Chacoty v. Kerry ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BARAK CHACOTY, et al.,
Plaintiffs,
v.
Civil Action No. 14-764 (RDM)
REX W. TILLERSON, U.S. Secretary of
State, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiffs are eighteen Israeli citizens 1 and a Canadian citizen, all of whom were born
outside the United States. They contend that they are U.S. citizens by birth pursuant to 8 U.S.C.
§ 1401(c). That provision confers birthright citizenship on a person born abroad if both parents
are U.S. citizens and one parent “has had a residence in the United States” prior to the person’s
birth. Id. Each of the Plaintiffs applied to the State Department for proof of citizenship in the
form of Consular Reports of Birth Abroad (“CRBAs”). The State Department either denied their
CRBA applications or, for two of the Plaintiffs, revoked already-issued CRBAs. The
Department’s rationale: Plaintiffs are not, in fact, U.S. citizens because none of their parents
satisfy the residency requirement of § 1401(c).
Plaintiffs filed this action against the United States, Secretary of State Rex Tillerson, and
other State Department officials (collectively, “the Department”) asserting claims under the
Administrative Procedure Act (“APA”) and the Due Process Clause of the Fifth Amendment.
1
Technically, sixteen of these individuals are minors whose parents have brought this action on
their behalf. See Dkt. 28 at 5–8 (Am. Compl. ¶¶ 2–11, 14–20). For the sake of concision,
however, the Court uses the term “Plaintiffs” to denote the minors, not their parents.
They contend that the State Department applied an impermissibly strict interpretation of the term
“residence” in denying their applications, which is contrary to the plain terms of § 1401(c); that
the Department departed from its prior, longstanding interpretation of the statute without
following the requirements of the APA and the Department’s Foreign Affairs Manual; and that
the Department has not applied its new reading of the statute consistently nor embodied that
reading in Department “policy.”
The Department moves to dismiss on four grounds. Its principal contention is that the
Court lacks subject matter jurisdiction because Plaintiffs’ sole remedy lies in 8 U.S.C. § 1503.
Invoking the § 1503 remedy requires either (1) presence in the United States, which Plaintiffs do
not allege, or (2) a set of conditions that Plaintiffs have not fulfilled: application for a certificate
of identity, presence at a “port of entry” to the United States, an application for admission, and, if
necessary, a petition for a writ of habeas corpus. Second, the Department argues that, under the
general six-year statute of limitations for claims against the United States, 28 U.S.C. § 2401(a),
the claims of four of the Plaintiffs are untimely and that the Court, accordingly, lacks jurisdiction
over those claims. Third, the Department contends that all but two of the remaining Plaintiffs
have failed to allege facts sufficient to state claims for relief under the APA. Finally, the
Department disputes the adequacy of Plaintiffs’ due process claims.
As explained below, the Court concludes that for the most part, it has subject matter
jurisdiction because Plaintiffs’ claims arise under federal law and fall within the APA’s waiver
of sovereign immunity; it lacks subject matter jurisdiction over the claims of four Plaintiffs,
which are time barred; and the Department’s limited challenges to the factual specificity of
Plaintiffs’ individual APA claims and due process claims are unpersuasive. The Court will,
accordingly, GRANT the Department’s motion to dismiss in part and DENY it in part.
2
I. BACKGROUND
A. Statutory Framework
“The general rules for acquiring U.S. citizenship are found in 8 U.S.C. § 1401.” Sessions
v. Morales-Santana, 137 S. Ct. 1678, 1686 (2017); see Immigration and Nationality Act of 1952,
Pub. L. No. 82-414, § 301(a)(3), 66 Stat. 163, 235–36. That section sets forth “rules for
determining who ‘shall be nationals and citizens of the United States at birth’ by establishing a
range of residency and physical-presence requirements calibrated primarily to the parents’
nationality and the child’s place of birth.” Morales-Santana, 137 S. Ct. at 1686 (quoting 8
U.S.C. § 1401). The subsection relevant here, § 1401(c), confers birthright U.S. citizenship on
any person “born outside of the United States . . . of parents both of whom are citizens of the
United States and one of whom has had a residence in the United States . . . prior to the birth of
such person.” 8 U.S.C. § 1401(c). The term “residence” is defined as “the place of general
abode,” which in turn refers to “[a person’s] principal, actual dwelling place in fact, without
regard to intent.” 8 U.S.C. § 1101(a)(33).
Congress has charged the Secretary of State with “the administration and the enforcement
of . . . immigration and nationality laws relating to . . . the determination of nationality of a
person not in the United States.” 8 U.S.C. § 1104. Pursuant to that authority, the Secretary may
issue Consular Reports of Birth Abroad—or CRBAs—to U.S. citizens born abroad “[u]pon
application and the submission of satisfactory proof of birth, identity and nationality.” 22 C.F.R.
