Marquez v. Pompeo

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
ALICIA MARIA MARQUEZ, )
)
Plaintiff, )
)
v. ) Civil Action No. 20-cv-3225 (TSC)
)
MICHAEL R. POMPEO, Secretary, U.S )
Department of State, in his official capacity, )
)
Defendant. )
)

MEMORANDUM OPINION

Plaintiff Alicia Maria Marquez brings this action against now-former Secretary of State

Michael Pompeo, alleging that Defendant and the United States Department of State (“State”)

unlawfully denied her passport application in violation of the Administrative Procedures Act

(“APA”) and the Fifth Amendment Due Process Clause. Defendant has moved to dismiss

Plaintiff’s lawsuit. ECF No. 11, Def. Mot. For the reasons explained below, the court will

GRANT Defendant’s motion to dismiss.

I. BACKGROUND

Plaintiff alleges that she was born on July 7, 1980, in San Angelo, Texas, but did not

receive a U.S. birth certificate at that time because shortly after her birth she and her parents

returned to Mexico, where they registered her birth and obtained a Mexican birth certificate.

ECF No. 1, Compl. ¶¶ 5, 9. In 1982, Plaintiff and her family returned to the United States, at

which point they recorded her birth in the United States and Plaintiff obtained a U.S. birth

certificate. Id. ¶ 11. It is unclear how long Plaintiff resided in the United States between 1982

and 1999, but she claims that she at least periodically traveled to the United States during that

time to receive vaccinations, her First Holy Communion, and to attend elementary school. Id. ¶
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12. Plaintiff alleges that more recently, since 1999, she has lived in San Antonio, Texas. ECF

No. 13, Pl. Opp’n at 5. She asserts that in 2006 she learned that it is unlawful to have two birth

certificates, and consequently filed a civil complaint in Mexico to have her Mexican birth

certificate annulled. Compl. ¶ 15.

On January 9, 2009, Plaintiff applied for a U.S. passport. Id. ¶ 17; Def. Mot. at 2. In

support of her application, she submitted a copy of her U.S. birth certificate issued by the Texas

Bureau of Vital Statistics, which states that Plaintiff was born in 1980, in San Angelo, Texas.

Def. Mot., Ex. 1. On June 22, 2009, State responded that it suspected the birth attendant who

filed Plaintiff’s birth certificate in 1982 of submitting false birth records, and asked Plaintiff to

provide supplemental documentation in support of her application. Id. On September 16, 2009,

Plaintiff provided supplemental information, but State found the additional documentation

insufficient to show by a preponderance of evidence that Plaintiff was born in the United States.

Id. State further noted that Plaintiff’s birth record was flagged as having been filed fraudulently.

Id. Consequently, it denied Plaintiff’s application, but informed her that she could submit

additional documentation to support her application and request re-adjudication within 60 days

of receiving the denial. Plaintiff subsequently submitted additional evidence and requested re-

adjudication of her application, and in March 2010, State affirmed its denial decision. Id., Ex. 2.

On August 24, 2016, Plaintiff submitted a second passport application. Compl. ¶ 18;

Def. Mot., Ex. 3. State again asked Plaintiff to submit supplemental evidence in support of her

application, which she did on January 13, February 22, and March 3, 2017. Def. Mot., Ex. 3.

She also participated in telephone interviews with State officials on February 27 and June 29,

2017. Id. In 2018, State denied Plaintiff’s second application, again noting that her birth record

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was flagged as fraudulently filed and that she had not provided sufficient evidence to otherwise

show that she was born in the United States. Id.

Plaintiff seeks a declaration from the court that she is a U.S. citizen and that State

wrongly denied her passport application using procedures that violated her constitutional rights.

See Compl. at 10. Defendant has moved to dismiss, arguing that Plaintiff’s APA claim is

precluded because 8 U.S.C. § 1503(a) provides her with an adequate alternative remedy, that her

APA claim is time-barred, that she fails to state a valid Fifth Amendment claim for relief, and

that this court is not the proper venue for this lawsuit. Defendant asks the court to dismiss this

action in full or, in the alternative, transfer any valid claims to the Western District of Texas.

