Cheyne Parham v. Hillary Clinton

Case: 09-20681 Document: 00511054185 Page: 1 Date Filed: 03/17/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

March 17, 2010

No. 09-20681 Charles R. Fulbruge III

Summary Calendar Clerk

CAPTAIN CHEYNE PARHAM, Individually and as Next Friend of M.E.

Parham and E.J. Parham; MARY JOY PINGCA PARHAM; M.E. PARHAM;

E.J. PARHAM,

Plaintiffs - Appellants

v.

SECRETARY HILLARY CLINTON, Secretary of State of the United States;

EDWARD BETANCOURT, In His Official Capacity; LISA MOOTY, In Her

Official Capacity and Individual Capacity,

Defendants - Appellees

Appeal from the United States District Court for the

Southern District of Texas

U.S.D.C. No. 4:09-CV-1105

Before REAVLEY, JOLLY, and OWEN, Circuit Judges.

PER CURIAM:*

*

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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No. 09-20681

Appellants seek reversal of the district court's order dismissing their case

on the pleadings for lack of jurisdiction and alternatively for failure to state a

claim. Having reviewed the district court's order and the record, we find no

error and affirm.

We review a district court's order dismissing a case on the pleadings de

novo. See LeClerc v. Webb, 419 F.3d 405, 413 (5th Cir. 2005).

Appellants first argue that the district court erred in determining that it

had no jurisdiction over their claims for citizenship. Specifically, they argue that

jurisdiction exists to declare M.E. and E.J. citizens of the United States

pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201. However, as the

district court properly held, declaratory relief under § 2201 is appropriate only

when there exists an independent basis for jurisdiction. See Simi Inv. Co. v.

Harris County, Tex., 236 F.3d 240, 247 (5th Cir. 2000) (noting "that Declaratory

Judgment Act claims, without another basis for jurisdiction, cannot support the

district court's jurisdiction"). While Appellants' complaint cites to various

federal statutes and constitutional amendments, the district court properly held

that none of these statutes or provisions create a jurisdictional nexus to an

alleged harm based on Appellants' pleaded facts.1

The only statute brought to our attention that conceivably provides

jurisdiction for persons in Appellants' circumstances is 8 U.S.C. § 1503.

However, both parties acknowledge that Appellees must issue a final

administrative decision before Appellants may seek judicial review under this

1

The court properly held, for example, that 42 U.S.C. § 1983 and 18 U.S.C. § 242

provide no jurisdiction over the acts of federal agencies, as the former is reserved for

constitutional claims against state actors, and the latter is a criminal statute with no

correlating civil cause of action. Appellants have conceded these arguments and have not

raised them on appeal. In addition, the district court properly held that Appellants have failed

to plead or argue the necessary elements for mandamus under 28 U.S.C. § 1361. See also

Cartier v. Sec'y of State, 506 F.2d 191, 200 (D.C. Cir. 1974) (mandamus inappropriate when

remedies available pursuant to 8 U.S.C. § 1503).

2

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statute. At the time Appellants filed their case in the district court, they had

received no final administrative decision regarding their petitions for Consular

Reports of Birth Abroad ("CRBA"). Therefore, there had been no denial of a

"right or privilege" based on a claim of citizenship pursuant to § 1503.2

Accordingly, the district court properly concluded that it lacked jurisdiction to

review Appellants' claims.3

Appellants also cite Miller v. Albright, 523 U.S. 420, 118 S. Ct. 1428

(1998), to support their argument that the district court has jurisdiction over

their claims of citizenship and for declaratory relief. However, Miller is readily

distinguishable from the instant case. In Miller, a woman who had been born

out of wedlock to an American service member and a Filipina woman challenged

the constitutionality of the gender-specific requirements for proof of paternity

2

It is unclear whether § 1503(a) or § 1503(b) would be the more appropriate vehicle to

contest a final agency decision in Appellants' circumstances. The district court reviewed

Appellants' claim under § 1503(a), which provides for declaratory relief pursuant to 28 U.S.C.

§ 2201 from a final agency decision denying a right or privilege conditioned on a claim of

citizenship for "any person who is within the United States . . . ." See § 1503(a). Despite this

plain language limiting § 1503(a) to persons within the United States, the Supreme Court has

interpreted § 1503(a) to allow declaratory relief for plaintiffs outside the United States. See

Rusk v. Cort, 369 U.S. 367, 372, 82 S. Ct. 787, 790 (1962), abrogation on other grounds

recognized by Califano v. Sanders, 430 U.S. 99, 105, 97 S. Ct. 980, 984 (1977); see also Kahane

v. Sec'y of State, 700 F. Supp. 1162, 1165 n.3 (D.D.C. 1988) (citing Rusk for the proposition

that "[p]ersons outside the United States may sue under § 1503(a) to establish United States

citizenship"). Meanwhile, § 1503(b) refers specifically to "any person who is not within the

United States" and applies to "a person under sixteen years of age who was born abroad of a

United States citizen parent." § 1503(b). E.J. and M.E. are currently in the Philippines and

claim to be "born of" Captain Parham, a United States citizen. Thus, § 1503(b) appears to be

the more appropriate fit. However, we need not decide which of these two provisions is

appropriate. Both provisions contemplate a final agency decision before judicial review is

available. See § 1503(a)-(b). Accordingly, judicial review is currently inappropriate under

either provision.

