GERALD LEE FARRELL, Plaintiff, v. MICHAEL R. POMPEO, in his official capacity as Secretary of State of the United States, et al., Defendants.
Civil Action No. 17-490 (RBW)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
August 26, 2019
The pro se plaintiff, Gerald Lee Farrell, brings this civil action against the defendants, Michael R. Pompeo, the Secretary of the United States Department of State (the “Secretary“), and Corrin Ferber, Director of the Office of Legal Affairs, Bureau of Consular Affairs of the United States Department of State (“the Department“), alleging that the defendants’ denial of his request for a Certificate of Loss of Nationality violated the Immigration and Nationality Act (“INA“),
A. Statutory and Regulatory Framework
Section 349 of the INA provides that “a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any [one] of [seven] acts with the intention of relinquishing United States nationality.”
no national of the United States can lose United States nationality . . . while within the United States . . . but loss of nationality shall result from the performance within the United States . . . of any of the acts or the fulfillment of any of the conditions specified in [§ 1481(a)(1) through (a)(5)] if and when the national thereafter takes up a residence outside the United States[.]
[w]henever a diplomatic or consular officer of the United States has reason to believe that a person while in a foreign state has lost his United States nationality under [8 U.S.C. § 1481] . . . , he shall certify the facts upon which such belief is
based to the Department . . . , in writing, under regulations prescribed by the Secretary[.] If the report of the diplomatic or consular officer is approved by the Secretary . . . , the diplomatic or consular office in which the report was made shall be directed to forward a copy of the certificate to the person to whom it relates. Approval by the Secretary . . . of a certificate . . . shall constitute a final administrative determination of loss of United States nationality[.]
With respect to loss of nationality under the INA, the Secretary has promulgated a number of regulations, including
The Secretary has also provided specific guidance to consular officers regarding loss of nationality claims in his Foreign Affairs Manual (the “Manual” or “FAM“). Relevant to subsection (a)(1), the Manual provides that if consular officers considering a claim brought under subsection (a)(1) “become aware [that] a citizen acquired foreign nationality [a]nd[] the citizen asserts or advises [them] . . . that [his] intent was to relinquish [United States] citizenship,” then
The plaintiff is a United States citizen by birth. See AR 13. In 2014, the plaintiff pleaded guilty in the United States to federal criminal charges and was sentenced to a term of incarceration of ninety-six-months. See Judgment in a Criminal Case at 1-2, United States v. Farrell, Crim. Action No. 4-180-BLW (D. Idaho June 25, 2014), ECF No. 48.3 He is currently serving his prison sentence at the Federal Correctional Institution in Yazoo City, Mississippi. See Find an Inmate, Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited Aug. 26, 2019).
On June 20, 2016, an individual designated by the plaintiff as having power of attorney to act on his behalf (the “plaintiff‘s power of attorney“) forwarded to then-United States Ambassador to Switzerland Susan LeVine (the “Ambassador“) a letter from the plaintiff requesting that the Ambassador issue the plaintiff a Certificate of Loss of Nationality pursuant to § 1481(a)(1). See AR 5.4 In the letter, the plaintiff represented that he “became [a] Swiss [citizen] in 2004,” having been issued a Swiss passport in that year, and that he did so “voluntarily and with the intent to irrevocably lose [his] United States citizenship.” AR 5. In support of his position, the plaintiff attached several documents, including an affidavit in which he stated that he had voluntarily “applied for citizenship in . . . Switzerland, while on Swiss soil with the intent of losing [his] citizenship of the United States,” AR 7, as well as what purports to
On June 22, 2016, an unnamed representative of the American Citizen Services Section of the United States Embassy in Switzerland (the “Embassy“) responded by letter to the person acting with power of attorney on the plaintiff‘s behalf. See AR 16. In the response, the Embassy representative explained that because a “[United States] passport was issued to [the plaintiff] in 2013[, after he] acquired Swiss nationality in 2004, . . . expatriation d[id] not apply in his case.” AR 16. However, the representative advised that if the plaintiff “should now choose to renounce his [United States] nationality,” he could do so by “renounc[ing] [ ] in the presence of a consular officer; [ ] outside [of] the United States; and [ ] in the precise form prescribed by the Secretary of State.” AR 16. By letter dated July 21, 2016, the plaintiff‘s counsel at that time informed the Ambassador that her “denial to issue [the plaintiff] a Certificate of Loss of Nationality was solely based on a misunderstanding of the origin of the alleged 2013 [United States p]assport, which was actually solely requested and obtained by the [United States] Government,” AR 18, “presumably . . . for [the plaintiff‘s] extradition . . . to the United States,” AR 19. The plaintiff‘s prior-counsel represented that “[i]n 2004, [the plaintiff] voluntarily became a citizen of Switzerland . . . pursuant [to] . . . § 1481(a)(1),” and argued that “[t]he loss of [the plaintiff‘s] United States nationality was effective immediately, not when it is administratively or judicially determined.” AR 17.
