiffs’ First Amendment retaliation claim rests on the entirety of the policy, including the use of excessive force to harm Plaintiffs and other protesters.
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C. The Policy violates the Fourth and Fifth Amendments. Plaintiffs have plausibly alleged that Defendants’ Policy of using physical force,
including tear gas, rubber bullets, pepper-spray balls, and other crowd-control munitions to
disperse largely peaceful protesters violates their Fourth Amendment right to be free from
unreasonable seizures. See U.S. Const., amend. IV; California v. Hodari D., 499 U.S. 621, 626
(1991) (“The word ‘seizure’ readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful.”).16 Furthermore,
using force to retaliate against First Amendment activity is excessive force, even when law
enforcement faces what the government calls “riotous” crowds. Br. at 1. Individuals have a
“clearly established right not to have [violent force] used to ‘intimidate or retaliate against’
[them].” Morales v. Fry, 873 F.3d 817, 826 (9th Cir. 2017) (quoting Young v. City of Los Angeles, 655 F.3d 1156, 1162 (9th Cir. 2011)).17
In seeking to dismiss Plaintiffs’ excessive-force claim, Defendants make essentially two
arguments: (1) that Plaintiffs lack standing to pursue injunctive relief, and (2) that the use of
force was justified by the presence of non-peaceful demonstrators in the crowds. But Plaintiffs
16 See also United States v. Delaney, 955 F.3d 1077, 1081 (D.C. Cir. 2020) (“A Fourth Amendment seizure occurs when physical force is used to restrain movement.”); Marbet v. City of Portland, No. CV 02-1448-HA, 2003 WL 23540258, at *10 (D. Or. Sept. 8, 2003) (holding that allegations that state officials had used pepper spray and rubber bullets to “physically move[] back [protesters] from their peaceful positions” would, if true, constitute a seizure); Quraishi v. St. Charles Cnty., No. 4:16-CV-1320 NAB, 2019 WL 2423321, at *9 (E.D. Mo. June 10, 2019) (holding that “[f]iring tear gas, pepper spray, or other chemical agents at someone can constitute a seizure under the Fourth Amendment,” and that firing tear gas at journalists covering a protest did constitute a seizure in that case). 17 If this Court were to find that the use of tear gas does not constitute a seizure, Defendants’ actions would violate Plaintiffs’ Fifth Amendment right to due process. The Constitution’s guarantee of due process protects “the individual against arbitrary action of government,” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845 (1998) (internal quotation marks omitted), and therefore prohibits government conduct that “shocks the conscience,” including because it is “intended to injure in some way unjustifiable by any government interest,” id. at 846-49.
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do have standing to pursue injunctive relief, as discussed in section I. And whether the use of force was justified is, again, a fact question not suitable for resolution on a motion to dismiss. Defendants acknowledge that officials may use force to disperse a demonstration only if it is “substantially infected with violence or obstruction.” Br. at 28 (emphasis added) (quoting Wash. Mobilization Comm. v. Cullinane, 566 F.2d 107, 120 (D.C. Cir. 1977)). Plaintiffs have alleged that they, along with the majority of other protesters, were peaceful, and that violence was isolated. Multiple courts have held that indiscriminate use of tear gas against crowds protesting constitutes excessive force.18 Defendants’ reliance on statements by the Portland Police Bureau to characterize the tenor of the protests again raises factual questions not suitable for resolution on a motion to dismiss. The Court should deny the government’s motion to dismiss Plaintiffs’ Fourth and Fifth Amendment claims, as well as the APA claim based on the violation of these constitutional rights.
D. The Policy is null and void because Defendant Wolf cannot lawfully act as DHS’s secretary.
Finally, Plaintiffs have stated claims that Defendant Chad Wolf, the purported Acting Secretary of Homeland Security since November 2019, was not serving lawfully at the time he promulgated the Policy, and that it must be set aside. The Appointments Clause requires the Senate’s “Advice and Consent” for the appointment of all “Officers of the United States.” U.S. Const. art. II, § 2, cl. 2. The Clause distinguishes between principal officers, who can serve only with the Senate’s advice and consent, and “inferior Officers,” who are subject to the same requirement unless Congress “by law vest[s] the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Id. 18 See, e.g., Black Lives Matter Seattle-King Cnty., 2020 WL 3128299, at *4; Don’t Shoot Portland v. City of Portland, No. 3:20-CV-00917-HZ, 2020 WL 3078329, at *3 (D. Or. June 9, 2020); Abay v. City of Denver, 445 F.Supp.3d 1286, 1291-92 (D. Colo. 2020).
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For the offices requiring the Senate’s advice and consent (“PAS offices”), Congress has recognized that vacancies arise, and has therefore enacted statutes to allow for such vacancies to be filled on a temporary basis. See L.M.-M. v. Cuccinelli, 442 F.Supp.3d 1, 6 (D.D.C. 2020).
The two vacancies-related statutes relevant here are (i) the Federal Vacancies Reform Act (“FVRA”), 5 U.S.C. § 3345, and (ii) DHS’s organic statute. The FVRA is “the exclusive means for temporarily authorizing an acting official to perform the functions and duties of” a vacant PAS office unless “a statutory provision expressly . . . designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity,” or expressly authorizes another official to make that designation. 5 U.S.C. § 3347(a)(1). The FVRA generally limits the time during which an office may be filled by an acting official to 210 days. Id. § 3346. DHS’s organic statute is one of the statutes contemplated by the FVRA that expressly governs the order of succession for the position of Acting Secretary of Homeland Security when the office of the Secretary is vacant. See 6 U.S.C. § 113(a)(1)(A), (g).
As alleged in the complaint, Wolf’s service as Acting Secretary of Homeland Security does not comport with this statutory scheme. First, no Senate-confirmed Secretary of Homeland Security has approved an order of succession that would designate Wolf as Acting Secretary. Second, Secretary McAleenan was not the proper Acting Secretary under the HSA at the time he did so. Third, by the time McAleenan and Wolf took their relevant actions, the FVRA’s time limit on acting service had expired. Fourth, because Wolf is not the lawful Acting Secretary, his exercise of the functions and duties of the office violates the Appointments Clause. Fifth, Wolf’s efforts to ratify his prior actions as (purported) Acting Secretary do not save them.
1. No Secretary of Homeland Security has approved an order of succession that would designate Wolf as Acting Secretary.
Wolf’s service is not lawful under the Homeland Security Act or the FVRA because no
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Senate-confirmed Secretary signed an order of succession that would result in his appointment as Acting Secretary. Defendants identify two orders of succession that purportedly result in Wolf’s properly serving as Acting Secretary of the Department at some point in time: an order of succession signed on November 8, 2019, by then-purported Acting Secretary Kevin McAleenan, Ex. 3 to Blackwell Decl., and a second order of succession signed on September 10, 2020, by Federal Emergency Management Agency Administrator Peter T. Gaynor, Ex. 2 to Swartz Decl.19
Neither of these two orders provides a valid basis for Wolf’s assumption of the Acting Secretary role, because neither McAleenan nor Gaynor were Senate-confirmed, as the HSA requires. Only a Senate-confirmed permanent Secretary of Homeland Security is permitted to change the Department’s order of succession. See Nw. Immigrant Rights Project v. USCIS, No. 19-3283, 2020 WL 5995206, at *17-*24 (D.D.C. Oct. 8, 2020) (“NWIRP”). The HSA’s allows that “the Secretary may designate such other officers of the Department in further order of succession to serve as Acting Secretary.” 6 U.S.C. § 113(g)(2) (emphasis added). By distinguishing the role of “Secretary” from “Acting Secretary,” Congress indicated its intent to limit the order-of-succession authority to Senate-confirmed permanent secretaries.
The HSA’s distinction between acting and actual secretaries is consistent with the FVRA, which is by default the “exclusive means” for appointing acting officials, unless another statute “expressly authorizes . . . the President, a court, or the head of an Executive department, to designate an officer.” 5 U.S.C. § 3347(a)(1). In the absence of such a statute, under the FVRA, only the President may set an order of succession beyond a vacant office’s first assistant. Id. §§ 3345(a)(2), 3345(a)(3). The HSA succession provision, 6 U.S.C. § 113(g)(2), thus creates an exception to the FVRA by allowing “the Secretary” to establish an order of succession. If, as 19 As discussed in section III.D.5 below, the question of whether Gaynor properly took office as Acting Secretary is a fact question not suitable for resolution on a Rule 12(b)(6) motion.
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Defendants urge, an Acting Secretary is permitted to exercise the succession-order authority, this exception would greatly undermine the appointments “role ordinarily reserved to the ‘President (and only the President).’” NWIRP, 2020 WL 5995206, at *18. Such a result would “undermine the structure and purpose of the FVRA” and raise serious constitutional concerns under the Appointments Clause, by potentially allowing a non-Senate-confirmed inferior officer in the role of Acting Secretary to determine who would run the Department in the future. Id. at *19-*21.
Moreover, Defendants’ reading of § 113(g) “is also at odds with the plain meaning of the word ‘expressly’” in the FVRA. Id. at *19. The FVRA provides that exceptions to its succession provisions apply only if “a statutory provision expressly” allows for an alternative means of filling the vacancy. “The word ‘expressly’ . . . means ‘explicitly,’ ‘particularly,’ or ‘specifically.” Id. Here, the relevant statutory provision, § 113(g)(2), refers only to the “Secretary,” and not the Acting Secretary, as having the power to set an order of succession. And in the absence of an express statutory authorization, the FVRA forbids the Acting Secretary from designating the Department’s order of succession.
Contrary to Defendants’ contention, Br. 38-39, the NWIRP decision is not at odds with the D.C. Circuit’s recent ruling in In re Grand Jury Investigation, 916 F.3d 1047 (D.C. Cir. 2019). In that case, the court held that the Deputy Attorney General, while acting as Attorney General, was the constitutional “Head of Department” and therefore could appoint inferior officers. Id. at 1056. Its ruling relied on specific statutory authority providing the Deputy Attorney General with the power to perform “all the duties of th[e] office” in case of a vacancy, 28 U.S.C. § 508(a). Id. Here, by contrast, there is no similar authority for an officer other than the Secretary at DHS. Three times in two pages of their brief, Defendants point to dicta in the court’s opinion that an “acting officer is vested with the same authority that could be exercised
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by the officer for whom he acts,” 916 F.3d at 1055, to argue that an Acting Secretary of DHS must have all of the powers assigned to the Secretary of Homeland Security. But the court’s reasoning is focused entirely on the specific statutory authorities of the Deputy Attorney General, NWIRP, 2020 WL 5995206 at *21-23, and the case does not compel the same result here.
Because both McAleenan and Gaynor signed changes to the orders of succession when they were (purportedly) serving as Acting Secretaries of the Department, those orders of succession were outside the scope of their authority and have no effect. Under any version of Defendants’ argument, Wolf’s service as Acting Secretary relies on one of those two orders. No further analysis is required to hold that Wolf’s appointment and service as Acting Secretary is unlawful under the Homeland Security Act, and thus his issuance of the Policy violates the Appointments Clause, the Federal Vacancies Reform Act, and the Administrative Procedure Act.
2. McAleenan was not lawfully serving as Acting Secretary when he promulgated the order of succession that was the basis for Wolf’s service as Acting Secretary.
Even if a lawfully serving Acting Secretary could change the order of succession, at the time McAleenan signed the November 8 order of succession, he himself was not lawfully in that position, and therefore could not change the order of succession. Every court to address this question – in addition to GAO – has concluded McAleenan did not validly become Acting Secretary under DHS’s rules for vacancies in the Secretary’s office.20 For the reasons set forth below, this Court should conclude the same.
20 See Immigrant Legal Res. Ctr. v. Wolf, No. 20-cv-5883, 2020 WL 5798269 (N.D. Cal. Sept. 29, 2020) (“ILRC”); CASA de Maryland, Inc. v. Wolf, No. 20-cv-2118, 2020 WL 5500165 (D. Md. Sept. 11, 2020) (“CASA”); La Clínica de La Raza v. Trump, No. 19-cv-4980, 2020 WL 4569462 (N.D. Cal. Aug. 7, 2020) (“La Clínica”); U.S. Gov’t Accountability Office, B-331650, Legality of Service of Acting Secretary of Homeland Security and Service of Senior Official Performing the Duties of Deputy Secretary of Homeland Security (Aug. 14, 2020), https://perma.cc/NBR5-2S3D [hereinafter “GAO Decision”].
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When the last Senate-confirmed DHS Secretary Kirstjen Nielsen took office, the operative order of succession was DHS Delegation No. 00106, Revision No. 8, issued in 2016 by then-Secretary Jeh Johnson. DHS Orders of Succession and Delegations of Authorities for Named Positions, DHS Delegation No. 00106, Revision No. 08 (Dec. 15, 2016). Two provisions of Johnson’s order are relevant here. First, in case of the Secretary’s death, resignation, or inability to perform the functions of the Office, the order stated “the orderly succession of officials is governed by Executive Order 13,753, amended on December 9, 2016.” Id. § II.A. Second, if the Secretary is “unavailable to act during a disaster or catastrophic emergency,” the order delegated the Secretary’s authority “to the officials occupying the identified positions in the order listed (Annex A).” ECF No. 24-1, at 7, Ex. 1 to Blackwell Decl., DHS Delegation No. 00106, Revision No. 08, § II.B.
Before resigning on April 10, 2019, Nielsen purported to amend the operative DHS succession orders. However, Nielsen’s April 9, 2019 order stated that it was merely revising Annex A to Delegation 00106. ECF No. 24-1 (“Annex A of DHS Orders of Succession and Delegations of Authorities for Named Positions, Delegation No. 00106, is hereby amended by striking the text of such Annex in its entirety and inserting the following in lieu thereof”). Annex A only determines who may exercise the Secretary’s powers in the event the Secretary is incapacitated due to “a disaster or catastrophic emergency.” See DHS Delegation No. 00106, supra, § II.B. The portion of the succession order that applied to “the Secretary’s death, resignation, or inability to perform the functions of the Office,” remained unchanged, id. § II.A (emphasis added), and should have governed when Secretary Nielsen resigned. Under that provision, Executive Order 13753 provides the pertinent hierarchy for DHS succession, placing the U.S. Customs and Border Protection (“CPB”) Commissioner seventh in line to become
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Acting Secretary following a resignation. 81 Fed. Reg. 90,667 (Dec. 9, 2016). Nevertheless, upon Nielsen’s resignation, Kevin McAleenan, who was serving as CBP
Commissioner, purported to assume the position of Acting Secretary, despite the fact that two other Senate-confirmed individuals were ahead of him to succeed to that Office: Christopher Krebs, the Senate-confirmed then-Under Secretary for National Protection and Programs, and David Glawe, the Senate-confirmed then-Under Secretary for Intelligence and Analysis.
Thus, McAleenan could not lawfully exercise the authority of the Office of the Secretary when, on November 8, 2019, he issued a directive attempting to amend the order of succession to elevate the Under Secretary for Strategy, Policy, and Plans to be fourth in line to lead the agency. See Ex. 3 to Blackwell Decl. When McAleenan resigned on November 13, 2019, Wolf – who had been confirmed to the relevant Under Secretary position on that same day – purported to become Acting Secretary of Homeland Security. But Wolf’s purported authority to serve in that position rests on McAleenan’s invalid change to the succession order. This is the unanimous conclusion of the GAO and every court that has considered the matter. See supra, at 36 n.20. No court has accepted Defendants’ counterarguments, and this Court should not be the first to do so.
Defendants’ argument begins with an unsubstantiated distinction between “orders of succession” and “delegations of authority.” Br. at 35. Assuming this distinction, Defendants argue Nielsen’s invocation of 6 U.S.C. § 113(g)(2) indicates her intention was to modify both sections II.A and II.B of DHS Delegation No. 00106. Id. at 32, 35. They posit that section II.A was “merely descriptive” rather than a manifestation of the Secretary’s authority, and therefore an express statement of amendment was unnecessary. Id. at 34-35. Lastly, they say further support for their position is provided by DHS’s notice to the Senate on April 10, 2019, which stated the Office of the Secretary position had become vacant and listed McAleenan as the
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Acting Officer. Id. at 37. According to Defendants, this notice reflects DHS’s official contemporaneous understanding of Nielsen’s April 9 order and is entitled to deference. Id.
Each of Defendants’ points fails upon closer examination. First, the term “order of succession” is not used only to refer to vacancies that arise when an officer resigns or otherwise permanently leaves office. In fact, the DHS succession statute explicitly states that an “order of succession” extends to non-permanent vacancies, such as when the Secretary or Deputy Secretary are not “available to exercise the duties of the Office of the Secretary” due to “absence” or “disability.” 6 U.S.C. § 113(g).21
Second, Nielsen’s invocation of § 113(g)(2) could not override the plain language of her April 19 order. As explained above, supra, the April 9 order explicitly states that it revises Annex A. At no point does it provide that Annex A will now apply in the case of the Secretary’s death, resignation, or inability to perform the functions of the Office and in the event the Secretary is unavailable to act during a disaster or catastrophic emergency. Nor can Defendants point to any language that explicitly amends Section II.A of Delegation 00106. 22 Nowhere does the order assert that it supersedes the line of succession established by Executive Order 13753.23
21 Furthermore, the purpose of an “order of succession” adopted under the § 113(g)(2) is to avoid the FVRA’s limits on who may serve by default during a vacancy. See 5 U.S.C. § 3347(a)(1). Without a doubt, the FVRA applies to vacancies that arise when an official is temporarily “unable to perform the functions and duties of the office.” Id. § 3345(a). 22 Defendants suggest that there was “no need” for Nielsen to expressly amend Section II.A because it merely described the succession order in EO 13753, rather than setting out a separate order of the secretary. But that is beside the point: Section II.B and Annex A explicitly apply only in the event the Secretary is incapacitated due to “a disaster or catastrophic emergency”; as long as the Nielsen order did not change that language, which it did not, her changes to Annex A apply only in those limited circumstances. 23 Indeed McAleenan’s later change to the order of succession does purport to make Annex A the order of succession for all vacancies, superseding the executive order’s line of succession. ECF No. 24-1, at 41. This would have been unnecessary had Nielsen already made that change.
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Third, while Defendants cite to the DHS General Counsel’s April 10 notice to Congress to support their claim that their argument reflects DHS’s official contemporaneous understanding of the April 9 order, the next day DHS took an action that supports Plaintiffs’ position, rather than Defendants’. On April 10, DHS updated its internal regulations to reflect the changes to the order of succession. Consistent with Nielsen’s order, Annex A of the updated regulation now contained a revised line of succession for cases of “disaster or catastrophic emergency,” ECF No. 24-1, at 7, which matched the revised line of succession approved by Nielsen, see id., but the updated regulation left intact the line of succession for cases involving “the Secretary’s . . . resignation,” which were still “governed by Executive Order 13753.” Id. § II.A.
The record is unambiguous: when Nielsen resigned, Executive Order 13753 still governed who would serve as Acting Secretary. As such, McAleenan had no authority to ascend to the role of Acting Secretary or designate Chad Wolf as Acting Secretary.
3. Wolf’s service as Acting Secretary also violates the time limits under the FVRA
Both McAleenan’s efforts to change the DHS order of succession, and Wolf’s entire purported service as Acting Secretary, fail for an additional reason: they were undertaken after the FVRA’s time limit for acting service had expired. As noted above, the HSA creates a limited exception to the FVRA only with respect to who can serve as Acting Secretary of the Department. It does not otherwise displace the FVRA’s requirements for acting service. Specifically, it leaves in place the limitation that acting officers can serve in a vacant position only “for no longer than 210 days beginning on the date the vacancy occurs,” unless the president has nominated someone to fill the position permanently. 5 U.S.C. § 3346(a).
Defendants may argue that the HSA displaces the FVRA’s time limits on acting service. But this is contrary to the text of the HSA, and would raise serious constitutional concerns. The
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HSA indicates it is intended to operate alongside the FVRA. For example, the HSA specifies that, in the case of a vacancy, the Deputy Secretary is the “first assistant” to the Secretary for purposes of the FVRA. 6 U.S.C. § 113(a)(1)(A). Thus, the FVRA’s time limits would certainly apply to the Deputy Secretary acting as first assistant. See 5 U.S.C. § 5546(a). It would be an “absurd” result to impose those limits on a Senate-confirmed Deputy Secretary but not to a lower-level (potentially non-Senate-confirmed) official chosen by the agency head. Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 139 S.Ct. 2449, 2462 (2019). This interpretation would also raise serious constitutional concerns by potentially allowing for acting officers to serve indefinitely. It is “the temporary nature” of acting service that saves it from violating the Appointments Clause. United States v. Smith, 962 F.3d 755, 765 (4th Cir. 2020).
Here, it is clear the FVRA’s time limits were exceeded well before Wolf took office. The vacancy at DHS occurred when Secretary Nielsen resigned on April 10, 2019. Thus, on November 6, 2019, the office of Secretary had been vacant for 210 days. After that date, at the latest, the FVRA required the office to “remain vacant” until the President submitted a new nominee for Senate confirmation. Id. § 3348(b)(1). When McAleenan sought to amend the DHS succession order on November 8, the 210-day time limit had expired, so his succession order has no lawful effect. And Wolf has never lawfully served as Acting Secretary under the FVRA because the 210-day limit expired before he purported to assume the Office on November 13, 2019. Thus, his service violates the FVRA, and he could not authorize the Policy.
4. Because Wolf is not the lawful Acting Secretary under any applicable statute, his service in that position violates the Appointments Clause
Wolf’s service as Acting Secretary also violates the Appointments Clause, because he is serving as an officer of the United States without Senate confirmation. While Congress may be able to permit someone to serve as Acting Secretary of Homeland Security under “special and
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temporary conditions,” United States v. Eaton, 169 U.S. 331, 343 (1898), Wolf does not satisfy the applicable statutory conditions. 24 The Supreme Court has blessed acting service by non-
Senate-confirmed officers only in temporary and exigent circumstances, see Eaton, 169 U.S. at
343-44. But Wolf did not hold the position of Acting Secretary temporarily or in an exigent
circumstance. The vacancy was created in April 2019; Wolf was appointed to fill it
approximately seven months later. The administration moved to nominate Wolf to the position
permanently only after the GAO found him to be serving unlawfully. See supra, at 36 n.20.
Nor does Mr. Wolf’s confirmation as Under Secretary satisfy the requirement for Senate
confirmation for principal officers. Defendants contend that the position of Secretary of
Homeland Security is “germane” to Mr. Wolf’s position as Under Secretary, and therefore he
may serve as Acting Secretary without raising Appointments Clause concerns. Br. at 41. But the
Supreme Court has never held that a Senate-confirmed inferior officer can serve as a principal
officer by virtue of the prior confirmation. See Weiss v. United States, 510 U.S. 163, 191 (1994)
(Souter, J., concurring) (allowing an inferior officer to serve as a principal officer “would raise a
serious Appointments Clause problem”).
24 There is also very real question as to whether the Appointments Clause would be violated even if Wolf satisfied the DHS succession statute or the FVRA. See NLRB v. S.W. Gen., Inc., 137 S. Ct. 929, 945-49 (2017) (Thomas, J. concurring). In short, there is no doubt that the Secretary of Homeland Security is a principal officer. Under the Appointments Clause, principal officers can only be appointed with the advice and consent of the Senate—the Clause provides no alternative mechanism as it does for inferior officers. See id. at 946. Thus, “[a]ppointing principal officers under the FVRA” or, by the same logic, an agency succession statute, “raises grave constitutional concerns because the Appointments Clause forbids the President to appoint principal officers without the advice and consent of the Senate.” Id. One might get around this constitutional problem if the fact that Wolf is Acting Secretary—and thus purportedly will be exercising those powers on a temporary basis—somehow renders him an inferior officer, rather than a principal officer. But that would be inconsistent with the Supreme Court’s holdings in Morrison v. Olson, 487 U.S. 654, 671-72 (1988), and Edmond v. United States, 520 U.S. 651, 663 (1997), where the Court has described tenure in office as only one factor—and perhaps not even an important one—in determining whether an officer is principal or inferior.
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5. Wolf’s subsequent effort to ratify the policy cannot save it. Defendants’ final attempt to save the Policy is to claim a third order of succession, signed after this lawsuit was filed, designates Wolf as the proper Acting Secretary and allows him to ratify past actions. This argument fails as well. See ILRC, 2020 WL 5798269, at *9. First, the question of whether FEMA Administrator Gaynor ever properly became Acting Secretary of the Department is a fact question not suitable for resolution on a motion to dismiss. Defendants append one document, an order of succession signed by Gaynor, as evidence that Gaynor took office as Acting Secretary and changed the order of succession. They offer no evidence that the agency complied with other requirements for acting service pursuant to the FVRA, such as a notification to Congress that a vacancy had been created for Gaynor to fill. 5 U.S.C. § 5549. Nor is it apparent from the record whether this order was signed before or after President Trump sent Wolf’s nomination to the Senate on the same day. This raises serious questions as to whether Gaynor ever ascended to the office of Acting Secretary at all, and whether he did so before or after signing this order of succession. Second, Gaynor was not eligible to become Acting Secretary because there was no “vacancy” to fill. According to Defendants’ brief, Gaynor ascended to the position of Acting Secretary when Wolf was nominated to be the permanent Secretary on September 10, 2020. But as discussed in section III.D.3, supra, the FVRA’s 210-day time limit for acting service expired on November 6, 2019. Defendants argue that Gaynor could serve notwithstanding the time limit because of 5 U.S.C. § 3346(a)(2), which allows an acting official to continue to serve while a nomination is pending. But, crucially, § 3346(a)(2) doesn’t create a new vacancy, it only extends the service of a lawfully-serving acting official. Defendants’ own legislative history citation makes this clear: “When the acting person’s 150 days expires, the position again becomes
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vacant, but there is no ‘vacancy’ that permits another person to serve as acting for another 150 days.” S. Rep. No. 105-250, at 14 (1998) (referencing a 150-day limit that was later extended to 210 days). The only exception to this rule is if an acting officer “die[s] or resign[s],” in which case the vacancy can be re-filled, but the deadline is not extended. Id. Section 3346(a)(2) is a narrow exception to this rule that allows the same acting officer to continue (or resume) service in the vacant role when a nomination is submitted to the Senate. Id. (“The acting officer may serve even if the nomination is submitted after the 150 days has passed although, as discussed below, the acting officer may not serve between the 151st day and the day the nomination is submitted.”); see also NLRB v. SW Gen., Inc., 137 S.Ct. 929, 936 (2017) (the 210-day clock is “tolled” for a person already serving when a nomination is made, but only “reject[ion], withdraw[al], or return[]” will “start[] a new clock”). When the DHS vacancy was created by Nielsen’s resignation, Executive Order 13753 specified that Christopher Krebs, then Under Secretary for National Protection and Programs, should have become Acting Secretary. Krebs has not died or resigned, but rather continues to serve as the Director of the Cybersecurity and Infrastructure Security Agency meaning that the vacancy has never re-opened. There was therefore no basis for Gaynor to assume the office of Acting Secretary at all.
Third, as discussed in section III.D.1, supra, even if Gaynor were the lawful Acting Secretary, that did not give him the authority to change the Department’s order of succession.
Fourth, Wolf’s purported ratification of his past actions as Acting Secretary is not effective under the Appointments Clause, the FVRA, or the APA. Defendants identify no support for their contention that a subsequent ratification can cure action taken by an unlawfully-serving agency head. Indeed, the FVRA specifically provides that actions taken by officials serving in violation of 5 U.S.C. §§ 3345-47 “in the performance of any function or duty of a vacant office .
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. . shall have no force or effect” and “may not be ratified.” 5 U.S.C. § 5548(d). The designation of DHS employees to serve as Federal Protective Service agents, which is at the heart of the Policy that Plaintiffs challenge, is a function assigned by statute to the Secretary of Homeland Security. 40 U.S.C. § 1315(b)(1). Defendants suggest that this duty could be delegated to another official in the agency and therefore is not a “function or duty” belonging to the Secretary. Br. at 44. This argument is contrary to both the text and the statutory purpose of the FVRA, and should be rejected. Cuccinelli, 442 F.Supp.3d at 31-34. And even if ratification were permitted under the FVRA, Wolf’s promulgation of the Policy as an unlawfully-serving Acting Secretary means that the Policy “[was] not issued ‘in accordance with law,’ and must, accordingly be set aside under the APA.” Id. at 34. 25
*** Wolf was not lawfully serving as DHS’s Acting Secretary when he promulgated the Policy, and his effort to ratify the Policy is unlawful, therefore Plaintiffs’ claims under the Appointments Clause, FVRA and APA should not be dismissed.
CONCLUSION In conclusion, Defendants’ motion to dismiss should be denied.
25 Defendants do not invoke, and could not satisfy, either the APA’s prejudicial-error rule or the de facto officer doctrine as potential bases for Wolf’s ratification. With respect to prejudicial error, the court “cannot be confident that” the Policy “would have issued” under an Acting Secretary “other than” Wolf. SW General, Inc. v. NLRB, 796 F.3d 67, 80 (D.C. Cir. 2015). The de facto officer doctrine does not apply when a plaintiff’s action is brought “at or around the time that the challenged government action is taken,” and when the agency “has had reasonable notice under all of the circumstances of the claimed defect in the official’s title to office.” Id. at 81-82. Plaintiffs brought suit within a month of the Policy’s promulgation, Compl. ¶¶ 71-75, and DHS had notice of the defect in Wolf’s service by at least November 15, 2019, when members of Congress sought the GAO’s opinion on lawfulness of his service, see GAO Decision at 2.
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Dated: October 29, 2020

By: /s/ David A. O’Neil

Deana K. El-Mallawany (MA Bar No. 674825)* Justin G. Florence (D.C. Bar No. 988953) Benjamin L. Berwick (D.D.C. Bar No. MA0004) The Protect Democracy Project, Inc. 15 Main Street, Suite 312 Watertown, MA 02472 T: (202) 579-4582 | F: (929) 777-8428 deana.elmallawany@protectdemocracy.org justin.florence@protectdemocracy.org ben.berwick@protectdemocracy.org
Jessica A. Marsden (NC Bar No. 50855)* The Protect Democracy Project, Inc. 510 Meadowmont Village Circle, No. 328 Chapel Hill, NC 27517 T: (202) 579-4582 | F: (929) 777-8428 jess.marsden@protectdemocracy.org

David A. O’Neil (D.C. Bar No. 1030615) Debevoise & Plimpton, LLP 801 Pennsylvania Ave., N.W. Washington, D.C. 20004 T: (202) 383-8000 daoneil@debevoise.com
Matthew D. Forbes (NY Bar No. 5664354)* Debevoise & Plimpton, LLP 919 Third Avenue New York, NY 10022 T: (212) 909-6000 mforbes@debevoise.com

Christine Kwon (CA Bar No. 319384)* The Protect Democracy Project, Inc. 555 W. 5th St. Los Angeles, CA 90013 T: (202) 579-4582 | F: (929) 777-8428 christine.kwon@protectdemocracy.org

Rachel F. Homer (D.C. Bar No. 1045077) The Protect Democracy Project, Inc. 2020 Pennsylvania Ave., NW, #163 Washington, DC 20006 T: (202) 579-4582 | F: (929) 777-8428 rachel.homer@protectdemocracy.org

Counsel for Plaintiffs

*Admitted pro hac vice

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 Case 1:20-cv-02040-CRC Document 33 Filed 11/19/20 Page 1 of 33

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DON’T SHOOT PORTLAND et al., Plaintiffs,
v. CHAD F. WOLF, in his official capacity as Acting Secretary of Homeland Security,
Defendant.

