Tuaua v. United States of America

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

LENEUOTI FIAFIA TUAUA, et al., )

)

Plaintiffs, )

)

v. ) Civil Case No. 12-01143 (RJL)

)

UNITED STATES OF AMERICA, et al., )

)

Dekndanh. )

MEMORA~OPINION

June2h_, 2013 [# 9]

Plaintiffs are five non-citizen U.S. nationals born in American Samoa and the

Samoan Federation of America, a nonprofit organization serving the Samoan community

in Los Angeles. Compl. ~~ I 0-15. 1 They seek declaratory and injunctive relief against

defendants, the United States and the related parties that execute its citizenship laws. /d.

~~ 16-19. 2 They assert that the Fourteenth Amendment's Citizenship Clause extends to

American Samoa and that people born in American Samoa are therefore U.S. citizens at

birth. !d. at 25-26. Plaintiffs also argue that Immigration and Naturalization Act §

308(1) is unconstitutional because it provides that American Samoans are noncitizen U.S.

nationals. See id. at 26. Further, they ask the Court to hold that a State Department

policy and practice are unconstitutional and invalid under the Administrative Procedure

1 The five individual plaintiffs are Leneuoti Fiafia Tuaua ("Tuaua"), Va'aleama Tovia

Fosi ("FosP'), Fanuatanu Fauesala Lifa Mamea ("Mamea"), Taffy-Lei T. Maene

("Maene"), and Emy Fiatala Afaleva ("Afaleva"). Mamea also brings his claims on

behalf of his three minor children. !d. ~ 12(a).

2 Defendants are the United States, the State Department, the Secretary of State, and the

Assistant Secretary of State for Consular Affairs.

1

Act ("APA"). See Compl. at 26. Underlying all of these claims is the same legal

argument: the Citizenship Clause applies to American Samoa, so contrary law and policy

must be invalidated. The United States and related parties move to dismiss plaintiffs'

complaint pursuant to Federal Rule of Civil Procedure 12(b) for lack of subject-matter

jurisdiction and failure to state a claim. See Mem. of P. & A. in Supp. of Defs.' Mot. to

Dismiss ("Defs.' Mem. ") [Dkt. # 9] at 1. Because plaintiffs have failed to state a claim

upon which relief can be granted, the Court GRANTS defendants' Motion to Dismiss.

BACKGROUND

American Samoa is located on the eastern islands of an archipelago in the South

Pacific. Compl., 3. The United States claimed this territory in a 1900 treaty with Great

Britain and Germany, 31 Stat. 1878, and Samoan leaders formally ceded sovereignty to

the United States in 1900 and 1904,45 Stat. 1253. American Samoa was administered by

the Secretary ofthe Navy until1951, when President Truman transferred administrative

responsibility to American Samoa's current supervisor, the Secretary of the Interior.

Exec. Order No. 10,264, 16 Fed. Reg. 6,417 (July 3, 1951).

Over the past half-century, American Samoa has strengthened its ties to the United

States. The Constitution of American Samoa was approved by the Secretary of the

Interior in 1967 and provides for an elected bicameral legislature, an appointed governor,

and an independent judiciary. Compl., 27. In 1977, the Secretary permitted the

governor to be selected by popular vote. !d. One year later, Congress voted to give

2

American Samoa a nonvoting delegate in the U.S. House of Representatives. !d. 3

American Samoans have served in the U.S. military since 1900 and, most recently, in the

wars in both Iraq and Afghanistan. !d. ~ 31. In signing the 1978 legislation granting

American Samoa a delegate in Congress, President Carter acknowledged the islands'

contributions to American sports and culture and their role as "a permanent part of

American political life." Jimmy Carter, Presidential Statement on Signing H.R. 13 702

into Law (Oct. 31, 1978), cited in Pis.' Mem. ofP. & A. in Opp'n to Gov't's Mot.

Dismiss ("Pis.' Opp'n") [Dkt. # 18] at 5 n. 7.

