Plaintiffs Kelley Amadei, Carola Cassaro, Laura Cucullu, Corey Fields, Anne Garrett, Amy Lanigan, Matt O'Rourke, Eric Polk, and Karen Polk bring this action requesting declaratory and injunctive relief pursuant to § 702 of the Administrative Procedure Act ("APA"),
*151Before the court is Defendants' motion to dismiss Plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). (See Defs. Mot. to Dismiss ("Defs. Mot.") (Dkt. 32); Defs. Mem. in Supp. of Defs. Mot. ("Defs. Mem.") (Dkt. 32-1).) For the reasons stated below, Defendants' motion is DENIED.
I. BACKGROUND
A. Facts
1. The Search of Passengers on Delta Flight 1583
On February 22, 2017, Plaintiffs were passengers on Delta Airlines Flight 1583, a domestic flight from San Francisco International Airport to New York's John F. Kennedy International Airport ("JFK"). (Compl. ¶ 1.) Most of the Plaintiffs reside in New York. (Id. ¶¶ 11-12, 15, 17-19.) Plaintiffs are a diverse group of individuals, consisting of nine men and women of a variety of ages and races. (Id. ¶¶ 11-19, 60.) Among them are several "consultant[s]," "journalist[s]," a pair of "marketing professional[s]," and a "university professor." (Id. ) Some of the Plaintiffs were traveling with family that day. For instance, Plaintiff Amadei was traveling with her spouse and seven-year-old son, and Plaintiffs Eric and Karen Polk are married. (Id. ¶ 60.) While diverse in background, Plaintiffs share two common experiences: they are "frequent passengers on domestic airline flights," and they all allege that Defendants subjected them to an unlawful search as Plaintiffs disembarked from this particular flight. (Id. ¶¶ 1, 9.)
After Plaintiffs' flight arrived at JFK, but before it parked at the gate, the flight crew announced to the passengers that as they deplaned "they would have to show documents to [CBP] officers meeting the flight." (Id. ¶ 36.) Following this initial announcement, the flight crew made "at least two announcements regarding the requirement that the passengers produce documents." (Id. ¶ 38.) A flight attendant clarified that "documents" meant a "passport or government-issued ID" and further stated that the passengers should be prepared to provide "any additional documentation that the officers requested." (Id. ) A flight attendant also told the passengers that "no passenger[ ] would be allowed to deplane without showing ... identification." (Id. ) At this point, many passengers and even several flight attendants "expressed consternation or dismay" and "wondered aloud about the purpose of the demand for documents, who the officers were, and why all passengers would be required to show such documents after a domestic flight." (Id. ¶¶ 37, 39.)
Following these announcements, a flight attendant opened the aircraft door located between the first class and economy cabins, which was the only exit from the aircraft. (Id. ¶ 40.) Outside the door and positioned in such a way as to block the exit were two "tall and physically imposing" Customs and Border Control ("CBP") agents, Officers John Doe 1 and John Doe 2 (the "Doe Officers"). (Id. ¶¶ 41, 43.) Both of the Doe Officers wore bulletproof vests that read "POLICE / U.S. CUSTOMS AND BORDER PROTECTION" and carried guns that were visible to the passengers onboard. (Id. ¶¶ 41-43.) As passengers approached the door, the Doe Officers permitted each passenger to exit only upon a complete and thorough review of the passenger's identification document. (Id. ¶¶ 45, 47.) Plaintiffs observed that the demeanor of the Doe Officers during this process was "stern and unfriendly." (Id. ¶ 44.)
*152Plaintiffs were distressed and alarmed by the situation. (Id. ¶¶ 48-50.) Plaintiff Amadei, who was traveling with her spouse and seven-year-old son (who has darker skin than she), had to explain to the Doe Officers that her son is only seven years old and does not carry identification. (Id. ¶ 48.) Plaintiff Amadei's son was noticeably frightened by this experience, at one point asking his mother if the family was in trouble. (Id. ) Upon escorting her family out of the gate area, Plaintiff Amadei asked the Doe Officers why the search was happening and was told, "it's not for you to worry about; we do it from time to time," or words to that effect. (Id. ¶ 50.)
