F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

E R N E S T J O S E P H F R

A N C E S C H I , J R ., Attorney , an individual,

Plaintiff-Appellant
,

v.

B E T T Y T. Y E E , President of California F ranchise Tax B oard in her Official Capacity ; G E O R G E R U N N E R , B oard Member of California F ranchise Tax B oard in his Official Capacity ; J E A N S H I O M O T O , Director of California Department of Motor Vehicles in her Official Capacity ; M I C H A E L C O H E N , B oard Member of California F ranchise Tax B oard in his Official Capacity
, Defendants-Appellees. No. 14-56493

D.C. No. 2 :14-cv-01960- CAS-SH

OPI NI ON

A ppeal from the United States District Court for the Central District of California Christina A. Sny der, District J udg e, Presiding

A rg ued and Submitted November 15, 2017

Pasadena, California

F iled April 11, 2018F R A N C E S C H I V

. Y E E 2

B efore: Michael Daly

Hawkins, B arring ton D. Parker, * and Sandra S. I kuta, Circuit J udg es.

Opinion by

J udg e Parker

SUMMARY * *

Tax

The panel aff

i r m e d the district court’s judg ment in an action under 42 U.S.C. § 1983, chall e n gi ng the constitutionality o f Ca l ifornia Revenue and T a x Code § 19195 (which establishes a public list of the top 500 delinquent state tax pay ers) and California Bu siness a nd Professions Code § 494.5 (which p rovides for suspension o f the driver’s license of any one on the top 500 list). The district
court found the statutory scheme constitutional and dismissed the action under F ederal Rule of Civil Procedure 12(b)(6).

The panel first held that the tax pay er was not deprived o f procedural due process b ased on h is contention tha t h e h ad

an inadequate opportunity to be heard prior t o license revocation. The panel ex plained that California provides tax del i n quents with a constitutionally a dequate p rocedure to challeng e the a mount o f their tax delinquency
, e ither before or after the deprivation of a driver’s license.

* T h e Ho n orab le B arrin g to n D. P ark er, U n i ted States Circu it J u d g e f or th e U.S. Co u rt o f

A p p eals f o r th e Seco n d Circu it, sittin g b y d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.F R A N C E S C H I V

. Y E E 3

The p anel n ex t held that the tax pay er was not deprived o f substantive d

ue p rocess based on his claims that the statutory scheme impermissibly b urdened tax pay er’s rig ht to choose a profession, and that th e scheme is retroactive. The panel observed that revocation of a driver’s license does not operate

as a complete prohibit i o n o n one’s a bility to p ractice law. The panel also ex plained that § 4 94.5 does not operate retroactively because it d oes not sanction tax pay e r for past conduct, but for his current r e f u sal to discharg e his tax oblig ations.

The panel was unpersuaded by the tax pay er’s equal protection claim, that the challeng ed statutes impermissibly sing le out tax pay ers w ho f all within the class of California’s 500 larg e st tax delinquents, resulting in unequal treatment o f similarly situated individuals. The p a n el f o u n d a rational basis f or state action ag a inst a citiz en for failing to pay two
y ears’ worth of past-due tax es (as tax pay er had done), g iven California’s leg itimate and sig nificant interest in the prompt collection of tax revenue.

F inally
, the panel rejected the tax p a y er’s contention that the combined effect of the challeng ed statutes is to sing le out the larg est 500 tax debtors for leg islative punishment, amounting to a bill of attainder. T h e p a nel ex p lained that membership in the g r oup of tax pa y e rs subject to suspension
turns o n the continuing f a ct of nonpay

ment, which a delinquent tax p ay er can rectify

.F R A N C E S C H I V

. Y E E 4

COUNSEL

Ernest J

. F ranceschi J r. ( arg ued), F ranceschi L aw Corporation, L os Ang el e s, California, pro se PlaintiffAppellant.

Matthew C

. Hey

n (arg ued), Deputy Attorney General; Stephen L e w, Supervising Deputy Attorney G eneral; Paul D

. Gifford, Senior Assistant Attorney General; Office o f the Attorney General, L o s Ang eles, California; for D e f e n dantsAppellees.

OP INION

PARKER, Circuit J udg e:

This action challeng es the constitutionality o f Section 19195 o f the California Revenue a nd Tax ation Code a

nd Section 494.5 of the California B usiness and Prof e s s ions Code. Section 19195 establishes a public list of the top 500 delinquent state tax p a

y ers who owe in ex cess of $ 1 0 0
, 0 00. I n turn, Section 494.5 provides for suspension of the driver’s license of a tax pay e r o n the delinquent list until full pay ment of the tax oblig ation is arrang ed.

Appellant Ernest J

. F ranceschi, J r., Esq. is a major tax delinquent. Anti ci p a ting the suspension of his driver’s license a fter the publication of the nex t edition of the top 500 list—which would inc l ude him—F ranceschi sued, under 42 U.S.C § 1983, challeng i n g S e ctions 19195 and 494.5 on various fe d e r al c onstitutional g r ounds. The District Court rejected his c laims and dismissed the c omplaint. See Franceschi v. Chiang
, N o. 2 : 1 4-cv-01960-CAS-SH, 2014F R A N C E S C H I V

. Y E E 5

W L 12069866 (C.D. Cal. Aug

. 4, 2 014). F ranceschi appeals and we affirm.

I. B A C K G R O U N D

F ranceschi is an attorney who h as been l i c e nsed to practice law in California since 1984. Appellee B etty Yee is the chairwoman of the Calif o rnia F ranchise Tax B oard (the

“ FTB ” ); appellees G e org e Runner and Michael Cohen a re members of the F TB ; and ap p e l l e e J e an Shiomoto is the director of the California Department of Motor Vehicles.

D es pite being a member of the bar for many y e ars, F ranceschi failed to file any Cal ifornia state income tax returns between 1995 a

n d 2012 and fa iled to pay any state income tax es, penalties, or i n t e rest for those y ears, contending that he owed n o ne. F or each of those y ears, the F TB g ave w ritten notice of proposed d eficiency assessments of tax es, interest and penalties (an “ NPA ”).

