Karpova v. Snow

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

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_______________ 1
2
3 MICHAEL H. SUSSMAN, Law Offices of Michael H. Sussman, Goshen, 4 New York, for Plaintiff-Appellant. 5
6 ROSS E. MORRISON, Assistant United States Attorney, New York, New 7 York (Michael J. Garcia, United States Attorney, Sara L. 8 Shudofsky, Assistant United States Attorney, Southern 9 District of New York, New York, New York, of counsel), for 10 Defendants-Appellees. 11
12 _______________ 13

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2
CARDAMONE, Circuit Judge: 1
Plaintiff Judith Karpova (plaintiff or appellant), a 2
resident of New York State and an American citizen, traveled to 3
Iraq in 2003. Purporting to belong to a group known as the 4
Truth, Justice, and Peace Human Shield Action Project (Project), 5
whose aim was to deter the bombing of civilian infrastructure 6
facilities by acting as human shields at such sites in that 7
country, plaintiff claims she went to Iraq in three capacities: 8
as an ordained minister to bear witness to the effect on Iraq's 9
people of economic sanctions, as a professional writer and 10
journalist sending letters or reports to the Jersey Journal, a 11
daily newspaper in Jersey City, New Jersey, and as a human shield 12
to prevent destruction of civilian infrastructure in the event of 13
renewed hostilities. Unfortunately, in doing this and despite 14
her good intentions, plaintiff transgressed several executive 15
orders and United States Treasury Department regulations that 16
governed what interactions United States citizens could have with 17
Iraq while economic sanctions were in place. 18
Because plaintiff violated those orders and regulations, the 19
Office of Foreign Assets Control within the United States 20
Department of the Treasury (Foreign Assets Control Office or 21
Agency) assessed against her a civil monetary penalty of $6,700. 22
To set aside this fine, plaintiff brought suit against the 23
government in the United States District Court for the Southern 24
District of New York (McMahon, J.). In her complaint plaintiff 25
alleged that her First and Fifth Amendment rights were violated 26

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3
and that the government had engaged in final agency action 1
against her in an unlawful manner. Judge McMahon granted summary 2
judgment in favor of the government, dismissing plaintiff's 3
complaint in a judgment entered October 31, 2005. From that 4
judgment Karpova appeals. 5
BACKGROUND 6
A. Statutory and Regulatory Background 7
In 1990 Congress passed the Iraqi Sanctions Act, which among 8
other things, directed the President to "continue to impose the 9
trade embargo and other economic sanctions with respect to Iraq." 10
Pub. L. No. 101-513, § 586C(a), 104 Stat. 1979, 2048 (1990). 11
President Bush issued executive orders premised on the notion 12
that Iraqi government policies constituted an unusual and 13
extraordinary threat to the national security of the United 14
States, directing that economic sanctions be imposed on Iraq and 15
authorizing the Secretary of the Treasury to promulgate 16
regulations implementing prohibitions on, among other things, the 17
exportation of services to Iraq and transactions related to 18
travel to Iraq. Exec. Order No. 12,722, 55 Fed. Reg. 31,803 19
(Aug. 2, 1990); Exec. Order No. 12,724, 55 Fed. Reg. 33,089 (Aug. 20
9, 1990). On January 18, 1991 the Foreign Assets Control Office 21
of the United States Treasury Department issued the Iraqi 22
Sanctions Regulations (regulations) implementing the prohibitions 23
outlined in the President's executive orders and outlining 24
procedures for dealing with violations. See 31 C.F.R. 25
§§ 575.204-211, 575.702-704. 26

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4
Under these regulations, the Foreign Assets Control Office 1
may demand that people engaging in transactions related to Iraq 2
provide it with complete information relative to those 3
transactions. See 31 C.F.R. § 501.602. When the Agency has a 4
reasonable belief that a violation of the regulations has 5
occurred, it issues a Prepenalty Notice. 31 C.F.R. § 575.702. 6
The Prepenalty Notice informs the alleged violator that a 7
monetary penalty will be imposed unless he or she responds in 8
writing explaining why a penalty is inappropriate. Id. If the 9
recipient replies in such a manner, the Director of the Foreign 10
Assets Control Office then makes a final determination as to 11
whether a violation has occurred and, if so, what financial 12
penalty should be imposed. Such final determination is set forth 13
in a Penalty Notice. 31 C.F.R. § 575.704. 14
B. Karpova Travels to Iraq 15
In early 2003 the Project hoped to bring attention to the 16
fact that the United States allegedly had bombed civilian 17
infrastructure in Iraq during the 1990 Gulf War. The method the 18
Project chose to get public attention was to send non-Iraqis to 19
these sites to act as human shields. The presence of civilians 20
at the sites, it was hoped, would publicize the threat to them 21
were the United States to begin a bombing campaign, and perhaps 22
deter the United States from acting. Plaintiff Karpova joined 23
this group and sent a letter to supporters indicating her plans 24
to travel to Iraq in February 2003 as a member of the Project. 25
She requested supporters to send small donations to help finance 26

