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Abdo v. Tillerson

United States District Court, D. Maryland

April 30, 2019

ALAIN ABDO, et al., Plaintiffs,
MICHAEL R. POMPEO, et al., Defendants.


          George L. Russell, III United States District Judge

         THIS MATTER is before the Court on Plaintiffs Alain Abdo, M.D., Maha Akiki, and J.A.'s Motion to Alter Judgment to Consider and Adjudicate Counts II-IX of the Plaintiffs' Complaint (ECF No. 16). The Motion is ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2018). For the reasons outlined below, the Court granted the Motion. (Mar. 28, 2019 Order, ECF No. 23).

         I. BACKGROUND [1]

         On June 9, 2010, Dr. Abdo entered the United States as a nonimmigrant alien exchange visitor on a J-1 visa under 8 U.S.C. § 1101(a)(15)(J)[2] for graduate education sponsored by the Educational Commission for Foreign Medical Graduates (“ECFMG”). (Compl. ¶¶ 25-26, ECF No. 1). Dr. Abdo and Akiki married in 2012. (Id. ¶ 28). Akiki entered the United States with a J-2 nonimmigrant exchange visitor visa as a result of Abdo's J-1 visa. (Id. ¶ 85). Akiki gave birth to a daughter, M.A., in 2013, [3] and a son, J.A., in 2015, in the United States. (Id. ¶¶ 28-30).

         Under 8 U.S.C. § 1182(e), an exchange student such as Dr. Abdo must return to his home country for at least two years after finishing his training. Section 1182(e) permits waivers of the two-year foreign residency requirement under certain limited circumstances, including “upon the favorable recommendation” of the United States Department of State (“DoS”) and a request by a Director of the United States Citizenship and Immigration Services (“USCIS”). 8 U.S.C. § 1182(e).

         On April 14, 2016, Dr. Abdo submitted an application to USCIS for an exceptional hardship waiver of the two-year foreign residency requirement. (Compl. ¶ 41). In his application, Dr. Abdo asserted that returning to Lebanon, his home country, for two years would cause an exceptional hardship for his children, who were American citizens. (Id. ¶¶ 43-45). In a letter sent to USCIS on February 27, 2017, the DoS recommended that USCIS deny the application because “[t]here's a need for trained medical professionals in General Surgery” in Lebanon “as evidenced by the Letter of Need” from its government. (Defs.' Mot. Dismiss [“Defs.' Mot.”] Ex. B, ECF No. 10-3). Accordingly, USCIS denied Dr. Abdo's application on February 27, 2017. (See Compl. ¶ 102; Defs.' Mot. Ex. B).

         On April 17, 2017, Plaintiffs filed their nine-count Complaint, alleging: the denial of Dr. Abdo's waiver application was arbitrary and capricious in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 500 et seq. (2018) (Count I); the DoS and USCIS regulations that subject J-2 visa holders to the two-year residence requirement violated 5 U.S.C. § 553 when promulgated and are inconsistent with 8 U.S.C. § 1182(e) (Count II); violations of the Due Process Clause of the Fifth Amendment to the United States Constitution (Counts III-V); Failure to Follow More Relaxed Adjudication Standard Intended by Congress (Count VI); Failure to Provide Reasoned Analysis Describing a Marked Change in Policy in the Adjudication of ECFMG-Sponsored I-612 Hardship Waiver Cases (Count VII); Violation of Treaty (Count VIII); and Declaratory Judgment (Count IX). (Compl. ¶¶ 101-160). Plaintiffs seek declaratory judgments, injunctive relief, and attorneys' fees and costs. (Id. at 31-32).

         On August 28, 2017, Defendants filed a Motion to Dismiss, arguing for dismissal under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction or, alternatively, for failure to state a claim under Rule 12(b)(6). (ECF No. 10). On March 30, 2018, the Court granted the Motion, concluding that it did not have subject-matter jurisdiction to consider Defendants' decision to deny Dr. Abdo's exceptional hardship waiver application, and directed the Clerk to close the case. (Mar. 30, 2018 Mem. & Order at 3, ECF No. 15).

         On April 25, 2018, Plaintiffs filed their Motion to Alter Judgment to Consider and Adjudicate Counts II-IX of the Plaintiff's Complaint. (ECF No. 16). On June 18, Defendants filed an Opposition. (ECF No. 21). On June 27, 2018, Plaintiffs filed a Reply. (ECF No. 22).


         A. Motion to Alter Judgment

         1. Standard of Review

         Rules 59(e) and 60(b) govern motions to reconsider final judgments. See Fayetteville Inv'rs v. Commercial Builders, Inc., 936 F.2d 1462, 1469 (4th Cir. 1991). Rule 59(e) controls when a party files a motion to alter or amend within twenty-eight days of the final judgment. Bolden v. McCabe, Weisberg & Conway, LLC, No. DKC 13-1265, 2014 WL 994066, at *1 n.1 (D.Md. Mar. 13, 2014). If the Motion is filed later, Rule 60(b) controls. Id. Plaintiffs filed their Motion twenty-six days after the Court's March 30, 2018 Memorandum and Order. Accordingly, Rule 59(e) controls here.

         A district court may only alter or amend a final judgment under Rule 59(e) in three circumstances: “(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” United States ex rel. Carter v. Halliburton Co., 866 F.3d 199, 210 (4th Cir. 2017) (citing Zinkand v. Brown, 478 F.3d 634, 637 (4th Cir. 2007)). The purpose of Rule 59(e) is to “permit[ ] a district court to correct its own errors, ‘sparing the parties and the appellate courts the burden of unnecessary appellate proceedings.'” Pac. Ins. Co. v. Am. Nat. Fire Ins. Co., 148 F.3d 196, 403 (4th Cir. 1998) (citing Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995)).

