Quaid v. Kerry , 161 F. Supp. 3d 70 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RANDY QUAID AND EVGENIA QUAID, )
)
Plaintiffs, )
)
v. ) Civil Case No. 14-2116 (RJL)
)
JOHN F. KERRY, in his capacity as )
Secretary of State, and, U.S. DEPARTMENT ) F I l- E D
OF STATE, )
) Fi-:B 1 7 ,2015
Def¢ndanfs- ) cierk, u.s. comer a. sanxrupicy
h courts mr me olsrrm of columbia
MEMORA UM OPINION
(February 2016) [Dkt. #9]
-
Plaintiffs, Randy and Evgenia Quaid ("the Quaids" or "plaintiffs"), brought this case
against defendants John F. Kerry, in his capacity as Secretary of State, and the United
States Department of State. Plaintiffs contend that by revoking their passports, defendants
illegally deprived them of their rights to identify as United States citizens and to possess
documentation of their citizenship. Presently before the Court is defendants’ motion to
dismiss this action pursuant to Federal Rules of Civil Procedure l2(b)(l) and l2(b)(6),
arguing both that the Court lacks jurisdiction and that plaintiffs failed to state a cognizable
claim of deprivation of any constitutional right or privilege. Upon consideration of the
parties’ pleadings and the relevant lavv, the Court GRANTS defendants’ motion.
BACKGROUND
The Secretary of State ("Secretary") and his designees at the United States
Department of State ("State Department") have the authority to grant and issue passports
to United States citizens. 22 U.S.C. § Zlla. Pursuant to this authority, the Secretary
l
identified in regulations the circumstances in which passports may be denied or revoked.
See genera!ly 22 C.F.R. § 5l.60-.62. Of relevance here are subsections 5l.60(b)(9) and
51 .62(a)(l), which provide that the State Department may revoke or limit a passport when
it "determines or is informed by competent authority that" the bearer is "the subject of an
outstanding state or local warrant of arrest for a felony." la’. §§ 5l.60(b)(9), 5 l .62(a)(l).
The Quaids are United States citizens. Compl. fl 8 [Dkt. #l]. On or around
December 12, 2013, while plaintiffs were in Canada, the State Department revoked their
passports on the grounds that plaintiffs were subjects of felony arrest warrants issued by a
county court in Santa Barbara, California. Compl. jl{l 10-ll; Pls.’ Mem. 3-4 [Dkt. #10].
The State Department later confiscated plaintiffs’ passports.' Compl. jj 13; Pls.’ Mem.
8-9. Plaintiffs do not contest that they were indeed the subjects of felony arrest warrants
at the time, and, therefore, they do not dispute the grounds for the revocation.z Instead,
plaintiffs claim the revocation was unconstitutional because the Fourteenth Amendment
secures the absolute right of United States citizens to possess their passports as proof of
their citizenship. Compl. w l3, l6, 24. They argue that without a passport, an American
citizen is deprived of his or her privilege to "demand the care and protection of the Federal
government over his life, liberty, and property when on the high seas or within the
l For brevity’s sake, the Court will use the term "revocation" and its derivatives to refer to both the
revocation and the subsequent physical confiscation of plaintiffs’ passports.
2 In their memorandum in opposition to defendant’s motion to dismiss, plaintiffs question the validity of
the arrest warrants and suggest defendants’ acted improperly by failing to conduct an independent
investigation into the grounds for the warrants Pls.’ Mem. 3-4. But the complaint does not allege the
warrants were invalid or that defendants have a duty to assure themselves a warrant was properly issued
before revoking the subject’s passport "It is axiomatic that a complaint may not be amended by the briefs
in opposition to a motion to dismiss." Arbz`lraj'e Casa de Cambio, S.A. de C. I/'. v. Unz`ledStates Postal Serv.,
297 F,Supp.Zd l65, 170 (D.D.C. 2003). The Court therefore cannot and does not consider these arguments
2
jurisdiction of a foreign government," a privilege secured by the Fourteenth Amendment’s
Privi1eges and immunities Clause. Pls.’ Mem. 6 (quoting Slaughter-House Cases, 83 U.S.
