444 F.3d 614 (D.C. Cir. 2006), 04-5395, Zivotofsky ex rel. Ari Z. v. Secretary of State

Docket Nº:04-5395.
Citation:444 F.3d 614
Party Name:Menachem Binyamin ZIVOTOFSKY, by his parents and guardians, ARI Z. and Naomi Siegman Zivotofsky, Appellant v. SECRETARY OF STATE, Appellee.
Case Date:February 17, 2006
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 614

444 F.3d 614 (D.C. Cir. 2006)

Menachem Binyamin ZIVOTOFSKY, by his parents and guardians, ARI Z. and Naomi Siegman Zivotofsky, Appellant

v.

SECRETARY OF STATE, Appellee.

No. 04-5395.

United States Court of Appeals, District of Columbia Circuit.

February 17, 2006

Argued Nov. 10, 2005.

Page 615

Appeal from the United States District Court for the District of Columbia (No. 03cv01921).

Nathan Lewin argued the cause for appellant. With him on the briefs was Alyza D. Lewin.

Steven Lieberman was on the brief for amici curiae American Association of Jewish Lawyers and Jurists, et al. in support of appellant.

Paul Kujawsky was on the brief for amici curiae Congressmembers Henry A. Waxman, et al.

Douglas N. Letter, Litigation Counsel, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S. Attorney, Gregory G. Katsas, Deputy Assistant Attorney General, and Lewis Yelin, Attorney.

Before: SENTELLE, RANDOLPH, and ROGERS, Circuit Judges.

OPINION

RANDOLPH, Circuit Judge.

Menachem Binyamin Zivotofsky was born in Jerusalem on October 17, 2002. As a child of U.S. citizens who have resided in the United States, he also is a U.S. citizen. 8U.S.C. § 1401(c). The ultimate issue in this appeal is whether § 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228, 116 Stat. 1350, 1365-66 (2002) ("Authorization Act"), entitles Menachem to have "Israel" listed on his U.S. passport as his place of birth. The district court did not reach the issue. It dismissed the complaint for lack of standing and because it believed the case presented a political question it could not resolve.

I.

The complaint alleges that Menachem's mother visited the Embassy of the United States in Tel Aviv, Israel ("Embassy"), on December 24, 2002, to request that her son be registered as a U.S. citizen and issued a passport and Consular Report of Birth Abroad with his place of birth designated as "Jerusalem, Israel." A Consular Birth Report is "a formal document certifying the acquisition of U.S. citizenship at birth of a person born abroad." 7 U.S. Department of State, Foreign Affairs Manual ("FAM") § 1441(a). Embassy officials denied Mrs. Zivotofsky's request. According to her declaration, they told her that although" the issue ha[d] been debated in Congress it ha[d] not become law." The Embassy issued a passport listing Menachem's

Page 616

place of birth as "Jerusalem" and a Consular Birth Report designating his birthplace as "Jerusalem." Neither document lists a country of birth.

A few months before Mrs. Zivotofsky visited the Embassy, the President signed the Authorization Act into law. Section 214 is titled "United States policy with respect to Jerusalem as the capital of Israel." Subsection (a) "urges the President" to relocate the U.S. Embassy in Israel to Jerusalem. Subsections (b) and (c) concern the use of appropriated funds. Subsection (d), which is the focus of this appeal, provides:

For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen's legal guardian, record the place of birth as Israel.

Authorization Act § 214(d).1

When the President signed the Authorization Act into law, he made the following statement regarding § 214:

Section 214, concerning Jerusalem, impermissibly interferes with the President's constitutional authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch. Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibly interfere with the President's constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states. U.S. policy regarding Jerusalem has not changed.

Statement by President George W. Bush Upon Signing H.R. 1646, 2002 U.S.C.C.A.N. 931, 932 (Sept. 30, 2002). The status of Jerusalem is, as a matter of U.S. policy, "a matter to be resolved by negotiation between the Israelis and Palestinians" in light of their competing claims of sovereignty over the city. Br. for Appellee 7.

Section 214 of the Authorization Act conflicts with instructions in the State Department's Foreign Affairs Manual. As a "general rule," consular officers must "enter the country of the applicant's birth in the passport." 7FAM § 1383. 1(a). It is the State Department's "policy [to] show[] the birthplace as the country having present sovereignty." Id. § 1383.5-4 (Palestine); see also id. § 1383.5-5 (Israel-Occupied Areas). But when "the birthplace of the applicant is located in territory disputed by another country, the city or area of birth may be written in the passport." Id. § 1383.5-2 (Disputed Territory). The Manual generally gives U.S. citizens born abroad the option of listing the city of birth "when there are objections to the country listing shown on the [Department's] birthplace guide." Id. § 1383.6(a) (City of Birth Listing). For applicants wishing to exercise this option, the Manual requires consular officers to inform them of the "difficulties which they may encounter in traveling to, or obtaining visas for entry into, certain foreign countries." Id.

