United States District Court, D. Colorado
Brooke Jackson Judge
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.
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).
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 (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
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 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 the Secretary of State, who
is currently Michael Pompeo,  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
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.
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.
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.
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.
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”
“[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 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.”
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).
“Excess of ...