Jones v. Mnuchin et al

Filing 40

ORDER granting Defendant's 17 Motion for Summary Judgment; denying Plaintiff's 27 Motion for Summary Judgment and denying 38 Motion for Hearing. This case stands closed. Signed by Chief Judge J. Randal Hall on 3/8/2021. (pts)

Case 1:19-cv-00222-JRH-BKE Document 40 Filed 03/08/21 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

*

CRAIG THOMAS JONES,

5
5

Plaintiff,

*

*

V.

*

STEVEN T. MNUCHIN, in his
official capacity as Secretary
of the Treasury; CHARLES P.

*
*
*

RETTIG, in his official
capacity as Commissioner of

*
*

Internal Revenue; MICHAEL R.

CV 119-222

*

POMPEO, in his official

*

capacity as Secretary of

*

State; and THE UNITED STATES,

*
*

Defendants.

*

ORDER

Presently before the Court is Defendants' motion for summary

judgment (Doc. 17), Plaintiff's cross-motion for summary judgment
(Doc. 27), and Plaintiff's motion for hearing (Doc. 38).^ For the

following reasons. Defendants' motion is GRANTED, and Plaintiff's
motions are DENIED.

^ The Parties have thoroughly briefed the issues before the Court;

thus, a hearing is not necessary for the resolution of the Parties'
motions.

Plaintiff's motion for hearing (Doc. 38) is DENIED.

Case 1:19-cv-00222-JRH-BKE Document 40 Filed 03/08/21 Page 2 of 20

I. BACKGROUND

This

case

arises from

Plaintiff's

inability to

passport due to his federal tax liability.

renew

his

Plaintiff has federal

income tax liability for the years 2000, 2002, 2005, 2006, 2008,
and 2009.

(Pl.'s Second Am. Compl., Doc. 31, SI 18.)

As a result

of his liability, which totaled $404,928.24, the Department of the

Treasury, through the Internal Revenue Service {^^IRS"), certified
Plaintiff as having ''seriously delinquent tax debt" pursuant to 26

U.S.C. § 7345.

(I^ SI 20; Doc. 17, at 1.)

Thereafter, the

Department of State issued a letter to Plaintiff explaining that
he

is "ineligible

certification.

to

{Pl.'s

receive

passport services" due to the

Second Am. Compl.,

SI

24.)

Plaintiff

contends there are no facts in dispute for the purposes of the

Parties' summary judgment motions and the only issue is whether
Section 7345 is constitutional.

(See Pl.'s Br. in Opp'n & Cross-

Mot. for Summ. J., Doc. 26, at 2.)

into

the

specific

facts

Thus, the Court will not delve

surrounding

the

certification

of

Plaintiff's tax debt as "seriously delinquent."

II. The FAST Act

Section 7345 was enacted pursuant to Section 32101 of the

Fixing America's Surface Transportation Act (the "FAST Act") to
increase tax compliance.^

See FAST Act, § 32101(a), Pub. L. No.

2 For a complete description of the FAST Act legislative history
see Maehr v. U.S. Dep't of State ("Maehr R&R"), No. 18-CV-02948,

Case 1:19-cv-00222-JRH-BKE Document 40 Filed 03/08/21 Page 3 of 20

114-94, 129 Stat. 1312, 1729 (2015).

the

Secretary

[of

the

Treasury

Under Section 7345,

(^^Secretary")]

receives

certification by the Commissioner of Internal Revenue that an

individual has a seriously delinquent tax debt, the Secretary shall
transmit such certification to the Secretary of State for action

with respect to denial, revocation, or limitation of a passport."
26 U.S.C. § 7345(a).

Seriously delinquent tax debt is debt that

is greater than $50,000.

Id. § 7345(b)(1)(B).

Before the IRS can

certify a tax debt as seriously delinquent, it must be ^^assessed.
However, a tax liability will not be assessed by the IRS until
the amount of the liability has been determined through
an administrative process that provides the taxpayer
with notice and an opportunity to challenge the IRS's

position . . . includ[ing] the right to petition the
United States Tax Court for a redetermination . . . and

the right to appeal an adverse Tax Court decision to the
Court of Appeals for the relevant circuit.

