UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) WEIH STEVE CHANG, ) ) Plaintiff, ) ) v. ) Civil Action No. 22-352 (RBW) ) UNITED STATES OF AMERICA, ) et al., ) ) Defendants. ) )

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.”) ¶¶ 54–59, ECF No. 1. The plaintiff

alleges violations of the separation of powers doctrine of the United States Constitution, see id.

¶¶ 143–47; Article II, Section 3 of the Constitution, see id. ¶¶ 143–168; the Fourth Amendment

to the Constitution, see id. ¶¶ 148–55; the Fifth Amendment to the Constitution, see id. ¶¶ 156–

168; the Fourteenth Amendment to the Constitution, see id. ¶¶ 162–68; and the Administrative

Procedures Act (“APA”),

(2)(A)–(D), see

¶¶ 169–887. 1 Currently pending

before the Court is the defendants’ motion to dismiss the plaintiff’s Complaint pursuant to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See Defendant’s Motion to Dismiss

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 plaintiff. (“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. BACKGROUND

A. 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), https://www.justice.gov/opa/speech/attorney-

general-jeff-sessions-announces-new-initiative-combat-chinese-economic-espionage. 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.”

The Department webpage dedicated to the China Initiative further describes the

effort as follows:

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 Plaintiff’s 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. 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.,

, 24 n.7 (D.D.C. 2017) (Walton, J.) (“[C]ourts in this jurisdiction have frequently taken judicial notice of information posted on official public websites of government agencies.” (quoting Pharm. Research & Mfrs. of Am. v. U.S. Dep’t of Health & Human Servs.,

(D.D.C. 2014))).

2 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 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.,

https://www.justice.gov/archives/nsd/information-about-department-justice-s-china-initiative-

and-compilation-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.justice.gov/opa/speech/assistant-attorney-general-matthew-olsen-delivers-remarks-

countering-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.

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 [D]epartment. 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 approach . . . . I want to emphasize my belief that

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.

3 the [D]epartment’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 [D]epartment 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 [D]epartment is committed to protecting the civil rights of everyone in our country. But this erosion of trust in the [D]epartment 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 plaintiff’s Complaint unless otherwise

specified. See Compl. The plaintiff alleges that “from November 2016 to November 2019,” he

was employed by a private health insurance company and “worked remotely at his residence in

Delaware.” Id. ¶ 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.” Id. ¶ 35. The

plaintiff’s testing allegedly showed that the new laptop “was not as secure[ ] as the older laptop,”

id. ¶ 36, so the plaintiff “decided to experiment[,]” id. ¶ 36, with the new laptop “by running a

separate operating system for personal use[,]” id. ¶ 37. On or about November 5, 2019, “this use

4 was detected” by plaintiff’s 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.” Id.

On November 8, 2019, the plaintiff “readily agreed” to his employer’s instructions “to return all

company equipment[.]” Id. ¶ 38. The plaintiff’s employer also requested that the plaintiff “bring

in his own external drive(s) when returning the company equipment.” Id. 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. Id.

¶ 39. However, the Chief Security Officer “did not ask for any of [p]laintiff’s personal

belongings.” Id. The plaintiff further alleges that “[b]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.” Id. ¶ 40. The plaintiff refused to give the

employer his personal drives and “offered to come to the company headquarters in person to sign

an affidavit attesting that no disclosure of [protected health information] had ever occurred.” Id.

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.

Id. ¶ 41. According to the plaintiff, “[t]he caller demanded that [the p]laintiff surrender his

external drive(s).” Id. 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.” Id. The

plaintiff returned the call later that evening and the person he spoke to “identified himself as

someone from a law enforcement agency from Pittsburg[h], Pennsylvania and once again,

demanded that [the p]laintiff return his personal drive(s) to the [former employer].” Id. The

5 plaintiff “suspected that he was being lied to and that the caller was merely pretending to be a

law enforcement officer.” Id.

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.” Id. ¶ 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],” id. ¶ 4, executed a search warrant “of [the] plaintiff’s

residence” and seized “over 125 electronic devices,” id. ¶ 33, that the FBI “retains to this day[,]”

id. ¶ 44. The plaintiff further alleges that, on August 7, 2020, the FBI “sought another search

warrant for [the p]laintiff’s Google account.” Id. ¶ 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.”

