U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:18-cv-00124-EGS

BLIXT et al v. UNITED STATES DEPARTMENT OF Date Filed: 01/22/2018

STATE et al

Date Terminated: 02/14/2020

Assigned to: Judge Emmet G. Sullivan

Jury Demand: None

Case: 1:20-cv-00409-EGS

Nature of Suit: 440 Civil Rights:

Cause: 05:702 Administrative Procedure Act

Other

Jurisdiction: U.S. Government

Defendant

Plaintiff
STEFANIA ZACCARI Guardian Ad Litem for Plaintiff Lucas Alexander Zaccari-Blixt

represented by Elizabeth A. Cassady SULLIVAN & CROMWELL LLP 1700 New York Avenue NW Suite 700 Washington, DC 20006 (202) 956-6980 Email: cassadye@sullcrom.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica M. Klein SULLIVAN & CROMWELL LLP 125 Broad Street New York, NY 10004-2498 (212) 558-3153 Email: kleinj@sullcrom.com PRO HAC VICE ATTORNEY TO BE NOTICED

Theodore Edelman SULLIVAN & CROMWELL 125 Broad Street New York, NY 10004-2498 (212)558-3436 Fax: (212)291-9045 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff ALLISON DAWN BLIXT

represented by Elizabeth A. Cassady (See above for address)

Plaintiff
LUCAS ALEXANDER ZACCARI-BLIXT

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra H. Moss SULLIVAN & CROMWELL LLP 125 Broad Street New York, NY 10004 (212)558-4334 Fax: (212)291-9502 Email: mossa@sullcrom.com TERMINATED: 06/01/2018 PRO HAC VICE
Andrew K. Jennings SULLIVAN & CROMWELL LLP 125 Broad Street New York, NY 10004 (212)558-3197 Fax: (212)558-3588 Email: jenningsa@sullcrom.com TERMINATED: 08/03/2018 PRO HAC VICE
Jessica M. Klein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Scott E. Blair SULLIVAN & CROMWELL LLP 125 Broad Street New York, NY 10004 (212)558-3413 Fax: (212)291-9724 Email: blairs@sullcrom.com TERMINATED: 02/27/2018 PRO HAC VICE
Theodore Edelman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Elizabeth A. Cassady (See above for address)

V.
Defendant
UNITED STATES DEPARTMENT OF STATE

LEAD ATTORNEY 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
Scott E. Blair (See above for address) TERMINATED: 02/27/2018 PRO HAC VICE
Theodore Edelman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Lisa Zeidner Marcus U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 700 Grant St. Suite 4000 Pittsburgh, PA 15219 (202) 514-3336 Fax: (202) 616-8470 Email: lisa.marcus@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vinita B. Andrapalliyal

Defendant
REX W. TILLERSON The Honorable, Secretary of State

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street NW Washington, DC 20005 (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 B. 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

# Docket Text

COMPLAINT against All Defendants ( Filing fee $ 400 receipt

1

number 0090-5295125) filed by Lucas Alexander Zaccari-Blixt,

Allison Dawn Blixt. (Attachments: # 1 Exhibit A, # 2 Exhibit B,

# 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Summons Summons

to the Department of State, # 7 Summons Summons to Rex W.

Tillerson, in his official capacity, # 8 Civil Cover Sheet Civil Cover

Sheet)(Cassady, Elizabeth) Modified on 1/22/2018 to correct docket

text (jf). (Attachment 8 replaced on 1/24/2018) (jd) (Entered:

01/22/2018)

2 NOTICE of Appearance by Elizabeth A. Cassady on behalf of All Plaintiffs (Cassady, Elizabeth) (Entered: 01/22/2018)

3 MOTION Waive Identification of Address Requirements of Local Rule 5.1(c)(1) by Allison Dawn Blixt, Lucas Alexander ZaccariBlixt (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Cassady, Elizabeth) (Entered: 01/22/2018)

Case Assigned to Chief Judge Beryl A. Howell. (jd) (Entered: 01/24/2018)

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4 MOTION for Leave to Appear Pro Hac Vice :Attorney NameTheodore, :Firm- Edelman, :Address- 125 Broad Street, New York, NY 10004-2498. Phone No. - (212) 558-3436. Fax No. - (212) 2919045 Fee Status: No Fee Paid. by Allison Dawn Blixt, Lucas Alexander Zaccari-Blixt (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Cassady, Elizabeth) (Entered: 01/23/2018)
5 MOTION for Leave to Appear Pro Hac Vice :Attorney NameJessica M. Klein, :Firm- Sullivan & Cromwell, :Address- 125 Broad Street, New York, NY 10004-2498. Phone No. - (212) 5583153. Fax No. - (212) 291-9357 Fee Status: No Fee Paid. by Allison Dawn Blixt, Lucas Alexander Zaccari-Blixt (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Cassady, Elizabeth) (Entered: 01/23/2018)
6 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Scott E. Blair, :Firm- Sullivan & Cromwell, :Address- 125 Broad Street, New York, NY 10004-2498. Phone No. - (212) 558-3413. Fax No. (212) 291-9724 Fee Status: No Fee Paid. by Allison Dawn Blixt, Lucas Alexander Zaccari-Blixt (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Cassady, Elizabeth) (Entered: 01/23/2018)
7 MOTION for Leave to Appear Pro Hac Vice :Attorney NameAlexandra H. Moss, :Firm- Sullivan & Cromwell, :Address- 125 Broad Street, New York, NY 10004-2498. Phone No. - (212) 5584334. Fax No. - (212) 291-9502 Fee Status: No Fee Paid. by Allison Dawn Blixt, Lucas Alexander Zaccari-Blixt (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Cassady, Elizabeth) (Entered: 01/23/2018)
8 MOTION for Leave to Appear Pro Hac Vice :Attorney NameAndrew K. Jennings, :Firm- Sullivan & Cromwell, :Address- 125 Broad Street, New York, NY 10004-2498. Phone No. - (212) 5583197. Fax No. - (212) 558-3588 Fee Status: No Fee Paid. by Allison Dawn Blixt, Lucas Alexander Zaccari-Blixt (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Cassady, Elizabeth) (Entered: 01/23/2018)
9 SUMMONS (2) Issued Electronically as to REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE. (Attachments: # 1 Notice and Consent)(jd) (Entered: 01/24/2018)
SUMMONS Not Issued as to United States Attorney General and United States Attorney for the District of Columbia. (jd) (Entered: 01/24/2018)

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01/31/2018
02/05/2018 02/05/2018

Filing fee received in the amount of $ 100.00, receipt number: 4616089173 re 4 MOTION for Leave to Appear Pro Hac Vice. (zrdj) (Entered: 01/25/2018)
Filing fee received in the amount of $ 100.00, receipt number: 4616089174 re 5 MOTION for Leave to Appear Pro Hac Vice. (zrdj) (Entered: 01/25/2018)
Filing fee received in the amount of $ 100.00, receipt number: 4616089175 re 6 MOTION for Leave to Appear Pro Hac Vice. (zrdj) (Entered: 01/25/2018)
Filing fee received in the amount of $ 100.00, receipt number: 4616089177 re 7 MOTION for Leave to Appear Pro Hac Vice. (zrdj) (Entered: 01/25/2018)
Filing fee received in the amount of $ 100.00, receipt number: 4616089176 re 8 MOTION for Leave to Appear Pro Hac Vice. (zrdj) (Entered: 01/25/2018)
10 Case randomly reassigned to Judge Emmet G. Sullivan. Chief Judge Beryl A. Howell is no longer assigned to the case. (ztnr) (Entered: 01/26/2018)
11 STANDING ORDER: The parties are directed to read the attached Standing Order Governing Civil Cases Before Judge Emmet G. Sullivan in its entirety upon receipt. The parties are hereby ORDERED to comply with the directives in the attached Standing Order. Signed by Judge Emmet G. Sullivan on 1/29/18. (Attachment: # 1 Exhibit 1) (mac) (Entered: 01/29/2018)
MINUTE ORDER granting 4 , 5 , 6 , 7 , 8 motions for pro hac vice. Attorneys Theodore Edelman, Jessica Klein, Scott Blair, Alexandra Moss, and Andrew Jennings are hereby admitted to practice pro hac vice in this case pursuant to Local Rule 83.2. The Court also hereby grants 3 plaintiffs' motion to waive the address requirements of Local Rule 5.1(c)(1), finding that such action is needed to protect the interests of the young child involved. Signed by Judge Emmet G. Sullivan on 1/31/2018. (lcegs3) (Entered: 01/31/2018)
12 CERTIFICATE OF SERVICE by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT for Defendant U.S. Department of State (service to the Attorney General). (Cassady, Elizabeth) (Entered: 02/05/2018)
13 CERTIFICATE OF SERVICE by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT for Defendant U.S.

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Department of State (service to U.S. Attorney). (Cassady, Elizabeth) (Entered: 02/05/2018)
14 CERTIFICATE OF SERVICE by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT for Defendant U.S. Department of State. (Cassady, Elizabeth) (Entered: 02/05/2018)
15 CERTIFICATE OF SERVICE by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT for Defendant Hon. Rex W. Tillerson (service to the Attorney General). (Cassady, Elizabeth) (Entered: 02/05/2018)
16 CERTIFICATE OF SERVICE by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT for Defendant Hon. Rex W. Tillerson (service to U.S. Attorney). (Cassady, Elizabeth) (Entered: 02/05/2018)
17 CERTIFICATE OF SERVICE by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT for Defendant Hon. Rex W. Tillerson. (Cassady, Elizabeth) (Entered: 02/05/2018)
18 CERTIFICATE OF SERVICE by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT re 11 Order, Service of Standing Order to Defendants (service to counsel). (Cassady, Elizabeth) (Entered: 02/05/2018)
19 NOTICE OF WITHDRAWAL OF APPEARANCE as to ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARIBLIXT. Attorney Scott E. Blair terminated. (Cassady, Elizabeth) (Entered: 02/27/2018)
20 CERTIFICATE OF SERVICE by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT re 19 Notice of Withdrawal of Appearance of Scott E. Blair. (Cassady, Elizabeth) (Entered: 02/28/2018)
21 NOTICE of Appearance by Vinita B. Andrapalliyal on behalf of REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE (Andrapalliyal, Vinita) (Entered: 03/21/2018)
22 Joint MOTION to Extend Case Deadlines by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Andrapalliyal, Vinita) (Entered: 03/21/2018)
MINUTE ORDER granting 22 joint motion to extend case deadlines. The parties shall therefore file a joint status report by no

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05/27/2018 06/01/2018 07/11/2018 07/11/2018

later than May 29, 2018 to update the Court as to the status of the parties' efforts to resolve this lawsuit. The defendant is also ordered to respond to the complaint by May 29, 2018. Signed by Judge Emmet G. Sullivan on 3/30/2018. (lcegs3) (Entered: 03/30/2018)
Set/Reset Deadlines: Joint Status Report due by 5/29/2018. Defendant Response To The Conplaint due by 5/29/2018. (mac) (Entered: 03/30/2018)
23 Joint STATUS REPORT by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE. (Andrapalliyal, Vinita) (Entered: 05/23/2018)
24 Joint MOTION for Extension of Time Extend Case Deadlines by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Andrapalliyal, Vinita) Modified event title on 5/25/2018 (znmw). (Entered: 05/23/2018)
MINUTE ORDER granting 24 joint motion to extend case deadlines, in view of the parties' representations that they are engaging in settlement discussions. The deadline for the defendants to respond to the complaint shall therefore be stayed. The parties are ordered to file a joint status report by no later than July 16, 2018 updating the Court as to the status of the parties' discussions and efforts to resolve this lawsuit. Signed by Judge Emmet G. Sullivan on 5/25/2018. (lcegs3) (Entered: 05/25/2018)
Set/Reset Deadlines: Joint Status Report due by 7/16/2018 updating the Court as to the status of the parties' discussions and efforts to resolve this lawsuit. (jth) (Entered: 05/27/2018)
25 NOTICE OF WITHDRAWAL OF APPEARANCE as to ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARIBLIXT. Attorney Alexandra H. Moss terminated. (Cassady, Elizabeth) (Entered: 06/01/2018)
26 Joint STATUS REPORT by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE. (Andrapalliyal, Vinita) (Entered: 07/11/2018)
27 Joint MOTION Extend Case Management Deadlines by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Andrapalliyal, Vinita) (Entered: 07/11/2018)

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08/03/2018 08/03/2018 09/03/2018 10/17/2018

MINUTE ORDER granting 27 joint motion to extend case deadlines, in view of the parties' representations that they are engaging in settlement discussions. The deadline for the defendants to respond to the complaint shall therefore be stayed. The parties are ordered to file a joint status report by no later than August 6, 2018 updating the Court as to the status of the parties' discussions and efforts to resolve this lawsuit. Signed by Judge Emmet G. Sullivan on 7/16/2018. (lcegs3) (Entered: 07/16/2018)
28 Joint STATUS REPORT by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE. (Andrapalliyal, Vinita) (Entered: 08/01/2018)
29 Joint MOTION for Extension of Time to Respond to Complaint, Joint MOTION for Briefing Schedule by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Andrapalliyal, Vinita) (Entered: 08/01/2018)
MINUTE ORDER granting 29 defendants' consent motion for extension of time to answer the complaint. The parties shall therefore adhere to the following briefing schedule: (1) defendants shall file a motion to dismiss by no later than September 3, 2018; (2) plaintiffs' response shall be filed by no later than October 17, 2018; (3) defendants' reply shall be filed by no later than November 7, 2018. Signed by Judge Emmet G. Sullivan on 8/3/2018. (lcegs3) (Entered: 08/03/2018)
30 NOTICE OF WITHDRAWAL OF APPEARANCE as to ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARIBLIXT. Attorney Andrew K. Jennings terminated. (Cassady, Elizabeth) (Entered: 08/03/2018)
Set/Reset Deadlines: Motion To Dismiss due by 9/3/2018. Plaintiffs' Response due by 10/17/2018 Defendants' Reply due by 11/7/2018. (mac) (Entered: 08/03/2018)
31 MOTION to Dismiss , MOTION to Dismiss for Lack of Jurisdiction by REX W. TILLERSON, UNITED STATES
DEPARTMENT OF STATE (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Andrapalliyal, Vinita) (Entered: 09/03/2018)
32 Memorandum in opposition to re 31 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction filed by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-

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02/25/2019 03/12/2019

BLIXT. (Attachments: # 1 Text of Proposed Order)(Cassady, Elizabeth) (Entered: 10/17/2018)
33 REPLY to opposition to motion re 31 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction filed by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE. (Andrapalliyal, Vinita) (Entered: 11/07/2018)
34 Ex Parte MOTION to Appoint Guardian ad Litem by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT (Attachments: # 1 Memorandum in Support of Ex Parte Application for Appointment of Guardian Ad Litem, # 2 Declaration of Elizabeth A. Cassady in Support of Ex Parte Application, # 3 Declaration of Stefania Zaccari in Support of Ex Parte Application, # 4 Text of Proposed Order)(Cassady, Elizabeth) (Entered: 02/12/2019)
MINUTE ORDER treating 34 ex parte motion for appointment of guardian ad litem as an unopposed motion and granting the relief requested. Pursuant to Federal Rule of Civil Procedure 17(c)(2), the Court hereby appoints Stefania Zaccari as the guardian ad litem for Plaintiff Lucas Alexander Zaccari-Blixt. Signed by Judge Emmet G. Sullivan on 02/13/19. (mac) (Entered: 02/13/2019)
MINUTE ORDER. In light of the recent decision in Andrew Mason Dvash-Banks et al. v. Michael R. Pompeo et al., No. 18-cv-523JFW (JCx) (C.D. Cal. Feb. 21, 2019), ECF No. 123 at 8 (concluding that "Section 301 [of the Immigration and Nationality Act, 8 U.S.C. § 1401,] does not require a person born during their parents' marriage to demonstrate a biological relationship with both of their married parents."), the Court directs the parties to file supplemental briefs concerning 31 Defendant's Motion to Dismiss by no later than March 15, 2019. Each submission shall not exceed five pages. The parties need not address the issue of whether or not the recent decision is non-binding, persuasive authority. Signed by Judge Emmet G. Sullivan on 2/25/2019. (lcegs3) (Entered: 02/25/2019)
Set/Reset Deadlines: Supplemental Briefs due by 3/15/2019. (mac) (Entered: 02/25/2019)
35 MOTION for Extension of Time to File Supplemental Briefing by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Andrapalliyal, Vinita) (Entered: 03/12/2019)

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05/15/2019

MINUTE ORDER granting over objection 35 Defendants' Motion for Extension of Time to File Supplemental Briefing. The parties shall file their supplemental briefs by no later than March 19, 2019. Defendants are advised that any future request for an extension of time as to the supplemental briefing will be strongly disfavored. Signed by Judge Emmet G. Sullivan on 3/13/2019. (lcegs3) (Entered: 03/13/2019)
Set/Reset Deadlines: Supplemental Briefing due by 3/19/2019. (mac) (Entered: 03/14/2019)
36 SUPPLEMENTAL MEMORANDUM 32 Memorandum in opposition to re 31 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction filed by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT. (Cassady, Elizabeth) Modified on 3/20/2019 (jf). (Entered: 03/19/2019)
37 SUPPLEMENTAL MEMORANDUM re 31 Support of Motion to Dismiss filed by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE. (Andrapalliyal, Vinita) Modified on 3/20/2019 (jf). (Entered: 03/19/2019)
MINUTE ORDER. The Court will hold a status hearing in this case on April 10, 2019 at 1:00 PM in Courtroom 24A. Signed by Judge Emmet G. Sullivan on 4/1/2019. (lcegs3) (Entered: 04/01/2019)
MINUTE ORDER. Due to the Court's calendar, the status hearing currently scheduled for April 10, 2019 at 1:00 PM will now take place on May 15, 2019 at 1:00 PM in Courtroom 24A. The Court regrets any inconvenience to the parties. Signed by Judge Emmet G. Sullivan on 4/2/2019. (lcegs3) (Entered: 04/02/2019)
Set/Reset Hearings: Status Conference set for 5/15/2019 at 1:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 04/03/2019)
MINUTE ORDER. Due to the Court's calendar, the status hearing currently scheduled for May 15, 2019 at 1:00 PM will now take place on May 15, 2019 at 1:30 PM in Courtroom 24A. PLEASE NOTE THE TIME CHANGE. The Court regrets any inconvenience to the parties. Signed by Judge Emmet G. Sullivan on 5/15/2019. (lcegs3) (Entered: 05/15/2019)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 5/15/2019. The Court Will Deny 31 Motion to Dismiss, Motion to Dismiss for Lack of

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Jurisdiction. The Court Will Issue Order Forthcoming. (Court Reporter JANICE DICKMAN.) (mac) (Entered: 05/15/2019)
MINUTE ORDER denying 31 Defendants' Motion to Dismiss for the reasons stated on the record during the hearing held on May 15, 2019. The parties are directed to submit a joint status report by no later than May 31, 2019. The government is directed to file the administrative record by no later than June 30, 2019. Signed by Judge Emmet G. Sullivan on 5/15/2019. (lcegs3) (Entered: 05/15/2019)
MINUTE ORDER REFERRING CASE to Magistrate Judge Robin M. Meriweather for Mediation and Discovery. In light of the parties' representations at the hearing held on May 15, 2019, the Court refers this case to Magistrate Judge Meriweather for mediation and discovery. The parties are directed to adhere to Magistrate Judge Meriweather's procedures for all discovery-related motions. Signed by Judge Emmet G. Sullivan on 5/15/2019. (lcegs3) (Entered: 05/15/2019)
CASE DIRECTLY REFERRED to Magistrate Judge Robin M. Meriweather for mediation and discovery. (zad) (Entered: 05/16/2019)
Set/Reset Deadlines: Government To File Administrative Record due by 6/30/2019. Joint Status Report due by 5/31/2019. (mac) (Entered: 05/16/2019)
MINUTE ORDER. The parties are directed to file their initial disclosures required under Federal Rule of Civil Procedure 26(a)(1) by no later than May 29, 2019. Signed by Judge Emmet G. Sullivan on 5/16/2019. (lcegs3) (Entered: 05/16/2019)
Set/Reset Deadlines: Initial Disclosures due by 5/29/2019. (mac) (Entered: 05/16/2019)
38 TRANSCRIPT OF PROCEEDINGS before Judge Emmet G. Sullivan held on May 15, 2019; Page Numbers: 1-55. Date of Issuance:May 21, 2019. Court Reporter: Janice Dickman, Telephone number: 202-354-3267, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be

purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 6/11/2019. Redacted Transcript Deadline set for 6/21/2019. Release of Transcript Restriction set for 8/19/2019.(Dickman, Janice) (Entered: 05/21/2019)

05/29/2019

39 Unopposed MOTION for Extension of Time to File Answer by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Andrapalliyal, Vinita) (Entered: 05/29/2019)

05/30/2019

MINUTE ORDER granting 39 Defendants' Unopposed Motion for Extension of Time to File Answer. Defendants shall file their answer to the complaint by no later than June 14, 2019. Signed by Judge Emmet G. Sullivan on 5/30/2019. (lcegs3) (Entered: 05/30/2019)

05/31/2019

40 Joint STATUS REPORT by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE. (Andrapalliyal, Vinita) (Entered: 05/31/2019)

06/14/2019

41 ANSWER to Complaint by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE.(Andrapalliyal, Vinita) (Entered: 06/14/2019)

06/18/2019

42 NOTICE of Appearance by Lisa Zeidner Marcus on behalf of All Defendants (Marcus, Lisa) (Entered: 06/18/2019)

06/28/2019

43 NOTICE of Filing of Certified Index of the Administrative Record by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE (Attachments: # 1 Certification, # 2 Index)(Andrapalliyal, Vinita) (Entered: 06/28/2019)

08/26/2019 44

NOTICE : Letter to the Hon. Robin M. Meriweather from the Parties by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE (Andrapalliyal, Vinita) (Entered: 08/26/2019)

10/02/2019

45 NOTICE of Filing of Letter to Judges Sullivan and Meriweather by ALLISON DAWN BLIXT (Cassady, Elizabeth) (Entered: 10/02/2019)

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10/30/2019 01/17/2020 01/17/2020

NOTICE OF ERROR re 45 Notice (Other); emailed to cassadye@sullcrom.com, cc'd 9 associated attorneys -- The PDF file you docketed contained errors: 1. Incorrect document/case, 2. DO NOT REFILE - Counsel should review LCvR 5.1 (a) CORRESPONDENCE WITH THE COURT. (jf) (Entered: 10/03/2019)
MINUTE ORDER. In view of 45 Notice of Filing of Letter to Judges Sullivan and Meriweather that states Plaintiffs intend to relocate to the United States, the parties are directed to file a joint status report with a recommendation for further proceedings by no later than 12:00 PM on October 25, 2019. The government is directed to address what impact, if any, will L.Z.-B.'s application for permanent residency have on this case. The parties shall adhere to the directives in the 11 Court's Standing Order for all future filings. See Standing Order, ECF No. 11 at 2 § 3(b) ("Parties are to communicate with the Court in writing by motion, opposition, and reply; not by letter or telephone call."). Signed by Judge Emmet G. Sullivan on 10/15/2019. (lcegs3) (Entered: 10/15/2019)
Set/Reset Deadlines: Joint Status Report due no later than 12:00PM on 10/25/2019. (mac) (Entered: 10/15/2019)
46 Joint STATUS REPORT dated October 25, 2019 by ALLISON DAWN BLIXT, STEFANIA ZACCARI, LUCAS ALEXANDER ZACCARI-BLIXT. (Attachments: # 1 Text of Proposed Order)(Cassady, Elizabeth) (Entered: 10/25/2019)
MINUTE ORDER. In view of the 46 Joint Status Report, and for good cause shown, it is hereby ORDERED that this case is STAYED until January 17, 2020. The parties are hereby ORDERED to file a joint status report with a recommendation for further proceedings by no later than January 17, 2020. Signed by Judge Emmet G. Sullivan on 10/30/2019. (lcegs3) (Entered: 10/30/2019)
Set/Reset Deadlines: Joint Status Report due by 1/17/2020. (mac) (Entered: 10/30/2019)
47 Joint STATUS REPORT dated January 17, 2020 by ALLISON DAWN BLIXT, STEFANIA ZACCARI, LUCAS ALEXANDER ZACCARI-BLIXT. (Attachments: # 1 Text of Proposed Order)(Cassady, Elizabeth) (Entered: 01/17/2020)
MINUTE ORDER. Upon consideration of the 47 Joint Status Report, and for good cause shown, it is hereby ORDERED that this case is STAYED until February 14, 2020. The parties are hereby

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02/14/2020
02/14/2020 02/26/2020 02/26/2020

ORDERED to file a joint status report on February 14, 2020, if no motion or stipulation to transfer has been filed by or before February 14, 2020. Signed by Judge Emmet G. Sullivan on 1/17/2020. (lcegs3) (Entered: 01/17/2020)
Set/Reset Deadlines: Joint Status Report Or Stipulation due by 2/14/2020. Case Stayed. (mac) (Entered: 01/21/2020)
48 Joint MOTION to Transfer Case Pursuant to 28 U.S.C. 1404 by ALLISON DAWN BLIXT, STEFANIA ZACCARI, LUCAS ALEXANDER ZACCARI-BLIXT (Attachments: # 1 Memorandum in Support of Joint Motion to Transfer Case, # 2 Declaration of Allison Dawn Blixt in Support of Joint Motion to Transfer Case, # 3 Text of Proposed Order)(Cassady, Elizabeth) (Entered: 02/13/2020)
MINUTE ORDER granting 48 Joint Motion to Transfer Case. Pursuant to 28 U.S.C. § 1404(a), it is hereby ORDERED that this case is TRANSFERRED to the United States District Court for the District of New Jersey. Signed by Judge Emmet G. Sullivan on 2/14/2020. (lcegs3) (Entered: 02/14/2020)
Set/Reset Deadlines: Transfer due by 2/24/2020. (mac) (Entered: 02/14/2020)
49 Case transferred to the United States District Court for the District of New Jersey, pursuant to the Court Order entered 02/14/2020. Sent to Court via extraction. (jf) (Entered: 02/26/2020)
Receipt on 02/26/2020 of Electronic Transfer. Other Court Number 2:20-cv-02102 sent by District of New Jersey. (zrdj) (Entered: 02/26/2020)

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 Case 1:18-cv-00124-EGS Document 1 Filed 01/22/18 Page 1 of 25

UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

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ALLISON DAWN BLIXT and LUCAS ALEXANDER ZACCARI-BLIXT,
Plaintiffs,

:
: : COMPLAINT : Docket No. 18-CV-_____
:

v.

:

:

THE UNITED STATES DEPARTMENT OF STATE, :

and THE HONORABLE REX W. TILLERSON, :

Secretary of State,

:

Defendants.