II. LEGAL STANDARD

Federal courts have limited jurisdiction and those limits are especially important in the

agency review context, where “Congress is free to choose the court in which judicial review of

agency decisions may occur.” Am. Petroleum Inst. v. SEC, 714 F.3d 1329, 1332 (D.C. Cir.

2013) (internal quotation marks and citation omitted). The law presumes that “a cause lies

outside [the court’s] limited jurisdiction” unless the party asserting jurisdiction establishes

otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Thus, the

plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

A. Lack of Subject Matter Jurisdiction

In evaluating a motion to dismiss for lack of jurisdiction under Federal Rule of Civil

Procedure Rule 12(b)(1), a court must “assume the truth of all material factual allegations in the

complaint and ‘construe the complaint liberally, granting plaintiff the benefit of all inferences

that can be derived from the facts alleged.”’ Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139

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(D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). And “a court

may consider such materials outside the pleadings as it deems appropriate to resolve the question

[of] whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104

F. Supp. 2d 18, 22 (D.D.C. 2000) (citing Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C.

Cir. 1992)). The court must “grant dismissal if it lacks subject matter jurisdiction” because it is

both an Article III and statutory requirement. Xia v. Pompeo, No. 1:14-cv-57-RCL, 2019 WL

6311912, *9 (D.D.C. Nov. 5, 2019) (citing Akinseye v. District of Columbia, 339 F.3d 970, 971

(D.C. Cir. 2003). The court lacks subject matter jurisdiction when a plaintiff has failed to

“exhaust their administrative remedies before the agency.” Id.

B. Failure to State a Claim

A motion to dismiss under Rule 12(b)(6) for failure to state a claim “tests the legal

sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A

complaint should state a “short plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. of Civ. Proc. 8(a)(2). The complaint must contain enough facts to state a claim

that is plausible on its face by alleging facts that, if assumed to be true, would allow the court to

draw “reasonable inference[s] that the defendant is liable for the misconduct alleged.” Bell Atl.

Co. v. Twombly, 550 US 544, 555-56 (2007); Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir.

2015); Ashcroft v. Iqbal, 556 US 662, 677-78 (2009). The court presumes the truth of a

plaintiff’s factual allegations, see Iqbal, 556 U.S. at 679, and construes the complaint “in favor of

the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts

alleged,” Hettinga v. United States, 677 F.3d 471 (D.C. Cir. 2012) (internal quotation marks

omitted).

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 C. Improper Venue

Under Rule 12(b)(3), a court may dismiss or transfer a case if the venue is improper or

inconvenient. Fed. R. Civ. P. 12(b)(3). Venue is proper: (1) in a district where “any defendant

resides, if all defendants are residents of the state in which the district is located;” (2) in a district

in which “a substantial part” of the events giving rise to the suit occurred; or (3) if venue would

not be proper in any district for either of those reasons, wherever the defendants are subject to

personal jurisdiction. 28 U.S.C. § 1391(b). “‘When venue is challenged, the court must

determine whether the case falls within one of the three categories set out in § 1391(b). If it

does, venue is proper,’ but, ‘if it does not, venue is improper, and the case must be dismissed or

transferred under § 1406(a).’” King v. Caliber Home Loans, Inc., 210 F. Supp. 3d 130, 133-34

(D.D.C. 2016) (alteration removed) (quoting Atl. Marine Constr. Co. v. United States Dist.

Court, 571 U.S. 49, 50 (2013)). Whether to transfer or dismiss the case is within the “sound

discretion of the district court.” Hamilton v. JP Morgan Chase Bank, 118 F. Supp. 3d 328, 333

(D.D.C. 2015).

