United States For Use of Garcia v. McAninch, No. 76C1600

• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
• Writing for the Court: PLATT
• Citation: 435 F. Supp. 240
• Parties: UNITED STATES of America for the Use of Adelaida GARCIA, Plaintiff, v. Vernon McANINCH, Consul General of the United States at Santo Domingo, Dominican Republic, et al., Defendants. UNITED STATES of America for the Use of Jesus ORTIZ, Plaintiff, v. Paul M. MILLER, Consul of the United States at Santo Domingo, Dominican Republic, et al., Defendants.
• Decision Date: 29 July 1977
• Docket Number: 77C166.,No. 76C1600

435 F. Supp. 240

UNITED STATES of America for the Use of Adelaida GARCIA, Plaintiff,
v.
Vernon McANINCH, Consul General of the United States at Santo Domingo, Dominican Republic, et al., Defendants.
UNITED STATES of America for the Use of Jesus ORTIZ, Plaintiff,
v.
Paul M. MILLER, Consul of the United States at Santo Domingo, Dominican Republic, et al., Defendants.

Nos. 76C1600, 77C166.

United States District Court, E. D. New York.

July 29, 1977.

435 F. Supp. 241

Antonio C. Martinez, New York City, for plaintiffs.

David G. Trager, U. S. Atty., E. D. N. Y., by Elaine C. Buck, Asst. U. S. Atty., Brooklyn, N. Y., for defendants.

PLATT, District Judge.

The plaintiffs in the above actions seek damages under 22 U.S.C. § 1199 for harm they allegedly suffered because of the defendants' failure to issue visas to a fiance and a spouse. The defendants move to dismiss on the grounds that this Court lacks

435 F. Supp. 242

jurisdiction over the subject matter, the plaintiffs lack standing to sue, the plaintiffs have failed to join an indispensable party, there is no jurisdiction over the defendants, the actions are barred by sovereign immunity and venue is improper in the Eastern District of New York

FACTS

In May of 1976 Adelaida Garcia, a United States citizen and a resident of this district, filed a petition for a non-immigrant visa for her alleged fiance, Eduardo Hernandez, a citizen and resident of the Dominican Republic, so that the two could be married and live in the United States.

On July 12, 1976, Mr. Hernandez applied at the United States Embassy in Santo Domingo for issuance of the non-immigrant visa. For various reasons the officials in Santo Domingo questioned Mr. Hernandez' intention to enter into a valid marriage and withheld the visa petition.

In September of 1976, Adelaida Garcia brought this lawsuit against Vernon McAninch, who was Consul General at the American Embassy in Santo Domingo until August 26, 1976, Jose Heredia, a Dominican citizen employed by the Embassy as an investigator, and a "John Doe" identified as a Vice-Consul at the Embassy in Santo Domingo.

In July of 1975 Leomares Ortiz applied at the American Embassy in Santo Domingo for an immigrant visa to join Jesus Ortiz, whom she had married in 1973. Jesus Ortiz says he is a permanent resident of the United States and resides in this district.

On April 2, 1976, the Embassy denied Mr. Ortiz a visa, in part, because her marriage appeared to be "one of convenience for immigration purposes."

Jesus Ortiz brought this action against Paul Miller, who was Consul at the Embassy in Santo Domingo, Jose Heredia, and a "John Doe".

In both actions the plaintiffs allege that the defendants have acted unlawfully and arbitrarily in denying the visas and that such conduct, in effect, is "wilful malfeasance or abuse of power."

I

Before discussing the defendants arguments, we note first that the plaintiffs are not challenging the denial of the visas. Judicial review of the issuing of visas is generally not permitted on the theory that such decisions are exclusively within the province of the legislative and executive branches. Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972); Rivera de Gomez v. Kissinger, 534 F.2d 518 (2d Cir. 1976); Burrafato v. United States Department of State, 523 F.2d 554 (2d Cir. 1975), cert. denied, 424 U.S. 910, 96 S.Ct. 1105, 47 L.Ed.2d 313 (1976); Pena v. Kissinger, 409 F.Supp. 1182 (S.D.N.Y.1976).

Rather the plaintiffs bring suit here under 22 U.S.C. § 1199, as amended, which reads in relevant part as follows:

"Whenever any consular officer wilfully neglects or omits to perform seasonably any duty imposed upon him by law, or by an order or instruction made or given in pursuance of law or is guilty of any wilful malfeasance or abuse of power, or of any corrupt conduct in his office, he shall be liable to all persons injured by any such neglect, or omission, malfeasance, abuse, or corrupt conduct, for all damages occasioned thereby; and for all such damages, he shall be responsible thereon to the full amount thereof to be sued in the name of the United States for the use of the persons injured."

Under that section, the action is for damages only, not for review of any decision to deny visas. The damages alleged here are "grievous emotional harm, anxiety, loss of consortium, loss of economic benefits of a marital relationship, loss of ability to plan for the future, inordinate delays in obtaining tax benefits, unforeseen travel and other expenses." Both plaintiffs demand damages of $15,000.00 and exemplary and punitive damages of $25,000.00.

Further, any claim under § 1199 must be brought "in the name of the United States for the use of the person injured." Both

435 F. Supp. 243

plaintiffs have brought their actions in this manner

II

The defendants' first argument in favor of dismissal is that 22 U.S.C. § 1199 was not intended to circumvent the rule expressed above that the courts cannot review decisions by immigration officials. The defendants cite a number of cases and the Congressional history of § 1199 to support their position, but their argument (as much as we may sympathize with it and...