C alifornia’s Revenue and T ax ation Code sets forth a framework u nder which a delinquent tax pay er, like F ranceschi, has multiple op p o r t u n i t i e s to challeng e deficiency
assessments. Cal. Rev. & Tax Code § 19031, et seq

. At the outset, the F T B is required to send the tax pay er notice of the
prop osed d eficiency assessment for any tax deficiency it
proposes to a ssess

. I

d

. § 19033(a). The tax pay er may then file a protest within six ty d a y s

. Id. § 19041(a). I f the
tax pay e r files a protest, the F T B must r e c o nsider the
assessment and, if the tax pay e r so requests, g rant the tax pay er

a hearing on the deficiency

. Id. § 19044(a). I f the deficiency is not resolved at this stag e, a tax pay er h as further recourse b y

a p pealing to the State B o ard of Equaliz ation. Id. § 19045. After the State B oard of Equaliz a t i o n rules on the matter, aF R A N C E S C H I V

. Y E E 6

still dissatisfied tax pay e r can then p etition the State B oard o f Equaliz ation for rehearing

. Id. § 19048.

Still further, a tax pay er has an additional o pportunity to be heard o n the validity o f his or her tax delinquency b y p ay ing the tax es and filing a claim for refund with t h e FT B. Id. § 19382. Utili z a tion o f this procedure here would have permitted F ranceschi to both c hal leng e the orig inal
assessments and to retain his driver’s licence w hile doing so. I f the F TB d enied the c laim he c ould have sued for a refund in California Superior Court. F ranceschi concedes that he did
not avail himself of any of these m u l t i p le remedial procedures.

I f, however, a tax pay er like F ranceschi f ails to protest the NPA within six ty day s, the proposed d e f i ciency a ssessment becomes final. Id. § 19042. Once t h e assessment becomes final, the F TB can demand pay ment and the amo u n t owed becomes a lien on the tax pay er’s real property in California. Id. §§ 19049, 19221.

The F TB compiles a list of the top 500 tax delinquents in the state (the “ Top 500 List ”)

. I d

. § 19195(a). Specifically
, Section 1 9195 directs the F TB to “make available as a matter of public record a t least twice each calendar y ear a list of the 500 larg est tax delinquencies in ex cess of o n e hundred thousand dollars ( $ 1 0 0,000)[

. ] ” 1 Id. Prior to placing a delinquent tax pay e r on the Top 5 00 L ist, the F T B is r equired
to provide thirty day s’ notice to the tax pay er. Id. § 19195(d).

1 T h e T o p 5 0 0 L ist in clu d es th e tax p ay er’ s n am e an d ad d ress, t h e

am o u n t o f tax d elin q u en cy , th e tax p ay er’ s o ccu p atio n , an d th e ty

p e, s tatu s,

an d licen se n

u m ber o f an y o ccu p atio n al o r p ro f

essio n al licen se h eld b y th e tax d elin q u en t. Id

. § 1 9 1 9 5 (c).F R A N C E S C H I V

. Y E E 7

I f within thirty day s after this n otice, the delinquent tax pay er does not remit the amount due or make arrang ements with the F TB for pay

ment, the delinquent tax pay er is nam ed o n t he Top 500 L ist. Id.

I mportant for this appeal, effective J anuar y 1
, 2012, Section 494.5 was enacted to provide that a state g overnmental licensing entity “shall suspe n d” a license if a licensee’s name is included o n t h e T op 500 L ist. 2 Cal. B us. & Prof. Code § 4 94.5(a)(1). Specifically
, Section 494.5 provides that, on a t least ninety day s’ notice, the California Department of Motor V ehicles “s h a l l suspend” the driver’s license of any licensee whose na m e is included o n the Top 500 L ist. I

d. § 494.5(a)(2), (b)(1), (f)(1). 3 W ithin this notice period, a delinquent tax pay er can ch alleng e inclusion a nd

se e k to avoid revocation of a driver’s license b y (1) p resenting a w ritten submission that the tax delinque n c y

was p aid, ( 2 ) e n tering into a pay ment ag r eement, o r (3) demonstrating financial hardship. Id. § 494.5(h).

F ranceschi’s cumulative tax deficit enco m p a s s e s t h e y e a r s 1995 throug h 2 012. A fter the e n actment of Section 494.5 in 2012, the F TB
, in April 2012, March 2013, and March 2014, served him with NPAs for the y ears 2010 throug h 2012. F ranceschi then had six ty day s to p r o test these additional proposed deficiencies. He took no steps to do so.

2 Sectio n 49 4 .5 w as o rig i n a lly passed in 2 0 1 2 b u t w as am en d ed in 2 0 1 3 , in a m an n er n o t relev an t h ere.

3 Fu rth erm o re, th e State B ar o f Calif orn ia “ m ay reco m

m en d to ref

u s e t o i ssu e, reactiv ate, rein state, o r ren ew a licen se an d m ay reco m m en d t o

su sp en d a licen se i f a licen see’ s n am e” is in clu ded o n th e T o p 50 0 L ist. Id

. § 4 94 .5 (a)(3 ), (b )(1 ).F R A N C E S C H I V

. Y E E 8

F rances c h i alleg es that he received notice from the F TB dated F ebruary 2014 indicating that he was to be included in the nex t p ublication of the Top 5 00 L ist because h e owed $242,276.73 in back tax es. F ranceschi further alleg es that he anticipated that the DMV w o u ld suspend his driver license after the nex t publication of the Top 500 L ist.

I n an effort to forestall h i s s u spension, F ranceschi sued under 42 U .S.C. § 1 983, asserting claims for violations o f his procedural and substantive due process rig hts, and the E q ual Protect i on Clause. 4 I n addition he c laimed that the 2012
enactment of Section 494.5 constituted a bill o f attainder. See F r a n c eschi
, 2 014 W L 12069866, at *1. F ranceschi a lso
soug h t a prelimin ary injunction seeking to p rohibit the publication of his nam e on the Top 500 L ist and the suspension o f his driver’s license. During the pen d e n cy o f this action, after the District Court d enied F r anceschi’s application for interlocutory relief, the DMV suspended his driver’s license.

