Case 4:16-cv-00654-PJH Document 52 Filed 05/18/16 Page 1 of 21

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BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
BRIAN J. STRETCH
United States Attorney
ANTHONY J. COPPOLINO
Deputy Director, Federal Programs Branch
KATHRYN L. WYER (Utah Bar #9846)
U.S. Department of Justice, Civil Division
20 Massachusetts Avenue, N.W.
Washington, DC 20530
Tel. (202) 616-8475/Fax (202) 616-8470
kathryn.wyer@usdoj.gov
Attorneys for Defendants

UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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JOHN DOE #1 et al.,

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Plaintiff,
v.
JOHN KERRY, in his official capacity as
Secretary of State of the United States et al.,

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CASE NO. 4:16-CV-654-PJH

Defendants.

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Defendants Reply in Support of Defendants Motion to Dismiss

Case No. 4:16-CV-654-PJH

DEFENDANTS REPLY IN SUPPORT

OF DEFENDANTS MOTION TO
DISMISS
Hearing Date:
Hearing Time:
Courtroom:
Judge:

July 27, 2016

9:00 am
Courtroom 3
Hon. Phyllis J. Hamilton

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TABLE OF CONTENTS

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INTRODUCTION ...........................................................................................................................1

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ARGUMENT....................................................................................................................... 2

I.

PLAINTIFFS FAIL TO ESTABLISH THEIR STANDING........................ 2

II.

PLAINTIFFS FAIL TO ESTABLISH THAT THEIR CHALLENGES

TO THE IMLS PASSPORT IDENTIFIER PROVISION ARE RIPE ....... 6

III.

PLAINTIFFS COMPELLED SPEECH CLAIM SHOULD BE DISMISSED ..... 7

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IV.

PLAINTIFFS SUBSTANTIVE DUE PROCESS AND EQUAL

PROTECTION CLAIMS SHOULD BE DISMISSED .......................................... 9

V.

PLAINTIFFS PROCEDURAL DUE PROCESS CLAIMS SHOULD

BE DISMISSED ................................................................................................... 11

VI.

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PLAINTIFFS FAIL TO SUPPORT THEIR EX POST FACTO CLAIM

AND THUS EFFECTIVELY CONCEDE THAT IT SHOULD BE
DISMISSED ........................................................................................................ 15

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CONCLUSION ................................................................................................................. 15

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TABLE OF AUTHORITIES

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CASES

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Am. Meat Inst. v. U.S. Dept of Agric., 760 F.3d 18 (D.C. Cir. 2014) ............................................8

Aptheker v. Secy of State, 378 U.S. 500 (1964) .............................................................................9

Babbitt v. United Farm Workers Natl Union, 442 U.S. 289 (1979) ..............................................6

Bantam Books v. Sullivan, 372 U.S. 58 (1963) ...............................................................................5

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ..................................................................12

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Bennett v. Spear, 520 U.S. 154, 169 (1997) ...................................................................................5

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Bova v. City of Medford, 564 F.3d 1093 (9th Cir. 2009) ................................................................7

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Clapper v. Amnesty Intl USA, 133 S. Ct. 1138 (2013) ...................................................................4

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Conn. Dept of Pub. Safety v. Doe, 538 U.S. 1 (2003) ............................................................13, 14

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Cressman v. Thompson, 798 F.3d 938 (10th Cir. 2015) ..................................................................8

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Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59 (1978) .....................................3

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FCC. v. Beach Commcns, Inc., 508 U.S. 307 (1993) ............................................................. 10-11

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Franklin v. Massachusetts, 505 U.S. 788 (1992) ............................................................................6

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Gralike v. Cooke, 191 F.3d 911 (8th Cir. 1999) ..............................................................................8

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In re TFTLCD (Flat Panel) Antitrust Litig., 586 F. Supp. 2d 1109, 1131 (N.D. Cal. 2008) .....15

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Latif v. Holder, 28 F. Supp. 3d 1134 (D. Or. 2014) ................................................................ 11-12

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LSO, Ltd v. Stroh, 205 F.3d 1146 (9th Cir. 2000) ...........................................................................5

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Natl Assn of Mfrs. v. SEC, 800 F.3d 518 (D.C. Cir. 2015) ..........................................................8

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Orozco v. Cty. of Monterey, 941 F. Supp. 930 (N.D. Cal. 1996) ..................................................13

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Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009) ........................................................7
Plyler v. Doe, 457 U.S. 202 (1982) ...............................................................................................10

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Pub. Serv. Commn v. Wycoff Co., 344 U.S. 237 (1952) ................................................................6

Riley v. Natl Fedn for the Blind, 487 U.S. 781 (1988) .................................................................8

R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205 (D.C. Cir. 2012) ............................................8

Smith v. Doe, 538 U.S. 84 (2003) .............................................................................. 5, 9-10, 12, 13

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Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001) ...............................................11

State of Ariz. v. Atchison, T.&S.F.R. Co., 656 F.2d 398, 402 (9th Cir. 1981) ................................6

Strome v. DBMK Enterprises, Inc.,

No. C 14-2398 SI, 2014 WL 4437777 (N.D. Cal. Sept. 9, 2014) .................................4, 13

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Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014) .............................................................................8

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Thomas v. Anchorage Equal Rights Commn, 220 F.3d 1134 (9th Cir. 1999) ...............................7

