Carmichael v. Pompeo, Civil Action No. 19-2316 (RC)

• Citation: 486 F.Supp.3d 360
• Decision Date: 28 August 2020
• Docket Number: Civil Action No. 19-2316 (RC)
• Parties: David Alan CARMICHAEL, et al., Plaintiffs, v. Michael Richard POMPEO, in his Official capacity as Secretary of State, et al., Defendants.
• Court: U.S. District Court — District of Columbia

486 F.Supp.3d 360

David Alan CARMICHAEL, et al., Plaintiffs,

v.Michael Richard POMPEO, in his Official capacity as Secretary of State, et al., Defendants.

Civil Action No. 19-2316 (RC)

United States District Court, District of Columbia.

Signed August 28, 2020

David Alan Carmichael, Hampton, VA, pro se.

Lawrence Donald Lewis, Nordman, ID, pro se.

William Pakosz, Matteson, IL, pro se.

Christopher Charles Hair, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS ; DENYING PLAINTIFFS’ PARTIAL MOTION FOR SUMMARY JUDGMENT AND INJUNCTION ; DENYING PLAINTIFFS’ ADDITIONAL PENDING MOTIONS

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

This case concerns Plaintiffs David Alan Carmichael, Lawrence Donald Lewis, and Mitchell Pakosz ("Plaintiffs") and Defendants Michael Richard Pompeo, sued in his official capacity as Secretary of State, and the U.S. Department of State ("the Government"). Carmichael, Lewis, and Pakosz attempted to renew their U.S. passports in 2018, 2019, and 2017 respectively, and each requested a religious accommodation from the requirement that they provide their social security numbers on their passport renewal applications. Carmichael, Lewis, and Pakosz assert that identifying with a social security number is prohibited by their Christian faith. While Carmichael's renewed passport was initially granted, it was later revoked after the Government determined that Carmichael had not provided his social security number in his renewal application, and his passport had thus been issued erroneously. Lewis and Pakosz's passport renewal applications were denied for failure to provide social security numbers.

Carmichael, Lewis, and Pakosz brought nine causes of action against the Government under the U.S. Constitution and various federal statutes, including the First Amendment, the Fifth Amendment, the Ninth Amendment, the Foreign Relations Authorization Act, the Religious Freedom Restoration Act, the Privacy Act, Executive Order 13798, and federal criminal statutes.

The Government has moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim, or, in the alternative, for summary judgment. In response, Carmichael, Lewis, and Pakosz move for partial summary judgment and ask for an injunction on their first cause of action under the Foreign Relations Authorization Act. For the reasons set forth below, the Court largely grants the Government's motion to dismiss and denies Plaintiffs’ motion for partial summary judgment. However, the Court finds that Plaintiffs state a proper claim under the Religious Freedom Restoration Act and that the Government is not entitled to summary judgment on that claim. Additionally, the Court finds that Plaintiffs have properly stated a claim under the Privacy Act.

II. FACTUAL BACKGROUND

In 2007 Plaintiffs Carmichael and Pakosz applied for U.S. passports, and both men asked for a religious accommodation exempting them from the requirement that they provide their social security number on the application. Am. Compl. ¶¶ 16–17, ECF No. 15. Plaintiff Lewis did the same in 2008. Id. ¶ 18. All three plaintiffs received passports, despite not including their social security numbers on their passport applications. Id. ¶¶ 16–18. Carmichael, Lewis, and Pakosz assert that they are "prohibited from identifying with a Social Security Number ... on the basis of the Christian religion" and "[a]ny demand for either of them to identify with a [social security number] places a substantial burden upon their religion." Id. ¶ 14. While Carmichael, Lewis, and Pakosz allege that they were granted a religious accommodation when they were originally issued passports, see id. ¶¶ 16–18, the Government asserts that "[t]here was no consideration of [a] claim for a religious accommodation," and applicants were not required to provide social security numbers in their passport applications at that time, Rolbin Decl. ¶ 4, ECF No. 24–2. However, The Government notes that the Fixing America's Surface Transportation ("FAST") Act, enacted in 2015, granted the Government the authority to "deny a passport application if the applicant fails to provide their [social security number]." Id.

