UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

MUHAMMAD ZUBAIR MUFTI, )

 )

Plaintiff, )

 )

v. ) CAUSE NO.: 4:15-CV-97-TLS

 )

LORETTA LYNCH, et al., )

 )

Defendants. )

OPINION AND ORDER

On October 29, 2015, the Plaintiff, Muhammad Zubair Mufti, filed a pro se Complaint

[ECF No. 1] against the following defendants: U.S. Attorney General Loretta E. Lynch, U.S.

Secretary of Homeland Security Jeh Johnson, U.S. Secretary of State John F. Kerry, Director of

U.S. Citizenship and Immigration Services Leon Rodriguez, U.S. Ambassador to Pakistan

Richard Olson, and Jane & John Doe (U.S. Consulars 1 through 999). The Plaintiff alleges that

the Defendants, acting in their official capacities, unreasonably delayed the processing of

immigrant visa petitions under Form I-130 (Petition for Alien Relative) and Form I-129F

(Petition for Alien Fiancé(e)). Attached to the Plaintiff’s Complaint is a 56-page exhibit

containing a variety of documents related to the visa petitions at issue. 

This matter is now before the Court on a Motion to Dismiss [ECF No. 12] and

Memorandum in Support [ECF No. 13], filed by the Defendants on December 31, 2015. The

Defendants specifically move to dismiss the Complaint under Federal Rules of Civil Procedure

12(b)(1) (lack of subject matter jurisdiction) and 12(b)(6) (failure to state a claim). The Plaintiff

filed a Response [ECF No. 20] on April 28, 2016; the Defendants filed a Reply [ECF No. 23] on

May 16, 2016; and the Plaintiff filed a Surreply [ECF No. 24] on June 3, 2016 For the reasons

set forth below, the Motion to Dismiss [ECF No. 12] is granted. 
BACKGROUND

A review of the Plaintiff’s Complaint and his attached exhibit indicates the following:

on January 4, 2008, the Plaintiff, a U.S. citizen, married Sidra Zubair Mufti (“Mrs. Mufti”), a

citizen of Pakistan, in Karachi, Pakistan. On February 14, 2008, the Plaintiff filed a Form I-130

with U.S. Citizenship and Immigration Services (“USCIS”), on behalf of Mrs. Mufti. On

December 2, 2009, USCIS approved the I-130 petition and the file was sent to the National Visa

Center (“NVC”), which then forwarded the file to the U.S. Embassy in Pakistan (UEP) for

further processing. On September 3, 2010, Mrs. Mufti was interviewed at UEP in connection

with her visa application. The consular officer issued a visa refusal letter pursuant to 8 U.S.C. 

§ 1201(g),1

 requesting that Mrs. Mufti provide two original divorce certificates for the Plaintiff’s

two previous marriages. On October 22, 2011, Mrs. Mufti received a second visa refusal letter

pursuant to 8 U.S.C. §§ 1201(g) and 1182(a)(6)(C)(I),2 because the consular officer questioned

the legitimacy of the divorce certificates submitted in connection with the visa application. 

On December 5, 2011, the Plaintiff, based on the advice of counsel, filed a second I-130

petition with USCIS on behalf of Mrs. Mufti. On December 5, 2012, the second I-130 petition

1

Section 1201(g) provides that:

No visa or other documentation shall be issued to an alien if (1) it appears to the consular

officer, from statements in the application, or in the papers submitted therewith, that such

alien is ineligible to receive a visa or such other documentation under section 1182 of this

title, or any other provision of law, (2) the application fails to comply with the provisions

of this chapter, or the regulations issued thereunder, or (3) the consular officer knows or

has reason to believe that such alien is ineligible to receive a visa or such other

documentation under section 1182 of this title, or any other provision of law. 

2

Section 1182(a)(6)(C)(I) bars an alien from receiving a visa or admission into the United States

the alien “seeks to procure (or has sought to procure or has procured) a visa, other documentation, or

admission into the United States or other benefit provided under this chapter” through “fraud or willfully

misrepresenting a material fact.” 

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was approved. On May 16, 2013, Mrs. Mufti was interviewed at UEP in connection with her

second visa application. The consular officer then issued a visa refusal letter pursuant to 8 U.S.C.

§ 1201(g).

