Louis v. Kelly et al

Filing 23

OPINION AND ORDER granting 21 motion to dismiss for mootness; dismissing 1 Complaint without prejudice as moot. The Clerk shall enter judgment accordingly, terminate all pending deadlines, and close the file. Signed by Judge John E. Steele on 12/7/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PHILIPPE LOUIS,
Plaintiff,
v.

Case No:

2:17-cv-393-FtM-99CM

ELAINE
DUKE 1,
Acting
Secretary,
Department
of
Homeland
Security,
JAMES
MCCAMENT, Deputy Director,
Citizenship and Immigration
Services, and DAVID ROARK,
Director,
Texas
Service
Center,
Citizenship
and
Immigration Services,
Defendants.

OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion to Dismiss for Mootness (Doc. #21) filed on October 25,
2017.

No response has been filed, and the time to respond has

expired.

The government also indicates that attempts to contact

counsel for plaintiff were unsuccessful.

For the reasons stated

below, the Court finds that the Complaint must be dismissed as
moot.

1

The successor public officer is automatically substituted
as the party. Fed. R. Civ. P. 25(d).

I.

Complaint

On July 13, 2017, plaintiff, a native and citizen of Haiti,
filed his Complaint to compel defendants to adjudicate his Form I140 Petition (Petition) that was filed with the United States
Citizenship and Immigration Services (CIS) on December 20, 2010,
seeking a classification as an alien of exceptional ability, and
in the national interest, under 8 U.S.C. § 1153(b)(2).

Plaintiff

seeks relief pursuant to the Administrative Procedures Act, 5
U.S.C. § 701, et seq., and by declaratory judgment, 28 U.S.C. §
2201 and § 2202.

After receipt of plaintiff’s Petition, in 2011,

CIS issued a Request for Evidence for additional documentation.
Plaintiff responded, and CIS issued a second Request for Evidence.
Plaintiff again responded.
alleges

that

his

Petition

Despite this compliance, plaintiff
remains

pending,

and

has

been

unreasonably delayed.
On August 3, 2017, CIS issued a Notice of Intent to Deny
plaintiff’s Petition because CIS concluded that plaintiff had not
established that he qualified as an alien of exceptional ability
or that he qualified for a national interest waiver of the job
offer requirement.

(Doc. #22-1, Exh. A.)

Plaintiff was provided

time to submit any additional information, but plaintiff did not
submit any response.
On September 25, 2017, CIS issued its Decision (Doc. #22-2,
Exh. B) denying the Form I-140 Petition for Alien Worker.

2

The

Decision

provides

that

plaintiff

could

appeal

to

the

Administrative Appeals Office, or file a motion to reopen or
reconsider. There is no indication that plaintiff exercised either
one of these options within the time period provided.
Defendants argue that the issuance of a Decision renders the
lawsuit moot, and that the case should be dismissed pursuant to
Fed. R. Civ. P. 12(b)(1) on this basis.
II.

The Court agrees.

Motion to Dismiss

In this case, plaintiff does not seek review of the denial of
his application, which occurred after the filing of his Complaint.
Rather, plaintiff is seeking to compel the agency to process his
visa application, which remained undetermined at the time the
Complaint was filed.

The failure to follow regulations, and the

failure to process a visa application altogether, is reviewable as
a

non-discretionary

function.

Kurapati

v.

U.S.

Bureau

of

Citizenship & Immigration Servs., 775 F.3d 1255, 1262 (11th Cir.
2014); Bonillo v. Sec'y, U.S. Dep’t of Homeland Sec., 497 F. App'x
913, 916 (11th Cir. 2012). 2

For this reason, and because visas

are to be considered in the priority order from the date an
application is accepted for processing, see 8 C.F.R. § 204.5(d),

2

Cf. Eldeeb v. Chertoff, 619 F. Supp. 2d 1190, 1201-1203
(M.D. Fla. 2007) (District courts remain split on whether the
amount of time it takes to process an application is a
discretionary function); Ren v. Mueller, No. 6:07-CV-790-ORL19DAB, 2008 WL 191010, at *4 (M.D. Fla. Jan. 22, 2008).

3

the

Court

finds

it

had

subject-matter

jurisdiction

when

the

Complaint was filed.
Things have changed however.

Defendants have now made a

decision on the application, and there remains nothing for the
Court to compel regarding the processing of the application.
Article III of the United States Constitution limits the
jurisdiction of the Court to cases or controversies that are
justiciable.

Al Najjar v. Ashcroft, 273 F.3d 1330, 1335 (11th

Cir. 2001).

A case becomes moot, and ceases to be a case or

controversy, when it no longer presents a live controversy with
respect to which the Court can give meaningful relief.

United

States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008).

“[E]ven

a once-justiciable case becomes moot and must be dismissed ‘when
the issues presented are no longer ‘live’ or the parties lack a
legally cognizable interest in the outcome.’”

Flanigan’s Enters.,

Inc. of Ga. v. City of Sandy Springs, Ga., 868 F.3d 1248, 1255
(11th Cir. 2017) (quoting Powell v. McCormack, 395 U.S. 486, 496
(1969)).
Because the Petition has now been decided, there exists no
case or controversy in which the court can give meaningful relief.
The case will be dismissed as moot.
Accordingly, it is now
ORDERED:

4

1. Defendant’s Motion to Dismiss for Mootness (Doc. #21) is
GRANTED.
2. The Complaint for Issuance of Writ of Mandamus (Doc. #1)
is dismissed without prejudice as moot.
3. The Clerk shall enter judgment accordingly, terminate all
pending motions and deadlines as moot, and close the file.
DONE AND ORDERED at Fort Myers, Florida, this
December, 2017.

Copies:
Counsel of record

5

7th

day of