I. BACKGROUND
A. Statutory and Regulatory Framework
Sеction 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."
[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 consularoffice 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[.]
The Secretary is responsible for administering and enforcing loss of nationality under subsections (a)(1) through (a)(5). See Defs.' Mem. at 4; see also
The Secretary has also provided specific guidance to consular officers regarding the administration of 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 "[t]he administrative presumption of intention to retain [United States] nationality is inapplicable[ a]nd[ ] it is necessary to develop the case and assess [the] voluntariness and intent." 7 FAM 1221, Exhibit ("Ex.") 1 (Loss-of-Nationality Flow Chart ("Flow Chart") ). In this situation, the Manual instructs a consular officer to send a letter to the citizen that "[p]rovide[s] [him with a copy of] ... Form DS-4079, Questionnaire: Information for Determining Possible Loss of [United States] Citizenship,"
B. Factual and Procedural History
The plaintiff is a United States citizen by birth. See Am. Compl., Ex. 1 (Certificate of Live Birth); see also Defs.' Mem. at 8. However, he alleges that he "moved to Switzerland in ... [ ]1994[ ]," "married a Swiss citizen in 1996," and "obtain[ed] naturalization in Switzerland" in 2004. Am. Compl. at 5. In 2014, thе plaintiff pleaded guilty in the United States to federal criminal charges and was sentenced to a ninety-six-month prison term. See Judgment at 1-2, United States v. Farrell, Crim. Action No. 4-180-BLW (D. Idaho June 25, 2014), ECF No. 48.
On May 31, 2016, the plaintiff sent a letter to then-United States Ambassador to Switzerland Susan LeVine, requesting that she issue him a Certificate of Loss of Nationality pursuant to § 1481(a)(1). See Am. Compl., Ex. 6 (Letter from Gerald Lee Farrell to the Honorable Susan LeVine, United States Ambassador to Switzerland (May 31, 2016) ("May 31, 2016 Letter") ) at 1.
On June 22, 2016, an unnamed representative of the United States Embassy in Switzerland (the "Embassy") responded by letter to the individual designated by the plaintiff as having power of attorney to act on his behalf. See
On July 21, 2016, the plaintiff's counsel sent a letter to the Ambassador asserting that "[t]he current 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,"
On August 9, 2016, the Vice Consul for the Embassy responded to the plaintiff's counsel's letter, explaining that "to pursue expatriation ..., [the plaintiff] would have to come to the Embassy in [Switzerland] to sign form DS-4081 ... in person in front of a consular officer," as well as "complete ... the enclosed form DS-4079 ... and send [it] to [the Embassy]."
On September 19, 2016, the plaintiff's counsel sent a letter to the Director of the Bureau of Consular Affairs of the Department, informing the Director that the plaintiff "ha[d] been informally denied by [the] Consulate in [Switzerland] the issuance of a Certificate of Loss of Nationality,"
On November 9, 2016, defendant Ferber responded to the plaintiff's counsel by letter, informing him that although 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 Lоss of Nationality] under section 349(a)(1)," it could not "approve a [Certificate of Loss of Nationality] for [the plaintiff] based on 349(a)(1) at th[at] time."
[a]s a threshold matter, the Department cannot approve a [Certificate of Loss of Nationality] based on [§] 349(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 [§] 349(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.
did not comply with the applicable procedures to obtain a [Certificate of Loss of Nationality] ... on the basis of [ ] section 349(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.
On December 1, 2016, the plaintiff's counsel responded by letter to defendant Ferber's letter. See
On February 8, 2017, defendant Ferber again responded to the plaintiff's counsel by letter, informing him that the Department had "reviewed [the plaintiff's] additional arguments," but that "the Department maintain[ed] that [it could ]not approve a [Certificate of Loss of Nationality for [the plaintiff] under section 349(a)(1) ... at th[at] time."
reiterate[d] that [the plaintiff's] request for a [Certificate of Loss of Nationality] on the basis of [§] 349(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 [ ] section 349(a)(1) includes the individual signing the 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.
Shortly thereafter, on March 15, 2017, the plaintiff filed this suit. See Complaint at 1. Despite having been represented by counsel in his communications with the
II. STANDARD OF REVIEW
A. Motion to Dismiss
A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Thus, to survive a motion to dismiss for "failure to state a claim upon which relief can be granted," Fed. R. Civ. P. 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face,' " Ashcroft v. Iqbal,
Although the Court "must treat the complaint's factual allegations as true [and] must grant [the] plaintiff the benefit of all reasonable inferences from the facts alleged," Trudeau v. FTC,
B. APA Claims
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.,
III. ANALYSIS
A. The Plaintiff's APA Claims
The defendants argue that the plaintiff has failed to state any claim under the APA because (1) he has failed to allege a final agency action, see Defs.' Mem. at 20-22; and (2) "[e]ven [a]ssuming [there is] a [f]inal [a]gency [a]ction," he "has not and cannot plausibly allege that [the d]efendants' actions" violated the APA, id. at 25. The Court will address each argument in turn.
1. Final Agency Action
The defendant argues that the plaintiff has failed to state a claim under the APA because the "[p]laintiff's evident failures either to complete the required forms in their entirety or to appear personally before a consular officer make clear that thеre was no proper [ ] application before the Department and, therefore, that the Department did not render a judicially reviewable final agency action." Id. at 21. They further argue that "[t]he Department's responses [to the plaintiff] were nothing more than the informal provision of information[,] and the Department never indicated to the contrary, no matter how much [the p]laintiff tried to characterize the [ ] correspondence as a 'denial' or a 'final agency action.' " Id. The plaintiff responds that "the lengthy chain of correspondence between the parties[ ] establishes a request by the [p]laintiff for a [Certificate of Loss of Nationality] under 8 U.S.C. [§] 1481(a)(1)," Pl.'s Opp'n at 6, and the "plain language meaning" of the words used in the Department's correspondence demonstrates that the Department "denied" his request and thereby "culminat[ed] [its] decision-making process," id. at 3.
It is well established that "a court may not review a non-final agency action." Conservation Force v. Salazar,
The Court concludes that the plaintiff has alleged facts sufficient to demonstrate that defendant Ferber's letters to the plaintiff's counsel constitute final agency action within the meaning of the APA. As to the first element of final agency action, that the action "marks the consummation of the agency's decision making process," Conservation Force,
The Department's correspondence is strikingly similar to the agency correspondence at issue in XP Vehicles, Inc. v. Department of Energy,
all of these letters and statements plainly constitute a final decision of the [Department of Energy] rejecting [the plaintiff]'s [ ] loan application .... The [Department] stated in no uncertain terms in its letter ... that it had 'carefully reviewed' [the plaintiff]'s application and had 'determined' that the proposed project was not eligible to receive a[ ] [ ] loan 'as a matter of law.' Furthermore, the agency also apparently determined that [the plaintiff]'s application was not substantially complete, and it stated that the [Department] would 'take no further action with respect to [the plaintiff's] application until such time as [he] ha[d] submitted an application that is substantially complete.' The series of letters from the [Department] to [the plaintiff] provide no indication that the [Department]'s determination regarding the status of [the plaintiff]'s application is at all tentative or open to any further reconsideration; indeed, the most recent correspondence unmistakably pushes the ball into [the plaintiff]'s court, suggesting steps that [the plaintiff] might take '[t]o aid in completing' its application, and thereby clearly indicating that the agency would not proceed to continue to evaluate its submission otherwise.
The Court also finds that the plaintiff has sufficiently alleged the second requirement for final agency action-that the action "affects the 'rights or obligations ... [or the] legal consequences' of thе party seeking review." Conservation Force,
The defendants' counterarguments regarding whether the Department's decision constitutes final agency action are not persuasive. In their reply, the defendants attempt to dismiss the plain language of defendant Ferber's letters, arguing that "[w]hatever certain passages in the correspondence might state, [ ] it is clear when viewed in the context of the entire exchange that no formal application was made, and no final agency action was rendered." Defs.' Reply at 4. The defendants specifically argue that the plaintiff "cannot plausibly show that he made a formal application for a [Certificate of Loss of Nationality]," id. at 5, because the "[p]laintiff failed to complete the entire application" and has failed to allege that he "ever personally appeared overseas before a consular officer, as is necessary in order to apply," id. at 4.
