Does v. Lawrence Wasden ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOES, John and Jane, 1–134, No. 19-35391
Plaintiff-Appellant,
D.C. No.
v. 1:16-cv-00429-
DCN
LAWRENCE WASDEN, Attorney
General of the State of Idaho; KEVIN
KEMPF, Director of the Idaho OPINION
Department of Correction; TERRY
KIRKHAM, Chief Department of
Correction Probation and Parole
Division; JON BURNHAM, Sexual
Offender Management Board;
MICHAEL JOHNSTON, Ph.d., Sexual
Offender Management Board;
MOIRA LYNCH, Sexual Offender
Management Board; JEFFREY BETTS,
Sexual Offender Management
Board; ERWIN SONNENBERG, Sexual
Offender Management Board; JEAN
FISHER, Sexual Offender
Management Board; PAULA GARAY,
Sexual Offender Management
Board; KIMBERLY SIMMONS, Sexual
Offender Management Board;
WILLIAM CRAWFORD, Sexual
Offender Management Board;
CHRISTINA IVERSON, Sexual
Offender Management Board;
2 DOES V. WASDEN
RALPH POWELL, Sexual Offender
Management Board; MATTHEW
THOMAS, Sheriff, Sexual Offender
Management Board; STEPHEN
BARTLETT, Ada County Sheriff;
LORIN NIELSEN, Bannock County
Sheriff; BRENT T. BUNN, Bear Lake
County Sheriff; CRAIG T. ROWLAND,
Bingham County Sheriff; PAUL J.
WILDE, Bonneville County Sheriff;
KIERNAN DONAHUE, Canyon County
Sheriff; MICHAEL HADERLIE,
Caribou County Sheriff; JAY
HEWARD, Cassia County Sheriff;
RICK LAYHER, Elmore County
Sheriff; DAVID FRYAR, Franklin
County Sheriff; CHARLES ROLLAND,
Gem County Sheriff; SHAWN
GOUGH, Gooding County Sheriff;
STEVE ANDERSON, Jefferson County
Sheriff; DOUG MCFALL, Jerome
County Sheriff; LYNN BOWERMAN,
Lemhi County Sheriff; KEVIN ELLIS,
Lincoln County Sheriff; ERIC SNARR,
Minidoka County Sheriff; JOE
RODRIGUEZ, Nez Perce County
Sheriff; TOM CARTER, Twin Falls
County Sheriff; PATTI BOLEN, Valley
County Sheriff; SEXUAL OFFENDER
MANAGEMENT BOARD; TONY
LIFORD, Teton County Sheriff; JIM
KACQMAREK, Boise County Sheriff;
CHRIS GOETZ, Clearwater County
Sheriff; BEN WOLFINGER, Kootenai
DOES V. WASDEN 3
County Sheriff; RICHARD SKILES,
Latah County Sheriff,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Idaho
David C. Nye, Chief District Judge, Presiding
Submitted May 12, 2020 *
Portland, Oregon
Filed December 9, 2020
Before: Jay S. Bybee and Lawrence J. VanDyke, Circuit
Judges, and Kathleen Cardone, ** District Judge.
Opinion by Judge Cardone;
Partial Concurrence and Partial Dissent by Judge VanDyke
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Kathleen Cardone, United States District Judge
for the Western District of Texas, sitting by designation.
4 DOES V. WASDEN
SUMMARY ***
Civil Rights
The panel reversed in part and affirmed in part the
district court’s dismissal of an action alleging that the
retroactive application of Idaho’s Sexual Offender
Registration Notification and Community Right-to-Know
Act, Idaho Code § 18-8301, et seq., is unconstitutional.
The panel held that the district court erred in dismissing
the ex post facto claim on the basis that SORA was civil in
intent and not punitive in effect. Specifically, the panel held
that the district court erred by (1) construing appellants’ ex
post facto claim as an as-applied challenge; (2) applying the
“clearest proof” standard at the motion to dismiss stage; and
(3) finding the outcome of the Smith v. Doe, 538 U.S. 84(2003) factors analysis to be controlled by precedent. Thus,
the panel held that to survive a motion to dismiss, appellants
only had to plausibly allege that the amended SORA, on its
face, was punitive in effect and case law did not foreclose a
finding that SORA was punitive. Because the district court’s
erroneous ex post facto analysis was incorporated as the sole
basis for dismissing appellants’ Eighth Amendment and
double jeopardy claims, the panel held that the district court
erred by dismissing those claims as well.
The panel held that the district court erred in dismissing
the free exercise claim under Idaho’s Free Exercise of
Religion Protected Act (“FERPA”). The panel held that by
alleging that SORA’s amendments have, in fact, prevented
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
DOES V. WASDEN 5
some of the appellants from attending their houses of
worship, appellants plausibly alleged that their free exercise
of religion was substantially burdened in violation of
FERPA.
The panel found no error in the district court’s analysis
of appellants’ vagueness, Free Association, Equal
Protection, Contracts Clause, Takings, Separation of
Powers, and state Police Power challenges, and affirmed the
dismissal of those claims.
Dissenting in part and concurring in part, Judge
VanDyke stated that he could not join in the portions of the
majority’s decision that raised dispositive arguments sua
sponte and revived repeatedly waived arguments. He
therefore dissented from the majority’s conclusions on the
ex post facto, FERPA, and cruel and unusual punishment
claims, except with respect to the holding that circuit
precedent did not necessarily foreclose appellants’ claim that
Idaho’s SORA could be punitive in effect. Judge VanDyke
concurred with the majority’s affirmance of the dismissal of
appellants’ remaining claims.
COUNSEL
Greg J. Fuller, Fuller Law Offices, Twin Falls, Idaho, for
Plaintiffs-Appellants.
Lawrence G. Wasden, Attorney General; Chris Kronberg,
Deputy Attorney General; Office of the Attorney General,
Boise, Idaho; for Defendants-Appellees.
6 DOES V. WASDEN
OPINION
CARDONE, District Judge:
Appellants, 134 men and women registered as sex
offenders in Idaho, claim that the retroactive application of
Idaho’s Sexual Offender Registration Notification and
Community Right-to-Know Act, Idaho Code § 18-8301, et
seq. (“SORA”) is unconstitutional. According to the First
Amended Complaint, a series of amendments to SORA have
heightened registrants’ registration and notification
obligations and imposed direct restrictions on registrants’
movement, housing, and employment. Further, all
amendments to SORA have been applied retroactively to all
Idaho sex offender registrants. Appellants argue that these
retroactively imposed provisions are unconstitutional, in part
because they violate the Ex Post Facto Clause and the Free
Exercise Clause. The district court granted Appellees’
motions to dismiss, dismissing all of Appellants’ claims.