: :

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PRELIMINARY STATEMENT

1. This action challenges a United States Department of State (“State Department”) policy that hurts families and undermines the familial relationships of same-sex parents. The agency’s policy unconstitutionally disregards the dignity and sanctity of same-sex marriages by refusing to recognize the birthright citizenship of the children of married same-sex couples. Plaintiffs are members of a family who have suffered and continue to suffer harm because of the State Department’s policy. The family includes: Allison Dawn Blixt (“Allison”), a United States citizen who was born and raised in this country; Allison’s wife, Stefania Zaccari (“Stefania”), an Italian citizen; and their two young sons, Lucas Alexander Zaccari-Blixt (“Lucas”) and Massimiliano Axel Zaccari-Blixt (“Massi”).
2. Both Lucas and Massi were conceived and born in London, England during Allison’s marriage to Stefania. Allison and Stefania conceived their children using their own eggs and sperm from an unknown donor. Stefania conceived and carried Lucas to term. Allison conceived and carried Massi to term. Allison and Stefania are the only parents listed on Lucas

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and Massi’s birth certificates, and are the only people English law1 recognizes as Lucas and Massi’s parents. Accordingly, Allison and Stefania have been the boys’ legal parents from the day they came into this world together.
3. At birth, both Lucas and Massi qualified for United States citizenship pursuant to Section 301(g) of the Immigration and Nationality Act (“INA”) (codified at 8 U.S.C. § 1401(g)). That clause entitles a person born abroad to citizenship at birth if one of that person’s married parents is a United States citizen and the other is a foreign national, as long as the citizen parent satisfies certain statutorily prescribed periods of residency in the U.S. Allison is a U.S. citizen who lived in the United States for over twenty years, and so clearly satisfies the residency requirements of Section 301(g). Because Allison and Stefania were married to each other when Lucas and Massi were born, Lucas and Massi have been U.S. citizens since birth under Section 301(g).
4. The State Department, through the United States Embassy in London, however, failed to apply Section 301(g) to Lucas and Massi. Instead, it applied Section 309 of the INA (codified at 8 U.S.C. § 1409), a provision of the statute which applies only to children born “out of wedlock.” Because the State Department therefore wrongly considered them to have been born “out of wedlock,” it concluded that they could qualify for citizenship at birth only as the children of unwed parents, and therefore could acquire such citizenship only pursuant to Section 309 and only if Allison gave birth to them both.
5. Focusing improperly on the biological relationship between each child and the parent who conceived and carried him, the State Department then recognized Massi’s citizenship

1

To the extent necessary to introduce or address issues of non-U.S. law in 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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and denied Lucas’. The State Department’s application of Section 309 instead of Section 301 is an unlawful, unconstitutional refusal to recognize the validity of Allison’s and Stefania’s marriage and, therefore, that a child born to them during that marriage is the offspring of that marriage. The fact that the State Department’s policy has led children identified by their birth certificates as boys with the same parents to have different nationalities listed on their passports crystallizes both the indignity and absurdity of the policy’s effect.
6. The State Department’s failure to recognize and give effect to the marriage between Allison and Stefania also denies Lucas the rights and privileges that accompany U.S. citizenship, including the right to reside permanently in the U.S., the right to obtain a U.S. passport, and, when he is older, the right to run for political office. Because the State Department does not recognize Lucas’ U.S. citizenship, he cannot visit or live in the United States freely as other members of his family can.
7. Allison and Massi may reside in the U.S. permanently because they are U.S. citizens. Stefania may reside in the U.S. permanently by obtaining a family-based immigrant visa based on her marriage to Allison. The State Department’s policy, however, renders Lucas the only member of his family without the freedom to live in the U.S. permanently. The State Department’s decision to withhold from Lucas the same rights granted to his brother means that he will experience the indignity and stigma of unequal treatment imposed and endorsed by the U.S. government. No governmental purpose could justify imposing these indignities on a child of a valid marriage or restricting a family’s freedom to live as a family—together.
8. The State Department’s policy is not only wrong and harmful, it is also contrary to the INA as well as the guarantees of due process and equal protection enshrined in the Fifth Amendment. To the extent that the State Department’s policy was adopted before the Supreme
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Court’s recent precedents guaranteeing equality to same-sex married couples and their families, its continued enforcement violates that precedent. The Supreme Court has made clear that the Constitution requires that same-sex marriages receive the same legal effects and respect as opposite-sex marriages. The State Department’s policy, or at least its application to Lucas, violates that mandate by restricting eligibility for citizenship under Section 301 of the INA solely to children whose parents are in opposite-sex marriages. These violations create real and significant hardships for the Zaccari-Blixt family and others like them. Soon, Lucas will be old enough to realize that the U.S. government views him as an alien with no enforceable connection to his mother or brother, and discriminates against him based on the sex and sexual orientation of his parents.
9. The State Department’s policy is arbitrary and capricious and serves no rational, legitimate, or substantial government interest. The State Department’s policy drives families apart by treating the children of the same married parents differently depending upon which mother bore the child. The threat that this policy poses to family unity confirms that it is contrary to the legislative intent of the INA, which enshrines the preservation of the family unit as a paramount consideration. Neither the INA nor the U.S. Constitution permits the State Department’s unlawful policy to stand.
THE PARTIES 10. Plaintiff Allison is a 39-year-old citizen of the United States. She was born in Illinois, raised in North Carolina, and resided as an adult in New York, where she is registered to vote as a U.S. citizen living abroad. 11. Plaintiff Lucas is 2 years old. He was born in London, England, where he resides with his parents Allison and Stefania and his younger brother, Massi.
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12. Allison brings this action in her individual capacity and on behalf of her minor son Lucas.
13. Defendant the United States Department of State is a department of the government of the United States of America, whose headquarters office is located at the Department of State, 2201 C St. NW, Washington, D.C. 20520. The State Department oversees all U.S. embassies and sets the policy U.S. embassy employees follow in determining whether to recognize the citizenship of the children of U.S. citizens.
14. Defendant The Honorable Rex Tillerson is the Secretary of State, whose office is located at the Department of State, 2201 C St. NW, Washington, D.C. 20520, and is being sued in his official capacity.
JURISDICTION AND VENUE 15. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. 16. This Court is authorized to issue a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202. 17. This Court is authorized to issue a judgment and injunctive relief pursuant to 5 U.S.C. § 702. 18. Venue in this district is proper pursuant to 28 U.S.C. § 1391(e).
STATUTORY AND REGULATORY BACKGROUND A. United States Citizenship at Birth 19. There are two pathways to become a United States citizen at birth: one pursuant to the Constitution and another by statute, the INA. The “Citizenship Clause” of the Fourteenth Amendment of the Constitution provides, in part, that anyone born in the United States is a citizen at birth. Under the INA, persons born outside the United States may be considered citizens at birth under certain statutorily prescribed circumstances. If a person born outside the
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United States does not acquire citizenship at birth, that person can acquire citizenship only through naturalization, and therefore can never be eligible for the presidency as birthright citizens are.
20. The provisions governing eligibility for U.S. citizenship at birth by individuals born outside the United States are set forth in Sections 301 through 309 of the INA. Section 301 is titled “Nationals and citizens of United States at birth.” Under Section 301(g), babies born abroad are U.S. citizens at birth when (1) one of the child’s parents is a married United States citizen and (2) the U.S. citizen parent lived in the U.S. for at least five years, at least two of which were after the parent’s fourteenth birthday.
21. Section 309 is titled “Children born out of wedlock,” and its provisions explicitly apply only to a person “born out of wedlock.” The requirements for citizenship at birth under that provision differ substantially from those in Section 301, which has long been regarded as applicable to anyone whose parents were lawfully married when the child was born. For unwed mothers, subsection 309(c) specifies, in part, that:
a person born . . . outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth . . . . 22. As a result of the different requirements for the children of wed and unwed U.S. citizens, it is possible for a person to qualify for citizenship at birth under Section 301 even if the person does not qualify under Section 309. Thus, the determination of whether a child is born in or out of wedlock can be dispositive of the ultimate question of whether or not a child acquired U.S. citizenship at birth.
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23. Since its enactment in 1952, the INA has neither included nor been amended to include definitions of the terms “parent,” and “person,” as used in Section 301, or the terms “mother,” “father,” and “out of wedlock,” as used in Section 309.
24. Before and after the enactment of the INA, the majority of U.S. states have followed the common law in presuming that every child born in wedlock is the legitimate offspring of the child’s married parents. That presumption applies even when only one spouse is the child’s biological parent. The structure of the INA effectively codifies the common law presumption of parentage for married couples by making Section 301 applicable to any person except for children who are born “out of wedlock.”
B. The History of Sex-Based Discrimination as to Citizenship Rights 25. The first citizenship law of the United States denied women any individual right to citizenship, let alone any right to transmit citizenship independently to their children. A woman who married would lose whatever citizenship she held prior to marriage, automatically and necessarily becoming a citizen of her husband’s country, as would any children she conceived and carried while married. 26. Because women had no independent right to transmit citizenship to their children, unmarried women could not transmit citizenship to children they conceived and carried. Because unmarried women had no husbands, these children had no parent from whom they could derive citizenship, and therefore had no nationality or citizenship status at all. In light of the hardships suffered by such children, Congress amended the immigration laws to provide citizenship for the children of unwed U.S. citizens. 27. When Congress enacted the INA in 1952, it used the sex-neutral word “parent” in the provision governing the acquisition of U.S. citizenship at birth by children born abroad in
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wedlock, ensuring equal treatment of married men and married women and of the children born during their marriage. By contrast, Congress imposed different requirements on children born out of wedlock based on whether their U.S. citizen parent was an unwed mother or unwed father.
28. The Supreme Court has approved of applying different requirements to the children of unwed mothers and fathers for purposes of acquiring U.S. citizenship under Section 309. According to the Court, pregnancy—by nature and duration—ensures a child and mother have the requisite connection for the mother to transmit citizenship to her child at birth, while an unwed father—by nature of not being married to the child’s mother—may be asked to do more to ensure he is sufficiently connected to a child he may never even meet or have anything to do with beyond his role in the child’s conception.
29. The Supreme Court has rejected the application of different requirements, however, for eligibility for U.S. citizenship at birth of children of unwed fathers and mothers when those requirements have no relationship to—and therefore cannot be justified on the basis of—the biological differences between the sexes associated with pregnancy and childbirth. Thus, for example, federal law cannot require an unwed father to live in the United States for a longer period of time than an unwed mother before conferring citizenship on his child.
30. Congress has made clear that the legislative intent behind the INA should be construed liberally because the INA was designed to make it easier—not harder—for families of citizens and non-citizens to stay together. According to Congress, “the legislative history of the Immigration and Nationality Act clearly indicates that the Congress intended to provide for a liberal treatment of children and was concerned with the problem of keeping families of United States Citizens and Immigrants united.” H.R. Rep. 85-1199, at 2020 (1957). Congress has also
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declared that “the statutory language makes it clear that the underlying intent [is] to preserve the family unit upon immigration to the United States.” Id.
31. In amending the INA, Congress recognized that the hardships faced by families fractured along citizenship lines were overwhelmingly greater than any harm that could come from the liberal treatment of children with respect to citizenship.
C. The Constitutional Rights of Same-Sex Couples 32. As the Supreme Court has recognized, same-sex couples have long been subjected to illegal institutional discrimination and social stigmatization. The Supreme Court’s precedent makes clear that the Constitution compels equal protection and recognition of, and respect for, the rights of same-sex spouses, including their right to have autonomy over the most personal and intimate of choices—decisions about starting a family and sustaining a partnership in which to raise and nurture a child. Accordingly, the State Department must recognize the “equal dignity of same-sex marriages.” United States v. Windsor, 133 S. Ct. 2675, 2693 (2013). 33. After Windsor overturned the statute excluding same-sex marriages from federal recognition, the federal government announced that it would recognize same-sex marriages for immigration purposes. See Statement from Homeland Security Secretary Janet Napolitano on July 1, 2013, available at https://www.uscis.gov/family/same-sex-marriages (“As a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. Just as [the United States Citizenship and Immigration Services] applies all relevant laws to determine the validity of an opposite-sex marriage, we will apply all relevant laws to determine the validity of a same-sex marriage.”). 34. Following Windsor, the Supreme Court overturned state laws that barred samesex couples from marrying as inconsistent with the Constitution’s guarantees of due process and
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equal protection, including rights central to an individual’s autonomy and dignity, such as one’s choice of intimate life partner. Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
35. The Court further warned that failure to recognize same-sex marriages “harm[s] and humiliate[s] the children of same-sex couples.” Id. at 2590. The Court also recognized that “[w]ithout the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser.” Id.
36. In Pavan v. Nathaniel Smith, the Supreme Court held that married couples must receive the same “constellation of benefits . . . linked to marriage,” regardless of whether the marriage is between spouses of the same or opposite sexes. 137 S. Ct. 2075, 2077 (2017). Those benefits include the legal recognition that same-sex spouses may both be the parents of a child born during their marriage, even if only one spouse is the child’s biological parent.
D. The State Department’s Restrictive Classification of Eligible Children 37. The INA does not define or limit the class of persons born in wedlock who are eligible for citizenship at birth pursuant to Section 301. Nevertheless, the State Department is restricting the class to exclude all children of same-sex married couples. 38. The State Department has imposed that policy by inserting a definition of terms into an Appendix to the Foreign Affairs Manual (“FAM”), available at https://fam.state.gov/. Specifically, 1140 Appendix E of the FAM, titled “‘IN WEDLOCK’ AND ‘OUT OF WEDLOCK,’” includes subsection (c), which 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.” (A copy of the relevant portion of the appendix is appended to this Complaint at Exhibit A.)
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39. 1140 Appendix E of the FAM has never been submitted to notice and comment rulemaking. However, it forms the basis for the State Department’s conclusion that the children were born out of wedlock.
40. That definition has the effect of limiting birthright citizenship to children who are biologically related to a U.S. citizen parent, which the United States Court of Appeals for the Ninth Circuit has rejected in two separate decisions. See Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005) (citing Scales v. INS, 232 F.3d 1159, 1166 (9th Cir. 2000)).
FACTUAL ALLEGATIONS A. The Zaccari-Blixt Family 41. Allison is a U.S. citizen who was born, raised, and has lived as an adult in the United States. Born in 1978 in Park Ridge, Illinois, Allison moved at age six with her family to Clemmons, North Carolina, where she lived until graduating from high school and moving to Poughkeepsie, New York to attend Vassar College. Allison lived in the United States continuously from the time she was born in 1978 until 2008. 42. After graduating from college, Allison spent a year and a half coaching college field hockey at Hartwick College in Oneonta, New York, before returning to North Carolina to attend law school. In 2005, Allison received her law degree from the University of North Carolina, and moved to New York City, where she began working as an associate at a law firm. 43. Stefania is an Italian citizen, born in 1974 in Ferentino, Italy. Allison and Stefania met in 2006 when Stefania was visiting New York City on vacation. At that time, Stefania lived and worked in Rome, Italy, where she returned after her trip to New York ended. Allison and Stefania’s relationship continued despite the distance.
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44. At the end of 2007, Stefania returned to New York, this time after a year of being in a long-distance relationship with Allison. Stefania stayed with Allison in New York for as long as she was legally permitted: 90 days. During that time, the couple decided to take the next step in their relationship and live together.
45. Stefania was not eligible then to immigrate to the U.S., nor could she hope to become eligible if the two married: at the time, the Defense of Marriage Act, 1 U.S.C. § 7, barred the federal government from providing immigration benefits on the basis of same-sex marriages.
46. As a citizen of Italy, a member state of the European Union, Stefania could live and work freely in England. As an employee of a law firm with a London office, Allison obtained a transfer of her position to the firm’s London office, allowing her to live and work there. In 2008, Stefania and Allison moved to London so that they could finally be together.
47. In 2009, Allison and Stefania entered into a civil partnership in England. On January 3, 2015, they retroactively converted their civil partnership to a valid marriage following the legalization of same-sex marriage in England. (A copy of Allison’s and Stefania’s marriage certificate is appended to this Complaint at Exhibit B.)
48. In the ensuing years, Allison and Stefania decided to start a family and have children. Given that Allison and Stefania are both women, they conceived children through the use of assisted reproductive technology.
49. In 2014, Stefania became pregnant using sperm from an unknown donor, and on January 30, 2015, gave birth to a baby boy. Stefania Zaccari and Allison Blixt gave their son a name that would reflect their status as a married couple and family: Lucas Alexander ZaccariBlixt. (A copy of Lucas’ birth certificate is appended to this Complaint at Exhibit C.)
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50. Allison and Stefania are Lucas’ parents in all relevant respects. They are Lucas’ legal birth parents, and his birth certificate lists only Allison and Stefania as parents. No one else has ever claimed to be or been declared his parent. Allison and Stefania made the decision to bring Lucas into this world and into their family together, and have raised Lucas together since the day he was born. Under the law of every residence Allison or Lucas has ever had—New York, North Carolina, Illinois, and England—Allison is Lucas’ legal parent.
51. After Lucas was born, Allison and Stefania decided to have another child together. In 2016, Allison became pregnant, using sperm from the same donor (whose identity is unknown) the couple had selected when conceiving Lucas. On February 25, 2017, Allison gave birth to a baby boy. As they did for Lucas, the parents gave their second child a name that would clearly indicate that his parents are Allison Blixt and Stefania Zaccari: Massimiliano Axel Zaccari-Blixt. Allison and Stefania are Massi’s legal parents. They—and they alone—are identified as Massi’s parents on his birth certificate and have acted in all respects as his exclusive parents.
52. Lucas and Massi are part of the same family, with the same parents. In terms of their relationship to Allison, the only distinction between them is that Allison’s wife conceived and carried Lucas instead of Allison. That distinction should make no difference to Lucas’ eligibility for U.S. citizenship at birth as a child demonstrably not born out of wedlock. But to the State Department, this is all the difference in the world.
B. The Application of the State Department’s Policy to the Zaccari-Blixt Family 53. After Lucas was born in January 2015, Allison and Stefania appeared in person at the U.S. Embassy in London to apply for a Consular Report of Birth Abroad and a U.S. passport for Lucas.
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54. Notwithstanding Allison’s citizenship, marriage, and status as Lucas’ legal parent, an Embassy official inquired into the details of Lucas’ birth, asking how Allison and Stefania had conceived Lucas, whose genetic material had been used to conceive him, and in whose womb he had been carried. These invasive questions were as shocking as they were demeaning to Allison and her family. The Embassy official did not explain how these questions were relevant, if at all, to the question of whether Lucas had been born in or out of wedlock.
55. After answering the official’s questions, Allison was informed that it would be futile to apply for a Consular Report of Birth Abroad for Lucas unless Allison could prove she had carried him or provided the egg used to conceive him. Accordingly, Allison and Stefania left the Embassy without submitting an application, heartbroken to learn that the U.S. government would not recognize or give effect to their marriage or Allison’s parentage.
56. After Massi was born, Allison and Stefania returned to the Embassy on May 23, 2017 to submit applications for Consular Reports of Birth Abroad and U.S. passports on behalf of Lucas and Massi. Again, Stefania and Allison were asked a series of invasive and legally irrelevant questions about how their children were conceived and born. Again, they were told that Lucas would not be recognized as a citizen because of the lack of a genetic or gestational relationship between him and Allison. Stefania and Allison nonetheless submitted the applications on behalf of both Lucas and Massi.
57. In May 2017, Allison and Stefania received notice from the U.S. Embassy in London that Massi’s application for a Consular Report of Birth Abroad for a U.S. passport had been granted, but that Lucas’ application had been denied. According to a letter from the Embassy, dated May 24, 2017 (the “Letter”), Lucas’ application had been denied on the ground that Section 309(c) of the INA required proof of Lucas’ genetic parental or gestational
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relationship to Allison regardless of his birth certificate and Allison and Stefania’s marriage. (A copy of the Letter is appended to this Complaint at Exhibit D.) Specifically, the Letter read, in part:
It has been determined that there is not a biological relationship be [sic] between the U.S. citizen mother and child, through either a genetic parental relationship or a gestational relationship, as required under the provisions of section 309(c) of the Immigration and Nationality Act. Therefore, your application is denied. (Id. at 1.) 58. The Letter did not explain why the State Department or the Embassy considered Section 309(c) applicable to Lucas, whose parents were lawfully married to each other at the time of his birth. The Letter did not refer to Section 301(g) or provide any legal authority supporting the refusal to recognize Allison’s status as Lucas’ mother or Lucas’ status as a child born in wedlock. The Letter also failed to identify any means through which its denial of Lucas’ application could be challenged, appealed, or reviewed. (Id.) 59. Because Lucas was not granted a Consular Report of Birth Abroad, he was not granted a U.S. passport, and therefore faces significant restrictions on his liberty, including his freedom and ability to enter, travel through, or remain in the United States. In light of Lucas’ young age and dependence on his parents, these restrictions impose concrete harms on Lucas and his family, as well as governmentally imposed diminutions of their fundamental protections and dignity, that are overwhelming and ongoing. For example, every time the Zaccari-Blixt family travels from London to visit Allison’s family in North Carolina, the family must travel through the long line for non-citizens, and explain that Lucas is not considered a citizen because he was conceived by Allison’s wife instead of by Allison herself and is therefore viewed by the government as illegitimate. Not only does this make traveling home more burdensome, it also exposes Allison, Stefania, and their young children to the pain and stigma of knowing that these
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burdens result from the State Department’s refusal to recognize Allison’s marriage to Stefania and parentage of Lucas.
60. In light of these and other hardships caused by the Embassy’s decision, Plaintiffs’ counsel, on behalf of Allison and Lucas, submitted a letter to the Embassy on September 5, 2017 requesting reconsideration of its denial of Lucas’ application for a Consular Report of Birth Abroad. Counsel sought reconsideration on the ground that the State Department had applied the incorrect statutory provision based on an unconstitutional rationale that denies legal recognition to same-sex marriages.
61. In a letter dated November 7, 2017, the Embassy responded, summarily stating that it had “affirm[ed] that Lucas did not acquire U.S. citizenship at birth,” and therefore could not issue him a Consular Report of Birth Abroad. (A copy of that letter is appended to this Complaint at Exhibit E.) The Embassy did not offer any explanation or reason for its affirmance.
C. The State Department Erroneously Deemed Lucas to Have Been Born “Out of Wedlock”
62. As alleged herein, Lucas acquired U.S. citizenship at birth under Section 301(g) of the INA. Pursuant to Section 301(g), a U.S. citizen at birth includes:
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. 63. Because Lucas is not a child born out of wedlock, his citizenship status is governed by Section 301(g). Lucas clearly satisfies the criteria for U.S. citizenship at birth under Section 301(g). That is so because his mother Allison, lived in the U.S. for most of her life and
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clearly satisfies the statutory residence requirements of physical presence in the U.S. for no less than five years, including at least two after turning fourteen years old.
64. The only way that Lucas would not be a citizen at birth under the INA is if Lucas were a child born out of wedlock, as the State Department has deemed him. That determination was erroneous both as a matter of statutory interpretation and as a matter of the Constitution’s guarantees of due process and equal protection.
D. The State Department’s Policy Unconstitutionally Discriminates on the Basis of Sex and Sexual Orientation.
65. The decision to marry—like the decision to have children—is one of the most deeply personal choices one can make. For the liberty guaranteed by the Constitution to be meaningful and effective, individuals must be able to make these fundamental and personal life choices freely, with dignity and without unwarranted consequences for the individual and his family. Accordingly, the Constitution’s guarantees of due process and equal protection apply with full force to an individual’s fundamental right to marry the spouse of his or her own choosing, including a spouse of the same sex. The Constitution requires not only recognition and protection of the right to enter into same-sex marriages, but also affords same-sex marriages the full constellation of legal rights and benefits—including dignity and respect—that have traditionally flowed from opposite-sex marriages.
66. The State Department’s policy and its application to Lucas is unconstitutional because they violate Lucas’ and Allison’s rights to due process and equal protection under the Fifth Amendment of the Constitution. As discussed above, the State Department refuses to apply Section 301(g) of the INA to Lucas based on its erroneous and demeaning classification of him as a child born out of wedlock. Apparently on that basis alone, it refuses to recognize Lucas’ citizenship.
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67. Under the State Department’s policy, citizenship through Section 301 is presumptively available to any person the State Department deems born “in wedlock”—a class the agency has construed to consist exclusively of children conceived and carried by women who are married to men.
68. Nothing in the INA or the Constitution permits the State Department’s limitation of birthright citizenship under Section 301 to the children of U.S. citizens in opposite-sex marriages. The State Department’s requirement is unfounded and ensures unconstitutionally unequal treatment of the children of same-sex married couples.
69. The government has provided no rationale for this discriminatory policy. Furthermore, there is no legitimate governmental purpose that could justify limiting birthright citizenship in this way. To the contrary, such an approach undermines the congressionally established, legitimate, and important government purposes that underlie the INA itself. For example, the State Department’s approach ultimately makes it harder, not easier, for families like the Zaccari-Blixts to stay together. This undermines the INA’s statutory intent of “provid[ing] for a liberal treatment of children and . . . keeping families of United States Citizens and Immigrants united.” H.R. Rep. 85-1199, at 2020 (1957).
70. In amending the INA, Congress recognized that no harm could come from the liberal treatment of children with respect to citizenship, and that the consequences of such treatment would fulfill “the clearly expressed legislative intention to keep together the family unit wherever possible.” Id. at 2021.
71. Although the State Department’s policy may in theory apply to marriages between spouses of opposite sexes, its overwhelming effect is to deprive spouses in same-sex marriages—and their children—of fundamental rights and equal dignity as citizens under the
18

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law. The fact that some opposite-sex married couples may use assisted reproductive technology to conceive a child does not change the discriminatory nature or harmful effects of the government’s policy on same-sex couples, for whom such means are the only way to procreate.
72. In addition to discriminating against Lucas, the State Department’s policy discriminates against Allison by denying her the ability to transmit citizenship to a child her wife conceived and carried during Allison’s marriage. This right is presumptively available to similarly situated parents who are men—i.e., male U.S. citizens married to alien national women. Therefore, in denying Allison this right, the State Department’s policy also discriminates against her based on her sex.
COUNT I – DECLARATORY JUDGMENT THE STATE DEPARTMENT’S POLICY VIOLATES THE DUE PROCESS
GUARANTEE OF THE FIFTH AMENDMENT. 73. Plaintiffs repeat, reallege, and incorporate by reference the allegations contained in paragraphs 1 through 72 as if fully set forth herein. 74. The Fifth Amendment of the Constitution prohibits the federal government from depriving individuals of their rights without due process of law. 75. The Due Process Clause of the Fifth Amendment prohibits the federal government from depriving any person of life, liberty, or property without due process of law, as well as from depriving any person of equal protection under the law. 76. Section 301 of the INA entitles U.S. citizens to confer citizenship at birth on their children born abroad in wedlock. The INA does not require U.S. citizens to be in opposite-sex marriages to confer citizenship under Section 301. Nor does the INA require a child’s biological parents to be married to each other for the child to be considered born in wedlock, and therefore
19

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eligible for citizenship under Section 301. The INA merely requires that the child is not born out of wedlock.
77. Defendants have violated and continue to violate the Fifth Amendment of the United States Constitution by enforcing a policy that excludes U.S. citizens in same-sex marriages from conferring citizenship pursuant to Section 301, while restricting access to citizenship under that provision to the children of opposite-sex married couples. Defendants’ policy has deprived and continues to deprive Plaintiffs of their rights to acquire and confer citizenship at birth pursuant to INA Section 301. As a result of Defendants’ policy, Plaintiffs have suffered, and will suffer, irreparable harm to their protected interest in conferring, and having recognized, Lucas’ U.S. citizenship.
78. There is no rational, legitimate, or substantial governmental interest served by denying the children of same-sex married couples access to citizenship at birth pursuant to Section 301 of the INA based on the sex and/or sexual orientation of the child’s citizen-parent. Nor is there any rational, legitimate, or substantial government interest served by denying U.S. citizens in same-sex marriages the right to confer citizenship on children born abroad during their marriage based on the citizen’s sex and/or sexual orientation or exercise of the protected right to enter into a same-sex marriage. Defendants have offered no justification, either in their Letter, or in response to counsel’s September 5, 2017 inquiry, for precluding Allison from conferring on Lucas citizenship pursuant to Section 301.
79. As a result of Defendants’ arbitrary, discriminatory, and unlawful implementation and enforcement of its policy prohibiting U.S. citizens in same-sex marriages from conferring U.S. citizenship on their children born in wedlock outside the United States, Plaintiffs have
20

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suffered injuries and will suffer further irreparable harm to their constitutional rights under the Fifth Amendment if the State Department’s policy is not declared unconstitutional and enjoined.
80. Plaintiffs have no adequate remedy at law. COUNT II – DECLARATORY JUDGMENT
THE STATE DEPARTMENT’S POLICY VIOLATES THE CONSTITUTIONAL GUARANTEE OF EQUAL PROTECTION UNDER THE LAW.
81. Plaintiffs repeat, reallege, and incorporate by reference the allegations contained in paragraphs 1 through 72 as if fully set forth herein.
82. The Due Process Clause of the Fifth Amendment prohibits the federal government from denying persons the equal protection of its laws.
83. Under the State Department’s interpretation of Sections 301 and 309, no child could be considered born in wedlock to spouses of same-sex marriages, even if the child’s parents are married to each other and are the sole individuals identified on the child’s birth certificate as his or her parents.
84. The State Department has offered no rationale, in either its initial Letter or in response to counsel’s September 5, 2017, inquiry, to explain why it bars same-sex parents from relying upon Section 301.
85. The State Department’s interpretation has a disparate impact on same-sex married couples, because under that policy they can never confer upon a child U.S. citizenship pursuant to Section 301.
86. Defendants’ Letter, denying the application for a Consular Report of Birth Abroad by deeming Lucas to be a child born out of wedlock, discriminates against Lucas and Allison based on sex and sexual orientation, without lawful justification, in violation of the Equal Protection component of the Due Process Clause of the Fifth Amendment.
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87. Defendants’ above-described discrimination against people who have an intimate relationship with a partner of the same sex—a discrete and insular group with a long history of discrimination and degradation including by those acting under the color of law—does not advance any rational, legitimate, or substantial governmental interest.
88. As a result of Defendants’ implementation and enforcement of its discriminatory policy of excluding the children of same-sex married couples from qualifying for citizenship at birth as children born in wedlock outside the United States, Plaintiffs have suffered injuries and will suffer further irreparable harm to their constitutional rights under the Fifth Amendment if the State Department’s policy is not declared unconstitutional and enjoined.
89. Plaintiffs have no adequate remedy at law. COUNT III – ADMINISTRATIVE PROCEDURE ACT
90. Plaintiffs repeat, reallege, and incorporate by reference the allegations contained in paragraphs 1 through 72 as if fully set forth herein.
91. Plaintiffs have suffered a “legal wrong because of agency action.” 5 U.S.C. § 702.
92. The Administrative Procedure Act bars any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
93. Defendants’ interpretation of Sections 301 and 309, as embodied in the FAM, conflicts with the clear language and statutory purpose of the INA. This interpretation, published without any public comment, is arbitrary, capricious, and not in accordance with the INA.
22

Case 1:18-cv-00124-EGS Document 1 Filed 01/22/18 Page 23 of 25 94. Plaintiffs have suffered and continue to suffer legal wrongs because of the U.S. Embassy’s decision to deny the Consular Report of Birth Abroad application submitted on behalf of Lucas. 95. Plaintiffs have exhausted all administrative remedies available to them as of right. 96. Plaintiffs have no other recourse to judicial review other than this action. 97. Defendants’ exclusion of children born abroad in same-sex marriages from the category of children who qualify for citizenship at birth as born to valid marriages lacks a rational basis, is arbitrary, and is contrary to law. 98. Plaintiffs have no adequate remedy at law.
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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 Lucas’ citizenship status on that basis, both on its face and as

applied to Plaintiffs, Allison Dawn Blixt, in her individual capacity, and

on behalf of her son, Lucas Alexander Zaccari-Blixt;

ii.

