Raymond Arjmand v. DHS, et al

Filing

FILED OPINION (DOROTHY W. NELSON, RICHARD A. PAEZ and JACQUELINE H. NGUYEN) 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. Judge: DWN Authoring, FILED AND ENTERED JUDGMENT. [9027277]

Case: 12-71748

03/24/2014

ID: 9027277

DktEntry: 65-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RAYMOND ARJMAND,

No. 12-71748
Petitioner,

v.
OPINION
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.

On Petition for Review of an Order of the
Department of Homeland Security
Submitted February 10, 2014*
Pasadena, California
*

The panel unanimously concluded that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

Page: 1 of 8

Case: 12-71748

2

03/24/2014

ID: 9027277

DktEntry: 65-1

ARJMAND V. DHS
Filed March 24, 2014
Before: Dorothy W. Nelson, Richard A. Paez, and
Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge D.W. Nelson

SUMMARY**

Watch List / Appellate Jurisdiction
The panel held that this court lacked jurisdiction over a
petition seeking review of a determination letter issued by the
U.S. Department of Homeland Security, and transferred the
petition to the United States District Court for the Central
District of California for further proceedings.
The petitioner sought disclosure of his watchlist status, a
meaningful opportunity to contest inclusion on any watchlist,
and removal from all government watchlists. The watchlist
at issue is the federal Consolidated Terrorist Screening
Database, which is maintained by the Terrorist Screening
Center (“TSC”), and complaints related to the Database are
processed through the Department of Homeland Security
Traveler Redress Inquiry Program.
The panel held that it lacked original jurisdiction over
petitioner’s claims because 49 U.S.C. § 46110 did not grant
circuit courts jurisdiction to review TSC orders, and therefore
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Page: 2 of 8

Case: 12-71748

03/24/2014

ID: 9027277

ARJMAND V. DHS

DktEntry: 65-1

Page: 3 of 8

3

did not grant jurisdiction over claims seeking removal from
the Database. The panel also held that although this court
lacked original jurisdiction, these jurisdictional defects would
not exist in a district court.

COUNSEL
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.

OPINION
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.

Case: 12-71748

4

03/24/2014

ID: 9027277

DktEntry: 65-1

ARJMAND V. DHS
Background

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

Page: 4 of 8

Case: 12-71748

03/24/2014

ID: 9027277

DktEntry: 65-1

ARJMAND V. DHS

Page: 5 of 8

5

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

Case: 12-71748

6

03/24/2014

ID: 9027277

DktEntry: 65-1

ARJMAND V. DHS

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.
Discussion
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,

Page: 6 of 8

Case: 12-71748

03/24/2014

ID: 9027277

ARJMAND V. DHS

DktEntry: 65-1

Page: 7 of 8

7

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.

Case: 12-71748

8

03/24/2014

ID: 9027277

DktEntry: 65-1

ARJMAND V. DHS

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).
Conclusion
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.

Page: 8 of 8