Because we find the district court erred in dismissing the ex
post facto and free exercise claims, we reverse in part.
Additionally, because the district court predicated its
dismissal of the Eighth Amendment and double jeopardy
claims on its dismissal of the ex post facto claim, we hold
that those judgments were also in error, though we reserve
judgment on the merits of those claims.
FACTUAL AND PROCEDURAL HISTORY
The state of Idaho began requiring sex offender
registration in July 1993. It initially imposed only a duty for
persons convicted of certain felony sex crimes to register
with their local sheriff. In 1998, Idaho passed SORA,
imposing the more expansive framework still in place today,
designed to create public access to information about
persons convicted of sexual offenses.
DOES V. WASDEN 7
In addition to creating a central registry of public sex
offender information, SORA expanded the category of
offenders required to register, codifying a catalog of eligible
offenses in Idaho Code § 18-8304. The 1998 version of
SORA required all registrants to undergo a “psychosexual
evaluation.” Registrants convicted of a subcategory of
offenses, listed in Idaho Code § 18-8312, and found to pose
such a risk based on their evaluation, were deemed “violent
sexual predators.” All registrants, except for violent sexual
predators, were eligible to petition the district court for a
show cause hearing to determine whether the person could
be exempted from the registration requirements and its
obligations after a ten-year period of registration. Violations
of registry requirements could result in felony offenses
punishable by up to five years of incarceration and a $5,000
fine. If a registrant was on some form of supervised release
at the time of a registry violation, punishment for a
registration violation could include revocation of release and
reinstatement of the underlying sentence.
The 1998 act was applied retroactively to any person
convicted of a newly-eligible offense after July 1, 1993. The
act was also applied retroactively to anyone who entered the
state of Idaho after July 1, 1993, who had been convicted of
any crime that was “substantially equivalent” to the act’s
listed offenses. After the 1998 amendments, the Idaho
legislature amended SORA in 2001, 2002, 2004, 2005, 2006,
2008, 2009, 2010, 2011, 2012, and 2013. Each set of
amendments was applied retroactively in the same manner
as the 1998 act.
In general, these amendments expanded SORA’s
framework, adding to the list of eligible offenses and
heightening the obligations of registration. Appellants
emphasize certain changes as particularly significant. In
8 DOES V. WASDEN
2001, a new category of “aggravated offenses” was codified,
covering a subset of the eligible offenses as well as any
eligible offense committed against a victim under the age of
thirteen. Registrants convicted of an aggravated offense
were made ineligible to petition for removal from the
registry. The 2006 amendments added Idaho Code § 18-
8329. This provision made it a misdemeanor offense for any
registrant to be on or within 500 feet of school buildings and
grounds when children under the age of eighteen are present.
Some exceptions to the rule were also created, such as for
when registrants are students at the school or transporting
their own child to and from school. This rule also applies to
where registrants may reside, unless the registrant’s
residence was established prior to July 1, 2006. Appellants
allege that the rule severely restricts their access to housing
and choice of employment, among other effects.
SORA was significantly amended again in 2011. As in
prior years, new offenses were added to the list of crimes
requiring registration. There was also a significant increase
in the amount of information required at registration and a
decrease in the amount of time provided to comply. And,
registrants were newly required to provide advance notice of
any travel lasting longer than seven days, and to provide in-
person notice of their presence to law enforcement in the
jurisdictions they travel to.
Further, the 2011 amendments altered the role of
individualized review within the framework. The entity
previously known as the “Sex Offender Classification
Board”—responsible for evaluating the risk of offenders and
classifying “violent sexual predators”—was renamed as the
“Sex Offender Management Board.” The provisions
charging the Board with evaluating the risk posed by
offenders were struck, and the Board’s authority was instead
DOES V. WASDEN 9
defined as “the advancement and oversight of sexual
offender management policies and practices statewide.” The
provision requiring a “psychosexual evaluation” was made
discretionary, and the term “violent sexual predator” was
redefined to mean only those previously designated as such
by the former Classification Board.
Finally, the 2011 amendments restated SORA’s
registration period, making the default term for all
registrants “for life.” Eligibility to petition for removal after
ten years was previously the default, with lifetime
registration listed as the exception. After the 2011
amendments, the petition right is instead listed as the
exception from the lifetime default, and is available only for
those registrants who are not recidivists, not convicted of an
aggravated offense, and not previously deemed violent
sexual predators.
To summarize, when SORA was initially enacted in
1998, it required individualized risk evaluation of each
registrant, with only those classified as violent sexual
predators ineligible to petition for removal. As amended,
SORA instead categorizes registrants based on the offense
of conviction, either aggravated or non-aggravated. The
default registration term is “for life,” but with those
convicted of non-aggravated offenses eligible to petition for
removal after ten years.
Appellants are a group of men and women who are
required to register as sex offenders in Idaho. While
Appellants’ circumstances vary, all were previously not
required to register or were eligible to petition for removal
from registration after ten years. Then, due to retroactive
amendments to SORA, Appellants have all been required to
register and stripped of any eligibility for removal, instead
subject to lifetime registration. As a result, Appellants must
10 DOES V. WASDEN
comply with SORA’s heightened reporting obligations and
restrictions on housing, travel, and employment.
Appellants allege a series of effects caused by the
retroactive application of SORA’s amendments. They allege
that SORA severely limits “their ability to direct the
upbringing of their children, find housing and employment,
get an education, travel, engage in free speech activities
(including use of the Internet), be free from harassment and
stigma, and understand what is required of them under the
statute.” They also allege that SORA’s restrictions do not
serve to ensure public safety or to reduce recidivism by
registrants.
Appellants filed suit against a variety of Idaho
government officials and entities, claiming that SORA was
unconstitutional on several grounds. Specifically,
Appellants claimed that SORA was unconstitutionally
vague; violated their First Amendment right to free exercise
of religion; violated their substantive due process rights
under the Fourteenth Amendment by impinging on free
association, travel, and parenting; violated their Fourteenth
Amendment right to equal protection; violated the Eighth
Amendment as cruel and unusual punishment; violated the
Ex Post Facto Clause; violated the Double Jeopardy Clause;
violated the Contracts Clause; violated the Takings Clause;
violated the Idaho state constitution’s separation-of-powers
provision and police power provision; and violated Idaho’s
contracts clause.
