Roberts v. Napolitano

• Decision Date: 20 June 2011
• Docket Number: Civil Action No. 10–0239 (BAH).
• Citation: 792 F.Supp.2d 67
• Parties: Marcus Wayne ROBERTS, pro se, Plaintiff,v.Janet NAPOLITANO, Secretary, U.S. Department of Homeland Security, et al., Defendants.
• Court: U.S. District Court — District of Columbia

792 F.Supp.2d 67

Marcus Wayne ROBERTS, pro se, Plaintiff,

v.Janet NAPOLITANO, Secretary, U.S. Department of Homeland Security, et al., Defendants.

Civil Action No. 10–0239 (BAH).

United States District Court, District of Columbia.

June 20, 2011.

Marcus Wayne Roberts, El Paso, TX, pro se.Michelle Lo, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

In this case, plaintiff Marcus Wayne Roberts seeks a writ of mandamus to compel the U.S. Department of Homeland Security, and its Secretary, Janet Napolitano, to approve the plaintiff's application to participate in the U.S. Customs and Border Protection's Global Entry program, a program that provides expedited clearance through U.S. customs to certain pre-approved, low-risk travelers. The plaintiff's application for the program was denied due to a pending misdemeanor charge, and the plaintiff asserts that the denial of his application violates his civil rights. The defendants have moved to dismiss the Complaint for failure to state a claim, or in the alternative, for summary judgment. For the reasons discussed below, the defendants' motion to dismiss is granted.

I. BACKGROUND

Plaintiff Marcus Wayne Roberts, a citizen of the United States and the self-described “Ambassador (or former Ambassador) of the Federation of Saint Christopher and Nevis,” filed this case pro se on February 17, 2010. Compl. ¶ 1. On January 17, 2010, the plaintiff applied to participate in Global Entry, a pilot program initiated by the U.S. Customs and Border Protection (hereinafter “CBP”) to expedite customs clearance for pre-approved, low-risk travelers arriving in the United States. Id.; Establishment of Global Entry Program, 74 Fed.Reg. 59934 (Nov. 19, 2009) (to be codified at 8 C.F.R. pt. 235). The program allows frequent “trusted travelers” to be processed for customs, immigration, and agriculture purposes at automated kiosks. Id.

The Global Entry application process involves several steps. First, applicants complete an online form and submit a $100 non-refundable fee. Id. at 59935. Second, CBP officers at a CBP Vetting Center review the applicant's information and conduct a background check in government criminal and antiterrorism databases, as well as foreign government databases. Id. at 59934. Applicants who meet the eligibility criteria receive an online message inviting them to schedule a personal interview at an enrollment center. Id. Final approval in the Global Entry program is contingent on the results of the vetting process and the interview. Id. at 59935.

At the required interview, CBP officers perform several procedures, including: verification of the applicant's identity and proof of citizenship or permanent resident status; confirmation of the validity of travel documents; confirmation that the candidate meets eligibility requirements for membership; electronic fingerprint scanning; and various background checks, including a search for criminal records in law enforcement databases. Id. at 59934. Applicants who do not complete the application process may be denied participation in the program.

Under the proposed CBP guidelines,¹ applicants also may fail to qualify for participation in the Global Entry pilot program if they: provide false or incomplete information on the application; have pending criminal charges or outstanding warrants; have been arrested for, or convicted of, any criminal offense; have previously violated any customs, immigration, or agriculture regulation, procedure, or law in any country; are the subject of an investigation by any Federal, State, or local law enforcement agency; fail to satisfy CBP that they are low-risk travelers or meet other program requirements; or if the applicant has been identified on a government watch list. See id. at 59933.

