Trevino v. Kerry et al

Filing 25

MEMORANDUM AND ORDER - Plaintiffs §1503 claim is an adequate alternative remedy to mandamus, Defendants motion (Dkt. 22) is GRANTED. Plaintiffs mandamus claim is DISMISSED. This case is returned to Magistrate Judge J. Scott Hacker for further proceedings.(Signed by Judge George P Kazen) Parties notified.(gsalinas, 5)

United States District Court

O
Southern District of Texas

ENTERED
March 24, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION

ERIKA TREVINO,

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Plaintiff,
v.
REX TILLERSON,
Defendant.

David J. Bradley, Clerk

Case No. 5:16-CV-139

MEMORANDUM AND ORDER
Pending before the Court is Defendant Rex Tillerson’s1 Motion
to Dismiss Plaintiff Erika Trevino’s mandamus claim under 38 U.S.C.
§1361.

(Dkt. 22).

Plaintiff responded.

(Dkt. 24).

Plaintiff, who believes she is a natural-born U.S. citizen and
once held a U.S. Passport, sued the Secretary of State after her
passport was revoked.
complaint.

She lists two causes of action in her

First, she seeks a declaration that she is a U.S.

citizen, pursuant to 8 U.S.C. §1503.

Second, she seeks a writ of

mandamus compelling Defendant either to re-issue her passport or
give

her

an

opportunity

to

further

challenge

the

decision.

Defendant seeks to dismiss the mandamus claim.
The Mandamus Act grants district courts original jurisdiction
over “any action in the nature of mandamus to compel an officer or
1

Pursuant to Federal Rule of Civil Procedure 25(d), current
Secretary Rex Tillerson is automatically substituted for John
Kerry, the original named defendant. The parties and the Clerk of
the Court are DIRECTED to use the above heading in future filings.

employee of the United States or any agency thereof to perform a
duty owed to the plaintiff.”

38 U.S.C. §1361.

Three elements are

required for a mandamus action: “(1) the plaintiff has a clear
right to relief, (2) the defendant a clear duty to act, and (3) no
other adequate remedy exists.”

Wolcott v. Sebelius, 635 F.3d 757,

768 (5th Cir. 2011).
Defendant

argues

that

Plaintiff

elements required for mandamus relief.

cannot

meet

any

of

the

In her response, Plaintiff

addresses Defendant’s arguments under the first two elements, but
she does not address the argument that adequate relief is already
available under 8 U.S.C. §1503.

§1503 provides:

If any person who is within the United States 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 . . . declaring him to be
a national of the United States.
8 U.S.C. §1503.

For §1503 to be an adequate alternative remedy, it

must be “capable of affording full relief as to the very subject
matter in question.”

Wolcott, 635 F.3d at 768.

Typically,

“mandamus may not be resorted to as a mode of review where a
statutory method of appeal has been prescribed.”

Id.

The D.C. Circuit has found that “the alternative of a judicial
declaration of nationality under 8 U.S.C. § 1503 is more than
adequate to provide” the type of relief sought by Plaintiff.
Cartier v. Sec’y of State, 506 F.2d 191, 200 (D.C. Cir. 1974).

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Numerous district courts within the Fifth Circuit have followed
Cartier, 2 and this Court agrees.
After all, §1503 is basically a means of appealing a decision
to the district court.

Plaintiff’s passport was allegedly revoked

on “the ground that [s]he is not a national of the United States.”
8 U.S.C. §1503.

If she succeeds in her §1503 claim and is declared

a U.S. national, the State Department will no longer have a stated
reason for revoking her passport and would be expected to return
it.
Conclusion
Because Plaintiff’s §1503 claim is an adequate alternative
remedy to mandamus, Defendant’s motion (Dkt. 22) is GRANTED.
Plaintiff’s mandamus claim is DISMISSED.

This case is returned to

Magistrate Judge J. Scott Hacker for further proceedings.
DONE at Laredo, Texas, this 24th day of March, 2017.

__________________________________
George P. Kazen
Senior United States District Judge

2

E.g., Cavazos v. Kerry, 3:15-cv-0661-G, 2016 WL 4126142, at *4
(N.D. Tex. Aug. 3, 2016) (Fish, J.); Sanchez v. Clinton, H-11-2084,
2012 WL 208565, at *5 (S.D. Tex. Jan. 24, 2012) (Rosenthal, J.);
Garza v. Clinton, H-10-49, 2010 WL 5464263, at *4 (S.D. Tex. Dec.
29, 2010) (Werlein, J.); Nelson v. Clinton, H-10-58, 2010 WL
5342822, at *10 (S.D. Tex. Dec. 21, 2010) (Atlas, J.); Tavera v.
Harley-Bell, 09-cv-299, 2010 WL 1308800, at *4 (S.D. Tex. Mar. 31,
2010) (Ellison, J.). See also Parham v. Clinton, 374 F. App’x 503,
504 n.1 (5th Cir. 2010) (upholding a district court’s holding that
appellants failed to plead the necessary elements for mandamus).
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