Gomez v. Kelly

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Isaac D. Narvaez Gomez, :
:
Plaintiff, :
v. : Civil Action No. 17-0217 (CKK)
:
Kirstjen Nielsen 1 et al., :
:
Defendants. :

MEMORANDUM OPINION

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 (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.

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Plaintiff sued John F. Kelly in his official capacity as United States Secretary of Homeland
Security. Am. Pet. ¶ 5. Secretary Kirstjen Nielsen is substituted pursuant to Fed. R. Civ. P. 25(d).

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 I. PROCEDURAL BACKGROUND

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.

II. LEGAL STANDARDS

A. Motions to Dismiss

1. Federal Rule 12(b)(1)

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.

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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) (noting the “wide array of cases from the four corners of the federal judicial system

involving the district court’s broad discretion to consider relevant and competent evidence on a

motion to dismiss for lack of subject matter jurisdiction to resolve factual issues”). “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).

2. Federal Rule 12(b)(6)

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 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 557 (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. “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. In considering such a motion, the Court accepts as true the

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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).

B. Pro Se Pleadings

Pro se pleadings must be held to “less stringent standards than formal pleadings drafted

by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (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 (“a district court

errs in failing to consider a pro se litigant’s complaint ‘in light of’ all filings, including filings

responsive to a motion to dismiss”) (quoting Richardson v. United States, 193 F.3d 545, 548

(D.C. Cir. 1999)).

III. ANALYSIS

A. Defendants’ Motion to Dismiss

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.

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 1. Equitable Relief

“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 (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 (asserting that the APA “empowers courts to

‘compel agency action unlawfully withheld or unreasonably delayed’ ” and listing six-factor test

for determining “whether agency action has been unreasonably delayed”); cf. Kwok Sze v.

Johnson, 172 F. Supp. 3d 112, 119 (D.D.C. 2016) (noting that “courts have frequently held that

the only ministerial duty owed by USCIS under Subsection (a)(6) [of the INA] is to respond to

the renunciant’s request”). 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

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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 (1984)). Accordingly, the Court grants

defendants’ motion to dismiss the equitable claims arising from the asylum application under

Rule 12(b)(1).

2. Claim Against President Trump

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 violated [certain] constitutional rights.” Correctional Services Corp. v. Malesko, 534 U.S.

61, 66 (2001). But a Bivens lawsuit is against the official in his or her individual capacity.

Consequently, “a plaintiff must plead [and be able to prove] that each Government-official

defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal,

556 U.S. at 676; see Simpkins v. District of Columbia Gov't, 108 F.3d 366, 369 (D.C. Cir. 1997)

(a Bivens claim requires a showing “that the defendant federal official was personally involved in

the illegal conduct”); Cameron v. Thornburgh, 983 F.2d 253, 257-58 (D.C. Cir. 1993)

(dismissing claims against high-level policymakers “[i]n the absence of any allegations

specifying [their] involvement”).

Plaintiff has stated no claim against President Trump in his personal capacity, as he

alleges no plausible facts showing that Trump was personally involved in the asylum

proceedings. Accordingly, the Court grants defendants’ motion to dismiss the personal-capacity

claim against President Trump under Rule 12(b)(6).

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 3. Official-Capacity Claims

Plaintiff also sues President Trump and the remaining current or former federal officials

in their official capacity, see Am. Compl. ¶¶ 5-14, 35, which “is, in all respects other than name,

to be treated as a suit against the [United States].” Kentucky v. Graham, 473 U.S. 159, 166

(1985). As a result, the official-capacity claims for equitable relief are dismissed for the reasons

stated above and the official-capacity claims for monetary relief are dismissed for the reasons

stated below.