By letter dated August 9, 2016, the Vice Consul for the Embassy (the “Vice Consul“) responded to the plaintiff‘s prior-counsel‘s letter, explaining that “to pursue expatriation . . . , [the plaintiff] would have to come to the Embassy in [Switzerland] to sign [F]orm DS-4081 . . . in person in front of a consular officer,” as well as “complete . . . the enclosed [F]orm DS-
Then, by letter dated September 19, 2016, the plaintiff‘s prior-counsel informed the Director of the Bureau of Consular Affairs of the Department (the “Director“) that the plaintiff “ha[d] been informally denied by [the] Consulate in [Switzerland] the issuance of a Certificate of Loss of Nationality,” AR 42, and requested “a reevaluation by the Department of th[e] informal decision,” AR 45. In the letter, the plaintiff‘s prior-counsel argued that “there is no personal appearance requirement” for an act committed under subsection (a)(1), “only a written affirmation” requirement. AR 42. In support of his position, the plaintiff‘s prior-counsel attached a notarized copy of the plaintiff‘s Swiss passport, see AR 47, and purported to attach the plaintiff‘s affidavit “confirming his voluntary commission in 2004 of [an expatriating act under subsection (a)(1)] on Swiss soil [and] his intent to lose his [United States] nationality,” AR 41.
By letter dated November 9, 2016, defendant Ferber responded to the plaintiff‘s prior-counsel, informing him that the Department had “carefully reviewed [his] explanation of [the plaintiff]‘s circumstances, the history of [his] correspondence with the [Embassy] . . . , and [his] legal arguments in support of [the plaintiff]‘s request [for] a [Certificate of Loss of
As a threshold matter, the Department cannot approve a [Certificate of Loss of Nationality] based on [§] [1481](a)(1) while the [United States] national is residing in the United States. . . . There is no question that a [United States] citizen who seeks a [Certificate of Loss of Nationality] based on [§] [1481](a)(1) remains so until the Department‘s approval of the [Certificate of Loss of Nationality], which, by statute, constitutes the final administrative determination of loss. Loss is not automatic upon the commission of the potentially expatriating act.
AR 48-49. The letter further explained that the plaintiff
did not comply with the applicable procedures to obtain a [Certificate of Loss of Nationality] . . . on the basis of [ ] [§] [1481](a)(1) while abroad prior to his incarceration, including [his] signature on the required Department . . . forms before a consular officer, and [he] cannot do so now while he is within the United States.
AR 49. Finally, defendant Ferber informed the plaintiff‘s prior-counsel that “[n]othing in [her] letter preclude[d] [the plaintiff] from properly submitting an application for a [Certificate of Loss of Nationality] on the basis of [ ] [§] [1481](a)(1) at some point in the future, once he is outside of the United States.” AR 50.
By letter dated December 1, 2016, the plaintiff‘s prior-counsel responded to defendant Ferber‘s letter. See AR 51. The plaintiff‘s counsel raised a number of legal arguments seeking to refute defendant Ferber‘s “contention that [the Department] cannot issue a [Certificate of Loss of Nationality to the plaintiff] while he is on [United States] soil,” reiterating the position “that [the plaintiff] has already lawfully expatriated under [ ] [§] [1481](a)(1) . . . [and] is presently solely a Swiss citizen . . . deportable [ ] under . . . the INA.” AR 52; see AR 53-61.