At the same time, however, American Samoa has endeavored to preserve its

traditional way of life known as fa 'a Samoa. Indeed, its constitution protects the Samoan

tradition of communal ownership of ancestral lands by large, extended families:

It shall be the policy of the Government of American Samoa to protect persons of

Samoan ancestry against alienation of their lands and the destruction of the

Samoan way of life and language, contrary to their best interests. Such legislation

as may be necessary may be enacted to protect the lands, customs, culture, and

traditional Samoan family organization of persons of Samoan ancestry, and to

encourage business enterprises by such persons. No change in the law respecting

the alienation or transfer of land or any interest therein, shall be effective unless

the same be approved by two successive legislatures by a two-thirds vote of the

entire membership of each house and by the Governor.

Rev. Const. of Am. Samoa art. I, § 3; see also Craddick v. Territorial Registrar, 1 Am.

Samoa 2d 11, 12 (1980); Amicus Br. at 4-5. American Samoans take pride in their

unique political and cultural practices, and they celebrate its history free from conquest or

involuntary annexation by foreign powers. Amicus Br. at 3.

3The current delegate, Eni F. H. Faleomavaega, appears as Amicus Curiae in this case

opposing the plaintiffs' suit. See generally Br. of the Hon. Eni F.H. Faleomavaega as

Amicus Curiae in Supp. ofDefs. ("Amicus Br.") [Dkt. # 12].

3

Federal law classifies American Samoa as an "outlying possession" of the United

States. Immigration and Naturalization Act ("INA")§ 101(a)(29), 8 U.S.C. §

1101(a)(29). As such, people born in American Samoa are U.S. nationals but not U.S.

citizens at birth. INA§ 308(1), 8 U.S.C. § 1408(1). The State Department's Foreign

Affairs Manual ("F AM") accordingly categorizes American Samoa as an unincorporated

territory and states that "the citizenship provisions of the Constitution do not apply to

persons born there." 7 FAM § 1125.l(b). In accordance with INA and FAM, the State

Department stamps the passports of people born in American Samoa with "Endorsement

Code 09," which declares that the holder of the passport is a U.S. national but not a U.S.

citizen. See Compl. ~ 7; Defs.' Mem. at 6-7. American Samoans have been permitted to

become naturalized U.S. citizens since 1952, but plaintiffs describe that process as

"lengthy, costly, and burdensome." Compl. ~~ 47-48. American Samoans must relocate

to another part of the United States to begin the naturalization process, and the citizenship

application requires a $680 fee, a moral character assessment, fingerprinting, and an

English and civics examination. Pis.' Opp'n at 11.

All ofthe individual plaintiffs were issued passports by the State Department

bearing Endorsement Code 09. See id. ~~ 10-14. Plaintiffs allege a variety of harms that

have befallen them due to their non-citizen national status. Several plaintiffs, despite

long careers in the military or law enforcement, remain unable to vote or to work in jobs

that require citizenship status. !d.~ 10(c), 11(c)-(e), 14(c)-(d). Other harms include:

ineligibility for federal work-study programs in college, id. ~ 11 (c); ineligibility for

4

firearm permits, id. ~ 11(e); and inability to obtain travel and immigration visas, id. ~

12(e), 13(d-e).

STANDARD OF REVIEW

Pursuant to the Federal Rules of Civil Procedure, defendants have moved to

dismiss plaintiffs' complaint for lack of subject-matter jurisdiction under Rule 12(b)(l)

and for failure to state a claim under Rule 12(b )( 6). See Defs.' Mot. to Dismiss Pis.'

Compl. ("Defs.' Mot.") [Dkt. # 9] at 1. For a motion to dismiss under Rule 12(b)(l), "the

plaintiff bears the burden of establishing the factual predicates of jurisdiction by a

preponderance of the evidence." Erby v. United States, 424 F. Supp. 2d 180, 182 (D.D.C.

2006) (citing, inter alia, Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).

