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Searcy v. Federal Bureau of Investigation

United States District Court, W.D. Washington, Seattle

June 27, 2019

RICK SEARCY, Petitioner,
v.
FEDERAL BUREAU OF INVESTIGATION, Respondent.

          ORDER

          JOHN C. COUGHENOUR UNITED STATES DISTRICT JUDGE.

         This 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.

         I. BACKGROUND

         Petitioner 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.)

         II. DISCUSSION

         A. Sovereign Immunity

         Under 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).

         Petitioner 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 jurisdiction.

         B. Motion to Dismiss

         A party 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.

         A party 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.

         Petitioner 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.

         C. Writ of Mandamus

         The 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. Court ...


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