SARHAN v. UNITED STATES CITIZENS & IMMIGRATION SERVICES et al

Filing 43

MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 03/26/2024, that Defendants' motion to dismiss (Doc. 30 ) is GRANTED and the complaint is DISMISSED WITHOUT PREJUDICE; FURTHER ORDERED that Dr. Sarhan's motions for preliminary relief (Doc. 22 , 34 ), motion to disqualify the magistrate judge (Doc. 39 ), and objections to the magistrate judge's memorandum order and recommendation (Docs. 38 , 41 ) are all DENIED as MOOT. (at)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ROBERT SARHAN, M.D.,
Plaintiff,
v.
UNITED
STATES
CITIZENS
&
IMMIGRATION SERVICES (USCIS);
UR MENDOZA JADDOU, in her
official capacity as Director
of USCIS, ALEJANDRO MAYORKAS,
in his official capacity as
Secretary
of
the
U.S.
Department
of
Homeland
Security; DONNA P. CAMPAGNOLA,
in her official capacity as the
Director of USCIS’s California
Service
Center;
and
SUSAN
DIBBINS,
in
her
official
capacity
as
Chief
of
the
Administrative Appeals Office,
Defendants.

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1:23cv657

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
This case concerns a challenge to a decision of the U.S.
Citizens & Immigration Services (“USCIS”) to deny the Form I-129F
petition of pro se Plaintiff Robert Sarhan, M.D., to classify
Shivani Bennet as his fiancée to permit her to enter the United
States.

Before

the

court

are

four

matters.

The

first

is

Defendants’ motion to dismiss the complaint for lack of subject
matter jurisdiction.

(Doc. 30.)

Dr. Sarhan has responded in

opposition (Doc. 33), and Defendants have replied (Doc. 35).

The

second are Dr. Sarhan’s motions for preliminary relief, which seek
an order to require Defendants to issue a visa to permit his
fiancée to travel to North Carolina.

(Docs. 22, 34.) 1

The third

is Dr. Sarhan’s motion to disqualify the magistrate judge (Doc.
39), to which Defendants have responded (Doc. 40).

Finally, also

before the court are Dr. Sarhan’s objections (Docs. 38, 41) to the
memorandum opinion and recommendation of the magistrate judge
denying preliminary injunctive relief (Doc. 36).
For the reasons set forth below, Defendants’ motion to dismiss
will be granted, and Plaintiffs’ remaining motions as well as his
objections to the recommendation of the magistrate judge will be
denied as moot.
I.

BACKGROUND
The relevant facts outlined in Dr. Sarhan’s complaint (Doc.

1), which are taken as true for the purpose of Defendants’ motion
to dismiss, show the following:
Dr. Sarhan is a U.S. citizen and resident of Pittsboro, North
Carolina.

(Id. ¶ 13.)

Defendant Alejandro Mayorkas is the

Secretary of the U.S. Department of Homeland Security (“DHS”), and
Defendant Ur Jaddou Mendoza is the USCIS Director.
15.)

(Id. ¶¶ 14,

Defendant Donna P. Campagnola is the Director of the USCIS

Dr. Sarhan’s first motion (Doc. 22) is captioned “Motion for Hearing”
but requests mandamus relief “immediately.” The second motion (Doc. 34)
is an emergency motion to grant a visa for Shivani Bennet.

1

2

California Service Center, and Defendant Susan Dibbins is the Chief
of the Administrative Appeals Office (“AAO”) of the USCIS.

(Id.

¶¶ 16, 17.) Campagnola and Dibbins are alleged to be “responsible”
for the denial of Dr. Sarhan’s petition.

(Id.)

All individual

Defendants are sued in their respective official capacities.

(Id.

¶¶ 14-17.)
Dr. Sarhan alleges that he met his fiancée, Shivani Bennet,
online in June 2017.
(Id.)

(Id. ¶ 30.)

She lives in New Delhi, India.

They met in person in Australia once in June 2018 and one

year later decided to get married.

(Id.)

Dr. Sarhan filed a visa application on January 17, 2021. (Id.
¶ 40.)

Following USCIS’s request for evidence later that year,

Campagnola denied the application on January 7, 2022, due to a
lack of evidence showing why Dr. Sarhan failed to fulfill the
fiancée
¶ 41.)

visa

statute’s

“two-year

meeting

requirement.”

(Id.

Under this requirement, a non-citizen fiancée and citizen

must have “met in person within 2 years before the date of filing
the petition,” subject to the Secretary of Homeland Security’s
discretion to waive it.

8 U.S.C. § 1184(d)(1).

Dr. Sarhan

appealed the denial, and Dibbins denied the appeal.

