Fernando Martinez v. Mike Pompeo, Secretary ( 2020 )

Case: 19-41041 Document: 00515597823 Page: 1 Date Filed: 10/12/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
October 12, 2020
No. 19-41041 Lyle W. Cayce
Clerk
Fernando Martinez; Leticia Guillen Ontiveros;
S.L.G.O., a minor, by and through her mother, Leticia Guillen
Ontiveros,
Plaintiffs—Appellants,
versus
Mike Pompeo, Secretary, U.S. Department of State,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:17-CV-238
Before King, Graves, and Oldham, Circuit Judges.
Per Curiam:
Fernando Martinez says that he is an American citizen and that his
wife and stepdaughter are entitled to immigrant visas. The Government
disagreed, and it refused to grant a U.S. passport to Martinez or visas to his
family. Martinez, his wife, and his stepdaughter challenged these denials in
federal court. The district court dismissed the action. We affirm.
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No. 19-41041
I.
Martinez has two birth certificates. The first one indicates he was born
in Mexico City, Mexico, in April 1965. The second one, registered in June
1965, says he was born in Eagle Pass, Texas. In 2009, Martinez applied for a
U.S. passport. After reviewing the conflicting birth certificates, the State
Department concluded that Martinez failed to show he was born in the
United States. The State Department denied his passport application in 2011.
Martinez filed a second passport application. The Government denied it in
2014 for the same reason.
Martinez married Leticia Guillen Ontiveros in 2004. Martinez filed
with United States Citizenship and Immigration Services (“USCIS”) visa
petitions for Ontiveros and Ontiveros’s daughter, Sofia. Ontiveros and Sofia
also filed for an adjustment of status. These petitions required Martinez to
demonstrate that he was a U.S. citizen. Again concluding that he had failed
to make that showing, the Government denied the visa petitions in 2013.
In 2017, Martinez, Ontiveros, and Sofia filed suit in the Southern
District of Texas against a USCIS field office director, the U.S. Secretary of
State, and the United States itself. Martinez sought a declaration of United
States nationality under 8 U.S.C. § 1503(a). He also brought Administrative
Procedure Act (“APA”) challenges against the State Department and
USCIS. Ontiveros and Sofia sought review of the visa denials, also under the
APA.
The APA is a viable cause of action only if “there is no other adequate
remedy in a court” for the challenged agency action. 5 U.S.C. § 704. The
Government moved to dismiss the APA claims, arguing that the declaration
of nationality was an adequate remedy. Plaintiffs did not file a response in
opposition to the motion. The district court agreed with the Government and
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dismissed the APA claims. Only Martinez’s § 1503 claim against the
Secretary of State remained.
Last year, while litigation in this case continued in the district court,
our court issued its decision in Gonzalez v. Limon, 926 F.3d 186 (5th Cir.
2019). In that case, plaintiff twice sought a certificate of citizenship. The
Government denied it both times, concluding that the evidence submitted by
the plaintiff “failed to establish” her citizenship. Id. at 187. Plaintiff sued,
relying on 8 U.S.C. § 1503(a). We held that the five-year limitation period for
§ 1503 claims began to run from the date of the first denial and that a second
denial does not restart the clock. Id. at 190. Because that first denial took
place more than five years before plaintiff filed the lawsuit, the suit was time-
barred. Id.
After we issued Gonzalez, the Government moved to dismiss
Martinez’s § 1503 claim on the basis that it first denied his passport
application 2011, more than five years before Martinez filed suit in 2017.
Again, Plaintiffs did not file a brief in opposition. Instead, they filed a motion
to “reinstate” the APA claims or, alternatively, to file an amended complaint
containing nothing but the APA claims. In that motion, Plaintiffs agreed that
Gonzalez applied and barred the § 1503 claim. They argued that this meant
there was no longer an “adequate remedy in a court” for the challenged
agency action other than the APA. 5 U.S.C. § 704.
The district court disagreed. It reasoned that the § 1503 claim
remained an “adequate and available remedy” despite the limitation
problem. And, applying Gonzalez, it held that the § 1503 claim was time-
barred. The court dismissed the § 1503 claim and denied the motion to
reinstate or refile the APA claims. We review the dismissals de novo, see
Hinojosa v. Horn, 896 F.3d 305, 309 (5th Cir. 2018) (per curiam), and the
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denial of the motion to reinstate or refile for abuse of discretion, see Goldstein
v. MCI WorldCom, 340 F.3d 238, 255–57 (5th Cir. 2003).
