United States District Court, D. Maryland
LIPTON HOLLANDER, UNITED STATES DISTRICT JUDGE
Memorandum Opinion concerns a challenge to recent amendments
to the State Department's Foreign Affairs Manual (the
“FAM” or “Manual”). The amendments
pertain to the determination of “public charge”
for purposes of an immigrant visa application.
other things, the FAM sets forth the criteria that consular
officers must consider to determine whether a visa applicant
is likely to be a “public charge”-a person
dependent on the government for subsistence-if admitted to
the United States. See ECF 1, ¶ 92. Under the
Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1101 et seq., enacted in 1952, an applicant
deemed “likely . . . to become a public charge”
is “inadmissible” for entry into the United
States. Id. § 1182(a)(4)(A).
Mayor and City Council of Baltimore (the “City”)
filed a 70-page lawsuit against Donald J. Trump, in his
official capacity as President of the United States; the
United States Department of State (“State
Department”); and Michael R. Pompeo, in his official
capacity as United States Secretary of State, seeking to
enjoin defendants from using the revised Manual to process
immigrant visas applications. ECF 1
(“Complaint”). Appended to the City's
Complaint is a redlined copy of the FAM. See ECF
Complaint contains three counts under the Administrative
Procedure Act, 5 U.S.C. § 551 et seq.
(“APA”), and one count asserting an equal
protection violation under the Due Process Clause of the
Fifth Amendment to the United States Constitution. According
to the City, the amendments to the FAM's public charge
provisions impose financial costs on the City and disrupt its
social services. The City also contends that the amendments
harm the health and well-being of Baltimore's immigrant
communities, which include family members who may be
citizens. In turn, it asserts that “Baltimore as a
whole will suffer.” ECF 1, ¶ 170.
(sometimes collectively referred to as the
“government”) have moved to dismiss the Complaint
pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter
jurisdiction, and under Fed.R.Civ.P. 12(b)(6), for failure to
state a claim. ECF 17. The motion is supported by a
memorandum of law (ECF 17-1) (collectively, the
“Motion”) and a copy of the Manual. ECF 17-2.
According to the government, the claims are not ripe and the
City lacks standing to pursue them. Further, defendants
maintain that even if the City can overcome these
jurisdictional obstacles, the City has failed to plausibly
allege that the FAM violates either the APA or the Due
Process Clause. The City opposes the Motion. ECF 25.
Defendants have replied. ECF 56.
amici curiae have filed memoranda in support of the City. ECF
49; ECF 51; ECF 53.
hearing is necessary to resolve the Motion. Local Rule 105.6.
For the reasons that follow, I shall deny the Motion.
The Public Charge Statute
contains ten grounds that render a visa applicant
inadmissible. 8 U.S.C. § 1182(a). This case concerns one
of them: the public charge ground. The statute provides:
“Any alien who, in the opinion of the consular officer
at the time of application for a visa, or in the opinion of
the Attorney General at the time of application for admission
or adjustment of status, is likely at any time to become a
public charge is inadmissible.” Id. §
1182(a)(4)(A). Thus, under the statute,  individuals
deemed a public charge are “ineligible to receive visas
and ineligible to be admitted to the United States.”
Id. § 1182(a).
does not define the term “public charge.” Rather,
the INA directs that the government “shall at a minimum
consider the alien's-(I) age; (II) health; (III) family
status; (IV) assets, resources, and financial status; and (V)
education and skills.” Id. §
1182(a)(4)(B)(i). In making public charge determinations, the
government “may also consider any Affidavit of
Support[.]” Id. § 1182(a)(4)(B)(ii).
applicants in the United States are processed by U.S.
Citizenship and Immigration Services (“USCIS”),
which is part of the Department of Homeland Security
(“DHS”). ECF 1, ¶ 84. Visa applicants abroad
are processed by the State Department through consular
offices. Id. ¶ 21. Both DHS and the State
Department consider whether a visa applicant is likely to
become a “public charge.” Id. ¶ 39.
Visa Application Process
Consular Visa Process is the process by which non-citizens
apply for a visa to enter the United States. Id.
¶ 18. There are two primary types of visas: (1)
immigrant visas, for individuals who seek to become permanent
residents of the United States; and (2) nonimmigrant visas,
for individuals seeking a temporary stay in the United
States. Id. ¶ 19; see also 8 U.S.C.
§§ 1181(a); 1182(a)(7).
“vast majority” of foreign nationals must travel
to a U.S. consulate to apply for a visa. ECF 1, ¶ 20.
“Consular processing” requires the visa applicant
to submit various documents, undergo a medical screening, and
be interviewed in person by a consular officer. Id.
