Weinstein v Albright 261 F.3d 127 [1] (2nd Cir. 2001) is the seminal case challenging passport denial for child support arrearage under 42 USC 652(k), enacted as part of the Personal Responsibility and Work Opportunity Act in 1996.
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After Monty Neil Weinstein applied for a new passport to travel to Israel in 1999, the State Department notified him that his application for a new passport was denied and his existing passport was revoked because he owed more than $5,000 in child support. He moved, pro se, for a preliminary injunction to bar defendants from denying him a passport claiming that 42 USC 652(k) violated his First Amendment right to practice his religion, contravened his substantive due process right to travel, and that the laws constituted a Bill of Attainder because he was subjected to summary punishment without a judicial hearing or trial prior to suspending or revoking his passport. He claimed his civil rights had been denied under 42 USC 1983 and 42 USC 1985 by conspiracy and cited a pendant IIED (Intentional infliction of emotional distress) claim for money damages.
He didn't challenge the New York State's determination of arrears, either administratively or in a state court. He claimed he never received the notice that his child support arrearage exceeded $5,000 and the consequences thereof, and an opportunity to contest the determination required under 42 USC 652(k). He claimed he was not provided an opportunity to contest, before any federal agency, the decisions to deny his passport application and revoke his previously issued passport. He contended he "has no remedy by the person, governmental agency, or entity depriving him of these rights and need seek remedy and a hearing elsewhere, after the fact."
The United States District Court for the Southern District of New York denied Weinstein on each of what it called a "a litany of constitutional challenges." It ruled that because the statutory and regulatory provisions require notice and an opportunity to be heard, they could not be found on their face to violate the Weinstein's procedural right to due process guaranteed by the Fifth Amendment. The Court ruled that his substantive due process claim to a fundamental right to international travel was not a fundamental right like interstate travel and is thus only subject reasonable governmental regulations within the bounds of due process. It ruled that there was a rational basis for refusing to issue a passport and revoking a previously issued one to individuals who owe arrearages of child support in an amount exceeding $ 5,000 and that the Government had a substantial interest in promoting the payment of child support arrearages and that restricting passports for persons who owe substantial arrearages was reasonably related to furthering that end because it encouraged people to pay such arrearages, and prevented them from fleeing the country to avoid paying such arrearages.
It ruled that his First Amendment right to freedom of speech, freedom of assembly and freedom of association were not violated because the basis for denying a passport was only the amount of child support arrearages and the not content of the his speech. It dismissed Weinstein's contention that he had been targeted for the expression of his views concerning family matters and divorced men and for his affiliation with certain advocacy groups because the he had failed to allege any facts to support his contention that the defendants acted in retaliation for the exercise of his First Amendment rights. It rejected his argument that 42 U.S.C. § 652(k) and 22 C.F.R. § 51.70(a)(8) prohibit the free exercise of religion because the right to free exercise of religion does not relieve a person from complying with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes) and that legislative power…may reach people's actions when they are found to be in violation of important social duties or subversive of good order, even when the actions are demanded by one's religion.
Concerning his claim that the law and regulation discriminate based on marital status the Court ruled that a passport was not denied to individuals because of their marital status and that a classification based on marital status did not involve a suspect class and that the law did not impact a fundamental right. It ruled that the law was not a Bill of Attainder because 1)denying a passport to individuals who owe a substantial amount of child support to prevent them from fleeing the country is not the type of punishment traditionally thought to be prohibited by the Bill of Attainder Clause, 2) viewed in terms of the type and severity of burdens imposed, [the law] reasonably can be said to further nonpunitive legislative purposes, and 3) there were no facts showing that Congress intended to punish parents who owe child support arrearages by denying their passport applications. The Court also dismissed Weinstein's selective prosecution argument because he failed to state a claim for violation of any of his constitutional rights by the Federal Defendants based on the statute and regulations either on their face or as applied to him. It rejected his IIED claim because the United States could not be sued for this claim under the Federal Tort Claims Act because he had not first presented the claim to the appropriate Federal agency and the claim finally denied.
It rejected his Civil Rights claim under 42 U.S.C. § 1983 against the federal defendants in their official capacities because 1) they were not acting under the color of state law, 2) he failed to state a claim for the violation of any constitutional rights by the Federal Defendants, and 3) because claims against federal defendants in their official capacities are essentially claims against the United States which are barred by sovereign immunity. It rejected his Civil Rights claims against federal defendants in their individual capacities because he failed to allege any facts showing the personal involvement of the Federal officials in any alleged denial of the plaintiff's constitutional rights, and even if the he could show that the Federal Defendants performed any discretionary function in denying his passport application, the Federal Defendants are shielded from liability for civil damages because it cannot be found that the conduct of any of the Federal Defendants violated any clearly established rights of the plaintiff. It rejected his Civil Rights claim against the state defendants because under the Eleventh Amendment, a state cannot be sued in federal court unless it consents to such a suit or when Congress unequivocally states its intent to abrogate the state's immunity, and that 42 U.S.C. § 2000d-7(a) does not override this Eleventh Amendment immunity because Weinstein failed to identify the applicable Federal statute prohibiting discrimination by recipients of Federal financial assistance which is arguably violated in this case.
