United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 10, 2005 Decided February 17, 2006
Reissued June 7, 2006
No. 04-5395
MENACHEM BINYAMIN ZIVOTOFSKY, BY HIS PARENTS AND
GUARDIANS, ARI Z. AND NAOMI SIEGMAN ZIVOTOFSKY,
APPELLANT
v.
SECRETARY OF STATE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 03cv01921)
Nathan Lewin argued the cause for appellant. With him on
the briefs was Alyza D. Lewin.
Steven Lieberman was on the brief for amici curiae
American Association of Jewish Lawyers and Jurists, et al. in
support of appellant.
Paul Kujawsky was on the brief for amici curiae
Congressmembers Henry A. Waxman, et al.
2
Douglas N. Letter, Litigation Counsel, U.S. Department of
Justice, argued the cause for appellee. With him on the brief
were Peter D. Keisler, Assistant Attorney General, Kenneth L.
Wainstein, U.S. Attorney, Gregory G. Katsas, Deputy Assistant
Attorney General, and Lewis Yelin, Attorney.
Before: SENTELLE, RANDOLPH, and ROGERS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: Menachem Binyamin
Zivotofsky was born in Jerusalem on October 17, 2002. As a
child of U.S. citizens who have resided in the United States, he
also is a U.S. citizen. 8 U.S.C. § 1401(c). The ultimate issue in
this appeal is whether § 214(d) of the Foreign Relations
Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228, 116
Stat. 1350, 1365-66 (2002) (“Authorization Act”), entitles
Menachem to have “Israel” listed on his U.S. passport as his
place of birth. The district court did not reach the issue. It
dismissed the complaint for lack of standing and because it
believed the case presented a political question it could not
resolve.
I.
The complaint alleges that Menachem’s mother visited the
Embassy of the United States in Tel Aviv, Israel (“Embassy”),
on December 24, 2002, to request that her son be registered as
a U.S. citizen and issued a passport and Consular Report of
Birth Abroad with his place of birth designated as “Jerusalem,
Israel.” A Consular Birth Report is “a formal document
certifying the acquisition of U.S. citizenship at birth of a person
born abroad.” 7 U.S. DEPARTMENT OF STATE, FOREIGN AFFAIRS
MANUAL (“FAM”) § 1441(a). Embassy officials denied Mrs.
3
Zivotofsky’s request. According to her declaration, they told
her that although “the issue ha[d] been debated in Congress it
ha[d] not become law.” The Embassy issued a passport listing
Menachem’s place of birth as “Jerusalem” and a Consular Birth
Report designating his birthplace as “Jerusalem.” Neither
document lists a country of birth.
A few months before Mrs. Zivotofsky visited the Embassy,
the President signed the Authorization Act into law. Section
214 is titled “United States policy with respect to Jerusalem as
the capital of Israel.” Subsection (a) “urges the President” to
relocate the U.S. Embassy in Israel to Jerusalem. Subsections
(b) and (c) concern the use of appropriated funds. Subsection
(d), which is the focus of this appeal, provides:
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 shall,
upon the request of the citizen or the citizen’s legal
guardian, record the place of birth as Israel.
Authorization Act § 214(d).1
1
The complaint sought an injunction requiring the
Secretary of State to issue Menachem a passport and Consular
Birth Report with “Jerusalem, Israel” recorded as his place of
birth. Plaintiff’s counsel came to realize that § 214(d) speaks
only in terms of “Israel.” In his memorandum in support of
summary judgment in the district court and in his briefs and oral
argument on appeal, he sought only the designation “Israel.”
The government also treats the case as raising the question
whether § 214(d) entitles Menachem to that relief, and the
government has no objection to our doing the same.
4
When the President signed the Authorization Act into law,
he made the following statement regarding § 214:
Section 214, concerning Jerusalem, impermissibly
interferes with the President’s constitutional authority to
conduct the Nation’s foreign affairs and to supervise the
unitary executive branch. Moreover, the purported
direction in section 214 would, if construed as mandatory
rather than advisory, 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. U.S. policy regarding Jerusalem has
not changed.
Statement by President George W. Bush Upon Signing H.R.
