Doshi v. Blinken

1

TOM DOSHI, et al., Plaintiffs, v. ANTONY BLINKEN, Secretary of State, in his Official Capacity, et al., Defendants.

Civil Action No. 23-3613 (RC)

Re Document Nos. 8, 10

United States District Court, District of Columbia

July 22, 2024

MEMORANDUM OPINION

GRANTING DEFENDANTS' PARTIAL MOTION TO DISMISS DENYING WITHOUT PREJUDICE

PLAINTIFFS' MOTION FOR PARTIAL DEFAULT AND PARTIAL SUMMARY JUDGMENT

RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Tom Doshi is an Albanian businessman and former Member of the Albanian Parliament. In April 2018, the United States Department of State designated Doshi under Section 7031(c) of the Consolidated Appropriations Act of 2017, rendering him and members of his family ineligible to enter the United States. The State Department announced that it designated Doshi due to his involvement in significant corruption. Doshi and his family members filed this lawsuit challenging the State Department's decision under the Administrative Procedure Act (“APA”) and the Due Process Clause of the Fifth Amendment. Plaintiffs additionally seek materials related to the designation under the Freedom of Information Act (“FOIA”).

Defendants move to dismiss the APA and due process claims, and Plaintiffs seek default and partial summary judgment on their FOIA claims. The Court determines that Plaintiffs' APA claims are nonjusticiable under the doctrine of consular nonreviewability, and that Plaintiffs cannot avail themselves of the Fifth Amendment Due Process clause. The Court additionally concludes that Defendants have not defaulted on the FOIA claim. Finally, because the Government has started producing documents responsive to Plaintiffs' FOIA request, summary judgment on that issue is premature. The Court will thus GRANT Defendants' partial motion to dismiss and DENY without prejudice Plaintiffs' motion for partial default and partial summary judgment.

II. FACTUAL BACKGROUND

A. Statutory Background

Section 7031(c) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2023 (Pub. L. No. 117-328, § 7031(c)(1)(A), 136 Stat. 5026 (2023)), as carried forward by the Continuing Appropriations Act, 2024 (Pub. L. No. 118-15, § 101(11), 137 Stat. 73 (2024)) (“Section 7031(c),” codified at 8 U.S.C. § 1182, statutory note) provides that “[o]fficials of foreign governments and their immediate family members” about whom the Secretary of State “has credible information have been involved” in “significant corruption” or “a gross violation of human rights” “shall be ineligible for entry into the United States.”^[1] Pub. L. No. 117-328, § 7031(c)(1)(A), 136 Stat. 5026 (2023); see also 8 U.S.C. § 1182, statutory note. An individual designated under Section 7031(c) is generally ineligible for a visa and admission into the United States, with narrow exceptions. Pub. L. No. 117-328, § 7031(c)(1)(A), (c)(2)-(3), 136 Stat. 5026 (2023); see also 8 U.S.C. § 1182, statutory note.

B. Factual Background

Tom Doshi is an Albanian national who owns an Albanian pharmaceutical manufacturing company and was a Member of Parliament at the time of his designation. Compl. ¶ 26, ECF No. 1. Plaintiffs Xhovana, Briana, James, Marcos, and Luis Doshi are Australian citizens and members of Doshi's family. Id. ¶ 29. On April 16, 2018, the State Department announced that it was publicly designating Doshi and his immediate family members under Section 7031(c) “due to his involvement in significant corruption.” Id. ¶ 32. The State Department provided no further information on its reasoning and did not explain the designation in its public annual report mandated under Section 7031(c)(5). Id. ¶¶ 32, 35.

Doshi alleges that State Department officials repeatedly cited his designation in statements encouraging the Albanian public to vote against him in parliamentary elections. Id. ¶ 33. Doshi has since engaged with officials at the U.S. Embassy in Albania, hoping to obtain information about the factual basis for his designation. Id. ¶ 36. In March of 2021, Doshi agreed to resign from his position in the Albanian Parliament in exchange for the State Department's reconsideration of his Section 7031(c) designation and with the understanding that the agency would no longer publicly criticize him. Id. ¶ 37. Despite this alleged agreement, the State Department did not waive its designation and declined to further engage with Doshi. Id. ¶ 38-40.

In February 2022, Doshi submitted a FOIA request seeking records related to his designation under Section 7031(c). Id. ¶ 41. The State Department acknowledged the request and assigned a reference number. Id. ¶ 42. At the time Plaintiffs filed the Complaint in December 2023, the agency had not produced any records. Id. ¶ 43-44. On March 29, 2024, the State Department made an initial production of records in response to Plaintiffs' FOIA request.

