Motion in Opposition To Renewed Motion

Case 1:19-cv-02090-EGS Document 92 Filed 11/20/20 Page 1 of 24
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.
PLAINTIFF’S COMBINED MOTION IN OPPOSITION TO

DEFENDANT’S COMBINED (1) MOTION TO DISMISS 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
I. INTRODUCTION .................................................................................................................... 1
II. BACKGROUND AND STATUTORY FRAMEWORK.................................................... 1
A. Statutory Framework..............................................................................................................1
B. Brief Factual and Procedural Background .............................................................................2
II. LEGAL STANDARDS .......................................................................................................... 5
A. Dismissal Pursuant to Rule 12(B)(6) .....................................................................................5
B. Reconsideration Pursuant to Rule 54(B) ................................................................................6
C. Summary Judgment Pursuant to Rule 56 ................................................................................6
III. ARGUMENTS AND AUTHORITIES ................................................................................ 8
A. Plaintiff Has Sufficiently Alleged a Claim Under The APA .................................................8
1. The INA Does Not Provide an Adequate Alternate Remedy ............................................8
B. This Court’s Finding on Plaintiff’s RFRA Claim Does Not Warrant Reconsideration........13
C. Defendant is Not Entitled to Summary Judgment on Plaintiff’s RFRA Claim....................16
CONCLUSION ........................................................................................................................... 19
CERTIFICATE OF SERVICE ................................................................................................. 20
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TABLE OF AUTHORITIES
Cases
Alaska Legislative Council v. Babbitt, 15 F. Supp. 2d 19 (D.D.C. 1998) .....................................16
Anderson v. Liberty Lobby, Inc., 447 U.S. 242 (1986) ....................................................................8
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................................................5
Barr Labs. v. Thompson, 238 F. Supp. 2d 236 (D.D.C. 2002) ........................................................9
Chacoty v. Pompeo, 392 F. Supp. 3d 1 (D.D.C. 2019) ......................................................11, 12, 13
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988) ................................................7
Citizens for Responsibility & Ethics in Wash., v. U.S. Dep’t of Justice, 658 F. Supp. 2d 217
(D.D.C. 2009) ..............................................................................................................................8
Cobell v. Norton, 224 F.R.D. 266 (D.D.C. 2004) ......................................................................7, 17
Covad Commc’ns. Co. v. Bell Atl. Corp., 398 F.3d 666 (D.C. Cir. 2005) .......................................6
Ehrman v. United States, 429 F. Supp. 2d 61 (D.D.C. 2006) ..........................................................8
Ficken v. Golden, 696 F. Supp. 2d 21 (D.D.C. 2010)....................................................................17
Hinojosa v. Horn, 896 F.3d 305 (5th Cir. 2018).........................................................11, 12, 13, 14
James Madison Project v. CIA, 344 F. Supp. 3d 380 (D.D.C. 2018) ..............................................8
Lederman v. United States, 539 F. Supp. 2d 1 (D.D.C. 2008).........................................................7
Macon v. United States Capitol Police Bd., 258 F. Supp. 3d 94 (D.D.C. 2017) .............................5
Momenian v. Davidson, 878 F.3d 381 (D.C. Cir. 2017) ..................................................................6
Muhammad v. United States, 300 F. Supp. 3d 257 (D.D.C. 2018) ............................................6, 17
Murphy v. Exec. Office for United States Attys., 11 F. Supp. 3d 7 (D.D.C. 2014) ..........................6
Nuzzo v. FBI, Civ No.95 -1708 (RMU), 1996 WL 741587 (D.D.C.1996) ......................................9
Paleteria La Michoacana v. Productos Laceos Tocumbo S.A. De C.V., No. 11-1623 (RC), 2015
U.S. Dist. LEXIS 198243 (D.D.C Apr. 2, 2015) .........................................................................7
Phillips v. Spencer, No. 11-cv-02021, 2019 U.S. Dist. LEXIS 117313 (D.D.C. July 15, 2019) ....8
Rains v. Cascade Indus., Inc., 402 F.2d 241 (3d Cir.1968) .............................................................9
Rusk v. Cort, 369 U.S. 367 (1962) ...............................................................................11, 12, 13, 14
Singh v. McHugh, 185 F. Supp. 3d 201 (D.D.C. 2016) .................................................................18
Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 239 F. Supp. 3d 77 (D.D.C.
2017) ..........................................................................................................................................18
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Statutes
5 U.S.C. § 551 ................................................................................................................................. 5
5 U.S.C. § 704 ............................................................................................................................... 16
5 U.S.C. § 706 ......................................................................................................................... 11, 15
8 U.S.C. § 1104(a) .......................................................................................................................... 5
8 U.S.C. §1401(c) ..................................................................................................................... 5, 12
8 U.S.C. §1503 ........................................................................................................................ 11, 15
8 U.S.C. §1503(a) ......................................................................................................................... 11
8 U.S.C. §1503(b) ............................................................................................................. 11, 12, 14
22 C.F.R. § 50.2 .............................................................................................................................. 5
22 C.F.R. § 50.7(a).......................................................................................................................... 5
Regulations
8 FAM 301.7-5(b)(1)-(4)…………………………………………………………………………17
Rules
Fed. R. Civ. P. 8(a) ......................................................................................................................... 8
Fed. R. Civ. P. 12(b)(6)................................................................................................................... 8
Fed. R. Civ. P. 54(b) ................................................................................................................. 9, 17
Fed. R. Civ. P. 56 .............................................................................................................. 10, 19, 20
Fed. R. Civ. P. 56(a) ..................................................................................................................... 10
Constitutional Provisions
U.S. Const. amend. XIV……………………………………………………………………………1
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I. INTRODUCTION
As set forth in Plaintiff’s First Amended Complaint (Doc. 66, hereinafter Plaintiff’s “FAC”),
Plaintiff Mohammed Sabra (hereinafter “Plaintiff” or “Father Sabra”), as next friend of Baby M,
filed the present lawsuit seeking declaratory, injunctive and mandamus relief recognizing Baby M
as his daughter, and therefore immediately eligible for U.S. citizenship by virtue of her birth to two
U.S. citizen parents. At this time, Defendant moves (1) to dismiss in part Plaintiff’s FAC, (2) for
reconsideration of the denial of its prior Motion for Summary Judgment with respect to Plaintiff’s
Religious Freedom Restoration Act (“RFRA”) claim, and (3) for renewed summary judgment with
respect to Plaintiff’s RFRA claim. Plaintiff respectfully requests that this Court deny each element
of Defendant’s requested relief. Also currently pending at this time is Plaintiff’s Rule 56(d) Motion
for discovery, which is now fully briefed and before this Court, as well as Defendant’s Motion
seeking to stay that completed briefing.
II. BACKGROUND AND STATUTORY FRAMEWORK
A. Statutory Framework
Pursuant to the U.S. Constitution and relevant Acts of Congress, whether individuals are entitled
to U.S. citizenship at the time of birth depends upon the place of their birth, and the citizenship status
of the individuals’ parents. The Fourteenth Amendment to the 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. With respect to persons born outside of the United States,
the question of citizenship turns on the status of that child’s parents. In relevant part, 8 U.S.C.
§1401(c) states that a child born abroad to married parents automatically obtains citizenship at the
time of birth if both parents are United States citizens, and at least one of the parents has resided in
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the United States prior to the birth of the child. Determinations regarding a person’s citizenship
status or eligibility for citizenship are delegated by Congress to the Department of State. 8 U.S.C. §
1104(a) (stating that the “Secretary of State shall be charged with the administration and the
enforcement of … the determination of nationality of a person not in the United States”). Individuals
born abroad to U.S. citizen parents must apply for a Consular Report of Birth Abroad (“CRBA”)
from the Department of State prior to entry into the United States. See 22 C.F.R. § 50.2. Upon receipt
of an application for a CRBA and under the supervision of a consular officer, “designated nationality
examiners shall…adjudicate…applications for a [CRBA],” at which point an approved CRBA may
only be issued by a consular officer. Id. The consular official will issue a CRBA upon submission
of “satisfactory proof of birth, identity and nationality,” with the burden for submitting such evidence
resting on the applicant. 22 C.F.R. § 50.7(a); see also id. at § 50.5 (referencing 22 C.F.R. Part 51
Subpart C).
B. Brief Factual and Procedural Background
On July 15, 2019, Plaintiff filed the present action as Next Friend on behalf of his daughter, Baby
M. See Doc. 1. On June 26, 2020, Plaintiff amended his Complaint to accurately reflect the updated
factual record, and add a claim pursuant to the Administrative Procedure Act (“APA”). See Doc. 66.
Both Plaintiff and his wife (“Mother Sabra”) are United States citizens; they have been married since
1998 and have four daughters together, including Baby M Doc. 66 at ¶¶ 10-12. Prior to becoming
pregnant with Baby M, Mother Sabra moved to Gaza, along with their three daughters, in order to
