Latif et al v. United States Department of Justice et al
Filing
356
OPINION AND ORDER. The Court GRANTS Defendants' Motion #( #348 ) to Dismiss for Lack of Jurisdiction, which the Court construes as a Motion for Summary Judgment, and DENIES Plaintiffs' Motion #( #352 ) for Leave to Conduct Limited Jurisdictional Discovery. The Court directs the parties to confer and to submit to the Court no later than May 12, 2017, a proposed form of judgment that summarizes the Court's disposition of all issues litigated to date and that separately identifies those as to which the Court concludes it lacks jurisdiction to proceed. After the Court enters its concluding judgment, the Court will then consider any petition(s) for attorneys' fees. IT IS SO ORDERED. Signed on 4/21/2017 by Judge Anna J. Brown. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
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,
3:10-cv-00750-BR
OPINION AND ORDER
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
888 S.W. 5th Avenue, Suite 1600
Portland, OR 97204-2099
(503) 802-2040
1
The Court substitutes Jefferson B. Sessions III as
Attorney General of the United States, who was sworn in on
February 29, 2017.
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OPINION AND ORDER
HINA SHAMSI
HUGH HANDEYSIDE
American Civil Liberties Union
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2500
AHILAN ARULANANTHAM
CATHERINE A. WAGNER
ACLU Foundation of Southern California
1313 West 8th Street
Los Angeles, CA 90017
(213) 977-9500
ALAN L. SCHLOSSER
JULIA HARUMI MASS
ACLU of Northern California
39 Drumm Street
San Francisco, CA 94111
(415) 621-2493
MITCHELL P. HURLEY
JUSTIN H. BELL
Akin Gump Strauss Hauer & Feld LLP
One Bryant Park
New York, NY 10036
(212) 872-1011
Attorneys for Plaintiffs Mohamed Sheikh Abdirahman
Kariye, Faisal Kashem, Raymond Earl Knaeble, Amir
Mohamed Meshal, and Steven Washburn
WILLIAM GENEGO
2115 Main Street
Santa Monica, CA 90405
(310) 399-3259
JOEL P. LEONARD
Elliot, Ostrander & Preston, P.C.
Union Bank of California Tower
707 S.W. Washington Street, Suite 1500
Portland, OR 97205
(503) 224-7112
Attorneys for Plaintiff Stephen Persaud
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OPINION AND ORDER
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
20 Massachusetts Avenue N.W.
Washington, DC 20001
(202) 514-9836
BILLY J. WILLIAMS
United States Attorney
JAMES E. COX, JR.
Assistant United States Attorney
District of Oregon
1000 S.W. Third Avenue, Ste. 600
Portland, OR 97204
(503) 727-1026
Attorneys for Defendants
BROWN, 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.
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OPINION AND ORDER
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 nationalsecurity agencies.
At the time Plaintiffs instituted this action a traveler
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OPINION AND ORDER
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
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OPINION AND ORDER
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.
Cir. 2012).
See Latif v. Holder, 686 F.3d 1122 (9th
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’ CrossMotion (#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.
Supp. 3d 1134 (D. Or. 2014).
See Latif v. Holder, 28 F.
The Court held the DHS TRIP
procedures fell “far short of satisfying the requirements of due
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OPINION AND ORDER
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.”
1162.
Id. at
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-bycase 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.”
IV.
Id.
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.
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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
2
In the ordinary course, this notification would be split
into two steps. First, DHS TRIP (as noted, in consultation with
TSC) would send to the traveler a notification letter that only
indicates whether the traveler was on the No-Fly List. If the
traveler is on the No-Fly List and requests additional
information, the revised procedures call for DHS TRIP (in
consultation with the TSC) to send the traveler a second
notification letter that identifies the applicable substantive
criteria and contains the unclassified summary of the reasons for
the traveler’s placement on the List. Because of the procedural
posture of this litigation, however, Defendants combined these
two steps for the remaining Plaintiffs.
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OPINION AND ORDER
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
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OPINION AND ORDER
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).
3
On April 12, 2016, Plaintiffs filed a Notice (#324) of the
Death of a Party in which it notified the Court that Plaintiff
Steven William Washburn had passed away. Accordingly, five
Plaintiffs remain actively involved in these proceedings.
