435 F.3d 1125 (9th Cir. 2006), 04-15736, Gilmore v. Gonzales

Docket Nº:04-15736.
Citation:435 F.3d 1125
Party Name:John GILMORE, Plaintiff-Appellant, v. Alberto R. GONZALES, in his official capacity as Attorney General of the United States; Robert Mueller, in his official capacity as Director of the Federal Bureau of Investigation; Norman Mineta, in his official capacity as Secretary of Transportation; Michael Chertoff, in his official capacity as Secretary of
Case Date:January 26, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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435 F.3d 1125 (9th Cir. 2006)

John GILMORE, Plaintiff-Appellant,

v.

Alberto R. GONZALES, in his official capacity as Attorney General of the United States; Robert Mueller, in his official capacity as Director of the Federal Bureau of Investigation; Norman Mineta, in his official capacity as Secretary of Transportation; Michael Chertoff, in his official capacity as Secretary of the Department of Homeland Security; UAL Corporation, aka United Airlines; Southwest Airlines; Marion C. Blakely, in her official capacity as Administrator of the Federal Aviation Administration; Kip Hawley, in his official capacity as Director of the Transportation Security Administration, Defendants-Appellees.

No. 04-15736.

United States Court of Appeals, Ninth Circuit.

January 26, 2006.

Argued and Submitted Dec. 8, 2005.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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William M. Simpich, Oakland, California; James P. Harrison, Sacramento, California, for the plaintiff-appellant.

James P. Rathvon, Piper Rudnick LLP, Washington, D.C.; Jane H. Barrett, Piper Rudnick LLP, Los Angeles, California, for the defendant-appellee Southwest Airlines Co.

Peter D. Keisler, Assistant Attorney General; Kevin V. Ryan, United States Attorney; Douglas N. Letter and Joshua Waldman, Department of Justice, Washington, D.C., for defendants-appellees Alberto R. Gonzales, Attorney General, et al.

Lee Tien and Kurt Opsahl, San Francisco, California, for amicus Electronic Frontier Foundation.

Marc Rotenberg and Marcia Hofmann, Washington, D.C., for amicus Electronic Privacy Information Center.

Deborah Pierce and Linda Ackerman, San Francisco, California; Rachel Meeropol, New York, New York, for amici The Center for Constitutional Rights and Privacy Activism.

Reginald T. Shuford and Catherine Y. Kim, New York, New York; Aaron Caplan, Seattle, Washington; Michael E. Kipling, Summit Law Group, Seattle, Washington, for amici American Civil Liberties Union Foundation and American Civil Liberties Union for Washington.

Appeal from the United States District Court for the Northern District of California Susan Yvonne Illston, D.C. No. CV-02-03444-SI, District Judge, Presiding.

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Before: Stephen S. Trott, Thomas G. Nelson, and Richard A. Paez, Circuit Judges.

OPINION

PAEZ, Circuit Judge:

John Gilmore ("Gilmore") sued Southwest Airlines and the United States Attorney General, Alberto R. Gonzales, among other defendants, 1 alleging that the enactment and enforcement of the Government's civilian airline passenger identification policy is unconstitutional. The identification policy requires airline passengers to present identification to airline personnel before boarding or be subjected to a search that is more exacting than the routine search that passengers who present identification encounter. Gilmore alleges that when he refused to present identification or be subjected to a more thorough search, he was not allowed to board his flights to Washington, D.C. Gilmore asserts that because the Government refuses to disclose the content of the identification policy, it is vague and uncertain and therefore violated his right to due process. He also alleges that when he was not allowed to board the airplanes, Defendants violated his right to travel, right to be free from unreasonable searches and seizures, right to freely associate, and right to petition the government for redress of grievances.

Before we address the merits of Gilmore's claims, we must consider the jurisdictional and standing issues raised by Defendants. The Government contends that the district court lacked subject matter jurisdiction to entertain this action because, under 49 U.S.C. § 46110(a), Gilmore's claims can only be raised by a petition for review in the courts of appeal. Defendants also contend that Gilmore lacks standing to challenge anything other than the identification policy, such as the Consumer Assisted Passenger Prescreening System ("CAPPS") and so-called No-Fly and Selectee lists. The district court determined that Gilmore had standing to challenge only the identification policy, and that it lacked jurisdiction to hear Gilmore's due process challenge.2 After reviewing the sensitive security information materials that the Government filed with this court ex parte and in camera, we agree with the Government that the district court lacked jurisdiction and that Gilmore had standing to challenge only the identification policy.

