UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
SEAN P. GASKIN, et al.,
Plaintiffs, Civ. Action No. 15-33 (EGS) v.
STEPHEN M. MAY, et al.,
Defendants.
MEMORANDUM OPINION
I. Introduction
Plaintiffs Sean P. Gaskin (“Mr. Gaskin”); John W.
Scantlebury (“Mr. Scantlebury”); and Frederick C. Hawkesworth
(“Mr. Hawkesworth”) 1 (collectively, “Plaintiffs”) bring this
action to recover damages and obtain declaratory and injunctive
relief related to their incarceration in Barbados following an
extradition request and provisional arrest warrants in United
States v. Hawkesworth, No. 1:04-0285-EGS (D.D.C.). See Second
Supplemented Compl. & Demand for Jury Trial (“Complaint” or
“SAC”), ECF No. 47 ¶¶ 1, 81-121. 2 Plaintiffs sue the United
States as well as the following individuals in their individual
1 Mr. Hawkesworth died during this litigation. See Notice of Death of Frederick C. Hawkesworth, ECF No. 15. His wife is now representative of his estate. See SAC, ECF No. 47 ¶ 4. 2 When citing electronic filings throughout this Opinion, the
Court refers to the ECF page numbers, not the page numbers of the filed documents. 1 capacity: Stephen M. May (“Mr. May”); Gordon Patten, Jr. (“Mr.
Patten”); Jodi L. Avergun (“Ms. Avergun”); Kenneth A. Blanco
(“Mr. Blanco”); Paul M. O’Brien (“Mr. O’Brien”); Arthur Wyatt
(“Mr. Wyatt”); Christopher A. Wray (“Mr. Wray”); Alice S. Fisher
(“Ms. Fisher”); Lanny A. Breuer (“Mr. Breuer”); John D. Ashcroft
(“Mr. Ashcroft”); Alberto Gonzales (“Mr. Gonzales”); Michael B.
Mukasey (“Mr. Mukasey”); Eric H. Holder, Jr. (“Mr. Holder”); and
John Does 1-20 3 (collectively, “Individual Defendants”). Id. ¶¶
5-11.
Pending before the Court is Defendants’ Motion to Dismiss,
see Mot. Dismiss (“Defs.’ Mot.”), ECF No. 49. Upon careful
consideration of the motion, opposition, and reply thereto, the
applicable law, and the entire record herein, the Court hereby
GRANTS Defendants’ Motion to Dismiss, ECF No. 49.
II. Background
A. Factual
Mr. Gaskin, Mr. Scantlebury, and Mr. Hawkesworth were
arrested in Barbados in May 2004 based on a criminal complaint.
See SAC, ECF No. 47 ¶ 46. Later, on June 17, 2004, a federal
grand jury for the District of Columbia returned an indictment
against Plaintiffs and two other individuals on two counts of
3 The John Doe Defendants are “other federal officials or entities whose actions or inaction injured Plaintiffs under U.S. or Barbadian law, including the common law.” SAC, ECF No. 47 ¶ 10. 2 trafficking and distribution of cocaine. Id. ¶ 42. The United
States sought Plaintiffs’ extradition from Barbados. Id. ¶ 46.
Plaintiffs challenged extradition and were released on bail in
the meantime. See id. On June 9, 2011, authorities in Barbados
remanded Plaintiffs to prison while awaiting extradition. Id. ¶
60. Upon motion by the United States, the Court dismissed the
indictment on January 9, 2014. Id. ¶ 66. Plaintiffs were
released from custody in Barbados that same day. Id.
B. Procedural
Defendants filed this Motion to Dismiss on November 9,
2020. See Defs.’ Mot., ECF No. 49. On January 11, 2021,
Plaintiffs filed a brief in opposition, see Mem. Law Supp. Pls.’
Opp’n Def.’s Mot. Dismiss (“Pls.’ Opp’n”), ECF No. 50; and
Defendants replied on March 31, 2021, see Reply Supp. Defs.’
Mot. Dismiss (“Defs.’ Reply”), ECF No. 52. The motion is now
ripe and ready for adjudication.
