Opinion
CIVIL ACTION NO. 7:19-CV-266
2020-01-29
Rolando Rosano VASQUEZ, a.k.a. Rolando Rosano, Jr., Plaintiff, v. Michael R. POMPEO, Secretary of State, et al., Defendants.
Miriam Astrid Ayala, Law Office of Ayala & Acosta, PLLC, McAllen, TX, for Plaintiff. Neil Joseph Unruh, United States Attorney's Office Southern District of Texas, McAllen, TX, for Defendants.
Miriam Astrid Ayala, Law Office of Ayala & Acosta, PLLC, McAllen, TX, for Plaintiff.
Neil Joseph Unruh, United States Attorney's Office Southern District of Texas, McAllen, TX, for Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
Randy Crane, United States District Judge
I. Background
Now before the Court is the Motion to Dismiss filed by Defendants Michael R. Pompeo, Secretary of State, and the United States of America. (Dkt. No. 13). On August 1, 2019, after the U.S. Department of State ("DOS") denied his reapplication for a U.S. passport, Plaintiff Rolando Rosano Vasquez, a.k.a. Rolando Rosano, Jr. ("Plaintiff") filed his Complaint for Declaratory and Injunctive Relief against Defendants in this Court, seeking a declaration under 8 U.S.C. § 1503(a) that he is a U.S. citizen by virtue of his birth here, and to enjoin DOS from taking any action to the contrary with respect to his passport. (Dkt. No. 1). Defendants now move to dismiss Plaintiff's action for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), asserting that Plaintiff's § 1503(a) claim for declaratory relief is barred by the applicable five-year statute of limitations, and that the statute does not confer jurisdiction on the Court to consider Plaintiff's request for injunctive relief. (Dkt. No. 13 at pp. 5-8). To the extent that Plaintiff's action invokes the Administrative Procedures Act ("APA"), which is mentioned only in the first paragraph of his Complaint, Defendants further assert that the Court lacks jurisdiction under the APA because Plaintiff had an adequate remedy available to him under § 1503(a). (Id. at pp. 8-11).
In the alternative, Defendants ask the Court to dismiss the United States as an improperly named party, leaving DOS Secretary Pompeo as the sole, proper Defendant. (Dkt. No. 13 at p. 11). Since, for the reasons explained herein, the Court lacks jurisdiction over the entirety of Plaintiff's action, it need not address this request.
Plaintiff's response to the Motion, filed within the extension given by the Court, contests only Defendants' appeal to the five-year statute of limitations, as recently interpreted by the Fifth Circuit in Gonzalez v. Limon , 926 F.3d 186 (5th Cir. 2019). (Dkt. No. 18; see Dkt. No. 13 at pp. 5-8). Whereas Defendants read Gonzalez to start the running of the limitations period in 2012, when DOS revoked Plaintiff's U.S. passport, Plaintiff submits that limitations did not begin to run until 2017, when DOS denied Plaintiff's most recent passport application. (Id. ). After the January 8, 2020 initial pretrial conference in this case, both sides submitted additional briefing on whether the limitations period may be equitably tolled. (Dkt. Nos. 21, 22). Upon consideration of Defendants' Rule 12(b)(1) Motion and all responsive briefing, in light of the relevant law, the Court finds that the Motion must be granted.
See (Dkt. No. 16).
II. Rule 12(b)(1) Standard of Review
Federal courts have limited jurisdiction; they possess only that power authorized by federal statute and the U.S. Constitution, "which is not to be expanded by judicial decree." E.g., Gonzalez , 926 F.3d at 188 (quoting Kokkonen v. Guardian Life Ins. Co. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ). Thus, a court properly dismisses a case for lack of subject-matter jurisdiction under Rule 12(b)(1) "when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. City of Madison , 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund , 81 F.3d 1182, 1187 (2d Cir. 1996) ); see FED. R. CIV. P. 12(b)(1). "The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction," who "constantly bears the burden of proof that jurisdiction does in fact exist." Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001) ; see also Gonzalez , 926 F.3d at 188 (quoting Howery v. Allstate Ins. Co. , 243 F.3d 912, 916 (5th Cir. 2001) ("The court ‘must presume that a suit lies outside [its] limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum.’ ")). The court may determine lack of subject-matter jurisdiction on the basis of: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Ramming , 281 F.3d at 161.