§ 50.7(a). The Secretary is also authorized to cancel a CRBA that was “illegally, fraudulently, or
erroneously obtained.” 8 U.S.C. § 1504(a). The issuance or rescission of a CRBA, however,
“affect[s] only the document and not the citizenship status of the person.” 8 U.S.C. § 1504(a).
3
This is because CRBAs, like passports, do not confer citizenship; rather, they merely provide
proof of one’s status as a citizen. See 22 U.S.C. § 2705.
In addition to prescribing conditions for birthright citizenship, the Immigration and
Nationality Act provides a remedy for anyone who is denied a “right or privilege” by the federal
government on “the ground that [s]he is not a national of the United States.” 8 U.S.C. § 1503.
That remedy, codified at 8 U.S.C. § 1503, encompasses the rejection of a CRBA application and
the revocation of a CRBA. See Xia v. Tillerson, 865 F.3d 643, 655 (D.C. Cir. 2017). An
aggrieved party seeking to take advantage of § 1503 must take one of two paths. If she is
“within the United States,” § 1503(a) creates a cause of action allowing her to seek a declaration
that she is a U.S. national. 8 U.S.C. § 1503(a). She need only make “a prima facie case
establishing [her] citizenship.” Perez v. Brownell, 356 U.S. 44, 47 n.2 (1958), overruled on
other grounds by Afroyim v. Rusk, 387 U.S. 253 (1967). The government must then produce
“clear, unequivocal, and convincing” evidence to rebut her showing. Id. (citation omitted).
If the aggrieved party is “not within the United States,” however, her route to relief under
§ 1503 is more difficult. Her starting point is § 1503(b), which permits an aggrieved party to
apply for a “certificate of identity” from the U.S. diplomatic or consular officer in the country in
which she resides. 8 U.S.C. § 1503(b). If the officer declines to issue a certificate of identity,
the applicant may appeal that decision to the Secretary of State. Id. But, even if she successfully
obtains a certificate of identity, the process does not end there; rather, the aggrieved party must
then travel to the United States and apply for admission at a port of entry as a U.S. citizen. 8
U.S.C. § 1503(c). If the Attorney General determines that she is not a U.S. citizen and therefore
“not entitled to admission,” her final recourse is to seek judicial review of the Attorney General’s
nationality determination by filing a petition for a writ of habeas corpus. Id.
4
B. Factual Background
Plaintiffs’ Third Amended Complaint, 2 Dkt. 28, sets forth the relevant facts, which the
Court must accept as true for purposes of the Department’s motion to dismiss. See Wood v.
Moss, 134 S. Ct. 2056, 2065–67 & n.5 (2014); Xia, 865 F.3d at 646.
Of the nineteen Plaintiffs, sixteen are minor Israeli citizens from nine different families
who reside in Israel and applied for CRBAs. See Dkt. 28 at 5–8 (Am. Compl. ¶¶ 2–11, 14–20).
Their requests were rejected by officials at the U.S. Consulate General in Jerusalem; the earliest
denial occurred in November 2007, the latest in April 2016. Id. at 10–11 (Am. Compl. ¶¶ 33, 39,
44). Two additional Plaintiffs, Kayla and Chana Sitzman, are Israeli citizens residing in Israel
whose CRBAs were revoked. Id. at 7, 10 (Am. Compl. ¶¶ 12–13, 32). The Consulate General
cancelled both CRBAs in August 2010. Id. at 10 (Am. Compl. ¶¶ 34–35). After the Sitzmans
timely appealed, the State Department affirmed the revocations in February 2012. Id. at 10 (Am.
Compl. ¶¶ 34–35). The final Plaintiff, Kenton Manning, is a Canadian citizen residing in
Canada. Id. at 8 (Am. Compl. ¶ 21). Manning’s “claim to U.S. [c]itizenship” was denied in July
2006. Id. at 11–12 (Am. Compl. ¶ 45). The State Department affirmed the decision in May
2007. Id. at 12 (Am. Compl. ¶ 46).
According to the complaint, each Plaintiff’s CRBA was either not approved or revoked
based on the State Department’s conclusion that neither of the applicant’s parents satisfied
§ 1401(c)’s residency requirement. Id. at 10 (Am. Compl. ¶¶ 32–33). Although the complaint
does not set forth the rationales or decisions provided by the State Department in each case, it
provides the following “example[s].” Id. at 13 (Am. Compl. ¶ 49).
