Petition for Writ of Certiorari — Weih Steve Chang, Petitioner v. United States, et al.
Supreme Court briefSep 30, 2024
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App. 1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WEIH STEVE CHANG
Plaintiff,
v.
)
)
)
)
)
)
)
UNITED STATES OF
AMERICA, et al.,
Defendants.
Civ. Action No.
22-352 (RBW)
)
)
)
)
)
MEMORANDUM OPINION
The plaintiff, Weih Steve Chang, proceeding
pro se. brings this civil action against the
defendants, the United States of America;
Christopher Wray, in his official capacity as
Director of the Federal Bureau of Investigation
(“FBI”); John Demers, in his official capacity as the
Assistant Attorney General of the United States;
Joseph R. Biden Jr., in his official capacity as
President of the United States; and unnamed FBI
agents John Doe(s) and Jane Doe. See Complaint
for Declaratory and Injunctive Relief (“Compl.”) H
54-59, ECF No. 1. The plaintiff alleges violations of
the separation of powers doctrine of the United
States Constitution, see id. H 143-47; Article II,
Section 3 of the Constitution, see id. H 143-168;
the Fourth Amendment to the Constitution, see id.
11 148-55; the Fifth Amendment to the
Constitution, see id. 11 156-168; the Fourteenth
Amendment to the Constitution, see id. H 162-68;
and the Administrative Procedures Act (“APA”), 5
U.S.C. § 706(2)(A)-(D), see ii H 169-887. 1
1 Much of the legal arguments advanced by the plaintiff are
difficult to discern, but the Court has nonetheless done its
best to construe what legal positions are being alleged by the
App. 2
Currently pending
before the Court is the
defendants’ motion to dismiss the plaintiffs
Complaint pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). See Defendant’s
Motion to Dismiss (“Defs.’ Mot.”) at 1, ECF No. 9.
Upon careful consideration of the parties’
submissions,2 the Court concludes for the following
reasons that it must grant the defendants’ motion
to dismiss.
I.
A.
BACKGROUND
The China Initiative
On November 1, 2018, then-Attorney
General Jefferson Sessions announced a new law
enforcement effort dubbed the “China Initiative,”
stating that
a report from U.S. Trade Representative
Robert Lighthizer found that Chinese
sponsorship of hacking into American
businesses and commercial networks has
been taking place for more than a decade
and is a serious problem that burdens
American commerce. The problem has
been growing rapidly, and along with
China’s other unfair trade practices, it
poses a real and illegal threat to our
nation’s economic prosperity and
competitiveness.
Attorney General Jeff Sessions Announces New
Initiative to Combat Chinese Economic Espionage.
U.S.
Dep’t
of
Just.
(Nov.
1,
2018),
plaintiff.
2 In addition to the filings already identified, the Court
considered the following submissions in rendering its
decision: (1) the Memorandum in Support of Defendants’
Motion to Dismiss (“Defs.’ Mem.”), ECF No. 9-1; (2) the
Plaintiffs Opposition to Defendants’ Motion to Dismiss (“Pl.’s
Opp’n”), ECF No. 11; and (3) the Reply in Support of
Defendants’ Motion to Dismiss (“Defs.’ Reply”), ECF No. 12.
App. 3
https ://www .j ustice. gov/op a/speech/attorney genera
1-jeff-sessions-announces-new-initiative-combatchinese -economic-e spionage.3
In the same remarks, then-Attorney General
Sessions announced that the China Initiative,
under the leadership of the Department of Justice
(“Department”) and the FBI, was intended to
“identify priority Chinese trade theft cases, ensure
that we have enough resources dedicated to the[se
cases], and make sure that we bring the[se cases]
to an appropriate conclusion quickly and
effectively.” Id. The Department webpage
dedicated to the China Initiative further describes
the effort as follows:
About [eighty] percent of all economic
espionage prosecutions brought by the [ ]
Department [ ] allege conduct that would
benefit the Chinese state, and there is at
least some nexus to China in around
[sixty] percent of all trade secret theft
cases. The Department's] [ ] China
Initiative reflects the strategic priority of
countering Chinese national security
threats and reinforces the President’s
overall national security strategy. The
Initiative was launched against the
background of previous findings by the
Administration
concerning
China’s
practices .... In addition to identifying
and prosecuting those engaged in trade
secret theft, hacking, and economic
espionage, the Initiative focuses on
protecting our critical infrastructure
against external threats through foreign
3 The Court takes judicial notice of the transcript of
Attorney General Session’s remarks because it is available on
the Department’s public website. See United States ex rel.
Groat v. Boston Heart Diagnostics Corp., 255 F. Supp. 3d 13,
24n.7 (D.D.C. 2017) (Walton, J.) (“[CJourts in this jurisdiction
have frequently taken judicial notice of information posted on
official pubhc websites of government agencies.” (quoting
Pharm. Research & Mfrs. of Am. V. U.S. Dep’t of Health &
Human Servs., 43 F. Supp. 3d 28, 33 (D.D.C. 2014))).
App. 4
direct investment and supply chain
compromises, as well as combatting
covert efforts to influence the American
public and policymakers without proper
transparency.
Information About the Department of Justice’s
China Initiative and A Compilation of China
Related Prosecutions Since 2018. U.S. Dep’t of
Just.,
http s://www.j ustice. gov/archives/nsd/informationabout-department-justice-s-china-initiativeandcompilation-china-related (last updated Nov. 19,
2021).4
On February 23, 2022, Assistant Attorney
General Matthew Olsen announced that the China
Initiative had been terminated following a review
of the program conducted “soon after [he] took
office.” Assistant Attorney General Matthew Olsen
Delivers Remarks on Countering Nation-State
Threats. U.S. Dep’t of Just. (Feb. 23, 2022),
https ://www .j ustice. gov/op a/speech/assistantattorney-general-matthew-olsen-deliversremarkscountering-nation-state-threats. Assistant
Attorney General Olson stated that the review was
spurred by “concerns from the civil rights
community that the ‘China Initiative’ fueled a
narrative of intolerance and bias” against Chinese
people or people of Chinese descent. IcL Assistant
Attorney General Olson further stated that the
review conducted by his office evaluated
whether
[the
China
Initiative]
framework still best serves the strategic
needs and priorities of the [Department.
While I remain focused on the evolving,
significant threat that the government of
China poses, I have concluded that [the
China Initiative] is not the right
4 For the reasons set forth in footnote 3, supra, the Court
takes judicial notice of the Department’s webpage dedicated
to information about the China Initiative because it is
available on the Department’s public website.
App. 5
approach .... I want to emphasize my
belief that the [Department's actions
have been driven by genuine national
security concerns. But by grouping cases
under the China Initiative rubric, we
helped give rise to a harmful perception
that the [Department applies a lower
standard to investigate and prosecute
criminal conduct related to that country
or that we in some way view people with
racial, ethnic or familial ties to China
differently .... The [Department is
committed to protecting the civil rights
of everyone in our country. But this
erosion of trust in the [Department can
impair our national security by
alienating us from the people we serve,
including the very communities the
[Chinese] government targets as victims.
Id. In addition, Assistant Attorney General Olsen
emphasized that moving forward, the Department
was
focused on the actions of the [Chinese]
government, the Chinese Communist
Party, and their agents—not the Chinese
people or those of Chinese descent. As we
talk about the threats that the [Chinese]
government poses to the United States,
we must never lose sight of that
fundamental distinction. We must
always be vigilant to ensure that no one
is treated differently based on race,
ethnicity, familial ties, or national
origin.
Id.
B.
Factual Background
The following allegations are taken from the
plaintiffs Complaint unless otherwise specified.
See Compl. The plaintiff alleges that “from
App. 6
November 2016 to November 2019,” he was
employed by a private health insurance company
and “worked remotely at his residence in
Delaware.” IcL Tf 34. In August 2019, the plaintiff
alleges that his employer “went through a major
[information technology (‘IT’)] upgrade[,]” which
resulted in the plaintiff being “ issued [a] new
laptop [ ]” that the plaintiff alleges he was
instructed to “test[ ] to assure that [the laptop was]
compliant with the security standards [of] the older
company laptops.” IcL H 35. The plaintiffs testing
allegedly showed that the new laptop “was not as
secure[ ] as the older laptop,” icL
36, so the
plaintiff “decided to experiment^]” icL ^ 36, with
the new laptop “by running a separate operating
system for personal use[,]” icL
37. On or about
November 5, 2019, “this use was detected” by
plaintiffs employer, and “the Human Resources
(‘HR’) and IT Security Departments contacted [the
p]laintiff,” about what he had done and he “readily
admitted that he had used the computer for
personal matters with the separate operating
system he had installed on the new laptop and was
ready to accept applicable consequences, including
termination.” IcL On November 8, 2019, the
plaintiff “readily agreed” to his employer’s
instructions “to return all company equipment^]”
Id.
38. The plaintiffs employer also requested
that the plaintiff “bring in his own external drive(s)
when returning the company equipment.” IcL The
plaintiff “returned the [employer’s] equipment,
including both the old and new laptops, to [the
employer’s] Chief Security Officer,” at the
employer’s headquarters on November 8, 2019. IcL
f 39. However, the Chief Security Officer “did not
ask for any of [p]laintiffs personal belongings.” Id.
The plaintiff further alleges that “Jb]etween
November 8[] [, 2019] and November 15[] [, 2019],
HR [personnel] contacted [the p]laintiff and
demanded that he surrender his own external
drive(s) to the company.” IcL
40. The plaintiff
refused to give the employer his personal drives
and “offered to come to the company headquarters
App. 7
in person to sign an affidavit attesting that no
disclosure of [protected health information] had
ever occurred.” IcL
On November 15, 2019, the plaintiff
“received a phone call from a number with a 412
area code” on a phone whose number the plaintiff
had not registered with his former employer. IcL f
41. According to the plaintiff, “[t]he caller
demanded that [the pjlaintiff surrender his
external drive(s).” IcL After the plaintiff hung up,
the caller called again, at which point the plaintiff
“promised to call back later in the evening when he
returned to his residence.” IcL The plaintiff
returned the call later that evening and the person
he spoke to “identified himself as someone from a
law enforcement agency from Pittsburgh],
Pennsylvania and once again, demanded that [the
p]laintiff return his personal drive (s) to the [former
employer].” Id. The plaintiff “suspected that he was
being lied to and that the caller was merely
pretending to be a law enforcement officer.” hi
The plaintiff alleges that his former
employer “used [his] ethnicity and national origin
against him to classify him as a Chinese
‘nontraditional collector’ of healthcare data in the
United States and to assume he had committed a
crime.” IcL If 44. The plaintiff claims that his former
employer then “enlisted the aid of the FBI[,] which
unquestioningly provided assistance[ ]” to the
former employer. Id. The plaintiff further alleges
that, “[o]n November 27, 2019, ‘Squadron C’ of the
[FBI],” icL If 4, executed a search warrant “of [the]
plaintiffs residence” and seized “over 125
electronic devices,” idL f 33, that the FBI “retains
to this day[,]” kL | 44. OThe plaintiff further alleges
that, on August 7, 2020, the FBI “sought another
search warrant for [the p]laintiff s Google account.”
lit 33.
“[The p]laintiff requested a copy of the first
search warrant immediately after the raid[, but
t]he FBI refused, repeatedly requesting that
[p]laintiff be interviewed by its agents.” IcL | 50.
“In October 2020[,] and nearly a year after the
App. 8
predawn raid, [the p]laintiff learned that the [FBI]
sought [the] second search warrant for his Google
account. [The p]laintiff again demanded a copy of
the first search warrant and the government
agreed this time.” hh U 51. Upon reviewing the copy
of the search warrant, the plaintiff alleges that
“[he] immediately identified [ ] three demonstrably
false statements . . . that [ ] [his former employer
and the FBI used to] fraudulently establish[
]probable cause.” IcL The plaintiff therefore
contends that the FBI “willfully and deliberately
fabricate [d] evidence to support the first search
warrant on [the
p]laintiffs residence.” IcL f 152. The plaintiff
further asserts that, “[b]ut for his Chinese
ancestry, the FBI would never have issued the
search warrant, 5 nor would it have sought
additional evidence against [the p]laintiff without
first investigating the false allegations made by
[the plaintiffs former employer].” hi f 33.