III. Plaintiff's Factual Allegations
Plaintiff's Complaint alleges that he was born in Laredo, Texas in March 1978 to Rolando Rosano, Sr. ("Mr. Rosano, Sr.") and Yolanda Vasquez ("Ms. Vasquez"), at which time Mr. Rosano, Sr. was legally married to Petra Guadalupe Leal ("Ms. Leal"). (Dkt. No. 1 at ¶¶ 6, 8). Plaintiff's birth was registered in Laredo six days later. (Id. at ¶ 6). In 1979, when Plaintiff was residing with his biological mother, Ms. Vasquez, and his maternal grandparents in Nuevo Laredo, Tamaulipas, Mexico, he was baptized in a Catholic church in Nuevo Laredo. (Id. at ¶ 7). His baptismal certificate denotes his birth in Laredo, Texas. (Id. ).
Plaintiff supports these allegations with reference to separately filed copies of: (1) the Texas birth certificate of Rolando Rosano, Jr., which states that he was born in Laredo in February 1978, the same month his birth was registered there; and (2) the baptismal certificate of Rolando Rosano Vasquez, which states that he was born in Laredo in February 1978. (Dkt. No. 2, Exhs. 1, 2).
In or around 1983, when Plaintiff was five years old, Mr. Rosano, Sr. took Plaintiff to live with him and his wife, Ms. Leal, due to Ms. Vasquez's inability to care for Plaintiff. (Id. at ¶ 9). In September of that year, Mr. Rosano, Sr. registered Plaintiff's birth as having occurred in Nuevo Laredo in November 1977, so that Plaintiff could enroll in school in Mexico in 1984. (Id. ). In 1990, Plaintiff entered the United States as a citizen, and has been residing here ever since. (Id. at ¶ 11).
Plaintiff alleges that Ms. Vasquez passed away on August 16, 1984, and in support, references a copy of what appears to be the death certificate of his stepmother, Ms. Leal, who died in 1993. (Dkt. No. 1 at ¶ 10; see Dkt. No. 2, Exh. 4). Plaintiff alleges that after Ms. Vasquez's death, Mr. Rosano, Sr. and Ms. Leal raised Plaintiff along with their four children. (Dkt. No. 1 at ¶ 10).
In support, Plaintiff provides a copy of the Mexican birth certificate of Rolando Rosano Vasquez. (Dkt. No. 2, Exh. 3).
On May 21, 1998, after a short trip into Mexico, Plaintiff sought to return to the United States by presenting his Texas birth certificate at the Hidalgo, Texas Port of Entry. (Id. at ¶ 12). The examining official determined that Plaintiff was not a U.S. citizen, and Plaintiff was taken before a U.S. Magistrate Judge in the Southern District of Texas, McAllen Division and charged in Case No. "M-98-2370" with knowingly attempting to gain illegal entry into the United States by presenting a birth certificate in the name of another. (Id. ). Without the assistance of counsel, Plaintiff pleaded guilty to the charge and received a sentence of 90 days, which was suspended for three years. (Id. ). Plaintiff was then removed to Mexico. (Id. ). Nine months later, Plaintiff was admitted to the United States upon presenting his Texas birth certificate at a Port of Entry. (Id. at ¶ 13).
Defendants' Motion attaches a copy of the Criminal Complaint and Judgment in the referenced case, which support Plaintiff's allegations. (Dkt. No. 13, Exh. 1).
On May 18, 2009, Plaintiff applied for a U.S. passport card using his Texas birth certificate as proof of his U.S. citizenship. (Id. at ¶ 14). DOS did not issue the card, and on September 21, 2010, Plaintiff reapplied. (Id. ). This time, DOS issued him a passport card as proof of his U.S. citizenship. (Id. ). On June 21, 2012, after a short trip into Mexico, Plaintiff sought entry into the United States through the Hidalgo Port of Entry and was arrested and charged the next day with making a false statement in an application for a U.S. passport and falsely and willfully representing himself to be a U.S. citizen. (Id. at ¶ 15). He was detained without bond and formally indicted on July 10, 2012, in the U.S. District Court, Southern District of Texas, McAllen Division, in Case No. "M-12-1060." (Id. ). Within a week of the indictment, on July 17, 2012, DOS notified Plaintiff that it had revoked his U.S. passport. (Id. at ¶ 16). Plaintiff alleges that the finding by DOS that his Mexican birth certificate had been registered prior to his Texas birth certificate "was clearly an erroneous reading of the Mexican Birth certificate, which is written in clear modern English alphabet letters and in plain Arabic numbers and states that it was registered on September 5, 1983." (Id. ).