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United States v. Juvenile Male, 670 F.3d 999 (9th Cir. 2012) ......................................................10

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United States v. Pickard, 100 F. Supp. 3d 981 (E.D. Cal. 2015) ..................................................11

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United States v. Wilde, 74 F. Supp. 3d 1092 (N.D. Cal. 2014) .....................................................10

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United States v. Windsor, 133 S. Ct. 2675 (2013) .........................................................................10

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USDA v. Moreno, 413 U.S. 528 (1973) ........................................................................................10

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Walker v. Texas Div., 135 S. Ct. 2239 (2015) .................................................................................8

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Warshak v. United States, 532 F.3d 521 (6th Cir. 2008) ................................................................7

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Wooley v. Maynard, 430 U.S. 705 (1977) .......................................................................................8

Wright v. Riveland, 219 F.3d 905 (9th Cir. 2000) ........................................................................12

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STATUTES

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International Megans Law to Prevent Child Exploitation and Other Sexual Crimes Through
Advanced Notification of Traveling Sex Offenders (IML), Pub. L. No. 114-119,
130 Stat. 15 (2016)..................................................................................................... passim

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18 U.S.C. 2250 ..............................................................................................................................4

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19 U.S.C. 1628 .............................................................................................................................3

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42 U.S.C. 16914 ............................................................................................................................4

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INTRODUCTION

Plaintiffs Opposition to Defendants Motion to Dismiss fails to undermine this Courts

prior holding (in denying a preliminary injunction) that Plaintiffs lack standing to challenge the

notification provisions of the International Megans Law to Prevent Child Exploitation and Other

Sexual Crimes Through Advanced Notification of Traveling Sex Offenders (IML), Pub. L. No.

114-119, 130 Stat. 15 (2016), and that Plaintiffs challenges to the IMLs passport identifier

provision are unripe. The Court correctly recognized that because the only notifications that

Plaintiffs Amended Complaint seeks to enjoin are those provided pursuant to the IML,

notifications pursuant to already-existing authorities are not at issue, and thus a ruling by the

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Court would not redress any injuries allegedly resulting from such notifications. Moreover,

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Plaintiffs alleged injuries remain speculative and depend on potential actions of independent

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foreign sovereigns as well as unidentified third parties. The speculative nature of Plaintiffs

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asserted injuries also reinforces the conclusion that their challenges to the IMLs passport

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identifier provision are unripe. Ultimately, the IMLs notification and passport identifier

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provisions both are a form of information sharing between U.S. government authorities and

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parallel authorities in other countries, where no recommendation is transmitted, and much of the

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information at issue is already publicly available. As such, they do not present cognizable

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injuries sufficient to satisfy the case or controversy requirements of Article III.

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Plaintiffs claims may also be dismissed for failure to state a claim upon which relief can

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be granted. First, an identifier in a government-issued passport, conveying the fact of a past

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conviction for a sex offense against a minor, is government speech that does not implicate the

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First Amendment. Plaintiffs citation of inapposite casescompelled speech cases outside the

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government speech context, and a single Supreme Court case addressing a states attempt to use

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license plates on private vehicles to broadcast the states ideological slogancannot save

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Plaintiffs First Amendment claim from dismissal.

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Second, while Plaintiffs concede rational basis review applies to their substantive due

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process and equal protection claims, they incorrectly assert that the IML is purely arbitrary in

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focusing on those with prior sex offense convictions. However, under the same rationale that

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courts have repeatedly applied to other sex offender registration and notification schemes, it is

plainly rational to discern a relationship between the past commission of sexual offenses and the

possible future commission of such offenses by the same persons. It is also rational to inform

foreign government authorities about individuals criminal histories to facilitate reciprocal

information sharing about persons seeking to enter the United States. Plaintiffs invitation to

apply a more searching form of rational basis review here should be rejected. A law that is

based on prior sex offense convictions is in no way similar to purely arbitrary classifications,

based on inherent traits or preferred living arrangements, that have been accorded heightened

scrutiny. Plaintiffs substantive due process and equal protection claims should be dismissed.

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Third, Plaintiffs attempt to avoid dismissal of their procedural due process challenges is

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equally unavailing. Plaintiffs identify no liberty interest in the actual communications between

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government authorities that the IMLs notification and passport identifier provisions describe.

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Rather, Plaintiffs asserted interests focus on how they might be affected by actions that, they

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speculate, foreign authorities might take upon learning of their prior convictions. This case is

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therefore quite different from cases, cited by Plaintiffs, addressing revocation of a passport or

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placement on a No Fly list. Plaintiffs also fail to make plausible their allegations that the factual

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information provided through IML notifications and passport identifiers is inaccurate or

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stigmatizing, thus defeating any claim under a stigma plus theory. In addition, Plaintiffs fail to

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support their entitlement to any additional process.

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Finally, Plaintiffs effectively concede that their ex post facto claim is without merit. In
sum, Plaintiffs claims are subject to dismissal in their entirety.

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ARGUMENT
I.

