Carmichael v. Pompeo

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DAVID ALAN CARMICHAEL, et al., :
:
Plaintiffs, : Civil Action No.: 19-2316 (RC)
:
v. : Re Document Nos.: 24, 28
:
MICHAEL RICHARD POMPEO, in his :
Official capacity as Secretary of State, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; DENYING
PLAINTIFFS’ PARTIAL MOTION FOR SUMMARY JUDGMENT AND INJUNCTION; DENYING
PLAINTIFFS’ ADDITIONAL PENDING MOTIONS
I. INTRODUCTION
This case concerns Plaintiffs David Alan Carmichael, Lawrence Donald Lewis, and
Mitchell Pakosz (“Plaintiffs”) and Defendants Michael Richard Pompeo, sued in his official
capacity as Secretary of State, and the U.S. Department of State (“the Government”).
Carmichael, Lewis, and Pakosz attempted to renew their U.S. passports in 2018, 2019, and 2017
respectively, and each requested a religious accommodation from the requirement that they
provide their social security numbers on their passport renewal applications. Carmichael, Lewis,
and Pakosz assert that identifying with a social security number is prohibited by their Christian
faith. While Carmichael’s renewed passport was initially granted, it was later revoked after the
Government determined that Carmichael had not provided his social security number in his
renewal application, and his passport had thus been issued erroneously. Lewis and Pakosz’s
passport renewal applications were denied for failure to provide social security numbers.
Carmichael, Lewis, and Pakosz brought nine causes of action against the Government
under the U.S. Constitution and various federal statutes, including the First Amendment, the
Fifth Amendment, the Ninth Amendment, the Foreign Relations Authorization Act, the Religious
Freedom Restoration Act, the Privacy Act, Executive Order 13798, and federal criminal statutes.
The Government has moved to dismiss for lack of subject matter jurisdiction and for failure to
state a claim, or, in the alternative, for summary judgment. In response, Carmichael, Lewis, and
Pakosz move for partial summary judgment and ask for an injunction on their first cause of
action under the Foreign Relations Authorization Act. For the reasons set forth below, the Court
largely grants the Government’s motion to dismiss and denies Plaintiffs’ motion for partial
summary judgment. However, the Court finds that Plaintiffs state a proper claim under the
Religious Freedom Restoration Act and that the Government is not entitled to summary
judgment on that claim. Additionally, the Court finds that Plaintiffs have properly stated a claim
under the Privacy Act.
II. FACTUAL BACKGROUND
In 2007 Plaintiffs Carmichael and Pakosz applied for U.S. passports, and both men asked
for a religious accommodation exempting them from the requirement that they provide their
social security number on the application. Am. Compl. ¶¶ 16–17, ECF No. 15. Plaintiff Lewis
did the same in 2008. Id. ¶ 18. All three plaintiffs received passports, despite not including their
social security numbers on their passport applications. Id. ¶¶ 16–18. Carmichael, Lewis, and
Pakosz assert that they are “prohibited from identifying with a Social Security Number . . . on the
basis of the Christian religion” and “[a]ny demand for either of them to identify with a [social
security number] places a substantial burden upon their religion.” Id. ¶ 14. While Carmichael,
Lewis, and Pakosz allege that they were granted a religious accommodation when they were
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originally issued passports, see id. ¶¶ 16–18, the Government asserts that “[t]here was no
consideration of [a] claim for a religious accommodation,” and applicants were not required to
provide social security numbers in their passport applications at that time, Rolbin Decl. ¶ 4, ECF
No. 24–2. However, The Government notes that the Fixing America’s Surface Transportation
(“FAST”) Act, enacted in 2015, granted the Government the authority to “deny a passport
application if the applicant fails to provide their [social security number].” Id.
In 2018, Carmichael applied to renew his passport, and, again, he requested a religious
accommodation to the requirement that he provide his social security number in his passport
renewal application. Am. Compl. ¶ 19. Lewis and Pakosz applied to renew their passports, also
including a request for a religious accommodation, in 2019 and 2017, respectively. Id. ¶¶ 20–21.
With their passport renewal applications, Carmichael, Lewis, and Pakosz sent letters to the
Government explaining why identifying with a social security number violated their religious
beliefs. See id. ¶¶ 19, 42–43, 55, 57. Plaintiffs’ passport renewal applications were also
accompanied by a “Privacy Act Statement” from the Government that outlined the authority
under which the Government requested Plaintiffs’ social security numbers, the purpose of
requesting the social security numbers, and a non-exhaustive list of routine uses for information
collected from passport renewal applications. Id. ¶ 104; see also Pls.’ Mem. Supp. Resp. Mot.
Dismiss and Cross Mot. Summ. J. (“Pls.’ Mem.”), ¶ 57(ii), ECF No. 27–1 (reproducing the
statement as an undisputed fact). The “Privacy Act Statement” also included a statement that,
while providing the requested information was voluntary, failing to provide that information
could result in a processing delay or application denial. Am. Compl. ¶ 104; see also Pls.’ Mem.
¶ 57(ii).
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Carmichael’s passport renewal was approved, and his renewed passport was issued in
January 2018 without Carmichael providing his social security number on his application. Am.