"[P]laintiffs factual allegations in the complaint ... will bear closer scrutiny in resolving

a 12(b)(l) motion than in resolving a 12(b)(6) motion for failure to state a claim." US.

ex rei. Digital Healthcare, Inc. v. Affiliated Computer, 778 F. Supp. 2d 37, 43 (D.D.C.

2011) (citation and internal quotation marks omitted).

A motion to dismiss under Rule 12(b)(6) tests whether the plaintiff has pleaded

facts sufficient to "raise a right to relief above the speculative level," assuming that the

facts alleged are true. Bell At!. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "While a

complaint should not be dismissed unless the court determines that the allegations do not

support relief on any legal theory, the complaint nonetheless must set forth sufficient

information to suggest that there is some recognized legal theory upon which relief may

be granted." District of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1078 (D.C. Cir. 1984).

5

In considering motions under both Rule 12(b)( 1) and Rule 12(b)( 6), a court must

construe the complaint in a light favorable to the plaintiff and must accept as true

plaintiffs reasonable factual inferences. See Howard v. Fenty, 580 F. Supp. 2d 86, 89-

90 (D.D.C. 2008); Smith v. United States, 475 F. Supp. 2d 1, 7 (D.D.C. 2006) (citing

EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621,624 (D.C. Cir. 1997)).

ANALYSIS

I. Jurisdiction

Before the Court can reach the merits of this case, it must, of course, ensure that

the dispute falls within its jurisdiction. Uti!. Air Regulatory Grp. v. EPA, 320 F .3d 272,

277 (D.C. Cir. 2003). Defendants put forth three arguments contesting this Court's

jurisdiction over plaintiffs' claims: 1) two of plaintiffs' AP A claims are jurisdictionally

time-barred, 2) the Samoan Federation of America lacks standing, and 3) plaintiffs'

complaint is barred by the political question doctrine. See Defs.' Mem. at 17-18, 19-23.

For the reasons set forth below, the Court finds that it has jurisdiction.

First, defendants allege that two ofthe five individual plaintiffs' APA claims are

time-barred because their passports, bearing Endorsement Code 09, were issued outside

the six year limitations period. See Defs.' Mem. at 20-21. 4 Putting aside the merits of

defendants' argument, however, the fact remains that the three other plaintiffs have, in

essence, raised the identical AP A claim. Thus, having jurisdiction to hear those claims

4The AP A time bar issue is best understood as a jurisdictional matter. Our Circuit has

held that the general section 2401(a) statute of limitations applies to APA claims unless

another statute provides otherwise, see Harris v. FAA, 353 F.3d 1006, 1009 (D.C. Cir.

2004), and that, "[u]nlike an ordinary statute of limitations,§ 2401(a) is a jurisdictional

condition," Spannaus v. US. Dep't ofJustice, 824 F.2d 52, 55 (D.C. Cir. 1987).

6

effectively provides this Court with the very jurisdiction necessary to evaluate the merits

of these claims.

Similarly, defendants' assertion that the Samoan Federation of America lacks

standing to sue either on its own behalf or on behalf of its members, see Defs.' Mem. at

21-23, is an argument that is of no real consequence. 5 It is well-established that a court

need not consider the standing of the other plaintiffs when at least one plaintiff has

standing. See In re Navy Chaplaincy, 697 F.3d 1171, 1178 (D.C. Cir. 2012); Tozzi v.

US. Dep't of Health & Human Servs., 271 F.3d 301,310 (D.C. Cir. 2001); see also Watt

v. Energy Action Educ. Found., 454 U.S. 151, 160 (1981); Mountain States Legal Found.

v. Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996). The bottom line here is clear:

defendants do not allege that the individual plaintiffs lack standing, nor is there any

reason for this Court to believe that they do. As such, the Court need not address the

standing of the Samoan Federation of America in order to determine whether it has

jurisdiction.