II.
Plaintiffs make three arguments on appeal. First, they assert that the
Gonzalez time bar should not apply. Second, Ontiveros and Sofia argue that
the APA claims should be restored because 8 U.S.C. § 1503 is not an
adequate remedy for the denial of their visas. Third, Martinez contends that
§ 1503 is no longer an adequate remedy for the denial of his passport if the
claim is time-barred under Gonzalez. None of these arguments has merit.
A.
We can readily dispose of the first two arguments because they are
both forfeited. In the district court, Plaintiffs did not argue that Gonzalez was
inapplicable; in fact, they argued the opposite. On appeal, we will not allow
Plaintiffs to adopt a position not taken in the district court “merely because
[they] believe[] that [they] might prevail if given the opportunity to try [the]
case again on a different theory.” Forbush v. J.C. Penney Co., 98 F.3d 817, 822
(5th Cir. 1996). Plaintiffs therefore forfeited any argument that Gonzalez does
not apply to Martinez’s § 1503 claim.
We similarly decline to consider the assertion that § 1503 did not
provide adequate relief to Ontiveros or Sofia. This is an argument Plaintiffs
could have made in response to the Government’s motion to dismiss the
APA claims. But they filed nothing at the time; nor did they raise this issue
in the motion to reinstate or refile. Because this argument was never
presented to the district court, “we will not address it on appeal.” Fed.
Deposit Ins. Corp. v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994).
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B.
Assuming Plaintiffs’ third argument was preserved, we nonetheless
reject it. We have previously held that 8 U.S.C. § 1503 supplied “an adequate
alternative remedy” for challenges to failed passport applications,
foreclosing APA relief. Flores v. Pompeo, 936 F.3d 273, 277 (5th Cir. 2019).
The fact that Plaintiffs allowed the limitations period to run does not make
§ 1503 inadequate.
We agree with our sister circuits’ uniform conclusion that “[a] legal
remedy is not inadequate for purposes of the APA because it is procedurally
inconvenient for a given plaintiff, or because plaintiffs have inadvertently
deprived themselves of the opportunity to pursue that remedy.” Town of
Sanford v. United States, 140 F.3d 20, 23 (1st Cir. 1998); see also Citizens for
Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 846 F.3d 1235, 1246
(D.C. Cir. 2017) (“[O]ur determination that [another statute] is the proper
vehicle for [plaintiff’s] claim [rather than the APA] is entirely distinct from
the question whether [plaintiff] is entitled to relief. . . . [O]ur conclusion that
certain relief is available under [the other statute] says nothing about its
propriety in an individual case.”); Johnson v. Vilsack, 833 F.3d 948, 956 n.9
(8th Cir. 2016) (agreeing that the APA adequacy analysis turns on
“Congress’s decision to pass [a law] to provide a specific remedy for claims
like [plaintiff’s], rather than any given plaintiff’s ability to file a[] . . . suit”);
Turner v. Sec’y of U.S. Dep’t of Hous. & Urban Dev., 449 F.3d 536, 541 (3d
Cir. 2006) (similar); Martinez v. United States, 333 F.3d 1295, 1320 (Fed. Cir.
2003) (en banc) (“The fact that the complaint was untimely filed . . . does
not mean that court could not offer a full and adequate remedy; it merely
means that [plaintiff] did not file his complaint in time to take advantage of
that remedy.”); Sable Commc’ns of Cal., Inc. v. Fed. Commc’ns Comm’n, 827
F.2d 640, 642 (9th Cir. 1987) (deeming the review provided by a statute
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adequate even though plaintiff’s petition for review under that statute was
untimely).
Martinez’s § 1503 claim is time-barred under Gonzalez. Therefore,
the district court properly dismissed it. The time bar did not make Martinez’s
§ 1503 remedy inadequate and hence did not require the district court to
reinstate his APA claims. And because the APA claims would not have
survived a renewed motion to dismiss, any amendment to the complaint
would have been futile. See Briggs v. Mississippi, 331 F.3d 499, 508 (5th Cir.
2003).
AFFIRMED.
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