By order dated September 27, 2012, U.S. District Judge Micaela Alvarez referred Plaintiff for a mental competency assessment where he was being held, at the Federal Medical Center in Lexington, Kentucky. (Id. at ¶ 15). The resulting forensic report found that Plaintiff suffered from "severe mental illness or defect" sufficient to preclude his ability to proceed competently in the pending federal criminal proceeding, and the government moved to dismiss the charges against him. (Id. at ¶ 17). Judge Alvarez granted the motion and dismissed the case on March 6, 2013, and U.S. Immigration and Customs Enforcement ("ICE") took custody of Plaintiff. (Id. ).
On April 4, 2013, after nine months of detention, Plaintiff was released. (Id. at ¶ 18). He was not placed in removal proceedings, and none are pending. (Id. ). However, the order of release requires him to periodically report in person to a deportation officer in Harlingen, Texas. (Id. ). On at least three occasions between June 17, 2013 and April 28, 2014, Plaintiff submitted written requests to DOS to reconsider the revocation of his passport. (Id. at ¶ 19). On or about April 30, 2014, Plaintiff reapplied for a U.S. passport in McAllen. (Id. ). Through four separate letters over the course of almost a year, DOS requested additional evidence in connection with Plaintiff's latest passport application, and Plaintiff supplied the documents and information requested. (Id. ). On January 30, 2017, DOS denied Plaintiff's passport application, and this action ensued.
Plaintiff's Complaint supplies a copy of the denial letter. (Dkt. No. 2, Exh. 5).
IV. Jurisdiction under § 1503(a)
A. Statutory Text
In his first cause of action for a declaratory judgment, Plaintiff alleges that "[b]y virtue of the refusal of [DOS] to issue him a United States Passport, [Plaintiff] has been denied a right or privilege claimed as a national of the United States, within the meaning of 8 U.S.C. § 1503(a)," through which he seeks "a declaration that he is, indeed, a United States citizen, under 28 U.S.C. § 2201." (Dkt. No. 1 at § IV(A)). Section 1503(a) provides that any person who is denied a claimed right or privilege of U.S. citizenship may bring a declaratory judgment action under § 2201, seeking a declaration that he is a citizen of the United States. 8 U.S.C. § 1503(a). However, he may do so "only within five years after the final administrative denial of such right or privilege[.]" Id. (emphasis added). B. Fifth Circuit's Decision in Gonzalez v. Limon , 926 F.3d 186 (5th Cir. 2019)
Section 1503(a) operates as the statutory source of jurisdiction over such actions, thereby allowing courts to "declare the rights and other legal relations of any interested party seeking such declaration" under § 2201 ; standing alone, § 2201 does not confer jurisdiction. See, e.g., Parham v. Clinton , 374 F. App'x 503, 504 (5th Cir. 2010) ; 28 U.S.C. § 2201(a).
In Gonzalez , the Fifth Circuit recently spoke to what constituted the "final administrative denial" in a case involving the denial of a certificate of citizenship. In that case, the former Immigration and Naturalization Service ("INS") issued a certificate of citizenship to the Mexican-born plaintiff in 1984, finding that she had acquired U.S. citizenship through the marriage of her U.S. citizen father and Mexican citizen mother. Gonzalez , 926 F.3d at 187. In 1991, INS notified the plaintiff of its intent to cancel the certificate based on its discovery of new evidence that the marriage was invalid—a notice the plaintiff claimed she never received. Id. Fifteen years passed, and in 2006, INS's successor agency, U.S. Citizenship and Immigration Services ("USCIS"), issued an order for the surrender and cancellation of the plaintiff's certificate of citizenship. Id. The plaintiff surrendered her certificate and filed a motion for reconsideration, which was "dismissed" in 2008 ("2008 Denial"). Id. In 2014, the plaintiff filed a new motion with USCIS, advancing a new basis for reconsideration, and that motion was also dismissed. Id. This time, the plaintiff pursued an administrative appeal of the dismissal, which the Administrative Appeals Office affirmed in 2016 ("2016 Denial"). Id. In 2017, the plaintiff sought a declaration of citizenship through a § 1503(a) action filed in federal district court, but the court accepted the government's argument that the applicable five-year statute of limitations began to run at the time of the 2008 Denial, and granted the government's motion to dismiss for lack of subject-matter jurisdiction. Id. at 187-88.