Additionally, the defendants argue that "[t]his case is, in essence, no different than several others where plaintiffs seeking different forms of expatriation failed to apply to the proper agency and, consequently, had their lawsuits dismissed." Defs.' Mem. at 21. The Court disagrees. The cases cited by the defendants, all involving plaintiffs seeking to expatriate pursuant to subsection (a)(6), are easily distinguishable because the plaintiffs in those cases never made a request to the appropriate agency in any manner and consequently, the agency took no action whatsoever. In Walker v. Holder, the plaintiff did "not allege[ ] that he [had] applied to [the Department of] Homeland Security or [the Department of Justice] to renounce his citizenship and was denied,"
Finally, to the extent that the defendants argue that their rejection of the plaintiff's request was not a final agency action because the defendants did not reach the merits of the plaintiff's expatriation claim, this argument lacks merit. The Court agrees with the conclusion in XP Vehicles that "an agency [need not] reach and determine the underlying merits of an application or petition-as distinguished from making a determination regarding initial eligibility criteria-so long as the agency has made a final and unequivocal decision with respect to what it does review."
The defendants additionally assert that even "assuming the [ ] Department rendered a final decision," the plaintiff "still fails to state an APA claim because he has not and cannot plausibly allege that [the d]efendants' actions were [ ] arbitrary and capricious; [ ] contrary to constitutional right, power, privilege or immunity, or [ ] in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." Defs.' Mem. at 25 (citing
The plaintiff's APA claims are primarily based on his position that the requirements the defendants purported to apply in denying his request for a Certificate of Loss of Nationality-including the in-person consular appearance requirement-violate the INA. See, e.g., Am. Compl. at 11 ("Section [ (a)(1) ] of the INA expressly does not require a personal appearance before a consular officer[,] nor does it confer authority to prescribe the form in which the renunciation shall take place[.]" (capitalization removed) ). Construing the plaintiff's amended complaint liberally, as the Court must, see Atherton,
Although the defendants do argue that the plaintiff has failed to state a claim that the defendants' action was "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right," Defs.' Mem. at 27-28 (quoting
[f]irst, [ ] analyze the statute applying customary rules of statutory interpretation. "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." If [the Court] conclude[s] that "the statute is silent or ambiguous with respect to the specific issue," however, [it] must next determine the deference, if any, [it] owe[s] the agency's interpretation of the statute. If the agency enunciates its interpretation through notice-and-comment rule-making or formal adjudication, [the Court] give[s] the agency's interpretation Chevron deference. That is, [it] determine[s] whether [the agency's] interpretation is "permissible" or "reasonable," giving "controlling weight" to the agency's interpretation unless it is "arbitrary, capricious, or manifestly contrary to the statute." On the other hand, if the agency enunciates its interpretation through informal action that lacks the force of law, we accept the agency's interpretation only if it is persuasive.
Mount Royal Joint Venture v. Kempthorne,
Second, as to Chevron step two, the defendants do not assert that the in-person consular appearance requirement is entitled to any level of deference from this Court. Given that the plaintiff explicitly argues in his opposition that "the [d]efendant[s'] interpretation[s] of the INA are ... not entitled to Chevron deference," Pl.'s Opp'n at 6, the Court finds that the defendants' have conceded for purposes of this motion that the Secretary's rules are not entitled to that particular level of deference, see Day v. D.C. Dep't of Consumer & Regulatory Affairs,
Furthermore, to the extent the defendants argue that the in-person consular appearance requirement is immune to challenge because "[c]ourts have consistently held that ... [s]ubsections (a)(1) through (a)(5) all require the person seeking to relinquish [United States] citizenship to be in a foreign country," Defs.' Mem. at 27, none of the decisions cited for this proposition in defendant Ferber's letters command this result, see Am. Compl., Ex. 14 (Nov. 9, 2016 Letter) at 1-2 (first citing Sluss v. USCIS,
In sum, the defendants' arguments are insufficient to satisfy their "burden ... to prove that no legally cognizable claim for relief exists" under § 706(2)(C) of the APA. Cohen,
The defendants further argue that the plaintiff cannot allege that the
Finally, in a two-sentence paragraph, the defendants argue that the plaintiff has failed to state a claim that the defendants' denial of the plaintiff's request was "contrary to constitutional right, privilege
B. The Defendants' Other Arguments
The defendants further argue that any claims for mandamus and declaratory relief raised by the plaintiff must also fail. Defs.' Mem. at 22-23. Again, the defendants have failed to meet their burden to demonstrate that these claims must be dismissed under Rule 12(b)(6).