Id. ¶ 50. “In October 2020[,] and nearly a year after the 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.” Id. ¶ 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.” Id. The plaintiff therefore contends that the

FBI “willfully and deliberately fabricate[d] evidence to support the first search warrant on [the

p]laintiff’s residence.” Id. ¶ 152. The plaintiff further asserts that, “[b]ut for his Chinese

6 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 plaintiff’s former employer].” Id. ¶ 33.

The plaintiff alleges that he was “one of the many thousands of suspects discriminated

against and illegally targeted under the ‘China Initiative,’” id. ¶ 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 employer]’s false, uninvestigated claims as probable cause for the search warrant. By August 7, 2020, after the FBI had obviously failed to gather sufficient evidence from over 125 electronic devices seized in the raid, it sought another search warrant for [the p]laintiff’s 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.

Id. ¶ 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]laintiff’s extensive access to healthcare data is of great interest

to the group.” Id. ¶ 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.” Id. ¶ 52.

Moreover, the plaintiff alleges that pursuant to the China Initiative “the [former]

government-sponsored program institutionalizes discrimination based on race [and was] falsely

disguised as a national security program,” id. ¶ 3, and which resulted in the “FBI [ ] target[ing]

5 Although the plaintiff alleges that the FBI “issued the search warrant,” id. ¶ 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.

7 citizens because of their Chinese ancestry[,]” id. ¶ 11. According to the plaintiff, the FBI’s

“decades-long practice of racial-profiling of persons including those of Chinese heritage

exemplifies the historic[al] and habitual abuse of its powers.” Id. ¶ 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 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., 115thCong. 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 FBI looking for “nontraditional collectors[.]”

Id. ¶ 23.

The plaintiff claims that “as the government did in Korematsu[ v. United States,

(1944)], [the d]efendants knowingly, willfully, and deliberately devised and

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.

8 executed a racially predicated national security program of selective prosecution by designating

an entire ethnic group as ‘fraudsters[,]’[ ] ‘spies[,]’[ ] ‘traitors[,]’[ ] or ‘thieves[.]’[ ]” Id. ¶ 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.

Id. ¶ 8.

The plaintiff also claims that,

[a]s a direct and proximate result of [the d]efendants’ 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 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 d]efendants’ ongoing unlawful conduct.

Id. ¶ 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 id. ¶¶ 143–47; (2)

Article II, Section 3 of the Constitution, see id. ¶¶ 143–47, 148–55, 156–61, 162–68; (3) the

Fourth Amendment, see id. ¶¶ 148–55; (4) the Fifth Amendment, see id. ¶¶ 156–61, 162–68; (5)

the Fourteenth Amendment, see id. ¶¶ 162–68; and (6) violation of the APA, see id. ¶¶ 169–73,

174–80, 181–87. In response, on August 19, 2022, President Biden, Wray, Demers, and the

7 Korematsu is the infamous decision upholding the forcible relocation of Japanese-Americans to concentration camps during World War II. See generally Korematsu,

.

9 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

A. Rule 12(b)(1)

“Federal [district] courts are courts of limited jurisdiction[,]” Kokkonen v. Guardian Life

Ins. Co. of Am.,

(1994), and “[a] motion for dismissal under [Federal Rule of

Civil Procedure] 12(b)(1) ‘presents a threshold challenge to the [C]ourt’s jurisdiction[,]’”

Morrow v. United States,

(D.D.C. 2010) (Walton, J.) (quoting Haase v.

Sessions,

(D.C. Cir. 1987)). Thus, the Court is obligated to dismiss a claim if

it “lack[s] . . . subject-matter 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,

,

the plaintiff bears the burden of establishing that the Court has subject-matter jurisdiction, see

Lujan v. Defs. of Wildlife,

(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,

(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,

(D.D.C. 2000); see Jerome

Stevens Pharms., Inc. v. Food & Drug Admin.,

(D.C. Cir. 2005).

Additionally, the Court must “assume the truth of all material factual allegations in the complaint

8 Although the plaintiff also brought this suit against “John and Jane Doe(s)[,]” Compl. ¶ 59, who are purportedly “federal law enforcement agents, supervisors, and other officials who participated in the . . . investigation of [the p]laintiff[,]”

the motion to dismiss was not filed on behalf of the aforementioned John and Jane Doe defendants, see Defs.’ Mem. at 1 n.1.