Declare Lucas Alexander Zaccari-Blixt a U.S. citizen at birth;

iii.

Permanently enjoin Defendants from continuing to discriminate against

Plaintiffs by classifying 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.

24

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 Case 1:18-cv-00124-EGS Document 31 Filed 09/03/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

ALLISON DAWN BLIXT and LUCAS

)

ALEXANDER ZACCARI-BLIXT,

)

)

Plaintiffs;

)

)

v.

)

)

THE UNITED STATES DEPARTMENT OF STATE )

et al.,

)

)

Defendants.

)

Civ. Action No. 18-124 (EGS)

Motion to Dismiss for Lack of Subject Matter Jurisdiction, and Failure to State a Claim Upon Which Relief Can Be Granted
Defendants, by and through undersigned counsel, hereby move to dismiss this action in its entirety, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, for lack of subject matter jurisdiction, and failure to state a claim upon which relief can be granted. The Court should grant the motion for the reason stated in the attached memorandum of points and authorities. A proposed order is attached.

Dated: September 3, 2018

Respectfully submitted,
JOSEPH D. HUNT Assistant Attorney General
JOSHUA E. GARDNER Assistant Director
/s/ Vinita B. Andrapalliyal VINITA B. ANDRAPALLIYAL Trial Attorney
LISA ZEIDNER MARCUS Senior Counsel (N.Y. Bar # 4461679)

Case 1:18-cv-00124-EGS Document 31 Filed 09/03/18 Page 2 of 2
United States Department of Justice Civil Division Federal Programs Branch P.O. Box 883 Washington, DC 20044 Tel: (202) 305-0845 Fax: (202) 616-8470 vinita.b.andrapalliyal@usdoj.gov
Counsel for Defendants

Case 1:18-cv-00124-EGS Document 31-1 Filed 09/03/18 Page 1 of 35

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

ALLISON DAWN BLIXT and LUCAS

)

ALEXANDER ZACCARI-BLIXT,

)

)

Plaintiffs;

)

)

v.

)

)

THE UNITED STATES DEPARTMENT OF STATE )

et al.,

)

)

Defendants.

)

Civ. Action No. 18-124 (EGS)

Memorandum in Support of Defendants’ Motion to Dismiss

Case 1:18-cv-00124-EGS Document 31-1 Filed 09/03/18 Page 2 of 35
Table of Contents INTRODUCTION ............................................................................................................................... 1 LEGAL BACKGROUND .................................................................................................................... 2
A. Basic principles of U.S. citizenship and naturalization ........................................... 2 B. 8 U.S.C. §§ 1401 and 1409 .......................................................................................... 3 C. The Secretary of State’s authority to issue Consular Reports of Birth
Abroad and U.S. passports. ....................................................................................... 4 FACTUAL BACKGROUND................................................................................................................. 7 LEGAL STANDARDS......................................................................................................................... 8 ANALYSIS ........................................................................................................................................ 9
A. Plaintiffs lack standing to challenge Defendants’ application of 8 U.S.C. § 1409 instead of 8 U.S.C. § 1401 to Lucas’s applications........................... 9
B. The Complaint fails to state a claim under either the Declaratory Judgment Act or the Constitution........................................................................... 11 1. The Declaratory Judgment Act does not provide a cause of action................... 11 2. Plaintiffs do not state an Equal Protection claim because in all cases, regardless of the sex or sexual orientation of the U.S. citizen parent, Defendants require both a legal relationship and a biological relationship for a child to acquire citizenship from that parent. ........................ 11 3. Plaintiffs’ substantive due process claim fails because they fail to identify a fundamental right that Defendants have purportedly infringed upon or establish that Defendants’ actions fail rational basis review........................................................................................................ 17
C. Plaintiffs fail to state a valid Administrative Procedure Act claim...................... 20 1. Plaintiffs’ APA claim is barred because Plaintiffs have an adequate remedy at law..................................................................................................... 20 2. Defendants reasonably interpret the term “parent” in § 1401 as requiring both a biological and a legal relationship........................................... 26
CONCLUSION ................................................................................................................................ 26
i

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Table of Authorities
Cases
A. Mitchell Palmer, Citizenship - Children Born Abroad out of Wedlock of American Fathers and Alien Mothers, 32 Op. Att'y Gen. 162 (1922) ................................................................................................... 26
Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052 (D.C. Cir. 2007) .................................................................................................. 8
Abigail All. for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695 (D.C. Cir. 2009) ...................................................................................... 17, 19, 20
Acheson v. Maenza, 202 F.2d 453 (D.C. Cir. 1953) .................................................................................................... 2
Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227 (1937).................................................................................................................. 11
Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011) .................................................................................................. 11
Alsaidi v. U.S. Dep't of State, 292 F. Supp. 3d 320 (D.D.C. 2018) .......................................................................................... 21
Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137 (D.C. Cir. 2011) .................................................................................................. 8
Arden Wood, Inc. v. U.S. Citizenship & Immigration Servs., 480 F. Supp. 2d 141 (D.D.C. 2007) .......................................................................................... 25
*Ashcroft v. Iqbal, 556 U.S. 662 (2009).................................................................................................. 8, 12, 15, 26
*Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).................................................................................................................... 8
Bolling v. Sharpe, 347 U.S. 497 (1954).................................................................................................................. 12
Bowen v. Massachusetts, 487 U.S. 879 (1988)............................................................................................................ 21, 23
Browning v. Clinton, 292 F.3d 235 (D.C. Cir. 2002) ........................................................................................ 8, 12, 19
Califano v. Yamasaki, 442 U.S. 682 (1979).................................................................................................................. 25
ii

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Chacoty v. Tillerson, 285 F. Supp. 3d 293 (D.D.C. 2018) .......................................................................................... 22
Chavez v. Martinez, 538 U.S. 760 (2003).................................................................................................................. 17
Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 846 F.3d 1235 (D.C. Cir. 2017) .......................................................................................... 23, 24
Collins v. City of Harker Heights, 503 U.S. 115 (1992).................................................................................................................. 17
Crider v. Ashcroft, 74 F. App’x 729 (9th Cir. 2003) ............................................................................................... 26
Davis v. Bd. of Parole of Dept. of Justice, 306 F.2d 801 (D.C. Cir. 1962) .................................................................................................. 11
Durable Mfg. Co. v. U.S. Dep't of Labor, 578 F.3d 497 (7th Cir. 1999) ...................................................................................................... 5
Edwards v. Bryson, 578 Fed. App’x 81 (3d Cir. 2014)............................................................................................. 21
*El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265 (D.C. Cir. 2005) .................................................................................... 20, 21, 22
Elgharib v. Napolitano, 600 F.3d 597 (6th Cir. 2010) ...................................................................................................... 5
Engquist v. Oregon Dept. of Agr., 553 U.S. 591 (2008).................................................................................................................. 16
Envtl. Def. Fund v. Reilly, 909 F.2d 1497 (D.C. Cir. 1990) ................................................................................................ 21
Fiallo v. Bell, 430 U.S. 787 (1977).................................................................................................................. 16
Garcia v. Vilsack, 563 F.3d 519 (D.C. Cir. 2009) ............................................................................................ 20, 21
Gill v. Whitford, 138 S.Ct. 1916 (2018) ............................................................................................................... 25
Haig v. Agee, 453 U.S. 280 (1981).................................................................................................................... 5
iii

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Herbert v. Nat’l Acad. of Scis., 974 F.2d 192 (D.C. Cir. 1992) .................................................................................................... 8
*Hinojosa v. Horn, 896 F.3d 305 (5th Cir. 2018) .............................................................................................. 22, 23
*Hizam v. Kerry, 747 F.3d 102 (2d Cir. 2014)........................................................................................................ 5
Hutchins v. Dist. of Columbia, 188 F.3d 531 (D.C. Cir. 1999) .................................................................................................. 18
Icaza v. Schultz, 656 F. Supp. 819 (D.D.C. 1987) ............................................................................................... 19
In re Thornburgh, 869 F.2d 1503 (D.C. Cir. 1989) .................................................................................................. 9
INS v. Pangilinan, 486 U.S. 875 (1988)............................................................................................................ 24, 25
Intelsat USA Sales Corp. v. Juch-Tech, Inc., 935 F. Supp. 2d 101 (D.D.C. 2013) .......................................................................................... 11
*L. Xia v. Tillerson, 865 F.3d 643 (D.C. Cir. 2017) .............................................................................................. 5, 22
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992)................................................................................................................ 8, 9
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990).................................................................................................................. 25
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994).................................................................................................................. 25
Maldonado-Sanchez v. Schultz, 706 F. Supp. 54 (D.D.C. 1988) ................................................................................................. 21
Martin v. U.S. Marshals Serv., 674 F. Supp. 2d 122 (D.D.C. 2009) .......................................................................................... 12
Miller v. Christopher, 96 F.3d 1467, 1470 (D.C. Cir. 1996) .................................................................................... 9, 25
Miller v. Albright, 523 U.S. 420 (1998).................................................................................................... 3, 9, 18, 19
iv

Case 1:18-cv-00124-EGS Document 31-1 Filed 09/03/18 Page 6 of 35
Personnel Adm’r v. Feeney, 442 U.S. 256 (1979).................................................................................................................. 13
Pub. Affairs Assocs., Inc. v. Rickover, 369 U.S. 111 (1962).................................................................................................................. 11
Reno v. Flores, 507 U.S. 292 (1993).................................................................................................................. 17
Rogers v. Bellei, 401 U.S. 815 (1971).......................................................................................................... 2, 3, 18
Schilling v. Rogers, 363 U.S. 666 (1960).................................................................................................................... 8
Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017) ............................................................................................................ 3, 4
Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950).................................................................................................................. 11
Stewart v. Gaines, 370 F. Supp. 2d 293 (D.D.C. 2005) .................................................................................... 12, 16
Tuan Anh Nguyen v. INS, 533 U.S. 53 (2001)............................................................................................................. passim
Tuaua v. United States, 788 F.3d 300 (D.C. Cir. 2015) .................................................................................................... 2
U.S. Army Corps of Eng’rs v. Hawkes Co., Inc., 136 S. Ct. 1807 (2016) .............................................................................................................. 20
United States v. Wong Kim Ark, 169 U.S. 649 (1898).................................................................................................................... 3
Vacco v. Quill, 521 U.S. 793 (1997).................................................................................................................. 13
Villarreal v. Horn, 203 F.Supp.3d 765 (S.D. Tex. 2016) ........................................................................................ 21
Washington v. Glucksberg, 521 U.S. 702 (1997)............................................................................................................ 17, 18
Women Prisoners of the D.C. Dep’t of Corr. v. District of Columbia, 93 F.3d 910 (D.C.Cir.1996) ...................................................................................................... 12
v

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Yith v. Nielsen, 881 F.3d 1155 (9th Cir. 2018) .................................................................................................... 5
Young v. U.S. Dep’t of Labor, 2018 WL 3941948 (D.D.C. Aug. 16, 2018) ............................................................................. 10
Statutes 5 U.S.C. § 704............................................................................................................................... 15 6 U.S.C. § 251............................................................................................................................... 23 8 U.S.C. § 1104............................................................................................................................... 4 8 U.S.C. § 1229a ........................................................................................................................... 23 8 U.S.C. § 1401...................................................................................................................... passim 8 U.S.C. § 1409............................................................................................................... 4, 6, 11, 20 8 U.S.C. § 1421....................................................................................................................... 23, 26 8 U.S.C. § 1431............................................................................................................................. 18 8 U.S.C. § 1433......................................................................................................................... 2, 25 8 U.S.C. § 1503...................................................................................................................... passim 8 U.S.C. § 1504............................................................................................................................... 5 22 U.S.C. § 211a ............................................................................................................................. 5 22 U.S.C. § 212............................................................................................................................. 24 22 U.S.C. § 1731........................................................................................................................... 25 22 U.S.C. § 2705.................................................................................................................... passim U.S. Const., amend. XIV, § 1 ............................................................................................... 3, 9, 25 Regulations 22 C.F.R. § 50.7 .............................................................................................................................. 4 Other Authorities Department of State’s Foreign Affairs Manual (“FAM”)...................................................... passim
vi

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Table of Department of State’s Foreign Affairs Manual Provisions
Many provisions of the Department of State’s Foreign Affairs Manual (“FAM”) were renumbered as of July 16, 2018, after Plaintiffs filed the Complaint in this case. To assist the Court, the following chart shows the current and former citations for FAM cites included in Plaintiffs’ Complaint and/or this memorandum of law.

Current FAM citation 8 FAM 102.01 8 FAM 301.7-4 8 FAM 304.3-4 8 FAM 301.4 8 FAM 301.4-1(B) 8 FAM 301.4-1(D) 8 FAM 301.4-1 8 FAM 304.1-3
8 FAM 304.1-2
8 FAM 304.3-2 8 FAM 304.3-1(b)

Former FAM citation 7 FAM 1100 1120 Appendix E 7 FAM 1133.4-4 7 FAM 1140 Appendix D 7 FAM 1131.4 7 FAM 1131.2 7 FAM 1131.4(a) 7 FAM 1131.4-1 7 FAM 1140 Appendix E (attached to Plaintiffs’ Complaint as Compl. Ex. A) 7 FAM 1140 Appendix E (attached to Plaintiffs’ Complaint as Compl. Ex. A) 7 FAM 1120 Appendix D 7 FAM 1110 Appendix D

vii

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INTRODUCTION Plaintiffs Allison Blixt (“Allison”) and Lucas Zaccari-Blixt (“Lucas”) (collectively, “Plaintiffs”) maintain that a U.S. citizen has a statutory and constitutional right to transmit U.S. citizenship to the foreign-born, biological child of the citizen’s alien wife, automatically upon the birth of that child, so long as the child was born during the marriage of the citizen and her wife, and regardless of whether the child has any biological (i.e., genetic or gestational) relationship to a U.S. citizen. Specifically, plaintiffs challenge the decisions by the U.S. Embassy in London— acting under the authority of defendants the U.S. Department of State and the Secretary of State (collectively, “Defendants”)—to decline to issue a Consular Report of Birth Abroad (“CRBA”)1 and a U.S. passport to a foreign-born child, Lucas, who lacks a biological relationship with a U.S. citizen parent. Lucas was born in Lambeth, England, in January 2015, and his biological parents are a non-U.S. national and an anonymous sperm donor. Plaintiffs have filed this lawsuit purporting to bring claims pursuant to the Declaratory Judgment Act (“DJA”), the Fifth Amendment of the Constitution, and the Administrative Procedure Act (“APA”). Asserting the DJA as the cause of action for their constitutional claims, Plaintiffs contend that by denying Lucas a CRBA and a U.S. passport, Defendants have erroneously deprived Lucas of acquisition of citizenship at birth, and have unconstitutionally discriminated against Plaintiffs on the basis of Allison’s sex and sexual orientation. Additionally, Plaintiffs assert that Defendants’ denial of a CRBA and U.S. passport for Lucas violates the APA. Plaintiffs’ claims must be dismissed, for multiple reasons. First, Plaintiffs cannot obtain their requested relief for lack of standing. To the extent they allege injury from Defendants’ application of the acquisition of citizenship statute pertaining to children born “out of wedlock,”
1 A Consular Report of Birth Abroad “is a formal document certifying the acquisition of U.S. citizenship at birth by a person born abroad to a U.S. citizen parent(s).” 8 FAM 101.1-2; see also 22 U.S.C. § 2705.
1

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they fail to establish that application of their preferred statutory provision would change the result of their CRBA and passport application adjudications.
Second, Plaintiffs’ claims must be dismissed because they fail as a matter of law. Plaintiffs’ DJA claims should be dismissed because the DJA does not provide a cause of action, only a form of relief, and because Plaintiffs’ factual allegations do not establish plausible equal protection or due process violations. Plaintiffs fail to plead any allegations of intentional discrimination for the purposes of their equal protection claim, and they fail to identify a fundamental right that has been infringed upon or establish that Defendants’ actions fail rational basis review for the purposes of their due process claim. Plaintiffs’ APA claim should be dismissed because the APA’s general grant of judicial review precludes review of final agency action for which there an “other adequate remedy in a court.” 5 U.S.C. § 704. Congress has provided a specific, separate avenue for Plaintiffs to obtain judicial review of their claims that they have been denied “a right or privilege as a national of the United States,” namely the provisions of 8 U.S.C. § 1503. Because § 1503 provides an “adequate remedy at law,” APA review is unavailable to Plaintiffs. Moreover, Defendants’ interpretations of the applicable statutes are reasonable as a matter of law.
For these reasons, and as explained more fully below, the Complaint should be dismissed. LEGAL BACKGROUND
A. Basic principles of U.S. citizenship and naturalization In the United States, “‘nationality may be predicated either on jus soli or on jus
sanguinis,’” Tuaua v. United States, 788 F.3d 300, 309 (D.C. Cir. 2015) (quoting Acheson v. Maenza, 202 F.2d 453, 459 (D.C. Cir. 1953)), terms that translate to “right of birthplace” and “right of blood,” respectively, see id. As originally adopted, the Constitution lacked any definition of citizenship. Rogers v. Bellei, 401 U.S. 815, 828 (1971). This changed with ratification of the Fourteenth Amendment in July 1868, see id., which provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the
2

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United States and of the State wherein they reside.”2 U.S. Const. amend. XIV, § 1. The Fourteenth Amendment “relat[es] to the acquisition of citizenship by facts occurring within the limits of the United States.” United States v. Wong Kim Ark, 169 U.S. 649, 688 (1898). It does not cover “the acquisition of citizenship by being born abroad of American parents,” and instead “left that subject to be regulated, as it had always been, by congress, in the exercise of the power conferred by the constitution to establish a uniform rule of naturalization.” Id. While colloquially a foreign-born child’s acquisition of citizenship through a U.S. citizen parent may be referred to as “birthright citizenship,” see, e.g., Compl. ¶ 1, ECF No. 1, “the [Supreme] Court has specifically recognized the power of Congress not to grant a United States citizen the right to transmit citizenship by descent.” Rogers, 401 U.S. at 830 (emphasis added); see also Miller v. Albright, 523 U.S. 420, 424 (1998) (“Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress.”). B. 8 U.S.C. §§ 1401 and 1409
Congress’s present-day rules for acquiring U.S. citizenship at birth are found principally in 8 U.S.C. § 1401, titled “Nationals and citizens of United States at birth” and also known as Section 301 of the Immigration and Nationality Act. Sessions v. Morales-Santana, 137 S. Ct. 1678, 1686 (2017), and 8 U.S.C. § 1409, titled “Children born out of wedlock.”
Under section 1401, a person born outside of 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
2 “This sentence of the fourteenth amendment is declaratory of existing rights [at the time of passage], and affirmative of existing law, as to each of the qualifications therein expressed,— ‘born in the United States,’ ‘naturalized in the United States,’ and ‘subject to the jurisdiction thereof’; in short, as to everything relating to the acquisition of citizenship by facts occurring within the limits of the United States.” United States v. Wong Kim Ark, 169 U.S. 649, 688 (1898)
3

