As I have written many times, I believe Congress is the greatest enemy of the American people. One only has to be mildly awake and aware to see that these “representatives of the People” are constantly writing and passing laws that encroach on our liberty and steal the fruits of our labor.

Here is one example:

Jeff Maehr, who resides in Colorado, is a long-time activist in the Tax Honesty Movement. On November 15, 2018, Jeff filed a lawsuit against the U.S. State Department (“State”) challenging State’s revocation of his passport for an alleged federal tax debt. This is a “case of first impression”.

Jeff’s case was filed in the U.S. District Court for the District of Colorado (Denver) and was assigned Case #1:18-cv-02948-PAB-NRN.

Following is a short summary describing how IRC §7345(i) became law during the Obama administration.

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(Source - LexisNexis, “New Law Allowing IRS to Seize Passport”, June 29, 2016, by Mark A. Muntean

“The Fixing America's Surface Transportation Act, ("H.R. 22"), was signed into law on December 4, 2015. [PL 114-94, Title XXXII Offsets, Subtitle A Tax Provisions, Section 32101(a).] The new law was effective on the date of enactment, [IRC § 7345(i)] so this is now part of the federal tax law.

H. R. 22 added new Internal Revenue Code Section 7345, "Revocation or Denial or Passport in Case of Certain Tax Delinquencies" requiring the Secretary of State, on certification by the Treasury, to deny, revoke, or limit the passport of any person who the IRS certifies as owing in excess of $50,000 (referred to as a "seriously delinquent tax debt"). [IRC § 7345(a)] The seriously delinquent debt requirement of $50,000 is adjusted annually for inflation [IRC § 7345(f)], but includes penalties and interest. [IRC § 7345(b)]

Specifically, IRC Section 7345 provides that except in humanitarian or emergency situations, or for individuals serving in a combat zone, on receiving a certification from Treasury, the Secretary of State shall not issue a passport to any individual who has a seriously delinquent tax debt described in such section. [IRC § 7345(e)(1)(A)] Moreover, on receipt of such certification the Secretary of State can revoke a passport previously issued to any individual. [IRC § 7345(e)(2)(A).]

NOTE: A $36,000 tax assessment can quickly become a tax liability in excess of $50,000 when the IRS includes interest and penalties. An individual who is audited for two years (which is more often the case) need only have adjustments of approximately $18,000 from each year to incur the possibility of a seriously delinquent tax debt when interest and penalties are added. Accordingly, the "seriously delinquent tax debt" threshold of $50,000 is not reserved for the "one-percent" but will more often equally impact the little guy.”

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Initially, Jeff filed his case as a pro se Plaintiff. On March 20, 2019, however, he obtained pro bono legal representation from Bennett L. Cohen, Megan Elise Harry and Sean Robert Gallagher of the law firm Polsinelli PC - Denver.

Click the link to read each document in its entirety.

Following is the timeline of filings, with relevant excerpts, since that date:

April 23, 2019 - [Dkt. 32] Counsel filed an Amended Complaint on Jeff’s behalf.

The narrower purpose of this amended complaint is to challenge the Government’s purported revocation of Mr. Maehr’s passport under the FAST Act, 26 U.S.C. § 7345. This recently-enacted statute directs the IRS to provide the State Department with a list of citizens who owe tax debts above $50,000. The State Department then revokes the passport of, or does not issue a passport to, any person on that list.
The right to travel (including internationally) is an established constitutional right. A citizen cannot travel internationally without a passport; and a passport may soon be necessary for domestic travel as well under the Real ID Act.
This new passport revocation regime is plainly unconstitutional. The Government may not deprive citizens of an established constitutional right simply because they owe money to the Government.
Before the FAST Act’s new passport revocation regime began, the Government’s ability to revoke tax debtors’ passports was developed through the common law writ of ne exeat republica, implemented through 26 U.S.C. § 7402(a). [Writ ne exeat republica is a Latin phrase that means “let him not leave the republic.” The writ is issued to prohibit a person from leaving the country without permission of the Court or until certain conditions are fulfilled.] Courts have properly limited the Government’s use of ne exeat to restrict citizens’ constitutional right to travel to situations where the Government establishes that the delinquent taxpayer intends to secrete assets abroad in order to avoid collection of a tax debt, or is capable of but refuses to repatriate assets for this purpose. See, e.g., United States v. Shaheen, 445 F.2d 6 (1971) (reversing district court and quashing writ ne exeat due to Government’s failure to establish adequate predicate for infringing tax debtor’s constitutional right to travel).
The new passport revocation regime implemented by the FAST Act is unconstitutional as applied to any citizen, including Mr. Maehr, who would not be subject to a writ ne exeat under the standards of cases like Shaheen.

