Weir v. U.S. Citzenship & Immigration Serv.

NICHOLAS WEIR, Plaintiff, v. UNITED STATES CITZENSHIP AND IMMIGRATION SERVICE (USCIS);NEW YORK DISTRICT DIRECTOR THOMAS CIOPPA (official and individual capacities),and ISO I. BOLIVAR (official and individual capacities), Defendants.

19-CV-2223 (RRM)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 28, 2020

MEMORANDUM AND ORDER

ROSLYNN R. MAUSKOPF, Chief United States District Judge.

Plaintiff Nicholas Weir, proceeding pro se, seeks a writ pursuant to the Mandamus Act, 28 U.S.C. § 1361 ("Mandamus Act"), and the Administrative Procedure Act, 5. U.S.C. § 701, et seq. ("APA"), directing defendant United States Citizenship and Immigration Service ("USCIS") to issue a decision on Weir's N-336 Request for a Hearing on a Decision in Naturalization Proceedings ("N-336") under Section 336 of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1101, et seq. (Compl. (Doc. No. 1).) Defendants now move to dismiss the complaint under Rules 12(b)(1), 12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motion is granted.

BACKGROUND

On August 16, 2013, Weir obtained conditional permanent resident status in immigrant classification CR6, as the spouse of a United States citizen; the conditions were removed on October 16, 2017. (Declaration of Mary M. Dickman ("Dickman Dec."), Ex. A (Doc. No. 24-4) at 3.)¹ On January 17, 2017, USCIS received Weir's Form N-400 application for naturalization,and on September 28, 2017, Weir appeared for an interview to determine his eligibility for naturalization. (Id.)

During this interview, Iso Bolivar asked Weir if he would be willing to bear arms on behalf of the United States and perform noncombatant service in the U.S. Armed Forces when required by law, which is an affirmation contained in the oath of renunciation and allegiance to be taken before admission for citizenship. (Id.; see also 8 U.S.C. § 1448 ("A person who has applied for naturalization shall, in order to be and before being admitted to citizenship, take . . . an oath (1) to support the Constitution of the United States; . . . and (5)(A) to bear arms on behalf of the United States when required by the law, or (B) to perform noncombatant service in the Armed Forces of the United States when required by the law, or (C) to perform work of national importance under civilian direction when required by the law.")) Weir responded that he was not willing to bear arms and perform noncombatant service in the U.S. Armed Forces when required by law. (Dickman Dec., Ex. A at 3.) In an addendum to his Form N-440, Weir stated that his "belief system," which is "deeply held and is used as a guidance for my life choices," restricted him from affirming that he would bear arms on behalf of the United States and perform noncombatant service in the U.S. Armed Forces when required by law. (Id.)

After the interview was completed, Bolivar gave Weir a Form N-14 Application, requesting a notarized statement regarding Weir's refusal to bear arms and/or perform noncombatant service in the U.S. Armed Forces when required by law. (Id.) The form asked Weir to explain his refusal in detail and also to explain the root of his beliefs. (Id.) Weir thereafter submitted a notarized statement in which he stated that "my personal belief systemoriginated in 2009." (Id.) Weir's statement neither explained the origination of his belief nor identified his belief system as being anything other than personal. (Id.)

On October 21, 2017, USCIS issued a decision, based on Weir's testimony and notarized statement, denying Weir's application for naturalization because

You have not demonstrated an attachment to the principles of the U.S. Constitution or [willingness] to take the full Oath of Allegiance. Specifically, you stated that you are unwilling to bear arms on behalf of the United States when required by law and perform noncombatant service in the U.S. Armed Forces when required by law. You did not establish that your unwillingness is based on religious training and belief or a deeply held moral or ethical code. Therefore, you do not qualify for a modification of the oath, and you are ineligible for naturalization. See INA 337(a) [8 U.S.C. § 1448(a)].

(Dickman Dec., Exhibit A at 2-3.) The decision stated that if Weir believed he could "overcome the grounds for this denial," he could request a hearing by submitting Form N-336. (Id. at 3.)

On or about February 6, 2018, Weir submitted his N-336. (Dickman Dec., Exhibit B (Doc. No. 24-5).) Weir was granted a hearing, which took place on August 29, 2018. (Id.) USCIS thereafter determined that Weir had failed to adequately explain his belief system and asked him to return for a second interview, which was scheduled to take place on April 5, 2019. (Id.) Weir neither appeared for the interview as scheduled nor requested that the interview be rescheduled. (Id.) On April 17, 2019, USCIS issued a notice of decision on the Form N-336, reaffirming the denial of Weir's N-400. (Id.)

