Merida Delgado v. Gonzales, No. 04-6309.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtHenry
Citation428 F.3d 916
PartiesJuan Carlos MERIDA DELGADO, Plaintiff-Appellant, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> in his official capacity as Attorney General for the United States of America; Robert Mueller, in his official capacity as Director of the Federal Bureau of Investigation, Defendants-Appellees.
Decision Date02 November 2005
Docket NumberNo. 04-6309.

Page 916

428 F.3d 916
Juan Carlos MERIDA DELGADO, Plaintiff-Appellant,
v.
Alberto R. GONZALES,* in his official capacity as Attorney General for the United States of America; Robert Mueller, in his official capacity as Director of the Federal Bureau of Investigation, Defendants-Appellees.
No. 04-6309.
United States Court of Appeals, Tenth Circuit.
November 2, 2005.

Page 917

Submitted on the briefs: David J. Batton, for Plaintiff-Appellant.

Peter D. Keisler, Assistant Attorney General, Douglas N. Letter, Peter J. Phipps, United States Department of Justice,

Page 918

Civil Division, Washington, DC, for Defendants-Appellees.

Before HENRY, ANDERSON, and TYMKOVICH, Circuit Judges.

HENRY, Circuit Judge.


Plaintiff Juan Carlos Merida Delgado appeals the district court's order dismissing his case for lack of federal subject-matter jurisdiction and denying his request for leave to amend the complaint. We affirm.**

I. Background

Mr. Delgado is a citizen of Panama. Beginning in 1996, he received flight training at a federally regulated flight-training school in Norman, Oklahoma. While there, he encountered Zacarias Moussaoui, who was later indicted on several charges of conspiracy related to the September 11, 2001 terrorist attacks on the United States. See, e.g., United States v. Moussaoui, 382 F.3d 453, 457 (4th Cir.2004), cert. denied, ___ U.S. ___, 125 S.Ct. 1670, 161 L.Ed.2d 496 (2005). Mr. Delgado was denied permission to receive flight training in July 2003.1 A second request, submitted in November 2003, was also denied. The requests were denied pursuant to section 113 of the Aviation and Transportation Security Act of 2001 (the Act).2 The Act regulated flight training on certain aircraft, and permitted providing training to an alien only if:

(1) [the school] has first notified the Attorney General that the individual has requested such training and furnished the Attorney General with that individual's identification in such form as the Attorney General may require; and

(2) the Attorney General has not directed, within 45 days after being notified under paragraph (1), [the school] not to provide the requested training because the Attorney General has determined that the individual presents a risk to aviation or national security.

Pub.L. No. 107-71, § 113(a), 115 Stat. 597, 622.

Mr. Delgado filed suit challenging the Attorney General's determination that he was not authorized to receive flight training. Defendants moved to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of federal subject-matter jurisdiction. The district court granted the motion, denied Mr. Delgado's motion to amend his complaint, and entered judgment in defendants' favor.

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II. Dismissal for Lack of Subject-matter Jurisdiction-Sovereign Immunity

We review de novo the district court's dismissal for lack of subject-matter jurisdiction. Marcus v. Kan. Dep't of Revenue, 170 F.3d 1305, 1309 (10th Cir.1999). "Because the jurisdiction of federal courts is limited, there is a presumption against our jurisdiction, and the party invoking federal jurisdiction bears the burden of proof." Id. (quotation omitted). In attempting to meet this burden, Mr. Delgado contends that federal subject-matter jurisdiction lies pursuant to (1) U.S. Const. art. III, § 2, cl. 1; (2) the Fifth Amendment; (3) 28 U.S.C. § 1331; (4) the Administrative Procedures Act, 5 U.S.C. § 701(a)(1)(APA); and (5) various international treaties.3 Defendants respond that none of those authorities effects a waiver of sovereign immunity.

"It is elementary that the United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (quotation omitted). In general, federal agencies and officers acting in their official capacities are also shielded by sovereign immunity. Wyoming v. United States, 279 F.3d 1214, 1225 (10th Cir.2002). "A waiver of sovereign immunity cannot be implied but must be unequivocally expressed." Mitchell, 445 U.S. at 538, 100 S.Ct. 1349 (quotation omitted).

