Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FREEDOM WATCH, INC., :
:
Plaintiff, : Civil Action No.: 19-cv-1374 (RC) :
v. : Re Document No.: 5 :
KEVIN K. MCALEENAN, :
:
Defendant. :
MEMORANDUM OPINION G RANTING D EFENDANT ’ S M OTION TO D ISMISS I. INTRODUCTION
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. [1] After DHS did not respond to this petition, Freedom Watch filed suit on May 13, 2019, moving this Court to issue a writ of mandamus compelling two DHS components, U.S. Immigration and Customs Enforcement (“ICE”) and U.S. Citizen and Immigration Services (“USCIS”) “to enforce governing immigration law,” Compl. 1, by investigating Plaintiff’s allegations against Representative Omar, see id. at 26–28. [2] Defendant moved to dismiss the suit both for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim *2 upon which relief can be granted pursuant to Federal Rule of Procedure 12(b)(6). For the forthcoming reasons, the Court grants Defendant’s motion to dismiss for lack of standing; in addition, the Court concludes that, even if Plaintiff had standing, Freedom Watch’s complaint does not state a claim sufficient to survive Defendant’s 12(b)(6) motion to dismiss.
II. BACKGROUND A. Factual and Procedural History Plaintiff Freedom Watch describes itself as a “public interest group that investigates аnd 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 alleged that Representative Omar committed marriage fraud to assist another individual, asserted to be her brother, in gaining entry to the United States. Petition 5–7; see also Compl. ¶¶ 57–95. Finally, Freedom Watch alleged that Representative Omar has engaged in anti-Semitic and terrorist activities, Petition 3–4; see also Compl. ¶¶ 27– 47, within five years of her naturalization, rendering her subject to deportation, Petition 14; see also Compl. 26–28.
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 *3 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.
B. Legal Standard
1. Federal Rule of Civil Procedure 12(b)(6)
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
,
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
,
2. Federal Rule of Civil Procedure 12(b)(1)
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.
,
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
,
III. ANALYSIS
Defendants move to dismiss on two grounds: lack of subject matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), and failure to state a claim, see Fed. R. Civ. P. 12(b)(6). The Court first addresses the jurisdictional question and then considers whether Plaintiff has set forth cognizable mandamus and APA claims. As detailed below, because Plaintiff has neither plausibly established standing nor plausibly made out a claim on which relief can be granted, Freedom Watch’s claims cannot survive either one of Defendant’s motions to dismiss.
A. Standing
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. For the forthcoming reasons, Plaintiff has not established injury in fact sufficient to establish standing on either basis.
To establish subject matter jurisdiction, “[t]he plaintiff ‘must clearly . . . allege facts
demonstrating each element’” of standing.
Spokeo, Inc. v. Robins
,
1. Organizational Standing
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, аs 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 agenсy 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
*9
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 (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 аnd
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), then quoting
Feld
,
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
,
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
,
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.,
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 acсess 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),
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.” Id. at 7.
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
,
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 donatiоns. Pl.’s Opp’n 4. Plaintiff is correct that “[a]n organization is obviously ‘harmed if
its contributors cease giving it money,’” and “even a slight injury is sufficient to confer
standing.”
N.Y. Republican State Comm. v. SEC
,
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
,
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
*16
inaction. Without more, though, the Court can only speculate about this asserted future harm.
A comparison of
Attias
,
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
*17
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
,
2. Associational Standing
Plaintiff also raises an associational standing theory based on its “represent[ation of] the
views, ideologies[,] and interests of its members and supporters.” Pl.’s Opp’n 5. Citing
NAACP
v. Ala. ex rel. Patterson
,
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 need not address the second prong of th[e organizational standing] inquiry because it is clear that FWW has not sufficiently alleged an injury to its interest.”). But the Court notes that the allegations here seem similarly lacking. Defendant’s reply brief also argues that “Plaintiff has not pled facts sufficient to
establish that it is the functional equivalent of a membership organization.” Def.’s Reply 7;
see
generally id.
at 7–10. On the Court’s read of Plaintiff’s submissions, it is clear that Freedom
Watch’s associational standing argument derives from a claim brought on behalf of its members.
See, e.g.
, Pl.’s Opp’n 4–5 (asserting that an organization which itself suffers no injury may have
“standing solely as the representative of its members”);
id.
at 5 (invoking
NAACP
,
*19
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.
,
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 becausе, 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 least one of its members has suffered an
‘injury-in-fact’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or
hypothetical.’”
Sierra Club v. Fed. Energy Regulatory Comm’n
,
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
,
B. Failure to State a Claim for Relief
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.