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5
her travel expenses. On February 19, 2003 she arrived in Iraq 1
and remained there until March 9. Karpova did not obtain a 2
license that might have authorized her, despite the economic 3
sanctions, to engage in travel-related transactions involving 4
Iraq. While there, plaintiff acted as a preemptive human shield. 5
Although Karpova left the country before the United States' 6
bombing campaign actually began, appellant was near an oil 7
refinery while in Iraq. Karpova also went on guided tours in 8
Basra and Baghdad, visited hospitals and schools, and spent time 9
"looking, listening, talking, and writing." Her writing took the 10
form of four letters sent back to America that were printed in 11
installments by the Jersey Journal. The Foreign Assets Control 12
Office learned of Karpova's unauthorized trip from press 13
accounts. 14
C. Agency's Response 15
On March 20, 2003 the Foreign Assets Control Office sent a 16
letter to plaintiff requiring that she provide the Department of 17
the Treasury with a detailed written report concerning her trip 18
to Iraq, so that it could ascertain whether she had violated the 19
Iraqi Sanctions Regulations. This "Requirement to Furnish 20
Information" specifically required Karpova to provide the dates 21
of her travel to Iraq, reason for her trip, and a detailed 22
itemization of all travel-related transactions in which she 23
engaged in connection with her trip. Plaintiff responded on 24
April 21, 2003 with a lengthy letter, which included the dates 25
and various reasons for her trip, but failed to provide a 26

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detailed itemization of all travel-related transactions. 1
Instead, she simply asserted that all of her travel-related 2
transactions were taken care of by an organization called the 3
Peace, Friendship, and Solidarity Organization, and thus that she 4
was not required to spend any money during her 19 days in Iraq. 5
Plaintiff did not provide any proof to support her 6
statements despite the Agency's request that she provide a copy 7
of any travel-related receipts or records associated with her 8
expenditures in Iraq. The Agency replied on June 23, 2004 by 9
sending Karpova a Prepenalty Notice stating she had violated the 10
Iraqi Sanctions Regulations by exporting her services to Iraq and 11
engaging in unauthorized travel-related transactions while there. 12
The Prepenalty Notice cited the following specific violations: 13
(1) attempting to collect funds for travel expenses to/from/ 14
within Iraq, (2) departing Jordan for Iraq and arriving in Iraq, 15
(3) providing ministerial services, (4) serving as a freelance 16
journalist, (5) providing services to the government of Iraq by 17
shielding Iraqi government infrastructure from possible United 18
States military action, and (6) engaging in travel-related 19
transactions, including the purchase of food. The Prepenalty 20
Notice proposed a penalty of $10,000, and it gave Karpova an 21
opportunity to submit a written response. The Prepenalty Notice 22
requested that Karpova explain why the penalty should not be 23
issued or why, if issued, it should be reduced. 24
Karpova answered this request on August 5, 2004 with a 25
letter from her lawyer arguing that she had not provided services 26

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7
to any agency of the Iraqi government. The letter contended that 1
the regulatory scheme under the Iraqi Sanctions Regulations 2
violated Karpova's due process rights and exceeded the authority 3
of the Executive branch, and that the penalty violated Karpova's 4
First and Fifth Amendment rights. She did not dispute that she 5
had engaged in transactions related to travel in Iraq, but she 6
incorporated by reference her previous letter as something for 7
the Foreign Assets Control Office to consider in determining the 8
appropriate penalty. 9
On March 14, 2005 the Agency sent Karpova a Penalty Notice. 10
The Penalty Notice ruled that she had violated the Iraqi 11
Sanctions Regulations by engaging in prohibited transactions 12
relating to Iraq, as detailed in the Prepenalty Notice. It 13
explained that Karpova's response had not presented any new facts 14
or explanations to refute the Foreign Assets Control Office's 15
charges that Karpova violated the regulations. The fine was 16
reduced from $10,000 to $6,700 in light of the fact that 17
plaintiff had provided a written response to the Prepenalty 18
Notice and because it was her first offense. 19
D. The Instant Suit 20
On June 9, 2005 plaintiff brought the instant suit alleging 21
that the fine imposed against her for her travel to Iraq was 22
arbitrary and capricious in violation of the Administrative 23
Procedure Act and unconstitutional under the First and Fifth 24
Amendments. She also claimed the Iraqi Sanctions Regulations 25
were themselves unlawful. Karpova requested the district court 26