¶ 21; see also 8 U.S.C. §§ 1202(a),
(e); 22 C.F.R. § 42.62. During the interview, the
consular officer reviews the applicant's criminal,
financial, and medical records to decide if the applicant is
admissible to the United States. ECF 1, ¶ 28.
applicant bears the burden to demonstrate “to the
satisfaction of the consular officer” that he or she is
eligible for the type of visa for which the applicant has
applied. 8 U.S.C. § 1361. No visa “shall be issued
to an alien” if “it appears to the consular
officer” from the application papers “that such
alien is ineligible to receive a visa” or if “the
consular officer knows or has reason to believe” that
the alien is ineligible. Id. § 1201(g);
see 22 C.F.R. § 40.6 (explaining that the term
“‘reason to believe' . . . shall be
considered to require a determination based upon facts or
circumstances which would lead a reasonable person to
conclude that the applicant is ineligible to receive a
individual illegally residing in the United States must
satisfy additional requirements to obtain a visa. ECF 1,
¶ 22. Those individuals must leave the country and
undergo consular processing abroad in order to obtain a visa.
Id. ¶ 29. The individual must remain abroad while
the consulate processes his or her application. This can take
weeks or months or may last indefinitely if the
individual's visa is denied or put into administrative
may obtain an immigrant visa through three channels. First, a
United States employer may file for an employment-based visa
for the immigrant. Id. ¶ 23. Second, an
individual may submit a diversity visa application to the
diversity visa lottery. Id. Third, a lawful
permanent resident or United States citizen may file on
behalf of a relative for a family-based visa. Id.
¶¶ 23, 25. Where an applicant files for a
family-based visa, the family member sponsor must submit an
Affidavit of Support (Form I-864) on the applicant's
behalf. Id. ¶ 25. Consular officials use the
Affidavit to determine whether a visa applicant will have
sufficient financial support should he or she receive a visa.
Id. ¶ 26. The Affidavit also serves as a
contract between the visa applicant, the sponsor, and the
federal government, in which the sponsor pledges to support
the applicant if he or she is not
self-sufficient. Id. According to the City,
“an immigrant who can depend on a reliable source of
support from a sponsor is dramatically less likely to need
any public benefits.” Id.
The Foreign Affairs Manual
State Department's website describes the FAM as “a
single, comprehensive, and authoritative source for the
Department's organization structure, policies, and
procedures that govern the operation of the State Department,
the Foreign Service, and, when applicable, other federal
agencies.” Id. ¶ 42 (quoting Foreign
Affairs Manual and Handbook, U.S. Dep't of State,
http://fam.state.gov/). Along with the State
Department's handbooks, the Manual “convey[s]
codified information to Department staff and contractors so
they can carry out their responsibilities in accordance with
statutory, executive, and Department mandates.”
Id.; see also Sheikh v. U.S. Dep't of
Homeland Sec., 685 F.Supp.2d 1076, 1090 (C.D. Cal. 2009)
(“FAM contains the functional statements,
organizational responsibilities, and authorities of each of
the major components of the U.S. Department of State,
including Consular Officers.”).
The Prior FAM Public Charge Rule
Nine of the Manual contains instructions that consular
officers are to follow when assessing whether a visa
applicant is a public charge. Prior to January 3, 2018, the
FAM defined “public charge” as a non-citizen
“likely to become primarily dependent on the U.S.
Government for subsistence.” ECF 1, ¶ 44; ECF 17-2
(9 FAM § 302.8 (2017)) at 3. This occurred either from
“[r]eceipt of public cash assistance for income
maintenance” or “[i]nstitutionalization for
long-term care at U.S. Government expense.” ECF 1,
¶ 44; ECF 17-2 at 3.
considering the likelihood of an applicant becoming such a
‘public charge,' [the consular officer] must take
into account, the totality of the alien's circumstances
at the time of visa application.” ECF 17-2 at 3.
However, the FAM clarified that the officer “must
assess only the ‘totality of the circumstances'
existing at the time of visa application.” Id.
at 11. In other words, the officer “may not refuse a
visa on the basis of ‘what if' type
the Manual excluded the visa applicant's past, current,
or future receipt of non- cash benefits from this holistic
review. ECF 1, ¶ 44. It stated, ECF 17-2 at 4 (emphasis
There are many forms of U.S. Government assistance that an
alien may have accepted in the past, or that you may
reasonably believe an alien might receive after admission to
the United States, that are of a noncash and/or supplemental
nature and would not create an inadmissibility under INA
212(a)(4). Certain programs are funded with public funds for
the general good, such as public education and child
vaccination programs, etc., and are not considered to be
benefits for the purposes of INA 212(a)(4). Although the
Personal Responsibility and Work Opportunity Reconciliation
Act of 1996 prohibit aliens from receiving many kinds of
public benefits, it specifically exempts from this
prohibition several of the public benefits indicated below.