By letter dated February 8, 2017, defendant Ferber again responded to the plaintiff‘s prior-counsel, informing him that the Department had “reviewed [the plaintiff‘s] additional arguments,” and that “the Department maintain[ed] that [it could] not approve a [Certificate of
reiterate[d] that [the plaintiff‘s] request for a [Certificate of Loss of Nationality] on the basis of [§] [1481](a)(1) is unavailing[] because [the plaintiff] is within the United States and, thus, ineligible to expatriate under that section. In accordance with [the] INA . . . , the Department can only issue a [Certificate of Loss of Nationality] on the basis of an application properly completed abroad, in accordance with procedures set forth at 7 FAM [§] 1200 . . . . The process for obtaining a [Certificate of Loss of Nationality] on the basis of [ ] [§] [1481](a)(1) includes the individual signing [Form] DS-4079 before a consular officer at post abroad, and completing an interview with a consular officer to determine whether the expatriating act was performed voluntarily and with the intent to relinquish [United States] citizenship.
AR 72. The letter further explained that “[n]one of the cases on which [the plaintiff‘s prior-counsel] rel[ied] would permit the Department‘s issuance of a [Certificate of Loss of Nationality] on the basis of [ ] [§] [1481](a)(1) to a [United States] citizen requesting a [Certificate of Loss of Nationality] from within the United States.” AR 72. Finally, the letter “reiterate[d that] th[e] decision d[id] not preclude [the plaintiff] from properly submitting an application for a [Certificate of Loss of Nationality] on the basis of [ ] [§] [1481](a)(1) once he is outside of the United States,” and added that, “[s]hould [the plaintiff] do so, the Department would evaluate the substantive aspects of his application at that time.” AR 72.
On March 15, 2017, the plaintiff filed this suit, see Complaint at 1,5 and shortly thereafter, the plaintiff filed his motion for summary judgment, see Pl.‘s Mot. at 1. On July 26, 2017, the defendants filed a motion to dismiss the plaintiff‘s case, see Defs.’ Mot. to Dismiss at 1, which the Court denied on April 16, 2010, see Order at 1 (Apr. 16, 2018), ECF No. 26. The
II. STANDARD OF REVIEW
A moving party is entitled to summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
The APA “sets forth the full extent of judicial authority to review executive agency action for procedural correctness.” Fed. Commc‘ns Comm‘n v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). It requires courts to “hold unlawful and set aside agency action,
III. ANALYSIS
The plaintiff challenges the defendants’ rejection of his application for a Certificate of Loss of Nationality on numerous grounds. Construing the plaintiff‘s filings liberally, as the Court must, see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed[.]” (internal quotation marks omitted)), the plaintiff brings claims pursuant to the APA, the federal mandamus statute,
A. The Plaintiff‘s APA Claims
Pursuant to the APA, the plaintiff asks the Court to set aside the defendants’ actions as (1) “arbitrary, capricious, an abuse of discretion, . . . [and] not in accordance with law,”
1. Have the Defendants Acted In Excess of Statutory Jurisdiction, Authority, or Limitations, or Short of Statutory Right Under § 706(2)(C) of the APA?
The defendants denied the plaintiff‘s request for a Certificate of Loss of Nationality because (1) the Secretary cannot consider or approve a Certificate of Loss of Nationality unless the applicant is located outside of the United States (the “location requirement“) and (2) the plaintiff did not satisfy the in-person appearance requirement. The plaintiff asserts that both requirements violate the INA.
