AYMAN LATIF, MOHAMED SHEIKH ABDIRAHM KARIYE, RAYMOND EARL KNAEBLE IV, FAISAL NABIN KASHEM, ELIAS MUSTAFA MOHAMED, STEPHEN WILLIAM WASHBURN, ABDULLATIF MUTHANNA, NAGIB ALI GHALEB, MASHAAL RANA, IBRAHEIM Y. MASHAL, SALAH ALI AHMED, AMIR MESHAL, and STEPHEN DURGA PERSAUD, Plaintiffs,
ERIC H. HOLDER, JR., in his official capacity as Attorney General of the UNITED STATES; ROBERT S. MUELLER III, in his official capacity as Director of the Federal Bureau of Investigation; and TIMOTHY J. HEALY, in his official capacity as Director of the Terrorist Screening Center, Defendants.
STEPHEN M. WILKER, Tonkon Torp LLP, Portland, OR, HINA SHAMSI, BEN WIZNER, NUSRAT JAHAN CHOUDHURY, American Civil Liberties Union Foundation, New York, NY, KEVIN DIAZ, ACLU Foundation of Oregon, Portland, OR, AHILAN ARULANANTHAM, JENNIFER PASQUARELLA, ACLU Foundation of Southern California, Los Angeles, CA, ALAN L. SCHLOSSER, JULIA HARUMI MASS, ACLU Foundation of Northern California, San Francisco, CA, LAURA SCHAUER IVES, ACLU Foundation of New Mexico, Albuquerque, NM, REEM SALAHI, Salahi Law, Santa Monica, CA, MITCHELL P. HURLEY, CHRISTOPHER M. EGLESON, JUSTIN H. BELL, Akin Gump Strauss Hauer & Feld LLP, New York, NY, Attorneys for Plaintiffs.
ERIC HOLDER, United States Attorney General, DIANE KELLEHER, LILY S. FAREL, AMY ELIZABETH POWELL, SCOTT A. RISNER, United States Department of Justice, Civil Division, Federal Programs Branch, Washington, D.C., S. AMANDA MARSHALL, United States Attorney, JAMES E. COX, JR., Assistant United States Attorney, District of Oregon, Portland, OR, Attorneys for Defendants.
OPINION AND ORDER
ANNA J. BROWN, District Judge.
This matter comes before the Court on Defendants' Motion (#85) for Partial Summary Judgment and Plaintiffs' Cross-Motion (#91) for Partial Summary Judgment. The parties seek summary judgment on Plaintiffs' claims for procedural due process under the Fifth Amendment of the United States Constitution and the Administrative Procedures Act (APA), 5 U.S.C. § 706, in which Plaintiffs challenge the adequacy of Defendants' redress procedures for persons on the United States government's "No Fly List." The Constitution Project (TCP) filed an Amicus Curiae Brief (#99) in Support of Plaintiffs' Cross-Motion.
The Court heard oral argument on June 21, 2013. At the conclusion of oral argument the Court requested Defendants to submit additional briefing as to whether any appellate courts have issued opinions on the merits of a challenge brought by a plaintiff who sought review of a final agency decision received through the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP). Defendants filed their Notice of Response (#107) to the Court's Inquiry During Summary Judgment Hearing on July 3, 2013. The Court took the Cross-Motions under advisement on July 3, 2013.
For the reasons that follow, the Court GRANTS in part Plaintiffs' Cross-Motion (#91) as to Plaintiffs' liberty interests in international air travel and reputation and DENIES in part Defendants' Motion (#85) as to the same issues. The Court, however, DEFERS ruling on the remaining parts of the pending Motions for the reasons set out herein and directs the parties to submit supplemental briefing in light of the Court's rulings.
Plaintiffs are citizens and lawful permanent residents of the United States (including four veterans of the United States Armed Forces) who were not allowed to board flights to or from the United States or over United States air space. Plaintiffs believe they were denied boarding because they are on a government watch list known as the "No Fly List." Plaintiffs allege some of them have been told by federal and/or local government officials that they are on the No Fly List. Each Plaintiff has submitted applications for redress through DHS TRIP. Despite Plaintiffs' requests to officials and agencies for explanations as to why they were not permitted to board flights, none has been provided and Plaintiffs do not know whether they will be permitted to fly in the future.
In their Third Amended Complaint Plaintiffs allege Defendants have violated Plaintiffs' Fifth Amendment right to procedural due process because Defendants have not given Plaintiffs any post-deprivation notice nor any meaningful opportunity to contest their continued inclusion on the No Fly List. Plaintiffs also assert Defendants' actions have been arbitrary and capricious and constitute "unlawful agency action" in violation of the APA. Plaintiffs seek a declaratory judgment that Defendants' policies, practices, and customs violate the Fifth Amendment of the United States Constitution and the APA and an injunction requiring Defendants (1) to remedy such violations, including removal of Plaintiffs' names from any watch list or database that prevents them from flying; (2) to provide Plaintiffs with notice of the reasons and bases for Plaintiffs' inclusion on the No Fly List; and (3) to provide Plaintiffs with the opportunity to contest such inclusion.
Plaintiffs filed this action on June 30, 2010. On May 3, 2011, this Court issued an Order (#69) granting Defendants' Motion (#43) to Dismiss for failure to join the Transportation Security Administration (TSA) as an indispensable party and for lack of subject-matter jurisdiction on the ground that the relief sought by Plaintiffs could only come from the appellate court in accordance with 49 U.S.C. § 46110(a). Plaintiffs appealed the Court's order to the Ninth Circuit. Latif v. Holder, 686 F.3d 1122 (9th Cir. 2012).
