EDWARD G. SMITH, District Judge.
An inmate in the Philadelphia Prison System has filed an "expatriation petition" in which he seeks to renounce his United States citizenship. The respondent has moved to have the court dismiss the petition because the petitioner failed to comply with the applicable statute and administrative procedures insofar as he failed to file a renunciation request with the appropriate federal agency. The petitioner responded to the motion by filing two motions in which he seeks to have the court enter a default judgment against the respondent.
As discussed in more detail below, the court will grant the motion to dismiss because the petitioner has improperly attempted to avoid the proper procedure for renouncing citizenship by filing this action in federal court. Instead of filing this action, the petitioner could only submit his renunciation request to the United States Citizenship and Immigration Services, which was the appropriate federal agency to consider the petition in the first instance. In addition, because the petitioner has yet to seek relief with the appropriate federal agency, he cannot maintain a claim under the Administrative Procedure Act or seek mandamus relief. Concerning the petitioner's motions for default judgment, the petitioner has asserted no cognizable basis that would justify granting those motions in his favor. Therefore, the court will also deny both motions.
The pro se petitioner, Toleksis Biin Tutora ("Tutora"), commenced this action by filing a purported application to proceed in forma pauperis and an "Expatriation Petition" that the Clerk of Court docketed on October 5, 2016. Doc. No. 1. The petition names the United States Attorney General for the Eastern District of Pennsylvania as the respondent. Id.
In the petition, Tutora alleges that he is currently detained in the Philadelphia Prison System and is "also a probationer of the Lehigh Adult Parole/Probation Department."
In further support of his petition, Tutora avers as follows:
Id. at ECF pp. 2-3.
Because Tutora did not pay the filing fee for miscellaneous actions or file a completed motion for leave to proceed informa pauperis, the court entered an order on November 2, 2016, which required him to either pay the filing fee or file a proper application to proceed in forma pauperis. Order, Doc. No. 2. In response to the court's order, Tutora filed a "Declaration and Explanation in Support of Motion to Proceed in Forma Pauperis" that the clerk of court docketed on November 21, 2016. Doc. No. 3. As this submission was also insufficient for the court to evaluate whether to grant Tutora leave to proceed in forma pauperis, the court entered another order on November 28, 2016, requiring him to either pay the filing fee or submit a completed in forma pauperis application with the requisite certified prisoner account statement. Order, Doc. No. 4.
Instead of reapplying for leave to proceed informa pauperis, Tutora paid the filing fee on January 3, 2017. See Unnumbered Docket Entry Between Doc. Nos. 4 and 5. Shortly thereafter, the court entered an order requiring the Clerk of Court to serve a copy of the order and the expatriation petition on the respondent by certified mail. Order, Doc. No. 5.
The respondent moved for an extension of time to file a response to the petition, which the court granted on January 26, 2017. Doc. Nos. 6, 7. The respondent then filed the instant motion to dismiss the petition under Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure on February 22, 2017. Doc. No. 10. Although Tutora did not file a timely response to the motion to dismiss, he did file two documents that the clerk of court docketed on March 22, 2017: a "Motion for Default Judgment" and a "Motion Sustaining Default Motion." Doc. Nos. 11, 12.
The motion to dismiss is ripe for disposition.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a party to move for dismissal of a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests "the sufficiency of the allegations contained in the complaint." Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (citation omitted). As the moving party, "[t]he defendant bears the burden of showing that no claim has been presented." Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citation omitted).
In general, a complaint is legally sufficient if it contains "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "The touchstone of [this] pleading standard is plausibility." Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). Although Rule 8(a)(2) does "not require heightened fact pleading of specifics," it does require the recitation of "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Thus, to survive dismissal, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). This "plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 570). Thus, "[a] pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.'"
The Third Circuit employs a three-step approach to evaluate whether a complaint satisfies the Twombly/Iqbal standard:
Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (internal footnote omitted).