Appellees filed a Rule 12(b)(6) motion to dismiss all of
Appellants’ claims. The district court, finding that SORA
has a “plainly legitimate sweep,” dismissed all of
Appellants’ claims with prejudice to the extent they were
alleged as facial challenges to SORA. Then, the district
court found that Appellants “have not pleaded any specific
DOES V. WASDEN 11
as-applied challenges.” The Court dismissed without
prejudice Appellants’ vagueness, free association, free
exercise, substantive due process, cruel and unusual
punishment, ex post facto, double jeopardy, contracts, and
separation-of-powers claims, allowing Appellants to replead
those claims as explicitly as-applied challenges with
“specific plaintiff/s and specific facts.” The Court dismissed
with prejudice the equal protection, takings, and state police
powers claims “because even an as-applied challenge would
fail.”
Appellants refiled their Complaint with more detailed
factual allegations regarding twelve of the 134 John and Jane
Does. The district court found that “[e]ven with the detail
added for each of the twelve Does, . . . the Second Amended
Complaint still fails to state a plausible claim upon which
relief can be granted.” Accordingly, the district court
dismissed all of Appellants’ remaining claims with
prejudice. Appellants timely appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. Karasek
v. Regents of Univ. of Cal., 956 F.3d 1093, 1104 (9th Cir.
2020). Because we are reviewing a dismissal for failure to
state a claim, we review the district court’s decision de novo.
See Walker v. Fred Meyer, Inc., 953 F.3d 1082, 1086 (9th
Cir. 2020). We accept the factual allegations of the
complaint as true and construe the pleadings in the light most
favorable to the plaintiffs. See id.DISCUSSION
We find that the district court erred in dismissing
(1) Appellants’ ex post facto claim and (2) Appellants’ free
exercise claim.
12 DOES V. WASDEN
A
Appellants contend that the district court erred in
granting Appellees’ motions to dismiss as to Appellants’ ex
post facto challenge to SORA. On Appellees’ first motion
to dismiss, the court dismissed Appellants’ facial ex post
facto challenge with prejudice, finding it squarely foreclosed
by the Supreme Court decision in Smith v. Doe, 538 U.S. 84(2003), and Ninth Circuit cases following Smith. The district
court granted Appellants leave to amend only to assert an as-
applied ex post facto challenge. On Appellees’ second
motion to dismiss, the district court dismissed Appellants’
as-applied ex post facto claim, finding that SORA is civil in
intent and not punitive in effect. Further, the district court
then dismissed Appellants’ Eighth Amendment and double
jeopardy challenges on the same basis, without further
analysis, because those claims turn on the same punitive
effects inquiry.
The district court erred in construing Appellants’ ex post
facto claim as an as-applied challenge. It also erred by
applying the “clearest proof” standard at the motion to
dismiss stage. Finally, it erred in finding the outcome of the
Smith factors analysis controlled by precedent. We discuss
each error in turn.
First, in Seling v. Young, 531 U.S. 250 (2001), the
Supreme Court held that ex post facto claims based on the
punitive effect of purportedly civil statutes cannot be
construed as “as-applied” challenges. Id. at 263–65; Young
v. Weston, 344 F.3d 973, 976 (9th Cir. 2003). Rather, courts
must evaluate a law’s punitive effect based on a variety of
factors—such as the terms of the statute, the obligations it
imposes, and the practical and foreseeable consequences of
those obligations—in relation to the statute on its face. See
Seling, 531 U.S. at 262; Young, 344 F.3d at 976. Therefore,
DOES V. WASDEN 13
to establish a claim, a plaintiff need not present evidence
regarding the effects of the statute as applied to him. See
Young, 344 F.3d at 976. Yet, the district court looked to
SORA’s effects on the Appellants individually, finding that
their allegations failed to meet the “clearest proof” standard.
Thus, the district court erred by considering Appellants’
claim as an as-applied challenge.
Second, the “clearest proof” standard refers to a
plaintiff’s ultimate burden to sustain an ex post facto
challenge. When a statute is expressly civil in intent, the
Supreme Court has stated that only the clearest proof is
sufficient to override the legislature’s intent and render the
putatively civil regulation a criminal penalty. Smith,
538 U.S. at 92. To survive a motion to dismiss, however,
Appellants only had to plausibly allege that the amended
SORA, on its face, is punitive in effect. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); see also Daniel v. Fulwood,
766 F.3d 57, 61–62 (D.C. Cir. 2014) (“At the motion to
dismiss stage, of course, a plaintiff need only show that his
ex post facto claim—like any other claim—is ‘plausible.’”).
Accepting the allegations in the First Amended
Complaint as true, all Appellants are retroactively subject to
lifetime registration terms. By the SORA amendments,
Idaho has retroactively imposed—in addition to heightened
registration obligations—restrictions on housing,
employment, and travel. Registrants are prohibited from
being on or within 500 feet of school grounds when children
under the age of eighteen are present, with some exceptions.
The same restriction applies to where registrants may reside.
Registrants now must provide notice to law enforcement
both before and during certain kinds of travel. And,
violations of SORA’s procedures are punishable as criminal
offenses, not unlike the conditions of supervised release.
14 DOES V. WASDEN
Idaho Code § 18-8311. Indeed, in some circumstances,
violations can result in revocation of probation and
reinstatement of a registrant’s underlying sentence. Id.Appellants alleged a bevy of effects caused by these
retroactively imposed restrictions. The district court erred in
holding these allegations to the “clearest proof” standard at
the motion to dismiss stage. Instead, accepting the
allegations as true, the district court must consider only
whether Appellants alleged that SORA is punitive in effect.
See Iqbal, 556 U.S. at 678; Daniel, 766 F.3d at 61–62.
Finally, case law does not foreclose a finding that SORA
is punitive. The district court found that Appellants’ claims
were precluded because, under Smith and related Ninth
Circuit cases, it was bound to conclude that the amended
SORA is not punitive in effect. The court relied, in addition
to Smith, on Litmon v. Harris, 768 F.3d 1237 (9th Cir. 2014),
United States v. Elk Shoulder, 738 F.3d 948 (9th Cir. 2013),
United States v. Elkins, 683 F.3d 1039 (9th Cir. 2012); and
ACLU v. Cortez Masto, 670 F.3d 1046 (9th Cir. 2012).
However, these cases only considered registration and
notification provisions, the most common sex offender
registry terms. None of these cases considered retroactively
applied residency, travel, or employment restrictions,
whereas the amended SORA imposes all of the above.
