1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SOUTHERN POVERTY LAW CENTER,

Plaintiff,

v.

U.S. DEPARTMENT OF HOMELAND 

SECURITY, et al.,

Defendants.

Civil Action No. 18-0760 (CKK)

MEMORANDUM OPINION

(March 15, 2023)

This case concerns detained immigrants’ access to legal counsel and conditions of 

confinement at three1 Immigration and Customs Enforcement (“ICE”) detention facilities: LaSalle 

ICE Processing Center in Jena, Louisiana (“LaSalle”); Pine Prairie ICE Processing Center in Pine 

Prairie, Louisiana (“Pine Prairie”); and Stewart Detention Center in Lumpkin, Georgia (“Stewart”)

(collectively, “the Facilities”). Pl.’s Second Am. Compl., ECF No. 70, ¶ 13. Plaintiff Southern 

Poverty Law Center (“SPLC”) is an organization that provides representation for detained persons 

at these three Facilities in connection with bond, parole, and removal proceedings. Id. ¶¶ 100-01, 

318.

Before the Court is Defendants’ [218] Partial Federal Rule of Civil Procedure 12(c) Motion 

for Judgment on the Pleadings. Defendants move for partial judgment on the pleadings as to 

Plaintiff’s third party access-to-courts claim (Count One), third-party procedural due process claim

(Count Three), Administrative Procedure Act (“APA”) claim (Count Six), and First Amendment 

1

 The Court dismissed as moot all claims as against a fourth facility, Irwin County Detention 

Center in Ocilla, Georgia, in its last substantive opinion in this case. SPLC v. DHS, 605 F. Supp. 

3d 157, 160 n.1 (D.D.C. 2022). 
2

claim (Count Four). The Court agrees that, based on Plaintiff’s allegations, Counts One and Six

fail as a matter of law. The Court disagrees, however, that Count Four fails at this early stage of 

dispositive briefing. Finally, the Court concludes that the parties’ papers are presently insufficient 

to resolve Defendants’ challenge to Count Three, so it orders supplemental briefing. Accordingly, 

and upon consideration of the briefing,2 the relevant authorities, and the entire record, the Court 

GRANTS IN PART, DENIES IN PART, AND HOLDS IN ABEYANCE IN PART

Defendants’ [218] Partial Federal Rule of Civil Procedure 12(c) Motion for Judgment on the 

Pleadings.

I. BACKGROUND

As the Court explained in its last opinion, Plaintiff Southern Poverty Law Center (“SPLC”)

provides, among other things, free legal services to immigrants, including those civilly detained 

by ICE. SPLC v. DHS, 605 F. Supp. 3d 157, 161 (D.D.C. 2022) (“SPLC II”). This action concerns 

the work of its constituent organization, the Southeast Immigrant Freedom Initiative (“SIFI”), and 

the legal services it provides to detainees at the Facilities. Id. SIFI, whether through attorneys 

employed by SPLC or through volunteer attorneys, “travel to the [Facilities] for week-long 

rotations in order to meet with potential clients, gather evidence, draft legal documents, and assist 

clients in obtaining release on bond or parole.” Am. Compl. ¶ 100. Broadly, Plaintiff alleges that 

2 The Court’s consideration has focused on the following:

• Plaintiff’s Second Amended Complaint, ECF No. 70 (“Am. Compl.”);

• Defendants’ Partial Federal Rule of Civil Procedure 12(c) Motion for Judgment on the 

Pleadings, ECF No. 218 (“Mot.” or “Motion”);

• Plaintiff’s Memorandum of Points and Authorities in Opposition to Defendants’ Partial 

FRCP 12(c) Motion for Judgment on the Pleadings, ECF No. 221 (“Opp.”);

• Defendants’ Reply Memorandum in Support of their Partial Federal Rule of Civil 

Procedure 12(c) Motion for Judgment on the Pleadings, ECF No. 222 (“Repl.”); 