10 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. Corp.,

, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi,

(D.C. Cir.

2005)). However, “the [p]laintiff’s 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 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,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(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.”

(citing Twombly,

).

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,

(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,

. Thus, “[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.”

at 678 (citing

11 Twombly,

). 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,

. 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.,

(D.C. Cir. 1997).

C. Pro Se Complaints

Pro se complaints are held to “less stringent standards than formal pleadings drafted by

lawyers.” Haines v. Kerner,

(1972). See also Abdelfattah v. U.S. Dep’t of

Homeland Sec.,

(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,

(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,

, 681–82 (D.C. Cir. 2009) (quoting Iqbal,

.

Furthermore, “[a] plaintiff’s 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,

, at *6 (D.D.C. June 11, 2021)

(Walton, J.) (internal citation omitted); see also Richardson v. United States,

(D.C. Cir. 1999) (“[T]he [d]istrict [c]ourt should have read all of [the pro se plaintiff]’s filings

together before dismissing this case for lack of subject matter jurisdiction.”).

12 III. ANALYSIS

The defendants move to dismiss the plaintiff’s Complaint, arguing that (1) “the Court

lacks jurisdiction over the Complaint because there exists no case or controversy” as to the

plaintiff’s claims based on Korematsu, Defs.’ Mem. at 10; (2) the Court lacks jurisdiction over

the Complaint because the plaintiff’s claims about the China Initiative are moot, see id. at 12;

and (3) “[the p]laintiff pleads no facts sufficient to state a claim for an unlawful search and

seizure[,]” id. at 32; and (4) “[the p]laintiff fails to state a due process claim under the Fifth

Amendment[,]” id. 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. Id. 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 d]efendants 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 d]efendants,” id. 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 warrant[,]” id. at 25–26; (4) that “[t]he ‘Whole-of-Society Response’ called for public-

private partnership to surveille persons of Chinese heritage for espionage and economic

espionage activities which implie[d] multiple levels of due process deprivation[,]” id. at 27, and

(5) that the Court should postpone ruling on the plaintiff’s request to return his property because

the property is “not essential for seeking declaratory judgment and other injunctive relief,” id. at 13.

9 President Biden also moves to dismiss the plaintiff’s Complaint because “[t]here is no basis for this Court to order equitable relief against the President.” Defs.’ Mem. at 9. The President is correct, Newdow v. Roberts,

(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.

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,

(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.

A. The Plaintiff’s Korematsu Claim

The Court first addresses whether it has subject-matter jurisdiction to entertain the

plaintiff’s 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,

(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,

(Jackson, J., dissenting)).

The defendants argue that the plaintiff’s 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 d]efendants will continue to

rely to discriminate against [the p]laintiff.” Pl.’s Opp’n at 12. For the following reasons, the

Court concludes that it lacks subject-matter jurisdiction over the plaintiff’s claim based on

Korematsu.

“Article III of the Constitution confines the federal courts to adjudicating actual ‘cases’

and ‘controversies.’” Allen v. Wright,

(1984). “In an attempt to give

14 meaning to Article III’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,

(D.C. Cir. 1996). If a plaintiff lacks Article III standing, a district court

need not delve into [a plaintiff's] myriad constitutional and statutory claims . . . because a court may not resolve contested questions of law when its jurisdiction is in doubt, as [h]ypothetical 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,

(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,

(D.C. Cir. 2010).

Here, the Court concludes that the plaintiff has not established that his alleged injury is

“concrete and particularized.” Lujan,

. To be sufficiently “particularized,” the

alleged injury “must affect the plaintiff in a personal and individual way.”

at 560 n.1. 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.

15

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,

, 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 “confer[red] unrestricted

war powers on the government,” id. ¶ 64, “established the “Separate but Equal” doctrine

targeting Asian Americans under color of national security,” id. ¶ 81, and permitted the FBI to

engage in a “decades-long practice of racial-profiling of persons including those of Chinese

heritage[,]” id. ¶ 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,

(D.D.C.

