TURNER v. NAPOLITANO

Filing 22

Memorandum Opinion re 21 Order on Motion to Dismiss. Signed by Judge James E. Boasberg on 12/17/2013. (lcjeb4)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RICHARD F. TURNER,
Plaintiff,
v.

Civil Action No. 13-504 (JEB)

RAND BEERS, Acting Sec’y, Dept. of
Homeland Security,
Defendant.

MEMORANDUM OPINION
Pro se Plaintiff Richard Turner, an American citizen, was born in Chicago in 1977. See
Compl., Exh. 1 (Turner Letter). He is currently incarcerated in the Stanley Correctional
Institution in Stanley, Wisconsin. Id. While residing there, he sent a letter on November 4,
2012, to the United States Customs and Immigration Service attempting to renounce his
citizenship. Id. USCIS denied the request because the agency requires people to “appear in
person before a properly-designated USCIS officer at a designated USCIS office” in order to
renounce their citizenship. See Compl., Exh. 2 (USCIS Letter). As a result of this denial, Turner
brought this action against Janet Napolitano, in her capacity at that time as Secretary of the
Department of Homeland Security, seeking to force USCIS to accept and process his request.
Acting Secretary Rand Beers has moved to dismiss, arguing that Turner’s claims under both the
Mandamus Act and the Administrative Procedure Act are deficient.
Now that USCIS has agreed to hold Plaintiff’s request in abeyance until he is released
from prison, the Court will grant the Motion.

I.

Legal Standard
Defendant’s Motion invokes the legal standards for dismissal under Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6). To survive a motion to dismiss under Rule 12(b)(1),
Plaintiff bears the burden of proving that the Court has subject-matter jurisdiction to hear his
claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v.
U.S. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). A court has an “affirmative obligation
to ensure that it is acting within the scope of its jurisdictional authority.” Grand Lodge of
Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). For this reason,
“‘the [p]laintiff’s factual allegations in the complaint . . . 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.” Id. at 13-14
(quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d
ed. 1987)). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court “may
consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack
of jurisdiction.” Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005);
see also Venetian Casino Resort, LLC. v. EEOC, 409 F.3d 359, 366 (D.C. Cir. 2005) (“given the
present posture of this case – a dismissal under Rule 12(b)(1) on ripeness grounds – the court
may consider materials outside the pleadings”); Herbert v. Nat’l Academy of Sciences, 974 F.2d
192, 197 (D.C. Cir. 1992).
Rule 12(b)(6) provides for the dismissal of an action where a complaint fails “to state a
claim upon which relief can be granted.” In evaluating Defendant’s Motion to Dismiss, the
Court must “treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the
benefit of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air
Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d

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605, 608 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens Pharms., 402 F.3d
at 1253. The notice-pleading rules are “not meant to impose a great burden upon a plaintiff,”
Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and he must thus be given every
favorable inference that may be drawn from the allegations of fact. See Sparrow, 216 F.3d at
1114.
Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)
motion, Bell Atlantic Corp. v. Twombly, 550 U.S. 54, 555 (2007), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). Plaintiff
must put forth “factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. The Court need not accept as true “a legal
conclusion couched as a factual allegation,” nor an inference unsupported by the facts set forth in
the Complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain,
478 U.S. 265, 286 (1986)) (internal quotation marks omitted). Though a plaintiff may survive a
12(b)(6) motion even if “recovery is very remote and unlikely,” Twombly, 550 U.S. at 556
(citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the facts alleged in the complaint “must be
enough to raise a right to relief above the speculative level.” Id. at 555.
II.

Analysis
In moving to dismiss, Defendant argues both that the Court does not have subject-matter

jurisdiction to entertain Plaintiff’s request for mandamus and that Turner does not state a claim
under the Administrative Procedure Act. The Court will address each in turn.