While these related cases may provide guidance, they do not
necessarily foreclose the claims in this case. See, e.g., Does
#1–5 v. Snyder, 834 F.3d 696, 705–06 (6th Cir. 2016), cert.
denied, 138 S.Ct. 55 (2017). 1 The court should consider the
1
The Snyder court, in sustaining an Ex Post Facto challenge,
distinguished Michigan’s sex offender registry law from the Alaska law
at issue in Smith. 834 F.3d at 701–06. Like Idaho’s SORA, Michigan’s
law imposed a restriction on where registrants could move and reside
DOES V. WASDEN 15
effects of SORA’s regulatory scheme, as amended and in its
entirety, in determining whether it runs afoul of the
Constitution. 2 See Smith, 538 U.S. at 97.
The dissent, relying on United States v. Sineneng-Smith,
—U.S. —, 140 S. Ct. 1575 (2020), asserts that, by reaching
these errors, we have violated the principle of party
presentation. Although we acknowledge that Appellants’
briefing was particularly inartful, we do not think Sineneng-
Smith applies here, nor do we believe we have cut these
challenges out of whole cloth. Appellants have clearly
challenged the district court’s ruling dismissing the ex post
facto claim. Blue Br. 8–11; Gray Br. 7–15. Appellants
initially argued before the district court that SORA violated
based on school zones. See id. at 701–02. The Snyder court explained
why Smith was not controlling:
A regulatory regime that severely restricts where
people can live, work, and “loiter,” that categorizes
them into tiers ostensibly corresponding to present
dangerousness without any individualized assessment
thereof, and that requires time-consuming and
cumbersome in-person reporting, all supported by—at
best—scant evidence that such restrictions serve the
professed purpose of keeping Michigan communities
safe, is something altogether different from and more
troubling than Alaska’s first-generation registry law.
Id. at 705.
2
Other courts, when analyzing statutes with restrictions like
SORA’s, have found that many of the factors indicate a punitive effect.
See, e.g., Snyder, 834 F.3d at 701–05; Doe v. State, 111 A.3d 1077,
1094–95, 1100 (N.H. 2015); Riley v. N.J. State Parole Bd., 98 A.3d 544,
558–60 (N.J. 2014); Starkey v. Okla. Dep’t of Corr., 305 P.3d 1004,
1025–30 (Okla. 2013); Commonwealth v. Baker, 295 S.W.3d 437, 444
(Ky. 2009); State v. Letalien, 985 A.2d 4, 22–23 (Me. 2009).
16 DOES V. WASDEN
the Ex Post Facto Clause because of its punitive effects.
First Am. Compl. ¶¶ 261–64; Blue Br. 4. The district court
dismissed this claim with prejudice to the extent it was
alleged as a facial challenge but allowed Appellants to
amend their complaint to plead an as-applied challenge
under the Ex Post Facto Clause. ER 67. After Appellants
did so, the district court found the allegations “still fail[ed]
to state a plausible claim,” and dismissed the as-applied Ex
Post Facto Clause claim with prejudice. ER 11–12.
Appellants have appealed, inter alia, the district court’s
determination that they failed to state a claim under the Ex
Post Facto Clause, which encompasses both the facial and
as-applied challenges. Blue Br. 4, 8–11.
As we explained above, the district court made three
errors in dismissing Appellants’ claims: (1) construing
Appellants’ ex post facto claim as an as-applied challenge;
(2) applying the “clearest proof” standard at the motion to
dismiss stage; and (3) finding the outcome of the Smith
factors analysis controlled by precedent. Although
Appellants’ briefing admittedly does not directly discuss the
impossibility of an “as-applied” ex post facto claim, it is a
longstanding principle that “when an issue or claim is
properly before the court, the court is not limited to the
particular legal theories advanced by the parties, but rather
retains the independent power to identify and apply the
proper construction of governing law.” See Kamen v.
Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991); see also
Thompson v. Runnels, 705 F.3d 1089, 1098, 1099 n.4 (9th
Cir. 2013) (same); Lezama-Garcia v. Holder, 666 F.3d 518,
535 n.15 (9th Cir. 2011) (same).
The circumstances in Sineneng-Smith go far beyond this
principle. Sineneng-Smith was convicted of encouraging or
inducing aliens to enter the United States knowing that their
DOES V. WASDEN 17
entry would be unlawful in violation of 8 U.S.C. § 1324.
Sineneng-Smith, 140 S.Ct. at 1578. Sineneng-Smith
challenged her conviction in the district court on the grounds
that (1) her conduct was not covered by the relevant
provision, or (2) if her conduct was covered, the statute
violated the Petition and Free Speech Clauses of the First
Amendment as applied to her. Id. She advanced essentially
the same arguments on appeal, id., asserting the provision
“is unconstitutionally vague . . . , or should rank as a content-
based restraint on her speech,” id. at 1580. Sineneng-Smith
also argued that the Petition and Free Speech Clauses of the
First Amendment protected her actions. Id.
Despite having full briefing from the parties on the raised
issues, our Court ordered further briefing from three non-
parties on three different issues, the first of which had never
been raised by the parties: (1) overbreadth under the First
Amendment; (2) vagueness under the First or Fifth
Amendments; and (3) whether the provision included an
implicit mens rea element. 140 S. Ct. at 1580–81. The
parties “were permitted, but not required, to file
supplemental briefs limited to responding to any and all
amicus/amici briefs,” and the parties and the amici were
heard at a second oral argument before the panel. Id. at 1581
(internal quotation marks omitted). Effectively, it was a “do
over of the appeal,” id. at 1578, in which “the appeals panel
intervened,” id. at 1580.
As laid out above, the circumstances here are
substantially different from those in Sineneng-Smith. Rather
than “takeover” the appeal, id. at 1581, we have merely
“identif[ied] and appl[ied] the proper construction of
governing law,” Kamen, 500 U.S. at 99, over a claim that
was presented twice to the district court and briefed and
argued to us. We have worked to understand the Appellants’
18 DOES V. WASDEN
claims, but the Supreme Court has reminded us that “[t]he
party presentation principle is supple, not ironclad.”
Sineneng-Smith, 140 S. Ct. at 1579. We do not think we
have exceeded the bounds of our discretion, and “we decline
the dissent’s invitation to turn inartful briefing into waiver.”
See United States v. McReynolds, 964 F.3d 555, 568 (6th Cir.
2020).
For the foregoing reasons, we find that the district court
erred in dismissing Appellants’ ex post facto claim.