1646, 2002 U.S.C.C.A.N. 931, 932 (Sept. 30, 2002). The status
of Jerusalem is, as a matter of U.S. policy, “a matter to be
resolved by negotiation between the Israelis and Palestinians” in
light of their competing claims of sovereignty over the city. Br.
for Appellee 7.
Section 214 of the Authorization Act conflicts with
instructions in the State Department’s Foreign Affairs Manual.
As a “general rule,” consular officers must “enter the country of
the applicant’s birth in the passport.” 7 FAM § 1383.1(a). It is
the State Department’s “policy [to] show[] the birthplace as the
country having present sovereignty.” Id. § 1383.5-4 (Palestine);
see also id. § 1383.5-5 (Israel-Occupied Areas). But when “the
birthplace of the applicant is located in territory disputed by
another country, the city or area of birth may be written in the
passport.” Id. § 1383.5-2 (Disputed Territory). The Manual
generally gives U.S. citizens born abroad the option of listing
the city of birth “when there are objections to the country listing
shown on the [Department’s] birthplace guide.” Id. § 1383.6(a)
5
(City of Birth Listing). For applicants wishing to exercise this
option, the Manual requires consular officers to inform them of
the “difficulties which they may encounter in traveling to, or
obtaining visas for entry into, certain foreign countries.” Id.
§ 1383.6(b).2
The Manual has special rules regarding Israel and the
occupied territories. For example, if a passport applicant was
“born [before 1948] in the area formerly known as Palestine,”
the passport may “show Palestine as the birthplace in individual
cases upon consideration of all the circumstances”; if the
applicant was born in 1948 or thereafter, “the city or town of
birth may be listed if the applicant objects to showing the
country having present sovereignty.” Id. § 1383.5-4. The same
is true of “Israel-Occupied Areas,” such as the Golan Heights,
the West Bank, and the Gaza Strip. See id. § 1383.5-5. With
regard to Jerusalem, the Manual differentiates between
applicants born before and after the existence of an official
Israeli state. See id. § 1383.5-6 (Jerusalem). For those like
Menachem – a citizen born in Jerusalem after May 14, 1948 –
the Manual requires the person’s place of birth to be recorded as
“JERUSALEM.” See id. § 1383.1(b) (requiring compliance
with the “birthplace transcription guide” when “entering the
place of birth in the passport”); id. § 1383 Ex. 1383.1, Pt. II
(Birthplace Transcription Guide for Use in Preparing Passports)
(JERUSALEM) (citing id. §§ 1383.5-5, .5-6); see also id.
(ISRAEL) (indicating that Israel “[d]oes not include Jerusalem”)
(citing id. § 1383.5-5).
2
We will assume, as the parties do, that the State
Department’s policies regarding place of birth transcription on
Consular Birth Reports are the same as they are for passports.
See 7 FAM § 1445.5-1 (Children Previously Documented as
U.S. Citizens).
6
II.
As to Menachem’s standing to bring this action, the
government argues that he cannot satisfy the injury-in-fact
requirement derived from Article III of the Constitution. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). He is
now only three years old. The claim that someday, when he is
older, he might suffer psychological harm from the Secretary’s
passport decision is, the government argues, purely conjectural
and in any event not an imminent injury, as the law requires.3
However that may be, we think he has suffered another sort of
injury in fact and therefore has standing.
The Supreme Court has recognized that “Congress may
enact statutes creating legal rights, the invasion of which creates
standing, even though no injury would exist without the statute.”
Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973). Or
stated differently, “Congress may create a statutory right or
entitlement the alleged deprivation of which can confer standing
to sue even where the plaintiff would have suffered no judicially
cognizable injury in the absence of statute.” Warth v. Seldin,
422 U.S. 490, 514 (1975); see Lujan, 504 U.S. at 578.
A common example of such a statute is the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552. Anyone whose
request for specific information has been denied has standing to
bring an action; the requester’s circumstances – why he wants
the information, what he plans to do with it, what harm he
3
Menachem did not claim that he was experiencing
“difficulties . . . in traveling to, or obtaining visas for entry into,
certain foreign countries” because his passport indicates his city
of birth. 7 FAM § 1383.6(b).