On July 26, 2012, the Ninth Circuit issued an opinion in which it reversed this Court's decision, holding "the district court... has original jurisdiction over Plaintiffs' claim that the government failed to afford them an adequate opportunity to contest their apparent inclusion on the List." 686 F.3d at 1130. The Court also held "49 U.S.C. § 46110 presents no barrier to adding TSA as an indispensable party." Id. The Ninth Circuit issued its mandate on November 19, 2012, remanding the matter to this Court.
As noted, the parties filed Cross-Motions for Partial Summary Judgment, and the Court heard oral argument on June 21, 2013.
The following facts are undisputed unless otherwise noted:
I. The No Fly List
The Terrorist Screening Center (TSC), which is administered by the Federal Bureau of Investigation (FBI), develops and maintains the federal government's consolidated Terrorist Screening Database (TSDB or sometimes referred to as the watch list). The No Fly List is a subset of the TSDB.
TSC provides the No Fly List to TSA, a component of the Department of Homeland Security (DHS), for use in pre-screening airline passengers. TSC accepts nominations for inclusion in the TSDB, which are generally accepted by TSC because of a "reasonable suspicion" that the individuals are known or suspected terrorists based on the totality of the information reviewed. The federal government does not release its minimum, substantive, derogatory criteria for placement on the No Fly List nor the "Watchlisting Guidance" created for internal use by intelligence and law-enforcement communities.
II. DHS TRIP Redress Process
DHS TRIP is the mechanism available for individuals to seek redress for any travel-related screening issues experienced at airports or while crossing United States borders; i.e., denial of or delayed airline boarding, denial of or delayed entry into or exit from the United States, or continuous referral for additional (secondary) screening. DHS TRIP allows travelers who have faced such difficulties to submit a "Traveler Inquiry Form" online, by email, or by regular mail. The form prompts travelers to describe their complaint, to produce documentation relating to the issue, and to provide identification and their contact information.
If the traveler is an exact or near match to an identity within the TDSB, DHS TRIP deems the complaint to be TSDB-related and the traveler's complaint is forwarded to TSC Redress for further review. Upon receipt of the complaint, TSC Redress reviews the available information, including the information and documentation provided by the traveler, and determines (1) whether the traveler is an exact match to an identity in the TSDB and (2) if an exact match, whether the traveler should continue to be in the TSDB. In making this determination, TSC coordinates with the agency that originally nominated the individual to be included in the TSDB. If the traveler is not an exact match to an identity in the TSDB but has been misidentified as someone who is, TSC Redress informs DHS of the misidentification. DHS, in conjunction with any other relevant agency, then addresses the misidentification by correcting information in the traveler's records or taking other appropriate action.
When the review is completed DHS TRIP then sends a determination letter to the traveler advising that DHS TRIP has completed its review. A DHS TRIP determination letter neither confirms nor denies that the complainant is in the TSDB or on the No Fly List and does not provide any further details about why the complainant may or may not be in the TSDB or on the No Fly List. In some cases a DHS TRIP determination provides that the recipient can pursue an administrative appeal of the determination letter with TSA or can seek judicial review in a United States court of appeals pursuant to 49 U.S.C. § 46110.
Determination letters, however, do not provide assurances about the complainant's ability to undertake future travel. In fact, at no point in the available administrative process is a complainant told whether he or she is in the TSDB or a subset of the TSDB or given any explanation for his or her inclusion on such a list. Accordingly, there is also not any opportunity for a complainant to contest or to offer corrections to the record on which any such determination may be based.
Solely for purposes of the parties' Cross-Motions (#85, #91) presently before the Court, Defendants do not contest the following facts as asserted by Plaintiffs:
Plaintiffs are thirteen United States citizens who were denied boarding on flights over United States air space after January 1, 2009, and who believe they are on the United States government's No Fly List. Some Plaintiffs were actually told by airline representatives, FBI agents, or other government officials that they are on the No Fly List.
Each Plaintiff filed DHS TRIP complaints after being denied boarding and received a determination letter. None of the determination letters that Plaintiffs received confirm or deny the existence of any terrorist watch list that includes them nor do any of the letters provide a reason for including the individual in the TDSB or on the No Fly List.
Many of these Plaintiffs cannot travel overseas by any way other than air because such journeys by boat or by land would be cost-prohibitive, would be time-consuming to a degree that Plaintiffs could not take the necessary time off from work, or would put Plaintiffs at risk of interrogation and detention by foreign authorities. In addition, some Plaintiffs are not physically well enough to endure such infeasible modes of travel.
While Plaintiffs' circumstances are similar in many ways, each of their experiences and difficulties relating to and arising from their alleged inclusion on the No Fly List is unique as set forth in their Declarations filed in support of their Cross-Motion and summarized briefly below.
Amayan Latif: Latif is a United States Marine Corps veteran and lives in Stone Mountain, Georgia, with his wife and children. Between November 2008 and April 2010 Latif and his family were living in Egypt. In April 2010 Latif and his family attempted to return to the United States. Latif was not allowed to board the first leg of their flight from Cairo to Madrid. One month later Latif was questioned by FBI agents and told he was on the No Fly List. Because he was unable to board a flight to the United States, Latif's United States veteran disability benefits were reduced from $899.00 per month to zero because he could not attend the scheduled evaluations required to continue his benefits. In August 2010 Latif returned home after the United States government granted him a "one-time waiver" to fly to the United States. Because he cannot fly, Latif is unable to travel from the United States to Egypt to resume studies or to Saudi Arabia to perform a hajj, a religious pilgrimage and Islamic obligation.
Mohamed Sheikh Abdirahman Kariye: Kariye lives in Portland, Oregon with his wife and children. In March 2010 Kariye was not allowed to board a flight from Portland to Amsterdam, surrounded in public by government officials at the airport, and told by an airline employee that he was on a government watch list. Because Kariye is prohibited from boarding flights out of the United States, he could not fly to visit his ...