                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



 LINDA YAMAN, on behalf of herself and
 minors KY and EY,

        Plaintiff,
                v.                                        Civil Action No. 10-0537 (JDB)
 UNITED STATES DEPARTMENT OF
 STATE, et al.,

        Defendants.


                           MEMORANDUM OPINION & ORDER

       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. After an

extended administrative process, the State Department held a hearing to review Ms. Yaman's

passport applications. Following the hearing, the hearing officer prepared written findings of fact

and issued a recommendation on the applications to the State Department's Deputy Assistant

Secretary for Passport Services. After reviewing and considering the findings and

recommendation, the Deputy Assistant Secretary granted the girls limited passport rights.

Weighing whether to appeal the Deputy Assistant Secretary's decision, Ms. Yaman asked for the

hearing officer's written findings and recommendation, but the State Department denied her

request. Ms. Yaman then filed a complaint, seeking to compel the State Department to disclose

the hearing officer's written report. The State Department has now moved to dismiss Ms.

Yaman's complaint. For the reasons detailed below, the Court will grant the State Department's



                                                -1-
motion to dismiss.1

                                        BACKGROUND

       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.


       1
         Ms. Yaman has also moved for a preliminary injunction to compel the State Department
to disclose the hearing officer's report. See Pl.'s Mot. for P.I. [Docket Entry 5], at 1. Because
the Court grants the State Department's motion to dismiss, it need not reach Ms. Yaman's motion.

                                                  -2-
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 States. Def.'s Mot. to Dismiss and Opp'n to Pl.'s Mot. ("Def.'s

Mot.") [Docket Entry 10], Decl. of Brenda Sprague ¶ 6.

       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.2

                                    STANDARD OF REVIEW

       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



       2
         The question whether the State Department properly granted the girls only restricted
passports is not before this Court. It appears that Ms. Yaman may appeal that State Department
decision by not later than May 14, 2010. See 28 U.S.C. § 2344 (final agency orders may be
appealed within sixty days).

                                                  -3-
'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

(1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (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; see also Papasan v. Allain, 478 U.S. 265, 286 (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, 129 S. Ct. 1937, 1949 (2009) (quoting

Twombly, 550 U.S. at 570); 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 (2005); see also Swierkiewicz v. Sorema N.A., 534

U.S. 506, 512-13 (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 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968

(D.C. Cir. 1979); see also Erickson, 551 U.S. at 94 (citing Twombly, 550 U.S. at 555-56). The


                                                 -4-
plaintiff must be given every favorable inference that may be drawn from the allegations of fact.

See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d

1111, 1113 (D.C. Cir. 2000). However, "the court need not accept inferences drawn by plaintiffs

if such inferences are unsupported by the facts set out in the complaint." Kowal v. MCI

Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nor does the court accept "a legal

conclusion couched as a factual allegation," or "naked assertions [of unlawful misconduct]

devoid of further factual enhancement." Iqbal, 129 S. Ct. at 1949-50 (internal quotation marks

omitted); see also Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 n.4

(D.C. Cir. 2008) (the court has "never accepted legal conclusions cast in the form of factual

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 (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 (1971). And the "court is

not to substitute its judgment for that of the agency." State Farm, 463 U.S. at 43.

                                          DISCUSSION

       Before turning to the merits of this case, the Court must address two preliminary matters.


                                                -5-
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 (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." Power v. Ohio,

499 U.S. 400, 411 (1991) (internal quotation marks omitted). Ms. Yaman satisfies these

requirements. Although she may not have formal custody over her girls, Ms. Yaman has a

significant interest in proceedings related to her daughters' passport applications. Further, Ms.


                                                  -6-
Yaman is a close relation to her children, and her daughters, six and eight years old, are hindered

from bringing suit on their own. Ms. Yaman therefore may sue on behalf of her children.

       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




                                                 -7-
Department's final decision as to the girls' passports. Id. at 9.3

        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.4 The

deliberative process privilege exempts from disclosure "'advisory opinions, recommendations,

and deliberations that are part of a process by which governmental decisions and policies are

formulated.'" Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8-9



       3
         It is not clear that the APA supplies a cause of action for Ms. Yaman's suit. As relevant
here, the APA permits courts to review "final agency action for which there is no other adequate
remedy in a court," 5 U.S.C. § 704, and to compel "agency action unlawfully withheld or
unreasonably delayed," id. § 706(1). The Court is skeptical that either of these provisions apply
here. See Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) (an agency unlawfully
withholds action "only where a plaintiff asserts that an agency failed to take a discrete agency
action that it is required to take"); Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (to be "final,"
an agency action must "mark the consummation of the agency's decisionmaking process," and it
must either determine "rights or obligations" or occasion "legal consequences" (citations
omitted)); Sharkey v. Quarantillo, 541 F.3d 75, 90 n.14 (2d Cir. 2008) (there is an adequate
remedy in a court "when there are 'special and adequate review procedures' that permit an
adequate substitute remedy" (quoting Bowen v. Massachusetts, 487 U.S. 879, 903 (1988))).
Nonetheless, the State Department has not argued these points, and the Court will assume that
the APA supplies a cause of action in this case.
       4
         The State Department argues that the hearing officer's findings and recommendation are
exempt from disclosure under the Freedom of Information Act's ("FOIA") deliberative process
exemption. See Def.'s Mot. at 9-11. Indeed, the State Department contends that Ms. Yaman's
suit should be dismissed because she must first pursue a claim under FOIA. Id. at 7-8. The
Court need not resolve whether Ms. Yaman should have initially sought relief under FOIA,
however. As detailed below, the Court finds that the hearing officer's findings and
recommendation are properly withheld under the common law deliberative process privilege,
which is coextensive with FOIA's deliberative process exemption. See Rockwell Int'l Corp. v.
Dep't of Justice, 235 F.3d 598, 601 (D.C. Cir. 2001) ("Courts have construed [FOIA's
deliberative process exemption] to encompass the protections traditionally afforded certain
documents pursuant to evidentiary privileges in the civil discovery context, including materials
which would be protected under the . . . executive deliberative process privilege." (internal
quotation marks omitted)); Vaughn v. Rosen, 523 F.2d 1136, 1146 (D.C. Cir. 1975) ("We
consider [FOIA's deliberative process exemption] as basically a codification of the common
sense-common law privilege.").

