Case: 17-40305      Document: 00514559001         Page: 1    Date Filed: 07/17/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                        Fifth Circuit

                                                                                      FILED
                                                                                   July 17, 2018
                                      No. 17-40305
                                                                                   Lyle W. Cayce
                                                                                        Clerk

MARIA GEORGINA DE LA GARZA GUTIERREZ; MARIA GUADALUPE
DE LA GARZA MONTEMAYOR,

                                                 Plaintiffs - Appellants
v.

MIKE POMPEO, SECRETARY, U.S. DEPARTMENT OF STATE; UNITED
STATES OF AMERICA,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:16-CV-223


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       IT IS ORDERED that the opinion previously filed in this case, Gutierrez
v. Pompeo, No. 17-40305, — F. App’x —, 

(5th Cir. July 11,
2018), is WITHDRAWN. The following opinion is substituted therefor:
       The U.S. Department of State refused to renew the plaintiffs’ passports,
claiming that their birth records had been falsified and that they were not U.S.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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citizens. The plaintiffs sued the Secretary of State and the United States under
the Administrative Procedure Act. The district court determined that 8 U.S.C.
§ 1503 provided an adequate alternative remedy to review under the
Administrative Procedure Act and therefore dismissed for lack of subject
matter jurisdiction. The district court also denied the plaintiffs’ motion for
leave to amend their complaint to add causes of action under § 1503. It instead
required them to abandon their existing causes of action and allege only § 1503
claims. We agree with the district court that it lacked subject matter
jurisdiction to hear the plaintiffs’ Administrative Procedure Act claims but
conclude that it abused its discretion by denying leave to amend to add § 1503
claims. We therefore AFFIRM in part, REVERSE in part, and REMAND.
                                             I.
       Maria Georgina De La Garza Gutierrez (“De La Garza”) and Maria
Guadalupe De La Garza Montemayor (“Montemayor”) are sisters. According to
their complaint, 1 De La Garza and Montemayor were born in Brownsville,
Texas, in March 1952 and March 1950, respectively. Both were baptized in
Brownsville, but their father registered the births in Mexico. Later, on
April 15, 1954, the sisters’ parents also registered their births in Brownsville.
       Both sisters’ passports were set to expire in 2016, and they applied to
renew them in 2015. Upon applying, each sister received a letter from the U.S.
Department of State alleging that their birth records had been filed by a birth
attendant suspected of submitting false birth records and asking them for
further information to establish their U.S. citizenship. The State Department




       1 This factual summary is drawn from the complaint. As the district court based its
dismissal solely on the facts alleged in the complaint, we accept the sisters’ allegations as
true. Lee v. Verizon Commc’ns, Inc., 

, 533 (5th Cir. 2016), cert. denied sub nom.
Pundt v. Verizon Commc’ns, Inc., 

(2017).
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formally denied both applications on October 28, 2016—that is, only after both
passports had expired and after the sisters had filed this lawsuit.
      Montemayor was in the United States when the complaint was filed but
planned to join her ailing husband in Mexico after filing the amended
complaint. De La Garza is a resident of San Benito, Texas.
      On August 24, 2016, De La Garza sued the Secretary of State and the
United States 2 in the U.S. District Court for the Southern District of Texas.
Two days later, she amended her complaint to add Montemayor as a plaintiff.
The sisters alleged causes of action under the Administrative Procedure Act
(“APA”), Pub. L. No. 404, 60 Stat. 237 (1946) (codified as amended in scattered
sections of 5 U.S.C.). They also sought a declaration of U.S. citizenship under
the Declaratory Judgment Act, 28 U.S.C. § 2201. The Government filed a
motion to dismiss under Federal Rule of Civil Procedure 12(b)(1). It argued
that 8 U.S.C. § 1503 provided an adequate alternative remedy to APA review,
thus depriving the district court of subject matter jurisdiction.
      The district court held a telephone conference on February 9, 2016,
which was neither transcribed nor recorded. After that conference, the sisters
moved for leave to amend their complaint to add claims under § 1503. The
district court denied the sisters’ motion and directed them to file an amended
complaint asserting only a § 1503 cause of action. The court advised the sisters
that if they elected not to amend their complaint, it would rule on the motion
to dismiss. The sisters informed the court that they did not wish to waive their
APA claims, that they would not amend their complaint, and that they would
instead file a new action limited to § 1503.
      The district court granted the motion to dismiss. It held that § 1503
provided an adequate alternative remedy to the APA, thereby depriving the


