Alsaidi v. U.S. Dep't of State

• Decision Date: 20 February 2018
• Docket Number: Civil Action No. 17–0465 (ESH)
• Citation: 292 F.Supp.3d 320
• Parties: Boshra ALSAIDI, Plaintiff, v. UNITED STATES DEPARTMENT OF STATE and United States Department of State, National Passport Center, Defendants.
• Court: U.S. District Court — District of Columbia

292 F.Supp.3d 320

Boshra ALSAIDI, Plaintiff,

v.UNITED STATES DEPARTMENT OF STATE and United States Department of State, National Passport Center, Defendants.

Civil Action No. 17–0465 (ESH)

United States District Court, District of Columbia.

Signed February 20, 2018

Martin F. McMahon, McMahon & Associates, Washington, DC, for Plaintiff.

Sairah Gul Saeed, U.S. Department of Justice, Office of Immigration Litigation, Melanie Dyani Hendry, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, United States District Judge

Plaintiff Boshra Alsaidi has sued the United States Department of State ("State Department") and the National Passport Center (collectively "defendants") alleging that defendants arbitrarily and capriciously refused to renew her passport based on an improper finding that she was not a citizen by birth, or that the reason given was a pretext for an informal policy of discrimination against Muslims or, more specifically, against people from Yemen. (Compl. ¶¶ 11–18, ECF No. 1.) Plaintiff brings her claims under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, and the Mandamus Act, 28 U.S.C. § 1361 (Compl. ¶¶ 1, 4), and requests that the Court order the State Department to renew her passport and award her attorney's fees. (Id. at 6, 7.) Defendants have filed a motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). (Def.'s Mot. Dismiss, ECF No. 12 ("Mot.").) Upon consideration of the parties' pleadings and for the reasons discussed herein, the Court finds plaintiff has failed to state a claim upon which relief can be granted and therefore grants defendants' motion to dismiss.

BACKGROUND

I. FACTS

Boshra Alsaidi was born in the United States in 1977. (Compl. ¶ 7.) At the time, her father was serving as Second Secretary of the Permanent Mission of the Yemen Arab Republic to the United Nations. (Id. ¶¶ 7–8; Mot. Ex. A, ECF No. 12–1.) Alsaidi applied for and was first issued a U.S. passport on March 25, 2003. (Mot. Ex. B at 1, ECF No. 12–2.) She applied to renew her passport on January 4, 2013. (See Mot. Ex. A.) The National Passport Center denied her passport renewal application on February 23, 2013, stating that because Alsaidi was born while her father held a position that granted him and his immediate family diplomatic immunity and privileges, Alsaidi was "not born subject to the jurisdiction of the United States" and therefore could not "benefit from the Fourteenth Amendment's citizenship provision."¹ (Mot. Ex. A; Compl. ¶¶ 7–9.)

II. PROCEDURAL HISTORY

Plaintiff filed her complaint on March 15, 2017. The complaint contains two counts, each seeking the same remedy—an order requiring the State Department to renew plaintiff's passport and award attorney's fees. (See Compl. at 6, 7.) She brings both claims under the APA and the Mandamus Act (id. ¶¶ 1, 4), arguing that the State Department and National Passport Center denied her passport renewal application on the inaccurate basis that she was not a citizen and pursuant to an informal policy of discrimination based on religion or national origin. (Id. ¶¶ 12–13, 16, 18.)

The first count alleges that the State Department adheres to a discriminatory "double standard," which provides evidence of "arbitrary and capricious conduct." (Id. ¶ 12.) Specifically, the complaint alleges that "[a]fter 9/11 all U.S. federal agencies were instructed to be very careful when it came to renewing VISAS or passports or any other immigration documents pertaining to individuals like the Plaintiff who had lived in Yemen." (Id. ) In addition, "[t]his special instruction was particularly directed at individuals who came from countries that were largely Muslim" and that "is the identical conduct that President Trump is engaging in today."² (Id. ) Thus, although the complaint makes no independent claim of discrimination, Alsaidi's legal theory is that, based on the instructions of "unknown higher ups located in Washington D.C.," passport center employees "searched the records of the Plaintiff to see if they could find a basis to reject her passport renewal." (Id. ¶ 13.) The complaint alleges that "[t]hey seized on ... [ 8 U.S.C. § 1401(a) ] of the Immigration Nationality Act of 1952," (id. ), as a means of denying Alsaidi's passport renewal even though Alsaidi claims that she is a U.S. citizen and that the reason given for the denial is legally insufficient because she claims it misreads 8 C.F.R. § 101.3 (id. ¶¶ 14–16), which defines the circumstances under which persons born to foreign government officers or employees are born subject to the jurisdiction of the United States and considered U.S. citizens by birth. But see infra , note 6.

