F.L.B. v. Lynch

• Citation: 180 F.Supp.3d 811
• Decision Date: 15 April 2016
• Docket Number: C14-1026 TSZ
• Parties: F.L.B., et al., Plaintiffs, v. Loretta E. Lynch, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

180 F.Supp.3d 811

F.L.B., et al., Plaintiffs,

v.Loretta E. Lynch, et al., Defendants.

C14-1026 TSZ

United States District Court, W.D. Washington, at Seattle.

Signed April 15, 2016

Ahilan T. Arulanantham, Carmen G. Iguina, ACLU of Southern California, Kristen Jackson, Talia Inlender, Public Counsel, Los Angeles, CA, Beth Werlin, Kristin Macleod-Ball, Melissa Crow, Emily Creighton, American Immigration Council, Washington, DC, Cecillia Wang, Stephen B. Kang, ACLU Immigrants' Rights Project, San Francisco, CA, Glenda Melinda Aldana Madrid, Matt Adams, Northwest Immigrant Rights Project, Theodore J. Angelis, Todd L. Nunn, Heidi Craig Garcia, K & L Gates LLP, La Rond Baker, Margaret Chen, American Civil Liberties Union of WA, Seattle, WA, for Plaintiffs.

Christina B. Parascandola, Colin A. Kisor, Elianis N. Perez, Nicole N. Murley, Sarah S. Wilson, Vinita Andrapalliyal, William Charles Silvis, Yamileth G. Davila, Erez Reuveni, Leon Fresco, Joseph A. Darrow, Margaret Kuehne Taylor, US Department of Justice, Washington, DC, for Defendants.

ORDER

Thomas S. Zilly

, United States District Judge

THIS MATTER comes before the Court on a partial motion to dismiss, docket no. 229, pursuant to Federal Rules of Civil Procedure 12(b)(3) and 12(b)(6)

, brought by defendants Loretta E. Lynch, Attorney General of the United States; Juan P. Osuna, Director of the Executive Office for Immigration Review; Jeh C. Johnson, Secretary of Homeland Security; Sarah R. Saldaña, Director of U.S. Immigration and Customs Enforcement (“ICE”); León Rodríguez, Director of U.S. Citizenship and Immigration Services (“USCIS”); Lisa McDaniel, Field Office Director for ICE's Office of Enforcement and Removal Operations (“ERO”) in Seattle; Bryan Wilcox, Assistant Field Office Director for ICE's ERO in Seattle; Sylvia M. Burwell, Secretary of Health and Human Services; and Robert Carey, Director of the Office of Refugee Resettlement. Having reviewed all papers filed in support of, and in opposition to the motion, including the supplemental briefs filed at the Court's request, see Minute Order (docket no. 256), and having considered the oral arguments of counsel, the Court enters the following order.

Background

This action, seeking classwide declaratory and individual injunctive relief on the ground that juveniles in removal proceedings have a constitutional right to counsel at government expense, began with eight (8) named plaintiffs. See Compl. (docket no. 1); Am. Compl. (docket no. 73). Three (3) plaintiffs were added when the Second Amended Complaint, docket no. 95, was filed. In responding to these pleadings, the then-named defendants did not challenge venue. See Defs.' Mot. (docket no. 80); Defs.' Supp. Brief (docket no. 97); Defs.' Supp. Reply (docket no. 104). Of the eleven (11) plaintiffs identified in the Second Amended Complaint, two (2) were voluntarily dismissed, see Notice (docket no. 107), and the claims of another three (3) were dismissed without prejudice on defendants' motion, see Order at 7-8, 11 & 38 (docket no. 114). The claims of three (3) other plaintiffs, who had been granted asylum status, were later dismissed as moot. See Order at 7-8 (docket no. 174).

To the three (3) remaining plaintiffs, the Third Amended Complaint, docket no. 207, joined seven (7) more, one of whom (A.E.G.E.) had previously been dismissed without prejudice. See also Minute Order (docket no. 224) (dismissing certain claims that were improperly re-alleged in the Third Amended Complaint). The Third Amended Complaint also joined a new defendant—León Rodríguez, the Director of USCIS—who seeks to be dismissed because plaintiffs do not allege any actionable misconduct by USCIS. As to nine (9) of the ten (10) plaintiffs left in the action (i.e. , everyone other than F.L.B.), defendants collectively assert various grounds for dismissal, including mootness, improper venue, and lack of a cognizable claim to procedural due process and/or counsel at government expense. The Court agrees that Director Rodríguez is not an appropriate defendant, that the right-to-counsel claim of one plaintiff (J.E.V.G.) is moot, and that the right-to-counsel claim of another plaintiff (M.A.M.) might soon be moot. Defendants' motion is therefore GRANTED in part, with regard to Director Rodríguez and J.E.V.G., and DEFERRED in part as to M.A.M., but it is DENIED in all other respects for the reasons stated in this order.

