Latif v. Holder, 3:10–CV–00750–BR.

• Citation: 28 F.Supp.3d 1134
• Decision Date: 24 June 2014
• Docket Number: No. 3:10–CV–00750–BR.,3:10–CV–00750–BR.
• Court: United States District Courts. 9th Circuit. United States District Court (Oregon)
• Parties: Ayman LATIF, Mohamed Sheikh Abdirahm Kariye, Raymond Earl Knaeble IV, Steven William Washburn, 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, Plaintiffs, v. Eric H. HOLDER, Jr., 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.

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Ayman LATIF, Mohamed Sheikh Abdirahm Kariye, Raymond Earl Knaeble IV, Steven William Washburn, 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, Plaintiffs
v.
Eric H. HOLDER, Jr., 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.

No. 3:10–CV–00750–BR.

United States District Court, D. Oregon.

Signed June 24, 2014.

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Steven M. Wilker, Tonkon Torp LLP, Kevin Diaz, American Civil Liberties Union,

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Portland, OR, Hina Shamsi, American Civil Liberties Union, Christopher M. Egleson, Justin H. Bell, Mitchell P. Hurley, Akin Gump Strauss Hauer & Feld LLP, New York, NY, Alexandra F. Smith, Laura Schauer Ives, ACLU Foundation of New Mexico, Albuquerque, NM, Ahilan Arulanantham, Jennifer Pasquarella, ACLU Foundation of Southern California, Los Angeles, CA, Alan L. Schlosser, Julia Harumi Mass, ACLU of Northern California, San Francisco, CA, Reem Salahi, Salahi Law, Santa Monica, CA, for Plaintiffs.

Devin N. Robinson, Stewart Shadduck & Robinson LLC, Portland, OR, Rita M. Siemion, Washington, DC, for Amicus Curiae the Constitution Project.

Eric H. Holder, Jr., United States Attorney General, Amy Elizabeth Powell, United States Department of Justice, Civil Division, Washington, DC, S. Amanda Marshall, United States Attorney, James E. Cox, Jr., Assistant United States Attorney, District of Oregon, Portland, OR, for Defendants.

OPINION AND ORDER

BROWN, District Judge.

This matter comes before the Court on Defendants' Motion (# 85) for Partial Summary Judgment and Plaintiffs' Cross–Motion (# 91) for Partial Summary Judgment. The parties each seek summary judgment on Plaintiffs' Claim One of the Third Amended Complaint (# 83) (that Defendants violated Plaintiffs' right to procedural due process under the Fifth Amendment to the United States Constitution) and Claim Three (that Defendants violated Plaintiffs' rights under the Administrative Procedure Act (APA), 5 U.S.C. § 706 ). In their claims Plaintiffs specifically challenge the adequacy of Defendants' redress procedures for persons on the No–Fly List (sometimes referred to as “the List”). In addition to the parties' briefs, the record includes an Amicus Curiae Brief (# 99) in Support of Plaintiffs' Cross–Motion filed by The Constitution Project.

On June 21, 2013, after the Court first heard oral argument on the parties' Motions, the Court took these issues under advisement. On August 28, 2013, 969 F.Supp.2d 1293 (D.Or.2013), the Court issued an Opinion and Order (# 110) granting in part Plaintiffs' Cross–Motion, denying in part Defendants' Motion, and deferring ruling on the remaining portions of the pending Motions to permit additional development of the factual record and supplemental briefing. In that Opinion and Order the Court concluded Plaintiffs established the first factor under Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), because Plaintiffs had protected liberty interests in their rights to travel internationally by air and rights to be free from false governmental stigmatization that were affected by their inclusion on the No–Fly List. The Court, however, found the record was not sufficiently developed to balance properly Plaintiffs' protected liberty interests on the one hand against the procedural protections on which Defendants rely, the utility of additional safeguards, and the government interests at stake in the remainder of the Mathews analysis. See id.

After the parties filed a Third Joint Statement of Stipulated Facts (# 114) and completed their respective supplemental briefing, the Court heard oral argument on March 17, 2014, and again took the Motions under advisement.

