Opinion

Straw v. U.S. Department of State

Court: District Court, D. Maryland
Filed: May 14, 2020
Cited by: 0 cases
Authority: More cited than 23.0%

observing that it is “axiomatic that the United States may not be sued without its consent”

How later courts described this case

observing that it is “axiomatic that the United States may not be sued without its consent”
observing that a waiver of sovereign immunity “must be unequivocally expressed in statutory text, and will not be implied”
“There is, of course, no constitutional right to an appeal . . . .”
recognizing that the sovereign’s consent is “a prerequisite for jurisdiction”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

ANDREW U.D. STRAW,

Plaintiff,

v. Civil Action No. ELH-19-2294

U.S. DEPARTMENT OF STATE,

Defendant.

MEMORANDUM OPINION

This litigation is rooted in the denial of a visa to a foreigner who was to serve as a

medical escort for an American citizen returning from the Philippines to the United States.

Plaintiff Andrew Straw, a United States citizen currently residing in the Philippines,

applied for a loan from the United States Department of State (the “State Department”) through a

program that repatriates destitute citizens located abroad. Mr. Straw asserts that he has severe

physical and mental disabilities and requested funds to cover the travel costs of his Filipina

home-health aide, Leslie Castigador Tabbada, so that she could serve as his medical escort.

However, the State Department denied Ms. Tabbada’s visa request, rendering her ineligible to

act as plaintiff’s escort. Thereafter, on August 8, 2019, Mr. Straw filed suit against the State

Department, alleging, inter alia, discrimination and a denial of due process. ECF 1 (the

“Complaint”); ECF 1-2 (Straw Affidavit).

Plaintiff, who is a self-represented lawyer,1 seeks damages as well as injunctive and

declaratory relief. In Count I, Mr. Straw asserts a claim for violation of his rights to substantive

1 Plaintiff is an active member of the Virginia bar and is admitted to practice before the

Fourth Circuit. See ECF 1-2, ¶¶ 24-25. see also Fed. R. Evid. 201; Andrew U.D. Straw,

VIRGINIA LAWYER DIRECTORY, https://bit.ly/2xNHqpU (last accessed May 7, 2020); Active

Attorneys, UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, https://bit.ly/3dlRntE

(last accessed May 7, 2020).

due process under the Fifth Amendment to the Constitution, pursuant to Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See ECF 1, ¶¶ 16-17. He

seeks damages of $52,000. Id. ¶ 18. Count II alleges that the State Department is liable in the

amount of $1,000,000 for violations of the Equal Credit Opportunity Act (“ECOA”), 15 U.S.C.

§ 1691 et seq., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 et seq. ECF 1,

¶¶ 19-22. Plaintiff also seeks various declarations, including a ruling that “denying a severely

disabled person an escort” is “discrimination on its face.” Id. ¶ 27. And, plaintiff seeks an

injunction compelling the State Department to issue Ms. Tabbada “a B1 visa with a full 12-

month time period.” Id. ¶ 29.

On October 16, 2019, Mr. Straw filed a “Motion For Permission To Include Judiciary Act

of 1925 Declaration In Amended Complaint.” ECF 17 (the “Motion to Amend”). In his

submission, plaintiff seeks to amend his suit to include a claim that the Judiciary Act of 1925, as

amended, 28 U.S.C. § 1254, violates “due process … under the Fifth Amendment, the First

Amendment, and Article III [of the Constitution].” ECF 17, ¶ 5.

A cursory search on Westlaw reveals Mr. Straw to be a prolific if unsuccessful litigator.

He is identified as a plaintiff in over fifty judicial opinions. In the first half of 2020 alone, the

federal courts have dismissed five cases filed by Mr. Straw. See Straw v. Wolters Kluwer United

States, Inc., 20-CV-3251 (LLS), 2020 WL 2115177 (S.D.N.Y. May 1, 2020); Straw v. Harris,

No. C20-0410RSL, 2020 WL 2063560 (E.D. Wash. Apr. 28, 2020); Staw v. Avvo, Inc., No. C20-

0294JLR, 2020 WL 1182932 (W.D. Wash. Mar. 11, 2020); Straw v. North Carolina, 7:18-cv-

00074-M, 2020 WL 1042141 (E.D.N.C. Mar. 3, 2020), appeal docketed No. 20-1295 (4th Cir.

Mar. 12, 2020); Straw v. Indiana, SAG-19-3034, 2020 WL 231071 (D. Md. Jan. 14, 2020).

Notably, the Indiana Supreme Court disciplined Mr. Straw in 2017 for filing frivolous

cases, suspending his law license for 180 days. See In re Straw, 68 N.E.3d 1070, 1071, 1073

(Ind. 2017), cert. denied sub nom. Straw v. Indiana Supreme Court, ___ U.S. ___, 137 S. Ct.

2309 (2017). It appears that plaintiff’s Indiana law license remains suspended. See Andrew

U.D. Straw, INDIANA ROLL OF ATTORNEYS, https://bit.ly3drYEbA (last accessed May 7, 2020).

Then, on November 14, 2019, prior to discovery, plaintiff filed a motion for summary

judgment under Fed. R. Civ. P. 56. ECF 20. It is supported by a memorandum of law. ECF 20-

1 (collectively, the “Straw S.J. Motion”).

On December 6, 2019, the government filed a motion to dismiss under Fed. R. Civ. P.

12(b)(1) and 12(b)(6) or, in the alternative, for summary judgment under Fed. R. Civ. P. 56.

ECF 24. The motion is supported by a memorandum of law (ECF 24-1) (collectively, the

“Government Motion”) and one exhibit. ECF 24-2. Plaintiff filed a consolidated response to the

Government Motion (ECF 25) (the “Opposition”), along with six exhibits. ECF 27-1 to ECF 27-

6.2 The government replied on January 9, 2020. ECF 31.

Since then, Mr. Straw has flooded the Court with additional filings. These include a

“Notice” accusing the government of “mislead[ing] the Court” in its reply (ECF 32); “Motion To

Take Notice” (ECF 33); “Motion for Declaratory Judgment,” contesting the government’s

interpretation of the Rehabilitation Act (ECF 36); “Motion To Take Notice Of Leslie C.

Tabbada’s ‘Starving Artist’ Status And O Visa Application, Inter Alia” (ECF 37); “Motion To

Take Notice Of Rule 8(b)(6) Applied To The Declaratory Judgment Motion And Proposed Order

And Motion To Take Judicial Notice” (ECF 38); and several “Notice[s]” on topics including Mr.

Straw’s family history, disabilities, prior litigation, and health status in light of the COVID-19

pandemic. ECF 40; ECF 41; ECF 42; ECF 43; ECF 44; ECF 45. The government opposes these

filings to the extent that they constitute surreplies. ECF 34; ECF 39. Plaintiff has replied to the

government’s oppositions. ECF 35; ECF 41.

