1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARIA ADELINA HUITRON No. 2:22-cv-2104 DB

REGALADO,

12 13 Plaintiff, 14 v. ORDER 15 ANTONY BLINKEN, Secretary, United States Department of State, et al., 16 17 Defendants. 18 19 Plaintiff Maria Adelina Huitron Regalado commenced this action through counsel on 20 September 6, 2022, by filing a complaint and paying the applicable filing fee.1 (ECF No. 1.) On 21 January 25, 2023, the matter was reassigned to the undersigned pursuant to the parties’ consent to 22 Magistrate Judge jurisdiction under 28 U.S.C. § 636(c)(1). (ECF No. 27.) Pending before the 23 court is defendants’ partial motion to dismiss pursuant to Rule 12(b)(1), and in the alternative 24 Rule 12(b)(6), of the Federal Rules of Civil Procedure. (ECF No. 26.) For the reasons stated 25 below, defendants’ partial motion to dismiss is granted. 26 //// 27 1 This matter was filed in the United States District Court for the Northern District of California 28 and transferred to this court on November 10, 2022. (ECF No. 16.) 1 BACKGROUND 2 Plaintiff is proceeding on an amended complaint filed on November 29, 2022. (ECF No. 3 21.) Therein, plaintiff alleges that she “was born on a ranch in Santa Maria, California on August 4 28, 1956.” (Am. Compl. (ECF No. 21) at 4.2) “When she was still an infant, she was brought . . . 5 to Mexico[.]” (Id.) Plaintiff moved to the United States in 1992. (Id. at 5.) Once in the United 6 States plaintiff “tracked down the midwife who was present at the time of her birth[.]” (Id.) 7 Presented with this evidence, on August 29, 2000, a state court judge found that plaintiff 8 “had been born in Santa Maria, California.” (Id.) A second judge reached the same finding on 9 January 26, 2001. (Id.) On December 3, 2001, plaintiff “was issued a Court order Delayed 10 Registration of Birth by California’s Department of Public Health.” (Id.) Plaintiff later obtained 11 a Social Security Card and California driver’s license. (Id.) 12 Thereafter, plaintiff applied for a U.S. passport, an endeavor that has lasted approximately 13 15 years. (Id. at 6.) Plaintiff’s most recent application was filed on February 1, 2021, with the 14 San Francisco Passport Agency (“SFPA”). (Id.) On March 1, 2021, the SFPA requested more 15 evidence. (Id.) On September 22, 2021, plaintiff “met with agents of the United States 16 Diplomatic Security Service[.]” (Id.) The agents asserted that “they had discovered a birth 17 certificate showing [plaintiff] had been born in Mexico” but have “declined to provide” a copy of 18 this document. (Id.) On April 29, 2022, the SFPA denied plaintiff’s application for a passport, 19 concluding “the evidence received is not sufficient to establish” that plaintiff had been born in the 20 United States. (Id.) 21 Pursuant to these allegations, the amended complaint seeks relief pursuant to 8 U.S.C. § 22 1503(a), and the Administrative Procedures Act, (“APA”), pursuant to sections 5 U.S.C. 702 and 23 5 U.S.C. 704. (Id. 4.) Named as defendants are Antony Blinken as Secretary of the United States 24 Department of State, Pamela Hack as Director of the SFPA, the Department of State (“DOS”), the 25 SFPA, the Bureau of Diplomatic Security, and the U.S. Diplomatic Security Service (“DSS”). 26 (Id. at 3.) On January 23, 2023, defendants filed an answer and a partial motion to dismiss. (ECF 27 2 Page number citations such as this one are to the page number reflected on the court’s CM/ECF 28 system and not to page numbers assigned by the parties. 1 Nos. 25 & 26.) Plaintiff filed an opposition on February 9, 2023. (ECF No. 28.) Defendants 2 filed a reply on February 21, 2023. (ECF No. 29.) Defendants’ motion was taken under 3 submission on February 27, 2023. (ECF No. 30.) 4 STANDARDS 5 I. Legal Standards Applicable to Motions to Dismiss Pursuant to Rule 12(b)(1) 6 Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense, by 7 motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific 8 claims alleged in the action. “A motion to dismiss for lack of subject matter jurisdiction may 9 either attack the allegations of the complaint or may be made as a ‘speaking motion’ attacking the 10 existence of subject matter jurisdiction in fact.” Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 11 594 F.2d 730, 733 (9th Cir. 1979). 