The plaintiff alleges that he was “one of the
many thousands of suspects discriminated against
and illegally targeted under the ‘China Initiative,’”
icl H 4, and that,
[o]n November 27, 2019, the FBI
conducted a predawn raid of [his]
residence on behalf of a private sector
employer after [his former employer]
fabricated
a
claim
of
hacking
government computers and a claim of
disclosing protected health information
(“PHI”) by [the p]laintiff. The FBI,
without further investigation, used the
[former employee’s false, uninvestigated
claims as probable cause for the search
warrant. By August 7, 2020, after the
FBI had obviously failed to gather
5 Although the plaintiff alleges that the FBI “issued the
search warrant,” id. T] 33, that apparently is the result of his
misunderstanding of the warrant acquisition process, as the
FBI can only seek to obtain a warrant, which can only be
issued by a court.
App. 9
sufficient evidence from over 125
electronic devices seized in the raid, it
sought another search warrant for [the
p]laintiffs Google account. But for his
Chinese ancestry, the FBI would never
have issued the search warrant, nor
would it have sought additional evidence
against [the p]laintiff without first
investigating the false allegations made
by a private company.
Idi If 33. According to the plaintiff, “the raid at [hi]s
residence and subsequent FBI fishing expeditions
are supervised and coordinated by the “China
Initiative Working Group[ ] in Washington D.C.
because [the p]laintiffs extensive access to
healthcare data is of great interest to the group.”
Id. Tf 26. The plaintiff alleges that “over many
months to the present day, [he] has seen a series of
persistent email messages from a hacker group
inviting him to attend its events
online or in person,” which the plaintiff suspects
are “likely phishing attacks from the FBI, or its
intelligence assets.” hh 1 52.
Moreover, the plaintiff alleges that pursuant
to the China Initiative “the [former] governmentsponsored
program
institutionalizes
discrimination based on race [and was] falsely
disguised as a national security program,” id. If 3.
and which resulted in the “FBI [ ] targeting]
citizens because of their Chinese ancestry[,]” icL ^
11. According to the plaintiff, the FBI’s “decadeslong practice of racial-profiling of persons including
those of Chinese heritage exemplifies the
historic[al] and habitual abuse of its powers.” IcL f
16. In support of this claim, the plaintiff states
that,
[o]n February 13, 2018, [defendant]
Wray told the Senate Intelligence
Committee that China had sent its spies
as “[n]ontraditional [c]ollectors[,]”[ ] i.e.,
non-spies can be suspected to be spies
App. 10
simply because of their ancestry or any
other links they may have to China. The
[FBI] is to “view the China threat as not
just a whole of government threat but a
whole of society threat on their end . . .
[,] it’s going to take a whole of society
response by us. [So] it’s not just the
intelligence community, but it’s raising
awareness within our academic sector,
within our private sector as part of the
defense.
Id. | 22 (quoting Open Hearing on Worldwide
Threats: Hearing Before the S. Select Comm, on
Intel., 115th Cong. 45, 50 (2018) (statement of
Christopher Wray, Director, Fed. Bureau of
Investigation)).
The plaintiff further alleges that
[t]he “Whole-of-Society Response” is a set
of abusive rules, regulations and policies
promulgated by the “China Initiative
Working Group” to entice, encourage, or
compel government employers and
private sector employers, including
academics, to form a surveillance society.
This opens the door to unfettered and
uncontrolled spying on persons of
Chinese heritage and confers on those
persons doing so the aura of protecting
national
security.
Like
COINTELPRO [6], the “China Initiative”
uses university administrators and other
private employers as informants and
assets acting as the eyes and ears of the
6 For background information regarding COINTELPRO, see
generally COINTELPRO. Fed. Bureau of Investigations,
https://vault fbi.gov/cointel-pro (last accessed July 8, 2023).
For the reasons set forth in footnote 3, supra, the Court takes
judicial notice of the FBI’s webpage containing information
regarding COINTELPRO because it is available on the FBI’s
public
website.
App. 11
FBI
looking
collectors[.]”
for
“nontraditional
IcL If 23.
The plaintiff claims that “as the government
did in Korematsuf v. United States. 323 U.S. 214
(1944)], [the defendants knowingly, willfully, and
deliberately devised and executed a racially
predicated national security program of selective
prosecution by designating an entire ethnic group
as ‘fraudsters[,]’[ ] ‘spies[,]’[ ] ‘traitors[,]’[ ] or
‘thieves[.]’[ ]” IcL H 114.7
The plaintiff further alleges that
Korematsu and the case at bar both
illustrate how the President and the
Executive Branch have abused and
stretched their power and authority by
issuing unlawful executive orders,
launching arbitrary and capricious
agency
initiatives
of
selective
prosecution
of
minorities,
and
promulgating abusive rules, regulations
and policies
which are
facially
discriminatory.
lit 8.
The plaintiff also claims that,
[a]s a direct and proximate result of [the
defendants’ decades-long practice of
racial profiling since Korematsu. all of
which predate the “China Initiative”,
[the p]laintiff suffered substantial
damages, including loss of liberty,
invasion
of
privacy,
substantial
emotional distress and harm, loss of
7 Korematsu is the infamous decision upholding the forcible
relocation of Japanese-Americans to concentration camps
during World War II. See generally Korematsu. 323 U.S. 214.
App. 12
reputation, and physical harms caused
by [ ] emotional distress, including
difficulty sleeping, nightmares, difficulty
focusing on daily tasks, and changed
behavior in work practices. In addition,
[the p]laintiff has suffered substantial
economic damage, including loss of
income and loss of future earnings, and
costs and expenses of coping with [the
defendants’ ongoing unlawful conduct.
Lit 105.
C.
Procedural Background
On January 28, 2022, the plaintiff filed his
Complaint, see Compl. at 1, alleging, as noted
earlier, constitutional violations of (1) the
separation of powers doctrine, see il H 143-47; (2)
Article II, Section 3 of the Constitution, see il tl
143-47, 148-55, 156-61, 162-68; (3) the Fourth
Amendment, see id. 11 148-55; (4) the Fifth
Amendment, see il 11 156-61, 162-68; (5) the
Fourteenth Amendment, see il 11 162-68; and (6)
violation of the APA, see il H 169-73, 174-80,
181-87. In response, on August 19, 2022, President
Biden, Wray, Demers, and the United States filed
their motion to dismiss.8 See Defs.’ Mot. at 2. On
September 23, 2022, the plaintiff filed his
opposition to the defendants’ motion, see Pl.’s
Opp’n at 1, and on November 4, 2022, the
defendants filed their reply in support of their
motion, see Defs.’ Reply at 5.
II.
STANDARDS OF REVIEW
8 Although the plaintiff also brought this suit against “John
and Jane Doe(s)[,]” Compl. Tf 59, who are purportedly “federal
law enforcement agents, supervisors, and other officials who
participated in the . . . investigation of [the p]laintiff[,]” icL,
the motion to dismiss was not fifed on behalf of the
aforementioned John and Jane Doe defendants, see Defs.’
Mem. at 1 n.l.
App. 13
A.
Rule 12(b)(1)
“Federal [district] courts are courts of
limited jurisdiction^]” Kokkonen v. Guardian Life
Ins. Co. of Am.. 511 U.S. 375, 377 (1994), and “[a]
motion for dismissal under [Federal Rule of Civil
Procedure] 12(b)(1) ‘presents a threshold challenge
to the [C]ourt’s juris diction [,]’” Morrow v. United
States. 723 F. Supp. 2d 71, 75 (D.D.C. 2010)
(Walton, J.) (quoting Haase v. Sessions. 835 F.2d
902, 906 (D.C. Cir. 1987)). Thus, the Court is
obligated to dismiss a claim if it “lack[s] ... subjectmatter jurisdiction.” Fed. R. Civ. P. 12(b)(1).
Because “[i]t is to be presumed that a cause lies
outside [the Court’s] limited jurisdiction,”
Kokkonen, 511 U.S. at 377, the plaintiff bears the
burden of establishing that the Court has subjectmatter jurisdiction, see Lujan v. Defs. of Wildlife
504 U.S. 555, 561 (1992).
“In deciding a [Rule] 12(b)(1) motion, the
[C]ourt need not limit itself to the allegations of the
complaint.” Grand Lodge of the Fraternal Ord. of
Police v. Ashcroft. 185 F. Supp. 2d 9, 14 (D.D.C.
2001). Rather, the “[C]ourt 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); see Jerome Stevens Pharms., Inc, v.
Food & Drug Admin.. 402 F.3d 1249, 1253 (D.C.
Cir. 2005). Additionally, the Court must “assume
the truth of all material factual allegations in the
complaint and ‘construe the complaint liberally,
granting [the] plaintiff the benefit of all inferences
that can be derived from the facts alleged[.]”’ Am.
Nat’l Ins. Co. v. Fed. Deposit Ins. Corn.. 642 F.3d
1137, 1139 (D.C. Cir. 2011) (quoting Thomas v.
Princini. 394 F.3d 970, 972 (D.C. Cir. 2005)).
However, “the [pjlaintiffs factual allegations in the
complaint. . . will bear closer scrutiny in resolving
a [Rule] 12(b)(1) motion than in resolving a [Rule]
12(b)(6) motion for failure to state a claim.” Grand
Lodge. 185 F. Supp. 2d at 13-14 (first and second
App. 14
alterations in original) (internal quotation marks
omitted).
B.
Rule 12(b)(6)
A motion to dismiss under Rule 12(b)(6) tests
whether a complaint has properly “state[d] a claim
upon which relief can be granted[.]” Fed. R. Civ. P.
12(b)(6). “To survive a motion to dismiss [under
Rule 12(b)(6)], 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) (quoting Bell Atl.
Corn, v. Twomblv. 550 U.S. 544, 570 (2007)). A
claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw [a]
reasonable inference that the defendant is liable for
the misconduct alleged.” Ich (citing Twomblv. 550
U.S. at 556).
In evaluating a motion to dismiss under Rule
12(b)(6), “the Court must construe 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, 476 (D.C. Cir. 2012) (internal quotation
marks omitted). While the Court must “assume
[the] veracity” of any “well-pleaded factual
allegations” in a complaint, conclusory allegations
“are not entitled to the assumption of truth.” Iqbal.
556 U.S. at 679. Thus, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere
conclusory statements, do not suffice.” IcL at 678
(citing Twomblv. 550 U.S. at 555). Also, the Court
need not “accept legal conclusions cast as factual
allegations” or “inferences drawn by [the] plaintiff
if those inferences are not supported by the facts
set out in the complaint[.]” Hettinga. 677 F.3d at
476. 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.” Equal
Emp. Opportunity Comm’n v. St. Francis Xavier
Parochial Sch.. 117 F.3d 621, 624 (D.C. Cir. 1997).
App. 15
C.
Pro Se Complaints
Pro se complaints are held to “less stringent
standards than formal pleadings drafted by
lawyers.” Haines v. Kerner. 404 U.S. 519, 520
(1972). See also Abdelfattah v. U.S. Dep’t of
Homeland Sec.. 787 F.3d 524, 533 (D.C. Cir. 2015)
(“A document filed pro se is to be liberally
construed, . . . [thus, ]a pro se complaint, however
inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by
lawyers.”) (quoting Erickson v. Pardus. 551 U.S.
89, 94 (2007)). However, “even a pro se complainant
must plead ‘factual matter’ that permits the court
to infer ‘more than the mere possibility of
misconduct.’” Atherton v. District of Columbia. 567
F.3d 672, 681-82 (D.C. Cir. 2009) (quoting Iqbal.