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OPINION AND ORDER
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
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OPINION AND ORDER
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.”
(#337) at 5-6.
Order
Accordingly, the Court concluded the revised DHS
TRIP procedures satisfied Plaintiffs’ rights to procedural due
process.
DISCUSSION
Defendants now move to dismiss this action on the basis that
the Court of Appeals has jurisdiction over Plaintiffs’ remaining
claims pursuant to § 46110 because those claims directly
challenge the TSA Administrator’s recent orders to keep
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OPINION AND ORDER
Plaintiffs on the No-Fly List under the revised DHS TRIP
procedures.
Plaintiffs, on the other hand, contend their claims
still do not fall within the scope of § 46110 despite the revised
DHS TRIP procedures, and, therefore, this Court continues to have
jurisdiction pursuant to the Ninth Circuit’s previous mandate in
this case.
Because Defendants’ Motion relies on factual developments
that occurred after the filing of Plaintiffs’ Third Amended
Complaint and that are not contained within the Third Amended
Complaint, the Court construes Defendants’ Motion as a motion for
summary judgment.
I.
See Fed. R. Civ. P. 12(d).
Standards
Section 46110(a) “‘grants exclusive jurisdiction to the
federal courts of appeals to ‘review’ the ‘order[s]’ of a number
of agencies, including the Transportation Security
Administration.’”
Arjmand v. United States Dep’t of Homeland
Sec., 745 F.3d 1300, 1302 (9th Cir. 2014)(quoting Ibrahim v.
Dep’t of Homeland Sec., 538 F.3d 1250, 1254 (9th Cir. 2008)).
“Section 46110 does not, however, grant circuit courts
jurisdiction to review orders issued by TSC.”
Arjmand, 745 F.3d
at 1302.
The Ninth Circuit has considered the relationship between
challenges to placement on the No-Fly List and § 46110(a) on
three occasions.
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OPINION AND ORDER
A.
Ibrahim v. Department of Homeland Security
In Ibrahim the plaintiff was placed on the No-Fly List and
brought an action in the district court under the APA “for an
injunction directing the government to remove her name from the
No-Fly List and to cease certain policies and procedures
implementing the No-Fly List.”
538 F.3d at 1254.
The district
court in Ibrahim determined the TSC “actually compiles the list
of names ultimately placed on the No-Fly List” and that the TSC
is not part of the TSA or any other agency named in § 46110.
at 1254-55.
Id.
The Ninth Circuit concluded “[b]ecause putting
Ibrahim’s name on the No-Fly List was an “order” of an agency not
named in section 46110, the district court retains jurisdiction
to review that agency’s order under the APA.”
Id. at 1255.
The government in Ibrahim also argued the court of appeals
had jurisdiction over Ibrahim’s claim because it was “inescapably
intertwined” with a TSA order.
Id.
The Ninth Circuit, however,
noted the “inescapably intertwined” doctrine only “refer[s] to
claims that are inescapably intertwined with [the court’s] review
of an order.”
Id. at 1255-56 (emphasis in original).
The Ninth
Circuit, therefore, found Ibrahim’s claim challenging the order
placing her on the No-Fly List was not inextricably intertwined
with an order under § 46110 because the challenged order was
issued by an agency other than one named in § 46110.
1256.
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OPINION AND ORDER
Id. at
Finally, the Ninth Circuit also noted the lack of any
administrative record further suggested review should be by the
district court because “it would make sense that [review] be in a
court with the ability to take evidence.”
B.
Id.
Latif v. Holder
As noted, this Court initially dismissed this action for
lack of subject-matter jurisdiction because the Court initially
held the court of appeals had jurisdiction over Plaintiffs’
claims pursuant to § 46110.
The Ninth Circuit, however, reversed
and remanded on the ground that this Court has subject-matter
jurisdiction over both Plaintiffs’ substantive and procedural
claims.
The Ninth Circuit reasoned § 46110 does not apply to
Plaintiffs’ substantive claims “[b]ecause TSC ‘actually compiles
the list of names ultimately placed’ on the [No-Fly] List.”
