BAUTISTA-PEREZ v. Holder, C 07-4192 TEH.

Citation681 F. Supp.2d 1083
Decision Date01 May 2009
Docket NumberNo. C 07-4192 TEH.,C 07-4192 TEH.
PartiesJose BAUTISTA-PEREZ, et al., Plaintiffs, v. Eric H. HOLDER, Jr., Attorney General of the United States, and Janet Napolitano, Secretary of Homeland Security, Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California

Jonathan Myles Kaufman, The Law Offices of Jonathan M. Kaufman, San Francisco, CA, Linda Mary Dardarian, Heather Marie Mills, Rachel Elizabeth Brill, Goldstein, Demchak, Baller, Borgen Dard, Oakland, CA, for Plaintiffs.

Brian A. Mizoguchi, J. Max Weintraub, Jeanne E. Davidson, William J. Howard, U.S. Department of Justice, Washington, DC, Ila Casy Deiss, United States Attorney's Office, San Francisco, CA, for Defendants.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

THELTON E. HENDERSON, District Judge.

This matter came before the Court on April 6, 2009 on Defendants' Motion to Dismiss. Having carefully considered the parties' written and oral arguments, Defendants' Motion is DENIED for the reasons set forth below.

FACTUAL AND PROCEDURAL BACKGROUND

As this is the second motion to dismiss that this Court has considered, the following factual account is drawn from the Court's order of February 4, 2008, 2008 WL 314486.

The Immigration Act of 1990 established a procedure whereby the government could provide temporary protection to aliens in the U.S. who were forced to flee their homelands because of natural disaster, civil strife and armed conflict, or other extraordinary and temporary conditions. The Secretary of Homeland Security may grant "Temporary Protective Status" ("TPS") to nationals of certain countries temporarily designated under the statute, 8 U.S.C. § 1254a(a)(1), 6 U.S.C. § 557, which allows those nationals to stay in the United States and obtain work authorization for the period their home country is so designated. 8 U.S.C. § 1254a(a)(1)(B).

Once a country is designated for TPS, nationals of that country can register for benefits during a certain period of time. To establish eligibility for TPS, an applicant must establish, among other things, that he or she is a national of the country designated for TPS, has been continuously physically present and resided in the United States since the effective date of designation, and is otherwise admissible as an immigrant (although certain grounds of inadmissibility can be waived). 8 U.S.C. § 1254a(c)(2)(A); 8 C.F.R. §§ 244.2, 244.3(a), 1244.3(a). The government can deny an applicant TPS on the basis of the applicant's criminal history. 8 U.S.C. § 1254a(c)(2)(A); (c)(2)(B); 8 C.F.R. §§ 244.3(c), 244.4, 1244.3(c), 1244.4.

The statute at issue here limits the registration fee for TPS to $50.00. Title 8 U.S.C. § 1254a(c)(1)(B) provides:

Registration fee
The Attorney General may require payment of a reasonable fee as a condition of registering an alien under subparagraph (A)(iv) (including providing an alien with an "employment authorized" endorsement or other appropriate work permit under this section). The amount of any such fee shall not exceed $50. In the case of aliens registered pursuant to a designation under this section made after July 17, 1991, the Attorney General may impose a separate, additional fee for providing an alien with documentation of work authorization. Notwithstanding section 3302 of Title 31, all fees collected under this subparagraph shall be credited to the appropriation to be used in carrying out this section.

(emphasis added).1

However, regulations governing TPS require applicants to pay more than just a $50.00 registration fee and a work authorization fee. See 8 C.F.R. § 244.17. Homeland Security requires individuals who wish to obtain TPS to file, in addition to an application form, extensive supporting documentation, additional materials, and an $80.00 "biometrics services fee" for applicants over 14. 8 C.F.R. §§ 103.7(b)(1), 244.6; "Adjustment of the Immigration and Naturalization Benefit Application and Petition Fee Schedule," 72 Fed. Reg. 29851, 29873 (May 30, 2007).

Homeland Security charges the "biometrics services fee" for processing of fingerprints, photographs, and electronic signatures used for background and security checks and identity verification, and for storage and maintenance of the information so collected. Declaration of Barbara Velarde In Opposition to Plaintiff's Motion for Preliminary Injunction, filed September 25, 2007, ¶¶ 7, 18; see also 72 Fed. Reg. 29851, supra at 29857 (discussing uses of biometric fee).