2
For ease of reference, unless otherwise noted, the Court refers to the Third Amended
Complaint simply as “the complaint.”
5
First, in denying the application submitted on behalf of the three Chacoty children, the
U.S. Consulate General in Jerusalem concluded that “[t]he activities described in [the] affidavits
[submitted with the application] are the normal activities in which a person engages while on
visit. There is no indication that the United States was ever the place of general abode.” Id.
(Am. Compl. ¶ 49). Second, in denying the application submitted on behalf of the Spector child,
the Consulate General wrote, “Based on a thorough review of the information contained in your
application . . . it has been determined that your child did not acquire citizenship at birth because
neither [parent] had a ‘residence’ in the United States prior to the child’s birth.” Id. (Am.
Compl. ¶ 50). Third, in revoking the CRBAs issued to Chana and Kayla Sitzman, the State
Department explained that “[t]he sole issue for decision at the revocation hearing was whether
there was sufficient evidence . . . that [their mother’s] visits to the United States constituted
residence,” and the deciding official found that “the character of [her] visits to the United States
d[id] not constitute ‘residence’ within the meaning of” § 1401(c). Id. (Am. Compl. ¶ 51).
Finally, Plaintiffs attach to their complaint a letter from the Consul to the Consulate General
rejecting the CRBA application of the Nachshon child, noting that the trips that his parents took
to the United States before his birth never lasted longer than two months and concluding that
those “short trips to the U.S. were visits and indicate [that they] never established a residence
there.” Dkt. 28-4 at 1.
According to Plaintiffs, the State Department’s decisions denying their CRBA
applications constitute a substantial departure from prior practice and, indeed, a departure from
the practice at other embassies and consulates around the world. Until 2007, Plaintiffs assert, the
Department “published and disseminated a fact sheet” explaining that “if both parents were
[U.S.] citizens, they could transmit citizenship to their children provided that one of the parents
6
could show one day of physical presence in the United States.” Dkt. 28-1 at 1; see Dkt. 28 at 32
(Am. Compl. Conclusion).
At some point, however, the Department adopted a new approach that requires more to
establish “residence.” This new approach is reflected in “updates” to the Department’s Foreign
Affairs Manual and in at least one administrative decision, which is also attached to the
complaint. See Dkt. 28 at 15–16 (Am. Compl. ¶ 61–62); Dkt. 28-2 (final administrative
decision). Under that new approach, the consular officer must “take[] into account the nature
and quality of the person’s connection to the place.” Dkt. 28 at 15–16 (Am. Compl. ¶ 61)
(quoting 7 FAM 1133.5(b)). As a result, more is required “than a temporary presence”: “visits to
the United States,” without more, “are insufficient to establish residency for purposes of
citizenship transmission under” § 1401(c). Id. (Am. Compl. ¶ 61) (quoting 7 FAM 1133.5(b)).
Among other factors, the Department now considers whether the “person owns or rents property”
and “the duration of [the] person’s stay in a particular place in the United States.” Id. (Am.
Compl. ¶ 61) (quoting 7 FAM 1133.5(d), (f)); see also Dkt. 28-2 at 2 (final administrative
decision) (noting that “[r]esidence is not determined solely by the length of time spent in a place,
but also takes into account the nature and quality of the person’s connection to the place,” and
that “[g]enerally, visits to the United States are insufficient,” and, instead, the consular official
must engage in “a close examination, on a case[-]by[-]case basis, of the facts related to one’s
stay in the United States”).
The complaint alleges that the State Department further revised the relevant portions of
the Foreign Affairs Manual on February 24, 2016. Dkt. 28 at 17 (Am. Compl. ¶ 66). The
complaint does not, however, describe those revisions or whether or how they might bear on
Plaintiffs’ claims, all of which involve determinations made before February 24, 2016. Rather,
7
the complaint merely asserts that these revisions demonstrate that the State Department’s
“interpretation” of § 1401(c) is a “moving target.” Id. (Am. Compl. ¶¶66).
Based on these allegations, Plaintiffs seek declaratory and injunctive relief, including an
order directing that the State Department issue CRBAs to all of the Plaintiffs, except Kenton
Manning, “who should be issued a passport.” Dkt. 28 at 33 (Prayer for Relief). This relief is
warranted, in their view, for several reasons. They contend that the Department has
misinterpreted § 1401(c) and has—at least implicitly—impermissibly read an “intent” standard
into the statute. They also contend that the Department committed procedural errors in departing
from its prior interpretation of the statute by failing (1) to engage in notice and comment
rulemaking; (2) to follow the standards for revising the Foreign Affairs Manual set forth in the
manual itself; and (3) to adopt a policy applicable to all consular offices. They conclude that, as
a result of these errors, the Department has violated their rights under the Administrative
Procedure Act and the Due Process Clause of the Fifth Amendment.
