     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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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).

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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.

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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

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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.

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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.

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