The defendants moved to dismiss Fr a n c eschi’s lawsuit under F ederal Rule of Civil Procedure 12(b)(6). The District Cou r t c o n cluded that the statutory scheme F ranceschi challeng ed was c onstit u t ional. I t held, among other thing s, t h a t F ranceschi h ad received adequate notice and a n opportunity to be heard before his license was suspended. I t also determined that the applic a tion of Sections 19195 a nd 494.5 to h im did not violate his substantive due process rig hts by impermissibly b u rdening his rig ht to practice his profession o r having r etroactive effect, did not vio l a t e his

4 Fran cesch i also b ro u g h t a claim f o r v io latio n o f th e P riv ileg e s o r Im m u n ities Clau se w

h ich t h e D istrict Co u rt d ism issed

. On ap p eal, h e ab an d o n s th is claim

.F R A N C E S C H I V

. Y E E 9

equal protection r ig hts, a nd did not constitute a b ill o f attainder. Id. at *1–*13. According ly
, the District Court denied F rancesch i ’ s request for injunctive relief a nd dismissed his lawsuit.

This appeal followed. W e review de novo th e D i s trict Court’s decision to d ismiss F ranceschi’s c omplaint under Rule 12(b)(6). See Manzarek v. St. Paul Fire & Marine Ins. Co.
, 519 F .3d 1025, 1030–31 (9th Cir. 2008).

II. D I S C U S S I O N

A. P rocedural Due P r o cess

F ranceschi’s p r ocedural d ue p roces s claim h a s two el e m e nts. H e must plausibly alleg e: “(1) a deprivation of a constitutionally protected liberty or property interest, a nd (2) a denial o f adequate p rocedural protections.” Hufford v

. McEnaney 249 F

. 3d 1 142, 1150 (9th Cir. 2001) ( c i t ation omitted). Most licenses are constitutionally protected property a

nd cannot be taken a

w ay without pro c e d u r al d ue process required by

the F ourteenth A mendment. S e e Bell v

. Burson
, 402 U.S. 535, 539 (1971). “[ T ] h e D u e Process Clause applies to the deprivation o f a driver’s license by the State[ .] ” Dixon v. Love , 431 U.S. 105, 112 (1971).

The essence of procedural due p rocess is that “individuals whose property interests are at stake are entitled t o ‘ n o tice and an o p p o r t u n ity to be heard.’” Dusenbery v. United States
, 5 34 U.S. 161, 167 (2 0 02) (quoting U nited States v

. James Daniel Good R eal Prop.
, 510 U.S. 43, 48, (1993)). I t is well-established that b e c a u s e due p rocess is a flex ible concept, “[ p] recisely what procedures t h e D ue Process Clause requires in any g iven case is a f u nction of contex t.” BrewsterF R A N C E S C H I V

. Y E E 10

v. B d. o f Educ. of Lynwood Unified Sch. Dist.
, 149 F .3d 971, 983 ( 9th Cir. 1998); see also Morrissey v. Brewer
, 408 U.S. 471, 481 (1972).

On appeal, F ranceschi advances two main arg uments why the challeng ed statutory scheme p rovides inadequate process prior to the d eprivation of his driver’s licens e

. Fi rst, he
arg ues that Section 494. 5 does not provide an adequate opportunity

to be heard prior to license revocation. Second, he arg ues that Section 494.5’ s p ay ment plan and financial hardship ex emptions ar e i llusory

. Neither of these contentions has merit.

The Supreme Court has held that a driver’s license can be revoked without a p r e

- revocation hearing

. See Dixon
, 431 U.S. at 1 12–15. F ranceschi has no response to D ixon

. He nevertheless g oes on to arg ue tha t h e s h ould have been afforded a pre-deprivation hearing

. Specifically , F ranceschi
arg ues that at such a pre-deprivation hearing
, he would have been able to demonstrate that his actual tax delinquency was below the threshold $ 100,000 for inclusi on on the Top 500 L ist when time-barred assessments, interest and penalties on time-barred assessments are ex cluded. 5

5 S p ecif i cally , Fran cesch i arg u es th at a su b stan tial am o u n t o f h is tax d elin q u en cy i s tim e- b arred b y S ectio n 1 3 6 8 0 o f th e Calif o rn i a R ev en u e & T ax atio n Co d e, w

h ich estab lish e s a ten y ear statu te o f lim itatio n s. Ho w ev er, th is is in co rrect. S ectio n 1 3 68 0 is in ap p licab le b ecau s e i t o n ly

co n cern s th e co l lectio n o f g if t an d e s t a te t ax es, n o t th e co llectio n of in co m e tax es, as th e District Co u rt co rrectly co n clu d ed

. S ee Cal. R ev

. & T ax

. Co de § 1 3 6 8 0 (ref

errin g to t h e “ co l lectio n o f an y tax im p o sed b y t his
p a rt ” (em

ph asis ad ded )); see g en era l l y C al. Rev

. & T ax

. Co d e, P art 8 ( r ef errin g to “ Gif

t an d Death tax es”). W e n o te th at to t h e ex te n t t h a t Fran cesch i can ad v a n c e a cred i b le arg u m en t th at h is tax d elin q u en cy is tim e- b arred , h e is f

ree to d o so in a ref

u n d actio n

.F R A N C E S C H I V

. Y E E 11

F ranceschi’s arg uments overlo o k the fact that he had a readily available, constitutionally v alid, pre-deprivati on opportu n i t y t o prevent the suspension o f his license. After receipt of the notice of revocation and before h is license was suspended, F r anceschi could have challeng ed his threatened suspension by pay ing his tax es and filing a refund c laim with the F TB

. See Cal. Rev. & Tax Code § 1 9382. T he pay ment of his tax liability would h a v e a llowed h im to r etain his dr i v e r ’s license. He would then have the opportunity to file a refund claim and challeng e the orig inal tax assessment. I n the event the F TB d enied his r efund claim, he could still obtain r elief by suing for a refund in Califor n ia Superior Court.