II. ANALYSIS
The Department moves to dismiss on multiple grounds. It argues that the Court lacks
subject matter jurisdiction; that several claims are untimely; and that the complaint lacks
sufficient detail to state a claim or to identify the proper defendants. The Court will consider
each of these defenses in turn.
A. Subject Matter Jurisdiction
The Court starts, as it must, with subject matter jurisdiction. See Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 94 (1998). In suits against the government, subject matter
jurisdiction turns on at least “two different . . . questions.” Trudeau v. FTC, 456 F.3d 178, 183
(D.C. Cir. 2006). “First, has Congress provided an affirmative grant of subject-matter
8
jurisdiction? And, second, has Congress waived the United States’s immunity to suit?” Yee v.
Jewell, 228 F. Supp. 3d 48, 53 (D.D.C. 2017). “Only if Congress has done both” may the Court
reach the merits of the challenged claims. Id.
1. Affirmative Grant of Subject Matter Jurisdiction
Plaintiffs assert claims under the APA and the Due Process Clause. Because those claims
are premised on federal law, Plaintiffs have properly invoked the Court’s federal question
jurisdiction. 28 U.S.C. § 1331; see also Califano v. Sanders, 430 U.S. 99, 105 (1977) (“[Section
1331] confer[s] jurisdiction on federal courts to review agency action . . . .”). That is enough to
satisfy the first jurisdictional requirement. 3
2. Sovereign Immunity
Sovereign immunity is also “jurisdictional in nature” and, “[a]bsent a waiver, [it] shields
the Federal Government and its agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994);
see also United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that the United
States may not be sued without its consent and that the existence of consent is a prerequisite for
jurisdiction.”). The immunity of the United States extends to individual “officials [who are sued]
in their official capacities.” Clark v. Library of Cong., 750 F.2d 89, 103 (D.C. Cir. 1984).
3
Plaintiffs also contend that jurisdiction exists under the APA, 5 U.S.C. § 701 et seq., the
Declaratory Judgment Act, 28 U.S.C. § 2201, and the Mandamus Act, 28 U.S.C. § 1361. With
respect to the APA and the Declaratory Judgment Act, they are mistaken. Neither statute
constitutes an independent grant of subject matter jurisdiction. See Califano, 430 U.S. at 105
(APA); Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671–72 (1950) (Declaratory
Judgment Act). And, although the Mandamus Act does, at times, confer jurisdiction on federal
courts, it “is a law of last resort, available ‘only if [the plaintiff] has exhausted all other avenues
of relief and only if the defendant owes him a clear nondiscretionary duty.’” Yee, 228 F. Supp.
3d at 53 (quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)). Because 28 U.S.C. § 1331
provides a sufficient grant of subject matter jurisdiction, the Court need not pause over the high
hurdle posed by the Mandamus Act.
9
“[T]he terms of [the United States’s] consent to be sued . . . define [a] court’s jurisdiction to
entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586 (1941).
Although Plaintiffs do not expressly address this issue, they at least hint that the APA, 5
U.S.C. § 702, provides the requisite waiver. See Dkt. 28 at 9 (Am. Compl. ¶ 30). That premise,
at least as far as it goes, is correct. The first clause of § 702 waives the United States’s immunity
in actions “seeking relief other than money damages.” 5 U.S.C. § 702; see Cohen v. United
States, 650 F.3d 717, 723 (D.C. Cir. 2011). This waiver, importantly, applies to “any suit that
meets its conditions, ‘whether under the APA or not.’” Yee, 228 F. Supp. 3d at 54 (quoting
Trudeau, 456 F.3d at 186). Section 702 then carves out two exceptions to that waiver: “Nothing
herein (1) affects other limitations on judicial review . . . ; or (2) confers authority to grant relief
if any other statute that grants consent to suit expressly or impliedly forbids the relief which is
sought.” 5 U.S.C. § 702. This proviso “prevents plaintiffs from exploiting the APA’s waiver to
evade limitations on suit contained in other statutes.” Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, 567 U.S. 209, 215 (2012).
Against this backdrop, the Court must answer two questions: “Does [§ 702] waive
sovereign immunity with respect to [Plaintiffs’] claims, and does [some other statute]
provide ‘other limitations on judicial review’” or forbid the relief sought? Cohen, 650
F.3d at 722 (quoting 5 U.S.C. § 702). The answer to the first question is straightforward:
Plaintiffs seek only declaratory and injunctive relief, not money damages. Their APA
and Due Process Clause claims, therefore, fall within the APA’s affirmative waiver of
sovereign immunity.