Neither the past nor possible future receipt of such
non-cash or supplemental assistance may be considered in
determining whether an alien is likely to become a public
provided a non-exhaustive list of non-cash benefits
“that are not to be considered as public cash
assistance or income . . . .” Id. The list
1. The Food Stamp Program;
2. The Medicaid Program (other than payments under Medicaid
for long-term institutional care);
3. The Child Health Insurance Program (CHIP);
4. Emergency medical services;
5. The Women, Infants and Children (WIC) Program;
6. Other nutrition and food assistance programs;
7. Other health and medical benefits; 8. Child-care benefits;
9. Foster care
10. Transportation vouchers;
11. Job training programs;
12. Energy assistance, such as the low-income home energy
assistance program (LIHEAP);
13. Educational assistance, such as Head Start or aid for
elementary, secondary, or higher education;
14. Job training;
15. In-kind emergency community services, such as soup
kitchens and crisis counseling;
16. State and local programs that serve the same purposes as
the Federal in-kind programs listed above; and
17. Any other Federal, State, or local programs in which
benefits are paid in-kind, by voucher or by any means other
than payment of cash benefits to the eligible person for
¶ 45; ECF 17-2 at 4-5.
the Manual limited the relevance of benefits used by the visa
applicant's family members. It stated: “Past or
current receipt of cash benefits for income maintenance by a
family member of the visa applicant may be factored into the
applicant's case only when such benefits also
constitute(d) the primary means of subsistence of the
applicant.” ECF 1, ¶ 102; ECF 17-2 at 10
(alteration in original). The Manual also provided:
“Past or current receipt of other types of benefits, .
. . must not be considered.” ECF 1, ¶ 102; ECF
17-2 at 101.
regard to an Affidavit of Support, the FAM instructed that
“[a] properly filed, non-fraudulent Form I-864 should
normally be considered sufficient to overcome the INA
212(a)(4) requirements.” ECF 1, ¶ 47; ECF 17-2 at
7. “If the sponsor or any member of his or her
household has received public means-tested benefits within
the past three years, ” the FAM required the consular
officer to “review fully the sponsor's current
ability to provide the requisite level of support, taking
into consideration the kind of assistance provided and the
dates received.” ECF 1, ¶ 48; ECF 17-2 at 11-12.
Nonetheless, the Manual stated: “There is no provision
in the law to indicate that the receipt of means-tested
benefits by the sponsor would, in itself, result in a finding
of inadmissibility for the applicant . . . .” ECF 1,
¶ 107; ECF 17-2 at 11.
The Amended FAM Public Charge Rule
prior notice, the State Department issued amendments to
Volume Nine of the Manual on January 3, 2018. ECF 1, ¶
92. The State Department posted a memorandum on its website
on January 4, 2018, announcing the changes. Id.
¶ 115. In three significant ways, the revisions alter
how consular officers conduct public charge determinations.
the FAM previously prohibited consular officers from
considering the applicant's past or potential future use
of non-cash public assistance. ECF 1, ¶ 97. But, the
Manual now requires consular officers to consider a visa
applicant's receipt of non-cash benefits as part of the
public charge determination. Id. ¶ 96.
Specifically, the FAM states: “There are many forms of
public assistance that an applicant may have accepted in the
past, or that you may reasonably believe, an alien might
receive after admission to the United States that are of a
non-cash and/or supplementary nature and should not be
considered to be benefits when examining the applicant under
INA 212(a)(4), and may only be considered as part of the
totality of the applicant's circumstances in determining
whether an applicant is likely to become a public
charge.” Id. ¶ 98; ECF 1-1 at 5
(emphasis added). Furthermore, the State Department dropped
the FAM's directive that “[n]either the past nor
possible future receipt of such non-cash or supplemental
assistance may be considered in determining whether an alien
is likely to become a public charge.” ECF 1,
¶¶ 99-100; ECF 1-1 at 5.
under the earlier version of the FAM, consular officers were
not permitted to consider the use of non-cash benefits by the
applicant's family members; the receipt of cash
assistance was relevant only if the benefits were the
applicant's primary source of income. ECF 1, ¶ 102.
However, the FAM now includes the receipt of non-cash
benefits by the visa applicant's family members as a part
of the totality-of-the-circumstances test. Id.
