Weinstein v. Albright

• Citation: 261 F.3d 127
• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-6290,DEFENDANTS-APPELLEES,PLAINTIFF-APPELLANT
• Parties: (2nd Cir. 2001) MONTY NEIL WEINSTEIN, (A/K/A MYRON NEIL WEINSTEIN), v. MADELEINE K. ALBRIGHT, INDIVIDUALLY AND AS UNITED STATES SECRETARY OF STATE, DONNA E. SHALALA, INDIVIDUALLY AND AS UNITED STATES SECRETARY OF HEALTH AND HUMAN SERVICES, OLIVIA A. GOLDEN, INDIVIDUALLY AND AS ASSISTANT SECRETARY, ADMINISTRATION FOR CHILDREN AND FAMILIES, DAVID GRAY ROSS, INDIVIDUALLY AND AS COMMISSIONER, FEDERAL OFFICE OF CHILD SUPPORT ENFORCEMENT, NEW YORK STATE OFFICE OF CHILD SUPPORT COLLECTIONS, JOHN DOES 1-10; JANE DOES 1-10; ABC AGENCIES 1-5, ABC ENTITIES 1-5,
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 127

261 F.3d 127 (2nd Cir. 2001)

MONTY NEIL WEINSTEIN, (A/K/A MYRON NEIL WEINSTEIN) PLAINTIFF-APPELLANT, v. MADELEINE K. ALBRIGHT, INDIVIDUALLY AND AS UNITED STATES SECRETARY OF STATE, DONNA E. SHALALA, INDIVIDUALLY AND AS UNITED STATES SECRETARY OF HEALTH AND HUMAN SERVICES, OLIVIA A. GOLDEN, INDIVIDUALLY AND AS ASSISTANT SECRETARY, ADMINISTRATION FOR CHILDREN AND FAMILIES, DAVID GRAY ROSS, INDIVIDUALLY AND AS COMMISSIONER, FEDERAL OFFICE OF CHILD SUPPORT ENFORCEMENT, NEW YORK STATE OFFICE OF

CHILD SUPPORT COLLECTIONS, JOHN DOES 1-10; JANE DOES 1-10; ABC AGENCIES 1-5, ABC ENTITIES 1-5, DEFENDANTS-APPELLEES.

Docket No. 00-6290

August Term, 2000

UNITED STATES COURT OF APPEALS For the Second Circuit

Argued: April 25, 2001

Decided: August 10, 2001

Plaintiff-Appellant Monty Weinstein appeals from a judgment of the District Court for the Southern District of New York (Koeltl, J.), dated August 14, 2000, denying plaintiff's motion for a preliminary injunction and dismissing plaintiff's complaint in its entirety. Plaintiff challenges the government's denial of his passport application and its revocation of his previously issued passport because he was certified as owing more than $5000 in past due child support. Affirmed. [Copyrighted Material Omitted]

Monty Neil Weinstein, appearing pro se.

David S. Jones, Assistant United States Attorney for the Southern District of New York, (Gideon A. Schor, on the brief), for Appellees Madeleine K. Albright, Donna E. Shalala, Olivia A. Golden, & David Gray Ross.

Michael S. Belohlavek, Deputy Solicitor General & Melanie L. Oxhorn, Assistant Solicitor General, submitted a brief on behalf of Appellee New York State.

Before: Jacobs, Parker & Katzmann, Circuit Judges.

Katzmann, Circuit Judge

I. INTRODUCTION

Plaintiff Monty Neil Weinstein ("Weinstein" or "plaintiff") appeals from a judgment of the District Court for the Southern District of New York (Koeltl, J.), dated August 14, 2000, denying plaintiff's motion for a preliminary injunction and dismissing plaintiff's complaint. Plaintiff's complaint alleges that 42 U.S.C. § 652(k) and 22 C.F.R. §§ 51.70(a)(8), 51.72(a) & 51.80(a)(2), which authorize the denial and revocation of a passport to an individual who is more than $5000 in child support arrears without an opportunity for a federal hearing, violate a number of his constitutional rights. We affirm the decision of the district court. We deny plaintiff's due process challenges because the right to pre-deprivation notice and an opportunity to contest the arrears determination before the relevant state agency is adequate to protect plaintiff's liberty interest in having a passport and traveling internationally. We further reject plaintiff's equal protection challenges.

II. FACTS & PROCEDURAL HISTORY

On or about November 22, 1999, plaintiff applied for a new United States passport in preparation for a trip to Israel, even though his previously issued passport was not scheduled to expire until August 2000. Compl.¶ 15. On December 13, 1999, plaintiff received a letter from the United States Department of State indicating that his application for a passport was denied and that his previously issued passport was canceled because he had been certified by New York State as being more than $5000 in arrears on his child support. Compl.¶ 16, Ex. 1.

