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

July 30, 1998

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



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

MEMORANDUM OPINION

 On June 3, 1998 Plaintiff Joseph Robert Kelso filed a Supplemental Memorandum in Support of Motion To Show Cause for Contempt, in which he argues that 22 C.F.R. § 51.81 and principles of res judicata prohibit the Department of State from re-revoking his passport. This issue has been fully briefed with an opposition memorandum from the Defendant and a subsequent Reply from Mr. Kelso. Having considered the arguments advanced by counsel, the factual record presented, and the governing law, the Court denies the Plaintiff's motion.

 I. BACKGROUND

 Many of the facts of this case have already been summarized in the Court's April 29, 1998 Memorandum Opinion, which the Court hereby incorporates. See Kelso v. United States Dep't of State, 13 F. Supp. 2d 1, 1998 U.S. Dist. LEXIS 11045, 1998 WL 413782, at *1-*2 (D.D.C.). That decision granted the Plaintiff's request for a preliminary injunction to compel the Secretary of State to vacate her previous decision to revoke Mr. Kelso's passport based on an analysis of 22 C.F.R. § 51.81. *fn1" Although the Court regrettably had to issue a subsequent Order to compel the Defendant to comply with its mandate, on May 28, 1998, the Defendant vacated its earlier revocation and accordingly issued a replacement passport.

 On June 1, 1998, however, the Department of State requested the United States Embassy in London to revoke Mr. Kelso's replacement passport. See Pl.'s Supp. Mem. in Support of Mot. To Show Cause for Contempt at Ex. A (letter from Marina Utgoff Braswell to Nancy Luque, June 2, 1998, at 2). The Department of State justified its revocation under 22 C.F.R. §§ 51.70, 51.72, reasoning that because Mr. Kelso remained the alleged subject of a federal arrest warrant who is deemed to present a flight risk, the agency was authorized by regulation to revoke his replacement passport. It is this revocation decision that has brought the parties back before the Court.

 II. NEITHER THE DEPARTMENT OF STATE'S OWN REGULATIONS NOR PRINCIPLES OF RES JUDICATA PROHIBIT THE AGENCY FROM REVOKING MR. KELSO'S REPLACEMENT PASSPORT.

 A. The "mandatory" nature of § 51.81 does not inhibit the Department of State's authority to revoke a replacement passport.

 Pressing into action this Court's previous finding that 22 C.F.R. § 51.81 imposes a mandatory deadline on the Department of State, Plaintiff posits that the mandatory nature of § 51.81 bars the Defendant from revoking a replacement passport. That § 51.81 is "mandatory," however, does not foreclose the Department of State from acting as it has. To be sure, § 51.81 mandates that the Department of State initiate a post-revocation hearing within sixty days from request. See 22 C.F.R. § 51.81; Kelso, 13 F. Supp. 2d 1, 1998 WL 413782, at *8-10 (D.D.C.). Moreover, this deadline is mandatory because the regulation prescribes a specific consequence for the agency's failure to comply, namely, vacation of the revocation. See 22 C.F.R. § 51.81 ("The adverse action shall be automatically vacated unless such proceeding is initiated by the Department . . . within 60 days after request . . . ."); Kelso, 13 F. Supp. 2d 1, 1998 WL 413782, at *7 ("Section 51.81 satisfies the Supreme Court's test for determining whether a regulation is mandatory."); see also United States v. James Daniel Good Real Property, 510 U.S. 43, 63, 126 L. Ed. 2d 490, 114 S. Ct. 492 (1993) ("If a statute does not specify a consequence for noncompliance with statutory timing provisions, the federal courts will not in the ordinary course impose their own coercive sanction.").

 The word "mandatory," though it sounds redoubtable and impressive, is no more than a term of art with a precise legal meaning; one that bears no resemblance to that advocated by the Plaintiff. It exists as one half of a dichotomy that the courts have constructed to evaluate whether and to what extent to sanction agencies that fail to comply with a statutory (or regulatory) deadline. Where there is no "clear indication that Congress intended otherwise, we will deem a statutory deadline to be directory." Brotherhood of Ry. Carmen Div. v. Pena, 314 U.S. App. D.C. 198, 64 F.3d 702, 704 (D.C. Cir. 1995) (emphasis added). On the other hand, where Congress or an agency has clearly evinced its intent to fashion a binding deadline, courts are more inclined to deem it mandatory. See James Daniel Good Real Property, 510 U.S. at 63; Gottlieb v. Pena, 309 U.S. App. D.C. 334, 41 F.3d 730, 734 (D.C. Cir. 1994).