¶ 101. The relevant provision now states: “Past or
current receipt of public assistance of any type by
the visa applicant or a family member in the visa
applicant's household is relevant to determining whether
the applicant is likely to become a public charge in the
future[.]” ECF 1, ¶ 103; ECF 1-1 at 9 (emphasis
added). Further, the FAM instructs consular officers to treat
“[a] dependent family member's receipt of public
benefits” as “a heavily negative factor
in the totality of the circumstances unless the applicant can
demonstrate that his or her prospective income and assets
with the income and assets of the others in the family will
be sufficient for the family to overcome the poverty income
guideline for the family.” ECF 1, ¶ 104; ECF 1-1
at 10 (emphasis added).
whereas the FAM once taught that an Affidavit of Support from
the applicant's sponsor was “normally . . .
sufficient” to satisfy the public charge inquiry, the
revised Manual diminishes the Affidavit's weight,
instructing that it is merely one factor among many that the
consular officer should consider. ECF 1, ¶¶ 105-08.
Currently, the consular officer may treat the Affidavit as a
“positive” factor, whereas it was previously
“sufficient” in most cases. Id. ¶
105; ECF 1-1 at 7.
to the City, the State Department “now considers the
past or current receipt of non-cash, means-tested benefits by
sponsors or their family members to be disqualifying.”
ECF 1, ¶ 106. For support, plaintiff notes that the new
Manual no longer contains the qualifier that “[t]here
is no provision in the law to indicate that the receipt of
means-tested benefits by the sponsor would, in itself, result
in a finding of inadmissibility . . . .” Id.
¶ 108; ECF 1-1 at 24.
City contends that the memorandum posted by the State
Department on January 4, 2018, concerning the revisions to
the FAM, did not mention many of the changes made to the FAM.
ECF 1, ¶ 119(a). In particular, it “failed to
acknowledge that the changes to the FAM's public charge
provisions amounted to a reversal of the decades-old
understanding of the public charge ground of inadmissibility,
codified in prior versions of the FAM and by INS in the 1999
NPRM and Field Guidance.” Id. ¶ 119(c).
Moreover, it did not “disclose that DHS would be
proposing for public comment similar changes to the public
charge determination . . . .” Id. ¶
119(e). And it “failed to provide any
explanation as to why the State Department was changing its
policy and approach to the public charge ground of
inadmissibility, nor reasons for the new approach.”
Id. ¶119(f) (emphasis in original).
State Department removed the memorandum from its website
several weeks after it was posted. Id. ¶ 116.
Since then, the State Department has neither reposted the
memorandum nor issued any other public statement about the
revisions to the FAM's public charge provisions. But, the
amendments to the FAM remain in effect.
The Effect of the FAM's New Public Charge Rule
City alleges that “the FAM change deters immigrants,
their family members, and their sponsors from accepting
public benefits-benefits for which they are legally eligible
and which are designed to promote public health and economic
self-sufficiency.” Id. ¶ 121. It points
to media stories detailing a steep drop in the receipt of
non-cash benefits by immigrants. Id. ¶ 126;
see infra Part III.A(2). And, the City notes that
healthcare providers throughout Maryland have observed that
immigrants are foregoing health benefits like WIC or Medicare
for fear of immigration consequences. Id. ¶
to the City, the changes to the FAM's public charge
provisions will be felt most acutely by non-white immigrants.
Id. ¶ 128. For support, plaintiffs turn to an
analysis of DHS's proposed rule pertaining to the
definition of public charge, which found that the rule, if
implemented, would “have disproportionate effects based
on national origin and ethnicity, blocking 71% of applicants
from Mexico and Central America, 69% from Africa, and 52%
from Asia-but only 36% from Europe, Canada, and
Oceania.” Id. (quoting The Public Charge
Rule, Explained, Boundless (Sept. 23, 2018),
blog/public-charge-rule-explained). Thus, the City
posits that the FAM change will disproportionately affect
immigrants from developing countries. Id.
City and Amici also note in their briefs that visa denials
due to public charge inadmissibility have surged since the
State Department issued the amended FAM. See ECF 25
at 19-20; ECF 49 at 5; ECF 53 at 3-4. In 2015, the State
Department denied 897 visa applications on public charge
grounds. U.S. Dep't of State, Ann. Rep. Table XX (2015),
AnnualReport-TableXX.pdf. There were 3, 237 such denials
in 2017. U.S. Dep't of State, Ann. Rep. Table XX (2017),
contrast, during the 2018 fiscal year, the number of visa
applications denied on public charge grounds exceeded 13, 000
visa applications. U.S. Dep't of State, Ann. Rep. Table
XX (2018), https://travel.state.gov/content/
Allegations of Defendants' Animus
City alleges that President Trump and senior Executive Branch
officials harbor “animus towards immigrants,
particularly those from Latin American, Asian, and African
countries, and those who accept public benefits.” ECF
1, ¶ 74. In support of this allegation, plaintiff points
to multiple statements by President Trump that allegedly
reflect disdain for immigrants from Africa and Latin America.
example, President Trump reportedly told advisors in June
2017 that immigrants from Haiti “all have AIDS”
and that Nigerians, once admitted to the United States, would
never “go back to their huts.” Id.