PLAINTIFFS FAIL TO ESTABLISH THEIR STANDING

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As explained in Defendants opening brief, Plaintiffs have not alleged a certainly

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impending injury fairly traceable to the IML provisions that they challenge, or redressable by the

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relief sought in their Amended Complaint. In denying Plaintiffs Motion for Preliminary

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Injunction, the Court held that because the Department of Homeland Security (DHS) and the

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U.S. Marshals Service (USMS) already operate international notification programs, enjoining

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the IMLs notification provisions would provide no redress. Order of Apr. 13, 2016, at 7. In

opposing Defendants Motion to Dismiss for lack of standing, Plaintiffs fail to address, or even

acknowledge, the Courts prior ruling. Instead, Plaintiffs make various arguments in support of

standing, but none of these arguments cast doubt on the Courts prior conclusions.

Plaintiffs first attempt to differentiate DHSs preexisting international notification

program from the Angel Watch Center notifications described in IML 4 by suggesting that a

statute authorizing the preexisting program, 19 U.S.C. 1628, requires DHS to obtain assurance

from foreign authorities that information will be kept confidential. Pl. Opp. at 5. However,

Plaintiffs suggestion that 1628 prevents DHS from providing notifications, absent the IML,

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amounts to speculation contradicted by DHSs declaration, which unequivocally states that DHS

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did in fact provide such notifications before the IMLs enactment. See Lechleitner Decl. 5, 7,

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13, 14. Plaintiffs also ignore USMSs preexisting program, which is not constrained in any way

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by 1628 and could continue to provide international notifications on sex offenders absent the

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IML. Plaintiffs thus fail to show that enjoining the IML would redress their alleged injuries.

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Plaintiffs also suggest there is a rule that allows a plaintiff to challenge one law even if

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the same alleged injury might be inflicted by a different law. Pl. Opp. at 7. However, the case

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Plaintiffs cite as establishing this rule, Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438

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U.S. 59 (1978), contains no such holding. Rather, that case held that individuals had standing to

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challenge a federal law authorizing private companies to construct and operate nuclear power

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plants because, absent the liability cap in the challenged law, the private company defendant was

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unlikely to construct plants in the plaintiffs vicinity. Id. at 77. The Court noted that its decision

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was unaffected by the mere speculative and hypothetical possibilit[y] that the government

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might operate public power plants if the private company did not. Id. The situation here is very

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different because the already-existing international notification programs operated by DHS and

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USMS are not speculative or hypothetical; rather, they are essentially the same programs that the

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IMLs notification provisions describe. Moreover, Plaintiffs contention in their opposition brief

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that they challenge the constitutionality of any notification scheme no matter what the

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authority, Pl. Opp. at 8, is contradicted by their Amended Complaint, which seeks to enjoin

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only the IMLs provisions, not preexisting programs. See Am. Compl. at 28 (Prayer for Relief);

see also Strome v. DBMK Enterprises, Inc., No. C 14-2398 SI, 2014 WL 4437777, at *4 (N.D.

Cal. Sept. 9, 2014) ([i]t is axiomatic that the complaint may not be amended by briefs in

opposition to a motion to dismiss (internal quotation omitted)). 1 While Plaintiffs argue that

dismissal for lack of redressability would be inappropriate at the pleading stage, they have failed

to identify material facts in dispute that could affect the Courts previous decision on this point.

Accordingly, Plaintiffs challenge to the IMLs notification provisions should be dismissed for

the reasons that the Court has already explained. 2

Beyond the lack of redressability, Plaintiffs have failed to identify a certainly impending

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injury with respect to either the notification or the passport identifier provisions. Def. Mem. at

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12-14. Plaintiffs first rely on an incorrect standard, suggesting that their burden is to establish a

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credible threat of enforcement. Pl. Opp. at 6. That standard has no application here, where the

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IML notification and passport identifier provisions do not require Plaintiffs to take any action or

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impose potential sanctions on them for failing to act. Rather, these provisions are directed to

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federal agencies, including DHS, USMS, and the State Department, which are charged with their

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implementation. 3 The proper standing analysis in this case therefore requires Plaintiffs to show a

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certainly impending injury, as set forth in Clapper v. Amnesty Intl USA, 133 S. Ct. 1138, 1147

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(2013). Plaintiffs fail to do so here, not only because they fail to identify specific international

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Plaintiffs characterization of the preexisting international notification programs as secret is

without foundation. Indeed, Defendants have previously cited ICE News Releases posted on its
website describing the Angel Watch program. See Def. PI Opp., ECF No. 30, at 8 n.3.
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To be sure, implementation of the IML could lead Congress to allocate additional resources for
the DHS and USMS notification programs and could increase the volume of transmitted
notifications. However, such a possibility remains hypothetical at this stage. Moreover, the scope
of the agencies authority would not change, so Plaintiffs cannot show that enjoining the IML
would likely prevent any notifications concerning them that would otherwise have been
conveyed. There remains no likelihood that their alleged injuries would be redressed.
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The only IML provision directed to registered sex offenders is 6, which amends 42 U.S.C.
16914 to require reporting intended international travel in conformity with any time and
manner requirements prescribed by the Attorney General, IML 6(a), and amends 18 U.S.C.
2250 to explicitly provide criminal liability for violations of this requirement, IML 6(b)(2).
However, while Plaintiffs purport to include 6 as part of what they call the IMLs notification
provision, see Am. Compl. 46, their claims do not directly challenge the constitutionality of
this requirement, nor do they allege a credible threat of enforcement under this provision.

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travel plans, but also because their asserted injuries necessarily rely on pure speculation

regarding how another country might respond to an Angel Watch Center or USMS notification.

