Lihong Xia v. Kerry

• Decision Date: 10 November 2014
• Docket Number: Civil No. 14–0057 RCL
• Citation: 73 F.Supp.3d 33
• Court: U.S. District Court — District of Columbia
• Parties: Lihong Xia, et al., Plaintiffs, v. John F. Kerry, U.S. Secretary of State, et al., Defendants.

73 F.Supp.3d 33

Lihong Xia, et al., Plaintiffs

v.John F. Kerry, U.S. Secretary of State, et al., Defendants.

Civil No. 14–0057 RCL

United States District Court, District of Columbia.

Signed November 10, 2014

Ning Ye, Law Office of Ning Ye, Flushing, NY, Xiaosheng Huang, Huang, Tang & Marvin, LLP, New York, NY, for Plaintiffs.

Elianis N. Perez, U.S. Department of Justice, Wynne Patrick Kelly, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

Royce C. Lamberth, United States District Judge

I. BACKGROUND

Plaintiffs Lihong Xia, Hoi Lun Li, We Liu, Jisong Chen, and Hua Chen claim to be naturalized citizens of the United States. Am. Compl. ¶¶ 2–3. They allege that the United States Citizenship and Immigration Services (“USCIS”) and Department of State (“DOS”) have violated their rights as citizens by unlawfully cancelling their naturalization certificates and revoking their United States passports. Id. at ¶¶ 36–37.

After the criminal investigation of Robert T. Schofield, USCIS determined that plaintiffs' naturalization certificates were obtained illegally and cancelled them pursuant to 8 U.S.C. § 1453. See Am. Compl. ¶¶ 24–25; Ex. 1, Donald Monica Decl., ¶¶ 7, 3–6. Plaintiffs were given 60 days to refute the decisions in a written statement or request a hearing; they were also notified of their right to be represented by an attorney. See, e.g., Am. Compl. Ex. 9A (Xia's Notice of Intent to Cancel Certificate of Naturalization); ECF. No. 5–1, at 79 (Liu's Notice of Intent to Cancel Certificate of Naturalization). Plaintiff Xia, through her lawyer, did dispute the cancellation and eventually persuaded the USCIS to reopen her case. Am. Compl. Ex. 7 (letter from Xia's attorney to USCIS); Ex. 11. However, her naturalization certificate was ultimately cancelled. Decl. Donald Monica ¶ 3. Plaintiff Liu also requested an interview: He responded to the allegations against him before USCIS officers in an examination where he was represented by counsel. ECF No. 5–1 (Notice of Decision and Order of Cancellation and Surrender). There is no evidence or allegation that any of the other plaintiffs responded to the allegations.

All plaintiffs also had the right to appeal the decisions to cancel their naturalization certificates to the Administrative Appeals Office. See Compl. at Ex. 9A; Mot. Dismiss, Ex. 1 (Decl. of Donald J. Monica); 8 C.F.R. § 342.8. Only Plaintiff Xia appealed her case, and her appeal was dismissed in June of 2014. Pl.'s Memorandum in Opp'n to Def.'s Mot. Dismiss, Ex. 1 (notice of cancellation of certificate). Plaintiff Xia was notified of her right to file a motion to reconsider or a motion to reopen if she believed the Administrative Appeals Office incorrectly applied law or policy or if she sought to present new facts for consideration. Id.

Additionally, DOS revoked the U.S. passports of plaintiffs Lihong Xia and Hoi Lun Li, pursuant to 22 C.F.R. § 51.62(b), on the grounds that their naturalization certificates were canceled.¹ See Mot. Dismiss Ex. 2, Declaration of Jonathan M. Rolbin, ¶¶ 3–4. Plaintiffs were not provided hearings, pursuant to 22 U.S.C. §§ 51.70–74. ECF No. 5–1, at 35. None of the plaintiffs have renewal passport applications pending with DOS. Decl. of Jonathan Rolbin, ¶ 8.

Plaintiffs bring suit alleging violations of the Due Process Clause of the Fifth Amendment; the Civil Rights Act, 42 U.S.C. §§ 1981, 1983 ; the Immigration and Nationality Act, 8 U.S.C. 1421, 1451(a) ; and the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Am. Compl. ¶¶ 62–71. Plaintiffs argue that their naturalization certificates were wrongfully cancelled without sufficient evidence against them. Am. Compl. ¶¶ 24–27. As a result of these actions, plaintiffs claim they remain in “a nebulous and stateless limbo”—lacking legal documentation but maintaining U.S. citizenship as a matter of law. Id. ¶¶ 19, 30. This “hobbled ‘U.S. citizenship’ ” does not afford them the benefits and privileges of citizenship. Id. ¶¶ 21, 31. They claim their rights were violated through “an opaque, unilateral administrative proceeding that afforded ... no meaningful opportunity to respond to the accusations” against them. Id. ¶¶ 21, 36–37. Plaintiffs also allege they were so treated because of their Chinese ethnicity and nationality. Id. ¶¶ 22–23, 37.