Plaintiffs allege that they did not consent to the identification search. (Id. ¶ 51.) Instead, they understood from the circumstances that the search was mandatory and that they would not be free to exit the aircraft until they submitted their documents to the Doe Officers. (Id. ) Plaintiffs allege that CBP did not have a valid judicial warrant authorizing the alleged search and seizure of Flight 1583 passengers and further allege that CBP did not have any individualized reasonable suspicion that any passenger, "much less all passengers," had engaged in criminal activity. (Id. ¶ 54.)
2. CBP's Explanation for the Search
In response to media reports about the incident, CBP "attempted to justify its actions by asserting that the officers involved were searching for a specific person subject to removal from the United States." (Id. ¶ 56.) CBP also justified the search by saying that searches like the one that occurred on Flight 1583 are "routine," and that the officers acted "pursuant to longstanding CBP policy," citing regulations permitting searches of passengers arriving to the United States from abroad. (Id.) In a public statement released on February 23, 2017, CBP stated:
U.S. Customs and Border Protection (CBP) at John F. Kennedy Airport was contacted by U.S. Immigration and Customs Enforcement (ICE) yesterday, February 22, 2017, to assist in locating an individual possibly aboard Delta flight 1583 from San Francisco International Airport to JFK. This individual was ordered removed by an immigration judge. To assist our law enforcement partners, two CBP officers requested identification from those on the flight in order to help identify the individual. The individual was determined not to be on the flight.
CBP often receives requests from our law enforcement partners to assist in various ways, including identifying a person of interest. CBP will assist when able to.
(Id. ¶ 57.) When asked by the news media whether the search was voluntary, a spokesperson for CBP stated, "[i]t is always best to cooperate with law enforcement, so as to expedite your exiting the airport in a timely manner." (Id. ¶ 61. (alteration in original) ) CBP subsequently followed up with a statement claiming that the Doe Officers had requested "consensual assistance from passengers aboard the flight." (Id. ¶ 62.) Separately, a CBP spokesperson told a reporter that the identification checks are "not a new policy" and that it is "not unusual for us to assist our fellow law-enforcement agencies." (Id. ¶ 63.) Another Department of Homeland Security ("DHS") official told the media that such searches and collaboration between CBP and ICE are "routine." (Id. ¶ 64.)
In an email exchange regarding the search, Defendant Russo asserted that the search was undertaken at the request of ICE "to identify [an] individual" who was "removed by an immigration judge for domestic assault and other crimes." (Emails between Def. Russo and Jordan Wells ("Russo Emails") (Dkt. 1-1) at 1.) In the same exchange, Defendant Russo stated *153the following: "[w]e do this every day. Someone took a picture and put it on twitter. That's what led to the hysteria." (Id. ) Finally, in response to a media inquiry asking that CBP identify its statutory authority to examine the identification documents of all passengers on a domestic flight, CBP sent a link to a document on the CBP website entitled "CBP Search Authority" which cites
On February 27, 2017, Congressman Bennie G. Thompson, the Ranking Member of the U.S. House Committee on Homeland Security, wrote to ICE and CBP, stating that "[i]t is ... troubling that CBP officers called to assist apparently chose to require passengers, including U.S. citizens, to produce identification before disembarking, rather than confirming whether the individual was on the flight either by visual inspection, checking the passenger manifest, or confirming with ICE that the individual was aboard." (Id. ¶ 70. (alteration in original) ) Rep. Thompson asked CBP a variety of questions to which he sought written responses by March 10, 2017. (Id. ) According to Plaintiffs, as of the date of the filing of the complaint, Rep. Thompson has not yet received a response from CBP or ICE. (Id. ¶ 71.) On September 13, 2017, Plaintiffs' counsel asked Defendants Duke, McAleenan, Russo, Homan, Decker, and Jennings to clarify whether CBP has a policy that would permit the stopping and searching of passengers on domestic flights and, if so, the legal authority to justify such a policy. (Id. ¶ 72.) Plaintiffs received a letter from DHS's Office of General Counsel acknowledging receipt of the letter, but Plaintiffs have not yet received a substantive response. (Id. ¶ 73.)