Maehr R&R, 2019 WL 8359183, at *3 (citing 26 U.S.C. §§ 6213(a) and
7482). Moreover, prior to certification, the IRS "must attempt to

collect the debt through a specific administrative process." Id.;
see 26 U.S.C § 7345(b)(1)(C) (requiring "a notice of lien [to be]

filed pursuant to section 6323 and the administrative rights under
section 6320 with respect to such filing [to be] exhausted or have

2019 WL 8359183, at *2 (D. Colo. Sept. 27, 2019), report and

recommendation adopted in part, 2020 WL 96115^ (D. Colo. Feb. 28,
2020).

3 " ssessment shall be made by recording the liability of the
[A]

taxpayer in the office of the Secretary in accordance with rules
or regulations prescribed by the Secretary." 26 U.S.C. § 6203.

Case 1:19-cv-00222-JRH-BKE Document 40 Filed 03/08/21 Page 4 of 20

lapsed, or . . . a levy is made pursuant to section 6331" prior to

certification).

Additionally, debt that "is being paid in a timely

manner pursuant to an agreement to which the individual is party
under section 6159 or 7122" or debt that "collection is suspended

. . . because a due process hearing under section 6330 is requested

or pending" or because innocent spouse relief is requested under
Section 6015 cannot be certified as seriously delinquent.

See 26

U.S.C § 7345(b)(2).

Section 7345 also requires that the IRS contemporaneously

notify an individual of any certification.

Id. § 7345(d).

Finally, Section 7345 outlines situations in which certification
should be reversed and how to challenge erroneous certifications.
See id. §§ 7345(c), (e).

III. STANDARD FOR SUMMARY JUDGMENT

Summary judgment is appropriate only if "there is no genuine

dispute as to any material fact and the movant is entitled to
judgment as a matter of law."

Fed. R. Civ. P. 56(a).

Facts are

"material" if they could "affect the outcome of the suit under the

governing [substantive] law," Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986), and a dispute is genuine "if the non[-]moving

party has produced evidence such that a reasonable factfinder could
return a verdict in its favor."

Waddell v. Valley Forge Dental

Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001).

The Court

must view factual disputes in the light most favorable to the non-

Case 1:19-cv-00222-JRH-BKE Document 40 Filed 03/08/21 Page 5 of 20

moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986), and must 'Mraw all justifiable inferences

in [the non-moving party's] favor." United States v. Four Parcels
of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991) (en banc)

(citation, internal quotation marks, and internal punctuation
omitted).

The Court should not weigh the evidence or determine

credibility.

Anderson, 477 U.S. at 255.

The moving party has the initial burden of showing the Court,

by reference to materials in the record, the basis for the motion.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Because the

standard for summary judgment mirrors that of a directed verdict,
the initial burden of proof required by either party depends on
who carries the burden of proof at trial.

Id. at 322-23.

When

the movant does not bear the burden of proof at trial, it may carry

the initial burden in one of two ways — by negating an essential
element of the non-movant's case or by showing that there is no

evidence to prove a fact necessary to the non-movant's case.

See

Clark V. Coats & Clark, Inc., 929 F.2d 604, 606-08 (11th Cir. 1991)

(citing Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Celotex
Corp., 477 U.S. 317 (1986)). The movant cannot satisfy its initial
burden by merely declaring that the non-moving party cannot meet
its burden at trial.

Id. at 608.

If — and only if - the movant carries its initial burden, the
non-movant must ''demonstrate that there is indeed a material issue

of fact that precludes summary judgment."

Id.

When the non-

Case 1:19-cv-00222-JRH-BKE Document 40 Filed 03/08/21 Page 6 of 20

movant bears the burden of proof at trial, the non-movant must

tailor its response to the method by which the movant carries its
initial burden.
affirmatively

For example, if the movant presents evidence

negating

a

material

fact,

the

non-movant '"must

respond with evidence sufficient to withstand a directed verdict
motion

at

trial

on

the

material fact

sought

to

be

negated."

Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993).
On the other hand, if the movant shows an absence of evidence on

a material fact, the non-movant must either show that the record
contains evidence that was ^^overlooked or ignored" by the movant

or ^^come forward with additional evidence sufficient to withstand
a directed verdict motion at trial based on the alleged evidentiary

deficiency."

Id. at 1116-17.

The non-movant cannot carry its

burden by relying on the pleadings or by repeating conclusory

allegations contained in the complaint.
F.2d 1032, 1033-34 (11th Cir. 1981).

