Petition for Writ of Certiorari — Allan Douglas Wilson, Petitioner v. Department of State, et al.
Supreme Court briefMar 13, 2025
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12011530.1.6-35
FILED
MAR 1 3 2025
IN THE SUPREME COURT OF THE UNITED STATES
ORIGINAL
ALLAN DOUGLAS WILSON - PETITIONER
VS.
UNITED STATES DEPARTMENT OF STATE AND
UNITED STATES EMBASSY PHILIPPINES - RESPONDENTS
ON PETITION FOR A WRIT OF CERTIORARI TO
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Allan Douglas Wilson
1321 Upland Drive, STE 21311
Houston, Texas 77043
Tel: (502) 403-2378
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QUESTIONS PRESENTED
1. Whether the D.C. Circuit's reliance on mootness doctrine to avoid addressing a case
of first impression regarding temporary deprivation of citizenship rights constitutes an
error that warrants this Court's review, especially where the petitioner has raised
substantive constitutional and statutory claims for compensatory damages that remain
viable despite the mootness of injunctive relief claims.
2. Whether 28 U.S.C. § 1782, which authorizes federal district courts to order a
"person" to provide testimony dr produce documents "for use in a proceeding in a
foreign or international tribunal," allows courts to order federal agencies to preserve
and produce evidence through their representatives, or whether the federal government
is categorically excluded from the statute's reach despite the absence of any textual
distinction between the entity receiving a court order and the individuals who would
ultimately provide testimony or evidence, thereby depriving American citizens of their
constitutional right to due process when seeking evidence for use in foreign proceedings.
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LIST OF PARTIES
[X] All parties appear in the caption of the case on the cover page.
RELATED CASES
- Wilson v. United States Department of State and United States Embassy Philippines,
No. l:23-cv-00216-CJN, U.S. District Court for the District of Columbia. Judgment
entered September 5, 2024.
- Wilson v. United States Department of State and United States Embassy Philippines,
No. 24-5204, U.S. Court .of Appeals for the District of Columbia Circuit. Judgment
entered December 23, 2024.
- Wilson v. United States Department of State and United States Embassy Philippines,
No. 24-5204, U.S. Court of Appeals for the District of Columbia Circuit. Petition for
rehearing denied April 22, 2025.
- Wilson v. Ottawa Police Service et al., Civil Action No. cv-0097442, Ontario Superior
Court of Justice. Case filed September 17, 2024.
- Wilson v. Ottawa Police Service et al., File No. DC-25-00002976, Ontario Divisional
Court. Case transferred from Ontario Superior Court.
3
TABLE OF CONTENTS
OPINIONS BELOW....... ........................................
4-5
JURISDICTION..................................................................... 5-6
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED............. ...6-7
STATEMENT OF THE CASE.................... .................................. 7-10
REASONS FOR GRANTING THE WRIT.................................. .........10-40
I. THE COURT IMPROPERLY AVOIDED A CASE OF FIRST
IMPRESSION..... ........ 10-13
II. THE COURT FAILED TO ADDRESS CONSTITUTIONAL AND STATUTORY
BASES FOR RELIEF........ ................................................... ...13-15
III. THE COURT OVERLOOKED THAT APPELLANT EXPLICITLY
ABANDONED INJUNCTIVE RELIEF CLAIMS.... ..................'.................15-17
IV. THE COURT MISAPPLIED THE MOOTNESS DOCTRINE TO
COMPENSATORY DAMAGES........................................................ 17-19
V. THE CONSTITUTIONAL IMPLICATIONS WARRANT FULLER
CONSIDERATION.................................................................. 19-21
VI. THE D.C. CIRCUIT'S RULING IN AL FAYED FUNDAMENTALLY BETRAYS
THE SPIRIT AND PURPOSE OF § 1782, ESPECIALLY IN THE CONTEXT OF
EVIDENCE PRESERVATION........................................................ 21-24
VII. THE D.C. CIRCUIT'S INTERPRETATION IGNORES THE DISTINCTION
BETWEEN AN ENTITY RECEIVING A COURT ORDER AND THE INDIVIDUALS
WHO PROVIDE TESTIMONY OR EVIDENCE................................
24-26
VIII. SECTION 1782 FUNCTIONS AS AN INTERNATIONAL COUNTERPART
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TO FOIA, WITH AGENCIES SIMILARLY REQUIRED TO RESPOND
THROUGH REPRESENTATIVES...................................................... 26-29
IX. THE TEXTUAL ANALYSIS IN AL FAYED IS FUNDAMENTALLY
FLAWED........... 29-30
X. THE D.C. CIRCUIT'S INTERPRETATION TRANSFORMS § 1782 INTO AN
INSTRUMENT OF STATE SECRECY RATHER THAN CITIZEN
EMPOWERMENT........... 30-32
XI. THE PROPER FOCUS SHOULD BE ON THE AGENCY REPRESENTATIVES
WHO PROVIDE TESTIMONY OR DOCUMENTS.............................
32-34
XII. THE LEGISLATIVE HISTORY SUPPORTS A BROADER READING OF
§ 1782 AS SERVING CITIZEN INTERESTS RATHER THAN STATE
SECRECY.......... 34-36
.
.
XIII. THE DENIAL OF EVIDENCE PRESERVATION ORDERS VIOLATES
AMERICAN CITIZENS' CONSTITUTIONAL DUE PROCESS RIGHTS.... ........ ......:.36- 39
XIV. THIS CASE PRESENTS AN IDEAL VEHICLE TO RESOLVE THESE
IMPORTANT QUESTIONS........................................................... 39-40
CONCLUSION.................................
