Cambranis v. Pompeo

Decision Date24 March 2020
Docket NumberCase No. 5:19-CV-0238-JKP
PartiesDAVID JONATON CAMBRANIS, Plaintiff, v. MICHAEL POMPEO, Secretary, U.S. Department of State, in his official capacity, Defendant.
CourtU.S. District Court — Western District of Texas

The Court has under consideration Defendant's Motion to Dismiss Plaintiff's First Amended Complaint (ECF No. 25). With Plaintiff's response (ECF No. 31), Defendant's reply (ECF No. 32), and Plaintiff's surreply (ECF No. 44) recently filed with leave of Court, the motion is ripe for ruling. For the reasons that follow, the Court grants the motion and finds that it lacks jurisdiction under § 704 of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-06.


On January 4, 1979, Eva Lopez Escobar, a Mexican citizen, gave birth to Plaintiff in Del Rio, Texas, but initially registered his birth in Mexico. First Am. Compl. (ECF No. 16) ¶¶ 5-6, 11. In July 1981, she filed a delayed birth certificate for Plaintiff with the Texas Department of Health Bureau of Vital Statistics. Id. ¶ 12. The Texas birth certificate included an attestation by a physicianthat he had attended the birth in Del Rio, Texas, on January 4, 1979. Id. Given the existence of the Mexican birth certificate, the Texas State Registrar attached an addendum to Plaintiff's Texas birth certificate on October 13, 2010. Id. ¶ 13. The addendum barred the release of the Texas birth certificate to anyone. Id.

On March 16, 2011, the Texas Department of Health denied Plaintiff's application for a copy of his Texas birth certificate. Id. ¶¶ 14-15. On appeal, an Administrative Law Judge conducted a hearing, took testimony from Plaintiff's mother and the attending physician, and found that the evidence established Plaintiff's birth in Del Rio, Texas, despite the earlier Mexican birth certificate. Id. ¶¶ 16-18. The Texas Department of Health thus issued Plaintiff a Texas birth certificate without notation or addendum. Id. ¶ 18.

On March 17, 2017, Plaintiff applied for a United States passport. Id. ¶ 19. The United States Department of State denied the application on December 6, 2018. Id. ¶ 20. Plaintiff commenced this action in March 2019. See ECF No. 1. He later amended the complaint in accordance with Fed. R. Civ. P. 15(a). See ECF No. 16. He asserts claims under 8 U.S.C. § 1503(a), the APA, and the Fifth Amendment of the United States Constitution. Id. ¶¶ 23-32. He seeks a declaration that he is "a United States citizen and national who is entitled to the rights and privileges of citizenship, including a United States passport." Id. at 7.

Defendant has moved to dismiss this action under Fed. R. Civ. P. 12(b)(1) on various grounds and under Fed. R. Civ. P. 12(b)(6) to the extent the Court finds it has jurisdiction. For purposes of determining jurisdiction, Defendant attaches documentation to the motion which shows that, since 2009, Plaintiff has filed six passport applications that have all been denied - the first denial occurred on September 22, 2010. Plaintiff opposes the motion to dismiss and moved to file a surreply to respond to arguments set out in Defendant's reply brief. The Court has grantedPlaintiff leave to file the surreply. The motion to dismiss is ready for ruling.


Pursuant to Fed. R. Civ. P. 12(b)(1), Defendant seeks to dismiss this case for lack of jurisdiction on grounds that (1) Plaintiff did not commence the action within the five-year limitations period set forth in 8 U.S.C. § 1503(a); (2) Plaintiff cannot seek review under the APA, 5 U.S.C. § 704, because § 1503(a) provides an adequate remedy for his claim; (3) 28 U.S.C. § 1331 does not waive sovereign immunity; and (4) the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, does not provide an independent basis for jurisdiction.