Finally, defendants advance the novel and somewhat exotic jurisdictional

argument that plaintiffs' suit raises a nonjusticiable political question. 6 See Defs.' Mem.

at 17-18. The Government argues that, "at bottom," plaintiffs are arguing for a grant of

5 "A ... motion to dismiss for lack of standing implicates subject matter jurisdiction ...

." Edwards v. Aurora Loan Serv., 791 F. Supp. 2d 144, 150 (D.D.C. 2011).

6 The political question doctrine is a jurisdictional matter. "[T]he concept of

justiciability, which expresses the jurisdictional limitations imposed on federal courts by

the 'case or controversy' requirement of Art. III, embodies ... the ... political question

doctrine[] .... [T]he presence of a political question [thus] suffices to prevent the power

ofthe federal judiciary from being invoked by the complaining party." Schlesinger v.

Reservists Comm. to Stop the War, 418 U.S. 208,215 (1974) (quoted in Hwang Geum

Joo v. Japan, 413 F.3d 45, 47-48 (D.C. Cir. 2005)).

7

statehood to American Samoa, and that such a determination is a political question

committed by the Constitution to Congress. See id. at 18. Plaintiffs respond that their

complaint does not argue for statehood, but instead argues for the application of a

particular constitutional provision to a territory, a claim "eminently fit for judicial

resolution." Pis.' Opp'n at 33.

To the extent they view plaintiffs as petitioning for statehood, however,

defendants misread the complaint. The complaint clearly urges the application of the

Citizenship Clause to American Samoa, but it never "demands" recognition of American

Samoa as a state or even mentions the word "statehood." See generally Compl. The

actual task before the Court-determining whether the Citizenship Clause applies to

American Samoa-is, indeed, a proper judicial inquiry. 7

II. Failure to State a Claim

Having jurisdiction, the Court turns to defendants' motion to dismiss under Rule

12(b )( 6) for failure to state a claim. Plaintiffs' claims all hinge upon one legal assertion:

7 The Supreme Court has decided similar questions throughout its history. See, e.g.,

Boumediene v. Bush, 553 U.S. 723 (2008) (finding Suspension Clause applicable to U.S.

Naval Station at Guantanamo Bay); Balzac v. Porto Rico, 258 U.S. 298 (1922) (Sixth

Amendment jury trial right inapplicable to unincorporated territory of Puerto Rico);

Downes v. Bidwell, 182 U.S. 244 (1901) (Revenue Clauses inapplicable to Puerto Rico).

Most recently, in Boumediene, the Supreme Court expressly rejected the contention that

the Constitution's extraterritorial application presents a political question. 553 U.S. at

754-55. In fact, defendants themselves rely on several cases in which courts exercised

their jurisdiction to determine whether the Citizenship Clause extended to the Philippines

while it was an unincorporated territory of the United States. See Defs.' Mem. at 12-15

(citing, inter alia, Nolos v. Holder, 611 F.3d 279 (5th Cir. 2010); Lacap v. INS, 138 F.3d

518 (3d Cir. 1998); Valmonte v. INS, 136 F .3d 914 (2d Cir. 1998); Rabang v. INS, 3 5

F.3d 1449 (9th Cir. 1995), cert. denied sub nom. Sanidad v. Immigration &

Naturalization Serv., 515 U.S. 1130 (1995); Licudine v. Winter, 603 F. Supp. 2d 129

(D.D.C. 2009)).

8

the Citizenship Clause guarantees the citizenship of people born in American Samoa.

Defendants argue that this assertion must be rejected in light of the Constitution's plain

language, rulings from the Supreme Court and other federal courts, longstanding

historical practice, and pragmatic considerations. See generally Defs.' Mem.; Gov't's

Reply in Supp. of Their Mot. to Dismiss ("Defs.' Reply") [Dkt. # 20]; Amicus Br.

Unfortunately for the plaintiffs, I agree. The Citizenship Clause does not guarantee

birthright citizenship to American Samoans. As such, for the following reasons, I must

dismiss the remainder of plaintiffs' claims.

