Holley v. Blinken

CHIARA DANIELLA HOLLEY, Plaintiff, v. ANTONY BLINKEN^[1], et al. Defendants.

Civil Action No. 20-CV-18938 (FLW)

United States District Court, D. New Jersey

March 30, 2022

NOT FOR PUBLICATION

OPINION

Hon Freda L. Wolfson, U.S. Chief District Judge.

This matter arises from a denied passport application. Chiara Daniela Holley (“Holley” or “Plaintiff”) seeks review of the Philadelphia Passport Agency's denial of her U.S. passport under the Administrative Procedure Act (“APA”), 5. U.S.C §§ 701 et seq., Mandamus Act, 28 U.S.C. § 1361, and Declaratory Judgment Act (“DJA”), 28 U.S.C. § 2201. Plaintiff also brought claims under the Fifth Amendment of the U.S. Constitution and the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Before the Court is the Government's motion to dismiss the APA, Mandamus Act, and DJA claims pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, and Rule 12(b)(6) for failure to state a claim. The Government moves to dismiss the Fifth Amendment and EAJA claims for failure to state a claim. For the following reasons, the Government's motion to dismiss is GRANTED. Plaintiff's APA, DJA, and Mandamus Act claims are dismissed with prejudice. Plaintiff's Fifth Amendment and EAJA claims are dismissed without prejudice. Plaintiff is given leave to amend her complaint, within 21 days from the date of the accompanying Order, to assert a claim under section 1503(a) of the Immigration and Nationality Act, consistent with this Opinion.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

For the purposes of this motion, the Court takes as true all allegations in Plaintiff's complaint.^[2]Ms. Holley was born in Peru in 1993 to a Peruvian mother. (ECF No. 1, ¶ 10.) Her biological father's name was not noted on the Peruvian birth certificate. (Pl. Opp'n., p. 2.) On July 28, 2007, Ms. Holley, at the age of 14, obtained lawful permanent resident status in the U.S., ^[3] and on February 3, 2011, Ms. Holley's mother's boyfriend, Keith Holley, a U.S. citizen, purportedly legitimated Ms. Holley according to Peruvian law.^[4] (ECF No. 1, ¶¶ 11-12.) Ms. Holley was 17 years old at the time. After her 18th birthday, Ms. Holley returned to Peru to study and abandoned her U.S. lawful permanent residency. (Pl. Opp'n., p. 2.) On January 22, 2019, Ms. Holley re-entered the United States on a tourist visa. Thereafter, Ms. Holley sought an extension of her tourist status pending resolution of her U.S. citizenship application. (See Notice of Receipt of 1-539, Application to Extend-Change Nonimmigrant Status, dated May 29, 2020.) On or about March 12, 2020, Ms. Holley applied for a U.S. passport with the United States Department of State, Philadelphia Passport Agency (the “Agency”), and on October 5, 2020 the Agency denied her request. (See October 5, 2020 Letter from Orlando L. Rivera, Director, U.S. Dept. of State to Ms. Holley.) The Agency determined Ms. Holley did not qualify for U.S. citizenship, because there was no evidence that she was adopted by Mr. Holley. (Id.) On December 14, 2020, Ms. Holley filed the instant complaint. (ECF No. 1.)

I. LEGAL STANDARD

A. Federal Rule 12(b)(1)

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a court must dismiss a claim when there is no subject matter jurisdiction. Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007). A Rule 12(b)(1) motion can raise a facial attack or a factual attack, which determines the standard of review. Const. Party of Pennsylvania v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014) (citations omitted); In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 632 (3d Cir. 2017). On a facial attack, courts “only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff, ” since the motion contests the sufficiency of the pleadings. Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000); Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016).

On a factual attack, courts may “consider evidence outside the pleadings, ” such as affidavits, since the motion contests the underlying basis for jurisdiction. Gould Elecs. Inc., 220 F.3d at 176 (citing Gotha v. United States, 115 F.3d 176, 178-79 (3d Cir. 1997)); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977) (“[N]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.”); CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008) (“[A] factual attack concerns the actual failure of [a plaintiff's] claims to comport [factually] with the jurisdictional prerequisites.”) (quotations and citation omitted). In such circumstances, the court “is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case, ” Mortensen, 549 F.2d at 891, but “must be careful [ ] not to allow its consideration of jurisdiction to spill over into a determination of the merits of the case, and thus must tread lightly.” Kestelboym v. Chertoff, 538 F.Supp.2d 813, 815 (D.N.J. 2008) (quotations and citation omitted). The proponent of jurisdiction bears the burden to prove that it exists throughout the litigation. Mortensen, 549 F.2d at 891. Here, the Government mounts a facial attack to Plaintiff's complaint.

B. Federal Rule 12(b)(6)

In reviewing a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, “courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quotations and citation omitted). While Federal Rule of Civil Procedure 8(a)(2) does not require that a complaint contain detailed factual allegations, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Thus, to survive a Rule 12(b)(6) motion to dismiss, the complaint must contain sufficient factual allegations to raise a plaintiff's right to relief above the speculative level, so that a claim “is plausible on its face.” Id. at 570; Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (citation omitted). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

II. DISCUSSION

The Government argues that Plaintiff's APA, Mandamus Act, and DJA claims should be dismissed for lack of subject matter jurisdiction. (Government's Motion to Dismiss (“Gov't. Mot.”) pp. 4-12.)^[5] Because Plaintiff concedes that her Mandamus Act cause of action is improper, I limit my analysis to the APA and DJA claims.

A. The Administrative Procedure Act

Plaintiff claims that the Government's “refusal to properly adjudicate [her] passport application” constitutes a violation of the Administrative Procedure Act, 5 U.S.C. § 706. (ECF No. 1, ¶ 21.) The APA authorizes courts to “set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). However, 5 U.S.C. § 704 circumscribes the universe of reviewable agency actions to “[a]gency action[s] made reviewable by statute and final agency action[s] for which there is no other adequate remedy in a court.” 5 U.S.C. § 704 (emphasis added.) In other words, waiver of the APA's sovereign immunity is triggered only where no other judicial remedies are available. Where an adequate alternative remedy exists, APA claims are precluded. See, e.g., Turner v. Sec'y of U.S. Dep't of Hous. & Urb. Dev., 449 F.3d 536, 540 (3d Cir. 2006) (reaffirming decision below that section 813 of the Fair Housing Act (“FHA”) provided plaintiff with another adequate remedy barring judicial review under the APA); United States v. Sensient Colors, Inc., 649 F.Supp.2d 309, 337 (D.N.J. 2009) (finding Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) provisions “provide adequate remedy such that application of the APA is unnecessary and superfluous”); Samahon v. F.B.I., 40 F.Supp.3d 498, 526, n. 13 (E.D. Pa. 2014) (APA claims barred due to adequate remedy provided by the Freedom of Information Act (“FOIA”)).

In that connection, the Government argues that 8 U.S.C. § 1503 of the Immigration and Nationality Act (“INA”) provides Plaintiff with such a remedy in this case. (Gov't. Mot., p. 6.) Under that statute, plaintiffs who have been denied the rights and privileges of citizenship may pursue relief in one of two ways: through the filing of a habeas petition if denied admission at the port of entry under §§1503(b)-(c), or if granted admission, by filing a declaratory judgment action under §1503(a) seeking “judgment declaring him to be a national of the United States.” 8 U.S.C. § 1503(a)-(c). In pertinent part, 8 U.S.C. § 1503(a) states the following:

If any person who is within the United States claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that [she] is not a national of the United States, such person may institute an action under the provisions of section 2201 of Title 28 against the

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