On appeal of the dismissal, the Fifth Circuit affirmed, framing the dispositive question as "whether Section 1503(a) permits [the plaintiff] to seek a declaration in connection with the 2016 Denial given USCIS's prior denial in 2008." Id. at 189. In resolving this question, the Court relied heavily on Henry v. Quarantillo , 684 F. Supp. 2d 298 (E.D. N.Y. 2010), a case involving separate denials of two successive "N-600" applications for derived citizenship, and that court's determination that " Section 1503(a)'s reference to ‘the final administrative denial’ referred to the earliest of the denials." Id. (citing Henry , 684 F. Supp. 2d at 307-08 ). Gonzalez cited favorably to Henry 's reasoning that "[w]hile, standing alone, the statute might appear to indicate that any ‘final administrative denial,’ irrespective of whether another denial has occurred before it, counts, such an approach would allow an individual indefinitely to prolong the period by continuing to file applications," thereby emptying the limitations period of its meaning. Id. (quoting Henry , 684 F. Supp. 2d at 307 ) (most internal quotations and alternations omitted). That the plaintiff in Henry included new evidence with his second N-600 application "made no difference, because this evidence did not render the second process in any way qualitatively different from the first." Id. (quoting same). In sum, Henry read § 1503(a) to refer to the "first final administrative denial." Id. (quoting same) (emphasis in Gonzalez ).
In Gonzalez , the government argued that the case before the Court was identical to Henry in all relevant respects, whereas the plaintiff urged consideration of "the plain meaning of the statutory text, construed liberally as a remedial statute," pointing out that § 1503(a)'s limitations provision references not a "first" decision, but "the final administrative denial" from which the plaintiff's action arises. Id. at 189-90. The Fifth Circuit construed this argument to suggest, in essence, that "Congress had no concern with the finality of administrative decisions and with foreclosing opportunistic pleading via duplicative denials"—a suggestion it could not accept, since even though "the [statutory] text is silent regarding duplicative denials, in defining a limitations period, Congress expressed its interest in finality," and "[i]mplicitly authorizing a series of duplicative claims would frustrate that interest." Id. at 190. The Court therefore extended the reasoning and holding in Henry to the facts before it, concluding that " Section 1503(a)'s reference to ‘the final administrative denial’ means the first final administrative denial." Id.
C. Application of Gonzalez to This Case
Defendants' Motion argues that under Gonzalez , the first final administrative denial consists of the revocation of Plaintiff's passport in 2012, rather than the 2017 denial of his most recent passport application, and therefore Plaintiff's § 1503(a) action filed in 2019 is barred by the five-year statute of limitations. (Dkt. No. 13 at pp. 5-8). In opposing the extension of Gonzalez to the case at hand, Plaintiff's response highlights the differences between N-600 applications for certificates of citizenship, which serve as the means for persons born abroad to acquire or derive U.S. citizenship, and passport applications. (Dkt. No. 18 at pp. 2-3). Applicable regulations provide that after an N-600 application has been denied and the time for appeal has expired, no subsequent application may be filed; rather, the applicant must submit a motion to reopen the application or to reconsider the denial. (Id. at p. 2); see 8 C.F.R. § 320.5. Thus, it follows that the initial denial of the N-600 is the "final administrative denial" contemplated in § 1503(a), in that any subsequent "denial" is the adjudication of a motion related to the initial denial. (Dkt. No. 18 at p. 2). In contrast, "passport applications ... are considered separate and individual applications"; if granted, a passport is valid for a limited period, and an applicant must submit a new application and meet his burden of proof each time he applies for one. (Id. ); see 22 C.F.R. §§ 51.40 - 51.45. In particular, the applicant must prove he is a U.S. citizen, and must provide documentary evidence, as required by DOS, to meet that burden. (Dkt. No. 18 at p. 2). If he fails to do so, or if he fails to provide additional information within the time allowed, the application will be denied. (Id. ); see 22 C.F.R. § 51.65. "Thereafter, if an applicant wishes [DOS] to adjudicate his or her claim of entitlement to a passport," he "must submit a new application, supporting documents, and photograph, along with all applicable fees." (Dkt. No. 18 at p. 2); 22 C.F.R. § 51.65(b).
