Kenneth Fox v. Hillary Clinton

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 5, 2012 Decided June 12, 2012

No. 11-5010

KENNETH R. FOX,

APPELLANT

v.

HILLARY RODHAM CLINTON, SECRETARY OF STATE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-00553)

Jack L. B. Gohn argued the cause and filed the briefs for

appellant.

Bradley B. Banias, Trial Attorney, U.S. Department of

Justice, argued the cause for appellees. With him on the brief

was Tony West, Assistant Attorney General. R. Craig Lawrence,

Assistant U.S. Attorney, entered an appearance.

Before: GARLAND, Circuit Judge, and EDWARDS and

WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

Concurring opinion filed by Senior Circuit Judge

WILLIAMS.

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EDWARDS, Senior Circuit Judge: Dr. Kenneth Fox

(“Appellant”) – a Jewish American by birth who has lived in

Israel as an Israeli national for over a decade – seeks a

Certificate of Loss of Nationality (“a CLN”) from the

Department of State (“the Department” or “the agency”). He

claims to be entitled to a CLN under two provisions of the

Immigration and Nationality Act of 1952 (“the INA” or “the

Act”). See Pub. L. No. 414, 66 Stat. 163 (1952) (codified as

amended at 8 U.S.C. § 1101 et seq. (2006)). First, he claims that

under Section 349(a)(1) (“Section 1”) of the INA, he

intentionally surrendered his U.S. nationality by “obtaining

naturalization in a foreign state,” Israel, “upon his own

application . . ., after having attained the age of eighteen years.”

8 U.S.C. § 1481(a)(1). Second, he claims that under Section

349(a)(2) (“Section 2”) of the INA, he intentionally relinquished

his U.S. nationality by “taking an oath or making an affirmation

or other formal declaration of allegiance to a foreign state,”

again, Israel, “after having attained the age of eighteen years.”

Id. § 1481(a)(2).

By a representative, Appellant first submitted a request for

a CLN to the State Department in 2009. The Department denied

the request, however, claiming that Appellant’s acts did not

satisfy the INA’s requirements. With respect to Section 1 of the

INA, the Department noted that, under Israeli law, Appellant

had obtained Israeli nationality “by return,” rather than “by

naturalisation.” Nationality Law, 5712–1952, 6 LSI 50, § 1

(1951–1952); see also id. §§ 2, 5. This was determinative,

according to the agency, because, in the Department’s view, the

conferral of Israeli nationality “by naturalisation” occurs

“upon . . . application,” as the INA requires, whereas the

conferral of nationality “by return” occurs merely by automatic

operation of law – i.e., not upon application. With respect to

Section 2 of the INA, the Department found that there was

insufficient evidence that Appellant had sworn a meaningful

oath of allegiance to Israel.

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Appellant appealed the agency’s denial through informal

administrative procedures to no avail. He then filed this suit

challenging the Department’s final decision, contained in a letter

issued on March 8, 2010. See Letter from Edward A.

Betancourt, Dir., Office of Policy Review and Interagency

Liaison, Bureau of Consular Affairs, to Jack. L. B. Gohn, Esq.

(March 8, 2010) (“Betancourt Letter”), reprinted in App. 139.

Appellant’s complaint invoked the District Court’s jurisdiction

under 28 U.S.C. § 1331. The District Court assumed that the

complaint stated a cause of action under the Administrative

Procedure Act (“the APA”), 5 U.S.C. § 501 et seq. (2006). See

Fox v. Clinton, 751 F. Supp. 2d 122, 127 & n.3 (D.D.C. 2010)

(citing 5 U.S.C. §§ 702, 704, 706). The Department filed a

motion to dismiss, which the District Court granted. See id. at

131. Appellant then appealed the District Court’s decision to

this court.

We affirm the District Court’s judgment only insofar as it

upholds the Department’s decision that Appellant is not eligible

for a CLN under Section 2 of the INA. We reverse and remand,

however, the District Court’s judgment dismissing Appellant’s

challenge to the Department decision denying his request for a

CLN under Section 1. The agency’s statutory interpretation of

Section 1 of the INA, as rendered in the Betancourt Letter, is not

entitled to Chevron deference. And, because the Department

failed to provide any coherent explanation for its decision

regarding the applicability of Section 1, the agency’s action was

arbitrary and capricious for want of reasoned decisionmaking.

We reverse the judgment of the District Court on these points

and remand with instructions to remand the case to the

Department for reconsideration of Appellant’s request for a

CLN pursuant to Section 1 of the INA.

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I. Background

A. The Statutory Framework

1. The INA

The INA states that “[a] person who is a national of the

United States whether by birth or naturalization, shall lose his

nationality by voluntarily performing” any designated

expatriating act “with the intention of relinquishing United

States nationality.” 8 U.S.C. § 1481(a). Appellant claims to

have performed two such expatriating acts:

(1) obtaining naturalization in a foreign state upon his own

application or upon an application filed by a duly

authorized agent, after having attained the age of eighteen

years; or

(2) taking an oath or making an affirmation or other formal

declaration of allegiance to a foreign state or a political

subdivision thereof, after having attained the age of

eighteen years . . . .

Id.

The INA defines “naturalization” as

the conferring of nationality of a state upon a person after

birth, by any means whatsoever.

Id. § 1101(a)(23) (emphasis added). This definition obviously

controls the meaning of “naturalization” under Section 1 of the

INA.

Congress adopted the “intention of relinquishing United

States nationality” requirement in 1986. See Immigration and

Nationality Act Amendments of 1986, Pub. L. No. 99-653, § 18,

100 Stat. 3655, 3658. Even prior to the 1986 amendments to the

INA, however, the law was clear that an American citizen could

not lose his or her nationality absent a showing that he or she

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committed an “expatriating act” with a specific “intent to

terminate United States citizenship.” Vance v. Terrazas, 444

U.S. 252, 263 (1980); see also Afroyim v. Rusk, 387 U.S. 253,

267–68 (1967).

Finally, the Act provides that “[w]henever the loss of

United States nationality is put in issue in any action or

proceeding . . . the burden shall be upon the person or party

claiming that such loss occurred, to establish such claim by a

preponderance of the evidence.” 8 U.S.C. § 1481(b). The Act

also establishes a rebuttable presumption that a person who

commits an expatriating act does so voluntarily. See id.