(Id. ¶¶ 43,

44.)
Based on these allegations, Dr. Sarhan brings six claims for
relief.

The first claim, entitled “Contrary to Constitutional

Right and Without Observance of Procedure Required by Law Arbitrary
3

and Capricious and Not in Accordance with Law,” appears to complain
that the failure to provide a reasonable period to rebut USCIS’s
findings and the denial of the petition violated Dr. Sarhan’s right
to due process under the U.S. Constitution.

(Id. ¶¶ 49, 50.)

His second claim, entitled “Action, Findings and Conclusions
in Excess of Statutory Authority,” contends that the USCIS acted
“in excess of statutory jurisdiction, authority and short of
statutory right” when it enforced 8 C.F.R. § 214.2(k) and seeks to
have the agency’s actions set aside under 5 U.S.C. § 706(2).

(Id.

¶ 55.)
His third claim, entitled “Agency Action Unlawfully Withheld
and Unreasonably Delayed,” contends that, under 5 U.S.C. § 706(2),
the court can compel a withheld or unreasonably delayed agency
decision

and

that,

because

of

the

delays

Dr.

Sarhan

faced,

Defendants’ “actions and inactions must be held unlawful and set
aside.”

(Id. ¶ 64.)

His fourth claim, labeled “Agency Action Unlawfully Denied
the Fiance Visa for Churning Fees,” contends that USCIS’s funding
through fees is “illegal and unethical.”

(Id. ¶ 71.)

His fifth claim, brought under the “Federal Tort Claim Act,”
seeks

money

damages

and

alleges

that

Campagnola

and

Dibbins

“intentionally denied [his fiancée’s] visa for churning fees” and
“intentionally, maliciously and with long delays, denied [his
fiancée’s] visa without [] a chance to respond, a violation of due
4

process.”

(Id. ¶ 75.)

Finally, his sixth claim, entitled “Declaratory and Mandamus
Relief,” seeks both types of relief.

(Id. ¶¶ 79-81.)

He also

seeks a writ of mandamus “compelling the USCIS to immediately issue
the fiance visa” and “to expedite the K-1 visa.”

(Id. ¶¶ 83, 84.)

Dr. Sarhan moved on August 16, 2023, and again on November
16, 2023, for preliminary relief seeking an order granting Bennet
a visa.

(Docs. 22, 34.)

After holding a hearing, the magistrate

judge issued a memorandum opinion and recommendation that the court
deny both motions.

(Doc. 36.)

Dr. Sarhan filed objections (Doc.

38, 41) 2 and a motion to disqualify the magistrate judge (Doc. 39).
Defendants now move to dismiss the complaint for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1).

(Doc. 30.)

The motion to dismiss is fully

briefed and, like the other motions and objections, ready for
resolution.
II.

ANALYSIS
Dr. Sarhan appears pro se, thus his pleadings “should not be

scrutinized with such technical nicety that a meritorious claim
should be defeated.”
Cir. 1978).

Gordon v. Leeke, 574 F.2d 1147, 1151 (4th

But the liberal construction of a pro se plaintiff’s

The first set of objections was filed one day after the deadline and
the second set one month after the deadline. The untimeliness ultimately
is a moot point for the reasons discussed below.
2

5

filing does not require the court to ignore clear pleading defects
in it, Bustos v. Chamberlain, No. 3:09–1760, 2009 WL 2782238, at
*2 (D.S.C. Aug. 27, 2009), to become an advocate for the pro se
party, Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th Cir.
1990), or to “construct full blown claims from sentence fragments,”
Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)
(noting that “[d]istrict judges are not mind readers”).

Even under

this more liberal standard, his claims plainly fail.
A.

Motion to Dismiss
1.

Claim One

Defendants

contend

that

the

court

lacks

subject

matter

jurisdiction over claim one because Congress stripped the federal
district courts of jurisdiction to review discretionary decisions
of the Secretary of Homeland Security, such as the decision to
waive the requirement that the petition establish that the parties
have met in person within two years before the date of the filing
of the petition.

(Doc. 31 at 12.)

Dr. Sarhan contends that this

jurisdictional limitation applies only to revocations, not visa
applications.
Federal

(Doc. 33 at 4.)
courts

have

limited

jurisdiction,

which

may

be

exercised only where it is specifically authorized by federal
statute and by the Constitution.

Kokkonen v. Guardian Life Ins.

