Karpova v. Snow, No. 06-0104 (2d Cir. 2007)

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06-0104-cv Karpova v. Snow 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _______________ August Term, 2006 (Argued September 11, 2006 Decided August 14, 2007) Docket No. 06-0104-cv _______________ Judith Karpova, Plaintiff-Appellant, v. John Snow, Secretary, Department of the Treasury, United States of America, Defendants-Appellees. _______________ Before: CARDAMONE, SOTOMAYOR, and KATZMANN, Circuit Judges. _______________ Plaintiff Judith Karpova appeals from the judgment entered October 31, 2005 in the United States District Court for the Southern District of New York (McMahon, J.) dismissing her complaint. Karpova alleged the Department of Treasury's Office of Foreign Assets Control had violated her constitutional rights and acted in an arbitrary and capricious manner in violation of the Administrative Procedure Act when it fined her for traveling to Iraq in violation of the Iraqi Sanctions Regulations. Affirmed. _______________ 1 2 3 4 5 6 7 8 9 10 11 12 13 _______________ MICHAEL H. SUSSMAN, Law Offices of Michael H. Sussman, Goshen, New York, for Plaintiff-Appellant. ROSS E. MORRISON, Assistant United States Attorney, New York, New York (Michael J. Garcia, United States Attorney, Sara L. Shudofsky, Assistant United States Attorney, Southern District of New York, New York, New York, of counsel), for Defendants-Appellees. _______________ 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. 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 Purporting to belong to a group known as the 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. 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 Unfortunately, in doing this and despite 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.). 26 alleged that her First and Fifth Amendment rights were violated 2 In her complaint plaintiff 1 and that the government had engaged in final agency action 2 against her in an unlawful manner. 3 judgment in favor of the government, dismissing plaintiff's 4 complaint in a judgment entered October 31, 2005. 5 judgment Karpova appeals. 6 9 From that BACKGROUND 7 8 Judge McMahon granted summary A. Statutory and Regulatory Background In 1990 Congress passed the Iraqi Sanctions Act, which among 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. 20 (Aug. 2, 1990); Exec. Order No. 12,724, 55 Fed. Reg. 33,089 (Aug. 21 9, 1990). 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. 26 §§ 575.204-211, 575.702-704. Exec. Order No. 12,722, 55 Fed. Reg. 31,803 On January 18, 1991 the Foreign Assets Control Office 3 See 31 C.F.R. 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. 5 reasonable belief that a violation of the regulations has 6 occurred, it issues a Prepenalty Notice. 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. See 31 C.F.R. § 501.602. When the Agency has a 31 C.F.R. § 575.702. 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. 14 in a Penalty Notice. 15 16 B. Such final determination is set forth 31 C.F.R. § 575.704. Karpova Travels to Iraq 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. 19 Project chose to get public attention was to send non-Iraqis to 20 these sites to act as human shields. 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. 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 The method the The presence of civilians Plaintiff Karpova joined 1 her travel expenses. On February 19, 2003 she arrived in Iraq 2 and remained there until March 9. 3 license that might have authorized her, despite the economic 4 sanctions, to engage in travel-related transactions involving 5 Iraq. 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. 9 Basra and Baghdad, visited hospitals and schools, and spent time Karpova did not obtain a While there, plaintiff acted as a preemptive human shield. Karpova also went on guided tours in 10 "looking, listening, talking, and writing." 11 form of four letters sent back to America that were printed in 12 installments by the Jersey Journal. 13 Office learned of Karpova's unauthorized trip from press 14 accounts. 15 16 C. Her writing took the The Foreign Assets Control Agency's Response 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. 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. 25 April 21, 2003 with a lengthy letter, which included the dates 26 and various reasons for her trip, but failed to provide a This "Requirement to Furnish 5 Plaintiff responded on 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. 21 Notice proposed a penalty of $10,000, and it gave Karpova an 22 opportunity to submit a written response. 23 requested that Karpova explain why the penalty should not be 24 issued or why, if issued, it should be reduced. The Prepenalty The Prepenalty Notice 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. 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. 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 The letter contended that She did not dispute that she 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. 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. 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 21 D. It The fine was The Instant Suit 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. 26 were themselves unlawful. She also claimed the Iraqi Sanctions Regulations 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. 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 9 10 On October DISCUSSION I Administrative Procedure Act Claims 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. 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. 19 'arbitrary and capricious' standard is narrow," and courts should 20 not substitute their judgment for that of the agency. 21 Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. 22 Co., 463 U.S. 29, 43 (1983). 23 will only be overturned when the agency 24 25 26 27 28 Supreme Oil Co. v. Metro. However, "[t]he scope of review under the Motor Instead, an agency determination has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the 8 1 2 3 4 5 Id. 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 11 agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. In other words, so long as the agency examines the relevant conclusion may reasonably be discerned. Id. 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. 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. 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 Instead, it referenced The Prepenalty Specifically, the Prepenalty Notice had accused her of the 23 six acts outlined a moment ago and had cited the applicable 24 regulations. 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. 28 accusation that Karpova had engaged in the transactions detailed But strikingly, in the first paragraph of the Instead, the Penalty Notice just cited the 9 1 in the Prepenalty Notice and ruled that "such transactions 2 violated the Iraqi Sanctions Regulations" (emphasis added). 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 As a 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. 14 capricious for the Foreign Assets Control Office to determine 15 that Karpova had engaged in these three transactions. 