Manenti v. The Government of the USA

Background

Gisleine Cristina Manenti, a citizen of Brazil who represented herself, sued the Government of the USA after the Government denied her application for a tourist visa. She asked the court to order the Government to issue the visa. The opinion states that she appeared to seek relief under the Administrative Procedure Act.

Manenti alleged that the Government denied the visa on the ground that she lacked significant ties to Brazil and might remain in the United States illegally. She disputed that assessment and argued that it was based on an unrealistic judgment and inadequate review of the documents she submitted.

Earlier Related Proceeding

The opinion states that Manenti previously filed an action in the same court challenging the denial of a visa application. In that earlier round of the case, the court dismissed the action for lack of subject-matter jurisdiction, citing sovereign immunity and consular nonreviewability. Sovereign immunity generally protects the United States Government from suit unless it has consented to be sued. Consular nonreviewability generally limits judicial review of consular decisions denying visas. The earlier court also denied Manenti’s later request for relief under Rule 60(b) of the Federal Rules of Civil Procedure, and she did not appeal.

Court’s Analysis

The court held that it had to dismiss the present action for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(h)(3). It said the action had to be dismissed for the same reasons given in the earlier related proceeding. The court noted that Manenti alleged no facts showing that the visa denial implicated the First Amendment rights of an American citizen, which the opinion identifies as a possible exception to consular nonreviewability.

Because the defects could not be fixed by changing the complaint, the court declined to grant leave to amend. Leave to amend is permission to file a revised complaint.

Disposition and Warning

The court dismissed the action for lack of subject-matter jurisdiction. It also declined to grant leave to amend. The court warned that further litigation challenging a tourist-visa denial could lead it to begin proceedings to bar Manenti from filing new civil actions in that court without prior permission. Finally, the court certified under 28 U.S.C. § 1915(a)(3) that an appeal would not be taken in good faith and denied fee-waiver status for purposes of an appeal. Judge Laura Taylor Swain signed the order.