Mize v. Pompeo

         IN THE UNITED STATES DISTRICT COURT                             
       FOR THE NORTHERN DISTRICT OF GEORGIA                              
                     ATLANTA DIVISION                                    


James Derek Mize and Jonathan                                            
Daniel Gregg, individually and on                                        
behalf of their minor child,     Case No. 1:19-cv-03331                  
S.M.-G.,                                                                 
                                 Michael L. Brown                        
                    Plaintiffs,  United States District Judge            

v.                                                                       

Michael R. Pompeo, in his official                                       
capacity as Secretary of State, and                                      
the U.S. Department of State,                                            

                    Defendants.                                          

________________________________/                                        

                     OPINION & ORDER                                     
    Plaintiffs James Derek Mize and Jonathan Daniel Gregg are U.S.       
citizens married to one another.  In 2018, they had a child using Gregg’s 
sperm, an anonymously donated egg, and a gestational surrogate.  The      
child, Plaintiff S.M.-G., was born in England, and that country issued a  
birth certificate listing Mize and Gregg as S.M.-G.’s parents.  The couple 
later applied for a U.S. passport and other proof of citizenship for their 
daughter.  The U.S. Department of State (“State Department”) denied       
S.M.-G.’s applications, concluding she was not a U.S. citizen at birth    
because she shares a biological relationship with only one of her citizen 

parents (Gregg) who had not been physically present in the United States  
for long enough.  In doing so, the State Department treated S.M.-G. as if 
she had been born out of wedlock.                                         

    Plaintiffs filed suit challenging that determination and arguing the 
State Department’s actions violate the Immigration and Nationality Act    

(“INA”), the Due Process Clause of the United States Constitution, and    
the  Administrative  Procedures  Act  (“APA”).    Defendants  Michael  R. 
Pompeo  and  the  State  Department  moved  to  dismiss  for  lack  of    

jurisdiction or, in the alternative, for failure to state a claim.  (Dkts. 32; 
63.)  The parties also cross-moved for partial summary judgment.  (Dkts.  
44;  50.)    Having  considered  the  issue,  the  Court  denies  Defendants’ 

jurisdictional motion, partially grants and partially denies Defendants’  
motion to dismiss for failure to state a claim, grants Plaintiffs’ summary 
judgment motion, and denies Defendants’ summary judgment motion.          
I.   Background                                                           
    A.   The INA                                                         

    “There  are  two  sources  of  citizenship,  and  two  only:  birth  and 
naturalization.”  Miller v. Albright, 523 U.S. 420, 423 (1998) (Stevens, J.).  
This  case  is  about  the  former.    The  Fourteenth  Amendment  confers 

citizenship  on  persons  “born  in  the  United  States.”    Id.  at  423–24.  
Persons born abroad “acquire citizenship by birth only as provided by     

Acts of Congress.”  Id. at 424.                                           
    The  INA  is  the  primary  Act  of  Congress  governing  birthright 
citizenship for foreign-born children.  It makes citizenship dependent    

upon the child’s parents.  Section 301 provides “[t]he general rules for  
acquiring  U.S.  citizenship,”  and  Section  309  provides  the  rules   
specifically  applicable  to  children  “born  out  of  wedlock.”    Sessions  v. 

Morales-Santana, 137 S. Ct. 1678, 1686–87 (2017); 8 U.S.C. §§ 1401,       
1409.  The result is that Section 301 is necessarily limited to children  
born in wedlock.  See Sessions, 137 S. Ct. at 1686–87 (Section 301 is     

“[a]pplicable  to  married  couples,”  whereas  Section  309  “pertains   
specifically to children with unmarried parents”).                        
    Subsections  (c)  and  (g)  of  Section  301  provide  the  rules  most 
relevant to our case.  They confer U.S. citizenship on:                   

    (c) a person born outside of the United States and its outlying      
    possessions of parents both of whom are citizens of the United       
    States and one of whom has had a residence in the United             
    States or one of its outlying possessions, prior to the birth of     
    such person;                                                         
    . . .                                                                
    (g) a person born outside the geographical limits of the United      
    States and its outlying possessions of parents one of whom is        
    an alien, and the other a citizen of the United States who,          
    prior to the birth of such person, was physically present in the     
    United  States  or  its  outlying  possessions  for  a  period  or   
    periods totaling not less than five years, at least two of which     
    were after attaining the age of fourteen years[.]                    

8 U.S.C. §§ 1401(c), (g).  Under these provisions, married parents who are 
both citizens pass citizenship to their child at birth so long as either  
parent had a residence in the United States (or an outlying possession)   
prior to the birth.  On the other hand, if only one married parent is a   
citizen, that couple passes citizenship to their child at birth only if the 
citizen parent has lived in the United States (or an outlying possession) 
for at least five years.                                                  
    In Section 309 (applicable to nonmarital children), the rules vary   
depending on whether citizenship is sought through the father or the      
mother.    If  citizenship  is  sought  through  the  father,  Section  309(a) 
incorporates  Section 301’s  requirements  and  adds  several  other      

requirements of its own:                                                  
    (a)  The  provisions  of  paragraphs  (c),  (d),  (e),  and  (g)  of 
    [Section 301] shall apply as of the date of birth to a person        
    born out of wedlock if—                                              

      (1) a blood relationship between the person and the father         
      is established by clear and convincing evidence,                   

      (2) the father had the nationality of the United States at         
      the time of the person’s birth,                                    

      (3) the father (unless deceased) has agreed in writing to          
      provide financial support for the person until the person          
      reaches the age of 18 years, and                                   

      (4) while the person is under the age of 18 years—                 

         (A)  the  person  is  legitimated  under  the  law  of  the     
         person’s residence or domicile,                                 

         (B) the father acknowledges paternity of the person in          
         writing under oath, or                                          

         (C)  the  paternity  of  the  person  is  established  by       
         adjudication of a competent court.                              

Id. § 1409(a).  If citizenship is sought through the mother, Section 309(c) 
describes the rules that apply:                                           
    Notwithstanding  the  provision  of  subsection  (a)  of  this       
    section, a person born, after December 23, 1952, outside the         
    United  States  and  out  of  wedlock  shall  be  held  to  have     
    acquired at birth the nationality status of his mother, if the       
    mother had the nationality of the United States at the time of       
    such person’s birth, and if the mother had previously been           
    physically present in the United States or one of its outlying       
    possessions for a continuous period of one year.                     
Id. § 1409(c).1                                                           
    B.   Defendants’ Interpretation of the INA                           
    The  State  Department  has  published  a  Foreign  Affairs  Manual  
(“FAM”)  that,  together  with  other  handbooks,  forms  “a  single,     
comprehensive,  and  authoritative  source  for  the  Department’s        

organization structures, policies, and procedures.”  (Dkts. 7 ¶ 24; 50-2  
¶ 42).  The FAM “convey[s] codified information to Department staff and   
contractors so they can carry out their responsibilities in accordance with 

statutory, executive and Department mandates.”  (Id.)  It is not, however, 
the product of notice-and-comment rulemaking, congressional action, or    

formal adjudication.  (Dkts. 7 ¶ 25; 50-2 ¶¶ 38, 40.)                     



1  The  Supreme  Court  recently  held  that  the  relaxed  residency     
requirement provided to citizen mothers in Section 309(c) violates citizen 
fathers’ rights to equal protection.  See Sessions, 137 S. Ct. at 1701.  As a 
result,  if  the  father  is  an  alien,  the  unwed  citizen  mother  must  be 
physically present in the United States for five years as set forth in    
Section 301(g) rather than the one year as set forth in Section 309(c).  Id. 
    The  FAM   describes  the  State  Department’s  policy  on  the      
acquisition of birthright citizenship by children born abroad.  The policy 

contains  two  key  principles  rooted  in  biology.    The  first  says  that 
foreign-born children cannot acquire birthright citizenship unless they   
share  “a blood  relationship  [with]  the  parent(s)  through  whom      

citizenship is claimed.”  8 FAM § 301.4-1(D)(1)(a); (see Dkt. 7 ¶¶ 27–28).  
The second says that children are “born out of wedlock” if their biological 

parents were unmarried at the time of birth; and that children are born   
“in wedlock” if their biological parents were married at the time of birth.  
8  FAM  §  304.1-2.    Based  on  these  principles,  the  State  Department 

applies Section 301 to marital children only if they share a biological   
relationship with both parents.  (Dkt. 7 ¶¶ 27–28.)  Otherwise, the State 
Department  applies  Section  309,  even  though  that  provision  is     

statutorily  limited  to  children  born  “out  of  wedlock.”    (Id.);  8 U.S.C. 
§ 1409.  The result is that, under the State Department’s interpretation, 
a child cannot acquire citizenship under Section 301(c) unless his or her 

parents  are  married  U.S.  citizens  and  he  or  she  shares  a  biological 
relationship with both parents.                                           
    Of course, that interpretation leaves out many children born to U.S. 
citizens through assisted reproductive technology (“ART”).  In 2014, the  

State Department modified its handbook to address that situation by       
providing that “a woman may establish a biological relationship with her  
child either by virtue of being the genetic mother (the woman whose egg   

was  used  in  conception)  or  the  gestational  mother  (the  woman  who 
carried  and  delivered  the  baby).”    8  FAM  §  301.4-1(D)(1)(c).    No 

amendment   to  the  INA  triggered  this  change;  the  State  Department 
simply altered its implementation of the statute.  As a result, when a U.S. 
citizen wife acts as a gestational mother for a donor egg fertilized by her 

citizen husband’s sperm, the State Department now considers that child    
to have been born in wedlock of two citizens.  8 FAM §304.3-1(a)   And,   
when two married women who are citizens decide one of them will carry     

an egg donated from the other and fertilized by an anonymous sperm        
donor, the State Department reaches the same conclusion — that child is   
considered to have been born in wedlock of two U.S. citizens.  8 FAM      

§304.3-1(b).  In this latter instance, the State Department determines the 
child has a biological relationship with two women and totally ignores    
the  citizenship  of  the  sperm  donor.    But,  not  two  dads.    The  State 
Department says two married men can never have a child abroad that it     
considers having been born in wedlock.                                    