Compl. ¶ 19. However, the Government contacted Lewis and Pakosz, asking each to either
provide his social security number or sign a statement that he had never been issued one. Id. ¶¶
46, 56. Both Lewis and Pakosz responded that they could not sign a statement that they had
never been issued a social security number and reiterated their request for a religious
accommodation. See id. ¶¶ 47, 56–67. Both Lewis and Pakosz’s passport renewal applications
were subsequently denied. Id. ¶¶ 49, 68. Neither Lewis nor Pakosz was given the opportunity to
appeal the denial. Id. ¶¶ 26, 82; see also id. ¶ 124 (asserting that all three Plaintiffs were denied
an appeal process).
After Pakosz’s application was denied, Pakosz contacted Carmichael for assistance, and,
on Pakosz’s behalf, Carmichael spoke to an employee of the Government who stated that there
was no appeal process for the denial of a religious accommodation. Id. ¶¶ 26–27. Carmichael
and Pakosz then filed Freedom of Information Act (“FOIA”) requests for the names and contact
information of Department employees involved in processing passport applications, see id. ¶¶ 29,
73, and sent letters to various politicians, including President Donald Trump and Vice President
Mike Pence, among others, further explaining their request for a religious accommodation, id. ¶¶
31, 69–71, 76–79, 86. Enclosed with one letter to the Government, Pakosz states that he “sent
information that explains the SSN offence against religion in a document called ‘The Mark of
The Beast . . . It Is Here, Now.’” Id. ¶ 69.
Approximately three months later, Carmichael received a letter from the Government
stating that his renewed passport had been issued erroneously because he did not provide his
social security number in his passport renewal application, that his passport had been revoked
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pursuant to 22 C.F.R. § 51.62(a)(2), and that he could request an appeal hearing. Id. ¶ 33.
Carmichael seemingly did not request a hearing. Def. Mot. Dismiss (“Gov’t Mot.”) at 20, ECF
No. 24; see also Am. Compl. (nowhere mentioning that Carmichael availed himself of this
opportunity for a hearing).
Carmichael brought this action on July 31, 2019, see Compl., ECF No. 1, and Plaintiffs
Lewis and Pakosz were added to this action in November 2019, see Order, ECF, No. 11.
Carmichael, Lewis, and Pakosz filed their amended complaint in December 2019, in which they
raise nine causes of action under the United States Constitution and various federal laws. See
Am. Compl. The Government now moves to dismiss, or in the alternative for summary
judgment, on all nine causes. See Gov’t Mot. Carmichael, Lewis, and Pakosz move for partial
summary judgment and request an injunction on their first cause of action under the Foreign
Relations Authorization Act. See Pls. Mem.
III. LEGAL STANDARD
Federal courts have subject-matter jurisdiction where a claim “arises under” federal law.
Merrell Dow Pharm. Inc., v. Thompson, 478 U.S. 804, 808 (1986). “Rule 12(b)(1) presents a
threshold challenge to the Court’s jurisdiction . . . [and] the Court is obligated to determine
whether it has subject-matter jurisdiction in the first instance.” Curran v. Holder, 626 F. Supp.
2d 30, 32 (D.D.C. 2009) (quoting Agrocomplect, AD v. Republic of Iraq, 524 F. Supp. 2d 16, 21
(D.D.C. 2007)). Subject-matter jurisdiction cannot be waived, and “[w]hile pro se complaints
are held to a less stringent standard than other complaints, even a pro se plaintiff bears the
burden of establishing that the Court has subject-matter jurisdiction.” Id. at 33 (citations and
internal quotations omitted); see also Jathoul v. Clinton, 880 F. Supp. 2d 168, 170 (D.D.C. 2012)
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(“To survive a motion to dismiss under Rule 12(b)(1), Plaintiff bears the burden of proving that
the Court has subject-matter jurisdiction to hear her claims.”).
To evaluate “a motion to dismiss under Rule 12(b)(1), [courts] must treat the complaint’s
factual allegations as true . . . [granting] plaintiff the benefit of all inferences that can be derived
from the facts alleged.” Clinton, 880 F. Supp. 2d at 169 (internal quotations omitted) (quoting
Sparrow v. United Air Lines, 216 F.3d 1111, 1113 (D.C. Cir. 2000)). Courts are not required to
accept “legal conclusion[s] couched as factual allegations[s]” as true. Id. (quoting Trudeau v.
Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006)). Dismissal under Rule 12(b)(1) for
lack of subject-matter jurisdiction is justified where a claim is “‘immaterial and made solely for
the purpose of obtaining jurisdiction’ or [it] is ‘wholly insubstantial and frivolous.’” Arbaugh v.
Y&H Corp., 546 U.S. 500, 513 n. 10 (2006) (quoting Bell v. Hood, 327 U.S. 678, 682–3 (1946)).
The Federal Rules of Civil Procedure also require that a complaint contain “a short and
plain statement of the claim” in order to give the defendant fair notice of the claim and the
grounds upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff’s ultimate
likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim.
See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A court considering such a motion presumes
that the complaint’s factual allegations are true and construes them liberally in the plaintiff’s
favor. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). It
is not necessary for the plaintiff to plead all elements of her prima facie case in the complaint.
See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511–14 (2002); Bryant v. Pepco, 730 F. Supp.
2d 25, 28–29 (D.D.C. 2010).