2015), aff’d,

(D.C. Cir. 2016) (internal quotation marks omitted). Furthermore,

“even when [the Supreme Court has] allowed litigants to assert the interests of others, 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,

(2013) (internal quotation marks omitted). Although asserting that the holding in Korematsu

“justified discriminatory treatment of inhabitants of Puerto Rico and Japanese[-]Americans,”

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,

n.1. 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,

; see also

16 Menoken v. Miles,

(D.D.C. 2017) (“[The plaintiff’s] 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 plaintiff’s complaint is

devoid of any concrete allegations, such as specific actions of the various [d]efendants 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,

, 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.”).

B. The Plaintiff’s China Initiative Claims

The Court now turns to the additional jurisdictional issue of whether the plaintiff’s claims

regarding the China Initiative are moot. Much of the plaintiff’s 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

¶¶ 169–187. As to the constitutional challenges, in Count I, the

plaintiff alleges that “[t]hrough their administrative fiats the [ d]efendants made legislative rules

without Congressional approval and without meeting the notice and comment requirements[,]”

id. ¶ 145, which resulted in the defendants “violat[ing] the Separation of Powers and the Take

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.

17 Care Clause by exceeding their constitutional boundaries, making laws, and invoking national

security authority without declaring a war of any kind[,]” id. ¶ 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 d]efendants 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. ¶ 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.” Id. ¶ 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.” Id. ¶ 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. at 37; (2) a declaration that “the ‘China Initiative’ is unlawful pursuant

to

(2)(A), (B), (C), (D), & (F),” id.; (3) a permanent injunction prohibiting “[the

d]efendants and their officers, employees, and agents from applying and enforcing the rules,

regulations, and policies promulgated by the ‘China Initiative Working Group,’” id.; (4) the

“[v]acat[ur] and set[ting] aside [of] the ‘China Initiative,’” id.; and (5) an order compelling “the

[d]efendants 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[,]’”

.

The defendants assert that the plaintiff’s claims regarding the China Initiative are moot

because “the [ ] Department discontinued the China Initiative in February 2022,” and therefore

18 “[the p]laintiff’s 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

d]efendants” and alleges that “[d]efendant 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,

(D.C. Cir. 1997) (quoting Honig v. Doe,

(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[,]’”

(internal quotation marks omitted)

(quoting Preiser v. Newkirk,

(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-than-speculative chance of affecting them in the future.’” Clarke v. United States,

(D.C. Cir. 1990) (quoting Transwestern Pipeline Co. v. Fed. Energy Regul.

Comm’n,

, 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 Cnty. v. Rogoff,

(D.D.C. 2017) (internal quotation marks omitted)

(quoting Conservation Force, Inc. v. Jewell,

(D.C. Cir. 2013)).

19 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,

(D.D.C. 2008) (citing City of Los Angeles v. Lyons,

, 103–04 (1983). When a plaintiff seeks injunctive relief, he may not “simply rely on

past injury to show standing.” Johnson,

. Indeed, the plaintiff must establish

that he has “sustained[,]”

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.”

; see also

O’Shea v. Littleton,

, 495–96 (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 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,

(1979) (quoting Weinstein v. Bradford,

(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,

(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.”

“The party seeking jurisdictional dismissal must establish mootness,

20 while the opposing party has the burden to prove that a mootness exception applies.” Reid v.

Hurwitz,

(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,

(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]laintiff’s 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 will be

repeated in circumstances where it becomes impossible for a court to grant any effectual relief to

the prevailing party.’”

(citing United States v. Philip Morris USA, Inc.,

(D.C. Cir. 2009)). The defendants further argue that this Court should dismiss the plaintiff’s

claims pertaining to the China Initiative as moot because “[the p]laintiff’s 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. “[d]efendant Wray continues to deliberately spread disinformation about the FBI’s

racial profiling practice[,]” Pl.’s Opp’n at 8.

21 2. “[d]efendant 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[,]” id. 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 d]efendants[,]” id.