enable her eldest two daughters to attend University there. Id. at ¶ 14. At the time of her move in
2018, Mother Sabra was unaware that she was newly expecting another child; however, her medical
records reflect the fact that she
. Id. at ¶¶ 13-15. Throughout her pregnancy, Mother
Sabra did not have any ultrasound examinations, as this was a high-risk pregnancy, and she
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determined she would carry the baby to full term regardless of any risks or conditions that might
have been revealed by an ultrasound. Id. at ¶ 16. At the time of Baby M’s birth in 2019, she was
immediately eligible for United States citizenship, by virtue of her parents’ status as American
citizens. Id. at ¶ 18.
Shortly after Baby M’s birth, Plaintiff and his wife discovered that Baby M was suffering from
several life-threatening health conditions; accordingly, Mother Sabra took immediate action to
arrange for her transport to the U.S. to receive medical care. Id. at ¶¶ 19-20. On July 11, 2019,
Mother Sabra contacted the nearest Embassy to her, the U.S. Embassy in Jerusalem; however, due
to limited permitted mobility in and out of Gaza, she was only able to contact the Embassy via e-
mail. Id. at ¶ 21. Through the Embassy, Mother Sabra applied for expedited processing to obtain a
CRBA and U.S. passport for her infant daughter. Id. at ¶ 22. Following initial contact with the
Embassy, Mother Sabra received a phone call following up on her application, after which the
Embassy listed the application as ‘pending.’ Id. at ¶¶ 23-24. Vice Consul Joshua Woda, the consular
official assigned to her case, added a handwritten notation to the application stating that “proof of
biological relationship” was needed, and instructing that “we suggest DNA.” Id. at ¶ 24. At this
stage, Mother Sabra and Plaintiff had submitted documentation proving the parent-child relationship
between themselves and Baby M, including a Palestinian birth certificate listing both parents’ names
as the child’s mother and father; the mother’s medical records documenting that
; and information showing that Baby M had been registered on her father’s
Palestinian national identification card (hawiya) as his child. Id. at ¶ 25. The Embassy did not
identify any reason why its initial interaction with Mother Sabra caused doubt as to the parent-child
relationship and the insistance upon biological evidence. Id. at ¶ 26. Further, as noted by this Court
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in its prior ruling, although proof of a parent-child relationship is necessary in these circumstances,
proof of a biological relationship is not statutorily required.
Based on Vice Consul Woda’s instruction, the Embassy informed Mother Sabra that a DNA test
would be necessary in order to confirm the biological relationship between Baby M and Mother
Sabra. Id. at ¶ 27. Mother Sabra responded by explaining that her child was in poor health and at
that time was not expected to physically withstand a trip to the Embassy for a DNA sample, or the
subsequent 30-day wait period for the results of that test. Further, Plaintiff and Mother Sabra
conveyed to Defendant that they opposed a DNA test based on their sincerely held religious beliefs.
Id. at ¶ 28. Although Defendant contends that a DNA test is technically voluntary, all information
provided to Mother Sabra indicated that it was the only thing delaying the processing and ultimate
approval of the application on behalf of Baby M. Id. at ¶ 29. At this point, Mother Sabra provided
further documentation to the Embassy, to which they responded by continuing to “suggest” that
Plaintiff and his wife obtain a DNA test in order to complete the processing of the application. Id. at
¶ 30-32. Plaintiff also communicated via e-mail with Vice Consul Woda; however, he received no
better response. Vice Consul Woda insisted on additional prenatal medical records, as well as
pregnancy photos or ultrasounds. Id. at ¶ 33. As Mother Sabra had already explained, Baby M’s
parents elected not to partake in ultrasounds, and the only photos taken during her pregnancy are of
an intimate nature which, for religious reasons, the family is unwilling to provide to anyone outside
of the family. Id. On Tuesday, June 25, 2019, counsel for Plaintiff contacted the Embassy via e-mail,
reiterating the time-sensitive nature of Baby M’s application and Plaintiff’s religious objections to a
DNA test or photographic evidence of Mother Sabra, and pointing to the certified documentation
that had already been provided. Id. at ¶ 34. However, counsel received similar resistance from the
Embassy. Id. at ¶¶ 35-39. On October 22, 2019, months after the filing of this lawsuit, Defendant
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issued a final agency decision denying Baby M’s CRBA application and application for a passport
for Baby M. Id. at ¶ 40.
Following the inception of this lawsuit, both parties filed cross-motions for summary judgment.
This Court granted in part and denied in part Defendant’s Motion for Summary Judgment, holding
that Defendant was not entitled to summary judgment on Plaintiff’s claim under RFRA. See Doc.
59. Defendant now asks this Court to dismiss Plaintiff’s newly brought APA claim, and to reconsider
or newly grant summary judgment on Plaintiff’s RFRA claim.
II. LEGAL STANDARDS
A. Dismissal Pursuant to Rule 12(B)(6)
A motion to dismiss brought pursuant to Fed. R. Civ. P. 12(b)(6) is intended to test the legal
sufficiency of a complaint in order to determine whether the Plaintiff has adequately stated the
grounds for a claim upon which relief can be granted. See Macon v. United States Capitol Police
Bd., 258 F. Supp. 3d 94, 103 (D.D.C. 2017). In order to prevail on a Rule 12(b)(6) motion, the
complaint need only “contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). At
the motion to dismiss stage, detailed factual allegations are not necessary, nor is a plaintiff “required
to ple[a]d facts sufficient to prove its allegations; rather, the complaint need only contain ‘a short
and plain statement of the claim showing that the pleader is entitled to relief.’” Covad Commc’ns.
Co. v. Bell Atl. Corp., 398 F.3d 666, 671 (D.C. Cir. 2005) (quoting Fed. R. Civ. P. 8(a)). The “issue
presented by a motion to dismiss is not whether a plaintiff will ultimately prevail but whether a
claimant is entitled to offer evidence to support the claims.” Covad, 398 F.3d at 671 (internal
citations omitted). A court evaluating a Rule 12(b)(6) motion must accept the plaintiff’s allegations
as true and “draw all reasonable inferences in the plaintiff’s favor.” Muhammad v. United States,
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300 F. Supp. 3d 257, 262 (D.D.C. 2018) (citing Momenian v. Davidson, 878 F.3d 381, 387 (D.C.
Cir. 2017)).
B. Reconsideration Pursuant to Rule 54(B)
Reconsideration of interlocutory orders is governed by Fed. R. Civ. P. 54(b), which provides
in relevant part that “any order or other decision…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 entry of a judgment adjudicating all the claims and
all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b); see Murphy v. Exec. Office for United
States Attys., 11 F. Supp. 3d 7, 8 (D.D.C. 2014) (noting that Rule 54(b) governs reconsideration of
non-final orders). “Due to considerations of finality, predictability and preserving judicial
resources,” a court evaluating a motion for reconsideration of interlocutory orders should be “loathe
to [revisit its own prior decision] in the absence of extraordinary circumstances such as where the
initial decision was clearly erroneous and would work a manifest injustice.” Lederman v. United
States, 539 F. Supp. 2d 1, 2 (D.D.C. 2008); Christianson v. Colt Indus. Operating Corp., 486 U.S.
800, 817 (1988). This District has previously held that courts will grant reconsideration only “as
justice requires,” meaning that, within the court’s discretion, reconsideration is only appropriate
when it is “necessary under the relevant circumstances.” Cobell v. Norton, 224 F.R.D. 266, 272
(D.D.C. 2004). Such circumstances are rare, and “courts must grant Rule 54(b) motions only in
exceptional cases.” Paleteria La Michoacana v. Productos Laceos Tocumbo S.A. De C.V., No. 11-
1623 (RC), 2015 U.S. Dist. LEXIS 198243, at *12 (D.D.C Apr. 2, 2015) (internal quotations
omitted).
C. Summary Judgment Pursuant to Rule 56
Pursuant to Fed. R. Civ. P. 56, a court “shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
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matter of law.” Fed. R. Civ. P. 56(a). In this case, both parties submitted cross-motions for summary
judgment; accordingly, the reviewing court shall grant summary judgment only if one of the moving
parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed.
Phillips v. Spencer, No. 11-cv-02021, 2019 U.S. Dist. LEXIS 117313, *23 (D.D.C. July 15, 2019)
(citing Citizens for Responsibility & Ethics in Wash., v. U.S. Dep’t of Justice, 658 F. Supp. 2d 217,
224 (D.D.C. 2009).
Disputes are genuine only if a reasonable fact-finder could find for the non-moving party,
while a fact is material only if it is capable of affecting the outcome of the litigation. See James
Madison Project v. CIA, 344 F. Supp. 3d 380, 386 (D.D.C. 2018) (citing Anderson v. Liberty Lobby,
Inc., 447 U.S. 242, 247 (1986) (internal citations omitted)). When parties file cross-motions for
summary judgment, “each must carry its own burden under the applicable legal standard.” Ehrman
v. United States, 429 F. Supp. 2d 61, 67 (D.D.C. 2006); see also Barr Labs. v. Thompson, 238 F.
Supp. 2d 236, 244 (D.D.C. 2002) see also Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d
Cir.1968) (“Cross-motions are no more than a claim by each side that it alone is entitled to summary
judgment, and the making of such inherently contradictory claims does not constitute an agreement
that if one is rejected the other is necessarily justified”); Nuzzo v. FBI, Civ No.95 -1708 (RMU),
1996 WL 741587, *1 (D.D.C.1996) (“When both parties in a cause of action move for summary
judgment, each party must carry its own burden”). At the summary judgment stage, all underlying
facts and inferences stemming therefrom must be viewed in a light most favorable to the non-moving
party.
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III. ARGUMENTS AND AUTHORITIES
A. Plaintiff Has Sufficiently Alleged a Claim Under The APA
1. The INA Does Not Provide an Adequate Alternate Remedy
Defendant moves for dismissal of Plaintiff’s APA claim on the grounds that “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” through 8 U.S.C. §1503 (“Section 1503”). Doc. 78-1 at
17. Section 1503 provides, in relevant part, that when an aggrieved party is “not within the United
States,” that party may apply for a “certificate of identity” certifying his or her citizenship status,
from the U.S. diplomatic or consular officer nearest that individual’s residence. 8 U.S.C. §1503(b).
If a certificate of identity is granted, then the individual may apply for admission to the United States
through a port of entry, at which point she will be considered to be “within the United States” and
fall under the purview of 8 U.S.C. §1503(a). If an individual’s application for a certificate of identity