III. ANALYSIS

A. APA Claim

The APA permits judicial review of agency actions when a plaintiff suffers a “legal

wrong because of agency action” or when they are “adversely affected or aggrieved” by that

action. 5 U.S.C. § 702. But Congress did not intend this “general grant of review . . . to

duplicate existing procedures for review of agency action,” or “provide additional judicial

remedies in situations where . . . Congress has provided special and adequate review

procedures.” Bowen v. Massachusetts, 487 U.S. 879, 903 (1988). When an alternative remedy

exists, a court may not review agency action under the APA or exercise its authority to “hold

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unlawful and set aside agency action.” 5 U.S.C. § 706(2). If a plaintiff fails to exhaust their

administrative remedies, the court lacks subject matter jurisdiction over the claim. Xia, 2019

WL 6311912, at *11.

In assessing whether there is an adequate, alternative remedy, courts “look for clear and

convincing evidence of legislative intent to create a special alternative remedy.” Citizens for

Resp. & Ethics in Wash. v. United States DOJ, 846 F.3d 1235, 1244 (D.C. Cir. 2017) (internal

quotations omitted). An adequate remedy exists when “Congress has provided ‘an independent

cause of action or an alternative review procedure,’” id. at 1245 (quoting El Rio Santa Cruz

Neighborhood Health Ctr., Inc. v. U.S. Dep’t of Health and Human Servs., 396 F.3d 1265, 1270

(D.C. Cir. 2005)), and where the alternative provides “for de novo district-court review of the

challenged agency action,” Garcia v. Vilsack, 563 F.3d 519, 522 (D.C. Cir. 2009) (citations

omitted). Because the APA requires only an “adequate” alternative, the purported “‘alternative

remedy need not provide relief identical to relief under the APA’ in order to have preclusive

effect.” Citizens for Resp. and Ethics in Wash., 846 F.3d at 1245 (quoting Garcia, 563 F.3d at

522).

Defendant argues that 8 U.S.C. § 1503(a) precludes review of Plaintiff’s APA claims

because the statute provides her with an adequate alternative remedy. Section 1503(a) outlines

the process by which an individual can obtain judicial review of an agency’s decision denying

them “a right or privilege as a national of the United States” because they are “not a national of

the United States.” 8 U.S.C. § 1503(a); see also Xia v. Tillerson, 865 F.3d 643, 655 (D.C. Cir.

2017) (explaining that section 1503 “provides for judicial review of denial of any ‘right or

privilege’ of citizenship, including invalidations of passports or naturalization certificates”). If,

as is the case here, an aggrieved party is “within the United States,” that individual may seek a

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judgment declaring her to be a national of the United States from the federal district court in the

district in which she resides. 8 U.S.C. § 1503(a).

The court agrees that section 1503(a) provides an adequate alternative remedy for

Plaintiff’s APA claim. Courts have consistently dismissed APA claims challenging the denial of

a passport application or a passport revocation on grounds that the holder is not a U.S. national,

reasoning that a judicial declaration of citizenship and entitlement to a passport may be directly

sought through 8 U.S.C. § 1503(a). See, e.g., Xia v. Tillerson, 865 F.3d 643, 655 (D.C. Cir.

2017) (stating that 8 U.S.C. § 1503(a) “provides plaintiffs an adequate avenue to assert their

citizenship claims”); Ali v. U.S. Dep’t of State, Case No. 20-01436 (RJL) 2021 WL 1026068, at

*3 (D.D.C. Mar. 17, 2021) (dismissing plaintiff’s APA claim challenging revocation of passport

because section 1503 provides adequate alternative remedy); Alsaidi v. U.S. Dep’t of State, 292

F. Supp. 3d 320, 326 (D.D.C. 2018) (same with respect to denial of passport renewal); Hassan v.

Holder, 793 F. Supp. 2d 440, 445-46 (D.D.C. 2011) (same with respect to passport revocation).

