351 F.Supp.2d 1119 (W.D.Wash. 2005), C04-763, Green v. Transportation Security Admin.

Docket NºC04-763Z.
Citation351 F.Supp.2d 1119
Party NameMichelle D. GREEN, et al., Plaintiffs, v. TRANSPORTATION SECURITY ADMINISTRATION, et al., Defendants.
Case DateJanuary 07, 2005
CourtUnited States District Courts, 9th Circuit, United States District Court (Western District of Washington)

Page 1119

351 F.Supp.2d 1119 (W.D.Wash. 2005)

Michelle D. GREEN, et al., Plaintiffs,

v.

TRANSPORTATION SECURITY ADMINISTRATION, et al., Defendants.

No. C04-763Z.

United States District Court, W.D. Washington, At Seattle.

Jan. 7, 2005

Page 1120

[Copyrighted Material Omitted]

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Aaron H. Caplan, American Civil Liberties Union of Washington, Seattle, WA, Catherine Yonsoo Kim, American Civil Liberties Union (N.Y.), Immigrants' Rights Project, New York City, Michael E. Kipling, Summit Law Group, Seattle, WA, Reginald T. Shuford, American Civil Liberties Union (N.Y.), Immigrants' Rights Project, New York City, for Michelle D. Green, John F. Shaw, David C. Fathi, Sarosh Syed, Mohamed Ibrahim, David Nelson, Alexander Hay on behalf of themselves and all others similarly situated, Plaintiffs.

Brian C. Kipnis, U.S. Attorney's Office (SEA), Seattle, WA, Diane Kelleher, U.S. Department of Justice, Joseph William LoBue, U.S. Department of Justice, Civil Division Federal Programs, Washington, DC, for Transportation Security Administration, David M. Stone, Department of Homeland Security, Tom Ridge, Defendants.

ORDER

ZILLY, District Judge.

I. INTRODUCTION

This matter comes before the Court on Defendants' motion to dismiss for lack of subject matter jurisdiction and Defendants' motion to dismiss for failure to state a claim upon which relief can be granted, docket no. 15. The Court heard oral argument on these motions on November 4, 2004, and took the matter under advisement. The Court now, being fully advised, enters the following Order.

II. BACKGROUND

The Transportation Security Administration ("TSA"), an agency within the United States Department of Homeland Security, is responsible for security in all modes of transportation. Longmire Decl., docket 16, ¶ 3. As part of its statutory mandate with respect to aviation security, the TSA is required to provide for the screening for weapons, explosives, and other destructive substances, of all passengers and property that will be carried on passenger aircraft. To further these purposes, the TSA has implemented regulations requiring each aircraft operator to adopt security programs. When the TSA determines that additional security measures (in addition to the security programs) are necessary, it issues "Security Directives" to regulated aircraft operators. Id. at ¶ 5. Compliance by air carriers with Security Directives and emergency amendments is mandatory.

TSA has established Security Directives relating to two groups of individuals who have been assessed to pose a risk to aviation safety. The first group, identified on a "No-Fly List," consists of individuals who are prohibited from flying altogether. The second group, identified on a "Selectee List," consists of individuals who must be "selected" by air carriers for additional screening before they are permitted to fly. The Security Directives also prescribe the procedures to be followed, and the specific security measures to be taken by air carriers, when individuals identified on the No-Fly or Selectee lists seek to board an aircraft. Id. at ¶ 7. In this Order, both the "No-Fly List" and the "Selectee List" are collectively referred to as the "No-Fly List."

The Defendants distribute updated versions of the No-Fly List, as attachments to Security Directives and Emergency Amendments, to commercial airlines operating

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within the United States. The No-Fly List is also distributed to airport security personnel, customs and immigration agents, and other federal law-enforcement agencies. For security reasons, the TSA will not divulge the specific security measures followed by air carriers when they encounter an individual identified on the No-Fly List. Longmire Decl., docket 16, ¶ 9.

Plaintiffs commenced this action on behalf of themselves and other similarly situated individuals to challenge TSA's adoption, maintenance, dissemination, administration, and management of both the No-Fly List and the Selectee List. 1

Plaintiffs allege they are innocent passengers with no links to terrorist activity, but have names similar or identical to names on the No-Fly List. Compl., docket no. 1, ¶ 3. Plaintiffs allege that when they travel by air, they are mistakenly identified by airport personnel, often in full view of co-workers and the general traveling public, as individuals whose names actually appear on the No-Fly List. As a result, Plaintiffs allege that airline personnel subjected them to enhanced security screening, including physical pat-downs, wanding, and physical searches of luggage. Plaintiffs allege that they do not feel free to leave. To date, no named Plaintiff has missed a flight or been subjected to enhanced screening for more than one hour.

Plaintiffs allege that Defendants have failed to disclose basic questions such as the criteria for placing names on or removing names from the No-Fly List, procedures for amending information on the No-Fly List, or rules for maintaining or managing the No-Fly List.

