     06-0104-cv
     Karpova v. Snow



 1                              UNITED STATES COURT OF APPEALS
 2                                  FOR THE SECOND CIRCUIT
 3
 4                                      _______________
 5
 6                                     August Term, 2006
 7
 8      (Argued September 11, 2006                    Decided August 14, 2007)
 9
10                                   Docket No. 06-0104-cv
11
12                                      _______________
13
14                                      Judith Karpova,
15
16                                                 Plaintiff-Appellant,
17
18                                            v.
19
20                     John Snow, Secretary, Department of the Treasury,
21                                 United States of America,
22
23                                                 Defendants-Appellees.
24
25                                      _______________
26
27   Before:
28                            CARDAMONE, SOTOMAYOR, and KATZMANN,
29                                      Circuit Judges.
30
31                                      _______________
32
33        Plaintiff Judith Karpova appeals from the judgment entered
34   October 31, 2005 in the United States District Court for the
35   Southern District of New York (McMahon, J.) dismissing her
36   complaint. Karpova alleged the Department of Treasury's Office
37   of Foreign Assets Control had violated her constitutional rights
38   and acted in an arbitrary and capricious manner in violation of
39   the Administrative Procedure Act when it fined her for traveling
40   to Iraq in violation of the Iraqi Sanctions Regulations.
41
42            Affirmed.
43
44                                      _______________
 1                            _______________
 2
 3
 4   MICHAEL H. SUSSMAN, Law Offices of Michael H. Sussman, Goshen,
 5        New York, for Plaintiff-Appellant.
 6
 7   ROSS E. MORRISON, Assistant United States Attorney, New York, New
 8        York (Michael J. Garcia, United States Attorney, Sara L.
 9        Shudofsky, Assistant United States Attorney, Southern
10        District of New York, New York, New York, of counsel), for
11        Defendants-Appellees.
12
13                            _______________
1    CARDAMONE, Circuit Judge:

2         Plaintiff Judith Karpova (plaintiff or appellant), a

3    resident of New York State and an American citizen, traveled to

4    Iraq in 2003.   Purporting to belong to a group known as the

5    Truth, Justice, and Peace Human Shield Action Project (Project),

6    whose aim was to deter the bombing of civilian infrastructure

7    facilities by acting as human shields at such sites in that

8    country, plaintiff claims she went to Iraq in three capacities:
9    as an ordained minister to bear witness to the effect on Iraq's

10   people of economic sanctions, as a professional writer and

11   journalist sending letters or reports to the Jersey Journal, a

12   daily newspaper in Jersey City, New Jersey, and as a human shield

13   to prevent destruction of civilian infrastructure in the event of

14   renewed hostilities.   Unfortunately, in doing this and despite

15   her good intentions, plaintiff transgressed several executive

16   orders and United States Treasury Department regulations that

17   governed what interactions United States citizens could have with
18   Iraq while economic sanctions were in place.

19        Because plaintiff violated those orders and regulations, the

20   Office of Foreign Assets Control within the United States

21   Department of the Treasury (Foreign Assets Control Office or

22   Agency) assessed against her a civil monetary penalty of $6,700.

23   To set aside this fine, plaintiff brought suit against the

24   government in the United States District Court for the Southern

25   District of New York (McMahon, J.).   In her complaint plaintiff

26   alleged that her First and Fifth Amendment rights were violated

                                      2
1    and that the government had engaged in final agency action

2    against her in an unlawful manner.    Judge McMahon granted summary

3    judgment in favor of the government, dismissing plaintiff's

4    complaint in a judgment entered October 31, 2005.   From that

5    judgment Karpova appeals.

6                                 BACKGROUND

7                  A.   Statutory and Regulatory Background

8         In 1990 Congress passed the Iraqi Sanctions Act, which among
9    other things, directed the President to "continue to impose the

10   trade embargo and other economic sanctions with respect to Iraq."

