Case: 25-50713 Document: 52-1 Page: 1 Date Filed: 12/15/2025

United States Court of Appeals for the Fifth Circuit United States Court of Appeals ____________ Fifth Circuit FILED No. 25-50713 December 15, 2025 ____________ Lyle W. Cayce Clerk James Devins, Plaintiff—Appellant, versus John Armstrong, Assistant Secretary, Bureau of Consular Affairs, U.S. Department of State, in his official capacity, Defendant—Appellee. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 5:25-CV-178-ESC ______________________________ Before King, Higginson, and Wilson, Circuit Judges.

Cory T. Wilson, Circuit Judge: Plaintiff James Devins, proceeding pro se, filed this action in February 2025, challenging the denial of a visa for a foreign student he sought to sponsor under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq. The district court dismissed the complaint pursuant to Rule 12(b)(6), with prejudice, based on the doctrine of res judicata. The court did so because it had repeatedly determined in prior actions that it lacked subject matter jurisdiction over Devins’s claims. We affirm.

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I.

Devins adheres to a “mystical understanding of religion and reality,” a belief system he refers to as “the Plan.” As part of his religious exercise, he seeks to sponsor Rita Raut, a 23-year-old Nepali citizen, and provide her “parental and patriotic guidance” as well as “spiritual and intellectual mentorship.” Devins met Raut in 2018 and has endeavored since 2021 to assist her in pursuing university studies in the United States. As part of these efforts, Raut interviewed at the U.S. Embassy in Kathmandu on three occasions in 2021, 2022, and 2023. On each occasion, she applied for an F-1 student visa, and all three applications were refused by consular officials under 8 U.S.C. § 1184(b).

After the last denial in 2023, Devins initiated his first action, suing the Director of United States Citizenship and Immigration Services to seek reconsideration of the visa denial. See Devins v. Jaddou, 5:23-CV-152-OLG, 2024 WL 88004 (W.D. Tex. Jan. 8, 2024) (adopting 2023 WL 9132334 (W.D. Tex. Nov. 30, 2023)). The district court dismissed the suit without prejudice, determining that Devins lacked an injury that would confer standing. See Devins, 2023 WL 9132334, at *2–*3. Devins then filed a second lawsuit, this time against the Assistant Secretary of State for Consular Affairs. See Devins v. Bitter, 5:24-CV-257 (W.D. Tex. Oct. 2, 2024). Devins alleged a violation of his rights under RFRA. See id.; see also 42 U.S.C. §§ 2000bb et seq. The district court dismissed this second suit without prejudice for lack of subject matter jurisdiction, on both standing and consular nonreviewability grounds.

The instant action is Devins’s third attempt to challenge Raut’s 2023 visa denial. He again alleges a violation of his rights under RFRA and again sues the Assistant Secretary of State for Consular Affairs seeking reconsideration of the visa denial. Devins alleges no new facts or injury since

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the final visa denial in 2023. His operative complaint requests that the district court (1) retroactively approve Raut’s 2023 visa application by engrafting RFRA’s standards into the determination process, (2) institute a “vetting” process requested by Devins to demonstrate his “religious sincerity and trustworthiness,” (3) update Raut’s visa-related records, and (4) appoint a liaison in the Kathmandu consulate to assist Raut in procuring the visa. The Secretary moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

In weighing the motion to dismiss, the district court observed that Devins’s cases arose from the same facts and alleged the same claim against identical defendants. Accordingly, the court raised sua sponte the doctrine of res judicata and concluded that the dismissals of Devins’s first two actions for lack of subject matter jurisdiction had preclusive effect on the court’s jurisdiction in this case. The district court further concluded that Devins could not cure his lack of standing by substituting new agencies as defendants or alleging new causes of action, so the court dismissed Devins’s claim with prejudice.

II.

We review de novo the dismissal of a claim under Rule 12(b)(6). Taylor v. City of Shreveport, 798 F.3d 276, 279 (5th Cir. 2015). “A district court’s decision to dismiss with prejudice is reviewed for abuse of discretion.”

Dobbin Plantersville Water Supply Corp. v. Lake, 108 F.4th 320, 325 (5th Cir. 2024).

A.

Res judicata is typically interposed by a defendant as an affirmative defense. Fed. R. Civ. P. 8(c)(1). Generally, dismissal under Rule 12(b)(6) based on res judicata “is appropriate if the res judicata bar is apparent from the complaint and judicially noticed facts and the plaintiff fails to challenge

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the defendant’s failure to plead it as an affirmative defense.” Anderson v. Wells Fargo Bank, N.A., 953 F.3d 311, 314 (5th Cir. 2020).

However, res judicata dismissal may also be raised by the district court “in the interest of judicial economy where both actions were brought before the same court.” Mowbray v. Cameron Cnty., 274 F.3d 269, 281 (5th Cir. 2001) (internal citation omitted). In fact, “if all relevant data and legal records are before the court, the demands of comity, continuity in the law, and essential justice mandate judicial invocation of the principles of res judicata.” Pie Dev., LLC v. Pie Carrier Holdings, Inc., 128 F.4th 657, 662 (5th Cir. 2025) (internal quotation marks omitted). Here, the Secretary did not plead res judicata as an affirmative defense, and Devins did not challenge his failure to do so; all three of Devins’s actions have proceeded before the same court (and the same judge); and “the res judicata bar is apparent from the complaint and judicially noticed facts.” Anderson, 953 F.3d at 314. Thus, the district court properly invoked res judicata as a basis for dismissal.

