Abu Salim v. Secretary of the United States Homeland Security

Filing 9

MEMORANDUM OPINION and ORDER DISMISSING CASE that the motion to dismiss is GRATNED and this case is DISMISSED with prejudice; costs are taxed to plaintiff; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 5/14/2012. (AHI)

FILED
2012 May-14 AM 08:33
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ISMAEIL MOHAMMED ABU
SALIM,
Plaintiffs,
vs.
JANET NAPOLITANO,
SECRETARY OF THE UNITED
STATES DEPARTMENT OF
HOMELAND SECURITY,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)
)

Civil Action No. CV-11-S-3402-NE

MEMORANDUM OPINION AND ORDER
Plaintiff, Ismaeil Mohammed Abu Salim, brought this action against defendant,
Janet Napolitano, Secretary of the United States Department of Homeland Security,
“so as to determine the application of the United States Supreme Court case of Padilla
v. Kentucky, 130 S.Ct. 1473 (2010)[,] to the naturalization process of the plaintiff.”1
Defendant filed a motion to dismiss for lack of subject matter jurisdiction, pursuant
to Federal Rule of Civil Procedure 12(b)(1).2 Upon consideration of the motion, the
court determines that it is due to be granted.
1

Doc. no. 1 (Complaint) ¶ 1 (alteration supplied). Plaintiff’s complaint contains eight
numbered paragraphs. The paragraphs are obviously misnumbered, but no numbers are repeated,
and the numbers are arranged in ascending order. Thus, the court will cite to the complaint by using
the numbers assigned by plaintiff, even though they do not correspond with the total number of
paragraphs in the complaint.
2

Doc. no. 3.

I. PROCEDURAL BACKGROUND
Plaintiff commenced this action by filing a complaint on September 19, 2011.3
Defendant was served with process on November 10, 2011.4 Defendant filed its
motion to dismiss on January 9, 2012, arguing that the court does not have subject
matter jurisdiction to hear the claim.5 The court ordered plaintiff to respond on or
before January 23, 2012.6 Plaintiff did not file a timely response but, instead, on
January 26th, filed a motion for leave to file a late response.7 The court granted that
motion.8 In his response, plaintiff stated that “Defendant has argued in his [sic]
Motion to Dismiss that there is a defect in service,” but that “seems to be insignificant
because he [sic] admits to being served.”9 The rest of the filing is devoted to an
explanation of why plaintiff’s counsel was unable to timely file his response, and a
statement that “[t]here has been no prejudice to the Defendant as he [sic] admits to
being served and therefore the motion is due to be denied.”10

3

See doc. no. 1.

4

Doc. no. 3, at 1.

5

See generally id. The record does not contain a copy of a returned, executed summons, but
defendant admits to being served and has not raised any argument for dismissal on the basis of a
defect in service.
6

Text Order of January 9, 2012.

7

Doc. no. 5.

8

Text Order of May, 2012.

9

Doc. no. 5 ¶ 5.

10

Id. ¶ 7 (bracketed alteration supplied).

2

Plaintiff’s response to the motion to dismiss is, to say the least, mysterious.
Plaintiff does not address the sole issue raised in the motion to dismiss, namely, that
the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, cannot serve as a basis of
subject matter jurisdiction in the federal courts. Instead, plaintiff states that any defect
in service has caused no prejudice to defendant, who admits to being served.
However, defendant did not argue in the subject motion to dismiss that there was any
defect in service and, in fact, her statement regarding service indicates that she was
timely served.11
II. PLAINTIFF’S COMPLAINT
Plaintiff, Ismaeil Mohammed Abu Salim, is a citizen of Jordan, and a lawful
permanent resident of the United States.12 He is married to a United States citizen,
and the couple has two children, who are presumably American citizens.13 He resides
in North Alabama, and is the proprietor of either a “Church’s”® 14 or “Popeye’s”®15
fried chicken restaurant in the City of Decatur, Alabama.

Defendant, Janet

Napolitano, is the Secretary of the Department of Homeland Security, which is

11

See doc. no. 3, at 1. Defendant admits to being served on a date well with the 120 days
to effect service allowed by Federal Rule of Civil Procedure 4(m).
12

Doc. no. 1 ¶¶ 2, 9.

13

Id.

14

Id. ¶ 2.

15

Id. ¶ 9.

3

responsible for the administrative process by which immigrants become United States
citizens.16 See 6 U.S.C. § 271.
Plaintiff applied for citizenship status through the Immigration and
Naturalization Service (“INS”) in 2000.

