82 F.3d 1431 (9th Cir. 1996), 95-15291, Freedom to Travel Campaign v. Newcomb

Docket Nº:95-15291.
Citation:82 F.3d 1431
Party Name:D.A.R. 4889 FREEDOM TO TRAVEL CAMPAIGN; Medea Benjamin; Pam Montanaro; Walter Turner, Plaintiffs-Appellants, and Christopher Gerhart; Ginny Hildebrand; James Hughes, Plaintiffs-Intervenors-Appellants, v. R. Richard NEWCOMB, Director of the U.S. Treasury Department's Office of Foreign Assets Control; Ronald Noble, Assistant Secretary of the Treasury
Case Date:April 29, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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82 F.3d 1431 (9th Cir. 1996)

D.A.R. 4889

FREEDOM TO TRAVEL CAMPAIGN; Medea Benjamin; Pam Montanaro;

Walter Turner, Plaintiffs-Appellants,


Christopher Gerhart; Ginny Hildebrand; James Hughes,



R. Richard NEWCOMB, Director of the U.S. Treasury

Department's Office of Foreign Assets Control; Ronald

Noble, Assistant Secretary of the Treasury for Enforcement;

Lloyd Bentsen, Secretary of the Treasury, Defendants-Appellees.

No. 95-15291.

United States Court of Appeals, Ninth Circuit

April 29, 1996

Argued and Submitted Sept. 11, 1995.

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[Copyrighted Material Omitted]

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Michael Krinsky, Rabinowitz, Boudin, Standard, Krisnky & Lieberman, New York City, for plaintiffs-appellants.

Mark B. Stern, United States Department of Justice, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California; Eugene F. Lynch, District Judge, Presiding.

Before: HALL, KOZINSKI, and HAWKINS, Circuit Judges.

Opinion by Judge HALL; concurrence by Judge KOZINSKI.


Freedom to Travel Campaign ("FTC") and other appellants challenge the constitutionality of certain restrictions imposed on travel to Cuba by the Cuban Assets Control Regulations, 31 C.F.R. Part 515 (1994). The district court denied FTC's motion for a preliminary injunction and granted the Treasury Department's motion for summary judgment upholding the regulations. The district court had jurisdiction to consider these claims under 28 U.S.C. § 1331, and we have jurisdiction under 28 U.S.C. § 1291. We affirm.


Plaintiff-appellant FTC organizes educational trips to Cuba. Intervenor-Appellants are three individuals wishing to visit Cuba with the Freedom to Travel Campaign. 1 FTC challenges the Cuban Asset Control

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Regulations which restrain its right to travel to Cuba. These regulations were promulgated shortly after President Kennedy announced the 1962 Cuban trade embargo that prohibited United States residents from engaging in certain enumerated economic transactions with Cuba without a license. See 31 C.F.R. Part 515 (1963).

The Regulations currently restrict travel to Cuba by banning nearly all economic transactions with Cuban nationals. 31 C.F.R. § 515.201(b) (1994). A small universe of persons can qualify for a general license partially exempting them from these restrictions. Id. at § 515.560(a) (covering journalists, government officials, and certain international organizations); id. at § 515.560(c) (allowing certain payments for transportation, lodging, and food). All other travelers, including tourists, must obtain a specific license from the Office of Foreign Assets Control. Id. at §§ 515.560(b), 515.801(b)(2). Regulation 560(b), as supplemented by Regulation 419, 2 provides that the Office of Foreign Assets Control "may" issue a license only upon a showing of "compelling need" to travel to Cuba for such specified reasons as "clearly defined educational ... activities." Id. at § 515.560(b); 60 Fed.Reg. at 54,196. Traveling to Cuba without a license is a criminal offense subject to imprisonment, fine, and property forfeiture. 31 C.F.R. § 515.701 (1994).

FTC wishes to travel to Cuba, but does not qualify for a general license under the Regulations. It has never applied for a specific license. Despite that, it has organized at least three trips to Cuba in which several hundred people took part and plans to conduct similar unlicensed trips in the future.

FTC originally moved for a preliminary injunction to enjoin the Treasury Department's ("Government's") enforcement of the Regulations. The Government cross-moved for summary judgment. The district court denied FTC's motion for a preliminary injunction and granted the Government summary judgment.

FTC presses four arguments on appeal: (1) that its claims are ripe despite its failure to apply for a specific license; (2) that Congress' delegation of authority to renew the Cuban embargo solely upon a determination that it is "in the national interest" is too broad; (3) that Regulation 560(b)'s license requirements for "educational" travel are facially vague under both the Fifth Amendment right to travel and the First Amendment; and (4) that the President's statutory authority conflicts with the United States' human rights treaty obligations. We affirm.