This is not a close call. The Government may collect valid debts through ordinary debt collection process, but it may not revoke citizens’ constitutional rights to coerce payment or as punishment for nonpayment. Any attempt by the Government to defend against this as-applied constitutional challenge would lack substantial justification. The Government should confess Mr. Maehr’s as-applied constitutional challenge and immediately reinstate his passport.

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April 23, 2019 - [Dkt. 33] Maehr’s Status Report Regarding Appointment of Counsel.

Pursuant to the hearing held on March 20, 2019, appointed counsel for Plaintiff Jeffrey T. Maehr report to the Court as follows:

At the March 20 hearing, the Court contemplated that Mr. Maehr’s pro se actions against the IRS (no. 18-cv-2273) and the State Department (no. 18-cv-2984) would be consolidated; and that undersigned counsel would appear and represent Mr. Maehr in this consolidated action. However, undersigned counsel explained to the Court that they needed an extension to get up to speed in these matters and consult with Mr. Maehr regarding representation and next steps.

Having now reviewed the matters and conferred with Mr. Maehr, undersigned counsel have determined, and Mr. Maehr has agreed, that counsel’s representation of Mr. Maehr will be limited to challenging the Government’s revocation of his passport under 26 U.S.C. §7345 – the claim that is the focus of the action against the State Department (no. 18-cv-2984). Counsel will not represent Mr. Maehr with respect to challenges to the legality, validity or accuracy of his tax assessments – the claims that are the focus of the action against the IRS (no. 18-cv-2273).

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June 13, 2019 - [Dkt. 46] Government’s Motion to Dismiss Plaintiff’s Amended Complaint.

Argument for Dismissal

A. Standard of Review

Mr. Maehr’s case should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) motion challenges the sufficiency of the complaint. Davis v. United States, 343 F.3d 1282, 1295 (10th Cir. 2003).

B. Mr. Maehr Fails to State a Claim on Which Relief Can Be Granted

1) Preliminary Matters

2) The Statute Does Not Impermissibly Restrict any Right to International Travel

a. Mr. Maehr has not and cannot allege that he has a fundamental right to international travel.

b. Mr. Maehr cannot show that § 7345 is an unreasonable restriction.

3) The Common-Law Writ of Ne Exeat Republica is Not Applicable Here

CONCLUSION

For the reasons set forth above, Mr. Maehr’s suit against the government should be dismissed with prejudice.

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July 25, 2019 - [Dkt. 52] Maehr’s Response to Government’s Motion to Dismiss.

Summary

Title 26 U.S.C. § 7345 revokes tax debtors’ passports, and thus abridges their constitutional right to travel internationally, as a means of coercing them to pay their tax debts. This passport revocation regime violates the Constitution’s Article IV Section 2 Privileges and Immunities Clause, and substantive due process. The Government may only revoke Mr. Maehr’s passport for a compelling reason like national security or foreign policy. At the very least, in this tax debt context, the Government may not revoke Mr. Maehr’s passport unless and until it proves the predicates for obtaining a writ of ne exeat: that Mr. Maehr is trying to secrete assets abroad, or is refusing to repatriate assets that could pay his debt.

Response to the Government’s Background

Argument

A. Standard of Review

B. This Court has mandamus jurisdiction over the State Department and Secretary of State Pompeo

C. The passport revocation regime is unconstitutional under the Supreme Court’s existing privileges and immunities jurisprudence

1. Privileges and immunities jurisprudence applies here

2. Status of civil rights protections under the Privileges and Immunities Clauses

3. The constitutional right of international travel is protected from congressional abridgment under the Article IV Section 2 Privileges and Immunities Clause.

D. The passport revocation regime violates substantive due process.

1. The right to travel internationally is a fundamental right.

2. Even if international travel is not a fundamental right, the passport revocation regime still violates due process unless limited by ne exeat principles

3. The prior passport revocation regime to collect child support is distinguishable – children’s lives and welfare depend on child support.

4. The Government’s additional arguments lack merit.

CONCLUSION

Mr. Maehr’s as-applied challenge to the constitutionality of 26 U.S.C. § 7345 is legally sound under both the Supreme Court’s disused but applicable privileges and immunities jurisprudence, and also its modern substantive due process jurisprudence. His challenge may not be dismissed under Rule 12. Indeed, because Mr. Maehr has not secreted assets abroad and is not attempting to so, he will be entitled to summary judgment for the reasons set forth here.

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August 8, 2019 - [Dkt. 53] Government’s Motion to Dismiss Plaintiff’s Amended Complaint.

I. INTRODUCTION

Mr. Maehr has alleged that the government cannot use § 7345 to revoke the passport issued to him, because, in his view, he has a fundamental, almost inviolable, right to international travel. There is a major flaw in this theory: as the United States explained in its opening brief, federal courts have repeatedly held that, unlike interstate travel, there is no fundamental right to international travel. The right to international travel is a liberty interest protected by the Fifth Amendment's Due Process Clause, which can be subjected to reasonable restrictions within the bounds of due process. Courts have repeatedly upheld reasonable restrictions on international travel, like the restriction found in § 7345. To find for Mr. Maehr would be to go against the overwhelming weight of authority.

II. ARGUMENT

A. Mr. Maehr Has Not Properly Alleged A Claim for Mandamus Relief, And He Has Not Cured The Jurisdictional Defects In His Suit

B. The Privileges and Immunity Clause Does Not Apply To § 7345

C. Mr. Maehr Has Not Shown A Violation Of His Right To Substantive Due Process

The Fifth Amendment Encompasses Both Procedural and Substantive Due Process
Courts Analyzing Substantive Due Process Claims Must Determine Whether The Right At Issue Is Fundamental.
Mr. Maehr's Response Does Not Show There Is a Fundamental Right To International Travel

D. The Writ Ne Exeat Republica And § 7345 Are Different Procedural Tools

III. CONCLUSION

For the reasons set forth in the United States' opening memorandum and above, Mr. Maehr's suit against the government should be dismissed with prejudice.

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September 12, 2019 - [Dkt. 54] Courtroom Minutes Regarding Government’s Motion to Dismiss.

MOTION HEARING
2:08 p.m. Court in session.
Court calls case. Appearances of counsel. Also present by phone Plaintiff Jeffrey Maehr.
This matter is before the Court regarding Motion to Dismiss Plaintiff’s Amended Complaint [Docket No. 46].
Arguments by counsel.
ORDERED: Motion to Dismiss Plaintiff’s Amended Complaint [Docket No. 46] TAKEN UNDER ADVISEMENT.
3:56 p.m. Court in recess.

Hearing concluded.
Total in-court time: 01:48

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September 12, 2019 - [Dkt. 55] Recommendation of Magistrate Judge to Grant Government's Motion to Dismiss.

N.Reid Neureiter
United State Magistrate Judge
This case is before the Court pursuant to the Order (Dkt. #47) issued by Chief Judge Philip A. Brimmer referring Defendant United States’ Motion to Dismiss Plaintiff’s Amended Complaint. Dkt. #46. The Court has carefully considered the motion, response (Dkt. #52), and reply. Dkt. #53. On September 12, 2019, the Court heard argument on the motion. See Dkt. #54. The Court has taken judicial notice of the Court’s file, considered the applicable Federal Rules of Civil Procedure and case law, and recommends that Defendant’s Motion to Dismiss be granted. This matter involves the constitutionality of a federal statute that authorizes the revocation of the passport of American citizens found to be seriously delinquent in their payment of income tax to the Internal Revenue Service. I find the statute at issue constitutional as applied to Mr. Maehr.

I. Procedural History

II. Mr. Maehr’s Allegations

III. FAST Statute Legislative History

IV. FAST Statute

ANALYSIS

I. Jurisdiction

II. United States’ Motion to Dismiss (Dkt. #46)

A. Mandamus

B. Privileges and Immunities

C. Substantive Due Process

D. Writ Ne Exeat Republica

CONCLUSION

Accordingly, this Court finds that Mr. Maehr cannot carry his burden to demonstrate that the State Department’s decision to revoke his passport based on the certification by the IRS under the FAST statute is unconstitutional. The Court also finds that amendment of the Complaint would be futile.