Indeed, in a similar case, this court held that section 1503(a) provides an adequate alternative

remedy to an APA claim where the claimant sought review of State’s decision to revoke his

passport. See Alzokari v. United States Dep’t of State, No. 20-cv-937-TSC, 2021 WL 4622459

(D.D.C. October 7, 2021). For a remedy to be “an adequate alternative,” it “need not provide

relief identical to relief under the APA, so long as it offers relief of the ‘same genre.’” Garcia,

563 F.3d at 522 (citation omitted). The relief offered by section 1503(a) is certainly of the “same

genre” of relief that Plaintiff seeks because it produces “effectively the same result—a

determination that the State Department must treat plaintiff as if [s]he is a U.S. national.” Ali,

2021 WL 1026068, at *4.

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 Plaintiff argues that because section 1503 states that individuals “may” seek a declaration

that they are a U.S. national in the district where they reside, the statute is designed to be a

permissive option, rather than a mandatory alternative to judicial review under the APA. Pl.

Opp’n. at 14. According to Plaintiff, the statute’s permissive language indicates that Congress

did not intend for section 1503(a) to be an “exclusive remedy” for someone denied a right of

citizenship. Id. In support, Plaintiff relies on case law interpreting the interplay of the APA and

two different sections of 8 U.S.C. § 1503: sections 1503(b) and (c). See Pl. Opp’n at 13-15

(citing Rusk v. Cort, 369 U.S. 367, 379 (1962) (holding that section 1503(b) and (c) are

permissive remedies to denials of rights of citizenship, not mandatory alternatives to an APA

claim); Boisson v. Pompeo, 459 F. Supp. 3d 7, 14-15 (D.D.C. 2020) (relying on Rusk v. Cort and

explaining that individuals outside the United States are not confined to sections 1503(b) and (c)

when they have been denied a right of citizenship)). Plaintiff’s argument is unavailing.

By its terms, section 1503 establishes two paths by which a person denied “a right or

privilege as a national of the United States” on the ground that they are not, in fact, a U.S.

national “may” challenge that denial. 8 U.S.C. § 1503(a)-(c). The first path—provided by

section 1503(a)—is available only to persons “within the United States,” such as Plaintiff, and it

allows such persons to initiate a declaratory judgment action against the government in federal

court. Id. § 1503(a). The second path—provided by sections 1503(b) and (c)—is available to

persons outside the United States and is considerably more complicated and onerous than the

first. Whereas a person “within the United States” may simply bring a declaratory judgment

action against the Secretary of State, a person outside the United States must obtain a certificate

of identity from a United States diplomatic or consular office, then travel to the United States to

apply to the Attorney General for admission, be subjected to removal proceedings and possible

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detention, and if granted admission, may then bring a declaratory judgment action. Id. § 1503

(a)-(c).

In Rusk v. Cort, the Supreme Court considered whether a person outside the United States

denied a right of citizenship could only challenge that denial through the procedures in sections

1503(b) and (c). Cort, 369 U.S. at 375. The Court held that the availability of relief under the

onerous provisions of sections 1503(b) and (c) does not preclude someone from bringing an APA

claim. Id. It explained that Congress did not intend for a plaintiff to have to “travel thousands of

miles, be arrested, and go to jail in order to attack an administrative finding that he is not a

citizen of the United States.” Id. Moreover, it noted that a suit under 1503(b) or (c) would

culminate in litigation against the Attorney General, rather than the Secretary of State, whose

citizenship decision the plaintiff sought to challenge. Id.

The remedial scheme provided for in section 1503(a) differs in material respects from

sections (b) and (c). Section 1503(a) does not require the aggrieved party to obtain a certificate

of identity, travel to the United States, or submit to removal proceedings and possible detention.

