United States District Court, D. Maryland
L. Russell, III United States District Judge
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).
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) 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,  and a son, J.A., in 2015, in the United
States. (Id. ¶¶ 28-30).
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).
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).
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).
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).
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).
Motion to Alter Judgment
Standard of Review
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.
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)).
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.
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
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).
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.
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.
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.
Motion to Dismiss
Standard of Review
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).
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,