Before separately addressing each requirement, the Court must first address the defendants’ argument that “[t]he INA unequivocally reflects that loss of nationality is official only upon the Secretary‘s official final determination to approve it through a [Certificate of Loss of Nationality]” because
Moreover, as the plaintiff correctly notes, see Pl.‘s Reply at 2-3,
As already explained, the defendants denied the plaintiff‘s request for a Certificate of Loss of Nationality in part based on their position that “the Department cannot approve a [Certificate of Loss of Nationality] based on [ ] [§] [1481](a)(1) while [a] [United States] national is residing in the United States.” AR 48. The defendants argue that, “[b]y stating plainly [in § 1483] that ‘no national [of the United States] can lose United States nationality under this chapter while within the United States,’ Congress made clear that [the p]laintiff cannot lose his United States nationality while within the United States, regardless of acts he might have performed while outside of the United States.” Defs.’ Mem. at 27 (quoting
Because the plaintiff argues that the location requirement violates the INA, “a statute the [Secretary] is charged with enforcing, [the Court must] proceed in accordance with Chevron‘s familiar two-part test.” Am. Bankers Ass‘n v. Nat‘l Credit Union Admin., 271 F.3d 262, 267 (D.C. Cir. 2001) (citing Chevron, USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)). “Pursuant to Chevron [s]tep [o]ne, if the intent of Congress is clear, the reviewing court must give effect to that unambiguously expressed intent.” Id. (citation and internal quotation marks omitted). In determining whether “Congress has directly spoken to the precise question at issue,” Nat‘l Treasury Emps. Union v. Fed. Labor Relations Auth., 414 F.3d 50, 57 (D.C. Cir. 2005), courts “us[e] the traditional tools of statutory construction,” Cal. Indep. Sys. Operator Corp. v. Fed. Energy Reg. Comm‘n, 372 F.3d 395, 400 (D.C. Cir. 2004), including “evaluation of the plain statutory text at issue, the purpose and structure of the statute as a whole,
Here, the Court cannot agree with the defendants that § 1483 unambiguously compels the conclusion that the Secretary may only consider Certificate of Loss of Nationality applications submitted by applicants who are abroad. See Defs.’ Mem. at 27. Although
The Court must also reject the defendants’ argument that § 1104(a)(3) unambiguously compels them to reject applications submitted by persons located within the United States. See
The Secretary of State shall be charged with the administration and the enforcement of the provisions of this chapter and all other immigration and nationality laws relating to (1) the powers, duties, and functions of diplomatic and consular officers of the United States, except those powers, duties, and functions conferred upon the consular officers relating to the granting or refusal of visas; (2) the powers, duties, and functions of the Administrator; and (3) the determination of nationality of a person not in the United States.
[t]he expressio unius canon is a “feeble helper in an administrative setting, where Congress is presumed to have left to reasonable agency discretion questions that it has not directly resolved.” It offers “too thin a reed to support the conclusion that Congress has clearly resolved an issue.” And when countervailed by a broad grant of authority contained within the same statutory scheme, the canon is a poor indicator of Congress’ intent.
Adirondack Med. Ctr. v. Sebelius, 740 F.3d 692, 697 (D.C. Cir. 2014) (citations omitted).
Reading § 1104(a)(3) to deny the Secretary authority over issuing Certificates of Loss of Nationality to persons located within the United States may be reasonable, and finds some support in the statutory structure, which charges the Attorney General with duties related to persons seeking to expatriate while in the United States under (a)(6). See
Additionally, as the plaintiff correctly notes, see Pl.‘s Resp. at 3, reading
For the foregoing reasons, the defendants’ counterarguments do not persuade the Court that the INA unambiguously prohibits the Secretary from approving a Certificate of Loss of Nationality for an applicant who is located in the United States. However, the Court also cannot agree with the plaintiff that the statute unambiguously forecloses a location requirement for the issuance of a Certificate of Loss of Nationality. The plaintiff argues that Congress‘s failure to include a geographic location requirement in § 1501 resolves the question. See Pl.‘s Reply at 1. But, as already explained, “[t]he expressio unius canon is a ‘feeble helper in an administrative setting,‘” especially “when countervailed by a broad grant of authority contained within the same statutory scheme,” Adirondack Med. Ctr., 740 F.3d at 697 (citation omitted), such as the Secretary‘s broad authority to prescribe regulations regarding the certification process, see
Nevertheless, the Court need not move to Chevron step two and decide whether the defendants’ location requirement is entitled to any deference. As this Circuit has instructed, “deference to an agency‘s interpretation of a statute is not appropriate when the agency wrongly believes that interpretation is compelled by Congress.” PDK Labs., Inc. v. Drug Enf‘t Admin.
