Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MOHSEN AHMED, Case No. 25-cv-3523-BJC-VET 12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 v. MOTION TO DISMISS [ECF NO. 9]

14 U.S. SMALL BUSINESS ADMINISTRATION, 15 Defendant. 16 17 On December 10, 2025, Plaintiff Mohsen Ahmed, proceeding pro se, filed this action 18 asserting violations of the Freedom of Information Act (“FOIA”), 5 U.S.C.§ 552, and the 19 Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706 against Defendant U.S. 20 Small Business Administration. (“SBA”). ECF No. 1. SBA now moves under Federal Rule 21 of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss Plaintiff’s Complaint. ECF No. 9. 22 Plaintiff has filed an opposition to Defendant’s motion, to which SBA replied. ECF 23 Nos. 13, 14. For the reasons set forth below, SBA’s motion to dismiss is GRANTED. 24 // 25 // 26 // 27 // 28 1 I. FACTUAL BACKGROUND 2 Plaintiff is a small business owner who filed an SBA 8(a) Business Development 3 Program2 application for Tiger Construction LLC in November 2023. He has faced 4 extensive delays in the completion of his application and has now filed the present action 5 under FOIA and the APA to obtain documents related to that application. 6 The first delay occurred when SBA closed his initial application without notice 7 during a system update. At some point thereafter, Plaintiff filed a new 8(a) application. 8 On March 24, 2025, SBA informed Plaintiff that review was finished, and the application 9 required final director approval. However, SBA took no action. 10 On July 31, 2025, after waiting over four months for director approval, Plaintiff 11 submitted a FOIA request seeking internal communications and documents related to his 12 8(a) application. SBA acknowledged the request on August 7, 2025, and stated it would 13 respond by August 29, 2025. SBA did not respond by the deadline. On September 2, 2025, 14 Plaintiff sent SBA a noncompliance notice. 15 On September 4, 2025, Plaintiff filed a FOIA appeal. On September 26, 2025, SBA’s 16 FOIA Appeals Office issued a formal written decision remanding the request to the Office 17 of Government Contracting and Business Development (“GCBD”) with instructions to 18 provide a determination within 10 business days. The federal government shut down on 19 October 1, 2025, pausing FOIA processing until the government reopened on November 20 13, 2025. On November 13, 2025, Plaintiff emailed SBA letting them know that the 21 remand clock had resumed. On November 17, 2025, Plaintiff sent another follow-up email. 22 SBA did not respond to either inquiry but sent a separate communication stating “their 23 24 25 1 The facts are taken from the Complaint unless otherwise noted. 2 The SBA 8(a) Business Development Program is a “[f]ederal contracting and training 26 program for experienced small business owners who are socially and economically 27 disadvantaged.” U.S. Small Business Administration, https://www.sba.gov/federal- contracting/contracting-assistance-programs/8a-business-development-program (last 28 1 office anticipates completing the processing of your FOIA request by December 5, 2025.” 2 Plaintiff did not receive any response. 3 II. PROCEDURAL BACKGROUND 4 On December 10, 2025, Plaintiff filed the Complaint in this action. ECF No. 1. On 5 February 17, 2026, Defendant SBA filed the present Motion to Dismiss. ECF No. 9. 6 Plaintiff filed an opposition on February 25, 2026. ECF No. 13. Defendant filed a Reply 7 on March 17, 2026. 8 III. LEGAL STANDARD 9 A. Rule 12(b)(1) 10 Article III, Section 2 of the Constitution limits federal courts to hearing “actual cases 11 or controversies.” Spokeo, Inc. v. Robins, 578 U.S. 330, 337 (2016), as revised (May 24, 12 2016). This limitation means the plaintiff must have standing to sue. Id. at 338. To 13 establish standing, a plaintiff must demonstrate the “irreducible constitutional minimum” 14 of: (1) an injury in fact via “an invasion of a legally protected interest which is (a) concrete 15 and particularized, and (b) actual or imminent, not conjectural or hypothetical”; 16 (2) causation or traceability—that the injury is “fairly traceable to the challenged action of 17 the defendant”; and (3) redressability—that it is “likely, as opposed to merely speculative, 18 that the injury will be redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504 19 U.S. 555, 560–61 (1992) (internal citations and quotations omitted). “Each element of 20 standing ‘must be supported . . . with the manner and degree of evidence required at the 21 successive stage of the litigation.’” Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 22 2011) (quoting Lujan, 504 U.S. at 561). 23 A motion to dismiss for lack of standing is brought pursuant to Federal Rule of Civil 24 Procedure 12(b)(1). See Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 25 (9th Cir. 2010) (noting that “[b]ecause standing and ripeness pertain to federal courts’ 26 subject matter jurisdiction, they are properly raised in a Rule 12(b)(1) motion to dismiss”). 27 Such a motion can be facial or factual in nature. Pride v. Correa, 719 F.3d 1130, 1139 (9th 28 Cir. 2013); Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) 1 (explaining that pursuant to Rule 12(b)(1), a party may seek dismissal of an action for lack 2 of subject matter jurisdiction “either on the face of the pleadings or by presenting extrinsic 3 evidence”). “In a facial attack, the challenger asserts that the allegations contained in a 4 complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for 5 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In ruling on a Rule 12(b)(1) 6 motion attacking the complaint on its face, the Court accepts the allegations of the 7 complaint as true. See, e.g., Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). “By 8 contrast, in a factual attack, the challenger disputes the truth of the allegations that, by 9 themselves, would otherwise invoke federal jurisdiction.” Safe Air, 373 F.3d at 1039. 10 B. Rule 12(b)(6) 11 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the 12 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal 13 is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory. 14 Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). Alternatively, 15 a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead 16 essential facts under that theory. Robertson, 749 F.2d at 534. While a plaintiff need not 17 give “detailed factual allegations,” a plaintiff must plead sufficient facts that, if true, “raise 18 a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 19 545 (2007). 20 In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth 21 of all factual allegations and must construe them in the light most favorable to the 22 nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). 23 The court need not take legal conclusions as true merely because they are cast in the form 24 of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). 25 Similarly, “conclusory allegations of law and unwarranted inferences are not sufficient to 26 defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). 27 // 28 // 1 C. FOIA 2 “Congress designed FOIA ‘to pierce the veil of administrative secrecy and to open 3 agency action to the light of public scrutiny.’” Animal Legal Defense Fund v. US Dept. 4 Ag., 935 F.3d 858, 861 (9th Cir 2019)(citing Air Force v. Rose, 425 U.S. 352, 361 (1976). 5 FOIA provides for public release of government information though proactive disclosures 6 and when specifically requested. 5 U.S.C. § 552. The statute exempts nine categories of 7 information from release. § 552(b)(1)-(9). In an effort to further the statute’s goals, FOIA 8 bestows jurisdiction on a district court “to enjoin the agency from withholding agency 9 records and to order the production of any agency records improperly withheld from the 10 complainant.” 5 U.S.C. § 552(a)(4)(B). An agency must respond to a request within twenty 11 business days. 5 U.S.C. §§ 552(a)(6)(A)(I). If the agency fails to satisfy this timeline, the 12 individual making the request is deemed to have exhausted administrative remedies and 13 may file suit against the agency in federal court to release the records. 5 U.S.C. § 14 552(a)(6)(C)(i). 15 D. APA 16 “The APA authorizes suit by ‘[a] person suffering legal wrong because of agency 17 action, or adversely affected or aggrieved by agency action within the meaning of a relevant 18 statute.’” Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 61 (2004)(citing 5 19 U.S.C. § 702.) Under § 706(1), a claim may “proceed only where a plaintiff asserts that an 20 agency failed to take a discrete agency action that it is required to take.” Id. at 64. If a 21 plaintiff identifies a mandatory discrete agency action, the “plaintiff must then further 22 demonstrate that the agency unreasonably delayed or unlawfully withheld processing its 23 decision.” Asmai v. Johnson, 182 F.Supp.3d 1086, 1093 (E.D.Cal. 2016). Under § 24 706(2)(A), a plaintiff must identify a final agency action to invoke jurisdiction. Ukiah 25 Valley Med. Ctr. v. FTC, 911 F.2d 261, 266 (9th Cir. 1990). 26 IV. DISCUSSION 27 Defendant argues that Plaintiff’s claim for violations of the APA is barred because 28 it is “premised on [SBA’s] alleged violations of FOIA, and FOIA provides an adequate and 1 exclusive remedy for the requested relief.” Mot. ECF No. 9 at 1. To the extent Plaintiff’s 2 APA claim is premised on SBA conduct other than the response to his FOIA request, 3 Defendant contends that Plaintiff fails to identify a final agency action that is sufficient to 4 invoke the court’s jurisdiction under either § 706(1) or 706(2)(a). 5 “Where FOIA provides a plaintiff with an adequate remedy, a related APA claim 6 will be precluded.” Bedgood v. Mabus, 2015 WL 3647933. * 4 (S.D. Cal. June 8, 7 2015)(citing San Diego Navy Broadway Complex Coal. v. U.S. Dep't of the Navy, 2008 8 WL 110900, at *4 (S.D.Cal. Jan. 9, 2008) (granting summary judgment on APA claim that 9 sought a remedy that was adequately provided by FOIA). Here, the Complaint requests 10 relief from SBA’s “ongoing refusal to comply with” FOIA. ECF ¶ 1. Plaintiff seeks 11 “internal SBA communications, case notes, status logs, and records showing how the 12 agency processed – and ultimately delayed – his 8(a) application.” ECF No. 1 at 2. 13 Plaintiff’s first cause of action asserts violations of FOIA, arguing that SBA 14 unlawfully withheld and delayed production of the documents and “failed to make a 15 determination within statutory time limits” ECF No. 1 ¶¶ 30-36. Plaintiff’s second cause 16 of action asserts violations of the APA, arguing that SBA’s “refusal to act” and repeated 17 delays entitle him to relief under § 706(1) and § 706(2). As pled, the FOIA and APA claims 18 seek redress for the same conduct, specifically, SBA’s failure to comply with FOIA in a 19 timely manner. In his Opposition, Plaintiff contends that his “APA claim challenges a 20 separate injury: the SBA’s prolonged failure to issue a final eligibility determination on 21 Plaintiff’s completed 8(a) Business Development Program application” and that he is not 22 seeking disclosure of documents, but instead he “seeks adjudication of a pending 8(a) 23 application.” ECF No. 13. However, these are new assertions. Plaintiff does not state in 24 the Complaint that the relief he is seeking under his APA claim is for SBA to adjudicate 25 the application. Plaintiff cannot supply the necessary elements of a claim in his opposition. 26 Instead, they must be contained within the operative Complaint. Although the Court is 27 commanded to apply a more lenient lens to pro se pleadings, it “may not supply essential 28 elements of the claim that were not initially pled. Pena v. Gardner, 976 F.2d 469, 471 (9th 1 Cir. 1992); Ahmed v. Wormuth, No. 22-CV-4365, 2023 WL 2309776, * 3 (N.D.Cal. Feb. 2 28, 2023); Johnson v. Liberty Mut. Ins., No. 12-CV-01851, 2013 WL 415585, at *2 (N.D. 3 Cal. Jan. 31, 2013) (declining to consider new factual allegations in a pro se opposition to 4 a motion to dismiss). 5 Moreover, the relief Plaintiff seeks is for the Court to order SBA to produce all non- 6 exempt requested records and order SBA to provide a Vaughn index, which are remedies 7 available under a FOIA cause of action.3 ECF No. 1. Plaintiff does not allege a cause of 8 action under the APA seeking relief that is different from the relief he seeks in his FOIA 9 claim. Because FOIA provides an “adequate remedy” for the requested relief, Defendant’s 10 motion to dismiss Plaintiff’s second cause of action for violations of the APA is granted. 