Stone v. U.S. Embassy Tokyo

JACK STONE, Plaintiff, v. U.S. EMBASSY TOKYO, et al., Defendants.

Civil Action No.: 19-3273 (RC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

November 16, 2020

Re Document Nos.: 154, 171, 186

MEMORANDUM OPINION

DENYING PLAINTIFF'S MOTION FOR LEAVE TO AMEND THIRD AMENDED COMPLAINT; DENYING PLAINTIFF'S MOTION TO JOIN; GRANTING DEFENDANTS' MOTION TO DISMISS

I. INTRODUCTION

In this case, Plaintiff Jack Stone, proceeding pro se, claims that the United States Embassy in Tokyo and the Department of State ("Defendants") have unlawfully refused to issue citizenship and immigration documents that he requested for his family. He recently filed a third amended complaint. See Pl.'s Third Am. Compl., ECF No. 171-1. It includes more claims than Plaintiff had leave to add, so the Court treats the pleading in part as a new motion for leave to amend his complaint. Plaintiff also seeks to join Jennifer Wooton, U.S. Senator Brian Schatz's Director of Constituent Services, as a defendant. See Pl.'s Mot. to Join Jennifer Wooton as a Def. ("Pl.'s Mot. to Join"), ECF No. 154. Finally, Defendants move to dismiss a claim that the Court permitted Plaintiff to add to his complaint. See Defs.' Mot. to Dismiss & Opp'n to Pl.'s Third Am. Compl. ("Defs.' Mot. & Opp'n"), ECF Nos. 186-1, 187-1.¹ For the reasons explained below, the Court will deny Plaintiff's motions and grant Defendants' motion.

II. FACTUAL BACKGROUND

The Court presumes familiarity with its prior opinions in this case. See Mem. Op. Granting Defs.' Mot. for Summ. J. and Denying Pl.'s Mots. for Summ. J., ECF No. 227; Stone v. U.S. Embassy Tokyo, No. 19-3273, 2020 WL 5775196 (D.D.C. Sept. 28, 2020); Stone v. U.S. Embassy Tokyo, No. 19-3273, 2020 WL 5653699 (D.D.C. Sept. 23, 2020); Stone v. U.S. Embassy Tokyo, No. 19-3273, 2020 WL 4260711 (D.D.C. July 24, 2020). Accordingly, this opinion will briefly describe only the facts and allegations relevant to the pending motions.

On July 24, 2020, this Court granted in part Plaintiff's motion to amend his Second Amended Complaint to include a claim for an order to compel citizenship for Plaintiff's putative second minor child, S.S. See Stone, 2020 WL 4260711, at *5. The Court "d[id] not grant leave to amend the complaint to include all of Plaintiff's other filings and requests." Id. at *8.

On August 24, 2020, Plaintiff filed a Third Amended Complaint including four separate sections: (1) "Plaintiff Sues Defendants to Obtain Consular Report of Birth Abroad and Social Security Card for Minor Child S.S., a U.S. Citizen," Pl.'s Third Am. Compl. at 1; (2) "Plaintiff Demands Defendants Issue Passport to S.S.," id. at 13; (3) "Plaintiff Joins Scott Renner, Gary Gardner, David Brizzee, Ambassador to Japan Bill Hagerty and Michael Pompeo as Defendants," id. at 15; and (4) "Plaintiff Joins United States Citizens and Immigration Services (USCIS) as Defendant," id. at 16. Defendants then moved to dismiss the first claim and opposed the addition of the three latter claims in the new amended complaint. See Defs.' Mot. & Opp'n.

III. LEGAL STANDARD

A. Motion for Leave to Amend a Complaint

A party may amend its pleading once as a matter of course within twenty-one days after serving its pleading, or within certain time periods if the pleading is one to which a responsivepleading is required. Fed. R. Civ. P. 15(a)(1); see Bode & Grenier, LLP v. Knight, 808 F.3d 852, 860 (D.C. Cir. 2015). Otherwise (such as here, when a party has already filed amended pleadings), a party may amend its pleading only with the opposing party's consent or the court's leave. Fed. R. Civ. P. 15(a)(2); see also Knight, 808 F.3d at 860. The decision to grant or deny leave to amend "is committed to a district court's discretion," Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam), and should be freely given "when justice so requires," Fed. R. Civ. P. 15(a)(2). However, the court may deny a motion to amend if the proposed amendment would be futile. De Sousa v. Dep't of State, 840 F. Supp. 2d 92, 113 (D.D.C. 2012) (citing Foman v. Davis, 371 U.S. 178, 182 (1962); James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996)). A motion to amend is futile "if the proposed claim would not survive a motion to dismiss." Ludwig, 82 F.3d at 1099. Of course, a court must be mindful that a pro se litigant's complaint is "construed liberally and is held to 'less stringent standards than formal pleadings drafted by lawyers.'" Lemon v. Kramer, 270 F. Supp. 3d 125, 133 (D.D.C. 2017) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