B. Procedural History
Plaintiffs filed their complaint on October 12, 2017. (Compl.) Plaintiffs bring claims based on two causes of action. First, Plaintiffs allege that their Fourth Amendment rights were violated when they were required to produce identification before exiting the aircraft.
On February 12, 2018, the court granted Defendants leave to move to dismiss the Complaint. (Feb. 12, 2018, Min. Entry.) The motion was fully briefed on April 20, 2018. (Defs. Mot.; Defs. Mem.; Pls. Opp'n to Defs. Mot. ("Pls. Opp'n") (Dkt. 33); Defs. Reply (Dkt. 34).)
*154II. LEGAL STANDARDS
A. 12(b)(1) Standard
Pre-answer motions to dismiss for lack of standing are governed by Federal Rule of Civil Procedure 12(b)(1). See Fed. R. Civ. P. 12(b)(1) (permitting dismissal for "lack of subject-matter jurisdiction"); Carter v. HealthPort Techs., LLC,
At the pleading stage, Plaintiffs have the burden of "alleg[ing] facts that affirmatively and plausibly suggest that [they] have standing to sue." Carter,
*155B. 12(b)(6) Standard
The purpose of a motion to dismiss for failure to state a claim under Rule 12(b)(6) is to test the legal sufficiency of Plaintiffs' claims for relief. Patane v. Clark,
As with a facial 12(b)(1) motion, when reviewing a complaint on a motion to dismiss for failure to state a claim, the court must accept as true all allegations of fact in the complaint and draw all reasonable inferences in favor of Plaintiffs. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd.,
III. DISCUSSION
Defendants raise two arguments in their motion to dismiss. First, Defendants argue, Plaintiffs lack standing for declaratory and injunctive relief. (Defs. Mem. at 8.) Second, Defendants contend that Plaintiffs have not alleged final agency action that is reviewable under the APA. (Defs. Mem. at 5.) The court ultimately finds neither argument persuasive and addresses each argument in turn.
A. Russo Declaration
Defendants submit a declaration from Defendant Francis Russo (the "Russo Declaration") in an attempt to controvert Plaintiffs allegations that CBP acted pursuant to an official policy. (See Russo Emails.) Instead of asserting a facial 12(b)(1) motion, "a defendant is permitted to make a fact-based Rule 12(b)(1) motion, proffering evidence beyond the [p]leading." Carter,
As the court discusses in greater detail below, Plaintiffs' argument for standing to seek declaratory and injunctive relief relies *156in large part on Plaintiffs' allegations that the search was conducted pursuant to a formal policy and is a routine practice. (See Pls. Opp'n at 22-23.) Plaintiffs supplement these allegations by attaching as an exhibit an email exchange in which Defendant Russo claims that CBP conducts this sort of search "every day." (See Russo Emails.) For the reasons stated below, the court finds that Plaintiffs' allegations and exhibit are facially sufficient to establish that Plaintiffs have sufficiently alleged standing at this stage of the litigation.