      2   We refer to the defendants in this lawsuit collectively as the “Government.”
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court of subject matter jurisdiction. The court also held that neither the
federal-question statute nor the Declaratory Judgment Act provided
jurisdiction. 3 And the court dismissed the United States as an improper party
under § 1503, which authorizes an action against the head of a department or
agency only. The sisters timely appealed. This appeal was held in abeyance
pending a decision in Hinojosa v. Horn, No. 17-40077. The court issued an
opinion in that case on May 8, 2018. Hinojosa v. Horn, No. 17-40077, 

(5th Cir. May 8, 2018) (per curiam).
                                              II.
      We first consider the district court’s dismissal of the sisters’ APA claims
for lack of subject matter jurisdiction. Consistent with this court’s recent
decision in Hinojosa, we conclude that 8 U.S.C. § 1503 provides an adequate
alternative remedy to APA review and that the district court therefore lacked
subject matter jurisdiction to hear the sisters’ APA claims.
                                              A.
      We review a dismissal for lack of subject matter jurisdiction under Rule
12(b)(1) de novo. Lee v. Verizon Commc’ns, Inc., 

, 533 (5th Cir.
2016), cert. denied sub nom. Pundt v. Verizon Commc’ns, Inc., 

(2017). Where, as here, the district court based its decision strictly on the
allegations of the complaint, we presume those allegations to be true. 

the APA, “[a] person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency action within the meaning
of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702.
Section 702 waives the Government’s sovereign immunity. See Alabama-
Coushatta Tribe of Tex. v. United States, 

, 488 (5th Cir. 2014). But


      3   The sisters do not address these holdings on appeal.
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the waiver is a limited one. It applies only to “actions against federal
government agencies, seeking nonmonetary relief, if the agency conduct is
otherwise subject to judicial review.” 

v. Army & Air Force
Exch. Serv., 

, 1139 (5th Cir. 1980), rev’d on other grounds, 

(1982)). There are additional limits on the waiver. Relevant to this
case is the one found in 5 U.S.C. § 704. That section restricts judicial review
under the APA to “final agency action for which there is no other adequate
remedy in a court.” 5 U.S.C. § 704; see Jobs, Training & Servs., Inc. v. E. Tex.
Council of Gov’ts, 

, 1323 n.3 (5th Cir. 1995).
      Section 704 reflects Congress’s intent that “the general grant of review
in the APA [not] duplicate existing procedures for review of agency action.”
Bowen v. Massachusetts, 

, 903 (1988). The alternative remedy
need only be “adequate.” See Garcia v. Vilsack, 

, 525 (D.C. Cir.
2009). Section 704 does not require that the alternative be “as effective as an
APA lawsuit,” merely that it provide the “same genre” of relief. Id.; compare

(concluding that an alternative remedy in the
Claims Court was inadequate because the Claims Court lacked the power to
grant equitable relief), with Citizens for Responsibility & Ethics in Wash. v.
U.S. Dep’t of Justice, 

, 1245-46 (D.C. Cir. 2017) (concluding that
the Freedom of Information Act was adequate alternative remedy even though
it only provided for making documents available to the plaintiff and the
plaintiff also sought an order making documents available to public). Although
the alternative remedy must provide for review in the plaintiff’s direct appeal,
it may nonetheless require multiple steps to get there. See Hinojosa, 