On September 4, 2013, USCIS issued the Plaintiff a Notice of Intent to Revoke (NOIR)

the first I-130 petition. The NOIR contained a request for the Plaintiff to address the issues

surrounding the legitimacy of the divorce certificates the Plaintiff submitted in connection with

his petition. On October 4, 2013, the Plaintiff responded to the NOIR and submitted additional

evidence in support of the first I-130 petition. Although no date is provided, the Complaint

indicates that a visa was issued to Mrs. Mufti shortly after she was interviewed on October 22,

2014.3

 On January 9, 2015, the Plaintiff traveled to Pakistan to bring his family to the United

States. 

The Plaintiff generally alleges that the Defendants “failed to process promptly and

adjudicate [his] sponsorship visa applications in a timely manner” (Compl. ¶ 54), and through

their actions, they have “caused unnecessary and injurious delays to [the] Plaintiff, in violation

of his rights,” (id. at ¶ 56). The Plaintiff is suing the Defendants in their official capacities, and is

seeking compensatory damages pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2674 (the Federal

Tort Claims Act);4 injunctive and declaratory relief pursuant to 28 U.S.C. § 1361 (the federal

3

Attached to the Defendants’ Memorandum [ECF No. 13] in support of dismissal is a Declaration

of Chloe Dybdahl [ECF No. 13-1], an attorney at the United States Department of State, who declares

under penalty of perjury that, according to the Consular Consolidated Database, a consular officer issued

a visa to Mrs. Mufti on November 18, 2014. Because the issuance of Mrs. Mufti’s visa is referenced in

the Complaint and is central to the Plaintiff’s claim, the Court will consider the Defendants’ exhibit [ECF

No. 13-1] in conjunction with the pleadings. See Citadel Grp. v. Wash. Reg’l Med. Ctr., 692 F.3d 580,

591 (7th Cir. 2012) 

4

The Plaintiff also seeks punitive damages under 15 U.S.C. § 6604, a statute that limits punitive

damages for defendants in relation to a “Y2K” action. This statute is inapplicable here.

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mandamus statute), 5 U.S.C. § 701 et seq. (the Administrative Procedure Act), and 28 U.S.C. 

§ 2201 (the Declaratory Judgment Act); and costs and attorney’s fees pursuant to 28 U.S.C. 

§ 2412 (the Equal Access to Justice Act). 

STANDARD OF REVIEW

Rule 12(b)(1) provides that a party may assert the defense of lack of subject matter

jurisdiction by motion. Fed. R. Civ. P. 12(b)(1). “Subject-matter jurisdiction is the first question

in every case, and if the court concludes that it lacks jurisdiction it must proceed no further.”

Illinois v. City of Chi., 137 F.3d 474, 478 (7th Cir. 1998). When considering a motion to dismiss

for lack of subject matter jurisdiction, a court must accept as true all well-pleaded factual

allegations and draw all reasonable inferences in favor of the plaintiff. Alicea-Hernandez v.

Catholic Bishop of Chi., 320 F.3d 698, 701 (7th Cir. 2003).

Similarly, when reviewing a complaint attacked by a Rule 12(b)(6) motion, a court must

accept all of the factual allegations as true and draw all reasonable inferences in favor of the

plaintiff. Erickson v. Pardus, 551 U.S. 89, 93 (2007). The complaint need not contain detailed

facts, but surviving a Rule 12(b)(6) motion “requires more than labels and conclusions . . . .

Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A claim has facial plausibility when the pleaded

factual content 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) (citing Twombly, 550 U.S.

at 556). At the same time, the Court must construe the Plaintiff’s pro se submissions in a liberal

manner. See Wilson v. Civil Town of Clayton, Ind., 839 F.2d 375, 378 (7th Cir. 1988); see also

Hughes v. Rowe, 449 U.S. 5, 9 (1980) (stating that a plaintiff’s pro se status means that his

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submissions should be held “to less stringent standards than formal pleadings drafted by

lawyers”) (internal quotation marks and citation omitted).

ANALYSIS

A. Compensatory Damages

As an initial matter, the Plaintiff cannot recover damages under 42 U.S.C. § 1983. To

prevail on a § 1983 claim, the Plaintiff must show that he was deprived of a right secured by the

Constitution or laws of the United States and that the deprivation was caused by a person acting

under color of state law. Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir. 2007); Edgar v.

Inland Steel, 744 F.2d 1276, 1278 (7th Cir. 1984) (“The [§ 1983] statute, by its express terms, is

directed only to state wrongdoing.”). Because the Plaintiff’s Complaint does not pertain to state

actors—only to federal actors—§ 1983 relief is unavailable. See Dist. of Columbia v. Carter, 409

U.S. 418, 424–25 (1973) (explaining that Section 1983 does not apply to federal actors); Lewis v.

