Alerts not yet Supported for this Docket ACCO,(JCx),CLOSED,DISCOVERY,MANADR,PROTORD
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Western Division - Los Angeles)
CIVIL DOCKET FOR CASE #: 2:18-cv-00523-JFW-JC

Andrew Mason Dvash-Banks et al v. Michael R. Pompeo et al Assigned to: Judge John F. Walter Referred to: Magistrate Judge Jacqueline Chooljian Case in other court: Ninth Circuit Court, 19-55517 Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 01/22/2018 Date Terminated: 03/06/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff Andrew Mason Dvash-Banks

represented by Alexa M Lawson-Remer Sullivan and Cromwell LLP 1888 Century Park East Suite 2100 Los Angeles, CA 90067 310-712-6600 Fax: 310-712-8800 Email: lawsonr@sullcrom.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron C Morris Immigration Equality 40 Exchange Place Suite 1300 New York, NY 1005-2744 212-714-2904 Email: amorris@immigrationequality.org PRO HAC VICE ATTORNEY TO BE NOTICED

Alexandra H Moss Sullivan and Cromwell LLP 125 Broad Street New York, NY 10012 212-558-4000 Fax: 212-558-3588 Email: mossa@sullcrom.com TERMINATED: 06/01/2018

PRO HAC VICE
Andrew K Jennings Sullivan and Cromwell LLP 125 Broad Street New York, NY 10004 212-558-4000 Fax: 212-558-3588 Email: jenningsa@sullcrom.com TERMINATED: 08/03/2018 PRO HAC VICE
Jessica M Klein Sullivan and Cromwell LLP 125 Broad Street New York, NY 10004-2498 212-558-3153 Fax: 212-558-3588 Email: kleinj@sullcrom.com PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Goldsmith Sullivan and Cromwell LLP 125 Broad Street 25th Floor New York, NY 10004 212-558-4023 Fax: 212-558-3588 Email: goldsmithl@sullcrom.com ATTORNEY TO BE NOTICED
Rebekah Tilander Raybuck Sullivan and Cromwell LLP 1870 Embarcadero Road Palo Alto, CA 94303 650-461-5674 Fax: 650-461-5700 Email: raybuckr@sullcrom.com ATTORNEY TO BE NOTICED
Scott E Blair Sullivan and Cromwell LLP 125 Broad Street New York, NY 10004-2498 212-558-3413 Fax: 212-558-3588

Plaintiff
E. J. D.-B. a Minor, Elad Dvash-Banks as the guardian ad litem

Email: blairs@sullcrom.com TERMINATED: 02/23/2018 PRO HAC VICE
Theodore Edelman Sullivan and Cromwell LLP 125 Broad Street New York, NY 10004-2498 212-558-3436 Fax: 212-558-3588 Email: edelmant@sullcrom.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexa M Lawson-Remer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron C Morris (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alexandra H Moss (See above for address) TERMINATED: 06/01/2018 PRO HAC VICE
Andrew K Jennings (See above for address) TERMINATED: 08/03/2018 PRO HAC VICE
Jessica M Klein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Goldsmith (See above for address) ATTORNEY TO BE NOTICED
Rebekah Tilander Raybuck (See above for address)

ATTORNEY TO BE NOTICED
Scott E Blair (See above for address) TERMINATED: 02/23/2018 PRO HAC VICE
Theodore Edelman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant The United States Department of State
Defendant Michael R. Pompeo US Secretary of State Successor Rex W. Tillerson

represented by Lisa Zeidner Marcus US Department of Justice Civil Division - Federal Programs Branch 700 Grant Street Suite 4000 Pittsburgh, PA 15219 202-305-0845 Email: lisa.marcus@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vinita Andrapalliyal US Department of Justice Civil Division - Federal Programs Branch P.O. Box 883 Washington, DC 20044 202-305-0845 Fax: 202-616-8470 Email: vinita.b.andrapalliyal@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lisa Zeidner Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vinita Andrapalliyal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/22/2018
01/22/2018 01/22/2018 01/22/2018 01/22/2018
01/24/2018 01/24/2018 01/24/2018

# Docket Text
1 COMPLAINT Receipt No: 0973-21130560 - Fee: $400, filed by Plaintiffs Ethan Jacob Dvash-Banks, Andrew Mason Dvash-Banks. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Attorney Alexa M Lawson-Remer added to party Andrew Mason Dvash-Banks(pty:pla), Attorney Alexa M Lawson-Remer added to party Ethan Jacob Dvash-Banks(pty:pla))(Lawson-Remer, Alexa) (Entered: 01/22/2018)
2 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening), 1 filed by Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks. (Lawson-Remer, Alexa) (Entered: 01/22/2018)
3 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening), 1 filed by Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks. (Lawson-Remer, Alexa) (Entered: 01/22/2018)
4 CIVIL COVER SHEET filed by Plaintiffs Andrew Mason DvashBanks, Ethan Jacob Dvash-Banks. (Lawson-Remer, Alexa) (Entered: 01/22/2018)
5 NOTICE of Interested Parties filed by Plaintiff All Plaintiffs, identifying None. (Attorney Alexandra H Moss added to party Andrew Mason Dvash-Banks(pty:pla), Attorney Alexandra H Moss added to party Ethan Jacob Dvash-Banks(pty:pla))(Moss, Alexandra) (Entered: 01/22/2018)
6 NOTICE OF ASSIGNMENT to District Judge John F. Walter and Magistrate Judge Jacqueline Chooljian. (ghap) (Entered: 01/24/2018)
7 NOTICE TO PARTIES OF COURT-DIRECTED ADR PROGRAM filed. (ghap) (Entered: 01/24/2018)
8 60 DAY Summons Issued re Complaint (Attorney Civil Case Opening), 1 as to Defendant Rex W. Tillerson. (ghap) (Entered: 01/24/2018)

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9 NOTICE OF DEFICIENCIES in Request to Issue Summons RE: Summons Request 2 . The following error(s) was found: Summons is not directed to the defendant(s). The defendants name must appear in the To:section of the summons. The summons cannot be issued until this defect has been corrected. Please correct the defect and re-file your request. (ghap) (Entered: 01/24/2018)
10 NOTICE OF PRO HAC VICE APPLICATION DUE for Non-Resident Attorney Theodore Edelman. A document recently filed in this case lists you as an out-of-state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G-64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back to the docket until your Pro Hac Vice status has been resolved. (ghap) (Entered: 01/24/2018)
11 NOTICE OF PRO HAC VICE APPLICATION DUE for Non-Resident Attorney Jessica Klein. A document recently filed in this case lists you as an out-of-state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G-64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back to the docket until your Pro Hac Vice status has been resolved. (ghap) (Entered: 01/24/2018)
12 NOTICE OF PRO HAC VICE APPLICATION DUE for Non-Resident Attorney Scott E Blair. A document recently filed in this case lists you as an out-of-state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G-64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back

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01/24/2018 01/25/2018 01/25/2018 01/25/2018 01/26/2018

to the docket until your Pro Hac Vice status has been resolved. (ghap) (Entered: 01/24/2018)
13 NOTICE OF PRO HAC VICE APPLICATION DUE for Non-Resident Attorney Aaron C Morris. A document recently filed in this case lists you as an out-of-state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G-64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back to the docket until your Pro Hac Vice status has been resolved. (ghap) (Entered: 01/24/2018)
14 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening), 1 filed by Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks. (Moss, Alexandra) (Entered: 01/24/2018)
15 APPLICATION of Non-Resident Attorney Theodore Edelman to Appear Pro Hac Vice on behalf of Plaintiffs Andrew Mason DvashBanks, Ethan Jacob Dvash-Banks (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-21157871) filed by Plaintiffs Andrew Mason DvashBanks, Ethan Jacob Dvash-Banks. (Attachments: # 1 Proposed Order) (Lawson-Remer, Alexa) (Entered: 01/25/2018)
16 APPLICATION of Non-Resident Attorney Jessica M. Klein to Appear Pro Hac Vice on behalf of Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-21158143) filed by Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks. (Attachments: # 1 Proposed Order) (LawsonRemer, Alexa) (Entered: 01/25/2018)
17 60 DAY Summons Issued re Complaint (Attorney Civil Case Opening) 1 as to defendant The United States Department of State. (jp) (Entered: 01/25/2018)
18 APPLICATION of Non-Resident Attorney Andrew K. Jennings to Appear Pro Hac Vice on behalf of Plaintiffs Andrew Mason DvashBanks, Ethan Jacob Dvash-Banks (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-21164726) filed by Plaintiffs Andrew Maso n DvashBanks, Ethan Jacob Dvash-Banks. (Attachments: # 1 Proposed Order) (Lawson-Remer, Alexa) (Entered: 01/26/2018)

01/26/2018 01/26/2018 01/26/2018
02/01/2018 02/01/2018

19 APPLICATION of Non-Resident Attorney Scott E. Blair to Appear Pro Hac Vice on behalf of Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks (Pro Hac Vice Fee - Fee Paid, Receipt No. 097321164950) filed by Plaintiffs Andrew Mason Dv ash-Banks, Ethan Jacob Dvash-Banks. (Attachments: # 1 Proposed Order) (LawsonRemer, Alexa) (Entered: 01/26/2018)
20 APPLICATION of Non-Resident Attorney Aaron C. Morris to Appear Pro Hac Vice on behalf of Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-21165065) filed by Plaintiffs Andrew Mason D vash-Banks, Ethan Jacob Dvash-Banks. (Attachments: # 1 Proposed Order) (Lawson-Remer, Alexa) (Entered: 01/26/2018)
21 CERTIFICATE OF SERVICE filed by Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks, re APPLICATION of NonResident Attorney Aaron C. Morris to Appear Pro Hac Vice on behalf of Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-21165065) 20 , APPLICATION of Non-Resident Attorney Theodore Edelman to Appear Pro Hac Vice on behalf of Plaintiffs Andrew Mason DvashBanks, Ethan Jacob Dvash-Banks (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-21157871) 15 , APPLICATION of Non-Resident Attorney Scott E. Blair to Appear Pro Hac Vice on behalf of Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-21164950) 19 , APPLICATION of Non-Resident Attorney Andrew K. Jennings to Appear Pro Hac Vice on behalf of Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks (Pro Hac Vice Fee - Fee Paid, Receipt No. 097321164726) 18 , APPLICATION of Non-Resident Attorney Jessica M. Klein to Appear Pro Hac Vice on behalf of Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-21158143) 16 served on 01/26/2018. (LawsonRemer, Alexa) (Entered: 01/26/2018)
22 ORDER by Judge John F. Walter: Granting Application of NonResident Attorney Theodore Edelman to Appear Pro Hac Vice on behalf of Plaintiff Andrew Mason Dvash-Banks and Ethan Jacob Dvash-Banks, designating Alexa M. Lawson-Remer as local counsel 15 . (iv) (Entered: 02/01/2018)
23 ORDER by Judge John F. Walter: Granting Application of NonResident Attorney Jessica M. Klein to Appear Pro Hac Vice on behalf of Plaintiff Andrew Mason Dvash-Banks and Ethan Jacob DvashBanks, designating Alexa M. Lawson-Remer as local counsel 16 . (iv) (Entered: 02/01/2018)

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24 ORDER by Judge John F. Walter: Granting Application of NonResident Attorney Andrew Jennings to Appear Pro Hac Vice on behalf of Plaintiff Andrew Mason Dvash-Banks and Ethan Jacob DvashBanks, designating Alexa M. Lawson-Remer as local counsel 18 . (iv) (Entered: 02/01/2018)
25 ORDER by Judge John F. Walter: Granting Application of NonResident Attorney Scott E. Blair to Appear Pro Hac Vice on behalf of Plaintiff Andrew Mason Dvash-Banks and Ethan Jacob Dvash-Banks, designating Alexa M. Lawson-Remer as local counsel 19 . (iv) (Entered: 02/01/2018)
26 ORDER by Judge John F. Walter: Granting Application of NonResident Attorney Aaron C. Morris to Appear Pro Hac Vice on behalf of Plaintiff Andrew Mason Dvash-Banks and Ethan Jacob DvashBanks, designating Alexa M. Lawson-Remer as local counsel 20 . (iv) (Entered: 02/01/2018)
27 STANDING ORDER by Judge John F. Walter. READ THIS ORDER CAREFULLY. IT CONTROLS THE CASE AND DIFFERS IN SOME RESPECTS FROM THE LOCAL RULES. This action has been assigned to the calendar of Judge John F. Walter. (iv) (Entered: 02/02/2018)
28 CERTIFICATE OF SERVICE filed by Plaintiff Attorney Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks, re Initial Order upon Filing of Complaint - form only 27 served on 02/02/2018. (LawsonRemer, Alexa) (Entered: 02/02/2018)
29 DECLARATION of Theodore Edelman filed by Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks. (Edelman, Theodore) (Entered: 02/08/2018)
30 PROOF OF SERVICE Executed by Plaintiff Ethan Jacob DvashBanks, Andrew Mason Dvash-Banks, upon Defendant The United States Department of State served on 1/26/2018, answer due 3/27/2018. Service of the Summons and Complaint were executed upon the United States Attorneys Office by delivering a copy to Genoveva Ortega, Legal Clerk. Executed upon the Attorney Generals Office of the United States by delivering a copy to Ronnie DuBose, Office of the Assistant Attorney General, Justice Management Division. Executed upon the officer agency or corporation by delivering a copy to Executive Office, Office of the Legal Adviser, U.S. Department of State. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Jennings, Andrew) (Entered: 02/12/2018)

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31 PROOF OF SERVICE Executed by Plaintiff Ethan Jacob DvashBanks, Andrew Mason Dvash-Banks, upon Defendant Rex W. Tillerson served on 1/29/2018, answer due 3/30/2018. Service of the Summons and Complaint were executed upon the United States Attorneys Office by delivering a copy to Genoveva Ortega, Legal Clerk. Executed upon the Attorney Generals Office of the United States by delivering a copy to David Burroughs, Office of the Assistant Attorney General, Justice Management Division. Executed upon the officer agency or corporation by delivering a copy to Executive Office, Office of the Legal Adviser, U.S. Department of State. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Jennings, Andrew) (Entered: 02/12/2018)
32 Notice of Appearance or Withdrawal of Counsel: for attorney Andrew K Jennings counsel for Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks. Scott E. Blair is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G123 Notice. Filed by counsel Andrew Jennings. (Jennings, Andrew) (Entered: 02/23/2018)
33 CERTIFICATE OF SERVICE filed by Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks, re Notice of Appearance or Withdrawal of Counsel (G-123), 32 served on February 23, 2018. (Lawson-Remer, Alexa) (Entered: 02/23/2018)
34 Notice of Appearance or Withdrawal of Counsel: for attorney Vinita Andrapalliyal counsel for Defendants The United States Department of State, Rex W. Tillerson. Adding Vinita B. Andrapalliyal as counsel of record for Defendants for the reason indicated in the G-123 Notice. Filed by Defendants U.S. Department of State, Rex W. Tillerson, Secretary, U.S. Department of State. (Attorney Vinita Andrapalliyal added to party The United States Department of State(pty:dft), Attorney Vinita Andrapalliyal added to party Rex W. Tillerson(pty:dft))(Andrapalliyal, Vinita) (Entered: 03/22/2018)
35 Joint STIPULATION for Extension of Time to File Answer to May 29, 2018 re Complaint (Attorney Civil Case Opening), 1 , Joint STIPULATION for Relief from additional case deadlines for 60 days filed by Defendants The United States Department of State, Rex W. Tillerson. (Attachments: # 1 Proposed Order)(Andrapalliyal, Vinita) (Entered: 03/22/2018)
36 ORDER EXTENDING CASE DEADLINES 35 by Judge John F. Walter. The case deadlines are extended by 60 days. Defendants'

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response to Plaintiffs' Complaint is extended from March 27, 2018 to May 29, 2018. The parties will file a joint status report by May 29, 2018. (iv) (Entered: 03/28/2018)
37 DECLARATION of Vinita B. Andrapalliyal (Declaration of Lead Trial Counsel) filed by Defendants The United States Department of State, Rex W. Tillerson. (Andrapalliyal, Vinita) (Entered: 03/30/2018)
38 NOTICE TO PARTIES by U.S. Magistrate Judge Jacqueline Chooljian. Effective, April 11, 2018, Judge Chooljian will be located at the Edward R. Roybal Federal Building and U.S. Courthouse ("Roybal Building"), located at 255 East Temple Street, Los Angeles, California 90012. All Court appearances shall be made in Courtroom 750 on the 7th floor of the Roybal Building. All mandatory chambers copies shall be hand delivered to the judge's mail box located outside of the Clerk's Office on the 12th floor of the Roybal Building. Paper civil and criminal documents exempted from electronic filing shall be filed in Room 180 on the Terrace Level of the Roybal Building. Magistrate Judge Chooljian's Courtroom Deputy Clerk, Kerri Hays, may be reached at (213) 894-2921. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (rrey) TEXT ONLY ENTRY (Entered: 04/10/2018)
39 STATUS REPORT (Joint) filed by Defendants The United States Department of State, Rex W. Tillerson. (Andrapalliyal, Vinita) (Entered: 05/23/2018)
40 Joint STIPULATION for Extension of Time to File Answer to 07/16/2018, STIPULATION for Relief from additional case management deadlines for 45 days filed by Defendants The United States Department of State, Rex W. Tillerson. (Attachments: # 1 Proposed Order)(Andrapalliyal, Vinita) (Entered: 05/23/2018)
41 ORDER EXTENDING CASE DEADLINES 40 by Judge John F. Walter. The case deadlines are extended by 45 days. Defendants' response to Plaintiffs' Complaint is extended from May 29, 2018 to July 16, 2018. The parties will file a joint status report by July 16, 2018. (iv) (Entered: 05/25/2018)
42 Notice of Appearance or Withdrawal of Counsel: for attorney Andrew K Jennings counsel for Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks. Alexandra H. Moss is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks. (Jennings, Andrew) (Entered: 06/01/2018)

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43 STATUS REPORT (Joint) filed by Defendants The United States Department of State, Rex W. Tillerson. (Andrapalliyal, Vinita) (Entered: 07/11/2018)
44 Joint STIPULATION Extending Time to Answer the complaint as to The United States Department of State answer now due 8/6/2018; Rex W. Tillerson answer now due 8/6/2018,, Joint STIPULATION for Relief from Additional Case Management Deadlines filed by defendants The United States Department of State; Rex W. Tillerson. (Attachments: # 1 Proposed Order)(Andrapalliyal, Vinita) (Entered: 07/11/2018)
45 ORDER DENYING EXTENDING CASE DEADLINES 44 by Judge John F. Walter. DENIED BY ORDER OF THE COURT. (iv) (Entered: 07/12/2018)
46 ANSWER to Complaint (Attorney Civil Case Opening), 1 filed by Defendants The United States Department of State, Rex W. Tillerson.(Andrapalliyal, Vinita) (Entered: 07/16/2018)
47 MINUTE ORDER IN CHAMBERS by Judge John F. Walter. Counsel are hereby notified that a Scheduling Conference has been set for August 27, 2018 at 1:15 p.m. before Judge John F. Walter in Courtroom 7A, 350 W. 1st St, Los Angeles, CA 90012. Lead Trial Counsel shall attend all proceedings before this Court, including the Scheduling Conference. Counsel are directed to comply with Rule 26 of the Federal Rules of Civil Procedure and Local Rule 26-1 in a timely fashion and to file a Joint Report, on or before August 20, 2018. (iv) (Entered: 08/01/2018)
48 Notice of Appearance or Withdrawal of Counsel: for attorney Andrew K Jennings counsel for Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks. Andrew K Jennings is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiff Andrew Mason Dvash-Banks and Ethan Jacob Dvash-Banks. (Jennings, Andrew) (Entered: 08/03/2018)
49 NOTICE filed by plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks. (Scheduling Conference) (Lawson-Remer, Alexa) (Entered: 08/03/2018)
50 JOINT REPORT Rule 26(f) Discovery Plan for Scheduling Conference ; estimated length of trial 4 days, filed by Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks.. (Attachments: # 1 Request: ADR Procedure Selection)(Edelman, Theodore) (Entered: 08/20/2018)

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11/27/2018

51 ORDER VACATING SCHEDULING CONFERENCE AND REFERRAL TO PRIVATE MEDIATION by Judge John F. Walter. The Court has reviewed the parties' Joint Rule 26(f) Report and finds that a Scheduling Conference is not necessary. The hearing on August 27, 2018 is vacated and taken off calendar. A Scheduling and Case Management Order will issue. Any unserved DOE defendants are dismissed at this time. The Court, having considered the parties' Request: ADR Procedure Selection, the Notice toParties of CourtDirected ADR Program, or the report submitted by the parties pursuant to Fed. R. Civ. P. 26(f) and Civil L.R. 26-1, hereby: ORDERS this case referred to: ADR PROCEDURE NO. 3: (Private mediation). The ADR proceeding is to be completed no later than: December 10, 2018. The Joint Report re: Results of Settlement Conference due on: December 14, 2018. (iv) (Entered: 08/21/2018)
52 SCHEDULING AND CASE MANAGEMENT ORDER by Judge John F. Walter. The purpose of this Order is to notify the parties and their counsel of the deadlines and the schedule that will govern this action. Pretrial Conference set for 4/5/2019 at 10:00 AM. Court Trial set for 4/16/2019 at 8:30 AM. SEE ORDER FOR DETAILS. (iv) (Entered: 08/21/2018)
53 NOTICE of Appearance filed by attorney Lisa Zeidner Marcus on behalf of Defendants The United States Department of State, Rex W. Tillerson (Attorney Lisa Zeidner Marcus added to party The United States Department of State(pty:dft), Attorney Lisa Zeidner Marcus added to party Rex W. Tillerson(pty:dft))(Marcus, Lisa) (Entered: 11/19/2018)
54 NOTICE OF MOTION AND MOTION to Compel Production of Documents, Interrogatory Responses, and Depositions filed by Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks. Motion set for hearing on 12/11/2018 at 09:30 AM before Magistrate Judge Jacqueline Chooljian. (Attachments: # 1 Joint Stipulation, # 2 Declaration of Alexa M. Lawson-Remer, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Declaration of Lisa Zeidner Marcus, # 19 Exhibit A, # 20 Exhibit B, # 21 Exhibit C, # 22 Exhibit D, # 23 Exhibit E, # 24 Exhibit F, # 25 Exhibit G, # 26 Exhibit H, # 27 Declaration of Karen L. Christensen, # 28 Declaration of Brian J. Egan, # 29 Declaration of Carlos A. Hernandez)(Lawson-Remer, Alexa) (Entered: 11/19/2018)
55 MEMORANDUM in Support of MOTION to Compel Production of Documents, Interrogatory Responses, and Depositions 54 Supplemental

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12/03/2018 12/04/2018

Brief filed by Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks. (Attachments: # 1 Declaration of Alexa Lawson-Remer in Support of Plaintiffs' Supplemental Memorandum, # 2 Exhibit 1, # 3 Exhibit 2)(Lawson-Remer, Alexa) (Entered: 11/27/2018)
57 MINUTES (IN CHAMBERS) ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED AS TO PLAINTIFF ETHAN JACOB DVASH-BANKS by Judge John F. Walter. Plaintiffs are hereby ordered to show cause, in writing, no later than December 3, 2018, why this action should not be dismissed without prejudice as to Ethan for failure to appoint a guardian ad litem. (iv) (Entered: 11/28/2018)
56 SUPPLEMENT to MOTION to Compel Production of Documents, Interrogatory Responses, and Depositions 54 Supplemental Memorandum filed by Defendants Michael R. Pompeo, The United States Department of State. (Attachments: # 1 Declaration 2d Marcus Decl, # 2 Exhibit I, # 3 Exhibit J)(Marcus, Lisa) (Entered: 11/28/2018)
58 EX PARTE APPLICATION for Appointment of Elad Dvash-Banks as Guardian ad Litem for EJDB filed by plaintiffs Andrew Mason DvashBanks, Ethan Jacob Dvash-Banks. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Alexa M. Lawson-Remer, # 3 Declaration of Elad Dvash-Banks, # 4 Proposed Order) (LawsonRemer, Alexa) (Entered: 12/03/2018)
59 Notice of Appearance or Withdrawal of Counsel: for attorney Rebekah Tilander Raybuck counsel for Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks. Adding Rebekah T. Raybuck as counsel of record for Plaintiffs for the reason indicated in the G-123 Notice. Filed by Plaintiffs Andrew Mason Dvash-Banks and Ethan Jacob DvashBanks. (Attorney Rebekah Tilander Raybuck added to party Andrew Mason Dvash-Banks(pty:pla), Attorney Rebekah Tilander Raybuck added to party Ethan Jacob Dvash-Banks(pty:pla))(Raybuck, Rebekah) (Entered: 12/03/2018)
60 Notice of Appearance or Withdrawal of Counsel: for attorney Alexa M Lawson-Remer counsel for Plaintiffs Andrew Mason Dvash-Banks, Ethan Jacob Dvash-Banks. Adding Lauren M. Goldsmith as counsel of record for Andrew Mason Dvash-Banks and Ethan Jacob Dvash-Banks for the reason indicated in the G-123 Notice. Filed by Plaintiffs Andrew Mason Dvash-Banks and Ethan Jacob Dvash-Banks. (Lawson-Remer, Alexa) (Entered: 12/03/2018)
61 ORDER GRANTING EX PARTE APPLICATION TO APPOINT GUARDIAN AD LITEM 58 by Magistrate Judge Jacqueline Chooljian. Good cause appearing, the Court GRANTS Plaintiffs' Ex Parte

