Court Stays Proceedings In Response To Government's Maneuver To Dodge Discovery in the Passports sans SSN case
In our last exciting episode of CARMICHAEL v. POMPEO, the Government moved to dismiss the case a year ago. The Court determined six months later that the RFRA (Religious Freedom Restoration Act), Privacy Act, and Fifth Amendment claims by the plaintiffs are solid. Then, after the plaintiffs delivered a draft of their discovery motion to the U.S. Attorney, along with a list of initial disclosures to which they had obligated themselves, the government came up with a new tactic to dodge accountability.
That brings us to this exciting episode. Remember, the passport renewals were denied and revoked base upon the plaintiffs not signing a form that 44 U.S.C. § 3512 says that we don’t have to sign and that we cannot be penalized for not signing. Some people don’t sign the form for conscience sake since they know that it is unlawful for the government to coerce them into signing the form. For the plaintiffs, instead of signing the form, they put statements like “religious prohibition, 42 U.S.C. § 2000bb” and submitted a declaration that religion prohibits them from identifying with the sort of number (Mark of the Beast/SSN) that the Dept. of State requests in block 5 of the passport form. The government has not yet admitted that it is daily coercing people with the unlawful form, but it had to admit that it never considered a religious accommodation. But knowing that proceeding with discovery is not going to be one bit of help to the defense, the gov attys came up with another guise for subverting the claim: They said, “Oh…. We need to see if we can identify the Plaintiffs without a SSN.” Well they have been identitifying millions of people without an SSN for decades, so the argument is baseless, and the regulations that control the threshold for identification lists a previously issued passport as sufficient (22 C.F.R. 51.23(b). Nonetheless, they’ve convinced the court to stay the proceeding and remand the case to the agency in order to take another wack at the plaintiffs.
Remand to an agency is not horrible if there is a statute and rule of court to provide for the action. However, there is no statute or rule of court (judicial regulation) that authorizes a remand. There is no administrative law tribunal in the agency that the Congress gave original jurisdiction for an adversarial proceeding. The first stop for an adversarial proceeding is the District Court. There is no judicial or statutory quasi-judicial tribunal to which it can be remanded. It is smoke and mirrors.
It is especially insidious since they did a thorough job of verifying their identities for the first issuance of the passports.
Thus, a 44 page Motion For Declaratory Judgment Or Partial Finding Of Facts And Conclusions Of Law Regarding Remand Order Of January 19, 2021 along with its Memorandum In Support was filed yesterday. It is a treatise on Separation of Powers, the grant and limitations upon the court by statute, and the grant and limitations upon the district court by the rules of the Supreme Court . The documents can be obtained from the docket at CARMICHAEL v. POMPEO, 1:19-cv-02316 – CourtListener.com (New Defendant is "Blinken" rather than Pompeo since the administration change)
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