Case No. 1:20-cv-2040-CRC

DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF THEIR MOTION TO DISMISS Pursuant to Local Civil Rule 7(d), Defendants hereby submit this reply memorandum in
response to Plaintiffs’ Brief in Opposition to Defendants’ Motion to Dismiss (ECF No. 26)
(“Opp’n”) and in support of Defendants’ Motion to Dismiss (ECF No. 24) (“Mot.”).

Case 1:20-cv-02040-CRC Document 33 Filed 11/19/20 Page 2 of 33 TABLE OF CONTENTS
INTRODUCTION......................................................................................................................... 1 ARGUMENT................................................................................................................................. 2 I. PLAINTIFFS LACK STANDING....................................................................................................2
II. PLAINTIFFS HAVE NOT ALLEGED ANY FINAL AGENCY ACTION. ...........................................8 III. PLAINTIFFS FAIL TO STATE PLAUSIBLE CLAIMS. ....................................................................9
1. DHS’s deployment does not violate 40 U.S.C. § 1315(b)(1). .............................. 11
1. Mr. Wolf’s Service Is Irrelevant to Plaintiffs’ Claims.......................................... 17 2. Mr. McAleenan Lawfully Served Under the April 9 Order.................................. 18 3. Mr. Wolf Lawfully Serves Under Mr. McAleenan’s Order of Succession. ......... 21 4. Mr. Wolf Ratified His Prior Delegable Acts. ....................................................... 28 CONCLUSION ........................................................................................................................... 30
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INTRODUCTION Plaintiffs base their entire case on the allegation that “Defendants have instituted a Policy to quell and punish the lawful speech and assembly of those advocating a particular viewpoint under the banner of federal property protection.” Opp’n 1. That supposed “Policy” is the basis for their claims to standing and their entitlement to relief. And indeed, all Plaintiffs ask through this lawsuit is “to enjoin Defendants from continuing to implement the Policy.” Id. But Plaintiffs cannot obtain that relief, because they have not pled factual allegations from which the Court could reasonably infer that the policy even exists. Instead, Plaintiffs infer “the Policy” from other policies; from various statements on social media; and from precious few examples of actions by federal agents on the ground in Portland. As Defendants have explained at length, Mot. 11-16, those alleged facts are not nearly enough to raise a plausible inference that the federal government has enacted a policy of taking over cities, conducting unlawful arrests, and indiscriminately gassing peaceful protesters with whom the government disagrees. Plaintiffs would like to allege that “[the U.S. Department of Homeland Security (“DHS”)] established a policy,” Opp’n 16 (quoting Compl. ¶ 80) and leave it at that. But the Court need not accept as true “naked assertions” devoid of “further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Nor must the Court, in a case challenging a government policy, accept a “nebulous assertion of the existence of a ‘policy’,” where none is actually cited. Haase v. Sessions, 835 F.2d 902, 911 (D.C. Cir. 1987). Raising a plausible inference that “the Policy” exists is a pleading requirement, not a “quintessential kind of factual dispute,” Opp’n 16, as those cases and others make clear. Plaintiffs’ case should be dismissed because their fear of future injury and substantive claims are all based on a “nebulous assertion.” Plaintiffs claim that the “policy” is invalid because Chad Wolf, the Acting Secretary of Homeland Security, had no power to implement it. But even if Plaintiffs had plausibly alleged that the policy exists, and even if the validity of Mr. Wolf’s service were relevant to Plaintiffs’ claims, those claims would still fail because Mr. Wolf lawfully services as Acting Secretary.
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ARGUMENT

I.

PLAINTIFFS LACK STANDING.

Plaintiffs seeking injunctive relief to prevent future injury must plead plausibly that such

injury is “certainly impending” and not merely “possible.” Mot. 4-5 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013).1 Plaintiffs have failed to do so. Instead, they attack a straw

man; Defendants have never argued that “because their conduct was lawful, Plaintiffs don’t have

standing to sue,” and Plaintiffs offer no citation to such an argument. Opp’n 9.

Don’t Shoot Portland Has Failed to Allege Organizational Standing. Plaintiffs agree that Plaintiff Wall of Moms should be dismissed, Opp’n 1 n.1, but maintain that Don’t Shoot Portland (“DSP”) has standing. Plaintiffs are wrong. DSP alleges that its “core organizational mission” is to support activists, protesters, and organizers exercising their First Amendment rights “through ‘mutual aid.’” Opp’n 14 (citing Compl. ¶¶ 10, 36, 153). The critical shortcoming of Plaintiffs’ Complaint, however, is the absence of any allegation that Defendants have impaired DSP’s provision of mutual aid. See Mot. 7-8. In response, Plaintiffs argue that “Defendants’ Policy” of intimidating and deterring protesters impedes DSP’s core mission. But even if Defendants had a policy of “excessive force, unlawful arrests, and [unjustified] surveillance,” Opp’n 14—which they do not—none of that stops DSP from providing “mutual aid” to protesters. Plaintiffs conflate the deterrence of actual protesting with the interruption of aid, the latter of which is DSP’s actual mission, and the frustration of which is never alleged. See Mot. 8 (“There is no allegation that Defendants are interrupting, intercepting, or impounding these supplies.”).

1 Plaintiffs argue that the Court need only find one plaintiff with standing to reach the merits of the case. See Opp’n 9-10 (citing Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006)). In Rumsfeld and other appellate cases, courts have reasoned that they need only find one plaintiff with standing—because that is all that is required to affirm or vacate a judgment below. That reasoning has less force in the Rule 12 context, however, and certainly “does not mean the Court must give all Plaintiffs an automatic ‘pass’ when one meets the standing requirements.” Ctr. for Biological Diversity v. Trump, 453 F. Supp. 3d 11, 29 (D.D.C. 2020) (citing Ry. Labor Execs.’ Ass’n v. United States, 987 F.2d 806, 810 (D.C. Cir. 1993)). This Court should similarly exercise its discretion to analyze each Plaintiff’s standing.