Although aliens are required to re-register for TPS whenever a country is redesignated, Homeland Security collects the $50.00 TPS registration fee only once. 8 C.F.R. § 244.17(a); 72 Fed. Reg. 46649, 46650 (August 21, 2007) (explaining fee structure for El Salvador re-registration); Velarde Decl. ¶ 13. However, aliens are required to pay a new biometrics fee (and work authorization document fee) for each re-registration. 72 Fed. Reg. 46649, supra, at 46650; Velarde Decl. ¶ 13. Plaintiffs allege, and DHS admits, that it requires applicants to pay the biometrics fee even if Homeland Security does not need updated biometric information. Velarde Decl. ¶ 19.

Plaintiffs, foreign nationals from Honduras, El Salvador, and Nicaragua who currently have TPS status, claim that they have been required to remit fees totaling over $50.00 on multiple occasions as they re-register for TPS, even though their biometric data was being reused. First Amended Complaint, ¶ 12. They claim that because 8 U.S.C. § 1254a(c)(1)(B) provides that the fee charged by DHS "as a condition of registering" for TPS is "not to exceed" $50.00, the additional biometric services fee is unlawful. Their class action Complaint, brought on behalf of all nationals of El Salvador, Honduras, and Nicaragua who submitted applications to register for TPS and were required to pay fees of more than $50.00, id. ¶¶ 26-28, seeks an order

• declaring that additional fee for collecting biometric information or any combined fee over $50.00 is unlawful under 8 U.S.C. § 1254a(c)(1)(b);
• invalidating those parts of 8 C.F.R. § 244.6 that requires Plaintiffs and other class members to pay biometric service fees;
• enjoining DHS from imposing fees over $50.00;
• enjoining DHS from imposing a fee when collection of biometric information is unnecessary; and
• requiring the Defendants to refund all fees over $50.00 paid by class members.

Id. Prayer for relief ¶¶ 2-7.

The Court denied this previous motion to dismiss, finding jurisdiction and venue to be proper. The instant motion was filed while a motion for class certification was pending; the Court continued that motion until the resolution of this one.

LEGAL STANDARD

In deciding a motion to dismiss for lack of jurisdiction as a matter of law under Federal Rule of Civil Procedure 12(b)(1), a court must assume the facts alleged in the complaint to be true unless the allegations are controverted by exhibits attached to the complaint, matters subject to judicial notice, or documents necessarily relied on by the complaint and whose authenticity no party questions. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). Because Defendant does not seek to rely on any external facts, this is a facial rather than factual challenge to the court's jurisdiction. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.2004) (distinguishing between facial and factual jurisdictional attacks). Consequently, this Court applies a similar standard to Defendant's Rule 12(b)(1) motion as to a Rule 12(b)(6) motion: Dismissal is appropriate only if the complaint's allegations, which are assumed to be true, are insufficient to support a finding of jurisdiction. Id. When subject matter jurisdiction is challenged, Plaintiff "bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence." Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). On a motion to dismiss for lack of proper venue pursuant to Federal Rule of Civil Procedure 12(b)(3), pleadings need not be accepted as true, outside facts may be admitted, and the "court must draw all reasonable inferences and resolve all factual conflicts in favor of the non-moving party." Am. Home Assurance Co. v. TGL Container Lines, Ltd., 347 F.Supp.2d 749, 755 (N.D.Cal.2004).

ANALYSIS
I. Jurisdictional Challenge

Defendants' challenge to this Court's jurisdiction has three main prongs. First, they argue that the Court lacks jurisdiction because there has been no proper waiver of sovereign immunity, as the Plaintiffs have failed to plead the Little Tucker Act in their amended complaint. Second, they argue that without properly pleading the United States as defendant, there is no valid claim under the Little Tucker Act. Third, they argue that subsequent events have mooted Plaintiffs' claim for prospective injunctive relief. The Court will address each of these arguments in turn.

Defendants first claim that without a proper waiver of sovereign immunity, the United States is not subject to suit. Although the Little Tucker Act contains a waiver of sovereign immunity, as Plaintiffs only plead jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1361 (federal question and "action in the nature of mandamus to compel an officer of the United States to perform his duty"), Defendants argue that the complaint does not assert a claim under the Little Tucker Act. They assert that sovereign immunity waivers must be narrowly construed, and that since the Plaintiffs failed to assert a claim under a statute that waives sovereign immunity, there is no jurisdiction with this Court for suit against the government. In their reply, Defendants also argue that because Plaintiffs' opposition to the first motion to dismiss contained the assertion that they did not bring a claim under the Little Tucker Act, Defendants lack notice of the kind of claim that Plaintiffs now bring. Plaintiffs do not contend that they have pleaded the Little Tucker Act, but instead argue that under...

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