The Citizenship Clause of the Fourteenth Amendment provides that "[a]ll persons

born or naturalized in the United States and subject to the jurisdiction thereof, are citizens

of the United States and ofthe State wherein they reside." U.S. Const. amend. XIV,

section 1. Both parties seem to agree that American Samoa is "subject to the

jurisdiction" of the United States, and other courts have concluded as much. See Pis.'

Opp'n at 2; Defs.' Mem. at 14 (citing Rabang as noting that the territories are "subject to

the jurisdiction" of the United States). But to be covered by the Citizenship Clause, a

person must be born or naturalized "in the United States and subject to the jurisdiction

thereof." Thus, the key question becomes whether American Samoa qualifies as a part of

the "United States" as that is used within the Citizenship Clause. 8

8 The Court is also guided by the familiar principle that '" [p ]roper respect for a

coordinate branch of the government' requires that we strike down an Act of Congress

only if 'the lack of constitutional authority to pass [the] act in question is clearly

demonstrated.'" Nat'! Fed'n oflndep. Bus. v. Sebelius, 132 S. Ct. 2566,2579 (2012)

(quoting United States v. Harris, 106 U.S. 629, 635 (1883)). Unless it can be clearly

9

The Supreme Court famously addressed the extent to which the Constitution

applies in territories in a series of cases known as the Insular Cases. 9 In these cases, the

Supreme Court contrasted "incorporated" territories-those lands expressly made part of

the United States by an act of Congress-with "unincorporated territories" that had not

yet become part of the United States and were not on a path toward statehood. See, e.g.,

Downes, 182 U.S. at 312; Dorr v. United States, 195 U.S. 138, 143 (1904); see also

United States v. Verdugo-Urquidez, 494 U.S. 259, 268 (1990); Eche v. Holder, 694 F.3d

1026, 1031 (9th Cir. 2012) (citingBoumediene v. Bush, 553 U.S. 723,757-58 (2008)). 10

In an unincorporated territory, the Insular Cases held that only certain "fundamental"

constitutional rights are extended to its inhabitants. Dorr, 195 U.S. 148-49; Balzac v.

Porto Rico, 258 U.S. 298, 312 (1922); see also Verdugo- Urquidez, 494 U.S. at 268.

While none of the Insular Cases directly addressed the Citizenship Clause, they suggested

that citizenship was not a "fundamental" right that applied to unincorporated territories. 11

shown that the Citizenship Clause extends to American Samoa, plaintiffs' legal theory

should be rejected.

9 The Insular Cases include De Lima v. Bidwell, 182 U.S. I (1901); Goetze v. United

States, 182 U.S. 221 (190 1); Dooley v. United States, 182 U.S. 222 (190 1); Armstrong v.

United States, 182 U.S. 243 (1901); Downes v. Bidwell, 182 U.S. 244 (1901); and Huus

v. NY. and Porto Rico Steamship Co., 182 U.S. 392 (1901).

10 Plaintiffs do not contest whether American Samoa is an "incorporated" or

"unincorporated" territory; rather they reject this dichotomy altogether. See Pis.' Opp'n

at 25-33. For the purposes of this characterization, the Court assumes that American

Samoa is an "unincorporated" territory, as no act of incorporation has been identified.

11 Plaintiffs cite two cases to support the conclusion that citizenship is a fundamental

right: Trap v. Dulles, 356 U.S. 86, 103 (1958) (plurality op.) (mentioning the

"fundamental right of citizenship") and Afroyim v. Rusk, 387 U.S. 253, 267-68 (1967)

(citizenship is "no light trifle"). Each of these cases discusses the fundamentality of

citizenship in dicta, and neither case has anything to do with territorial citizenship. Such

precedent is unpersuasive in light of the voluminous federal case law discussed herein

10

For example, in the Insular Case of Downes v. Bidwell, the Court addressed, via

multiple opinions, whether the Revenue Clause of the Constitution applied in the

unincorporated territory of Puerto Rico. In an opinion for the majority, Justice Brown

intimated in dicta that citizenship was not guaranteed to unincorporated territories. See