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Instead of pointing to any such allegation, Plaintiffs argue that Defendants have “destroyed the essential supplies that [DSP] provides protesters.” Opp’n 15. But as Defendants have explained, Mot. 7-8, that “mutual aid” was never meant to be returned. Take “food” and “water,” for example. Compl. ¶ 154. Plaintiffs’ theory is that, if DSP donates food and water to a protester, who then eats the food and drinks the water while attending a protest, that constitutes the Defendants’ destruction of DSP’s property. That is a facially untenable theory of standing, both as to injury and traceability to Defendants. It is all the more so, given that—as Plaintiffs reveal for the first time in their opposition—the mutual aid was donated to DSP in the first place. Opp’n 15. DSP cannot claim an injury from the “destruction” of supplies that were given to it for free and then donated to protesters with no expectation that the property would ever be returned.2
DSP disclaims any “proprietary” theory of injury. Opp’n 15. But in the preceding paragraph, it argues that it “has spent thousands of additional dollars and extensive time to directly purchase personal protective equipment, first aid kits, items to provide relief from tear gas, and food and water.” Id. Once again, that is not an impingement of, or diversion from, DSP’s core mission—providing those items is DSP’s core mission. At bottom, Plaintiffs allege that DSP’s mission is to donate aid to protesters and, because of Defendants’ actions, DSP has had to donate aid to protesters. That is insufficient to support standing. Mot. 8 (citing Conservative Baptist Ass’n of Am., Inc. v. Shinseki, 42 F. Supp. 3d 125, 132, (D.D.C. 2014) (organization “cannot convert its ordinary activities and expenditures . . . into an injury-in-fact”); Elec. Privacy Info. Ctr. v. U.S. Dep’t of Educ., 48 F. Supp. 3d 1, 24 (D.D.C. 2014) (same)).
Finally, Plaintiffs never respond to Defendants’ argument that DSP’s “thousands of dollars of funds and extensive time,” Compl. ¶ 157, are never broken down in any level of detail. Mot. 9 (collecting cases). Putting aside the facial implausibility of Plaintiffs’ theory of standing, therefore,
2 At one point, Plaintiffs suggest that Defendants destroyed DSP’s donated supplies “before they could be ‘consumed’ as intended.” Opp’n 15 (emphasis added). Plaintiffs cite no such allegation in the Complaint. Rather, the allegation is that food, water, hand sanitizer, etc. were all consumed just as they were intended to be.
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they have not provided sufficient detail to support it. That is reason enough to dismiss DSP. The Individual Plaintiffs Have not Plausibly Alleged Future Injury.
The individual Plaintiffs stake their theory of standing expressly on the “official policy, as well as a pattern and practice, of engaging in unlawful conduct.” Opp’n 10. Thus, if the Court agrees that no such policy or practice is plausibly alleged, then Plaintiffs have failed to allege a “certainly impending” future injury by their own terms.
Plaintiffs rely primarily on In re Navy Chaplaincy, 697 F.3d 1171 (D.C. Cir. 2012). Opp’n 10. In that case, certain Navy chaplains alleged that they were discriminated against, on the basis of their religion, in the Navy’s promotion system. But instead of assailing a secret, undisclosed “policy,” the plaintiffs instead “challenge[d] specific policies and procedures . . . that they claim have resulted in denominational discrimination and, if not ended, will continue to do so in the future.” Navy Chaplaincy, 697 F.3d at 1176. The D.C. Circuit distinguished between cases “where plaintiffs speculated about the very existence of the unwritten discriminatory practices at issue,” and that case, where “the Navy acknowledge[d] that the challenged policies and procedures not only exist, but will continue to govern the conduct of future selection boards.” Id. That distinction is critical, for standing purposes, because “[t]he prospect of future injury becomes significantly less speculative where[] . . . plaintiffs have identified concrete and consistently-implemented policies claimed to produce such injury.” Id. at 1176-77. It also makes for a stark contrast with this case, in which Plaintiffs are speculating about the very existence of “the Policy.” See Compl. ¶ 80 (alleging only “[u]pon information and belief” that “the Policy” exists at all). Thus, Navy Chaplaincy does not get Plaintiffs over the hurdle of standing.3
In fact, that case counsels dismissing Plaintiffs’ case. The D.C. Circuit affirmed “that vague predictions of future discriminatory conduct are insufficient to demonstrate the imminent threat of future injury necessary to support standing to seek injunctive relief,” id. at 1176, and surveyed
3 Plaintiffs also cite Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005), in which the “procedures” being challenged were FEC implementing regulations. Id. at 82. These were not secret, undisclosed policies, but rather were published in the Code of Federal Regulations. Id. at 98, 103, 107, 110-13.
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prior cases in which it had “found standing lacking where plaintiffs claimed future injury based on speculation about alleged discriminatory practices unconnected to concrete policies.” Id. (citing Worth v. Jackson, 451 F.3d 854, 860 (D.C. Cir. 2006) (plaintiff failed to demonstrate likely future injury where he “challenge[d] no statute, regulation, or written policy committing HUD to favoring minorities or women, resting his claim instead on speculation, untethered to any written directive, about how HUD is likely to make future employment decisions”)).
Unable to allege a “concrete polic[y]” as required by Navy Chaplaincy, 697 F.3d at 1176, and related D.C. Circuit precedent, Plaintiffs are left relying on their own individual experiences. See Opp’n 10-14. Defendants have demonstrated at length that those past experiences do not justify prospective relief. See Mot. 9-11. Plaintiffs’ alleged “future plans,” Opp’n 11-12, are insufficient; they must instead convince the Court that, if they attend another protest, injuries would be “certainly impending.” Clapper, 568 U.S. at 409. In other words, standing depends not only on Plaintiffs’ attending another protest, but on Defendants’ inflicting harm on them if they do. But “past exposure to illegal conduct,” which is all Plaintiffs allege, Opp’n 12-14, “does not in itself show a present case or controversy regarding injunctive relief.” Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (quoting O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974)).
Even if past exposure to illegal conduct were sufficient to establish standing, Plaintiffs have failed to identify such illegal conduct. Plaintiffs try to minimize the flaws in their allegations of supposedly unlawful conduct. Compare Mot. 10 (“Ultimately, the most plausible reading of Plaintiffs allegation is that Ms. Barnum was present when crowd-control or crowd-dispersal munitions were employed, and she was incidentally exposed.”) with Opp’n 13 (“There is no merit to Defendants’ assertion that Plaintiffs were injured only incidentally, rather than intentionally, by the use of force carried out under Defendants’ direction. The causality prong has no intent requirement . . . .”). But Plaintiffs’ failure to show that past exposure to tear gas, flash-bangs, etc. was unlawful is relevant to the standing inquiry in at least in two respects. Contra Opp’n 13. First, if Plaintiffs have not plausibly alleged that the past actions on which they rely were unlawful, they also have not plausibly identified a “Policy” of unlawful action—the premise of Plaintiffs’
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standing to obtain prospective relief. Second, and more fundamentally, if Plaintiffs have not plausibly alleged unlawful past actions, they any harm they suffered from those actions would not be redressed by the injunction they seek. An injunction against the unlawful use of tear gas, for example, would not prevent harms from the lawful use of tear gas. Plaintiffs’ failure plausibly to allege any unlawful conduct by Defendants is thus fatal to their claims of standing. See Mot. 9-11.
Plaintiffs also object particularly to Defendants’ arguments about Dr. Kipersztok. Opp’n 13-14. But while they chide Defendants for describing Dr. Kipersztok as someone who “watches the news,” that is the basis for her supposed standing. Compl. ¶ 166 (“News coverage has made clear to her that the federal officers have used tear gas and less-lethal weapons indiscriminately at the crowd . . . .”) (emphasis added). On that theory, literally anyone with a television or newspaper subscription—and who “specifically contemplated First Amendment activity,” Opp’n 13—could bring this lawsuit. That is not the law. See Mot. 11.
Plaintiffs Cannot Claim Standing to Challenge Future Actions Based on a “Policy” That Does Not Exist. The heart of this matter is the existence vel non of “the Policy.” In their motion to dismiss, Defendants catalogued every piece of evidence relied on by Plaintiffs and demonstrated how none of that evidence raises a plausible inference of “the Policy.” Mot. 11-15 (addressing and rebutting inferences drawn from Executive Order 13933; formation of the PACT; the alleged DHS intelligence memorandum; and informal statements made by government officials). In response, Plaintiffs first argue that the existence of “the Policy” is too “factual” to be decided on a motion to dismiss. But invocating the label “factual” does not insulate Plaintiffs from scrutiny of their factual allegations for sufficiency. As the D.C. Circuit has explained, the question of whether a policy is sufficiently alleged should not be reflexively deferred, as Plaintiffs contend, but rather forms the essential inquiry under Rule 12. See Haase, 835 F.2d at 908 (explicating the scope of a court’s review of a pleading under Rule 12(b)(1), and affirming dismissal of a complaint that insufficiently alleged the existence of a governmental policy). Turning to Plaintiffs’ allegations, they are as weak here as they were in Haase. As an initial
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matter, Plaintiffs seem to think that alleging “DHS established a policy” is itself enough. Opp’n 16 (quoting Compl. ¶ 80). But that is obviously not how standing is analyzed. See Mot. 15-16 (citing Haase, 835 F.2d at 910). Plaintiffs try to bolster their “nebulous assertion” with “several subsidiary orders,” but those have been debunked. See Mot. 13-14 (addressing the formation of PACT and the alleged DHS intelligence memorandum). Plaintiffs describe their allegations as “detailed and specific,” Opp’n 17, even though they admitted in their Complaint that it is only “[u]pon information and belief” that they allege the Policy’s existence at all. Compl. ¶ 80.
And while deriding as “scant precedent” the cases cited by Defendants, Opp’n 17-18, Plaintiffs bury their three proffered cases—one of them unpublished—in a footnote. See id. at 18 n.8. It is not surprising, therefore, that Plaintiffs’ cases are so easily distinguishable. In OCONUS DOD Employee Rotation Action Group v. Cohen, 144 F. Supp. 2d 1 (D.D.C. 2000), the Department of Defense had released a draft of the policy it intended to issue. Id. at 4. That is what the plaintiffs were challenging—not a policy alleged to exist only on information and belief, Comp. ¶ 80, but a written memorialization of the agency’s contemplated action. As described above, the plaintiffs in In re Chaplaincy challenged Navy procedures that the agency had admitted were in effect. And finally, in Young v. U.S. Department of Labor, No. 17-cv-2428-JDB, 2020 WL 1557170 (D.D.C. Apr. 1, 2020), the challenged HHS policy was borne out by “several agency documents.” Id. at *10. The court reproduced two of those documents in its opinion, emphasizing the passages that suggested the alleged HHS policy. Id. at *10-11. In this case, by contrast, there are no agency documents alleged, nor particularized facts in the pleading, that suggest a policy of excessive force, unlawful arrests, or viewpoint discrimination. See generally Mot. 13-15. Plaintiffs have cited no case where a supposed policy is inferred from allegations remotely comparable to those presented “on information and belief” here.
Plaintiffs suggest that, to counter their allegation, Defendants must produce an administrative record (“AR”) for the supposed policy. Opp’n 18-19. That is an ironic suggestion, since an AR comprises all records that were “before the agency at the time the decision was made,” James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996), and Plaintiffs fail to allege
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plausibly that any agency decided to adopt such a policy. But in any event, Haase and other cases make clear that failure to plead more than a “nebulous assertion” of a government policy—where it is required to infer future harm—warrants dismissal of the complaint, rather than the production of a hypothetical record and judicial review on the merits. The Court need not, and should not, wait until summary judgment.
* * * At bottom, Plaintiffs do not plausibly allege that DHS has enacted a policy of intimidating and deterring protesters because of their viewpoint; of using excessive force against peaceful protesters; or of conducting widespread warrantless arrests without probable cause. Comp. ¶ 80. The notion that a federal agency would adopt such a policy should be met with great skepticism and, contrary to Plaintiffs’ suggestion, need not be accepted at face value. Contra Opp’n 19. Rather, because Plaintiffs have offered no more than a “nebulous assertion” of “the Policy,” Haase, 835 F.2d at 911 (citing Lyons, 461 U.S. 95; Rizzo v. Goode, 423 U.S. 362 (1976); O’Shea, 414 U.S. 488), their complaint should be dismissed. See Mot. 11-16. II. PLAINTIFFS HAVE NOT ALLEGED ANY FINAL AGENCY ACTION. Even assuming that Plaintiffs had plausibly alleged a “policy” to challenge, such policy would not constitute “final agency action” reviewable under the APA under the governing twopart Bennett test. See Mot. 17; Opp’n 19-20. On the first element, Plaintiffs argue that “the Policy” is a final consummation of agency decisionmaking because Plaintiffs used the past tense in their complaint. Opp’n 20 (emphasizing “established”) (citing Compl. ¶ 80). But again, the Court need not accept so conclusory an allegation as true. And the Complaint nowhere includes “the scope and details of the Policy,” and “multiple memoranda setting forth the Policy” that Plaintiffs mention in their Opposition. See Mot. 13-16; Opp’n 20.4 Nor can Plaintiffs meaningfully deny that the particulars of Defendants’
4 Plaintiffs attempt to cure these deficiencies by suggesting, in a footnote, that “the administrative record will likely contain further written orders and memoranda relating to the Policy.” Opp’n 20
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response to the situation in Portland—whether and how many additional agents to designate; where to deploy them; how long to deploy them; which tactics to adopt in order to protect federal property; etc.—are fluid and therefore not consummate. Mot. 17-18.5
Plaintiffs misunderstand the second Bennett element, which asks “from the regulated parties’ perspective,” whether “rights or obligations have been determined, and legal consequences flow.” Mot. 17 (citing Soundboard Ass’n v. Fed. Trade Comm’n, 888 F.3d 1261, 1271 (D.C. Cir. 2018) (emphasis added)). Plaintiffs’ argument—that “obligations” were determined for the federal officials being deployed—is simply nonresponsive. Opp’n 22. And needless to say, firing tear gas or a rubber bullet to disperse a riot does not determine anyone’s rights or obligations in the Bennett sense—especially since, as Plaintiffs admit, they are not challenging “individual agents’ acts.” Opp’n 22.
Agency action must satisfy both Bennett elements in order to be reviewable. See Mot. 17. Because the action alleged here satisfies neither element, Plaintiffs APA claims must be dismissed. III. PLAINTIFFS FAIL TO STATE PLAUSIBLE CLAIMS.
Should the Court find that Plaintiffs have standing, the Complaint nevertheless should be dismissed for failure to state claims upon which relief can be granted.
Plaintiffs Have Not Plausibly Alleged that Defendants’ Deployment to Portland Violates the Administrative Procedure Act (Counts 1 and 2). Plaintiffs first challenge the deployment of federal officials to Portland as unlawful ab initio. These claims, and Plaintiffs’ opposition memorandum, overstate the limits on federal law enforcement. Opp’n 23-24. While 40 U.S.C. § 1315 is the authority by which the Secretary of Homeland Security may designate additional agents to protect federal property and persons on such property, “federal action” generally is not “bounded by the U.S. Constitution’s Property Clause.” Opp’n 23. Defendants Washington and the U.S. Marshals Service have statutory authority
n.10. This is the very definition of a fishing expedition and forms no basis to permit the case to proceed. Mot. 12 (citing Alsaidi v. U.S. Dep’t of State, 292 F. Supp. 3d 320, 328 (D.D.C. 2018)). 5 Those particulars are also committed to agency discretion. See Mot. 23 n.12.
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to arrest anyone, anywhere, if the person commits a federal crime in the deputy’s presence or upon reasonable grounds to believe that the person has committed a federal felony elsewhere. 28 U.S.C. § 566(d); 18 U.S.C. § 3053.6 U.S. Immigration and Customs Enforcement (“ICE”) Homeland Security Investigations (“HSI”) has the same arrest authority under 19 U.S.C. § 1589a, and the FBI—which falls under the purview of Defendant Barr—has the same arrest authority under 28 U.S.C. § 3052. ICE Enforcement and Removal Operations’s (“ERO”) has arrest authority under 8 U.S.C. §§ 1357, 1226(a) and also holds limited, delegated, general-crimes arrest authority under 19 U.S.C. § 1589a. In sum, “federal action” on “private land adjoining public land” is not limited to “the protection of the federal property.” Contra Opp’n 23 (quoting Kleppe v. New Mexico, 426 U.S. 529, 538 (1976)).7 Accordingly, the mere presence of federal agents off federal property— on which Plaintiffs rely so heavily—is not prima facie evidence of any unconstitutional overstep.
In any event, 40 U.S.C. § 1315 expressly authorizes designated DHS agents to perform duties “in areas outside the property to the extent necessary to protect the property and persons on the property,” id. § 1315(b)(1); to “conduct investigations, on and off the property in question,” id. § 1315(b)(2)(E); and to “make arrests without a warrant for any offense against the United States committed in the presence of the officer or agent or for any felony cognizable under the laws of the United States,” if the officer or agent “has reasonable grounds to believe that the person to be arrested has committed or is committing a felony,” id. § 1315(b)(2)(C).
“The statute thus expressly empowers FPS officers to conduct investigations and make arrests outside of federal property when ‘necessary to protect the property and persons on the property.’” United States v. Evans, 581 F.3d 333, 340-41 (6th Cir. 2009). In Evans, two FPS
6 USMS has also been delegated arrest authority from the Attorney General under 28 U.S.C. § 561(b), and has inherent court-security authority under 28 U.S.C. §§ 566(a), 566(e)(1)(A). 7 Kleppe involved a challenge to the Wild Free-Roaming Horses and Burros Act of 1971, and has nothing to do with the law-enforcement issues in this case. But for what it is worth, the Supreme Court in that case affirmed that “the power granted by the Property Clause is broad enough to reach beyond [federal] territorial limits.” 426 U.S. at 538 (citing Camfield v. United States, 167 U.S. 518 (1897)).
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officers followed the defendant’s car after she caused a disturbance and made threats in a federal office in Detroit. Id. at 336. However, “approximately four to five blocks from [that] office,” the defendant “maneuvered her car behind the officers’ FPS vehicle and began ‘tailgating’ their marked police car.” Id. After the defendant and others in the car made threatening gestures as if they had guns, the FPS officers pulled over the defendant, who was arrested and charged with threatening a federal law enforcement officer, in violation of 18 U.S.C. § 115(a)(1)(B). Id. at 338. The Sixth Circuit affirmed that both the surveillance and arrest were authorized under § 1315. Id. at 341, 342-43 (“As the district court and magistrate judge recognized, Evans’s conduct, her tailgating of the FPS officers’ marked police vehicle, and her visible hand gestures, which simulated the firing of a gun, provided the FPS officers with probable cause to arrest her, regardless of her presence on non-federal property.”) (emphasis added).
Evans and other cases illustrate that federal agents operating under § 1315 may investigate and surveil persons off federal property and arrest them on suspicion of federal crimes, even if those crimes were themselves committed off federal property. Thus, neither federal presence nor federal arrests outside of federal property suggests any violation of § 1315.
1. DHS’s deployment does not violate 40 U.S.C. § 1315(b)(1). Plaintiffs claim that Defendants’ designation and deployment of federal agents for deployment to Portland violates 40 U.S.C. § 1315, which empowers the Secretary of Homeland Security to designate additional DHS employees to augment FPS for certain purposes. Compl. ¶¶ 77, 177. Defendants have demonstrated that Plaintiffs do not plausibly allege that Defendants have exceeded § 1315’s scope. Mot. 20-23.8
8 On November 2, 2020, the DHS Office of Inspector General (“OIG”) issued a “Management Alert,” which recommended that “the Director of the [FPS] did not properly designate DHS employees recently deployed to protect Federal properties under 40 U.S.C. § 1315(b)(1),” because the FPS Director “did not identify any DHS employees by name.” See DHS OIG, FPS Did Not Properly Designate DHS Employees Deployed to Protect Federal Properties under 40 U.S.C. § 1315(b)(1) (Nov. 2, 2020), available at https://www.oig.dhs.gov/sites/default/files/assets/ Mga/2020/oig-21-05-nov20-mgmtalert.pdf.
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Plaintiffs accuse Defendants of raising an “evidence-based factual dispute.” Opp’n 24; see Mot. 22-23 (quoting from Portland Police Bureau (“PPB”) report of which the Court can take judicial notice). But the PPB report of which the Court can take judicial notice, and whose accuracy Plaintiffs never dispute, merely dispels Plaintiffs’ reinvented version of the facts—such as their latest suggestion that “minor damage” to the federal courthouse is what prompted Defendant’s response. Opp’n 1. The federal courthouse, and the federal agents within, have been subjected to weeks of attacks and violence. See Mot. 2 & nn.1-2. And Plaintiffs’ singular account of extracourthouse operations is belied by the facts. Compare Compl. ¶ 97 with Mot. 22-23.
But the Court need not take judicial notice of the PPB report to dismiss Plaintiffs’ claims as implausible. They rely first on the President’s statements at a roundtable event on July 13, 2020. Opp’n 25 (citing Compl. ¶ 178); see Compl. ¶ 84 (same). Defendants have already addressed those statements and pointed out that the “it” in the President’s statement was “violence directed specifically at law enforcement.” See Mot. 15 & n.7. At no time did the President suggest a policy of quelling any peaceful protests, let alone from a particular viewpoint, or by particular means. Id. Plaintiffs offer no response to these arguments.
Plaintiffs then cite “DHS’s public and internal documents,” Opp’n 25, the import of which have also been dispelled, see Mot. 13-16. In their opposition, Plaintiffs misrepresent the July 1, 2020, DHS press release. Compare Opp’n 25 (suggesting that there was no “federal qualifier”) with U.S. Dep’t of Homeland Security, DHS Announces New Task Force to Protect American Monuments, Memorials, and Statues (July 1, 2020) (noting that Executive Order 13933 “directs DHS, within its statutory authority, to provide personnel to assist with the protection of federal monuments, memorials, statues, or property” and that “[a]s a result, DHS created the PACT”)
Plaintiffs make no such claim in their complaint, and have not sought leave to amend their complaint in order to add such a claim. While Defendants have consented to a sur-reply on the topic of the Management Alert, Plaintiffs cannot amend their pleading through briefing in opposition to a motion to dismiss. Grell v. Trump, 330 F. Supp. 3d 311, 318 (D.D.C. 2018) (Cooper, J.) (collecting cases). Because there is no such claim in this case, Defendants do not address it here.
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(emphasis added).9 The leaked DHS memorandum gets Plaintiffs no closer, as that memorandum specifically forbids the sort of discriminatory surveillance that Plaintiffs infer from it. Compare Opp’n 25 with Mot. 13-14. Plaintiffs offered no response to these arguments, either.
That leaves Plaintiffs relying on “[t]he way in which the Policy has been carried out” to demonstrate that “its purpose is not to protect federal property.” Opp’n 25. But when they allege federal operations “far from the Hatfield courthouse,” Plaintiffs mean five blocks—exactly the distance in Evans. Nothing about that distance suggests a violation of § 1315. Nor does the single incident involving Mr. Pettibone—who was detained, Mirandized, and released—suggest any “Policy” of the sort alleged by Plaintiffs. See Mot. 25 (citing Wood v. Moss, 572 U.S. 744, 763-64 (2014) (“We therefore decline to infer from alleged instances of misconduct on the part of particular agents an unwritten policy of the Secret Service to suppress disfavored expression, and then to attribute that supposed policy to all field-level operatives.”). Plaintiffs never address the Supreme Court’s unanimous opinion in Wood v. Moss.
And Plaintiffs’ cursory allegation that Defendants “have repeatedly and indiscriminately assaulted peaceful protesters, including Plaintiffs,” is not entitled to a presumption of truth. Opp’n 25-26 (citing Compl. ¶¶ 94-97, 111-12, 116-24). Those paragraphs contain, at most, four examples of conduct: (1) the alleged July 24, 2020, displacement of protesters two blocks from the federal courthouse; (2) the alleged July 11, 2020, use of force against Donovan LaBella; (3) the alleged July 18, 2020, pepper-spraying of “Naked Athena”; and (4) the alleged July 18, 2020, use of force against Christopher David. Additional DHS agents have been deployed to Portland for four months; the fact that Plaintiffs can amass only four examples of purportedly unlawful conduct strongly suggests the absence, rather than the establishment, of a policy of “repeatedly and indiscriminately assault[ing] peaceful protesters.” Opp’n 25.10
9 Available at https://www.dhs.gov/news/2020/07/01/dhs-announces-new-task-force-protectamerican-monuments-memorials-and-statues. 10 Defendants will not address the merits of any of these four examples, in part because “the individual agents’ acts are not the agency actions that Plaintiffs challenge.” Opp’n 22.
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Finally, because Plaintiffs have not plausibly alleged that DHS’s designation or deployment falls outside the scope of 40 U.S.C. § 1315, they have not plausibly alleged that § 1315 was a pretext for DHS’s deployment. Mot. 23-24.
Plaintiffs Have Not Plausibly Alleged that Defendants Violated Plaintiffs’ First Amendment Rights (Count 3). Plaintiffs’ First Amendment argument is long on legal standards and constitutional doctrine, but short on the sufficiency of their pleading. See Opp’n 26-30. Citing four paragraphs of their complaint, Plaintiffs say that Defendants have “routinely directed the use of force to drive protesters who were up to five blocks away from federal property.” Opp’n 27 (citing Compl. ¶¶ 9497). In reality, as Defendants pointed out in their motion, those allegations consist of a single night’s events. Mot. 22-23.11 That is a far cry from “the establishment of a prophylactic ‘buffer zone,’” and the cases relied on by Plaintiffs are inapposite. Opp’n 27. Plaintiffs also have not plausibly alleged any content- or viewpoint-based regulation of speech. Regarding “content,” Plaintiffs’ only argument is that Defendants “did not extend their Policy to heavily armed anti-pandemic-restriction protests in Michigan.” Opp’n 28 (citing Compl. ¶ 55). Putting aside that there is no “Policy” to “extend,” Defendants are unaware of the federal courthouse in Lansing being firebombed and vandalized 17 times in a 31-day period. Compare id. with Mot. 2 & nn.1-2. The conduct in the two cities was not remotely comparable, in terms of threats to federal property, which is an “obvious alternative explanation,” Twombly, 550 U.S. at 567, for the apparent difference in federal response. Plaintiffs themselves allege that the protesters in Lansing were at the “state house,” not at any federal property. Compl. ¶ 55. Regarding “viewpoint,” Plaintiffs assert that Defendants’ “Policy” only targets the Black Lives Matter (“BLM”) movement. Opp’n 28 (citing Compl. ¶¶ 52-60). But the cited paragraphs of the Complaint do not even mention BLM, let alone aver facts from which the Court could plausibly infer a policy targeting that viewpoint (and Plaintiffs’ shifting theories about the policy undermine
11 And again, if the Court takes judicial notice of the Portland police report, even that allegation is belied by the true story.
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the credibility of their claims to its existence). As Defendants have argued: “There is no allegation, for example, that Defendants dispersed some protesters who were lighting fires on federal property but not other protesters who were doing the same.” Mot. 26. Nor is there any “allegation that protesters who shone lasers in officers’ eyes were arrested, while counter-protesters who did the same thing were not.” Id. In their opposition, Plaintiffs point to no such allegations.12
Finally, Plaintiffs allege that “the Policy” constitutes unlawful retaliation for speech. But under the legal framework that Plaintiffs lay out, they have failed to state a claim. First, they fail to allege “anything other than the unintended consequence of an otherwise constitutional use of force under the circumstances.” Barney v. City of Eugene, 20 F. App’x 683, 685 (9th Cir. 2001) (rejecting First Amendment retaliation claim where “protesters were warned repeatedly to clear the street or tear gas would be deployed, and there is no dispute that a small group of the crowd became violent”). Indeed, “a violent subset of protestors who disrupt civic order will by their actions impair the scope and manner of how law-abiding protestors are able to present their views.” Menotti v Seattle, 409 F.3d 1113, 1155 (9th Cir. 2005). More importantly, Plaintiffs have not alleged that any speech was a but-for cause of any retaliatory action. The Complaint is not “replete with [such] allegations,” as Plaintiffs contend, but rather rests on implausible readings of a smattering of social-media statements. Compare Opp’n at 30 with Mot. 14-16 (addressing and refuting the alleged import of four, informal statements by the President).
12 Plaintiffs try to distinguish Edrei v. Maguire, 892 F.3d 525, 541 (2d Cir. 2018), on the grounds that “the Policy expressly targets BLM protesters.” Opp’n 28. But of course, Defendants only cited Edrei for the proposition that, “[a]bsent some viewpoint- or content-based motivation, it is well understood that ‘government officials may stop or disperse a protest when faced with an ‘immediate threat to public safety, peace, or order.’” Mot. 26 (quoting Edrei, 892 F.3d at 541) (emphasis added). And as Defendants have now twice demonstrated, there is no content- or viewpoint-based discrimination at play here. Edrei applies, and Defendants actions were lawful.
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Plaintiffs Have Not Stated Plausible Fourth or Fifth Amendment Claims (Counts 4, 5, and 6). Plaintiffs allege that “Defendants have adopted a practice of deploying physical force, without provocation or legal grounds to do so, to compel demonstrators to move,” in violation of the Fourth and Fifth Amendments. Compl. ¶¶ 194-95, 199-200. Defendants have demonstrated why Plaintiffs have not plausibly alleged such violations. Mot. 27-30. To save these claims, Plaintiffs begin with a red herring: that the protests are “largely peaceful.” Opp’n 31. But as Defendants have noted, law enforcement may implement crowdcontrol measures if that crowd is “substantially infected with violence or obstruction.” Mot. 28 (citing Wash. Mobilization Comm. v. Cullinane, 566 F.2d 107, 120 (D.C. Cir. 1977)); see also Grayned v. City of Rockford, 408 U.S. 104, 116 (1972) (“[W]here demonstrations turn violent, they lose their protected quality as expression under the First Amendment.”). Plaintiffs dismiss Washington Mobilization Committee based on the word “substantially,” which they read to mean “mostly.” Cf. Opp’n 32 (“Plaintiffs have alleged that they, along with the majority of other protesters, were peaceful.”). But the D.C. Circuit equated “substantial measure” with a much lower standard: “numerous instances of disruptive and destructive behaviour by persons participating in these activities.” Wash. Mobilization Comm., 566 F.2d at 120. In the “Three Sisters Bridge” protest at issue, for example, there were “300-400 persons” marching and only “a few instances” of objects thrown at police. Id. at 112. In the “Watergate Apartments” protest, there were only “uncoordinated and spasmodic” throwing of “small stones and other objects” at police. Id. Yet these were deemed “substantially infected with violence or obstruction.” Id. at 120. And the court expressly rejected the argument “that the restrictions imposed by the police were greater than necessary because they resulted in the arrest of demonstrators who were not guilty of violence or obstruction, or of bystanders who were not participants in the demonstrations,” which is the sum of Plaintiffs’ arguments here. Id. at 120. In such cases, “the police cannot be expected to single out individuals,” as Plaintiffs would require; instead, the police “may deal with the crowd as a unit.” Id.13
13 See also id. at 120 (“[T]he police may validly order violent or obstructive demonstrators to disperse or clear the streets. If any demonstrator or bystander refuses to obey such an order after
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Plaintiffs then conflate their First Amendment and Fourth Amendment claims. Opp’n 31 (“Furthermore, using force to retaliate against First Amendment activity is excessive force, even when law enforcement faces what the government calls ‘riotous’ crowds.”). As noted above, Plaintiffs have not plausibly alleged that any force has been employed in retaliation against anyone’s speech.
Finally, Plaintiffs argue that “whether the use of force was justified is, again, a fact question not suitable for resolution on a motion to dismiss.” Opp’n 32. On that theory, no use-of-force claim (whether retrospective, or, as here, prospective) could ever be dismissed—which is not the law. See, e.g., Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012) (affirming, in an appeal from dismissal of an excessive-force claim for damages, that a district court should dismiss such a claim if it “does not contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”) (quoting Iqbal, 556 U.S. 678; Twombly, 550 U.S. at 570) (quotation marks omitted). But more to the point, Plaintiffs make clear that they are not challenging individual agents’ actions, so their re-invocation of a “fact question” is a red herring. Opp’n 22, 32. The question is not whether any particular incident involved unlawful force, but whether Defendants have a policy of excessive force. As explained at length, no such policy is plausibly alleged.
Plaintiffs do not address Defendants’ arguments that Plaintiffs have failed to state Fourth Amendment claims based on arrests or surveillance. Mot. 29. Should the Court agree that Plaintiffs have not stated a plausible claim based on excessive force, those alternative theories would not save the day. Counts 4, 5, and 6 should be dismissed.
Plaintiffs Have Not Alleged a Plausible Claim Based on Mr. Wolf’s Service (Counts 7, 8, and 9). 1. Mr. Wolf’s Service Is Irrelevant to Plaintiffs’ Claims. As explained, Plaintiffs have not plausibly alleged that any “policy” exists. Other than this purported policy, Plaintiffs analyze just a single discrete action allegedly taken by Mr. Wolf: “[t]he
fair notice and opportunity to comply, his arrest does not violate the Constitution even though he has not previously been violent or obstructive.”).
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designation of DHS employees to serve as Federal Protective Service agents.” Opp’n 45. But the
FPS Director—not Mr. Wolf—cross-designated the DHS employees under 40 U.S.C. § 1315. On
October 25, 2019, Acting Secretary McAleenan delegated his authority to designate officers under 40 U.S.C. § 1315(b) to the Under Secretary for Management.14 Later, Mr. Alles, the Senior Official
Performing the Duties of the Under Secretary for Management, delegated this authority to the FPS Director.15 In June 2020, Mr. Wolf directed DHS components to coordinate with FPS to support
the protection of federal property; he also ordered “[c]omponents with law enforcement personnel”
to “[c]omplete cross-designation consent and the appropriate training with FPS to legally allow Components to support the protection of Federal facilities and property.”16 Throughout June and July 2020, the FPS Director designated officers in four DHS components.17 As these events show,
Mr. Wolf did not designate the officers, and his service is immaterial to Plaintiffs’ claims.
2. Mr. McAleenan Lawfully Served Under the April 9 Order. If the Court concludes that Mr. McAleenan’s service is relevant to Plaintiffs’ claims, it
should find that he served lawfully under Ms. Nielsen’s order. On April 9, 2019, then-Secretary
14 Decl. of Juliana Blackwell ¶ 2, Ex. 1, Update to the Delegation 00002, Delegation to the Under Secretary for Management (approved Oct. 25, 2019). 15 Id. ¶ 6, Ex. 5, Delegation to the Director, Federal Protective Service, DHS Delegation No. 02500, Revision No. 00, § II.D (Dec. 18, 2019). 16 Id. ¶ 5, Ex. 4, DHS Support to Protect Federal Facilities and Property (June 30, 2020). 17 Decl. of L. Eric Patterson ¶ 3, Ex. 1, Designation of 40 U.S.C. § 1315 Law Enforcement for United States Customs and Border Protection Personnel (June 4, 2020); id. ¶ 3, Ex. 2, Designation of 40 U.S.C. § 1315 Law Enforcement for United States Customs and Border Protection Personnel (issued June 29, 2020); id. ¶ 3, Ex. 3, Designation of 40 U.S.C. § 1315 Law Enforcement for United States Customs and Border Protection Personnel (July 31, 2020); id. ¶ 4, Ex. 4, Designation of 40 U.S.C. § 1315 Law Enforcement for United States Immigration and Customs Enforcement Personnel (June 4, 2020); id. ¶ 4, Ex. 5, Designation of 40 U.S.C. § 1315 Law Enforcement for United States Immigration and Customs Enforcement Personnel (issued June 29, 2020); id. ¶ 4, Ex. 6, Designation of 40 U.S.C. § 1315 Law Enforcement for United States Immigration and Customs Enforcement Personnel (July 31, 2020); id. ¶ 5, Ex. 7, Designation of 40 U.S.C. § 1315 Law Enforcement for Transportation Security Administration Personnel (issued June 29, 2020); id. ¶ 5, Ex. 8, Designation of 40 U.S.C. § 1315 Law Enforcement for Transportation Security Administration Personnel (July 31, 2020); id. ¶ 6, Ex. 9, Designation of 40 U.S.C. § 1315 Law Enforcement for United States Secret Service Personnel (issued June 6, 2020); id. ¶ 6, Ex. 10, Designation of 40 U.S.C. § 1315 Law Enforcement for United States Secret Service Personnel (July 31, 2020).
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Nielsen exercised her authority under 6 U.S.C. § 113(g)(2) and designated an “order of succession” for the office of the Secretary that applied “[n]otwithstanding” the Federal Vacancies Reform Act (“FVRA”). Mot. 31-33. Ms. Nielsen’s order changed the list of officials in Annex A, which, before April 9, set the list of officials who could exercise the Secretary’s delegated authority during an emergency. Id. at 33-35. But the order did more than that. By explaining several times that she was designating an “order of succession,” and by invoking her power under § 113(g)(2), Ms. Nielsen designated the first-ever order of succession for the office of the Secretary. Id. at 32-33. As a matter of law, that order superseded the FVRA order set out in Executive Order (“EO”) 13753. Id. at 35. Plaintiffs’ arguments conflate orders of succession with delegations of authority and ignore the context of Ms. Nielsen’s order.
i. Arguing that orders of succession can extend to “non-permanent vacancies,” Plaintiffs try to explain the order’s references to “order of succession” by suggesting that Ms. Nielsen transformed § II.B of DHS Delegation 00106 into an order of succession. See Opp’n 39. This argument selectively picks and chooses which parts of § II.B the April 9 order retained and which parts it replaced. Plaintiffs point to § II.B’s reference to a catastrophic emergency to support their claim that the April 9 order did not apply when a Secretary resigned because it only amended Annex A, which applied only during an emergency. See id. at 37. But they then ignore § II.B’s plain text, which says “I hereby delegate to the officials . . . listed [in Annex A] my authority” (emphasis added). See Opp’n 39. Plaintiffs cannot point to any text in the April 9 order where Ms. Nielsen said that she was changing § II.B from a delegation of authority to an order of succession. And because § II.B was clearly a delegation of authority, Plaintiffs offer no explanation for why Ms. Nielsen would have said she was designating an “order of succession” under her authority in § 113(g)(2) if she was simply amending the delegation of authority.18
The more natural reading is that, even after the April 9 order, § II.B is still a delegation of
18 Plaintiffs suggest that the purpose of an order of succession under § 113(g)(2) is to avoid the FVRA’s limit on who may serve as an acting official during a vacancy. Opp’n 39 n.21. But because § II.B has always been a delegation of authority, it was not subject to the FVRA’s limits. There was thus no reason for Ms. Nielsen to transform § II.B into an order of succession to “avoid” them.
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authority. Far from “an unsubstantiated distinction,” see Opp’n 38, the HSA recognizes that delegations of authority, which allow subordinate officials to exercise certain powers of the office of the Secretary, differ from orders of succession, which identify officials who may become Acting Secretary in the event of a vacancy.19 Compare 6 U.S.C. § 112(b)(1), with id. § 113(g)(2); see also Stand Up for California! v. DOI, 298 F. Supp. 3d 136, 141 (D.D.C. 2018) (explaining that “nonexclusive responsibilities [may] be delegated to other appropriate officers and employees in the agency”). Earlier revisions to DHS Delegation 00106—indeed, the § II.A and § II.B structure that Plaintiffs rely on—recognize the difference. The references to “order of succession” and citations to § 113(g)(2) are best read as designating an unqualified order of succession.
ii. Plaintiffs then ask the Court to ignore the parts of the April 9 order that do not support their reading: they claim that “Nielsen’s invocation of § 113(g)(2) could not override the plain language of her April []9 order.” Opp’n 39. This “plain language” argument focuses on a single sentence in the two-page order where Ms. Nielsen explained that she was replacing Annex A. Id.; id. at 37. Defendants agree that Ms. Nielsen changed Annex A and that the new Annex A would control the list of officials who could exercise the Secretary’s delegated authority. Mot. 36. But the unqualified references to “order of succession” and citations to § 113(g)(2)—which Plaintiffs try to ignore—show that Ms. Nielsen also designated an order of succession. That order applied “[n]otwithstanding” the FVRA, see 6 U.S.C. § 113(g)(2), so it superseded EO 13753, which is the President’s pre-designation under the FVRA. And because it did so as a matter of law, Ms. Nielsen did not need to expressly say that her order would supersede EO 13753 or that it would amend § II.A of DHS Delegation 00106. Mr. McAleenan’s later amendment to the order of succession
19 Although other courts have disagreed with Defendants’ reading of the April 9 order, see Casa de Md., Inc. v. Wolf, No. 8:20-CV-02118-PX, 2020 WL 5500165, at *20-23 (D. Md. Sept. 11, 2020); Immigrant Legal Res. Ctr. v. Wolf, No. 20-CV-05883-JSW, 2020 WL 5798269, at *7-8 (N.D. Cal. Sept. 29, 2020) (“ILRC”), they confused orders of succession and delegations of authority and overlooked the context of DHS Delegation 00106, see Mot. 37-38. Another court recently found that Ms. Nielsen’s order did not designate an order of succession that controlled when a Secretary resigned, see Batalla Vidal v. Wolf, Nos. 16-CV-4756 (NGG) (VMS), 17-CV5228 (NGG) (RER), 2020 WL 6695076, at *6-8 (E.D.N.Y. Nov. 14, 2020), but it relied on Casa and ILRC and made the same errors.
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amended Part II.A and clarified that Annex A governs the order of succession when a Secretary resigns. Mot. 36. But Part II.A was still merely descriptive, and it was McAleenan’s order itself that changed the order of succession. Although Plaintiffs claim Mr. McAleenan’s clarification “would have been unnecessary had Nielsen already made that change,” Opp’n 39 n.23, the clarifying language about Annex A cannot change the legal effect of the April 9 order (and Plaintiffs cite no authority to the contrary).
iii. Plaintiffs point to Revision 8.5 of DHS Delegation 00106 as evidence that Ms. Nielsen did not designate an order of succession that controlled when a Secretary resigned. See Opp’n 40. Ms. Nielsen’s signed order—not the unsigned Revision 8.5—is the controlling document. The revisions made to DHS Delegation 00106 were done merely as an administrative matter, Mot. 33, and do not constitute an “internal regulation,” as Plaintiffs claim, see Opp’n 40. The fact that Delegation 00106 was not correctly updated as an administrative matter to reflect the legal effect of Ms. Nielsen’s order does not change the official action Ms. Nielsen took when she signed the April 9 order. Swartz Decl. ¶ 4, ECF No. 24-2 at 2-3. Indeed, Ms. Nielsen’s order was effective when she signed it, not when a subordinate inserted it into DHS Delegation 00106. Id. Ms. Nielsen understood that her order would govern and install Mr. McAleenan as Acting Secretary when she resigned.20 As shown by the notice of vacancy the agency sent to the Senate, DHS had the same understanding. Mot. 36-37.
3. Mr. Wolf Lawfully Serves Under Mr. McAleenan’s Order of Succession.
If the Court concludes that Mr. Wolf’s service is relevant to Plaintiffs’ claims, it should conclude that he lawfully serves under the order of succession that Mr. McAleenan designated.
a) An Acting Secretary May Designate an Order of Succession. As the Acting Secretary, Mr. McAleenan had the authority to designate an order of
20 CBP Commissioner Kevin McAleenan sworn-in as the Acting DHS Secretary; Opens New DHS Headquarters, Border Observer, https://theborderobserver.wordpress.com/2019/04/11/cbpcommissioner-kevin-mcaleenan-sworn-in-as-the-acting-dhs-secretary/ (last visited Nov. 1, 2020) (Ms. Nielsen swore Mr. McAleenan in as Acting Secretary).
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succession under § 113(g)(2) because an acting official is vested with all of the authority of the officer for whom he acts. Mot. 38. The Supreme Court explained this principle more than a century ago, Ryan v. United States, 136 U.S. 68, 81 (1890), and the D.C. Circuit recently reaffirmed it, In re Grand Jury Investigation, 916 F.3d 1047, 1055 (D.C. Cir. 2019). Congress itself has embraced this principle by allowing acting officials to exercise authority that may be exercised only by the officers for whom they act, cf. 5 U.S.C. § 3348(b); id. § 3348(a)(2), and by regularly designating acting officials by statute, see, e.g., 6 U.S.C. § 113(g)(1); 15 U.S.C. § 633(b)(1); 38 U.S.C. § 304; 40 U.S.C. § 302(b); 42 U.S.C. § 902(b)(4).
Relying on a single district court decision, Plaintiffs argue that only a Senate-confirmed Secretary may designate an order of succession. Opp’n 33-36. This Court is bound by D.C. Circuit precedent and should conclude that Mr. McAleenan possessed all of the Secretary’s authority.
i. Plaintiffs argue that Congress intended to limit the order-of-succession power to only Senate-confirmed Secretaries because § 113(g)(2) distinguishes between “Secretary” and “Acting Secretary.” Opp’n 34. But there is no reason to think this was Congress’s intent. After all, Congress understands that acting officials can exercise all the authority of a vacant office, and it expressly allows them to do so. Plaintiffs’ reading would lead to bizarre results that would undermine the point of acting service. Under Plaintiffs’ reading, each reference to “Secretary” in the HSA would refer to the Senate-confirmed Secretary. See Azar v. Alina Health Serv., 139 S. Ct. 1804, 1811 (2019) (“This Court does not lightly assume . . . Congress silently attaches different meanings to the same term in the same or related statutes.”). An Acting Secretary thus could not exercise any authority vested in the “Secretary.” The Court should reject a reading that leads to such absurd results. Had Congress wanted to limit the order-of-succession power to a Senate-confirmed Secretary, it easily could have done so. It did not.
ii. Plaintiffs also claim the FVRA requires Congress to “expressly” authorize the Acting Secretary to designate an order of succession, see Opp’n 35, but this misreads the FVRA. The FVRA is the “exclusive means” for acting service unless, as relevant here, “a statutory provision expressly” “authorizes . . . the head of an Executive department” to designate an acting official. 5
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U.S.C. § 3347(a)(1). Section 113(g)(2) expressly authorizes the head of DHS to designate an acting official. This is all the FVRA requires; thus, it is not the exclusive means for an official to serve as Acting Secretary. There is no further requirement in the FVRA that a statute must “expressly” authorize an acting official to perform specific actions.
Moving beyond the FVRA’s text, Plaintiffs argue that allowing an Acting Secretary to designate an order of succession would “greatly undermine” the President’s role in designating acting officials under the FVRA. See Opp’n 35; 5 U.S.C. § 3345(a)(2)-(3) (allowing President to designate acting officials). But Plaintiffs fail to explain how. Mr. Wolf holds his underlying position as the Under Secretary for Strategy, Policy, and Plans at the pleasure of the President. The President thus controls Acting Secretary Wolf the same as he does a Senate-confirmed Secretary.
As shown here, the HSA can give the President more control over the Executive Branch, even when an Acting Secretary designates an order of succession. Because Mr. Wolf serves under the HSA, he can serve as Acting Secretary while his nomination is pending. But if he were serving under the FVRA, he could not do so while his nomination is pending. 5 U.S.C. § 3345(b). Thus, the HSA allows the person the President has chosen to run the agency to serve in an acting capacity while that person’s nomination is pending.
iii. Plaintiffs argue that allowing an Acting Secretary to designate an order of succession would “raise serious constitutional concerns under the Appointments Clause[] by potentially allowing a non-Senate-confirmed inferior officer . . . to determine who would run the Department in the future.” Opp’n 34. This concern is misplaced.
The Court need not even consider the merits of this argument because a “designation” under § 113(g)(2) is best understood as conferring temporary duties on an already-appointed officer, not as an “appointment” to a new office under the Appointments Clause. Thus, an officer may serve as Acting Secretary without first being “appointed” as such in the constitutional sense. See Weiss v. United States, 510 U.S. 163, 176 (1994) (holding that Senate-confirmed commissioned officers could serve as military judges without second confirmation because they acquired duties in their official capacity that were germane to those of their underlying office);
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Designation of Acting Director of the Office of Management and Budget, 27 Op. O.L.C. 121, 122 n.3 (2003) (noting that the question whether an acting officer is an officer or employee “does not arise for anyone who is already an ‘Officer of the United States’ . . . , as any duties arising [from the acting service] can be regarded as part and parcel of the office to which he was appointed” (citing Weiss, 510 U.S. at 174)). Congress did not require a separate appointment for Acting Secretary. See generally 6 U.S.C. § 113; see also Weiss, 510 U.S. at 172 (explaining Congress knows how to require a separate appointment when it wants to). Rather than requiring a separate appointment, Congress has instead provided that certain officials will automatically begin serving in an acting capacity under both the HSA and the FVRA. See 6 U.S.C. § 113(g)(1); 5 U.S.C. § 3345(a)(1). Thus, a designation under § 113(g)(1) does not implicate the Appointments Clause.
Even if a designation under § 113(g)(2) is viewed as an appointment, binding precedent defeats Plaintiffs’ argument. In In re Grand Jury, the D.C. Circuit held that “an Acting Attorney General becomes the head of the Department when acting in that capacity because an acting officer is vested with the same authority that could be exercised by the officer for whom he acts.” 916 F.3d at 1055 (emphases added); see also id. at 1056. The same logic controls here. Like the Attorney General, the Secretary is the head of the Department. Compare 28 U.S.C. § 503, with 6 U.S.C. § 112(a)(2). And like an Acting Attorney General, an Acting Secretary “becomes the head of the Department” in accordance with In re Grand Jury by virtue of becoming the Acting Secretary. An Acting Secretary thus has the constitutional authority to make that appointment.
In an attempt to distinguish In re Grand Jury, Plaintiffs cite Northwest Immigrant Rights Project v. USCIS, No. CV 19-3283 (RDM), 2020 WL 5995206 (D.D.C. Oct. 8, 2020) (“NWIRP”), which posited that In re Grand Jury relied on separate statutory authority allowing the Deputy Attorney General to “exercise all the duties” of the office of Attorney General when it is vacant. See Opp’n 34-35; 28 U.S.C. § 508(a). The Court should reject this argument for several reasons. To begin, it ignores the opinion’s language, which says that “the Deputy Attorney General became the head of the Department by virtue of becoming the Acting Attorney General,” not by virtue of the position’s statutory authority. See 916 F.3d at 1056. The argument also disregards the authority
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on which In re Grand Jury was based: two Supreme Court decisions standing for the basic proposition that an acting officer can exercise all of the authority of the office for which she acts. Id. at 1055 (citing Ryan v. United States, 136 U.S. 68, 81 (1890); Keyser v. Hitz, 133 U.S. 138, 145–46 (1890)). Neither Supreme Court decision focused on the specific statutory language of 28 U.S.C. § 508(a). This shows that the D.C. Circuit’s holding did not turn on § 508(a).
Finally, this argument misunderstands § 508(a)’s legal effect. While § 508(a) allows the Deputy Attorney General to exercise “all the duties” of the Attorney General, that simply allows the Deputy to serve as Acting Attorney General when the office is vacant. In re Grand Jury Investigation, 315 F. Supp. 3d 602, 662–63 (D.D.C. 2018) (“It is well-settled . . . that statutory language authorizing one to exercise the duties of an office suffices to make that person an acting officer.”). And contrary to the reasoning of NWIRP, 2020 WL 5995206, at *21, it carries no special Appointments Clause significance. The Attorney General—not the Deputy—is the head of the Department of Justice. 28 U.S.C. § 503. The Deputy became the head of the Department “by virtue of becoming the Acting Attorney General.” In re Grand Jury, 916 F.3d at 1056. Far from having unique constitutional significance, § 508(a) is functionally identical to § 113(g)(2). The court in In re Grand Jury analyzed the statutory authority under § 508(a) to respond to the appellant’s argument that the Attorney General’s recusal did not make the Deputy the Acting Attorney General, not to support its conclusion that an Acting Attorney General becomes the head of the Department. See 916 F.3d at 1055.
b) The FVRA’s Time Limit Does Not Apply.21 Because neither Mr. McAleenan nor Mr. Wolf ever served under the FVRA, the FVRA’s initial 210-day time limit does not apply. Each court to decide the issue has concluded the FVRA’s initial 210-day time limit is not incorporated in the HSA. Casa, 2020 WL 5500165, at *19; ILRC, 2020 WL 5798269, at *11; Batalla Vidal, 2020 WL 6695076, at *6-8.
21 Because Plaintiffs did not raise this claim in their complaint, the Court should not consider it. Tex. Low Income Hous. Info. Serv. v. Carson, 427 F. Supp. 3d 43, 57 n.1 (D.D.C. 2019) (“It is axiomatic that a complaint may not be amended by the briefs in opposition to a motion to dismiss.”).
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The FVRA’s initial 210-day limit applies only to a “person serving as an acting officer as described under section 3345.” 5 U.S.C. § 3346(a)(1) (emphasis added); see also S. Rep. No. 105250, at 17 (1998). An official who serves under an office-specific vacancy statute—such as the HSA—does not serve under 5 U.S.C. § 3345. See 5 U.S.C. § 3347(a)(1) (explaining the FVRA is not the exclusive means for acting service when a vacancy arises in an office with an office-specific vacancy statute). The HSA itself contains no express time limit and provides that the Secretary’s authority to designate an officer under § 113(g)(2) applies “[n]othwithstanding” the FVRA. Because there is a conflict between the FVRA, which initially limits acting service to 210 days, and the HSA, which does not, the FVRA’s initial 210-day limit must give way under § 113(g)(2)’s “[n]otwithstanding” clause. See NLRB v. SW Gen., Inc., 137 S. Ct. 929, 939 (2017) (“The ordinary meaning of ‘notwithstanding’ is ‘in spite of,’ or ‘without prevention or obstruction from or by.’” (citation omitted)). Plaintiffs wrongly argue that the HSA is an exception to the FVRA only with respect to who can serve as Acting Secretary. See Opp’n 40. And although Plaintiffs may disagree with the results that the HSA’s plain text compel, see id. at 41 (claiming it is “absurd” that the Deputy Secretary, who serves under the FVRA, is subject to the FVRA’s time limit while subordinate officers designated under the HSA would not be), that disagreement cannot overcome the plain text, Casa, 2020 WL 5500165, at *19 (explaining why the result Congress chose is “logical[]”); ILRC, 2020 WL 5798269, at *11.22
c) Mr. Wolf’s Service Does Not Violate the Appointments Clause. Mr. Wolf’s service as Acting Secretary is consistent with the Appointments Clause because an individual acting in a principal office does not need Senate confirmation. See Mot. 40-41. Even
22 Plaintiffs argue that the HSA must incorporate the FVRA’s initial 210-day limit; otherwise, the HSA would raise constitutional concerns by permitting indefinite service. Opp’n 40-41. This is incorrect. Casa, 2020 WL 5500165, at *19; ILRC, 2020 WL 5798269, at *11. The Supreme Court has recognized that an acting designation must be “temporary.” United States v. Eaton, 169 U.S. 331, 343 (1898). But neither the Appointments Clause nor any other constitutional provision sets an express limit on acting service. Nor is there any reason to believe the 210-day period has any constitutional significance. Congress has repeatedly varied the time limits on acting service. See, e.g., Act of Feb. 13, 1795, 1 Stat. 415 (six months); 5 U.S.C. § 3348(a) (1994) (120 days). And not even the FVRA limits all acting service to 210 days; acting officers can serve for much longer under 5 U.S.C. §§ 3346(b)(1)-(2) and 3349a(b).
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if this were not the case, Mr. Wolf’s confirmation as Under Secretary would satisfy any requirement. Id. at 41. Plaintiffs’ arguments run counter to Supreme Court precedent and centuries of legislative practice. See id.
i. Plaintiffs concede that the Supreme Court has long permitted acting officers to serve without Senate confirmation, but they claim that Mr. Wolf’s service does not satisfy the requirement that the service be “temporar[y] or in an exigent circumstance.” Opp’n 42. But Plaintiffs have cited no clear constitutional standard that is violated by Wolf’s length of service. In addition, Mr. Wolf’s service is safely on the temporary side of any line. He began serving as Acting Secretary in November 2019, and even the FVRA allows acting officials to serve for years.23 The Court in Eaton did refer to acting service under “special and temporary conditions,” 169 U.S. at 343, but no particular exigency is required. The “special and temporary conditions” referred to in Eaton were not any particular exigency but the limits of the then-regulatory scheme, which permitted service during “the absence or the temporary inability of the consul,” 169 U.S. at 342, whatever the cause, see Guedes v. ATF, 356 F. Supp. 3d 109, 153 (D.D.C. 2019) (concluding that “a vacancy triggered by the resignation” was “the special circumstance”). Unsurprisingly, Plaintiffs cite no case finding acting service unlawful as not temporary.
ii. Plaintiffs then argue that Mr. Wolf’s prior confirmation does not satisfy the requirement for principal officers. Opp’n 42. This argument fails because, as every court to consider the issue has held, Senate confirmation is not required for acting service. See, e.g., Eaton, 169 U.S. at 34344; United States v. Smith, 962 F.3d 755, 764 (4th Cir. 2020); Guedes, 356 F. Supp. 3d at 146, 153. And if confirmation were required, Mr. Wolf’s prior confirmation would be sufficient because a person performing the duties of a vacant principal office is not a principal officer, see Eaton, 169 U.S. at 343; Guedes, 356 F. Supp. 3d at 146; Smith, 962 F.3d at 764, and because the duties of the
23 For example, the FVRA allows 210 days of service (or 300 if after a Presidential transition, see 5 U.S.C. § 3349a(b)) after the vacancy, see id. § 3346(a)(1); non-time limited service during the pendency of a first nomination, id. § 3346(a)(2); another 210 days of service if the first nomination is rejected, withdrawn, or returned, id. § 3346(b)(1); another period of non-time limited service during the pendency of a second nomination, id. § 3346(a)(2); and then another 210 days of service if the second nomination is rejected, withdrawn, or returned, id. § 3346(b)(2)(B).
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Secretary are germane to the duties of the Under Secretary, see Weiss, 510 U.S. at 176.24
4. Mr. Wolf Ratified His Prior Delegable Acts.
As explained, Plaintiffs analyze just a single discrete action allegedly taken by Mr. Wolf:
the designation of DHS employees under 40 U.S.C. § 1315. Opp’n 45. But Mr. Wolf did not issue
any such designations. Even if the Court concludes that Plaintiffs’ claims somehow implicate
actions taken by Mr. Wolf under § 1315, and even if the Court agrees with Plaintiffs’ reading of
Ms. Nielsen’s order of succession, Ms. Nielsen’s authority eventually passed under the FVRA to
the head of the Federal Emergency Management Authority (“FEMA”), Peter T. Gaynor, who
issued an order of succession under § 113(g)(2) that likewise placed Wolf in the position of Acting
Secretary. Mot. 42-44.25 Acting under that authority, Mr. Wolf ratified his prior delegable actions,
which would cover any actions (including the designation of officers) that he took under § 1315.26
24 Plaintiffs suggest that perhaps acting principal officers have to be confirmed. Opp’n 42 n.24. It is unsurprising that they do not actually ask the Court to adopt this suggestion. It is inconsistent with Eaton, 169 U.S. at 343-44, and with two hundred years of precedent from all three branches of government, see Guedes, 356 F. Supp. 3d at 149; Smith, 962 F.3d at 764-65. This suggestion “would ultimately mean . . . that Congress has gotten the Appointments Clause quite wrong for centuries. That is ordinarily a pretty bad sign.” Smith, 962 F.3d at 765. 25 Plaintiffs claim it is a fact question whether Mr. Gaynor properly became Acting Secretary. Opp’n 43. It is not. If EO 13753 governed the succession, Mr. Gaynor immediately became Acting Secretary after the President submitted Mr. Wolf’s nomination. Plaintiffs also argue that there is no evidence that DHS notified Congress of a vacancy that Mr. Gaynor could fill, as directed by 5 U.S.C. § 3349(a)(1). But the relevant vacancy under § 3349(a)(1) is the one created by Ms. Nielsen’s resignation, and DHS notified Congress of that vacancy. See ECF No. 24-2 at 6-7. And regardless, the FVRA does not condition acting service upon such a notification. See 5 U.S.C. § 3349(a)(1). Finally, Plaintiffs argue that the FVRA permits only “the same acting officer to continue (or resume) service” during a pending nomination. Opp’n 44. Neither § 3346(a)(2)’s text nor its legislative history supports this. Indeed, the legislative history Plaintiffs rely on simply explains that § 3346(a)(1)’s 210-day time limit runs from the date of the vacancy and does not restart with each new acting officer. See S. Rep. No. 105-250, at 14 (“Otherwise, a string of acting officials could [each] serve for [210] days.”). 26 Although the court in Batilla Vidal found the ratification ineffective on the notion that Mr. Gaynor’s order never made Mr. Wolf the lawful Acting Secretary, it relied on the flawed premise that “two different people . . . exercise[d] the Secretary’s power.” See 2020 WL 6695076, at *9. The agency has made clear that Mr. Gaynor designated an order of succession “out of an abundance of caution,” and, as Defendants explained, that order comes into play only if the Court finds that Ms. Nielsen did not designate an order of succession. Mot. 42-44. That is exactly what the Court in Batilla Vidal found, id. at *9, so under its own reasoning, Mr. Wolf never lawfully exercised the Secretary’s authority. Thus, Mr. Gaynor’s succession order and Mr. Wolf’s ratification were valid. Cf. NWIRP, 2020 WL 5995206, at *17 (concluding the ratification was
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Id. at 44. The ratification would cure any service-related defects in the actions. See Guedes v. ATF, 920 F.3d 1, 13 (D.C. Cir. 2019) (D.C. Circuit has “repeatedly held” a “properly appointed official’s ratification of an allegedly improper official’s prior action . . . resolves the claim on the merits by ‘remedying the defect’ . . . from the initial appointment” (alterations adopted and citation omitted)). There is thus no basis for setting aside any of Mr. Wolf’s actions under the APA.
On this topic, and per their earlier notice, ECF No. 31, Defendants acknowledge the apparent inadvertent factual inaccuracy relating to Mr. Wolf’s ratification of prior delegable acts contained in Defendants’ Motion to Dismiss. Review of FEMA and Senate records indicates that Mr. Gaynor likely signed the September 10, 2020 succession order approximately one hour before the Senate received the formal submission of Mr. Wolf’s nomination to serve as Secretary of Homeland Security. At a minimum, Defendants cannot confirm that the September 10 succession order was signed after the submission of Mr. Wolf’s nomination.
But the precise sequence is irrelevant to the merits of Defendants’ ratification arguments because, on November 14, 2020, Mr. Gaynor once more exercised any authority he may have as Acting Secretary by designating an order of succession under § 113(g)(2). Blackwell Decl. ¶ 7, Ex. 6, Order Designating the Order of Succession for the Secretary of Homeland Security (Nov. 14, 2020). Under this succession order, Mr. Wolf, as the Under Secretary for Strategy, Policy, and Plans and the senior-most official in the line of succession, would have become Acting Secretary. Thus, even if the FVRA and EO 13753 governed the order of succession for the office of the Secretary after Ms. Nielsen’s April 9 order, and even if Mr. Gaynor’s September 10 succession order was invalid, Mr. Wolf would still be the Acting Secretary under Mr. Gaynor’s November 14 succession order. And Mr. Wolf has since ratified any actions he took under § 1315 once more. Blackwell Decl. ¶ 8, Ex. 7, Ratification of Actions Taken by the Acting Secretary of Homeland
valid, so long as an Acting Secretary can designate an order of succession); id. at *24 (finding that an Acting Secretary cannot designate an order of succession).
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Security (Nov. 16, 2020).27
As for the merits, Plaintiffs argue that Mr. Wolf could not ratify his earlier designation of
DHS officers because the designation power is a “function or duty” under the FVRA. Again, Mr.
Wolf did not designate any DHS officers. But regardless, the power to do so is not a “function or
duty” of the office of the Secretary. Under 5 U.S.C. § 3348(a)(2), a “function or duty” is one that
a statute or regulation requires “to be performed by the applicable officer (and only that officer).”
Because § 1315’s designation authority is not only delegable, see 6 U.S.C. § 112(b)(1), but has in fact been delegated by the Secretary since 2003,28 and was again delegated in 2013,29 such authority is not a “function or duty” of the Secretary, see NWIRP, 2020 WL 5995206, at *16.30
CONCLUSION For the foregoing reasons, and those stated in Defendants’ Motion to Dismiss, the
Complaint should be dismissed.
27 Mr. Gaynor’s September 10, 2020 succession order was validly issued, regardless of the precise timing, because it was still signed on the same day as the submission of Mr. Wolf’s nomination. The FVRA provides that an acting official may serve “once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.” 5 U.S.C. § 3346(a)(2). That is, once Mr. Wolf’s nomination was submitted on September 10, 2020, Mr. Gaynor would have served as Acting Secretary “from th[at] date”—from September 10, 2020—while Mr. Wolf’s nomination is pending. Consistent with the long-established rule that, unless required by “substantial justice,” a governmental action is deemed effective from the first moment of the day in which it was enacted regardless of the precise time, Mr. Gaynor had the authority under § 3346(a)(2) to issue the succession order from the first moment of September 10, 2020. See, e.g., Taylor v. Brown, 147 U.S. 640, 645 (1893); see also United States v. Norton, 97 U.S. 164, 170 (1877); Lapeyre v. United States, 84 U.S. 191, 198 (1872). Thus, Plaintiffs’ argument about the timing of Mr. Gaynor’s order, see Opp’n 43, fails as a matter of fact (because of the November 14 order and later ratification) and as a matter of law (because of the deemed-effective rule). 28 Blackwell Decl. ¶ 4, Ex. 3, Delegation to Deputy Secretary, DHS Delegation No. 00100.2, ¶ II.H (June 23, 2003) (delegating “any other duties the Secretary . . . may designate”). 29 Id. ¶ 3, Ex. 2, Delegation to the Under Secretary for National Protection and Programs, DHS Delegation No. 17001, Revision No. 01, ¶ II.W (Oct. 25, 2013) (delegating authority to “[i]mplement 40 U.S.C. § 1315”). 30 Because all of the Secretary’s authority under § 1315 has been delegated, the same analysis would apply to any action that Mr. Wolf has taken in connection with protecting federal property.
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Dated: November 19, 2020

