RODRIGUEZ-ORTEZ v. RHEW et al
Filing
21
MEMORANDUM OPINION. Signed by Judge Jerome B. Simandle on 10/31/2011. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
FELIPE A. RODRIGUEZ-ORTEZ,
HON. JEROME B. SIMANDLE
Plaintiff,
Civil No. 10-0579 (JBS/KMW)
v.
MEMORANDUM OPINION
PERRY RHEW, in his capacity as
Chief, Administrative Appeals
Office, et al.,
Defendants.
SIMANDLE, District Judge:
This matter is before the Court on the unopposed motion of
Defendants Perry Rhew, in his capacity as Chief of Administrative
Appeals Office, the United States Citizenship and Immigration
Services, and the Department of Homeland Security, to dismiss for
lack of subject matter jurisdiction and for failure to state a
claim.
1.
[Docket Item 19.]
The Court finds as follows:
This action was initially filed in the United States
District Court for the Eastern District of Pennsylvania on
December 31, 2009.
[Docket Item 1.]
The action was thereafter
transferred to this District on February 1, 2010.
[Docket Item
5.]
2.
On August 4, 2011, Defendants filed their motion to
dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject
matter jurisdiction and pursuant to Fed. R. Civ. P. 12(b)(6) for
failure to state a claim. [Docket Item 19.]
Plaintiff has not
responded in opposition to Defendants’ motion.
3.
Plaintiff is a citizen of El Salvador who has resided in
the United States since 1997.
In 2001, Plaintiff applied for and
was granted temporary protected status (TPS), which status
extended until September of 2007.
On October 3, 2003, Plaintiff
was convicted of two counts of disorderly conduct in Lindenwold,
New Jersey.
Compl. Ex. B.
Plaintiff applied for an extension of
his TPS in September of 2007, but was denied, based on the
determination of Defendant Rhew, acting as Chief of the
Administrative Appeals Office of the U.S. Citizenship and
Immigration Services, that Plaintiff was no longer eligible for
TPS due to his conviction of two misdemeanors.
Id.
Plaintiff
seeks a declaratory judgment from this Court granting judicial
review of the administrative determination of Defendants and
reinstating Plaintiff’s TPS.
4.
In the instant motion, Defendants argue that this Court
must dismiss the action for lack of subject matter jurisdiction
because Plaintiff fails to identify a proper waiver of
Defendants’ sovereign immunity.
Additionally, Defendants argue
that this Court must dismiss the Complaint for failure to state a
claim because the Complaint does not allege any basis for this
Court to exercise jurisdiction.
5.
It is well established that under the doctrine of
sovereign immunity, suits cannot be brought against the United
2
States unless it has expressly consented to be sued, United
States v. Testan, 424 U.S. 392, 399, (1976), and the terms of the
consent, which must be unambiguously expressed, United States v.
Dalm, 494 U.S. 596, 607, (1990) (quoting Testan, 424 U.S. at
399), define the Court's jurisdiction.
Mitchell, 463 U.S. 206, 212 (1983).
United States v.
Although Defendant Perry
Rhew is nominally a defendant in this action, the Complaint names
Mr. Rhew in his official capacity as the Chief of the
Administrative Appeals Office, which is the equivalent to suing
the United States itself.
See Lang v. Rubin, 73 F. Supp. 2d 448,
450-51 (D.N.J. 1999) (“Sovereign immunity applies also when a
federal official is sued in his or her official capacity as an
agent of the United States”) (internal citations omitted).
Further, Plaintiff “bears the burden of demonstrating subject
matter jurisdiction.”
627 (3d Cir. 2009).
Lightfoot v. United States, 564 F.3d 625,
See also Welch v. United States, 409 F.3d
646, 651 (4th Cir. 2005) (“it is the plaintiff’s burden to show
that an unequivocal waiver of sovereign immunity exists and that
none of the statute’s wavier exceptions apply to his particular
claim.”).
6.
In the instant matter, Plaintiff has not met his burden
to show an express waiver of sovereign immunity.
Plaintiff’s
Complaint makes no mention of any statutory waiver of sovereign
immunity that would apply to his action.
3
Indeed, as Defendants
point out, his Complaint alleges no basis for subject matter
jurisdiction at all.
Plaintiff does not respond to Defendants’
argument that the Court lacks subject matter jurisdiction.
Plaintiff, therefore, has not met his burden to show subject
matter jurisdiction through a statutory waiver of sovereign
immunity.
Consequently, the Court must dismiss the action for
lack of subject matter jurisdiction.
The accompanying Order
shall be entered.
October 31, 2011
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
United States District Judge
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?