Cnty. of San Diego v. Nielsen, Case No.: 3:19cv0631-L-AHG

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Citation465 F.Supp.3d 1073
Docket NumberCase No.: 3:19cv0631-L-AHG
Parties COUNTY OF SAN DIEGO, Plaintiffs, v. Kirstjen NIELSEN, et al., Defendant.
Decision Date05 June 2020

465 F.Supp.3d 1073

Kirstjen NIELSEN, et al., Defendant.

Case No.: 3:19cv0631-L-AHG

United States District Court, S.D. California.

Signed June 5, 2020

465 F.Supp.3d 1078

Timothy M. White, Office of County Counsel, San Diego, CA, for Plaintiffs.

U.S. Attorney CV, Kyle Hoffman, U.S. Attorneys Office, San Diego, CA, for Defendant.


M. James Lorenz, United States District Judge

Pending before the Court is Defendants’ motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [ECF NO. 8.] Plaintiff filed an opposition and Defendant replied. The matter is submitted on the briefs without oral argument. See Civ. L. R. 7.1(d)(1). For the reasons stated below, Defendant's motion is GRANTED .


Plaintiff County of San Diego ("County" or "Plaintiff") filed this action against Kirstjen M. Nielsen, Secretary of the Department of Homeland Security; Ronald D. Vitiello, Deputy Director and Senior Official Performing Duties as Immigration and Customs Enforcement Director; Matthew T. Albence, United States Immigration and Customs Enforcement Executive Associate Director; Kevin McAleenan, Commissioner of Customs and Border Protection; and Carla L. Provost, Chief of Border Patrol, all in their official capacities (collectively "Defendants"). Plaintiff asserts that Defendants violated the Administrative Procedures Act ("APA") and Fifth Amendment of the United States Constitution when they discontinued the "Safe Release" program under which Defendants provided asylum seekers with assistance in reaching their final destinations within the United States pending adjudication of their asylum claims. (See Compl. [Doc. 1] ¶¶ 18-19.) The Safe Release program entails helping asylum seekers locate contact information for relatives residing in the United States and outside the County of San Diego, facilitating phone calls between asylum seekers and those relatives, and transporting the asylum seekers and accompanying family members to departure points for bus stations, train stations, and airports. (Id. at ¶¶ 18-22.) Asylum seekers and their families would receive a minimal amount of food for their journeys. (Id. ) Plaintiff claims that the Defendants operated the Safe Release program from 2009 until its sudden termination in October 2018.

In October 2018, multiple news outlets reported the end of the Safe Release program, with ICE commenting that the termination of the policy was due to limited resources to support the program. (Id. at ¶ 28). Within 24 hours of the announced end of the Safe Release program, Defendants

465 F.Supp.3d 1079

dropped off 40 asylum seekers and accompanying family members at a San Diego bus station with no assistance for traveling to their final destinations. Plaintiff states that social service agencies Jewish Family Services ("JFS") and San Diego Rapid Response network ("SDRRN"), reported that an average of 20 to 30 family units, or 60 to 80 individuals including young children, have been released into San Diego County each day since October 2018. (Id. at ¶ 29). Many of the asylum seekers arrive in poor health suffering from the flu, upper respiratory infections, injuries, scabies, and/or lice, in addition to emotional or psychiatric issues due to their circumstances. (Id. at ¶¶ 30-31).

As a result of the discontinuation of the Safe Release program, Plaintiff claims it has suffered and will continue to suffer immediate and apparent harms in combating the humanitarian and public health issues created by the end of the Safe Release program, including providing more personnel to shelter and care for the asylum seekers and their families. Costs for the services now being provided by the County exceeded $1.1 million as of March 22, 2019 and have continued to increase. (Id. at ¶¶ 33-37.)

Plaintiff alleges that by suddenly ending the Safe Release program without an opportunity to comment, Defendants have violated the APA's notice and comment requirement, under 5 U.S.C. §§ 553, 706(2)(D), and committed an agency action that is arbitrary and capricious in violation of the APA, under 5 U.S.C. § 706(2)(A). (Compl. ¶¶ 51-52). Plaintiff further alleges that Defendants have violated the procedural due process rights of the County under the Fifth Amendment of the United States Constitution. (Id. at ¶¶ 62-63). Plaintiff seeks preliminary and permanent injunctive relief and a declaration by the Court that the Defendants actions are void and without legal force and effect.

Defendant filed motions to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction, and pursuant to Rule 12(b)(6) for failure to state a claim.


Rule 12(b)(1) provides for dismissal if subject matter jurisdiction is lacking. Unlike State courts,

Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.

Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted).

Federal courts must satisfy themselves of jurisdiction over the subject matter before proceeding to the merits of the case. Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). Subject matter jurisdiction cannot be waived, and the court must dismiss an action whenever it determines subject matter jurisdiction is lacking. Fed. R. Civ. P. 12(h)(3) ; see also Hansen v. Dep't of Treasury , 528 F.3d 597, 600 (9th Cir. 2007).

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. See N. Star Int'l v. Ariz. Corp. Comm'n. , 720 F.2d 578, 581 (9th Cir. 1983). The Court may dismiss a complaint as a matter of law either for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). The Court must assume the truth of all factual allegations in the complaint and "construe them in the

465 F.Supp.3d 1080

light most favorable to [the nonmoving party]." Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations and quotation marks omitted). Instead, the allegations "must be enough to raise a right to relief above the speculative level." Id.

"Unlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency, and in so doing rely on affidavits or any other evidence properly before the court." St. Clair v. City of Chico , 880 F.2d 199, 201 (9th Cir. 1989). Plaintiffs Article III and prudential standing claims are analyzed under 12(b)(1). The remaining issue are analyzed under the 12(b)(6) standard.

A. Article III Standing

To meet Article III's standing requirements, a plaintiff must show (1) it has suffered an "injury in fact"—an invasion of a legally protected interest that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, not merely speculative, that the injury will be redressed by a favorable decision. Maya v. Centex , 658 F.3d 1060 (9th Cir. 2011) (citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). The party asserting jurisdiction has the burden of establishing these elements which must be supported with evidence as required at each successive stage of litigation. Lujan , 504 U.S. at 561, 112 S.Ct. 2130. "Though lack of statutory standing requires dismissal for failure to state a claim, lack of Article III standing requires dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)." Maya , 658 F.3d at 1067.

In Claim One, Plaintiff asserts a procedural claim arguing it was denied the ability to speak out against the proposed policy changes due to Defendants failure to follow the APA's notice and comment requirements before terminating the Safe Release program. (Opposition at 11.) In Claim Two, Plaintiff argues that the termination of the Safe Release policy was arbitrary and capricious, an abuse of discretion, and not in accordance with law under the APA because the termination deviated from federal regulations, Defendants failed to consider the relevant factors, and failed to articulate a reasonable explanation for their actions. (Compl. at ¶ 57). As a result of these violations, Plaintiff claims it suffered a concrete injury because it has spent over $1.1 million by devoting...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT