Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 1 of 28

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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATfi,E

MICHELLE D. GREEN; JOHN F. SHAW; DAVlD C. PATHI; SAROSH SYED;

cas.~V04 -07682

MOHAMED IBRAHIM; DAVlDNELSON;

11 ALEXANDRA HAY, on behalfuflhcmselves

COMPLAINT-CLASS ACTION

and all oth~rs similarly situated~

12
Plaintiffs,

13

v.

14

TRANSPORTATION SECURITY

15 ADMINISTRATION; DAVID M. STONE;

DEPARTMENT OF HOMELAND

16 SECURITY; TOM RIDGE,

17

Defendants.

IR

PRELIMINARY STATEMENT

19 1. Plaintiffs bring this. lawsuit on bt::halfofthemselves and similarly situated

20

individuals to challenge the TranSpOliation Security Administration's ("TSA'S") administration

21

and management ofthe "No-Fly List," a li.">t circulated to commercial airl111es and security

22 personnd with instructions tu dt":tain and questi(m atlY passel1ger whose name: matches (If is

23

Sl1tti1ar to one on the NO-Fly List.

24

2.

Defendants begun jmp1cmclltillg the Now Fly LiBt in Novembcr 2001 ~ Since then,

25
it ha.~ resulted in hundroos, If not thousandsj of innocent pm;~engcrs being routinely stOPlled, 26
questioJl~d, and searched, Defendants the TSA, the Dcpaltment of Homeland Secllliiy ("DllS'~),

27

COMPLAINT ~~<:LASS ACTION· l

ORIGINAL

AMERICAN CIVIL T.TBEItl'l.ES UNlON
OF WASHINGTON
705 ::;EOOND AVF.NUh, Sl:t'i'li 300
SI'A'I'IU, WASIDNClnN 98104
t~kph<JIL<' (206) ~24-21S4 -fall (206) 614-2190

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 2 of 28

and the head administrators oftl1ese agencies do nut apprise individuals of why they were 2 identified by the No-Fly Li::;t. Individual::; whom the TSA concedes are not ~eeurity threaLs 3 continue to be ident1fied on the NO-Fly List. Passengers have 110 mcaningful opportunity to clear

4 their names and avoid being subje(..ioo Lo these delay!:!, searches, and stigma virtually every time

5 they fly.

6

3.

Plaintiffs in this action an: 1nnocent passengers with no links to terrorist activity.

7 As used in this Complaint, the tenn ''innocent passengers!! refers to individuals who arc

8 identified by the No-Fly List becausc their names arc similar or identical to names on the No-Fly

9 List. These plaintiffs arc innocent of any wrongdoing and pose no threat to aviation !:\ecurity.

10 Nonetheless, they arc sllbject to sHgmatization and repeated interrogations, delays, enhanced

11 searchesl detentions, and/or other travel impediments. Plaintiffs are not selectcd for such 12 treaLment randomly. In,;tcad, innocent pa,;sengcrs are selected for such treatment becaustl they 13 are aS1i-l)c1ated with the No-Fly List and continue to be subjected to such treatment routinely

14 when thoy ily.

15

4.

Plaintiffs ~~ek declaratory and 1njunctive relief on hehalf of themselves and a

16 class of similarly situated individuals under the Due Process Clause ofthe PHlh Amendment and

17 the Search and Seizure Clause 1.1fthe Fourth Amendment. Defendants :-:;h(JUld be required to

18 maintain the No-Fly Ust in an accumte mantler that does not result in stigmatization,

19 intetrogatiolll delay, enhanced scarches, detention, and/or other travel impediments for innocent 20 pa'>scngcrs, Defendants should also be required to give Plaint; ITs and other pussengers the

21 opporLunity to clear their numes so that they an: nO longer subjected to such unconstitutional

22 treatmenL in the filturC.

23

JURISDICTION AND VENUE

24

5.

This court ha~ jllfisdiction pursuant to 2g U.s.c. § 1331 (federal question).

2S Pursuant to 28 U.SX~, §§ 220 I and 2202 (declaratory judgments)j thig Court has jurisdiction to

26 declare the rights of the parties and Lo grant all further telief deemed necessary and proper. The
* 27 Court has authority to award costs and attorneys' fees under 28 U.S.C. 2412, Venue is proper

COMPLAINT CLASS ACnON - 2

AMERICAN CIVll LIBERTIES UNlON
OF WMHINGfON
70:' SH.'()ND AVo:NllE, SUITE 300 SEATTLE, W/<..\lUN(;·I"UN n1[)-1 lelcphO)nc (206) (,24-2181 -fiU( (lJFiJ 624-2190

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 3 of 28

1 in this distrid under 28 U.S.C. § 1391 (c) (venue in actions against United States officers and

2 agencies).

3

PARTIES

4 PI.intiffs

5

6.

Plaintiff Michelle D. Green is a United States citizen and is on active duty as a

6 Master Sergeant in charge of a medkal readiness unit in the United States Air Force. She resides

7 ut the Eidson Air Force Base in Alaska, She has no criminal record and no ties to terrorist

8 organi;t,ations.

9

7,

Plaintiff John F. Shaw is a United States citizen and a retired Presbyterian

[0 mini.ler, He resides ill Sammamish, W.,bington, He has nu criminal record and tlO ties to

II terrorist mganizations.

12

Plaintiff David C, Fathi is a United States citizen and resides in Washington, D.C.

13 He serves as seninr staff counsel ft)r the American Civil Liberties Union's National Prison

14 rwjecL His criminal record consists of two arre~ts for peaceful civil disobedience in 1988 and

15 1991. He has no ties to terrorist organizations.

16

9, P.laintiffSarosh Syed is u United States citizen and resides in Seattle. He is

17 employed as the Sllecial Projects Coordinator with the American Civil Liberties Union of

18 Wa..:;hington. He has no ",'liminal record and no ties to terrorist organizations.

19

10, Plaintiff Moharm::d Jbrahim is a. United Slates citizen and. works as a Project

20 VOl(;e Coordinator for the American Friends Service Committee. He resides in Philadelphia. He

21 has no (,:liminal record and no ties 1<) terrorist organizations.

22

11. Phil1lilTDavid Nelson i.s a United States citizen and resides in Belleville, Hlinois.

23 He is a practicing att0r11ey in his own law finn, Nelson and Nelson, Attorneys ut Law, P.C. lie

24 has no criminal record and no ties to tem)rist organizations.

25

12, Plaintiff Alexandra Hay is a United States citizen and IS currently a third-year

26 studcnt at Middlehury College in Midd1ebllfY, Vermont. Her parents reside in Boalsburg,

27 Pennsylvania. She hus no criminal record and liO lies to terrorist l)rganizatiolls.

COMPLAINT-CL/1.SS AC'l'ION - 3

AMERICAN CIVIL UBERTIES UNION
OF WASHINGTON
705 SECOND AVl'Nlll', SIJrl'I': 300 SFA'I'n..", WASHINC'TO:-O; ~l:I104
t~kplwll" (206) 6~4-2184 ~fax (106) 624-2190

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 4 of 28

Defendants

2

13. Defendant the Tr~nsportation Security Administration ("l'SA") is a sub-agency

3 and part of the Department of Homeland Security ("DHS"). Established in 200 1, it ilj (he sub-

4 agency responsible for maintaining and managing the NO-Fly List.

5

14. Defendant David M. Stone is the Acting Administrator of the TSA~ and~ on

6 infonnation and belief, is respom,ihle tor maintaining and managing the No-rly List. He is sued

7 here in his official capacity.

8

15. Defendanilhe Department of Homcland Security ("DHS") is the agency

9 ultimately respc..msib1c for the conduct of the TSA and, in turn, the No-Fly List.

10

16. Defendant Tom Ridge is th~ Secretary of the DHS. On infom1alion and beliej·: he

11 is resp()nsib1c for the conduct of the TSA and, in tum, the No-Fly List. lie is ljUOO here in his

12 official capacity.

13

FACTUAL ALLEGATIONS

14

17. For several years prior to the terrorist attacks of September 11, 20011 the federal

15 govcrrunent issuoo directives identifying persons who were decmed to pc..)se a threat to civil

16 aviation. Wheo the Transportation Security Administration was created in 2001, it assumed 17 responsibility for compiling and administering thesc directives. Today, Defendant~ the DI-lS, tM Tom Ridge, the TSA, and David M. Stone adrnini~ter and maintain systems of records

19 c()mprising at least two watch lists ofindiv-iduals perceived to he threats to aviation security: 20 (1) a "no-Ily" list and (2) a \\se1ectec" list. On intim11ation and beliet~ these lists contain

21 hundreds ifnot thousands of names. The ''no-fly''liljt contains names ofpt':nplc whom air
or 22 carriers are prohihited from transporting. TIlC "selectee" list contains names passengers who

23 mU11t go through additional security screening prior to boarding. This Complaint Uij~ the term

24 "NO-Fly List" to refer to both the "no-t1y'~ list and the "seleo;..iee" list.

25

IR. The No-Fly Li8t has been the subject of -intense media scrutiny. Ncws artide~

26 report that inm.l(;~·11t individuals repeatedly are stopped, delayed, detained, questioned, and

27 ~e~1.rchcd as a result ofthe No-Fly List. Yet, the TSA dcni.ed its existence until November 2002.

CQMPLAIN'j:'-CLASS ACTION· 4

AMERICAN (]VJL LIBERTIES UNION OF WASHINGtON
7O~ SIi( l)i'\]) AvfNlll, SUITE 300
SEATTTI', WN;HI:-''(;'lnN 9&IQIl
:tcJ~ph~ (lOb) 621·2184- ~t:\X (2Q(,) (>24-2190

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 5 of 28

1 In December 2002, the ACLlJ of Northem California, Teprescnting two anti-war protesters who

2 were stopped and prevented from boarding their flight due to the No-Fly List, filed a request for
3 infomlation under the Freedom ofIntonnation Act C"F01A"). Despite this request and a
4 sub~equent lawsuit filed under FOIA, as well as thc intense public interest in the No-Fly List,

S Defendants refuse to disclose important information regarding the No-Fly List, although
6 Defendants did disclose some inlhrmation. The infonnation Defendants disclosed fails to 7 answer basic questio11s such as the criteria fOT placing names on or removi[lg names from the No-

S Fly List, procedures lor amending jnformation on the NO-Fly List, or rules for maintaining or

9 managing the No~Fly List. Derendants continue to implement the No-Fly List to stop,

'10 interrogatej dctain, and search ilmocent passengers.

11

19. Bccause Detendants have refused to provide any information regarding the

12 creation, maintenance, and implementation of the NO-Fly List, Dcfendants muld be using race,

13 teligion, ethnicity, national origin, or the exercise of First Almmdmcnt protected rights as iaetors

14 in the No-Fly List.

15

20. The No-Fly List includes individuals' names, dates of birth, nationalities, passport

16 numbers, and other identifying infomlation, It is not maintained with sufficient '1-CCutacy,

17 rel~vance, timeliness, or completeness ttl ensure that innocent passengers arc not illt:orrcetiy and

18 unfairly stoppcd, intem)gaied~ detained, searched, or subjected to other travel impeditnents.

19

21. On inronnation ami beliefj DcfendDnts periodically disseminate updated vcrsions

20 of the No-Ply List as attachments to security directives and emergency ameudmcnts to

21 commercial airlines in the Uliited States. The 15 domestic airlines employ nearly half a. ll.li11iott

22 individuuh>, ill1d, on information and belief, a substantial percelltuge of these individuals have

23 access to the No-Fly List On further inronnatioll and belief) these se>.:unly directives and the 24 No-Fly List are also disseminated tl.) customs and immigration agents, airport security personnel, 25 and law enforcement agencit':~j and informati011 from the No-Fly List is fed into other security

26 databases such as thc Interagency Border Inspection System ("IBIS") used by the U.S. Customs
27 Service, Immigration and Naturalization Service, Federal Bureau of Investigation ("F131"),

COMPLAINT-CLASS ACTION - 5

AMJ:::1UCAN CIVIl. LIBERTIES UNION
OF WASHINGfON
705 SE(l.:,)ND Avt-:NUf. SLUTS JOO SEATILE, WfI,SJJJ.\c'iJ'·.lN ~810·j
(eiephot1e (20(,) 624-1164 -h1< (2~) 1,24-21~O

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 6 of 28

Interpol, Drug Enforcemcnt Administratit)1"1 ("DEAn), Bureau of Alcohol, Tobacco, Firearms and

2 Explosivcs ("ATF"), the Internal Revenue Service ("TRS"), the Coast Guard, the Fedcral 3 Aviation Administration ("FAA'l), and the Secrct Service. Upon further infonnation and be1ict~

4 Defendants instruct recipients of the No-Fly I.ist to detain and interrogate any individual who 5 checks in IllT OT deplanes from a flight whose name is similar or identical to a name dud appears

6 on the No-Fly List. Dettmdants do not make reasonable efforts to ensure sufficient accllf8cy, 7 relevance, timeliness, or completeness to guarantee fairness to innocent passengers. who arc

8 flaggoo by the No-Ply List.

9

22. On infonnation and beliet~ Defendants require airlines to install computer

10 programs to match the names of passengers to the No-Fly List. When a passenger with Ii name

'II similar or identical to a name on the No-Fly List attempts to eheck in, the airline's c(1mputcr

12 prevents further processing of the passenger's boarding pass. The computer program alerts

13 airline personnel to contact ~ecllrity and/or law enforcement agents.

