UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ABDO LUFTU ALI,
Plaintiff,
Vv.
Civil Case No. 20-01436 (RJL)
UNITED STATES DEPARTMENT OF
STATE,
Nee Nee Nee Ne Ne ee” ee ee ee” ee”
Defendant.
MEMORAN f UM OPINION
(Marchf Y, 2021) [Dkt. # 6]
Plaintiff Abdo Ali (“plaintiff’ or “Ali’”) brings this action under the Administrative
Procedure Act (“APA”) against the U.S. Department of State (“State Department” or
“defendant”), seeking an order setting aside defendant’s revocation of Ali’s U.S.
passport. Compl. [Dkt #1] § 1. Presently before the Court is defendant’s Motion to
Dismiss under Federal Rule of Civil Procedure 12(b)(6), in which defendant argues that
plaintiff fails to state a claim under the APA because there is an alternative remedy
available under the Immigration and Nationality Act of 1952 (“INA”). Defendant’s Mot.
to Dismiss Pl.’s Compl. (“Def.’s Mot.) [Dkt. #6-1] at 1. Upon consideration of the
parties’ pleadings, relevant law, the entire record herein, and for the reasons stated below,
I agree and therefore GRANT defendant’s motion.
BACKGROUND
Ali currently resides in Oxford, Mississippi, but he was born in Yemen in 1979.
l
At the time, Ali’s father was a U.S. citizen, having naturalized approximately ten and a
half years earlier in January 1969. Compl. 48. In 1990, Ali was first issued a U.S.
passport under Section 301(g) of the INA on the grounds that he was a child of a U.S.
citizen, who, prior to Ali’s birth, had been present in the U.S. for at least ten years,
including at least five while he was older than fourteen. Jd. 410. Ali entered the United
States in 1994 and was issued passport renewals in 1999 and 2009. Id. § 13.
Because passports “may be issued only to a U.S. national,” 22 C.F.R. § 51.2(a),
the initial issuance of Ali’s passport and the subsequent renewals necessarily constituted
findings that Ali was a U.S. national. See Compl. ff 14, 19. On January 8, 2019,
however, the State Department revoked Ali’s passport on the ground that he was not a
USS. national. Id. ¥ 15; see also 22 C.F.R. § 51.62(b) (“The Department may revoke a
passport when the Department has determined that the bearer of the passport is not a U.S.
national.”). In a letter to Ali, the State Department explained its decision by noting that
sometime after the 2009 renewal, “[a]n investigation .. . revealed that [Ali’s] father was
not physically present in the United States for ten years before [Ali’s] birth,” as was then
required by Section 301(g) of the INA. See Ex. A to Pl.’s Opp. to Def.’s Mot. to Dismiss
(“PI.’s Opp.’”) [Dkt. #9-1] at 1.! The letter cited documentation supporting its position
but lacked any explanation as to why the State Department had initially issued Ali a
passport and subsequently renewed it twice. Jd.; Compl. 418.
On May 30, 2020, Ali filed this suit under the APA, 5 U.S.C. § 701 et seq.,
' No hearing was held on the decision to revoke Ali’s passport because none was required under 22
C.F.R. § 51.70(b)(5).
seeking to set aside the revocation decision. See Compl. at 8. The complaint alleges that,
“to the best of his knowledge,” Ali is a citizen and national of the United States, id. { 3,
and that the State Department’s decision to revoke his passport was “arbitrary . . . as well
as not being in accordance with law.” Id. § 1. In the alternative, the complaint states that
“even if [Ali] is not a national of the United States,” the revocation should still be set
aside because the State Department “is estopped by laches and equitable estoppel from
revoking [] Ali’s passport.” Jd. § 2.
STANDARD OF REVIEW
In analyzing a motion to dismiss under Rule 12(b)(6), the Court accepts the factual
allegations in the complaint as true and draws all reasonable inferences in plaintiff's
favor. Nat’l Postal Prof’l Nurses v. U.S. Postal Serv., 461 F. Supp. 2d 24, 27 (D.D.C.
2006). To survive, a complaint must “state a claim upon which relief can be granted.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 552 (2007). That is, the complaint must
contain sufficient factual allegations that, if accepted as true, state a claim to relief that
“is plausible on its face.” Jd. at 570. In analyzing a motion under Rule 12(b)(6), the
Court may consider “the facts alleged in the complaint, any documents either attached to
or incorporated in the complaint[,] and matters of which [the Court] may take judicial
notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
ANALYSIS
The APA provides for judicial review where an individual “suffer[s] [a] legal
wrong because of agency action” or is “adversely affected or aggrieved by agency
action.” 5 U.S.C. § 702. But this broad grant of authority is limited to those situations
3
where “there is no other adequate remedy in a court.” 5 U.S.C. § 704; see also Perry
Capital LLC v. Mnuchin, 864 F.3d 591, 621 (D.C. Cir. 2017) (holding absence of an
alternative remedy is an element of an APA claim). Where such an alternative remedy
exists, courts may not review a claim under the APA or exercise their authority to “hold
unlawful and set aside agency action,” 5 U.S.C. § 706. See Bowen v. Massachusetts, 487
U.S. 879, 903 (1988) (noting that 5 U.S.C. § 704 “makes it clear that Congress did not
intend the general grant of review in the APA to duplicate existing procedures for review
of agency action”).