Defendants attempt to controvert Plaintiffs' allegations by averring that Defendant Russo's emails did not "express[ ] ... that there is a CBP policy or practice of checking identification of all passengers disembarking U.S. domestic flights, or all passengers disembarking a single U.S. domestic flight." (Russo Decl. ¶ 4.) Russo also claims that "[o]ther than the incident" at issue in this case, he is "not aware of another incident in which CBP checked the identification of all passengers disembarking a U.S. domestic flight." (Id. ¶ 5.) Plaintiffs respond to the Russo Declaration by arguing that it presents "[c]onclusory allegations" that are "insufficient to contradict plausible allegations" in Plaintiffs' complaint. (Pls. Opp'n at 6.) The court agrees with Plaintiffs and finds that the Russo Declaration does not contradict Plaintiffs' facially plausible allegations. Defendant Russo's conclusory disclaimer of the existence of any CBP policy or practice of searching domestic airline passengers is itself plainly contradicted by the content and context of Defendant Russo's email exchange and the statements of other CBP officials in defense of the search. Cf. Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi,
B. Article III Standing
Because standing concerns the court's jurisdiction, it is a "threshold question in every federal case" and "determin[es] the power of the court to entertain the suit." Davis v. Hain Celestial Grp.,
The standing requirement, as governed by Article III of the Constitution, restricts federal courts to the resolution of "Cases" and "Controversies." Lujan,
*157The "irreducible constitutional minimum of standing" contains three elements that Plaintiffs must satisfy. Lujan,
The parties primarily dispute whether Plaintiffs satisfy the injury in fact element. Defendants do not appear to dispute that Plaintiffs satisfy the causation and redressability elements of standing. (See Defs. Mem.)
Regarding the injury-in-fact element, Defendants argue that Plaintiffs lack standing to seek declaratory and injunctive relief against Defendants' search policy because Plaintiffs fail to show that they suffered an injury that warrants prospective relief. (See Defs. Mem. at 9-14.) Specifically, Defendants argue that Plaintiffs have not demonstrated that they are likely to experience a similar search in the future-a necessary showing for Plaintiffs to seek prospective relief-because Plaintiffs have not alleged that they have definitive plans to take a domestic flight in the future and have only been subjected to a search once before. (See id. at 9-10.) Defendants also argue that Plaintiffs cannot show that Defendants conducted the search pursuant to a formal policy, the absence of which diminishes the likelihood that Plaintiffs will experience another search in the future. (See id. at 14-15.) As a result, Defendants argue, Plaintiffs cannot show that they are sufficiently likely to suffer a similar injury in the future and thus lack standing to seek prospective relief. (See id. at 10.)
Plaintiffs respond by relying on their allegations that Defendants' search was conducted pursuant to a formal policy and is a routine practice-allegations that derive from Defendants' own statements in defense of the search. (Pls. Opp'n at 11; Compl. ¶ 64.) Plaintiffs assert that these allegations, in conjunction with their allegation that they are frequent domestic air travelers, establish that there is a sufficiently strong likelihood that Plaintiffs will experience a similar search in the future when they travel on another domestic flight. (See Pls. Opp'n at 12-13.) Plaintiffs argue that, at this early stage in the litigation, these allegations are sufficient to show that they have standing to seek prospective relief against the policy that has injured them once before. (Id. )
For the reasons stated below, the court finds that the majority of Plaintiffs have plausibly alleged that they have standing to seek declaratory and injunctive relief from Defendants' search policy.
1. Injury in Fact
a. Legal Standard
There is a "low threshold" for establishing an injury in fact. Ross v. Bank of Am., N.A. (USA),
Because Plaintiffs seek prospective relief, in the form of a declaration and injunction preventing Defendants from conducting future searches (Compl. at pp. 19-20), Plaintiffs "cannot rely on past injury to satisfy the injury requirement but must [instead] show a likelihood that [they] will be injured in the future." Deshawn E. ex rel. Charlotte E. v. Safir,
*159b. Application
The court finds that Plaintiffs satisfy the injury in fact element because they have plausibly alleged that they face a sufficient likelihood of experiencing another search. While Plaintiffs allege that they have only been subjected to one prior search, they have proffered numerous statements from Defendants admitting that this search was part of a "routine" practice conducted pursuant to a formal "policy." (See Compl. ¶¶ 49-50, 56-57, Russo Emails.) The Second Circuit has found that alleging the existence of these two factors is generally sufficient for a plaintiff who has been injured by a practice once before to have standing to seek prospective relief. See Deshawn E.,
Rather than deny the existence of any policy or routine practice, Defendants repeatedly defended the search as "not a new policy" and explained that it is "not unusual for [Defendants] to assist [their] fellow law-enforcement agencies" in this "routine" manner. (See Compl. ¶¶ 63-64.) At the pleading stage, the court accepts Plaintiffs' allegations about Defendants' statements as true and draws the reasonable inference that Defendants meant what they said: that the search was conducted pursuant to a formal policy and is a routine practice. In turn, the court finds that these factors establish that Plaintiffs, who are frequent domestic airline travelers, face a substantial risk of experiencing another search in the future. (See id. ¶¶ 9, 11-12, 15, 17-19.)