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after attaining the age of fourteen” shall be a U.S. citizen. 8 U.S.C. § 1401(g);3 see also Tuan Anh Nguyen v. INS, 533 U.S. 53, 59 (2001).
8 U.S.C. § 1409, or Section 309 of the INA, provides several situational-categories by which a child may acquire U.S. citizenship at birth, in addition to those described in § 1401. The title of section 1409 indicates that it applies to “children born out of wedlock,” but that term is not explicitly defined by the INA. Section 1409(c) provides an avenue for at-birth citizenship in the case of a U.S. citizen mother in an out of wedlock birth, provided the U.S. citizen mother meets the physical presence requirements contained within the statute.4 C. The Secretary of State’s authority to issue Consular Reports of Birth Abroad and U.S.
passports. The Secretary of State is charged with “the administration and the enforcement of [the Immigration and Nationality Act] and all other immigration and nationality laws relating to ... the determination of nationality of a person not in the United States.” 8 U.S.C. § 1104(a). Pursuant to this authority, the Department of State issues documentation of the birth of U.S. citizens born abroad. See 22 C.F.R. § 50.7; see also 22 U.S.C. § 2705. Congress also authorized the Secretary of State to “grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by diplomatic and consular officers of the United States ... under such rules as the President shall designate and prescribe for and on behalf of the United States, and no other
3 Subsections (a), (b), (c), (d), (e), and (f) of 8 U.S.C. § 1401 describe other categories of persons who acquire citizenship at birth, including for example “a person born in the United States, and subject to the jurisdiction thereof,” 8 U.S.C. § 1401(a). This brief primarily addresses 8 U.S.C. § 1401(g) because Plaintiffs’ allegations implicate that section. See, e.g., Compl. ¶ 3. 4 See also Morales-Santana, 137 S.Ct. 1678 (holding that the differing physical presence requirements in 8 U.S.C. § 1409 (a) and (c) for unwed fathers and mothers was unconstitutional and ordering that, until Congress enacted a “uniform prescription,” 8 U.S.C. § 1401(a)(7)’s “now-five-year [physical presence] requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers”).
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person shall grant, issue, or verify such passports.”5 22 U.S.C. § 211a. CRBAs and passports serve to prove the citizenship status of their holders. 22 U.S.C. § 2705. But neither document actually confers citizenship.6 See id.; 8 U.S.C. § 1504(a); see also, e.g., L. Xia v. Tillerson, 865 F.3d 643, 651–52, 655–56 (D.C. Cir. 2017) (passports); Hizam v. Kerry, 747 F.3d 102, 107–08 (2d Cir. 2014) (CRBAs).
Department of State guidance regarding interpretation and administration of the Immigration and Nationality Act can be found in its Foreign Affairs Manual (“FAM”). The FAM states that “[s]ince 1790, there have been two prerequisites for transmitting U.S. citizenship at birth to children born abroad.” 8 FAM 301.4-1(B).7 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 United States for the time required by the law in effect when the child was born.” Id.
Against this backdrop, the Department interprets the phrase “born … of parents” in 8 U.S.C. § 1401 to include a biological connection between the child and the referenced parents. Thus, the Department reads 8 U.S.C. § 1401(g) as applying to children whose biological parents are married to each other at the time of the child’s birth. See 8 FAM 301.7-4(D) (interpreting
5 Although enacted as part of the Passport Act of 1926, the pertinent language regarding the Secretary’s Authority dates back to 1874. See Haig v. Agee, 453 U.S. 280, 290 (1981). 6 The “sole authority to naturalize persons as citizens of the United States is conferred upon the Attorney General.” 8 U.S.C. § 1421(a). “When Congress passed the Homeland Security Act of 2002, it transferred to DHS authority over all functions that the former Immigration and Naturalization Service . . . or its officers previously carried out.” Elgharib v. Napolitano, 600 F.3d 597, 606–07 (6th Cir. 2010); 6 U.S.C. § 251. “Under 6 U.S.C. § 557, references in federal law to any agency or officer whose functions have been transferred to DHS shall be deemed to refer to the Secretary of DHS or other official or component to which the functions were transferred.” Durable Mfg. Co. v. U.S. Dep't of Labor, 578 F.3d 497, 499 n. 1 (7th Cir. 1999). As a result, courts interpret the reference to the Attorney General in 8 U.S.C. § 1421 “as referring to the authority of the USCIS,” the DHS component tasked administering that statute. See Yith v. Nielsen, 881 F.3d 1155, 1158 (9th Cir. 2018). 7 Formerly 7 FAM 1130. The FAM’s guidance on acquisition of citizenship was recently renumbered as of July 16, 2018.
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section 1401(g) to apply to children born in wedlock to a U.S. citizen parent and an alien parent); The FAM defines “in wedlock” as “birth during the marriage of the biological parents to each other.” 8 FAM 304.1-2(a). The FAM goes on to state: “If a married woman and someone other than her spouse have a biological child together, that child is considered to have been born out of wedlock. The same is true for a child born to a married man and a person other than his spouse.” 8 FAM 304.1-2(e). The FAM notes that “[c]hildren born in wedlock are generally presumed to be the issue of that marriage. This presumption is not determinative in citizenship cases, however, because an actual biological relationship to a U.S. citizen parent is required. If doubt arises that the U.S. citizen ‘parent’ is biologically related to the child, the consular officer is expected to investigate carefully.” 8 FAM 301.4-1(D)(1)(d); see also id. § 301.4-1(D)(1)(a) (“It is not enough that the child is presumed to be the issue of the parents’ marriage by the laws of the jurisdiction where the child was born. Absent a blood relationship between the child and the parent on whose citizenship the child's own claim is based, U.S. citizenship is not acquired.”). Circumstances in which such a doubt may arise include where “[t]he child was born through surrogacy or other forms of assisted reproductive technology.” 8 FAM 301.4-1(D)(1)(d)(5); see also 8 FAM 304.3-2 (“A child born abroad to a surrogate, whose genetic parents are a U.S. citizen mother and anonymous sperm donor, is considered for citizenship purposes to be a person born out of wedlock to a U.S. citizen mother … regardless of whether the woman is married and regardless of whether her spouse is the legal parent of the child at the time of birth.”) (emphasis added).
The FAM interprets 8 U.S.C. § 1409 to apply to children whose biological parents are not married to each other. 8 FAM 102.01. A child may acquire U.S. citizenship at birth from his legal mother, pursuant to section 1409, if the child has a biological relationship with her. See 8 U.S.C. § 1409(c). The FAM recognizes a “biological relationship” between a child and another may include either a genetic parental relationship or a legal, gestational relationship. 8 FAM 301.41(D)(1)(c), and requires a preponderance of the evidence to establish proof of a biological relationship between child and U.S. citizen mother, 8 FAM 301.4-1(D)(1)(b)(2).
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FACTUAL BACKGROUND The following allegations in the Complaint are accepted as true for the purposes of this motion to dismiss. Plaintiff Allison Blixt is a U.S. citizen. Compl. ¶ 1, ECF No. 1. She is married to Stefania Zaccari, an Italian citizen, Compl. ¶ 1. Zaccari, using the sperm of an anonymous donor, conceived Lucas Zaccari-Blixt and carried him to term, see Compl. ¶ 49, during Allison’s marriage to Stefania, Compl. ¶ 1. Lucas was born in Lambeth, a borough in London, England. Compl. ¶ 1; Compl. Ex. C at 1. Allison is listed on Lucas’s birth certificate as “parent.” Compl. Ex. C. Allison does not allege that she has a biological relationship to Lucas. Allison and Stefania went to the U.S. Embassy in London to apply for a Consular Report of Birth Aboard (“CRBA”) and a U.S. passport for Lucas. Compl. ¶ 53. Their applications on behalf of Lucas were denied. Compl. ¶ 56. The Department of State’s denial letter stated that Lucas’s application for a CRBA was denied under Section 309(c) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1409(c), because “[i]t has been determined that there is not a biological relationship . . . between the U.S. citizen mother and child.” See Compl. ¶ 57; see also Compl. Ex. D. Specifically, Plaintiffs were informed that in addition to a legal relationship, either a genetic parental or gestational relationship needed to exist between Allison and Lucas for the applications to be approved. See Compl. Ex. D; see also Compl. ¶¶ 55, 57. Plaintiffs submitted a letter to the Embassy requesting reconsideration of the denial. Compl. ¶ 60. In November 2017, the Embassy affirmed its decision. Compl. ¶ 61; see also Compl. Ex. E. The Embassy noted that “Lucas may be able to pursue other paths to citizenship” and referred Plaintiffs, inter alia, to the procedures under 8 U.S.C. § 1503. Compl. Ex. E. Allison filed suit on January 22, 2018, in the District of Columbia, on behalf of herself and Lucas, against the Department and the Secretary of State, in his official capacity. Plaintiffs purport to raise three claims. ECF No. 1. Defendants now move to dismiss.
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LEGAL STANDARDS To survive a motion to dismiss under Rule 12(b)(1), a plaintiff must establish the Court’s jurisdiction through sufficient allegations. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). When considering such a motion, the Court must accept all well-pleaded allegations as true. See Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011). The Court need not, however, accept inferences that are unsupported by facts alleged in the complaint or that amount to mere legal conclusions. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In evaluating subject-matter jurisdiction, the court may, when necessary, look beyond the complaint to “undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). To survive a motion to dismiss under Rule 12(b)(6), a plaintiff’s complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “plausibility” standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). While the Court accepts well-pleaded factual allegations as true, “mere conclusory statements” and “legal conclusion[s] couched as . . . factual allegation[s]” are “disentitle[d] . . . to th[is] presumption of truth.” Id. at 678, 681 (citation omitted). Although the Court generally may not rely on material outside the pleadings under Rule 12(b)(6), it may consider materials incorporated into the complaint by reference, as well as judicially noticeable materials, without converting the motion into one for summary judgment. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).
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ANALYSIS A. Plaintiffs lack standing to challenge Defendants’ application of 8 U.S.C. § 1409 instead
of 8 U.S.C. § 1401 to Lucas’s applications. In their prayer for relief, Plaintiffs seek (1) a declaration that Defendants unconstitutionally and in violation of the INA classify children of same-sex-married couples to be “born out of wedlock” and thus eligible for citizenship at birth under § 1409 rather than § 1401, if at all; (2) an injunction enjoining Defendants from continuing this allegedly infirm approach, and (3) a declaration “declar[ing] Lucas Alexander Zaccari-Blixt a U.S. citizen at birth.” Compl. at 24. To the extent that Plaintiffs challenge Defendants’ denial of their CRBA and U.S. passport applications because Defendants applied 8 U.S.C. § 1409 instead of 8 U.S.C. § 1401(g) to Lucas’ applications, see, e.g., Compl. ¶¶ 3–6, Plaintiffs fail to establish that it is “likely, as opposed to merely speculative, that their injury will be redressed by a favorable decision.” Defenders of Wildlife, 504 U.S. at 561. In assessing the redressability prong of the standing analysis, “a court must ask ‘whether a plaintiff’s injury would be likely to be redressed if the requested relief were granted.’” Miller v. Christopher, 96 F.3d 1467, 1470 (D.C. Cir. 1996), aff’d sub nom. Miller v. Albright, 523 U.S. 420 (1998) (quoting In re Thornburgh, 869 F.2d 1503, 1511 (D.C. Cir. 1989)). Plaintiffs here do not here challenge the constitutionality of the INA, such that the Court could potentially redress their injury through interpretation of the statute. See Miller, 96 F.3d at 1470. They challenge Defendants’ actions—actions which they allege served to deny Lucas birthright citizenship. Specifically, the relief Plaintiffs seek would require Defendants to “classify” Lucas as a child born to “parents” under section 1401(g), presumably in connection with adjudicating Lucas’s CRBA and U.S. passport applications. See, e.g., Compl. at 24, Prayer for Relief § i; id. § iii Plaintiffs’ requested relief necessarily assumes that by requiring Defendants to “classify,” or adjudicate, Lucas’s CRBA application under section 1401(g), Defendants would be compelled to approve the application. See Compl. ¶ 63 (“Because Lucas is not a child born out of wedlock, his citizenship status is governed by Section 301(g). Lucas clearly satisfies the criteria for U.S.
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citizenship at birth under Section 301(g).”); see also id. ¶¶ 62–64. However, a Court order requiring the State Department to adjudicate Lucas’s CRBA application under section 1401(g) would not redress their purported injuries. As the FAM makes clear, the State Department would have denied Lucas’s applications even if considered under 8 U.S.C. § 1401(g). That is because, regardless of whether a child is considered to be born in wedlock for the purposes of section 1401(g), “at least one biological parent must have been a U.S. citizen when the child was born” for the child to acquire U.S. citizenship despite being born outside of the country. 8 FAM 301.41(B)(1); see also 8 U.S.C. § 1401(g) (stating that an individual is a U.S. citizen if she is “a person born outside the geographical limits of the United States . . . of parents one of whom is an alien, and the other a citizen of the United States” and fulfills the other requirements of the provision) (emphasis added). The FAM notes that while “[c]hildren born in wedlock are generally presumed to be the issue of that marriage,” that presumption is overcome when, as here, “an actual biological relationship to a U.S. citizen parent” is lacking. 8 FAM 301.41(D)(1)(d).
Thus, Plaintiffs’ requests for a declaration that Lucas is a U.S. citizen and that Defendants’ purported “policy of classifying the children of same-sex married couples as ‘children born out of wedlock,’” and for a permanent injunction barring Defendants from “denying the children of same-sex married couples the right to acquire citizenship at birth pursuant to Section 301(g)” on the basis that they are born out of wedlock” would not redress their asserted injuries flowing from the denial of Lucas’s CRBA and U.S. passport applications, because the Department would have denied the applications even if Allison and Stefania had been classified as born “in wedlock” for the purposes of 8 U.S.C. § 1401(g). Plaintiffs therefore lack standing to seek such relief.8 See Young v. U.S. Dep’t of Labor, 2018 WL 3941948 at *5 (D.D.C. Aug. 16, 2018)
8 Plaintiffs’ request for relief under the section 706(2) of the APA would also fail to redress their injuries because none of the relief they request is available under that provision. See infra.
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(Redressability is not satisfied where the plaintiffs’ “requested remedies would lead to precisely the same result” in the underlying administrative adjudication). B. The Complaint fails to state a claim under either the Declaratory Judgment Act or the
Constitution. Purporting to rely on the Declaratory Judgment Act for a cause of action, Counts I and II of the Complaint challenge Defendants’ actions as violating their equal protection and due process rights. Compl. ¶¶ 73–80, 81–89. But the Declaratory Judgment Act does not itself provide a cause of action, and plaintiffs do not state valid constitutional claims in any event. 1. The Declaratory Judgment Act does not provide a cause of action. The Supreme Court has interpreted the Declaratory Judgment Act (“DJA”) as “procedural only,” Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950) (quoting Aetna Life Ins. Co. of Hartford v. Haworth, 300 U.S. 227, 240 (1937)), because it “presupposes the existence of a judicially remediable right,” Schilling v. Rogers, 363 U.S. 666, 677 (1960). The procedural device of the DJA provides courts with discretion to fashion a particular remedy, see Pub. Affairs Assocs., Inc. v. Rickover, 369 U.S. 111 (1962); Davis v. Bd. of Parole of Dept. of Justice, 306 F.2d 801 (D.C. Cir. 1962), but it does not provide a cause of action. Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011); see also Intelsat USA Sales Corp. v. Juch-Tech, Inc., 935 F. Supp. 2d 101, 120 (D.D.C. 2013) (“A count for a declaratory judgment is not cognizable as a separate cause of action, but is more properly included in the[ ] prayer for relief.”). The Court should dismiss Plaintiffs’ constitutional claims (Counts I and II) on this basis alone. 2. Plaintiffs do not state an Equal Protection claim because in all cases,
regardless of the sex or sexual orientation of the U.S. citizen parent, Defendants require both a legal relationship and a biological relationship for a child to acquire citizenship from that parent. Plaintiffs’ constitutional claims fare no better on the merits.9 With respect to their equal protection claims, Plaintiffs have failed to plausibly allege that the State Department’s
9 The Complaint relies on the DJA for the cause of action for Plaintiffs’ constitutional claims. See Comp. ¶¶ 73–80, 81–89. The DJA does not provide a valid cause of action, as discussed above.
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interpretation of provisions of the INA constitutes intentional discrimination against a protected class.
The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o state shall … deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., amend. XIV, § 1. Although this clause expressly applies only to the States, the Supreme Court has found that its protections are encompassed by the Due Process Clause of the Fifth Amendment, and are therefore applicable to the federal government. Bolling v. Sharpe, 347 U.S. 497 (1954). The Equal Protection component of the Fifth Amendment’s Due Process Clause “protects against the government’s treating individuals differently from another similarly situated individual or group.” Martin v. U.S. Marshals Serv., 674 F. Supp. 2d 122, 126 (D.D.C. 2009) (Sullivan, J.) (citing Women Prisoners of the D.C. Dep’t of Corr. v. District of Columbia, 93 F.3d 910, 924 (D.C. Cir. 1996)). To advance an Equal Protection claim, a plaintiff must assert facts that support the allegation that the government subjected her to disparate treatment by virtue of purposeful or intentional discrimination. See, e,g., Stewart v. Gaines, 370 F. Supp. 2d 293, 296 n.2 (D.D.C. 2005) (Sullivan, J.).
Here, Plaintiffs seek a declaration that Defendants have violated the Due Process Clause’s guarantee of Equal Protection by “excluding the children of same-sex married couples from qualifying for citizenship at birth as children born in wedlock outside the United States.” Compl. ¶ 88. But their Equal Protection claim rests on “naked assertions,” see Iqbal, 556 U.S. at 678, “inferences … unsupported by the facts set out in the complaint,” see Browning v. Clinton, 292 F.3d 235, 242, 352 (D.C. Cir. 2002), and “legal conclusions cast in the form of factual allegations,” see id. For example, Plaintiffs assert that the Department of State “has construed [the class of children born ‘in wedlock’] to consist exclusively of children conceived and carried by women who are married to men,” Compl. ¶ 67 (emphasis added), “denying the children of
Nor can Plaintiffs rely here on the APA for a cause of action and waiver of sovereign immunity; as discussed further below, Plaintiffs’ APA claim should be dismissed for failure to state a claim.
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same-sex married couples access to citizenship at birth pursuant to Section 301 of the INA based on the sex and/or sexual orientation of the child’s citizen-parent,” id. ¶ 78. These threadbare legal allegations are insufficient to state an equal protection violation. The FAM explicitly recognizes that children born abroad to a married same-sex female couple can be “born in wedlock” for INA § 301 (8 U.S.C. § 1401) purposes. Where one woman is a U.S. citizen and the other woman is an alien, the child can acquire U.S. citizenship at if the U.S.-citizen wife is either “the genetic mother (the woman whose egg was used in conception) or the gestational mother (the woman who carried and delivered the baby),” so long as the law of the country where she resides also recognizes her as a legal parent.10 8 FAM 301.4-1(D)(1)(c). Where both women are U.S. citizens, and one is the legal, gestational mother and the other is the genetic mother of the child, the Department of State adjudicates the child’s citizenship claim under INA 301(c). 8 FAM 304.31(b).
Plaintiffs fail to allege any set of facts to support a claim that the State Department’s interpretation of the INA reflects invidious discrimination. Discriminatory intent “implies more than intent as volition or intent as awareness of consequences.” See Personnel Adm’r v. Feeney, 442 U.S. 256, 279 (1979). Instead, it requires “that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of’ the law’s differential treatment of a particular class of persons.” Id.; see also Vacco v. Quill, 521 U.S. 793, 803 (1997) (holding that “[t]he law has long used actors’ intent or purpose to distinguish between two acts that may have the same result.”). Accordingly, a discriminatory effect against a group or class does not run afoul of the Constitutional unless it is also an intend consequence of the government. Feeney, 442 U.S. at 279.
10 It is not enough for a U.S. citizen to serve as a surrogate—i.e., a gestational mother lacking status as the legal parent of the child. A “surrogate’s citizenship is irrelevant to the child’s citizenship analysis,” 8 FAM 304.3-2(a), and a child may not acquire citizenship through a surrogate, see id.
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Plaintiffs do not even attempt to suggest that the State Department’s interpretation of the INA as reflected in the FAM evidences purposeful discrimination. Indeed, it is beyond dispute that the Department’s interpretation of the INA as reflected in the FAM is facially neutral, and does not even reference sex or sexual orientation. Under these circumstances, Plaintiffs have failed to allege intentional discrimination sufficient to establish an equal protection claim.
The Department requires a child claiming derivative citizenship at birth to establish both a legal relationship and a biological connection with a U.S. citizen parent in all cases,11 regardless of the sex or sexual orientation of the U.S. citizen parent. As the FAM explains:
The laws on acquisition of U.S. citizenship through a parent have always contemplated the existence of a blood relationship between the child and the parent(s) through whom citizenship is claimed. It is not enough that the child is presumed to be the issue of the parents’ marriage by the laws of the jurisdiction where the child was born. Absent a blood relationship between the child and the parent on whose citizenship the child's own claim is based, U.S. citizenship is not acquired. The burden of proving a claim to U.S. citizenship, including blood relationship and legal relationship, where applicable, is on the person making such claim. 8 FAM 301.4-1(D)(1). While it is true that a child born during a marriage may generally be “presumed” to be the issue of that marriage, see id.; see also Compl. ¶ 24, the Department of State considers such presumption insufficient for determining citizenship regardless of the sex or sexual identity of the married couple. 8 FAM 301.4-1(D)(1). The Department of State requires U.S.-citizen parents to prove a biological relationship in assisted reproductive technology cases.12 8 FAM 304.3-4; see also id. ¶ a (“In most cases involving assisted reproductive
11 The Supreme Court has explicitly recognized the important governmental interest “of assuring that a biological parent-child relationship exists.” Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 62 (2001). 12 The Department requires the same evidence of biological parentage of opposite sex married couples who used ART as it does of same sex married couples who used ART. See 8 FAM 304.34; see also id. at 304.3-1, 304.3-2, 304.3-3.
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technology there is no shortage of documentation, and consular officers are free, as in any case, to ask for appropriate supporting documentation that fits the circumstances of the case.”).
Plaintiffs highlight a reference to 8 U.S.C. § 1409 in the Embassy’s letter dated May 24, 2017.13 Compl. ¶ 57. That provision applies to “Children born out of wedlock.” See 8 U.S.C. § 1409. Plaintiffs question why the Department considered § 1409 applicable to their situation rather than 8 U.S.C. § 1401, which generally covers children born to married parents. See Compl. ¶¶ 57, 58. Plaintiffs infer that the Department “refus[ed] to recognize the validity of Allison’s and Stefania’s marriage.” Id. ¶ 5. The Court should not accept as true this “legal conclusion couched as a factual allegation.” See Iqbal, 556 U.S. at 678. Nor do Plaintiffs’ wellpleaded factual allegations support such inference. See id. Plaintiffs conflate recognition of marriage with determination of § 1401 applicability. The FAM makes clear that persons in legally-valid and recognized marriages may still have a child considered “born out of wedlock” for § 1409 purposes. See, e.g., 8 FAM 304.3-2 (“A child born abroad to a surrogate, whose genetic parents are a U.S. citizen mother and anonymous sperm donor, is considered for citizenship purposes to be a person born out of wedlock to a U.S. citizen mother, with a citizenship claim adjudicated under INA 309(c). This is the case regardless of whether the woman is married and regardless of whether her spouse is the legal parent of the child at the time of birth.”) The Department applies this policy equally to same-sex marriages and opposite sex marriages. See id.; see also 7 FAM 1454 (“In general, marriages which are legally performed and valid abroad are also legally valid in the United States. Inquiries regarding the validity of a marriage abroad should be directed to the attorney general of the state in the United States where the parties to the marriage live”).
Equally fatal to Plaintiffs’ equal protection claim is the inability to identify any similarly situated protected group that the Department treated differently. The Complaint describes Allison
13 The Embassy’s letter identified three “requirements relevant” to Plaintiffs’ circumstances, including that “[t]he U.S. citizen parent was able to evidence that they met the physical presence requirements of Section 309(c) of the INA.” See Compl. Ex. D at 1.
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and Stefania’s experience applying for a CRBA and passport for Lucas, see, e.g., Compl. ¶¶ 53– 57, but it lacks any factual allegations that similarly situated persons were treated differently. For example, Plaintiffs do not allege that a similarly situated heterosexual married couple who used assistive reproductive technology to conceive a child would have been treated differently by the Department. Indeed, Plaintiffs concede the opposite is true, and acknowledge that “the Department of State’s policy may in theory apply to marriages of spouses of opposite sexes.” Compl. ¶ 71.
Because the Complaint lacks well-pleaded factual allegations that Plaintiffs have been treated differently than other similarly situated persons, the Court need not reach the question of whether the Departments’ actions in denying a CRBA and U.S. passport to Lucas survive rational basis review, see, e.g., Engquist v. Oregon Dept. of Agr., 553 U.S. 591, 602 (2008); Stewart, 370 F. Supp. 2d at 296 n.2 (D.D.C. 2005), or whether a lower standard of review applies, see Fiallo v. Bell, 430 U.S. 787, 794–95 (1977).14
Because Plaintiffs fail as a matter of law to allege a plausible equal protection claim, this claim should be dismissed.
14 In Fiallo, the Supreme Court considered equal protection claims brought by biological fathers and their illegitimate offspring who sought “a special immigration preference by virtue of a relationship to a citizen or resident alien child or parent” under provisions of the INA then in force. Fiallo, 430 U.S. at 790. The Court observed that “there are widely varying relationships and degrees of kinship, and it is appropriate for Congress to consider not only the nature of these relationships but also problems of identification, administration, and the potential for fraud,” and reasoned that Congress—not the courts—are tasked with “the inevitable process of ‘line drawing’” with regard to immigration and nationality matters. Id.; see also id. at 796. The Court applied a standard of review lower than the “rational basis” standard, observing that “our cases do make clear that despite the impact of … classifications on the interests of those already within our borders, congressional determinations such as this one are subject only to limited judicial review.” Id.
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3. Plaintiffs’ substantive due process claim fails because they fail to identify a fundamental right that Defendants have purportedly infringed upon or establish that Defendants’ actions fail rational basis review.
The Court should likewise dismiss Plaintiffs’ due process claim. Plaintiffs assert that Defendants are violating their substantive due process rights “by enforcing a policy that excludes U.S. citizens in same-sex marriages from conferring citizenship pursuant to [8 U.S.C. § 1401], while restricting access to citizenship under that provision to the children of opposite-sex married couples.” Compl. ¶ 77; see also id. ¶¶ 74–76. Because Plaintiffs fail to identify a fundamental right that Defendants have infringed upon, their substantive due process claim must be evaluated under rational basis review. Defendants’ actions easily survive such review.
The Supreme Court has established that the Fifth Amendment guarantee of due process includes “a substantive component, which forbids the government from infringing certain fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 301–02 (1993). But the Court has “always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended,” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). The Court has observed that the protections of substantive due process are limited to those rights that rank as “fundamental”—that is, both “objectively, deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (citation omitted). The Supreme Court has also made clear that a plaintiff must provide “a ‘careful description’ of the asserted fundamental liberty interest” when raising such a claim. Chavez v. Martinez, 538 U.S. 760, 775–76 (2003). Where the asserted interest is not a fundamental right, the claim will be “subject only to rational basis scrutiny.” Abigail All. for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695, 712 (D.C. Cir. 2009).
Here, in the case of a family that has made the choice to have children and to live outside the United States, Plaintiffs’ asserted “rights to acquire and confer citizenship at birth pursuant to
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INA Section 301,” Compl. ¶ 77, is too broad to comply with Glucksberg. See also Hutchins v. Dist. of Columbia, 188 F.3d 531, 538 (D.C. Cir. 1999). Under the Department’s interpretation of section 1401, Lucas could have acquired U.S. citizenship through Allison had she been his genetic or gestational and legal parent—just as his brother acquired U.S. citizenship. 8 FAM 301.4-1(D)(1)(c) (recognizing that genetic mothers and gestational mothers who are also legal parents of a child both possess a biological relationship with the child, such that the child can acquire U.S. citizenship at birth); 8 FAM 304.3-1(b) (explicitly noting that where both women are U.S. citizens and married to each other, and one is the gestational and legal mother and the other is the genetic mother of a child, the Department of State adjudicates the child’s citizenship claim under INA § 301(c)); see also Compl. ¶ 57. Going forward, the family retains the option of moving to reside in the United States, where Lucas could pursue naturalization; or, should Stefania as his biological parent naturalize as a U.S. citizen, where Lucas would automatically acquire U.S. citizenship pursuant to the Child Citizenship Act of 2000, provided he was under 18, remained in the legal and physical custody of his citizen parent, and had been admitted for lawful permanent residence. 8 U.S.C. § 1431, INA § 320. That Stefania and Lucas, as noncitizens, would need to apply for family-based immigrant visas under this scenario, in order to accompany Allison and Lucas’s brother, does not “impos[e] … indignities” or unduly “restrict[] a family’s freedom to live as a family—together,” Compl. ¶ 7.
Thus, Plaintiffs’ asserted interest is more carefully described as an individual’s right to successfully apply for a CRBA or a U.S. passport on behalf of a child who is born abroad and is not the individual’s biological child. This asserted right—which Plaintiffs do not even characterize as a liberty or property interest—cannot be considered fundamental under substantive due process jurisprudence because there is no such right deeply rooted in this Nation’s history, tradition, and practices. As a threshold matter, the extension of citizenship to foreign-born children is not a constitutionally enshrined right for either the U.S. citizen or the child seeking to acquire citizenship; rather, it is a right granted by Congress. Rogers, 401 U.S. at 827; see also Miller v. Albright, 523 U.S. 420, 453 (1998) (Scalia, J., concurring) (“Petitioner,
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having been born outside the territory of the United States, is an alien as far as the Constitution is concerned, and can only become a citizen by being naturalized, either by treaty, . . . or by authority of Congress.”) (internal citation and quotation marks omitted); see also Icaza v. Schultz, 656 F. Supp. 819, 823 (D.D.C. 1987). Further, the Supreme Court has underscored the importance of a biological connection between the child seeking to acquire citizenship and the U.S. citizen seeking to confer citizenship. See, e.g., Miller v. Albright, 523 U.S. at 438 (“There is no doubt that ensuring reliable proof of a biological relationship between the potential citizen and its citizen parent is an important governmental objective.”) (plurality op.); Nguyen, 533 U.S. at 62 (acknowledging “the importance of assuring that a biological parent-child relationship exists” for the purposes of a U.S. citizen father conferring citizenship on a child born abroad). Therefore, Plaintiffs fail to establish a fundamental right at issue in this case.
Because Plaintiffs’ asserted right is not fundamental, their claim “is subject only to rational basis scrutiny.” Abigail All., 495 F.3d at 712. This claim can be disposed of on a motion to dismiss, because Plaintiffs’ “pleadings themselves make [the court’s] rational basis determination straightforward.” Id. n.20. Simply put, the Complaint is bereft of allegations that Defendants’ interpretation of section 1409 to require a biological relationship between the U.S. citizen and child for the child to receive a CRBA or a U.S. passport despite being born abroad is irrational.15
Plaintiffs contend that there is no rational basis to limit the application of section 1401 to the children of heterosexual couples. See Compl. ¶¶ 8–9, 69, 78. But these allegations are misplaced because Plaintiffs fail to allege that Defendants limit the application of section 1401 to the children of heterosexual couples. Browning, 292 F.3d 235, at 242. As discussed above, Plaintiffs acknowledge that “the Department of State’s policy may in theory apply to marriages between spouses of opposite sexes,” Compl. ¶ 71, and do not allege that this “theory” is not applied in practice. Moreover, the FAM contains no language that treats same-sex couples
15 Nor could they so allege. As explained infra, Defendants’ interpretations of sections 1401 and 1409 are reasonable as a matter of law.
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differently from opposite-sex married couples in requiring a biological connection between the child seeking to acquire U.S. citizenship and the asserted U.S. citizen parent under 8 U.S.C. § 1401. See, e.g., 8 FAM 301.4 (passim). In particular, as noted above, consular officers are expected to investigate carefully to establish a biological relationship when “[t]he child was born through surrogacy or other forms of assisted reproductive technology,” irrespective of the sex or sexual orientation of the legal parents of the child. 8 FAM 301.4-1(D)(1)(d)(5).
Therefore, Plaintiffs fail to sufficiently allege that “the government’s restrictions bear no rational relationship to a legitimate state interest,” Abigail All., 495 F.3d at 712, and Count I must be dismissed on that basis. C. Plaintiffs fail to state a valid Administrative Procedure Act claim.
1. Plaintiffs’ APA claim is barred because Plaintiffs have an adequate remedy at law.
Plaintiffs bring a claim under the Section 706(2)(A) of the APA, asserting that Defendants’ denial of Lucas’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—“lacks a rational basis, is arbitrary, and is contrary to law.” See Compl. ¶¶ 94, 97. APA review, however, is not available for Plaintiffs. There exists an “adequate remedy at law,” see 5 U.S.C. § 704, precluding Plaintiffs’ APA claim: Lucas can challenge the State Department’s denials of the CRBA application filed on his behalf under 8 U.S.C. § 1503, which provides a path by which Lucas may assert a claim that he is a U.S. national.
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). The D.C. Circuit “has held that the alternative remedy need not provide relief identical to relief under the APA, so long as it offers relief of the ‘same genre.’” Id. (quoting El Rio Santa Cruz
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Neighborhood Health Ctr. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265, 1272 (D.C. Cir. 2005)). “Relief will be deemed adequate ‘where a statute affords an opportunity for de novo district-court review’ of the agency action. Garcia, 563 F.3d at 522–23 (quoting El Rio Santa Cruz, 396 F.3d at 1270). This is because “Congress did not intend to permit a litigant challenging an administrative denial . . . to utilize simultaneously both [the review provision] and the APA.” El Rio Santa Cruz, 396 F.3d at 1270 (quoting Envtl. Def. Fund v. Reilly, 909 F.2d 1497, 1501 (D.C. Cir. 1990)) (omission and alteration in original). An alternative remedy can, however, be inadequate if it offers only “doubtful and limited relief.” See Bowen v. Massachusetts, 487 U.S. 879, 901 (1988).
Here, Plaintiffs can and should utilize the provisions Congress specifically made available by 8 U.S.C. § 1503 to 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.” Courts have found that the Department’s denial of a CRBA application constitutes the denial of a “right or privilege” that allows the applicant to avail him or herself of remedies under Section 1503. See L. Xia, 865 F.3d at 655. Review under Section 1503 is generally available regardless of whether the individual is within the United States, albeit under different paths. If the aggrieved individual “within the United States,” § 1503(a) provides a for de novo review over the issue of whether an individual is a U.S. national. Maldonado-Sanchez v. Schultz, 706 F. Supp. 54, 58 (D.D.C. 1988); 8 U.S.C. § 1503(a); see also Edwards v. Bryson, 578 Fed. App’x 81, 83 (3d Cir. 2014). “[C]ourts have repeatedly dismissed APA claims challenging the denial of a passport application or a passport revocation on grounds that the holder is not a U.S. national, reasoning that . . . a judicial declaration of citizenship and entitlement to a passport may be directly sought through 8 U.S.C. § 1503(a).” Alsaidi v. U.S. Dep't of State, 292 F. Supp. 3d 320, 326 (D.D.C. 2018) (quoting Villarreal v. Horn, 203 F.Supp.3d 765, 773 (S.D. Tex. 2016)).
If the individual is not within the United States, additional steps must be taken to enter the United States to pursue declaratory judgment under § 1503(a). Section 1503(b) provides that the individual may apply to U.S. diplomatic or consular officer in the country in which she resides
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for a “certificate of identity,” which can be approved on a showing that it was “made in good faith and has a substantial basis.” 8 U.S.C. § 1503(b). If the officer decides not to issue a certificate of identity, the individual may appeal that decision to the Secretary of State, id., and seek judicial review if the Secretary affirms the denial, see 5 U.S.C. § 706(2). If the officer issues the certificate, she may then “apply for admission to the United States at a port of entry” on the basis of the certificate. 8 U.S.C. § 1503(c). If the Department of Homeland Security determines that the individual “is not entitled to admission,” she may seek review of that decision by filing a petition for a writ of habeas corpus. 8 U.S.C. § 1503(c); see also Hinojosa v. Horn, 896 F.3d 305, 312 (5th Cir. 2018). If she is granted admission, she may then avail herself of section 1503(a)’s procedures to seek a declaration that she is a U.S. national.
Because section 1503 provides Plaintiffs with “an independent cause of action or an alternative review procedure” over Lucas’s status as a U.S. national, El Rio Santa Cruz, 396 F.3d at 1270, it is an adequate alternative remedy to their APA claim. 16 Indeed, the Fifth Circuit has recently affirmed that section 1503(b) and (c)’s avenues are an adequate alternative to APA review of an agency determination that an individual is not a U.S. citizen. Hinojosa, 896 F.3d
16 The D.C. Circuit’s decision in Xia does not conflict with the proposition that APA review is unavailable when an individual seeks to challenge an agency’s denial of a right or privilege of citizenship on the ground that the individual is not a U.S. citizen. Although the Xia court allowed the plaintiffs’ APA claim to proceed alongside plaintiffs’ § 1503 claim, it did so in the context of an APA claim asserting that plaintiffs’ “passport revocation was allegedly arbitrary because putatively based on an event that had yet to occur, and allegedly contrary to law because accomplished without the requisite administrative hearing.” L. Xia, 865 F.3d at 657. This claim did not substantively challenge the agency’s determination that plaintiffs were not U.S. citizens but rather challenged the procedures under which the revocation took place. See id. Further, the Xia court did not specifically decide whether an adequate remedy at law existed so as to preclude plaintiffs’ APA claims; it simply rejected the district court’s conclusion that plaintiffs had failed to exhaust administrative remedies and remanded the claim for further consideration. Id.
Chacoty is also not to the contrary. Chacoty v. Tillerson, 285 F. Supp. 3d 293, 298 (D.D.C. 2018). While Chacoty concluded that section 1503 did not forbid relief under the APA so as to preclude the APA’s waiver of sovereign immunity, it specifically did not decide whether section 1503 furnished an adequate remedy at law so as to merit dismissal for failure to state a claim. Chacoty, 285 F. Supp. 3d at 304.
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305. As the court noted, section 1503 provides a “direct and guaranteed path to judicial review” under section 1503(b) and (c). “Moreover, the provision comprises ‘both agency obligations and a mechanism for judicial enforcement,’” id. at 312 (quoting Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 846 F.3d 1235, 1245 (D.C. Cir. 2017)), which suggests that the statute “strikes the balance between statutory duties and judicial enforcement that Congress desired,” Citizens for Responsibility, 846 F.3d at 1245.
The court further addressed the arguments that section 1503(b) and (c)’s procedures provide a doubtful or “treacherous” path to relief. Hinojosa, 896 F.3d at 314; see also Bowen, 487 U.S. at 901. As to the doubtfulness of relief, the court noted that the only way that plaintiffs who are currently residing outside of the country could not eventually obtain review under section 1503(a) is if the Secretary of State denied their certificates of identity, but this was not troubling since at that point, plaintiffs could access the APA’s review procedures.17 Hinojosa, 896 F.3d. at 312. And as to the “treacherousness” of seeking relief, the court suggested that where plaintiffs are seeking entry to the country on the basis of a claim of U.S. citizenship and no allegations of specific hardship in gaining entry into the country, such as the possibility of being arrested or jailed, were provided, there was no reason to second-guess Congress’s particular procedures for litigating a claim seeking review of a denial of a right or privilege of U.S. citizenship. Id. at 312–13. Therefore, the Fifth Circuit concluded that “[p]ermitting a cause of action under the APA would provide a duplicative remedy, authorizing an end-run around that process.” Hinojosa, 896 F.3d at 312. The Fifth Circuit’s reasoning is persuasive, and should be adopted here.
17 If the Department of Homeland Security were to deny application for admission at the border of an individual who has been issued a certificate of identity under section 1503(b), judicial review of that decision is available. See 8 U.S.C. § 1503(c) (providing that a “final determination … that any such person is not entitled to admission to the United States shall be subject to review by any court of competent jurisdiction in habeas corpus proceedings and not otherwise”). Review of this decision would also be available in removal proceedings, should those circumstances ever arise. See 8 U.S.C. § 1229a.
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That Plaintiffs may seek injunctive and declaratory relief under the APA but can obtain declaratory relief only under section 1503(a) does not render section 1503’s remedies inadequate here. Plaintiffs seek (1) a declaration that the Department of State’s alleged policy of “classifying the children of same-sex married couples as ‘children born out of wedlock,’ and its consequent refusal to recognize Lucas’ citizenship status on that basis,” violates the INA and the Constitution; (2) a declaration that Lucas is a U.S. citizen at birth; and (3) a permanent injunction enjoining Defendants from “continuing to discriminate against Plaintiffs by classifying 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.” Compl. at 24, Prayer for Relief. Section 706(2)(A) of the APA, meanwhile, allows the courts to “hold unlawful and set aside agency action” that does not comport with the applicable laws and procedures. 5 U.S.C. § 706(2)(A). Section 1503, for its part, accords an individual “judgment declaring him to be a national of the United States,” 8 U.S.C. § 1503(a), and allows an individual outside of the country to apply for a certificate of identity to travel to a port of entry in the United States to apply for admission, 8 U.S.C. § 1503(b)–(c).
There is “no yawning gap” between the relief that section 1503 affords and that which is available to Plaintiffs under the APA, Citizens for Responsibility, 846 F.3d at 1246. Indeed, all section 706(2)(A) of the APA can provide is an order vacating or remanding the Department’s denials of Lucas’s CRBA and passport applications. See id. These remedies do not encompass a declaration that Lucas is a U.S. citizen, which is Plaintiffs’ second request for relief, see supra. Section 1503 instead provides Plaintiffs with a mechanism to obtain a declaration that Lucas was a citizen at birth. As the Supreme Court has recognized, “the power to make someone a citizen of the United States has not been conferred upon the federal courts.” INS v. Pangilinan, 486 U.S. 875, 883–84 (1988). “Rather, it has been given to them as a specific function to be performed in strict compliance with the terms of an authorizing statute which says that ‘[a] person may be naturalized ... in the manner and under the conditions prescribed in this subchapter, and not otherwise.’” id. at 884 (quoting 8 U.S.C. § 1421(d)). Thus, even if the Court were to find that
24

