Archives for May 2014

PASSPORT RESTRICTION: Denial of discharged Defendant’s permission to apply for passport a “judicial usurpation of power” warranting mandamus… Haddon reversed.

Keith Faherty requested coram nobis relief from Judge Haddon’s denial of permission to apply for a new or replacement passport. We construe his request as a petition for mandamus. Span (9th Cir. 1996).

Mandamus is justified in “exceptional circumstances amounting to a judicial usurpation of power.” Bauman (9th Cir. 1977). Bauman identified 5 guidelines: (1) no other adequate means to attain relief; (2) petitioner will be damaged or prejudiced in a way not correctable on appeal; (3) order clearly erroneous as a matter of law; (4) order is an oft-repeated error or manifests a persistent disregard of the federal rules; (5) order raises new & important problems or issues of 1st impression. The US conceded at oral argument that the only guideline not met is the 4th.

Haddon’s assumption of jurisdiction over Faherty’s passport application was clearly erroneous. He had completed his sentence and supervised release. No case involving him was pending. By continuing to deny him the opportunity to pursue his right to travel, Haddon engaged in “judicial usurpation of power,” thereby warranting the extraordinary remedy of mandamus. The order is vacated. Haddon is ordered to forthwith and without limitation or restriction grant Faherty permission to apply for a new or replacement passport. The Dept. of State can then determine whether one should be issued.

Hawkins, Rawlinson, Bea.

US v. Faherty, 12-30340, 4/18/14.

Helge Naber, Great Falls, for Faherty; AUSAs Paulette Stewart & J. Bishop Grewell.