40-42
INDEX TO APPENDICES
APPENDIX A - Decision of the United States Court of Appeals for the District of
Columbia Circuit (December 23, 2024)
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APPENDIX B - Decision of the United States District Court for the District of
Columbia (September 5, 2024) .
APPENDIX C - Order of the United States Court of Appeals for the District of
Columbia Circuit Denying Petition for Rehearing (April 22, 2025)
;
APPENDIX D - Petition for Panel Rehearing Filed with the United States Court of
Appeals for the District of Columbia Circuit (February 14, 2025)
TABLE OF AUTHORITIES CITED
CASES
Afroyim v, Rusk , 387 U.S. 253 (1967)
..............
14,19
Al Fayed v. CIA , 229 F.3d 272 (D.C. Cir. 2000)
8, 9, 10, 11, 12, 13, 14,
17, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 40
Armstrong v. Executive Office of the President, 1 F.3d 1274 (D.C. Cir. 1993)...37-38
Chafin v. Chafin , 568 U.S. 165 (2013)
8
Dep't of Air Force v. Rose , 425 U.S. 352 (1976)
31-32
District of Columbia v. Carter , 409 U.S. 418 (1973)
8
FDIC v. Meyer , 510 U.S. 471 (1994)
8
Goldberg v. Kelly , 397 U.S. 254 (1970)
37
Greene v. McElroy , 360 U.S. 474 (1959)
37
Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004)
6
40
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Keyter v. Bush , No. 04-5324, 2005 WL 375623 (D.C. Cir. Feb. 16, 2005).... 8
Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)...........................38
Mathews v. Eldridge , 424 U.S. 319 (1976).................................... 36-37
Morrissey v. Brewer , 408 U.S. 471 (1972)........................
...37
NLRB v. Robbins Tire & Rubber Co. , 437 U.S. 214 (1978)........
35-36
Powell v. McCormack , 395 U.S. 486 (1969).................................... 17-18
Sachs v. Republic of Austria , 577 U.S. 27 (2015)........................ ....33
Taxpayers Watchdog, Inc. v. Stanley , 819 F.2d 294 (D.C. Cir. 1987)..___8
United States v. Majestic Relty. Corp. , 344 U.S. 434 (1953)................. 11
STATUTES AND RULES
1 U.S.C. § 1................................................................... 6, 30
5 U.S.C. § 552 (Freedom of Information Act)............... ..... ........6, 12, 13, 26, 27, 28, 29, 30,
31, 32, 34, 35, 36, 39, 40, 41
18 U.S.C. § 242.....................................:.......................... 8
28 U.S.C. § 1254(1)............................................................. 6
28 U.S.C. § 1346(b)............................................................ 8
28 U.S.C. § 1782............ 6, 7, 8, 9, 10, 11, 12, 13, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31,
32, 33, 34, 35, 36, 37, 38, 39, 40, 41
42 U.S.C. § 1983............................................................... 8
44 U.S.C. § 3301 (Federal Records Act)..................................... .37-38
Federal Rule of Appellate Procedure 40...................................... 10
D.C. Circuit Rule 40.......................................................... 10
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PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to review the judgment
below.
OPINIONS BELOW
[X] For cases from federal courts:
The opinion of the United States Court of Appeals appears at Appendix A to the
petition and is
[ ] reported at; or,
[ ] has been designated for publication but is not yet reported; or,
[X] is unpublished.
The order of the United States Court of Appeals denying rehearing appears at
Appendix C to the petition and is
[ ] reported at; or,
[ ] has been designated for publication but is not yet reported; or,
[X] is unpublished.
The petition for rehearing filed with the United States Court of Appeals appears at
Appendix D to the petition.
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The opinion of the United States District Court appears at Appendix B to the petition
and is
[ ] reported at
: or,
[ ] has been designated for publication but is not yet reported; or,
[X] is unpublished.
JURISDICTION
[X] For cases from federal courts:
The date on which the United States Court of Appeals decided my case was December
'
23,2024.
[ ] No petition for rehearing was timely filed in my case.
[X] A timely petition for rehearing was filed on February 14, 2025, and was denied by
the United States Court of Appeals on April 22, 2025, and a copy of the order denying
rehearing appears at Appendix C.
The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
9
o
ID
O
OJ
28 U.S.C. § 1782(a) provides in relevant part:
"The district court of the district in which a person resides or is found may order him to.
give his testimony or statement or to produce a document or other thing for use in a
proceeding in a foreign or international tribunal, including criminal investigations
conducted before formal accusation."
1 U.S.C. § 1 provides in relevant part:
"In determining the meaning of any Act of Congress, unless the context indicates
otherwise... the words 'person' and 'whoever' include corporations, companies,
associations, firms, partnerships, societies, and joint stock companies, as well as
individuals."
5 U.S.C. § 552(a)(3)(A) (Freedom of Information Act) provides in relevant part:
"[E]ach agency, upon any request for records... shall make the records promptly
available to any person."
U.S. Const, amend. V provides in relevant part:
"No person shall... be deprived of life, liberty, or property, without due process of law..."
STATEMENT OF THE CASE
This case presents two distinct but related issues: (1) whether the D.C. Circuit
improperly avoided a case of first impression regarding temporary deprivation of
citizenship rights by misapplying mootness doctrine, and (2) whether federal agencies
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can be ordered to preserve and produce evidence through their representatives under
28 U.S.C. § 1782 for use in foreign proceedings.
Background of Citizenship Rights Claims
Petitioner Allan Douglas Wilson sought a U.S. passport at the U.S. Embassy in the
Philippines in 2022, believing that official recognition of his U.S. citizenship would
provide constitutional protections against alleged surveillance that had caused him
physical harm. The government initially denied his request, and Wilson brought suit
against the Department of State and the Embassy for injunctive relief and damages.