Defendants vigorously dispute that their statements are sufficient to establish standing. For support, Defendants rely on the Supreme Court's decision in City of Los Angeles v. Lyons,
The court finds that Plaintiffs' case can be distinguished from Lyons for at least four reasons. First, for the reasons explained below in the court's discussion of Plaintiffs' APA claim, the court finds that Plaintiffs have plausibly alleged that the JFK search was conducted pursuant to a formal policy or its functional equivalent. CompareDeshawn E.,
Second, Lyons is distinguishable given the substantial allegations in Plaintiffs' complaint about the widespread and "routine" nature of Defendants' searches. (Compl. ¶ 64.) As Defendant Russo put it, Defendants conduct this sort of search "every day." (See id. Russo Emails.) Other courts that have considered Lyons often find that a policy or practice that is widespread is more likely to cause recurring injury than an isolated practice. Compare Floyd v. City of New York,
While Plaintiffs only allege that they have experienced one prior search, and do not allege the existence of any other particular searches of this nature, "there is no per se rule requiring" that they allege the existence of "more than one past act, or any prior act, for that matter, as a basis for finding a likelihood of future injury." See Roe v. City of New York,
Third, the court finds that Plaintiffs have shown that they are more likely than simply "any other citizen" to be subjected to another search in the future. Lyons,
Here, Plaintiffs' frequent domestic airline travel, in conjunction with Defendants' admitting to frequently conducting searches at the airport, establishes that Plaintiffs face a particularized risk of experiencing another search during one of their future domestic flights.
*162Ligon v. City of New York,
Fourth, unlike the plaintiff in Lyons, Plaintiffs' risk of experiencing recurring harm does not depend on their engaging in unlawful activity, a distinction that other courts have found significant. See Floyd,
As a result, the court finds that Plaintiffs' case is distinguishable from Lyons and that Plaintiffs have plausibly alleged that they face a sufficient likelihood of being subjected to another search by Defendants in the future. Plaintiffs therefore satisfy the injury in fact element of Article III standing.
2. Causal Connection
Defendants do not appear to dispute that Plaintiffs satisfy the causation element of standing. Where, as here, a plaintiff challenges the legality of a government action, and the plaintiff alleges that he or she was the "object of the [challenged] action ... at issue," then "there is ordinarily little question that the [challenged] action or inaction has caused [the plaintiff] injury." Lujan,
3. Redressability
Defendants also do not appear to dispute that Plaintiffs satisfy the redressability element of the standing analysis. The redressability element "focuses on whether a plaintiff 'personally would benefit in a tangible way from the court's intervention.' " Chevron Corp. v. Donziger,
For these reasons, the court finds that Plaintiffs have standing to seek declaratory and injunctive relief challenging the Defendants' alleged policy and practice of searching domestic airline passengers.
C. Plaintiffs' APA Claim
Defendants move to dismiss Plaintiffs' APA claim on the basis that Plaintiffs cannot show final agency action.
In order for agency action to be final, two conditions must be met. "First, the action must mark the consummation of the agency's decisionmaking process-it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow." Salazar v. King,
Applying this flexible and pragmatic standard to the facts here, the court finds that at this early stage in litigation Plaintiffs have plausibly alleged final agency action. First, the finality requirement is met here. Based on the numerous statements cited in the complaint from spokespersons for the CBP, (see Compl. ¶¶ 50-68, Russo Emails) the court finds that Plaintiffs have adequately alleged the existence of a policy or routine practice of CBP conducting identification searches of disembarking domestic airline passengers. Plaintiffs allege the following facts in support of their claim that Defendants conducted the JFK search pursuant to a policy or regular practice:
(1) In a public statement released on February 23, 2017, CBP noted that they "often receive[ ] requests from our law enforcement partners to assist in various ways, including identifying a person of interest ... [and] CBP will assist when able to." (Id. ¶ 57.)