First, the defendants argue that "[i]n the absence of a proper, complete [ ] application, [ ] no cause of action for declaratory relief accrues." Id. at 22 (first citing Walker v. Holder,
Similarly, the defendants argue that the plaintiff cannot state a claim for mandamus relief because he "fail[ed] to properly apply for a [Certificate of Loss of Nationality]," and therefore, "[thе d]efendants have no obligation to act." Defs.' Mem. at 23 (citing Tutora,
Having concluded that the defendants have not demonstrated that the plaintiff's claims must be dismissed, the Court must address two final matters. First, the Court will deny as moot the defendants' motion for relief from Local Civil Rule 7(n), which "seek[s] suspension of the requirements to file a certified administrative record or an appendix [ ] pending a ruling on [their] [m]otion to [d]ismiss." Defs.' Rule 7(n) Mot. ¶ 4. Because the Court concludes that it must deny the defendants' motion to dismiss, and therefore, the Court's ruling on that motion is no longer pending, the relief requested by the defendants is no longer necessary. Accordingly, the Court will order the defendants to now comply with the requirements of Local Civil Rule 7(n). Second, because the defendants have yet to respond to the plaintiff's motion for summary judgment, which raises many of the same legal issues which the Court has determined were inadequately addressed in the defendants' motion to dismiss, the
IV. CONCLUSION
For the foregoing reasons, the Court concludes that it must deny the defendants' motion to dismiss at this time because the plaintiff has adequately alleged that the Department rejected his request for a Certificate of Loss of Nationality and thereby took final agency action within the meaning of the APA, and the defendants have failed to demonstrate that the plaintiff's APA, mandamus, or declaratory relief claims must be dismissed at this time. Additionally, the Court concludes that it must deny as moot the defendants' motion for relief from Local Civil Rule 7(n), and order the defendants to comply with the requirements of that Rule and respond to the plaintiff's motion for summary judgment.
SO ORDERED this 16th day of April, 2018.
Notes
Under the INA, "naturalization" is defined as "the conferring of nationality of a state upon a person after birth, by any means whatsoever."
The Court takes judicial notice of Form DS-4079 and Form DS-4081 because they are both available on the Department's public website. See United States ex rel. Groat v. Boston Heart Diagnostics Corp.,
The Court also takes judicial notice of the judgment entered by the court in the plaintiff's federal criminal case. See HTC Corp. v. IPCom GmbH & Co., KG,
A search for the plaintiff's first and last name using the inmate locator on the Federal Bureau of Prisons website confirms that the plaintiff is currently incarcerated at the Big Spring Federal Correctional Institution. See Find an Inmate, Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited Apr. 12, 2018).
The plaintiff also invoked subsections (a)(2) and (a)(5) in his May 31, 2016 letter to former Ambassador LeVine, see Am. Compl., Ex. 6 (May 31, 2016 Letter) at 1, 5; however, none of the subsequent communications with the Department raise claims under these subsections, see generally Am. Compl., Exs. 6, 8, 10, 14, 16. And, the plaintiff does not base his claims in this Court on these subsections. See, e.g., Am. Compl. ¶ 9 (asserting that he "seeks a judicial determination of his loss of [United States] [n]ationality on the basis of his performance of [subsection] (a)(1)").
Exhibit 16 is an email from the plaintiff's counsel to the plaintiff, which purports to forward defendant Ferber's February 8, 2017 letter to the plaintiff's counsel. See Am. Compl., Ex. 16 (Feb. 8, 2017 Letter) at 1.