2. Israel’s Nationality Law and Law of Return

Israel’s Nationality Law sets forth the procedures that

immigrants must follow to obtain Israeli nationality. That law,

as amended, states:

Israel nationality is acquired –

by return (section 2),

by residence in Israel (section 3),

by birth (section 4)[,]

by birth and residence in Israel (section 4A)[,]

by naturalisation (sections 5 to 8) or

by grant (section 9).

There shall be no Israel nationality save under this Law.

Nationality Law, 5712–1952, 6 LSI 50, § 1, as amended by

Nationality (Amendment No. 2) Law, 5728–1968, § 1; see

Addendum. The dispute in this case is focused on nationality

acquired “by return” or “by naturalisation” under Israel’s

Nationality Law.

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Nationality “by Return”

Section 2 of Israel’s Nationality Law describes the

requirements for obtaining Israeli nationality “by return.” The

relevant portions of Section 2, as amended, read as follows:

(a) Every ‘oleh under the Law of Return shall become an

Israel national.

(b) Israel nationality by return is acquired–

...

(2) by a person having come to Israel as an ‘oleh after

the establishment of the State – with effect from the

day of his ‘aliyah;

...

(4) by a person who has received an ‘oleh’s certificate

under section 3 of the Law of Return – with effect from

the day of the issue of the certificate.

(c) This section does not apply –

...

(2) to a person of full age who immediately before the

day of his aliyah or immediately before the day of the

issue of his oleh’s certificate was a foreign national and

who, on or before that day or within three months

thereafter and while still a foreign national declares

that he does not wish to become an Israel national . . . .

Nationality Law, 5712–1952, 6 LSI 50, § 2 (footnotes omitted)

(citations omitted), as amended by Nationality (Amendment No.

2) Law, 5728–1968, § 2; see Addendum. “‘[O]leh and ‘aliyah

mean respectively a Jew immigrating, and the immigration of a

Jew, into the Land of Israel.” Nationality Law, 5712–1952,

6 LSI 50, Translator’s Note.

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The Law of Return, which, as noted above, is expressly

incorporated by the Nationality Law, reads, in relevant part, as

follows:

1. Every Jew has the right to come to this country as an

oleh.

2. (a) Aliyah shall be by oleh’s visa.

(b) An oleh’s visa shall be granted to every Jew who

has expressed his desire to settle in Israel, unless the

Minister of the Interior is satisfied that the applicant

(1) is engaged in an activity directed against the

Jewish people; or

(2) is likely to endanger public health or the

security of the State; or

(3) is a person with a criminal past, likely to

endanger public welfare.

3. (a) A Jew who has come to Israel and subsequent to his

arrival has expressed his desire to settle in Israel may,

while still in Israel, receive an oleh’s certificate.

(b) The restrictions specified in section 2(b) shall apply

also to the grant of an oleh’s certificate, but a person

shall not be regarded as endangering public health on

account of an illness contracted after his arrival in

Israel.

Law of Return, 5710–1950, 4 LSI 114, §§ 1–3, (1949–1950)

(footnote omitted), as amended by Law of Return (Amendment

5714–1954); see Addendum.

It is plain from the foregoing provisions that nationality “by

return” in Israel turns on the requirements of Israel’s Law of

Return. The Nationality Law and the Law of Return are

expressly integrated to make this point obvious. Thus, for

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example, Section 2(b)(2) of the Nationality Law corresponds to

section 2 of the Law of Return, the latter of which states that a

Jew may enter Israel as an oleh, on an oleh’s visa. See Law of

Return, 5710–1950, 4 LSI 114, § 2(a). And section 2(b)(4) of

the Nationality Law corresponds to section 3 of the Law of

Return, the latter of which states that a Jew who otherwise enters

Israel may apply for an oleh’s certificate. See id. § 3(a).

It is also noteworthy that, under the Law of Return, Israel’s

Minister of the Interior may deny applications for either an

oleh’s visa or an oleh’s certificate upon finding the applicant

“(1) is engaged in an activity directed against the Jewish people;

or (2) is likely to endanger public health or the security of the

State; or (3) is a person with a criminal past, likely to endanger

public welfare.” Id. §§ 2(b), 3(b), as amended by Law of Return

(Amendment 5714–1954); see Addendum. In other words,

conferral of nationality “by return” is secured pursuant to

application, not by automatic operation of law.

Nationality “by Naturalisation”

Section 5 of Israel’s Nationality Law addresses the

requirements for an individual to obtain nationality “by

naturalisation.” The law states:

(a) A person of full age, not being an Israel national, may

obtain Israel nationality by naturalisation if –

(1) he is in Israel; and

(2) he has been in Israel for three years out of five

years preceding the day of the submission of his

application; and

(3) he is entitled to reside in Israel permanently; and

(4) he has settled, or intends to settle, in Israel; and

(5) he has some knowledge of the Hebrew language;

and

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(6) he has renounced his prior nationality or has proved

that he will cease to be a foreign national upon

becoming an Israel national.

(b) Where a person has applied for naturalisation, and he

meets the requirements of subsection (a), the Minister of the

Interior, if he thinks fit to do so, shall grant him Israel

nationality by the issue of a certificate of naturalisation.

(c) Prior to the grant of nationality, the applicant shall make

the following declaration:

“I declare that I will be a loyal national of the State of

Israel.”

(d) Nationality is acquired on the day of the declaration.

Nationality Law, 5712–1952, 6 LSI 51, § 5.

B. Facts and Procedural History

Appellant is a U.S. citizen by birth. He traveled to Israel

from Cyprus on a visitor’s, non-oleh’s visa in October 2001.

Appellant’s Br. at 3–4, 11; Gov’t’s Br. at 1. Shortly thereafter,

he submitted an “Application for Permit of Permanent

Residence in Israel.” See Application for Permit of Permanent

Residence in Israel, App. 113. On that form, Appellant checked

off a box to indicate his intention to seek a “Certificate of

‘oleh’” under the Law of Return. See id. The record is

somewhat unclear on the sequence of events that followed.

