Case 1:19-cv-02090-EGS Document 78-1 Filed 09/11/20 Page 1 of 43

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MOHAMMED SABRA, as next friend of

Baby M.,

Plaintiff,

v. Civil Action No. 19-2090 (EGS)

MICHAEL POMPEO, in his official capacity

as Secretary of the United States Department
of State,

Defendant.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S

COMBINED [1] MOTION TO DISMISS IN PART PLAINTIFF’S AMENDED
COMPLAINT, [2] MOTION FOR RECONSIDERATION, AND
[3] RENEWED MOTION FOR SUMMARY JUDGMENT
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TABLE OF CONTENTS

Table of Authorities………………………………………………………………………………iii

INTRODUCTION………………………………………………………………………………...1

BACKGROUND………………………………………………………………………………….3

A. Statutory Framework……………………………………………………………...3

B. The Department’s Denial of Baby M.’s ACBA and Passport

Applications……………………………………………………………………….5

LEGAL STANDARDS………………………………………………………………………….15

A. Dismissal Pursuant to Rule 12(b)(6)……………………………………………..15

B. Reconsideration Pursuant to Rule 54(b)…………………………………………15

C. Summary Judgment Pursuant to Rule 56………………………………………...16

ARGUMENT…………………………………………………………………………………….17

I. Plaintiff’s APA Claim Should be Dismissed for Failure to State a Claim………………...17

A. Plaintiff’s APA claim is barred because the INA provides an adequate

alternate remedy………………………………………………………………….17

B. The Court’s prior ruling is inconsistent with a finding that the Department
of State acted arbitrarily and capriciously in denying Baby M.’s Consular
Report and passport applications………………………………………………...23

II. The Court Should Reconsider its Determination that Plaintiff Met His Initial Burden
on his RFRA Claim Because the Department’s Conduct Did Not Impose a
Substantial Burden on Plaintiff’s Religious Exercise…………………………………….26

III. Defendant is Entitled to Summary Judgment on Plaintiff’s RFRA Claim

Because the Department’s Request for Additional Evidence Furthered
Compelling Government Interests and Did so Through the Least Restrictive Means…….28

A. The Department’s CRBA and passport application processes serve

compelling governmental interests……………………………………………….29

B. The Department’s request for additional evidence was the least restrictive
means of accomplishing its compelling interests in this case……………………..34

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CONCLUSION…………………………………………………………………………………..37

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TABLE OF AUTHORITIES

Page(s)

Cases

Ali v. Carnegie Inst. of Wash.,

309 F.R.D. 77 (D.D.C. 2015).............................................................................................. 16, 26
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) ............................................................................................................ 16, 17
Atherton v. D.C. Office of Mayor,
567 F.3d 672 (D.C. Cir. 2009) .................................................................................................. 15
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) .................................................................................................................. 15
Bowen v. Massachusetts,
487 U.S. 879 (1988) .................................................................................................................. 18
Bryant v. Gomez,
46 F.3d 948 (9th Cir. 1995) ...................................................................................................... 28
Califano v. Sanders,
430 U.S. 99 (1977) .................................................................................................................... 23
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) ............................................................................................................ 16, 17
Chacoty v. Pompeo,
392 F. Supp. 3d 1 (D.D.C. 2019) ........................................................................................ 20, 22
Citizens for Responsibility & Ethics in Wash. (“CREW”) v. Dep’t of Justice,
846 F.3d 1235 (D.C. Cir. 2017) .......................................................................................... 18, 20
Cobell v. Norton,
224 F.R.D. 266 (D.D.C. 2004)............................................................................................ 15, 16
Conley v. Gibson,
355 U.S. 41 (1957) .................................................................................................................... 15
Czekalski v. Peters,
475 F.3d 360 (D.C. Cir. 2007) .................................................................................................. 17
Dep’t of Army v. Blue Fox, Inc.,
525 U.S. 255 (1999) .................................................................................................................. 23
El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. Dep’t of Health & Human Servs.,
396 F.3d 1265 (D.C. Cir. 2005) ................................................................................................ 18
Flores v. Pompeo,
936 F.3d 273 (5th Cir. 2019) .................................................................................................... 19
Fornaro v. James,
416 F.3d 63 (D.C. Cir. 2005) .................................................................................................... 23
Garcia v. Vilsack,
563 F.3d 519 (D.C. Cir. 2009) ............................................................................................ 18, 20
Gonzalez Boisson v. Pompeo, Civ. A. No. 19-2105 (JDB),
2020 WL 20438889 (D.D.C. Apr. 28, 2020) ............................................................................ 20
Greene v. Dalton,
164 F.3d 671 (D.C. Cir. 1999) .................................................................................................. 17

iii
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Hassan v. Holder,
793 F. Supp. 2d 440 (D.D.C. 2011) .......................................................................................... 19
Henderson v. Kennedy,
253 F.3d 12 (D.C. Cir. 2001) .................................................................................................... 28
Hinojosa v. Horn,
896 F.3d 305 (5th Cir. 2018) .............................................................................................. 19, 20
Jones v. Williams,
791 F.3d 1023 (9th Cir. 2015) .................................................................................................. 28
Kaemmerling v. Lappin,
553 F.3d 669 (D.C. Cir. 2008) .................................................................................................. 27
LaShawn A. v. Barry,
87 F.3d 1389 (D.C. Cir. 1996) .................................................................................................. 25
Lewis v. District of Columbia,
736 F. Supp. 2d 98 (D.D.C. 2010) ............................................................................................ 16
Lucas v. District of Columbia,
214 F. Supp. 3d 1 (D.D.C. 2016) .............................................................................................. 16
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574 (1986) .................................................................................................................. 17
Miller v. Albright,
523 U.S. 420 (1998) ................................................................................................................ 3, 4
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, (1983) ................................................................................................................... 24
Murphy v. Exec. Off. for U.S. Attorneys,
11 F. Supp. 3d 7 (D.D.C. 2014) .......................................................................................... 15, 16
Nat'l Wrestling Coaches Ass’n v. Dep’t of Educ.,
366 F.3d 930 (D.C. Cir. 2004) .................................................................................................. 23
Perry Capital LLC v. Mnuchin,
864 F.3d 591 (D.C. Cir. 2017) .................................................................................................. 18
Rusk v. Cort,
369 U.S. 367 (1962) ...................................................................................................... 20, 21, 22
Sample v. Lappin,
424 F. Supp. 2d 187 (D.D.C. 2006) .......................................................................................... 29
Transohio Sav. Bank v. Dir., Office of Thrift Supervision,
967 F.2d 598 (D.C. Cir. 1992) .................................................................................................. 23
United States v. Wong Kim Ark,
169 U.S. 649 (1898) .................................................................................................................... 3
Weir v. Nix,
114 F.3d 817 (8th Cir. 1997) .................................................................................................... 28
Wisconsin v. Yoder,
406 U.S. 205, (1972) ................................................................................................................. 29
Xia v. Tillerson,
865 F.3d 643 (D.C. Cir. 2017) ........................................................................................... passim

Statutes

5 U.S.C. § 701 ................................................................................................................................. 1

5 U.S.C. § 702 ............................................................................................................................... 18

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5 U.S.C. § 704 ................................................................................................................... 18, 22, 23

5 U.S.C. § 706 ............................................................................................................................... 18
5 U.S.C. § 706(2)(A)..................................................................................................................... 24
8 U.S.C. § 1104(a) .......................................................................................................................... 4
8 U.S.C. § 1401(c) .......................................................................................................................... 3
8 U.S.C. § 1401(g) .......................................................................................................................... 3
8 U.S.C. § 1503 ......................................................................................................................... 4, 17
8 U.S.C. § 1503(a) .......................................................................................................................... 5
8 U.S.C. § 1503(b) .............................................................................................................. 5, 19, 22
8 U.S.C. § 1503(c) .................................................................................................................... 5, 19

Rules

Fed. R. Civ. P. 12(b)(6)................................................................................................................. 15

Fed. R. Civ. P. 54(b) ..................................................................................................................... 15
Fed. R. Civ. P. 56 .................................................................................................................... 16, 17

Regulations

22 C.F.R. Part 51............................................................................................................................. 4

22 C.F.R. § 50.1(d) (2009).............................................................................................................. 4
22 C.F.R. § 50.11 ............................................................................................................................ 5
22 C.F.R. § 50.2 .............................................................................................................................. 4
22 C.F.R. § 51.28 ............................................................................................................................ 7

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INTRODUCTION

Plaintiff Mohammed Sabra, on behalf of his infant daughter, Baby M., seeks an order

declaring that Baby M. is the biological child of U.S. citizens Mr. and Ms. Sabra, and thus eligible

for United States citizenship and entitled to the rights and privileges of U.S. citizenship by birth.

But this Court has already determined that Mr. Sabra “has failed to provide satisfactory proof of

Baby M.’s birth, identity, and citizenship to establish her entitlement to a [Consular Report of Birth

Abroad] and passport under the applicable statutes and regulations.” ECF No. 59 (“Mem. Op.”)

at 30.