1. Plea for Mandamus Relief
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 *22 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. аt 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.” [11] Id. Plaintiff emphasizes, moreover, that although these statutes establish DHS’s “clear duty to act,” id. at 12, they are not the basis of its claim for relief (mandamus), which instead derives from the All Writs Act, 28 U.S.C. § 1651. Id. at 11–12. Defendant retorts that none of the cited statutory or regulatory provisions establish that DHS was required to act on Plaintiff’s petition, such that a writ of mandamus may not issue. Def.’s Mot. 11–12. For the following reasons, Defendant has the better argument. [12]
*23
The Mandamus Act, 28 U.S.C. § 1391, makes clear that a court has jurisdiction to issue a
writ of mandamus only if “(1) the plaintiff has a clear right to relief; (2) the defendant has a clear
duty to act; and (3) there is no other adequate remedy available to plaintiff.”
Fornaro v. James
,
Here, Plaintiff has not plausibly established its “clear and indisputable” right to issuance
of the writ.
Am. Hosp. Ass’n
,
In
Chaney
, the Supremе 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
,
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
),
2. APA Claim for Relief
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] with the
presumption that the agency’s action is unreviewable.”
Sierra Club
,
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
,
Accordingly, Freedom Watch has not carried its burden to plausibly establish a legal claim upon which relief can be granted. Consequently, the complaint must also be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).
IV. CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss is GRANTED . An order consistent with this Memorandum Opinion is separately and contemporaneously issued. Dated: February 26, 2020 RUDOLPH CONTRERAS
United States District Judge
Notes
[1] Plaintiff’s complaint states that Freedom Watch filed its DHS petition on October 2, 2014. Compl. ¶ 12, ECF No. 1. However, the petition itself, which Plaintiff has attached to its complaint, is dated February 22, 2019. See Petition to Commence Deportation Proceedings for Removal from the United States and/or Prosecution of Ilhan Omar (“Petition”), ECF No. 1-1. Thus, the Court dates Freedom Watch’s submission to DHS to February 22, 2019.
[2] Because the original document is unpaginated, the Court cites to ECF page numbers.
[3] Plaintiff’s complaint itself does not mention its members, as Defendant notes.
See
Defendant’s Reply in Support of Motion to Dismiss (“Def.’s Reply”) 1, ECF No. 10 (noting that
Plaintiff “did not plead any facts to support” its “theories of organizational and associational
standing” in its complaint). The Court nonetheless may consider material outside the pleading,
such as Plaintiff’s opposition, to resolve the 12(b)(1) jurisdictional challenge.
See Banneker
Ventures, LLC
,
[4] Plaintiff mentions resource expenditures required for “the filing of the OPR and IG Complaint in ECF No. 1-1.” Pl.’s Opp’n 7. However, the only material included in ECF No. 1-1 is Freedom Watch’s petition to DHS. The Court is thus uncertain what further documents, if any, Plaintiff references. In any event, because, as the Court discusses here, Plaintiff has not sufficiently alleged an injury to its organizational interests, this uncertainty does not affect the Court’s analysis. The Court discusses Plaintiff’s argument concerning expenditure of resources in more detail below.
[5] Plaintiff’s opposition brief uses the phrase “necessarily cause,” leaving the Court uncertain as to whether Freedom Watch is alleging a past harm (e.g., “caused”) or an ongoing and/or future harm (e.g., “causes”). The Court thus considers both possibilities.
[6] Because this “substantial risk” threshold is lower than
Clapper
’s “certainly impending”
language,
see Attias
,
[7] Because it reaches this conclusion at the first prong of the organizational standing
analysis, the Court need not consider the second prong: whether Freedom Watch used its
resources to counteract the alleged harm.
Accord Food & Water Watch
,
[9] To satisfy the first requirement of the associatiоnal standing inquiry, Plaintiff would
also be required to establish the other two elements of standing (traceability and redressability)
for at least one of its members.
Sierra Club
,
[10] Because, for the reasons discussed
supra
Part III.A, Plaintiff does not establish injury
in fact under an organizational standing theory, and because, for the reasons just discussed,
Plaintiff also fails to establish injury in fact under an associational standing theory, Freedom
Watch cannot satisfactorily establish the very first requirement of the “irreducible constitutional
minimum of standing.”
Lujan
,
[11] The text of the regulation refers to a “substantial probability of validity.” 8 C.F.R. § 270.2(b). Plaintiff’s filing transposes the words in this regulation and discusses the “substantial validity of probability,” an error that Defendant at times reproduces. See, e.g. , Def.’s Mot. 12. Here and throughout this memorandum opinion, the Court quotes the regulation as it is written.
