United States District Court, Northern District of Illinois, Eastern Division
October 13, 1999
GUILLERMO RIVERA, PLAINTIFF,
MADELEINE ALBRIGHT, SECRETARY OF THE DEPARTMENT OF STATE, DEFENDANT.
The opinion of the court was delivered by: Moran, Senior District Judge.
MEMORANDUM AND ORDER
Plaintiff, who is within the United States, seeks a declaration
of United States nationality pursuant to 8 U.S.C. § 1503(a). The
Secretary of State moves to dismiss or for summary judgment.
Plaintiff now also seeks an order in the nature of mandamus
ordering the issuance of a passport, although he concedes that
certain factual determinations must be made before such an order
can be issued. We deny the motion to dismiss or for summary
judgment and we dismiss the purported mandamus petition.
The procedural facts are not in dispute. Plaintiff filed a
passport application in 1993, giving his place of birth as
Laredo, Texas. The State Department responded by requesting that
he submit supporting documentation, with the advice that if it
did not hear from plaintiff within 30 days the application would
be filed without further action and any fee would be refunded.
Plaintiff did not respond. Accordingly, the State Department, on
June 9, 1993, sent him a form with two boxes checked:
1. It is assumed that you have abandoned your plans
to travel abroad since a reply to our correspondence
has not been received. Therefore, your request for
passport services is being filed without further
4. The United States Treasury will be requested to
refund directly to your [sic] any passport fee
submitted. according to law, the fee for the
execution of the application cannot be refunded.
(Please allow from six to eight weeks for the
processing of your refund.)
A State Department stamp was placed on plaintiff's 1993 passport
application as follows:
AUG 02, 1993
Plaintiff filed a second application on July 1, 1994, with some
documentation, and that was denied due to the inadequacy and
insufficiency of the documentation. In connection with that
application, plaintiff's attorney referred in a letter to the
first application being "rejected." On April 11, 1998, plaintiff
filed a third application. He was sent an undated and unsigned
notice on Chicago Passport Agency letterhead, which bore the
stamp "Approved," and stated "Your United States Passport Is
Enclosed." However, no passport was enclosed. The defendant
asserts that the third application was not approved but was still
under consideration, an assertion for which plaintiff claims
there is no evidentiary support. Defendant claims, and
plaintiff's counsel acknowledges being told, that the document
was sent out as a stratagem to prompt plaintiff's appearance at
the Passport Agency. The application was denied in a March 30,
1999 letter, which contained a similar explanation for the
earlier mailing. The letter of denial was well after this lawsuit
was filed. The application does not indicate that it was
Section 1503(a) provides that an action must be instituted
within five years "after the final administrative denial."
Defendant argues that the filing of the request in 1993 without
further action was a final administrative denial, more than five
years before suit was filed. We disagree.
Defendant relies on cases where the final administrative
determination that a person was not a United States citizen was
unmistakable. In Vance v. Terrazas, 444 U.S. 252, 256, 100
S.Ct. 540, 62 L.Ed.2d 461 (1980), Heuer v. United States
Secretary of State, 20 F.3d 424, 425 (11th Cir. 1994), cert.
denied, 513 U.S. 1014, 115 S.Ct. 573, 130 L.Ed.2d 490 (1994) and
Whitehead v. Haig, 794 F.2d 115-116 (3d Cir. 1986),
Certificates of Loss of Nationality had been issued (although
Heuer and Whitehead make clear that whether or not the
issuance of a Certificate is a final administrative denial of a
claim of citizenship for the purposes of § 1503(a) remains in
dispute). In Lee Wing Hong v. Dulles, 214 F.2d 753, 755 (7th
Cir. 1954) passports
were denied on the ground that the applicants were not who they
claimed to be. Ironically, in the latter two cases the
determination of jurisdiction was in response to the Secretary's
claim that denial of a passport was not a final administrative
denial for the purposes of § 1503(a).
Could plaintiff have sued on the basis of his 1993 application?
Yung Jin Teung v. Dulles, 229 F.2d 244, 246 (2d Cir. 1956)
(relied on by the Secretary) suggests not — a request for
documents which the applicant does not produce and does not say
he cannot produce, unless it is clear that the applicant cannot
produce them, is not a final administrative denial. Nor do we
have an issue of unreasonable delay, as in Chin Chuck Ming v.
Dulles, 225 F.2d 849, 852-53 (9th Cir. 1955). Whether plaintiff
could have sued, however, we need not decide. By the
Secretary's logic, if someone who unquestionably is a citizen
applies for a passport but fails to submit substantiating
documentation (let us say he forgot to bring them), he abandons
the application because his travel plans change, and then, six
years later, he applies for a passport, his status as a citizen
is solely a matter of administrative determination. We do not
believe the status of citizenship is so fragile. See Afroyim v.
Rusk, 387 U.S. 253, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967) and
Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630
(1958). When, as here, the Secretary notes that the failure to
follow up may be due to changes in travel plans, files the
application without further action (i.e. approval or denial),
and stamps the application "ABANDONED," we cannot, and the
applicant need not, construe that as a final administrative
denial based upon a denial that the applicant has a right to be
recognized as a United States citizen. Plaintiff's counsel's less
than artful reference to "rejected" in correspondence cannot
We see no basis for this court having the authority to order
the Secretary to issue a passport because of an unsigned, undated
letter marked "Approved," when it is clear that the application
was not marked approved by an appropriate official and no
passport issued. The plaintiff's suggestion that we should do so
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