Yet Devins devotes the bulk of his briefing on appeal to the merits of his RFRA claim and perceived defects in Raut’s visa process. Those issues could be relevant if the district court had improperly applied res judicata. But the primary issue before us is whether that court’s application of res judicata was proper; we need not probe the correctness of the court’s earlier decisions, or wade into the merits of Devins’s RFRA claim. See Comer v. Murphy Oil USA, Inc., 718 F.3d 460, 466 (5th Cir. 2013) (noting that applicability of res judicata “does not depend on whether or not the prior judgment was right”); Oreck Direct, LLC v. Dyson, Inc., 560 F.3d 398, 401 (5th Cir. 2009) (“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”).

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Dismissal of a claim based on res judicata is proper if “(1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded by a final judgment on the merits; and (4) the same claim or cause of action was involved in both actions.” Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005). Devins does not dispute that the first and second elements are met. Therefore, we address only the last two.

Devins contends that the earlier dismissals were not “final judgments on the merits,” either because they concerned jurisdiction or because they were without prejudice. Neither contention holds water. Dismissal for lack of standing is a final judgment on the merits for res judicata purposes. Comer, 718 F.3d at 469; see also Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinée, 456 U.S. 694, 702 n.9 (1982) (“It has long been the rule that principles of res judicata apply to jurisdictional determinations—both subject matter and personal.”). And dismissals for lack of jurisdiction, even without prejudice, still exert res judicata effect as to those jurisdictional issues, if not the underlying merits. Bank of La. v. FDIC, 33 F.4th 836, 838 (5th Cir. 2022); see also Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980) (“Although the dismissal of a complaint for lack of jurisdiction does not adjudicate the merit[s] so as to make the case res judicata on the substance of the asserted claim, it does adjudicate the court’s jurisdiction, and a second complaint cannot command a second consideration of the same jurisdictional claims.”).

While this preclusive effect might be negated had Devins demonstrated that he now has standing, see Lopez v. Pompeo, 923 F.3d 444, 447 (5th Cir. 2019), his operative complaint alleges no new developments since 2023, much less anything that would change the district court’s prior standing analysis.

Devins’s lack of standing to bring his claim has thus been conclusively addressed by a prior final judgment on the merits.

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And the “same claim or cause of action was involved” if Devins’s cases share “the same nucleus of operative facts.” United States v. Davenport, 484 F.3d 321, 326 (5th Cir. 2007); Test Masters, 428 F.3d at 571.

They do. “The nucleus of operative facts, rather than the type of relief requested, substantive theories advanced, or types of rights asserted, defines the claim.” Davenport, 484 F.3d at 326. Devins’s serial actions concern the same visa denial, assert the same cause of action, and target the same defendant. Thus, the instant action constitutes the same claim or cause of action as Devins’s prior actions, and res judicata dismissal was proper.

B.

Of course, dismissal for lack of jurisdiction is normally without prejudice. See Mitchell v. Bailey, 982 F.3d 937, 944 (5th Cir. 2020); but see Baton Rouge Bldg. & Constr. Trades Council AFL-CIO v. Jacobs Constructors, Inc., 804 F.2d 879 (5th Cir. 1986) (upholding dismissal for lack of jurisdiction with prejudice where Louisiana law did not grant plaintiffs a cause of action).

However, when a claim is conclusively barred by res judicata, dismissal with prejudice is appropriate. See Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 n.8 (5th Cir. 1993); see also Wilder Corp. of Del., Inc. v. Rural Cmty.

Ins. Servs., 494 F. App’x 487, 490 (5th Cir. 2012).

Here, Devins has failed after multiple attempts to demonstrate a cognizable injury based on the denial of another person’s visa application, or to show that any federal law grants him a cause of action for the review of otherwise unreviewable consular visa decisions. See Calvary Albuquerque Inc. v. Rubio, 136 F.4th 1217, 1230 (10th Cir. 2025) (rejecting the argument that RFRA authorizes judicial review of consular visa decisions), vacated on other grounds, 154 F.4th 1246 (10th Cir. 2025). The district court had already twice conclusively determined that Devins lacked standing, yet he launched this third action alleging the same claim, against the same defendant, based on the

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same facts. Res judicata clearly barred this latest action, such that dismissal with prejudice was not an abuse of discretion. * * * In this case, the third time is not the charm; it is an attempt to relitigate Devins’s standing to bring his claim—a matter conclusively adjudged by the district court twice before. The district court’s dismissal of Devins’s instant claim on res judicata grounds was thus appropriate. Under the circumstances, it was also not an abuse of discretion to dismiss this lawsuit with prejudice. Accordingly, the judgment of the district court is AFFIRMED.