Courts have consistently held that pay first, litig ate later procedures such as these satisfy due process in the contex t o f
tax collection. See Todd v. United States
, 849 F

. 2d 365, 369 (9th Cir. 1998) (collecting Supreme Court cases holding that in the federal contex t, “tax pay ers do not have the righ t to a hearing prior to collection efforts by the I RS”); see also Bob Jones Univ. v. Simon
, 4 16 U.S. 725, 746–48 (1974); Aronoff

v. F ranchise Tax Bd.
, 3 83 P.2d 4 09, 4 10 ( C a l

. 1 9 63) (“The due process clause does n o t g u ar a n t ee the rig ht to judicial review of tax liability before pay ment.” (quoting Mode r n Barber Colls. v. Cal. Emp’t S tabilization Comm’n
, 192 P.2d 916, 919 ( Ca 1

. 1 9 48))). More g enerally
, where tax liability is involved, p ostponement of a judicial inquiry is not a denial of due process if the opportun i ty f or an ultimate judicial determination of the tax liability is adequate. See Phillips v

. Comm’r of Internal R evenue , 2 8 3 U.S. 589, 595 (1931) (observing that when an “ adequate opportunity is afforded for

a l ater judicial determination of the leg al rig hts, summary proceeding s to secure p r ompt performance of pecuniary oblig ations to the go v ernment h ave been consistentlyF R A N C E S C H I V

. Y E E 12

s ustained”). California, therefore, p rovides tax delinque n t s with a constitutionally adequate p rocedure to challeng e the
amount of their tax delinquency
, either before or after the deprivation of a license under Section 494.5.

Moreover, as noted, F ranc e s c h i h a d m u l t i p l e o p p o r

t u n ities
to challeng e the tax deficiencies that the F TB proposed at the time o f their assessment a n d w e ll before he faced license suspension. F or each of the y ears from 1995 thro u gh 2012, for which F ranceschi f

ailed to file a tax return, he received written n otices of proposed deficiency assessments. F urther, F ranceschi does not contest that he received these n otices a nd i n f a ct concedes that he became oblig ated to the F TB as far back as 1 9 95. These procedures afforded him multiple opportunities to challeng e the validity of the assessments that le d to the revocation of his driver’s license. F o r whatever
reason, he failed to avail himself of any of them. W hat F ranceschi seeks is a forum in which t o d i s p u te his tax delinquenci e s w e ll after the time they become final. F ranceschi does, however, have access t o s u ch a forum, but must satisfy

his tax deficiencies first.

This result is cong ruent with the three-part procedural d ue process test that the Supreme Court established in Mathews

v. Eldridge
, 4 2 4 U

. S. 319 (1976). See, e.g. , G ant v. Cty. of Los Angeles
, 772 F .3d 608, 619 n.12 ( 9th Cir. 2014). Under Mathews we consider (1) “the pr i v a t e i nterest that will be affected by the official action”; (2) “ the risk of an erroneous deprivation of such interest throug h the procedure used, and the probable value, if any , of additional o r s u b stitute procedural safeg

uards”; and (3) the g overnment’s interest in minimiz ing the cost and bu r d en of additional or substitute procedures. 424 U.S. at 335.F R A N C E S C H I V

. Y E E 13

F irst, the p rivate interest at issue here is a driver’s license and, while subject to a level o f constitutional pro t ection, a driver’s license is not a fundamental rig ht a n d c an be suspended without a prior h e a r ing

. See Dixon
, 431 U.S. at 113–15. Second, the r isk here that the challeng ed statut o ry scheme will result in the erroneous deprivation of a protected interest is low. The facts supporting the suspensi o n have already been established throug h p rior pro c e eding s with adequ a t e p rocess involving multiple opportunities to challeng e the deficiency assessments. Cf. Air N. Am. v. Dep’t of Transp.
, 937 F .2d 1427, 1438 (9th Cir. 1991) (“[ T] he d ue process clause does n ot require a hearing when . .

. there a

re

n o f actual q uestions to resolve.”). F ranceschi nonetheless
arg ues that he did n ot have the same incentive to challen g e the deficiency assessments before Section 494.5 e stabl i s h ed that his license could b e r e v o k ed. To the ex tent that F ranceschi sug g ests that his lack of incentive to challeng e the initial a ssessments created a g r eater r isk of erroneous deprivation, we think that risk is adequately mitig ated by the availability of a r efund action under Section 19382. F inally
, California obviously has a strong interest in revenue collection, and the challeng ed statutory scheme appropriately reflects the importance o f t h i s interest. See Jolly v. United States
, 764 F .2d 642, 646 (9th Cir. 1985). I n sum, we readily

c onclude that the Mathews factors h ave been met and that F ranceschi was not denied procedural due process.

B. Substantive Due P rocess

F ranceschi contends that the statutory scheme set forth in Sections 19195 and 494.5 violates his substantive due process rig hts in two respects: f

i rs t , by impermissibly burdening his chosen profession, and, s e c ond, by acting retroactively

. Neither arg

ument has merit.F R A N C E S C H I V

. Y E E 14

1. Burden on P rof ession

T he Due Process Clause of the F ourteenth Amendm e n t includes “a substantive component that protects c ertain individual liberties from state interference[ .] ” Mullins v

. Oregon
, 57 F .3d 789, 793 ( 9th Cir. 1995); see also Martinez

v. City of Oxnard
, 3 3 7 F. 3 d 1091, 1092 (9th Cir. 2003) (per curiam) (observing that the D ue Process Cl a u s e protects individuals from state action that “interferes wi t h rig hts implicit in the concept of ordered liberty ” (internal quotation marks and citation omitted)). The r ang e of liber t y i nterests that s u b stantive due process protects is narrow and “[ o ] nly those aspects of liberty that we as a society traditionally have protected as fundamental are included within the substantive protection of the Due Process Clause.” Mullins
, 57 F

. 3 d at 793. Substantive due process has, therefore, been larg ely confine d t o protecting f

undamental liberty interests, such a s marriag e, procreation, contraception, family relationships, child rearing
, education and a person’s bodily integ r ity
, which

are “deeply rooted in this Nation’s his t o ry and tradition.” Moore v. E

ast Cleveland
, 431 U .S. 494, 503 (1977); see also Planned Parenthood of S e. Pa. v. Casey
, 5 05 U .S. 833, 851 (1992).

