|MINNEAPOLIS PERSONAL INJURY ATTORNEY|
Risenhoover v. Washington Co. Commty. Svcs.: US District Court : FAMILY | CONSTITUTIONAL LAW - losing right to cross borders isn't being in custody; low standard for restricting travel outside U.S.UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Paul Maas Risenhoover,
MEMORANDUM OPINION AND
Civil No. 07-4509 ADM/AJB
Washington County Community Services
and Secretary of State Condoleezza Rice,
Paul Maas Risenhoover,
Civil No. 07-4518 ADM/AJB
Theresa Wilson, Patricia Kinzer,
Jenna Pennfield, Washington County
Community Services, Secretary of State
Condoleezza Rice, and John or Jane Doe
Secretary of Health and Human Services,
Paul Maas Risenhoover, pro se.
Gregory G. Booker, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of
Secretary of State Condoleezza Rice.
Kari A. Lindstrom, Esq., Washington County Attorney’s Office, Stillwater, MN, on behalf of
Theresa Wilson, Patricia Kinzer, Jenna Pennfield, and Washington County Community Services.
These related matters are before the undersigned United States District Judge for
consideration of: (1) Petitioner Paul Maas Risenhoover’s (“Petitioner”) Objections [Civ. No. 07-
4509 Docket No. 6] to Magistrate Judge Arthur J. Boylan’s Report and Recommendation
(“R&R”) [Civ. No. 07-4509 Docket No. 5] that Petitioner’s “Petition under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody” (“28 U.S.C. § 2254 Petition”) [Civ. No.
07-4509 Docket No. 1] be denied; (2) Petitioner’s Motion for Temporary Restraining Order [Civ.
No. 07-4509 Docket No. 2]; (3) Petitioner’s Motions to Stay [Civ. No. 07-4509 Docket Nos. 7
and 8]; (4) Petitioner’s Motions to Supplement Habeas Petition [Civ. No. 07-4509 Docket Nos.
12 and 13]; (5) Petitioner’s “Petition for Writ of Habeas Corpus [by a] Person in Federal
Custody under Title 28 U.S.C. Section 2241” (“28 U.S.C. § 2241 Petition”) [Civ. No 07-4518
Docket No. 1]; (6) Petitioner’s Ex Parte Motion for Writ of Mandamus [Civ. No. 07-4518
Docket No. 42] in Civil Number 07-4518. For the reasons set forth below, Petitioner’s
Objections are overruled, Petitioner’s 28 U.S.C. § 2241 and § 2254 Petitions, Motion for
Temporary Restraining Order, Motions to Stay, and Motions to Supplement Habeas Petition are
denied with prejudice.
A. Procedural History
Petititioner’s 28 U.S.C. § 2241 and § 2254 Petitions were filed and docketed separately
on November 2, 2007. Although both Petitions raise issues arising out of the same nucleus of
facts—the potential revocation of Petitioner’s United States passport because of past due child
support payments—the Petitions were initially assigned to different judges before being
reassigned to the undersigned United States District Judge. The procedural posture regarding
each Petition is slightly different.
Judge Boylan’s November 8, 2007, R&R in Civil Number 07-4509 recommends
summary denial of Petition’s 28 U.S.C. § 2254 Petition because of lack of subject matter
jurisdiction. R&R at 2; see Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts (“If it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner.”). Neither Washington County Community Services
(“WCCS”) nor Secretary of State Condoleezza Rice (the “Secretary of State”) has appeared in
Civil No. 07-4509.
In Civil Number 07-4518, Magistrate Judge Janie S. Mayeron ordered that the
respondents file responses limited to the issue of subject matter jurisdiction. Nov. 27, 2007,
Order [Civ. No. 07-4518 Docket No. 4]. WCCS and its agents Theresa Wilson (“Wilson”),
Patricia Kinzer (“Kinzer”), Jenna Pennfield (“Pennfield”) (Wilson, Kinzer, Pennfield, and
WCCS collectively are the “WCCS Respondents”) filed a joint Response [Civ. No. 07-4518
Docket No. 34] on December 21, 2007, and the Secretary of State filed a Response [Civ. No. 07-
4518 Docket No. 35] on December 27, 2007. The Secretary of Health and Human Services has
not appeared in Civil Number 07-4518.