12/11/2018
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12/13/2018

Application and appoints Elad Dvash-Banks as the guardian ad litem for E.J.D.-B. in the instant action. IT IS SO ORDERED. (lom) (Entered: 12/04/2018)
65 MINUTES OF MOTION HEARING AND ORDERS ON PLAINTIFFS' MOTION TO COMPEL held before Magistrate Judge Jacqueline Chooljian: Case called. Counsel stated their appearances. The Court heard argument from counsel. Plaintiffs withdrew portions of the Motion to Compel as detailed below. For reasons explained on therecord and as detailed below, the Court granted in part and denied in part without prejudice Plaintiffs' Motion to Compel. The Court set further telephonic status conferences for discovery as detailed below and directed Defendants' counsel to provide a proposed stipulated protective order to Plaintiffs' counselby not later December 12, 2018. (SEE DOCUMENT FOR FURTHER DETAILS) Court Recorder: CS 12-11-18. (klg) (Entered: 12/12/2018)
62 TRANSCRIPT ORDER as to plaintiffs E. J. D.-B., Andrew Mason Dvash-Banks for Court Smart (CS). Court will contact Sara Carrico at carricos@sullcrom.com with further instructions regarding this order. Transcript preparation will not begin until payment has been satisfied with the transcription company. (Lawson-Remer, Alexa) (Entered: 12/12/2018)
63 COMPACT DISC Order The United States Department of State. Court will contact Tija Anderson Transcript portion requested: Hearing Date: 12/11/18. Federal Government Agency - No fee required: U.S. Dept of State - DOJ. (ha) (Entered: 12/12/2018)
64 TRANSCRIPT ORDER for Court Smart (CS).Hearing Date: 12/11/18. Transcript preparation will not begin until payment has been satisfied with the transcription company. (ha) (Entered: 12/12/2018)
66 TRANSCRIPT for proceedings held on 12-11-18 10:02 a.m.. Court Reporter/Electronic Court Recorder: EXCEPTIONAL REPORTING SERVICES, INC., phone number (361) 949-2988. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 1/3/2019. Redacted Transcript Deadline set for 1/14/2019. Release of Transcript Restriction set for 3/13/2019. (ha) (Entered: 12/13/2018)
67 NOTICE OF FILING TRANSCRIPT filed for proceedings 12/11/18 10:02 A.M. re Transcript 66 THERE IS NO PDF DOCUMENT

12/14/2018
12/14/2018 12/18/2018 12/19/2018 12/19/2018

ASSOCIATED WITH THIS ENTRY. (ha) TEXT ONLY ENTRY (Entered: 12/13/2018)
68 MINUTE ORDER (IN CHAMBERS) RE COMMUNICATION FROM COUNSEL, VACATING DECEMBER 14, 2018 STATUS CONFERENCE AND DEEMING WITHDRAWN/DENYING AS MOOT PLAINTIFFS' MOTION TO COMPEL RELATIVE TO FED. R. CIV. P. 30(B)(6) TOPIC NO. 5 by Magistrate Judge Jacqueline Chooljian: On December 11, 2018, the Court deferred ruling on Plaintiff's Motion to Compel relative to Fed. R. Civ. P. 30(b)(6) Topic No. 5 for the purpose of allowing the parties further to meet and confer regarding the same, and scheduled a telephonic status conference for this date at 8:00 a.m. to resolve any remaining dispute regarding the same, subject to such conference being vacated if Plaintiffs' and Defendants counsel both notified the Clerk that such conference was unnecessary. As the Clerk has now been notified by counsel that they have resolved their disputes relative to Fed. R. Civ. P. 30(b)(6) Topic No. 5 and that a status conference this date is unnecessary, the Court vacates today's status conference and deems Plaintiffs Motion to Compel relative to Fed. R. Civ. P. 30(b)(6) Topic No. 5 withdrawn/denies the motion as moot relative to the same. (klg) (Entered: 12/14/2018)
69 JOINT REPORT of Settlement Conference filed by Defendants Michael R. Pompeo, The United States Department of State. (Andrapalliyal, Vinita) (Entered: 12/14/2018)
70 Joint STIPULATION for Protective Order filed by Defendants Michael R. Pompeo, The United States Department of State. (Attachments: # 1 Supplement Redline of proposed changes to form order, # 2 Proposed Order)(Andrapalliyal, Vinita) (Entered: 12/18/2018)
71 PROTECTIVE ORDER by Magistrate Judge Jacqueline Chooljian. (SEE DOCUMENT FOR DETAILS) 70 (klg) (Entered: 12/19/2018)
72 MINUTE ORDER OF TELEPHONIC STATUS CONFERENCE held before Magistrate Judge Jacqueline Chooljian: Case called. Counsel stated their appearances. The parties updated the Court regarding the current status of discovery. The Court ordered the parties to confer regarding produced documents redacted on bases other than attorneyclient privilege/work product and ordered defendants to produce: 1. Unredacted versions of previously produced documents that were redacted on bases other than attorney-client privilege/work product (subject to the Protective Order issued this date) by 6:00 a.m. Pacific Time on December 20, 2018; and 2. A privilege log regarding documents withheld/redacted based upon an assertion of attorney-client

12/21/2018 12/26/2018 12/26/2018 12/26/2018 01/03/2019 01/04/2019 01/04/2019
01/04/2019 01/07/2019

privilege/work product by not later than December 28, 2018. Court Recorder: CS 12-19-18. (klg) (Entered: 12/20/2018)
73 Joint STIPULATION for Extension of Time to File Summary Judgment Motions filed by Defendants Michael R. Pompeo, The United States Department of State. (Attachments: # 1 Proposed Order)(Andrapalliyal, Vinita) (Entered: 12/21/2018)
74 EX PARTE APPLICATION to Stay Case pending Discovery Cut-off and Motion Hearing Cut-off in Light of Lapse of Appropriations filed by Defendants Michael R. Pompeo, The United States Department of State. (Attachments: # 1 Declaration, # 2 Proposed Order) (Andrapalliyal, Vinita) (Entered: 12/26/2018)
75 ORDER EXTENDING CASE DEADLINES 73 by Judge John F. Walter. The motion hearing cut-off date is extended to February 4, 2019. (iv) (Entered: 12/26/2018)
76 ORDER 74 by Judge John F. Walter. DENIED BY ORDER OF THE COURT. (iv) (Entered: 12/26/2018)
77 STATEMENT Joint Statement Regarding Local Rule 7-3 Conference filed by Plaintiffs E. J. D.-B., Andrew Mason Dvash-Banks (LawsonRemer, Alexa) (Entered: 01/03/2019)
78 Joint STIPULATION for Order to Modifity Scheduling Order Under Rule 16(b) filed by plaintiffs E. J. D.-B., Andrew Mason Dvash-Banks. (Attachments: # 1 Proposed Order)(Lawson-Remer, Alexa) (Entered: 01/04/2019)
79 (Mooted by 93 ) EX PARTE APPLICATION to Remove Plaintiffs' Equal Protection Claim via Amendment of the Complaint by Notice of Motion and Unopposed Motion Under FRCP 15(a) filed by plaintiffs E. J. D.-B., Andrew Mason Dvash-Banks. (Attachments: # 1 Declaration of Alexa M. Lawson-Remer, # 2 Exhibit A, # 3 Exhibit B, # 4 Proposed Order) (Lawson-Remer, Alexa) Modified on 1/18/2019 (sr). (Entered: 01/04/2019)
80 CERTIFIED ADMINISTRATIVE RECORD filed by Defendants Michael R. Pompeo, The United States Department of State. (Attachments: # 1 Index to AR, # 2 AR 001, # 3 AR 002-008, # 4 AR 009-072, # 5 AR 073, # 6 AR 074-076, # 7 AR 077-080, # 8 AR 081106)(Marcus, Lisa) (Entered: 01/04/2019)
81 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Administrative Record 80 . The following error(s) was/were found: Title page is missing. In response to this notice, the

01/07/2019 01/07/2019

Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (iv) (Entered: 01/07/2019)
82 NOTICE OF NON-OPPOSITION to EX PARTE APPLICATION to Remove Plaintiffs' Equal Protection Claim via Amendment of the Complaint by Notice of Motion and Unopposed Motion Under FRCP 15(a) 79 filed by Defendants Michael R. Pompeo, The United States Department of State. (Andrapalliyal, Vinita) (Entered: 01/07/2019)
83 NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to to the Due Process Clause of the Fifth Amendment claim on behalf of both Plaintiffs and to the U.S.C. Section 1503 claim on behalf of Plaintiff E.J.D.-B. filed by Plaintiffs E. J. D.-B., Andrew Mason Dvash-Banks. Motion set for hearing on 2/4/2019 at 01:30 PM before Judge John F. Walter. (Attachments: # 1 Memorandum of Points and Authorities in Support of Motion for Partial Summary Judgment, # 2 Appendix A of Memoradum of Points and Authorities in Support of Motion for Partial Summary Judgment, # 3 Declaration of Alexa Lawson-Remer in Support of Motion for Partial Summary Judgment, # 4 Exhibit A of Lawson-Remer Declaration ISO Motion for Partial Summary Judgment, # 5 Exhibit B of Lawson-Remer Declaration ISO Motion for Partial Summary Judgment, # 6 Exhibit C of Lawson-Remer Declaration ISO Motion for Partial Summary Judgment, # 7 Exhibit D of Lawson-Remer Declaration ISO Motion for Partial Summary Judgment, # 8 Exhibit E of Lawson-Remer Declaration ISO Motion for Partial Summary Judgment, # 9 Exhibit F of Lawson-Remer Declaration ISO Motion for Partial Summary Judgment, # 10 Exhibit G - Section 1 of 2 of Lawson-Remer Declaration ISO Motion for Partial Summary Judgment, # 11 Exhibit G - Section 2 of 2 of Lawson-Remer Declaration ISO Motion for Partial Summary Judgment, # 12 Exhibit G-1 of Lawson-Remer Declaration ISO Motion for Partial Summary Judgment, # 13 Exhibit G-2 of Lawson-Remer Declaration ISO Motion for Partial Summary Judgment, # 14 Exhibit G-3 of Lawson-Remer Declaration ISO Motion for Partial Summary Judgment, # 15 Exhibit G-4 of Lawson-Remer Declaration ISO Motion for Partial Summary Judgment, # 16 Exhibit G-5 of Lawson-Remer Declaration ISO Motion for Partial Summary Judgment, # 17 Exhibit G-6 of Lawson-Remer Declaration ISO Motion for Partial Summary Judgment, # 18 Exhibit G-7 of Lawson-Remer Declaration ISO Motion for Partial Summary Judgment, # 19 Exhibit G-8 of Lawson-Remer Declaration ISO Motion for Partial Summary Judgment, # 20 Declaration of Andrew DvashBanks in Support of Motion for Partial Summary Judgment, # 21 Exhibit H of Dvash-Banks Declaration ISO Motion for Partial

01/07/2019 01/07/2019 01/07/2019 01/07/2019 01/07/2019

Summary Judgment, # 22 Exhibit I of Dvash-Banks Declaration ISO Motion for Partial Summary Judgment, # 23 Exhibit J of Dvash-Banks Declaration ISO Motion for Partial Summary Judgment, # 24 Rule 56-1 Statement of Uncontroverted Facts and Conclusions of Law ISO Motion for Partial Summary Judgment, # 25 Proposed Order) (LawsonRemer, Alexa) (Entered: 01/07/2019)
84 Excerpts from the Deposition of Terri Nathine Frances Day ISO Plaintiffs' Motion for Partial Summary Judgment filed by Plaintiffs E. J. D.-B., Andrew Mason Dvash-Banks re: NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to to the Due Process Clause of the Fifth Amendment claim on behalf of both Plaintiffs and to the U.S.C. Section 1503 claim on behalf of Plaintiff E.J.D.B. 83 (Lawson-Remer, Alexa) (Entered: 01/07/2019)
85 Excerpts from the Deposition of Andrew Mason Dvash-Banks ISO Plaintiffs' Motion for Partial Summary Judgment filed by Plaintiffs E. J. D.-B., Andrew Mason Dvash-Banks re: NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to to the Due Process Clause of the Fifth Amendment claim on behalf of both Plaintiffs and to the U.S.C. Section 1503 claim on behalf of Plaintiff E.J.D.B. 83 (Lawson-Remer, Alexa) (Entered: 01/07/2019)
86 Excerpts from the Deposition of Paul Peek ISO Plaintiffs' Motion for Partial Summary Judgment filed by Plaintiffs E. J. D.-B., Andrew Mason Dvash-Banks re: NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to to the Due Process Clause of the Fifth Amendment claim on behalf of both Plaintiffs and to the U.S.C. Section 1503 claim on behalf of Plaintiff E.J.D.-B. 83 (Lawson-Remer, Alexa) (Entered: 01/07/2019)
87 Excerpts from the Deposition of Margaret Ramsay ISO Plaintiffs' Motion for Partial Summary Judgment filed by Plaintiffs E. J. D.-B., Andrew Mason Dvash-Banks re: NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to to the Due Process Clause of the Fifth Amendment claim on behalf of both Plaintiffs and to the U.S.C. Section 1503 claim on behalf of Plaintiff E.J.D.B. 83 (Lawson-Remer, Alexa) (Entered: 01/07/2019)
88 Excerpts from the Deposition of Larilyn Reffett ISO Plaintiffs' Motion for Partial Summary Judgment filed by Plaintiffs E. J. D.-B., Andrew Mason Dvash-Banks re: NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to to the Due Process Clause of the Fifth Amendment claim on behalf of both Plaintiffs and to the U.S.C. Section 1503 claim on behalf of Plaintiff E.J.D.-B. 83 (Lawson-Remer, Alexa) (Entered: 01/07/2019)

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89 NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Proposed Counts I, II, III filed by Defendants Michael R. Pompeo, The United States Department of State. Motion set for hearing on 2/4/2019 at 01:30 PM before Judge John F. Walter. (Attachments: # 1 Memorandum, # 2 Supplement Statement of Uncontroverted Facts and Law, # 3 Declaration, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit) (Andrapalliyal, Vinita) (Entered: 01/07/2019)
90 DECLARATION of Lisa Zeidner Marcus in support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Proposed Counts I, II, III 89 filed by Defendants Michael R. Pompeo, The United States Department of State. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Marcus, Lisa) (Entered: 01/07/2019)
91 PROPOSED ORDER re NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Proposed Counts I, II, III 89 filed by Defendants Michael R. Pompeo, The United States Department of State. (Marcus, Lisa) (Entered: 01/07/2019)
92 NOTICE OF ERRATA filed by Defendants Michael R. Pompeo, The United States Department of State. correcting NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Proposed Counts I, II, III 89 (Attachments: # 1 Exhibit A (Corrected Memorandum))(Andrapalliyal, Vinita) (Entered: 01/08/2019)
93 ORDER TO MODIFY SCHEDULING ORDER UNDER RULE 16(b) 78 by Judge John F. Walter. The deadline for amending the pleadings in the Court's Scheduling and Case Management Order shall be modified to permit Plaintiffs to file a First Amended Complaint for the purpose of removing their equal protection claim (Count II of the initial Complaint). (iv) (Entered: 01/11/2019)
94 First AMENDED COMPLAINT against Defendants Michael R. Pompeo, The United States Department of State amending Complaint (Attorney Civil Case Opening), 1 , filed by Plaintiffs E. J. D.-B., Andrew Mason Dvash-Banks (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Lawson-Remer, Alexa) (Entered: 01/14/2019)
95 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Proposed Counts I, II, III 89 filed by Plaintiffs E. J. D.-B., Andrew Mason Dvash-Banks. (Attachments: # 1 Plaintiffs' Statement of Genuine Disputes of Material Fact in Opposition to Defendants' Motion for Partial Summary

Judgment, # 2 Declaration of Alexa Lawson-Remer, # 3 Exhibit 11, # 4 Exhibit 12, # 5 Exhibit 13, # 6 Exhibit 14, # 7 Exhibit 15, # 8 Exhibit 16, # 9 Memorandum of Evidentiary Objections in Opposition to Defendants' Motion for Partial Summary Judgment, # 10 Proposed Order)(Lawson-Remer, Alexa) (Entered: 01/14/2019)

01/14/2019

96 Excerpts from the Deposition of Terri Nathine Frances Day in Support of Plaintiffs Opposition to Defendants Motion for Partial Summary Judgment filed by Plaintiffs E. J. D.-B., Andrew Mason DvashBanks re: MEMORANDUM in Opposition to Motion,, 95 (LawsonRemer, Alexa) (Entered: 01/14/2019)

01/14/2019

97 Excerpts from the Deposition of Paul Peek, Defendants' 30(b)(6) Designee, in Support of Plaintiffs Opposition to Defendants Motion for Partial Summary Judgment filed by Plaintiffs E. J. D.-B., Andrew Mason Dvash-Banks re: MEMORANDUM in Opposition to Motion,, 95 (Lawson-Remer, Alexa) (Entered: 01/14/2019)

01/14/2019

98 Excerpts from the Deposition of Andrew Mason Dvash-Banks in Support of Plaintiffs Opposition to Defendants Motion for Partial Summary Judgment filed by Plaintiffs E. J. D.-B., Andrew Mason Dvash-Banks re: MEMORANDUM in Opposition to Motion,, 95 (Lawson-Remer, Alexa) (Entered: 01/14/2019)

01/14/2019

99 Excerpts from the Deposition of Margaret Ramsay in Support of Plaintiffs Opposition to Defendants Motion for Partial Summary Judgment filed by Plaintiffs E. J. D.-B., Andrew Mason DvashBanks re: MEMORANDUM in Opposition to Motion,, 95 (LawsonRemer, Alexa) (Entered: 01/14/2019)

01/14/2019

100 Excerpts from the Deposition of Larilyn Reffett in Support of Plaintiffs Opposition to Defendants Motion for Partial Summary Judgment filed by Plaintiffs E. J. D.-B., Andrew Mason Dvash-Banks re: MEMORANDUM in Opposition to Motion,, 95 (Lawson-Remer, Alexa) (Entered: 01/14/2019)

01/14/2019

101 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to to the Due Process Clause of the Fifth Amendment claim on behalf of both Plaintiffs and to the U.S.C. Section 1503 claim on behalf of Plaintiff E.J.D.B. 83 filed by Defendants Michael R. Pompeo, The United States Department of State. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Proposed Order)(Andrapalliyal, Vinita) (Entered: 01/14/2019)

01/14/2019

102 EXHIBIT Filed filed by Defendants Michael R. Pompeo, The United States Department of State. Exhibits to Decl. of Lisa Zeidner Marcus [101-3], as to MEMORANDUM in Opposition to Motion,, 101 . (Attachments: # 1 Defs' Opp. Ex. H, # 2 Defs' Opp. Ex. I, # 3 Defs' Opp. Ex. J, # 4 Defs' Opp. Ex. K, # 5 Defs' Opp. Ex. L, # 6 Defs' Opp. Ex. M, # 7 Defs' Opp. Ex. N, # 8 Defs' Opp. Ex. O, # 9 Defs' Opp. Ex. P)(Marcus, Lisa) (Entered: 01/14/2019)

01/14/2019

103 EXHIBIT Filed filed by Defendants Michael R. Pompeo, The United States Department of State. 2d Declaration of Lisa Zeidner Marcus, with exhibits, as to MEMORANDUM in Opposition to Motion,, 101 . (Attachments: # 1 Defs' Opp. Ex. Q, # 2 Defs' Opp. Ex. R, # 3 Defs' Opp. Ex. S, # 4 Defs' Opp. Ex. T)(Marcus, Lisa) (Entered: 01/14/2019)

01/15/2019

104 NOTICE OF ERRATA filed by Defendants Michael R. Pompeo, The United States Department of State. correcting MEMORANDUM in Opposition to Motion,, 101 Re: 101-1: Statement of Genuine Issues of Mat. Fact (Attachments: # 1 corrected document)(Marcus, Lisa) (Entered: 01/15/2019)

01/16/2019

105 AMENDED DOCUMENT filed by Defendants Michael R. Pompeo, The United States Department of State. Amendment to MEMORANDUM in Opposition to Motion,, 101 Amended Statement of Genuine Issues of Material Fact [101-1] (Marcus, Lisa) (Entered: 01/16/2019)

01/16/2019

106 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Exhibit 102 . The following error(s) was/were found: Title page with, case number and caption is missing. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (iv) (Entered: 01/16/2019)

01/16/2019

107 NOTICE OF ERRATA filed by Plaintiffs E. J. D.-B., Andrew Mason Dvash-Banks. correcting NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to to the Due Process Clause of the Fifth Amendment claim on behalf of both Plaintiffs and to the U.S.C. Section 1503 claim on behalf of Plaintiff E.J.D.-B. 83 (Attachments: # 1 Amended Declaration of Alexa Lawson-Remer, # 2 Amended Exhibit G - Part 1, # 3 Amended Exhibit G - Part 2, # 4 Amended Exhibit G-9, # 5 Amended Exhibit G-10, # 6 Amended Declaration of Alexa Lawson-Remer - Redline)(Lawson-Remer, Alexa) (Entered: 01/16/2019)

01/16/2019

108 APPLICATION for Extension of Time to File Summary Judgment Replies and Proposed Statements of Decision filed by Defendants Michael R. Pompeo, The United States Department of State. (Attachments: # 1 Proposed Order) (Marcus, Lisa) (Entered: 01/16/2019)

01/18/2019

109 ORDER GRANTING ONE BUSINESS DAY EXTENSION FOR FILING SUMMARY JUDGMENT REPLIES AND PROPOSED STATEMENTS OF DECISION 108 by Judge John F. Walter. The Parties shall file their summary judgment reply briefs, along with any other papers required to be filed simultaneously with their replies, by Tuesday, January 22, 2019. They shall file their Proposed Statements of Decision by Thursday, January 24, 2019. (iv) (Entered: 01/18/2019)

01/22/2019

110 RESPONSE IN SUPPORT of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to to the Due Process Clause of the Fifth Amendment claim on behalf of both Plaintiffs and to the U.S.C. Section 1503 claim on behalf of Plaintiff E.J.D.-B. 83 filed by Plaintiffs E. J. D.-B., Andrew Mason Dvash-Banks. (Attachments: # 1 Plaintiffs' Combined Statement of Facts, # 2 Declaration of Alexa LawsonRemer, # 3 Exhibit U, # 4 Memorandum of Evidentiary Objections in Response to Defendants' Statement of Genuine Disputes of Material Fact, # 5 Plaintiffs' Responses to Defendants' Evidentiary Objections)(Lawson-Remer, Alexa) (Entered: 01/22/2019)

01/22/2019

111 Excerpts from the Deposition of Paul Peek, Defendants' 30(b)(6) Designee, in Support of Plaintiffs' Reply in Further Support of Their Motion for Partial Summary Judgment filed by Plaintiffs E. J. D.-B., Andrew Mason Dvash-Banks re: Response in Support of Motion,, 110 (Lawson-Remer, Alexa) (Entered: 01/22/2019)

01/22/2019

112 REPLY in support of a motion NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Proposed Counts I, II, III 89 filed by Defendants Michael R. Pompeo, The United States Department of State. (Attachments: # 1 Combined Statement of Facts, # 2 Declaration 3d Marcus Decl ISO Defs Mot., # 3 Exhibit Defs' Ex. 17, # 4 Exhibit Defs' Ex. 18, # 5 Exhibit Defs' Ex. 19, # 6 Exhibit Defs' Ex. 20, # 7 Exhibit Defs' Ex. 21)(Andrapalliyal, Vinita) (Entered: 01/22/2019)

01/22/2019

113 Joint Exhibits Binder Filed in Connection with Plaintiffs' Motion for Partial Summary Judgment filed by Plaintiffs E. J. D.-B., Andrew Mason Dvash-Banks re: NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to to the Due Process Clause of the Fifth Amendment claim on behalf of both Plaintiffs and to the U.S.C. Section 1503 claim on behalf of Plaintiff E.J.D.-B. 83 (Attachments: # 1 Joint Exhibit Binder - Index, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C,

# 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G (Amended) Part 1, # 9 Exhibit G (Amended) Part 2, # 10 Exhibit G-1, # 11 Exhibit G-2, # 12 Exhibit G-3, # 13 Exhibit G-4, # 14 Exhibit G-5, # 15 Exhibit G-6, # 16 Exhibit G-7, # 17 Exhibit G-8, # 18 Exhibit G-9, # 19 Exhibit G-10, # 20 Plaintiffs' Exhibit H, # 21 Plaintiffs' Exhibit I, # 22 Plaintiffs' Exhibit J, # 23 Defendants' Exhibit I, # 24 Defendants' Exhibit J, # 25 Exhibit K, # 26 Exhibit L, # 27 Exhibit M, # 28 Exhibit N, # 29 Exhibit O, # 30 Exhibit P, # 31 Exhibit Q, # 32 Exhibit R, # 33 Exhibit S, # 34 Exhibit T, # 35 Exhibit U, # 36 Admin. Record Part 0, # 37 Admin. Record Part I, # 38 Admin. Record Part II, # 39 Admin. Record Part III, # 40 Admin. Record Part IV, # 41 Admin. Record Part V, # 42 Admin. Record Part VI, # 43 Admin. Record Part VII)(Lawson-Remer, Alexa) (Entered: 01/22/2019)

01/22/2019

114 Joint Declarations Binder Filed in Connection with Plaintiffs' Motion for Partial Summary Judgment filed by Plaintiffs E. J. D.-B., Andrew Mason Dvash-Banks re: NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to to the Due Process Clause of the Fifth Amendment claim on behalf of both Plaintiffs and to the U.S.C. Section 1503 claim on behalf of Plaintiff E.J.D.-B. 83 (Attachments: # 1 Joint Set of Declarations - Index, # 2 Amended Declaration of Alexa Lawson-Remer in Support of Plaintiffs' Motion for Partial Summary Judgment, # 3 Declaration of Andrew Dvash-Banks in Support of Plaintiffs' Motion for Partial Summary Judgment, # 4 Declaration of Lisa Zeidner Marcus in Support of Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment, # 5 Second Declaration of Lisa Zeidner Marcus in Support of Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment, # 6 Declaration of Alexa Lawson-Remer in Support of Reply in Support of Plaintiffs' Motion for Partial Summary Judgment)(Lawson-Remer, Alexa) (Entered: 01/22/2019)