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.,

(2018) (quoting Abbott Laboratories v. Gardner,

(1967)

(alterations in original)); see also

. 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,

(D.C. Cir. 2016) (internal

quotation marks omitted) (quoting U.S. Parole Comm’n v. Geraghty,

(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,]” Preiser,

, 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,

(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 Cmty.,

;

see Larsen v. U.S. Navy,

(D.C. Cir. 2008) (“[B]ecause the [agency has] already

eliminated the [challenged p]olicy and [the] plaintiffs never allege that the [agency] will

22 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.,

, 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 plaintiff’s 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 action 11 as the APA defines those terms”), the Court, in any event, “lacks

jurisdiction to decide [the] case[,]” Larsen,

, because there is no current “actual

case[ ] or controversy[,]”

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 Nation-State Threats, U.S. Dep’t of Just. (Feb. 23, 2022),

https://www.justice.gov/opa/speech/assistant-attorney-general-matthew-olsen-delivers-remarks-

countering-nation-state-threats. 12 This cessation of the China Initiative renders the declaratory

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 expertise and discretion.”); see also MediNatura, Inc. v. Food & Drug Admin.,

, 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. Chaney,

(1985)); see also United States v. Simmons, No. 18-cr-344 (EGS),

, 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. Twentymile Coal Co.,

(D.C. Cir. 2006)).

For the reasons set forth in footnote 3, supra, the Court takes judicial notice of the transcript of Assistant Attorney 12

General Olson’s remarks because it is available on the Department’s public website.

23 and injunctive relief requested by the plaintiff, see Compl. at 37 (requesting the Court “enjoin[ ]

Agency [d]efendants 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 plaintiff’s] rights relative to”

the terminated program, “thus making this case classically moot for lack of a live controversy[,]”

Akiachak Native Cmty.,

; see

(dismissing as moot a claim challenging a

regulation which was subsequently rescinded); see also Nat’l Black Police Ass’n,

(dismissing as moot a challenge to District of Columbia campaign contribution limits

because an “intervening event [ ] end[ed] any live controversy between [the] plaintiffs and the

[defendant]” when “the [defendant] enact[ed] [ ] new campaign contribution legislation”);

MoveCorp v. Small Bus. Admin., No. 20-cv-1739,

, 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 present[ed] a live controversy”). Accordingly, the Court

concludes that the defendants have met their burden of establishing that the plaintiff’s 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

24 review[.]” Weinstein,

. 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,

. 13

“[E]ven though the specific action that the plaintiff challenges has ceased, a claim for

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,

(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,

, 523

(D.C. Cir. 2020) (quoting Weinstein,

).

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.,

(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 duration is

typical of the challenged action.” Del Monte Fresh Produce Co.,

(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,

(D.C. Cir. 2000) (internal quotation marks omitted) (emphasis

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 sponte 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,

(D.D.C. 2016) (“[S]ubject matter jurisdiction may not be waived, and . . . courts may raise the issue sua sponte.”).

25 added). Thus, the challenged action must, in and of itself, be so time-bound that it evades

review. See Grant v. Vilsack,

(D.D.C. 2012) (“The ‘capable of

repetition[, yet evading review]’ exception applies to claims that are inherently short-lived.”);

compare, e.g.,

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. Squillacote,

(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.,

(D.D.C. 2014) (quoting Del Monte Fresh Produce Co.,

).

Here, the underlying action challenged by the plaintiffs is neither “inherently

short-lived[,]” Grant,

, nor typically “short [in] duration[,]” People for the

Ethical Treatment of Animals, Inc.,

. 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.1, 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/assistant-attorney-general-matthew-olsen-delivers-remarks-

countering-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

26 insufficient to “fully litigate[ agency claims] prior to cessation or expiration[,]” Del Monte Fresh

Produce Co.,

. 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[,]”

(emphasis added). See People for the Ethical Treatment of Animals,

Inc.,

(concluding that the plaintiff’s challenge to Secretary’s issuance of

certain permits did not evade review, based upon the plaintiff’s 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,

. 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.,

(citing Weinstein,

) (emphasis in original), and “a deficiency in one area

renders the exception itself moot[,]”

the Court need not reach the second prong of the

analysis—namely, whether the challenged action is capable of repetition, see

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.1.a, the Court must next consider whether the second

27 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 to prove that a mootness exception

applies.” Reid,

.

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,

. 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 Resp. &

Ethics in Wash. v. Wheeler,

(D.D.C. 2019) (quoting Aref v. Lynch,

(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.,

, 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,

)).

Regarding the first prong of the “voluntary cessation” exception, namely, whether “there

is no reasonable expectation [ ] that the alleged violation will recur,” Aref,

,

where “the defendant is a government actor—and not a private litigant—there is less concern

about the recurrence of objectionable behavior[,]” Citizens for Resp. & Ethics in Wash. v. Secs.