The INS was a predecessor of the

Department of Homeland Security.17 Plaintiff’s application was denied in 2003, on
the basis of his “failure . . . to demonstrate he has been and still was a person of good
moral character.”18 That finding was based on plaintiff’s 1997 conviction for selling
alcohol to a minor.19 In that criminal proceeding, held in the Decatur Municipal
Court, plaintiff was represented by counsel, who did not inform him that a conviction
could adversely affect his ability to obtain citizenship in the future.20 Plaintiff pled
16

The caption of the complaint identifies the defendant as “Janet Napolitano, Secretary of
the United States Department of Homeland Security.” Doc. no. 1. However, in the body of the
complaint, plaintiff identifies defendant as “the agency which . . . is generally charged with
processing citizenship applications in the United States.” Id. ¶ 3. In his response to the motion to
dismiss, plaintiff refers to “the defendant United States.” Doc. no. 5 ¶ 4. Plaintiff uses the words
“his” and “he” to describe defendant; those pronouns do not properly apply to the United States, the
Department of Homeland Security, or Secretary Napolitano. Id. ¶ 5.
Defendant does not clarify the picture, referring in the motion to dismiss to “Defendants.”
See doc. no. 3, at 1, 6. Based on the caption in plaintiff’s complaint, this court will assume that there
is one defendant in this action, viz., Secretary Napolitano. For the purposes of evaluating subject
matter jurisdiction, the precise identity of the defendant or defendants is not essential.
17

Doc. no. 1 ¶ 9. The Department of Homeland Security absorbed the Immigration and
Naturalization service in 2002. 6 U.S.C. § 291. The naturalization functions of the predecessor
agency are now handled by the Citizen and Immigration Service, a bureau of the Department of
Homeland Security. See 6 U.S.C. § 271.
18

Doc. no. 1 ¶ 9.

19

Id. The denial of plaintiff’s citizenship application was affirmed by another court in this
district and the Eleventh Circuit. Id. ¶ 2.
20

Id. ¶ 9.

4

guilty to the charge, and received a sentence of twelve months’ probation.21
Seven years after plaintiff’s citizenship application was denied, the Supreme
Court ruled in Padilla v. Kentucky, — U.S. — , 130 S. Ct. 1473 (2010), that “in
criminal proceedings of non citizens, the right to counsel is effectuated only if the
defendant is informed by counsel as to how a conviction would impact his
immigration status.”22

Plaintiff “believes that Padilla would also prohibit the

Department of Homeland Security from using uncounseled pleas as the basis for
denying citizenship.”23
He requests a declaratory judgment on the applicability of Padilla to his
potential reapplication for citizenship in the future.24 He avers that “is necessary to
address this issue in this forum because a criminal conviction may not be collaterally
attacked in the administrative process.”25 Plaintiff asserts that the Declaratory
Judgment Act, 28 U.S.C. §§ 2201-02, and Federal Rule of Civil Procedure 57
establish the subject matter jurisdiction of this court to grant such relief.26

21

Id.

22

Id. ¶ 10. The quoted language is from the complaint. The precise holding of Padilla is
not relevant to this motion, which does not address the merits of plaintiff’s case.
23

Doc. no. 1 ¶ 10.

24

Id. ¶ 6.

25

Id.

26

Id.

5

III. MOTION TO DISMISS STANDARD
“A pleading that states a claim for relief must contain . . . a short and plain
statement of the court’s jurisdiction . . . .” Fed. R. Civ. P. 8(a)(1). “The party
invoking federal jurisdiction bears the burden of proving [it].” Bischoff v. Osceola
County, Florida, 222 F.3d 874, 877-878 (11th Cir. 2000) (citing Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561 (1992)); see also Sweet Pea Marine Ltd. v. APJ Marine,
Inc., 411 F.3d 1242, 1247 (11th Cir. 2005) (“The burden for establishing federal
subject matter jurisdiction rests with the party bringing the claim.”) (citing
McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002)).
Federal Rule of Civil Procedure 12(b)(1) provides that:
Every defense to a claim for relief in any pleading must be
asserted in the responsive pleading if one is required. But a party may
assert the following defenses by motion: (1) lack of subject-matter
jurisdiction; . . .
Fed. R. Civ. P. 12(b)(1) (2008). When ruling upon a Rule 12(b)(1) motion, the court
must first determine whether the moving party is mounting a “facial” or “factual”
attack on the court’s subject matter jurisdiction. The former Fifth Circuit explained
the difference, and the resulting effect on the district court’s framework of analysis,
in Williamson v. Tucker, 645 F.2d 404 (5th Cir. 1981),27 saying that:
27

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.