"'Federal courts are courts of limited jurisdiction,' possessing 'only that power authorized by Constitution and statute.'" Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). They "must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum." Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). "When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 762 (5th Cir. 2011) (quoting Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001)). By first considering a Rule 12(b)(1) motion, courts avoid "prematurely dismissing a case with prejudice" when it lacks jurisdiction. Ramming, 281 F.3d at 161. A "court's dismissal of a plaintiff's case because the plaintiff lacks subject matter jurisdiction is not a determination of the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction." Id.

Courts have "the power to dismiss for lack of subject matter jurisdiction based on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus thecourt's resolution of disputed facts." Choice Inc. of Tex. v. Greenstein, 691 F.3d 710, 714 (5th Cir. 2012) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)); accord Flores v. Pompeo, 936 F.3d 273, 276 (5th Cir. 2019); Freeman v. United States, 556 F.3d 326, 334 (5th Cir. 2009). When determining issues of subject matter jurisdiction, the courts "may consider outside matter attached to a motion to dismiss without first converting it into a motion for summary judgment." State of Ala. ex rel. Baxley v. Woody, 473 F.2d 10, 12 (5th Cir. 1973).

The Fifth Circuit has long distinguished between "facial" and "factual" jurisdictional attacks. See Superior MRI Servs., Inc. v. Alliance Healthcare Servs., Inc., 778 F.3d 502, 504 (5th Cir. 2015) (citing Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981)). "An attack is 'factual' rather than 'facial' if the defendant 'submits affidavits, testimony, or other evidentiary materials.'" Id. When faced with a factual jurisdictional attack, "a plaintiff 'must prove the existence of subject-matter jurisdiction by a preponderance of the evidence' and is 'obliged to submit facts through some evidentiary method to sustain his burden of proof.'" Id. (quoting Irwin v. Veterans Admin., 874 F.2d 1092, 1096 (5th Cir. 1989) (internal quotation marks and footnotes omitted), aff'd sub nom., Irwin v. Dep't of Veterans Affairs, 498 U.S. 89 (1990)).

For factual attacks, "no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Williamson, 645 F.2d at 413 (quoting Mortensen v. First Fed. Sav. & Loan Assoc., 549 F.2d 884, 891 (3rd Cir. 1977)). On the other hand, a facial attack requires the courts to "consider the allegations of the complaint as true." Id. "Regardless of the nature of the attack, the plaintiff seeking a federal forum 'constantly bears the burden of proof that jurisdiction does in fact exist.'" Chandler v. United States, 338 F. Supp. 3d 592, 599 (N.D. Tex. 2018) (quoting Ramming, 281 F.3d at 161).

Defendant makes a factual jurisdictional attack by presenting evidence with its motion to dismiss. Accordingly, the Court does not presume the truthfulness of any allegation of Plaintiff and determines whether jurisdiction exists by examining the complaint as supplemented by undisputed facts. Because Plaintiff does not contest the facts within the proffered evidence, the Court has no need to resolve any disputed facts.

The circumstances of this case present the issue of sovereign immunity. "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475 (1994). "It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212 (1983). When a plaintiff seeks judicial review of an action by a federal agency under 28 U.S.C. § 1331, the courts must determine whether there has been "a waiver of sovereign immunity." Alabama-Coushatta Tribe of Tex. v. United States, 757 F.3d 484, 488 (5th Cir. 2014). The APA may waive such immunity in some circumstances. See id. Furthermore, 8 U.S.C. § 1503(a) waives sovereign immunity to permit an action under 28 U.S.C. § 2201 to remedy an "unlawful denial of a right or privilege claimed as a United States national." Gonzalez v. Limon, 926 F.3d 186, 188 (5th Cir. 2019).

With these legal principles in mind, the Court proceeds to the various jurisdictional issues presented by the parties.


Federal district courts have "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. "But § 1331 does not waive sovereign immunity." BNSF Ry. Co. v. EEOC, 385 F. Supp. 3d 512, 524 (N.D. Tex. 2018) (citing Beale v. Blount, 461 F.2d 1133, 1138 (5th Cir. 1972)). Consequently, it is not enough to merely rely on § 1331 for jurisdiction when suing the United States or its agencies. For instance,...

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