Page 617

§ 1383.6(b).2

The Manual has special rules regarding Israel and the occupied territories. For example, if a passport applicant was "born [before 1948] in the area formerly known as Palestine," the passport may "show Palestine as the birthplace in individual cases upon consideration of all the circumstances"; if the applicant was born in 1948 or thereafter, "the city or town of birth may be listed if the applicant objects to showing the country having present sovereignty." Id. § 1383.5-4. The same is true of "Israel-Occupied Areas," such as the Golan Heights, the West Bank, and the Gaza Strip. See id. § 1383.5-5. With regard to Jerusalem, the Manual differentiates between applicants born before and after the existence of an official Israeli state. See id. § 1383.5-6 (Jerusalem). For those like Menachem - a citizen born in Jerusalem after May 14, 1948 -the Manual requires the person's place of birth to be recorded as "JERUSALEM." See id. § 1383.1(b) (requiring compliance with the "birthplace transcription guide" when "entering the place of birth in the passport"); id. § 1383 Ex. 1383.1, Pt. II (Birthplace Transcription Guide for Use in Preparing Passports) (JERUSALEM) (citing id. §§ 1383.5-5, .5-6); see also id. (ISRAEL) (indicating that Israel" [d]oes not include Jerusalem") (citing id. § 1383.5-5).

II.

As to Menachem's standing to bring this action, the government argues that he cannot satisfy the injury-in-fact requirement derived from Article III of the Constitution. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). He is now only three years old. The claim that someday, when he is older, he might suffer psychological harm from the Secretary's passport decision is, the government argues, purely conjectural and in any event not an imminent injury, as the law requires.3 However that may be, we think he has suffered another sort of injury in fact and therefore has standing.

The Supreme Court has recognized that "Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute." Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973). Or stated differently, "Congress may create a statutory right or entitlement the alleged deprivation of which can confer standing to sue even where the plaintiff would have suffered no judicially cognizable injury in the absence of statute." Warth v. Seldin, 422 U.S. 490, 514, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); see Lujan, 504 U.S. at 578, 112 S.Ct. 2130.

A common example of such a statute is the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Anyone whose request for specific information has been denied has standing to bring an action; the requester's circumstances - why he wants the information, what he plans to do with it, what harm he suffered from the failure to disclose - are irrelevant to his standing. See, e.g., Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 449, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989). The

Page 618

requester is injured-in-fact for standing purposes because he does not get what the statute...