Downes, 182 U.S. at 282 (suggesting that citizenship and suffrage are not "natural rights

enforced in the Constitution" but rather rights that are "unnecessary to the proper

protection of individuals."). He added that "it is doubtful if Congress would ever assent

to the annexation of territory upon the condition that its inhabitants, however foreign they

may be to our habits, traditions, and modes of life, shall become at once citizens of the

United States." !d. at 279-80. He also contrasted the Citizenship Clause with the

language of the Thirteenth Amendment, which prohibits slavery "within the United

States, or in any place subject to their jurisdiction." !d. at 251 (emphasis added). He

stated:

[T]he 14th Amendment, upon the subject of citizenship, declares only that

"all persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States, and of the state

wherein they reside." Here there is a limitation to persons born or

naturalized in the United States, which is not extended to persons born in

any place "subject to their jurisdiction."

!d. (emphasis added). In a concurrence, Justice White echoed this sentiment, arguing that

the practice of acquiring territories "could not be practically exercised if the result would

be to endow the inhabitants with citizenship of the United States." !d. at 306.

that concludes that citizenship is not guaranteed to people born in unincorporated

territories.

11

Plaintiffs rightly note that Downes did not possess a singular majority opinion and

addressed the right to citizenship only in dicta. Pls.' Opp'n at 25-27. But in the century

since Downes and the Insular Cases were decided, no federal court has recognized

birthright citizenship as a guarantee in unincorporated territories. To the contrary, the

Supreme Court has continued to suggest that citizenship is not guaranteed to people born

in unincorporated territories. For example, in a case addressing the legal status of an

individual born in the Philippines while it was a territory, the Court noted-without

objection or concern-that "persons born in the Philippines during [its territorial period]

were American nationals" and "until 1946, [could not] become United States citizens.

Barber v. Gonzales, 347 U.S. 637, 639 n.l (1954). Again, in Miller v. Albright, 523 U.S.

420, 467 n.2 (1998), Justice Ginsberg noted in her dissent that "the only remaining

noncitizen nationals are residents of American Samoa and Swains Island" and failed to

note anything objectionable about their noncitizen national status. More recently, in

Boumediene v. Bush, the Court reexamined the Insular Cases in holding that the

Constitution's Suspension Clause applies in Guantanamo Bay, Cuba. 553 U.S. 723, 757-

59 (2008). The Court noted that the Insular Cases "devised ... a doctrine that allowed

[the Court] to use its power sparingly and where it would most be needed. This century-

old doctrine informs our analysis in the present matter." /d. at 759.

Plaintiffs argue that Boumediene did not reaffirm-but instead narrowed-the

Insular Cases. Pls.' Opp'n at 28-29. They point to the Court's statement that "[i]t may

well be that over time the ties between the United States and any of its. unincorporated

Territories strengthen in ways that are of constitutional significance." Boumediene, 553

12

U.S. at 758 (citing Torres v. Puerto Rico, 442 U.S. 465, 475--476 (1979) (Brennan, J.,

concurring in judgment) ("Whatever the validity of the [Insular Cases] in the particular

historical context in which they were decided, those cases are clearly not authority for

questioning the application of the Fourth Amendment-or any other provision of the Bill

of Rights-to the Commonwealth of Puerto Rico in the 1970's.")). !d. This vague

statement crafted in a vastly different context, however, does not license this Court to

tum its back on the more direct and more persuasive precedent and the legal framework

that has predominated over the unincorporated territories for more than a century.

Indeed, other federal courts have adhered to the precedents of the Insular Cases in

similar cases involving unincorporated territories. For example, the Second, Third, Fifth,

and Ninth Circuits have held that the term "United States" in the Citizenship Clause did

not include the Philippines during its time as an unincorporated territory. See generally

Nolos v. Holder, 611 F.3d 279 (5th Cir. 2010); Valmonte v. INS, 136 F.3d 914 (2d Cir.

