SOTO, et al v. UNITED STATES DEPARTMENT OF STATE

Filing 40

MEMORANDUM OPINION denying Plaintiffs' motion for leave to file a second amended complaint 38 . See attached document for details. Signed by Judge Randolph D. Moss on 3/25/2017. (lcrdm2, ) Modified on 3/27/2017 (kt).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MAURICIO ROJAS SOTO, et al.
Plaintiffs,
v.

Civil Action No. 14-604 (RDM)

UNITED STATES DEPARTMENT OF
STATE,
Defendant.

MEMORANDUM OPINION
This is an action brought by a family of four, who reside in Cali, Columbia, seeking to
obtain records the State Department relied upon in denying their applications for visas to enter
the United States. In two previous opinions, the Court granted summary judgment to the State
Department on Plaintiffs’ claims under the Freedom of Information Act, 5 U.S.C. § 552. See
Soto v. U.S. Dep’t of State, 118 F. Supp. 3d 355 (D.D.C. 2015) (“Soto I”); Soto v. U.S. Dep’t of
State, 14-cv-604, 2016 WL 3390667 (D.D.C. June 17, 2016) (“Soto II”). In Soto II, the Plaintiffs
also sought to assert claims under the Privacy Act, 5 U.S.C. § 552a, challenging the accuracy of
the records the State Department relied upon in denying their visa applications. Id. at *5. The
Court concluded that, although Plaintiffs’ complaint “mention[ed] the Privacy Act,” it could not
reasonably be construed to “allege that the Department failed to amend inaccurate agency
records” or to “seek to compel the Department to correct any error in its records.” Id. “In the
exercise of its discretion,” however, the Court deferred the entry of final judgment to give
Plaintiffs “an opportunity to move for leave to amend their complaint to add a claim for
amendment under the Privacy Act.” Id. at *6. But, at the same time, the Court cautioned that it

expressed no view on whether Plaintiffs could “satisfy the standard for filing an amended
complaint.” Id. Rather, the Court merely provided Plaintiffs with “one last opportunity to show
why this case should not be brought to a close.” Id.
Plaintiffs have since filed a motion for leave to file a second amended complaint,
asserting claims under the Privacy Act and seeking, among other relief, an order barring the
Department from disseminating certain records and requiring that it “amend its records
pertaining to [P]laintiffs by deleting and destroying the false and misleading statements”
allegedly contained in those records. See Dkt. 38-2 at 5 (proposed second amended complaint).
Federal Rule of Civil Procedure 15(a)(2) provides that courts “should freely give leave [to
amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2); see also Foman v. Davis, 371 U.S.
178, 182 (1962). But “leave to amend should be denied when amendment would be futile,” Sai
v. Dep’t of Homeland Sec., 149 F. Supp. 3d 99, 126 (D.D.C. 2015), including, most notably,
when “the proposed claim would not survive a motion to dismiss,” James Madison Ltd. by Hecht
v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996). In this case, amendment would be futile.
Plaintiffs’ proposed second amended complaint seeks relief based solely on the Privacy
Act. Dkt. 38-2 at 1, 3–4. As the Department observes, however, the Privacy Act protects only
“individuals,” see, e.g., 5 U.S.C. §§ 552a(b)-(f), which the Act defines to mean “citizen[s] of the
United States or . . . alien[s] lawfully admitted for permanent residence,” id. at § 552a(a)(2).
Moreover, only an “individual” is authorized to bring a civil action against an agency to enforce
these protections. Id. § 552a(g)(1). Here, however, it is clear that Plaintiffs are neither U.S.
citizens nor lawful permanent residents. Indeed, the premise of this litigation is that the
Department denied the applications of three of the plaintiffs for non-immigrant visas to enter the
United States and that it revoked the fourth plaintiff’s student visa. Dkt. 5 at 10. Accordingly,

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the Plaintiffs are not entitled to bring suit under the Privacy Act. See Cudzich v. INS, 886 F.
Supp. 101, 105 (D.D.C. 1995); accord, e.g., Fares v. INS, No. 94-1339, 1995 WL 115809 (4th
Cir. Mar. 20, 1995) (per curiam) *4 (explaining that the plaintiff was “not protected by the
Privacy Act since the Act only protects citizens of the United States or aliens lawfully admitted
for permanent residence”); Raven v. Panama Canal Co., 583 F.2d 169, 171 (5th Cir. 1978)
(“[B]y its use of a narrow definition of the word ‘individual,’ Congress displayed its intention to
exclude foreign national and nonresident aliens from the Privacy Act.”). It would thus be futile
to allow Plaintiffs to amend their complaint.
The Court will, accordingly, deny Plaintiffs’ motion for leave to file a second amended
complaint, Dkt. 38. Having resolved the sole remaining issue, it is now time to bring this action
“to a close,” Soto II, 2016 WL 3390667, at *6, and the Court will therefore proceed to enter
judgment.
A separate order will issue.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge

Date: March 25, 2017

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