Zivotofsky v. Secretary of State, Civil Action No. 03-1921 (GK).

• Decision Date: 19 September 2007
• Docket Number: Civil Action No. 03-1921 (GK).
• Citation: 511 F.Supp.2d 97
• Parties: Menachem Binyamin ZIVOTOFSKY, by his parents and guardians, Ari Z. and Naomi Siegman ZIVOTOFSKY, Plaintiffs, v. The SECRETARY OF STATE, Defendant.
• Court: U.S. District Court — District of Columbia

511 F.Supp.2d 97

Menachem Binyamin ZIVOTOFSKY, by his parents and guardians, Ari Z. and Naomi Siegman ZIVOTOFSKY, Plaintiffs, v. The SECRETARY OF STATE, Defendant.

Civil Action No. 03-1921 (GK).

United States District Court, District of Columbia.

September 19, 2007.

COPYRIGHT MATERIAL OMITTED

Nathan Lewin, Alyza Doba Lewin, Lewin & Lewin, LLP, Washington, DC, for Plaintiffs.

Jacqueline E. Coleman Snead, W. Scott Simpson, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

GLADYS KESSLER, District Judge.

This case involves the question of whether an American citizen, born in Jerusalem, has the right to have "Israel" listed as his place of birth on his United States passport. The Plaintiff is Menachem Binyamin Zivotofsky, a United States citizen born in Jerusalem on October 17, 2002. He brings this suit by his parents, Ari Z. and Naomi Siegman Zivotofsky, against the Secretary of State (the "Secretary"), alleging that the Secretary's failure to list his place of birth as "Israel" on his passport violates Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, Pub.L. No. 107-228, 116 Stat. 1350, 1365-66 (2002) (the "Act").

This matter is now before the Court on the Secretary's Renewed Motion to Dismiss for Lack of Subject Matter Jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) [Dkt. No. 44] or in the alternative for Summary Judgment pursuant to Fed. R.Civ.P. 56 [Dkt. No. 46] and Zivotofsky's Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56 [Dkt. No. 39]. Upon consideration of the Motions, Oppositions, Replies, and the entire record herein, and for the reasons set forth below, the Court concludes that this case poses a non-justiciable political question. Accordingly, the Secretary's Motion to Dismiss is granted and the parties' Motions for Summary Judgment are denied as moot.

I. BACKGROUND

A. Facts¹

Plaintiff was born at the Shaare Zedek Hospital in the City of Jerusalem on October 17, 2002. Because both of his parents are United States citizens, Plaintiff was also born an American citizen and was entitled to a United States passport. On December 24, 2002, Plaintiff's mother, Naomi Siegman Zivotofsky, applied on the Plaintiff's behalf for a United States passport and Consular Report of Birth Abroad from the United States Embassy in Tel Aviv, Israel. She requested in her application that the passport and Consular Report of Birth Abroad list the Plaintiff's birthplace as "Israel." However, she was told that "Israel" would not be listed as the place of birth in these documents pursuant to State Department regulations. Instead, the State Department issued Plaintiff a passport and Consular Report of Birth Abroad that listed "Jerusalem" as Plaintiff's place of birth and made no mention of "Israel."

The final political status of Jerusalem has been in dispute since 1948 as a result of the long-standing Arab-Israeli conflict. Since the Truman Administration, the executive branch has pursued a policy of encouraging the parties to that conflict to settle all outstanding issues, including the final status of Jerusalem, through peaceful negotiations between the parties with the support of the broader international community. Therefore, the executive branch of the United States government does not acknowledge the sovereignty of any state over Jerusalem.

State Department passport policy reflects the executive branch's policy with regard to the status of Jerusalem. The State Department's Foreign Affairs Manual requires that citizens born in Jerusalem after May 14, 1948 shall have their place of birth listed as "Jerusalem." Declaration of JoAnn Dolan, Sept. 29, 2006 ("Dolan Decl."), Ex. 2 (7 FAM § 1383.1(b) & Part II: Other Countries & Territories). The Manual makes clear that "Israel" should not be entered on the passports of United States citizens born in Jerusalem. Id.