After Wilson filed suit, the government issued him a passport.
The District Court dismissed Wilson's claims on September 5, 2024, finding that his
request for injunctive relief was moot since he had received a passport, and that he had
no cause of action for damages under any of the legal theories he presented: 42 U.S.C. §
1983, 18 U.S.C. § 242, Bivens, or the Federal Tort Claims Act.
Wilson appealed to the D.C. Circuit, which summarily affirmed the District Court's
decision on December 23, 2024, stating that "the merits of the parties' positions are so
clear as to warrant summary action." The court held that Wilson's claim for injunctive
relief was moot and that he had no viable cause of action for damages under any of the
theories he presented.
Wilson filed a petition for panel rehearing on February 14, 2025, arguing that:
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1. The court improperly avoided a case of first impression regarding remedies for
temporary revocation of citizenship rights;
2. The court failed to address his constitutional and statutory bases for relief;
3. The court overlooked that he had explicitly abandoned injunctive relief claims;
4. The court misapplied mootness doctrine to his compensatory damages claims; and
5. The constitutional implications of temporary deprivation of citizenship rights
warranted fuller consideration.
On April 22, 2025, the D.C. Circuit denied the petition for rehearing without
explanation and directed the Clerk to "accept no further submissions from appellant in
this closed case."
Background of § 1782 Evidence Preservation Claims
Background of § 1782 Evidence Preservation Claims
As part of his case, Wilson sought to preserve evidence held by federal agencies,
specifically including evidence potentially held by the Central Intelligence Agency
(CIA), for use in an international proceeding in Canada. Wilson filed a motion under 28
U.S.C. § 1782 in the District Court requesting an order for the CIA to preserve records
subject to a Privacy Act request that Wilson had submitted earlier in 2024.
The Canadian proceeding at issue is Wilson v. Ottawa Police Service et al., originally
filed as Civil Action No. cv-0097442 in the Ontario Superior Court of Justice on
September 17, 2024, and subsequently transferred to the Ontario Divisional Court as
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File No. DC-25-00002976. In this Canadian action, Petitioner alleges violations of his
rights under the Canadian Charter of Rights and Freedoms, claiming that the
defendants (Ottawa Police Service, The Ottawa Hospital, and Canadian Joint
Operations Command) engaged in a coordinated campaign of surveillance, involuntary
medical treatment, unlawful detention, and experimentation without his consent over a
24 -year period.
The evidence Petitioner sought to preserve through the § 1782 motion relates directly
to allegations in the Canadian case concerning information sharing between Canadian
authorities and U.S. government agencies, specifically including claims that
information was "shared with U.S. Government officials without warrants." The
Canadian proceeding seeks both injunctive relief against ongoing surveillance activities
and substantial damages totaling $13,109,059.50 CAD.
'
: .
The District Court characterized this approach as "procedurally unusual," noting that
"motions under § 1782 are typically brought as standalone suits." The court denied
Wilson's motion, relying on the D.C. Circuit's precedent in Al Fayed v. CIA, 229 F.3d
272 (D.C. Cir. 2000), which held that the federal government is excluded from the
definition of a "person" subject to discovery under § 1782.
Wilson intended to use the § 1782 order in conjunction with a planned Freedom of
Information Act (FOIA) request to the CIA. The preservation order was necessary to
prevent the potential destruction of evidence that could be vital to Wilson's proceedings
13
in Canada, as well as to ensure that any subsequent FOIA request would yield
complete records.
The D.C. Circuit affirmed the District Court's denial of Wilson's § 1782 motion, citing
Al Fayed and concluding that "the federal government is excluded from the definition of
a 'person' subject to discovery under § 1782."
The denial of Wilson's motion to preserve evidence has potentially allowed for the
destruction of evidence that could have been vital for his Canadian proceedings, raising
serious concerns regarding both the integrity of the international judicial process and
fundamental principles of due process.
■
REASONS FOR GRANTING THE WRIT
I. THE COURT IMPROPERLY AVOIDED A CASE OF FIRST IMPRESSION
This Court should grant certiorari because the D.C. Circuit improperly used mootness
doctrine to avoid addressing a novel legal issue of first impression. The case presents a
previously unaddressed question regarding remedies available to U.S. citizens whose
citizenship rights are temporarily revoked without due process. Neither the district
court nor the D.C. Circuit cited any precedent addressing similar circumstances
because this is genuinely a case of first impression that warrants full consideration
rather than summary disposition.
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In his petition for rehearing, Wilson argued that the Court's reliance on mootness
appears to be a mechanism to avoid addressing a novel legal issue never before
presented to the Circuit. Neither the district court nor the D.C. Circuit cited any
precedent addressing similar circumstances—precisely because this case presents a
matter of first impression regarding remedies available to U.S. citizens whose
citizenship rights are temporarily revoked without due process.
The D.C. Circuit's use of mootness doctrine to dismiss this novel issue contradicts the
principle that cases of first impression deserve careful consideration, particularly when
they involve fundamental constitutional rights. As this Court noted in United States v.
Majestic Relty. Corp., 344 U.S. 434, 437 (1953), courts should carefully consider cases
presenting novel issues affecting fundamental rights.
The summary affirmance and subsequent denial of rehearing without analysis further
compound the problem. The D.C. Circuit's terse order granting summary affirmance
and denying rehearing fail to engage with the substantive legal questions presented,
effectively insulating the issue from appellate review. This approach creates a troubling
precedent whereby courts can sidestep novel constitutional questions through
mechanical application of justiciability doctrines without addressing the underlying
merits.
