Gomez v. Nielsen
Gomez v. Nielsen
Opinion of the Court
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 ,
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]."
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 Plaintiff has since withdrawn that motion.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 *94defendants' 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 ,
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 ,
B. Pro Se Pleadings
Pro se pleadings must be held to "less stringent standards than formal pleadings drafted by lawyers," Erickson v. Pardus ,
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.
1. Equitable Relief
"Mandamus is a 'drastic' remedy, 'to be invoked only in extraordinary circumstances.' " Fornaro v. James ,
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 ,
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 ,
*962. 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."
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).
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 ,
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."
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 ,
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 ,
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 [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[.]"
Plaintiff cites portions of
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[.]
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 ,
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.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.