2 Plaintiff also filed a “Notice” on December 7, 2019, observing that I was once (many

years ago) an Assistant United States Attorney in the District of Maryland and citing 28 U.S.C.

§ 455, without elaboration. ECF 26.

No hearing is necessary to resolve the various motions. See Local Rule 105.6. For the

reasons that follow, I shall deny the Motion to Amend (ECF 17). In addition, I shall deny ECF

33, ECF 36, ECF 37, and ECF 38 as improper surreplies. And, I shall construe the Government

Motion (ECF 24) as one for summary judgment, and I shall grant it. Conversely, I shall deny the

Straw S.J. Motion (ECF 20).

I. Background

A. The Repatriation Loan Program

The State Department Basic Authorities Act of 1956, as amended, 22 U.S.C. § 2651 et

seq., authorizes the Secretary of State “to make expenditures, from such amounts as may be

specifically appropriated therefor, for unforeseen emergencies arising in the diplomatic and

consular service.” 22 U.S.C. § 2671(a)(1). Pursuant to this grant of authority, the Secretary may

issue “loans . . . to destitute citizens of the United States who are outside the United States . . . to

provide for the return to the United States of its citizens.” Id. § 2671(b)(2)(B).

Administration of the repatriation loan program in governed by the State Department’s

Foreign Affairs Manual (the “FAM” or “Manual”). Along with the State Department’s

handbooks, the Manual “convey[s] codified information to Department staff and contractors so

they can carry out their responsibilities in accordance with statutory, executive, and Department

mandates.” Foreign Affairs Manual and Handbook, U.S. DEP’T OF STATE, http://fam.state.gov/;

see also Sheikh v. U.S. Dep’t of Homeland Sec., 685 F. Supp. 2d 1076, 1090 (C.D. Cal. 2009)

(“FAM contains the functional statements, organizational responsibilities, and authorities of each

of the major components of the U.S. Department of State, including Consular Officers.”).

Pursuant to the FAM, the issuance of repatriation loans is purely discretionary. See

7 FAM § 371(c) (Dec. 18, 2019) (providing that the State Department “may at its discretion, but

is not required to, provide a repatriation loan to an eligible U.S. citizen and/or accompanying

family member(s)”). In assessing whether an applicant warrants a repatriation loan, consular

officers, in conjunction with the Bureau of Consular Affairs, Directorate of Overseas Citizens

Services, Office of American Citizens Services and Crisis Management (the “ACS”), must

examine nine “eligibility factors.” Id. § 373(e). These include: (1) nationality; (2) prior

residence in the United States; (3) destitution; (4) accompanying family members;

(5) accompanying escorts; (6) medical repatriation eligibility; (7) absence of a social security

number; (8) ineligibility based on military status; and (9) ineligibility based on the applicant

being a merchant seamen. See id.

In order for an applicant to qualify for a loan, the consular officer “must determine that

the applicant is destitute.” Id. § 375.2(b). An applicant qualifies as “destitute” if he or she has

“little or no visible means of support or liquid assets”; “no family, friends, neighbors, employers,

charitable groups, etc., willing and able to provide adequate financial assistance”; “inadequate

food or shelter”; and “no funds available to him or her to pay for the cost of repatriation.” Id.

To determine whether an applicant is in fact destitute, the consular officer “must” interview the

citizen and obtain the names and contact information “of at least” three individuals in the United

States who may be able to provide the applicant with financial assistance. Id. § 373.2(c)(1).

Moreover, the consular officer must make a good faith effort to obtain funds from these

sources before recommending the applicant for a loan. Id. § 373.2(c)(2). The FAM provides: “If

the consular officer is not satisfied that an applicant(s) is destitute, the officer may decline to

provide repatriation loan services to the applicant(s) and should notify the [ACS] country officer

of the decision.” Id. § 373.2(c)(1).

Before the applicant obtains a loan, he or she must satisfy “all of the eligibility

requirements” and sign a completed loan application. Id. § 375.2(b). Further, the FAM directs

consular officers to “manage public monies expended on behalf of destitute citizens

responsibly,” id. § 376.3(d)(1), and to accomplish repatriation “by the least expensive means

available.” Id. § 371.5(a).

The Manual provides that repatriation loans may be used to cover not only the citizen’s

transportation costs but also expenses “incidental to the return of the individual,” id. § 371(i),

including the travel costs of an escort. Id. § 371(i)(6). An escort “may be required,” for

example, where the applicant is an unaccompanied citizen minor, physically or mentally

disabled, or elderly. Id. § 374.4(a). In such circumstances, the repatriation loan may include the

costs of an escort’s travel and a per diem to the last U.S. city where the citizen will be received

by local authorities or family members. Id. § 374.4(e). However, the Managing Director for

Overseas Citizens Services must approve any escort fee greater than $1,000. Id. § 374.4(f).

As the signatory of the loan, the applicant has the “right to concur in the selection of the

escort, based on information provided by the consular officer and subject to airline restrictions

and attending physician recommendations.” Id. § 374.4(c). But, the applicant’s choice of escort

is not unlimited: “Escorts must either be U.S. citizens, already have their U.S. visa, or be visa-

eligible aliens.” Id. § 374.4(b).

B. Plaintiff’s Repatriation Loan Application3

Mr. Straw is a United States citizen. ECF 1-2, ¶ 5. Plaintiff avers that he has “severe

physical and mental disabilities,” ECF 1, ¶ 4, as a result of birth defects and a “head-on” car

3 The followings facts are largely drawn from the Affidavit of Yolanda Parra, the

Director of American Citizens Services, Office of Overseas Citizens Services in the Bureau of

Consular Affairs at the State Department. ECF 24-2, ¶ 1. Mr. Straw does not dispute these facts

in his Opposition.

accident that occurred in 2001. See id. ¶¶ 4-14; ECF 1-2, ¶ 4; ECF 25, ¶¶ 5, 8, 17; ECF 25-1 to

ECF 25-6. Among other issues, plaintiff underwent an “amputation of the top portion of [his]

right femur in 2012 . . . .” ECF 1-2, ¶ 4. The government does not dispute that Mr. Straw is

disabled. See ECF 31 at 2.

Although it is unclear when Mr. Straw left the United States, he currently resides in the

Philippines. ECF 1, ¶ 2. According to plaintiff, Leslie Castigador Tabbada, a citizen of the

Philippines, serves as his home-health aide. Id. ¶¶ 6-7.4

On March 21, 2019, the United States Embassy to the Philippines received

correspondence from Mr. Straw referencing a repatriation loan, a visa application for Ms.