Defs.' Reply Mem. Partial Mot. Dismiss (“Defs.' Reply”) at 1, ECF No. 14. The production included 23 records released in part, with four other records withheld in their entirety. Ex. A to Defs.' Reply, ECF No. 14-1. As of early April 2024, the State Department planned to continue rolling productions every six weeks. Defs.' Reply at 1.

Plaintiffs filed this lawsuit on December 5, 2023. See Compl. The State Department filed a partial motion to dismiss on January 12, 2024, ECF No. 8, and Plaintiffs moved for summary judgment on February 5, 2024, ECF No. 10.

III. LEGAL STANDARD

A. Motion to Dismiss

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a claim or complaint” by asking whether the plaintiff has properly stated a claim for which relief can be granted. Sickle v. Torres Advanced Enter. Sols., LLC, 884 F.3d 338, 344-45 (D.C. Cir. 2018). In considering such a motion, the complaint must be construed “liberally in the plaintiff's favor with the benefit of all reasonable inferences derived from the facts alleged.” Stewart v. Nat'l Educ. Ass'n, 471 F.3d 169, 173 (D.C. Cir. 2006) (citing Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)). But a court may disregard “inferences drawn by a plaintiff if such inferences are unsupported by the facts set out in the complaint.” Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. Cir. 2016) (quoting Kowal, 16 F.3d at 1276) (brackets omitted).

Thus, although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), “a complaint must contain sufficient factual matter, [if] accepted as true, to state a claim to relief that is plausible on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are insufficient to withstand a motion to dismiss. Id. Similarly, there is no obligation to accept a plaintiff's legal conclusions as true, nor to presume the truth of legal conclusions that are couched as factual allegations. See Twombly, 550 U.S. at 555. Also, the Court may consider “any documents either attached to or incorporated in the complaint and matters of which [the Court] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997) (citing Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017-18 (5th Cir. 1996)).

Moreover, while justiciability issues are often decided as jurisdictional questions under Rule 12(b)(1), “certain justiciability questions are governed by Rule 12(b)(6), rather than Rule 12(b)(1)[.]” Matthew A. Goldstein, PLLC v. U.S. Dep't of State, 153 F.Supp.3d 319, 332 n.9 (D.D.C. 2016) (citations omitted), aff'd, 851 F.3d 1 (D.C. Cir. 2017) (citing Sierra Club v. Jackson, 648 F.3d 848, 853 (D.C. Cir. 2011)). The D.C. Circuit has acknowledged that it “ha[s] not always been consistent in maintaining the distinction between a claim that is not justiciable . . . and a claim over which the court lacks subject matter jurisdiction.” Id. (quoting Sierra Club, 648 F.3d at 853) (internal quotation marks omitted). Most relevantly here, while the D.C. Circuit previously used the word “jurisdiction” when describing the doctrine of consular nonreviewability, it has more recently clarified that doctrine is not jurisdictional and thus falls under the ambit of Rule 12(b)(6). Baan Rao Thai Rest. v. Pompeo, 985 F.3d 1020, 1028 (D.C. Cir. 2021).

B. Summary Judgment

The Freedom of Information Act is meant “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)). It “directs that ‘each agency, upon any request for records . . . shall make the records promptly available to any person' unless the requested records fall within one of the statute's nine exemptions.” Loving v. Dep't of Def., 550 F.3d 32, 37 (D.C. Cir. 2008) (quoting 5 U.S.C. § 552(a)(3)(a)). “Consistent with the Act's goal of broad disclosure,” those exemptions should be “given a narrow compass.” U.S. Dep't of Just. v. Tax Analysts, 492 U.S. 136, 151 (1989). “The agency bears the burden of establishing that a claimed exemption applies.” Citizens for Resp. & Ethics in Washington (“CREW”) v. U.S. Dep't of Just., 746 F.3d 1082, 1088 (D.C. Cir. 2014) (citing Dep't of Just. V. Reps. Comm. For Freedom of the Press, 489 U.S. 749, 755 (D.C. Cir. 2014)).

Because FOIA cases do not ordinarily involve disputed facts, they “are typically and appropriately decided on motions for summary judgment.” Moore v. Bush, 601 F.Supp.2d 6, 12 (D.D.C. 2009) (citations omitted). Summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material...