Freedom Watch, Inc. v. McAleenan

• Citation: 442 F.Supp.3d 180
• Decision Date: 26 February 2020
• Docket Number: Civil Action No. 19-cv-1374 (RC)
• Parties: FREEDOM WATCH, INC., Plaintiff, v. Kevin K. MCALEENAN, Defendant.
• Court: U.S. District Court — District of Columbia

442 F.Supp.3d 180

FREEDOM WATCH, INC., Plaintiff,

v.Kevin K. MCALEENAN, Defendant.

Civil Action No. 19-cv-1374 (RC)

United States District Court, District of Columbia.

Signed February 26, 2020

Larry E. Klayman, Klayman Law Group, P.A., Washington, DC, for Plaintiff.

Colin Abbott Kisor, Christina Parascandola, United States Department of Justice, Washington, DC, for Defendants.

Re Document No.: 5

MEMORANDUM OPINION

GRANTING DEFENDANT'S MOTION TO DISMISS

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

In February 2019, non-profit organization Freedom Watch, Inc. ("Freedom Watch") petitioned the U.S. Department of Homeland Security ("DHS"), to investigate U.S. Representative Ilhan Omar for alleged immigration fraud.¹ After DHS did not respond to this petition, Freedom Watch filed suit on May 13, 2019, moving this Court to issue a writ of mandamus compelling two DHS components, U.S. Immigration and Customs Enforcement ("ICE") and U.S. Citizen and Immigration Services ("USCIS") "to enforce governing immigration law," Compl. 1, by investigating Plaintiff's allegations against Representative Omar, see id. at 26–28.² Defendant moved to dismiss the suit both for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Procedure 12(b)(6). For the forthcoming reasons, the Court grants Defendant's motion to dismiss for lack of standing; in addition, the Court concludes that, even if Plaintiff had standing, Freedom Watch's complaint does not state a claim sufficient to survive Defendant's 12(b)(6) motion to dismiss.

II. BACKGROUND

A. Factual and Procedural History

Plaintiff Freedom Watch describes itself as a "public interest group that investigates and prosecutes government corruption." Compl. ¶ 1. The instant suit arises from allegations concerning Representative Omar that Freedom Watch submitted to DHS. Specifically, Freedom Watch filed a petition urging DHS to initiate removal proceedings against Representative Omar, id. ¶ 12, based on several overlapping accusations and related factual allegations. First, Freedom Watch alleged in its petition that Representative Omar was not eligible for refugee status and made false statements in seeking admission to the United States. Petition 2–3; see also Compl. ¶¶ 17–25. Second, Freedom Watch alleged that Representative Omar committed marriage fraud to assist another individual, asserted to be her brother, in gaining entry to the United States. Petition 5–7; see also Compl. ¶¶ 57–95. Finally, Freedom Watch alleged that Representative Omar has engaged in anti-Semitic and terrorist activities, Petition 3–4; see also Compl. ¶¶ 27–47, within five years of her naturalization, rendering her subject to deportation, Petition 14; see also Compl. 26–28.

After Freedom Watch received no response from DHS, the organization filed suit in this Court. Freedom Watch contends that the agency's inaction not only violates governing immigration laws and regulations that compel agency action, Compl. ¶¶ 96–114 (referencing 8 C.F.R. § 270.2 and several provisions of Immigration and Naturalization Act ("INA")); but also contravenes the Administrative Procedure Act ("APA"), id. at 1 (citing 5 U.S.C. §§ 551 – 59 ). Freedom Watch's complaint includes five "legal grounds requiring investigation and denaturalization and deportation:" (1) fraud or willful misrepresentation of refugee status, id. ¶¶ 115–18 (citing 8 U.S.C. § 212(a)(6)(C)(i)); (2) immigration marriage fraud, id. ¶¶ 119–21 (citing 8 U.S.C. § 1325(C), 18 U.S.C. § 1546 ); (3) membership or support for an organization that provides material support to terrorism, id. ¶¶ 122–27, making Representative Omar eligible for revocation of her citizenship, id. ¶¶ 123–24 (citing 8 U.S.C. § 1451 ); (4) denaturalization for immigration fraud based upon her alleged misrepresentations, id. ¶¶ 128–131 (citing 8 U.S.C. § 1451 ); and (5) document fraud in association with Representative Omar's marriage, id. ¶¶ 132–34 (citing 8 U.S.C. §§ 1227(a)(3)(C), 8 U.S.C. § 1324(C) ). Because Plaintiff argues that these alleged violations required DHS to take action and, at a minimum, investigate them, see Pl.'s Opp'n to Def.'s Mot. to Dismiss ("Pl.'s Opp'n") 8, ECF No. 8, and because DHS has not responded to Freedom Watch's petition, Plaintiff contends that the Court should issue a writ of mandamus compelling agency action, Compl. 26 ("[T]he evidence warrants investigation, hearing, and if necessary deportation and a criminal referral to DOJ concerning Ilhan Omar.").

