500 F. App'x 873
11th Cir.2012Background
- Milakovich, proceeding pro se, appeals a district court decision dismissing his civil action for lack of jurisdiction and failure to state a claim.
- Milakovich alleged violations of the Fifth and Fourteenth Amendments, various INA provisions, and 18 U.S.C. § 242 related to processing of Forms I-600 for his foreign-born, adopted sons.
- He sought citizenship for his sons under 8 U.S.C. §§ 1401, 1431, 1449, and a grant of all lost Social Security benefits, plus potential LPR status under § 1255.
- The district court held it lacked jurisdiction over claims under §§ 1401, 1431, 1449, and 1255 and dismissed the Bivens claim against two USCIS employees.
- On appeal Milakovich argues the district court erred in jurisdictional analysis and in not allowing repair of pleading deficiencies; the Eleventh Circuit affirms.
- The court reviews de novo jurisdiction and failure to state a claim, and liberally construes pro se pleadings, affirming where appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court had jurisdiction over 1401/1431/1449 claims | Milakovich asserts USCIS processing rights for his sons fall within jurisdiction. | Court lacks jurisdiction over citizenship determinations and related relief under those statutes. | No jurisdiction; claims fail on the merits under those statutes. |
| Whether Milakovich stated a claim under 1255 for his sons' LPR status or benefits | Requests for adjustment to LPR and related relief should be reviewable. | Adjustment decisions are discretionary and non-reviewable by courts. | Dismissed; no viable relief under § 1255. |
| Whether Milakovich stated a civil claim under § 242 or other asserted authorities | Violations of federal criminal statutes and agency rules support relief. | § 242 is criminal only; other asserted authorities lack judicially cognizable relief. | Rejected; no civil remedy under these authorities. |
| Whether Bivens claims against two USCIS employees were properly dismissed | Bivens liability should extend to alleged constitutional rights violations by federal agents. | Plaintiff failed to allege actionable constitutional violations or facts showing harm. | Affirmed; amendment would be futile. |
| Whether the district court should have allowed amendment or repair of pleadings | Milakovich should have an opportunity to repair deficiencies in a third amended complaint. | Amendment would be futile given the failure to state cognizable claims. | Denied; amendment would be futile; no reopening necessary. |
Key Cases Cited
- Zinni v. ER Solutions, Inc., 692 F.3d 1162 (11th Cir. 2012) (de novo review of subject-matter jurisdiction and factual findings)
- Lanfear v. Home Depot, Inc., 679 F.3d 1267 (11th Cir. 2012) (pleading standards and failure to state a claim standard)
- Timson v. Sampson, 518 F.3d 870 (11th Cir. 2008) (liberal construction of pro se briefs; abandonment of claims not raised on appeal)
- Corsello v. Lincare, Inc., 428 F.3d 1008 (11th Cir. 2005) (amendment policy; futility standard)
- Hall v. United Ins. Co. of Am., 367 F.3d 1255 (11th Cir. 2004) (amendment as a matter of course; standard for leave to amend)
- Otero v. U.S. Att’y Gen., 832 F.2d 141 (11th Cir. 1987) (private citizen has no cognizable interest in prosecution decisions)
- Hanna v. Home Ins. Co., 281 F.2d 298 (5th Cir. 1960) (criminal statute provides no basis for civil remedies)
- Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc binding precedent for pre-1981 Fifth Circuit decisions)