RUDOLPH CONTRERAS, United States District Judge.
In February 2019, non-profit organization Freedom Watch, Inc. ("Freedom Watch") petitioned the U.S. Department of Homeland Security ("DHS"), to investigate U.S. Representative Ilhan Omar for alleged immigration fraud.
Plaintiff Freedom Watch describes itself as a "public interest group that investigates and prosecutes government corruption." Compl. ¶ 1. The instant suit arises from allegations concerning Representative Omar that Freedom Watch submitted to DHS. Specifically, Freedom Watch filed a petition urging DHS to initiate removal proceedings against Representative Omar, id. ¶ 12, based on several overlapping accusations and related factual allegations. First, Freedom Watch alleged in its petition that Representative Omar was not eligible for refugee status and made false statements in seeking admission to the United States. Petition 2-3; see also Compl. ¶¶ 17-25. Second, Freedom Watch
After Freedom Watch received no response from DHS, the organization filed suit in this Court. Freedom Watch contends that the agency's inaction not only violates governing immigration laws and regulations that compel agency action, Compl. ¶¶ 96-114 (referencing 8 C.F.R. § 270.2 and several provisions of Immigration and Naturalization Act ("INA")); but also contravenes the Administrative Procedure Act ("APA"), id. at 1 (citing 5 U.S.C. §§ 551-59). Freedom Watch's complaint includes five "legal grounds requiring investigation and denaturalization and deportation:" (1) fraud or willful misrepresentation of refugee status, id. ¶¶ 115-18 (citing 8 U.S.C. § 212(a)(6)(C)(i)); (2) immigration marriage fraud, id. ¶¶ 119-21 (citing 8 U.S.C. § 1325(C), 18 U.S.C. § 1546); (3) membership or support for an organization that provides material support to terrorism, id. ¶¶ 122-27, making Representative Omar eligible for revocation of her citizenship, id. ¶¶ 123-24 (citing 8 U.S.C. § 1451); (4) denaturalization for immigration fraud based upon her alleged misrepresentations, id. ¶¶ 128-131 (citing 8 U.S.C. § 1451); and (5) document fraud in association with Representative Omar's marriage, id. ¶¶ 132-34 (citing 8 U.S.C. §§ 1227(a)(3)(C), 8 U.S.C. § 1324(C)). Because Plaintiff argues that these alleged violations required DHS to take action and, at a minimum, investigate them, see Pl.'s Opp'n to Def.'s Mot. to Dismiss ("Pl.'s Opp'n") 8, ECF No. 8, and because DHS has not responded to Freedom Watch's petition, Plaintiff contends that the Court should issue a writ of mandamus compelling agency action, Compl. 26 ("[T]he evidence warrants investigation, hearing, and if necessary deportation and a criminal referral to DOJ concerning Ilhan Omar.").
DHS has moved to dismiss Plaintiff's suit for lack of subject matter jurisdiction and for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), respectively. The motion is fully briefed and ripe for the Court's disposition.
The Federal Rules of Civil Procedure require that a complaint contain "a short and plain statement of the claim" in order to give the defendant fair notice of the claim and the grounds upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). A motion to dismiss under Rule 12(b)(6) "tests the legal sufficiency of a complaint" under that standard and asks whether the plaintiff has properly stated a claim. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A court considering such a motion takes the complaint's factual allegations to be true and construes them liberally in the plaintiff's favor. See, e.g., United States v. Philip Morris, Inc., 116 F.Supp.2d 131, 135 (D.D.C. 2000).
Nevertheless, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004). On a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); see also Didban v. Pompeo, No. 19-CV-881 (CRC), 435 F.Supp.3d 168, 172-73 (D.D.C. Jan. 15, 2020) (citing Lujan, 504 U.S. at 561, 112 S.Ct. 2130). A court resolving a Rule 12(b)(1) motion must "accept[] the factual allegations in the complaint as true," Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005), and "must construe the complaint in favor of the complaining party," Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).
