John Doe v. Merrick Garland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN DOE, an individual, No. 20-56063
Plaintiff-Appellant, D.C. No.
2:20-cv-03434-
v. CJC-AGR
MERRICK B. GARLAND, Attorney
General; CHRISTOPHER A. WRAY, OPINION
official and personal capacity as
Director of the Federal Bureau of
Investigation; UNITED STATES
DEPARTMENT OF JUSTICE; FEDERAL
BUREAU OF INVESTIGATION,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted September 3, 2021
Pasadena, California
Filed November 9, 2021
2 DOE V. GARLAND
Before: Mark J. Bennett and Ryan D. Nelson, Circuit
Judges, and David A. Ezra, * District Judge.
Opinion by Judge Ezra
SUMMARY **
Civil Rights
The panel affirmed the district court’s dismissal for
failure to state a claim of an action alleging that the
continued online public availability of the government’s
press releases relating to Appellant’s guilty plea and
subsequent sentencing violated his statutory and
constitutional rights.
Between 2007 and 2011, the Department of Justice and
the Federal Bureau of Investigation issued press releases
disclosing Appellant’s role in the mortgage fraud crimes
with which he and his coconspirators were charged. The
press releases included Appellant’s name, age, and the
charges against him, as well as some limited employment
history. What Appellant takes issue with is not that these
notices were published in the first place, but that they remain
publicly available on both the DOJ and FBI websites to this
day.
*
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
DOE V. GARLAND 3
The panel held that Appellant’s Privacy Act claim was
barred by the Act’s two-year statute of limitations, which
begins to run when a cause of action arises. Citing Oja v.
U.S. Army Corps of Eng’rs, 440 F.3d 1122, 1130 (9th Cir.
2006), the panel held that, while information may be
repeatedly accessed long after publication, the “single
publication rule” provides that the statute of limitations runs
only from the date of original dissemination. The panel
rejected Appellant’s assertion that equitable tolling should
be applied to save the claim.
The panel held that Appellant failed to state a
constitutional right to privacy claim because the information
contained in the press releases did not implicate his privacy
rights under the Constitution; while individuals may have a
constitutional privacy interest in certain, highly sensitive
information, Appellant simply did not have such an interest
in the information at issue in this case.
Rejecting the Eighth Amendment cruel and unusual
punishment claim, the panel held that the district court
applied the correct test in determining whether the press
releases were punitive in purpose or effect and did not err by
denying Appellant the opportunity to amend his complaint.
As to Appellant’s claim brought under the Administrative
Procedure Act, the panel held that the claim was based on
the constitutional right to privacy claim, and any argument
to the contrary was forfeited. Finally, the district court did
not err by denying Appellant leave to amend his complaint
to reflect further fact development because the proposed
amendment would have been futile.
4 DOE V. GARLAND
COUNSEL
Richard G. Novak (argued), Law Offices of Richard G.
Novak, Pasadena, California; Donald Jay Ritt (argued) and
Tiffany W. Tai, Ritt Tai Thvedt & Hodges LLP, Pasadena,
California; for Plaintiff-Appellant.
Daniel A. Beck (argued), Assistant United States Attorney;
David M. Harris, Chief, Civil Division; Tracy L. Wilkison,
Acting United States Attorney; United States Attorney’s
Office, Los Angeles, California; for Defendants-Appellees.
OPINION
EZRA, District Judge:
Press releases describing federal convictions remain
archived but publicly available on government websites long
after initial publication. In this case, Appellant John Doe
alleges that government press releases relating to his guilty
plea and subsequent sentencing violate his statutory and
constitutional rights. The district court found, however, that
Appellant failed to state a claim for relief on any of the
grounds he asserted. We affirm.
BACKGROUND
In 2007, Appellant John Doe 1 (“Appellant”) was charged
with and pled guilty to several mortgage fraud related
crimes. Appellant’s prison sentence and supervised release
concluded in 2014 and 2017, respectively, and the district
1
Appellant is utilizing the pseudonym John Doe in the instant
litigation.