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declare the Penalty Notice and 31 C.F.R. § 575.207 (prohibited 1
transactions relating to Iraq) null and void and sought a 2
permanent injunction preventing the United States from blocking 3
or restricting her First and Fifth Amendment rights. On October 4
25, 2005 the district court granted summary judgment in favor of 5
the government and dismissed Karpova's complaint in its entirety. 6
This appeal followed. 7
DISCUSSION 8
I Administrative Procedure Act Claims 9
On appeal from a grant of summary judgment involving a claim 10
brought under the Administrative Procedure Act, we review the 11
administrative record de novo without according deference to the 12
decision of the district court. Supreme Oil Co. v. Metro. 13
Transp. Auth., 157 F.3d 148, 151 (2d Cir. 1998) (per curiam). 14
Under 5 U.S.C. § 706(2)(A) a reviewing court must hold unlawful 15
and set aside any agency action found to be arbitrary, 16
capricious, an abuse of discretion, or otherwise not in 17
accordance with law. However, "[t]he scope of review under the 18
'arbitrary and capricious' standard is narrow," and courts should 19
not substitute their judgment for that of the agency. Motor 20
Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. 21
Co., 463 U.S. 29, 43 (1983). Instead, an agency determination 22
will only be overturned when the agency 23
has relied on factors which Congress has not 24 intended it to consider, entirely failed to 25 consider an important aspect of the problem, 26 offered an explanation for its decision that 27 runs counter to the evidence before the 28

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agency, or is so implausible that it could 1 not be ascribed to a difference in view or 2 the product of agency expertise. 3
4 Id. In other words, so long as the agency examines the relevant 5
data and has set out a satisfactory explanation including a 6
rational connection between the facts found and the choice made, 7
a reviewing court will uphold the agency action, even a decision 8
that is not perfectly clear, provided the agency's path to its 9
conclusion may reasonably be discerned. Id. 10
The Penalty Notice was far from clear. It did not 11
explicitly set forth the basis for its determination that Karpova 12
violated the Iraqi Sanctions Regulations. Instead, it referenced 13
the fact that the Prepenalty Notice had accused her of engaging 14
in certain prohibited transactions relating to Iraq and found 15
that such transactions violated the regulations. The Prepenalty 16
Notice had listed a number of different violations of the 17
regulations assertedly committed by Karpova and accused appellant 18
of "exportation of services to Iraq" in violation of 31 C.F.R. 19
§ 575.205 and of "unauthorized travel-related transactions in 20
Iraq" in violation of 31 C.F.R. § 575.207. 21
Specifically, the Prepenalty Notice had accused her of the 22
six acts outlined a moment ago and had cited the applicable 23
regulations. But strikingly, in the first paragraph of the 24
Penalty Notice, where the charge against Karpova and the Agency's 25
ruling are listed, there is no mention of plaintiff providing 26
services to Iraq. Instead, the Penalty Notice just cited the 27
accusation that Karpova had engaged in the transactions detailed 28

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10
in the Prepenalty Notice and ruled that "such transactions 1
violated the Iraqi Sanctions Regulations" (emphasis added). As a 2
consequence, in determining whether the regulations were applied 3
in an arbitrary and capricious manner, we look at whether the 4
transactions listed in the Prepenalty Notice were sufficient to 5
support the Agency's determination that Karpova violated 6
§ 575.207 by "engag[ing] in any transaction relating to travel by 7
any U.S. citizen . . . to Iraq." 8
We turn first to the specific allegations against appellant. 9
The three transactions Karpova was accused of were: (1) 10
attempting to collect funds for travel expenses to/from/within 11
Iraq, (2) departing Jordan for Iraq and arriving in Iraq, and (6) 12
purchasing food while in Iraq. It was not arbitrary and 13
capricious for the Foreign Assets Control Office to determine 14
that Karpova had engaged in these three transactions. Karpova's 15
own letter indicated that she solicited small donations to help 16
finance her travel expenses to Iraq. The regulations do not 17
define the term "transaction," but it was not unreasonable for 18
the Agency to decide that solicitation of funds constitutes a 19
transaction. Appellant admitted in addition in her letter 20
replying to the Prepenalty Notice that she traveled to Iraq 21
during the winter of 2003. Insofar as the purchase of food in 22
Iraq is concerned, appellant conceded in an article she submitted 23
to the Jersey Journal that although she was not paying for living 24
expenses during her first week in Iraq, she expected her group 25
would start paying its way once they got organized. Plaintiff 26