, at *3 (first citing Sackett v. EPA, 

, 127 (2012); then citing
Dresser v. Meba Med. & Benefits Plan, 

, 710-11 (5th Cir. 2010)).
Still, a plaintiff need not pursue a remedy whose existence is “doubtful” or
“uncertain.” Citizens for 

. Nor is the plaintiff
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required to run the risk of enforcement proceedings or pursue an “arduous,
expensive, and long” permitting process to seek review of an already-final
agency action. U.S. Army Corps of Eng’rs v. Hawkes Co., 

, 1815
(2016).
       Because both sisters were inside the United States when they filed their
complaint, our review would normally focus solely on 8 U.S.C. § 1503(a). That
section empowers a person inside the United States to seek a declaratory
judgment that the person is a U.S. national in the face of an agency decision
declaring otherwise. 4 The complaint alleged, however, that Montemayor
intended to go to Mexico immediately after filing, and counsel on appeal has
represented that Montemayor did indeed depart for Mexico after filing. Thus,
we will also consider the procedures in 8 U.S.C. § 1503(b)-(c), which apply to
persons “not within the United States.”
       A person not within the United States must first apply to “a diplomatic
or consular officer of the United States” for a certificate of identity. 

The officer “shall issue” the certificate “[u]pon proof to the
satisfaction of such . . . officer that such application is made in good faith and
has a substantial basis.” 

If the officer declines to issue
the certificate, the applicant is “entitled to an appeal to the Secretary of State,”

may be challenged under the APA, see Hinojosa, 

, at *5. The certificate, if granted, allows the person to travel to a U.S.
port of entry and apply for admission. 8 U.S.C. § 1503(b)-(c). If denied, then the
person is treated as an arriving alien and may seek “[a] final determination by



       4 See 8 U.S.C. § 1503(a) (“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 under the provisions of
section 2201 of Title 28 against the head of such department or independent agency for a
judgment declaring him to be a national of the United States . . . .”).
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the Attorney General,” “subject to review . . . in habeas corpus proceedings and
not otherwise.” 

If admission is granted, then the person will be
within the United States and therefore able to seek a declaratory judgment
under § 1503(a). See Hinojosa, 

, at *4.
      We find the reasoning of Hinojosa persuasive and adopt it. See United
States v. Velasquez, 

, 259 (5th Cir. 2016) (citing 5th Cir. R. 47.5.4).
In that case, we held that § 1503 provided an adequate alternative remedy to
the APA. See Hinojosa, 

, at *6. We first explained that “the
wrong to be remedied is the deprivation of U.S. passports”—precisely the type
of wrong sought to be remedied by § 1503, which applies the denial of “a right
or privilege . . . upon the ground that [t]he [person] is not a national of the
United States.” See 

We then considered the plaintiffs’ two avenues
for relief: a declaratory judgment action under § 1503(a) if admitted and a
petition for a writ of habeas corpus under § 1503(c) if not. See 

Both
forums directly address the plaintiffs’ claims to citizenship and would
“overturn the basis for the deprivation of their U.S. passports.” 

a “direct and guaranteed path to judicial review,” that “comprises
‘both agency obligations and a mechanism for judicial enforcement.’” 

for 

).
      We also distinguished Rusk v. Cort, see 

in which the Supreme
Court held that a U.S. citizen stripped of his citizenship while living abroad
could challenge the denial of his passport under the APA. See 

,
379-80 (1962), abrogated in part by Califano v. Sanders, 

(1977).
We noted that “the Rusk Court never explicitly discusses the adequacy
requirement of the APA, and Rusk has rarely been relied on by either the
Supreme Court or this Court when discussing it.” See Hinojosa, 

, at *5. Moreover, Rusk, we determined, was distinguishable. See 

The plaintiff in Rusk lived in Europe. See 

(citing Rusk, 

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at 369). He had been criminally indicted and risked arrest and prosecution if
he sought entry to challenge the denial of his passport under § 1503. See 

