OPINION ORDER MOTION TO RECONSIDER

HAROLD BAER JR., District Judge

In a June 29, 2004 Opinion and Order, this Court directed Immigration and Customs Enforcement ("ICE") to expunge inaccurate language that referred to Doe's arrest for an immigration violation. That has, to my knowledge, been done. ICE has asked me to reconsider the balance of my ruling that directed them to "reconsider and correct" the procedure by which non-criminal immigration information is entered into the National Crime Information Center ("NCIC") database. The Government's motion is made pursuant to Federal Rule of Civil Procedure 59(e) and Local Civil Rule 6.3. The motion is GRANTED.

I. BACKGROUND

The facts of this case are set forth in detail in my June 29, 2004 Order, familiarity with which is presumed. Doe v. Immigration and Customs Enforcement, 2004 WL 469464 (S.D.N.Y. June 29, 2004). In short, on September 18, 2002, the plaintiff brought an Order to Show Cause that sought to expunge a 1975 immigration entry from the NCIC database [hereinafter, "criminal record"]. The entry had been responsible for the refusal by two police departments to hire plaintiff. This Court granted Doe's request but went further and directed that ICE correct the procedure by which non-criminal immigration information is entered into a criminal database and thus follows the subject, frequently to his detriment, forevermore. While the Government expunged Doe's NCIC record as ordered by the Court, it moved for reconsideration as to the balance of the Order.

II. STANDARD OF REVIEW

Local Civil Rule 6.3 provides that a party may submit a motion for reconsideration within ten days after entry of the court's decision. Similarly, pursuant to the Federal Rules of Civil Procedure 59(e), a party can make a motion to amend or alter the judgment no later than 10 days after judgment has been entered. In both cases, the movant must point to decisions, overlooked by the court, which might reasonably be expected to change the Court's earlier decision. See, e.g., Shrader v. CSX Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1995). This is a high bar to meet — I am bound to strictly apply this standard "so as to avoid repetitive arguments on issues that have been fully considered by the court." Anglo American Ins. Group v. Calfed Inc., XCF, 940 F. Supp. 554, 557 (S.D.N.Y. 1996). The Government has satisfied the standard here.

III. DISCUSSION

The Government argues that this Court lacked subject matter jurisdiction to award injunctive relief and further, that there was statutory authority for the inclusion of civil immigration information in the NCIC database. I will first address the question of ICE's statutory authority.

A. Statutory Authority

In its June 29, 2004 Order, this Court found that there was no statutory authority for entering non-criminal immigration information into the NCIC database. Thus, the Government was required to expunge all non-criminal immigration information from Doe's criminal record as well as reconsider and correct its procedure with regard to entering non-criminal immigration information into the NCIC. The information provided by the Government in this motion to reconsider fails to convince me that any statutory authority exists for the inclusion of this non-criminal information.

The Government argues that there is statutory authority pursuant to 28 U.S.C. § 534. The Government claims that immigration information is considered crime records under the statute because immigration violators are subject to criminal penalties. In the alternative, the Government claims that this information can also be entered under the "other records" provision of this statute. The plain language of the statute and canons of statutory construction reveal that both arguments are unavailing. 28 U.S.C. § 534 provides in relevant part that:

(a) The Attorney General shall —

(1) acquire, collect, classify, and preserve identification, criminal identification, crime, and other records; . . .

(4) exchange such records and information with and for the official use of, authorized officials of the Federal Government.

On several fronts, the Government misinterprets this provision to provide support for their position. First, the Government conflates the distinction between civil and criminal immigration information, and thus, read the crime records provision as allowing them to enter civil immigration information. See, e.g., Letter from Megan L. Brackney, Assistant United States Attorney to Honorable Harold Baer, Jr. (May 17, 2004) (explaining that immigration officers are "required to enter into the NAILS [National Automated Immigration Lookout System] information concerning persons, who inter alia, were suspected of violating the criminal or civil provisions of the Immigration and Nationality Act ("INA")" and those records are included in the NCIC) (emphasis added). Information relating to persons subject to a civil order of deportation does not automatically qualify as a crime record. The Government must show that the person "willfully" violated the statute to warrant entry as part of a criminal record. See, e.g., 8 U.S.C. § 1253(a)(1) (criminal penalties for "willful" failure to depart after entry of a removal order); 8 U.S.C. § 1306 (criminal penalties for "willful" failure to comply with registration requirements). The Government made no such showing here, nor did it even attempt to do so.