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subsequently maintained she was not required to spend any money 1
in Iraq, but she did not adduce any proof to support that 2
assertion despite the demand that she provide a detailed 3
itemization of all travel-related transactions backed by 4
pertinent records. Given the foregoing, it was not arbitrary and 5
capricious for the Agency to rule Karpova had engaged in 6
transactions relating to travel in Iraq in violation of the 7
regulations. Thus, the Agency's action may not be faulted under 8
the Administrative Procedure Act. 9
We note next that the Penalty Notice also mentioned that 10
appellant had provided a service to the government of Iraq by 11
shielding the oil refinery from possible United States military 12
action. This indicates that perhaps Karpova was fined not only 13
for the transactions she engaged in, but also for the services 14
she provided. Further, the Prepenalty Notice could be read to 15
imply that Karpova was punished for engaging in another type of 16
service as well -- serving as a freelance journalist. If so, 17
then the Agency's determination was flawed. There is no 18
indication in the record that she sought to render this service 19
to the Iraqi government, and so the Agency would have acted 20
arbitrarily and capriciously had it punished her for this 21
activity. However, we need not determine the exact contours of 22
the conduct for which appellant was fined, since the Foreign 23
Assets Control Office could have fined her $6,700 for committing 24
any one of the six alleged acts. See 31 C.F.R. § 575.701. Thus, 25
it is unnecessary to consider whether the services provided by 26

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appellant to Iraq could have served as an alternative basis for 1
this penalty. 2
Even if we were to conclude the Agency alternatively based 3
the fine on one or more of the alleged services provided by 4
Karpova, and find such alternative grounds were flawed, remand is 5
not required here. We are confident that the Agency would reach 6
the same conclusion absent any such error. See, e.g., NLRB v. 7
Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969) (not requiring 8
remand where it serves as an "idle and useless formality"); NLRB 9
v. Am. Geri-Care, Inc., 697 F.2d 56, 64 (2d Cir. 1982) (stating 10
that remand is required "only where there is a significant chance 11
that but for the error, the agency might have reached a different 12
result"). 13
Similarly, even if plaintiff is correct that some of the 14
transactions she engaged in in Iraq related to journalistic 15
activities and thus were exempted from sanction by § 575.207, 16
remand on that basis would be futile. By way of background, 17
§ 575.207 provides that transactions "[r]elating to journalistic 18
activity by persons regularly employed in such capacity by a 19
newsgathering organization" are not sanctionable, and 20
§ 575.416(b)(1) clarifies that certain freelance journalists are 21
covered by § 575.207's exemption. Karpova's argument is that her 22
solicitation of funds, her travel to Iraq, and her purchase of 23
food all related to her freelance journalistic activity, and thus 24
were not sanctionable under the regulations. Unfortunately, the 25
Agency did not provide much explanation on this issue; it merely 26

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noted in the Prepenalty Notice that Karpova acted as a freelance 1
journalist while in Iraq, but failed to address in its final 2
decision whether she qualified as a journalist under § 575.416 3
and whether these transactions were covered by this exception. 4
Yet, plaintiff overlooks § 575.416(c), which notes that 5
"[a]uthorized travel transactions are limited to those incident 6
to travel for the purpose of collecting and disseminating 7
information for a recognized newsgathering organization, and do 8
not include travel transactions related to any other activity in 9
Iraq" (emphasis added). Karpova admits that among her activities 10
within Iraq were excursions to "defend Iraqi civilian 11
infrastructure from bombing." Such activity clearly would not 12
fall within the journalistic exception, and thus we are confident 13
the Agency would reach the same conclusion even were we to 14
determine that some of Karpova's activities in Iraq were exempted 15
by the journalistic exception. 16
Appellant finally declares that the regulations themselves 17
exceeded the authority Congress gave to the President to limit 18
economic contact with Iraq. This argument may be swiftly 19
rejected. The regulations were promulgated to implement 20
executive orders which were issued under the authority granted to 21
the President by both the International Emergency Economic Powers 22
Act, 50 U.S.C. § 1701 et seq. and the United Nations 23
Participation Act (UNPA), 22 U.S.C. § 287 et seq. See Exec. 24
Order No. 12,722, 55 Fed. Reg. 31,803 (Aug. 2, 1990); Exec. Order 25
No. 12,724, 55 Fed. Reg. 33,089 (Aug. 9, 1990); see also Sacks v. 26