On February 11, 2010, the plaintiff received a letter from Global Entry informing him that his application had been processed and inviting him to schedule an interview to complete the enrollment process. Compl., Ex. C. The plaintiff scheduled his interview for the following day, February 12, 2010, at the El Paso, Texas Enrollment Center. Compl. ¶ 1. During the interview, the plaintiff was fingerprinted and his fingerprints were run through various law enforcement databases. Defs.' Mem. of P. & A. in Supp. Mot. Dismiss, ECF No. 4, at 6. The search revealed that on October 27, 2009, the plaintiff was arrested in Hudspeth County, Texas, for the “Class A” misdemeanor “Terroristic Threat.” Id. at 6. The interviewing officer also noted that the plaintiff's behavior was “confused,” that he claimed to be an ambassador who needed to travel “somewhere,” and that “Hilary [sic] Clinton had almost taken his Passport Card away.” AR000013. When the plaintiff was told that his application needed to be sent up for review due to his pending misdemeanor charge, the plaintiff “became angry and stood up stating he was going to sue the head of Homeland Security ... and stomped out of the office.” Id. The plaintiff concedes in his Complaint that he declined to answer any questions about his prior arrest, stating that “Roberts takes fifth amended [sic] to questions about the arrest.” Compl. ¶ 1.

Five days after he threatened to sue, on February 17, 2010, the plaintiff filed this case against Janet Napolitano, Secretary of the U.S. Department of Homeland Security, and the U.S. Department of Homeland Security. On February 22, 2010, after the plaintiff had already initiated this case, the plaintiff was formally informed that his application for Global Entry was denied because he had been arrested for a criminal offense and because he did not meet the program eligibility requirements. AR000021. The plaintiff alleges that the denial of his Global Entry application was an “arbitrary and capricious violation of his civil rights because he represents or has represented black people as a white man” and seeks a writ of mandamus ordering Secretary Napolitano and the U.S. Department of Homeland Security to grant him Global Entry privileges. Compl. ¶ 1. The plaintiff also requests “unspecified” punitive and compensatory damages, including reimbursement of the application filing fee. Id. at ¶ 7.

On May 3, 2010, the defendants filed a motion to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted, or in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. Defs.' Mem. of P. & A. in Supp. Mot. Dismiss, ECF No. 4, at 1. For the reasons set forth below, the Court grants the defendants' motion to dismiss.²

II. STANDARD OF REVIEW

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff need only plead “enough facts to state a claim to relief that is plausible on its face” and to “nudge[ ] [his or her] claims across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); FED. R. CIV. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted) (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Instead, the complaint must plead facts that are more than “merely consistent with” a defendant's liability; “the plaintiff [must plead] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949, 1940.

Complaints filed by pro se plaintiffs “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). Even a pro se complainant, however, must plead “factual matter” that permits the court to infer “more than the mere possibility of misconduct.” Atherton v. D.C. Office of Mayor, 567 F.3d 672, 682 (D.C.Cir.2009) (citing Iqbal, 129 S.Ct. at 1950).

III. DISCUSSION

The plaintiff has petitioned for a writ of mandamus to compel the defendants to “order Global Entry Privileges [sic].” ³ Compl. ¶ 1. The plaintiff argues that the Court maintains jurisdiction to hear the plaintiff's legal challenge and to issue a writ of mandamus under the Administrative Procedure Act, 5 U.S.C. § 501 et seq.; the Mandamus Act, 28 U.S.C. § 1361; the Declaratory Judgment Act, 28 U.S.C. § 2201; the Equal Access to Justice Act, 28 U.S.C. § 2412; the Fifth and Fourteenth Amendments of the U.S. Constitution; as well as Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.Id. ¶ 5. The plaintiff, however, is not entitled to relief under any of these statutes.⁴

A. Claim for Relief under the Administrative Procedure Act

The plaintiff alleges he is entitled to a writ of mandamus because the defendants' denial of his Global Entry application was “arbitrary and capricious [in] violation of his civil rights” under the Administrative Procedure Act (hereinafter “APA”). Compl. ¶¶ 1, 5. The Court, however, is precluded from reviewing the defendants' denial of plaintiff's Global Entry application under the APA because eligibility for the program is committed solely to the CBP's discretion by law.

Although there is “a strong presumption that agency action is reviewable” under the APA, courts are precluded from reviewing agency actions when the act “is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2); Secy. of Labor v. Twentymile Coal Co., 456 F.3d 151, 156 (D.C.Cir.2006) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). This situation arises “in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ ” Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (quoting Overton Park, 401...