Latif, 686 F.3d at 1127 (quoting Ibrahim, 538 F.3d at 1255).
With respect to Plaintiffs’ procedural due-process claims,
however, the Ninth Circuit noted those claims “undoubtedly
require[] at least some review of TSA’s orders, namely, the
policies and procedures implementing DHS TRIP.”
at 1127.
Latif, 686 F.3d
In addition to direct challenges to orders by agencies
explicitly listed in § 46110, the Ninth Circuit noted “[t]he
district court lacks jurisdiction to hear damages claims that are
‘inextricably intertwined with a review of the procedures and
merits surrounding the agency’s order.’”
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OPINION AND ORDER
Id. at 1228 (quoting
Americopters, LLC v. Fed. Aviation Admin., 441 F.3d 726, 736 (9th
Cir. 2006)).
The court explained the “‘inextricably intertwined’
doctrine ‘prevents plaintiffs from crafting constitutional tort
claims either as a means of relitigat[ing] the merits of the
previous administrative proceedings, or as a way of evading
entirely established administrative procedures.’”
Latif, 686
F.3d at 1128 (quoting Americopters, 441 F.3d at 736).
In particular, the Ninth Circuit found “Plaintiffs’
procedural challenge requires judicial review of orders issued
both by TSA, which is named in § 46110, and by TSC, which is
not.”
Id. at 1128.
The Ninth Circuit, however, described the
relationship between TSA and TSC as follows:
TSA’s implementation of DHS TRIP is at issue, but TSA
is merely a conduit for a traveler’s challenge to
inclusion on the List. TSA simply passes grievances
along to TSC and informs travelers when TSC has made a
final determination. TSC — not TSA — actually reviews
the classified intelligence information about travelers
and decides whether to remove them from the List. And
it is TSC — not TSA — that established the policies
governing that stage of the redress process.
Id.
Thus, the Ninth Circuit found “[i]f Plaintiffs are entitled
to judicial relief, any remedy must involve both TSA and TSC,”
and to the extent that Plaintiffs want to know why they were
included on the No-Fly List and to have an opportunity to
meaningfully respond, “[s]uch relief must come from TSC – the
sole entity with both the classified intelligence information
Plaintiffs want and the authority to remove them from the List.”
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OPINION AND ORDER
Id. at 1129.
The court, therefore, concluded:
“[B]ecause we
would not be able to provide relief simply by amending,
modifying, or setting aside TSA’s orders or by directing TSA to
conduct further proceedings, we lack jurisdiction under § 46110
to address Plaintiffs’ procedural challenge.”
C.
Id.
Arjmand v. United States Department of Homeland
Security
The Ninth Circuit again revisited the issue in Arjmand.
In
Arjmand the plaintiff was twice subjected to additional screening
procedures before boarding flights.
745 F.3d at 1301.
Arjmand
submitted a DHS TRIP inquiry that was processed according to the
original DHS TRIP procedures described above.
Id.
After DHS
TRIP sent the plaintiff his notification letter, the plaintiff
filed a petition for review in the Ninth Circuit “seeking
disclosure of his watchlist status, a meaningful opportunity to
contest inclusion on any watchlist, and removal from all
government watchlists.”
Id.
The Ninth Circuit relied on Latif and summarized its ruling
in Latif as follows:
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. 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.
Arjmand, 745 F.3d at 1302 (internal citations omitted).
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OPINION AND ORDER
The
Arjmand court rejected the government’s attempt to distinguish
Latif on the basis that, unlike the Latif Plaintiffs, Arjmand
pursued his constitutional claims through the DHS TRIP process.
The court reasoned:
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. 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. (quoting Latif, 686 F.3d at 1129)(emphasis and ellipses in
original).
Thus, the Ninth Circuit concluded “the fundamental
problem remains that Arjmand cannot be granted relief without
reviewing and modifying TSC orders, which cannot be done under
§ 46110.”
II.
Id. at 1303.
Analysis
Defendants contend the revised DHS TRIP procedures now place
litigation of Plaintiffs’ substantive claims squarely within the
types of claims that must be brought in the court of appeals
pursuant to § 46110.
