Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

KELSO v. U.S. DEP'T OF STATE

April 29, 1998

JOSEPH ROBERT KELSO, Plaintiff,
v.
U.S. DEPARTMENT OF STATE, Defendant.



The opinion of the court was delivered by: KOLLAR-KOTELLY

MEMORANDUM OPINION

 Plaintiff Joseph Robert Kelso, a citizen of the United States currently located in the United Kingdom and the alleged subject of a federal warrant of arrest, brings this action to vacate the State Department's decision to revoke his passport. Mr. Kelso attacks the validity of the State Department's revocation on three grounds: (1) that the absence of a pre-revocation hearing violates the Fifth Amendment's Due Process Clause; (2) that the regulations empowering the Secretary of State to revoke passports exceeds her delegated authority; and (3) that notwithstanding whatever legal infirmities may plague them, the State Department's own regulations compel the Secretary to return Mr. Kelso's passport. Before the Court are Mr. Kelso's Motion for a Temporary Restraining Order or Preliminary Injunction, the State Department's Opposition thereto, Plaintiff's Reply, and Defendant's Supplemental Opposition. *fn1" Having considered the oral arguments, pleadings, affidavits, controlling law, legislative history, and administrative practice, the Court grants Plaintiff's Motion for a Preliminary Injunction for the reasons, and to the extent, set forth below.

 I. BACKGROUND

 On May 8, 1990, the Los Angeles passport agency issued passport number 033549178 to Plaintiff Joseph Robert Kelso. See Am. Compl. P 4. Having used his passport on numerous occasions since 1990, Mr. Kelso most recently presented it to British authorities to enter the United Kingdom on December 27, 1997. See id. P 5. Shortly after Mr. Kelso arrived in the United Kingdom, the United States District Court for the Western District of Washington issued a warrant of arrest for an individual named Joseph R. Kelso. See Def.'s Opp'n at Ex. 1 (Warrant for Arrest in United States v. Joseph R. Kelso, CR98-11C, Jan. 8, 1998, (W.D. Wash.)). *fn2" On January 20, 1998, the Federal Bureau of Investigation forwarded a formal request to the State Department to revoke Plaintiff's passport. See id. at Ex. 2 (letter from Special Agent Cary L. Vanderberry to Greg Hays, Jan. 20, 1998); id. at Ex. 3 (memorandum from Greg Hays to Sharon Paler-Royston, Director of the Legal Division, Office of Passport Policy, Planning and Advisory Services, Passport Services, Bureau of Consular Affairs, Department of State, Jan. 20, 1998). The FBI's request indicated that the Joseph R. Kelso whom they sought was a convicted federal felon who previously had been a fugitive from justice for two years during the 1980s and was believed to have fled recently to the United Kingdom due to the investigation that precipitated the warrant for arrest. See id. at Ex. 2.

