Ibrahim v. Department of Homeland Sec.

• Decision Date: 18 August 2008
• Docket Number: No. 06-16727.,06-16727.
• Parties: Rahinah IBRAHIM, an individual, Plaintiff-Appellant, v. DEPARTMENT OF HOMELAND SECURITY; Michael Chertoff, in his official capacity as the Secretary of the Department of Homeland Security; Tom Ridge, in his official capacity as the former Secretary of the Department of Homeland Security Transportation Security Administration; Kip Hawley, in his official capacity as Administrator of the Transportation Security Administration; David M. Stone, in his official capacity as Acting Administrator of the Transportation Security Administration; Terrorist Screening Center; Donna Bucella, in her official capacity as Director of the Terrorist Screening Center; Norm Mineta, in his official capacity as Secretary of Transportation; Federal Aviation Administration; Marion C. Blakey, in her official capacity as Administrator of the Federal Aviation Administration; Federal Bureau of Investigation; Robert Mueller, in his official capacity as Director of the Federal Bureau of Investigation, Defendants-Appellees, UAL Corporation; United Airlines; David Nevins, an individual, Defendants-Appellees, John Bondanella, an individual, Defendant-Appellee, Transportation Security Operations Center; Transportation Security Intelligence Services, Defendants-Appellees, and San Francisco Airport; City of San Francisco; County of San Francisco; City of San Francisco Police Department, Defendants, Richard Pate, an individual, Defendant, John Cunningham, an individual; Elizabeth Maron, an individual, Defendants, US Investigations Services, Inc., a Virginia corporation, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

538 F.3d 1250

Rahinah IBRAHIM, an individual, Plaintiff-Appellant, v. DEPARTMENT OF HOMELAND SECURITY; Michael Chertoff, in his official capacity as the Secretary of the Department of Homeland Security; Tom Ridge, in his official capacity as the former Secretary of the Department of Homeland Security Transportation Security Administration; Kip Hawley, in his official capacity as Administrator of the Transportation Security Administration; David M. Stone, in his official capacity as Acting Administrator of the Transportation Security Administration; Terrorist Screening Center; Donna Bucella, in her official capacity as Director of the Terrorist Screening Center; Norm Mineta, in his official capacity as Secretary of Transportation; Federal Aviation Administration; Marion C. Blakey, in her official capacity as Administrator of the Federal Aviation Administration; Federal Bureau of Investigation; Robert Mueller, in his official capacity as Director of the Federal Bureau of Investigation, Defendants-Appellees, UAL Corporation; United Airlines; David Nevins, an individual, Defendants-Appellees, John Bondanella, an individual, Defendant-Appellee,

Transportation Security Operations Center; Transportation Security Intelligence Services, Defendants-Appellees, and

San Francisco Airport; City of San Francisco; County of San Francisco; City of San Francisco Police Department, Defendants,

Richard Pate, an individual, Defendant,

John Cunningham, an individual; Elizabeth Maron, an individual, Defendants,

US Investigations Services, Inc., a Virginia corporation, Defendant.

No. 06-16727.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 18, 2008.

Filed August 18, 2008.

Marwa Elzankaly, James McManis and Kevin Hammon, McManis Faulkner & Morgan, San Jose, CA, for the plaintiff-appellant.

Joshua Waldman, Appellate Staff Attorney, Peter D. Keisler, Assistant Attorney General, Scott N. Schools, U.S. Attorney, and Douglas N. Letter, Appellate Staff Attorney, U.S. Department of Justice, Washington, DC, for the federal defendants-appellees.

Sharon Douglass Mayo, Arnold & Porter LLP, San Francisco, CA, and E. Alex Beroukhim, Arnold & Porter LLP, Los Angeles, CA, for defendant-appellee John Bondanella.

Richard G. Grotch, Redwood City, CA, for defendants-appellees David Nevins, United Air Lines, Inc. and UAL Corporation.

Appeal from the United States District Court for the Northern District of California; William H. Alsup, District Judge, Presiding. D.C. No. CV-06-00545-WHA.

Before: ALEX KOZINSKI, Chief Judge, N. RANDY SMITH, Circuit Judge, and S. JAMES OTERO,^* District Judge.

Opinion by Chief Justice KOZINSKI; Dissent by Judge N.R. SMITH.

KOZINSKI, Chief Judge:

We consider our jurisdiction over the claims of a passenger detained at a U.S. airport because her name is on the federal government's No-Fly List.

Facts

Rahinah Ibrahim is a Malaysian Muslim who studied at Stanford University under a student visa. In January 2005, she tried to fly from San Francisco to Malaysia, but when she presented her ticket at the United Air Lines counter, the airline discovered her name on the federal government's No-Fly List. The airline refused to let her board, and its employee, David Nevins, called the San Francisco police.

