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Latif v. Sessions

United States District Court, D. Oregon

April 21, 2017

AYMAN LATIF; MOHAMED SHEIKH ABDIRAHMAN KARIYE; RAYMOND EARL KNAEBLE IV; NAGIB ALI GHALEB; ABDULLATIF MUTHANNA; FAISAL NABIN KASHEM; ELIAS MUSTAFA MOHAMED; IBRAHEIM Y. MASHAL; SALAH ALI AHMED; AMIR MESHAL; STEPHEN DURGA PERSAUD; and MASHAAL RANA, Plaintiffs,
v.
JEFFERSON B. SESSIONS III, [1] in his official capacity as Attorney General of the United States; JAMES B. COMEY, in his official capacity as Director of the Federal Bureau of Investigation; and CHRISTOPHER M. PIEHOTA, in his official capacity as Director of the FBI Terrorist Screening Center, Defendants.

          STEVEN M. WILKER Tonkon Torp LLP HINA SHAMSI HUGH HANDEYSIDE American Civil Liberties Union AHILAN ARULANANTHAM CATHERINE A. WAGNER ACLU Foundation of Southern California ALAN L. SCHLOSSER JULIA HARUMI MASS ACLU of Northern California MITCHELL P. HURLEY JUSTIN H. BELL Akin Gump Strauss Hauer & Feld LLP Attorneys for Plaintiffs Mohamed Sheikh Abdirahman Kariye, Faisal Kashem, Raymond Earl Knaeble, Amir Mohamed Meshal, and Steven Washburn

          WILLIAM GENEGO JOEL P. LEONARD Elliot, Ostrander & Preston, P.C. Union Bank of California Tower Attorneys for Plaintiff Stephen Persaud JEFFERSON B. SESSIONS III United States Attorney General BENJAMIN C. MIZER Principal Deputy Assistant Attorney General ANTHONY J. COPPOLINO Deputy Branch Director AMY ELIZABETH POWELL BRIGHAM J. BOWEN SAMUEL M. SINGER United States Department of Justice Civil Division, Federal Programs Branch BILLY J. WILLIAMS United States Attorney JAMES E. COX, JR. Assistant United States Attorney Attorneys for Defendants

          OPINION AND ORDER

          ANNA J. BROWN United States District Judge.

         This matter comes before the Court on Defendants' Motion (#348) to Dismiss for Lack of Jurisdiction and Plaintiffs' Motion (#352) for Leave to Conduct Limited Jurisdictional Discovery. The Court concludes the record on these Motions is sufficiently developed such that oral argument would not be helpful. For the reasons that follow, the Court GRANTS Defendants' Motion (#348) to Dismiss for Lack of Jurisdiction and DENIES Plaintiffs' Motion (#352) for Leave to Conduct Limited Jurisdictional Discovery.

         BACKGROUND

         The Court set out the complete factual background of this case in its Opinion and Order (#321) issued March 28, 2016, and Opinion and Order (#136) issued June 24, 2014. The Court sets out herein only the factual background necessary to resolve the parties' Motions.

         I. No-Fly List and Original DHS TRIP Procedures

         Plaintiffs instituted this action on June 30, 2010, challenging their alleged placements on the No-Fly List and the procedures that the government provided under the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP) to challenge placements on the No-Fly List. Plaintiffs seek only prospective relief in this action.

         Individuals who are placed on the No-Fly List are prohibited from boarding any commercial flight that will pass through or over United States airspace. The No-Fly List is a subset of the consolidated Terrorist Screening Database (TSDB), which is maintained by the Terrorist Screening Center (TSC). The TSC is administered by the Federal Bureau of Investigation (FBI) and is staffed by multiple agencies. Although the TSC is responsible for maintaining the TSDB (including the No-Fly List), nominations to the TSDB are made by multiple law-enforcement and national-security agencies.

         At the time Plaintiffs instituted this action a traveler who was denied boarding a commercial airline could submit an application for redress through DHS TRIP. DHS TRIP would determine whether the traveler is an exact or near match to an individual in the TSDB and, if so, would forward the request to the TSC. On receipt of the inquiry the TSC would double-check to ensure the traveler was an exact match to an identity in the TSDB and, if so, determine whether the traveler should continue to be in the TSDB.