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Nevertheless, “[t]o survive a motion to dismiss, 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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). This means that a plaintiff’s factual allegations “must be enough to raise a right to relief
above the speculative level, on the assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Twombly, 550 U.S. at 555–56 (citations omitted). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,” are
therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not
accept a plaintiff’s legal conclusions as true, see id., nor must a court presume the veracity of
legal conclusions that are couched as factual allegations, see Twombly, 550 U.S. at 555.
Finally, a court may grant summary judgment when “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.” Fed. R. Civ. P. 56(a). A “material” fact is one capable of affecting the substantive
outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute is “genuine” if there is enough evidence for a reasonable jury to return a verdict for the
non-movant. See Scott v. Harris, 550 U.S. 372, 380 (2007).
The principal purpose of summary judgment is to streamline litigation by disposing of
factually unsupported claims or defenses and determining whether there is a genuine need for
trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial
burden of identifying portions of the record that demonstrate the absence of any genuine issue of
material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the non-
movant must point to specific facts in the record that reveal a genuine issue that is suitable for
trial. See Celotex, 477 U.S. at 324. In considering a motion for summary judgment, a court must
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“eschew making credibility determinations or weighing the evidence[,]” Czekalski v. Peters, 475
F.3d 360, 363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the
light most favorable to the non-movant, see Anderson, 477 U.S. at 255. Nevertheless,
conclusory assertions offered without any evidentiary support do not establish a genuine issue
for trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
IV. ANALYSIS
A. Plaintiffs’ First Cause of Action
First, Plaintiffs claim that the Government violated 22 U.S.C. § 2721 by denying Pakosz
and Lewis’s passport renewal applications and revoking Carmichael’s passport after they failed
to provide their social security numbers on their passport renewal applications. Am. Compl. ¶¶
114–16. 22 U.S.C. § 2721 provides that “[a] passport may not be denied issuance, revoked,
restricted, or otherwise limited because of any speech, activity, belief, affiliation, or membership
within or outside the United States, which, if held or conducted within the United States, would
be protected by the first amendment . . . .” 22 U.S.C. § 2721.
The Government’s correspondence with Plaintiffs indicate that Lewis and Pakosz’s
passport renewal applications were denied because they did not include their social security
numbers on the renewal application. Am. Compl. ¶¶ 49, 68. Furthermore, the Government’s
correspondence with Carmichael indicates that Carmichael’s passport was revoked because he
also did not provide his social security number on his renewal application and, thus, his passport
had been erroneously issued. Id. ¶ 33.
The Government acted within its authority to deny passports to applicants who fail to
provide their social security numbers, see 22 C.F.R. § 51.60(f); see also 22 U.S.C. § 2714a(f)(1),
and to revoke passports that have been issued erroneously, see 22 C.F.R. § 51.62; see also 22
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U.S.C. § 2714a(f)(2). Plaintiffs do not cite any facts suggesting that the Government instead
denied and revoked their passports because of their religious belief. To the extent that Plaintiffs
claim that requiring them to provide their social security numbers on their passport renewal
applications burdens their religious beliefs, that claim is addressed below in the Court’s
discussion of the Religious Freedom Restoration Act. Because Plaintiffs have not alleged
sufficient facts to plausibly establish that the Government denied their passport application
because of any religious beliefs, the Court grants the Government’s motion to dismiss on
Plaintiffs’ first cause of action. The Court denies Plaintiffs’ cross motion for partial summary
judgment and injunction on their first cause of action.
B. Plaintiffs’ Second Cause of Action
Plaintiffs also allege that the Government violated the Religious Freedom Restoration
Act (“RFRA”) by “demanding that [they] identify [themselves] with a Social Security Number,”
which their religious beliefs prohibit. Am. Compl. ¶ 118.
RFRA states that the “[g]overnment shall not substantially burden a person’s exercise of
religion even if the burden results from a rule of general applicability,” unless the government
can demonstrate that it “is in furtherance of a compelling governmental interest [and] is the least
restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(a)-
(b)(1). Under RFRA a plaintiff must first establish that a government action substantially
burdens his exercise of religion. Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 281
F. Supp. 3d 88, 114 (D.D.C. 2017) (citing Henderson v. Stanton, 76 F. Supp. 2d 10, 14 (D.D.C.
1999)). After this initial hurdle is met, the burden then shifts to the government to show that the
challenged action uses the least restrictive means to further a compelling government interest.
Id. Importantly, rather than a categorical strict scrutiny analysis, “RFRA requires the
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Government to demonstrate that the compelling interest test is satisfied through application of
the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is
being substantially burdened.” Gonzalez v. O Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418, 430–31 (2006) (quoting 42 U.S.C. § 2000bb–1(b)). Courts must look “beyond
broadly formulated interests justifying the general applicability of government mandates and
scrutinize[] the asserted harm of granting specific exemption to particular religious claimants.”
Id. at 431.