Defendants contend Ibrahim, Latif, and
Arjmand are distinguishable because under the new DHS TRIP
procedures the TSA Administrator is unquestionably the only
authority responsible for issuing the final order maintaining a
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OPINION AND ORDER
traveler on the No-Fly List.
Defendants emphasize the TSA
Administrator has both the discretion to adopt or to reject the
recommendation of TSC and, if necessary, to consult with or to
request additional information from TSC or other relevant
agencies.
Thus, because the TSA Administrator is the ultimate
decision-maker as to whether a traveler remains on the No-Fly
List, Defendants contend Plaintiffs’ substantive challenges to
their continued presence on the No-Fly List must be addressed by
the court of appeals.
Plaintiffs, on the other hand, contend jurisdiction remains
in this Court because TSA does not have complete control over
placement on the No-Fly List and the DHS TRIP process, and,
therefore, Plaintiffs’ claims do not require review of a TSA
order under § 46110.
In particular, Plaintiffs point out that
TSC and the nominating agencies determine who is placed on the
No-Fly List in the first instance, and TSC retains a key role in
determining the information that is conveyed to the traveler in
the unclassified summary and in the final redress response; the
information that is conveyed to the TSA Administrator; and,
therefore, the information that forms the basis of the
Administrator’s ultimate decision.
Finally, Plaintiffs contend
jurisdiction must rest in a court that is capable of receiving
evidence because Plaintiffs’ substantive claims necessitate
considering more than the administrative record.
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OPINION AND ORDER
At the outset the Court notes this is an issue of first
impression.
Although the Ninth Circuit and other courts have
considered whether claims arising from the No-Fly List and the
original DHS TRIP procedures must be brought in the courts of
appeals pursuant to § 46110, no court has considered where
jurisdiction lies for a claim seeking review of an order denying
removal from the No-Fly List following the completion of the
revised DHS TRIP procedures and the issuance of a TSA order
determining a traveler should be maintained on the No-Fly List
for sufficient, disclosed reasons.
Although the Court finds some
force in each of the parties’ opposing arguments, the Court
concludes in the unique procedural posture of this case that
jurisdiction over Plaintiffs’ remaining substantive claims
explicitly lies in the Ninth Circuit Court of Appeals pursuant to
§ 46110.
In any event, if this Court retains the matter
erroneously to adjudicate the remaining issues in this case, the
parties will be delayed by several more months and will incur
significant unnecessary expense.
Thus, in light of the unique
procedural posture of this case, the Court finds the most prudent
course forward is to permit this jurisdictional question to be
reviewed without delay by the Ninth Circuit Court of Appeals to
ensure the last issues in this prolonged litigation are first
resolved by the proper court.
The Court notes the “fundamental problem” identified in
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OPINION AND ORDER
Arjmand and Latif no longer exists in this case as a result of
the intervening revisions to the DHS TRIP procedures and, in
particular, because the TSA Administrator now is clearly the
authority to remove from or to maintain DHS TRIP applicants on
the No-Fly List.
In addition, when reviewing the issues under
§ 46110, the Ninth Circuit would now have the benefit of the
evidentiary and procedural record developed in this Court and on
which the TSA Administrator acted and can now “grant[] relief
without reviewing and modifying TSC orders.”
This is so because
the TSA issued the final order maintaining Plaintiffs on the NoFly List pursuant to the revised procedures and the TSA has the
unfettered authority to remove Plaintiffs from the No-Fly List in
the event the Ninth Circuit determines Plaintiffs should be
removed.
A.
See Arjmand, 745 F.3d at 1302.
TSC Responsibility for Initial Placement on the No-Fly
List
Plaintiffs, nevertheless, contend their substantive claims
still implicate TSC orders because TSC is the agency responsible
for the initial placement of individuals on the No-Fly List and
has the ongoing responsibility for reviewing and, if necessary,
removing individuals from the List outside of the DHS TRIP
process.
Plaintiffs, however, are not acting outside of the DHS
TRIP process, and, by seeking only prospective relief, Plaintiffs
are merely attempting to redress their ongoing placement on the
No-Fly List.
