UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) MATTHEW DAVID SLUSS, ) ) Plaintiff, ) ) v. ) Civil Action No. 15-cv-1475-TSC ) DANIEL RENAUD 1 et al., ) ) Defendants. ) ) )

MEMORANDUM OPINION

Plaintiff Matthew David Sluss, proceeding pro se, filed this action for

declaratory and injunctive relief against the United States Department of Homeland

Security, its component Citizenship and Immigration Services (USCIS), and USCIS’s

Associate Director, who at the relevant time period was Donald Monica but is currently

Daniel Renaud. Plaintiff seeks “to remedy the Defendant’s pattern and practice Ultra

Vires Conduct in excess of statutory authority,” which he claims has deprived him of

“equal protection, procedural, and substantive due process rights.” 2 (Compl. ¶ 2.)

1 By substitution pursuant to Fed. R. Civ. P. 25(d). 2 An ultra vires claim is an exception to sovereign immunity, “based on the principle that such . . . action by a federal officer [or an agency] ‘is beyond the officer’s [or agency’s] powers and is, therefore, not the conduct of the sovereign.’” Pollack v. Hogan,

(D.C. Cir. 2012) (quoting Larson v. Domestic & Foreign Commerce Corp.,

(1949)). Thus, the claim may be “for specific relief against officers of the sovereign allegedly acting beyond statutory authority or unconstitutionally.”

(quoting

) (internal quotation marks omitted). See 1 Contending that this action is foreclosed by Plaintiff’s prior case, Sluss v. U.S.

Citizenship & Immigration Servs.,

(D.D.C. 2012) (Sluss I),

Defendants move to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of

Civil Procedure on the grounds of res judicata. (Defs.’ Mot. to Dismiss Pl.’s Compl,

ECF No. 11.) In the alternative, Defendants assert that Plaintiff fails to state a claim

upon which relief can be granted. Because Plaintiff could have presented his ultra vires

and constitutional claims in the previously adjudicated case, the Court agrees that res

judicata applies. Consequently, Defendants’ motion will be granted for the reasons

explained more fully below.

I. BACKGROUND

The factual allegations set out in paragraphs 23-25 of the Complaint are

substantially the same as those recited in Sluss I, in which the court wrote:

On September 7, 2010, plaintiff “officially renounced his citizenship by taking an oath while in Toronto, Ontario, Canada ... at a Services Canada Government Center . . . and receiv[ing] his Canadian SIN (social insurance number).” On September 15, 2010, before he could relocate to Toronto, plaintiff “was subjected to a search and arrest warrents [sic]. [He] has been since incarcerated[ ]” in the United States. On July 8, 2011, plaintiff “sent an affidavit [and] separate request for expatriation” to the USCIS, stating that he is “a dual citizen of the United States and Canada[,]” who is renouncing his U.S. citizenship “[p]ursuant to

(a)(6) . . . .” Thereafter, plaintiff received an unsigned letter dated July 25, 2011, from the State Department advising him that “one can only renounce one’s U.S. citizenship pursuant to Section 359(a)(5) of the Immigration and Nationality Act [“INA”] before a U.S. diplomatic or consular office at a U.S. embassy or consulate abroad[,]” and that questions about

also Hunter v. FERC,

(D.D.C. 2008) (“Courts will exercise their power to review alleged ultra vires agency action when an agency patently misconstrues a statute, disregards a specific and unambiguous statutory directive, or violates a specific command of a statute.”) (citing Griffith v. FLRA,