    C.   Defendants’ Application of the INA to S.M.-G.                   
    Mize and Gregg have been U.S. citizens since birth.  (Dkts. 7 ¶¶ 10– 
11; 50-2 ¶¶ 1–2.)  Mize was born in the United States and has lived here  

ever since.  (Dkts. 7 ¶ 10; 45 ¶¶ 3–12.)  Gregg was born in the United    
Kingdom but moved to the United States in 2014.  (Dkts. 7 ¶¶ 10, 39;      
46 ¶¶ 3–8.)  The two met in 2014 and got married about a year later.      

(Dkts. 7 ¶¶ 39–40; 46 ¶¶ 5, 7.)  When they decided to have a child using  
ART, they arranged for an anonymously donated egg to be fertilized with   
Gregg’s sperm and implanted into a gestational surrogate who was a        

friend of theirs and lived in England.  (Dkts. 7 ¶¶ 41–42; 50-2 ¶¶ 7, 9.)  
The surrogate gave birth to Mize and Gregg’s daughter in England in       

2018.  (Dkts. 7 ¶¶ 42–45; 50-2 ¶¶ 9–10.)                                  
    In March 2019, a British court ordered that S.M.-G. “is to be treated 
in law as the child of the parties to a marriage, Jonathan Daniel Gregg   

and James Derek Mize.”  (Dkts. 7 ¶ 48; 50-2 ¶ 13.)  The General Register  
Office  of  England  also  issued  a  birth  certificate  identifying  S.M.-G.’s 
parents as Mize and Gregg.  (Dkts. 7 ¶ 49; 50-2 ¶ 14.)  This reflected the 
understanding and intent of those involved in the ART process — Mize,     
Gregg, the surrogate, and the surrogate’s husband — who all agreed        

before S.M.-G.’s conception that “Mize and Gregg would be the intended    
and only parents of any child born through the ART process.”  (Dkt. 50-2  
¶ 8; see Dkt. 7 ¶ 41.)                                                    

    In April 2019, Plaintiffs went to the U.S. Embassy and applied for   
a Consular Report of Birth Abroad (“CRBA”) and a U.S. passport for        

S.M.-G.  (Dkts. 7 ¶ 52; 50-2 ¶ 23.)  Both documents are proof of U.S.     
citizenship.  (Dkt. 7 ¶ 26); 22 U.S.C. § 2705.  The Embassy staff asked   
Mize and Gregg whose sperm was used to conceive S.M.-G.  (Dkts. 7 ¶ 52;   

50-2 ¶¶ 25–26.)  Mize and Gregg explained the ART process, including      
telling the staff that Gregg had been the sperm provider.  (Id.)  The staff 
then evaluated S.M.-G.’s applications under INA Sections 309(a) and       

(by incorporation) 301(g), which together govern children “born out of    
wedlock” to one citizen parent and one alien parent.  (Dkts. 7 ¶ 54; 50-2 
¶ 29.)  The staff did this — instead of applying Section 301(c), which    

governs children with two married citizen parents — because S.M.-G.       
shares a biological relationship with Gregg but not Mize.  (Dkts. 50 at 7; 
50-2  ¶  31.)    The  staff  concluded  that  S.M.-G.  is  not  a  citizen  under 
Sections 309(a) and 301(g) and denied her applications for a CRBA and     
passport.  (Dkts. 7 ¶ 54; 7-1; 45-12; 50-2 ¶ 35.)2                        

    There is no dispute that S.M.-G. does not qualify for citizenship    
under  the  INA   provisions  applied  by  the  State  Department         
(Sections 309(a) and 301(g)) as Gregg had not lived in the United States  

for five years prior to their daughter’s birth.  But Plaintiffs say that — 
inasmuch as they are married to one another, are S.M-G.’s parents, and    

are both U.S. citizens — their daughter is a citizen under Section 301(c) 
and that the State Department should have applied that provision rather   
than the “born out of wedlock” provision.                                 

    D.   Procedural History                                              
    Plaintiffs  filed  this  lawsuit  in  July  2019,  asserting  four  claims 
against  Defendants.    (Dkts.  1;  7.)    Count  1  seeks  a  declaration  that 

S.M.-G.  “is a national  and  citizen  of  the  United  States  who  acquired 
citizenship at birth by operation of Section 301(c) of the INA.”  (Dkt. 7 
¶ 69.)  Count 2 asserts a substantive due process claim under the Fifth   



2 Specifically, the State Department found that S.M.-G.’s only “biological 
U.S. citizen parent [Gregg] was not physically present in the United      
States for five years prior to the child’s birth . . . as required under the 
provisions of section 301(g) of [INA].”  (Dkt. 7-1.)                      
Amendment.  Specifically, Plaintiffs say Defendants’ refusal to recognize 
S.M.-G.’s citizenship (1) “violated Mize and Gregg’s fundamental right to 

marry,” including their right to the marriage-linked benefits available to 
opposite-sex spouses; and (2) “violated all Plaintiffs’ fundamental rights 
to  be  recognized  as  a  family,  including  the  rights  to  family  privacy, 

integrity, and association.”  (Dkts. 7 ¶¶ 70–81; 35-1 at 12.)  Count 3    
asserts a Fifth Amendment equal protection claim on the grounds that      

Defendants (1) regard the children of same-sex spouses as “born out of    
wedlock”; (2) prevented Mize and Gregg from conferring citizenship on     
their  child  under  Section  301(c)  because  of  their  sex  and  sexual 

orientation; and (3) prevented S.M.-G. from acquiring citizenship under   
Section 301(c) “because of the circumstances of [her] birth and because of 
[her]  parents’  sexual  orientation,  sex,  and/or  status  as  a  same-sex 

married couple.”  (Dkt. 7 ¶¶ 84–88.)  Count 4 asserts an APA claim for    
judicial review of Defendants’ denial of S.M.-G.’s applications.  (Id. ¶ 92.)   
    The complaint requests four forms of relief:  (1) a declaration that 

S.M.-G. is a U.S. citizen under Section 301(c); (2) an order requiring    
Defendants to issue a U.S. passport to S.M.-G.; (3) a declaration that    
Defendants’ “policy and practice” towards the children of married same-   
sex couples is unconstitutional and a violation of the INA; and (4) a     
permanent  injunction  enjoining  Defendants  from  continuing  to  apply 

that policy and practice.  (Id. at 31–32.)                                
    In November 2019, Defendants moved to dismiss the complaint for      
failure to state a claim.  (Dkt. 32.)  The parties then cross-moved for   

summary judgment on Plaintiffs’ INA claim (Count 1).  (Dkts. 44; 50.)     
A few  months  later  and  following  oral  argument,  Defendants  filed  a 

motion  to  dismiss  for  lack  of  subject  matter  jurisdiction.    (Dkt.  63.)  
Defendants  claim  this  case  is  now  moot  because,  under  8 U.S.C.   
§ 1431(a), S.M.-G. automatically became a naturalized U.S. citizen when   

she obtained lawful permanent resident status earlier this year.          
II.  Subject Matter Jurisdiction                                          
    A.   Legal Standard                                                  

    “[A]  motion  to  dismiss  for  lack  of  subject  matter  jurisdiction 
pursuant to Fed. R. Civ. P. 12(b)(1) can be based upon either a facial or 
factual  challenge  to  the  complaint.”   McElmurray  v.  Consol.  Gov’t  of 

Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007).  “A facial   
attack on the complaint requires the court merely to look and see if the  
plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and 
the allegations in his complaint are taken as true for the purposes of the 
motion.”  Id.  “Factual attacks, on the other hand, challenge the existence 

of subject matter jurisdiction in fact, irrespective of the pleadings, and 
matters  outside  the  pleadings,  such  as  testimony  and  affidavits  are 
considered.”  Id.  Defendants lodge a factual attack here because they say 

“events occurring after [Plaintiffs] initiated this action have rendered it 
moot.”  Thomas v. Branch Banking & Tr. Co., 32 F. Supp. 3d 1266, 1268     

(N.D. Ga. 2014).                                                          
    Article III of the Constitution limits the subject matter jurisdiction 
of federal courts to “actual, ongoing cases or controversies.”  Checker Cab 

Operators, Inc. v. Miami-Dade Cty., 899 F.3d 908, 915 (11th Cir. 2018).   
To invoke this jurisdiction, “a plaintiff must show (1) it has suffered an 
injury in fact that is (a) concrete and particularized and (b) actual or  

imminent,  not  conjectural  or  hypothetical;  (2)  the  injury  is  fairly 
traceable to the challenged action of the defendant; and (3) it is likely, as 
opposed to merely speculative, that the injury will be redressed by a     

favorable decision.”  Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. 
(TOC), Inc., 528 U.S. 167, 180–81 (2000).  The required injury “must be   
extant at all stages of review, not merely at the time the complaint is   
filed.”  Checker Cab Operators, 899 F.3d at 915.  “If the injury ceases, or 
is rendered unamenable to judicial relief, then the case becomes moot and 

thereby incapable of further Article III adjudication.”  Id.3             
    “Thus,  even  a  once-justiciable  case  becomes  moot  and  must  be 
dismissed when the issues presented are no longer live or the parties lack 

a legally cognizable interest in the outcome.”  Flanigan’s Enters., Inc. of 
Ga. v. City of Sandy Springs, 868 F.3d 1248, 1255 (11th Cir. 2017).  Put  

another way, “[i]f events that occur subsequent to the filing of a lawsuit 
or  an  appeal  deprive  the  court  of  the  ability  to  give  the  plaintiff  or 
appellant  meaningful  relief,  then  the  case  is  moot  and  must  be  

dismissed.”  Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001); 
see Flanigan’s Enters., 868 F.3d at 1264 (“[A] previously justiciable case 
is moot when the requested relief, if granted, would no longer have any   

practical effect on the rights or obligations of the litigants.”).  “[D]ismissal 

3 The “case or controversy” requirement abides the limited role of the    
courts in a democratic society.  Warth v. Seldin, 422 U.S. 490, 498, (1975).  
“All of the doctrines that cluster about Article III—not only standing but 
mootness, ripeness, political question, and the like—relate in part, and  
in different though overlapping ways, to an idea, which is more than an   
intuition  but  less  than  a  rigorous  and  explicit  theory,  about  the 
constitutional  and  prudential  limits  to  the  powers  of  an  unelected, 
unrepresentative judiciary in our kind of government.”  United States v.  
Rivera, 613 F.3d 1046, 1050 (11th Cir. 2010).                             
is required because mootness is jurisdictional.”  Al Najjar, 273 F.3d at  
1336.  “The burden of establishing mootness rests with the party seeking  

dismissal.”  World Wide Supply OU v. Quail Cruises Ship Mgmt., 802        
F.3d 1255, 1259 (11th Cir. 2015).                                         
    B.   Discussion                                                      