When the police arrived, they phoned the Transportation Security Intelligence Service, which is part of the Transportation Security Administration, which is in turn part of the Department of Homeland Security. An employee named John Bondanella answered the phone at the Transportation Security Intelligence Service's office in Washington, D.C.¹ He instructed the police to prevent Ibrahim from flying, to detain her for further questioning and to call the FBI. The police did as they were told: Without explaining their reasons, they handcuffed Ibrahim in front of her fourteen-year-old daughter and took her to the police station. Two hours later, the FBI told the police to release her, and the police complied.

The following day, Ibrahim again attempted to fly from San Francisco to Malaysia. This time she was permitted to do so, but only after "enhanced" searches. She hasn't returned to the United States.

Ibrahim brought this lawsuit against United Air Lines, Bondanella, the police, the city and county of San Francisco and numerous federal officials and agencies.² She asks 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, and also asserts causes of action under 42 U.S.C. § 1983, California tort law and the Constitution, see Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Ibrahim's case against some defendants is still pending below,³ but the district court dismissed Ibrahim's claims against the federal government, the United Air Lines defendants and Bondanella, and entered final judgment as to them under Rule 54(b). Ibrahim appeals that dismissal.

Analysis

1. Ibrahim challenges placement of her name on the No-Fly List and the government's policies and procedures implementing the No-Fly List.⁴ We assume that section 702 of the Administrative Procedure Act waives sovereign immunity and provides Ibrahim with a cause of action.⁵ 5 U.S.C. § 702; Glacier Park Found v. Watt, 663 F.2d 882, 885 (9th Cir.1981) (the APA gives individuals the right to challenge illegal agency action in court). We do not decide that issue, however, because the parties haven't briefed it and the district court hasn't had an opportunity to consider it.

Instead, the district court ruled that 49 U.S.C. § 46110(a) stripped it of the jurisdiction it would otherwise have had over these claims pursuant to 28 U.S.C. § 1331. Section 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. Clark v. Busey, 959 F.2d 808, 811-12 (9th Cir.1992). The district court ruled that it lacked jurisdiction to consider Ibrahim's claims against the federal government because "the No-Fly List is an `order' [of the Transportation Security Administration] under the ambit of section 46110."

a. Placement of Ibrahim's name on the No-Fly List. The district court determined, based on undisputed facts,⁶ that an agency called the Terrorist Screening Center "actually compiles the list of names ultimately placed on the No-Fly List." And the Terrorist Screening Center isn't part of the Transportation Security Administration or any other agency named in section 46110; it is part of the Federal Bureau of Investigation, as the government concedes. Gov't's Br. at 24; see Homeland Security Presidential Directive 6 (Sept. 16, 2003) (ordering the Attorney General to "establish an organization to consolidate the Government's approach to terrorism screening"). Because 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.

Gilmore v. Gonzales, 435 F.3d 1125, 1131-33 (9th Cir.2006), is not to the contrary. Plaintiff in Gilmore wasn't on the No-Fly List; he nevertheless complained about the Transportation Security Administration's "Security Directive" that required airlines to check his name against the list. See 49 U.S.C. § 114(h)(3) (the Transportation Security Administration must "establish policies and procedures" that "require[ ] air carriers" to prevent dangerous people from boarding). Gilmore claimed that the Constitution forbade the entire "[s]cheme" of checking his identification against a watchlist. See id. at 1131. He therefore challenged the Security Directive that required the airlines to check his identification, and we held that section 46110 gave us jurisdiction over that challenge.⁷ Gilmore did not have standing to challenge the compilation of the No-Fly List and we therefore had no occasion to consider whether placement of a name on the list is an "order" of the Transportation Security Administration that can be reviewed under section 46110. When we wrote that "[t]he No-Fly and Selectee lists are Security Directives" that are "issued by [the Transportation Security Administration]," we referred, not to the lists themselves, but to the Security Directive compelling airlines to check passengers' identification against the lists. Id. at 1131 n. 4.

The government also argues that, even if the decision to put Ibrahim's name on the No-Fly List wasn't an "order" of the Transportation Security Administration, it was "inescapably intertwined" with that agency's orders and is therefore still reviewable under section 46110. But the statute provides jurisdiction to review an "order"—it says nothing about "intertwining," escapable or otherwise. The government advances no good reason why the word "order" should be interpreted to mean "order or any action inescapably intertwined with it." Instead, the government cites two cases that use the phrase "inescapably intertwined" to refer to claims that are inescapably intertwined with our review of an order. Gilmore, 435 F.3d at 1133 n. 9 (section 46110 gives the federal appellate courts jurisdiction to hear a claim that the Transportation Security Administration's Security Directives are unconstitutionally vague); Foster v. Skinner, 70 F.3d 1084 (9th Cir.1995) (section 46110 gives the federal appellate courts jurisdiction to hear a pilot's challenge to the Federal Aviation Administration's decision to suspend his license). In both cases, an agency named in section 46110 issued the order complained of, so in neither case did we consider whether an order issued by some other agency may be reviewed under section 46110.

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...