Here’s the background to an interesting ruling by a divided panel of conservative D.C. Circuit judges yesterday (in Farrell v. Blinken):
Gerald Farrell was born a United States citizen. In 2004, he naturalized as a Swiss citizen and alleges that he did so with the intent of relinquishing his U.S. citizenship. In 2013, he was arrested in Spain and extradited to the United States for crimes that he committed in the United States in 2003. He pleaded guilty and was sentenced to eight years of imprisonment. While in prison, he attempted to obtain from the State Department a certificate of loss of American nationality, in the hope that such a certificate would enable him to complete the last part of his prison sentence in Switzerland. But the State Department informed him that he had to fill out forms in person at an American consulate abroad in order to receive the certificate. He was of course unable to satisfy that requirement while imprisoned in the United States. The district court upheld the in-person requirement. While his case was on appeal, Farrell was released from prison and returned to Switzerland.
In her majority opinion, Judge Neomi Rao, joined by Judge Justin Walker, ruled that Farrell had standing to pursue his appeal, notwithstanding his release from prison and return to Switzerland. According to Rao, under circuit precedent the government’s failure to recognize expatriation (relinquishment of American citizenship) constitutes an injury in fact. In dissent, Judge Gregory Katsas argues that the supposed circuit precedent involved an alleged injury of an inability to expatriate, not of the mere absence of governmental recognition of expatriation. Applying the Supreme Court’s recent ruling in TransUnion LLC v. Ramirez, he argues that the government’s refusal to issue Farrell a certificate of loss of nationality does not threaten him with any concrete injury.
I will leave it to interested readers to explore more fully the back and forth between Rao and Katsas on standing.
(Rao goes on to rule that the State Department acted arbitrarily in denying Farrell a certificate of loss of nationality and orders it to reconsider his request. Now that Farrell is out of prison, I wonder if it would be simpler for him to just go to a consulate and fill out the forms—if, that is, he has any continuing interest in doing so.)