Latif v. Holder

• Decision Date: 26 July 2012
• Docket Number: No. 11–35407.,11–35407.
• Citation: 12 Cal. Daily Op. Serv. 8395,2012 Daily Journal D.A.R. 10269,686 F.3d 1122
• Parties: Ayman LATIF; Mohamed Sheikh Abdirahman Kariye; Raymond Earl Knaeble IV; Nagib Ali Ghaleb; Samir Mohamed Ahmed Mohamed; Abdullatif Muthanna; Saleh A. Omar; Faisal Nabin Kashem; Elias Mustafa Mohamed; Abdul Hakeim Thabet Ahmed; Ibraheim Y. Mashal; Salah Ali Ahmed; Amir Meshal; Stephen Durga Persaud; Steven William Washburn, Plaintiffs–Appellants, v. Eric H. HOLDER Jr., Attorney General, in his official capacity as Attorney General of the United States; Robert S. Mueller, III, in his official capacity as Director of the Federal Bureau of Investigation; Timothy J. Healy, in his official capacity as Director of the Terrorist Screening Center, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

686 F.3d 1122

12 Cal. Daily Op. Serv. 8395

2012 Daily Journal D.A.R. 10,269

Ayman LATIF; Mohamed Sheikh Abdirahman Kariye; Raymond Earl Knaeble IV; Nagib Ali Ghaleb; Samir Mohamed Ahmed Mohamed; Abdullatif Muthanna; Saleh A. Omar; Faisal Nabin Kashem; Elias Mustafa Mohamed; Abdul Hakeim Thabet Ahmed; Ibraheim Y. Mashal; Salah Ali Ahmed; Amir Meshal; Stephen Durga Persaud; Steven William Washburn, Plaintiffs–Appellants,

v.Eric H. HOLDER Jr., Attorney General, in his official capacity as Attorney General of the United States; Robert S. Mueller, III, in his official capacity as Director of the Federal Bureau of Investigation; Timothy J. Healy, in his official capacity as Director of the Terrorist Screening Center, Defendants–Appellees.

No. 11–35407.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 11, 2012.

Filed July 26, 2012.

Nusrat J. Choudhury (argued) and Hina Shamsi, American Civil Liberties Union Foundation, New York, NY; Kevin Diaz, ACLU Foundation of Oregon, Inc., Portland, OR; Julia Harumi Mass, ACLU Foundation of Northern California, San Francisco, CA; Jennifer Lee Pasquarella, ACLU Foundation of Southern California, Los Angeles, CA; and Steven Wilker, Tonkon Torp, LLP, Portland, OR, for the plaintiffs-appellants.

James Edward Cox, Jr., Assistant United States Attorney, United States Attorney's Office for the District of Oregon, Portland, OR; and Joshua Paul Waldman (argued), Douglas Neal Letter, and Amy Elizabeth Powell, United States Department of Justice, Washington, DC, for the defendants-appellees.

Appeal from the United States District Court for the District of Oregon, Anna J. Brown, District Judge, Presiding. D.C. No. 3:10–cv–00750–BR.

Before: ALEX KOZINSKI, Chief Judge, A. WALLACE TASHIMA and RICHARD C. TALLMAN, Circuit Judges.

OPINION

TALLMAN, Circuit Judge:

The Terrorist Screening Center (“TSC”), which is administered by the Federal Bureau of Investigation (“FBI”), maintains a list of known and suspected terrorists who are not permitted to fly in United States airspace. Plaintiffs—all United States citizens or legal permanent residents—have good reason to believe that they are on the “No–Fly List” (“List”). They initially submitted grievances through the redress program run by the Transportation Security Administration (“TSA”), but the government has refused to confirm or deny their inclusion on the List, to disclose the bases for their apparent inclusion, or to provide any assurances about future travel.

Rather than continuing to pursue their administrative grievances with TSA, Plaintiffs filed this action in the United States District Court for the District of Oregon against the Director of TSC, the Director of the FBI, and the Attorney General. They demand that the government remove them from the List or provide a more “meaningful” opportunity to contest their apparent inclusion on the List.

The district court dismissed the case, holding that TSA is a necessary party to the litigation because Plaintiffs challenge the adequacy of TSA's grievance procedures, seeFed.R.Civ.P. 19, but that TSA could not feasibly be joined in the district court due to 49 U.S.C. § 46110, which grants federal courts of appeals exclusive jurisdiction to review TSA's final orders.¹ We reverse and remand.

I

A

The Bush administration established TSC in order to consolidate the government's approach to terrorism screening in response to concerns about the lack of intelligence-sharing among federal agencies following the attacks of September 11, 2001. TSC develops and maintains the List. The National Counterterrorism Center and the FBI submit nominations of known and suspected terrorists, and TSC then decides who to include on the List based on classified intelligence.² TSC subsequently provides the List—which contains only sensitive, unclassified identity information, not the underlying classified intelligence information—to TSA, which in turn implements the List at the airport.³

TSC does not accept complaints directly from travelers who believe they have been wrongly included on the List. Instead, pursuant to statutory directive, TSA has established the DHS Traveler Redress Inquiry Program (“DHS TRIP”). See49 U.S.C. § 44903(j)(2)(G)(i) (“[TSA] shall establish a timely and fair process for individuals identified as a threat under [the advanced airline passenger prescreening system] to appeal to [TSA] the determination and correct any erroneous information.”); § 44926(a) (“The Secretary of Homeland Security shall establish a timely and fair process for individuals who believe they have been delayed or prohibited from boarding a commercial aircraft because they were wrongly identified as a threat under the regimes utilized by [TSA]....”).