    The parties agree that S.M.-G. is now a naturalized U.S. citizen     
under 8 U.S.C. § 1431(a).  (Dkts. 63 at 1; 74 at 5.)  Defendants say this 

“resolves Plaintiffs’ alleged harms” and moots the case.  (Dkt. 63 at 2.)  
The Court disagrees.                                                      
    “Plaintiffs have relied upon the same underlying injuries for all of 

their claims.”  (Dkt. 69; see Dkt. 74 at 16, 41.)  Those injuries include 
stigmatization  based  on  Defendants’  failure  to  recognize  S.M.-G.’s 
birthright  citizenship  under  Section  301(c)  of  the  INA.    (Id.)    In 

particular, Plaintiffs claim Defendants “stigmatize[d] and demean[ed]     
the Mize-Gregg family [and each of its members] by refusing to recognize  
and give effect to Mr. Mize and Mr. Gregg’s marriage, denying the reality 

of the father-daughter relationship between [S.M.-G.] and both of her     
fathers, labeling S.M.-G. a non-marital child, . . . singling the family out 
for government-sponsored discrimination, . . . [and] unlawfully den[ying] 
that the Mize-Gregg family is a family at all.”  (Dkt. 7 ¶ 8; see id. ¶¶ 6, 60.)  
The fact that S.M.-G. is now a naturalized citizen under another statute  

changes none of these things.  Defendants still insist S.M.-G. is not a   
citizen under Section 301(c) of the INA for the same reasons as before.   
And any stigmatization flowing from that determination necessarily still  

exists.  Because S.M.-G.’s naturalization does not erase Plaintiffs’ alleged 
stigmatic injury, it cannot moot the case.                                

    To  the  extent  Defendants  claim  Plaintiffs’  “stigma  is  not  a 
cognizable Article III injury,” (Dkt. 67 at 12), that is a standing argument 
rather than a mootness argument because it does not depend on anything    

that  has  happened  since  this  lawsuit  was  filed.    See  A&M  Gerber 
Chiropractic LLC v. GEICO Gen. Ins. Co., 925 F.3d 1205, 1213 n.2 (11th    
Cir. 2019) (“The Supreme Court has described mootness as merely the       

doctrine of standing set in a time frame: The requisite personal interest 
that must exist at the commencement of the litigation (standing) must     
continue  throughout  its  existence  (mootness).”).    But  however  the 

argument  is  characterized,  and  whether  or  not  it  was  appropriately 
asserted in a mootness motion, it is wrong on the merits.  “[S]tigmatic   
injury, though not sufficient for standing in the abstract form . . . , is 
judicially cognizable to the extent that [plaintiffs] are personally subject 
to discriminatory treatment.”  Allen v. Wright, 468 U.S. 737, 757 n.22    

(1984), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control 
Components, Inc., 572 U.S. 118 (2014).  “A plaintiff alleging a stigmatic 
injury based on discrimination must point to some concrete interest with  

respect  to  which  he  [or  she]  is  personally  subject  to  discriminatory 
treatment and that interest must independently satisfy the causation      

requirement of standing doctrine.”  Aaron Private Clinic Mgmt. LLC v.     
Berry, 912 F.3d 1330, 1338 (11th Cir. 2019).                              
    Heckler v. Mathews, 465 U.S. 728 (1984), offers a good example of a  

judicially  cognizable  stigmatic  injury.    That  case  involved  a  statute 
allowing men to obtain spousal benefits only if they were economically    
dependent on their wives.  Women, on the other hand, could obtain the     

same benefits without showing economic dependence on their husbands.      
Plaintiff, a married man, applied for benefits under the statute.  His    
application was denied because he was not economically dependent on       

his wife.  Id. at 735.  He sued, seeking a declaratory judgment that the  
statute violated the Due Process Clause of the Fifth Amendment.  Id.      
The  Court  held  that  he  had  standing  to  seek  this  prospective  relief 
because  he  was  “personally  denied  equal  treatment,”  which  entailed 
“serious non-economic injuries” including stigmatization.  Id. at 738–40.  

The Court stressed that “because [plaintiff] personally has been denied   
benefits that similarly situated women receive, his is not a generalized  
claim  of  the  right  possessed  by  every  citizen,  to  require  that  the 

Government be administered according to law.”  Id. at 740 n.9.4           
    Allen v. Wright, 468 U.S. 737 (1984), offers a useful counterpoint   

because it involves the kind of “generalized” stigmatic injury the Heckler 
Court warned against.  The plaintiffs in Allen were parents of black      
children who attended public school.  They sued the Internal Revenue      

Service (“IRS”), claiming it was granting tax-exempt status to racially   
discriminatory private schools.  Allen, 468 U.S. at 739.  Plaintiffs sought 
declaratory and injunctive relief.  Id. at 746–47.  Plaintiffs’ children had 

never applied to, or been excluded from, private school.  Id. at 746.  Nor 
was there any allegation that they ever would.  Id.  But Plaintiffs claimed 
they  had  standing  because  the  IRS’s  favorable  treatment  of  racially 


4 The Heckler Court upheld standing even though (1) the court could not   
actually grant spousal benefits to plaintiff if he prevailed (all it could do 
was withdraw those benefits from similarly situated women), and (2) the   
court ultimately denied plaintiff’s claim on the merits (finding no equal 
protection violation).  Heckler, 465 U.S. at 738–39, 744–51.              
discriminatory private schools caused plaintiffs the kind of “stigmatic   
injury, or denigration, suffered by all members of a racial group when the 

Government discriminates on the basis of race.”  Id. at 754.              
    The Court held that this “abstract stigmatic injury” was insufficient 
because plaintiffs did not show they suffered it “as a direct result of   

having  personally  been  denied  equal  treatment.”    Id.  at  755–56.    If 
plaintiffs’ injury were cognizable, the court said, “[a] black person in  

Hawaii  could  challenge  the  grant  of  a  tax  exemption  to  a  racially 
discriminatory school in Maine” — a result that “would transform the      
federal courts into no more than a vehicle for the vindication of the value 

interests of concerned bystanders.”  Id. at 756.  Citing Heckler, the Court 
reiterated that “stigmatic injury . . . . accords a basis for standing only to 
those  persons  who  are  personally  denied  equal  treatment  by  the   

challenged discriminatory conduct.”  Id. at 755.5                         

5 The Court also cited other cases in which “plaintiffs alleged official  
racial discrimination” but in which “standing was denied . . . because the 
plaintiffs were not personally subject to the challenged discrimination.”  
Allen, 468 U.S. at 755.  In Moose Lodge No. 107 v. Irvis, 407 U.S. 163    
(1972), for example “the Court held that the plaintiff had no standing to 
challenge a club’s racially discriminatory membership policies because    
he had never applied for membership.”  Allen, 468 U.S. at 755.  Likewise, 
in O’Shea v. Littleton, 414 U.S. 488 (1974), “the Court held that the     
    Our  case  is  more  like  Heckler  than  Allen  because  Plaintiffs’ 
stigmatic injury flows from alleged discriminatory treatment to which     

Plaintiffs were personally subject.  Unlike Allen, Plaintiffs here are not 
mere “bystanders” concerned about Defendants’ treatment of others with    
whom   they  share  no  connection  beyond  common  membership  in  a     

disfavored group.  Allen, 468 U.S. at 756.  That is, Plaintiffs do not allege 
“dignitary harm stemming from the mere knowledge that discriminatory      

conduct  is”  happening  to  someone  else.    Carello  v.  Aurora  Policemen 
Credit Union, 930 F.3d 830, 834 (7th Cir. 2019).                          
    Instead, Defendants rejected Plaintiffs’ applications for citizenship 

documents, declined to recognize S.M.-G. as a citizen from birth, and     
denied Mize and Gregg’s attempt to confer citizenship on their child —    
and  did  so  allegedly  because  S.M.-G.  is  the  child  of  same-sex  male 

parents.    See  Church  of  Scientology  Flag  Serv.  Org.,  Inc.  v.  City  of 
Clearwater,  2 F.3d  1514,  1525  (11th  Cir.  1993)  (recognizing  that  
“stigmatic injury associated with invidious official conduct is cognizable 



plaintiffs  had  no  standing  to  challenge  racial  discrimination  in  the 
administration of their city’s criminal justice system because they had   
not alleged that they had been or would likely be subject to the challenged 
practices.”  Allen, 468 U.S. at 755.                                      
for  standing  purposes  if  the  plaintiff  is  directly  affected”  (emphasis 
added)).  Plaintiffs further allege that these actions — both directed at 

and felt by them personally — “stigmatize[d] and demean[ed] the Mize-     
Gregg family” in a variety of ways.  (Dkt. 7 ¶ 8; see id. ¶¶ 6, 60.)      
    In sum, Plaintiffs say Defendants prevented them from acquiring      

or conferring birthright citizenship, and that this “personally subject[ed]” 
them to discrimination and stigmatization.  They have alleged an actual,  

palpable stigmatic injury resulting from Defendants’ conduct rather than  
merely a theoretical or abstract injury.  That is enough for Article III  
standing.  See, e.g., Bostic v. Schaefer, 760 F.3d 352, 372 (4th Cir. 2014) 

(finding that plaintiffs’ “stigmatic injuries are legally cognizable” because 
they  flowed  from  allegedly  discriminatory  laws  that  impacted  them 
personally, including by hindering their hospital visits and preventing   

them  from  adopting  a  child).    Defendants’  mootness  motion  is  thus 
denied.                                                                   
III.  Legal Standards for the Merits Motions                              

    A.   Motion to Dismiss for Failure to State a Claim                  
     “To  survive  a  motion  to  dismiss,  a  complaint  must  contain  
sufficient factual matter, accepted as true, to state a claim to relief that 
is plausible on its face.”  Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).  
“A claim has facial plausibility when the plaintiff pleads factual content 

that allows the court to draw the reasonable inference that the defendant 
is liable for the misconduct alleged.”  Id.  This requires more than a “mere 
possibility of misconduct.”  Id. at 679.  A plaintiff’s well-pled allegations 

must “nudge[] [his] claims across the line from conceivable to plausible.”  
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).                     

