United States District Court, District of Columbia
L. FRIEDMAN UNITED STATES DISTRICT JUDGE.
26, 2018, plaintiff Claudia Arely Molina de Ramirez filed a
civil complaint [Dkt. No. 1] challenging the Trump
Administration’s Zero-Tolerance Policy of separating
certain immigrant parents from their children at the United
States-Mexico border. See Complaint at 1. Ms.
Ramirez is a citizen of El Salvador and the mother of three
minor children who would like to seek asylum in the United
States; she and her children have not been separated under
the challenged Zero-Tolerance Policy. See id. at 9,
33. Defendants filed a motion to dismiss [Dkt. No. 13] on
September 14, 2018. Upon careful consideration of the briefs,
the relevant legal authorities, and the entire record in this
case, the Court will grant defendants’ motion to
dismiss. The Court concludes that Ms. Ramirez does
not have constitutional standing to challenge a policy under
which she has suffered no injury. Accordingly, the Court
lacks subject matter jurisdiction to resolve her claims.
April 6, 2018, the Attorney General of the United States
announced the Zero-Tolerance Policy, under which all
immigrant parents unlawfully crossing the United
States-Mexico border with their children would be subject to
criminal prosecution and forcibly separated from their
children. See Jacinto-Castanon de Nolasco v. U.S.
Immigration & Customs Enf’t, 319 F.Supp.3d
491, 494-95 (D.D.C. 2018). On June 20, 2018 – before
Ms. Ramirez filed the instant suit – President Trump
issued an Executive Order rescinding and clarifying several
aspects of the Zero-Tolerance Policy and stating the
government’s policy of housing parents and children
together, subject to certain limitations. See Exec.
Order No. 13, 841, 83 Fed. Reg. 29, 435 (June 20, 2018).
Ramirez filed suit to challenge the legality of the
Zero-Tolerance Policy and the conduct that defendants
undertook in applying it. But unlike plaintiffs in a number
of the other suits challenging the Trump
Administration’s Zero-Tolerance Policy, Ms. Ramirez has
not actually been separated from her children by the United
States government – under the challenged policy or
otherwise. Instead, Ms. Ramirez is already in the United
States, Response at 2; Reply at 2, and “she wishes to
return to El Salvador and bring her children back with her to
seek asylum in the United States.” Complaint at 34. Ms.
Ramirez reports that her three minor children attempted to
travel from El Salvador to the United States in 2016 –
well before the implementation of the challenged
Zero-Tolerance Policy – but were kidnapped in
Guatemala. See id. The children were rescued and
returned to El Salvador, where they remain. See id.
Ramirez now fears that if she brings her children to the
United States they will be separated from her,
“[b]ecause of the Trump Administration’s widely
reported child-separation policy . . . .” Complaint at
35. She argues that it is a “discriminatory policy
aimed at all persons from El Salvador, amongst other Central
American [c]ountries.” Id. at 36. Ms. Ramirez
therefore seeks a declaratory judgment (i) that the
Zero-Tolerance Policy violates her Fifth Amendment equal
protection rights (Count I), id. at 35-38; and (ii)
that the government acted arbitrarily and capriciously in
violation of the Administrative Procedure Act (Count II),
id. at 38-39.
defendants advance two grounds for dismissing this suit.
First, they move to dismiss under Rule 12(b)(1) of the
Federal Rules of Civil Procedure, arguing that this Court
lacks the subject matter jurisdiction to resolve this suit
because Ms. Ramirez has not established an actual or imminent
injury-in-fact that is sufficient to establish her
constitutional standing. Second, the government moves to
dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, arguing that Ms. Ramirez has failed to state a
claim for which relief can be granted with respect to either
her Fifth Amendment claim or her Administrative Procedure Act
25, 2019, this Court issued a Show Cause Order requiring Ms.
Ramirez to explain why her suit should not be dismissed for
lack of standing. See Show Cause Order, Dkt. No. 31,
at 1. Ms. Ramirez responded to the show cause order on July
9, 2019, claiming that she has pre-enforcement standing to
challenge the Zero-Tolerance Policy. See Show Cause
Response at 3 (citing Babbitt v. United Farm Workers
Nat’l Union, 442 U.S. 289, 298 (1979)).