         After the TSC completed its review, it would notify DHS TRIP of its determination and DHS TRIP would send a determination letter advising the traveler that DHS TRIP had completed its review. Notably, the DHS TRIP determination letter did not confirm or deny whether the traveler was in the TSDB or on the No-Fly List and did not provide any further details about why the traveler may or may not have been in the TSDB or on the No-Fly List. Moreover, pursuant to these original procedures, the DHS TRIP determination letters did not provide assurances about the traveler's ability to undertake future travel nor any meaningful opportunity to contest or to correct the record on which any such determination was based. In some cases the DHS TRIP determination letter advised the traveler that he or she could pursue an administrative appeal of the determination with the Transportation Security Administration (TSA) or could seek judicial review in a United States court of appeals pursuant to 49 U.S.C. § 46110.

         II. Jurisdiction Over Plaintiffs' Claims Challenging Placement on the No-Fly List and the DHS TRIP Process

         On May 3, 2011, this Court dismissed this action on the grounds that Plaintiffs failed to join the TSA, an indispensable party, and that jurisdiction over Plaintiffs' challenges to their placements on the No-Fly List and the DHS TRIP procedures rested in the Ninth Circuit Court of Appeals pursuant to 49 U.S.C. § 46110(a). See Latif v. Holder, No. 3:10-cv-00750-BR, 2011 WL 1667471 (D. Or. May 3, 2011).

         On November 19, 2012, the Ninth Circuit Court of Appeals held Plaintiffs' claims did not challenge a TSA order, and, therefore, § 46110(a) did not vest jurisdiction over this action in the Court of Appeals. See Latif v. Holder, 686 F.3d 1122 (9th Cir. 2012). Accordingly, the Ninth Circuit reversed and remanded the case back to this Court.

         III. This Court's Opinion and Order issued June 24, 2014

         On June 24, 2014, this Court denied Defendants' Cross-Motion (#85) for Partial Summary Judgment and granted Plaintiffs' Cross-Motion (#91) for Partial Summary Judgment as to Plaintiffs' related procedural due-process and Administrative Procedure Act (APA) claims in which Plaintiffs asserted the DHS TRIP procedures were constitutionally deficient. See Latif v. Holder, 28 F.Supp.3d 1134 (D. Or. 2014). The Court held the DHS TRIP procedures fell “far short of satisfying the requirements of due process” Id. at 1161. The Court found due process required Defendants to provide Plaintiffs “with notice regarding their status on the No-Fly List and the reasons for placement on that List” and that such notice “must be reasonably calculated to permit each Plaintiff to submit evidence relevant to the reasons for their respective inclusions on the No-Fly List.” Id. at 1162. Nevertheless, the Court concluded it could not “foreclose the possibility that in some cases such disclosures may be limited or withheld altogether because any such disclosure would create an undue risk to national security.” Id. The Court, however, held any such determination must be made on a case-by-case basis and must, at a minimum, consider “(1) the nature and extent of the classified information, (2) the nature and extent of the threat to national security, and (3) the possible avenues available to allow the Plaintiff to respond more effectively to the charges.” Id.

         IV. Revised DHS TRIP Procedures and Reconsideration of Plaintiffs' DHS TRIP Inquiries

         Following this Court's Opinion and Order issued June 24, 2014, and pursuant to the Court's Case-Management Order (#152) issued October 3, 2014, Defendants disclosed on October 10, 2014, that seven of the Plaintiffs were not on the No-Fly List at that time. In addition, Defendants revised the DHS TRIP procedures to address the deficiencies that the Court identified in its June 24, 2014, Opinion and Order.

         Under the new procedures DHS TRIP sent to each of the remaining Plaintiffs a notification letter that confirmed they were on the No-Fly List at that time, identified the applicable substantive criteria, and provided an unclassified summary that included at least some reasons for placement of each individual on the No-Fly List.[2] Although the unclassified summaries varied in length and detail, the letters did not disclose all of the reasons or information on which Defendants relied to maintain each Plaintiff's placement on the No-Fly List because, according to Defendants, they were unable to provide additional disclosures. The November 2014 DHS TRIP notification letters invited each Plaintiff to submit a written response by December 15, 2014, and each of the remaining Plaintiffs responded to the notification letters.

