United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Respondent Federal Bureau of
Investigation's (the “FBI”) motion to dismiss
(Dkt. No. 20) Petitioner's supplementary amended petition
for writ of mandamus (Dkt. No. 14). Having thoroughly
considered the parties' briefing and the relevant record,
the Court finds oral argument unnecessary and hereby GRANTS
the motion for the reasons explained herein.
Rick Searcy alleged that he was an informant for the FBI and
has consequently faced threats, harassment, intimidation, and
false imprisonment by various third parties. (See
generally Dkt. No. 1). On February 15, 2019, Petitioner
filed a petition for a writ of mandamus, seeking to
“compel the F.B.I. to provide adequate protection,
including placing [Petitioner] in the witness protection
program immediately.” (Id. at 1.) Petitioner
filed a motion for discovery, requesting that the FBI provide
“all evidence acquired by the [FBI] while conducting
its investigation concerning [Petitioner] . . . .”
(Dkt. No. 2.) The FBI moved to dismiss the petition for lack
of subject matter jurisdiction and for failure to state a
claim, and to stay discovery. (Dkt. No. 11 at 1.) Petitioner
amended his petition, asserting similar allegations to those
in his first petition and seeking “an order from [the
Court] moving this matter forward as a matter of right based
on the factual allegations contained in all
[Petitioner's] pleadings with the incorporation of all
exhibits.” (See Dkt. No. 14 at 11.) Petitioner
filed a second motion for discovery containing the same
request as the first motion for discovery. (See Dkt.
No. 16.) The FBI moved to dismiss the supplementary amended
petition for lack of subject matter jurisdiction and for
failure to state a claim, and to stay discovery. (Dkt. No. 20
at 1.) Petitioner filed a motion to find the FBI's
counsel in contempt. (Dkt. No. 23.)
the doctrine of sovereign immunity, a party cannot sue the
United States without its consent. United States v.
Mitchell, 445 U.S. 535, 538 (1980); Cato v. United
States, 70 F.3d 1103, 1107 (9th Cir. 1995). Such consent
“cannot be implied but must be unequivocally
expressed.” Mitchell, 445 U.S. at 538. The
claimant must prove the federal government's waiver of
immunity. Baker v. United States, 817 F.2d 560, 562
(9th Cir. 1987). The Court may dismiss an action solely for
lack of waiver of sovereign immunity. See McCarthy v.
United States, 850 F.2d 558, 560 (9th Cir. 1988). Such a
dismissal is independent of subject matter jurisdiction.
Powelson v. U.S., By & Through Sec'y of
Treasury, 150 F.3d 1103, 1105 (9th Cir. 1998).
has not met his burden of establishing a waiver of sovereign
immunity because he has not provided any evidence clearly
showing that the FBI has waived its sovereign immunity.
(See generally Dkt. No. 14.) The FBI has not
consented to this lawsuit. (See Dkt. No. 20 at 3.)
Petitioner's failure to establish consent of a waiver is
a basis to dismiss the petition. See McCarthy, 850
F.2d at 560. Nonetheless, the Court will evaluate whether
Petitioner has a valid claim for which he is entitled to
relief and over which the Court has subject matter
Motion to Dismiss
may move to dismiss a claim if the Court lacks subject matter
jurisdiction over the claim. Fed.R.Civ.P. 12(b)(1). Subject
matter jurisdiction concerns the Court's power to hear a
case. United States v. Cotton, 535 U.S. 625, 630
(2002). Parties cannot waive or forfeit subject matter
jurisdiction, and the Court must independently determine
whether it has subject matter jurisdiction. Id.
may also move for dismissal if the claimant “fail[s] to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). A claim for relief must include
“a short and plain statement of the claim showing that
the pleader is entitled to relief; and . . . a demand for the
relief sought . . . .” Fed.R.Civ.P. 8(a). The statement
must put a party on fair notice of the claim and its grounds.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). In reviewing a motion to dismiss, the Court accepts
all factual allegations as true and views them in the light
most favorable to the nonmoving party. Vasquez v. L.A.
Cty., 487 F.3d 1246, 1249 (9th Cir. 2007). To survive a
motion to dismiss, a claim must be “plausible” in
that the facts pled “allow the court to draw [a]
reasonable inference” connecting the facts and the
relief sought. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Determining plausibility is
“context-specific” and “requires the
reviewing court to draw on its judicial experience and common
sense.” Id. at 679.
has failed to articulate a legal basis for his claims, and
thus the Court cannot evaluate whether subject matter
jurisdiction exists. (See generally Dkt. No. 14.)
Petitioner has not provided a short and plain statement that
puts Respondent on fair notice of the claim and its grounds.
(See generally id.) Instead, he alleges that various
third parties have harmed him in a number of ways, without
providing a legal basis for these claims. (See generally
id.) Thus, the Court cannot make a reasonable inference
from Petitioner's allegations that a writ of mandamus is
justified, as further explained below.
Writ of Mandamus
Court has original jurisdiction over “any action in the
nature of mandamus to compel an officer or employee of the
United States or any agency thereof to perform a duty owed to
the plaintiff.” 28 U.S.C. § 1361. Mandamus is a
suitable remedy only if: “(1) the individual's
claim is clear and certain; (2) the official's duty is
nondiscretionary, ministerial, and so plainly prescribed as
to be free from doubt[;] and (3) no other adequate remedy is
available.” Patel v. Reno, 134 F.3d 929, 931
(9th Cir. 1997). Mandamus is an extraordinary remedy to be
issued at the court's discretion. Kerr v. U.S. Dist.