RECOMMENDATION

WHEREFORE, for the foregoing reasons, it is hereby RECOMMENDED that Defendant United States’ Motion to Dismiss (Dkt. #46) be GRANTED, and that Plaintiff’s Amended Complaint (Dkt. #32) be DISMISSED WITH PREJUDICE.

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October 10, 2019 - [Dkt. 56] Maehr's Objections to Magistrate Neureiter's Recommendation to Dismiss.

I. SUMMARY
The Magistrate Judge erred by holding that the Government’s interest in collecting tax debts is a good enough reason to revoke tax debtors’ established constitutional right of international travel. The Government can collect tax debts many ways (including setoff), but not by revoking tax debtors’ constitutional rights until they pay up.

This Court should reject Magistrate Judge Neureiter’s recommendation to dismiss Mr. Maehr’s complaint. Once Mr. Maehr establishes that he is not trying to secrete assets abroad and has no assets abroad that he can repatriate (an easy matter), this Court should declare that the FAST Act passport revocation regime is unconstitutional as applied to him, and order the State Department to reinstate his passport.

II. BACKGROUND

III. ARGUMENT

A. Supreme Court caselaw on the right of international travel.
B. The passport revocation regime violates substantive due process even if the right of
international travel is not fundamental, per the apposite ne exeat cases.
C. The right to travel internationally is a fundamental right.
D. The prior passport revocation regime to collect child support is distinguishable – children’s lives and welfare depend on child support.
E. The passport revocation regime violates privileges and immunities jurisprudence.

IV. CONCLUSION

Congress sometimes passes laws that it knows, or should know, are plainly unconstitutional.
See Texas v. Johnson, 491 U.S. 397 (1989) (striking down Texas’s flag-burning statute on First
Amendment grounds); United States v. Eichman, 496 U.S. 310 (1990) (striking down federal flag-burning law enacted after Johnson for the same reasons). The FAST Act’s passport revocation regime is plainly unconstitutional under the Supreme Court’s modern substantive due process jurisprudence, and also its disused but still authoritative and applicable privileges and immunities jurisprudence. Indeed, because Mr. Maehr has not secreted assets abroad and is not attempting to do so, he will be entitled to summary judgment for the reasons set forth here. The Court should therefore reject the Magistrate Judge’s recommendation to grant the Government’s motion to dismiss, and allow this action to move forward.

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October 10, 2019 - [Dkt. 57] Court’s Minute Order Striking Maehr's “Objections to Magistrate Neureiter's Recommendation to Dismiss” for failure to comply with D.C. Colorado Local Rule 10.1(e).

MINUTE ORDER: STRIKING Plaintiff Maehr's Objections to Magistrate Judge Neureiter's Recommendation to Dismiss 56 , for failure to comply with D.C.COLO.LCivR 10.1(e) ("All pleadings and documents shall be double spaced."). By Chief Judge Philip A. Brimmer on 10/10/19.

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October 10, 2019 - [Dkt. 58] Government’s Partial Objection to Magistrate’s Report and Recommendation.

The United States, the proper party acting on behalf of the Internal Revenue Service and the Department of State, submits a limited objection to Magistrate Judge Neureiter’s Report and
Recommendation. (Dkt. 55, the “R&R”). The R&R recommended that plaintiff Jeffrey Maehr’s
operative complaint (Dkt. 32) be dismissed with prejudice. The United States fully agrees with
that outcome. However, the United States respectfully submits this short statement to address a
jurisdictional defect, to clarify the record moving forward, and to avoid any suggestion of waiver.
I. ARGUMENT

The R&R appears to assume that Mr. Maehr has asserted a proper basis for jurisdiction, and that he can style his suit as a request for mandamus relief against the Secretary of State. However, “[i]t is elementary that the United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005), quoting United States v. Mitchell, 445 U.S. 535, 538 (1980) (additional quotation omitted). That means that if Mr. Maehr wishes to sue the United States, he must point to an explicit waiver of sovereign immunity. It also means that the nature of the waiver governs the type of action he may bring. He is limited to the causes of action that Congress has specifically provided.

II. CONCLUSION

For the reasons stated above and in the United States’ prior briefing, the Court should adopt the R&R’s recommendation, and order that Mr. Maehr’s complaint be dismissed with prejudice.