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Defendants violated the APA by not granting a CRBA or a passport to Lucas, any declaratory or injunctive relief the Court might order under the APA could not grant or guarantee citizenship for Lucas. The Court lacks authority to convey citizenship to specific individuals outside of the procedures required by the INA. See Pangilinan, 486 U.S. at 884; cf. Miller, 96 F.3d at 1470 (reasoning that a plaintiff could not pursue constitutional claim “request[ing] the court to grant her citizenship”).18
And Plaintiffs’ other, sweeping requests for judgment on the Department of State’s policies as a whole and for a permanent, universal injunction are unavailable under the APA and, in any event, must be rejected as improper. First, the APA does not allow Plaintiffs to seek “wholesale improvement of [a] program by court decree.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891 (1990); cf. Arden Wood, Inc. v. U.S. Citizenship & Immigration Servs., 480 F. Supp. 2d 141, 150 (D.D.C. 2007) (concluding that a APA challenge impermissibly sought broad programmatic relief where it went beyond a direct appeal of a single agency decision and instead sought declaratory relief “regarding the correct interpretation and application” of a particular statute and injunctive relief from an “ongoing policy”). Second, it is a black-letter rule that 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) (“The Court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.”). Indeed, section 706(2)’s inability to provide Plaintiffs with any of their requested relief is an independent basis on which to dismiss this claim.
Therefore, Plaintiffs’ APA claims should be dismissed due to section 1503(a)’s adequate alternative review procedures.
18 A federal court can, however, generally declare an individual to be a United States national under 8 U.S.C. § 1503(a), which “provides for judicial review of denial of any ‘right or privilege’ of citizenship.” L. Xia, 865 F.3d at 655 (quoting 8 U.S.C. § 1503(a)). This is why Plaintiffs’ APA claim should be dismissed due to the existence of an adequate remedy at law despite the court’s inability to confer citizenship itself. See supra.
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2. Defendants reasonably interpret the term “parent” in § 1401 as requiring both a biological and a legal relationship.
Even if Plaintiffs could pursue an APA claim, that claim fails as a matter of law because the Department’s interpretation of the Immigration and Nationalization Act is reasonable. See Iqbal, 556 U.S. at 678. Given the foundational principle of jus sanguinis—“right of blood”–-that underlies the American approach to recognizing citizenship of children born abroad to U.S. citizens, Defendants reasonably interpret the Immigration and Nationality Act as requiring both a biological relationship and a legal relationship between parent and child in order for a foreignborn child to acquire U.S. citizenship at birth under § 1401. The Department has taken this position for more than a century, and Congress could have had no other intention. See, e.g., A. Mitchell Palmer, Citizenship - Children Born Abroad out of Wedlock of American Fathers and Alien Mothers, 32 Op. Att’y Gen. 162 (1922); accord Crider v. Ashcroft, 74 F. App’x 729, 730 (9th Cir. 2003) (unpublished) (holding that petitioner did not acquire United States citizenship under former 8 U.S.C. § 1401 because neither of his parents were United States citizens at the time of his birth). Additionally, the Supreme Court has explicitly recognized the important governmental interest “of assuring that a biological parent-child relationship exists.” Nguyen, 533 U.S. at 62.
CONCLUSION
For the foregoing reasons, the Complaint should be dismissed with prejudice.

Dated: September 3, 2018

Respectfully submitted,
JOSEPH D. HUNT Assistant Attorney General
JOSHUA E. GARDNER Assistant Director
/s/ Vinita B. Andrapalliyal VINITA B. ANDRAPALLIYAL Trial Attorney

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Case 1:18-cv-00124-EGS Document 31-1 Filed 09/03/18 Page 35 of 35 LISA ZEIDNER MARCUS Senior Counsel (N.Y. Bar # 4461679) United States Department of Justice Civil Division Federal Programs Branch P.O. Box 883 Washington, DC 20044 Tel: (202) 305-0845 Fax: (202) 616-8470 vinita.b.andrapalliyal@usdoj.gov Counsel for Defendants
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 Case 1:18-cv-00124-EGS Document 36 Filed 03/19/19 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALLISON DAWN BLIXT and L.Z.-B.

:

:

Plaintiffs, :

v.

:

:

The UNITED STATES DEPARTMENT :

OF STATE and MICHAEL R. POMPEO in :

his official capacity as Secretary, U.S.

:

Department of State

:

:

Defendants. :

:

Civ. No. 1:18-cv-00124-EGS
PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Case 1:18-cv-00124-EGS Document 36 Filed 03/19/19 Page 2 of 6

Pursuant to the Court’s February 25, 2019 Order, Plaintiffs respectfully submit this supplemental memorandum of law concerning Dvash-Banks et al. v. Michael R. Pompeo, et al., No. 18-cv-00523-JFW (C.D. Cal. Feb. 21, 2019) (“Dvash-Banks”), and in further opposition to Defendants’ motion to dismiss the Complaint.1 (ECF No. 31.)
PRELIMINARY STATEMENT Dvash-Banks’s central holding is that “Section 301 [of the INA] does not require a person born during their parents’ marriage to demonstrate a biological relationship with both of their married parents.” (Slip Op. at 8.) Under this rule, L.Z.-B.—like the minor plaintiff in Dvash-Banks (“E.J.”)—acquired U.S. citizenship at birth under Section 301. Other than the gender of L.Z.-B.’s parents and their residence outside the U.S., the situation here substantially mirrors Dvash-Banks. L.Z.-B. was born abroad to married parents, one of whom is a U.S. citizen, but not his biological parent. Both of L.Z.-B.’s parents appear on his birth certificate and have acted as his parents from the day that he was born. On similar facts, Dvash-Banks held that E.J. acquired U.S. citizenship at birth, rejecting the State Department’s imposition of an extra-statutory biological requirement under Section 301, as well as the State Department’s reliance on the FAM. As a non-U.S. resident, L.Z.-B. cannot pursue his citizenship claim directly under Section 1503(a), as the plaintiffs did in Dvash-Banks; but this distinction does not require a different citizenship determination here. To the contrary, the APA’s “central purpose” is to provide “a broad spectrum of judicial review of agency action,” El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265, 1270 (D.C. Cir. 2005), precisely when, as here, there is no adequate alternative remedy available to the plaintiff.

1

All capitalized terms used in this memorandum have the same definitions as set forth in

Plaintiffs’ initial memorandum in opposition to Defendants’ motion to dismiss. (ECF No. 32.)

1

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ARGUMENT A. Under Dvash-Banks, L.Z.-B. Acquired U.S. Citizenship At Birth Under Section 301.
Dvash-Banks is the latest in an unbroken line of decisions holding that the INA does not require a child born abroad to married parents, one of whom is a U.S. citizen, to prove a biological tie to a U.S. citizen parent. As every federal court to consider the issue has held, the proper interpretation of Section 301 compels the conclusion that L.Z.-B. acquired U.S. citizenship at birth under Section 301 and that the denial of his applications for a CRBA and U.S. passport was arbitrary, capricious, and unlawful.2
Relying on this consistent line of precedent—Scales v. INS, 232 F.3d 1159 (9th Cir. 2000) and Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005), both of which pre-date the State Department’s denial of L.Z.-B.’s applications, and Jaen v. Sessions, 899 F.3d 182 (2d Cir. 2018)—Dvash-Banks unequivocally rejected the interpretation of Section 301 that Defendants advance here, noting that “the dramatic difference in the language of Section 301 and Section 309 makes it clear that a biological relationship is not required.” (Slip Op. at 9.)3 The court specifically rejected the defendants’ attempt there, as here, to rely upon the FAM to impose a biological relationship requirement that is absent from the INA. (Id. at 8-9.) The court reasoned that “[t]he basis for the State Department’s imposition of a biological requirement is its strained interpretation of the language in Section 301(g)” (id. at 5), as reflected in the FAM, and cited

2

Because E.J. was born abroad to married parents, the court adjudicated his claim to U.S.

citizenship de novo under Section 301, not Section 309. Plaintiffs here similarly allege that the

State Department should have adjudicated L.Z.-B.’s applications under Section 301.

3

This conclusion also undermines Defendants’ theory that Plaintiffs here lack standing

because, even if the State Department were required to adjudicate L.Z.-B.’s CRBA and U.S.

passport applications under Section 301, the State Department still would impose on L.Z.-B. a

biological relationship requirement and reject his application. (ECF No. 31-1 at 9-10.)

Dvash-Banks endorsed and applied prior precedent—Scales, Solis-Espinoza, and Jaen—rejecting

the defendants’ attempt to read any such requirement into Section 301. (Slip Op. at 5, 8-9.)

2

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Scales for the proposition that the FAM “was so divergent from the statutory language as to not

even be appropriately considered ‘an interpretation of § 1401’” (id. at 8-9 (citing Scales, 232 F.3d

at 1165-66)). The Dvash-Banks court applied the same framework for adjudicating E.J.’s

applications as applied in Scales, Solis-Espinoza, and Jaen even though he, like L.Z.-B. here, was

conceived using ART. As the court observed, “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.” (Id. at 9.) Dvash-Banks thus supports the sufficiency of the Complaint and denial of Defendants’ motion.4

B. Unlike in Dvash-Banks, Section 1503 Does Not Provide An Adequate Remedy Here. The ruling in Dvash-Banks that the defendants were entitled to summary judgment

on their APA claim does not support the dismissal of the APA claim here. That determination was

premised solely on the court’s conclusion that the plaintiffs’ separate claim under 8 U.S.C.

§ 1503(a) “offers an adequate alternative remedy to APA review.” (Slip Op. at 7.) Here, as

Defendants concede, Section 1503(a) is not available to Plaintiffs because the Zaccari-Blixt family

does not reside in the U.S. (See ECF No. 31-1 at 21.) As Plaintiffs’ opposition to Defendants’

motion explains, Sections 1503(b) and (c) do not provide an adequate remedy for L.Z.-B. (See

ECF No. 32 at 29-31.) Those provisions were enacted to address persons fraudulently applying at

the border to gain entry into the U.S., see Rusk v. Cort, 369 U.S. 367, 379 (1962), not the

citizenship of children of U.S. citizens residing abroad. If relegated to those provisions, L.Z.-B.,

who recently turned four, and one or both of his parents, would be forced to abandon their home,

4

Dvash-Banks’ holding that Section 1503(a)’s remedies were adequate because “[t]he

injunction sought by Plaintiffs is well beyond that needed to provide Plaintiffs with complete

relief” (Slip Op. at 7), is irrelevant to Defendants’ motion here. At the motion to dismiss stage, the

non-moving party is not required to prove that he or she “can obtain the specific relief demanded

so long as the court can ascertain from the face of the complaint that some relief can be granted.” Doe v. U.S. Dep’t of Justice, 753 F.2d 1092, 1104 (D.C. Cir. 1985) (emphasis in original).

3

Case 1:18-cv-00124-EGS Document 36 Filed 03/19/19 Page 5 of 6

schools, and jobs, and move to the U.S. for an indeterminate time while L.Z.-B.’s applications are adjudicated and any appeals litigated. As the history of this case and Dvash-Banks show, this could be a prolonged and arduous process. Uprooting, and potentially separating, families in this way flatly contradicts the INA’s “inten[t] to keep families together.” (Dvash-Banks, Slip. Op. at 10 (citing Solis-Espinoza, 401 F.3d at 1094)). Under these circumstances, the APA is the proper vehicle for redressing Plaintiffs’ injury.5 Any other conclusion would be inconsistent with Dvash-Banks’s holding that resort to the APA was unnecessary because Section 1503(a) clearly entitled the plaintiffs to their requested relief. It is precisely because Plaintiffs have no similar access to direct relief under the INA that their APA claim is necessary. C. The Complaint Sufficiently Pleads a Due Process Claim.
As described in Plaintiffs’ opposition (ECF No. 32 at 33-38), the Complaint sufficiently pleads that the State Department’s policy, articulated in the FAM, which Dvash-Banks fully rejects, infringes the fundamental right to marry by denying same-sex couples and their children the full constellation of rights and benefits linked to marriage and, further, fails strict scrutiny review. See Pavan v. Smith, 137 S. Ct. 2075, 2076 (2017) (“the Constitution entitles same-sex couples to civil marriage on the same terms and conditions as opposite-sex couples” (internal quotation marks omitted)); see also Miller v. Albright, 523 U.S. 420, 433 (1998) (under the INA, if a married U.S. citizen and a foreign national conceive a child, “citizenship will follow” (emphasis added)). Dvash-Banks, which dismissed as moot the due process claim, after discovery,

5

See Rusk, 369 U.S. at 375 (“[T]he language of [§ 1503(b) and (c)] shows no intention to

provide an exclusive remedy”), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99

(1977)); see also Rafeedie v. INS, 880 F.2d 506, 511 (D.C. Cir. 1989) (holding that Section 1503

does not foreclose claims under the APA); Chacoty v. Tillerson, 285 F. Supp. 3d 293, 303 n.5

(D.D.C. 2018) (holding that Section 1503 “is not an exclusive remedy” and stating that “Cort’s

holding that § 1503 is not an exclusive remedy . . . remains good law” (internal quotation marks

omitted)).

4

Case 1:18-cv-00124-EGS Document 36 Filed 03/19/19 Page 6 of 6

at the summary judgment stage, in view of the relief granted under Section 1503, does not undercut

these allegations. (See ECF No. 1 ¶ 73-80.)

CONCLUSION

For the foregoing reasons and those stated in Plaintiffs’ opposition, Plaintiffs

respectfully request that the Court deny Defendants’ motion to dismiss and award to Plaintiffs

such other and further relief as the Court deems just and proper.

Dated: March 19, 2019  

Respectfully submitted,

/s/ Elizabeth A. Cassady



Elizabeth A. Cassady (D.C. Bar No. 997160) cassadye@sullcrom.com

SULLIVAN & CROMWELL LLP

1700 New York Avenue, Suite 700

Washington, D.C. 20006

Telephone: (202) 956-7500

Facsimile: (202) 293-6330

Theodore Edelman (pro hac vice) edelmant@sullcrom.com Jessica Klein (pro hac vice) kleinj@sullcrom.com Lauren M. Goldsmith (of counsel) goldsmithl@sullcrom.com SULLIVAN & CROMWELL LLP 125 Broad Street New York, New York 10004-2498 Telephone: (212) 558-4000
Facsimile: (212) 558-3588

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

5

 
 Case 1:18-cv-00124-EGS Document 37 Filed 03/19/19 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

ALLISON DAWN BLIXT and LUCAS

)

ALEXANDER ZACCARI-BLIXT,

)

)

Plaintiffs;

)

)

v.

)

)

THE UNITED STATES DEPARTMENT OF STATE )

et al.,

)

)

Defendants.

)

Civ. Action No. 18-124 (EGS)

Supplemental Memorandum in Support of Defendants’ Motion to Dismiss

Case 1:18-cv-00124-EGS Document 37 Filed 03/19/19 Page 2 of 7
INTRODUCTION Defendants submit this supplemental brief in accordance with this Court’s February 25, 2019, Minute Order. That Minute Order referenced the U.S. District Court for the Central District of California’s recent decision in Dvash-Banks v. Pompeo, 18-cv-523-JFW (C.D. Cal.), which adjudicated cross-motions for partial summary judgment, granting the defendants’ motion with respect to the plaintiffs’ Administrative Procedure Act claim, granting plaintiffs’ motion with respect to the plaintiffs’ 8 U.S.C. § 1503 claim, and denying both motions as moot with respect to the plaintiffs’ Declaratory Judgement Act substantive due process claim. In ruling on the Section 1503 claim, the Central District of California court concluded that under Ninth Circuit precedent, Section 301 of the Immigration and Nationality Act (“INA”), 8 U.S.C. §1401, “‘does not require a person born during their [legal] parents’ marriage to demonstrate a biological relationship with both of their married parents.’” Feb. 25 Minute Order (quoting Dvash-Banks v. Pompeo, 2019 WL 911799 at *7, 18-cv-523-JFW (C.D. Cal.)). That conclusion should not be followed in this case for two reasons. First, the California court’s analysis applied only to the Dvash-Banks plaintiffs’ Section 1503 claim; Section 1503 provides a de novo standard of review, and Plaintiffs have not brought such a claim here. Second, the California court based its conclusion on “controlling Ninth Circuit authority,” id., which, of course, does not control in this district, and is flawed in any event, see Defs.’ Reply Mem. In Support of Mot. To Dismiss (“Defs.’ Reply”) 14–17, ECF No. 33. This Court should, however, strongly consider the Dvash-Banks court’s sound rulings on the APA and DJA claims in that case because the Plaintiffs here bring nearly identical claims.
DVASH-BANKS V. POMPEO In Dvash-Banks, a U.S. citizen, Andrew, and his Israeli citizen spouse, Elad, used Assisted Reproductive Technology (“ART”) to conceive children. 2019 WL 911799 at *1. In
1

Case 1:18-cv-00124-EGS Document 37 Filed 03/19/19 Page 3 of 7
September 2016, a surrogate gave birth to two children: E.J., who shared Elad’s genetic material, and A.J., who shared Andrew’s genetic material. Id. An Ontario court entered an order naming Andrew and Elad the legal parents of E.J. and A.J. Id. Thereafter, Andrew and Elad applied for a Consular Report of Birth Abroad and U.S. passport for E.J. and A.J. Id. at *2. The adjudicating officer denied E.J.’s applications on the ground that the applicants had failed to establish a biological connection between E.J. and a U.S. citizen parent. Id.
In January 2018, Andrew filed suit on behalf of himself and E.J., arguing that the denial of E.J.’s applications violated the APA, asserting claims under the DJA alleging violations of their substantive due process and equal protection rights, and pursuing a claim under 8 U.S.C. § 1503(a). Compl., ECF No. 1, Dvash-Banks, 18-cv-523-JFW (C.D. Cal.). The court dismissed the APA claim, concluding that the plaintiffs had an adequate remedy at law under Section 1503(a). Id. at *5–6. Next, it granted summary judgment for the plaintiffs on the Section 1503 claim. Finally, it dismissed as moot the DJA claim alleging a substantive due process violation. Id. at *8–9. The court concluded that because it had decided the Section 1503 claim in the plaintiffs’ favor, it “need not and will not reach the constitutional issue raised” under the DJA. 1 Id. at *8.
ANALYSIS I. The Dvash-Banks court’s decision under 8 U.S.C. § 1503 is of limited
relevance to Plaintiffs’ claims, which are not brought under that statute. The Dvash-Banks court’s conclusions in deciding a claim under 8 U.S.C. § 1503 should not bear on this case because the plaintiffs here do not bring claims under that statute. Under Section 1503, courts examine the question of whether a claimant is a U.S national de novo,
1 On January 14, 2019, the plaintiffs filed a First Amended Complaint, which removed Plaintiffs’ DJA claim alleging an equal protection violation. Compare Compl. with First. Am. Compl., ECF No. 94, Dvash-Banks, 18-cv-523-JFW (C.D. Cal.).
2

Case 1:18-cv-00124-EGS Document 37 Filed 03/19/19 Page 4 of 7
without reviewing the agency actions denying the right or privilege of citizenship at issue. See Maldonado-Sanchez v. Schultz, 706 F. Supp. 54, 58 (D.D.C. 1988); Edwards v. Bryson, 578 Fed. App’x 81, 83 (3d Cir. 2014); Richards v. Sec’y of State, 752 F.2d 1413, 1417 (9th Cir. 1985). In Dvash-Banks, the court did not conclude that the defendants violated the APA, the U.S. Constitution, or any other applicable law; thus, its decision on the Section 1503 claim has no direct applicability here.
In any event, in reaching its interpretation of Section 301, the Dvash-Banks court relied on Ninth Circuit case law, which does not bind this court. As Defendants explained in their motion-to-dismiss briefing, the conclusions of law in Scales v. INS, 232 F.3d 1159 (9th Cir. 2000), and Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005), should not be followed here. See Defs.’ Reply 12–17. The phrase “born . . . of parents” as set forth in Section 301 (emphasis added) 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)—i.e., ensuring a biological connection between a child and his or her parents.2 See Defs.’ Reply 16–17. Moreover, “born … of parents” as understood by Congress must have required a biological relationship, as such a relationship was required to conceive and give birth to a child. See United States v. Marguet-Pillado, 560 F.3d 1078, 1083 (9th Cir. 2009). Decades
2 The Dvash-Banks court relied on Scales for the proposition that the current language in section 309(a), which explicitly requires a “blood relationship” between the U.S. citizen parent and the foreign-born child seeking to acquire U.S. citizenship at birth, precludes an implicit biological relationship in section 301(g). 2019 WL 911799 at *7. But Section 309(a) contained no explicit biological relationship requirement until 1986, while the language of section 301(g) at issue here is unchanged since 1952, and the Ninth Circuit has elsewhere concluded that Congress implicitly required a biological relationship between the U.S. citizen father and child in the previous version of 309(a), which made no mention of a “blood relationship.” United States v. MarguetPillado, 560 F.3d 1078, 1083 (9th Cir. 2009). As explained above, it follows that Congress intended a biological relationship requirement in Section 301(g) as well.
3

Case 1:18-cv-00124-EGS Document 37 Filed 03/19/19 Page 5 of 7
before the existence of ART, Congress would not have contemplated that a man with no biological connection to a child could be the child’s parent at birth.3
Section 301(g)’s language can thus be seen as an indicator that Congress saw no need to be express about a circumstance—a biological link between parents and child—that was unremarkable. “There is nothing irrational or improper in the recognition that at the moment of birth—a critical event in the statutory scheme and in the whole tradition of citizenship law—the mother’s knowledge of the child and the fact of parenthood have been established [],” Nguyen v. INS, 533 U.S. 53, 68 (2001) (emphasis added). See also Miller, 523 U.S. at 443 (Stevens, J.).
It is thus entirely reasonable to construe the language “born of … parents” in Section 301(g) as encompassing both the biological and legal elements of parenthood. This is the basis for the interpretation the Department of State has long held and applied worldwide. In so doing, the Department was simply imputing into the statutory text a requirement it believed was, at minimum, implicit—an interpretation reinforced by the statutory scheme and the context of the pre-ART era in which the INA was enacted. While, as a policy matter, disagreement may exist about whether a biological connection with the U.S. citizen parent should continue to be a prerequisite in determining whether a child born abroad has acquired U.S. citizenship at birth, the Department’s interpretation is not unlawful, for the reasons explained above.
II. The Dvash-Banks court’s decisions on the overlapping claims are instructive. By contrast, the Dvash-Banks court’s rulings on the claims that are present in the instant litigation—an APA claim and a DJA claim—are helpful here. First, the court granted summary judgment motion for defendants on the APA claim because it concluded that Section 1503(a)
3 Further, the Ninth Circuit’s decision in Solis-Espinoza strains the meaning of acquisition of U.S. citizenship at birth. See 8 U.S.C. § 1401. The court in that case glossed over the fact that the U.S. citizen “mother” appeared to be neither the biological nor the legal mother of the claimant at the time of birth. See 401 F.3d at 1091.
4

Case 1:18-cv-00124-EGS Document 37 Filed 03/19/19 Page 6 of 7
provided an adequate remedy at law. Dvash-Banks, 2019 WL 911799 at *5–6. The court correctly noted that the injunctive relief plaintiffs seek is improper, because a claimant may not seek wholesale policy changes under the APA and any relief under that claim should be limited to the plaintiffs. Similarly here, the procedures set forth in Sections 1503(b) and (c) provide a path by which Plaintiffs may ultimately seek an alternative remedy at law. Plaintiffs’ requested injunctive relief is also overbroad. As the Supreme Court recently reaffirmed, a court’s “constitutionally prescribed role is to vindicate the individual rights of the people appearing before it,” and a “plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.”4 Gill v. Whitford, 138 S. Ct. 1916, 1933–34 (2018). Plaintiffs’ APA claim should be dismissed. See Defs.’ Mem. In Supp. of Mot. to Dismiss 20–25, ECF No. 31-1; Defs.’ Reply 9–12.
Further, the Dvash-Banks court dismissed the remaining DJA claim as moot in light of its decision to grant summary judgment in favor of the plaintiffs on their Section 1503 claim. Similarly, this Court should not reach Plaintiffs’ Due Process Clause claim unless it has first considered and rejected the plaintiffs’ statutory challenges. 5 See, e.g., S. Mut. Help Ass’n v. Califano, 574 F.2d 518, 525 (D.C. Cir. 1977) (citing Harmon v. Brucker, 355 U.S. 579, 581 (1958) (per curiam)) (noting that because of the court’s “duty to avoid deciding constitutional questions unless essential to the proper disposition of a case,” it should consider whether a hearing was required by regulation or statute before considering whether a hearing was required by the Due Process Clause); AT&T Wireless PCS, Inc. v. City Council, 155 F.3d 423, 431 n.7 (4th Cir. 1998) (citing Harmon, 355 U.S. at 581).
4 Moreover, the APA’s equitable remedies are discretionary, Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967). There is no equitable reason to enter a nationwide injunction in this case, which was not brought as a class action and does not require such relief to remedy Plaintiffs’ injuries. 5 To the extent this Court reaches Plaintiffs’ DJA claims, it should dismiss them under Rule 12(b)(6). See Defs.’ Mem. in Supp. of Mot. to Dismiss 11–20, ECF No. 31.
5