(D.C. Cir. 1988)). 2 renouncing “one’s U.S. citizenship pursuant to Section 349(a)(6) . . . must be directed to USCIS.” On August 3, 2011, plaintiff “responded” to the State Department's letter and “again” sought to renounce his citizenship under § 1481(a)(6) in a letter to USCIS. When he received no response from either agency, plaintiff wrote both agencies on October 16, 2011, and again on February 13, 2012, “[w]hile preparing the case-in-chief . . . .” Plaintiff filed this civil action on March 19, 2012, from a correctional facility in Baltimore, Maryland. By letter of July 12, 2012, USCIS advised plaintiff that it could not proceed on his request “at this time” because a person renouncing his U.S. citizenship “while present in the United States [must] appear for an interview in person at a designated USCIS office.” USCIS informed plaintiff that it “will not interview potential renunciants by phone or video link, and will not travel to prisons or jails to conduct renunciation interviews,” but that he was free to resubmit his renunciation request and evidence showing that he has “satisfied all the legal requirements for renunciation” after his release from prison.

Sluss,

(internal record citations and footnote omitted) (alterations

in original). In this case, Plaintiff alleges that he has “again attempted to expatriate on

1/13/15, 4/15/15, and on 5/11/15” but “has received no responses from the 2015

letters.” (Compl. ¶¶ 26-27.) Plaintiff stresses, however, that “[t]his is not an action for

mandamus, or review of any administrative order or decision to affirm, amend, modify,

or set aside any part of any order or decision. Instead, this action [] constitute[s] a

broad challenge to the unconstitutional, unlawful, and Ultra Vires practices and

procedures employed by the Defendants, as applied, to Plaintiff[.]” (Id. ¶ 13.)

Plaintiff filed this action on September 9, 2015, labeling his claims as follows:

Count I, Fifth Amendment to the U.S. Constitution; Count II, Fourteenth Amendment to

the U.S. Constitution; Count III, Administrative Procedure Act,

; Count

IV Administrative Procedure Act,

; Count V, Declaratory and Injunctive

Relief,

& Fed. R. Civ. P. 65.

3 II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) permits a party to move for dismissal

on the grounds that the plaintiff has failed “to state a claim upon which relief can be

granted.” Fed. R. Civ. P. 12(b)(6). “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,

(2009) (internal quotation

marks and citation omitted).

“In ruling on a motion to dismiss, the Court may consider not only the facts

alleged in the complaint, but also documents attached to or incorporated by reference in

the complaint and documents attached to a motion to dismiss for which no party

contests authenticity.” Demissie v. Starbucks Corporate Office & Headquarters,

(D.D.C. 2014). Therefore, “‘where a document is referred to in the

complaint and is central to the plaintiff's claim, such a document attached to the motion

papers may be considered without converting the motion to one for summary judgment’

. . . ‘Otherwise, a plaintiff with a legally deficient claim could survive a motion to

dismiss simply by failing to attach a dispositive document on which it relied’. . .

Moreover, a document need not be mentioned by name to be considered ‘referred to’ or

‘incorporated by reference’ into the complaint.” Strumsky v. Washington Post Co.,

(D.D.C. 2012) (citations omitted); see also Long v. Safeway,

Inc.,

(D.D.C. 2012), aff’d,

(D.C. Cir.

2012). In addition, the Court may take judicial notice of public court records,

particularly when assessing a res judicata argument because “all relevant facts are

4 shown by the court’s own records, of which the court takes notice.” Redmon v. United

States Capitol Police,

(D.D.C. 2015) (quoting Hemphill v.

Kimberly-Clark Corp.,

(D.D.C. 2008)). Given that the Court

is relying on its own public records to resolve the motion, it denies Plaintiff’s request to

treat the motion to dismiss as one for summary judgment under Fed. R. Civ. P. 56. (See

Pl.’s Opp’n at 1, ECF No. 17.)