The answer to the second question, however, requires more extensive analysis;
the Court must consider whether the proviso of § 702 “takes away” what the preceding
10
portion of § 702 grants. Harrison v. Bureau of Prisons, 248 F. Supp. 3d 172, 182
(D.D.C. 2017). The Department argues that this case falls within the proviso by virtue of
three different statutes: (1) 8 U.S.C. § 1503, which the Department contends provides an
exclusive remedy and thus “impliedly forbids the relief” Plaintiffs seek; (2) the “no other
adequate remedy” provision of the APA, 5 U.S.C. § 704, which the Department argues
limits the APA’s waiver of sovereign immunity; and (3) the general six-year statute of
limitations in 28 U.S.C. § 2401(a), which the Department argues abrogates the waiver of
sovereign immunity for untimely claims.
a. 8 U.S.C. § 1503
The Department devotes the lion’s share of its motion to its contention that § 1503
constitutes an exclusive remedy and thus impliedly forbids the relief sought by the
Plaintiffs under other provisions of law. The Court is unpersuaded.
As explained above, § 1503 provides two paths to challenge the denial of a “right
or privilege as a national of the United States” on the ground that the applicant “is not,”
in fact, “a national of the United States.” 8 U.S.C. § 1503. The first path is available
only to those who are “within the United States.” Id. § 1503(a). The second path, in
contrast, applies to those outside the United States, and it requires that the aggrieved
party take a number of steps before obtaining judicial review. Id. § 1503(b), (c).
According to the Department, Plaintiffs have failed to allege facts or otherwise to
demonstrate that any of them have followed either path. The specified procedures, the
Department adds, establish the exclusive avenue for establishing jurisdiction over claims
11
like those asserted here. And, because the § 1503 remedy is exclusive, it impliedly
precludes review under the APA or any other law. 4
If the Department were correct that § 1503 establishes an exclusive remedy, the
waiver of sovereign immunity contained in § 702 of the APA would be unavailable, and
the Court would lack jurisdiction. See Sagar v. Lew, 211 F. Supp. 3d 262, 268 (D.D.C.
2016). The Supreme Court, however, has expressly rejected the premise of the
Department’s argument. In Rusk v. Cort, 369 U.S. 367 (1962), abrogated on other
grounds by Califano, 430 U.S. 99, the Court confronted a question similar to that posed
here, and it held that “Congress did not intend to foreclose lawsuits by claimants . . . who
do not try to gain entry to the United States before prevailing in their claims to
citizenship,” id. at 379. The Court provided two principal reasons for reaching that
conclusion. First, § 1503(b) and (c) provides that an aggrieved party “may” apply for a
certificate of identity and “may” apply for admission into the United States. Id. at 375.
The Court, accordingly, concluded that “[t]he language of the section shows no intention
to provide an exclusive remedy;” that is, the language of the statute is permissive, not
mandatory. Id. (internal quotation marks and citation omitted). Second, the legislative
history shows that “the purpose of § [1503(b) and (c)] was to cut off the opportunity
which aliens had abused . . . to gain fraudulent entry to the United States by prosecuting
4
At the same time the Department argues that Plaintiffs have not brought any claims under
§ 1503, it argues that the Court should dismiss their (non-existent) § 1503 claims. The latter
contention is without foundation. To be sure, Plaintiffs’ opposition states that they are “willing
. . . to posit [§] 1503 as a plausible vehicle for this litigation,” Dkt. 33-1 at 2, but their complaint
does not, in fact, assert a cause of action under that statute. It goes without saying that the Court
ought not adjudicate the merits of hypothetical claims that Plaintiffs could have, but did not,
assert. For the same reason, the Court need not address the Department’s argument that it is
“[i]mpossible” to determine the proper defendant for Plaintiffs’ hypothetical § 1503 claims. See
Dkt. 31-1 at 44.
12
spurious citizenship claims,” and not to limit the relief otherwise available to those, like
Plaintiffs here, who remain outside the United States. Id. at 379. As the Supreme Court
further explained, “[t]he teaching” of earlier decisions, which were left unaffected by
§ 1503(b) and (c), “is that the Court will not hold that the broadly remedial provisions of
the [APA] are unavailable to review administrative decisions under the 1952
[Immigration and Nationality] Act in the absence of clear and convincing evidence that
Congress so intended.” Id. at 379–80. Cort, therefore, is clear: § 1503 is not an
exclusive remedy. 5
Nor is the Court convinced by the Department’s efforts to distinguish Cort. It
argues, first, that the plaintiff in Cort, unlike the Plaintiffs in this case, had been
previously recognized by the United States as a citizen and, second, that there was a
“near certainty” that the plaintiff in Cort would have been “arrested and prosecuted” if he
had returned to the United States because of a pending indictment. Dkt. 34 at 7–8; see
Cort, 369 U.S. at 375. But the Supreme Court’s reasoning in Cort sweeps more broadly
than that. Cort’s holding—that “a person outside the United States who has been denied
a right of citizenship is not confined to the procedures prescribed by [§ 1503](b) and
(c)”—rested on the text and legislative history of § 1503. 369 U.S. at 379. It was not
confined to the particular facts of the case. Thus, although the Department has identified
5
In Califano v. Sanders, the Supreme Court overruled Cort to the extent that Cort “assumed . . .