4. Monetary Relief

In his Prayer for Relief, plaintiff seeks “monetary relief in the amount of $35,001,337.00

under the Tucker Act in conjunction with APA[.]” Am. Compl. at 21. By its terms, the APA

waives the United States’ immunity for certain actions “seeking relief other than money

damages.” 5 U.S.C. § 702(a). The waiver simply does not apply to plaintiff’s claim for money

damages. See McKoy v. Spencer, 271 F. Supp. 3d 25, 34 (D.D.C. 2017) (“Because these

remedies constitute money damages, the Court cannot entertain Plaintiffs’ request for them under

the APA’s waiver of sovereign immunity.”).

Plaintiff has not identified any other legal basis for the Tucker Act claim, but this Court

would lack jurisdiction nonetheless. The Tucker Act does not confer jurisdiction in the district

court over a claim exceeding $10,000. For the amount sought in this case, “[t]he Tucker Act

vests exclusive jurisdiction in the United States Court of Federal Claims,” and such claims are

“against the United States for ‘liquidated or unliquidated damages in cases not sounding in tort.’”

Smalls v. United States, 471 F.3d 186, 189 (D.C. Cir. 2006) (quoting 28 U.S.C. § 1491)); see

Kidwell v. Dep’t of Army, Bd. for Correction of Military Records, 56 F.3d 279, 284 (D.C. Cir.

1995) (“[A] claim is subject to the Tucker Act and its jurisdictional consequences if, in whole or

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in part, it explicitly or ‘in essence’ seeks more than $10,000 in monetary relief from the federal

government.”) (citations omitted)). Accordingly, plaintiff’s purported Tucker Act claim is

dismissed under Rule 12(b)(1).

B. Plaintiff’s Motion for Service upon Venezuela

“‘Federal courts are courts of limited jurisdiction’ and can adjudicate only those cases

entrusted to them by the Constitution or an Act of Congress . . . . The Court begins with the

presumption that it does not have subject matter jurisdiction over a case,” and “a plaintiff bears

the burden of establishing that the Court has subject matter jurisdiction over its claim.” McCall

v. Yang, 179 F. Supp. 3d 92, 94 (D.D.C. 2016) (quoting Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 377 (1994) (citing Moms Against Mercury, 483 F.3d at 828). Particularly “in

a suit involving a foreign state, a plaintiff must satisfy subject matter jurisdiction under the FSIA

before the court can reach claims under the Alien Tort Claims Act,” Soudavar v. Islamic

Republic of Iran, 67 Fed. App’x 618, 619-20 (D.C. Cir. 2003) (per curiam), and “[c]laims against

foreign sovereigns that do not fall within the ambit of an FSIA exception are barred,” Simon v.

Republic of Hungary, 812 F. 3d 127, 141 (D.C. Cir. 2016) (citation and internal quotation marks

omitted). FSIA immunity, like the United States’ immunity, extends to the foreign state, its

instrumentalities and its employees sued in their official capacity. Jungquist v. Sheikh Sultan Bin

Khalifa Al Nahyan, 115 F.3d 1020, 1027 (D.C. Cir. 1997) (citing 28 U.S.C. § 1603(a)).

Before considering plaintiff’s motion to serve Venezuela with process, the Court directed

that he explain why his purported claims are not barred under the FSIA. See Apr. 7, 2017 Order

¶ 3 [Dkt. # 25]. Plaintiff’s explanation is mystifying. Plaintiff asserts that he is “de facto

stateless” because Venezuela “de facto stripped” him of his Venezuelan nationality on January 6,

2017. Mem. in Supp. of Mot. for Issuance of Request for Service Abroad (“Supp. Mem.”) at 1

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[Dkt. # 26]. He alleges a vast “corruption scheme in which Venezuelan passports and

identification documents . . . are being sold to the highest bidders,” and he suggests that such

schemes are run by “organized crime syndicates in Venezuela, with the tacit approval of the

government[.]” Id. at 1-2. Plaintiff claims, apparently because of the alleged corrupt acts, that

he is “falsely imprisoned” in the United States--but yet he seeks asylum here. Id. at 2.