11   Pub. L. No. 101-513, § 586C(a), 104 Stat. 1979, 2048 (1990).

12   President Bush issued executive orders premised on the notion

13   that Iraqi government policies constituted an unusual and

14   extraordinary threat to the national security of the United

15   States, directing that economic sanctions be imposed on Iraq and

16   authorizing the Secretary of the Treasury to promulgate

17   regulations implementing prohibitions on, among other things, the
18   exportation of services to Iraq and transactions related to

19   travel to Iraq.    Exec. Order No. 12,722, 55 Fed. Reg. 31,803

20   (Aug. 2, 1990); Exec. Order No. 12,724, 55 Fed. Reg. 33,089 (Aug.

21   9, 1990).   On January 18, 1991 the Foreign Assets Control Office

22   of the United States Treasury Department issued the Iraqi

23   Sanctions Regulations (regulations) implementing the prohibitions

24   outlined in the President's executive orders and outlining

25   procedures for dealing with violations.    See 31 C.F.R.

26   §§ 575.204-211, 575.702-704.

                                       3
1         Under these regulations, the Foreign Assets Control Office

2    may demand that people engaging in transactions related to Iraq

3    provide it with complete information relative to those

4    transactions.   See 31 C.F.R. § 501.602.    When the Agency has a

5    reasonable belief that a violation of the regulations has

6    occurred, it issues a Prepenalty Notice.     31 C.F.R. § 575.702.

7    The Prepenalty Notice informs the alleged violator that a

8    monetary penalty will be imposed unless he or she responds in
9    writing explaining why a penalty is inappropriate.     Id.   If the

10   recipient replies in such a manner, the Director of the Foreign

11   Assets Control Office then makes a final determination as to

12   whether a violation has occurred and, if so, what financial

13   penalty should be imposed.     Such final determination is set forth

14   in a Penalty Notice.     31 C.F.R. § 575.704.

15                       B.    Karpova Travels to Iraq

16        In early 2003 the Project hoped to bring attention to the

17   fact that the United States allegedly had bombed civilian
18   infrastructure in Iraq during the 1990 Gulf War.    The method the

19   Project chose to get public attention was to send non-Iraqis to

20   these sites to act as human shields.     The presence of civilians

21   at the sites, it was hoped, would publicize the threat to them

22   were the United States to begin a bombing campaign, and perhaps

23   deter the United States from acting.     Plaintiff Karpova joined

24   this group and sent a letter to supporters indicating her plans

25   to travel to Iraq in February 2003 as a member of the Project.

26   She requested supporters to send small donations to help finance

                                        4
1    her travel expenses.    On February 19, 2003 she arrived in Iraq

2    and remained there until March 9.        Karpova did not obtain a

3    license that might have authorized her, despite the economic

4    sanctions, to engage in travel-related transactions involving

5    Iraq.    While there, plaintiff acted as a preemptive human shield.

6    Although Karpova left the country before the United States'

7    bombing campaign actually began, appellant was near an oil

8    refinery while in Iraq.       Karpova also went on guided tours in
9    Basra and Baghdad, visited hospitals and schools, and spent time

10   "looking, listening, talking, and writing."        Her writing took the

11   form of four letters sent back to America that were printed in

12   installments by the Jersey Journal.        The Foreign Assets Control

13   Office learned of Karpova's unauthorized trip from press

14   accounts.

15                            C.    Agency's Response

16           On March 20, 2003 the Foreign Assets Control Office sent a

17   letter to plaintiff requiring that she provide the Department of
18   the Treasury with a detailed written report concerning her trip

19   to Iraq, so that it could ascertain whether she had violated the

20   Iraqi Sanctions Regulations.      This "Requirement to Furnish

21   Information" specifically required Karpova to provide the dates

22   of her travel to Iraq, reason for her trip, and a detailed

23   itemization of all travel-related transactions in which she

24   engaged in connection with her trip.       Plaintiff responded on

25   April 21, 2003 with a lengthy letter, which included the dates

26   and various reasons for her trip, but failed to provide a

                                          5
1    detailed itemization of all travel-related transactions.

2    Instead, she simply asserted that all of her travel-related

3    transactions were taken care of by an organization called the

4    Peace, Friendship, and Solidarity Organization, and thus that she

5    was not required to spend any money during her 19 days in Iraq.