Tabbada, and his desire for Ms. Tabbada to live with him upon his relocation to the United

States. ECF 24-2 (Affidavit of Yolanda Parra), ¶ 2. According to the government, ACS spoke

with Mr. Straw on April 11, 2019, and requested a Privacy Act Waiver (“PAW”) so it could

begin contacting friends and family to seek financial assistance, as required by the FAM before

deeming a citizen destitute and therefore eligible for a repatriation loan. Id. ¶ 3. The same day,

the ACS unit in Manila received Mr. Straw’s PAW and began reaching out to his contacts. Id.

¶ 4. On May 22, 2019, ACS deemed Mr. Straw destitute and encouraged him to apply for a

repatriation loan. Id.

Mr. Straw submitted an application on May 23, 2019, using an outdated version of the

application form. Id. ¶ 5; see ECF 1-2, ¶ 5 (Mr. Straw alleging that he applied for a loan in May

2019). He also submitted an Addendum, dated March 18, 2019, along with his application. ECF

24-2, ¶ 5; see id. at 7-20 (Addendum). In the Addendum, Mr. Straw explained that he sought a

4 It appears that their relationship is not platonic, as Mr. Straw refers to Ms. Tabbada in

his Opposition as his “potential spouse.” ECF 25, ¶ 27 (emphasis in original); see id. ¶ 60

(alleging that he wishes to travel to the United States so he and Ms. Tabbada can marry).

loan to cover the cost of travelling from Bauan, Philippines, where he lives, to Montpelier,

Vermont, where he hoped to reside and had already applied for public housing. Id. at 7. Further,

plaintiff stated that the loan should cover the travel costs of his escort, Ms. Tabbada, who had

been “helping [him] with medical and daily living needs since June of 2018.” Id. at 8. As to Ms.

Tabbada, Mr. Straw sought $1,500 in escort fees, a $900 per diem for 3 days of travel, $1,300 for

round-trip airfare with an “indefinite” return date, and a nonimmigrant business visa (a “B1

visa”). See id. at 9. In total, plaintiff requested that the State Department lend him $3,760 to

cover Ms. Tabbada travel expenses. Id. at 19. The following day, on March 24, 2019, upon the

request of ACS, Mr. Straw submitted the correct version of the form. Id.; see ECF 24-2 at 21-22

(5/24/2019 DS-3072 Form).

On June 3, 2019, Mr. Straw submitted a medical certificate from his doctor stating that he

was fit to travel to the United States. Id. ¶ 6. Ms. Tabbada “had an appointment for her B1 visa

on June 7, 2019.” ECF 1-2, ¶ 9. The same day, Mr. Straw spoke with ACS concerning his

request for a medical escort. Id. ¶ 7. The consular officer informed Mr. Straw that without

medical documentation demonstrating the need for a medical escort, the State Department could

not cover Ms. Tabbada’s travel costs. Id. According to the government, Mr. Straw responded

that he would provide additional documents to support his request for an escort. Id.

However, the government maintains that Mr. Straw never transmitted the requested

medical documents. Id. ¶ 9. Instead, between June 7 and June 12, 2019, Mr. Straw sent

“multiple correspondence” to ACS threatening to sue if the State Department did not make

arrangements for Ms. Tabbada to serve as his escort. Id. ¶ 10.

On June 13, 2019, Mr. Straw asked ACS when he could depart if he abandoned his

request for funds to cover Ms. Tabbada’s travel costs. Id. ¶ 11. ACS informed Mr. Straw the

same day that his repatriation loan would cover his transportation and incidental expenses, but no

other costs. Id. ACS indicated that if Mr. Straw was interested in proceeding, he could depart as

early as the next week. Id. Mr. Straw responded on June 14, 2019, that he would cover the cost

of Ms. Tabbada’s travel to the United States and therefore needed time to make arrangements.

Id. ¶ 12.

On July 2, 2019, Mr. Straw reported to ACS that Ms. Tabbada’s visa had been denied.

Id. ¶ 15; see ECF 1-2, ¶¶ 38-39, 41 (Mr. Straw averring that Ms. Tabbada’s visa was denied).

Mr. Straw reiterated his threat to sue the State Department and also requested to be flown to New

Zealand, instead of the United States. ECF 24-2, ¶ 16. However, ACS explained that

repatriation assistance was available only for travel to the United States. Id.

On July 5, 2019, Mr. Straw canceled his repatriation loan. Id. ¶ 19; see id. at 25

(7/5/2019 email). He stated, id. at 25: “The Repatriation Loan has left me feeling humiliated, not

just destitute.” Therefore, plaintiff informed the State Department that he wished to “completely

withdraw all authorization to purchase anything under the program and my application I filed

earlier.” Id.

This lawsuit followed on August 8, 2019. ECF 1.

II. Plaintiff’s Motions at ECF 33, 36, 37, and 38

Following the briefing of the dispositive motions, plaintiff submitted the following

filings: a “Motion To Take Notice” (ECF 33); “Motion for Declaratory Judgment” concerning

the Rehabilitation Act (ECF 36); “Motion To Take Notice Of Leslie C. Tabbada’s ‘Starving

Artist’ Status And O Visa Application, Inter Alia” (ECF 37); and a “Motion To Take Notice Of

Rule 8(b)(6) Applied To The Declaratory Judgment Motion And Proposed Order And Motion To

Take Judicial Notice.” ECF 38.

The government contends that the Court should decline to entertain these motions on the

ground that they are improper surreplies, citing Local Rule 105.2(a). ECF 34; ECF 38.

According to defendant, plaintiff’s motions “merely rehash[] arguments previously made” and

contain “purported facts [that] are not relevant to the issues before this Court.” ECF 34 at 3.

I agree with the government that although Mr. Straw’s filings are captioned as motions,

they are best characterized as surreplies. Much of the information contained in plaintiff’s

submissions are beyond the scope of the instant dispute. See, e.g., ECF 37 (describing Ms.

Tabbada’s artistic talents). However, to the extent that plaintiff’s filings address the merits of his

case, they attack arguments pressed by defendant in the Government Motion. For instance, ECF

33 responds to defendant’s contentions that the Rehabilitation Act does not have extraterritorial

reach and that a Bivens claim cannot lie against a federal agency. Compare ECF 24 at 12-13 and

ECF 31 at 4-6, with ECF 33 at 7-8. Likewise, ECF 36 relitigates the extraterritorial reach of the

Rehabilitation Act.

Local Rule 105.2(a) provides that a party is not permitted to file a surreply without

permission of the court. The filing of a surreply “is within the Court’s discretion, see Local Rule

105.2(a), but they are generally disfavored.” EEOC v. Freeman, 961 F. Supp. 2d 783, 801 (D.

Md. 2013), aff’d in part, 778 F.3d 463 (4th Cir. 2015); see e.g., Chubb & Son v. C & C Complete

Servs., LLC, 919 F. Supp. 2d 666, 679 (D. Md. 2013). A surreply may be permitted when the

party seeking to file the surreply “would be unable to contest matters presented to the court for

the first time” in the opposing party's reply. Clear Channel Outdoor, Inc. v. Mayor & City

Council of Baltimore, 22 F. Supp. 3d 519, 529 (D. Md. 2014) (quotations and citations omitted).

