The opinion of the court was delivered by: PLATT
The plaintiffs in the above actions seek damages under 22 U.S.C. § 1199 for harm they allegedly suffered because of the defendants' failure to issue visas to a finance and a spouse. The defendants move to dismiss on the grounds that this Court lacks jurisdiction over the subject matter, the plaintiffs lack standing to sue, the plaintiffs have failed to join an indispensable party, there is no jurisdiction over the defendants, the actions are barred by sovereign immunity and venue is improper in the Eastern District of New York.
In May of 1976 Adelaida Garcia, a United States citizen and a resident of this district, filed a petition for a non-immigrant visa for her alleged fiance, Eduardo Hernandez, a citizen and resident of the Dominican Republic, so that the two could be married and live in the United States.
On July 12, 1976, Mr. Hernandez applied at the United States Embassy in Santo Domingo for issuance of the non-immigrant visa. For various reasons the officials in Santo Domingo questioned Mr. Hernandez' intention to enter into a valid marriage and withheld the visa petition.
In September of 1976, Adelaida Garcia brought this lawsuit against Vernon McAninch, who was Consul General at the American Embassy in Santo Domingo until August 26, 1976, Jose Heredia, a Dominican citizen employed by the Embassy as an investigator, and a "John Doe" identified as a Vice-Consul at the Embassy in Santo Domingo.
In July of 1975 Leomares Ortiz applied at the American Embassy in Santo Domingo for an immigrant visa to join Jesus Ortiz, whom she had married in 1973. Jesus Ortiz says he is a permanent resident of the United States and resides in this district.
On April 2, 1976, the Embassy denied Mrs. Ortiz a visa, in part, because her marriage appeared to be "one of convenience for immigration purposes."
Jesus Ortiz brought this action against Paul Miller, who was Consul at the Embassy in Santo Domingo, Jose Heredia, and a "John Doe".
In both actions the plaintiffs allege that the defendants have acted unlawfully and arbitrarily in denying the visas and that such conduct, in effect, is "wilful malfeasance or abuse of power."
Before discussing the defendants arguments, we note first that the plaintiffs are not challenging the denial of the visas. Judicial review of the issuing of visas is generally not permitted on the theory that such decisions are exclusively within the province of the legislative and executive branches. Kleindienst v. Mandel, 408 U.S. 753, 33 L. Ed. 2d 683, 92 S. Ct. 2576 (1972); Rivera de Gomez v. Kissinger, 534 F.2d 518 (2d Cir. 1976); Burrafato v. United States Department of State, 523 F.2d 554 (2d Cir. 1975), cert. denied, 424 U.S. 910, 47 L. Ed. 2d 313, 96 S. Ct. 1105 (1976); Pena v. Kissinger, 409 F. Supp. 1182 (S.D.N.Y. 1976).
Rather the plaintiffs bring suit here under 22 U.S.C. § 1199, as amended, which reads in relevant part as follows:
"Whenever any consular officer wilfully neglects or omits to perform seasonably any duty imposed upon him by law, or by an order or instruction made or given in pursuance of law or is guilty of any wilful malfeasance or abuse of power, or of any corrupt conduct in his office, he shall be liable to all persons injured by any such neglect, or omission, malfeasance, abuse, or corrupt conduct, for all damages occasioned thereby; and for all such damages, he shall be ...