Now, Plaintiff has amended his complaint to seek, for the first time, relief under the

Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., arguing that Defendant’s denials

of Plaintiff’s applications for a Consular Report of Birth Abroad (“CRBA”) and passport for

Baby M. were arbitrary and capricious. This claim should not advance past the pleading stage for

two reasons.

First, Plaintiff fails to state a claim upon which relief may be granted because the

Immigration and Nationality Act (“INA”) provides an adequate other remedy in the form of

specific procedures—culminating in judicial review—for Baby M. to try to establish her

citizenship. Because there exists an adequate, alternative remedy to the relief sought through the

APA, Plaintiff may not proceed under the APA, and must challenge the Department of State’s

decisions under the appropriate review provision of the INA.

Second, the Court has already determined that the record before the Embassy and the Court

contained numerous “inconsistencies that support the Embassy’s final decision that Mr. and Mrs.

Sabra’s submissions are insufficient proof of Baby M.’s birth, identity, and citizenship,” Mem.

Op. at 68-71, and that “Mr. Sabra has failed to provide sufficient documentation as proof of Baby

M.’s birth, identity and citizenship, as required by the applicable statutes and regulations.” Mem.
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Op. at 70. Plaintiff has not moved for reconsideration of the Court’s ruling, and yet now seeks

essentially to relitigate this same issue, under a standard (arbitrary and capricious review) that is

even more deferential to the government. The Court’s earlier ruling would be wholly inconsistent

with a finding that Defendant’s denials of the CRBA and passport applications were arbitrary and

capricious. The Court should therefore adopt its prior reasoning and, in the interest of judicial

economy, should dismiss Plaintiff’s APA claim for failure to state a claim or, in the alternative,

grant summary judgment to Defendant based on the record already before the Court on the parties’

first cross motions for summary judgment in this case.

Plaintiff also claims that the State Department’s failure to issue a passport and CRBA

constitutes a violation of Plaintiff’s rights to free exercise of religion under the Religious Freedom

Restoration Act (“RFRA”). The Court has previously found that Plaintiff met his initial burden to

establish a prima facie violation under RFRA. Mem. Op. at 71-86. Defendant, however,

respectfully moves for reconsideration of this decision. As a matter of law, Defendant’s request

that Plaintiff provide additional evidence in support of Baby M.’s identity and the Sabra’s

relationship to Baby M—which could include, but was not required to include, photos of Ms.

Sabra pregnant or a DNA test—did not place a substantial burden on Plaintiff’s religious exercise.

In the alternative, even if the Court denies Defendant’s request for reconsideration and

maintains its finding that the Department has imposed a substantial burden on Plaintiff’s religion,

Defendant is still entitled to summary judgment in its favor regarding Plaintiff’s RFRA claim. The

Department’s CRBA and passport application processes serve compelling governmental interests

in: (1) ensuring that U.S. citizenship documentation is obtained only by those entitled to it, and

(2) defending against international child abduction, illegal adoption, and child trafficking efforts.

The Department’s processes are the least restrictive means of accomplishing those interests—it

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requested any evidence that the Sabra’s could provide to establish their relationship with Baby M.

Indeed, there is no less restrictive means possible.

In support of this motion, Defendant provides the attached declaration of Paul Peek,

Director of the Office of Adjudication within the Passport Services Directorate of the U.S.

Department of State’s Bureau of Consular Affairs.

BACKGROUND

A. Statutory Framework.

There are “two sources of [United States] citizenship, and two only: birth and

naturalization.” United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898). The Fourteenth

Amendment to the United States Constitution declares that “all persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are citizens of the United States.” U.S. Const.

amend. XIV. Thus, persons who are born in the United States acquire citizenship by birth

automatically. Persons born outside of the United States, however, acquire citizenship by birth

only as provided by Acts of Congress. Wong Kim Ark, 169 U.S. at 703; see also Miller v. Albright,

523 U.S. 420, 424 (1998).

By statute, a person who is born abroad to married parents automatically becomes a

national and citizen of the United States if both parents are United States citizens and at least one

of the parents has had a residence in the United States or one of its outlying possessions prior to

the birth of such person. 8 U.S.C. § 1401(c). If one parent is not a United States citizen, however,

a person who is born abroad may still acquire United States citizenship if the other parent is a

United States citizen who has been physically present within the United States for a sufficient

length of time prior to the birth. See 8 U.S.C. § 1401(g). Congress has delegated the responsibility

for administering and enforcing the law relating to nationality to the Secretary of State, whose

authority extends to “the determination of nationality of a person not in the United States.” 8

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U.S.C. § 1104(a). A person’s “nationality” in this context is defined to mean citizenship. See 22

C.F.R. § 50.1(d) (2009) (defining “national” to mean “a citizen of the United States or a noncitizen

owing permanent allegiance to the United States”). Thus, the State Department is charged with

determining claims to United States citizenship of persons abroad when made through an

application for a CRBA or a passport. See id. at § 50.2.

Claims to United States citizenship for persons born abroad are made through an

application for registration or a passport or through an application for a CRBA. 22 C.F.R. § 50.2.

Determinations of citizenship may be made abroad by a consular officer or a designated nationality

examiner who may approve or disapprove an application for registration or for a passport. Id. A

CRBA may only be issued by a consular officer, depending on whether a nationality examiner has

given provisional approval, and such report will issue only if the consular officer is “satisfied that

the claim to nationality has been established.” Id. The applicant seeking a CRBA must submit

proof of the child’s birth, identity, and citizenship in compliance with the requirements set forth in

the regulations governing passports. See id. at § 50.5 (referencing 22 C.F.R. Part 51, Subpart C).

Under this section, the applicant has the burden of proving that he or she is a United States citizen.

See id. at § 51.40. The applicant must provide documentary evidence in support of a claim that he

or she is a United States citizen. Id. at § 51.41. A consular official “may issue” a CRBA only

upon application and the submission of “satisfactory proof of birth, identity and nationality[.]” Id.

at § 50.7(a).

Section 360(a) of the INA outlines the process by which individuals can receive judicial

review of the denial of “a right or privilege as a national of the United States” by a government

official, department, or independent agency, “upon the ground that he is not a national of the

United States.” 8 U.S.C. § 1503; see also Xia v. Tillerson, 865 F.3d 643, 655 (D.C. Cir. 2017)

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(“Section 1503 provides for judicial review of denial of any ‘right or privilege’ of citizenship,

including invalidations of passports or naturalization certificates.”). An aggrieved party seeking

to take advantage of Section 1503 must take one of two paths. If she is “within the United States,”

Section 1503(a) creates a cause of action allowing her to seek a declaration in court that she is “a

national of the United States.” 8 U.S.C. § 1503(a). Where, as here, the aggrieved party is “not

within the United States,” however, her starting point is Section 1503(b), which permits an

aggrieved party to apply for a “certificate of identity” from the U.S. diplomatic or consular officer

in the country in which she resides. 8 U.S.C. § 1503(b); see also 22 C.F.R. § 50.11.

If the Department grants the individual’s application for a certificate of identity, she may

then apply for admission to the United States at a port of entry, subject to “all the provisions . . .

relating to the conduct of proceedings involving aliens seeking admissions to the United States.”

8 U.S.C. § 1503(c). If she is admitted to the United States, she will then be “within the United

States” and may make a claim for citizenship pursuant to Section 1503(a). If she is not admitted

into the United States, she may seek a “final determination by the Attorney General” that is

“subject to review by any court of competent jurisdiction in habeas corpus proceedings and not

otherwise.” Id. Similarly, if the Department denies her application for a certificate of identity, she

can appeal that decision to the Secretary of State, 8 U.S.C. § 1503(b), and if the Secretary affirms

that denial and no other remedy is available, she may then seek review of that determination in

district court under the APA.

B. The Department’s Denial of Baby M.’s CRBA and Passport Applications.

On June 11, 2019, U.S. citizen Ponn Sabra (“Ms. Sabra”) telephoned the U.S. Embassy in

Jerusalem from Gaza and requested an emergency appointment to apply for a CRBA and U.S.

passport for an infant, Baby M., purportedly born in Gaza on 2019. ECF No. 18-3,

Declaration of Joshua Woda, Vice-Consul U.S. Embassy Jerusalem (August 6, 2019) (Sealed)

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(“Woda Decl.”) ¶ 6. Ms. Sabra claimed to be Baby M.’s biological mother and stated that the child

had serious health issues and required the requested passport to return to the United States for

medical treatment. Woda Decl. ¶ 7. Ms. Sabra also stated that she was 46 years old at the time of

the child’s birth. Woda Decl. ¶ 7.

Because 46 is an advanced age for the mother of a newborn, the Embassy—following its

routine practice and Department policy—asked Ms. Sabra whether she had documentary evidence,

such as prenatal medical records, to establish the child’s identity and Ms. Sabra’s claimed

biological relationship to the child. Woda Decl. ¶ 7. Ms. Sabra stated that she had no such records

as she did not receive any prenatal medical care. Woda Decl. ¶ 7. Because the Embassy was

already scheduled to visit the Erez border crossing between Gaza and Israel the next day, June 12,

2019, the Embassy agreed to accept the Sabras’ application in person on that date. Woda Decl.

