Fitisemanu v. United States

Decision Date12 December 2019
Docket NumberCase No. 1:18-cv-36
Citation426 F.Supp.3d 1155
Parties John FITISEMANU, et al., Plaintiffs, v. UNITED STATES of America, et. al., Defendants.
CourtU.S. District Court — District of Utah

Charles V. Ala'ilima, Ala'ilima and Associates PC, Nu'uuli, AS, Jacob T. Spencer, Jeremy Max Christiansen, Matthew D. McGill, Gibson Dunn & Crutcher LLP, Neil Weare, Equally American Legal Defense & Education Fund, Washington, DC, for Plaintiffs.

Stephen Michael Pezzi, Pro Hac Vice, US Department of Justice, Washington, DC, for Defendants.


Clark Waddoups, United States District Judge

Before the court are three motions—Plaintiffs' Motion for Summary Judgment, (ECF No. 30), Defendant United States of America's (the Government) Motion to Dismiss, (ECF No. 66), and Intervenors American Samoa Government and the Honorable Aumua Amata's (the Intervenors) Motion to Dismiss, (ECF No. 89). As explained below, the court GRANTS Plaintiff's Motion for Summary Judgment and DENIES the Government's and the Intervenors' Motions.


Plaintiffs are three individuals born in American Samoa and a nonprofit corporation based in St. George, Utah. The three individual plaintiffs are John Fitisemanu, Pale Tuli, and Rosavita Tuli. The nonprofit corporation is the Southern Utah Pacific Island Coalition.

Unlike those born in the United States' other current territorial possessions, who are statutorily deemed American citizens at birth, 8 U.S.C. § 1408(1) designates the individual plaintiffs as non-citizen nationals. Plaintiffs argue that their designation as nationals, and not citizens, violates the Fourteenth Amendment. Their position is that because American Samoa is "in the United States," and "subject to the jurisdiction thereof," they are entitled to birthright citizenship under Section 1 of the Fourteenth Amendment.

As explained below, resolution of this case requires the court to choose between two Supreme Court cases and their respective lines of precedent— Wong Kim Ark and Downes v. Bidwell .

The first Supreme Court case is United States v. Wong Kim Ark , 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890 (1898). In Wong Kim Ark , the Supreme Court held that a man of Chinese descent, who was born in the state of California to parents who were never employed in any diplomatic capacity by the Chinese government, and who had never renounced his allegiance to the United States, became a citizen at the time of his birth in the United States—by virtue of the Citizenship Clause of the Fourteenth Amendment. In reaching this conclusion, the Supreme Court discussed at length the importance of the English common law rule of citizenship by birth in determining the meaning of the Citizenship Clause. The Court traced the United States' reliance on the common law rule from its origins in Calvin's Case .

Calvin's Case , decided in 1608, established a two part rule for acquisition of subject status at birth—(1) birth within the King's dominion and (2) allegiance to the King. The Supreme Court in Wong Kim Ark ultimately concluded that "[t]he fourteenth amendment affirms [this] ancient and fundamental rule of citizenship ...." Wong Kim Ark , 169 U.S. at 693, 18 S.Ct. 456. Plaintiffs argue that Wong Kim Ark requires this court to hold that because American Samoa is within the territory of the United States, it is "in the United States" under Section 1 of the Fourteenth Amendment.

The second Supreme Court case, and its line of precedent, which may also provide this court with an answer to the question presented, is Downes v. Bidwell , 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901). The line of cases following Downes are known as the Insular Cases .

Downes did not concern the Fourteenth Amendment. The question in Downes was whether—for purposes of the Tax Uniformity Clause of Article I, Section 8 of the Constitution—Puerto Rico is part of the United States. A splintered majority of the Court ultimately held that Puerto Rico is not part of the United States within the meaning of that provision of the Constitution.

Apart from its holding, Downes is relevant here because it represents the origin of the doctrine of "territorial incorporation," "under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories." See Boumediene v. Bush , 553 U.S. 723, 757, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (citation omitted). The Government argues that "the Citizenship Clause confers citizenship on those born ‘in the United States,’ " and argues that the Supreme Court's "decision in Downes confirms that the language ‘in the United States’ excludes unincorporated territories"—like American Samoa. (See ECF No. 66 at 22.)

As explained below, this court holds that Downes , and the Insular Cases more generally, do not control the outcome of this case. Wong Kim Ark is binding on this court, however.

The Supreme Court in Wong Kim Ark held that the Fourteenth Amendment follows the "established" and "ancient rule of citizenship"—birth within the dominion and allegiance of the sovereign. Because the Supreme Court adopted this rule, and because it has never abrogated it, vertical stare decisis requires this court to apply the rule in this case. As explained below, application of this rule requires the court to hold that American Samoa is "in the United States" for purposes of the Fourteenth Amendment.

Procedural Background and Relief Sought

Plaintiffs filed their Motion for Summary Judgment on March 30, 2018. (ECF No. 30.) They seek summary judgment on all five claims for relief asserted in their Complaint. (ECF No. 30 at 17.)

First, they seek "[a] declaratory judgment that persons born in American Samoa are citizens of the United States by virtue of the Citizenship Clause of the Fourteenth Amendment, and that 8 U.S.C. § 1408(1) is unconstitutional both on its face and as applied to Plaintiffs." (ECF No. 30 at 17.)

Second, they seek "[a]n order enjoining Defendants from enforcing 8 U.S.C. § 1408(1), including enjoining Defendants from imprinting Endorsement Code 091 in Plaintiffs' passports and requiring that Defendants issue new passports to Plaintiffs that do not disclaim their U.S. citizenship." (ECF No. 30 at 17–18.)