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71 practice notes
  • 511 F.Supp.2d 97 (D.D.C. 2007), C. A. 03-1921, Zivotofsky ex rel. Zivotofsky v. Secretary of State
    • United States
    • Federal Cases United States District Courts District of Columbia
    • September 19, 2007
    ...the case. On February 17, 2006, our Court of Appeals reversed and remanded for further proceedings. Zivotofsky v. Sec'y of State, 444 F.3d 614 (D.C.Cir.2006). The Court of Appeals held that Plaintiff had standing to sue. Id. at 617. It also held that, for purposes of analyzing whether the c......
  • Maloney v. Murphy, 122920 FEDDC, 18-5305
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the District of Columbia Circuit
    • December 29, 2020
    ...upon which a claim of informational standing may be predicated"); Zivotofsky ex. rel. Ari Z. v. Secretary of State, 444 F.3d 614, 617 (D.C. Cir. 2006) (Under FOIA, "[t]he requestor is injured-in-fact for standing purposes because he did not get what the st......
  • Congressional funding speaks louder than presidential words: cold, hard cash versus the recognition power.
    • United States
    • Suffolk University Law Review Vol. 49 Nbr. 1, January 2016
    • January 1, 2016
    ...rel. Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012) (recounting history of case); see also Zivotofsky ex rel. Zivotofsky v. Sec'y of State, 444 F.3d 614, 619 (D.C. Cir. 2006) (holding Zivotofsky has standing because relevant issue not whether Zivotofsky can use passport). (99.) See Zivotofsk......
  • 457 F.Supp.2d 6 (D.D.C. 2006), C. A. 04-1648, Gilda Industries, Inc. v. United States Customs & Border Protection Bureau
    • United States
    • Federal Cases United States District Courts District of Columbia
    • October 19, 2006
    ...And because its request for information under FOIA was denied, Gilda has standing to sue. See Zivotofsky v. Sec'y of State, 444 F.3d 614, 617 (D.C.Cir.2006) ("Anyone whose request for specific information [under FOIA] has been denied has standing to bring an A. FOIA Exemption 4 FOIA Ex......
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67 cases
  • 511 F.Supp.2d 97 (D.D.C. 2007), C. A. 03-1921, Zivotofsky ex rel. Zivotofsky v. Secretary of State
    • United States
    • Federal Cases United States District Courts District of Columbia
    • September 19, 2007
    ...the case. On February 17, 2006, our Court of Appeals reversed and remanded for further proceedings. Zivotofsky v. Sec'y of State, 444 F.3d 614 (D.C.Cir.2006). The Court of Appeals held that Plaintiff had standing to sue. Id. at 617. It also held that, for purposes of analyzing whether the c......
  • Maloney v. Murphy, 122920 FEDDC, 18-5305
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the District of Columbia Circuit
    • December 29, 2020
    ...upon which a claim of informational standing may be predicated"); Zivotofsky ex. rel. Ari Z. v. Secretary of State, 444 F.3d 614, 617 (D.C. Cir. 2006) (Under FOIA, "[t]he requestor is injured-in-fact for standing purposes because he did not get what the st......
  • 457 F.Supp.2d 6 (D.D.C. 2006), C. A. 04-1648, Gilda Industries, Inc. v. United States Customs & Border Protection Bureau
    • United States
    • Federal Cases United States District Courts District of Columbia
    • October 19, 2006
    ...And because its request for information under FOIA was denied, Gilda has standing to sue. See Zivotofsky v. Sec'y of State, 444 F.3d 614, 617 (D.C.Cir.2006) ("Anyone whose request for specific information [under FOIA] has been denied has standing to bring an A. FOIA Exemption 4 FOIA Ex......
  • State National Bank of Big Spring v. Lew, 080113 DCDC, 12-1032 ESH
    • United States
    • Federal Cases United States District Courts District of Columbia
    • August 1, 2013
    ...cases, see, e.g., Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 449 (1989), or in cases such as Zivotofsky v. Sec’y of State, 444 F.3d 614, 617-18 (D.C. Cir. 2006). (See States’ Opp. at 19-23.) But there must be a concrete, present injury, which the States have not shown The cases ......
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1 firm's commentaries
  • Statutory Class Actions: Developments and Strategies
    • United States
    • JD Supra United States
    • March 3, 2015
    ...unless she explains how such violations affected her in a personal and particularized way. Zivotofsky ex rel. Ari Z. v. Sec’y of State, 444 F.3d 614, 618 (D.C. Cir. 2006); see also Lujan, 504 U.S. at 560; Bensman v. U.S. Forest Service, 408 F.3d 945, 956-61 (7th Cir. 2005). Accord Conservat......
3 books & journal articles
  • Congressional funding speaks louder than presidential words: cold, hard cash versus the recognition power.
    • United States
    • Suffolk University Law Review Vol. 49 Nbr. 1, January 2016
    • January 1, 2016
    ...rel. Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012) (recounting history of case); see also Zivotofsky ex rel. Zivotofsky v. Sec'y of State, 444 F.3d 614, 619 (D.C. Cir. 2006) (holding Zivotofsky has standing because relevant issue not whether Zivotofsky can use passport). (99.) See Zivotofsk......
  • The return of classical political question doctrine in Zivotofsky ex rel. Zivotofsky V. Clinton.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 37 Nbr. 1, January - January 2014
    • January 1, 2014
    ...2004 WL 5835212, at *2 (D.D.C. Sept. 7, 2004). (15.) Id. at *3. (16.) Id. at *4. (17.) Zivotofsky ex. tel. Ari Z. v. Sec'y of State, 444 F.3d 614, 618-19 (D.C. Cir. 2006). (18.) Id. at 619-20. (19.) Zivotofsky ex tel. Zivotofsky v. Sec'y of State, 511 F. Supp. 2d 97, 99 (D.D.C. 2007). (20.)......
  • THE RECOMMENDATIONS CLAUSE AND THE PRESIDENT'S ROLE IN LEGISLATION.
    • United States
    • University of Pennsylvania Law Review Vol. 168 Nbr. 3, February 2020
    • February 1, 2020
    ...that members of Congress lacked standing to challenge the President's withdrawal from a treaty without the approval of Congress). (249) 444 F.3d 614, 617-19 (250) Presidential Statement on Signing the Foreign Relations Authorization Act, Fiscal Year 2003, 2002 Pub. Papers 1697, 1698 (Sept 3......