14

23. Innocent passenger~ at this point arc sometimes illti..1rmoo, in full view of other

15 passengers waiting in line, that their names arc on a federal security list. This results in

16 signiticftl"lt embarrassment and hwniliati(1n to the passenger, as fellow passengers and the

17 traveling public subsequently regard the innocent passenger with suspicion or teaT. In many

18 instances, al"l aiTlil"le agent takes the passenger's identilication documents to a back room. The

19 passcnger is not free to leave, a.~ the agent has his or her driver's liCe-molC or passpOlt. After a

20 delay of up h) thrty~ftve minutes, the airline agent refums:.

21

24. In other instancesl airlit"le agents summon law entoTCtlment or secmity peIl'onnel

22 to question the innocent passenger. The passenger typically is not free to leave and is prevented

23 Ih)m proceeding on his or her flight until the interrogation is completed. Often, this 24 interrogation occurs within full view of other passengers. On some ou.::asions, unlfonncd 25 security personnel or law enforcement threaten the innocent passenger with arrest a.nd/or e~clJtt

26 thc passenger through the !lirport to a separate interrogation area, causing signilkant

27 emharrassment and humiliation to the passenger.

COMPLAINT-CLASS ACnON - 6

AMERICAN CIVIL I.IBERTIES UNiON
OF WASHINGTON
70S SECOND AVF.N! IIi, Su Il·::JC<J
::'EA'I'ILE, W'\s[ll\'¥,:'l:(lN 9~104 ~d':plIr>"" (2(]~) ~24-2j84- _·fa.. (2Ob) G2~ -119D

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 7 of 28

1

25. The interrogation of ilU10cent passengers who arc stopped as a result ofllie No-

2 Fly List has taken up to three hours. During these interrogations, the innocent passenger's body

3 and luggage aTC usually s~<lrchcd. Officers thoroughly review all of the documents in the

4 passenger's possession, sometimes making copit$ ofthcm, and hand-search the passenger's

5 luggage. Unifonned officers question the innocent passenger about residel.1<;t;':; travel plans,

6 occupation, and other pcrsoll!ll inthnnatioll. The otl'tcers frequently employ a hostile and

7 nc.:cLlsatory tone and treat the passenger as a suspected terrorist.

8

Eventually, when the innocent passenger succeeds in persuading the airline aget\t

9 and/or security personnel and/or law enforcement of his or her identity, a boarding pass is issued.

'10 These boarding passes, however, usually are ~tamped with a mark to indicate that the passenger

11 must be subjected to enhanced s("-recning procedures, also referred tn as "secondaTY screening."

12 When an innocent No-Fly List passenger approaches the security line l('1r ordinary passengers, he

13 or she is directed to a separate line t(n rut enhanced seaTch. This search includes a body search,

14 usually involving a wand and/or physical pat-down, and a htmd-search of allllfthe items in the

15 passenger's luggage. This scarch is signifi.cantly more intrusive Ihan the searches to which other

16 individuals are subject These innocent passengers are not seledcd foI' these enhanced searches

17 randun"lly. Rather, they are selected because they arc flagged in connection with the No-Fly List.

1M

27. ltlllocent passengers subjected to this trcatment are stigmatizcd and subject to

19 interrogations, ddays, enhanced searches, detentions, and/or other travel impediments when they

20 fly. Thtly ilre treatcd differently from other passengers whose names are not associated with the

2l NO-lily List. Tn addition, tllese passengers generally are not pcnnitted to cheek in for flights

22 using the internet OT c()1nputcrizcd e~ticket kin::=;ks like other passengers. Sometimes, a<; a result

23 of delays; innoccnt passengtlTS miss their flights and have; on occasion, even been ftlrc;ed to pay

24 for a substitute flight out of their own pockets.

25

2R. Aside from the ditTicultics in obtaining boarding passes, imioccnt passengeTS on

26 the No-Fly List abo suiTer signiflcant embarra:::ls.mcnt, delays, enhanced searches, detentions,

27 amllor other travel impediments in proceeding through customs and immigration. They aTe

COMPLAlNT-CLASS ACTION - 7

AMRRrCAN CIVIL UBEllTrES UNION OF WASHlNGI'ON
70.) Sh(l)NDA"V"IM;E, Stnw..\00
$1("'·1·1"1.1>.. Wk.'HINGIDN 98104 td.:plv..m!: (2C1S) 624·211)4 ·-b:l: (20(,) (i21-21~

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 8 of 28

1 pulled out of the immigration line by unifonned officers when they enter or leave the United 2 States. They are sometimes taken to a separate room for interrogation, or they are questioned in

3 tldl view of other passengers. These iZUlOcent passengers also are SUbjected to enhanced

4 s("Teening multiple times within a single trip, indudilig hand-searches through the1f luggage.

5

29. There i::; nO uniform policy for irulOcent passengers to learn why they have been

6 singled out because of the NO-Fly List. Somc innocent passcngers subjected to this stigma and

7 these intem.lgations, delays, enhanced searches, detentions, amVor other travel impediments UTe 8 never apprised that their delays afe connected to the NO-Fly List. Some are told that they were

9 selected for this treatment randomly, even when they are selected. virtually every time they fly.

10

30. For innocent passengers who are told that they have been identified in connection

II with the No-Fly List, Defendants have not instituted. u unifonn policy thr informing them of

12 procedufes available to contcs.t their placement on the No-Fly List. The TSA docs not publici:£c

13 its ombudsman process at airports or elsewhere. As a. result, some innocent passengers wl:U)

14 inquire a'> to why they were placed on the No-Fly List are told that there is no avallable recourse

15 and that they will IXmtinuc to be flagged every time they fly. Other imliv1duals are told that the

16 only recourse available is to the contact the FBI or to retain an attomey. Some individuals are

17 told to contact the TSA, but ar~ not given any contact infonnation,

lR

31. Many innocent passengers do not report these incidents to thc TSA or the FBI

19 because they fear that providing more intbnnation to the: government will simply aggravate their

20 ability to Ily in the future without stigma~ interrugutionsj dclays~ enhanced searches, detentions, 21 and/or other travel impW1mcnts. Some ofthe individuals who do report these inddcnts to the
22 .... Br ohtain no rclief.

23

32. Innocent passeJl.g~ who pursue the TSA ombudsman process obtain no

24 meaningful relief A fcw passengers learn about the proces~ when they receiv~ a letter from an

25 airline or the TS!\. instructing them to submit t.o the TSA a written comph1.int describing in detail 26 the ~vents that occurred. The TSA states that it will respond to such (:t)mplaints only if 27 "circumstafl(.:e~ warrant it." There is nO indication ofwhut situations warrant a resprmsc. Upon

COMPJ,AINT-·-CLASS ACTION - 8

AMERICAN CIVIL UBERllES UNION
OF WASllINGfON
705 S!;,.(.ONC.AVENl1"', S[n'll' .100 S['....."I'IIJ.:, WASJ-JINl..JDN ':IlllC4
tl:1I:ph'-'rl~ (206) &24-21M ·-fax (lOG) 624·2")'0

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 9 of 28

intonnation and beliet: many innocent passengers who foHow this procedure receive no response

2 and continue to be flagged by the No-Fly List.

