EFTA01130803.pdf

Case 4:16-cv-00654-PJH Document 41 Filed 04/13/16 Page 1 of 10 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 11 12 JOHN DOE, TWO, et al., Case No. 16-cv-0654-PJH 13 Plaintiffs, 14 v. ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION 15 JOHN KERRY, et al., 16 Defendants. 17 18 19 Plaintiffs' motion for preliminary injunction came on for hearing before this court on 20 March 30, 2016. Plaintiffs appeared by their counsel Janice M. Bellucci, and defendants 21 appeared by their counsel Kathryn L. Wyer. Having read the parties' papers and 22 carefully considered their arguments and the relevant legal authority, the court hereby 23 DENIES the motion. 24 BACKGROUND 25 This case involves a constitutional challenge to the implementation of the 26 International Megan's Law to Prevent Child Exploitation and Other Sexual Crimes 27 Through Advanced Notification of Traveling Sex Offenders ("IML"), Pub. L. No. 114-119, 28 130 Stat. 15 (2016), which was signed into law by the President on February 8, 2016. EFTA01130803  Case 4:16-cv-00654-PJH Document 41 Filed 04/13/16 Page 2 of 10 1 Plaintiffs filed the complaint on February 9, 2016, and filed the present motion on March 2 4, 2016.I 3 The IML was enacted to "protect children and others from sexual abuse and 4 exploitation, including sex trafficking and sex tourism." IML, Preamble. In enacting the 5 IML, Congress noted that "Maw enforcement reports indicate that known child-sex 6 offenders are traveling internationally." IML § 2(4). Congress found that "[t]he 7 commercial sexual exploitation of minors in child sex trafficking and pornography is a 8 global phenomenon," with millions of child victims each year. Id. § 2(5). 9 Congress further observed that the registration and notification provisions of the 10 Sex Offender Registration and Notification Act ("SORNA"), enacted in 2006 as part of the 11 Adam Walsh Child Protection and Safety Act, Pub. L. No. 109-248, §§ 102-155, 120 Stat. 12 587, were intended to "protect children and the public at large by establishing a = o 0 0 T m=ts 13 comprehensive national system for the registration and notification to the public and law -;.2_ 14 enforcement officers of convicted sex offenders." IML § 2(3). In Nichols v. United States V.) o U 15 S.Ct. , 2016 WL 1278473 (U.S. Apr. 4, 2016), the Supreme Court recognized that as a 16 SORNA's purpose was to "make more uniform what had remained 'a patchwork of co c D L 17 federal and 50 individual state registration systems,' with 'loopholes and deficiencies' that 18 had resulted in an estimated 100,000 sex offenders becoming 'missing' or 'lost.'" Id. 19 2016 WL 1278473 at *5 (citation omitted). 20 Thus, the IML builds on the existing notification programs operated by the United 21 States Marshals Service ("USMS") and the Department of Homeland Security's ICE HSI 22 in order to provide advance notice to other countries when registered sex offenders in the 23 United States intend to travel internationally, and to encourage reciprocal arrangements 24 with foreign governments to receive notifications from those countries when sex 25 offenders seek to travel to the United States. IML Preamble & § 7- see also Declaration 26 of Acting Deputy Assistant Director Patrick Lechleitner ("Lechleitner Decl.") in opposition 27 28 Plaintiffs filed a first amended complaint on March 9, 2016, but the original complaint is the operative complaint for purposes of the present motion. 2 EFTA01130804  Case 4:16-cv-00654-PJH Document 41 Filed 04/13/16 Page 3 of 10 1 to plaintiffs' motion, ¶¶ 4-7; Declaration of Eric C. Mayo ("Mayo Decl.") 1113-5, 10. 2 In the IML, Congress criminalized the "knowin[g] fail[ure] to provide information 3 required by [SORNA] relating to intended travel in foreign commerce." IML § 6(b)(2). 4 Such information includes "anticipated dates and places of departure, arrival, or return[;] 5 carrier and flight numbers for air travel [;] destination country and address or other 6 contact information therein," et cetera. Nichols 2016 WL 1278473 at *5 (quoting IML 7 § 6(a)(1)(B)). 