Furthermore, because the ex post facto analysis that we find
to be in error was incorporated as the sole basis for
dismissing Appellants’ Eighth Amendment and double
jeopardy claims, we find the dismissal of those claims to be
in error as well.
B
Appellants also argue that the district court erred in
dismissing their free exercise claim under Idaho’s Free
Exercise of Religion Protected Act (“FERPA”). On
Appellees’ first motion to dismiss, the district court
dismissed Appellants’ facial free exercise claim with
prejudice but granted leave for Appellants to amend their as-
applied claim based on FERPA. Upon Appellees’ second
motion to dismiss, the district court dismissed the claim
again, finding that Appellants failed to assert a claim under
FERPA. The district court erred in finding that Appellants
alleged insufficient facts to plead a plausible FERPA claim.
FERPA, like its federal counterpart the Religious
Freedom Restoration Act (“RFRA”), provides that any law
that substantially burdens the free exercise of religion must
be in furtherance of a compelling government interest and
must be the least restrictive means of furthering that interest.
See Idaho Code § 73-402 (2020); State v. White, 271 P.3d
DOES V. WASDEN 19
1217, 1220 (Idaho Ct. App. 2011). FERPA’s definition of a
substantial burden is much broader than RFRA’s, however.
State v. Cordingley, 302 P.3d 730, 733 & n.2 (Idaho Ct. App.
2013). FERPA’s substantial burden prong is governed by
the “religious motivation test,” the broadest of three possible
tests, requiring only “that the government prevented the
claimant from engaging in conduct both important to them
and motivated by sincere religious belief.” Id. at 733–34 &
n.3. 3
To survive a motion to dismiss on their FERPA claim,
Appellants must have alleged facts showing that the
challenged policy substantially burdens the exercise of their
religious beliefs. See Navajo Nation v. U.S. Forest Serv.,
535 F.3d 1058, 1068 (9th Cir. 2008) (en banc). Appellants
have done so here by alleging in their Second Amended
Complaint that SORA restricts them from attending their
houses of worship, thereby inhibiting an important and
sincerely motivated religious practice. See Cordingley,
302 P.3d at 733 & n.3.
However, the district court concluded that Appellants
failed to raise FERPA in the Second Amended Complaint
and dismissed the as-applied FERPA claim on that basis.
The Second Amended Complaint, however, includes a
Count titled “Religion” and alleges that “Idaho has
substantially burdened [Appellants’] exercise of religion
without demonstrating” that the burden “is both (a) essential
to further a compelling governmental interest; and is (b) the
3
Under RFRA, by contrast, “a ‘substantial burden’ is imposed only
when individuals are forced to choose between following the tenets of
their religion and receiving a governmental benefit . . . or [are] coerced
to act contrary to their religious beliefs by the threat of civil or criminal
sanctions.” Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1069–
70 (9th Cir. 2008) (en banc).
20 DOES V. WASDEN
least restrictive means of furthering that compelling
governmental interest.” Although this language does not
explicitly refer to FERPA, it tracks with the language of the
statute, and the standard invoked is only available to
Appellants under FERPA. See Idaho Code § 73-402(3)(a)–
(b). Because the district court was obliged to construe the
pleadings in the light most favorable to the plaintiffs, see
Walker, 953 F.3d at 1086, it should have construed the
“Religion” claim in the Second Amended Complaint as
arising under FERPA.
The district court also considered the sufficiency of
Appellants’ allegations of a substantial burden. The district
court acknowledged that several of the plaintiffs alleged that
they have had to choose between attending church or risking
noncompliance with SORA. But the court noted that, under
Idaho Code § 18-8329(1)(a), SORA does not prohibit sex
offenders from attending a church unless the church itself is
used as a school and is posted with a notice to that effect.
Because Appellants did not specifically allege that the
churches they sought to attend were also used as schools and
were posted with the requisite notice, the court reasoned that
SORA did not, in fact, bar Appellants’ attendance.
This reasoning fails to accept Appellants’ allegations as
true and construe the facts in the light most favorable to
Appellants. For example, Appellants alleged that John Doe
117 was restricted from attending religious services under
SORA on the grounds that his church also operated as a
school. Accepting this allegation as true, John Doe 117’s
free exercise of religion was substantially burdened, even
though Appellants did not specify that John Doe 117’s
church was posted with the requisite notice. Furthermore,
the district court ignored the impact of Idaho Code § 18-
8329(1)(b). That provision restricts registrants from being
DOES V. WASDEN 21
within 500 feet of the property line of school grounds. Idaho
Code § 18-8329(1)(b). Indeed, Appellants alleged that John
Doe 128 was restricted from attending his church because of
“the proximity of a school.” By alleging that SORA’s
amendments have, in fact, prevented some of the Appellants
from attending their houses of worship, Appellants plausibly
alleged that their free exercise of religion was substantially
burdened in violation of FERPA.
Finally, in its first dismissal of Appellants’ free exercise
claim, the district court concluded that—even if Appellants
had stated a claim—SORA’s 500-foot rule is the least
restrictive means for accomplishing the compelling
government interest of protecting society. The court did not
discuss whether an exception for houses of worship would
be a less restrictive means of achieving the governmental
purpose. “The least-restrictive-means standard is
exceptionally demanding,” and the government bears the
burden of showing “that it lacks other means of achieving its
desired goal without imposing a substantial burden on the
exercise of religion by the objecting part[y].” Holt v. Hobbs,
574 U.S. 352, 364–65 (2015) (quoting Burwell v. Hobby
Lobby Stores, Inc., 573 U.S. 682, 728 (2014)); Warsoldier v.
Woodford, 418 F.3d 989, 999 (9th Cir. 2005).
It is not clear from the district court’s decision whether
and how Appellees satisfied this burden. In any event, at the
motion to dismiss stage, Appellants only had to allege a
substantial burden on their free exercise of religion that is
not the least restrictive means available. See Greene v.
Solano Cty. Jail, 513 F.3d 982, 989 (9th Cir. 2008)
(recognizing the least restrictive means inquiry as a factual
issue). Because at least some of the Appellants have done
so in the Second Amended Complaint, the district court erred
in dismissing all of the as-applied free exercise claims.
22 DOES V. WASDEN
CONCLUSION
We find that the district court erred in dismissing
Appellants’ ex post facto and free exercise claims and,
accordingly, in dismissing the Eighth Amendment and
double jeopardy claims on the same basis. Because we find
no error in the district court’s analysis of Appellants’
vagueness, Free Association, Equal Protection, Contracts
Clause, Takings, Separation of Powers, and state Police
Power challenges, we affirm the dismissal of those claims.