After being so informed, plaintiff initiated this action against a number of federal officials, including Madeleine Albright, then United States Secretary of State and Donna Shalala, then United States Secretary of Health and Human Services (collectively "federal defendants"), as well as the New York State Division of Child Support Enforcement¹ ("state defendant"). Plaintiff's complaint asserts that 42 U.S.C. § 652(k) and 22 C.F.R. §§ 51.70(a)(8), 51.72(a) & 51.80(a)(2), which authorize the denial of a passport application and the revocation of an existing passport for an individual who owes past due child support exceeding $5,000, violate his rights under the First, Fifth and Fourteenth Amendments of the United States Constitution, and constitute a bill of attainder in violation of Article I, § 9. The complaint further asserts a pendent state law claim for intentional infliction of emotional distress. Plaintiff seeks damages from defendants as well as a declaratory judgment that the statute and regulations are unconstitutional on their face and as applied to him.

Plaintiff moved for a preliminary injunction to bar defendants from denying him a passport. Both federal and state defendants opposed the motion for a preliminary injunction and moved to dismiss the complaint under Fed.R.Civ.P. Rule 12(b)(6). State defendant alternatively moved for summary judgment under Rule 56. Plaintiff then cross-moved for summary judgment. In a thorough opinion, the district court denied plaintiff's motion for a preliminary injunction and granted defendants' motions to dismiss and alternatively state defendant's motion for summary judgment. See Weinstein v. Albright, No. 00 Civ. 1193 (JGK), 2000 WL 1154310, 2000 U.S. Dist. LEXIS 11604 (S.D.N.Y., Aug. 14, 2000).

III. STANDARD OF REVIEW

As the case against federal defendants was dismissed below on defendants' motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure, we take as true all of the allegations contained in plaintiff's complaint and draw all inferences in favor of plaintiff. See IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1058 (2d Cir. 1993). Dismissal is appropriate only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim[s] which would entitle him to relief.'" Tarshis v. Riese Org., 211 F.3d 30 35 (2d Cir. 2000)(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). When considering motions to dismiss the claims of plaintiffs proceeding pro se, courts in this Circuit are instructed to construe the pleadings liberally. See, e.g., Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir. 1999). This is especially true when dealing with civil rights complaints like this one. See id.; Tarshis, 211 F.3d at 35.

As noted, the state defendant also moved for summary judgment and the district court alternatively granted this motion. We review a district court's grant of summary judgment de novo, taking all factual inferences in favor of the non-moving party. See Howley v. Town of Stratford, 217 F.3d 141, 151 (2d Cir. 2000). Summary judgment is appropriate where there are no genuine disputes concerning any material facts, and where the moving party is entitled to judgment as a matter of law. See Fagan v. New York State Electric & Gas Corporation, 186 F.3d 127, 132 (2d Cir. 1999). When parties move for summary judgment against pro se litigants, this court has required that the movant or the district court provide notice to the pro se party which includes "a short and plain statement that all assertions of material fact in the movant's affidavits will be taken as true by the district court unless the pro se litigant contradicts those factual assertions in one or more affidavits made on personal knowledge containing facts that would be admissible in evidence or by submitting other materials as provided in Rule 56(e)." McPherson v. Coombe, 174 F.3d 276, 282 (2d Cir. 1999). In this case it is undisputed that state defendant provided such notice to the plaintiff in this case.

We affirm the district court's grant of summary judgment to the state defendant and also affirm the grant of federal defendants' motion to dismiss.

IV. DISCUSSION

The information with respect to plaintiff's child support arrears was collected by the New York City Administration for Children's Services ("ACS") and entered into a statewide Child Support Management System ("CSMS") which maintains a running tabulation of the arrears. Wootan Aff. ¶¶ 6, 7, Boyle Aff. ¶¶ 4-6. According to an affidavit from a state defendant employee, on August 27, 1999, a "Special Notice" of the determination of child support arrears was sent to all obligors who, like plaintiff, owed more than $5000 in child support payments and therefore qualified for passport suspension.² Boyle Aff. ¶ 7. The CSMS records indicate that the Special Notice was sent to plaintiff at his last address. A generic "Special Notice," without a name or address, was provided to the district court and is in the record on appeal. The Special Notice states that the recipient's past due child support is in excess of $5000. Furthermore, the "Important Information" attachment to the Special Notice specifically advises: "Also, if the amount you owe exceeds $5,000, the United States Secretary of State will refuse to issue a passport to you and may revoke, restrict or limit a passport which was previously issued." The "Important Information" attachment informs the obligor of the right to an administrative review, including the right to an in-person conference, of the determination of arrears. It also advises the obligor of the right to seek state court review of an adverse administrative decision pursuant to Article 78 of the N.Y.C.P.L.R. Plaintiff has never challenged the state's determination of arrears, either administratively or in a state court Article 78 proceeding, despite being counseled by state defendant employees that he can still do so at any time. Because plaintiff was determined to be more than $5,000 in arrears, CSMS automatically transmitted certification of such to the U.S. Department of Health and Human Services ("HHS") on November 12, 1999. Wootan Affidavit ¶ 7, Boyle Affidavit ¶ 9. Pursuant to the statutes and regulations discussed below, HHS then passed along such information to the Secretary of State, which in turn denied plaintiff's application for a new passport and revoked his previously issued passport.

The statutory and regulatory framework for these actions taken by defendants is found at 42 U.S.C. §§ 652(k) & 654(31) and 22 C.F.R. §§ 51.70(a)(8) & 51.72(a). One federal statute requires each state to...