Wilkes v. Blinken

CHRISTOPHER WILKES, Plaintiffs, v. ANTONY BLINKEN, et al., Defendants.

No. 4:21-cv-01148-SRC

United States District Court, E.D. Missouri, Eastern Division

April 29, 2022

MEMORANDUM AND ORDER

STEPHEN R. CLARK UNITED STATES DISTRICT JUDGE

Desirous of marriage to his Filipina fiancee, Christopher Wilkes petitioned the government for a visa that would allow her to journey to the United States. Since then, years have passed and still no visa. So now Wilkes sues for a court order forcing the government to act on his request. All Defendants move to dismiss-some say the Court has no jurisdiction over them and others contend Wilkes fails to state a claim. Some of these arguments have merit, but not others, and so the Court in part grants and denies the Defendants' motion.

I. Background

Unless otherwise noted, the parties agree on the following. Thus, the Court considers these facts while evaluating the Defendants' motion to dismiss and Wilkes's motion for summary judgment.

This case centers on Wilkes's K-1 visa petition for his fiancee. According to the Department of State, see Missourians for Fiscal Accountability v. Klahr, 830 F.3d 789, 793 (8th Cir. 2016) (noting that the Court may take judicial notice of government websites), a K-1 visa permits a foreign-citizen fiance(e) to travel to the United States and marry his or her United-States-citizen sponsor within 90 days of arrival. U.S. Dep't of State, Nonimmigrant Visa for a Fianc(e)e (K-1), TRAVEL.STATE.GOV (last accessed April 29, 2022), https://travel.state.gov/content/travel/en/us-visas/immigrate/family-immigration/nonimmigrant-visa-for-a-fiance-k-1.html#4. After the wedding, the foreign citizen can then apply for permanent-resident status. Id. To start the process, the United-States-citizen sponsor files a petition with United States Citizenship and Immigration Services, and after Citizenship and Immigration Services approves the petition, the petition goes to the Department of State's National visa Center. Id. The National visa Center then sends the petition to the appropriate embassy for a consular officer to conduct a visa interview. Id.

In July 2019, Wilkes filed a K-1 visa petition for his fiancee, Arlyn Siaton Velonta, with Citizenship and Immigration Services so that she could come to the United States as a permanent resident. Doc. 1 at ¶¶ 11-13. Citizenship and Immigration Services approved the petition in September 2020. Id. at ¶ 12. Now in the Department of State's National visa Center, the visa petition remains unadjudicated, and the Defendants have not provided any reason for the delay other than a message referencing “Covid-19 concerns.” Id. at ¶¶ 14-15; Doc. 9-1 at ¶¶ 5-6; Doc. 12 at ¶¶ 5-6. So, in September 2021, Wilkes filed this lawsuit against Antony Blinken, Secretary of State; Merrick Garland, the Attorney General; Alejandro Mayorkas, Secretary of Homeland Security; Ur Mendoza Jaddou, Director of United States Citizenship and Immigration Services; Christopher Wray, Director of the Federal Bureau of Investigation; Richard visek, Department of State's Acting Legal Advisor; Rena Bitter, Assistant Secretary of State for Consular Affairs; and Heather variava, Charge d'affaires at the U.S. Embassy to the Philippines. Id. at ¶¶ 5-10.

The lawsuit alleges that the Defendants have unreasonably delayed adjudication of his fiancee's visa and brings claims under the Administrative Procedure Act, 5 U.S.C. § 706(1), and the Mandamus Act, 28 U.S.C. § 1361. Doc. 1 at ¶¶ 11-33. The Defendants filed a motion to dismiss both for lack of jurisdiction and failure to state a claim. Doc. 4. Wilkes responded, and filed a motion for summary judgment, arguing that the undisputed materials facts entitle him to judgment as a matter of law. Doc. 8, 9. The parties have fully briefed the motions. Docs. 4, 5, 8, 9, 10, 11, 12, 15.