1998); Lacap v. INS, 138 F.3d 518 (3d Cir. 1998); Rabang, 35 F.3d 1449. These courts

relied extensively upon Downes to assist with their interpretation of the Citizenship

Clause. SeeNolos,611 F.3dat282-84; Valmonte, 136F.3dat918-21;Rabang,35F.3d

at 1452-53. Indeed, one of my own distinguished colleagues in an earlier decision cited

these precedents to reaffirm that the Citizenship Clause did not include the Philippines

during its territorial period. See Licudine v. Winter, 603 F. Supp. 2d 129, 132-34 (D.D.C.

2009) (Robinson, J.). 12

12The Philippines cases also reject the applicability of United States v. Wong Kim Ark,

169 U.S. 649 (1898), in which the Supreme Court addressed whether a child born to alien

13

Plaintiffs attempt to distinguish these cases by noting that the Philippines, unlike

American Samoa, was a territory only "temporarily." Pls.' Opp'n at 31. But none of

these cases based their decision on the fact that the Philippines was a temporary territory.

Even if this distinction made a difference, plaintiffs fail to rebut the Ninth Circuit's recent

holding that the Northern Mariana Islands-a current and longstanding territory-is not

included within the bounds ofthe Citizenship Clause. Eche v. Holder, 694 F.3d 1026,

1027-28 (9th Cir. 2012). 13 In short, federal courts have held over and over again that

unincorporated territories are not included within the Citizenship Clause, and this Court

sees no reason to do otherwise! 14

In both their brief and in oral argument, plaintiffs placed great weight on our

Circuit's decision in King v. Morton, 520 F.2d 1140 (D.C. Cir. 1975). In that case, the

Court addressed whether an American citizen was guaranteed the right to trial by jury in

parents in the United States was a citizen. See No los, 611 F .3d at 284; Valmonte, 136

F.3d at 920; Rabang, 35 F.3d at 1454; see also Pls.' Opp'n at 13, 24 (citing Wong Kim

Ark). Because the child was born in San Francisco, the Court did not need to address the

territorial scope of the Citizenship Clause in that case.

13 Plaintiffs address Eche in a footnote, stating simply that it "relies on the same flawed

arguments as the other cases cited by Defendants." Pls.' Opp'n at 31 n.25.

14 Unpersuasively, plaintiffs attempt to use legislative history to support the territorial

reach of the Citizenship Clause. See Pls.' Opp 'n at 13-18. Plaintiffs cite, inter alia, a

senator's comment that the Citizenship Clause declares that "every person born within

the limits of the United States [is] a citizen." !d. at 13. This comment fails to shed any

light on whether the "United States" includes its territories. Plaintiffs also rely upon

contemporaneous language from another senator, President Jackson, and other legislation

that include people in the "Territories" within the bounds of the Citizenship Clause. !d.

at 13-15. However, it is unclear from this language whether the "Territories" included

only incorporated territories on the path to statehood or also unincorporated territories-

particularly unincorporated territories such as American Samoa that had not yet come

into existence. Even if this legislative history were clear, these stray comments are not

sufficient to upend years of contrary legal precedent.

14

American Samoa. !d. at 1146. Rejecting the reliance on "key words such as

'fundamental' or 'unincorporated territory"' in the Insular Cases and other cases, the

court instead employed the test from Reidv. Covert, 354 U.S. 1, 75 (1957) (Harlan, J.,

concurring): asking whether the right to trial by jury would be "'impractical and

anomalous."' King, 520 F.2d at 1147 (quoting Reid, 354 U.S. at 75). As defendants

rightly note, this case addressed the rights of an existing citizen in American Samoa-not

the right of persons born in American Samoa to citizenship itself. Defs.' Reply at 9. This

distinction was critical in Reid, the case upon which King relied. As the Supreme Court

noted in Boumediene, "That the petitioners in Reid were American citizens was a key

factor in the case and was central to the plurality's conclusion that the Fifth and Sixth

Amendments apply to American civilians tried outside the United States." 553 U.S. at

760. Further, neither King nor Reid discussed the right to citizenship-a right that other

federal courts have addressed directly and, in doing so, have refused to extend to

unincorporated territories.

