The opinion of the court was delivered by: Judge Conner
Plaintiff Shahid Qureshi ("Qureshi") brings this contract claim against defendants the United States Citizenship and Immigration Service ("USCIS"), Evangelia A. Klapakis, United States Immigration and Customs Enforcement ("USICE"), and James T. Hayes (collectively, "the government"). Qureshi seeks specific performance of an oral contract, into which he allegedly entered with agents of the Drug Enforcement Agency ("DEA") and the Immigration and Naturalization Service ("INS").*fn1 By order of court (Doc. 11) dated July 9, 2009, counts one and two of Qureshi's complaint were dismissed. The government has now moved to dismiss the final count of Qureshi's complaint for lack of subject matter jurisdiction. (Doc. 12.) For the reasons that follow, the motion will be granted.
I. Statement of Facts*fn2
Qureshi is a native and citizen of Pakistan who first entered the United States on March 13, 1974. (Doc. 1 ¶ 10.) At that time, Qureshi was employed as a crewman and his initial entry was legal. (Id.) Qureshi's authorized residency period lapsed on March 25, 1974, after which he was placed into deportation proceedings. (Id. ¶¶ 10-11.) In 1979, Qureshi married an American citizen, (id. ¶¶ 11-16), and in 1980, he applied for an immigrant visa based upon this union, (id. ¶ 17). Qureshi's application was still pending when he was arrested for possession of heroin in January 1986. (Id. ¶ 21.)
Qureshi claims that over two years later, in September 1988, he approached an officer of the Department of Justice in Brunswick, Georgia, and offered to provide information concerning a shipment of hashish headed for United States soil. (Id. ¶ 102.) In exchange, Qureshi allegedly requested assistance in obtaining lawful permanent residence status. (Id. ¶¶ 102, 114.) Qureshi contends that agents of the DEA utilized the information he provided to seize 400 kilograms of hashish.
(Id. ¶ 103.) DEA and INS officials then arranged a meeting with Qureshi, where they purportedly promised him that he would be provided a green card, granted lawful permanent residence status, and could remain in the United States. (Id. ¶ 104.) Qureshi maintains that government officials failed to fulfill their promises, and he was placed into exclusion proceedings in March 1991. (Id. ¶¶ 117-19.) Qureshi presently remains an alien subject to exclusion in spite of his numerous attempts to obtain lawful permanent residency through administrative and judicial processes.*fn3
Qureshi commenced this suit by filing a complaint on December 19, 2008. (Doc. 1.) He brings the instant contract claim in equity, requesting specific performance of the oral agreement into which he allegedly entered with the DEA and INS.*fn4*fn5 On July 10, 2009, the government filed a motion to dismiss for lack of subject matter jurisdiction. (Doc. 12.) The motion has been fully briefed and is ripe for disposition.
Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a complaint for "lack of subject-matter jurisdiction." FED. R. CIV. P. 12(b)(1). A motion to dismiss under Rule 12(b)(1) therefore challenges the power of a federal court to hear a claim or case. See Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006). In the face of a 12(b)(1) motion, the plaintiff has the burden to "convince the court it has jurisdiction." Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000); see also Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) ("When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion.").
Motions under Rule 12(b)(1) may take one of two forms. A "facial" attack "contests the sufficiency of the pleadings." Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009) (quoting Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 187-88 (3d Cir. 2006)). The court assumes the veracity of the allegations in the complaint but must examine the pleadings to ascertain whether they present an action within the court's jurisdiction. United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007). The court should grant such a motion only if it appears with certainty that assertion of jurisdiction would be improper. Empire Kosher Poultry, Inc. v. United Food & Commercial Workers Health & Welfare Fund of Ne. Pa., 285 F. Supp. 2d 573, 577 (M.D. Pa. 2003); see also Kehr Packages, 926 F.2d at 1408-09. If the complaint is merely deficient as pleaded, the court should grant leave to amend before dismissal with prejudice. See Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).
In contrast, a "factual" attack argues that, although the pleadings facially satisfy jurisdictional prerequisites, one or more of the allegations is untrue, rendering the controversy outside the court's jurisdiction. Carpet Group Int'l v. Oriental Rug Imps. Ass'n, Inc., 227 F.3d 62, 69 (3d Cir. 2000); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). In such circumstances, the court is both authorized and required to evaluate the merits of the disputed allegations because "the trial court's... very power to hear the case" is at issue. Mortensen, 549 F.2d at 891; see also Atkinson, 473 F.3d at 514. In the motion sub judice, the government presents a facial attack on the court's subject matter jurisdiction; the court will analyze the contested claim accordingly.
A suit for specific performance, lodged against the federal government, "requires the specific consent of the sovereign." Bobula v. United States Dep't of Justice, 970 F.2d 854, 860 (Fed. Cir. 1992); see also Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 687-88 (1949). "The only remedy to which the United States has consented in cases of breach of contract is to the payment of money damages." Coggeshall Dev. Corp. v. Diamond, 884 F.2d 1, 3 (1st Cir. 1989) (emphasis in original); see also 28 U.S.C. § 1346(a)(1) (granting consent to suit for claims of $10,000 or less); 28 U.S.C. § 1491(a)(1) (granting consent to suit for claims in excess of $10,000). The government has not waived its immunity from suits seeking specific performance for breach of contract. Cf. 5 U.S.C. § 702; see also Sea-Land Serv., Inc. v. Brown, 600 F.2d 429, 432-33 (3d Cir. 1979). Thus, "federal courts do not have the power to order specific performance by the United States of its alleged contractual obligations." Miami Tribe of Okl. v. United States, 316 F. Supp. 2d 1035, 1040 (D. Kan. 2004) (quoting Coggeshall, 884 F.2d at 3), aff'd, 198 F. App'x 686 (10th Cir. 2006); see also Fla. Dep't of State v. Treasure Salvors, Inc. 458 U.S. 670, 688-89 (1982); Larson, 337 U.S. at 701-02; Chemung County v. Dole, 781 F.2d 963, 970 (2d Cir. 1986).
In the matter sub judice, Qureshi admits that his request is not a suit for monetary damages, (see Doc. 18 at 3), and clearly seeks specific performance of a contract.*fn6 The United States has not consented to such a suit. Therefore, the court is without jurisdiction to entertain Qureshi's ...