Plaintiff also submits that if an N-600 is granted, the certificate of citizenship does not "expire"; even if lost or damaged, it is not obtained through a new N-600. (Dkt. No. 18 at p. 2); see 8 C.F.R. § 343a.1.
In reply, Defendants do not challenge the distinctions drawn by Plaintiff, but argue that the Fifth Circuit's holding that "final administrative denial" means the "first" final administrative denial is explicit and sweeping enough to encompass denials of passport applications. See (Dkt. No. 19 at pp. 1-2). Defendants also observe, correctly, that Gonzalez did not manifestly limit its holding to cases involving certificates of citizenship, and that it cited with approval Icaza v. Shultz , 656 F. Supp. 819 (D. D.C. Feb. 19, 1987), one of the several decisions whose reasoning the Court found best "encapsulated" by Henry , and which concerned the application of § 1503(a)'s statute of limitations to successive passport applications. (Id. at p. 2); see Gonzalez , 926 F.3d at 189 n.8. Icaza , on which Henry also relied, found it "illogical to commence the running of the limitations period from the time in the latest in a series of passport applications," since to do so would render the § 1503(a) limitations period void of meaning. Icaza , 656 F. Supp. at 823 ; see Henry , 684 F. Supp. 2d at 307. As Plaintiff emphasizes, applicable regulations allow an individual seeking a U.S. passport to file multiple applications; to allow him to automatically reset the limitations clock by filing another after he receives a denial would effectively eviscerate the statute of limitations altogether—a result that Gonzalez forecloses.
The Court thus finds itself bound to extend the reasoning and holding in Gonzalez to passport applications, with a caveat. As Plaintiff points out, the fact that an applicant could have his passport approved following a previous denial, yet face denial of a third application notwithstanding the previous approval, uncovers one potential scenario where a later denial could be considered "qualitatively different" from the first, and therefore re-start the clock for limitations purposes. See (Dkt. No. 18 at pp. 2-3). In this scenario, it would make little sense to commence the running of the limitations period from the first denial when a subsequent approval rendered moot the need to challenge it. However, this is not such a case. Plaintiff admits that DOS revoked his passport in 2012 by reason of the finding—whether "clearly erroneous" or not —that he had insufficient proof of his birth in the United States, and that after his unresolved attempts to reconsider the revocation, followed by attempts to supply additional evidence in support of a new application for a passport, that application was denied for the same reason. Since Gonzalez instructs that the precise evidentiary basis on which the later denial rests does not render it "qualitatively different" from the first, the Court must find that the 2012 revocation of Plaintiff's passport constitutes the first, final administrative denial from which the five-year limitations period began to run.
Regrettably, it appears that the finding supporting revocation—that the registration of Plaintiff's Mexican birth certificate pre-dated the registration of his Texas birth certificate—was, in fact, erroneous. See (Dkt. No. 2, Exhs. 1, 3; Dkt. No. 22, Exh. 1).
D. Equitable Tolling
In addition to its attempt to distinguish Gonzalez , Plaintiff's response argues that extending the decision to the case at hand is "unfair to [passport] applicants because unsuccessful applicants are not warned that they must challenge a passport denial within five years of the first denial." (Dkt. No. 18 at p. 3). Rather, "the regulations affirmatively instruct ... that a new application must [then] be filed." (Id. ). Plaintiff offers no authority in support of his "unfairness" argument—one the Court construes as an appeal to the doctrine of equitable tolling —and the Court must defer to this Circuit's "long line of cases holding that mere ignorance of the law or of statutes of limitations is insufficient to warrant tolling" of the limitations period. Felder v. Johnson , 204 F.3d 168, 172 (5th Cir. 2000) (discussing cases); see also Fisher v. Johnson , 174 F.3d 710, 714 (5th Cir. 1999) ("[I]gnorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing."). However, cognizant of Plaintiff's pleaded allegations that, at least as of 2013, he was found incompetent to stand trial by reason of his "severe mental illness or defect," the Court invited further briefing from the parties on whether Plaintiff's potential mental incompetency—as opposed to his "mere ignorance" of the law—warranted equitable tolling.
