Cooke v. Bureau of Consular Affairs

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TAJMERE COOKE, )
)
Petitioner, )
)
v. ) Civil Action No. 1:23-cv-03035 (UNA)
)
BUREAU OF CONSULAR )
AFFAIRS, et al., )
)
Respondents. )
MEMORANDUM OPINION
Petitioner initiated this case on October 10, 2023, by filing, inter alia, a civil pro se petition,
ECF No. 1. He failed, however, to provide any residential address, nor did he request leave to use
any alternative address, in contravention of D.C. LCvR 5.1(c)(1). See Order, ECF No. 4.
Consequently petitioner was directed, on November 9, 2023, to provide within thirty days either
a notice of residence address or a motion for leave to use an alternative address. Id. at 1.
On November 13 and 21, 2023, petitioner responded to the Court’s order by filing
substantially similar notices, see First Notice, ECF No. 5 (“Not. I”); Second Notice, ECF No. 6
(“Not. II”), in which he attests that he is currently homeless and living in his car, and therefore he
cannot, and moreover refuses, to provide the Court with any address of record, see Not. I at 1; Not.
II at 1. While petitioner’s circumstances are understandably challenging, without a residence
address, or alternatively, a P.O. Box or general mailing address, this Court and the respondents
have no way of formally and consistently noticing and communicating with petitioner, or vice
versa. Although petitioner filed a consent to receive electronic notice, ECF No. 3, he has not filed
any motion for CM/ECF access, see D.C. LCvR 5.4(b)(2). Even had such a motion been filed,
petitioner does not appear to qualify because, among other problems, petitioner lives in his vehicle
and unlikely has consistent and reliable access to the internet, or the ability to file documents and
receive filings electronically on a regular basis. See Not. I at 1; Not. II at 1. Petitioner has thus
failed to comply with this Court’s order and this case cannot proceed.
Even if petitioner had complied, this case would still fail to survive. Petitioner alleges that,
on October 12, 2022, he “was denied a passport . . . by the Bureau of Consular Affairs at the
Philadelphia passport agency because [he is] not a U.S. citizen[.]” Pet. at 1. Although petitioner
agrees, and in fact, declares, that he is not a United State citizen, for “remedy and relief[,]” he
nonetheless asks this court to direct the United States and the Bureau of Consular Affairs to issue
him a “full-time A-1 diplomatic visa with the highest rank and U.S. diplomatic passport with the
highest rank.” See id. at 2–3. 1 This claim is barred for several reasons.
First, a petitioner may seek relief under 8 U.S.C. § 1503 to “appeal the denial of ‘a right or
privilege as a national of the United States’ by a government official, department or independent
agency ‘upon the ground that he is not a national of the United States.’” Hinojosa v. Horn, 896
F.3d 305, 311 (5th Cir. 2018) (quoting 8 U.S.C. §§ 1503(a), (b)), cert. denied, 139 S.Ct. 1319
(2019). “The statute provides two separate procedures for individuals to vindicate such claims,
depending on whether they are within the United States.” Id. Of course, as noted, petitioner
1
As ancillary relief, petitioner also asks, pursuant to 8 U.S.C. § 1481(a)(2), that the Court
formally remove his status as a United States citizen, provide him with “tribal nationality status[,]”
and assign him a “permanent fiduciary” from the government to answer all of his questions, as
needed. See Pet. at 2. Judicial notice is taken, see Covad Commc'ns Co. v. Bell Atl. Corp., 407
F.3d 1220, 1222 (D.C. Cir. 2005); Banks v. York, 515 F. Supp. 2d 89, 109 (D.D.C. 2007); Sheppard
v. District of Columbia, 791 F. Supp. 2d 1, 2 n.1 (D.D.C. 2011), of the dismissal without prejudice
of petitioner’s substantially similar request related to his citizenship status, see Cooke v. Blinken,
No. 23-cv-03135 (UNA) (D.D.C. filed Oct. 19, 2023), Petition, ECF No. 1, for failure to comply
with a court order, failure to state a claim, and lack of subject matter jurisdiction, see Memorandum
Opinion, ECF No. 9 (entered Dec. 22, 2023); Dismissal Order, ECF No. 10 (entered Dec. 22,
2023). The relief sought in the instant matter regarding petitioner’s citizenship is identical to that
previously sought and the determinations made in the memorandum opinion entered in Cooke, No.
23-cv-03135, are adopted and incorporated in full here. Petitioner’s claims for such relief are
dismissed for the same stated reasons, see id. at 1–4.
declines to provide any address of record, see Not. I at 1; Not. II at 2, and he believes that,
“[a]ccording to the Holy Bible[,]” the United States is not a nation, but rather, “a corporate entity
registered in the state of Delaware[,]” Pet. at 3, but, as gleaned from his submissions, he appears
to be located somewhere in the United States, see, e.g., id. at 1, 3; Not. I at 1; Not. II at 1.