In an exercise of its discretion, the Court finds that holding oral argument would not be of 

assistance in rendering a decision. See LCvR 7(f). 
3

ICE maintains conditions of confinement across all Facilities that unconstitutionally impede SIFI 

and SPLC clients from accessing their SIFI and/or SPLC counsel. Id. ¶ 118. Based on these 

factual allegations, Plaintiff advances six claims for relief: (1) denial of access to courts in 

violation of the Due Process Clause of the Fifth Amendment; (2) denial of the right to counsel in 

violation of the Due Process Clause of the Fifth Amendment; (3) denial of the right to a full and 

fair hearing in violation of the Due Process Clause of the Fifth Amendment; (4) punitive conditions 

of confinement in violation of the Due Process Clause of the Fifth Amendment; (5) on behalf of 

Plaintiff itself, breach of the Free Speech Clause of the First Amendment; and (6) arbitrary and 

capricious conduct in violation of the APA. 

On May 7, 2020, Plaintiff filed a Motion for a Temporary Restraining Order, asking that 

the Court (1) preliminarily grant the relief sought in the operative complaint and (2) order 

Defendants to implement certain hygienic protocols in light of the COVID-19 pandemic. The 

Court granted that motion in part on June 17, 2020, and entered a preliminary injunction ordering 

Defendants, among other things, to provide more and better means for detainees to communicate 

with counsel. SPLC v. DHS, Civ. A. No. 18-0760, 2020 WL 3265533, at *1 (D.D.C. June 17, 

2020) (“SPLC I”). In so doing, the Court found that Plaintiff was likely to succeed on the merits 

of its claim that ICE’s conditions of confinement across the four Facilities were punitive in 

violation of substantive due process guaranteed by the Fifth Amendment. Id. at *18. In SPLC II, 

the Court granted in part and denied in part Defendants’ partial motion to dismiss for lack of 

jurisdiction, holding that it had jurisdiction to review Plaintiff’s APA claim and Fifth Amendment 

claims to the extent they are not predicated on removal proceedings. 605 F. Supp. 3d at 167 (“on 

the one hand, where a Fifth Amendment claim centers on the process due in removal proceedings, 

it is barred; where a Fifth Amendment claim centers on the process due in any other proceedings, 
4

on the other hand, it is not barred”). 

With this procedural background in mind, the Court now turns to the resolution of 

Defendants’ [218] Partial Federal Rule of Civil Procedure 12(c) Motion for Judgment on the 

Pleadings.

II. LEGAL STANDARD

“After the pleadings are closed—but early enough not to delay trial—a party may move 

for judgment on the pleadings.” Fed. R. Civ. P. 12(c). A motion brought pursuant to Rule 12(c) 

requires the Court to render “a judgment on the merits . . . by looking at the substance of the 

pleadings and any judicially noted facts.” All. of Artists & Recording Cos., Inc. v. Gen. Motors 

Co., 162 F. Supp. 3d 8, 16 (D.D.C. 2016). In other words, the moving party must “demonstrate 

that the law entitles him to win given the undisputed facts that have been alleged in both parties’

pleadings.” Murphy v. Dep’t of Air Force, 326 F.R.D. 47, 48 (D.D.C. 2018). Although Rule 

12(c) motions have frequently been analyzed pursuant to the same framework as motions 

brought under Rule 12(b)(6), a Rule 12(c) motion “comes closer to a summary judgment type of 

determination.” Lopez v. Nat’l Archives & Records Admin., 301 F. Supp. 3d 78, 84 (D.D.C. 

2018). Accordingly, the Rule 12(c) burden is “substantial” and requires the movant to 

demonstrate “both that there is no material dispute of fact” and that “the law is such that the 

movant is entitled to judgment as a matter of law.” Id. (citing Tapp v. WMATA, 306 F. Supp. 3d 

383, 391–92 (D.D.C. 2016)).