36, 79 (1872)). They further claim revoking a passport violates a citizen’s right to remain
a citizen under the Fourteenth Amendment’s Citizenship Clause. Compl. 1111 22-23.
Plaintiffs ask the Court, inter alia, to declare defendants’ actions unconstitutional and to
enjoin defendants to return their passports. Compl. 11 29(a), (c).
DISCUSSION
I. Jurisdicti0n
Defendants assert that sovereign immunity protects them from this suit, and they
move for dismissal for lack of subject-matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(l). Defs.’ Mem. 3 [Dkt. #9]. "Federal courts are courts of limited
jurisdiction. They possess only that power authorized by Constitution and statute."
Kokkonen v. Guarcz’z`an Life Ins. C0. ofAm., 511 U.S. 375, 377 (1994). Therefore, "[i]t is
to be presumed that a cause lies outside this limited jurisdiction," and "the burden of
establishing the contrary rests upon the party asserting jurisdiction." Ia’.
"Absent a Waiver, sovereign immunity shields the Federal Government and its
agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475 (1994); see also Z St,, Inc. v.
Koskz`nen, 44 F. Supp. 3d 48, 63 (D.D.C. 2014) ("The sovereign immunity doctrine applies
equally to the government itself and to a federal official sued in his official capacity.").
"Sovereign immunity is jurisdictional in nature," Meyer, 510 U.S. at 475, and the United
States’s consent to be sued is therefore a "prerequisite for jurisdiction," United States v.
Mz'tchell, 463 U.S. 206, 212 (1983). Faced with a motion to dismiss under Rule 12(b)(1),
3
"[t]he plaintiff bears the burden of establishing both the court’s statutory jurisdiction and
the government’s waiver of its sovereign immunity." Am. Roaa’ & Transp. Buz`lders Ass ’n
v. EPA, 865 F. Supp. 2d 72, 80 (D.D.C. 20l2). "A waiver of the Federal Government’s
sovereign immunity must be unequivocally expressed in statutory text, and will not be
implied." Lane v. Pena, 518 U.S. 187, 192 (l996) (internal citations omitted).
Plaintiffs allege violations of the Constitution, and "[t]ypically this Court would
have jurisdiction over such claims pursuant to 28 U.S.C. § 1331, which grants district
courts jurisdiction of all civil actions arising under the Constitution, laws, or treaties of
the United States."’ Xz'a v. Kerry, 73 F. Supp. 3d 33, 38 (D.D.C. 20l4). However,
defendants are a federal agency and a cabinet secretary sued in his official capacity, and
the United States’s sovereign immunity protects them from suit unless plaintiffs establish
the government has waived immunity. See Pz`ttman v. Lappin, 662 F. Supp. 2d 58, 60
(D.D.C. 2009) ("An official capacity suit against a federal official is one against the agency
itselfand, as such, one against the United States of America.") (citing Kentucky v. Graham,
473 U.S. 159 (l985)).
Plaintiffs assert the Administrative Procedure Act ("APA") supplies a basis for the
Court’s jurisdiction. Compl. ‘ll 6 (citing 5 U.S.C. §§ 701-08). Section 702 of the APA
states:
An action in a court of the United States seeking relief other than money
damages and stating a claim that an agency or an officer or employee thereof
acted or failed to act in an official capacity or under color of legal authority
shall not be dismissed nor relief therein be denied on the ground that it is
against the United States or that the United States is an indispensable party.
5 U.S.C. § 702. As plaintiffs argue and defendants concede, Pls.’ Mem. 2-3, Defs.’ Mem.
5 n.4, this section constitutes an explicit waiver of the federal government’s immunity
"with respect to suits for nonmonetary damages that allege wrongful action by an agency
or its officers or employees." Z St., 44 F. Supp. 3d at 63; see also Cohen v. Um`ted States,
650 F.3d 717, 723 (D.C. Cir. 2011) (construing Section 702 and finding "there is no doubt
Congress lifted the bar of sovereign immunity in actions not seeking money damages").
This is such a suit, and defendants are not entitled to immunity "to the extent that plaintiffs
seek only injunctive and declaratory relief." Xz`a, 73 F. Supp. 3d at 39.