III. Legal Standard
A. Rule 12(b)(1) Motion to Dismiss
“A federal district court may only hear a claim over which
[it] has subject matter jurisdiction; therefore, a Rule 12(b)(1)
motion for dismissal is a threshold challenge to a court’s
jurisdiction.” Gregorio v. Hoover, 238 F. Supp. 3d 37, 44
(D.D.C. 2017) (quoting Metro. Wash. Chapter v. District of
Columbia, 57 F. Supp. 3d 1, 13 (D.D.C. 2014)). To survive a Rule
3 12(b)(1) motion, the plaintiff bears the burden of establishing
that the court has jurisdiction by a preponderance of the
evidence. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992). Because Rule 12(b)(1) concerns a court’s ability to hear
a particular claim, “the court must scrutinize the plaintiff’s
allegations more closely when considering a motion to dismiss
pursuant to Rule 12(b)(1) than it would under a motion to
dismiss pursuant to Rule 12(b)(6).” Schmidt v. U.S. Capitol
Police Bd., 826 F. Supp. 2d 59, 65 (D.D.C. 2011) (citations
omitted). In so doing, the court must accept as true all of the
factual allegations in the complaint and draw all reasonable
inferences in favor of the plaintiff, but the court need not
“accept inferences unsupported by the facts alleged or legal
conclusions that are cast as factual allegations.” Rann v. Chao,
154 F. Supp. 2d 61, 64 (D.D.C. 2001). The Court may also
consider “undisputed facts evidenced in the record” as well as
its own “resolution of disputed facts.” Herbert v. Nat’l Acad.
Of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).
Faced with motions to dismiss under Rule 12(b)(1) and Rule
12(b)(6), a court should first consider the Rule 12(b)(1) motion
because “[o]nce a court determines that it lacks subject matter
jurisdiction, it can proceed no further.” Ctr. for Biological
Diversity v. Jackson, 815 F. Supp. 2d 85, 90 (D.D.C. 2011)
(citations and internal quotation marks omitted).
4 B. Rule 12(b)(6) Motion to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of a complaint.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A
complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief, in order to give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citation and internal quotation marks
omitted).
Despite this liberal pleading standard, to survive a motion
to dismiss, a complaint “must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation and internal quotation marks omitted). “In determining
whether a complaint fails to state a claim, [the Court] may
consider only the facts alleged in the complaint, any documents
either attached to or incorporated in the complaint and matters
of which [the Court] may take judicial notice.” E.E.O.C. v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.
1997). A claim is facially plausible when the facts pled in the
complaint allow the court to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. The standard does not amount to a “probability
5 requirement,” but it does require more than a “sheer possibility
that a defendant has acted unlawfully.” Id.
“[W]hen ruling on a defendant’s motion to dismiss [pursuant
to Rule 12(b)(6)], a judge must accept as true all of the
factual allegations contained in the complaint.” Atherton v.
D.C. Off. of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009)
(citation and internal quotation marks omitted). In addition,
the court must give the plaintiff the “benefit of all inferences
that can be derived from the facts alleged.” Kowal v. MCI
Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
IV. Analysis
A. The Court Will Substitute the United States in Place of the Defendants Sued in Their Individual Capacities for the Common-Law Tort Claims
The Federal Employees Liability Reform and Tort
Compensation Act of 1988, 28 U.S.C. § 2679 (“Westfall Act”),
“accords federal employees absolute immunity from common-law
tort claims arising out of acts they undertake in the course of
their official duties.” Osborn v. Haley, 549 U.S. 225, 229
(2007). Pursuant to this statute, the Attorney General may
certify “that the defendant employee was acting within the scope
of his office or employment at the time of the incident out of
which the claim arose.” 28 U.S.C. § 2679(d)(1). This
certification triggers immunity for the defendant employee,
Phillips v. Spencer, 390 F. Supp. 3d 136, 163 (D.D.C. 2019); and
6 substitution of the United States for that employee as the
party-defendant, see Wuterich v. Murtha, 562 F.3d 375, 380 (D.C.
Cir. 2009).
Here, Plaintiffs allege several common-law tort claims
against various Defendants in their individual capacity. See
SAC, ECF No. 47 ¶¶ 81-120. Defendants have submitted with their
Motion to Dismiss a Certification from Daniel F. Van Horn, Chief
of the Civil Division in the Office of the U.S. Attorney for the
District of Columbia, 4 stating that Mr. May, Mr. Patten, Ms.
Avergun, Mr. Blanco, Mr. O’Brien, Mr. Wyatt, Mr. Wray, Ms.