that the APA is an independent grant of subject-matter jurisdiction.” 430 U.S. at 105. Cort’s
holding that § 1503 is not an exclusive remedy, however, remains good law. See Rafeedie v.
Immigration & Naturalization Serv., 880 F.2d 506, 511 (D.C. Cir. 1989) (citing Cort and
reiterating that § 1503 does not foreclose claims under the APA); accord Xia, 865 F.3d at 658
(remanding case to district court “for further consideration of the APA claims, or for transfer of
those claims together with the section 1503 claims”).
13
factual distinctions between Cort and this case, neither distinction makes a difference.
Section 1503 does not implicitly forbid the relief sought here.
b. Section 704 of the APA
The Department also posits that another provision of the APA, 5 U.S.C. § 704,
restricts § 702’s waiver of sovereign immunity to instances in which there is “no other
adequate remedy in a court.” Dkt. 31-1 at 45 (quoting 5 U.S.C. § 704). Section 704
provides that “[a]gency action made reviewable by statute and final agency action for
which there is no other adequate remedy in a court are subject to judicial review.” 5
U.S.C. § 704. Section 704, however, unlike § 702, is neither a grant nor a limitation on
the jurisdiction of the federal courts; instead, it defines the scope of review available
under the APA itself. Trudeau, 456 F.3d at 185. This is a critical distinction because the
APA’s waiver of sovereign immunity and its cause of action are not coterminous; the
waiver of sovereign immunity applies to nonmonetary claims against the United States
“regardless of whether the elements of an APA cause of action are satisfied.” Id. at 187.
As a result, the waiver of sovereign immunity “applies regardless of whether the
[challenged conduct] constitutes ‘final agency action’” under § 704, id., and, more
importantly for present purposes, regardless of whether an “adequate remedy” is
available under another provision of law. 6 The Court does not foreclose the possibility
6
The Department also invokes § 704 to assert that the APA does not provide an affirmative
grant of subject matter jurisdiction “unless a plaintiff is challenging a ‘final agency action,’” Dkt.
31-1 at 38 (quoting 5 U.S.C. § 704), and argues that “the State Department’s denial of CRBAs
does not constitute final agency action,” id. To the extent the Department means that the absence
of a final agency action undercuts the waiver of sovereign immunity in § 702, that argument fails
for the reasons described above. And, to the extent the Department means that the absence of a
final agency action undercuts the statutory grant of subject matter jurisdiction, that argument
fails because 28 U.S.C. § 1331—and not the APA—confers subject matter jurisdiction over
14
that § 704 may provide a basis to challenge the legal sufficiency of Plaintiffs’ claims—as
opposed to the Court’s jurisdiction. The Department, however, has not made that
argument.
c. General Statute of Limitations
The Department advances one final theory for why the United States has not waived its
sovereign immunity. Unlike its first two arguments, this one hits the mark—at least with respect
to four of the Plaintiffs: the Mayerson child, the Shulem children, and Kenton Manning. Dkt.
31-1 at 46–47.
28 U.S.C. § 2401(a) bars “every civil action commenced against the United States . . .
unless the complaint is filed within six years after the right of action first accrues.” 28 U.S.C.
§ 2401(a). “Unlike an ordinary statute of limitations, § 2401(a) is a jurisdictional condition
attached to the government’s waiver of sovereign immunity, and as such must be strictly
construed.” Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52, 56 (D.C. Cir. 1987); see also P & V
Enters. v. U.S. Army Corps of Eng’rs, 516 F.3d 1021, 1026 (D.C. Cir. 2008). As a result,
because Plaintiffs filed their original complaint on May 2, 2014, Dkt. 2, § 2401(a) bars any claim
that accrued before May 2, 2008.