556 U.S. at 679. Furthermore, “[a] plaintiffs pro se
status” means that “all filings by [the plaintiff]
should be read together in assessing whether [his
C]omplaint[] should be dismissed.” Khatri v. Bd. of
Trs. of Univ. of Dist. of Columbia. No. 19-cv-2644,
2021 WL 2403087, at *6 (D.D.C. June 11, 2021)
(Walton, J.) (internal citation omitted); see also
Richardson v. United States. 193 F.3d 545, 548
(D.C. Cir. 1999) (“[T]he [district [c]ourt should
have read all of [the pro se plaintiff’s filings
together before dismissing this case for lack of
subject matter jurisdiction.”).
III.
ANALYSIS
The defendants move to dismiss the
plaintiffs Complaint, arguing that (1) “the Court
lacks jurisdiction over the Complaint because there
exists no case or controversy” as to the plaintiffs
claims based on Korematsu. Defs.’ Mem. at 10; (2)
the Court lacks jurisdiction over the Complaint
because the plaintiffs claims about the China
Initiative are moot, see icL at 12; and (3) “[the
pjlaintiff pleads no facts sufficient to state a claim
for an unlawful search and seizure[,]” icL at 32; and
App. 16
(4) “[the p]laintiff fails to state a due process claim
under the Fifth Amendment^]” kL at 34.9 The
defendants also argue that this Court “is not the
appropriate venue for [the p]laintiff to seek return
of his property” seized by the FBI. hh at 14.
In response, the plaintiff argues that (1)
“racial stereotypes embedded in . . . Korematsu
remain[s] the controversial legal bas[i]s upon
which [the defendants will continue to rely to
discriminate against [the p]laintiff[,]” Pl.’s Opp’n at
12; (2) that “the ‘China Initiative’ [ ] caused and
continues to cause massive disruptions on
hundreds of thousands of Americans whose affairs
are controlled or regulated by [the defendants,” kb
at 15; (3) that “[t]he FBI [ ] deliberately failed to
verify the [employer’s] ‘hacking’ claim to falsely
elevate the validity and urgency of its search
warranty” icL at 25—26; (4) that “[t]he ‘Whole-ofSociety Response’ called for public-private
partnership to surveille persons of Chinese
heritage for espionage and economic espionage
activities which imp lie [d] multiple levels of due
process deprivation[,]” kb at 27, and (5) that the
Court should postpone ruling on the plaintiffs
request to return his property because the property
is “not essential for seeking declaratory judgment
and other injunctive relief,” kb at 13.
Because “a court must first establish as an
antecedent matter that it has jurisdiction^]”
Kaplan v. Cent. Bank of the Islamic Republic of
Iran. 896 F.3d 501, 510 (D.C. Cir. 2018), the Court
begins its analysis by addressing whether it has
jurisdiction—namely, whether there is a case or
controversy as required by Article III of the
Constitution.
9 President Biden also moves to dismiss the plaintiffs
Complaint because “[t]here is no basis for this Court to order
equitable rebef against the President.” Defs.’ Mem. at 9. The
President is correct, Newdow v. Roberts, 603 F.3d 1002, 1013
(D.C. Cir. 2010) (“With regard to the President, courts do not
have jurisdiction to enjoin him[.]”), and the Court ultimately
concludes that the defendants, including the President,
prevail on all of the plaintiff s claims for the reasons discussed
below, infra.
App. 17
A.
The Plaintiffs Korematsu Claim
The Court first addresses whether it has
subject-matter jurisdiction to entertain the
plaintiffs request that the Court overturn
Korematsu. While the Court ultimately resolves
the issue on jurisdictional grounds, the Court
seriously questions whether Korematsu remains
good law considering what the Supreme Court said
about the case in what is arguably only dicta in
Trump v. Hawaii. 138 S. Ct. 2392, 2424 (2018)
(“[T]he dissent’s reference to Korematsu . . . affords
this Court the opportunity to make express what is
already obvious: Korematsu was gravely wrong the
day it was decided, has been overruled in the court
of history, and—to be clear—has no place in law
under the Constitution.’”) (quoting Korematsu, 323
U.S. at 248 (Jackson, J., dissenting)).
The defendants argue that the plaintiffs
claim based on Korematsu must be dismissed
because the claim fails to raise a “case or
controversy” as Article III of the Constitution
requires. Defs.’ Mem. at 10. In response, the
plaintiff argues that “racial stereotypes embedded
in . . . Korematsu remain[s] the controversial legal
bas[i]s upon which [the defendants will continue to
rely to discriminate against [the pjlaintiff.” Pl.’s
Opp’n at 12. For the following reasons, the Court
concludes that it lacks subject-matter jurisdiction
over the plaintiffs claim based on Korematsu.
“Article III of the Constitution confines the
federal courts to adjudicating actual ‘cases’ and
‘controversies.’” Allen v. Wright. 468 U.S. 737, 750
(1984). “In an attempt to give meaning to Article
Ill’s case-or-controversy requirement, the courts
have developed a series of principles termed
‘justiciability doctrines,’ among which are
standing[,] ripeness, mootness, and the political
question doctrine.” Nat’l Treasury Emps. Union v.
United States. 101 F.3d 1423, 1427 (D.C. Cir.
1996). If a plaintiff lacks Article III standing, a
district court
App. 18
need not delve into [a plaintiffs] myriad
constitutional and statutory claims . . .
because a court may not resolve
contested questions of law when its
jurisdiction is in doubt, as [hjypothetical
jurisdiction produces nothing more than
a hypothetical judgment—which comes
to the same thing as an advisory opinion,
disapproved by [the Supreme] Court
from the beginning.
Am. Freedom L. Ctr. v. Obama. 106 F. Supp. 3d
104, 108 (D.D.C. 2015).
[T]he
irreducible
constitutional
minimum of standing contains three
elements. First, the plaintiff must have
suffered an “injury in fact”—an invasion
of a legally protected interest which is (a)
concrete and particularized, and (b)
“actual or imminent, not ‘conjectural’ or
‘hypothetical^]”’ Second, there must be a
causal connection between the injury
and the conduct complained of—the
injury has to be “fairly . . . trace [able] to
the challenged action of the defendant,
and not . . ,th[e] result [of] the
independent action of some third party
not before the court.” Third, it must be
“likely,”
as
opposed
to
merely
“speculative,” that the injury will be
“redressed by a favorable decision.”
Lujan, 504 U.S. at 560-61 (second, third, fourth,
and fifth alterations in original) (citations omitted).
“The absence of any one of these three elements
defeats standing.” Newdow v. Roberts. 603 F.3d
1002, 1010 (D.C. Cir. 2010).
Here, the Court concludes that the plaintiff
has not established that his alleged injury is
“concrete and particularized.” Lujan. 504 U.S. at
App. 19
560. To be sufficiently “particularized,” the alleged
injury “must affect the plaintiff in a personal and
individual way.” IcL at 560 n.l. The Supreme Court
has
consistently held that a plaintiff raising
only a generally available grievance
about government—claiming only harm
to his and every citizen’s interest in
proper application of the Constitution
and laws, and seeking relief that no more
directly and tangibly benefits him than it
does the public at large—does not state
an Article III case or controversy.
Id. at 573-74. Further, “[t]he desire to obtain
[sweeping relief] cannot be accepted as a substitute
for compliance with the general rule that the
complainant must present facts sufficient to show
that his individual need requires the remedy for
which he asks.” Schlesinger v. Reservists Cmte. to
Stop the War. 418 U.S. 208, 221-22 (1978).
Here, the plaintiff requests that this Court
entertain his request to overturn Korematsu
because he contends that the Supreme Court’s
holding in Korematsu “conferred] unrestricted war
powers on the government,” icL H 64, “established
the “Separate but Equal” doctrine targeting Asian
Americans under color of national security,” icL
81, and permitted the FBI to engage in a “decadeslong practice of racial-profiling of persons including
those of Chinese heritage[,]” icL If 16. However, as
the government correctly argues, see Defs.’ Mem.
at 11, these alleged harms are “nothing more than
a generalized grievance [that conceivably might be]
shared in substantially equal measure by all or a
large class of citizens,” which, without more,
“normally does not warrant exercise of
jurisdiction.” Williams v. Lew. 77 F. Supp. 3d 129,
134 (D.D.C. 2015), affd, 819 F.3d 466 (D.C. Cir.
2016) (internal quotation marks omitted).
Furthermore, “even when [the Supreme Court has]
allowed litigants to assert the interests of others,
App. 20
the litigants themselves still must have suffered an
injury in fact, thus giving [them] a sufficiently
concrete interest in the outcome of the issue in
dispute.” Hollingsworth v. Perry. 570 U.S. 693, 708
(2013) (internal quotation marks omitted).
Although asserting that the holding in Korematsu
“justified discriminatory treatment of inhabitants
of Puerto Rico and Japanese[-JAmericans,” Pl.’s
Opp’n at 2, the plaintiff has not provided a factual
basis to show that he has been harmed by the
Korematsu holding in a “personal and individual
way,” Lujan. 504 U.S. at 560 n.l. Thus, the plaintiff
has not alleged an “injury in fact” that would “giv[e]
[him] a sufficiently concrete interest in the outcome
of [overturning Korematsu] Hollingsworth. 570
U.S. at 708: see also Menoken v. Miles. 270 F. Supp.
3d 200, 212 (D.D.C. 2017) (“[The plaintiffs] interest
in protecting herself and the public from the
executive branch’s alleged unwillingness to follow
the law [ ] does not constitute a concrete injury
sufficient for Article III standing.”); Common
Purpose USA, Inc, v. Obama. 227 F. Supp 3d 21, 27
(D.D.C. 2016) (“The plaintiffs complaint is devoid
of any concrete allegations, such as specific actions
of the various [defendants or specific harms
suffered by [the plaintiff]”).
Because the plaintiff has failed to establish
the existence of “[an injury in fact] sufficient to
create a case or controversy under Article III,”
Hollingsworth. 570 U.S. at 694, the plaintiff does
not have standing to pursue this claim.
Accordingly, the Court concludes that it lacks
subject-matter jurisdiction to even consider the
relief of overturning Korematsu as requested by
the plaintiff.10 See Fed. R. Civ. P. 12(b)(1) (stating
that the Court is obligated to dismiss a claim if it
“lack[s] . . . subject-matter jurisdiction.”).
10 To be clear, the Court emphasizes that even if it could
exercise jurisdiction, the plaintiff fails to address what
authority the Court would have to overturn a decision of the
Supreme Court if in fact consideration of arguments based on
Korematsu have any merit today.
App. 21
B.
The Plaintiffs China Initiative Claims
The Court now turns to the additional
jurisdictional issue of whether the plaintiffs claims
regarding the China Initiative are moot. Much of
the plaintiffs allegations stem from constitutional
challenges under the China Initiative, see
generally Compl., however the plaintiff also makes
specific allegations regarding the China Initiative
under the Administrative Procedures Act (“APA”),
see id.
169—187. As to the constitutional
challenges, in Count I, the plaintiff alleges that
“[tjhrough their administrative fiats the [
defendants made legislative rules without
Congressional approval and without meeting the
notice and comment requirements[,]” ich | 145,
which resulted in the defendants “violating] the
Separation of Powers and the Take Care Clause by
exceeding their constitutional boundaries, making
laws, and invoking national security authority
without declaring a war of any kind[,]” idL | 147.
The plaintiff also makes constitutional challenges
under the China initiative in Counts II, III, and IV
that the Court will discuss, infra, in Sections III.C,
III.D, and III.E.
As to the" APA challenge, in Count V, the
plaintiff alleges that “[the defendants Wray and
Demers ha[d] no authority to enact[ ]” what he
contends through the ‘“China Initiative’ is, in
essence, a ‘Chinese Economic Espionage Act.’” Id. f
171. In Count VI, the plaintiff alleges that the
China Initiative “rescinded the [Shanghai]
Communique [of 1972] and constitutes a final
agency action that is arbitrary and capricious.” IcL
1 177. In Count VII, the plaintiff further alleges
that the China Initiative “was launched without
any notice of proposed rulemaking to ‘interested
persons’ like [the p]laintiff.” IcL 1 186. The Court
will address the allegations in each Count. In his
Complaint, the plaintiff articulates his requests for
relief concerning his claims regarding the China
Initiative as the following: (1) a declaration that
“the ‘China Initiative’ is unconstitutional,” Compl.