¶ 7. 1

On June 12, 2019, Joshua Woda, Vice-Consul for U.S. Embassy Jerusalem, met Ms. Sabra

at the Erez border crossing to accept Ponn and Mohammad Sabra’s passport and CRBA application

for Baby M. and to perform an interview of Ms. Sabra. Woda Decl. ¶ 8. Along with the

application, Ms. Sabra provided Vice-Consul Woda with: (1) a birth certificate for Baby M. ,

issued by the Palestinian Authority on June 10, 2019; (2) copies of U.S. passports for Ponn and

1
Since 2007, Gaza has been under the de facto control of Hamas, a U.S. government-
designated Foreign Terrorist Organization (“FTO”). Woda Decl. ¶ 4. U.S. government employees
are prohibited from entering Gaza for personal or official purposes. Id. In addition, the State
Department has a long-standing Travel Advisory urging all U.S. citizens not to travel to Gaza. Id.
The State Department has extremely limited resources to assist U.S. citizens and confirm the
authenticity of documents issued by the local authorities in Gaza. Id. U.S. citizens residing in Gaza
are unable to travel to Jerusalem to apply for services without a permit issued by the Israeli
authorities. Id. Accordingly, a team from the American Citizens’ Services unit at U.S. Embassy
Jerusalem travels to the Erez border crossing between Gaza and Israel once every six months to
provide services to U.S. citizens, including taking passport and citizenship applications. Id.

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Decl. ¶ 10. This document is not a record of the child or mother’s “discharge” from a hospital.

Woda Decl. ¶ 10.

Ms. Sabra did not provide any medical documentation of pre or post-natal care, stated that

she did not receive any such care, and failed to provide any documentation supporting her

contention that she was pregnant and recently gave birth. Woda Decl. ¶ 10. She also provided no

documentation supporting her claim that Baby M. required immediate issuance of a U.S. passport.

Woda Decl. ¶ 10. Ms. Sabra could not explain how the child would be able to take a transatlantic

flight to the United States—which would first require overland travel to Amman, Jordan; Cairo,

Egypt; or Tel Aviv, Israel—when she was not well enough to appear for the interview at the Erez

crossing. Woda Decl. ¶ 10.

From Vice-Consul Woda’s training and experience, his review of the documentation

submitted, and his interview of Ms. Sabra, he identified several factors that caused him to doubt

whether the claimed biological relationship between Ms. Sabra and Baby M. existed. Woda Decl.

¶ 11. Because pre- and post-natal medical care in Gaza is widely available, Vice-Consul Woda

found it suspicious that Ms. Sabra could provide no evidence of any such care. Woda Decl. ¶ 10.

Additionally, Vice-Consul Woda found it unusual that Baby M.’s birth certificate stated that she

was born in a private clinic, because almost all children in Gaza are born in hospitals. Woda Decl.

¶ 10. Finally, Vice-Consul Woda found it unusual that, although Ms. Sabra requested emergency

issuance of a passport while citing a need for emergency medical treatment in the United States,

she presented essentially no evidence of the claimed urgent medical needs and appeared to have

no plan for the child’s travel and treatment. Woda Decl. ¶ 10.

At the conclusion of Vice-Consul Woda’s interview with Ms. Sabra, he informed her that

he was unable to approve the application without additional evidence of her claimed biological

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relationship to Baby M. Woda Decl. ¶ 12. He explained to Ms. Sabra that such evidence could

include, but was not limited to, among other things, pre- and post-natal medical records,

ultrasounds, and/or photographs of Ms. Sabra during her pregnancy. Woda Decl. ¶ 12. Vice-

Consul Woda requested this additional evidence because he determined that the Sabras had not

met their burden of proof based on Ms. Sabra’s responses during her interview and the documents

provided, all of which raised concerns that Ms. Sabra was not Baby M.’s biological mother, as she

claimed to be. Woda Decl. ¶ 12.

Ms. Sabra informed Vice-Consul Woda that she did not have, or would not produce, the

additional evidence requested. Woda Decl. ¶ 13. Vice-Consul Woda then suggested that she could

consider providing a DNA analysis establishing a mother-child relationship. Woda Decl. ¶ 13.

Ms. Sabra objected to the processing time that DNA testing could take but did not raise any

religious objections. Woda Decl. ¶ 14.

Vice-Consul Woda also advised Ms. Sabra that the photocopied power of attorney

document signed by Mohammed Sabra four years earlier in 2015 was insufficient to meet the

requirement that both parents consent to issuance of a passport to a minor. Woda Decl. ¶ 13.

On June 21, 2019, Mohammad Sabra emailed the Embassy copies of documents purporting

to show that Ms. Sabra received in the United States from February to May

2018. Woda Decl. ¶ 15; Compl. Exhibits B, G. Vice-Consul Woda reviewed these materials and

determined that, even if they were genuine and credible medical records, they did not demonstrate

that Ms. Sabra had been pregnant and given birth to Baby M. because they were dated at least 12

months before Baby M.’s birth. Woda Decl. ¶ 15. Vice-Consul Woda responded to the Sabras’

email the same day, again suggesting that the family submit pre- and post-natal medical records,

ultrasounds, photographs of Ms. Sabra during the pregnancy, or any other evidence that could

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substantiate the claimed biological relationship—the parental relationship that Ms. Sabra claimed

to have with Baby M. 3 Woda Decl. ¶ 15. Vice-Consul Woda reiterated that DNA testing was a

viable alternative for resolving the application. Woda Decl. ¶ 15.

On June 25, 2019, after several unsuccessful attempts to reach Ms. Sabra by phone, the

Embassy emailed the Sabras and offered to assist in obtaining a permit from the Israeli authorities

so that Baby M. could be transferred to the nearest qualified hospital in Israel for any urgent

medical treatment. Woda Decl. ¶ 16; Compl. Exhibit G. The Sabras never accepted this offer

despite the purportedly urgent medical condition of Baby M. Woda Decl. ¶ 16.

Also on June 25, 2019, the Embassy received a statement from legal counsel for the Sabras,

threatening litigation and demanding immediate issuance of a passport to Baby M. Woda Decl.

¶ 17. The statement did not include any new evidence. Id. The Embassy responded to the Sabra’s

legal counsel on June 28, 2019, again requesting evidence supporting the application and

reiterating the Embassy’s offer to assist in obtaining a permit from the Israeli authorities. Woda

Decl. ¶ 17; Compl. Exhibit H.

On June 28, 2019, counsel for the Sabras emailed the Embassy a declaration from a Dr.

from Al Shifa hospital in Gaza regarding Baby M.’s medical condition. Woda

Decl. ¶ 18; Compl. Exhibit A. The declaration, dated June 25, 2019, was written in technical,

legalistic English and referenced portions of the U.S. Code. Woda Decl. ¶ 18. The declaration

did not contain any indication that it was originally written in Arabic or that the declarant had it

translated for him. Woda Decl. ¶ 18.

3
Whether a biological parental relationship is always required to establish parentage under
the statute at issue is not germane to this action. Ms. Sabra claims she is the biological mother of
Baby M., not that she enjoys some other non-biological form of parentage. As such, Ms. Sabra’s
status as Baby M.’s parent rises and falls with her biological relationship to Baby M. as that is the
relationship she claims to have with her.

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On July 1, 2019, Vice-Consul Woda called Al Shifa hospital in Gaza to verify the

information in Dr. ’s declaration, to discuss the circumstances of Baby M.’s birth, and to

discuss Baby M.’s medical condition. Woda Decl. ¶ 19. Because counsel for the Sabras did not

provide contact information for Dr. , Vice-Consul Woda located a phone number for Al

Shifa hospital via an internet search, and the hospital provided Vice-Consul Woda with Dr.

’s personal phone number. Woda Decl. ¶ 19.

That same day, Vice-Consul Woda called Dr. . Woda Decl. ¶ 20. Also

participating in the call was a locally employed Embassy staff supervisor, Majed Rizek, who is a

native speaker of the Palestinian/Levantine dialect. Woda Decl. ¶ 20. Although Vice-Consul

Woda is fully professionally proficient in Arabic (including the Leventine/Palestinian dialect), he

requested Majed Rizek’s participation because the conversation was likely to include medical and

other technical vocabulary. Woda Decl. ¶ 20. At the beginning of the call, Dr. , stated,

in Arabic, that he did not speak English. Woda Decl. ¶ 20. For clarity, Vice-Consul Woda

proceeded to ask questions in English, which Mr. Rizek translated into Arabic. Woda Decl. ¶ 20.

For consistency, Mr. Rizek also translated Dr. ’s responses to English, although Vice-

Consul Woda also understood the Arabic responses. Woda Decl. ¶ 20.

During the July 1, 2019, call, Dr. stated that he is a neighbor of Ms. Sabra in

Gaza. Woda Decl. ¶ 21. He recounted that he received a call asking him to come to Ms. Sabra’s

home as she was in labor and in need of assistance. Woda Decl. ¶ 21. He stated that he arrived

at Ms. Sabra’s home after the child had been born and advised that the child be taken to Al Shifa

hospital for care. Woda Decl. ¶ 21. Vice-Consul Woda asked Dr. to repeat his

understanding of where Baby M. was born, and he again stated that he believed she was born at

Ms. Sabra’s home, but that he did not witness her birth. Woda Decl. ¶ 21. Vice-Consul Woda

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found this response noteworthy, as it contradicted Ms. Sabra’s repeated statements and

documentation claiming that Baby M. was born in a private medical clinic. Woda Decl. ¶ 21.

