Opinion
Case No. 1:19-cv-346
2019-08-19
Jeffrey KANTOR, Plaintiff, v. Michael POMPEO, Secretary of State, et al., Defendants.
Jeffrey Kantor, Vienna, VA, pro se. R. Trent McCotter, United States Attorney’s Office, Alexandria, VA, for Defendants Mike Pompeo and Alex M. Azar, II. John M. Bredehoft, Kaufman & Canoles PC, Norfolk, VA, for Defendant VCU Fairfax Family Medicine Residency. Madeline Markelz Gibson, Office of the Attorney General, Richmond, VA, for Defendant University of Virginia Health System.
Jeffrey Kantor, Vienna, VA, pro se.
R. Trent McCotter, United States Attorney’s Office, Alexandria, VA, for Defendants Mike Pompeo and Alex M. Azar, II.
John M. Bredehoft, Kaufman & Canoles PC, Norfolk, VA, for Defendant VCU Fairfax Family Medicine Residency.
Madeline Markelz Gibson, Office of the Attorney General, Richmond, VA, for Defendant University of Virginia Health System.
ORDER
T. S. Ellis, III, United States District Judge
Plaintiff is a graduate of a medical school in Grenada who has been unable to obtain a medical residency in the United States. He brings this action pro se against the Secretaries of State and Health and Human Services ("the government defendants") challenging (i) the Department of State's issuance of J-1 visas to non-United States citizen doctors who participate in American residency programs and (ii) the Department of Health and Human Services' funding of those non-United States citizen doctors' residency programs. In particular, plaintiff's Second Amended Complaint seeks injunctions barring the Department of Health and Human Services from funding residencies for J-1 visa holders and barring the Department of State from issuing J-1 visas unless the non-United States citizen doctors' residency funding has been secured by a foreign source.
It appears that the only United States residency programs to which plaintiff has applied are a residency program administered by Fairfax Family Practice Centers at hospitals operated by Inova Health System and a residency program at the University of Virginia Medical Center. In addition to plaintiff's claims against the government defendants, the Second Amended Complaint also includes claims against Fairfax Family Practice Centers, Inova Health System, and the University of Virginia Medical Center ("the private defendants"). Plaintiffs claims against the private defendants, and the private defendants' pending motions to dismiss those claims, are not addressed here.
At issue in this matter are the government defendants' motions to dismiss the Second Amended Complaint for lack of jurisdiction under Rule 12(b)(1), Fed. R. Civ. P., and for failure to state a claim under Rule 12(b)(6), Fed. R. Civ. P. The government defendants' motions came before the Court for oral argument on August 16, 2019. The government defendants, by counsel, were present, but plaintiff failed to appear. Accordingly, the matter was taken under advisement without hearing oral argument. The government defendant's motions to dismiss have been fully briefed and oral argument is not necessary to aid the decisional process; thus, the matter is ripe for disposition.
I.
The history of this case that is pertinent to the instant motions can be stated succinctly. On May 17, 2019, plaintiff filed a motion for a preliminary injunction against the government defendants. On the same date, this motion was denied sua sponte because plaintiff had failed to give proper notice to the government defendants. See Dkt. 5.
Then, on May 24, 2019, plaintiff filed an amended motion for a preliminary injunction. Plaintiff and the government defendants appeared on May 31, 2019 for a hearing on this motion. By Order dated June 3, 2019, plaintiff's renewed request for a preliminary injunction was denied on the ground that plaintiff had failed to clear the high bar for the issuance of a preliminary injunction. See Dkt. 15.
In the meantime, on May 28, 2019 the government defendants filed motions to dismiss plaintiff's original Complaint for lack of jurisdiction and for failure to state a claim. On June 20, 2019—after the expiration of the deadline to file an amended complaint as a matter of course—plaintiff filed an Amended Complaint without first obtaining leave of court or written consent by the government defendants. Yet, the government defendants consented in writing to the filing of plaintiff's Amended Complaint after the fact on June 26, 2019. Thus, by Order dated June 27, 2019, the government defendants' motions to dismiss were denied as moot. See Dkt. 19.
On July 1, 2019, the government defendants promptly filed new motions to dismiss the Amended Complaint for lack of jurisdiction and for failure to state a claim. Then, on July 3, 2019, plaintiff once again filed an amended complaint—the Second Amended Complaint—without first obtaining leave of court or written consent by the government defendants. Yet, in light of the fact that the government defendants again provided written consent after plaintiff had filed the Second Amended Complaint, the government defendants' motions to dismiss the Amended Complaint were again dismissed as moot. See Dkt. 28.
On July 10, 2019, the government defendants filed motions to dismiss the Second Amended Complaint for lack jurisdiction and for failure to state a claim. For the reasons that follow, the government defendants' motions to dismiss the Second Amended Complaint must be granted.
II.