28 & Exch. Comm’n,

(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 Black Police Ass’n,

. “Rather, there

must be evidence indicating that the challenged [policy] likely will be re[instated].”

(emphasis added); see also Larsen,

(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/opa/speech/assistant-attorney-general-matthew-

olsen-delivers-remarks-countering-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.

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

29 d]efendants.” Pl.’s Opp’n at 15. The plaintiff further alleges that “[d]espite the discontinuation

of the ‘China Initiative in February 2022, [d]efendant 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.”

However, neither of these allegations provide “evidence

indicating that the challenged [policy] likely will be re[instated][,]” Nat’l Black Police

Ass’n,

, 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,

(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,

(quoting Am. Bar Ass’n v. Fed. Trade Comm’n,

(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,

(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,

, at *13 (D.D.C. June 8, 2023) (Walton, J.) (quoting Larsen,

). 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

30 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 reinstituting” it, “any

injunction or order declaring it illegal would accomplish nothing—amounting to exactly the type

of advisory opinion Article III prohibits.” Larsen,

. 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,

, 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,

(quoting Cnty. of L.A., 440 U.S. at 631).

Consequently, the plaintiff having failed to establish that either of the above-referenced

exceptions to mootness apply in this case, the Court concludes that it must dismiss as moot

Counts I, V, VI, and VII of the plaintiff’s Complaint.

However, the plaintiff’s 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 “[ ]accompanied 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. ¶¶ 148–168 (alleging violations under

the Fourth, Fifth, and Fourteenth Amendments); see id. at 37 (requesting that the Court

31 “[o]rder[ the d]efendants to release [the p]laintiff’s personal properties and to expunge any and

all of his FBI records[ ]”); id. at 38 (requesting an “[a]ward[ for the p]laintiff [for] reasonable

costs and expenses, including attorneys’ fees[ ]”); id. (requesting the Court “[g]rant such other

and further relief as . . . deem[ed] just and proper[ ]”). Accordingly, the Court will address the

merits of those claims next.

C. The Plaintiff’s Fourth Amendment Claim

Having dismissed the plaintiff’s claims based on Korematsu and the China Initiative for

lack of subject-matter jurisdiction, the Court will now address the plaintiff’s 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 employer]’s false, uninvestigated claims as probable cause for the search warrant.

Compl. ¶ 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.”

Id. ¶ 51. Specifically, the plaintiff alleges that “[his former employer] and the FBI knowingly

and willfully lied in support of the search warrant[, by] stating that:” (1) “‘as part of [the

plaintiff’s] duties, [the plaintiff] was responsible for using a laptop computer[ . . . ]and

transmitting relevant data to various state regulatory agencies nationwide[ . . . ,]’” id. ¶ 45; (2)

“that ‘[ ] security personnel knew that [the plaintiff’s] 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 connection[,]’” id. ¶ 46; and (3) “that on or about

32 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 building[,]’” id. ¶ 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[,]’” id. ¶ 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[,]” id. ¶ 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,]” id. ¶

47. The plaintiff therefore contends that the FBI “willfully and deliberately fabricate[d] evidence

to support the [ ] search warrant on [the p]laintiff’s residence.” Id. ¶ 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 plaintiff’s former employer].” Id. ¶ 33. To summarize his Fourth

Amendment claim, the plaintiff asserts that “[w]hen [the FBI] raided [the p]laintiff’s residence

and then fraudulently applied for other search and seizure orders, [the d]efendants caused and

continue to cause an unreasonable search and seizure of [the p]laintiff’s person, property, papers,

and effects in violation of [the p]laintiff’s privacy, property, and other rights and privileges under

the Fourth Amendment.” Id. ¶ 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]laintiff’s disagreement with the contents of the

33 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

warrant[,]” id. 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,

(D.C. Cir. 2010) (quoting Franks v. Delaware,

(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 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.”

at 155–56; see also

United States v. Richardson,

(D.C. Cir. 1988) (per curiam)) (applying Franks

34 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,

(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,

(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

truth.” Gaston,

. 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. ¶ 45; see also

¶¶ 46–47, and “speculation[ is] not a substantial

showing” to establish a Fourth Amendment violation. Maynard,

. Because there

has been “absolutely no showing [that the affiant] made the statements with scienter [that the

warrant was supported by false information],” Richardson,

, the Court “need not

resolve whether the [three] statements [in the search warrant affidavit] were false or material,”

id. at 293. The plaintiff’s 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,