12 When a party brings a facial attack to subject matter jurisdiction, that party contends that 13 the allegations of jurisdiction contained in the complaint are insufficient on their face to 14 demonstrate the existence of jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 15 (9th Cir. 2004). In a Rule 12(b)(1) motion of this type, the plaintiff is entitled to safeguards 16 similar to those applicable when a Rule 12(b)(6) motion is made. See Sea Vessel Inc. v. Reyes, 17 23 F.3d 345, 347 (11th Cir. 1994); Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir. 18 1990). The factual allegations of the complaint are presumed to be true, and the motion is granted 19 only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. Savage v. 20 Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n. 1 (9th Cir. 2003); Miranda v. 21 Reno, 238 F.3d 1156, 1157 n. 1 (9th Cir. 2001). Nonetheless, district courts “may review 22 evidence beyond the complaint without converting the motion to dismiss into a motion for 23 summary judgment” when resolving a facial attack. Safe Air for Everyone, 373 F.3d at 1039. 24 When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction, no 25 presumption of truthfulness attaches to the plaintiff’s allegations. Thornhill Publ’g Co., 594 F.2d 26 at 733. “[T]he district court is not restricted to the face of the pleadings, but may review any 27 evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of 28 jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). When a Rule 1 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, plaintiff has the burden 2 of establishing that such jurisdiction does in fact exist. Thornhill Publ’g Co., 594 F.2d at 733. 3 II. Legal Standards Applicable to Motions to Dismiss Pursuant to Rule 12(b)(6) 4 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 5 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 6 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of 7 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 8 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to 9 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 10 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 11 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 12 Iqbal, 556 U.S. 662, 678 (2009). 13 In determining whether a complaint states a claim on which relief may be granted, the 14 court accepts as true the allegations in the complaint and construes the allegations in the light 15 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. 16 United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less 17 stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 18 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the 19 form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th 20 Cir. 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than 21 an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 22 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 23 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 676 24 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 25 statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove 26 facts which it has not alleged or that the defendants have violated the . . . laws in ways that have 27 not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 28 459 U.S. 519, 526 (1983). 1 In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court is permitted 2 to consider material which is properly submitted as part of the complaint, documents that are not 3 physically attached to the complaint if their authenticity is not contested and the plaintiff’s 4 complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 5 250 F.3d 668, 688-89 (9th Cir. 2001). 6 ANALYSIS 7 Defendants’ partial motion to dismiss argues that the amended complaint’s request for 8 injunctive relief is barred by the language of 8 U.S.C. § 1503(a), and that the only proper 9 defendant in this action is Secretary Blinken. (Defs.’ MTD (ECF No. 26) at 8.) Those arguments 10 are supported by legal authority. See Garcia v. Limon, Civil Action No. 1:19-cv-120, 2019 WL 11 7494398, at *6 (S.D. Tex. Nov. 4, 2019) (“the only proper defendant is the head of the agency”); 12 Martinez v. Limon, Civil Action No. 1:17-cv-0238, 2018 WL 11274054, at *2-3 (S.D. Tex. Apr. 13 10, 2018) (“The statute authorizes suit only against the head of a department or agency and not 14 the United States . . . . The plain language of Section 1503(a) also bars Plaintiffs’ request for 15 injunctive relief.”); Guajardo v. Kerry, Civil Action No. SA-13-CA-608-FB, 2014 WL 12538142, 16 at *1 (W.D. Tex. May 2, 2014) (“an injunction would effectively provide plaintiff with relief 17 beyond what the statute authorizes”). 18 And plaintiff has not opposed defendants’ motion with respect to these arguments. (Pl.’s 19 Opp.’n (ECF No. 28) at 1-6). Accordingly, defendants’ partial motion to dismiss will be granted 20 with respect to these arguments. See generally Vasquez v. Pompeo, 467 F.Supp.3d 466, 475 21 (S.D. Tex. 2020) (“Absent argument or authority to the contrary, the Court accepts that it lacks 22 jurisdiction under § 1503(a) to entertain Plaintiff’s request for injunctive relief.”). 