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Zzyym v. Kerry

United States District Court, D. Colorado

November 22, 2016

JOHN FORBES KERRY, in his official capacity as the Secretary of State; and SHERMAN PORTELL, in his official capacity as the Director of the Colorado Passport Agency for the United States Department of State, Defendants.


          R. Brooke Jackson United States District Judge

         Dana Alix Zzyym is an intersex individual.[1] ECF No. 1 at ¶1 (Complaint). In September 2014 Dana submitted an application for a United States passport. Id. at ¶34. Instead of checking the box labeled “M” for male or “F” for female on the application form, Dana instead wrote “intersex” below the “sex” category. ECF No. 34 at 2 (Administrative Record). By separate letter Dana informed the passport authorities that Dana was neither male nor female. Id. at 4. The letter requested “X” as an acceptable marker in the sex field to conform to International Civil Aviation Organization (“ICAO”) standards for machine-readable travel documents. ECF No. 1 at ¶35.

         It is undisputed that in every other respect Dana is qualified to receive a passport. However, the application was denied. ECF No. 34 at 18. Dana sued, contending that the State Department's denial of the application and its underlying binary-only gender policy violated the Administrative Procedures Act (“APA”), 5 U.S.C. § 706(2)(A), as well as plaintiff's due process and equal protection rights under the Fifth Amendment of the U.S. Constitution. See generally ECF No. 1.

         Administrative Record

         The Department issued its initial denial of Dana's passport application on September 24, 2014, explaining that “[t]he Department of State currently requires the sex field on United States passports to be listed as ‘M' or ‘F[, ]'” and that the Department would be “unable to fulfill your request to list your sex as ‘X.'” ECF No. 34 at 18. The Department nevertheless stated that it would issue Dana a passport listing gender as “female, ” which was the sex listed on the driver's license plaintiff submitted to prove Dana's identity during the application process. Id. Alternatively, the Department explained that it could issue Dana a “male” passport if Dana provided “a signed original statement on office letterhead from [Dana's] attending medical physician” in which the doctor attested to Dana's “new gender.” Id. at 19 (referencing 7 FAM 1300 App. M “Gender Change”).

         Dana chose neither. Instead, Dana submitted a letter to the Department on December 18, 2014 appealing the Department's decision. Id. at 29-30. Dana included with that appeal two sworn documents by physicians from the United States Department of Veterans Affairs Medical Center in Cheyenne, Wyoming (Dana served in the Navy) that verified Dana's sex as “intersex.”[2] Id. at 31-32. Dana also met with people at the Colorado Passport Agency (part of the State Department) and informed them that Dana “did not wish a passport to be issued . . . unless it could be issued showing the sex as ‘X.'” Id.

         The Department nevertheless denied Dana's appeal on December 29, 2014, informing Dana that the Department could not accommodate the request for the same reasons it stated in its initial denial letter. Id.; ECF No. 1 at ¶38. The Department, however, explained that Dana could still obtain a passport by reapplying and providing all required information on the passport application form-that is, checking either the box “M” for male or “F” for female. ECF No. 34 at 36. On February 26, 2015 Dana requested that the Department once again reconsider its decision or conduct a review hearing under 22 C.F.R. § 51.70(a). ECF No. 1 at ¶39. The Department denied both requests on April 10, 2015. Id. at ¶40.

         Procedural History

         Dana subsequently brought suit against defendants Secretary of State John Forbes Kerry and Sherman Portell, the Director of the Colorado Passport Agency, in their official capacities on October 25, 2015. Id. The Complaint asserts (1) that the Department's conduct was in violation of the APA because it was “arbitrary and capricious;” (2) that the conduct also violated the APA because it exceeded the Department's Congressionally-delegated authority; (3) that such action deprived plaintiff of due process in violation of the Fifth Amendment; (4) that it similarly deprived plaintiff of equal protection in violation of the Fifth Amendment; and (5) that the Court should issue a writ of mandamus to compel the Department to issue a passport accurately reflecting plaintiff's self-described sex. Id. at ¶¶48-95. Several months later on March 18, 2016 defendants filed a motion seeking judgment on the administrative record on plaintiff's APA claims and dismissal of the claims contained within the remainder of plaintiff's Complaint. ECF No. 35. The Court held oral arguments on that motion on July 20, 2016. ECF No. 51 (Transcript). That motion is the subject of this Order.[3]


         A. Motion for Judgment on the Administrative Record.

         Under the APA, a court must “hold unlawful and set aside agency action, findings, and conclusions” that it finds to be, among other things: (1) “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;” or (2) “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right[.]” 5 U.S.C. § 706(2)(A), (C). I discuss each standard below.

         1. “Arbitrary or Capricious” Standard.

         Typically, “[a]n agency's action is entitled to a presumption of validity, and the burden is upon the petitioner to establish the action is arbitrary or capricious.” Sorenson Commc'ns, Inc. v. F.C.C., 567 F.3d 1215, 1221 (10th Cir. 2009). Once agency action is challenged as arbitrary or capricious, a district court reviews that action under the APA as if it were an appellate court.[4]See Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir. 1994). As part of the appeal, the court “ascertain[s] whether the agency examined the relevant data and articulated a rational connection between the facts found and the decision made.” Id. at 1574 (citing Motor Vehicle Mfrs. Ass'n v. State Farm ...

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