6         Plaintiff did not provide any proof to support her

7    statements despite the Agency's request that she provide a copy

8    of any travel-related receipts or records associated with her
9    expenditures in Iraq.   The Agency replied on June 23, 2004 by

10   sending Karpova a Prepenalty Notice stating she had violated the

11   Iraqi Sanctions Regulations by exporting her services to Iraq and

12   engaging in unauthorized travel-related transactions while there.

13   The Prepenalty Notice cited the following specific violations:

14   (1) attempting to collect funds for travel expenses to/from/

15   within Iraq, (2) departing Jordan for Iraq and arriving in Iraq,

16   (3) providing ministerial services, (4) serving as a freelance

17   journalist, (5) providing services to the government of Iraq by
18   shielding Iraqi government infrastructure from possible United

19   States military action, and (6) engaging in travel-related

20   transactions, including the purchase of food.   The Prepenalty

21   Notice proposed a penalty of $10,000, and it gave Karpova an

22   opportunity to submit a written response.   The Prepenalty Notice

23   requested that Karpova explain why the penalty should not be

24   issued or why, if issued, it should be reduced.

25        Karpova answered this request on August 5, 2004 with a

26   letter from her lawyer arguing that she had not provided services

                                      6
1    to any agency of the Iraqi government.   The letter contended that

2    the regulatory scheme under the Iraqi Sanctions Regulations

3    violated Karpova's due process rights and exceeded the authority

4    of the Executive branch, and that the penalty violated Karpova's

5    First and Fifth Amendment rights.    She did not dispute that she

6    had engaged in transactions related to travel in Iraq, but she

7    incorporated by reference her previous letter as something for

8    the Foreign Assets Control Office to consider in determining the
9    appropriate penalty.

10        On March 14, 2005 the Agency sent Karpova a Penalty Notice.

11   The Penalty Notice ruled that she had violated the Iraqi

12   Sanctions Regulations by engaging in prohibited transactions

13   relating to Iraq, as detailed in the Prepenalty Notice.    It

14   explained that Karpova's response had not presented any new facts

15   or explanations to refute the Foreign Assets Control Office's

16   charges that Karpova violated the regulations.   The fine was

17   reduced from $10,000 to $6,700 in light of the fact that
18   plaintiff had provided a written response to the Prepenalty

19   Notice and because it was her first offense.

20                          D.   The Instant Suit

21        On June 9, 2005 plaintiff brought the instant suit alleging

22   that the fine imposed against her for her travel to Iraq was

23   arbitrary and capricious in violation of the Administrative

24   Procedure Act and unconstitutional under the First and Fifth

25   Amendments.   She also claimed the Iraqi Sanctions Regulations

26   were themselves unlawful.   Karpova requested the district court

                                      7
1    declare the Penalty Notice and 31 C.F.R. § 575.207 (prohibited

2    transactions relating to Iraq) null and void and sought a

3    permanent injunction preventing the United States from blocking

4    or restricting her First and Fifth Amendment rights.    On October

5    25, 2005 the district court granted summary judgment in favor of

6    the government and dismissed Karpova's complaint in its entirety.

7    This appeal followed.

8                                 DISCUSSION
9                 I   Administrative Procedure Act Claims

10        On appeal from a grant of summary judgment involving a claim

11   brought under the Administrative Procedure Act, we review the

12   administrative record de novo without according deference to the

13   decision of the district court.    Supreme Oil Co. v. Metro.

14   Transp. Auth., 157 F.3d 148, 151 (2d Cir. 1998) (per curiam).

15   Under 5 U.S.C. § 706(2)(A) a reviewing court must hold unlawful

16   and set aside any agency action found to be arbitrary,

17   capricious, an abuse of discretion, or otherwise not in
18   accordance with law.    However, "[t]he scope of review under the

19   'arbitrary and capricious' standard is narrow," and courts should

20   not substitute their judgment for that of the agency.     Motor

21   Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins.

