O'Donnell v. United States Agency for International Development ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHRISTOPHER O’DONNELL,
Plaintiff,
v. Case No. 1:18-cv-03126 (TNM)
UNITED STATES AGENCY FOR
INTERNATIONAL DEVELOPMENT,
Defendant.
MEMORANDUM OPINION
Christopher O’Donnell sued the U.S. Agency for International Development (“USAID”)
under the Administrative Procedure Act, 5 U.S.C. § 701 et seq, alleging that it has unlawfully
failed to release certain Country Development Cooperation Strategies (“Cooperation
Strategies”). USAID has moved to dismiss Mr. O’Donnell’s Complaint for lack of standing and
for failure to state a claim. For the reasons given below, the Court will grant USAID’s Motion to
Dismiss.
I.
Cooperation Strategies detail USAID’s priorities for international development projects.
“Strategic planning in a country or region . . . is the process by which USAID defines its
objectives for development to maximize the impart of [its] work.” Compl. Ex. 2 at 2, ECF No.
1-2. 1 And Cooperation Strategies communicate “development needs, constraints, and
opportunities; specify[] a Mission’s focused choice of objectives; and defin[e] associated
resource priorities and planned implementation approaches.” Id. at 4. They “lay[] the
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Citations are to the page numbers generated by this Court’s CM/ECF system.
groundwork for subsequent decision making,” “bring[] all” staff “to a common understanding
about program priorities,” and “create[] a forum for interaction and buy-in, particularly with
local stakeholders and partners.” Id. at 2–3. Once a Cooperation Strategy is approved, USAID
staff in the country define in greater detail how they will operationalize the Cooperation
Strategy. Id. at 3. Eventually, USAID identifies projects to implement the Cooperation Strategy
and issues solicitations for bids for the projects. See Compl. ¶ 11, ECF No. 1
Mr. O’Donnell argues that USAID must issue Cooperation Strategies for particular
countries. See id. ¶ 6. But USAID has failed to do so. See id. ¶¶ 5, 13. That failure, he argues,
harms small businesses like his, which are interested in responding to USAID’s bid solicitations.
See id. ¶¶ 3, 5a, 11. Small businesses must travel and meet with USAID staff to discuss
information that the Cooperation Strategies would otherwise include. Id. ¶ 11. Thus, Mr.
O’Donnell argues that USAID has violated the APA and asks the Court to compel the agency to
post Cooperation Strategies for certain countries to its website. See id. ¶ 5d.
USAID, however, maintains that Mr. O’Donnell lacks standing under Fed. R. Civ. P.
12(b)(1), and he fails to state a claim upon which relied can be granted, Fed. R. Civ. P. 12(b)(6).
See Def.’s Mot. to Dismiss at 1, ECF No. 8. Because Mr. O’Donnell is proceeding pro se, the
Court advised him of his responsibility to respond to USAID’s motion. See Order, ECF No. 9.
He responded, but his opposition did not address USAID’s substantive arguments. See Pl.’s
Opp’n, ECF Nos. 10 and 10-1. Instead, he pointed out that USAID has updated some
Cooperation Strategies on its website that he complained were missing or expired. See id. at
ECF No. 10-1 at 1.
“It is well understood in this Circuit, that when a plaintiff files an opposition to a
dispositive motion and addresses only certain arguments by the defendant, a court may treat
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those arguments that the plaintiff failed to address as conceded.” Hopkins v. Women’s Div., Gen.
Bd. of Glob. Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (emphasis added). But because
Mr. O’Donnell is proceeding pro se and responded to USAID’s Motion to Dismiss, the Court
will not treat USAID’s arguments as conceded.
Even so, Mr. O’Donnell has failed to state a claim upon which relief may be granted.
The Court construes his filings liberally, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), but
even under a liberal reading, he has failed to point to any authority that requires the USAID to
issue Cooperation Strategies on its public website.
II.
