The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Young America's Foundation ("YAF") seeks to compel the Secretary of Defense to terminate federal funding for the University of California, Santa Cruz ("UCSC"). YAF alleges that UCSC is in violation of the Solomon Amendment, 10 U.S.C. § 983, which provides that institutions of higher education must accommodate military recruiters by affording equal access to campuses and students as compared to any other employer. The penalty for failing to furnish such equal access is the forfeiture of certain federal funds. Notwithstanding UCSC's alleged non-compliance with the Solomon Amendment, YAF claims that the Secretary of Defense has unlawfully refused to perform his statutory duty to cut off UCSC's federal funding. Hence, YAF seeks to compel the Secretary to do precisely that. For his part, the Secretary has moved to dismiss the complaint, arguing that the Court lacks subject matter jurisdiction over this dispute and that YAF does not have standing to bring this lawsuit. That motion is now fully briefed and ripe for resolution. Upon careful consideration, and for the reasons identified below, the Court will grant the Secretary's motion to dismiss.
The underlying facts of this case are not seriously in dispute. In protest over the government's policy concerning homosexuals serving in the military, many institutions of higher education began either to restrict, or to eliminate altogether, the capacity of military officials to recruit students on campus to join the Armed Forces. See Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 51 (2006) (hereinafter "FAIR"). To combat those restrictive policies, Congress enacted the Solomon Amendment. That provision "specifies that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution [will] lose certain federal funds." Id. Specifically, the Solomon Amendment provides:
No funds . . . may be provided by contract or by grant to an institution of higher education (including any subelement of such institution) if the Secretary of Defense determines that the institution (or any subelement of that institution) has a policy or practice (regardless of when implemented) that either prohibits, or in effect prevents -- (1) the Secretary of a military department or Secretary of Homeland Security from gaining access to campuses, or access to students . . . on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.
See 10 U.S.C. § 983(b). As the Supreme Court put it, "[t]he Solomon Amendment gives universities a choice: Either allow military recruiters the same access to students afforded by any other recruiter or forgo certain federal funds." See FAIR, 547 U.S. at 58. The Department of Defense ("DOD") has published implementing regulations that, among other things, require the Secretaries of the Military Departments to "[i]dentify covered schools that, by policy or practice, deny military recruiting personnel entry to the campus(es) of those schools, access to their students, or access to student recruiting," see 32 C.F.R. § 216.5(b)(1), and to disseminate a list of all such schools to federal agencies to ensure that those ineligible institutions do not receive certain federal funds, see id. § 216.5(a)(1)(ii).
YAF is a "nonprofit organization committed to ensuring that young Americans understand and are inspired by the importance of a strong national defense." See Am. Compl. ¶ 3. The foundation has "approximately 209,094 students, alumni and supporters nationwide." Id. ¶ 4. Of greater significance to this case, YAF purports to have thirteen student members who are currently enrolled at UCSC.
According to YAF, UCSC -- a public university located in Santa Cruz, California --"received approximately $80 million in federal funds in 2005 and continues to receive tens of millions of dollars in federal funds annually." Id. ¶ 9. Beginning in April 2005, UCSC hosted a series of job fairs open to its student body. On April 5, 2005, for instance, the university held a job fair that included, among other employers, military recruiters from the U.S. Marine Corps. Id. ¶ 10. Those recruiters were met by "approximately 200 faculty and student protesters" who accosted the Marine Corps recruiters by "shouting, banging on windows, and demanding that the military recruiters leave campus." Id. After enduring these protests for nearly an hour, the "military recruiters vacated their posts and fled the job fair." Id. Notably, YAF maintains that at least one of its student members attended the April 5th job fair "seeking to meet with military recruiters," id. ¶ 13, but those hopes were thwarted by the actions of the protesters.
A similar occurrence took place on October 18, 2005. UCSC held another job fair on that date and the military recruiters who were present once again faced "[h]undreds of faculty and student protesters." Id. ¶ 15. Those protesters "marched and rallied . . . [and] were able to block access to military recruiters at the job fair." Id. YAF again insists that at least one of its student members also attended this job fair hoping to meet with military recruiters and was unable to do so. Id. ¶ 17. Finally, on April 11, 2006, UCSC hosted yet another job fair with recruiters from the U.S. Army and U.S. National Guard in attendance. Id. ¶ 19. Once again, the military recruiters met resistance from student and faculty protesters. On this occasion, the protesters succeeded in "block[ing] the entrance to the job fair for all students." Id. In response, the "military recruiters departed from the job fair due to the unsafe environment for them and UCSC students created by the protesters." Id. As before, YAF alleges that one of its student members had attended the April 11th job fair "seeking to meet with military recruiters," id. ¶ 21, but was unable to do so due to the protesters' activities.