 On January 27, 1998, George W. Brazier, Consul and First Secretary at the U.S. Embassy in London, transmitted a letter to Plaintiff that informed him that the State Department had revoked his passport pursuant to 22 C.F.R. § 51.70(a)(1) and § 51.72(a). See Pl.'s Mot. for TRO or Prelim. Inj. at Ex. A (letter from George W. Brazier to Joseph Robert Kelso, Jan 27, 1998). Those regulations, taken together, empower the Secretary of State to revoke a passport when a national is the subject of a federal warrant of arrest for a felony. *fn3" As authorized under 22 C.F.R. § 51.81, Plaintiff, through his British solicitors, requested a post-revocation hearing to contest the State Department's action on January 29, 1998. See id. at Ex. B (letter from Braunstein & Co to George W. Brazier, Jan 29, 1998). In a series of correspondence with Plaintiff's counsel, Consuelo Pachon, Attorney Adviser in the Office of Passport Policy and Advisory Services, attempted to arrange a hearing. See id. at Ex. D (letter from Consuelo Pachon to Leon Braunstein & Nancy Luqui, Feb. 12, 1998); id. at Ex. E (letter from Consuelo Pachon to Kathleen H. McGuan, Mar. 3, 1998). By March 3, 1998, Ms. Pachon had enlisted John Foarde to act as the passport-revocation Hearing Officer and suggested several potential available dates during which to conduct the hearing. See id. at Ex. E (letter from Consuelo Pachon to Kathleen H. McGuan, Mar. 3., 1998) ("I suggest that [the hearing] be held March 25, 26 or 27, or the week of March 30."). On March 16, 1998, however, Mr. Foarde informed Ms. Pachon that he felt compelled to recuse himself from the proceedings due to a conflict of interest. See Def.'s Opp'n (Aff. of Consuelo Pachon). Mr. Foarde, an Attorney Adviser in the Office of Assistant Legal Adviser for Consular Affairs, believed that it would be inappropriate to serve as a hearing officer in a case in which his office might be requested to provide a legal opinion. See id. Ms. Pachon then attempted to contact another individual who had indicated previously a willingness to serve as a hearing officer. See id. This potential substitute hearing officer never returned Ms. Pachon's phone call, and Ms. Pachon failed to pursue the matter due to a personal medical emergency. See id.

 Arguing that 22 C.F.R. § 51.81 requires the State Department to have convened a hearing within sixty days of his January 29, 1998 request, Mr. Kelso filed suit in this Court on April 7, 1998 to vacate his passport revocation. The Court entertained oral argument on this matter on April 23, 1998.

 II. DISCUSSION

 A. Standards Governing the Grant of Preliminary Injunctions

 For Mr. Kelso to obtain the temporary injunctive relief that he seeks, he must establish (1) a substantial likelihood of success on the merits, (2) that he would suffer irreparable injury if the injunction were not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction. See CityFed Fin. v. Office of Thrift Supervision, 313 U.S. App. D.C. 178, 58 F.3d 738, 746 (D.C. Cir. 1995); Sea Containers Ltd. v. Stena AB, 281 U.S. App. D.C. 400, 890 F.2d 1205, 1208 (D.C. Cir. 1989). No single factor is dispositive; rather, the Court "must balance the strengths of the requesting party's arguments in each of the four required areas." CityFed, 58 F.3d at 747. This calculus reflects a sliding-scale approach in which an injunction may issue if the arguments for one factor are particularly strong "even if the arguments in other areas are rather weak." Id. Thus, this Circuit has held that "an injunction may be justified, for example, where there is a particularly strong likelihood of success on the merits even if there is a relatively slight showing of irreparable injury." Id.

 B. Plaintiff Has Demonstrated a Strong Likelihood of Success on the Merits

 Mr. Kelso attacks the validity of the Secretary's decision to revoke his passport on three independent grounds. In Subsections II.B.1 and II.B.2 of this Memorandum Opinion, the Court rejects Plaintiff's first two arguments. Although the Court determines that 22 C.F.R. § 51.70(a)(1) and § 51.72(a) are both constitutional and promulgated with proper congressional authorization, Mr. Kelso has established a strong likelihood of success in demonstrating that the Department of State violated its own regulations when it failed to hold a post-revocation hearing within sixty-days of his request.

 1. The Regulations Comport with the Fifth Amendment's Due Process Clause

 Plaintiff's first attack on the State Departments regulations is the easiest to dispose of. Mr. Kelso posits that because a passport is proof of citizenship, each and every decision to revoke a passport necessarily affects a passport holder's fundamental right of citizenship and thereby necessitates a pre-revocation hearing. This, of course, is a logical non sequitur. To be sure, 22 U.S.C. § 2705 provides that a passport has the "same force and effect as proof of United States citizenship as certificates of naturalization or of citizenship issued by the Attorney General or by a court having naturalization jurisdiction." § 2705. Yet to admit that passports are evidence of citizenship is to say nothing about whether their revocation implicates the fundamental right of citizenship. Plaintiff interprets § 2705 as if it provided that a passport was the exclusive method of demonstrating citizenship. Were that interpretation correct, Plaintiff would certainly be justified in arguing that his passport revocation affected his right of citizenship. But § 2705 simply mandates that passports, like other certificates that evince citizenship, should be considered valid indicia of citizenship. Thus, although a passport holder may be deprived of proving his citizenship in one way when his passport is revoked, he has other methods of establishing citizenship. As Secretary of State Hay noted almost one-hundred years ago:

 
As a general statement, passports are issued to all law-abiding American citizens who apply for them and comply with the rules prescribed; but it is not obligatory to issue one to every citizen who desires it, and the rejection of an application is not to be construed as per se a denial by this Department or its agents of the American citizenship of a person whose application is so rejected.

 3 JOHN BASSETT MOORE, A DIGEST OF INTERNATIONAL LAW 921 (1906) (statement of Secretary of State Hay to diplomatic and consular officers, Mar. 27, 1899) (emphasis added).

 It is the reason for revocation, not the bare act of revocation itself that may give rise to a claim of constitutional wrong. That is, unless the reason for revoking one's passport is based upon a finding of non-citizenship, the loss of a passport itself indicates nothing about the legitimacy of one's citizenship. It is for these reasons that Plaintiff's reliance on Magnuson v. Baker, 911 F.2d 330, 335 (9th Cir. 1990), is misplaced. There, the Secretary of State had revoked the plaintiff's passport based on a suspicion of non-citizenship. By contrast, Mr. Kelso's passport was revoked because he is allegedly the subject of a federal warrant of arrest; the status of his citizenship has never been questioned. Indeed, in her March 12, 1998 letter, Ms. Pachon clearly expressed that "the passport revocation affects 'only the document and not the citizenship status of the person in whose name the document was issued.'" Pl.'s Mot. for TRO or Prelim. Inj. at Ex. D (quoting 8 U.S.C. § 1504). Furthermore, Ms. Pachon noted that "if Mr. Kelso needs documentation in order to return to the United States, such will be provided." Id. Moreover, where the Secretary of State cancels a passport because it was illegally, fraudulently, or erroneously obtained, Congress has explicitly provided that "the cancellation under this section of any document purporting to show the citizenship status of the person to whom it was issued shall affect only the document and not the citizenship status of the person in whose name the document was issued." 8 U.S.C. § 1504. Although § 1504 by its precise terms does not encompass passport revocations due to a federal warrant of arrest, the Court believes that § 1504 embodies the basic and well-recognized principle that passport revocations do not necessarily impugn the citizenship status of passport holders.

 Mr. Kelso's argument that every passport revocation necessarily implicates the fundamental right of citizenship cannot be reconciled with Supreme Court precedent. In Haig v. Agee, 453 U.S. 280, 309-10, 69 L. Ed. 2d 640, 101 S. Ct. 2766 (1981), the Court held that "the Government is not required to hold a prerevocation hearing," id. at 309, when the Secretary of State revokes a national's passport based on a finding that the passport holder's activities threaten the national security and foreign policy of the United States. Instead, the Court concluded that: "The Constitution's due process guarantees call for no more than what has been accorded here: a statement of reasons and an opportunity for a prompt postrevocation hearing." Id. at 310.

 Here, as in Agee, the Fifth Amendment's Due Process Clause imposes on the Secretary of State nothing more than a requirement that she inform Mr. Kelso why his passport has been revoked and permit him to contest her decision promptly before a hearing officer. Constitutional liberties do not exist in a vacuum; the due process rights accorded to individuals must be carefully balanced against exigent and palpable governmental interests. Cf. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963) ("While the Constitution protects against invasions of individual rights, it is not a suicide pact."). The very purpose of 22 C.F.R. § 51.70(a)(1) is to prevent those subject to federal warrants of arrest from escaping the process of law. It would unduly frustrate the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.