This Court has consistently emphasized the importance of allowing thorough
consideration of novel legal questions, especially those involving fundamental
constitutional rights. The lower courts' avoidance of the substantive issues presented in
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this case—through invocation of mootness without addressing the distinct
compensatory damages claims—warrants this Court's review. Without intervention, a
significant constitutional question regarding temporary deprivation of citizenship
rights will remain unresolved, with no remedy available to citizens who suffer similar
deprivations in the future.
The fact that both the District Court and the D.C. Circuit avoided addressing the
fundamental constitutional issue:—whether temporary deprivation of citizenship rights
without due process gives rise to a compensatory remedy—underscores the need for
this Court's intervention. Citizens have a right to expect that courts will not use
procedural mechanisms to avoid addressing substantial constitutional questions,
particularly when.they involve such fundamental rights as citizenship.
II. THE COURT FAILED TO ADDRESS CONSTITUTIONAL AND STATUTORY
BASES FOR RELIEF
This Court should grant certiorari because both the District Court and the D.C. Circuit
wholly failed to address Petitioner's primary causes of action under the U.S.
Constitution and Immigration and Nationality Act (INA) §§ 301 and 309. These
fundamental bases for relief were presented in both the district court and on appeal,
yet neither court acknowledged them in their respective orders.
This oversight is particularly significant given this Court's definitive ruling in Afroyim
v. Rusk , 387 U.S. 253 (1967), which held that citizenship cannot be involuntarily
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revoked under the Fourteenth Amendment. The effective denial of Petitioner's
citizenship rights for one year, without voluntary renunciation, constitutes a de facto
revocation of citizenship in violation of Afroyim's core holding.
Instead of addressing these constitutional claims, both courts focused exclusively on
whether Petitioner had viable causes of action under 42 U.S.C. § 1983, 18 U.S.C. § 242,
Bivens, or the FTCA. This approach fundamentally mischaracterized Petitioner's
claims and avoided addressing the core constitutional question: whether temporary
deprivation of citizenship rights without due processes constitutionally permissible and,
if not, what remedies are available.
The failure to address these constitutional violations renders the courts' summary
dispositions incomplete and erroneous. By ignoring Petitioner's primary constitutional
and statutory arguments, the lower courts effectively denied him any opportunity to
have these substantial legal questions addressed. This kind of selective engagement
with a litigant's arguments is particularly problematic when fundamental
constitutional rights are at stake.
This Court should grant certiorari to ensure that lower courts do not avoid addressing
substantial constitutional questions through selective engagement with litigants'
arguments. The question of what remedies are available for temporary deprivation of
citizenship rights is too important to leave unaddressed, and this Court's intervention
is necessary to provide guidance on this significant constitutional issue.
17
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III. THE COURT OVERLOOKED THAT APPELLANT EXPLICITLY ABANDONED
INJUNCTIVE RELIEF CLAIMS
This Court should grant certiorari because the D.C. Circuit's conclusion that
"appellant's claim for injunctive relief was moot" overlooks a critical procedural fact:
Petitioner formally abandoned all injunctive relief claims in his Motion for Partial
Summary Judgment ‘Statement of Facts’ filed September 11, 2023.
In the U.S. District Court for the District of Columbia, a plaintiff may expressly waive
claims through clear statements in motions or briefs. Petitioner did exactly this, yet
both the District Court and the D.C. Circuit erroneously treated the abandoned
injunctive claims as live controversies before dismissing.them as moot.
This error has significant implications for the disposition of the case. By focusing on
mootness of injunctive relief claims that had already been abandoned, both courts
avoided addressing Petitioner's remaining claims for compensatory damages based on
the constitutional violations he alleged. This approach effectively denied Petitioner any
opportunity to have his damages claims considered on their merits.
The lower courts' failure to recognize Petitioner's explicit abandonment of injunctive
relief claims demonstrates a troubling lack of engagement with the actual arguments
and procedural history of the case. This kind of error is particularly concerning when it
results in the dismissal of potentially meritorious constitutional claims without
consideration.
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This Court should grant certiorari to correct this error and to ensure that lower courts
properly engage with the actual claims presented by litigants, rather than dismissing
cases based on mischaracterizations of their procedural posture. The D.C. Circuit's
failure to acknowledge Petitioner's express abandonment of injunctive relief claims
calls into question the thoroughness of its review and underscores the need for this
Court's intervention.
IV. THE COURT MISAPPLIED THE MOOTNESS DOCTRINE TO.COMPENSATORY
DAMAGES
This Court should grant certiorari because the D.C. Circuit misapplied the mootness
doctrine to Petitioner's compensatory damages claims. The court's order fails to
acknowledge or address Petitioner's primary claim for compensatory damages, which
was clearly articulated yet ignored in both the District Court's dismissal order and the
D.C. Circuit's summary affirmance.
The mere fact that injunctive relief became moot does not extinguish separate claims
for compensatory damages arising from past constitutional violations. As this Court
held in Powell v. McCormack , 395 U.S. 486, 495-500 (1969), while injunctive relief
may become moot, damages claims can remain viable. The D.C. Circuit's failure to
apply this well-established principle constitutes a significant legal error that warrants
this Court's review.
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The absence of precedent addressing temporary deprivations of citizenship rights and
corresponding remedies further demonstrates that this is a case of first impression that
should not have been summarily dismissed through mootness doctrine. The D.C.
Circuit's approach effectively creates a jurisdictional gap where no remedy exists for
temporary but unconstitutional deprivations of citizenship rights.