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October 10, 2019 - [Dkt. 59] Maehr's Objections to Magistrate Neureiter's Recommendation to Dismiss.

I. SUMMARY

The IRS has collection tools for tax debts that make private debt collectors drool. In addition to the familiar legal methods of levy and execution, garnishment, etc. the IRS typically enjoys priority over private creditors; super-priority over other government creditors; and the IRS can set off federal benefits like Social Security against debts (as it is doing with Mr. Maehr). But
now the Government seeks to go a step further, by revoking tax debtors’ constitutional rights until they pay up. That violates basic principles of substantive due process. We enshrine some rights as constitutional rights precisely to prevent the Government from taking them away without a good enough reason; and making debt collection easier is not a good enough reason.
In 2015, Congress decided that revoking tax debtors’ passports would increase “tax compliance.” See Recommendation, Dkt. 55 at 5. The FAST Act’s passport revocation regime
revokes tax debtors’ constitutional right of international travel until they pay their tax debts. But
core principles of substantive due process, as well as the Supreme Court’s disused but still
applicable privileges and immunities jurisprudence, confirm that the Government may not suspend citizens’ constitutional right of international travel without a good enough reason, such as national security, foreign policy, or (in the tax debt context, per the holdings of the apposite and controlling ne exeat cases) evidence that a tax debtor is trying to prevent collection by secreting assets abroad, or is refusing to repatriate assets that could pay his debt. If merely owing a tax debt were a good enough reason to revoke tax debtors’ passports and abridge their right to travel internationally, then federal courts would revoke tax debtors’ passports every time the Government asks for a writ of ne exeat. But as the late Justice Stevens explained from his Seventh Circuit bench in the leading ne exeat case:

When the relief impinges upon a constitutionally protected personal liberty, … the Government has the burden of demonstrating that the restraint of liberty is a necessary, and not merely coercive and convenient, method of enforcement. United States v. Shaheen, 445 F.2d 6, 10-11 (7th Cir. 1971) (emphases added).

The Magistrate Judge erred by holding that the Government’s interest in collecting tax debts is a good enough reason to revoke tax debtors’ established constitutional right of international travel. The Government can collect tax debts many ways (including setoff), but not by revoking tax debtors’ constitutional rights until they pay up.

II. BACKGROUND

III. ARGUMENT

IV. CONCLUSION

Congress sometimes passes laws that it knows, or should know, are plainly unconstitutional. See Texas v. Johnson, 491 U.S. 397 (1989) (striking down Texas’s flag-burning statute on First Amendment grounds); United States v. Eichman, 496 U.S. 310 (1990) (striking down federal flag-burning law enacted after Johnson for the same reasons). The FAST Act’s passport revocation regime is plainly unconstitutional under the Supreme Court’s modern substantive due process jurisprudence, and also its disused but still authoritative and applicable privileges and immunities jurisprudence. Indeed, because Mr. Maehr has not secreted assets abroad and is not attempting to do so, he will be entitled to summary judgment for the reasons set forth here. The Court should therefore reject the Magistrate Judge’s recommendation to grant the Government’s motion to dismiss, and allow this action to move forward.

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October 24, 2019 - [Dkt. 60] Government's Response to Plaintiff's Objection to Magistrate's Report and Recommendation to Dismiss.

Magistrate Judge Neureiter has issued a Report and Recommendation (Dkt. 55, the “R&R”) recommending that plaintiff Jeffrey Maehr’s complaint be dismissed with prejudice. The United States filed a limited objection to address a jurisdictional defect (Dkt. 58), but otherwise agrees with the recommended outcome. However, Mr. Maehr disagrees with the R&R in almost every respect, and has filed his own objection. (Dkt. 59). The United States hereby responds.

I. INTRODUCTION

The R&R thoroughly analyzed Mr. Maehr’s challenge to 26 U.S.C. §7345 and found it lacking on all fronts. As the R&R discussed in its detailed background section, §7345 directs the IRS to identify a narrow class of delinquent taxpayers who have proved resistant to the IRS’s normal collections or settlement procedures, and restricts those taxpayers’ passport eligibility. Mr. Maehr suggests that he, and similarly situated individuals, should be free to enjoy the privileges of international travel and the protections of a U.S. passport without meeting one of the basic obligations of U.S. citizenship. He is incorrect, and the Court should dismiss his suit.