Questions of law underlying a denial of injunctive relief are reviewed de novo. Miller v. California Pacific Medical Center, 19 F.3d 449, 455 (9th Cir.1994) (en banc). Grants of summary judgment are also reviewed de novo. Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994).


The Government argues that we have no jurisdiction to hear FTC's claims because they are not ripe, since FTC never applied for and was therefore never denied a specific license under Regulation 560(b). If it had applied, the Government contends, it might have been granted a license and the suit would be dismissed. The district court agreed.

The ripeness of a claim is reviewed de novo. Gemtel Corp. v. Community Redevelopment Agency, 23 F.3d 1542, 1545 (9th Cir.1994). Whether a claim is ripe for adjudication depends on two factors: (1) whether the issue is fit for judicial decision and (2) whether the parties will suffer hardship if we decline to consider the issue. American-Arab Anti-Discrimination Comm. v. Thornburgh, 970 F.2d 501, 510 (9th Cir.1991). Legal questions that require little factual development are more likely to be ripe. Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 581, 105 S.Ct. 3325, 3333, 87 L.Ed.2d 409

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(1985). A threat of criminal penalty is considered hardship. San Francisco County Democratic Cent. Comm. v. Eu, 826 F.2d 814, 821 (9th Cir.1987), aff'd, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989).

Under this standard, FTC's claims are ripe. 3 The issues we decide now--whether Congress has delegated too much authority to the President under Trading With the Enemy Act of 1917 ("TWEA"), whether Regulation 560(b) can withstand a facial challenge under the Fifth and First Amendments, and whether the Regulations contradict an international treaty--are pure questions of law that require no factual development. The criminal penalties available under the Regulations, see 31 C.F.R. § 515.701, subject FTC to sufficient hardship. We see no reason to wait for FTC's application to first be rejected by Office of Foreign Asset Control. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 131, 112 S.Ct. 2395, 2402, 120 L.Ed.2d 101 (1992) (allowing facial First Amendment challenge to discretionary licensing scheme when plaintiff never applied for a permit); Chicago v. Atchison, Topeka & Santa Fe Ry., 357 U.S. 77, 89, 78 S.Ct. 1063, 1070, 2 L.Ed.2d 1174 (1958) (allowing motor carrier to facially challenge Chicago's motor licensing scheme without first applying for a license).

Nor does Reno v. Catholic Social Servs., Inc., 509 U.S. 43, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993), render FTC's claims unripe. In CSS, the Court held that only aliens who had applied for amnesty under the Immigration Reform and Control Act of 1986 could challenge the Act's provisions in federal court; 4 the claims of those who had not applied for amnesty were not ripe. Id. at 56-61, 113 S.Ct. at 2495-97. In reaching this holding, the Court drew a line in the sand between two types of administrative regulations. The first type, it observed, places the challenger in an "immediate dilemma": pay the cost to comply with the regulation, or suffer penalties for failure to comply. Id. at 56-59, 113 S.Ct. at 2495-96; see also American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1060 (9th Cir.1995) (noting CSS ' rule regarding "plac[ing] the applicant in the dilemma of paying a cost to comply or paying a penalty for noncompliance"). The second type of regulation imposes no penalty for noncompliance, but noncompliance nevertheless prevents the challenger from receiving a benefit. CSS, 509 U.S. at 58-59, 113 S.Ct. at 2496. In the Court's view, the dilemma present under the first type of regulation, in and of itself, rendered a challenger's claim ripe; a plaintiff attacking a benefit-conferring statute, however, would first have to apply for and be denied the benefit before having a ripe claim. Id. at 58-59, 113 S.Ct. at 2496. The Court concluded that IRCA's regulations conferred the benefit of amnesty, and that the plaintiffs' failure in that case to apply for amnesty was fatal to their action. Id. at 63-67, 113 S.Ct. at 2499-2500.

In a separate concurrence, Justice O'Connor parted company with the majority over its erection of a "categorical rule that would-be beneficiaries cannot challenge benefit-conferring regulations until they apply for benefits." Id. at 69, 113 S.Ct. at 2502 (O'Connor, J., concurring). She first observed that this rule flew in the face of Supreme Court precedent. Id. at 70, 113 S.Ct. at 2502 (citing EPA v. National Crushed Stone Ass'n., 449 U.S. 64, 101 S.Ct. 295, 66 L.Ed.2d 268 (1980); Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Dev. Comm'n, 461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983); United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081 (1956)). She further argued that the rule swept too broadly. While she acknowledged that a plaintiff challenging a benefit-conferring regulation would often be required to apply for and be denied the benefit before bringing

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suit, she did not believe this would always be the case:

If it is "inevitable" that the challenged rule will "operat[e]" to the plaintiff's disadvantage--if the court can make a firm...

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