6

A motion to dismiss for lack of subject matter jurisdiction, Rule
12(b)(1), can be based on the lack of jurisdiction on the face of the
complaint. If so, the plaintiff is left with safeguards similar to those
retained when a Rule 12(b)(6) motion to dismiss for failure to state a
claim is raised — the court must consider the allegations in the plaintiff’s
complaint as true. E.g., Spector v. L Q Motor Inns, Inc., 517 F.2d 278,
281 (5th Cir. 1975); Herpich v. Wallace, 430 F.2d 792, 802 (5th Cir.
1970). But the two motions are treated quite differently when matter
outside the complaint is the basis of the attack. Rule [12(d)28] provides
that a motion to dismiss for failure to state a claim will be automatically
converted into a motion for summary judgment (Rule 56) if the court
considers matters outside the pleadings. This provides an additional
safeguard for the plaintiff, for, in addition to having all his allegations
taken as true, the trial court cannot grant the motion unless there is no
genuine issue of material fact. This protection is not, however, provided
the plaintiff who faces dismissal for lack of subject matter jurisdiction.
As the Court of Appeals for the Third Circuit has explained:
28

The Williamson opinion originally referenced Federal Rule of Civil Procedure 12(b),
which was a correct citation on the date the former Fifth Circuit’s opinion was entered. The relevant
portion of Rule 12(b) then read as follows:
If, on a motion asserting the defense numbered (6) to dismiss for failure of
the pleading to state a claim upon which relief can be granted, matters outside the
pleading are presented to and not excluded by the court, the motion shall be treated
as one for summary judgment and disposed of as provided in Rule 56, and all parties
shall be given reasonable opportunity to present all material made pertinent to such
a motion by Rule 56.
Williamson v. Tucker, 645 F.2d 404, 412 n.5 (5th Cir. 1981) (quoting Fed. R. Civ. P. 12(b)).
However, between May 20, 1981, when Williamson was handed down, and the present, Rule 12 was
amended, and the text from Rule 12(b) referenced in Williamson was both revised and moved from
Rule 12(b) to Rule 12(d), which reads as follows:
(d) Result of Presenting Matters Outside the Pleadings. If, on a motion
under Rule 12(b)(6) or 12(c), matters outside the pleading are presented to and not
excluded by the court, the motion must be treated as one for summary judgment
under Rule 56. All parties must be given a reasonable opportunity to present all
material that is pertinent to the motion.
Fed. R. Civ. P. 12(d).

7

The facial attack (on subject matter jurisdiction) does offer similar
safeguards to the plaintiff: the court must consider the allegations
of the complaint as true. The factual attack, however, differs
greatly for here the trial court may proceed as it never could under
12(b)(6) or Fed. R. Civ. P. 56. Because at issue in a factual
12(b)(1) motion is the trial court’s jurisdiction — its very power
to hear the case — there is substantial authority that the trial court
is free to weigh the evidence and satisfy itself as to the existence
of its power to hear the case. In short, no 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.
Williamson, 645 F.2d at 412-13 (quoting Mortensen v. First Federal Savings and
Loan Association, 549 F.2d 884, 891 (3rd Cir. 1977)) (footnote omitted) (emphasis
added); see also Barnett v. Okeechobee Hospital, 283 F.3d 1232, 1237-38 (11th Cir.
2002); Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990) (per curiam).
IV. DISCUSSION
Defendant attempts to make a factual challenge to the subject matter jurisdiction
of the court. In her motion to dismiss, defendant presents two pages of “facts,”
providing more information than is contained in the complaint, and citing to eleven
exhibits.29 Defendant also outlines the different standards to be applied to facial and
factual challenges, noting that the court may weigh evidence in evaluating a factual

29

Like the numbering of the paragraphs in plaintiff’s complaint, defendant’s exhibit
numbering is puzzling; there appears to be no Exhibit 3. However, unlike the misnumbered
paragraphs in the complaint, the court will not cite to any of defendant’s exhibits, because they are
not in the record.

8

challenge to subject matter jurisdiction.30 However, defendant has not actually
provided any of those exhibits to the court. There is no evidence for the court to
weigh and, thus, no factual challenge to evaluate. Nonetheless, the court will consider
whether defendant’s motion contains a sufficient facial challenge to the basis of
subject matter jurisdiction plaintiff asserts.31
Plaintiff premises this court’s subject matter jurisdiction on the Declaratory
Judgment Act, which provides, in relevant part, that:
In a case of actual controversy within its jurisdiction, . . . any
court of the United States, upon the filing of an appropriate pleading,
may declare the rights and other legal relations of any interested party
seeking such declaration, whether or not further relief is or could be
sought. Any such declaration shall have the force and effect of a final
judgment or decree and shall be reviewable as such.
28 U.S.C. § 2201(a) (emphasis supplied). As the plain statutory language suggests,
the Act creates a new remedy, not a new basis for jurisdiction. Indeed, “it is well
established that the Declaratory Judgment Act does not, of itself, confer jurisdiction
upon federal courts.” Stewart Weitzman, L.L.C. v. Microcomputer Resources, Inc.,
542 F.3d 859, 861-62 (11th Cir. 2008) (citations omitted, bracketed alteration
30

Doc. no. 3, at 4 (citing Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990) (per

curiam)).
31

An “Article III court must be sure of its own jurisdiction before getting to the merits” of
any action, Ortiz v. Fiberboard Corp., 527 U.S. 815, 831 (1999) (citation omitted), and “should
inquire into whether it has subject matter jurisdiction at the earliest stage in in the proceedings.”
University of South Alabama v. American Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999)
(citation omitted).