7
suffered from the failure to disclose – are irrelevant to his
standing. See, e.g., Pub. Citizen v. U.S. Dep’t of Justice, 491
U.S. 440, 449 (1989). The requester is injured-in-fact for
standing purposes because he did not get what the statute
entitled him to receive. See FEC v. Akins, 524 U.S. 11, 23-25
(1998); id. at 30-31 (Scalia, J., dissenting); Pub. Citizen v. U.S.
Dep’t of Justice, 491 U.S. at 449; Pub. Citizen v. FTC, 869 F.2d
1541, 1548 n.13 (D.C. Cir. 1989); Rushforth v. Council of Econ.
Advisers, 762 F.2d 1038, 1039 n.3 (D.C. Cir. 1985); Brandon v.
Eckard, 569 F.2d 683, 687-88 (D.C. Cir. 1977). The same
injury can give a plaintiff standing to enforce the Government
in the Sunshine Act, 5 U.S.C. § 552b, see Rushforth, 762 F.2d
at 1039 n.3, and the Federal Advisory Committee Act, 5 U.S.C.
app. 2 §§ 1-16, see Pub. Citizen v. U.S. Dep’t of Justice, 491
U.S. at 449.4 Other Supreme Court statutory standing cases are
similar. The “Supreme Court has expressly ruled that persons
seeking to vindicate a statutory right to information have
standing even if they know or should know that the untruthful
information they receive is false, see Havens Realty [Corp. v.
Coleman, 455 U.S. 363, 374 (1982)], and even if the information
is available to them through other channels, see [Va. State Bd.
of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S.
748, 757 n.15 (1976)].” Pub. Citizen v. FTC, 869 F.2d 1541,
1548 n.13 (D.C. Cir. 1989).
The Supreme Court has qualified statutory standing in one
respect. In Lujan the Court held that the citizen-suit provision
of the Endangered Species Act of 1973 § 11(g), 16 U.S.C.
§ 1540(g), could not bestow standing on plaintiffs who claimed
no “particularized” injury, but only a generalized interest shared
4
For this reason, no one questioned the plaintiffs’
standing in Judicial Watch, Inc. v. Nat’l Energy Policy Dev.
Group, 219 F. Supp. 2d 20 (D.D.C. 2002), ordered dismissed by
In re Cheney, 406 F.3d 723, 731 (D.C. Cir. 2005) (en banc).
8
by all citizens in the proper administration of the law. 504 U.S.
at 573-74; see also Sierra Club v. Morton, 405 U.S. 727, 738
(1972) (“[Statutory] broadening [of] the categories of injury that
may be alleged in support of standing is a different matter from
abandoning the requirement that the party seeking review must
himself have suffered an injury.”). By “particularized” the
Court meant “that the injury must affect the plaintiff in a
personal and individual way.” Lujan, 504 U.S. at 560 n.1.
While a person would have standing to vindicate his “individual
right” created by statute, “the public interest in the proper
administration of the laws . . . [cannot] be converted into an
individual right by a statute that denominates it as such, and that
permits all citizens (or, for that matter, a subclass of citizens
who suffer no distinctive concrete harm) to sue.” Id. at 576-77.
Otherwise, the federal courts would intrude upon the President’s
constitutional duty to “take Care that the Laws be faithfully
executed,” U.S. CONST. art. II, § 3, in violation of the separation
of powers. Lujan, 504 U.S. at 577.5
Menachem’s case presents no such problem. When a
plaintiff is the “object of [government] action (or forgone
action) . . . . there is ordinarily little question that the action or
inaction has caused him injury, and that a judgment preventing
or requiring the action will redress it.” Id. at 561-62. Although
it is natural to think of an injury in terms of some economic,
physical, or psychological damage, a concrete and particular
injury for standing purposes can also consist of the violation of
an individual right conferred on a person by statute. Such an
injury is concrete because it is of “a form traditionally capable
5
This case would be like Lujan if someone born in the
United States with no connection to anyone born in Jerusalem
sued the State Department claiming that it was violating
§ 214(d) by not complying with requests of U.S. citizens born in
Jerusalem to put “Israel” on their passports.