22   Co., 463 U.S. 29, 43 (1983).   Instead, an agency determination

23   will only be overturned when the agency

24             has relied on factors which Congress has not
25             intended it to consider, entirely failed to
26             consider an important aspect of the problem,
27             offered an explanation for its decision that
28             runs counter to the evidence before the

                                       8
1               agency, or is so implausible that it could
2               not be ascribed to a difference in view or
3               the product of agency expertise.
4
5    Id.   In other words, so long as the agency examines the relevant

6    data and has set out a satisfactory explanation including a

7    rational connection between the facts found and the choice made,

8    a reviewing court will uphold the agency action, even a decision

9    that is not perfectly clear, provided the agency's path to its

10   conclusion may reasonably be discerned.     Id.
11         The Penalty Notice was far from clear.      It did not

12   explicitly set forth the basis for its determination that Karpova

13   violated the Iraqi Sanctions Regulations.    Instead, it referenced

14   the fact that the Prepenalty Notice had accused her of engaging

15   in certain prohibited transactions relating to Iraq and found

16   that such transactions violated the regulations.       The Prepenalty

17   Notice had listed a number of different violations of the

18   regulations assertedly committed by Karpova and accused appellant

19   of "exportation of services to Iraq" in violation of 31 C.F.R.
20   § 575.205 and of "unauthorized travel-related transactions in

21   Iraq" in violation of 31 C.F.R. § 575.207.

22         Specifically, the Prepenalty Notice had accused her of the

23   six acts outlined a moment ago and had cited the applicable

24   regulations.   But strikingly, in the first paragraph of the

25   Penalty Notice, where the charge against Karpova and the Agency's

26   ruling are listed, there is no mention of plaintiff providing

27   services to Iraq.   Instead, the Penalty Notice just cited the

28   accusation that Karpova had engaged in the transactions detailed

                                      9
1    in the Prepenalty Notice and ruled that "such transactions

2    violated the Iraqi Sanctions Regulations" (emphasis added).     As a

3    consequence, in determining whether the regulations were applied

4    in an arbitrary and capricious manner, we look at whether the

5    transactions listed in the Prepenalty Notice were sufficient to

6    support the Agency's determination that Karpova violated

7    § 575.207 by "engag[ing] in any transaction relating to travel by

8    any U.S. citizen . . . to Iraq."
9         We turn first to the specific allegations against appellant.

10   The three transactions Karpova was accused of were:   (1)

11   attempting to collect funds for travel expenses to/from/within

12   Iraq, (2) departing Jordan for Iraq and arriving in Iraq, and (6)

13   purchasing food while in Iraq.   It was not arbitrary and

14   capricious for the Foreign Assets Control Office to determine

15   that Karpova had engaged in these three transactions.   Karpova's

16   own letter indicated that she solicited small donations to help

17   finance her travel expenses to Iraq.   The regulations do not
18   define the term "transaction," but it was not unreasonable for

19   the Agency to decide that solicitation of funds constitutes a

20   transaction.   Appellant admitted in addition in her letter

21   replying to the Prepenalty Notice that she traveled to Iraq

22   during the winter of 2003.   Insofar as the purchase of food in

23   Iraq is concerned, appellant conceded in an article she submitted

24   to the Jersey Journal that although she was not paying for living

25   expenses during her first week in Iraq, she expected her group

26   would start paying its way once they got organized.   Plaintiff

                                      10
1    subsequently maintained she was not required to spend any money

2    in Iraq, but she did not adduce any proof to support that

3    assertion despite the demand that she provide a detailed

4    itemization of all travel-related transactions backed by

5    pertinent records.   Given the foregoing, it was not arbitrary and

6    capricious for the Agency to rule Karpova had engaged in

7    transactions relating to travel in Iraq in violation of the

8    regulations.    Thus, the Agency's action may not be faulted under
9    the Administrative Procedure Act.

