52 CA_IMF MTD REPLY

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Defendants’ Reply in Support of Defendants’ Motion to DismissCase No. 4:16-CV-654-PJH

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BENJAMIN C. MIZERPrincipal Deputy Assistant Attorney GeneralBRIAN J. STRETCHUnited States AttorneyANTHONY J. COPPOLINO

Deputy Director, Federal Programs BranchKATHRYN L. WYER (Utah Bar #9846)U.S. Department of Justice, Civil Division20 Massachusetts Avenue, N.W.Washington, DC 20530Tel. (202) 616-8475/Fax (202) [email protected]

Attorneys for Defendants

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

JOHN DOE #1 et al.,

Plaintiff,v.

JOHN KERRY, in his official capacity asSecretary of State of the United States et al.,

Defendants.

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

DEFENDANTS’ REPLY IN SUPPORTOF DEFENDANTS’ MOTION TODISMISS

Hearing Date: July 27, 2016Hearing Time: 9:00 amCourtroom: Courtroom 3Judge: Hon. Phyllis J. Hamilton

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


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TABLE OF CONTENTS

Page

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

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

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

II. PLAINTIFFS FAIL TO ESTABLISH THAT THEIR CHALLENGESTO THE IML’S PASSPORT IDENTIFIER PROVISION ARE RIPE ....... 6

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

IV. PLAINTIFF’S SUBSTANTIVE DUE PROCESS AND EQUALPROTECTION CLAIMS SHOULD BE DISMISSED .......................................... 9

V. PLAINTIFFS’ PROCEDURAL DUE PROCESS CLAIMS SHOULDBE DISMISSED ................................................................................................... 11

VI. PLAINTIFFS FAIL TO SUPPORT THEIR EX POST FACTO CLAIMAND THUS EFFECTIVELY CONCEDE THAT IT SHOULD BEDISMISSED ........................................................................................................ 15

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



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TABLE OF AUTHORITIES

PageCASES

Am. Meat Inst. v. U.S. Dep’t of Agric ., 760 F.3d 18 (D.C. Cir. 2014) ............................................8

Aptheker v. Sec’y of State , 378 U.S. 500 (1964) .............................................................................9

Babbitt v. United Farm Workers Nat’l 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

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

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

Clapper v. Amnesty Int’l USA , 133 S. Ct. 1138 (2013) ...................................................................4

Conn. Dep’t of Pub. Safety v. Doe , 538 U.S. 1 (2003) ............................................................13, 14

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

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

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

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

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

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

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

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

Nat’l Ass’n of Mfrs. v. SEC , 800 F.3d 518 (D.C. Cir. 2015) ..........................................................8

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

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. Comm’n v. Wycoff Co. , 344 U.S. 237 (1952) ................................................................6

Riley v. Nat’l Fed’n 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

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

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

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

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

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

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

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

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

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

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

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

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

STATUTES

International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes ThroughAdvanced Notification of Traveling Sex Offenders (“IML”), Pub. L. No. 114-119,130 Stat. 15 (2016) ..................................................................................................... passim

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



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

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



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INTRODUCTION

Plaintiffs’ Opposition to Defendants’ Motion to Dismiss fails to undermine this Court’s

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

notification provisions of the International Megan’s 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 IML’s 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

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

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

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

asserted injuries also reinforces the conclusion that their challenges to the IML’s passport

identifier provision are unripe. Ultimately, the IML’s notification and passport identifier

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

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

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

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

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

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

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

First Amendment. Plaintiffs’ citation of inapposite cases—compelled speech cases outside the

government speech context, and a single Supreme Court case addressing a state’s attempt to use

license plates on private vehicles to broadcast the state’s ideological slogan—cannot savePlaintiffs’ First Amendment claim from dismissal.

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

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

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.

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

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

government authorities that the IML’s notification and passport identifier provisions describe.

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

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

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

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

information provided through IML notifications and passport identifiers is inaccurate or

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

support their entitlement to any additional process.

Finally, Plaintiffs effectively concede that their ex post facto claim is without merit. In

sum, Plaintiffs’ claims are subject to dismissal in their entirety.

ARGUMENT

I. PLAINTIFFS FAIL TO ESTABLISH THEIR STANDING

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

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

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

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

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



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the IML’s 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 Court’s prior ruling. Instead, Plaintiffs make various arguments in support of

standing, but none of these arguments cast doubt on the Court’s prior conclusions.

Plaintiffs first attempt to differentiate DHS’s 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,

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

did in fact provide such notifications before the IML’s enactment. See Lechleitner Decl. ¶¶ 5, 7,

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

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

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

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

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

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

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

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

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

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

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

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

different because the already-existing international notification programs operated by DHS andUSMS are not speculative or hypothetical; rather, they are essentially the same programs that the

IML’s notification provisions describe. Moreover, Plaintiffs’ contention in their opposition brief

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

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



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only the IML’s 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 Court’s previous decision on this point.