3

33. Tn instances in which the TSA d~s a compluint sufficiently meritorious, 1t

4 sends lhc individual a Passenger Identity Verification FornI ("PIVF")j requesting extensive

5 personal information including address, social8ecurity number, date of birth, and certified copies

6 of three fanns of identitication. In some ca'=:esl innocent pa~scngers who complete the PIVF

7 receive no n':sponse from tlltl TSA.

8

34. Tn olher cases, the TSA processes the PIYF and then issues a letter that the

9 pU8~erlgcr can show to airline personnel in an effort to persuade them that he or !She has been

10 cleared by the TSA. Typically, 1he letter sent to the passenger contains the following

11 quali fication: "While TSA cannot ensure that your travel will be delay free. these procedures

12 should streamline Y(.lUr check-in process. Please note that you may still experience enhanced 13 screenillg at security screening locations.~~ Many individuals who ha.ve completed the TSA ':;

'14 identity verification process luwe obtained no meaningful relief and continue to he subject to

15 stigma, interrogation, delaYl enhanced search, detention, and/or other travel impediments when

16 they tly, Upon infOJmation and belief, the TSA has nDt infhmled the airlines and security

'7 pcrso1Ulei of the PIVF process in any systematic manner. Upon further information and belief,

19 the PIVf proceSg docs not expunge the innocent passenger's name ltom the No-Fly List.

19

Pl.inti iT Michelle D. Green

21l

35. Master Sergeant Michelle D. Green is a Non·Commis~ioncd Officer in eharge of

21 a medical rcadines!S unit in the United States Air Force. She is a United States citizen and regides

22 on Eielson Air Force Base in Alaska. She is the mother of three children, one recently adopted.

23 MSgt. Green has no criminal record and no ties to terrorist organizations.

24

36. On military ord.ers, MSgt, Green was scheduled to fly from Fairbanks, AK, 10

25 Seattle, WA, on January 2, 2004. When she attempted to check in tl)r her flight in Fairbanks, the

26 tickel agent infonned her that there was a computer problem. The agent asked MSgt. Green ti)T

27 her date ofbirth and middle na1i1e. The agent tl..lok a copy ofMSgt. Green's orders and went to a

COMPI.AI N"l ~CLASS ACTION n <)

AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON
70S S£OJNDA'vl'NI ;1'.• Sill'll'. 300 SF ",'['1'1.1::, WI\SlIINCF.ThI ',Il!IQ4 tdeplwll~ (206) 624·21 fM -fax (lOG) &24·71';10

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 10 of 28

'I back room. MSgt. Green was not free to leave, as the agent had her orders. Only after

2 approximately forty-five minutes was the agent able to process a boarding pass.

3

37. The following day, MSgt. Green was scheduled to ny from Seattle, WA, to

4 Honolulu, HI. When she tried to cheek in at the ticket counter, the age-n.t asked whether she had

5 encountered any prohlems the previous day. MSb.-t. Green replied that the agent from the day

6 before had run into computer problems. The agent begW11aughing and, in full vi~w of other

7 passengers waiting in linej explained that the reason tor her delay was not a computer problem,
8 but rather because she was lm a NO-Fly List. He explained that she would likely encounter

9 problems every time she flies.

10

38. The agent then callr;;:d corporate secutily in Chicago, who explained that there was

t 1 a person with the same first name, last name and date of hirth, but dH'I'erent middle flame, 011 the

12 No-Fly List. After approximately forty-tive mi[lutes, the agent was able to proeess MSgt.

'13 Green'N hoarding pDSS. During this time, MSgt. Green did not believe she was tree to leave and

14 was unable to proceed to her Ilight without her boarding pass.

15

39. MSgt. Green ui:lkcd whether there was anything she could do to avoid these

16 problems in the future; and the airline agent told her that there was nothing she could do except

'17 obtain u frequent flyer number with the airline so that they might be able to identify her.

18

40. Aller these delay" in obtaining her hoarding passl;':s~ MSgt. Green was also

19 subjected to enhanced screening procedures. Uniformed security personnel sean.:hed her luggage

20 by hand and used a wand over her body. MSgt. Green was also subjected to a physical pat-

21 down. MSgl. C'rreen did not. believe she was free to leave or proceed to her tlight without

22 suhjecting herself to these additional searches.

23

41. On January 10,2004, MSgt. Green was scheduled to retuDl Hum Honolulu to

24 Fairbanks, again via Seattle. When she checked in lor her flight i11 Honolulu, the Licket agent

25 waS. unable to print her hoarding pass ti..lT her eonnectjng mght from Seattle to Fairbanh. Thus,

26 when she arrived in Seattle, she was required to check in again. The ticket agent in Seattle was

27 unable tu print her boarding pass; andj to MSgt. Crrecn's embarrassment, anllounced very loudly

COMPLAINT-CLASS ACTION" 10

AMElUCAN CIVIL UBERTIES UNION OF WASHINGTON
70, Sl'{t)NL> AVINtIF" $~nF JOO Sr,ABu" WA.'lHrNGTC.Th,· 9R 104
tdcphorn: (2Q6) f)).4-211!4 -fa:.: (206) ~}4-21'llO

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 11 of 28

I in frOflt of the other passengers and MSgt. Green's supervisor. Capt. Michael Berry, that MSgt. 2 Green needed to be c1~ared from the "list.l ' MSgt. Green waited with Capt. Berry ti.)r fiHeen 3 minutes for another agent to anivc and clear her. The agent informed MSgt. Grecn that he 4 would neoo to accompany her downstairs to clear her llal1le. The flight was alTeady boarding
5 passengers at tllis point. When MS~rt. Green alerted the agent to this fact) he treated her with

6 disdain aud cu1led security. After an additional fifteen minutes and aftcr the plane had hoarded

7 its last passengers, MSgt. Green was finally pemlitted to hoard her flight, aHhough she was not

8 s~aled in her assigned window seat.

9

42. As a result ofDeft;mdants' actions, MSgt. GTeen has been stigmatized as a

10 suspected terrorist. Shc is also subjel,.1 to repeated interrogations, delays, enhanced ~earches,

11 detentionsj andlor other travel impediments~ and prevented from obtaining a boarding pass

12 through the internet or computerized e-ticket kiosks likc other passengt;':Ts.

13

PlaintitHohn F, Shaw

14

43. The R~v. Dr. JOllll F. Shaw is a renTed mcmber of the c1t;':Tgy with a Ph.D. in

15 pastoral counseling. Dr. Shaw was ordained by the Presbyterian Church in 1954. His most

16 rcccnt position was as a chaplain for Overlake Hospital! and he retired in 1991. Dr. Shaw resides

t 7 with his wifc in Sammamish, a suhurb l)f'Seattlc, and they have live adult children, Ht;': ha..<';.l'Io

18 t:Timinal record and no ties to terroTisl organizations.