IV. DISCUSSION

A. Substantive Due Process (Access to Courts)

Defendants first move for judgment as to Plaintiff’s first claim for relief, denial of access 

to courts in violation of the Fifth Amendment, advanced on behalf of its clients. Specifically, 
5

Plaintiff pleads that its clients “require meaningful access to [administrative proceedings] in order 

to seek release on both bond and parole . . . .” Am. Compl. ¶ 318. In Plaintiff’s view, the 

challenged conditions of confinement “unjustifiably obstructed the availability of meaningful legal 

professional representation . . . and impede upon other aspects of access to the courts.” Id. ¶ 319. 

As the Court explained in its last opinion, the Court construed these two paragraphs to mean that 

Plaintiff pleads conditions of confinement that unconstitutionally limit their access to the 

administrative proceedings in which, in their discretion, an immigration judge may release an 

immigrant from civil detention. See SPLC II, 605 F. Supp. 3d at 159; see also Ams. for Immigration 

Just. v. DHS, Civ. A. No. 22-3118, 2023 WL 1438376, at *17 (D.D.C. Feb. 1, 2023) (“AIJ”)

(construing complaint advancing same claim as to different facilities). Plaintiff’s operative 

complaint does not identify or describe any current or future proceedings, nor does it identify

which of their clients would pursue such a proceeding and on what basis. 

The Constitution protects an individual’s right “to get into court, [and that] such access be 

adequate, effective, and meaningful.” Broudy v. Mather, 460 F.3d 106, 117 (D.C. Cir. 2006) 

(internal quotation marks omitted) (involving access to administrative proceedings). For a 

“forward-looking claim,” i.e., a claim that certain conditions prevent a litigant from vindicating a 

legal right in legal proceedings, a plaintiff must demonstrate (1) that they have a “non-frivolous 

underlying claim” and (2) that the challenged conditions “completely foreclose[]” access to the 

legal proceedings in which the plaintiff seeks to vindicate a legal right. Id. at 185.3

 As the Supreme 

Court has explained, “the very point of recognizing any access claim is to provide some effective 

3

 Plaintiff argues that the Court should apply a slightly different rule used by certain district 

courts in the Ninth Circuit. Opp. at 15-16 (relying on, among other cases, Torres). Because this 

Court is bound by the precedent set by the United States Court of Appeals for the District of 

Columbia Circuit, the Court may not do so. 
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vindication for a separate and distinct right to seek judicial relief for some wrong.” Christopher 

v. Harbury, 536 U.S. 403, 414-15 (2002). Therefore, the Court has stressed that a plaintiff must 

demonstrate, with particularity, that the underlying claim is, in fact, nonfrivolous and arguable. 

See id. at 415. 

Although it may be the case that Plaintiff currently represents a client who is unlawfully 

detained, and that the challenged conditions of confinement may utterly foreclose that client’s 

ability to secure his liberty consistent with the applicable statute(s), Plaintiff has pleaded 

insufficient facts to determine whether any such claim is nonfrivolous. See AIJ, 2023 WL 

1438376, at *17; cf. Franklin v. District of Columbia, 163 F.3d 625, 633 (D.C. Cir. 1998) 

(requiring showing for standing purposes). As a threshold matter, although Plaintiff is correct that 

its clients necessarily seek to vindicate a liberty interest against unlawful civil detention, 

immigration detention is presumptively constitutional. See Jennings v. Rodriguez, 138 S. Ct. 830, 

843-44 (2018) (plurality op.). Without additional facts regarding Plaintiff’s clients, the Court 

cannot determine whether they have any claim to release, much less a “nonfrivolous” or “arguable” 

claim. Moreover, Plaintiff does not in any meaningful respect identify past, present, or future bond 

proceedings, merely noting that SIFI has and will in the future represent clients in such 

proceedings.4

B. Procedural Due Process

Count Three presents a different problem. Unlike a full-and-fair-hearing claim, where a 