Appellant claims that he never actually received an oleh’s

certificate from Israel. See Appellant’s Br. at 11–12;

Appellant’s Reply Br. at 13–14. But it is undisputed that

Appellant did obtain Israeli nationality on January 30, 2002,

when Israel issued him a citizenship card. See App. 114

(photocopy of Appellant’s citizenship card submitted to State

Department). Moreover, in 2010, at Appellant’s request, Israel

also issued a certificate attesting to his Israeli citizenship. See

Certificate Attesting Israeli Citizenship (Feb. 3, 2010)

10

(“Citizenship Certificate”), App. 138. That certificate indicates

that, so far as Israel is concerned, Appellant obtained Israeli

nationality in 2002, “[a]ccording to paragraph 2(B)(4)” of the

Nationality Law, id. – the provision governing the conferral of

nationality “by return” via an oleh’s certificate.

On July 8, 2009, an attorney, Erin Green, contacted the

Department requesting a CLN on Appellant’s behalf under

Section 1 and/or 2 of the INA. See Letter from Erin Green, Esq.

to Dir., Office of Policy Review and Interagency Liaison (July

8, 2009), App. 28. In the letter, Green explained that Appellant

had obtained nationality from Israel in 2002; that he “ha[d] not

lived in the United States since 1996”; that he “ha[d] not been

in the United States since 1997”; that he “ha[d] not travelled

[sic] on a United States passport since 1999”; that he “[was] not

currently in possession of a United States passport”; that he

“ha[d] not voted in the United States since 1992”; that he “ha[d]

regularly voted [in] Israel since he became a citizen”; and that

he “ha[d] not had any business ties to the United States since

1996.” Id., App. 29–30. Attached to the letter was a notarized

affidavit from Appellant indicating that by seeking Israeli

nationality in 2002, he had intended to renounce his U.S.

nationality. See Fox Aff. of Renunciation of U.S. Citizenship,

July 7, 2009, App. 31. Kim Richter replied on behalf of the

State Department and, over the course of a brief correspondence,

denied Appellant’s request. See, e.g., E-mail from Kim B.

Richter to Erin Green (Aug. 6, 2009), App. 39; E-mail from Kim

B. Richter to Erin Green (Aug. 5, 2009), App. 34; E-mail from

Kim B. Richter to info@ktalegal.com (July 21, 2009), App. 32.

In September 2009, Jack Gohn, Appellant’s counsel before

this court, contacted Edward Betancourt, the Director of the

Office of Policy Review and Interagency Liaison at the

Department. See Letter from Jack L. B. Gohn to Edward A.

Betancourt (Sept. 8, 2009), App. 40. Gohn conveyed

Appellant’s interest in appealing the Department’s decision and

11

requested information regarding the procedures for filing such

an appeal. See id., App. 40. The Department had previously

eliminated the Board of Appellate Review – the subagency body

that had been responsible for reviewing CLN decisions – in

favor of “alternative, less cumbersome review of loss of

nationality determinations by the Bureau of Consular Affairs.”

Department of State, Board of Appellate Review; Review of

Loss of Nationality, Final Rule, 73 Fed. Reg. 62,196, 62,196

(Oct. 20, 2008). And Betancourt replied that, under the new

system, his office possessed final discretion to review the

agency’s denial of Appellant’s CLN request. See Letter from

Edward A. Betancourt to Jack L. B. Gohn (Nov. 2, 2009), App.

58.

Gohn filed an informal appeal of the agency’s denial on

November 10, 2009. See Letter from Jack L. B. Gohn to

Edward A. Betancourt (Nov. 10, 2009), App. 65–69. With

respect to Section 1, Gohn stated that Appellant had obtained

nationality by submitting an application for citizenship “under

Section 3 of the Law of Return.” Id., App. 65. Gohn argued

that Appellant was accordingly entitled to a CLN, because “the

elements for loss of citizenship under INA Section 1 are all

present: (a) intent; (b) naturalization; (c) application; and (d)

age.” Id., App. 66. And with respect to Section 2 of the INA,

Gohn explained that Appellant had recited the precise oath of

allegiance that Israel requires from persons seeking Israeli

nationality “by naturalisation” under the Nationality Law. See

id., App. 68. Gohn admitted that Appellant had not obtained

nationality under that provision. But Gohn explained that “as

the only form of declaration contemplated by Israeli

naturalization law,” Appellant’s oath was nonetheless “the

appropriate and approved form of oath or declaration of

allegiance to Israel, and hence an appropriate form of

declaration within the meaning of INA Section 2.” Id., App. 68.

Betancourt replied on December 4, 2009, requesting

12

information relevant to Appellant’s claim under Section 1 of the

INA. Specifically, Betancourt asked for “[a] certified copy of

the application for Israeli citizenship that Dr. Fox submitted on

October 25, 2001, . . . [a] certified copy of Mr. Fox’s Israeli

citizenship certificate[,] . . . [and c]ertified copies of all the

pages of [Fox’s U.S.] passport.” Letter from Edward A.

Betancourt to Jack L. B. Gohn (Dec. 4, 2009), App. 109. In

reply, Gohn submitted the following materials: the first page of

the requested application, a copy of Appellant’s Israeli

nationality card (Gohn subsequently also submitted a copy of

Appellant’s Citizenship Certificate), a copy of Appellant’s

Israeli passport, and a copy of Appellant’s U.S. passport. See

Letter from Jack L. B. Gohn to Edward A. Betancourt (Dec. 15,

2009), App. 110–27. Betancourt then requested that Gohn

submit a “certified copy of the signed oath of allegiance to the

state of Israel that Mr. Fox is alleged to have taken.” Letter

from Edward A. Betancourt to Jack L. B. Gohn (Jan. 21, 2010),

App. 128. Gohn replied in relevant part that Betancourt was

requesting a document “that does not exist, and is not required.

The taking of the oath was an oral act, not a written one.” Letter

from Jack L. B. Gohn to Edward A. Betancourt (Feb. 22, 2010),

App. 130.

On March 8, 2010, Betancourt issued what both parties

agree is the agency’s final decision in this case. The Betancourt

Letter states:

The Department of State cannot issue Mr. Fox a [CLN]

on the basis of Section 349(a)(1) of the [INA] due simply

to the fact that he has heretofore not demonstrated that he

has naturalized as a citizen of a foreign state “upon his own

application . . . .” The evidence presented to date only

establishes that Mr. Fox applied for permanent residence in

Israel. The statute is unambiguous in requiring the U.S.

citizen to apply for naturalization in order to fall within the

purview of this section of the law.

13

While you are correct in asserting that Section

349(a)(2) of the INA does not require the oath of allegiance

to be in writing, we do require evidence that is both

objective and independent that a meaningful oath of

allegiance has been taken. The oath that you allege that Mr.

