Gomez v. Nielsen

301 F. Supp. 3d 91
CourtCourt of Appeals for the D.C. Circuit
DecidedMarch 22, 2018
DocketCivil Action No. 17–0217 (CKK)
StatusPublished

This text of 301 F. Supp. 3d 91 (Gomez v. Nielsen) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gomez v. Nielsen, 301 F. Supp. 3d 91 (D.C. Cir. 2018).

Opinion

COLLEEN KOLLAR-KOTELLY, United States District Judge

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, 91 S.Ct. 1999, 29 L.Ed.2d 619 (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.

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 *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 , 483 F.3d 824, 828 (D.C. Cir. 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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."

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Bluebook (online)
301 F. Supp. 3d 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gomez-v-nielsen-cadc-2018.