01/22/2019

115 PARTIES' JT. SET OF DECLARATIONS IN SUPPORT OF, AND IN OPPOSITION TO, DEFS.' MOT. FOR PARTIAL SUM. J. re NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Proposed Counts I, II, III 89 filed by Defendants Michael R. Pompeo, The United States Department of State. (Attachments: # 1 Administrative Record Certification, # 2 Decl. of Lisa Zeidner Marcus, # 3 2d Decl. of Lisa Zeidner Marcus, # 4 Decl. of Alexa Lawson-Remer, # 5 3d Decl. of Lisa Zeidner Marcus)(Marcus, Lisa) (Entered: 01/22/2019)

01/22/2019

116 PARTIES' JT. SET OF EXHIBITS IN SUPPORT OF, AND IN OPPOSITION TO, DEFS.' MOT. FOR PARTIAL SUM. J. re NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Proposed Counts I, II, III 89 filed by Defendants Michael R. Pompeo,

The United States Department of State. (Attachments: # 1 Exhibit AR Part I, # 2 Exhibit AR Part II, # 3 Exhibit AR Part III, # 4 Exhibit AR Part IV, # 5 Exhibit AR Part V, # 6 Exhibit AR Part VI, # 7 Exhibit AR Part VII, # 8 Ex. 1, # 9 Ex. 2, # 10 Ex. 3, # 11 Ex. 4, # 12 Ex. 5, # 13 Ex. 6, # 14 Ex. 7, # 15 Ex. 8, # 16 Ex. 9, # 17 Ex. 10, # 18 Ex. 11, # 19 Ex. 12, # 20 Ex. 13, # 21 Ex. 14, # 22 Ex. 15, # 23 Ex. 16, # 24 Ex. 17, # 25 Ex. 18, # 26 Ex. 19, # 27 Ex. 20, # 28 Ex. 21)(Marcus, Lisa) (Entered: 01/22/2019)

01/24/2019

117 NOTICE OF LODGING filed re NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to to the Due Process Clause of the Fifth Amendment claim on behalf of both Plaintiffs and to the U.S.C. Section 1503 claim on behalf of Plaintiff E.J.D.B. 83 (Attachments: # 1 Proposed Statement of Decision Granting Plaintiffs' Motion for Partial Summary Judgment)(Lawson-Remer, Alexa) (Entered: 01/24/2019)

01/24/2019

118 NOTICE OF LODGING filed re NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Proposed Counts I, II, III 89 (Attachments: # 1 Proposed Statement of Decision Denying Defendants' Motion for Partial Summary Judgment)(Lawson-Remer, Alexa) (Entered: 01/24/2019)

01/24/2019

119 NOTICE OF LODGING filed re NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Proposed Counts I, II, III 89 (Attachments: # 1 Statement of Proposed Decision Granting Defendants' Motion for Partial Summary Judgment)(Andrapalliyal, Vinita) (Entered: 01/24/2019)

01/24/2019

120 NOTICE OF LODGING filed re NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to to the Due Process Clause of the Fifth Amendment claim on behalf of both Plaintiffs and to the U.S.C. Section 1503 claim on behalf of Plaintiff E.J.D.B. 83 (Attachments: # 1 Statement of Proposed Decision Denying Plaintiffs' Motion for Partial Summary Judgment)(Andrapalliyal, Vinita) (Entered: 01/24/2019)

01/24/2019

121 NOTICE OF ERRATA filed by Defendants Michael R. Pompeo, The United States Department of State. correcting Notice of Lodging, 119 (Attachments: # 1 Statement of Proposed Decision Granting Defendants' Motion for Partial Summary Judgment)(Andrapalliyal, Vinita) (Entered: 01/24/2019)

01/29/2019

122 MINUTES (IN CHAMBERS) ORDER TAKING UNDER SUBMISSION PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT [filed 1/7/19; Docket No. 83 ]; and ORDER TAKING UNDER SUBMISSION DEFENDANTS' MOTION FOR PARTIAL

SUMMARY JUDGMENT [filed 1/7/19; Docket No. 89 ] by Judge John F. Walter. The Court finds that this matter is appropriate for decision without oral argument. The hearing calendared for February 4, 2019 is hereby vacated and the matter is taken off calendar. The matter will be deemed submitted on the vacated hearing date and the clerk will notify the parties when the Court has reached a decision. (iv) (Entered: 01/29/2019)

02/21/2019

123 MINUTES (IN CHAMBERS) ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT [filed 1/7/19; Docket No. 83 ]; and ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT [filed 1/7/19; Docket No. 89 ] by Judge John F. Walter. Plaintiffs' and Defendants' Motions for Partial Summary Judgment are GRANTED in part and DENIED in part. The parties are ordered to meet and confer and agree on a joint proposed Judgment which is consistent with this Order. The parties shall lodge the joint proposed Judgment with the Court on or before February 28, 2019. (iv) (Entered: 02/21/2019)

02/28/2019

124 NOTICE OF LODGING filed re Order on Motion for Partial Summary Judgment,,,,, 123 (Attachments: # 1 Exhibit 1 - Plaintiffs' Proposed Judgment, # 2 Exhibit 2 - Defendants' Proposed Judgment)(LawsonRemer, Alexa) (Entered: 02/28/2019)

03/06/2019

125 JUDGMENT by Judge John F. Walter. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT JUDGMENT is entered in this matter as follows: Judgment on the 8 U.S.C. 1503(a) claim is hereby entered for Plaintiffs for the reasons stated in the Court's Order. (MD JS-6, Case Terminated). (iv) (Entered: 03/06/2019)

03/20/2019

126 [stricken] NOTICE OF MOTION AND MOTION for Attorney Fees , NOTICE OF MOTION AND MOTION for Costs against Michael R. Pompeo, The United States Department of StateRE: Judgment, 125 filed by Plantiffs E. J. D.-B., Andrew Mason DvashBanks. Motion set for hearing on 4/22/2019 at 01:30 PM before Judge John F. Walter. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Theodore Edleman - Part One, # 3 Declaration of Theodore Edelman - Part Two, # 4 Declaration of Theodore Edleman - Part Three, # 5 Exhibit A, # 6 Exhibit B, # 7 Exhibit C, # 8 Exhibit D, # 9 Exhibit E, # 10 Exhibit F, # 11 Exhibit G, # 12 Exhibit H, # 13 Exhibit I, # 14 Exhibit J, # 15 Exhibit K, # 16 Declaration of Aaron C. Morris, # 17 Declaration of Andrew Dvash-Banks, # 18 Proposed Order) (Lawson-Remer, Alexa) Modified on 3/21/2019 (sr). (Entered: 03/20/2019)

03/21/2019

127 Text Entry Order: Plaintiffs Motion for Attorneys Fees and Costs filed on March 20, 2019 (Docket No. 126 is STRICKEN for failure to comply with Local Rule 7-3 which requires the conference of counsel to take place at least seven days prior to the filing of the Motion and paragraph 5(b) of the Court's Standing Order which requires the Joint Statement to be filed 3 days after the Local Rule 7-3 conference. If Plaintiffs wish to re-file the Motion, counsel shall meet and confer in person by April 1, 2019. If the parties cannot resolve the issues raised in the Motion, within 3 days of the meet and confer, each party shall file a declaration setting forth the issues resolved at the conference and those issues that were not resolved with a detailed explanation of why those issues could not be resolved. If a Motion remains necessary, it shall not be filed until 2 days after each party files the declaration required by this Order. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (sr) TEXT ONLY ENTRY (Entered: 03/21/2019)

04/04/2019

128 DECLARATION of Jessica M. Klein re Text Only Scheduling Notice,,,, 127 filed by Plaintiffs E. J. D.-B., Andrew Mason DvashBanks. (Lawson-Remer, Alexa) (Entered: 04/04/2019)

04/04/2019

129 DECLARATION of Vinita B. Andrapalliyal re Text Only Scheduling Notice,,,, 127 filed by Defendants Michael R. Pompeo, The United States Department of State. (Andrapalliyal, Vinita) (Entered: 04/04/2019)

04/05/2019

130 Text Entry Order: The Court has reviewed the Declaration of Jessica M. Klein (Docket No. 128 ) and the Declaration of Vinita B. Andrapalliyal Re: Plaintiffs Motion for Attorneys Fees and Costs (Docket No. 129 ) and agrees to continue the dates as set forth in the declarations. Counsel shall file a Stipulation and Proposed Order consistent with their agreement.THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (sr) TEXT ONLY ENTRY (Entered: 04/05/2019)

04/08/2019

131 Joint STIPULATION to Continue deadline for Plaintiffs to Re-file their Motion for Attorneys' Fees and Costs from April 8, 2019 to sine die Re: Text Only Scheduling Notice, 130 filed by Defendants Michael R. Pompeo, The United States Department of State. (Attachments: # 1 Proposed Order)(Andrapalliyal, Vinita) (Entered: 04/08/2019)

04/09/2019

132 ORDER ADJOURNING DEADLINE FOR PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS 131 by Judge John F. Walter. The deadline for Plaintiffs to refile a motion for attorneys' fees and costs is adjourned sine die and; The Parties shall file a joint status report no later than May 10, 2019. (iv) (Entered: 04/09/2019)

05/06/2019

133 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Defendants Michael R. Pompeo, The United States Department of State. Appeal of Judgment, 125 . (Appeal Fee - Not Required for US Goverment.) (Andrapalliyal, Vinita) (Entered: 05/06/2019)

05/07/2019

134 NOTIFICATION from Ninth Circuit Court of Appeals of case number assigned and briefing schedule. Appeal Docket No. 19-55517 assigned to Notice of Appeal to 9th Circuit Court of Appeals 133 as to Defendant Michael R. Pompeo. (iv) (Entered: 05/08/2019)

05/09/2019

135 STATUS REPORT : JOINT STATUS REPORT Pursuant to the Courts Order of April 9, 2019 (ECF No. 132) filed by Defendants Michael R. Pompeo, The United States Department of State. (Marcus, Lisa) (Entered: 05/09/2019)

05/10/2019

136 TEXT ENTRY ORDER REQUIRING THE PARTIES SUBMIT/LODGE A PROPOSED ORDER RE JOINT STATUS REPORT AND REQUEST 135 . THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (sr) TEXT ONLY ENTRY (Entered: 05/10/2019)

05/10/2019

137 NOTICE OF LODGING filed NOTICE OF LODGING OF [PROPOSED] ORDER re Status Report 135 (Attachments: # 1 Proposed Order)(Raybuck, Rebekah) (Entered: 05/10/2019)

05/13/2019

138 ORDER TO DEFER CONSIDERATION OF PLAINTIFFS' APPLICATION FOR ATTORNEYS' FEES AND COSTS 137 by Judge John F. Walter. Further proceedings in connection with the Motion shall be deferred until after entry in the Action of a final, nonappealable judgment or until such other date as shall be ordered by the Court. The Parties shall file a joint status report with the Court within 5 business days after the United States Court of Appeals for the Ninth Circuit issues a mandate on the Appeal, which report shall include the parties respective positions regarding, and any proposed schedule for, further proceedings concerning the Motion. (iv) (Entered: 05/14/2019)

10/09/2020

139 MEMORANDUM from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals 133 filed by The United States Department of State, Michael R. Pompeo. CCA # 19-55517. The decision of the District Court is AFFIRMED. (iv) (Entered: 10/09/2020)

01/25/2021

140 MANDATE of Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals 133 , USCA Memorandum/Opinion/Order, 139 , CCA # 19-55517. The judgment of this Court, entered October 09, 2020, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule

41(a) of the Federal Rules of Appellate Procedure. (car) (Entered: 01/26/2021)

02/02/2021

141 STATUS REPORT (Joint) filed by Defendants Michael R. Pompeo, The United States Department of State. (Andrapalliyal, Vinita) (Entered: 02/02/2021)

 
 Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 1 of 25 Page ID #:1

1 SULLIVAN & CROMWELL LLP

Alexa M. Lawson-Remer (268855) 2 (lawsonr@sullcrom.com)

1888 Century Park East, Suite 2100 3 Los Angeles, CA 90067-1725

4

Telephone: (310) 712-6600 Facsimile: (310) 712-8800

5 Theodore Edelman (pro hoc vice application forthcoming) (edelmant@sullcrom.com)
6 Jessica Klein (pro hoc vice application forthcoming) (kleinj@sullcrom.com)
7 Scott E. Blair (pro hoc vice application forthcoming)

(blairs@sullcrom.com) 8 Alexandra H. Moss (302641)

(mossa@sullcrom.com)

9 125 Broad Street

10

New York, NY 10004-2498 Telephone: (212) 558-4000

Facsimile: (212) 558-3588

11

IMMIGRATION EQUALITY 12 Aaron C. Morris (pro hoc vice application forthcoming)

(amorris@immigrationequality.org) 13 40 Exchange Place

Suite 1300 14 New York, New York 10005-2744 15 Telephone: (212) 714-2904

16 Attorneys for Plaintiffs

17

18

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

19

20 ANDREW MASON DVASH-BANKS and
21 ETHAN JACOB DVASH-BANKS,

) ) ) ) COMPLAINT FOR

22

Plaintiffs,

) DECLARATORY AND

23

v.

) INJUNCTIVE RELIEF ) Docket No. 18-CV-_____

24 THE UNITED STATES DEPARTMENT OF )

STATE, and THE HONORABLE REX W. )

25 TILLERSON, Secretary of State,

)

26

Defendants.

)

)

27

28

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 2 of 25 Page ID #:2

PRELIMINARY STATEMENT 1
1. This action challenges a United States Department of State (“State 2
Department”) policy that hurts families and undermines the familial relationships 3
of same-sex parents. The agency’s policy unconstitutionally disregards the dignity 4
and sanctity of same-sex marriages by refusing to recognize the birthright 5
citizenship of the children of married same-sex couples. Plaintiffs are members of 6
a family who have suffered and continue to suffer harm because of the State 7
Department’s policy. The family includes Andrew Mason Dvash-Banks 8
(“Andrew”)—a United States citizen, who was born and raised in this country; 9
Andrew’s husband, Elad Dvash-Banks (“Elad”), an Israeli citizen; and their twin 10
sons, Ethan Jacob Dvash-Banks (“Ethan”) and Aiden James Dvash-Banks 11
(“Aiden”) (collectively, the “twins”). 12
2. Both Ethan and Aiden were conceived and born during Andrew’s 13
marriage to Elad. Andrew and Elad conceived the twins using their own sperm 14
and eggs from the same anonymous donor. They used Elad’s sperm to conceive 15
Ethan and Andrew’s sperm to conceive Aiden. A surrogate carried the twins to 16
term together in her womb and gave birth to them moments apart on September 16, 17
2016, in Canada. Andrew and Elad are the only parents Ethan and Aiden have, 18 and the only people Canadian law1 recognizes as Ethan and Aiden’s parents. 19
Accordingly, Andrew and Elad have been the twins’ legal parents from the day 20
they came into this world together. 21
3. At birth, both Ethan and Aiden qualified for United States citizenship 22
pursuant to Section 301(g) of the Immigration and Nationality Act (“INA”) 23
(codified at 8 U.S.C. § 1401(g)). That clause entitles a person born abroad to 24
citizenship at birth if one of that person’s married parents is a United States citizen 25

26 1

To the extent necessary to introduce or address issues of non-U.S. law in

27 connection with this action, this hereby constitutes Plaintiffs’ notice pursuant to

Federal Rule Civil Procedure 44.1 of reliance on foreign law.

28

2

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 3 of 25 Page ID #:3

1 and the other is a foreign national, as long as the citizen parent satisfies certain

2 statutorily prescribed periods of residency in the U.S. Andrew is a U.S. citizen

3 who has lived in the United States for over twenty-four years, and so clearly

4 satisfies the residency requirements of Section 301(g). Because Andrew and Elad

5 were married to each other when Ethan and Aiden were born, Ethan and Aiden

6 have been U.S. citizens since birth under Section 301(g).

7

4. The State Department, through the United States Embassy in Toronto,

8 Canada, however, failed to apply Section 301 to Ethan and Aiden. Instead, it

9 applied Section 309 of the INA (codified at 8 U.S.C. § 1409), a provision of the

10 statute which applies only to children born “out of wedlock.” Because the State

11 Department wrongly considered Ethan and Aiden to have been born “out of

12 wedlock,” it erroneously concluded that they could qualify for citizenship at birth

13 only pursuant to provisions applicable to the children of unwed parents. It then

14 incorrectly determined that the twins could acquire citizenship at birth only

15 pursuant to Section 309 and only if Andrew’s sperm had been used to conceive

16 them both.

17

5. Focusing improperly on the biological relationship between each child

18 and the parent who conceived him, the State Department then recognized Aiden’s

19 citizenship and denied Ethan’s. The State Department’s application of Section 309

20 instead of Section 301 is an unlawful, unconstitutional refusal to recognize the

21 validity of Andrew’s and Elad’s marriage and, therefore, that a child born to them

22 during their marriage is the offspring of that marriage. The fact that the State

23 Department’s policy has led children identified by their birth certificates as twins

24 with the same parents to have different nationalities listed on their passports

25 crystallizes both the indignity and absurdity of the policy’s effect.

26

6. The State Department’s failure to recognize and give effect to the

27 marriage between Andrew and Elad also denies Ethan the rights and privileges that

28 accompany U.S. citizenship, including the right to reside permanently in the U.S.,

3

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 4 of 25 Page ID #:4

1 the right to obtain a U.S. passport, and, when he is older, the right to run for

2 political office. Because the State Department does not recognize Ethan’s U.S.

3 citizenship, he cannot visit or live in the United States freely as other members of

4 his family can.

5

7. Andrew and Aiden may reside in the U.S. permanently because they

6 are U.S. citizens. Elad may legally reside in the U.S. permanently because he has a

7 family-based immigrant visa through his marriage to Andrew. The State

8 Department’s policy, however, renders Ethan the only member of his family

9 without the freedom to live in the U.S. permanently. The State Department’s

10 decision to withhold from Ethan the same rights granted to his twin brother means

11 that he will experience the indignity and stigma of unequal treatment imposed and

12 endorsed by the U.S. government. No governmental purpose could justify

13 imposing these indignities on a child of a valid marriage or restricting a family’s

14 freedom to live as a family—together.

15

8. The State Department’s policy is not only wrong and harmful, it is

16 also contrary to the INA as well as the guarantees of due process and equal

17 protection enshrined in the Fifth Amendment. To the extent that the State

18 Department’s policy was adopted before the Supreme Court’s recent precedents

19 guaranteeing equality to same-sex married couples and their families, its continued

20 enforcement violates that precedent. The Supreme Court has made clear that the

21 Constitution requires that same-sex marriages receive the same legal effects and

22 respect as opposite-sex marriages. The State Department’s policy, or at least its

23 application to Ethan, violates that mandate by restricting eligibility for citizenship

24 under Section 301 of the INA solely to children whose parents are in opposite-sex

25 marriages. These violations create real and significant hardships for the Dvash-

26 Banks family and others like them. Soon, Ethan will be old enough to realize that

27 the U.S. government views him as an alien with no enforceable connection to his

28 father or brother, and discriminates against him based on the sex and sexual

4

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 5 of 25 Page ID #:5

1 orientation of his parents.

2

9. The State Department’s policy is arbitrary and capricious and serves

3 no rational, legitimate, or substantial governmental interest. The State

4 Department’s policy drives families apart by treating the children of the same

5 married parents differently depending upon which father’s sperm was used during

6 fertilization. The threat that this policy poses to family unity confirms that it is

7 contrary to the legislative intent of the INA, which enshrines the preservation of

8 the family unit as a paramount consideration. Neither the INA nor the U.S.

9 Constitution permits the State Department’s unlawful policy to stand.

10

10. Plaintiffs bring this action both to challenge the State Department’s

11 policy as well as to request that this Court, pursuant to Section 360 of the INA

12 (codified at 8 U.S.C. § 1503), declare that Ethan is a U.S. citizen at birth.

13

THE PARTIES

14

11. Plaintiff Andrew is a 36-year-old citizen of the United States. He was

15 born in Santa Monica, California, and currently resides with his husband and their

16 children in Los Angeles, California.

17

12. Plaintiff Ethan is one year old. He was born in Mississauga, Ontario,

18 Canada, and currently resides with his parents Andrew and Elad and twin brother

19 Aiden in Los Angeles—although, as explained below, Ethan’s permission to

20 remain in the U.S. recently has expired.

21

13. Andrew brings this action in his individual capacity and on behalf of

22 his son Ethan.

23

14. Defendant the State Department is a department of the government of

24 the United States of America, whose headquarters office is located at the

25 Department of State, 2201 C St. NW, Washington, D.C. 20520. The State

26 Department oversees all U.S. embassies and sets the policy U.S. embassy

27 employees follow in determining whether to recognize the citizenship of the

28 children of U.S. citizens.

5

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 6 of 25 Page ID #:6

1

15. Defendant The Honorable Rex Tillerson is the Secretary of State,

2 whose office is located at the Department of State, 2201 C St. NW, Washington,

3 D.C. 20520, and is being sued in his official capacity.

4

JURISDICTION AND VENUE

5

16. This Court has subject matter jurisdiction pursuant to 28 U.S.C.

6 § 1331.

7

17. This Court is authorized to issue a declaratory judgment pursuant to

8 28 U.S.C. §§ 2201 and 2202.

9

18. This Court is authorized to issue a judgment and injunctive relief

10 pursuant to 5 U.S.C. § 702.

11

19. This Court is authorized to make a de novo determination and

12 judgment of citizenship pursuant to 8 U.S.C. § 1503(a).

13

20. Venue in this district is proper pursuant to 28 U.S.C. § 1391(e).

14

STATUTORY AND REGULATORY BACKGROUND

15

A. United States Citizenship at Birth

16

21. There are two pathways to become a United States citizen at birth:

17 one pursuant to the Constitution and another by statute, the INA. The “Citizenship

18 Clause” of the Fourteenth Amendment of the Constitution provides, in part, that

19 anyone born in the United States is a citizen at birth. Under the INA, persons born

20 outside the United States may be considered citizens at birth under certain

21 statutorily prescribed circumstances. If a person born outside the United States

22 does not acquire citizenship at birth, that person can acquire citizenship only

23 through naturalization, and therefore can never be eligible for the presidency as

24 birthright citizens are.

25

22. The provisions governing eligibility for U.S. citizenship at birth by

26 individuals born outside the United States are set forth in Sections 301 through 309

27 of the INA. Section 301 is titled “Nationals and citizens of United States at birth.”

28 Under Section 301(g), a baby born abroad is a U.S. citizen at birth when (1) one of

6

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 7 of 25 Page ID #:7

1 the child’s parents is a married United States citizen and (2) the U.S. citizen parent

2 lived in the U.S. for at least five years, at least two of which were after the parent’s

3 fourteenth birthday.

4

23. Section 309 is titled “Children born out of wedlock,” and its

5 provisions explicitly apply only to a person “born out of wedlock.” The

6 requirements for citizenship at birth under that provision differ substantially from

7 those in Section 301, which has long been regarded as applicable to anyone whose

8 parents were lawfully married when the child was born.

9

24. For unwed fathers, Section 309(a) specifies, in part, that certain

10 provisions of Section 301—including Section 301(g)—“shall apply as of the date

11 of birth to a person born out of wedlock if—(1) a blood relationship between the

12 person and the father is established by clear and convincing evidence.” In

13 addition, Section 309(a) requires that, for citizenship under Section 301 to be

14 available to an unwed father’s child, the father must have (2) acquired U.S.

15 nationality by the time the person seeking citizenship was born, (3) agreed in

16 writing to provide financial support to that person until the age of 18, and (4) while

17 the person is under 18 years old, (a) legitimated the person under the law of that

18 person’s residence or domicile, (b) acknowledged paternity in writing under oath,

19 or (c) had paternity established by a court of competent jurisdiction.

20

25. As a result of the different requirements for the children of wed and

21 unwed U.S. citizens, it is possible for people to qualify for citizenship at birth

22 under Section 301 even if they would not qualify under Section 309. Thus, the

23 determination of whether a child is born in or out of wedlock can be dispositive of

24 the ultimate question of whether or not a child acquired U.S. citizenship at birth.

25

26. Since its enactment in 1952, the INA has neither included nor been

26 amended to include definitions of the terms “parent” and “person,” as used in

27 Section 301, or the terms “mother,” “father,” and “out of wedlock,” as used in

28 Section 309.

7

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 8 of 25 Page ID #:8

1

27. Before and after the enactment of the INA, the majority of U.S. states

2 have followed the common law in presuming that every child born in wedlock is

3 the legitimate offspring of the child’s married parents. In general, including in

4 California, that presumption applies even when only one spouse is the child’s

5 biological parent. The structure of the INA effectively codifies the common law

6 presumption of parentage for married couples by making Section 301 applicable to

7 any person except for children who are born “out of wedlock.”

8

28. Congress has made clear that the legislative intent behind the INA

9 should be construed liberally because the INA was designed to make it easier—not

10 harder—for families of citizens and non-citizens to stay together. According to

11 Congress, “the legislative history of the Immigration and Nationality Act clearly

12 indicates that the Congress intended to provide for a liberal treatment of children

13 and was concerned with the problem of keeping families of United States Citizens

14 and Immigrants united.” H.R. Rep. 85-1199, at 2020 (1957). Congress has also

15 declared that “the statutory language makes it clear that the underlying intent [is] to

16 preserve the family unit upon immigration to the United States.” Id.

17

29. In amending the INA, Congress recognized that the hardships faced

18 by families fractured along citizenship lines were overwhelmingly greater than any

19 harm that could come from the liberal treatment of children with respect to

20 citizenship.

21

B. The Constitutional Rights of Same-Sex Couples

22

30. As the Supreme Court has recognized, same-sex couples have long

23 been subjected to illegal institutional discrimination and social stigmatization. The

24 Supreme Court’s precedent makes clear that the Constitution compels equal

25 protection and recognition of, and respect for, the rights of same-sex spouses,

26 including their right to have autonomy over the most personal and intimate of

27 choices—decisions about starting a family and sustaining a partnership in which to

28 raise and nurture a child. Accordingly, the State Department must recognize the

8

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 9 of 25 Page ID #:9

1 “equal dignity of same-sex marriages.” United States v. Windsor, 133 S. Ct. 2675,

2 2693 (2013).