That said, because subject matter jurisdiction focuses on the court's power to hear the claim, the court must apply the appropriate amount of scrutiny to the plaintiff's factual allegations. As compared to a Rule 12(b)(6) motion for failure to state a claim, a court is to apply closer scrutiny when resolving a Rule 12(b)(1) motion. See Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015) (stating, in context of standing analysis under Rule 12(b)(1) legal standard, that "we do not assume the truth of legal conclusions, nor do we accept inferences that are unsupported by the facts set out in the complaint") (quoting Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015)); see also Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003); Jathoul v. Clinton, 880 F.Supp.2d 168, 170 (D.D.C. 2012) ("A court has an `affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.' For this reason, `the [p]laintiff's factual allegations in the complaint ... will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim.'") (quoting Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13-14 (D.D.C. 2001)); 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987). "Where necessary to resolve a jurisdictional challenge under Rule 12(b)(1), `the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.'" Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015) (quoting Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992)).
Defendants move to dismiss on two grounds: lack of subject matter jurisdiction,
The Court begins with the jurisdictional question: whether Freedom Watch has standing to pursue its claim. Freedom Watch asserts that it has standing both on the organization's own behalf (organizational standing), Pl.'s Opp'n 6-7, and as a representative of its members (associational standing), Pl.'s Opp'n 4-5.
To establish subject matter jurisdiction, "[t]he plaintiff `must clearly ... allege facts demonstrating each element'" of standing. Spokeo, Inc. v. Robins, ___ U.S. ___, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (quoting Warth, 422 U.S. at 518, 95 S.Ct. 2197); see also Arpaio, 797 F.3d at 19 ("The plaintiff bears the burden of invoking the court's subject matter jurisdiction, including establishing the elements of standing." (citing Lujan, 504 U.S. at 561, 112 S.Ct. 2130)). "To establish standing, a plaintiff must show (1) it has suffered a `concrete and particularized' injury (2) that is `fairly traceable to the challenged action of the defendant' and (3) that is `likely' to be `redressed by a favorable decision,' i.e., a decision granting the plaintiff the relief it seeks." Elec. Privacy Info. Ctr. (EPIC) v. Presidential Advisory Comm'n on Election Integrity, 878 F.3d 371, 376-77 (D.C. Cir. 2017) (quoting West v. Lynch, 845 F.3d 1228, 1230 (D.C. Cir. 2017)); see also Spokeo, 136 S. Ct. at 1547; Friends of the Earth, Inc. v. Laidlaw Environmental Servs., Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). What a plaintiff must assert to satisfy this burden varies depending on the stage of litigation. See Abigail All. for Better Access to Developmental Drugs v. Eschenbach (Abigail All.), 469 F.3d 129, 132 (D.C. Cir. 2006) (stating that a plaintiff "must establish the predicates for standing `with the manner and degree of evidence required at' that stage of trial." (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130)); see also ASPCA v. Feld Entm't, Inc. (Feld), 659 F.3d 13, 19 (D.C. Cir. 2011) (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130). What is required to carry a plaintiff's burden "grows heavier at each stage of the litigation," and at the motion to dismiss stage, "general factual allegations of injury resulting from the defendant's conduct may suffice." Osborn v. Visa Inc., 797 F.3d 1057, 1064 (D.C. Cir. 2015); see also Abigail All., 469 F.3d at 132 (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130).