Fox has orally taken is administered to individuals who

naturalize as Israeli citizens pursuant to paragraph five of

the Israeli Citizenship Law of 1952. The Israeli citizenship

certificate issued to your client clearly indicates that he

acquired citizenship in accordance with paragraph 2.

Citizenship acquired in accordance with this section of the

law does not appear to require the taking of an oath of

allegiance.

Betancourt Letter, App. 139 (third alteration in original).

Appellant filed suit in the District Court, effectively seeking

“declaratory and mandamus relief requiring the Department of

State to recognize his expatriating acts and thereby issue him a

Certificate of Loss of Nationality.” Fox, 751 F. Supp. 2d at 127.

The District Court exercised subject matter jurisdiction over

Appellant’s complaint under 28 U.S.C. § 1331, and assumed that

the complaint stated a cause of action under the APA, see Fox,

751 F. Supp. 2d at 127 & n.3 (citing 5 U.S.C. §§ 702, 704,

706(2)(A)). After reviewing the parties’ submissions, the

District Court found that the Department’s “decisions were not

arbitrary, capricious, an abuse of discretion, or otherwise

unlawful,” held that Appellant’s “complaint fails to state a claim

upon which relief can be granted,” and granted the Department’s

motion to dismiss. Id. at 131. Appellant filed a timely appeal

seeking to overturn the judgment of the District Court.

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II. Analysis

A. Standard of Review

“In a case like the instant one, in which the District Court

reviewed an agency action under the APA, we review the

administrative action directly, according no particular deference

to the judgment of the District Court.” Holland v. Nat’l Mining

Ass’n, 309 F.3d 808, 814 (D.C. Cir. 2002) (citations omitted).

In other words, we “do not defer to a district court’s review of

an agency adjudication any more than the Supreme Court defers

to a court of appeals’ review of such a decision.” Novicki v.

Cook, 946 F.2d 938, 941 (D.C. Cir. 1991) (citation omitted).

Two distinct but potentially overlapping standards of APA

review govern the instant dispute. First, the APA requires that

agency actions not be “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A). The Supreme Court amplified the standard for

arbitrary and capricious review in Motor Vehicle Manufacturers

Ass’n of the U.S., Inc. v. State Farm Mutual Automobile

Insurance Co., 463 U.S. 29 (1983). The Court explained:

Normally, an agency rule would be arbitrary and capricious

if the agency has relied on factors which Congress has not

intended it to consider, entirely failed to consider an

important aspect of the problem, offered an explanation for

its decision that runs counter to the evidence before the

agency, or is so implausible that it could not be ascribed to

a difference in view or the product of agency expertise.

Id. at 43.

To survive arbitrary and capricious review, an agency

action must be the product of reasoned decisionmaking. See,

e.g., Coburn v. McHugh, --- F.3d ---, No. 10-5350, 2012 WL

1889324, at *5, 10–11 (D.C. Cir. May 25, 2012); Siegel v. SEC,

592 F.3d 147, 158–64 (D.C. Cir. 2010); Tripoli Rocketry Ass’n,

15

Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives,

437 F.3d 75, 77 (D.C. Cir. 2006). Thus, even though arbitrary

and capricious review is fundamentally deferential – especially

with respect to “matters relating to [an agency’s] areas of

technical expertise,” Tripoli, 437 F.3d at 77 – “no deference” is

owed to an agency action that is based on an agency’s

“purported expertise” where the agency’s explanation for its

action “lacks any coherence,” id. As we explained in Tripoli,

[t]his court routinely defers to administrative agencies on

matters relating to their areas of technical expertise. We do

not, however, simply accept whatever conclusion an agency

proffers merely because the conclusion reflects the agency’s

judgment. In order to survive judicial review in a case

arising under § 7006(2)(A) [sic], an agency action must be

supported by “reasoned decisionmaking.” Allentown Mack

Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998)

(quoting Motor Vehicle Mfrs. Ass’n of the United States,

Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52

(1983)). “Not only must an agency’s decreed result be

within the scope of its lawful authority, but the process by

which it reaches that result must be logical and rational.

Courts enforce this principle with regularity when they set

aside agency regulations which, though well within the

agencies’ scope of authority, are not supported by the

reasons that the agencies adduce.” Id.

437 F.3d at 77 (parallel citations omitted).

The requirement of reasoned decisionmaking indisputably

applies in situations involving judicial review of agency

adjudicatory actions. See, e.g., Allentown Mack Sales & Serv.,

Inc., 522 U.S. at 375 (noting that “[r]easoned

decisionmaking . . . promotes sound results, and unreasoned

decisionmaking the opposite”). We will not uphold an agency

adjudication where the agency’s “judgment . . . was neither

adequately explained in its decision nor supported by agency

16

precedent.” Siegel, 592 F.3d at 164; see also Coburn, 2012 WL

1889324, at *2 (holding that because the agency decisions were

“largely incomprehensible,” they were “unworthy of any

deference”); Morall v. Drug Enforcement Admin., 412 F.3d 165,

167 (D.C. Cir. 2005) (vacating an agency decision due to “a

lapse of reasonable and fair decisionmaking”). Thus, our review

of the Betancourt Letter – the agency’s final judgment in its

informal adjudication of Appellant’s claims – requires us to

assess whether the Department’s rejection of Appellant’s request

for a CLN was based on reasoned decisionmaking.

Second, Appellant’s claims also require us to consider

whether we are obliged to defer to the Department’s

interpretations of the INA, as expressed in the Betancourt Letter.

The parties disagree sharply over what level of deference is due

to the agency’s interpretations. “Although balancing the

necessary respect for an agency’s knowledge, expertise, and

constitutional office with the courts’ role as interpreter of laws

can be a delicate matter, familiar principles guide us.” Gonzales

v. Oregon, 546 U.S. 243, 255 (2006).

As a general matter, an agency’s interpretation of the statute

which that agency administers is entitled to Chevron deference.

See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837 (1984). Under the Chevron framework, a court

reviewing such an interpretation follows two familiar steps:

Pursuant to Chevron Step One, if the intent of Congress is

clear, the reviewing court must give effect to that

unambiguously expressed intent. If Congress has not

directly addressed the precise question at issue, the

reviewing court proceeds to Chevron Step Two. Under

Step Two, “[i]f Congress has explicitly left a gap for the

agency to fill, there is an express delegation of authority to

the agency to elucidate a specific provision of the statute by

regulation. Such legislative regulations are given

controlling weight unless they are . . . manifestly contrary

17

to the statute.” Chevron, 467 U.S. at 843–44.