"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)). "They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Id. (citations omitted). "[F]ederal courts are without power to adjudicate the substantive claims in a lawsuit, absent a firm bedrock of jurisdiction." Carlsberg Res. Corp. v. Cambria Sav. & Loan Ass'n, 554 F.2d 1254, 1256 (3d Cir. 1977). Therefore, "[w]hen the foundation of federal authority is, in a particular instance, open to question, it is incumbent upon the courts to resolve such doubts, one way or the other, before proceeding to a disposition of the merits." Id.
"[A] court must grant a motion to dismiss [under Rule 12(b)(1)] if it lacks subject-matter jurisdiction to hear a claim." In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012). "In evaluating a Rule 12(b)(l) motion, a court must first determine whether the movant presents a facial or factual attack." Id. (citation omitted). A jurisdictional challenge is factual if "it concerns not an alleged pleading deficiency, but rather the actual failure of [the plaintiffs] claims to comport with the jurisdictional prerequisites[.]" US. ex rel. Atkinson v. Pennsylvania Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007) (quotation marks and citation omitted). A jurisdictional challenge is facial if it "challenges subject matter jurisdiction without disputing the facts alleged in the complaint, and it requires the court to consider the allegations of the complaint as true." Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016) (citations and internal quotation marks omitted). On the other hand, "a factual challenge attacks the factual allegations underlying the complaint's assertion of jurisdiction, either through the filing of an answer or `otherwise presenting] competing facts.'" Id (quoting Constitution Party of Pa. v. Achiele, 757 F.3d 347, 358 (3d Cir. 2014)). When a jurisdictional challenge is factual, a court may "weigh and consider evidence outside the pleadings." Id. (citation and internal quotation marks omitted).
In the motion to dismiss, the respondent claims that the court should dismiss the petition because (1) Tutora has failed to seek to renounce his citizenship by submitting a request before the competent administrative agency, namely the United States Citizenship and Immigration Services ("USCIS"), (2) Tutora has not alleged that he submitted a petition to renounce to any agency, including USCIS, the Department of Homeland Security, or the Department of State, (3) the court cannot grant Tutora's request and is otherwise without jurisdiction to remove Tutora to the foreign country of his choice, (4) Tutora has no cause of action under the Administrative Procedures Act because he has not sought any administrative action insofar as he has yet to seek renunciation of United States' citizenship from USCIS and, thus, there has been no agency action unlawfully withheld and no final agency action for the court to review, and (5) Tutora has failed to exhaust his administrative remedies because he has failed to submit a request with USCIS. See Defendant's Mem. of Law in Supp. of Mot. to Dismiss the Compl. Under Fed. R. Civ. P. 12(b)(l) and 12(b)(6) ("Def.'s Mem.") at 4-8, Doc. No. 10. It appears that in response to the motion to dismiss, Tutora filed the above-referenced motions seemingly pertaining to a default judgment.
With respect to these motions, it appears that in his "Motion for Default Judgment," Tutora claims, without explanation, that the respondent's filing of the motion to dismiss violated his constitutional rights. See Motion for Default J. at 1 (stating that "[cjontrary to Fact of Law, the Plaintiffs 5th and 14th amendment and constitution [sic] rights were intentionally violate [sic]" by counsel for respondent filing a motion to dismiss), Doc. No. 11. He seems to argue that upon receipt of his petition, the respondent would "give
In his "Motion Sustaining Default Motion," Tutora appears to provide additional guidance regarding the purpose of his expatriation petition. In this document, Tutora indicates that he did not intend for the petition to be construed as a complaint; instead, "[h]is intent was by Law [sic] pursuant [to] title 8 section 1481 subsections [sic] (a)(6) for the respondent to properly route his request for a
Id. at 2-3 (emphasis in original).
Although unclear from his initial expatriation petition, the two above-reference motions evidence Tutora's intent that this petition serve as his request to renounce under 8 U.S.C. § 1481(a)(6) and that somehow this action is the vehicle by which he can achieve his goal of renunciation. Tutora is mistaken.