II. ARGUMENT

A. The R&R Correctly Determined §7345 Does Not Violate Due Process.

1. There is no fundamental right to international travel.

2. Even if there were a fundamental right to international travel, § 7345
would be a permissible restriction.

a. The statute is narrowly tailored to meet a compelling need.

b. The procedures applicable to the writ ne exeat republica do not alter
the analysis.

B. Mr. Maehr Has Conceded His Initial Privileges And Immunities Claim,
And His Revised Claim Also Fails.

III. CONCLUSION

For the reasons stated above and in the United States’ prior briefing, the Court should adopt the R&R’s recommendation, and order that Mr. Maehr’s complaint be dismissed with prejudice.

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October 24, 2019 - [Dkt. 61] Maehr’s Response to Government's Partial Objection to Magistrate's Report and Recommendation.

Plaintiff Jeffrey T. Maehr responds to the Government’s partial objection [ECF 58] to the portion of Magistrate Judge Neureiter’s recommendation [ECF 55] determining that the Court has jurisdiction to entertain this action against the State Department.

I. SUMMARY OF RESPONSE

While Mr. Maehr does not concede that he owes a seriously delinquent tax debt, this action assumes arguendo that he does, and maintains that the Government still may not revoke his passport and thereby take away his established constitutional right to travel internationally just because he owes an ostensible debt. Mr. Maehr therefore seeks an order directing the State Department (and if necessary Secretary of State Mike Pompeo) to reinstate his passport.

The Government seeks to lead Mr. Maehr and the Court down a garden path it blazes with inapposite sovereign immunity arguments. According to the Government, the FAST Act expressly permits suits against the Commissioner of Internal Revenue to challenge one’s certification as owing a seriously delinquent tax debt, so that kind of suit is the only suit this Court has jurisdiction to entertain. The specific relief Mr. Maehr seeks – a court order directing the State Department to reinstate his passport regardless of whether he owes a debt or not – is supposedly barred by sovereign immunity.

We fought the Revolutionary War to rid ourselves of such notions of sovereign immunity. There may be prudential limits on actions for damages against the Government, but not where a claimant simply seeks injunctive relief to remedy a constitutional violation by a federal agency or officer. This Court has mandamus jurisdiction to entertain Mr. Maehr’s request that the Court order the State Department to reinstate his passport under 28 U.S.C. § 1361 (mandamus jurisdiction over federal officers, employees and agencies) and the long-established Larson / Dugan exception to sovereign immunity. See McQueary v. Laird, 449 F.2d 608, 610 (10th Cir. 1971) (applying Larson / Dugan exception to sovereign immunity, although denying the
requested injunctive relief).

II. ARGUMENT

A. The Larson / Dugan exception applies.

B. The mandamus remedy sought here is limited and appropriate.

C. The Court can amend the caption if necessary

III. CONCLUSION

This action is properly framed and captioned. It is an action against the State Department and Secretary of State Mike Pompeo in his official capacity, asking for relief in the nature of mandamus: reinstatement of Mr. Maehr’s passport. This requested mandamus relief is warranted by the unconstitutionality of the FAST Act’s passport revocation regime, codified at 26 U.S.C. § 7345 and 22 U.S.C. § 2714a(e)(2). The Government has responded to the challenge. This Court has jurisdiction to decide it under the Larson / Dugan exception to sovereign immunity. Should the Court determine that it is important for the caption to name the United States as a defendant,
in addition to or in lieu of the Department of State and Secretary of State Pompeo, Mr. Maehr has no objection to the caption being so modified.

This Court should adopt Magistrate Judge Neureiter’s correct jurisdictional analysis, but reject his merits analysis recommending that Mr. Maehr’s complaint be dismissed because the Government’s interest in collecting tax debts supposedly justifies revoking the tax debtors’ constitutional rights until they pay up.

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November 26, 2019 - [Dkt. 62] Government's Notice of Supplemental Authorities Related to Pending Motion to Dismiss.

The United States respectfully calls the Court’s attention to a recent Tenth Circuit decision, Abdi v. Wray, No. 18-4078, 2019 U.S. App. LEXIS 33672, __ F.3d __ (10th Cir. Nov. 12, 2019), that is relevant to the United States’ pending motion to dismiss this lawsuit.