11 To the extent Plaintiff’s APA claim is based on SBA conduct other than its response 12 to his FOIA request, it must be dismissed because it does not identify the challenged 13 conduct, thus failing to establish the Court’s jurisdiction. “[A] claim under § 706(1) can 14 proceed only where a plaintiff asserts that an agency failed to take a discrete agency action 15 that it is required to take.” Norton v. 542 U.S. at 64 (2004). Delay of a discrete agency 16 action can also provide relief under the APA, and “courts generally apply the so-called 17 TRAC factors in deciding whether to order relief in claims of agency delay brought under 18 the APA.” Independence Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997) (citing 19 Telecom. Res. & Action Center (“TRAC”) v. F.C.C., 750 F.2d 70, 79–80 (D.C Cir. 1984).) 20 A court balances the following TRAC factors: 21 (1) the time agencies take to make decisions must be governed by a “rule of reason”[;] (2) where Congress has provided a timetable or other indication of 22 the speed with which it expects the agency to proceed in the enabling statute, 23 that statutory scheme may supply content for this rule of reason [;] (3) delays that might be reasonable in the sphere of economic regulation are less 24 tolerable when human health and welfare are at stake [;] (4) the court should 25 consider the effect of expediting delayed action on agency activities of a higher or competing priority[;] (5) the court should also take into account the 26 27 3 Plaintiff also asks for the Court to “declare SBA’s conduct arbitrary and capricious in violation of the 28 1 nature and extent of the interests prejudiced by the delay[;] and (6) the court need not “find any impropriety lurking behind agency lassitude in order to 2 hold that agency action is unreasonably delayed. 3 Independence Mining, 105 F.3d at 507 n. 7. The Complaint as currently pled does not 4 contain facts that show SBA failed to take any discrete action that it was legally required 5 to take and does not allege facts that satisfy the “TRAC” factors for unreasonable delay. 6 The Complaint merely alleges that SBA’s “refusal to act constitutes agency action 7 unlawfully withheld and unreasonably delayed under § 706(1)” (ECF ¶ 38) without further 8 explanation or support for the assertion. 9 Similarly, a plaintiff cannot advance a claim under § 706(2)(A) of the APA unless 10 he identifies a “final agency action.” Oregon Nat. Desert Ass’n v. U.S. Forest Service, 465 11 F.3d 977, (9th Cir. 2006) (“To obtain judicial review under the APA, [plaintiff] must 12 challenge a final agency action.”) “For an agency action to be final, the action must (1) 13 ‘mark the consummation of the agency's decisionmaking process’ and (2) ‘be one by which 14 rights or obligations have been determined, or from which legal consequences will flow.’ 15 ” Id., citing Bennett v. Spear, 520 U.S. 154 178, (1997). Here, the Complaint does not 16 identify a final agency action that satisfies the test under the APA. In sum, Plaintiff has not 17 described (1) any agency action that was unlawfully withheld or unreasonably delayed 18 under §706(1) or (2) any final agency action that was arbitrary, capricious, an abuse of 19 discretion, or otherwise contrary to law under § 706(2). 20 For these reasons, Plaintiff’s APA allegations “are insufficient on their face to invoke 21 federal jurisdiction.” Safe Air for Everyone, 373 F.3d at 1039. In addition, Plaintiff fails to 22 state a claim upon which relief can be granted under the APA. Robertson, 749 F.2d at 534. 23 Plaintiff’s claim for relief under the APA is dismissed without prejudice. See Swartz v. 24 KPMG LLP, 476 F.3d 756, 761 (9th Cir. 2007) (“Assuming a substantive or jurisdictional 25 defect in the pleadings, dismissal without leave to amend is proper only if it is clear, upon 26 de novo review, that the complaint could not be saved by any amendment.”) 27 // 28 l Vv. CONCLUSION 2 In light of the above, SBA’s Motion to Dismiss under Rule 12(b)(1) and under Rule 3 || 12(b)(6) is GRANTED. Should Plaintiff wish to file an amended complaint curing the 4 || deficiencies noted in this Order, he must do so no later than August 21, 2026. SBA may 5 respond within the time prescribed by Federal Rule of Civil Procedure 15. 6 IT IS SO ORDERED. 7 ||Dated: July 28, 2026 8 Degen Oh feo 10 11 Honorable Benjamin J. Cheeks United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28