9

supplied). See also Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72
(1950) (“Congress enlarged the range of remedies available in the federal courts but
did not extend their jurisdiction. . . . The Declaratory Judgment Act allowed relief
to be given by way of recognizing the plaintiff’s right even though no immediate
enforcement of it was asked. But the requirements of jurisdiction — the limited
subject matters which alone Congress had authorized the District Courts to adjudicate
— were not impliedly repealed or modified.”).
Federal courts have general subject matter jurisdiction over actions brought by
federal agencies or officers. 28 U.S.C. § 1345. However, there is no corollary rule
whereby all suits brought against federal agencies or officers are within the subject
matter jurisdiction of the federal courts. See McQueary v. Laird, 449 F.2d 608, 610
(10th Cir. 1971) (“There is no general statutory jurisdiction over actions against
federal officers, employees and agencies.”).
The doctrine of sovereign immunity encompasses all actions
brought against the United States, including those against federal officers
and actors, in which the relief “sought would expend itself on the public
treasury or domain, or interfere with the public administration, or if the
effect of the judgment would be to restrain the Government from acting,
or to compel it to act.”
United States v. Kaufman, 980 F. Supp. 1247, 1250 (S.D. Fla. 1997) (quoting Dugan
v. Rank, 372 U.S. 609, 620 (1963) (citations and quotations in Dugan omitted)). The

10

general statutory provision establishing federal question jurisdiction, 28 U.S.C. §
1331, “cannot be construed to constitute a waiver of sovereign immunity.” Harbert
v. United States, 206 F. App’x 903, 907 (11th Cir. 2006) (citing Beale v. Blount, 461
F.2d 1133, 1138 (5th Cir. 1972)). Therefore, to establish subject matter jurisdiction
for a claim against an officer or agency of the federal government, a plaintiff “must
demonstrate that the claim being asserted is covered by a specific statutory
authorization . . . .” 14 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure § 3655, at 344 (3d ed. 1998).
Even evaluating the motion to dismiss under the plaintiff-friendly facial
challenge framework, it is clear that plaintiff has not satisfied the requirement of Rule
8 that he provide a “short and plain statement of the court’s jurisdiction.” Fed. R. Civ.
P. 8(a)(1). Plaintiff has identified no statutory authority demonstrating a waiver of
sovereign immunity and thereby allowing him to sue defendant.32 The only bases he
lists for this court’s jurisdiction are the Declaratory Judgment Act, which does not
create jurisdiction, and Federal Rule of Civil Procedure 57, which simply states that
the Rules apply to actions seeking declaratory judgments.
In his statement of jurisdiction, plaintiff avers that he requires a declaratory
judgment regarding the impact of Padilla on his convictions, “because a criminal
32

Nor has he attempted to invoke the general federal question statute.

11

conviction may not be collaterally attacked in the administrative process.”33 However,
plaintiff’s inability to collaterally attack his criminal conviction in an administrative
proceeding does not constitute a basis of subject matter jurisdiction for a collateral
attack in the courts. Collateral attacks on criminal convictions are governed by a
finely-wrought statutory scheme of their own. See, e.g. 28 U.S.C. §§ 2241 et seq.
(habeas corpus procedures). Plaintiff has not invoked any statutory authority for
bringing this collateral attack. Plaintiff may not sidestep those procedures, and his
obligation to demonstrate the subject matter jurisdiction of the court, simply by
bringing an action for declaratory judgment.34
V. CONCLUSION AND ORDER
For the reasons stated herein, the motion to dismiss is GRANTED, and this case
is DISMISSED with prejudice. Costs are taxed to plaintiff. The clerk is directed to
close this file.
DONE and ORDERED this 14th day of May, 2012.
______________________________
United States District Judge
33

Doc. no. 1 ¶ 6.

34

In addition to plaintiff’s failure to carry his burden in identifying statutory authority for
this court’s jurisdiction, dismissal is likely proper on the ground that the complaint fails to satisfy
justiciability requirements. Plaintiff is attempting to sue a federal officer (or agency) to establish
that his conviction in a municipal court was unconstitutional. It is highly doubtful that a case or
controversy, requisite to establish jurisdiction, exists between plaintiff and defendant on that
question.

12