Morris v. Pompeo

ORDER

Pending before the Court are the Motion to Dismiss, (ECF No. 25), and the Motion for Summary Judgment, (ECF No. 26), filed by Defendant Michael L. Pompeo, United States Secretary of State ("Defendant"). Plaintiff Oliver Bruce Morris ("Plaintiff") filed a Response, (ECF No. 28), and Defendant filed a Reply, (ECF No. 30).

Also pending before the Court is Plaintiff's Motion for Summary Judgment, (ECF No. 27). Defendant filed a Response, (ECF No. 29), and Plaintiff filed a Reply, (ECF No. 31).

For the reasons discussed below, the Court GRANTS in part and DENIES in part Defendant's Motion to Dismiss. The Court GRANTS in part and DENIES in part Plaintiff's Motion for Summary Judgment. The Court DENIES as moot Defendant's Motion for Summary Judgment.

I. BACKGROUND

This case arises from Defendant's denial of Plaintiff's passport application because of Plaintiff's failure to submit a doctor's certification of his gender. (See generally Am. Compl., ECF No. 13). Plaintiff, previously named Chanesse Olivia Morris, was born in Modesto, California in 1993; his birth certificate states his birth sex as female. (Am. Compl. ¶ 15); (Birth Certificate, AR 4). Plaintiff is a transgender male who began identifying as male in January of 2015, and he legally changed his name to Oliver Bruce Morris on August 21, 2018. (Am.

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Compl. ¶ 16); (Court Ordered Name Change, AR 5-6). Plaintiff alleges that he has health insurance under a policy with Anthem Health Insurance, but the policy does not cover gender reassignment surgery. (Am. Compl. ¶¶ 17-18). As an alternative, Plaintiff alleges that he receives hormone therapy treatment provided by a nurse practitioner, which his health insurance covers; however, he allegedly cannot afford additional gender transition treatment. (Id. ¶¶ 17-18, 20, 23).

Plaintiff applied for a 10-year United States Passport on or about October 13, 2018. (See Am. Compl. ¶ 19); (Passport Application, AR 1-6). On the application's checkbox for "Sex," Plaintiff checked the "M" box, indicating male. (Id. at 1). Plaintiff included three identity documents in his application: a Nevada driver's license, which indicates his sex is male; an original copy of his birth certificate, which indicates his sex is female; and a court-ordered name change, indicating that he legally changed his name from "Chanesse Olivia Morris" to "Oliver Bruce Morris" on June 27, 2018. (Id. at 3-6).

U.S. citizens generally must have a passport to travel internationally. 8 U.S.C. § 1185(b). Passports both serve as an official travel identification document and a diplomatic "letter of introduction in which the issuing sovereign vouches for the bearer and requests other sovereigns to aid the bearer." Haig v. Agee, 453 U.S. 280, 292 (1981); see also 22 C.F.R. §51.1 (defining "Passport"). The Executive Branch has broad authority to regulate the issuance of passports, which the President has delegated to the Secretary of State. See Zemel v. Rusk, 381 U.S. 1, 10 (1965); 22 U.S.C. § 211a; Exec. Order No. 11295, 31 Fed. Reg. 10,603 (Aug. 9, 1966); 22 C.F.R. §§ 51.1-51.74.

Before a U.S. passport can be issued, a citizen seeking a first-time passport or changing a gender on an existing passport must complete the four-page Application for a U.S. Passport, Form DS-11 (06-2016) ("Application"). The applicant "shall subscribe to and submit a written application which shall contain a true recital of each and every matter of fact which may be

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required by law or by any rules authorized by law to be stated as a prerequisite to the issuance of any such passport." 22 U.S.C. § 213. Each applicant "has the burden of establishing his or her identity . . . . by the submission of a previous passport, other state, local, or federal government officially issued identification with photograph, or other identifying evidence which may include an affidavit of an identifying witness." 22 C.F.R. § 51.23(a)-(b). The State Department may also require "additional evidence of identity as it deems necessary." 22 C.F.R. § 51.23(c). The many facets of "identity" included within the Application comprise one's: name, date of birth, sex, place of birth, social security number, parents' names and places of birth, marital status, employment, height, hair color, and eye color. (See Passport Application, AR 1-3).

Relevant to this case is the sex identifier on the Application, which, according to the State Department's Foreign Affairs Manual ("FAM"), also describes the applicant's gender.¹ See FAM 403.3-2. If an applicant requests a gender designation different than the sex of his birth, the applicant must submit a doctor's certification that indicates, "the applicant has had appropriate clinical treatment for gender transition to the new gender of either male or female." 8 FAM 403.3-2(A)(b); 8 FAM 403.3-2(B)(d)(5). For applicants "who have just begun and may be in the initial stages of the gender transition process, a two year limited validity passport" will be available. 8 FAM 403.3-2(B)(f).

On October 24, 2018, the State Department sent a letter in response to Plaintiff's passport application, requesting that Plaintiff verify his sex. (October 24, 2018 Letter, AR 7-8). The letter explained, "[i]n order to issue you a passport card reflecting a sex different from the

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one on some or all of your citizenship and/or identity evidence, please send us a signed original statement on office letterhead from your attending medical physician." (Id.). The letter enumerated the information Plaintiff's physician would have to certify under penalty of perjury, including, "[l]anguage stating that you have had appropriate clinical treatment for transition to the new sex[.]" (Id. at 7). On January 24, 2019, the State Department sent another letter, labeled "FINAL REQUEST," seeking the same certification. (January 24, 2019 Letter, AR 9-10). Plaintiff, through counsel, replied to the letter by explaining he would not provide the requested certification because he could not afford gender transition treatment, and the requirement violated his constitutional rights. (Nevada Legal Services Letter, AR 11). On March 26, 2019, the State Department sent Plaintiff another "FINAL REQUEST," again reiterating its certification requirement. (March 26, 2019 Letter, AR 12-13). On May 21, 2019, the State Department sent Plaintiff a letter denying his passport application because of his failure to provide a doctor's certification of his sex. (Denial Letter, AR 28).

On April 5, 2019, Plaintiff commenced this action by filing the Complaint against Defendant. (See Compl., ECF No. 1). Plaintiff later amended his Complaint as a matter of right. (See Am. Compl., ECF No. 13); see also Fed. R. Civ. P. 15(a)(1)(B). The Amended Complaint alleges that Defendant denied Plaintiff's passport application in violation of the Administrative Procedure Act ("APA") and Plaintiff's Fifth Amendment equal protection and due process rights. (See generally Am. Compl., ECF No. 13). On November 12, 2019, Defendant moved for summary judgment on Plaintiff's APA claims and moved to dismiss Plaintiff's Fifth Amendment claims. (See Def.'s Mot. Summ. J. ("MSJ"), ECF No. 26); (Mot. Dismiss ("MTD"), ECF No. 25). Plaintiff seeks summary judgment on each of the claims raised in the Amended Complaint. (Pl.'s MSJ, ECF No. 27).

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II. LEGAL STANDARD

A. 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. See N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.3d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a claim, the Court will take all material allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

The Court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation is plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).

"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion . . . However, material which is properly submitted as part of the complaint may be considered on a motion to dismiss." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted). Similarly, "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss" without converting the motion to dismiss into a motion for summary judgement. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Under Federal Rule of Evidence 201, a court may take judicial notice of "matters of public record." Mack v. S. Bay

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Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary judgement. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).

If the court grants a motion to dismiss for failure...