See Morris v. Ross, 663

Rather, the non-movant must

respond with affidavits or as otherwise provided by Federal Rule
of Civil Procedure 56.

Additionally, although pro se litigants

are entitled to some leniency, they must still establish that there

is a dispute as to a material fact.

Osahar v. Postmaster Gen.,

263 F. App'x. 753, 761 (11th Cir. 2008).

In this action, the Clerk of Court provided all parties notice

of the opposing party's motion for summary judgment, the right to
file

affidavits

or

other

consequences of default.

materials

in

(Docs. 18, 28.)

opposition,

and

the

For that reason, the

Case 1:19-cv-00222-JRH-BKE Document 40 Filed 03/08/21 Page 7 of 20

notice requirements of Griffith v. Wainwright, 772 F.2ci 822, 825
(llth

Cir.

materials

1985),

in

have

opposition

been

has

satisfied.

expired,

The

the

time

for

issues

filing

have

been

thoroughly briefed, and the motions are now ripe for consideration.

IV. ANALYSIS

A. Constitutionality of Section 7345

Plaintiff challenges Section 7345 on its face and argues the

statute infringes on the right to international travel, which is
fundamental and thus strict scrutiny must be applied, or in the

alternative,

the

right

is

^^important

enough

to

warrant

an

intermediate scrutiny standard." (Pl.'s Br. in Opp'n & Cross-Mot.

for Summ. J., at 4.) Plaintiff cites to the First Amendment, Ninth

Amendment,

Fifth

Amendment,

Fourteenth

Amendment,

and

Privileges and Immunities Clause as sources of the right.

the

(See

id. at 3-4.)
1. Ninth Amendment

First, Plaintiff turns to the Ninth Amendment for support.

However,

Plaintiff concedes

the

Ninth

Amendment

is "not

an

independent source of rights in itself." (Id. at 7.) In fact, it
is well established that "the Ninth Amendment standing alone houses

no constitutional guarantees of freedom."

Metz v. McKinley, 583

F. Supp. 683, 688 n.4 (S.D. Ga.) (citing Charles v. Brown, 495 F.
Supp. 862 (N.D. Ala. 1980)), aff^d, 747 F.2d 709 (llth Cir. 1984);
see also Ayton v. Owens, No. CV 313-006, 2013 WL 4077995, at *5

Case 1:19-cv-00222-JRH-BKE Document 40 Filed 03/08/21 Page 8 of 20

n.5 (S.D. Ga. Aug. 12, 2013) (''[T]he Ninth Amendment is not an

independent source of constitutional rights.").

Thus, the Ninth

Amendment provides no basis for Plaintiff s claim.
2. Privileges & Immunities Clause

Plaintiff also points to the Privileges and Immunities Clause

in Article IV, Section 2 of the Constitution as a source of the

right to international travel.

(See Pl.'s Br. in Opp'n & Cross-

Mot. for Summ, J., at 22-26.) The Privileges and Immunities Clause

provides that ^Mt]he Citizens of each State shall be entitled to
all Privileges and Immunities of Citizens in the several States."
U.S. Const, art. IV, § 2. As Plaintiff acknowledges, the Privileges

and Immunities Clause applies to state action, not federal action.

(See Pl.'s Br. in Opp'n & Cross-Mot. for Summ. J., at 22.)

It

^^prevents a state from discriminating against citizens of other
states in favor of its own."

Hague v. Comm. for Indus. Org., 307

U.S. 496, 511 (1939) (citations omitted).

Despite Plaintiffs

citation to various Supreme Court precedent, the Supreme Court has
never ''held an action taken by any branch of the federal government

is subject to scrutiny under the Privileges and Immunities Clause."
Pollack V. Duff, 793 F.3d 34, 41 (D.C. Cir. 2015). Instead, "[t]he

Supreme Court has consistently explained the clause restricts the
authority of the states without ever so much as implying it might
also apply to the federal government."

Id. (citing Baldwin v.

Fish & Game Common of Mont., 436 U.S. 371, 383 (1978); Hicklin v.

Orbeck, 437 U.S. 518, 523-24 (1978)).
8

Moreover, other circuits

Case 1:19-cv-00222-JRH-BKE Document 40 Filed 03/08/21 Page 9 of 20

have expressly held that the Privileges and Immunities Clause does

not apply to federal action.