is denied, that denial can be appealed to the Secretary of State, and if the Secretary affirms the denial,
the aggrieved party may seek judicial review pursuant to the APA. 8 U.S.C. § 1503(b).
The APA creates a cause of action for “person[s] suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.”
The reviewing court shall “hold unlawful and set aside agency action” that is found to be “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 5 U.S.C. § 706.
Actions brought pursuant to the APA are subject to the limitation that judicial review is only
available where another adequate remedy does not already exist. Accordingly, the crux of
Defendant’s argument for dismissal of Plaintiff’s APA claim is that Section 1503 provides an
adequate remedy, and relief pursuant to the APA is therefore improper. Doc. 78-1 at 25 (“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
8
obtain judicial review”). Defendant is incorrect, and in fact this District has expressly rejected this
argument in nearly identical circumstances on several prior occasions.
Controlling law in this District has repeatedly and explicitly held as recently as 2019 that “8
U.S.C. § 1503(b) and (c) do[] not preclude [a] Plaintiff’s cause of action under the APA.” Chacoty
v. Pompeo, 392 F. Supp. 3d 1, 12 (D.D.C. 2019). Defendant is aware of this fact, and attempts to
distinguish the facts of this case from those contained in this District’s relevant precedent, as well
as the Supreme Court precedent in Rusk v. Cort, choosing instead to rely on a Fifth Circuit case that
is not controlling on this Court. Rusk v. Cort, 369 U.S. 367 (1962); Hinojosa v. Horn, 896 F.3d 305,
312 (5th Cir. 2018). However, this Court’s law with respect to the relationship between the APA
and Section 1503 is clear and settled, as discussed below.
In Chacoty, the plaintiffs brought suit contending that they are U.S. citizens “by birth
pursuant to 8 U.S.C. § 1401 (c),” the provision that “confers birthright citizenship on a person born
abroad….if both of [plaintiff’s] parents are U.S. citizens and one has” resided in the United States
prior to the plaintiff’s birth. Chacoty, 392 F. Supp. 3d at 2. This is the identical citizenship statute at
issue in this case. The State Department in Chacoty sought to dispose of the plaintiff’s APA claim
on the grounds that Section 1503 (b) provided an adequate alternative remedy, the identical argument
advanced by Defendant in this case. In evaluating this argument, the Chacoty court rejected the
Defendant’s reliance on the Fifth Circuit’s decision in Hinojosa v. Horn (the same Fifth Circuit case
cited by Defendant for support in this matter), for the contention that “[the Section 1503] procedures
provide an ‘adequate alternative remedy’ precluding APA relief.” Chacoty, 392 F. Supp. 3d at 9;
Hinojosa, 896 F.3d at 312. Following a description of the grounds upon which the Fifth Circuit
based its conclusion in Hinojosa, the court held that it was “unpersuaded,” holding instead that “the
Supreme Court’s decision in Cort is…on point.” Id.
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Defendant’s attempts to distinguish Cort from the present circumstances are unavailing and
inconsistent with this District’s express rejection of a functionally identical argument in Chacoty.
Defendant argues that Cort is not controlling because it “did not refer to the adequate-alternative
remedy exception in 5 U.S.C. § 704, but to the separate provision in Section 703.” Doc. 78-1 at 28.
However, this District already rejected that argument in Chacoty, reasoning that:
Cort did not refer to the adequate-alternative-remedy exception to the APA, which is
codified at 5 U.S.C. § 704…it did, however, quote the separate provision of the APA,
codified at 5 U.S.C. § 703, which requires that an aggrieved party rely on ‘any special
statutory review’ provision ‘relevant to the subject matter in any court specified by
statute,’ but only if that form of statutory review is adequate…even more importantly,
Cort applied—almost word-for—word the same test that governs for purposes of 5
U.S.C. § 704. Under existing D.C. Circuit case law ‘when considering whether an
alternative remedy is adequate and therefore preclusive of APA review,’ a court must
look for clear and convincing evidence of legislative intent to create a special,
alternative remedy and thereby bar APA Review…it is this test that Cort held is not
satisfied by § 1503(b) and (c) where an aggrieved party outside the United States
seeks to challenge the denial of a ‘right of citizenship’ by the Department under the
APA.
Chacoty, 392 F. Supp. 3d at 10 (citing Cort, 369 U.S. at 379). Defendant’s contention that the
Chacoty analysis is not controlling because Cort applied the clear and convincing evidence test to
the question of exclusivity of an alternate remedy rather than adequacy advances a difference without
a distinction, and ignores the court’s multiple references to the requirement of an adequate remedy
in addition to an exclusive one, as quoted above. Nothing in the Chacoty opinion stands for the
narrow proposition asserted by Defendant that its holding is only applicable to an exclusivity
analysis.
Further, Defendant argues that Cort is factually distinguishable because the Plaintiff in that
case “had been criminally charged with draft evasion,” and therefore faced the burdensome and
arduous prospect that “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
10
were successful.” Doc. 78-1 at 27. Although the Hinojosa majority agreed with this argument, the
Chacoty court contemplated the Hinojosa court’s reasoning and specifically rejected it, holding that
“the Supreme Court’s reasoning in Cort sweeps more broadly than the particular circumstances of
that case.” Id. at 11 (citing Hinojosa 896 F.3d at 313-14). The court further explained that “in any
event, it is not at all clear that the path that Plaintiffs face here is, in fact substantially ‘less
treacherous’ than the one Cort faced” as a result of his criminal charges. Id. Citing to the Hinojosa
dissent, the court held that even though the “Plaintiffs, unlike Cort, do not face criminal
indictments…as the Hinojosa dissent emphasized, those who seek to challenge an administrative
decision under § 1503 (b) and (c) ‘still face the risk of burdensome proceedings under the [INA],
including [possible] detention during the pendency of their applications and, if their applications for
admission are ultimately denied, removal.’” Id. (citing Hinojosa, 896 F.3d at 317 (Dennis, J.
dissenting). In other words, “Cort, held in broad terms that ‘a person outside the United States who
has been denied a right of citizenship is not confined to the procedures prescribed in’ § 1503(b) and
(c), and nothing in that holding turned on the Supreme Court’s passing reference to the specific
burdens Cort faced.” Id. at 11-12.
This District has already considered and decisively rejected each of the arguments advanced
by Defendant here. This District’s law is clear that the APA is not barred by the Section 1503’s
remedial provisions. Although Section 1503 (b) and (c) may constitute one path to judicial review,
the APA is available to Plaintiff at this time.1 Plaintiff therefore respectfully requests that this Court
deny Defendant’s Motion to Dismiss his APA claim.
1
This Court’s prior ruling in this case hints at the conclusion that it is not necessary for Plaintiff to
follow the procedures laid out in 8 U.S.C. § 1503 prior to bringing his claims. In footnote 12 of this
Court’s Memorandum Opinion, the Court states that “the Secretary’s argument that Mr. Sabra must
exhaust his administrative remedies under 8 U.S.C. § 1503 before bringing his claims in this action
… is unavailing … Mr. Sabra may take advantage of the INA’s enumerated procedures under 8
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a. Plaintiff Sufficiently Pleads Facts Showing the Department of State Acted Arbitrarily
and Capriciously in Denying Baby M’s Applications.
As noted above, the APA requires courts to “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. at § 706(2)(D). Plaintiff’s
FAC alleges that “Defendant acted arbitrarily and capriciously in violation of the Administrative
Act when it willfully and unreasonably failed to follow its own ‘preponderance of the evidence
standard’ for proving the parent-child relationship for the purposes of a CRBA application.” Doc.
66 at ¶ 51. Defendant argues for dismissal on the grounds that this Court’s “prior ruling would be
wholly inconsistent with any finding that the Department acted arbitrarily and capriciously in
denying Baby M’s applications.” Doc. 78-1 at 30. Defendant argues that, although “the Court’s prior
order is not a final order for purposes of claim or issue preclusion,” “the interest of judicial economy”
favors dismissing Plaintiff’s APA claim. Id. At the time of the briefing leading to this Court’s prior
order, Plaintiff was not yet able to plead an APA claim, and thus the Court did not evaluate one.
Defendant’s attempt to transform the language in that Order into binding precedent on an issue that
this Court did not address, and indeed could not have addressed, is a blatant effort to make an end-
run around Plaintiff’s right to have this Court consider each of his asserted claims.
The intervening facts of this case undercut the credibility of Defendant’s argument. Under
the APA, “federal courts are permitted to review only final agency action.” Alaska Legislative
Council v. Babbitt, 15 F. Supp. 2d 19, 26 (D.D.C. 1998) (citing 5 U.S.C. § 704) (emphasis added).
Plaintiff first filed this action on July 15, 2019. See Doc. 1. Plaintiff did not receive the Agency’s
final determination on the application for Baby M’s CRBA until October 22, 2019. Doc. 55-1.
U.S.C. § 1503. But, as the master of his complaint, Mr. Sabra did not assert a Section 1503 claim.”
Doc. 59 at fn. 12.
12
Defendant’s own Memorandum of Law in Support of Motion for Summary Judgment argued that
the Court’s “authority to review the conduct of an administrative agency is limited to cases
challenging ‘final agency action,’” and therefore that this Court lacked jurisdiction to conduct such
an evaluation at that time, because no final agency action had been taken “with respect to the CRBA
and Passport application.” Doc. 16.3 at 20-21 (citing 5 U.S.C. § 704).
Plaintiff is now in receipt of a final administrative decision, triggering this Court’s
jurisdiction to hear his APA claim. Plaintiff does not, as Defendant asserts, seek “to relitigate the
same issue under the guise of an APA claim.” This is not an instance of legal gamesmanship; rather,
Plaintiff followed the appropriate procedure to amend his Complaint to bring his APA claim only
after the point at which there was a good faith basis in the law to do so. By the Defendant’s own
language, this Court lacked jurisdiction to hear an APA challenge in the absence of a final decision
on the CRBA and passport applications, and Plaintiff therefore could not have brought this claim in
the early stages of this litigation. Defendant’s request for dismissal on the grounds that Plaintiff’s
Complaint, as amended, is precluded by this Court’s prior ruling, where that ruling did not address
and could not have addressed a claim pursuant to the APA, should be denied.