Because Petitioner’s Petitions in Civil Numbers 07-4509 and 07-4518 arise out of the
same nucleus of operative facts and present nearly identical claims, this Court addresses the
claims raised in both Petitions in this Order.
B. 42 U.S.C. § 652(k)
42 U.S.C. § 652(k) establishes a mechanism for the denial of a passport application and
the revocation of an existing passport of an individual who owes more than ,500 in past due
child support. Under § 652(k), a state agency certifies to the Department of Health and Human
Services (“DHHS”) that an individual owes more than ,500 in past due child support. 42
U.S.C. § 652(k)(1). The secretary of DHHS then transmits the certification to the secretary of
state. Id. Upon receiving the certification, “[t]he Secretary of State shall . . . refuse to issue a
passport to such individual, and may revoke, restrict, or limit a passport issued previously to
such individual.” 42 U.S.C. § 652(k)(2). In 2005, the statutory amount that triggered
certification was ,000. 42 U.S.C. § 652(k)(1) (2005).
C. Factual Background
On March 20, 1995, an Oklahoma state court entered a decree of divorce dissolving the
marriage of Petitioner and Ying Liang (“Liang”), awarding primary custody of the couple’s
minor son to Petitioner, and ordering Liang to pay child support of 4.92 per month to
Petitioner. Civ. No. 07-4509 Mot. for TRO [Civ. No. 07-4509 Docket No. 2] at 29-32. On July
25, 1997, the Oklahoma court entered an order reflecting an agreement between Petitioner and
Liang that primary custody of the couple’s child be awarded to Liang and that Petitioner pay
child support of 0 per month to Liang beginning in May 1997. 28 U.S.C. § 2241 Petition
In 2005, Liang, who had relocated to Washington County, Minnesota, sought
enforcement of the 1997 Oklahoma child support order through WCCS. Civ. No. 07-4509 Mot.
for TRO at 2. On December 15, 2005, the State Department issued Petitioner a limited-validity
passport rather than a full-validity passport because DHHS had transmitted WCCS’s certification
that Petitioner owed more than ,000 in past due child support. Washington Decl. [Civ. No. 07-
4518 Docket No. 36] ¶ 7. The limited-validity passport was valid only for direct return to the
United States. Id. ¶ 7. Petitioner was living in Taiwan in December 2005. Id. Ex. 2. On
February 22, 2006, the State Department issued a full-validity passport to Petitioner based on
DHHS’s notification that Petitioner had paid the outstanding child support. Id. ¶ 8.
In March 2007, WCCS certified to DHHS that Petitioner owed more than ,500 in child
support. 28 U.S.C. § 2241 Petition at 2. On April 24, 2007, DHHS transmitted WCCS’s
certification to the State Department. Washington Decl. ¶ 9. Petitioner filed his 28 U.S.C.
§ 2241 and § 2254 Petitions because the visa pages in his passport are full and he is concerned
the State Department will revoke his passport if he submits it for the addition of visa pages. Civ.
No. 07-4509 Mot. for TRO at 1-2. The record is unclear regarding Petitioner’s whereabouts.
Although recent communications to the Court reflect an address in Taiwan, Petitioner states he is
not currently in Taiwan. Objections at 8.
A. This Court Lacks Subject Matter Jurisdiction
1. Standard of Review
Rule 4 of the Rules Governing Section 2254 cases provides that a district court must
dismiss a § 2254 petition “[i]f it plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court.” Rule 4 is applicable to § 2241 habeas
cases through Rule 1(b). In reviewing subject matter jurisdiction, this Court relies exclusively
on Petitioner’s Petitions and exhibits.
2. Petitioner is Not in Custody
Federal jurisdiction exists over petitions for habeas corpus only when the petitioner is in
The writ of habeas corpus shall not extend to a prisoner unless—
(1) He is in custody under or by color of the authority of the United States . .
(2) He is in custody for an act done or omitted in pursuance of an Act of
Congress, or an order, process, judgment or decree of a court or judge of
the United States; or
(3) He is in custody in violation of the Constitution or laws or treaties of the
United States . . . .
28 U.S.C. § 2241(c)(1)-(c)(3). Section 2254 authorizes federal district courts to review habeas
claims brought by individuals who are “in custody pursuant to the judgment of a State court.”