Vice-Consul Woda asked Dr. about Baby M.’s medical care and her current

prognosis. Woda Decl. ¶ 22. Dr. stated that he is not involved with Baby M.’s medical

care, that he had not seen her or Ms. Sabra since the day he was called to her home, and that he

could not comment on Baby M.’s current medical condition. Woda Decl. ¶ 22. Aside from

prescribing antibiotics, he did not provide any pre- or post-natal care to Ms. Sabra. Woda Decl.

¶ 22. He further stated that he did not believe that Baby M. was receiving in-patient medical care

at Al Shifa hospital and that he did not have any medical records for Baby M. Woda Decl. ¶ 22.

This information flatly contradicted the contents of the English-language declaration submitted by

Plaintiff’s counsel and allegedly signed by Dr. . See Compl. Exhibit A. Vice-Consul

Woda thanked Dr. for speaking with the Embassy and asked that Dr. contact

the Embassy if he had any additional information to share of if he needed assistance regarding

Baby M. Woda Decl. ¶ 23. Dr. never contacted the Embassy. Woda Decl. ¶ 23.

From his conversation with Dr. , Vice-Consul Woda determined that the

declaration provided by counsel for the Sabras was not credible. Woda Decl. ¶ 24. Rather than

resolving questions about the circumstances of Baby M.’s birth and her medical condition, the

declaration and interview of Dr. raised additional concerns regarding the veracity of the

statements made in the Sabras’ application. Woda Decl. ¶ 24.

On July 15, 2019—before the Embassy had made a final decision with respect to Baby

M.’s CRBA and passport applications—Plaintiff filed the instant lawsuit seeking declaratory,

injunctive, and mandamus relief. ECF. No. 1, Compl. Two and a half weeks later, on August 1,

2019, Plaintiff filed an Emergency Motion to Expedite Consideration of the Complaint for

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Declaratory, Injunctive, and Mandamus Relief. ECF. No. 12. The parties agreed to an expedited

summary judgment briefing schedule. ECF. No. 14.

During this litigation, and while the Sabras’ applications were still pending a final decision,

the Sabras submitted declarations from several family members and a statement of consent

regarding issuance of a passport to a minor signed by Mr. Sabra. See Am. Compl. Exs. H-J; ECF

No. 51 ¶ 2. The consular officer evaluated all submitted documents. See Declaration of Paul Peek

(Aug. 17, 2020) (“Peek Decl.”) ¶ 26 (“The adjudicating officer reviewed and considered each

document submitted in support of Baby M.’s application.”).

The Sabras never provided medical documentation to substantiate their claim that an

emergency medical situation existed such that Baby M.’s in person appearance should be waived.

See Mem. Op. at 63 (“The Court cannot ignore that Mr. Sabra has failed to provide critical

information, specifically Baby M.’s written medical records to substantiate Baby M.’s birth and

health condition.”) The Sabras declined Defendant’s offer to coordinate a third party medical

examination. Id. (“Mr. and Mrs. Sabra declined the State Department’s invitation to enlist the

services of the medical doctor practicing in Gaza who has previously contracted with the Embassy

to perform a medical examination and issue a written report.”) The Sabras also declined an

opportunity to present Baby M. for an in person appearance at the Erez Crossing in November

2019, once the claimed medical emergency had allegedly resolved. ECF No. 51 ¶ 5.

Also during the litigation, Defendant clarified that DNA testing could be performed on

either Mr. Sabra or Ms. Sabra. See 9/4/2019 Hearing Tr. at 22 (“Where there are two United States

citizens who are claiming to be the biological parents of a child, either citizen parent can confer

citizenship to a child born overseas. So, it is not only Ms. Sabra’s DNA which could be used to

compare against the child, but also Mr. Sabra’s. I know plaintiff has represented that Ms. Sabra

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was absolutely unwilling to do DNA testing, and Mr. Sabra was hesitant, I believe is the word that

plaintiff’s counsel had used.”). Defendant also offered for a female consular officer to review Ms.

Sabra’s pregnancy photos, if there was a religious objection to have such photos reviewed by a

male consular officer. See 8/16/2019 Hearing Tr. at 54-55 (“one of the items of evidence that the

State Department suggested could be provided were photos of Mrs. Sabra while pregnant . . .

plaintiff has stated that there are such photos, but that she does not want to provide them, and that

that was a religious objection to providing those photos. The embassy is willing to have a female

consular officer review those photos.”). The Sabras ultimately chose not to submit DNA testing,

pregnancy photographs, or any further materials in support of Baby M.’s applications. See

generally Am. Compl.

After reviewing Mr. and Ms. Sabra’s submissions and the filings in this case in support of

the CRBA and passport applications, the Embassy made its final decision on October 22, 2019.

See Final Decision, ECF No. 55-1 at 2. The Embassy determined that Mr. Sabra failed to present

satisfactory proof of Baby M.’s birth, identity, and citizenship. See id.

Approximately five months after the Embassy’s final decision, the Court issued its ruling

on the parties’ cross motions for summary judgment. See generally Mem. Op. The Court denied

Plaintiffs’ motion in its entirety and granted Defendants motion with respect to all but Plaintiff’s

RFRA claim. Id.

On June 26, 2019, Plaintiff amended his complaint to include a claim that Defendant’s final

agency action was arbitrary and capricious in violation of the APA. See ECF No. 66, (“Am.

Compl.”) at Count 3. Defendant now moves for the dismissal of Plaintiff’s APA claim and

reconsideration of the Court’s earlier decision that Plaintiff had met his initial burden with respect

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to his RFRA claim. Defendant also renews his motion for summary judgment on Plaintiff’s RFRA

claim.

LEGAL STANDARDS

A. Dismissal Pursuant to Rule 12(b)(6)

A complaint must contain “a short and plain statement of the claim showing that the pleader

is entitled to relief,” Fed. R. Civ. P. (8)(a), which serves to “‘give the defendant fair notice of what

the . . . claim is and the grounds upon which it rests,’” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Rule 12(b)(6) provides a vehicle

for parties to challenge the sufficiency of a complaint on the ground that it “fail[s] to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When presented with a motion to

dismiss for failure to state a claim, the district court must accept as true the well-pleaded factual

allegations in the complaint. Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009).

Although “detailed factual allegations” are not necessary to withstand a motion to dismiss, a

plaintiff must provide the “grounds” of “entitle[ment] to relief,” which requires “more than labels

and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550

U.S. at 555.

B. Reconsideration Pursuant to Rule 54(b)

“Rule 54(b) governs reconsideration of interlocutory or non-final orders[.]” Murphy v.

Exec. Off. for U.S. Attorneys, 11 F. Supp. 3d 7, 8 (D.D.C. 2014), aff’d, 789 F.3d 204 (D.C. Cir.

2015); Cobell v. Norton, 224 F.R.D. 266, 271 (D.D.C. 2004) (“Rule 54(b) governs reconsideration

of orders that do not constitute final judgments in a case.”).

Rule 54(b) provides, in relevant part, “that any order or other decision, however designated,

that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties

does not end the action as to any of the claims or parties and may be revised at any time before the

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entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” Lucas v.

District of Columbia, 214 F. Supp. 3d 1, 5 (D.D.C. 2016) (citing Fed. R. Civ. P. 54(b)). A motion

for relief under Rule 54(b) is considered under the “as justice requires” standard. Murphy, 11 F.

Supp. 3d at 8. Such relief may be warranted when “the movant demonstrates: . . . an intervening

change in the law; . . . the discovery of new evidence not previously available; or . . . a clear error

in the first order[,]” id. or when the Court has “patently misunderstood the parties, made a decision

beyond the adversarial issues presented, [or] made an error in failing to consider controlling

decisions or data,” Ali v. Carnegie Inst. of Wash., 309 F.R.D. 77, 80 (D.D.C. 2015). “These

considerations leave a great deal of room for the court’s discretion and, accordingly, the ‘as justice

requires’ standard amounts to determining ‘whether [relief upon] reconsideration is necessary

under the relevant circumstances.’” Lewis v. District of Columbia, 736 F. Supp. 2d 98, 102

(D.D.C. 2010) (quoting Cobell, 224 F.R.D. at 272).

C. Summary Judgment Pursuant to Rule 56

Summary judgment is appropriate when the pleadings and evidence show “that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A “material fact” is one whose existence affects the outcome of the case.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine dispute” exists when the

non-movant produces sufficient evidence of a material fact so that a fact finder is required to

resolve the parties’ differing versions at trial. Id. at 249.