Plaintiff Jeffrey Maehr challenges the government’s ability to revoke the passports of taxpayers who have seriously delinquent tax debts, and alleges that he has a fundamental right to international travel. (See generally Dkt. 32 (amended complaint); Dkt. 46 (motion to dismiss)). The decision in Abdi addresses claims that the government violated travel rights, although not in the tax context. The United States attaches a copy of the decision for the Court’s convenience.

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November 26, 2019 - [Dkt. 62-1] Abdi v. Wray (D.C. No. 2:17-cv-00622-DB) in Support of Government's Notice of Supplemental Authorities Related to Pending Motion to Dismiss.

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December 4, 2019 - [Dkt. 63] Maehr's Response to Government's Notice of Supplemental Authority

Plaintiff Jeffrey T. Maehr agrees with the Government that the recent Tenth Circuit decision in Abdi v. Wray, no. 18-4078 (10th Cir. 11/12/2019) [slip op. at ECF 62-1] is important supplemental authority for this Court’s review of Magistrate Judge Neureiter’s recommendation to dismiss Mr. Maehr’s lawsuit. Mr. Maehr submits that the Abdi decision supports his position that the right to travel abroad is a fundamental right for substantive due process purposes.

Abdi is the Tenth Circuit’s first published decision addressing the constitutional right of international travel. Abdi sued various government officials to be taken off the TSA’s “Selectee List” which subjected Abdi to enhanced screening at airports for both domestic and international flights. The Tenth Circuit ruled that such enhanced screening was not a legally cognizable infringement of his constitutional rights of interstate or international travel. The Court therefore affirmed the dismissal of Abdi’s lawsuit without determining whether the right of international travel is a fundamental or lesser right; or determining whether the Government’s interest in safe air travel justifies the inconvenience that “selectees” like Abdi endure, or the amount of process
Abdi should get to challenge his inclusion on this list.

Mr. Maehr’s claim differs from Abdi’s in at least two dispositive ways:

• In Mr. Maehr’s case, the Government’s revocation of his passport makes international travel impossible, not just less convenient; and

• Mr. Maehr readily acknowledges that maintaining safe skies (national security) is the sort of compelling interest that may justify restricting a fundamental right; but here, the Government is restricting Mr. Maehr’s international travel to coerce him to pay a debt rather than for national security or any other compelling reason.

The Tenth Circuit’s basis for affirming the dismissal in Abdi therefore cannot and does not apply to Mr. Maehr.

However, the Tenth Circuit’s constitutional analysis in Abdi supports Mr. Maehr’s position that the right of international travel is a fundamental right.

In the course of discussing the constitutional right to travel, the Tenth Circuit took care not to casually characterize the right of international travel as less than fundamental, the way other circuits have. E.g. Weinstein v. Albright, 261 F.3d 127, 140 (2nd Cir. 2001). Instead, the Tenth Circuit properly looked to Supreme Court precedent to insure that it neither created a new substantive due process right of international travel, nor gave this right less substantive due process weight than Supreme Court precedent requires. Slip op. at 14 (“[W]e rely on Supreme Court precedent to articulate the rights to travel interstate and internationally that are at stake.”) Such careful analysis is especially warranted because the Supreme Court’s key right-to-travel cases all predate its more recent analytical approach to fundamental rights developed in
Washington v. Glucksberg, 521 U.S. 702, 721-22 (1997).

)

[ RAM Note: Read the 6-page Response for the full text.]

)

Approaching the right to travel per the Tenth Circuit’s careful analysis, rather than the convenient binary shorthand other circuits have uncritically adopted, fully supports Mr. Maehr’s claim. There are no national security, foreign policy or other truly compelling interests to justify the Government’s revocation of Mr. Maehr’s right to travel abroad.

The Government’s only proffered interest here is making debt collection easier. While this may be a legitimate government interest, it is not the sort of compelling interest that can justify curtailing an established constitutional right that is rooted in the Magna Carta, “part of our heritage” and “basic in our scheme of values” – i.e. a fundamental right. Kent, 357 U.S. at 125; United States v. Shaheen, 445 F.2d 6, 10-11 (7th Cir. 1971) (because passport revocation to coerce debt payment “impinges upon a constitutionally protected personal liberty, … the Government has the burden of demonstrating that the restraint of liberty is a necessary, and not merely coercive and convenient, method of enforcement.”).

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U.S. District Court for the District of Colorado (Denver)

18-2948 Docket Sheet