A “rig ht” to drive to w ork does not resemble any of these categ ories. To b e sure, the liberty componen t of the Due Process Clause inc l u d es a g e neraliz ed r ig ht to choose one’s fi e l d of employ

ment, but that rig ht is subject to reasonable
g overnmen t reg ulation. Conn v. Gabbert
, 526 U.S. 286, 291–92 (1999) (collecting cases). “[ I ] t is well-recog n iz ed that
t he pursuit o f an occupation or profession is a pr o t e c t e d liberty interest that ex tends across a bro a d r a n ge of lawful occupations[ ,] ” althoug h the precise contours of this liberty interes t h a v e not been defined. Dittman v. California
,F R A N C E S C H I V

. Y E E 15

191 F

. 3d 1020, 1029 (9th Cir. 1999) (quoting W edges/Ledges of Cal., Inc. v. City of Phoen ix
, 24 F .3d 56, 65 n.4 (9th Cir. 1994)). W hat is clear i s that, as observed by the Supreme Court, “the line o f authorities establishing the liberty interest [ in pursuing a profession] ‘ all deal[ ] with a complete prohibition of the rig ht to eng ag e in a calling [ .] ’” Id. (quoting Conn
, 526 U.S. at 292).

F ranceschi arg ues that the enforcement of Sections 19195 and 494.5 violates his liberty interest in the pursuit o f his profession because the ability to drive is essential to a “meaning ful” pursuit o f the p ractice of law an d
, t h u s , the suspension of an atto rney ’s driver’s license for reasons unrelated to public safety and so l e l y attributable to tax indebte dness materially interferes w ith his constitutionally
p r o t e c t e d l i b e r t y i n t e r e s t to practice law wi t h o u t inconvenience.

This contention h as no merit for the ob v i o u s reason that the revocation of his driver’s license doe s n o t o p erate as a complete prohibition on his a b ility to p ra c t ice law, which it
must to violate substantive due process. F ranceschi attempts to sidestep this straig htfo rw a r d requirement by a rg uing that

a driver’s license is “ i n dispensable” to the practice of law while at the same time conceding that “it may be possible to
g et to some courts on a bus or other p ublic transportation.” He nevertheless arg ues doing so w ould be burdensome a nd time c onsuming

. No doubt an ina b i l i t y to drive oneself around L os Ang eles c ould make the practice o f law more difficult. However, F rances ch i s till has access to public transit, tax is, or services such as L y ft o r Uber. A c cording ly
, whatever burden may ex i s t does not a mount to a “complete prohibition” on F ranceschi’s ability to practice law, and thus, does not r i s e t o a violation of substantive due p rocess. SeeF R A N C E S C H I V

. Y E E 16

Lowry v

. Barnhart
, 329 F

. 3d 1 0 1 9, 1023 (9th Cir. 2 003) (holdi ng that an “indirect and incidental burden on professional practice is far too removed from a c o mplete prohibition to support a due process claim”).

To resist this conclusion, F ranceschi c ites Arizona Dream Act Coalition v. Br e wer , 757 F .3d 1053 (9th Cir. 2014), for the pr o p o s i t i on that the inability to obtain a driver’s license will likely result in irrepa r a b l e h arm. However, Arizona Dream A ct Coalition is inapposite. T here, the plaintiffs were undocumented immig rants who were broug ht to the United Stat e s as children and w ere a llowed to r emain p ursuant to a federal prog ram then in ex istence (the Deferr e d A ction for Childhood A r r ivals prog ram). Id. at 1057–58. A riz o na officials implemented a policy that denied driver’s licenses to these individuals. Id. at 1058. T h e plaintiffs soug ht a preliminary injunction prohibiting the implementation of the policy
, a rg uing that it violated the Equal Protectio n Clause and the Supremacy Clause. I d. T h e district court concluded that the policy violated the E q ual Protect ion Clause but nonetheless d e nied the request for a p reliminary injunction. Id. I n reversing
, this Court con c l u ded that the plaintiffs demonstrated a likelihood of success on their equal protection claim and were likely to su ffer irreparable harm unless the policy was e njoined because the l a c k of a driver’s license “diminished their opportunities to pursue their chosen professions.” Id. at 1068.

H er e, F ranceschi c ontends that in A rizona Dream A c t Coalition
, this Court implic i t l y recog niz ed that the deprivation o f a driver’s license does not need t o a mount to

a “complete prohibition” on the ability to pursue a profession f o r substantive due process purposes. A ll that needs to be shown, h e c ontends, is that it o p er a t e s as a “ limitation” o rF R A N C E S C H I V

. Y E E 17

“dimini s hes opportunity ” to pursue a chosen profession. However, Arizona Dream Act Coalition say s no thing o f the
sort. On the c ontrary , Arizona Dream Act Coalition involved

an equal protection claim and sh e d s l ittle lig ht on F ranceschi’s substantive due process claim. Concluding that, where plaintiffs have shown a likelihood of success o n t he merits of their equal p rotection claims, the denial of a driver’s license w ould ca u s e i r reparable harm as required to support the issuance of an injunction, does n ot establish t hat the denial of a driver’s license w ould amount to a substantive d ue process violati on. Concededly
, the revocation o f F ranceschi’s driver’s license will complicate his law practice. B ut t his complication is n ot a substantive due process violation si n c e it does not amount to a complete p rohibition on his ability

to practice law. See Lowry , 329 F

. 3d at 1023.

Even if Sections 1 9195 a nd 494.5 operated as a de facto complete prohibition on F ranceschi’s a b ility to practice law—which they d o not—the sections would still withstand constitutional scrutiny

. A state may r e gu l ate e ntry into a profession, so long as the reg ulation is rationally related both
to a leg itimate state interest a n d to the applic a n t ’ s fitness o r capacity to practice the profession. Dittman
, 1 91 F

. 3d at 1030. W hen r eviewing a cha l l e n g e to a leg islative act that does not infring e on a fundamental r ig ht, rational basis r eview applies, under which we need only determine “whether the leg islation h as a ‘conceivable basis’ on which it mig ht survive constitutional scrutiny .” Id. at 1031 (quoting Lupert v. Cal. State Bar , 761 F .2d 1325, 1328 (9th Cir. 1985)).