         Pursuant to the revised procedures, if an individual timely responds to the second letter and requests additional review, DHS TRIP forwards the response and any enclosed information to the TSC for consideration. Upon completion of TSC's review of materials submitted to DHS TRIP, the TSC provides a written recommendation to the TSA Administrator as to whether the individual should be removed from or remain on the No-Fly List and the reasons for that recommendation. The information that the TSC provides to the TSA Administrator may be a summary of the information that the TSC relied on to make its determination regarding whether the individual should remain on the No-Fly List and does not necessarily include all underlying documentation. The TSC's recommendation to the TSA Administrator may contain classified and/or law-enforcement sensitive information. In addition, DHS TRIP also provides the traveler's complete DHS TRIP file to the TSA Administrator, including all information submitted by the traveler.

         The revised DHS TRIP procedures also provide that after review of the record provided by TSC and DHS TRIP, the TSA Administrator may request additional information or consult with the TSC and/or other relevant agencies (including any nominating agency) regarding concerns that may arise from the recommendation or the record before the Administrator. The TSA Administrator may either adopt or reject the TSC's recommendation. If the TSA Administrator issues a final order maintaining an individual on the No-Fly List, the order will state the basis for the decision to the extent possible without compromising national security or law-enforcement interests. If the TSA Administrator determines the traveler should not remain on the No-Fly List, the Administrator would then issue an order removing the traveler from the No-Fly List. The TSA Administrator is vested with the authority to determine whether the traveler will remain on or be removed from the No-Fly List and is not bound by the recommendation of the TSC. Upon issuance of the final order by the TSA Administrator, DHS TRIP provides TSC and the traveler with a copy of the final order.

         In late 2014, pursuant to these revised procedures, Defendants reconsidered the DHS TRIP inquiries of the remaining six Plaintiffs (Mohamed Sheikh Abdirahman Kariye, Faisal Kashem, Raymond Earl Knaeble, Amir Meshal, Steven Washburn, and Stephen Persaud), [3] but the TSA Administrator concurred with the TSC's recommendation to keep each Plaintiff on the No-Fly List. The TSA Administrator then issued orders to that effect.

         Plaintiffs, nevertheless, contended the revised DHS TRIP process still violated their rights to procedural due process, and, therefore, on March 17, 2015, Plaintiffs filed Motions for Partial Summary Judgment on their procedural due-process claims (both collectively and as to each individual Plaintiff). Defendants filed Cross-Motions for Summary Judgment as to all Plaintiffs collectively and as to each Plaintiff individually in which Defendants contended the revised DHS TRIP process were constitutionally sufficient.

         V. Plaintiffs' Procedural Due-Process Claims as to the Revised DHS TRIP Process

         On March 28, 2016, the Court granted in part and denied in part Defendants' Cross-Motion as to the Plaintiffs collectively, denied Plaintiffs' collective Motion, and deferred ruling on the parties' Cross-Motions as to the individual Plaintiffs. See Latif v. Lynch, No. 3:10-cv-00750-BR, 2016 WL 1239925 (D. Or. Mar. 28, 2016). The Court adhered to its ruling in the June 24, 2014, Opinion and Order and found the revised DHS TRIP process to be generally consistent with the standards the Court set out in that Order. The Court, however, also found the record was not sufficiently developed to permit the Court to determine whether Defendants provided each Plaintiff with the requisite notice and opportunity to be heard through the revised DHS TRIP procedures because the record did not identify the information that Defendants withheld from the notification letters sent to each Plaintiff. Accordingly, the Court directed Defendants to supplement the record (ex parte and in camera if necessary to protect sensitive national-security information) with a summary of the material information that Defendants withheld from the notice letters sent to each Plaintiff together with a justification for withholding that information.

         On May 5, 2016, Defendants filed their Supplemental Memorandum together with a Notice indicating they had filed additional materials ex parte and in camera. On July 7, 2016, the Court directed Defendants to make an additional supplemental filing that could, if necessary, be filed ex parte and under seal. Defendants made their second supplemental submission on August 29, 2016.

         Based on its consideration of the entirety of the record, the Court on October 6, 2016, granted Defendants' Cross-Motions for Partial Summary Judgment as to the individual Plaintiffs and denied Plaintiffs' individual Motions for Summary Judgment. In particular, the Court found “Defendants have provided sufficient justifications for withholding additional information in response to each of the Plaintiffs' revised DHS TRIP inquiries.” Order (#337) ...


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