Downey, 581 F.3d 467, 471 n.3 (7th Cir. 2009) (“A county employee caring for federal prisoners

arguably becomes a federal actor, rather than the requisite state actor, rendering § 1983

inapplicable.”).5

The Plaintiff also invokes 28 U.S.C. § 2674 (the Federal Torts Claim Act). “Generally, an

individual may not sue the United States for tortious conduct committed by the government or its

agents.” Williams v. Fleming, 597 F.3d 820, 822 (7th Cir. 2010) (citing United States v. Navajo

5

In certain circumstances, a constitutional claim may be filed against a federal actor via a Bivens

action. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (authorizing the filing of

constitutional tort suits against a federal officer in the same way that 42 U.S.C. § 1983 authorizes such

suits against a state officer). However, like a § 1983 claim, a Bivens action requires that the relevant

official be sued in his or her individual capacity. Glaus v. Anderson, 408 F.3d 382, 389 (7th Cir. 2005).

Moreover, an official cannot be liable on the basis of respondeat superior or supervisory liability, as

“there must be individual participation and involvement by the [federal actor].” Arnett v. Webster, 658

F.3d 742, 757 (7th Cir. 2011). Here, the Plaintiff has not sued the Defendants in their individual

capacities, nor has he asserted that the Defendants personally participated in the alleged wrongdoing.

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Nation, 556 U.S. 287, 289 (2009) (“The Federal Government cannot be sued without its

consent.”). However, Congress created an exception through the Federal Tort Claims Act

(FTCA), whereby a suit is permitted against the United States

for injury or loss of property, or personal injury or death caused by the negligent or

wrongful act or omission of any employee of the Government while acting within the

scope of his office or employment, under circumstances where the United States, if

a private person, would be liable to the claimant in accordance with the law of the

place where the act or omission occurred.

28 U.S.C. § 1346(b)(1). 

Critically, a plaintiff may not bring an FTCA claim unless he first presented the claim to

the appropriate federal agency and the agency denied the claim. See 28 U.S.C. § 2675(a); McNeil

v. United States, 508 U.S. 106, 113 (1993) (“The FTCA bars claimants from bringing suits in

federal court until they have exhausted their administrative remedies.”); Smoke Shop, LLC v.

United States, 761 F.3d 779, 786 (7th Cir. 2014) (“[T]he FTCA bars would-be tort plaintiffs

from bringing suit against the government unless the claimant has previously submitted a claim

for damages to the offending agency, because Congress wants agencies to have an opportunity to

settle disputes before defending against litigation in court.”) (citation omitted). The claim must

be presented in writing to the appropriate Federal agency within two years after the claim

accrues; and the plaintiff must then file suit within six months of the agency’s denial of the

claim. 28 U.S.C. § 2401(b).6

The Plaintiff concedes in his Response that he did not exhaust his administrative

remedies by presenting his claim to the appropriate federal agency prior to the filing of this

lawsuit. Nevertheless, he seeks permission to comply with (or perhaps, for the Court to waive)

the FTCA’s exhaustion requirement, noting that he “was very much afraid to follow the FTCA

6

The Court notes that the Seventh Circuit does not treat compliance with the FTCA’s exhaustion

requirement as a jurisdictional prerequisite; but instead, as a “condition precedent to the plaintiff’s ability

to prevail.” Smoke Shop, 761 F.3d at 786–87 (internal quotation marks and citation omitted). 

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procedure . . . because it could make the Defendants more hostile and the slim chances of his

case approval would totally diminish.” (Pl.’s Resp. 2.)

The United States Supreme Court has held that because the FTCA represents a waiver of

sovereign immunity, its provisions must be strictly construed. See Irwin v. Dep’t of Veterans

Affairs, 498 U.S. 89, 94 (1990); see also Palay v. United States, 349 F.3d 418, 425 (7th Cir.

2003) (“A plaintiff’s failure to exhaust administrative remedies before he brings suit mandates

dismissal of the claim.”) (citing McNeil, 508 U.S. at 113). While an equitable defense to the

FTCA’s exhaustion requirement may be available in certain circumstances, the Plaintiff has not

presented a sufficient equitable defense here. Notably, the Plaintiff waited almost a full year

between the issuance of Mrs. Mufti’s visa and the filing of this lawsuit. 