    In making this plausibility determination, the court must “assume    
that  the  factual  allegations  in  the  complaint  are  true  and  give  the 
plaintiff[]  the  benefit  of  reasonable  factual  inferences.”    Wooten  v. 

Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir. 2010).  The court     
need not credit “conclusory allegations, unwarranted deductions of facts  
or  legal  conclusions  masquerading  as  facts.”    Jackson  v.  BellSouth 

Telecomms., 372 F.3d 1250, 1263 (11th Cir. 2004); see Twombly, 550 U.S.   
at  555  (“labels  and  conclusions”  are  disregarded,  and  “formulaic  
recitation[s] of the elements of the cause of action” are insufficient).                        

    B.   Motion for Summary Judgment                                     
    Rule 56 of the Federal Rules of Civil Procedure provides that a court 
“shall grant summary judgment if the movant shows that there is no        
genuine dispute as to any material fact and the movant is entitled to     
judgment as a matter of law.”  Fed. R. Civ. P. 56(a).  A fact is material if 

“it might affect the outcome of the suit under the governing law.”  W. Grp. 
Nurseries, Inc. v. Ergas, 167 F.3d 1354, 1360 (11th Cir. 1999).  A factual 
dispute is genuine “if the evidence is such that a reasonable jury could  

return a verdict for the nonmoving party.”  Id. at 1361.                  
    The party moving for summary judgment bears the initial burden       

of showing a court, by reference to materials in the record, that there is 
no genuine dispute as to any material fact.  Hickson Corp. v. N. Crossarm 
Co., 357 F.3d 1256, 1260 (11th Cir. 2004).  The nonmoving party then has  

the burden of showing that summary judgment is improper by coming         
forward with “specific facts” showing a genuine dispute.  Matsushita Elec. 
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).  Ultimately,  

there is no “genuine issue for trial” when “the record taken as a whole   
could not lead a rational trier of fact to find for the non-moving party.”  
Id.  “[T]he mere existence of some alleged factual dispute between the    

parties  will  not  defeat  an  otherwise  properly  supported  motion  for 
summary judgment; the requirement is that there be no genuine issue of    
material fact.”  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48.   
    Throughout  its  analysis,  the  court  must  “resolve  all  reasonable 
doubts about the facts in favor of the non-movant, and draw all justifiable 

inferences in his or her favor.”  Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 
1115 (11th Cir. 1993).  “It is not the court’s role to weigh conflicting  
evidence  or  to  make  credibility  determinations;  the  non-movant’s   

evidence is to be accepted for purposes of summary judgment.”  Mize v.    
Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996).           

IV.  Plaintiffs’ INA Claim (Count 1)                                      
    In Count 1, Plaintiffs seek a declaration that S.M.-G. is a U.S.     
citizen  under  Section  301(c)  of  the  INA.    That  provision  confers 

citizenship at birth on “a person born outside of the United States and its 
outlying possessions of parents both of whom are citizens of the United   
States and one of whom has had a residence in the United States or one    

of its outlying possessions, prior to the birth of such person.”  8 U.S.C. 
§ 1401(c).    There  is  no  dispute  that  S.M.-G.  is  a  citizen  under  this 
language unless it requires her to share a biological relationship with   

both  citizen  parents.    (See  Dkt.  53  at  3.)    Defendants  say  that 
Section 301(c) does require such a relationship (the “Biological Reading”).  
Plaintiffs disagree (the “Non-Biological Reading”).  The Court concludes  
that  the  Non-Biological  Reading  must  prevail  under  the  doctrine  of 
constitutional avoidance.                                                 

    A.   Constitutional Avoidance                                        
    The doctrine of constitutional avoidance is a “cardinal principle” of 
statutory interpretation.  Jennings v. Rodriguez, 138 S. Ct. 830, 842     

(2018).  It provides that, “if an otherwise acceptable construction of a  
statute  would  raise  serious  constitutional  problems,  and  where  an 
alternative interpretation of the statute is fairly possible, [courts] are 

obligated to construe the statute to avoid such problems.”  I.N.S. v. St. 
Cyr, 533 U.S. 289, 299–300 (2001).  “This canon is followed out of respect 
for Congress, which we assume legislates in the light of constitutional   

limitations.”    Almendarez-Torres  v.  United  States,  523  U.S.  224,  238 
(1998).  “The doctrine seeks, in part, to minimize disagreement between   

the  branches,”  id.,  and  “reflects  the  prudential  concern  that     
constitutional issues not be needlessly confronted,” Edward J. DeBartolo  
Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485   

U.S. 568, 575 (1988).                                                     
    The  problematic  construction  need  only  “give  rise  to  serious 
constitutional  questions,”  N.L.R.B.  v.  Catholic  Bishop  of  Chicago, 
440 U.S. 490, 501 (1979), “grave doubts,” Chapman v. United States, 500   
U.S.  453,  464  (1991),  or  a  “serious  likelihood”  of  unconstitutionality, 

Almendarez-Torres,  523  U.S.  at  238.    A   finding  of  actual        
unconstitutionality  is  not  required.    United  States  v.  Jin  Fuey  Moy, 
241 U.S. 394, 401 (1916) (“A statute must be construed, if fairly possible, 

so as to avoid not only the conclusion that it is unconstitutional, but also 
grave  doubts  upon  that  score.”).    “Indeed,  one  of  the  canon’s  chief 

justifications is that it allows courts to avoid the decision of constitutional 
questions.”    Clark  v.  Martinez,  543  U.S.  371,  381  (2005);  see  Cable 
Holdings of Ga., Inc. v. McNeil Real Estate Fund VI, Ltd., 953 F.2d 600,  

610 (11th Cir. 1992) (“[T]he canon of statutory interpretation . . . seeks to 
avoid constitutional difficulties”).                                      
    If  one  construction  of  a  statute  raises  serious  constitutional 

questions, courts must adopt an alternative construction so long as it is 
“plausible,” “fairly possible,” or “reasonable.”  Jennings, 138 S. Ct. at 842; 
Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 563 (2012) (Roberts, 

C.J.).  This may require courts to adopt a particular construction “even if 
[they] might prefer another one.”  Friends of Everglades v. S. Fla. Water 
Mgmt. Dist., 570 F.3d 1210, 1221 (11th Cir. 2009).  That is so because    
“[d]eciding how best to construe statutory language is not the same thing 
as deciding whether a particular construction is within the ballpark of   

reasonableness.”  Id.  Ultimately, “[t]he question is not whether [a saving 
construction] is the most natural interpretation . . . , but only whether it 
is a fairly possible one.”  Sebelius, 567 U.S. at 563 (Roberts, C.J.); see 

Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 18 (2013) (under 
the constitutional avoidance doctrine, courts “have to determine whether  

[a saving] interpretation, [even if] plainly not the best reading, is at least 
a possible one”); Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 134 
(1974) (“[W]hen one admissible construction will preserve a statute from  

unconstitutionality and another will condemn it, the former is favored    
even if language, and arguably the legislative history point somewhat     
more strongly in another way.”).                                          

    Nonetheless,  courts  “cannot  press  statutory  construction  to  the 
point of disingenuous evasion even to avoid a constitutional question.”   
Salinas v. United States, 522 U.S. 52, 60 (1997).  The statute must be    

genuinely ambiguous, or “susceptible of more than one construction,”      
“after the application of ordinary textual analysis.”  Jennings, 138 S. Ct. 
at 842; United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483,   
494 (2001); Almendarez-Torres, 523 U.S. at 238.  If a constitutionally    
permissible construction is “foreclosed” by the statutory text, or “plainly 

contrary to the intent of Congress,” the court cannot adopt it.  Edward J. 
DeBartolo, 485 U.S. at 575, 588; see Aptheker v. Sec’y of State, 378 U.S. 
500,  515  (1964)  (“[A]lthough  this  Court  will  often  strain  to  construe 

legislation so as to save it against constitutional attack, it must not and 
will not carry this to the point of perverting the purpose of a statute or 

judicially rewriting it.”).                                               
    B.   The   Biological   Reading    Would    Raise   Serious          
         Constitutional Questions                                        
    “[T]he Constitution entitles same-sex couples to civil marriage on   
the same terms and conditions as opposite-sex couples.”  Pavan v. Smith,  
137 S. Ct. 2075, 2076 (2017).  This includes equal access not just to the 