HARRY T. EDWARDS & LINDA A. ELLIOTT, FEDERAL

STANDARDS OF REVIEW – REVIEW OF DISTRICT COURT

DECISIONS AND AGENCY ACTIONS 141 (2007) (alterations in

original).

We owe no deference to the Department’s interpretation of

its own regulations covering applications for CLNs, because

there are no agency regulations at issue in this case. See Martin

v. Occupational Safety & Health Review Comm’n, 499 U.S. 144,

150–51 (1991) (holding that when “the meaning of [regulatory]

language is not free from doubt, the reviewing court should give

effect to the agency’s interpretation so long as it is reasonable,

that is, so long as the interpretation sensibly conforms to the

purpose and wording of the regulations” (alteration in original)

(citations omitted) (internal quotation marks omitted)). This

case involves nothing more than the agency’s interpretation and

application of the INA in an informal adjudication.

It is clear that “not all statutory interpretations by agencies

qualify for [Chevron] deference.” Pub. Citizen, Inc. v. U.S.

Dep’t of Health & Human Servs., 332 F.3d 654, 659 (D.C. Cir.

2003) (citations omitted). The Supreme Court has clarified that

“[d]eference in accordance with Chevron . . . is warranted only

‘when it appears that Congress delegated authority to the agency

generally to make rules carrying the force of law, and that the

agency interpretation claiming deference was promulgated in the

exercise of that authority.’” Gonzales, 546 U.S. at 255–56

(quoting United States v. Mead Corp., 533 U.S. 218, 226–27

(2001)). However, to hold that an agency decision “do[es] not

fall within Chevron is not . . . to place [it] outside the pale of any

deference whatever.” Mead, 533 U.S. at 234. Instead, an

agency action that is not entitled to Chevron deference “is

‘entitled to respect’ only to the extent it has the ‘power to

persuade.’” Gonzales, 546 U.S. at 256 (quoting Skidmore v.

Swift & Co., 323 U.S. 134, 140 (1944)); see also Mead, 533 U.S.

18

at 234–35; Pub. Citizen, Inc., 332 F.3d at 661–62.

With these principles in mind, we turn to the Department’s

decision denying Appellant’s request for a CLN.

B. Section 1 of the INA

Appellant claims that he committed an expatriating act

under Section 1 of the INA by “obtaining naturalization in a

foreign state upon his own application . . ., after having attained

the age of eighteen years.” 8 U.S.C. § 1481(a)(1). The

Department rejected Appellant’s claim based on its

interpretation of Section 1 of the INA. The Department found

that Appellant had not “demonstrated that he [had] naturalized

as a citizen of a foreign state ‘upon his own application.’”

Betancourt Letter (emphasis added), App. 139. In the

Department’s view, this was fatal to Appellant’s request for a

CLN, because the INA “is unambiguous in requiring the U.S.

citizen to apply for naturalization in order to fall within the

purview of [Section 1] of the law.” Id. (emphasis added). On

the record before us, the Department’s position is difficult to

fathom.

The Bottom Line

Our judgment regarding the Department’s rejection of

Appellant’s Section 1 claim is straightforward. First, the

agency’s statutory interpretation of Section 1 of the INA, as

rendered in the Betancourt Letter, is not entitled to Chevron

deference. Second, the agency’s denial of Appellant’s request

for a CLN is not based on reasoned decisionmaking. And,

finally, even if the agency proceeding and the Betancourt Letter

purported to render a judgment carrying the “force of law,”

Mead, 533 U.S. at 227, warranting Chevron deference, the

Department’s action would still fail for want of reasoned

decisionmaking, see Pub. Citizen, Inc., 332 F.3d at 661 (holding

that “even if we were prepared to accord Chevron deference to

the [agency’s interpretation of the statute expressed in its

19

manual], that document contains no interpretation of [the

statute] to which we might defer”). We will now explain.

The Department’s Betancourt Letter Is Not Entitled

to Chevron Deference

In Christensen v. Harris County, 529 U.S. 576 (2000), the

Supreme Court warned that agency “[i]nterpretations such as

those in opinion letters – like interpretations contained in policy

statements, agency manuals, and enforcement guidelines, all of

which lack the force of law – do not warrant Chevron-style

deference,” id. at 587 (citations omitted). The Supreme Court

later clarified, however, that “the fact that [an] Agency . . .

[reaches] its interpretation through means less formal than

‘notice and comment’ rulemaking, see 5 U.S.C. § 553, does not

automatically deprive that interpretation of the judicial

deference otherwise its due.” Barnhart v. Walton, 535 U.S. 212,

221 (2002) (citations omitted). Rather, “the interstitial nature of

the legal question, the related expertise of the Agency, the

importance of the question to administration of the statute, the

complexity of that administration, and the careful consideration

the Agency has given the question over a long period of time

[may] indicate that Chevron provides the appropriate legal lens

through which to view the legality of [a disputed] Agency

interpretation” of its authorizing statute. Id. at 222 (citations

omitted).

Indeed, this court’s decisions in Menkes v. U.S. Department

of Homeland Security, 637 F.3d 319 (D.C. Cir. 2011), and

Mylan Laboratories, Inc. v. Thompson, 389 F.3d 1272 (D.C. Cir.

2004), underscore the point that agency interpretations reached

in situations other than notice-and-comment rulemaking and

formal adjudications under the APA may nonetheless qualify for

Chevron deference. But Barnhart, Menkes, and Mylan are

easily distinguishable from the instant case.

In Barnhart, the Court deferred to an agency’s published

20

interpretations of an ambiguous, interstitial statute and the

agency’s own regulations – which regulations had been

promulgated pursuant to an express delegation of rulemaking

authority. See 535 U.S. at 217, 218–19, 222. In Menkes, we

deferred to an agency’s interpretation that was offered in an

“exhaustive [adjudicative] decision,” in which the agency

“addressed the issues raised by this court [in remanding the

case] and by Menkes’s counsel in his submission on remand.”

