JOHN D. BATES, District Judge.
Linda Yaman, a dual citizen of the United States and Turkey, applied for United States passports for her two minor daughters, also dual American and Turkish citizens.
Between January 2003 and December 2004, Ms. Yaman lived in Turkey with her now ex-husband and two minor daughters, EY and KY. Compl. ¶ 12. Ms. Yaman grew suspicious that her husband was sexually abusing at least one of their daughters, and began divorce proceedings in Turkish Family Court. Compl. ¶ 12. In March 2006, the Turkish Family Court granted Mr. Yaman, a Turkish national, full custody of the two children. Compl. ¶ 13. Mr. Yaman did not exercise his custody rights, however, and EY and KY continued to live with their mother. Compl. ¶ 14. In August 2007, after Turkish courts denied Ms. Yaman's final appeal of the custody order, Ms. Yaman fled Turkey for an undisclosed European location with her two daughters. Compl. ¶ 15.
Mr. Yaman maintains physical possession of KY and EY's original U.S. passports, and refuses to provide them to Ms. Yaman. Compl. ¶ 16. He also refuses to consent to the issuance of new passports to the two girls. Compl. ¶ 16.
In May 2009, Ms. Yaman applied for U.S. passports for her daughters, and sought a waiver of the requirement that both parents must consent to the issuance of a child's passport. Compl. ¶¶ 17-18. The State Department denied the applications. Compl. ¶ 19. Ms. Yaman took an administrative appeal, Compl. ¶ 19, and the State Department held a hearing, over which a State Department hearing officer presided, Compl. ¶¶ 20-22. Following this hearing, the hearing officer prepared findings of fact and a recommendation on the girls' passport applications. Compl. ¶ 23. He did not disclose the findings and recommendation to Ms. Yaman.
On March 15, 2010, the State Department's Deputy Assistant Secretary for Passport Services issued the Department's final decision on the girls' passport applications. Compl. ¶ 25. This decision partially reversed the Department's earlier denial of the girls' applications, and granted "no fee direct return limited validity passports to the United States for EY and KY." Compl. ¶ 26. To obtain these passports, Ms. Yaman was directed to appear in person at a U.S. Consulate by April 29, 2010. Compl. ¶ 27. The girls' passports would expire five days after they were picked up. Compl. ¶ 27. Ms. Yaman's daughters accepted the conditional passports, and are now living in the United
Following the Deputy Assistant Secretary's final decision, Ms. Yaman asked the State Department hearing officer to provide her with a copy of his findings and recommendation. Compl. ¶ 30. The Hearing Officer denied this request, as well as Ms. Yaman's motion for reconsideration. Compl. ¶¶ 31, 33. The Deputy Assistant Secretary also denied Ms. Yaman's request. Compl. ¶¶ 34-35. Ms. Yaman then filed this action, seeking to obtain a copy of the hearing officer's written findings and recommendation. Compl., Prayer ¶ a.
All that the Federal Rules of Civil Procedure require of a complaint is that it contain "`a short and plain statement of the claim showing that the pleader is entitled to relief,' in order 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555-56, 127 S.Ct. 1955; see also Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955); accord Atherton v. Dist. of Columbia Office of the Mayor, 567 F.3d 672, 681 (D.C.Cir.2009). A complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. This amounts to a "two-pronged approach" under which a court first identifies the factual allegations entitled to an assumption of truth and then determines "whether they plausibly give rise to an entitlement to relief." Id. at 1950-51.
The notice pleading rules are not meant to impose a great burden on a plaintiff. See Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-13, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). When the sufficiency of a complaint is challenged by a motion to dismiss under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should be liberally construed in his or her favor. See Leatherman v. Tarrant County Narcotics & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C.Cir.1979); see also Erickson, 551 U.S. at 94, 127 S.Ct. 2197 (citing Twombly, 550 U.S. at 555-56, 127 S.Ct. 1955). The plaintiff must be given every favorable inference that may be drawn from the allegations
Ms. Yaman's suit arises under the Administrative Procedures Act ("APA"). Under the APA, a court must "hold unlawful and set aside agency action, findings, and conclusions" that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A), in excess of statutory authority, id. § 706(2)(C), or "without observance of procedures required by law," id. § 706(2)(D). A court must also "compel agency action unlawfully withheld or unreasonably delayed." Id. § 706(1). The court's scope of review, however, is narrow. See Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The court is to presume that the agency's action is valid. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). And the "court is not to substitute its judgment for that of the agency." State Farm, 463 U.S. at 43, 103 S.Ct. 2856.
Before turning to the merits of this case, the Court must address two preliminary matters. First, during briefing on the pending motions, Ms. Yaman's daughters accepted the State Department's conditional passports and are now living in the United States. Def.'s Mot. at 6-7. Accordingly, the State Department contends that this case is moot. Id. "For a case to become moot," however, "it must be `impossible for the court to grant any effectual relief whatever.'" Cody v. Cox, 509 F.3d 606, 608 (D.C.Cir.2007) (quoting Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992)). Ms. Yaman's complaint asks the Court to require the State Department to "release to [her] the Findings of Fact and Recommendation of [the] Hearing Officer ... in regards to the appeal of the initial denial of passport applications of EY and KY." Compl., Prayer ¶ a. Although EY and KY are now in the United States, and their passports have expired, there is no reason why the Court cannot grant the precise relief Ms. Yaman seeks. Accordingly, this case is not moot.
Second, the State Department suggests that Ms. Yaman lacks standing to bring suit on behalf of her minor children because she does not have custody over them. See Def.'s Mot. at 7. It cites Foretich v. Glamour, 741 F.Supp. 247, 249 (D.D.C.1990), for the proposition that, under District of Columbia law, only a custodial parent may bring a "next friend" suit. See Def.'s Mot. at 7. But District of Columbia law does not apply here; federal law does. And under federal law, a party may bring suit on behalf of another if she has "a sufficiently concrete interest in the outcome of the issue in dispute," she is "a close relation to the third party," and there "exist[s] some hindrance to the third party's ability to protect his or her own interests."
