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US Appellate
Court Upholds State Department Passport Revocation Rules for Delinquent
Child-Support Debtors
In a case of first impression and one of vital importance to many US
citizens traveling abroad, the United States Court of Appeals for the
Second Circuit has upheld a due process and equal protection clause challenge
to federal regulations which authorize the denial and revocation of a
passport to an individual who is more than $5,000 in child support arrears.
The regulations in question in Weinstein v. Albright,
___ F.3d ___, 2001 U.S. App. LEXIS 18066 (Aug. 10, 2001), were
issued by the Department of State (22 CFR §§51.70(a)(8), 71.72(a)
and 51.80(a)(2)), pursuant to 42 U.S.C.§652(k) which was adopted
as part of the Personal Responsibility and Work Opportunity Reconciliation
Act of 1996, Pub. L. No. 104-193, §370 (1996).
Plaintiff contended that the State Department was obliged to provide
him with notice and a hearing before his US passport could be revoked,
stating that failure to do so would unfairly and unconstitutionally restrict
his right to travel abroad without any opportunity to contest the revocation
decision at the federal level.
In rejecting his due process challenge
the appellate court noted that the plaintiff had been afforded reasonable
notice and opportunity to be heard at the state level, before
the state agency certified the amount of arrears to the federal government
and before any action was taken on the passport. In fact the federal statute
expressly required the responsible state agencies to ensure that each
individual obligor was afforded notice of a determination that he was
in arrears in excess of $5000, the consequences of such a determination
and an opportunity to contest same.
Certification is to be made to the
US Department of Health and Human Services which in turn is to transmit
the certification to the Secretary of State.
The Secretary of State upon
receipt of the certification "shall refuse to issue a passport"
to an obligor in arrears and "may revoke, restrict or limit a passport
issued previously to such individual." The court held that the apparent
discretion given to the Secretary of State in revoking the issued passports
of delinquent child support obligors is not fatal in that the plaintiff
failed to produce any evidence of arbitrary conduct.
The administrative
practice of revoking the passports of only those seriously delinquent
obligors who come to the attention of the State Department because they
are seeking new passport services is reasonable.
Citing to the leading
Supreme Court decision in Haig v. Agee, 453 U.S. 280, 291 (1981),
the Second Circuit stated that the Secretary of State has broad
rule-making authority and that a consistent administrative construction of
the statute must be followed by the courts unless there are compelling
indications that it is wrong.
"The latitude that should be given to the Secretary in creating a policy
for passport revocation for those certified as being in child support
arrears is arguably broader that that given in Haig, as the Secretary
in this instance is acting pursuant to a specific delegation of discretionary
authority from Congress…. [citations omitted]. Following
the Supreme Court's decision in Haig, we find constitutionally
adequate the State Department's policy of only revoking the passports
of those certified as being in child support arrears when such persons
apply for new passport services. We therefore find that the discretion
permitted in 42 U.S.C. §652(k)(2) and 22 C.F.R. 51.72(a) does not
require the State Department to provide hearings for those who have
their passports revoked.
In sum, because the right to notice and an opportunity to contest the
arrears determination before the relevant state agency is sufficient
to protect the liberty interest in having a passport and traveling internationally,
we deny both plaintiff's facial and as applied procedural due process
challenges to the statutes and regulations."
The equal protection challenge focused on the fact that the State Department
regulations do provide for a federal-level pre-revocation hearing for
virtually every other ground allowed for passport revocation (e.g. failure
to repay federal student loans), but not in the case of certified child
support arrearages.
The court noted that the protected interest here,
the right to travel internationally "is not a fundamental right equivalent
to the right to the right to interstate travel." Haig v. Agee, supra,
453 U.S. at 307. Moreover, the class of persons to which the plaintiff
belongs is not a suspect class.
Therefore, the equal protection challenge
will be rejected so long as the classification created "rationally
furthers a legitimate state interest."
The appellate court reasoned
that the State Department could have reasonably concluded that since child
support obligors are entitled to a full review of the arrearage determination
at the state level there was no need to provide an additional level of
federal review prior to revocation of the passport.
Copies of the
decision discussed
above are available on
request by e-mail to israel@fandz.com.
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