Respectfully submitted,
JEFFREY BOSSERT CLARK Acting Assistant Attorney General
BRIGHAM J. BOWEN Assistant Branch Director
/s/ Jason C. Lynch JASON C. LYNCH (D.C. Bar No. 1016319) MICHAEL P. CLENDENEN JEFFREY A. HALL JORDAN L. VON BOKERN Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street NW, Rm. 11214 Washington, DC 20005 Tel: (202) 514-1359 Email: Jason.Lynch@usdoj.gov
Attorneys for Defendants

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 Case 1:20-cv-02040-CRC Document 35-1 Filed 12/17/20 Page 1 of 51

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DON’T SHOOT PORTLAND, c/o Perkins Coie LLP, 1120 N.W. Couch Street, Tenth Floor, Portland, OR 97209,
BEVERLEY BARNUM, c/o Perkins Coie LLP, 1120 N.W. Couch Street, Tenth Floor, Portland, OR 97209,
SABRINA CERQUERA, c/o Perkins Coie LLP, 1120 N.W. Couch Street, Tenth Floor, Portland, OR 97209,
DEMETRIA HESTER, c/o Perkins Coie LLP, 1120 N.W. Couch Street, Tenth Floor, Portland, OR 97209,
DANIALLE JAMES, c/o Perkins Coie LLP, 1120 N.W. Couch Street, Tenth Floor, Portland, OR 97209,
LISA KIPERSZTOK, c/o Perkins Coie LLP, 1120 N.W. Couch Street, Tenth Floor, Portland, OR 97209,
Plaintiffs,
v.
CHAD F. WOLF, in his official capacity as the purported Acting Secretary of Homeland