369 U.S. at 369, 375-79). Such was not the case in Hinojosa. The
plaintiffs faced a “far less treacherous” path to judicial review: neither had
been criminally indicted and both were at the U.S. border seeking entry. See

is true here. According to the complaint, De La Garza is
already in the United States and can therefore simply file a declaratory
judgment action under § 1503(a). 5 Counsel has represented to us that
Montemayor has departed for Mexico. But there is no indication that she has
been criminally indicted or that she seeks to avoid reentry into the United
States like the Rusk plaintiff. 6
       We therefore conclude that § 1503 provides an adequate alternative
remedy to APA review. The district court therefore correctly dismissed the
sisters’ APA claims.
                                              III.
       We reach a different conclusion with respect to the denial of leave to
amend. The sisters moved for leave to amend their complaint to add a cause of




       5  The sisters’ brief on appeal repeatedly argues that § 1503(a) does not provide an
adequate alternative to the APA because it provides for de novo review of the agency decision.
We fail to see how that undercuts the case that § 1503(a) is an adequate alternative. “[R]elief
will be deemed adequate ‘where a statute affords an opportunity for de novo district-court
review’ of the agency action.” 

(quoting El Rio Santa Cruz
Neighborhood Health Ctr. v. U.S. Dep’t of Health & Human Servs., 

, 1270 (D.C.
Cir. 2005)). This is because “[a]n alternative that provides for de novo district-court review of
the challenged agency action offers further evidence of Congress’ will [to bar APA review],
given the frequent “incompat[ibility]” between de novo review and the APA’s deferential
standards.” Citizens for 

; see also 5 U.S.C. § 706 (providing
standards of review in APA proceedings).
        6 As we explain in the following section, we leave it to the district court to decide in

the first instance whether Montemayor may seek a declaratory judgment under § 1503(a)
notwithstanding her post-complaint departure from the United States.
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action under § 1503 after the district court indicated its intention to dismiss
their APA claims. But the district court conditioned leave to amend on the
sisters’ abandonment of their APA claims, leading the sisters to instead decline
to amend and pursue their § 1503 claims in a separate action. That, we hold,
was error.
                                        A.
      This court reviews the denial of a motion for leave to amend a complaint
for abuse of discretion. Edionwe v. Bailey, 

, 291 (5th Cir. 2017).
Abuse of discretion is normally a generous standard, requiring only that the
district court’s judgment be reasonable. 

Under Rule 15, however,
“the district court’s discretion is considerably less.” 

(quoting
Rosenzweig v. Azurix Corp., 

, 863 (5th Cir. 2003)). This is because
“[t]he court should freely give leave [to amend] when justice so requires.” Fed.
R. Civ. P. 15(a)(2). The court’s authority to deny leave is therefore
circumscribed:
      In fact, the Supreme Court has enumerated just “five
      considerations in determining whether to deny leave to amend a
      complaint: ‘undue delay, bad faith or dilatory motive on the part of
      the movant, repeated failure to cure deficiencies by amendments
      previously allowed, undue prejudice to the opposing party by
      virtue of the allowance of the amendment, [and] futility of the
      amendment.’”

(quoting 

). “Absent such
factors, the leave sought should, as the rules require, be freely given.” Id.
(quoting 

).
                                        B.
      The district court abused its discretion because none of the factors
justified denial of leave to amend.
      The district court appears to have viewed the APA claims as frivolous
and the § 1503(a) claims as non-frivolous. As a result, it conditioned the sisters’
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                                No. 17-40305
amendment of their complaint to assert a non-frivolous cause of action on their
abandonment of the frivolous one. Although a district court may deny leave to
amend a complaint to assert futile or frivolous claims, Martin’s Herend
Imports, Inc. v. Diamond & Gem Trading U.S. Co., 