“A substantial burden exists when government action puts ‘substantial pressure on an
adherent to modify his behavior and to violate his beliefs.’” Kaemmerling v. Lappin, 553 F.3d
669, 678 (D.C. Cir. 2008) (quoting Thomas v. Review Bd., 450 U.S. 707, 718 (1981)). Similarly,
a substantial burden exists where government action “require[s] [a] plaintiff ‘to choose between
following the tenets of [his] religion and receiving a governmental benefit.’” Singh v. McHugh,
185 F. Supp. 3d 201, 217 (D.D.C. 2016) (quoting Navajo Nation v. U.S. Forest Service, 535 F.3d
1058, 1070 (9th Cir. 2008)). “Religious exercise necessarily involves an action or practice” and,
therefore, a plaintiff must allege “that he is put to a choice” between complying with a
government requirement and violating his religious beliefs. Kaemmerling, 553 F.3d at 679; see
also Holt v. Hobbs, 574 U.S. 352, 361 (2015) (finding that correctional department grooming
policy required choice between violating religious beliefs or facing disciplinary action).
If a substantial burden is established, RFRA requires the Government to show that its
action “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive
means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb–1(b). The
government must demonstrate the least restrictive means of furthering a compelling
governmental interest with respect to the particular plaintiff objecting. See Burwell v. Hobby
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Lobby Stores, Inc., 573 U.S. 682, 728, (2014) (“HHS has not shown that it lacks other means of
achieving its desired goal without imposing a substantial burden on the exercise of religion by
the objecting parties in these cases”) (emphasis added). The standard is “exceptionally
demanding.” Id.Plaintiffs assert that requiring them to identify with a social security number on their
passport renewal applications substantially burdens an exercise of their religious beliefs. Am.
Compl. ¶ 14. Specifically, Plaintiffs allege that identifying with a social security number “is
prohibited in the Revealed law” to which they adhere. Id. ¶ 118. The Government argues that
Plaintiffs have failed to establish a substantial burden on their religious exercise under RFRA
because the social security number requirement “does not pressure Plaintiffs to change their
behavior and violate their religion,” and, instead, Plaintiffs’ “claim seeks only to require the
government itself to conduct its affairs in conformance with [their] religion.” Gov’t Mot. at 11.
The Government argument primarily relies on two cases. See id. at 9–10. First, the
Government points to Bowen v. Roy, a Supreme Court case that predates the passage of RFRA.
In Bowen, the plaintiff asserted that the government’s use of a social security number for his
two-year-old daughter violated his religious beliefs and would harm her spirit. 476 U.S. 693,
699 (1986). The Court determined that “[t]he Free Exercise Clause affords an individual
protection from certain forms of governmental compulsion; it does not afford an individual a
right to dictate the conduct of the Government’s internal procedures.” Id. at 700. In other
words, the government’s use of the social security number did not affect the plaintiff’s behavior
or ability to exercise his religious beliefs. Id. at 699–700 (“Just as the Government may not
insist that appellees engage in any set of religious observance, so appellees may not demand that
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the Government join in their chosen religious practices by refraining from using a number to
identify their daughter.”).
The plaintiff in Bowen also challenged the requirement that he provide a social security
number for his daughter to receive welfare benefits. Id. at 701. On this question three justices––
Chief Justice Burger and Justices Powell and Rehnquist–––applied a lower standard than strict
scrutiny and concluded that requiring the plaintiff to provide a social security number
“promote[d] a legitimate and important public interest” in preventing fraud. Id. at 709. This
approach was “expressly rejected by five Justices.” Leahy v. District of Columbia, 833 F.2d
1046, 1049 (D.C. Cir. 1987). In Leahy, where the plaintiff challenged the requirement that he
provide a social security number to obtain a driver’s license, this Circuit clarified that “the
compelling state interest test . . . continues to define the Supreme Court’s free exercise clause
jurisprudence.” 833 F.2d at 1049. RFRA later statutorily adopted the strict scrutiny standard.
See 42 U.S.C. § 2000bb-1 (requiring government actions that “substantially burden a person’s
exercise of religion” to be “in furtherance of a compelling governmental interest” and use “the
least restrictive means”) (emphasis added).
The Government then points to Kaemmerling v. Lappin, a D.C. Circuit case where the
court rejected the plaintiff’s RFRA claim that the extraction and storage of his DNA information
by the Federal Bureau of Prisons substantially burdened his religious exercise. 553 F.3d at 679.
The D.C. Circuit noted that “[t]he extraction and storage of DNA information are entirely
activities of the FBI, in which Kaemmerling plays no role and which occur after the BOP has
taken his fluid or tissue sample (to which he does not object).” Id. Thus, the government’s
actions could not “be said to hamper his religious exercise because they [did] not ‘pressure [him]
to modify his behavior and to violate his beliefs.’” Id. (quoting Thomas, 450 U.S. at 718). Like
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the government’s use of social security numbers in Bowen, 476 U.S. at 700, the extraction of
DNA information, while objectionable to the plaintiff, involved solely internal government
actions that did not affect the plaintiff’s ability to exercise his religious beliefs or require action
contrary to those beliefs, 553 F.3d 679.
