United States District Court, District of Columbia
S. CHUTKAN UNITED STATES DISTRICT JUDGE
of Yemen and Iran-allege that Defendants unlawfully failed to
process their diversity immigrant visa applications based on
President Trump's March 6, 2017 Executive Order. ECF No.
46 (Am. Compl.). Defendants now move to dismiss
Plaintiffs' Amended Complaint under Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction
and Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim upon which relief can be granted. ECF No. 53
(Mot.). For the reasons explained below, the court will GRANT
Defendants' motion to dismiss for lack of subject matter
facts of this case are set forth in more detail in the
court's September 29, 2017 Memorandum Opinion regarding
Plaintiffs' motion for a preliminary injunction. ECF No.
49 (Mem. Op.) at 1-7. On March 6, 2017, President Trump
issued Executive Order 13, 780 (“Executive
Order”), which imposed, in section 2(c), a 90-day
suspension on entry into the United States for nationals of
six countries-Iran, Libya, Somalia, Sudan, Syria, and Yemen.
the Nation from Foreign Terrorist Entry into the United
States, Exec. Order No. 13780, 82 Fed. Reg. 13209, 13213
(2017). By the end of March 2017, section 2(c) of the
Executive Order was enjoined, and two U.S. Courts of
Appeals-the Fourth and Ninth Circuits-largely upheld both
injunctions. See Int'l Refugee Assistance Project
(IRAP) v. Trump, 857 F.3d 554 (4th Cir. 2017), cert.
granted, 137 S.Ct. 2080 (2017), and vacated and
remanded sub nom. Trump v. IRAP, 138 S.Ct. 353 (2017);
Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017),
cert. granted sub nom. Trump v. IRAP, 137 S.Ct. 2080
(2017), and cert. granted, judgment vacated, 138
S.Ct. 377 (2017), and vacated, 874 F.3d 1112 (9th
Cir. 2017). On June 26, 2017, the U.S. Supreme Court granted
a stay in part of the injunctions “with respect to
foreign nationals who lack any bona fide relationship with a
person or entity in the United States.” Trump,
137 S.Ct. at 2087. In light of the Executive Order and the
Supreme Court's stay, the State Department issued a cable
advising consular officers to refuse diversity visas to
applicants who were not exempt from the Executive Order's
suspension of entry provision and who did not qualify for a
waiver. ECF No. 2-2 (State Department Cable) at 3.
August 3, 2017, Plaintiffs filed a Petition for Mandamus and
Complaint for Injunctive and Declaratory Relief, as well as a
Motion for Preliminary Injunction, in which they argued that
the State Department's cable unlawfully applied President
Trump's Executive Order to diversity immigrant visa
applicants for fiscal year 2017 (“FY 2017”). In
the operative complaint, Plaintiffs allege that: (1) the
State Department's practice of requiring diversity visa
applicants to provide documentation evidencing a bona fide
relationship with the United States was arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; and that (2) in applying the policy,
consular officers violated their clear, non-discretionary
duty to issue diversity visas to applicants who are
statutorily eligible. Am. Compl. at 15-17.
their Motion for Preliminary Injunction, Plaintiffs asked the
court to issue an order: (1) enjoining the State Department
from implementing the policy set forth in its cable; and (2)
requiring consular officers to process Plaintiffs'
applications pursuant to the Immigration and Nationality Act.
ECF No. 2 (Injunction Mot.) at 10. Plaintiffs subsequently
sought additional relief, requesting that this court order
the State Department to: (1) process the diversity visas of,
and/or issue diversity visas to, eligible applicants who had
previously been refused pursuant to the Executive Order under
the program for FY 2017, even in excess of the statutory cap
and/or past the statutory deadline; or (2) issue diversity
visas to eligible 2017 applicants who had been refused
pursuant to the Executive Order under the program for fiscal
year 2018. ECF No. 43 at 3-4. Alternatively, Plaintiffs asked
the court to order the State Department to “reserve any
unused visa numbers until after the [Supreme Court's
decision]” regarding the legality of the Executive
Order. ECF No. 45 at 5.