The facts material to the resolution of the government defendants' motions are not in dispute and are summarized here. Plaintiff graduated in 2018 from St. George's Medical School, which is located in Grenada. In 2017-2018 and 2018-2019, plaintiff participated in the National Resident Matching Program ("NRMP"), a not-for-profit, non-governmental corporation that matches medical students with residencies at United States hospitals. See Nat'l Resident Matching Program v. Elec. Residency LLC , 720 F. Supp. 2d 92, 96 (D.D.C. 2010). The pool of medical students served by NRMP includes non-United States citizens who have attended American medical schools. According to plaintiff, approximately 5,000 non-citizens are able to obtain medical residencies in the United States via NRMP each year through the receipt of J-1 visas. Plaintiff did not obtain a residency through his participation in the NRMP, which plaintiff claims prevents him from practicing medicine in the United States.
III
A.
The first ground on which plaintiff's claims must be dismissed is that they are barred by the principles of separation of powers and non-reviewability of immigration visa decisions. The Supreme Court has long settled that Congress has the power "to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention." Sing v. United States , 158 U.S. 538, 547, 15 S.Ct. 967, 39 L.Ed. 1082 (1895). Put simply, the power to exclude or admit aliens necessarily entails considerations of foreign policy and national security; thus, it is "a power to be exercised exclusively by the political branches of government." Kleindienst v. Mandel , 408 U.S. 753, 765, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). Accordingly, because policies concerning the admission of aliens into the country present political questions more appropriately addressed by the legislature and executive, judicial review of visa policy decisions by Congress or the Executive branch is precluded. See Fiallo v. Bell , 430 U.S. 787, 796, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) ; Romero v. Consulate of U.S., Barranquilla, Colombia , 860 F. Supp. 319, 321–22 (E.D. Va. 1994).
These well-settled principles point persuasively to the conclusion that plaintiff's claims present political questions that are not subject to judicial review. As stated above, in this action plaintiff seeks (i) an injunction barring the Department of Health and Human Services from funding residencies for J-1 visa holders and (ii) an injunction barring the Department of State from issuing J-1 visas unless the non-United States citizen doctors' residency funding has been secured by a foreign source. Plaintiff bases these claims on arguments regarding how, in plaintiff's view, this country's visa policies should operate. See Second Am. Compl. at 2, 6, 8, 11, 12, 18, 19. In short, it is clear that plaintiff's claims challenge the J-1 visa policies that Congress has established and the Executive Branch's decisions implementing such policies—immigration policy judgments that are exclusively assigned to the political branches and that are not subject to judicial review. Accordingly, plaintiff's disagreements with the visa policies of the Legislative and Executive branches must be addressed to those branches, and plaintiff's claims here must be dismissed pursuant to separation of powers and non-reviewability principles.
For example, the Second Amended Complaint argues that the purpose of providing funding for medical residents is supposed to be to train American citizens and that residency programs should favor American citizens, not graduates of American schools (who may not be United States citizens).
B.
Secondly, even if judicial review here were not barred by separation of powers and non-reviewability principles, plaintiff's claims would nonetheless fail because plaintiff has cited no statute or doctrine granting plaintiff a cause of action to bring his claims seeking injunctions against the Executive branch's issuance of J-1 visas and funding of residencies for J-1 visa holders. Each of the statutes and rules that plaintiff invokes in support of his claims are addressed below.
Plaintiff first alleges that Federal Rule of Civil Procedure 24(b) gives the Court "permission to intervene in this matter." Second Am. Compl. at 2. Plaintiff's assertion is incorrect; Rule 24 merely provides the circumstances under which a district court may permit a non-party to a lawsuit to intervene in that lawsuit. Moreover, the Fourth Circuit has explained that the Federal Rules of Civil Procedure "cannot be the basis for federal question jurisdiction," see Pineville Real Estate Operation Corp. v. Michael , 32 F.3d 88, 90 (4th Cir. 1994), and that the Rules do not "have substantive effect," see Mattison v. Dallas Carrier Corp. , 947 F.2d 95, 109 (4th Cir. 1991). It is equally certain that the Rules do not provide a party with a cause of action to bring any claim. Accordingly, Rule 24 is inapplicable here and provides plaintiff with no right to bring the instant claims.
Next, plaintiff's Second Amended Complaint invokes 42 U.S.C. § 1395 —part of the preamble to the Medicare statute—and argues that the "funding requirement for the residency program states that it must not violate 42 U.S. Code § 1395." Second Am. Compl. at 13. But neither § 1395 nor any other provision of the Medicare statute provides a private right of action authorizing a party to challenge a residency program's compliance with Medicare requirements. See Sepulveda v. Stiff , No. 4:05-cv-167, 2006 WL 3314530, at *8 (E.D. Va. Nov. 14, 2006) ("Nowhere in the relevant provisions of the C.F.R., or in the statute authorizing it [i.e. the Medicare statute], is a private right of action expressly created."). Accordingly, § 1395 provides plaintiff with no right to bring the instant claims.