We reverse and remand for further proceedings consistent
with this opinion.
REVERSED IN PART, AFFIRMED IN PART, AND
REMANDED.
VANDYKE, Circuit Judge, dissenting in part and
concurring in part.
This is a difficult case, made all the more so by
Appellants John and Jane Does 1–134’s (“Does”) woefully
inadequate briefing. Despite repeated reprimands below, the
Does’ counsel continues to “require[] the Court to parse
through pages upon pages of allegations” to decipher their
actual arguments on appeal. Indeed, “[w]hen reading [the
Does’] brief . . . [and the record below], one wonders if
[they], in [their] own version of the ‘spaghetti approach,’
ha[ve] heaved the entire contents of a pot against the wall in
hopes that something would stick.” Indep. Towers of Wash.
v. Washington, 350 F.3d 925, 929 (9th Cir. 2003).
Typically, “[w]e decline . . . to sort through the noodles”
to craft claims for plaintiffs. Id. “Our circuit has repeatedly
admonished that we cannot ‘manufacture arguments for an
DOES V. WASDEN 23
appellant’ and therefore we will not consider any claims that
were not actually argued in appellant’s opening brief.” Id.(quoting Greenwood v. Fed. Aviation Admin., 28 F.3d 971,
977 (9th Cir. 1994)). Though tempting to impose credible
arguments on the Does’ briefing and pleadings, the Supreme
Court has recently sternly warned us against doing so. As
such, I cannot join in the portions of the majority’s decision
that raise dispositive arguments sua sponte and revive
repeatedly waived arguments. But I do narrowly concur that
binding precedent does not foreclose the Does’ ex post facto
and double jeopardy claims as pled and argued. 1
I. The Majority’s Holding on “As-Applied” Challenges
Violates the Party Presentation Principle.
The majority first errs in restructuring this appeal around
an argument raised sua sponte in the opinion: that ex post
facto claims based on the punitive effect of purportedly civil
statutes cannot be construed as “as-applied” challenges. No
party raised this argument on appeal or below, and the
principle of party presentation should prohibit us from
reversing on that basis.
“In our adversarial system of adjudication, we follow the
principle of party presentation.” United States v. Sineneng-
Smith, 140 S. Ct. 1575, 1579 (2020). “[I]n both civil and
criminal cases, in the first instance and on appeal . . . we rely
on the parties to frame the issues for decision and assign to
courts the role of neutral arbiter of matters the parties
present.” Id. (quoting Greenlaw v. United States, 554 U.S.
237, 243 (2008)). “Particularly on appeal, we have held firm
against considering arguments that are not briefed.” Indep.
1
I also concur with the majority in its affirmance of the dismissal of
the Does’ remaining claims.
24 DOES V. WASDEN
Towers, 350 F.3d at 929. Recently, the Supreme Court
unanimously held that our court had “departed so drastically
from the principle of party presentation as to constitute an
abuse of discretion,” Sineneng-Smith, 140 S. Ct. at 1578,
when we identified new arguments on appeal, invited
supplemental briefing on those arguments from amici, and
restructured the oral argument and ultimate decision based
on those arguments. Id. at 1580–81.
Here, the majority falls prey to the same temptations as
in Sineneng-Smith by reshaping its decision based on an
argument not raised by any party, without even the benefit
of supplemental briefing. Sineneng-Smith, 140 S. Ct.
at 1581–82, Cf. Thompson v. Runnels, 705 F.3d 1089, 1100
(9th Cir. 2013) (“Because the legal issue has been fully
addressed by both parties, and because it is a simple and
straightforward question of law, we do not abuse our
discretion in addressing it.”). Indeed, our court’s actions in
Sineneng-Smith were actually more defensible than the
majority’s here because at least in Sineneng-Smith our court
notified the parties of the intended new direction and
received supplemental briefing. But here, where neither
party “so much as hint[ed],” Sineneng-Smith, 140 S. Ct.
at 1580, “that ex post facto claims based on the punitive
effect of purportedly civil statutes cannot be construed as
‘as-applied’ challenges,” the majority is writing on an
entirely clean slate without any input from the litigants.
Having erred in Sineneng-Smith, we a fortiori err here.
The majority counters that it “retains the independent
power to identify and apply the proper construction of
governing law.” Kamen v. Kemper Fin. Servs., Inc.,
DOES V. WASDEN 25
500 U.S. 90, 99 (1991). 2 But Kamen also expressly
cautioned that it did “not mean to suggest that a court of
appeals should not treat an unasserted claim as waived or
that the court has no discretion to deny a party the benefit of
favorable legal authorities when the party fails to comply
with reasonable local rules on the timely presentation of
arguments.” Id. at 100 n.5. It should come as no surprise,
then, that relying on Sineneng-Smith, this court has
recognized that “we must adhere to ‘the principle of party
presentation.’ It is the parties who ‘frame the issues for
decision,’ and we may entertain only those arguments
‘bearing a fair resemblance to the case shaped by the
parties.’” AMA Multimedia, LLC v. Wanat, 970 F.3d 1201,
1214 (9th Cir. 2020) (internal citation omitted) (quoting
Sineneng-Smith, 140 S. Ct. at 1579). Given the particularly
inartful briefing in this case, including the Does’ embrace of
the “as-applied” challenges that the majority now explicitly
rejects when ruling in their favor, adherence to the party
presentation principle is especially warranted here. This
case concerns the adjudication of important rights for a
whole class of people, so allowing it to proceed with such
2
The majority also endeavors to distinguish Sineneng-Smith from
the present case, but both cases present substantively similar
circumstances: despite the petitioners’ choice to raise certain challenges,
the court opted to form its own theory of the case and resolve it on an
issue that that neither party contemplated. Sineneng-Smith, 140 S. Ct.
at 1580–81. The only relevant difference is that the court in Sineneng-
Smith at least had some input from the parties given the supplemental
briefing and argument. Id. at 1581. And this court has subsequently
rejected untimely arguments pursuant to Sineneng-Smith in other
contexts. See, e.g., AMA Multimedia, LLC, 970 F.3d at 1214 (“we reject
AMA’s argument regarding the Privacy Shield Decision because it is
unrelated ‘to the case shaped by the parties’. . . . AMA had numerous
opportunities to raise the Privacy Shield decision but did not do so until
we ordered supplemental briefing” (quoting Sineneng-Smith, 140 S. Ct.
at 1582)).