3

Both parties have stated in their appellate briefs that the State Department issued

a decision denying Appellants' petition for CRBAs after the district court granted Appellees'

motion to dismiss. We express no opinion as to whether this agency decision makes this

controversy now ripe for adjudication. The agency's decision, whatever it is, is not included

in the record, it is not cited in the complaint as the basis for any cause of action, and it did not

form part of the district court's reasoning when it properly dismissed the case.

3

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in 8 U.S.C. § 1409(a)(4). Id. at 432, 118 S. Ct. at 1436. As a threshold issue, the

Court stated that the woman had standing to invoke the jurisdiction of the

federal courts because a "judgment in her favor would confirm her pre-existing

citizenship rather than grant her rights that she does not now possess." Id.

Standing, however, is only half of the jurisdictional question before us. Even

assuming that M.E. and E.J. are citizens with the proper standing to contest

Appellees' allegedly unconstitutional procedures and requirements, Appellants

have yet to assert a claim that is ripe for adjudication. See LeClerc, 419 F.3d at

413-14 (requiring both standing and ripeness as grounds for Article III

jurisdiction). In Miller, the plaintiff had applied for registration as a United

States citizen and the application had been denied four months later. See Miller

v. Christopher, 870 F. Supp. 1, 1-2 (D.D.C. 1994). That denial was subsequently

upheld eight months after that. Id. at 2. In contrast, Appellants' complaint

shows that when Appellants brought their claim in April 2009, their petition for

CRBAs had not been denied but had been pending for less than four months.

Therefore, inasmuch as Miller provides grounds for M.E. and E.J. to challenge

the constitutionality of Appellees' procedures, it still only does so once

Appellants have a final agency decision to contest (and arguably after they have

complied with the other relevant provisions in § 1503). As Appellants had no

final decision from Appellees at the time they filed their complaint, we need not

express an opinion on whether Miller would otherwise confer jurisdiction.

Appellants next argue that the district court erred in not permitting them

to replead their causes of action to correct any purported deficiencies. Federal

Rule of Civil Procedure 15(a) allows plaintiffs to amend their pleadings once as

a matter of course within a certain time, and then subsequently "when justice

so requires." See F ED. R. C IV. P. 15(a). However, a "'bare request in an

opposition to a motion to dismiss – without any indication of the particular

grounds on which the amendment is sought . . . does not constitute a motion

4

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within the contemplation of Rule 15(a).'" U.S. ex rel. Willard v. Humana Health

Plan of Tex. Inc., 336 F.3d 375, 387 (5th Cir. 2003) (quoting Confederate Mem'l

Ass'n, Inc. v. Hines, 995 F.2d 295, 299 (D.C. Cir. 1993)). Appellants never filed

a motion to amend their complaint pursuant to Rule 15(a) but merely stated in

their response to Appellees' motion to dismiss that "should the Court find that

Plaintiff's [sic] pleadings fail to fully notice Defendant [sic] of Plaintiff's [sic]

complaints, Plaintiff [sic] requests leave to amend Plaintiffs' [sic] pleadings to

more fully develop the issues before the court." We hold this to be insufficient

to constitute a motion to amend under Rule 15(a). See id. Therefore, the district

court did not err in not allowing Appellants to amend their complaint.

Finally, Appellants argue that they maintain a claim for state-law

defamation against Appellee Lisa Mooty in her individual capacity.4 However,

the district court properly disposed of Appellants' defamation claims as being

barred by sovereign immunity and outside the limited waiver of the Federal Tort

Claims Act, 28 U.S.C. § 2679. As to claims against Mooty in her individual

capacity, the district court properly held that any defamation claim pursuant to

Bivens v. Six Unknown Named Narcotics Agents of Federal Bureau of Narcotics,

403 U.S. 388, 91 S. Ct. 1999 (1971), also failed because there is no constitutional

right to be free from defamation. See Siegert v. Gilley, 500 U.S. 226, 234, 111 S.

Ct. 1789, 1794 (1991) (holding that defamation resulting in damage to a person's

reputation "is not recoverable in a Bivens action"). Appellants do not dispute the

district court's ruling on sovereign immunity or the FTCA, nor do they provide

any argument why the district court erred in not finding a Bivens claim.

Instead, Appellants argue for the first time on appeal that Mooty acted outside

the scope of her employment in making the alleged defamatory comments. We

will not consider arguments that do not have a factual basis in the pleadings and

4

It is unclear from the complaint under which state law the claims arise.

5

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that are raised for the first time on appeal.5 See Yohey v. Collins, 985 F.2d 222,

225 (5th Cir. 1993) (citing United States v. Garcia-Pillado, 898 F.2d 36, 39 (5th

Cir. 1990)).

AFFIRMED.

5

Were we to consider Appellants' scope of employment argument on the merits, it

would nonetheless fail. According to the complaint, Ms. Mooty's job was to determine whether

individuals such as M.E. and E.J. were eligible for United States citizenship based on their

familial relationship to a United States citizen pursuant to 8 U.S.C. § 1401(g). The complaint

further states that the only alleged defamatory statements that Ms. Mooty personally made

were in a phone call to Captain Parham when he was stationed in Kentucky. Such statements

concerned only Captain Parham and Mary Joy, who was then in the Philippines. Assuming

a claim for defamation exists under these circumstances that is cognizable in this court, any

statements Ms. Mooty may have made expressing doubt in the twins' familial relationship

with Captain Parham clearly fell within her scope of employment.

6