281 F. 3d 940 - Eunique v. L Powell

Eudene Eunique was denied a passport because she was severely in arrears on her child support payments. She brought an action for declaratory and injunctive relief on the theory that the statute and regulation authorizing that denial were unconstitutional. See 42 U.S.C. § 652(k); 22 C.F.R. § 51.70(a)(8). The district granted summary judgment against her, and she appealed. We affirm.

When Eunique's marriage was dissolved, her husband was awarded custody of the children, and she was ordered to pay child support. She failed to pay the ordered amounts, and by 1998 she was in arrears in an amount over $20,000. Thereafter, the arrearage continued to grow.1 Despite the fact that she is unable or unwilling to pay her child support obligations, she desires to travel internationally for both business and pleasure, including visiting a sister in Mexico.2

Eunique applied for a passport, but by that time California had certified to the Secretary of Health and Human Services that she owed "arrearages of child support in an amount exceeding $5,000." 42 U.S.C. § 652(k). Congress has provided federal funds to help the states collect child support,3 but has required that there be a state plan for child support which must include a "procedure for certifying to the Secretary ... determinations that individuals owe arrearages of child support in an amount exceeding $5,000." 42 U.S.C. 654(31). There is no dispute that California has adopted a procedure and that it followed the procedure in this case.

The Secretary of Health and Human Services received that certification and was required by law to transmit it "to the Secretary of State for action." 42 U.S.C. § 652(k)(1). That was accomplished here. The law then directed that "[t]he Secretary of State shall, upon certification ..., refuse to issue a passport to" the individual in question. 42 U.S.C. § 652(k)(2). The regulations adopted by the Secretary of State provide that:

A passport, except for direct return to the United States, shall not be issued in any case in which the Secretary of State determines or is informed by competent authority that:

.....

The applicant has been certified by the Secretary of Health and Human Services as notified by a State agency under 42 U.S.C. 652(k) to be in arrears of child support in an amount exceeding $5,000.00.

22 C.F.R. § 51.70(a)(8). Thus, the regulation tracks the statutory language, and really adds nothing to it.

As a result of the statutory and regulatory requirements, Eunique was denied a passport. In her view, that denial was unconstitutional, so this action ensued. The district court ruled against her and she appeals.

"The constitutionality of a statute is a question of law which we review de novo.... A court should invalidate the statutory provision only for the most compelling constitutional reasons." Gray v. First Winthrop Corp., 989 F.2d 1564, 1567 (9th Cir.1993) (citations and internal quotation marks omitted). We also review the grant of a summary judgment de novo. Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir.2000). "Summary judgment is proper if there are no questions of material fact and the moving party is entitled to judgment as a matter of law." Western Chance # 2, Inc. v. KFC Corp., 957 F.2d 1538, 1540 (9th Cir.1992); accord Harris v. Harris & Hart, Inc., 206 F.3d 838, 841 (9th Cir.2000).

Eunique argues that there is an insufficient connection between her breach of the duty to pay for the support of her children, and the government's interference with her right to international travel. Thus, she argues, her constitutional rights have been violated. We disagree.

Eunique asserts that she has a constitutional right to international travel, which is so fundamental that it can be restricted for only the most important reasons, and by a narrowly tailored statute. It is undoubtedly true that there is a constitutional right to international travel. See Kent v. Dulles, 357 U.S. 116, 125, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204 (1958). However, as the Supreme Court has said, "the right of international travel has been considered to be no more than an aspect of the liberty protected by the Due Process Clause of the Fifth Amendment. As such this right, the Court has held, can be regulated within the bounds of due process." Haig v. Agee, 453 U.S. 280, 307, 101 S.Ct. 2766, 2782, 69 L.Ed.2d 640 (1981) (citations and internal quotation marks omitted); see also Zemel v. Rusk, 381 U.S. 1, 14-15, 85 S.Ct. 1271, 1279-80, 14 L.Ed.2d 179 (1965); Aptheker v. Sec'y of State, 378 U.S. 500, 505, 84 S.Ct. 1659, 1663, 12 L.Ed.2d 992 (1964). In that respect, it differs from "[t]he constitutional right of interstate travel [which] is virtually unqualified." Haig, 453 U.S. at 307, 101 S.Ct. at 2782 (internal quotation marks and citations omitted). The difference means that we do not apply strict scrutiny to restrictions on international travel rights that do not implicate First Amendment concerns.