¶ 70; see Eugene Scott, Trump's History
of Making Offensive Comments About Nonwhite Immigrants,
Wash. Post (Jan. 11, 2018),
And, during a cabinet meeting on January 11, 2018, in
reference to immigrants from Haiti and Africa, President
Trump allegedly remarked, “Why do we want all these
people from ‘shithole countries' coming
here?” ECF 1, ¶ 69; see also Scott
the Complaint contains four pages of other public statements
made by President Trump, complaining that immigrants are a
drain on the public fisk. ECF 1, ¶ 71. Those statements
1. “According to the National Academy of Sciences, our
current immigration system costs America's taxpayers many
billions of dollars a year.” Id. ¶ 71(m).
2. “We also believe that those seeking to immigrate
into our country should be able to support themselves
financially and should not be able to use welfare for
themselves or the household for a period of at least five
years.” Id. ¶ 71(n).
3. “Current immigration policy imposes as much as $300
billion annually in net fiscal costs on U.S.
taxpayers.” Id. ¶ 71(p).
4. “According to the Center for Immigration Studies,
the $18 billion wall will pay for itself by curbing the
importation of crime, drugs, and illegal immigrants who tend
to go on the federal dole.” Id. ¶ 71(q).
5. “[T]hey're not sending their finest. We're
sending them the hell back.” Id. ¶ 71(r).
6. “So-called Birthright Citizenship, which costs our
Country billions of dollars and is very unfair to our
citizens, will be ended one way or the other.”
Id. ¶ 71(t).
7. “We're the only country in the world where a
person comes in and has a baby, and the baby is essentially a
citizen of the United States . . . with all of those
benefits.” Id. ¶ 71(u).
support of the City's claims that the Trump
Administration harbors animus towards immigrants, the City
also cites to statements made by Stephen Miller, a senior
advisor to President Trump on immigration policy, and
comments made by former Attorney General Jeff Sessions when
he was a U.S. Senator. Id. ¶¶ 72-73.
the City alleges that the President's conduct led to the
State Department's decision to amend the FAM's public
charge instructions. Id. ¶ 76. The City asserts
that, shortly after President Trump's inauguration in
January 2017, the media obtained a draft order titled
“Executive Order on Protecting Taxpayer Resources by
Ensuring Our Immigration Laws Promote Accountability and
Responsibility.” Id. ¶ 77; see
Andrew Bremberg, Memorandum for the President, Subject:
Executive Order on Protecting Taxpayer Resources by Ensuring
Our Immigration Laws Promote Accountability and
Responsibility (Jan. 23, 2017). According to the City, the
draft order directed DHS to “rescind any field
guidance” and “propose for notice and comment a
rule that provides standards for determining which aliens are
inadmissible or deportable on public charge grounds.”
ECF 1, ¶ 77. In addition, the City alleges that the
draft order instructed the State Department “to amend
the Foreign Affairs Manual to ensure that its public-charge
provisions are consistent with the goals of this
the draft order was never finalized. Id.
Nevertheless, plaintiff contends that both the State
Department and DHS took measures in accordance with the draft
order. On October 10, 2018, DHS published a notice of
proposed rulemaking in the Federal Register titled
“Inadmissibility on Public Charge Grounds.”
Id. ¶ 83; see 83 Fed. Reg. 51, 114
(Oct. 10, 2018) (“DHS Proposed Rule”). The
proposed rule purported to expand the definition of public
charge to include the receipt of non-cash public benefits.
ECF 1, ¶ 86. DHS published a final version of the
regulation on August 14, 2019. See Inadmissibility of
Public Charge Grounds, 84 Fed. Reg. 41, 292, 41, 501
(Aug. 14, 2019) (to be codified as 8 C.F.R. §
212.21(a)). And, as noted, the State Department
amended the FAM's public charge provisions on January 3,
2018. ECF 1, ¶ 92.
litigation followed. Additional facts are included below, as
necessary for the analysis.