19

44. Dr. Shaw's first encouliter with the NO-Fly List occurred in mid-2002, when he

20 flew with his wile tT()m Seattle to Medford, OR. When thcy attempted to check -it} for their flight

21 at the curbside with the skycap, the agent typed their names into the computer and then said, 'Til

22 be rigbt back." TIle agent left with the documents that the Shaws had given him and retumcd,

23 requesting that the Shaws accotnl,any him to the ticket counter.

24

45. At the ticket counter, the airline agcnt asked for DT, Shaw's -identification and

25 took his driver's lievnse and ticket into a back roOI11. AfttlT l:lome time had passed, the agent

26 retwned, scowling. During this time, Or. Shuw did not reel frce to leave. Tile agent lhen typed

27 some information into the computer and generated the Shaws' buarding passes and iuggagt;'! t~g~.

COMPLAINT-CLASS ACTTON - 11

AMERICAN CIVIL LIBER'rIF.S UNION
OFWASfDNG'rON
705 $:ECONT) AWNlJI'. SLlTI': _100 ~EATILE., W"MlIN(;-lllN 9Hl04
tckph.anc: (206) (,24-2181 -(ax (206) 624-Z19C

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 12 of 28

When Dr. Shaw inquired af; to what the problem was, he received no answer. When he asked
2 again, the airline agent replied, in full view of the other passengers waiting in line, ((Your name

3 is 011 the FBI list." The agent provided no further explanation or apology. Dr. Shaw was 4 alamled. that h~ was being targeted hy thc FBI, as he has no criminal record and has never done

5 anything to make him a suspect.

6

46. On February 13, 2004, Dr. Shaw wa..;; scheduled to fly with his wife again, this

7 time on a vacation to South Africa. They provided their Pit.<t8Ports to the ticket agent at the

8 airline counter, but the agent had difficulty pmcessing their boarding passes. The agent asked

9 for the Shaws' passports a :'3econd time and to(.lk the documents into a baek room. The Shaws

10 were not free to leave because the agent had their passports.

11

47. After twenty 11iinutes~ the agent returned with the pa"1sports, without offering any

12 apolo~1)' or explanation. The agent continued to have problems processjng the boarding passes

13 and requested the a~sistance of anoth~ ticket agent. Eyentually~ Dr. Shaw and his wife received

14 their boarding passes, which were stamped for special screening.

15

48. Dr. Shaw and his wife proceeded through security. They were directed to a

16 separate line tllr ~hanccd screening. Three uniformed TSA agents proceeded to usc a wand

17 over the Shaws' bodies, physically patted them down, had them remove their shoes, and hand-

18 searched their belongings. The agents removed contents from the Shaws' carry-on luggage with 19 little regard for how the C(lntetlts were placed back in the bags. After this search, the Shaws werc

20 permitted to board thcir flight, with only len minutes remaining before scheduled takeoff.

21

49. Upon retuming from his trip, on Man,;h 4~ 2004, Dr. Shaw I;(mtactoo the Seattle

22 FBI offic!;': hl complain. The duty otficer infonncd him that the FBI does not maintain the No-

23 Fly List and advised him to contaet his Congressional representative and the TSA.

24

50. On March] 6,2004, Dr. Shaw spoke w1th a representative n-t)tn the TSA's

25 ombudsman office, Aller Dr. Shaw described hi~ situation, the age"lll faxed him a letter

26 requesting that he complete the attached Passenger identity V~ Geation Form. Thi11 letter states:

27 "While TSA cannot ensure that this procedure will relieve all delays, we hope it will facilitate

COMPLAINT---CI,ASS ACTlON-12

AMERICAN CIViL LIBERTIES UNION
OF WASHINGTON
70S 3EO):,\"O AVFN!n', Sin I': 300 SfATIlE, WASIR:\KTlllN 9!l104 I~kphonc (10&) ~24-:1:184 -fax (20i:» 62+21,;)0

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 13 of 28

1 more efficient check~in procedures for you. Additionally, l'SA has issued guidance to' the

2 airlines to clarify further the No Fly List clearance protocol." Dr. Shaw completed the fOmi and

3 submitted the requirt:d certified copies of three pieces of identification on March 18,2004.

4

51. Dr. Shawls son, named Jolm F. Shaw, Jr., has encountered similar experiences

5 when attempting to travel by plane on at least five occasions.

6

52. As a Tesult of Defendunts' actions, Dr, Shaw has been stigmatized as a suspected

7 terrorist. He is also subject to repeated intcrrogatiom, delays, enhanced searches, detentions,

8 and/or other travel impediments. Dr. Shaw generally cannot eheck: in to flights using the internet

9 or computerized e-ticket ki(Jsks like other passengers.

to

PlainliffDavid C. Fathi

11

53. Mr, David C. Fathi is a senior staff counsel for the American Civil Uberties

12 Union'~ National Prison Project. ?vir. Fathi is of Middlc Eastern descent and "Fathi" is an

13 lr!lnian ~urnamc. He has no ties to terrorist organizations, and his criminall'ccord consists of two

14 arrests for peaceful civil disobedience.

15

54. Mr. Fathi's first encounter with the No-Fly List was on July 21, 2003, when he

l6 was ~chedu1cd to fly from Wa..;;hington, DC, to Milwaukee, WI. When Mr. Fathi arrived at the

17 ticket counter tl..l check in, the airline agent tyPed in his name and infonned him that he could not

18 process the boarding pass because MT. Fathi's name appeared on a security list. In full view I..lf

19 the other passengers waiting in line, a supervi!;or came out and e,ltpiaincci that Mr. Fathi':; name

20 is similar to one on a list provided hy the government aJ."Id that she was not authorized to check

2 t him in. Mr. Fathi teJt stigmatized and regarded with suspicion by his fellow p(.\.Ssengers and the

22 traveling public. The supervisor explained that the airlines have nothing to do with this processl

23 but that they 1.l.H! directed by the TSA to enforce the TSA 's procedures for handling passcngers

24 01"1 the list.

25

55.

Thc supervisor compared Mr. Fathfls driver's liccnse with a documcnt containing

26 the words "No-Fly List" at the top. She the:o took the driver's license to a baek room. Mr, Fathi

27 was not free to leave as the supervisor had hls driver's license. As Mr. Fathi waited, he became

COMPLAINT·",·cr.ASS AcnON - 1)

AMERICAN OVIL LIBERIIES UNION
OF WASHlN(;rON
705 $FH1Nll Av~::..uJ::. S'lM 300 3E.ATTl.F., WASl-IING'IO.', ')810~ tcl~phon~ (206) &24·2'1 H -1'.»: (ZOO) 624-2190

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 14 of 28

1 concerned about missing his flight and twice requested to speak with a supervisor. In response

2 to lhis request, the agent threatened to call airport security. After approximately thirty-five 3 minutes, another ul1ifonned supervisor appeared with Mr. Fathi's boarding pass. TIlls boarding 4 pass was stamped with an "*S*". In full view of the other pa'l.sengers wmting iuline, tills 5 supervisor stated that although Mr. Fatbi was on a government security list, hi::; name did not

6 appear un the No-Fly List.

