Zivotofsky v. Secretary of State

Citation571 F.3d 1227
Decision Date10 July 2009
Docket NumberNo. 07-5347.,07-5347.
PartiesAri Z. ZIVOTOFSKY, M.B.Z. by his Parents And Guardians and Naomi Siegman Zivotofsky, M.B.Z. by his Parents and Guardians, Appellants. v. SECRETARY OF STATE, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

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

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

Lewis Yelin, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeffrey A. Taylor, U.S. Attorney, and Douglas N. Letter, Appellate Litigation Counsel. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before GRIFFITH, Circuit Judge, and EDWARDS and WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Concurring opinion filed by Senior Circuit Judge EDWARDS.

GRIFFITH, Circuit Judge:

It has been the longstanding policy of the United States to take no side in the contentious debate over whether Jerusalem is part of Israel. In this case, the federal courts are asked to direct the Secretary of State to contravene that policy and record in official documents that Israel is the birthplace of a U.S. citizen born in Jerusalem. Because the judiciary has no authority to order the Executive Branch to change the nation's foreign policy in this matter, this case is nonjusticiable under the political question doctrine.

I.

That the United States expresses no official view on the thorny issue of whether Jerusalem is part of Israel has been a central and calibrated feature of every president's foreign policy since Harry S. Truman. See Br. for Appellee at 6; J.A. at 57 (Defendant's Responses to Plaintiff's Interrogatories). State Department policy governing how to describe the status of Jerusalem in passports and Consular Reports of Birth1 of U.S. citizens born there implements the presidential decision to remain neutral. Although the State Department typically records a passport holder's birthplace as the nation with sovereignty over his city of birth, see 7 U.S. DEP'T OF STATE, FOREIGN AFFAIRS MANUAL § 1383.1, passports issued to U.S. citizens born in Jerusalem note only the city, see id. § 1360, app. D ("For a person born in Jerusalem, write JERUSALEM as the place of birth in the passport. Do not write Israel...."). The State Department follows the same policy for Consular Reports of Birth. See Br. for Appellee at 9.

In 2002, Congress passed the Foreign Relations Authorization Act, Fiscal Year 2003, Pub.L. No. 107-228, 116 Stat. 1350 (2002) (codified at 22 U.S.C. § 2651 note (2006)). Section 214 of the Act, entitled "United States Policy with Respect to Jerusalem as the Capital of Israel," challenges the Executive's position on the status of Jerusalem. Id. § 214, 116 Stat. at 1365. Subsection 214(a), for example, "urges the President ... to immediately begin the process of relocating the United States Embassy in Israel to Jerusalem." Id. § 214(a), 116 Stat. at 1365. Under subsection 214(c), Congress forbids the Executive from using appropriated funds for "publication of any official governmental document which lists countries and their capital cities unless the publication identifies Jerusalem as the capital of Israel." Id. § 214(c), 116 Stat. at 1366. And subsection 214(d), the provision at issue in this case, states:

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 [of State] shall, upon the request of the citizen or the citizen's legal guardian, record the place of birth as Israel.

Id. § 214(d), 116 Stat. at 1366. In a written statement issued when he signed the bill into law, the President took the view that section 214 is merely advisory because a congressional command to the Executive to change the government's position on the status of Jerusalem would "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." President George W. Bush, Statement on Signing the Foreign Relations Authorization Act, 38 WEEKLY COMP. PRES. DOC. 1659 (Sept. 30, 2002). Even in signing the Act, the President made clear that "U.S. policy regarding Jerusalem has not changed." Id.

Enactment of the law provoked confusion and criticism overseas. The U.S. Consulate in Jerusalem informed the State Department that "[d]espite [its] best efforts to get the word out that U.S. policy on Jerusalem has not changed, the reservations contained in the President's signing statement have been all but ignored, as Palestinians focus on what they consider the negative precedent and symbolism of an American law declaring that Israel's capital is Jerusalem." J.A. at 398 (October 2002 declassified cable from the U.S. Consulate in Jerusalem to the Secretary of State); see also id. at 396-97 (October 2002 declassified cable from the State Department to U.S. missions abroad).