For the reasons that follow,¹ the Court

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GRANTS Plaintiffs' Cross–Motion (# 91)² and DENIES Defendants' Motion (# 85).

PLAINTIFFS' CLAIMS

Plaintiffs are citizens and lawful permanent residents of the United States (including four veterans of the United States Armed Forces) who were not allowed to board flights to or from the United States or over United States airspace. Plaintiffs believe they were denied boarding because they are on the No–Fly List, a government terrorist watch list of individuals who are prohibited from boarding commercial flights that will pass through or over United States airspace. Federal and/or local government officials told some Plaintiffs that they are on the No–Fly List.

Each Plaintiff submitted applications for redress through the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP). Despite Plaintiffs' requests to officials and agencies for explanations as to why they were not permitted to board flights, explanations have not been provided and Plaintiffs do not know whether they will be permitted to fly in the future.

Plaintiffs allege in their Third Amended Complaint (# 83), Claim One, that Defendants have violated Plaintiffs' Fifth Amendment right to procedural due process because Defendants have not given Plaintiffs any post-deprivation notice nor any meaningful opportunity to contest their continued inclusion on the No–Fly List. In Claim Three Plaintiffs assert Defendants' actions have been arbitrary and capricious and constitute “unlawful agency action” in violation of the APA.

PROCEDURAL BACKGROUND

Plaintiffs filed this action on June 30, 2010. On May 3, 2011, 2011 WL 1667471, this Court issued an Order (# 69) granting Defendants' Motion (# 43) to Dismiss for failure to join the Transportation Security Administration (T3A) as an indispensable party and for lack of subject-matter jurisdiction on the ground that the relief Plaintiffs sought could only come from the appellate court in accordance with 49 U.S.C. § 46110(a). Plaintiffs appealed the Court's Order to the Ninth Circuit. See Latif v. Holder, 686 F.3d 1122 (9th Cir.2012).

On July 26, 2012, the Ninth Circuit issued an opinion in which it reversed this Court's decision and held “the district court ... has original jurisdiction over Plaintiffs' claim that the government failed to afford them an adequate opportunity to contest their apparent inclusion on the List.” Id. at 1130. The Court also held “[49 U.S.C.] § 46110 presents no barrier to adding TSA as an indispensable party.” Id. The Ninth Circuit issued its mandate on November 19, 2012, remanding the matter to this Court.

As noted, the parties subsequently filed Motions for Partial Summary Judgment.

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FACTUAL BACKGROUND

The following facts are undisputed unless otherwise noted:

I. The No–Fly List

The Federal Bureau of Investigation (FBI), which administers the Terrorist Screening Center (TSC), develops and maintains the federal government's consolidated Terrorist Screening Database (TSDB or sometimes referred to as “the watch list”). The No–Fly List is a subset of the TSDB.

TSC provides the No–Fly List to TSA, a component of the Department of Homeland Security (DHS), for use in pre-screening airline passengers, TSC receives nominations for inclusion in the TSDB and generally accepts those nominations on a showing of “reasonable suspicion” that the individuals are known or suspected terrorists based on the totality of the information. TSC defines its reasonable-suspicion standard as requiring “articulable facts which, taken together with rational inferences, reasonably warrant 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 or terrorist activities.’ ” Joint Statement of Stipulated Facts (# 84) at 4.

The government also has its own “Watchlisting Guidance” for. internal law-enforcement and intelligence use, and the No–Fly List has its own minimum substantive derogatory criteria. The government does not release these documents.³

II. DHS TRIP Redress Process

DHS TRIP is the mechanism available for individuals to seek redress for any travel-related screening issues experienced at airports or while crossing United States borders; i.e., denial of or delayed airline boarding, denial of or delayed entry into or exit from the United States, or continuous referral for additional (secondary) screening,

A. Administrative Review

Travelers who have faced such difficulties may submit a Traveler Inquiry Form to DHS TRIP online, by email, or by regular mail. The form prompts travelers to describe their complaint, to produce documentation relating to the issue, and to...