7

56. As Mr. Fathi pmceedcd through security, security personnel directed him to a

8 special line fhr secondary screening. explaining that the H*S*" on his boarding pass required

9 Mr. Fathi to be subjected to enhanced scrutiny. Mr. Fathi al).ked what the seaTch would entail,

10 and the TSA emplnyee at the security S(,.Teening area responded, "Arc you refusing secondary

11 screening? Because if you are; we'll let the police handle It/; and gestured to a police otl'iccr

12 who was nearby. Ba.'led on this remark, Mr. Fathi did not feel free to refuse con8ent to the 13 search. A uniformed agent then conducted the ~earch, cotlSisting of u body search using a wand,

14 a phySical pat-down of Mr. Fulhi's body, a hand-search through Mr. Fathi's luggage, and a

15 review of all of the books and documents Mr. Fathi had in his possession, including the contents

16 of his legal ±old<mj which contained privileged ellent information and aUonlcy work product.

17

57. A TSA supervi~or then requested Me. Pathi's driver's license, copied information

18 such a::; his home address, and then Tequested a home telephone number. When Mr. Fathi

19 declined tt.l give his home phone number, a police officer was summoned. The 'J'SA supervisor

20 did not repeat his request fol' Mr. Fathi's home phone number. Mr. Fathi was extremely

21 distraught and embarrassed by this exchange. After this additil..mal delay, Mr. Futhi was

22 permitted to board his t1ight at 11 :30 a.m" over one hour after he arrived at the airport, and just 2~ in time for takeoff.

24

58. On Friday. July 25,2003, Mr. Fathi was scheduled to retUnl home from

25 Milwaukee. He amved at the airport at appru~lmate1y 1: 15 p.m., checked inj and received a

26 boarding pass marked with an "*8*." When Mr. Fathi iIlquircd as to the me1.lt11ng ofthjs mark,

27 the ticket agent responded that it indicated that Mr. Fathi h!ld bel::n selected for secondary

COMPLAINl"-CLASS ACTION - 14

AMERICAN CIVIL LIBF.RTlES UNION
OF WASHINGTON
70~ SF(UNTl AVI'NLb,SUI'I'I:, 3(10 SEATI1.F, WA.~rllN(;·ION ?~l(}J
tdc:phOJlI: (206) 621-2184 ~t~lI" (lD~) 624·1190

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 15 of 28

1 screenmg. Mr. Fathi usked to speak with a supervisor to explain why his boarding puss had been

2 marked with the "*S*," and the supervisor suggested it was random. The supervisor denied that

3 tvlr. Fathi'::=; name was on a NO-Fly List. Mr. Fathl asked to speak with Wiother supervisor.

4 When the supervisor did not appear aftcr twenty-five minutes, Mr. Fathi proceeded to his gate so

5 that he would not mi~s his 'flight.

6

59. Mr. Fathi approached the security screening area at approximately 1:45 p.m.

7 When the sei,;urity agents saw the "*S*" 011 his boarding pass, they directed Mr. Pathi to a

8 separate screening line. Mr. Fathi asked to speak to a supervi:sor, and waited. fiJr ten minutes

9 while the supervisor arrived. The :-;upervisor was unahle to provide any additional inthlTIlation or

to explanation why Mr. Fathi had been singled out for the enhanced sereen1J1g process. Mr. Fathi

11 was thcn subjected to the enhanced sCH¢ening process, involVing a wand waved over his body. a

12 phY8icat pat-down, and a hU11d-scareh through his luggage.

13

60. Upon completing the enhanced screening, the agents pennitted Mr. l,'athi to

14 procetld to the gate, As Mr. Fathi approache;-:d the gatc~ however, an airline security l'nanager and

15 another airline agent stopped Mr. Fathi and told hilil, in full view of all of the other passengers

16 standing nearby, "you're on the no-fly list. I don't know why it wum't picked up whel''1. you

17 checked in," The security age.nt added that they needed to "take care of it with the Sheriff's

18 oftil.:e."

19

61. Three or four unifolmeJ and anned Milwaukee County SheritI's Deputie8 wete

20 standing nearby. The security manager handed a small piece nfpaper to one oCthcsc Deputies.

21 Mr. Fathi noticed that the following infonnation appeared on thepiccc of paper: "David Fathi,"

22 "residence: OK," and "DOB ]-7-60." Mr. Fathi has never resided in the United Kingdo.m, and

23 his birth date is DeCe01bf;lT 21, 1962. The security manager refused to explain why Mr. Fathi was

24 on thl;": No-Fly List, and refused to answer any questions. Instead, he handed Mr. Fathi a piece of

25 paper with contad il''J.f(Jrmation for the TSA Ombudsman,

26

62. An rumed and unifonncd Sherifr8 Deputy then escorte;-:d Mr. Pathi, in fUll view of

27 al1 of the other passengers, Ir(l111 the screening area to the Sheriff's office at the airport. A

COMPLAIN l:........(.'LASS ACTION· 15

.A.MElllCAN CIVIL UBERTIES UNION
01' WASHINGl'ON
705 SEffiND AVFNL;I'. SUJ'J'J, 300
S£ATIl.E. WM1T1NC;'I()N 98104
lekl'hollc (206) ('24-21B1 - faJ!.: (106) 1>24-1190

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 16 of 28

second officer infonned Mr. Fathi that they would need to obtain clearance from the FBI before

2 they could pennit Mr. Fathi to board his flight. They required. Mr. Fathi to tum over his driver's

3 license, board1ng pass, and social security number. A TSA officer then entered the office

4 requesting Mr. Fathi's driver~s license and boarding pass to write ~Ji incident report.

5

63. Attt:f some dela.y, the Sheriff's Deputies ohtaincd clearance from the FB', and an

6 anne<! and uni formed Sheriffs Deputy escorted Mr. Fathi back to the security checkpoint, again

7 in full view of the other passengers. Mr. Pathi was then subjlXted to the enhanced screening

8 procedures a second time. The Deputy then escorted Mr. Fathi to his gate. Mr. Fathi was

9 permitted to hoard his flight at appmximately 3 :20 p.m. At no time: during the intervening two

10 hours did Mr. Fathi fcel fi.'ee to leave and proceed on his /light without !$uhmitting to tbis process.