Co. of Am., 511 U.S. 375, 377 (1994); see, e.g., 28 U.S.C. § 1331.
The burden is on a plaintiff to establish jurisdiction.
6

Kokkonen,

511 U.S. at 377.

If a court determines that jurisdiction is

lacking, it cannot proceed at all, and its sole remaining duty is
to state that it lacks jurisdiction and dismiss the case.

Steel

Co. v. Citizens for a Better Env’t., 523 U.S. 83, 94 (1998).

A

court lacks jurisdiction where Congress has validly deprived the
court of it.

See Hamdan v. Rumsfeld, 548 U.S. 557, 576-77 (2006).

Because Defendants raise a facial (as opposed to factual) challenge
to jurisdiction, the court must accept the complaint’s factual
allegations as true and afford the plaintiff the same procedural
protections as those for a Rule 12(b)(6) motion to dismiss, which
allows

consideration

complaint,

such

as

referenced therein.

of

only

certain

attachments

to

the

materials
complaint

outside

the

explicitly

Goldfarb v. Mayor & City Council of Balt.,

791 F.3d 500, 508 (4th Cir. 2015) (discussing documents the court
may consider beyond the complaint without converting the motion to
dismiss into one for summary judgment); see also Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009) (stating that a Rule
12(b)(1) non-movant receives the “same procedural protection as
she would receive” under Rule 12(b)(6) when a facial challenge is
raised).
As Defendants point out, Congress has expressly deprived the
federal courts of jurisdiction to review “any other decision or
action of [] the Secretary of Homeland Security the authority for
which is specified under this subchapter to be in the discretion
7

of

[]

the

Secretary

§ 1252(a)(2)(B)(ii).
however,

that

“an

of

Homeland

Subparagraph
appropriate

Security.”

(D)

of

court

the

of

8

same

U.S.C.

provides,

appeals”

retains

jurisdiction to review “constitutional claims or questions of
law.”

Id. § 1252(a)(2)(D); Gomis v. Holder, 571 F.3d 353, 358

(4th Cir. 2009) (limiting jurisdiction under subparagraph (D) to
“colorable constitutional claims”).
Statutorily, a fiancée visa classification may be granted to
the fiancée of a U.S. citizen “who seeks to enter the United States
solely

to”

admission.”

marry

“the

petitioner

within

8 U.S.C. § 1101(a)(15)(K)(i).

ninety

days

after

But a fiancée’s “visa

shall not be issued . . . until the consular officer has received
a petition filed in the United States by the fiancée or fiancé of
the applying alien and approved by the Secretary of Homeland
Security.”

8 U.S.C. § 1184(d)(1).

“The petition shall be in such

form and contain such information as the Secretary of Homeland
Security shall, by regulation, prescribe.”

Id.

Critically here, the petition “shall be approved only after
satisfactory evidence is submitted by the petitioner to establish
that the parties have previously met in person within 2 years
before the date of filing the petition,” among other requirements.
Id.

“[T]he Secretary of Homeland Security in his discretion may

waive the requirement that the parties have previously met in
person.”

Id. (emphasis added).

“As a matter of discretion, the
8

director may exempt the petitioner from [the two-year meeting]
requirement only if it is established that compliance would result
in extreme hardship to the petitioner or . . . violate strict and
long-established customs of the K–1 beneficiary’s foreign culture
or social practice . . . .”
added).

“Failure

to

8 C.F.R. § 214.2(k)(2) (emphasis

establish

that

the

petitioner

and

K–1

beneficiary have met within the required period or that compliance
with the requirement should be waived shall result in the denial
of the petition,” but the denial “shall be without prejudice to
the

filing

of

a

new

petition

once

beneficiary have met in person.”

the

petitioner

and

K–1

Id.

The laws governing Dr. Sarhan’s petition are clear that the
decision to waive the two-year meeting requirement rests within
the discretion of the Secretary.

8 U.S.C. § 1184(d)(1) (“the

Secretary of Homeland Security in his discretion may waive”); 8
C.F.R. § 214.2(k)(2) (“As a matter of discretion”).
Dr. Sarhan’s argument that 8 U.S.C. § 1252(a)(2)(B)(ii) only
applies to a revocation is contrary to the plain text of the
statute. While section 1252 is entitled “Judicial review of orders
of removal,” subsection (a)(2)(B)’s elimination of jurisdiction
applies “regardless of whether the judgment, decision, or action
is made in removal proceedings.”
(listing

exception

discretionary

not

decision

See 8 U.S.C. § 1252(a)(2)(B)(ii)

applicable
“under

this
9

here

and

subchapter,”

applying
i.e.,

to
the

subchapter that also includes 8 U.S.C. § 1184(d)); Lee v. U.S.
Citizenship & Immigr. Servs., 592 F.3d 612, 619 (4th Cir. 2010)
(“[A]lthough § 1252 generally