The second count essentially realleges the same facts under the rubric of a discrimination claim, but also premises her claim for relief on the APA and the Mandamus Act. (See Compl. ¶¶ 1–4.) The second count alleges that "the State Department procedures and policies prohibited State Department officials from engaging in any discriminatory conduct," that the passport center employees nevertheless engaged in an "unlawful discriminatory practice," and that this was because they were "directed that whenever a Muslim applicant presented a request to have a passport renewed or a request from an individual with ties to a predominately Muslim country, that they had to deny those requests, whether there was a good faith basis to do so or otherwise." ( Id. ¶ 18.) The complaint then realleges that the State Department has an informal policy "much like all federal agencies post 9/11 ... to prevent any Muslim from entering America," and that, as a result, State Department employees "were directed to find some reason for denying Plaintiff's application to have her passport renewed, whether justified or not." (Id. )

Although Alsaidi's complaint includes two counts, the factual underpinnings are exactly the same, the legal theories are the same, and the relief sought is identical, that is, an order requiring that defendants renew her passport. (Id. ¶¶ 12–18.) Defendants have moved to dismiss the complaint under Rule 12(b)(6) for failure to state a claim, arguing that because plaintiff has an adequate alternative remedy available under 8 U.S.C. § 1503, she cannot bring her claims under the APA and the Mandamus Act. (Mot. at 3–4.)

STANDARD OF REVIEW

"A Rule 12(b)(6) motion tests the legal sufficiency of a complaint." Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002). "To 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A facially plausible claim requires the plaintiff to plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully," because "[w]here a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ’ " Id. (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ).

While the Court does not "assume the truth of legal conclusions" or "accept inferences that are unsupported by the facts set out in the complaint," Arpaio v. Obama , 797 F.3d 11, 19 (D.C. Cir. 2015), the Court nevertheless treats "the complaint's factual allegations as true and must grant the plaintiff the benefit of all inferences that can be derived from the facts alleged." L. Xia v. Tillerson , 865 F.3d 643, 649 (D.C. Cir. 2017) (alteration omitted). That said, a complaint will not "suffice if it tenders naked assertions devoid of further factual enhancement." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

ANALYSIS

I. Administrative Procedure Act Claim

"[T]he APA provides that final agency action is subject to judicial review where there is no other adequate remedy." Doe v. U.S. Dep't of Justice , 660 F.Supp.2d 31 (D.D.C. 2009) (citing 5 U.S.C. § 704 ) ). An adequate alternative remedy "need not provide relief identical to relief under the APA, so long as it offers relief of the ‘same genre.’ " Garcia v. Vilsack , 563 F.3d 519, 522 (D.C. Cir. 2009) (quoting Santa Cruz Neighborhood Health Ctr. v. U.S. Dep't of Health & Human Servs. , 396 F.3d 1265, 1272 (D.C. Cir. 2005) ). "[F]or example, relief will be deemed adequate ‘where a statute affords an opportunity for de novo district-court review’ of the agency action." Id. at 522–523 (quoting Santa Cruz Neighborhood Health Ctr. , 396 F.3d at 1270 ). The question is therefore whether plaintiff has available an adequate alternative remedy.

In her complaint, plaintiff asks only that her passport be renewed. She alleges the denial of her passport renewal application was based wrongly on the ground that she is not a U.S. citizen. Under 8 U.S.C. § 1503(a), if any person within the United States "claims a right or privilege as a national of the United States and is denied such right or privilege by any department ... or official thereof, upon the ground that [s]he is not a national of the United States," she may institute an action "for a judgment declaring [her] to be a national of the United States." 8 U.S.C. § 1503(a) ; see Xia , 865 F.3d at 655 (" Section 1503 provides for judicial review of denials of any ‘right or privilege’ of citizenship, including invalidations of passports."). To initiate such action, a "plaintiff need make only a prima facie case establishing her citizenship by birth or naturalization," Xia , 865 F.3d at 652 (citing Perez v. Brownell , 356 U.S. 44, 47 n.2, 78 S.Ct. 568, 2 L.Ed.2d 603 (1958), overruled on other grounds by Afroyim v. Rusk , 387 U.S. 253, 268, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967) ),...