Moreover, plaintiff's argument that Congress has not authorized funding for residencies of J-1 visa candidates who obtain residencies that otherwise may have been obtained by United States citizens is incorrect. Congress has expressly directed the Department of Health and Human Services to provide funding for medical residents without restricting such funding based on the residents' nationality. See 42 U.S.C. § 1395ww(h)(1) (providing that "the Secretary shall provide for payments for" the "reasonable costs of hospitals for direct graduate medical education costs"). And the funding of residencies for holders of a J-1 visa is authorized by the Immigration and Nationality Act, which permits the "Government of the United States" to "finance [ ] in whole or in part, directly or indirectly" a "program" under which non-citizens can "c[o]me to the United States ... in order to receive graduate medical education or training." 8 U.S.C. § 1182(e). Thus, even if plaintiff had a private right of action to bring his claim that Congress has limited funding of residencies to those obtained by United States citizens, such a claim would fail because it is clear that Congress has authorized the funding of medical residencies for holders of J-1 visas.
The third ground cited by plaintiff in support of his claims is Title VII, which provides plaintiff no relief for several reasons. First, it does not appear that plaintiff has exhausted his administrative remedies, as is required before a litigant can bring a Title VII claim against the federal government. See Stewart v. Iancu , 912 F.3d 693, 699 (4th Cir. 2019) (citing Pueschel v. United States , 369 F.3d 345, 353 (4th Cir. 2004) ). Second, plaintiff does not allege that he was ever employed by or that he sought to be employed by the government defendants; thus, plaintiff has not suffered an adverse employment action that is redressable under Title VII. See Boone v. Goldin , 178 F.3d 253, 256 (4th Cir. 1999) (holding that "Title VII liability can arise from a ‘tangible employment action,’ " such as an employer's " ‘hiring, firing, failing to promote, ... significant change in benefits,’ " and " ‘reassignment with significantly different responsibilities’ "). Boone v. Goldin , 178 F.3d 253, 256 (4th Cir. 1999) (quoting Burlington Industries, Inc. v. Ellerth , 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) ). Third, plaintiff appears to allege that he suffered discrimination based on the country in which the medical school he attended is located, which is not a protected classification under Title VII. See 42 U.S.C. § 2000e-2 (prohibiting employment practices taken by an employer against an individual "because of such individual's race, color, religion, sex, or national origin"); Miles v. Dell, Inc. , 429 F.3d 480, 485 (4th Cir. 2005) (holding that a Title VII plaintiff must show, inter alia , that "she is a member of a protected class"). For all of these reasons, Title VII affords plaintiff no relief.
Additionally, the fact that plaintiff attended a medical school in Grenada does not give plaintiff protected status based on his "national origin." See Ilozor v. Hampton Univ. , No. CIV A 406CV90, 2007 WL 1310179, at *7 (E.D. Va. May 3, 2007), aff'd , 286 F. App'x 834 (4th Cir. 2008) ("[A] reference to the plaintiffs academic credentials as "foreign based" says nothing about the plaintiff's national origin. Instead, it is used to describe education that is different from what would be received in the United States, or at worst, education that is of a lesser quality than would be found in the United States.").
Fourth, and finally, it is clear that the various antitrust statutes invoked by plaintiff, including the Sherman Act, the Clayton Act, and the Federal Trade Commission Act, do not support plaintiff's claims against the government defendants. Under the well-settled state-action doctrine, the Sherman Act and the Clayton Act do not apply to conduct by the federal government. See U.S. Postal Serv. v. Flamingo Indus. (USA) Ltd. , 540 U.S. 736, 745, 124 S.Ct. 1321, 158 L.Ed.2d 19 (2004) ; Cine 42nd St. Theater Corp. v. Nederlander Org., Inc. , 790 F.2d 1032, 1040 (2d Cir. 1986). In addition, there is no private right of action under the Federal Trade Commission Act. See A & E Supply Co. v. Nationwide Mut. Fire Ins. Co. , 798 F.2d 669, 675 (4th Cir. 1986) ; Holloway v. Bristol-Myers Corp. , 485 F.2d 986, 987 (D.C. Cir. 1973). Accordingly, plaintiff cannot maintain a claim against the federal defendants under any of the antitrust statutes upon which he relies. IV.
In sum, for the reasons discussed above, judicial review of Congress's visa policies and the Executive branch's execution of those policies is precluded, and plaintiff has cited no legal authority providing him with a right of action to bring his claims. Accordingly, plaintiff's claims against the federal defendants—which seek injunctions barring the Department of Health and Human Services from funding residencies for J-1 visa holders and barring the Department of State from issuing J-1 visas unless the non-United States citizen doctors' residency funding has been secured by a foreign source—must be dismissed with prejudice.
Thus, for the reasons stated above, and for good cause shown,
It is hereby ORDERED that the government defendants' motion to dismiss for lack of jurisdiction (Dkt. 29) and motion to dismiss for failure to state a claim (Dkt. 30) are GRANTED.
It is further ORDERED that all claims in the Second Amended Complaint brought against defendants Mike Pompeo as Secretary of State and Alex M. Azar, II as Secretary of Health and Human Services are DISMISSED WITH PREJUDICE and that those defendants are thus DISMISSED from this case.