10        We note next that the Penalty Notice also mentioned that

11   appellant had provided a service to the government of Iraq by

12   shielding the oil refinery from possible United States military

13   action.   This indicates that perhaps Karpova was fined not only

14   for the transactions she engaged in, but also for the services

15   she provided.   Further, the Prepenalty Notice could be read to

16   imply that Karpova was punished for engaging in another type of

17   service as well -- serving as a freelance journalist.     If so,
18   then the Agency's determination was flawed.     There is no

19   indication in the record that she sought to render this service

20   to the Iraqi government, and so the Agency would have acted

21   arbitrarily and capriciously had it punished her for this

22   activity.   However, we need not determine the exact contours of

23   the conduct for which appellant was fined, since the Foreign

24   Assets Control Office could have fined her $6,700 for committing

25   any one of the six alleged acts.      See 31 C.F.R. § 575.701.   Thus,

26   it is unnecessary to consider whether the services provided by

                                      11
1    appellant to Iraq could have served as an alternative basis for

2    this penalty.

3         Even if we were to conclude the Agency alternatively based

4    the fine on one or more of the alleged services provided by

5    Karpova, and find such alternative grounds were flawed, remand is

6    not required here.   We are confident that the Agency would reach

7    the same conclusion absent any such error.     See, e.g., NLRB v.

8    Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969) (not requiring
9    remand where it serves as an "idle and useless formality"); NLRB

10   v. Am. Geri-Care, Inc., 697 F.2d 56, 64 (2d Cir. 1982) (stating

11   that remand is required "only where there is a significant chance

12   that but for the error, the agency might have reached a different

13   result").

14        Similarly, even if plaintiff is correct that some of the

15   transactions she engaged in in Iraq related to journalistic

16   activities and thus were exempted from sanction by § 575.207,

17   remand on that basis would be futile.   By way of background,
18   § 575.207 provides that transactions "[r]elating to journalistic

19   activity by persons regularly employed in such capacity by a

20   newsgathering organization" are not sanctionable, and

21   § 575.416(b)(1) clarifies that certain freelance journalists are

22   covered by § 575.207's exemption.    Karpova's argument is that her

23   solicitation of funds, her travel to Iraq, and her purchase of

24   food all related to her freelance journalistic activity, and thus

25   were not sanctionable under the regulations.    Unfortunately, the

26   Agency did not provide much explanation on this issue; it merely

                                     12
1    noted in the Prepenalty Notice that Karpova acted as a freelance

2    journalist while in Iraq, but failed to address in its final

3    decision whether she qualified as a journalist under § 575.416

4    and whether these transactions were covered by this exception.

5    Yet, plaintiff overlooks § 575.416(c), which notes that

6    "[a]uthorized travel transactions are limited to those incident

7    to travel for the purpose of collecting and disseminating

8    information for a recognized newsgathering organization, and do
9    not include travel transactions related to any other activity in

10   Iraq" (emphasis added).   Karpova admits that among her activities

11   within Iraq were excursions to "defend Iraqi civilian

12   infrastructure from bombing."    Such activity clearly would not

13   fall within the journalistic exception, and thus we are confident

14   the Agency would reach the same conclusion even were we to

15   determine that some of Karpova's activities in Iraq were exempted

16   by the journalistic exception.

17        Appellant finally declares that the regulations themselves
18   exceeded the authority Congress gave to the President to limit

19   economic contact with Iraq.   This argument may be swiftly

20   rejected.   The regulations were promulgated to implement

21   executive orders which were issued under the authority granted to

22   the President by both the International Emergency Economic Powers

23   Act, 50 U.S.C. § 1701 et seq. and the United Nations

24   Participation Act (UNPA), 22 U.S.C. § 287 et seq.    See Exec.

25   Order No. 12,722, 55 Fed. Reg. 31,803 (Aug. 2, 1990); Exec. Order

26   No. 12,724, 55 Fed. Reg. 33,089 (Aug. 9, 1990); see also Sacks v.

                                      13
1    Office of Foreign Assets Control, 466 F.3d 764, 775-77 (9th Cir.