4

 Plaintiff briefly describes an instance where Plaintiff “learned about a potential client just prior 

to his bond hearing” and the volunteer attorney felt that they had insufficient time to prepare for 

the hearing because of a “delay of well over an hour prevented the attorney from speaking with 

the client prior to the bond hearing.” Am. Compl. ¶ 200. Plaintiff lacks third-party standing to 

advance claims for hypothetical clients, AIJ, 2023 WL 1438376, at *10, and the Court cannot 

credibly infer that an adverse disposition was the consequence of conditions of confinement, as 

opposed to late client-intake or the lack of meritorious argument. 
7

plaintiff must demonstrate a total bar to the presentation of a nonfrivolous claim, a plaintiff must 

instead surmount the familiar balancing test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976): 

(1) whether a life, liberty, or property interest is at issue in the government action; (2) the risk of 

an erroneous deprivation of the interest through the procedures used as well as the value of 

additional safeguards; and (3) the interest of the government in using the current procedures versus 

different procedures. Effectively, Count Three asks whether the Constitution guarantees an 

immigration detainee effective counsel in bond proceedings. As to the first prong, Plaintiff is quite 

right that each individual in the United States has a generalized right to be free from unlawful 

detention, see Zadvydas v. Davis, 533 U.S. 678, 698 (2001), and that each alien held in civil 

detention has a liberty interest in their release if the detention is unlawful, see Hernandez v. 

Sessions, 872 F.3d 976, 992-93 (9th Cir. 2017). 

The ultimate balancing question of whether all instrumentalities and agents of the federal 

government must forgo any actions that severely impact a pre-existing attorney-client relationship 

in a bond proceeding is much more fraught. At least two Courts of Appeals have held that there 

some right to counsel in certain immigration proceedings as a matter of due process. E.g., C.J.L.G. 

v. Barr, 923 F.3d 622 630 (9th Cir. 2019) (en banc) (Paez, J., concurring) (collecting cases); 

Aguilera-Enriques v. INS, 516 F.2d 565, 568 (6th Cir. 1975) (assuming some right in some 

circumstances, but not in instant case). At the same time, other courts have found explicitly that 

there is no “due process right to appointed counsel in immigration proceedings.” E.g., United 

States v. Cabrera-Ochoa, Crim. A. No. 5:15-206-BLF-1, 2016 WL 4204551, at *9 (N.D. Cal. Aug. 

8, 2016).5

 It does not appear than any court has found an unqualified right to counsel in 

5 Cf. also Maldonado-Perez v. INS, 865 F.2d 328, 332-33 (D.C. Cir. 1989) (noting that there is 

no Sixth Amendment “right to counsel at deportation hearings” to hold that there is no 

“constitutional procedural due process [right] as some form of meaningful or fair hearing” to be 
8

immigration bond proceedings. 

Ultimately, the extent to which there is a procedural due process right to counsel, and under 

what circumstances, is the central question as to the sufficiency of Plaintiff’s pleadings on Count 

Three. Yet both Plaintiff and Defendants devote remarkably little briefing as to this question, little 

more than three pages between them. Therefore, the Court will hold in abeyance Defendants’ 

motion as to Count Three and order supplemental briefing. The parties shall address: (1) the 

circumstances providing a right to counsel in bond proceedings under Mathews v. Eldridge, and 

(2) whether the Court in Harbury effectively foreclosed a procedural due process claim in similar 

circumstances where relief is available via another constitutional claim. See 536 U.S. at 415 

(“There is, after all, no point in spending time and money to establish the facts constituting [a 

barrier to a full and fair hearing] when a plaintiff would end up just as well off after litigating a 

similar case without [that] element”).

C. APA Claim

Next, Plaintiff claims that Defendants’ purported failure to enforce the PBNDS across each 

Facility is arbitrary, capricious, or otherwise not in accordance with law in violation of the 

Administrative Procedure Act. Am. Compl. ¶¶ 350-51.6

 More specifically, Plaintiff presses an 

“Accardi” claim, predicated upon the Supreme Court’s decision in United States ex rel. Accardi v. 

Shaughnessy, 347 U.S. 260 (1954). In that case, the Court held that an agency’s failure to follow 

present in-person in a removal hearing). 