Defendants contend that, despite its reliance on the APA for purposes of
jurisdiction, the complaint only raises claims under 42 U.S.C. § 1983 and not APA claims.
Defs.’ Mem. 4; Defs.’ Reply 1-2 [Dkt. #13]. Defendants reason that there is no express
waiver of sovereign immunity in Section 1983 itself "that would render a federal agency
such as the State Department subject to liability" and that they therefore retain immunity
from this suit. Defs.’ Mem. 4. But, "[t]he APA’s waiver of sovereign immunity applies to
any suit whether under the APA or not." Chamber of Commerce of U.S. v. Reich, 74 F.3d
1322, 1328 (D.C. Cir. 1996); see also Clark v. Lz`brary ofCong., 750 F.2d 89, 102 (D.C.
Cir. l984) ("[T]he 1976 amendments to § 702 of the Administrative Procedure Act,
5 U.S.C. § 702, eliminated the sovereign immunity defense in virtually all actions for non-
monetary relief against a U.S. agency or officer acting in an official capacity."). Subject
to exceptions not applicable here,3 the question of whether APA Section 702’s waiver
3 "The APA excludes from its waiver of sovereign immunity . . . claims for which an adequate remedy is
available elsewhere" and "claims seeking relief expressly or impliedly forbidden by another statute."
5
applies to a claim turns on the relief being sought and not on the cause of action under
which a claim is brought. See Cobell v. Babbz`tt, 52 F. Supp. 2d ll, 21 (D.D.C. 1999).
Because plaintiffs’ claims are for non-monetary relief, they fall within the terms of APA’s
waiver and defendants are not immune."
At the heart of defendants’ objection to the Section 1983 claims is their assertion
that Section l983 "does not apply to federal officials acting under color of federal law,"
Defs.’ Mem 4 (quoting Jackman v. United States, 604 F. Supp. 2d 84, 89 (D.D.C. 2009)),
and that it therefore "cannot be invoked as a vehicle for suit against" them. Defs.’ Mem. 4.
That objection is really an argument that plaintiffs’ complaint fails to identify a suitable
cause of action. Such an argument does not challenge the Court’s jurisdiction, because
"[j]urisdiction . . . is not defeated . . . by the possibility that the averments might fail to
state a cause of action on which petitioners could actually recover." Bell v. Hooa’, 327 U.S.
678, 682 (1946). Rather, "[w]hether the complaint states a cause of action on which relief
could be granted is a question of law and just as issues of fact it must be decided after and
Transohio Sav. Bank v. Dir., Oy§‘ice of Thrzft Supervisl`on, 967 F.2d 598, 607 (D.C. Cir. 1992). While
plaintiffs’ appeals to Section 1983 may be inartful or misguided pleading, they are not attempting to rely
on Section 1983 in order to circumvent some other remedial scheme or statutory limitation applicable to
the type of claims they bring_that is, claims for non-monetary relief alleging a federal agency or federal
official in his official capacity violated the Constitution.
4 Defendants cite Seltles v. U.S. Parole Comm ’n, 429 F.3d 1098, l l05 (D.C. Cir. 2005), in which our Circuit
Court considered whether sovereign immunity barred the plaintift`s Section l983 claim for declaratory and
injunctive relief. The Court found that it did and dismissed the claim, stating, "If the United States has not
consented to being sued under § l983, sovereign immunity requires the court to dismiss [the plaintiff’s]
claim for lack of jurisdiction." Id. Defendants argue this Court should likewise dismiss present plaintiffs’
Section l983 claims for want of jurisdiction. Defs.’ Mem. 4-5. However, the Setlles Court considered
only whether Section l983 or the National Capital Revitalization and Self~Government improvement Act
of l997, Pub. L. No. 105-33, §§ ll00()~l l723, lll Stat. 25l, 712~87 (1997), contains an express waiver
of the United States’s sovereign immunity. Ia'. at ll05-06. Unlike plaintiffs here, there is no indication
the plaintiff in Settles put forth APA Section 702 to meet his burden of demonstrating the necessary waiver
for his Section l983 claim.
not before the court has assumed jurisdiction over the controversy." Id. ; see also El Paso
Nafurczl Gas Co. v. Um`led States, 750 F.3d 863, 892 (D.C. Cir. 2014) (distinguishing the
sovereign immunity inquiry from the question of whether a plaintiff "identified a viable
cause of action and alleged facts sufficient to state a plausible claim under that cause of
action"); Xia, 73 F. Supp. 3d at 39 (rejecting the government’s argument that "because
plaintiffs have not adequately stated a cause of action under § 1983" the Court lacks
jurisdiction). Therefore, defendants’ argument should and will be considered under
Federal Rule of Civil Procedure l2(b)(6).