Additionally, to satisfy Article III's requirements to establish standing, the alleged "injury in fact" must be "(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Friends of the Earth, Inc., 528 U.S. at 180, 120 S.Ct. 693. The asserted injury
Freedom Watch's organizational standing argument turns on a link between DHS's failure to enforce the law and asserted consequences to the organization's mission and finances. Specifically, Freedom Watch contends that "Defendant McAleenan, as head of ... [DHS,] has directly caused injury" to the organization because "his indifference and inaction towards enforcing the law that DHS is uniquely charged with administering harms Freedom Watch's purpose and mission." Pl.'s Opp'n 4. Plaintiff makes three arguments in support of this claim. First, Freedom Watch asserts that DHS's refusal to investigate has compromised its "mission to inform and educate the public about government corruption and abuse through its normal processes" (Freedom of Information Act ("FOIA") requests and litigation). Id. at 7. Second, Freedom Watch states that Defendant's inaction has harmed the organization's finances by "necessarily caus[ing] a corresponding downturn in financial support" and depriving it of "a substantial increase in financial support due to the attendant increase in positive publicity" that the requested investigation would have elicited. Id. at 4. In other words, because Freedom Watch is "entirely reliant on support by its members and supporters in the form of contributions and donations," id., Plaintiff argues that the alleged effect of the agency inaction on its bottom line adds up to an organizational harm. Third, Freedom Watch states that Defendant's refusal to act forced it to file a petition with DHS, thereby requiring the organization to "expend resources outside of its normal scope of business." Id.
Defendant maintains that none of these arguments support organizational standing. First, DHS characterizes Plaintiff's alleged injury as a generalized grievance— the widely shared interest of all citizens "in the government following the law"— that is insufficiently concrete and particularized to establish standing. Def.'s Mot. to Dismiss ("Def.'s Mot.") 7-8, ECF No 5 (citations omitted). Defendant emphasizes that Freedom Watch has not only failed to specify any particularized allegation that "constitute[s] more than simply a setback to the organization's abstract social interests," id. at 8-9, but also failed to identify any non-speculative asserted harm that is "certainly impending," id. at 9 (quoting Clapper v. Amnesty Intern. USA (Clapper)), 568 U.S. 398, 409, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013). Second, DHS rejects Plaintiff's financial arguments, emphasizing both that Freedom Watch's asserted reduction in funding cannot support its claim of injury in fact and that any "diversion of resources to litigation ... is considered a `self-inflicted' budgetary choice that cannot qualify as an injury in fact." Def.'s Reply 3 (first citing Hodgkins v. Holder, 677 F.Supp.2d 202, 206 (D.D.C. 2010),
To determine whether an organization has standing in its own right, a court "ask[s], first, whether the agency's action or omission to act injured the [organization's] interest and, second, whether the organization used its resources to counteract that harm." Food & Water Watch, 808 F.3d at 919 (second alteration in original) (quoting PETA v. USDA, 797 F.3d 1087, 1093 (D.C. Cir. 2015)). To establish an injury to its organizational interests that qualifies as injury in fact, "an organization must allege that the defendant's conduct perceptibly impaired the organization's ability to provide services." Turlock Irrigation Dist. v. FERC, 786 F.3d 18, 24 (D.C. Cir. 2015). Such perceptible impairment requires the defendant's conduct to inhibit the organization's "daily operations." PETA, 797 F.3d at 1094 (quoting Action All. of Senior Citizens of Greater Phila. v. Heckler, 789 F.2d 931, 938 (D.C. Cir. 1986)). "Furthermore, an organization does not suffer an injury in fact where it `expend[s] resources to educate its members and others' unless doing so subjects the organization to `operational costs beyond those normally expended.'" Food & Water Watch, 808 F.3d at 919 (quoting Nat'l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1434 (D.C. Cir. 1995)) (citing Nat'l Ass'n of Home Builders v. EPA, 667 F.3d 6, 12 (D.C. Cir. 2011)).