B. Rule 12(b)(6) Motion to Dismiss

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement" that gives the defendant fair notice of the claim and the grounds upon which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A motion to dismiss under Rule 12(b)(6) "tests the legal sufficiency of a complaint" under that standard; it asks whether the plaintiff has properly stated a claim. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To defeat such a motion, the "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "Threadbare recitals of the elementsof a cause of action, supported by mere conclusory statements," are therefore insufficient. Id. A court need not accept a plaintiff's legal conclusions as true, see id., nor presume the veracity of legal conclusions that are couched as factual allegations. See Twombly, 550 U.S. at 555. Finally, a court need not accept as true factual allegations that "contradict[] exhibits to the complaint or matters subject to judicial notice." See Kaempe v. Myers, 367 F.3d 958, 963 (D.C. Cir. 2004).

IV. ANALYSIS

A. Plaintiff's Motion for Leave to Further Amend the Complaint

In construing Stone's newly amended complaint, the Court agrees with Defendants that Plaintiff asserts three new claims: a claim to compel the issuance of a U.S. Passport for S.S., a request to join certain Department of State officials as defendants, and a claim concerning the denial of Plaintiff's wife's Form I-485 Application.² See Defs.' Mot. & Opp'n at 16-22. Because the Court's July 24, 2020, opinion "[did] not grant leave to amend the complaint to include all of Plaintiff's other filings and requests," Stone, 2020 WL 4260711, at *8, the Court will construe these claims as a motion for leave to further amend the complaint. The Court will also address Plaintiff's motion to join Jennifer Wooton, U.S. Senator Brian Schatz's Director of Constituent Services, as a defendant. See Pl.'s Mot. to Join. The Court addresses each claim in turn.

i. Claim to Compel the Issuance of a U.S. Passport for S.S.

Plaintiff first "demands a passport to be issued to S.S." Pl.'s Third Am. Compl. at 13. Under the Administrative Procedure Act ("APA"), "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action . . . is entitled to judicialreview thereof." 5 U.S.C. § 702. The APA generally limits causes of action to those challenging final agency action. Trudeau v. FTC, 456 F.3d 178, 188-89 (D.C. Cir. 2006). "Final agency action 'mark[s] the consummation of the agency's decision making process' and is 'one by which rights or obligations have been determined, or from which legal consequences will flow.'" Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety Comm'n, 324 F.3d 726, 731 (D.C. Cir. 2003) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)). "With a few exceptions, if there is no final agency action, there is no basis for review of the government's decision or policy." Cobell v. Norton, 240 F.3d 1081, 1095 (D.C. Cir. 2001).

Here, Plaintiff alleges no agency action, inaction, or involvement at all. It does not appear from Plaintiff's proposed amended complaint that he has undertaken any steps to obtain a passport for S.S., the application for which, as noted in Plaintiff's own exhibit, "must be completed" on a Form DS-11, U.S. Passport Application. Pl.'s Third Am. Compl. Ex. E. Plaintiff also states that he "will pay" the required fee for a passport for S.S., id. at 14, suggesting that he has not done anything besides file the instant motion to obtain a passport for S.S. To the extent that Plaintiff challenges wrongful agency inaction, that sort of claim can proceed "only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take." Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004). Surely an agency is not legally required to take action on an application that, like S.S.'s passport application, has not even been filed. Given Plaintiff's lack of efforts to obtain a passport for S.S. through the Department of State, "there is no basis for review of the government's decision." Cobell, 240 F.3d at 1095.

Furthermore, even if Plaintiff had taken steps with the Department of State to obtain a passport for S.S., the Court can only direct an agency to "take action upon a matter, withoutdirecting how [the agency] shall act." S. Utah Wilderness All., 542 U.S. at 64. At most, the Court could merely issue a mandamus to order the Department of State to take action on the passport application, but it could not order the Department of State to approve the application and issue S.S. a passport. However, given the lack of any agency action or wrongful agency inaction, the Court will deny as futile Plaintiff's request for leave to amend his complaint to include a motion to compel issuance of a passport for S.S.

ii. Requests to Join Department of State Officials and Jennifer Wooton

as Defendants for Unspecified Tort Claims and Privacy Act Claim

Plaintiff next seeks to add several Department of State officials—Scott Renner, Gary Gardner, David Brizee, former U.S. Ambassador to Japan Bill Hagerty, and...