II. Failure to State a Claim
Having assured itself of its jurisdiction, the Court proceeds to consider whether
plaintiffs have stated a claim upon which relief may be granted. To survive a motion to
dismiss under Federal Rule of Civil Procedure l2(b)(6), a "complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face." Ashcrofz‘ v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). "A
claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged."
]d. The Court accepts all factual allegations as true and "construe[sj the complaint in a
light most favorable to the plaintiff." Wz`lson v. Fullwood, 772 F. Supp. 2d 246, 258
(D.D.C. 201 l). However, the Court need not accept a plaintiff s legal conclusions. Iqbal,
556 U.S. at 678.
Defendants argue that the complaint raises only Section 1983 claims, but on close
examination, it identifies another cause of action. The complaint cites the APA’S
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authorization of judicial review of "final agency action." Compl. fl 6 (quoting 5 U.S.C.
§704). Plaintiffs allege that the revocation of their passports was defendants’ "flnal
decision on the matter," and that plaintiffs have "exhausted all administrative remedies."
€6
Compl. jl l2. The Court reads these allegations as appeals to the APA’s generic cause of
action in favor of persons aggrieved by agency action." Ma’. Dep ’t of Human Res. v. Dep ’t
ofHealz‘h & Human Servs., 763 F.2d l44l, 1445 n.l (D.C. Cir. l985). Further, the request
for relief prays upon the Court to find defendants’ actions to be in violation of both "the
Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983." Compl.
il 29(a) (emphasis added). The Court therefore construes the complaint as raising claims
under the APA, separate and apart from the Section 1983 claims. Regardless of which
cause of action plaintiffs proceed under to bring their Fourteenth Amendment claims,
however, it is rudimentary that they must plausibly allege a violation of a right protected
by that Amendment. Because plaintiffs failed to do so, they have failed to state a claim
upon which relief may be granted.5
5 Plaintiffs also fail to state a Section 1983 claim because they did not allege in their complaint that
defendants were acting "under color of state law" when they revoked plaintiffs’ passports See Wesl v.
Atkz`ns, 487 U.S. 42, 48 (l988) ("To state a claim under § 1983, a plaintiff. . . must show that the alleged
deprivation was committed by a person acting under color of state law."); Harbury v. Hayden, 444 F. Supp.
2d l9, 42 (D,D.C. 2006) ("[I]f a federal official acts pursuant to his or her federal authority, it is not deemed
an act taken under color of state law."). Section l983 actions against federal officials may be permissible
where a state "cloaked [them] in some degree of authority" or where they "conspired or acted in concert
with state officials to deprive a person of his civil rights." Wz`llz`ams v. United Slates, 396 F.3d 412, 414
(D.C. Cir. 20()5) (quoting Case v. Mz`lewski, 327 F.3d 564, 567-68 (7th Cir. 2003)). However, plaintiffs
have neither identified a purported grant of authority from a state to defendants to revoke plaintiffs’
passports nor alleged that defendants conspired or acted jointly with state officials. lnstead, the complaint
avers defendants revoked plaintiffs’ passports "pursuant to 22 C.F.R. 5 l .62(a)(l) and 5 l .60(b)(9)."
Compl. 1[ l0. Under those regulations, issuance of a state or local felony arrest warrant provides cause for
the State Department to exercise its authority to revoke a passport, which derives from federal law. The
Court notes defendants do not argue they are not "persons" for purposes of Section l983.