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A. Mandamus
“Mandamus is an extraordinary remedy ‘reserved for really extraordinary cases,’” In re
Bituminous Coal Operators’ Ass’n, Inc., 949 F.2d 1165, 1167 (D.C. Cir. 1991) (quoting Ex parte
Fahey, 332 U.S. 258, 260 (1947)), and it “is hardly ever granted.” In re Cheney, 406 F.3d 723,
729 (D.C. Cir. 2005) (en banc). “Mandamus is available only if: (1) the plaintiff has a clear right
to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy
available to plaintiff.” Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002) (internal quotation
marks and citation omitted). “[A] writ of mandamus will issue ‘only where the duty to be
performed is ministerial and the obligation to act peremptory, and clearly defined. The law must
not only authorize the demanded action, but require it; the duty must be clear and undisputable.’”
13th Reg’l Corp. v. U.S. Dep’t of Interior, 654 F.2d 758, 760 (D.C. Cir. 1980) (quoting United
States ex rel. McLennan v. Wilbur, 283 U.S. 414, 420 (1931)); Lozada Colon v. U.S. Dep’t of
State, 170 F.3d 191 (D.C. Cir. 1999) (per curiam). “[E]ven if the plaintiff overcomes all these
hurdles, whether mandamus relief should issue is discretionary,” In re Cheney, 406 F.3d at 729,
and typically the Court must also “find[] ‘compelling . . . equitable grounds.’” In re Medicare
Reimbursement Litig., 414 F.3d 7, 10 (D.C. Cir. 2005) (quoting 13th Reg’l Corp., 654 F.2d at
760)(alteration in original).
Bearing this standard in mind, the Court begins with the proposition that “Congress has
broad authority over the conditions and procedures which must be satisfied to expatriate.” Koos
v. Holm, 204 F. Supp. 2d 1099, 1107 (W.D. Tenn. 2002); see also Talbot v. Jansen, 3 U.S. 133,
164 (1795) (Iredell, J.) (“it is the duty of the Legislature to make such provision[s]” regarding
expatriation). In exercising such authority, Congress has promulgated seven procedures for
voluntary expatriation. See 8 U.S.C. § 1481(a)(1)-(7). The first five require that the person