Congress recognized a right to expatriate in the Expatriation Act of 1868, which "declared that expatriation was the natural and inherent right of all people." Klaud.t v. Dooley, No. CIV. A. 10-4091-KES, 2010 WL 5391571, at *4 (D.S.D. Dec. 22, 2010) (citing An Act Concerning the Rights of American Citizens in Foreign States, ch. 249, 15 Stat. 223 (1868)). "`The stated purpose of the Act was to protect naturalized citizens of the United States while in foreign jurisdictions!" Id. (quoting People v. Jones, 140 P.3d 325, 327 (Colo. App. 2006)). The Expatriation Act did not "provide rights to someone who has renounced his United States citizenship; rather, it [wa]s intended to provide protections for naturalized American citizens abroad" Id. Since the passage of the Expatriation Act, the Supreme Court has acknowledged that "a citizen has the right to abandon or renounce his citizenship and Congress can enact measures to regulate and affirm such abjuration."
Through the Immigration and Nationality Act, 8 U.S.C. § 1481, Congress has set forth certain procedures for voluntary expatriation. See 8 U.S.C. § 1481(a)(1)-(7). More specifically, section 1481 provides that a United States national "shall lose his nationality by voluntarily performing" one of seven expatriating acts "with the intention of relinquishing United States Nationality." 8 U.S.C. § 1481(a). The first five of the seven expatriating procedures are inapplicable here because they require the individual seeking renunciation to be located in a foreign state and Tutora is located in Pennsylvania. See 8 U.S.C. § 1481(a)(1)-(5). Thus, only subsections (a)(6) and (a)(7) are potentially applicable.
Subsection (a)(7) is inapplicable because it requires the person to have "committ[ed] arry act of ireason against, . . . attempted by force to overthrow, or bearjed] arms against]] the United Stales." 8 U.S.C. § 1481(a)(7). Therefore, only the sixth procedure is potentially applicable here, it provides that the person seeking to renounce United Stales citizenship must make
8 U.S.C. § 1481(a)(6).
Here, despite Tutora's apparent claim that he can bring an expatriation petition before this court and get the relief he seeks, he has failed to state a claim upon which relief can be granted for the following reasons:
In addition, Tutora has not alleged that he has submitted a renunciation request to the Director of USCIS or, if he had, that USCIS failed to respond to his request or otherwise prevented him from renouncing his citizenship. These failures preclude this action in federal court. See Evans v. United States, No. CIV. A. 12-677, 2012 WL 569705, at *1 (E.D. Pa. Feb. 22, 2012) (concluding pro se plaintiff failed to state claim against the United States where he attempted to "seek a ruling from this Court in the first instance" on his request to renounce his citizenship instead of making the request before USCIS in the first instance); Walker v. Holder, 714 F.Supp.2d 44, 48 (D.D.C. 2010) ("In the absence of a request obligating the defendant agencies to act, the Court finds that the complaint fails to state a claim upon which relief can be granted under the [Administrative Procedure Act], the mandamus statute or the Declaratory Judgment Act.").
Second, Tutora's submissions clarify that he is seeking to have the court direct agency action by having his renunciation petition directed to the proper governmental official, whom would then grant him a renunciation ceremony. Essentially, it appears that Tutora is seeking mandamus relief.
To the extent that Tutora is seeking mandamus relief, "district courts . . . have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or an agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. Tutora is entitled to relief under section 1361 "only if he has exhausted all other avenues of relief and only if the defendant owes him a clear, nondiscretionary duty." Heckler v. Ringer, 466 U.S. 602, 616 (1984). Tutora "must allege that an officer of the Government owes him a legal duty which is a specific, plain ministerial act `devoid of the exercise of judgment or discretion.' An act is ministerial only when its performance is positively commanded and so plainly prescribed as to be free from doubt." Harmon Cove Condo. Ass'n, Inc. v. Marsh, 815 F.2d 949, 951 (3d Cir. 1987) (quoting Richardson v. United States, 465 F.2d 844, 849 (3d Cir. 1972) (en banc), rev'd on other grounds, 418 U.S. 166 (1974)).