; see also Pierce

35 v. Mattis,

(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 Plaintiff’s Fifth Amendment Claims

The Court now next turns to the plaintiff’s 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. ¶¶ 156–168. Respectively, as to both Counts, the plaintiff alleges that the

defendants (1) “willfully and deliberately fabricat[ed] evidence against [the p]laintiff . . .

negatively impact[ing the p]laintiff’s liberty to travel, [ ] work, [ ] communicate, and [ ] carry on

other ordinary activities[,]” id. ¶ 158, and that (2) “[w]ithout due process or constitutionally

required legislative action, the [d]efendants . . . subjected [the p]laintiff to selective investigation

and surveillance predicated on [the p]laintiff’s race, ethnicity, or national origin[,]” id. ¶ 166.

The Court will address each Count in turn.

1. The Plaintiff’s Count III Claims

First, as to Count III, the plaintiff alleges that “[a]s a direct and proximate result of the

[ d]efendants’ unlawful conduct, [the p]laintiff had to resign from a federal contractor position in

2020, and [the p]laintiff’s prospects of stable income have been severely and irreversibly

restricted.” Id. ¶ 159. Specifically, the plaintiff believes that the defendants “knew or should

have known that, since 2014, [the p]laintiff used his Google account in communications with

many attorneys and citizens to organize a class action challenging a gender-discrimination law

called ‘Violence against Women Act[,]’” when the FBI sought to access the plaintiff’s Google

account. Id. ¶ 160. The defendants, suspecting the plaintiff has alleged a substantive due

36 process claim under the Fifth Amendment, see Defs.’ Mem. at 34, respond that “[the p]laintiff

fail[s] to identify a liberty or property interest that has been deprived[,]” id., because “[the

p]laintiff pleads no factual material from which a plausible inference can be drawn that any of

[the p]laintiff’s liberty or property interests have been deprived at all, let alone by any acts taken

by [the d]efendants[,]” id. at 35. 14

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 “arbitrary, wrongful government

actions ‘regardless of the fairness of the procedures used to implement them.’” Zinermon v.

Burch,

(1990) (quoting Daniels v. Williams,

, 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. Fenty,

(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,

(D.C. Cir. 2007) (quoting George Washington

14 The defendants also argue that “[t]o the extent [the p]laintiff asserts a procedural due process claim, he must identify the process that is due[,]” and that “[the p]laintiff 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’[,]” Kerry v. Din,

, 90 (2015) (quoting Swarthout v. Cooke,

(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,

, and then “[the Court] ask[s] whether the procedures followed by the [government] were constitutionally sufficient.” Id.; but see Doe by Fein v. District of Columbia,

(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,

, that he has been deprived of as a result of him resigning from his job, see Compl. ¶ 159, or the government seeking a search warrant on his Google account, see Compl. ¶ 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,

, 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,

(dismissing the plaintiff’s claim where she failed to identify the process that was due).

37 University v. District of Columbia,

, 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,

(D.D.C. 2009) (Walton, J.) (quoting Butera

v. District of Columbia,

(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,

, 847 n.8 (1998).

Here, the plaintiff fails to plead such “egregious government misconduct[,]” Decatur

Liquors,

, that “deprive[d him] of [his] life, liberty, or property[,]” Roum,

, sufficient to survive dismissal. As the defendant points out, “[a]lthough [the

p]laintiff alleges that [the d]efendants’ 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,]”

that shows that “[the p]laintiff’s

liberty or property interests have been deprived at all, let alone by any acts taken by

[the d]efendants[,]” 15 id.; see also Iqbal,

(“A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

15 The plaintiff alleges that “[a]s a direct and proximate result of the [ d]efendants’ unlawful conduct, [the p]laintiff had to resign from a federal contractor position in 2020[.]” Compl. ¶ 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 Corp.,

(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,

, 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.

38 defendant is liable for the misconduct alleged.”). Moreover, the FBI “s[eeking] to access the

plaintiff’s [Google] account[,]” Compl. ¶ 160, in conjunction with an investigation is not “so

egregious[ or] so outrageous,” that it has the capacity to “shock the contemporary conscience[.]”