Because Freedom Watch does not sufficiently allege an injury to its interests, Plaintiff's contentions concerning injury in fact each fail at the initial stage of the Court's inquiry. Take, first, the face of the complaint itself. The pleading does not reference any injury in fact that is specific to Freedom Watch as an organization. In its complaint, Plaintiff seeks a writ of mandamus to ensure that the "immigration laws of the United States of America" operate "to ensure that those who become part of the country and particularly those who lead it bear allegiance and loyalty to the United States[,] ... consistent with the constitutional[,]" statutory, and regulatory "design and intention." Compl. 26. Apart from the bald assertion that a writ of mandamus is necessary because "Plaintiff will have no adequate remedy at law other than [such a writ] to order the agency to take action" in response to Freedom Watch's petition to DHS, id. ¶ 8, Plaintiff does not identify any harm to the organization, specifically, that DHS has caused. If anything, Freedom Watch styles the asserted harm as one that affects "[t]he American people" as a whole, who "are entitled to a clear decision and the confidence that the law is being respected and upheld." Id. ¶ 15. But it is black letter law that such an interest in general law enforcement, common to all citizens, does not create standing. Lujan, 504 U.S. at 573-74, 112 S.Ct. 2130 ("[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."). In other words, an asserted interest in the government following the law is insufficiently concrete and particularized to establish injury in fact— as Defendant notes. See Def.'s Mot. 7 (citing Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 482-83, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); Bernstein v. Kerry, 962 F.Supp.2d 122, 128 (D.D.C. 2013)). Freedom Watch's complaint provides no other factual allegations or argumentation at all to explain how, precisely, the organization is harmed. Thus, the complaint itself
Nor do the allegations advanced in Plaintiff's opposition cure this deficiency. Consider Plaintiff's assertions that Defendant's inaction "harms Freedom Watch's purpose and mission." Pl.'s Opp'n 4. At no point does Plaintiff offer any concrete and particularized factual allegations that explain how, exactly, the inaction hurt its mission or otherwise "perceptibly impaired the organization's ability to provide services." Turlock Irrigation Dist., 786 F.3d at 24. Again, the sole answer provided in the complaint is that the organization is generally interested in enforcing the law on behalf of all citizens, which is plainly inadequate to connect Plaintiff's assertions to a concrete and particularized harm to the organization's mission. Freedom Watch does say a bit more in its opposition, stating that its mission is "to educate the public of government corruption and abuse," and that it has been unable to "fulfill its mission ... through its normal processes of submitting FOIA requests and litigation." Pl.'s Opp'n 7. Missing, though, is any further discussion to link up DHS's alleged inaction to the organization's lack of access to information and/or interference with its operations. Filling in the dots here and attempting to give Freedom Watch the generous read that it is due at this stage of litigation, the Court imagines Plaintiff to suggest that, had DHS acted on its petition, the organization could then have submitted FOIA requests, obtained information, and subsequently released that information to the public. On this theory, Plaintiff is deprived of information that it could have accessed if the agency had acted. In other words, what Freedom Watch seems to be alleging—to the extent it goes beyond abstract and conclusory generalizations about harm to its mission at all—is an informational injury.
However, an argument for informational injury is a poor fit here. To establish such an injury, "a party shows that `it has been deprived of information that, on its interpretation, a statute requires the government or a third party to disclose to it, and [that] it suffers, by being denied access to that information, the type of harm Congress sought to prevent by requiring disclosure.'" Judicial Watch, Inc. v. Office of Dir. of Nat'l Intelligence, No. 1:17-CV-00508 (TNM), 2018 WL 1440186, at *2 (D.D.C. Mar. 22, 2018) (quoting Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016)); see also FEC v. Akins, 524 U.S. 11, 21-22, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998). A closer read of the case on which Freedom Watch primarily relies—PETA, 797 F.3d 1087—reveals why this argument does not succeed in this context. Plaintiff suggests that PETA presented facts that are "nearly indistinguishable" from the case at hand. Pl.'s Opp'n 7. But PETA involved the USDA's failure to apply Animal Welfare Act ("AWA") general welfare standards to non-research birds, thereby specifically denying an animal rights organization access to "investigatory information, and a means by which to seek redress for bird abuse." 797 F.3d at 1095. As such, the agency's inaction pursuant to the AWA impaired the organization's "daily operations." Id. at 1094. In this case, in contrast, Freedom Watch is alleging that an agency's failure to act in the manner that the INA requires (on Plaintiff's view of the law) has deprived it of the opportunity to submit FOIA requests regarding the agency's action and thereby obtain the information that the DHS action would have produced. At no point does Freedom Watch explain, though, how any particular portion of the INA requires disclosure of information or how, specifically, "it suffers, by being denied access to that information, the type of harm Congress sought to prevent
Elsewhere in its opposition brief, Plaintiff takes a different tack and suggests that the financial ramifications of DHS's conduct give rise to injury in fact. Pl.'s Opp'n 4, 7. This argument has two parts. Freedom Watch initially contends that "Defendant's inaction ... necessarily cause[d] a corresponding downturn in financial support" and deprived the organization of "positive publicity" that would have allowed Freedom Watch to reap "a substantial increase in financial support" from contributions and donations. Id. at 4. Plaintiff also asserts that it needed to expend additional resources "to counteract Defendant's specific refusal to act."
