United States District Court, District of Columbia
E. Boasberg, United States District Judge.
Statewide Bonding, Inc. is unhappy about the current state of
immigration bonds for released detainees. It believes that
the Department of Homeland Security and its component,
Immigration and Customs Enforcement, are improperly declaring
many of the bonds breached and seeking to collect the posted
money from the bonding companies. In a previously filed
action, Statewide, other similar companies, and a company
executive are seeking to block the Government from declaring
further bond breaches. Here, meanwhile, these same Plaintiffs
are suing to block the collection of the bonds
already in breach, asserting violations of the Administrative
Procedure Act and due process, as well as invoking a right to
mandamus. As the Court agrees with Defendants' positions
in their current Motion to Dismiss, it will grant the Motion.
Plaintiffs' initial suit, No. 18-2115, Statewide; Big
Marco Insurance and Bonding Services, LLC; Nexus Services,
Inc.; and Nexus executive Mike Donovan allege that the
Government is improperly declaring bonds breached when
released immigrants fail to appear for court. This is because
the Notices to Appear do not “provide the subject
immigrant with the time, place, and date where he or she is
to appear for immigration proceedings.” Statewide
Bonding, Inc. v. U.S. Dep't of Homeland Security,
No. 18-2115, ECF No. 32 (Second Am. Compl.) at 2. Plaintiffs
similarly believe that the Notices to Produce Alien, directed
to the bonding companies once an immigrant does not appear,
are procedurally flawed. Id. at 15-16. The merits of
those contentions are before this Court in that companion
Plaintiffs are pursuing a declaratory judgment there that, in
the future, the bonds should not be declared in breach, they
are simultaneously appealing within DHS the individual
determinations that past bonds were in fact breached. The
current case asks this Court to freeze collection on those
past bond breaches while Plaintiffs administratively appeal.
Although they concede that these appeals are untimely,
see ECF No. 14 (Am. Compl.) at 3, they contend that
the agency's regulations and constitutional due process
require the agency to halt collection while those appeals are
pending. Id. at 8-9. Plaintiffs urge that
Defendants' continuing collection activity entitles them
to a remedy under the APA and Due Process Clause and mandamus
relief. Id. at 11-16.
now move to dismiss under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6), arguing that Plaintiffs have not
stated a claim under either the APA or Due Process Clause and
that mandamus jurisdiction does not exist here. See
ECF No. 27 (Defendants' Motion to Dismiss) at 1-2.
evaluating Defendants' 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)); see also Jerome Stevens Pharms., Inc. v.
FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005). 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. See
Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006)
(quoting Papasan v. Allain, 478 U.S. 265, 286
Rule of Civil Procedure 12(b)(6) provides for the dismissal
of an action where a complaint fails “to state a claim
upon which relief can be granted.” Although
“detailed factual allegations” are not necessary
to withstand a Rule 12(b)(6) motion, “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 citation omitted). For a plaintiff to
survive a 12(b)(6) motion, the facts alleged in the complaint
“must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007).
standard to survive a motion to dismiss under Rule 12(b)(1)
is less forgiving. Under this Rule, a 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). A court also has
an “affirmative obligation to ensure that it is acting
within the scope of its jurisdictional authority.”
Grand Lodge of 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, Federal Practice and Procedure
§ 1350 (2d ed. 1987)).
first contend that Plaintiffs have not stated a claim under
the APA both because they are seeking to challenge non-final
agency action and because ICE has acted consistently with
agency regulations. See Def. MTD at 3, 6. In
addition, they maintain that Plaintiffs cannot state a
due-process claim because they were afforded constitutionally
adequate process, id. at 9, and that the Court lacks
subject-matter jurisdiction over the mandamus claim.
Id. at 12. The Court will take each of these issues
Court need not address the finality of agency action here
because Defendants' alternative position - namely, that
ICE is acting in compliance with agency regulations - is
sufficient to require dismissal of the APA claims. To begin,
Plaintiffs' only APA allegation seems to be that the
agency's action is inconsistent with its own regulations.
See Amend. Compl. at 10-13, 14-15. Although the
Amended Complaint is not a model of clarity in this regard,
examination of Plaintiffs' briefing also suggests as
much. See Pl. Opp. at 6-9 (citing relevant
regulations). In any event, the Court cannot discern any
other basis ...