Accordingly, Plaintiffs’ challenge to the IML’s 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

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

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

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

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

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

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

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

“certainly impending” injury, as set forth in Clapper v. Amnesty Int’l USA , 133 S. Ct. 1138, 1147

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

1 Plaintiffs’ characterization of the preexisting international notification programs as “secret” iswithout foundation. Indeed, Defendants have previously cited ICE News Releases posted on itswebsite describing the Angel Watch program. See Def. PI Opp., ECF No. 30, at 8 n.3.2 To be sure, implementation of the IML could lead Congress to allocate additional resources forthe DHS and USMS notification programs and could increase the volume of transmittednotifications. However, such a possibility remains hypothetical at this stage. Moreover, the scopeof the agencies’ authority would not change, so Plaintiffs cannot show that enjoining the IMLwould likely prevent any notifications concerning them that would otherwise have beenconveyed. There remains no likelihood that their alleged injuries would be redressed.3 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 andmanner 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 IML’s “notification

provision,” see Am. Compl. ¶ 46, their claims do not directly challenge the constitutionality ofthis 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

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

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

plaintiff alleged that California Alcoholic Beverage Control officials threatened businesses with

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

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

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

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

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

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

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

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

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

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

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

foreign sovereigns, who may proceed as they deem appropriate. There is no basis to assume thatthe IML notifications or passport identifier would have a “determinative or coercive effect” upon

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

information about an offender’s conviction or registration status is already public. Smith v. Doe ,

538 U.S. 84, 98, 101 (2003) (alleged consequences “flow not from the Act’s 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 FAIL TO ESTABLISH THAT THEIR CHALLENGES TO THEIML’S PASSPORT IDENTIFIER PROVISION ARE RIPE

Plaintiffs also fail to acknowledge the Court’s prior holding that Plaintiffs’ challenge to

the IML’s 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 IML’s 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. Comm’n 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 statute’s

operation,” Babbitt v. United Farm Workers Nat’l Union , 442 U.S. 289, 298 (1979), and that the

4 Plaintiffs also cite Franklin v. Massachusetts , 505 U.S. 788 (1992), as holding that a plaintiffmay 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 thePresident was ultimately responsible for sending apportionment determinations to Congress didnot 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 wasthe result of independent actions of third parties. Moreover, one Plaintiff’s assertion that Taiwandecided to deport him in June 2013—before the IML’s enactment—because of “informationfrom the United States government” does not suggest that the Taiwanese government wasinduced 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 ofthe 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

Comm’n , 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—

the basic building blocks of constitutional adjudication—remain the preferred route”). In this

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

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

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

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

provision should be dismissed as unripe.

III. PLAINTIFFS’ COMPELLED SPEECH CLAIM SHOULD BE DISMISSED

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

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

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

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

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

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

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

issuing government, not the passport holder. Indeed, if individuals were allowed to communicatetheir own messages in their passports, or to control the information that passports contain, these

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

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

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

cases— Wooley 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 government’s 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

State’s 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

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

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

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

to an ideological message on a license plate.

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

convey a message in their own private speech. For example, Riley v. Nat’l Fed’n for the Blind ,

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

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

cited by Plaintiffs, Nat’l Ass’n of Mfrs. v. SEC , 800 F.3d 518 (D.C. Cir. 2015), involved a

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

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

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

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

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

disclosures). 5

And Stuart v. Camnitz , 774 F.3d 238 (4th Cir. 2014), involved a requirement that, before performing an abortion, a doctor display a sonogram and, “in his or her own voice,”

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

5 R.J. Reynolds was overruled by Am. Meat Inst. v. U.S. Dep’t 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 Government’s 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. PLAINTIFFS’ SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTIONCLAIMS 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,

even assuming such a liberty interest exists, the IML’s notification and passport identifier

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

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

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

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

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

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

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

ignores the Court’s prior recognition that there is no “fundamental right to international travel.”

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

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

interest in international travel. Certainly, the IML’s notification and passport identifier

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

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

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

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

obtaining a passport or from traveling internationally. Moreover, following the Supreme Court’s

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

individual’s 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

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

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

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

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

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

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

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

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

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

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

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

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

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

regarding whether the IML’s provisions do or do not serve their intended purposes. Heller v.