III. ANALYSIS

1. Dismissed Claims

As an initial matter, the Court hereby dismisses all but two counts (one and five)

of the Complaint. Count II is dismissed because the Fourteenth Amendment “applies

only to the states,” Bolling v. Sharpe,

(1954), as opposed to the

federal defendants sued here. Plaintiff has withdrawn Count III, which arises under the

APA’s rulemaking requirements. (Pl.’s Opp’n at 18.) And Plaintiff’s clarification in

the Complaint that he is not seeking review of “any administrative order or decision” or

“to affirm, amend, modify, or set aside any part of any order or decision” negates Count

IV, which arises under the APA’s judicial review provisions set out at

-

06. See Trudeau v. Fed. Trade Comm’n,

(D.C. Cir. 2006) (noting

that “[t]he problem with relying on the APA . . . is that ‘§ 704 limits causes of action

under the APA’ to ‘final agency action.’ Thus, although the absence of final agency

action would not cost federal courts their jurisdiction, . . . it would cost Trudeau his

APA cause of action”) (quoting Center for Auto Safety v. Nat’l Highway Traffic Safety

Admin.,

(D.C. Cir. 2006)). This leaves for resolution Count I, arising

5 under the Fifth Amendment (Compl. at 11) and Count V, for Declaratory and Injunctive

Relief (Id. at 15).

2. Res Judicata

“The preclusive effect of a judgment is defined by claim preclusion and issue

preclusion, which are collectively referred to as ‘res judicata.’” Taylor v. Sturgell,

(2008). “[T]he doctrine is designed to conserve judicial resources, avoid

inconsistent results, engender respect for judgments of predictable and certain effect,

and to prevent serial forum-shopping and piecemeal litigation.” Hardison v. Alexander,

(D.C. Cir. 1981). Under claim preclusion, a final judgment

forecloses “successive litigation of the very same claim, whether or not relitigation of

the claim raises the same issues as the earlier suit.”

(quoting New Hampshire v.

Maine,

(2001). Thus, a final judgment on the merits in one action

“bars any further claim based on the same ‘nucleus of facts’ . . . .” Page v. United

States,

(D.C. Cir. 1984) (quoting Expert Elec., Inc. v. Levine,

, 1234 (D.C. Cir. 1977)). It also bars the litigation of “issues that were or

could have been raised in [the prior] action.” Drake v. FAA,

(D.C. Cir.

2002) (emphasis in original) (citing Allen v. McCurry,

(1980)). As

directly applicable here, “a party cannot escape application of the doctrine by raising a

different legal theory or seeking a different remedy in the new action that was available

to [him] in the prior action.” Duma v. JPMorgan Chase,

(D.D.C. 2011) (citing Apotex, Inc. v. Food & Drug Admin.,

(D.C.

Cir. 2004)).

6 “A subsequent lawsuit is barred by claim preclusion ‘if there has been prior

litigation (1) involving the same claims or cause of action, (2) between the same parties

or their privies, and (3) there has been a final, valid judgment on the merits, (4) by a

court of competent jurisdiction.” Nat. Res. Def. Council v. EPA,

(D.C. Cir. 2008) (quoting Smalls v. United States,

(D.C. Cir. 2006)).

Whether two suits are based on the same claim “‘turns on whether they share the same

nucleus of facts.’”

(quoting Apotex, Inc.,

).

This case involves the same parties and the same nucleus of facts adjudicated in

Sluss I. Thus, the fact that Plaintiff is now challenging on ultra vires or constitutional

grounds “the over-arching USCIS [in-person interview] policy,” rather than the July 12,

2012 determination letter addressed in Sluss I (Pl.’s Opp’n at 2), is inconsequential

under claim preclusion analysis. See Page v. United States,

(D.C.

Cir. 1984) (noting that “‘it is the facts surrounding the transaction or occurrence which

operate to constitute the cause of action, not the legal theory upon which a litigant

relies.’”) (quoting Expert Elec., Inc. v. Levine,

, 1234 (2d Cir. 1977)).

Plaintiff makes three additional arguments for why res judicata should not apply,

none of which the Court finds persuasive.

First, Plaintiff argues that Sluss I was not a final judgment on the merits. (Pl.’s

Opp’n at 3-4.) But that argument is contradicted by the post-judgment ruling in Sluss I

where the court makes clear that “this case was dismissed on the merits of plaintiff’s

APA and mandamus claims, which he did not contest via a Rule 59(e) motion to this

7 Court or an appeal to the Court of Appeals.” Sluss v. United States Citizenhip and

Immigration Servs., No. 12-417 (D.D.C. June 30, 2015), ECF No. 27 at 4.