2    2006); Office of Foreign Assets Control v. Voices in Wilderness,

3    329 F. Supp. 2d 71, 78 (D.D.C. 2004) (finding authority solely

4    under the UNPA).   In addition, the Iraqi Sanctions Act of 1990

5    directed the President to "continue to impose the trade embargo

6    and other economic sanctions with respect to Iraq and Kuwait that

7    the United States is imposing . . . pursuant to Executive Order[]

8    Numbered 12724 . . . , and, to the extent [it is] still in
9    effect, Executive Order[] Numbered 12722 . . . ."   Pub. L. No.

10   101-513, § 586C(a), 104 Stat. 1979, 2048 (1990).    To the extent

11   that appellant asserts that there was not a "legal predicate for

12   imposition and extension of the economic sanctions" because there

13   had been no finding that the Iraqi regime posed "an urgent threat

14   to the security of the United States in 2003[]," we note that in

15   deciding to impose sanctions the President was acting in the area

16   of foreign policy pursuant to congressional authorization.   We

17   review with great deference such executive branch determinations.
18   Palestine Info. Office v. Schultz, 853 F.2d 932, 937 (D.C. Cir.

19   1988).   We decline to second-guess the President's determination

20   that the Iraqi regime posed an urgent threat to the United States

21   such that he could punish those who violated the economic and

22   travel restrictions pursuant to the regulations.    The district

23   court's dismissal of plaintiff's challenge to the authority for

24   the regulations should be affirmed.




                                     14
1                        II    Procedural Due Process Claim

2         The district court granted the government summary judgment

3    with respect to Karpova's due process claim.          We review that

4    grant de novo, construing the facts in the light most favorable

5    to Karpova.    See Tocker v. Philip Morris Cos., 470 F.3d 481, 486

6    (2d Cir. 2006).     Summary judgment is only appropriate when there

7    is no genuine issue as to any material fact, making judgment

8    appropriate as a matter of law.           Id. at 486-87.
9                             A.    Opportunity to be Heard

10        Under the Fifth Amendment's Due Process Clause no person may

11   be deprived of life, liberty, or property without reasonable

12   notice and an opportunity to be heard.           See Mullane v. Cent.

13   Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).          The

14   opportunity to be heard must be "at a meaningful time and in a

15   meaningful manner."           Mathews v. Eldridge, 424 U.S. 319, 333

16   (1976).   However, the Due Process Clause does not necessarily

17   require that a person be given an opportunity to be heard orally
18   in a testimonial setting; the opportunity for written submissions

19   may be sufficient.        See Interboro Inst., Inc. v. Foley, 985 F.2d

20   90, 93 (2d Cir. 1993).          The liberty interest and legal issues

21   involved determine the kind of hearing necessary.           Id.

22   Therefore, in this context so long as those that are to decide

23   have before them claimant's legal arguments and do not act on a

24   one-sided or incomplete record, the Due Process Clause is

25   satisfied.    Id.



                                             15
1         There is no dispute that appellant was given notice before

2    she was fined.   The key question is whether the opportunity she

3    was given to be heard was sufficient.   The Agency's procedural

4    safeguards guaranteed that prior to fining Karpova, the Foreign

5    Assets Control Office informed her of its tentative assessment,

6    explained to her the basis for that assessment, provided her with

7    a summary of the evidence it considered relevant, and offered her

8    an opportunity to respond in a written presentation.   See, e.g.,
9    Mathews, 424 U.S. at 346.   The Agency considered the legal

10   arguments in Karpova's written submissions and issued a ruling

11   against her.   Appellant has not identified in what way a

12   testimonial hearing would have benefitted her.   Thus, there is no

13   genuine issue of material fact with regard to whether adequate

14   notice and an opportunity to be heard were provided to plaintiff.

15         B.   Did the Foreign Assets Control Office Act as Both
16                          Prosecutor and Judge?
17
18        We had a concern arising from appellant's arguments that due

19   process may have been violated in this case because the same
20   titled officer served as both prosecutor and judge in the

21   administrative proceedings.   The Supreme Court has explained that

22   the combination of investigative and adjudicative functions in

23   the same individual does not necessarily create an

24   unconstitutional risk of bias so as to imperil the Due Process

25   Clause's requirement that trials be held before fair tribunals.

26   See Withrow v. Larkin, 421 U.S. 35, 46, 47, 57-58 (1975).

27   Instead, courts make case by case judgments based on the special


                                     16
1    facts and circumstances of each particular situation in

2    determining whether the risk of unfairness is intolerably high.