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Office of Foreign Assets Control, 466 F.3d 764, 775-77 (9th Cir. 1
2006); Office of Foreign Assets Control v. Voices in Wilderness, 2
329 F. Supp. 2d 71, 78 (D.D.C. 2004) (finding authority solely 3
under the UNPA). In addition, the Iraqi Sanctions Act of 1990 4
directed the President to "continue to impose the trade embargo 5
and other economic sanctions with respect to Iraq and Kuwait that 6
the United States is imposing . . . pursuant to Executive Order[] 7
Numbered 12724 . . . , and, to the extent [it is] still in 8
effect, Executive Order[] Numbered 12722 . . . ." Pub. L. No. 9
101-513, § 586C(a), 104 Stat. 1979, 2048 (1990). To the extent 10
that appellant asserts that there was not a "legal predicate for 11
imposition and extension of the economic sanctions" because there 12
had been no finding that the Iraqi regime posed "an urgent threat 13
to the security of the United States in 2003[]," we note that in 14
deciding to impose sanctions the President was acting in the area 15
of foreign policy pursuant to congressional authorization. We 16
review with great deference such executive branch determinations. 17
Palestine Info. Office v. Schultz, 853 F.2d 932, 937 (D.C. Cir. 18
1988). We decline to second-guess the President's determination 19
that the Iraqi regime posed an urgent threat to the United States 20
such that he could punish those who violated the economic and 21
travel restrictions pursuant to the regulations. The district 22
court's dismissal of plaintiff's challenge to the authority for 23
the regulations should be affirmed. 24

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II Procedural Due Process Claim 1
The district court granted the government summary judgment 2
with respect to Karpova's due process claim. We review that 3
grant de novo, construing the facts in the light most favorable 4
to Karpova. See Tocker v. Philip Morris Cos., 470 F.3d 481, 486 5
(2d Cir. 2006). Summary judgment is only appropriate when there 6
is no genuine issue as to any material fact, making judgment 7
appropriate as a matter of law. Id. at 486-87. 8
A. Opportunity to be Heard 9
Under the Fifth Amendment's Due Process Clause no person may 10
be deprived of life, liberty, or property without reasonable 11
notice and an opportunity to be heard. See Mullane v. Cent. 12
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). The 13
opportunity to be heard must be "at a meaningful time and in a 14
meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333 15
(1976). However, the Due Process Clause does not necessarily 16
require that a person be given an opportunity to be heard orally 17
in a testimonial setting; the opportunity for written submissions 18
may be sufficient. See Interboro Inst., Inc. v. Foley, 985 F.2d 19
90, 93 (2d Cir. 1993). The liberty interest and legal issues 20
involved determine the kind of hearing necessary. Id. 21
Therefore, in this context so long as those that are to decide 22
have before them claimant's legal arguments and do not act on a 23
one-sided or incomplete record, the Due Process Clause is 24
satisfied. Id. 25

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16
There is no dispute that appellant was given notice before 1
she was fined. The key question is whether the opportunity she 2
was given to be heard was sufficient. The Agency's procedural 3
safeguards guaranteed that prior to fining Karpova, the Foreign 4
Assets Control Office informed her of its tentative assessment, 5
explained to her the basis for that assessment, provided her with 6
a summary of the evidence it considered relevant, and offered her 7
an opportunity to respond in a written presentation. See, e.g., 8
Mathews, 424 U.S. at 346. The Agency considered the legal 9
arguments in Karpova's written submissions and issued a ruling 10
against her. Appellant has not identified in what way a 11
testimonial hearing would have benefitted her. Thus, there is no 12
genuine issue of material fact with regard to whether adequate 13
notice and an opportunity to be heard were provided to plaintiff. 14
B. Did the Foreign Assets Control Office Act as Both 15 Prosecutor and Judge? 16
17 We had a concern arising from appellant's arguments that due 18
process may have been violated in this case because the same 19
titled officer served as both prosecutor and judge in the 20
administrative proceedings. The Supreme Court has explained that 21
the combination of investigative and adjudicative functions in 22
the same individual does not necessarily create an 23
unconstitutional risk of bias so as to imperil the Due Process 24
Clause's requirement that trials be held before fair tribunals. 25
See Withrow v. Larkin, 421 U.S. 35, 46, 47, 57-58 (1975). 26
Instead, courts make case by case judgments based on the special 27