However, a surreply is not generally permitted where the reply is responsive to an issue raised in

the opposition. See Khoury v. Meserve, 268 F. Supp. 2d 600, 605-06 (D. Md. 2003).

The arguments in the motions could have been raised in plaintiff’s Opposition.

Therefore, plaintiff’s uninvited briefing following the government’s reply was unnecessary.

Plaintiff made no effort to comply with Local Rule 105.2(a). See ECF 32 (“I do not

move for permission to do a sur-reply, but I cannot allow counsel for the State Department to

mislead this Court.”). Accordingly, I shall deny ECF 33, ECF 36, ECF 37, and ECF 38 as

improper surreplies.

III. The Government Motion

A. Standards of Review

1. Fed. R. Civ. P. 12(b)(1)

Under Fed. R. Civ. P. 12(b)(1), the plaintiff bears the burden of proving, by a

preponderance of evidence, the existence of subject matter jurisdiction. See Demetres v. E. W.

Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); see also The Piney Run Preservation Ass’n v.

Cty. Comm’rs of Carroll Cty., 523 F.3d 453, 459 (4th Cir. 2008); Evans v. B.F. Perkins Co., 166

F.3d 642, 647 (4th Cir. 1999). A challenge to subject matter jurisdiction under Rule 12(b)(1)

may proceed “in one of two ways”: either a facial challenge or a factual challenge. Kerns v.

United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted); accord Hutton v. Nat’l Bd. of

Examiners Inc., 892 F.3d 613, 620-21 (4th Cir. 2018); Durden v. United States, 736 F.3d 296,

300 (4th Cir. 2013).

In a facial challenge, “the defendant must show that a complaint fails to allege facts upon

which subject-matter jurisdiction can be predicated.” Hutton, 892 F.3d at 621 n.7 (citing Beck v.

McDonald, 848 F.3d 262, 270 (4th Cir. 2017)); see also Kerns, 585 F.3d at 192. Alternatively,

in a factual challenge, “the defendant maintains that the jurisdictional allegations of the

complaint are not true.” Hutton, 892 F.3d at 621 n.7 (citing Beck, 848 F.3d at 270). In that

circumstance, the court “may regard the pleadings as mere evidence on the issue and may

consider evidence outside the pleadings without converting the proceeding to one for summary

judgment.” Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); see also Beck, 848

F.3d at 270; In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 333 (4th Cir. 2014); Evans, 166 F.3d

at 647.

The government raises a facial challenge to the Court’s subject matter jurisdiction,

asserting that the doctrine of sovereign immunity forecloses plaintiffs’ claims for monetary

damages. ECF 24-1 at 12-13. As indicated, this challenge is based on the four corners of the

Complaint.

The Fourth Circuit has said that the defense of sovereign immunity is a jurisdictional bar,

stating that “‘sovereign immunity deprives federal courts of jurisdiction to hear claims, and a

court finding that a party is entitled to sovereign immunity must dismiss the action for lack of

subject-matter jurisdiction.’” Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 649

(4th Cir. 2018) (citation omitted), cert. denied, ___ U.S. ___, 139 S. Ct. 417 (2018). But, a

defendant “bears the burden of demonstrating” sovereign immunity, because it is “akin to an

affirmative defense.” Hutto v. S.C. Ret. Sys., 773 F.3d 536, 543 (4th Cir. 2014).

2. Fed. R. Civ. P.56

As noted, the Government Motion is styled as a “Motion to Dismiss Plaintiff’s

Complaint, Or, In The Alternative For Summary Judgment.” ECF 24. Such a motion implicates

the court’s discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See Kensington

Volunteer Fire Dep’t, Inc. v. Montgomery Cty., 788 F. Supp. 2d 431, 436-37 (D. Md. 2011).

Ordinarily, a court “is not to consider matters outside the pleadings or resolve factual

disputes when ruling on a motion to dismiss.” Bosiger v. U.S. Airways, 510 F.3d 442, 450

(4th Cir. 2007). However, under Rule 12(b)(6), a court, in its discretion, may consider matters

outside of the pleadings, pursuant to Rule 12(d). If the court does so, “the motion must be

treated as one for summary judgment under Rule 56,” and “[a]ll parties must be given a

reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P.

12(d). But, when the movant expressly captions its motion “in the alternative” as one for

summary judgment, and submits matters outside the pleadings for the court’s consideration, the

parties are deemed to be on notice that conversion under Rule 12(d) may occur; the court “does

not have an obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports

Auth., 149 F.3d 253, 261 (4th Cir. 1998).5

A district judge has “complete discretion to determine whether or not to accept the

submission of any material beyond the pleadings that is offered in conjunction with a Rule

12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not

consider it.” 5 C WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 1366 (3d ed. 2018).

This discretion “should be exercised with great caution and attention to the parties’ procedural

rights.” Id. In general, courts are guided by whether consideration of extraneous material “is

likely to facilitate the disposition of the action,” and “whether discovery prior to the utilization of

the summary judgment procedure” is necessary. Id.

Summary judgment ordinarily is inappropriate “where the parties have not had an

opportunity for reasonable discovery.” E.I. du Pont de Nemours and Co. v. Kolon Indus., Inc.,

5 In contrast, a court may not convert a motion to dismiss to one for summary judgment

sua sponte, unless it gives notice to the parties that it will do so. See Laughlin, 149 F.3d at 261

(stating that a district court “clearly has an obligation to notify parties regarding any court-

instituted changes” in the posture of a motion, including conversion under Rule 12(d)); Finley

Lines Joint Protective Bd. Unit 200 v. Norfolk So. Corp., 109 F.3d 993, 997 (4th Cir. 1997)

(“[A] Rule 12(b)(6) motion to dismiss supported by extraneous materials cannot be regarded as

one for summary judgment until the district court acts to convert the motion by indicating that it

will not exclude from its consideration of the motion the supporting extraneous materials.”).

637 F.3d 435, 448-49 (4th Cir. 2011); see Zak v. Chelsea Therapeutics Int’l, Ltd., 780 F.3d 597,

606 (4th Cir. 2015). As the Fourth Circuit has said, when a district judge rules on a summary

judgment motion prior to discovery, it is akin to “for[cing] the non-moving party into a fencing

match without a sword or mask.” McCray v. Md. Dep’t of Transp., 741 F.3d 480, 483 (4th

Cir. 2014); accord Putney v. Likin, 656 F. App’x 632, 639 (4th Cir. 2016) (per curiam).

However, “the party opposing summary judgment ‘cannot complain that summary

judgment was granted without discovery unless that party has made an attempt to oppose the

motion on the grounds that more time was needed for discovery.’” Harrods Ltd. v. Sixty Internet

Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv.

