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HEADNOTES

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COURT’S OPINION

DENNIS K. YAMASE, Chief Justice:

On July 5, 2016, this came before the court on the respondent's Motion to Dismiss, filed February 29, 2016, and the petitioner's Opposition to Motion to Dismiss, filed March 21, 2016. After hearing the parties' presentations, the court requested further briefing on the effect of FSM Public Law No. 19-91, enacted in June 2016, and also ordered the Federated States of Micronesia to include with its briefing the statute or authority that provides for the naturalization of FSM nationals.

On July 19, Fritz Edward Hartmann filed his brief on Public Law No. 19-91, and on July 29, 2016, the defendant filed its Brief for Federated States of Micronesia on Naturalization. The court then considered the matter submitted for its decision.

I. BACKGROUND

Fritz Edward Hartmann was born on January 2, 1983, on Guam, a United States territory, to an FSM citizen Chuukese father and a U.S. citizen mother. His parentage made him an FSM citizen because "[a] person born of parents one or both of whom are citizens of the Federated States of Micronesia is a citizen and national of the Federated States by birth." FSM Const. art. III, § 2; see also 7 F.S.M.C. 202(2)(b). Based on this citizenship, he obtained an FSM passport, which he renewed more than once. Hartmann has never sought or held a U.S. passport. His last FSM passport (No. M105657) was issued October 30, 2007. It expired October 29, 2012.

On January 12, 2016, Hartmann filed an application to renew his FSM passport. By letter dated January 21, 2016, the FSM Department of Justice rejected his application because he had been born on Guam and had one U.S. citizen parent, he was required by law, within three years of his eighteenth birthday, to register with the President or his designee his intent to remain an FSM citizen. The FSM Immigration and Labor Officer in Charge informed Hartmann that since he had not done so and he was 32 years old, he was no longer an FSM citizen but was instead an FSM national and by law, 50 F.S.M.C. 202, ¹ only FSM citizens, but not FSM nationals, were issued FSM passports. He further informed Hartmann that if Hartmann wished to become an FSM citizen, he would have to undergo the

naturalization procedure for FSM nationals.

In a reply letter, Hartmann, through counsel, questioned on what basis FSM Labor and Immigration determined that he was another country's citizen, asserted that he was a citizen of the FSM (because of his father) and of nowhere else, that he had never had a U.S. passport, and that if they did not renew his FSM passport, he would have to take the matter to court. His passport was not renewed. This suit followed.

II. PARTIES' POSITIONS

On February 11, 2016, Hartmann filed a verified Complaint for Declaratory Relief. Hartmann seeks a declaration that he is an FSM citizen; an order requiring the Department of Justice to issue him a passport forthwith; and his attorney's fees.

On February 29, 2016, the Department filed its motion to dismiss. It contends that Hartmann's request that the court declare him an FSM citizen should be denied because Hartmann is not an FSM citizen and is therefore not entitled to an FSM passport. For the contention that Hartmann is not a citizen, the Department relies on FSM Constitution Article III, section 3, which reads:

The Department contends that since Hartmann was obviously a dual, FSM ² and U.S., ³ citizen before he turned twenty-one and since there is no evidence that Hartmann ever renounced his U.S. citizenship, Hartmann lost his FSM citizenship when he turned twenty-one and is thus now an FSM national not entitled to an FSM passport.

Although Hartmann avers that he has never claimed any citizenship other than that of the FSM, he concedes that he has never formally renounced any claim to U.S. citizenship. During the July 5, 2016 hearing, Hartmann's counsel mentioned the upcoming March 2017 national referendum on whether to amend the Constitution to permit FSM persons to hold dual citizenship. He stated that Hartmann did not wish to pursue naturalization and renounce any claim to U.S. citizenship only to have the Constitution amended shortly thereafter to permit dual citizenship, which he would have given up any right to claim.

III. PUBLIC LAW NO. 19-91

FSM Public Law No. 19-91 added the [new] last sentence to the current version of 7 F.S.M.C. 203 so that it now reads:

Hartmann asserts that Public Law No. 19-91's amendment to 7 F.S.M.C. 203 appears tailor-made for him. He avers that he has renewed his FSM passport twice in a row since he turned eighteen.