The plaintiff filed this notice in response to the Court's order instructing him to "file[ ] a notice indicating whether he is proceeding pro se in this matter or whether he is represented by Craig Harris Collins, on or before September 15, 2017." Minute Order (Aug. 31, 2017). The defendants state in their reply that "it appears that ... [the p]laintiff has complied with the Court's August 31, 2017[ ] [O]rder" and "also [ ] with [the signature requirement of] Fed. R. Civ. P. 11(a) regarding prior filings," but they "recognize that the Court has not ruled on these matters." Defs.' Reply at 3. The plaintiff having timely advised the Court on September 14, 2017, that he is proceeding pro se, see Pl.'s Notice at 1, the Court concludes that the plaintiff has complied with the Court's August 31, 2017 Order and has no further obligations pursuant to it. Furthermore, as the defendants do not take issue with the plaintiff's compliance with Fed. R. Civ. P. 11(a), the Court need not address that issue.
Although that member of this Court conducted her analysis under the ripeness doctrine and not the final agency action doctrine under the APA, she relied upon final agency action case law, noting that final agency action "jurisprudence has been adopted as applicable to ... ripeness analysis." XP Vehicles,
It appears that the District of Columbia Circuit has not ruled on the issue of whether expatriation is a right, constitutional or otherwise. See Schnitzler v. United States,
The defendants also assert that the plaintiff "never claims to have paid the mandatory, non-waivable fee for consular services in citizenship relinquishment cases, which is due at the time of the sworn signing before a consular officer of ... form DS-4079," Defs.' Reply at 5; however, the defendants concede in their motion that this "omission" is "not apparent from material that can be considered at this stage of the proceedings," Defs.' Mem. at 11 n.9. Therefore, the Court will not consider this issue.
The defendants have also made a cursory argument that the plaintiff's APA claim must fail because the plaintiff's "failure to allege that he properly applied ... for a [Certificate of Loss of Nationality]" means that he "has ... failed to exhaust his administrative remedies." Defs.' Mem. at 22 (citing Tutora,
The defendants do not assert that the Secretary's interpretation of his own regulations is at issue. See generally Defs.' Mot.; Defs.' Reply. Such interpretations require the Court to apply the "substantial deference" test, where "judicial deference towards an agency's interpretation is warranted only when the language of the regulation is ambiguous[, and t]he agency's interpretation [ ] will prevail unless it is erroneous or inconsistent with the plain terms of the disputed regulation." In re Sealed Case,
The defendants also argue that the plaintiff's claim under § 706(2)(C) of the APA must fail because the INA forecloses the plaintiff's theory that "loss [of nationality] occurs automatically without the Department's approval," Defs.' Mem. at 27, i.e., that the Secretary may not impose any additional requirements on expatriation beyond what is stated in the INA, see Defs.' Mem. at 27-28 (arguing that "[§] 1481(a)(1) does not produce loss of citizenship in a vacuum by operation of law" because "§ 1501 requires approval by the Secretary ... before a [Certificate of Loss of Nationality] is final"). Even if the Court agreed with the defendants on this point, that would not negate the viability of the plaintiff's claim because it does not resolve the question of whethеr the Secretary may impose an in-consular appearance requirement on the plaintiff. Therefore, the Court need not resolve at this time the broader question of whether the Secretary may impose any additional requirements beyond what is contained in the statute.
In declining to address legal issues not adequately raised by the defendants in relation to the plaintiff's claim under § 706(2)(B), the Court is also guided by the "fundamental rule of judicial restraint" that courts should "not reach constitutional questions in advance of the necessity of deciding them." Empresa Cubana Exportadora de Alimentos y Productos Varios v. U.S. Dep't of Treasury,
The plaintiff requests that the Court deny the defendants the opportunity to "cure [their] failure to follow [Local Civil Rule] 7(n)" and "accept the existing administrative record as complete," presumably referring to the exhibits attached to the plaintiff's Amended Complaint, Pl.'s Opp'n at 1, arguing that the defendants should not be permitted to file "[their] version of the record after the fact and with additional delays in the process,"