The TSA has instituted an ombudsman process whereby individuals can contest their placement on the No-Fly List. Defendants have submitted documents which describe the clearance process administered by the Office of the Ombudsman. See Notice of Filing, docket no. 26, Ex. A. However, Plaintiffs allege that the ombudsman process is not publicized, and individuals who are mistakenly associated with the No-Fly List are told that there is no recourse.

Plaintiffs allege that Defendants' actions in maintenance, management, and dissemination of the No-Fly list are unconstitutional. Plaintiffs specifically allege that the Defendants have "deprive[d] Plaintiffs of liberty and property interests protected by the Fifth Amendment" and have "subjected [Plaintiffs] to unreasonable searches and seizures in violation of the Fourth Amendment." Compl., docket no. 1, pp. 26-27. Plaintiffs seek declaratory judgment that the maintenance, management, and dissemination of the No-Fly List is unconstitutional, and seek to require Defendants to remedy the due process and Fourth Amendment defects of the No-Fly List. Id. at p. 27.

Defendants have moved to dismiss Plaintiffs' Complaint for lack of subject matter jurisdiction. Defendants contend that the Security Directives are final orders issued by the TSA, and that any action for judicial review must be filed with the Court of Appeals. In the alternative, Defendants have moved to dismiss Plaintiffs' claims for failure to state a claim for which relief can be granted. See D. Mot. to Dismiss, docket no. 15.

Page 1123

By Minute Order dated October 29, 2004, docket no. 25, the Court ordered Defendants to submit for in camera and ex parte review the following:

(a) A copy of the applicable Security Directives;

(b) A copy of the ombudsman processes available for expunging innocent passengers' names from the No-Fly List;

(c) A copy of the procedures used for processing Passenger Identity Verification Forms.

Pursuant to the Court's Order, on November 2, 2004, Defendants submitted six Security Directives procedures, portions of the No-Fly List and Selectee List, the Applicable Policy Memorandum dated July 9, 2004 and April 22, 2003, and certain other materials. The Court has reviewed the Defendants' submissions in camera and these documents have been filed under seal.

III. ANALYSIS OF JURISDICTIONAL ISSUES

(A) Special Review Statutes for Orders under the Federal Aviation Act.

Congress has enacted a special review statute for final orders of the Secretary of Transportation promulgated under the Federal Aviation Act. The applicable statute at issue, 49 U.S.C. § 46110(a), relating to judicial review, provides, in part, as follows:

[A] person disclosing a substantial interest in an order issued by the Secretary of Transportation (or the Under Secretary of Transportation for Security with respect to security duties and powers designated to be carried out by the Under Secretary or the Administrator of the Federal Aviation Administration with respect to aviation duties and powers designated to be carried out by the Administrator) in whole or in part under this part, part B, or subsection ( l ) or ( s ) of section 114 may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business. The petition must be filed not later than 60 days after the order is issued. 2

Section 46110(a) and its predecessor statute found at § 1486(a) are "not to be given a narrow, technical reading; instead it is to be interpreted expansively." San Diego Air Sports Center, Inc. v. Fed. Aviation Admin., 887 F.2d 966, 968 (9th Cir.1989) (approving a similar interpretation of the predecessor statute by the Fourth, Seventh, Eighth and District of Columbia Circuits). The San Diego Air Sports court stated that it agreed with other courts that "the purposes of special review statutes--coherence and economy--are best served if courts of appeal exercise their exclusive jurisdiction over final agency actions." Id. (quoting Sima Prods. Corp. v. McLucas, 612 F.2d 309, 313 (7th Cir.), cert. denied, 446 U.S. 908, 100 S.Ct. 1834, 64 L.Ed.2d 260 (1980)) (emphasis added). Thus, "the court of appeals' jurisdiction is exclusive with regard to review of final FAA action." Clark v. Busey, 959 F.2d 808, 811 (9th Cir.1992).

Plaintiffs raise two arguments in favor of district court jurisdiction. First, Plaintiffs argue that the Security Directives are not "final orders" within the meaning of § 46110. Second, even if they constitute final orders, jurisdiction is proper because (a) the agency decision did not consider the claims raised by Plaintiffs, and (b) Plaintiffs raise broad constitutional challenges. In addition, Plaintiffs argue that in