DOE V. GARLAND 5
court determined on December 2, 2019, that Appellant
satisfied his restitution obligations on or about October 24,
2012.
Between 2007 and 2011, the Department of Justice
(“DOJ”) and the Federal Bureau of Investigation (“FBI”)
issued press releases disclosing Appellant’s role in the
mortgage fraud crimes with which he and his coconspirators
were charged (“Press Releases” or the “Releases”). The
Releases include Appellant’s name, age, and the charges
against him, as well as some limited employment history.
What Appellant takes issue with is not that these notices
were published in the first place, but that they remain
publicly available on both the DOJ and FBI websites to this
day. In 2017, Appellant filed a motion in his criminal case
to compel the DOJ to remove public access to the Releases
(“Motion to Compel”). However, the Motion to Compel was
ultimately unsuccessful on jurisdictional grounds.
On April 13, 2020, Appellant filed the instant civil action
against Appellees the DOJ, the FBI, William P. Barr in his
official capacity as Attorney General of the United States
and in his personal capacity, and Christopher A. Wray in his
official capacity as Director of the FBI and in his personal
capacity (collectively “Appellees”). Appellant alleges the
Press Releases’ availability violates the Privacy Act,
separation of powers, his constitutional right to privacy, and
the Administrative Procedure Act (“APA”). Appellant also
alleges the “digital punishment” he has suffered as a result
of the Releases’ continued availability amounts to cruel and
unusual punishment under the Eighth Amendment.
The district court ultimately found Appellant failed to
state a claim on any of his grounds for relief and dismissed
the case pursuant to Federal Rule of Civil Procedure
12(b)(6). On appeal, Appellant contends the district court
6 DOE V. GARLAND
erred by dismissing each of his claims and by denying him
the opportunity to amend his complaint. This Court now
affirms.
STANDARD OF REVIEW
We review a district court’s dismissal for failure to state
a claim under Rule 12(b)(6) de novo. Puri v. Khalsa,
844 F.3d 1152, 1157 (9th Cir. 2017). In reviewing a district
court’s denial of leave to amend a complaint, we apply an
abuse of discretion standard. Gardner v. Martino, 563 F.3d
981, 990 (9th Cir. 2009).
DISCUSSION
We affirm the district court’s dismissal of Appellant’s
Privacy Act, constitutional right to privacy, separation of
powers, cruel and unusual punishment, and APA claims.
The Privacy Act claim is barred by the statute of limitations,
which was not equitably tolled. The press releases do not
implicate any constitutional right to privacy and are neither
punishment nor cruel and unusual. The APA claim is based
on the constitutional right to privacy claim, and any
argument to the contrary was forfeited. And finally,
Appellant’s proposed amendment would have been futile.
I. Privacy Act
The Privacy Act imposes a two year statute of
limitations, which begins to run when a cause of action
arises. 5 U.S.C. § 552a(g)(5). Even where information
violating the Act remains continuously available to the
public after initial publication, it can give rise to only one
cause of action. Oja v. U.S. Army Corps of Eng’rs, 440 F.3d
1122, 1130 (9th Cir. 2006). Thus, while information may be
repeatedly accessed long after publication, the “single
DOE V. GARLAND 7
publication rule” provides that the statute of limitations runs
only from the date of original dissemination. Id.Online information, like that at issue in this case, does
pose some Privacy Act challenges not shared by its printed
counterparts. However, this Court held in Oja that the single
publication rule nevertheless applies. Id. at 1133(acknowledging the unique characteristics of online media
but holding parallels to printed information necessitate
finding the single publication rule applicable to both).
Appellant’s emphasis on the continued availability of the
Press Releases is therefore misplaced; original
dissemination—not present availability—is the relevant
inquiry under Oja.
The most recent original dissemination in this case
occurred in 2011—more than eight years before Appellant
filed his Privacy Act claim. And it is clear from the record
that Appellant had actual knowledge of the Press Releases
for years. In fact, Appellant “expended significant effort” in
2017 to ascertain when the Releases would cease being
available to the public and even filed a Motion to Compel
the DOJ to eliminate public access to them. Yet, despite
Appellant’s apparent awareness of and dissatisfaction with
the Releases’ continued availability, he waited until April
2020 to file his Privacy Act claim.