6

 Plaintiff claims that it “pleaded that Defendants decided not to enforce the PBNDS.” Opp. at 

28 (emphasis added) (citing Am. Compl. ¶¶ 265-70, 276-80, 281-85, and 288-31). Not so. As 

Plaintiff admits in the next sentence, these paragraphs “detail[] Defendants’ adoption of and 

failure to enforce [the] PBNDS.” Id. A negligent failure to enforce a policy is not a decision to 

completely scuttle the policy, and Plaintiff may not belatedly amend its complaint in its 

pleadings––nor may the Court rewrite the complaint to draw argumentative inferences in 

Plaintiff’s favor, Yamaha Motor Corp., U.S.A. v. United States, 779 F. Supp. 610, 611 (D.D.C. 

1991). 
9

their own “existing valid regulations” when coming to an agency decision may render that decision 

arbitrary or capricious. Id. at 266. This doctrine continues to be frequently invoked, including in 

this Circuit. E.g., Battle v. FAA, 393 F.3d 1330, 1336 (D.C. Cir. 2005); Steenholdt v. FAA, 314 

F.3d 633 (D.C. Cir. 2003). 

As the Court explained in AIJ, an Accardi claim is simply a subset of claims for relief 

cognizable under the APA. See Damus v. Nielsen, 313 F. Supp. 3d 317, 336-37 (D.D.C. 2018) 

(JEB). Therefore, as a threshold matter, by invoking Accardi, Plaintiff must nevertheless challenge 

a discrete and final action that is required by law. See Lujan v. Nat’l Wildlife Federation, 497 U.S. 

871, 890 (1990). In this regard, and as the Court addressed in AIJ, an Accardi claim at the motionto-dismiss stage often turns on how a plaintiff has pleaded the claim.7

 Where a plaintiff challenges 

many, individual failures to follow an agency policy, such a claim fails as a matter of law. See 

2023 WL 1438376, at *17-18 (discussing C.B.G. v. Wolf, 464 F. Supp. 3d 174, 225 (D.D.C. 2020) 

(CRC) (similar)). Where, however, a plaintiff challenges one, overarching agency decision to no 

longer enforce or apply an agency policy, such a challenge may be cognizable under Accardi. See 

id.

In an effort to cast their claim as cognizable under the APA, Plaintiff relies on, among other 

cases, Ramirez v. ICE, 310 F. Supp. 3d 7 (D.D.C. 2018) (CRC). In that case, a class of detainees 

challenged ICE’s failure to conduct a statutorily-mandated determination before placing them in 

certain detention facilities. See id. at 12-13. After ICE authorities made their determinations as to 

the representative class members, the representative class members effectively requested the Court 

to set aside those detention determinations as not otherwise in accordance with law. See id. at 21. 

7

 For the sake of brevity, the Court does not rehash the entirety of its discussion here. Rather, 

the Court incorporates by reference the entirety of that analysis and refers the reader to AIJ for 

further detail. 
10

Unlike Ramirez, here, Plaintiff is asking the Court to “inject itself into the day-to-day 

agency management” of facilities run by contractors, which, Ramirez agreed, would not be 

cognizable under the APA. See id. Plaintiff does not ask the Court to set aside individual 

determinations on detention locations, but rather to intervene in the management of several 

detention facilities entirely. More problematic for Plaintiff’s Accardi challenge, Plaintiff insists 

that the Court do so despite not pleading that Defendants have made any concerted, final decision 

to affirmatively cause the challenged conditions of confinement. 

The Court of Appeals has made clear that “[w]hile a single step or measure is reviewable, 

an on-going program or policy is not, in itself, a ‘final agency action[.]’” Cobell v. Norton, 240 

F.3d 1081, 1095 (D.C. Cir. 2001). Put differently, Plaintiff “‘cannot seek wholesale improvement 

of a program by court decree, rather than in the offices of [ICE or DHS] or the halls of Congress, 

where programmatic improvements are normally made.’” Id. (cleaned up) (quoting Lujan, 497 

U.S. at 890). For example, a plaintiff may not challenge through the APA ICE’s alleged failures 

to implement certain COVID policies at various detention facilities if those failures are not 

predicated upon a single, concerted decision to forgo enforcement. See C.B.G., 464 F. Supp. 3d 

at 225. Similarly, a plaintiff may not challenge wholesale telephonic access policies to 

immigration proceedings where it is the outcome of the proceedings, and not attendant policies, 

that actually constitutes a final decision from which legal consequences flow. Nat’l Immigration 

Project of Nat’l Lawyers Guild v. EOIR, 456 F. Supp. 3d 16, 30-31 (D.D.C. 2020). 