A motion to dismiss under Rule 12(b)(1) “presents a threshold challenge to the court’s
jurisdiction.” And it is the plaintiff’s burden to establish jurisdiction by a preponderance of the
evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). When reviewing such a
motion, 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. Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir.
2011).
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 for relief “plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). In other words, a plaintiff must put forth “factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must treat the
complaint’s factual allegations as true, “even if doubtful in fact.” Twombly, 550 U.S. at 555.
But it need not accept as true legal conclusions set forth in a complaint. Iqbal, 556 U.S. at 678.
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III.
USAID claims that Mr. O’Donnell lacks standing. “[A] showing of standing is an
essential and unchanging predicate to any exercise of a court’s jurisdiction.” Fla. Audubon Soc’y
v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996). And the irreducible constitutional minimum of
standing consists of three elements: (1) an injury in fact, (2) fairly traceable to the challenged
conduct, and (3) that is likely to be redressed by a favorable judicial decision. Spokeo v.
Robinson, 136 S. Ct. 1540, 1547 (2016). According to USAID, Mr. O’Donnell has not
established either of the first two elements.
But “[a]t the pleading stage, general factual allegations of injury resulting from the
defendant’s conduct may suffice.” Lujan, 504 U.S. at 561. What is more, Mr. O’Donnell is
proceeding pro se. “A document filed pro se is to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers.” Erickson, 551 U.S. at 94.
At this stage, Mr. O’Donnell has alleged facts sufficient to find standing, but just.
Liberally construed, Mr. O’Donnell’s Complaint alleges that he must “invest significant
resources” to learn about USAID funding priorities in certain countries that Cooperation
Strategies would otherwise outline. Put differently, he must independently obtain information
that should be freely available. And, he argues, USAID must issue this information. Thus, Mr.
O’Donnell’s alleged injury is traceable to USAID’s failure to post certain Cooperation
Strategies, and his injury would be remedied by granting his request to compel USAID to post
additional Cooperation Strategies to its website.
Even so, Mr. O’Donnell has failed to state a claim upon which relief can be granted. He
challenges USAID’s failure to post certain Cooperation Strategies to its public website. And he
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asks the Court to compel USAID to “publicly post when [] expired or missing [Cooperation
Strategies] will be complete” and “post all [Cooperation Strategies] on the USAID public
website.” See Compl. ¶¶ 5a, 5d. Section 706(1) of the APA permits judicial review of agency
inaction, but only within strict limits. Anglers Conserv. Net. v. Priztker, 809 F.3d 664, 670 (D.C.
Cir. 2016). This case falls outside those strict limits.
Courts can compel an agency only “to take a discrete agency action that is it required to
take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (emphasis in original)
(“SUWA”). This standard reflects the common law writ of mandamus, which the APA “carried
forward” in Section 706(1). Id. at 63. So Section 706(1) grants judicial review only if a federal
agency has a “ministerial or non-discretionary” duty amounting to “a specific, unequivocal
command.” Id at 63–64.
None of the authorities that Mr. O’Donnell cites includes such a command. First, Mr.
O’Donnell points to Section 7032(g) of the 2018 Consolidated Appropriations Act (“CAA”).
Compl. ¶ 6; Compl. Ex. 1 at 4–5, ECF No. 1-1. But that section directs only that before USAID
can expend funds in countries “for which a [Cooperation Strategy] has been concluded after the
date of [the CAA,] . . . USAID shall review such [Cooperation Strategy]” to ensure that it
includes certain features. Nothing in Section 7032(g) requires USAID to create or make publicly
available Cooperation Strategies.
True, Section 7032(g) cites 22 U.S.C. § 8211 to suggest that USAID must create
Cooperation Strategies. But Section 8211 contains no “specific, unequivocal command” that
USAID create Cooperation Strategies. Nor does it even hint that USAID must post Cooperation
Strategies to its public website. Instead, it states that USAID “in each nondemocratic country or
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democratic transition country should develop . . . a strategy to promote democratic principles,
practices, and values.” 22 U.SC.§ 8211(c)(1).