And it permits the aggrieved party to bring a declaratory judgment action against the Secretary of

State, rather than filing a habeas petition challenging the Attorney General’s separate decision to

deny admission into the United States. These factors “played a role in the Supreme Court’s

decision in Cort, and Cort itself did not address the availability of the APA to bring a challenge

to the revocation of a passport or other evidence of U.S. citizenship by a ‘person who is within

the United States.’” Chacoty v. Pompeo, 392 F. Supp. 3d 1, 12 (D.D.C. 2019) (quoting 8 U.S.C.

§ 1503(a)). And, as noted, courts have consistently held that § 1503(a) is not simply a

permissive remedy; rather, when a person within the United States seeks to challenge the

Secretary of State’s citizenship decision or the denial or revocation of a passport, they must do so

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under section 1503(a). Such is the case, here, and consequently the court lacks subject matter

jurisdiction over Plaintiff’s APA claim.1

B. Fifth Amendment Claim

“Procedural due process imposes constraints on governmental decisions which deprive

individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of

the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). In the

context of an agency decision, the government must provide “notice reasonably calculated, under

all the circumstances, to apprise interested parties of the pendency of the action and afford them

an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306, 314 (1950). Notice is sufficient when it “reasonably convey[s] the required

information” and allows “a reasonable time” for parties to act. Id. (citations omitted).

Plaintiff argues that State, in denying her application for a U.S. passport, infringed on her

right to engage in international travel, which she claims is a protected liberty interest, and that

State did so without affording due process required by the Fifth Amendment. Compl. ¶¶ 28-31.

According to Plaintiff, State’s procedures were insufficient because State denied her application

despite her submitting “the required documentation” and meeting her burden. Id. ¶ 30.

Defendant responds that Plaintiff fails to state a valid Fifth Amendment claim because

she does not identify what process or procedure she was denied. Def. Mot. at 11-12. In the

alternative, Defendant argues that even if Plaintiff has identified such a procedure, State’s

passport denial process was valid because it gave Plaintiff sufficient notice of the potential

1
Defendant also argues that Plaintiff’s APA claim must be dismissed because it is time-barred.
See Def. Mot. at 9-10. But because the court will grant Defendant’s motion to dismiss Plaintiff’s
APA claim because it is precluded by an adequate alternative remedy, it need not consider
whether Plaintiff’s APA claim is untimely.
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denial, allowed her to submit supplemental evidence, and gave her the opportunity to request re-

adjudication of the denial decision. Id. The court agrees.

“At a minimum, a procedural due process claim ‘requires the plaintiff to identify the

process that is due.’” Medina v. D.C., 517 F. Supp. 2d 272, 281 (D.D.C. 2007) (quoting Doe v.

Dist. of Columbia, 93 F.3d 861, 870 (D.C. Cir. 1996)); see also Elkins v. Dist. of Columbia, 690

F.3d 554, 561 (D.C. Cir. 2012) (“To state a procedural due process claim, a complaint must

suggest ‘what sort of process is due.’”). Plaintiff’s Complaint, however, is devoid of any

allegations asserting what process or procedures she was due but was not granted. Instead, her

allegations regarding the alleged due process violation consist solely of conclusory assertions

that “[i]t was a denial of Due Process . . . to deny [Plaintiff’s] application for a passport based on

not having provided enough documentation to support her claims of birth in the United States

when she in fact did provided the required documentation and met her burden,” Compl. ¶ 30, and

that she was deprived “fair and meaningful pre-deprivation procedures,” id. ¶¶ 36-37. These

bare-bones allegations do not meet the threshold requirement of identifying the process that is

due. See Gonzalez Boisson v. Pompeo, 459 F. Supp. 3d 7, 19 (D.D.C. 2020) (dismissing

plaintiff’s due process claim where “the only allegations in [the plaintiff’s] complaint regarding

[the due process] argument [were] . . . ‘that the lack of fair and meaningful post-deprivation

procedures for adjudicating the revocation of a United States passport’ violates the Due Process

Clause.”); Lewis v. Gov’t of the D.C., 161 F. Supp. 3d 15, 30–31 (D.D.C. 2015) (dismissing

plaintiff’s due process claims “[b]ecause [the complaint] is devoid of allegations as to the actual

process purportedly denied . . . , the [complaint] does not raise [plaintiff’s] procedural due

process claim ‘above the speculative level’ to the realm of plausibility.”). Consequently,

Plaintiff’s Complaint does not state a valid Fifth Amendment claim.

