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.
2

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,
3

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
4

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 commonlaw 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.
5

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
6

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
7

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.
8

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.