The Court accordingly turns to the merits of Ms. Yaman's suit. Under the APA, "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. Where, as here, there is no statutory basis to review agency action, "[t]he form of proceeding for judicial review is . . . any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction." Id. § 703.
Ms. Yaman challenges the State Department's decision to withhold from her the hearing officer's findings of fact and recommendation. She concedes that "the relevant passport regulations are silent as to the transmission of the Findings to the parties." Pl.'s Mem. in Supp. of Mot. for P.I. ("Pl.'s Mem.") [Docket Entry 5], at 11. But Ms. Yaman correctly observes that, in making a final decision as to the two girls' passport applications, the Deputy Assistant Secretary "reviewed and considered . . . the Findings of Fact and Recommendation of the hearing officer." Pl.'s Mem., Decl. of Beth Boland, Ex. 1 ("State Dep't Final Decision"), 4; see also 22 C.F.R. § 51.74 (requiring the Deputy Assistant Secretary to review the hearing officer's findings of fact and recommendations). Ms. Yaman also notes that the hearing officer's findings of fact and recommendation may include various credibility determinations and evidentiary rulings. Pl.'s Mem. at 10. She thus argues that "the Findings are an important part of the administrative record" that must be turned over in order for Ms. Yaman to determine whether to appeal the State Department's final decision as to the girls' passports. Id. at 9.
The State Department responds that it need not disclose the hearing officer's findings and recommendation because they are protected under the deliberative process privilege.
But the deliberative process privilege does not apply to all pre-decisional documents created during the deliberative process. Rather, to be privileged, a document "must have been `a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters. Put another way, pre-decisional materials are not exempt merely because they are pre-decisional; they must also be a part of the agency give-and-take of the deliberative process by which the decision itself is made.'" Cobell v. Norton, 213 F.R.D. 1, 5 (D.D.C. 2003) (quoting Vaughn, 523 F.2d at 1144). Therefore, in reviewing whether an agency properly withheld documents under the deliberative process privilege, the primary question is whether "disclosure of [the] materials would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." Formaldehyde Inst. v. Dep't of Health & Human Servs., 889 F.2d 1118, 1122 (D.C.Cir. 1989). It is the government's burden to establish that the privilege applies. See Vaughn, 523 F.2d at 1146.
The Court concludes that the hearing officer's findings and recommendation are deliberative, and thus exempt from disclosure.
Ms. Yaman makes two primary arguments for why the deliberative process privilege should not apply in this case. First, she notes that the privilege is inapplicable where "an agency chooses expressly to adopt or incorporate by reference" otherwise privileged material. Sears, Roebuck & Co., 421 U.S. at 161, 95 S.Ct. 1504. But here, the Deputy Assistant Secretary merely "reviewed and considered" the hearing officer's findings of fact and recommendation. See State Dep't Final Decision at 4. Her final decision gives no indication that she adopted any of the hearing officer's findings or recommendations. Indeed, except for a brief acknowledgment that she "reviewed and considered" the document, the Deputy Assistant Secretary never discusses the hearing officer's report in her final decision. See id. at 1-4.
Second, Ms. Yaman contends that the hearing officer "is the independent and final authority over the critical evidentiary issues and . . . such rulings are not subject to comment or deliberation." Pl.'s Reply at 12. Thus, she posits, those rulings are necessarily not deliberative. See id. But whatever evidentiary rulings the hearing officer may have made, they were not adopted in the agency's final decision. Hence, they are merely part of the process by which the hearing officer arrived at his pre-decisional recommendation. Put another way, if Ms. Yaman appeals the Deputy Assistant Secretary's decision concerning her daughter's passports, a court will review only the Deputy Assistant Secretary's final decision, and not the hearing officer's report. See In re Subpoena Duces Tecum, 156 F.3d at 1279.
Nevertheless, "[t]he deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need." In re Sealed Case, 121 F.3d 729, 737 (D.C.Cir.1997). "Accordingly, once the elements of the privilege have been met, the burden shifts to the party opposing the privilege to establish that its need for the information outweighs the interest of the government in preventing disclosure of the information." Cobell, 213 F.R.D. at 5. To evaluate whether a plaintiff's need overcomes the privilege, "the district court must undertake a fresh balancing of the competing interests, taking into account factors such as the relevance of the evidence, the availability of other evidence, the seriousness of the litigation, the role of the government, and the possibility of future timidity by government employees." In re Sealed Case, 121 F.3d at 737-38 (internal quotation marks omitted).
Ms. Yaman briefly argues that, even if the deliberative process privilege applies, her need for the documents outweighs any government interest in secrecy. See Pl.'s Reply at 15-16. The Court disagrees. Ms. Yaman seeks the hearing officer's findings of fact and recommendation in order to determine whether to appeal the State Department's final decision. But she is only slightly constrained in that assessment. It is the agency's final decision — and only that final decision — that will be reviewed on appeal. Thus, the hearing officer's report offers only limited value in determining whether to take an appeal. On the other hand, this case is tinged with foreign policy implications. See State Dep't Final Decision at 3 ("[T]he Department does not intend to resolve this matter in such a way that would permit Ms. Yaman to continue to evade Turkish legal authorities or deprive Mr. Yaman of his right to file a petition for return of the children to Turkey under the Hague Abduction Convention."). And the State Department has a substantial interest in maintaining the confidentiality of deliberative documents that do not reflect the Department's official foreign policy.
Accordingly, it is hereby