Co., 80 F.3d 954, 961 (4th Cir. 1996)). To raise adequately the issue that discovery is needed,

the nonmovant typically must file an affidavit or declaration pursuant to Rule 56(d) (formerly

Rule 56(f)), explaining why, “for specified reasons, it cannot present facts essential to justify its

opposition,” without needed discovery. Fed. R. Civ. P. 56(d); see Harrods, 302 F.3d at 244-45

(discussing affidavit requirement of former Rule 56(f)).

“To justify a denial of summary judgment on the grounds that additional discovery is

necessary, the facts identified in a Rule 56 affidavit must be ‘essential to [the] opposition.’” Scott

v. Nuvell Fin. Servs., LLC, 789 F. Supp. 2d 637, 641 (D. Md. 2011) (alteration in original)

(citation omitted), rev’d on other grounds sub. nom. Gardner v. Ally Fin., Inc., 514 F. App’x 378

(4th Cir. 2013) (per curiam). A nonmoving party’s Rule 56(d) request for additional discovery is

properly denied “where the additional evidence sought for discovery would not have by itself

created a genuine issue of material fact sufficient to defeat summary judgment.” Strag v. Bd. of

Trs., Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995); see McClure v. Ports, 914 F.3d 866,

874 (4th Cir. 2019); Pisano v. Strach, 743 F.3d 927, 931 (4th Cir. 2014); Amirmokri v. Abraham,

437 F. Supp. 2d 414, 420 (D. Md. 2006), aff’d, 266 F. App’x 274 (4th Cir. 2008) (per curiam),

cert. denied, 555 U.S. 885 (2008).

If a nonmoving party believes that further discovery is necessary before consideration of

summary judgment, the party who fails to file a Rule 56(d) affidavit does so at his peril, because

“‘the failure to file an affidavit . . . is itself sufficient grounds to reject a claim that the

opportunity for discovery was inadequate.’” Harrods, 302 F.3d at 244 (citations omitted). But,

the non-moving party’s failure to file a Rule 56(d) affidavit cannot obligate a court to issue a

summary judgment ruling that is obviously premature.

Although the Fourth Circuit has placed “‘great weight’” on the Rule 56(d) affidavit, and

has said that a mere “‘reference to Rule 56(f) [now Rule 56(d)] and the need for additional

discovery in a memorandum of law in opposition to a motion for summary judgment is not an

adequate substitute for [an] affidavit,’” the appellate court has “not always insisted” on a Rule

56(d) affidavit. Id. (internal citations omitted). According to the Fourth Circuit, failure to file an

affidavit may be excused “if the nonmoving party has adequately informed the district court that

the motion is premature and that more discovery is necessary” and the “nonmoving party’s

objections before the district court ‘served as the functional equivalent of an affidavit.’” Id. at

244-45 (internal citations omitted).

Plaintiff, who is a lawyer, has not filed a Rule 56(d) Affidavit. Nor does he oppose

assessing the Government Motion under Rule 56. To the contrary, Mr. Straw moved for

summary judgment before the government, arguing that “summary judgment is appropriate”

because the facts are “indisputable.” ECF 20 at 1. And, in his Opposition to the Government

Motion, he does not contend that discovery is warranted. ECF 25. Moreover, plaintiff has

inundated the Court with affidavits and “Notice[s]” in support of his claims and in opposing the

government’s contentions. See ECF 25-1 to ECF 25-6; ECF 26; ECF 32; ECF 33; ECF 37; ECF

38; ECF 42; ECF 43; ECF 44; ECF 45. Therefore, I shall consider the Government Motion

under Fed. R. Civ. P. 56.

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is

appropriate only “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.” See Celotex Corp. v. Catrett, 477 U.S.

317, 322-24 (1986); see also Variety Stores, Inc. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th

Cir. 2018); Iraq Middle Mkt. Dev. Found v. Harmoosh, 848 F.3d 235, 238 (4th Cir. 2017). To

avoid summary judgment, the nonmoving party must demonstrate that there is a genuine dispute

of material fact so as to preclude the award of summary judgment as a matter of law. Ricci v.

DeStefano, 557 U.S. 557, 585-86 (2009); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 585-86 (1986); see also Gordon v. CIGNA Corp., 890 F.3d 463, 470 (4th

Cir. 2018).

The Supreme Court has clarified that not every factual dispute will defeat a summary

judgment motion. “By its very terms, this standard provides that the 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 (1986) (emphasis in original). A

fact is “material” if it “might affect the outcome of the suit under the governing law.” Id. at 248.

There is a genuine issue as to material fact “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Id.; see Variety Stores, Inc., 888 F.3d at 659;

Sharif v. United Airlines, Inc., 841 F.3d 199, 2014 (4th Cir. 2016); Raynor v. Pugh, 817 F.3d

123, 130 (4th Cir. 2016); Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013).

On the other hand, summary judgment is appropriate if the evidence “is so one-sided that one

party must prevail as a matter of law.” Anderson, 477 U.S. at 252. But, “the mere existence of a

scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be

evidence on which the jury could reasonably find for the plaintiff.” Id.

“A party opposing a properly supported motion for summary judgment ‘may not rest

upon the mere allegations or denials of [her] pleadings,’ but rather must ‘set forth specific facts

showing that there is a genuine issue for trial.’” Bouchat v. Balt. Ravens Football Club, Inc., 346

F.3d 514, 522 (4th Cir. 2003) (quoting former Fed. R. Civ. P. 56(e)), cert. denied, 541 U.S. 1042

(2004); see also Celotex, 477 U.S. at 322-24. And, the court must view all of the facts, including

reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party.

Ricci, 557 U.S. at 585-86; Matsushita Elec. Indus. Co., 475 U.S. at 587; accord Hannah P. v.

Coats, 916 F.3d 327, 336 (4th Cir. 2019); Variety Stores, Inc., 888 F.3d at 659; Gordon, 890

F.3d at 470; Lee v. Town of Seaboard, 863 F.3d 323, 327 (4th Cir. 2017); FDIC v. Cashion, 720

F.3d 169, 173 (4th Cir. 2013).

The district court’s “function” is not “to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249;

accord Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). Thus, in

considering a summary judgment motion, the court may not make credibility determinations.

Wilson v. Prince George’s Cty., 893 F.3d 213, 218-19 (4th Cir. 2018); Jacobs v. N.C.

Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); Mercantile Peninsula

Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007). Therefore, in the face of conflicting

evidence, such as competing affidavits, summary judgment ordinarily is not appropriate, because

it is the function of the fact-finder to resolve factual disputes, including matters of witness

credibility. See Black & Decker Corp. v. United States, 436 F.3d 431, 442 (4th Cir. 2006);

Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002).