“symbolic recognition” of marriage but also to the “material benefits” that 
come with it.  Obergefell v. Hodges, 576 U.S. 644, 669 (2015).  These     

benefits arise in numerous areas, including “taxation; inheritance and    
property rights; rules of intestate succession; spousal privilege in the law 
of evidence; hospital access; medical decision-making authority; adoption 

rights; the rights and benefits of survivors; birth and death certificates; 
professional  ethics  rules;  campaign  finance  restrictions;  workers’  
compensation benefits; health insurance; and child custody, support, and  
visitation rules.”  Id. at 670.  Ultimately, the government cannot “den[y] 

married same-sex couples access to the constellation of benefits that the 
State has linked to marriage,” whatever those benefits might be.  Pavan,  
137 S. Ct. at 2078.                                                       

    Pavan  illustrates  this  principle  well.    It  involved  an  Arkansas 
statute that required the state to list a mother’s husband on her child’s 

birth certificate, regardless of the husband’s biological relationship with 
the child.  If the mother was in a same-sex marriage, however, the state  
was not required to list her wife on the birth certificate.  The Court said 

this “disparate treatment” was unconstitutional because the “right . . . to 
be listed on a child’s birth certificate” was (1) a benefit, (2) conditioned on 
marriage, (3) that was unavailable to married same-sex couples.  Id. at   

2078–79.  The Court stressed that the “State may not exclude same-sex     
couples from [marriage-linked] rights, benefits, and responsibilities to  
which [they], no less than opposite-sex couples, must have access.”  Id. at 

2078.                                                                     
    In  re  Gestational  Agreement,  449  P.3d  69  (Utah  2019),  offers 
another  useful  example  of  the  constitutional  right  to  equal  marital 
benefits  for  same-sex  couples.6    That  case  involved  a  statute  which 
authorized gestational surrogacy agreements only if certain conditions    

were  met.    Two  conditions  were  that  (1)  the  intended  parents  were 
married  and  (2) “the intended  mother  is  unable  to  bear  a  child  or  is 
unable to do so without unreasonable risk.”  Id. at 72, 82 & n.69.  The   

court  said  the  statute  was  unconstitutional  under  Pavan  because   
(1) the ability to obtain a gestational agreement was a “benefit”; (2) the 

statute “unquestionably linked” that benefit to marriage by making it     
unavailable to unmarried couples; and (3) it was “impossible for married  
same-sex male couples” to obtain this benefit because their relationships 

could never include an “intended mother” (i.e., a “female parent”).  Id. at 
80, 82.  The court reached this conclusion even though the benefit was    
available  to  some  same-sex  female  couples  and  unavailable  to  some 

opposite-sex couples (depending on whether the intended mother in those   
relationships was able to bear a child).  “Because [the statute] work[ed] 
to deny certain same-sex couples a marital benefit freely accorded to     



6  Although  Gestational  Agreement  is  not  binding,  the  implications  of 
Pavan have been examined by only a handful of federal courts, none of     
which are in the Eleventh Circuit.  So Gestational Agreement is one of the 
few aids out there.  The Court also finds it both analogous and persuasive. 
opposite-sex  couples,  it  [was]  unconstitutional  under  Obergefell  and 
Pavan.”  Id. at 82.                                                       

    These cases raise serious doubts about the constitutionality of a    
biological parent-child requirement in Section 301(c).  That provision    
allows  married  U.S.  citizens  to  confer  birthright  citizenship  on  their 

foreign-born children if either spouse resided previously in the United   
States for any length of time.  The ability to confer citizenship under   

these circumstances, without the additional burdens imposed by other      
provisions, could reasonably be viewed as a “benefit.”  That benefit is   
“linked  to  marriage”  because  it  is  unavailable  to  unmarried  couples.    

And,  under  the  Biological  Reading,  Section  301(c)  would  preclude  
married same-sex male couples from accessing this benefit because it is   
“impossible” for two men to be related biologically to the same child.    

Gestational Agreement, 449 P.3d at 82; (see Dkt. 74 at 33–34).7           
    Thus,  as  in  Pavan  and  Gestational  Agreement,  the  Biological  
Reading  would  result  in  a  statute  that  (1) provides  a benefit,    


7 It would likely exclude same-sex female couples as well since it is not 
clearly established that two females can share a biological relationship  
to the same child.  But see Henderson v. Box, 947 F.3d 482, 486–87 (7th   
Cir. 2020) (suggesting birth mother of donor egg considered biological    
(2) conditioned on marriage, (3) that is unavailable to certain married   
same-sex couples.  As in Pavan and Gestational Agreement, this would      

“den[y] married same-sex couples access to the constellation of benefits  
that the State has linked to marriage.”  Pavan, 137 S. Ct. at 2078.  And, 
as in Pavan and Gestational Agreement, that would likely render the       

statute  unconstitutional.    Indeed,  another  court  reached  exactly  this 
conclusion just two months ago.  See Kiviti v. Pompeo, 2020 WL 3268221,   

at  *13  (D.  Md.  June  17,  2020)  (“The  fact  that,  under  the  State 
Department’s interpretation, a male same-sex married couple can never     
have a child deemed to be born in wedlock and receive the citizenship-    

related benefit associated with having such a marital child alone raises  
serious doubts whether it infringes on th[eir] fundamental right.”).      
    Because  the  Biological  Reading  would  “raise[]  a  serious       

doubt” about the constitutionality of Section 301(c), “th[e] Court will first 
ascertain whether a construction of the statute is fairly possible by which 


parent).  Defendants do say a gestational mother counts as a biological   
parent under Section 301(c), even if she lacks a genetic relationship to  
the child.  But that is a contorted position that strains the statutory text 
at  issue  here  and,  even  if  right,  would  not  change  the  provision’s 
exclusion of same-sex male parents.  Indeed, it would only amplify the    
unfair denial of equal treatment to couples like Mize and Gregg.          
the question may be avoided.”  Zadvydas v. Davis, 533 U.S. 678, 689–90    
(2001) (finding that one construction “would raise a serious constitutional 

problem” before determining whether another construction was possible).   
In  other  words,  the  Court  must  consider  whether  the  Non-Biological 
Reading is plausible and, if it is, the Court must adopt it.              

    C.   The Non-Biological Reading is Plausible                         
         1.   Ordinary Meaning                                           
    “As  with  any  question  of  statutory  interpretation,  we  begin  by 

examining the text of the statute to determine whether its meaning is     
clear.”  Animal Legal Def. Fund v. U.S. Dep’t of Agric., 789 F.3d 1206,   
1215  (11th  Cir.  2015).    Section  301(c)  grants  citizenship  to  a  person 

“born . . . of  parents  both  of  whom  are  citizens of  the  United  States.”  
8 U.S.C. § 1401(c).  The INA does not define “born” or “of.”  Nor does it 
define the word “parents,” beyond clarifying that it includes deceased    

parents.  8 U.S.C. § 1101(c)(2).  Everyone agrees, however, that S.M.-G.  
was “born” and that Mize and Gregg are her “parents.”  (See, e.g., Dkts.  
42 at 1–2, 8; 50 at 2, 31.)8  So the central question is whether she was  
born “of” those parents.                                                  

    Because the word “of” is not defined in the statute, it “must be given 
[its] ordinary or common, everyday meaning[].”  United States v. Caniff,  
955 F.3d 1183, 1187–88 (11th Cir. 2020); see Animal Legal Def. Fund,      

789 F.3d at 1216 (“In the absence of a statutory definition, we look to the 
common usage of words for their meaning.”).  “To determine the ordinary   

meaning  of  a  term,  courts  often  turn  to  dictionary  definitions  for 
guidance.”  Castillo v. U.S. Atty. Gen., 756 F.3d 1268, 1273 (11th Cir.   
2014).  The INA was enacted in 1952, so dictionaries from that time       

provide the best guidance.  See Regions Bank v. Legal Outsource PA, 936   
F.3d 1184, 1190 (11th Cir. 2019) (“[W]e interpret the words of a statute  
based on their meaning at the time of enactment.”); Animal Legal Def.     

Fund, 789 F.3d at 1216 n.8 (“We have chosen to use a 1976 dictionary      



8  The  latter  conclusion  follows  from  Defendants’  position  that,  in 
Section 301, the word “parents” refers to legal parents.  (See Dkts. 42 at 
8–9; 50 at 2, 19–20); see also E.J. D.-B. v. U.S. Dep’t of State, Case No. 
19-55517, Dkt. 37, at 8 (9th Cir. Feb. 3, 2020) (noting “the Department’s 
interpretation of [Section 301], under which citizenship turns both on    
who a child’s legal ‘parents’ are and on whether the child was ‘born . . . 
of’ those parents.”).                                                     
because  it  is  more  contemporaneous  to  the  1966  enactment  of  the 
[statute] than a modern edition.”).                                       

    Dictionaries from around that time include several definitions of    
the  word  “of.”    The  one  that  counts  most,  of  course,  is  the  one 
“linguistically relevant to the circumstances here.”  Id. at 1216.  That  

definition reads: “Indicating origin, source, or the like.”  Webster’s New 
International Dictionary 1689 (2d ed. 1958) (“Webster’s).  The Oxford     

English  Dictionary  —  “one  of  the  most  authoritative  on  the  English 
language,” Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. 560, 569       
(2012) — provides a similar definition: “Of origin or source.  Indicating 

the thing or person whence anything originates, comes, is acquired or     
sought.”  Oxford English Dictionary, Vol. VII, at 67 (1st ed. 1933) (“1933 
OED”).9  A person is thus born “of” parents who are U.S. citizens if he or 

she “originated” from those parents.                                      
    There is no doubt that this language can be read narrowly to refer   
specifically to a biological parent-child relationship.  See, e.g., United 

States v. Marguet-Pillado, 560 F.3d 1078, 1083 (9th Cir. 2009) (“There    

9 This definition is unchanged in the 1989 version of the Oxford English  
Dictionary.    Oxford  English  Dictionary  (2d  ed.  1989)  (“1989  OED”), 
available at https://oed.com/oed2/00162372.                               
can be little doubt that the ‘born of’ concept generally refers to a blood 
relationship.”).  The concept of origination, when used “[i]n reference to a 

person,” generally denotes “[t]he fact of springing from some particular  
ancestor or race; descent, extraction, parentage, ancestry.”  1933 OED,   
Vol. VII, at 202.10  And the word “of,” when it follows the word “born,”  

commonly “express[es] racial or local origin, descent, etc.”  Id. at 67.11  
These definitions have strong biological connotations.                    