“When the individuals are already within the United States, judicial review is immediately
available: They are authorized to ‘institute an action under [the Declaratory Judgment Act] against
the head of such department or independent agency for a judgment declaring him to be a national
of the United States.’” Hinojosa, 896 F.3d at 311 (quoting 8 U.S.C. § 1503(a)). “An action under
this subsection may be instituted only within five years after the final administrative denial of such
right or privilege and shall be filed in the district court of the United States for the district in which
such person resides or claims a residence and jurisdiction over such officials in such cases is
conferred upon those courts.” 8 U.S.C. § 1503(a) (emphasis added). Here, the claim leaves wholly
unclear whether the “Philadelphia passport agency” issued a formal and final administrative denial,
or if that entity even bears the authority to do so. Notably, without petitioner’s residence, the
information necessary for this Court to exercise jurisdiction over his claims is lacking. See 8
U.S.C. § 1503(a).
Assuming arguendo that petitioner is located out of the country, “the path to judicial review
is longer because such individuals must first gain admission into the country by the procedures set
forth in §§ 1503(b)-(c). These provisions first require an application to ‘a diplomatic or consular
officer of the United States’ for a certificate of identity, which allows petitioners to “travel[ ] to a
port of entry in the United States and apply[ ] for admission.’” Hinojosa, 896 F.3d at 311 (quoting
8 U.S.C. § 1503(b)). “If their applications are denied, petitioners are ‘entitled to an appeal to the
Secretary of State, who, if he approves the denial, must provide a written statement of reasons.’”
Id. at 311–312 (quoting 8 U.S.C. § 1503(b)). Conversely, “[i]f the certificate of identity is issued—
either by the diplomatic or consular officer or by the Secretary of State—the individual may apply
for admission to the United States at a port of entry, subject “to all the provisions . . . relating to
the conduct of proceedings involving aliens seeking admission to the United States.’” Id. at 312(quoting 8 U.S.C. § 1503(c)). “If admission is denied, petitioners are entitled to ‘[a] final
determination by the Attorney General’ that is ‘subject to review by any court of competent
jurisdiction in habeas corpus proceedings and not otherwise.’” Id. (quoting 8 U.S.C. § 1503(c)).
Finally, “if admission is granted, thereby permitting them to travel within the United States, they
can file a declaratory judgment action under § 1503(a).” Id. Here, to the extent that 8 U.S.C. §§
1503(b), (c) apply to petitioner’s circumstances, the record is wholly unclear indication that he has
fulfilled any of the above-noted steps, which are prerequisites to challenge the respondents’ denial
of a passport in the appropriate jurisdiction.
Second, petitioner asks that respondents be directed to take specific actions on his behalf,
see Pet. at 2, but this Court is without jurisdiction to do so. “It is one thing to seek to compel an
agency to respond to an administrative complaint within a reasonable time. It is entirely another
to seek to control what that response says.” SAI v. Homeland Security, 149 F. Supp. 3d 99, 109
(D.D.C. 2015). Put differently, “[u]nder Section 706(1) of the APA [Administrative Procedure
Act], a court may at times compel an agency ‘to take a discrete agency action that is it is required
to take,’ but may not direct ‘how it shall act.’ ” Id. (quoting Norton v. S. Utah Wilderness Alliance,
542 U.S. 55, 64 (2004) (emphases in original) (internal quotation marks omitted)). Indeed, the
record is unclear whether petitioner ever filed any agency complaint, let alone whether he awaits
an agency to take some required action. See 5 U.S.C. §§ 702, 704.
Finally, petitioner cites, in passing, to the Alien Tort Claims Act (“ATCA”), 28 U.S.C. §
1350, see Pet. at 2, but fails to identify an operative tort, which is fatal to his claim. See Stone v.
U.S. Embassy Toyko, No. 19-3273, 2020 WL 6746925, at *3 (D.D.C. Nov. 16, 2023) (“Plaintiff
fails to demonstrate how the alleged conduct, such as failing to issue a passport or respond to
letters, constitute legally cognizable torts.”). He also explicitly disclaims any demand for damages,
see Pet. at 2, further failing to establish a claim under the ATCA, see Burnett v. Al Baraka Inv. &
Dev. Corp., 274 F. Supp. 2d 86, 99–100 (D.D.C. 2003); Abur v. Repub. of Sudan, 437 F. Supp. 2d
166, 168–69 n.4 (D.D.C. 2006).
For all of these reasons this matter is dismissed without prejudice. An order consistent
with this memorandum opinion is issued separately.
Date: December 27, 2023
/s/_______________________
BERYL A. HOWELL
United States District Judge