DHS TRIP is essentially a clearinghouse for traveler grievances. The complainant initiates administrative review by submitting a grievance, see49 C.F.R. § 1560.205(b), which TSA reviews. If the traveler was misidentified (i.e., the traveler is not on the List but has been misidentified as someone who is), then TSA addresses the problem by updating or correcting information in the traveler's record or taking other appropriate action. If the traveler is an exact or near match to someone on the List, TSA forwards the grievance to TSC's redress unit.

Upon receipt, TSC reviews all available information to determine whether the traveler is actually on the List. If the traveler has been misidentified, TSC informs TSA, which then takes corrective action. If the traveler is an exact match, TSC coordinates with the original nominating agency to determine whether the traveler should remain on the List. TSC is “the final arbiter” of whether the traveler stays on the List, and informs TSA of the final determination.

TSA sends a determination letter to the traveler when review is complete. The letter tells the traveler that review of his DHS TRIP grievance is complete, but does not confirm or deny whether the traveler is (or ever was) on the List or provide any assurances about future travel. In some cases, the letter informs the traveler about the availability of an administrative appeal within TSA and/or judicial review in the United States Courts of Appeals under § 46110.

B

Plaintiffs are fifteen United States citizens and lawful permanent residents who allege that they were prevented from boarding domestic and international commercial flights in the United States and overseas due to their apparent inclusion on the List.⁴ They submitted DHS TRIP grievances but, before most received any response, filed this lawsuit challenging their apparent inclusion on the List and claiming that the government's alleged failure to afford them a meaningful opportunity to contest their apparent inclusion violates their Fifth Amendment right to due process, and constitutes unlawful agency action in violation of the Administrative Procedure Act, 5 U.S.C. §§ 702, 706. They seek an injunction directing the government to either remove them from the List or provide “a legal mechanism that affords them notice of the reasons and bases for their placement on the No Fly List and a meaningful opportunity to contest their continued inclusion on the No Fly List.”

After this case was initiated, Plaintiffs each received a DHS TRIP determination letter. Some letters state that “DHS has researched and completed our review of your case,” that “we can neither confirm nor deny any information about you which may be within federal watchlists,” and that “[t]his letter constitutes our final agency decision, which is reviewable by the United States Court of Appeals under 49 U.S.C. § 46110.” The remaining letters state that “it has been determined that no changes or corrections are warranted at this time,” that “you may file a request for administrative appeal with [TSA],” and that “[t]his determination will become final 30 calendar days after you receive this letter unless you file a timely administrative appeal. Final determinations are reviewable by the United States Court of Appeals pursuant to 49 U.S.C. § 46110.” Plaintiffs have not pursued further administrative review by TSA or filed a § 46110 petition in a court of appeals.

Instead, Plaintiffs pursued their claims before the district court, which ultimately dismissed the action. The court read their complaint to raise only procedural claims regarding the sufficiency of the grievance procedures available to contest their apparent inclusion on the List. The court held that TSA is a necessary party to the litigation, but that it could not be joined in light of § 46110. SeeFed.R.Civ.P. 19. Plaintiffs timely appealed.

II

We review a district court's decision regarding joinder for abuse of discretion, but review legal conclusions underlying that decision de novo. Lyon v. Gila River Indian Cmty., 626 F.3d 1059, 1067 (9th Cir.2010). Construing the operative complaint “generously,” Pegram v. Herdrich, 530 U.S. 211, 230 n. 10, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000), Plaintiffs have raised both a substantive challenge to their own apparent inclusion on the List and a procedural challenge to the adequacy of the redress procedures available to challenge their apparent inclusion on the List.

A

The district court has jurisdiction over Plaintiffs' substantive challenge.⁵ “ Section 46110 grants exclusive jurisdiction to the federal courts of appeals to ‘review’ the ‘orders' of a number of agencies,” including TSA, DHS, and the Federal Aviation Administration (“FAA”)—but not TSC or the FBI. Ibrahim v. Dep't of Homeland Security, 538 F.3d 1250, 1254 (9th Cir.2008) (“ Ibrahim I ”) (alterations omitted) (quoting Clark v. Busey, 959 F.2d 808, 811–12 (9th Cir.1992)). Because TSC “actually compiles the list of names ultimately placed” on the List, § 46110 does not strip the district court of federal question jurisdiction over substantive challenges to the inclusion of one's name on the List. Id. at 1255 (internal quotation marks omitted).⁶ Accordingly, we must remand Pl...