United States District Court, D. Colorado
Brooke Jackson United States District Judge
Alix Zzyym is an intersex individual. 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.
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.
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”).
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.” 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.
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.
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
STANDARD OF REVIEW
Motion for Judgment on the Administrative Record.
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.
“Arbitrary or Capricious” Standard.
“[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.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 ...