DHS has moved to dismiss Plaintiff's suit for lack of subject matter jurisdiction and for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), respectively. The motion is fully briefed and ripe for the Court's disposition.

B. Legal Standard

1. Federal Rule of Civil Procedure 12(b)(6)

The Federal Rules of Civil Procedure require that a complaint contain "a short and plain statement of the claim" in order to give the defendant fair notice of the claim and the grounds upon which it rests. Fed. R. Civ. P. 8(a)(2) ; accord Erickson v. Pardus , 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). A motion to dismiss under Rule 12(b)(6) "tests the legal sufficiency of a complaint" under that standard and asks whether the plaintiff has properly stated a claim. Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002). A court considering such a motion takes the complaint's factual allegations to be true and construes them liberally in the plaintiff's favor. See, e.g. , United States v. Philip Morris, Inc. , 116 F. Supp. 2d 131, 135 (D.D.C. 2000).

Nevertheless, "[t]o 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.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). This means that a plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly , 550 U.S. at 555–56, 127 S.Ct. 1955 (citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are thus insufficient to withstand a motion to dismiss. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. A court need not accept a plaintiff's legal conclusions as true, see id. , nor must a court presume the veracity of legal conclusions that are couched as factual allegations. See Twombly , 550 U.S. at 555, 127 S.Ct. 1955.

2. Federal Rule of Civil Procedure 12(b)(1)

Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ; see also Gen. Motors Corp. v. EPA , 363 F.3d 442, 448 (D.C. Cir. 2004). On a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; see also Didban v. Pompeo , No. 19-CV-881 (CRC), 435 F.Supp.3d 168, 172–73 (D.D.C. Jan. 15, 2020) (citing Lujan , 504 U.S. at 561, 112 S.Ct. 2130 ). A court resolving a Rule 12(b)(1) motion must "accept[ ] the factual allegations in the complaint as true," Jerome Stevens Pharm., Inc. v. FDA , 402 F.3d 1249, 1253–54 (D.C. Cir. 2005), and "must construe the complaint in favor of the complaining party," Warth v. Seldin , 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

That said, because subject matter jurisdiction focuses on the court's power to hear the claim, the court must apply the appropriate amount of scrutiny to the plaintiff's factual allegations. As compared to a Rule 12(b)(6) motion for failure to state a claim, a court is to apply closer scrutiny when resolving a Rule 12(b)(1) motion. See Food & Water Watch, Inc. v. Vilsack , 808 F.3d 905, 913 (D.C. Cir. 2015) (stating, in context of standing analysis under Rule 12(b)(1) legal standard, that "we do not assume the truth of legal conclusions, nor do we accept inferences that are unsupported by the facts set out in the complaint") (quoting Arpaio v. Obama , 797 F.3d 11, 19 (D.C. Cir. 2015) ); see also Macharia v. United States , 334 F.3d 61, 64, 69 (D.C. Cir. 2003) ; Jathoul v. Clinton , 880 F. Supp. 2d 168, 170 (D.D.C. 2012) ("A court has an ‘affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.’ For this reason, ‘the [p]laintiff's factual allegations in the complaint ... will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim.' ") (quoting Grand Lodge of Fraternal Order of Police v. Ashcroft , 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001) ); 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987). "Where necessary to resolve a jurisdictional challenge under Rule 12(b)(1), ‘the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.’ " Banneker Ventures, LLC v. Graham , 798 F.3d 1119, 1129 (D.C. Cir. 2015) (quoting Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992) ).

III. ANALYSIS

Defendants move to dismiss on two grounds: lack of subject matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), and failure to state a claim, see Fed. R. Civ. P. 12(b)(6). The Court first addresses the jurisdictional question and then considers whether Plaintiff has set forth...