When, as here, the parties have filed cross-motions for summary judgment, the court

“‘consider[s] each motion separately on its own merits to determine whether either of the parties

deserves judgment as a matter of law.’” Def. of Wildlife v. N.C. Dep’t of Transp., 762 F.3d 374,

392 (4th Cir. 2014) (citation omitted). In doing so, the court “‘resolve[s] all factual disputes and

any competing, rational inferences in the light most favorable to the party opposing that

motion.’” Id. at 393 (quoting Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003), cert.

denied, 540 U.S. 822 (2003)); see Mellen v. Bunting, 327 F.3d 355, 363 (4th Cir. 2003).

Simply because both parties have filed for summary judgment does not mean that

summary judgment to one party or another is necessarily appropriate. Rather, “[b]oth motions

must be denied if the court finds that there is a genuine issue of material fact.” 10A WRIGHT,

MILLER & KANE, FEDERAL PRACTICE & PROCEDURE § 2720 (4th ed. 2019).

B. Sovereign Immunity

1. Sovereign Immunity generally

The government argues that to the extent plaintiff seeks money damages, his claims are

foreclosed by sovereign immunity. ECF 24-1 at 11-13.

As a general rule, the United States and its agencies are immune from suit. See FDIC v.

Meyer, 510 U.S. 471, 475 (1994); Dalehite v. United States, 346 U.S. 15, 30 (1953); Robinson

v. U.S. Dep’t of Educ., 917 F.3d 799, 801 (4th Cir. 2019); Bullock v. Napolitano, 666 F.3d 281,

284 (4th Cir. 2012). This is so because a sovereign “is immune from suit save as it consents to

be sued.” United States v. Sherwood, 312 U.S. 584, 586 (1941) (citations omitted); see United

States v. Mitchell, 463 U.S. 206, 212 (1983) (observing that it is “axiomatic that the United

States may not be sued without its consent”).

Sovereign immunity is no ordinary defense. Rather, it deprives the court of subject

matter jurisdiction. See Mitchell, 463 U.S. at 212 (recognizing that the sovereign’s consent is “a

prerequisite for jurisdiction”); see also Meyer, 510 U.S. at 475; Sherwood, 312 U.S. at 586;

Bullock, 666 F.3d at 284. Thus, a court has no authority over the United States unless Congress

waives the federal government’s sovereign immunity. See Meyer, 510 U.S. at 475; Robinson,

917 F.3d at 801.

As a federal agency, the State Department enjoys “a presumption of immunity from the

present lawsuit.” Robinson, 917 F.3d at 801. And, Mr. Straw, as the plaintiff, has the “burden

to show that an unequivocal waiver of sovereign immunity exists and that none of the statute’s

waiver exceptions apply to his particular claim.” United States v. Welch, 409 F.3d 646, 651

(4th Cir. 2005); see Robinson, 917 F.3d at 801; Williams v. United States, 50 F.3d 299, 304 (4th

Cir. 1995).

A “waiver of sovereign immunity must be unequivocally expressed in statutory text,” and

the waiver must be “clearly evident from the language of the statute.” FAA v. Cooper, 566 U.S.

284, 290 (2012) (internal quotation marks omitted); see Lane v. Pena, 518 U.S. 187, 192 (1996)

(observing that a waiver of sovereign immunity “must be unequivocally expressed in statutory

text, and will not be implied”); United States v. King, 395 U.S. 1, 4 (1969) (same). In other

words, a waiver of sovereign immunity “cannot contain an ambiguity, which ‘exists if there is a

plausible interpretation of the statute that would not authorize money damages against the

Government.’” Robinson, 917 F.3d at 802 (quoting Cooper, 566 U.S. 290-91). Moreover,

“[a]ll waivers of sovereign immunity must be ‘strictly construed in favor of the sovereign.’”

Williams, 50 F.3d at 650 (ellipses omitted) (quoting Lane, 518 U.S. at 192). Simply put,

sovereign immunity “can only be waived by statutory text that is unambiguous and

unequivocal.” Robinson, 917 F.3d at 802.

As the Fourth Circuit has observed, “[a] strong doctrine of sovereign immunity is

nowhere more important than for damages claims.” Robinson, 917 F.3d at 801. Indeed,

“[m]oney judgments against a sovereign allow ‘the judgment creditor’ to compete with ‘other

important needs and worthwhile ends for access to the public fisc.’” Id. (ellipses omitted)

(quoting Alden v. Maine, 527 U.S. 706, 751 (1999)).

2. Analysis

Applying the principles of sovereign immunity to this case, this Court is without

jurisdiction to consider plaintiff’s claims for damages. I address each claim, in turn.

In Count I, plaintiff seeks $52,000 for violations of his right to substantive due process,

pursuant to Bivens, 403 U.S. 388. ECF 1, ¶¶ 16-17. Under Bivens, a federal official may be

held personally liable for damages if the official personally violated the plaintiff’s constitutional

rights. See generally Hernandez v. Mesa, ___ U.S. ___, 140 S. Ct. 735 (2020) (discussing the

scope of Bivens remedies); Tun-Cos v. Perrotee, 922 F.3d 514, 520 (4th Cir. 2019).

In the wake of Bivens, the Supreme Court has been reluctant to imply other private

actions against federal officers for money damages, recognizing a Bivens remedy in just two

cases. In Davis v. Passman, 442 U.S. 228, 248-49 (1979), the Court recognized that the equal

protection component of the Fifth Amendment’s Due Process Clause provided a damages

remedy for an assistant who alleged that a Congressman fired her because she was a woman.

And, in Carlson v. Green, 446 U.S. 14, 19 (1980), the Court held that the Eighth Amendment’s

Cruel and Unusual Punishments Clause provided a damages remedy for the estate of a prisoner

who died due to the alleged failure of federal jailers to provide adequate medical care.

However, since Carlson, the Court has repeatedly refused to extend the Bivens doctrine

to new factual scenarios. See Tun-Cos, 922 F.3d at 521 (cataloguing the nine Supreme Court

cases rejecting Bivens claims). And, the Court has admonished that expanding Bivens is a

“‘disfavored’ judicial activity” that should not be undertaken lightly. Ziglar v. Abbasi, ___ U.S.

___, 137 S. Ct. 1843, 1857 (2017) (citation omitted).

Of import here, Bivens liability does not run against a federal agency. In FDIC v. Meyer,

510 U.S. 471 (1994), the Supreme Court considered whether a Bivens action could be brought

directly against a federal agency, as opposed to the federal agents in their individual capacities.

Id. at 473-44. The Court unanimously declined to extend Bivens to agencies, reasoning that if it

“impl[ied] a damages action against federal agencies . . . there would be no reason . . . to bring

damages actions against individual officers [and] . . . the deterrent effects of the Bivens remedy

would be lost.” Id. at 485. Thus, following Meyers it is axiomatic that “[a]ny remedy under

Bivens is against federal officials individually, not the federal government.” Randall v. United

States, 95 F.3d 339, 345 (4th Cir. 1996); see also Doe v. Chao, 306 F.3d 170, 184 (4th Cir.

