The opinion of the court was delivered by: Bucklo, District Judge.
MEMORANDUM OPINION AND ORDER
Gregorio Diaz brought this action against Janet Reno, Attorney
General of the United States, and Brian Perryman, District
Director of the Immigration and Naturalization Service ("INS"),
alleging that he was wrongfully placed by the INS in expedited
removal proceedings and deported to Mexico. Mr. Diaz is suing the
defendants in their official capacities only. The defendants move
to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1)
for lack of subject matter jurisdiction. For the following
reasons, the motion to dismiss is granted in part.
Mr. Diaz is a United States citizen and an Illinois resident.
On February 18, 1998, Mr. Diaz entered the United States at
O'Hare International Airport and was detained by an INS agent
despite his claim of American citizenship. Mr. Diaz submitted
documentation of his citizenship to the INS, but he was placed in
expedited removal proceedings and deported to Mexico. Before
being deported he was denied a hearing before an immigration
judge, and his claim of citizenship was not verified. Mr. Diaz
was not allowed to return to the United States until March 7,
1998. The documents which Mr. Diaz presented to the INS as proof
of identity were not returned to him. Mr. Diaz alleges that as a
result of the deportation, he lost his job and suffered emotional
In his complaint, Mr. Diaz asks for damages in the amount of
$2,000,000.00. In addition, he asks for an order declaring the
defendants' actions arbitrary and capricious, for an order
requiring the defendants to return his original documentation,
and for attorney fees. The defendants move to dismiss the
complaint for lack of subject matter jurisdiction.
Subject Matter Jurisdiction
When a party raises a serious doubt as to whether a district
court has subject matter jurisdiction, the burden of proof is on
the party asserting jurisdiction.
Selcke v. New England Ins. Co., 2 F.3d 790, 792 (7th Cir.
1993). Mr. Diaz alleges in the complaint that federal
jurisdiction is based on 8 U.S.C. § 1329, 28 U.S.C. § 1361, and
28 U.S.C. § 1331(a), and that his declaratory judgment claim is
brought pursuant to 28 U.S.C. § 2201 and 28 U.S.C. § 2202.
Mr. Diaz has sued the defendants in their official capacities
only. (Compl. ¶ 3.) A suit against a federal official in his or
her official capacity is a suit against the United States.
Kentucky v. Graham, 473 U.S. 159, 165-67, 105 S.Ct. 3099, 87
L.Ed.2d 114 (1985). Under the doctrine of sovereign immunity, the
United States may not be sued without its consent. United States
v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580
(1983). Consent is a prerequisite for jurisdiction. Id.
Apparently Mr. Diaz relies on 28 U.S.C. § 1331(a) as the
jurisdictional basis for his damages claim. Section 1331(a),
however, does not waive sovereign immunity. Arvanis v. Noslo
Eng'g Consultants, Inc., 739 F.2d 1287, 1290 (7th Cir. 1984). A
basis for waiver is not alleged in the complaint. In the motion
to dismiss, the defendants construe Mr. Diaz's damages claim as a
tort claim. The Federal Tort Claims Act, 28 U.S.C. § 2671 et
seq., provides a limited waiver of sovereign immunity for tort
claims but requires exhaustion of administrative remedies.
28 U.S.C. § 2675. Mr. Diaz has not alleged that he has pursued any
administrative remedy with a federal agency.
In his response to the motion to dismiss, Mr. Diaz argues that
the complaint does not necessarily seek tort relief and that
there is no administrative procedure to adjudicate his
constitutional rights. If Mr. Diaz is attempting to bring a
constitutional claim pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct.
1999, 29 L.Ed.2d 619 (1971), that claim fails. Mr. Diaz has sued
the defendants in their official capacities only, and "the point
of Bivens was to establish an action against the employee to
avoid the sovereign immunity that would block an action against
the United States and thus would block an official-capacity
action too." Sterling v. United States, 85 F.3d 1225, 1229 (7th
Mr. Diaz has not shown that the United States has consented to
his damages claim. Therefore the damages claim is dismissed for
lack of subject matter jurisdiction.
The Claim for Declaratory Relief
Mr. Diaz seeks an order pursuant to 28 U.S.C. § 2201 and
28 U.S.C. § 2202 declaring that the defendants' actions in removing
him from this country were arbitrary and capricious and a failure
to comply with 8 C.F.R. § 235.3.*fn3 Section 2201 and 2202 do
not confer subject matter jurisdiction. Rueth, 13 F.3d at 231.
In his response to the motion to dismiss, Mr. Diaz argues that I
have subject matter jurisdiction over his declaratory judgment
claim pursuant to 8 ...