Kelso v. U.S. Dept. of State

• Decision Date: 29 April 1998
• Docket Number: Civil Action No. 98-00874 CKK.
• Citation: 13 F.Supp.2d 1
• Parties: Joseph Robert KELSO, Plaintiff, v. U.S. DEPARTMENT OF STATE, Defendant.
• Court: U.S. District Court — District of Columbia

Page 1

13 F.Supp.2d 1

Joseph Robert KELSO, Plaintiff, v. U.S. DEPARTMENT OF STATE, Defendant.

Civil Action No. 98-00874 CKK.

United States District Court, District of Columbia.

April 29, 1998.

Nancy A. Luque, Kathleen H. McGuan, Reed Smith Shaw & McClay, Washington, DC, for plaintiff.

Marina Utgoff Braswell, United States Attorney's Office, Washington, DC, for defendant.

MEMORANDUM OPINION

KOLLAR-KOTELLY, District Judge.

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.¹ 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. ¶ 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. ¶ 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.)).² 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.³ 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, 58 F.3d 738, 746 (D.C.Cir.1995); Sea Containers Ltd. v. Stena AB, 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 "[a]n 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...