However, as explained below, we transfer Gilmore's complaint to this court pursuant to 28 U.S.C. § 1631 and treat it as a petition for review. Accordingly, we address the merits of each of Gilmore's constitutional claims with respect to the identification policy. We hold that neither the identification policy nor its application to

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Gilmore violated Gilmore's constitutional rights, and therefore we deny the petition.

Background

On July 4, 2002, Gilmore, a California resident and United States citizen, attempted to fly from Oakland International Airport to Baltimore-Washington International Airport on a Southwest Airlines flight. Gilmore intended to travel to Washington, D.C. to "petition the government for redress of grievances and to associate with others for that purpose." He was not allowed to fly, however, because he refused to present identification to Southwest Airlines when asked to do so.

Gilmore approached the Southwest ticketing counter with paper tickets that he already had purchased. When a Southwest ticketing clerk asked to see his identification, Gilmore refused. Although the clerk informed Gilmore that identification was required, he refused again. Gilmore asked whether the requirement was a government or Southwest rule, and whether there was any way that he could board the plane without presenting his identification. The clerk was unsure, but posited that the rule was an "FAA security requirement." The clerk informed Gilmore that he could opt to be screened at the gate in lieu of presenting the requisite identification. The clerk then issued Gilmore a new boarding pass, which indicated that he was to be searched before boarding the airplane. At the gate, Gilmore again refused to show identification. In response to his question about the source of the identification rule, a Southwest employee stated that it was a government law. Gilmore then met with a Southwest customer service supervisor, who told him that the identification requirement was an airline policy. Gilmore left the airport, without being searched at the gate.

That same day, Gilmore went to San Francisco International Airport and attempted to buy a ticket for a United Airlines flight to Washington, D.C. While at the ticket counter, Gilmore saw a sign that read: "PASSENGERS MUST PRESENT IDENTIFICATION UPON INITIAL CHECK-IN." Gilmore again refused to present identification when asked by the ticketing agent. The agent told him that he had to show identification at the ticket counter, security checkpoint, and before boarding; and that there was no way to circumvent the identification policy. A United Airlines Service Director told Gilmore that a United traveler without identification is subject to secondary screening, but did not disclose the source of the identification policy. United's Ground Security Chief reiterated the need for identification, but also did not cite the source of the policy. The Security Chief informed Gilmore that he could fly without presenting identification by undergoing a more intensive search, i.e. by being a "selectee." A "selectee" search includes walking through a magnetometer, being subjected to a handheld magnetometer scan, having a light body patdown, removing one's shoes, and having one's carry-on baggage searched by hand and a CAT-scan machine. Gilmore refused to allow his bag to be searched by hand and was therefore barred from flying.

The Security Chief told Gilmore that he did not know the law or government regulation that required airlines to enforce the identification policy. Another member of United's security force later told Gilmore that the policy was set out in government Security Directives, which he was not permitted to disclose. He also told Gilmore that the Security Directives were revised frequently, as often as weekly; were transmitted orally; and differed according to airport. The airline security personnel could not, according to the Government, disclose to Gilmore the Security Directive that imposed the identification policy because

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the Directive was classified as "sensitive security information" ("SSI").3 Gilmore left the airport and has not flown since September 11, 2001 because he is unwilling to show identification or be subjected to the "selectee" screening process.

Gilmore filed a complaint against Defendants in the United States District Court for the Northern District of California, challenging the constitutionality of several security measures, which he collectively referred to as "the Scheme," including the identification policy, CAPPS and CAPPS II, and No-Fly and Selectee lists.4 Gilmore alleged that these government security policies and provisions violated his right to due process, right to travel, right to be free from unreasonable searches and seizures, right to freely associate, and right to petition the government for redress of grievances. Gilmore also alleged that "similar requirements have been placed on travelers who use government-regulated passenger trains, and that similar requirements are being instituted for interstate bus travel." Defendants filed separate motions to dismiss for lack of subject matter jurisdiction under Rule12(b)(1) of the Federal Rules of Civil Procedure and failure to state a claim upon which relief...

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