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seeking renunciation must currently be in a foreign country. See id. § 1483(a) (“Except as
provided in paragraphs (6) and (7) of section 1481(a) . . . , no national of the United States can
lose United States nationality under this chapter while within the United States . . . .”). These
obviously do not apply here.
The last two, conversely, do allow citizens to renounce their citizenship while in the
United States. See id. § 1481(a)(6)-(7). As a prisoner in Wisconsin, therefore, these are
Turner’s only possible recourses. The first, § (a)(6), permits citizens to give up their citizenship
by voluntarily
making in the United States a formal written renunciation of
nationality in such form as may be prescribed by, and before such
officer as may be designated by, the Attorney General, whenever
the United States shall be in a state of war and the Attorney
General shall approve such renunciation as not contrary to the
interests of national defense.
Although the statute refers to the Attorney General, this authority has since been transferred to
the Secretary of Homeland Security. See 6 U.S.C. § 557. The second, § (a)(7), requires
“committing any act of treason against, or attempting by force to overthrow, or bearing arms
against, the United States.” Not surprisingly, Turner relies on § (a)(6).
The Government does not contest that we are “in a state of war,” which is a prerequisite
for § (a)(6) to be operative. See Kaufman v. Holder, 686 F. Supp. 2d 40, 43-44 (D.D.C. 2010)
(holding that United States was in state of war during 2004 and 2008 for purposes § 1481(a)(6));
cf. Ali v. Obama, No. 11-5102, 2013 WL 6231555, at *1 (D.C. Cir. Dec. 3, 2013) (“The United
States is engaged in an ongoing war against al Qaeda, the Taliban, and associated forces.”); but
see Koos, 204 F. Supp. 2d at 1108 (“the United States is not in a state of war and § 1481(a)(6) is
presently inoperative”). The Court will thus assume that the country is in a state of war for the
purpose of this Motion.
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The only ministerial duty Defendant owed to Plaintiff under § (a)(6) was to “respond[] to
his request to renounce his citizenship.” Sluss v. U.S. Citizenship & Immigration Servs., 899 F.
Supp. 2d 37, 41 (D.D.C. 2012). USCIS did originally respond to Plaintiff’s request by sending a
letter of denial due to his inability to appear for an in-person interview at a USCIS field office.
See USCIS Letter. It has now agreed, at Plaintiff’s request, to open his case and hold it in
abeyance until his release from prison. See Supp. Br. at 1. Because Defendant has already
performed the only ministerial duty it owed to Turner, “the Court has no further function to
perform and, therefore, will dismiss the mandamus claim as moot.” Sluss, 899 F. Supp. 2d at 41.
The Court notes that this case is nearly identical to both Sluss and Schnitzler v. United
States, 863 F. Supp. 2d 1 (D.D.C. 2012), two cases from this District brought by prisoners
seeking mandamus to compel USCIS to allow them to renounce their citizenship while
incarcerated. There – like here – both courts found that USCIS had performed the only
ministerial duty it owed to the prisoners by responding to their requests, and they dismissed the
claims as moot. See Sluss, 899 F. Supp. 2d at 41; Schnitzler, 899 F. Supp. 2d at 3. The Court
sees no basis here for a different outcome. Given that Turner’s mandamus claim is moot, the
Court has no jurisdiction to further entertain it. See Iron Arrow Honor Soc'y v. Heckler, 464
U.S. 67, 70 (1983) (“Federal courts lack jurisdiction to decide moot cases because their
constitutional authority extends only to actual cases or controversies.”).
B. APA
In addition to seeking mandamus relief, Plaintiff also asserts that USCIS has violated the
APA. Turner contends that USCIS’s refusal to process his renunciation request based on its
requirement that he appear in person “is in violation of the clear and unambiguous wording of
the statute.” See Compl., ¶ 13. Plaintiff is indeed correct that the plain wording of the statute

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does not require a person to visit a USCIS office. “But the statute requires the agency to assess
the voluntariness of an applicant's renouncement without stating how such an assessment should
occur.” Sluss, 899 F. Supp. 2d at 41. USCIS has, therefore, decided to perform such an
assessment by requiring “in person [interviews] before a properly-designated USCIS officer at a
designated USCIS office.” See USCIS Letter. The Court cannot say that such a determination is
arbitrary or capricious. See 5 U.S.C. § 706(2)(A). Indeed, citizenship is such a prized asset that
USCIS is reasonable to insist on an interview in order to ascertain the bona fides, mental
competence, and true voluntariness of those who are seeking to renounce. See Sluss, 899 F.
Supp. 2d at 41-42 (similarly denying plaintiff’s challenge under APA to in-person-interview
requirement). In sum, “[w]hile APA cases are typically decided via summary judgment, on a
factually developed administrative record, the USCIS’ reasonable explanation based on
plaintiff’s incarceration provides a sufficient record for the Court to find that no APA violation
resulted from the USCIS’ action.” Id. at 42. Plaintiff, therefore, states no claim under the APA.
Turner alternatively asks that his renunciation request be held in abeyance until he is
released from prison and may appear for the in-person interview. See Opp. at 7. In an Order of
December 4, 2013, the Court required USCIS to justify its refusal to hold Plaintiff’s application
in abeyance or to agree to do so. See ECF No. 18 at 2. In a Supplemental Brief, Defendant
agreed and has “forwarded correspondence to Mr. Turner indicating that his case is now open
and being held in abeyance.” See Supp. Br. at 1. To the extent that is all Plaintiff seeks, his
request is now moot.

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III.

Conclusion
For the foregoing reasons, the Court will grant Defendant’s Motion to Dismiss. A

separate Order consistent with this Opinion will be issued this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: December 17, 2013

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