App. 22
at 37; (2) a declaration that “the ‘China Initiative’
is unlawful pursuant to 5 U.S.C. § 706(2)(A), (B),
(C), (D), & (F),” i(L; (3) a permanent injunction
prohibiting “[the defendants and their officers,
employees, and agents from applying and enforcing
the rules, regulations, and policies promulgated by
the ‘China Initiative Working Group,”’ icL; (4) the
“[v]acat[ur] and set [ting] aside [of] the ‘China
Initiative,”’ idj and (5) an order compelling “the
[defendants to provide the Court, Congress, and
the public with . . . [s]ummary reports on racial,
ethnic, and national origin profiles of prosecutors,
investigators, informants, and domestic targets
under . . . the ‘China Initiative[,]’” idL at 38.
The defendants assert that the plaintiffs
claims regarding the China Initiative are moot
because “the [ ] Department discontinued the
China Initiative in February 2022,” and therefore
“[the p]laintiffs entire case is premised upon
obtaining declaratory relief concerning an
initiative that is no longer ongoing, and obtaining
injunctive relief prohibiting actions in furtherance
of that discontinued initiative.” Defs.’ Mem. at 12.
In response, the plaintiff argues that the
“discontinuation of the ‘China Initiative’ [ ] caused
and continues to cause massive disruptions [to]
hundreds of thousands of Americans whose affairs
are controlled or regulated by [the defendants” and
alleges that “[defendant Wray continues to spread
disinformation about the purportedly perilous
nature of having normal interactions with people
and entities in the People’s Republic of China.” Pl.’s
Opp’n at 15.
Again, the Court notes that “Article III of the
Constitution restricts the federal courts to deciding
only ‘actual, ongoing controversies,”’ Nat’l Black
Police Ass’n v. District of Columbia. 108 F.3d 346,
349 (D.C. Cir. 1997) (quoting Honig v. Doe, 484 U.S.
305, 317 (1988)), and “a federal court has no ‘power
to render advisory opinions [or]... decide questions
that cannot affect the rights of litigants in the case
before them[,]’” icL (internal quotation marks
omitted) (quoting Preiser v. Newkirk. 422 U.S. 395,
App. 23
401 (1975)). Moreover, “[e]ven where litigation
poses a live controversy when filed, . . . [the C]ourt
[must] refrain from deciding it if ‘events have so
transpired that the decision will neither presently
affect the parties’ rights nor have a more-thanspeculative chance of affecting them in the future.’”
Clarke v. United States. 915 F.2d 699, 701 (D.C.
Cir. 1990) (quoting Transwestern Pipeline Co. v.
Fed. Energy Regul. Comm’n. 897 F.2d 570, 575
(D.C. Cir. 1990)). Additionally, “[a] party may lack
a legally cognizable interest in the outcome [of a
case] ‘when, among other things, the court can
provide no effective remedy because a party has
already obtained all the relief it has sought[.]’”
Indian River Cntv. v. Rogoff. 254 F. Supp. 3d 15, 18
(D.D.C. 2017) (internal quotation marks omitted)
(quoting Conservation Force. Inc, v. Jewell. 733
F.3d 1200, 1204 (D.C. Cir. 2013)).
However, “to obtain prospective injunctive
relief, a plaintiff must show a real and immediate
threat of future injury to establish a viable case or
controversy.” Johnson v. District of Columbia. 248
F.R.D. 46, 56 (D.D.C. 2008) (citing City of Los
Angeles v. Lyons. 461 U.S. 95,103-04 (1983). When
a plaintiff seeks injunctive relief, he may not
“simply rely on past injury to show standing.”
Johnson. 248 F.R.D. at 56. Indeed, the plaintiff
must establish that he has “sustained[,]” icL, or is
“immediately in danger of sustaining some direct
injury as the result of the challenged official
conduct[,]” Lyons. 462 U.S. at 101-02. The “injury
or threat of injury must be both real and
immediate, not conjectural or hypothetical.” IcL at
102; see also O’Shea v. Littleton. 414 U.S. 488, 49596 (1974) (“Past exposure to illegal conduct does not
in itself show a present case or controversy
regarding injunctive relief... if unaccompanied by
any continuing, present adverse effects.”).
There are two exceptions to the mootness
doctrine. First, under the “capable of repetition, yet
evading review” exception, a case is not rendered
moot where “(1) the challenged action was in its
duration too short to be fully litigated prior to its
App. 24
cessation or expiration, and (2) there was a
reasonable expectation that the same complaining
party would be subjected to the same action again.”
Ill. Elections Bd. v. Socialist Workers Party. 440
U.S. 173, 187 (1979) (quoting Weinstein v.
Bradford. 423 U.S. 147, 149 (1975) (per curiam)).
Second, under the “voluntary cessation” exception,
“voluntary cessation of allegedly illegal conduct
does not [automatically] deprive [a court] of power
to hear and determine the case[.]” Cnty. of L.A. v.
Davis. 440 U.S. 625, 631 (1979) (internal quotation
marks omitted). Rather, voluntary cessation will
only moot a case if “there is no reasonable
expectation . . . that the alleged violation will
recur,” and “interim relief or events have
completely and irrevocably eradicated the effects of
the alleged violation.” IcL “The party seeking
jurisdictional dismissal must establish mootness,
while the opposing party has the burden to prove
that a mootness exception applies.” Reid v.
Hurwitz, 920 F.3d 828, 832 (D.C. Cir. 2019).
The Court will first analyze whether the
defendants have met their burden to establish
mootness, before considering whether the plaintiff
has demonstrated that either of the two exceptions
to the mootness doctrine applies.
1.
Whether the Defendants Have Met
Their Burden to Establish Mootness
The defendants must first satisfy the “initial
heavy burden of establishing mootness.” Honeywell
Int’l, Inc, v. Nuclear Regul. Comm’n. 628 F.3d 568,
576 (D.C. Cir. 2010) (internal quotation marks
omitted). The defendants contend that, “[t]o the
extent [the p]laintiff seeks a ruling declaring the
China Initiative unconstitutional and unlawful,
[the p]laintiffs claims are [ ] moot” because “the [ ]
Department discontinued the China Initiative in
February 2022.” Defs.’ Mem. at 12. In support of
this position, the defendants argue that “[a] case is
moot when the challenged conduct ceases such that
there is no reasonable expectation that the wrong
App. 25
Vi
will be repeated in circumstances where it becomes
impossible for a court to grant any effectual relief
to the prevailing party.”’ IcL (citing United States v.
Philip Morris USA, Inc.. 566 F.3d 1095, 1135 (D.C.
Cir. 2009)). The defendants further argue that this
Court should dismiss the plaintiffs claims
pertaining to the China Initiative as moot because
“[the p]laintiffs entire case is premised upon
obtaining declaratory relief concerning an
initiative that is no longer ongoing, and obtaining
injunctive relief prohibiting actions in furtherance
of that discontinued initiative,” Defs.’ Mem. at 12.
In response, the plaintiff argues that, “[d]espite the
discontinuation of the China Initiative”:
1.
“[defendant
Wray
continues
to
deliberately spread disinformation about the FBI’s
racial profiling practice[,]” Pl.’s Opp’n at 8.
2. “[defendant Wray continues to spread
disinformation about the purportedly perilous
nature of having normal interactions with people
and entities in the People’s Republic of China[,]” icL
at 15; and
3. “the discontinuation of the ‘China
Initiative’ [ ] caused and continues to cause massive
disruptions on hundreds of thousands of Americans
whose affairs are controlled or regulated by [the
defendants[,]” icL
The APA “creates a ‘basic presumption of
judicial review [for] one ‘suffering legal wrong
because of agency action.’” Weyerhaeuser Co. v.
U.S. Fish & Wildlife Serv.. 139 S. Ct. 361, 370
(2018) (quoting Abbott Laboratories v. Gardner.
387 U.S. 136, 140 (1967) (alterations in original));
see also 5 U.S.C. § 702. However, “[a] case is moot
‘when the issues presented are no longer live or the
parties lack a legally cognizable interest in the
outcome.’” Akiachak Native Cmty. v. U.S. Dep’t of
Interior. 827 F.3d 100, 105 (D.C. Cir. 2016)
(internal quotation marks omitted) (quoting U.S.
Parole Comm’n v. Geraghtv, 445 U.S. 388, 396
(1980)). In other words, for a case to be justiciable,
the Court’s disposition of the claims must “affect
the rights of litigants in the case before [it,]”
App. 26
Preiser, 422 U.S. at 401, and “[the C]ourt [must]
refrain from deciding it if ‘events have so
transpired that the decision will neither presently
affect the parties’ rights nor have a more than
speculative chance of affecting them in the
future [,]”’ Clarke. 915 F.2d at 701 (quoting
Transwestern Pipeline Co.. 897 F.2d at 575).
Moreover, where the claims are founded on the
invalidity of a policy or regulation and “that
regulation no longer exists, [the Court] can do
nothing to affect [the plaintiffs’] rights relative to
it, thus making th[e] case classically moot for lack
of a live controversy.” Akiachak Native Cmtv.. 827
F.3d at 106; see Larsen v. U.S. Navy. 525 F.3d 1, 4
(D.C. Cir. 2008) (“[B]ecause the [agency has]
already eliminated the [challenged p]olicy and [the]
plaintiffs never allege that the [agency] will
reinstitute it, any injunction or order declaring it
illegal would accomplish nothing—amounting to
exactly the type of advisory opinion Article III
prohibits.”). This rule applies with equal force to
claims for declaratory relief. See Diffenderfer v.
Cent. Baptist Church of Mia. Inc., 404 U.S. 412,
414-15 (1972) (dismissing as moot a request for a
declaratory
judgment
regarding
the
unconstitutionality of a statute because the “relief
[was], of course, inappropriate [given] that the
statute ha[d] been repealed”).
Regarding the plaintiffs requests for
injunctive relief related to the China Initiative, see
supra. Section III.B, the defendants have met their
initial burden of establishing that these claims are
moot. Although the Court questions whether it has
the authority to review the China Initiative under
the APA, Defs.’ Mem. at 16 (“[t]he China Initiative
is not a statute, regulation, rule, or even agency
action11 as the APA defines those terms”), the
11 Cf. Crowley Caribbean Transport. Inc, v. Pena. 37, F.3d
671, 677 (D.C. Cir. 1994) (“As general statements, they are
more likely to be direct interpretations of the commands of
the substantive statute rather than the sort of mingled
assessments of fact, policy, and law that drive an individual
enforcement decision and that are . . . within the agency’s
App. 27
Court, in any event, “lacks jurisdiction to decide
[the] case[,]” Larsen, 525 F.3d at 4, because there
is no current “actual case[ ] or controversy[,]” kL,
for the Court to consider, the Department having
discontinued the China Initiative in February
2022, see Assistant Attorney General Matthew
Olsen Delivers Remarks on Countering NationState Threats, U.S. Dep’t of Just. (Feb. 23, 2022),
https://www.justice.gov/opa/speech/assistantattorney-general-matthew-olsen-deliversremarkscountering-nation-state-threats. 12 This
cessation of the China Initiative renders the
declaratory and injunctive relief requested by the
plaintiff, see Compl. at 37 (requesting the Court
“enjoin[ ] Agency [defendants and their officers,
employees, and agents from applying and enforcing
the rules, regulations, and policies promulgated by
the ‘China Initiative Working Group’”), of no
practical effect because “[the Court] can do nothing
to affect [the plaintiffs] rights relative to” the
terminated program, “thus making this case
classically moot for lack of a live controversy [,]”
Akiachak Native Cmtv.. 827 F.3d at 106; see icl
(dismissing as moot a claim challenging a
regulation which was subsequently rescinded); see
also Nat’l Black Police Ass’n. 108 F.3d at 349
(dismissing as moot a challenge to District of
Columbia campaign contribution limits because an
“intervening event [ ] end[ed] any live controversy
expertise and discretion.”); see also MediNatura, Inc, v. Food
& Drug Admin.. 496 F. Supp. 3d 416, 445 (D.D.C. 2020) (“[A]n
agency’s decision not to enforce mirrors a prosecutor’s
decision not to bring charges, the latter of which has long been
regarded as a matter of unreviewable discretion.”) (citing
Heckler v. Chanev. 470 U.S. 821, 832 (1985V): see also United
States v. Simmons. No. 18-cr-344 (EGS), 2022 WL 1302888,
at *10 (“[W]ith respect to criminal charging decisions, the
Supreme Court has made clear that the government’s
decision as to whom to prosecute is generally unreviewable.”)