Civil Action No. 1:20-cv-02040-CRC

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Security, Office of General Counsel U.S. Department of Homeland Security 2707 Martin Luther King Jr. Ave., SE, Washington, DC 20528,
KEN CUCCINELLI, in his official capacity as the purported Senior Official Performing the Duties of the Deputy Secretary of Homeland Security and the purported Senior Official Performing the Duties of the Director of U.S. Citizenship and Immigration Services, Office of General Counsel U.S. Department of Homeland Security 2707 Martin Luther King Jr. Ave., SE, Washington, DC 20528,
MARK A. MORGAN, in his official capacity as the purported Acting Commissioner for U.S. Customs and Border Protection, Office of Chief Counsel U.S. Customs and Border Protection 1300 Pennsylvania Ave., Suite 4.4-B Washington, DC 20229,
TONY H. PHAM, in his official capacity as the purported Senior Official Performing the Duties of the Director of U.S. Immigration and Customs Enforcement, Office of the Principal Legal Advisor U.S. Immigration and Customs Enforcement 500 12th St., SW, Mail Stop 5900 Washington, DC 20536,
L. ERIC PATTERSON, in his official capacity as the Director of the Federal Protective Service, Office of the General Counsel U.S. Department of Homeland Security 2707 Martin Luther King Jr. Ave., SE,
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Washington, DC 20528,
U.S. DEPARTMENT OF HOMELAND SECURITY, Office of the General Counsel U.S. Department of Homeland Security 2707 Martin Luther King Jr. Ave., SE, Washington, DC 20528,
U.S. CUSTOMS AND BORDER PROTECTION, Office of Chief Counsel U.S. Customs and Border Protection 1300 Pennsylvania Ave., NW, Suite 4.4-B Washington, DC 20229,
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, Office of the Principal Legal Advisor U.S. Immigration and Customs Enforcement 500 12th St., SW, Mail Stop 5900 Washington, DC 20536,
FEDERAL PROTECTIVE SERVICE, Office of the General Counsel U.S. Department of Homeland Security 2707 Martin Luther King Jr. Ave., SE, Washington, DC 20528,
WILLIAM BARR, in his official capacity as the Attorney General of the United States, 950 Pennsylvania Avenue, NW, Washington, DC 20530,
DONALD W. WASHINGTON, in his official capacity as the Director of the U.S. Marshals Service, 950 Pennsylvania Avenue, NW, Washington, DC 20530,
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U.S. DEPARTMENT OF JUSTICE, 950 Pennsylvania Avenue, NW, Washington, DC 20530, U.S. MARSHALS SERVICE, 950 Pennsylvania Avenue, NW, Washington, DC 20530,
Defendants.
AMENDED COMPLAINT 1. Plaintiffs are a diverse group of women and a Black-led organization in Portland, Oregon, who are leading, participating, and standing in solidarity with historic lawful protests against police brutality and in support of the Black Lives Matter movement. Since the police killing of George Floyd on May 25, 2020, Plaintiffs have joined together to exercise their First Amendment rights to call for social change and an end to systemic racism. Plaintiff Don’t Shoot Portland, a Black-led community-driven organization, has coordinated mutual aid to support peaceful protesters in the city. Individual Plaintiffs Beverley Barnum, Sabrina Cerquera, Demetria Hester, Danialle James, and Dr. Lisa Kipersztok have all participated in peaceful protests. 2. The movement for Black lives of which Plaintiffs are part has gained broad support across the United States, due to the power of the protesters’ message and the courage of their actions. Plaintiffs’ exercise of their First Amendment rights to speak and assemble to advocate for a more just and equal country epitomizes the highest values of our constitutional democracy. 3. Defendants are the U.S. Department of Homeland Security, its purported leaders, its components, and other agencies of the federal government. Rather than protect and defend
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Plaintiffs’ constitutional rights, as they are bound to do by law and their Oaths of Office, Defendants have implemented an unlawful policy to quash Plaintiffs’ speech and end their protests.
4. Beginning on or around July 4, 2020, Defendants launched “Operation Diligent Valor,” an unprecedented deployment of federal agents to (in Defendants’ words) “quell” protests against police brutality by “tak[ing] over” Portland. At Defendants’ direction, federal agents—dressed in military fatigues and toting military gear—have teargassed peaceful protesters, including Plaintiffs; made unlawful arrests without probable cause; and otherwise used violence in an effort to stamp out peaceful and constitutionally protected protests.
5. Plaintiffs, who have been exercising their lawful rights, have been repeatedly injured by Department of Homeland Security (“DHS”) agents on the streets of their city. They have been teargassed night after night, left vomiting and unable to eat or sleep because of the toxic poison blasted at them. They have been shot at over and over—with rubber bullets, bean bags, pepper spray, and a range of other projectiles fired at close range and with brutal effect. They have had flash-bang explosive devices detonated right in front of them. They have been forced to speak and assemble in fear of not just bodily harm, but the possibility of sudden arrest without probable cause.
6. In addition to violating Plaintiffs’ well-established constitutional rights to freedom of speech and assembly, freedom from unreasonable seizures, and due process, Defendants’ actions betray a foundational principle of American democracy: that the federal government exercises only the powers the Constitution authorizes. Other powers, including the general police power, are reserved to the states and their subdivisions. The U.S. Constitution does not permit a federal domestic security or police force. Consistent with those limits,
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Congress has authorized federal law enforcement officials to fulfill only limited functions, where there is a tight nexus to a specific federal interest.
7. As set forth below, Operation Diligent Valor exceeds the bounds of what the law authorizes. According to the White House press secretary and other sources, the asserted authority for the DHS agents’ presence and actions in Portland is 40 U.S.C. § 1315, which allows federal officials to protect federal property. But Defendants’ statements, an internal DHS memorandum, and the conduct of DHS officers on the ground far from the federal courthouse make clear that Operation Diligent Valor actually furthers a DHS policy to intimidate and silence protesters because of their message. Because Defendants’ policy is not in furtherance of protecting federal property, their invocation of § 1315 is purely pretextual.
8. Defendants’ unlawful policy has been directed by Defendant Wolf, who purports to be Acting Secretary of Homeland Security but is not legally serving in this role. He has not received Senate confirmation, reflecting President Trump’s preference for “acting” officials to avoid the oversight and accountability that the confirmation process ensures.
9. Plaintiffs ask this Court to protect them and vindicate their constitutional rights by declaring unlawful and enjoining Defendants’ unlawful policy.
PARTIES 10. Plaintiff Don’t Shoot Portland is a nonprofit nonpartisan organization with a mission of providing community support for activists and organizers working to eradicate gross inequalities in our society. It was founded in 2014. In furtherance of its mission, it provides “mutual aid” to activists and organizers through education and facilitating the collection and distribution of community resources. Don’t Shoot Portland primarily provides “mutual aid” through donated supplies. It has 501(c)(3) status under the Internal Revenue Code.
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11. Plaintiff Beverley “Bev” Barnum is a resident of Portland, Oregon. She organized a group of mothers under the banner of “Wall of Moms” in July 2020 to protect other Black Lives Matters protesters from being injured by federal law enforcement. She has regularly attended Black Lives Matter demonstrations in Portland since July 18, 2020.
12. Plaintiff Sabrina Cerquera is a resident of Portland, Oregon. She has joined many demonstrations throughout Portland in May, June, and July 2020.
13. Plaintiff Demetria Hester is a resident of Gresham, Oregon. She has been attending protests since late May 2020.
14. Plaintiff Danialle James is a resident of Portland, Oregon. She has been attending protests since May 27, 2020.
15. Plaintiff Lisa Kipersztok is a resident of Portland, Oregon, who demonstrated peaceably before federal law enforcement agents were deployed to Portland.
16. Defendant Chad F. Wolf is the purported Acting Secretary of DHS and is sued in his official capacity. Defendant Wolf is responsible for “protect[ing] the buildings, grounds, and property that are owned, occupied, or secured by the Federal Government . . . and the persons on the property” under 40 U.S.C. § 1315. He was nominated to serve as the Secretary of DHS after almost a year of serving as the purported Acting Secretary.
17. Defendant Ken Cuccinelli is the purported Senior Official Performing the Duties of the Deputy Secretary of the DHS and Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Services (“USCIS”), and is sued in his official capacity.
18. Defendant Mark A. Morgan is the purported Senior Official Performing the Duties of Commissioner for U.S. Customs and Border Protection (“CBP”), and is sued in his official capacity.
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19. Defendant Tony H. Pham is the purported Senior Official Performing the Duties of the Director, U.S. Immigration and Customs Enforcement (“ICE”), and is sued in his official capacity.1
20. Defendant L. Eric Patterson is the Director of the Federal Protective Service (“FPS”), and is sued in his official capacity.
21. Defendant the Department of Homeland Security is the executive branch agency of which FPS, CBP, and ICE are part. DHS is an “agency” within the meaning of the Administrative Procedure Act (“APA”), see 5 U.S.C. § 551(1), and its headquarters are in Washington, D.C.
22. Defendant U.S. Customs and Border Protection is an operational component of DHS, and is responsible for enforcing laws concerning the flow of goods and persons entering or exiting the United States. See 6 U.S.C. § 211. CBP is an “agency” within the meaning of the APA, see 5 U.S.C § 551(1), and its headquarters are in Washington, D.C.
23. Defendant U.S. Immigration and Customs Enforcement is an operational component of DHS, and is responsible for preventing cross-border crime and illegal immigration. See 8 U.S.C § 1357. ICE is an “agency” within the meaning of the APA, see 5 U.S.C § 551(1), and its headquarters are in Washington, D.C.
24. Defendant the Federal Protective Service is an operational component of DHS, and is responsible for protecting federal property. See 40 U.S.C. § 1315. FPS is an “agency” within the meaning of the APA, see 5 U.S.C § 551(1), and its headquarters are in Washington, D.C.
1 Defendant Tony H. Pham has been substituted for Matthew T. Albence pursuant to Fed. R. Civ. P. 25(d).
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25. Defendant William Barr is the Attorney General of the United States. He is sued in his official capacity.
26. Defendant Donald W. Washington is the Director of the U.S. Marshals Service (“USMS”), and is sued in his official capacity.
27. Defendant the Department of Justice (“DOJ”) is the executive branch agency of which the U.S. Marshals Service is a part. DOJ is an “agency” within the meaning of the APA, see 5 U.S.C. § 551(1), and its headquarters are in Washington, D.C.
28. Defendant the U.S. Marshals Service is a federal agency within DOJ that provides security for the federal courts, see 28 U.S.C. §§ 561, 566(a). Defendant USMS is an “agency” within the meaning of the APA, see 5 U.S.C. § 551(1), and its headquarters are in Arlington, Virginia.
29. For clarity, we refer to defendants Wolf, Cuccinelli, Morgan, Pham, Patterson, Barr, and Washington as “individual Defendants,” and defendants DHS, CBP, ICE, FPS, DOJ, and USMS as “agency Defendants.”
JURISDICTION AND VENUE 30. This Court has federal question jurisdiction under 28 U.S.C. § 1331 because this action arises under the U.S. Constitution, the Administrative Procedure Act (“APA”), and other federal statutes. 31. The Court is authorized to award the requested declaratory and injunctive relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, the APA, 5 U.S.C. § 706, and its equitable powers.
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32. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(1) and (e)(1). Defendants DHS, CBP, ICE, FPS, and DOJ reside in the District of Columbia. 28 U.S.C. § 1391(c)(2).
FACTUAL ALLEGATIONS A. Led by Plaintiff Don’t Shoot Portland, Plaintiffs and the Portland Community
Lawfully Engage in Black Lives Matter Protests 33. After the police killing of George Floyd on May 25, Portland organizers began to mobilize to protest in support of Black Lives Matter. Portland protesters have shown up, night after night amid the staggering COVID-19 pandemic, to exercise their First Amendment rights to call for social change that ends systemic racism. Beginning as early as July 4, they have been repeatedly attacked by an army of over 100 camouflage-clad federal agents. 34. Don’t Shoot Portland, a Black-led and community-driven organization that is the lead Plaintiff in this lawsuit, has a crucial role in sustaining the movement for Black lives in Portland. Don’t Shoot Portland was founded in 2014 by Teressa Raiford, building upon years of work organizing to facilitate care and support for families who had lost loved ones and to help people become civically engaged to further the Black Lives Matter movement with inclusivity. 35. Don’t Shoot Portland’s mission is to support the Black Lives Matter movement by providing “mutual aid” to activists, organizers, and other individuals wishing to exercise their First Amendment rights to organize, protest, and create art for social change. “Mutual aid” is the voluntary reciprocal exchange of resources for the benefit of all involved. It is how Don’t Shoot Portland expresses its support for Black Lives Matter; it is the organization’s free speech. 36. Since George Floyd’s murder, Don’t Shoot Portland has organized mutual aid to support the Black Lives Matter protests in Portland and the Black community enduring trauma from the event. Public health and safety have been the focus of its mutual aid. Don’t Shoot
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Portland distributes donated protective equipment like face masks and hand sanitizer, first aid kits, baking soda, and other resources that provide relief from tear gas, along with water, food, and assistance with hotel and temporary housing costs and transportation.
37. Don’t Shoot Portland understands, based on scientific research that it facilitated, that tear gas is extraordinarily dangerous to deploy during a pandemic outbreak of a respiratory virus like COVID-19. Because of racism and its impact on economic and health disparities, Black people, Indigenous people, and people of color are more likely to develop, suffer, and face complications from COVID-19 than their white counterparts.
38. Since Operation Diligent Valor started, federal officers have harmed Don’t Shoot Portland’s mission by destroying its mutual aid supplies with tear gas and through other means before the mutual aid was given to the intended recipients.
39. On July 17, 2020, Ms. Barnum watched from her home, in horror, a video on social media showing unidentified and armed federal officers in military uniforms grabbing a protester and putting them in an unmarked van. She saw news coverage of the federal officers beating, gassing, and shooting protesters with “less-lethal” weapons. She never thought something like that could happen in the United States of America. She felt compelled to do something as a mother, as a Portlander, and as an American who believes in the right to protest.
40. Ms. Barnum wrote a post in a working moms Facebook group, calling for moms to join the protests the next day and to form a “Wall of Moms” to protect protesters, especially the youth, from the federal officers’ assaults. Within an hour, seventy moms had responded and were eager to stand up for those protesting police violence against Black Americans. The number kept growing.
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41. Ms. Barnum reached out to Don’t Shoot Portland for guidance on organizing the beginning of a movement of moms standing for racial justice.
42. The first night that the Wall of Moms formed, July 18, the Moms attended a vigil organized by Don’t Shoot Portland for Shai’India Harris, a young Black woman whose murder was never investigated because Portland police claimed they were too busy policing the protests.
43. Mothers forming the Wall of Moms then went to the street outside the Mark O. Hatfield U.S. Courthouse to create a human barrier for the young protesters who were giving speeches. The Moms did not throw anything or threaten officers in any way; they just shouted, “Leave the kids alone!” They hoped that the presence of mothers in regular clothing would remind the federal officers that these protesters were young people calling for social change. That hope met a brutal reality when federal officers, dressed for war, blasted everyone, including Ms. Barnum and other mothers in the Wall of Moms linked arm-in-arm, with tear gas, flash-bang grenades, and other munitions.
44. No matter how much harm her body has suffered, Ms. Barnum has continued to protest to exercise her First Amendment rights and protect others doing the same to further the movement for Black lives. She and others in the Wall of Moms attend the protests in solidarity with Portlanders calling for racial justice, withstanding violence from federal law enforcement.
45. Among the protesters peacefully exercising, or wishing to exercise, their free speech rights in Portland are Plaintiffs Sabrina Cerquera, Demetria Hester, Danialle James, and Lisa Kipersztok.
46. Ms. Cerquera is a 22 year-old Brown woman who has witnessed and experienced systemic racism. She feels strongly compelled to stand up for her Black and Brown peers to end police brutality and white supremacy. After police officers killed George Floyd on May 25, she
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joined demonstrations in Portland to protest the violence and death Black Americans disproportionately suffer. Between May 29 and June 23, Ms. Cerquera protested eight times. She was teargassed by Portland police for the first time on May 31, and was traumatized by the experience. Having seen the assault of federal officers on protesters, Ms. Cerquera’s fear for her safety restrained her from participating in protests for a full month, but the killings of Black Portlanders Dominque Dunn and Shai’India Harris reminded her of the importance of exercising her First Amendment rights, and she rejoined the protests. Over multiple nights, she was hit with pepper spray that federal agents deploy to violently disperse gathered demonstrators.
47. Ms. Hester is a Black mother and grandmother who has been joining protests to fight against the legacy of white supremacy. George Floyd’s killing came almost three years exactly after Ms. Hester was assaulted in Portland by Jeremy Christian, who made racist statements during the assault. The day after that assault, Christian stabbed and killed two men who were protecting two young Black women from Christian’s attacks on a Portland light rail train. Ms. Hester has suffered injury from the federal officers’ tear gassing.
48. Ms. James is a Black mother who has been peacefully demanding justice and accountability not only for the death of George Floyd, but the innumerable other victims of police brutality in Portland, since late May. Ms. James has suffered injury from the federal officers’ use of tear gas and projectile munitions such as paint balls, pepper-spray balls, and rubber bullets.
49. Dr. Kipersztok is a Portland family physician who cares for underserved community members facing personal discrimination. She is motivated to join the Black Lives Matter protests out of a desire to dismantle the structural racism against Black Americans in healthcare and throughout our society. Dr. Kipersztok participated in peaceful demonstrations for
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racial justice in June. In mid-July, Dr. Kipersztok learned that the federal government had dispatched federal law enforcement agents in Portland, and that the federal agents were deploying tear gas to disperse crowds—mere weeks after protesters had won a court victory restricting local police officers’ ability to use the chemical weapon. Dr. Kipersztok initially intended to exercise her right of protest against this show of federal force against fellow Portlanders. After watching live feeds of the downtown protests and reading reports, however, she feared that she could only attend these demonstrations at serious risk of debilitating injury at the federal agents’ hands.
B. President Trump Seeks to Create a Federal Police Force 50. The brutality that Plaintiffs have faced at the hands of federal agents is the result
of an unlawful policy that Defendants have established to quell lawful protest and intimidate protesters.
51. This reflects President Trump’s desire, dating back to the earliest days of his administration, to “take over” America’s cities. Five days after his inauguration, he threatened on Twitter to “send in the feds” to Chicago to deal with rising homicide rates there.2 This year, President Trump, in consultation with Defendant Barr, Defendant Wolf, and others, has seized on nationwide civil rights protests against police brutality as an opportunity to use federal forces—not to defend civil rights, but to quell the protests.
52. On May 29, three days after protests began in Minneapolis, the president Tweeted: “Either the very weak Radical Left Mayor, Jacob Frey, get his act together and bring the City under control, or I will send in the National Guard & get the job done right.”3 He
2 Donald J. Trump (@realDonaldTrump), Twitter (June 30, 2017, 5:48 a.m.), https://perma.cc/4R5W-G26Y. 3 Donald J. Trump (@realDonaldTrump), Twitter (May 29, 2020, 12:53 a.m.), https://perma.cc/SJ8G-TWHL.
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continued, “These THUGS are dishonoring the memory of George Floyd, and I won’t let that happen . . . . Any difficulty and we will assume control but, when the looting starts, the shooting starts.”4
53. President Trump’s response to the civil rights protests, and specifically his insistence that they be shut down, stands in sharp contrast to his response to anti-quarantine protesters earlier this year. When armed protesters objecting to COVID-19 quarantine measures rallied in the Michigan state house, President Trump called them “very good people” and urged Michigan Governor Gretchen Whitmer to “give a little” in response to the protesters’ objections.5
54. Throughout the next month, President Trump, with backing by Attorney General Barr and others, continued to reinforce his willingness to override local law enforcement, notably during his address to the nation on June 1: “I am your President of law and order . . . . If a city or a state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.”6
55. Minutes later, the president previewed his strategy at Lafayette Square, near the White House. Just after the speech, federal law enforcement and the D.C. National Guard forcibly removed thousands of peaceful protesters from Lafayette Square with pepper-spray balls, smoke canisters, flash-bang grenades, shields, and horses. After the protesters were cleared, President Trump, Attorney General William Barr, Secretary of Defense Mark Esper, and others walked from the White House through Lafayette Square for a photo opportunity at St. John’s Episcopal Church. 4 Donald J. Trump (@realDonaldTrump), Twitter (May 29, 2020, 12:53 a.m.), https://perma.cc/X6CV-K2TM (“This Tweet violated the Twitter Rules about glorifying violence. However, Twitter has determined that it may be in the public’s interest for the Tweet to remain accessible.”). 5 Donald J. Trump (@realDonaldTrump) Twitter (May 1, 2020, 7:02 a.m.), https://perma.cc/DTW7-Y2R2. 6 Statement by the President, WhiteHouse.gov (June 1, 2020), https://perma.cc/8U47-9J2M.
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56. It is not coincidental that the president’s threats to deploy the military and armed federal officers have been aimed at liberal and progressive cities that he views as home to his political opponents.
57. On June 3, he claimed that “super-liberal mayors” in cities like Minneapolis were undermining local law enforcement, requiring his administration to bring in the National Guard to “[take] care of it.”7
58. And on July 20, President Trump told reporters his administration was taking action “[b]ecause we’re not going to let New York and Chicago and Philadelphia and Detroit and Baltimore and all of these—Oakland is a mess. We’re not going to let this happen in our country. All run by liberal Democrats. All run, really, by the radical left.”8
C. President Trump Unlawfully Places Allies in Leadership Roles at the Department of Homeland Security Without Senate Confirmation 59. The Department of Homeland Security is the nation’s largest law enforcement
agency, with more than 60,000 law enforcement agents working under its auspices. 60. But President Trump has installed an unprecedented number of top officials at
DHS without seeking the advice and consent of the Senate, as the Constitution and federal law require. Instead, his hand-picked individuals lead this crucial agency without any opportunity for Congress to vet or approve their selection.
61. The last Senate-confirmed DHS Secretary, Kirstjen Nielsen, resigned in April 2019. The current purported Acting Secretary of the Department of Homeland Security, Defendant Wolf, is the second consecutive person to serve in that role in an acting capacity,
7 Tauren Dyson, Trump to Newsmax TV: Nation Really Needs “Law and Order,” Newsmax (June 30, 2020), https://perma.cc/FT5N-XT5G. 8 Remarks by President Trump on Phase Four Negotiations, WhiteHouse.gov (July 20, 2020), https://perma.cc/DC8L-KAGT.
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without going through Senate confirmation for the post. There has been no Senate-confirmed Secretary of Homeland Security for more than 500 days.
62. As detailed in paragraphs 130-155 below, Defendant Wolf’s appointment as Acting Secretary violates federal law.
63. Defendant Cuccinelli is the Senior Official Performing the Duties of the Deputy Secretary of Homeland Security and the Senior Official Performing the Duties of the Director of U.S. Citizenship and Immigration Services. Cuccinelli has never been confirmed by the Senate to any senior position within DHS.
64. A judge in the U.S. District Court for the District of Columbia held that Cuccinelli’s appointment at USCIS violates the Federal Vacancies Reform Act (“FVRA”), one of the federal laws governing the use of acting officials. See L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1 (D.D.C. 2020).
65. Defendant Morgan is the Senior Official Performing the Duties of the Commissioner of U.S. Customs and Border Protection. Morgan has never been confirmed by the Senate to any senior position within DHS.
66. Defendant Pham is the Senior Official Performing the Duties of the Director of Immigration and Customs Enforcement. Pham has never been confirmed by the Senate to any position within DHS. ICE has not had a Senate-confirmed director during the entirety of President Trump’s time in office.
67. The large number of acting officials at DHS, and throughout the Trump administration, is part of a deliberate strategy, as the president explained in 2019: “I like ‘acting’ because I can move so quickly. It gives me more flexibility.”9
9 Face the Nation (@FacetheNation), Twitter (Feb. 3, 2019, 2:00 p.m.), https://perma.cc/3UCXA3R9.
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68. But the president’s reliance on acting officials deprives Congress of its constitutional role to oversee appointments to key positions within the government, and removes a crucial check on the president’s exercise of power. The consequences are now playing out on the streets of Portland.
D. Defendants Develop a Pretextual Scheme to Deploy Federal Agents as a National Police Force in Portland and Other Cities to Quash Protests for Black Lives 69. As President Trump made repeated threats to send federal law enforcement to
“take over” American cities in June and July, Defendants sprang into action to carry them out. 70. On June 26, President Trump issued an executive order on “Protecting American
Monuments, Memorials, and Statues and Combating Recent Criminal Activity.” The executive order purports to respond to “[s]tate and local public officials’ abdication of their law enforcement responsibilities” with respect to the nationwide protests against police brutality. The order directs the Secretary of Homeland Security to provide “personnel to assist with the protection of Federal monuments, memorials, statues, or property.”10
71. Pursuant to President Trump’s executive order, Defendant Wolf announced on July 1 the formation of the Protecting American Communities Task Force (PACT) within DHS. PACT was charged with “conduct[ing] ongoing assessments of potential civil unrest or destruction and allocat[ing] resources to protect people and property,” including “potential surge activity to ensure the continuing protection of critical locations.”11
72. Defendants selected Portland, Oregon, for the first deployment of PACT resources.
10 Executive Order on Protecting American Monuments, Memorials, and Statues and Combating Recent Criminal Violence, WhiteHouse.gov (June 26, 2020), https://perma.cc/V6KL-QGE5. 11 Press Release, DHS Announces New Task Force to Protect American Monuments, Memorials, and Statutes, DHS (July 1, 2020), https://perma.cc/8ZJ9-NGEQ.
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73. On or about July 4, Defendant Wolf ordered federal officers from FPS, ICE, and CBP—all components of DHS—to Portland, in what Defendants have termed Operation Diligent Valor. Since the protests began in May, the Hatfield courthouse and other nearby buildings have had graffiti written on them and suffered property damage such as broken windows. This damage would become the purported justification for the deployment of more than one hundred federal agents to Portland—an unprecedented use of DHS agents to police an American city.
74. Ordinarily, responsibility for protecting federal property lies with FPS, which has over 1,000 law enforcement officers and investigators.
75. In addition, the Secretary of Homeland Security may transfer other DHS employees to FPS specifically “for duty in connection with the protection of” federal property. 40 U.S.C. § 1315(b)(1). DHS employees purportedly designated as FPS agents and officers are limited to actions only “to the extent necessary to protect the property and persons.” Id.
76. Defendant Wolf purportedly designated approximately 114 ICE and CBP agents as FPS agents for purposes of Operation Diligent Valor.
77. DHS’s own Office of Inspector General later found this delegation to be unlawful.12 Moreover, extensive contemporaneous evidence demonstrates that the DHS agents deployed to Portland were instructed to act unlawfully pursuant to DHS’s policy of using unlawful force to quash First Amendment protected protests based on the content of the protesters’ speech.
78. According to a report released on November 2, 2020 by DHS’s Office of Inspector General, Defendant Wolf did not act lawfully in designating other DHS personnel as FPS agents for the purposes of Operation Diligent Valor. 12 DHS OIG, FPS Did Not Properly Designate DHS Employees Deployed to Protect Federal Properties under 40 U.S.C. § 1315(b)(1) (Nov. 2, 2020), https://perma.cc/3ZED-3AT9 [hereinafter OIG Report].
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79. According to that report, on October 15, 2019, Kevin McAleenan, Defendant Wolf’s immediate predecessor as purported Acting Secretary, approved a memorandum delegating the authority to designate DHS employees as law enforcement officers under 40 U.S.C. § 1315 to the Under Secretary for Management. On December 18, 2019, Senior Official Performing the Duties of the Under Secretary for Management Randolph Alles further designated that authority to the FPS Director, specifying that the ability to designate “may not be re-delegated.”
80. On June 4, 2020, the FPS Director, Defendant Patterson, circulated memoranda to various heads of DHS components; the memoranda contained language purporting to designate recipients to serve as FPS officers and agents pursuant to 40 U.S.C. § 1315. On June 29 and July 31, Defendant Patterson circulated additional, identical memoranda to other DHS component heads.
81. None of the memoranda circulated by Defendant Patterson included a list of employees designated as FPS agents pursuant to § 1315, despite claiming to do so.
82. Thus, Defendant Patterson never lawfully designated any employees to serve as FPS agents pursuant to § 1315. The alleged designation of employees was therefore itself unlawful.
83. Moreover, as a result of the defective designations, several DHS employees were deployed to Portland in a law enforcement capacity without first receiving proper training on 40 U.S.C § 1315. It is therefore unsurprising that the untrained DHS personnel unlawfully deployed to Portland under § 1315 also acted pursuant to an unlawful policy in violation of the First, Fourth, and Fifth Amendments.
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84. Some of the agents that DHS attempted to designate as FPS agents include members of the Border Patrol Tactical Unit (“BORTAC”), an elite unit that typically serves high-risk warrants and raids stash houses. BORTAC agents are trained to use weapons ranging from pistols to sniper rifles, but they are not trained to police mass protests protected by the First Amendment.
85. Moreover, as noted by the DHS Office of Inspector General’s report, the agents likely never received trainings on the limits of their authority when deployed under DHS’s § 1315 authority.
86. Upon information and belief, as part of Operation Diligent Valor, DHS established a policy that bore little connection to the limited purpose of the protection of federal property. Specifically, DHS established a policy to intimidate and deter protesters because of their views and beliefs through a number of means: surveillance; the use of militarized and unidentified force; the excessive deployment of crowd-control measures such as tear gas, pepperspray balls, and less-lethal munitions; and warrantless arrests or custodial detentions without probable cause (“the Policy”).
87. U.S. Marshals Service officers were also present in Portland, operating side-byside with DHS agents. Upon information and belief, Defendants Barr and Washington directed USMS agents to follow the DHS Policy.
88. Statements by White House and administration officials reveal that Operation Diligent Valor and the Policy are intended to quell lawful protests, not to protect federal property.
89. At a White House event on July 13, President Trump claimed that “[f]ar-left mayors are escalating the anti-cop crusade, and violent crime is spiraling in their cities.” He
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pledged to be “very strong on law enforcement” by sending federal officers to “liberally run” jurisdictions—“even if we have to go in and take over cities.”13
90. President Trump admitted that federal agents were deployed to Portland specifically to quell protests: “We’ve done a great job in Portland. Portland was totally out of control, and they went in and, I guess, we have many people right now in jail. And we very much quelled it. And if it starts again, we’ll quell it again very easily.” Id.
91. In a Fox News interview on July 17, Defendant Cuccinelli asserted that President Trump is determined “to help restore peace to these violent cities,” including Portland.14
92. On July 20, Defendant Cuccinelli told CNN, “We will maintain our presence,” and admitted, “When that violence recedes and those threats recede, that is when we would ratchet back down to what I would call normal presence defending and protecting federal facilities.”
93. At times, federal officials have suggested that they need permission from local and state governments to send agents to the cities. At his July 13 event, President Trump acknowledged that the federal government is “supposed to wait for [cities] to call, but they don’t call.”15
13 Press Release, White House, Remarks by President Trump in a Roundtable with Stakeholders Positively Impacted by Law Enforcement (July 13, 2020), https://perma.cc/L3EX-Y8S9. 14 DHS Urges Portland to Accept Federal Help as the City Sees More Violence, Fox News (July 17, 2020), https://video.foxnews.com/v/6172418473001#sp=show-clips. 15 Press Release, White House, Remarks by President Trump in a Roundtable with Stakeholders Positively Impacted by Law Enforcement (July 13, 2020), https://perma.cc/L3EX-Y8S9.
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94. Similarly, in a Fox News interview on July 6, Defendant Wolf reiterated that DHS needed “to be invited and have those state and local authorities ask for the federal government’s help.”16
95. But Portland officials did not request the deployment of federal law enforcement officers, and have demanded that they leave the cities.
96. On July 14, Oregon Governor Kate Brown asked Defendant Wolf to withdraw the federal officers from the city, saying that “it’s like adding gasoline to a fire.”
97. Five days later, Portland Mayor Ted Wheeler said that the federal presence in the city is exacerbating the situation. Federal officers “are not wanted here,” he said. “We haven’t asked them here. In fact, we want them to leave.”
98. Portland City Commissioner Jo Ann Hardesty also called on federal officers to leave, saying that they had “escalated tensions and put countless Portlanders exercising their First Amendment rights in greater danger.”
99. Not only have Defendants refused to end the deployment of federal agents to Portland, they have promised to send federal agents from DHS and DOJ to a number of other cities, including Seattle and Chicago. Senior administration officials reportedly told reporters that they are prepared to send federal agents anywhere there is unrest.
E. Federal Agents Attempt to “Quell” Lawful Protests in Portland 100. Pursuant to the Policy, since on or around July 4, federal agents have engaged in
an all-out effort to “quell” the Portland protests in violation of the First, Fourth, and Fifth Amendments. This conduct demonstrates that their mission far exceeds the stated purpose of protecting federal property. 16 Joshua Nelson, DHS Secretary Wolf Says ‘Criminal Mobs’ Taking Over Cities, Not Peaceful Protesters, Fox News (July 6, 2020), https://www.foxnews.com/media/acting-dhs-secretarycriminal-mobs-are-taking-over-cities-federal-provide-assistance.
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101. In accordance with the Policy, DHS personnel have engaged in a program of surveillance, unlawful arrests, and excessive force designed to intimidate and deter protesters.
102. Federal agents have extended their operations far from the immediate vicinity of the courthouse. Plaintiff James has seen the federal agents drive the protesters as far as five blocks away from the courthouse, using clubs and batons to force them to move.
103. On July 24, federal agents assaulted protesters outside the federal courthouse with tear gas, flash-bang grenades, and pepper-spray balls, and drove the crowd more than two blocks away from the courthouse, declaring, “This is an unlawful assembly.” When the agents’ advance stopped, the courthouse was out of view.
104. According to a DHS briefing memorandum prepared for Defendant Wolf, the DHS personnel assigned to Operation Diligent Valor “do not specifically have training in riot control or mass demonstrations. Moving forward, if this type of response is going to be the norm, specialized training and standardized equipment should be deployed to responding agencies” (emphasis added).
Widespread Surveillance of Protesters 105. As referenced above, in furtherance of the Policy and in connection with President Trump’s June 26 executive order, DHS launched an expansive program of domestic surveillance that goes far beyond the limited need to protect federal property. Pursuant to an internal unclassified DHS document, the DHS Office of Intelligence & Analysis has authorized its intelligence officers to surveil protesters if the agency determines that they pose “[t]hreats to damage or destroy an public monument, memorial, or statue”—“regardless of whether such structures are situated on Federal property” (emphasis added).17
17 Steve Vladeck & Benjamin Wittes, DHS Authorizes Domestic Surveillance to Protect Statues and Monuments, Lawfare (July 20, 2020), https://perma.cc/AC7M-FLE3.
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106. The DHS intelligence directive further indicates that DHS analysts can collect information about “individuals or groups” whom they “reasonabl[y] belie[ve]” threaten to damage or destroy any public monument, including “their tactics, techniques, or procedures,” and “information that otherwise informs an overall assessment that threats to [monuments] will materialize.”
107. In other words, Defendants are operating under a directive that minor property damage to a non-federal monument or statue—a “threat” the agency for the first time characterizes as a matter of homeland security—justifies a significant expansion of the sweep of the federal government’s authority to collect intelligence on its residents.
Unlawful Warrantless Arrests 108. Upon information and belief, the Policy authorizes agents to arrest or detain protesters without probable cause, in retaliation for their participation in protests against police brutality. Many of these arrests have been made by agents in unmarked military-style camouflage uniforms, operating out of unmarked vans. That bears no resemblance to the usual modus operandi of federal courthouse protective services. 109. For example, at approximately 2 a.m. on Wednesday, July 15, Mark Pettibone and Conner O’Shea were walking home from a peaceful protest in Portland when an unmarked van stopped near them, two blocks away from the Mark O. Hatfield federal courthouse. 110. According to O’Shea, agents “in camo jump[ed] out and start[ed] charging at [them].” The men were not wearing badges or other identifying insignia on their uniforms. 111. The men—who have since been identified as CBP officers—arrested Pettibone, searched him, and took him to the Hatfield courthouse, where he was detained in a holding cell.
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Officers read him his Miranda rights. After he declined to answer their questions, he was released. Officers never charged Pettibone with a crime or explained why he had been stopped.
112. In its own account of one such warrantless arrest on July 15, the federal government admitted that the federal agents never had probable cause.
113. The video of the July 15 arrest shows two combat-uniformed, masked, and helmeted federal officers grabbing a man from a sidewalk outside of federal property and pushing him into an unmarked van, which the officers then drive away.
114. As FPS Deputy Director Richard “Kris” Cline described in a July 21 press conference, the two CBP officers had followed the man and forcibly removed him to another location to question him.
115. Cline admitted that the officers were interested in the man because they had seen him among a crowd that included an individual aiming a laser at officers’ eyes. But they had no specific reason to believe that he had aimed the laser pointer.
1. The officers never had probable cause to detain the man. Standing near another individual who may have broken the law cannot provide reasonable grounds for law enforcement officers to arrest someone. And, indeed, after nearly twenty minutes of interrogation, Cline admitted that the officers “released the individual because they did not have what they needed”—namely, probable cause.
Use of Excessive Force Against Peaceful Protesters 116. Also pursuant to the Policy, federal agents have committed physical assaults against peaceful protesters who pose no threat to federal property, including the repeated use of tear gas, flash-bang grenades, and other munitions against groups of protesters in downtown Portland.
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117. Tear gas causes irritation to the area of contact within seconds of exposure, including eye burning, excessive tearing, blurred vision, and redness; runny nose and nasal burning and swelling; mouth burning, irritation, difficulty swallowing, and drooling; chest tightness, coughing, choking sensation, wheezing, and shortness of breath; and burns and skin rash. Some people experience nausea and vomiting. All of these symptoms can last for weeks after exposure.
118. The use of tear gas is, by its very nature, indiscriminate. Anyone in the area will breathe it in and be harmed by the gas.
119. Federal agents in Portland acting pursuant to the Policy have used tear gas in a predictable pattern. In her near-nightly attendance at the protests, Plaintiff James has observed that federal agents begin to fire tear gas between 11:30 p.m. and 1:00 a.m. to disperse the crowd, even when there has been no indication of protester violence or property damage, and even when federal agents are located safely behind a fence outside the courthouse. She has witnessed federal agents shoot protesters with rubber bullets, pepper-spray balls, and other munitions even when they have not been engaged in acts of violence and even when they have stood blocks away from the federal courthouse and posing no threat to the courthouse.
120. Federal agents have also assaulted multiple protesters directly, on several occasions leading to serious injuries.
121. For example, on July 11, federal officers from the U.S. Marshals Service shot and severely injured a protester, Donovan LaBella, with a less-lethal impact munition while he was peacefully protesting across the street from the Hatfield federal courthouse. LaBella was rendered unconscious and bleeding from the assault.
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122. His skull was fractured, and he underwent facial reconstructive surgery in the hours after the encounter. LaBella also had a tube in his skull to drain blood and had vision problems in one eye from the injuries sustained. He continues to suffer significant complications, including difficulty with impulse control, which may be a permanent brain injury.
123. In another incident in the early hours of July 18, a wall of heavily armed federal agents, wearing gas masks and helmets, fired pepper-spray balls at an unarmed and unprotected nude protester.
124. So-called “pepper-spray balls” are projectiles that release a powdered substance that has effects similar to pepper spray. They therefore carry the dangers inherent in any projectile that is shot at someone, as well as the dangers of pepper spray.
125. At least one graphic video shows a dozen federal agents shooting pepper-spray balls in quick succession at the unnamed protester, dubbed “Naked Athena,” as she walked toward the agents standing guard at an intersection in downtown Portland. “Athena” was wearing nothing but a face mask and stocking cap.
126. Later the same day, U.S. Naval Academy graduate Christopher David attended his first-ever protest in front of the Hatfield federal courthouse. He planned to ask the officers about the oaths they had sworn to the Constitution, which he believed they were violating.
127. As David approached the U.S. Marshals in front of the courthouse, he stayed in the middle of the street and did not step onto federal property. Nonetheless, federal officers pushed him back, and when he did not retreat, they began beating him with batons.
128. An officer pepper-sprayed his face from point-blank range. The pepper spray burned David’s eyes and blurred his vision. As he sought shelter, he walked into a cloud of gas
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that “made him cough and retch.” David, a former member of the Navy’s Civil Engineer Corps, believes that he “was walking through a giant cloud of CS gas.”
129. David later learned at the hospital that the officers had broken his right hand in two places. He will need reconstructive surgery and as a result of the beating is no longer going out to protest.
F. Defendant Wolf Was Unlawfully Purporting to Serve as Department of Homeland Security Secretary When He Enacted the Policy and Ordered the Deployment of Federal Agents 130. Defendant Wolf has enacted the Policy and purportedly designated ICE and CBP
agents as FPS agents for purposes of Operation Diligent Valor despite the fact that he has no legal authority to do so. Defendant Wolf’s exercise of the functions and duties of the Office of the DHS Secretary violates the Constitution and other applicable federal laws.
131. Defendant Wolf has purported to be Acting Secretary of the Department of Homeland Security since November 13, 2019, but he has no legally valid claim to that title. He therefore lacked authority to promulgate the Policy or to designate and deploy DHS employees as FPS agents. Those actions are thus illegal and void.
Legal Background 132. The Appointments Clause of the U.S. Constitution provides that the president shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. U.S. Const. art. II, § 2, cl. 2.
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133. The Secretary of Homeland Security is a “principal” (rather than “inferior”) Officer, and thus the Appointments Clause requires that the person holding that office be appointed by the President “with the Advice and Consent of the Senate.” Id.
134. And federal statutory law explicitly requires the Secretary of Homeland Security to be nominated by the president and confirmed by the Senate. See 6 U.S.C. § 112(a)(1).
135. The Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq. (“FVRA”), is the “exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency . . . for which appointment is required to be made by the President, by and with the advice and consent of the Senate,” unless a statute provides otherwise. 5 U.S.C. § 3347(a). Among its many provisions, the FVRA limits the time during which an office may be filled by an acting official. In general, “the person serving as an acting officer . . . may serve in the office . . . for no longer than 210 days beginning on the date the vacancy occurs.” Id. § 3346.
136. The misuse of acting officials, in violation of the Advice and Consent Clause, has been a chronic abuse of the Trump administration, including at the U.S. Department of Justice.
137. In the case of DHS, an agency-specific statute—the Homeland Security Act (“HSA”)—rather than the FVRA, governs the order of succession for the position of Acting Secretary of Homeland Security when the office of the Secretary is vacant. See 6 U.S.C. § 113(a)(1)(A), (g). Thus, when the Office of the DHS Secretary is vacant, the president lacks the authority to select an acting officer under the FVRA.
138. Specifically, the HSA provides that vacancies in the Office of the Secretary of Homeland Security are to be filled by the Deputy Secretary of Homeland Security and then, if that Office is likewise vacant, by the Under Secretary for Management. Id. § 113(a)(1)(A),
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(g)(1). Where the Offices of both the Deputy Secretary of Homeland Security and Under

Secretary for Management are vacant, the HSA provides the option of a secretary-established

order of succession. Id. § 113(g)(2).