23 Defendants’ partial motion to dismiss also argues that the court lacks jurisdiction over the 24 amended complaint’s APA claim because 8 U.S.C. § 1503(a) provides plaintiff an adequate 25 remedy in this court. (Defs.’ MTD (ECF No. 26) at 7.) In this regard, “[t]he APA expressly 26 declares itself to be a comprehensive remedial scheme” providing a “person suffering legal wrong 27 because of agency action . . . judicial review[.]” Western Radio Services Co. v. U.S. Forest 28 Service, 578 F.3d 1116, 1122 (9th Cir. 2009) (quoting 5 U.S.C. § 702). However, where “a 1 plaintiff can bring suit against the responsible federal agencies under” another statute a plaintiff 2 may not maintain an APA claim because there is another adequate remedy available to the 3 plaintiff. Brem-Air Disposal v. Cohen, 156 F.3d 1002, 1005 (9th Cir. 1998); see also City of 4 Oakland v. Lynch, 798 F.3d 1159, 1166-67 (9th Cir. 2015) (APA claim barred where “there is 5 another adequate remedy—the forfeiture action”). 8 U.S.C. § 1503(a) provides that: 6 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 7 or privilege by any department or independent agency, or official thereof, upon the ground that he is not a national of the United States, 8 such person may institute an action . . . . in the district court of the United States for the district in which such person resides[.] 9 10 “[C]ourts have repeatedly dismissed APA claims challenging the denial of a passport 11 application or a passport revocation on grounds that the holder is not a U.S. national” because the 12 relief sought by the plaintiff “may be directly sought through 8 U.S.C. § 1503(a).” Villarreal v. 13 Horn, 203 F.Supp.3d 765, 773 (S.D. Tex. 2016); see also Moncada v. Pompeo, Case No. 2:19-cv- 14 1293 AB AGRx, 2020 WL 1079301, at *3 (C.D. Cal. Feb. 3, 2020) (“Plaintiff alleges that the 15 revocation of his passport by the U.S. Department of State constituted arbitrary or capricious 16 government action that is prohibited by the APA. However, as Defendant correctly argues, 8 17 U.S.C. § 1503(a) provides an adequate remedy in court.”); Dvash-Banks v. Pompeo, Case No. 18 CV 18-523-JFW (JCx), 2019 WL 911799, at *5 (C.D. Cal. Feb. 21, 2019) (“Where an applicant 19 challenges the State Department’s denial of a right or privilege of U.S. citizenship on the basis 20 that the plaintiff is not a U.S. citizen, courts have consistently concluded that Section 1503(a) 21 offers an adequate alternative remedy to APA review.”); Alsaidi v. United States Department of 22 State, 292 F.Supp.3d 320, 327 (D. D.C. 2018) (“To renew her passport, plaintiff will require 23 proof of citizenship, and under 8 U.S.C. § 1503(a), she may accomplish this directly through de 24 novo review in the federal district court where she resides (i.e., the Northern District of 25 California). This constitutes an adequate alternative remedy to achieve plaintiff’s desired 26 relief.”). 27 Plaintiff opposes defendants’ motion to dismiss by relying on Saleh v. Pompeo, 393 28 F.Supp.3d 172 (E.D. N.Y. 2019), for the proposition that plaintiff may maintain an APA claim 1 because defendants allegedly “abused their discretion” and “made no finding of non-citizenship.” 2 (Pl.’s Opp.’n (ECF No. 28) at 4.) In Saleh, the plaintiff alleged that the government violated the 3 APA “by revoking his passport arbitrarily and capriciously.” 393 F.Supp.3d at 172. The court 4 adopted findings and recommendations finding that the plaintiff had set forth plausible facts to 5 demonstrate “that his passport was issued in error, entitling Mr. Saleh to APA review.” (Id. at 6 181.) 7 The court in Saleh, however, noted that there were “crucial differences” distinguishing the 8 case from other actions, “[f]irst and foremost,” that “Saleh’s passport was explicitly revoked” 9 based on a finding that the passport was obtained illegally, fraudulently, or erroneously. (Id. at 10 180 (emphasis in original)). “Second, Saleh was offered an administrative hearing[.]” (Id.) 11 Here, this action does not concern the revocation of a passport. There are no allegations related to 12 illegality, fraud, or error. Nor are there allegations, or evidence, establishing that plaintiff was 13 offered an administrative hearing. 