Second, Plaintiff asserts that at the time he filed Sluss I in 2012, he was unaware

of the “office-only” interview policy. (Pl.’s Opp’n at 5.) While res judicata does not

bar parties from bringing claims based on material facts not in existence at the time of

the original suit, Apotex,

, Plaintiff admits that he learned about the

policy during Sluss I when he received USCIS’ July 12, 2012 determination letter.

(Pl.’s Opp’n at 5.) The letter is dated more than one month before the defendant filed a

motion to dismiss in Sluss I and more than three months before the clerk entered the

final order of dismissal on October 20, 2012. Plaintiff therefore acquired sufficient

information to formulate his ultra vires and constitutional claims during Sluss I, and he

could have brought those claims in the amended complaint he was permitted to file on

August 10, 2012. See Sluss, No. 12-417, ECF No. 13; cf. Stanton v. D.C. Court of

Appeals,

(D.C. Cir. 1997) (“Federal law is clear that post-judgment

events give rise to new claims, so that claim preclusion is no bar.”) (emphasis added)).

Third, Plaintiff argues that “circuit precedent wrongly denied him standing to

press constitutional claims flowing from USCIS refusal to provide him with an in-

person interview other than in the USCIS offices.” (Pl.’s Opp’n at 5.) This argument

has no traction because Plaintiff did not appeal Sluss I. Nor did he appeal the court’s

denial of his motion to vacate judgment under Fed. R. Civ. P. 60(b). See Sluss, No. 12-

417, ECF No. 27. The Supreme Court has explained that the “the res judicata

consequences of a final, unappealed judgment on the merits [are not] altered by the fact

8 that the judgment may have been wrong or rested on a legal principle subsequently

overruled in another case.” Federated Dep't Stores, Inc. v. Moitie,

,

(1981). This is because “[t]he appeal process is available to correct error; subsequent

litigation is not.” 3 Hardison,

.

IV. CONCLUSION

For the foregoing reasons, the Court concludes that this action is barred by res

judicata. Therefore, Defendants’ motion to dismiss is granted. A separate order

accompanies this Memorandum Opinion.

Date: August 25, 2016 Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

3 The Court of Appeals has recognized that “on rare occasions the courts have been willing to override the bar of res judicata for reasons of compelling public policy,” involving, e.g., “paramount questions of constitutional law or exclusive jurisdiction.” Hardison,

- 89 (footnotes omitted). This case, pertaining solely to Plaintiff, comes nowhere near satisfying that standard “to overcome the normal application of res judicata.”

. Even if Plaintiff has a fundamental right to expatriate, as he argues, that right is tempered by at least three realities: (1) A United States citizen has “a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.” Afroyim v. Rusk,

(1967) (emphasis added); (2) Congress, by statute, has conferred upon the Secretary of Homeland Security (previously the State Department) “the discretion to determine whether an individual has adequately renounced affiliation with the United States so as to trigger that right.” Lozada Colon v. U.S. Dep’t of State,

(D.D.C. 1998); and (3) “Congress enjoys ‘broad power over naturalization and immigration.’” Asemani v. U.S. Citizenship & Immigration Servs.,

(D.C. Cir. 2015) (quoting Demore v. Kim,

(2003)). In addition, “[t]o challenge agency action on the ground that it is ultra vires, [Plaintiff] must show a patent violation of agency authority,” which must be “obvious or apparent.” Florida Health Sciences Ctr., Inc. v. Sec’y of Health and Human Serv’s., ___ F.3d ___, ___,

(D.C. Cir. July 26, 2016) (citation and internal quotation marks omitted). Thus, even if Plaintiff could overcome the res judicata barrier, he has pleaded no facts satisfying the ultra vires standard. 9