8 The IML establishes an "Angel Watch Center" within ICE HSI's Child Exploitation 9 Investigations Unit, IML § 4(a), intended to carry on the activities of the former Operation 10 Angel Watch. Lechleitner Decl. ¶ 14. Among other things, where the Angel Watch 11 Center has identified internationally traveling individuals convicted of sexual offenses scs 12 against minors and where certain conditions are satisfied, the IML provides that the = o 0 :1= 13 Center "may transmit relevant information to the destination country about [the] sex U 14 .s`t..) offender." IML § 4(e)(1)-(3). V.) 6 t 15 The IML also continues USMS's notification program, see Mayo Decl. 1110, t as a 16 providing that USMS, through its National Sex Offender Targeting Center, "may — co c D L 17 transmit notification of international travel of a sex offender to the destination country of 18 the sex offender, including to the visa-issuing agent or agents" of the destination country, 19 IML § 5(a)(1), and "share information relating to traveling sex offenders with other 20 Federal, State, local, and foreign agencies and entities, as appropriate," id. § 5(a)(2). 21 Such notifications may be transmitted "through such means as are determined 22 appropriate" by USMS, "including through the INTERPOL notification system and through 23 Federal Bureau of Investigation Legal attaches." Id. § 5(e). In addition, USMS may also 24 "receive incoming notifications concerning individuals seeking to enter the United States 25 who have committed offenses of a sexual nature." Id. § 5(a)(3). Any such incoming 26 notification must be provided immediately to DHS. Id. 27 The IML attempts to close a loophole in the notification procedures, whereby an 28 offender might seemingly comply with IML requirements by providing notice of travel to 3 EFTA01130805  Case 4:16-cv-00654-PJH Document 41 Filed 04/13/16 Page 4 of 10 1 one country, and might appear on a flight manifest as traveling to that country, but might 2 then travel from that first destination country to his actual destination somewhere else 3 without detection by U.S. authorities. The IML tasks the Angel Watch Center with 4 "provid[ing] a written determination to the Department of State regarding the status of an 5 individual as a covered sex offender . . . when appropriate." IML § 4(e)(5). Only 6 individuals who have been convicted of a sex offense against a minor and are "currently 7 required to register under the sex offender registration program of any jurisdiction" qualify 8 as covered sex offenders for purposes of this provision. See id. § 8(c). 9 The IML prevents registered sex offenders whose offenses involved a child victim 10 from "thwarting [INC] notification procedures by country hopping to an alternative 11 destination not previously disclosed," by directing the State Department to "develop a 12 passport identifier" that would allow such individuals to be identified once they arrive at 13 their true destination. 162 Cong. Rec. H390 (daily ed. Feb. 1, 2016) (statement of Rep. 14 Smith). The Secretary of State is directed not to issue a passport to individuals identified 15 by the Angel Watch Center as covered sex offenders unless the passport contains a 16 unique identifier. Id. § 8(b). The Secretary of State may also revoke a passport 17 previously issued to such an individual if it does not contain such an identifier. Id. 18 Plaintiffs now seek a preliminary injunction to halt enforcement of §§ 4(e), 5, 6, 19 and 8 of the IML. 20 DISCUSSION 21 A. Legal Standard 22 An injunction is a matter of equitable discretion and is "an extraordinary remedy 23 that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." 24 Winter v. Natural Res. Def. Council, Inc. 555 U.S. 7, 22 (2008); see also Munaf v. Geren 25 553 U.S. 674, 689-90 (2008). A preliminary injunction "should not be granted unless the 26 movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong 27 520 U.S. 968, 972 (1997) (per curiam) (citation omitted). 28 A plaintiff seeking a preliminary injunction must establish that he is likely to 4 EFTA01130806  Case 4:16-cv-00654-PJH Document 41 Filed 04/13/16 Page 5 of 10 1 succeed on the merits, that he is likely to suffer irreparable harm in the absence of 2 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in 3 the public interest. Winter 555 U.S. at 20. Alternatively, the plaintiff may demonstrate 4 that the likelihood of success is such that "serious questions going to the merits were 5 raised and that the balance of hardships tips sharply in the plaintiff's favor," so long as 6 the other two elements of the Winter test are met. Alliance for Wild Rockies v. Cottrell 7 632 F.3d 1127, 1131-32 (9th Cir. 2011). 