Morever, our Circuit appeared to reaffirm its commitment to Insular Cases-in

terms of extending only "fundamental" rights to unincorporated territories-in a case

following King that involved a due process claim in American Samoa. Corp. of

Presiding Bishop of Church ofJesus Christ of the Latter-Day Saints v. Hodel, 830 F.2d

374, 385 (D.C. Cir. 1987). In that case, the Circuit stated that "the Supreme Court long

ago determined that in the 'unincorporated' territories, such as American Samoa, the

guarantees of the Constitution apply only insofar as its 'fundamental limitations in favor

of personal rights' express 'principles which are the basis of all free government which

15

cannot be with impunity transcended."' !d. (citing Dorr, 195 U.S. at 146-47). The court

held that access to a court independent of the executive branch is not a "fundamental"

right extending to American Samoa. !d. at 386. In light of this later case and King's

distinct context, this Court does not find King to be an appropriate guidepost for this

case. 15

Finally, this Court is mindful of the years of past practice in which territorial

citizenship has been treated as a statutory, and not a constitutional, right. In the

unincorporated territories of Puerto Rico, Guam, the U.S. Virgin Islands, and the

Northern Mariana Islands, birthright citizenship was conferred upon their inhabitants by

various statutes many years after the United States acquired them. See Amicus Br. at 10-

11. If the Citizenship Clause guaranteed birthright citizenship in unincorporated

territories, these statutes would have been unnecessary. While longstanding practice is

not sufficient to demonstrate constitutionality, such a practice requires special scrutiny

before being set aside. See, e.g., Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922)

(Holmes, J.) ("If a thing has been practiced for two hundred years by common consent, it

will need a strong case for the Fourteenth Amendment to affect it[.]"); Walz v. Tax

Comm 'n, 397 U.S. 664, 678 (1970) ("It is obviously correct that no one acquires a vested

15 In a brief, per curiam opinion, our Circuit declined to address the question of whether

the Citizenship Clause applied to the Philippines in Mendoza v. Soc. Security Comm 'r, 92

F. App'x 3, 3 (2004). In claiming that Mendoza suggests that birthright citizenship in the

territories is "an open question in the Circuit," plaintiffs attempt to make a mountain out

of a molehill. The Mendoza court sidestepped the issue not because it was necessarily

"an open question"-but rather because the issue was simply unnecessary to the

disposition of the case. See id. ("We need not decide any of the constitutional questions

presented by Amicus .... ").

16

or protected right in violation ofthe Constitution by long use .... Yet an unbroken

practice ... is not something to be lightly cast aside."). And while Congress cannot take

away the citizenship of individuals covered by the Citizenship Clause, it can bestow

citizenship upon those not within the Constitution's breadth. See U.S. Const. art. IV, § 3,

cl. 2 ("Congress shall have Power to dispose of and make all needful Rules and

Regulations respecting the Territory belonging to the United States."); id. at art. I, § 8, cl.

4 (Congress may "establish an uniform Rule ofNaturalization .... "). To date, Congress

has not seen fit to bestow birthright citizenship upon American Samoa, and in accordance

with the law, this Court must and will respect that choice. 16

CONCLUSION

For the foregoing reasons, the Court GRANTS defendants' Motion to Dismiss.

An order consistent with this decision accompanies this Memorandum Opinion.

16 Because the Court finds statutory interpretation and legal precedent sufficient to grant

defendants' motion to dismiss, it need not address the Amicus's arguments about the

potentially deleterious effects of mandating birthright citizenship on American Samoa's

traditional culture. See Amicus Br. at 12-18.

17