Appellant argues, however, that no violation occurred
until the Press Releases became irrelevant or untimely within
the meaning of the Privacy Act. See 5 U.S.C.
§ 552a(g)(1)(C). In other words, Appellant admits the
Releases did not violate the Privacy Act when originally
posted, but contends they became irrelevant and untimely
when the district court found Appellant had made all his
restitution payments in December 2019. Were Appellant
8 DOE V. GARLAND
correct, his Privacy Act claim, filed just a few months later
in April 2020, would be timely.
Because his claim arose before 2019, we need not decide
in this case whether Appellant is correct that a special statute
of limitations rule applies to Privacy Act claims based on the
irrelevance or untimeliness of information. 2 Appellant
argues here that he was not “injured” by the Press Releases
until December 2019, but his argument is contradicted by his
own efforts to have them removed in 2017. In fact, in his
2017 Motion to Compel, Appellant alleged the very thing he
does in this case—that the DOJ’s failure to remove the
Releases amounted to a Privacy Act violation. Thus, while
Appellant now argues there was no Privacy Act violation
until December 2019, he argued the DOJ had already
violated his rights under the Act in a motion filed two years
earlier. Appellant’s own actions show that his claim arose
before 2019.
We reject Appellant’s argument that the press releases
became irrelevant and untimely as soon as the district court
declared he had satisfied his restitution obligations. Such a
holding would be especially arbitrary considering, according
to the order, Appellant actually made his final restitution
payment in 2012, not 2019.
Alternatively, Appellant argues equitable tolling should
be applied to save his untimely Privacy Act claim. However,
equitable tolling applies only if a litigant (1) has been
2
While we refrain from deciding the issue here, it is worth noting
that the rule Appellant proposes would result in “endless retriggering of
the statute of limitations, multiplicity of suits and harassment of
defendants”—the exact result this Court sought to avoid when it
extended application of the single publication rule to online information
in Oja. 440 F.3d at 1131–32 (quotations omitted).
DOE V. GARLAND 9
diligently pursuing his rights, and (2) failed to timely file
because some “extraordinary circumstance” stood in his
way. Menominee Indian Tribe of Wisc. v. United States,
577 U.S. 250, 255 (2016) (quoting Holland v. Florida,
560 U.S. 631, 649 (2010)). To satisfy the second element,
the litigant must show that the extraordinary circumstance
claimed made it impossible to file on time. Booth v. United
States, 914 F.3d 1199, 1207 (9th Cir. 2019). Even assuming
Appellant’s 2017 attempts to have the Press Releases
removed amounted to “diligently pursuing his rights” as
required by the first element, nothing stood in the way of
Appellant simultaneously filing his Privacy Act claim. In
fact, when asked during oral argument whether Appellant
could have filed his Privacy Act claim in 2017 (at or near the
same time as his Motion to Compel) Counsel for Appellant
admitted it would have been possible for him to do so.
Because Appellant’s Privacy Act claims were filed after
the statute of limitations had run and equitable tolling is
inapplicable, we affirm the district court’s dismissal of
Appellant’s Privacy Act claim.
II. Constitutional Right to Privacy
The “precise bounds” of the constitutional right to
privacy are uncertain. In re Crawford, 194 F.3d 954, 958
(9th Cir. 1999). The Constitution protects certain conduct
related to “marriage, procreation, contraception, family
relationships, and child rearing and education.” Paul v.
Davis, 424 U.S. 693, 713 (1976). However, in Whalen v.
Roe, 429 U.S. 589 (1977), the Supreme Court also identified
the somewhat elusive interest in “avoiding disclosure of
personal matters” as a privacy interest protected by the
10 DOE V. GARLAND
Constitution.3 Id. at 599. Here, Appellant argues Appellees
have violated his right to the latter, and that the district court
erred by holding there is no informational right to privacy.