2002).

Here, plaintiff has only sued the State Department, a federal agency. Therefore, the

Court is without jurisdiction to entertain plaintiff’s Bivens claim.

In Count II, plaintiff seeks $1,000,000 on the ground that the State Department violated

the ECOA and the Rehabilitation Act. ECF 1, ¶¶ 19-22. Neither statute, however, contains an

unambiguous waiver of the government’s sovereign immunity applicable to Mr. Straw.

The ECOA provides a cause of action for discrimination in credit transactions.

Specifically, ECOA makes it “unlawful for any creditor to discriminate against any applicant,

with respect to any aspect of a credit transaction” either “on the basis of race, color, religion,

national origin, sex or marital status, or age” or “because all or part of the applicant’s income

derives from any public assistance program.” 15 U.S.C. § 1691(a)(1). Notably, because ECOA

defines a “creditor” to include the United States government, see id. §§ 1691a(e), (f), it waives

the sovereign immunity of the United States for claims brought under the ECOA. See Moore v.

U.S. Dep’t of Agric, 55 F.3d 991, 994-95 (5th Cir.1995); Benoit v. U.S. Dep’t of Agric., 577 F.

Supp. 2d 12, 17 (D.D.C. 2008); Williams v. Conner, 522 F. Supp. 2d 92, 99 (D.D.C. 2007).

Mr. Straw asserts that the State Department is liable under ECOA because it engaged in

“discrimination based on disability in lending and the repatriation loan is a lending program.”

ECF 1, ¶ 21; see also ECF 25 at 17 (arguing that “[i]nstead of respecting my disabilities, the

State Department . . . den[ied] me credit while completely disregarding my disabilities and

rejecting my accommodations for them”). ECOA does not, however, proscribe lending

discrimination on the basis of disability. See, e.g., Thiel v. Veneman, 859 F. Supp. 2d 1182,

1188 (D. Mont. 2012) (dismissing ECOA claim predicated on disability for failure to state a

claim).

Perhaps ECOA should cover disability. But, courts “do not sit as councils of revision,

empowered to rewrite legislation in accord with their own conceptions of prudent public

policy.” United States v. Rutherford, 442 U.S. 544, 555 (1979). It follows that because the text

of ECOA is silent as to disability discrimination, it does not unambiguously waive the

government’s sovereign immunity with respect to Mr. Straw’s claim.

Finally, plaintiff seeks to recover damages under Section 504 of the Rehabilitation Act,

which provides: “No otherwise qualified individual with a disability in the United States . . .

shall, solely by reason of her or his disability, be excluded from the participation in, be denied

the benefits of, or be subjected to discrimination under any program or activity receiving

Federal financial assistance . . . .” 29 U.S.C. § 794(a); see ECF 1, ¶ 19. Defendant asserts that

plaintiff’s claim is barred by sovereign immunity because the Rehabilitation Act waives the

government’s sovereign immunity only for discrimination that occurs “in the United States,”

and Mr. Straw resides in the Philippines. ECF 24-1 at 12-13. Additionally, the government

argues that the Rehabilitation Act does not waive the federal government’s sovereign immunity

against monetary damages. Id. at 13 (citing Lane, 518 U.S. 187).

Two principles guide the Court’s analysis. First, as noted, the doctrine of sovereign

immunity shields the government from liability except when waived by statute, and any such

waiver “must be ‘strictly construed in favor of the sovereign.’” Welch, 409 F.3d at 650 (ellipses

omitted) (quoting Lane, 518 U.S. at 192). Second, “[i]t is a longstanding principle of American

law that legislation of Congress, unless a contrary intent appears, is meant to apply only within

the territorial jurisdiction of the United States.” Morrison v. Nat’l Austl. Bank Ltd., 561 U.S.

247, 255 (2010); see also Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 115 (2013);

EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991). The presumption against

extraterritoriality “rests on the perception that Congress ordinarily legislates with respect to

domestic, not foreign matters.” Morrison, 561 U.S. at 255. Thus, a statute is presumed to stop

at the borders of the United States, absent clear congressional intent of extraterritoriality. See

id.; see also RJR Nabisco, Inc. v. European Cmty., ___ U.S. ___, 136 S. Ct. 2090, 2102 (2016)

(explaining that “the presumption can be overcome only by a clear indication of extraterritorial

effect,” although “an express statement of extraterritoriality is not essential”); Kiobel, 569 U.S.

at 118; Reyes-Gaona v. N.C. Growers Assoc., 250 F.3d 861, 864 (4th Cir. 2001) (“The

presumption against extraterritoriality ‘can be overcome only if there is an ‘affirmative intention

of the Congress clearly expressed.’”) (quoting Aramco, 499 U.S. at 248). Stated otherwise,

“[w]hen a statute gives no clear indication of an extraterritorial application, it has none.”

Morrison, 561 U.S. at 255.

The Rehabilitation Act evinces no congressional intent to extend protection to individuals

located outside the jurisdiction of the United States. To the contrary, the statute expressly limits

its scope to “individual[s] with a disability in the United Sates.” 29 U.S.C. § 794(a). Thus, by

its own terms, the Rehabilitation Act supports rather than rebuts the presumption against

extraterritoriality. This language, read in light of the canon that waivers of sovereign immunity

are construed in favor of the government, makes clear that the Rehabilitation Act does not

protect individuals located abroad. See Awodiya v. Ross Univ. Sch. of Med., 391 F. Supp. 3d

1098, 1104 (S.D. Fla. 2019) (concluding that the Rehabilitation Act does not rebut the

presumption against extraterritoriality), appeal docketed No. 19-12832 (11th Cir. July 18,

2019); Galligan v. Adtalem Glob. Educ. Inc., No. 17 C 6310, 2019 WL 423356, at *3 (N.D. Ill.

Feb. 4, 2019) (same); Archut v. Ross Univ. Sch. of Veterinary Med., No. CIV.A. 10-1681 MLC,

2012 WL 5867148, at *11 (D.N.J. Nov. 19, 2012) (same), aff’d, 580 F. App’x 90 (3d Cir.

2014).

Plaintiff resists the conclusion that the Rehabilitation Act applies only domestically,

relying on a 2013 report by the National Council on Disability. See ECF 25, ¶ 41 (citing NAT’L

COUNCIL ON DISABILITY, TOWARD THE FULL INCLUSION OF PEOPLE WITH DISABILITIES:

EXAMINING THE ACCESSIBILITY OF OVERSEAS FACILITIES AND PROGRAMS FUNDED BY THE

UNITED STATES 44 (March 20, 2013) www.ncd.gov/publications/2013/032013). The report

suggests that Section 504 the Rehabilitation Act applies to Americans abroad on the basis of a

pair of cases, Bird v. Lewis & Clark Coll., 104 F. Supp. 2d 1271 (D. Or. 2000), aff’d, 303 F.3d

1015 (9th Cir. 2002) and King v. Bd. of Control of E. Mich. Univ., 221 F. Supp.2d 783 (E.D.