    But the statutory phrase can also be read more broadly.  As the      
Oxford English Dictionary points out, the meaning of the word “of” has    
been “so weakened down” over time that it now often “express[es] . . . the 

vaguest and most intangible of relations.”  1933 OED, Vol. VII, at 66.12  
In the face of this dilution, reading a narrow biological requirement into 
the word may place more weight on it than it can bear.                    

    Moreover, the concept of origination is “not necessarily” limited to 
biological origination, even if it is often used that way in reference to a 
person.    Zadvydas,  533  U.S.  678,  697  (finding  a  word  “ambiguous” 

because it did “not necessarily suggest” only one meaning).  It can also  

10 See 1989 OED, available at https://oed.com/oed2/00164865 (same).       
11 See 1989 OED, available at https://oed.com/oed2/00162372 (same).       
12 See 1989 OED, available at https://oed.com/oed2/00162372 (same).       
refer more generally to “[t]he act or fact of arising or springing from   
something” or to an entity’s “beginning of existence in reference to its  

source or cause.”  1933 OED, Vol. VII, at 202;13 see Webster’s at 1720    
(defining “origin” as “[t]he fact or process of coming into being from a  
source; derivation; beginning regarded in connection with its cause”); id. 

at 1721 (defining “originate” as “to give an origin or beginning to,” “to 
bring into existence,” “[t]o take or have origin,” or “to begin to exist or 

act”).                                                                    
    Under this broader meaning, “[a] child could fairly be deemed to     
originate from parents other than through a genetic relationship, such as 

where two married parents both play a fundamental and instrumental        
role in the creation of the child, for example by, as here, together planning 
and supporting the use of surrogacy and ART to bring about the birth of   

a child to whom they have both committed in advance to be a parent.”      
Kiviti, 2020 WL 3268221, at *10.  This application of the origination     
concept is consistent with “ordinary speech” and is not foreclosed by the 

statute, which imposes no textual limitation on the kind of origination it 
will accept.  McBoyle v. United States, 283 U.S. 25, 26 (1931) (adopting  


13 See 1989 OED, available at https://oed.com/oed2/00164865 (same).       
the meaning assigned to a word “in everyday speech,” even though “[n]o    
doubt etymologically it is possible to use the word to signify” something 

else);  see  Watson  v.  United  States,  552  U.S.  74,  79  (2007)  (“With  no 
statutory definition or definitive clue, the meaning of the [word] has to 
turn on the language as we normally speak it . . . .   So . . . we look[] for 

everyday meaning revealed in phraseology that strikes the ear as both     
reasonable and normal.”).                                                 

    Perhaps most tellingly, Defendants explicitly concede that, with     
respect to whether “born of parents” requires a biological relationship,  
“a reasonable person could read the language either way.”  (Dkt. 42 at    

6.)14  That is the very definition of ambiguous.  See Med. Transp. Mgmt.  
Corp.  v.  Comm’r  of  I.R.S.,  506  F.3d  1364,  1368  (11th  Cir.  2007) 
(“Statutory language is ambiguous if it is susceptible to more than one   



14  Indeed,  although  Defendants  briefly  make  an  “ordinary  meaning” 
argument in their opening motion to dismiss brief, they concede in their  
reply brief that the argument is not decisive and they omit it altogether 
from their summary judgment brief.  (See Dkts. 32-1 at 19; 42 at 6; 50;   
53 at 4.)  Defendants have also conceded, in a recent court filing in     
another  case,  that  Section  301  does  not  “provide[]  an  unambiguous 
textual answer to the question . . . whether a child must be biologically 
related  to  his  parents  in  order  to  acquire  citizenship  from  them.”  
E.J. D.-B. v. U.S. Dep’t of State, Case No. 19-55517, Dkt. 37, at 4–5     
(9th Cir. Feb. 3, 2020).                                                  
reasonable  interpretation.”).    Defendants’  actions  confirm  that     
ambiguity.  As mentioned above, in 2014, the State Department decided     

that a child could be “born of” (i.e., biologically related to) a gestational 
mother who is not genetically related to the child.  (See Dkt. 50-2 ¶¶ 54–
55.)  Before that time, Defendants reached the opposite conclusion.  No   

amendment to the statute triggered this change; Defendants just read      
the language differently.  This policy change, untethered to anything     

else, only underscores the “elasticity” of the “born of” language.  Kiviti, 
2020 WL 3268221, at *10.                                                  
    In sum, the ordinary meaning of the statutory phrase, “born of       

parents,” is reasonably consistent with both the Biological Reading and   
the Non-Biological Reading.                                               
         2.   Statutory Context                                          

    The Court next considers the INA’s statutory context to see if it    
affects  the  plausibility  of  the  Non-Biological  Reading.  See  Wachovia 
Bank, N.A. v. United States, 455 F.3d 1261, 1267–68 (11th Cir. 2006)      

(“[I]n  order  to  determine  the  plain  meaning  of  the  statute  we  must 
consider both the particular statutory language at issue and the language 
and design of the statute as a whole.”).  For at least three reasons, the 
Court finds that the construction remains plausible.                      

    First, Defendants do not dispute that Section 301(c) incorporates    
“the cluster of ideas” attached to the word “parents” under the common    
law, including the common law presumption of legitimacy.  Carter v.       

United  States,  530  U.S.  255,  264  (2000)  (“[W]here  Congress  borrows 
terms of art in which are accumulated the legal tradition and meaning of  

centuries of practice, it presumably knows and adopts the cluster of ideas 
that were attached to [it].”); (see Dkt. 50 at 19–20).15  That presumption, 
which  is  “universally  recognized,”  is  “a  fundamental  principle  of  the 

common law.”  Michael H. v. Gerald D., 491 U.S. 110, 124 (1989); Ray v.   
Bryant, 411 F.2d 1204, 1205 (5th Cir. 1969).  Moreover, it “effectively   
consider[s] a child to be born of parents consisting of a biological parent 

and that parent’s spouse at the time of the birth, without requiring proof 
that the spouse ha[s] a genetic relationship with the child.”  Kiviti, 2020 



15 See N.L.R.B. v. Amax Coal Co., a Div. of Amax, 453 U.S. 322, 329 (1981) 
(“Where Congress uses terms that have accumulated settled meaning         
under either equity or the common law, a court must infer, unless the     
statute  otherwise  dictates,  that  Congress  means  to  incorporate  the 
established meaning of these terms.”).                                    
WL  3268221,  at  *9  (emphasis  added).16    Given  that  Section  301(c) 
incorporates this presumption, it can plausibly be read to cover children 

who, like S.M.-G., are related biologically to only one of their married  
parents.  See Jaen v. Sessions, 899 F.3d 182, 185 (2d Cir. 2018) (“[T]he  
INA incorporates the common law meaning of ‘parent’ into [Section 301],   

such that a child born into a lawful marriage is the lawful child of those 
parents, regardless of the existence  or  nonexistence  of  any  biological 

link.”).                                                                  
    Second, Section 309(a)(1) expressly includes a “blood relationship”  
requirement while Section 301(c) does not.  This suggests that Congress   

knew how to require a biological relationship and that it intentionally   
declined to do so in Section 301(c).  See Gozlon-Peretz v. United States, 
498 U.S. 395, 404 (1991) (“Where Congress includes particular language    

in one section of a statute but omits it in another section of the same Act, 

16 The presumption applies even if the married couple are the same sex.   
See  Henderson,  947  F.3d  at  487  (“[A]  state  cannot  presume  that  a 
husband  is  the  father  of  a  child  born  in  wedlock,  while  denying  an 
equivalent presumption to parents in same-sex marriages.”); Kiviti, 2020  
WL 3268221, at *9 (“[C]ourts have extended the presumption that a         
person is the legal parent of a child based on marriage to a biological   
parent at the time of birth to same-sex marriages.”); McLaughlin v. Jones 
in & for Cty. of Pima, 401 P.3d 492, 498 (Az. 2017) (“[T]he presumption   
of paternity . . . cannot . . . be restricted to only opposite-sex couples.”).  
it is generally presumed that Congress acts intentionally and purposely   
in the disparate inclusion or exclusion.”).  That inference is bolstered by 

the fact that Congress added the “blood relationship” language in a 1986  
amendment   that  also  made  unrelated  changes  to  Section  301.    See 
Pub. L. No. 99-653, §§ 12–13, 100 Stat. 3655.  That Congress considered   

changes  to  both  sections  at  the  same  time  but  inserted  the  ‘blood 
relationship’  requirement  only  in  Section  309  strongly  suggests    

Section 301 contains no such requirement.17                               
    Third, and relatedly, if Congress wanted to require a biological     
parent-child  relationship,  “it  certainly  could  have  spoken  in  clearer 

terms.”    Zadvydas,  533  U.S.  at  697  (finding  the  word  “may”  to  be 
ambiguous because it could refer to limited or unlimited discretion and,  
if Congress had wanted to authorize the latter, “it certainly could have  

spoken  in  clearer  terms”).    The  idea  that  Congress  used  a  vague, 
two-letter  preposition  to  implicitly  incorporate  such  a  weighty    


17 The argument is not a slam dunk, however, because the Supreme Court    
has suggested that other INA provisions (Sections 309(a)(4) and 309(c))   
require  a  biological  relationship  even  though  they  lack  any  “blood 
relationship” language.  See Nguyen v. I.N.S., 533 U.S. 53, 62–64 (2001); 
Miller, 523 U.S. 433–38 (1998) (Stevens, J.); see also Marguet-Pillado,   
560 F.3d at 1083 (finding that “the 1952 version [of Section 309(a)] still 
required a biological relationship” even though it did not do so expressly). 
requirement is in tension with the canon that Congress does not “hide     
elephants in mouseholes.”  Whitman v. Am. Trucking Ass’ns, 531 U.S.       