As already explained, Tutora has not alleged that he exhausted his administrative remedies by submitting his request to renounce his United States citizenship to the Director of USCIS. Additionally, it appears that even if Tutora had exhausted his administrative remedies, the only relief he would be entitled to would be for the government to respond to his renunciation request. See Kwok Sze, 172 F. Supp. 3d at 119 ("[C]ourts have frequently held that the only ministerial duty owed by USCIS under [s]ubsection (a)(6) is to respond to the renunciant's request." (citing Turner, 5 F. Supp. 3d at 119; Sluss v. United States Citizenship
Finally, as already indicated, Tutora has not alleged that he has requested to renounce his citizenship from USCIS. Thus, to the extent that Tutora is attempting to bring a claim under the Administrative Procedure Act ("APA"), he has failed to state a claim.
In this regard, "[t]he APA . . . waives federal sovereign immunity in certain circumstances to allow equitable relief from agency action or inaction." American Disabled for Attendant Programs Today v. United States Dep't of Housing and Urban Dev., 170 F.3d 381, 383 (3d Cir. 1999). The APA permits a lawsuit by "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. § 702. "Agency action" includes "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act[.]" 5 U.S.C. § 551(13).
Courts
American Disabledfor Attendant Programs Today, 170 F.3d at 383-84.
With respect to claims that agency action has been "unlawfully withheld or unreasonably delayed," a complaining party must "assert[] that an agency failed to take a discrete agency action that it is required to take." Norton v. Southern Utah Wilderness All, 542 U.S. 55, 64 (2004) (emphasis in original). Here, Tutora has failed to allege that the USCIS or the current respondent failed to take any action insofar as he has not alleged that he attempted to submit a renunciation request before filing the instant petition. Therefore, he has failed to assert a claim under section 706(1)
A district court should generally provide a pro se plaintiff (or petitioner) with leave to amend unless an amendment would be inequitable or futile. See Grayson v. Mayview St. Hosp., 293 F.3d 103, 114 (3d Cir. 2002). Here, Tutora has failed to name the proper respondent and has improperly attempted to renounce his United States citizenship by filing this petition here in the first instance. The only reason why the court would grant Tutora leave to amend his petition is to allow Tutora to possibly allege that he submitted his request to the USCIS and the USCIS has refused to act on the petition, but it is evident from his responses to the motion to dismiss that Tutora has not submitted a request to the USCIS and is attempting to use this action as a vehicle to do so. Therefore, the court finds that granting leave to amend would be futile.
Tutora has filed two motions for default judgment seemingly on the premise that the respondent improperly responded to his expatriation petition by filing a motion to dismiss instead of either forwarding his petition to the proper government officials or otherwise moving toward granting him a renunciation ceremony. Even if Tutora had properly moved for the entry of default under the Federal Rules of Civil Procedure (which he has not), he has not asserted any cognizable basis that would warrant the entry of a default judgment in this case. Accordingly, the court will deny Tutora's motions for a default judgment.
As explained above, Tutora has brought this expatriation petition seemingly in an attempt to evade the administrative processes attendant to a United States citizen's request to renounce his or her citizenship under 8 U.S.C. § 1481(a)(6). Only USCIS, in the first instance, may consider such a request and Tutora has not alleged that he has filed such a request with USdS or that USCIS has denied his request to renounce his United States citizenship. It is also apparent from Tutora's submissions in response to the respondent's motion to dismiss that he has not filed any such request to date and does not believe that he has to do so (in part because he has filed this action). Because Tutora is proceeding pro se, the court has liberally interpreted the petition to conceive of any claim that Tutora could maintain here. It appears that there is no such claim and, as such, Tutora has failed to state a claim upon which relief could be granted. See, e.g., Walker v. Holder, 714 F.Supp.2d 44, 47-48 (D.D.C. 2010) (granting defendants' motion to dismiss under Rule 12(b)(6) because the plaintiff agreed that even though he wrote to the defendants to inquire "about the renunciation process, . . . he has not alleged that he applied to Homeland Security or DOJ to renounce his citizenship and was denied"). Accordingly, the court will dismiss the expatriation petition with prejudice. Tutora may still proceed to submit his renunciation request to USCIS in the first instance.