         2. Analysis

         Plaintiffs argue that the Court's conclusion regarding its lack of jurisdiction to hear Count I does not have any effect on the Court's jurisdiction over the remaining counts. As a result, Plaintiffs assert, the Court should not have dismissed Counts II-IX. Defendants counter that because the Court concluded that it did not have jurisdiction to hear Count I, it was correct in dismissing the Complaint in its entirety. The Court agrees with Plaintiffs.

         In its March 30, 2018 Memorandum and Order, the Court concluded that 5 U.S.C. § 702(a)(2) foreclosed judicial review of Count I-Defendants' decision to deny Dr. Abdo's exceptional hardship waiver application. (Mar. 30, 2018 Mem. at 3).[4] Because the Court lacked subject-matter jurisdiction over Count I, it granted Defendants' Motion to Dismiss as to the remaining counts without considering them on the merits. (Id.). That conclusion was erroneous because the Court must determine whether it has subject-matter jurisdiction on a claim-by-claim basis. See Jones v. Calvert Grp., Ltd., 551 F.3d 297, 305 (4th Cir. 2009) (remanding certain claims for dismissal for lack of subject-matter jurisdiction but remanding remaining claim for further proceedings); see also Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006) (noting that “[i]t is well established that before a federal court can decide the merits of a claim, the claim must invoke the jurisdiction of the court” (emphasis added)); United States ex rel. Wilson v. Graham Cty. Soil & Water Conservation Dist., 528 F.3d 292, 309 (4th Cir. 2008) (citing Boothe v. Sun Healthcare Grp., Inc., 496 F.3d 1169, 1177 (10th Cir. 2007)) (“The district court's analysis should thus proceed on a claim-by-claim basis, individually addressing [each claim] and explaining whether the court has jurisdiction over that claim”), rev'd on other grounds by Graham Cty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280 (2010).

         Nevertheless, Defendants contend that if the Court lacks subject-matter jurisdiction over one claim, it must dismiss the entire case. To support this proposition, Defendants cite to Arbaugh v. Y&H Corp., which states that “when a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety.” 546 U.S. 500, 514 (2006). In relying on that sentence, Defendants make a similar argument to that made in U.S. Equal Opportunity Comm'n v. Dillard's Inc.. No. 08-CV-1780-IEG PCL, 2011 WL 2784516, at *4 (S.D.Cal. July 14, 2011). In that case, the U.S. District Court for the Southern District of California explained that such reliance is “misplaced . . . as it stretches the sentence into a broader statement of law than the context of the sentence suggests was intended.” Id. at 4 n.1. In Arbaugh, the U.S. Supreme Court was considering whether Title VII's numerical threshold was a jurisdictional requirement or one that went to the merits of the claim. 546 U.S. at 513-14. The Arbaugh Court noted that when a district court concludes that it lacks subject-matter jurisdiction over a federal claim because jurisdictional prerequisites have not been met, the court must dismiss that claim as well as any pendent state-law claims. Id. at 514. Arbaugh did not address the situation confronting the Court here, or that confronted the Dillard's Court: “whether a federal court can limit the scope of federal claims before it where it finds that a plaintiff has satisfied jurisdictional prerequisites for only some federal claims.” Dillard's, 2011 WL 2784516, at *4 n.1. As the Dillard's Court noted, a district court, which has the inherent power to control its docket, is only obliged to dismiss claims over which it lacks subject-matter jurisdiction, and Rule 12(b)(1) does not require otherwise. Id. at *4.

         After concluding that the Court did not have subject-matter jurisdiction to hear Dr. Abdo's APA claim in Count I, the Court, therefore, should have considered whether it had jurisdiction over, and possibly the merits of, the Complaint's remaining counts. For that reason, the Court shall correct its error by granting Plaintiffs' Motion and reconsidering its March 30, 2018 Memorandum and Order granting Defendants' Motion to Dismiss and dismissing the Complaint in its entirety. Halliburton Co., 866 F.3d at 210; Pac. Ins., 148 F.3d at 403.

         Because Plaintiffs do not challenge the Court's dismissal of Count I for lack of subject-matter jurisdiction, the Court will limit the analysis of Defendants' Motion to Dismiss to its Rule 12(b)(6) arguments.

         B. Motion to Dismiss

         1. Standard of Review

         The purpose of a Rule 12(b)(6) motion is to “test[ ] the sufficiency of a complaint, ” not to “resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). A complaint fails to state a claim if it does not contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), or does not “state a claim to relief that is plausible on its face, ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Though the plaintiff is not required to forecast evidence to prove the elements of the claim, the complaint must allege sufficient facts to establish each element. Goss v. Bank of America, N.A., 917 F.Supp.2d 445, 449 (D.Md. 2013) (quoting Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012)), aff'd sub nom., Goss v. Bank of America, NA, 546 Fed.Appx. 165 (4th Cir. 2013).

         In considering a Rule 12(b)(6) motion, a court must examine the complaint as a whole, consider the factual allegations in the complaint as true, and construe the factual allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of Comm'rs, 407 F.3d 266, 268 (4th Cir. 2005) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). But, the court need not accept unsupported or conclusory factual allegations devoid of any reference to actual events, Unite ...

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