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27 practice notes
  • 795 F.Supp.2d 63 (D.D.C. 2011), C. A. 10-02066 (HHK), Durso v. Napolitano
    • United States
    • Federal Cases United States District Courts United States District Court (Columbia)
    • July 5, 2011
    ...on other grounds, Tooley v. Napolitano, 556 F.3d 836 (D.C.Cir.2009), rev'd on rehearing, 586 F.3d 1006 (D.C.Cir.2009); Green v. TSA, 351 F.Supp.2d 1119, 1125 [4] The inescapable-intertwinement doctrine applies only where a claim does not directly challenge the order in question; if it does,......
  • Redfern v. Napolitano, 050911 MADC, 10-12048-DJC
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Massachusetts
    • May 9, 2011
    ...denied, 549 U.S. 1110 (2007); TSA security directives establishing No-Fly or Selectee lists for enhanced screening, Green v. TSA , 351 F.Supp.2d 1119, 1124-25 (W.D. Wash. 2005); the use of X-ray devices for inspecting carry-on baggage, Sima Prods. Corp. v. McLucas , 612 F.2d 309, 312 (7th C......
  • Making the No Fly List fly: a due process model for terrorist watchlists.
    • United States
    • Yale Law Journal Vol. 115 Nbr. 8, June 2006
    • June 1, 2006
    ...and TSA had ceased to apply the existing regulations in the interim. (41.) See Complaint at 6, Green v. Transp. Sec. Admin., 351 F. Supp. 2d 1119 (W.D. Wash. 2005) (No. C04-763Z), available at http://news.findlaw.com/cnn/docs/aclu/greenvtsa40604cmp. pdf. (42.) Swarns, supra note 1. (43.)T S......
  • 798 F.Supp.2d 7 (D.D.C. 2011), C. A. 10-01966 (HHK), Roberts v. Napolitano
    • United States
    • Federal Cases United States District Courts United States District Court (Columbia)
    • July 7, 2011
    ...grounds sub nom. Tooley v. Napolitano, 556 F.3d 836 (D.C.Cir.2009), rev'd on rehearing, 586 F.3d 1006 (D.C.Cir.2009); Green v. TSA, 351 F.Supp.2d 1119, 1125 [2] As in Durso, the fact that plaintiffs also seek damages is irrelevant to the Court's inescapable-intertwinement analysis because t......
  • Request a trial to view additional results
26 cases
  • 795 F.Supp.2d 63 (D.D.C. 2011), C. A. 10-02066 (HHK), Durso v. Napolitano
    • United States
    • Federal Cases United States District Courts United States District Court (Columbia)
    • July 5, 2011
    ...on other grounds, Tooley v. Napolitano, 556 F.3d 836 (D.C.Cir.2009), rev'd on rehearing, 586 F.3d 1006 (D.C.Cir.2009); Green v. TSA, 351 F.Supp.2d 1119, 1125 [4] The inescapable-intertwinement doctrine applies only where a claim does not directly challenge the order in question; if it does,......
  • Redfern v. Napolitano, 050911 MADC, 10-12048-DJC
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Massachusetts
    • May 9, 2011
    ...denied, 549 U.S. 1110 (2007); TSA security directives establishing No-Fly or Selectee lists for enhanced screening, Green v. TSA , 351 F.Supp.2d 1119, 1124-25 (W.D. Wash. 2005); the use of X-ray devices for inspecting carry-on baggage, Sima Prods. Corp. v. McLucas , 612 F.2d 309, 312 (7th C......
  • 798 F.Supp.2d 7 (D.D.C. 2011), C. A. 10-01966 (HHK), Roberts v. Napolitano
    • United States
    • Federal Cases United States District Courts United States District Court (Columbia)
    • July 7, 2011
    ...grounds sub nom. Tooley v. Napolitano, 556 F.3d 836 (D.C.Cir.2009), rev'd on rehearing, 586 F.3d 1006 (D.C.Cir.2009); Green v. TSA, 351 F.Supp.2d 1119, 1125 [2] As in Durso, the fact that plaintiffs also seek damages is irrelevant to the Court's inescapable-intertwinement analysis because t......
  • Durso v. Napolitano, 070511 DCDC, 10-02066 (HHK)
    • United States
    • Federal Cases United States District Courts United States District Court (Columbia)
    • July 5, 2011
    ...other grounds, Tooley v. Napolitano, 556 F.3d 836 (D.C. Cir. 2009), rev'd on rehearing, 586 F.3d 1006 (D.C. Cir. 2009); Green v. TSA, 351 F.Supp.2d 1119, 1125 (W.D. Wash. [4] The inescapable-intertwinement doctrine applies only where a claim does not directly challenge the order in question......
  • Request a trial to view additional results
1 books & journal articles
  • Making the No Fly List fly: a due process model for terrorist watchlists.
    • United States
    • Yale Law Journal Vol. 115 Nbr. 8, June 2006
    • June 1, 2006
    ...and TSA had ceased to apply the existing regulations in the interim. (41.) See Complaint at 6, Green v. Transp. Sec. Admin., 351 F. Supp. 2d 1119 (W.D. Wash. 2005) (No. C04-763Z), available at http://news.findlaw.com/cnn/docs/aclu/greenvtsa40604cmp. pdf. (42.) Swarns, supra note 1. (43.)T S......

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