Both of these claims similarly miss the mark. Taking them in reverse order, Plaintiff asserts that Freedom Watch "had to expend resources outside of the scope of its normal course of business" by filing this lawsuit. Id. at 7. But this Circuit has clearly established that "an organization's use of resources for litigation, investigation in anticipation of litigation, or advocacy is not sufficient to give rise to an Article III injury." Food & Water Watch, 808 F.3d at 919 (citing PETA, 797 F.3d at 1093-94; Turlock Irrigation Dist., 786 F.3d at 24); see also Equal Rights Ctr. v. Post Props., Inc., 633 F.3d 1136, 1140 (D.C. Cir. 2011) ("[D]iversion of resources to litigation or investigation in anticipation of litigation does not constitute an injury in fact sufficient to support standing."). This bare assertion is thus inadequate as a matter of law, and Plaintiff cannot rely on its own voluntarily-expended litigation-related costs to bootstrap its way into standing.
Plaintiff's contentions concerning the loss of contributions are a closer call, yet ultimately also fall short of adequately alleging facts to establish injury in fact. Freedom Watch's argument rests on the factual allegation that Defendant's inaction "necessarily cause [sic]" a "downturn in financial support" and also deprived it of positive publicity that would have created an increase in donations.
In addition, Plaintiff does not adequately establish that Defendant's inaction produced or will produce a future harm to the organization. In assessing the possibility of a future injury as a result of Defendant's inaction, the operative question is whether Freedom Watch has alleged facts to plausibly establish that the purported harm (loss of contributions and donations) is either "certainly impending" or that there is a "substantial risk" that it "will occur." Id. (first referencing Clapper, 568 U.S. at 410-14, 133 S.Ct. 1138, then citing Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014)). "[T]he proper way to analyze" such an "increased risk-of-harm claim is to consider the ultimate alleged harm ... as the concrete and particularized injury and then to determine whether the increased risk of such harm makes injury to ... [the organization] sufficiently `imminent' for standing purposes." Attias v. Carefirst, Inc., 865 F.3d 620, 627 (D.C. Cir. 2017) (quoting Food & Water Watch, 808 F.3d at 915).
Applying these principles here, Freedom Watch has not cleared the injury in fact bar. Plaintiff provides only the bare statement that the agency's inaction "necessarily causes[s]" the asserted harm and that, in a counterfactual world where the agency did act, the organization "would have clearly experienced a substantial increase in financial support." Pl.'s Opp'n 4. This assertion appears to set forth a causal chain wherein, because Freedom Watch is "entirely reliant on support by its members or supporters in the form of contributions and donations," any event that decreases its donations harms the organization's finances. Id. Yet Plaintiff never offers further factual allegations to establish, with any level of clarity, a basis for the claim that there is a "substantial risk" that there will be a "downturn in financial support" as a result of DHS's inaction.