Mich. 2002). However, neither decision is persuasive. Notably, other courts faced with

deciding whether the Rehabilitation Act applies abroad have rejected the reasoning and result of

Bird and King. See Archut, 2012 WL 5867148, at *6-7.

In Bird, 104 F. Supp. 2d at 1274, the district court found that the plaintiff could bring

claims under the Rehabilitation Act and the Americans with Disabilities Act (“ADA”) against

an American college for alleged discrimination that occurred while the plaintiff studied abroad.

But, the court failed to assess the statutes separately, even though the ADA does not include the

“in the United States” language, unlike the Rehabilitation Act. See id. at 1274-76. Because the

Ninth Circuit resolved the case on other grounds, it declined to address the college’s argument

that the Rehabilitation Act did not apply extraterritorially. Bird, 303 F.3d 1015 n.1.

The case of King, 221 F. Supp. 2d 783, is similarly unhelpful. It concerned a different

federal statute (Title IX), involved starkly different facts than those present here (discrimination

suffered by a student while studying abroad on a program maintained by an American

university), and predates Morrison, 561 U.S. 247, in which the Supreme Court recast the test for

whether a statute has extraterritorial reach from a freewheeling purpose-mining inquiry to one

principally focuses on statutory text.

As indicated, the Rehabilitation Act does not apply abroad. Therefore, the Court must

“determine whether this case involves a domestic application of the statute,” which entails

“looking to the statute’s ‘focus.’” RJR Nabisco, 136 S. Ct. at 2101. “If the conduct relevant to

the statute’s focus occurred in the United States, then the case involves a permissible domestic

application even if other conduct occurred abroad.” Id. On the other hand, “if the conduct

relevant to the focus occurred in a foreign country, then the case involves an impermissible

extraterritorial application regardless of any other conduct that occurred in U.S. territory.” Id.;

see also Roe v. Howard, 917 F.3d 229, 240 (4th Cir. 2019) (discussing the two-step framework

explicated in RJR Nabisco).

There is no genuine issue of material fact that the alleged discrimination that forms the

basis of plaintiff’s Complaint occurred in the Philippines, where both Mr. Straw and Ms.

Tabbada were located at the relevant time. Mr. Straw applied for a repatriation loan through the

U.S. embassy in the Philippines and he communicated with ACS staff located in the

Philippines. Indeed, plaintiff’s theory of this case is that the State Department has prevented his

repatriation to the United States. Accordingly, because the Rehabilitation Act does not apply

extraterritorially, and the alleged discrimination occurred in the Philippines, the Rehabilitation

Act does not waive the government’s sovereign immunity as to plaintiff’s claim.

In sum, plaintiff’s claims for monetary damages are foreclosed by sovereign immunity.

Thus, the government is entitled to summary judgment on plaintiff’s claims brought under

Bivens, ECOA, and the Rehabilitation Act.

C. Plaintiff’s Request for Injunctive Relief

In his Complaint, Mr. Straw seeks an injunction requiring the State Department to issue

Ms. Tabbada a B1 nonimmigrant visa. ECF 1, ¶ 29. In response, the government argues that

such relief is foreclosed by the doctrine of consular nonreviewability. ECF 24-1 at 13-18.

Policies concerning the admissibility of aliens are “vitally and intricately interwoven with

contemporaneous policies in regard to the conduct of foreign relations, the war power, and the

maintenance of a republican form of government.” Harisiades v. Shaughnessy, 342 U.S. 580,

588-89 (1952). Because these powers are “exclusively entrusted to the political branches of

government,” id. at 589, the admission and exclusion of foreign nationals is “‘largely immune

from judicial control.’” Trump v. Hawaii, ___ U.S. ___, 138 S. Ct. 2392, 2418 (2018) (citation

omitted). Thus, it is “not within the province of any court, unless expressly authorized by law, to

review the determination of the political branch of the Government to exclude a given alien.”

U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950); see Hawaii, 138 S. Ct. at 2418-19;

Lem Moon Sing v. United States, 158 U.S. 538, 547 (1895) (“The power of Congress to exclude

aliens altogether from the United States, or to prescribe the terms and conditions upon which

they may come to this country, and to have its declared policy in that regard enforced exclusively

through executive officers, without judicial intervention, is settled by our previous

adjudications.”).

To my knowledge, the Fourth Circuit has not yet recognized the “doctrine of consular

nonreviewability.” But, other circuits, as well as district courts within the Fourth Circuit, have

recognized that courts cannot second guess a consular officer’s decision to grant or deny a visa

application. See City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., 944

F.3d 773, 791 (9th Cir. 2019); Yafai v. Pompeo, 912 F.3d 1018, 1020-21 (7th Cir. 2017);

Onuchukwu v. Clinton, 408 F. App’x 558, 560 (3d Cir. 2010) (per curiam); Am. Acad. of

Religion v. Napolitano, 573 F.3d 115, 123 (2d Cir. 2009); Saavedra Bruno v. Albright, 197 F.3d

1153, 1159 (D.C. Cir. 1999); see also Abebe v. Perez, No. 3:14-cv-4415, 2016 WL 454897, at

*1-2 (D.S.C. Feb. 5, 2016); Macena v. U.S. Citizenship & Immigration Servs., TDC-14-3464,

2015 WL 6738923, at *4 (D. Md. Nov. 2, 2015); Adeyemo v. Kerry, DKC-12-0874, 2013 WL

498169, at *2 (D. Md. Feb. 7, 2013), aff’d, 546 F. App’x 187 (4th Cir. 2013); Rodriguez Ramirez

v. Clinton, No. 5:12-cv-00252-BR, 2013 WL 227732 (E.D.N.C. Jan. 22, 2013), aff’d, 537 F.

App’x 209 (4th Cir. 2013); Romero v. Consulate of U.S., Barranquilla, Colombia, 860 F. Supp.

319, 322 (E.D. Va. 1994).

The doctrine of consular nonreviewability of visa determinations “is essentially without

exception.” Romero, 860 F. Supp. at 322. Were it otherwise, “federal courts would be inundated

with claims of disappointed and disgruntled off-shore aliens seeking review of consular officers’

denials of their requests for nonimmigrant visitor’s visas.” Id. at 324. That said, the Supreme

Court recognized a limited exception to the consular nonreviewability doctrine in Kleindienst v.

Mandel, 408 U.S. 753 (1972). There, the Court held that the denial of a visa is subject to review

where the denial implicates the constitutional rights of a United States citizen. See id. at 765-90;