Texas Border Coalition v. Napolitano, Civil Action No. 08-0848 (RBW).

• Decision Date: 15 May 2009
• Docket Number: Civil Action No. 08-0848 (RBW).
• Citation: 614 F.Supp.2d 54
• Parties: TEXAS BORDER COALITION, Plaintiff, v. Janet NAPOLITANO, Secretary, United States Department of Homeland Security; Robert F. Janson, Acting Executive Director, Asset Management of U.S. Customs and Border Protection, Defendants.
• Court: U.S. District Court — District of Columbia

614 F.Supp.2d 54

TEXAS BORDER COALITION, Plaintiff, v. Janet NAPOLITANO, Secretary, United States Department of Homeland Security; Robert F. Janson, Acting Executive Director, Asset Management of U.S. Customs and Border Protection, Defendants.

Civil Action No. 08-0848 (RBW).

United States District Court, District of Columbia.

May 15, 2009.

COPYRIGHT MATERIAL OMITTED

Jim Tom Haynes, Washington, DC, for Plaintiff.

Donna S. Fitzgerald, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

The plaintiff, the Texas Border Coalition, comprised of "a group of cities, counties, Chambers of Commerce, and Economic Development Commissions located proximate to the border between the United States and Mexico in the State of Texas," challenges, pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (the "IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 (1996) (codified in part at 40 U.S.C. §§ 3113-14 (2006)), section 564 of the Consolidated Appropriations Act for Fiscal Year 2008 ("2008 Appropriations Act"), Pub. L. No 110-161, 121 Stat. 1844 (2007), the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-04 (2006), and the Due Process Clause, including its equal protection component, of the Fifth Amendment to the United States Constitution, the condemnation of land to construct a fence along part of the United States border with Mexico by the United States Department of Homeland Security (the "Department"), Complaint ("Compl.") ¶¶ 1, 37-50. Currently before the Court is the defendants' motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds that the Court lacks subject matter jurisdiction to hear the plaintiff's complaint, the plaintiff lacks standing to pursue this action, and the plaintiff has failed to state a claim upon which relief may be granted. Defendants' Motion to Dismiss ("Defs.' Mot.") at 1. The plaintiff opposes the motion.¹ For the foregoing reasons, the Court must dismiss the complaint.

Contrary to the defendants' urging, the plaintiff's complaint is not doomed due to the Court's lack of subject matter jurisdiction. The plaintiff has alleged both violations of federal law, including constitutional violations, Compl. ¶¶ 37-50, and is seeking mandamus relief against Department officials to the extent that other legal remedies are unavailable,² id. ¶ 9; Pl.'s Opp'n at 11-13. Therefore, the Court's authority to entertain the plaintiff's claims is derived from its federal question jurisdiction to address "all civil actions arising under the Constitution, laws, or treaties of the United States," 28 U.S.C. § 1331 (2006), and its jurisdiction to hear "any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff,"³ 28 U.S.C. § 1361 (2006).

Nor is sovereign immunity a bar to this action. While

[n]either the general federal question statute nor the mandamus statute by itself waives sovereign immunity[,] ... sovereign immunity does not apply as a bar to suits alleging that [a government] officer's actions were unconstitutional or beyond statutory authority, on the grounds that "where the officer's powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions."

Swan v. Clinton, 100 F.3d 973, 981 (D.C.Cir.1996) (citations omitted).

However, while the Court cannot find fault with the plaintiff's invocation of the Court's jurisdiction, it nonetheless cannot reject the defendants' other challenges to the complaint because the plaintiff either lacks standing to pursue this action or has failed to plead any legally sustainable claims. The primary barrier to the plaintiff maintaining this action is its lack of standing to pursue the relief sought, one of the tenets of establishing a justiciable case or controversy under Article III of the Constitution. Lance v. Coffman, 549 U.S. 437, 439, 127 S.Ct. 1194, 167 L.Ed.2d 29 (2007); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ("[A] plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy."). An organization like the plaintiff has standing only if "its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit."⁴ Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citation omitted). "[T]he question whether the litigant is a `proper party to request an adjudication of a particular issue,' is one within the power of Congress to determine." Sierra Club v. Morton, 405 U.S. 727, 732 n. 3, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (internal citation omitted) (stating that Article III forbids federal district courts from "render[ing] advisory opinions," "entertain[ing] `friendly' suits," or "resolv[ing] `political questions'" (internal citations omitted)). "[S]tanding ... requires a plaintiff to demonstrate the now-familiar elements of injury in fact, causation, and redressability." Lance, 549 U.S. at 439. The injury alleged must be "concrete and particularized," and not merely that "the law ... has not been followed." Id. at 439, 442, 127 S.Ct. 1194.