These cases support Plaintiffs’ position more than the Government’s. In Bowen, the
Court did not rule on the plaintiff’s claim that providing his daughter’s social security number
violated his religious beliefs. Plaintiffs here do not challenge the Government’s internal use of
social security numbers; they challenge the requirement that they provide a social security
number on their passport applications. See Am. Compl. ¶ 118. As such, Bowen’s majority
opinion does not control. The other case the Government points to, Kaemmerling, similarly does
not support the Government’s position. There the plaintiff did not object to the collection of “his
fluid or tissue samples.” 553 F.3d at 679. Instead, he objected to the government’s use of those
samples subsequent to the collection. Id. Because everything after collection involved only
government action, the plaintiff’s behavior required no modification and thus was not
substantially burdened. Id. Here, in contrast, Plaintiffs do object to identifying themselves with
and providing social security numbers. They must choose between adhering to their religious
beliefs—the sincerity of which is not challenged by the Government nor questioned by the
Court—and receiving a government benefit. Accepting as true the factual allegation made in the
amended complaint and construing them in Plaintiffs’ favor, the Court finds that Plaintiffs have
alleged sufficient facts to state a claim under RFRA. See Singh, 185 F. Supp. 3d at 217.
Accordingly, the Court will deny the Government’s motion to dismiss on this claim.
The Government argues in the alternative that it is entitled to summary judgment on
Plaintiffs’ RFRA claim based on the submitted declarations of government officials. Gov’t Mot.
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at 11–15. The Court finds that these declarations do not meet the “exceptionally demanding”
standard required by RFRA. While the Court understands that the declarations assert a
compelling government interest in requiring social security numbers on passport applications,
see id. (describing the anti-fraud purposes of the social security number requirement), the
submitted evidence does not engage in the “more focused” inquiry required by RFRA. Burwell,
573 U.S. at 726. RFRA requires a strict scrutiny analysis as applied to the person whose exercise
of religion is being burdened. Id. The submitted declarations fail to explain why the interest is
so compelling given that social security numbers were not required until relatively recently. Nor
do they show that the government lacks other means of achieving its desired goals without
imposing a substantial burden on the exercise of religion by these Plaintiffs. Id. at 728. In fact,
the declaration describing the government interests in requiring social security numbers does not
mention Plaintiffs at all. See Fultz Decl., ECF No. 24-3. Perhaps this is because the record
suggests that Plaintiffs’ requests for religious accommodations were not seriously considered on
their merits when submitted. Accordingly, the Government is not entitled to summary judgment
on Plaintiffs’ RFRA claim.
C. Plaintiffs’ Third Cause of Action
Third, Plaintiffs assert that the Government violated Executive Order 13,798, which, in
part, directs executive agencies, “to the greatest extent practicable and to the extent permitted by
law, [to] respect and protect the freedom of persons and organizations to engage in religious and
political speech.” Exec. Order No. 13,798, 82 Fed. Reg. 21,675 (May 4, 2017). Executive Order
13,798 does not create a private right of action. Id. (“This order is not intended to, and does not,
create any right or benefit, substantive or procedural, enforceable at law or in equity by any party
against the United States, its departments, agencies, or entities, its officers, employees, or agents,
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or any other person.”). Accordingly, the Court grants the Government’s motion to dismiss with
respect to Plaintiffs’ third cause of action.
D. Plaintiffs’ Fourth Cause of Action
Plaintiffs also allege that they were denied due process guaranteed by the Fifth
Amendment when the Government “deni[ed] access to the appeal process pursuant to 22
[C.F.R.] § 51.70(b)(2)” after Carmichael’s renewed passport was revoked and Lewis and
Pakosz’s passport renewal applications were denied. Am. Compl. ¶ 124.
“For a procedural due process claim to survive a 12(b)(6) motion, a plaintiff must, at
minimum, ‘identify the process that is due.’” Gonzalez Boisson v. Pompeo, Civil No. 19- 2105,
2020 WL 2043889, at *7 (D.D.C. April 28, 2020) (quoting Doe v. District of Columbia, 93 F.3d
861, 870 (D.C. Cir. 1996)). “[D]ue process is flexible and calls for such procedural protections
as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). However,
“[t]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful
time and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting
Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). To determine whether due process was
granted, courts must consider three factors: (1) “the private interest that will be affected by the
official action”; (2) “the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural safeguards”; and (3)
“the Government’s interest, including the function involved and the fiscal and administrative
burdens that [an] additional or substitute procedural requirement would entail.” Id. at 335.
In Haig v. Agee, the Supreme Court concluded that a passport holder received adequate
due process when he received notice as to why his passport was being revoked and was given the
opportunity to request a post-revocation hearing. See 453 U.S. 280, 310 (1981) (“[t]he
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Constitution’s due process guarantees call for no more than . . . a statement of reasons and an
opportunity for a prompt post[-]revocation hearing.”); see also Gonzalez, 2020 WL 2043889 at
*7–8 (finding that Gonzalez received adequate due process when she was informed that her
passport had been issued erroneously, that it had been revoked under 22 C.F.R. § 51.62(a)(2),
and that she could request a hearing). Haig also distinguished the freedom of interstate travel
from “the ‘right’ of international travel [which] has been considered to be no more than an aspect
of the ‘liberty’ . . . . [that] can be regulated within the bounds of due process.” Haig, 453 U.S. at306–07 (quoting Califano v. Aznavorian, 439 U.S. 170, 176 (1978)); see also Gonzalez, 2020
WL 2043889 at *8 (explaining that, under the Mathews factors, while Gonzalez had a significant
interest in international travel, the government had a strong interest in preventing fraud in
passport applications).
Plaintiffs assert that they were improperly denied an appeal process under 22 C.F.R.