Fisher, Mr. Breuer, Mr. Ashcroft, Mr. Gonzales, Mr. Mukasey, and
Mr. Holder were acting within the scope of their employment at
the time of the relevant events. See Certification from Daniel
F. Van Horn, ECF No. 49-2 at 1. This certification is “prima
facie evidence that the employee[s] w[ere] acting within the
scope of [their] employment.” Council on Am. Islamic Rels. v.
Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2006). Because
Plaintiffs do not challenge whether the individual Defendants
were acting within the scope of their employment, see generally
Pls.’ Opp’n, ECF No. 50; the Court substitutes the United States
4 The Attorney General may make this certification through a delegate. See Jacobs v. Vrobel, 724 F.3d 217, 220 (D.C. Cir. 2013). 7 as defendant for the common-law tort claims, see 28 U.S.C. §
2679(d)(1).
B. The Court Does Not Have Subject Matter Jurisdiction Over Plaintiffs’ Common-Law Tort Claims
Defendants move to dismiss Counts IV, V, VI, VII, and VIII
of the Complaint for lack of subject matter jurisdiction. Defs.’
Mot., ECF No. 49 at 16-22; Defs.’ Reply, ECF No. 52 at 9-18.
Specifically, they argue that the FTCA governs this case and
that the FTCA’s waiver of sovereign immunity does not apply to
Plaintiffs’ claims. See id. Plaintiffs concede that the FTCA’s
waiver of sovereign immunity does not apply to their injuries
because those injuries arose abroad. Pls.’ Opp’n, ECF No. 50 at
10 (citing 28 U.S.C. § 2680(k); Sosa v. Alvarez-Machain, 542
U.S. 692, 700 (2004)). However, they maintain that the FTCA does
not apply to this case and that the Court otherwise has subject
matter jurisdiction over it. See id. at 14-20. For the reasons
discussed below, the Court concludes that it does not have
subject matter jurisdiction over Plaintiffs’ tort claims.
“It is axiomatic that the United States may not be sued
without its consent and that the existence of consent is a
prerequisite for jurisdiction.” United States v. Mitchell, 463
U.S. 206, 212 (1983). Plaintiffs’ common-law tort claims
therefore may proceed only if they “fall within a valid waiver
of sovereign immunity.” Sierra Club v. Wheeler, 956 F.3d 612,
8 616 (D.C. Cir. 2020). This waiver “must be ‘unequivocally
expressed in the statutory text’ and ‘strictly construed, in
terms of its scope, in favor of the sovereign.’” Tri-State Hosp.
Supply Corp. v. United States, 341 F.3d 571, 575 (D.C. Cir.
2003) (quoting Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255,
261 (1999)).
Here, Defendants identify the FTCA as the only possible
waiver of sovereign immunity for Plaintiffs’ common-law tort
claims. See Defs.’ Mot., ECF No. 49 at 17. Still, they contend
that the FTCA prevents Plaintiffs from maintaining these claims
because the law waives sovereign immunity only under limited
circumstances, which are not present here. See id. at 16-22.
Specifically, Defendants argue that the FTCA bars Plaintiffs’
tort claims because (1) the claims are untimely, see id. at 17
(citing 28 U.S.C. § 2401(b)); (2) the claims are based on
injuries that arose abroad, see id. at 18-19 (citing 28 U.S.C. §
2680(k)); (3) the claims allege that DOJ attorneys were
responsible for malicious prosecution or false imprisonment, see
id. at 20 (citing 28 U.S.C. § 2680(h)); and (4) the claims fall
under the discretionary function exception to the FTCA, see id.
at 20-22 (citing 28 U.S.C. § 2680(a)).
Plaintiffs concede that the FTCA does not waive sovereign
immunity for claims, like those here, that are based on injuries
that arose abroad. Pls.’ Opp’n, ECF No. 50 at 10 (citing 28
9 U.S.C. 2680(k); Sosa, 542 U.S. at 700). They do not offer an
alternative statute waiving sovereign immunity for common-law
tort claims against the United States. See generally id. This
failure is fatal. See Tri-State Hosp. Supply Corp., 341 F.3d at
575 (“A party bringing suit against the United States bears the
burden of proving that the government has unequivocally waived
its immunity.”).
