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Mobarez v. Kerry

United States District Court, District of Columbia

May 17, 2016

NORA ALI MOBAREZ, et al. Plaintiffs,
v.
JOHN KERRY, Secretary, United States Department of State, in his official capacity, and ASHTON CARTER, Secretary, United States Department of Defense, in his official capacity. Defendants.

          MEMORANDUM OPINION

          KETANJI BROWN JACKSON United States District Judge

         Plaintiff Nora Ali Mobarez, a United States citizen, is currently residing in the war-torn and conflict-ridden Republic of Yemen. (See Compl., ECF No. 2, ¶¶ 4, 55-59.) Mobarez has joined with 25 other people, all of whom are U.S. citizens or permanent residents with Yemeni connections, to file the instant official-capacity complaint against the Secretary of the Department of State ("State") and the Secretary of the Department of Defense ("DOD" and, collectively, "Defendants"). These plaintiffs seek a court order to compel Defendants to comply with an alleged duty of the Executive Branch to provide a means of evacuation from Yemen for them or their relatives. (See Id. ¶¶ 3-24, 29-77.) Specifically, their complaint asserts that the United States has closed its embassy in Sana’a, Yemen, has evacuated embassy staff, and has removed Marines from the country, but that the U.S. government has yet to execute any plan to secure the safe removal of private American citizens. (See Id. ¶¶ 34-36, 77.) According to Plaintiffs, Defendants’ forbearance violates the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-06, insofar as Defendants “have failed to provide through direct military assistance or contracting with commercial entities the necessary equipment, ships, airplanes, and other items that are available to Defendants to [e]nsure the security, safety, and well-being of United States citizens[, ]” and have therefore “unlawfully withheld and/or unreasonably delayed agency action to which the Plaintiffs are entitled” and/or “have taken action that is arbitrary and capricious and an abuse of discretion and not in accordance with law[.]” (Id. ¶ 81.)

         Before this Court at present is Defendants’ Motion to Dismiss the instant complaint. (See Defs.’ Mot. to Dismiss (“Defs.’ Mot.”), ECF No. 8.) Defendants contend that Plaintiffs are wrong about the existence of any duty to evacuate them. (See Defs.’ Reply in Supp. of Defs.’ Mot. (“Reply”), ECF No. 12, at 6-8.)[1] Furthermore, as a threshold matter, Defendants insist that legal claims such as the ones Plaintiffs bring here require the judiciary to second-guess the discretionary foreign-policy decisions of the Executive Branch, and thus, are nonjusticiable under the political-question doctrine. (See Defs.’ Mem. in Supp. of Defs.’ Mot. (“Defs.’ Mem.”), ECF No. 8-1, at 12-14.)

         On March 31, 2016, this Court issued an order GRANTING Defendants’ Motion to Dismiss Plaintiffs’ complaint. (See Order, ECF No. 13.) The instant Memorandum Opinion explains the Court’s reasons for that order. In short, the Court agrees with Defendants’ justiciability argument, and has therefore concluded that it lacks jurisdiction to entertain Plaintiffs’ complaint.

         I. BACKGROUND

         A. Factual Allegations

         Plaintiffs make several alarming allegations regarding the state of civil unrest in Yemen and Defendants’ alleged failure to provide for the evacuation of American citizens and residents. For example, according to the complaint, an “ongoing conflict” in Yemen has led to widespread chaos and danger for the inhabitants of that country (Compl. ¶¶ 29, 39-51), and “United States citizens are being subjected to trauma, both physical and mental [, given that] many have witnessed fellow family members or relatives being killed or seriously injured” (id. ¶ 64). In addition, Plaintiffs assert that the United States government “had notice and/or knowledge of the imminent military action, armed conflict, and civil war in Yemen” as of January 2015, and that it has not only evacuated its embassy staff, it also required the U.S. ambassador and Marines to leave the country by February 11, 2015. (Id. ¶¶ 32-37.) Plaintiffs contend that the violence in Yemen-which allegedly has included a suicide bombing at a mosque that killed 137 people on March 20, 2015 (see Id. ¶ 38)-escalated to a full-on war in late March of 2015, when ten separate countries “conducted air strikes” in that country (id. ¶ 39). And circumstances have only worsened over time; according to Plaintiffs, the United Nations and World Health Organization reported over 500 deaths between the conflict’s escalation in late March of 2015 and April 6, 2015. (See Id. ¶¶ 48, 51.)

         Most importantly for present purposes, Plaintiffs say that the U.S. government has already publicly acknowledged the danger to U.S. citizens in Yemen. On the same day the embassy staff left that country, the Department of State allegedly “issued a travel warning on the Department of State website” (id. ¶ 37); however, according to Plaintiffs, that same statement also specifically asserted that the United States government has “no plans to evacuate United States citizens from Yemen” (id.). Indeed, Plaintiffs allege that, notwithstanding the grave danger to American citizens, State and DOD have “not provided any evacuation efforts to non-Embassy staff and/or United States Citizens in Yemen.” (Id. ¶ 52.) And Plaintiffs maintain that no such efforts are forthcoming: although a Pentagon spokesperson has purportedly remarked “that the United States has ‘assets in place’ to evacuate Americans” (id. ¶ 72 (citation omitted)), a State Department spokeswoman has also addressed the matter, and, according to Plaintiffs, has stated unequivocally that there are “‘no plans for U.S. assets to be used’ for evacuations” (id. ¶ 77 (citation omitted)).