To decide which, if any, claims are barred, the Court must first determine when the
claims accrued. Neither party grapples with this issue. The Department simply posits, without
explanation, that the statute of limitations began to run when each of the CRBA applications was
denied. See Dkt. 31-1 at 46–47. Plaintiffs, for their part, do not challenge that premise but,
Plaintiffs’ claims. Indeed, as the Department itself stresses, the APA is not a jurisdiction-
conferring statute, see Dkt. 31-1 at 40–41 (citing Califano, 430 U.S. at 105), and, as the D.C.
Circuit has held, § 704’s “finality requirement [is] not jurisdictional,” Sierra Club v. Jackson,
648 F.3d 848, 854 (D.C. Cir. 2011).
15
instead, argue that “any Plaintiffs who arguably fall outside of any applicable statutes of
limitation[s] have reapplied, or are in the process of reapplying, for CRBAs, thus restarting any
applicable clock.” Dkt. 28 at 30 (Am. Compl. ¶ 93).
In the typical case, a right of action challenging administrative action accrues on the date
of the final agency action. See Harris v. FAA, 353 F.3d 1006, 1010 (D.C. Cir. 2004). This
means, at least for purposes of Plaintiffs’ APA claims, that their causes of action accrued when
the State Department took an “action . . . mark[ing] the ‘consummation’ of the agency’s
decisionmaking process;” that was not of a “tentative or interlocutory nature;” and that had
“legal consequence[].” Id. (quoting Bennett v. Spear, 520 U.S. 154, 177–78 (1997)). The D.C.
Circuit has further explained that an agency action remains interlocutory until the claimant has
exhausted “statutorily required or permitted review,” but, “where no formal review procedure
exist[s], the cause of action accrue[s] when the agency action occur[s].” Impro Prods., Inc. v.
Block, 722 F.2d 845, 850–51 (D.C. Cir. 1983).
In some tension with its statute of limitations argument, the Department argues elsewhere
in its brief that “the State Department’s denial of CBRAs does not constitute final agency
action.” Dkt. 31-1 at 38. If true, that would mean that Plaintiffs’ claims are premature—not that
they are untimely. The Court, however, is unconvinced, at least on the present record, that the
denial of a CBRA does not constitute a final agency action. The Department’s argument to the
contrary collapses back on its argument that § 1503 provides the exclusive remedy for the denial
of a CRBA. It argues, in short, that the “denials of the CRBAs are an intermediate step in a
regulatory and statutory structure that culminates in the process outlined in Section 1503”—that
is, the process that requires one to obtain a certificate of identity, appear at the U.S. border, and
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seek entry. Id. at 39. But, for the reasons discussed above, the Court has already concluded that
Plaintiffs are not required to proceed under § 1503 and that, in fact, they have not done so.
Were some other formal process of agency review required or permitted, that might well
render Plaintiffs’ claims premature. Neither party, however, has identified any such process. To
be sure, the State Department’s Foreign Affairs Manual appears to permit an applicant’s family
to “submit additional evidence at any time” and to seek “reconsideration of the case.” 7 FAM
1444.3-2(B)(7); see also 7 FAM 1445.9(b) (“No formal application or filing of an appeal need be
taken when submitting such evidence.”). But that process, at least as described in the quoted
portions of the Foreign Affairs Manual, lacks the formality or structure required to postpone the
finality of the denial of a CRBA; to the contrary, it permits the submission of additional evidence
“at any time” and would, thus, delay final action indefinitely in most, if not all, cases.
Plaintiffs add their own twist, alleging that “any Plaintiffs who arguably fall outside of
any applicable statute of limitations have reapplied, or are in the process of reapplying for
CRBAs, thus restarting any applicable clock.” Dkt. 28 at 30 (Compl. ¶ 93). Like the
Department’s argument, that argument is potentially self-defeating; to the extent those Plaintiffs
are still pressing their claims before the State Department, they are not time-barred, but they are
premature. Once again, however, the Court is unconvinced, at least on the present record, that
Plaintiffs’ claims remain inchoate. As the Supreme Court has observed:
[W]here a petition for reconsideration has been filed within a discretionary review
period specifically provided by the agency (and within the period allotted for
judicial review of the original order), . . . the petition tolls the period for judicial
review of the original order, which can therefore be appealed to the courts directly
after the petition for reconsideration is denied.