8 Showing "serious questions going to the merits" requires more than establishing 9 that "success is more likely than not," and it requires a plaintiff to demonstrate a 10 "substantial case for relief on the merits." Leiva-Perez v. Holder 640 F.3d 962, 967 (9th 11 Cir. 2011). And even where success on the merits is likely or "serious questions" are its 12 raised an injunction "is not a remedy which issues as of course." Weinberger v. Romero- = o co 0 rt, m.7. 13 Barcelo 456 U.S. 305, 311 (1982). 14 B. Plaintiffs' Motion Vi o U t 15 Plaintiffs argue in their motion that they are likely to succeed on the claims as a 16 asserted in the first, second, and third causes of action in the complaint, and that co c la _co) 17 because they can show likelihood of success, there is a presumption of likelihood of 'E 18 irreparable harm. 19 In the first cause of action, plaintiffs allege that the passport identifier provision 20 unlawfully compels speech, in violation of the First Amendment. Cplt ¶1152-54. In the 21 second cause of action, plaintiffs assert that by enforcing the notification and passport 22 identifier provisions of the IML against all individuals convicted of offenses involving a 23 minor without regard to the details of those offenses or the current threat posed by such 24 individuals, defendants deprive plaintiffs and other affected persons of the Fifth 25 Amendment's right to be free from arbitrary, unreasonable, and oppressive state action 26 that bears no rational relationship to the stated goal of protecting the public. Cplt ¶¶ 55- 27 58. In the third cause of action, plaintiffs allege that the notification provision of the IML 28 operates as "an international travel blacklist" for individuals required to register as sex 5 EFTA01130807  Case 4:16-cv-00654-PJH Document 41 Filed 04/13/16 Page 6 of 10 1 offenders for offenses involving a minor, and that it deprives them of their liberty interests 2 under the Fifth Amendment to travel without unreasonable burdens imposed by the 3 government. Cplt ¶¶ 59-63. 4 Plaintiffs challenge two of the IML's principal provisions — the "notification" 5 provision and the "passport identifier" provision. They contend that they are likely to 6 succeed with regard to their assertion that the notification provision violates substantive 7 due process and the right to travel, and with regard to their contention that the passport 8 identifier compels speech and violates the right to due process.' The court finds that 9 plaintiffs have not established likelihood of success with regard to either the claim that the 10 notification provision is facially unconstitutional or the claim that the passport identifier 11 provision is facially unconstitutional. 12 Plaintiffs allege that the notification provisions violate substantive due process and = o 0 0 T ”.7.ts 13 burden a fundamental right — the right to travel — and thus must be subjected to strict 14 scrutiny. However, while there may be a fundamental right to domestic travel, there is no Vi 6 t 15 such fundamental right to international travel. See Haig v. Agee 453 U.S. 280, 306-07 m as a 16 (1981); Freedom to Travel Campaign v. Newcomb 82 F.3d 1431, 1438-39 (9th Cir. co c la _co) 17 1996). 'E 18 Moreover, plaintiffs have failed to establish that they have standing to challenge 19 the notification provision, because they have not identified a "certainly impending" future 20 injury caused by this provision. To establish Article III standing, an injury must be 21 "concrete, particularized, and actual or imminent; fairly traceable to the challenged action; 22 and redressable by a favorable ruling." Monsanto Co. v. Geertson Seed Farms 561 U.S. 23 139, 149 (2010). A plaintiff's obligation to demonstrate standing is an "essential and 24 unchanging" prerequisite to a court's jurisdiction to consider the plaintiff's claims. Lujan 25 v. Defenders of Wildlife 504 U.S. 555, 560 (1992). 26 2 The court notes, however, that at the hearing, plaintiffs' counsel stated that "for 27 purposes of the motion only," plaintiffs' position is that they are likely to succeed with 28 regard to the second and third causes of action, but not with regard to the first cause of action (or the other causes of action not listed here). 