See id. {citing cases from the First,

Fifth, and Ninth Circuits); see also Maehr v. U.S. Dep^t of State,
No. 18-CV-02948, 2020 WL 967754, at *4 (D. Colo. Feb. 28, 2020)

(finding the right of international travel is not protected by the

Privileges and Immunities Clause).

Thus, the Privileges and

Immunities Clause provides no basis for Plaintiff's claim.
3. First Amendment

Plaintiff contends ''the First Amendment is another doctrinal

source of the right to travel both internationally and at home."
(Pl.'s Br. in Opp'n & Cross-Mot. for Summ. J., at 21.)

However,

Plaintiff offers no explanation as to how the First Amendment is

implicated here.

(S^

at 21-22.)

Defendants argue "§ 7345

does not require that delinquent taxpayers surrender their First
Amendment rights."

(Doc. 35, at 13.)

The Court agrees.

Here,

the denial of Plaintiff's passport renewal application "does not

result from any expression or association on his part; [he] is not

being forced to choose between membership in an organization and
freedom to travel."

See Zemel v. Rusk, 381 U.S. 1, 16 (1965).

Thus, Plaintiff has no First Amendment claim.
4. Fourteenth Amendment

Plaintiff discusses substantive due process in the context of
the Fourteenth Amendment.

(See Pl.'s Br. in Opp'n & Cross-Mot.

for Summ. J., at 13, 17-20.)

"The Due Process Clause of the

Fourteenth Amendment provides 'nor shall any State deprive any

Case 1:19-cv-00222-JRH-BKE Document 40 Filed 03/08/21 Page 10 of 20

person of life, liberty, or property, without due process of law.'"
McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir. 1994) (quoting
U.S. Const, amend. XIV, § 1) (emphasis added).
state

action;

therefore,

the

Fourteenth

Here, there is no
Amendment

is

not

implicated. See Washington v. Glucksberg, 521 U.S. 702, 722 (1997)

(explaining

that

the

''threshold

requirement"

in

Fourteenth

Amendment due process judicial review is establishing "that a

challenged

state

action

implicate

a

fundamental

right"); SP

Frederica, LLC v. Glynn Cnty., 173 F. Supp. 3d 1362, 1373 (S.D.

Ga. 2016) (explaining "the Fifth Amendment applies only as a
limitation on the federal government" while "the Due Process Clause
of the

Fourteenth Amendment . . . explicitly applies to the

states").

Thus, Plaintiff has no claim under the Fourteenth

Amendment.

5. Fifth Amendment

Given Supreme Court precedent, the right to international
travel is more properly analyzed in the context of Fifth Amendment
Due Process.

See Kent v. Dulles, 357 U.S. 116, 125 (1958) ("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."); Zemel, 381 U.S. at 16 n.l7 ("[T]he right to travel

is protected by the Fifth Amendment.").

The Fifth Amendment

provides that "[n]o person shall be . . . deprived of life,
liberty, or property, without due process of law."

10

U.S. Const.

Case 1:19-cv-00222-JRH-BKE Document 40 Filed 03/08/21 Page 11 of 20

amend. V.

Plaintiff alleges that his Fifth Amendment rights to

substantive and procedural due process have been violated,
a. Substantive Due Process

The substantive component of the Fifth Amendment's guarantee

of due process of law "forbids the government to infringe certain
'fundamental' liberty interests at all, no matter what process is

provided, unless the infringement is narrowly tailored to serve a

compelling state interest."

Reno v. Flores, 507 U.S. 292, 301-

302 (1993) {citations omitted). There is no dispute that there is
a constitutional right to international travel.

See Kent, 357

U.S. at 129 ("[A Passport's] crucial function today is control
over exit.

And, as we have seen, the right of exit is a personal

right included within the word 'liberty' as used in the Fifth
Amendment.").

However, the Supreme Court has made evident that

"the freedom to travel outside the United States" is not the same

as the "right to travel within the United States."
453 U.S. 280, 306 (1981).

Haiq v. Agee,

While "[t]he constitutional right of

interstate travel is virtually unqualified . . . [,] 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."

