L'Association des Ams. Accidentels v. U.S. Dep't of State

633 F.Supp.3d 74

L'ASSOCIATION DES AMERICAINS ACCIDENTELS, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF STATE, et al., Defendants.

Case No. 1:20-cv-02933 (TNM)

United States District Court, District of Columbia

Signed September 28, 2022

Lawrence Marc Zell, Zell, Aron & Co., Israel, for Plaintiffs.

Laurel H. Lum, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

TREVOR N. McFADDEN, United States District Judge

During the COVID-19 pandemic, the Department of State suspended or curtailed a wide variety of consular services previously available abroad. Among those services was the process for an American citizen to formally renounce his or her citizenship. L'Association des Américains Accidentels and some of its members sued (collectively, the Association), arguing the Department's suspension and delay of renunciation services violated the Administrative Procedure Act (APA) and the Fifth Amendment's Due Process Clause. The Government now moves for dismissal and summary judgment on several grounds. The Court will grant that motion.

The Association's claims about the suspension of renunciation services are moot because the Department has resumed providing those services at its posts. Those claims must be dismissed. The Government is entitled to summary judgment on the Association's remaining APA claim because the Department's "waitlist" policy has not unreasonably delayed renunciation services. The remaining Fifth Amendment claim must be dismissed because the Association has not pled facts suggesting it is entitled to relief.

I.

The facts underlying this case are "largely undisputed," Opp. 7, ECF No. 19, so the Court only offers limited background here.

The Immigration and Nationality Act (INA) allows Americans to abandon their citizenship in limited circumstances. See 8 U.S.C. § 1481(a)(1)-(7). Relevant here, an individual may relinquish his nationality by voluntarily "making a formal renunciation of nationality before a diplomatic or consular officer of the United States." Id. § 1481(a)(5); see also id. § 1501 (authorizing consular officers to administer the oath of renunciation).

At the start of the COVID-19 pandemic, the Department of State suspended almost all routine consular services, including loss-of-nationality services. See Decl. of Douglass Benning, Principal Dep. Asst. Sec. of State for Consular Aff. (Benning Decl.) ¶¶ 4, 14-17, ECF No. 17-2. Consular posts have faced in-person capacity limitations, staff illnesses, in-country restrictions on public movements, and budgetary constraints due to losing fee-for-service revenue. Id. ¶¶ 15-16, 18.

Those resource constraints compounded in late 2021, as "many posts were [ ] called upon to assist U.S. citizens evacuating Afghanistan, process immigrant visas for Afghans on an expedited basis, and respond to a high volume of inquiries from Congress." Id. ¶ 14. Consular officers are also playing an integral role in responding to the Russia-Ukraine war and its attendant refugee crisis. Id. ¶ 16-17. The Department has now resumed renunciation services at those posts that previously offered them, but applicants face significant waits as consular officers work through backlogs. See, e.g., Supp. Benning Decl. ¶¶ 3-8, ECF No. 21-1 (waitlist for renunciation services at Post Frankfurt is ~700 applicants; Post Paris ~135 applicants; Post Marseille ~62 applicants; Post Singapore ~120 applicants).

Individual Plaintiffs here are individuals who applied for, but have not yet received, certificates of loss of nationality (CLN) under § 1481(a)(5).¹ They are joined by L'Association des Americains Accidentels, which seeks to protect the interests of American citizens living abroad. They sued the Department of State, Secretary of State Antony Blinken, and Assistant Secretary of State for Consular Affairs Rena Bitter (collectively, the Government). The Association alleges the Department's suspension of renunciation services and later delays violate the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq., and the Fifth Amendment's Due Process Clause, U.S. Const. amend. V. See Amend. Compl., ECF No. 12. The Government now moves to dismiss in part and for summary judgment in part. See Def.'s Mot., ECF No. 17. The Association opposes that motion and cross-moves for summary judgment. See Opp., ECF No. 19. The motions are now ripe for resolution.

II.

A complaint must contain "a short and plain statement of the grounds for the court's jurisdiction," as well as a "statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(1), (2). A defendant may move to dismiss for failure to satisfy either of these requirements. See id. 12(b)(1), (6). When a defendant moves to dismiss for lack of subject matter jurisdiction, the court must presume that "a cause lies outside [its] limited jurisdiction," Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994), and the plaintiff bears the burden of overcoming that presumption, see Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

While the Court accepts factual allegations in the complaint as true, those allegations "will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Nepal v. U.S. Dep't of State, 602 F. Supp. 3d 115, 123 (D.D.C. May 12, 2022). And the Court "may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens Pharma., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

A court may grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Factual disputes are genuine if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). And a fact is "material" for purposes of Rule 56 if it affects the outcome of the case under the substantive governing law. See id. In assessing whether a summary judgment movant has carried this burden, the Court must "draw all reasonable inferences in favor of the nonmoving party." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

III.

The Court starts, as it must, with jurisdiction. See Ex Parte McCardle, 74 U.S. 7 Wall. 506, 514, 19 L.Ed. 264 (1868) ("Without jurisdiction the court cannot proceed at all in any cause.").

To press his claims in federal court, a plaintiff must establish the "irreducible constitutional minimum" of standing: that he has suffered (1) an injury in fact (2) caused by, and traceable to, the defendant's allegedly unlawful conduct and (3) that a favorable judicial decision is "likely" to redress his injury. Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Because "standing is not dispensed in gross," a "plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought." Davis v. FEC, 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) (cleaned up).

Plaintiffs must also "maintain a personal interest in the dispute" throughout "all stages of litigation." Uzuegbunam v. Preczewski, — U.S. —, 141 S. Ct. 792, 796, 209 L.Ed.2d 94 (2021). Standing "assesses whether that interest exists at the outset, while the doctrine of mootness considers whether it exists throughout the proceedings." Id.; see also Henry Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973) (explaining that mootness is "the doctrine of standing set in a time frame"). If a "court finds that it can no longer provide a plaintiff with any effectual relief, the case is generally moot." Uzuegbunam, 141 S. Ct. at 796. This requirement, like standing, applies to every form of relief a litigant seeks. See, e.g., In re Smith, 114 F.3d 1247, 1249 (D.C. Cir. 1997) (holding that a request for habeas relief was moot, but that claims for injunctive, declaratory, and monetary relief were not).

Here, the Association has standing to sue on behalf of its members, but a subset of its claims are moot and must be dismissed.

A.

The Government's primary jurisdictional argument is that the Association does not have "associational standing" to sue in its members' behalf. To establish associational standing, an entity must show: (1) that its members would have standing to sue in their own right, (2) that it seeks to protect interests germane to the organization's purpose, and (3) that neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. See Nat'l Assoc. of Home Builders v. EPA, 667 F.3d 6, 12 (D.C. Cir. 2011).

The Government disputes only the first prong—whether the Association's members would have standing to sue. It says the Association has not alleged any of the named plaintiffs are members of the organization or that the delay of renunciation services injured its members. See Def.'s Mot. 13. The record says otherwise. In a declaration appended to the Association's Opposition, Plaintiff Sofianne Thoulon says she is a member of the Association, has waited "well over a year" to complete the renunciation process, and has suffered financial injury because of the delay in renouncing her citizenship. See Thoulon Decl. ¶¶ 6-13, 15, 21, ECF No. 19-2; cf. Jerome Stevens Pharma., 402 F.3d at 1253 (noting courts "may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction"). Those facts are enough to establish Thoulon has standing to sue in her own right, and the Government has offered no contrary evidence.²

The Government also argues the Court lacks jurisdiction to consider the APA claims because the Department did not violate a "clear duty to act" in suspending or delaying renunciation...