Ortega-Morales v. Lynch

• Decision Date: 09 March 2016
• Docket Number: No. CV-14-02024-PHX-NVW,CV-14-02024-PHX-NVW
• Citation: 168 F.Supp.3d 1228
• Parties: Florina Ortega-Morales; Marcela Ortega-Morales, Plaintiffs, v. Loretta Lynch, U.S. Attorney General, et al., Defendants.
• Court: U.S. District Court — District of Arizona

168 F.Supp.3d 1228

Florina Ortega-Morales; Marcela Ortega-Morales, Plaintiffs,

v.Loretta Lynch, U.S. Attorney General, et al., Defendants.

No. CV-14-02024-PHX-NVW

United States District Court, D. Arizona.

Signed March 9, 2016

Benjamin Todd Wiesinger, John Martin Pope, Pope & Associates PC, Phoenix, AZ, for Plaintiffs.

Paul Arthur Bullis, US Attorneys Office, Phoenix, AZ, for Defendants.

ORDER

Neil V. Wake

, United States District Judge

Plaintiffs seek a de novo determination of the Court pursuant to 8 U.S.C. § 1503(a)

as to whether they are United States citizens. Before the Court is Defendants' Motion to Dismiss (Doc. 14). For the reasons that follow, the motion will be granted in part and denied in part.

I. BACKGROUND

Plaintiffs Florina Ortega-Morales and Marcela Ortega-Morales are sisters born in Mexico in 1963 and 1968, respectively. Their father was a United States citizen. They reside in Phoenix, Arizona.

On August 6, 2012, Plaintiffs filed N-600 Applications for Citizenship with the United States Citizenship and Immigration Services (“USCIS”). Under the governing statute, Plaintiffs are citizens if their father lived in the United States for at least ten years before their birth, as long as five of those years were after he turned fourteen. See 8 U.S.C. § 1401(a)(7) (1964)

; 8 U.S.C. § 1401(a)(7) (1970).¹ On September 13, 2013, USCIS Field Office Director John M. Ramirez denied Plaintiffs' applications. Plaintiffs did not appeal this denial to the Administrative Appeals Unit of USCIS.

On September 12, 2014, Plaintiffs brought this action to determine their citizenship de novo , to declare invalid the denial of their applications, and to compel Defendants (collectively “the government”) to grant their applications. (Doc. 1.) Plaintiffs assert the Court has jurisdiction pursuant to the Mandamus Act (28 U.S.C. § 1361

), Administrative Procedure Act (5 U.S.C. §§ 551 et seq. ), and 8 U.S.C. § 1503(a). (Id. at ¶¶ 1-3, 41.) They claim relief pursuant to 8 U.S.C. § 1433, and they invoke the Court's authority under the Declaratory Judgment Act (28 U.S.C. §§ 2201, 2202 ). (Id. at ¶¶ 4-5.) The government moves to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. (Doc. 14.)

II. LEGAL STANDARD

A. Lack of Subject Matter Jurisdiction

On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1)

, a defendant may challenge jurisdiction by either (1) attacking jurisdictional allegations as insufficient or (2) contesting the truth of those allegations, usually by introducing evidence outside the pleadings. Leite v. Crane Co. , 749 F.3d 1117, 1121 (9th Cir.2014)

. The first, a facial attack, is resolved as it would be under Rule 12(b)(6) : accepting the allegations as true and drawing all reasonable inferences in the plaintiff's favor, the court determines whether the allegations are legally sufficient to invoke the court's jurisdiction. Id. The second, a factual attack, requires the plaintiff to support her jurisdictional allegations with competent proof, under the same evidentiary standard applied on summary judgment. Id. Here, the government contends Plaintiffs' allegations are legally insufficient to invoke federal jurisdiction.

B. Failure to State a Claim Upon Which Relief Can Be Granted

On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)

, all allegations of material fact are assumed to be true and construed in the light most favorable to the nonmoving party. Cousins v. Lockyer , 568 F.3d 1063, 1067 (9th Cir.2009). That does not apply to legal conclusions or conclusory factual allegations. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Dismissal can be based on “the lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir.1990). A complaint need contain only “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

Generally, material beyond the pleadings may not be considered in deciding a Rule 12(b)(6)

motion. However, a court may consider evidence on which the complaint necessarily relies if (1) the complaint refers to the document, (2) the document is central to the plaintiff's claim, and (3) no party questions the authenticity of the copy of the document submitted to the court. Marder v. Lopez , 450 F.3d 445, 448 (9th Cir.2006).