Plaintiffs prayer for relief is slightly unclear. They seek “a preliminary and permanent injunction ... compelling Defendants and their agents to make a determination ... of the US. Passport renewal applications of Plaintiffs and to notify Plaintiffs that their applications have been granted or denied and, if denied, of the procedures to be followed for the administrative or judicial appeal.” Am. Compl. ¶ 73. However, they also ask for a writ “compelling Defendants and their agents to reinstate Plaintiffs' Naturalization Certificates and to reverse Defendant DOS's revocation of their U.S. Passports.” Id.

Defendants filed the instant motion to dismiss, arguing that this Court lacks subject-matter jurisdiction over plaintiffs' claims.

II. SUBJECT–MATTER JURISDICTION

A. Legal Standard

Defendants move to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Federal courts are courts of limited jurisdiction. When a party files a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), “the plaintiff [ ] bear[s] the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction.” Carney Hosp. Transitional Care Unit v. Leavitt, 549 F.Supp.2d 93, 95 (D.D.C.2008) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) ) (other citation and internal quotation marks omitted) (alterations in original). A court considering a motion to dismiss for lack of jurisdiction must accept the factual allegations in the complaint as true. Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005). This “tenet” does not apply to legal conclusions couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). When assessing a motion to dismiss under Rule 12(b)(1), a court may consider any undisputed facts in the record, or “the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C.Cir.1992).

B. Analysis

Plaintiffs allege violations of both federal law (42 U.S.C. § 1983, the INA, and the APA) and the Fifth Amendment of the United States Constitution. Typically, this Court would have jurisdiction over such claims pursuant to 28 U.S.C. § 1331, which grants district courts “jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” However, because defendants here are federal agency officials, they have raised the defense of sovereign immunity. The general principle that the United States cannot be sued without the consent of Congress extends to federal agencies. FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994).

“[A] plaintiff must overcome the defense of sovereign immunity in order to establish the jurisdiction necessary to survive a Rule 12(b)(1) motion to dismiss.” Jackson v. Bush, 448 F.Supp.2d 198, 200 (D.D.C.2006) (citing Tri–State Hosp. Supply Corp. v. United States, 341 F.3d 571, 575 (D.C.Cir.2003) ). “A waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text, and will not be implied.” Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996).

In their reply brief, plaintiffs argue that “[d]efendants have no sovereign immunity,” PL's Reply 5, but their explanation is less than clear.² Regardless, plaintiffs do assert the Administrative Procedure Act as one basis for this Court's jurisdiction over their claims. Section 702 of the APA waives the federal government's immunity in suits seeking relief other than money damages. It states, in part:

An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States ...

5 U.S.C. § 702. “Issues of sovereign immunity in the context of injunctive relief against federal officers of the United States must be resolved with reference to § 702.” Cobell v. Babbitt, 30 F.Supp.2d 24, 31 (D.D.C.1998). “The APA's waiver of sovereign immunity applies to any suit whether under the APA or not.” Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322, 1328 (D.C.Cir.1996) (citing cases).

Defendants argue that the APA cannot provide the necessary waiver because the APA permits judicial review only where the plaintiff has “no other adequate remedy in a court.” Mot. Dismiss at 13 (citing 5 U.S.C. § 702 ). According to defendants, plaintiffs have another judicial remedy: 8 U.S.C. § 1503. Id. Although this—if true—bears on the Court's power to hear a suit brought under the APA, it “does not affect the Court's sovereign immunity analysis per se. ” Cobell, 30 F.Supp.2d at 31, n. 9. And even without the application of the APA, “[i]t is well-established that sovereign immunity does not bar suits for specific relief against government officials where the challenged actions of the officials are alleged to be unconstitutional.” Clark v. Library of Cong., 750 F.2d 89, 102 (D.C.Cir.1984). Defendants are not entitled to sovereign immunity to the extent that plaintiffs seek only injunctive and declaratory relief.

III. FAILURE TO STATE A CLAIM

Defendants' Motion to Dismiss is based on Rule 12(b)(1) ; however, they often couched their subject-matter jurisdiction arguments in terms of the merits. For example, they argued that this Court lacks subject-matter jurisdiction in part because plainti...