B. This Court’s Finding on Plaintiff’s RFRA Claim Does Not Warrant Reconsideration
Defendant next requests that this Court reconsider its determination that Plaintiff met his initial
burden on his RFRA claim, because Defendant provided alternative methods of proving the parent-
child relationship. Defendant asserts that its conduct did not impose a substantial burden on
Plaintiff’s religious exercise. Doc 78.1 at 32-34. Circumstances that merit reconsideration of
interlocutory orders pursuant to Fed. R. Civ. P. 54(b) are rare and extraordinary. See Paleteria La
Michoacana v. Productos Laceos Tocumbo S.A. De C.V., No. 11-1623 (RC), 2015 U.S. Dist. LEXIS
198243, at *12 (D.D.C Apr. 2, 2015). Under the D.C. District’s “as justice requires” standard,
13
reconsideration is reserved for circumstances where a court “has patently misunderstood a party, has
made a decision outside the adversarial issues presented to the [c]ourt by the parties, has made an
error not of reasoning, but of apprehension, or where a controlling or significant change in the law
or facts [has occurred].” Cobell, 224 F.R.D. at 22. Although courts have considerable discretion in
considering motions under Fed. R. Civ. P. 54(b), “the court’s discretion…is limited by the law of
the case doctrine and subject to the caveat that where litigants have once battled for the court’s
decision, they should neither be required, nor without good reason permitted, to battle for it again.”
Ficken v. Golden, 696 F. Supp. 2d 21, 35 (D.D.C. 2010).
Defendant does not specify upon which of the above grounds he premises his request.
Defendant argues generally that this Court failed to properly understand and analyze the evidence
presented by Defendant regarding whether DNA evidence was required for it to consider Plaintiff’s
CRBA application. See Doc. 78.1 at 32-34. However, the plain language of this Court’s prior order
reveals that the Court carefully considered all of the evidence brought before it, evinced by its 87-
page analysis, and did consider whether, based on that evidence, the parties had each met their
respective burdens. See Doc. 59. At the summary judgment stage, Plaintiff’s burden is not heavy; he
need only establish a prima facie RFRA violation, at which point the burden shifts to the government
to demonstrate that its interest is compelling and that the action taken is the least restrictive means
of achieving that interest. See id. at 72. In order to establish a prima facie case, the Plaintiff must
show that (1) the government’s policy implicates religious exercise, (2) the relevant religious
exercise is grounded in a sincerely held religious belief, and (3) the policy or action substantially
burdens that exercise. See Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 239 F. Supp.
3d 77, 88 (D.D.C. 2017). Here, Defendant does not dispute the Court’s finding that the first two
14
prongs of the prima facie analysis are satisfied, focusing instead on whether the government’s
actions imposed a substantial burden.
A determination as to whether “a government action substantially burdens a plaintiff’s religious
exercise is a question of law for a court to decide.” Singh v. McHugh, 185 F. Supp. 3d 201, 210
(D.D.C. 2016). Defendant’s assertion that this Court failed to properly construe the DNA test and/or
pregnancy test as mere “suggestions” rather than requirements is contradicted by the plain language
of this Court’s Order. The Court noted that “the Secretary argues that ‘[Mr. Sabra] has not shown
that…the Sabras’ religious exercise has been substantially burdened by the Embassy’s request for
additional evidence, which could include, but was not limited to, the submission’” of pregnancy
photographs or a DNA test. Doc. 57 at 79-80, citing Doc. 18-1 at 28 (emphasis added). However,
the Court correctly concluded that, based on the facts presented, “there is no question that the
Embassy requested the photographs of Mother Sabra while pregnant and DNA analysis to adjudicate
the CRBA and passport applications.” Id. at 86. Plaintiff’s allegations, which must be construed in
the light most favorable to him at this stage, articulate that Mother Sabra was informed by Vice-
Consul Woda that “we would need to submit to a DNA test to prove [Baby M] is [her] daughter.”
Id. at 82-83, citing Doc. 52.2 at 7. Although Defendant argues that this “Court should consider
whether the request for any evidence imposes a substantial burden on Plaintiff’s religious beliefs,
and not whether” DNA or photographic evidence specifically would burden the Sabras’ religious
practice, this argument makes a distinction with no practical difference. Furthermore, the Sabras
did offer significant additional evidence at the request of the Embassy. Doc. 78-1 at 33. However,
the State Department continued to insist that this additional evidence was insufficient, and Ms. Sabra
was directly informed by State Department officials that a DNA test would be required. This Court
had all of these facts before it at the time of their prior determination. Defendant has presented no
15
new facts or intervening law, nor has he successfully demonstrated that the Court failed to consider
the government’s argument in its entirety or erred in its analysis. Accordingly, reconsideration is not
appropriate in this matter.
C. Defendant is Not Entitled to Summary Judgment on Plaintiff’s RFRA Claim
At the time of this filing, Plaintiff has a motion for discovery pursuant to Fed. R. Civ. P.
56(d) pending before this Court. Doc. 82. Plaintiff incorporates the contents of that Motion by
reference and conditions this Response upon the position that he continues to seek discovery in order
to present a full and fair opposition to Defendant’s Motion for Summary Judgment. Id. Regardless,
Defendant is not entitled to summary judgment on Plaintiff’s RFRA claim, as it has not demonstrated
that the government utilized the least restrictive means of furthering its compelling interests. Plaintiff
does not dispute Defendant’s argument that 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.” Doc. 78-1 at 35. However, Defendant fails
on the question of whether the government utilized the least restrictive means available to it in
furthering that interest.
As discussed in Plaintiff’s Rule 56(d) Motion, Plaintiff seeks discovery in order to adequately
combat the government’s assertions that its conduct was narrowly tailored. Doc. 82. To date,
Defendant has presented only partial documentation of its choosing regarding the topics related to
this element of Plaintiff’s RFRA claim, and Plaintiff is entitled to more complete discovery before
responding to summary judgment. Nonetheless, Defendant asks this Court to rule in its favor based
solely on the government’s own self-serving assertions that “Vice Consul Woda’s request that the
Sabras submit additional evidence in support of Baby M’s CRBA and passport applications…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.”
16
Doc. 78-1 at 40. Defendant contends that “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.” However, as discussed in Plaintiff’s Rule 56(d) Motion, and
acknowledged by Defendant, these “fraud indicators” have never been disclosed and Plaintiff lacks
any meaningful way to challenge this assertion without the requested discovery.2
Further, Defendant simultaneously asks this Court to take the government’s Declarations as
conclusive, while disregarding the evidentiary weight of the multiple declarations submitted by
individuals with personal knowledge of the Sabras and the circumstances of Baby M’s birth. As
stated multiple times throughout this lawsuit, Defendant’s allegation that the Sabras failed to provide
evidence of the parent-child relationship between themselves and Baby M ignores the additional
evidence that was submitted, including an official Palestinian birth certificate, Baby M’s registration
on her father’s hawiya, the declarations of family members with personal knowledge of Mother
Sabra’s pregnancy and birth, and medical documentation showing that Mother Sabra was
. Doc. 66 at ¶¶ 25, 45.
Failing to adequately take into account the value of this additional evidence, Defendant remained
unpersuaded that Plaintiff had satisfied his burden to establish Baby M’s parentage by the applicable
preponderance of the evidence standard. See 8 FAM 301.7-5(b)(1)-(4) (identifying a child’s birth
certificate listing the U.S. citizen parents as the child’s parents, the parent’s marriage certificate,
declarations from family members, and evidence of parent’s citizenship as all acceptable means of
establishing the citizenship of a child born abroad to two married U.S. citizens). Defendant’s
2
Defendant states that “[t]he list of potential fraud indicators used by Consular Officers is deemed
sensitive but unclassified, and therefore cannot be shared publicly.” Doc. 78-1 at 35, quoting Peek
Decl. at ¶ 26.
17
insistence on proof of an unnecessary biological relationship can hardly be characterized as the least
restrictive means available in light of Plaintiff and his wife’s expressed religious beliefs.
With respect to Defendant’s contention that its concerns were founded in the fact that “the
alleged mother was beyond normal child-bearing years,” it is true that Mother Sabra was older than
typical for pregnancy, but it is also undisputed that she was still well within the range of possible
fertility, . Doc. 78-1 at 40. Plaintiff’s
allegations, which must be construed in a light most favorable to him at the summary judgment
stage, also articulate that the Embassy informed Mother Sabra that she “would need to submit to a
DNA test to prove [Baby M] is [her] daughter.” Doc. 57 at 82-83. This insistence on DNA evidence
undercuts the credibility of Defendant’s assertion that it utilized narrowly tailored means,
particularly in light of the fact that a biological parent-child relationship is not necessary for the
purposes of a CRBA in this case.
Significant genuine issues of material fact3 exist as to the question of whether Defendant
utilized the least restrictive means available when seeking DNA to support Plaintiff’s CRBA and
passport applications. Plaintiff further articulates these issues in his Statement of Genuine Issues,
filed herewith. Defendant’s insistence to the contrary contradicts both the prior holdings of this
Court and the facts presented in this case.
3
Plaintiff intends to file his own motion for summary judgment on this claim, though is not prepared
to do so without the opportunity to conduct discovery as to the self-serving assertions made by
Defendant as to its methods and motives. Plaintiff reserves the right to assert his own motion for
summary judgment, should that be applicable, at a later date after this Court’s ruling regarding his
Rule 56(d) Motion, files a Motion to Extend his deadline for this filing for this reason simultaneously
with this Response, and makes the arguments in this Response subject to his pending request for
discovery on this issue.
18
CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that this Court issue an order
denying (1) Defendant’s Motion to Dismiss; (2) Defendant’s Motion for Reconsideration; and (3)
Defendant’s Renewed Motion for Summary Judgment.
Respectfully submitted,
/s/ Christina A. Jump