§ 51.70(b)(2). 1 Am. Compl. ¶ 124. Plaintiffs argue that denying them an appeal process violates
their right to due process under the Fifth Amendment. Id. The Government asserts that the
process outlined by its regulations meet the requirements of due process because they are
1
The Government’s regulations do not grant appeal hearings to individuals whose
passports are revoked or denied for “failure to provide a social security number.” 22 C.F.R.
§ 51.70(b)(2). While Plaintiffs dispute the characterization that they failed to provide their social
security numbers and assert that they, instead, provided “the social security number information
that applies to” them, Am. Compl. ¶ 124, neither Carmichael, Lewis, nor Pakosz provided his
social security number in his passport renewal application. See id. ¶¶ 19–21 (stating that all
three plaintiffs requested a religious accommodation rather than provided their social security
numbers). Accordingly, the Government properly applied 22 C.F.R. § 51.70(b)(2) to Lewis and
Pakosz. The Government, however, did not apply 22 C.F.R. § 51.70(b)(2) to Carmichael. See
id. ¶ 33; see also Pls.’ Mem. ¶ 57(oo). Carmichael’s passport was revoked pursuant to 22 C.F.R.
§ 51.62(a)(2) because it was issued erroneously, and he was thus given the opportunity to
request a hearing under 22 C.F.R. § 51.70(a). Am. Comp. ¶ 33; see also Pls.’ Mem. ¶ 57(oo).
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consistent with Haig, that all three Plaintiffs received notice of the revocation and denials, and
that Carmichael received the opportunity for a post-revocation hearing. Gov’t Mot. at 18–20.
The Government also notes that while Lewis and Pakosz may have been denied the opportunity
for a hearing, “the Government unquestionably provided [them] the opportunity to submit [their
social security number] or submit a declaration that they had never been issued one.” Id. at 19–
20.
Carmichael received a letter from the Government notifying him that his passport had
been issued erroneously, that it had been revoked pursuant to 22 C.F.R. § 51.62(a)(2), and that he
had the ability to request a post-revocation hearing. Am. Compl. ¶ 33; see also Gov’t Mot. at 20.
This notice is identical to the procedures found to have met the demands of due process in Haig.
Accordingly, Carmichael has failed to state a claim that he was denied due process, and the
Court grants the Government’s motion to dismiss on Carmichael’s due process claim.
While the post-revocation procedures afforded to Carmichael are identical to those found
to be sufficient in Haig, the same cannot be said for Lewis and Pakosz. Unlike in Haig, Lewis
and Pakosz assert that they were not given the opportunity for a hearing. Am. Compl. ¶¶ 124–
25. The Government suggests this presents no due process problem because Lewis and Pakosz
were “unquestionably provided . . . the opportunity to submit the requested information or
submit a declaration that they had never been issued [a social security number].” Gov’t Mot. at
19–20. But the Court understands Lewis and Pakosz to claim that due process requires a hearing
regarding their request for a religious accommodation. The Government does not engage with
this allegation. While Government regulations provide the authority to deny passport
applications that do not have a social security number, 22 U.S.C. § 2714a(f); see also 22 C.F.R.
§ 51.60(f), Lewis and Pakosz have pointed to a separate and specific procedural defect that they
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say violates their right to due process. The Government relies on its regulations to argue that a
hearing is not required in these circumstances, but the lack of a social security number on their
applications is inextricably intertwined with their request for a religious accommodation. Unlike
Carmichael, Lewis and Pakosz had no opportunity for a hearing to explain their request. See
Bauer v. Acheson, 106 F. Supp. 445, 452 (D.D.C. 1952) (finding that “refusal to renew [a]
passport without an opportunity to be heard, was without authority of law”). Because the
amended complaint has identified the process due and alleged the denial of an opportunity to be
heard, the Court finds that Plaintiffs have properly stated a due process claim with respect to
Lewis and Pakosz. Mathews, 424 U.S. at 333 (“The fundamental requirement of due process is
the opportunity to be heard.”); Gonzalez, 2020 WL 2043889, at *7.
The Court will grant Plaintiffs leave to amend their complaint with respect to their fourth
cause of action related to Carmichael’s passport revocation, noting that, to survive a subsequent
motion to dismiss, they must allege sufficient facts that demonstrate that the procedure
Carmichael received was constitutionally defective.
E. Plaintiffs’ Fifth Cause of Action
Next, Plaintiffs challenge 22 C.F.R. §§ 51.60, 51.70 as overbroad in violation of the First
and Fifth Amendments to the U.S. Constitution. Am. Compl. ¶¶ 126–28. A challenge that a law
is overbroad is a “type of facial challenge in the First Amendment context under which a law
may be overturned as impermissibly overbroad because a substantial number of its applications
are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Wash. State
Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008) (citing New York v.
Ferber, 458 U.S. 747, 769–71 (1982)) (internal quotations omitted). A similar, though distinct,
doctrine exists in the due process context where a law may be void for vagueness if it does not
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define “with sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”
Beckles v. United States, 137 S. Ct. 886, 892 (2017) (citations omitted); see also FCC v. Fox
Television Stations, Inc., 567 U.S. 239, 253 (2012) (“[The Due Process Clause of the Fifth
Amendment] requires the invalidation of laws that are impermissibly vague.”). It is not clear
whether Plaintiffs sought to invoke either of these doctrines that allow for facial challenges. See
Am. Compl. ¶¶ 126–28 (asserting that regulations are overbroad but resulted “in the unlawful
denial of my passport renewal application[]”) (emphasis added). The first challenged regulation
gives the Government the authority to deny passports to those who fail to provide their social
security number in their passport applications. 22 C.F.R. § 51.60(f). The second states that
where passport applications were denied or were revoked for a non-exhaustive list of reasons,
including failing to provide a social security number, the applicant does not receive an
opportunity for a hearing. 22 C.F.R. § 51.70(b)(2).