At an early point in the development of Supreme Court jurisprudence in this area, the Court seemed to suggest that restrictions upon travel must be looked upon with a jaded eye. See Aptheker, 378 U.S. at 507-514, 84 S.Ct. at 1664-68. However, it was then dealing with a law which touched on First Amendment concerns because it keyed on mere association. Id. at 507-08, 84 S.Ct. at 1664-65. The Court has not been as troubled in cases which do not directly involve those concerns. See Haig, 453 U.S. at 306-08, 101 S.Ct. at 2781-82; Zemel, 381 U.S. at 14-15, 85 S.Ct. at 1279-80. Rather, it has suggested that rational basis review should be applied.

When confronted with legislation which denied Supplemental Security Income benefits to people who were outside of the country, the Court commented that legislation which was said to infringe the right to international travel was "not to be judged by the same standard applied to laws that penalized the right to interstate travel." Califano v. Aznavorian, 439 U.S. 170, 177, 99 S.Ct. 471, 475, 58 L.Ed.2d 435 (1978). "It is enough," said the Court, "if the provision is rationally based." Id. at 178, 99 S.Ct. at 476. We recognize that because the SSI statute did not directly regulate passports, Califano is not directly applicable here, but it indicates that the Court does not apply the restrictive form of review advocated by Eunique. Moreover, the same theme appears in Haig, 453 U.S. at 307, 101 S.Ct. at 2782, where, again, the Court decided that regulation was appropriate "within the bounds of due process."

We have reified those Supreme Court emanations. In Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431, 1439 (9th Cir.1996), we held that, "[g]iven the lesser importance of ... freedom to travel abroad, the Government need only advance a rational, or at most an important, reason for imposing the ban." The District of Columbia Circuit has read the Supreme Court tea leaves in the same way. As it has noted, "international travel is no more than an aspect of liberty that is subject to reasonable government regulation within the bounds of due process, whereas interstate travel is a fundamental right subject to a more exacting standard." Hutchins v. Dist. of Columbia, 188 F.3d 531, 537 (D.C.Cir.1999).4 Because rational basis review is the proper standard, the statute is constitutional if there is a "`reasonable fit' between governmental purpose ... and the means chosen to advance that purpose." Reno v. Flores, 507 U.S. 292, 305, 113 S.Ct. 1439, 1449, 123 L.Ed.2d 1 (1993). Thus, we must presume § 652(k) to be valid, and we must uphold it "if it is rationally related to a legitimate government interest." Rodriguez v. Cook, 169 F.3d 1176, 1181 (9th Cir.1999).

The statute easily passes that test. There can be no doubt that the failure of parents to support their children is recognized by our society as a serious offense against morals and welfare. It "is in violation of important social duties [and is] subversive of good order." Braunfeld v. Brown, 366 U.S. 599, 603, 81 S.Ct. 1144, 1146, 6 L.Ed.2d 563 (1961). It is the very kind of problem that the legislature can address.

Moreover, the economic problems caused by parents who fail to provide support for their children are both well known and widespread. They can be exacerbated when the non-paying parent is out of the state, as, of course, a parent traveling internationally must be. Indeed, even within the United States itself, the problem is serious. That is one reason that we have upheld the constitutionality of the Child Support Recovery Act of 1992, 18 U.S.C. § 228, which actually criminalizes the failure of an out-of-state parent to pay child support, once having fallen as far behind as Eunique has. See United States v. Mussari, 95 F.3d 787, 790 (9th Cir.1996).5 We did that, by the way, over objections that commerce was not involved, but that Congress was seeking to regulate a "fundamental familial relation." Id. So serious a problem was it, we were not deterred by the argument that family issues should be left to the states, but, rather, noted that:

Respect for the competency of the states in matters of domestic relations is not disparaged but manifested when the states are confronted with interstate impediments to the fulfillment of domestic duties that the courts of the states have imposed, and the states find themselves, if not helpless, at least gravely impaired in pursuing the delinquent debts.