637 F.3d at 326. Moreover, we noted that the agency “was

acting pursuant to an express delegation from Congress”; that

the agency was addressing “precisely the sort of complex,

interstitial questions that the [agency] deserves deference to

address”; and that the agency’s judgment “reflect[ed] a

longstanding agency policy.” Id. at 331–32 (citation omitted).

And in Mylan Laboratories, this court afforded Chevron

deference to two letters issued by the Food and Drug

Administration (“the FDA”) to private disputants. But the

decision in Mylan Laboratories rests explicitly on the same

factors recited by the Court in Barnhart. See Mylan Labs., Inc.,

389 F.3d at 1279–80. This court cited “the complexity of the

statutory regime under which the [agency] operate[d],” the

agency’s “expertise,” the “careful craft of the scheme it devised

to reconcile the various statutory provisions,” and the fact that

the agency’s “decision made no great legal leap but relied in

large part on its previous determination of the same or similar

issues and on its own regulations.” Id. at 1280 (citations

omitted).

In short, in Barnhart, Menkes, and Mylan Laboratories, the

reviewing courts deferred to agency interpretations of statutes

within their domains of delegated authority, because the

challenged interpretations satisfied the factors laid out in

Barnhart; and the agency interpretations were clearly intended

to have general applicability and the force of law. The resulting

actions were thus easily subject to meaningful judicial scrutiny,

because the agency decisions were thoroughly explained.

21

We cannot say the same of the Betancourt Letter,

particularly because there is nothing in it to give deference to.

Indeed, in some ways, it is even less deserving of Chevron

deference than was the opinion letter at issue in Christensen. In

Christensen, at least, the challenged letter offered the issuing

agency’s general policy position with respect to a provision of

the Fair Labor Standards Act, with supporting references to

corresponding regulations. See Opinion Letter from Karen R.

Keesling, Acting Adm’r, Dep’t of Labor (Sept. 14, 1992), 1992

WL 845100. Here, by contrast, the Department offered little

more than uncited, conclusory assertions of law in a short,

informal document that does not purport to set policy for future

CLN determinations. See Betancourt Letter, App. 139. And the

Betancourt Letter is premised on highly questionable

assumptions about foreign law, i.e., Israel’s Nationality Law and

Law of Return, with respect to which the agency is owed no

deference.

The Betancourt Letter Is Entirely Unpersuasive

The Betancourt Letter states that Appellant’s naturalization

did not satisfy the requirements of Section 1. But this

conclusion appears to be based on an unpersuasive view of the

requirements of the INA, some seemingly faulty assumptions

about the requirements of Israeli law, and possible

misunderstandings of the material facts in this case.

There can be no doubt that Appellant “obtain[ed]

naturalization” in Israel, as required by Section 1 of the INA, 8

U.S.C. § 1481(a)(1). See Citizenship Certificate, App. 138;

App. 114 (photocopy of Appellant’s Israeli citizenship card).

And the Department does not doubt that Appellant performed

this act with the necessary “intention of relinquishing United

States nationality,” 8 U.S.C. § 1481(a). Instead, the Department

based its rejection on the supposedly “unambiguous” meaning

of the phrase “upon his own application” in the INA, 8 U.S.C.

§ 1481(a)(1). See Betancourt Letter, App. 139. According to

22

the Department, the conferral of Israeli nationality “by

naturalisation” occurs “upon . . . application,” as the INA

requires, whereas the conferral of nationality “by return” occurs

merely by automatic operation of law, not upon application.

Therefore, in the Department’s view, Appellant did not obtain

naturalization upon application, because he obtained Israeli

citizenship merely by operation of law after receiving his oleh’s

certificate. This conclusion is a non sequitur.

The INA is not, as the Department claims, unambiguous on

the matters in dispute. The first obvious flaw in the Betancourt

Letter is that it fails to comprehend that the INA defines

“naturalization” as “the conferring of nationality of a state upon

a person after birth, by any means whatsoever.” 8 U.S.C. §

1101(a)(23) (emphasis added). As we have noted, there is some

dispute as to how Appellant obtained his Israeli nationality. The

Department contends – and we are inclined to agree, given the

evidence in the record – that Appellant applied for an oleh’s

certificate and became a citizen shortly after that certificate’s

issuance. Appellant counters that he never received an oleh’s

certificate and that the common practice in Israel is to treat an

application for permanent residence as an application for

citizenship. But the difference is immaterial: The INA does not

unambiguously foreclose Appellant’s loss of nationality under

either interpretation of events. In either case, Appellant filed an

“application” that resulted in his “obtaining naturalization”; the

Israeli Minister of the Interior had discretion to deny that

application, see Law of Return, 5710–1950, 4 LSI 114, §§ 2(b),

3(b), as amended by Law of Return (Amendment 5714–1954);

see Addendum; and Appellant’s citizenship was conferred

“upon” his application.

The Department’s statutory argument that Appellant was

obliged to obtain citizenship in Israel “by naturalisation” and not

“by return” is perplexing given the INA’s express, expansive

definition of “naturalization” noted above. As noted, the statute

23

says that “‘naturalization’ means the conferring of nationality of

a state upon a person after birth, by any means whatsoever.”

8 U.S.C. § 1101(a)(23) (emphasis added). How then can it

matter whether Appellant applied for Israeli nationality “by

naturalisation” or “by return”? The Department’s interpretation

would make some sense only if it were right that a person

obtains Israeli nationality “by return” without submitting an

application. But that is not what happened in this case. Indeed,

the Department has conceded that Appellant obtained Israeli

nationality only after he applied for an oleh’s certificate. His

oleh’s certificate – which led to Israeli citizenship – was

obtained only after his application was accepted. Likewise, an

Israeli citizenship card was issued to Appellant only after he had

applied for it. Appellant’s mere presence in Israel was not how

he obtained citizenship.

At oral argument, counsel for the Department argued that

the agency’s interpretation is reasonable, because it prevents

dual–U.S. Israeli citizens from losing their American citizenship

inadvertently. But the Department did not offer this explanation

in the Betancourt Letter. Nor did Department’s counsel explain

why this alleged risk exists, given the INA’s requirement that

the act of “obtaining naturalization . . . upon . . . application”

must be made with the specific expatriating intent to result in a

loss of U.S. citizenship. 8 U.S.C. § 1481(a)(1); Vance, 444 U.S.

at 258–63.