addresses

judicial

review

with

regard to final orders of removal, the language “regardless of
whether the judgment, decision, or action is made in removal
proceedings”
imposed

by

makes

clear

that

the

§ 1252(a)(2)(B) also

jurisdictional

apply

to

review

limitations
of

agency

decisions made outside of the removal context.”); Kucana v. Holder,
558 U.S. 233, 248 (2010) (listing numerous non-removal provisions
that are “shielded from court oversight by § 1252(a)(2)(B)(ii)”).
Accordingly, Congress has stripped this court of jurisdiction to
hear Dr. Sarhan’s claims as to the discretionary decision not to
waive

the

two-year

meeting

requirement.

8

U.S.C.

§ 1252(a)(2)(B)(ii); see also Sharif v. Chertoff, 497 F. Supp. 2d
928,

933

(N.D.

Ill.

2007)

(finding

lack

of

jurisdiction

for

discretionary decision under 8 U.S.C. § 1184(d) and collecting
similar cases).
The remaining question is whether § 1252(a)(2)(D)’s carveout for constitutional challenges and questions of law saves Dr.
Sarhan’s claim.

This provision requires Dr. Sarhan to raise any

constitutional or legal questions “upon a petition of review filed
with an appropriate court of appeals” — i.e., a circuit court of
appeals rather than this district court.

8 U.S.C. § 1252(a)(2)(D)

(emphasis added); Wilkinson v. Garland, 601 U.S. --, No. 22-666,
10

2024 WL 1160995, at *5 (Mar. 19, 2024) (“Section 1252(a)(2)(D)
provides that a court of appeals may consider final orders of
removal via petitions raising ‘constitutional claims or questions
of

law.’”

(emphasis

added)).

Put

another

way,

section

1252(a)(2)(D) does not provide a “jurisdictional bootstrap into
district court.”

Lee, 592 F.3d at 620 (additionally holding that,

unlike § 1252(a)(2)(B)’s jurisdiction strip, section 1252(a)(2)(D)
only applies in the context of removal proceedings); see also Chan
v. U.S. Citizenship & Immigr. Servs., 141 F. Supp. 3d 461, 468-68
(W.D.N.C. 2015) (finding no jurisdiction for district court to
review

constitutional

§ 1252(a)(2)(D)), aff’d

claims
sub

or

legal

nom. Roland

questions
v.

United

under
States

Citizenship & Immigr. Servs., 850 F.3d 625 (4th Cir. 2017). 3
Accordingly, the court lacks jurisdiction over Dr. Sarhan’s first
claim. 4

Rather than relying on § 1252(a)(2)(D)’s limitation to an “appropriate
court of appeals,” Defendants argued that there was no colorable
constitutional claim. (Doc. 31 at 12 (citing Gomis, 571 F.3d at 358).)
Though the court generally agrees with Defendants, as Dr. Sarhan himself
alleges that he was permitted to make an appeal statement and that AAO
heard his appeal and denied it on the merits, (Doc. 1 ¶¶ 43, 44; Doc.
1-3 (AAO Decision)), the court need not reach this issue, and indeed is
proscribed from doing so by 8 U.S.C. § 1252(a)(2)(B)(ii).
3

Dr. Sarhan alleges that Dibbins ignored the fact that he subsequently
met with Bennet twice in 2022. (Doc. 1 ¶ 45.) Though, as noted, the
court lacks jurisdiction to consider this claim, Dr. Sarhan does not
establish how the meetings comply with the requirement that they occur
in the period prior to the petition. 8 U.S.C. § 1184(d)(1).

4

11

2.

Claim Two

Dr. Sarhan’s second claim alleges that it is his “belief”
that Campagnola and Dibbins are “not being genuine about this
case,” and that application of 8 C.F.R. § 214.2(k) is “in excess
of statutory jurisdiction, authority and short of statutory right”
under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et
seq.

(Doc. 1 ¶¶ 55, 56.)