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 In her opposition to Defendant’s motion to dismiss, Plaintiff both changes and adds to the

allegations in her Complaint. First, while she summarily asserted in her Complaint that State’s

pre-deprivation procedures were inadequate, in her opposition brief, she shifts course and argues

that State’s post-deprivation procedures were deficient because “the Department did not provide

the Plaintiff with a hearing after denying her passport application.” Pl. Opp’n at 18. Second, for

the first time in her opposition brief, Plaintiff adds a substantive due process argument, claiming

that State’s denial of her passport application was an exercise of “governmental power that

shocks the conscience.” Id. at 19 (citing that Jacinto-Castanon de Nolasco v. U.S. Immigr. &

Customs Enf’t, 319 F. Supp. 3d 491, 499 (D.D.C. 2018)).

Plaintiff cannot amend her Complaint by adding factual allegations and claims in a

responsive brief. Middlebrooks v. Godwin Corp., 722 F. Supp. 2d 82, 87 n.4 (D.D.C. 2010),

aff’d, 424 F. App’x 10 (D.C. Cir. 2011); see also Abusadeh v. Chertoff, No. 06-cv-2014-CKK,

2007 WL 2111036, at *7 (D.D.C. July 23, 2007) (explaining that a plaintiff cannot overcome a

motion to dismiss by “simply add[ing] factual allegations sufficient to state a claim” in an

opposition); Citizens for Responsibility & Ethics in Wash. v. Dep’t of Homeland Sec., 387 F.

Supp. 3d 33, 54 (D.D.C. 2019) (rejecting plaintiff’s attempt to “recharacterize their claim against

the agency” through its opposition to defendant’s dispositive motion); Arbitraje Casa de

Cambio, S.A. de C.V. v. U.S. Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003) (“It is

axiomatic that a complaint may not be amended by the briefs in opposition to a motion to

dismiss.”). Accordingly, Plaintiff’s allegations regarding State’s post-deprivation procedures

and her substantive due process rights—raised only in opposition to Defendant’s motion to

dismiss—do not resurrect her deficient Complaint.

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 In any event, Plaintiff’s newly added allegations still fall short of establishing a valid

Fifth Amendment claim. Plaintiff is correct that due process requirements have been satisfied in

cases where the government provides a statement of reasons for a passport revocation and an

opportunity for a post-revocation hearing, see Pl. Opp’n at 18 (citing Boisson, 459 F. Supp. 3d at

18); however, Plaintiff does not point to any authority that says due process requires that the

government provide a passport applicant the opportunity for a post-denial hearing. Due process

analysis “generally requires not application of broad per se rules, but a weighing of factors.”

Agee v. Baker, 753 F. Supp. 373, 387 (D.D.C. 1990); see also Matthews v. Eldridge, 424 U.S.

319, 334 (1976) (“Due process is flexible and calls for such procedural protections as the

particular situation demands.”).

The “relevant standard for evaluating what process is due is the Matthews v. Eldridge

three-factor test.” Boisson, 459 F. Supp. 3d at 19 (citing Matthews, 424 U.S. at 335). That test

requires courts to consider (1) “the private interest that will be affected by the official action”;

(2) “the risk of an erroneous deprivation of such interest through the procedures used, and the

probable value, if any, of additional or substitute procedural safeguards”; and (3) “the

Government’s interest, including the function involved and the fiscal and administrative burdens

that the additional or substitute procedural requirement would entail.” Matthews, 424 U.S. at

335.