The Department’s counsel also suggested at oral argument

that there is an unbroken string of decisions from the Board of

Appellate Review supporting its interpretation of Section 1 of

the INA. But unlike either the Department of Labor in

Christensen or the FDA in Mylan Laboratories, the Department

here did not explain or cite such purportedly controlling

authority in its Betancourt Letter. It also failed to cite any such

decisions in its briefs to the District Court and to this court. And

Department’s counsel could not say whether these alleged

24

decisions were issued prior to Congress’s adoption of the

“intent” requirement in 1986, or whether any of them involved

a U.S. citizen’s seeking to obtain a CLN, rather than a citizen’s

trying to prevent a loss of nationality.

In sum, because the INA is not unambiguous on these

matters, and because the Betancourt Letter is unpersuasive in

addressing Appellant’s claim for a CLN under Section 1, the

Department can claim no deference for its interpretation of

Section 1 under either Chevron step two or Skidmore.

The Judgment Reached in the Betancourt Letter Is

Neither Logical Nor Rational

The same flaws that lead us to conclude that the Betancourt

Letter lacks the power to persuade also demonstrate that the

process by which the agency reached its judgment was neither

“logical” nor “rational.” Tripoli Rocketry Ass’n, Inc., 437 F.3d

at 77 (citation omitted) (internal quotation marks omitted). As

we have explained,“the [Department’s] judgment” denying

Appellant’s CLN request under Section 1 of the INA, as

expressed in the Betancourt Letter, “was neither adequately

explained . . . nor supported by agency precedent.” Siegel, 592

F.3d at 164. We therefore find that judgment to be arbitrary and

capricious for want of reasoned decisionmaking. See id.

The Appropriate Remedy

For the reasons indicated above, the Betancourt Letter

obviously does not merit Chevron deference. And, following

Skidmore, we find that the letter’s persuasive power is virtually

nil. We also conclude that the agency’s decision is arbitrary and

capricious for want of reasoned decisionmaking. In this

situation, we might hold that Department’s interpretation of

Section 1 is “contrary to law” and order the issuance of a CLN

pursuant to Section 1 of the INA. Pub. Citizen, Inc., 332 F.3d

at 671; see also EDWARDS & ELLIOTT 161 (“When the Skidmore

standard controls, the final judgment on the legality of any

25

contested administrative action rests with the court.” (citation

omitted)). This is the relief that Appellant seeks, and his

position is intuitively appealing.

We recognize, however, that in the field of immigration

generally, and expatriation more specifically, there may be

sensitive issues lurking that are beyond the ken of the court.

The Department, not the court, has the authority, discretion, and

presumed expertise to act in the first instance to address matters

within its domain of authority under the INA, subject of course

to appropriate judicial review. We will therefore pursue a

course of prudence, following the path taken by the court in

Coburn, Tripoli, and Siegel, and remand the case to the District

Court with instructions to remand the case to the Department for

reconsideration of Appellant’s Section 1 claim.

C. Section 2 of the INA

Appellant separately claims that he lost his U.S. nationality

by “taking an oath or making an affirmation or other formal

declaration of allegiance to” Israel. 8 U.S.C. § 1481(a)(2).

Appellant admits that, given his choice to obtain nationality “by

return” rather than “by naturalisation,” Israel did not require him

to swear any oath of allegiance. But he argues that he is entitled

to a CLN nonetheless, because he voluntarily took two oaths of

allegiance, one of which was identical in substance to the

declaration that would have been required of him had he chosen

to obtain nationality “by naturalisation.” See Nationality Law,

5712–1952, 6 LSI 51, § 5(c).

The Department offered two grounds for rejecting

Appellant’s request. First, the Department explained that its

policy is to require “objective and independent” evidence that an

oath has actually taken place. Betancourt Letter, App. 139.

This explanation is completely consistent with the INA’s

requirement that the party seeking to establish expatriation must

do so by the preponderance of the evidence. See 8 U.S.C. §

26

1481(b). And the requirement of “objective and independent”

evidence imposes no significant burden on citizens, like

Appellant, seeking to expatriate. The Department expressly

does not require an expatriating oath to be in writing or to take

any particular form. See U.S. DEPARTMENT OF STATE, 7

FOREIGN AFFAIRS MANUAL – CONSULAR AFFAIRS 1252(e); see

Addendum. Hence, in most situations, the Department’s

requirement for objective evidence should be easy to satisfy. In

a future case, if the Department applies the requirement in a

burdensome or otherwise unfair way, that application would be

subject to judicial review under the arbitrary and capricious

standard.

Here, however, it is manifestly clear that Appellant failed

to satisfy the Department’s requirement. Before this court,

Appellant’s counsel asserted that Appellant took an oath of

allegiance to Israel on two separate occasions. Appellant

purportedly took the “first” oath when he naturalized in 2002,

and he apparently parroted the terms of Israel’s official oath of

allegiance. See Appellant’s Br. at 4–6, 25. But there is nothing

in the record to substantiate that this oath ever took place.

Appellant’s counsel’s assertions regarding this oath are

consistently uncited. And at oral argument, counsel directed us

to a single bullet point in Appellant’s initial request for a CLN,

which states that Appellant “t[ook] the required oath to become

an Israeli citizen.” Letter from Erin Green to Director (July 8,

2009), App. 28. The Department did not err in concluding that

this assertion by Appellant’s representative rather than

Appellant himself was not sufficient evidence that Appellant had

sworn an oath as required by Section 2 of the INA.

Appellant also asserts that he made an oath “in wording of

his own,” Appellant’s Br. at 25, at some point in 2009, see id. at

6. Appellant’s counsel’s description of this “second” oath has

not been precise or consistent. At times, counsel appears to

claim that Appellant actually took this oath within or via one of

27

the two affidavits that Appellant submitted to the Department in

2009. See Appellant’s Br. at 12 (“Mr. Fox . . . had supplied a

signed oath of allegiance to Israel over his signature in 2009.”);

id. at 25 (“The second time Mr. Fox took an oath, he did so in

wording of his own.” (citing Fox Aff. of Renunciation of U.S.

Citizenship, July 7, 2009, App. 31.)). At other times, counsel

appears to claim that the affidavits instead substantiate that

Appellant took an oath in 2002 or at some other point during his

residency in Israel. See Letter from Jack L. B. Gohn to Edward

A. Betancourt (Feb. 22, 2010) (“Mr. Fox has provided an

affidavit to the effect that he took the oath, and that is the only

documentation possible under the circumstances.”), App. 130.