Here, the ability t o p r ac t ice law in California is not a fundamental r ig ht, and Section 494.5 is related to a leg itimate
state interest: the collection o f tax revenue. The g overnment obviously has a powerful interest in the prompt collection o fF R A N C E S C H I V

. Y E E 18

revenue. See Phillips
, 2 83 U.S. at 5 9 7

. T h e “[ f] ailure to honor leg al commitments and oblig ations is a proper g r ound f or refusing to issue a certificate as to the possession of t h e requisite c haracter and moral f itness” for the practice of law. Dittman
, 191 F .3d at 1032 (alteration in orig inal) (citat ion omitted). I t is therefore rational for California to require that those who practice law be c u r re n t on tax oblig ations as a condition of licensure, as their failure to do so c ould speak to moral charact er

. See id. ; c.f. People v. Cully
, 675 N.E.2d 1017, 1024 ( I ll. Ct. App. 1997) (noting that “[ i] f the licensee culpably does not repay [ h is student loan]
, this c alls his moral character into question and cou l d c onstitute conduct that defrauds o r harms the p ublic”). According ly
, the challeng ed statutory scheme does not impermissibly burden F r anceschi’s chosen profession.

2. Retroactivity

F ranceschi arg ues that the statutory scheme— a n d specifically Section 4 94.5’s 2012 enactment—violates substantive due process b y operating r etroactively to impose

a penalty that did not ex ist at t h e t i m e his tax deficiencies

w e r e first assessed in 1 995. A statute does not o p e r a t e retroactively “mere l y b e cause it is applied in a case a rising from conduct antedating the statute’s enactment, o r upsets

ex p ectations based in p r i o r law.” Landgraf v. USI Film Prods.
, 511 U.S. 244, 269 (1994) (internal citation omitted). A s t a t u te operates r etroactively when it “attaches new leg al
consequences to events completed before its enactment.” Id.
at 2 69–70; see also Gen. M otors Corp. v. Romein
, 5 0 3 U

. S

. 181, 191 (1992).

Se ct i on 4 94.5 does not operate retroactively because it does not sanction F ranceschi for past conduct: the incurrenceF R A N C E S C H I V

. Y E E 19

of past-due tax oblig ations. Rather it is his current refusal to discharg e his tax o bl i ga t ions that e x poses him to license revocation. I n o ther words, the effective date of Sect i on 49 4 .5 is not dispositive because Section 494.5’s sanction is dependent on a tax pay er’s current conduct (whether a tax pay e r takes steps to discharg e a past-due tax obl i g a tion) and n ot on past conduct ( t h e i n c u rrence of a past-due tax oblig ation). Consequently
, Section 494.5 does not attach new leg al consequences to events completed before its enactment. Moreover, after Section 494.5 w as enacted, F ranceschi received additional proposed assessments in April 2012, March 2013, and March 2014, all of which he ig n ored. F o r these reasons, this substantive due process claim fails.

C. Equal P rotection

The F ourteenth Amendment p rovides t h a t “ [n ]o s t a t e shall

. . . deny to any person within its juri s d i c t i o n the equal protection of the laws.” U .S. Const. amend. XI V, § 1. Governmental conduct, such as revocation of a driver’s license, that “neither p roceeds along suspect lines n o r infring es fundamental constitutional r ig hts” is subject to rational basis r eview and, as such, does not violate the E q ual Protection Clause “if there is a ny reasonab l y c o nceivable
state of facts that could provide a rational basis for the classification.” FCC v. Beach Commc’ns, Inc.
, 508 U.S. 307, 313 (1993) (citation omitted); see also Armour v. City of Indianapolis , 566 U.S. 673, 680 (2012).

F ranceschi a

r gues that Section 494.5, tog ether with Section 19195, impermissibly sing les out tax pay ers who fall within the class of California’s 500 larg e s t t ax delinquents ( p rovided they owe more than $100,000). F ranceschi contends that b ecause this selection criteria has the effect o fF R A N C E S C H I V

. Y E E 20

meting out unequa l treatment to similarly situated individuals, it is arbitrary and unreasonable. 6

W e h ave no d ifficulty in concluding that a citiz en’s failure for nearly twenty y ears to pay unusually larg e amounts of past-due tax es supp l i e s a rational basis for the state’s
act i o n

. This is especially so because leg islatures have particularly “broad latitude in creating classifications a nd distinctions in tax statutes.” Armour
, 566 U.S

. a t 680 (quoting R eg a n v. Taxation W ith Representation of W

ash.
, 461 U.S. 540, 547 (1983)).

California h a s a leg itimate—and sig nificant—interest in the prompt collection of tax r evenue. See Jolly
, 764 F

. 2d at 646. As the District Court correctly concluded, the California le gi slature’s decision to sing le out the 500 individuals a nd corporations with the larg est tax delinquencies v i a Section 19195 a nd then impose sanctions on that g roup t h roug h Section 494.5 is rationally related to California’s leg itimate interest in the prompt collection of tax revenue. Althoug h the California leg islature could have e stablished a n i ncrementally hi gh er or lower threshold for tax d elinquency
, that the leg isla t u r e chose a $100,000 c u toff does not render the statutory scheme unconstitu t i o n a l

. S e e Beach Commc’ns
, 508 U.S. at 316 ( n o t i ng that “the fact [ that] the line mig ht have been drawn d i f

ferently at some points is a matter for leg islative, rather than judicial, consideratio n ” (alteration in

6 Fo r th e f

irst tim e o n ap p eal, Fran cesch i arg u es t h at t h e p u

b l ic d isclo su re o f h is alleg ed tax liab i lity o n th e T o p 50 0 L ist v io lates h is rig h t to p riv acy u n d er th e C alif o rn ia Co n stit u t io n

. W e d eclin e t o reach th is

co n ten tio n

. S

ee S mith v. Ma rsh
, 1 9 4 F.3 d 1 0 4 5
, 1 0 5 2 (9 th Cir. 19 9 9) (o b serv in g th at, as a g e n eral ru le, th e co u rt d o es n o t co n sid er arg u m en ts th at are raised f

o r th e f irst tim e o n

ap p eal).F R A N C E S C H I V

. Y E E 21

o r i gi n al) (quoting U.S. R.R. Ret. Bd. v. F ritz
, 449 U.S. 1 6 6
, 179 ( 1980))). F or these reasons , F ranceschi’s equal protection claim fails.