Id. at 307 (internal quotations and citations

omitted). "Thus, legislation which is said to infringe the freedom
to travel abroad is not to be judged by the same standard applied

to laws that penalize the right of interstate travel."
V. Aznavorian, 439 U.S. 170, 176-77 (1978).
11

Califano

Case 1:19-cv-00222-JRH-BKE Document 40 Filed 03/08/21 Page 12 of 20

Plaintiff

asks

this

Court

to

international travel is fundamental.

find

that

the

right

to

However, the Supreme Court

has been presented with multiple opportunities to do so and has
not.

See Eunique v. Powell, 302 F.3d 971, 976-78 (9th Cir. 2002)

(outlining the development of jurisprudence in the right to travel
arena).

Instead,

explicitly

as explained

above, the

Supreme

Court

has

held that legislation infringing on the right to

international travel should not be judged by the same standard as

legislation

infringing

on

the

right

to

interstate

travel.

Moreover, several circuit courts have rejected the idea that the

right to international travel is fundamental.

See Eunique, 302

F.3d at 973 (holding rational basis review applies to restrictions
on

international

travel

rights

that

do

not

implicate

First

Amendment concerns); Weinstein v. Albright, 261 F.3d 127, 140 (2d

Cir. 2001) (holding the ''right to a passport and to travel
internationally, while a liberty interest protected by the Due
Process Clause of the Fifth Amendment, is not a fundamental right

equivalent to the right to interstate travel"); Hutchins v.
District

of

Columbia,

188

F.3d

531,

537

(D.C.

Cir.

1999)

(explaining that the Supreme Court has "made clear that any right
to travel [internationally] . . . [is] distinct from the recognized

right to interstate travel . . . [and] international travel is no
more than an aspect of liberty that is subject to reasonable

government regulation within the bounds of due process, whereas

12

Case 1:19-cv-00222-JRH-BKE Document 40 Filed 03/08/21 Page 13 of 20

interstate travel is a fundamental right subject to a more exacting
standard").

The Supreme Court cautions lower courts to '^^exercise the
utmost care

field."

whenever . . . asked to break new

ground in this

Washington, 521 U.S. at 720 (citations omitted); see also

Campos V. I.N.S., 32 F. Supp. 2d 1337, 1347 (S.D. Fla. 1998)
("[C]ourts should exercise great resistance to expanding the
substantive reach of the Due Process Clause of the Fifth Amendment,

particularly if it requires redefining the category of rights
deemed to be fundamental.").

Thus, this Court will not expand

substantive due process by recognizing a new fundamental right.
The Court now turns to the applicable standard of review.

The Supreme Court has not clarified what standard courts should
apply

in

reviewing

international travel.

statutes

that

infringe

the

right

to

Eleventh Circuit case law is also silent on

the issue. Generally "[sjtatutes that infringe fundamental rights

. . . are subject to strict scrutiny, which requires that the
statute be narrowly tailored to achieve a compelling government
interest."

Williams v. Pryor, 240 F.3d 944, 947 (11th Cir. 2001)

(citations omitted). However, ''when a statute does not implicate

[a] fundamental right[], we must ask whether it is 'rationally

related to legitimate government interests.'"

Doe v. Moore, 410

F.3d 1337, 1345 (11th Cir. 2005) (quoting Glucksberg, 521 U.S. at

728). "The rational basis standard is 'highly deferential' and we

hold legislative acts unconstitutional under a rational basis
13

Case 1:19-cv-00222-JRH-BKE Document 40 Filed 03/08/21 Page 14 of 20

standard

in

only

the

most

exceptional

circumstances."

Id.

(citation omitted); see also Williams, 240 F.3d at 948 ("Almost

every statute subject to the very deferential rational basis
scrutiny standard is found to be constitutional."). In accordance
with this law, and having found a fundamental right has not been

implicated here, the Court concludes that strict scrutiny is not
required.

Plaintiff contends, at the very least, immediate scrutiny

applies.

(Pl.'s Br. in Opp'n & Cross-Mot. for Summ. J., at 28.)

Plaintiff argues "the majority opinion in [Zemel] can be read as

applying

an

intermediate

scrutiny

standard

to

restrictions on the right to international travel.

government
(]Cd_^)

In

Zemel, the Secretary of State refused to validate the appellant's

passport

for

considerations.

travel

to

Cuba

381 U.S. at 13.

because

of

foreign

policy

The Supreme Court rejected the

appellant's argument that "the Secretary's refusal to validate his
passport for travel to Cuba denies him rights guaranteed by the
First Amendment." Id. at 16. Instead, the

less than wholly free

flow of information" that resulted from the restriction was merely
a "factor to be considered in determining whether [an individual]

has been denied due process of law."