Case 1:18-cv-00124-EGS Document 37 Filed 03/19/19 Page 7 of 7

Dated: March 19, 2019

Respectfully submitted,
JOSEPH H. HUNT Assistant Attorney General
ANTHONY J. COPPOLINO Deputy Branch Director
/s/ Vinita B. Andrapalliyal Vinita B. Andrapalliyal Trial Attorney United States Department of Justice Civil Division Federal Programs Branch P.O. Box 883 Washington, DC 20044 Tel: (202) 305-0845 vinita.b.andrapalliyal@usdoj.gov
LISA ZEIDNER MARCUS Senior Counsel (N.Y. Bar # 4461679)

6

 
 U.S. District Court District of New Jersey [LIVE] (Newark) CIVIL DOCKET FOR CASE #: 2:20-cv-02102-KM-JBC

BLIXT et al v. UNITED STATES DEPARTMENT OF Date Filed: 02/26/2020

STATE et al

Jury Demand: None

Assigned to: Judge Kevin McNulty

Nature of Suit: 440 Civil Rights:

Referred to: Magistrate Judge James B. Clark

Other

Case in other court: District of Columbia, 1:18-cv-

Jurisdiction: U.S. Government

00124

Defendant

Cause: 05:702 Administrative Procedure Act

Plaintiff ALLISON DAWN BLIXT

represented by MARK MAKAR SULLIVAN & CROMWELL LLP 125 BROAD STREET NEW YORK, NY 10004 973-570-4639 Email: makarm@sullcrom.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
L. Z.-B. STEFANIA ZACCARI Guardian Ad Litem for Plaintiff Lucas Alexander Zaccari-Blixt

represented by MARK MAKAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
UNITED STATES DEPARTMENT OF STATE

represented by VINITA B. ANDRAPALLIYAL U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, OFFICE OF IMMIGRATION LITIGATION P.O. BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20530 202-598-8085 Email: vinita.b.andrapalliyal@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
REX W. TILLERSON The Honorable, Secretary of State

represented by VINITA B. ANDRAPALLIYAL (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # 01/22/2018 1
01/22/2018 2 01/22/2018 3 01/22/2018 01/23/2018 4
01/23/2018 5

Docket Text
COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-5295125) filed by Lucas Alexander Zaccari-Blixt, Allison Dawn Blixt. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Summons Summons to the Department of State, # 7 Summons Summons to Rex W. Tillerson, in his official capacity, # 8 Civil Cover Sheet Civil Cover Sheet)(Cassady, Elizabeth) Modified on 1/22/2018 to correct docket text (jf). (Attachment 8 replaced on 1/24/2018) (jd) (Entered: 01/22/2018)
NOTICE of Appearance by Elizabeth A. Cassady on behalf of All Plaintiffs (Cassady, Elizabeth) (Entered: 01/22/2018)
MOTION Waive Identification of Address Requirements of Local Rule 5.1(c)(1) by Allison Dawn Blixt, Lucas Alexander ZaccariBlixt (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Cassady, Elizabeth) (Entered: 01/22/2018)
Case Assigned to Chief Judge Beryl A. Howell. (jd) (Entered: 01/24/2018)
MOTION for Leave to Appear Pro Hac Vice :Attorney NameTheodore, :Firm- Edelman, :Address- 125 Broad Street, New York, NY 10004-2498. Phone No. - (212) 558-3436. Fax No. - (212) 2919045 Fee Status: No Fee Paid. by Allison Dawn Blixt, Lucas Alexander Zaccari-Blixt (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Cassady, Elizabeth) (Entered: 01/23/2018)
MOTION for Leave to Appear Pro Hac Vice :Attorney NameJessica M. Klein, :Firm- Sullivan & Cromwell, :Address- 125 Broad Street, New York, NY 10004-2498. Phone No. - (212) 5583153. Fax No. - (212) 291-9357 Fee Status: No Fee Paid. by Allison Dawn Blixt, Lucas Alexander Zaccari-Blixt (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Cassady, Elizabeth) (Entered: 01/23/2018)

01/23/2018 6
01/23/2018 7
01/23/2018 8
01/24/2018 9 01/24/2018 01/24/2018 01/24/2018 01/24/2018 01/24/2018

MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Scott E. Blair, :Firm- Sullivan & Cromwell, :Address- 125 Broad Street, New York, NY 10004-2498. Phone No. - (212) 558-3413. Fax No. (212) 291-9724 Fee Status: No Fee Paid. by Allison Dawn Blixt, Lucas Alexander Zaccari-Blixt (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Cassady, Elizabeth) (Entered: 01/23/2018)
MOTION for Leave to Appear Pro Hac Vice :Attorney NameAlexandra H. Moss, :Firm- Sullivan & Cromwell, :Address- 125 Broad Street, New York, NY 10004-2498. Phone No. - (212) 5584334. Fax No. - (212) 291-9502 Fee Status: No Fee Paid. by Allison Dawn Blixt, Lucas Alexander Zaccari-Blixt (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Cassady, Elizabeth) (Entered: 01/23/2018)
MOTION for Leave to Appear Pro Hac Vice :Attorney NameAndrew K. Jennings, :Firm- Sullivan & Cromwell, :Address- 125 Broad Street, New York, NY 10004-2498. Phone No. - (212) 5583197. Fax No. - (212) 558-3588 Fee Status: No Fee Paid. by Allison Dawn Blixt, Lucas Alexander Zaccari-Blixt (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Cassady, Elizabeth) (Entered: 01/23/2018)
SUMMONS (2) Issued Electronically as to REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE. (Attachments: # 1 Notice and Consent)(jd) (Entered: 01/24/2018)
SUMMONS Not Issued as to United States Attorney General and United States Attorney for the District of Columbia. (jd) (Entered: 01/24/2018)
Filing fee received in the amount of $ 100.00, receipt number: 4616089173 re 4 MOTION for Leave to Appear Pro Hac Vice. (zrdj) (Entered: 01/25/2018)
Filing fee received in the amount of $ 100.00, receipt number: 4616089174 re 5 MOTION for Leave to Appear Pro Hac Vice. (zrdj) (Entered: 01/25/2018)
Filing fee received in the amount of $ 100.00, receipt number: 4616089175 re 6 MOTION for Leave to Appear Pro Hac Vice. (zrdj) (Entered: 01/25/2018)
Filing fee received in the amount of $ 100.00, receipt number: 4616089177 re 7 MOTION for Leave to Appear Pro Hac Vice. (zrdj) (Entered: 01/25/2018)

01/24/2018 01/26/2018 10 01/29/2018 11
01/31/2018
02/05/2018 12 02/05/2018 13 02/05/2018 14 02/05/2018 15 02/05/2018 16

Filing fee received in the amount of $ 100.00, receipt number: 4616089176 re 8 MOTION for Leave to Appear Pro Hac Vice. (zrdj) (Entered: 01/25/2018)
Case randomly reassigned to Judge Emmet G. Sullivan. Chief Judge Beryl A. Howell is no longer assigned to the case. (ztnr) (Entered: 01/26/2018)
STANDING ORDER: The parties are directed to read the attached Standing Order Governing Civil Cases Before Judge Emmet G. Sullivan in its entirety upon receipt. The parties are hereby ORDERED to comply with the directives in the attached Standing Order. Signed by Judge Emmet G. Sullivan on 1/29/18. (Attachment: # 1 Exhibit 1) (mac) (Entered: 01/29/2018)
MINUTE ORDER granting 4 , 5 , 6 , 7 , 8 motions for pro hac vice. Attorneys Theodore Edelman, Jessica Klein, Scott Blair, Alexandra Moss, and Andrew Jennings are hereby admitted to practice pro hac vice in this case pursuant to Local Rule 83.2. The Court also hereby grants 3 plaintiffs' motion to waive the address requirements of Local Rule 5.1(c)(1), finding that such action is needed to protect the interests of the young child involved. Signed by Judge Emmet G. Sullivan on 1/31/2018. (lcegs3) (Entered: 01/31/2018)
CERTIFICATE OF SERVICE by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT for Defendant U.S. Department of State (service to the Attorney General). (Cassady, Elizabeth) (Entered: 02/05/2018)
CERTIFICATE OF SERVICE by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT for Defendant U.S. Department of State (service to U.S. Attorney). (Cassady, Elizabeth) (Entered: 02/05/2018)
CERTIFICATE OF SERVICE by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT for Defendant U.S. Department of State. (Cassady, Elizabeth) (Entered: 02/05/2018)
CERTIFICATE OF SERVICE by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT for Defendant Hon. Rex W. Tillerson (service to the Attorney General). (Cassady, Elizabeth) (Entered: 02/05/2018)
CERTIFICATE OF SERVICE by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT for Defendant Hon. Rex W. Tillerson (service to U.S. Attorney). (Cassady, Elizabeth) (Entered: 02/05/2018)

02/05/2018 17 02/05/2018 18 02/27/2018 19 02/28/2018 20 03/21/2018 21 03/21/2018 22 03/30/2018
03/30/2018 05/23/2018 23 05/23/2018 24

CERTIFICATE OF SERVICE by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT for Defendant Hon. Rex W. Tillerson. (Cassady, Elizabeth) (Entered: 02/05/2018)
CERTIFICATE OF SERVICE by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT re 11 Order, Service of Standing Order to Defendants (service to counsel). (Cassady, Elizabeth) (Entered: 02/05/2018)
NOTICE OF WITHDRAWAL OF APPEARANCE as to ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARIBLIXT. Attorney Scott E. Blair terminated. (Cassady, Elizabeth) (Entered: 02/27/2018)
CERTIFICATE OF SERVICE by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT re 19 Notice of Withdrawal of Appearance of Scott E. Blair. (Cassady, Elizabeth) (Entered: 02/28/2018)
NOTICE of Appearance by Vinita B. Andrapalliyal on behalf of REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE (Andrapalliyal, Vinita) (Entered: 03/21/2018)
Joint MOTION to Extend Case Deadlines by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Andrapalliyal, Vinita) (Entered: 03/21/2018)
MINUTE ORDER granting 22 joint motion to extend case deadlines. The parties shall therefore file a joint status report by no later than May 29, 2018 to update the Court as to the status of the parties' efforts to resolve this lawsuit. The defendant is also ordered to respond to the complaint by May 29, 2018. Signed by Judge Emmet G. Sullivan on 3/30/2018. (lcegs3) (Entered: 03/30/2018)
Set/Reset Deadlines: Joint Status Report due by 5/29/2018. Defendant Response To The Conplaint due by 5/29/2018. (mac) (Entered: 03/30/2018)
Joint STATUS REPORT by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE. (Andrapalliyal, Vinita) (Entered: 05/23/2018)
Joint MOTION for Extension of Time Extend Case Deadlines by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Andrapalliyal,

05/25/2018
05/27/2018 06/01/2018 25 07/11/2018 26 07/11/2018 27 07/16/2018
08/01/2018 28 08/01/2018 29

Vinita) Modified event title on 5/25/2018 (znmw). (Entered: 05/23/2018)
MINUTE ORDER granting 24 joint motion to extend case deadlines, in view of the parties' representations that they are engaging in settlement discussions. The deadline for the defendants to respond to the complaint shall therefore be stayed. The parties are ordered to file a joint status report by no later than July 16, 2018 updating the Court as to the status of the parties' discussions and efforts to resolve this lawsuit. Signed by Judge Emmet G. Sullivan on 5/25/2018. (lcegs3) (Entered: 05/25/2018)
Set/Reset Deadlines: Joint Status Report due by 7/16/2018 updating the Court as to the status of the parties' discussions and efforts to resolve this lawsuit. (jth) (Entered: 05/27/2018)
NOTICE OF WITHDRAWAL OF APPEARANCE as to ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARIBLIXT. Attorney Alexandra H. Moss terminated. (Cassady, Elizabeth) (Entered: 06/01/2018)
Joint STATUS REPORT by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE. (Andrapalliyal, Vinita) (Entered: 07/11/2018)
Joint MOTION Extend Case Management Deadlines by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Andrapalliyal, Vinita) (Entered: 07/11/2018)
MINUTE ORDER granting 27 joint motion to extend case deadlines, in view of the parties' representations that they are engaging in settlement discussions. The deadline for the defendants to respond to the complaint shall therefore be stayed. The parties are ordered to file a joint status report by no later than August 6, 2018 updating the Court as to the status of the parties' discussions and efforts to resolve this lawsuit. Signed by Judge Emmet G. Sullivan on 7/16/2018. (lcegs3) (Entered: 07/16/2018)
Joint STATUS REPORT by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE. (Andrapalliyal, Vinita) (Entered: 08/01/2018)
Joint MOTION for Extension of Time to Respond to Complaint, Joint MOTION for Briefing Schedule by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE (Attachments:

08/03/2018
08/03/2018 30 08/03/2018 09/03/2018 31 10/17/2018 32 11/07/2018 33 02/12/2019 34

# 1 Text of Proposed Order)(Andrapalliyal, Vinita) (Entered: 08/01/2018)
MINUTE ORDER granting 29 defendants' consent motion for extension of time to answer the complaint. The parties shall therefore adhere to the following briefing schedule: (1) defendants shall file a motion to dismiss by no later than September 3, 2018; (2) plaintiffs' response shall be filed by no later than October 17, 2018; (3) defendants' reply shall be filed by no later than November 7, 2018. Signed by Judge Emmet G. Sullivan on 8/3/2018. (lcegs3) (Entered: 08/03/2018)
NOTICE OF WITHDRAWAL OF APPEARANCE as to ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARIBLIXT. Attorney Andrew K. Jennings terminated. (Cassady, Elizabeth) (Entered: 08/03/2018)
Set/Reset Deadlines: Motion To Dismiss due by 9/3/2018. Plaintiffs' Response due by 10/17/2018 Defendants' Reply due by 11/7/2018. (mac) (Entered: 08/03/2018)
MOTION to Dismiss , MOTION to Dismiss for Lack of Jurisdiction by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Andrapalliyal, Vinita) (Entered: 09/03/2018)
Memorandum in opposition to re 31 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction filed by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARIBLIXT. (Attachments: # 1 Text of Proposed Order)(Cassady, Elizabeth) (Entered: 10/17/2018)
REPLY to opposition to motion re 31 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction filed by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE. (Andrapalliyal, Vinita) (Entered: 11/07/2018)
Ex Parte MOTION to Appoint Guardian ad Litem by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT (Attachments: # 1 Memorandum in Support of Ex Parte Application for Appointment of Guardian Ad Litem, # 2 Declaration of Elizabeth A. Cassady in Support of Ex Parte Application, # 3 Declaration of Stefania Zaccari in Support of Ex Parte Application, # 4 Text of Proposed Order)(Cassady, Elizabeth) (Entered: 02/12/2019)

02/13/2019 02/25/2019
02/25/2019 03/12/2019 35 03/13/2019 03/14/2019 03/19/2019 36

MINUTE ORDER treating 34 ex parte motion for appointment of guardian ad litem as an unopposed motion and granting the relief requested. Pursuant to Federal Rule of Civil Procedure 17(c)(2), the Court hereby appoints Stefania Zaccari as the guardian ad litem for Plaintiff Lucas Alexander Zaccari-Blixt. Signed by Judge Emmet G. Sullivan on 02/13/19. (mac) (Entered: 02/13/2019)
MINUTE ORDER. In light of the recent decision in Andrew Mason Dvash-Banks et al. v. Michael R. Pompeo et al., No. 18-cv-523JFW (JCx) (C.D. Cal. Feb. 21, 2019), ECF No. 123 at 8 (concluding that "Section 301 [of the Immigration and Nationality Act, 8 U.S.C. § 1401,] does not require a person born during their parents' marriage to demonstrate a biological relationship with both of their married parents."), the Court directs the parties to file supplemental briefs concerning 31 Defendant's Motion to Dismiss by no later than March 15, 2019. Each submission shall not exceed five pages. The parties need not address the issue of whether or not the recent decision is non-binding, persuasive authority. Signed by Judge Emmet G. Sullivan on 2/25/2019. (lcegs3) (Entered: 02/25/2019)
Set/Reset Deadlines: Supplemental Briefs due by 3/15/2019. (mac) (Entered: 02/25/2019)
MOTION for Extension of Time to File Supplemental Briefing by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Andrapalliyal, Vinita) (Entered: 03/12/2019)
MINUTE ORDER granting over objection 35 Defendants' Motion for Extension of Time to File Supplemental Briefing. The parties shall file their supplemental briefs by no later than March 19, 2019. Defendants are advised that any future request for an extension of time as to the supplemental briefing will be strongly disfavored. Signed by Judge Emmet G. Sullivan on 3/13/2019. (lcegs3) (Entered: 03/13/2019)
Set/Reset Deadlines: Supplemental Briefing due by 3/19/2019. (mac) (Entered: 03/14/2019)
SUPPLEMENTAL MEMORANDUM 32 Memorandum in opposition to re 31 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction filed by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT. (Cassady, Elizabeth) Modified on 3/20/2019 (jf). (Entered: 03/19/2019)

03/19/2019 37 04/01/2019 04/02/2019 04/03/2019 05/15/2019
05/15/2019 05/15/2019
05/15/2019

SUPPLEMENTAL MEMORANDUM re 31 Support of Motion to Dismiss filed by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE. (Andrapalliyal, Vinita) Modified on 3/20/2019 (jf). (Entered: 03/19/2019)
MINUTE ORDER. The Court will hold a status hearing in this case on April 10, 2019 at 1:00 PM in Courtroom 24A. Signed by Judge Emmet G. Sullivan on 4/1/2019. (lcegs3) (Entered: 04/01/2019)
MINUTE ORDER. Due to the Court's calendar, the status hearing currently scheduled for April 10, 2019 at 1:00 PM will now take place on May 15, 2019 at 1:00 PM in Courtroom 24A. The Court regrets any inconvenience to the parties. Signed by Judge Emmet G. Sullivan on 4/2/2019. (lcegs3) (Entered: 04/02/2019)
Set/Reset Hearings: Status Conference set for 5/15/2019 at 1:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 04/03/2019)
MINUTE ORDER. Due to the Court's calendar, the status hearing currently scheduled for May 15, 2019 at 1:00 PM will now take place on May 15, 2019 at 1:30 PM in Courtroom 24A. PLEASE NOTE THE TIME CHANGE. The Court regrets any inconvenience to the parties. Signed by Judge Emmet G. Sullivan on 5/15/2019. (lcegs3) (Entered: 05/15/2019)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 5/15/2019. The Court Will Deny 31 Motion to Dismiss, Motion to Dismiss for Lack of Jurisdiction. The Court Will Issue Order Forthcoming. (Court Reporter JANICE DICKMAN.) (mac) (Entered: 05/15/2019)
MINUTE ORDER denying 31 Defendants' Motion to Dismiss for the reasons stated on the record during the hearing held on May 15, 2019. The parties are directed to submit a joint status report by no later than May 31, 2019. The government is directed to file the administrative record by no later than June 30, 2019. Signed by Judge Emmet G. Sullivan on 5/15/2019. (lcegs3) (Entered: 05/15/2019)
MINUTE ORDER REFERRING CASE to Magistrate Judge Robin M. Meriweather for Mediation and Discovery. In light of the parties' representations at the hearing held on May 15, 2019, the Court refers this case to Magistrate Judge Meriweather for mediation and discovery. The parties are directed to adhere to Magistrate Judge Meriweather's procedures for all discovery-related

05/15/2019 05/16/2019 05/16/2019 05/16/2019 05/21/2019 38
05/29/2019 39

motions. Signed by Judge Emmet G. Sullivan on 5/15/2019. (lcegs3) (Entered: 05/15/2019)
CASE DIRECTLY REFERRED to Magistrate Judge Robin M. Meriweather for mediation and discovery. (zad) (Entered: 05/16/2019)
Set/Reset Deadlines: Government To File Administrative Record due by 6/30/2019. Joint Status Report due by 5/31/2019. (mac) (Entered: 05/16/2019)
MINUTE ORDER. The parties are directed to file their initial disclosures required under Federal Rule of Civil Procedure 26(a)(1) by no later than May 29, 2019. Signed by Judge Emmet G. Sullivan on 5/16/2019. (lcegs3) (Entered: 05/16/2019)
Set/Reset Deadlines: Initial Disclosures due by 5/29/2019. (mac) (Entered: 05/16/2019)
TRANSCRIPT OF PROCEEDINGS before Judge Emmet G. Sullivan held on May 15, 2019; Page Numbers: 1-55. Date of Issuance:May 21, 2019. Court Reporter: Janice Dickman, Telephone number: 202-354-3267, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 6/11/2019. Redacted Transcript Deadline set for 6/21/2019. Release of Transcript Restriction set for 8/19/2019.(Dickman, Janice) (Entered: 05/21/2019)
Unopposed MOTION for Extension of Time to File Answer by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Andrapalliyal, Vinita) (Entered: 05/29/2019)

05/30/2019
05/31/2019 40 06/14/2019 41 06/18/2019 42 06/28/2019 43 08/26/2019 44 10/02/2019 45 10/03/2019
10/15/2019

MINUTE ORDER granting 39 Defendants' Unopposed Motion for Extension of Time to File Answer. Defendants shall file their answer to the complaint by no later than June 14, 2019. Signed by Judge Emmet G. Sullivan on 5/30/2019. (lcegs3) (Entered: 05/30/2019)
Joint STATUS REPORT by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE. (Andrapalliyal, Vinita) (Entered: 05/31/2019)
ANSWER to Complaint by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE.(Andrapalliyal, Vinita) (Entered: 06/14/2019)
NOTICE of Appearance by Lisa Zeidner Marcus on behalf of All Defendants (Marcus, Lisa) (Entered: 06/18/2019)
NOTICE of Filing of Certified Index of the Administrative Record by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE (Attachments: # 1 Certification, # 2 Index)(Andrapalliyal, Vinita) (Entered: 06/28/2019)
NOTICE : Letter to the Hon. Robin M. Meriweather from the Parties by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE (Andrapalliyal, Vinita) (Entered: 08/26/2019)
NOTICE of Filing of Letter to Judges Sullivan and Meriweather by ALLISON DAWN BLIXT (Cassady, Elizabeth) (Entered: 10/02/2019)
NOTICE OF ERROR re 45 Notice (Other); emailed to cassadye@sullcrom.com, cc'd 9 associated attorneys -- The PDF file you docketed contained errors: 1. Incorrect document/case, 2. DO NOT REFILE - Counsel should review LCvR 5.1 (a) CORRESPONDENCE WITH THE COURT. (jf) (Entered: 10/03/2019)
MINUTE ORDER. In view of 45 Notice of Filing of Letter to Judges Sullivan and Meriweather that states Plaintiffs intend to relocate to the United States, the parties are directed to file a joint status report with a recommendation for further proceedings by no later than 12:00 PM on October 25, 2019. The government is directed to address what impact, if any, will L.Z.-B.'s application for permanent residency have on this case. The parties shall adhere to the directives in the 11 Court's Standing Order for all future filings. See Standing Order, ECF No. 11 at 2 § 3(b) ("Parties are to

10/15/2019 10/25/2019 46 10/30/2019
10/30/2019 01/17/2020 47 01/17/2020
01/21/2020 02/13/2020 48

communicate with the Court in writing by motion, opposition, and reply; not by letter or telephone call."). Signed by Judge Emmet G. Sullivan on 10/15/2019. (lcegs3) (Entered: 10/15/2019)
Set/Reset Deadlines: Joint Status Report due no later than 12:00PM on 10/25/2019. (mac) (Entered: 10/15/2019)
Joint STATUS REPORT dated October 25, 2019 by ALLISON DAWN BLIXT, STEFANIA ZACCARI, LUCAS ALEXANDER ZACCARI-BLIXT. (Attachments: # 1 Text of Proposed Order)(Cassady, Elizabeth) (Entered: 10/25/2019)
MINUTE ORDER. In view of the 46 Joint Status Report, and for good cause shown, it is hereby ORDERED that this case is STAYED until January 17, 2020. The parties are hereby ORDERED to file a joint status report with a recommendation for further proceedings by no later than January 17, 2020. Signed by Judge Emmet G. Sullivan on 10/30/2019. (lcegs3) (Entered: 10/30/2019)
Set/Reset Deadlines: Joint Status Report due by 1/17/2020. (mac) (Entered: 10/30/2019)
Joint STATUS REPORT dated January 17, 2020 by ALLISON DAWN BLIXT, STEFANIA ZACCARI, LUCAS ALEXANDER ZACCARI-BLIXT. (Attachments: # 1 Text of Proposed Order)(Cassady, Elizabeth) (Entered: 01/17/2020)
MINUTE ORDER. Upon consideration of the 47 Joint Status Report, and for good cause shown, it is hereby ORDERED that this case is STAYED until February 14, 2020. The parties are hereby ORDERED to file a joint status report on February 14, 2020, if no motion or stipulation to transfer has been filed by or before February 14, 2020. Signed by Judge Emmet G. Sullivan on 1/17/2020. (lcegs3) (Entered: 01/17/2020)
Set/Reset Deadlines: Joint Status Report Or Stipulation due by 2/14/2020. Case Stayed. (mac) (Entered: 01/21/2020)
Joint MOTION to Transfer Case Pursuant to 28 U.S.C. 1404 by ALLISON DAWN BLIXT, STEFANIA ZACCARI, LUCAS ALEXANDER ZACCARI-BLIXT (Attachments: # 1 Memorandum in Support of Joint Motion to Transfer Case, # 2 Declaration of Allison Dawn Blixt in Support of Joint Motion to Transfer Case, # 3 Text of Proposed Order)(Cassady, Elizabeth) (Entered: 02/13/2020)

02/14/2020 02/14/2020 02/26/2020 49 02/28/2020 03/25/2020 50 03/25/2020 51
03/26/2020
04/06/2020 52

MINUTE ORDER granting 48 Joint Motion to Transfer Case. Pursuant to 28 U.S.C. § 1404(a), it is hereby ORDERED that this case is TRANSFERRED to the United States District Court for the District of New Jersey. Signed by Judge Emmet G. Sullivan on 2/14/2020. (lcegs3) (Entered: 02/14/2020)
Set/Reset Deadlines: Transfer due by 2/24/2020. (mac) (Entered: 02/14/2020)
Certified Copy of Transfer Order and docket received, Case transferred in from District of District of Columbia; Case Number 1:18-cv-00124. Original file certified copy of transfer order and docket sheet received. (Entered: 02/26/2020)
Judge Kevin McNulty and Magistrate Judge James B. Clark added. (ps, ) (Entered: 02/28/2020)
NOTICE of Appearance by MARK MAKAR on behalf of ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARIBLIXT (MAKAR, MARK) (Entered: 03/25/2020)
MOTION for Leave to Appear Pro Hac Vice by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT. (Attachments: # 1 Certification of Mark A. Makar, # 2 Certification of Theodore Edelman, # 3 Certification of Jessica M. Klein, # 4 Certification of Elizabeth A. Cassady, # 5 Certification of Lauren M. Goldsmith, # 6 Certification of Aaron C. Morris, # 7 Text of Proposed Order, # 8 Statement As To Why No Brief Is Necessary, # 9 Certificate of Service)(MAKAR, MARK) (Entered: 03/25/2020)
Set Deadlines as to 51 MOTION for Leave to Appear Pro Hac Vice . Motion set for 4/20/2020 before Judge Kevin McNulty. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (sm) (Entered: 03/26/2020)
ORDER granting 51 Motion for Leave to Appear Pro Hac Vice of Theodore Edelman, Jessica M. Klein, Elizabeth A. Cassady, Lauren M. Goldsmith and Aaron C. Morris; each counsel shall make a payment to the New Jersey Lawyer's Fund for Client Protection and shall each pay $150 to the Clerk of the United States District Court; etc. Signed by Magistrate Judge James B. Clark on 4/6/2020. (sm) (Entered: 04/06/2020)

04/09/2020 04/13/2020
53 04/13/2020 54
04/14/2020
07/13/2020 55 07/14/2020 56 07/14/2020 57

Pro Hac Vice fee as to Theodore Edelman, Jessica M. Klein, Elizabeth A. Cassady, Lauren M. Goldsmith and Aaron C. Morris $750.00, receipt number CAM011217 (tf, ) (Entered: 04/09/2020)
MOTION for Leave to File Proposed First Amended Complaint Pursuant to Federal Rule of Civil Procedure 15(a)(2) by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT.
(Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order, # 5 Certificate of Service)(MAKAR, MARK) (Entered: 04/13/2020)
STATEMENT of Redaction Pursuant to Local Civil Rule 5.2(17) by ALLISON DAWN BLIXT, LUCAS ALEXANDER ZACCARI-BLIXT. (Attachments: # 1 Certificate of Service)(MAKAR, MARK)
NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days following the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal if the motion is resolved, unless otherwise directed by the
Court. (Entered: 04/13/2020)
Set Deadlines as to 53 MOTION for Leave to File Proposed First Amended Complaint Pursuant to Federal Rule of Civil Procedure 15(a)(2). Motion set for 5/18/2020 before Judge Kevin McNulty. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (sm) (Entered: 04/14/2020)
ORDER granting 53 Plaintiffs' Motion for Leave to Amend the Complaint. Signed by Magistrate Judge James B. Clark on 7/13/2020. (sm) (Entered: 07/13/2020)
AMENDED COMPLAINT against REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE, filed by LUCAS ALEXANDER ZACCARI-BLIXT, ALLISON DAWN BLIXT. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(MAKAR, MARK) (Entered: 07/14/2020)
STATEMENT of Redaction Pursuant to Local Civil Rule 5.2(17) by ALLISON DAWN BLIXT, LUCAS ALEXANDER

07/28/2020 58
07/28/2020 59 08/05/2020 60
08/26/2020 61
08/27/2020 62
09/12/2020 63
09/14/2020 09/17/2020
64

ZACCARI-BLIXT. (Attachments: # 1 Certificate of Service)(MAKAR, MARK)
NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days following the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal if the motion is resolved, unless otherwise directed by the
Court. (Entered: 07/14/2020)
NOTICE of Appearance by VINITA B. ANDRAPALLIYAL on behalf of REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE (ANDRAPALLIYAL, VINITA) (Entered: 07/28/2020)
ANSWER to Amended Complaint by REX W. TILLERSON, UNITED STATES DEPARTMENT OF STATE.(ANDRAPALLIYAL, VINITA) (Entered: 07/28/2020)
LETTER ORDER: Initial Conference set for 9/14/2020 at 10:30 AM in Newark - Courtroom 2A before Magistrate Judge James B. Clark. Signed by Magistrate Judge James B. Clark on 8/5/2020. (seb) (Entered: 08/05/2020)
STIPULATION re 60 Order, Set Hearings, Set/Clear Flags (Joint Request to Appear Remotely at Initial Conference) by All Defendants. (ANDRAPALLIYAL, VINITA) (Entered: 08/26/2020)
ORDER that parties request to appear the at 9/14/2020 conference via telephone or VTC; counsel for Plaintiffs shall initiate the call. Signed by Magistrate Judge James B. Clark on 8/27/2020. (sm) (Entered: 08/28/2020)
TEXT ORDER - The upcoming Rule 16 initial conference scheduled in this matter will be conducted telephonically. Prior to the call, Plaintiff is directed to provide dial-in information for the Court via e-mail (JBC_orders@njd.uscourts.gov) and for opposing counsel. So Ordered by Magistrate Judge James B. Clark on 9/12/2020. (seb) (Entered: 09/12/2020)
Minute Entry for proceedings held before Magistrate Judge James B. Clark: Scheduling Conference held on 9/14/2020. (seb) (Entered: 09/22/2020)
LETTER ORDER: The parties shall serve amended disclosures by September 28, 2020. 2) The parties shall submit a stipulation of agreed facts by September 28, 2020. 3) The parties shall file motions for summary judgment on the Section 1503(a) claim by

09/21/2020 65

November 18, 2020. Oppositions to such motions shall be filed by January 4, 2021. Any replies shall be filed by February 4, 2021. The formal return date of any such motions shall be February 16, 2021 etc. Signed by Magistrate Judge James B. Clark on 9/14/2020. (bt, ) (Entered: 09/17/2020)
STIPULATION of Agreed Facts by ALLISON DAWN BLIXT, L. Z.-B.. (MAKAR, MARK) (Entered: 09/21/2020)

PACER Service Center Transaction Receipt

10/15/2020 14:00:31

PACER Login:

crclearinghouse

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Rogers

Description:

Docket Report

Search Criteria:

2:20-cv-02102-KM-JBC Start date: 1/1/1971 End date: 10/15/2020

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9

Cost:

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Exempt flag: Not Exempt

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 Case 2:20-cv-02102-KM-JBC Document 48 Filed 02/13/20 Page 1 of 3 PageID: 406

Elizabeth A. Cassady (D.C. Bar. No. 997160) SULLIVAN & CROMWELL LLP 1700 New York Avenue, N.W. Washington, D.C. 20006 Telephone: 202-956-6980
Theodore Edelman (pro hac vice) Jessica Klein (pro hac vice) 125 Broad Street New York, New York 10004 Telephone: 212-558-4000
Aaron C. Morris IMMIGRATION EQUALITY 40 Exchange Place, Suite 1300 New York, New York 10005 Telephone: 212-714-2904

Attorneys for Plaintiffs
VINITA B. ANDRAPALLIYAL United States Department of Justice Civil Division Federal Programs Branch P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 305-0845

Attorney for Defendants

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALLISON DAWN BLIXT and L. Z.-B.
Plaintiffs, v.
The UNITED STATES DEPARTMENT OF STATE and MICHAEL R. POMPEO in his official capacity as Secretary, U.S. Department of State.
Defendants.