Judge Boylan recommends denial of Petitioner’s § 2254 Petition because neither Petitioner’s
§ 2254 Petition nor his numerous memoranda and exhibits suggest that Petitioner is in custody
pursuant to the judgment of a Minnesota court. This Court agrees. The plain language of the
federal habeas statutes “contemplate a proceeding against some person who has the immediate
custody of the party detained, with the power to produce the body of such party before the court
or judge, that he may be liberated if no sufficient reason is shown to the contrary.” Wales v.
Whitney, 114 U.S. 564, 574 (1885) (quoted in Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004)).
Given that Petitioner is somewhere in Asia, it is clear that neither WCCS nor the
Secretary of State exercises immediate physical custody over Petitioner. Recognizing this,
Petitioner cites the Supreme Court’s statement in Padilla that federal courts “no longer require
physical detention as a prerequisite to habeas relief.” 542 U.S. at 437. Petitioner argues he is
effectively in custody, wherever he is, because he is unable to travel internationally without a
passport. However, this Court agrees with Judge Boylan that Petitioner is not in custody as
contemplated by the federal habeas statutes. Therefore, Petitioner’s Objections to the R&R are
overruled and Petitioner’s § 2254 Petition is denied.
The reasoning in Judge Boylan’s R&R also applies to Petitioner’s § 2241 Petition, in
which Petitioner alleges he is in federal custody. For the reasons stated above, the Court finds
that neither WCCS nor the Secretary of State are holding Petitioner in federal custody within the
meaning of the habeas statutes. Therefore, Petitioner’s § 2241 Petition is denied.
B. Petition’s Constitutional Challenges Fail
1. Standard of Review
In the alternative, the Court finds Petitioner is not entitled to habeas relief under 28
U.S.C. § 2241 or § 2254 because his constitutional claims fail on the merits. In addressing these
claims, the Court considers the filings submitted by the Secretary of State and by the WCCS
Respondents. Therefore, the Court applies the summary judgment standard in reviewing these
claims. Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue “if
the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the Court views the
evidence in the light most favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465,
470 (8th Cir. 1995). The nonmoving party may not “rest on mere allegations or denials, but
must demonstrate on the record the existence of specific facts which create a genuine issue for
trial.” Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
2. Petitioner’s Facial Challenges to 42 U.S.C. § 652(k)
Petitioner argues that the passport denial scheme of 42 U.S.C. § 652(k), on its face,
violates the Due Process Clause and the Equal Protection Clause. Petitioner also argues that 42
U.S.C. § 652(k) amounts to an unconstitutional bill of attainder. The Second and Ninth Circuits
have rejected similar constitutional challenges to 42 U.S.C. § 652(k). Eunique v. Powell, 302
F.3d 971 (9th Cir. 2002); Weinstein v. Albright, 261 F.3d 127 (2d Cir. 2001). This Court agrees
with the reasoning in those cases. 42 U.S.C. § 652(k) provides procedural due process
protections. Before certifying that an individual owes child support, a state agency must afford
the affected individual with “notice of such determination and the consequences thereof, and an
opportunity to contest the determination.” 42 U.S.C. § 654(31)(a). Further, federal regulations
require that each state have in place “an administrative complaint procedure . . . to allow
individuals the opportunity to request an administrative review, and take appropriate action when
there is evidence that an error has occurred or an action should have been taken on their case.”
45 C.F.R. § 303.35 (2007). These procedures satisfy procedural due process.
Petitioner also attempts to raise a substantive due process claim. “The constitutional
right of interstate travel is virtually unqualified. By contrast 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 . . . [and] can be regulated within the bounds of due process.”
Califano v. Torres, 435 U.S. 1, 5 n.6 (1978) (citations omitted). Therefore, “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 . . . .” Califano v. Aznavorian, 439 U.S. 170, 176-
77 (1978). The Supreme Court has not clarified what standard courts should apply in reviewing
statutes that infringe the right to travel abroad. Eighth Circuit case law is silent on the issue.
The Ninth Circuit has held that “[g]iven the lesser importance of this freedom to travel abroad,
the Government need only advance a rational, or at most an important, reason” for restricting
international travel. Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431, 1439 (9th Cir.
