United States District Court, District of Columbia
E. BOASBERG United States District Judge
much of this country's history, money bail offered
persons detained on criminal charges one of the only ways
they could obtain release. The Bail Reform Act of 1984
changed that for the federal system. Abolishing financial
bonds and replacing them with a system of monitored release,
the Act changed the architecture of pretrial detention. For
all the reforms it enacted, however, it did not completely
disentangle the federal government from money bail. This case
involves one area in which such bonds persist: the release of
certain non-citizens pending immigration proceedings.
Plaintiffs here are several companies and an individual
involved in issuing bail bonds to persons in immigration
detention. In their Complaint, they contend that the
Department of Homeland Security is engaging in a host of
unlawful practices with respect to those bonds. These are
serious allegations that may well be worthy of judicial
consideration. But not today. As the Court cannot discern
from the pleadings what precise practices Plaintiffs take
issue with, what legal claims derive therefrom, and how these
Plaintiffs are harmed, it is bound to dismiss the Complaint
for lack of standing. Plaintiffs may amend, however, if,
through clearer allegations, they can demonstrate that
subject-matter jurisdiction does exist here.
one of several lawsuits Plaintiffs have filed in this Court
seeking relief from Defendant DHS's immigration-bond
practices. Two of the Plaintiffs - Statewide Bonding, Inc.
and Big Marco Insurance and Bonding Services, LLC - are
“bonding compan[ies] that issue criminal and
immigration bonds throughout the United States.” ECF
No. 8 (Amended Complaint), ¶¶ 14-15. The others are
Nexus Services, Inc., a business that helps immigrants obtain
release from detention by guaranteeing their bonds, and Mike
Donovan, Nexus's President and CEO. (For ease of
reference, and unless distinguishing among Plaintiffs, the
Court will refer to them collectively as
filed this suit against DHS and Immigration and Customs
Enforcement back in September 2018, requesting monetary,
declaratory, and injunctive relief for violations of the
Administrative Procedure Act and the Due Process Clause and
for breach of contract. See ECF No. 1 (Complaint) at
2-3. Soon after, Plaintiffs sought emergency relief in the
form of a temporary restraining order. See ECF No. 4
(Motion for TRO). Concluding that they had not shown that
they would suffer irreparable harm absent judicial
intervention and expressing doubts about its jurisdictional
basis, the Court denied the application. See Minute
Order 10/5/2018. On October 16, Statewide filed an Amended
Complaint seeking only declaratory and injunctive relief.
See Amended Compl., ¶¶ 57-60. The precise
facts and claims raised therein are somewhat difficult to
divine - a concern to which the Court will soon return.
Accepting the factual allegations as true, see Hurd v.
District of Columbia, 864 F.3d 671, 678 (D.C. Cir.
2017), the following is nonetheless the best the Court can
glean about Plaintiffs' case.
dispute centers on DHS's immigration-bond practices.
Certain persons in immigration custody - presumably those
detained pursuant to 8 U.S.C. § 1226(a) - may be
released on bond pending further proceedings. See 8
C.F.R. §§ 103.6, 236.1(c)(8). Many obtain bond with
the help of companies like Statewide and Big Marco, perhaps
with additional support from Nexus, although that is unclear.
See Amended Compl., ¶ 16. Upon release from
custody, they are supposed to receive “Notices to
Appear” (NTAs) - documents containing information about
the nature of their immigration proceedings and the time and
place those proceedings will be held. See 8 U.S.C.
§ 1229(a). But DHS often issues NTAs without the time,
place, or date of the next proceeding. See Amended
Compl., ¶ 38. In addition, copies of the NTAs are not
sent to the entities responsible for procuring the
non-citizens' release and return - viz., the
bond companies and Nexus, as the bonds' guarantor.
Id., ¶ 39. These practices make it less likely
that immigrants released on bond will attend their subsequent
hearings, thereby increasing the likelihood that bonds will
be breached. Id., ¶¶ 40, 45-47.
matters, Statewide says, are the Government's abbreviated
follow-up efforts after a bond is breached. In that event,
DHS sends the bonding company a “Notice to Produce
Alien” (NPA) - a document directing it to ensure the
non-citizen's attendance at a hearing. Id.,
¶¶ 48-50. Yet the NPAs allegedly give Plaintiffs
less than ten days to track down persons who have missed the
hearings, which they maintain is insufficient. Id.,
¶ 52. Those practices, not surprisingly, thus lead to a
substantial number of uncured bond breaches.
the Complaint gets more confusing is in its articulated
causes of action, which are differentiated by form of relief
rather than, as is appropriate, the substantive legal claim.
Each count, in fact, conflates different claims under one
heading. The first, for example, seeks “Declaratory
Relief for violation of the Administrative Procedure Act .
. . by disregarding the requirements of, inter alia,
8 U.S.C. § 1229 and for violation of Procedural and
Substantive Due Process Rights protected by the Due Process
Clause 5th Amendment of the U.S. Constitution.”
Id. at 18. The second seeks “Injunctive Relief
for violation of the Administrative Procedure Act . . . as
well as Procedural and Substantive Due Process Rights.”
Id. at 19. In support of these claims, Statewide
points to DHS's practice of issuing NTAs without a
“time, date and place regarding immigrant court
appearance” and sending NPAs with an “inadequate
amount of time to produce an alien.” Id.,
filing the Amended Complaint, Plaintiffs filed a Motion for
Declaratory Judgment and Permanent Injunctive Relief.
See ECF No. 10. In addition to opposing that Motion,
the Government has filed Motions to Dismiss for Lack of
Jurisdiction under Rule 12(b)(1) and for More Definite
Statement under Rule 12(e). See ECF No. 22 (MTD).
Court does not ultimately evaluate Plaintiffs' Motion, it
sets out the standards only for those brought by Defendants.
In analyzing their Motion to Dismiss, the Court must
“treat the complaint's factual allegations as true
. . . and must grant plaintiff ‘the benefit of all
inferences that can be derived from the facts
alleged.'” Sparrow v. United Air Lines,
Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting
Schuler v. United States, 617 F.2d 605, 608 (D.C.
Cir. 1979)) (internal citation omitted). The Court need not
accept as true, however, “a legal conclusion couched as
a factual allegation, ” nor an inference unsupported by
the facts set forth in the complaint. Trudeau v.
FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)
(internal quotation marks omitted)).
survive a motion to dismiss under Rule 12(b)(1), the
plaintiff bears the burden of proving that the Court has
subject-matter jurisdiction to hear its claims. See Lujan
v. Defenders of Wildlife, 504 U.S. 555, 561
(1992); US Ecology, Inc. v. U.S. Dep't of
Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). A court has
an “affirmative obligation to ensure that it is acting
within the scope of its jurisdictional authority.”
Grand Lodge of the Fraternal Order of Police v.
Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001). For this
reason, “‘the [p]laintiff'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.”
Id. at 13-14 (quoting 5A Charles A. Wright &
Arthur R. Miller, Fed. Practice & Procedure
§ 1350 (2d ed. 1987)) (alteration in original).
12(e) permits a defendant to move for a more definite
statement if “a pleading . . . is so vague or ambiguous
that the party cannot reasonably prepare a response.”
“[W]hen a defendant is unclear about the meaning of a
particular allegation in the complaint, the proper course of
action is not to move to dismiss but to move for a more
definite statement.” Hilska v. Jones, 217
F.R.D. 16, 21 (D.D.C. 2003) (quoting Am. Nurses'
Ass'n v. Illinois, 783 F.2d 716, 725 (7th Cir.