On April 12, 2006, counsel for YAF wrote to then-Secretary of Defense Donald Rumsfeld "advising him of the failure of UCSC to provide access required by the Solomon Amendment . . . and urging [him] to withhold the applicable federal funds from UCSC for its violation of the Solomon Amendment." Id. ¶ 23. YAF never received a response to its letter. UCSC allegedly canceled a job fair scheduled for January 31, 2007 "due to safety concerns associated with UCSC protesters who planned to oppose the presence of military recruiters on the UCSC campus." Id. ¶ 24. Similarly, military recruiters from the U.S. Army and U.S. Marine Corps decided to withdraw from another job fair at UCSC scheduled for April 24, 2007. Id. ¶ 25. Military officials had learned that student government leaders had alerted the UCSC administration that a "large faculty and student protest was imminent due to the presence of military recruiters and that [the] protest would impair students' access to the job fair." Id. In response, the military recruiters decided to forgo attending the job fair altogether.
YAF contends that UCSC "has given tacit approval to the actions of its faculty and students because it has failed to prevent the disruptive and sometimes violent anti-military protests." Id. ¶ 27. Moreover, in YAF's view, UCSC has "done nothing to insure that military recruiters can safely attend on-campus job fairs . . . and it has done nothing to insure that military recruiters can meet with UCSC students attending UCSC job fairs." Id. Perhaps unbeknownst to YAF when it filed this lawsuit, however, UCSC in fact "has an established written policy permitting equal access to military recruiters." See Def.'s Renewed Mot. to Dismiss (hereinafter "Def.'s Mot.") at 8 (citing http://www.ucop.edu/raohome/cgmemos/94-09.html.). Notwithstanding that formal policy, however, YAF contends that UCSC has "a policy and/or practice that prohibits or, in effect, prevents military recruiters from gaining access to campus and/or access to students that is, at least, equal in quality and scope to the access UCSC provides to non-military employers." Am. Compl. ¶ 30. And that policy or practice, YAF maintains, renders UCSC in violation of the Solomon Amendment. YAF therefore seeks a writ of mandamus directing the Secretary of Defense to find that UCSC is not in compliance with the Solomon Amendment and, consequently, to terminate federal funding to the university. Alternatively, YAF seeks review under the APA, arguing that the Secretary's refusal to cut off federal funding to UCSC in the face of its supposedly patent violation of the Solomon Amendment constitutes agency action unreasonably delayed or withheld. Thus, YAF asks the Court to "compel agency action that [has been] unlawfully withheld or unreasonably delayed," pursuant to the APA. Id. ¶ 52.
Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court -- plaintiff here -- bears the burden of establishing that the court has jurisdiction. See US Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103-04 (1998)); see also Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) ("[A] Rule 12(b)(1) motion imposes on the court an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority."); Pitney Bowes, Inc. v. U.S. Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). Although a court must accept as true all the factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993), "'plaintiff[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." Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1990)). At the stage of litigation when dismissal is sought, a plaintiff's complaint must be construed liberally, and the plaintiff should receive the benefit of all favorable inferences that can be drawn from the alleged facts. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). Additionally, a court may consider material other than the allegations of the complaint in determining whether it has jurisdiction to hear the case, as long as it still accepts the factual allegations in the complaint as true. See Jerome Stevens Pharm. Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005); St. Francis Xavier Parochial Sch., 117 F.3d at 624-25 n.3; Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.1992); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987); Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986).
The Secretary's motion to dismiss is premised upon two distinct theories that he believes warrant dismissal in their own right. First, the Secretary argues that an agency's decision to undertake -- or not to undertake -- enforcement action under the Solomon Amendment is committed to agency discretion by law and, therefore, judicial review of that decision is unavailable. See 5 U.S.C. § 701(a)(2). Alternatively, the Secretary contends ...