Gomez v. Nielsen
| Decision Date | 22 March 2018 |
| Docket Number | Civil Action No. 17–0217 (CKK) |
| Parties | Isaac D. Narvaez GOMEZ, Plaintiff, v. Kirstjen NIELSEN et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Isaac D. Narvaez Gomez, Walterboro, SC, pro se.
Wynne Patrick Kelly, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.
Plaintiff is a native of Venezuela who is appearing pro se . He seeks a writ of mandamus to compel the federal government to adjudicate his "Form I–589, Application for Asylum and for Withholding of Removal." Am. Pet. for a Writ of Mandamus and Compl. for Declaratory Judgment ("Am. Compl.") at 3 [Dkt. # 12]. Plaintiff further states that he is bringing "claims in relation with the claims of asylum," and he has invoked the Administrative Procedure Act ("APA"), the Immigration and Nationality Act ("INA"), and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Id. Plaintiff alleges also that U.S. Customs and Immigration Services ("USCIS") has unlawfully withheld records responsive to his Freedom of Information Act ("FOIA") request submitted in February 2017. Id. at 12. In addition to suing high-level officials of the U.S. government, Plaintiff has sued the Bolivarian Republic of Venezuela under the Alien Tort Claims Act, 28 U.S.C. § 1350, and has filed a Motion for Issuance of Request for Service Abroad, which the Court will deny.
On April 5, 2017, the federal defendants moved under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure to dismiss plaintiff's claims "seeking equitable or monetary relief related to his asylum application" and "any claims against [President Trump] in his official or individual capacity." Fed. Defs.' Partial Mot. to Dismiss at 1–2 [Dkt. # 23]. Defendants noted that the instant motion pertains to "all claims in [the] operative complaint ... except for Plaintiff's claim under the [FOIA]." Id. n.1. Plaintiff filed an opposition on April 7, 2017 [Dkt. # 24], and a motion to file a supplemental opposition on September 15, 2017 [Dkt. # 38], which the Court will grant over defendants' objection [Dkt. # 39].
Meanwhile, on March 28, 2017, plaintiff filed an Emergency Motion for Leave to File Second Amended Complaint and Joinder of Parties and Claims [Dkt. # 21], which prompted the Court to delay consideration of the federal defendants' motion to dismiss. See Apr. 7, 2017 Order [Dkt. # 25]. Plaintiff has since withdrawn that motion. See Not. of Withdrawal of Pl.'s Emergency Mot. for Leave to File Second Am. Compl. and Joinder of Parties and Claims [Dkt. # 36]. Therefore, the federal defendants' fully briefed motion to dismiss is ripe for review. For the reasons explained below, the Court will grant the federal defendants' motion and will dismiss all but plaintiff's FOIA claim against USCIS.
A party may move under Rule 12(b)(1) to dismiss for lack of subject matter jurisdiction. To survive such a motion, plaintiff bears the burden of establishing that the Court has subject matter jurisdiction over its claims. Moms Against Mercury v. FDA , 483 F.3d 824, 828 (D.C. Cir. 2007). In determining whether there is jurisdiction, the Court may "consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coal. for Underground Expansion v. Mineta , 333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation marks omitted); see also 5B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1350 (3d ed. 2017) (). "Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1)," the factual allegations in the complaint "will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Wright v. Foreign Serv. Grievance Bd. , 503 F.Supp.2d 163, 170 (D.D.C. 2007) (internal quotation marks omitted).
A party may move under Rule 12(b)(6) to dismiss a complaint on the grounds that it "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, "state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570, 127 S.Ct. 1955. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. In considering such a motion, the Court accepts as true the well-pleaded allegations in the operative complaint, but it does "not accept as true ... the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged." Ralls Corp. v. Comm. on Foreign Inv. in U.S. , 758 F.3d 296, 315 (D.C. Cir. 2014).
Pro se pleadings must be held to "less stringent standards than formal pleadings drafted by lawyers," Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam), but still they must satisfy the minimal requirement of alleging sufficient "factual matter" to permit a court "to infer more than the mere possibility of misconduct[.]" Brown v. Whole Foods Mkt. Grp., Inc. , 789 F.3d 146, 150 (D.C. Cir. 2015) (quoting Atherton v. District of Columbia Off. of the Mayor , 567 F.3d 672, 681–82 (D.C. Cir. 2009) ) (internal quotation marks omitted). In addition, when considering a motion to dismiss, the court should read the pro se filings collectively. Therefore, the Court will consider not only the facts alleged in the amended complaint, but also any facts alleged in plaintiff's opposition and supplemental opposition. See Brown , 789 F.3d at 152 () (quoting Richardson v. United States , 193 F.3d 545, 548 (D.C. Cir. 1999) ).
Defendants contend that plaintiff is not entitled to a writ of mandamus or to any other "equitable or monetary relief related to his asylum application[.]" Defs.' Mot. at 1. The Court agrees.
"Mandamus is a ‘drastic’ remedy, ‘to be invoked only in extraordinary circumstances.’ " Fornaro v. James , 416 F.3d 63, 69 (D.C. Cir. 2005) (quoting Allied Chem. Corp. v. Daiflon, Inc. , 449 U.S. 33, 34, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) ). The Court of Appeals has instructed as follows:
To show entitlement to mandamus, plaintiffs must demonstrate (1) a clear and indisputable right to relief, (2) that the government agency or official is violating a clear duty to act, and (3) that no adequate alternative remedy exists. These requirements are jurisdictional; unless all are met, a court must dismiss the case for lack of jurisdiction. Even when the legal requirements for mandamus jurisdiction have been satisfied, however, a court may grant relief only when it finds compelling equitable grounds. The party seeking mandamus has the burden of showing that its right to issuance of the writ is clear and indisputable.
Am. Hosp. Ass'n v. Burwell , 812 F.3d 183, 189 (D.C. Cir. 2016) (citations and internal quotation marks omitted).
On April 30, 2017, plaintiff filed a notice indicating that he was scheduled for an asylum interview on May 10, 2017, see Not. to the Court [Dkt. # 30], which did in fact occur, see Pl.'s Not. to the Court [Dkt. # 33]. Therefore, plaintiff's mandamus claim and his related APA claim predicated on the alleged delay in considering his asylum application are now moot. See Pl.'s Opp'n to Fed. Defs.' Partial Mot. to Dismiss at 5 (); cf. Kwok Sze v. Johnson , 172 F.Supp.3d 112, 119 (D.D.C. 2016) (). The Court would lack jurisdiction over plaintiff's mandamus claim in any event because (1) plaintiff has an adequate remedy under the INA, see 8 U.S.C. § 1158, (2)"asylum is a form of discretionary relief" accorded to the Attorney General, Guevara Flores v. INS , 786 F.2d 1242, 1248 (5th Cir. 1986), and (3) the Court may "award mandamus relief only to compel the performance of a ‘clear nondiscretionary duty.’ " Kwok Sze , 172 F.Supp.3d at 118 (quoting Heckler v. Ringer , 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) ). Accordingly, the Court grants defendants' motion to dismiss the equitable claims arising from the asylum application under Rule 12(b)(1).
Plaintiff purports to sue President Trump in his individual capacity. See Am. Compl. ¶¶ 36–37. He seeks "punitive monetary damages ... in the amount of $500,000,000.00." Id. at 22 ¶ 7. Bivens recognizes "an implied right of action for damages against federal officers alleged to have...
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