139. DHS has established multiple orders of succession and/or delegations pertaining

to the Office of the Secretary and other DHS positions. Those documents are contained in a

broader directive, entitled DHS Orders of Succession and Delegations of Authorities for Named

Positions, Dep’t of Homeland Sec., Delegation No. 00106, Revision No. 08.5 (Dec. 15, 2016)

(“DHS Orders”).

140. From at least December 15, 2016, through and beyond April 11, 2019, Section

II.A of the DHS Orders stated in full that: “In case of the Secretary’s death, resignation, or

inability to perform the functions of the Office, the orderly succession of officials is governed by

Executive Order 13753, amended on December 9, 2016.” Id. (emphases added).

141. Executive Order 13,753, in turn, set the order of succession at DHS in cases of

resignation of the Secretary. That order establishes that succession to the Acting Secretary role

must be, in order:

i.

Deputy Secretary of Homeland Security;

ii.

Under Secretary for Management;

iii.

Administrator of the Federal Emergency Management Agency;

iv.

Under Secretary for National Protection and Programs;

v.

Under Secretary for Science and Technology;

vi.

Under Secretary for Intelligence and Analysis; and

vii.

Commissioner of U.S. Customs and Border Protection.

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142. From at least December 15, 2016, through and beyond April 11, 2019, Section II.B of the DHS Orders additionally provided: “I [Secretary of Homeland Security] hereby delegate to the officials occupying the identified positions in the order listed ([at] Annex A), my authority to exercise the powers and perform the functions and duties of my office, to the extent not otherwise prohibited by law, in the event I am unavailable to act during a disaster or catastrophic emergency.” DHS Orders § II.B (emphases added).
143. As of April 10, 2019, Annex A, which applied only when the Secretary is “unavailable to act during a disaster or catastrophic emergency,” placed the Commissioner of U.S. Customs and Border Protection third, behind the Deputy Secretary of Homeland Security and the Under Secretary for Management. Id., Annex A. If, however, the Secretary of Homeland Security resigned, the Commissioner of U.S. Customs and Border Protection remained seventh in the standard order of succession. See Exec. Order No. 13,753 § 1.
Secretary Nielsen’s Resignation and Installation of Kevin McAleenan as Purported Acting Secretary 144. The last Senate-confirmed Secretary of Homeland Security, Kirstjen Nielsen, resigned her position effective no later than April 10, 2019. 145. On or about April 9 or 10, 2019, Nielsen issued an amendment to Annex A of the DHS Orders (“April 2019 Amendment”). Again, by its explicit terms Annex A only applies when the Secretary is “unavailable to act during a disaster or catastrophic emergency.” The only action directed by the April 2019 Amendment was to “strik[e] the text of such Annex [A] in its entirety and insert” a different list of positions “in lieu thereof.” The inserted text listed the Commissioner of U.S. Customs and Border Protection third behind the Deputy Secretary of Homeland Security and Under Secretary for Management. The Amendment to Annex A labeled
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and identified the Annex not as an “order of succession,” but instead as an “order for delegation of authority.”
146. Annex A did not—and does not—apply to succession in the case of resignation of the Secretary of Homeland Security. The April 2019 Amendment did not direct any changes to the text of Section II.A of the DHS Orders. Thus, after faithfully and fully applying the April 2019 Amendment, Section II.A of the DHS Orders still required following the order of succession specified in Executive Order 13,753 in the event of a Secretary’s resignation.
147. Despite the order of succession, on April 11, 2019, Kevin McAleenan, who was then serving as CBP Commissioner, purported to assume the position of Acting Secretary.
148. Under the DHS Orders, however, two other Senate-confirmed individuals were ahead of McAleenan to succeed to that Office: Christopher Krebs, who then served as the Senate-confirmed Under Secretary for National Protection and Programs, and David Glawe, who then served as the Senate-confirmed Under Secretary for Intelligence and Analysis.
149. Because McAleenan’s purported succession was unlawful under the HSA and DHS Orders of Succession and Delegations, he had no valid legal claim to the Office of Acting DHS Secretary and could not lawfully exercise the authority of that office.
McAleenan’s Resignation and Defendant Wolf’s Purported Succession to the Office of Acting DHS Secretary
150. On November 8, 2019, the 211th day of McAleenan’s purported tenure, he issued a directive attempting to amend the order of succession for the Secretary of Homeland Security to elevate Under Secretary for Strategy, Policy, and Plans to be fourth in line to lead the agency. Unlike Secretary Nielsen’s April 2019 Amendment, McAleenan did purport to change Section II.A of the DHS Orders such that, like Section II.B, it would now rely upon Annex A to establish the order of succession; thus Annex A for the first time would apply in the case of resignation by
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the Secretary of Homeland Security. See Amendment to the Order of Succession for the Secretary of Homeland Security. McAleenan’s attempted change would have been superfluous if Annex A had otherwise already applied in the case of resignations.
151. McAleenan likewise purported to change the order of the positions listed in Annex A, moving the position of Under Secretary for Strategy, Policy, and Plans to fourth in line, behind only the then-vacant Offices of Deputy Secretary of Homeland Security and Under Secretary for Management, as well as the Office then held by McAleenan, Commissioner of U.S. Customs and Border Protection. Id.
152. McAleenan’s attempted directive was without force of law because McAleenan was invalidly serving under the applicable DHS order of succession. Furthermore, even if McAleenan was appointed under the FVRA, he had exceeded the 210-day time limit for actingofficial service set forth in that statute.
153. McAleenan thereafter resigned. On November 13, 2019, relying on McAleenan’s invalid succession directive, Defendant Wolf, who had been confirmed as Under Secretary for Strategy, Policy, and Plans on that same day, purported to become Acting Secretary of Homeland Security.
154. Wolf could not have served as Acting Secretary of Homeland Security, however, because McAleenan was without authority to make changes to DHS’s succession order.
155. Furthermore, Wolf could not have served as Acting Secretary under the FVRA because the 210-day limit on such service expired before he purported to assume the Office. On November 6, 2019, the Office of the DHS Secretary had been vacant for 210 days since April 10, 2019, the date that former Secretary Nielsen purported to leave office. After November 6, 2019, at the latest, the FVRA required the office to “remain vacant” until the president submitted a new
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nominee for Senate confirmation. 5 U.S.C. § 3348(b)(1). Defendant Wolf began serving as Acting DHS Secretary on November 13, 2019, after the 210-day period under the FVRA had passed.
G. The Unlawful Policy Directed by Defendant Wolf and other Defendants Has and Continues to Injure Plaintiffs 156. Defendants’ unlawful policy has injured each of the Plaintiffs in concrete ways.
Defendants have frustrated Don’t Shoot Portland’s core organizational mission of advocating for its views about police mistreatment of Black people. Defendants have also forced the organization to divert resources in order to address and respond to the challenged federal Policy. In addition, the individual Plaintiffs have suffered actual bodily injury from Defendants and continue to fear additional bodily injury. They have suffered economic injury in required expenses to protect themselves from Defendants and medical costs. And they have suffered constitutional injury through violation of their First, Fourth and Fifth Amendment rights.
Don’t Shoot Portland’s Mission Is Frustrated and It Is Forced to Divert Substantial Resources 157. As set forth above, the mission of Don’t Shoot Portland is to advocate and
provide support for individuals wishing to exercise their First Amendment rights to organize, protest, and create art for social change. In addition, a substantial activity of Don’t Shoot Portland is to provide mutual aid and support to Black Lives Matter protesters to enable them to engage in First Amendment activity in safe and healthy ways.
158. A particular focus of the organization has been to supply Black Lives Matter organizers with materials to protect protesters during the COVID-19 pandemic. In particular, it provides organizers with donated personal protective equipment like facemasks and hand sanitizer; first aid kits; baking soda and other items to provide relief from tear gas; as well as
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food, water, temporary shelter, and transportation. The supplies provided by Don’t Shoot Portland are all lawful and used to protect the health of peaceful protesters.
159. The unlawful deployment of federal officers has made it substantially more difficult for Don’t Shoot Portland to advance its mission of facilitating and supporting First Amendment activity in support of Black lives. As a result of the Policy, participating in lawful protests has become more difficult and dangerous.
160. Defendants’ unlawful Policy has also caused the damage and destruction of Don’t Shoot Portland’s property. Since federal troops have come to Portland, Don’t Shoot Portland has frequently received calls from organizers engaged in protest requesting that supplies be replenished because they have been destroyed by federal officers, either directly or through the excessive use of tear gas and other chemical munitions contaminating supplies, rendering them unusable.
161. In addition, Don’t Shoot Portland has been required to divert and expend thousands of dollars of funds and extensive time as a result of the Policy. Additional purchases and labor are required to find and replace supplies destroyed by Defendants.
Individual Plaintiffs Suffer Physical, Economic, and Constitutional Harms 162. The Policy has also injured the individual Plaintiffs. 163. While Ms. Barnum has been engaged in peaceful protest, federal officials acting pursuant to the Policy have attacked her on multiple nights. In particular, Ms. Barnum has been shot with flash-bangs at a close distance; repeatedly teargassed; and shot at with additional projectiles (including rubber bullets, bean bag rounds, and rock salt). 164. These attacks on Ms. Barnum by Defendants have caused severe and prolonged bodily injury and trauma. Federal agents’ tear gas has made Ms. Barnum repeatedly vomit
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(including on herself and others) and caused burning eyes. Even a day after being gassed, she has felt like she is in a toxic cloud, and the after-effects of tear gas prevent eating and sleeping in more than two-hour increments. The weapons that federal agents have shot at Ms. Barnum have caused pain in her jaw, ears, neck, and skin. These attacks have also caused her substantial trauma and fear of repeated injury for exercising her lawful rights to peacefully protest.
165. Ms. James has also been assaulted by federal agents implementing the Policy including through being shot at with paint balls and pepper-spray balls, and then shot with rubber bullets on different days. Being shot directly with these items caused Ms. James substantial pain. It has also caused emotional distress, as she fears she will be kidnapped by federal agents.
166. Ms. Hester has been repeatedly subjected to tear gas from federal agents at the protests, which have caused her face and skin to burn for hours after she returns home. She has felt nauseated and congested the days after she protests, and her symptoms from the previous night do not subside before the next night of protests arrives.
167. Ms. Cerquera has suffered similar injuries from being teargassed and sprayed with pepper-spray balls. The federal agents’ presence at the protests has also caused emotional distress, as she fears she will be kidnapped by federal agents.
168. In addition to these physical and emotional injuries, Plaintiffs have suffered economic harm. They have been forced to purchase protective and medical supplies to mitigate their injuries. They have also had substantial personal property damaged or destroyed by federal agents acting pursuant to the Policy.
169. In addition to the physical and economic injuries they have suffered, the individual Plaintiffs have all been deprived of or chilled in the exercise of their constitutional and civil rights. Plaintiffs have been forced by federal agents’ use of tear gas and other munitions to
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leave the lawful protests. Federal agents have thus violated Plaintiffs’ First and Fourth Amendment rights. Each fears that she will be shot, teargassed, or otherwise assaulted for participating in peaceful speech and association protected by the First Amendment, because of the viewpoint they espouse. Plaintiffs also fear they will be subject to unlawful and arbitrary arrest without probable cause. Notwithstanding the Policy to silence them, most of the Plaintiffs have continued to place themselves at risk of further injury to continue to engage in First Amendment protected activity.
170. But not all. Dr. Kipersztok is being denied her right to participate in peaceful protest because Defendants’ Policy has created a chilling effect. Before the arrival of federal agents, Dr. Kipersztok, a family physician, participated in lawful protests. After federal agents were deployed under Operation Diligent Valor, she intended to continue to exercise her right of protest against this show of federal force against fellow Portlanders. However, after watching reports of the federal agents’ use of force, she reasonably fears that attending these demonstrations would put her at serious risk of debilitating injury from federal agents. News coverage has made clear to her that the federal officers have used tear gas and less-lethal weapons indiscriminately at the crowd—even against peaceful protesters who are not on federal property. Dr. Kipersztok understands that she risks being shot or teargassed by federal agents, which could lead her to be hospitalized and therefore unable to care for her patients. Dr. Kipersztok cannot risk her own health—and therefore the health of so many others—in this way.
171. Dr. Kipersztok also fears that by attending a protest in federal officers’ presence, she would be arrested without probable cause and taken away in an unmarked van, which would both prevent her from caring for her patients and would cause professional and reputational harm. Dr. Kipersztok wishes to continue to attend in-person demonstrations to stand up for equal
38

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rights for all and fight for her patients’ right to live—but she cannot do so for fear of serious physical injury or unlawful arrest.
172. In sum, the Policy has caused serious and ongoing injuries, in many forms, to each of the organizational and individual Plaintiffs. They come to this Court seeking relief for these ongoing harms so that they may exercise their constitutional rights without fear of physical injury, arrest—or worse.
CLAIMS FOR RELIEF COUNT I
(Violation of the Administrative Procedure Act by Violations of 40 U.S.C. § 1315 — DHS, CBP, ICE, FPS, Wolf, Cuccinelli, Morgan, Pham, Patterson)
173. Plaintiffs reallege and incorporate by reference all other paragraphs as if set forth fully herein.
174. The APA requires courts to hold unlawful and set aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(A), (C).
175. An agency action “includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” Id. § 551(13).
176. Defendants DHS, FPS, CBP, ICE, Wolf, Cuccinelli, Morgan, Pham, and Patterson (the “DHS Defendants”) have acted outside of their statutory authority in violation of 40 U.S.C. § 1315 and therefore in violation of the APA.
177. Under 40 U.S.C. § 1315(b)(1), the Secretary of Homeland Security may designate employees of the Department of Homeland Security, including employees transferred to the Department from the Office of the Federal Protective Service . . . as officers and agents for duty in connection with the protection of property owned or occupied by the Federal Government and persons on the
39

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property, including duty in areas outside the property to the extent necessary to protect the property and persons on the property. 178. Pursuant to the Policy, Defendants improperly designated and deployed “officers and agents” to Portland, which constitutes a final agency action subject to review under the APA. Thus, all of the DHS personnel purporting to be designated FPS agents under 40 U.S.C. § 1315 were unlawfully deployed and unable to exercise any authority under the statute whatsoever. 179. Only the Secretary or someone exercising his lawfully delegated authority may delegate DHS employees to guard federal property. 40 U.S.C. § 1315(b)(1); 6 U.S.C. § 112(b)(1) (“[t]he Secretary . . . may delegate any of the Secretary’s functions to any officer, employee, or organizational unit of the Department”). The Acting Secretary delegated the authority to designate FPS officers to the Under Secretary for Management, who in turn further delegated this authority to the FPS Director. OIG Report at 5. That second delegation to the FPS director was not further delegable. Delegation to the Director, Federal Protective Service, Second Blackwell Decl., Ex. 5 (“The authority [of the Director of FPS] to designate employees [under 40 U.S.C. § 1315(b)] may not be re-delegated.”) (emphasis added). Thus, only three people could lawfully designate employees for deployment under 40 U.S.C. § 1315: the Acting Secretary, the Under Secretary for Management, or the FPS Director. 180. The FPS Director, Defendant Patterson, did not properly designate any DHS employees to be deployed to Portland. OIG Report at 5-6. Designation requires specifically identifying employees for deployment. 40 U.S.C. § 1315(b)(1); OIG Report at 5. Defendant Patterson did not designate any specific employees for deployment, but rather circulated broadlyworded designation memoranda to leadership in various DHS components. Patterson Decl., Exs. 1-10. The memoranda reference an attached distribution list of personnel to be deployed, but at the time they were distributed, there were no such lists attached. OIG Report at 6. As a result,
40

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Defendant Patterson’s memoranda failed to designate any employees for deployment under 40 U.S.C. § 1315.
181. Thus, Defendants’ deployment of DHS agents to Portland supposedly pursuant to § 1315 was unlawful.
182. To the extent DHS component heads purported to designate individual employees for deployment under 40 U.S.C. § 1315, that, too, was unlawful. Pursuant to Senior Official Performing the Duties of the Under Secretary for Management Alles’s delegation to the FPS Director, DHS component heads lacked the authority to designate employees under § 1315.
183. Defendants have therefore acted outside of their lawful authority, in a matter “not in accordance with law” in violation of 5 U.S.C. § 706(2)(A) and “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” in violation of 5 U.S.C. 706(2)(C).
184. Moreover, the statute does not authorize these “designate[d] employees” to act as officers or agents to act beyond “the extent necessary” to protect federal property and persons on the property.
185. Upon information and belief, the DHS Defendants have deployed these employees improperly “designate[d]” as FPS “officers and agents” according to a Policy to intimidate and deter protesters because of their views and beliefs through surveillance; the use of militarized and unmarked force; the excessive deployment of crowd-control measures such as tear gas, pepper-spray balls, and less-lethal munitions; and warrantless arrests or custodial detentions without probable cause. This Policy exceeds statutory authority, which permits the deployment of DHS employees as FPS officers and agents only “to the extent necessary to protect the property and persons on the property.” 40 U.S.C. § 1315(b)(1).
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186. Defendant Wolf’s establishment of the Policy, the purported designation of ICE and CBP employees to serve as FPS officers, and deployment of those officers to Portland, are final agency actions in excess of statutory authorities. Pursuant to the Policy, these “officers and agents” have conducted arrests and seizures—including warrantless arrests and seizures without probable cause—that are not “in connection with the protection of property owned or occupied by the Federal Government and persons on the property.”
187. Statements from government officials, including the president, have made it clear that these arrests are in accordance with the Policy and intended to intimidate and deter protesters because of their views and belief, not to protect federal property. The president stated in a press conference, in reference to Portland, “We very much quelled it, and if it starts again, we’ll quell it again very easily. It’s not hard to do, if you know what you’re doing.”18
188. The DHS Defendants have therefore acted outside of their lawful authority, in a manner “not in accordance with law” in violation of 5 U.S.C. § 706(2)(A) and “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” in violation of 5 U.S.C. § 706(2)(C).
189. Through their actions as described in this Complaint, the DHS Defendants have violated the substantive requirements of the APA. The DHS Defendants’ violations inflict ongoing harm upon Plaintiffs.
COUNT II (Violation of the Administrative Procedure Act by Arbitrary & Capricious Agency Action
— DHS, CBP, ICE, FPS, Wolf, Cuccinelli, Morgan, Pham, Patterson)
18 Katie Shepherd and Mark Berman,‘It Was Like Being Preyed Upon’: Portland Protesters Say Federal Officers in Unmarked Vans Are Detaining Them, Wash. Post (July 17, 2020), https://perma.cc/8URP-6RRJ.
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190. Plaintiffs reallege and incorporate by reference all other paragraphs as if set forth fully herein.
191. The APA requires courts to hold unlawful and set aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
192. The DHS Defendants have acted arbitrarily and capriciously and therefore in violation of the APA.
193. Under 40 U.S.C. § 1315(b)(1), the designation of DHS employees as FPS officers and agents is limited to duty “in connection with the protection of” federal property and persons on that property.
194. The DHS Defendants intend to, by deploying officers who are operating pursuant to the Policy, quell protests against police brutality and systemic racism.
195. The only justification that DHS Defendants have put forth for adoption of the Policy is a pretext, and therefore their adoption of the Policy is arbitrary and capricious, and therefore in violation of the APA.
196. Through their actions as described in this Complaint, Defendants have violated the substantive requirements of the APA by acting arbitrarily and capriciously. Defendants’ violations inflict ongoing harm upon Plaintiffs.
COUNT III (Violation of the First Amendment Freedoms of Speech, Assembly, and Petition — All
Individual Defendants) 197. Plaintiffs reallege and incorporate by reference all other paragraphs as if set forth fully herein.
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198. Defendants’ practice of deploying physical force against demonstrators to remove them from places in which they have gathered with others to express their political opinions, as manifest by their actions against Plaintiffs and other protesters in Portland in July 2020 and by their repeated threats to deploy violence against protesters demonstrating against racial injustice generally and in Portland specifically, and by President Trump’s statements at paragraphs 52, 54, 89-90, violates Plaintiffs’ First Amendment rights of freedom of speech and assembly.
199. First, the individual Defendants have threatened violence against protesters engaged in public demonstrations, a form of core First Amendment-protected conduct; the retaliatory violence would be sufficient to deter a person of ordinary firmness in Plaintiffs’ positions from speaking again; and the threatened violence would be causally related to Plaintiffs’ exercise of their constitutional rights. See Aref v. Lynch, 833 F.3d 242, 258 (D.C. Cir. 2016). Among other things, Defendants have enacted a Policy of arresting protesters without probable cause in retaliation for their First Amendment-protected activity. See Nieves v. Bartlett, 139 S. Ct. 1715 (2019); Lozman v. City of Riviera Beach, 138 S. Ct. 1945 (2018).
200. Second, Defendants’ violent actions, and threats of future violent actions, are based on the viewpoint being expressed by the demonstrators—namely, opposition to police brutality and systemic racism. See Bible Believers v. Wayne County, 805 F.3d 228 (6th Cir. 2015).
201. By depriving Plaintiffs of the opportunity to express their views, retaliating against them for their expressive activities, and discriminating against them on the basis of their viewpoints, Defendants have violated Plaintiffs’ First Amendment rights and are imposing ongoing irreparable harm upon those Plaintiffs.
COUNT IV
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(Violation of the Fourth Amendment Right to Freedom from Unreasonable Seizure — All Individual Defendants)
202. Plaintiffs reallege and incorporate by reference all other paragraphs as if set forth fully herein.
203. Pursuant to the Policy, Defendants have adopted a practice of deploying physical force, without provocation or legal grounds to do so, to compel demonstrators to move.
204. The use of physical force, including but not limited to tear gas and pepper-spray balls, to force Plaintiffs to leave the protest area without a warrant or probable cause to arrest them, violated Plaintiffs’ rights under the Fourth Amendment to the U.S. Constitution to be free from unreasonable seizures.
205. Through their actions as described in this Complaint, the individual Defendants have violated the Fourth Amendment. Defendants’ violations inflict ongoing harm upon Plaintiffs.
COUNT V (In the Alternative to Count IV, Violation of the Fifth Amendment Right to Due Process —
All Individual Defendants) 206. Plaintiffs reallege and incorporate by reference all other paragraphs as if set forth fully herein. 207. In the alternative to the Plaintiffs’ claims under the Fourth Amendment, through their actions as described in this Complaint, the individual Defendants have violated the Fifth Amendment. 208. Pursuant to the Policy, Defendants have adopted a practice of deploying physical force, without provocation, warning, or legal grounds to do so, against peaceful protesters. 209. Using physical force, including but not limited to tear gas and pepper-spray balls, against Plaintiffs while they are engaged in peaceful protests, including for the purpose of
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forcing Plaintiffs to leave the protest area, violates Plaintiffs’ rights under the Fifth Amendment to the U.S. Constitution to be free from arbitrary government action. See City of Sacramento v. Lewis, 523 U.S. 833, 845 (1998).
210. Defendants’ violations inflict ongoing harm upon Plaintiffs. COUNT VI
(Violation of the Administrative Procedure Act by Violation of the Constitution — All Defendants)
211. Plaintiffs reallege and incorporate by reference all other paragraphs as if set forth fully herein.
212. The APA requires courts to hold unlawful and set aside any agency action that is “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B).
213. The DHS Defendants have adopted a Policy of deploying these employees “designate[d]” as FPS “officers and agents” in a manner not authorized by statute: namely, to intimidate and deter protesters because of their views and beliefs through surveillance; the use of militarized and unmarked force; the excessive deployment of crowd-control measures such as tear gas, pepper-spray balls, and less-lethal munitions; and warrantless arrests or custodial detentions without probable cause.
214. Defendants have made clear they intend to continue following this Policy, including the extreme and obvious ongoing Fourth Amendment violations of unlawful warrantless arrests without probable cause. The Fourth Amendment permits warrantless arrests or “detention for custodial interrogation—regardless of its label”—only where the arresting officer has probable cause to believe that the person being arrested or detained has committed a crime. Dunaway v. New York, 442 U.S. 200, 216 (1979).
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215. Similarly, upon information and belief, pursuant to the Policy, Defendants DOJ, USMS, Barr, and Washington have deployed U.S. Marshals to intimidate and deter protesters because of their views and beliefs through surveillance; used militarized and unmarked force; excessively deployed crowd-control measures such as tear gas, pepper-spray balls, and nonlethal munitions; and conducted warrantless arrests or custodial detentions without probable cause, which is not authorized by statute, 28 U.S.C. § 566.
216. Defendants’ adoption of the Policy and actions taken pursuant to the Policy are final agency actions.
217. These final agency actions violate the First, Fourth, and Fifth Amendments, as explained in paragraphs 197-210 above.
218. The Agency Defendants’ actions are therefore “contrary to constitutional right, power, privilege, or immunity” in violation of the APA. 5 U.S.C. § 706(2)(B).
219. Through their actions as described in this Complaint, all agency Defendants have violated the substantive requirements of the APA by violating the U.S. Constitution. Defendants’ violations inflict ongoing harm upon Plaintiffs.
COUNT VII (Violation of the Appointments Clause, U.S. Const. art. II, § 2, cl. 2 — Defendant Wolf)
220. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this Complaint as if fully set forth herein.
221. The Secretary of Homeland Security is a principal officer of the United States whose appointment requires presidential nomination and Senate confirmation.
222. Defendant Wolf is performing the functions and duties of the Secretary even though he has not been confirmed by the Senate to hold that office and there is no legal basis for him to exercise the functions and duties of that office.
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223. Defendant Wolf’s exercise of those functions and duties without having been confirmed by the Senate or otherwise having the legal authority to exercise them violates the Appointments Clause. His purported change to DHS Policy is therefore invalid and void.
COUNT VIII (Unlawful Appointment Under 6 U.S.C. §§ 112-113 and/or the Federal Vacancies Reform
Act — Defendant Wolf) 224. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this Complaint as if fully set forth herein. 225. The Secretary of Homeland Security may be appointed by the president only with the advice and consent of the Senate. 6 U.S.C. § 112(a)(1). 226. When the Office of the Secretary is vacant, the order of succession is governed by 6 U.S.C. § 113 and relevant agency succession orders. 227. Pursuant to those authorities, Defendant Wolf is not legally authorized to hold the position of Acting Secretary or perform the functions and duties of that office. 228. Furthermore, even if the FVRA governed—which it does not—Defendant Wolf would still not be legally authorized to hold the position of Acting Secretary or perform the functions and duties of that office, because the applicable time limit has expired (and had already expired at the time that Defendant Wolf purported to assume the role of Acting Secretary). 229. Because Defendant Wolf is performing the functions and duties of the Secretary of Homeland Security without having been confirmed by the Senate, and without any other legal authority to do so, his actions pursuant to the Policy are invalid and void.
COUNT IX (Violation of the Administrative Procedure Act, 5 U.S.C. § 706(2) — Defendant Wolf)
230. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this Complaint as if fully set forth herein.
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231. Because Defendant Wolf has been unlawfully serving as Acting Secretary of Homeland Security since November 13, 2019, and has had no authority to take any actions in that capacity, his purported change to DHS policy violates the APA and is invalid and void.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that the Court:
A. Declare that a. Congress has only authorized DHS to operate pursuant to specific statutory authorities, as relevant here to protect federal property as set forth in 40 U.S.C § 1315; and b. DHS policies, orders, and directives that purport to direct DHS assets deployed to Portland under the auspices of the Federal Protective Service to operate pursuant to the Policy to intimidate and deter protesters because of their views and beliefs through surveillance; the use of militarized and unmarked force; the excessive deployment of crowd-control measures such as tear gas, pepper-spray balls, and lesslethal munitions; and warrantless arrests or custodial detentions without probable cause are unlawful; and c. USMS policies, orders, and directives pursuant to the Policy that purport to direct U.S. Marshals to operate for purposes other than those laid out in 28 U.S.C. § 566 and in a manner not authorized by the Constitution are unlawful; and
49