26 DOES V. WASDEN
particularly inartful briefing runs a high risk of ultimately
harming the very parties the briefing purports to protect.
II. The Majority Misconstrues the “Clearest Proof”
Standard.
The majority also errs in its treatment of the “clearest
proof” standard. First, to the extent it’s actually implicated
in this appeal, the Does waived any challenge to the district
court’s application of that standard by not raising the
“clearest proof” standard in their opening brief and only
briefly alluding to it in their reply by block quoting a
concurrence and dissent, providing no analysis. Again, “we
cannot ‘manufacture arguments for an appellant.’” Indep.
Towers, 350 F.3d at 929 (quoting Greenwood, 28 F.3d
at 977). Likewise, “[a] bare assertion of an issue does not
preserve a claim.” Id. (quoting D.A.R.E. Am. v. Rolling
Stone Magazine, 270 F.3d 793, 793 (9th Cir. 2001)). In
fairness to and consistent with our prior practice, this
argument should be deemed waived.
But even if it wasn’t waived, the majority incorrectly
states that the district court “erred by applying the ‘clearest
proof’ standard at the motion to dismiss stage” because “the
district court must consider only whether Appellants alleged
that SORA is punitive in effect.” But the latter is exactly
what the district court did when it concluded that “SORA is
not so punitive in effect or purpose that it negates the Idaho
legislature’s intent to enact a civil regulatory scheme.” The
district court only later referenced in passing the clearest
proof standard when discussing the Does’ inability to
distinguish harms suffered from those considered in
previous ex post facto challenges. It was only this inability
to raise new and distinguishable harms from previous ex post
facto challenges considered and rejected by federal and state
courts—not the Does’ inability to provide the “clearest
DOES V. WASDEN 27
proof” at the pleading stage—that the district court
concluded was “fatal to their claim.”
Lastly, the majority misunderstands the pleading
requirements in holding that “[t]o survive a motion to
dismiss . . . Appellants only had to plausibly allege that the
amended SORA, on its face, is punitive in effect.” Like
other heightened legal thresholds, the “clearest proof”
standard is best understood as referring to a presumption that
makes it harder for plaintiffs to win their challenge. As such,
the “clearest proof” standard is relevant at the motion to
dismiss stage. See Waldman v. Conway, 871 F.3d 1283,
1294 (11th Cir. 2017) (per curiam) (“Here, taken as true,
none of the allegations in [the plaintiff’s] complaint would
provide the ‘clearest proof’ necessary to override the
presumption that Alabama’s stated civil intent to protect
children is actually punitive.” (emphasis added)); Does #1–
5 v. Snyder, 834 F.3d 696, 700 (6th Cir. 2016) (recognizing
that in an appeal of a motion to dismiss, “the test we must
apply . . . is quite fixed: an ostensibly civil and regulatory
law, such as SORA, does not violate the Ex Post Facto clause
unless the plaintiff can show ‘by the clearest proof’ that
‘what has been denominated a civil remedy’ is, in fact, ‘a
criminal penalty’” (quoting Smith v. Doe, 538, U.S. 84, 92
(2003)); cf. Ctr. for Individual Freedom v. Madigan,
697 F.3d 464, 470–71 (7th Cir. 2012) (“To prevail in such a
facial challenge, a plaintiff must cross a high bar. . . . The
district court granted the state’s motion to dismiss, finding
the Center could not meet these standards. We affirm.”).
Whatever that heightened standard is, at the motion to
dismiss stage the district court is obligated to evaluate
whether the plaintiffs’ allegations—if true—would meet that
heightened requirement. This comports with cases in our
sister circuits that were dismissed based on plaintiffs’
inability to appropriately plead allegations that, if true,
28 DOES V. WASDEN
would satisfy the “clearest proof” standard. See, e.g., Does
#1–7 v. Abbott, 345 F. Supp. 3d 763, 777 (N.D. Tex. 2018)
(“In light of the Mendoza-Martinez factors and absent the
‘clearest proof’ that the effects of Chapter 62 are punitive,
the Court finds that this statute constitutes a nonpunitive
civil scheme. Thus, Plaintiffs’ Ex Post Facto Clause Claim
. . . fail[s] as a matter of law . . . .” (emphasis added)), aff’d,
945 F.3d 307, 311 (5th Cir. 2019) (per curiam) (“Ex post
facto, Eighth Amendment, and double jeopardy challenges
do not cross the minimum pleading threshold because
Chapter 62 is nonpunitive.” (emphasis added)); Anderson v.
Holder, 647 F.3d 1165, 1173 (D.C. Cir. 2011) (“Anderson
and his amicus have failed to show by the clearest proof that
the effects of the law negate the Council’s intention to
establish a civil regulatory scheme.” (emphasis added)
(citation, quotations marks, and brackets omitted));
Windwalker v. Bentley, 925 F. Supp. 2d 1265, 1270 (N.D.
Ala. 2013) (dismissing, inter alia, for failure to appropriately
satisfy the clearest proof standard), aff’d sub nom.
Windwalker v. Governor of Alabama, 579 Fed. App’x 769
(11th Cir. 2014). 3
3
The majority’s citation to Daniel v. Fulwood in support of its
holding is not to the contrary. 766 F.3d 57, 61–62 (D.C. Cir. 2014).
Daniel has nothing to do with the “clearest proof” standard or any
presumption favoring regulatory statutory schemes; it considered an ex
post facto claim with regard to parole guidelines, which does not make
a determination of punitive effects or purposes in the face of
presumptively civil remedies. See id. at 61 (“In order to prevail on the
merits of an ex post facto claim with regard to parole guidelines, a
plaintiff must show that his retroactive application of the new guidelines
‘creates a significant risk of prolonging [his] incarceration’ as compared
to application of the prior guidelines.” (quoting Fletcher v. Reilly,
433 F.3d 867, 877 (D.C. Cir. 2006))). In contexts analogous to the
instant case, the D.C. Circuit affirmed dismissal of a complaint for
failing to meet the heightened “clearest proof” requirement. See, e.g.,
DOES V. WASDEN 29
III. The Majority Correctly Holds that Precedent Has
Not Foreclosed the Claim that Idaho’s SORA Is
Punitive.
I do concur with the majority on the narrow point that the
circuit precedent relied upon by the district court does not
necessarily foreclose at this stage the claim that SORA is
punitive in effect. In particular, the various cases cited by
the district court do not substantively consider the ban for
any registrant to be on or within 500 feet of school buildings
and grounds when children under the age of 18 were present,
and the employment restrictions that follow. See generally
Litmon v. Harris, 768 F.3d 1237, 1240, 1242–43 (9th Cir.