Doe was never subject to any criminal proceedings or penalties. Doe's criminal record was created based on a mere lapse in his immigration status. The Government did not demonstrate that Doe willfully violated any immigration law and was thus subject to criminal liability under either 8 U.S.C. § 1253(a)(1) or 8 U.S.C. § 1306. Instead, the entry of Doe's civil immigration information into the NCIC illustrates the Government's overly broad and inaccurate application of the crime records provision of 28 U.S.C. § 534(a). Cf. Menard v. Saxbe, 498 F.2d 1017 (D.C. Cir. 1974) (holding that record of lawful police arrest and overnight detention, where arrestee was later released without charge, does not qualify as a "crime record" that can be disseminated via NCIC).

Second, ordinary canons of statutory interpretation do not support the Government's contention that "other records" is a catch-all provision for the Government to enter any and all types of records into the NCIC database. The legislative history of H.R. 977, the 1929 bill that became the NCIC statute in 1930, suggests that Congress intended the record categories to be construed narrowly. The sponsor of the original bill only sought authorization for the Department of Justice to collect and exchange "criminal identification records." H.R. REP. No. 85-71, at 1 (Dec. 20, 1929). The House Judiciary Committee expanded the original authorization by amending the bill to allow the collection and exchange of "criminal identification and other records." Id. (emphasis added). Applying the maxim ejusdem generis, the term "other records" necessarily means records similar to those listed. See, e.g., Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15 (2001) (applying canon of ejusdem generis that states "[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.") (internal citation omitted).

The logical extension of the Government's interpretation of the "other records" provision would give them unlimited power to create, what at least appears to be, a criminal record based on a broad range of civil administrative information. Worse yet, as seen in this case, it may very well be used to deny employment and other opportunities. Many statutes combine criminal and civil penalties, bringing them within the ambit of the NCIC. See, e.g., 26 U.S.C. § 7203 (criminal penalties for the willful failure to file tax return and/or pay tax); 33 U.S.C. § 1319(c) (criminal penalties for negligent and knowing violations of the Clean Water Act). Non-citizens, as well as citizens, could be subjected to a host of penalties as a result of criminal records generated from civil information. It is hard to believe that this was the desired result of the NCIC statute.

Lastly, the fact that Congress has the power to alter the status quo, but has not done so here, militates against the Government's argument in this case. See, e.g., Missing Children Act of 1982, 28 U.S.C. § 534(a)(2), (3); Violence Against Women Act of 1994, 28 U.S.C. § 534(e). The legislation in both houses of Congress that would provide the needed statutory authority for ICE to enter non-criminal immigration information into the NCIC has not passed. See S. 2365, 109th Cong. § 5 (2005) (referred to the Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment on 9/25/2005 where it remains); H.R. 3776, 109th Cong. § 5 (2005) (referred to the Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment on 9/25/2005 where it remains). If the Government's interpretation of the legislative history of "other records" was correct, these attempts at Congressional amendments would be superfluous. See, e.g., Pennsylvania Dept. of Public Welfare v. Davenport, 495 U.S. 552, 562 (1990). ("Our cases express a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment.").

But, notwithstanding the above, it is well-established that if there is no subject matter jurisdiction, a court cannot decide the controversy. Despite the risk immigrants' face as a result of harms that may follow from misleading information such as I found here, injunctive relief in this case cannot be granted, since it appears that Doe lacks the requisite standing.

B. Subject Matter Jurisdiction

The Government argues both that Doe lacks standing and that the case is moot. Standing is a jurisdictional prerequisite in federal courts. See, e.g., Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 254 (1994). Only now does the Government raise the standing issue, but since the issue of subject matter jurisdiction is never waived, the timing of the Government's objection, while unfortunate, is beside the point.See, e.g., U.S. v. Cotton, 535 U.S. 625, 630 (2002). Thus, I must now determine if the petitioner has standing for me to grant injunctive relief.

1. Standing Arguments

Standing is a required element litigants must meet before bringing a case in federal court. To establish standing, a litigant must demonstrate 1) personal injury, 2) causation, and 3) redressability. See, e.g., Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979) ("In order to satisfy Art. III, the plaintiff must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant."); Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 38 ("[W]hen a plaintiff's standing is brought into issue the relevant inquiry is whether, assuming justiciability of the claim, the plaintiff has shown an injury to himself that is likely to be redressed by a favorable decision."). The inquiry is the same when statutory issues are involved. O'Shea v. Littleton, 414 U.S. 488, 494 (1974).