                                                  -8-
(2001) (quoting Nat'l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 148 (1975)).

Therefore, for a document to fall within this exception, it must be both pre-decisional and

deliberative. Protecting such documents from disclosure "encourages frank discussion of policy

matters, prevents premature disclosure of proposed policies, and avoids public confusion that

may result from disclosure of rationales that were not ultimately grounds for agency action."

Wolfson v. United States, 672 F. Supp. 2d 20, 29 (D.D.C. 2009).

       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




                                                -9-
deliberative, and thus exempt from disclosure.5 The hearing officer's report, submitted to the

official directly in charge of the State Department's final passport decisions, is a

"recommendation[]" that is "part of [the] process by which governmental decisions and policies

are formulated." Klamath Water Users Protective Ass'n, 532 U.S. at 8-9; see Schlefer v. United

States, 702 F.2d 233, 238 (D.C. Cir. 1983) ("Intra-agency memoranda from 'subordinate' to

'superior' on an agency ladder are likely to be more 'deliberative' in character than documents

emanating from superior to subordinate."). And the report "expresses opinions on legal or policy

matters," Vaughn, 523 F.2d at 1144, as it represents the hearing officer's conclusions as to

whether there exist "compelling humanitarian circumstances where the minor's lack of a passport

would jeopardize the health, safety, or welfare of the minor," 22 C.F.R. § 51.28(a)(5)(ii).

Further, the document "reflect[s] the personal opinions of the writer rather than the policy of the

agency," Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980),

because the State Department's official policy is manifested only in the Deputy Assistant

Secretary's final ruling, see In re Subpoena Duces Tecum, 156 F.3d 1279, 1279 (D.C. Cir. 1998).

Given its deliberative nature, then, requiring public disclosure of this document will no doubt

"expose [the State Department'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., 889 F.2d at 1122 (D.C. Cir. 1989).

       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



       5
         Ms. Yaman concedes that the findings of fact and recommendation are "pre-decisional."
Pl.'s Reply in Supp. of Mot. ("Pl.'s Reply") [Docket Entry 12], at 11.

                                                 -10-
chooses expressly to adopt or incorporate by reference" otherwise privileged material. Sears,

Roebuck & Co., 421 U.S. at 161. 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 1279.6 The Court concludes, therefore,


        6
           The Court declines to follow Williams v. City of Boston, 213 F.R.D. 99 (D. Mass.
2003), cited by Ms. Yaman, which found that findings of fact and recommendations by police
disciplinary hearing officers were not exempt from disclosure. That court held that the hearing
officers' reports were not deliberative because they were "the final decision of the hearing officer
who, presumably, would stand by his or her decision." Id. at 101. And they were not "'advisory'
or 'draft' opinion[s] in the sense that [they are] subject to further rewriting or rethinking before
[they are] issued." Id. at 101-02. Williams is unpersuasive, however, as its logic would
eviscerate the deliberative process privilege: nearly all agency documents sent by a subordinate to
a superior during the deliberative process are the "final decision" of the employee who writes
them, and are not "subject to further rewriting or rethinking" before they are distributed within
the agency for consideration in the decisionmaking process.

                                                -11-
that the hearing officer's findings of fact and recommendation are exempt from disclosure under

the common law deliberative process privilege.

       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


                                                 -12-
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.7

        Accordingly, it is hereby

        ORDERED that [14] Ms. Yaman's motion for leave to file a sur-reply is GRANTED,

and the Clerk of Court shall docket the proposed sur-reply; it is further

        ORDERED that [5] Ms. Yaman's motion for a preliminary injunction is DENIED; and it

is further

        ORDERED that [10] the State Department's motion to dismiss is GRANTED, and this

case is hereby DISMISSED.

        SO ORDERED.

                                                                             /s/
                                                                     JOHN D. BATES
                                                                United States District Judge

Dated: May 5, 2010




        7
           The Court need not reach the State Department's argument, raised for the first time in its
reply brief, that this case should be dismissed because Mr. Yaman is an indispensable party to
this litigation. See Def.'s Reply in Supp. of Mot. [Docket Entry 13], at 8.

                                                -13-