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After employing the revised DHS TRIP process,
OPINION AND ORDER
therefore, the TSA Administrator’s order is the proximate reason
why Plaintiffs remain on the No-Fly List and reversal of the TSA
orders as to the remaining Plaintiffs would completely satisfy
their requests for relief.
A district court, however, does not
have jurisdiction to do so under § 46110.
B.
TSC’s Role in Disclosures to Plaintiffs and Compilation
of Record for the TSA Administrator
Plaintiffs, as noted, also contend jurisdiction over their
substantive claims remains in this Court because of TSC’s role in
determining the information that is conveyed to the traveler and
the information that is ultimately conveyed to the TSA
Administrator.
With respect to TSC’s role in determining the
information that may be released to the traveler, this Court has
already determined that Defendants properly identified the
information that could be released and the information that must
be withheld when the Court granted summary judgment to Defendants
on Plaintiffs’ procedural claims.
Oct. 6, 2016.
See Order (#337) issued
Plaintiffs’ argument regarding TSC’s control over
the information that is released to the traveler, therefore, is
an argument that goes to this Court’s jurisdiction over the
already-adjudicated procedural claims rather than the Court’s
jurisdiction over the purely substantive claims that remain.4
4
The Court notes this consideration may effectively limit
this Court’s rationale to the facts of this case. In the
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OPINION AND ORDER
Moreover, Plaintiffs are incorrect that TSC exercises
exclusive control over selecting the information that is provided
to the TSA Administrator.
As noted, it is undisputed that the
TSA Administrator may request additional information from TSC
and/or the nominating agency, and the Administrator could reject
TSC’s recommendation and order the traveler removed from the NoFly List if the Administrator is not satisfied with the
information provided by TSC.
Ultimately, therefore, the fact
that TSC plays a role in determining the information that can be
disclosed to the traveler and in providing a record and
recommendation to the TSA Administrator does not change the fact
that the TSA Administrator is the ultimate decision-maker with
respect to whether Plaintiffs are to remain on the No-Fly List.
Accordingly, as noted, the reviewing court can now “grant[]
relief without reviewing and modifying TSC orders.”
See Arjmand,
745 F.3d at 1302.
C.
Necessity of a Court Capable of Receiving Evidence
Finally, Plaintiffs contend their substantive claims require
ordinary course, judicial review of a DHS TRIP determination will
involve both procedural and substantive aspects because the
reviewing court must determine both whether the Defendants
provided sufficient information to the traveler and whether the
TSA Administrator’s substantive decision is supported by the
record. Because only Plaintiffs’ substantive claims remain
pending in this case, however, this Court cannot determine
whether the hybrid nature of an ordinary judicial review of a DHS
TRIP determination would lead to a different result.
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OPINION AND ORDER
a forum in a court that is capable of receiving evidence.
Plaintiffs, in particular, assert their substantive claims are
grounded in substantive due process, and, therefore, the Court
will be required to consider information outside of the
administrative record as to each individual Plaintiff.
This
argument stems from the Ninth Circuit’s discussion in Ibrahim in
which the court observed:
Our interpretation of section 46110 is consistent not
merely with the statutory language but with common
sense as well. Just how would an appellate court
review the agency’s decision to put a particular name
on the list? There was no hearing before an
administrative law judge; there was no notice-andcomment procedure. For all we know, there is no
administrative record of any sort for us to review. So
if any court is going to review the government’s
decision to put Ibrahim’s name on the No–Fly List, it
makes sense that it be a court with the ability to take
evidence.
Ibrahim, 538 F.3d at 1256.
The landscape as to this issue in this case, however, has
changed significantly since Ibrahim.
The revised DHS TRIP
procedures generated an administrative record for the court of
appeals to review, and that record includes all information
material to the traveler remaining on the No-Fly List as well as
any information that the traveler chooses to submit after being
provided notice of the reasons for his or her inclusion on the
No-Fly List and an unclassified summary of the evidence
supporting those reasons.
Moreover, to the extent that
Plaintiffs contend their constitutional claims (as opposed to
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OPINION AND ORDER
their claims under the Administrative Procedure Act) challenging
the merits of their ongoing placement on the No-Fly List would
implicate information beyond the administrative record, the court
of appeals would, nonetheless, have jurisdiction over such claims
because they are “inextricably intertwined” with the TSA order.