The private interest at stake is Plaintiff’s liberty interest in international travel using a

U.S. passport. See Compl. ¶¶ 28-29. While this interest is significant, it is “outweighed by the

government’s interest in preventing passport fraud and by the fact that the procedures afforded

adequately mitigate the risk of an erroneous deprivation of her interest.” Boisson, 459 F. Supp.

3d at 20. As to the second factor, Plaintiff does not offer any facts or argument—neither in her

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Complaint nor in her opposition brief—showing how the procedures offered were inadequate or

what probable value a post-denial hearing would provide. In 2009, after the government

informed Plaintiff that it suspected the birth attendant who filed her birth certificate of submitting

false birth records, the government—in June and December 2009—gave Plaintiff the opportunity

to submit supplemental support for her application, and allowed her to request re-adjudication,

which she did and which the government provided. Def. Mot. at Ex. 2. In 2016, the government

similarly gave Plaintiff the opportunity to submit supplemental documentation in support of her

application and conducted two phone interviews with Plaintiff. Id. at Ex. 3. Plaintiff must offer

some reason why these procedures were inadequate to protect against an erroneous deprivation

of her interest, Boisson, 459 F. Supp. 3d at 20, but she has not done so.

Plaintiff’s substantive due process argument similarly falls short. To constitute a

substantive due process violation, the official conduct must be “so egregious, so outrageous, that

it may fairly be said to shock the contemporary conscience.” Estate of Phillips v. District of

Columbia, 455 F.3d 397, 403 (D.C. Cir. 2006)). Plaintiff, for the first time in her opposition to

Defendant’s motion to dismiss, argues that “the Department’s conduct did unjustifiably rise to

the conscience-shocking level.” Pl. Opp’n at 19. In support of this argument, she makes only

the cursory assessment that she provided sufficient evidence to prove her citizenship status. Id.

at 19-20. That assessment alone, however, is not enough to state a substantive due process

claim. See Hamal v. U.S. Dep't of Homeland Sec., No. CV 19-2534 (RC), 2020 WL 2934954, at

*4 n.3 (D.D.C. June 3, 2020) (dismissing substantive due process claim where claim was based

on conclusory assertion that the denial of his I-140, Immigrant Petition for Alien Worker

violated his substantive due process right). Accordingly, to the extent Plaintiff alleges a

substantive due process violation, it is insufficient to state a valid claim for relief.

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 C. Venue

Defendant also argues that the court should dismiss this case because this court is an

improper venue and, in the alternative, that the court should transfer the case to the Western

District of Texas, where Plaintiff resides.

The court does not reach the question of whether venue here is appropriate because, as

explained above, the court lacks subject matter jurisdiction over Plaintiff’s APA claim and

Plaintiff has failed to state a valid Fifth Amendment claim. See Fermin v. United States, 268 F.

Supp. 3d 228, 233 (D.D.C. 2017) (explaining that the court need not reach venue when it has

already determined that there is no subject matter jurisdiction). Nor must the court transfer this

case to another court. The decision to dismiss or transfer a case is committed to the “sound

discretion of the district court.” Fam v. Bank of Am. NA (USA), 236 F. Supp. 3d 397, 408

(D.D.C. 2017). Dismissal “is often appropriate when the outcome is foreordained,” Simpkins v.

District of Columbia Gov’t, 108 F.3d 366, 371 (D.C. Cir. 1997), or the complaint has serious

“substantive problems,” Buchanan v. Manley, 145 F.3d 386, 389 n.6 (D.C. Cir. 1998). The

substantive problems with Plaintiff’s Complaint, detailed above, are indeed serious and counsel

in favor of dismissal. See Kungle v. State Farm, Fire & Cas. Co., 48 F. Supp. 3d 67, 76 (D.D.C.

2014) (denying request to transfer venue where the plaintiff failed to adequately plead causes of

action). Consequently, the court will not transfer Plaintiff’s lawsuit.

IV. CONCLUSION

For the reasons explained above, the court will grant the Defendant’s motion to dismiss.

Date: January 5, 2022

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge

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