UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
October 31, 1986
ARTHUR BRITTON, SR., ET AL. APPELLANT
GEORGE P. SCHULTZ, U.S. SEC'Y OF STATE, ET AL. 1986.CDC.370 DATE FILED: OCTOBER 31, 1986
Before: EDWARDS, GINSBURG and STARR, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Rules of the District of Columbia Circuit Court of Appeals may limit citation of unpublished opinions. Please refer to the Rules of the United States Court of Appeals for this Circuit.
Appeal from the United States District Court for the District of Columbia, Civil Action No. 84-00925.
This cause came on to be heard on the record on appeal from the United States District Court for the District of Columbia, and was briefed and argued by counsel. While the issues presented occasion no need for an opinion, they have been accorded full consideration by the Court. See Local Rule 13(c). On consideration thereof and for the reasons set forth in the accompanying memorandum it is
ORDERED and ADJUDGED, by this Court, that the judgment of the District Court appealed from in this cause is hereby reversed as to John Popovich and remanded as to Eugene T. Sheehan and Alice Stevens Richie for a hearing in accordance with the accompanying Memorandum. It is
FURTHER ORDERED, by this court, sua sponte, that the clerk shall withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See Local Rule 14, as amended on November 30, 1981 and June 15, 1982. this instruction to the Clerk is without prejudice to the right of any party at any time to move for expedited issuance of the mandate for good cause shown.
MEMORANDUM I. BACKGROUND
The appellee, Arhtur Britton, Sr., formerly worked for the United States Agency for International Development . While stationed in Sana, Yemen, Britton applied to the United States Department of State ("State Department) on behalf of his illegitimate son, Willis Cudjo Britton, for a diplomatic passport. Joint Appendix at 44-49. At the time, Willis Britton was living in Monrovia, Liberia with his natural mother. Id. On June 2, 1980, the State Department issued a diplomatic passport to Willis Britton, as the dependent of a foreign service officer living abroad. Id. Shortly thereafter, according to the appellee, State Department officials Eugene T. Sheehan and Alice Stevens Richie and USAID official John Popovich revoked Willis Briton's diplomatic passport, and were responsible for the failure of Willis to receive travel papers of any kind. Appellate claims that, a a consequence of these officials' actions, Willis Britton was prevented from leaving Liberia to join his father, who by this time had returned from Sana, Yemen to USAID headquarters in Washington, D.C. J.A. at 105-07.
Arthur Britton sued appellants, Sheehan, Richie and Popovich, in the District Court for civil damages, asserting that their revocation of the diplomatic passport and subsequent denial of all travel documents violated Willis Britton's right to travel and also deprived both father and son of their right to freedom of association without procedural due process. The appellants moved to dismiss, or in the alternative for summary judgment, on the ground of qualified immunity. Without elaboration, the District Court denied this motion. The appellants now appeal the District Court's denial of qualified immunity. See Mitchell v. Forsyth, 105 S. Ct. 2806, 2816-17 (1985) (denial of qualified immunity on a motion to dismiss or for summary judgment appealable under the collateral order doctrine). II. ARGUMENT
The qualified immunity doctrine shields government officials exercising discretion "from liability for civil damages insofar as their conduct does not violate clearly established constitutional or statutory rights of which a reasonable person would have known." Harlow v. Fitzgerald, 467 U.S. 800, 818 (1982). As the appellee conceded at oral argument, John Popovich had no involvment in the passport matter concerning Willis Britton and is therefore entitled to qualified immunity on the pleadings. With respect to the appellants Sheehan and Richie, however, a factual issue exists which precludes this court from resolving their qualified immunity claims on the record. See Fludd v. United States, 771 F.2d 547, 554 (D.C. Cir. 1985) (in resolving qualified immunity claim on summary judgment, court must consider any disputed material facts in light most favorable to the plaintiff).
The appellants concede that Willis Britton was entitled to a limited purpose passport. J.A. 31, 69-70. they claim, however, that a limited validity passport head in fact been authorized for Willis Britton. Id. The appellants assert further that they each discussed this authorization with the appellee, who responded by insisting on a diplomatic passport for his son. J.A. at 33, 71, 87-88. The appellants also argue that, even if they had never informed the appellee of the authorization for a limited validity passport, no clearly established constitutional rights would have been violated, as the appellants had no duty to inform the appellee that such a passport was available for his son; rather, according to the appellants, the appellee had the burden to apply for such a travel document. supplemental Memorandum of Appellants.
The appellate admits that Willis Britton had no constitutional right to a diplomatic passport. The appellee also concedes that he would have no claim if a travel document of any kind was actually available to Willis Britton. The appellee avers, however, that he was never told that a limited validity passport had been authorized for Willis Britton; that, in fact, the American Embassy in Monrovia, Liberia refused to issue Willis Britton a travel document of any kind; and that the appellee faced total resistance from the appellants when he sought an explanation of the embassy's conduct. J.A. at 106-07. The appellee maintains, therefore, that he justifiably believed that it would have been futile to apply on behalf his son for a limited validity passport.
In light of this factual dispute over the availability of a limited purpose passport, we remand to the District Court for a determination of whether Willis Britton was effectively denied such a passport after the revocation of his diplomatic passport. If the District Court finds that Willis Britton was indeed denied a limited purpose passport, then it must consider whether, by virtue of their role in this affair, the appellants violated any clearly established law of which they reasonably should have known. Harlow, 457 U.S. at 818. In considering this case on remand, the district Court should bear in mind the following: (1) The legitimacy of Willis Britton's birth and his claim to United States citizenship are completely irrelevant to the qualified immunity issue, as the appellants have conceded that willis Britton was entitled to a limited validity passport: (2) The appellee admits that Willis Britton had no constitutional right to a diplomatic passport. Furthermore, on the record here, the appellee has presented no substantial claim that the revocation of Willis' diplomatic passport violated procedural due process or any other constitutional or statutory rights; (3) The issuance of a limited validity passport would have completely nulified the appellee's claim so infringement of both his and Willis Britton's constitutional rights; and (4) If the appellee knew or reasonably should have known of an authorization for a limited validity passport, then he would have no claim unless he had a justifiable basis for believing that it would have been futile to apply.
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