Straw v. U.S. Dep't of State
| Decision Date | 14 May 2020 |
| Docket Number | Civil Action No. ELH-19-2294 |
| Parties | ANDREW U.D. STRAW, Plaintiff, v. U.S. DEPARTMENT OF STATE, Defendant. |
| Court | U.S. District Court — District of Maryland |
This litigation is rooted in the denial of a visa to a foreigner who was to serve as a medical escort for an American citizen returning from the Philippines to the United States.
Plaintiff Andrew Straw, a United States citizen currently residing in the Philippines, applied for a loan from the United States Department of State (the "State Department") through a program that repatriates destitute citizens located abroad. Mr. Straw asserts that he has severe physical and mental disabilities and requested funds to cover the travel costs of his Filipina home-health aide, Leslie Castigador Tabbada, so that she could serve as his medical escort. However, the State Department denied Ms. Tabbada's visa request, rendering her ineligible to act as plaintiff's escort. Thereafter, on August 8, 2019, Mr. Straw filed suit against the State Department, alleging, inter alia, discrimination and a denial of due process. ECF 1 (the "Complaint"); ECF 1-2 (Straw Affidavit).
Plaintiff, who is a self-represented lawyer,1 seeks damages as well as injunctive and declaratory relief. In Count I, Mr. Straw asserts a claim for violation of his rights to substantivedue process under the Fifth Amendment to the Constitution, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See ECF 1, ¶¶ 16-17. He seeks damages of $52,000. Id. ¶ 18. Count II alleges that the State Department is liable in the amount of $1,000,000 for violations of the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. § 1691 et seq., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 et seq. ECF 1, ¶¶ 19-22. Plaintiff also seeks various declarations, including a ruling that "denying a severely disabled person an escort" is "discrimination on its face." Id. ¶ 27. And, plaintiff seeks an injunction compelling the State Department to issue Ms. Tabbada "a B1 visa with a full 12-month time period." Id. ¶ 29.
On October 16, 2019, Mr. Straw filed a "Motion For Permission To Include Judiciary Act of 1925 Declaration In Amended Complaint." ECF 17 (the "Motion to Amend"). In his submission, plaintiff seeks to amend his suit to include a claim that the Judiciary Act of 1925, as amended, 28 U.S.C. § 1254, violates "due process ... under the Fifth Amendment, the First Amendment, and Article III [of the Constitution]." ECF 17, ¶ 5.
Then, on November 14, 2019, prior to discovery, plaintiff filed a motion for summary judgment under Fed. R. Civ. P. 56. ECF 20. It is supported by a memorandum of law. ECF 20-1 (collectively, the "Straw S.J. Motion").
On December 6, 2019, the government filed a motion to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) or, in the alternative, for summary judgment under Fed. R. Civ. P. 56. ECF 24. The motion is supported by a memorandum of law (ECF 24-1) (collectively, the "Government Motion") and one exhibit. ECF 24-2. Plaintiff filed a consolidated response to the Government Motion (ECF 25) (the "Opposition"), along with six exhibits. ECF 27-1 to ECF 27-6.2 The government replied on January 9, 2020. ECF 31.
Since then, Mr. Straw has flooded the Court with additional filings. These include a "Notice" accusing the government of "mislead[ing] the Court" in its reply (ECF 32); "Motion To Take Notice" (ECF 33); "Motion for Declaratory Judgment," contesting the government's interpretation of the Rehabilitation Act (ECF 36); "Motion To Take Notice Of Leslie C. Tabbada's 'Starving Artist' Status And O Visa Application, Inter Alia" (ECF 37); "Motion To Take Notice Of Rule 8(b)(6) Applied To The Declaratory Judgment Motion And Proposed Order And Motion To Take Judicial Notice" (ECF 38); and several "Notice[s]" on topics including Mr. Straw's family history, disabilities, prior litigation, and health status in light of the COVID-19 pandemic. ECF 40; ECF 41; ECF 42; ECF 43; ECF 44; ECF 45. The government opposes these filings to the extent that they constitute surreplies. ECF 34; ECF 39. Plaintiff has replied to the government's oppositions. ECF 35; ECF 41.
No hearing is necessary to resolve the various motions. See Local Rule 105.6. For the reasons that follow, I shall deny the Motion to Amend (ECF 17). In addition, I shall deny ECF 33, ECF 36, ECF 37, and ECF 38 as improper surreplies. And, I shall construe the Government Motion (ECF 24) as one for summary judgment, and I shall grant it. Conversely, I shall deny the Straw S.J. Motion (ECF 20).