To the extent Dr. Sarhan challenges the

Secretary’s discretionary decision to deny the petition, the court
lacks subject matter jurisdiction for the reasons stated above.
Dr. Sarhan otherwise provides no argument, case citation, or
discussion as to his conclusory allusion to the APA for what
appears to be an argument that the cited regulation is ultra vires.
Although courts are admonished to avoid “drive-by jurisdictional
rulings” where there is a colorable federal controversy, Dr.
Sarhan’s mere bare-bones citation to the APA in the complaint,
without

any

other

support,

insubstantial and frivolous.”

renders

this

argument

“wholly

Holloway v. Pagan River Dockside

Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012) (suggesting court
lacks subject matter jurisdiction where claim is “made solely for
the

purpose

insubstantial

of
and

obtaining
frivolous

jurisdiction[]
that

an

or

is

invocation

so
of

wholly
federal

jurisdiction should not be recognized”); Steel Co., 523 U.S. at 89
(stating that a failure to state a federal claim can be the basis
of

a

Rule

12(b)(1)

motion

“only
12

when

the

claim

is

‘so

insubstantial, implausible, foreclosed by prior decisions of this
Court, or otherwise completely devoid of merit as not to involve
a federal controversy”).

Moreover, the APA does not afford an

implied grant of subject matter jurisdiction permitting judicial
review of agency action.

Califano v. Sanders, 430 U.S. 99, 105-

07 (1977); see also Lee, 592 F.3d at 618 (affirming district court
that rejected similar APA claim on jurisdictional grounds).
Thus, Dr. Sarhan has failed to demonstrate that the court has
jurisdiction to entertain this claim.
3.

Claims Three and Six

Defendants argue that claims three and six are moot because
any claim of unreasonable delay and unlawful withholding has been
obviated by USCIS’s denial decision.

(Doc. 31 at 16.)

Dr. Sarhan

responds with a conclusory rejection of Defendants’ argument.
(Doc. 33 at 6.)
“[T]he

doctrine

of mootness

constitutes

a

part

constitutional limits of federal court jurisdiction.”

of

the

United

States v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008) (internal
quotation marks and citations omitted).

“[A] case is moot when

the issues presented are no longer ‘live’ or the parties lack a
legally cognizable interest in the outcome.”
v. McCormack, 395 U.S. 486, 496 (1960)).

Id. (quoting Powell

A circumstance that may

moot a claim is when “the claimant receives the relief he or she
sought to obtain through the claim.”
13

Friedman’s, Inc. v. Dunlap,

290 F.3d 191, 197 (4th Cir. 2002).
To the extent that claims three and six seek a favorable
decision under the APA and All Writs Act, the court lacks subject
matter jurisdiction for the same reasons stated for claim one.

5

U.S.C. § 701(a)(1) (precluding jurisdiction under the APA where
other

“statutes

preclude

judicial

review”);

Block

v.

Cmty.

Nutrition Inst., 467 U.S. 340, 345-46 (1984). To the extent claims
three and six simply seek to compel a decision, such a claim is
moot, as Dr. Sarhan has alleged that the USCIS and AAO have
rendered decisions.

(Id. ¶¶ 41, 43); Mohammed v. Holder, 695 F.

Supp. 2d 284, 289 (E.D. Va. 2010) (mooting claim for mandamus
relief where agency already rendered decision). 5
4.

Claims Four and Five

Defendants argue that claims four and five should be dismissed
for lack of subject matter jurisdiction because Dr. Sarhan did not
comply with the prerequisites to qualify for the FTCA’s waiver of
sovereign immunity, namely presentment of the claim to the agency
before

filing

suit.

(Doc.

31

at

18);

(providing for presentment pre-requisite).

28

U.S.C.

§

2675(a)

Dr. Sarhan responds

that he sent a notice of intent to sue on December 12, 2021, (Doc.
33-3), and received a receipt on December 28, 2021.

(Doc. 33 at

Dr. Sarhan’s prayer for relief seeks mandamus relief against the State
Department. (Doc. 1 ¶ 84.) The State Department is not a named defendant
in this case, but the court has construed this request as one against
the named Defendants. In any event, the outcome is the same.
5

14

6.)

Defendants replied that this notice does not constitute

presentment under the FTCA and, even if it did, it fails to specify
the required “sum certain.”

(Doc. 35 at 4 (citing 28 C.F.R.

§ 14.2(a)).)
The FTCA provides jurisdiction to district courts for “claims
against the United States, for money damages, [] for injury or
loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the
Government

while

acting

within

the

scope

of

his

office

or

employment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.”
U.S.C. § 1346(b)(1).

“[T]he underlying cause of action in an FTCA

claim is derived from the applicable state law.”
at 194.

28

Kerns, 585 F.3d

In other words, an FTCA action “may only be maintained if

the Government would be liable as an individual under the law of
the state where the negligent act occurred.”

Id.

In his fourth claim for relief, Dr. Sarhan alleges that
“churning” — i.e., his description of USCIS’s funding through
denials of applications that necessitate multiple filings — is
“illegal and unethical” and states that it is “punishable by heavy
fines and why [he] is filing a Federal Tort Claim [i.e., claim
five].”