Authority cited by Plaintiffs to suggest that government communications alone may

qualify as cognizable injuries is inapposite. Unlike here, the government authorities in those

cases were not simply sharing information with parallel authorities in other countries; rather,

their communications were indirect threats attempting to induce a third party to take a particular

action. For example, in Bantam Books v. Sullivan, 372 U.S. 58 (1963), a state morality

commission provided notices to book distributors to inform them of its conclusion that certain

books were objectionable, and to remind[] them that the commission also made prosecution

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recommendations to the Attorney General and provided lists of objectionable publications to

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local police departments. Id. at 61-62. In LSO, Ltd v. Stroh, 205 F.3d 1146 (9th Cir. 2000), the

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plaintiff alleged that California Alcoholic Beverage Control officials threatened businesses with

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the loss of their liquor licenses if they allowed the plaintiff to display erotic art on their premises.

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Id. at 1150. Here, in contrast, nothing in the IML authorizes similar threats, nor are the

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notifications or passport identifier accompanied by any demand or recommendation that a

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foreign country take specific action in response to the provided information.

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Plaintiffs also cite Bennett v. Spear, 520 U.S. 154, 169 (1997), for the proposition that

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where federal action had a determinative or coercive effect upon the action of someone else,

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the federal action need not be the last step in the chain of causation to afford a plaintiff standing.

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Pl. Opp. at 10. However, Bennett recognized that where the injury complained of is the result of

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the independent action of some third party not before the court, the causation prong of standing

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is not satisfied. Bennett, 520 U.S. at 169 (internal quotation and alteration omitted). Here, the

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recipients of the information provided through IML notifications or the passport identifier are

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foreign sovereigns, who may proceed as they deem appropriate. There is no basis to assume that

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the IML notifications or passport identifier would have a determinative or coercive effect upon

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foreign authorities, particularly where no recommendation or request is conveyed, and

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information about an offenders conviction or registration status is already public. Smith v. Doe,

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538 U.S. 84, 98, 101 (2003) (alleged consequences flow not from the Acts registration and

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dissemination provisions, but from the fact of conviction, already a matter of public record). 4

As Defendants have previously explained, the challenged provisions fall within the category of

Executive Branch communications with foreign governments. Plaintiffs cite no authority for the

notion that such communications qualify as a cognizable injury for standing purposes.

II.

Plaintiffs also fail to acknowledge the Courts prior holding that Plaintiffs challenge to

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PLAINTIFFS FAIL TO ESTABLISH THAT THEIR CHALLENGES TO THE

IMLS PASSPORT IDENTIFIER PROVISION ARE RIPE

the IMLs passport identifier provision was unripe. Order of Apr. 13, 2016, at 10. Instead, they
argue that, because they assert only a facial challenge to the IMLs passport identifier provision,
the fact that it has not yet been implemented is irrelevant to ripeness. Pl. Opp. at 13-15. That
argument only accentuates the lack of ripeness since a court should no more facially invalidate
(in all applications) a law that has yet to be implemented than it should rule on any as-applied
claim. And while a time delay alone may not always be dispositive of the ripeness question, the
authority cited by Plaintiffs emphasizes that a disagreement must not be nebulous or contingent
but must have taken on fixed and final shape so that a court can see what legal issues it is
deciding, what effect its decision will have on the adversaries, and some useful purpose to be
achieved in deciding them. State of Ariz. v. Atchison, T.&S.F.R. Co., 656 F.2d 398, 402 (9th
Cir. 1981) (quoting Pub. Serv. Commn v. Wycoff Co., 344 U.S. 237, 243-44 (1952)). A plaintiff
must therefore establish a realistic danger of sustaining a direct injury as a result of the statutes
operation, Babbitt v. United Farm Workers Natl Union, 442 U.S. 289, 298 (1979), and that the
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Plaintiffs also cite Franklin v. Massachusetts, 505 U.S. 788 (1992), as holding that a plaintiff
may have standing even where the alleged injury results in part from independent actions of third
parties. See Pl. Opp. at 11. However, Franklin did not so hold; rather, it held that the fact that the
President was ultimately responsible for sending apportionment determinations to Congress did
not defeat redressability because the President and other executive officials would likely abide
by judicial determinations even if they were not directly bound. Franklin, 505 U.S. at 803.
None of the other cases Plaintiffs cite held that there was standing where an alleged injury was
the result of independent actions of third parties. Moreover, one Plaintiffs assertion that Taiwan
decided to deport him in June 2013before the IMLs enactmentbecause of information
from the United States government does not suggest that the Taiwanese government was
induced by a DHS or USMS notification to take a particular action. As a sovereign entity,
Taiwan makes its own decisions about who it will admit or exclude, and the specific source of
the information it may have obtained about this Plaintiff is unknown.

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alleged injury is not too imaginary or speculative, Thomas v. Anchorage Equal Rights

Commn, 220 F.3d 1134, 1139 (9th Cir. 1999). Here, Plaintiffs rely on speculation regarding the

impact that a passport identifier might have. Among other things, Plaintiffs hypothesize that

individuals carrying such passports will be at risk of harm from unknown third parties. Such

speculation cannot be tested when the identifier provision has not yet even been implemented.

Moreover, the fact that Plaintiffs assert a facial challenge only compounds the speculative nature

of their claims because it requires an assumption that everyone carrying passports with

identifiers will face the same risk, regardless of specific travel plans or other individual details.