II. Standards

A. Rule 12(b)(1) standard

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may move to dismiss a claim for lack of subject-matter jurisdiction. To invoke federal jurisdiction, a plaintiff must demonstrate the existence of an actual and concrete dispute. United States v. Sanchez-Gomez, 138 S.Ct. 1532, 1537 (2018). If at any point before or during the proceedings the case becomes moot, the Court's jurisdiction dissipates. Id. The Eighth Circuit has held that “[i]n deciding a motion under Rule 12(b)(1), the district court must distinguish between a facial attack-where it looks only to the face of the pleadings-and a factual attack-where it may consider matters outside the pleadings.” Croyle v. United States, 908 F.3d 377, 380 (8th Cir. 2018). To survive a motion to dismiss for lack of subject-matter jurisdiction, the party asserting jurisdiction has the burden of establishing that subject-matter jurisdiction exists. V S Ltd. P'ship v. Dep't of Hous. & Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000).

B. Rule 12(b)(6) standard

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” The notice pleading standard of Rule 8(a)(2) of the Federal Rules of Civil Procedure requires the plaintiff to give “a short and plain statement showing that the pleader is entitled to relief ....” To meet this standard and to survive a Rule 12(b)(6) motion to dismiss, “a 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) (internal quotations and citation omitted). This requirement of facial plausibility means the factual content of the plaintiff's allegations must “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Park Irmat Drug Corp. v. Express Scripts Holding Co., 911 F.3d 505, 512 (8th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). The Court must grant all reasonable inferences in favor of the nonmoving party. Lustgraaf v. Behrens, 619 F.3d 867, 872-73 (8th Cir. 2010). Ordinarily, only the facts alleged in the complaint are considered for purposes of a motion to dismiss; however, materials attached to the complaint may also be considered in construing its sufficiency. Reynolds v. Dormire, 636 F.3d 976, 979 (8th Cir. 2011).

When ruling on a motion to dismiss, a court “must liberally construe a complaint in favor of the plaintiff ....” Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d 853, 862 (8th Cir. 2010). However, if a claim fails to allege one of the elements necessary to recover on a legal theory, the Court must dismiss that claim for failure to state a claim upon which relief can be granted. Crest Constr. II, Inc. v. Doe, 660 F.3d 346, 355 (8th Cir. 2011). Threadbare recitals of a cause of action, supported by mere conclusory statements, do not suffice. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although courts must accept all factual allegations as true, they are not bound to take as true a legal conclusion couched as a factual allegation. Twombly, 550 U.S. at 555 (citation omitted); Iqbal, 556 U.S. at 677-78.

C. Summary judgment standard

Rule 56(a) of the Federal Rules of Civil Procedure provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” In ruling on a motion for summary judgment, the Court is required to view the evidence in the light most favorable to the nonmoving party and must give that party the benefit of all reasonable inferences to be drawn from the underlying facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving party bears the initial burden of showing both the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Fed.R.Civ.P. 56(a).

III. Discussion

In one, omnibus motion, Secretary of Homeland Security Mayorkas, Director of United States Citizenship and Immigration Services Jaddou, Attorney General Garland, and FBI Director Wray move to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction, and the remaining State-Department Defendants move to dismiss under Rule 12(b)(6) for failure to state a claim. Wilkes also moves for summary judgment. The Court first addresses the motion to dismiss for lack of subject-matter jurisdiction, then considers the motion to dismiss for failure to state a claim and concludes with consideration of Wilkes's motion for summary judgment.

A. Motion to dismiss for lack of subject-matter jurisdiction

1. Defendants Mayorkas and Jaddou

Mayorkas and Jaddou, in what they call a “factual attack” on the Court's subject-matter jurisdiction, say that the Department of Homeland Security and Citizenship and Immigration Services have completed all the steps in the visa-adjudication process in this case for which they are responsible; thus, no live controversy exists between them and Wilkes and the claims against them are moot. Doc. 5 at pp. 7-8. The Court notes that in their “factual attack” Mayorkas and Jaddou cite only Wilkes's allegations along with at-this-stage judicially noticeable facts, so the Court views their motion to dismiss as a facial, not factual, attack on the Court's subject-matter jurisdiction. Croyle, 908 F.3d at 380 (“In deciding a motion under Rule 12(b)(1), the district court must distinguish between a facial . . . and a factual attack.” (emphasis added)); see also Id. at 380-81 (“This court is bound by the district court's characterization of the Rule 12(b)(1) motion.” (citing Carlson v. GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 2016)).

As mentioned, mootness occurs...