Motions to Dismiss under Rule 12(b)(1) of the Federal Rules
of Civil Procedure
courts are courts of limited jurisdiction, possessing only
those powers authorized by the Constitution and an act of
Congress. See, e.g., Janko v.
Gates, 741 F.3d 136, 139 (D.C. Cir. 2014); Abulhawa
v. U.S. Dep’t of the Treasury, 239 F.Supp.3d 24,
30 (D.D.C. 2017). The plaintiffs bear the burden of
establishing that the Court has jurisdiction. See Walen
v. United States, 246 F.Supp.3d 449, 452 (D.D.C. 2017).
In determining whether to grant a motion to dismiss for lack
of subject matter jurisdiction, the Court must construe the
complaint in plaintiffs’ favor and treat all
well-pleaded factual allegations as true. See Attias v.
CareFirst, Inc., 865 F.3d 620, 627 (D.C. Cir. 2017).
Although the Court must grant plaintiffs the benefit of all
reasonable inferences, it “need not accept factual
inferences drawn by plaintiffs if those inferences are not
supported by facts alleged in the complaint, ” and the
Court need not accept plaintiffs’ legal conclusions.
Disner v. United States, 888 F.Supp.2d 83, 87
(D.D.C. 2012). Finally, in determining whether a plaintiff
has established jurisdiction, the Court may consider
materials beyond the pleadings where appropriate. Am.
Nat’l Ins. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir.
2011); Cumis Ins. Society Inc. v. Clark, 318
F.Supp.3d 199, 207 (D.D.C. 2018).
is one of the three “inter-related judicial
doctrines” that – along with the requirements of
mootness and ripeness – “ensure that federal
courts assert jurisdiction only over ‘Cases’ and
‘Controversies.’” Worth v.
Jackson, 451 F.3d 854, 855 (D.C. Cir. 2006) (quoting
U.S. Const. art. Ill. § 2). Standing is “one of
the essential prerequisites to jurisdiction under Article
III.” Fleming v. Cherokee Nation, 2019 WL
2327814, at *3 (D.D.C. May 31, 2019). The “irreducible
constitutional minimum of standing” contains three
elements, and “the party invoking federal jurisdiction
bears the burden of establishing” them. Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560-61 (1992).
Plaintiffs must establish (1) a concrete injury-in-fact
– the invasion of a legally protected interest –
that is particular to plaintiffs and that is actual or
imminent, as opposed to conjectural or hypothetical; (2) that
the injury is fairly traceable to the defendant’s
conduct – that is, a causal connection exists between
the injury and the defendants; and (3) that it is likely, and
not merely speculative, that a favorable decision on the
merits will redress plaintiff’s injury. See Lujan
v. Defs. of Wildlife, 504 U.S. at 560-61; see also
Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). As
with other motions to dismiss under Rule 12(b)(1),
“[t]hreadbare recitals of the elements of [standing],
supported by mere conclusory statements, do not suffice,
” and courts “do not assume the truth of legal
conclusions” nor “accept inferences that are
unsupported by facts set out in the complaint.”
Arpaio v. Obama, 797 F.3d at 19.
three components of standing, the requirement of a concrete
injury that is actual or imminent is of particular importance
to this case. “Although imminence is concededly a
somewhat elastic concept, it cannot be stretched beyond its
purpose, which is to ensure that the alleged injury is not
too speculative for Article III purposes.” Clapper
v. Amnesty Int’l USA., 568 U.S. 398, 409 (2013).
Therefore, when a plaintiff seeks to establish standing based
on projected future injury, she must “satisfy the
well-established requirement that the threatened injury [is]
‘certainly impending’” Id. at 401
(quoting Whitmore v. Arkansas, 495 U.S. 149, 158
(1990)). The possibility of injury – even
where an “objectively reasonable likelihood” of
injury exists – is insufficient for standing purposes.
Id. at 410. The “certainly impending”
requirement is unlikely to be satisfied by claims that depend
on a ...