Omar v. Kerry et al

Filing 39

ORDER to the United States Department of Justice. Signed by Judge Jacqueline Scott Corley on 9/29/2015. (Corley, Jacqueline) (Filed on 9/29/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MOSED SHAYE OMAR,

Case No. 15-cv-01760-JSC

Plaintiff,
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v.

ORDER TO THE UNITED STATES
DEPARTMENT OF JUSTICE

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JOHN KERRY, et al.,
Defendants.

United States District Court
Northern District of California

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Plaintiff Mosed Shaye Omar, a United States citizen, contends that the United States

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Department of State unlawfully revoked his passport based a written statement (“the Statement”)

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that Omar contends is unreliable. The Court heard oral argument on Omar’s motion for a

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preliminary injunction on September 8, 2015. At the hearing, the Court questioned the

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government at length about the undisputed facts in the record that supported Plaintiff’s assertion

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that the Statement is unreliable and cannot be the basis for revocation of his passport. At the

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conclusion of the hearing the Court took the motion under submission to give Plaintiff the

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opportunity to make a supplemental submission regarding irreparable harm. Following the

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hearing, the parties agreed to participate in a settlement conference before Judge Orrick on

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October 8, 2015.

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By letter dated September 28, 2015, Plaintiff Mosed Shaye Omar advised the Court that

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nine days after the hearing, the United States Attorney’s Office obtained a warrant from another

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magistrate judge of this Court to obtain Plaintiff’s DNA. (Dkt. No. 35.) Plaintiff expressed

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concern that the affidavit in support of the warrant (which was not disclosed to Plaintiff) relied

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upon the very Statement that in this lawsuit is being challenged as unreliable. Accordingly, the

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Court ordered the government to file the affidavit submitted to the magistrate judge in support of

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the warrant. (Dkt. No. 36.) The government did so and also provided a copy to Plaintiff.

The Court has now reviewed the warrant application and directs the Department of Justice

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to answer the following questions in writing on or before 5:00 p.m. on Thursday, October 1,

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2015.
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The affidavit omits any reference to: this lawsuit, Plaintiff’s challenge to the

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Statement’s reliability, this Court’s questions about the Statement’s reliability, and any of the facts

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surrounding the Statement. Was any of this information otherwise provided to the magistrate

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judge in connection with the warrant application?
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If any of the above information was not provided, why was the information not

disclosed to the magistrate judge?
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Was the federal agent who signed the affidavit in support of the warrant at all

United States District Court
Northern District of California

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aware of the proceedings before this Court? If not, how did he come to seek the warrant just nine

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days after the preliminary injunction hearing and more than two and half years after the Statement

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on which the affidavit is based was made?
4.

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Was the Assistant United States Attorney who signed the application for the search

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warrant aware of the litigation before this Court or Mr. Omar’s challenge to the Statement’s

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reliability?
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Was the Department of Justice Attorney appearing in this action aware that the

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United States was seeking a warrant? If so, when did he become aware of the possibility of a

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warrant application and was he aware of what information was not disclosed to the magistrate

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judge.

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IT IS SO ORDERED.
Dated: September 29, 2015

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________________________
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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