3

31. After Windsor overturned the statute excluding same-sex marriages

4 from federal recognition, the federal government announced that it would

5 recognize same-sex marriages for immigration purposes. See Statement from

6 Homeland Security Secretary Janet Napolitano on July 1, 2013, available at

7 https://www.uscis.gov/family/same-sex-marriages (“As a general matter, the law

8 of the place where the marriage was celebrated determines whether the marriage is

9 legally valid for immigration purposes. Just as [the United States Citizenship and

10 Immigration Services] applies all relevant laws to determine the validity of an

11 opposite-sex marriage, we will apply all relevant laws to determine the validity of

12 a same-sex marriage.”).

13

32. Following Windsor, the Supreme Court overturned state laws that

14 barred same-sex couples from marrying as inconsistent with the Constitution’s

15 guarantees of due process and equal protection, including rights central to an

16 individual’s autonomy and dignity, such as one’s choice of intimate life partner.

17 Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

18

33. The Court further warned that failure to recognize same-sex marriages

19 “harm[s] and humiliate[s] the children of same-sex couples.” Id. at 2590. The

20 Court also recognized that “[w]ithout the recognition, stability, and predictability

21 marriage offers, children suffer the stigma of knowing their families are somehow

22 lesser.” Id.

23

34. In Pavan v. Nathaniel Smith, the Supreme Court held that married

24 couples must receive the same “constellation of benefits . . . linked to marriage,”

25 regardless of whether the marriage is between spouses of the same or opposite

26 sexes. 137 S. Ct. 2075, 2077 (2017). Those benefits include the legal recognition

27 that same-sex spouses may both be the parents of a child born during their

28 marriage, even if only one spouse is the child’s biological parent.

9

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 10 of 25 Page ID #:10

C. The State Department’s Restrictive Classification of Eligible

1

Children

2

35. The INA does not define or limit the class of persons born in wedlock

3 who are eligible for citizenship at birth pursuant to Section 301. Nevertheless, the

4 State Department is restricting the class to exclude all children of same-sex

5 married couples.

6

36. The State Department has imposed that policy by inserting a

7 definition of terms into an Appendix to the Foreign Affairs Manual (“FAM”),

8 available at https://fam.state.gov/. Specifically, 1140 Appendix E of the FAM,

9 titled “‘IN WEDLOCK’ AND ‘OUT OF WEDLOCK,’” includes subsection (c),

10 which states that “[t]o say a child was born ‘in wedlock’ means that the child’s

11 biological parents were married to each other at the time of the birth of the child.”

12 (A copy of the relevant portion of the appendix is appended to this Complaint at

13 Exhibit A.)

14

37. 1140 Appendix E of the FAM has never been submitted to notice and

15 comment rulemaking. However, it forms the basis for the State Department’s

16 conclusion that the children were born out of wedlock.

17

38. That definition has the effect of limiting birthright citizenship to

18 children who are biologically related to a U.S. citizen parent, which the United

19 States Court of Appeals for the Ninth Circuit has rejected in two separate

20 decisions. See Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005) (citing

21 Scales v. INS, 232 F.3d 1159, 1166 (9th Cir. 2000)).

22

FACTUAL ALLEGATIONS

23

A. The Dvash-Banks Family

24

39. Andrew is a U.S. citizen who was born, raised, and has lived as an

25 adult in the United States. He was born in 1981 in Santa Monica, California,

26 where he lived continuously with his family from birth through the time of his high

27 school graduation in 1999. Andrew’s parents were both born and raised in

28 Toronto, Canada, and as a result, Andrew is also a citizen of Canada.

10

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 11 of 25 Page ID #:11

1

40. After graduating from high school, Andrew attended the University of

2 California at Santa Barbara, graduating with a bachelor’s degree in June 2003.

3 Andrew then moved to New York City, where he lived for three years while

4 working for a translation company. In 2005, Andrew moved to Israel; and in July

5 2007, he enrolled in a master’s program at Tel Aviv University. In March of 2008,

6 Andrew met Elad Dvash at a holiday party at Tel Aviv University.

7

41. Elad is an Israeli citizen, born in Ramat Gan, Israel, on March 20,

8 1985. Elad had lived in Israel for his entire life when he met and began dating

9 Andrew. Thereafter, the two moved to Toronto, Canada, where they were married

10 by a judge on August 19, 2010. (A copy of Elad and Andrew’s marriage certificate

11 is appended to this Complaint at Exhibit B.)

12

42. Then, as now, Canadian law recognizes the validity and equality of

13 same-sex marriages. Although Andrew and Elad wanted to move to the United

14 States to start their family in California, where four of Andrew’s five siblings live

15 with their families, at the time of their marriage in August 2010, the Defense of

16 Marriage Act had not yet been ruled unconstitutional by the Supreme Court. The

17 Defense of Marriage Act precluded the United States government from

18 recognizing the validity of Andrew and Elad’s marriage, and therefore barred Elad

19 from obtaining permanent residence through his marriage to Andrew.

20

43. Unlike the U.S. government, the Canadian government recognized the

21 validity of Andrew and Elad’s marriage. As a result, Elad could become a legal

22 resident of Canada on the basis of his marriage to Andrew. Thus, Andrew and

23 Elad decided to move to Toronto, Canada to begin building their lives—and

24 family—as a married couple.

25

44. In the summer of 2015, Andrew and Elad selected an anonymous egg

26 donor to enable them to have and raise children as a couple.

27

45. In February 2016, the surrogate became pregnant with one embryo

28 created using sperm from Andrew and one embryo created using sperm from Elad.

11

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 12 of 25 Page ID #:12

1 Andrew and Elad intended to be the sole parents of the resulting children.

2

46. On September 16, 2016, Andrew and Elad’s children—Ethan and

3 Aiden—were born in Mississauga, a city in Ontario, Canada. Andrew and Elad,

4 and only Andrew and Elad, are listed as the parents on both of their sons’ birth

5 certificates, and recognized as their sons’ parents under Canadian law.

6

47. Ethan and Aiden are part of the same family, with the same parents,

7 who are married to each other now, as they were at the time both children were

8 born. In terms of their relationship to Andrew, the only distinction between Ethan

9 and Aiden is that sperm from Andrew’s husband instead of from Andrew was used

10 to conceive Ethan. That distinction should make no difference to Ethan’s

11 eligibility for U.S. citizenship at birth because Ethan demonstrably was not born

12 out of wedlock. But to the State Department, this is all the difference in the world.

13

B. The Application of the State Department’s Policy to the Dvash-

Banks Family 14

48. Shortly after Ethan and Aiden were born, their parents took them to

15

the U.S. consulate in Toronto to apply for their Consular Reports of Birth Abroad

16

and U.S. passports. Andrew and Elad brought both boys’ birth certificates, their

17

marriage certificate, declarations of parentage, and payment for the application

18

fees.

19

49. After hours of waiting, Andrew and Elad finally spoke with a consular

20

official. Notwithstanding Andrew’s U.S. citizenship, his status as Elad’s husband,

21

and his status as a parent of both Ethan and Aiden, the official informed Andrew

22

and Elad that further questions would be required. The official then began to

23

inquire into the highly personal details of how Andrew and Elad—a married

24

couple—had children together. The official asked how the spouses had come to

25

create fertilized embryos with their sperm, the identity of the egg donor, and which

26

spouse had provided sperm for which child. Andrew and Elad had planned to keep

27

the genetic identity of their children private so that both children would feel

28

equally connected to each of their parents. In the hope of ensuring that the U.S.

12

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 13 of 25 Page ID #:13

1 government would recognize their children’s citizenship, however, they disclosed

2 the genetic links they had to Ethan and Aiden.

3

50. When Andrew and Elad explained that Ethan was conceived using

4 Elad’s sperm, the consular official required that the children undergo a DNA test to

5 determine whether either child was genetically linked to Andrew. She stated that

6 without the biological link, neither child would qualify for U.S. citizenship at birth.

7 The official did not identify any statutory, regulatory, or other authority supporting

8 this demand.

9

51. Andrew and Elad left the consulate shocked, humiliated, and hurt.

10 They were also deeply offended by the ramifications of what they had heard. The

11 U.S. government did not recognize Andrew as the parent of his son Ethan,

12 regardless of what Ethan’s birth certificate and applicable Canadian law said, and

13 regardless of the daily reality of Andrew and Ethan’s parent-child relationship.

14

52. Andrew and Elad submitted DNA tests for both Ethan and Aiden to

15 the consulate. Soon thereafter, Andrew and Elad received two letters in the mail,

16 both dated March 2, 2017. One letter granted Aiden’s application for his Consular

17 Report of Birth Abroad and a U.S. passport. The other letter (the “Letter”) notified

18 Andrew that Ethan’s application had been denied. (A copy of this letter is

19 appended to this Complaint at Exhibit C.) It was then that Andrew and Elad

20 finally realized that although they were the legal parents of two boys who were

21 born on the same day, minutes apart from each other, the State Department

22 considered only one of their boys to be a U.S. citizen. To the U.S. government,

23 Ethan was an alien.

24

53. The Letter denying Ethan’s application, addressed to Andrew, stated

25 that “after careful review of the evidence you submitted with your child’s

26 application, it has been determined that his claim to U.S. citizenship has not been

27 satisfactorily established, as you are not his biological father.” The Letter went on

28 to reference the “Immigration and Nationality Act (INA) of 1952,” which

13

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 14 of 25 Page ID #:14

1 according to the Letter “requires among other things, a blood relationship between

2 a child and the U.S. citizen parent in order for the parent to transmit U.S.

3 citizenship.” The letter did not include any further citation to more specific

4 statutory provisions or authority.

5

54. The Letter provided Andrew and Ethan no mechanism to appeal the

6 State Department’s denial, and merely suggested Andrew “contact the nearest

7 office of U.S. Citizenship and Immigration Services regarding [Ethan’s]

8 citizenship status.”

9

55. Andrew reached out to his representative, Congressman Ted Lieu, for

10 assistance, and Congressman Lieu’s office contacted the State Department. In an

11 October 2, 2017 letter to Congressman Lieu, the State Department’s Office of

12 American Citizen Services and Crisis Management also failed to cite any statute or

13 regulation to explain the reasons for the Dvash-Banks family’s situation and the

14 denial of a Consular Report of Birth Abroad and U.S. passport for Ethan. (A copy

15 of this letter is appended to this Complaint as Exhibit D.) The State Department’s

16 Office of American Citizen Services and Crisis Management merely suggested that

17 Andrew and Elad find “an immigration lawyer who can help explain the avenues”

18 through which Ethan could “acquire citizenship through naturalization,” or that

19 they should “consider applying for a certificate of citizenship directly from

20 USCIS.”

21

56. The State Department’s Office of American Citizen Services and

22 Crisis Management did not explain how, or why, USCIS would recognize that

23 Ethan had acquired citizenship at birth when the consulate had not. Furthermore,

24 the USCIS application for a certificate of citizenship requires the applicant to have

25 “at least one biological or adoptive U.S. citizen parent.” Instructions for

26 Application for Certificate of Citizenship, OMB No. 1615-0057. Because Ethan

27 does not have at least one biological or adoptive U.S. citizen parent, Andrew and

28 Elad could not complete an application for citizenship on Ethan’s behalf that

14

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 15 of 25 Page ID #:15

1 would satisfy the requirements of USCIS.

2

57. The denial of Ethan’s Consular Report of Birth Abroad meant that

3 Ethan was denied a U.S. passport as well. This has caused difficulties and

4 humiliation for the Dvash-Banks family. After the Supreme Court’s decision in

5 Windsor reversed the Defense of Marriage Act, ensuring that Andrew and Elad’s

6 marriage would be recognized and respected in the U.S., Andrew and Elad decided

7 to fulfill their long-held hope of moving to California so that they could live near

8 Andrew’s family, and moved to Los Angeles on June 24, 2017.

9

58. Andrew, Elad, Ethan, and Aiden all live in Los Angeles, California

10 together. Both Andrew and Elad work in Los Angeles and they have no intention

11 of moving from Los Angeles. They must keep their home in Toronto as a

12 contingency because although Andrew and Aiden both have U.S. Citizenship and

13 Elad has permanent residency in the U.S., immigration officials would allow Ethan

14 to enter the United States only on a tourist visa. The stay authorized upon that

15 entry expired on December 23, 2017. All of Andrew and Elad’s professional,

16 personal, and familial commitments are in constant jeopardy of being undone if the

17 Department of Homeland Security deports Ethan.

18

59. Given the severity of these consequences, Andrew and Elad have

19 submitted an application for a green card on Ethan’s behalf to minimize the risk of

20 deportation proceedings and having to face the choice of staying together as a

21 family or staying in this country. However, Andrew and Elad should not have to

22 bear these additional burdens simply to ensure they can continue to raise their sons

23 together in this country. Their current need to do so highlights the inequality and

24 indignity imposed by the State Department’s classification of children born to

25 parents in same-sex marriages as children born out of wedlock.

26

60. Andrew and Elad have also suffered indignity and emotional pain

27 because the U.S. government recognizes neither their marriage nor their parental

28 rights in determining whether their children were born in or out of wedlock.

15

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 16 of 25 Page ID #:16

1 According to the U.S. government, Andrew and Elad could never have children in

2 wedlock because they could not both be married to each other and be the biological

3 parents of the same child. As a result, the U.S. government is undermining,

4 disrespecting, and rendering unequal the intimate relationship between same-sex

5 married couples and the children they have and raise together within family units

6 founded on the sanctity of marriage. They also worry about the obvious inequity

7 the State Department’s decision causes between their twin sons, the impact on

8 Ethan and Aiden of their different citizenship status and the awareness that the

9 U.S. government considers them illegitimate notwithstanding their parents’ valid

10 marriage.

11

C. The State Department Erroneously Deemed Ethan to Have Been

Born “Out of Wedlock”

12

61. As alleged herein, Ethan acquired U.S. citizenship at birth under

13

Section 301(g) of the INA. Pursuant to Section 301(g), a U.S. citizen at birth

14

includes:

15

a person born outside the geographical limits of the United States and

16

its outlying possessions of parents, one of whom is an alien, and the

other a citizen of the United States who, prior to the birth of such

17

person, was physically present in the United States or its outlying

possessions for a period or periods totaling not less than five years, at

18

least two of which were after attaining the age of fourteen years.

19 62. Because Ethan is not a child born out of wedlock, his citizenship
20 status is governed by Section 301(g). Ethan clearly satisfies the criteria for U.S.
21 citizenship at birth under Section 301(g). That is so because his father Andrew has
22 lived in the U.S. for most of his life and clearly satisfies the statutory residence
23 requirements of physical presence in the U.S. for no less than five years, including
24 at least two after turning fourteen years old.
25 63. The only way that Ethan would not be a citizen at birth under the INA
26 is if Ethan were a child born out of wedlock, as the State Department has deemed
27 him. That determination was erroneous both as a matter of statutory interpretation
28 and as a matter of the Constitution’s guarantees of due process and equal
16

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 17 of 25 Page ID #:17

1 protection.

2

D. The State Department’s Policy Unconstitutionally Discriminates

on the Basis of Sex and Sexual Orientation 3

64. The decision to marry—like the decision to have children—is one of

4

the most deeply personal choices one can make. For the liberty guaranteed by the

5

Constitution to be meaningful and effective, individuals must be able to make these

6

fundamental and personal life choices freely, with dignity and without unwarranted

7

consequences for the individual and his family. Accordingly, the Constitution’s

8

guarantees of due process and equal protection apply with full force to an

9

individual’s fundamental right to marry the spouse of his or her own choosing,

10

including a spouse of the same sex. The Constitution requires not only recognition

11

and protection of the right to enter into same-sex marriages, but also affords same-

12

sex marriages the full constellation of legal rights and benefits—including dignity

13

and respect—that have traditionally flowed from opposite-sex marriages.

14

65. The State Department’s policy and its application to Ethan are

15

unconstitutional because they violate Ethan’s and Andrew’s rights to due process

16

and equal protection under the Fifth Amendment of the Constitution. As discussed

17

above, the State Department refuses to apply Section 301(g) of the INA to Ethan

18

based on its erroneous and demeaning classification of him as a child born out of

19

wedlock. Apparently on that basis alone, it refuses to recognize Ethan’s

20

citizenship.

21

66. Under the State Department’s policy, citizenship through Section 301

22

is presumptively available to any person the State Department deems born “in

23

wedlock”—a class the agency has construed to consist exclusively of children

24

conceived and carried by women who are married to men.

25

67. Nothing in the INA or the Constitution permits the State Department’s

26

limitation of birthright citizenship under Section 301 to the children of U.S.

27

citizens in opposite-sex marriages. The State Department’s requirement is

28

unfounded and ensures unconstitutionally unequal treatment of the children of

17

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 18 of 25 Page ID #:18

1 same-sex married couples.

2

68. The government has provided no rationale for this discriminatory

3 policy. Furthermore, there is no legitimate governmental purpose that could justify

4 limiting birthright citizenship in this way. To the contrary, such an approach

5 undermines the congressionally established, legitimate, and important government

6 purposes that underlie the INA itself. For example, the State Department’s

7 approach ultimately makes it harder, not easier, for families like the Dvash-

8 Bankses to stay together. This undermines the INA’s statutory intent of

9 “provid[ing] for a liberal treatment of children and . . . keeping families of United

10 States Citizens and Immigrants united.” H.R. Rep. 85-1199, at 2020 (1957).

11

69. In amending the INA, Congress recognized that no harm could come

12 from the liberal treatment of children with respect to citizenship, and that the

13 consequences of such treatment would fulfill “the clearly expressed legislative

14 intention to keep together the family unit wherever possible.” Id. at 2021.

15

70. Although the State Department’s policy may in theory apply to

16 marriages between spouses of opposite sexes, its overwhelming effect is to deprive

17 spouses in same-sex marriages—and their children—of fundamental rights and

18 equal dignity as citizens under the law. The fact that some opposite-sex married

19 couples may use assisted reproductive technology to conceive a child does not

20 change the discriminatory nature or harmful effects of the government’s policy on

21 same-sex couples.

22

71. In addition to discriminating against Ethan, the State Department’s

23 policy discriminates against Andrew by denying him the ability to transmit

24 citizenship to a child conceived with his husband’s sperm, born during their

25 marriage, and raised as a child of that marriage. This right is available to similarly

26 situated citizens—i.e., U.S. citizen women who are married to foreign national

27 men. A woman who is a U.S. citizen has the right to confer citizenship on a child

28 conceived with her husband’s sperm, born during their marriage and raised as a

18

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 19 of 25 Page ID #:19

1 child of that marriage, even if she did not conceive or carry the child. Therefore, in

2 denying Andrew this right, the State Department’s policy also discriminates

3 against him based on his sex and/or that of his spouse, Elad.

4

COUNT I – DECLARATORY JUDGMENT

THE STATE DEPARTMENT’S POLICY VIOLATES THE DUE PROCESS

5

GUARANTEE OF THE FIFTH AMENDMENT

6

72. Plaintiffs repeat, reallege, and incorporate by reference the allegations

7 contained in paragraphs 1 through 71 as if fully set forth herein.

8

73. The Fifth Amendment of the Constitution prohibits the federal

9 government from depriving individuals of their rights without due process of law.

10

74. The Due Process Clause of the Fifth Amendment prohibits the federal

11 government from depriving any person of life, liberty, or property without due

12 process of law, as well as from depriving any person of equal protection under the

13 law.

14

75. Section 301 of the INA entitles U.S. citizens to confer citizenship at

15 birth on their children born abroad in wedlock. The INA does not require U.S.

16 citizens to be in opposite-sex marriages to confer citizenship under Section 301.

17 Nor does the INA require a child’s biological parents to be married to each other

18 for the child to be considered born in wedlock, and therefore eligible for

19 citizenship under Section 301. The INA merely requires that the child is not born

20 out of wedlock.

21

76. Defendants have violated and continue to violate the Fifth

22 Amendment of the United States Constitution by enforcing a policy that excludes

23 U.S. citizens in same-sex marriages from conferring citizenship pursuant to

24 Section 301, while restricting access to citizenship under that provision to the

25 children of opposite-sex married couples. Defendants’ policy has deprived and

26 continues to deprive Plaintiffs of their rights to acquire and confer citizenship at

27 birth pursuant to INA Section 301. As a result of Defendants’ policy, Plaintiffs

28 have suffered, and will suffer, irreparable harm to their protected interest in

19

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 20 of 25 Page ID #:20

1 conferring, and having recognized, Ethan’s U.S. citizenship.

2

77. There is no rational, legitimate, or substantial government interest

3 served by denying the children of same-sex married couples access to citizenship

4 at birth pursuant to Section 301 of the INA based on the sex and/or sexual

5 orientation of the child’s citizen-parent. Nor is there any rational, legitimate, or

6 substantial government interest served by denying U.S. citizens in same-sex

7 marriages the right to confer citizenship on children born abroad during their

8 marriage based on the citizen’s sex and/or sexual orientation or exercise of the

9 protected right to enter into a same-sex marriage. Defendants have offered no

10 justification for precluding Andrew from conferring on Ethan citizenship pursuant

11 to Section 301.

12

78. As a result of Defendants’ arbitrary, discriminatory, and unlawful

13 implementation and enforcement of its policy prohibiting U.S. citizens in same-sex

14 marriages from conferring U.S. citizenship on their children born in wedlock

15 outside the United States, Plaintiffs have suffered injuries and will suffer further

16 irreparable harm to their constitutional rights under the Fifth Amendment if the

17 State Department’s policy is not declared unconstitutional and enjoined.

18

79. Plaintiffs have no adequate remedy at law.

19

COUNT II – DECLARATORY JUDGMENT

THE STATE DEPARTMENT’S POLICY VIOLATES THE 20 CONSTITUTIONAL GUARANTEE OF EQUAL PROTECTION UNDER

THE LAW 21

80. Plaintiffs repeat, reallege, and incorporate by reference the allegations

22

contained in paragraphs 1 through 71 as if fully set forth herein.

23

81. The Due Process Clause of the Fifth Amendment prohibits the federal

24

government from denying persons the equal protection of its laws.

25

82. Under the State Department’s interpretation of Sections 301 and 309,

26

no child could be considered born in wedlock to spouses in same-sex marriages,

27

even if the child’s parents are married to each other and are the sole individuals

28

identified on the child’s birth certificate as his or her parents.

20

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 21 of 25 Page ID #:21

1

83. The State Department has offered no rationale to explain why it bars

2 same-sex parents from relying upon Section 301.

3

84. The State Department’s interpretation has a disparate impact on same-

4 sex married couples, because under that policy they can never confer upon a child

5 U.S. citizenship pursuant to Section 301.

6

85. Defendants’ Letter, denying the application for a Consular Report of

7 Birth Abroad by deeming Ethan to be a child born out of wedlock, discriminates

8 against Ethan and Andrew based on sex and sexual orientation, without lawful

9 justification, in violation of the Equal Protection component of the Due Process

10 Clause of the Fifth Amendment.

11

86. Defendants’ above-described discrimination against people who

12 desire to have an intimate relationship with a partner of the same sex—a discrete

13 and insular group with a long history of discrimination and degradation including

14 by those acting under the color of law—does not advance any rational, legitimate,

15 or substantial governmental interest.

16

87. As a result of Defendants’ implementation and enforcement of its

17 discriminatory policy of excluding the children of same-sex married couples from

18 qualifying for citizenship at birth as children born in wedlock outside the United

19 States, Plaintiffs have suffered injuries and will suffer further irreparable harm to

20 their constitutional rights under the Fifth Amendment if the State Department’s

21 policy is not declared unconstitutional and enjoined.

22

88. Plaintiffs have no adequate remedy at law.

23

COUNT III – ADMINISTRATIVE PROCEDURE ACT

24

89. Plaintiffs repeat, reallege, and incorporate by reference the allegations

25 contained in paragraphs 1 through 71 as if fully set forth herein.

26

90. Plaintiffs have suffered a “legal wrong because of agency action.”

27 5 U.S.C. § 702.

28

91. The Administrative Procedure Act bars any agency action that is

21

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 22 of 25 Page ID #:22

1 “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

2 law.” 5 U.S.C. § 706(2)(A).

3

92. Defendants’ interpretation of Sections 301 and 309, as embodied in

4 the FAM, conflicts with the clear language and statutory purpose of the INA. This

5 interpretation, published without any public comment, is arbitrary, capricious, and

6 not in accordance with the INA.

7

93. Plaintiffs have suffered and continue to suffer legal wrongs because of

8 the U.S. Embassy’s decision to deny the Consular Report of Birth Abroad

9 application submitted on behalf of Ethan.

10

94. Plaintiffs have exhausted all administrative remedies available to them

11 as of right.

12

95. Plaintiffs have no other recourse to judicial review other than this

13 action.

14

96. Defendants’ exclusion of children born abroad in same-sex marriages

15 from the category of children who qualify for citizenship at birth as born to valid

16 marriages lacks a rational basis, is arbitrary, and is contrary to law.

17

97. Plaintiffs have no adequate remedy at law.

18

COUNT IV – DECLARATION THAT ETHAN DVASH-BANKS IS A

U.S. CITIZEN 19

98. Plaintiffs repeat, reallege, and incorporate by reference the allegations

20

contained in paragraphs 1 through 71 as if fully set forth herein.

21

99. 8 U.S.C. § 1503(a) authorizes this Court to make a de novo judgment

22

as to the citizenship status of Ethan.

23

100. Andrew is a U.S. citizen, who was born in the U.S. and physically

24

present in the U.S. for a period of 24 years, starting from the time he was born in

25

California in 1981 until the time he moved to Israel in 2005.

26

101. Andrew and Elad were legally married to each other by a judge in

27

Canada on August 19, 2010. They have been married to each other continuously

28

since that date.

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 23 of 25 Page ID #:23

1

102. Their sons, Aiden and Ethan, were born on September 16, 2016 in

2 Mississauga, Canada, during Andrew’s and Elad’s marriage.

3

103. Andrew and Elad are Ethan’s parents. They are identified as Ethan’s

4 parents on his birth certificate and recognized as his parents under Canadian law.