9
of judicial resolution,” Schlesinger v. Reservists Comm. to Stop
the War, 418 U.S. 208, 220-21 (1974), and it is particular
because, as the violation of an individual right, it “affect[s] the
plaintiff in a personal and individual way,” Lujan, 504 U.S. at
560 n.1.
The injuries in the FOIA cases mentioned above are of this
sort. See Sargeant v. Dixon, 130 F.3d 1067, 1070 (D.C. Cir.
1997) (“The receipt of information is a tangible benefit the
denial of which constitutes an injury.”). And so is Menachem’s.
See Allen v. Wright, 468 U.S. 737, 751-52 (1984) (“In many
cases the standing question can be answered chiefly by
comparing the allegations of the particular complaint to those
made in prior standing cases.”). His allegation that 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
is at the least a colorable reading of the statute. He also alleges
that the Secretary of State violated that individual right. This is
sufficient for Article III standing. See Reservists Comm. to Stop
the War, 418 U.S. at 224 n.14. Menachem’s injury is not “too
abstract,” the connection between the allegedly illegal conduct
and the injury is not “too attenuated,” and the prospect of his
obtaining relief from a favorable ruling is not “too speculative.”
Allen, 468 U.S. at 752. Under Article III of the Constitution, the
“imperatives of a dispute capable of judicial resolution are
sharply presented issues in a concrete factual setting and self-
interested parties vigorously advocating opposing positions.”
U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 403 (1980).
Menachem’s suit satisfies each element and he therefore has
standing to sue.
III.
The district court concluded that a U.S. passport inscribed
“Jerusalem, Israel” might signify to others that the United States
10
recognized Israel’s sovereignty over Jerusalem. Yet “[p]olitical
recognition is exclusively a function of the Executive.” Banco
Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964); see
also Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415, 420
(1839). For this reason the district court found that the case
presented a political question – that is, a claim of unlawfulness
that was nonjusticiable. See Vieth v. Jubelirer, 541 U.S. 267,
277 (2004) (plurality opinion); Schneider v. Kissinger, 412 F.3d
190, 193-94 (D.C. Cir. 2005). The case, however, no longer
involves the claim the district court considered. See supra note
1. Both sides agree that the question now is whether § 214(d)
entitles Menachem to have just “Israel” listed as his place of
birth on his passport and on his Consular Birth Report.
Whether this, too, presents a political question depends on
the meaning of § 214(d) – is it mandatory or, as the government
argues, merely advisory? And it may depend also on what the
effect would be of listing “Israel” on the passports of citizens
born in Jerusalem. Among other things, Menachem contends
that there “are tens of thousands of American citizens today
whose passports identify them as born in ‘Israel,’” Br. for
Appellant 20; that “no one will be able to distinguish” those
born in Jerusalem “from American citizens born in Tel Aviv or
Haifa” if their passports list “Israel” as their birthplace, id.; that
“there is little foreign-policy impact in how American citizens
are described in their passports,” id. at 21; and that “[f]oreign
sovereigns rely only on the ‘identity and nationality’ attestation
of the Secretary of State, not on the passport’s other information
such as the passport-holder’s date or place of birth,” id. at 22.
Menachem also cites evidence that “the United States Embassy
in Tel Aviv issues death certificates that describe Shaarei Zedek
Hospital in Jerusalem – the same hospital where the plaintiff
was born – as located in ‘JERUSALEM, ISRAEL.’” Id. at 26.
As to the last point, the government denies that there is any such
policy with respect to death certificates. Br. for Appellee 27 n.3.
11
And the government also takes issue with Menachem’s other
factual assertions.6
In light of all this, we believe the proper course is to remand
the case to the district court so that both sides may develop a
more complete record relating to these and other subjects of
dispute.
So ordered.
6
Some of the government’s nonjusticiability arguments
are based on separation-of-powers principles. Because “[t]he
nonjusticiability of a political question is primarily a function of
the separation of powers,” Baker v. Carr, 369 U.S. 186, 210
(1962), these arguments overlap and, in light of our disposition,
we decline to reach them.