(internal quotation marks omitted) (quoting Secretary of
Labor v. Twentvmile Coal Co.. 456 F.3d 151 (D.C. Cir. 2006)).
12 For the reasons set forth in footnote 3, supra, the Court
takes judicial notice of the transcript of Assistant Attorney
General Olson’s remarks because it is available on the
Department’s public website.
App. 28
between [the] plaintiffs and the [defendant]” when
“the [defendant] enact[ed] [ ] new campaign
contribution legislation”); MoveCorp v. Small Bus.
Admin.. No. 20-cv-1739, 2021 WL 3144943, at *4
(D.D.C. July 26, 2021) (dismissing as moot a claim
challenging an agency rule that was subsequently
superseded by a later version such that it “no
longer
presented]
a
live
controversy”).
Accordingly, the Court concludes that the
defendants have met their burden of establishing
that the plaintiffs claims relating to the China
Initiative are moot.
2. Exceptions to the Mootness Doctrine
Having concluded that the defendants have
met their burden to demonstrate that the plaintiff s
claims about the China Initiative are moot, the
Court must next determine whether the plaintiff
has demonstrated that either of the exceptions to
the mootness doctrine apply in this case.
a. The Capable of Repetition, Yet
Evading Review Exception
The Court begins with the first of the two
exceptions to the mootness doctrine, i.e., whether
the plaintiff s claims about the China Initiative are
“capable of repetition, yet evading reviewf.]”
Weinstein. 423 U.S. at 149. In evaluating the
applicability of this exception, the Court is mindful
of the fact that the plaintiff, as “the opposing
party[,] has the burden to prove that a mootness
exception applies.” Reid. 920 F.3d at 832.13
“[E]ven though the specific action that the
plaintiff challenges has ceased, a claim for
13 Although the parties do not address either of the two
exceptions to the mootness doctrine in their filings, the Court
will address both exceptions because it is obligated to sua
snonte address whether it has subject-matter jurisdiction
even if the parties do not. See Fed. R. Civ. P. 12(h)(3); Poblete
v. U.S. Marshals Service, 207 F. Supp. 3d 1, 2 (D.D.C. 2016)
(“[S]ubject matter jurisdiction may not be waived, and . . .
courts may raise the issue suasponte.”).
App. 29
declaratory relief will not be moot” if “the specific
claim fits the exception for cases that are capable
of repetition, yet evading review.” Del Monte Fresh
Produce Co. v. United States. 570 F.3d 316, 321
(D.C. Cir. 2009). “The capable of repetition but
evading review exception applies if ‘(1) the
challenged action was in its duration too short to be
fully litigated prior to its cessation or expiration,”’
i.e., “the evading review” prong, and ‘“(2) there was
a reasonable expectation that the same
complaining party would be subjected to the same
action again[,]”’ i.e., the “capable of repetition”
prong. J.T. v. District of Columbia. 983 F.3d 516,
523 (D.C. Cir. 2020) (quoting Weinstein. 423 U.S.
at 149).
Regarding the first prong of the analysis,
“[t]o evade review, the challenged action must be
incapable of surviving long enough to undergo
Supreme Court review.” United Bhd. of Carpenters
& Joiners of Am. v. Operative Plasterers’ & Cement
Masons’ Int’l Ass’n of the U.S. & Can.. 721 F.3d
678, 688 (D.C. Cir. 2013). Generally, “agency
actions of less than two years’ duration cannot be
fully litigated prior to cessation or expiration, so
long as the short duratioji is typical of the
challenged action.” Del Monte Fresh Produce Co..
570 F.3d at 322 (internal quotation marks omitted).
However, “[this] Circuit[’s] precedent [also]
requires [the Court] to determine whether the
activity challenged is inherently of a sort that
evades review[.]” Campbell v. Clinton. 203 F.3d 19,
34 (D.C. Cir. 2000) (internal quotation marks
omitted) (emphasis added). Thus, the challenged
action must, in and of itself, be so time-bound that
it evades review. See Grant v. Vilsack, 892 F. Supp.
2d 252, 258 (D.D.C. 2012) (“The ‘capable of
repetition[, yet evading review]’ exception applies
to claims that are inherently short-lived.”);
compare, e.g., id. at 257-58 (concluding that the
challenged action did not evade review because
“the alleged wrong”—namely, an agency’s
deregulation decision—“[could] arise in a context
with ample time for review”), with Jenkins v.
App. 30
Sauillacote. 935 F.2d 303, 307 (D.C. Cir. 1991)
(“[T]here can be no doubt that a one-year placement
order under the [Individuals with Disabilities
Education Act] is. by its nature, too short [in
duration] to be fully litigated prior to its . . .
expiration.” (internal quotation marks omitted)
(emphasis added)). So in other words, this Circuit
“also adds in an additional requirement that a
given action must meet before it results in an
application of this exception: that ‘the short
duration is typical of the challenged action.’” People
for the Ethical Treatment of Animals. Inc, v. U.S.
Fish & Wildlife Serv., 59 F. Supp. 3d 91, 97 (D.D.C.
2014) (quoting Del Monte Fresh Produce Co.. 570
F.3d at 322).
Here, the underlying action challenged by
the plaintiffs is neither “inherently short-lived[,]”
Grant. 892 F. Supp. 2d at 258, nor typically “short
[in] duration[,]” People for the Ethical Treatment of
Animals. Inc.. 59 F. Supp. 3d at 97. The plaintiff
himself alleges in his Complaint that the
Department announced the China Initiative on
November 1, 2018, see Compl.
3. As already
mentioned, see supra Section III.B.l, the
Department formally ceased the China Initiative
on February 23, 2022, see Assistant Attorney
General Matthew Olsen Delivers Remarks on
Countering Nation-State Threats. U.S. Dep’t of
Just. (Feb. 23, 2022),
https://www.justice.gov/opa/speech/assistantattorney-general-matthew-olsen-deliversremarkscountering-nation-state-threats. Thus, the
China Initiative was in effect for roughly three
years and four months, which is significantly
longer than the two years that is generally
considered insufficient to “fully litigate [ agency
claims] prior to cessation or expiration[,]” Del
Monte Fresh Produce Co.. 570 F.3d at 322.
Furthermore, the plaintiff makes no allegation, see
generally Compl.; Pl.’s Opp’n, that any future
initiative would be of a “short duration . . . typical
of the challenged action[,]” icL (emphasis added).
See People for the Ethical Treatment of Animals.
App. 31
Inc., 59 F. Supp. 3d at 97 (concluding that the
plaintiffs challenge to Secretary’s issuance of
certain permits did not evade review, based upon
the plaintiffs failure to establish typicality, even
where the plaintiff presented evidence that
“[twenty-one] of [a total of ninety-five permitting
applications] had durations of less than three
years”).
For the foregoing reasons, the Court
concludes that the plaintiff has not met his burden
of establishing that “the challenged action was in
its duration too short [in time] to be fully litigated
prior to its cessation or expiration[.]” Weinstein,
423 U.S. at 149. And, because the “capable of
repetition, yet evading review” test “requires that
the challenged action be both capable of repetition
and evading review[,]” People for the Ethical
Treatment of Animals. Inc.. 59 F. Supp. 3d at 97
(citing Weinstein, 423 U.S. at 149) (emphasis in
original), and “a deficiency in one area renders the
exception itself moot[,]” icL, the Court need not
reach the second prong of the analysis—namely,
whether the challenged action is capable of
repetition, see id. at 97-98 (basing the court’s
decision as to the “capable of repetition, yet evading
review” exception on its dispositive determination
regarding
the
“evading
review”
prong).
Accordingly, the Court concludes that the “capable
of repetition, yet evading review” exception does
not apply in this case.
b. The Voluntary Cessation Exception
Having concluded that the “capable of
repetition, yet evading review” exception does not
apply in this case, see supra Section III.B.l.a, the
Court must next consider whether the second
exception to the mootness doctrine—the “voluntary
cessation” exception—applies. Again, in evaluating
the application of exceptions to the mootness
doctrine, the Court is mindful of the fact that the
plaintiff, as “the opposing party[,] has the burden
App. 32
to prove that a mootness exception applies.” Reid.
920 F.3d at 832.
The “voluntary cessation” exception to the
mootness doctrine “prevent[s] a [ ] defendant from
manipulating the judicial process by voluntarily
ceasing the complained of activity, and then
seeking a dismissal of the case, thus securing
freedom to ‘return to his old ways.”’ Clarke. 915
F.2d at 705. Under this exception, “[a] defendant’s
voluntary decision to cease the activities that gave
rise to the suit extinguishes the live controversy[ ]
‘only if (i) there is no reasonable expectation that
the alleged violation will recur, and (ii) interim
relief or events have completely and irrevocably
eradicated the effects of the alleged violation.’”
Citizens for Resn. & Ethics in Wash, v. Wheeler.
352 F. Supp. 3d 1, 13 (D.D.C. 2019) (quoting Aref v.
Lynch. 833 F.3d 242, 251 (D.C. Cir. 2016)).
However, this Circuit has been skeptical of
applying this exception to agency actions. See
Alaska v. U.S. Dep’t of Agric.. 17 F.4th 1224, 1227
(D.C. Cir. 2021) (stating that the Circuit has
expressed “‘serious doubts’ about whether the
‘voluntary cessation’ rationale appl[ies] to cases . .
. [involving agency action]: ‘it would seem
inappropriate for the courts either to impute such
manipulative conduct to a coordinate branch of
government, or to apply against that branch a
doctrine that appears to rest on the likelihood of a
manipulative purpose’” (quoting Clarke. 915 F.2d
at 705)).
Regarding the first prong of the “voluntary
cessation” exception, namely, whether “there is no
reasonable expectation [ ] that the alleged violation
will recur,” Aref. 833 F.3d at 251, where “the
defendant is a government actor—and not a private
litigant—there is less concern about the recurrence
of objectionable behavior[,]” Citizens for Resn. &
Ethics in Wash, v. Secs. & Exch. Comm’n. 858 F.
Supp. 2d 51, 61 (D.D.C. 2012). The mere power to
put in place a particular policy is “not a sufficient
basis on which a court can conclude that a
reasonable expectation of recurrence exists.” Nat’l
App. 33
Black Police Ass’n. 108 F.3d at 349. “Rather, there
must be evidence indicating that the challenged
[policy] likely will be re [instated].” Id. (emphasis
added); see also Larsen. 525 F.3d at 4 (finding that
there was “no reasonable expectation . . . that the
alleged violation will recur” where “the Navy has
never said it will reenact [its terminated religious
quota policy], and [the] plaintiffs have not even
alleged as much.” (internal quotation marks
omitted)).
Here, regardless of whether it was a true
agency action, the Department has formally ceased
the China Initiative and announced a “much
broader approach” to countering espionage threats
from the Chinese government and those who act on
its behalf. See Assistant Attorney General
Matthew Olsen Delivers Remarks on Countering
Nation-State Threats. U.S. Dep’t of Just. (Feb. 23,
2022),
https ://www .justice. gov/op a/speech/assistantattorney-general-matthewolsen-delivers-remarkscountering-nation-state-threats. In his remarks
discontinuing the China Initiative, Assistant
Attorney General Olsen stated that “[t]he
Department will continue to prioritize and
aggressively counter the actions of the [Chinese]
government that harm our people and our
institutions [, b]ut our review convinced us that a
new approach is needed” against “the current
threat landscape” and in light of “concerns from the
civil rights community that the ‘China Initiative’
fueled a narrative of intolerance and bias” against
Asian-Americans and persons of Chinese heritage.