This approach is particularly troubling because it allows the government to engage in a
form of strategic mooting—temporarily denying constitutional rights and then
restoring them before a final judgment on the merits, thereby avoiding any
accountability for the interim deprivation. Without the possibility of compensatory
damages, there is no deterrent against such constitutional violations, and citizens have
no remedy for the harms they suffer during the period of deprivation.
,
-
This Court should grant certiorari to clarify that claims for compensatory damages
arising from past constitutional violations remain viable even when claims for
injunctive relief become moot. Without this clarification, government agencies will have
an incentive to temporarily deprive citizens of their constitutional rights, secure in the
knowledge that they can avoid liability by restoring those rights before final judgment.
V. THE CONSTITUTIONAL IMPLICATIONS WARRANT FULLER
CONSIDERATION
This Court should grant certiorari because the constitutional implications of this case
warrant fuller consideration than they received in the courts below. The D.C. Circuit's
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summary disposition creates a dangerous precedent whereby government agencies
could effectively revoke citizenship rights for arbitrary periods without consequence,
contrary to both Afroyim and the Fourteenth Amendment's citizenship protections.
The temporary but complete denial of Petitioner's citizenship rights for one year
represents a significant constitutional injury. The rights of citizenship are among the
most fundamental in our constitutional system, and their temporary deprivation
without due process raises serious constitutional concerns that deserve thorough
judicial consideration, not summary dismissal.
The D.C. Circuit's approach effectively creates a constitutional blind spot, where
temporary deprivations of citizenship rights—no matter how severe or unjustified—are
beyond judicial remedy. This result cannot be reconciled with this Court's
jurisprudence emphasizing the fundamental nature of citizenship rights and the
constitutional limitations on the government's power to abridge those rights.
The constitutional question presented—whether temporary deprivation of citizenship
rights without due process is constitutionally permissible and, if not, what remedies are
available—is too important to leave unaddressed. The absence of clear precedent on
this issue further underscores the need for this Court's guidance.
This Court should grant certiorari to ensure that constitutional questions of this
magnitude receive the thorough consideration they deserve, rather than being subject
to summary disposition through mechanical application of justiciability doctrines.
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Without this Court's intervention, a significant gap in constitutional protection will
persist, leaving citizens vulnerable to temporary but consequential deprivations of their
most fundamental rights.
VI. THE D.C. CIRCUIT'S RULING IN AL FAYED FUNDAMENTALLY BETRAYS
THE SPIRIT AND PURPOSE OF § 1782, ESPECIALLY IN THE CONTEXT OF
EVIDENCE PRESERVATION
Turning to the second question presented, this Court should grant certiorari because
the D.C. Circuit's decision in Al Fayed represents a stark divergence from the core
purpose of § 1782—to provide broad assistance to foreign tribunals and litigants in
obtaining evidence located within the United States. By categorically excluding federal
agencies from the statute's reach, the D.C. Circuit has transformed § 1782 from an
instrument of international cooperation and transparency into a shield protecting
government agencies from accountability in international proceedings.
This result undermines the statute's fundamental purpose in three critical ways:
1. It creates an asymmetrical system where the United States expects cooperation from
foreign governments in providing evidence for U.S. proceedings while simultaneously
exempting its own agencies from reciprocal obligations;
2. It places the interests of government secrecy above the interests of citizens seeking
access to justice in international forums;
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3. It arbitrarily limits the statute's reach based on distinctions not found in the 1
statutory text.
The Al Fayed decision effectively creates a two-tiered system of justice: private
entities and individuals can be ordered to provide evidence for use in foreign
proceedings, while government agencies—often the sole possessors of important
evidence—remain insulated from such orders regardless of the importance of the
evidence they hold.
In the specific context of evidence preservation, this problem is particularly acute.
When Petitioner sought an order requiring the CIA to preserve evidence that could
later be requested through FOIA, the D.C. Circuit's interpretation prevented the court
from issuing this minimally intrusive order. The result is that important evidence may
now be destroyed with impunity—evidence that might have been vital to Petitioner's
proceedings in Canada.
This Court should grant certiorari to ensure that § 1782 serves its intended purpose as
a tool for international judicial cooperation, rather than as a shield for government
secrecy. Without this Court's intervention, the statute will continue to operate in a
fundamentally asymmetrical way, undermining both international comity and
American citizens' access to justice in international forums.
23
VII. THE D.C. CIRCUIT'S INTERPRETATION IGNORES THE DISTINCTION
BETWEEN AN ENTITY RECEIVING A COURT ORDER AND THE INDIVIDUALS
WHO PROVIDE TESTIMONY OR EVIDENCE
This Court should grant certiorari because the D.C. Circuit in Al Fayed fundamentally
erred by failing to recognize the distinction between the entity receiving a court order
and the individuals who ultimately provide testimony or produce documents. Section
1782 states that a district court "may order him to give his testimony or statement or to
produce a document or other thing." The statute does not differentiate between the
"person" who receives the order and the individual who gives testimony.
When a court issues an order to a corporation under § 1782, it is understood that the
corporation itself cannot literally testify—rather, a representative of the corporation
provides testimony or produces documents on behalf of the entity. The same logic
should apply to federal agencies:
1. A court can order a federal agency to provide testimony or documents;
2. The agency, through its representatives or officials, complies with that order;
3. Nothing in the text of § 1782 precludes this common-sense reading.
The D.C. Circuit's interpretation creates an artificial barrier to discovery that is not
supported by the statutory text and serves only to insulate government agencies from
transparency and accountability in international proceedings.