(2) In response to Plaintiff Amadei asking the Defendant Doe Officers why the passengers had been searched, one of the Doe Officers told her that "it's not for you to worry about; we do it from time to time," or words to that effect. (Id. ¶ 50.)
(3) In response to a media inquiry, a CBP spokesperson stated that such identification checks are "not a new policy" and that it is "not unusual for us to assist our fellow law-enforcement agencies." (Id. f 63.)
(4) In response to a separate media inquiry, a DHS official asserted that "such searches and collaboration between CBP and ICE are 'routine.' " (Id. ¶ 64.)
(5) In an email exchange, Defendant Russo asserted that CBP "do[es] this every day. Someone took a picture and put it on twitter. That's what led to the hysteria."12 (Id. ¶ 65.)
(6) In response to an inquiry from Rolling Stone as to what authority justified the search, CBP responded by citing a written policy statement entitled "CBP Search Authority," which incorporates a formal regulation,19 C.F.R. § 162.6 . (Id. ¶ 68.)
*165Defendants contend that the complaint does not allege an "official policy," but rather, only "allege[s] that Defendants took certain action with respect to [Plaintiffs] and asks the [c]ourt to surmise therefrom the existence of a broader policy." (Defs. Mem. at 6.) The court disagrees. As an initial matter, the court notes that, at the motion-to-dismiss stage, the court is required to draw all reasonable inferences in Plaintiffs' favor. Here, this includes drawing inferences that support the existence of an official policy. Iqbal,
Given CBP's numerous acknowledgements of the existence of a policy, the court finds that Plaintiffs have plausibly alleged that CBP officers were acting pursuant to not only a policy, but a "routine" policy that isn't "new."
*166Nat'l Wildlife Fed'n v. Benn,
Plaintiffs also satisfy the second requirement of the Bennett test because they have plausibly alleged that Defendants relied on a policy to search Plaintiffs as they disembarked from a domestic flight, an effect that had significant legal consequences for Plaintiffs. See De La Mota,
In sum, Defendants' own statements and actions, as extensively documented in the complaint, bear all of the critical indicia of finality. Defendants readily admit that they had already determined Plaintiffs' rights as domestic airline passengers through a "routine" policy. Plaintiffs then faced the legal consequences of this policy when Defendants searched and seized them as Plaintiffs disembarked from Flight 1583. Through their actions, Defendants have thus "voluntarily relinquished the benefit of postponed judicial review." Ciba-Geigy Corp. v. EPA,
IV. CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss (Dkt. 32) is DENIED. Defendants' motion to dismiss Plaintiffs'
*167APA claim is DENIED. Defendants' motion to stay discovery pending a decision on Defendants' motion to dismiss (Dkt. 70) is DENIED as moot.
SO ORDERED.
Notes
All Defendants are named in their official capacities: Kirstjen Nielsen is the United States Secretary of Homeland Security; Kevin K. McAleenan is the Commissioner of U.S. Customs and Border Protection ("CBP"); Leon Hayward is the Acting Director of New York Field Operations for CBP; Francis J. Russo is the Port Director for the John F. Kennedy International Airport Port of Entry within CBP; Ronald D. Vitiello is the Acting Director of U.S. Immigration and Customs Enforcement ("ICE"); Thomas Decker is the Director of ICE's New York Field Office; David Jennings is the Director of ICE's San Francisco Field Office; and Defendants Doe 1 and Doe 2 are officers of CBP. (Compl. ¶¶ 20-27.) See Fed. R. Civ. P. 25(d).
Defendants do not move to dismiss Plaintiffs' Fourth Amendment claim. (See Defs. Mem.)