III. MANDAMUS ACT

Plaintiffs fail to state a claim upon which relief can be granted under the Mandamus Act. “The common-law writ of mandamus, as codified in 28 U.S.C. § 1361

, is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief....” Heckler v. Ringer , 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984). Here, Plaintiffs have not exhausted all other avenues of relief because “the alternative of a judicial declaration of nationality under 8 U.S.C. § 1503 is more than adequate” to provide all the relief they have sought by mandamus. Cartier v. Sec'y of State , 506 F.2d 191, 200 (D.C.Cir.1974) ; see also

S.T. ex rel. Trivedi v. Napolitano , No. CIV.A. H–12–285, 2012 WL 6048222, at *5 (S.D.Tex. Dec. 5, 2012). Plaintiffs do not dispute the adequacy of 8 U.S.C. § 1503 to vindicate their claims. Therefore Plaintiffs' claims under the Mandamus Act will be dismissed with prejudice.

IV. ADMINISTRATIVE PROCEDURE ACT

Plaintiffs similarly fail to state a claim upon which relief can be granted under the Administrative Procedure Act (“APA”). The APA provides judicial review for “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704

. Where a “substantive statute independently authorizes a private right of action, the APA does not govern the plaintiffs' claims.” Washington Toxics Coal. v. Envtl. Prot. Agency , 413 F.3d 1024, 1034 (9th Cir.2005). Because 8 U.S.C. § 1503(a) affords Plaintiffs a right of action, the APA does not apply. See

Trivedi , 2012 WL 6048222, at *4. Therefore Plaintiffs' claims under the APA will be dismissed with prejudice.

V. 8 U.S.C. § 1433

Plaintiffs' reliance on 8 U.S.C. § 1433

is misplaced. By its terms that statute applies only to a citizen parent's application for naturalization of a minor child, 8 U.S.C. § 1433(a), whereas here, Plaintiffs claim their own citizenship. Perhaps Plaintiffs intended to invoke 8 U.S.C. § 1401(g), which they mistakenly describe as “now repealed and found under 8 U.S.C. § 1433.” (Doc. 1 at ¶ 38.) But § 1401(g) does not by itself create a cause of action. It merely lists biographical characteristics sufficient to confer United States citizenship. As such, it is only a definitional statute. See

Hassan v. Holder , 793 F.Supp.2d 440, 446–47 (D.D.C.2011). Therefore, to the extent Plaintiffs rely on § 1433 or § 1401(g) as a cause of action, their claims will be dismissed with prejudice.

VI. 8 U.S.C. § 1503(a)

Plaintiffs' claim under 8 U.S.C. § 1503(a)

requires more careful analysis.² Under § 1503(a), a person whose right or privilege is denied by an agency on the ground that he is not a U.S. national may bring an action for declaratory judgment as to his nationality:

If any person ... claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that he is not a national of the United States, such person may institute an action under the provisions of section 2201 of Title 28

against the head of such department or independent agency for a judgment declaring him to be a national of the United States ....

Denial of an N-600 citizenship application filed pursuant to 8 U.S.C. § 1452(a)

occasions such an action. See, e.g. , Rios

–

Valenzuela v. Dep't of Homeland Sec. , 506 F.3d 393, 397 (5th Cir.2007).

However, the action “may be instituted only within five years after the final administrative denial of such right or privilege”:

An action under this subsection may be instituted only within five years after the final administrative denial of such right or privilege and shall be filed in the district court of the United States for the district in which such person resides or claims a residence, and jurisdiction over such officials in such cases is conferred upon those courts.

8 U.S.C. § 1503(a)

.

The government argues there was no “final administrative denial” here because Plaintiffs never appealed the denial of their citizenship applications to the Administrative Appeals Unit of USCIS. This argument mistakes finality for exhaustion, a confusion common in judicial discussions of this and other statutes. To address the government's argument one must first dispel that confusion.

A. Finality versus exhaustion

“The question whether administrative remedies must be exhausted is conceptually distinct ... from the question whether an administrative action must be final before it is judicially reviewable.” Williamson Cty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City , 473 U.S. 172, 192, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985)

. “While the policies underlying the two concepts often overlap, the finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury; the exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision ....” Id. at 193, 105 S.Ct. 3108

; see also

Darby v. Cisneros , 509 U.S. 137, 144, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993).

Finality and exhaustion both limit judicial intervention in the administrative process, but they do so in different ways. Finality prevents courts from reviewing agency decisions that have no real effect. Exhaustion, where required, prevents courts from reviewing agency decisions for which the party did not seek intra-agency...