The Complaint

Weir commenced this action on April 16, 2019, requesting that the Court compel USCIS, through Bolivar, to issue a determination on his N-336. (Compl. (Doc. No. 1) at 2.) Weir also alleges that Thomas Cioppa unlawfully denied his N-400 and that Bolivar was unable to justify the denial. (Id. at 1.) He further claims that "it is very clear that the government is retaliating for engaging in protected activities in federal and state courts" and engaging in "deception andcorruption" in handling his applications. (Id.) In a letter filed with the Court, Weir alleges that Bolivar was uninterested in reviewing his appeal and "more interested in finding an excuse to deny" the appeal. (Plaintiff's Letter Opposing Defendants' Request for an Extension of Time and Request for Default Judgment (Doc. No. 11) at ¶ 9.)

Service of the Complaint

The complaint was served upon the United States Attorney for the Eastern District of New York on April 23, 2019. (Dickman Dec. at ¶ 3.) In a motion filed on July 15, Weir requested additional time to serve the summons and complaint upon Cioppa and Bolivar in their individual capacities. (Doc. No. 12.) The Court granted this request, giving Weir until August 15, 2019, to serve process upon Cioppa and Bolivar. (Order dated 7/17/2019.) Weir filed an Affidavit of Service on October 30, 2019, that contains a sworn statement from a process server indicating that a copy of the summons and complaint was delivered on August 9, 2019 to "a CORPORATION" through "David Sole as AUTHORIZED AGENT for IMMIGRATION SERVICE OFFICER I. BOLIVAR" at 30 Barretts Avenue, Holtsville NY, 11742. (Doc. No. 20-1.) He also filed an Affidavit of Non-Service on the docket on November 7, 2019, stating that a process server attempted to serve Thomas Cioppa on August 1, 2019, at 26 Federal Plaza, New York, NY, but service was refused at that location. (Doc. No. 22.)

The Instant Motion

Defendants now move to dismiss the complaint under Rules 12(b)(1), (12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure. (Notice of Motion (Doc. No. 24).) In support of their motion to dismiss under Rule 12(b)(1), defendants argue that Weir's writ of mandamus was mooted when USCIS issued a response to Weir's N-336 application, and so this Court lacks subject matter jurisdiction. (Defendants' Memorandum in Support ("Def.'s Mem.") (Doc. No.24-6) at 8-10.) Defendants also argue that Weir's claims against Cioppa and Bolivar in their individual capacities request only that they be compelled to respond to his N-336 application; because equitable relief can only be obtained against government officials in their official, not individual, capacities, defendants assert that Weir's claims against Cioppa and Bolivar in their individual capacities must be dismissed for lack of jurisdiction. (Id. at 10-11.) Defendants also move to dismiss the claims against Cioppa and Bolivar pursuant to Rule 12(b)(5), because, they claim, Weir has failed to serve either of them with a summons and complaint. (Id. at 11.) Finally, defendants argue that the individual claims against Cioppa and Bolivar must be dismissed under Rule 12(b)(6) because Weir has failed to allege that either defendant engaged in an act or omission that violated his Constitutional rights, and moreover has failed to allege a cognizable claim under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). (Id. at 11-12.)

In response, Weir argues that Cioppa was apprised of his allegations of misconduct and argues that defendants have deviated from their own policies in failing to send him a new green card and in handling his N-336 application. (Affirmation in Opposition to Motion to Dismiss ("Pl.'s Reply") (Doc. No. 23) at ¶¶ 2, 4.)) In addition, Weir disputes that Cioppa and Bolivar were not served, asserting that defendants' claim otherwise "is just another attempt of the many attempts to obstruct justice." (Id. at ¶ 3.) Moreover, Weir argues that he "sought to be refunded for expenses and damages," though "getting a lawful decision on his application was the prime judicial relief [sought] in the complaint." (Id. at ¶ 6.) Weir requests leave to amend his complaint to "elaborately enumerate those damages sought along with added details." (Id.)

In response, defendants largely reiterate their prior briefing. (Def.'s Response (Doc. No. 25).) Though Weir requests to amend his complaint to include damages, defendants assert thatWeir has not alleged any facts that could provide a basis for a damages claim against either Cioppa or Bolivar. (Id. at 5.) Further, defendants assert that the claims against Cioppa and Bolivar must be dismissed under Rule 12(b)(5) because Weir's submitted affidavits of service indicate that Cioppa was not served and that service of process upon Bolivar did not comply with Section 308 of the New York Civil Practice Law and Rules. (Id. at 3-5.)

In an unauthorized sur-reply, Weir requests that Cioppa and...