We first reject Mr. Delgado's claims that the Constitution and 28 U.S.C. § 1331 waive sovereign immunity. The statute conferring general federal question jurisdiction, 28 U.S.C. § 1331, "grants the district courts original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States, but does not waive the government's sovereign immunity. Consequently, district court jurisdiction cannot be based on § 1331 unless some other statute waives sovereign immunity." Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956, 960-61 (10th Cir.2004) (quotations and citation omitted).

Mr. Delgado next contends that the APA provides a waiver of sovereign immunity. The APA "contains a limited waiver of the United States' sovereign immunity." City of Albuquerque v. United States Dep't of Interior, 379 F.3d 901, 907 (10th Cir.2004) (quotation omitted) (referring to 5 U.S.C. § 702). "But before any review at all may be had, a party must first clear the hurdle of [5 U.S.C.] § 701(a)." Heckler v. Chaney, 470 U.S. 821, 828, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985).

Mr. Delgado relies on § 701(a)(1), which provides for review of agency action "except to the extent that statutes preclude judicial review." According to his argument, no statute, including the Tucker Act, 28 U.S.C. §§ 1346 & 1491, precludes judicial review, so § 701(a)(1) operates to confer jurisdiction.4 Mr. Delgado's argument ignores § 701(a)(2), which makes review of agency action unavailable if "agency action is committed to agency discretion by law." Accordingly, we examine whether defendants'

Page 920

determination that Mr. Delgado would not receive flight training was committed to agency discretion by law.

In directing a flight school not to provide the requested flight training, the Attorney General was charged by law with assessing whether an alien "presents a risk to aviation or national security." Under § 701(a)(2), review of an agency decision...

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189 practice notes
  • Chemical facility anti-terrorism standards,
    • United States
    • Federal Register December 28, 2006
    • December 28, 2006
    ...Baltimore Gas & Elec. Co. v. FERC, 252 F.3d 456, 459 (D.C. Cir. 2001); Haig v. Agee, 453 U.S. 280 (1981); Merida Delgado v. Gonzales, 428 F.3d 916 (10th Cir. 2005) (finding that the Attorney General's national security determination was not reviewable under the APA, where the authorizin......
  • Part II
    • United States
    • Federal Register December 28, 2006
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    ...Baltimore Gas & Elec. Co. v. FERC, 252 F.3d 456, 459 (D.C. Cir. 2001); Haig v. Agee, 453 U.S. 280 (1981); Merida Delgado v. Gonzales, 428 F.3d 916 (10th Cir. 2005) (finding that the Attorney General's national security determination was not reviewable under the APA, where the authorizin......
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    ...Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). So "there is a presumption against our jurisdiction." Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005) (quotation marks omitted). The presumption against jurisdiction is manifested in "the deeply felt and traditional reluctance ......
  • Owens v. State, Case No. 11-4007-EFM
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • May 10, 2011
    ...2002). 10. Id. at 798. 11. Lindstrom v. United States, 510 F.3d 1191, 1193 (10th Cir. 2007). 12. See, e.g., Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005). 13.Ashcroft v. Iqbal, ---U.S.---, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (......
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187 cases
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    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 8, 2022
    ...Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). So "there is a presumption against our jurisdiction." Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005) (quotation marks omitted). The presumption against jurisdiction is manifested in "the deeply felt and traditional reluctance ......
  • Owens v. State, Case No. 11-4007-EFM
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • May 10, 2011
    ...2002). 10. Id. at 798. 11. Lindstrom v. United States, 510 F.3d 1191, 1193 (10th Cir. 2007). 12. See, e.g., Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005). 13.Ashcroft v. Iqbal, ---U.S.---, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (......
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    ...filed a timely notice of appeal.1 II We review de novo a district court's dismissal for lack of standing. Merida Delgado v. Gonzales , 428 F.3d 916, 919 (10th Cir. 2005). To establish Article III standing, a plaintiff must show: (1) that he has "suffered an injury in fact"; (2) that the inj......
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    ..."Because the jurisdiction of federal courts is limited, there is a presumption against our jurisdiction." Merida Delgado v. Gonzales , 428 F.3d 916, 919 (10th Cir. 2005) (quotation marks omitted); see Kokkonen , 511 U.S. at 377, 114 S.Ct. 1673. This presumption is manifested in "the deeply ......
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