Discussion

A. Claims Against León Rodríguez

Plaintiffs essentially concede that they have no cognizable claim against USCIS Director León Rodríguez. Plaintiffs indicate that their “primary interest in adding USCIS” was to obtain discovery from the agency. See Resp. at 24 (docket no. 239). They state that, if the Court makes clear USCIS must respond to discovery in this case, they “would not oppose” dismissing their claims against Director Rodríguez. Id. Joining a party to a lawsuit for the sole purpose of conducting discovery is improper. To the extent the other parties to this litigation have refused to produce materials from USCIS files, plaintiffs have remedies other than joining the USCIS Director as a defendant, for example, serving a subpoena under Rule 45, filing a motion to compel under Rule 37, or requesting documents under the Freedom of Information Act. Plaintiffs have made no allegations that USCIS plays a role in removal proceedings or has taken any action adverse to a named plaintiff. To the contrary, USCIS granted asylum status to former plaintiffs J.E.F.M., J.F.M., and D.G.F.M., see 3d Am. Compl. at ¶¶ 75, 77, & 79 (docket no. 207), and granted special immigrant juvenile status to plaintiff M.A.M., see id. at ¶ 90. Plaintiffs' claims against Director Rodríguez are DISMISSED.

B. Mootness

Defendants contend that J.E.V.G.'s and M.A.M.'s right-to-counsel claims are now moot and should be dismissed.¹ Both J.E.V.G. and M.A.M. have turned 18, and are no longer within the class of aliens plaintiffs seek to represent. J.E.V.G. has retained an attorney, and his attorney has successfully moved for the dismissal of his removal proceedings so that he may seek special immigrant juvenile (“SIJ”) status from USCIS. See Ex. B to Mot. (docket no. 229-2).² Because no removal proceedings are now pending against J.E.V.G., forming yet another basis for his exclusion from the class proposed by plaintiffs, and because J.E.V.G. cannot be said to have been prejudiced, while still a juvenile, by the lack of counsel at government expense, his right-to-counsel claim is DISMISSED as moot.

M.A.M. has already received SIJ status. According to defendants' counsel, M.A.M.'s removal proceedings have been continued to April 28, 2016, and he is awaiting approval of his adjustment to permanent resident status. See Tr. (Mar. 24, 2016) at 9:2, 14-18 (docket no. 261). Because M.A.M.'s removal proceedings remain pending, but are likely to be dismissed in the near future, defendants' motion to dismiss M.A.M.'s right-to-counsel claim is DEFERRED, and the parties are DIRECTED to file a Joint Status Report by May 6, 2016, concerning the status of M.A.M.'s removal proceedings.

C. Venue

If an officer or employee of the United States is a defendant in a civil case, venue is proper “in any judicial district in which ... the plaintiff resides if no real property is involved in the action.” 28 U.S.C. § 1391(e)(1)(C)

(emphasis added). In the context of actions involving multiple plaintiffs, the Third and Sixth Circuits have defined the phrase “the plaintiff” to mean “any plaintiff” rather than “all plaintiffs,” and thus, venue lies in a judicial district in which at least one plaintiff resides. Exxon Corp. v. Fed. Trade Comm'n , 588 F.2d 895 (3d Cir.1978), implicitly overruled on other grounds by Wilton v. Seven Falls Co., 515 U.S. 277, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995) ; see

Sidney Coal Co. v. Soc. Sec. Admin. , 427 F.3d 336 (6th Cir.2005).³

The Ninth Circuit has not fully analyzed this issue, but it has cited Exxon

with approval, summarizing Exxon as holding that, “in order to avoid a multiplicity of similar suits in different courts, venue need be proper for only one plaintiff under 28 U.S.C. § 1391(e).” Ry. Labor Execs.' Ass'n v. Interstate Commerce Comm'n , 958 F.2d 252, 256 (9th Cir.1991) ; see also

Matsuo v. United States , 416 F.Supp.2d 982, 997 (D.Haw.2006). Under the Third and Sixth Circuits' interpretation of § 1391(e)(1)(C), with which the Ninth Circuit does not appear to disagree, when plaintiffs initiated this action against then Attorney General Eric H. Holder, Secretaries Johnson and Burwell, Director Osuna, and the predecessors of Directors Saldaña, Carey, McDaniel, and Wilcox, all of whom were, at the time, officers or employees of the United States, the Western District of Washington was an appropriate venue because at least one of the original plaintiffs resided in the district.

Defendants' suggestion that the Court should depart from the Third and Sixth Circuits' guidance is unsupported by any authority. Moreover, defendants' current venue challenge is barred because it was waived when it was not raised in their previous motion to dismiss. See Fed. R. Civ. P. 12(g)(2) & 12(h)(1).⁴ The Second Amended Complaint, which was the operative pleading at the time defendants' earlier motion to dismiss was considered by the Court, identified plaintiffs who reside in California and Texas, as well as plaintiffs who live in Washington. The Third Amended Complaint's joinder⁵ of other plaintiffs who reside outside Washington does not, in any significant way, alter the scope of the case, and it does not resurrect defendants' ability to contest venue. See Johnson v. Bryson , 851 F.Supp.2d 688, 704–05 (S.D.N.Y.2012)

(ruling that “[t]he filing of an amended complaint will not revive the right to present by motion defenses that were available but were not asserted in timely fashion prior to the amendment of the pleading” and rejecting the defendant's improper venue defense because inter alia “all three of the New Plaint...