Upon review of the affidavits, however, it hardly matters.

In his November 8, 2009 affidavit, Appellant neither specifically

asserted that he had already taken an oath of allegiance to Israel

nor offered such an oath. See Fox Aff., Nov. 8, 2009, App.

71–72. And in his July 7, 2009 affidavit, Appellant merely

stated: “I would like to affirm that it has been my express intent

to renounce my citizenship in 2002 coupled with the act of

either becoming a citizen of another country, taking another

country’s oath, or a combination of the two.” Fox Aff. of

Renunciation of U.S. Citizenship, July 7, 2009 (emphasis

added), App. 31. The affidavit does not state that Appellant had,

at any point, actually taken an oath; when the oath had been

taken; whether the oath had been observed by anyone; or what

words Appellant had used. Hence, there is simply nothing in the

record that qualifies as objective evidence demonstrating that

Appellant swore an oath of allegiance to Israel.

Second, the Department explained in the Betancourt Letter

that it could not accept Appellant’s CLN request, because his

oath was not sufficiently “meaningful,” insofar as it had not

been required by Israel. Betancourt Letter, App. 139. Appellant

does not claim that his oath was required. Instead, he objects to

the agency’s policy of granting a CLN pursuant to Section 2

28

only to an individual who makes an oath that is required by the

foreign state.

This court confronted whether an individual’s taking an

oath of allegiance to another country qualified as an expatriating

act in the context of reviewing a treason conviction in Gillars v.

United States, 182 F.2d 962 (D.C. Cir. 1950). In that decision,

this court identified several factors that compelled the

conclusion that the making of the oath at issue had not been

expatriating:

There is no indication . . . that the paper which [the

defendant] said she signed was intended as a renunciation

of citizenship; there is no testimony whatever that it was

sworn to before anyone authorized to administer an oath or

indeed before anyone at all; its exact content is uncertain;

if it be treated as an affirmation or declaration rather than

an oath it is informal rather than formal in character; and

there is no connection whatever shown between it and any

regulation or procedure having to do with citizenship or

attaching onself to the Reich or to Hitler. These

circumstances preclude attributing to it the character of

such an oath or affirmation or other formal declaration as

the statute requires to bring about expatriation.

Id. at 983. The court went on favorably to describe a Board of

Immigration Appeals’ decision in which that entity had

explained that “[a]n oath of allegiance has no real significance

unless the oath be made to the state and accepted by the State.

Such acceptance on the part of the State must be made in

accordance with the laws of that State.” Id. (citation omitted)

(internal quotation marks omitted).

Appellant claims that the Department’s policy is contrary to

law, because it imposes a burden on the fundamental right of

expatriation. See Savorgnan v. United States, 338 U.S. 491,

497–99 (1950) (“[T]he United States has supported the right of

29

expatriation as a natural and inherent right of all

people. . . . [The INA’s predecessor] Acts are to be read in the

light of the declaration of policy favoring freedom of

expatriation which stands unrepealed.” (citations omitted)).

According to Appellant, the effect of the Department’s policy is

to deny an avenue of expatriation to individuals who seek to

obtain nationality from countries that do not require the

swearing of an oath of allegiance.

We need not decide in this case whether the Department’s

requirement imposes an impermissible burden on the exercise of

Appellant’s right to expatriate. The first ground relied upon by

the Department to reject Appellant’s Section 2 claim –

insufficient evidence – is enough to support the agency’s

judgment on this issue. As noted above, Appellant failed to

show by a preponderance of the evidence that he took any oath

that satisfied the requirements of Section 2. So there is nothing

in the record that qualifies as objective evidence demonstrating

that Appellant swore an oath of allegiance to Israel. Therefore,

Appellant’s failure of proof on this issue forecloses his claim

under Section 2.

D. Section 5 of the INA

The Department has consistently maintained that Appellant

could, at his leisure, obtain a CLN by “making a formal

renunciation of nationality before a diplomatic or consular

officer of the United States.” 8 U.S.C. § 1481(a)(5)

(“Section 5”). Given our disposition, we find it unnecessary to

address Appellant’s claims that he cannot request a CLN under

Section 5 or to speculate as to why he did not seek a CLN under

this provision in the first place.

We do note, however, that it is immaterial here whether

Appellant could receive a CLN under Section 5. There is

nothing in the INA to suggest that an individual who might be

entitled to a CLN under one provision cannot be entitled to a

30

CLN under another. The fact that Appellant could have

received, or still could receive, a CLN under Section 5 cannot,

without more, justify the Department’s denial of Appellant’s

request for a CLN under Section 1 or 2 of the INA.

Conclusion

The judgment of the District Court is affirmed in part and

reversed in part. We remand the case to the District Court with

instructions to remand the case to the Department of State to

reconsider Appellant’s request for a CLN pursuant to Section 1

of the INA in a manner consistent with this opinion.

So ordered.

ADDENDUM

Nationality (Amendment No. 2) Law, 5728–1968

• http://www.israellawresourcecenter.org/israellaws/fulltex

t/nationality680807.htm

Law of Return (Amendment 5714–1954)

• http://www.knesset.gov.il/laws/special/eng/return.htm

U.S. Department of State, 7 Foreign Affairs Manual –

Consular Affairs 1250–54 (Last visited May 29, 2012)

• http://www.state.gov/documents/organization/120544.pdf

WILLIAMS, Senior Circuit Judge, concurring: I do not

understand us to be finding that decisions of the State

Department’s Director, Office of Policy Review and

Interagency Liaison, Bureau of Consular Affairs, interpreting

ambiguous provisions of 8 U.S.C. § 1481(a) in order to decide

whether an applicant for a Certificate of Loss of Nationality is

entitled to such a certificate, can never qualify for Chevron

deference (in academic parlance, the “Chevron Step Zero”

issue). It is enough that the explanation offered here does not

qualify as reasoned decisionmaking. Thus a remand is

essential. See, e.g., Northern Air Cargo v. U.S. Postal

Service, 674 F.3d 852, 860 (D.C. Cir. 2012) (where the

agency has made “no attempt . . . to parse or reconcile the

ambiguous statutory language,” the “proper course is . . . to

remand . . . to gain authoritative and careful interpretations of

the disputed provisions”).