Veronica Martinez de Esparza v. John Kerry ( 2014 )

Case: 13-40166 Document: 00512464607 Page: 1 Date Filed: 12/09/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-40166
FILED
December 9, 2013
Summary Calendar
Lyle W. Cayce
Clerk
VERONICA MARTINEZ DE ESPARZA,
Petitioner - Appellant
v.
JOHN KERRY, Secretary of State; UNITED STATES OF AMERICA,
Respondents - Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CV-24
Before KING, BARKSDALE, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Veronica Martinez de Esparza applied for a United States passport in June
2008. After the Department of State (DOS) denied her application, in 2009
Martinez filed this action under 8 U.S.C. § 1503(a), which provides for declaratory
relief from a final agency determination denying any right or privilege as a
national of the United States, upon grounds of citizenship. In November 2012,
DOS determined Martinez met her burden of proof to establish her United States
citizenship and issued her a passport. As a result, DOS moved to dismiss this
*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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-40166 Document: 00512464607 Page: 2 Date Filed: 12/09/2013
No. 13-40166
action on the grounds that the issuance of the passport mooted Martinez’ claim
for a declaration of citizenship under § 1503(a). Martinez challenges the district
court’s granting the dismissal motion.
Martinez contends the district court erred in concluding her action was
moot because DOS issued her a passport. She contends that DOS and Border
Patrol Agents have the authority to revoke or confiscate a passport without prior
notice or hearing. For that reason, she maintains she has a concrete interest in
obtaining a declaration of citizenship under § 1503(a), which will not expire and
can only be rescinded or modified pursuant to Federal Rule of Civil Procedure 60.
Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of
subject matter jurisdiction is reviewed de novo. E.g., Ramming v. United States,
281 F.3d 158, 161 (5th Cir. 2001). Martinez bears the burden of proof to show
jurisdiction exists. Id.
“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).” Garcia v. Freeman, No. 12-41458, 2013 WL 5670856, at *1 (5th
Cir. 18 Oct. 2013) (citation omitted); 8 U.S.C. § 1503(a). Actions under § 1503(a)
“may be instituted only within five years after the final administrative denial of
such right or privilege”. Garcia, 2013 WL 5670856, at *1 (quoting 8 U.S.C.
§ 1503(a)(2) (emphasis added)) (citation omitted). “The requisite personal interest
that must exist at the commencement of litigation (standing) must continue
throughout its existence (mootness).” Id. (quoting Moore v. Hosemann, 591 F.3d
741, 744 (5th Cir. 2009)). “Generally, any set of circumstances that eliminates
[the] actual controversy after the commencement of a lawsuit renders that action
moot.” Id. (In her reply brief, Martinez concedes she is not asserting that an
exception to the mootness doctrine applies.)
“A district court does not have jurisdiction to review claims under § 1503(a)
where plaintiff has not been denied a right or privilege as a national of the United
States pursuant to a final administrative determination.” Id. (citations omitted).
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No. 13-40166
Martinez has not shown she was denied a right or privilege as a United States
national as a result of DOS’ decision to issue her a passport because it may be
used as evidence of her citizenship during its period of validity. Id. (citations
omitted). Martinez’ contention that she still has a concrete interest in obtaining
a declaration of citizenship fails for the same reason the plaintiff’s contention in
Garcia failed. “[E]ssentially, she seeks an advisory opinion that could be used in
the event an official challenges her citizenship in the future”. Id. DOS issued
Martinez a United States passport, and, therefore, she has not been denied a right
or privilege of a United States national.
AFFIRMED.
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