Doe , 509 U.S. 312, 320 (1993) (government “has no obligation to produce evidence to sustainthe rationality of a statutory classification”); FCC v. Beach Commc’ns, Inc. , 508 U.S. 307, 313-

6 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 sexoffenders, are subject to a certain degree of unwarranted prejudice, they simply cannot beequated 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 IML’s 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

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

for sharing factual information with foreign government authorities regarding an individual’s

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

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

protection claims should therefore be dismissed.

V. PLAINTIFFS’ PROCEDURAL DUE PROCESS CLAIMS SHOULD BEDISMISSED

Plaintiffs also fail to state plausible claims that the IML’s notification and passport

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

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

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

communications to foreign authorities—either through notifications or a passport identifier—of

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

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

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

7 Contrary to Plaintiffs’ contention, Pl. Opp. at 24, the Court need not accept as true every factualassertion in Plaintiffs’ Amended Complaint, even when an assertion is contradicted by statutorytext or is wholly speculative. Indeed, it is well established that a court is not “required to acceptas true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonableinferences.” 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 individual’s 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 offender’s conviction is already a matter of public record.

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

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

The notion that the IML’s notification and passport identifier provisions—which, unlike such

websites, do not involve widespread dissemination of a registrant’s status but merely share

information with foreign authorities—are somehow uniquely burdensome, when the Supreme

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

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

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

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

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

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

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

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

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

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

#6. Am. Compl. ¶ 18. Moreover, the Amended Complaint also alleges that other Plaintiffs“routinely” travel to other countries, apparently without incident, despite the fact that pre-

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

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

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. Dep’t of Pub. Safety v. Doe , 538 U.S. 1, 6-7 (2003). Plaintiffs attempt to distinguish those

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

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

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

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

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

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

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

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

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

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

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

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

alleged transmission of such an assessment.

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

unavailing. Although Plaintiffs’ Opposition cites “admittedly inaccurate” notifications in the pastregarding Plaintiffs Doe #3 and Doe #4, Pl. Opp. at 24; see also id. at 23, no such allegation

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

Plaintiffs’ assertions are therefore not properly considered in connection with Defendants’

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 DHS’s or

USMS’s preexisting notification programs, and no Plaintiff alleges that he was subject to an

inaccurate notification after the IML’s 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. Dep’t of Pub. Safety , by arguing that “the IML’s notifications

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

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

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

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

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

by ICE HSI that was provided by DHS’s declarant, in opposition to Plaintiffs’ Motion for

Preliminary Injunction. But even assuming that the Court can properly take into account DHS’s

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

declaration only confirms that, like in Conn. Dep’t of Pub. Safety , an individual’s eligibility for a

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

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

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

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

in DHS’s declaration operates to rule out notifications that are otherwise authorized, based on an

assessment by ICE HSI of whether an eligible individual’s specific travel plan suggests intended

8 Plaintiffs also suggest they “dispute the factual accuracy and reasonableness” of IMLnotifications because, even if they fall within the IML’s definition of sex offenders subject tonotifications, 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 individual’s trip, among other things. However, where notifications are

transmitted, they do not include ICE HSI’s analysis; rather, only factual information about the

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

DHS’s declaration falls within the agency’s 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 IML’s mechanisms to correct errors. Plaintiffs’

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

VI. PLAINTIFFS FAIL TO SUPPORT THEIR EX POST FACTO CLAIM ANDTHUS EFFECTIVELY CONCEDE THAT IT SHOULD BE DISMISSED

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

post facto claim because there is no basis to conclude that the IML’s provisions are essentially

punitive in nature. Def. Mem. at 25. Indeed, the Supreme Court’s analysis in Smith forecloses

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

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

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

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

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

CONCLUSION

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

9 Plaintiffs’ contention that the review process described in DHS’s declaration is “integral toPlaintiffs’ 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 intheir brief, Plaintiffs emphasize that their claims only “concern the legality of legislation” asopposed to regulations or other agency implementation. See Pl. Opp. at 15. Also, Plaintiffs nowassert that their challenge to the passport identifier provision is purely facial while theirchallenge to the notification provisions is also as applied, see Pl. Opp. at 15, 23, but such adistinction is certainly not apparent in Plaintiffs’ Amended Complaint, which asserts identicalchallenges to the IML’s 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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Dated: May 18, 2016 Respectfully submitted,

BENJAMIN C. MIZERPrincipal Deputy Assistant Attorney General

BRIAN J. STRETCHUnited States AttorneyANTHONY J. COPPOLINODeputy Director, Federal Programs Branch

/s/ Kathryn L. WyerKATHRYN L. WYER (Utah #9846)U.S. Department of Justice, Civil Division20 Massachusetts Avenue, N.W.Washington, DC 20530Tel. (202) 616-8475/Fax (202) 616-8470

[email protected] Attorneys for Defendants


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