Id.

Here, the Court has

already determined that Section 7345 does not implicate the First
Amendment, thus, the heightened scrutiny in Zemel is not warranted.
Therefore, the Court finds that Section 7345 is subject to

rational basis scrutiny.

Notably, the Second and Ninth Circuits
14

Case 1:19-cv-00222-JRH-BKE Document 40 Filed 03/08/21 Page 15 of 20

have also applied rational basis review to similar restrictions on
international travel.

See Eunique, 302 F.3d at 974 (upholding 42

U.S.C. § 652(k) because it ''easily passes" rational basis review);

Weinstein, 261 F.3d 127 at 141 (finding 42 U.S.C. § 652(k)
rational

basis

review).

debt

is

Here,

the

undoubtedly

collection

a

of

legitimate

passes

seriously

delinquent

tax

government

interest.

See Bull v. United States, 295 U.S. 247, 259 (1935)

("[T]axes are the lifeblood of government, and their prompt and
certain availability an imperious need."); Maehr, 2020 WL 967754,

at *6 (citing United States v. First Nat^l Bank of Chi., 699 F.2d
341, 346 (7th Cir. 1983) (stating that the United States' interest

in collecting taxes "is of importance to the financial integrity
of the nation")).

Plaintiff does not dispute this; instead, he

argues the statute is not rationally related to the government s
interest.

Plaintiff's main argument is that Section 7345, which

restricts passports to those with "seriously delinquent tax

debts," is distinguishable from 42 U.S.C. § 652(k), which allows
the Secretary to "revoke, restrict, or limit a passport issued

previously" to an individual that "owes arrearages of child support
in an amount exceeding $2,500."

First, Plaintiff argues most of the challenges to Section
652(k), such as Weinstein, have been litigated pro se and thus are

not persuasive authority.

(Pl.'s Br. in Opp'n & Cross-Mot. for

Summ. J., at 32.) The Court finds no reason to find case law less

persuasive because of the pro se status of a party.
15

Next,

Case 1:19-cv-00222-JRH-BKE Document 40 Filed 03/08/21 Page 16 of 20

Plaintiff argues "child support debts are not ordinary debts . . .
unlike

individual

tax

debts

with

their

trivial

impact

on

the

nation's multi-trillion-dollar budget" and "the lives of children

are

a

more

Treasury."

compelling

interest

(Id. at 33.)

than

adding

pennies

to

the

Even if the government has a "more

compelling" interest in protecting children, that does not take
away from the fact that the government also has a legitimate
interest in collecting tax debts.

Here, the Court has already

determined

legitimate

the

government

has

a

and

significant

interest in collecting seriously delinquent tax debts.

Plaintiff

has offered no argument that this interest is not rationally
related to the Secretary's authority to revoke passports to those
with such debts.

As the Ninth Circuit explained in Eunique:

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,

. . . 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."

302 F.3d at 975.

to tax debts.

The Court finds the same rationale can be applied

Thus, Section 7345 passes rational basis review,

and Plaintiff's substantive due process challenge is rejected as
a matter of law.

16

Case 1:19-cv-00222-JRH-BKE Document 40 Filed 03/08/21 Page 17 of 20

b. Procedural Due Process

Plaintiff

also

argues

the

pre-deprivation

notice

under

Section 7345 fails to satisfy the requirements of due process.

Due process requires that an individual whose rights are to be
affected be given notice and an opportunity to be heard.
Fuentes v. Shevin, 407 U.S. 67, 80 (1972).

See

Moreover, ''the right

to notice and an opportunity to be heard 'must be granted at a

meaningful time and in a meaningful manner.'"

Id. (quoting

Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). This means it "must

be granted at a time when the deprivation can still be prevented."
Id. at 81.

But "unlike some legal rules, [Due Process] is not a

technical conception with a fixed content unrelated to time, place
and circumstances." Mathews v. Eldridge, 424 U.S. 319, 334 (1976)

(quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)).
It "is flexible and calls for such procedural protections as the

particular situation demands." Id. (quoting Morrissey v. Brewer,
408 U.S. 471, 481 (1972)).