To be sure, since Cobell, the Court of Appeals has permitted challenges to certain policies 

or practices under the APA. E.g., Xie v. Kerry, 780 F.3d 405 (D.C. Cir. 2015) (request that court 

order State Department to adjudicate all visa applications consistent with statutory mandate was 

challenge to final agency action); Venetian Casino Resort, LLC v. EEOC, 530 F.3d 925 (D.C. Cir. 
11

2008) (challenge to agency decision “to adopt a policy of disclosing confidential information” in 

agency adjudications was challenge to final agency action). Both cases, however, involved 

requests “to enjoin or compel a discrete agency action—such as requiring adjudication of Xie’s 

visa application or enjoining the disclosure of Venetian Casino’s confidential information without 

notice.” Garcia v. Stewart, 531 F. Supp. 3d 194, 212 (D.D.C. 2021). Here, Plaintiff’s challenge 

does not center on any individual, discrete determination of rights or responsibilities, but is rather 

a broad attack on Defendant’s supervision of independent contractors’ management of conditions 

of confinement at three detention facilities.8

More specifically, Plaintiff has pled that Defendants “have failed miserably to ensure 

compliance with” the PBNDS. Am. Compl. ¶ 351. Put differently, ICE “‘do[es] not ensure 

adequate oversight or systemic improvements in detention conditions,” in violation of the PBDNS. 

Id. ¶ 309 (quoting DHS Office of Inspector General, ICE’s Inspections and Monitoring of 

Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements (OIG-18-

67) 4 (June 2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67-

Jun18.pdf). Negligent failure to enforce a policy, however, is not a concerted, final decision to 

functionally eliminate the policy altogether. 

Because the Court concludes that individual, failures to enforce the PBNDS at the Facilities 

are not “final” agency actions for the purposes of Accardi, the Court does not reach whether the 

PBNDS are “binding” in such a way as to permit APA review. In sum, the Court holds that 

Plaintiff has failed to state an APA claim, and therefore cannot ultimately prevail on the merits of 

8

 The rest of the authority on which Plaintiff relies is equally distinguishable on these same 

grounds. See, e.g., Arecly, R. v. Nielsen, 319 F. Supp. 3d 110, 139 (D.D.C. 2018) (involving 

individual, final decisions on parole requests); R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 184 

(D.D.C. 2015) (involving individual, final decisions in bond requests). 
12

such a claim as a matter of law. 

D. First Amendment

Finally, Defendants move to dismiss Count Four, Plaintiff’s First Amendment claim. 

Plaintiff advances two theories on this claim: (1) unconstitutional restriction of speech with their 

clients, Am. Compl. ¶¶ 337-38, and (2) unconstitutional viewpoint discrimination, id. ¶¶ 339-40. 

The first theory essentially seeks to advance the converse of the Court of Appeals’ holding in Ukr.-

Am. Bar Ass’n, Inc. v. Baker, 893 F.2d 1374 (1990), in which it concluded that the First 

Amendment did not provide a legal services organization with a right to speak to unrepresented 

immigration detainees, id. at 1381-82. In other words, Plaintiff argues in its first theory that an 

utter breakdown in attorney-client communications violates a First Amendment right to speak with 

their clients. Defendants’ Motion barely addresses this first theory, if at all, so the Court cannot 

enter judgment as to this first theory. 

