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Zzyym v. Pompeo

United States District Court, D. Colorado

September 19, 2018

DANA ALIX ZZYYM, Plaintiff,
v.
MICHAEL R. POMPEO, 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.

          ORDER

          R. Brooke Jackson Judge

         This matter is before the Court on the U.S. Department of State's motion seeking judgment on the administrative record on plaintiff Dana Zzyym's Administrative Procedure Act (“APA”) claims and dismissal of the claims contained within the remainder of Dana's Complaint. ECF No. 35. The case was administratively closed in November 2016 after I found that the administrative record did not show that the Department's decision-making process resulting in the gender policy was rational. ECF Nos. 55-56. I remanded the case to the Department for reconsideration of its policy. ECF No. 55. After reconsideration, the Department reaffirmed the gender policy in May 2017, and in June 2017 I reopened the case. The parties filed supplemental briefing with regard to the Department's motion seeking judgment on the administrative record and to dismiss. ECF Nos. 58, 65, 68.

         After considering the briefings, oral argument, and relevant law, the Court determines that (1) the Department's gender policy is arbitrary and capricious under the APA, and (2) the denial of Dana's passport application is in excess of the Department's statutory authority (Counts I and II). Because the APA grants Dana relief, the Court need not resolve the motion to dismiss on the constitutional claims or Dana's claim under the mandamus act (Counts III, IV, V).

         I. BACKGROUND

         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 (and has since been denied a second time). ECF No. 34 at 18; Administrative R. [Dkt. 64-01 through 64-44] [hereinafter “R.”], 79-80. Dana sued, contending that the State Department's denials of Dana's application and its underlying binary-only gender policy violate the APA, 5 U.S.C. § 706, as well as Dana's due process and equal protection rights under the Fifth Amendment of the U.S. Constitution. See generally ECF Nos. 1, 61 (Supplemental Complaint).

         Procedural History

         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 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.

         Dana subsequently brought suit against the Secretary of State, who is currently Michael Pompeo, [3] and Sherman Portell, the Director of the Colorado Passport Agency, in their official capacities on October 25, 2015. Id. The Complaint asserted (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 as intersex. 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 argument on that motion on July 20, 2016. ECF No. 51 (Transcript). On November 26, 2016, I ruled that the agency's decision-making process was not rational based upon the evidence in the record and remanded the case to the Department for reevaluation of its gender policy. Zzyym v. Kerry, 220 F.Supp.3d 1106, 1114 (D. Colo. 2016).

         In March 2017, while the Department was reevaluating the policy, Dana requested that the Department issue a full-validity or temporary passport bearing an “X” or other third-gender marking in the sex field in order for Dana to attend an international conference. R. 67-69. The Department refused to issue the temporary passport but noted that it would soon complete its review of the policy. R. 75-76. On May 1, 2017 the Department denied Dana's passport application for a second time and issued a memorandum in which it explained its decision to maintain the gender policy. R. 79-80, 82-90.

         This case was reopened at Dana's unopposed request, and as such the Department's motion seeking judgment on the administrative record on plaintiff's APA claims and dismissal of the claims contained within the remainder of Dana's Complaint is ripe once more. ECF No. 35. On July 6, 2017 Dana filed a supplemental complaint to reflect the May 2017 denial of Dana's passport application. ECF No. 61. As reflected in the supplemental complaint, Dana seeks “injunctive relief and a judicial declaration that the State Department has exceeded its authority under the Administrative Procedure Act (“APA”), 5 U.S.C. §706(2) and has violated the Fifth Amendment to the U.S. Constitution through agency actions which occurred after October 25, 2015.” ECF No. 61 at 2.

         In October 2017 Dana filed a brief regarding the Department's May 2017 decision to maintain the policy. ECF No. 65. The Department submitted the complete Administrative Record, ECF No. 64, and filed a response to Dana's brief. ECF No. 68. On June 29, 2018 the Court heard oral argument regarding these briefs and the Department's decision to maintain the policy. ECF No. 85. The case has now been fully briefed and is ripe for review.

         II. STANDARD OF REVIEW

         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 Mut. Ins. Co., 463 U.S. 29, 43 (1983)). That is, the court “must determine whether the agency considered all relevant factors and whether there has been a clear error of judgment.” Id.

         A court will set aside agency action “if the agency relied on factors which Congress has not intended for it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id. (citing State Farm, 463 U.S. at 43) (internal quotation marks omitted). Furthermore, “[b]ecause the arbitrary and capricious standard focuses on the rationality of an agency's decisionmaking process rather than on the rationality of the actual decision, it is well- established that an agency's action must be upheld, if at all, on the basis articulated by the agency itself.” Id. at 1575 (citing State Farm, 463 U.S. at 50) (internal quotation marks and brackets omitted).

         2. “Excess of ...


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