958 F.3d 1014
10th Cir.2020Background
- Dana Zzyym, an intersex U.S. citizen, applied for a passport and requested an “X” sex marker because neither male nor female accurately described them; they submitted an amended birth certificate listing sex as “UnKnown” and physicians’ letters.
- The State Department denied the request, enforcing a long-standing binary-sex policy on passport applications and offering only: (1) issue an F (matching a Colorado license), (2) issue an M (with physician proof of transition), or (3) withdraw.
- Zzyym sued; the district court found the denial arbitrary and capricious under the Administrative Procedure Act (APA) and ordered remand; on remand the State Department reaffirmed the policy and again denied the application.
- On appeal the Tenth Circuit addressed (1) whether the State Department had statutory authority to require a binary sex designation and (2) whether applying that policy to Zzyym was arbitrary and capricious based on the administrative record.
- The panel concluded the Department had statutory authority (based on longstanding administrative practice and congressional acquiescence) but that its decision was arbitrary and capricious because three of five articulated reasons lacked record support; the court vacated the denial and remanded for reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether government waived challenge to statutory-authority ruling | Zzyym: government perfunctorily raised statutory-authority argument on appeal and thus waived it | Government: its brief tied statutory-authority argument to the APA analysis; district rulings were intertwined | No waiver — government sufficiently briefed the statutory-authority issue |
| Whether State Department had statutory authority to require sex = M/F | Zzyym: Passport Act does not authorize denying applications for failing to select M/F | State Dept: Passport Act is permissive; long administrative practice and congressional acquiescence support rulemaking | Department had statutory authority to enforce binary-sex policy |
| Whether application of binary-sex policy to Zzyym was arbitrary and capricious under APA | Zzyym: denial lacked reasoned support; policy creates inaccuracies for intersex people and ignored alternatives | State Dept: offered five justifications (accuracy, eligibility screening, data utility, lack of medical consensus, infeasibility of X) | Arbitrary and capricious: only two of five reasons (eligibility screening; data utility) were supported; three reasons lacked record support |
| Remedy when agency gives multiple grounds, some unsupported | Zzyym: remand required because agency relied on unsupported reasons and did not say it would rely on the valid ones alone | Government: agency action should be upheld if any one valid reason exists | Remand required: court cannot divine whether Department would have denied application based only on the two supported reasons; vacate decision and remand to reconsider |
Key Cases Cited
- Haig v. Agee, 453 U.S. 280 (recognizing deference to State Department’s passport authority and reliance on past practice)
- Kent v. Dulles, 357 U.S. 116 (reviewing limits of passport-denial authority based on administrative practice and congressional response)
- Zemel v. Rusk, 381 U.S. 1 (upholding travel restrictions tied to longstanding administrative practice)
- Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (standard for arbitrary and capricious review)
- SEC v. Chenery Corp., 332 U.S. 194 (court may not supply agency’s post-hoc rationalizations)
- NLRB v. CNN American, Inc., 865 F.3d 740 (D.C. Cir. approach: remand when multiple grounds include unsupported reasons)
- Salt River Project Agric. Imp. & Power Dist. v. United States, 762 F.2d 1053 (D.C. Cir. — upholding outcome when record clearly shows agency would have reached same result on valid grounds)
- Consolidated Edison Co. v. FERC, 823 F.2d 630 (remand where error reflected pervasive frame of mind and outcome uncertain)