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This interpretive error is particularly significant because it effectively immunizes
federal agencies from the reach of § 1782, regardless of the importance of the evidence
they hold or the centrality of that evidence to foreign proceedings. This result cannot be
reconciled with the statute's purpose of providing broad assistance to foreign tribunals
and litigants.
This Court should grant certiorari to correct this interpretive error and to clarify that §
1782 permits courts to order federal agencies to produce evidence through their ;
representatives, just as courts routinely order corporate entities to do the same.
Without this clarification, federal agencies will continue to enjoy an unjustified
exemption from the statute's reach, undermining its effectiveness as a tool for
international judicial cooperation.
.
VIII. SECTION 1782 FUNCTIONS AS AN INTERNATIONAL COUNTERPART TO
FOIA, WITH AGENCIES SIMILARLY REQUIRED TO RESPOND THROUGH
REPRESENTATIVES
This Court should grant certiorari because the D.C. Circuit's interpretation in Al
Fayed creates an inconsistent legal framework where federal agencies must comply
with transparency obligations under FOIA domestically but can evade similar
obligations in the international context under § 1782. This inconsistency serves no
legitimate purpose and only benefits government agencies seeking to avoid scrutiny of
their actions in international proceedings.
25
12011530.1.
The Freedom of Information Act (FOIA), 5 U.S.C. § 552, provides a useful parallel that
demonstrates the flawed reasoning in Al Fayed . Under FOIA, federal agencies are
required to make records "promptly available to any person" upon request. When
responding to FOIA requests, agencies necessarily act through their representatives—
officials who search for, review, and produce responsive documents.
Like § 1782, FOIA does not explicitly define federal agencies as "persons" who can be
ordered to produce documents. Instead, FOIA creates a mechanism through which
individuals can request documents, and agencies comply with these requests through
designated representatives.
The parallel is clear:
■
1. Both FOIA and § 1782 establish mechanisms for obtaining information from'
government agencies;
2. Both statutes necessarily contemplate that agencies will respond through their
representatives;
3. Both statutes serve important public interests in transparency and access to
information.
Section 1782 can be understood as extending this document production framework to
the international context, allowing foreign tribunals and litigants to access evidence
that might otherwise be unavailable. Just as FOIA does not require that federal
agencies themselves be defined as "persons" in order to respond to information requests
26
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through their representatives, § 1782 should not be constrained by an artificially
narrow reading of the term "person."
In the specific case of Petitioner, the denial of the § 1782 motion to preserve evidence
threatens to undermine the effectiveness of the FOIA process itself. Petitioner sought
to ensure that evidence would remain available for a subsequent FOIA request.
Without the preservation order, the CIA retains the ability to destroy potentially
relevant evidence before it can be requested through FOIA—effectively circumventing
both statutory schemes through a technical reading of § 1782 that serves no legitimate
purpose.
This Court should grant certiorari to establish a coherent framework that recognizes §
1782 as an international counterpart to FOIA, with both statutes creating mechanisms
for obtaining information from government entities through their representatives.
Without this clarification, government agencies will continue to exploit the
inconsistency between these two statutory schemes to shield themselves from
accountability in international proceedings.
IX. THE TEXTUAL ANALYSIS IN AL FAYED IS FUNDAMENTALLY FLAWED
This Court should grant certiorari because the textual analysis in Al Fayed is
fundamentally flawed. The decision relies on a rigid and mechanical application of the
Dictionary Act, 1 U.S.C. § 1, without properly considering the context of § 1782. The
Dictionary Act itself states that its definitions apply "unless the context indicates
27
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otherwise.". The context of § 1782—a statute designed to provide broad discovery
assistance for international proceedings—strongly indicates that federal agencies
should be included.
.....
Moreover, even if the term "person" in § 1782 excludes federal agencies themselves,
nothing in the statute precludes a court from:
1. Ordering an agency to designate an appropriate official to provide testimony;
2. Ordering the preservation of documents in agency possession; or
3. Ordering the production of agency records through agency representatives.
The D.C. Circuit's interpretation creates a false dichotomy between the agency and its
representatives, when in reality both corporate and government entities can only act
through human agents. This technical parsing of language serves to frustrate the
statute's purpose and undermines its effectiveness as a tool for international judicial
cooperation.
The Al Fayed decision relies on an overly technical reading of the statute that ignores
the practical realities of how discovery operates. When a court orders a corporation to
provide testimony or documents under § 1782, it is understood that natural persons—
employees or officers of the corporation—will actually provide that testimony or those
documents. There is no principled reason why the same framework should not apply to
federal agencies.
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This Court should grant certiorari to correct this interpretive error and to ensure that §
1782 is interpreted in a manner consistent with its purpose and practical operation.
Without this clarification, federal agencies will continue to enjoy an unjustified
exemption from the statute's reach, undermining its effectiveness as a tool for
international judicial cooperation.
X. THE D.C. CIRCUIT'S INTERPRETATION TRANSFORMS § 1782 INTO AN
INSTRUMENT OF STATE SECRECY RATHER THAN CITIZEN EMPOWERMENT
This Court should grant certiorari because the D.C. Circuit's interpretation in Al Fayed
fundamentally transforms § 1782 from a tool designed to empower citizens and foreign
tribunals into an instrument that shields government agencies from accountability in
international proceedings. This transformation contradicts both the letter and spirit of
the statute.
Congress enacted § 1782 to facilitate the gathering of evidence for use in foreign
proceedings, recognizing that access to evidence is essential to the fair administration
of justice. The statute represents a congressional judgment that U.S. courts should
provide assistance to foreign tribunals and litigants seeking evidence located within the
United States. By categorically excluding federal agencies from the statute's reach, the
D.C. Circuit has effectively privileged government secrecy over this congressional policy
favoring transparency and international cooperation.