In assessing whether an adequate alternative remedy exists, courts “look for clear
and convincing evidence of legislative intent to create a special, alternative remedy.”
Citizens for Responsibility and Ethics in Washington v. U.S. Dep’t of Justice, 846 F.3d
1235, 1244 (D.C. Cir. 2017) (quoting Garcia v. Vilsack, 563 F.3d 519, 523 (D.C. Cir.
2009) (internal quotation marks omitted)). Our Circuit Court has identified several
instances where an alternative remedy is adequate, including “where Congress has
provided ‘an independent cause of action or an alternative review procedure,’” id. at 1245
(quoting E/ Rio Santa Cruz Neighborhood Health Ctr., Inc. v. U.S. Dep't of Health and
Human Servs., 396 F.3d 1265, 1270 (D.C. Cir. 2005)), and where “[aJn alternative . . .
provides for de novo district-court review of the challenged agency action.” Id. Because
the APA requires only an “adequate” alternative, 5 U.S.C. § 704, the purported
alternative remedy need not provide relief identical to relief under the APA’ in order to
have preclusive effect.” Citizens for Responsibility and Ethics in Washington, 846 F.3d
at 1245 (quoting Garcia, 563 F.3d at 522).
Defendant contends Section 360(a) of the INA, see 8 U.S.C. § 1503, provides such
an adequate alternative remedy, preventing review of plaintiff's claims under the APA.
Def.’s MTD at 4—S. Plaintiff counters that Section 360(a) cannot provide an adequate
alternative remedy because the sole relief provided there—a declaration that Ali is a U.S.
national—is not the relief he seeks here. See Pl.’s Opp. at 4. Indeed, Ali disclaims even
alleging that he is a U.S. national. Jd. (stating that Ali “need not — and does not — make
this claim here”). Instead, Ali characterizes his complaint as making four arguments,
none of which, in his view, requires plaintiff “to even assert that he is a U.S. national in
order to prevail.” Jd. at 3.
First, Ali claims that “the revocation of his passport . . . was arbitrary because it
did not provide a rational explanation for departing from the [State] Department’s prior
three (3) decisions finding [] Ali to be a U.S. national.” Jd. Second, he asserts “the
revocation was not in accordance with law because it was contrary to the presumption of
regularity.” Jd. Third, Ali claims that “even if [he] is not a U.S. national, still the
revocation was not in accordance with law because the [State] Department was barred by
laches from revoking [] Ali’s passport when he has been grievously prejudiced by its over
28 year delay in doing so.” Jd. Finally, plaintiff argues that “even if [] Ali is not a US.
national, the revocation was not in accordance with law because the [State] Department is
equitably estopped from revoking his passport due to its own erroneous issuance of it
when its wrongful approval has brought about an egregiously unfair result to [] Ali and
his family.” Id.
Unfortunately for plaintiff, I agree with defendant that no matter how it is framed,
the complaint fails to state a viable claim under the APA. How so? To the extent Ali
argues he is a U.S. national but the revocation of his passport was arbitrary or unlawful, I
agree with defendant that Section 306(a) of the INA provides an adequate alternative
remedy. Section 360(a) outlines the process by which an individual can receive judicial
review of an agency’s decision to deny them “a right or privilege as a national of the
United States . . . [on] the ground that [the individual] is not a national of the United
States.” 8 U.S.C. § 1503; Xia v. Tillerson, 865 F.3d 643, 655 (D.C. Cir. 2017) ([8
U.S.C. § 1503] provides for judicial review of denial of any ‘right or privilege’ of
citizenship, including invalidations of passports or naturalization certificates.”). If, as is
the case here, an aggrieved party is “within the United States,” that individual may seek a
‘judgment declaring him to be a national of the United States” from a federal district’
court under Section 360(a). 8 U.S.C. § 1503(a). Such actions, however, may not be
brought in any federal court. They must be filed “‘in the district court of the United States
for the district in which such person resides.” Jd.
