Sibley v. U.S. Department of Homeland Security, Citizenship & Immigration Services, et al

Filing 20

ORDER DISMISSING CASE. Signed by Judge Marcia G. Cooke on 10/13/2011. (tm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-21603-Civ-COOKE/TURNOFF
CHARLES J. SIBLEY
Plaintiff
vs.
U.S. DEPARTMENT OF HOMELAND
SECURITY, CITIZENSHIP AND
IMMIGRATION SERVICES, et al.,
Defendants.
__________________________________/
ORDER OF DISMISSAL
THIS MATTER is before me upon Defendants’ Response to Petition for Mandamus
Relief, which I have conveyed as a Motion to Dismiss, and Plaintiff’s response thereto. For the
reasons explained below, Defendants’ Motion to Dismiss is granted.
DISCUSSION
Pro se Plaintiff, Charles J. Sibley, is an immigration attorney.

Defendant U.S.

Department of Homeland Security is the federal agency charged with the administration of
immigration and naturalization adjudication functions.

It is Plaintiff’s contention that

Defendants have purposefully targeted and denied the applications of Plaintiff’s clients. In 2007,
Plaintiff filed a petition for mandamus relief to require the fair adjudication of his client’s
immigration applications. Sibley v. U.S. Dep’t of Homeland Sec., et al., Case No. 07-21307MGC. That petition was dismissed because it failed to state a clear legal right, failed to identify
a specific ministerial duty and was procedurally improper because Plaintiff had alternative
remedies available. The alternative remedies available to Plaintiff included the appeals process
for immigration and/or naturalization claims and, possibly, a Bivens action against the individual

“rogue” officers Plaintiffs contends are responsible for the summary denial of the immigration
petitions. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971).1 On May 6, 2011, and in anticipation of pursuing a Bivens action, Plaintiff filed a
second petition for writ of mandamus to require Defendants to “investigate” his allegations. (See
Petition, ¶¶ 10-12). As of the date of this order, Defendants have not conducted an investigation.
Mandamus is proper only where the plaintiff can show a clear legal right to the relief
sought, the defendant has a clear, non-discretionary duty to act, and where no other remedy is
available. Nyaga v. Ashcroft, 323 F.3d 906, 911 (11th Cir. 2003) (citing Heckler v. Ringer, 466
U.S. 602, 617 (1984)). A writ of mandamus “will not issue to correct a duty that is to any degree
debatable.’ In re Bayshore Food Truck Sales, Inc., 471 F.3d 1233, 1258 (11th Cir. 2006)
(quoting United States v. Denson, 603 F.2d 1143, 1147 n.2 (5th Cir. 1979)). The duty to act
must be “simple, absolute, and definitive” and absent of any “personal deliberation and
judgment.” See Kitchen v. CSX Transp., Inc., 6 F.3d 727, 732 (11th Cir. 1993) (contrasting
ministerial acts with discretionary acts).
The Inspector General Act of 1978 was enacted to ensure integrity and efficiency within
governmental departments and agencies.

5 U.S.C. App. 3, § 2. The Inspector General is

responsible for conducting and supervising audits and investigations related to the programs and
operations of the Department of Homeland Security. 2 5 U.S.C. App. 3, §§ 2(1) and 11(2). Thus,
Plaintiff’s petition for writ of mandamus is a request to compel the Inspector General to
investigate the allegations that Defendants have purposefully denied the applications of

1
A Bivens action challenges the constitutionality of the actions of federal officials, analogous to
the 42 U.S.C. § 1983 actions against state officials.
2

The Homeland Security Act of 2002 established an Office of Inspector General in the
Department of Homeland Security. 6 U.S.C. § 113(b).
2

Plaintiff’s clients.

Contrary to Plaintiff’s assertions, however, an Inspector General’s

investigation in matters such as this are discretionary.
In addition to the authority otherwise provided by [the Inspector General Act],
each Inspector General, in carrying out the provisions of [the Inspector General
Act], is authorized … to make such investigations and reports related to the
administration of the programs and operations of the applicable establishment as
are, in the judgment of the Inspector General, necessary or desirable.
5 U.S.C. App. 3, § 6(a)(2). Absent a clear, non-discretionary duty to act, Plaintiff has no
entitlement to a writ of mandamus. Accordingly, I hereby ORDER and ADJUDGE that
Plaintiff’s Petition for Writ of Mandamus is DENIED.

This case is DISMISSED with

prejudice. The Clerk is directed to CLOSE this case. All pending motions, if any, are DENIED
as moot.
DONE and ORDERED in chambers at Miami, Florida this 13th day of October 2011.

Copies furnished to:
Counsel of Record

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