3    Id. at 58.   However, we have recognized that it presents a

4    troublesome question to determine when a single individual could

5    serve as both prosecutor and judge in the same case without

6    violating due process.       MFS Sec. Corp. v. SEC, 380 F.3d 611, 618

7    (2d Cir. 2004).    But here, when it is the same office -- rather

8    than the same person -- that performs multiple functions, due
9    process is not violated.      Id. at 618-19.

10        Here, the Director of the Office of Foreign Assets Control

11   performed a prosecutorial function by sending Karpova the June

12   23, 2004 Prepenalty Notice that first notified plaintiff of the

13   specific charges against her.      The Director of the same office

14   made the Agency's final ruling against Karpova in the March 14,

15   2005 Penalty Notice.    However, the Director on June 23, 2004 was

16   R. Richard Newcomb, while the Director on March 14, 2005 was

17   Robert W. Werner.    Since the same individual did not perform
18   adjudicative and non-adjudicative functions, there is no risk of

19   bias in the case at hand and thus no due process violation.

20                III   Right to Travel and Free Speech Claims

21                           A.    Standard of Review

22        The trial court dismissed Karpova's First Amendment free

23   speech and Fifth Amendment right to travel claims under Federal

24   Rule of Civil Procedure 12(b)(6) for failure to state claims.        We

25   review de novo a district court's decision to dismiss a complaint

26   pursuant to Rule 12(b)(6), accepting as true all factual

                                         17
1    allegations contained in the complaint and drawing all inferences

2    in plaintiff's favor.    Global Network Commc'ns, Inc. v. City of

3    New York, 458 F.3d 150, 154 (2d Cir. 2006).

4                        B.    Right to Travel Claim

5         Although the constitutional right to travel within the

6    United States is virtually unqualified, the right to travel

7    internationally is simply an aspect of the liberty protected by

8    the Due Process Clause of the Fifth Amendment, and as such may be
9    regulated within the bounds of due process.       Califano v. Torres,

10   435 U.S. 1, 4 n.6 (1978) (per curiam).   Therefore, this liberty

11   interest does not itself overcome the weighty foreign policy

12   concerns that may support travel restrictions.      See Regan v.

13   Wald, 468 U.S. 222, 242 (1984).    The President, in an executive

14   order implementing the economic sanctions authorized by Congress

15   in the Iraqi Sanctions Act of 1990, declared that the "policies

16   and actions of the Government of Iraq constitute an unusual and

17   extraordinary threat to the national security and foreign policy
18   of the United States," and therefore ordered that transactions by

19   United States citizens relating to travel to Iraq be prohibited.

20   Exec. Order No. 12,722, 55 Fed. Reg. 31,803 (Aug. 2, 1990).

21   Since the restriction on engaging in such transactions was based

22   on these concerns of foreign policy, the travel restriction was

23   not a violation of Karpova's liberty interests under the Fifth

24   Amendment's Due Process Clause.




                                       18
1                           C.   Free Speech Claim

2         Under the First Amendment, a restriction against traveling

3    to a specified country is "an inhibition of action," not speech.

4    Zemel v. Rusk, 381 U.S. 1, 16 (1965).     As the Zemel Court

5    explained, many restrictions on action could "be clothed by

6    ingenious argument in the garb of decreased data flow."        Id. at

7    16-17.   Yet such arguments are to no avail since the First

8    Amendment guarantees a citizen the right to speak and publish,
9    but does not guarantee an unrestrained right to gather

10   information.   Id. at 17.   Karpova was fined because of her

11   actions in violating the travel regulations, not for her speech.

12   Consequently, her First Amendment rights were not violated.

13                                CONCLUSION

14        Accordingly, for the foregoing reasons, the grant of summary

15   judgment by the district court dismissing Karpova's complaint is

16   affirmed.




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