This is not, however, what the district court held. Rather, the
district court held Appellant did not have a privacy interest
in the type of information disclosed in the Press Releases.
We affirm.
As explained in the district court’s dismissal order, the
Supreme Court held in Davis that government disclosure of
an “official act such as an arrest” does not implicate the
constitutional right to privacy. 424 U.S. at 713. Since Davis,
circuit courts have found other similar disclosures
constitutional as well. See, e.g., Eagle v. Morgan, 88 F.3d
620, 626–27 (8th Cir. 1996) (finding no legitimate
expectation of privacy in the details of a prior guilty plea, as
such matters are, by their very nature, within the public
domain); Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir.
1995) (“[G]overnment disclosures of arrest records, judicial
proceedings, and information contained in police reports do
not implicate the right to privacy.” (citations omitted)); see
also Nunez v. Pachman, 578 F.3d 228, 231 (3d Cir. 2009)
(holding expunged criminal record disclosure
constitutional).
While analogous to the examples of other non-private
information above, the information disclosed in this case is
easily distinguished from what this Court has found may
3
While the Supreme Court acknowledged the existence of an
“informational” privacy right in Whalen, 429 U.S. at 599, and Nixon v.
Administrator of General Services, 433 U.S. 425, 457 (1977), the Court
merely assumed without deciding that such a right is protected by the
Constitution in National Aeronautics and Space Administration v.
Nelson, 562 U.S. 134, 138 (2011).
DOE V. GARLAND 11
implicate a constitutional right to privacy. For example, in
Tucson Woman’s Clinic v. Eden, 379 F.3d 531 (9th Cir.
2004), this Court held a statutory provision requiring
abortion providers to disclose unredacted medical records—
including full medical histories—and ultrasound prints with
patient identifying information violated patients’
informational right to privacy. Id. at 552–53. The Court has
also acknowledged the “indiscriminate public disclosure” of
social security numbers “may implicate the constitutional
right to informational privacy.” Crawford, 194 F.3d at 958,
960 (emphasis added) (finding no constitutional violation
despite SSN disclosure).
While individuals may have a constitutional privacy
interest in certain, highly sensitive information, 4 Appellant
simply does not have such an interest in the information at
issue in this case. Tellingly, Appellant never challenged the
constitutionality of the Press Releases at the time they were
published. And he cites no authority supporting his claim
that a press release, after being available for years, can
somehow transform into an unconstitutional disclosure
simply because it is now “stale.”
The only authority Appellant does cite in support of this
position relates to Freedom of Information Act (“FOIA”)
privacy exemptions, not a constitutional right to privacy.
See U.S. Dep’t of Justice v. Reporters Comm. for Freedom of
the Press, 489 U.S. 749 (1989) (considering extent to which
FOIA Exemption 7(C) prevents disclosure of expansive law
enforcement records about a private citizen); Am. Civil
Liberties Union v. U.S. Dep’t of Justice, 655 F.3d 1 (D.C. Cir.
2011) (considering extent to which FOIA Exemption 7(C)
4
In Tucson Woman’s Clinic, we characterized patient identifying
ultrasound prints as “very sensitive” information. 379 F.3d at 553.
12 DOE V. GARLAND
prevents disclosure of docket numbers, case names, and
presiding courts). Such authority is not helpful to
Appellant—“[t]he question of the statutory meaning of
privacy under the FOIA is, of course, not the same as the
question whether . . . an individual’s interest in privacy is
protected by the Constitution.” Reporters Comm., 489 U.S.
at 762 n.13.
Appellant has failed to state a constitutional privacy right
claim because the information contained in the Press
Releases does not implicate his privacy rights under the
Constitution. Accordingly, the district court’s dismissal is
affirmed.
III. Cruel and Unusual Punishment and Separation of
Powers
For Appellant to succeed on his cruel and unusual
punishment claim, the Press Releases, by remaining
available, must amount to criminal punishment. See Wilson
v. Seiter, 501 U.S. 294, 300 (1991) (“[T]he Eighth
Amendment . . . bans only cruel and unusual punishment.”).