5

104. Section 301(g) of the INA is applicable to Ethan’s citizenship claim

6 because Ethan is the child of parents who were married to each other at the time of

7 his birth, and one of Ethan’s married parents is a U.S. citizen. Section 309(a) of

8 the INA is inapplicable to Ethan’s citizenship claim because he is the child of

9 married parents, and therefore is not a child born out of wedlock.

10

105. Ethan is a U.S. citizen at birth pursuant to Section 301(g) because he

11 was born: (1) outside the geographical limits of the United States and its outlying

12 possessions, (2) to parents one of whom is an alien, and the other a citizen of the

13 United States, (3) to a parent who, prior to the birth of such person, was physically

14 present in the United States or its outlying possessions for a period or periods

15 totaling not less than five years, at least two of which were after attaining the age

16 of fourteen years.

17

18

19

20

21

22

23

24

25

26

27

28

23

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 24 of 25 Page ID #:24

PRAYER FOR RELIEF 1

WHEREFORE, Plaintiffs respectfully pray that this Court:

2

i. Declare unconstitutional, and a violation of the INA, the State

3

Department’s policy of classifying the children of same-sex married

couples as “children born out of wedlock,” and its consequent refusal

4

to recognize Ethan’s citizenship status on that basis, both on its face

and as applied to Plaintiffs, Andrew Mason Dvash-Banks, in his

5

individual capacity, and on behalf of his son, Ethan Jacob Dvash-

Banks; 6

ii. Declare Ethan Jacob Dvash-Banks a U.S. citizen at birth; 7

iii. Permanently enjoin Defendants from continuing to discriminate

8

against Plaintiffs by classifying the children of same-sex married

couples as “children born out of wedlock,” and denying the children

9

of same-sex married couples the right to acquire citizenship at birth

pursuant to Section 301(g) on that basis; and 10

iv. Award Plaintiffs attorneys’ fees and costs as allowed by law, and such

11

other relief as the Court deems just and proper, including an award of

reasonable litigation costs incurred in this proceeding pursuant to

12

28 U.S.C. § 2412.

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

24

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:18-cv-00523-JFW-JC Document 1 Filed 01/22/18 Page 25 of 25 Page ID #:25

1 Dated: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

New York, New York January 22, 2018

SULLIVAN & CROMWELL LLP /s Alexa Lawson-Remer
Alexa Lawson-Remer (lawsonr@sullcrom.com) State Bar No. 268855 1888 Century Park East Los Angeles, CA 90067-1725 Telephone: (310) 712-6600 Facsimile: (310) 712-8800 Theodore Edelman (edelmant@sullcrom.com) (pro hoc vice application forthcoming) Jessica Klein (kleinj@sullcrom.com) (pro hoc vice application forthcoming) Scott E. Blair (blairs@sullcrom.com) (pro hoc vice application forthcoming) Alexandra H. Moss (mossa@sullcrom.com) State Bar No. 302641 125 Broad Street New York, New York 10004-2498 Telephone: (212) 558-4000 Facsimile: (212) 558-3588
-and-
IMMIGRATION EQUALITY /s Aaron Morris
Aaron C. Morris (amorris@immigrationequality.org) (pro hoc vice application forthcoming) 40 Exchange Place Suite 1300 New York, New York 10005-2744 Telephone: (212) 714-2904 Attorneys for Plaintiffs
25
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

 
 Case 2:18-cv-00523-JFW-JC Document 79 Filed 01/04/19 Page 1 of 9 Page ID #:1162

1 SULLIVAN & CROMWELL LLP Alexa M. Lawson-Remer (268855)
2 lawsonr@sullcrom.com 1888 Century Park East, Suite 2100
3 Los Angeles, CA 90067-1725 Telephone: (310) 712-6600
4 Facsimile: (310) 712-8800

5 Theodore Edelman (pro hac vice) edelmant@sullcrom.com
6 Jessica Klein (pro hac vice) kleinj@sullcrom.com
7 Lauren M. Goldsmith (293269) goldsmithl@sullcrom.com
8 125 Broad Street New York, NY 10004-2498
9 Telephone: (212) 558-4000 Facsimile: (212) 558-3588
10 IMMIGRATION EQUALITY
11 Aaron C. Morris (pro hac vice) amorris@immigrationequality.org
12 40 Exchange Place, Suite 1300 New York, NY 10005-2744
13 Telephone: (212) 714-2904

14 Attorneys for Plaintiffs

15

16

UNITED STATES DISTRICT COURT

17

CENTRAL DISTRICT OF CALIFORNIA

18

WESTERN DIVISION (LOS ANGELES)

19 ANDREW MASON DVASH-

)

20 BANKS and E.J. D.-B.,

) )

21

Plaintiffs, ) )

v.

)

22

)

23

THE UNITED STATES DEPARTMENT OF STATE,

) )

24

and THE HONORABLE MICHAEL R. POMPEO,

) )

25 Secretary of State,

) )

26

Defendants. ) )

)

27

)

) 28

Case No. 2:18-cv-00523-JFW-JCx EX PARTE NOTICE OF MOTION AND UNOPPOSED MOTION UNDER FRCP 15(a) FOR LEAVE TO REMOVE PLAINTIFFS’ EQUAL PROTECTION CLAIM VIA AMENDMENT OF THE COMPLAINT ________________________________
Judge: Hon. John F. Walter

NOTICE OF MOTION & UNOPPOSED MOTION FOR LEAVE TO AMEND COMPLAINT TO REMOVE CLAIM

Case 2:18-cv-00523-JFW-JC Document 79 Filed 01/04/19 Page 2 of 9 Page ID #:1163

1

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE of Plaintiffs’ unopposed motion under

3 Federal Rule of Civil Procedure 15 for leave to file a First Amended Complaint for

4 the purpose of removing without prejudice their Equal Protection claim (Count II

5 of the operative Complaint). A copy of the proposed First Amended Complaint,

6 along with a redline version identifying the proposed changes from the initial

7 Complaint, are attached for the Court’s review. (See Exhibits A and B,

8 respectively, to the Declaration of Alexa M. Lawson-Remer (hereinafter “Lawson-

9 Remer Declaration”)). The proposed First Amended Complaint retains the

10 remaining three causes of action as alleged against Defendants in the initial

11 Complaint (specifically, Plaintiffs’ claims under the Administrative Procedure Act

12 (“APA”), 5 U.S.C. § 702; 8 U.S.C. § 1503 (“Section 1503”); and the Due Process

13 clause of the Fifth Amendment). The parties met and conferred on December 21,

14 2018 and January 2 and January 3, 2019 and are available for a hearing if the Court

15 so requires; but otherwise intend to submit the matter to the Court on the papers.

16

This motion will be based on this Notice of Motion and Motion, the

17 annexed Memorandum of Points and Authorities, the Lawson-Remer Declaration

18 and exhibits thereto, Plaintiff’s First Amended Complaint, the [Proposed] Order

19 filed herewith, and on any additional material presented during the hearing on this

20 motion (if any).

21

This motion is made following the conference of counsel pursuant to

22 L.R. 7-3, which took place on December 21, 2018 and January 2 and January 3,

23 2019. During this conference, Defendants’ counsel stated that they do not oppose

24 a motion that allows Plaintiffs to amend the Complaint to remove Plaintiffs’ equal

25 protection claim.

26 27 Dated: January 4, 2019

Respectfully submitted,

28

By: /s/ Alexa M. Lawson-Remer

NOTICE OF MOTION & UNOPPOSED MOTION FOR LEAVE TO AMEND COMPLAINT TO REMOVE CLAIM

Case 2:18-cv-00523-JFW-JC Document 79 Filed 01/04/19 Page 3 of 9 Page ID #:1164

1

SULLIVAN & CROMWELL LLP

Alexa M. Lawson-Remer (268855)

2

lawsonr@sullcrom.com

1888 Century Park East, Suite 2100

3

Los Angeles, CA 90067-1725

4

Telephone: (310) 712-6600 Facsimile: (310) 712-8800

5

Theodore Edelman (pro hac vice)

edelmant@sullcrom.com

6

Jessica Klein (pro hac vice)

kleinj@sullcrom.com

7

Lauren M. Goldsmith (293269)

goldsmithl@sullcrom.com

8

125 Broad Street

New York, NY 10004-2498

9

Telephone: (212) 558-4000

10

Facsimile: (212) 558-3588

IMMIGRATION EQUALITY

11

Aaron C. Morris (pro hac vice)

amorris@immigrationequality.org

12

40 Exchange Place, Suite 1300

New York, NY 10005-2744

13

Telephone: (212) 714-2904

14

Attorneys for Plaintiffs

15

16

17

18

19

20

21

22

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24

25

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1

CERTIFICATION OF COMPLIANCE WITH LOCAL RULE 7-3

2

Plaintiffs’ counsel certifies that, prior to filing the instant motion, the

3 parties, through counsel, met and conferred on December 21, 2018 and January 2

4 and January 3, 2019 regarding the contents of the instant motion and the

5 concurrently-filed Joint Stipulation to Modify Scheduling Order Under Rule 16(b),

6 and exchanged drafts of each.

7

8 Dated: January 4, 2019

Respectfully submitted,

9

By: /s/ Alexa M. Lawson-Remer

10

SULLIVAN & CROMWELL LLP

11

Alexa M. Lawson-Remer (268855) lawsonr@sullcrom.com

12

1888 Century Park East, Suite 2100 Los Angeles, CA 90067-1725

13

Telephone: (310) 712-6600 Facsimile: (310) 712-8800

14

Theodore Edelman (pro hac vice)

15

edelmant@sullcrom.com Jessica Klein (pro hac vice)

16

kleinj@sullcrom.com Lauren M. Goldsmith (293269)

17

goldsmithl@sullcrom.com 125 Broad Street

18

New York, NY 10004-2498 Telephone: (212) 558-4000

19

Facsimile: (212) 558-3588

20

IMMIGRATION EQUALITY Aaron C. Morris (pro hac vice)

21

amorris@immigrationequality.org 40 Exchange Place, Suite 1300

22

New York, NY 10005-2744 Telephone: (212) 714-2904

23

Attorneys for Plaintiffs

24

25

26

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NOTICE OF MOTION & UNOPPOSED MOTION FOR LEAVE TO AMEND COMPLAINT TO REMOVE CLAIM

Case 2:18-cv-00523-JFW-JC Document 79 Filed 01/04/19 Page 5 of 9 Page ID #:1166

1

MEMORANDUM OF POINTS AND AUTHORITIES

2

Plaintiffs Andrew Mason Dvash-Banks (“Andrew”) and his son

3 E.J.D.-B. (“E.J.”; together, “Plaintiffs”), respectfully submit this memorandum of

4 points and authorities in support of their unopposed motion for an order granting

5 Plaintiffs leave to file a First Amended Complaint for the purpose of removing

6 without prejudice their Equal Protection claim (Count II of the operative

7 Complaint) in the above-captioned action (the “Action”).

8

I. INTRODUCTION

9

This Action challenges the State Department’s determination not to

10 recognize E.J. as a U.S. citizen at birth. E.J. and his twin brother, A.J.D.-B.

11 (“A.J.”) were born in Canada to Andrew, a U.S. citizen, and his husband, Elad

12 Dvash-Banks (“Elad”), an Israeli citizen, while they were married. The State

13 Department recognizes A.J.’s U.S. citizenship but denies that E.J. is a U.S. citizen.

14

On January 22, 2018, Andrew and E.J. filed the Complaint in this

15 Action, alleging that under the Immigration and Nationality Act (“INA”), “[a]t

16 birth, both [E.J.] and [A.J.] qualified for United States citizenship pursuant to

17 Section 301(g).” The Complaint alleges four causes of action: (1) violation of due

18 process under the Fifth Amendment (Count I); (2) violation of equal protection

19 under the Fifth Amendment (Count II); (3) violation of Section 706(2)(A) of the

20 Administrative Procedure Act (the “APA”) (Count III); and (4) declaratory

21 judgment pursuant to Section 1503 of the INA that E.J. is a U.S. citizen at birth

22 (Count IV).

23

Defendants answered the Complaint on July 16, 2018, and the parties

24 submitted their Joint Rule 26(f) Report on August 20, 2018. Thereafter, the Court

25 issued a Scheduling and Case Management Order (“Scheduling Order”) on August

26 21, 2018, setting out the deadlines in the case. The deadline for amending the

27 pleadings was set at sixty days from the date of the Scheduling Order, or October

28 20, 2018. The current deadline for moving for summary judgment (as stipulated to

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1 by the parties on December 21, 2018 and ordered by the Court on December 26,

2 2018) is January 7, 2019; the parties each intend to cross-move for summary

3 judgment on multiple claims.

4

In connection with those contemplated motions, the parties met and

5 conferred multiple times and, among other things, explored ways to try to

6 streamline the Action by reducing issues and claims for the Court’s consideration

7 and adjudication. As part of that effort, the parties agreed, subject to the Court’s

8 approval, to eliminate the need for the Court to address Plaintiffs’ equal protection

9 claim. Accordingly, Plaintiffs now seek an order permitting them to amend the

10 Complaint to remove their equal protection claim (Count II of the operative

11 Complaint) under Federal Rules of Civil Procedure 15(a) in advance of the January 12 7, 2019 deadline for filing motions for summary judgment.1 Plaintiffs are seeking

13 this order ex parte in an effort to obtain the order before the deadline for filing

14 summary judgment motions. Counsel for Defendants was informed that the instant 15 motion would be made ex parte and consented to the filing.2

16

17

18

19

20 1 The requested relief would have the effect of a dismissal without prejudice of
21 Plaintiffs’ equal protection claim. Inasmuch as amendment of the pleadings pursuant to Rule 15, rather than dismissal under Rule 41, is the proper procedure
22 for removing individual claims, Plaintiffs seek to accomplish that result by means of this motion. See Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683,
23 687-88 (9th Cir. 2005) (“Rule 41, or at least Rule 41(a), governs dismissals of entire actions, not of individual claims . . . . [W]ithdrawals of individual claims
24 against a given defendant are governed by Fed.R.Civ.P. 15, which addresses amendments to pleadings.”).
25 2 Defendants in this Action are represented by Lisa Zeidner Marcus and Vinita B.
26 Andrapalliyal of the United States Department of Justice, mailing address P.O. Box 883, Washington DC 20044. Their e-mail addresses are
27 lisa.marcus@usdoj.gov and Vinita.B.Andrapalliyal@usdoj.gov, respectively. Defense counsel’s contact telephone number is (202) 305-0845.
28

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1

II. ARGUMENT

2 A. Legal Standard

3

Under Fed. R. Civ. P. 15(a), parties are permitted to amend their

4 pleadings with “the opposing party’s written consent” or with leave of court.3

5 “[L]eave [to amend] shall be freely given when justice so requires.” Lisker v. City

6 of Los Angeles, 2011 WL 3420665, at *1 (C.D. Cal. Aug. 4, 2011) (quoting

7 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-09 (9th Cir. 1992). In

8 deciding whether to grant leave to amend, “courts are cautioned to apply the policy

9 of free amendment of pleadings with extreme liberality.” Id. (quoting SAES

10 Getters S.P.A. v. Aeronex, Inc., 219 F. Supp. 2d 1081, 1086 (S.D. Cal. 2002).

11 Generally, “amendment of pleadings is to be permitted unless the opposing party

12 makes a showing of undue delay, bad faith, undue prejudice, or futility of

13 amendment on the part of the moving party.” Id. (quoting Aeronex, 219 F. Supp.

14 2d at 1086-87).

15 B. Defendants have consented to Plaintiffs’ amendment of the Complaint, thus amendment is appropriate.
16

17

Defendants consented in writing to Plaintiffs’ proposed amendment of

18 the Complaint. (See Joint Stipulation to Modify Scheduling Order Under Rule

19 16(b) at p. 2, filed concurrently with the instant motion). Even if Defendants had

20
21 3 Fed. R. Civ. P. 15(a) governs the amendment of pleadings. However, “once the court files a pretrial scheduling order establishing a timetable for amending the
22 pleadings, Rule 16 [also] applies.” Lisker v. City of Los Angeles, 2011 WL 3420665, at *1 (C.D. Cal. Aug. 4, 2011). Fed. R. Civ. P. 16(b) allows for
23 modification of a scheduling order upon a showing of “good cause.” Rule 16(b)’s “‘good cause’ standard primarily considers the diligence of the party seeking the
24 amendment . . . . Relief may be granted if the court finds that the movant has not unduly delayed the action and that the opponent will not be prejudiced by the
25 modification.” Lisker, 2011 WL 3420665, at *1. Once the “party seeking the amendment demonstrates good cause under Rule 16, then th[at] party must
26 demonstrate that amendment is proper under Rule 15.” Id. The parties jointly stipulated, subject to the Court’s approval, to modifying the deadline for amending
27 the pleadings in the Court’s Scheduling Order (Dkt. No. 52) on January 4, 2019 and have filed that stipulation concurrently with this motion.
28

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1 not so consented, amendment is appropriate under Rule 15(a) for the following

2 reasons. First, Plaintiffs diligently notified Defendants of their intention to remove

3 their equal protection claim before the January 7, 2019 deadline for filing summary

4 judgment motions in an effort to assist the parties and the Court in streamlining

5 this action. Second, allowing Plaintiffs to amend the Complaint would not unduly

6 delay the action. To the contrary, it would narrow the issues for the Court to

7 resolve and thus conserve the Court’s and the parties’ resources. Third,

8 Defendants would not be prejudiced by Plaintiffs’ proposed amendment, which

9 would reduce the scope of the action and the number of claims for the parties and

10 the Court to address. Because Plaintiffs are seeking to remove a cause of action

11 from the Complaint, there is no risk that Defendants would have to “undertake[] . .

12 . an entirely new course of defense.” Lisker, 2011 WL 3420665, at *2 (Defendants

13 “fail[ed] to articulate how the absence of certain claims w[ould] undermine their

14 already existing defenses against the remaining claims”). Moreover, because

15 Plaintiffs could achieve the same result by removing the equal protection cause of

16 action at the pretrial conference, there is “little point in precluding Plaintiff[s] from

17 dropping claims [they] no longer wish[] to pursue.” Id. (“Defendants cannot force

18 Plaintiff to pursue at trial every cause of action pleaded in the complaint. This is

19 made explicit in the Central District’s pretrial procedures . . . . Plaintiff could wait

20 until the pretrial conference and announce that he has abandoned the [] claims in

21 question”). Fourth, because Plaintiffs are seeking to remove rather than add a

22 cause of action, there is no concern that amendment would be futile. Fifth, there

23 has been no suggestion—nor could any be made—that Plaintiffs’ request to amend

24 is not made in good faith.

25

III. CONCLUSION

26

For the foregoing reasons, Plaintiffs Andrew and E.J. respectfully

27 request that the Court grant this motion and thereby grant them leave to file an

28 amended complaint deleting without prejudice their equal protection cause of

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1 action.

2 Dated: January 4, 2019
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

Respectfully submitted,
By: /s/ Alexa M. Lawson-Remer SULLIVAN & CROMWELL LLP Alexa M. Lawson-Remer (268855) lawsonr@sullcrom.com 1888 Century Park East, Suite 2100 Los Angeles, CA 90067-1725 Telephone: (310) 712-6600 Facsimile: (310) 712-8800 Theodore Edelman (pro hac vice) edelmant@sullcrom.com Jessica Klein (pro hac vice) kleinj@sullcrom.com Lauren M. Goldsmith (293269) goldsmithl@sullcrom.com 125 Broad Street New York, NY 10004-2498 Telephone: (212) 558-4000 Facsimile: (212) 558-3588 IMMIGRATION EQUALITY Aaron C. Morris (pro hac vice) amorris@immigrationequality.org 40 Exchange Place, Suite 1300 New York, NY 10005-2744 Telephone: (212) 714-2904 Attorneys for Plaintiffs

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NOTICE OF MOTION & UNOPPOSED MOTION FOR LEAVE TO AMEND COMPLAINT TO REMOVE CLAIM

 
 Case 2:18-cv-00523-JFW-JC Document 94 Filed 01/14/19 Page 1 of 23 Page ID #:2079

1 Alexa M. Lawson-Remer (SBN 268855) lawsonr@sullcrom.com
2 SULLIVAN & CROMWELL LLP 1888 Century Park East, Suite 2100
3 Los Angeles, California 90067-1725 Telephone: (310) 712-6600
4 Facsimile: (310) 712-8800

5 Theodore Edelman (pro hoc vice) edelmant@sullcrom.com
6 Jkelessinicj@a Ksulellicnro(pmr.ocohmoc vice) 7 SULLIVAN & CROMWELL LLP
125 Broad Street 8 New York, New York 10004-2498
Telephone: (212) 558-4000 9 Facsimile: (212) 558-3588

10 Aaron C. Morris (pro hoc vice) amorris@immigrationequality.org
11 IMMIGRATION EQUALITY 40 Exchange Place, Suite 1300
12 New York, New York 10005-2744 Telephone: (212) 714-2904
13 14 Attorneys for Plaintiffs

15

UNITED STATES DISTRICT COURT

16

CENTRAL DISTRICT OF CALIFORNIA

17

18

ANDREW MASON DVASHBANKS and E.J. D.-B.,

) )

19

) Plaintiffs, )

20

v.

) )

21 THE UNITED STATES

) )

22

DEPARTMENT OF STATE, and ) THE HONORABLE MICHAEL R. )

23 POMPEO, Secretary of State,

) )

24

Defendants. ) )

25

Case No. 2:18-CV-00523-JFW-JCx

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Judge:

Hon. John F. Walter

Hearing Date: February 4, 2019

Courtroom: 7A

26

27

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FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1

PRELIMINARY STATEMENT

2

1. This action challenges a United States Department of State (“State

3 Department”) policy that hurts families and undermines the familial relationships of

4 same-sex parents. The agency’s policy unconstitutionally disregards the dignity and

5 sanctity of same-sex marriages by refusing to recognize the birthright citizenship of

6 the children of married same-sex couples. Plaintiffs are members of a family who

7 have suffered and continue to suffer harm because of the State Department’s policy.

8 The family includes Andrew Mason Dvash-Banks (“Andrew”)—a United States

9 citizen, who was born and raised in this country; Andrew’s husband, Elad Dvash-

10 Banks (“Elad”), an Israeli citizen; and their twin sons, E.J. D.-B. (“E.J.”) and A.J.

11 D.-B. (“A.J.”) (collectively, the “twins”).

12

2. Both E.J. and A.J. were conceived and born during Andrew’s marriage

13 to Elad. Andrew and Elad conceived the twins using their own sperm and eggs from

14 the same anonymous donor. They used Elad’s sperm to conceive E.J. and Andrew’s

15 sperm to conceive A.J. A surrogate carried the twins to term together in her womb

16 and gave birth to them moments apart on September 16, 2016, in Canada. Andrew

17 and Elad are the only parents E.J. and A.J. have, and the only people Canadian law1

18 recognizes as E.J. and A.J.’s parents. Accordingly, Andrew and Elad have been the

19 twins’ legal parents from the day they came into this world together.

20

3. At birth, both E.J. and A.J. qualified for United States citizenship

21 pursuant to Section 301(g) of the Immigration and Nationality Act (“INA”) (codified

22 at 8 U.S.C. § 1401(g)). That clause entitles a person born abroad to citizenship at

23 birth if one of that person’s married parents is a United States citizen and the other

24 is a foreign national, as long as the citizen parent satisfies certain statutorily

25 prescribed periods of residency in the U.S. Andrew is a U.S. citizen who has lived

26

27 1 To the extent necessary to introduce or address issues of non-U.S. law in

28

connection with this action, this hereby constitutes Plaintiffs’ notice pursuant to Federal Rule Civil Procedure 44.1 of reliance on foreign law.

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1 in the United States for over twenty-four years, and so clearly satisfies the residency

2 requirements of Section 301(g). Because Andrew and Elad were married to each

3 other when E.J. and A.J. were born, E.J. and A.J. have been U.S. citizens since birth

4 under Section 301(g).

5

4. The State Department, through the United States Embassy in Toronto,

6 Canada, however, failed to apply Section 301 to E.J. and A.J. Instead, it applied

7 Section 309 of the INA (codified at 8 U.S.C. § 1409), a provision of the statute

8 which applies only to children born “out of wedlock.” Because the State Department

9 wrongly considered E.J. and A.J. to have been born “out of wedlock,” it erroneously

10 concluded that they could qualify for citizenship at birth only pursuant to provisions

11 applicable to the children of unwed parents. It then incorrectly determined that the

12 twins could acquire citizenship at birth only pursuant to Section 309 and only if

13 Andrew’s sperm had been used to conceive them both.

14

5. Focusing improperly on the biological relationship between each child

15 and the parent who conceived him, the State Department then recognized A.J.’s

16 citizenship and denied E.J.’s. The State Department’s application of Section 309

17 instead of Section 301 is an unlawful, unconstitutional refusal to recognize the

18 validity of Andrew’s and Elad’s marriage and, therefore, that a child born to them

19 during their marriage is the offspring of that marriage. The fact that the State

20 Department’s policy has led children identified by their birth certificates as twins

21 with the same parents to have different nationalities listed on their passports

22 crystallizes both the indignity and absurdity of the policy’s effect.

23

6. The State Department’s failure to recognize and give effect to the

24 marriage between Andrew and Elad also denies E.J. the rights and privileges that

25 accompany U.S. citizenship, including the right to reside permanently in the U.S.,

26 the right to obtain a U.S. passport, and, when he is older, the right to run for political

27 office. Because the State Department does not recognize E.J.’s U.S. citizenship, he

28 cannot visit or live in the United States freely as other members of his family can.

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1

7. Andrew and A.J. may reside in the U.S. permanently because they are

2 U.S. citizens. Elad may legally reside in the U.S. permanently because he has a

3 family-based immigrant visa through his marriage to Andrew. The State

4 Department’s policy, however, renders E.J. the only member of his family without

5 the freedom to live in the U.S. permanently. The State Department’s decision to

6 withhold from E.J. the same rights granted to his twin brother means that he will

7 experience the indignity and stigma of unequal treatment imposed and endorsed by

8 the U.S. government. No governmental purpose could justify imposing these

9 indignities on a child of a valid marriage or restricting a family’s freedom to live as

10 a family—together.