Summary judgment endeavors to streamline litigation by disposing of factually

unsupported claims or defenses and thereby determining whether trial is genuinely necessary. See

Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The movant bears the initial burden of

identifying portions of the record that demonstrate the absence of any genuine issue of material

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fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the non-movant must

point to specific facts in the record that reveal a genuine issue that is suitable for trial. See Celotex,

477 U.S. at 324; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 575 (1986)). A

moving party may therefore succeed on summary judgment by showing that the non-moving party

“fail[ed] to make a showing sufficient to establish the existence of an element essential to that

party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at

322. A moving party may also succeed by pointing to the absence of evidence proffered by the

nonmoving party. Id.

In considering a motion for summary judgment, a court must “eschew making credibility

determinations or weighing the evidence[,]” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir.

2007), and all underlying facts and inferences must be analyzed in the light most favorable to the

non-movant, see Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions offered without

any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d

671, 675 (D.C. Cir. 1999).

ARGUMENT

I. Plaintiff’s APA Claim Should be Dismissed for Failure to State a Claim

A. Plaintiff’s APA claim is barred because the INA provides an adequate

alternate remedy.

Plaintiff cannot state a claim under the APA because Congress expressly provided an

alternative adequate remedy under the INA for any person denied a right or privilege as a national

of the United States. See 8 U.S.C. § 1503. Because Plaintiff seeks review of the Department of

State’s denial of a right or privilege as a national of the United States—the denial of Baby M.’s

CRBA and passport applications—he must challenge the Department of State’s decision under the

applicable INA review provisions in the appropriate judicial district, and may not proceed in this

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Court under the APA. Accordingly, Plaintiff’s Complaint should be dismissed for failure to state

a claim upon which relief can be granted.

The APA provides a general cause of action to “person[s] suffering legal wrong because

of agency action, or adversely affected or aggrieved by agency action within the meaning of a

relevant statute,” 5 U.S.C. § 702, and provides that the reviewing court shall “hold unlawful and

set aside agency action” found to be “arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law[.]” 5 U.S.C. § 706. Judicial review under the APA is only available,

however, when “there is no other adequate remedy in a court[.]” 5 U.S.C. § 704. Indeed,

“Congress did not intend the general grant of review in the APA to duplicate existing procedures

for review of agency action.” Bowen v. Massachusetts, 487 U.S. 879, 903 (1988).

To be considered “adequate,” the alternative relief available need not provide an identical

review that the APA would provide, so long as the alternative remedy offers the “same genre” of

relief. Citizens for Responsibility & Ethics in Wash. (“CREW”) v. Dep’t of Justice, 846 F.3d 1235,

1245 (D.C. Cir. 2017) (quoting El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. Dep’t of

Health & Human Servs., 396 F.3d 1265, 1272 (D.C. Cir. 2005)). Alternative relief “will be deemed

adequate ‘where a statute affords an opportunity for de novo district-court review’ of the agency

action.” Garcia v. Vilsack, 563 F.3d 519, 522 (D.C. Cir. 2009) (quoting El Rio Santa Cruz, 396

F.3d at 1270). This is because “Congress did not intend to permit a litigant challenging an

administrative denial . . . to utilize simultaneously both [the review provision] and the APA.” El

Rio Santa Cruz, 396 F.3d at 1270 (internal citation and quotation marks omitted). Where an

adequate remedy is available, a plaintiff lacks a cause of action under the APA to challenge an

agency’s alleged error. See Perry Capital LLC v. Mnuchin, 864 F.3d 591, 621 (D.C. Cir. 2017)

(absence of an adequate alternative remedy is an element of the cause of action created by the

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APA).

The processes set forth at Section 1503(b) to (c) provide Plaintiff and Baby M. an adequate

remedy by which Baby M. can not only seek admission into the United States, but by which she

can ultimately obtain judicial review. Pursuant to those provisions, Baby M. may seek a certificate

of identity and, if she obtains one and is admitted, then she may come to the United States and

seek a judicial determination of her citizenship under Section 1503(a). Courts in this district and

elsewhere have recognized that Section 1503(a) provides plaintiffs an adequate avenue to assert

citizenship claims in the context of challenging a revoked passport. Hassan v. Holder, 793 F.

Supp. 2d 440 (D.D.C. 2011); see also Flores v. Pompeo, 936 F.3d 273, 277 (5th Cir. 2019).

But even in the event that Baby M. is not admitted into the United States after obtaining a

certificate of identity, she would still have an adequate remedy available to her because she could

seek review of any “final determination by the Attorney General that [she] is not entitled to

admission” in habeas proceedings. 8 U.S.C. § 1503(c). And even if the Department denied her

application for a certificate of identity, she could appeal that decision to the Secretary of State,

8 U.S.C. § 1503(b), and then, if the Secretary affirms the denial and no other remedy is available,

seek review of the Secretary’s determination in district court under the APA. In other words, all

roads lead to judicial review concerning Baby M.’s claim of citizenship. Section 1503(b) to (c)

therefore constitutes another adequate remedy and precludes APA review.

Considering a similar case, the Fifth Circuit held that the procedures in Section 1503(b)

to (c) constitute an adequate remedy for persons outside the United States to challenge a passport

revocation based on a finding that they are not citizens, which therefore precludes APA review.

See Hinojosa v. Horn, 896 F.3d 305, 312 (5th Cir. 2018) (“In sum, § 1503 expresses a clear

congressional intent to provide a specific procedure to review the Plaintiffs’ claims. Permitting a

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cause of action under the APA would provide a duplicative remedy, authorizing an end-run around

that process.”). Notably, in reaching this conclusion, the Fifth Circuit relied on case law from this

Circuit to determine what constitutes an “other adequate remedy.” See id. at 311 (citing Garcia,

563 F.3d at 523; CREW, 846 F.3d at 1245). The Fifth Circuit affirmed dismissal of the APA

claims. Id. at 312. Defendant urges this Court to reach the same result.

Defendant is aware that two other courts in this district have held that Section 1503(b) to

(c) does not constitute an adequate remedy to challenge the revocation of a document based on a

finding of noncitizenship: Chacoty v. Pompeo, 392 F. Supp. 3d 1 (D.D.C. 2019), and Gonzalez

Boisson v. Pompeo, Civ. A. No. 19-2105 (JDB), 2020 WL 20438889 (D.D.C. Apr. 28, 2020). 4 In

reaching their decisions, the Chacoty and Gonzalez Boisson courts both relied heavily on Rusk v.

Cort, 369 U.S. 367 (1962). But Cort does not control the result here for a number of reasons.

First, the circumstances that rendered the Section 1503(b) to (c) procedures inadequate for

Cort are not present here. This is plainly evident in how the Supreme Court framed the question

before it in Cort: whether “Congress intended that a native of this country living abroad must travel

thousands of miles, be arrested, and go to jail in order to attack an administrative finding that he

is not a citizen of the United States.” Id. This case presents very different circumstances: Baby

4
The D.C. Circuit’s decision in Xia v. Tillerson, 865 F.3d 643 (D.C. Cir. 2017), does not
conflict with the proposition that APA review is unavailable when an individual seeks to challenge
an agency’s denial of a right or privilege of citizenship on the ground that the individual is not a
U.S. citizen. Although the Xia court allowed the plaintiffs’ APA claim to proceed alongside
plaintiffs’ § 1503 claim, it did so in the context of an APA claim asserting that plaintiffs’ “passport
revocation was allegedly arbitrary because putatively based on an event that had yet to occur, and
allegedly contrary to law because accomplished without the requisite administrative hearing.”
865 F.3d at 657. This claim did not substantively challenge the agency’s determination that
plaintiffs were not U.S. citizens but rather challenged the procedures under which the revocation
took place. See id. Further, Xia did not specifically decide whether an adequate remedy existed
so as to preclude plaintiffs’ APA claims; it simply rejected the district court’s conclusion that
plaintiffs had failed to exhaust administrative remedies and remanded the claim for further
consideration. Id.

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M. has never set foot in this country, nor is she subject to arrest, nor would she face time in jail.

In Cort, the State Department never doubted that the plaintiff, who was born in Massachusetts in

1927, was a U.S. citizen at birth. Cort, 369 U.S. at 369. Cort registered for the Selective Service

in 1951 shortly before traveling to Europe, but, while in Europe, failed to report for the draft

board’s required physical examinations and for induction into the Armed Forces. Id.

Consequently, in 1954, while the plaintiff was still in Europe, he was charged in federal criminal

court with draft evasion. Id. He later applied from Europe to renew his expired passport and was

denied under then Section 349(a)(10) of the INA, which stated that U.S. citizens who stayed

outside of the country for the purpose of avoiding the draft would lose their citizenship. Id.

Cort sought review of his passport denial from abroad under the APA. In particular, he

sought to challenge the constitutionality of the statute that stripped native-born U.S. citizens of

their citizenship for draft evasion. Id. at 370. The government moved to dismiss the action on the

grounds that Section 1503(b) to(c) provided the exclusive procedure under which Cort could attack

the administrative determination that he was not a citizen. Id. The district court denied the motion,

finding that Section 1503(b) to (c) did not constitute the exclusive procedure under which Cort

could attack his loss of citizenship. Id. The district court later found that the statute upon which

the State Department stripped Cort of his citizenship was unconstitutional. Id.