Standard of Review
have moved to dismiss the City's Complaint under Rule
12(b)(1) for lack of subject matter jurisdiction, and
pursuant to Rule 12(b)(6) for failure to state a claim.
challenge to subject matter jurisdiction under Rule 12(b)(1)
may proceed “in one of two ways”: either a facial
challenge, asserting that the allegations pleaded in the
complaint are insufficient to establish subject matter
jurisdiction, or a factual challenge, asserting
“‘that the jurisdictional allegations of the
complaint [are] not true.'” Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009) (citation
omitted); accord Durden v. United States, 736 F.3d
296, 300 (4th Cir. 2013). The plaintiff bears the burden of
proving, by a preponderance of evidence, the existence of
subject matter jurisdiction. See Demetres v. East West
Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); see
also The Piney Run Preservation Ass'n v. Cty. Comm'rs
of Carroll Cty., 523 F.3d 453, 459 (4th Cir. 2008);
Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th
facial challenge, “the facts alleged in the complaint
are taken as true, and the motion must be denied if the
complaint alleges sufficient facts to invoke subject matter
jurisdiction.” Kerns, 585 F.3d at 192. On the
other hand, in a factual challenge, “the district court
is entitled to decide disputed issues of fact with respect to
subject matter jurisdiction.” Id. In that
circumstance, the court “may regard the pleadings as
mere evidence on the issue and may consider evidence outside
the pleadings without converting the proceeding to one for
summary judgment.” Velasco v. Gov't of
Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); see
also United States ex rel. Vuyyuru v. Jadhav, 555 F.3d
337, 347-48 (4th Cir. 2009); Evans, 166 F.3d at 647.
defendant may test the legal sufficiency of a complaint by
way of a motion to dismiss under Rule 12(b)(6). In re
Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines
v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th
Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393,
408 (4th Cir. 2010), aff'd sub nom.,
McBurney v. Young, 569 U.S. 221 (2013); Edwards
v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
A Rule 12(b)(6) motion constitutes an assertion by a
defendant that, even if the facts alleged by a plaintiff are
true, the complaint fails as a matter of law “to state
a claim upon which relief can be granted.”
a complaint states a claim for relief is assessed by
reference to the pleading requirements of Fed.R.Civ.P.
8(a)(2). That rule provides that a complaint must contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” The purpose of the
rule is to provide the defendants with “fair
notice” of the claims and the “grounds” for
entitlement to relief. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555-56 (2007).
survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint
must contain facts sufficient to “state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. at 570; see Ashcroft v.
Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in
Twombly expounded the pleading standard for
‘all civil actions' . . . .” (citation
omitted)); see also Paradise Wire & Cable Defined
Benefit Pension Plan v. Weil, 849 F.3d 93, 112 (4th Cir.
2019); Willner v. Dimon, 849 F.3d 93, 112 (4th Cir.
2017). To be sure, a plaintiff need not include
“detailed factual allegations” in order to
satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555.
Moreover, federal pleading rules “do not countenance
dismissal of a complaint for imperfect statement of the legal
theory supporting the claim asserted.” Johnson v.
City of Shelby, Miss., 574 U.S. 10, 10, 135 S.Ct. 346,
346 (2014) (per curiam). But, mere “‘naked
assertions' of wrongdoing” are generally
insufficient to state a claim for relief. Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citation
other words, the rule demands more than bald accusations or
mere speculation. Twombly, 550 U.S. at 555; see
Painter's Mill Grille, LLC v. Brown, 716 F.3d 342,
350 (4th Cir. 2013). If a complaint provides no more than
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action, ” it
is insufficient. Twombly, 550 U.S. at 555.
“[A]n unadorned, the-defendant-unlawfully-harmed-me
accusation” does not state a plausible claim of relief.
Iqbal, 556 U.S. at 678. Rather, to satisfy the
minimal requirements of Rule 8(a)(2), the complaint must set
forth “enough factual matter (taken as true) to
suggest” a cognizable cause of action, “even if .
. . [the] actual proof of those facts is improbable and . . .
recovery is very remote and unlikely.”
Twombly, 550 U.S. at 556 (internal quotation marks
reviewing a Rule 12(b)(6) motion, a court “must accept
as true all of the factual allegations contained in the
complaint” and must “draw all reasonable
inferences [from those facts] in favor of the
plaintiff.” E.I. du Pont de Nemours & Co. v.
Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)
(citations omitted); see Semenova v. MTA, 845 F.3d
564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs.,
Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v.
Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert.
denied, 565 U.S. 943 (2011). But, a court is not
required to accept legal conclusions drawn from the facts.
See Papasan v. Allain, 478 U.S. 265, 286 (1986);
Glassman v. Arlington Cty., 628 F.3d 140, 146 (4th
Cir. 2010). “A court decides whether [the pleading]
standard is met by separating the legal conclusions from the
factual allegations, assuming the truth of only the factual
allegations, and then determining whether those allegations
allow the court to reasonably infer” that the plaintiff
is entitled to the legal remedy sought. A Society Without
a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011),
cert. denied, 566 U.S. 937 (2012).
ordinarily do not “‘resolve contests surrounding
the facts, the merits of a claim, or the applicability of
defenses'” through a Rule 12(b)(6) motion.