Id. at 791. That is true in this case also; international travel by what our society often calls "deadbeat parents" presents even more difficulties because the United States cannot easily reach them once they have left the country.

Congress also has financial concerns because unsupported children must often look to the public fisc, including the federal treasury, for financial sustenance. That was an impetus for the enactment with which we now deal; it is the reason that the Child Support Enforcement Program, 42 U.S.C. § 651-669, was enacted in the first place, and was quite properly upheld by the Tenth Circuit, despite attacks on various constitutional grounds, not including the ground that we consider here. See Kansas v. United States, 214 F.3d 1196, 1198, 1204 (10th Cir.), cert. denied, 531 U.S. 1035, 121 S.Ct. 623, 148 L.Ed.2d 533 (2000).

All of this not only illustrates the rationality of Congress's goal, but also demonstrates its rational connection to the passport denial in question. Surely it makes sense to assure that those who do not pay their child support obligations remain within the country, where they can be reached by our processes in an at least relatively easy way. Notably, even when the Court iterated the constitutional right to travel in Kent, 357 U.S. at 127, 78 S.Ct. at 1119, it, without disapproval, took notice of a long-standing policy of denying passports to those who were "trying to escape the toils of the law" or "engaging in conduct which would violate the laws of the United States." A person who fails to pay child support may well attempt to escape the toils of the law by going abroad, and may even be violating the laws of the United States. See, e.g., 18 U.S.C. § 228; see also Cal.Penal Code § 270.

Moreover, if a parent, like Eunique, truly wishes to partake of the joys and benefits of international travel, § 652(k) does have the effect of focusing that person's mind on a more important concern — the need to support one's children first. It doubtless encourages parents to do their duty to family. In short, the statute passes rational basis review with flying colors.6

The Second Circuit, by the way, agrees with our conclusion. Weinstein v. Albright, 261 F.3d 127, 133 (2d Cir.2001).

Eunique has failed to live up to a most basic civic and even moral responsibility: the provision of support to her own children. Yet she has brought this action because she feels that her right to the pleasures and benefits of international travel has been improperly curtailed. Unfortunately for her, Congress has decreed that her duties to her children must take precedence over her international travel plans. It has ordered her priorities for her.

We hold that, without violating Eunique's Fifth Amendment freedom to travel internationally, Congress (and the State Department) can refuse to let her have a passport as long as she remains in substantial arrears on her child support obligations. She is free to be a worker in the vineyards of the law, or to be a worker in another field, or, if she likes, to be a faniente, but the Constitution does not require that she be given a passport at this time.7

AFFIRMED.

I respectfully dissent.

The majority opinion holds that "rational basis review is the proper standard"1 for testing restrictions on a person's right to leave the United States. The right to leave one's country is too important to be subject to abridgment on so permissive a standard. The practical effect of consigning the right to travel to this lowly category of constitutional protection is to grant Congress plenary power to restrict it. In this case, unlike those in which the Supreme Court has upheld restrictions on travel, the government has not offered a foreign policy or national security justification for the restriction, the government has not narrowly tailored the restriction to its purpose, and the apparent purpose of the restriction is to penalize past misconduct rather than to restrict travel as such.

The right to leave is among the most important of all human rights. In the Crito, Socrates explains his decision to stay in prison and accept the death penalty, rather than accept his friends' arrangement of an escape, by the social contract formed when, though free to leave Athens with his property, he elected to stay and subject himself to its laws:

[W]e further proclaim to any Athenian by the liberty which we allow him, that if he does not like us when he has become of age and has seen the ways of the city, and made our acquaintance, he may go where he pleases and take his goods with him.... But he who has experience of the manner in which we order justice and administer the state, and still remains, has entered into an implied contract that he will do as we command him.2

Magna Carta established that subjects had a right to leave the kingdom and return.3 The exceptions to the right to travel abroad in Magna Carta were for "those imprisoned or out-lawed" and for "a short period in time of war,"4 a public policy reason relating to national security.