 What elevates a timing provision from the status of directory to that of mandatory is that the regulation or statute "specifies a consequence for noncompliance with" the timing provision. James Daniel Good Real Property, 510 U.S. at 63. Where there is no specific consequence, the Supreme Court has noted that "federal courts will not in the ordinary course impose their own coercive sanction." Id. From these principles emerges a corollary: that a federal court, when faced with a mandatory deadline that prescribes a specific consequence, will not impose a different or more coercive sanction than the statute or regulation itself sets forth. It would, indeed, be an odd rule that when Congress or federal agencies fashion a precise consequence for noncompliance with a timing provision that they also intend the courts to engraft additional penalties never codified or promulgated.

 With this understanding, the inquiry naturally becomes: whether the precise sanction for noncompliance set forth in 22 C.F.R. § 51.81 prohibits the Department of State from revoking a replacement passport. A plain reading of the regulation demonstrates that it clearly does not. The only consequence specified in § 51.81 for the Department of State's failure to initiate a hearing within sixty days is an automatic vacation of the prior revocation. See 22 C.F.R. § 51.81. Black's Law Dictionary defines "vacate" as: "To annual; to set aside; to cancel or rescind. To render an act void; as, to vacate an entry of record, or a judgment." BLACK'S LAW DICTIONARY 1388 (Spec. Deluxe 5th ed. 1979). Certainly, to vacate a revocation decision is to annual it. Yet to concede that proposition is not to say that vacatur prevents the Department of State from issuing a different revocation order. Although Plaintiff protests that "the regulatory deadline would hardly be mandatory if the Department could simply revoke the same passport or its replacement again," Pl.s' Supp. Mem. at 3, this complaint misconceives the nature of mandatory deadlines. As explained previously, the contours of a mandatory deadline are established by the scope of the specific sanction that the statute or regulation prescribes. Here, § 51.81 mandates that the Department of State's failure to initiate a hearing within sixty days results in the automatic vacation of its revocation. It speaks not at all to whether the Department is forever barred from revoking a replacement passport based on the same factors that animated the initial decision. To hold otherwise would require this Court "to impose [its] own coercive sanction," James Daniel Good Real Property, 510 U.S. at 63, an invitation this Court declines.

 This also underscores why the one case that the Plaintiff cited is inapposite. In Ramon-Sepulveda v. INS, 824 F.2d 749 (9th Cir. 1987), the court precluded the INS from reopening an administrative hearing to admit an individual's birth certificate after the agency had failed to carry its burden during the initial hearing. The regulation before the Ninth Circuit, however, as the Plaintiff himself notes, "expressly provided that the Immigration Judge could reopen a hearing after a decision only if there were new evidence that the INS could not have discovered or presented at the hearing." Pl.'s Reply at 6. It is, therefore, no surprise to learn that the Ninth Circuit precluded the INS from reopening the hearing once it determined that the agency could have obtained the birth certificate from Mexico. Unlike the sanction that Mr. Kelso seeks to impose upon the Department of State for its dilatory response to his request for a hearing, the consequence for the INS's oversight in Ramon-Sepulveda --barring the agency from reopening the hearing--was specified by regulation as the consequence for failure. Nothing in § 51.81 expressly precludes the Department of State from issuing a subsequent revocation order after an initial one has been vacated.

 Lastly, Plaintiff's theory "fail[s] to adhere to the general rule that 'when . . . there are less drastic remedies available for failure to meet a statutory deadline, courts should not assume that Congress intended the agency to lose its power to act.'" Gottlieb v. Pena, 309 U.S. App. D.C. 334, 41 F.3d 730, 736 (1994) (quoting Brock v. Pierce County, 476 U.S. 253, 260, 90 L. Ed. 2d 248, 106 S. Ct. 1834)). Here, the consequence that the agency itself specified for noncompliance in § 51.81 is less drastic than that advocated by Mr. Kelso. By mandating automatic vacation of a revocation hearing, § 51.81 establishes a sanction for failing to initiate promptly the hearing while it concomitantly avoids stripping the Department of State of the power to revoke the passport of one who is subject to a federal arrest warrant and who is feared by federal law-enforcement officials to present a substantial flight risk. Plaintiff's proposal for such a drastic consequence is simply advocacy; were this Court to adopt his argument it would be reversible error. See Gottlieb, 41 F.3d at 736.

 B. The Department of State's vacated revocation, by definition, lacks any preclusive consequences that would bar the agency ...


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