This Court has repeatedly emphasized that transparency in government serves vital
public interests. As noted in Dep't of Air Force v. Rose, 425 U.S. 352, 372 (1976),
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"disclosure, not secrecy, is the dominant objective" of statutes like FOIA. The same
principle should inform the interpretation of § 1782, which serves a similar function in
the international context.
The D.C. Circuit's interpretation creates a troubling asymmetry where private entities
and individuals can be ordered to provide evidence for use in foreign proceedings, while
government agencies—often the sole possessors of crucial evidence—remain insulated
from such orders. This asymmetry serves no legitimate purpose and only benefits
government agencies seeking to avoid scrutiny of their actions in international
proceedings.
This Court should grant certiorari to ensure that § 1782 is interpreted in a manner
consistent with its purpose of promoting transparency and international judicial
cooperation, rather than as a shield for government secrecy. Without this Court's
intervention, federal agencies will continue to exploit the D.C. Circuit's interpretation
to avoid accountability in international proceedings, undermining both the statute's
purpose and the interests of justice.
XI. THE PROPER FOCUS SHOULD BE ON THE AGENCY REPRESENTATIVES
WHO PROVIDE TESTIMONY OR DOCUMENTS
This Court should grant certiorari because the proper focus under § 1782 should be on
the individuals who actually provide testimony or documents, rather than on the entity
that receives the court order. The statute authorizes a district court to "order him to
give his testimony or statement or to produce a document or other thing." This
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language focuses on the act of giving testimony or producing documents—acts
necessarily performed by natural persons.
When a court orders a corporation to provide testimony under § 1782, the corporation
designates an appropriate representative to testify on its behalf. Similarly, when a
court orders a corporation to produce documents, individual employees locate, review,
and produce those documents. Nothing in the text of § 1782 suggests that federal
agencies should be treated differently in this regard.
Indeed, this Court's jurisprudence recognizes that entities—whether corporate or
governmental—can only act through natural persons. As the Court noted in Sachs v.
Republic of Austria, 577 U.S. 27, 34-35 (2015), "a principal acts through the actions of
its agents." This principle applies with equal force in the context of § 1782.
The D.C. Circuit's interpretation in Al Fayed artificially separates the agency from its
representatives, creating a distinction without a difference. Whether the court orders
an agency to produce documents or orders an agency official to produce documents in
his official capacity, the practical result is the same: agency records are produced
through the actions of agency personnel.
This Court should grant certiorari to clarify that § 1782 permits courts to order federal
agencies to produce evidence through their representatives, just as courts routinely
order corporate entities to do the same. Without this clarification, federal agencies will
continue to enjoy an unjustified exemption from the statute's reach, undermining its
effectiveness as a tool for international judicial cooperation.
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XII. THE LEGISLATIVE HISTORY SUPPORTS A BROADER READING OF § 1782
AS SERVING CITIZEN INTERESTS RATHER THAN STATE SECRECY
This Court should grant certiorari because the legislative history of § 1782 supports a
broader reading of the statute that includes federal agencies within its reach. Congress
enacted § 1782 as part of a broader effort to improve international judicial cooperation
and to provide assistance to foreign tribunals and litigants seeking evidence in the
United States.
The 1964 amendments to § 1782, which established the current framework, were
designed to "clarify and liberalize existing U.S. procedures for assisting foreign and
international tribunals and litigants in obtaining oral and documentary evidence in the
United States." The amendments reflected a congressional judgment that U.S. courts
should provide broad assistance to foreign tribunals and litigants, with few limitations
or exceptions.
Nothing in the legislative history suggests that Congress intended to exclude federal
agencies from the statute's reach. Indeed, such an exclusion would be inconsistent with
the statute's purpose of providing comprehensive assistance to foreign tribunals and
litigants. As this Court noted in NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242
(1978), "the basic purpose of FOIA is to ensure an informed citizenry, vital to the
functioning of a democratic society." Similarly, the basic purpose of § 1782 is to ensure
that foreign tribunals have access to the evidence necessary to render just decisions—a
purpose that would be undermined by excluding federal agencies from its reach.
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The D.C. Circuit's interpretation in Al Fayed privileges government secrecy over this
congressional policy favoring transparency and international cooperation. This result
cannot be reconciled with the statute's purpose or legislative history, both of which
support a reading that includes federal agencies within the statute's reach.
This Court should grant certiorari to ensure that § 1782 is interpreted in a manner
consistent with its purpose and legislative history, rather than in a manner that
arbitrarily limits its reach based on distinctions not found in the statutory text.
Without this Court's intervention, the statute will continue to operate in a way that
undermines its fundamental purpose.
XIII. THE DENIAL OF EVIDENCE PRESERVATION ORDERS VIOLATES
AMERICAN CITIZENS' CONSTITUTIONAL DUE PROCESS RIGHTS
This Court should grant certiorari because the D.C. Circuit's interpretation of § 1782 in
Al Fayed effectively denies American citizens their constitutional right to due process
when seeking evidence for use in foreign proceedings. The Fifth Amendment
guarantees that no person shall be "deprived of life, liberty, or property, without due
process of law." Due process fundamentally requires that parties have a meaningful
opportunity to present their cases, including access to relevant evidence.
The present case illustrates this constitutional concern with particular clarity.
Petitioner is actively litigating substantial claims in the Ontario Divisional Court (File
No. DC-25-00002976, transferred from Ontario Superior Court case cv-0097442)
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alleging violations of his rights under the Canadian Charter of Rights and Freedoms.