In this instance, Doe was personally injured by the direct actions of ICE. Due to the misleading immigration information provided by ICE, information was entered into the NCIC that suggested Doe had a criminal record. As a result of this entry, it is undisputed that Doe was turned down for a police officer position by the Metropolitan Police Department of the District of Columbia and the Baltimore Police Department. Doe's right to secure employment and earn a living was directly impacted by the actions of the U.S. Government, making him particularly suited to assert this claim.

However, the Government further argues that Doe lacked standing to seek what the Government characterizes as injunctive relief. To establish standing to seek injunctive relief, the litigant must demonstrate that "he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct." City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983). There must be continuing, adverse effects of the alleged illegal conduct to sustain an injunctive relief claim. See, e.g., Littleton, 414 U.S. at 495-96. In other words, the litigant seeking injunctive relief must demonstrate the likelihood of injury in the future. Lyons, 461 U.S. at 105-06. Doe did not seek injunctive relief in his petition for relief to this Court, thus he was not required to establish standing on these grounds. However, based on the statutory violation we found and the adverse effects caused to Doe, this Court sua sponte, ordered ICE to "reconsider and correct" the procedure by which non-criminal immigration information is entered into the NCIC database. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971) ("[T]he scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.").

This Court now finds that Doe does not satisfy the standing standard for injunctive relief because he is no longer at risk of adverse consequences that may flow from his misleading criminal record. This is true despite the fact that ICE has an officially endorsed policy of collecting non-criminal immigration information for eventual entry into the NCIC, a criminal database, and Doe was denied employment as a police officer based on a misleading immigration record entered into NCIC in 1975. Cf. Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 344-45 (2d Cir. 1998) (concluding that there was standing to seek injunctive relief in part because "the challenged interrogation methods in this case are officially endorsed policies."). However, there is no future risk of harm to Doe because this Court ordered the Government to expunge Doe's NCIC record, and the Government has complied with this portion of the Court's Order.

This Court emphasizes that legal aliens and naturalized citizens who have not had similar records expunged still face adverse consequences. They are put at high risk of being falsely accused as criminals. See HANNAH GLADSTEIN, ANNIE LAI, JENNIFER WAGNER, MICHAEL WISHNIE, BLURRING THE LINES: A PROFILE OF STATE AND LOCAL POLICE ENFORCEMENT OF IMMIGRATION LAW USING THE NATIONAL CRIME INFORMATION CENTER DATABASE, 2002-2004, at 27 (Dec. 2005) (reporting an above-average error rate of NCIC immigration records ranging as high as 98%). A criminal record, and the consequences that flow from such a record, is a distinct and independent harm. Further, effective law enforcement is compromised when the government encourages a policy that leads to the rampant misidentification of innocent people. The Government has an obligation to communicate and handle all information in its possession properly and responsibly.

However, since the petitioner did not request, on his behalf or on the behalf of similarly situated petitioners, that this Court review ICE's actions pursuant to the Administrative Procedure Act, this Court's remedy must end with the expungement of Doe's record. See 5 U.S.C. § 702; See also 5 U.S.C. § 706(2)(C) (providing that courts may "hold unlawful and set aside agency action, findings, and conclusions found to be . . . in excess of statutory jurisdiction, authority, or limitations.").

2. Mootness Argument

Additionally, the Government attempts the bootstrap argument that since they complied with a portion of this Court's order the case is now moot. A case is moot when "the parties lack a legally cognizable interest in the outcome." County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). A case may become moot after a court properly acquires jurisdiction if 1) there is no reasonable expectation that the violation will occur and 2) subsequent events have eliminated the effects of the past violation. Id. At this point in time, the case is moot as it relates to Doe.

Notwithstanding the result in this case, this Court views with a skeptical eye attempts to manipulate mootness doctrine after the fact by choosing to comply or not comply with a portion of a Court's order. Subscribing to this principle would arm defendants with the power to avoid judicial decrees that they disagree with.

IV. CONCLUSION

For the reasons stated above, the Government's motion for reconsideration is granted. This Court instructs the Government to expunge Doe's criminal record (which it has already done), but no longer mandates that ICE correct its procedure with regard to the entry of non-criminal information into the NCIC. This is not to suggest that the procedure is appropriate, only that I cannot order that the Government correct its procedure in this case. The Clerk of the Court is instructed to close this matter and remove it from my docket.

IT IS SO ORDERED.