March 24, 2014
RAYMOND ARJMAND, Petitioner,
U.S. DEPARTMENT OF HOMELAND SECURITY; JEH JOHNSON, in his official capacity as the Secretary of Homeland Security; TRANSPORTATION SECURITY ADMINISTRATION; JOHN S. PISTOLE, in his official capacity as Administrator of the Transportation Security Administration; TERRORIST SCREENING CENTER; CHRISTOPHER M. PIEHOTA, in his official capacity as Director of Terrorist Screening Center, Respondents
Submitted February 10, 2014 [*] Pasadena, California
On Petition for Review of an Order of the Department of Homeland Security.
Nancy Ellen Miller and Eric Robert Welsh, Reeves & Associates, APLC, Pasadena, California, for Petitioner.
Henry Charles Whitaker, Mark B. Stern, and Sharon Swingle, United States Department of Justice, Washington, D.C., for Respondents.
Before: Dorothy W. Nelson, Richard A. Paez, and Jacqueline H. Nguyen, Circuit Judges. Opinion by Judge D.W. Nelson.
NELSON, Senior Circuit Judge.
Raymond Arjmand filed a petition in this court seeking review of a determination letter issued by the Department of Homeland Security (DHS). Arjmand seeks to know whether his name appears on a government terrorism watchlist, and if so, he seeks either immediate removal from all watchlists or a meaningful opportunity to seek removal.
We conclude that we lack jurisdiction over Arjmand's claims, and transfer this case to the United States District Court for the Central District of California for further proceedings.
I. Arjmand's Travel, Detention, and Administrative Complaint
Arjmand is an American citizen who was born in Iran. Shortly before boarding a flight to the United States from Canada, U.S. Customs and Border Protection officers detained Arjmand and his wife for two hours and searched their belongings. Roughly one year later, Arjmand was subject to another search and lengthy detention at Los Angeles International Airport after returning with his family from a vacation in Mexico. Arjmand has never been prohibited from boarding a flight. He has since ceased traveling abroad, fearing additional embarrassing delays.
Concerned that his name was mistakenly included on a government terrorism watchlist, Arjmand submitted a complaint through the DHS Traveler Redress Inquiry Program (DHS TRIP), which, as described in more detail below, is the federal government's " clearinghouse" for grievances related to travel screening. Latif v. Holder, 686 F.3d 1122, 1125 (9th Cir. 2012). Arjmand's complaint alleged that there was no basis for subjecting him to additional security screening, and stated his concern that he was subject to discrimination due to his race, religion, ethnicity, or national origin.
In response, DHS issued Arjmand a letter, stating that " DHS has researched and completed our review of your case" and " made any corrections to records that our inquiries determined were necessary." The letter did not, however, disclose Arjmand's watchlist status, did not explain why he was subjected to additional screening at the border, and stated that DHS " cannot ensure your travel will be delay-free." The letter claimed that its conclusions were " reviewable by the United States Court of Appeals under 49 U.S.C. § 46110."
Arjmand subsequently filed a petition for review in this court, seeking disclosure of his watchlist status, a meaningful opportunity to contest inclusion on any watchlist, and removal from all government watchlists.
II. Government Watchlists and the DHS TRIP
The watchlist at issue in this case is the Consolidated Terrorist Screening Database (TSDB). This list was created in the wake of the September 11 terrorist attacks, and is used to share counter-terrorism information between government agencies. The TSDB contains names of and identifying information for individuals suspected of having ties to terrorism. It is maintained by the Terrorist Screening Center (TSC), a multi-agency federal government center administered by the FBI.
Traveler complaints related to the TSDB--such as Arjmand's--are not processed directly by TSC. Instead, travelers must file complaints through the DHS TRIP. The DHS TRIP is administered by
the Transportation Security Administration (TSA), and functions as follows.