Case 1:20-cv-02040-CRC Document 35-1 Filed 12/17/20 Page 50 of 51 d. Defendant Wolf is not lawfully serving as Secretary of the Department of Homeland Security and any policies, orders, or directives he issues are void;
B. Enter such preliminary and permanent injunctive relief as is necessary to ensure compliance with the Constitution and laws; and
C. Award such additional relief as the interests of justice may require. [Signature Block on Following Page]
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Dated: December 17, 2020

By: /s/ David A. O’Neil

Deana K. El-Mallawany (MA Bar No. 674825)* Justin G. Florence (D.C. Bar No. 988953) Benjamin L. Berwick (D.D.C. Bar No. MA0004) The Protect Democracy Project, Inc. 15 Main Street, Suite 312 Watertown, MA 02472 T: (202) 579-4582 | F: (929) 777-8428 deana.elmallawany@protectdemocracy.org justin.florence@protectdemocracy.org ben.berwick@protectdemocracy.org
Jessica A. Marsden (NC Bar No. 50855)* The Protect Democracy Project, Inc. 510 Meadowmont Village Circle, No. 328 Chapel Hill, NC 27517 T: (202) 579-4582 | F: (929) 777-8428 jess.marsden@protectdemocracy.org

David A. O’Neil (D.C. Bar No. 1030615) Debevoise & Plimpton, LLP 801 Pennsylvania Ave., N.W. Washington, D.C. 20004 T: (202) 383-8000 daoneil@debevoise.com
Matthew D. Forbes (NY Bar No. 5664354)* Ashley V. Hahn (NY Bar No. 5673298)** Debevoise & Plimpton, LLP 919 Third Avenue New York, NY 10022 T: (212) 909-6000 mforbes@debevoise.com avhahn@debevoise.com

Christine Kwon (CA Bar No. 319384)* The Protect Democracy Project, Inc. 555 W. 5th St. Los Angeles, CA 90013 T: (202) 579-4582 | F: (929) 777-8428 christine.kwon@protectdemocracy.org

Rachel F. Homer (D.C. Bar No. 1045077) The Protect Democracy Project, Inc. 2020 Pennsylvania Ave., NW, #163 Washington, DC 20006 T: (202) 579-4582 | F: (929) 777-8428 rachel.homer@protectdemocracy.org

Counsel for Plaintiffs

*Admitted pro hac vice **Motion for admission pro hac vice pending

51

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DON’T SHOOT PORTLAND, et al.,
Plaintiffs,
v.
CHAD F. WOLF, in his official capacity as purported Acting Secretary of Homeland Security, et al.,
Defendants.

Case No. 20-cv-2040 (CRC)

BRIEF OF CONSTITUTIONAL ACCOUNTABILITY CENTER AS AMICUS CURIAE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
Elizabeth B. Wydra (DC Bar No. 483298) Brianne J. Gorod (DC Bar No. 982075) Brian R. Frazelle (DC Bar No. 1014116) CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th Street NW, Suite 501 Washington, D.C. 20036 (202) 296-6889 brianne@theusconstitution.org
Counsel for Amicus Curiae

CORPORATE DISCLOSURE STATEMENT Amicus curiae Constitutional Accountability Center states that no party to this brief is a publicly held corporation, issues stock, or has a parent corporation.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................................................................................. ii
INTEREST OF AMICUS CURIAE......................................................................................... 1
INTRODUCTION .................................................................................................................. 1
ARGUMENT .......................................................................................................................... 3
I. The FVRA Is a Critical Check on the Manipulation of Appointments by the Executive Branch ................................................................................................... 3
II. Chad Wolf Was Illegally Performing the Role of Acting DHS Secretary When He Adopted the Challenged Policy ........................................................................ 6
A. Wolf’s Predecessor Had No Power to Install Him as Acting Secretary ...... 6
B. The Time Limits for Service by an Acting Secretary Expired Before Wolf Took Office......................................................................................... 16
III. Because Wolf’s Tenure Was Unlawful, the Policy Must Be Set Aside Under the APA ................................................................................................................. 21
IV. Under the FVRA, the Policy Is Void and May Not Be Ratified ........................... 23
CONCLUSION....................................................................................................................... 25

i

CASES

TABLE OF AUTHORITIES

Page(s)

CASA de Maryland, Inc. v. Wolf, No. 20-2118, 2020 WL 5500165 (D. Md. Sept. 11, 2020) .......................................

passim

Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift Supervision,

139 F.3d 203 (D.C. Cir. 1998) ..................................................................................

4

Edmond v. United States,

520 U.S. 651 (1997) ..................................................................................................

3

Fin. Oversight & Mgmt. Bd. for Puerto Rico v. Aurelius Inv., LLC,

140 S. Ct. 1649 (2020) ..............................................................................................

1, 3

Freytag v. Comm’r of Internal Revenue,

501 U.S. 868 (1991) ..................................................................................................

3

Hooks v. Kitsap Tenant Support Servs., Inc.,

816 F.3d 550 (9th Cir. 2016) .....................................................................................

23

Immigrant Legal Res. Ctr. v. Wolf, No. 20-5883, 2020 WL 5798269 (N.D. Cal. Sept. 29, 2020) ................................... 8, 9, 12, 16

In re Grand Jury Investigation,

916 F.3d 1047 (D.C. Cir. 2019) ................................................................................

15

J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc.,

534 U.S. 124 (2001) ..................................................................................................

19

La Clínica de La Raza v. Trump, No. 19-4980, 2020 WL 4569462 (N.D. Cal. Aug. 7, 2020)..................................... 9, 10, 12, 16

L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1 (D.D.C. 2020) ..............................................................................

22, 24

NLRB v. SW Gen., Inc., 137 S. Ct. 929 (2017) ................................................................................................

passim

Shook v. D.C. Fin. Responsibility & Mgmt. Assistance Auth.,

132 F.3d 775 (D.C. Cir. 1998) ..................................................................................

25

SW Gen., Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015) ....................................................................................

22, 23

ii

TABLE OF AUTHORITIES – cont’d
United States v. Giordano, 416 U.S. 505 (1974) ..................................................................................................
United States v. Eaton, 169 U.S. 331 (1898) ..................................................................................................
United States v. Smith, 962 F.3d 755 (4th Cir. 2020) .....................................................................................
U.S. Telecom Ass’n v. FCC, 359 F.3d 554 (D.C. Cir. 2004) ..................................................................................

Page(s) 25 18 18 25

CONSTITUTIONAL PROVISIONS, STATUTES, AND LEGISLATIVE MATERIALS

U.S. Const. art. II, § 2, cl. 2 ...........................................................................................

3

5 U.S.C. § 706(2) ........................................................................................................ 2, 21, 22, 23

5 U.S.C. § 3345(a) ......................................................................................................... passim

5 U.S.C. § 3346(a) ......................................................................................................... passim

5 U.S.C. § 3347(a) ......................................................................................................... passim

5 U.S.C. § 3347(b) .........................................................................................................

6

5 U.S.C. § 3348(a) ......................................................................................................... 21, 22, 23

5 U.S.C. § 3348(b) .........................................................................................................

6

5 U.S.C. § 3348(d) ......................................................................................................... passim

6 U.S.C. § 112(a) ...........................................................................................................

24

6 U.S.C. § 112(b) ........................................................................................................... 14, 24

6 U.S.C. § 113(a) ...........................................................................................................

7, 20

6 U.S.C. § 113(g) ........................................................................................................... passim

12 U.S.C. § 5491............................................................................................................

19

iii

TABLE OF AUTHORITIES – cont’d
40 U.S.C. § 1315............................................................................................................ 144 Cong. Rec. (daily ed. Oct. 21, 1998) ...................................................................... Act of Feb. 13, 1795, ch. 21, 1 Stat. 415 ....................................................................... Act of July 23, 1868, ch. 227, 15 Stat. 168.................................................................... S. Rep. No. 105-250 (1998) ...........................................................................................

Page(s) 2, 25 15 4 15
5, 6, 23

OTHER AUTHORITIES

Thomas A. Berry, S.W. General: The Court Reins in Unilateral Appointments,

2017 Cato Sup. Ct. Rev. 151 .....................................................................................

5

DHS Delegation No. 00106 (Revision No. 08.5), DHS Orders of Succession and Delegations of Authorities for Named Positions (Apr. 10, 2019) .............................

passim

DHS Delegation No. 00106 (Revision No. 08.6), DHS Orders of Succession and

Delegations of Authorities for Named Positions (Nov. 14, 2019) ............................

11

Exec. Order No. 13753, 81 Fed. Reg. 90,667 (Dec. 14, 2016)......................................

8

The Federalist No. 76 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ..................

3

Kevin K. McAleenan, Acting Secretary of Homeland Security, Amendment to the

Order of Succession for the Secretary of Homeland Security (Nov. 8, 2019) ..........

11

Memorandum for the Secretary from John M. Mitnick, General Counsel, Department of Homeland Security (Apr. 9, 2019) .................................................... 9, 11, 14

Office of Legal Counsel, Designating an Acting Dir. of the Bureau of Cons. Fin.

Protect., 2017 WL 6419154 (Nov. 25, 2017) ...........................................................

15

Morton Rosenberg, Cong. Research Serv., No. 98-892, The New Vacancies Act:

Congress Acts to Protect the Senate’s Confirmation Prerogative (1998) ................

3

The Vacancies Act, 22 Op. O.L.C. 44 (1998) ................................................................

4

U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 85 Fed. Reg. 46,788 (Aug. 3, 2020) ........................................................................................................... 17, 20, 21

iv

TABLE OF AUTHORITIES – cont’d
U.S. Gov’t Accountability Office, B-331650, Legality of Service of Acting Secretary of Homeland Security and Service of Senior Official Performing the Duties of Deputy Secretary of Homeland Security (Aug. 14, 2020).........................................