Toms,

. 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,

, his claims made in Count III are dismissed.

2. The Plaintiff’s 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. ¶ 167, and that the defendants “have willfully and deliberately

disregarded the domestic limits placed by the equal protection clauses.” Id. ¶ 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[,]” id., and that

“[the p]laintiff identifies no comparators who bear even a slight resemblance to him[,]” id., he

“fails to state an equal protection claim [under the Fifth Amendment].” 16 Id.

16 The plaintiff also makes equal protection claims under Count IV pursuant to the Fourteenth Amendment, see Compl. ¶ 168, despite having filed this suit against defendants associated with the federal government. San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm.,

, 542 n. 21 (1987) (“[T]he Fourteenth Amendment does not apply [to the federal government]”); see also Miango v. Democratic Republic of the Congo,

, 128 n.7 (D.D.C. 2017) (same). Accordingly, the plaintiff’s claims based on the Fourteenth Amendment must be dismissed. See Lyles v. Hughes, 83 F. Supp.3d 315, 324 n. 1 (D.D.C. 2015) (dismissing the plaintiff’s Fourteenth Amendment claims against the federal government defendants).

39 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,

(D.D.C.

1981) (quoting Washington v. Davis,

(1976)). The clause requires that

“similarly situated persons must be treated alike[,]” Frederick Douglass Found., Inc. v. District

of Columbia,

, 339 (D.D.C. 2021), and where there is “[d]issimilar treatment

of dissimilarly situated persons,”

(quoting Women Prisoners of D.C. Dep’t of Corr. v. District

of Columbia,

(D.C. Cir. 1996)), such conduct “does not violate equal

protection[,]”

(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,

(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 “[d]issimilar treatment of [a ]similarly

situated person[ ],” 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. ¶ 37. Because of his

misconduct, the plaintiff clearly understood that “applicable consequences,” id., 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,

40 Compl. ¶ 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

compel[led,]” Compl. ¶ 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. Id. ¶ 166.Thus, “[t]he threshold inquiry in

evaluating [the plaintiff’s] 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[s are] liable for the

misconduct alleged.” Iqbal,

. 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 Plaintiff’s 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 d]efendants to

release [p]laintiff’s personal properties[.]” Compl. at 37. The defendants argue in their motion

to dismiss that this Court “is not the appropriate venue for [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 plaintiff’s

property] or, alternatively, transfer those claims to the District Court for the District of

Delaware.”

In response, the plaintiff requests that this Court postpone ruling on the

41 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.

(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.

(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.”

(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, see Naartex Consulting

Corp. v. Watt,

(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,

(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,

, 418 (D.D.C.

2020). However, there are no “fixed general rules on when cases should be transferred[.]”

Starnes v. McGuire,

(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

42 “substantive problems with [the plaintiff’s] claims[,]” Buchanan v. Manley,

, 389

n.6 (D.C. Cir. 1998), that outweigh transferring in the “interest of justice[,]”

(a).

Here, the plaintiff has made no allegation that any “part of the events . . . giving rise to

[his] claim,”

(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. ¶ 33,

which was in Delaware, see

. Furthermore, the plaintiff identified as his address a

location in Hockessin, Delaware to the Court with his filings, see

; 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 plaintiff’s]

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 events or omissions

giving rise to the claim occurred,”

(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-Bey v. United States, No. 19-cv-2039 (BAH),

, 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,

.”).

Even though the Court has concluded that this Court is not a proper venue for the

plaintiff’s 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[,]”

(a), to transfer this case to the plaintiff’s home forum because the Complaint suffers from

several “substantive problems[,]” Buchanan,

n.6. The Court has already

dismissed all of the plaintiff’s other claims for the reasons stated, supra, and therefore all that

43 remains are the issues regarding the “release [of the p]laintiff’s 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. ¶ 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

(b)(2), but his request appears premature as well, see United States v. Farrell,

(D.C. Cir. 1979) (“[C]ourts may rightfully refuse to return claimed property

when . . . the property involved is subject to government retention pending termination of the

trial”); see also United States v. Price,

(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,

, at *7 (same). Accordingly, because the plaintiff’s 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 plaintiff’s 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 plaintiff’s Complaint.

44 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.

45