Id.
In addition, the second sentence of subsection (b) provides for a rebuttable presumption that anyone who committed any of the seven expatriating acts in subsection (a) did so voluntarily. See id. ("Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily."). Tutora has not alleged that he has completed any of the expatriating acts in subsection (a), so the second sentence of subsection (b) is also inapplicable here.
KwokSze v. Johnson, 172 F.Supp.3d 112, 115-16 (D.D.C. 2016) (internal record citations omitted), aff'd sub nom., Kwok Sze v. Kelly, No. 16-5090 (D.D.C. 2017).
Many courts that have addressed actions brought under subsection (a)(6) have determined that prisoners are unable to perform the acts necessary to renounce their citizenship. See, e.g., Keene, 2016 WL 2343250, at * 3 ("Plaintiff is prevented by his incarceration from meeting the additional statutory requirement that he make a personal appearance before an Attorney General designee."); Frazier v. United States Citizenship and Immigration Servs., No. 12-cv-14533, 2012 WL 5392317, at *1 (E.D. Mich. Nov. 5, 2012) ("Plaintiff has lost his right to renounce his citizenship while he is incarcerated. Until he has served his sentence, he will not be free to perform those acts needed to renounce his citizenship."); Bradfordv. LeBlanc, No. 12-0427-BAJ-DLD, 2012 WL 5364255, at *2 (M.D. La. Sept. 19, 2012) ("[C]onsidering the plaintiffs current state of incarceration, it does not appear that he has the capacity to renounce his citizenship under 8 U.S.C. § 1481(a)."), R. & R. adopted by, 2012 WL 5364262 (M.D. La. Oct. 31, 2012); Hoodv. United States, No. 2:11CV334-WKW, 2011 WL 6440511, at *l (M.D. Ala. Dec. 2, 2011) (determining that prisoner plaintiff could not formally renounce his citizenship while he was incarcerated); Persson v. United States Dep't of State, No. ED CV-11-0377-GAF (PJW), 2011 WL 1464387, at*2 (C.D. Cal. Mar. 22, 2011) ("There is no way for Plaintiff to formally renounce his citizenship while he is incarcerated in the United States and he does not have the right to travel to another country while he is incarcerated in order to renounce his citizenship."); Koos v. Holm, 204 F.Supp.2d 1099, 1108 (W.D. Tenn. 2002) (explaining that "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system" and that "[a]s [the plaintiff] is a prisoner at this time, he may not exercise [the] right" to renounce his citizenship under section 1481" (citations and internal quotation marks omitted)); see also Turner, 5 F. Supp. 3d at 119-20 (noting that DHS had responded to the plaintiff prisoner's renunciation request by indicating that it denied the request because he could not appear for an in-person interview at a USCIS office, and determining that because the government agreed to hold open the plaintiffs case until his release from prison, the plaintiffs request for mandamus relief was moot); Duncan v. United States Dep `t of State, No. 7:08-cv-00564, 2008 WL 4821323, *2 (W.D. Va. Oct. 30, 2008) ("Moreover, courts have uniformly held that an incarcerated citizen has no right to compel governmental officials to transport him out of the country in order to facilitate his renunciation of citizenship."). Therefore, it does not appear that Tutora will be able to formally renounce his citizenship under section 1481 until he has completed his term of incarceration.