Assuming arguendo that the Government needs an important reason to interfere with an
individual’s right to international travel, the Court finds that Congress has an important interest
in parents paying child support “because unsupported children must often look to the public fisc,
including the federal treasury, for financial sustenance.” Eunique, 302 F.3d at 975. The passport
denial statute is substantially related to this interest because it focuses the mind of a parent, such
as Petitioner, who wishes to travel internationally “on a more important concern—the need to
support one’s children first.” Id. Therefore, Petitioner’s substantive due process challenge is
Petitioner next argues that the passport denial scheme of 42 U.S.C. § 652(k) violates the
Equal Protection Clause because it has a greater effect on individuals domiciled abroad who
often travel internationally than on individuals domiciled in the United States who do not often
travel internationally. 28 U.S.C. § 2241 Petition Attach. 2 at 6. However, this claim fails
because § 652(k) denies a passport to all individuals who owe more than ,500 in past due child
support, regardless of whether they are domiciled in the United States or abroad.
Petitioner also argues that § 652(k) amounts to an unconstitutional bill of attainder in
violation of Article I, § 9 of the Constitution. “Bills of attainder are ‘legislative acts, no matter
what their form, that apply either to named individuals or to easily ascertainable members of a
group in such a way as to inflict punishment on them without a judicial trial.’” Citizens for
Equal Protection v. Bruning, 455 F.3d 859, 869 (8th Cir. 2006) (quoting United States v. Lovett,
328 U.S. 303, 315 (1946)). Petitioner’s bill-of-attainder argument is rejected because he has no
basis to argue that § 652(k) singles him out.
Alternatively, Petitioner’s argument fails because § 652(k) is not punitive in nature.
“There are three necessary inquiries regarding whether [§ 652(k)] inflicts forbidden punishment:
an historical test, a functional test, and a motivational test.” WMX Techs. v. Gasconade County,
105 F.3d 1195, 1202 (8th Cir. 1997). Historically, bills of attainder often imposed the death
penalty, imprisonment, banishment, and the punitive confiscation of property. Selective Serv.
Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 852 (1984). Section 652(k) is not a
bill of attainder under the historical test because denying a passport to individuals who owe
substantial amounts of child support to prevent them from traveling internationally is not the
type of traditional punishment covered by the Bill of Attainder Clause. Moreover, Petitioner can
become eligible for a passport by paying his past due child support. See Selective Serv. Sys.,
468 U.S. at 853 (holding that a statute that denies financial aid to individuals who fail to register
for selective service but leaves open the possibility of becoming eligible by registering is not a
bill of attainder).
Under the functional test, § 652(k) is not punitive because “when viewed in terms of the
type and severity of burdens imposed, [§ 652(k)] reasonably can be said to further nonpunitive
legislative purposes.” Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 475-76 (1977). A
nonpunitive purpose is encouraging payment of child support. Finally, § 652(k) is not a bill of
attainder under the motivational test “because there are no facts showing that Congress intended
to punish parents who owe child support arrearages by denying their passport applications.”
Weinstein v. Albright, Civ. No. 00-1193, 2000 U.S. Dist. LEXIS 11604, at *25-26 (S.D.N.Y.
Aug. 14, 2000). Section § 652(k) is not a bill of attainder.
The Court finds Petitioner’s numerous other facial constitutional challenges to 42 U.S.C.
§ 652(k) are without merit and do not require discussion.
3. Petitioner’s Allegation that WCCS Violated his Due Process Rights
Petitioner also claims that WCCS’s March 2007 certification to DHHS that Petitioner
owed past due child support violated his rights to due process because there was “no notice, no
hearing, and no evidence.” 28 U.S.C. § 2241 Petition at 2. Petitioner alleges WCCS willfully
sent pre-certification notice to Petitioner at an address in Pan Chaio, Taiwan, where he no longer
resided. Id. Attach. 2 at 22. However, under 45 C.F.R. § 303.35(a), states must provide
individuals with an administrative complaint procedure to review improper certifications.
Petitioner does not allege that WCCS has failed to provide an administrative complaint
procedure. In fact, Petitioner does not dispute that he owes more than ,500 in past due child
support under the terms of the 1997 Oklahoma order. Instead, he alleges he has contacted
WCCS but it is unwilling to remove the certification until he pays his child support obligations.
Id. Attach. 2 at 15, 20. Although Petitioner is dissatisfied with this result, the availability of a
post-certification administrative complaint procedure provides Petitioner with adequate
procedural due process.