As the numerous courts that have addressed this issue have found, Section 306(a)
provides an adequate alternative remedy where a claimant seeks review of the State
Department’s determination that he or she is not a U.S. national. See Xia, 865 F.3d at
655 (stating 8 U.S.C. § 1503 “provides plaintiffs an adequate avenue to assert their
citizenship claims”); Alsaidi, 292 F. Supp. 3d at 326 (dismissing plaintiff's APA claim
regarding denial of her passport renewal because § 1503 provides an adequate alternative
remedy); Hassan v. Holder, 793 F. Supp. 2d 440, 445 (D.D.C. 2011) (same with respect
to passport revocation); see also Villarreal v. Horn, 203 F. Supp. 3d 765, 773 (S.D. Tex.
2016) (“[C]ourts have repeatedly dismissed APA claims challenging the denial of a
passport application or a passport revocation on grounds that the holder is not a U:S.
national, reasoning that .. . a judicial declaration of citizenship and entitlement to a
passport [] may be directly sought through 8 U.S.C. § 1503(a).”).
Plaintiff argues that § 1503(a) is inadequate because it would require “a
substantially higher burden of proof.” Pl.’s Opp. at 3. But our Circuit Court has rejected
this proposition, finding that “[t]he threshold showing required of a section 1503 plaintiff
is minimal.” Xia, 865 F.3d at 656 (noting that “[p]resenting proof of a. . . passport—
even if already administratively cancelled—would seem to satisfy that prima facie
requirement”). Thus, to the extent plaintiff's complaint is premised on the theory that the
State Department’s determination was erroneous, plaintiff has an adequate alternative
remedy in § 1503(a) and cannot proceed under the APA.” Jd.; Alsaidi, 292 F. Supp. 3d at
326-27.
In an attempt to avoid the preclusive effect of § 1503(a), Ali argues in the
alternative that he is permitted to proceed with this suit under the APA regardless of
? The Court appreciates that the State Department’s conduct in recognizing Ali as a U.S. national for
almost thirty years, only to reverse that determination with minimal explanation, must be exceedingly
frustrating. But plaintiff's recourse nonetheless lies under Section 360(a) of the INA, not the APA. See
Hassan, 793 F. Supp. 2d at 443 (noting that although multiple inconsistent decisions from the government
over a span of many years created an understandable frustration, no action was cognizable under the APA
with respect to the revocation of plaintiff's passport),
7
whether he is, in fact, a U.S. national. See Pl.’s Opp. at 3 (invoking this Court’s equitable
powers under the doctrines of laches and estoppel). Under this theory, plaintiff would
have the Court set aside defendant’s revocation of Ali’s passport even though he fails to
allege that he meets the necessary precondition for a U.S. passport—being a U.S.
national, 22 C.F.R. § 51.2(a). See Pl.’s Mot. at 4—5 n.2 (stating that Ali does not “claim
unequivocally” that he is a U.S. national, but “maintains that .. . even if he is not a U.S.
national, the [State] Department should be estopped from denying it”). Unfortunately for
plaintiff, this I cannot do.
The power to issue passports rests solely in the Secretary of State or a designee.
22 U.S.C. § 211a (providing that the Secretary possesses the authority to “grant and issue
passports .. . and no other person shall grant, issue, or verify such passports”). Passports
may only be issued to U.S. nationals, see 22 C.F.R. § 51.2(a), and the State Department
may revoke those passports when it determines that the bearer of the passport is not a
U.S. national. 22 C.F.R. § 51.62(b); see also 22 U.S.C. § 212 (“No passport shall be
granted or issued to or verified for any other persons than those owing allegiance,
whether citizens or not, to the United States.”’).
The Court’s power to craft equitable remedies, while broad, does not permit it to
interfere with this statutory and regulatory scheme. See INS v. Pangilinan, 486 U.S. 875,
883-84 (1988) (holding courts’ equitable authority does not extend to crafting remedies
contrary to Congressional statutes). Especially in the immigration context, the Court may
not rely on the doctrine of laches or the doctrine of equitable estoppel to override public
policy as established by Congress. See id. at 885 (“Neither by application of the doctrine
of estoppel, nor by invocation of equitable powers, nor by any other means does a court
have the power to confer citizenship in violation of [statutory limitations].”).
Congress has established that only U.S. nationals may receive a passport. See 22
U.S.C. § 212. It has also provided, through 8 U.S.C. § 1503(a), a mechanism to
challenge agency determinations that an individual is not a U.S. national. But where a
_ plaintiff refuses to pursue this avenue of relief, courts may not grant through alternative
equitable means what is effectively the same result—a determination that the State
Department must treat plaintiff as if he is a U.S. national. See Pangilinan, 486 U.S. at
883-84.
Accordingly, no matter how plaintiff frames his complaint, it fails to state a claim
under the APA.
CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s motion to dismiss and
DISMISSES the action in its entirety. An Order consistent with this decision
accompanies this Memorandum Opinion.
RICHARD J. IAEON
United States District Judge