See Latif, 686 F.3d at 1128 (“The ‘inescapably intertwined’
doctrine ‘prevents plaintiffs from crafting constitutional tort
claims either as a means of relitigat[ing] the merits of the
previous administrative proceedings, or as a way of evading
entirely established administrative procedures.’”)(quoting
Americopters, 441 F.3d at 736).
In any event, as a practical matter a civil plaintiff’s
constitutional claim is unlikely to be decided on a record
materially different from the administrative record because a
civil plaintiff could not likely obtain through discovery the
type of sensitive, national-security information that Defendants
are entitled to withhold during the administrative process under
the revised DHS TRIP procedures.
See Latif, 28 F. Supp. 3d at
1162 (holding although Defendants must provide Plaintiffs with
notice of the reasons for their placement on the No-Fly List that
is “reasonably calculated to permit each Plaintiff to submit
evidence relevant to the reasons for their respective inclusions
on the No–Fly List,” such disclosures by Defendants “may be
limited or withheld altogether because any such disclosure would
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OPINION AND ORDER
create an undue risk to national security.”).
In light of the
fact that Plaintiffs already have had an opportunity to submit
responsive information during the revised DHS TRIP process that
will be available to the reviewing court as part of the
administrative record (see id.), the record on which a court
would decide the substantive due-process claims would be
materially similar to the administrative record.
Ultimately Plaintiffs seek an up-or-down determination of
their substantive claims regarding whether Defendants have
sufficient justification to maintain Plaintiffs on the No-Fly
List.
The Court concludes such a determination falls squarely
within the scope of the final orders issued by the TSA
Administrator at the conclusion of the revised DHS TRIP process.
Because § 46110 “‘grants exclusive jurisdiction to the federal
courts of appeals to ‘review’ the ‘order[s]’ of a number of
agencies, including the Transportation Security Administration,’”
this Court concludes jurisdiction over Plaintiffs’ remaining
substantive claims lies in the Ninth Circuit Court of Appeals.
See Arjmand, 745 F.3d at 1302 (quoting Ibrahim, 538 F.3d at
1254).
Accordingly, on this record the Court GRANTS Defendants’
Motion (#348) to Dismiss for Lack of Jurisdiction.
PLAINTIFFS’ MOTION (#352) FOR LEAVE TO CONDUCT LIMITED
JURISDICTIONAL DISCOVERY
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OPINION AND ORDER
Plaintiffs move for leave to conduct jurisdictional
discovery before resolution of Defendants’ Motion (#348) to
Dismiss for Lack of Jurisdiction.
In particular, Plaintiffs seek
discovery of information regarding (1) TSC’s control over and
access to information; (2) TSC decision-making and actions
leading up to its recommendation to the TSA Administrator; and
(3) conduct by TSC and TSA specific to Plaintiffs’ DHS TRIP
inquiries.
I.
TSC’s Control Over and Access to Information
In the first category of proposed jurisdictional discovery,
Plaintiffs seek details about the procedures under which TSC
provides information to the TSA Administrator, including whether
TSC is required to provide to the Administrator all information
that TSC considered, including information inconsistent with the
decision.
In this regard the parties stipulated as follows:
The information the TSC provides to the TSA
administrator may be a summary of the information 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.
Joint Stipulations (#347) Regarding Jurisdiction at ¶ 18.
To the
extent that the record is unclear or insufficient, however, the
TSA Administrator has the authority to request additional
information from either TSC or a nominating agency.
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OPINION AND ORDER
Id. at ¶ 19.
Moreover, to the extent that information is material (either
inculpatory or exculpatory) to the Defendants’ No-Fly List
determination, that information must be in the administrative
record provided to the reviewing court because Defendants are
required either (a) to provide that information to each Plaintiff
“in order to permit such Plaintiff to respond meaningfully to the
reasons he has been placed on the No-Fly List” or (b) to explain
to the reviewing court why that information could not be
disclosed to the Plaintiff.
See Latif, 2016 WL 1239925, at *15-
*16.