As to Weinstein's additional procedural due process argument against the State Defendant that it had failed to provide notice and an opportunity to be heard because he never received the Special Notice, the Court ruled that because the State had no reason to believe that the plaintiff was not residing at the address on file or would not understand the mailed notice, the Special Notice that was sent by ordinary mail met due process requirements for depriving the plaintiff of his liberty to travel overseas. Finally, the Court also dismissed Weinstein argument that he should be afforded discovery prior to a ruling on dismissal because failed to make the showing required for obtaining discovery.
The United States Court of Appeals for the Second Circuit affirmed, devoting its opinion to Weinstein's procedural due process and equal protection claims. It rejected "for the reasons ably articulated by the district court," Weinstein's claims that the laws violated his First Amendment rights, contravened his substantive due process rights in violation of the Fifth and Fourteenth Amendments, and that the laws constituted a bill of attainder in violation of Article I, § 9 of the Constitution. It similarly adopted the district court's rationale for dismissing plaintiff's claims that was targeted for selective prosecution. But on procedural due process and equal protection, it saw the need to inquire further.
Procedural Due Process
The Court rejected his claim that 42 USC 652(k) and 22 C.F.R. §§ 51.70(a)(8), 51.72(a) & 51.80(a)(2) were unconstitutional because they infringe upon his protected liberty interest to travel overseas without providing him due process. It constructed its logic around Armstrong v. Manzo, 380 U.S. 545, 552 (1965)“[2]: “the key inquiry in evaluating whether the government provides due process is whether the class of persons affected are given notice and provided with an opportunity to contest the relevant determination 'at a meaningful time and in a meaningful manner,'" concluding that with respect to the denial of passport applications for those situated like Weinstein, the statute provided for timely notice and a meaningful opportunity to contest, and therefore comported with due process.
It bifurcated its analysis into passport denial and passport revocation. Here the Weinstein Court ruled that requiring the federal government to provide persons in Weinstein's position with an opportunity to respond would be futile because the executive branch's role in denying passport applications is purely ministerial. After receiving certification from the applicable state agency, HHS passes such certification along to the U.S. State Department, which then has no choice but to deny the passport application of individuals so certified. And it cited further protections afforded by 45 C.F.R. § 303.35(a) (2001.) But it carved out an exception when it envisioned "one class of persons for whom an opportunity to respond to the federal agencies may be essential; persons who allege a claim of mistaken identity -- that the State Department wrongly concluded they were the persons who had been certified as owing child support." and it set out a two-pronged test: "the future litigant who claimed that he had not been certified as owing child support arrears and also showed that he was denied the opportunity for review before the State Department might have a colorable due process challenge." (the Weinstein exception)
It concluded that with respect to passport revocation, the State Department did not engage in an arbitrary exercise of its executive authority to revoke passports, citing Haig v. Agee and Kent v. Dulles, because the State Department created a uniform policy under which the only individuals whose existing passports would be revoked as a result of state certifications of child support arrears are those individuals who come to the attention of the State Department by applying for "new passport services", finding that the discretion permitted in 42 U.S.C. § 652(k)(2) and 22 C.F.R. § 51.72(a) did not require the State Department to provide hearings for those who have their passports revoked.
The Court did not directly address Weinstein's complaint that he was unable to contest the seizure of his passport with the agency under whose authority it was seized. The Court held that because the State Department's role in the law was only ministirial, if Weinstein did indeed need seek redress elsewhere, it did not violate his due process rights because the right to international travel is not a fundamental right like the right to interstate travel.
Equal Protection
The Court affirmed the district court's decision that the laws did not discriminate against him based on his gender and marital status but read Weinstein's complaint to imply a more subtle kind of equal protection challenge, a claim there was no rational basis to deny federal hearings to persons who have been denied passports because they have been certified as being more than $5,000 in child support arrears, while providing federal hearings to virtually all other classes of persons whose passports are revoked and applications for passports denied. Here the Court found that the State Department could have reasonably concluded that those persons whose passports are revoked and whose passport applications are denied because they have been certified as being more than $5,000 in child support arrears do not require access to the federal hearings provided to other classes of persons denied passports because those owing child support arrears are the only class assured to have received prior notice of the passport consequences of, and an opportunity to contest, the state determination leading to the denial of the passport applications. Thus the Court concluded there is a rational basis for the State Department to provide hearings for the other classes of persons and not to provide hearings to those who have been certified as being in arrears in child support.
The Court also addressed Weinstein's further assertion that there was no rational basis to deny the "emergency circumstances or humanitarian reasons" exception found in 22 C.F.R. § 51.71(c) to persons who, like himself, have been denied passports because they have been certified as being more than $5,000 in child support arrears. It noted that those in Weinstein's position are not the only class denied the humanitarian or emergency grounds exception and that only those denied passports because of having committed certain drug offenses are eligible for such an exception. Moreover, it noted that those in Weinstein's position can remove their offending status and receive passports at any time simply by paying their child support arrears, those subject to supervised release for certain drug convictions are not similarly situated to speed up the process to receive a passport. Therefore, it found that Congress had a rational basis to distinguish between those denied passports for certain drug offenses and those denied passports for being in child support arrears.