Fitisemanu v. United States

20 F.4th 1325 (Mem)

John FITISEMANU; Pale Tuli; Rosavita Tuli; Southern Utah Pacific Islander Coalition, Plaintiffs - Appellees,

v.UNITED STATES of America; U.S. Department of State; Antony Blinken, in his official capacity as Secretary of the U.S. Department of State; Ian G. Brownlee, in his official capacity as Assistant Secretary of State for Consular Affairs, Defendants - Appellants,andThe Honorable Aumua Amata; American Samoa Government, Intervenor Defendants.

Virgin Islands Bar Association; American Civil Liberties Union; ACLU of Utah; Linda S. Bosniak; Kristin Collins; Stella Burch Elias; Sam Erman; Torrie Hester; Polly J. Price; Michael Ramsey; Nathan Perl-Rosenthal; Lucy E. Salyer; Katherine R. Unterman; Charles R. Venator-Santiago; Samoan Federation of America, Inc. ; Rafael Cox Alomar; J. Andrew Kent; Gary S. Lawson; Sanford V. Levinson; Christina Duffy Ponsa-Kraus; Stephen I. Vladeck; Congresswoman Stacey Plaskett; Congressman Michael F.Q. San Nicolas; Carl Gutierrez; Felix P. Camacho; Juan Babauta; Dr. Pedro Rossello; Anibal Acevedo Vila; Luis Fortuno; John de Jongh; Kenneth Mapp; Donna M. Christian-Christensen; Amanda Frost; Linda K. Kerber; D. Carolina Nunez; Rogers M. Smith, Amici Curiae.

John Fitisemanu; Pale Tuli; Rosavita Tuli; Southern Utah Pacific Islander Coalition, Plaintiffs - Appellees,

v.United States of America; U.S. Department of State; Antony Blinken, in his official capacity as Secretary of the U.S. Department of State; Ian G. Brownlee, in his official capacity as Assistant Secretary of State for Consular Affairs, Defendants,andThe Honorable Aumua Amata; American Samoa Government, Intervenor Defendants - Appellants.

Virgin Islands Bar Association; American Civil Liberties Union; ACLU of Utah; Linda S. Bosniak; Kristin Collins; Stella Burch Elias; Sam Erman; Torrie Hester; Polly J. Price; Michael Ramsey; Nathan Perl-Rosenthal; Lucy E. Salyer; Katherine R. Unterman; Charles R. Venator-Santiago; Samoan Federation of America, Inc. ; Rafael Cox Alomar; J. Andrew Kent; Gary S. Lawson; Sanford V. Levinson; Christina Duffy Ponsa-Kraus; Stephen I. Vladeck; Congresswoman Stacey Plaskett; Congressman Michael F.Q. San Nicolas; Carl Gutierrez; Felix P. Camacho; Juan Babauta; Dr. Pedro Rossello; Anibal Acevedo Vila; Luis Fortuno; John de Jongh; Kenneth Mapp; Donna M. Christian-Christensen; Amanda Frost; Linda K. Kerber; D. Carolina Nunez; Rogers M. Smith, Amici Curiae.

No. 20-4017

No. 20-4019

United States Court of Appeals, Tenth Circuit.

FILED December 27, 2021

ORDER

These matters are before the court on Plaintiffs-Appellees' Petition for Rehearing En Banc ("Petition"). We also have responses from Defendants-Appellants and Intervenor Defendants-Appellants.

The Petition and responses were transmitted to all non-recused judges of the court who are in regular active service. A poll was called and did not carry. See Fed. R. App. P. 35(a) (en banc consideration requires the approval of a majority of the circuit judges who are in regular active service and who are not disqualified). Accordingly, the Petition is DENIED.

Judge Bacharach and Judge Moritz would grant rehearing en banc. Judge Bacharach has prepared the attached written dissent from the denial of rehearing en banc, which is joined by Judge Moritz.

All pending motions for leave to file amici curiae briefs are granted. The briefs attached to those motions will be shown as filed as of the date of this order.

BACHARACH, J., dissenting from the denial of en banc consideration

This case involves a discrete question: Does the Fourteenth Amendment's Citizenship Clause extend to individuals born in American Samoa? The individual plaintiffs—John Fitisemanu, Pale Tuli, and Rosavita Tuli—say yes : having been born in American Samoa, they allege birth "in the United States." U.S. Const. amend. XIV, § 1, cl. 1. The defendants—the United States, the American Samoa government, and the Honorable Aumua Amata—say no : they contend that unincorporated territories, including American Samoa, are not "in the United States."

A divided panel reversed summary judgment for the plaintiffs without determining the meaning of the constitutional text. Instead, the panel majority characterizes the constitutional text as ambiguous and rests on other grounds. One panel member (Judge Lucero) relies on the Insular Cases. Another panel member (Chief Judge Tymkovich) relies on a congressional practice that didn't begin until roughly a half-century after ratification of the Citizenship Clause.

