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Walker v. Tillerson

United States District Court, M.D. North Carolina

March 7, 2018

FRANCIS R. WALKER, Plaintiff,
v.
REX TILLERSON, U.S. SECRETARY OF STATE and DIRECTOR PASSPORT SERVICES, DEPT. OF STATE, Defendants.

          MEMORANDUM OPINION AND ORDER

          Catherine E. Eagles, District Judge.

         When the State Department refused to renew his passport, the plaintiff, Francis Russell Walker, filed suit asking that defendants Rex Tillerson, the United States Secretary of State, and Karen Pizza, the Director of Passport Services, be compelled to issue a passport to him. Mr. Walker also asks the Court to declare unconstitutional “any law which prohibits the issuance or invalidation of a U.S. Passport absent criminal nexus” as violating his individual right to international travel. The Secretary acted within his authority to deny Mr. Walker a passport and none of the identified statutes are unconstitutional as applied. Summary judgment for the defendants is appropriate.

         FACTUAL AND PROCEDURAL BACKGROUND

         In May 2017, Mr. Walker submitted an application to renew his passport. Doc. 39 at 4-5; Doc. 16-2. He listed his most recent passport book number as XXXXX and his Social Security Number as 000 00 0000. Doc. 39 at 4.

         On June 10, 2017, he received a letter from the National Passport Center asking him to certify that he had never been issued a social security number. Doc. 10 at ¶ 9.[1]He signed the statement and returned it. Doc. 10 at ¶ 10; Doc. 39 at 7.

         Mr. Walker filed this lawsuit in August 2017. Doc. 2. He asked for an “Order in Mandamus, ” requiring the U.S. Passport Agency to issue a passport and sought other declaratory relief. Doc. 2 at ¶ 16-17.

         In September 2017, the Department again asked Mr. Walker to certify that he had never been issued a social security number. Doc. 39 at 13-14. In response, Mr. Walker submitted a second affidavit asserting that he had never been issued a social security number. Doc. 39 at 13-14. By letter dated September 25, 2017, the State Department denied Mr. Walker's passport renewal application because he failed to provide his correct social security number. Doc. 10 at 10 (letter from Karen Pizza, Director, National Passport Center to Mr. Walker).

         Mr. Walker then filed an amended complaint in October 2017. Doc. 10. In his amended complaint, he seeks injunctive and declaratory relief, specifically an order compelling the defendants to issue him a passport and declaring unconstitutional all laws prohibiting issuance of a passport “absent criminal nexus.” Doc. 10 at ¶¶ 29-30.

         The government filed a motion to dismiss, or in the alternative a motion for summary judgment, pointing to evidence indicating that Mr. Walker does have a social security number. Doc. 15. After briefing was complete, the Court gave notice of its intent to convert the motion to a summary judgment motion and gave the parties an opportunity to provide additional evidence and for the government to submit a declaration or other evidence authenticating Exhibit C to its brief. Doc. 27. The defendants thereafter filed additional evidence, all of which tended to show that Mr. Walker had a social security number. Docs. 36, 37, 38, 39. Mr. Walker responded. Doc. 40. Mr. Walker has also filed a motion for sanctions, [2] Doc. 29, and a motion for judgment on the pleadings. Doc. 24.

         The pending motions are now ripe for decision.

         DISCUSSION AND ANALYSIS

         The Court construes Mr. Walker's complaint as asserting the following claims. First, he seeks an order compelling the defendants to issue him a passport pursuant to 8 U.S.C. § 1503, 28 U.S.C. § 1361, and 28 U.S.C. § 2201. Doc. 10 at ¶¶ 29-30.[3] Second, he seeks judicial review of the State Department's agency action denying him a passport, pursuant to the Administrative Procedure Act. See Doc. 10 at ¶¶ 7-23 (implying that his application was denied in an arbitrary fashion). Third, he asks for a declaratory judgment that any laws prohibiting the issuance of a passport “absent criminal nexus, ” be declared unconstitutional as “a violation of the privileges clause, Ninth Amendment, a Bill of Attainder in violation of Article 1 Section 9 of the United States Constitution and a violation of the International Covenant on Civil and Political Rights.” Doc. 10 at ¶ 30. While not completely clear, the Court also construes his complaint as raising a substantive due process claim.

         I. Does Mr. Walker have a SSN?

         As a factual matter, all of Mr. Walker's claims rest on his factual assertion that he has no social security number. He has affirmed several times that he has never been issued a SSN by the Social Security Administration. Doc. 39 at 7 (affidavit certifying that he has never been issued a SSN); Doc. 39 at 13 (same). He has made similar statements throughout the pleadings:

• Doc. 10 at ¶ 18 (Mr. Walker's amended complaint) (“Francis R. Walker was never issued a SSN and Walker has stated that fact at least three times under penalty of perjury.”)
• Doc. 39 at 16-17 (letter from Mr. Walker to Ms. Pizza) (“I have never been issued a Social Security number and you know it, ” and “Francis R. Walker has never been issued a Social Security number and I defy you to prove otherwise.”)
• Doc. 30 at 3 (Mr. Walker's motion for Rule 11 sanctions) (“Francis R. Walker has NEVER applied for a Social Security number so I know that not only does it not exist but that it never has existed.”).

         The record in this case, however, contains direct evidence to the contrary. In his request and affidavit to proceed in forma pauperis, Mr. Walker states under oath that his only income comes from Social Security payments. Doc. 1 at 2 (“I … have been receiving Social Security since I was 62. I currently receive approximately XXXXX”). Under federal law, it is not possible to receive Social Security benefits without possessing or obtaining a social security number. See 20 C.F.R. § 404.469 (“No monthly benefits will be paid to an entitled individual unless he or she either furnishes to the Social Security Administration (SSA) satisfactory proof of his or her Social Security number, or, if the individual has not been assigned a number, he or she makes a proper application for a number.”).

         In addition, the defendants have presented a plethora of evidence that Mr. Walker has a SSN.[4] The defendants produced evidence that Mr. Walker used his 2006 passport - the very passport Mr. Walker wants to renew -- and a social security card to obtain a Tennessee driver license in 2009. Doc. 19 at 1.

         The application, submitted under the name Russell Francis Walker, included five documents as a means of identification:

• a Social Security card (with the SSN of XXXXX) bearing the name Russell F. Walker, Doc. 19 at 5;
• a U.S. passport issued to Francis Russell Walker, passport number.XXXXX, Doc. 19 at 5;
• a N.C. driver license issued to Russell Francis Walker, Doc. 19 at 5;
• a Tennessee vehicle title indicating that Russell Walker holds title to a 2004 Ford ...

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