Adjudicatory Functions
(CT:CITZ-30; 01-10-2020)
(Office of Origin: CA/PPT/S/A)
8 FAM 103.2-1 Definitions
(CT:CITZ-28; 11-06-2019)
a. 22 CFR 51.1 defines a passport acceptance agent as "a U.S. national designated by the Department to accept passport applications and to administer oaths and affirmations in connection with such applications." 22 CFR 51.22 further defines the functions of passport acceptance agents.
b. 22 CFR 51.1 defines a passport agent as "a U.S. citizen employee of the Department of State, including consular officers, diplomatic officers and consular agents abroad, and such U.S. citizen Department of State employees or contractors as the Assistant Secretary for Consular Affairs may designate for the purpose of administering oaths and affirmations for passport applications." 22 CFR 51.21 and 22 CFR 51.22 further define the functions of passport agents.
c. 22 CFR 51.1 defines a passport authorizing officer as "a U.S. citizen employee who is authorized by the Department to approve the issuance of passports." 22 CFR 51.5 further defines the passport authorizing officer's role as including adjudicating passport applications:
(1) The Deputy Assistant Secretary of Passport Services (CA/PPT) has authorized the following positions as passport authorizing officers:
(a) Passport specialists;
(b) Consular officers; and
(c) Supervisors and managers at passport agencies/centers who meet the criteria for passport authorizing officers, have had appropriate training (see 8 FAM 104.1), and have been issued an adjudication stamp.
(2) CA/PPT may authorize other Consular Affairs (CA) employees to serve as passport authorizing officers if they meet the criteria for passport authorizing officers, have had appropriate training (see 8 FAM 104.1), and have been issued an adjudication stamp.
8 FAM 103.2-2 Inherently Governmental Functions
(CT:CITZ-30; 01-10-2020)
a. An inherently governmental function is defined in Federal Acquisition Regulation (FAR) Subpart 7.5 as including the performance of adjudicatory functions.
b. For purposes of federal acquisition law, the operative definition of "governmental function" is contained in section 6.3 of OMB circular No. A-76 (rev. August 4, 1983), which provides as follows:
A Governmental function is one so intimately related to the public interest as to mandate performance by Government employees. These functions include those activities, which require the exercise of discretion in applying Government authority or the use of value judgement in making decisions for the Government… Governmental functions normally fall into two categories:
(1) The act of governing; i.e., the discretionary exercise of Government authority
(2) Monetary transactions and entitlements
c. The decision to issue a passport is inherently a decision that the passport applicant is a U.S. citizen or non-citizen U.S. national-- a decision that only the U.S. government can make. However, not every step involved in processing passport applications involves the performance of an inherently governmental function. To the extent that steps leading up to passport issuance involve simple input of data or the evaluation of the application against well-defined objective criteria that may be performed with little or no exercise of discretion or judgment, such steps are not inherently governmental functions.
d. With regard to passports and consular reports of birth abroad (CRBAs), the adjudicatory function is:
(1) A decision to approve or deny a passport or CRBA application;
(2) A decision that immediately precedes and leads directly to the decision to approve or deny a passport or CRBA application, such as determining that a passport applicant is/is not eligible for a U.S. passport when there are facial recognition return(s) (at passport agencies/centers) or namecheck hold(s) for the applicant; or
(3) Any decision that requires the use of discretion (except for the selection of pre-defined options--i.e., "well-defined objective criteria"). For example, accepting proof of citizenship, which is defined by statute as a valid U.S. passport, CRBA, or certification of citizenship or naturalization, is not an adjudicatory function (see also 8 FAM 603.2-3 regarding initialing true copies of citizenship evidence). By contrast, determining that applicants have established their identities to the preponderance of the evidence by the submission of secondary evidence of identity is an adjudicatory function.
e. Inherently governmental functions must not be performed by contractors (FAR 7.5). Only passport authorizing officers may perform adjudicatory functions (22 CFR 51.5).
f. Passport agents and passport acceptance agents may perform all non-adjudicatory passport and CRBA functions (see 8 FAM 603.2-3).
8 FAM 103.2-3 Assigning Workload
(CT:CITZ-28; 11-06-2019)
a. Passport agency/center management must assign workload in accordance with the production standards and the inclusions/exclusions list provided by the Office of Adjudication's Oversight Division (CA/PPT/S/A/AO).
b. Posts may assign some non-adjudicatory functions to passport agents, passport acceptance agents, or locally-employed staff as appropriate (see 8 FAM 603.3-2). Adjudicatory functions (see 8 FAM 103.2-2) must be performed by consular officers (who may also perform non-adjudicatory functions).