The Supreme Court held in Kent v. Dulles5 that the "right to travel is a part of the `liberty' of which the citizen cannot be deprived without the due process of law under the Fifth Amendment."6 The Court held that curtailments of that right must be narrowly construed,7 because the right to travel is so "deeply engrained" in Anglo-American constitutional history.8 The United States Code speaks of the right to emigrate as "fundamental" in the Jackson-Vanik Amendment,9 which pressures communist countries to let their people go: "To assure the continued dedication of the United States to fundamental human rights ... products from any nonmarket economy country shall not be eligible to receive nondiscriminatory treatment ... during the period beginning with the date on which the President determines that such country ... denies its citizens the right or opportunity to emigrate."10 In Europe in the 1930s and 1940s, for many citizens emigration or not meant life or death.

Ms. Eunique got caught by part of the "deadbeat dads" law,11 and cannot get a passport, because she has not been paying her ex-husband the $175 per month per child in child support that she agreed to pay when she divorced him. She was then in law school and "had thought that all lawyers earned a lot of money," but "things have not turned out as I expected."

She has earned negligible net income from her law practice. She says that a Peruvian-American friend has invited her to go to Peru to meet relatives who have a law firm there, and has suggested that her trip "could open up opportunities for the law firm to hire me when they need legal work in California." Ms. Eunique is plainly derelict in her duty to pay child support, and was properly denied a passport, if the statute and regulation12 are constitutional.

The Supreme Court has dealt with three kinds of interference with the right to travel abroad: bans on travel by specific classes of persons;13 bans on travel to specific countries;14 and residency requirements for government benefits that incidentally burden persons who travel abroad.15 The Court has held that incidental burdens on permitted travel need only have a rational basis,16 but has subjected restrictions on travel itself to much greater scrutiny.17 The Court has not formally stated the constitutional test, but its elements are clear. Travel restrictions must be justified by an important or compelling government interest and must be narrowly tailored to that end.18

Travel bans aimed at specific individuals or classes of individuals must be more narrowly tailored than bans aimed at specific countries.19

The statute and regulation in this case20 impose a direct restriction on travel, rather than an incidental burden, and must meet a higher standard of scrutiny than rational basis. They do not restrict travel to a specific country or region for reasons of national security or foreign policy, as in Zemel v. Rusk21 and Regan v. Wald.22 Instead, they restrict travel by a specific class of people. The Supreme Court has upheld such a restriction when a person's activities threaten national security or foreign policy, as in Haig v. Agee,23 and has suggested that bans on travel by people "participating in illegal conduct, trying to escape the toils of the law, promoting passport frauds, or otherwise engaging in conduct which would violate the laws of the United States" would also be proper.24 Had Eunique been held in contempt and ordered to stay in the United States and purge it, she might be "trying to escape the toils of the law" by traveling abroad. But the statute and regulation in this case only require that she be a debtor,25 not a fugitive, and so far as the record shows, that is all she is.

We should reverse the district court under Aptheker v. Secretary of State.26 The statute in that case denied passports to members of the Communist Party.27 The Communists lost in district court under rational basis review, but won in the Supreme Court because it applied a more stringent standard of review.28 Aptheker cannot be distinguished on the ground that it is a First Amendment case, because the Court expressly held that its disposition of the case under the Fifth Amendment made it unnecessary to review the First Amendment contentions.29 The Court held that the right to travel abroad is "an important aspect of the citizen's liberty guaranteed in the Due Process Clause ...,"30 describing it as one of our "basic freedoms."31 It therefore applied to the passport restriction the "familiar and basic principle" that "a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."32 The "the bare fact of organizational membership" in the Communist Party was too "tenuous" in its relationship to national security concerns to justify the breadth of the ban.33 The total ban "indiscriminately" ignored such "plainly relevant" factors as "the individual's knowledge, activity, commitment, and purposes in and places for travel."34 Accordingly, the Court held that the statute was "unconstitutional on its face" because it swept "too widely and too indiscriminately across the liberty guaranteed in the Fifth Amendment."35

The majority tries to dilute Aptheker by characterizing it as quaint, from "an early point in the development of Supreme Court jurisprudence in this area."36 But 1964 is not so long ago as all that. More important, a Court of Appeals is bound by Supreme Court decisions, even if it sees them as undermined by subsequent decisions.37 Aptheker is the law and it controls this case.