         B. Procedural History

         On April 9, 2015, Plaintiffs filed the instant two-count complaint in this Court. Count One asserts that Defendants violated the APA by “fail[ing] to provide through direct military assistance or contracting with commercial entities the necessary equipment, ships, airplanes, and other items that are available to Defendants to [e]nsure the security, safety, and well-being of United States citizens.” (Id. ¶ 81.) This failure, Plaintiffs charge, has “unlawfully deprived” them “of a swift, accommodating, and reasonable evacuation from Yemen.” (Id. ¶ 82.) Count Two, which essentially duplicates Count One, is entitled “Injunctive Relief” and states that “Defendants must be compelled to evacuate United State[s] Citizens in Yemen.” (Id. ¶ 93.)[2]

         On June 15, 2015, Defendants filed their motion to dismiss Plaintiffs’ complaint. (See generally Defs.’ Mot.) In the motion, Defendants assert two independent grounds for dismissal: (1) that Plaintiffs’ claims are nonjusticiable under the political-question doctrine; and (2) that, even if the claims can be decided by a federal court, Plaintiffs fail to state a claim under the APA because the only potentially applicable statutory and administrative provisions commit the evacuation decision to agency discretion, and in any event, there is no final agency action. (See Defs.’ Mem. at 12-22.) In their opposition brief, Plaintiffs respond that the Executive Branch does, in fact, have a non-discretionary statutory and regulatory duty to evacuate American citizens in harm’s way such that the political-question doctrine is inapplicable. (See Pls.’ Opp’n to Defs.’ Mot. (“Pls.’ Opp’n”), ECF No. 11, at 4-7, 13-14.)

         Defendants’ motion to dismiss became ripe for decision on September 18, 2015, after Defendants filed their reply (see generally Reply); and, as mentioned, this Court granted the motion on March 31, 2016.

         II. MOTIONS TO DISMISS UNDER RULE 12

         The D.C. Circuit has consistently treated the political-question doctrine as bearing on subject-matter jurisdiction. See Hourani v. Mirtchev, 796 F.3d 1, 8 (D.C. Cir. 2015); Lin v. United States, 561 F.3d 502, 504 (D.C. Cir. 2009). Thus, although Defendants here have invoked Federal Rule of Civil Procedure 12 generally (without specifying a subsection) in support of their motion to dismiss, this Court construes Defendants’ political-question arguments as proceeding under Rule 12(b)(1).

         When a motion to dismiss a complaint under Rule 12(b)(1) is filed, a federal court is required to ensure that it has “the ‘statutory or constitutional power to adjudicate [the] case[.]’” Morrow v. United States, 723 F.Supp.2d 71, 77 (D.D.C. 2010) (emphasis omitted) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)). As always, the burden of showing that subject-matter jurisdiction exists is borne by the plaintiff. See Delta Air Lines, Inc. v. Export-Import Bank of U.S., 85 F.Supp.3d 250, 259 (D.D.C. 2015) (citing, inter alia, Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). And if subject-matter jurisdiction is lacking, the court “must dismiss the complaint in its entirety.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (citation omitted). Notably, in evaluating whether or not there is subject-matter jurisdiction with respect to a plaintiff’s case, the court will “treat the complaint’s factual allegations as true” and afford the plaintiff “the benefit of all inferences that can be derived from the facts alleged.” Delta Air Lines, 85 F.Supp.3d at 259 (internal quotation marks and citation omitted). However, those factual allegations receive “closer scrutiny” than they would in the Rule 12(b)(6) context. Id. (internal quotation marks and citations omitted). Moreover, when necessary, a court resolving a Rule 12(b)(1) motion “may consider materials outside the pleadings[.]” Id. (internal quotation marks and citations omitted).

         Because Defendants here have also asserted that the complaint should be dismissed on the grounds that Plaintiffs fail to state a claim under the APA, the pending motion to dismiss also implicates Rule 12(b)(6). See Fed. R. Civ. P. 12(b)(6). A motion under that rule demands that the court look only at the allegations of the complaint to determine whether it contains “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Harris v. Dist. of Columbia Water & Sewer Auth., 791 F.3d 65, 68 (D.C. Cir. 2015) (internal quotation marks omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “But the tenet that a court must accept as true all of the [factual] allegations contained in a complaint is inapplicable to legal conclusions.” Id. (internal quotation marks omitted) (quoting Iqbal, 556 U.S. at 678). Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (alteration in original) (internal quotation marks and citation omitted). And unlike Rule 12(b)(1), Rule 12(b)(6) ‚Äúplaces th[e] burden on the ...


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