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Frederick v. Hillyer

United States District Court, D. Columbia.

March 11, 2015

RICHARD FREDERICK, Plaintiff,
v.
ANDREA HILLYER, et al., Defendants

For UNITED STATES FOR THE USE OF RICHARD FREDERICK, Plaintiff: Brady Cronon Toensing, LEAD ATTORNEY, David Bryan Kluck, Joseph E. DiGenova, DIGENOVA & TOENSING, LLP, Washington, DC; Victoria Toensing , LEAD ATTORNEY, DIGENOVA & TOENSING, Washington, DC.

For UNITED STATES OF AMERICA, 2255: Brant S. Levine, LEAD ATTORNEY, UNITED STATES DEPARTMENT OF JUSTICE, Constitutional and Specialized Torts, Washington, DC.

For SUSAN CHAINER, Defendant: Matthew D. Foster, LEAD ATTORNEY, PEPPER HAMILTON LLP, Washington, DC; Derek E. Hines, Gregory A. Paw, Louis J. Freeh, PRO HAC VICE, PEPPER HAMILTON LLP, Philadelphia, PA.

MEMORANDUM OPINION

Plaintiff Richard Frederick is a citizen of St. Lucia and a member of the St. Lucian parliament. He brings claims against American consular officials, a retired FBI employee, and a St. Lucian security officer arising out of an alleged conspiracy to revoke his visas to travel to the United States. Plaintiff bases his claims on a private right of action embodied in recently repealed regulations authorized by a statute repealed decades ago.

Pending before the Court are two dispositive motions challenging Counts I, II, and III of Plaintiff's First Amended Complaint.[1] The first motion was filed by the United States, and is captioned Statement of Interest, Motion to Substitute Itself as a Defendant, and Motion to Dismiss the Complaint (the " Government's Motion" ). The Government's Motion relates to Defendants Andrea Hillyer and Eugene Sweeney. The other motion is Defendant Susan Chainer's Motion to Dismiss the Complaint

The Government's Motion argues that no law authorizes Frederick's suit and it therefore must be dismissed for failure to state a claim, or in the alternative, that the United States must be substituted for Hillyer and Sweeney and the claims against it must then be dismissed for failure to exhaust administrative remedies and because Frederick's claim arose in a foreign country. Chainer seeks dismissal of Frederick's claims against her for failure to state a claim, lack of personal jurisdiction, and improper venue. For the following reasons, the Court finds that it lacks subject matter jurisdiction to consider Counts I, II, and III and dismisses those Counts. Pursuant to 28 U.S.C. § 1367(c)(3), the Court declines to exercise supplemental jurisdiction over Frederick's remaining Counts IV and V and those counts are dismissed without prejudice.

I. LEGAL STANDARD

Defendants have styled and briefed their motions as made under Rule 12(b)(6) for failure to state a claim. Because the Government's motion argues that there is no federal cause of action authorizing Plaintiff's claim, it is more appropriately considered as a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). A court has federal question subject matter jurisdiction pursuant to 28 U.S.C. § 1331 when the face of the Complaint " establishes either that federal law creates the cause of action or that the Plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. of Cal. v. Const. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 27-28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983).

In evaluating a motion to dismiss under Rule 12(b)(1), the Court must " assume the truth of all material factual allegations in the complaint and 'construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged[.]'" Am. Nat'l Ins. Co. v. F.D.I.C., 642 F.3d 1137, 1139, 395 U.S.App.D.C. 316 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972, 364 U.S.App.D.C. 326 (D.C. Cir. 2005)). Nevertheless, " 'the court need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions.'" Disner v. United States, 888 F.Supp.2d 83, 87 (D.D.C. 2012) (quoting Speelman v. United States, 461 F.Supp.2d 71, 73 (D.D.C. 2006)). The Court is obligated to consider its own subject matter jurisdiction sua sponte if necessary. NetworkIP, LLC v. F.C.C., 548 F.3d 116, 120, 383 U.S.App.D.C. 310 (D.C. Cir. 2008). When the absence of subject matter jurisdiction is obvious, the Court must dismiss at any time, including before service of all defendants. Caldwell v. Kagan, 777 F.Supp.2d 177, 179 (D.D.C. 2011).