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facts and circumstances of each particular situation in 1
determining whether the risk of unfairness is intolerably high. 2
Id. at 58. However, we have recognized that it presents a 3
troublesome question to determine when a single individual could 4
serve as both prosecutor and judge in the same case without 5
violating due process. MFS Sec. Corp. v. SEC, 380 F.3d 611, 618 6
(2d Cir. 2004). But here, when it is the same office -- rather 7
than the same person -- that performs multiple functions, due 8
process is not violated. Id. at 618-19. 9
Here, the Director of the Office of Foreign Assets Control 10
performed a prosecutorial function by sending Karpova the June 11
23, 2004 Prepenalty Notice that first notified plaintiff of the 12
specific charges against her. The Director of the same office 13
made the Agency's final ruling against Karpova in the March 14, 14
2005 Penalty Notice. However, the Director on June 23, 2004 was 15
R. Richard Newcomb, while the Director on March 14, 2005 was 16
Robert W. Werner. Since the same individual did not perform 17
adjudicative and non-adjudicative functions, there is no risk of 18
bias in the case at hand and thus no due process violation. 19
III Right to Travel and Free Speech Claims 20
A. Standard of Review 21
The trial court dismissed Karpova's First Amendment free 22
speech and Fifth Amendment right to travel claims under Federal 23
Rule of Civil Procedure 12(b)(6) for failure to state claims. We 24
review de novo a district court's decision to dismiss a complaint 25
pursuant to Rule 12(b)(6), accepting as true all factual 26

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allegations contained in the complaint and drawing all inferences 1
in plaintiff's favor. Global Network Commc'ns, Inc. v. City of 2
New York, 458 F.3d 150, 154 (2d Cir. 2006). 3
B. Right to Travel Claim 4
Although the constitutional right to travel within the 5
United States is virtually unqualified, the right to travel 6
internationally is simply an aspect of the liberty protected by 7
the Due Process Clause of the Fifth Amendment, and as such may be 8
regulated within the bounds of due process. Califano v. Torres, 9
435 U.S. 1, 4 n.6 (1978) (per curiam). Therefore, this liberty 10
interest does not itself overcome the weighty foreign policy 11
concerns that may support travel restrictions. See Regan v. 12
Wald, 468 U.S. 222, 242 (1984). The President, in an executive 13
order implementing the economic sanctions authorized by Congress 14
in the Iraqi Sanctions Act of 1990, declared that the "policies 15
and actions of the Government of Iraq constitute an unusual and 16
extraordinary threat to the national security and foreign policy 17
of the United States," and therefore ordered that transactions by 18
United States citizens relating to travel to Iraq be prohibited. 19
Exec. Order No. 12,722, 55 Fed. Reg. 31,803 (Aug. 2, 1990). 20
Since the restriction on engaging in such transactions was based 21
on these concerns of foreign policy, the travel restriction was 22
not a violation of Karpova's liberty interests under the Fifth 23
Amendment's Due Process Clause. 24

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C. Free Speech Claim 1
Under the First Amendment, a restriction against traveling 2
to a specified country is "an inhibition of action," not speech. 3
Zemel v. Rusk, 381 U.S. 1, 16 (1965). As the Zemel Court 4
explained, many restrictions on action could "be clothed by 5
ingenious argument in the garb of decreased data flow." Id. at 6
16-17. Yet such arguments are to no avail since the First 7
Amendment guarantees a citizen the right to speak and publish, 8
but does not guarantee an unrestrained right to gather 9
information. Id. at 17. Karpova was fined because of her 10
actions in violating the travel regulations, not for her speech. 11
Consequently, her First Amendment rights were not violated. 12
CONCLUSION 13
Accordingly, for the foregoing reasons, the grant of summary 14
judgment by the district court dismissing Karpova's complaint is 15
affirmed. 16

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