Plaintiff cites portions of 28 U.S.C. § 1605(a)(5), see id. at 3, which waives a foreign

state’s immunity where:

money damages are sought against a foreign state for personal injury or death,
or damage to or loss of property, occurring in the United States and caused by
the tortious act or omission of that foreign state or of any official or employee
of that foreign state while acting within the scope of his office or employment;
except this paragraph shall not apply to—

(A) any claim based upon the exercise or performance or the failure to exercise
or perform a discretionary function regardless of whether the discretion be
abused, or

(B) any claim arising out of malicious prosecution, abuse of process, libel,
slander, misrepresentation, deceit, or interference with contract rights[.]

28 U.S.C. § 1605(a)(5). The Court of Appeals has aptly observed: “It is unclear precisely what

must be alleged to bring a claim within [the tortious activity] exception and thereby confer

jurisdiction. There may well be instances in which an allegation is so vague or so obviously

lacking a fundamental element of the alleged tort that the activity cannot properly be labeled

“tortious” for purposes of section 1605(a)(5).” MacArthur Area Citizens Ass’n v. Republic of

Peru, 809 F.2d 918, 921 (D.C. Cir. 1987). Such is the situation here. In addition to the

unsubstantiated claim of false imprisonment, plaintiff accuses Venezuela of “intentional

infliction of emotional distress and loss of enjoyment of life.” Supp. Mem. at 2. Plaintiff refers

to “[o]ne example” in the Amended Complaint where he alleges that a Venezuelan official at the

Venezuelan embassy in the District of Columbia “openly intimidated” him, which apparently left

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him with “intense feelings of sadness and powerlessness of being imprisoned in another country

that [he] is seeking haven on by corrupt Venezuelan officials who steal from governmental funds

. . . .” Id. at 2-3.

In the Amended Complaint, plaintiff alleges that on July 25, 2016, he went to the

consulate’s office at the Venezuelan embassy to renew his Venezuelan passport, which was to

expire on January 6, 2017. Am. Compl. ¶ 25. Plaintiff showed the clerk his passport and birth

certificate but “the clerk demanded a document called ‘cedula de identidad’ . . . given to people

who were over the age of 10.” Id. Plaintiff alleges that he “was never issued one because he left

Venezuela at age 8.” Id. When plaintiff asked if the document could be issued, “she replied that

he would have to return to Venezuela to get it.” Id. Plaintiff then spoke with “the Consul in

charge,” who confirmed that Plaintiff needed the document to renew his passport but allegedly

“promised to issue a temporary” document “and promised to call a few weeks later.” Id.

Allegedly, as Plaintiff “was writing his information for the clerk, a Venezuelan official started to

make intimidating gestures.” Id. When plaintiff “asked for the official’s name,” the official

allegedly questioned plaintiff’s authority, which “escalated with the Venezuelan official making

intimidating remarks.” Id. Plaintiff “quickly ran out of the Embassy” in “fear” and “took three

different Uber rides to avoid possible tailing by Venezuelan officials.” Id.

Plaintiff has alleged no injury beyond his fears, and the Court cannot exercise jurisdiction

over any defendant, let alone a foreign state, on such flimsy allegations. For it is well-

established that a complaint must contain “more than an unadorned, the-defendant-unlawfully-

harmed-me accusation” and that “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. As a result,

plaintiff’s motion for service will be denied and the complaint against Venezuela will be

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dismissed pursuant to Fed. R. Civ. P. 12(h)(3), which requires immediate dismissal “at any time”

the Court determines that it lacks subject matter jurisdiction.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS the Federal Defendants’ Partial Motion to

Dismiss and dismisses all claims except plaintiff’s FOIA claim. In addition, the Court dismisses

the complaint against Venezuela for want of subject matter jurisdiction. An appropriate Order

accompanies this Memorandum Opinion.

___________s/_______________
COLLEEN KOLLAR-KOTELLY
United States District Judge
Date: March 22, 2018

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