United States District Court, S.D. Texas, Brownsville Division
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
Rolando Olvera United States District Judge
case arises from the government's motion to dismiss Jose
Cruz Castillo's (hereafter "Plaintiff)
"Complaint for Declaratory and Injunctive Relief (Docket
No. 1) under 28 U.S.C. §1331 (federal question) and 8
U.S.C. §1503 (denial of rights and privileges as a U.S.
Citizen). Currently before the court is the Magistrate
Judge's "Report and Recommendations, " (Docket
No. 16) recommending this Court grant "Defendant's
Motion to Dismiss" (Docket No. 7). After a de novo
review of the file, the Magistrate Judge's "Report
and Recommendation" is ADOPTED.
FACTUAL BACKGROUND 
Complaint states he was born in Houston, Texas, November 3
1989. Fearing Plaintiff would not receive adequate medical
treatment, his parents returned to Mexico without registering
Plaintiffs birth in the U.S.; the family remained in Mexico
until returning to the U.S. in December 1992. Thereafter,
Plaintiff was baptized in Houston, Texas, July 20, 1994.
Plaintiffs birth was later registered in Texas in 1994.
Plaintiffs parents have resided in Texas since December 1992.
applied for a U.S. Passport in 2008, which was denied August
5, 2009. A second application was filed January 31, 2012;
said second application was denied August 23, 2012. Each
passport application listed Plaintiffs permanent address as
156 Milgray Lane, Calera, Alabama. Records from the
University of Alabama-Birmingham (UAB) demonstrate Plaintiff
applied to the university listing the same Calera, Alabama
mailing address as the permanent address listed in both his
2008 and 2012 passport applications.
graduating from UAB, Plaintiff moved to Brownsville, Texas in
2014; but returned to Alabama in July 2016. However,
Plaintiff filed this case August 2, 2016 in Brownsville,
Texas. Plaintiffs complaint was in response to the most
recent denial of his U.S. Passport application dated August
23, 2012. Plaintiff returned to Alabama after filing the
instant action, and again applied to UAB November 4, 2016,
using the same Calera, Alabama address as listed in both
filed a motion to dismiss October 17, 2016. Docket No. 7.
Plaintiff filed a response to the motion to dismiss November
22, 2016. Docket No. 11. Defendants filed a reply in support
of the motion to dismiss December 6, 2016. Docket No. 14. The
Magistrate Judge submitted his "Report and
Recommendations" (Docket No. 16) December 20, 2016; the
magistrate court granted Defendant's motion to dismiss,
and held the court lacked jurisdiction over Plaintiff, based
upon the conclusion that Plaintiff is a resident solely of
the state of Alabama. Plaintiff filed "Objections to
Report and Recommendations" (Docket No. 19) January 16,
Court notes Plaintiff filed objections to the "Report
and Recommendations" January 16, 2017, alleging facts
different than those stated either in the original complaint
and/or response to the motion to dismiss. Docket No. 19.
However, the Court will exercise wide discretion in
considering the evidence in its ruling. See Freeman v.
County of Bexar, 142 F.3d 848, 852 (5th Cir. 1998))
(employing several factors in deciding whether to accept
additional evidence, including: (1) the moving party's
reasons for not originally submitting the evidence; (2) the
importance of the omitted evidence to the moving party's
case; (3) whether the evidence was previously available to
the non-moving party; and (4) the likelihood of unfair
prejudice to the non-moving party if the evidence is
reaching the merits of the instant motion, the Court rules
the United States of America is not a proper party; a person
may institute an action only "against the head of such
department or independent agency" that denies a right or
a privilege to a person claiming to be a national of the
United States. 8 U.S.C. § 1503(a). Accordingly, the
Court DISMISSES the United States of America as a defendant.
courts are courts of limited jurisdiction. Kokkonen v.
Guardian Life Ins. Co. of America, 511 U.S. 375, 377
(1994). Under Federal Rule of Civil Procedure 12(b)(1), a
court must dismiss a claim where it lacks subject matter
jurisdiction to hear the claim. The burden of proof is on
"the party asserting jurisdiction." Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001.) Upon
review, the court may look to: "(1) the complaint alone;
(2) the complaint supplemented by undisputed facts evidenced
in the record; or (3) the complaint supplemented by
undisputed facts plus the courts resolution of disputed
facts." Id. (citing Barrera-Montenegro v.
United States, 74 F.3d 657, 659 (5th Cir. 1996)).
"A case is properly dismissed for lack of subject matter
jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case." Home
Builders Ass'n of Mississippi, Inc. v. City of Madison,
Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (citation
The Court lacks jurisdiction under 8 U.S.C. §
person may challenge an agency's denial of a claimed
right or privilege as a U.S. citizen under 8 U.S.C. §
1503. The administrative remedy at ...