Section 7345 provides procedural due process protections.
Before certifying that an individual has a "seriously delinquent

tax debt," a notice of lien must be "filed pursuant to section
6323 and the administrative rights under section 6320 with respect

to such filing have been exhausted or have lapsed" or a levy must

be made pursuant to Section 6331.

See 26 U.S.C. § 7345(b).

Prior to filing a notice of lien. Section 6320 requires that
an individual be given notice of various information, including
17

Case 1:19-cv-00222-JRH-BKE Document 40 Filed 03/08/21 Page 18 of 20

^^the provisions of section 7345 relating to the certification of
seriously delinquent tax debts and the denial, revocation, or
limitation of passports of individuals with such debts pursuant to
section 32101 of the FAST Act"
See id. §§ 6320(a)(3)(B), (E).

and their right to a fair hearing.
Section 6331 also requires the

Secretary to notify an individual of the provisions of Section

7345 prior to proceeding with levy.

See id. § 6331(d)(4)(G).

Thus, an individual receives notice of the consequences of Section

7345 prior to the Commissioner certifying their tax liability as
"seriously

delinquent

tax

debt."

As

Defendants

point

out,

"certification comes only at the tail end of a long series of

opportunities to be heard on the underlying tax liability and to
resolve the seriously delinquent tax debts." (Doc. 35, at 6); see

also supra Part II. These notice and hearing requirements comport
with due process.

B. ne exeat repvhllca

Plaintiff also argues "the statute fails to survive even

minimum scrutiny in light of analogous ne exeat cases under which
there is no rational basis to prevent a taxpayer from leaving the

country unless there is violation of a court order or the hiding
of assets overseas."

(Pl.'s Br. in Opp'n & Cross-Mot. for Summ.

J., at 4.) The power to issue a writ ne exeat republica is codified
at 26 U.S.C. § 7402.

Section 7402 states: "The district courts of

the United States at the instance of the United States shall have

such jurisdiction to make and issue in civil actions, writs and
18

Case 1:19-cv-00222-JRH-BKE Document 40 Filed 03/08/21 Page 19 of 20

orders . . . of /le exeat republics . . . for the enforcement of
the internal revenue laws."

Plaintiff cites to United States v.

Shaheen, 445 F.2d 6 (7th Cir. 1971), and argues that because the

right to international travel is a constitutional right, ^^the
Government may not obtain a writ of ne exeat as a matter of course"
but instead "must establish that the tax debtor is attempting to

leave the country with his assets, or has done so and refuses to

repatriate those assets."

(Pl.'s Br. in Opp'n & Cross-Mot. for

Summ. J., at 35.)

It is true that to issue a writ of ne exeat republics certain

requirements must be met and "the Government has the burden of
demonstrating that the restraint of liberty is a necessary, and
not merely coercive and convenient, method of enforcement."
Shaheen, 445 F.2d at 11.
was not issued here.

enforce tax laws.

However, a writ of ne exeat republics

Instead, Section 7345 is being used to

The Court agrees with the District Court of

Colorado that the predicates required for a writ ne exeat under

Section 7402 are not applicable because "[t]he statute under which

the government revoked plaintiff's passport, 26 U.S.C. § 7345, is
separate and distinct." Maehr, 2020 WL 967754, at *7.
C. Proper Parties

Defendants allege Secretary Mnuchin, Commissioner Rettig, and
Secretary Pompeo are not proper parties to this suit.

35, at 23-25.)

(See Doc.

Because the Court finds Section 7345 is not

19

Case 1:19-cv-00222-JRH-BKE Document 40 Filed 03/08/21 Page 20 of 20

unconstitutional and Plaintiff's suit is due to be dismissed, the
Court will not address this issue.

V. CONCLUSION

For the reasons set forth above, Plaintiff's cross-motion for

summary judgment (Doc. 27) and motion for hearing (Doc. 38) are
DENIED, and Defendants' motion for summary judgment (Doc. 17) is
GRANTED.

The Clerk is directed to ENTER JUDGMENT in favor of

Defendants, TERMINATE all other pending motions, if any, and CLOSE
this case.

ORDER ENTERED at Augusta, Georgia, this

n

day of March,

2021.

/

f

j. randAl hall, 'chief judge

[

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

20