CHRISTINA A. JUMP
D.C. ID NO. TX151
Charles D. Swift
D.C. ID No. 987353
[email protected]
CONSTITUTIONAL LAW CENTER FOR
MUSLIMS IN AMERICA
833 E. Arapaho Rd., Suite 102
Richardson, TX 75081
T: (972) 914-2507
[email protected]
Counsel for Plaintiff
19
CERTIFICATE OF SERVICE
I hereby certify that on October 20, 2020, I electronically filed the foregoing document with
the Clerk of the Court for the United States District Court for the District of Columbia using
CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record
in the manner specified, either via transmission of Notices of Electronic Filing generated by
CM/ECF or via certified mail.
/s/ Christina A. Jump

Christina A. Jump
20
Case 1:19-cv-02090-EGS Document 92-1 Filed 11/20/20 Page 1 of 21
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.
Plaintiff’s Statement of Genuine Issues in Response to

Defendant’s Statement of Material Facts as to Which There is no Genuine Issue
1. On June 11, 2019, Ponn Sabra (“Ms. Sabra”) Admit.

requested an appointment for a consular interview at
Erez Crossing to obtain an emergency Consular
Report of Birth Abroad (“CRBA”) and U.S. passport
for infant Baby M. ECF No. 18-3, Declaration of Vice
Consul Joshua Woda (August 6, 2019) (Sealed)
(“Woda Decl.”) ¶ 6.
2. Vice Consul Woda created contemporaneous case Unable to admit or deny when the
notes of the adjudication of Baby M.’s U.S. passport purported notes were created.
and CRBA applications. See Exhibit 1 to Woda Decl.
¶6
3. During that call, Ms. Sabra claimed to be Baby M,’s Admit.
biological mother and stated that Baby M. had serious
health issues and needed a U.S. passport to travel to
the United States for medical treatment. Woda Decl.
7.
4. Staff at the U.S. Embassy in Jerusalem scheduled Admit that Ms. Sabra was advised to
an appointment for Ms. Sabra to appear at the Erez bring documentation; deny to the extent
Crossing on June 12, 2019, and advised Ms. Sabra to this implies she was instructed to bring
bring documentation related to the child’s birth. Woda any specific documents.
Decl. ¶ 7.
5. U.S. government employees are prohibited from Plaintiff is without factual knowledge to
entering Gaza for personal or official purposes. Woda admit or deny this statement.
Decl. ¶ 4.; U.S. Department of State, Country
Information, Israel, the West Bank and Gaza, at
1
https://travel.state.gov/content/travel/en/international-
travel/International-Travel-Country-Information-
Pages/IsraeltheWestBankandGaza.html
6. U.S. citizens residing in Gaza are unable to travel Admit.
to Jerusalem to apply for services without a permit
issued by the Israeli authorities. Woda Decl. ¶ 4.
7. Prior to the COVID-19 pandemic, American Plaintiff is without factual knowledge to
Citizen Services (“ACS”) unit staff at U.S. Embassy admit or deny this statement.
Jerusalem traveled 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. Woda Decl. ¶
4.
8. Consular officers from the ACS unit were Plaintiff is without factual knowledge to
scheduled to visit the Erez crossing on June 12, 2019. admit or deny this statement.
Woda Decl. ¶ 4.
9. Consular officers from the ACS unit visited the Admit.
Erez crossing on June 12, 2019. Woda Decl. ¶ 8.
10. On June 12, 2019, Ms. Sabra appeared at the Erez Admit.
crossing and submitted a U.S. passport and CRBA
application on behalf of Baby M. Woda Decl. ¶ 8.
11. In support of the passport and CRBA applications, Admit these items were provided. Deny
Ms. Sabra submitted a copy and translation of a birth to the extent that it implies no other
certificate issued on June 10, 2019, by the Palestinian documents were available or offered, or
Authority, Ministry of Interior, General have since been provided.
Administration of Civil Affairs; copies of Ms. Sabra
and Mohammed B. Sabra’s U.S. passport biographical
information pages; a power of attorney document
executed by Max Sabra on March 6, 2015; a 1995
Connecticut State Marriage Certificate of Mohammed
Sabra and Ponn Mahayosnand; and a pediatric
admission form dated June 9, 2019. See Woda Decl.,
Exh. 2; See also ECF No. 28-2, Supplemental
Declaration of Joshua Woda (Aug. 13, 2019) (“Supp.
Woda Decl.”) Ex. 6.
12. Baby M. was not present during the June 12, 2019 Admit that, based on precisely the nature
interview. Woda Decl. ¶ 9. of the emergency request as identified
above, Baby M was not present on June
12, 2019 due to her hospitalization.
13. By regulation, minor children are required to Deny that regulations require minor
personally appear for an interview in support of a U.S. children to appear personally for an
passport application absent emergency circumstances. interview; Admit that the regulations
Woda Decl. ¶ 9. 22 C.F.R. § 51.28. allow for emergency circumstance
exceptions, specifically including
hospitalization of the child. 7 FAM
1444.1(c) (“[w]hen the infant or child is
2
seriously ill…, a personal appearance

may not be possible”); see also 7 FAM
1444.1(b) (“Minor should appear with
parent: the personal appearance of the
child on whose behalf the report of birth
is requested may be required at the
consular officer’s discretion”) (emphasis
added)
14. Ms. Sabra stated that Baby M. was hospitalized Admit.
and could not appear for the interview. Woda Decl. ¶
9.
15. Ms. Sabra presented only a one-sentence Deny as to which “one sentence
statement, in English, and no other hospital records, to statement” this references; admit that
support her statement about Baby M.’s illness. Woda Ms. Sabra provided many documents,
Decl. ¶ 9. including the later-produced admission
form completed on the standard
Palestinian Admission form for
hospitals. See Complaint, Doc. Doc. 66
at ¶¶ 25, 45
3
United States. Doc. 1 at ¶¶ 31-42;