II. ANALYSIS

A. Plaintiff's Allegations

Plaintiff alleges the following facts, which the Court will accept as true for purposes of this motion. Plaintiff is a citizen of Saint Lucia, an attorney, and a member of the House of Assembly, the Saint Lucian parliament, since 2006. (First Am. Compl. ¶ ¶ 1-2, 16). Defendant Hillyer is a United States citizen and at all relevant times was employed by the U.S. Department of State as a consular officer in the United States Embassy to Barbados and the Eastern Caribbean, located in Bridgetown, Barbados (" Bridgetown Embassy" ). ( Id. ¶ 3). Saint Lucia, which does not have its own U.S. embassy, is served by the Bridgetown Embassy. ( Id. ¶ 9). Defendant Chainer is a U.S. citizen and " was employed as a legal attaché stationed at the [Bridgetown Embassy] between 2001 and 2007," although she allegedly maintained " contacts and influence" at the Bridgetown Embassy thereafter. ( Id. ¶ ¶ 4, 72). Defendant Sweeney is also a U.S. citizen, was the Consul General at the Bridgetown Embassy in August 2011, and at all relevant times was an employee of the U.S. State Department. ( Id. ¶ 5). Defendant George Deterville is a citizen of Saint Lucia and serves as the head of the security detail for the Prime Minister of Saint Lucia. ( Id. ¶ 6). Defendant John Doe 1 is the consular officer who in 2011 revoked Plaintiff's B1/B2 and A1 diplomatic visas. ( Id. ¶ 7). Defendant John Doe 2 is the consular officer assigned to review Plaintiff's immigrant visa application and who rejected that application on October 31, 2012. ( Id. ¶ 8). At all relevant times, Doe 1 and Doe 2 were employees of the U.S. State Department. ( Id. ¶ ¶ 7-8).

Plaintiff was issued a United States B1/B2 visa in 1984, which the United States repeatedly reissued. ( Id. ¶ ¶ 40-42). He obtained a diplomatic passport accompanied by an A1 diplomatic visa in January of 2007. ( Id. ¶ 43). Three months prior to the Saint Lucian General Elections of November 2011, he received a telephone call from a Bridgetown U.S. Embassy official identifying himself as Tom Broughton, who informed Plaintiff that his B1/B2 and A1 diplomatic visas had been revoked. ( Id. ¶ 47). When Plaintiff inquired of the reason for revocation, Broughton stated it was because of " new information that came to hand" and, when Plaintiff pushed further, Broughton replied he was " not at liberty" to provide a substantive reason for revocation. ( Id. ¶ ¶ 47--48). Frederick alleges the revocations, which should have been confidential, were leaked to the press and public. ( Id. ¶ 50). Given that travel to the U.S. is seen by Saint Lucian citizens as essential to holding government office, Frederick's political opponents used the visa revocations and attendant speculation about illegal conduct leading to the revocation against him in the November 2011 election. ( Id. ¶ ¶ 51--56). Frederick claims that the political fallout of his visa revocations forced him to resign his position as Minister for Housing, Urban Renewal and Local Government in September 2011, although he was re-elected to his seat in the House of Assembly in November 2011. ( Id. ¶ 57). Frederick alleges that " [i]t is widely believed" that his political party lost its parliamentary majority in that election due to the visa revocations scandal. ( Id. ¶ 61). Frederick made several unsuccessful attempts to obtain an official reason for his visa revocations. ( Id. ¶ 63).

Sometime in 2009 or 2010, prior to the revocation of his visas, Frederick's daughter, a U.S. citizen, filed a petition for an immigrant visa on his behalf so that he could travel, live, and work freely in the U.S. without need for further visas. ( Id. ¶ ¶ 65-66). Frederick was interviewed by U.S. Embassy officials on October 9, 2012, and subsequently informed that his application had been denied by letter dated October 31, 2012 from the Bridgetown Embassy.

Frederick alleges that " Defendant Chainer, at Defendant Deterville's urging, conspired with United States Embassy Officials, including Defendants Hillyer, Sweeney, and Doe 1 to create a false and improper basis for revoking Frederick's visas, and then to revoke those visas to cause political embarrassment to Frederick for the political gain of the [opposing political party] and Deterville." ( Id. ¶ 73). In Count I, Mr. Frederick alleges violations of 22 C.F.R. § 13.3 and 22 U.S.C. § 3926 by Hillyer, acting at the behest of Chainer, and by John Doe 1, acting at the behest of Chainer and Hillyer, in revoking Frederick's B1/B2 and A1 diplomatic visas. (Compl. ¶ ¶ 82--87). 22 C.F.R. § 13.3 was a State Department regulation, now repealed, providing for liability by consular officers for certain actions. 22 U.S.C. § 3926 authorizes the Secretary of State to prescribe regulations for carrying out functions of the Foreign Service and to delegate those functions to others at the Department of State. In Count II, Frederick alleges violations of 22 C.F.R. § 13.3 and 22 U.S.C. § 3926 by John Doe 2 in denying Frederick's immigrant visa. ( Id. ¶ ¶ 88--91). In Count III, Frederick alleges a conspiracy to violate 22 C.F.R. § 13.3 and 22 U.S.C. § 3926 by Hillyer, Chainer, Sweeney, Deterville, John Doe 1, John Doe 2, " and other Unnamed ...


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