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Mayor and City Council of Baltimore v. Trump

United States District Court, D. Maryland

September 20, 2019

MAYOR AND CITY COUNCIL OF BALTIMORE, Plaintiff,
v.
DONALD J. TRUMP, et al., Defendants.

          MEMORANDUM OPINION

          ELLEN LIPTON HOLLANDER, UNITED STATES DISTRICT JUDGE

         This 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.

         Among 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).

         The 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 1-1.

         The 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.

         Defendants (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.

         Numerous amici curiae have filed memoranda in support of the City. ECF 49; ECF 51; ECF 53.[1]

         No hearing is necessary to resolve the Motion. Local Rule 105.6. For the reasons that follow, I shall deny the Motion.

         I. Background[2]

         A. The Public Charge Statute

         The INA 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, [3] individuals deemed a public charge are “ineligible to receive visas and ineligible to be admitted to the United States.” Id. § 1182(a).

         The INA 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).

         Visa 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.

         B. Visa Application Process

         The 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).

         The “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.

         The 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 visa”).[4]

         An 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.[5] 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 processing. Id.

         Individuals 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.[6] 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.

         C. The Foreign Affairs Manual

         The 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.”).

         1. The Prior FAM Public Charge Rule

         Volume 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.

         “When 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 considerations.” Id.

         Notably, 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 added):

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 charge.

         The FAM provided a non-exhaustive list of non-cash benefits “that are not to be considered as public cash assistance or income . . . .” Id. The list included:

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 income maintenance.

         ECF 1, ¶ 45; ECF 17-2 at 4-5.

         Further, 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.

         In 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.

         2. The Amended FAM Public Charge Rule

         Without 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.

         First, 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.

         Second, 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).

         Third, 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.

         According 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.

         The 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).

         The 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.

         3. The Effect of the FAM's New Public Charge Rule

         The 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. ¶ 127.

         According 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), https://www.boundless.com/ blog/public-charge-rule-explained). Thus, the City posits that the FAM change will disproportionately affect immigrants from developing countries. Id.

         The 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), https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2015AnnualReport/FY15 AnnualReport-TableXX.pdf. There were 3, 237 such denials in 2017. U.S. Dep't of State, Ann. Rep. Table XX (2017), https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/ FY2017AnnualReport/FY17AnnualReport-TableXX.pdf. In 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/ dam/visas/Statistics/AnnualReports/FY2018AnnualReport/FY18AnnualReport%20%20-%20TableXIX.pdf.

         D. Allegations of Defendants' Animus

         The 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.

         For 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), https://www.washingtonpost.com/news/ the-fix/wp/2018/01/11/trumps-history-of-controversial-remarks-about-nonwhite-immigrants/. 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 supra.

         Moreover, 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 include:

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).

         In 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.

         Significantly, 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 Order.” Id.

         Notably, 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)).[7] And, as noted, the State Department amended the FAM's public charge provisions on January 3, 2018. ECF 1, ¶ 92.

         This litigation followed. Additional facts are included below, as necessary for the analysis.

         II. Standard of Review

         Defendants 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.

         A. Rule 12(b)(1)

         A 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 Cir. 1999).

         In a 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.

         B. Rule 12(b)(6)

         A 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.”

         Whether 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).

         To 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 omitted).

         In 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 omitted).

         In 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).

         Courts 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 Goodman).

         “Generally, 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).

         In 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. 1998)).

         Of 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.

         A court 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.”).

         In 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.

         As 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.

         III. Justiciability

         The 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.

         Defendants 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.

         As 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.

         When, 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).

         Therefore, 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 ...


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