On September 30, 2002, Congress enacted the Foreign Relations Authorization Act for Fiscal Year 2003. Pub.L. No. 107-228, 116 Stat. 1350 (2002). Section 214 is titled "United States policy with respect to Jerusalem as the capital of Israel." Id. at 1365. Subsection (a), which is not at issue here, "urges the President" to relocate the United States Embassy in Israel from Tel Aviv to Jerusalem. Id. Subsection (d) provides

RECORD OF PLACE OF BIRTH AS ISRAEL FOR PASSPORT PURPOSES. — 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.

Id. at 1366.

The President signed the Act into law on the same day, and made the following statement:

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).

Following the enactment of Section 214(d), a State Department cable to its overseas posts noted that the "media and public in many Middle Eastern and Islamic states continue to believe that the State Authorization Bill signals a change in U.S. policy towards Jerusalem." Dolan Decl., Ex. 3 (DOS 001791). The cable clarified that, despite the enactment of Section 214, United States policy regarding Jerusalem had not changed, that the status of Jerusalem "must be resolved through negotiations between the parties," and that the United States opposed actions by any party that would prejudice those negotiations. Id. (DOS 001792).

B. Procedural History

Plaintiff filed suit against the Secretary of State in September 2003, claiming that Section 214(d) required the Secretary to issue Plaintiff a passport and Consular Record of Birth Abroad with the designation of "Jerusalem, Israel" as the place of birth. Compl. ¶ 9. Plaintiff sought a declaratory judgment and permanent injunction ordering the Secretary to issue these documents with corrected place of birth designations and also requested attorney's fees and costs pursuant to 28 U.S.C. § 2412.

In December 2003, the Secretary filed a Motion to Dismiss [Dkt. No. 6] pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6) arguing, inter alia, that Plaintiff lacked standing and that the case presented a non-justiciable political question. In February 2004, Plaintiff filed his Opposition to the Motion to Dismiss in conjunction with a Motion for Summary Judgment. [Dkt. No. 14]. In a Memorandum Opinion and accompanying Order dated September 7, 2004, this Court held that Plaintiff lacked standing and that the case presented a non justiciable political question, and therefore dismissed the case for lack of subject matter jurisdiction. [Dkts. No. 21 & 22].

Plaintiff appealed the Order dismissing 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 case presented a political question, "[t]he case ... no longer involves the claim the district court considered." Id. at 619. The Complaint initially sought an injunction requiring the Secretary to issue Plaintiff a passport and Consular Report of Birth Abroad with "Jerusalem, Israel" listed as the place of birth. Id. at 616, n. 1. On appeal, however, the parties agreed that the proper question was whether Section 214(d) entitles Plaintiff to a passport and Consular Report of Birth Abroad that records "Israel" as his place of birth. Id. at 619.

The Court of Appeals noted that "[w]hether this, too, presents a political question depends on the meaning of § 214(d) — is it mandatory or, as the government argues, merely advisory?" Id. The Court of Appeals also noted that the question may turn on the foreign policy impact of "listing `Israel' on the passports of citizens born in Jerusalem." Id. The case was remanded to this Court "so that both sides may develop a more complete record." Id. at 620.

Following remand, this Court issued a Scheduling Order providing for three months of discovery to allow the parties to develop a more complete record. [Dkt. No. 30]. After completion of discovery, the parties filed the pending dispositive motions.

II. STANDARD OF REVIEW

To prevail on a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), it is the plaintiffs burden to establish that the court has subject matter jurisdiction to hear the case. In re Swine Flu Immunization Prods. Liab. Litig., 880 F.2d 1439, 1442-43 (D.C.Cir.1989); Jones v. Exec. Office of the President, 167 F.Supp.2d 10, 13 (D.D.C. 2001). While the Court must accept as true all factual allegations contained in the complaint, Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), "plaintiff's factual allegations in the complaint ... will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim," because the plaintiff bears the burden of proof. Grand Lodge of the Fraternal Order of Police v Ashcroft, 185 F.Supp.2d 9, 13-14 (D.D.C. 2001) (internal quotation marks omitted). In making its determination regarding the existence of subject matter jurisdiction, the court may consider matters outside the pleadings, Lipsman v. Sec'y...