September 29, 2017, the court granted in part and denied in
part Plaintiffs' motion for a preliminary injunction and
emergency mandamus relief. ECF No. 50 (Order, Sept. 29,
2017); Mem. Op. at 17. After reviewing the Fourth and Ninth
Circuits' decisions in IRAP and Hawaii,
the court found that the Supreme Court's June 26 decision
permitting the Executive Order's execution with respect
to individuals without a bona fide relationship with the
United States applied not only to entry into the U.S., but to
visa issuance as well. Mem. Op. at 8-11. Given the Supreme
Court's June 26 decision and the Court's continuing
jurisdiction to consider the legality of the Executive
Order-including with respect to visa issuance-the court found
that it was precluded from finding the State Department's
policy illegal and from ordering the State Department to
process and issue visas. Id. However, the court did
invoke its mandamus jurisdiction to grant Plaintiffs'
alternative relief, and ordered the Defendants to: (1)
report, by October 15, the number of visa numbers returned
unused for FY 2017; and (2) hold those visa numbers to
process Plaintiffs' visa applications in the event the
Supreme Court found the Executive Order to be unlawful.
Order, Sept. 29, 2017; Mem. Op. at 15. On October 15, 2017,
the State Department complied with part of the court's
order, reporting that 27, 241 diversity visa numbers were
returned unused and that 49, 976 diversity visas were issued
for FY 2017. ECF No. 52 at 1.
days earlier, on October 10, 2017, the Supreme Court found
that because section 2(c) of the Executive Order expired by
its own terms on September 24, 2017, the appeal in
IRAP no longer presented a live case or controversy.
Trump v. IRAP, 138 S.Ct. 353, 353 (2017).
Accordingly, the Court vacated the Fourth Circuit's
judgment enjoining section 2(c) of the Executive Order, and
remanded the case to the Circuit “with instructions to
dismiss as moot the challenge to Executive Order No. 13,
780.” Id. Fourteen days later, on October 24,
2017, the Supreme Court dismissed the appeal in
Hawaii based on the same reasoning and with the same
instructions it provided in IRAP. Trump v.
Hawaii, 138 S.Ct. 377, 377 (2017).
to Federal Rule of Civil Procedure 12(b)(1), a defendant may
move to dismiss a complaint for lack of subject matter
jurisdiction. The law presumes that “a cause lies
outside [a federal court's] limited jurisdiction”
unless the party asserting jurisdiction establishes
otherwise. Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994); see also Georgiades
v. Martin-Trigona, 729 F.2d 831, 833, n.4 (D.C. Cir.
1984) (“It is the burden of the party claiming subject
matter jurisdiction to demonstrate that it exists.”).
In evaluating a motion to dismiss under Rule 12(b)(1), a
court must assume the truth of all factual allegations and
must review “‘the complaint liberally, granting
plaintiff the benefit of all inferences that can be derived
from the facts alleged.'” Am. Nat'l Ins.
Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011)
(quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C.
Cir. 2005)). Nevertheless, “‘the court need not
accept factual inferences drawn by plaintiffs if those
inferences are not supported by facts alleged in the
complaint, nor must the [c]ourt accept plaintiff's legal
conclusions.'” Disner v. United States,
888 F.Supp.2d 83, 87 (D.D.C. 2012) (quoting Speelman v.
United States, 461 F.Supp.2d 71, 73 (D.D.C. 2006)).
Additionally, a court “may consider materials outside
the pleadings in deciding whether to grant a motion to
dismiss for lack of jurisdiction.” Jerome Stevens
Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249,
1253 (D.C. Cir. 2005) (citation omitted). Finally, a
“‘court may appropriately dispose of a case under
12(b)(1) on mootness grounds.” Mykonos v. United
States, 59 F.Supp.3d 100, 103-04 (D.D.C. 2014) (citing
Comm. in Solidarity with the People of El Sal. v.
Sessions, 929 F.2d 742, 744 (D.C. Cir. 1991)).
12(b)(6) permits a party to move for dismissal on the grounds
that the complaint has failed “to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A
Rule 12(b)(6) motion “tests the legal sufficiency of a
complaint.” Browning v. Clinton, 292 F.3d 235,
242 (D.C. Cir. 2002). To withstand a motion to dismiss under
Rule 12(b)(6), “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, 556 U.S. 662, 678 (2009) (internal quotation
marks and citation omitted). A claim is facially plausible
“when the plaintiff pleads factual content that allows