Edwards, 178 F.3d at 243 (quoting Republican
Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)).
However, “in the relatively rare circumstances where
facts sufficient to rule on an affirmative defense are
alleged in the complaint, the defense may be reached by a
motion to dismiss filed under Rule 12(b)(6).”
Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th
Cir. 2007) (en banc); accord Pressley v. Tupperware Long
Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009).
Because Rule 12(b)(6) “is intended [only] to test the
legal adequacy of the complaint, ” Richmond,
Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d
244, 250 (4th Cir. 1993), “[t]his principle only
applies . . . if all facts necessary to the affirmative
defense ‘clearly appear[ ] on the face of the
complaint.'” Goodman, 494 F.3d at 464 (quoting
Forst, 4 F.3d at 250) (emphasis added in
when a defendant moves to dismiss a complaint under Rule
12(b)(6), courts are limited to considering the sufficiency
of allegations set forth in the complaint and the
‘documents attached or incorporated into the
complaint.'” Zak v. Chelsea Therapeutics
Int'l, Ltd., 780 F.3d 597, 606 (4th Cir. 2015)
(quoting E.I. du Pont de Nemours & Co., 637 F.3d
at 448). Therefore, the court ordinarily “may not
consider any documents that are outside of the complaint, or
not expressly incorporated therein . . . .”
Clatterbuck v. City of Charlottesville, 08 F.3d 549,
557 (4th Cir. 2013), abrogated on other grounds by
Reed v. Town of Gilbert, Ariz., 576 U.S.__, 135
S.Ct. 2218 (2015), as recognized in Cahaly v.
Larosa, 796 F.3d 399 (4th Cir. 2015); see Bosiger v.
U.S. Airways, Inc., 510 F.3d 442, 450 (4th Cir. 2007).
However, under limited circumstances, when resolving a Rule
12(b)(6) motion, a court may consider documents beyond the
complaint without converting the motion to dismiss to one for
summary judgment. Goldfarb v. Mayor & City Council of
Balt., 791 F.3d 500, 508 (4th Cir. 2015).
particular, a court may properly consider documents that are
“explicitly incorporated into the complaint by
reference and those attached to the complaint as
exhibits.” Goines, 822 F.3d at 166 (citation
omitted); see also Six v. Generations Fed. Credit
Union, 891 F.3d 508, 512 (4th Cir. 2018); Anand v.
Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir.
2014); U.S. ex rel. Oberg v. Pa. Higher Educ. Assistance
Agency, 745 F.3d 131, 136 (4th Cir. 2014); Am.
Chiropractic Ass'n v. Trigon Healthcare, Inc., 367
F.3d 212, 234 (4th Cir. 2004), cert. denied, 543
U.S. 979 (2004); Phillips v. LCI Int'l Inc., 190
F.3d 609, 618 (4th Cir. 1999). But, “before treating
the contents of an attached or incorporated document as true,
the district court should consider the nature of the document
and why the plaintiff attached it.” Goines,
822 F.3d at 167 (citing N. Ind. Gun & Outdoor Shows,
Inc. v. City of S. Bend, 163 F.3d 449, 455 (7th Cir.
import here, “[w]hen the plaintiff attaches or
incorporates a document upon which his claim is based, or
when the complaint otherwise shows that the plaintiff has
adopted the contents of the document, crediting the document
over conflicting allegations in the complaint is
proper.” Goines, 822 F.3d at 167. Conversely,
“where the plaintiff attaches or incorporates a
document for purposes other than the truthfulness of the
document, it is inappropriate to treat the contents of that
document as true.” Id.
may also “consider a document submitted by the movant
that [is] not attached to or expressly incorporated in a
complaint, so long as the document was integral to the
complaint and there is no dispute about the document's
authenticity.” Goines, 822 F.3d at 166
(citations omitted); see also Woods v. City of
Greensboro, 855 F.3d 639, 642 (4th Cir. 2017), cert.
denied, __U.S.__, 138 S.Ct. 558 (2017); Oberg,
745 F.3d at 136; Kensington Volunteer Fire Dep't. v.
Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012). To
be “integral, ” a document must be one
“that by its ‘very existence, and not the
mere information it contains, gives rise to the legal
rights asserted.'” Chesapeake Bay Found., Inc.
v. Severstal Sparrows Point, LLC, 794 F.Supp.2d 602, 611
(D. Md. 2011) (citation omitted) (emphasis in original).
See also Fed. R. Civ. P. 10(c) (“A copy of a
written instrument that is an exhibit to a pleading is a part
of the pleading for all purposes.”).
addition, “a court may properly take judicial notice of
‘matters of public record' and other information
that, under Federal Rule of Evidence 201, constitute
‘adjudicative facts.'” Goldfarb, 791
F.3d at 508; see also Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007); Katyle v.