11

8. The State Department’s policy is not only wrong and harmful, it is also

12 contrary to the INA as well as the guarantee of due process enshrined in the Fifth

13 Amendment. To the extent that the State Department’s policy was adopted before

14 the Supreme Court’s recent precedents guaranteeing equality to same-sex married

15 couples and their families, its continued enforcement violates that precedent. The

16 Supreme Court has made clear that the Constitution requires that same-sex marriages

17 receive the same legal effects and respect as opposite-sex marriages. The State

18 Department’s policy, or at least its application to E.J., violates that mandate by

19 restricting eligibility for citizenship under Section 301 of the INA solely to children

20 whose parents are in opposite-sex marriages. These violations create real and

21 significant hardships for the Dvash-Banks family and others like them.

22

9. The State Department’s policy is arbitrary and capricious and serves no

23 rational, legitimate, or substantial governmental interest. The State Department’s

24 policy drives families apart by treating the children of the same married parents

25 differently depending upon which father’s sperm was used during fertilization. The

26 threat that this policy poses to family unity confirms that it is contrary to the

27 legislative intent of the INA, which enshrines the preservation of the family unit as

28 a paramount consideration. Neither the INA nor the U.S. Constitution permits the

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1 State Department’s unlawful policy to stand.

2

10. Plaintiffs bring this action both to challenge the State Department’s

3 policy as well as to request that this Court, pursuant to Section 360 of the INA

4 (codified at 8 U.S.C. § 1503), declare that E.J. is a U.S. citizen at birth.

5

THE PARTIES

6

11. Plaintiff Andrew is a 36-year-old citizen of the United States. He was

7 born in Santa Monica, California, and currently resides with his husband and their

8 children in Los Angeles, California.

9

12. Plaintiff E.J. is two years old. He was born in Mississauga, Ontario,

10 Canada, and currently resides with his parents Andrew and Elad and twin brother

11 A.J. in Los Angeles—although, as explained below, E.J.’s permission to remain in

12 the U.S. recently has expired.

13

13. Andrew brings this action in his individual capacity and on behalf of

14 his son E.J.

15

14. Defendant the State Department is a department of the government of

16 the United States of America, whose headquarters office is located at the

17 Department of State, 2201 C St. NW, Washington, D.C. 20520. The State

18 Department oversees all U.S. embassies and sets the policy U.S. embassy

19 employees follow in determining whether to recognize the citizenship of the

20 children of U.S. citizens.

21

15. Defendant The Honorable Michael R. Pompeo is the Secretary of State,

22 whose office is located at the Department of State, 2201 C St. NW, Washington,

23 D.C. 20520, and is being sued in his official capacity.

24

JURISDICTION AND VENUE

25

16. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

26

17. This Court is authorized to issue a declaratory judgment pursuant to

27 28 U.S.C. §§ 2201 and 2202.

28

18. This Court is authorized to issue a judgment and injunctive relief

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1 pursuant to 5 U.S.C. § 702.

2

19. This Court is authorized to make a de novo determination and judgment

3 of citizenship pursuant to 8 U.S.C. § 1503(a).

4

20. Venue in this district is proper pursuant to 28 U.S.C. § 1391(e).

5

STATUTORY AND REGULATORY BACKGROUND

6

A. United States Citizenship at Birth

7

21. There are two pathways to become a United States citizen at birth: one

8 pursuant to the Constitution and another by statute, the INA. The “Citizenship

9 Clause” of the Fourteenth Amendment of the Constitution provides, in part, that

10 anyone born in the United States is a citizen at birth. Under the INA, persons born

11 outside the United States may be considered citizens at birth under certain statutorily

12 prescribed circumstances. If a person born outside the United States does not acquire

13 citizenship at birth, that person can acquire citizenship only through naturalization,

14 and therefore can never be eligible for the presidency as birthright citizens are.

15

22. The provisions governing eligibility for U.S. citizenship at birth by

16 individuals born outside the United States are set forth in Sections 301 through 309

17 of the INA. Section 301 is titled “Nationals and citizens of United States at birth.”

18 Under Section 301(g), a baby born abroad is a U.S. citizen at birth when (1) one of

19 the child’s parents is a married United States citizen and (2) the U.S. citizen parent

20 lived in the U.S. for at least five years, at least two of which were after the parent’s

21 fourteenth birthday.

22

23. Section 309 is titled “Children born out of wedlock,” and its provisions

23 explicitly apply only to a person “born out of wedlock.” The requirements for

24 citizenship at birth under that provision differ substantially from those in

25 Section 301, which has long been regarded as applicable to anyone whose parents

26 were lawfully married when the child was born.

27

24. For unwed fathers, Section 309(a) specifies, in part, that certain

28 provisions of Section 301—including Section 301(g)—“shall apply as of the date of

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1 birth to a person born out of wedlock if—(1) a blood relationship between the person

2 and the father is established by clear and convincing evidence.” In addition, Section

3 309(a) requires that, for citizenship under Section 301 to be available to an unwed

4 father’s child, the father must have (2) acquired U.S. nationality by the time the

5 person seeking citizenship was born, (3) agreed in writing to provide financial

6 support to that person until the age of 18, and (4) while the person is under 18 years

7 old, (a) legitimated the person under the law of that person’s residence or domicile,

8 (b) acknowledged paternity in writing under oath, or (c) had paternity established by

9 a court of competent jurisdiction.

10

25. As a result of the different requirements for the children of wed and

11 unwed U.S. citizens, it is possible for people to qualify for citizenship at birth under

12 Section 301 even if they would not qualify under Section 309. Thus, the

13 determination of whether a child is born in or out of wedlock can be dispositive of

14 the ultimate question of whether or not a child acquired U.S. citizenship at birth.

15

26. Since its enactment in 1952, the INA has neither included nor been

16 amended to include definitions of the terms “parent” and “person,” as used in

17 Section 301, or the terms “mother,” “father,” and “out of wedlock,” as used in

18 Section 309.

19

27. Before and after the enactment of the INA, the majority of U.S. states

20 have followed the common law in presuming that every child born in wedlock is the

21 legitimate offspring of the child’s married parents. In general, including in

22 California, that presumption applies even when only one spouse is the child’s

23 biological parent. The structure of the INA effectively codifies the common law

24 presumption of parentage for married couples by making Section 301 applicable to

25 any person except for children who are born “out of wedlock.”

26

28. Congress has made clear that the legislative intent behind the INA

27 should be construed liberally because the INA was designed to make it easier—not

28 harder—for families of citizens and non-citizens to stay together. According to

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1 Congress, “the legislative history of the Immigration and Nationality Act clearly

2 indicates that the Congress intended to provide for a liberal treatment of children and

3 was concerned with the problem of keeping families of United States Citizens and

4 Immigrants united.” H.R. Rep. 85-1199, at 2020 (1957). Congress has also declared

5 that “the statutory language makes it clear that the underlying intent [is] to preserve

6 the family unit upon immigration to the United States.” Id.

7

29. In amending the INA, Congress recognized that the hardships faced by

8 families fractured along citizenship lines were overwhelmingly greater than any

9 harm that could come from the liberal treatment of children with respect to

10 citizenship.

11

B. The Constitutional Rights of Same-Sex Couples

12

30. As the Supreme Court has recognized, same-sex couples have long

13 been subjected to illegal institutional discrimination and social stigmatization. The

14 Supreme Court’s precedent makes clear that the Constitution compels equal

15 protection and recognition of, and respect for, the rights of same-sex spouses,

16 including their right to have autonomy over the most personal and intimate of

17 choices—decisions about starting a family and sustaining a partnership in which to

18 raise and nurture a child. Accordingly, the State Department must recognize the

19 “equal dignity of same-sex marriages.” United States v. Windsor, 133 S. Ct. 2675,

20 2693 (2013).

21

31. After Windsor overturned the statute excluding same-sex marriages

22 from federal recognition, the federal government announced that it would recognize

23 same-sex marriages for immigration purposes. See Statement from Homeland

24 Security Secretary Janet Napolitano on July 1, 2013, available at

25 https://www.uscis.gov/family/same-sex-marriages (“As a general matter, the law of

26 the place where the marriage was celebrated determines whether the marriage is

27 legally valid for immigration purposes. Just as [the United States Citizenship and

28 Immigration Services] applies all relevant laws to determine the validity of an

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1 opposite-sex marriage, we will apply all relevant laws to determine the validity of a

2 same-sex marriage.”).

3

32. Following Windsor, the Supreme Court overturned state laws that

4 barred same-sex couples from marrying as inconsistent with the Constitution’s

5 guarantees of due process and equal protection, including rights central to an

6 individual’s autonomy and dignity, such as one’s choice of intimate life partner.

7 Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

8

33. The Court further warned that failure to recognize same-sex marriages

9 “harm[s] and humiliate[s] the children of same-sex couples.” Id. at 2590. The Court

10 also recognized that “[w]ithout the recognition, stability, and predictability marriage

11 offers, children suffer the stigma of knowing their families are somehow lesser.” Id.

12

34. In Pavan v. Nathaniel Smith, the Supreme Court held that married

13 couples must receive the same “constellation of benefits . . . linked to marriage,”

14 regardless of whether the marriage is between spouses of the same or opposite sexes.

15 137 S. Ct. 2075, 2077 (2017). Those benefits include the legal recognition that

16 same-sex spouses may both be the parents of a child born during their marriage, even

17 if only one spouse is the child’s biological parent.

18

C. The State Department’s Restrictive Classification of Eligible

19

Children

35. The INA does not define or limit the class of persons born in wedlock

20

who are eligible for citizenship at birth pursuant to Section 301. Nevertheless, the

21

22 State Department is restricting the class to exclude all children of same-sex married

couples.

23

36. The State Department has imposed that policy by inserting a definition

24

of terms into an Appendix to the Foreign Affairs Manual (“FAM”), available at

25

https://fam.state.gov/. Specifically, 1140 Appendix E of the FAM, titled “‘IN

26

WEDLOCK’ AND ‘OUT OF WEDLOCK,’” includes subsection (c), which states

27

that “[t]o say a child was born ‘in wedlock’ means that the child’s biological parents

28

were married to each other at the time of the birth of the child.” (A copy of the

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1 relevant portion of the appendix is appended to this Complaint at Exhibit A.)

2

37. 1140 Appendix E of the FAM has never been submitted to notice and

3 comment rulemaking. However, it forms the basis for the State Department’s

4 conclusion that the children were born out of wedlock.

5

38. That definition has the effect of limiting birthright citizenship to

6 children who are biologically related to a U.S. citizen parent, which the United States

7 Court of Appeals for the Ninth Circuit has rejected in two separate decisions. See 8 Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005) (citing Scales v. INS, 9 232 F.3d 1159, 1166 (9th Cir. 2000)).

10

FACTUAL ALLEGATIONS

11

A. The Dvash-Banks Family

12

39. Andrew is a U.S. citizen who was born, raised, and has lived as an adult

13 in the United States. He was born in 1981 in Santa Monica, California, where he

14 lived continuously with his family from birth through the time of his high school

15 graduation in 1999. Andrew’s parents were both born and raised in Toronto,

16 Canada, and as a result, Andrew is also a citizen of Canada.

17

40. After graduating from high school, Andrew attended the University of

18 California at Santa Barbara, graduating with a bachelor’s degree in June 2003.

19 Andrew then moved to New York City, where he lived for three years while working

20 for a translation company. In 2005, Andrew moved to Israel; and in July 2007, he

21 enrolled in a master’s program at Tel Aviv University. In March of 2008, Andrew

22 met Elad Dvash at a holiday party at Tel Aviv University.

23

41. Elad is an Israeli citizen, born in Ramat Gan, Israel, on March 20, 1985.

24 Elad had lived in Israel for his entire life when he met and began dating Andrew.

25 Thereafter, the two moved to Toronto, Canada, where they were married by a judge

26 on August 19, 2010. (A copy of Elad and Andrew’s marriage certificate is appended

27 to this Complaint at Exhibit B.)

28

42. Then, as now, Canadian law recognizes the validity and equality of

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1 same-sex marriages. Although Andrew and Elad wanted to move to the United

2 States to start their family in California, where four of Andrew’s five siblings live

3 with their families, at the time of their marriage in August 2010, the Defense of

4 Marriage Act had not yet been ruled unconstitutional by the Supreme Court. The

5 Defense of Marriage Act precluded the United States government from recognizing

6 the validity of Andrew and Elad’s marriage, and therefore barred Elad from

7 obtaining permanent residence through his marriage to Andrew.

8

43. Unlike the U.S. government, the Canadian government recognized the

9 validity of Andrew and Elad’s marriage. As a result, Elad could become a legal

10 resident of Canada on the basis of his marriage to Andrew. Thus, Andrew and Elad

11 decided to move to Toronto, Canada to begin building their lives—and family—as

12 a married couple.

13

44. In the summer of 2015, Andrew and Elad selected an anonymous egg

14 donor to enable them to have and raise children as a couple.

15

45. In February 2016, the surrogate became pregnant with one embryo

16 created using sperm from Andrew and one embryo created using sperm from Elad.

17 Andrew and Elad intended to be the sole parents of the resulting children.

18

46. On September 16, 2016, Andrew and Elad’s children—E.J. and A.J.—

19 were born in Mississauga, a city in Ontario, Canada. Andrew and Elad, and only

20 Andrew and Elad, are listed as the parents on both of their sons’ birth certificates,

21 and recognized as their sons’ parents under Canadian law.

22

47. E.J. and A.J. are part of the same family, with the same parents, who

23 are married to each other now, as they were at the time both children were born. In

24 terms of their relationship to Andrew, the only distinction between E.J. and A.J. is

25 that sperm from Andrew’s husband instead of from Andrew was used to conceive

26 E.J. That distinction should make no difference to E.J.’s eligibility for U.S.

27 citizenship at birth because E.J. demonstrably was not born out of wedlock. But to

28 the State Department, this is all the difference in the world.

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1

2

B. The Application of the State Department’s Policy to the DvashBanks Family

3

48. Shortly after E.J. and A.J. were born, their parents took them to the U.S.

4 consulate in Toronto to apply for their Consular Reports of Birth Abroad and U.S.

5 passports. Andrew and Elad brought both boys’ birth certificates, their marriage

6 certificate, declarations of parentage, and payment for the application fees.

7

49. After hours of waiting, Andrew and Elad finally spoke with a consular

8 official. Notwithstanding Andrew’s U.S. citizenship, his status as Elad’s husband,

9 and his status as a parent of both E.J. and A.J., the official informed Andrew and

10 Elad that further questions would be required. The official then began to inquire

11 into the highly personal details of how Andrew and Elad—a married couple—had

12 children together. The official asked how the spouses had come to create fertilized

13 embryos with their sperm, the identity of the egg donor, and which spouse had

14 provided sperm for which child. Andrew and Elad had planned to keep the genetic

15 identity of their children private so that both children would feel equally connected

16 to each of their parents. In the hope of ensuring that the U.S. government would

17 recognize their children’s citizenship, however, they disclosed the genetic links they

18 had to E.J. and A.J.

19

50. When Andrew and Elad explained that E.J. was conceived using Elad’s

20 sperm, the consular official required that the children undergo a DNA test to

21 determine whether either child was genetically linked to Andrew. She stated that

22 without the biological link, neither child would qualify for U.S. citizenship at birth.

23 The official did not identify any statutory, regulatory, or other authority supporting

24 this demand.

25

51. Andrew and Elad left the consulate shocked, humiliated, and hurt.

26 They were also deeply offended by the ramifications of what they had heard. The

27 U.S. government did not recognize Andrew as the parent of his son E.J., regardless

28 of what E.J.’s birth certificate and applicable Canadian law said, and regardless of

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1 the daily reality of Andrew and E.J.’s parent-child relationship.

2

52. Andrew and Elad submitted DNA tests for both E.J. and A.J. to the

3 consulate. Soon thereafter, Andrew and Elad received two letters in the mail, both

4 dated March 2, 2017. One letter granted A.J.’s application for his Consular Report

5 of Birth Abroad and a U.S. passport. The other letter (the “Letter”) notified Andrew

6 that E.J.’s application had been denied. (A copy of this letter is appended to this

7 Complaint at Exhibit C.) It was then that Andrew and Elad finally realized that

8 although they were the legal parents of two boys who were born on the same day,

9 minutes apart from each other, the State Department considered only one of their

10 boys to be a U.S. citizen. To the U.S. government, E.J. was an alien.

11

53. The Letter denying E.J.’s application, addressed to Andrew, stated that

12 “after careful review of the evidence you submitted with your child’s application, it

13 has been determined that his claim to U.S. citizenship has not been satisfactorily

14 established, as you are not his biological father.” The Letter went on to reference

15 the “Immigration and Nationality Act (INA) of 1952,” which according to the Letter

16 “requires among other things, a blood relationship between a child and the U.S.

17 citizen parent in order for the parent to transmit U.S. citizenship.” The letter did not

18 include any further citation to more specific statutory provisions or authority.

19

54. The Letter provided Andrew and E.J. no mechanism to appeal the State

20 Department’s denial, and merely suggested Andrew “contact the nearest office of

21 U.S. Citizenship and Immigration Services regarding [E.J.’s] citizenship status.”

22

55. Andrew reached out to his representative, Congressman Ted Lieu, for

23 assistance, and Congressman Lieu’s office contacted the State Department. In an

24 October 2, 2017 letter to Congressman Lieu, the State Department’s Office of

25 American Citizen Services and Crisis Management also failed to cite any statute or

26 regulation to explain the reasons for the Dvash-Banks family’s situation and the

27 denial of a Consular Report of Birth Abroad and U.S. passport for E.J. (A copy of

28 this letter is appended to this Complaint as Exhibit D.) The State Department’s

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1 Office of American Citizen Services and Crisis Management merely suggested that

2 Andrew and Elad find “an immigration lawyer who can help explain the avenues”

3 through which E.J. could “acquire citizenship through naturalization,” or that they

4 should “consider applying for a certificate of citizenship directly from USCIS.”

5

56. The State Department’s Office of American Citizen Services and Crisis

6 Management did not explain how, or why, USCIS would recognize that E.J. had

7 acquired citizenship at birth when the consulate had not. Furthermore, the USCIS

8 application for a certificate of citizenship requires the applicant to have “at least one

9 biological or adoptive U.S. citizen parent.” Instructions for Application for

10 Certificate of Citizenship, OMB No. 1615-0057. Because E.J. does not have at least

11 one biological or adoptive U.S. citizen parent, Andrew and Elad could not complete

12 an application for citizenship on E.J.’s behalf that would satisfy the requirements of

13 USCIS.

14

57. The denial of E.J.’s Consular Report of Birth Abroad meant that E.J.

15 was denied a U.S. passport as well. This has caused difficulties and humiliation for

16 the Dvash-Banks family. After the Supreme Court’s decision in Windsor reversed

17 the Defense of Marriage Act, ensuring that Andrew and Elad’s marriage would be

18 recognized and respected in the U.S., Andrew and Elad decided to fulfill their long-

19 held hope of moving to California so that they could live near Andrew’s family, and

20 moved to Los Angeles on June 24, 2017.

21

58. Andrew, Elad, E.J., and A.J. all live in Los Angeles, California

22 together. Both Andrew and Elad work in Los Angeles and they have no intention of

23 moving from Los Angeles. They must keep their home in Toronto as a contingency

24 because although Andrew and A.J. both have U.S. Citizenship and Elad has

25 permanent residency in the U.S., immigration officials would allow E.J. to enter the

26 United States only on a tourist visa. The stay authorized upon that entry expired on

27 December 23, 2017. All of Andrew and Elad’s professional, personal, and familial

28 commitments are in constant jeopardy of being undone if the Department of

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1 Homeland Security deports E.J.

2

59. Given the severity of these consequences, Andrew and Elad have

3 submitted an application for a green card on E.J.’s behalf to minimize the risk of

4 deportation proceedings and having to face the choice of staying together as a family

5 or staying in this country. However, Andrew and Elad should not have to bear these

6 additional burdens simply to ensure they can continue to raise their sons together in

7 this country. Their current need to do so highlights the inequality and indignity

8 imposed by the State Department’s classification of children born to parents in same-

9 sex marriages as children born out of wedlock.

10

60. Andrew and Elad have also suffered indignity and emotional pain

11 because the U.S. government recognizes neither their marriage nor their parental

12 rights in determining whether their children were born in or out of wedlock.

13 According to the U.S. government, Andrew and Elad could never have children in

14 wedlock because they could not both be married to each other and be the biological

15 parents of the same child. As a result, the U.S. government is undermining,

16 disrespecting, and rendering unequal the intimate relationship between same-sex

17 married couples and the children they have and raise together within family units

18 founded on the sanctity of marriage. They also worry about the obvious inequity the

19 State Department’s decision causes between their twin sons, the impact on E.J. and

20 A.J. of their different citizenship status and the awareness that the U.S. government

21 considers them illegitimate notwithstanding their parents’ valid marriage.

22

C. The State Department Erroneously Deemed E.J. to Have Been

23

Born “Out of Wedlock”

61. As alleged herein, E.J. acquired U.S. citizenship at birth under

24

Section 301(g) of the INA. Pursuant to Section 301(g), a U.S. citizen at birth

25 includes:
26

27

a person born outside the geographical limits of the United States and its outlying possessions of parents, one of whom is an alien, and the

28

other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying

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1

possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.

2

62. Because E.J. is not a child born out of wedlock, his citizenship status is

3

governed by Section 301(g). E.J. clearly satisfies the criteria for U.S. citizenship at

4 birth under Section 301(g). That is so because his father Andrew has lived in the
5

U.S. for most of his life and clearly satisfies the statutory residence requirements of

6

physical presence in the U.S. for no less than five years, including at least two after

7 turning fourteen years old.
8

63. The only way that E.J. would not be a citizen at birth under the INA is

9

if E.J. were a child born out of wedlock, as the State Department has deemed him.

10 That determination was erroneous both as a matter of statutory interpretation and as
11

a matter of the Constitution’s guarantee of due process.

12

13

D. The State Department’s Policy Unconstitutionally Discriminates on the Basis of Sex and Sexual Orientation

14

64. The decision to marry—like the decision to have children—is one of

15 the most deeply personal choices one can make. For the liberty guaranteed by the

16 Constitution to be meaningful and effective, individuals must be able to make these

17 fundamental and personal life choices freely, with dignity and without unwarranted

18 consequences for the individual and his family. Accordingly, the Constitution’s

19 guarantees of due process and equal protection apply with full force to an

20 individual’s fundamental right to marry the spouse of his or her own choosing,

21 including a spouse of the same sex. The Constitution requires not only recognition

22 and protection of the right to enter into same-sex marriages, but also affords same-

23 sex marriages the full constellation of legal rights and benefits—including dignity

24 and respect—that have traditionally flowed from opposite-sex marriages.

25

65. The State Department’s policy and its application to E.J. are

26 unconstitutional because they violate E.J.’s and Andrew’s right to due process under

27 the Fifth Amendment of the Constitution. As discussed above, the State Department

28 refuses to apply Section 301(g) of the INA to E.J. based on its erroneous and

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1 demeaning classification of him as a child born out of wedlock. Apparently on that

2 basis alone, it refuses to recognize E.J.’s citizenship.

3

66. Under the State Department’s policy, citizenship through Section 301

4 is presumptively available to any person the State Department deems born “in

5 wedlock”—a class the agency has construed to consist exclusively of children

6 conceived and carried by women who are married to men.

7

67. Nothing in the INA or the Constitution permits the State Department’s

8 limitation of birthright citizenship under Section 301 to the children of U.S. citizens

9 in opposite-sex marriages. The State Department’s requirement is unfounded and

10 ensures unconstitutionally unequal treatment of the children of same-sex married

11 couples.

12

68. The government has provided no rationale for this discriminatory

13 policy. Furthermore, there is no legitimate governmental purpose that could justify

14 limiting birthright citizenship in this way. To the contrary, such an approach

15 undermines the congressionally established, legitimate, and important government

16 purposes that underlie the INA itself. For example, the State Department’s approach

17 ultimately makes it harder, not easier, for families like the Dvash-Bankses to stay

18 together. This undermines the INA’s statutory intent of “provid[ing] for a liberal

19 treatment of children and . . . keeping families of United States Citizens and

20 Immigrants united.” H.R. Rep. 85-1199, at 2020 (1957).

21

69. In amending the INA, Congress recognized that no harm could come

22 from the liberal treatment of children with respect to citizenship, and that the

23 consequences of such treatment would fulfill “the clearly expressed legislative

24 intention to keep together the family unit wherever possible.” Id. at 2021.

25

70. Although the State Department’s policy may in theory apply to

26 marriages between spouses of opposite sexes, its overwhelming effect is to deprive

27 spouses in same-sex marriages—and their children—of fundamental rights and

28 equal dignity as citizens under the law. The fact that some opposite-sex married -16-

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1 couples may use assisted reproductive technology to conceive a child does not

2 change the discriminatory nature or harmful effects of the government’s policy on

3 same-sex couples.

4

71. In addition to discriminating against E.J., the State Department’s policy

5 discriminates against Andrew by denying him the ability to transmit citizenship to a

6 child conceived with his husband’s sperm, born during their marriage, and raised as

7 a child of that marriage.

8

COUNT I — DECLARATORY JUDGMENT THE STATE DEPARTMENT’S POLICY VIOLATES THE DUE PROCESS

9

GUARANTEE OF THE FIFTH AMENDMENT

10 72. Plaintiffs repeat, reallege, and incorporate by reference the allegations
11 contained in paragraphs 1 through 71 as if fully set forth herein.
12 73. The Fifth Amendment of the Constitution prohibits the federal
13 government from depriving individuals of their rights without due process of law.
14 74. The Due Process Clause of the Fifth Amendment prohibits the federal
15 government from depriving any person of life, liberty, or property without due
16 process of law, as well as from depriving any person of equal protection under the
17 law.
18 75. Section 301 of the INA entitles U.S. citizens to confer citizenship at
19 birth on their children born abroad in wedlock. The INA does not require U.S.
20 citizens to be in opposite-sex marriages to confer citizenship under Section 301. Nor
21 does the INA require a child’s biological parents to be married to each other for the
22 child to be considered born in wedlock, and therefore eligible for citizenship under
23 24 Section 301. The INA merely requires that the child is not born out of wedlock.
76. Defendants have violated and continue to violate the Fifth Amendment 25
of the United States Constitution by enforcing a policy that excludes U.S. citizens in 26
same-sex marriages from conferring citizenship pursuant to Section 301, while 27
restricting access to citizenship under that provision to the children of opposite-sex 28
married couples. Defendants’ policy has-1d7e-prived and continues to deprive Plaintiffs

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1 of their rights to acquire and confer citizenship at birth pursuant to INA Section 301.