As to the second theory, the Court must determine whether Plaintiff has advanced such 

facts as to permit a reasonable factfinder to conclude that Defendants restricted Plaintiff’s access 

to their clients because of the viewpoint Plaintiff would advance in its communications with its 

clients. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983) (the 

government may not “suppress expression merely because public officials oppose the speaker’s 

view”). In such a challenge, a plaintiff must usually demonstrate a colorable question that 

Defendants engaged in a “pattern of unlawful favoritism” where Defendants “prevented [Plaintiff] 

from speaking” with a client while “someone espousing another viewpoint was permitted to do 

so.” See Frederick Douglas Found., Inc. v. District of Columbia, 531 F. Supp. 3d 316, 331 (D.D.C. 

2021) (internal quotation marks omitted).9

 In response, Defendants’ “mere recitation of 

9 For the purposes of notice pleading, a plaintiff need only allege summarily that “‘the 
13

viewpoint-neutral rationales (or the presentation of a viewpoint-neutral guideline) for its decisions 

to reject the [communications at issue] does not immunize [its] decisions from scrutiny.” See Am. 

Freedom Def. Initiative v. WMATA, 901 F.3d 356, 365 (D.C. Cir. 2018) (cleaned up). 

Here, Plaintiff essentially alleges that Defendants restrict pro bono legal organizations 

from communicating with detainees about the merits of their cases and immigration law generally 

while permitting different organizations to do precisely that. For example, the operative complaint 

alleges that, when an SPLC attorney identified themselves as such, an ICE officer at one facility 

asked her whether “she was helping to support illegal immigration.” Am. Compl. ¶ 214 (internal 

quotation marks omitted). In another alleged instance of viewpoint discrimination, Plaintiff claims 

that a Stewart employee required an SPLC volunteer interpreter to remove her bra in lieu of using 

a metal detection wand while that same employee did not require another visitor to Stewart to do 

the same. Id. ¶ 209. The operative complaint includes other instances of harassment that, it alleges, 

were aimed at SPLC attorneys qua volunteer immigration attorneys. See, e.g., id. ¶ 213. These 

allegations raise a colorable question that the Facilities have restricted Plaintiff’s speech while 

permitting others to engage in similar speech that does not advocate in favor of decreased 

immigration restrictions. Cf. St. Michael’s Media, Inc. v. Mayor and City Counc. of Baltimore, 

566 F. Supp. 3d 327, 367 (D.D.C. 2021) (in holding that municipal restriction on right-wing 

peaceful protest was not viewpoint-neutral and therefore unconstitutional, noting that “disparate 

treatment towards people or things sharing the characteristic that was the nominal justification for 

government has singled out a subset of messages for disfavor based on the views expressed.’” 

See Zukerman v. USPS, 961 F.3d 431, 446 (D.C. Cir. 2020) (quoting Matal v. Tam, 137 S. Ct. 

1744 (2017) (Kennedy, J., concurring in part and concurring in the judgment)) (in claim that 

USPS discriminated against plaintiff for content of his mail, mere allegation that “he was and is 

prevented from speaking through the [USPS] program while someone else espousing another 

viewpoint was and still is permitted to do so” sufficient (cleaned up)). 
14

the action” suffices to establish pattern of viewpoint discrimination). 

It may well be the case that the instances alleged in the operative complaint are isolated 

and not otherwise reflective of a pattern of practice of discrimination against pro bono immigration 

attorneys, but that is a question best resolved after discovery. Therefore, the Court must deny the 

Motion as to Count Four, Plaintiff’s First Amendment claim.

V. CONCLUSION

For the foregoing reasons, Defendants’ [218] Partial Federal Rule of Civil Procedure 12(c) 

Motion for Judgment on the Pleadings is GRANTED IN PART, DENIED IN PART, AND 

HELD IN ABEYANCE IN PART. The Court grants the Motion as to Counts One and Six, 

denies the Motion as to Count Four, and holds in abeyance the Motion as to Count Three. An 

appropriate Order accompanies this Memorandum Opinion. 

Date: March 15, 2023

 /s/

COLLEEN KOLLAR-KOTELLY 

United States District Judge