The Canadian case specifically alleges information sharing between Canadian
authorities and U.S. government agencies without proper authorization. Evidence in
possession of the CIA regarding such information sharing would be directly relevant to
these claims, which seek both injunctive relief and damages exceeding $13 million CAD.
However, due to the D.C. Circuit's interpretation of § 1782 in Al Fayed, Petitioner has
been categorically denied the ability to preserve this potentially crucial evidence—
evidence that may be destroyed before it can be requested through FOIA or other
mechanisms. This denial substantially impairs Petitioner's ability to present his case
effectively in the Canadian proceedings, undermining his constitutional right to due
process.
This Court has consistently recognized that access to evidence is a critical component of
due process. As the Court noted in Mathews v. Eldridge, 424 U.S. 319, 333 (1976), "the
fundamental requirement of due process is the opportunity to be heard at a meaningful
time and in a meaningful manner." A meaningful opportunity to be heard necessarily
includes access to relevant evidence that might support one's claims or defenses.
Similarly, in Goldberg v. Kelly, 397 U.S. 254, 267-68 (1970), this Court held that due
process requires that a party have "ah effective opportunity to defend by confronting
any adverse witnesses and by presenting his own arguments and evidence orally." And
in Morrissey v. Brewer, 408 U.S. 471, 489 (1972), the Court emphasized that due
process includes "the right to present evidence and confront adverse witnesses."
34
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When an American citizen is involved in a proceeding in a foreign tribunal and seeks
evidence located within the United States, § 1782 provides the primary mechanism for
obtaining that evidence. By excluding federal agencies from the statute's reach, the D.C.
Circuit's interpretation in Al Fayed effectively denies American citizens access to
potentially crucial evidence held by those agencies, undermining their right to a
meaningful opportunity to be heard in foreign proceedings.
This problem is particularly acute in the context of evidence preservation. As this Court
recognized in Armstrong v. Executive Office of the President, 1 F.3d 1274, 1282 (D.C.
Cir. 1993), federal agencies have statutory obligations under the Federal Records Act,
44 U.S.C. § 3301 et seq., to preserve certain records. However, without a § 1782
preservation order, agencies retain discretion over which records to preserve and for
how long. This discretion creates a risk that important evidence might be destroyed
before it can be requested through FOIA or other mechanisms.
The denial of evidence preservation orders under § 1782 thus creates a significant risk
that American citizens will be unable to obtain evidence necessary to support their
claims or defenses in foreign proceedings. This result effectively denies them the
"meaningful opportunity to be heard" that due process requires. As this Court noted in
Logan v. Zimmerman Brush Co., 455 U.S. 422, 429 (1982), "the Due Process Clause
grants the aggrieved party the opportunity to present his case and have its merits
fairly judged."
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This Court should grant certiorari to ensure that § 1782 is interpreted in a manner
consistent with the constitutional guarantee of due process, rather than in a manner
that arbitrarily limits American citizens' access to evidence based on whether that
evidence is held by a federal agency. Without this Court's intervention, American
citizens will continue to face arbitrary barriers to obtaining evidence necessary to
support their claims in foreign proceedings, undermining their constitutional right to
due process.
XIV. THIS CASE PRESENTS AN IDEAL VEHICLE TO RESOLVE THESE
IMPORTANT QUESTIONS
This Court should grant certiorari because this case presents an ideal vehicle for
resolving the important questions presented. The case presents clean legal issues that
were fully briefed in the courts below and directly implicate fundamental questions of
constitutional rights and statutory interpretation.
First, with respect to the mootness issue, the case presents a clear question of whether
and when courts can dismiss compensatory damages claims as moot based on the
mootness of related injunctive relief claims. The D.C. Circuit's summary disposition
provides this Court with an opportunity to clarify the proper application of mootness
doctrine to damages claims arising from past constitutional violations.
Second, with respect to the § 1782 issue, the case directly raises the question of
whether federal agencies can be ordered to preserve and produce evidence through
their representatives for use in foreign proceedings. The active, ongoing litigation in
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the Ontario Divisional Court (File No. DC-25-00002976) provides a concrete, practical
context that demonstrates the real-world significance of this legal question. The specific
allegations in the Canadian case regarding information sharing between Canadian
authorities and U.S. government agencies make the evidence Petitioner sought to
preserve particularly relevant to those proceedings.
The D.C. Circuit's reliance on Al Fayed presents this Court with an opportunity to
review a precedent that has significant implications for international judicial
cooperation and American citizens' access to evidence. The fact that Petitioner is
concurrently litigating parallel claims in both U.S. and Canadian courts, with
allegations that involve potential information sharing between agencies of both
countries, makes this case particularly suitable for addressing the reach of § 1782.
Moreover, the specific context of this case—involving claims that raise serious concerns
of potentially defamatory statements by government lawyers in both the U.S. and
Canada, statements which by their nature cannot both be true—highlights the
importance of evidence preservation orders in cases involving cross-border allegations
and defenses.
Both questions presented are of substantial importance and warrant this Court's
review. The first question implicates fundamental constitutional rights of citizenship
and the availability of remedies for temporary deprivations of those rights. The second
question affects American citizens' ability to obtain evidence for use in foreign
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proceedings and implicates important principles of international comity and judicial
cooperation.
CONCLUSION
For the foregoing reasons, this petition for a writ of certiorari should be granted.
Respectfully submitted,
Allan Douglas Wilson
1321 Upland Drive,
STE 21311
Houston, Texas 77043
Tel: (502) 403-2378
Date: May 07, 2025
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.