[12] At times, Defendant discusses a writ of mandamus in the context of its redressability
argument, contending that Plaintiff cannot establish the redressability prong of standing because
it cannot predict the result of any (hypothetical) enforcement action against Ms. Omar.
See
Def.’s Mot. 11–12. Plaintiff states, however, that this stance misconstrues its argument:
according to Freedom Watch, it is “besides the point” whether any investigation would result in
actions taken against Ms. Omar because “[t]he investigation, in and of itself, would redress
Freedom Watch’s injury.” Pl.’s Opp’n 8. The Court need not resolve this dispute because, as
discussed previously, Freedom Watch lacks standing on independent grounds and, as discussed
next, there are more fundamental reasons why the remedy of mandamus is inappropriate here,
and which this Court assesses pursuant to Federal Rule of Civil Procedure 12(b)(6) and not Rule
12(b)(1).
See Sierra Club v. Jackson
,
[13] Plaintiff cites an unpublished, out-of-circuit case to argue that “[t]he authority of
federal courts to issue writs of mandamus is derived from the All Writs Act, 28 U.S.C. § 1651.”
Pl.’s Opp’n 11 (quoting
United States v. Bell
, No. 1:00-CR-153,
[14] Though Freedom Watch’s complaint also mentions several other statutory provisions, Plaintiff’s filings identify only this regulation as the source of the asserted “mandatory duty” that gives rise to Defendant’s “clear duty to act” by investigating Representative Omar. Pl.’s Opp’n 9; see also id. at 8 (“Freedom Watch identified 8 C.F.R. § 270.2(b), which clearly sets forth a mandatory duty[.]”); id. at 12 (“8 C.F.R. § 270.2(b) sets forth a mandatory investigation[.]”). Plaintiff’s opposition does not develop any argument concerning any other statutory or regulatory basis for DHS’s alleged duty to investigate, which is the asserted source of Plaintiff’s harm and the basis for the remedy that it seeks.
[15] DHS has delegated authority under the Immigration and Nationality Act to its components U.S. Customs and Border Protection (“CPB”), ICE, and USCIS, which are “to administer and enforce certain provisions of the Immigration and Nationality Act and all other laws relating to immigration.” 8 C.F.R. § 100.1.
[16] The Court refers to the APA here to establish how to characterize the cited immigration regulation and discusses Plaintiff’s APA claim infra Section III.B.2.
[17] As discussed previously with respect to mandamus, the Court does not address in depth
the other statutory and regulatory provisions that Plaintiff cites because Freedom Watch never
develops any argument that these provisions are the basis of DHS’s alleged mandate to
investigate, instead relying exclusively on 8 C.F.R. § 270.2 for this claim. But especially
because Defendant discusses each of these provisions,
see
Def.’s Mot. 21–24, it is nonetheless
worth noting why Plaintiff’s mere invocation of each of these provisions does not alter the
Court’s conclusions. Taking them briefly in turn, Plaintiff first invokes “INA 212(a)(6)(C)(i)” as
a provision that “can lead to a finding of fraud or willful misrepresentation.” Compl. ¶ 117.
This language is not only clearly permissive (“can lead”), but also does not connect up to the
cited regulation and thereby provide a source of law that clearly constrains DHS’s enforcement
discretion. Plaintiff then invokes a portion of the U.S. Department of Justice Criminal Resource
Manual that addresses “marriage fraud,” which states some of the conditions under which
marriage fraud has been prosecuted. Yet it does not provide any source of controlling law
regarding investigation decisions (and is neither a statute nor a regulation, nor does it clearly
control any action by DHS).
Id.
¶ 121. Next, Plaintiff mentions 8 U.S.C. § 1451(c) to support
its claim that “the available information” connecting Representative Omar to “overt and public
support for terrorism” provides prima facie evidence that she is subject to revocation of
naturalization аnd citizenship.
Id.
¶¶ 124–127. But this discussion involves the asserted
timeliness of any revocation action,
see id.
¶ 126, and not whether the choice is within the
agency’s discretion, let alone how it connects to an investigation. Plaintiff’s next reference to 8
U.S.C. § 1451(a) is similarly unavailing because Freedom Watch quotes text that refers to the
duty of “United States attorneys” to institute judicial proceedings upon receipt of an “affidavit
showing good cause,”
see id.
¶ 129, yet does not make any argument to illuminate how this
provision might provide “law to apply” that bears on DHS’s determination of what gives a
complaint a “substantial probability of validity” under 8 C.F.R. § 270.2 in the first instance.
Cf.
Clarke
,