Eudene Eunique, an Individual v. Colin L. Powell, the Secretary of State for the United States

302 F.3d 971, 2002 U.S. App. LEXIS 17526, 2002 Daily Journal DAR 9725, 2002 Cal. Daily Op. Serv. 7717, 2002 WL 1941433

Opinions

Opinion by Judge FERNANDEZ. Concurrence by Judge McKEOWN. Dissent by Judge KLEINFELD.

ORDER

Our opinions filed February 22, 2002, are hereby withdrawn, and new opinions— a lead opinion by Judge Fernandez, a concurring opinion by Judge McKeown, and a dissenting opinion by Judge Kleinfeld — are filed simultaneously herewith.

Judges Fernandez and McKeown voted to otherwise deny the petition for rehearing. Judge Kleinfeld would grant that petition. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonre-cused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petitions for rehearing and for rehearing en banc are, therefore, DENIED.

OPINION

FERNANDEZ, Circuit Judge.

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.

BACKGROUND

When Eunique’s marriage was dissolved, her husband was awarded custody¹ 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.² 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.³

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,⁴ 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)(l). 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.

STANDARD OF REVIEW

“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).

DISCUSSION

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, as I see it, the Court 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. I 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).⁵ Because, as I see it, 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).⁶ 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.⁷ The Second Circuit, by the way, agrees with our conclusion. Weinstein v. Albright, 261 F.3d 127, 133 (2d Cir.2001).

CONCLUSION

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. Un fortunately 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.⁸ 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.⁹

AFFIRMED.

Footnotes

1

. Actually, he was designated as primary caretaker, although she and he had joint custody.

2

. At oral argument, she indicated that the amount has reached $28,000-$30,000.

3

. During the pendency of this appeal, by the way, she obtained a continuance in order to travel to Mexico to visit her sister. Apparently, she was able to enter Mexico without a passport.

4

. See 42 U.S.C. §§ 651-669.

5

. I recognize that in Causey v. Pan Am. World Airways (In re Aircrash in Bali, Indonesia on April 22, 1974), 684 F.2d 1301, 1309-10 (9th Cir.1982), we indicated that international travel is a fundamental right. But that reference was dicta, was without citation to any case that so stated, and the Supreme Court has surely suggested the contrary.

6

. We have recently applied that statute again, though in a somewhat different context. See United States v. Gill, 264 F.3d 929, 931 (9th Cir.2001).

7

. I recognize that in Freedom to Travel, 82 F.3d at 1439, we alluded to the possibility that passport restraints may require an ''important” reason for imposing a travel ban. That sounds a good deal like what the Court has called "intermediate scrutiny.” See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 220, 115 S.Ct. 2097, 2109, 132 L.Ed.2d 158 (1995). If so, all I have already said demonstrates that the restriction in question both fosters and is substantially related to an important governmental interest. Thus, Judge McKeown and I agree on the result.

8

. Again, I would do so because the statute and regulations pass rational basis scrutiny, and Judge McKeown would do so because they also pass intermediate scrutiny.

9

. On appeal, Eunique raises the new claim that Congress violated international law when it enacted § 652(k). We do not hear issues raised on appeal for the first time. See Crawford v. Lungren, 96 F.3d 380, 389 n. 6 (9th Cir.1996); Broad v. Sealaska Corp., 85 F.3d 422, 430 (9th Cir.1996).