Cf. Warshak v. United States, 532 F.3d 521, 528-29 (6th Cir. 2008) (As-applied challenges

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the basic building blocks of constitutional adjudicationremain the preferred route). In this

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sense, ripeness and standing are intertwined because if the contingent events [that Plaintiffs

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assume] do not occur, [Plaintiffs] likely will not have suffered an injury that is concrete and

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particularized enough to establish the first element of standing. Bova v. City of Medford, 564

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F.3d 1093, 1096 (9th Cir. 2009). Accordingly, Plaintiffs challenges to the passport identifier

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provision should be dismissed as unripe.

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III.

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PLAINTIFFS COMPELLED SPEECH CLAIM SHOULD BE DISMISSED

Even if Plaintiffs claims are not dismissed for lack of subject matter jurisdiction, they

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should be dismissed for failure to state a claim upon which relief can be granted. First, as

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explained in Defendants opening brief, the U.S. passport identifiers required by the IML are

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government speech and therefore do not implicate individual First Amendment interests. Def.

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Mem. at 15-18. The Free Speech Clause restricts government regulation of private speech; it

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does not regulate government speech. Pleasant Grove City, Utah v. Summum, 555 U.S. 460,

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467 (2009). Here, to the extent a passport communicates information, it does so on behalf of the

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issuing government, not the passport holder. Indeed, if individuals were allowed to communicate

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their own messages in their passports, or to control the information that passports contain, these

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documents would cease to function as reliable government-issued identification.

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Plaintiffs argue that compelled speech claims frequently involve[] government speech

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and that all of the cases which address this issue also involved compelled government speech.

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Pl. Opp. at 16, 17. However, Plaintiffs cite no support for this assertion other than the two

casesWooley v. Maynard, 430 U.S. 705 (1977) and Gralike v. Cook, 191 F.3d 911 (8th Cir.

1999)that Defendants have already addressed, and that found under the specific circumstances

of those cases that the First Amendment was implicated because the governments point of view

would be attributed to or deemed endorsed by a private party. See Walker v. Tex. Div., 135 S. Ct.

2239, 2253 (2015) (under Wooley, state could not require private vehicle owners to convey the

States ideological message on license plate); Cressman v. Thompson, 798 F.3d 938, 950 (10th

Cir. 2015) (under Wooley, the affixation of objectionable speech on a standard license plate

implicates compelled-speech concerns if it forces a vehicle owner to be an instrument for

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fostering public adherence to a[ ] ... point of view he finds unacceptable (quoting Wooley, 430

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U.S. at 715)). Because no potential attribution or endorsement is likely here, those cases are

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inapposite. As already explained, factual information in a U.S. passport is in no sense equivalent

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to an ideological message on a license plate.

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Plaintiffs otherwise rely on cases where the government required private parties to

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convey a message in their own private speech. For example, Riley v. Natl Fedn for the Blind,

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487 U.S. 781 (1988), involved a requirement that individual fundraisers tell potential donors

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what percentage of their raised funds were actually given to charities. Id. at 786. Another case

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cited by Plaintiffs, Natl Assn of Mfrs. v. SEC, 800 F.3d 518 (D.C. Cir. 2015), involved a

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requirement that manufacturers using minerals originating in the Democratic Republic of the

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Congo post a disclosure of that fact on their own websites. See id. at 522. Similarly, R.J.

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Reynolds Tobacco Co. v. FDA, 696 F.3d 1205 (D.C. Cir. 2012), involved a requirement that

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tobacco companies include graphic warnings on their own product labels. See id. at 1211-12

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(also recognizing that the required warnings went beyond . . . purely factual and accurate

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disclosures). 5 And Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014), involved a requirement that,

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before performing an abortion, a doctor display a sonogram and, in his or her own voice,

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describe the fetus to the patient. Id. at 245. None of these cases have any application because the

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R.J. Reynolds was overruled by Am. Meat Inst. v. U.S. Dept of Agric., 760 F.3d 18, 22-23
(D.C. Cir. 2014), to the extent it suggested that only an interest in correcting deception could
justify a commercial labeling requirement.

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IML does not require anyone else to communicate the Governments message; again, factual

information in a U.S. passport is government speech, and the First Amendment is not implicated.

Plaintiffs First Amendment challenge fails as a matter of law and should be dismissed.

IV.

5
6

PLAINTIFFS SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION

CLAIMS SHOULD BE DISMISSED
Plaintiffs also fail to state a claim with respect to their substantive due process and equal

protection claims because they have not established a liberty interest in preventing U.S.

government authorities from transmitting accurate information about individuals criminal

histories to parallel authorities in countries where those individuals plan to travel. Moreover,

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even assuming such a liberty interest exists, the IMLs notification and passport identifier

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provisions are rationally related to governmental interests in preventing U.S. persons from

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committing acts of sexual abuse or exploitation in other countries and in facilitating cooperation

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with and reciprocal notifications from other countries. Def. Mem. at 19-22.

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While Plaintiffs concede that rational basis review applies to their substantive due

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process and equal protection challenges, they now assert that the liberty interest at issue for their

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due process claim is a fundamental interest in the right to travel internationally, Pl. Opp. at

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20a purported interest that is not mentioned in Count 2 of the Amended Complaint and that

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ignores the Courts prior recognition that there is no fundamental right to international travel.

