United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided March 18, 2011
No. 10-5136
LINDA YAMAN, ON BEHALF OF HERSELF
AND MINORS KY AND EY, ET AL.,
APPELLANT
v.
UNITED STATES DEPARTMENT OF STATE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-00537)
Lisa Kirby Haines, Susan Baker Manning, and Beth I.Z.
Boland were on the briefs for appellant.
Ronald C. Machen Jr., United States Attorney, R. Craig
Lawrence and Jane M. Lyons, Assistant United States Attorneys,
were on the brief for appellees.
Before: SENTELLE, Chief Judge, GARLAND, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
Opinion for the court filed PER CURIAM.
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PER CURIAM: In May 2009, Appellant Linda Yaman (“Ms.
Yaman”) requested United States passports from the State
Department for her two young children at a U.S. Consulate
abroad. Ms. Yaman’s ex-husband, a Turkish national,
apparently had refused to relinquish physical possession of the
passports that the State Department had previously issued for the
children. The State Department initially denied Ms. Yaman’s
application on the ground that passports generally will not be
issued to minors without the consent of both parents. Ms.
Yaman then filed a timely request for administrative review to
contest the denial of her request for passports for her children.
As required by State Department regulations, Ms. Yaman
was afforded an adjudicatory hearing before a designated
Hearing Officer. The applicable agency regulations governing
passport denial hearings provide:
(a) The Department will name a hearing officer, who will make
findings of fact and submit recommendations based on the record
of the hearing as defined in [22 C.F.R.] § 51.72 to the Deputy
Assistant Secretary for Passport Services in the Bureau of
Consular Affairs.
(b) The person requesting the hearing may appear in person, or
with or by his designated attorney. The attorney must be
admitted to practice in any state of the United States, the District
of Columbia, any territory or possession of the United States, or
be admitted to practice before the courts of the country in which
the hearing is to be held.
(c) The person requesting the hearing may testify, offer evidence
in his or her own behalf, present witnesses, and make arguments
at the hearing. The person requesting the hearing is responsible
for all costs associated with the presentation of his or her case.
The Department may present witnesses, offer evidence, and make
arguments in its behalf. The Department is responsible for all
costs associated with the presentation of its case.
(d) Formal rules of evidence will not apply, but the hearing
officer may impose reasonable restrictions on relevancy,
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materiality, and competency of evidence presented. Testimony
will be under oath or by affirmation under penalty of perjury.
The hearing officer may not consider any information that is not
also made available to the person requesting the hearing and
made a part of the record of the proceeding.
(e) If any witness is unable to appear in person, the hearing
officer may, in his or her discretion, accept an affidavit from or
order a deposition of the witness, the cost for which will be the
responsibility of the requesting party.
22 C.F.R. § 51.71. The regulations also provide that a qualified
reporter will make a complete verbatim transcript of the hearing.
The person requesting the hearing and/or his or her attorney may
review and purchase a copy of the transcript. Id. § 51.72.
After hearing Ms. Yaman’s case, the Hearing Officer
prepared a document summarizing his Findings of Fact and
Recommendation and transmitted the document to the Deputy
Assistant Secretary of State for Passport Services (“Deputy”).
The Deputy partially reversed the State Department’s initial
decision and granted Ms. Yaman’s children no-fee, direct-return,
limited validity passports for entry into the United States. The
Deputy’s decision specifically noted that she had, as required by
the regulations, reviewed and considered the Hearing Officer’s
report. See id. § 51.74 (“After reviewing the record of the
hearing and the findings of fact and recommendations of the
hearing officer, the Deputy Assistant Secretary for Passport
Services will decide whether to uphold the denial or revocation
of the passport.”).
Ms. Yaman asked both the Hearing Officer and the Deputy
to provide her with a copy of the Hearing Officer’s Findings of
Fact and Recommendation. The Hearing Officer told Ms.
Yaman that he did not have authority to consider her request.
The State Department, in a letter to Ms. Yaman’s counsel,
refused to produce the Hearing Officer’s Findings of Fact and
Recommendation on the grounds that it was “predecisional and
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part of the deliberative process.” Compl. Ex. 5, reprinted in
Appellant’s Opening Brief Public Appendix (“App.”) 35. Ms.
Yaman then brought this suit under the Administrative
Procedure Act (“APA”), on behalf of herself and her children,
seeking an injunction requiring the State Department to disclose
the report to her. Her complaint alleged that “[t]he State
Department has unlawfully withheld the Findings from [Ms.
Yaman], and in so doing has acted in a manner that is arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” Compl. ¶ 39, App. 15.
The District Court granted the State Department’s motion
to dismiss the complaint. Yaman v. U.S. Dep’t of State, 709 F.
Supp. 2d 85 (D.D.C. 2010). The trial court held that the Hearing
Officer’s report was exempt from disclosure under the common-
law deliberative process privilege. Id. at 92-93. The trial court
then found that Ms. Yaman’s need for the Hearing Officer’s
Findings of Fact and Recommendation document could not
overcome the privilege because “[i]t is the agency’s final
decision – and only that final decision – that will be reviewed on
appeal.” Id. at 94.
Ms. Yaman timely appealed the District Court’s decision.
She then filed a second, separate complaint against the State
Department in the District Court, alleging that the State
Department’s decision on the merits – i.e., the decision to issue
Ms. Yaman’s children only limited passports rather than
unrestricted passports – was arbitrary and capricious in violation
of the APA. In the second suit, Ms. Yaman also alleges that the
State Department’s refusal to disclose the Hearing Officer’s
report violated her procedural due process rights. First Am.
Compl., Yaman v. U.S. Dep’t of State, No. 1:10-cv-00818 (Aug.