Penn Nat'l Gaming, Inc., 637 F.3d 462, 466 (4th Cir.
2011), cert. denied, 565 U.S. 825 (2011);
Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180
(4th Cir. 2009). However, under Fed.R.Evid. 201, a court may
take judicial notice of adjudicative facts only if they are
“not subject to reasonable dispute, ” in that
they are “(1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate
and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” And, “these
facts [must be] construed in the light most favorable”
to the nonmovant. Clatterbuck, 708 F.3d at 557.
noted, the City has attached as an exhibit to its Complaint
the redline version of the FAM's public charge
provisions, subsequent to January 3, 2018. ECF 1-1;
see ECF 1, ¶ 95. With their Motion, the
government submitted a version of the Manual, dated August 4,
2017. ECF 17-2. As the City's APA and constitutional
claims are predicated on the Manual, it is integral to the
Complaint and may be considered. In addition, the government
references the Attorney General's Manual on the APA in
its Motion (ECF 17-1 at 42), and plaintiff relies on data
concerning visa application denials in its opposition. ECF 25
at 19-20. Because these materials are publicly available, and
neither party disputes their authenticity, I may take
judicial notice of them. Accordingly, I may consider the
exhibits and referenced public materials, without converting
defendants' Motion to one for summary judgment.
government argues that this Court is without subject matter
jurisdiction to consider this case. According to defendants,
plaintiff lacks Article III standing to pursue this suit and
the case is not ripe. ECF 17-1 at 21-32.
advance several arguments in regard to standing. First, they
assert that plaintiff's harm does not qualify as an
injury-in-fact, as “it relies on speculation about what
might happen to the City depending on how Baltimore residents
react to the guidance.” Id. at 25. Second,
they maintain that the City's alleged harms are not
“fairly traceable” to the FAM or redressable by
judicial order, because they are caused by the
“‘unfettered choices'” of
“‘independent actors not before the
courts.'” Id. at 26 (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 562 (1993)
(plurality opinion)). In addition, the government contends
that the City lacks standing to assert the constitutional
rights of its residents. Id. at 29-30. And,
defendants argue that even if the City has Article III
standing to sue the State Department and Pompeo, the City
lacks standing to sue the President, because it does not
plausibly allege that its injuries are fairly traceable to
him. Id. at 30-31. Not surprisingly, the City
disagrees. ECF 25 at 22-37.
noted, under Rule 12(b)(1), the plaintiff bears the burden of
proving, by a preponderance of evidence, the existence of
subject matter jurisdiction. See Lujan, 504 U.S. at
561; Demetres, 776 F.3d at, 272; Durden,
736 F.3d at 300. Notably, the analysis of standing will vary
with the stage of litigation. Overbey v. Mayor and City
Council of Balt., 930 F.3d 215, 227 (4th Cir. 2019). In
the context of a facial challenge under Rule 12(b)(1), the
question is whether plaintiff's allegations, taken as
true, “are enough to give the [plaintiff]
constitutional standing.” Id.
as here, “‘standing is challenged on the
pleadings, [the court will] accept as true all material
allegations of the complaint and construe the complaint in
favor of the complaining party.'” Deal v.
Mercer Cty. Bd. of Educ., 911 F.3d 183, 187 (4th Cir.
2018) (quoting So. Walk at Broadlands Homeowner's
Ass'n, Inc. v. OpenBand at Broadlands, LLC,
713 F.3d 175, 181-82 (4th Cir. 2013)); see Kerns,
585 F.3d at 192. “At the pleading stage, general
factual allegations of injury resulting from the
defendant's conduct may suffice, [because] on a motion to
dismiss [the court] presum[es] that general allegations
embrace those specific facts that are necessary to support
the claim.” Lujan, 504 U.S. at 561 (citation
and quotation marks omitted); accord Hutton v. Nat'l
Bd. of Exam'rs in Optometry, Inc., 892 F.3d 613, 620
(4th Cir. 2018); Moore v. Blibaum & Assocs.,
P.A., 693 Fed.Appx. 205 (4th Cir. 2017); NAACP v.
Bureau of the Census, PWG-18-891, 2019 WL 355743, at *17
(D. Md. Jan 19, 2019).
in analyzing the standing issue, I shall accept as true the
allegations in the Complaint, so long as “there is
sufficient ‘factual matter' to render them
‘plausible on [their] face.'” Beck v.
McDonald, 848 F.3d 262, 270 (4th Cir. 2017) (quoting
Iqbal, 556 U.S. at 678), cert. denied sub ...