Moreover, the Court agrees with Defendants that there is no
statutory waiver of sovereign immunity here. The FTCA is the
sole waiver of sovereign immunity for tort actions against the
United States. See Gable v. United States, 931 F. Supp. 2d 143,
147 (D.D.C. 2013); cf. Council on Am. Islamic Rels., 444 F.3d at
666. This waiver is subject to several exceptions, including the
foreign country exception. See 28 U.S.C. § 2680(k). Under the
foreign country exception, sovereign immunity is not waived for
“[a]ny claim arising in a foreign country.” Id. The Supreme
Court has clarified that this exception “bars all claims based
on any injury suffered in a foreign country, regardless of where
the tortious act or omission occurred.” Sosa, 542 U.S. at 712.
Here, it is undisputed that Plaintiffs were injured in Barbados.
See Defs.’ Mot., ECF No. 49 at 19; Pls.’ Opp’n, ECF No. 50 at
10. Plaintiffs’ common-law tort claims therefore all fall
squarely within the foreign country exception. See Sosa, 542
U.S. at 712.
10 Plaintiffs’ briefing misses the significance of this
conclusion. Because the foreign country exception applies, the
FTCA does not waive sovereign immunity for the tort claims in
this case. See id. at 700. Rather than identify another basis
for waiver of sovereign immunity, Plaintiffs argue that the FTCA
does not apply at all. See Pls.’ Opp’n, ECF No. 50 at 17-20.
They reason that Section 2679, which states that the FTCA is the
exclusive remedy for tort actions against the United States for
damages, does not apply to tort actions that fall under the
exceptions to the FTCA in Section 2680, such as the foreign
country exception, because Section 2680 states that the
provisions of the FTCA “shall not apply.” See id. at 17-20
(citing 28 U.S.C. §§ 2679, 2680). The Court rejects this
tortured reading of the FTCA. Indeed, the authority Plaintiffs
rely on—Simmons v. Himmelreich, 578 U.S. 621 (2016)—clearly
states that “[t]he dismissal of a claim in the ‘Exceptions’
section signals merely that the United States cannot be held
liable for a particular claim.” 578 U.S. at 630. Put
differently, the exceptions to the FTCA do not provide an escape
hatch from the exclusive remedy provision. And even if there
were such a hatch, Plaintiffs would still need to identify some
other waiver of sovereign immunity. See Sierra Club, 956 F.3d at
616.
11 Plaintiffs’ other arguments do not fare any better. They
argue that they may “proceed[] on a Bivens-style tort fashioned
under this Court’s common-law powers or in a pre-FTCA diversity
action based on Barbados law.” Pls.’ Opp’n, ECF No. 50 at 20
(emphasis in original). To reach this result, Plaintiffs
articulate a new theory for this Court’s common-law powers. See
id. at 22-25. They do not address the issue of sovereign
immunity—the critical issue at this juncture, see generally id.
at 20-25; and provide the Court with no basis for resolution in
their favor. As Defendants explain in their reply briefing, see
Defs.’ Reply, ECF No. 52 at 12-13; even if the Court could
fashion a new private right of action, the Court does not have
the power to imply a waiver of sovereign immunity, see Lane v.
Pena, 518 U.S. 187, 192 (1996).
Plaintiffs also attempt to save their tort claims by
turning to other jurisdictional matters. See Pls.’ Opp’n, ECF
No. 50 at 14-17. Specifically, they argue that the Court has
subject matter jurisdiction over their tort claims because the
Court has federal question jurisdiction, diversity jurisdiction,
and supplemental jurisdiction. See id. Even assuming arguendo
that they are correct on these points, the Court may not
exercise jurisdiction over the tort claims here unless there has
been a clear waiver of sovereign immunity, see FDIC v. Meyer,
510 U.S. 471, 475 (1994).
12 The FTCA is the only possible waiver of sovereign immunity
for Plaintiffs’ tort claims against the United States. Because
these claims all fall under the foreign country exception, there
is no waiver of sovereign immunity here. The Court therefore
DISMISSES Counts IV, V, VI, VII, and VIII against the United
States for lack of subject matter jurisdiction.
C. Plaintiffs Have Failed to State Bivens Claims
Defendants next move to dismiss Counts IV, V, VI, and VII
against the Defendants sued in their individual capacity for
failure to state a claim under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See
Defs.’ Mot., ECF No. 49 at 22-29. In Bivens, the Supreme Court
recognized an implied private right of action for damages
against federal officials alleged to have violated a citizen’s
constitutional rights. See Corr. Servs. Corp. v. Malesko, 534
U.S. 61, 66 (2001). Defendants argue that (1) Mr. Gaskin and Mr.