17, 2010), ECF No. 20. The State Department’s motion to
dismiss Ms. Yaman’s second suit is still pending in the District
Court before the same judge who heard this case.
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Acting pursuant to this court’s authority under 28 U.S.C. §
2106, we hereby vacate the District Court’s judgment, remand
the case, and order the District Court to consolidate this case
with the related case currently pending before the District Court,
Yaman v. U.S. Dep’t of State, No. 1:10-cv-00818. See, e.g.,
Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d
1022, 1028 (D.C. Cir. 1999) (justifying a remand under § 2106
“as a matter of judicial economy and pursuant to [the appellate
court’s] very broad remedial authority”).
I.
In its initial review of this case, the District Court assumed
that the APA supplied a cause of action pursuant to which Ms.
Yaman might seek relief against the State Department. Yaman
v. U.S. Dep’t of State, 709 F. Supp. 2d 85, 91 n.3 (D.D.C. 2010).
However, the trial court expressed skepticism that the agency’s
decision denying Ms. Yaman’s request for a copy of the Hearing
Officer’s Findings of Fact and Recommendation was a “final
agency action” sufficient to satisfy the requirements of 5 U.S.C.
§ 704; see also Bennett v. Spear, 520 U.S. 154, 177-78 (1997)
(holding that to be “final,” an agency action must “mark the
consummation of the agency’s decisionmaking process,” and it
must either determine “rights or obligations” or occasion “legal
consequences” (quotations omitted)).
On remand of this case, with Ms. Yaman’s two APA cases
consolidated, the matter of finality will be moot. This is
because, under the APA, “[a] preliminary, procedural, or
intermediate agency action or ruling not directly reviewable is
subject to review on the review of the final agency action.” 5
U.S.C. § 704; see also Burns v. Dir., Office of Workers’ Comp.
Programs, 41 F.3d 1555, 1561-62 (D.C. Cir. 1994). Therefore,
we need not decide whether the agency’s denial of Ms. Yaman’s
request for a copy of the Hearing Officer’s Findings of Fact and
Recommendation was a “final agency action.” The agency’s
denial will be subject to review as a part of the consolidated
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case, which includes a challenge to the Deputy’s final decision
on the merits.
II.
In retrospect, it appears that the District Court was
somewhat blindsided when Ms. Yaman elected to pursue two
separate cases to challenge the disputed State Department
actions. This parsing of her claims surely did not facilitate
efficient judicial review. The inability of the District Court to
consider the case as a whole might have misled it to focus
exclusively on a “common law” deliberative process privilege.
On remand, the District Court will have an appropriate
opportunity to reevaluate Ms. Yaman’s procedural APA claim
in the context of the entire case.
In addressing whether the State Department’s regulations
governing passport denial hearings require the disclosure of the
Hearing Officer’s Findings of Fact and Recommendation, the
District Court should take into account the considerations raised
by the Supreme Court in Ballard v. Commissioner, 544 U.S. 40
(2005). Ballard holds that a disputed Tax Court practice of not
disclosing the special trial judge’s original report, and of
obscuring the Tax Court judge’s mode of reviewing that report,
was not authorized by the Tax Court’s rules. The discourse of
the majority opinion in Ballard is illuminating. In discussing
the prevailing norms relating to a tribunal’s use of hearing
officers, the Court makes the following points:
[I]t is routine in federal judicial and administrative
decisionmaking both to disclose the initial report of a hearing
officer, and to make that report part of the record available to an
appellate forum. . . .
The Tax Court’s practice of not disclosing the special trial
judge’s original report, and of obscuring the Tax Court judge’s
mode of reviewing that report, impedes fully informed appellate
review of the Tax Court’s decision. . . . The officer who hears
witnesses and sifts through evidence in the first instance will
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have a comprehensive view of the case that cannot be conveyed
full strength by a paper record. . . .
The Commissioner urges, however, that the special trial
judge’s report is an internal draft, a mere “step” in a “confidential
decisional process,” and therefore properly withheld from a
reviewing court. . . . The Commissioner may not rely on the Tax
Court’s arbitrary construction of its own rules to insulate special
trial judge reports from disclosure. . . .
We are all the more resistant to the Tax Court’s concealment
of the only special trial judge report its Rules authorize given the
generally prevailing practice regarding a tribunal’s use of hearing
officers. The initial findings or recommendations of magistrate
judges, special masters, and bankruptcy judges are available to
the appellate court authorized to review the operative decision of
the district court. . . . And the Administrative Procedure Act
provides: “All decisions, including initial, recommended, and
tentative decisions, are a part of the record” on appeal. 5 U.S.C.
§ 557(c); see also § 706 (the reviewing court shall evaluate the
“whole record”). In comparison to the nearly universal practice
of transparency in forums in which one official conducts the trial
(and thus sees and hears the witnesses), and another official
subsequently renders the final decision, the Tax Court’s practice
is anomalous. As one observer asked: “[I]f there are policy
reasons that dictate transparency for everyone else, why do these
reasons not apply to the Tax Court?” . . .
Were the Tax Court to amend its Rules to express the
changed character of the Tax Court judge’s review of special trial
judge reports, that change would, of course, be subject to
appellate review for consistency with the relevant federal statutes
and due process.
Id. at 46, 59-60, 61, 61-62, 65 (brackets in original). On remand,
the parties and the District Court should address the import of
Ballard, which was not cited in the previous proceedings.
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III.
For the reasons stated above, we vacate the District Court’s
judgment granting the State Department’s motion to dismiss,
remand the case, and instruct the District Court to reevaluate
Ms. Yaman’s claims upon consolidation of this case with her
pending case against the State Department.
So ordered.