ii. The In-Person Appearance Requirement
The plaintiff argues that the in-person appearance requirement is invalid because “Congress has directly spoken to the issue of whether the Secretary may impose additional requirements other than those already specified by Congress in chapter 3 [of the INA] . . . , [and] th[e] answer is they may not.” Pl.‘s Reply at 8. Specifically, the plaintiff argues that at least three provisions of the INA demonstrate that “the Secretary may [not] impose additional requirements other than those already specified by Congress in chapter 3 [of the INA].” Pl.‘s Reply at 8. First, he argues that
None of the plaintiff‘s arguments are compelling. Even if the Secretary may not require an in-person appearance as a condition for loss of nationality under
Concluding that the INA expressly grants the Secretary authority to prescribe rules governing the certification process, the Court need not analyze the in-person requirement pursuant to the Chevron framework; rather, it need only apply “traditional arbitrary and capricious review.” Oconus Dod Emp. Rotation Action Grp. v. Cohen, 140 F. Supp. 2d 37, 45 n.7 (D.D.C. 2001), aff‘d sub nom. Oconus Dod Emp. Rotation Action Grp. v. Rumsfeld, 38 F. App‘x 2 (D.C. Cir. 2002) (concluding that ”Chevron[] [ ] [wa]s inapplicable . . . , as [it] is principally concerned with whether an agency has authority to act under a statute, . . . [and] the authorizing statute [at issue] g[a]ve [the agency] express authority to exercise its discretion to establish a [particular] policy“); see OSG Bulk Ships, Inc. v. United States, 132 F.3d 808, 812 n.7 (D.C. Cir. 1998) (“[W]hen Congress has ‘explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation’ and ensuing regulations are reviewed pursuant to the arbitrary-or-capricious standard.” (quoting Chevron, 467 U.S. at 843–44)); cf. Judulang v. Holder, 565 U.S. 42, 52 n.7 (2011) (declining to analyze an agency policy that was “not an interpretation of any statutory language” under Chevron step two because “the more apt analytic framework . . . is standard ‘arbitrary [or] capricious’ review under the APA“).
Agency action is “arbitrary and capricious” if “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the
Here, evidence of the Department‘s rationale at the time it adopted the in-person appearance requirement is scant. Indeed, the origin of the requirement, which does not explicitly appear in the Manual but only on Forms DS-4079 and DS-4081, is unclear.9 However, the Court
appeared personally and[] read [or] had read to him/her th[e] [Statement of Understanding Concerning the Consequences and Ramifications of Renunciation or Relinquishment of United States Nationality] after [the consular officer‘s] explanation of [the statement‘s] meaning and the consequences of renunciation/relinquishment of United States nationality and signed th[e] statement[] under oath [or] by affirmation before [the consular officer.]
AR 109. This language suggests that Form DS-4081‘s in-person appearance requirement seeks to ensure that an applicant understands the consequences of loss of nationality, which is an inquiry rationally related to a consular officer‘s determination of whether an individual performed an expatriating act with the requisite intent. See 7 FAM § 1227(a) (“Form DS-4081 . . . is highly pertinent to knowing intent to relinquish [United States] citizenship.“); see also 7 FAM § 1226(c) (“The intention to relinquish [United States] nationality . . . does not exist in cases where a renunciant plans or claims a right to continue to reside in the United States unless the renunciant demonstrates that residence will be as an alien documented properly under [United States] law.“); Lozada Colon v. U.S. Dep‘t of State, 2 F. Supp. 2d 43, 45 (D.D.C. 1998) (affirming the Secretary‘s determination that a United States national lacked the requisite intent to expatriate because the national “want[ed] to remain a resident of Puerto Rico“).
Moreover, the Manual indicates that Form DS-4079 is also designed to assist consular officers in “inquir[ing] about . . . [an] individual‘s intention regarding his . . . [United States] citizenship in committing [a potentially expatriating] act.” 7 FAM § 1224.3(a). And, given that
The plaintiff‘s counterarguments are again unpersuasive. The plaintiff argues that the imposition of an in-person appearance requirement violates
Moreover, the Court cannot agree with the plaintiff that “Congress expressly divested authority from the Secretary and gave it to the diplomatic and consular officers who ‘shall certify the facts.‘” Pl.‘s Reply at 8 (quoting
Thus, the Court concludes that it must uphold the in-person appearance requirement. Accordingly, the Court cannot conclude that the Secretary‘s denial of the plaintiff‘s request for a
2. Was the Defendants’ Decision-Making Process Arbitrary, Capricious, an Abuse of Discretion, or Otherwise Not in Accordance with Law Under § 706(2)(A) of the APA?