6 EFTA01130808  Case 4:16-cv-00654-PJH Document 41 Filed 04/13/16 Page 7 of 10 1 A plaintiff must establish standing for each claim asserted and for each form of 2 relief sought. Oregon v. Legal Servs. Corp. 552 F.3d 965, 969 (9th Cir. 2009). Because 3 plaintiffs in the present case seek only declaratory and injunctive relief, they must identify 4 an "imminent prospect of future injury." Ervine v. Desert View Reg'I Med. Ctr. Holdings 5 753 F.3d 862, 868 (9th Cir. 2014). Such a future injury "must be certainly impending to 6 constitute injury in fact," and "allegations of possible future injury are not sufficient." 7 Clapper v. Amnesty Intl USA 133 S.Ct. 1138, 1147 (2013). 8 Both the USMS and ICE HSI have had international notification provisions in place 9 for over five years, and representatives of both agencies have indicated that the agencies 10 do not anticipate that the nature of their notifications will change as a result of the IML. 11 See Lechleitner Decl. ¶ 14; Mayo Decl. ¶ 10. Moreover, the Operation Angel Watch and 12 USMS notification schemes currently in effect utilize procedures to identify only = o 0 :1= 13 registered sex offenders who travel, and do not make notifications regarding persons not Tts -;.2_ 14 currently subject to registration requirements. See Lechleitner Decl. ¶ 12; Mayo Decl. V.)15 6 t 15 ¶¶ 5, 7-8. t as a 16 Because plaintiffs are not challenging the pre-existing notification provisions, they co c D L 17 have not shown that an alleged injury resulting from implementation of the IML would be 18 redressable. Further, any injury that plaintiffs might be asserting relating to such 19 notifications would not be fairly traceable to the IML, and cannot be said to be "certainly 20 impending." In light of these facts, the court finds that plaintiffs cannot show a likelihood 21 of success on the notification claim. 22 As for the passport identifier provision, the statutory language makes clear that no 23 such requirement is yet in effect, and that it will not take effect until after the Secretaries 24 of Homeland Security and State and the Attorney General have developed a process for 25 implementation, submitted a joint report to Congress regarding this proposed process, 26 and, finally, certified that the process has been successfully implemented. See IML 27 §§ 8(f), 9(a)-(b). 28 Defendants' declarant Jonathan M. Rolbin is the Director of Legal Affairs & Law 7 EFTA01130809  Case 4:16-cv-00654-PJH Document 41 Filed 04/13/16 Page 8 of 10 1 Enforcement Liaison for the Passport Services Directorate in the Bureau of Consumer 2 Affairs, U.S. Department of State. Rolbin Decl. ¶ 1. He is also the official charged with 3 responsibility for overseeing the U.S. State Department's role in the implementation of 4 the "passport identifier" provision set forth in IML § 8. Rolbin Decl. ¶ 2. 5 Mr. Rolbin notes that § 4(e)(5) of the IML indicates that the new Angel Watch 6 Center will identify the individuals to whom the passport identifier requirements would 7 apply and convey this information to the State Department. In addition, IML § 9 requires 8 that the Secretary of Homeland Security, the Secretary of State, and the Attorney 9 General develop a process to implement § 4(e)(5) and § 8 and submit a report to a 10 number of congressional committees regarding that process by 90 days after the date of 11 enactment, or May 9, 2016. The report is to contain a description of the proposed 12 process and a timeline and plan for implementation of the process, and is to identify the = o 0 0 T ”.7.ts 13 resources required to effectively implement the process. Rolbin Decl. ¶ 4. 14 Mr. Rolbin states that as of the date of his declaration (March 2, 2016), the State D.1) o U 15 t Department had not completed the necessary process to begin implementation of § 8, as a 16 and thus, no U.S. passports have received the unique identifiers required by the IML. cc) w _co) 17 Rolbin Decl. ¶ 3. Nor, he asserts, is the State Department prepared to begin placing 'E 18 such identifiers on U.S. passports at this time. Id. Here, based solely on the statutory 19 language, it is not clear, for example, what form the identifier will take, which citizens will 20 be required to carry a passport with the identifier, or whether the identifier will appear on 21 the face of the passport or will be readable only by a scanner. Thus, because significant 22 steps must be taken before the passport identifier can be implemented, the court finds 23 that plaintiffs' challenge is not yet ripe. 24 The ripeness doctrine avoids "premature adjudication" of disputes. See Scott v. 25 Pasadena Unif. Sch. Dist. 306 F.3d 646, 662 (9th Cir. 2002). It also "prevents courts 26 from deciding abstract issues that have not yet had a concrete impact on the parties." 