Plaintiffs allege that, by applying 22 C.F.R. §§ 51.60, 51.70, the Government is
“violating the law of due process protected by the Fifth Amendment,” Am. Compl. ¶ 127, and
that the Government’s actions under 22 C.F.R. §§ 51.60, 51.70 fall outside “the boundaries of
the United States Constitution,” id. ¶ 128. Thus, Plaintiffs claim that the Government’s actions
under 22 C.F.R. §§ 51.60, 51.70 resulted in the unlawful denial and revocation of their passports
and injured their “property and liberty rights in travel.” Id. These allegations do not support a
facial challenge to the regulations as overly broad or impermissibly vague. Plaintiffs do not
explain how the challenged regulations are unconstitutional in a “substantial number of [their]
applications” in violation of the First Amendment. Wash. State Grange, 552 U.S. at 449 n.6.
Nor do they explain how the regulations sweep too broadly or too vaguely in the context of due
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process. Because Plaintiffs do not expand beyond their conclusory legal allegations, the Court
grants the Government’s motion to dismiss with respect to Plaintiffs’ fifth cause of action. To
the extent that Plaintiffs allege that 22 C.F.R. §§ 51.60 and 51.70 resulted in a violation of their
rights to due process as applied, that claim is addressed in the Court’s analysis of Plaintiffs’
fourth cause of action.
F. Plaintiffs’ Seventh Cause of Action
Plaintiffs also allege that the Government violated the Privacy Act by failing to state the
circumstances under which providing a social security number on a passport application is
mandatory and the circumstances under which providing that information is voluntary. Id. ¶ 133.
Plaintiffs’ Privacy Act claim pertains to the requirements under 5 U.S.C. § 552a(e)(3), which
states in relevant part that agencies must “inform each individual whom it asks to supply
information . . . whether disclosure of such information is mandatory or voluntary.” 5 U.S.C.
§ 552a(e)(3)(A). Plaintiffs allege that the Privacy Act Statement that they received failed “to
correctly state in what conditions make [disclosure of a social security number] voluntary and
what make[s] [disclosure] mandatory.” See Am. Compl. ¶ 133. The Court understands
Plaintiffs’ claim to be that while the Privacy Act Statement indicates that providing a social
security number is voluntary, it is in fact mandatory and, therefore, the Government has not
complied with the statutory requirements.
The Government does not squarely address Plaintiffs’ argument that because disclosure
of a social security number is apparently required, the Privacy Act Statement is deficient.
Instead, the Government argues that because the Privacy Act Statement contains all the elements
required by statute, Plaintiffs have not properly stated a claim. Gov’t Mot. at 21. But the
Privacy Act allows an individual to “bring a civil action against the agency” when it “fails to
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comply with any [] provision of” the Act. 5 U.S.C. § 552a(g)(1). Plaintiffs have alleged that the
Privacy Act Statement does not comply with the law because disclosure of a social security
number is mandatory to obtain a passport and yet the Privacy Act Statement says disclosure is
voluntary. Am. Compl. ¶ 133. The Government’s briefing also suggests that providing a social
security number is required to obtain a passport. See Gov’t Mot. at 21. Given the facts alleged
and the Government’s failure to address Plaintiffs’ contention, the Court finds that Plaintiffs
have sufficiently stated a claim under the Privacy Act and denies the Government’s motion to
dismiss Plaintiffs’ seventh cause of action. 2
G. Plaintiffs’ Eighth Cause of Action
Plaintiffs also claim that the Government violated the First, Fifth, and Ninth Amendments
by failing to fulfill their requests that the Government name the individual federal employees
involved in reviewing passport applications. Am. Compl. ¶¶ 135–37. However, Plaintiffs do not
cite any law that requires the Government to name individual federal employees and do not
explain why the Government’s alleged failure to do so constitutes a violation of Plaintiffs’
constitutional rights. See id. Accordingly, the Court grants the Government’s motion to dismiss
with respect to Plaintiffs’ eighth cause of action.
H. Plaintiffs’ Sixth & Ninth Causes of Action
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To the extent Plaintiffs claim that the Government failed to “apply the provision for[]
‘good cause’” in the Privacy Act, Am. Compl. ¶ 133, such a claim is dismissed. The “good
cause” provision of the Privacy Act “permit[s] [an] individual who disagrees with the refusal of
[an] agency to amend his record to request a review of such refusal” and have that review
completed and a final determination made within 30 days “unless, for good cause shown, the
head of the agency extends” that time period. 5 U.S.C. § 552a(d)(3) (emphasis added). Here,
Plaintiffs are neither attempting to access nor amend their records, so this provision is
inapplicable.
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Finally, Plaintiffs claim that the Government violated two federal criminal statutes. First,
in their sixth cause of action, they allege that the Government violated 42 U.S.C. § 408(a)(8). Id.