Id. In his opposition to the defendants’ motion to
dismiss, the plaintiff, in conceding that the China
Initiative has been rescinded, argues that the
“discontinuation of the ‘China Initiative’ [ ] caused
and continues to cause massive disruptions on
hundreds of thousands of Americans whose affairs
are controlled or regulated by [the defendants.”
Pl.’s Opp’n at 15. The plaintiff further alleges that
“[d]espite the discontinuation of the ‘China
Initiative in February 2022, [defendant Wray
App. 34
continues to spread disinformation about the
purportedly perilous nature of having normal
interactions with people and entities in the People’s
Republic of China.” LL However, neither of these
allegations provide “evidence indicating that the
challenged [policy] likely will be re [instated] [,]”
Nat’l Black Police Ass’n, 108 F.3d at 349, nor does
the plaintiff make any other allegations to that
effect, see generally Compl.; Pl.’s Opp’n. As the
plaintiff has not alleged that any of the defendants
“[are] likely to or even considering reinstituting”
the China Initiative, the Court concludes that there
is “no reasonable expectation . . . that the alleged
violation will recur.” Larsen. 525 F.3d at 4 (internal
quotation marks omitted).
Regarding the second prong of the
“voluntary cessation” exception, namely, whether
“interim relief or events have completely and
irrevocably eradicated the effects of the alleged
violation[,]” Aref. 833 F.3d at 251 (quoting Am. Bar
Ass’n v. Fed. Trade Comm’n. 636 F.3d 641, 648
(D.C. Cir. 2011)), “[t]he determination whether
sufficient effects [of the alleged violation] remain .
.. will turn on the availability of meaningful relief.”
Cierco v. Lew. 190 F. Supp. 3d 16, 24 (D.D.C. 2016)
(second alteration in original). Accordingly, “[a]
case is not moot if a court can provide an effective
remedy,” Lewis v. Becerra. No. 18-cv-2929, 2023
WL 3884595, at *13 (D.D.C. June 8, 2023) (Walton,
J.) (quoting Larsen. 525 F.3d at 4). Here, the
plaintiff seeks several forms of equitable relief from
this Court for his claims relating to the China
Initiative-—namely, (1) a declaration that the
China Initiative was unconstitutional and
unlawful, ; (2) a permanent injunction barring the
defendants from “applying and enforcing the rules,
regulations, and policies promulgated by the ‘China
Initiative Working Group’”; and (3) an order
“vacating and setting aside the ‘China Initiative [.]’”
Compl. at 37. Again, because the Department has
already terminated the China Initiative and the
plaintiff has not alleged that the Department or the
defendants “[are] likely to or even considering
App. 35
re instituting” it, “any injunction or order declaring
it illegal would accomplish nothing—amounting to
exactly the type of advisory opinion Article III
prohibits.” Larsen. 525 F.3d at 4. Given that the
plaintiff offers no basis on which the Court can
conclude that “there is [a] reasonable expectation”
that the China Initiative “will recur,” Aref, 833
F.3d at 251, and that this Court could provide a
meaningful remedy to the plaintiff, the Court
concludes that the “voluntary cessation” exception
also does not apply in this case.
Accordingly, the Court concludes that, to the
extent the plaintiff seeks prospective relief from the
China Initiative—viz., declaratory and injunctive
relief—his constitutional and APA claims are moot
because “intervening events have [ ] ‘irrevocably
eradicated the effects of the alleged violation.”’
Lyons. 461 U.S. at 101 (quoting Cntv. of L.A., 440
U.S. at 631). Consequently, the plaintiff having
failed to establish that either of the abovereferenced exceptions to mootness apply in this
case, the Court concludes that it must dismiss as
moot Counts I, V, VI, and VII of the plaintiffs
Complaint.
However, the plaintiffs claims seeking
retrospective relief—e.g., presumably damages as
part of the “other” relief being requested, Compl. at
38—for alleged constitutional violations survive
the defendants’ mootness position because the
plaintiff has alleged that he has sustained some
injury that is “[ Jaccompanied by [ ] continuing,
present [and] adverse effects[,]” O’shea, 414 U.S.
495-96, allegedly redressable by the Court, Lyons.
461 U.S. at 101-02 (“The plaintiff must show that
he has sustained or is immediately in danger of
sustaining some direct injury as the result of the
challenged [ ] conduct[ ]”); see Compl. flf 148-168
(alleging violations under the Fourth, Fifth, and
Fourteenth Amendments); see id. at 37 (requesting
that the Court “[o]rder[ the defendants to release
[the p]laintiffs personal properties and to expunge
any and all of his FBI records[ ]”); ich at 38
(requesting an “[a]ward[ for the p]laintiff [for]
App. 36
reasonable costs and expenses, including attorneys’
fees[ ]”); i(L (requesting the Court “[gjrant such
other and further relief as . . . deem[ed] just and
proper[ ]”). Accordingly, the Court will address the
merits of those claims next.
C.
The
Claim
Plaintiffs
Fourth
Amendment
Having dismissed the plaintiffs claims
based on Korematsu and the China Initiative for
lack of subject-matter jurisdiction, the Court will
now address the plaintiffs Fourth Amendment
claim challenging the validity of the search
warrant executed by the FBI at his residence.
The plaintiff alleges that,
[o]n November 27, 2019, the FBI
conducted a predawn raid of [his]
residence on behalf of a private sector
employer after [his former employer]
fabricated
a
claim
of
hacking
government computers and a claim of
disclosing protected health information
(“PHI”) by [the p]laintiff. The FBI,
without further investigation, used the
[former employee’s false, uninvestigated
claims as probable cause for the search
warrant.
Compl. f 33. The plaintiff further alleges that upon
receipt of a copy of the search warrant executed at
his residence, “[he] immediately identified [ ] three
demonstrably false statements. . . that [ ] [his
former employer and the FBI used to] fraudulently
established probable cause.” Ich If 51. Specifically,
the plaintiff alleges that “[his former employer] and
the FBI knowingly and willfully lied in support of
the search warranty by] stating that:” (1) ‘“as part
of [the plaintiffs] duties, [the plaintiff] was
responsible for using a laptop computer[ . . . ]and
transmitting relevant data to various state
regulatory agencies nationwide[. . . ,]’” ick 1 45; (2)
App. 37
“that ‘[ ] security personnel knew that [the
plaintiffs] statement [about experimenting with a
USB-C port to run a separate operating system for
personal use] was false because the laptop does not
have a Thunderbolt or USB-C connectionf,]”’ icL U
46; and (3) “that on or about November 8th, 2019,
‘[the plaintiff][ . . . ]was trying to get into his
office [,]” which the plaintiff, [a]s a telework
employee, does not have an office in the buildingf,]”’
id. f 47.
To rebut these allegedly false statements,
the plaintiff asserts (1) that “[he] never had access
to any government agency computer systems and
had never needed to modify any computer to gain
access to ‘relevant data[,]”’ icL ][ 45; (2) that “[t]he
laptop identified as ‘a brand new HP Elitebook 840
G6’ does have a ‘USB 3.1 Type-C port (with
Thunderbolt
support)’
according
to
its
manufacturer’s website[,]” LL
46; and (3) that
[the p]laintiff and other tele[ ]workers do have an
office area which they routinely use when coming
into the office[,]” and “[the p]laintiff had no
intention to enter the building on [November 8,
2019,] and did not even bring his ID badge [
presumably for the purpose of gaining entry into
the building,]” icL
47. The plaintiff therefore
contends that the FBI “willfulmly and deliberately
fabricate[d] evidence to support the [ ] search
warrant on [the p]laintiffs residence.” IcL
152.
The plaintiff further claims that “[b]ut for his
Chinese ancestry, the FBI would never have issued
the search warrant, nor would it have sought
additional evidence against [the p]laintiff without
first investigating the false allegations made by
[the plaintiffs former employer].” IcL
33. To
summarize his Fourth Amendment claim, the
plaintiff asserts that “[w]hen [the FBI] raided [the
p]laintiffs residence and then fraudulently applied
for other search and seizure orders, [the
defendants caused and continue to cause an
unreasonable search and seizure of [the p]laintiffs
person, property, papers, and effects in violation of
[the p]laintiffs privacy, property, and other rights
App. 38
and privileges under the Fourth Amendment.” hh
If 153.
In their motion to dismiss, the defendants
assert that “[the p]laintiff pleads no facts sufficient
to state a claim for an unlawful search and seizure
beyond
conclusory
and
unsubstantiated
assertions [,]”
and
that
“[the
p]laintiffs
disagreement with the contents of the sworn
affidavit submitted to justify a search warrant [ ]
does not state an unreasonable search and seizure
claim cognizable under the Fourth Amendment.”
Defs.’ Mem. at 32 (internal citation omitted). In
response to this argument, the plaintiff alleges that
“[t]he FBI [ ] recklessly disregarded the easily
verifiable truth[,]” Pl.’s Opp’n at 25, and
“deliberately failed to verify the [former
employer’s] ‘hacking’ claim to falsely elevate the
validity and urgency of its search warrantf,]” icL at
25-26. For the reasons stated below, the Court
concludes that the plaintiff has failed to show that
the search warrant was invalid and thus has not
stated a cognizable claim under the Fourth
Amendment.
The Fourth Amendment provides that “no
Warrants shall issue, but upon probable cause[.]”
U.S. Const, amend. IV. It is well-established that
“[a]n affidavit offered in support of a search
warrant enjoys a ‘presumption of validity.’” United
States v. Maynard, 615 F.3d 544, 550 (D.C. Cir.
2010) (quoting Franks v. Delaware. 438 U.S. 154,
171 (1978)). The Supreme Court has provided the
following explanation for why there is an
expectation of truthfulness that attends all
warrant applications:
When the Fourth Amendment demands
a factual showing sufficient to comprise
“probable
cause,”
the
obvious
assumption is that there will be a
truthful showing. This does not mean
“truthful” in the sense that every fact
recited in the warrant affidavit is
necessarily correct, for probable cause
App. 39
may be founded upon hearsay and upon
information received from informants, as
well as upon information within the
affiant’s own knowledge that sometimes
must be garnered hastily. But surely it is
to be “truthful” in the sense that the
information put forth is believed or
appropriately accepted by the affiant as
true.
Franks. 438 U.S. 164—65 (internal quotation marks
and citation omitted). Given this expectation, the
Fourth Amendment is violated where “a false
statement knowingly and intentionally, or with
reckless disregard for the truth, was included by
the affiant in the warrant affidavit, [ ] if the
allegedly false statement is necessary to the finding
of probable cause.” Id, at 155-56; see also United
States v. Richardson. 861 F.2d 291, 293 (D.C. Cir.
1988) (per curiam)) (applying Franks in upholding
the validity of a search warrant supported by a
false affidavit). A movant challenging the validity
of a search warrant states a cognizable Fourth
Amendment claim “only if
his attack on the accuracy of the affidavit is ‘more
than conclusory’ and is . .. ‘accompanied by an offer
of proof.”’ United States v. Gaston. 357 F.3d 77, 80
(D.C. Cir. 2004) (quoting Franks. 488 U.S. at 171).
Here, the defendants have correctly pointed
out that “[the p]laintiff pleads no facts sufficient to
state a claim for an unlawful search and seizure
beyond conclusory and unsubstantiated assertions”
regarding the validity of the search warrant. Defs.’
Mem. at 32. The plaintiff has utterly “failed to show
that the purported false statements were . . . made
with reckless disregard for the truth,” United
States v. Burroughs, 882 F. Supp. 2d 113, 119
(D.D.C. 2012), or made “knowingly and willfully[,]”
Franks. 488 U.S. at 155..The plaintiff has also
“offered no reason to believe that [the FBI], in
preparing [its] affidavit, knew” that the three
statements the plaintiff identified were false, “or
that [the FBI] acted in reckless disregard of the
App. 40
truth.” Gaston. 357 F.3d at 81. The plaintiff offers
no factual basis in either his Complaint or his
opposition to support his allegations that the FBI
“knowingly and willingly lied in support of the
search warrant,” Compl. f 45; see also id. If If 4647, and “speculation[ is] not a substantial showing”
to establish a Fourth Amendment violation.