(Doc. 1 ¶ 71.)

He does not, however, cite any federal or

state law giving rise to such a claim.
15

That failure means he does

not raise a colorable federal question, and the court therefore
lacks subject matter jurisdiction.

Holloway, 669 F.3d at 452.

Instead, the court considers these arguments under his fifth claim
brought pursuant to the FTCA.
In his fifth claim, Dr. Sarhan appears to seek money damages
from two individual federal officers whom he has sued in their
respective official capacities.

(Doc. 1 ¶ 76.)

From the face of

the complaint, it is unclear what underlying substantive tort, if
any, Dr. Sarhan alleges.

He alleges that Campagnola and Dibbins

“intentionally denied” his fiancée’s visa “for churning fees,” and
“intentionally,

maliciously

and

with

long

delays”

denied

his

fiancée’s visa without giving a chance to respond, which he alleges
is a violation of due process.

(Id. ¶ 75.)

He also refers to

negligence, emotional distress, and loneliness, which could be
liberally construed as raising a state common law tort claim. (Id.
¶¶ 74, 77.)
In any event, no construction of the claim against any named
Defendant would give rise to subject matter jurisdiction.

To be

sure, although Defendants do not note it, the court would not have
jurisdiction for a constitutional tort claim against Campagnola
and Dibbins (or Director Jaddou or Secretary Mayorkas, for that
matter) because a Bivens 6 action cannot lie against individual

6

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403

16

federal officers sued in their official capacities.

Doe v. Chao,

306 F.3d 170, 184 (4th Cir. 2002) (“[A] Bivens action does not lie
against

[]

removed)).

officials

in

their

official

capacity.”

(emphasis

Nor would the court have jurisdiction if the complaint

were construed to allege a common law tort because the FTCA
precludes any civil action for money damages against a federal
employee that could be brought against the United States under 28
U.S.C.

§ 1346(b),

such

as

a

common

law

tort.

28

U.S.C.

§ 2679(b)(1); see, e.g., Boles v. United States, 3 F. Supp. 3d
491, 505-512 (M.D.N.C. 2014) (permitting claims of negligence and
negligence per se under FTCA against the United States).
The court would also lack jurisdiction if it construed Dr.
Sarhan’s claim to be against USCIS or DHS 7 — i.e., the agencies
sued in this action.

The FTCA waives the jurisdictional bar of

sovereign immunity for claims “against the United States.”
U.S.C. § 1346(b).

28

However, “[t]he authority of any federal agency

to [] be sued in its own name shall not be construed to authorize
suits against such federal agency on claims which are cognizable
under section 1346(b) of this title[.]”

28 U.S.C. § 2679(a).

In

U.S. 388 (1971).
Though Dr. Sarhan sues Secretary Mayorkas in his official capacity,
official capacity suits “generally represent only another way of pleading
an action against an entity of which an officer is an agent.” Hafer v.
Melo, 502 U.S. 21, 25 (1991) (internal quotation marks and citation
omitted). Accordingly, the court considers Dr. Sarhan’s allegations as
having been made against DHS as well.
7

17

other words, where, as here, federal agencies, rather than the
United States, are sued in their own name, § 2679(a) bars a claim
that is cognizable under § 1346(b).

F.D.I.C. v. Meyer, 510 U.S.

471, 476 (1994).
If the complaint were construed as raising a state common law
tort claim against USCIS or DHS for “negligen[ce],” “emotional
distress,” and “loneliness,” (Doc. 1 ¶¶ 74, 77), the claim would
be cognizable under § 1346(b).

Meyer, 510 U.S. at 476 (describing

claims brought under the “law of the State” as cognizable under
§ 1346(b)).

Consequently, a state common law tort claim against

the agency would be barred by § 2679(a).

Id.

If, however, the court were to construe Dr. Sarhan’s claim to
allege a constitutional tort against USCIS or DHS because of the
reference

to

“due

process,”

cognizable under § 1346(b).
that

constitutional

tort

(Doc.

1

¶ 75),

it

would

not

be

Meyer, 510 U.S. at 477-78 (explaining
claims

can

never

be

the

source

of

substantive liability under § 1346(b) because the “law of the
place” means “law of the State”).

The court would still lack

jurisdiction, but for a different reason than for a common law
tort claim: the Supreme Court has made it clear that a federal
court would not have jurisdiction to hear a constitutional tort
claim against a federal agency because the claim would be an
impermissible Bivens action against a federal agency.