Declaration of Baby M’s physician,
Doc. 1 at Exh. A; Declaration of
Mohammed Sabra.
22. At the conclusion of the June 12, 2019 interview, Admit that Consul Woda stated he
the consular officer explained that he was unable to would not approve the application and
approve the application without additional evidence of “recommended” a DNA test. Deny that
Ms. Sabra’s claimed biological relationship to Baby there was insufficient “proof” of
M. Sabra. Woda Decl. ¶ 12. biological relationship, which is not
even required (which it is not). See 8
FAM 301.7-5(b)(1)-(4) (identifying a
child’s birth certificate listing the U.S.
citizen parents as the child’s parents, the
parent’s marriage certificate, and
evidence of parent’s citizenship as all
acceptable means of establishing the
citizenship of a child born abroad to two
married U.S. citizens).
23. The consular officer suggested Ms. Sabra could Admit that the Consul requested such
submit pre and post-natal medical records, items; deny that they were, or are,
ultrasounds, or photos of her pregnancy. Woda Decl. necessary. See 8 FAM 301.7-5(b)(1)-(4)
¶ 12. (identifying a child’s birth certificate
listing the U.S. citizen parents as the
child’s parents, the parent’s marriage
certificate, declarations from family
members and evidence of parent’s
citizenship as all acceptable means of
establishing the citizenship of a child
born abroad to two married U.S.
citizens).
24. The consular officer further suggested that if no Admit the Consul wrote “we suggest
documents existed to evidence Ms. Sabra’s DNA.” Doc. 66 at ¶ 24.
pregnancy, she could also undergo DNA testing to
establish the claimed mother-child relationship. Woda
Decl. ¶ 13.
25. Ms. Sabra objected to DNA testing due to the Admit that Ms. Sabra objected on that
anticipated processing time and stated that the family day due to processing time, as well as
could not wait in Gaza for the results, but did not assert travel difficulties for Baby M; deny that
a religious objection. Woda Decl. ¶ 14. Ms. Sabra was also required then and
only then to assert any religious
objections. Admit Plaintiff and his wife
have since conveyed religious
objections to the DNA test multiple
times during the pendency of their
applications, in addition to the physical
hardship to Baby M. Doc. 66 at ¶ ¶ 28-
5
34; Declaration of Mohammed Sabra.
26. The consular officer also informed Ms. Sabra that Admit that Ms. Sabra was told the power
additional documentation was necessary to comply of attorney was not sufficient from
with U.S. passport regulations requiring the consent of Mohammed Sabra; admit that the proper
both parents to issue a passport to a minor. Woda Consent of Mohammed Sabra, executed
Decl. ¶ 13. under oath, as was provided to
Defendant prior to the filing of this
lawsuit. Doc. 1 at Exh. K.
6
32. On June 25, 2019, Christina Jump (“Ms. Jump”) Admit.

emailed ACS Jerusalem, identifying herself as counsel
to Mohammed and Ponn Sabra. Woda Decl. ¶ 17.
33. Ms. Jump’s email asserted that DNA testing is Admit.
against Ms. Sabra’s sincerely held religious beliefs as
a practicing Muslim and that Baby M. could not
withstand “either the trip to the Embassy for a DNA
sample or the thirty (30) day wait for results
articulated by U.S. Embassy officials in Jerusalem –
without urgent medical treatment which she cannot
receive in Gaza, Baby M is not likely to survive
another thirty days.” Woda Decl. ¶ 17.
34. On June 28, 2019, ACS Jerusalem responded to Admit that the Consul’s office
Ms. Jump and explained that the documents submitted responded by continuing to claim there
to date were not sufficient to establish a biological was insufficient “proof” of Baby M’s
relationship exists between Baby M. and Mohammad citizenship or “a biological
and Ponn Sabra. Woda Decl. ¶ 17: Compl. Ex. H. relationship”; deny that this response is
accurate or that such “proof” is legally
required.
8
35. Embassy Jerusalem’s response also reiterated its Admit that the Consul’s office made a
offer to assist the faintly in obtaining permits from the limited, conditional offer to assist in
Israeli Government so thot Baby M. could seek moving Baby M to Israel for treatment,
medical treatment. Woda Decl. ¶ 17: Compl. Ex. H. but not home to the United States.
36. On June 28, 2019, Ms. Jump emailed ACS Admit
Jerusalem a June 25, 2019, declaration from the Dr.
from Al Shifa hospital in the Gaze Strip regarding
Baby M.’s medical condition. Woda Decl.
¶ 18; Compl. Ex. A.
37. Dr. declaration is written in English Admit.
and does not contain an Arabic translation. Compl.,
Ex. A.
38. Ms. Jump’s June 28, 2019, email also included a Admit.
Form DS-3053, Statement of Consent: Issuance of a
U.S. Passport to a Minor Under Age 16, executed and
signed by Mohammad Sabra on June 25, 2019.
Compl., Ex. K.
39. On July 1, 2019, Vice Consul Woda called Al Plaintiff is without knowledge to admit
Shifa hospital in the Gaze Strip. Woda Decl. ¶ 19. or deny when this call was placed or by
whom. See Declaration of Mohammed
Sabra.
40. On July 1, 2019, Vice Consul Woda and a locally Plaintiff is without knowledge to admit
employed staff supervisor, Majed Rizek, called Dr or deny when this call was placed or by
. Woda Decl. ¶ 20. whom. See Declaration of Mohammed
Sabra.
41. Dr. does not speak English. Woda Decl. Plaintiff denies this is an appropriate
¶ 20. “fact” for this document, nor that Vice-
Consul Woda sufficiently has knowledge
of this assertion; Plaintiff denies that Dr.
is not able to read written
English. Plaintiff is without knowledge
to admit or deny when this call was
placed or by whom. See Declaration of
Mohammed Sabra.
42. Dr. is a neighbor of Ponn Sabra in the Admit.
Gaza Strip. Woda Decl. ¶ 21.
43. Dr. received a call asking him to Admit.
come
to Ponn Sabra’s home as she was in labor end in need
of assistance. Woda Decl. ¶ 21.
44. Dr. arrived at her home after the child Admit that Dr. arrived
had been born. Woda Decl. ¶ 21. immediately after Baby M’s birth,
during a time of heavy bombing in Gaza.
See Declaration of Mohammed Sabra.
Admit that the doctor prescribed post-
natal antibiotics to Baby M’s mother.
Woda Decl. at ¶ 22.
9
Deny. See above; see Woda Decl. at ¶

48. Dr. statement to Vice Consul Woda
22 and at page 9 (Dr. was
directly contradicts assertions made by Ponn Sabra,
called to Ponn Sabra’s residence because
Mohammad Sabra, and their counsel, including the
she was in labor, and prescribed her
assertions that Dr. delivered Baby M., that
post-natal antibiotics); Declaration of
he is involved in treating Baby M., and that Baby M.
Mohammed Sabra (Dr. was
was born in a clinic. Woda Decl. ¶ 10, 21-22; Compl.
uncomfortable when asked to, and did
¶¶ 41, 48.
not believe he was permitted to, discuss
Baby M’s condition with a stranger over
the phone without her parents’ consent).
Admit that Dr.

49. Neither in his June 25, 2019, declaration, nor in his Declaration
call with Vice Consul Woda does Dr. claimdoes not state one way or the other what
that he delivered Baby M. Woda Decl. ¶ 21-22; his involvement on the day of Baby M’s
Compl., Ex. A birth was; deny the implication that he
was not there; admit he was called to
Ponn Sabra’s house when she went into
labor, and that he prescribed Ponn Sabra
with post-natal antibiotics, as described
in Consul Woda’s notes. See above; see
Decl. at ¶ 22 and at page 9 (Dr.
has been Ponn Sabra’s
neighbor throughout her pregnancy, was
called to Ponn Sabra’s residence because
she was in labor, and prescribed her
post-natal antibiotics); Declaration of
Mohammed Sabra (Dr. was
uncomfortable when asked to, and has
communicated he did not believe he was
permitted to, discuss Baby M’s
condition with a stranger over the phone,
without her parents’ consent).
50. From his conversation with Dr. , Vice- Plaintiff is without knowledge to speak
Consul Woda determined that the declaration to the speculations of Vice-Consul
provided by counsel for the Sabras was not credible. Woda or their bases; deny that this is a
Woda Decl. ¶ 24. “fact” or undisputed.
51. Rather than resolving questions about the Deny. This is not an appropriate “fact”
circumstances of Baby M.’s birth and her medical for consideration on a motion for
condition, the declaration and interview of Dr. summary judgment, but rather the
raised additional concerns regarding the subjective opinion of a consular official.
veracity of the statements made in the Sabras’
application. Woda Decl. ¶ 24.
11
52. Plaintiff filed the instant lawsuit seeking Admit.