The court notes that an FSM passport usually has a five-year duration. 50 F.S.M.C. 205(1). ⁴ Thus, Hartmann's previous (to the 2007) passport would have been renewed some time in 2002 (or earlier). In 2002, Hartmann was only nineteen years old. At that time, despite any claim he may have had to another country's citizenship and passport, Hartmann would have unquestionably been an FSM citizen entitled to an FSM passport, even if he also held a U.S. passport (although there is no indication that he did.) He would not have lost his FSM citizenship and become an FSM national instead until January 2, 2004.

It is thus debatable whether the new 7 F.S.M.C. 203 could apply to Hartmann because he has renewed his FSM passport only once since he turned twenty-one – that is, since his citizenship could be questioned so that he would be in need of a presumption, rebuttable or otherwise, to show his entitlement to FSM citizenship.

However, since Hartmann has conceded, through his counsel's admission, that he has not formally renounced any claim he may have to U.S. citizenship and does not wish to do so now, it would seem that any presumption that might have been created by 7 F.S.M.C. 203 as amended, has been rebutted.

IV. NATURALIZATION

The Department contends that Hartmann's avenue of relief is to go through the naturalization process. Pursuant to statute:

7 F.S.M.C. 204(1). The Department states that, although no regulations have been promulgated, the process is that the naturalization applicant is to submit a declaration on "Form I" showing the FSM national's intent to become an FSM citizen and attach various documents, including proof of renunciation of foreign citizenship. The Division of Immigration then reviews and investigates all the documents' authenticity and conducts a criminal background check of the applicant. After that, the applicant undergoes the indigenous language examination. All the supporting documents are then forwarded to the President's office, which sends a letter to the applicant inviting the applicant to a naturalization ceremony, where the applicant will take the oath of citizenship ("Form II"). The last step includes the filing with the Department of Justice the Federated States of Micronesia Certification of Naturalization ("Form III"). Once all these steps are successfully completed, the FSM national applicant becomes an FSM citizen.

The court can see the danger here. The naturalization applicant must first renounce, and prove that he or she has renounced, his or her other citizenship, but apparently can still be denied FSM citizenship (if the applicant has been convicted of a felony or does not pass the indigenous language test). Under the present circumstances, that would leave the applicant as an FSM national with no right to an FSM passport or to a passport from any other country either, effectively denying the FSM national of any ability to travel.

That raises the question whether it might be unconstitutional to deny an FSM passport to an FSM national. Naturally, if any passports were issued to FSM nationals, those passports would need to be clearly marked as such so that the passport holder could not use that passport to exercise rights reserved only to FSM citizens.

V. SUMMARY JUDGMENT

When a party in support of or in opposition to a Rule 12 motion to dismiss submits matters outside the pleadings and the court does not exclude those matters, the motion will be treated as one for summary judgment and will be disposed of as provided in Rule 56, once all parties have been given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. Palasko v. Pohnpei, 20 FSM R. 90, 93 (Pon. 2015); Arthur v. Pohnpei, 16 FSM R. 581, 593 (Pon. 2009); Rudolph v. Louis Family, Inc., 13 FSM R. 118, 125 (Chk. 2005).

Since the court has not excluded the matters that were presented outside the pleadings, the court therefore treats the motion as one for summary judgment. The court concludes that Hartmann is not entitled to a declaration that he is an FSM citizen and thus to the renewal of his FSM passport on the ground he claims ? that he is an FSM citizen. Fritz Edward Hartmann is an FSM national, not a citizen. The Department, however is not entitled to summary judgment because the parties have not had a reasonable opportunity to present all material made pertinent to the issue of whether an FSM national has a right to an FSM passport.

VI. CONCLUSION

Accordingly, the FSM Department of Justice is granted summary judgment on its motion that the court cannot grant Hartmann a declaratory judgment that he is an FSM citizen. The FSM Department of Justice is not granted summary judgment that Fritz Edward Hartmann cannot have his passport renewed. The parties will therefore have until October 31, 2016, to complete discovery and until November 22, 2016, to file and serve dispositive motions.