Similarly, Appellant’s separation of powers claim relies on
his contention that the executive branch is punishing him by
maintaining the Releases.
The district court found Appellees did not post the Press
Releases with the intent to punish, and Appellant does not
challenge that finding. Rather, Appellant takes issue with
the district court’s holding that the Releases are not punitive
in effect. Specifically, Appellant argues the district court
(1) applied the wrong test in deciding the punitive effect
question, and (2) should have permitted further fact
development or allowed him to amend his complaint before
concluding the Press Releases were nonpunitive. We find
the district court did not err on either of the grounds
DOE V. GARLAND 13
Appellant asserts because his claims are foreclosed by the
Supreme Court’s holding in Smith v. Doe, 538 U.S. 84(2003). Although Smith considered only the Ex Post Facto
Clause, courts employ its test for punishment in the Eighth
Amendment context. See, e.g., Millard v. Camper, 971 F.3d
1174, 1181–84 (10th Cir. 2020); Does 1–7 v. Abbott,
945 F.3d 307, 313–15 & n.9 (5th Cir. 2019); United States
v. Under Seal, 709 F.3d 257, 263–66 (4th Cir. 2013).
In Smith, the Supreme Court held that the maintenance
of an online sex offender registration and notification system
was nonpunitive. Id. at 105. According to the Smith Court,
the initial inquiry is whether the government’s objective in
implementing the allegedly punitive mechanism was to
punish. Id. at 92. If intended to punish, the mechanism is
punitive. Id. at 92. But if the government intended to
advance a nonpunitive objective, the question becomes
whether the government action was so punitive in effect that
it amounts to punishment despite a lack of punitive intent.
Id. at 92. The Smith Court cautioned, however, that because
intent to impose a nonpunitive mechanism is ordinarily
afforded deference, “only the clearest proof” will transform
what was intended to be nonpunitive into a criminal penalty.
Id. at 92 (citation omitted). The Court then identified a
number of “useful guideposts” for analyzing the potentially
punitive effects of government action. Id. at 97 (citation
omitted).
The factors especially relevant here are whether the
mechanism at issue (1) is “regarded in our history and
traditions as a punishment;” (2) “imposes an affirmative
disability or restraint;” (3) “promotes the traditional aims of
punishment;” (4) has a rational connection to a nonpunitive
14 DOE V. GARLAND
purpose;” or (5) “is excessive with respect to this purpose.” 5
Id.
The Smith outcome itself shows that Appellees’ Press
Releases are not punitive government action in the
traditional sense. In Smith, the Court found a sex offender
registry nonpunitive even though it—like the press releases
in this case—made offense details publicly available long
after criminal punishment concluded. Id. at 91. The press
releases Appellant complains of are analogous to the registry
considered in Smith, and the ways they are distinguishable
mostly hurt rather than help him. For example, the registry
at issue in Smith disclosed not only an offender’s conviction
details, but also his “address, photograph, physical
description, . . . place of employment, date of birth,” and
detailed vehicle information. Id. at 91 (citation omitted).
The Court nevertheless found the registry was nonpunitive.
Id. at 105. Additionally, failing to provide updated
information for the registry in Smith led to the possibility of
criminal prosecution, something Appellant does not face
here. Id. at 101–02.
Also similar to the registry in Smith, the Press Releases
do not impose an affirmative disability or restraint because
Appellant is permitted to move freely and to “live and work
as other citizens, with no supervision.” Id. at 101 (finding
no affirmative disability or restraint even where sex
5
While there are two additional factors, they both relate to what
circumstances or behaviors trigger application of the challenged
government action. Because Appellant merely challenges the passive
maintenance of archived press releases in this case, the remaining two
factors are of little weight. Smith, 538 U.S. at 105.
DOE V. GARLAND 15
offenders were required to notify authorities after growing a
beard, borrowing a car, or seeking psychiatric treatment).