On January 16, 2018, Defendants moved to stay discovery pending their anticipated motion to dismiss. (Defs. 1st Mot. to Stay Discovery (Dkt. 20).) On January 25, 2018, Judge Scanlon denied the motion to stay, though she permitted Defendants to "raise the issue with the District Judge during the [pre-motion conference]." (Jan. 25, 2018, Order (Dkt. 24) at 2.) Defendants renewed their request to stay discovery at the February 12, 2018, pre-motion conference; this court denied the motion. (Feb. 12, 2018, Min. Entry). On October 19, 2018, Defendants renewed their motion to stay discovery, pending the outcome of the motion to dismiss. (Defs. 2nd Mot. to Stay Discovery (Dkt. 61).) On October 25, 2018, Judge Scanlon denied Defendants' renewed request. (Oct. 25, 2018, Order (Dkt. 67).) On November 5, 2018, Defendants appealed Judge Scanlon's decision to this court. (Not. of Mot. (Dkt. 70).) Defendants' appeal is now deemed moot, as a result of the court's order denying Defendants' motion to dismiss.
Defendants rely on Second Circuit decisions holding that a plaintiff must establish standing by "a preponderance of the evidence," arguing that the court cannot draw "from the pleading[ ] inferences favorable to" Plaintiffs. (See Defs. Mem. at 3.) The court has examined these cases and finds that they are not controlling with respect to Defendants' facial 12(b)(1) motion. See Aurecchione v. Schoolman Transp. Sys., Inc.,
Since "standing is not dispensed in gross," the court must consider whether each individual plaintiff has standing. Lewis v. Casey,
Defendants argue that only the "certainly impending," rather than the "substantial risk," standard for showing imminent harm applies here. (See Defs. Reply at 3-4.) In support of this argument, Defendants first rely on dicta in this court's decision in Cohen v. Facebook. Inc.,
The court rejects Defendants' contention that, as Defendants also argue, the substantial risk standard is inapplicable here because "the present case does not involve the threat of prosecution, or any civil or criminal penalty." (Defs. Reply at 4.) Defendants offer no case law to support this limitation, and other courts have rejected similar attempts to limit the applicability of the substantial risk standard. See, e.g., New York v. U.S. Dep't of Commerce,
Defendants further insist that the court should apply an "especially rigorous" standing inquiry derived from Raines v. Byrd,
The court notes that, unlike the plaintiff in Lyons, Plaintiffs here are not seeking money damages as relief for the JFK search. They seek only declaratory and injunctive relief to prevent future searches. (See Compl. at 19-20.)
Citing Lujan, Defendants argue that Plaintiffs must allege specific and "concrete plans" to travel again. (Defs. Mem. at 9-10 (citing Lujan,
The court also finds that Plaintiffs satisfy the statutory jurisdictional requirements for seeking declaratory relief. Under the Declaratory Judgment Act, federal courts have jurisdiction "[i]n a case of actual controversy" to grant declaratory relief that "declare[s] the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought."
Defendants do not specify whether their motion to dismiss Plaintiffs' APA claim is brought under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, or 12(b)(1) for lack of standing. (See Defs. Mem. at 5 n.2.) Courts within this circuit analyze the final agency action question under both standards. Compare Friends of Hamilton Grange v. Salazar, No. 08-CV-5220 (DLC),
As discussed above, Defendants provide a declaration from Defendant Russo in their motion to dismiss which states that his statement "did not express, nor did it intend to express, that there is a CBP policy or practice of checking identification of all passengers disembarking U.S. domestic flights, or all passengers disembarking a single U.S. domestic flight." (Russo Decl. ¶ 4.) On a Rule 12(b)(6) motion this court cannot consider an affidavit submitted by Defendants. Kopec v. Coughlin,
Defendants note that the authors of the media reports quoted in the complaint "do not speak on behalf of CBP." (Defs. Mem. at 6).) Defendants' objection is irrelevant, however, because the complaint cites statements not from the authors of the articles, but from CBP and DHS spokespersons themselves. (Compl. ¶¶ 61-64.) The court certainly affords great weight to the statements of CBP officials-no matter their seniority-who are authorized to speak to the public about CBP's policies. Cf. W. Ill. Home Health Care, Inc. v. Herman,