In 2018, Carmichael applied to renew his passport, and, again, he requested a religious accommodation to the requirement that he provide his social security number in his passport renewal application. Am. Compl. ¶ 19. Lewis and Pakosz applied to renew their passports, also including a request for a religious accommodation, in 2019 and 2017, respectively. Id. ¶¶ 20–21. With their passport renewal applications, Carmichael, Lewis, and Pakosz sent letters to the Government explaining why identifying with a social security number violated their religious beliefs. See id. ¶¶ 19, 42–43, 55, 57. Plaintiffs’ passport renewal applications were also accompanied by a "Privacy Act Statement" from the Government that outlined the authority under which the Government requested Plaintiffs’ social security numbers, the purpose of requesting the social security numbers, and a non-exhaustive list of routine uses for information collected from passport renewal applications. Id. ¶ 104; see also Pls.’ Mem. Supp. Resp. Mot. Dismiss and Cross Mot. Summ. J. ("Pls.’ Mem."), ¶ 57(ii), ECF No. 27–1 (reproducing the statement as an undisputed fact). The "Privacy Act Statement" also included a statement that, while providing the requested information was voluntary, failing to provide that information could result in a processing delay or application denial. Am. Compl. ¶ 104; see also Pls.’ Mem. ¶ 57(ii).

Carmichael's passport renewal was approved, and his renewed passport was issued in January 2018 without Carmichael providing his social security number on his application. Am. Compl. ¶ 19. However, the Government contacted Lewis and Pakosz, asking each to either provide his social security number or sign a statement that he had never been issued one. Id. ¶¶ 46, 56. Both Lewis and Pakosz responded that they could not sign a statement that they had never been issued a social security number and reiterated their request for a religious accommodation. See id. ¶¶ 47, 56–67. Both Lewis and Pakosz's passport renewal applications were subsequently denied. Id. ¶¶ 49, 68. Neither Lewis nor Pakosz was given the opportunity to appeal the denial. Id. ¶¶ 26, 82; see also id. ¶ 124 (asserting that all three Plaintiffs were denied an appeal process).

After Pakosz's application was denied, Pakosz contacted Carmichael for assistance, and, on Pakosz's behalf, Carmichael spoke to an employee of the Government who stated that there was no appeal process for the denial of a religious accommodation. Id. ¶¶ 26–27. Carmichael and Pakosz then filed Freedom of Information Act ("FOIA") requests for the names and contact information of Department employees involved in processing passport applications, see id. ¶¶ 29, 73, and sent letters to various politicians, including President Donald Trump and Vice President Mike Pence, among others, further explaining their request for a religious accommodation, id. ¶¶ 31, 69–71, 76–79, 86. Enclosed with one letter to the Government, Pakosz states that he "sent information that explains the SSN offence against religion in a document called ‘The Mark of The Beast ... It Is Here, Now.’ " Id. ¶ 69.

Approximately three months later, Carmichael received a letter from the Government stating that his renewed passport had been issued erroneously because he did not provide his social security number in his passport renewal application, that his passport had been revoked pursuant to 22 C.F.R. § 51.62(a)(2), and that he could request an appeal hearing. Id. ¶ 33. Carmichael seemingly did not request a hearing. Def. Mot. Dismiss ("Gov't Mot.") at 20, ECF No. 24; see also Am. Compl. (nowhere mentioning that Carmichael availed himself of this opportunity for a hearing).

Carmichael brought this action on July 31, 2019, see Compl., ECF No. 1, and Plaintiffs Lewis and Pakosz were added to this action in November 2019, see Order, ECF, No. 11. Carmichael, Lewis, and Pakosz filed their amended complaint in December 2019, in which they raise nine causes of action under the United States Constitution and various federal laws. See Am. Compl. The Government now moves to dismiss, or in the alternative for summary judgment, on all nine causes. See Gov't Mot. Carmichael, Lewis, and Pakosz move for partial summary judgment and request an injunction on their first cause of action under the Foreign Relations Authorization Act. See Pls. Mem.

III. LEGAL STANDARD

Federal courts have subject-matter jurisdiction where a claim "arises under" federal law. Merrell Dow Pharm. Inc. v. Thompson , 478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). "Rule 12(b)(1) presents a threshold challenge to the Court's jurisdiction ... [and] the Court is obligated to determine whether it has subject-matter jurisdiction in the first instance." Curran v. Holder , 626 F. Supp. 2d 30, 32 (D.D.C. 2009) (quoting Agrocomplect, AD v. Republic of Iraq , 524 F. Supp. 2d 16, 21 (D.D.C. 2007) ). Subject-matter jurisdiction cannot be waived, and "[w]hile pro se complaints are held to a less stringent standard than other complaints, even a pro se plaintiff bears the burden of establishing that the Court has subject-matter jurisdiction." Id. at 33 (citations and internal quotations omitted); see also Jathoul v. Clinton , 880 F. Supp. 2d 168, 170 (D.D.C. 2012) ("To survive a motion to dismiss under Rule 12(b)(1), Plaintiff bears the burden of proving that the Court has subject-matter jurisdiction to hear her claims.").

To evaluate "a motion to dismiss under Rule 12(b)(1), [courts] must treat the complaint's factual allegations as true ... [granting] plaintiff the benefit of all inferences that can be derived from the facts alleged." Clinton , 880 F. Supp. 2d at 169 (...