Ultimately, however, the Court concludes Plaintiffs’
requested discovery is not relevant to Defendants’ Motion for a
more fundamental reason:
The TSA Administrator now has the
authority to seek additional information and, in any event, makes
the final decision regarding whether the traveler remains on the
No-Fly List.
The mere fact that TSC plays a role in providing
information and a recommendation to the TSA Administrator does
not mean the court of appeals could not “grant[] relief” on
Plaintiffs’ purely substantive claims “without reviewing and
modifying TSC orders.”
See Arjmand, 745 F.3d at 1302.
Accordingly, the Court concludes discovery as to TSC’s
control over and access to information is not necessary to
resolve the jurisdictional question at issue in Defendants’
Motion.
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OPINION AND ORDER
II.
TSC Decision-Making and Actions Before Issuing its
Recommendation to the TSA Administrator
In their second category of requested jurisdictional
discovery, Plaintiffs seek information regarding (1) TSC’s
authority to remove individuals unilaterally from the No-Fly List
before issuing a recommendation to the TSA Administrator and
(2) TSC’s role in determining or providing the relevant criteria
relevant to the Plaintiffs’ placement on the No-Fly List.
The Court finds Plaintiffs’ arguments regarding TSC’s
authority to remove individuals unilaterally from the No-Fly List
are speculative and unpersuasive.
Moreover, this case is not
about individuals who have been removed from the No-Fly List, but
instead is about the remaining Plaintiffs who have been
maintained on the No-Fly List.
In other words, if TSC
unilaterally removed an individual from the No-Fly List, there
would not be any basis for judicial review in circumstances such
as those raised here, and, therefore, the ability of the court of
appeals to provide relief under § 46110 would not be implicated.
Thus, TSC’s authority does not affect a reviewing court’s ability
to grant relief to a traveler who remains on the No-Fly List
without the court reviewing and modifying TSC orders.
Finally, the Court concludes how TSC determines the
applicable criteria is not relevant to the reviewing court’s
substantive consideration of whether the TSA Administrator
properly concluded those criteria were satisfied by the record.
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OPINION AND ORDER
Again, the ability of the court of appeals to “grant[] relief” on
Plaintiffs’ purely substantive claims “without reviewing and
modifying TSC orders” is unaffected by the details of how TSC
determines the criteria that are applicable.
See Arjmand, 745
F.3d at 1302.
III. Plaintiff-Specific Information
Finally, Plaintiffs seek information regarding the handling
of each of Plaintiffs’ DHS TRIP inquiries by TSC and TSA.
In
particular, Plaintiffs seek information as to whether TSC
provided the TSA Administrator with all of the information on
which it relied in making its recommendation; whether the TSA
Administrator requested additional information; and, if so,
whether TSC provided that information.
Again, the Court concludes this information is not relevant
to the fundamental issue of whether a reviewing court can
“grant[] relief without reviewing and modifying TSC orders.”
id.
See
With respect to Plaintiffs’ substantive claims, the sole
responsibility of the reviewing court would be to determine
whether the TSA Administrator’s determination is sufficiently
supported by the already-developed record.
On this record, therefore, the Court concludes the
jurisdictional discovery that Plaintiffs seek is not relevant to
the jurisdictional question presented by Defendants’ Motion
(#348) to Dismiss for Lack of Jurisdiction, and, therefore, the
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OPINION AND ORDER
Court DENIES Plaintiffs’ Motion (#352) for Leave to Conduct
Limited Jurisdictional Discovery.
CONCLUSION
For these reasons, the Court GRANTS Defendants’ Motion
(#348) to Dismiss for Lack of Jurisdiction, which the Court
construes as a Motion for Summary Judgment, and DENIES
Plaintiffs’ Motion (#352) for Leave to Conduct Limited
Jurisdictional Discovery.
The Court directs the parties to confer and to submit to the
Court no later than May 12, 2017, a proposed form of judgment
that summarizes the Court’s disposition of all issues litigated
to date and that separately identifies those as to which the
Court concludes it lacks jurisdiction to proceed.
After the
Court enters its concluding judgment, the Court will then
consider any petition(s) for attorneys’ fees.
IT IS SO ORDERED.
DATED this 21st day of April, 2017.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
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OPINION AND ORDER
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