8
Finally, plaintiffs maintain that the revocation of their passports violates the
Privileges and Immunities Clause and the Citizenship Clause of the Fourteenth
Amendment 6 Compl. M 23-24. Unfortunately for them, neither claim has an ounce of
merit to it! As to the Privileges and Immunities Clause, plaintiffs have not alleged a
violation of the Constitution because "the privileges and immunities clause of the
Fourteenth Amendment applies only to the states, and not to federal agencies." Robinson
v. Huerta, No. CV l4-045l, 2015 WL 501 141 l, at *9 (D.D.C. Aug. 24, 2015) (citing San
Francz'sco Arts & Athletz`cs, Inc. v. U.S. Olympz`c Commz`ttee, 483 U.S. 522, 543 n.2l
(1987)). This limitation is expressly stated in the Amendment itself, which reads: "No
Staze shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States." U.S. Const. amend XIV, § l (emphasis added). Defendants
cannot violate a provision of the Constitution that does not apply to them, and therefore
plaintiffs have not stated an actionable Fourteenth Amendment Privileges and Immunities
Clause claim.7
6 Plaintiffs make a passing reference to the Fifth Amendment in their memorandum in opposition to
defendants’ motion to dismiss. Pls.’ Mem. 3. The compiaint, however, does not once invoke the Fifth
Amendment. "[P]laintift[s] cannot amend [their] complaint de facto to survive a motion to dismiss by
asserting new claims for relief in [their] responsive pleadings.” Coll. Sports Council v. Gov ’tAccountabilz`ty
Oyj‘ice, 421 F. Supp. 2d 59, 7l n.l6 (D.D.C. 2006). The Court does not consider any Fifth Amendment
claims, as plaintiffs first mentioned the Fifth Amendment in their opposition. Further, the Court notes that
plaintiffs do not claim deprivations oftheir right to, or liberty interest in, intemational travel. The complaint
specifically distinguishes between a passport’s significance as a travel document and as evidence of United
States citizenship and states plaintiffs’ claims are related to the latter. Compl. 1111 18-24.
7 Even if plaintiffs had relied on a provision or authority that is applicable to the federal govemment and
that grants plaintiffs the rights they claim, the motion to dismiss would still be granted for failure to set
forth sufficient facts to make such a claim plausible. The complaint does not plausibly allege that passports
are the exclusive documentation by which one may prove his or her citizenship, and plaintiffs do not contend
to have been deprived of any other indicia of their citizenship, such as their birth certificates Likewise, it
is far from plausible from the facts alleged that plaintiffs would need to possess any documentation of their
citizenship_|et alone a passport specifically-in order to petition the federal government to intervene
should they find themselves in crisis while outside the United States. As pleaded, the facts are not "enough
9
As to the Citizenship Clause,g the Quaids allege no facts even remotely suggesting
that by revoking their passports defendants somehow destructed, took away, or terminated
their citizenship. See Afroyz`m v. Rusk, 387 U.S. 253, 268 (l967) (elucidating the purpose
and function of the Citizenship Clause). lndeed, defendants unequivocally acknowledge
and maintain that plaintiffs are United States citizens. Defs.’ Mem. l. Which, of course,
makes sense because a passport is merely one form of evidence of citizenship. As such,
plaintiffs here were only "deprived of proving [their] citizenship in one way when [their]
passport[s were] revoked." Kelso v. U.S. Dep ’t of State, 13 F. Supp. 2d l, 4 (D.D.C. 1998)
(emphasis added). And "unless the reason for revoking one’s passport is based upon a
finding of non-citizenship, the loss of a passport itself indicates nothing about the
legitimacy of one’s citizenship." Id. As the facts stated in the complaint do not
demonstrate the revocation of plaintiffs’ passports implicates their fundamental right of
citizenship, plaintiffs failed to state a claim under the Citizenship Clause.
CONCLUSION
Thus, for the foregoing reasons, the Court GRANTS defendants’ Motion to Dismiss.
An order consistent with this decision accompanies this Memorandum Opinion.
to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007),
8 Unlike the Privileges and Immunities Clause, "the protection afforded to the citizen by the Citizenship
Clause of [the Fourteenth] Amendment is a limitation on the powers of the National Govemment as well
as the States.” Saenz v. R0e, 526 U.S. 489, 507-08 (l999).
10