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Order of Apr. 13, 2016, at 6. In any event, Plaintiffs have not established that the transmission of

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factual information between governments, as contemplated in the IML, implicates a liberty

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interest in international travel. Certainly, the IMLs notification and passport identifier

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provisions are far removed from the law at issue in Aptheker v. Secy of State, 378 U.S. 500

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(1964), which entirely prohibited Communist organization members from obtaining or using

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U.S. passports. See id. at 501-02; see id. at 507 (recognizing denial of passport imposed a severe

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restriction on foreign travel). The IML by its own terms does not prevent individuals from

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obtaining a passport or from traveling internationally. Moreover, following the Supreme Courts

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rationale in similar contexts, any burden on international travel here ultimately derives from an

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individuals criminal history and is not properly attributed to the IML. Cf. Smith, 538 U.S. at 98,

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101. There is no cognizable liberty interest in preventing the government from conveying

accurate factual information that is already a matter of public record.

Beyond the question of whether any liberty interest is implicated, Plaintiffs substantive

due process and equal protection claims otherwise fail as a matter of law under rational basis

review. Plaintiffs appear to concede that they have no cognizable claim under normal rational

basis review but assert that a more searching form of review applies here because convicted

sex offenders are politically unpopular and qualify as a vulnerable minority. Pl. Opp. at 21.

Plaintiffs simply ignore the precedent, cited in Defendants brief, unequivocally reject[ing] the

argument that sex offenders are a suspect or protected class. United States v. Juvenile Male, 670

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F.3d 999, 1009 (9th Cir. 2012). Moreover, as recognized in United States v. Wilde, 74 F. Supp.

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3d 1092 (N.D. Cal. 2014), the cases cited by Plaintiffs that have applied rational basis with a

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bite involved legislative classifications apparently based solely on animus or prejudice. Id. at

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1097; see United States v. Windsor, 133 S. Ct. 2675, 2695 (2013) (same-sex couples lawfully

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married under state law); USDA v. Moreno, 413 U.S. 528, 529 (1973) (households with unrelated

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members); Plyler v. Doe, 457 U.S. 202, 220 (1982) (undocumented school-age children).

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Plaintiffs cite no authority for the notion that legislative classifications based on prior criminal

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convictions could properly be equated with the laws at issue in Windsor, Moreno, or Plyler. 6

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There is therefore no basis on which to apply a heightened form of rational basis review here.

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Under traditional rational basis review, Plaintiffs claims necessarily fail. Plaintiffs argue

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that their claims should not be dismissed because they plan to present evidence showing that the

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IMLs provisions are irrational. Pl. Opp. at 22. However, rational basis review does not properly

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involve the Court in weighing conflicting expert opinions and engaging in judicial fact-finding

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regarding whether the IMLs provisions do or do not serve their intended purposes. Heller v.

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Doe, 509 U.S. 312, 320 (1993) (government has no obligation to produce evidence to sustain

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the rationality of a statutory classification); FCC v. Beach Commcns, Inc., 508 U.S. 307, 313-

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The Supreme Court in Plyler recognized that undocumented children, unlike their parents,
could not control their legal status. Plyler, 457 U.S. at 220. Even if Plaintiffs, as convicted sex
offenders, are subject to a certain degree of unwarranted prejudice, they simply cannot be
equated with those who are categorized based on attributes unrelated to criminal history.

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14 (1993) (legislative choice is not subject to courtroom factfinding); United States v. Pickard,

100 F. Supp. 3d 981, 1005 (E.D. Cal. 2015) (under rational basis review, a law may be

overinclusive, underinclusive, illogical, and unscientific and yet pass constitutional muster).

Rather, where a rational basis for the challenged provision can be discerned by the Court, as is

the case here, no claim is stated at the pleading stage and no basis for proceeding to evidentiary

inquiries exists. The IMLs provisions are clearly rationally related to important government

interests, for the reasons already explained in Defendants opening brief. Def. Mem. at 21-22.

While Plaintiffs argue that the IML is not a sex offender registration law, courts considering such

provisions have repeatedly recognized legislative judgments regarding risks posed by sex

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offenders as rational, and that reasoning clearly applies here. In addition, a scheme that provides

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for sharing factual information with foreign government authorities regarding an individuals

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criminal history, in an effort to facilitate cooperation and reciprocal information sharing by other

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governments, cannot be deemed irrational. Plaintiffs substantive due process and equal

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protection claims should therefore be dismissed.

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V.

16

PLAINTIFFS PROCEDURAL DUE PROCESS CLAIMS SHOULD BE

DISMISSED

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Plaintiffs also fail to state plausible claims that the IMLs notification and passport

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identifier provisions violate their rights to procedural due process. Plaintiffs rest their procedural

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due process claims on the notion that these IML provisions operat[e] as an international travel

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blacklist. Am. Compl. 64, 69, 73. In fact, however, the IML simply provides for government

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communications to foreign authoritieseither through notifications or a passport identifierof

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factual information about the criminal history of U.S. persons traveling to those countries. 7
The situation here is markedly distinct from the No-Fly list addressed by the court in

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Latif v. Holder, 28 F. Supp. 3d 1134 (D. Or. 2014), cited by Plaintiffs, where the district court

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observed that the plaintiffs placement on the No-Fly List operate[d] as a complete and