The Supreme Court upheld the district court’s determination that Section 1503(b) to (c) did

not provide Cort the exclusive means of remedy. Id. at 375. In doing so, the Supreme Court

observed, that because Cort had been criminally charged with draft evasion, seeking admission

into the United States under Section 1503(b) to (c) would subject him to criminal detention and

prosecution, even if his challenge to the loss of his citizenship were successful. Id. Cort would

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have faced criminal detention and prosecution had he sought admission at the border, even if he

had prevailed in his separate citizenship claim. Baby M. has not alleged any similar concerns.

In addition, and most significantly, the crux of Cort’s claim was a constitutional challenge

to the statute under which the State Department revoked his citizenship for draft evasion. The

heart of Plaintiff and Baby M.’s claim, by contrast, is that Baby M. acquired U.S. citizenship at

birth via statute on account of her parents’ U.S. citizenship and presence in the United States prior

to her birth. This is precisely the type of factual dispute that the administrative procedures in §

1503(b)–(c) were designed to address. See 8 U.S.C. § 1503(b), (c); Cort, 369 U.S. at 391-96

(Harlan, J., dissenting) (explaining the legislative history of § 1503(b), (c)). Accordingly, the

reasoning in Cort is inapt to the situation at hand, and the Court should conclude that Section

1503(b) to (c) provides Plaintiff and Baby M. an adequate remedy precluding review under the

APA.

Second, Cort did not refer to the adequate-alternative-remedy exception in 5 U.S.C. § 704,

but to the separate provision in Section 703 requiring not only that an alternative be “adequate,”

but that it also be the “exclusive” opportunity for review provided by law. Id. at 371-72 (quoting

APA, § 10(b). It was this exclusivity requirement on which the Supreme Court targeted its

analysis, concluding that the use of the term “may” in Section 1503(b) to (c) did not indicate an

intention to establish an exclusive remedy. Id. at 375. The Chacoty and Gonzalez Boisson courts

found it convincing that Cort applied a “clear and convincing evidence” standard to determine

Congressional intent, which is the same standard used by this Circuit in evaluating whether there

is another adequate remedy. See, e.g., Chacoty, 392 F. Supp. 3d at 10. But Cort applied that

standard to a different question—exclusivity—than is relevant in the Section 704 context—

adequacy. The analysis in Cort is therefore not controlling.

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Finally, litigants can no longer cite the APA as an independent source of subject matter

jurisdiction, as Cort did. Califano v. Sanders, 430 U.S. 99, 106-07 (1977). Rather, the APA is

now construed solely as a limited waiver of sovereign immunity applying only where there is a

“final agency action for which there is no other adequate remedy in a court.” Id.; 5 U.S.C. § 704;

see also Fornaro v. James, 416 F.3d 63, 66 (D.C. Cir. 2005) (“The APA excludes from its waiver

of sovereign immunity . . . claims for which an adequate remedy is available elsewhere.”) (quoting

Transohio Sav. Bank v. Dir., Office of Thrift Supervision, 967 F.2d 598, 607 (D.C. Cir. 1992))

(alterations in original); Nat'l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 947 (D.C.

Cir. 2004) (“[T]he waiver of sovereign immunity under § 702 is limited by the ‘adequate remedy’

bar of § 704.”). As such, the Court must strictly construe the scope of Section 704 in favor of the

sovereign. Id.; Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999). With that understanding

in mind, Cort does not control the outcome of this case.

In sum, Baby M.’s path to judicial review lies under Section 1503(b) to (c), not the APA,

which requires as a first step that Baby M. apply to a diplomatic or consular officer of the United

States for a certificate of identity. Plaintiff and Baby M. have not taken this or any other step

required under Section 1503(b) to (c). Plaintiff’s APA claim is therefore barred and should be

dismissed.

B. The Court’s prior ruling is inconsistent with a finding that the Department of
State acted arbitrarily and capriciously in denying Baby M.’s CRBA and
passport applications.

Count 3 of Plaintiff’s Amended Complaint alleges that “Defendant’s Final Agency

Decision [i.e., the Embassy’s denial of Baby M.’s CRBA and passport applications] is Arbitrary

and Capricious in violation of the [APA].” This Court however, has already determined that the

record before the Embassy and the Court contained numerous “inconsistencies that support the

Embassy’s final decision that Mr. and Mrs. Sabra’s submissions are insufficient proof of Baby M’s

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birth, identity, and citizenship,” Mem. Op. at 68-71, and that “Mr. Sabra has failed to provide

sufficient documentation as proof of Baby M.’s birth, identity and citizenship, as required by the

applicable statutes and regulations.” Mem. Op. at 70. This prior ruling would be wholly

inconsistent with any finding that the Department acted arbitrarily or capriciously in denying Baby

M.’s applications. While the Court’s prior order is not a final order for purposes of claim or issue

preclusion analysis, in the interest of judicial economy this Court should nevertheless adopt its

own prior reasoning and dismiss Plaintiff’s APA claim for failure to state a claim or, in the

alternative grant summary judgment to Defendant on the basis of the record already before this

Court.

The APA provides that Courts “shall . . . hold unlawful and set aside agency action” that

is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C.

§ 706(2)(A), or “without observance of procedure required by law,” id. § 706(2)(D). The Supreme

Court has instructed that “the scope of review under the ‘arbitrary and capricious’ standard is

narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs.

Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, (1983). An action is not

arbitrary or capricious where the agency “articulate[s] a satisfactory explanation for its action

including a “rational connection between the facts found and the choice made” and the Court

“consider[s] whether the decision was based on a consideration of the relevant factors” and

determines that there has been no “clear error of judgment.” Id. (internal quotations omitted).

Here, in connection with the first round of summary judgment briefing on Plaintiff’s

Count 1, Defendant already articulated a “rational connection between the facts found,” during

Baby M.’s application process and the ultimate “choice made” to deny Baby M.’s applications.

Specifically, Defendant identified the Sabra’s refusal to present Baby M. in satisfaction of the in-

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person appearance requirement, the lack of evidence of Baby M.’s alleged emergency medical

condition, and the multiple indicia of fraud in the documents the Sabras submitted in connection

with the applications as the reasons supporting the agency’s decision. See Def’s Opp. to Pl’s Mot.

for Summary Judgment (Sealed), ECF No. 28 at 8-16; Def’s Reply in support of his Mot. for

Summary Judgment (Sealed), ECF No. 29 at 6-16. This Court examined the record submitted by

the Sabras and determined that there had been no “clear error of judgment” on the part of the

Embassy. On the contrary, the Court found that “Mr. Sabra has failed to provide critical

information, specifically Baby M.’s written medical records to substantiate Baby M.’s birth and

health condition,” and that “[t]he current record contains the following inconsistencies that support

the Embassy’s final decision that Mr. and Mrs. Sabra’s submissions are insufficient proof of Baby

M.’s birth, identity, and citizenship” which the Court went on to list over several pages. Mem.

Op. at 68-70. The Court concluded that “Mr. Sabra has failed to provide sufficient documentation

as proof of Baby M.’s birth, identity and citizenship, as required by the applicable statutes and

regulations,” Mem. Op. at 70, a holding that forecloses the possibility that the agency’s decision

to deny the applications was arbitrary and capricious.

Plaintiff has not asked this Court to reconsider its prior ruling. Instead, Plaintiff has sought

to relitigate the same issue under the guise of an APA claim. But a finding that the agency acted

arbitrarily and capriciously in denying Baby M.’s applications would be inconsistent with the

Court’s prior ruling. “Inconsistency is the antithesis of the rule of law. For judges, the most basic

principle of jurisprudence is that “‘[courts] must act alike in all cases of like nature.’” LaShawn A.

v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (quoting Ward v. James, [1966] 1 Q.B. 273, 294

(C.A.) ((quoting Lord Mansfield in John Wilkes’ case, Rex v. Wilkes, 98 Eng. Rep. 327, 335

(1770))). To avoid inconsistency and the unnecessary expenditure of judicial resources relitigating

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this issue, the Court should adopt its prior rationale and dismiss Plaintiff’s APA claim for failure

to state a claim. Alternatively, the Court should grant summary judgment to Defendant on the

record already before the Court.

II. The Court Should Reconsider its Determination that Plaintiff Met His Initial Burden
on his RFRA Claim Because the Department’s Conduct Did Not Impose a Substantial
Burden on Plaintiff’s Religious Exercise

With respect to Mr. Sabra’s assertion that the Embassy violated his rights to freely exercise

his religion under RFRA, this Court concluded that the Secretary imposed a substantial burden on

his religious beliefs. Mem. Op. at 79-87. While the Court correctly found that Vice-Consul Woda

suggested ways to establish Baby M.’s parentage that included a DNA test or photographs of Ms.

Sabra’s pregnancy, it incorrectly construed these two suggestions as requirements. Id. at 86.

Moreover, the Court did not take into account the government’s continued willingness to receive

any evidence of Baby M.’s birth or Ms. Sabra’s pregnancy. 8/16/19 Hearing Tr. at 70; 9/4/19

Hearing Tr. at 25. The government therefore asks the Court to reconsider its ruling pursuant to

Rule 54(b), find that Vice-Consul Woda did not require a DNA test or photographic proof, and

hold that the Secretary did not impose a substantial burden on Mr. Sabra’s religious beliefs.

