Kashem v. Barr

• Citation: 941 F.3d 358
• Decision Date: 21 October 2019
• Docket Number: No. 17-35634,17-35634
• Parties: Faisal Nabin KASHEM; Raymond Earl Knaeble IV; Amir Meshal; Stephen Durga Persaud, Plaintiffs-Appellants, v. William P. BARR, Attorney General; Christopher A. Wray; Charles H. Kable IV, Director, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

941 F.3d 358

Faisal Nabin KASHEM; Raymond Earl Knaeble IV; Amir Meshal; Stephen Durga Persaud, Plaintiffs-Appellants,

v.William P. BARR, Attorney General; Christopher A. Wray; Charles H. Kable IV, Director, Defendants-Appellees.

No. 17-35634

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 9, 2018 Portland, Oregon

Filed October 21, 2019

Hina Shamsi (argued) and Hugh Handeyside, American Civil Liberties Union Foundation, New York, New York; Ahilan T. Arulanantham, American Civil Liberties Union Foundation of Southern California, Los Angeles, California; Steven M. Wilker, Tonkon Torp LLP, Portland, Oregon; Richard M. Steingard, Law Offices of Richard M. Steingard, Los Angeles, California; Joel Leonard, Elliott Ostrander & Preston PC, Portland, Oregon; for Plaintiffs-Appellants.

Joshua Waldman (argued) and Sharon Swingle, Appellate Staff; Billy J. Williams, United States Attorney; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

Before: Raymond C. Fisher and Consuelo M. Callahan, Circuit Judges, and Cathy Ann Bencivengo, District Judge.^*

FISHER, Circuit Judge:

The plaintiffs are on the No Fly List, which prohibits them from boarding commercial aircraft flying to, from or within the United States or through United States airspace. They challenge, under the Due Process Clause of the Fifth Amendment to the United States Constitution, both their inclusion on the No Fly List and the sufficiency of the procedures available for contesting their inclusion on the list. Specifically, the plaintiffs argue (1) the criteria for inclusion on the No Fly List are unconstitutionally vague; (2) the procedures for challenging inclusion on the list fail to satisfy procedural due process; and (3) their inclusion on the list violates their substantive due process rights. The district court granted summary judgment to the government on the vagueness and procedural due process claims and dismissed the substantive due process claims for lack of jurisdiction under 49 U.S.C. § 46110. We affirm.

The district court properly rejected the plaintiffs’ as-applied vagueness challenges. A law is unconstitutionally vague when it "fails to give ordinary people fair notice of the conduct it punishes." Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 2556, 192 L.Ed.2d 569 (2015). Here, the No Fly List criteria are not impermissibly vague merely because they require a prediction of future criminal conduct, see id. at 2561 ; Schall v. Martin , 467 U.S. 253, 278–79, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984) ; Jurek v. Texas , 428 U.S. 262, 272–76, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (plurality opinion), or because they do not delineate what factors are relevant to that determination, see Schall , 467 U.S. at 279, 104 S.Ct. 2403. The criteria are "reasonably clear," Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 505, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), in their application to the specific conduct alleged in this case, which includes, for one or more plaintiffs, associating with and financing terrorists, training with militant groups overseas and advocating terrorist violence.¹ Furthermore, the criteria are not "so standardless that [they] invite[ ] arbitrary enforcement," Johnson , 135 S. Ct. at 2556, at least as applied to these plaintiffs. Because we conclude the No Fly List criteria are not vague as applied, we decline to reach the plaintiffs’ facial vagueness challenges. See Hoffman Estates , 455 U.S. at 495, 102 S.Ct. 1186.

We also agree with the district court’s disposition of the plaintiffs’ procedural due process claims. Applying Mathews v. Eldridge , 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), we balance three considerations: (1) the plaintiffs’ liberty interests; (2) the risk of an erroneous liberty deprivation through the current traveler redress procedures, and the probable value of additional or substitute procedural safeguards; and (3) the government’s interest in national security, including the administrative burdens that additional procedural requirements would entail. Even when national security interests are at stake, moreover, the government must "take reasonable measures to ensure basic fairness to the private party and ... follow procedures reasonably designed to protect against erroneous deprivation of the private party’s interests." Al Haramain Islamic Found., Inc. v. U.S. Dep’t of Treasury (Al Haramain II ), 686 F.3d 965, 980 (9th Cir. 2012). Weighing the Mathews factors, we conclude the procedures provided to the plaintiffs were constitutionally sufficient in the case before us, or that any error was nonprejudicial.

