The opinion of the court was delivered by: Paul L. Friedman United States District Judge
Plaintiffs Arden Wood, Inc., Tenacre Foundation, the Association of Organizations for Christian Science Nursing ("AOCSN"), and Shirley M. Bihag brought this action against defendants United States Citizenship and Immigration Services ("CIS"), Administrative Appeals Office ("AAO"), the United States Department of Homeland Security, and the United States Department of Justice seeking declaratory and injunctive relief for alleged violations of the Administrative Procedure Act and the First and Fifth Amendments to the United States Constitution. See Complaint ("Compl.") at 1-2. This matter is before the Court on defendants' motion to dismiss or for summary judgment and plaintiffs' motion for summary judgment.*fn1 The Court dismisses this action for lack of subject matter jurisdiction.
One of the tenets of the Christian Science religious denomination is the rejection of most conventional medicine and medical practices, in favor of a "radical reliance" on God and prayer for healing. See Compl. ¶ 19. Christian Science nursing facilities ("CSNFs") are establishments that provide care to sick individuals in accordance with the tenets of the religion. Plaintiff Arden Wood, a 501(c)(3) not-for-profit organization associated with the denomination, is one such facility. See id. ¶ 14. Plaintiff Tenacre Foundation is another; indeed, it is one of the three largest in the world. See id. ¶ 15. Plaintiff AOCSN is a non-profit association with 32 member facilities, the purpose of which "is to support Christian Science nursing and Christian Science nursing organizations." See id. ¶ 17.
CSNFs employ Christian Science nurses ("CSNs"), who are not nurses in the medical sense but provide "a spiritual ministry characterized by religious service in the context of spiritual healing." Compl. ¶ 19. Plaintiffs assert that it is crucial to the provision of care by CSNFs that they be able to employ foreign nationals as CSNs; such foreign nationals need visas in order to come to the United States to do this work. See Compl. ¶ 36. In 1990, Congress created new visa classifications for religious workers, R-1 nonimmigrant classifications (temporary) and I-360 special immigrant visas (allowing for permanent resident alien status). See 8 U.S.C. § 1101. One category of "employment-based immigrants" specifically provided for by the statute is "special immigrant religious workers." See 8 C.F.R. § 204.5(m). In addition to fulfilling other requirements, individuals applying for such visas must be sponsored by one of two kinds of organizations: a "bona fide nonprofit religious organization" or a "bona fide organization which is affiliated with the religious denomination." Id.
At issue in this case (according to plaintiffs) is the definition of these terms under the regulations, and the application of those definitions to visa applications. "Bona fide nonprofit religious organization in the United States" is defined as an organization exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to religious organizations, or one that has never sought such exemption but establishes to the satisfaction of the Service that it would be eligible therefor if it had applied for tax exempt status.
8 C.F.R. § 204.5(m)(2). "Bona fide organization which is affiliated with the religious denomination" is defined as: an organization which is closely associated with the religious denomination and which is exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to religious organizations.
Id. An applicant for a religious worker visa also "must have been performing the vocation, professional work, or other work continuously (either abroad or in the United States) for at least the two-year period immediately preceding the filing of the petition." 8 C.F.R. § 204.5(m)(1).
Since the creation of the immigrant and special immigrant classification in 1991, Arden Wood and other CSNFs have sponsored foreign nationals to serve as Christian Science nurses. See Compl. ¶¶ 35, 36. Plaintiffs allege that for purposes of visa applications, CSNFs have been considered "bona fide organizations affiliated with the religious denomination" of Christian Science. See id. ¶¶ 5, 57.
In 2002, Arden Wood filed petitions for I-360 special immigrant-religious worker visas as Christian Science nurses on behalf of Plaintiff Bihag and Linda Dewyanti (who is not a party to this case). See Compl. ¶ 46.*fn2 Defendant CIS' California Service Center denied Bihag's petition in May 2003, on the grounds that she had failed to provide documentation sufficient to demonstrate that Arden Wood was in fact a bona fide religious organization or organization affiliated with a religious denomination as defined in 8 C.F.R. § 204.5(m). See Compl. ¶¶ 54-55.*fn3 The Service Center stated that the documentation of tax-exempt status submitted with the petition, a letter by the IRS recognizing Arden Wood's tax-exempt status under 26 U.S.C. § 509(a)(1), failed to show that Arden Wood was tax-exempt under the provisions of 26 U.S.C. § 501(3)(c) "as it relates to religious organizations," as required by INA regulations. See id.; see also 8 C.F.R. § 204.5(m)(2), (m)(3)(i)(A). Dewyanti's petition was denied on identical grounds. See Compl. ¶¶ 54-55.
Petitioner appealed to the USCIS' Administrative Appeals Office ("AAO"), which denied the appeal in July 2004. See Compl. ¶ 56. Plaintiffs filed their complaint for declaratory and injunctive relief and a motion for preliminary injunction in this Court to force CIS to grant the petitions on February 22, 2005. Ms. Bihag filed a renewed I-360 petition in December 2004, which was approved on April 12, 2005. See Pls'. Mot. Leave to File Suppl. Ex. to its Rep. Mem. (May 27, 2005).
There was oral argument on the motion for a preliminary injunction before this Court on June 6, 2005, after which the Court denied the motion for a preliminary injunction. Plaintiffs filed an interlocutory appeal, and the D.C. Circuit affirmed the denial of the motion for a preliminary injunction on February 22, 2006. The parties then filed and briefed the motions now before the Court. Defendants move to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to state a claim upon which relief can be granted under Rule 12(b)(6), or for summary judgment under Rule 56. See Def. Mot. at 1. Defendants argue, among other things, that "because the petition of the sole individual plaintiff for a permanent visa has been granted, this case is moot and the plaintiff associations no longer have standing to contest the decision of the AAO or the propriety of the regulation." Id. Plaintiffs respond to this argument by asserting that "this case is not a direct appeal from any single AAO decision, but constitutes an original proceeding seeking (1) declaratory relief regarding the correct interpretation and application of the religious worker visa statute [and regulations], and (2) injunctive relief from a CIS ongoing 'policy.'" Pl. Mem. at 5.*fn4
Federal courts are courts of limited jurisdiction, with the ability only to hear cases entrusted to them by a grant of power contained in either the Constitution or in an act of Congress. See, e.g., Beethoven.com LLC v. Librarian of Congress, 394 F.3d 939, 945 (D.C. Cir. 2005); Hunter v. District of Columbia, 384 F.Supp.2d 257, 259 (D.D.C. 2005); Srour v. Barnes, 670 F. Supp. 18, 20, (D.D.C. 1987) (citing City of Kenosha v. Bruno, 412 U.S. 507, 511 (1973)). On a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff bears the burden of establishing that the Court has jurisdiction. See Brady Campaign to Prevent Gun Violence v. Ashcroft, 339 F. Supp. 2d 68, 72 (D.D.C. 2004). In considering whether to dismiss a complaint for lack of subject matter jurisdiction, the Court must accept all of the factual allegations in the complaint as true, but may in appropriate cases consider certain materials outside the pleadings. See Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005). "[W]here ...