FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOES, John and Jane, 1–134,

Plaintiff-Appellant,

v.

LAWRENCE WASDEN, Attorney 

General of the State of Idaho; KEVIN 

KEMPF, Director of the Idaho 

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; 

No. 19-35391

D.C. No.

1:16-cv-00429-

DCN

OPINION
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 inperson 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 asapplied 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 SinenengSmith 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 contentbased 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 nonparties 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 asapplied 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. SinenengSmith, 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 SinenengSmith 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.