D. Bill of

Attainder

F ranceschi nex t c ontends that Sections 19195 and 494.5 tog ether constitute a bill of attainder. T h e Cons t i t u t i on provides that “[ n] o State shall

. . . pass any B ill o f A t t a i n d er[ .] ” U.S. Const. art. I
, § 10, cl. 1. 7 A bi l l o f attainder is “a law that leg islatively determines g u ilt a nd infl i cts punishment upon an identifiable individual without provision of the p r o t ections of a judicial trial.” SeaRiver Mar. F in. Holdings Inc. v. M

ineta
, 3 0 9 F

. 3 d 662, 668 (9th Cir. 2002) (quoting Nixon v. Adm’r of Gen. Servs. , 433 U.S. 425, 468 (1977)); see also F o wler Packing Co., I

nc. v

. Lanier , 844 F .3d 809, 817 (9th Cir. 2016).

The key features o f a bill of a ttainder are “that the statute (1) specifies the affected persons and (2) inflicts punishment (3) without a judicial trial.” SeaRiver
, 309 F .3d a t 668 (citing Selective Serv. Sys. v

. Minn. Pub. In t e rest Research Grp.
, 468 U .S. 841, 847 (1984)). The “ clearest proof” is r equired before courts can c o n c l u de that a leg islative enactment is a s

a bill of attainder. Id

. ( c i t i n g Communist P a rty of United

7 T h e Un ited States Co n stitu t io n co n tain s tw o sectio n s p ro h ib itin g th e p assag e o f a b ill o f attain d er, o n e aim ed at th e f ed eral g o v ern m en t (A rticle I, Sectio n 9 , Clau se 3 ) an d o n e aim ed at th e states (A rticle I, Sectio n 1 0
, Clau se 1 ). T h e sam e an aly sis ap p lies to b o th sectio n s. S ee S ea River Ma r. Fin . Ho ld in g

s In c. v. Min eta , 3 0 9 F.3 d 6 6 2 , 6 7 2 n .6 (9 th Cir. 20 0 2); see

a lso Fo wler Pa ckin g Co

., In c. v. La nier
, 8 4 4 F.3 d 8 0 9
, 8 1 6 n .5 (9 th Cir. 2 0 1 6 ). A cco rd in g ly
, w e r ely o n cases in terp retin g eith er sectio n in assessin g th e co n s titu tio n ality o f Sectio n s 1 9 19 5 an d 4 9 4 .5

.F R A N C E S C H I V

. Y E E 22

States v. Subversive Activities Contr o l B d

. , 367 U .S. 1
, 83 (1961)).

Not e very law which burde n s s o m e persons or g roups is

a bill of attainder; after a ll
, p r a c t ically every law burdens

someone. “ How the class is desig nated and what purposes the law f urthers go v e r

ns the specificity analy sis[ .] ” United States v. Munsterman
, 177 F .3d 1139, 1142 (9th Cir

. 1999). “I f a law merely desig n ates a properly g eneral characteristic . . . and then imposes upon all who h ave that characteristic a remedial measure r eas o n a bly calculated to achieve a nonpunitive purpose,” there is no attainder. I d

. ( q uoting L aurence H. Tribe, Am e r i c a n Constitutional Law § 10-4 at 643 (2d e d. 1988)). F ranceschi contends tha t the combined effect of Sections 19195 and 494.5 is to sing le out the larg e st 500 tax debtors for leg islativ e p u n i shment a nd for these

reasons the sections constitute a b ill of a t t ainder. This contention has no merit.

I n considering w hether a statute sing les o ut a person o r class, we look to various established g uideposts. See SeaRiver
, 309 F .3d a t 669. “F irst, w e l o o k to whether the
statute or provision ex plic itly names the individual or c lass,

or instead describes the affected population in terms o f
g eneral applicability

. ” Id. (citation o mitted). Sections 19195 and 4 9 4

. 5 d o not e x pressly name F ranceschi. He does not contend that when the provisions were enacted any one in the leg islature had him in mind as o pposed to the thousands o f other residents who were persistently delinquent i n their
tax es. To the contrary , Section 19195 is couched in g eneral
terms and Section 494.5 simply refers to Section 19195. Acc o r ding ly
, this f

actor weig hs ag a inst the conclusion that the Sections constitute a bill of attainder.F R A N C E S C H I V

. Y E E 23

Second, w e determine “whether the identit y of the individual o r class was ‘easily ascertainable’ when the leg islation was passed.” Id. (quoting United States v. Brown
, 381 U.S. 437, 448–49 (1965)). T h e g roup of the 500 larg e st tax delinquents with d elinq u e ncies over $100,000 w a s no doubt ascertainable at the time Section 494.5 was enacted, a s the list could have been calculated. B ut this fact adds little to the analy sis because the list was fluid. Such tax pay ers may have paid their tax es, prevailed in litig ation, died, or filed for bankruptcy

. T h us, at the time Section 494.5 was enacted, there was manifest uncertainty as to who would be a ffected.

“Thir d
, we ex amine whether the leg islation defines the i n d i v i dual class ‘by past conduct [ that] operates only as a desig nation o f particular persons.’” Id. (alteration in orig inal) (quoting Selec tive S

erv. Sys.
, 468 U.S. at 847). “ Thus, this third inquiry seeks to determine w h e ther the statute is retrospective, or whether it carries the potential to encompass

a larg e r class than the individual o r g r oup alleg edly targ eted.” Id. at 670.

As n o ted, the Top 500 L ist is n o t static. Section 19195 directs the F TB to update the list twice a y ear, an d t h e 500 larg e st tax d elinquents w i l l not necessarily remain the

same on different versions of the L ist. I n this way , Sections 19195 and 494.5 can a ffect a g rowing number of persons over time and their effect is not limited to any particular g roup in

ex istence at the time of the statute’s e nactment. A c cording ly
, this factor weig hs ag ainst the conclusion that Sections 19195 and 494.5 specify

the affected persons.