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Contrary to Plaintiffs contention, Pl. Opp. at 24, the Court need not accept as true every factual
assertion in Plaintiffs Amended Complaint, even when an assertion is contradicted by statutory
text or is wholly speculative. Indeed, it is well established that a court is not required to accept
as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable
inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

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indefinite ban on boarding commercial flights. Id. at 1148. Unlike in that case, the IML does not

restrict international air travel or impose any travel restraint on Plaintiffs. Rather, Plaintiffs rely

on unsupported speculation that every country receiving a notification about an individual or

reviewing an identifier in the individuals passport will bar that individual from entry. However,

nothing in the IML requires such a result or suggests that it is intended. Plaintiffs further

assertion that, even if the IML does not ban international travel, it imposes material

impediments to such travel, is also entirely unsupported. Again, as the Supreme Court has

previously observed, the fact of a sex offenders conviction is already a matter of public record.

Smith, 538 U.S. at 98, 101. Moreover, registered sex offenders are already commonly identified

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as such on state registry public websites as well as on the National Sex Offender Public Website.

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The notion that the IMLs notification and passport identifier provisionswhich, unlike such

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websites, do not involve widespread dissemination of a registrants status but merely share

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information with foreign authoritiesare somehow uniquely burdensome, when the Supreme

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Court has rejected nearly identical arguments with respect to registration and notification laws, is

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unsupported. Because Plaintiffs assertions mischaracterize the plain terms of the statute they

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seek to challenge, they do not amount to plausible allegations that the IML deprives them of

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liberty interests in international travel, employment, or family association. See Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (allegations must raise a right to relief above the

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speculative level). Absent such a deprivation, Plaintiffs cannot state a procedural due process

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claim. See Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000).

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Plaintiffs attempt to overcome this deficiency by asserting that two of them were

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previously denied entry into foreign countries due to Defendants notifications. Pl. Opp. at 24.

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However, Plaintiffs Amended Complaint contains such an allegation only with respect to Doe

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#6. Am. Compl. 18. Moreover, the Amended Complaint also alleges that other Plaintiffs

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routinely travel to other countries, apparently without incident, despite the fact that pre-

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existing notification programs have been in effect for over five years. Thus, the notion that every

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notification results in denial of entry to the notified country is belied by the Amended Complaint

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itself, remains pure speculation, and cannot save Plaintiffs claims from dismissal.

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Plaintiffs also fail to show that a stigma plus procedural due process analysis could

properly apply to their IML challenge. Such a showing requires plausible allegations that the

IML involves publication of inaccurate and stigmatizing information. Orozco v. Cty. of

Monterey, 941 F. Supp. 930, 935 (N.D. Cal. 1996). Again, the transmission of factual

information to other governments hardly qualifies as publication. See id. (dissemination to law

enforcement did not qualify as publication). Moreover, the Supreme Court has already held that

any stigma associated with convicted sex offenders is a product of their prior convictions and

cannot be attributed to sex offender registration and notification laws. Smith, 538 U.S. at 98;

Conn. Dept of Pub. Safety v. Doe, 538 U.S. 1, 6-7 (2003). Plaintiffs attempt to distinguish those

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cases by asserting that the IML communicates not only that one is a registered sex offender, but

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also that one has engaged in, or is likely to engage in, child sex tourism or trafficking. Pl. Opp.

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at 24. This allegation is entirely flawed. The Government conveys no such message, pursuant to

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the IML or otherwise. Plaintiffs appear to assume that because the stated purpose of the IML is

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to protect children and others from sexual abuse and exploitation, including sex trafficking and

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sex tourism, IML Preamble, any notification provided pursuant to the IML will somehow

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communicate an assessment that the subject of the notification is likely to engage in sex

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trafficking or tourism. But the IML merely provides that the Angel Watch Center may transmit

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relevant information . . . about a sex offender, IML 4(e)(3)(A), and that USMS may transmit

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notification of international travel of a sex offender and share information relating to traveling

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sex offenders, id. 5(a). Nothing in the IML requires that risk assessments of any kind are to be

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communicated, nor do Plaintiffs allegations establish a plausible as-applied claim regarding the

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alleged transmission of such an assessment.

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Moreover, Plaintiffs attempt to contest the accuracy of the IML notifications is

24

unavailing. Although Plaintiffs Opposition cites admittedly inaccurate notifications in the past

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regarding Plaintiffs Doe #3 and Doe #4, Pl. Opp. at 24; see also id. at 23, no such allegation

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appears in Plaintiffs Amended Complaint, nor have Defendants provided any such admission.

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Plaintiffs assertions are therefore not properly considered in connection with Defendants

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Motion to Dismiss pursuant to Rule 12(b)(6). Strome, 2014 WL 4437777, at *4. In addition,

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Plaintiffs fail to establish that these two alleged notifications were provided through DHSs or

USMSs preexisting notification programs, and no Plaintiff alleges that he was subject to an

inaccurate notification after the IMLs enactment. The IML directs both the Angel Watch Center

and USMS to establish mechanisms to receive complaints from individuals affected by

erroneous notifications. IML 4(e)(7)(A)(i), 5(g)(1)(A). Plaintiffs cannot plausibly allege that

such mechanisms are inadequate when they had not yet been put into effect at the time Plaintiffs

filed their Complaint, and no Plaintiff has attempted to use them to correct an error. 8

Finally, Plaintiffs attempt to bolster their allegations of inaccuracy and stigma, and again

to distinguish this case from Conn. Dept of Pub. Safety, by arguing that the IMLs notifications

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are based not only on criminal history, but also on the application of various factors allegedly

11

designed to predict a likelihood of engaging in international sex trafficking and sex tourism.