declaratory, injunctive, and mandamus relief on July
15, 2019. ECF. No. 1, Compl.
53. During this litigation, and while the Sabras’ Admit.
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.
54. The consular officer evaluated all submitted Admit that the Sabras submitted
documents. Declaration of Paul Peek (Aug. 18, 2020) documentation in support of the parent-
(“Peek Decl.”) ¶ 26 (“The adjudicating officer child relationship between themselves
reviewed and considered each document submitted in and Baby M. Deny to the extent that this
support of Baby M.’s application.”). statement implies that the evaluating
consular officials appropriately
evaluated and weighed each piece of
evidence submitted.
55. Also during the litigation, Defendant clarified that Admit that this was clarified subsequent
DNA testing could be performed on either Mr. Sabra to the filing of this lawsuit. Deny to the
or Ms. Sabra. See 9/4/2019 Hearing Tr. at 22. extent that this implies that Ms. Sabra
was apprised of this fact upon applying
for her daughter’s CRBA. Further deny
to the extent that this implies that
Plaintiff did not also raise religious
objections to his own DNA being tested.
56. Defendant also offered for a female consular Admit to the extent that Defendant
officer to review Ms. Sabra’s pregnancy photos, if offered this option. However, Plaintiff’s
there was a religious objection to have such photos own statements demonstrate that the
reviewed by a male consular officer. See 8/16/2019 family was unwilling, for religious
Hearing Tr. at 54-55. reasons, to share the photographs with
anyone outside of the family, not just
male individuals. Doc. 66 at ¶ 33.
57. The Sabras ultimately chose not to submit DNA Admit that Plaintiff did not submit DNA
testing results, pregnancy photographs, or any further testing, or pregnancy photographs. Deny
materials in support of Baby M.’s applications. See that Plaintiff did not submit additional
generally Am. Compl. materials in support of Baby M’s
application. Doc. 66 at ¶¶ 25, 45.
12
58. The Sabras declined an opportunity to present Admit that the Sabras did not appear in
Baby M. for an in person appearance at the Erez person at the Erez crossing as “offered.”
Crossing in November 2019, after the claimed medical Deny that regulations require minor
emergency had allegedly resolved. ECF No. 51 ¶ 5. children to appear personally in order to
apply for a CRBA; Admit that the
regulations allow for emergency
circumstance exceptions, specifically
including hospitalization of the child. 7
FAM 1444.1(c) (“[w]hen the infant or
child is seriously ill…, a personal
appearance may not be possible”); see
also 7 FAM 1444.1(b) (“Minor should
appear with parent: the personal
appearance of the child on whose behalf
the report of birth is requested may be
required at the consular officer’s
discretion”) (emphasis added)
59. After reviewing Mr. and Ms. Sabra’s submissions Admit the date of the Final Decision, but
and the filings in this case in support of the CRBA and not the propriety of it.
passport applications, the Embassy made its final
decision on October 22, 2019. See Final Decision,
ECF No. 55-1 at 2.
60. The Embassy determined that Mr. Sabra failed to Admit that this was the Embassy’s final
present satisfactory proof of Baby M.’s birth, identity, determination. Deny that this
and citizenship. See id. determination was consistent with the
evidence submitted.
61. Approximately five months after the Embassy’s Admit.
final decision, the Court issued its ruling on the
parties’ cross motions for summary judgment. See
generally Mem. Op.
62. The United States has a compelling interest in Admit generally.
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.
63. The United States also has a compelling Admit generally, though deny that any
government interest in defending against international facts of this case speak to child
child abduction, illegal adoption, and child trafficking. abduction, illegal adoption or child
Peek Decl. ¶¶ 17-18, 21. trafficking.
64. These interests go to the heart of the country’s Deny the phrasing used here. Admit
national security. Peek Decl. ¶ 28. generally as per the above.
65. Passports are travel documents attesting to the Admit.
bearer’s identity and nationality. Peek Decl. ¶ 4.
13
66. As such, in addition to applicable laws and Admit that procedures and policies exist;
regulations, the Department has policies and deny to the extent this statement implies
procedures for adjudicating each applicant’s identity, those procedures or policies are always
identifying and preventing fraud, and ensuring the correct, consistent with statutory
applicant is otherwise entitled to a U.S. passport. Peek languge, or carry the same force of law.
Decl. ¶ 4.
67. A CRBA is a formal document certifying the Admit.
acquisition of U.S. nationality at birth by a person born
abroad. Peek Decl. ¶ 5.
68. Assessing whether an applicant has provided Admit.
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.
69. In reviewing documentation and evidence Admit.
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.
14
70. This requirement applies to foreign documents Admit.

such as birth certificates and marriage certificates.
Peek Decl. ¶ 9.
71. A birth certificate can be used to establish an Admit.
applicant’s attributed identity. Peek Decl. ¶ 10.
72. Attributed identities are vulnerable to fraud Admit that identity fraud likely occurs
because an attributed identity can be forged, generally; Deny to the extent that this
manipulated, or assumed by an impostor. Peek Decl. implies that the Sabras engaged in
¶ 10. identity fraud in this matter.
73. In adjudicating a claim to U.S. citizenship based Admit generally; deny that the
on birth abroad to a U.S. citizen parent(s), the “adjudicating officer” has final or
adjudicating officer must be satisfied that the evidence absolute determinative power.
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.
74. Adjudicating officers are trained to review and Plaintiff is without knowledge to admit
assess the validity of local documents including birth or deny this statement, and Defendant
certificates and marriage certificates. Peek Decl. ¶ 12. has provided no objective evidence to
this effect.
75. In some foreign jurisdictions, including Gaza, the Plaintiff is without knowledge to admit
Department has limited resources to confirm the or deny this fact, and Defendant has
authenticity of documents issued by the local provided no objective evidence to this
authorities. Peek Decl. ¶ 12. effect.
76. As a result, adjudicating officers must rely on their Plaintiff is without knowledge to admit
training and expertise to identity fraud indicators, or deny how each adjudicating officer
which may cast doubt on the credibility or authenticity makes a determination; Deny that this is
of a foreign document and request additional an appropriate “fact” to consider at the
evidence, as appropriate. Peek Decl. ¶ 12. motion for summary judgment stage;
deny that adjudicating officers have final
or absolute determinative power; deny
that Defendant has provided any
objective evidence of the referenced
“training and expertise.”
77. If credible primary evidence of an applicant’s Admit that the adjudicating officers are
birth, such as a timely filed certified copy of the required to confirm the identity of the
applicant’s foreign birth certificate, is unavailable, applicant; deny to the extent that this
adjudicating officers are required to request secondary implies that Plaintiff did not supply a
evidence of birth. Peek Decl. ¶ 13. birth certificate, or other qualifying
documentation on behalf of Baby M;
deny that any specific “secondary
evidence” is required.
78. If doubts arise as to a child’s identity or parentage, Admit that the adjudicating officers are
adjudicating officers are instructed to make further required to confirm the identity of the
inquiries and request additional documentation. Peek applicant; deny to the extent that this
Decl. ¶ 14. implies that Plaintiff did not supply
sufficient qualifying documentation on
behalf of Baby M; deny that Defendant
15
has provided any objective evidence as