A traveler initiates the DHS TRIP process by filling out an online or print complaint form. TSA then reviews the traveler's complaint to determine whether the traveler's name and identifying information match an entry on the TSDB. If there is no match, the review process ends there and TSA takes appropriate actions to address any misidentifications that might have taken place. If, however, the traveler does match a TSDB entry, DHS refers the complaint to TSC for further review. TSC then completes an independent review of the traveler's record, and notifies TSA of the result.
Once DHS TRIP review is complete, TSA sends a " determination letter" to the traveler. As in Arjmand's case, determination letters do not notify the traveler whether he or she was, or still is, included on the TSDB.
Both Arjmand and the government claim that we have original jurisdiction under 49 U.S.C. § 46110, the statute mentioned in Arjmand's determination letter. This statute " grants exclusive jurisdiction to the federal courts of appeals to 'review' the 'order[s]' of a number of agencies, including the Transportation Security Administration." Ibrahim v. Dep't of Homeland Sec., 538 F.3d 1250, 1254 (9th Cir. 2008) (quoting Clark v. Busey, 959 F.2d 808, 811-12 (9th Cir. 1992)) (alteration in original); 49 U.S.C. § 46110(a). Section 46110 does not, however, grant circuit courts jurisdiction to review orders issued by TSC. Ibrahim, 538 F.3d at 1255.
As we explained in Latif v. Holder, § 46110 does not grant circuit courts jurisdiction over broad constitutional claims--such as Arjmand's--that seek removal from the TSDB. See Latif, 686 F.3d at 1129. The basis of our holding was straightforward. Because TSC administers the TSDB, a court needs jurisdiction over TSC to grant meaningful relief to a plaintiff seeking removal from the TSDB. Id. at 1127. Thus, since § 46110 does not grant circuit courts jurisdiction to review TSC orders, the statute cannot grant jurisdiction over claims seeking removal from the TSDB. Therefore, under Latif, we lack original jurisdiction over Arjmand's claims.
The government attempts to distinguish Latif, arguing that jurisdiction exists because Arjmand--unlike the Latif plaintiffs--has brought his claims through a petition to review his DHS TRIP determination letter. This argument is unpersuasive. Arjmand, like the plaintiffs in Latif, has raised " broad constitutional claims that do not require review of the merits of [his] individual DHS TRIP grievance." Id. at 1129. Even though Arjmand has pursued those claims through a petition challenging his DHS TRIP determination letter, the relief he seeks is confirmation of his watchlist status and, if present on the TSDB, removal from the list or a meaningful opportunity to contest his inclusion on the list. Latif holds that jurisdiction over claims seeking this relief does not exist under § 46110. See id. at 1127, 1129. Thus, the difference in procedural posture is not relevant, because our " lack of jurisdiction under § 46110... arises from the unique relationship between TSA and TSC in processing traveler grievances," not from the formal mechanism a traveler uses to pursue claims challenging the administration of the TSDB. Id. at 1129.
In fact, there is only one difference between the relief sought here and the relief sought by the Latif plaintiffs: Arjmand is seeking disclosure of his TSDB status, and no comparable claim was alleged in Latif. But this difference is not material. It is TSC's policy not to disclose an individual's
watchlist status due to national security concerns. Therefore, the fundamental problem remains that Arjmand cannot be granted relief without reviewing and modifying TSC orders, which cannot be done under § 46110.
Although this court lacks original jurisdiction over Arjmand's claims, the jurisdictional defects that prevent us from hearing Arjmand's claims would not exist in a district court. Latif, 686 F.3d at 1130. We therefore transfer this case to the United States District Court for the Central District of California pursuant to 28 U.S.C. § 1631. Clark, 959 F.2d at 812 ( " Jurisdictional defects that arise when a suit is filed in the wrong federal court may be cured by transfer under the federal transfer statute...." ). " By transferring this appeal, we do not purport to rule on the district court's jurisdiction. That is an issue for it to determine." City of Alameda v. F.A.A., 285 F.3d 1143, 1145 n.4 (9th Cir. 2002).
We reaffirm our holding in Latif, and clarify that it is applicable even where a traveler's claims are brought as a challenge to a DHS TRIP determination letter. TRANSFERRED to the District Court for the Central District of California.