11

64. On August 14,2003, Mr. Fatbi C(mtactcd the oflice of the ombudSl"nan at the

12 TSA. When he received no respon::;t:, he left a second message on August 18, 2003. A TSA

13 t:ntployce returned his call on September 3, 2003. Mr. Fathi relayed the two incidents to the

14 employee. On the next day, Emest A. Carnernn from the Offic~ ()fthc Ombudsman callcd him.

15 Mr. Fathi again described his encounters with the NO-Fly List, and Mr. Cameron requested timt

] (') Mr. Fathi submit a written complaint to him. Mr. Cameron explained that upon receipt ofthe

17 written complaint, he would send forms for Mr. Fathi to complete. Mr. Cameron explained that

18 under agency -policy, it was mal'tdatory for .Mr. Fathi to first submit a written complaint before

19 obtaining the forms.

20

65. Aller this conversation, Mr. Fathi received a Pas:::lenger Identity Verification Fonn

21 ("PIVF") <l-nd complcted it on Ol.;tober 2; 2003, providing hi,'; personal inii..mnation and certified

22 copies of three fonns l)tidentification as required by the instructions on the PIVF. On

23 Odohcr 17, 2003, in a It;1teT signed by Ernest A. Cameron, the TSA ~ent a Icttcr to Mr. Fathi

24 stating, "Bas.ed on the infonnation you provided and l)llr subsequent investigation, the

25 Transportation Security Administration (TSA) has verified your identity. Accordingly, we have

26 provided sufficient personal information tn the airlines to assist in lssu1ng your boarding pass

27 more efficiently."

COMPLAfNT-CLASS ACTION - 16

AMERICAN CIViL LIBERTIES UNiON
01; WASHINGTON
70S SEO)ND AvrNtJl'.,SlJrl'l·: 300 ShA'l~n.E. WJ\S,!I'\",:H1N ~Hl04
wkJ.'hQ~~ (1Qh.) t,24-2l84 -fax (206) 614-1190

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 17 of 28

66. Notwith~tanding these assurances, Mr. Fathi continues to be stigmatized and

2 subjed to repeated interrogations, delays, enhanced searches, detentions, andlor other travel
3 impediments due to the No-Fly List On November 24, 2003, Mr. Fathi was scheduled to fly
4 from Washington, DC, to Denver, CO. He attempted to utilize the airhne's web check-in

5 procedures, but received a message stating that he would be required to check in at the airport.

6 He then arrived at the airport and attempted to check in using the airline's e-ticket kiosk, but

7 received a message that he would need to check in with an agent.

R

67. After waiting in hne to check in, Mr. Fathi provided the agent with his name,

9 When she typed it into the computer, an alert appeared on the screen and !)he ealled a supervisor.

l O I n fi.dl view of the other passengers walting in line, the supervisor arrived and infbtrned Mr, Fathi

11 that his name W3!) On a security list. The supervisor explained that the reason might be because 12 his name is similar to someone sought by the govcnuncnt. The supervisor then called corporate
13 security and plinted out a boarding pass. .Mr, Fathi wu:-; embarrassed and felt stigmatized for

14 being connected with the No-Fly List.

15

6H. The next day, on Novelnber 25~ 2003, Mr. Fathi was !)cheduled to fly from

'16 Denver to Calgary, Once again, he tried to use the self-serve e-ticket kit):-;k to check in~ but to no

17 avail. H~ waHed 1n line to see an agent, who was unsuccessful in checking in Me. Fathi. The

18 agent then called a Ground Security Co()rdinator~ who explained thut Mr. Falhi-s last Ilame

19 matched the last name of someone 80ught by the government. The Security Coordinator stated

20 that the government did not know the first name ofthe suspect. The Security CO(lrdinuior then 21 asked fiJr Mr. Fathi'~ d11 vcr's licensc! passport, and social8ecurity nll1nber. He left, called

22 corpmate security, and then provided Mr. Fathi with his boarding pass, All of this occurred

23 within full view ofthe other passengers waiting in line, and Mr, Futhi felt that they regarded. him

24 with suspicion and tear.

25

69. Mr. Fathi asked the Ground Security Coordinator whether there was anything h(;:

26 could do to prevent similar delay~ from occurring again in the future. The Ground Security

27 Coordinator told him that he might try using his frequent flyer number when making his

COMPlAINT ·cr.AS~ /\CT10N· 17

AMERICAN CIVIL LlBEIl"J'lES UNION
OF wASlllNGTON
705 SECOND AY"ENl'E, Sum: '00
SJ::A'j'I'LJ::, WASHINCTON 981C4
Tdcph(ll'~ (206) f,24-ilh4 ~ fax (206) 62·1·2190

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 18 of 28

reservation, which Mr. Fathi had already done, but that he would probably be subject to the same

2 procedure every time he flies.

3

70. On December 22,2003, Mr. Fathi was schoduled to fly from Seattle to Calgary.

4 When he arrived at the airport in Seattle, the ticket agent informed him that she was unable to

5 cheek him in and called her supervisor. Tn full view of the other passengers, the supervisor

6 informed Mr. Fathi that hi~ name had eome up on a No-Fly List circulated by the government

7 Mr. Fathi again felt emburrusst:!d and stigmatized for being connected to the NO-Fly List. The

8 supervisor left with Mr. Fathi's passport and then returned with the boarding pass.

9

71. In February 2004, Mr. Fathi flew to Tanzania on vacation. On his return flight, he

10 flew from Dar Es Salaam to Washington, with a layover in Amsterdam. When his flight landed

11 in Washingh.l11 on February 2g, 2004, he presented his passport and customs declaration to

12 immigration officials. The immigration agent paused after he typed in Mr. Fathi's name in the

13 computer, but then informed Mr. Fathi that he was free tl.1 proceed.

14

72. As Mr. Fathi proceeded to retrieve his 1llggagc, a UniiCHTI100 CLlstoms official

15 approached 1v1r. Fathi and asked to see his passport and cUstolns declaration. She then requested

16 that Mr. Fathi bring his bags to a counter and requested his social security number. Thc agents at

17 the counter indicated that Mr. Fathi's 11antc and date of birth are similar to ones on a govcmmcnt

18 watch list. Three unitbm,ed agents participated in interrogating Mr. Pathi .md would not let him

19 leave. This occurred in filii view of the (.1ther pa..":scngcrs at the airport, and Mr. Fathi felt

20 embarnl.ssed and stigmatized.

21

73. During this interrogation, Mr. Fathi protested providing his socia1 :;ecurity

22 number. 111 response, the custom~ agents threatened to liet'd.in him indetinitely. Mr. Fathi

23 attempted to prove his innocence by showing the letter or clearance provided by the TSA, as well

24 as his passport and driver's license, to nO avail. Because Mr. Futhi expttls:::cd reluctance to

25 provide his social security card, he was threutened with arrest. Eventually, Mr. Palhi provided

26 his social security card, After approximately one hour, Me. Fathi wa~ told that he wm.' tl-ee to go.