In October 2002, Menachem Zivotofsky was born in Jerusalem to parents who are U.S. citizens, making him a citizen as well. See 8 U.S.C. § 1401(c) (2006). In December 2002, Menachem's mother applied for a U.S. passport and a Consular Report of Birth for her son at the U.S. Embassy in Tel Aviv, Israel. She requested that both documents record her son's place of birth as "Jerusalem, Israel." U.S. diplomatic officials told Mrs. Zivotofsky that State Department policy forbade them from recording "Israel" as her son's birthplace. Consistent with its policy, the State Department issued a passport and Consular Report of Birth identifying "Jerusalem" as Menachem's place of birth without reference to Israel.

In September 2003, Menachem (by his parents) filed this action for declaratory and injunctive relief ordering the State Department to comply with the directive in section 214(d) and record "Jerusalem, Israel," as his birthplace in both his passport and Consular Report of Birth. The district court ruled that Menachem lacked standing to complain about the contents of the documents because he could use them regardless of how they described his birthplace. Invoking the political question doctrine, the court also concluded that it was without jurisdiction to consider his claim because there is "a textually demonstrable constitutional commitment of the issue to a coordinate political department." Zivotofsky v. Sec'y of State, No. 03-1921, slip op. at 9 (D.D.C. Sept. 7, 2004) (quoting Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)). In the district court's view, the "desired passport wording ... would confer recognition in an official, diplomatic document that Israel has sovereignty over Jerusalem." Id. at 10. Such a result, the court held, would unlawfully trench upon the Executive's exclusive power to recognize foreign governments. Id.

We reversed the district court's decision on standing, concluding that the relevant issue is not whether Zivotofsky can use his passport. He has standing because "Congress conferred on him an individual right to have `Israel' listed as his place of birth on his passport and on his Consular Birth Report," and "the Secretary of State violated that individual right." Zivotofsky v. Sec'y of State, 444 F.3d 614, 619 (D.C.Cir. 2006). We also remanded the case for the district court to determine whether section 214(d) is mandatory or advisory, develop a more complete record, and consider the implications, if any, of Zivotofsky's request, first made in his motion for summary judgment, that his passport and Consular Report of Birth record "Israel" as his place of birth, instead of noting "Jerusalem, Israel," as he pleaded in the complaint. Id. at 619-20. On remand, the district court granted the Secretary's motion to dismiss for lack of subject matter jurisdiction under FED.R.CIV.P. 12(b)(1), holding again that because the complaint asserts a claim that implicates the President's recognition power, it "raises a quintessential political question which is not justiciable by the courts." Zivotofsky v. Sec'y of State, 511 F.Supp.2d 97, 102 (D.D.C.2007).

Zivotofsky appeals the district court's dismissal of his case, which we review de novo. See Piersall v. Winter, 435 F.3d 319, 321 (D.C.Cir.2006). We have jurisdiction to consider the appeal under 28 U.S.C. § 1291 (2006). The threshold question before us is whether the courts have jurisdiction to provide Zivotofsky the relief he seeks or whether he must pursue his remedies from the political branches. See Lin v. United States, 561 F.3d 502, 504 (D.C.Cir.2009).

II.

In Baker v. Carr, the Supreme Court held that courts may not consider claims that raise issues whose resolution has been committed to the political branches by the text of the Constitution. 369 U.S. at 217, 82 S.Ct. 691; see also Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986) (stating that the judiciary may not review "policy choices and value determinations constitutionally committed" to Congress or the Executive). Following the framework laid out in Nixon v. United States, we begin by "interpret[ing] the [constitutional] text in question and determin[ing] whether and to what extent the issue is textually committed" to a political branch. 506 U.S. 224, 228, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993); see also Clinton v. Jones, 520 U.S. 681, 700 n. 34, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997); Powell v. McCormack, 395 U.S. 486, 519, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). But to perform the analysis prescribed by Nixon, we must first determine "the issue" before us. Only then can we decide whether that issue has...

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