Notwithstanding, the Plaintiff has not pointed to any relevant state law which imposes a

duty of care on a private person under circumstances similar to the government’s processing of a

visa application. And even assuming that USCIS has a duty to process visa applications in a

timely manner, the Plaintiff’s allegations offer no basis for the Court to declare that the

processing delay was unreasonable. For all of these reasons, the Plaintiff’s claims for monetary

damages are dismissed. 

B. Injunctive and Declaratory Relief

The Plaintiff also seeks injunctive and declaratory relief pursuant to 28 U.S.C. § 1361

(the federal mandamus statute), 5 U.S.C. § 701 et seq. (the Administrative Procedure Act), and

28 U.S.C. § 2201 (the Declaratory Judgment Act).

District courts have mandamus jurisdiction 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 an extraordinary remedy, and will be granted only if the plaintiff demonstrates that

three conditions are met: (1) he has a clear right to the relief sought; (2) the defendant has a duty

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to perform the act in question; and (3) no other adequate remedy is available. Iddir v. INS, 301

F.3d 492, 499 (7th Cir. 2002). Likewise, the Administrative Procedure Act (APA) provides that

“[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved

by agency action within the meaning of a relevant statute, is entitled to judicial review thereof,”

5 U.S.C. § 702, and

[t]o the extent necessary to decision and when presented, the reviewing court shall

decide all relevant questions of law, interpret constitutional and statutory

provisions, and determine the meaning or applicability of the terms of an agency

action. The reviewing court shall—(1) compel agency action unlawfully withheld

or unreasonably delayed. 

5 U.S.C. § 706(1); see also Patel v. Rodriguez, No. 15–cv–486, 2015 WL 6083199, at *5 (N.D.

Ill. Oct. 13, 2015) (“To succeed on a claim for unreasonable delay under the APA or the

Mandamus Act, a plaintiff must show (1) that the agency failed to take a clear, nondiscretionary

act that it is required to take, (2) that the delay is unreasonable, and (3) that there is no other

adequate avenue for relief.”) (citations omitted). 

After reviewing the Plaintiff’s submissions, the Court is uncertain as to what duty the

Plaintiff seeks to compel. The record indicates that USCIS adjudicated the Plaintiff’s I-130

petition, and that on November 18, 2014, a consular officer issued the Plaintiff’s spouse an

immigrant visa.7

 Accordingly, the Plaintiff’s claims for injunctive relief—if any—appear to have

been rendered moot. See Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (finding that a claim is

moot “when it is impossible for a court to grant any effectual relief whatever to the prevailing

party”) (internal quotation marks and citation omitted). His claims for injunctive and declaratory

7

In his Response the Plaintiff appears to narrow his requested relief to monetary damages. See

Pl.’s Resp. 1 (“[T]he original suit was NOT pleaded for gra[n]ting Plaintiff spousal US visa applications.

Plaintiff is asking for the monetary remedy due to a very long denial/delay in processing his visa

applications.”). 

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relief are dismissed.8

C. Costs and Attorney’s Fees

Lastly, the Plaintiff seeks attorney’s fees and costs pursuant to 28 U.S.C. § 2412 (the

Equal Access to Justice Act). “To be eligible for a fee award under the Equal Access to Justice

Act (EAJA), [a plaintiff] must show: (1) that he was a ‘prevailing party’; (2) that the

Government’s position was not ‘substantially justified’; (3) that no ‘special circumstances make

an award unjust’; and (4) that any fee application be submitted to the court within 30 days of

final judgment in the action and be supported by an itemized statement.” Krenioch v. United

States, 316 F.3d 684, 687 (7th Cir. 2003) (quoting Comm’r, INS v. Jean, 496 U.S. 154, 158

(1990). Aside from the fact that the Plaintiff is a pro se litigant—and is therefore not entitled to

EAJA fees, see id. at 688—the Plaintiff is not a prevailing a party. Accordingly, his request for

EAJA fees is denied. 

CONCLUSION

For the foregoing reasons, the Motion to Dismiss [ECF No. 12] is GRANTED. The Clerk

is directed to enter judgment in favor of the Defendants and against the Plaintiff.

SO ORDERED on June 7, 2016. 

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

FORT WAYNE DIVISION

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For the reasons expressed above, the Court declines to entertain the Plaintiff’s claim under the

Declaratory Judgment Act. Wilton v. Seven Falls Co., 515 U.S. 277, 282, 286–88 (1995) (finding that the

decision whether to entertain a claim under the Declaratory Judgment Act is committed to the discretion

of the district court, even when the suit otherwise satisfies subject matter jurisdictional prerequisites). 

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