Rodas Cifuentes v. Secretary, Department of Homeland Security et al
ORDER denying 15 Defendants' Motion to Dismiss; adopting 19 Report and Recommendations. Signed by Judge Wendy W. Berger on 9/16/2022. (MDJ)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ASUCENA D. RODAS CIFUENTES,
Case No. 6:21-cv-770-WWB-EJK
SECRETARY, DEPARTMENT OF
HOMELAND SECURITY and ACTING
DIRECTOR, U.S. CITIZENSHIP AND
THIS CAUSE is before the Court on Defendants’ Motion to Dismiss (Doc. 15).
United States Magistrate Judge Embry J. Kidd issued a Report and Recommendation
(“R&R,” Doc. 19), in which he recommends that the Motion be denied. Defendants filed
Objections (Doc. 22).
No party has objected to the relevant background as fully set forth in the R&R and
it is hereby adopted and made a part of this Order accordingly. (Doc. 19 at 1–2).
When a party objects to a magistrate judge’s findings, the district court must “make
a de novo determination of those portions of the report . . . to which objection is made.”
28 U.S.C. § 636(b)(1). The district court “may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.” Id. The district court
must consider the record and factual issues independent of the magistrate judge’s report,
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as de novo review is “essential to the constitutionality of [§] 636.” Jeffrey S. v. State Bd.
of Educ., 896 F.2d 507, 512 (11th Cir. 1990). The objecting party must state with
particularity findings with which it disagrees, along with its basis for the disagreement.
Kohser v. Protective Life Corp., 649 F. App’x 774, 777 (11th Cir. 2016) (citing Heath v.
Jones, 863 F.2d 815, 822 (11th Cir. 1989)). The court will not consider “[f]rivolous,
conclusive, or general objections.” Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir.
1988) (citation omitted).
In the Motion to Dismiss, Defendants argue that Plaintiff’s Amended Complaint
should be dismissed because the relief requested was mooted by Defendants’
adjudication of Plaintiff’s Form I-765. (Doc. 15 at 3). In the alternative, Defendants argued
that this Court lacks jurisdiction because Plaintiff has failed to establish that the denial of
her Form I-765 was arbitrary and capricious. (Id. at 3–4). Magistrate Judge Kidd
recommends denying the Motion to Dismiss on both grounds because Plaintiff is seeking
review of the underlying adjudication of her Form I-765 pursuant to 5 U.S.C. § 706(2), not
just to compel the adjudication of her form. (Doc. 19 at 5–6). With respect to Defendants’
jurisdictional argument, Magistrate Judge Kidd recommends denying the Motion to
Dismiss because Defendants have failed to provide anything more than conclusory
statements and arguments. (Id. at 6). Defendants object to both recommendations.
With respect to mootness, Defendants simply reassert the same argument raised
in the Motion to Dismiss and fail to state any further basis for their disagreement with the
R&R. “It is improper for an objecting party to . . . submit [ ] papers to a district court which
are nothing more than a rehashing of the same arguments and positions taken in the
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original papers submitted to the Magistrate Judge. Clearly, parties are not to be afforded
a second bite at the apple when they file objections to a R & R.” Hall v. Sargeant, No. 18cv-80748, 2018 WL 6019221, at *1 (S.D. Fla. Nov. 16, 2018). Defendants’ objections fail
to address Magistrate Judge Kidd’s finding that the Amended Complaint seeks review of
the agency action, as opposed to the adjudication of her Form I-765, which remains a live
and justiciable controversy. This Court finds the R&R to be well-reasoned and correct in
this respect. Therefore, Defendants’ first objection will be overruled.
Next, Defendants argue that Plaintiff is not entitled to review under the
Administrative Procedure Act (“APA”) because Plaintiff has not established that the denial
of her I-765 Form was arbitrary and capricious. In this respect, Defendants do not dispute
that this argument was woefully underdeveloped in their initial Motion to Dismiss as found
by Magistrate Judge Kidd in the R&R. Instead, Defendants simply expand on the
argument not properly raised in their Motion to Dismiss in an attempt to cure the
deficiency. “[D]istrict courts have wide latitude when deciding whether to consider
arguments first raised in a movant’s objections.” Rios v. United States, No. 17-23715CIV, 2018 WL 7252900, at *1 (S.D. Fla. Jan. 10, 2018) (citing Williams v. McNeil, 557
F.3d 1287, 1292 (11th Cir. 2009)); see also Winslett v. Nutribullet, L.L.C., No. 19-14089CIV, 2020 WL 3316022, at *1 (S.D. Fla. Mar. 30, 2020) (collecting cases). Because the
Court agrees that Defendants’ argument was not properly asserted in the underlying
Motion to Dismiss, the Court finds that the argument was never presented to the
Magistrate Judge and is, instead, first raised in Defendants’ Objections.
Although Defendants initially labeled this as a jurisdictional argument in their
Motion to Dismiss, they fail to argue that it is a jurisdictional bar in their Objections.
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Moreover, the Court notes that section 706(2) of the APA and 28 U.S.C. § 1331 confer
the Court with subject matter jurisdiction to set aside agency actions found to be “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 28 U.S.C.
§ 706(2)(A); Daniel v. Castro, 662 F. App’x 645, 647–48 (11th Cir. 2016); Singh v.
Neufeld, No. 6:05-cv-1344, 2006 WL 4876953, at *2 (M.D. Fla. Feb. 16, 2006).
Defendants have failed to direct this Court to any case stating that the Court cannot
exercise jurisdiction until it has already determined that the agency’s action is arbitrary or
capricious, and this Court has found none. See Dep’t of Homeland Sec. v. Regents of the
Univ. of Cal., 140 S. Ct. 1891, 1905 (2020) (“But before determining whether the
rescission was arbitrary and capricious, we must first address the Government’s
contentions that DHS’s decision is . . . outside this Court’s jurisdiction.”). Accordingly,
because the argument is not clearly jurisdictional and was not properly brought before the
Magistrate Judge, the Court can and does decline to consider the merits of Defendants’
In accordance with the foregoing, it is ORDERED and ADJUDGED as follows:
1. Defendants’ Objections (Doc. 22) are OVERRULED.
2. The Report and Recommendation (Doc. 19) is ADOPTED and
CONFIRMED and made a part of this Order.
3. Defendants’ Motion to Dismiss (Doc. 15) is DENIED.
DONE AND ORDERED in Orlando, Florida on September 16, 2022.
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Copies furnished to:
Counsel of Record
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