4. Petitioner’s Argument that this Court Should Modify his Child Support
Petitioner does not dispute that he owes past due child support under the terms of the
1997 Oklahoma court order. Instead, Petitioner asks this Court to declare the 1997 Oklahoma
child support order invalid because the order allegedly violated Oklahoma law and because
Petitioner was incompetent to represent himself pro se in the Oklahoma proceedings. 28 U.S.C.
§ 2241 Petition Attach. 2 at 13, 20-21. Petitioner also requests that this Court modify his child
support arrearages and payments to reflect his limited income. Id. Attach. 2 at 43. However,
federal “[d]istrict courts may not review state court decisions, even if those challenges allege that
the state court’s action was unconstitutional, because federal jurisdiction to review most state
court judgments is vested exclusively in the United States Supreme Court.” Ballinger v. Culotta,
322 F.3d 546, 548 (8th Cir. 2003) (quotation marks and citations omitted). “This jurisdictional
bar extends not only to straightforward appeals but also to more indirect attempts by federal
plaintiffs to undermine state court decisions.” Id. (quotation marks and citation omitted).
Therefore, Petitioner cannot use federal habeas review to undermine the 1997 Oklahoma child
support order. Petitioner must file an action in an appropriate state court to obtain review of his
child support obligations and other issues regarding the welfare of his son. Petitioner is not
entitled to relief on any of the claims asserted in his 28 U.S.C. § 2241 and § 2254 Petitions.
C. Petitioner’s Ex Parte Motion for Writ of Mandamus
In his Ex Parte Motion for Writ of Mandamus, Petitioner complains that a State
Department regulation issued in November 2007 stated that “United States in a geographical
sense means the Continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin
Islands of the United States.” Passports, 72 Fed. Reg. 64930, 64932 (Nov. 19, 2007). Petitioner
complains that this definition excludes United States territories and possessions. However, the
regulation was corrected on January 30, 2008, so that the definition now includes “all other
United States territories and possessions.” Revisions to Passport Regulations; Correction, 73
Fed. Reg. 5435 (Jan. 30, 2008); 22 C.F.R. 51.1. Therefore, although the basis for Petitioner’s
mandamus motion was dubious, any issues raised therein are moot.
D. Petitioner’s Remaining Motions
In his Motion for Temporary Restraining Order and his Motions to Stay, Petitioner
requests a temporary injunction that would cause the WCCS Respondents, DHHS, and the State
Department to take action to remove the § 652(k) certification. Because this Court has denied
Petitioner’s 28 U.S.C. § 2241 and § 2254 Petitions, his Motion for Temporary Restraining Order
and his Motions to Stay are denied.
In his Motions to Supplement Habeas Petition, Petitioner asserts various constitutional
claims challenging the fact that citizens of the District of Columbia cannot elect voting members
of Congress, and challenging alleged torture of detainees at Guantanamo Bay. These motions
are denied because Petitioner lacks standing to assert these claims.
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
(1) Petitioner Paul Maas Risenhoover’s (“Petitioner”) Objections [Civ. No. 07-4509
Docket No. 6] to Magistrate Judge Arthur J. Boylan’s Report and
Recommendation [Civ. No. 07-4509 Docket No. 5] are OVERRULED;
(2) The Report and Recommendation in Civil Number 07-4509 is ADOPTED IN
(3) Petitioner’s 28 U.S.C. § 2254 Petition [Civ. No. 07-4509 Docket No. 1] is
DENIED WITH PREJUDICE;
(4) Petitioner’s Motion for Temporary Restraining Order [Civ. No. 07-4509 Docket
No. 2] is DENIED WITH PREJUDICE;
(5) Petitioner’s Motions to Stay [Civ. No. 07-4509 Docket Nos. 7 and 8] are
DENIED WITH PREJUDICE;
(6) Petitioner’s Motions to Supplement Habeas Petition [Civ. No. 07-4509 Docket
Nos. 12 and 13] are DENIED WITH PREJUDICE;
(7) Petitioner’s 28 U.S.C. § 2241 Petition [Civ. No. 07-4518 Docket No. 1] is
DENIED WITH PREJUDICE; and
(8) Petitioner’s Ex Parte Motion for Writ of Mandamus [Civ. No. 07-4518 Docket
No. 42] is DENIED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: February 12, 2008.
| By visiting this page or clicking the
"submit" button above, you agree
that you have read and accept this "disclaimer".
Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights
Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.