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Pl. Opp. at 23; see id. at 25 (arguing that IML is based on a determination that individuals are

13

currently dangerous). Again, this allegation does not appear in Plaintiffs Amended Complaint;

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rather, Plaintiffs rely on the description of the previously-existing notification program operated

15

by ICE HSI that was provided by DHSs declarant, in opposition to Plaintiffs Motion for

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Preliminary Injunction. But even assuming that the Court can properly take into account DHSs

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declaration in connection with Defendants Motion to Dismiss under Rule 12(b)(6), that

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declaration only confirms that, like in Conn. Dept of Pub. Safety, an individuals eligibility for a

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DHS notification rests solely on the nature of his conviction and his current registration status.

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Lechleitner Decl. 9, 12. The IML itself would allow both DHS and USMS to transmit

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notifications for all eligible individuals, and indeed, USMS does not engage in any further

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assessment with respect to its notifications. See Mayo Decl. 6-8. The further review described

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in DHSs declaration operates to rule out notifications that are otherwise authorized, based on an

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assessment by ICE HSI of whether an eligible individuals specific travel plan suggests intended

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Plaintiffs also suggest they dispute the factual accuracy and reasonableness of IML
notifications because, even if they fall within the IMLs definition of sex offenders subject to
notifications, they do not in fact pose any risk of engaging in sex trafficking or sex tourism. Pl.
Opp. at 24. Such an allegation essentially repeats Plaintiffs substantive due process challenge,
and as such should be rejected for the reasons explained above.

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child sex tourism, considering the prevalence of child sex tourism in the destination country and

the purpose of the individuals trip, among other things. However, where notifications are

transmitted, they do not include ICE HSIs analysis; rather, only factual information about the

traveling individual is conveyed. Lechleitner Decl. 11, 13. The assessment described in

DHSs declaration falls within the agencys sound discretion, and no additional process is called

for simply because the agency in practice has chosen not to transmit notifications in every

instance that it was authorized to do so. 9 Plaintiffs otherwise fail to respond to Defendants

arguments that the IML itself provides them with sufficient notice, and, as noted above, do not

meaningfully contest the sufficiency of the IMLs mechanisms to correct errors. Plaintiffs

10

procedural due process claim therefore fails as a matter of law and should be dismissed.

11

VI.

12

PLAINTIFFS FAIL TO SUPPORT THEIR EX POST FACTO CLAIM AND

THUS EFFECTIVELY CONCEDE THAT IT SHOULD BE DISMISSED

13

Finally, as explained in Defendants opening brief, Plaintiffs cannot prevail on their ex

14

post facto claim because there is no basis to conclude that the IMLs provisions are essentially

15

punitive in nature. Def. Mem. at 25. Indeed, the Supreme Courts analysis in Smith forecloses

16

such a conclusion. See Smith, 538 U.S. at 106. Plaintiffs fail to provide a meaningful response to

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Defendants argument on this point and have therefore effectively waived or abandoned this

18

claim. See In re TFTLCD (Flat Panel) Antitrust Litig., 586 F. Supp. 2d 1109, 1131 (N.D. Cal.

19

2008) (dismissing claim where plaintiffs opposition failed to address defendants arguments

20

regarding the claim). Plaintiffs ex post facto claim should thus be dismissed.
CONCLUSION

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For the foregoing reasons, this action should be dismissed with prejudice.

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Plaintiffs contention that the review process described in DHSs declaration is integral to
Plaintiffs pleading, Pl. Opp. at 23, should be accorded no weight, given that Plaintiffs
Amended Complaint makes no allegation with respect to such a process. Indeed, elsewhere in
their brief, Plaintiffs emphasize that their claims only concern the legality of legislation as
opposed to regulations or other agency implementation. See Pl. Opp. at 15. Also, Plaintiffs now
assert that their challenge to the passport identifier provision is purely facial while their
challenge to the notification provisions is also as applied, see Pl. Opp. at 15, 23, but such a
distinction is certainly not apparent in Plaintiffs Amended Complaint, which asserts identical
challenges to the IMLs notification and passport identifier provisions in two out of three
procedural due process claims (Counts 4 and 5) as well as in Counts 2, 6, and 7.

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Defendants Reply in Support of Defendants Motion to Dismiss
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Case 4:16-cv-00654-PJH Document 52 Filed 05/18/16 Page 21 of 21

Dated: May 18, 2016

Respectfully submitted,

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BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
BRIAN J. STRETCH
United States Attorney
ANTHONY J. COPPOLINO
Deputy Director, Federal Programs Branch

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/s/ Kathryn L. Wyer

KATHRYN L. WYER (Utah #9846)
U.S. Department of Justice, Civil Division
20 Massachusetts Avenue, N.W.
Washington, DC 20530
Tel. (202) 616-8475/Fax (202) 616-8470
kathryn.wyer@usdoj.gov
Attorneys for Defendants

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Defendants Reply in Support of Defendants Motion to Dismiss

Case No. 4:16-CV-654-PJH