Generally, “should” is precatory, not mandatory. See, e.g., Marx v. Gen. Rev. Corp., 568
U.S. 371, 377 (2013) (noting that Federal Rule of Civil Procedure 54(d)(1)’s use of “the word
‘should’ makes clear that the decision whether to award costs ultimately lies within the sound
discretion of the district court”); Jolly v. Listerman, 672 F.2d 935, 945 (D.C. Cir. 1982) (“use of
the word ‘should’ . . . detracts significantly from any claim that this guideline is more than
merely precatory”); Lambert v. Austin Ind., 544 F.3d 1192, 1196 (11th Cir. 2008) (“The word
‘should’ means ‘usually no more than an obligation of propriety or expediency, or a moral
obligation.’”); United States v. Maria, 186 F.3d 65, 70 (2d Cir. 1999) (“the common meaning of
‘should’ suggests or recommends a course of action, while the ordinary understanding of ‘shall’
describes a course of action that is mandatory”). And Mr. O’Donnell points to nothing
suggesting that “should” as used in Section 8211 has a meaning other than to its usual meaning.
Whatever USAID should do, Section 8211 does not contain the kind of “mandatory,
nondiscretionary duty” courts can compel agencies to perform. Indeed, it appears Congress
intended Section 8211(c)(1) to be discretionary, not obligatory. Earlier versions of that section
ordered that USAID “shall develop . . . a strategy to promote democratic principles, practices,
and values.” See H.R. 982 § 106, 110th Cong. (2007). But Congress substituted the mandatory
“shall” for the more discretionary “should,” 22 U.SC.§ 8211(c)—a substantive change, as noted
by commentators. See Patrick J. Glen, The Advance of Democracy Act and the Future of United
States Democracy Promotion Efforts, 9 Santa Clara J. Int’l L. 273, 294–95 (2011); see also
Maria, 186 F.3d at 70 (comparing “should” with “shall”). Meanwhile, other subsections of
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Section 8211 retained the more mandatory “shall,” suggesting that the two terms have different
force. Compare H.R. 982 § 101(b)(2) with 22 U.S. C. § 8211(a)(1).
Courts “must presume that a legislature says in a statute what it means and means in a
statute what it says.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992). And in its
current form, Section 8211 simply does not contain a “specific, unequivocal command” that
USAID has a “non-discretionary duty” to issue Cooperation Strategies.
Finally, Mr. O’Donnell points to Section 7060(a) of the CAA and Section 201 of
USAID’s Automated Directive System. But neither of these authorities helps his claim. Section
7060(a) provides only that certain appropriations may be available for education programs
identified in Cooperation Strategies. Meanwhile, USAID argues that the Automated Directive
System is neither statutory nor regulatory authority with the force of law, Mot. to Dismiss at 9
n.6, and “[t]he limitation to required agency action rules out judicial direction of even discrete
agency action that is not demanded by law,” SUWA, 542 U.S. at 65 (second emphasis added).
But the Court need not decide whether the Automated Directive System has any legal force
because Mr. O’Donnell has pointed to no “specific, unequivocal command” in Section 201
requiring USAID to issue Cooperation Strategies. See SUWA, 542 U.S. at 63–64.
Ultimately, Mr. O’Donnell has failed to point to legal authority that requires USAID to
issue Cooperation Strategies. If he wishes to obtain this information, there may be alternative
means, such as the Freedom of Information Act. But the Court cannot compel an agency to act
beyond its non-discretionary duties commanded by law. See id. at 63–64. So Mr. O’Donnell has
failed to state a claim upon which relief may be granted.
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IV.
For these reasons, the Defendant’s Motion to Dismiss will be granted. A separate order
will issue.
2019.07.01
11:52:08 -04'00'
Dated: July 1, 2019 TREVOR N. McFADDEN, U.S.D.J.
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