Third, they seek a "declaratory judgment that the State Department's policy that ‘the citizenship provisions of the Constitution do not apply to persons born [in American Samoa],’ as reflected in 7 F.A.M. § 1125.1(b) and (d) violates the Fourteenth Amendment ...." (ECF No. 30 at 18.)

Fourth, they seek "[a]n order enjoining Defendants from enforcing 7 F.A.M. § 1125.1(b) and (d)." (ECF No. 30 at 18.)

Fifth, they seek "[a]n order declaring that Defendants' practice and policy of enforcing 8 U.S.C. § 1408(1) and 7 F.A.M. § 1125.1(b) and (d) through imprinting Endorsement Code 09 in the passports of persons born in American Samoa is contrary to constitutional right and is not in accordance with law ...." (ECF No. 30 at 18.)

On June 8, 2018, the Government filed its Motion to Dismiss, arguing that "this action should be dismissed in its entirety for failure to state a claim upon which relief can be granted." (ECF No. 66.)

On that same day, Intervenors filed their Motion to Intervene. (ECF No. 61.) On September 6, 2018, the court held oral argument on the Motion to Intervene. (ECF No. 86). On September 13, 2018, the court entered an order denying intervention of right, but granting permissive intervention. (ECF No. 92.)

In their Motion to Dismiss, Intervenors concurred with the Government's Motion to Dismiss. (ECF No. 89 at 2 n. 1.) They also argued that the court should dismiss the Plaintiff's complaint for two additional reasons. (ECF No. 89 at 7.) First, they argued that it would be impractical and anomalous for the court to impose citizenship "upon American Samoa against its will." (ECF No. 89 at 7.) They also argued that "whether birthright citizenship should extend to the people of American Samoa is a question for the people of America Samoa and its elected representatives, and not for this Court to decide." (ECF No. 89 at 7.)

The court heard argument on the parties' motions on November 14, 2018. (ECF No. 100.)

Undisputed Facts
1. The United States exercises exclusive sovereignty over the U.S. territory of American Samoa.2
2. The U.S. Department of State is an executive department of the United States.
3. The State Department, through its Bureau of Consular Affairs, is responsible for the issuance of United States passports.
4. Mike Pompeo is the current Secretary of State.
5. The Secretary of State or his designee is directly responsible for the execution and administration of the statutes and regulations governing the issuance of U.S. passports.
6. Carl C. Risch is the Assistant Secretary of State for Consular Affairs.
7. Assistant Secretary Risch is responsible for the State Department's Bureau of Consular Affairs and the creation of policies and procedures relating to the issuance of passports. In that capacity, he is Secretary Pompeo's designee as to the execution and administration of the statutes and regulations governing the issuance of U.S. passports.
8. It is the State Department's policy that the Fourteenth Amendment's Citizenship Clause does not apply to persons born in American Samoa. Most individuals born in American Samoa are designated as non-citizen nationals.
9. Generally, U.S. non-citizen nationals are entitled to U.S. passports.
10. Nationals of the United States who are not citizens are entitled only to U.S. passports with appropriate endorsements.
11. Passports issued by the State Department to those born in American Samoa of non-citizen parents contain Endorsement Code 09.
13. A U.S. passport is the only federal document for which a member of

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3 cases
  • Fitisemanu v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 27, 2021
    ...Only one branch—the executive, through the State Department—has spoken definitively on this issue. See Fitisemanu v. United States , 426 F. Supp. 3d 1155, 1159 (D. Utah 2019) (noting the undisputed fact that "[i]t is the State Department's policy that [the Citizenship Clause] does not apply......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 27, 2021
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    • United States District Courts. 10th Circuit. United States District Court of Utah
    • July 9, 2020
    ...are absolutely bound by vertical precedents—those delivered by higher courts within the same jurisdiction.'" Fitisemanu v. United States, 426 F. Supp. 3d 1155, 1182 (D. Utah 2019) (quoting Bryan A. Garner et al., The Law of Judicial Precedent 27 (2016)). "'The rule is that courts must adher......
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  • Indigenous Subjects.
    • United States
    • Yale Law Journal Vol. 131 No. 8, June 2022
    • June 1, 2022
    ...American Samoans are not entitled to birthright citizenship), cert, denied, 579 U.S. 902. (2016). But see Fitisemanu v. United States, 426 F. Supp. 3d 1155, 1196 (D. Utah 2019) (holding that American Samoans are U.S. citizens, a holding that was reversed on appeal), rev'd, 1 F.4th 862 (10th......
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    • Yale Law Journal Vol. 131 No. 8, June 2022
    • June 1, 2022 fully subject to U.S. sovereignty. It was a jarring juxtaposition. (287.) 169 U.S. 649 (1898). (288.) Fitisemanu v. United States, 426 F. Supp. 3d 1155, 1181-96 (D. Utah (289.) Fitisemanu v. United States, 1 F.4th 862, 875, 878-79, pet on for reh'g en banc denied, 20 F.4th 1325 (2021). (......
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    • United States
    • Yale Law Journal Vol. 131 No. 8, June 2022
    • June 1, 2022
    ...788 F.3d 300, 306-07 (D.C. Cir. 2015). (285.) Motion for Summary Judgment and Memorandum in Support at 3, Fitisemanu v. United States, 426 F. Supp. 3d 1155 (D. Utah 2019) (No. (286.) See Cabranes, supra note 191, at 486. (287.) See S. Con. Res. 37-3, 37th Leg., 2d Reg. Sess. (Am. Sam. 2021)......
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    • June 1, 2021
    ...(cleaned up), https:// []. (17.) Fitisemanu v. United States, 426 F. Supp. 3d 1155 (D. Utah 2019), argued, No. 204019 (10th Cir. Sept. 23, 2020). There is an argument to exclude American Samoa from the focus of this Article ......
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