Hawkesworth cannot raise Bivens claims because they were non-
citizens and non-residents during the relevant events; and (2)
there is no basis to imply Bivens claims here. See Defs.’ Mot.,
ECF No. 49 at 22-29.
Plaintiffs concede that Bivens claims are not available
here. Pls.’ Opp’n, ECF No. 50 at 10 (citing Hernandez v. Mesa,
140 S. Ct. 735 (2020)). Accordingly, the Court DISMISSES Counts
IV, V, VI, and VII against the Defendants sued in their
13 individual capacity for failure to state a constitutional-tort
claim.
D. Plaintiffs Have Failed to State a Claim for the Remaining Counts of the Complaint
Finally, Defendants move to dismiss each Count of the
Complaint for failure to state a claim under Rule 12(b)(6). See
Defs.’ Mot., ECF No. 49 at 34-41. The Court addresses only
Counts I, II, and III here, having already dismissed Counts IV,
V, VI, VII, and VIII supra.
1. Malicious Prosecution and False Imprisonment
Defendants move to dismiss Count I of the Complaint, which
alleges two common-law torts: malicious prosecution and false
imprisonment. Defs.’ Mot., ECF No. 49 at 35-37; see SAC, ECF No.
47 ¶¶ 81-86 (using the terms “wrongful prosecution and
imprisonment”). For the reasons that follow, the Court DISMISSES
this Count for failure to state a claim.
“Under District of Columbia law, a plaintiff alleging
malicious prosecution must prove (1) a criminal proceeding
instituted or continued by the defendant against the plaintiff;
(2) termination of the proceeding in favor of the plaintiff; (3)
absence of probable cause for the proceeding; and (4) malice,
defined as ‘a primary purpose in instituting the proceeding
other than that of bringing an offender to justice.’” Sherrod v.
McHugh, 334 F. Supp. 3d 219, 254–55 (D.D.C. 2018) (quoting
14 DeWitt v. District of Columbia, 43 A.3d 291, 296 (D.C. 2012)). A
showing of probable cause is a valid defense to a malicious
prosecution claim. Id.
Under District of Columbia law, a plaintiff alleging false
imprisonment must prove “(1) detention or restraint against
one’s will within boundaries fixed by the defendant, and (2) the
unlawfulness of such restraint.” Harris v. U.S. Dep’t of
Veterans Affs., 776 F.3d 907, 911–12 (D.C. Cir. 2015) (citing
Edwards v. Okie Dokie, Inc., 473 F. Supp. 2d 31, 44 (D.D.C.
2007)). As with malicious prosecution, probable cause is a
defense to a false imprisonment claim. Id.
Defendants argue that both claims fail because there was
probable cause for Plaintiffs’ arrest, prosecution, and
imprisonment. See Defs.’ Mot., ECF No. 49 at 35-37. They point
to the fact that Plaintiffs were prosecuted and incarcerated
pursuant to an indictment returned by a federal grand jury for
the District of Columbia. Id. (citing SAC, ECF No. 47 ¶ 42).
Indeed, the Supreme Court “has held that an indictment, ‘fair
upon its face,’ and returned by a ‘properly constituted grand
jury,’ conclusively determines the existence of probable cause.”
Gerstein v. Pugh, 420 U.S. 103, 118 n.19 (1975) (quoting Ex
parte United States, 287 U.S. 241, 250 (1932)). Further,
Defendants argue that Plaintiffs have raised only conclusory
allegations as to the lack of probable cause. Defs.’ Mot., ECF
15 No. 49 at 36 (citing SAC, ECF No. 47 ¶¶ 65, 82-86, 88, 91, 98-
99).
Plaintiffs do not defend the adequacy of their factual
allegations in the Complaint. See generally Pls.’ Opp’n, ECF No.
50. Instead, they largely repeat their motion to alter the
Court’s dismissal of charges from the criminal proceedings.
Compare id. at 26-42, with Mot. Alter Dismissal to Dismissal
with Prejudice for Lack of Probable Cause of Criminal Conduct,
United States v. Hawkesworth, No. 1:04-0285-EGS (D.D.C.), ECF
No. 106. The Court has already rejected those arguments, see
Mem. Op., United States v. Hawkesworth, No. 1:04-0285-EGS
(D.D.C.), ECF No. 133; and will not reconsider its earlier
decision.