Third, the Press Releases do not advance the traditional
aims of punishment. According to Appellees, release of
information is intended to “administer justice and promote
public safety[,]” as well as to serve “the right of the public
to have access to information about the [DOJ].” It is true
that deterrence is one purpose of punishment. But “[a]ny
number of governmental programs might deter crime
without imposing punishment.” Id. at 102 (“To hold that the
mere presence of a deterrent purpose renders such sanctions
‘criminal’ . . . would severely undermine the Government’s
ability to engage in effective regulation.” (quoting Hudson,
522 U.S. at 105)).
As to the fourth factor, the Smith Court found that public
safety—one of the purposes advanced by the sex offender
registry—was both legitimate and nonpunitive. Id. at 102–
03. According to the Court, the registry advanced public
safety by “alerting the public to the risk of sex offenders in
their community.” Id. at 103 (quotations omitted).
Similarly, the press releases at issue in this case foster public
safety 6 and system transparency—both purposes the
Supreme Court deemed legitimate and nonpunitive in Smith.
Id. at 99, 102–03. Thus, the fourth factor also weighs in
favor of finding the Releases are nonpunitive in effect.
Finally, the Releases are not excessive with respect to
their nonpunitive purpose—they highlight only “accurate
information about a criminal record,” most (if not all) of
which is already public. Id. at 98–99 (noting that “our
6
As the district court noted, the Press Releases may “alert the public
to the risk of doing business with someone convicted of mortgage fraud.”
16 DOE V. GARLAND
criminal law tradition insists on public indictment, public
trial, and public imposition of sentence”).
Because the Press Releases’ continued availability is not
punishment at all, it cannot amount to cruel and unusual
punishment under the Eighth Amendment. However, even
if we found Appellant was being punished, that punishment
would not be the type of government action forbidden by the
Eighth Amendment. See Wilson, 501 U.S. at 298 (“[O]nly
those deprivations denying the minimal civilized measure of
life’s necessities are sufficiently grave to form the basis of
an Eighth Amendment violation.” (citations and quotations
omitted)). Appellees’ continued publication of truthful
information about Appellant’s guilty plea simply does not
rise to that level.
The district court applied the correct test for determining
whether the Press Releases were punitive in purpose or
effect. Further, we hold the district court did not err by
denying Appellant the opportunity to amend his complaint.
While Appellant argues the expert declaration of Professor
Langeson establishes Appellant suffers from “affirmative
disability or restraint” as a result of the Releases’ continued
availability, this argument is foreclosed by caselaw.
Specifically, because Appellees’ action “imposes no
physical restraint, . . . [it] does not resemble the punishment
of imprisonment, which is the paradigmatic affirmative
disability or restraint.” Smith, 538 U.S. at 100.
IV. Administrative Procedure Act
Appellant’s APA claim is based on alleged violations of
his constitutional right to privacy. Because the district court
found Appellant had failed to state a constitutional right to
privacy claim, it found the APA claim must also be
dismissed. Similarly, because we affirm the district court’s
DOE V. GARLAND 17
holding that Appellant failed to state a constitutional right to
privacy claim, we also affirm on this issue.
While Appellant now argues for the first time on appeal
that his APA claim was not based solely on his constitutional
privacy claim, he never advanced such an argument before
the district court in either his complaint or response to
Appellee’s motion to dismiss. Thus, he has forfeited his
argument that his APA claim is based on anything other than
alleged constitutional right to privacy violations. See
Momox-Caselis v. Donohue, 987 F.3d 835, 841 (9th Cir.
2021) (“Generally, we do not consider arguments raised for
the first time on appeal.”); Smith v. Marsh, 194 F.3d 1045,
1052 (9th Cir. 1999).
V. Leave to Amend
“A district court acts within its discretion to deny leave
to amend when amendment would be futile . . . .” Chappel
v. Lab. Corp. of Am., 232 F.3d 719, 725–26 (9th Cir. 2000).
Appellant claims he should have been permitted to amend
his complaint to reflect further fact development, including
conclusions from Professor Langeson’s declaration.
However, as explained above, such amendment would not
have saved his claim from dismissal. Therefore, because the
proposed amendment would have been futile, the district
court did not abuse its discretion by denying Appellant leave
to amend.
AFFIRMED.