Finally, the district court properly dismissed the plaintiffs’ substantive due process claims for lack of jurisdiction under 49 U.S.C. § 46110(a), which places review of Transportation Security Administration (TSA) orders in the courts of appeals rather than the district court. Although we previously held that substantive challenges to No Fly List determinations could be pursued in district court, the 2015 revisions to the traveler redress procedures alter our analysis. Under the new procedures, the TSA Administrator bears sole responsibility for issuing a final order maintaining or removing a traveler from the No Fly List and sole authority to remove a traveler from the list. In light of this change, the statute grants the courts of appeals exclusive jurisdiction over substantive challenges to No Fly List determinations.

I. BACKGROUND

A. Factual Background

1. The No Fly List

The No Fly List is a register of individuals who are barred from boarding commercial aircraft flying to, from, within or over the United States. It contains a subset of the individuals appearing on the government’s more extensive terrorist watchlist, formally known as the Terrorist Screening Database (TSDB).

The TSDB is maintained by the Terrorist Screening Center (TSC), which is administered by the Federal Bureau of Investigation (FBI). An individual is placed on the TSDB when there is "reasonable suspicion" that he or she is a known or suspected terrorist – i.e., when there is "articulable intelligence or information which, taken together with rational inferences from those facts, reasonably warrant[s] the determination that an individual is known or suspected to be, or has been engaged in conduct constituting, in preparation for, in aid of or related to, terrorism and terrorist activities."

The No Fly List is a subset of the TSDB. Federal departments and agencies submit nominations for inclusion on the No Fly List, and TSC decides which individuals to include. TSC then provides the list to the Transportation Security Administration (TSA), which implements the list at airports.

An individual is placed on the No Fly List when the TSC has "reasonable suspicion" to believe that he or she represents one of the following:

a. A threat of committing an act of international terrorism (as defined in 18 U.S.C. § 2331(1) ) or an act of domestic terrorism (as defined in 18 U.S.C. § 2331(5) ) with respect to an aircraft (including a threat of air piracy, or threat to an airline, passenger, or civil aviation security); or

b. A threat of committing an act of domestic terrorism (as defined in 18 U.S.C. § 2331(5) ) with respect to the homeland; or

c. A threat of committing an act of international terrorism (as defined in 18 U.S.C. § 2331(1) ) against any U.S. Government facility abroad and associated or supporting personnel, including U.S. embassies, consulates and missions, military installations (as defined by 10 U.S.C. § 2801(c)(4) ), U.S ships, U.S. aircraft, or other auxiliary craft owned or leased by the U.S. Government; or

d. A threat of engaging in or conducting a violent act of terrorism and who is operationally capable of doing so.

Each nominating agency is responsible for ensuring that its No Fly List nominations satisfy one of these four criteria. Additionally, nominating agencies are required by internal policies known as the Watchlisting Guidance to conduct periodic reviews of nominations of U.S. citizens and lawful permanent residents to the TSDB and to have internal procedures that reduce and correct errors in the nomination process.

2. The No Fly List Redress Procedures

Before 2015, an individual who was denied boarding at an airport could challenge his or her apparent inclusion on the No Fly List by submitting a complaint to the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP). DHS TRIP would forward the complaint to TSC, which would determine whether the complainant was on the No Fly List and, if so, whether the complainant’s continued inclusion on the list was justified. After TSC made this determination, DHS TRIP would advise the complainant by letter that the review was complete. These letters neither confirmed nor denied the complainant’s status on the No Fly List. Nor did they disclose the basis or bases for the complainant’s possible inclusion on the list or provide assurances about the complainant’s ability to undertake future travel.

In 2015, as a result of this litigation, the government revised these redress procedures. Under the revised procedures challenged here, an individual who has been denied boarding at an airport may apply for redress through DHS TRIP. If the complainant is on the No Fly List, DHS TRIP advises the complainant by letter that he or she is on the list and provides instructions for requesting further information. If the complainant requests further information, DHS TRIP provides a second, more detailed letter identifying the specific criterion under which the complainant has been included on the list. The second letter may also provide an unclassified summary of information supporting the complainant’s inclusion on the list, although whether such a summary is provided – and the amount and type of information included – depends...