Fernando Martinez v. Mike Pompeo, Secretary

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.
Case: 19-41041     Document: 00515597823           Page: 2   Date Filed: 10/12/2020




                                    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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Case: 19-41041      Document: 00515597823           Page: 3     Date Filed: 10/12/2020




                                     No. 19-41041


   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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Case: 19-41041      Document: 00515597823           Page: 4     Date Filed: 10/12/2020




                                     No. 19-41041


   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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                                        No. 19-41041


                                             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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                                    No. 19-41041


   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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