Bhd. of Locomotive Eng’rs, 482 U.S. at 279; see also Columbia Falls Aluminum Co. v. EPA, 139
F.3d 914, 919 (D.C. Cir. 1998) (“A party’s pending request for agency reconsideration renders
‘the underlying action nonfinal . . . .’”); Riffin v. Surface Transp. Bd., 331 F. App’x 751, 752
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(D.C. Cir. 2009) (“By filing a timely petition to reopen, [the plaintiff] rendered the Board’s
decision nonfinal . . . .”); Bristol-Myer Squibb Co. v. Kappos, 841 F. Supp. 2d 238, 242–43
(D.D.C. 2012). Here, however, the Court does not understand Plaintiffs to allege that the
Department is in the process of considering requests for reconsideration, much less requests filed
within “a discretionary review period specifically provided by the agency.” They allege, instead,
that they have “reapplied” for CRBAs. The Court is unaware of any authority supporting the
proposition that a new application for relief restarts the statute of limitations with respect to an
earlier application, which was denied in a final agency determination. Accepting that argument,
moreover, would prove far too much for the reasons discussed in the preceding paragraph. It
would, in effect, render the statute of limitations meaningless because an aggrieved party who
failed to bring a timely challenge could resuscitate the untimely claim by “reapplying” for relief.
It is, of course, possible that the applicant could bring an action challenging the denial of the new
application (without regard to the earlier application), but that question is not before the Court.
The Court, accordingly, concludes that any Plaintiff who received a final denial
(including the resolution of any administrative appeal) of his or her CRBA application before
May 2, 2008, has not brought a timely challenge to that decision. The claims of the Mayerson
Plaintiff (application denied on February 25, 2008) and the claims of the two Shulem Plaintiffs
(applications denied on November 15, 2007) are thus untimely. Dkt. 28 at 11 (Am. Compl.
¶¶ 39, 40). In addition, Kenton Manning’s “claim to U.S. [c]itizenship” was initially denied on
July 3, 2006, and affirmed by the State Department on May 24, 2007, and is, therefore, also
untimely. Id. at 11–12 (Am. Compl. ¶¶ 45–46).
The Court will, accordingly, dismiss the claims of the Mayerson Plaintiff, the
Shulem Plaintiffs, and Kenton Manning for lack of subject matter jurisdiction.
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B. Adequacy of Complaint
1. Individual APA Claims
Although the Department raises a host of issues that it says deprive the Court of
jurisdiction, its challenge to the legal sufficiency of Plaintiffs’ claims on the merits is narrowly
focused. It argues that, with the exception of the Sitzman Plaintiffs, Plaintiffs have failed “to
allege any particularized facts relating to their parents’ time in the United States or whether [one
of their parents] had a residence in the United States before the birth of their children outside the
United States.” Dkt. 31-1 at 28. As a result, the Department concludes, Plaintiffs have not stated
plausible claims for relief under any interpretation of § 1401(c)’s residency requirement. Id. at
27.
The complaint alleges that the Department denied Plaintiffs’ applications for CRBAs “on
[the] grounds that” the U.S. citizen parent did “not satisf[y]” the residency requirement of
§ 1401(c). Dkt. 28 at 12 (Am. Compl. ¶ 48). The complaint further asserts that the Department,
“[i]n the denial letters,” explained that the parents’ “activities in the United States” were not “the
activities of someone residing in the United States.” Id. (Am. Compl. ¶ 48). These allegations
permit the reasonable inference that at least one of the parents of each Plaintiff has, in fact, spent
some period of time in the United States before the Plaintiff was born and that § 1401(c)’s other
requirements were satisfied.
Because the thrust of the Department’s motion to dismiss turns on the lack of factual
specificity in the complaint, and not on the legal sufficiency of Plaintiffs’ theory that a single
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day’s presence in the United States is sufficient, the Court will deny the Department’s motion
and will leave for another day the question whether a single day or very brief visit is sufficient. 7
2. Due Process Claims
The Department notes that “it is unclear” whether Plaintiffs intend to assert their
constitutional due process claims under Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971), and, out of caution, it raises several reasons why the Court
should dismiss any Bivens claims that Plaintiffs might be deemed to have brought. Dkt. 31-1 at
47–48. In Bivens, the Supreme Court “held that . . . it would enforce a damages remedy to
compensate persons injured by federal officers who violated the prohibition against unreasonable
searches and seizures.” Zigler v. Abbasi, 137 S. Ct. 1843, 1854 (2017). Because Plaintiffs have
not sought damages, see Dkt. 28 at 33 (Am. Compl. Prayer), their due process claims are not
grounded in Bivens.
The Department has not raised any other objections to Plaintiffs’ due process claims.
The Court will, therefore, deny the Department’s motion to dismiss these claims.
7
To the extent Plaintiffs intend to argue that their parents had more substantial contact with the
United States and that the Department erred in denying their CRBA applications because of that
more substantial contact, that theory is not set forth in the complaint.
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CONCLUSION
For the reasons stated above, it is hereby ORDERED that the Department’s motion to
dismiss, Dkt. 31, is hereby GRANTED in part and DENIED in part.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: January 16, 2018
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