As the government stated in its brief in support of its first motion for summary judgment,

the State Department “merely required Plaintiff to provide evidence of the parent-child

relationship without any pressure on the Plaintiff to change their behavior in violation of their

religion.” Def’s Mem., ECF No. 18-1 at 23. While the CRBA and passport applications were still

pending, the government also proffered that it would be willing to accept any evidence that

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Plaintiffs could offer in to establish the parental relationship. 5 And while the Court correctly

points out that the State Department may require DNA testing to establish a biological relationship

between a parent and claimed child, Mem. Op. at 86 (emphasis added), the record does not support

the conclusion that the State Department actually required DNA testing in this case or that this

guidance extends to photographic evidence. The State Department merely requested evidence.

Consequently, the Court should consider whether the request for any evidence imposes a

substantial burden on Plaintiff’s religious beliefs, and not whether Plaintiff would engage in

conduct prohibited by the Sabras’ religion if he provided DNA or photographic evidence. The

mere request for any evidence of parentage, including alternatives to DNA or photographic

evidence, arises to no more than “[a]n inconsequential or de minimis burden on religious practice.”

Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008). Plaintiff cannot be said to face

“substantial pressure” to provide DNA or photographic evidence if the government was willing to

receive alternative evidence.

5
The government stated its willingness to receive any other evidence of parentage on two
separate occasions:

[T]he other additional documents that were needed was proof of the relationship,
and those could be anything that would show that Mrs. Sabra was recently pregnant
and gave birth to Baby M. That could be the photos that we discussed, it could be
DNA, it could be anything else that they have that they can think of. It could be
declarations from other individuals. Any evidence would be taken into
consideration.

8/16/19 Tr. at 72-73 (emphasis added).

[I]f the plaintiff is willing, Mr. Sabra or Mrs. Sabra is willing to provide DNA, that
that evidence would be considered. And also, that is not the only evidence that the
embassy is willing to receive. Any evidence of pregnancy or birth is also still
available.
9/4/19 Tr. at 25 (emphasis added).

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The government is unaware of, and Plaintiff fails to cite, any authority supporting the

proposition that a substantial burden under RFRA exists even when the government provides

reasonable alternatives to actions that a religious adherent would find objectionable. To the

contrary, in Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001), the D.C. Circuit determined that

a ban on selling t-shirts on the National Mall did not preclude alternative means for adherents to

fulfill their religious obligations. 253 F.3d at 17 (noting that “mak[ing] religious motivation the

critical focus [reads] out of RFRA the condition that only substantial burdens on the exercise of

religion trigger the compelling interest requirement”); see also Weir v. Nix, 114 F.3d 817, 821-22

(8th Cir. 1997) (considering alternatives to determine whether burden was substantial); Bryant v.

Gomez, 46 F.3d 948, 949 (9th Cir. 1995) (no substantial burden where alternatives available),

superseded by statute, RFRA, as recognized in Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir. 1995);

cf. Jones v. Williams, 791 F.3d 1023, 1035 (9th Cir. 2015) (no substantial pressure to violate

religious beliefs when prisoner had alternatives). In this case, the government offered alternative

means by which Plaintiff could have established parentage, including declarations from other

individuals, without limiting the variety of evidence that would have been taken into consideration.

8/16/19 Tr. 72-73.

III. Defendant is Entitled to Summary Judgment on Plaintiff’s RFRA Claim Because the
Department’s Request for Additional Evidence Furthered Compelling Government
Interests and Did so Through the Least Restrictive Means

Even if Plaintiff had adequately pled a substantial burden, which he has not, the

Department would nonetheless be entitled to summary judgment with respect to Plaintiff’s RFRA

claim. Indeed, as established in the declaration of Paul Peek, a Consular Officer’s ability to request

additional evidence of identity or citizenship from CRBA and passport applicants is in furtherance

of compelling governmental interests and is the least restrictive means of furthering those interests.

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A. The Department’s CRBA and passport application processes serve compelling

governmental interests.

The United States has a compelling interest in ensuring that U.S. citizenship documentation

is obtained only by those entitled to it and in protecting the passport and CRBA application

processes against fraud. Peek Decl. ¶¶ 4, 20, 28. The United States also has a compelling

government interest in defending against international child abduction, illegal adoption, and child

trafficking. Peek Decl. ¶¶ 17-18, 21. These interests go to the heart of the country’s national

security, Peek Decl. ¶ 28, and are thus “interests of the highest order.” See Sample v. Lappin, 424

F. Supp. 2d 187, 195 (D.D.C. 2006) (quoting Wisconsin v. Yoder, 406 U.S. 205, 215, (1972)). The

Department of State’s CRBA and passport application processes, including Consular Officer’s

ability to request additional evidence, serve these compelling government interests.

Passports are travel documents attesting to the bearer’s identity and nationality. Peek Decl.

¶ 4. As such, in addition to applicable laws and regulations, the Department has policies and

procedures for adjudicating each applicant’s identity, identifying and preventing fraud, and

ensuring the applicant is otherwise entitled to a U.S. passport. Peek Decl. ¶ 4. A CRBA is a formal

document certifying the acquisition of U.S. nationality at birth by a person born abroad. Peek

Decl. ¶ 5.

Applicants for U.S. passports and CRBAs have the burden of proving by a preponderance

of the evidence, also known as balance of probabilities, their identity and that they are citizens of

the United States. Peek Decl. ¶ 6. An adjudicating officer may require additional evidence of

identity or citizenship in accordance with Department guidelines, the U.S. Code, and the Code of

Federal Regulations. Peek Decl. ¶ 6.

Consular officers are empowered by the Secretary of State to adjudicate passport

applications overseas and to determine whether an applicant has met the preponderance of the

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evidence standard as to their U.S. citizenship, identity, and entitlement to a passport. Peek Decl.

¶ 7. Consular officers must follow established adjudication policies and procedures, use

adjudicative logic and discretion, and research and use appropriate resources to ensure that the

standard of evidence for citizenship and identity is met. Peek Decl. ¶ 7. In doing so, consular

officers have authority to determine whether to seek additional information in support of a passport

application. Peek Decl. ¶ 7. Such additional information may be sought by, for example, by

requesting secondary evidence such as pre- or post-natal medical records, photographs, credible

affidavits, or suggesting that an applicant seek DNA testing to verify a parent-child relationship,

when a child claims derivative U.S. citizenship through a U.S. citizen parent or the child’s identity

is otherwise in doubt. Peek Decl. ¶ 7.

As with passports, adjudicating officers are authorized to adjudicate CRBA applications

overseas and to determine whether an applicant has met the preponderance of the evidence

standard as to their U.S. citizenship using all the adjudicative tools at their disposal. Peek Decl. ¶

8.

Assessing whether an applicant has provided sufficient evidence to establish a claim to

U.S. citizenship can usually be accomplished through review of documentary evidence provided

by the applicant. Peek Decl. ¶ 9. In reviewing documentation and evidence submitted in support

of a passport or CRBA application, an adjudicating officer must examine the citizenship and

identity evidence carefully to determine if the documents are valid. Peek Decl. ¶ 9. This

requirement applies to foreign documents such as birth certificates and marriage certificates. Peek

Decl. ¶ 9.

An attributed identity is given at or near birth: the full name, date of birth, place of birth,

and parents’ names. Peek Decl. ¶ 10. Among other things, a birth certificate can be used to

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establish an applicant’s identity. Peek Decl. ¶ 10. Attributed identities, however, are vulnerable

to fraud because an attributed identity can be forged, manipulated, or assumed by an impostor.

Peek Decl. ¶ 10.

In adjudicating a claim to U.S. citizenship based on birth abroad to a U.S. citizen parent(s),

the adjudicating officer must be satisfied that the evidence submitted is sufficient to establish the

facts of birth, for example, the child’s full name, date of birth, place of birth, and parents’ names.

Peek Decl. ¶ 11. Adjudicating officers are trained to review and assess the validity of local

documents including birth certificates and marriage certificates. Peek Decl. ¶ 12. In some foreign

jurisdictions, including Gaza, the Department has limited resources to confirm the authenticity of

documents issued by the local authorities. Peek Decl. ¶ 12. As a result, adjudicating officers must

rely on their training and expertise to identity fraud indicators, which may cast doubt on the

credibility or authenticity of a foreign document and request additional evidence, as appropriate.

Peek Decl. ¶ 12. If credible primary evidence of an applicant’s birth, such as a timely filed certified

copy of the applicant’s foreign birth certificate, is unavailable, adjudicating officers are required

to request secondary evidence of birth. Peek Decl. ¶ 13. If doubts arise as to a child’s identity or

parentage, adjudicating officers are instructed to make further inquiries and request additional

documentation. Peek Decl. ¶ 14.

When other forms of credible evidence are insufficient, DNA testing is commonly used to

verify a parent/child relationship in conjunction with a citizenship case or an immigrant visa

application. Peek Decl. ¶ 15. The Department does not require that an applicant or an applicant’s

parents submit a DNA test. Peek Decl. ¶ 15.