to the instructions given to adjudicating
officers, or what “additional
documentation” is required.
79. When other forms of credible evidence are Plaintiff is without knowledge to admit
insufficient, DNA testing is commonly used to verify or deny how commonly DNA testing is
a parent/child relationship in conjunction with a used or in what circumstances; deny that
citizenship case or an immigrant visa application. DNA evidence was required or
Peek Decl. ¶ 15. appropriate here; deny that any proof of
a biological relationship is legally
required in this matter.
80. The Department does not require that an applicant Admit that Defendant’s own regulations
or an applicant’s parents submit a DNA test. Peek do not require DNA testing; deny to the
Decl. ¶ 15. extent that Defendant implies that the
consular officials in this case did not
require DNA evidence from the Sabras;
deny that any proof of biological
relationship is required. Doc. 66 at ¶¶
24, 30.
16
81. If an applicant does not submit sufficient credible Admit that this is the stated regulation;
evidence, adjudicating officers are required to provide deny to the extent that Defendant
the applicant with written notification that her/his implies that Plaintiff did not submit
application will be denied if additional evidence is notsufficient credible evidence; deny that
submitted within 90 days. Peek Decl. ¶ 16. DNA or any other proof of biological
relationship is required.
82. If an applicant requests additional time to submit Admit.
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.
83. If additional evidence is not submitted within that Admit that this is the stated regulation;
time period, the incomplete application must be deny to the extent that Defendant
denied. Peek Decl. ¶ 16. implies that Plaintiff did not submit
sufficient credible evidence; deny that
DNA or any proof of biological
relationship is ever required.
84. The applicant should be notified in writing of the Admit that an applicant should be
reason for the denial. The final result of all passport notified of the reason for the denial of
and CRBA applications must be issuance, denial, or their application; deny to the extent that
withdrawal requested in writing by the applicant. Peek Defendant implies that Plaintiff was
Decl. ¶ 16. provided with sufficiently detailed
information to fully and fairly combat
the reasons for the denial of Baby M’s
CRBA and passport applications.
85. An applicant may always re-apply for a U.S. Admit, though deny any relevance to the
passport. Peek Decl. ¶ 16. instant action, as this does not moot the
legal issues present in this matter.
86. The question of a relationship between applying Deny to the extent that Defendant
parents and their alleged biological child born abroad represents that a biological relationship
is critical in adjudicating applications for U.S. is necessary in order to render a child
passports and CRBAs. Peek Decl. ¶ 17. eligible for U.S. citizenship based on his
or her parentage. Under both the
holdings of this Court and the statutory
language, that is false.
87. Among other reasons, an adjudicating officer must Deny to the extent that Defendant
be satisfied that a legal and biological relationship represents that a biological relationship
exists between the applying parents and their alleged is necessary in order to render a child
child born abroad to defend against attempts to eligible for U.S. citizenship based on his
circumvent the foreign adoption procedures. Peek or her parentage. Under both the
Decl. ¶ 17. holdings of this Court and the statutory
language, that is false.
17
88. To satisfy the biological relationship prong, an Deny that any such prong applies here.
adjudicating officer may request documentary Under both the holdings of this Court
evidence to establish such relationships, including pre- and the statutory language, it does not.
and post-natal medical records, pregnancy photos, or
other evidence to substantiate a biological relationship
between one or both parents. Peek Decl. ¶ 17.
89. To satisfy the legal relationship prong, an Admit, and admit this documentation
adjudicating officer will ask for evidence of such has been provided regarding Baby M.
relationship under the local law where the child was
born, most commonly a valid birth certificate listing
the child’s parents. Peek Decl. ¶ 17.
90. It is the Department’s duty to document children Deny to the extent that Defendant
as U.S. citizens only after they are fully satisfied, attempts to impose anything other than
under the totality of the circumstances, that the the preponderance of the evidence
applicant has met their burden of proof as to their standard that is appropriately applied to
identity, U.S. citizenship, and entitlement to such CRBA applications. Doc. 66 at ¶¶ 51-52.
document. Peek Decl. ¶ 18.
18
91. In some instances, a U.S. citizen may falsely claim Plaintiff is without knowledge to admit
that a foreign-born child is his or her biological child, or deny this as a fact. Plaintiff denies to
when instead such person(s) has adopted the child or the extent that it implies that this is
otherwise obtained physical custody of the child. Peek relevant to the evidence presented in this
Decl. ¶ 18. case.
92. The State Department has encountered cases Plaintiff is without knowledge to admit
where false parentage claims were made to avoid full or deny this as fact. Plaintiff denies to
legal adoption and/or visa procedures and to instead the extent that it implies that this is
fraudulently document the child as a U.S. citizen. Peek relevant to the evidence presented in this
Decl. ¶ 18. case.
93. In one example, U.S. citizens residing in Mexico Plaintiff is without knowledge to admit
appeared at the U.S. Embassy in Mexico City and or deny this as fact. Plaintiff denies this
attempted to document two grandchildren as U.S. fact to the extent that it implies that this
citizens by means of a fraudulent Mexican birth record is relevant to the evidence presented in
identifying the U.S. citizen grandparents as the this case.
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.
94. Children born abroad to alien parents, who are Admit that this is an existing law; deny
later adopted by U.S. citizen parents, do not acquire to the extent that Defendant implies that
U.S. citizenship at birth through their U.S. citizen this is relevant to the facts presented in
parents. Peek Decl. ¶ 19. this case.
95. Because foreign birth records are subject to fraud, Admit that this is an existing regulation;
adjudicating officers are authorized to request deny to the extent that Defendant
additional supporting evidence to establish a child implies that this is relevant to the facts
born abroad has not been unlawfully adopted. Peek presented in this case.
Decl. ¶ 20.
96. This is particularly important in cases where other Plaintiff is without knowledge to admit
fraud indicators exist which call into question the or deny this fact. Plaintiff is further
applying parent’s relationship with their alleged child without knowledge as to the specific
and therefore the child’s identity. Peek Decl. ¶ 20. fraud indicators referenced by
Defendant. Peek Decl. at ¶ 20, 26.
97. The United States has a compelling interest in Admit generally.
ensuring that U.S. citizenship documentation is
obtained only by those entitled to it. Peek Decl. ¶ 20.
98. Adjudicating officers are required to properly Admit that this is a legitimate aim of
identify the legal and biological parents of a child adjudicating officers; deny to the extent
born abroad in part to defend against child trafficking that this implies that child trafficking
efforts. Peek Decl. ¶ 21. concerns are in any way indicated by the
evidence in this case; deny that proof of
a biological relationship is required here.
99. The Office of Adjudication within the Passport Admit that this is an existing regulation;
Services Directorate of the U.S. Department of State’s deny to the extent that Defendant
Bureau of Consular Affairs provides guidance in implies that this is relevant to the facts
situations where a non-legal parent attempts to claim presented in this case; deny that any
they are a child’s legal parent or guardian. Peek Decl. proof of a biological relationship is
¶ 21. required here; deny that Defendant has
19
presented any objective evidence as to

any such training and guidance provided
to adjudicating officers; deny that any
such guidance carries the same force of
law as statutory authority.
20
100. By law, passports may not be issued without the Admit generally.
consent of all legal parents or guardians. Peek Decl. ¶
21.
101. The State Department’s efforts to identify a Admit that this is a general legitimate
child’s true legal parents help address child abduction aim of the State Department; deny to the
and child trafficking concerns and ensure that absent extent that this implies that child
third-party parental rights are not unlawfully abduction or child trafficking concerns
extinguished. Peek Decl. ¶ 21. are in any way indicated by the evidence
in this case; deny that proof of a
biological relationship is in any way
required here.
102. Ascertaining the biological and legal relationship Deny. Proof of biological relationship is
between the applying parents and their alleged child not required by law here, as recognized
born abroad, a burden which the applying parents bear, by both this Court’s rulings and the laws
is therefore required to ensure U.S. citizenship of Congress.
documentation is obtained only by eligible applicants.
Peek Decl. ¶ 21.
Respectfully submitted October 20, 2020.
/s/ Christina Jump

Christina A. Jump
D.C. ID No. TX151
[email protected]
Charles D. Swift
D.C. ID No. 987353
[email protected]
Constitutional Law Center for
Muslims in America
833 E. Arapaho Rd,
Suite 102
Richardson, TX 75081
Phone: (972) 914-2507
Fax: (972) 692-7454
21
IN THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF COLUMBIA
MOHAMMED SABRA, as next friend of Cause No. 19-2090 (EGS)

Baby M.
CIVIL ACTION
Plaintiff/Petitioner,
vs.
Michael Pompeo, in his official capacity as

Secretary of the Department of State, whose
official address is 2201 C St., NW
Washington, DC 20520;
[PROPOSED] ORDER
Upon consideration 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, and Plaintiff’s Combined Opposition thereto, it is hereby ORDERED that
Defendant’s Motion is DENIED in its entirety.
SO ORDERED this __ day of November, 2020.
_____________________________
Hon. Emmet G. Sullivan
United States District Judge

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Case 1:19-cv-02090-EGS Document 92 Filed 11/20/20 Page 1 of 24

UNITED STATES DISTRICT COURT

MOHAMMED SABRA, as next friend of Baby

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

MICHAEL POMPEO, in his official capacity as

PLAINTIFF’S COMBINED MOTION IN OPPOSITION TO

II. BACKGROUND AND STATUTORY FRAMEWORK.................................................... 1

B. Brief Factual and Procedural Background .............................................................................2

II. LEGAL STANDARDS .......................................................................................................... 5

A. Dismissal Pursuant to Rule 12(B)(6) .....................................................................................5

B. Reconsideration Pursuant to Rule 54(B) ................................................................................6

C. Summary Judgment Pursuant to Rule 56 ................................................................................6

III. ARGUMENTS AND AUTHORITIES ................................................................................ 8

A. Plaintiff Has Sufficiently Alleged a Claim Under The APA .................................................8

1. The INA Does Not Provide an Adequate Alternate Remedy ............................................8

C. Defendant is Not Entitled to Summary Judgment on Plaintiff’s RFRA Claim....................16

CERTIFICATE OF SERVICE ................................................................................................. 20

seeking to stay that completed briefing.

II. BACKGROUND AND STATUTORY FRAMEWORK

examiners shall…adjudicate…applications for a [CRBA],” at which point an approved CRBA may

records reflect the fact that she

. Id. at ¶¶ 13-15. Throughout her pregnancy, Mother

citizens. Id. at ¶ 18.

proof of a biological relationship is not statutorily required.

for Baby M. Id. at ¶ 40.

or newly grant summary judgment on Plaintiff’s RFRA claim.

II. LEGAL STANDARDS

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

B. Reconsideration Pursuant to Rule 54(B)

Reconsideration of interlocutory orders is governed by Fed. R. Civ. P. 54(b), which provides

non-final orders). “Due to considerations of finality, predictability and preserving judicial

C. Summary Judgment Pursuant to Rule 56

224 (D.D.C. 2009).

III. ARGUMENTS AND AUTHORITIES

A. Plaintiff Has Sufficiently Alleged a Claim Under The APA

1. The INA Does Not Provide an Adequate Alternate Remedy

argument in nearly identical circumstances on several prior occasions.

and Section 1503 is clear and settled, as discussed below.

Supreme Court’s decision in Cort is…on point.” Id.

burdens Cort faced.” Id. at 11-12.

deny Defendant’s Motion to Dismiss his APA claim.

and Passport application.” Doc. 16.3 at 20-21 (citing 5 U.S.C. § 704).

Plaintiff is now in receipt of a final administrative decision, triggering this Court’s

Ficken v. Golden, 696 F. Supp. 2d 21, 35 (D.D.C. 2010).

actions imposed a substantial burden.

A determination as to whether “a government action substantially burdens a plaintiff’s religious

appropriate in this matter.

C. Defendant is Not Entitled to Summary Judgment on Plaintiff’s RFRA Claim

furthering that interest.

. Doc. 66 at ¶¶ 25, 45.

fertility, . Doc. 78-1 at 40. Plaintiff’s

purposes of a CRBA in this case.

Court and the facts presented in this case.

Defendant’s Renewed Motion for Summary Judgment.

/s/ Christina A. Jump

CM/ECF or via certified mail.

/s/ Christina A. Jump

UNITED STATES DISTRICT COURT