457, 468 (2001) (“Congress, we have held, does not alter the fundamental  
details of a regulatory scheme in vague or ancillary provisions.”).18     
         3.   Other Cases                                                

    At least six cases have held that Section 301 does not require a     
biological  parent-child  relationship.19    No  court  has  expressed  the 


18 Curiously, Section 301 sometimes says born “to” instead of born “of.”  
See  8  U.S.C.  §  1401(b).    Courts  generally  presume  that  “differing 
language”  does  not  convey  “the same  meaning.”    Russello  v.  United 
States, 464 U.S. 16, 23 (1983); see Russell v. Law Enf’t Assistance Admin. 
of U. S., 637 F.2d 354, 356 (5th Cir. 1981).  But Plaintiffs and Defendants 
both claim that rule does not apply here.  (Dkt. 74 at 46–50.)  Defendants 
say each phrase requires a biological relationship; Plaintiffs say neither 
phrase does.  (Id.)  In the Court’s view, “born to” seems less susceptible 
to a narrow biological meaning than “born of.”  See 1933 OED, Vol. XI, at 
86 (defining “to” as “[i]ntroducing the recipient of anything given, or the 
person or thing upon whom or which an event acts or operates,” e.g.,      
“[h]aving  a  Son   born  to  him”);  1989   OED,   available  at         
https://oed.com/oed2/00253634 (same); Webster’s at 2657 (defining “to” as 
“[i]ndicating the recipient affected by action,” e.g., “a son born to them”).  
But,  given  the  parties’  limited  submissions  on  this  issue  (they  only 
addressed it briefly in response to a direct question at oral argument),  
the  Court  cannot  say  that  the  statute’s  use  of  both  phrases  sheds 
conclusive light on the meaning of either.                                
19 See Jaen, 899 F.3d at 190 (“[A] blood relationship is not required to  
establish parentage for purposes of acquired citizenship [under Section   
301] when the child is born into marriage.”); Solis-Espinoza v. Gonzales, 
401 F.3d 1090, 1094 (9th Cir. 2005) (finding that a child who lacked a    
contrary  view.20    That  is  not  dispositive,  of  course,  but  it  certainly 
supports the conclusion that the Non-Biological Reading is a reasonable   

one.  See In re Aldersgate Found., Inc., 878 F.2d 1326, 1328 n.3 (11th Cir. 
1989)  (“Decisions  of  other  courts  support  our  interpretation  of  the 
[statutory] term.”); see also Guar. Fin. Servs., Inc. v. Ryan, 928 F.2d 994, 

1004 n.3 (11th Cir. 1991) (“That the various courts that have already     
decided this question are split supports our conclusion that the statute is 

ambiguous.”).                                                             



biological relationship with his only citizen parent was nevertheless a   
citizen under Section 301(g)); Scales v. I.N.S., 232 F.3d 1159, 1164 (9th 
Cir. 2000) (“A straightforward reading of § 1401 indicates . . . there is no 
requirement of a blood relationship”); Kiviti, 2020 WL 3268221, at *11    
(“[T]he statute is clear and unambiguous that the phrase ‘born . . . of   
parents’ in 8 U.S.C. § 1401(c) does not require a biological relationship 
with both parents.”); Sabra as next friend of Baby M v. Pompeo, 2020 WL   
1643676, at *20 (D.D.C. Apr. 2, 2020) (“[T]he plain language of 8 U.S.C.  
§ 1401 does not require proof of a ‘biological relationship’ between the  
child  born  abroad  to  married  U.S.  citizen  parents”);  Dvash-Banks  v. 
Pompeo, 2019 WL 911799, at *7 (C.D. Cal. Feb. 21, 2019) (“Nothing in      
Section 301 . . . suggests that in using the words ‘parent’ or ‘born . . . of 
parents,’  Congress  intended  to  refer  only  to  biological  or  genetic 
parents”).                                                                
20 Defendants cite Colaianni v. I.N.S., 490 F.3d 185, 187 (2d Cir. 2007).  
But the one-paragraph discussion in that case is conclusory and unclear.  
The Second Circuit has since held, without even citing Colaianni, that    
Section 301 does not require a biological relationship.  See Jaen, 899 F.3d 
at 190.                                                                   
         4.   Defendants’ Arguments                                      
    Defendants advance several arguments in support of their position    

that Section 301(c) requires a biological parent-child relationship.  None 
foreclose the Non-Biological Reading.                                     
    First, Defendants claim their construction is entitled to deference  

under Skidmore v. Swift & Co., 323 U.S. 134 (1944).  But constitutional   
avoidance trumps Skidmore deference.  See Miller v. Johnson, 515 U.S.     
900, 923 (1995) (“[W]e have rejected agency interpretations to which we   

would  otherwise  defer  where  they  raise  serious  constitutional      
questions.”);  Edward  J.  DeBartolo,  485  U.S.  at  574–75  (although  an 
agency’s  “statutory  interpretation  .  .  .  would  normally  be  entitled  to 

deference,” courts cannot defer to that interpretation if it “would raise 
serious  constitutional  problems”);  Lowe v. S.E.C.,  472  U.S.  181,  216 

(1985) (White, J., concurring) (Skidmore deference “cannot be decisive” if 
constitutional  avoidance  applies);  Union  Pac.  R.  Co.  v.  U.S.  Dep’t  of 
Homeland  Sec.,  738  F.3d  885,  893  (8th  Cir.  2013)  (“Constitutional 

avoidance  trumps  even Chevron  deference,  and  easily  outweighs  any  
lesser form of deference we might ordinarily afford an administrative     
agency.”).                                                                
    Defendants next claim they have always interpreted Section 301 to    
require a biological relationship and that Congress necessarily approved  

that interpretation when it amended the INA without specifying that a     
biological  relationship  is  not  required.    This  is  an  invocation  of  the 
re-enactment doctrine, which holds that “Congress is presumed to be       

aware of an administrative or judicial interpretation of a statute and to 
adopt that interpretation when it re-enacts a statute without change.”    

Lorillard v. Pons, 434 U.S. 575, 580 (1978).  But “the State Department   
has  cited  no  authority  for  the  application  of  this  principle,  typically 
applied to agency interpretations contained in promulgated regulations    

subject to notice and comment, to an internal policy manual such as the   
FAM.”  Kiviti, 2020 WL 3268221, at *11.  And, even if it had, the doctrine 
“is merely an interpretive tool fashioned by the courts for their own use 

in construing an ambiguous legislation.”  Bell Fed. Sav. & Loan Ass’n v.  
Comm’r, 40 F.3d 224, 230 (7th Cir. 1994); see Helvering v. Reynolds, 313  
U.S. 428, 432 (1941) (the doctrine “is no more than an aid in statutory   

construction,” which is “useful at times”).  It must yield to the “cardinal 
principle”  of  constitutional  avoidance,  which  is  likewise  triggered  by 
statutory ambiguity.  Jennings, 138 S. Ct. at 842.                        
    The re-enactment doctrine also applies “only where an agency’s       
statutory construction has been fully brought to the attention of the     

public and the Congress.”  Am. Bankers Ins. Grp. v. United States, 408    
F.3d 1328, 1335 (11th Cir. 2005).  Here, “there is nothing to indicate that 
Congress was aware of [the State Department’s interpretation] when it     

subsequently amended and re-enacted [the INA].”  Id.; see Comm’r v.       
Glenshaw  Glass  Co.,  348  U.S.  426,  431  (1955)  (“Re-enactment—      

particularly without the slightest affirmative indication that Congress   
ever  had  the  [agency’s  interpretation]  before  it—is  an  unreliable 
indicium at best.”).  There is not even any evidence (beyond Defendants’  

own conclusory assertion) that the State Department’s interpretation      
predates 1994, the year in which Section 301 was last amended.  Pub. L.   
No. 103-416, § 101, 108 Stat. 4305; see Kiviti, 2020 WL 3268221, at *11   

(finding “no evidence that the specific statutory interpretation at issue 
here even predates 1986”).  Even if the re-enactment doctrine did apply   
here, its limited weight would not tip the scales conclusively in favor of 

the Biological Reading.  See Winter v. Hollingsworth Props., Inc., 777 F.2d 
1444, 1449 n.12 (11th Cir. 1985) (“Courts ordinarily do not attach much   
significance to Congress’ acquiescence in an agency’s interpretation of a 
statute because non-action by Congress is not often a useful guide.”).    

    Third,  Defendants  say  “the  traditional  understanding  of        
jus sanguinis  citizenship  provides  a  strong  reason  to  pause  before” 
adopting the Non-Biological Reading.  (Dkt. 32-1 at 21.)  Jus sanguinis,  

which literally means “right of blood,” is a “Roman Civil Law concept”    
that says “a child’s citizenship is determined by the parents’ citizenship.”  

Sabra, 2020 WL 1643676, at *19; Black’s Law Dictionary (11th ed. 2019)    
(“jus sanguinis”).  But Defendants ignore the fact that there are different 
“versions of jus sanguinis” whose “basic rule[s] can vary in strength.”   