16 own letter indicated that she solicited small donations to help 17 finance her travel expenses to Iraq. 18 define the term "transaction," but it was not unreasonable for 19 the Agency to decide that solicitation of funds constitutes a 20 transaction. 21 replying to the Prepenalty Notice that she traveled to Iraq 22 during the winter of 2003. 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. It was not arbitrary and Karpova's The regulations do not Appellant admitted in addition in her letter Insofar as the purchase of food in 10 Plaintiff 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. 6 capricious for the Agency to rule Karpova had engaged in 7 transactions relating to travel in Iraq in violation of the 8 regulations. 9 the Administrative Procedure Act. Given the foregoing, it was not arbitrary and Thus, the Agency's action may not be faulted under 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. 14 for the transactions she engaged in, but also for the services 15 she provided. 16 imply that Karpova was punished for engaging in another type of 17 service as well -- serving as a freelance journalist. 18 then the Agency's determination was flawed. 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. 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. 26 it is unnecessary to consider whether the services provided by This indicates that perhaps Karpova was fined not only Further, the Prepenalty Notice could be read to If so, There is no However, we need not determine the exact contours of 11 See 31 C.F.R. § 575.701. Thus, 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. 7 the same conclusion absent any such error. 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 We are confident that the Agency would reach See, e.g., NLRB v. 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. 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. 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. 26 Agency did not provide much explanation on this issue; it merely 12 By way of background, Karpova's argument is that her Unfortunately, the 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). 11 within Iraq were excursions to "defend Iraqi civilian 12 infrastructure from bombing." 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 Karpova admits that among her activities Such activity clearly would not Appellant finally declares that the regulations themselves 18 exceeded the authority Congress gave to the President to limit 19 economic contact with Iraq. 20 rejected. 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. 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. This argument may be swiftly The regulations were promulgated to implement 13 See Exec. 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). 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. 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). 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. 23 court's dismissal of plaintiff's challenge to the authority for 24 the regulations should be affirmed. In addition, the Iraqi Sanctions Act of 1990 We We decline to second-guess the President's determination 14 The district 1 2 II Procedural Due Process Claim The district court granted the government summary judgment 3 with respect to Karpova's due process claim. 4 grant de novo, construing the facts in the light most favorable 5 to Karpova. 6 (2d Cir. 2006). 7 is no genuine issue as to any material fact, making judgment 8 appropriate as a matter of law. See Tocker v. Philip Morris Cos., 470 F.3d 481, 486 Summary judgment is only appropriate when there 9 10 We review that A. Id. at 486-87. Opportunity to be Heard 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. 13 Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). 14 opportunity to be heard must be "at a meaningful time and in a 15 meaningful manner." 16 (1976). 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. 20 90, 93 (2d Cir. 1993). 21 involved determine the kind of hearing necessary. 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. See Mullane v. Cent. The Mathews v. Eldridge, 424 U.S. 319, 333 However, the Due Process Clause does not necessarily See Interboro Inst., Inc. v. Foley, 985 F.2d The liberty interest and legal issues Id. 15 Id. 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. 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. 9 Mathews, 424 U.S. at 346. The Agency's procedural See, e.g., The Agency considered the legal 10 arguments in Karpova's written submissions and issued a ruling 11 against her. 12 testimonial hearing would have benefitted her. 13 genuine issue of material fact with regard to whether adequate 14 notice and an opportunity to be heard were provided to plaintiff. 15 16 17 18 B. Appellant has not identified in what way a Thus, there is no Did the Foreign Assets Control Office Act as Both Prosecutor and Judge? 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. 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 The Supreme Court has explained that 16 1 facts and circumstances of each particular situation in 2 determining whether the risk of unfairness is intolerably high. 3 Id. at 58. 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. 7 (2d Cir. 2004). 8 than the same person -- that performs multiple functions, due 9 process is not violated. 10 However, we have recognized that it presents a MFS Sec. Corp. v. SEC, 380 F.3d 611, 618 But here, when it is the same office -- rather Id. at 618-19. 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. 14 made the Agency's final ruling against Karpova in the March 14, 15 2005 Penalty Notice. 16 R. Richard Newcomb, while the Director on March 14, 2005 was 17 Robert W. Werner. 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 21 22 III The Director of the same office However, the Director on June 23, 2004 was Since the same individual did not perform Right to Travel and Free Speech Claims A. Standard of Review 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. 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 We 1 allegations contained in the complaint and drawing all inferences 2 in plaintiff's favor. 3 New York, 458 F.3d 150, 154 (2d Cir. 2006). 4 B. Global Network Commc'ns, Inc. v. City of 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. 13 Wald, 468 U.S. 222, 242 (1984). 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. See Regan v. The President, in an executive 18 1 2 C. Free Speech Claim 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). 5 explained, many restrictions on action could "be clothed by 6 ingenious argument in the garb of decreased data flow." 7 16-17. 8 Amendment guarantees a citizen the right to speak and publish, 9 but does not guarantee an unrestrained right to gather As the Zemel Court Id. at Yet such arguments are to no avail since the First 10 information. 11 actions in violating the travel regulations, not for her speech. 12 Consequently, her First Amendment rights were not violated. 13 14 Id. at 17. Karpova was fined because of her CONCLUSION Accordingly, for the foregoing reasons, the grant of summary 15 judgment by the district court dismissing Karpova's complaint is 16 affirmed. 19

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