With regard to the allegations asserted in all of the counts of the complaint, the IIRIRA authorizes the federal government to acquire an interest in privately-held, border-adjacent property for the purpose of constructing the congressionally mandated fence by either "contract[ing] for [it,] or buy[ing][it,]" or "commenc[ing] condemnation proceedings."⁵ IIRIRA § 102(d)(1)(b)(2), (3);⁶ see also 40 U.S.C. §§ 3113-14 (providing that the federal government may acquire real estate "by condemnation, under judicial process, when the officer believes that it is necessary or advantageous to the Government to do so"). Through these statutory provisions, Congress prescribed the manner in which the Department could acquire the property, and implicitly granted the Department discretion to determine whether condemnation proceedings should be initiated to acquire the property needed to construct the fence. See 40 U.S.C. §§ 3113-14. Only upon the Department's determination will "judicial" condemnation proceedings commence,⁷ id., and nothing in the statute permits a property owner to prevent the initiation of such proceedings through injunctive relief or otherwise. Moreover, the statutory framework of the IIRIRA provides for no other means of acquiring the property of an unwilling owner other than through the condemnation process. It would make little procedural sense, and, indeed, thwart congressional will, to allow the plaintiff's members to preemptively challenge an anticipated condemnation when the Department's decision to pursue this course has not yet been rendered.⁸

Albeit addressed in a different context, the Supreme Court in Aircraft & Diesel Equip. Corp. v. Hirsch, 331 U.S. 752, 67 S.Ct. 1493, 91 L.Ed. 1796 (1947), explained why precipitous judicial intervention is prohibited when Congress has designed an administrative process for addressing a matter in the first instance:

The very purpose of providing either an exclusive or an initial and preliminary administrative determination is to secure the administrative judgment either, in the one case, in substitution for judicial decision or, in the other, as foundation for or perchance to make unnecessary later judicial proceedings. Where Congress has clearly commanded that administrative judgment be taken initially or exclusively, the courts have no lawful function to anticipate the administrative decision with their own, whether or not when it has been rendered they may intervene either in presumed accordance with Congress' will or because, for constitutional reasons, its will to exclude them has been exerted in an invalid manner. To do this not only would contravene the will of Congress as a matter of restricting or deferring judicial action. It would nullify the congressional objects in providing the administrative determination. In this case these include securing uniformity of administrative policy and disposition, expertness of judgment, and finality in determination, at least of those things which Congress intended to and could commit to such agencies for final decision.

Id. at 767-68, 67 S.Ct. 1493 (emphasis added and footnote omitted);⁹ cf. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 & n. 9, 58 S.Ct. 459, 82 L.Ed. 638 (1938) ("[N]o one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted;" and "the rule is one of judicial administration—not merely a rule governing the exercise of discretion—[and] it is applicable to proceedings at law as well as suits in equity."); First Nat'l Bank of Greeley v. Bd. of Comm'rs of Weld County, Colo., 264 U.S. 450, 453, 44 S.Ct. 385, 68 L.Ed. 784 (1924) (holding that "the plaintiff did not exhaust its remedies before the [state] administrative boards, and consequently cannot be heard by a judicial tribunal to assert the [constitutional] invalidity of the tax") cited in Fair Assessment in Real Estate Ass'n, Inc. v. McNary, 454 U.S. 100, 108 n. 5, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981). What the Supreme Court proscribed in Hirsch is exactly what the plaintiff would have this Court do here. The Court must therefore conclude that counts one through three of the complaint have been filed prematurely...