2 As a result of Defendants’ policy, Plaintiffs have suffered, and will suffer,

3 irreparable harm to their protected interest in conferring, and having recognized,

4 E.J.’s U.S. citizenship.

5

77. There is no rational, legitimate, or substantial government interest

6 served by denying the children of same-sex married couples access to citizenship at

7 birth pursuant to Section 301 of the INA based on the sex and/or sexual orientation

8 of the child’s citizen-parent. Nor is there any rational, legitimate, or substantial

9 government interest served by denying U.S. citizens in same-sex marriages the right

10 to confer citizenship on children born abroad during their marriage based on the

11 citizen’s sex and/or sexual orientation or exercise of the protected right to enter into

12 a same-sex marriage. Defendants have offered no justification for precluding

13 Andrew from conferring on E.J. citizenship pursuant to Section 301.

14

78. As a result of Defendants’ arbitrary, discriminatory, and unlawful

15 implementation and enforcement of its policy prohibiting U.S. citizens in same-sex

16 marriages from conferring U.S. citizenship on their children born in wedlock outside

17 the United States, Plaintiffs have suffered injuries and will suffer further irreparable

18 harm to their constitutional rights under the Fifth Amendment if the State

19 Department’s policy is not declared unconstitutional and enjoined.

20

79. Plaintiffs have no adequate remedy at law.

21

COUNT II — ADMINISTRATIVE PROCEDURE ACT

22

80. Plaintiffs repeat, reallege, and incorporate by reference the allegations

23 contained in paragraphs 1 through 71 as if fully set forth herein.

24

81. Plaintiffs have suffered a “legal wrong because of agency action.”

25 5 U.S.C. § 702.

26

82. The Administrative Procedure Act bars any agency action that is

27 “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

28 law.” 5 U.S.C. § 706(2)(A).

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1

83. Defendants’ interpretation of Sections 301 and 309, as embodied in the

2 FAM, conflicts with the clear language and statutory purpose of the INA. This

3 interpretation, published without any public comment, is arbitrary, capricious, and

4 not in accordance with the INA.

5

84. Plaintiffs have suffered and continue to suffer legal wrongs because of

6 the U.S. Embassy’s decision to deny the Consular Report of Birth Abroad

7 application submitted on behalf of E.J.

8

85. Plaintiffs have exhausted all administrative remedies available to them

9 as of right.

10

86. Plaintiffs have no other recourse to judicial review other than this

11 action.

12

87. Defendants’ exclusion of children born abroad in same-sex marriages

13 from the category of children who qualify for citizenship at birth as born to valid

14 marriages lacks a rational basis, is arbitrary, and is contrary to law.

15

88. Plaintiffs have no adequate remedy at law.

16

COUNT III — DECLARATION THAT E.J. D.-B. IS A U.S. CITIZEN

17

89. Plaintiffs repeat, reallege, and incorporate by reference the allegations

18 contained in paragraphs 1 through 71 as if fully set forth herein.

19

90. 8 U.S.C. § 1503(a) authorizes this Court to make a de novo judgment

20 as to the citizenship status of E.J.

21

91. Andrew is a U.S. citizen, who was born in the U.S. and physically

22 present in the U.S. for a period of 24 years, starting from the time he was born in

23 California in 1981 until the time he moved to Israel in 2005.

24

92. Andrew and Elad were legally married to each other by a judge in

25 Canada on August 19, 2010. They have been married to each other continuously

26 since that date.

27

93. Their sons, A.J. and E.J., were born on September 16, 2016 in

28 Mississauga, Canada, during Andrew’s and Elad’s marriage.

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1

94. Andrew and Elad are E.J.’s parents. They are identified as E.J.’s

2 parents on his birth certificate and recognized as his parents under Canadian law.

3

95. Section 301(g) of the INA is applicable to E.J.’s citizenship claim

4 because E.J. is the child of parents who were married to each other at the time of his

5 birth, and one of E.J.’s married parents is a U.S. citizen. Section 309(a) of the INA

6 is inapplicable to E.J.’s citizenship claim because he is the child of married parents,

7 and therefore is not a child born out of wedlock.

8

96. E.J. is a U.S. citizen at birth pursuant to Section 301(g) because he was

9 born: (1) outside the geographical limits of the United States and its outlying

10 possessions, (2) to parents one of whom is an alien, and the other a citizen of the

11 United States, (3) to a parent who, prior to the birth of such person, was physically

12 present in the United States or its outlying possessions for a period or periods totaling

13 not less than five years, at least two of which were after attaining the age of fourteen

14 years.

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SULLIVAN & CROMWELL LLP

PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that this Court: i. Declare unconstitutional, and a violation of the INA, the State
Department’s policy of classifying the children of same-sex married couples as “children born out of wedlock,” and its consequent refusal to recognize E.J.’s citizenship status on that basis, both on its face and as applied to Plaintiffs, Andrew Mason Dvash-Banks, in his individual capacity, and on behalf of his son, E.J. D.-B.; ii. Declare E.J. D.-B. a U.S. citizen at birth; iii. Permanently enjoin Defendants from continuing to classify the children of same-sex married couples as “children born out of wedlock,” and denying the children of same-sex married couples the right to acquire citizenship at birth pursuant to Section 301(g) on that basis; and iv. Award Plaintiffs attorneys’ fees and costs as allowed by law, and such other relief as the Court deems just and proper, including an award of reasonable litigation costs incurred in this proceeding pursuant to 28 U.S.C. § 2412.
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1 Dated: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

January 14, 2019

SULLIVAN & CROMWELL LLP

/s/ Alexa M. Lawson-Remer Alexa M. Lawson-Remer (SBN 268855) lawsonr@sullcrom.com SULLIVAN & CROMWELL LLP 1888 Century Park East, Suite 2100 Los Angeles, California 90067-1725 Telephone: (310) 712-6600 Facsimile: (310) 712-8800 Tedheelomdaonret@Esduelllmcraonm(.pcroomhoc vice) Jkelessinicj@a Ksulellicnro(pmr.ocohmoc vice) SULLIVAN & CROMWELL LLP 125 Broad Street New York, New York 10004-2498 Telephone: (212) 558-4000 Facsimile: (212) 558-3588 Aaron C. Morris (pro hoc vice) aIMmMorIrGisR@AimTmIOigNraEtiQoUneAqLuaITliYty.org 40 Exchange Place, Suite 1300 New York, New York 10005-2744 Telephone: (212) 714-2904 Attorneys for Plaintiffs
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FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

 
 Case 2:18-cv-00523-JFW-JC Document 123 Filed 02/21/19 Page 1 of 11 Page ID #:4346

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES -- GENERAL

Case No. CV 18-523-JFW(JCx)

Date: February 21, 2019

Title:

Andrew Mason Dvash-Banks, et al. -v- Michael R. Pompeo, et al.

PRESENT: HONORABLE JOHN F. WALTER, UNITED STATES DISTRICT JUDGE

Shannon Reilly Courtroom Deputy

None Present Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: None

ATTORNEYS PRESENT FOR DEFENDANTS: None

PROCEEDINGS (IN CHAMBERS):

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT [filed 1/7/19; Docket No. 83]; and

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT [filed 1/7/19; Docket No. 89]

On January 7, 2019, Plaintiffs Andrew Mason Dvash-Banks (“Andrew”) and E.J., by and through his guardian ad litem Elad Dvash-Banks, (“E.J.”) (collectively, “Plaintiffs”) filed a Motion for Partial Summary Judgment. On January 14, 2019, Defendants the United States Department of State (the “State Department”) and Michael R. Pompeo (“Pompeo”) (collectively, “Defendants”) filed their Opposition. On January 22, 2019, Plaintiffs filed a Reply. On January 7, 2019, Defendants filed a Motion for Partial Summary Judgment. On January 14, 2019, Plaintiffs filed their Opposition. On January 22, 2019, Defendants filed a Reply. Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court found these matters appropriate for submission on the papers without oral argument. The matters were, therefore, removed from the Court’s February 11, 2019 hearing calendar and the parties were given advance notice. After considering the moving, opposing, and reply papers, and the arguments therein, the Court rules as follows:

I.

Factual and Procedural Background1

1 The facts in this case are largely undisputed. To the extent that the Court has relied on evidence to which the parties have objected, the Court has considered and overruled those objections. As to the remaining objections, the Court finds that it is unnecessary to rule on those

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A. Factual Background
Andrew is a citizen of the United States, who was born, raised, and attended college in California.2 Andrew continuously resided in the United States from his birth in 1981 to October 2005. In 2007, Andrew enrolled in and attended a master’s degree program in Israel. In 2008, Andrew met his now-husband, Elad Dvash-Banks (“Elad”), who is an Israeli citizen. In 2010, Andrew and Elad moved to Canada and they were married in Toronto on August 19, 2010.
When Andrew and Elad, who are both men, decided to start a family, they did so using assisted reproductive technology (“ART”). As part of the ART process, Andrew and Elad provided their respective genetic material to create embryos using eggs from an anonymous egg donor (the “Donor”). In December 2015, Andrew and Elad entered into a written contract with a gestational surrogate (the “Gestational Surrogate”) to carry a maximum of two embryos to term. Two embryos, one of which was created using genetic material from Elad and the Donor and the other of which was created using genetic material from Andrew and the Donor, were then implanted into the Gestational Surrogate, who became pregnant with twins.
On September 16, 2016, E.J. and his brother, A.J. (collectively, the “Twins”), were born four minutes apart in Ontario, Canada. Andrew, Elad, and the Twins have lived together as a family since the Twins’ birth. On September 28, 2016, Andrew and Elad petitioned the Superior Court of Justice in Toronto, Ontario, to declare them to be the legal parents of E.J. and A.J. The court granted the application, and directed the Deputy Registrar General for the Province of Ontario to register the birth of the children and to show Andrew and Elad as the legal parents of the children.
On January 24, 2017, four months after the Twins were born, Andrew, Elad, and the Twins appeared in person at the U.S. Consulate in Toronto (the “Toronto Consulate”) in connection with applications for documents evidencing each Twin’s U.S. citizenship – specifically, a Consular Report of Birth Abroad (“CRBA”) and a U.S. passport.3 The applications submitted to the Toronto Consulate disclosed that the children had been born using ART. Andrew and Elad provided the required documentation for E.J. and A.J., including their Ontario Statements of Live Birth, which identified Andrew and Elad as A.J.’s and E.J.’s parents; evidence of Andrew’s U.S. citizenship and residency history; and Andrew’s and Elad’s marriage certificate.
Vice Consul Frances Terri Day (“Day”) was assigned to adjudicate the applications. Day accepted Andrew’s and Elad’s Ontario marriage license as proof of their marriage and A.J.’s and E.J.’s Statements of Live Birth as timely filed Canadian birth certificates. Day also accepted the Statements of Live Birth, which identified Andrew and Elad as A.J.’s and E.J.’s parents, as proof of A.J.’s and E.J.’s parentage. During the interview, and after consulting with her colleagues, Day informed Andrew and Elad that, absent evidence of a biological relationship with Andrew, neither Twin would qualify for U.S. citizenship. Day told Andrew and Elad that, if they opted to proceed

objections because the disputed evidence was not relied on by the Court. 2 Andrew holds dual U.S. and Canadian citizenship. 3 CRBAs and passports prove the citizenship status of their holders. 22 U.S.C. § 2705.

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with the Twins’ applications, they would have to provide additional evidence demonstrating the existence of a biological relationship required by the State Department. Day provided the family the option of submitting DNA evidence to prove such relationship, and a letter outlining relevant steps should they choose to pursue that option. Andrew and Elad arranged to have DNA testing conducted and submitted in support of E.J.’s and A.J.’s applications.
Following the interview, Andrew underwent DNA testing, the results of which established that A.J. was the biological child of Andrew, and E.J. was not. On March 2, 2017, the Toronto Consulate issued a CRBA for A.J. By letter to Andrew dated that same day, Day informed the Dvash-Banks family that the State Department had denied E.J.’s applications for a CRBA and a U.S. passport.4 The basis for the denial of E.J.’s applications for a CRBA and a U.S. passport was the lack of evidence of a biological connection between Andrew and E.J. To arrive at this determination, Day applied State Department policies memorialized in the State Department’s internal Foreign Affairs Manual (“FAM”) for adjudicating U.S. citizenship applications for children born through the use of ART. Day’s letter constituted a final adjudication of E.J.’s applications.
B. Procedural History
On January 22, 2018, Andrew filed this action on behalf of himself and E.J.5, challenging Defendants’ decisions to deny E.J.’s applications for a CRBA and a U.S. passport. On January 14, 2019, Plaintiffs filed a First Amended Complaint, alleging three claims: (1) a claim under the Declaratory Judgment Act alleging a violation of Plaintiffs’ substantive due process rights; (2) a claim alleging a violation of the Administrative Procedure Act (“APA”); and (3) a claim under 8 U.S.C. § 1503 seeking an order that E.J. is a U.S. citizen.
In their Motion for Partial Summary Judgment, Plaintiffs move for summary judgment on their first claim alleging a violation of their substantive due process rights and their third claim for a declaration pursuant to 8 U.S.C. § 1503 that E.J. is a U.S. citizen. In their Motion for Partial Summary Judgment, Defendants move for summary judgment on Plaintiffs’ first claim alleging a violation of Plaintiffs’ substantive due process rights and Plaintiffs’ second claim for violation of the APA.
II. Legal Standard
Summary judgment is proper where “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). The moving party has the burden of demonstrating the absence of a genuine issue of fact for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party meets its burden, a party opposing a properly made and supported motion for summary judgment may not rest upon mere denials but must set out specific facts showing a genuine issue for trial. Id. at 250; Fed. R. Civ. P. 56(c), (e); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)

4 In addition to issuing CRBA, the State Department also grants and issues U.S. passports. See 22 U.S.C. § 211a.
5 On December 4, 2018, Elad was appointed guardian ad litem for E.J. in this action.

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(“A summary judgment motion cannot be defeated by relying solely on conclusory allegations unsupported by factual data.”). In particular, when the non-moving party bears the burden of proving an element essential to its case, that party must make a showing sufficient to establish a genuine issue of material fact with respect to the existence of that element or be subject to summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “An issue of fact is not enough to defeat summary judgment; there must be a genuine issue of material fact, a dispute capable of affecting the outcome of the case.” American International Group, Inc. v. American International Bank, 926 F.2d 829, 833 (9th Cir. 1991) (Kozinski, dissenting).
An issue is genuine if evidence is produced that would allow a rational trier of fact to reach a verdict in favor of the non-moving party. Anderson, 477 U.S. at 248. “This requires evidence, not speculation.” Meade v. Cedarapids, Inc., 164 F.3d 1218, 1225 (9th Cir. 1999). The Court must assume the truth of direct evidence set forth by the opposing party. See Hanon v. Dataproducts Corp., 976 F.2d 497, 507 (9th Cir. 1992). However, where circumstantial evidence is presented, the Court may consider the plausibility and reasonableness of inferences arising therefrom. See Anderson, 477 U.S. at 249-50; TW Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 631-32 (9th Cir. 1987). Although the party opposing summary judgment is entitled to the benefit of all reasonable inferences, “inferences cannot be drawn from thin air; they must be based on evidence which, if believed, would be sufficient to support a judgment for the nonmoving party.” American International Group, 926 F.2d at 836-37. In that regard, “a mere ‘scintilla’ of evidence will not be sufficient to defeat a properly supported motion for summary judgment; rather, the nonmoving party must introduce some ‘significant probative evidence tending to support the complaint.’” Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997).
III. Discussion
A. The Immigration and Nationality Act and Its Enforcement by the State Department and the Department of Homeland Security
The Immigration and Nationality Act (“INA”) specifies the eligibility requirements for U.S. citizenship at birth. For children born abroad, these requirements differ for children born to married parents, who are subject to 8 U.S.C. § 1401 (“Section 301”), and children “born out of wedlock,” who are subject to 8 U.S.C. § 1409 (“Section 309”). Section 301(g) provides, in part, that a person born outside the United States
of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States . . . not less than five years, at least two of which were after attaining the age of fourteen
shall be a U.S. citizen. 8 U.S.C. § 1401(g); see also Tuan Anh Nguyen v. INS, 533 U.S. 53, 59 (2001).
Section 309 of the INA, which is entitled “Children born out of wedlock,” provides several additional means by which a child born outside the United States may acquire U.S. citizenship at birth in addition to those described in Section 301. Specifically, Section 309(a) provides that a person born outside the United States and “out of wedlock” shall be a U.S. citizen if

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(1) a blood relationship between the person and the father is established by clear and convincing evidence,
(2) the father had the nationality of the United States at the time of the person’s birth,
(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and
(4) while the person is under the age of 18 years – (A) the person is legitmated under the law of the person’s residence or domicile, (B) the father acknowledges paternity of the person in writing under oath, or (C) the paternity of the person is established by adjudication of a competent court.
8 U.S.C. § 1409(a). Although the word “wedlock” does not appear anywhere in Section 301, courts have consistently interpreted that section as applying to children born abroad to married parents, in part, because of the differences between Sections 301 and 309, including the fact that Section 309 is entitled “Children born out of wedlock.” See, e.g., Sessions v. Morales-Santana, 137 S. Ct. 1678, 1686 (2017) (referring to Section 301(g) as “[a]pplicable to married couples”). In comparing the two statutes, Section 301(g) does not contain the express language of Section 309(a) requiring a “blood relationship between the person and the father” in order for citizenship to be acquired at birth.
State Department guidance regarding interpretation and administration of the INA can be found in its FAM.6 Despite Section 301’s silence on the issue, the FAM purports to impose a biological relationship test under Section 301 on applicants for a CRBA. It does so by requiring that, to be considered born “in wedlock” (and, thus, to be covered by Section 301), a child born outside of the United States must have a biological relationship with both of his or her married parents. For example, the FAM states that “[t]o say a child was born ‘in wedlock’ means that the child’s biological parents were married to each other at the time of the birth of the child.” 8 FAM § 304.1-2. The basis for the State Department’s imposition of a biological requirement is its strained interpretation of the language in Section 301(g) “a person . . . born . . . of parents one of whom is a . . . citizen of the United States.”7

6 The State Department is responsible for U.S. citizenship determinations for individuals born abroad. 8 U.S.C. § 1104(a); 22 C.F.R. § 50.7; see also 22 U.S.C. § 2705. However, the Department of Homeland Security (“DHS”) is responsible for citizenship determinations made in the United States. See 8 U.S.C. § 1103(a)(1). Specifically, the U.S. Citizenship and Immigration Services (“USCIS”) within DHS adjudicates applications for certificates of citizenship. See 8 U.S.C. § 1452.
7 The FAM states that “[s]ince 1790, there have been two prerequisites for transmitting U.S. citizenship at birth to children born abroad.” 7 FAM 1131.2. First, “at least one biological parent must have been a U.S. citizen when the child was born.” Id. Second, the “U.S. citizen parent(s) must have resided or been physically present in the [U.S.] for the time required by the law in effect when the child was born.” Id. Therefore, Defendants interpret the phrase “born … of parents” in Section 301 to include a biological connection between the child and the referenced parents. The

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The FAM represents the State Department’s unilateral declarations and is not the product of a formal adjudication or notice-and-comment rulemaking or congressional action. See Scales v. INS, 232 F.3d 1159, 1166 (9th Cir. 2000); Jaen v. Sessions, 899 F.3d 182, 187 n.4 (2d Cir. 2018). For example, in 2014, the State Department decided to change its interpretation of born “in wedlock” to include children born of a gestational mother who is the child’s legal parent, even if she did not provide the egg from which the child was conceived. This change was not occasioned by any corresponding amendments to the law or any other congressional action. Similarly, State Department employees began drafting a memorandum exploring possible ways to further modify the State Department’s definition of “in wedlock” to cover other children born through the use of ART, but ultimately the State Department did not make that change.
B. Defendants Are Entitled to Summary Judgment on Plaintiffs’ APA Claim.
In their second claim, brought under Section 706(2)(A) of the APA, Plaintiffs allege that Defendants’ denial of E.J.’s CRBA application – and more broadly an alleged exclusion of children born abroad in same-sex marriages from the category of children who qualify for citizenship at birth under 8 U.S.C. § 1401(g) – lacks a rational basis, is arbitrary, and is contrary to law. Defendants argue that APA review is not available for Plaintiffs because there is an adequate remedy at law, which precludes Plaintiffs’ APA claim. Specifically, Defendants argue that E.J. can, and has, brought a separate claim under 8 U.S.C. § 1503 challenging the State Department’s denials of the CRBA and passport applications, which provides a path by which E.J. may assert a claim that he is a U.S. citizen. In addition, Defendants argue that E.J. can also apply for a certificate of citizenship from USCIS, which provides equivalent proof of U.S. citizenship. Plaintiffs argue that asking E.J. to seek relief from a second agency, the USCIS, is not an adequate remedy under the APA. Plaintiffs also argue that the relief provided by Section 1503 is inadequate because it is limited to a declaration of E.J.’s citizenship status and does not provide all the remedies provided for under the APA, such as injunctive relief.
The APA limits judicial review to “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704; U.S. Army Corps of Eng’rs v. Hawkes Co., Inc., 136 S. Ct. 1807, 1813 (2016). “[T]he Supreme Court interpreted § 704 as precluding APA review where Congress has otherwise provided a special and adequate review procedure.” Garcia v. Vilsack, 563 F.3d 519, 522 (D.C. Cir. 2009) (citation and internal quotation marks omitted); Bowen v. Massachusetts, 487 U.S. 879, 903 (1988); Coos Cnty. Bd. of County Com’rs v. Kempthorne, 531 F.3d 792, 810 (9th Cir. 2008).
In this case, Plaintiffs have brought a separate claim under Section 1503(a), which is the statute Congress specifically enacted to provide a remedy for an individual who is denied a “right or privilege as a national of the United States” by the federal government on “the ground that [s]he is not a national of the United States.” See 8 U.S.C. § 1503(a). Where an applicant challenges the State Department’s denial of a right or privilege of U.S. citizenship on the basis that the plaintiff

State Department argues that the “born . . . of parents” language in Section 301 has an inherently biological connotation, and can reasonably be read and understood to serve a similar function and purpose to the “blood relationship” language of Section 309(a) of ensuring a biological connection between a child and his or her parents.