If an applicant does not submit sufficient credible evidence, adjudicating officers are

required to provide the applicant with written notification that her/his application will be denied if

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additional evidence is not submitted within 90 days. Peek Decl. ¶ 16. If an applicant requests

additional time to submit evidence within the 90-day period, adjudicating officers may grant an

additional 90 days or other reasonable period of time based upon the circumstances. Peek Decl.

¶ 16. If additional evidence is not submitted within that time period, the incomplete application

must be denied. Peek Decl. ¶ 16. The applicant should be notified in writing of the reason for the

denial. The final result of all passport and CRBA applications must be issuance, denial, or

withdrawal requested in writing by the applicant. Peek Decl. ¶ 16. An applicant may always re-

apply for a U.S. passport. Peek Decl. ¶ 16.

The question of a relationship between applying parents and their alleged biological child

born abroad is critical in adjudicating applications for U.S. passports and CRBAs. Among other

reasons, an adjudicating officer must be satisfied that a legal and biological relationship exists

between the applying parents and their alleged child born abroad to defend against attempts to

circumvent the foreign adoption procedures. Peek Decl. ¶ 17. To satisfy the biological

relationship prong, an adjudicating officer may request documentary evidence to establish such

relationships, including pre- and post-natal medical records, pregnancy photos, or other evidence

to substantiate a biological relationship between one or both parents. Peek Decl. ¶ 17. To satisfy

the legal relationship prong, an adjudicating officer will ask for evidence of such relationship under

the local law where the child was born, most commonly a valid birth certificate listing the child’s

parents. Peek Decl. ¶ 17.

It is the Department’s duty to document children as U.S. citizens only after they are fully

satisfied, under the totality of the circumstances, that the applicant has met their burden of proof

as to their identity, U.S. citizenship, and entitlement to such document. Peek Decl. ¶ 18. In some

instances, a U.S. citizen may falsely claim that a foreign-born child is his or her biological child,

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when instead such person(s) has adopted the child or otherwise obtained physical custody of the

child. Peek Decl. ¶ 18. The State Department has encountered cases where false parentage claims

were made to avoid full legal adoption and/or visa procedures and to instead fraudulently

document the child as a U.S. citizen. Peek Decl. ¶ 18. In one example, U.S. citizens residing in

Mexico appeared at the U.S. Embassy in Mexico City and attempted to document two

grandchildren as U.S. citizens by means of a fraudulent Mexican birth record identifying the U.S.

citizen grandparents as the children’s parents. Upon scrutiny of their application and citizenship

claims, the grandparents admitted they were not the children’s true parents. Peek Decl. ¶ 18.

Children born abroad to alien parents, who are later adopted by U.S. citizen parents, do not acquire

U.S. citizenship at birth through their U.S. citizen parents. Peek Decl. ¶ 19.

Because foreign birth records are subject to fraud, adjudicating officers are authorized to

request additional supporting evidence to establish a child born abroad has not been unlawfully

adopted. Peek Decl. ¶ 20. This is particularly important in cases where other fraud indicators exist

which call into question the applying parent’s relationship with their alleged child and therefore

the child’s identity. Peek Decl. ¶ 20. The United States has a compelling interest in ensuring that

U.S. citizenship documentation is obtained only by those entitled to it. Peek Decl. ¶ 20.

Adjudicating officers are required to properly identify the legal and biological parents of a

child born abroad in part to defend against child trafficking efforts. Peek Decl. ¶ 21. The Office

of Adjudication within the Passport Services Directorate of the U.S. Department of State’s Bureau

of Consular Affairs provides guidance in situations where a non-legal parent attempts to claim

they are a child’s legal parent or guardian. Peek Decl. ¶ 21. By law, passports may not be issued

without the consent of all legal parents or guardians. Peek Decl. ¶ 21. The State Department’s

efforts to identify a child’s true legal parents help address child abduction and child trafficking

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concerns and ensure that absent third-party parental rights are not unlawfully extinguished. Peek

Decl. ¶ 21. Ascertaining the biological and legal relationship between the applying parents and

their alleged child born abroad, a burden which the applying parents bear, is therefore required to

ensure U.S. citizenship documentation is obtained only by eligible applicants. Peek Decl. ¶ 21.

B. The Department’s request for additional evidence was the least restrictive
means of accomplishing its compelling interests in this case.

Vice Consul Woda’s request that the Sabras submit additional evidence in support of Baby

M.’s CRBA and passport applications—which could, but must not necessarily, include DNA or

pregnancy photos—was the least restrictive means of accomplishing the government’s compelling

interests in protecting against fraud and possible international child abduction, illegal adoption,

and human trafficking.

In this case, the Sabras claim that Baby M. is their biological child, and that Ms. Ponn

Sabra gave birth to Baby M. in Gaza. See generally Am. Compl; Peek Decl. ¶ 23. The adjudicating

officer requested a number of pieces of primary evidence to verify this claim, including an

authentic copy of the record of birth filed with local authorities. Peek Decl. ¶ 23. The adjudicating

officer noted his concerns about the discrepancies in the birth records submitted to him, the fact

that the alleged mother was beyond normal child-bearing years, and the absence of credible

medical documentation to substantiate the Sabras’ claim of emergency circumstances or to waive

the personal appearance of the child. Peek Decl. ¶ 23.

The adjudicating officer made further inquiries to try and establish the claimed biological

and birth relationship of Ponn Sabra to Baby M. Peek Decl. ¶ 24. The officer requested copies of

prenatal and post-natal records and medical documentation from the clinic where the birth

allegedly occurred to determine whether Ms. Sabra was a patient and was the biological and birth

mother of the child. Peek Decl. ¶ 24. The adjudicating officer explained to Ms. Sabra that

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additional evidence of a biological relationship to Baby M. was required before she could obtain

a CRBA and passport. Peek Decl. ¶ 24. The officer noted such evidence could include submission

of pre and post-natal medical records, ultrasounds, and/or photos of Ms. Sabra during her

pregnancy. Peek Decl. ¶ 24. It was only after Ms. Sabra stated that she did not have or would not

produce those additional documents, that the adjudicating officer suggested that DNA evidence

could be considered to establish a parent-child relationship. Peek Decl. ¶ 24.

Among other things, the Sabras subsequently submitted a declaration from a local doctor,

Dr. , dated June 25, 2019. Peek Decl. ¶ 25. The adjudicating officer contacted Dr.

with the assistance of a translator to verify the information in his declaration. Peek Decl.

¶ 25.

The adjudicating consular officer contemporaneously identified a number of potential

fraud indicators in the Sabras’ application, including an alteration of Baby M.’s birth certificate,

that prompted the officer’s requests for additional evidence to support the child’s identity and

claim to U.S. citizenship. Peek Decl. ¶ 26. The list of potential fraud indicators used by Consular

Officers is deemed sensitive but unclassified, and therefore cannot be shared publicly. Peek Decl.

¶ 26. Due his identification of these potential fraud indicators, the adjudicating consular officer

determined that submission of pre- and post-natal medical records or photos of Ponn Sabra during

the pregnancy, or any other evidence that could substantiate the claimed biological and birth

relationship, was necessary because the Sabras had not met their burden of proving a biological

relationship between Ponn Sabra and Baby M., which called into question Baby M.’s identity.

Peek Decl. ¶ 26. Only after Ponn Sabra stated that she did not have, or would not produce, these

additional documents did the adjudicating consular officer suggest that she could also provide a

DNA analysis establishing a parent-child relationship between either or both Mohammed and Ponn

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Sabra and Baby M. Peek Decl. ¶ 26. But throughout the process, the officer emphasized that

multiple types of documentary evidence could help establish the necessary relationship for Baby

M., including, for example, hospital medical records, credible affidavits, and pregnancy photos.

The adjudicating officer reviewed and considered each document submitted in support of Baby

M.’s application. Peek Decl. ¶ 26.

Ultimately, the adjudicating officer determined that the Sabras had not met their burden of

proof due to the numerous inconsistencies and fraud indicators contained within the submitted

documents and a lack of credible evidence establishing a relationship between Mohammed or Ponn

Sabra and Baby M. Peek Decl. ¶ 27. At no point did the Department require the Sabras to submit

to DNA testing or to provide photos of Ms. Sabra pregnant, nor did it condition receipt of a

government benefit on such submission. See infra at 26-27. As such, the Department’s request

for additional evidence, which could include medical records, declarations, photos, DNA, or any

other evidence, was the least restrictive means of accomplishing its compelling interests.

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CONCLUSION

For the foregoing reasons, the Court should dismiss the APA claim in Defendant’s

Amended Complaint and should grant summary judgment in Defendant’s favor on the sole

remaining claim, Plaintiff’s RFRA claim.

Dated: August 18, 2020

Respectfully submitted,

MICHAEL R. SHERWIN
Acting United States Attorney

DANIEL F. VAN HORN

D.C. Bar #924092
Chief, Civil Division

By: Diana V. Valdivia

DIANA V. VALDIVIA
D.C. Bar # 1006628
Assistant United States Attorney
555 4th Street, N.W.
Washington, D.C. 20530
T: (202) 252-2545
diana.valdivia@usdoj.gov

Counsel for Defendant

37