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Kaufman v. Gonzalez

June 16, 2006

JAMES J. KAUFMAN, PLAINTIFF,
v.
ALBERTO GONZALEZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION

Plaintiff, proceeding pro se, brought this action alleging that the defendants violated his constitutional and statutory rights by refusing to allow him to renounce his United States citizenship pursuant to 8 U.S.C. § 1481(a)(6). Plaintiff seeks a writ of mandamus compelling defendants to grant his request and declaratory relief.*fn1 The named defendants are Alberto R. Gonzalez, Attorney General of the United States, Michael Chertoff, Secretary, Department of Homeland Security, and Condoleezza Rice, the Secretary of State. The defendants have moved for dismissal. Because the Attorney General's decision regarding an application to renounce citizenship is a discretionary one, and sovereign immunity precludes plaintiff's claim, defendants' motion will be granted.

BACKGROUND

Plaintiff alleges that he is a United States national by virtue of his birth in this country.

Complaint ("Compl."), ¶ 40. According to the complaint, on July 25, 2004, plaintiff sent a letter to the Attorney General requesting that he be allowed to renounce his citizenship. The Attorney General did not respond to the letter. Id., ¶ 20.Plaintiff also sent the same letter to the United States Attorney in Madison, Wisconsin. Id., ¶ 21.*fn2 That office referred plaintiff to the Bureau of Immigration and Customs Enforcement ("BICE") in Milwaukee, Wisconsin. Id., ¶ 22.

Plaintiff sent his citizenship renunciation request to the BICE. Id., ¶ 23. In response, BICE informed him that the act of renouncing citizenship is a matter within the jurisdiction of the Department of State. Id., ¶¶ 24, 26. Plaintiff then sent his request to the State Department on January 3, 2005, but did not receive a response. Id., ¶ 27.

Plaintiff sent letters to the Attorney General on March 16, 2005 and April 20, 2005, requesting all information regarding expatriation and renunciation of citizenship. Id., ¶¶ 28, 31. The Attorney General did not respond to plaintiff's letters. Id., ¶ 28. Thereafter, plaintiff sent a Freedom of Information Act ("FOIA") request to the Department of Justice ("DOJ"). Plaintiff requested "[a]ny and all forms, procedures, information and other data available regarding renunciation of citizenship under 8 U.S.C. § 1481(a)(6)(under Attorney General's jurisdiction.)" Id., ¶ 30. The DOJ responded to the request by stating that the Department did not handle citizenship matters. Id., ¶ 34. Plaintiff then filed this action.

DISCUSSION

Pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure, defendants move to dismiss on the grounds of lack of subject matter jurisdiction and because plaintiff has failed to state a claim upon which relief can be granted.*fn3 A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing Fed. R. Civ. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)).

A court should not dismiss a complaint for failure to state a claim unless the defendant can show beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Warren v. District of Columbia, 353 F.3d 36, 37 (D.C. Cir. 2004); Kingman Park, 348 F.3d at 1040. Thus, in resolving a Rule 12(b)(1) or 12(b)(6) motion, the court must treat the complaint's factual allegations as true and draw all reasonable inferences therefrom in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003), cert. denied, 540 U.S. 1149 (2004); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003), cert. denied, 540 U.S. 1218 (2004); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Warren, 353 F.3d at 39; Browning, 292 F.3d at 242. In addition, the plaintiff has the burden of proving subject matter jurisdiction by a preponderance of the evidence. Felter v. Norton, 412 F. Supp. 2d 118, 122 (D.D.C. 2006)(citation and quotation omitted).

In resolving a motion to dismiss for failure to state a claim, pro se complaints are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Accordingly, pro se plaintiffs are not required to use specific legal terms or phrases, and are granted "the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)(citing Conley, 355 U.S. at 45-46).

I. STATUTORY BASIS FOR CLAIM

A citizen has the right to renounce his citizenship. Koos v. Holms, 204 F. Supp. 2d 1099, 1107 (W.D. Tenn. 2002). However, Congress has broad authority over the procedures and requirements which must be satisfied for an individual to renounce his nationality. Id. The statute applicable to plaintiff's claim, 8 U.S.C. § 1481(a)(6), provides that:

(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention ...


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