Maynard. 615 F.3d at 551. Because there has been
“absolutely no showing [that the affiant] made the
statements with scienter [that the warrant was
supported by false information],” Richardson. 615
F.3d at 551, the Court “need not resolve whether
the [three] statements [in the search warrant
affidavit] were false or material,” icL at 293. The
plaintiffs factually unsupported allegations
regarding the motivations of the defendants in
seeking a search warrant are the exact type of
“mere conclusions” that “are not entitled to the
assumption of truth” under Rule 12(b)(6). Iqbal.
556 U.S. at 664; see also Pierce v. Mattis. 256 F.
Supp. 3d 7, 15 (D.D.C. 2017) (“Because [the]
plaintiff has not alleged sufficient facts to show
that [the defendants] violated her Fourth
Amendment rights, . . . [the] plaintiff has failed to
state a claim upon which relief can be granted.”).
Accordingly, the Court concludes that it must
dismiss Count II to the extent the plaintiff alleges
a Fourth Amendment violation.
D.
The Plaintiffs Fifth Amendment Claims
The Court now next turns to the plaintiffs
claims based on the Fifth Amendment. In this
regard, the plaintiff makes two claims against
specific conduct by the defendants in Counts III
and IV. See Compl. If If 156-168. Respectively, as to
both Counts, the plaintiff alleges that the
defendants
(1) “willfully and deliberately
fabricated] evidence against [the p]laintiff . . .
negatively impacting the p]laintiffs liberty to
travel, [ ] work, [ ] communicate, and [ ] carry on
other ordinary activities[,]” ich If 158, and that (2)
“[w]ithout due process or constitutionally required
App. 41
legislative action, the [djefendants . . . subjected
[the pjlaintiff to selective investigation and
surveillance predicated on [the p]laintiffs race,
ethnicity, or national origin[,]” id^ ^ 166. The Court
will address each Count in turn.
1.
The Plaintiffs Count III Claims
First, as to Count III, the plaintiff alleges
that “[a]s a direct and proximate result of the
[defendants’ unlawful conduct, [the pjlaintiff had
to resign from a federal contractor position in 2020,
and [the pjlaintiff s prospects of stable income have
been severely and irreversibly restricted.” Id. f
159. Specifically, the plaintiff believes that the
defendants “knew or should have known that, since
2014, [the pjlaintiff used his Google account in
communications with many attorneys and citizens
to organize a class action challenging a genderdiscrimination law called ‘Violence against Women
Act[,]’” when the FBI sought to access the plaintiffs
Google account. IcL ^ 160. The defendants,
suspecting the plaintiff has alleged a substantive
due process claim under the Fifth Amendment, see
Defs.’ Mem. at 34, respond that “[the pjlaintiff
fail[s] to identify a liberty or property interest that
has been deprived[,J” id., because “[the pjlaintiff
pleads no factual material from which a plausible
inference can be drawn that any of [the pjlaintiffs
liberty or property interests have been deprived at
all, let alone by any acts taken by [the
djefendants[,j” id. at 35.14
14 The defendants also argue that “[t]o the extent [the
pjlaintiff asserts a procedural due process claim, he must
identify the process that is due[,J” and that “[the pjlaintiff
failed to do so.” Defs.’ Mem. at 34. It is well understood “that
no process is due if one is not deprived of ‘life, liberty or
property’[,J” Kerry v. Din. 578 U.S. 86, 90 (2015) (quoting
Swarthout v. Cooke. 562 U.S. 216, 219 (2011) (per curiam))
(emphasis omitted). Thus, the Court must first determine
“whether there exists a liberty or property interest of which
[the plaintiff] has been deprived,” Swarthout. 562 U.S. at 219,
and then “[the Court] ask[s] whether the procedures followed
by the [government] were constitutionally sufficient.” Id.; but
App. 42
The Fifth Amendment's Due Process Clause
protects individuals from the deprivations of “life,
liberty, or property, without due process of law.”
U.S. Const, amend. V. For the plaintiff to allege a
substantive due process violation, he must allege
wrongful
“arbitrary,
government
actions
‘regardless of the fairness of the procedures used to
implement them.’” Zinermon v. Burch. 494 U.S.
113, 125 (1990) (quoting Daniels v. Williams, 474
U.S. 330, 331 (1986)). Wrongful government action
“applie[s] to deliberate decisions by government
officials t[hat] deprive a person of [his] life, liberty,
or property.” Roum v. Fentv. 697 F. Supp. 2d 39, 45
(D.D.C. 2010) (emphasis in original). Specifically,
under the Fifth Amendment, “[s]ubstantive due
process [protections] constrain[ ] only egregious
government misconduct.” Decatur Liquors v.
District of Columbia. 478 F.3d 360, 363 (D.C. Cir.
2007) (quoting George Washington University v.
District of Columbia. 318 F.3d 203, 209 (D.C. Cir.
2003). However, “a substantive due process
violation will only occur where the government’s
conduct is ‘so egregious, so outrageous, that it may
fairly be said to shock the contemporary
conscience [.]”’ Toms v. Office of the Architect of the
Capitol. 650 F. Supp.2d 11, 25 (D.D.C. 2009)
see Doe by Fein v. District of Columbia. 93 F.3d 861, 870 (D.C.
Cir. 1996) (internal quotations marks omitted) (alterations
omitted) (recognizing that “process is not an end in itself, but
is rather a means to the end of protecting substantive rights”).
Here, the plaintiff fails to allege a specific “liberty or property
interest[,]” Swarthout. 562 U.S. at 219, that he has been
deprived of as a result of him resigning from his job, see
Compl. If 159, or the government seeking a search warrant on
his Google account, see Compl. 1f 160. Thus, because the
plaintiff has failed to establish depravity of a “liberty or
property interest!,]” with regard to the allegations in Count
III of the Complaint, the Court need not further “ask whether
the procedures followed by the [government] were
constitutionally sufficient,]” Swarthout. 562 U.S. at 219, as
they pertain to procedural due process under the Fifth
Amendment. Therefore, to the extent the plaintiff raises a
procedural due process claim in Count III of the Complaint,
the claim is dismissed. See Doe by Fein. 93 F.3d 861, 869
(dismissing the plaintiffs claim where she failed to identify
the process that was due).
App. 43
(Walton, J.) (quoting Butera v. District of
Columbia. 235 F.3d 637, 651 (D.C. Cir. 2001)). “[I]t
is clear that the due process guarantee does not
entail a body of constitutional law imposing
liability whenever someone cloaked with state
authority causes harm... [Rather,] conduct
intended to injure in some way unjustifiable by any
government interest is the sort of official action
most likely to rise to the conscience-shocking level.”
County of Sacramento v. Lewis. 523 U.S. 833, 847
n.8 (1998).
Here, the plaintiff fails to plead such
“egregious government misconduct [,]” Decatur
Liquors. 478 F.3d at 363, that “deprive[d him] of
[his] life, liberty, or property[,]” Roum, 697 F. Supp.
2d at 45, sufficient to survive dismissal. As the
defendant points out, “[although [the p]laintiff
alleges that [the defendants’ purported actions
‘negatively impacted’ his ‘liberty to travel, [ ] work,
[ ] communicate, and [ ] carry on other ordinary
activities,” Defs.’ Mem. at 35 (quoting Compl. ^
158), such factual allegations provide little, if any,
“factual material from which a plausible inference
can be drawn[ by the Court,]” icl, that shows that
“[the p]laintiffs liberty or property interests have
been deprived at all, let alone by any acts taken by
[the d]efendants[,]”15 icl; see also Iqbal, 556 U.S. at
678 (“A claim has facial plausibility when the
plaintiff pleads factual content that allows the
15 The plaintiff alleges that “[a]s a direct and proximate
result of the [ defendants’ unlawful conduct, [the p]laintiff
had to resign from a federal contractor position in 2020[.]”
Compl. f 159. As an initial matter, there is “substantial doubt
as to whether one’s interest in public employment is protected
by substantive due process.” Said v. Nat’l R.R. Passenger
Corn.. 317 F. Supp. 3d 304, 341 (D.D.C. 2018) (Walton, J.)
(quoting Winder v. Erste. 511 S. Supp. 2d 160, 183 (D.D.C.
2007)). Even assuming arguendo that the plaintiff had a
protected interest in his employment, the plaintiff fails to
plead “factual content that allows the [C]ourt to draw the
reasonable inference[,]” Iqbal. 556 U.S. at 678, that the
defendant’s conduct had any causal connection to his decision
to resign from his position. Accordingly, the Court need not
reach the question of whether the plaintiff had a protected
interest in his employment.
App. 44
court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”).
Moreover, the FBI “s[eeking] to access the
plaintiffs [Google] account[,]” Compl. f 160, in
conjunction with an investigation is not “so
egregious[ or] so outrageous,” that it has the
capacity to “shock the contemporary conscience[.]”
Toms. 650 F. Supp.2d at 25. Accordingly, to the
extent the plaintiff is alleging substantive due
process violations under the Fifth Amendment,
such as “the-defendant-unlawfully-harmed-me
accusation[s,]” Iqbal, 556 U.S. at 678, his claims
made in Count III are dismissed.
2.
The Plaintiffs Count IV Claims
In Count IV, the plaintiff alleges that the
defendants’ “ongoing practice to entice, encourage,
or compel private sector employers to surveille and
inform about persons of Chinese ancestry requires
a vigorous legislative debate on admissibility of
evidence and liabilities of private employers[,]”
Compl. Tf 167, and that the defendants “have
willfully and deliberately disregarded the domestic
limits placed by the equal protection clauses.” IcL H
168. The defendants respond that because the
plaintiff “merely alleges that he, like other ‘persons
of Chinese ancestry,’ has been subjected to
repeated investigations and harassment ‘without
probable cause[,]’” Defs.’ Mem. at 36, that “[the
p]laintiff fails to identify any similarly situated
person who allegedly received more favorable
treatment than he received[,]” icL, and that “[the
p]laintiff identifies no comparators who bear even
a slight resemblance to him[,]” idL, he “fails to state
an equal protection claim [under the Fifth
Amendment].”16 hh
16 The plaintiff also makes equal protection claims under
Count IV pursuant to the Fourteenth Amendment, see
Compl. f 168, despite having filed this suit against
defendants associated with the federal government. San
Francisco Arts & Athletics. Inc, v. U.S. Olympic Comm.. 483
U.S. 522, 542 n. 21 (1987) (“[T]he Fourteenth Amendment
App. 45
The Due Process Clause of the Fifth
Amendment “contains an equal protection
component prohibiting the United States from
invidiously discriminating between individuals or
groups.” Acosta v. University of District of
Columbia. 528 F. Supp. 1215, 1224-25 (D.D.C.
1981) (quoting Washington v. Davis. 426 U.S. 229,
239 (1976)). The clause requires that “similarly
situated persons must be treated alike[,]” Frederick
Douglass Found., Inc, v. District of Columbia. 531
F. Supp. 3d 316, 339 (D.D.C. 2021), and where
there is “[dissimilar treatment of dissimilarly
situated persons,” ick (quoting Women Prisoners of
D.C. Den’t of Corr. v. District of Columbia. 93 F.3d
910, 924 (D.C. Cir. 1996)), such conduct “does not
violate equal protection[,]” icL (citation omitted).
Thus, “[t]he threshold inquiry in evaluating an
equal protection claim is ... to determine whether
a person is similarly situated to those persons who
allegedly received favorable treatment.” Id.; see
also BEG Investments, LLC v. Alberti. 85 F. Supp.
3d 13, 35 (D.D.C. 2015) (Rejecting as conclusory the
plaintiffs’ assertion that they were treated
differently from those “similarly situated” where
the complaint failed to offer examples of how others
were “similarly situated”).
Here, the plaintiff fails to allege any indicia
of “[dissimilar treatment of [a ]similarly situated
personf ],” Fredrick Douglass Found.. Inc.. 531 F.