F ranceschi, however, arg ues that the To p 500 L ist’s f l u idity is “of no moment” because the categ ory itself, the “Top 50 0 t a x delinquents,” remains constant even thoug hF R A N C E S C H I V

. Y E E 24

particular members “come and g o” f rom the list. I n support, F ranceschi cites Brown
, 381 U.S. 4 37. This arg ument makes

no sense. I f names “come and g o” from a list, then the list does not re m a i n constant. Moreover, F ranceschi misunderstands both Brown and the specificity requirement. I n Brown
, the Supreme Court held that a statute that imposed criminal liability u p on Communist Party members w ho became officers in labor unions was a bill of attainder. Brown , 381 U.S. at 456

) 62. I n doing so the Supreme Court rejected the arg u ment that th e c h al leng ed statute did not

c o n s t i t ute a bill of attainder because it did not “inflict[ ] it s deprivation” upon named individuals b ut instead targ e ted the membership of the Communist Party

. Id. at 4 61 (“W e cannot ag ree that the fact that [ th e challeng ed statue] inflicts its deprivation upon th e membership o f the Communist Party rather than upon a list of named individuals takes it o ut of the categ ory of bills o f attainder.”). However, the Supreme Court in Brown held that certain individuals were targ eted, and, as such, the specificity r equirement was clearly met ther e

. S ee id. at 452 (“The moment [the challeng e d statue] was enacted, respondent was g iven the choice of d eclining a leadership position in his union or incurring crimin a l liability .”). Telling ly
, the statute in question in Brown had a trailing fivey ear disqualification period: it disqualified from holding union o f fice not just p resent membe r s of the Communist Party but also any one who within the previous five y ears h ad been a member of the Com m u nist Party
, an easily

as certainable g roup. See id. at 458. The situation here is different. F ranceschi does not dispute that the g r oup o f
tax pay e rs who find themselves subject to suspension is not static. And even more importantly
, these tax pay ers have the
power to escape license revocation by fulfilling their tax oblig ations.F R A N C E S C H I V

. Y E E 25

“F inally
, w e review whether the past conduct defining the affected individual or g roup consists of ‘irrevocable ac ts committed by them

. ’ ” S

e a River
, 309 F .3d at 669 (quoting Selective Serv. Sys.
, 468 U.S. a t 848). “I f the defining act is irrevocable, the individual or class may not escape the effect

o f the leg islation by correcting the p ast conduct, t h e r e b y

ex iting the targ eted class.” Id. at 671 (citing Se lective Serv. Sys.
, 4 6 8 U .S. at 851). Sections 19195 and 494.5 do not focus o n irrevocable conduct. The non-pay ment o f delinquent tax es is the action that led F ranceschi (and others)
onto the Top 500 L ist and to license suspension. A tax pay er

can escape p ublication on the Top 5 00 L ist (and the attendant consequences) by
, among other way s, making other pay ment arrang ements with the F TB for full satisfact i on of the tax delinquency
, filing f

or bankruptcy protection, or making
pay ment arrang ements satisfactory to the F TB

. See Cal. Rev. & Tax

. Code § 19195(b). F ranceschi arg ues that it “appears” that the ex emptions and releases fro m a Top 500 L ist a re g ranted or denied in a “completely a r bitra r y and capricious manner,” and that, as such, the methods which the statute provides for ex iting the list are “larg ely illusory .” However, F ranceschi does not alleg e that he ev e r a p p lied for or was denied a release from t h e T op 500 L ist, arbitrarily o r otherwise. I n the absence of plausibly pleaded alleg ations o f arbitrary and cap ricious administration of the Top 500 L ist,

we need not entertain his bare a rg ument o n appeal that the list is administered in such a manner.

I n sum, far from being trig g ered by past and ineradicable actions, license suspension as a r esult o f Sections 19195 a nd 494.5 turns on the continuing fact of nonpay ment, something which a delinquent tax pay er can rectify

. Selective Serv. Sys.
, 4 6 8 U.S. at 851 (citing Communist Party
, 367 U.S. at 8 1 ). B ecause all the relevant g uideposts point ag ainst F ranceschi,F R A N C E S C H I V

. Y E E 26

and because he has unquestionably not adduced the “clearest proof” that the statutory scheme constitutes a bill of attainder,

we reject his contention that the statutory scheme constitutes a bill of attainder. 8

III. C O N C L U S I O N

F or th e s e r easons, we A F F IRM the judg ment of the District Court. 9

8 B ecau s e Fran cesch i f

ails to sh o w th at Sectio n s 1 9 19 5 an d 4 9 4

. 5

m eet th e sp e c i fi c a t i o n p ro n g o f a b ill o f attain d er claim
, w e n eed n o t

co n sid er w

h eth er t h e s tatu to ry sch em e in f l icts p u n ish m en t o r f

ail to p ro v id e a j u d icial t

rial. S ee F o wler Pa ckin g Co
., 8 4 4 F.3 d at 8 0 9 (ex p lain in g th at w

h ere o n e elem en t is n o t satisf ied
, “ w e n eed n o t ad d ress

w h eth er [th e statu tes] satisf y th e o th er tw o elem en ts o f a b ill o f attain der claim ”).

9 W e G R ANT F ran cesch i’ s u n op p o se d m o tio n s, f iled Feb ru ary 2 4
, 2 0 1 5 an d Fe b ru ary 2 7
, 2 0 15
, to tak e j u d icial n o tice o f o rd ers in o th er p ro ceed in g s. S

ee Un ited S ta tes v. Na va rro , 8 0 0 F.3 d 11 0 4, 1 1 0 9 n .3 (9 th Cir. 2 0 1 5 ). W e also G RANT A p p ellees’ u n o p p o sed m o tio n , f iled A p ril 3 0
, 2 0 1 5
, to tak e j u d icial n o t ice o f l eg islativ e h isto ry p ertain in g to Sectio n 4 9 4 .5

. S ee An derso n v. Ho ld

er , 6 7 3 F.3 d 1 0 8 9
, 1 0 9 4 n .1 (9 th Cir. 2 0 1 2 ).