The ban on passports for "deadbeat dads" (and "deadbeat moms" as in this case) is less constitutionally defensible than the ban on passports for Communists held unconstitutional in Aptheker. In Aptheker, there was a genuine national security concern, but the statute swept too broadly, embracing cases where that concern was highly attenuated. Since Magna Carta, national security concerns have justified limiting the right to travel outside the country. For parents in arrears on child support, there is no national security or foreign policy concern.

Zemel v. Rusk does not help the majority, because the restriction on travel to Cuba upheld there was based on the "weightiest considerations of national security."38 Also, Zemel did not uphold a prohibition on traveling out of the United States, just one on travel to a particular hostile country.39 Nor does Califano v. Aznavorian40 help the majority. The law in that case did not restrict travel at all. It just imposed an incidental burden on travelers by suspending their Supplemental Security Income payments while they freely traveled outside of the United States.41 The Court in Aznavorian explicitly distinguished passport restrictions from the "rational basis" review it gave the suspension of government benefits while abroad, noting that the law at issue "does not limit the availability or validity of passports."42 Haig v. Agee is another national security case.43 It upheld the application of a regulation narrowly tailored to "cases involving likelihood of `serious damage' to national security or foreign policy ..." to a former CIA agent who insisted on exposing CIA agents working abroad undercover to hostile governments.44 Regan v. Wald is another travel-to-Cuba case, upholding that travel restriction (which allowed Americans freely to travel abroad, just not to that particular hostile country) because of "weighty concerns of foreign policy."45 Wald upheld a narrowly tailored travel restriction that supported the government's important foreign policy and national security interests;46 it did not recognize a "First Amendment exception" to an until-now non-existent rule of rational basis review for travel restrictions.

Our circuit precedents do not control this case. They sometimes speak of the right to travel as "fundamental,"47 sometimes not,48 and none uphold an across-the-board travel ban for other than foreign policy or national security reasons. Freedom to Travel Campaign v. Newcomb simply upheld a restriction on travel to a single country, Cuba49 — a restriction already upheld by the Supreme Court in Regan v. Wald50 — not on travel outside the United States. Freedom to Travel expressly avoids adopting a rational basis standard of review by saying "the government need only advance a rational, or at most important, reason...."51

The statute and regulations are more plainly overbroad here than in Aptheker. The majority suggests that "it makes sense to assure that those who do not pay their child support obligations remain within the country."52 But the statute and regulation do not require people to remain within the country. Someone fleeing the country to avoid collection attempts may flee to Mexico, Canada, and a number of other countries without a passport.53 This passport ban is more reasonably seen, in light of the penalties the states are required to impose for non-payment of child support — "withhold[ing] or suspend[ing], or ... restrict[ing] the use driver's licenses, professional and occupational licenses, and recreational and sporting licenses of individuals owing overdue support"54 — not as a means of facilitating collection but as a penalty for past nonpayment. After all, taking away a lawyer's or other licensed professional's license to practice makes her less able to pay her child support.

The passport ban is also overbroad because, as in Aptheker, it does not take into account individual reasons that might support a passport.55 For example, travel abroad would, in some businesses (importing) and some lines of professional work, be necessary to earning the money with which the parent would be able to pay child support. And it does not allow for considerations that would bear on the risk of a person traveling abroad to evade child support obligations. Were it tailored to avoiding such flight, then posting of security, owning assets fixed in the United States, or having a job or business in the United States could be considered in determining whether to issue a passport, just as they would be in a bail application.

If Ms. Eunique were a murderer who had done her time, she could get a passport.56 But a person delinquent in paying child support is punished by denial of a passport. All debtors should pay their debts. Debts for child support have special moral force. But that does not justify tossing away a constitutional liberty so important that it has been a constant of Anglo-American law since Magna Carta, and of civilized thought since Plato. We should reverse. To constitutionally deny so important a liberty as the right to travel, a statute must be more narrowly tailored to protect the important government interest, with no more interference than necessary.57