In this case, Freedom Watch's omission of any supporting facts places the organization closer to the position of the plaintiffs in Clapper than to those in Attias. There is no discussion of financial injury to the organization in the complaint whatsoever. And as noted previously, the opposition brief never says anything more about the organization's finances and how they are affected by government responses to organizational actions taken in furtherance of its mission. For instance, has Freedom Watch undertaken similar petitions in the past, and has the result been an upturn in donations? Are there historic downturns in donations after an agency fails to act in response to Freedom Watch's mission? How does Freedom Watch know that any such downturns are connected to the harm at all? Or, conversely, have there been periods when members were motivated to support the organization more so that it could continue to push an obstinate agency towards revealing information? And again, how would the organization measure such an effect? Without knowing anything about these facts, the Court can only guess at the "attenuated chain of possibilities," Clapper, 568 U.S. at 410, 133 S.Ct. 1138, involving third-party actions by independent actors exercising independent judgment, that produces the asserted harm. Although Freedom Watch need not plead its case with certainty at the motion to dismiss stage, the organization nonetheless must plausibly allege a "substantial risk" of future injury. Attias, 865 F.3d at 626 (citing In re Idaho Conservation League, 811 F.3d 502, 509 (D.C. Cir. 2016); Nat'l Ass'n of Broadcasters v. FCC, 789 F.3d 165, 181 (D.C. Cir. 2015); Sierra Club v. Jewell, 764 F.3d 1, 7 (D.C. Cir. 2014)). The problem for Freedom Watch is that it has failed to make its case by "advancing `specific facts' to support its claim to have suffered an injury-in-fact." N.Y. Republican State Comm., 927 F.3d at 503-04 (quoting Lujan, 504 U.S. at 561-62, 112 S.Ct. 2130) (citing Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002). Thus, Plaintiff's bare assertions cannot establish injury in fact based on an alleged harm to the organization's finances. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (emphasizing that, even under the more permissive 12(b)(6) standard, "[t]hreadbare recitals" and "mere conclusory statements" are insufficient); Food & Water Watch, 808 F.3d at 913 (emphasizing that a court addressing a Rule 12(b)(1) motion need not "accept inferences that are unsupported by the facts set out in the complaint") (quoting Arpaio, 797 F.3d at 19)). Accordingly, Plaintiff has not established that it has "suffered a concrete and demonstrable injury to [its] activities" sufficient to endow it with organizational standing.
Plaintiff also raises an associational standing theory based on its "represent[ation of] the views, ideologies[,] and
An organization has associational "standing to sue under Article III of the Constitution of the United States only if (1) at least one of its members would have standing to sue in his own right; (2) the interest it seeks to protect is germane to its purpose; and (3) neither the claim asserted nor the relief requested requires the member to participate in the lawsuit." Am. Trucking Ass'ns v. Fed. Motor Carrier Safety Admin., 724 F.3d 243, 247 (D.C. Cir. 2013) (quoting Rainbow/PUSH Coal. v. FCC, 330 F.3d 539, 542 (D.C. Cir. 2003)) (citing Hunt v. Wash. State Apple Adver. Comm'n (Hunt), 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)). Both parties appear to recognize this rule, see Pl.'s Opp'n 5 (quoting similar rule statement in Hunt, 432 U.S. at 343, 97 S.Ct. 2434); Def.'s Reply 6 (offering similar recitation of rule and citing Fund Democracy, LLC v. SEC, 278 F.3d 21, 25 (D.C. Cir. 2002)), and dispute whether Freedom Watch satisfies this standard.