Id. at 486

(rejecting Bivens claim against agency, even where Congress had
18

enacted a “sue and be sued” provision independent of the FTCA);
see also Ziglar v. Abbasi, 582 U.S. 120, 121 (2017) (stating that
extending Bivens is a “disfavored judicial activity” (internal
quotation marks omitted)); Egbert v. Boule, 596 U.S. 482, 486
(2022) (“[O]ur cases have made clear that, in all but the most
unusual circumstances, prescribing a cause of action is a job for
Congress, not the courts.”).
Having reached these conclusions, the court need not consider
whether leave to amend should be granted to permit naming the
United States as a defendant because such an amendment would be
futile.

HCMF Corp. v. Allen, 238 F.3d 273, 276 (4th Cir. 2001)

(stating that leave to amend should be denied where amendment would
be futile).

The waiver of sovereign immunity, and consequently

the right to sue the United States in tort, exists entirely by
consent as expressed in the FTCA, which fixes the terms and
conditions upon which suit may be instituted.
592 U.S. 209, 212 (2021).

Brownback v. King,

The conditions of the waiver of

sovereign immunity define the subject matter jurisdiction of the
federal courts and must be strictly construed.

McMahon v. United

States, 342 U.S. 25, 27 (1951).
A plaintiff seeking money damages from the United States for
the negligence or wrongful act or omission of a governmental
employee in his official capacity must “first present[] the claim
to the appropriate Federal agency and his claim shall have been
19

finally denied by the agency in writing and sent by certified or
registered mail.”

28 U.S.C. § 2675(a).

An “[a]ction under this

section shall not be instituted for any sum in excess of the amount
of the claim presented to the federal agency.”

Id. § 2675(b).

A claim is presented
when a Federal agency receives from a claimant, his duly
authorized agent or legal representative, an executed
Standard Form 95 or other written notification of an
incident, accompanied by a claim for money damages in a
sum certain for injury to or loss of property, personal
injury, or death alleged to have occurred by reason of
the incident; and the title or legal capacity of the
person signing, and is accompanied by evidence of his
authority to present a claim on behalf of the claimant
as agent, executor, administrator, parent, guardian, or
other representative.
28 C.F.R. § 14.2(a) (emphasis added).
“Requesting a sum certain is a necessary element of any FTCA
administrative claim.”
275,

278

(4th

Cir.

Kokotis v. U.S. Postal Serv., 223 F.3d

2000).

The

sum

certain

requirement

is

jurisdictional and cannot be waived. Est. of Van Emburgh v. United
States, -- F.4th --, 2024 WL 1061791, at *4, *9 (Mar. 12, 2024)
(citing McNeil v. United States, 508 U.S. 106, 111-13 (1993))
(affirming dismissal on jurisdictional grounds of plaintiff who
did not present a sum certain); Plyler v. United States, 900 F.2d
41, 42 (4th Cir. 1990) (citing Henderson v. United States, 785
F.2d 121, 123 (4th Cir. 1986)); Kokotis, 233 F.3d at 278-79 (citing
Ahmed v. United States, 30 F.3d 514 (4th Cir. 1994)) (“Failure to
request a sum certain within the statute of limitations deprives
20

a district court of jurisdiction over any subsequently filed FTCA
suit.”).

As the Fourth Circuit has explained, “[t]he sum certain

requirement is not a trap for the unwary. Rather, this requirement
allows an agency to assess a claim’s settlement value.”

Kokotis,

233 F.3d at 279.
Even assuming that Dr. Sarhan’s letter is an “other written
notification of an incident,” 28 C.F.R. § 14.2(a), Dr. Sarhan
plainly failed to accompany the claim with a sum certain.
Doc. 33-3 (omitting sum).)

(See

Accordingly, because he failed to

comply with this requirement, the court lacks subject matter
jurisdiction over the fifth claim, even if it were to be amended
as described above. Kokotis, 223 F.3d at 278-79; Randhawa v. Dep’t
of Homeland Sec., No. 22-CV-3291, 2024 WL 578957, at *3 (D.D.C.
Feb. 13, 2024) (preemptively rejecting possibility of amending
complaint where plaintiff did not name the United States because
amendment would be futile); Bustos v. Chamberlain, 2009 WL 2782238,
at *2 (noting that liberal construction of a pro se plaintiff’s
filing does not require the court to ignore clear pleading defects
in it).
In sum, the court lacks subject matter jurisdiction over
claims four and five. 8
Dr. Sarhan argues in his responsive briefing that Defendants have
committed a fraud on the court and cites to Federal Rule of Civil
Procedure 60. (Doc. 33 at 7.) This is plainly improperly raised. Fed.
R. Civ. 60(b) (requiring motion under rule “after the entry of the
judgment or order”). Such contentions are also meritless.
8

21

B.