“[Section] 706(2)(A) actions focus mainly on the decision-making process and rationale behind agency action.” Individual Reference Servs. Grp. v. Fed. Trade Comm‘n, 145 F. Supp. 2d 6, 25 (D.D.C. 2001), aff‘d sub nom., Trans Union LLC v. Fed. Trade Comm‘n, 295 F.3d 42 (D.C. Cir. 2002). As already explained, agency action is “arbitrary and capricious” if “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass‘n, 463 U.S. at 43.
The plaintiff raises several arguments for why the defendants’ actions violate
The plaintiff also argues that the defendants acted arbitrarily and capriciously because “their actions were not based on agency preceden[t].” Pl.‘s Opp‘n to Mot. to Dismiss at 25. Although this Circuit has held that it “cannot uphold a decision where an agency departs from established precedent without a reasoned explanation,” LePage‘s 2000, Inc. v. Postal Reg. Comm‘n, 642 F.3d 225, 233 (D.C. Cir. 2011), the plaintiff has not identified any such established precedent from which the defendants departed. Rather, the plaintiff cites only Richards v. Secretary of State, 752 F.2d 1413 (9th Cir. 1985), as an example of a situation in which “the Secretary both approved and served [an individual] a [Certificate of Loss of Nationality] while [that individual] was physically present in California.” Pl.‘s Opp‘n at 10. As an initial matter, the plaintiff provides no reason for the Court to conclude that the Secretary‘s approach in a single case in 1985 constitutes “established precedent.” LePage‘s 2000, Inc., 642 F.3d at 233. In any event, while the actions taken by the Secretary with regard to the plaintiff in Richards do appear to be inconsistent with his position in this case that he cannot consider or approve a Certificate of Loss of Nationality for an individual who is located within the United States, see Richards, 752 F.2d at 1417 (explaining that “[t]he Department [ ] approved [a]
The plaintiff also suggests that the defendants’ refusal to consider the merits of his request for a Certificate of Loss of Nationality is arbitrary and capricious because the Secretary has “already [ ] ‘determined’ [the] [p]laintiff‘s United States [n]ationality,” Pl.‘s Opp‘n to Mot. to Dismiss at 9, presumably referring to the Embassy‘s correspondence with the plaintiff‘s prior counsel sent before the defendants’ consideration of his claim, in which the Embassy appeared to reject the plaintiff‘s request on its merits, see AR 16 (stating that because a “[United States] passport was issued to [the plaintiff] in 2013[, after he] acquired Swiss nationality in 2004, . . . expatriation d[id] not apply in his case“). However, as this Circuit has acknowledged, “inconsistent statements by agencies’ regional offices during [the] early stages of review do not render [the agency‘s] decisionmaking process arbitrary and capricious where proper procedures are followed.” WildEarth Guardians v. Jewell, 738 F.3d 298, 312 (D.C. Cir. 2013) (citing Nat‘l Ass‘n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658–59 (2007)); see WildEarth Guardians v. Nat‘l Park Serv., 703 F.3d 1178, 1186–87 (10th Cir. 2013) (concluding that emails
For all of these reasons, the Court concludes that the Secretary‘s decisionmaking process for denying the plaintiff‘s request for a Certificate of Loss of Nationality did not violate
3. Have the Defendants Acted Contrary to Constitutional Right, Power, Privilege, or Immunity Under § 706(2)(B) of the APA?