Here, Plaintiff has not alleged facts sufficient to satisfy the associational standing standard. Notably, Freedom Watch does not identify a single member or provide any declarations or statements to indicate the organization brings suit on behalf of their interests. And because, as Defendant notes, "Plaintiff has not provided statements from any members or supporters describing their views," Def.'s Reply 7, the Court can do no more than speculate about whether any of its members would have standing to sue in their own right. For instance, without knowing more about the members on behalf of whom Freedom Watch says it brings suit, the Court cannot assess whether the organization can "satisfy the first requirement of the associational standing inquiry" by showing that "at
Rather than offering more information about its members that might establish how, if at all, at least one member has standing in her own right, Freedom Watch seems to contend that it has standing because it is protecting its members' identities. Pl.'s Opp'n 5 (analogizing its claim to NAACP, 357 U.S. 449, 78 S.Ct. 1163, and urging that organization is representing its members to permit them to avoid "ridicule[]" and possible "retaliatia[on]"); see also Def.'s Reply 8 n.2 ("Plaintiff appears to argue that an organization is automatically conferred associational standing for Article III purposes because its members... do not wish to be identified out of fear of ridicule or retaliation."). But this claim overreads NAACP, 357 U.S. 449, 78 S.Ct. 1163. There, the Supreme Court held that the NAACP had standing to "assert, on behalf of its members, a right personal to them to be protected from compelled disclosure by the State of their affiliation with the [NAACP] as revealed by the membership lists." Id. at 459-60, 78 S.Ct. 1163. The NAACP court, in other words, established that the organization could represent its members' individually-held, constitutional right to freedom of association (and, thus, to freedom from state-compelled disclosure of association) where requiring that the asserted right "be claimed by the members themselves would result in nullification of the right at the very moment of its assertion." Id. at 459, 78 S.Ct. 1163. NAACP thus does not stand for the broad proposition that an organization automatically obtains Article III standing on behalf of its members anytime that a member would prefer to avoid identification —as Plaintiff appears to assert. See Pl.'s Opp'n 5. And on the Court's read of NAACP's facts and holding, Freedom Watch's reliance on NAACP is unpersuasive because Plaintiff does not articulate how this suit involves an underlying, individually-held, constitutional right that is threatened by a state's demand that the organization reveal its membership list. Without offering facts to support such a claim, Plaintiff's reliance on NAACP as its basis for associational standing is misplaced.
Thus, the bottom line is that Freedom Watch has failed to establish injury in fact to support associational standing. Accordingly, Plaintiff has not asserted any basis for standing, and the Court grants Defendant's motion to dismiss for lack of subject matter jurisdiction.
Even if Plaintiff had standing, though, its claim would still fail to survive Defendant's motion to dismiss. There are two fundamental defects, both of which flow from the same underlying point: because, for the reasons set forth below, there is no statutory provision that mandates agency action here, DHS's enforcement decision was committed to agency discretion by law. And because this is the case, Plaintiff cannot (1) establish that it is entitled to mandamus relief or (2) state a claim for relief under the APA. To underscore why Plaintiff has not plausibly stated a valid claim for relief, the Court will begin with Plaintiff's arguments seeking mandamus and then turn to Freedom Watch's alternative argument under the APA.
As the Court previously noted, the first remedy that Plaintiff seeks is a writ of mandamus ordering DHS to respond to Plaintiff's petition by investigating Representative Omar. See Compl. 25-26; Pl.'s Opp'n 7 ("Freedom Watch's complaint clearly asks for `an order for the issuance of a writ of mandamus for the Defendant to enforce governing immigration law[.]'" (quoting Compl. 1)). Freedom Watch contends that the Court has the authority to issue this writ because, on Plaintiff's account, 8 C.F.R. § 270.2(b) "clearly sets forth a mandatory duty" for DHS to act "once certain prerequisites are met, as they have been here." Id. at 8. Stressing the use of the word "shall" in the cited regulation, Freedom Watch argues that DHS "must investigate" once it "receives a complaint that has a substantial probability of validity."
Here, Plaintiff has not plausibly established its "clear and indisputable" right to issuance of the writ. Am. Hosp. Ass'n, 812 F.3d at 189 (quoting Power, 292 F.3d at 784). The regulation on which Freedom Watch rests its argument, 8 C.F.R. § 270.2(b), is a portion of DHS's immigration regulations that addresses enforcement procedures in the context of document fraud.
In Chaney, the Supreme Court "instructed that when `shall' is used in an enforcement provision, it should be construed to confer discretion on an agency unless the statute or regulations provide substantive standards that constrain the exercise of discretion." Clarke, 767 F. Supp. 2d at 112 (citing Chaney, 470 U.S. at 835, 105 S.Ct. 1649; Dubois v. Thomas, 820 F.2d 943, 948-49 (8th Cir. 1987); City of Yakima v. Surface Transp. Bd., 46 F.Supp.2d 1092, 1099-1100 (E.D. Wash. 1999)). In addition to Chaney's specific directive, moreover, this Circuit has emphasized that even though "shall" "is usually interpreted as `the language of command,'" it is improper to "consider those words in isolation," without "also consider[ing] the language and structure of the [provision]." Sierra Club, 648 F.3d at 856 (citing Zivotofsky v. Sec'y of State, 571 F.3d 1227, 1243 (D.C. Cir. 2009) (internal quotations omitted)).