Remaining Motions and Objections to Recommendation

Dr. Sarhan has also moved for preliminary relief to issue
Bennet a visa.

(Doc. 22, 34.)

The magistrate judge issued a

memorandum opinion and recommendation that the court deny the
motions.

(Doc. 36.)

remain pending.

Dr. Sarhan then filed objections, which

(Docs. 38, 41.)

Principally, Dr. Sarhan objects

that the recommendation does not adequately consider whether he is
likely to suffer irreparable harm if preliminary relief is not
granted.

(Doc. 38 at 12.)

Dr. Sarhan has also filed a motion to

disqualify the magistrate judge, where he chiefly reiterates his
objections to the recommended ruling.

(Doc. 39 at 4-9 (discussing

magistrate judge’s analysis of Winter factors for preliminary
relief).)

Because the court lacks subject matter jurisdiction

over this matter, these motions and objections are properly denied
as moot.

Steel Co., 523 U.S. at 94.

However, the court is compelled to address Dr. Sarhan’s
baseless and scurrilous allegations against the magistrate judge.
In response to his having received an adverse decision from the
magistrate judge, Dr. Sarhan moves to disqualify him by charging
that the judge is “dishonest” and “biased” and has “commit[ed]
fraud

on

the

court

and

tried

to

deceive

the

Plaintiff”

by

purposefully refusing to address Dr. Sarhan’s claim that he is

22

suffering irreparable harm.

(Doc. 39 at 1-2.) 9 Dr. Sarhan attacks

the magistrate judge’s memorandum opinion and recommendation as
“fraudulent and biased” and charges that the magistrate judge “is
intentionally

dragging

“delaying tactics.”

out

his

disqualification”

by

using

(Doc. 42.)

Such personal attacks on the integrity of the magistrate judge
will not be tolerated.

The fact that a litigant proceeds pro se

is not license to spew invective when the court rules adversely to
his requests.

It is a “time honored notion that the law and the

courts of the United States are important parts of American society
worthy of respect.”
Cir.

1978)

Theriault v. Silber, 579 F.2d 302, 303 (5th

(dismissing

appeal

with

prejudice

insulting references to the trial judge”).

for

“vile

and

Litigants are entitled

to disagree with a court’s decision, and no doubt courts make
mistakes.

But litigants must conduct themselves uprightly with

respect for the judicial process, even when they disagree with a
ruling.

Cases are to be argued on their merits, and they will be

Dr. Sarhan’s complaints stem from a fundamental misunderstanding of
the law. The magistrate judge properly concluded that he need not reach
the issue of Dr. Sarhan’s contention of irreparable harm because Dr.
Sarhan’s request for injunctive relief failed on the requirement that
he show a likelihood of success on the merits. Absent that showing, the
court need not address the remaining elements of the injunction test.
Dr. Sarhan’s argument that each preliminary injunction factor “must be
articulated” refers only to the fact that a plaintiff must satisfy each
one, see Pashby v. Delia, 709 F.3d 307, 320 (4th Cir. 2013), which the
magistrate judge here found Dr. Sarhan failed to do. Consequently, Dr.
Sarhan’s frustrations are misplaced and based on a misunderstanding of
the law.
9

23

decided on their merits.

Attacking a judicial officer — here the

United States magistrate judge — is wholly unacceptable.

Dr.

Sarhan is warned against further personal attacks on the magistrate
judge or any judicial officer of the federal courts.

The court

may exercise its inherent power over litigants who abuse their
right to appear in such a fashion if repeated conduct occurs,
including the right to impose sanctions.

Roadway Exp., Inc. v.

Piper, 447 U.S. 752, 765 (1980) (noting the court’s power to issue
contempt sanctions to maintain the authority and dignity of the
court). 10
III. CONCLUSION
For the reasons stated, therefore,
IT IS ORDERED that Defendants’ motion to dismiss (Doc. 30) is
GRANTED and the complaint is DISMISSED WITHOUT PREJUDICE; and
IT

IS

preliminary

FURTHER
relief

ORDERED
(Doc.

22,

that
34),

Dr.

Sarhan’s

motion

to

motions

for

disqualify

the

magistrate judge (Doc. 39), and objections to the magistrate
judge’s memorandum order and recommendation (Docs. 38, 41) are all
DENIED as MOOT.
/s/
Thomas D. Schroeder
United States District Judge

March 26, 2024

To the extent Dr. Sarhan expresses frustration with the Nation’s
implementation of its immigration laws (Doc. 39 at 7), his concerns raise
political, not judicial, issues.

10

24