14 Instead, the amended complaint alleges that plaintiff was born in the United States, lives 15 in the United States, and seeks “an order compelling the San Francisco Passport Agency to issue 16 her a United States passport because she is a United States citizen[.]” (Am. Compl. (ECF No. 21) 17 at 2-3.) A person located in the United States, claiming to be a United States citizen, and seeking 18 a passport “is exactly the relief provided for by 8 U.S.C. § 1503.” Esparza v. Clinton, No. 6:12- 19 cv-925-AA, 2012 WL 6738281, at *1 (D. Or. Dec. 21, 2012); see also Hassan v. Holder, 793 20 F.Supp.2d 440, 446 (D. D.C. 2011) (“Thus, section 1503(a) provides an adequate alternative 21 remedy.”). Defendants’ partial motion to dismiss plaintiff’s APA claim, therefore, will also be 22 granted. 23 II. Further Leave to Amend 24 The court has carefully considered whether plaintiff may further amend the complaint to 25 correct the deficiencies noted above. “Valid reasons for denying leave to amend include undue 26 delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan 27 Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath 28 Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall 1 be freely given, the court does not have to allow futile amendments). Here, the court finds that 2 granting plaintiff further leave to amend would be futile. 3 CONCLUSION 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. Defendants’ January 23, 2023 partial motion to dismiss (ECF No. 26) is granted; 6 2. The amended complaint’s APA claim and request for injunctive relief are dismissed; 7 3. Defendants Pamela Hack, the United States Department of State, the San Francisco 8 Passport Agency, the Bureau of Diplomatic Security, and the United States Diplomatic Security 9 Service are dismissed; 10 4. A Status (Pretrial Scheduling) Conference is set for Friday, September 1, 2023, at 11 10:00 a.m., at the United States District Court, 501 I Street, Sacramento, California, in 12 Courtroom No. 27, before the undersigned;3 13 5. Plaintiff shall file and serve a status report on or before August 18, 2023, and 14 defendant shall file and serve a status report on or before August 25, 2023. Each party’s status 15 report shall address all of the following matters: 16 a. Progress of service of process; 17 b. Possible joinder of additional parties; 18 c. Possible amendment of the pleadings; 19 d. Jurisdiction and venue; 20 3 Parties shall appear at the Status Conference either telephonically or over video conference 21 through the Zoom application (which is free and must be downloaded to your computer or mobile device prior to the hearing). Parties proceeding in propria persona, on his or her own behalf, shall 22 contact Shelly Her, the courtroom deputy of the undersigned magistrate judge at (916) 930-4128, 23 no sooner than 4 days prior to the noticed or continued hearing date but no later than 48 hours prior to the hearing, to arrange their appearance either telephonically or over video conference. 24 Counsel will receive an email containing the necessary appearance information and must notify the courtroom deputy no later than 48 hours prior to the hearing to elect to appear either 25 telephonically or over video conference. The Zoom ID Number and password are confidential and are not to be given to anyone. Persons granted remote access to these proceedings, whether 26 by Zoom or by telephone, are reminded of the general prohibition against photographing, 27 recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, restricted entry to future hearings, denial of entry to future hearings, or any other 28 sanctions deemed necessary by the court. 1 e. Anticipated motions and the scheduling thereof; 2 f. Anticipated discovery and the scheduling thereof, including 4 disclosure of expert witnesses; g. Future proceedings, including the setting of appropriate cut-off 4 dates for discovery and for law and motion, and the scheduling of a 5 final pretrial conference and trial; h. Modification of standard pretrial procedures specified by the rules 6 due to the relative simplicity or complexity of the action; 7 1. Whether the case is related to any other case, including matters in 3 bankruptcy; j. Whether the parties will stipulate to the magistrate judge assigned 9 to this matter acting as settlement judge, waiving any disqualification by virtue of her so acting, or whether they prefer to 10 have a Settlement Conference before another magistrate judge; and 11 k. Any other matters that may aid in the just and expeditious D disposition of this action.

13 6. The parties are cautioned that failure to file a status report or failure to appear at the 14 || status conference may result in an order imposing an appropriate sanction. See Local Rules 110 15 and 183. 16 | Dated: June 24, 2023 17 18 19 ORAH BARNES

UNITED STATES MAGISTRATE JUDGE

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