These principles control the case. Significantly, the cited provision is self-evidently an enforcement provision based on § 270.2's very title: "Enforcement procedures." 8 C.F.R. § 270.2. More specifically, it is a civil enforcement action, which means that it is properly considered as a prosecutorial function of DHS. See Citizens for Responsibility and Ethics in Wash. v. FEC (CREW), 892 F.3d 434, 438 (D.C. Cir. 2018) ("Under the APA, agency attorneys who bring civil enforcement actions are engaged in `prosecuting functions.'" (quoting 5 U.S.C. § 554(d))).
But even if this were not the case, and even if the Court found that the relevant conditions were met here (which it need not decide), Freedom Watch's position would remain untenable. The central gap in Plaintiff's argument is the failure to
In the alternative to its claim for mandamus relief, Freedom Watch argues that it has properly stated a claim for relief under the APA's private cause of action for "[a] person adversely affected by an agency action," including the agency's failure to act. Pl.'s Opp'n 12 (first citing 5 U.S.C. § 702, then citing 5 U.S.C. § 551(13)). Plaintiff's APA claim, like the mandamus claim that the Court just addressed, rests on 8 C.F.R. § 270.2(b) for the proposition that DHS has a mandatory duty to investigate "once the threshold [requirement of] `substantial probability of validity' is met.'" Id. According to Plaintiff, then, DHS's failure to investigate in the manner it is legally obligated to do, given Plaintiff's factual allegations, entitles Freedom Watch to bring suit under the APA. For the following reasons, however, this argument does not square with controlling law, and, accordingly, Plaintiff does not plausibly make out a claim upon which relief could be granted.
As discussed above, because the cited provision is plainly an enforcement provision, Plaintiff's APA claim involves DHS's choice not to undertake an enforcement action (by choosing not to investigate Representative Omar in response to Freedom Watch's petition). "[I]n cases that involve agency decisions not to take enforcement action," a court "begin[s]
Here, Plaintiff's APA argument, which it develops in a conclusory, four-sentence paragraph, see Pl.'s Opp'n 12, provides no grounds on which to rebut Chaney's presumption or to otherwise suggest that there is "law to apply" in this case. Plaintiff never goes beyond repeating its contention that the cited regulation sets forth a mandate for DHS to act. Freedom Watch's argument thus turns on the "use of the mandatory shall." Sierra Club, 648 F.3d at 856. But as this Court discussed previously with respect to mandamus, Freedom Watch has never explained how the provision on which it relies provides guidance as to what causes a petitioner's complaint to DHS to, "on its face, have a substantial probability of validity." Pl.'s Opp'n 9 (quoting 8 C.F.R. § 270.2(b)). Because there is nothing in the substantive provision to which Plaintiff points that "has provided guidelines for the agency to follow in exercising its enforcement powers," CREW, 892 F.3d at 439 (quoting Chaney, 470 U.S. at 832-33, 105 S.Ct. 1649) (citing Webster v. Doe, 486 U.S. 592, 600, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988)), there is no indication that the language on which Freedom Watch relies in fact constrains DHS's discretion concerning investigative actions. Accord Sierra Club, 648 F.3d at 856 (holding that, in the context of a statute that did not stipulate what made action "necessary," "the use of the mandatory `shall' was not sufficient to provide legal standards for the court's review of the [agency's] decision not to act"). As a result, the Court is left to conclude that § 270.2(b) "is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion.'" CREW (quoting Chaney, 470 U.S. at 830, 105 S.Ct. 1649). Thus, Plaintiff has not stated a valid claim for relief pursuant to the APA.
For the foregoing reasons, Defendant's motion to dismiss is
