Herrera v. Kerry et al

Filing 27

OPINION AND ORDER. (Signed by Judge Micaela Alvarez) Parties notified.(bgarces, 7)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
GUIDO HERRERA,
Petitioner,
VS.
JOHN F KERRY, et al,
Defendants.

May 31, 2016
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 7:15-CV-161
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OPINION AND ORDER

Pending before the Court is the “Defendants’ Motion to Dismiss as Moot,”1 filed by
Defendants The United States of America and John F. Kerry (“Mr. Kerry”) (collectively
“Defendants”). Plaintiff Guido Herrera (“Plaintiff”) has timely filed a response.2 After reviewing
the motion, response, record, and relevant authorities, the Court GRANTS the motion and
DISMISSES Plaintiff’s claim.
I.

Background

This is an action for declaratory relief pursuant to 28 U.S.C. §2201. Plaintiff filed the
claim in this Court on April 15, 2015,3 asserting that he is a United States citizen whose passport
application was wrongly denied by the Department of State on November 24, 2014. Specifically,
Plaintiff’s complaint asserts that the Department of State denied Plaintiff’s passport application
because it found he failed to establish by a preponderance of the evidence that he was a citizen of
the United States.4 Moreover, Plaintiff claims that he “has been denied a right or privilege
claimed as a national of the United States . . . by virtue of the refusal of the Department of State

1

Dkt. No. 20 (“Motion to Dismiss”).
Dkt. No. 24 (“Response”).
3
Dkt. No. 1.
4
Id. at ¶ 13.
2

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to issue them [sic] United States Passport.”5 Thus, Plaintiff requests the Court declare Plaintiff to
be a citizen of the United States, and permanently enjoin Mr. Kerry from denying him a United
States passport.6
However, on March 22, 2016, the United States Department of State issued Plaintiff a
United States passport.7 Moreover, Defendants contend that Plaintiff’s complaint is now moot
since he is no longer being denied any right or privilege of United States citizenship.8 Thus,
Defendants request the Court dismiss the claim pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure for lack of subject matter jurisdiction.9 The Court now turns to the instant
motion.
II.

Legal Standard

Pursuant to Federal Rule of Civil Procedure 12(b)(1), the Court must dismiss a civil
action for lack of subject matter jurisdiction.10 The burden of establishing federal jurisdiction
rests on the party seeking the federal forum.11 “A case is properly dismissed for lack of subject
matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the
case.”12 When conducting a Rule 12(b)(1) analysis, the Court may consider disputed facts and
should grant the motion “only if it appears certain that the plaintiff cannot prove any set of facts
in support of his claim that would entitle plaintiff to relief.”13 The Court can determine a lack of
subject matter jurisdiction by looking at “(1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by
5

Id. at p. 4.
Id. at p. 5.
7
Dkt. No. 20, Exh. A at p. 2.
8
Motion to Dismiss at p. 9.
9
Id. at p. 3.
10
FED. R. CIV. P. 12(b)(1).
11
See Home Builders Ass'n of Mississippi, Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998).
12
Id. (quotation marks and citations omitted).
13
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (quoting Home Builders Ass'n of Miss., Inc., 143
F.3d at 1010).
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undisputed facts plus the court's resolution of disputed facts.”14 Since the Court is not obligated
to accept a plaintiff's complaint as true, the Court may consider extrinsic evidence when
assessing whether it has jurisdiction.
III.

Discussion

“An individual who claims a denial of a right or privilege as a national by any department
or independent agency may seek a declaration of citizenship under § 1503(a).” 15 However,
district courts do not have jurisdiction pursuant to § 1503(a) “where [a] plaintiff has not been
denied a right or privilege as a national of the United States pursuant to a final administrative
determination.”16 Furthermore, “any set of circumstances that eliminates [the] actual controversy
after the commencement of a lawsuit renders that action moot.”17
Here, it is undisputed that Plaintiff has been issued a United States passport by the
Department of State.18 Plaintiff’s response to the instant motion argues that the action is not
moot despite the issuance of Plaintiff’s passport because “whenever [Plaintiff] tries to renew his
passport, he risks another (arbitrary) denial of his application.”19 However, in De Esparza v.
Kerry, 548 F. App’x 216, (5th Cir. 2013), the Fifth Circuit held that a plaintiff who has been
issued a United States passport cannot maintain a declaratory judgment claim pursuant to §
1503(a) on the theory that the passport may be revoked at some point in the future. Moreover, in
De Esparza, the Court explained that the plaintiff in that case had “not shown she was denied a
right or privilege as a United States national” because the passport “may be used as evidence of

14

A.A. v. Houston Indep. Sch. Dist., CIV.A. H-10-03394, 2011 WL 181356, at *1 (S.D. Tex. Jan. 19, 2011).
De Esparza v. Kerry, 548 F. App’x 216, 217 (5th Cir. 2013) (quoting Garcia v. Freeman, No. 12–41458, 542 Fed.
Appx. 354, 355, 2013 WL 5670856, at *1 (5th Cir. 2013)).
16
Id. (quotations and citation omitted).
17
Id. (quotations and citation omitted).
18
Response at p. 5.
19
Id. at p. 4.
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her citizenship during its period of validity.”20 Finally, the Court in De Esparza noted that a
declaration of citizenship under such circumstances would essentially be nothing more than an
advisory opinion.21
Similarly, Plaintiff’s issued passport properly evidences his United States citizenship.
Thus, the issuance of a United States passport to Plaintiff renders this action moot because
Plaintiff can no longer assert that he is being denied a claimed right or privilege as a citizen of
the United States. Accordingly, Defendants’ motion to dismiss is GRANTED and Plaintiff’s
declaratory judgment action is DISMISSED.
IV.

Holding

For the foregoing reasons, the Court GRANTS Defendants’ Rule 12(b)(1) motion to
dismiss. Plaintiff’s claims are hereby DISMISSED. A final judgment will issue separately.
IT IS SO ORDERED.
DONE at McAllen, Texas, this 31st day of May, 2016.
___________________________________
Micaela Alvarez
United States District Judge

20
21

De Esparza v. Kerry, 548 F. App’x 216, 217-18 (5th Cir. 2013).
Id. at 218.

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