:

:

:

:

:

Civ. No. 1:18-cv-00124-EGS

:

: JOINT MOTION FOR TRANSFER

: PURSUANT TO 28 U.S.C. § 1404(a)

:

:

:

:

Case 2:20-cv-02102-KM-JBC Document 48 Filed 02/13/20 Page 2 of 3 PageID: 407

Pursuant to 28 U.S.C. § 1404(a), Plaintiffs Allison Dawn Blixt and L. Z.-B., by

and through his court-appointed guardian ad litem, Stefania Zaccari (together, “Plaintiffs”) along

with Defendants, the United States Department of State and the Honorable Michael R. Pompeo,

in his official capacity as Secretary of State, (together, “Defendants”; collectively with Plaintiffs,

the “Parties”) jointly move the Court to transfer the above-captioned action to the United States

District Court for the District of New Jersey.

In support of this motion, the Parties submit the accompanying Memorandum of

Points and Authorities in Support of Motion to Transfer Pursuant to 28 U.S.C. § 1404(a),

Declaration of Allison Dawn Blixt in Support of Parties’ Motion to Transfer, and a proposed

order.

Dated: February 13, 2020

Respectfully submitted,

By: /s/ Elizabeth A. Cassady SULLIVAN & CROMWELL LLP Elizabeth A. Cassady (D.C. Bar. No. 997160) 1700 New York Avenue, N.W. Washington, D.C. 20006 Telephone: 202-956-6980 Email: cassadye@sullcrom.com

Theodore Edelman (pro hac vice) Jessica Klein (pro hac vice) 125 Broad Street New York, New York 10004 Telephone: 212-558-4000

IMMIGRATION EQUALITY Aaron C. Morris 40 Exchange Place, Suite 1300 New York, New York 10005 Telephone: 212-714-2904 Email: amorris@immigrationequality.org

Attorneys for Plaintiffs

2

Case 2:20-cv-02102-KM-JBC Document 48 Filed 02/13/20 Page 3 of 3 PageID: 408
JOSEPH H. HUNT Assistant Attorney General ANTHONY J. COPPOLINO Deputy Director By: /s/ Vinita B. Andrapalliyal VINITA B. ANDRAPALLIYAL Trial Attorneys United States Department of Justice Civil Division Federal Programs Branch P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Tel: (202) 305-0845 Fax: (202) 616-8470 Email: Vinita.b.andrapalliyal@usdoj.gov Attorney for Defendants
3

Case 2:20-cv-02102-KM-JBC Document 48-1 Filed 02/13/20 Page 1 of 6 PageID: 409

Elizabeth A. Cassady (D.C. Bar. No. 997160) SULLIVAN & CROMWELL LLP 1700 New York Avenue, N.W. Washington, D.C. 20006 Telephone: 202-956-6980
Theodore Edelman (pro hac vice) Jessica Klein (pro hac vice) 125 Broad Street New York, New York 10004 Telephone: 212-558-4000
Aaron C. Morris IMMIGRATION EQUALITY 40 Exchange Place, Suite 1300 New York, New York 10005 Telephone: 212-714-2904

Attorneys for Plaintiffs
VINITA B. ANDRAPALLIYAL United States Department of Justice Civil Division Federal Programs Branch P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 305-0845

Attorney for Defendants

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALLISON DAWN BLIXT and L. Z.-B.
Plaintiffs, v.
The UNITED STATES DEPARTMENT OF STATE and MICHAEL R. POMPEO in his official capacity as Secretary, U.S. Department of State.
Defendants.

:

:

:

:

Civ. No. 1:18-cv-00124-EGS

:

: MEMORANDUM OF POINTS AND

: AUTHORITIES IN SUPPORT OF

: JOINT MOTION FOR TRANSFER

: PURSUANT TO 28 U.S.C. § 1404(a)

:

:

:

Case 2:20-cv-02102-KM-JBC Document 48-1 Filed 02/13/20 Page 2 of 6 PageID: 410
MEMORANDUM OF POINTS AND AUTHORITIES Plaintiffs, Allison Dawn Blixt and L. Z.-B., by and through his court-appointed guardian ad litem, Stefania Zaccari, (together, “Plaintiffs”) along with Defendants, the United States Department of State and the Honorable Michael R. Pompeo, in his official capacity as Secretary of State, (together, “Defendants”; collectively with Plaintiffs, the “Parties”), jointly move the Court to transfer the above-captioned action (“Action”) to the United States District Court for the District of New Jersey (“D.N.J.”). STATEMENT OF FACTS RELEVANT TO THIS MOTION L. Z.-B. was born in London, England during the marriage of a same-sex couple—Allison Dawn Blixt, a U.S. citizen, and Stefania Zaccari, an Italian citizen—using assisted reproductive technology. (See Compl. ¶ 1–2.) L. Z.-B. was conceived using sperm from an anonymous donor and Stefania’s egg. (See Compl. ¶ 2.) Allison and Stefania are the only individuals listed on L. Z.-B.’s birth certificate as his parents. (Compl. ¶ 2.) On May 23, 2017, Plaintiffs appeared in person at the U.S. Embassy in London to apply for a Consular Report of Birth Abroad (“CRBA”) for L. Z.-B.—evidencing his U.S. citizenship. (Compl. ¶ 53.) The Department of State denied L. Z.-B.’s application. The denial letter stated that L. Z.-B.’s application for a CRBA was denied under Section 309(c) of the Immigration and Nationality Act (“INA”) (“Section 309”), 8 U.S.C. § 1409(c), because “[i]t has been determined that there is not a biological relationship . . . between the U.S. citizen mother and child.” (See Compl. ¶ 57; see also Compl. Ex. D.) That letter reflects Defendants’ interpretation of Section 301 of the INA (“Section 301”), 8 U.S.C. § 1401, to require that a child’s biological parents were married to each other at the time of birth, and consequent adjudication of L. Z.-B.’s application under Section 309, which governs children born out of wedlock. Under that interpretation, in addition to a legal relationship, either a genetic parental or gestational relationship needed to exist
2

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between Allison and L. Z.-B. for his application to be approved under Section 309. (See Compl. Ex. D; see also Compl. ¶¶ 55, 57.) On January 22, 2018, Plaintiffs filed the Complaint in this Court, pursuant to 28 U.S.C. § 1391(e). (See generally Compl.)
The Complaint asserts claims under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A), the Due Process Clause of the Fifth Amendment, and the Equal Protection Clause of the Fourteenth Amendment. (See Compl. ¶¶ 73–98.) Specifically, the Complaint seeks, among other things, (1) a declaration that Defendants unconstitutionally and in violation of the INA classify children of same-sex-married couples to be “born out of wedlock” and thus eligible for citizenship at birth under Section 309 rather than Section 301, if at all; (2) an injunction enjoining Defendants from continuing this allegedly infirm approach, and (3) a declaration “declar[ing] [L. Z.-B.] a U.S. citizen at birth.” (Compl. at 24.) Because Plaintiffs resided in London, England at the time the Complaint was filed (see Declaration of Allison Dawn Blixt ¶ 2), the Complaint does not assert a claim under 8 U.S.C. § 1503(a) (“Section 1503(a)”), which provides a cause of action for an individual “who is within the United States” and to whom the federal government denies a “right or privilege . . . upon the ground that he is not a national of the United States.” In particular, such a person may institute an action under 28 U.S.C. § 2201 “for a judgment declaring him to be a national of the United States.” A claim under Section 1503(a) “shall be filed in the district court of the United States for the district in which such person resides . . . . ”
In late 2019, Plaintiffs relocated from London, England to Essex County, New Jersey. (See Declaration of Allison Dawn Blixt ¶ 3.) As Plaintiffs now reside in the United States, they would be able to pursue a Section 1503(a) claim arising out of the denial of L.Z.-B.’s CRBA application, if the Court transfers this Action pursuant to this motion. The Parties
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therefore jointly move to transfer the Action to D.N.J., the district in which Plaintiffs now reside, and the only district in which Plaintiffs may pursue a claim under Section 1503(a).
ARGUMENT Pursuant to 28 U.S.C. § 1404(a), “a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented” for “the convenience of parties and witnesses, in the interest of justice.” If all parties consent to transfer an action, the transferor court need not consider whether venue otherwise would have been proper in the transferee court. Fesniak v. Equifax Mortg. Servs. LLC, 2015 WL 2412119, at *8 (D.N.J. May 20, 2015) (“In deciding whether to transfer venue, the court must first determine whether all parties consent to the transfer and, if not, whether personal jurisdiction and venue would be proper in the transferee district.”); see also Edley v. Saul, 2019 WL 3238635, at *6 n.7 (D.D.C. July 18, 2019) (concluding that transfer would promote the convenience of the parties and the interest of justice “in light of both parties’ consent”). Here, the Parties have conferred pursuant to Local Civil Rule 7 and all consent to transfer the Action to D.N.J. and agree that a transfer is convenient for the Parties and witnesses and is in the interest of justice. Multiple relevant witnesses, including Allison Blixt and Stefania Zaccari, now are located in Essex County, New Jersey. Further, although this Court remains an appropriate venue for adjudication of Plaintiffs’ APA, due process, and equal protection claims, D.N.J. is the only appropriate venue for Plaintiffs’ Section 1503(a) claim, as Section 1503(a) requires that such a claim be litigated “in the district court of the United States for the district in which [Plaintiffs] reside . . . .” Because Plaintiffs would be forced to litigate their Section 1503(a) claim in a parallel action in D.N.J. absent transfer, the requested transfer is in the interest of justice and would “‘prevent[] the unnecessary expenditure of judicial and party resources that
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would otherwise occur if the claims were heard in multiple judicial districts.’” Edley, 2019 WL

3238635, at *6 (quoting Sierra Club v. Johnson, 623 F. Supp. 2d 31, 38 (D.D.C. 2009))

(collecting cases).

CONCLUSION

For the foregoing reasons, the Parties respectfully request that the Court transfer this

Action to the United States District Court for the District of New Jersey, without prejudice to any

rights, claims or defenses of the Parties, and grant to the Parties such other and further relief as

the Court may deem just and proper.

Dated: February 13, 2020

Respectfully submitted,
By: s/ Elizabeth A. Cassady SULLIVAN & CROMWELL LLP Elizabeth A. Cassady (D.C. Bar. No. 997160) 1700 New York Avenue, N.W. Washington, D.C. 20006 Telephone: 202-956-6980 Email: cassadye@sullcrom.com
Theodore Edelman (pro hac vice) Jessica Klein (pro hac vice) 125 Broad Street New York, New York 10004 Telephone: 212-558-4000
IMMIGRATION EQUALITY Aaron C. Morris 40 Exchange Place, Suite 1300 New York, New York 10005 Telephone: 212-714-2904 Email: amorris@immigrationequality.org
Attorneys for Plaintiffs

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JOSEPH H. HUNT Assistant Attorney General ANTHONY J. COPPOLINO Deputy Director By: s/ Vinita B. Andrapalliyal VINITA B. ANDRAPALLIYAL Trial Attorney United States Department of Justice Civil Division Federal Programs Branch P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Tel: (202) 305-0845 Fax: (202) 616-8470 Email: Vinita.b.andrapalliyal@usdoj.gov Counsel for Defendants
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Case 2:20-cv-02102-KM-JBC Document 48-2 Filed 02/13/20 Page 1 of 2 PageID: 415

Elizabeth A. Cassady (D.C. Bar. No. 997160) SULLIVAN & CROMWELL LLP 1700 New York Avenue, N.W. Washington, D.C. 20006 Telephone: 202-956-6980
Theodore Edelman (pro hac vice) Jessica Klein (pro hac vice) 125 Broad Street New York, New York 10004 Telephone: 212-558-4000
Aaron C. Morris IMMIGRATION EQUALITY 40 Exchange Place, Suite 1300 New York, New York 10005 Telephone: 212-714-2904

Attorneys for Plaintiffs
VINITA B. ANDRAPALLIYAL United States Department of Justice Civil Division Federal Programs Branch P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 305-0845

Attorney for Defendants

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALLISON DAWN BLIXT and L. Z.-B.

:

:

Plaintiffs,

:

v.

:

:

The UNITED STATES DEPARTMENT :

OF STATE and MICHAEL R. POMPEO :

in his official capacity as Secretary, U.S. :

Department of State.

:

:

Defendants. :

:

Civ. No. 1:18-cv-00124-EGS
DECLARATION OF ALLISON DAWN BLIXT IN SUPPORT OF PARTIES’ JOINT MOTION TO TRANSFER VENUE PURSUANT
TO 28 U.S.C. § 1404(a)

Case 2:20-cv-02102-KM-JBC Document 48-2 Filed 02/13/20 Page 2 of 2 PageID: 416
I, Allison Dawn Blixt, hereby declare under penalty of perjury that the following is true and correct:
1. I respectfully submit this declaration in support of the Parties’ Joint Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a). If called to testify, I would, and could, testify competently as to the facts described in this declaration.
2. At the time of the commencement of this action on January 22, 2018, my wife, Stefania, our sons, L. Z.-B. and M. Z.-B., and I resided in London, England.
3. By December 21, 2019, we had all relocated from London, England to Essex County, New Jersey, in connection with my acceptance of employment in the United States.
4. We currently reside in Essex County and expect to do so for the foreseeable future.
I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true and correct.
Executed on the 13 day of February, 2020, in Essex County, New Jersey. _______________________________ Allison Dawn Blixt
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Elizabeth A. Cassady (D.C. Bar. No. 997160) SULLIVAN & CROMWELL LLP 1700 New York Avenue, N.W. Washington, D.C. 20006 Telephone: 202-956-6980
Theodore Edelman (pro hac vice) Jessica Klein (pro hac vice) 125 Broad Street New York, New York 10004 Telephone: 212-558-4000
Aaron C. Morris IMMIGRATION EQUALITY 40 Exchange Place, Suite 1300 New York, New York 10005 Telephone: 212-714-2904

Attorneys for Plaintiffs
VINITA B. ANDRAPALLIYAL United States Department of Justice Civil Division Federal Programs Branch P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 305-0845

Attorney for Defendants

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALLISON DAWN BLIXT and L. Z.-B.
Plaintiffs, v.
The UNITED STATES DEPARTMENT OF STATE and MICHAEL R. POMPEO in his official capacity as Secretary, U.S. Department of State.
Defendants.

:

:

:

:

Civ. No. 1:18-cv-00124-EGS

:

: [PROPOSED] ORDER GRANTING

: PARTIES’ JOINT MOTION TO

: TRANSFER VENUE PURSUANT

:

TO 28 U.S.C. § 1404(a)

:

:

:

Case 2:20-cv-02102-KM-JBC Document 48-3 Filed 02/13/20 Page 2 of 2 PageID: 418 This matter comes before the Court on the Parties’ Joint Motion to Transfer
Venue Pursuant to 28 U.S.C. § 1404(a). The Court having considered the matter and for good cause shown, it is hereby ORDERED that the Parties’ Joint Motion to Transfer is GRANTED, and the above-captioned action is TRANSFERRED to the United States District Court for the District of New Jersey.
This ____ day of February 2020. ____________________________ The Honorable Emmet G. Sullivan United States District Judge
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 Case 2:20-cv-02102-KM-JBC Document 56 Filed 07/14/20 Page 1 of 25 PageID: 162

UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF NEW JERSEY

------------------------------------------------------------------ x

:

ALLISON DAWN BLIXT and L. Z.-B., Plaintiffs,
v.

: : FIRST AMENDED COMPLAINT
: : Docket No. 2:20-CV-02102-KM: JBC

THE UNITED STATES DEPARTMENT OF STATE, : Hon. Kevin McNulty and THE HONORABLE MICHAEL R. POMPEO, :

Secretary of State,

:

:

Defendants.

:

:

------------------------------------------------------------------ x

PRELIMINARY STATEMENT

1. This action challenges a United States Department of State (“State Department”) policy that hurts families and undermines the familial relationships of same-sex parents. The agency’s policy unconstitutionally disregards the dignity and sanctity of same-sex marriages by refusing to recognize the birthright citizenship of the children of married same-sex couples. Plaintiffs are members of a family who have suffered and continue to suffer harm because of the State Department’s policy. The family includes: Allison Dawn Blixt (“Allison”), a United States citizen who was born and raised in this country; Allison’s wife, Stefania Zaccari (“Stefania”), an Italian citizen; and their two young sons, L. Z.-B. and M. Z.-B.
2. Both L. Z.-B. and M. Z.-B. were conceived and born in London, England during Allison’s marriage to Stefania. Allison and Stefania conceived their children using their own eggs and sperm from an unknown donor. Stefania conceived and carried L. Z.-B. to term. Allison conceived and carried M. Z.-B. to term. Allison and Stefania are the only parents listed on L.

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Z.-B.’s and M. Z.-B.’s birth certificates, and are the only people English law1 recognizes as L. Z.-B. and M. Z.-B.’s parents. Accordingly, Allison and Stefania have been their children’s legal parents from the day they came into this world.
3. At birth, both L. Z.-B. and M. Z.-B. qualified for United States citizenship pursuant to Section 301(g) of the Immigration and Nationality Act (“INA”) (codified at 8 U.S.C. § 1401(g)). That clause entitles a person born abroad to citizenship at birth if one of that person’s married parents is a United States citizen and the other is a foreign national, as long as the citizen parent satisfies certain statutorily prescribed periods of residency in the United States. Allison is a U.S. citizen who lived in the United States for over twenty years, and so clearly satisfies the residency requirements of Section 301(g). Because Allison and Stefania were married to each other when L. Z.-B. and M. Z.-B. were born, L. Z.-B. and M. Z.-B. have been U.S. citizens since birth under Section 301(g).
4. The State Department, through the United States Embassy in London, however, failed to apply Section 301(g) to L. Z.-B. and M. Z.-B. Instead, it applied Section 309 of the INA (codified at 8 U.S.C. § 1409), a provision of the statute which applies only to children born “out of wedlock.” Because the State Department wrongly considered them to have been born “out of wedlock,” it concluded that they could qualify for citizenship at birth only as the children of unwed parents, and therefore could acquire such citizenship only pursuant to Section 309 and only if Allison gave birth to them both.
5. Focusing improperly on the biological relationship between each child and the parent who conceived and carried him, the State Department then recognized M. Z.-B.’s

