There were no passport revocation cases arising from PRWORA, but the following cases are relevant. They indicate that PRWORA's passport revocation provisions will withstand challenge, as long as the party whose passport is revoked or denied is provided a timely hearing. The Kelso cases show that the State Department and Child Support Agency may lose the battle but win the war.

Kelso v. Dep't of State, 13 F.Supp. 2d 1 (D.D.C. 1998). Although this is not a child support case, it is instructive. Mr. Kelso's passport was revoked because the United States District Court for the District of Washington issued a warrant for his arrest. The FBI's formal request for passport revocation stated that Mr. Kelso was a convicted Federal felon, who had been a fugitive from justice for two years. Federal regulations empower the State Department to revoke the passport of a national who is the subject of a Federal warrant of arrest for a felony.

Mr. Kelso attacked the validity of the revocation on three grounds: (1) that the absence of a pre-revocation hearing violates the Fifth Amendment's Due Process Clause; (2) that the regulations empowering the Secretary of State to revoke passports exceed her delegated authority; and (3) that State Department regulations compelled the Secretary to return Mr. Kelso's passport because the Department did not initiate a hearing within 60 days of Mr. Kelso's request. Mr. Kelso sought a Temporary Restraining order or Preliminary injunction that required the Department to return Mr. Kelso's passport, pending resolution of the matter.

The court found that Mr. Kelso was not entitled to a pre-revocation hearing--a post revocation hearing was adequate to protect his due process rights--and determined that the Secretary had authority to revoke the passport of a national who was engaging in conduct that would violate U.S. laws or was the subject of a Federal warrant of arrest for a felony. Nevertheless, the Court granted Mr. Kelso injunctive relief because the Department had not complied with 22 C.F.R. Section 51.81, which requires the Department to automatically vacate the adverse decision, unless the State Department or Foreign Service initiates a hearing within 60 days of the request.

Kelso v. Dep't of State, 13 F.Supp.2d 12 (1998). On May 28, 1998, the State Department issued Mr. Kelso a replacement passport, and on June 1, 1998, the Department requested its embassy in London to revoke Mr. Kelso's replacement passport. Mr. Kelso argued that State Department regulations and the doctrine of res judicata barred the Department from re-revoking his passport. The court disagreed, and denied his motions to show cause and for contempt.

The Kelso cases show that the State Department has authority to revoke a passport where a national is violating U.S. laws (presumably including U.S. child support laws), and that due process does not require a pre-revocation hearing, but does require the State Department to provide an opportunity for a party to contest the revocation of his passport within 60 days of a request. Although, failure to initiate a hearing within the required time frame requires the Department to reissue the passport, neither Federal law nor the doctrine of res judicata bars the Department from re-revoking the passport.