This doctrine "preserves a plaintiff's claims when strict application of the statute of limitations would be inequitable." Alexander v. Cockrell , 294 F.3d 626, 629 (5th Cir. 2002) (quoting United States v. Patterson , 211 F.3d 927, 930 (5th Cir. 2000) ).
Also undermining Plaintiff's unfairness argument is evidence submitted by Defendants, in response to Plaintiff's additional briefing discussed infra , reflecting that the 2012 revocation letter informed Plaintiff of his ability to pursue a § 1503 action. (Dkt. No. 22, Exh. 1).
Assuming that equitable tolling applies in § 1503(a) cases—a point Defendants do not actively contest—Plaintiff is the party with the burden of proof, and "must demonstrate ‘rare and exceptional circumstances’ warranting application of the doctrine." Alexander , 294 F.3d at 629 (quoting Felder , 204 F.3d at 170-71 ); see (Dkt. No. 22 at p. 1). In an effort to meet his burden, Plaintiff cites to his federal criminal case dismissed in March 2013, claiming that "since at least 2006, ... a psychological evaluation conducted by a Mexican psychiatrist found that Plaintiff had a low intellectual capacity, such that he could not hold steady employment or live alone," and to the report of a psychological evaluation conducted on Plaintiff at the request his father on October 8, 2013, which resulted in a diagnosis of mild mental retardation. (Dkt. No. 21 at p. 1, Exh. 1). Plaintiff's briefing alleges that he "lives with and relies on the assistance of his father ..., but no legal guardian has been appointed for [him]." (Id. at p. 1). The record reflects that Plaintiff did, however, secure the legal assistance of counsel as early as 2013; evidence attached to Defendants' briefing demonstrates that counsel requested Plaintiff's release from ICE detention in March of that year, asserting his claim to citizenship and attaching evidence in support, and that a few months later, counsel moved to reconsider the 2012 revocation on Plaintiff's behalf. (Dkt. No. 22, Exhs. 2, 3). As Defendants point out, precedent instructs that a plaintiff's mental incompetence "does not automatically entitle [him] to equitable tolling"; rather, "he must sufficiently allege facts indicating that his incompetence impeded him from asserting his legal rights." Smith v. Johnson , 247 F.3d 240, 2001 WL 43520, at *3 (5th Cir. 2001) ; see (id. at p. 1). Where, as here, a plaintiff retained counsel during the limitations period, he cannot make that showing absent sufficient explanation for why his mental incompetence otherwise precluded him from pursuing his rights. See Hood v. Sears Roebuck & Co. , 168 F.3d 231, 233-34 (5th Cir. 1999) (citing cases); (Dkt. No. 22 at p. 2). Plaintiff's explanation consists of his complaint that in 2014, when he reapplied for a U.S. passport, he "was not warned that he must challenge the initial 2012 revocation," and "[i]nstead, for approximately two years, [DOS] sent [him] multiple requests for evidence and conducted an interview" before denying his application in January 2017. (Dkt. No. 21 at p. 3). Again, mere ignorance of the law cannot serve as (or sufficiently bolster) a basis for equitable tolling, and the Court finds the record insufficient to support a claim that DOS prevented Plaintiff and his counsel from timely challenging the 2012 revocation of his passport pursuant to § 1503, since the revocation letter expressly advised him of his ability to do so, and DOS denied Plaintiff's passport application before the limitations period had run. See Smith , 2001 WL 43520, at *2 ("[E]quitable tolling applies principally where the plaintiff is actively misled by the defendant ... or is prevented in some extraordinary way from asserting his rights.") (quoting Coleman v. Johnson , 184 F.3d 398, 402 (5th Cir. 1999) ); (Dkt. No. 22, Exh. 1). On the basis of the record before the Court, Plaintiff is not entitled to equitable tolling of the five-year limitations period, which expired prior to the filing of this action, thus preventing the Court's exercise of jurisdiction over Plaintiff's request for a declaration of U.S. citizenship under § 1503(a).