1

To the extent necessary to introduce or address issues of non-U.S. law in 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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citizenship and denied L. Z.-B.’s. The State Department’s application of Section 309 instead of Section 301 is an unlawful, unconstitutional refusal to recognize the validity of Allison and Stefania’s marriage and, therefore, that a child born to them during that marriage is the offspring of that marriage. The fact that the State Department’s policy has led children identified by their birth certificates as boys with the same parents to have different nationalities listed on their passports crystallizes both the indignity and absurdity of the policy’s effect.
6. The State Department’s failure to recognize and give effect to the marriage between Allison and Stefania also denies L. Z.-B. the rights and privileges that accompany U.S. citizenship, including the right to reside permanently in the United States as a U.S. citizen, the right to obtain a U.S. passport, and, when he is older, the right to run for political office. Because the State Department does not recognize L. Z.-B.’s U.S. citizenship, he cannot visit or live in the United States freely on the same terms as other members of his family.
7. The State Department’s decision to withhold from L. Z.-B. the same rights granted to his brother means that he will experience the indignity and stigma of unequal treatment imposed and endorsed by the U.S. government. No governmental purpose could justify imposing these indignities on a child of a valid marriage or restricting a family’s freedom to live together as a family.
8. The State Department’s policy is not only wrong and harmful, it is also contrary to the INA as well as the guarantees of due process and equal protection enshrined in the Fifth Amendment. To the extent that the State Department’s policy was adopted before the Supreme Court’s recent precedents guaranteeing equality to married same-sex couples and their families, its continued enforcement violates the law. The Supreme Court has made clear that the Constitution requires that same-sex marriages receive the same legal effects and respect as
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opposite-sex marriages. The State Department’s policy, or at least its application to L. Z.-B., violates that mandate by restricting eligibility for citizenship under Section 301 of the INA solely to children whose parents are in opposite-sex marriages. These violations create real and significant hardships for the Zaccari-Blixt family and others like them. Soon, L. Z.-B. will be old enough to realize that the U.S. government views him as a non-citizen with no enforceable connection to his mother or brother, and discriminates against him based on the sex and sexual orientation of his parents.
9. The State Department’s policy serves no rational, legitimate, or substantial government interest. The State Department’s policy drives apart families by treating the children of the same married parents differently depending upon which mother bore the child. The threat that this policy poses to family unity confirms that it is contrary to the legislative intent of the INA, which enshrines the preservation of the family unit as a paramount consideration. Neither the INA nor the U.S. Constitution permits the State Department’s unlawful policy to stand.
THE PARTIES 10. Plaintiff Allison is a 41-year-old citizen of the United States. She was born in Illinois, raised in North Carolina, and resided as an adult in New York. She currently resides in Essex County, New Jersey. 11. Plaintiff L. Z.-B. is 5 years old. He was born in London, England, where he resided with his parents Allison and Stefania and his younger brother, M. Z.-B., until late 2019. L. Z.-B. currently resides in Essex County, New Jersey, along with Allison, Stefania, and M. Z.-B. L. Z.-B. was granted lawful permanent residence in the United States as of November 22, 2019. 12. Allison brings the above-captioned action (“Action”) in her individual capacity and on behalf of her minor son L. Z.-B.
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13. Allison and L. Z.-B. commenced this Action on January 22, 2018 with the filing of the Complaint in the United States District Court for the District of Columbia (“D.D.C.”). On February 13, 2019, that court appointed L. Z.-B.’s other parent, Stefania, to be L. Z.-B.’s guardian ad litem in the Action. L. Z.-B. brings this Action by and through Stefania in her capacity as his guardian ad litem.
14. Defendant the United States Department of State is a department of the government of the United States of America, whose headquarters office is located at the Department of State, 2201 C St. NW, Washington, D.C. 20520. The State Department oversees all U.S. embassies and sets the policy U.S. embassy employees follow in determining whether to recognize the citizenship of the children of U.S. citizens.
15. Defendant The Honorable Michael R. Pompeo is the Secretary of State, whose office is located at the Department of State, 2201 C St. NW, Washington, D.C. 20520, and is being sued in his official capacity.
JURISDICTION AND VENUE 16. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. 17. This Court is authorized to issue a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202. 18. This Court is authorized to issue a judgment and injunctive relief pursuant to 5 U.S.C. § 702. 19. Venue in this district is proper pursuant to 28 U.S.C. § 1391(e). 20. This Court is authorized to make a de novo determination and judgment of citizenship pursuant to 8 U.S.C. § 1503(a).
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PROCEDURAL BACKGROUND 21. On January 22, 2018, Allison and L. Z.-B. filed the Complaint against Defendants in the D.D.C. Allison and L. Z.-B. filed the Action in the D.D.C. because they resided outside the United States at the time of the Action’s commencement. The Complaint asserted claims under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A), the Due Process Clause of the Fifth Amendment, and the Equal Protection Clause of the Fifth Amendment. 22. Defendants filed in the D.D.C. a Motion to Dismiss for Lack of Subject Matter Jurisdiction, and Failure to State a Claim Upon Which Relief Can Be Granted (“Motion to Dismiss”) on September 3, 2018. On May 15, 2019, following a court conference on that date, the court denied in full Defendants’ Motion to Dismiss. 23. In late 2019, Plaintiffs relocated from London, England to Essex County, New Jersey. Because of this development, on February 13, 2020, Plaintiffs and Defendants filed in the D.D.C. a Joint Motion For Transfer Pursuant to 28 U.S.C. § 1404(a) (“Transfer Motion”) primarily to enable Plaintiffs to seek to file the first amended complaint. On February 14, 2020, the court in the D.D.C. granted the Transfer Motion and ordered the transfer of the Action to this Court.
STATUTORY AND REGULATORY BACKGROUND A. United States Citizenship at Birth 24. There are two pathways to become a United States citizen at birth: one pursuant to the Constitution and another by statute, the INA. The “Citizenship Clause” of the Fourteenth Amendment of the Constitution provides, in part, that anyone born in the United States is a citizen at birth. Under the INA, persons born outside the United States may be considered citizens at birth under certain statutorily prescribed circumstances. If a person born outside the United States does
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not acquire citizenship at birth, that person can acquire citizenship only through naturalization, and therefore can never be eligible for the presidency as are birthright citizens.
25. The provisions governing eligibility for U.S. citizenship at birth by individuals born outside the United States are set forth in Sections 301 through 309 of the INA. Section 301 is titled “Nationals and citizens of United States at birth.” Under Section 301(g), babies born abroad are U.S. citizens at birth when (1) one of the child’s parents is a married United States citizen and (2) the U.S. citizen parent lived in the U.S. for at least five years, at least two of which were after the parent’s fourteenth birthday.
26. Section 309 is titled “Children born out of wedlock,” and its provisions explicitly apply only to a person “born out of wedlock.” The requirements for citizenship at birth under that provision differ substantially from those in Section 301, which has long been regarded as applicable to anyone whose parents were lawfully married when the child was born. For unwed mothers, subsection 309(c) specifies, in part, that:
a person born . . . outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth . . . . 27. As a result of the different requirements for the children of wed and unwed U.S. citizens, it is possible for a person to qualify for citizenship at birth under Section 301 even if the person does not qualify under Section 309. Thus, the determination of whether a child is born in or out of wedlock can be dispositive of the ultimate question of whether or not a child acquired U.S. citizenship at birth. 28. Since its enactment in 1952, the INA has neither included nor been amended to include definitions of the terms “parent,” and “person,” as used in Section 301, or the terms “mother,” “father,” and “out of wedlock,” as used in Section 309.
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29. Before and after the enactment of the INA, the majority of U.S. states have followed the common law in presuming that every child born in wedlock is the legitimate offspring of the child’s married parents. That presumption applies even when only one spouse is the child’s biological parent. The structure of the INA effectively codifies the common law presumption of parentage for married couples by making Section 301 applicable to any person except for children who are born “out of wedlock.”
B. The History of Sex-Based Discrimination as to Citizenship Rights 30. The first citizenship law of the United States denied women any individual right to citizenship, let alone any right to transmit citizenship independently to their children. A woman who married would lose whatever citizenship she held prior to marriage, automatically and necessarily becoming a citizen of her husband’s country, as would any children she conceived and carried while married. 31. Because women had no independent right to transmit citizenship to their children, unmarried women could not transmit citizenship to children they conceived and carried. Because unmarried women had no husbands, these children had no parent from whom they could derive citizenship, and therefore had no nationality or citizenship status at all. In light of the hardships suffered by such children, Congress amended the immigration laws to provide citizenship for the children of unwed U.S. citizens. 32. When Congress enacted the INA in 1952, it used the sex-neutral word “parent” in the provision governing the acquisition of U.S. citizenship at birth by children born abroad in wedlock, ensuring equal treatment of married men and married women and of the children born during their marriage. By contrast, Congress imposed different requirements on children born out of wedlock based on whether their U.S. citizen parent was an unwed mother or unwed father.
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33. The Supreme Court has approved of applying different requirements to the children of unwed mothers and fathers for purposes of acquiring U.S. citizenship under Section 309. According to the Court, pregnancy—by nature and duration—ensures a child and mother have the requisite connection for the mother to transmit citizenship to her child at birth, while an unwed father—by nature of not being married to the child’s mother—may be asked to do more to ensure he is sufficiently connected to a child he may never even meet or have anything to do with beyond his role in the child’s conception.
34. The Supreme Court has rejected the application of different requirements, however, for eligibility for U.S. citizenship at birth of children of unwed fathers and mothers when those requirements have no relationship to—and therefore cannot be justified on the basis of—the biological differences between the sexes associated with pregnancy and childbirth. Thus, for example, federal law cannot require an unwed father to live in the United States for a longer period of time than an unwed mother before conferring citizenship on his child.
35. Congress has made clear that the legislative intent behind the INA should be construed liberally because the INA was designed to make it easier—not harder—for families of citizens and non-citizens to stay together. According to Congress, “the legislative history of the Immigration and Nationality Act clearly indicates that the Congress intended to provide for a liberal treatment of children and was concerned with the problem of keeping families of United States Citizens and Immigrants united.” H.R. Rep. 85-1199, at 2020 (1957). Congress has also declared that “the statutory language makes it clear that the underlying intent [is] to preserve the family unit upon immigration to the United States.” Id.
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36. In amending the INA, Congress recognized that the hardships faced by families fractured along citizenship lines were overwhelmingly greater than any harm that could come from the liberal treatment of children with respect to citizenship.
C. The Constitutional Rights of Same-Sex Couples 37. As the Supreme Court has recognized, same-sex couples have long been subjected to illegal institutional discrimination and social stigmatization. The Supreme Court’s precedent makes clear that the Constitution compels equal protection and recognition of, and respect for, the rights of same-sex spouses, including their right to have autonomy over the most personal and intimate of choices—decisions about starting a family and sustaining a partnership in which to raise and nurture a child. Accordingly, the State Department must recognize the “equal dignity of same-sex marriages.” United States v. Windsor, 133 S. Ct. 2675, 2693 (2013). 38. After Windsor invalidated the statute excluding same-sex marriages from federal recognition, the federal government announced that it would recognize same-sex marriages for immigration purposes. See Statement from Homeland Security Secretary Janet Napolitano on July 1, 2013, available at https://www.uscis.gov/family/same-sex-marriages (“As a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. Just as [the United States Citizenship and Immigration Services] applies all relevant laws to determine the validity of an opposite-sex marriage, we will apply all relevant laws to determine the validity of a same-sex marriage.”). 39. Following Windsor, the Supreme Court overturned state laws that barred same-sex couples from marrying as inconsistent with the Constitution’s guarantees of due process and equal protection, including rights central to an individual’s autonomy and dignity, such as one’s choice of intimate life partner. Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
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40. The Court further warned that failure to recognize same-sex marriages “harm[s] and humiliate[s] the children of same-sex couples.” Id. at 2590. The Court also recognized that “[w]ithout the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser.” Id.
41. In Pavan v. Nathaniel Smith, the Supreme Court held that married couples must receive the same “constellation of benefits . . . linked to marriage,” regardless of whether the marriage is between spouses of the same or opposite sexes. 137 S. Ct. 2075, 2077 (2017). Those benefits include the legal recognition that same-sex spouses may both be the parents of a child born during their marriage, even if only one spouse is the child’s biological parent.
D. The State Department’s Restrictive Classification of Eligible Children 42. The INA does not define or limit the class of persons born in wedlock who are eligible for citizenship at birth pursuant to Section 301. Nevertheless, the State Department is restricting the class to exclude all or nearly all children of married same-sex couples. 43. The State Department has imposed that policy by inserting a definition of terms into an Appendix to the Foreign Affairs Manual (“FAM”), available at https://fam.state.gov/. Specifically, 1140 Appendix E of the FAM, titled “‘IN WEDLOCK’ AND ‘OUT OF WEDLOCK,’” includes subsection (c), which 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.” (A copy of the relevant portion of the appendix is appended to this Complaint at Exhibit A.) 44. 1140 Appendix E of the FAM has never been submitted to notice and comment rulemaking. However, it forms the basis for the State Department’s conclusion that the children were born out of wedlock.
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45. The State Department’s policy of limiting birthright citizenship to children who are biologically related to a U.S. citizen parent has been rejected by the United States Courts of Appeals for the Second and Ninth Circuits in three separate decisions. See Jaen v. Sessions, 899 F.3d 182 (2d Cir. 2018); Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005); Scales v. INS, 232 F.3d 1159, 1166 (9th Cir. 2000). A district judge in the United States District Court for the Central District of California also recently rejected the State Department’s policy in a closely analogous case. See Dvash-Banks v. Pompeo, 2019 WL 911799 (C.D. Cal. Feb. 21, 2019), appeal filed, No. 19-55517 (9th Cir. Oct. 11, 2019).
FACTUAL ALLEGATIONS A. The Zaccari-Blixt Family 46. Allison is a U.S. citizen who was born, raised, and has lived as an adult in the United States. Born in 1978 in Park Ridge, Illinois, Allison moved at age six with her family to Clemmons, North Carolina, where she lived until graduating from high school and moving to Poughkeepsie, New York to attend Vassar College. Allison lived in the United States continuously from the time she was born in 1978 until 2008. 47. After graduating from college, Allison spent a year and a half coaching college field hockey at Hartwick College in Oneonta, New York, before returning to North Carolina to attend law school. In 2005, Allison received her law degree from the University of North Carolina, and moved to New York City, where she began working as an associate at a law firm. 48. Stefania is an Italian citizen, born in 1974 in Ferentino, Italy. Allison and Stefania met in 2006 when Stefania was visiting New York City on vacation. At that time, Stefania lived and worked in Rome, Italy, where she returned after her trip to New York ended. Allison and Stefania’s relationship continued despite the distance.
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49. At the end of 2007, Stefania returned to New York, this time after a year of being in a long-distance relationship with Allison. Stefania stayed with Allison in New York for as long as she was legally permitted: 90 days. During that time, the couple decided to take the next step in their relationship and live together.
50. Stefania was not eligible then to immigrate to the United States, nor could she hope to become eligible if the two married: at the time, the Defense of Marriage Act, 1 U.S.C. § 7, barred the federal government from providing immigration benefits on the basis of same-sex marriages.
51. As a citizen of Italy, a member state of the European Union, Stefania could live and work freely in England. As an employee of a law firm with a London office, Allison obtained a transfer of her position to the firm’s London office, allowing her to live and work there. In 2008, Stefania and Allison moved to London so that they could finally be together.
52. In 2009, Allison and Stefania entered into a civil partnership in England. On January 3, 2015, they retroactively converted their civil partnership to a valid marriage following the recognition of marriage for same-sex couples in England. (A copy of Allison and Stefania’s marriage certificate is appended to this Complaint at Exhibit B.)2
53. In the ensuing years, Allison and Stefania decided to start a family and have children. Given that Allison and Stefania are both women, they conceived children through the use of assisted reproductive technology.
54. In 2014, Stefania became pregnant using sperm from an unknown donor, and on 2015, gave birth to a baby boy. Stefania Zaccari and Allison Blixt gave their son a

2

References to L. Z.-B.’s full name, as well as other personal identifying information, have

been redacted from Exhibits B through E to preserve L. Z.-B.’s privacy and the privacy of his

family.

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name that would reflect their status as a married couple and family: L. Z.-B. (A copy of L. Z.-B.’s

birth certificate is appended to this Complaint at Exhibit C.)

55. Allison and Stefania are L. Z.-B.’s parents in all relevant respects. They are

L. Z.-B.’s legal birth parents, and his birth certificate lists only Allison and Stefania as parents.

No one else has ever claimed to be or been declared to be his parent. Allison and Stefania made

the decision together to bring L. Z.-B. into this world and into their family, and have raised L. Z.-

B. together since the day he was born. Under the law of England—the jurisdiction in which L.

Z.-B.’s parents resided at the time of L. Z.-B.’s birth, and the only jurisdiction relevant here—

Allison is L. Z.-B.’s legal parent.

56. After L. Z.-B. was born, Allison and Stefania decided to have another child

together. In 2016, Allison became pregnant, using sperm from the same donor (whose identity is

unknown) the couple had selected when conceiving L. Z.-B. On

2017, Allison gave

birth to a baby boy. As they did for L. Z.-B., the parents gave their second child a name that would

clearly indicate that his parents are Allison Blixt and Stefania Zaccari: M. Z.-B. Allison and

Stefania are M. Z.-B.’s legal parents. They—and they alone—are identified as M. Z.-B.’s parents

on his birth certificate and have acted in all respects as his exclusive parents.

57. L Z.-B. and M. Z.-B. are part of the same family, with the same parents. In terms

of their relationship to Allison, the only distinction between them is that Allison’s wife conceived

and carried L. Z.-B. instead of Allison. That distinction should make no difference to L. Z.-B.’s eligibility for U.S. citizenship at birth as a child demonstrably not born out of wedlock. But to the

State Department, this is all the difference in the world.

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B. The Application of the State Department’s Policy to the Zaccari-Blixt Family

58. After L. Z.-B. was born in

2015, Allison and Stefania appeared in person

at the U.S. Embassy in London to apply for a Consular Report of Birth Abroad and a U.S. passport

for L. Z.-B.

59. Notwithstanding Allison’s citizenship, marriage, and status as L. Z.-B.’s legal

parent, an Embassy official inquired into the details of L. Z.-B.’s birth, asking how Allison and

Stefania had conceived L. Z.-B., whose genetic material had been used to conceive him, and in

whose womb he had been carried. These invasive questions were as shocking as they were

demeaning to Allison and her family. The Embassy official did not explain how these questions

were relevant, if at all, to the question of whether L. Z.-B. had been born in or out of wedlock.

60. After answering the official’s questions, Allison was informed that it would be

futile to apply for a Consular Report of Birth Abroad for L. Z.-B. unless Allison could prove she

had carried him or provided the egg used to conceive him. Accordingly, Allison and Stefania left

the Embassy without submitting an application, heartbroken to learn that the U.S. government

would not recognize or give effect to their marriage or Allison’s parentage.

61. After M. Z.-B. was born, Allison and Stefania returned to the Embassy on May 23,

2017 to submit applications for Consular Reports of Birth Abroad on behalf of L. Z.-B. and

M. Z.-B. Again, Stefania and Allison were asked a series of invasive and legally irrelevant

questions about how their children were conceived and born. Again, they were told that L. Z.-B.

would not be recognized as a citizen because of the lack of a genetic or gestational relationship

between him and Allison. Stefania and Allison nonetheless submitted the applications on behalf

of both L. Z.-B. and M. Z.-B.

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62. In May 2017, Allison and Stefania received notice from the U.S. Embassy in London that M. Z.-B.’s application for a Consular Report of Birth Abroad for a U.S. passport had been granted, but that L. Z.-B.’s application had been denied. According to a letter from the Embassy, dated May 24, 2017 (the “Letter”), L. Z.-B.’s application had been denied on the ground that Section 309(c) of the INA required proof of L. Z.-B.’s genetic parental or gestational relationship to Allison regardless of his birth certificate and Allison and Stefania’s marriage. (A copy of the Letter is appended to this Complaint at Exhibit D.) Specifically, the Letter read, in part:
It has been determined that there is not a biological relationship be [sic] between the U.S. citizen mother and child, through either a genetic parental relationship or a gestational relationship, as required under the provisions of section 309(c) of the Immigration and Nationality Act. Therefore, your application is denied. (Id. at 1.) 63. The Letter did not explain why the State Department or the Embassy considered Section 309(c) applicable to L. Z.-B., whose parents were lawfully married to each other at the time of his birth. The Letter did not refer to Section 301(g) or provide any legal authority supporting the refusal to recognize Allison’s status as L. Z.-B.’s mother or L. Z.-B.’s status as a child born in wedlock. The Letter also failed to identify any means through which its denial of L. Z.-B.’s application could be challenged, appealed, or reviewed. (Id.) 64. Because L. Z.-B. was not granted a Consular Report of Birth Abroad, he was not granted a U.S. passport, and therefore he is treated differently from, and does not have the same rights as, a U.S. citizen, let alone a U.S. citizen at birth. Among other things, the denial of L. Z.-B.’s application for a Consular Report of Birth Abroad, and the State Department’s consequent refusal to recognize L. Z.-B. as a U.S. citizen, has restricted L. Z.-B.’s ability to vote in U.S. elections in the future, his eligibility for federal employment, and his ability to run for and
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hold elected office. The State Department’s policy also has deprived Allison of her right to transmit citizenship to L. Z.-B., which is among the most important rights and benefits available to a married U.S. citizen. In light of L. Z.-B.’s young age and dependence on his parents, these restrictions inflict concrete harms on L. Z.-B. and his family, as well as governmentally imposed diminutions of their fundamental protections and dignity, that are overwhelming and ongoing.
65. In light of the discriminatory and concrete harms caused by the Embassy’s decision, Plaintiffs’ counsel, on behalf of Allison and L. Z.-B., submitted a letter to the Embassy on September 5, 2017 requesting reconsideration of its denial of L. Z.-B.’s application for a Consular Report of Birth Abroad. Counsel sought reconsideration on the ground that the State Department had applied the incorrect statutory provision based on an unconstitutional rationale that denies legal recognition to same-sex marriages.
66. In a letter dated November 7, 2017, the Embassy responded, summarily stating that it had “affirm[ed] that [L. Z.-B.] did not acquire U.S. citizenship at birth,” and therefore could not issue him a Consular Report of Birth Abroad. (A copy of that letter is appended to this Complaint at Exhibit E.) The Embassy did not offer any explanation or reason for its affirmance.
C. The State Department Erroneously Deemed L. Z.-B. to Have Been Born “Out of Wedlock”
67. As alleged herein, L. Z.-B. acquired U.S. citizenship at birth under Section 301(g) of the INA. Pursuant to Section 301(g), a U.S. citizen at birth includes:
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.
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68. Because L. Z.-B. is not a child born out of wedlock, his citizenship status is governed by Section 301(g). L. Z.-B. clearly satisfies the criteria for U.S. citizenship at birth under Section 301(g). That is so because his mother, Allison, lived in the U.S. for most of her life and clearly satisfies the statutory residence requirements of physical presence in the United States for no less than five years, including at least two after turning fourteen years old.
69. The only way that L. Z.-B. would not be a citizen at birth under the INA is if he were a child born out of wedlock, as the State Department has deemed him. That determination was erroneous both as a matter of statutory interpretation and as a matter of the Constitution’s guarantees of due process and equal protection.
D. The State Department’s Policy Unconstitutionally Discriminates on the Basis of Sex and Sexual Orientation.
70. The decision to marry—like the decision to have children—is one of the most deeply personal choices one can make. For the liberty guaranteed by the Constitution to be meaningful and effective, individuals must be able to make these fundamental and personal life choices freely, with dignity and without unwarranted consequences for the individual and his family. Accordingly, the Constitution’s guarantees of due process and equal protection apply with full force to an individual’s fundamental right to marry the spouse of his or her own choosing, including a spouse of the same sex. The Constitution requires not only recognition and protection of the right to enter into same-sex marriages, but also affords same-sex marriages the full constellation of legal rights and benefits—including dignity and respect—that have traditionally flowed from opposite-sex marriages.
71. The State Department’s policy and its application to L. Z.-B. is unconstitutional because they violate L. Z.-B.’s and Allison’s rights to due process and equal protection under the Fifth Amendment of the Constitution. As discussed above, the State Department refuses to apply
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Section 301(g) of the INA to L. Z.-B. based on its erroneous and demeaning classification of him as a child born out of wedlock. Apparently on that basis alone, it refuses to recognize L. Z.-B.’s citizenship.
72. Under the State Department’s policy, citizenship through Section 301 is presumptively available to any person the State Department deems born “in wedlock”—a class the agency has construed to consist almost exclusively of children conceived and carried by women who are married to men.
73. Nothing in the INA or the Constitution permits the State Department’s limitation of birthright citizenship under Section 301 to the children of U.S. citizens in opposite-sex marriages. The State Department’s requirement is unfounded and ensures unconstitutionally unequal treatment of the children of married same-sex couples.
74. The government has provided no rationale for this discriminatory policy. Furthermore, there is no legitimate governmental purpose that could justify limiting birthright citizenship in this way. To the contrary, such an approach undermines the congressionally established, legitimate, and important government purposes that underlie the INA itself. For example, the State Department’s approach ultimately makes it harder, not easier, for families like the Zaccari-Blixts to stay together. This undermines the INA’s statutory intent of “provid[ing] for a liberal treatment of children and . . . keeping families of United States Citizens and Immigrants united.” H.R. Rep. 85-1199, at 2020 (1957).
75. In amending the INA, Congress recognized that no harm could come from the liberal treatment of children with respect to citizenship, and that the consequences of such treatment would fulfill “the clearly expressed legislative intention to keep together the family unit wherever possible.” Id. at 2021.
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76. Although the State Department’s policy may in theory apply to marriages between spouses of opposite sexes, its overwhelming effect is to deprive married same-sex spouses—and their children—of fundamental rights and equal dignity as citizens under the law. The fact that some married opposite-sex couples may use assisted reproductive technology to conceive a child does not change the discriminatory nature or harmful effects of the government’s policy on samesex couples, for whom such means are the only way to procreate.
77. In addition to discriminating against L. Z.-B., the State Department’s policy discriminates against Allison by denying her the ability to transmit citizenship to a child her wife conceived and carried during Allison’s marriage. This right is presumptively available to similarly situated parents who are men—i.e., male U.S. citizens married to alien national women. Therefore, in denying Allison this right, the State Department’s policy also discriminates against her based on her sex.
COUNT I – DECLARATORY JUDGMENT THE STATE DEPARTMENT’S POLICY VIOLATES THE DUE PROCESS
GUARANTEE OF THE FIFTH AMENDMENT. 78. Plaintiffs repeat, reallege, and incorporate by reference the allegations contained in paragraphs 1 through 77 as if fully set forth herein. 79. The Fifth Amendment of the Constitution prohibits the federal government from depriving individuals of their rights without due process of law. 80. The Due Process Clause of the Fifth Amendment prohibits the federal government from depriving any person of life, liberty, or property without due process of law, as well as from depriving any person of equal protection under the law. 81. Section 301 of the INA entitles U.S. citizens to confer citizenship at birth on their children born abroad in wedlock. The INA does not require U.S. citizens to be in opposite-sex
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marriages to confer citizenship under Section 301. Nor does the INA require a child’s biological parents to be married to each other for the child to be considered born in wedlock, and therefore eligible for citizenship under Section 301. The INA merely requires that the child is not born out of wedlock.
82. Defendants have violated and continue to violate the Fifth Amendment of the United States Constitution by enforcing a policy that excludes U.S. citizens in same-sex marriages from conferring citizenship pursuant to Section 301, while restricting access to citizenship under that provision to the children of married opposite-sex couples. Defendants’ policy has deprived and continues to deprive Plaintiffs of their rights to acquire and confer citizenship at birth pursuant to INA Section 301. As a result of Defendants’ policy, Plaintiffs have suffered, and will suffer, irreparable harm to their protected interest in conferring, and having recognized, L. Z.-B.’s U.S. citizenship.
83. There is no rational, legitimate, or substantial governmental interest served by denying the children of married same-sex couples access to citizenship at birth pursuant to Section 301 of the INA based on the sex and/or sexual orientation of the child’s citizen-parent. Nor is there any rational, legitimate, or substantial government interest served by denying married samesex U.S. citizens the right to confer citizenship on children born abroad during their marriage based on the citizen’s sex and/or sexual orientation or exercise of the protected right to enter into a samesex marriage. Defendants have offered no justification, either in their Letter, or in response to counsel’s September 5, 2017 inquiry, for precluding Allison from conferring on L. Z.-B. citizenship pursuant to Section 301.
84. As a result of Defendants’ arbitrary, discriminatory, and unlawful implementation and enforcement of its policy prohibiting married same-sex U.S. citizens from conferring U.S.
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citizenship on their children born in wedlock outside the United States, Plaintiffs have suffered injuries and will suffer further irreparable harm to their constitutional rights under the Fifth Amendment if the State Department’s policy is not declared unconstitutional and enjoined.
85. Plaintiffs have no adequate remedy at law. COUNT II – DECLARATORY JUDGMENT
THE STATE DEPARTMENT’S POLICY VIOLATES THE CONSTITUTIONAL GUARANTEE OF EQUAL PROTECTION UNDER THE LAW.
86. Plaintiffs repeat, reallege, and incorporate by reference the allegations contained in paragraphs 1 through 77 as if fully set forth herein.
87. The Due Process Clause of the Fifth Amendment prohibits the federal government from denying persons the equal protection of its laws.
88. Under the State Department’s interpretation of Sections 301 and 309, essentially no child could be considered born in wedlock to same-sex spouses, even if the child’s parents are married to each other and are the sole individuals identified on the child’s birth certificate as his or her parents.
89. The State Department has offered no rationale, in either its initial Letter or in response to counsel’s September 5, 2017, inquiry, to explain why it bars same-sex parents from relying upon Section 301.
90. The State Department’s interpretation has a disparate impact on married same-sex couples, because under that policy they can essentially never confer upon a child of such a couple U.S. citizenship pursuant to Section 301.
91. Defendants’ Letter, denying the application for a Consular Report of Birth Abroad by deeming L. Z.-B. to be a child born out of wedlock, discriminates against L. Z.-B. and Allison
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based on sex and sexual orientation, without lawful justification, in violation of the Equal Protection component of the Due Process Clause of the Fifth Amendment.
92. Defendants’ above-described discrimination against people who have an intimate relationship with a partner of the same sex—a discrete and insular group with a long history of discrimination and degradation including by those acting under the color of law—does not advance any rational, legitimate, or substantial governmental interest.
93. As a result of Defendants’ implementation and enforcement of its discriminatory policy of excluding the children of married same-sex couples from qualifying for citizenship at birth as children born in wedlock outside the United States, Plaintiffs have suffered injuries and will suffer further irreparable harm to their constitutional rights under the Fifth Amendment if the State Department’s policy is not declared unconstitutional and enjoined.
94. Plaintiffs have no adequate remedy at law. COUNT III – DECLARATION THAT L. Z.-B. IS A U.S. CITIZEN
95. Plaintiffs repeat, reallege, and incorporate by reference the allegations contained in paragraphs 1 through 77 as if fully set forth herein.
96. 8 U.S.C. § 1503(a) authorizes this Court to make a de novo determination of the citizenship status of L. Z.-B.
97. Allison is a U.S. citizen, who was born in the United States and was physically present in the United States for a period of more than twenty-nine years, starting from the time she was born in Illinois in 1978 until the time she moved to London, England in 2008.
98. In 2009, Allison and Stefania entered into a civil partnership in England. On January 3, 2015, they retroactively converted their civil partnership to a valid marriage following the legalization of same-sex marriage in England.
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99. L. Z.-B. was born in London, England on

2015, during Allison’s

marriage to Stefania.

100. Allison and Stefania are L. Z.-B.’s parents. They are recognized as L. Z.-B.’s

parents on his birth certificate and recognized as his parents under English law.

101. Section 301(g) of the INA is applicable to L. Z.-B.’s citizenship claim because

L. Z.-B. is the child of parents who were married to each other at the time of his birth, and one of

L. Z.-B.’s parents is a U.S. citizen. Section 309(a) of the INA is inapplicable to L. Z.-B.’s

citizenship claim because he is the child of married parents and was born during their marriage to

each other, and therefore is not a child born out of wedlock.

102. L. Z.-B. is a U.S. citizen at birth pursuant to Section 301(g) because he was born:

(1) outside the geographical limits of the United States and its outlying possessions, (2) to parents

one of whom is an alien, and the other a citizen of the United States, (3) to a parent 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 that parent

attained the age of fourteen years.

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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 married same-sex couples as “children

born out of wedlock,” and its consequent refusal to recognize L. Z.-B.’s

citizenship status on that basis, both on its face and as applied to Plaintiffs,

Allison Dawn Blixt, in her individual capacity, and on behalf of her son,

L. Z.-B.;

ii.

Declare L. Z.-B. to be a U.S. citizen at birth;

iii.

Permanently enjoin Defendants from continuing to discriminate against

Plaintiffs by classifying the children of married same-sex couples as

“children born out of wedlock,” and denying the children of married same-

sex 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.

Dated: New York, New York July 14, 2020
IMMIGRATION EQUALITY
/s/ Aaron C. Morris Aaron C. Morris (amorris@immigrationequality.org) 40 Exchange Place Suite 1300 New York, New York 10005-2744 (212) 714-2904

SULLIVAN & CROMWELL LLP
/s/ Mark A. Makar Mark A. Makar (N.J. Bar No. 244882017) (makarm@sullcrom.com) Theodore Edelman (edelmant@sullcrom.com) Jessica M. Klein (kleinj@sullcrom.com) Lauren M. Goldsmith (goldsmithl@sullcrom.com) 125 Broad Street New York, New York 10004-2498 (212) 558-4000
Elizabeth A. Cassady (cassadye@sullcrom.com) 1700 New York Avenue, NW, Suite 700 Washington, D.C., 20006-5215 (202) 956-7500
Attorneys for Plaintiffs

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Exhibit A

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Appendix A and the CA Internet page on DNA and Parentage Testing. See 7 FAM 1160 Appendix E for further guidance on adjudication.
NOTE: CA/FPPs CAWeb Intranet Relationship Fraud feature. CA/FPPs Intranet Fraud Digest includes other information about
relationship fraud. For example: Relationship Fraud in Yemen; Marriage Fraud Dangerous and Pervasive.
7 FAM 1140 APPENDIX E IN WEDLOCK AND OF WEDLOCK
(CT:CON-521; 07-08-2014) a. The term Birth in Wedlock has been consistently interpreted to mean birth
during the marriage of the biological parents to each other. b. This includes a child conceived before the marriage but born during the
marriage. c. To say a child was born "in wedlock" means that the childs biological parents
were married to each other at the time of the birth of the child. d. In the case of a marriage terminated by dissolution, death, or annulment, the
term of wedlock still includes a biological child conceived during the marriage and born within 300 days after termination of the marriage. e. If a married woman and someone other than her spouse have a biological child together, that child is considered to have been born out of wedlock. The same is true for a child born to a married man and a person other than his spouse.
7 FAM 1150 APPENDIX E VOID AND VOIDABLE MARRIAGES
(CT:CON-576; 05-05-2015) a. A marriage that does not conform to the laws of the country or state in which
it was performed generally is voidable and may be declared void by an appropriate authority, usually a court in the jurisdiction where the marriage occurred. b. Prior to such a declaration, the marriage usually is considered valid for all purposes. Even after a marriage is voided, the children's status usually is not affected. In the United States, for example, every state considers children of a void marriage to be legitimate.
https://fam.state.gov/searchapps/viewer?format=html&query=1140%20Appendix%20E&li... 1/17/2018

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Exhibit B

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Exhibit C

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Exhibit D

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Exhibit E

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