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is not a U.S. citizen, courts have consistently concluded that Section 1503(a) offers an adequate alternative remedy to APA review. See, e.g., Ortega-Morales v. Lynch, 168 F. Supp. 3d 1228, 1233–34 (D. Ariz. 2016) (“Because 8 U.S.C. § 1503(a) affords Plaintiffs a right of action, the APA does not apply”); Esparza v. Clinton, 2012 WL 6738281, at *1 (D. Or. Dec. 21, 2012) (dismissing the plaintiff’s APA claim and holding “[t]hat ‘right or privilege as a national of the United States,’ a passport as sought by plaintiff here, is exactly the relief provided for by 8 U.S.C. § 1503"); Alsaidi v. U.S. Dep’t of State, 292 F. Supp. 3d 320, 326 (D.D.C. 2018) (dismissing the plaintiff’s APA claim and holding that “[t]o renew her passport, plaintiff will require proof of citizenship, and under 8 U.S.C. § 1503(a), she may accomplish this directly through de novo review in the federal district court where she resides (i.e., the Northern District of California). This constitutes an adequate alternative remedy to achieve plaintiff's desired relief”).
In addition, although Plaintiffs argue that Section 1503’s remedies are inadequate because Plaintiffs seek injunctive and declaratory relief under the APA and Plaintiffs are limited to declaratory relief and no injunctive relief under section 1503(a), the Court disagrees. First, the APA does not allow Plaintiffs to seek the type of “wholesale improvement of [a] program by court decree,” that they do in asking the Court to declare the State Department’s policy of classifying the children of same sex married couples as “children born out of wedlock” unconstitutional and a violation of the INA. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891 (1990). Second, Plaintiffs seek to permanently enjoin Defendants from continuing to classify all children of same sex married couples as “children born out of wedlock” and denying those children the right to acquire citizenship at birth pursuant to Section 301(g) on that basis, but injunctions “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)); see also Gill v. Whitford, 138 S.Ct. 1916, 1933 (2018); California v. Azar, 911 F.3d 558, 584 (9th Cir. 2018); City & Cnty. of San Francisco v. Trump, 897 F.3d 1225, 1244 (9th Cir. 2018). The injunction sought by Plaintiffs is well beyond that needed to provide Plaintiffs with complete relief, namely a declaration that E.J. is a U.S. citizen.
Accordingly, Defendants are entitled to summary judgment on Plaintiffs’ second claim for violation of the APA.
C. Plaintiffs Are Entitled to Summary Judgment on Their Section 1503 Claim.
In their third claim, Plaintiffs seek a declaration pursuant to Section 1503 that E.J. is and was a U.S. citizen at birth. In their Motion for Partial Summary Judgment, Plaintiffs argue that, pursuant to Section 1503, E.J. is entitled to a declaration that he acquired U.S. citizenship at birth under Section 301(g) of the INA because the State Department’s biological relationship requirement is inconsistent with the text and legislative intent of Section 301(g). Defendants argue that because Plaintiffs now live in the United States, Andrew can apply for a certificate of citizenship on behalf of E.J. from USCIS, and, thus, the Court should deny without prejudice Plaintiffs’ Motion for Partial Summary Judgment with respect to the Section 1503 claim until Plaintiffs seek a certificate of citizenship for E.J. from USCIS.
Under Section 1503, any person who is within the United States who “claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency . . . may institute an action . . . for a judgment declaring him to be a national

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of the United States.” 8 U.S.C. § 1503(a). “A suit under section 1503(a) is not one for judicial review of the agency’s action” but for “a de novo judicial determination of the status of the plaintiff as a United States national.” Richards v. Sec’y of State, 752 F.2d 1413, 1417 (9th Cir. 1985); Acosta v. United States, 2014 WL 2216105, at *3 (W.D. Wash. May 29, 2014).
E.J. claims that he acquired U.S. citizenship at birth under Section 301(g) of the INA because he was born to his married parents, Andrew and Elad, on September 16, 2016, and Andrew is a U.S. citizen. Section 301(g) provides that the following individuals are nationals and citizens of the United States at birth:
a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years . . . .
In this case, the material facts are not in dispute. Specifically, there is no dispute that: (1) Andrew is a U.S. citizen who satisfied Section 301’s residency requirements at the time of E.J.’s birth; (2) E.J.’s legal parents, Andrew and Elad, were married at the time of E.J.’s birth; (3) E.J. was born outside of the United States; (4) Andrew and Elad are E.J.’s legal parents and have acted as his only parents since his birth; (5) E.J. now resides in California; and (6) E.J. does not share a biological relationship with Andrew but does with Elad. In addition, it is undisputed that the denial of E.J.’s CRBA and U.S. passport applications constitutes the denial of “a right or privilege as a national of the United States.” 8 U.S.C. § 1503. Thus, the only issue is whether Section 301 requires E.J., who was born during the marriage of his parents, to demonstrate a biological relationship with both of his married parents.
The Court concludes that, under controlling Ninth Circuit authority, Section 301 does not require a person born during their parents’ marriage to demonstrate a biological relationship with both of their married parents. For example, in Scales v. INS, the petitioner was born during the marriage of his Philippine citizen mother and U.S. citizen father, but was not the biological child of his U.S. citizen father. 232 F.3d at 1162. Following a conviction in Washington for possession with intent to deliver cocaine, the INS entered an order that the petitioner be deported as an alien convicted of an aggravated felony because the petitioner was a citizen of the Philippines. Id. at 1162. The petitioner appealed the deportation order to the Board of Immigration Appeals (“BIA”), arguing that he was a U.S. citizen because his mother had been married to his U.S. citizen father at the time he was born and, thus, he acquired U.S. citizenship at birth through his father, even though he was not his father’s biological son. Id. The BIA dismissed the petitioner’s appeal, holding that there must be a blood relationship between the child and the parent through whom citizenship is claimed to acquire U.S. citizenship at birth. Id. The petitioner then sought review of the BIA’s decision in the Ninth Circuit. Id. The Ninth Circuit held that “[a] straightforward reading” of the “born of parents” language in Section 301 “indicates . . . that there is no requirement of a blood relationship.” Id. at 1164. The Ninth Circuit also held that “[i]f Congress had wanted to ensure” that a person born to married parents only one of whom was a U.S. citizen “actually shares a blood relationship with an American citizen,” “‘it knew how to do so,’” as it had done in Section 309. Id. (quoting Custis v. United States, 511 U.S. 485, 492 (1994)). The Ninth Circuit expressly refused to defer to the FAM, concluding that it was so divergent from the statutory

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language as to not even be appropriately considered “an interpretation of § 1401.” Id. at 1165-66; see also Jaen, 899 F.3d at 187 n.4.
The Ninth Circuit followed Scales in Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005). In Solis-Espinoza, the petitioner was born in Mexico and raised in the United States by his biological father, a Mexican citizen, and his father’s wife, a U.S. citizen who was not the petitioner’s biological mother. Id. The petitioner’s father and the father’s wife were married at the time of the petitioner’s birth. Id. at 1091-92. The Board of Immigration Appeals held that the petitioner “‘was born out of wedlock,’ because his biological father was not married to his biological mother at the time of his birth.” Id. at 1092. On appeal, the Ninth Circuit reversed, holding that the petitioner “was a legitimate child, not born out of wedlock, and . . . thus a United States citizen pursuant to 8 U.S.C. § 1401(g).” Id. at 1094. Thus, the Ninth Circuit held once again that Section 301 does not condition U.S. citizenship on the existence of a blood relationship with a U.S. citizen parent. Id. at 1093 (citing Scales, 232 F.3d at 1164).
Other than the gender of E.J.’s parents, the factual circumstances in Scales and Solis-Espinoza are indistinguishable from the facts in this case. Both Scales and Solis-Espinoza make clear that the word “parents” as used in Section 301(g) is not limited to biological parents and that the presumption of legitimacy that applies when a child is born to married parents – as codified in the INA – cannot be rebutted by evidence that the child does not have a biological tie to a U.S. citizen parent. In fact, in Solis-Espinoza, it was undisputed that the petitioner did not share a biological relationship with his U.S. citizen parent – his father’s wife – but the Ninth Circuit nonetheless rejected the applicability of a biological relationship test. See Solis-Espinoza, 401 F.3d at 1091-92; see also Jaen, 899 F.3d at 185 (holding that under the INA, “a child born into a lawful marriage is the lawful child of those parents, regardless of . . . any biological link”). Therefore, it is clear under Scales and Solis-Espinoza that, in the Ninth Circuit, a biological relationship is not required under Section 301(g).
In addition, the dramatic difference in the language of Section 301 and Section 309 makes it clear that a biological relationship is not required between a child and his U.S. citizen parent if that child his born during the marriage of his parents to each other. Nothing in Section 301 references a biological relationship requirement or suggests that in using the words “parent” or “born . . . of parents,” Congress intended to refer only to biological or genetic parents. However, by including a “blood relationship” requirement in Section 309, Congress made it clear that it intended children born in and out of wedlock to be treated differently for purposes of acquiring U.S. citizenship. See Scales, 232 F.3d at 1165; Jaen, 899 F.3d at 189 (“Congress clearly specified enhanced requirements for proof of parentage in the case of children born out of wedlock” and “the ‘textual distinction’ between the sections regarding children of married parents and children of unmarried parents is strongly suggestive of a clear Congressional intent to treat the two categories differently on this point”); see also Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion”) (internal quotation marks omitted).
Moreover, concluding that Section 301 does not impose a biological relationship requirement is consistent with the legislative history of the INA, which “clearly indicates that the Congress intended to provide for a liberal treatment of children and was concerned with the

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problem of keeping families of United States citizens and immigrants united.” H.R. Rep. No. 85-1199, at 7 (1957); see also Nation v. Esperdy, 239 F. Supp. 531, 538 (S.D.N.Y. 1965) (“‘[T]hese provisions are designed to clarify or adjust existing provisions of law in the interest of reuniting broken families . . . .’”) (quoting 103 Cong. Rec. 15,498 (1957) (statement of Sen. John F. Kennedy)). As the Ninth Circuit recognized in Solis-Espinoza, “[t]he [INA] was intended to keep families together [and] should be construed in favor of family units and the acceptance of responsibility by family members.” Solis-Espinoza, 401 F.3d at 1094; Sook Young Hong v. Napolitano, 772 F. Supp. 2d 1270, 1278-79 (D. Haw. 2011) (collecting cases). In Scales, the Ninth Circuit also held that its interpretation of Section 301 was consistent with Congress’s purpose in enacting the INA because the concerns necessitating a blood relationship requirement in Section 309 – that “‘the unmarried male . . . need not participate in the decision to give birth rather than to choose an abortion; that he need not be present at the birth; and for at least 17 years thereafter he need not provide any parental support . . . in order to preserve his right to confer citizenship on the child pursuant to [Section 309]’” – are “not present if a child is born in wedlock.” Scales, 232 F.3d at 1164 (quoting Miller v. Albright, 523 U.S. 420, 434 (1998)).
Accordingly, Plaintiffs are entitled to summary judgment on their third claim for a declaration pursuant to 8 U.S.C. § 1503 that E.J. acquired U.S. citizenship at birth.
D. Plaintiffs’ Declaratory Judgment Claim is Moot.
In their first claim, Plaintiffs seek a declaration that the State Department’s interpretation of Section 301 violates the due process guarantee of the Fifth Amendment by infringing on the fundamental right of same sex couples to marry. However, the parties agree that if Plaintiffs prevail on their Section 1503 claim that it would be unnecessary for the Court to decide Plaintiffs’ declaratory judgment claim. Defendants’ Motion for Partial Summary Judgment (Docket No. 92-1), 19:24-26 (“To the extent the court believes that Plaintiffs are entitled to relief on their due process claim, the court should defer ruling on Count I until it resolves Plaintiffs’ statutory claim, which may provide sufficient relief without unnecessarily addressing a constitutional question”); Plaintiffs’ Motion for Partial Summary Judgment (Docket No. 83-1), 22:4-6 and 26-28 (arguing that “E.J. is entitled to judgment as a matter of law on his claim under Section 1503 and a declaration that he is a U.S. citizen at birth” and noting that “[t]his result is necessary to avoid the serious constitutional questions raised by Plaintiffs under the Fifth Amendment”); and Defendants’ Opposition to Plaintiffs’ Motion for Partial Summary Judgment (Docket No. 101), 6:25-28 (“The parties agree that to the extent this Court can resolve Plaintiffs’ section 1503 claim, this Court need not reach Plaintiffs’ constitutional claim”). Therefore, because the Court has decided Plaintiffs’ Section 1503 claim in favor of Plaintiffs, the Court need not and will not reach the constitutional issue raised in Plaintiffs’ declaratory judgment claim. United States v. Kenney, 789 F.2d 783, n. 2 (9th Cir. 1986) (“Because we decide on statutory grounds, we need not reach the constitutional issue”); Campos v. Nail, 43 F.3d 1285, 1288 (9th Cir. 1994) (“There is no reason, however, to explore the boundaries of the constitutional guarantee of procedural due process in the present context, and we do not do so”); Baires v. I.N.S., 856 F.2d 89, 91 (9th Cir. 1988) (“[W]e need not reach the constitutional issue if we find that a statutory right was violated and that the violation caused prejudice to the alien”); see also Massachusetts v. Westcott, 431 U.S. 322, 323 (1977) (holding that granting relief on a statutory basis foreclosed the Court from reaching a constitutional issue); Hagans v. Lavine, 415 U.S. 528, 547 (1974) (“a federal court should not decide federal constitutional questions where a dispositive nonconstitutional ground is available”).

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Accordingly, Plaintiffs’ first claim for declaratory judgment is DISMISSED as moot.
IV. Conclusion
For all the foregoing reasons, Plaintiffs’ and Defendants’ Motions for Partial Summary Judgment are GRANTED in part and DENIED in part. Defendants are granted summary judgment with respect to Plaintiffs’ second claim and Plaintiffs are granted summary judgment with respect to Plaintiffs’ third claim. Plaintiffs’ first claim is DISMISSED as moot.
The parties are ordered to meet and confer and agree on a joint proposed Judgment which is consistent with this Order. The parties shall lodge the joint proposed Judgment with the Court on or before February 28, 2019. In the unlikely event that counsel are unable to agree upon a joint proposed Judgment, the parties shall each submit separate versions of a proposed Judgment along with a Joint Statement setting forth their respective positions no later than February 28, 2019.
IT IS SO ORDERED.

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 Case 2:18-cv-00523-JFW-JC Document 125 Filed 03/06/19 Page 1 of 3 Page ID #:4372

1

NOTE CHANGES MADE BY COURT

2

3

JS-6

4

5

UNITED STATES DISTRICT COURT

6

CENTRAL DISTRICT OF CALIFORNIA

7

WESTERN DIVISION (LOS ANGELES)

8

ANDREW MASON DVASH-

)

9 BANKS AND E.J. D.-B.,

)

)

10

Plaintiffs, )

)

11

v.

)

)

12 THE UNITED STATES

)

DEPARTMENT OF STATE,

)

13 and THE HONORABLE

)

MICHAEL R. POMPEO,

)

14 Secretary of State,

)

)

15

Defendants. )

)

16

Case No. 2:18-cv-00523-JFW-(JCx) JUDGMENT

17

18

Pursuant to the Court’s February 21, 2019 Order Granting in Part and

19 Denying in Part Plaintiffs’ Motion for Partial Summary Judgment and Order

20 Granting in Part and Denying in Part Defendants’ Motion for Partial Summary

21 Judgment ((“Order”) ECF No. 123),

22

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED

23 THAT JUDGMENT is entered in this matter as follows:

24

(1) Judgment on the 8 U.S.C. § 1503(a) claim is hereby entered for

25 Plaintiffs for the reasons stated in the Court’s Order.

26

(2) The Court declares that Ethan Jacob Dvash-Banks is a national

27 and citizen of the United States who acquired U.S. citizenship at birth by operation

28 of Section 301(g) of the Immigration and Nationality Act, 8 U.S.C. § 1401(g).

[PROPOSED] JUDGMENT

Case 2:18-cv-00523-JFW-JC Document 125 Filed 03/06/19 Page 2 of 3 Page ID #:4373

1

(3) The Department of State is ordered to issue to E.J. a United States

2 passport as soon as is practicable but not later than 45 days from the date of entry

3 of this Judgment.

4

(4) If E.J. and Andrew and Elad Dvash-Banks elect to apply in person

5 for a Consular Report of Birth Abroad (“CRBA”) for E.J. at the Toronto Consulate

6 General or any other Consular Office of the State Department outside of the United

7 States, the Department of State is ordered to issue to E.J. a CRBA as soon as

8 practicable but not later than 45 days from the date of the consular interview in

9 connection with that application.

10

(5) The Dvash-Banks family will not be charged any additional fees

11 by the Department of State for obtaining the aforementioned passport or CRBA,

12 having already paid these fees to the Department of State for E.J.’s initial

13 applications, which were improperly denied.

14

(6) Judgment is hereby entered in favor of Defendants with respect to

15 Plaintiffs’ Administrative Procedure Act claim.

16

(7) Plaintiffs’ claim under the Due Process Clause of the Fifth

17 Amended is moot and is hereby dismissed with prejudice.

18

(8) If any elements of any of the claims asserted in this action by any

19 party were not the subject of either summary judgment motion, the Court’s Order,

20 or this Judgment, they are similarly moot and are dismissed.

21

(9) The Court retains jurisdiction to adjudicate any applications for

22 attorneys’ fees and costs as allowed by law. Plaintiffs may move this Court

23 separately for attorneys’ fees and costs.

24

It is So Ordered.

25 26 Date: March 6, 2019 27

The Honorable John F. Walter United States District Judge

28

-1-

JUDGMENT

Case 2:18-cv-00523-JFW-JC Document 125 Filed 03/06/19 Page 3 of 3 Page ID #:4374

1

Respectfully submitted,

2

3

By:

/s/ Alexa Lawson-Remer Alexa Lawson-Remer (SBN

268855)

4

lawsonr@sullcrom.com SULLIVAN & CROMWELL LLP

5

1888 Century Park East, Suite 2100 Los Angeles, California 90067-1725

6

Telephone: (310) 712-6600 Facsimile: (310) 712-8800

7

Theodore Edelman (pro hac vice)

8

edelmant@sullcrom.com Jessica Klein (pro hac vice)

9

kleinj@sullcrom.com SULLIVAN & CROMWELL LLP

10

125 Broad Street New York, New York 10004-2498

11

Telephone: (212) 558-4000 Facsimile: (212) 558-3588

12

Aaron C. Morris (pro hac vice)

13

amorris@immigrationequality.org IMMIGRATION EQUALITY

14

40 Exchange Place, Suite 1300 New York, New York, 10005-2744

15

Telephone: (212) 714-2904

16

ATTORNEYS FOR PLAINTIFFS

17

18

19

20

21

22

23

24

25

26

27

28

-2-

JUDGMENT

 
 Case 2:18-cv-00523-JFW-JC Document 138 Filed 05/13/19 Page 1 of 4 Page ID #:4782

1 SULLIVAN & CROMWELL LLP

2

Alexa M. Lawson-Remer (268855) lawsonr@sullcrom.com

3

1888 Century Park East, Suite 2100 Los Angeles, CA 90067-1725

4

Telephone: (310) 712-6600 Facsimile: (310) 712-8800

5 Theodore Edelman (pro hac vice)

6

edelmant@sullcrom.com Jessica Klein (pro hac vice)

7

kleinj@sullcrom.com Lauren M. Goldsmith (293269)

8

goldsmithl@sullcrom.com 125 Broad Street

9

New York, NY 10004-2498 Telephone: (212) 558-4000

10 Facsimile: (212) 558-3588

11

Rebekah T. Raybuck (316966) raybuckr@sullcrom.com

12

1870 Embarcadero Road Palo Alto, CA 94303

13

Telephone: (650) 461-5674 Facsimile: (650) 461-5700

14 Attorneys for Plaintiffs

15 [Additional counsel on signature page]

16

17

UNITED STATES DISTRICT COURT

18

CENTRAL DISTRICT OF CALIFORNIA

19

WESTERN DIVISION (LOS ANGELES)

20

ANDREW MASON DVASHBANKS and E.J. D.-B.,

) )

21

) Plaintiffs, )

22

v.

) )

23 THE UNITED STATES

) )

24

DEPARTMENT OF STATE, and THE HONORABLE

) )

25

MICHAEL R. POMPEO, Secretary of State,

) )

26

) Defendants. )

27

) )

28

)

Case No. 2:18-cv-00523-JFW-JCx ORDER TO DEFER CONSIDERATION OF PLAINTIFFS’ APPLICATION FOR ATTORNEYS’ FEES AND COSTS ________________________________
Judge: Hon. John F. Walter

ORDER TO DEFER CONSIDERATION OF PLAINTIFFS’ APPLICATION FOR ATTORNEYS’ FEES & COSTS

Case 2:18-cv-00523-JFW-JC Document 138 Filed 05/13/19 Page 2 of 4 Page ID #:4783

1

WHEREAS, on March 20, 2019, Plaintiffs filed a motion pursuant to the

2 Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”), for an award of attorneys’

3 fees and costs (“Motion”) (ECF No. 126) in the above-captioned action (“Action”);

4

WHEREAS, by minute order dated March 21, 2019, the Court struck the

5 Motion and directed the Parties to meet-and-confer further in an attempt to resolve

6 the Motion by agreement prior to making any further filings in connection with the

7 Motion (ECF No. 127);

8

WHEREAS, on April 4, 2019, the Parties reached an agreement-in-principle,

9 subject to any required approval of the Court, on the amount to be paid by

10 Defendants for attorneys’ fees and costs pursuant to the EAJA if Defendants did not

11 file an appeal in the Action;

12

WHEREAS, the Court adjourned sine die the deadline for Plaintiffs to refile

13 a motion for attorneys’ fees and costs (ECF No. 132);

14

WHEREAS, on May 6, 2019, Defendants filed a notice of appeal (“Appeal”)

15 from the Court’s Judgment in the Action to the United States Court of Appeals for

16 the Ninth Circuit (ECF No. 133);

17

WHEREAS, the Parties submitted to the Court on May 9, 2019 a Joint Status

18 Report proposing, given the pendency of the Appeal, to defer further proceedings in

19 connection with the Motion until after entry of a final non-appealable judgment

20 (ECF No. 135).

21

The Court, having received and considered the Parties’ Joint Status

22 Report requesting that the Court defer further proceedings in connection with the

23 Motion until after entry in the Action of a final, non-appealable judgment; and good

24 cause existing for the Parties’ request, it is hereby ORDERED that:

25

1. Further proceedings in connection with the Motion shall be

26

deferred until after entry in the Action of a final, non-appealable

27

judgment or until such other date as shall be ordered by the

28

Court.

[PROPOSED] ORDER TO DEFER CONSIDERATION OF PLAINTIFFS’ APPLICATION FOR ATTORNEYS’ FEES & COSTS

Case 2:18-cv-00523-JFW-JC Document 138 Filed 05/13/19 Page 3 of 4 Page ID #:4784

1

2. The Parties shall file a joint status report with the Court within

2

five (5) business days after the United States Court of Appeals

3

for the Ninth Circuit issues a mandate on the Appeal, which

4

report shall include the parties’ respective positions regarding,

5

and any proposed schedule for, further proceedings concerning

6

the Motion.

7

8 Dated: May 13, 2019
9
10 11 Dated: May 10, 2019

___________________________________ HONORABLE JOHN F. WALTER UNITED STATES DISTRICT JUDGE Presented by:

12

/s/ Rebekah T. Raybuck

13

SULLIVAN & CROMWELL LLP

Alexa M. Lawson-Remer (268855)

14

lawsonr@sullcrom.com

1888 Century Park East, Suite 2100

15

Los Angeles, CA 90067-1725

Telephone: (310) 712-6600

16

Facsimile: (310) 712-8800

17

Theodore Edelman (pro hac vice)

edelmant@sullcrom.com

18

Jessica Klein (pro hac vice)

kleinj@sullcrom.com

19

Lauren M. Goldsmith (293269)

goldsmithl@sullcrom.com

20

125 Broad Street

New York, NY 10004-2498

21

Telephone: (212) 558-4000

Facsimile: (212) 558-3588

22

Rebekah T. Raybuck (316966)

23

raybuckr@sullcrom.com

1870 Embarcadero Road

24

Palo Alto, CA 94303

Telephone: (650) 461-5674

25

Facsimile: (650) 461-5700

26

IMMIGRATION EQUALITY

Aaron C. Morris (pro hac vice)

27

amorris@immigrationequality.org

40 Exchange Place, Suite 1300

28

-2-

ORDER TO DEFER CONSIDERATION OF PLAINTIFFS’ APPLICATION FOR ATTORNEYS’ FEES & COSTS

Case 2:18-cv-00523-JFW-JC Document 138 Filed 05/13/19 Page 4 of 4 Page ID #:4785

1

New York, NY 10005-2744

2

Telephone: (212) 714-2904

3

Attorneys for Plaintiffs

4

/s/ Vinita B. Andrapalliyal

5

JOSEPH H. HUNT

6

Assistant Attorney General

7

ANTHONY J. COPPOLINO

Deputy Director

8

VINITA B. ANDRAPALLIYAL

9

Trial Attorney

United States Department of Justice

10

Civil Division

Federal Programs Branch

11

P.O. Box 883, Ben Franklin Station Washington, DC 20044

12

Tel: (202) 305-0845

Fax: (202) 616-8470

13

Email: vinita.b.andrapalliyal@usdoj.gov

14

LISA ZEIDNER MARCUS Senior Counsel

15

Attorneys for Defendants

16

17

18

19

ATTESTATION

20 Pursuant to Local Rule 5-4.3.4(a)(2)(i), the filer attests that all other signatories 21 listed, and on whose behalf the filing is submitted, concur in the filing’s content 22 and have authorized the filing. 23 24 Dated: May 10, 2019

25

By: /s/ Rebekah T. Raybuck

26

Rebekah T. Raybuck

27

28

-3-

ORDER TO DEFER CONSIDERATION OF PLAINTIFFS’ APPLICATION FOR ATTORNEYS’ FEES & COSTS

 
 E. J. D.-B. v. United States Department of State, 825 Fed.Appx. 479 (2020)

825 Fed.Appx. 479 (Mem) This case was not selected for publication in West’s
Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S.Ct. of App. 9th Cir.
Rule 36-3. United States Court of Appeals, Ninth Circuit.
E. J. D.-B., a Minor, Elad Dvash-Banks as the guardian ad litem; Andrew Mason Dvash-Banks,
Plaintiffs-Appellees, v.
UNITED STATES DEPARTMENT OF STATE; Michael Pompeo, US Secretary of State Successor
Rex W. Tillerson, Defendants-Appellants.
No. 19-55517 |
Submitted October 7, 2020* Pasadena, California |
FILED October 9, 2020
Attorneys and Law Firms
Alexa M. Lawson-Remer, Sullivan & Cromwell LLP, Los Angeles, CA, Theodore Edelman, Lauren Maisel Goldsmith, Sullivan & Cromwell LLP, New York, NY, Aaron C. Morris, Immigration Equality, Brooklyn, NY, for Plaintiffs-Appellees
Vinita Andrapalliyal, DOJ - U.S. Department of Justice, Civil Division, Washington, DC, H. Thomas Byron, III, Attorney, Daniel L. Winik, Attorney, DOJ - U.S. Department of Justice, Washington, DC, for Defendants-Appellants
Alan E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for Amici Curiae GLBTQ Legal Advocates & Defenders, National Center for Lesbian Rights
Mitchell Reich, Hogan Lovells US LLP, Washington, DC, for Amicus Curiae Family Law Professors
Appeal from the United States District Court for the Central District of California, John F. Walter, District Judge, Presiding, D.C. No. 2:18-cv-00523-JFW-JC
Before: KLEINFELD, HURWITZ, and BRESS, Circuit
1

Judges.
*480 MEMORANDUM**
The sole issue in this case is whether the district court correctly concluded that E.J. Dvash-Banks (“E.J.”) is a citizen of the United States. Because the district court’s decision was correct under binding circuit precedent, we affirm.
E.J. was conceived through Assisted Reproductive Technology and born in Canada. In January 2017, his legal parents, United States citizen Andrew Dvash-Banks (“Andrew”) and Israeli citizen Elad Dvash-Banks (“Elad”), applied for a passport for E.J. under 8 U.S.C. § 1401(g), which confers citizenship on “a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States.” The United States consulate in Ontario, Canada, denied the application because E.J. was conceived using Elad’s sperm. The district court, however, held that E.J. was a citizen under this Court’s decisions in Scales v. INS, 232 F.3d 1159 (9th Cir. 2000), and Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005), which hold that § 1401(g) does not require a biological relationship between a child and the citizen parent through whom citizenship is claimed.
The government concedes that Scales and Solis-Espinoza control this case and has appealed to preserve the argument that those cases were incorrectly decided. As a three-judge panel, we are bound by Scales and Solis-Espinoza. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc). Because the district court did not err in applying Ninth Circuit law, we affirm.1
AFFIRMED.
All Citations
825 Fed.Appx. 479 (Mem)

E. J. D.-B. v. United States Department of State, 825 Fed.Appx. 479 (2020)
Footnotes

*

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P.

34(a)(2).

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1

Appellees’ motion for judicial notice, Dkt. 22, is GRANTED.

2