Supp. 3d at 339, to himself sufficient to survive
dismissal. The plaintiff admits he wrongfully “used
[his work] computer for personal matters with the
separate operating system he had installed on the
new laptop and was ready to accept applicable
consequences, including termination.” Compl. Tf 37.
Because of his misconduct, the plaintiff clearly
does not apply [to the federal government]”); see also Miango
v. Democratic Republic of the Congo. 243 F. Supp. 3d 113, 128
n.7 (D.D.C. 2017) (same). Accordingly, the plaintiffs claims
based on the Fourteenth Amendment must be dismissed. See
Lvles v. Hughes. 83 F. Supp.3d 315, 324 n. 1 (D.D.C. 2015)
(dismissing the plaintiffs Fourteenth Amendment claims
against the federal government defendants).
App. 46
understood that “applicable consequences,” kb, by
his former employer were forthcoming, which does
not suggest that “a person [ ] similarly situated[,]”
Fredrick Douglass Found.. Inc., 531 F. Supp. 3d at
339, would not expect similar consequences for
similar conduct, especially in light of the fact that
the plaintiff willingly resigned his position, Compl.
If 159. Furthermore, although the plaintiff alleges
“dissimilar treatment [,]” Fredrick Douglass
Found.. Inc.. 531 F. Supp. 3d at 339, by his
employer, he provides no support for how his
former employer’s response to his admitted
misconduct was “entice [d], encourage [d], or
compelled,]” Compl. f 167, by the defendants. Nor
does the plaintiff provide any support for his
position that the defendants “subjected [him] to
selective investigation and surveillance predicated
on [his] race, ethnicity, or national origin. IcL f
166.Thus, “[t]he threshold inquiry in evaluating
[the plaintiffs] equal protection claim[,]” Fredrick
Douglass Found.. Inc.. 531 F. Supp. 3d at 339, is
not satisfied because the plaintiff has again failed
to “plead[ ] factual content that allows the [C]ourt
to draw [a] reasonable inference that the
defendant^ are] liable for the misconduct alleged.”
Iqbal. 556 U.S. at 678. Accordingly, to the extent
the plaintiff makes an equal protection claim under
the Fifth Amendment in Count IV, this claim is also
dismissed. See Fed. R. Civ. P. 12(b)(6).
E.
The Plaintiffs Requested Relief for the
Return of His Property Seized by the
FBI
Finally, the Court will address the last
outstanding issue—whether this Court is the
“appropriate venue for [the p]laintiff to seek return
of his property” seized by the FBI. Defs.’ Mem. at
14. In his Complaint, the plaintiff requests that
this Court “order[ the defendants to release
[p]laintiffs personal properties[.]” Compl. at 37.
The defendants argue in their motion to dismiss
that this Court “is not the appropriate venue for
App. 47
[p]laintiff to seek return of his property” under
Federal Rule of Criminal Procedure 41(g). Defs.’
Mem. at 14. The defendants ask this Court to
“dismiss for improper venue any [ ] claims [seeking
return of the plaintiffs property] or, alternatively,
transfer those claims to the District Court for the
District of Delaware.” Id. In response, the plaintiff
requests that this Court postpone ruling on the
defendants’ motion for dismissal for improper
venue because the seized property is “not essential
for seeking declaratory judgment and other
injunctive relief.” Pl.’s Opp’n at 13.
28 U.S.C. § 1391(b) provides that a civil
action may be brought in
(1) a judicial district in which any
defendant resides, if all defendants are
residents of the State in which the
district is located;
(2) a judicial district in which a
substantial part of the events or
omissions giving rise to the claim
occurred, or a substantial part of
property that is the subject of the action
is situated; or
(3) if there is no district in which an
action may otherwise be brought as
provided in this section, any judicial
district in which any defendant is subject
to the court's personal jurisdiction with
respect to such action.
28 U.S.C. § 1391(b).
The Court may either dismiss a case, “or if it
be in the interest of justice, transfer such case to
any district ... in which it could have been
brought.” 28 U.S.C. § 1406(a). “The decision
whether a transfer or a dismissal is in the interest
of justice[ ] rests within the sound discretion of the
district court” where the suit was improperly filed,
App. 48
see Naartex Consulting Corp. v. Watt. 722 F.2d
779, 789 (D.C. Cir. 1983). This Circuit does favor
transfer when “procedural obstacles—such as lack
of personal jurisdiction[ or] improper venue . . .
impede an expeditious and orderly adjudication [ ]
on the merits.” Coltrane v. Lappin, 885 F. Supp. 2d
228, 235 (D.D.C. 2012) (Walton, J.) (internal
quotation marks omitted). When the issue of
whether to transfer or dismiss arises where the
plaintiff is pro se. there is a “presumption in favor
of transfer[ing]” a complaint that “dovetails with
the normal application of liberal standards to pro
se pleadings[,]” Sanchez-Mercedes v. Bureau of
Prisons. 453 F. Supp. 3d 404, 418 (D.D.C. 2020).
However, there are no “fixed general rules on when
cases should be transferred[.]” Starnes v. McGuire.
512 F.2d 918, 929 (D.C. Cir. 1974). Indeed,
“transfer is not always appropriate in pro se
cases[,]” Sanchez-Mercedes. 453 F. Supp. 3d at 418,
especially if there are “substantive problems with
[the plaintiffs] claims[,]” Buchanan v. Manley. 145
F.3d 386, 389 n.6 (D.C. Cir. 1998), that outweigh
transferring in the “interest of justice[,]” 28 U.S.C.
§ 1406(a).
Here, the plaintiff has made no allegation
that any “part of the events . . . giving rise to [his]
claim,” 28 U.S.C. § 1391(b)(2), for the return of his
seized property occurred in the District of
Columbia, see generally Compl. In fact, in his
Complaint, the plaintiff acknowledges that “[o]n
November 27, 2019, the FBI conducted a predawn
raid of [his] residence,” Compl. J 33, which was in
Delaware, see id. 34. Furthermore, the plaintiff
identified as his address a location in Hockessin,
Delaware to the Court with his filings, see id. at 38;
Pl.’s Opp’n at 1, 33. Therefore, it is undisputed that
the warrant was executed in Delaware, and the
plaintiff makes no objection to the defendants’
assertion that the “search warrant was executed at
[the plaintiffs] residence located in Delaware.”
Defs.’ Mem. at 14. Accordingly, without any
evidence that the District of Columbia is the
“judicial district in which a substantial part of the
App. 49
events or omissions giving rise to the claim
occurred,” 28 U.S.C. § 1391(b)(2), the Court
concludes that the District of Columbia is not the
appropriate venue for the plaintiff to pursue the
return of his property. See Ford-Bev v. United
States. No. 19-cv-2039 (BAH), 2020 WL 32991, at
*11 (D.D.C. Jan. 2, 2020) (“The venue for civil
actions seeking equitable relief in the form of the
return of seized property is determined by resort to
the standard venue statute, 28 U.S.C. § 1391.”).
Even though the Court has concluded that
this Court is not a proper venue for the plaintiffs
Fourth Amendment claim challenging the validity
of the search warrant executed at his home, the
Court nonetheless concludes that it is not “in the
interest of justice[,]” 28 U.S.C. § 1406(a), to transfer
this case to the plaintiffs home forum because the
Complaint suffers from several “substantive
problems[,]” Buchanan. 145 F.3d at 389 n.6. The
Court has already dismissed all of the plaintiffs
other claims for the reasons stated, supra, and
therefore all that remains are the issues regarding
the “release [of the p] lain tiffs personal properties
and t[he] expunge[ment of] any and all of his FBI
records.” Compl. at 37. And, while the plaintiff
might have a cognizable claim at some point for the
return of his property and the expungement of his
FBI records, as the defendants point out, the
plaintiff alleges in his Complaint that “to the
present day” he has received “messages from a
hacker group” that he believes are “likely phishing
attacks from the FBI[ ] or its intelligence assets[,]”
id. H 52. Accordingly, as opined by the defendants,
these allegations by the plaintiff do not suggest
that “criminal proceedings against [the p]laintiff
are over.” Defs.’ Mem. at 13. Therefore, not only has
the plaintiff requested return of his property and
the expungement of his FBI records in the wrong
venue, see 28 U.S.C. § 1391(b)(2), but his request
appears premature as well, see United States v.
Farrell. 606 F.2d 1341, 1347 (D.C. Cir. 1979)
(“[C]ourts may rightfully refuse to return claimed
property when . . . the property involved is subject
App. 50
to government retention pending termination of
the trial”); see also United States v. Price. 914 F.2d
1507, 1511 (D.C. Cir. 1990) (per curiam) (“[T]he
District Court has both the jurisdiction and the
duty to ensure the return of the defendant’s
property[,] but only when no government claim lies
against that property”); see also Ford-Bey, 2020
WL 32991, at *7 (same). Accordingly, because the
plaintiffs property was not seized in the District of
Columbia and matters related to the property may
not have come to an end, the Court dismisses
without
prejudice
the
plaintiffs
Fourth
Amendment claims as they pertain to the seizure
of his personal property.
IV.
CONCLUSION
For the foregoing reasons, the Court
concludes that it must grant the defendants’
motion to dismiss and dismiss the plaintiffs
Complaint.
SO ORDERED this 15th day of December,
2023.17
REGGIE B. WALTON
United States District Judge
17 The Court will contemporaneously issue an Order
consistent with this Memorandum Opinion.
App. 51
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 24-5005
2023
September Term,
l:22-cv-00352-RBW
Filed On: July 2, 2024
Weili Steve Chang,
Appellant
v.
United States of America, et al.
Appellees
BEFORE: Katsas, Rao, and Childs, Circuit
Judges
ORDER
Upon consideration of the motion for
summary affirmance and the supplement thereto,
the opposition to the motion, and the reply, it is
ORDERED that the motion for summary
affirmance be granted. The merits of the parties'
positions are so clear as to warrant summary
action. See Taxpayers Watchdog. Inc, v. Stanley.
819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). The
district court correctly concluded that it lacked
jurisdiction over appellant’s claims related to the
Department of Justice’s “China Initiative” because
those claims are moot. See Clarke v. United States.
915 F.2d 699, 207 (D.C. Cir. 1990) (en banc). The
district court also correctly concluded that
appellant failed to state a claim for an unlawful
search under the Fourth Amendment because he
App. 52
provided no factual support for his allegation that
appellees knowingly included false statements in
the affidavit supporting their application for a
warrant to search his home. See Franks v.
Delaware. 438 U.S. 154, 155-56 (1978). In addition,
the district court correctly held that appellant
failed to state a claim that appellees violated his
substantive due process or equal protection rights
under the Fifth Amendment because he alleged
neither that appellees engaged in egregious or
outrageous conduct, see Butera v. District of
Columbia. 235 F.3d 637, 651 (D.C. Cir. 2001), nor
that he was treated differently than a similarly
situated individual of a different race, see Tate v.
District of Columbia. 627 F.3d 904, 910 (D.C. Cir.
2010).
Further, the district court did not err in
rejecting appellant’s request to overturn the
Supreme Court’s decision in Korematsu v. United
States. 323 U.S. 214 (1944), even assuming that
case has not already been overturned, because a
district court lacks the power to overturn Supreme
Court precedent. See, e.g.. Vick v. United States.
304 F.2d 379, 380-81 (D.C. Cir. 1962). Finally, the
district court did not err in concluding that the
District of Columbia is not the proper venue for
appellant’s request for an order returning his
seized personal electronic devices and “expunging”
files related to the government’s investigation of
him, and the court did not abuse its discretion in
dismissing that request rather than transferring it.
See Naartex Consulting Corn, v. Watt. 722 F.2d
779, 789 (D.C. Cir. 1983).
Pursuant to D.C. Circuit Rule 36, this
disposition will not be published. The Clerk is
directed to withhold issuance of the mandate
herein until seven days after resolution of any
timely petition for rehearing or petition for
App. 53
rehearing en banc. See Fed. R. App. P. 41(b); D.C.
Cir. Rule 41.
Per Curiam
*
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