Both approaches skirt our obligation to determine the meaning of the constitutional language. Because of the exceptional importance of this obligation and the issue of citizenship, we should have granted the plaintiffs' request for en banc consideration.

1. The issue is exceptionally important.

We rarely convene en banc, but do so for questions of exceptional importance. 10th Cir. R. 35.1(A). In my view, the issue of citizenship for individuals born in American Samoa is exceptionally important.

The right of citizenship is precious to every U.S. citizen, something that the Fourteenth Amendment has removed from Congress's control. See Afroyim v. Rusk , 387 U.S. 253, 263, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967) (stating that the framers of the Fourteenth Amendment "wanted to put citizenship beyond the power of any governmental unit to destroy"). That precious right is being denied to those born in American Samoa.

Although American Samoa ceded itself to the United States over a century ago, individuals born there have never obtained recognition as U.S. citizens. So if American Samoans are not naturalized, they cannot enjoy any of the plethora of rights that we enjoy as citizens. For over 120 years, we've denied these rights to American Samoans.

This issue also affects individuals born in the United States' other territories, including natives of Puerto Rico born in the last 120+ years, natives of Guam born in the last 70+ years, natives of the Northern Mariana Islands born in the last 40+ years, and natives of the Virgin Islands born in the last 100+ years. Unlike American Samoans, individuals born in these territories enjoy statutory citizenship; but they are treated as citizens only at the whim of Congress.

Few judicial tasks are more important than deciding who are U.S. citizens and who aren't. Our method of answering this question is just as important. To answer that question, we must unravel the meaning of the Citizenship Clause. Unlike many constitutional provisions, the Citizenship Clause expressly defines its geographic scope, stating that the right (citizenship) extends to everyone born "in the United States." So the parties and the panel agree that our threshold task is to define the scope of the geographic term "in the United States."

2. U.S. territories, such as American Samoa, lie "in the United States."

To interpret this term, we have various interpretive tools at our disposal. The Citizenship Clause was ratified in 1868, so different jurists might consider contemporary

• judicial opinions,

• censuses,

• maps,

• dictionary definitions,

• legislative statements, and

• statutes.

All of these sources treated territories like American Samoa as lying "in the United States."

a. Contemporary judicial opinions included the territories as part of the United States.

To discern what ordinary Americans meant in 1866 to 1868 by the phrase "in the United States," we can consider contemporary judicial opinions. In the nineteenth century, "[c]ourts ... commonly referred to U.S. territories as ‘in’ the United States." Michael D. Ramsey, Originalism and Birthright Citizenship , 109 Geo. L.J. 405, 426 (2020).

For example, in the early part of the century, the Supreme Court observed that

• "the United States" "is the name given to our great republic, which is composed of States and territories" and

• "the territory west of the Missouri [was] not less within the United States ... than Maryland or Pennsylvania."

Loughborough v. Blake , 18 U.S. (5 Wheat.) 317, 319, 5 L.Ed. 98 (1820) (Marshall, C.J.).

Justice Story, riding Circuit, also explained that "[a] citizen of one of our territories is a citizen of the United States." Picquet v. Swan , 19 F. Cas. 609, 616 (C.C.D. Mass. 1828).

About 25 years later, the Court considered whether U.S. tariffs had been properly applied to products coming from outside the United States into the Territory of California. Cross v. Harrison , 57 U.S. (16 How.) 164, 181, 197, 14 L.Ed. 889 (1853). The Court answered yes , considering the Territory of California as "part of the United States." Id. at 197–98.

And in 1867, the Supreme Court observed that U.S. citizens included inhabitants of "the most remote States or territories." Crandall v. State of Nevada , 73 U.S. (6 Wall.) 35, 48–49, 18 L.Ed. 745 (1867) (quoting Smith v. Turner (The Passenger Cases ), 48 U.S. (7 How.) 283, 492, 12 L.Ed. 702 (1849) (Taney, C.J., dissenting)).¹

The American Samoan government points out that in Fleming v. Page , the Supreme Court held that Tampico (a port in Tamaulipas, Mexico) was not "in the United States" even though the U.S. military had occupied the port during the Mexican-American War. 50 U.S. 9 How. 603, 614–16, 13 L.Ed. 276 (1850). But the Court clarified that even though other nations had to regard Tampico as U.S. territory, the port was not "territory included in our established boundaries" without a formal cession or annexation. Id. So the opinion doesn't address whether territories of the United States are "in the United States."

b. Contemporary dictionaries, maps, atlases, and censuses included the territories as part of the United States.

We may also consider contemporary dictionaries, maps, atlases, and censuses. See NLRB v. Noel Canning , 573 U.S. 513, 527, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014) (looking to contemporary dictionaries to interpret the Recess Appointments Clause); New Jersey v. New York , 523 U.S. 767, 797–803, 810, 118 S.Ct. 1726, 140 L.Ed.2d 993 (1998) (looking to historical censuses and...