The State Department Basic Authorities Act of 1956, as amended, 22 U.S.C. § 2651 et seq., authorizes the Secretary of State "to make expenditures, from such amounts as may be specifically appropriated therefor, for unforeseen emergencies arising in the diplomatic and consular service." 22 U.S.C. § 2671(a)(1). Pursuant to this grant of authority, the Secretary may issue "loans . . . to destitute citizens of the United States who are outside the United States . . . to provide for the return to the United States of its citizens." Id. § 2671(b)(2)(B).
Administration of the repatriation loan program in governed by the State Department's Foreign Affairs Manual (the "FAM" or "Manual"). Along with the State Department's handbooks, the Manual "convey[s] codified information to Department staff and contractors so they can carry out their responsibilities in accordance with statutory, executive, and Department mandates." Foreign Affairs Manual and Handbook, U.S. DEP'T OF STATE, http://fam.state.gov/; see also Sheikh v. U.S. Dep't of Homeland Sec., 685 F. Supp. 2d 1076, 1090 (C.D. Cal. 2009) ().
Pursuant to the FAM, the issuance of repatriation loans is purely discretionary. See 7 FAM § 371(c) (Dec. 18, 2019) (). In assessing whether an applicant warrants a repatriation loan, consular officers, in conjunction with the Bureau of Consular Affairs, Directorate of Overseas Citizens Services, Office of American Citizens Services and Crisis Management (the "ACS"), must examine nine "eligibility factors." Id. § 373(e). These include: (1) nationality; (2) prior residence in the United States; (3) destitution; (4) accompanying family members; (5) accompanying escorts; (6) medical repatriation eligibility; (7) absence of a social security number; (8) ineligibility based on military status; and (9) ineligibility based on the applicant being a merchant seamen. See id.
In order for an applicant to qualify for a loan, the consular officer "must determine that the applicant is destitute." Id. § 375.2(b). An applicant qualifies as "destitute" if he or she has "little or no visible means of support or liquid assets"; "no family, friends, neighbors, employers, charitable groups, etc., willing and able to provide adequate financial assistance"; "inadequate food or shelter"; and "no funds available to him or her to pay for the cost of repatriation." Id. To determine whether an applicant is in fact destitute, the consular officer "must" interview the citizen and obtain the names and contact information "of at least" three individuals in the United States who may be able to provide the applicant with financial assistance. Id. § 373.2(c)(1).
Moreover, the consular officer must make a good faith effort to obtain funds from these sources before recommending the applicant for a loan. Id. § 373.2(c)(2). The FAM provides: "If the consular officer is not satisfied that an applicant(s) is destitute, the officer may decline to provide repatriation loan services to the applicant(s) and should notify the [ACS] country officer of the decision." Id. § 373.2(c)(1).
Before the applicant obtains a loan, he or she must satisfy "all of the eligibility requirements" and sign a completed loan application. Id. § 375.2(b). Further, the FAM directs consular officers to "manage public monies expended on behalf of destitute citizens responsibly," id. § 376.3(d)(1), and to accomplish repatriation "by the least expensive means available." Id. § 371.5(a).
The Manual provides that repatriation loans may be used to cover not only the citizen's transportation costs but also expenses "incidental to the return of the individual," id. § 371(i), including the travel costs of an escort. Id. § 371(i)(6). An escort "may be required," for example, where the applicant is an unaccompanied citizen minor, physically or mentally disabled, or elderly. Id. § 374.4(a). In such circumstances, the repatriation loan may include the costs of an escort's travel and a per diem to the last U.S. city where the citizen will be received by local authorities or family members. Id. § 374.4(e). However, the Managing Director for Overseas Citizens Services must approve any escort fee greater than $1,000. Id. § 374.4(f).
As the signatory of the loan, the applicant has the "right to concur in the selection of the escort, based on information provided by the consular officer and subject to airline restrictions and attending physician recommendations." Id. § 374.4(c). But, the applicant's choice of escort is not unlimited: "Escorts must either be U.S. citizens, already have their U.S. visa, or be visa-eligible aliens." Id. § 374.4(b).
Mr. Straw is a United States citizen. ECF 1-2, ¶ 5. Plaintiff avers that he has "severe physical and mental disabilities," ECF 1, ¶ 4, as a result of birth defects and a "head-on" caraccident that occurred in 2001. See id. ¶¶ 4-14; ECF 1-2, ¶ 4; ECF 25, ¶¶ 5, 8, 17; ECF 25-1 to ECF 25-6. Among other...
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