The Court cannot verify these allegations, as the relevant portion of the record in Case No. 7:12cr01060 is sealed.
E. Claim for Injunctive Relief
Plaintiff's second cause of action consists of his request for "corresponding" injunctive relief "enjoining [Defendant DOS Secretary Pompeo] from revoking or refusing to renew or replace [Plaintiff's] U.S. passport once issued." (Dkt. No. 1 at § IV(B)). Without the declaratory judgment afforded by § 1503(a), Plaintiff lacks the alleged "corresponding" relief, and he also makes no effort to contest Defendants' argument that § 1503(a) authorizes only a declaration of U.S. citizenship. See (Dkt. No. 13 at p. 8); Hodge v. U.S. Dep't of Justice , 929 F.2d 153, 157 n.11 (5th Cir. 1991) (quoting Nat'l R.R. Passenger Corp. v. Nat'l Ass'n of R.R. Passengers , 414 U.S. 453, 458, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974) ("A frequently stated principle of statutory construction is that when legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies[.]")). Absent argument or authority to the contrary, the Court accepts that it lacks jurisdiction under § 1503(a) to entertain Plaintiff's request for injunctive relief.
V. Jurisdiction under APA
Again, Plaintiff refers to the APA only in his opening paragraph, but out of an abundance of caution, Defendants assert that the APA cannot serve as a jurisdictional basis for challenging the 2017 denial of Plaintiff's passport application, since he had an adequate remedy available to him under § 1503(a). (Dkt. No. 13 at pp. 8-11). The APA provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action ..., is entitled to judicial review," but only of "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court." 5 U.S.C. §§ 702, 704. In its recent decision in Flores v. Pompeo , 936 F.3d 273 (5th Cir. 2019), the Fifth Circuit held that § 1503(a) provided an adequate judicial remedy for the simultaneous revocation of his passport and denial of his application for a new one by reason of insufficient evidence of citizenship, and therefore affirmed the district court's determination that it lacked jurisdiction over the plaintiff's APA claim challenging the same. Flores , 936 F.3d at 277. That Plaintiff here did not timely seek a declaration of U.S. citizenship after the revocation of his passport by reason of insufficient evidence of citizenship, did not render § 1503(a) an inadequate remedy against the eventual denial of his reapplication for a U.S. passport for the same reason. See (Dkt. No. 13 at p. 10); Town of Sanford v. United States , 140 F.3d 20, 23 (1st Cir. 1998) ("A legal remedy is not inadequate for purposes of the APA because ... plaintiffs have inadvertently deprived themselves of the opportunity to pursue that remedy.") (citing cases). Absent argument or authority indicating otherwise, the Court finds that it lacks jurisdiction under the APA.
Like Plaintiff, Flores had a Texas and a Mexican birth certificate, the latter allegedly "so that ... he could attend school [in Mexico]," and the Fifth Circuit noted the district judge's observation "that it is a common practice among parents of children born in the United States near the Mexican border to file both an American and a Mexican birth certificate, to enable the child to go to school in Mexico, while maintaining the child's U.S. citizenship." Flores , 936 F.3d at 275 n.1. This Court seconds that observation.
VI. Conclusion
For the foregoing reasons, the Court concludes that Plaintiff may not avail himself of the jurisdiction afforded by § 1503(a) and the APA, and hereby ORDERS that Defendants' Rule 12(b)(1) Motion to Dismiss for lack of subject-matter jurisdiction is GRANTED and this action is DISMISSED without prejudice.
Of course, Plaintiff remains free to pursue any administrative remedies available to him.
See, e.g., Firefighters' Ret. Sys. v. EisnerAmper, L.L.P. , 898 F.3d 553, 560 (5th Cir. 2018) (where dismissal is for lack of jurisdiction, or for the plaintiff's "failure to comply with a precondition requisite to the Court's going forward to determine the merits of his substantive claim," dismissal is without prejudice) (citing Fed. R. Civ. P. 41(b) (excepting dismissal for lack of jurisdiction from those dismissals that "operate[ ] as an adjudication on the merits") and quoting Costello v. United States , 365 U.S. 265, 285, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961) ).
SO ORDERED this 29th day of January, 2020, at McAllen, Texas.