Matthew Lister, Citizenship, in the Immigration Context, 70 Md. L. Rev.   
175, 198 (2010).                                                          
    To the extent Defendants invoke a version of jus sanguinis that      

literally depends on blood, they “identif[y] no place in the Constitution, 
the  INA,  or  another  federal  statute  where  that  principle  has  been 
explicitly adopted by the United States.”  Kiviti, 2020 WL 3268221, at    

*12.  Importantly, “[t]here is not, and never was, any such common-law    
principle.”  United States v. Wong Kim Ark, 169 U.S. 649, 670 (1898).  To 
the  contrary,  U.S.  citizenship  “traditionally  has  not  been  limited  to 
biological parents but has included others, such as those who became      
parents at birth through marriage.”  Kiviti, 2020 WL 3268221, at *12; see 

Kerry Abrams & R. Kent Piacenti, Immigration’s Family Values, 100 Va.     
L.  Rev.  629,  658  (2014)  (“[C]itizenship  sometimes  passed  from  U.S. 
citizen fathers to foreign-born marital children to whom they were not    

biologically related. . . .  [I]t was marriage rather than blood that was 
doing the work.”).21                                                      

    Finally, Defendants point to two cases in which the Supreme Court    
said that “ensuring reliable proof of a biological relationship between the 
potential citizen and its citizen parent is an important governmental     

objective.”  Miller, 523 U.S. at 436 (Stevens, J.); see Nguyen, 533 U.S. at 
62.    But  both  cases  involved  children  with  unmarried  parents  who 
challenged the constitutionality of INA Section 309 — the “born out of    

wedlock”  provision  that  explicitly  requires  a  “blood  relationship.”  
Neither Section 301 nor marital children were at issue in either case.  As 




21 Defendants’ reliance on jus sanguinis is also in tension with their    
position  that  a  non-genetic  gestational  relationship  is  sufficient  to 
transmit citizenship.                                                     
a  result,  the  cases  do  not  foreclose  a  Non-Biological  Reading  of 
Section 301(c).22                                                         

         5.   Conclusion                                                 
    The Court finds that Section 301(c) is reasonably consistent with    
the  Non-Biological  Reading,  even  if  it  is  also  consistent  with  the 

Biological  Reading.    Because  the  Non-Biological  Reading  is  “fairly 
possible,”  and  because  the  Biological  Reading  would  raise  serious 
constitutional questions, the Court must adopt the former under the       

doctrine  of  constitutional  avoidance.    See  Zadvydas,  533  U.S.  at  689 
(“We have read significant limitations into . . . immigration statutes in 
order to avoid their constitutional invalidation.”).                      


22  According  to  the  FAM,  Defendants’  policy  of  reading  a  biological 
relationship requirement into Section 301 is based in part on the theory  
that (1) Section 309 explicitly applies to children “born out of wedlock”; 
(2) Section 301 is thus limited to children born in wedlock; and (3) the  
only parents whose marital status matters for the wedlock determination   
are the biological parents.  But Defendants never pressed this argument   
in their papers or at oral argument.  Even if they had, the phrase “born  
out of wedlock” is not unambiguously limited to children whose biological 
parents were unmarried at the time of their birth.  See Scales, 232 F.3d  
at 1164 (a child is not “born out of wedlock” if “he was born to parents  
who were married at the time of his birth,” even if he lacks a biological 
relationship with both parents).  In ordinary speech, for example, one    
would not say a child born through ART to married parents was “born       
out of wedlock,” even if the child shared a genetic relationship with only 
one parent.                                                               
    D.   Conclusion                                                      
    Having adopted the Non-Biological Reading, the Court finds that      

Section 301(c) does not require children to share a biological relationship 
with both citizen parents in order for those children to acquire citizenship 
at birth.  As a result, S.M.-G. is a U.S. citizen under Section 301(c), she 

is  entitled  to  a  U.S.  passport,  and  Plaintiffs’  constitutional  claims 
(Counts 2–3) are moot.  (See Dkt. 61 at 30, 55–56, 58–59 (noting that the 
Court  need  not  address  Counts  2–3  if  it  grants  Plaintiffs’  summary 

judgment motion on Count 1).)  The Court thus (1) denies Defendants’      
motion to dismiss Counts 1–3; (2) grants Plaintiffs’ motion for summary   
judgment on Count 1; (3) denies Defendants’ cross-motion for summary      

judgment on Count 1; and (4) dismisses Counts 2–3 as moot.                
    Plaintiffs’ only remaining claim is Count 4 (their APA claim), which 

Defendants also move to dismiss.  The Court turns to that claim now.       
V.   Plaintiffs’ APA Claim (Count 4)                                      
    Count  4  claims  that  Defendants’  invocation  of  the  Biological 
Reading  to  deny  S.M.-G.’s  applications  “is arbitrary,  lacks  a  rational 

basis, and is contrary to law.”  (Dkt. 7 ¶¶ 96–97.)  Plaintiffs say this  
entitles them to relief under the APA.  The Court disagrees.              
    The APA provides judicial review for “[a] person suffering legal     
wrong because of agency action.”  5 U.S.C. § 702.  But review is limited  

to “final agency action for which there is no other adequate remedy in a  
court.”  5 U.S.C. § 704.  That is so because “Congress did not intend the 
general grant of review in the APA to duplicate existing procedures for   

review of agency action.”  Bowen v. Massachusetts, 487 U.S. 879, 903      
(1988).  In other words, the APA “does not provide additional judicial    

remedies  in  situations  where  the  Congress  has  provided  special  and 
adequate  review  procedures”  under  another  statute.    Id.    These   
alternative procedures “need not provide an identical review that the     

APA would provide.”  Hinojosa v. Horn, 896 F.3d 305, 310 (5th Cir. 2018).  
They need only “offer[] the same genre of relief.”  Id.                   
    8 U.S.C. § 1503 provides an adequate alternative remedy here.  It    

creates a legal right of action for “any person who is within the United  
States [who] claims a right or privilege as a national of the United States 
and is denied such right or privilege . . . upon the ground that he is not a 

national of the United States.”  8 U.S.C. § 1503(a).  The provision states 
expressly that the aggrieved person may “institute an action . . . for    
a judgment declaring him to be a national of the United States.”  Id.  This 
remedy  is  designed  to  address  exactly  the  kind  of  wrong  alleged  by 
Plaintiffs  here,  namely,  “the  U.S.  Embassy’s  erroneous  finding  that 

S.M.-G. is not a U.S. citizen and its related decision to deny the CRBA   
and passport applications submitted on S.M.-G.’s behalf.”  (Dkt. 7 ¶ 92.)   
    Indeed, the adequacy of the remedy is illustrated by the fact that   

Plaintiffs actually invoked it in this case; they used it to bring, and   
ultimately prevail on, Count 1 of their complaint.  See Heslop v. Attorney 

Gen. of U.S., 594 F. App’x 580, 584 (11th Cir. 2014) (INA provision offered 
adequate alternative to APA review where plaintiff “brought his INA       
claim under that very provision”).  “[W]hen plaintiffs challenge the State 

Department’s ‘deprivation of U.S. passports on the allegedly erroneous    
conclusion that they are not citizens,’ courts have consistently concluded 
that § 1503(a) provides ‘an adequate alternative remedy’ to APA review.”  

Kiviti, 2020 WL 3268221, at *14 (quoting Hinojosa, 896 F.3d at 312); see  
Heslop, 594 F. App’x at 584 (“The APA does not authorize judicial review  
that adds to the sweeping de novo review that the INA provides.”).        

    Plaintiffs counter that Section 1503(a) is inadequate here because,  
although it allows them to obtain a declaration of citizenship, they seek 
additional relief that it cannot provide.  (Dkt. 35-1 at 25.)  This additional 
relief is two-fold: (1) a declaration condemning Defendants’ “policy and  
practice”  towards  the  children  of  married  same-sex  couples,  and   

(2) a permanent  injunction  enjoining  Defendants  from  continuing  to  
apply that policy and practice.  (Dkts. 7 at 32; 35-1 at 25.)  But Plaintiffs 
cannot  obtain  this  relief  under  the  APA  either.    Plaintiffs’  requests 

essentially seek “wholesale improvement of a program by court decree”     
— something the APA forbids.  Dvash-Banks, 2019 WL 911799, at *6          

(quoting  Lujan  v.  Nat’l  Wildlife  Fed’n,  497  U.S.  871,  891  (1990)).  
Moreover, “the injunction sought by Plaintiffs is well beyond that needed 
to  provide  Plaintiffs  with  complete  relief,  namely  a  declaration  that 

[S.M.-G.]  is  a  U.S.  citizen.”    Id.    If  the  Court  issued  the  sweeping 
injunction sought by Plaintiffs, it would violate the rule that “injunctive 
relief should be no more burdensome to the defendant than necessary to    

provide complete relief to the plaintiffs.”  Madsen v. Women’s Health Ctr., 
Inc., 512 U.S. 753, 765 (1994); see Kiviti, 2020 WL 3268221, at *15.      
    Because Plaintiffs have an adequate alternative remedy to APA        

review, the Court grants Defendants’ motion to dismiss Count 4.           
VI.   Conclusion 
      Defendants’   Motion   to   Dismiss   for   Lack   of  Subject   Matter 
Jurisdiction  (Dkt.  63)  is  DENIED.   Defendants’  Motion  to  Dismiss  the 
Complaint (Dkt.  32)  is  GRANTED IN  PART and DENIED IN  PART. 
It  is  GRANTED  to  the  extent  it  seeks  dismissal  of  Count  4.   It  is 
otherwise DENIED.  Plaintiffs’ Motion for Partial  Summary Judgment 
(Dkt.  44)  is  GRANTED,  and  Defendants’  Cross-Motion  for  Partial 
Summary Judgment (Dkt.  50) is DENIED. 
      The Clerk is DIRECTED to enter summary judgment for Plaintiff 
S.M.-G.  on  Count 1;  Counts  2-3  are  DISMISSED  AS  MOOT;  and 
Count 4  is  DISMISSED  for  failure  to  state  a  claim.    The  Court 
DECLARES that $.M.-G. is  a United States citizen by birth pursuant to 
8 U.S.C.  §  1401(c).  The  Court DIRECTS Defendants to issue a United 
States passport to 8.M.-G. 
      SO ORDERED this 27th day of August, 2020. 

                                        UNITED STATES DISTRICT  JUDGE 

                                     56