Page(s) 9

v

INTEREST OF AMICUS CURIAE1 Constitutional Accountability Center (CAC) is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of our Constitution’s text and history. CAC works in our courts, through our government, and with legal scholars to improve understanding of the Constitution and to preserve the rights and freedoms it guarantees. CAC has a strong interest in preserving the checks and balances set out in our nation’s charter, as well as the proper interpretation of laws that help maintain that balance.
INTRODUCTION The Secretary of Homeland Security is empowered to make a range of decisions that have enormous consequences for those affected. To help ensure that the Secretary wields this power responsibly, the Constitution requires that he or she be appointed by the President with the advice and consent of the Senate. “By limiting the appointment power in this fashion,” the Constitution seeks to make the officers who exercise the authority of the federal government “accountable to political force and the will of the people.” Fin. Oversight & Mgmt. Bd. for Puerto Rico v. Aurelius Inv., LLC, 140 S. Ct. 1649, 1657 (2020) (quotation marks omitted). But despite that, the Department of Homeland Security (DHS) has operated without a Senate-confirmed Secretary for a year and a half. Meanwhile, lower-level officials, who were never vetted by the Senate for the Secretary’s role, have run the Department and steered its policies. In July 2020, the purported Acting Secretary of DHS, Chad Wolf, instituted a policy designed to use federal law enforcement power to quash the speech and protests supporting Black Lives Matter in Portland, Oregon. Compl. ¶¶ 2-3. As part of that policy, Wolf formed the
1 No person or entity other than amicus and its counsel assisted in or made a monetary contribution to the preparation or submission of this brief. Counsel for all parties have consented to the filing of this brief.
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“Protecting American Communities Task Force” within DHS and ordered that federal officers from multiple DHS component agencies be deployed to Portland under the label “Operation Diligent Valor.” Id. ¶¶ 73-75. Utilizing a power assigned to the Homeland Security Secretary under 40 U.S.C. § 1315, Wolf designated over one hundred agents from the customs, border, and immigration enforcement arms of DHS to perform duties for the Federal Protective Service. Id. ¶¶ 77-79. And under the guise of protecting federal property, these agents, “dressed in military fatigues and toting military gear,” have “tear-gassed peaceful protestors,” “made unlawful arrests without probable cause,” and “otherwise used violence in an effort to stamp out peaceful and constitutionally protected protests.” Id. ¶ 4.
Chad Wolf, however, had no legal authority to hold the position of Acting DHS Secretary, and he therefore lacked the power to institute this new policy. The Federal Vacancies Reform Act of 1998 (FVRA) and the Homeland Security Act (HSA) place careful limits on service by acting officials in order to preserve the Senate’s constitutional power over appointments. And under those laws, Wolf never lawfully became the Acting Secretary. First, the person who purported to install him in that role—his predecessor Kevin McAleenan—was himself serving as Acting Secretary illegally and therefore had no power to name Wolf as his successor. Second, and independently, the limited time period during which the Secretary’s office may be filled by an Acting Secretary expired before Wolf’s tenure even began.
Because Wolf illegally exercised the powers of a vacant office when he adopted the policy challenged here, that policy “shall have no force or effect” under the FVRA. 5 U.S.C. § 3348(d)(1). And because Wolf acted without legal authority, the Administrative Procedure Act (APA) independently requires that the policy be enjoined as “not in accordance with law” and “in excess of statutory jurisdiction, authority, or limitations.” Id. § 706(2). Finally, Wolf’s adoption
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of the policy “may not be ratified,” id. § 3348(d)(2), even by a properly serving Secretary or Acting Secretary. For these reasons, Defendants’ motion to dismiss should be denied.
ARGUMENT I. The FVRA Is a Critical Check on the Manipulation of Appointments by the
Executive Branch. “Article II of the Constitution requires that the President obtain ‘the Advice and Consent of the Senate’ before appointing ‘Officers of the United States.’” NLRB v. SW Gen., Inc., 137 S. Ct. 929, 934 (2017) (quoting U.S. Const. art. II, § 2, cl. 2). The Framers imposed that requirement as a check on the President, recognizing that giving him the “sole disposition of offices” would result in a Cabinet “governed much more by his private inclinations and interests” than by the public good. The Federalist No. 76, at 457 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Indeed, “the power of appointment to offices was deemed the most insidious and powerful weapon of eighteenth century despotism,” and “[t]he manipulation of official appointments had long been one of the American revolutionary generation’s greatest grievances against executive power.” Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 883 (1991) (quotation marks omitted). Thus, “[t]he Senate’s advice and consent power is a critical ‘structural safeguard [ ] of the constitutional scheme.’” SW Gen., 137 S. Ct. at 935 (quoting Edmond v. United States, 520 U.S. 651, 659 (1997)). And the Appointments Clause, “like all of the Constitution’s structural provisions, is designed first and foremost not to look after the interests of the respective branches, but to protect individual liberty.” Id. at 949 (Thomas, J., concurring) (quotation marks omitted); see Fin. Oversight & Mgmt. Bd. for Puerto Rico, 140 S. Ct. at 1657 (“the Appointments Clause helps to preserve democratic accountability”). “Over the years, Congress has established a legislative scheme to protect the Senate’s constitutional role in the confirmation process.” Morton Rosenberg, Cong. Research Serv.,
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No. 98-892, The New Vacancies Act: Congress Acts to Protect the Senate’s Confirmation Prerogative, at 5 (1998). Indeed, “[s]ince President Washington’s first term, Congress has given the President limited authority to appoint acting officials to temporarily perform the functions of a vacant . . . office without first obtaining Senate approval.” SW Gen., 137 S. Ct. at 935; see Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift Supervision, 139 F.3d 203, 209-11 (D.C. Cir. 1998). “[F]rom the beginning,” however, Congress has placed limits on such acting service. Id. at 210; see, e.g., Act of Feb. 13, 1795, ch. 21, 1 Stat. 415, 415 (empowering the President to authorize persons “to perform the duties” of vacant offices, but providing that “no one vacancy shall be supplied, in manner aforesaid, for a longer term than six months”).
In the 1860s, “Congress repealed the existing statutes on the subject of vacancies and enacted in their stead a single statute,” the Vacancies Act, which has been in force since then, with modifications. Doolin, 139 F.3d at 210. “The Federal Vacancies Reform Act of 1998 . . . is the latest version of that authorization.” SW Gen., 137 S. Ct. at 934.
Congress enacted the FVRA in response to the executive branch’s increasing refusal to comply with the Vacancies Act and the Appointments Clause. Beginning in the 1970s, the Justice Department took the position that the Vacancies Act was not “the exclusive statutory authority for temporarily assigning the duties and powers of a Senate-confirmed office,” The Vacancies Act, 22 Op. O.L.C. 44, 44 (1998), and that “statutes vesting an agency’s powers in the agency head and allowing delegation to subordinate officials” could be used as an alternative during a vacancy, enabling agencies to avoid complying with the limits of the Vacancies Act. Id. Because virtually all federal departments are governed by such “vesting-and-delegation” statutes, id. at 2, individuals “who were ineligible for appointment as acting officers under the terms of the Vacancies Act were frequently ‘delegated’ the title and duties of precisely the same office, meaning the act’s
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restrictions had become largely toothless.” Thomas A. Berry, S.W. General: The Court Reins in Unilateral Appointments, 2017 Cato Sup. Ct. Rev. 151, 155.
Dismayed that “acting service beyond the time limitations in the act was widespread,” id. at 154, and seeking to vindicate the Act’s “fundamental purpose” of “limit[ing] the power of the President to name acting officials,” Congress enacted the FVRA “to create a clear and exclusive process to govern the performance of duties of offices in the Executive Branch that are filled through presidential appointment by and with the consent of the Senate,” S. Rep. No. 105-250, at 7-8, 1 (1998). Accordingly, the FVRA carefully limits who may serve as an acting officer when a vacancy arises. By default, the “first assistant” to the vacant office must perform the functions and duties of that office. 5 U.S.C. § 3345(a)(1). The President “may override that default rule by directing [a different person] to become the acting officer instead,” SW Gen., 137 S. Ct. at 935, but the President’s choice of whom to select is limited. See 5 U.S.C. § 3345(a)(2), (3).
Further, to prevent acting officers from filling vacancies for “constitutionally unacceptable” periods of time, S. Rep. No. 105-250, at 8, the FVRA also limits the length of their service. Relevant here, unless the President sends a nomination to the Senate to fill a vacancy permanently, acting officials may perform the functions and duties of the vacant office “for no longer than 210 days beginning on the date the vacancy occurs.” 5 U.S.C. § 3346(a)(1).
The FVRA is “the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office” requiring Senate confirmation, id. § 3347(a), with two limited exceptions. One exception accommodates recess appointments. See id. § 3347(a)(2). The other exception permits agency organic statutes to depart from the FVRA if they expressly designate an official to temporarily perform the functions and duties of a vacant office, id. § 3347(a)(1)(B), or if they expressly authorize the head of the department to designate an official
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to do so, id. § 3347(a)(1)(A). If an office is not validly being filled pursuant to the FVRA or one of these exceptions, however, “the office shall remain vacant.” Id. § 3348(b)(1).
To prevent department heads from evading these restrictions by purporting to “delegate” the powers of a vacant office to others, the FVRA specifies that statutes giving “general authority to the head of an Executive agency . . . to delegate duties statutorily vested in that agency head to, or to reassign duties among,” other agency personnel—i.e., so-called vesting-and-delegation statutes—do not provide an exception to the FVRA’s limits. Id. § 3347(b).
Finally, to encourage compliance with these limits, Congress provided that an agency action “shall have no force or effect” if it was taken by a person performing a function or duty of a vacant office without authorization by the FVRA or one of its exceptions. Id. § 3348(d)(1). Importantly, these void actions “may not be ratified” by other officials. Id. § 3348(d)(2); see S. Rep. No. 105-250, at 8 (“[I]f any subsequent acting official . . . can ratify the actions of a person who [violated] the Vacancies Act, then no consequence will derive from an illegal acting designation. This result also undermines the constitutional requirement of advice and consent.”). II. Chad Wolf Was Illegally Performing the Role of Acting DHS Secretary When He
Adopted the Challenged Policy. A. Wolf’s Predecessor Had No Power to Install Him as Acting Secretary. Chad Wolf purportedly became the Acting Secretary of DHS by virtue of an order signed by the previous Acting Secretary, Kevin McAleenan, shortly before McAleenan left government. McAleenan himself, however, was never a valid Acting Secretary. As a result, he had no power to issue any such order, and his attempt to install Wolf as his successor is void and without effect. 1. In creating the office of DHS Secretary, Congress incorporated and supplemented the FVRA’s rules for the filling of vacancies. Consistent with the FVRA, the HSA establishes a Deputy Secretary who is designated as “the Secretary’s first assistant” for purposes of the FVRA.
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6 U.S.C. § 113(a)(1)(A). Under the FVRA, only this “first assistant,” the Deputy Secretary, would be able to serve automatically as the Acting Secretary during a vacancy. See 5 U.S.C. § 3345(a)(1). The HSA modifies this rule, providing that, in the absence of a Deputy, the Department’s third-inline officer should serve as the Acting Secretary. See 6 U.S.C. § 113(g)(1). The HSA also empowers the Secretary to extend this line of succession further to account for situations in which the top three positions are all vacant: notwithstanding the FVRA, “the Secretary may designate such other officers of the Department in further order of succession to serve as Acting Secretary.” Id. § 113(g)(2). The FVRA permits this type of express departure from its rules in an agency-specific succession statute. See 5 U.S.C. § 3347(a)(1)(A).
In short, the HSA prescribes a specific order of succession that automatically goes into effect when the Secretary’s office is vacant, and it empowers the Secretary to expand upon that list by establishing a “further” line of succession beyond those two officials.
Exercising that power, the Secretary has established a further line of succession in the Department’s internal regulation governing vacancies, known as Delegation 00106. See DHS Delegation No. 00106 (Revision No. 08.5), DHS Orders of Succession and Delegations of Authorities for Named Positions (Apr. 10, 2019); see also CASA de Maryland, Inc. v. Wolf, No. 20-2118, 2020 WL 5500165, at *20 (D. Md. Sept. 11, 2020) (“Delegation Order 00106 has been the DHS’ repository for changes to the order of succession for the office of the Secretary and twenty-eight other . . . positions within the agency.”). Specifically, Delegation 00106 incorporates the line of succession for the Secretary’s office that was first provided in a 2016 executive order: “In case of the Secretary’s . . . resignation, . . . the orderly succession of officials is governed by Executive Order 13753.” DHS Delegation No. 00106, supra, § II.A.
Executive Order 13753, in turn, lists sixteen DHS officials who are authorized to take over
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as Acting Secretary during a vacancy, in the sequence provided. See Exec. Order No. 13753, § 1,
81 Fed. Reg. 90,667 (Dec. 14, 2016). Under Delegation 00106, therefore, that list of officials, in that order, are to serve as Acting Secretary following a Secretary’s resignation.2
The last Senate-confirmed DHS Secretary, Kirstjen Nielsen, resigned in April 2019. At
that point, Kevin McAleenan was the Commissioner of U.S. Customs and Border Protection.
Under Executive Order 13753, and therefore under Section II.A of Delegation 00106, the
Commissioner is seventh in line to become Acting Secretary following a resignation. See Exec.
Order No. 13753, supra, § 1. Nevertheless, McAleenan purported to take over as Acting Secretary,
even though other officials higher in the line of succession were available to serve.
In doing so, McAleenan unlawfully departed from the “further order of succession to serve
as Acting Secretary,” 6 U.S.C. § 113(g)(2), that was set forth in DHS’s regulation. See Immigrant
Legal Res. Ctr. v. Wolf, No. 20-5883, 2020 WL 5798269, at *7 (N.D. Cal. Sept. 29, 2020) (“ILRC”)
(“Pursuant to that order of succession, Mr. McAleenan was seventh in line and, thus, was not
eligible to assume the role of Acting Secretary.”); CASA, 2020 WL 5500165, at *21 (“[W]hen
Nielsen vacated the office, and McAleenan assumed the position of Acting Secretary, he was not
next in line . . . . McAleenan’s leapfrogging over [the proper official] therefore violated the
agency’s own order of succession.”).
2 When Executive Order 13753 was issued in 2016, DHS had not yet been given the statutory power to establish a further line of succession for the Secretary’s office. The President’s authority to issue the executive order came from his discretionary power under the FVRA to select specific officials besides the first assistant to fill a vacancy. See 5 U.S.C. § 3345(a)(2), (a)(3). One week later, the HSA was amended to add 6 U.S.C. § 113(g), which permitted DHS to establish a further line of succession. In exercising that new power, DHS has adhered to the line of succession set forth in Executive Order 13753, incorporating that executive order by reference as the source governing vacancies caused by resignations. See DHS Delegation No. 00106, supra, § II.A. Indeed, by April 2019 the DHS Secretary had amended Delegation 00106 at least three times, see id. at 1-1 (indicating dates of revisions), and each time the Secretary preserved Section II.A and its reliance on Executive Order 13753 to provide the line of succession following resignations.
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Because McAleenan “assumed the role of Acting Secretary without lawful authority” under the HSA, id., his tenure violated the FVRA, which is “the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office” unless an alternative succession statute like the one in the HSA is being followed. See 5 U.S.C. § 3347(a).
2. Despite the above, the government insists that McAleenan validly became Acting Secretary upon Nielsen’s resignation pursuant to the DHS order of succession adopted under § 113(g)(2). Every court to address that contention has properly rejected it, as has the Government Accountability Office. See ILRC, 2020 WL 5798269, at *7-9; CASA, 2020 WL 5500165, at *20-23; La Clínica de La Raza v. Trump, No. 19-4980, 2020 WL 4569462, at *13-14 (N.D. Cal. Aug. 7, 2020); U.S. Gov’t Accountability Office, B-331650, Legality of Service of Acting Secretary of Homeland Security and Service of Senior Official Performing the Duties of Deputy Secretary of Homeland Security (Aug. 14, 2020), https://www.gao.gov/assets/710/708830.pdf.
In support of its position, the government cites an order signed by Secretary Nielsen on April 9, 2019. This order states that it is revising Annex A to Delegation 00106, the internal DHS regulation providing the line of succession for the Department’s various offices. See Memorandum for the Secretary from John M. Mitnick, General Counsel, DHS, at 1 (Apr. 9, 2019) (memorializing Nielsen’s “approval of the attached document,” identified as “Annex A”); id. at 2 (the attached document, which reads: “Annex A of DHS Orders of Succession and Delegations of Authorities for Named Positions, Delegation No. 00106, is hereby amended by striking the text of such Annex in its entirety and inserting the following in lieu thereof”).
Crucially, however, Annex A governs only who may exercise the Secretary’s powers during a disaster or catastrophic emergency that prevents the Secretary from acting, not who may exercise the Secretary’s powers following a resignation. See DHS Delegation No. 00106, supra,
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§ II.B (“I hereby delegate to the officials occupying the identified positions in the order listed (Annex A), my authority to exercise the powers and perform the functions and duties of my office . . . in the event I am unavailable to act during a disaster or catastrophic emergency.”); CASA, 2020 WL 5500165, at *21 (“On Nielsen’s last day of service, she amended Annex A of Delegation Order 000106, which applied only to succession ‘in the event of disaster or emergency.’”).
The day after Nielsen signed this order, DHS updated Delegation 00106 accordingly. Just as Nielsen ordered, Annex A now contained a revised line of succession for cases of “disaster or catastrophic emergency.” DHS Delegation No. 00106, supra, § II.B. Also consistent with Nielsen’s order, the updated regulation left intact the line of succession for cases involving “the Secretary’s . . . resignation,” which were still “governed by Executive Order 13753.” Id. § II.A.
The government claims that this was all a mistake that “did not accurately capture Ms. Nielsen’s order.” MTD 33 n.16. But DHS personnel did exactly what Nielsen’s order told them to do: they “replaced Annex A and made no other changes to Delegation No. 00106.” La Clínica, 2020 WL 4569462, at *13; see CASA, 2020 WL 5500165, at *22. Thus, when Nielsen resigned, “the orderly succession of officials [was] governed by Executive Order 13753 . . . not the amended Annex A, which only applied when the Secretary was unavailable due to disaster or catastrophic emergency.” La Clínica, 2020 WL 4569462, at *13 (quotation marks omitted).
In sum, Nielsen’s order and DHS’s subsequently revised Delegation 00106 are consistent with each other and are perfectly clear: Nielsen altered the line of succession for cases of disaster or catastrophic emergency, but she did not alter the line of succession for resignations, which remained governed by Executive Order 13753. And under that executive order, Kevin McAleenan was not entitled to become Acting Secretary when Nielsen resigned.
3. The government argues that Nielsen’s order actually established a new, consolidated
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line of succession for “all vacancies,” including those caused by resignations, eliminating any further reliance on the line of succession provided in the executive order. MTD 31. That, however, is simply not what Nielsen’s order says. Rather, her order states: “I hereby designate the order of succession for the Secretary of Homeland Security as follows.” Memorandum for the Secretary, supra, at 2 (emphasis added). The only thing that “follows” is an amendment to the text of Annex A. And that annex governs only vacancies during a disaster or catastrophic emergency.
The government’s position thus requires adding text to Nielsen’s order that it does not contain (language specifying that she was creating a single line of succession to govern all vacancies, eschewing further reliance on Executive Order 13753), while ignoring text that the order does contain (language specifying that the only change being made was to Annex A). See CASA, 2020 WL 5500165, at *22 (refusing to read Nielsen’s order “to also apply in the case of resignation,” given “its clear language limiting application to disaster and emergency”).
In reality, the government is attempting to conflate what Secretary Nielsen did in April 2019 with what Kevin McAleenan did later that year. In November, McAleenan signed an order purporting to change the Secretary’s line of succession again. But unlike Nielsen, McAleenan altered the line of succession for vacancies caused by resignations—replacing the list of officials set forth in Executive Order 13753 with the list in Annex A: “Section II.A of DHS Delegation No. 00106 . . . is amended hereby to state as follows: ‘In case of the Secretary’s . . . resignation, . . . the order of succession of officials is governed by Annex A.’” Kevin K. McAleenan, Acting Secretary of Homeland Security, Amendment to the Order of Succession for the Secretary of Homeland Security (Nov. 8, 2019) (emphasis added). The Department’s regulation was then changed accordingly. See DHS Delegation No. 00106 (Revision No. 08.6), DHS Orders of Succession and Delegations of Authorities for Named Positions, § II.A (Nov. 14, 2019).
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When DHS personnel amended that regulation to implement McAleenan’s order, they were not belatedly correcting a mistake they made seven months earlier, as the government claims. The record plainly shows that “McAleenan amended Delegation No. 00106 . . . to cross-reference Annex A but Nielsen did not.” La Clínica, 2020 WL 4569462, at *14. The government has never explained “why it was necessary for Mr. McAleenan to amend Section II.A of Delegation 00106, if Secretary Nielsen had already accomplished that change.” ILRC, 2020 WL 5798269, at *8.
4. Instead, the government argues that the plain text of Nielsen’s order should be ignored based on “context” supposedly indicating that Nielsen intended something other than what she prescribed. These “context” arguments, unpersuasive on their own terms, do not warrant overriding the clear language of Nielsen’s order.
The government’s primary argument is that Nielsen’s use of the term “order of succession” must mean that she actually meant to alter the line of succession for resignations, not just the line of succession for disasters and emergencies. Nielsen’s order indicates that it is establishing the “order of succession” for the Secretary’s office, and it cites 6 U.S.C. § 113(g)(2) (allowing the Secretary to designate a “further order of succession”) as among the authorities empowering her to do so. According to the government, Nielsen could not possibly have designated an “order of succession” under § 113(g)(2) to govern situations involving disaster and emergency, because— the government argues—those situations are covered only by a “delegation of authority” in DHS’s regulation. In other words, by invoking § 113(g)(2) and using the term “order of succession,” the preamble to Nielsen’s order must mean that she meant to amend Section II.A of Delegation 00106 (governing resignations) because Section II.B (governing disasters and emergencies) was not an order of succession but rather “a delegation of authority.”
This argument is premised on a supposedly black-and-white distinction between “orders
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of succession” and “delegations of authority,” as well as the idea that an “order of succession” applies only to permanent vacancies following an officer’s death or resignation. But that premise is false. The HSA, Delegation 00106, and Nielsen’s order itself all refute the notion that the term “order of succession” is restricted to permanent vacancies following death or resignation. Those authorities also reveal that there is no distinction in usage between the terms “order of succession” and “delegation of authority” so clear and firmly entrenched as to justify overriding the plain language of Nielsen’s order.
In the HSA, § 113(g) states that the “order of succession” it empowers the Secretary to create will govern not only a “vacancy in office,” but also situations in which “absence” or “disability” prevents a Secretary from being “available to exercise the duties of the Office.” 6 U.S.C. § 113(g)(1). That language clearly encompasses situations in which a Secretary is “unavailable to act during a disaster or catastrophic emergency.” DHS Delegation No. 00106, supra, § II.B. The government is simply wrong, therefore, to claim there was “no reason that Ms. Nielsen would have invoked her § 113(g)(2) authority to designate the order of succession . . . if she was merely amending the order for delegated authority during an emergency.” MTD 32-33.
Likewise, Delegation 00106 twice uses the term “order of succession” to describe its various annexes, see id. ¶¶ II.C, II.G, while it also “delegate[s] authority” to the officials listed in those annexes “to exercise the powers and perform the functions and duties of the named positions in case of,” among other things, “death” and “resignation,” id. ¶ II.D.
Finally, while Nielsen’s order is titled “Amending the Order of Succession in the Department of Homeland Security,” and while it proclaims its intent to designate an “order of succession” for the Secretary’s office, the revised version of Annex A that ensues is titled “Order for Delegation of Authority by the Secretary of the Department of Homeland Security.”
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Memorandum for the Secretary, supra, at 2 (emphasis added). Neither the HSA nor the Department’s own practices, therefore, draw the firm distinction
between the terms “order of succession” and “delegation of authority” that the government says they do. Indeed, the government belies its own claim by asserting that Nielsen’s new order of succession “applied to all vacancies regardless of reason,” including vacancies arising from disaster or emergency, even while simultaneously insisting that the provision for disasters and emergencies in Section II.B is a “delegation of authority,” not an “order of succession.” MTD 32.3
Thus, the supposed boundary between these two terms is not nearly solid enough to justify the inference that the government seeks to draw from it—namely, that Nielsen’s order should be read to mean something other than what its language plainly says, simply because it invokes § 113(g)(2) to designate an “order of succession.” Instead, her use of that term “at best states the obvious—that Nielsen had the authority to change the succession order as applied to the office of the Secretary,” not that she “changed two separate succession lists applicable to each scenario.” CASA, 2020 WL 5500165, at *22.
In defending its position, the government also relies on a second flawed premise. It insists that an “order of succession” adopted pursuant to § 113(g)(2) cannot have been meant to address only scenarios involving disaster or emergency, because § 113(g)(2) provides a carve-out from the FVRA, and situations in which disaster or emergency prevent an officer from acting “are not the
3 As the government would have it, a delegation of authority “simply allow[s] an official to exercise certain powers of the office of the Secretary,” not to become the Acting Secretary. MTD 37. That distinction might be valid when a sitting Secretary permits another official to exercise only some of the Secretary’s powers, as under 6 U.S.C. § 112(b)(1). But when a Secretary is “unavailable to act” during a disaster or emergency, DHS Delegation No. 00106, supra, § II.B, and another official assumes all of the Secretary’s “authority to exercise the powers and perform the functions and duties of [the] office,” id., then this stand-in official is clearly serving as the Acting Secretary, whether or not that label is used. Under those conditions, a “delegation of authority” is indistinguishable from an “order of succession.”
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kind of vacancy that would trigger the FVRA.” MTD 34; id. (asserting that someone exercising
the Secretary’s powers under § II.B of Delegation 00106 would not be an Acting Secretary). The
government cites no authority supporting that proposition, and it is wrong. The FVRA covers
more than permanent vacancies that arise when an officer “dies” or “resigns.” 5 U.S.C. § 3345(a).
It applies to every situation in which an officer “is otherwise unable to perform the functions and
duties of the office.” Id. And it expressly covers scenarios in which an incumbent officer is temporarily prevented from performing his or her duties.4
The government counters that if this is true, then former DHS Secretary Jeh Johnson lacked
the authority to establish Section II.B (and Annex A) in the first place because it was not until a
week later that the HSA was amended to add § 113(g), giving the Secretary the power to designate
an order of succession that could supplant the FVRA. But that conclusion does not follow.
Section II.B includes an important caveat: it purports to delegate all of the Secretary’s powers
during a disaster or catastrophic emergency “to the extent not otherwise prohibited by law.” DHS
Delegation No. 00106, supra, § II.B. Thus, to the extent that the FVRA conflicts with this
provision or limits the permissible scope of the delegation, Section II.B makes clear that it does
not, on its face, purport to override that limitation. And even if Johnson did lack the authority to
4 See 5 U.S.C. § 3346(a) (referencing “a vacancy caused by sickness”); Office of Legal Counsel, Designating an Acting Dir. of the Bureau of Cons. Fin. Protect., 2017 WL 6419154, at *3 (Nov. 25, 2017) (“an officer is ‘unable to perform the functions and duties of the office’ during both short periods of unavailability, such as a period of sickness, and potentially longer ones”). Indeed, the Vacancies Act, which the FVRA amended, has always covered temporary vacancies caused by an incumbent’s inability to act. For 130 years, the Act referred to “death, resignation, absence, or sickness,” Act of July 23, 1868, ch. 227, § 2, 15 Stat. 168, 168, and Congress broadened that language even further in the FVRA, see 5 U.S.C. § 3345(a), in order “[t]o make the law cover all situations when the officer cannot perform his duties,” 144 Cong. Rec. S12823 (daily ed. Oct. 21, 1998) (Sen. Thompson); see also In re Grand Jury Investigation, 916 F.3d 1047, 1055-56 (D.C. Cir. 2019) (the Attorney General’s recusal constituted “absence or disability” under the Justice Department’s succession statute and therefore “created a vacancy”).
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establish Section II.B, the phenomenon of executive branch department heads pushing the limits of the Vacancies Act through their “delegation” authority is hardly new. See supra at 4-6.
In short, nothing the government cites offers any reason to disregard the unambiguous text of Nielsen’s order. Neither her use of the term “order of succession” nor her invocation of § 113(g)(2) is in tension with the straightforward reading of that plain text. They certainly do not offer such clear indications of a contrary meaning as to override the order’s plain language, which “changed Annex A, and Annex A only.” CASA, 2020 WL 5500165, at *22. Thus, when the Secretary’s office became vacant in April 2019, the line of succession provided in Executive Order 13753 still prescribed who would serve as Acting Secretary following a resignation, and no legal authority permitted Kevin McAleenan to assume that role.5
Chad Wolf’s claim to be Acting Secretary, in turn, rests entirely on the November 2019 order in which McAleenan ostensibly designated a new line of succession under § 113(g)(2). See MTD 31. Because McAleenan’s tenure was unlawful, however, he had no right to exercise the Secretary’s powers under § 113(g)(2). His order therefore had “no force or effect” under the FVRA, 5 U.S.C. § 3348(d)(1), and Wolf could not become Acting Secretary based on that order.
B. The Time Limits for Service by an Acting Secretary Expired Before Wolf Took Office.
Even if Kevin McAleenan validly became the Acting Secretary of Homeland Security in April 2019 (a proposition no court has accepted), his authority to serve as Acting Secretary expired
5 One of the courts that held that McAleenan did not validly become Acting Secretary under the HSA concluded that he was nonetheless eligible to be named to that role by the President under the FVRA, pursuant to 5 U.S.C. § 3345(a)(2) or (a)(3). See La Clínica, 2020 WL 4569462, at *14. That court did not address whether the President actually did designate McAleenan as Acting Secretary under the FVRA, and it has “granted leave to file a motion to reconsider that decision,” because since that decision the government has consistently “taken the position . . . that Mr. McAleenan was not appointed pursuant to the FVRA.” ILRC, 2020 WL 5798269, at *7 n.9.
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in early November—before he signed his order attempting to make Wolf his successor. The FVRA limits the amount of time during which a vacant office may be filled by an
acting official. Except in the case of vacancies caused by sickness, “the person serving as an acting officer . . . may serve in the office . . . for no longer than 210 days beginning on the date the vacancy occurs.” 5 U.S.C. § 3346(a)(1). This time limit is extended if the President nominates someone to fill the office permanently, id. § 3346(a)(2), but in the absence of such a nomination, the outer limit on acting service is 210 days from the beginning of the vacancy. The office of DHS Secretary became vacant on April 10, 2019, and because President Trump did not nominate anyone to fill the office, the FVRA’s time limits for the office expired on November 6, 2019.
To overcome this problem, the government has argued that the FVRA’s time limits do not apply to the Secretary’s office when a person is serving as Acting Secretary under a “further order of succession” established pursuant to 6 U.S.C. § 113(g)(2). See U.S. Citizenship and Immigration Services Fee Schedule, 85 Fed. Reg. 46,788, 46,804 (Aug. 3, 2020) (asserting that Secretary Nielsen’s designation of a further order of succession under § 113(g)(2) “superseded the FVRA” and that McAleenan thus “served as Acting Secretary without time limitation”).
The implication of this argument is that DHS may operate indefinitely without ever having a Senate-confirmed Secretary. If no time limits on acting service apply, and if the order of succession under § 113(g)(2) can be modified at will, a series of Acting Secretaries can run the Department in perpetuity. Not only that, but these Acting Secretaries can choose their own successors, as long as the top three positions in the Department remain vacant (thus enabling the “further” line of succession under § 113(g)(2) to take effect). Before leaving office, all a departing Acting Secretary has to do is revise the order of succession, as Kevin McAleenan did, to put his chosen replacement at the top of the list. Moreover, the individuals who make up this chain of
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Acting Secretaries need not have been confirmed by the Senate to any position in DHS. That is because § 113(g)(2) permits any “officers of the Department” to be included in the Secretary’s line of succession, not merely those whose offices require Senate confirmation. In short, a selfperpetuating sequence of Acting Secretaries, some of whom may have been selected for their underlying positions in the Department without presidential nomination or Senate confirmation, may run the Department indefinitely.
Even if such a system were constitutional,6 it is plainly impermissible under the relevant statutes, which preserve the FVRA’s time limits on acting service for the Secretary’s office.
First, the HSA does not displace the FVRA’s time limits. A provision like § 113(g)(2) may deviate from the FVRA’s rules, but only if it “expressly” authorizes a department head “to designate an officer or employee to perform the functions and duties of [the] office temporarily.” 5 U.S.C. § 3347(a)(1)(A). Where such express authorization is lacking, the FVRA’s procedures, including its time limits, remain “the exclusive means” for permitting acting service, id. § 3347(a).
Nothing in § 113(g)(2) “expressly” authorizes the designation of Acting Secretaries who may serve beyond the FVRA’s 210-day time limit. Although § 113(g)(2) states that it applies “[n]otwithstanding chapter 33 of Title 5” (which includes the FVRA and other provisions), the presence of this “notwithstanding” clause does not displace the FVRA’s time limits—much less “expressly” purport to do so. A “notwithstanding” clause “just shows which of two or more provisions prevails in the event of a conflict.” SW Gen., 137 S. Ct. at 940 (emphasis added); id. at 939 (the word “shows which provision prevails in the event of a clash” (quotation marks omitted)). When two provisions do not conflict, there is nothing for a “notwithstanding” clause to resolve.
6 Courts have held that “the temporary nature” of acting service is what prevents it from violating the Appointments Clause. United States v. Smith, 962 F.3d 755, 765 (4th Cir. 2020); see United States v. Eaton, 169 U.S. 331, 343 (1898) (citing “special and temporary conditions”).
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And here, there is no conflict between § 113(g)(2) and the FVRA’s time limits: nothing in § 113(g)(2) addresses how long Acting Secretaries may serve or refers to time limits at all. Congress knows how to address such matters when it wants to. See, e.g., 12 U.S.C. § 5491(c)(2) (permitting officer to serve “until a successor has been appointed and qualified”).
Thus, the “notwithstanding” clause in § 113(g)(2) does not erase every rule of the FVRA, including those rules (like its time limits) that are compatible with § 113(g)(2). Rather, it resolves a specific conflict between § 113(g)(2) and the FVRA: As explained, § 113(g)(2) permits DHS officers to serve as Acting Secretary automatically even though they are not the “first assistant” to the Secretary’s office. Because the FVRA forbids that arrangement, see 5 U.S.C. § 3345, the “notwithstanding” clause is needed to clarify “which provision prevails.” SW Gen., 137 S. Ct. at 940. By contrast, allowing such officers to serve automatically as Acting Secretary does not conflict with the FVRA’s imposition of a time limit on how long they may serve. See J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 143-44 (2001) (“[W]hen two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” (quotation marks omitted)). Because there is no conflict between § 113(g)(2) and the time limits of 5 U.S.C. § 3346, the “notwithstanding” clause does not override those limits even implicitly, much less “expressly,” 5 U.S.C. § 3347(a)(1).
The government’s position, moreover, creates the untenable result that while a Deputy Secretary of DHS may serve as Acting Secretary for no longer than 210 days, lower-level officials chosen unilaterally by the Department are exempt from that time limit. The Deputy is unquestionably bound by the FVRA’s time limits because the provision of § 113 that permits him to serve as Acting Secretary does not contain a “notwithstanding” clause or supersede any part of the FVRA. To the contrary, it authorizes the Deputy to serve as Acting Secretary by designating
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the Deputy as the Secretary’s “first assistant” for FVRA purposes. 6 U.S.C. § 113(a)(1)(A). Despite the fact that this Senate-confirmed Deputy Secretary is bound by the FVRA’s time limits, the government insists that subordinate, non-Senate-confirmed officers who have been listed in an order of succession that the Department can revise at will are permitted to serve as Acting Secretary “without time limitation.” 85 Fed. Reg. at 46,804. That cannot be what Congress intended.7
The HSA therefore leaves the FVRA’s time limits intact, and nothing in FVRA itself makes those limits inapplicable here. The time limits apply to any official who is “serving as an acting officer as described under section 3345.” 5 U.S.C. § 3346(a). And a person who is the Acting Secretary by virtue of § 113(g)(2) is indeed “serving as an acting officer as described under section 3345” of the FVRA. That is because § 113(g)(2) does not stand in isolation—it connects directly to other portions of § 113, which in turn link directly to § 3345.
Specifically, § 113(a)(1)(A) incorporates the FVRA’s “first assistant” rule (found in § 3345) as the means of authorizing service by an Acting Secretary. It does so by making the Deputy Secretary the “first assistant” to the Secretary for FVRA purposes. Subsection (g)(1) then modifies this rule to account for the possible absence of a first assistant: if no Deputy Secretary is available to serve under § 113(a)(1)(A), the Under Secretary for Management automatically steps in. And if no Under Secretary is available either, the “further order of succession” established under (g)(2) fills out the scheme. In other words, this “further” order of succession extends the limited order of succession provided in (g)(1), and (g)(1), in turn, extends the rule of (a)(1)(A).
7 The government has admitted that a Deputy Secretary who serves as the Acting Secretary under 6 U.S.C. § 113(a)(1)(A) must cease performing that role when the 210-day limit expires. But then what happens? One possibility is that the office must remain vacant from then on. But this would mean that whether the office can be filled indefinitely depends on the fortuity of whether a Deputy Secretary was in place at the start of the vacancy. The other, equally untenable possibility is that the Deputy would have to turn over the reins to whoever is next in line under § 113(g), and that this person would then serve indefinitely—while outranking the Deputy Secretary.
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These provisions thus work with each other, and with the FVRA, to form a single interlocking sequence. Through their connections, a person who is the Acting Secretary under an order of succession adopted pursuant to § 113(g)(2) is ultimately “serving as an acting officer as described under section 3345,” making applicable the FVRA’s time limits. 5 U.S.C. § 3346(a). And as explained earlier, Congress cannot plausibly have intended any other result.
Finally, nothing in the FVRA suggests that its time limits vanish whenever another statute like the HSA provides a supplementary means of designating an acting officer. To the contrary, the FVRA says that provisions like § 113(g)(2) may be used only to designate someone “to perform the functions and duties of a specified office temporarily.” 5 U.S.C. § 3347(a)(1)(A) (emphasis added). Thus, DHS may not utilize § 113(g)(2) to designate someone to perform those functions and duties “without time limitation.” 85 Fed. Reg. at 46,804. III. Because Wolf’s Tenure Was Unlawful, the Policy Must Be Set Aside Under
the APA. The illegality of Wolf’s service as Acting Secretary means that his approval of the policy challenged here cannot stand. That result is required both by the APA (discussed in this section) and by the FVRA (discussed in the next section). Because agency actions that are taken in violation of the FVRA are “not in accordance with law” and are “in excess of statutory jurisdiction, authority, or limitations,” they must be set aside as “unlawful” under the APA. 5 U.S.C. § 706(2). Congress also imposed additional penalties on certain FVRA violations, which go beyond the normal APA remedies for unlawful agency action. See id. § 3348(d) (providing that certain actions are void ab initio and may not be ratified). Those additional FVRA penalties apply when an illegally serving official performs a “function or duty” of a vacant office, as that term is defined in § 3348, which requires that the function or duty in question be one that “only that officer” could take. Id. § 3348(a)(2)(A).
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However, even when the FVRA’s unique penalties do not apply because this definition of “function or duty” is not met, agency actions taken by a person whose acting service violates other portions of the FVRA are still “unlawful” and must be set aside under the APA. 5 U.S.C. § 706(2). In other words, actions taken by an illegally serving official must be set aside under the APA even if the function in question is not assigned exclusively to the vacant office. See L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 34 (D.D.C. 2020).
The FVRA’s text makes this clear. While its enforcement provision sets forth a definition of “function or duty” for purposes of that section and its unique penalties, 5 U.S.C. § 3348(a)(2), the “functions and duties” that the rest of the FVRA governs include a broader array of agency actions. Section 3348 explicitly states that its narrower definition of “function or duty” applies only “[i]n this section.” Id. § 3348(a). And the FVRA uses phrases like “in this section” with precision and intent, as the Supreme Court has explained:
Now add “under this section.” The language clarifies that subsection (b)(1) applies to all persons serving under § 3345. Congress often drafts statutes with hierarchical schemes—section, subsection, paragraph, and on down the line. Congress used that structure in the FVRA and relied on it to make precise cross-references. SW Gen., 137 S. Ct. at 938-39 (citations omitted). By specifying that § 3348’s definition of “function or duty” applies only “in this section,” Congress “ma[d]e [a] precise cross-reference[],” SW Gen., 137 S. Ct. at 939, to clarify that this definition does not apply elsewhere in the FVRA. That definition, therefore, governs only whether the penalties of § 3348 apply, not the meaning of “functions and duties” elsewhere in the Act. The upshot is that demonstrating a violation of 5 U.S.C. § 3345, § 3346, or § 3347 does not require showing that the challenged action was a function that “only that officer” could take. 5 U.S.C. § 3348(a)(2). Even if the unique penalties of § 3348 do not apply, therefore, the standard remedies for unlawful agency action under the APA remain available. See SW Gen., Inc. v. NLRB,
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796 F.3d 67, 79, 80-81 (D.C. Cir. 2015); Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550, 564 (9th Cir. 2016).
Wolf’s approval of the policy at issue here violated § 3345, § 3346, and § 3347 because he was not eligible to be Acting Secretary under those provisions when he approved that policy. Under the APA, Wolf’s “unlawful” action must be set aside. 5 U.S.C. § 706(2). IV. Under the FVRA, the Policy Is Void and May Not Be Ratified.
In enacting the FVRA, Congress was concerned that the standard remedies for unlawful agency action might not be sufficient to deter violations of the Act. The FVRA therefore imposes additional penalties on certain violations of its rules. If “any person” performs “any function or duty” of a vacant office, without validly serving as an acting officer under the FVRA or an agency’s succession statute, then that person’s action “shall have no force or effect.” 5 U.S.C. § 3348(d)(1); see SW Gen., 137 S. Ct. at 938 n.2 (“the general rule” is that “actions taken in violation of the FVRA are void ab initio”). By making such actions “void” and not merely “voidable,” this penalty forecloses defenses such as harmless error and the de facto officer doctrine, SW Gen., 796 F.3d at 79. The FVRA further provides that actions deemed void under this provision “may not be ratified.” 5 U.S.C. § 3348(d)(2); see S. Rep. No. 105-250, at 19 (“A lawfully serving acting officer cannot ratify the actions of a temporary officer whose service does not comply with the Vacancies Reform Act.”).
These additional penalties are triggered when an illegally serving official performs a “function or duty” of a vacant office. That term includes “any function or duty of the applicable office” that is “required by statute to be performed by the applicable officer (and only that officer).” 5 U.S.C. § 3348(a)(2)(A). Wolf’s approval of the policy at issue here satisfies this standard. Indeed, it cannot seriously be argued that the statutes permit anyone but the Secretary to adopt a
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policy like this. That policy was therefore void ab initio and is ineligible for ratification. “The Secretary is the head of the Department and shall have direction, authority, and
control over it.” 6 U.S.C. § 112(a)(2). Establishing Wolf’s new policy required ordering the leadership and personnel from multiple DHS agencies to comply with his directives. The government has cited no statute that allows anyone but the Secretary to issue such a directive. Not only that, but Wolf also relied on additional statutory authority that specifically empowers “[t]he Secretary,” and no one else, to designate DHS employees “as officers and agents for duty in connection with the protection” of federal property. 40 U.S.C. § 1315(b)(1).
The government has elsewhere argued that the term “function or duty” in § 3348 “includes only ‘non-delegable duties’—that is, only those duties . . . that may not be reassigned.” L.M.-M., 442 F. Supp. 3d at 31 (quoting brief). Working from that premise, the government has suggested that no action performed by the Secretary can ever be void under § 3348(d) because the Secretary’s vesting-and-delegation provision allows the Secretary to delegate power to others. See 6 U.S.C. § 112(b)(1). Such delegation, however, is permitted only “except as otherwise provided by this chapter.” Id. And Congress clearly did not intend DHS Secretaries to be able to delegate their status as “the head of the Department” or their “direction, authority, and control over it,” id. § 112(a)(2), to “any . . . employee . . . of the Department,” id. § 112(b)(1). Indeed, every department secretary has delegation authority comparable to that of § 112(b)(1), see L.M.-M., 442 F. Supp. 3d at 31 & n.11, so under the government’s view the most important statutory functions assigned to the highest-level executive branch officers would never be subject to the FVRA’s penalties. That cannot be what Congress intended, particularly because “[i]t was the pervasive use of those vesting-and-delegation statutes” to avoid vacancies legislation “that convinced Congress of the need to enact the FVRA” in the first place. Id. at 34.
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For similar reasons, the Secretary’s authority under 40 U.S.C. § 1315 to transfer personnel

from any DHS agency to serve temporarily under the Federal Protective Service is a power that

only the Secretary may exercise. The government argues that “no statute or regulation prevents

the Secretary from delegating this authority,” MTD 44, but restrictions on delegation need not be

explicitly stated—as here, they can be inferred from statutory structure and context. See United

States v. Giordano, 416 U.S. 505, 514 (1974) (the question is whether the statute, “fairly read, was

intended to limit the power” to the specified officer); U.S. Telecom Ass’n v. FCC, 359 F.3d 554,

565 (D.C. Cir. 2004) (requiring only “affirmative evidence of a contrary congressional intent”);

Shook v. D.C. Fin. Responsibility & Mgmt. Assistance Auth., 132 F.3d 775, 782 (D.C. Cir. 1998)

(finding delegation foreclosed based on “implied limitation”).

In sum, Chad Wolf performed a “function or duty” that is exclusively assigned to the

Secretary when he established the policy at issue here. Because he did so without legal authority

under the FVRA or the HSA, that policy is void and “may not be ratified.” 5 U.S.C. § 3348(d)(2).

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss should be denied.

Respectfully submitted,

Dated: November 5, 2020

Brianne J. Gorod Brianne J. Gorod

Elizabeth B. Wydra (DC Bar No. 483298) Brianne J. Gorod (DC Bar No. 982075) Brian R. Frazelle (DC Bar No. 1014116) CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th Street NW, Suite 501 Washington, D.C. 20036 (202) 296-6889 brianne@theusconstitution.org

Counsel for Amicus Curiae

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