¶ 130. Section 408(a)(8) makes it a felony to “compel[] the disclosure of the social security
number of any person in violation of the laws of the United States.” 42 U.S.C. § 408(a)(8).
Second, in their ninth cause of action, Plaintiffs allege that Secretary Pompeo “and his agents”
violated 18 U.S.C. § 241 by “conspir[ing] to injure, oppress, threaten or intimidate [them] . . . in
the free exercise” of religion. Am. Compl. ¶ 139. Section 241 provides that “two or more
persons [who] conspire to injure, oppress, threaten, or intimidate any person . . . in the free
exercise or enjoyment of any right or privilege secured to him by the Constitution . . . shall be
fined . . . or imprisoned.” 18 U.S.C. § 241.
Criminal statutes “rarely” provide a private right of action. Chrysler Corp. v. Brown, 441
U.S. 281, 316 (1979). “A ‘bare criminal statute’ with no other statutory basis for inferring that a
civil cause of action exists, is insufficient to imply Congress intended to create a concomitant
civil remedy.” Leonard v. George Washington Univ. Hosp., 273 F. Supp. 3d 247, 256 (D.D.C.
2017) (quoting Lee v. U.S. Agency for Int’l Dev., 859 F.3d 74, 77–78 (D.C. Cir. 2017)). In
Alexander v. Wash. Gas Light Co., this Court held that 42 U.S.C. § 408(a)(8) “does not provide a
basis for a private civil cause of action.” 481 F. Supp. 2d 16, 33 (D.D.C. 2006), aff’d, No. 06-
7040, 2006 WL 3798858 (D.C. Cir. Aug. 24, 2006) (per curiam). Similarly, in Crosby v. Catret,
the D.C. Circuit affirmed this Court’s holding that § 241 does not create a private right of action.
See 308 F. App’x 453, *1 (D.C. Cir. 2009); see also Leonard, 273 F. Supp. 3d at 256 (“It is
established that Sections 241 and 242 of Title 18 of the U.S. Code provide ‘no private right of
action[.]’”). Accordingly, the Court grants the Government’s motion to dismiss on Plaintiffs’
sixth and ninth causes of action.
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V. OTHER PENDING MOTIONS
Several other motions remain pending before the Court; they are resolved as follows.
Plaintiffs opposed the Government’s motion requesting an extension of time to file an
answer. See Mot. Extension Time, ECF No. 9; Pls.’ Opp’n Mot. Extension Time, ECF No. 13.
Alongside their opposition, Plaintiffs submitted a motion for order. Mot. for Order, ECF No. 14.
Because the Court granted the Government’s motion for an extension of time, see Order, ECF
No. 11, the Court denies Plaintiffs’ motion for order as moot.
Plaintiffs moved to request that the docket reflect the Court’s November 20, 2019 order
granting Plaintiff Carmichael’s motion to amend his complaint to add the U.S. Department of
State as a defendant. Mot. to Amend, ECF No. 21. Because the docket already reflects this
information, this motion is denied.
Plaintiffs moved for an electronic filing user name and password. Mot. CM/ECF
Password, ECF No. 23. The Court denies this motion without prejudice. Under Local Rule
5.4(b)(2), Plaintiffs must describe their access to the internet, confirm their capacity to file
documents and receive filing electronically on a regular basis, and certify that they have
completed the Clerk’s Office on-line tutorial. LCvR 5.4(b)(2). Plaintiffs’ motion only certifies
that Carmichael has completed the on-line tutorial. See Mot. CM/ECF Password. Plaintiffs can
refile this motion with the required information.
Plaintiffs moved to add Carmichael’s original complaint to the record and to add Lewis
and Pakosz’s motions for joinder to the record. Mot. Misc. Relief, ECF No. 33; Mot. Misc.
Relief, ECF No. 36. Because these documents already appear on the docket, the Court denies
these motions.
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Plaintiffs moved for a hearing on the pending motion. Mot. for Hearing, ECF No. 37.
Whether to grant a motion for an oral hearing is within the discretion of the Court. See LCvR
7(f). Because the Court has decided the pending motions based on the parties’ written
submissions, the Court denies this motion.
Finally, Plaintiffs have moved to compel answers to their discovery requests propounded
on the Government. Mot. Compel, ECF No. 40. This motion is denied as premature because the
Court has not yet entered a scheduling order to govern discovery.
VI. CONCLUSION
For the foregoing reasons, the Government’s motion to dismiss (ECF No. 24) is
GRANTED with respect to Plaintiffs’ first, third, fourth (with respect to Carmichael), fifth,
sixth, eighth, and ninth causes of action; it is DENIED with respect to Plaintiffs’ second, fourth
(with respect to Lewis and Pakosz), and seventh causes of action. The Government’s motion in
the alternative for summary judgment is DENIED. Plaintiffs’ motion for partial summary
judgment and injunction (ECF No. 28) is DENIED. Plaintiffs’ other pending motions (ECF
Nos. 14, 21, 23, 33, 36, 37, 40) are DENIED. Plaintiffs will be given leave to file an amended
complaint with respect to their fourth cause of action within thirty days. An order consistent
with this Memorandum Opinion is separately and contemporaneously issued.
Dated: August 28, 2020 RUDOLPH CONTRERAS
United States District Judge
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