27 Vieux v. E. Bay Reg'I Park Dist. 906 F.2d 1330, 1344 (9th Cir. 1990). In order to 28 determine whether a claim is ripe, courts focus on "the fitness of the issues for judicial 8 EFTA01130810  Case 4:16-cv-00654-PJH Document 41 Filed 04/13/16 Page 9 of 10 decision" and "the hardship to the parties of withholding court consideration." Nat'l Park 2 Hospitality Ass'n v. Dept of Interior 538 U.S. 803, 808 (2003). 3 In short, the timeline and plan required to be submitted to the congressional 4 committees have not yet been completed. While the State Department has identified 5 numerous steps that it must complete before the Department begins placing the passport 6 identifier into the passports of covered sex offenders, none of those steps had been 7 completed as of the date of Mr. Rolbin's declaration. Rolbin Decl. ¶ 5. Mr. Rolbin's "best 8 estimate" is that the State Department "will not be prepared to implement the passport 9 identifier provisions[] until at least some time in the fourth quarter of calendar year 2016." 10 Rolbin Decl. ¶ 6. 11 Mr. Rolbin also indicates in his declaration that the State Department "intends to 12 publish regulations regarding the denial/revocation of a passport without a passport = o 0 0 ”.7. 13 identifier." Rolbin Decl. ¶ 5(c). At the hearing, the court asked defendants' counsel Tts -;.2_ 14 whether the promulgation of regulations relating to implementation of the IML would V.) 6 t 15 require the publishing of proposed regulations followed by a public notice and comment N -,.7) as a 16 period. Defendants' counsel was unable to provide a response. co c D a) 17 The current status of the passport identifier provision — in particular, that the L •E O 18 implementation of the provision has not been settled — appears to have resulted in 19 plaintiffs being unable to articulate which acts they want the court to enjoin. In their 20 proposed order, submitted with the motion, plaintiffs requested that the court enjoin the 21 Secretary of State "from affixing any mark on a United States passport that indicates, or 22 is intended to indicate, that the passport holder has been convicted of a sex offense, has 23 engaged in child sex trafficking, or is likely to engage in child sex trafficking." This 24 request was phrased in the disjunctive. 25 However, at the hearing, plaintiffs' counsel indicated that plaintiffs would not 26 oppose the passport identifier "if it were limited to [those with] convictions for child 27 trafficking and tourism." In other words, plaintiffs do not necessarily seek to enjoin the 28 entire passport identifier provision. Plaintiffs' counsel reiterated that the purpose of the 9 EFTA01130811  Case 4:16-cv-00654-PJH Document 41 Filed 04/13/16 Page 10 of 10 1 IML was to address child sex trafficking, which she asserted was not what her clients 2 were convicted of and not what resulted in their being required to register as sex 3 offenders.' 4 For these reasons, the court finds that the claim regarding the passport identifier is 5 not yet ripe for resolution. The consequence for purposes of the present motion is that 6 plaintiffs cannot clearly articulate which acts they seek to have enjoined, or why. 7 Accordingly, plaintiffs fail to show a likelihood of success on the passport identifier claim. 8 CONCLUSION 9 In accordance with the foregoing, the court hereby DENIES plaintiffs' motion for a 10 preliminary injunction. 11 12 IT IS SO ORDERED. 13 Dated: April 13, 2016 14 PHYLLIS J. HAMILTON 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 3 Based on this argument and the declarations submitted by the individual plaintiffs in 27 this case, the court questions whether plaintiffs are mounting a facial constitutional 28 challenge, as they claim, as opposed to an as-applied challenge. Nevertheless, the court finds it unnecessary to resolve that issue at this time. 10 EFTA01130812