Plaintiffs have failed to rebut Defendants’ probable cause
defense; accordingly, the Court DISMISSES Count I of the
Complaint for failure to state a claim for malicious prosecution
and false imprisonment.
2. Expungement
Defendants argue that the Court should dismiss Count II of
the Complaint, which alleges an injunctive claim for
expungement, because expungement is an equitable remedy and not
a cause of action. See Defs.’ Mot., ECF No. 49 at 39-40.
Plaintiffs counter that they do not “lack a cause of action for
expungement under the equitable doctrine of Ex parte Young and
16 its modern judicial-review descendants, including the
[Administrative Procedure Act, 5 U.S.C. §§ 551-706]” and that
the Court of Appeals for the District of Columbia Circuit (“D.C.
Circuit”) has recognized this cause of action. Pls.’ Opp’n, ECF
No. 50 at 44 (citations omitted). The Court agrees with
Defendants and DISMISSES Count II.
There is “no standalone right to expungement of government
records . . . in this Circuit.” United States v. Douglas, 282 F.
Supp. 3d 275, 278 (D.D.C. 2017) (internal quotation marks
omitted) (quoting Abdelfattah v. U.S. Dep’t of Homeland Sec.,
787 F.3d 524, 536 (D.C. Cir. 2015)). Instead, the D.C. Circuit
has held that expungement is a remedy that a court should impose
“where necessary to vindicate rights secured by the Constitution
or by statute.” Chastain v. Kelley, 510 F.2d 1232, 1235 (D.C.
Cir. 1975) (citing Menard v. Saxbe, 498 F.2d 1017, 1023 (1974)).
Here, Plaintiffs have pleaded a standalone claim for
expungement. See SAC, ECF No. 47 ¶¶ 87-89. D.C. Circuit
precedent clearly forecloses this claim. See Abdelfattah, 787
F.3d at 536. Plaintiffs may not now amend the claim in their
opposition briefing to allege an Ex parte Young or
Administrative Procedure Act violation. See Budik v. Ashley, 36
F. Supp. 3d 132, 144 (D.D.C. 2014) (“It is a well-established
principle of law in this Circuit that a plaintiff may not amend
her complaint by making new allegations in her opposition
17 brief.”), aff’d sub nom. Budik v. United States, No. 14-5102,
2014 WL 6725743 (D.C. Cir. Nov. 12, 2014). The Court therefore
DISMISSES Count II of the Complaint for failure to state a
3. Right to Travel and Associate
Defendants move to dismiss Count III of the Complaint,
which alleges an injunctive claim for restrictions of the right
to travel and associate freely, because Plaintiffs have not
identified the source of these rights and because the Complaint
is “fatally conclusory.” Defs.’ Mot., ECF No. 49 at 40-41. In
their opposition briefing, Plaintiffs allege that they have a
right to travel under the First Amendment. Pls.’ Opp’n, ECF No.
50 at 44 (citing Trump v. Hawaii, 138 S. Ct. 2392, 2416 (2018)).
Further, they argue that they all have third-party standing to
assert their family members’ right to travel and that Mr.
Scantlebury has a right to visit his family in the United
States. Id. (citation omitted). Plaintiffs also seem to suggest
that they may move for leave to amend the claim. See id.
The Court agrees with Defendants that Plaintiffs have
failed to state a claim for relief. Unlike the constitutional
right to interstate travel, which “is virtually unqualified,”
Haig v. Agee, 453 U.S. 280, 307 (1981); the constitutional right
to international travel “is best described as the freedom to
travel to foreign countries, and involves, inter alia, the right
18 to own a passport,” Nattah v. Bush, 770 F. Supp. 2d 193, 205
(D.D.C. 2011) (citations and internal quotation marks omitted).
Assuming arguendo that Plaintiffs may assert third-party
standing here, they have failed to make any factual allegations
that any family member’s right to travel has been affected. See
generally SAC, ECF No. 47. Nor do they plead any facts alleging
that Mr. Scantlebury’s right to travel to the United States has
been violated. See generally id. Accordingly, the Court
DISMISSES Count III for failure to state a claim. See Iqbal, 556
U.S. at 678.
19 V. Conclusion
For the foregoing reasons, the Court GRANTS Defendants’
Motion to Dismiss, ECF No. 49.
An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge February 27, 2023