, 771 (5th Cir.
1999), denial of leave to amend is improper where the amendment adds claims
that are not clearly futile, 6 Charles Alan Wright et al., Federal Practice and
Procedure § 1487 (3d ed. 2010). Here, the claims that the district court deemed
meritless were not additions, they were already in the complaint. Thus, the
sisters were amending their complaint solely to add non-frivolous claims.
      Under the circumstances, there was no justification for conditioning
leave to amend on the abandonment of the APA claims. The district court’s
refusal to grant leave to amend required the sisters to choose between
abandoning their APA claims and having their case dismissed. Opting for the
former risked waiving any appeal of an issue on which there was no controlling
circuit precedent. Although the district court had indicated its inclination to
dismiss the APA claims during a telephone conference, that telephone
conference was neither transcribed nor recorded. The district court during that
telephone conference only indicated that it was inclined to grant the motion to
dismiss but did not actually rule on it. Thus, the sisters lacked a ruling from
the district court that would be appealable upon entry of final judgment.
      Moreover, no other factor justified denial of leave to amend. The sisters
did not unduly delay moving to amend: they filed their motion just four days
after the February 9 conference, at which point the case was less than six
months old and had not proceeded past the motion to dismiss stage. There is
no evidence of bad faith or a dilatory motive—indeed, the district court
expressly permitted the sisters to file an amended complaint and they did so
promptly. The sisters had previously amended only once as of right. There is
no undue prejudice to the Government, especially since the Government
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                                         No. 17-40305
insisted both below and in this court that § 1503(a) provided the proper cause
of action for the sisters. Cf. Farias v. Bexar Cty. Bd. of Trs. for Mental Health
Mental Retardation Servs., 

, 874 (5th Cir. 1991) (holding no undue
prejudice to plaintiff where amended answer filed one month before trial
contained new affirmative defenses of which plaintiff was already on notice).
The Government suggests that the district court’s denial was justified by the
sisters’ repeated refusal to follow the district court’s instructions. However, the
sisters only sought to preserve for appeal their argument that they could seek
review under the APA. See Cranford v. Morgan S., Inc., 421 F. App’x 354, 357
(5th Cir. 2011) (refusing to consider on appeal motion that party abandoned in
district court).
       Accordingly, the district court erred by conditioning leave to amend on
the sisters’ abandonment of their APA claims and denying leave to amend to
add § 1503 claims. 7
                                               IV.
       For the foregoing reasons, we AFFIRM the district court’s dismissal of
the sisters’ APA claims. However, we REVERSE the denial of the motion for
leave to amend and REMAND to the district court for further proceedings.




       7 The sisters have since filed separate actions under § 1503. We leave it to them to
decide whether to maintain their separate actions or instead to amend their complaint in this
action to assert claims under § 1503. We also leave it to the district court to decide in the first
instance whether Montemayor may assert a cause of action under § 1503(a) because she was
within the United States when she filed her complaint.
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JAMES L. DENNIS, Circuit Judge, concurring in part and concurring in the
judgment:
      I write separately because, though I acknowledge that Hinojosa v. Horn,
No. 17-40077, 

(5th Cir. May 8, 2018), is binding on this
panel, I continue to adhere strongly to the dissenting views I expressed therein.
To the extent that Montemayor would be required to comply with 8 U.S.C.
§ 1503(b)–(c), I reiterate my view that § 1503(b)–(c) does not provide an
adequate remedy for persons outside of the United States who do not seek
admission to the country prior to a determination of citizenship. See Hinojosa,

, at *9–12 (Dennis, J., dissenting). If Montemayor does not
seek to enter the United States before challenging her citizenship
determination, she should be entitled to seek judicial review pursuant to the
Administrative    Procedure   Act     without   complying   with   § 1503(b)–(c).
Accordingly, I concur only in the judgment with respect to Montemayor’s APA
claim. Otherwise, I concur in full.




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