2014) (challenging the in-person, 90-day lifetime
registration requirement for sexually violent predators);
United States v. Elk Shoulder, 738 F.3d 948, 952, 954 (9th
Cir. 2013) (challenging the retroactivity of the Sex Offender
Registration and Notification Act’s registration
requirements); Maciel v. Cate, 731 F.3d 928, 937 (9th Cir.
2013) (concluding in a habeas case involving in part a 2,000-
foot residency restriction that under AEDPA’s deferential
standard of review it was nonpunitive, citing a similar
restriction held to be regulatory in Doe v. Miller, 405 F.3d
700, 718–23 (8th Cir. 2005)); ACLU v. Masto, 670 F.3d
1046, 1057 (9th Cir. 2012) (challenging Nevada legislation
imposing retroactive sex offender registration). Nor does
any circuit precedent consider whether the cumulative effect
of a mix of regulations like Idaho’s might be punitive in toto.
Anderson, 647 F.3d at 1173 (“Anderson and his amicus have failed to
show by the clearest proof that the effects of the law negate the Council’s
intention to establish a civil regulatory scheme.” (emphasis added)
(citation, quotation marks, and brackets omitted)).
30 DOES V. WASDEN
Also particularly noteworthy is the fact that the plaintiffs
in Masto initially challenged legislation prohibiting certain
sex offenders from “knowingly be[ing] within 500 feet of
any place” or “resid[ing] anywhere ‘located within 1,000
feet of any place’ that is ‘designed primarily for use by or for
children,’” Masto, 670 F.3d at 1051—but the state later
represented that “it had no authority under [the legislation]
to apply its movement and residency restrictions
retroactively and that it will ‘absolutely’ not do so in the
future.” Id. at 1064–65. The court dismissed that particular
aspect of the appeal as moot. Id. at 1067. As a consequence,
not only did Masto’s holding pertain to a more limited subset
of statutory provisions than at issue here, but the state in that
case affirmatively distanced itself from defending the
retroactivity of certain provisions similar to those forming
part of the basis of the Does’ challenges in this case.
Thus, given the above, I narrowly concur in remanding
to the district court to determine whether SORA is punitive
in effect and therefore violates the Ex Post Facto Clause,
without the mistaken belief that it is foreclosed by binding
precedent.
Similarly, as to the Does’ double jeopardy claim,
because the Does have incorporated their ex post facto
punitive arguments with respect to their double jeopardy
claim, and because the Double Jeopardy Clause analysis in
this context is essentially “identical to that with respect to
the Ex Post Facto Clause,” Litmon, 768 F.3d at 1242, I
concur with the majority in remanding the double jeopardy
claim for the same narrow reason that I concur with respect
to the Does’ ex post facto claim.
DOES V. WASDEN 31
IV. The Does Have Waived Their Cruel and Unusual
Punishment Claim.
I disagree with the majority that the Does’ cruel and
unusual punishment claim should be remanded. In support
of this argument on appeal, the Does proffer one conclusory
statement, summarily introduce and block quote a case that
has since been reversed on the Eighth Amendment claim, see
Millard v. Rankin, 265 F. Supp. 3d 1211 (D. Colo. 2017),
rev’d sub nom. Millard v. Camper, 971 F.3d 1174, 1186
(10th Cir. 2020), and provide no analysis or further briefing
in relation to SORA or the facts of this case. They offer no
further briefing in their reply. The Does’ failure to
adequately brief this issue warrants its waiver on appeal. See
Indep. Towers, 350 F.3d at 929; D.A.R.E. Am., 270 F.3d at
793 (“We do not need to decide whether this was correct, for
even if the objections were timely, D.A.R.E. and Levant’s
brief on appeal does not argue how resolving them would
have affected the outcome.”).
V. The Does Waived Their Idaho FERPA Claim.
Finally, the Does have waived their Idaho Free Exercise
of Religion Protected Act (“FERPA”) claim. In their
pleadings, the Does include one conclusory paragraph
presenting a “Religion” claim, and it is entirely unclear
whether the claim is state or federal, constitutional or
statutory. 4 In their Prayer for Relief, the Does request a
4
The Does’ “Religion” claim states, in its entirety:
Plaintiffs reallege and reincorporated paragraphs 6–17
as if fully set forth herein and allege that Idaho has
substantially burdened their exercise of religion
without demonstrating that application of the burden
to the person is both (a) essential to further a
32 DOES V. WASDEN
declaration that SORA violates “the First Amendment to the
Constitution” and “the right to practice religion without
governmental interference protected by the Idaho
Constitution,” confirming they never alleged any state
statutory FERPA claim.
The majority holds that the Does’ pleading passes muster
because “it tracks with the language of the statute, and the
standard invoked is only available to Appellants under
FERPA,” and “the district court was obliged to construe the
pleadings in the light most favorable to plaintiffs.” But
construing the pleadings in a light most favorable to
plaintiffs does not mean that “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, . . . suffice”—especially when the plaintiffs
failed to argue those claims before the district court.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The district
court correctly noted that the Does failed to “address FERPA
in the Second Amended Complaint, in their Response to
Defendant’s Motion to Dismiss, or during oral argument.”
Due to their failure to present any FERPA claim in their
pleadings or before the district court, the Does have waived
it. Litmon, 768 F.3d at 1244; Silvas v. E*Trade Morg. Corp.,
514 F.3d 1001, 1007 (9th Cir. 2008) (“an appellate court will
not consider issues that were not properly raised before the
district court” (citation omitted)).
We are not at liberty to fundamentally alter the Does’
poor pleading into an appropriate litigation vehicle. Because
the Does failed not once, not twice, but numerous times
compelling governmental interest; and is (b) the least
restrictive means of furthering that compelling
governmental interest.
DOES V. WASDEN 33
below and on appeal to allege the requisite facts or conduct
the proper (or any) analysis, they have waived their FERPA
claim.
* * *
For the reasons set forth herein, I respectfully dissent
from the majority’s conclusions on the Does’ ex post facto,
FERPA, and cruel and unusual punishment claims, except
with respect to the holding that circuit precedent does not
necessarily foreclose that Idaho’s SORA could be punitive
in effect. As such, I concur with the majority on remanding
the Does’ ex post facto and double jeopardy claims. I also
concur with the majority in its affirmance of the dismissal of
the Does’ remaining claims.