The plaintiff argues that the defendants, by “den[ying] [him] a [Certificate of Loss of Nationality,] . . . [have denied] his Constitutional [r]ight to voluntary expatriation.” Pl.‘s Reply at 23. Specifically, he argues that because “he ‘has lost’ his United States nationality[,] . . . [the] [defendants‘] [refusal] to recognize this loss with a Certificate of Loss of Nationality[] [ ] defeat[s] Congress‘s ultimate purpose of the INA [with] respect[] to [l]oss of [n]ationality.” Id. at 28. The defendants respond that their denial of the plaintiff‘s application for a Certificate of Loss of Nationality was not contrary to constitutional right, power, privilege, or immunity “because [the] [p]laintiff does not have a constitutional right to expatriate in any way he deems fit, only a constitutional right not to be involuntarily expatriated.” Defs.’ Mem. at 44.
Although the Supreme Court has recognized that a citizen has the constitutional right to remain a citizen, see Afroyim v. Rusk, 387 U.S. 253, 268 (1967), “[it] has not recognized that the right to abandon one‘s citizenship constitutes a constitutional right,” Kwok Sze v. Johnson, 172 F. Supp. 3d 112, 121 (D.D.C. 2016) (citation and internal quotation marks omitted), aff‘d sub
4. Was Agency Action Unlawfully Withheld or Unreasonably Delayed Under § 706(1) of the APA?
The plaintiff argues that “[t]he defendants[,] in failing to adjudicate [his] claim for a [Certificate of Loss of Nationality] under [
In sum, the Court concludes that the plaintiff‘s APA challenges to the defendants’ denial of his request for a Certificate of Loss of Nationality must fail. Accordingly, the Court will deny the plaintiff‘s motion for summary judgment and grant the defendants’ cross-motion for summary judgment as to those claims.
B. The Plaintiff‘s Request for Mandamus Relief
The plaintiff seeks a “[j]udicial order requiring [the d]efendants to issue to [him] a Certificate of Loss of [United States] Nationality,” Am. Compl. at 26, which the Court construes as a request for mandamus relief pursuant to
C. The Plaintiff‘s Request for Declaratory Relief
The plaintiff finally “seeks a judicial determination of [his] loss of United States nationality under [the Court‘s] authority granted in” the Declaratory Judgment Act. Pl.‘s Resp. at 1; see Pl.‘s Reply at 5 (“As a matter of law[,] the plaintiff is entitled to . . . a declaration of his loss of United States citizenship[.]“). “The Declaratory Judgment Act . . . ‘gives courts discretion to determine whether and when to entertain an action.‘” Slinski v. Bank of Am., N.A., 981 F. Supp. 2d 19, 38 (D.D.C. 2013) (citation omitted) (quoting Swish Mktg., Inc. v. Fed. Trade Comm‘n, 669 F. Supp. 2d 72, 76 (D.D.C. 2009)). “In deciding whether to exercise its permissive jurisdiction over declaratory actions, a court may consider ‘equitable, prudential, and policy arguments.‘” Id. (quoting MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 136 (2007)). “Although there are no dispositive factors, the [District of Columbia] Circuit has listed several relevant considerations to guide the Court‘s analysis[.]” Swish Mktg., 669 F. Supp. 2d at 76 (internal quotation marks and citation omitted). These factors include
whether [a declaratory judgment] would finally settle the controversy between the parties; whether other remedies are available or other proceedings pending; the convenience of the parties; the equity of the conduct of the declaratory judgment plaintiff; prevention of “procedural fencing“; the state of the record; the degree of adverseness between the parties; and the public importance of the question to be decided.
Id. at 76–77 (quoting Hanes Corp. v. Millard, 531 F.2d 585, 591 n. 4 (D.C. Cir. 1976)).
Applying these discretionary factors, the Court does not find that a declaratory judgment that the plaintiff has lost his United States nationality is appropriate. First, such a judgment “would [not] finally settle the controversy between the parties,” id. at 76, which is “[o]ne of the most important considerations that may induce a court to deny declaratory relief,” 10B Charles
For the foregoing reasons, the Court concludes that the defendants’ denial of the plaintiff‘s request for a Certificate of Loss of Nationality does not violate the APA or otherwise result in the violation of the law. Additionally, the Court concludes that the mandamus and declaratory relief requested by the plaintiff is not warranted. Accordingly, the Court concludes that it must deny the plaintiff‘s motion for summary judgment and grant the defendants’ cross-motion for summary judgment.13
SO ORDERED this 27th day of November, 2019.
REGGIE B. WALTON
United States District Judge