27 Prior to thall he did not feel free to leave.

COMPLAlNT· Cl,ASS ;\CnON - 18

AMERICAN CIVIL, I.lRERTIES uNION OF WASI-ITNGTON
705 $lKON[) ,\VI',III', SI.'I"I'I' 300
!jEArn F., Wi\.';[IIN(;-IO:\ 9~104 tdephone (20(,) (;21-21134 -I.'R~ (?Ol:» h24-21 'fc

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 19 of 28

1

74, As a result ofDet~ndants' actions, l\.1r. Fathi has been stigmatized as a suspected

2 terrorist. He is also ~mbjed to repeated interrogations; delays, enhanced searches, deteJ.!tions,

3 and/or other travel impediments. Additionally, Mr. Fathi cannot check. in to flights using the

4 internet or computerized e-ticket kiosks like other passengers.

5

PlaintilT Sarosh Syed

75, Mr. Sarosh Sycd is a United States citizen and is employed with the American

7 Civil Liberties Union of Washington. Prior to working for the ACLU, Mr. Syed was employed

8 with the Northwest Immigrant Rights Project. "Sycd" is a OOillnwn Moslem name in Pakistan,

9 where he was born. .tvl.r. Syed hm- no criminal record and nO lie..oe: to terrorist orgaliizations.

10

76, Mr. Sycd has been identifi~d h'l connection with the No-Fly List on five

11 OCCaS10ng, fn these instances, Mr. Syed arrives at the airport, approa(;he~ the ticket agent and

12 provides his name 1:'0 that he may obtain his boarding pass. Typically, he is told that there is a

13 problem; and thc agent takes Mr. Syed's identification into a back room. He is required to wait

'14 approximately forty-five minutes while supervisc..m. attempt to verify his identity and dear him

15 for boarding; this occurs at the tieket counter, in full view of the other passengers. During this

16 time, he is not free to leave hecausc the agent has his identilication. A few tirnes, a uniformed

17 !Security officcrbccame involvoo. and then Mr. Sycd was cleared to fly. On one occasion, two

18 unifOlmed agents weT!;': lnvolved. On another occasion, a unifonned POlt of Seattle officer, who

1() Mr. Syed rocalls as being armed, became involved and informed Mr. Sycd. that he may be on the

20 No-Fly List.

21

77. On these occasions, Mr. Syed':s boarding pass is stamped with an «"'3*", and he i~

22 required to go through a separate security line for enhunceJ. screening. '11IIS usually involves Ii

23 body search using a wand and a hand-search through his luggage by a unitormed security agent,

24 in flill vicw offcllow passengers and the traveling public.

25

78, A~ a result of Defendants! actions, Mr, Sycd has been stigmatized as a suspected

26 terrorist. lie is also subject to repeated interrogations. delays, enhanced searches, detentiollfi,

27 illld/or l)ther travc11tnpcdimcnts.

COMrLAINT·--CJ..ASS AC/'I(m - 19

AMELUCAN aVlL UBF.RTrES UNION
OF WASI-HNGTON
705 SEC0N'11 AVl'.NL~·" SIJI'J'J': 30D SEATILE, WA<;l cr;o.;mON -18104 tcl.:pholle (2()(,) 624-2184 -[;\)( (20!;.) f>14-2190

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 20 of 28

1

Mohamed Ibrahim

2

79. Mr. Mohamed Ibrahim is a United States citizen and a Project Voice Coordinator

3 for the American l'riellds Service Committee. He is married with two children and resides in

4 Phtladdphia. Mr. Ibrahim has been active in human rights and political organizing, especially

5 against the Bush Administration's anti-terrorism measures. He als() frequently speaks on behalf

6 of Amnesty International against tortur~, primarily again~t totalitarian regimes in developing

7 couutri,e:':> such as Sudan. Mr. Ibrahim is of East African descent and is a praclicing Moslem.

S "lbrahitnl> is a cOimnon name fi..)T Moslems. Mr. Ibrahim has no criminal record and no ties to

9 terrorist orgallizatioD8.

10

so. In comlcction with his advocacy work, for the past eight months, Mr. Ibrahim has

11 traveled approximately nvice a month. In Novemher 2003, he had his first encounter with the

"l2 Nn~Fly List when he was scheduled to fly from Philadelphia, PA, to S~n Diego, CA. He was not

13 ahle to obtain his boarding pass through web check-in procedures, and the e-ticket computer

14 kiosk infonncd him that he would need to proceed to the ticket agent.

15

81, Alter staliding in line, Mr. Ibrahim proceeded to the ticket agent and pmvided his

16 identification. The ticket agent took Mr.lhrahim's identification and then infot1t1ed him that the

17 computer was no longer working. The agent took Mr. Ibrahim's identification to a back room,

18 preventing Mr. TllTahim fi-om pT~)ceeding on his way. After approximately seven or eight

19 minutes, Mr. Ibrahim requested to speak with a supervisor to inquire ahout the delay. An agent

20 explained to him that his name appeared on a watch list. In view of all of the other passengers

21 standing in line, a supervisor who had been summoned explained that, pursuant to protocol, she

22 was required to call the FBL Mr. Ibrahim was extremely embarrassed and had no idea why he

23 would be identHied on the No-Fly List. Mr. Ibrahim was eventually cleared but subjected to ~U1

24 enhanced screening involving it security agent waving l:l- wanJ over his entire body, physical pat-

2S down; and hand-search orhis lLlggage. This enhanced search caused additional delay. Since

26 then~ similar events have occurred virtually every time .MI. lbrahim has attempted to check in for

27 his Hights and every time he has had a connecting flight. He is repeatedly stigmatized and

COMPLAINT CLASS ACTION· 20

AMERICAN CIVIL UBERTIES UNION OF WASHINGTON
70~ SFO")Nn AVENI 1', SIJ"1li 100
:'"BATTlE, Wil.". Jn]\fGltlN ':Ill 104
telephone (206) 614-1184 -, [ax (201.i) 62~·2lr.J

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 21 of 28

subjected to interrogations, delays, enhanced searches, detentions, and/or other travel

2 irnpediIn~ts v-irtually every time he flies.

3

82. On Januury 11, 2004~ Mr. Ibrahim flew to Bombay as part of the American

4 Friends Service Comntittee delegatitm tn the World Social Forum. On hi~ return trip~ during a

5 layover in Cairu ufJd 111 fuTl view of the other passengers standing nearby, two aimed and

6 unit(n'1t1ed poliee officers asked Mr. Ibrahim to step aside from the immigration line because his

7 nmne matched nne on a watch list. Mr. Ibrahim was fHghtened and embarrassed. The officers

8 searched through his luggage, resulting in a delay of approximutely forty-five minutes. During

9 this time, he did not tbel free to leave without submitting to the search.

10

83. Mr. Ibrahim thcn proceeded from the airport in Cairo to John P. Kennedy Airport

11 in New York City. When he reached the immigration counter and provided his passportj the 12 agent -inputted the infonnation into the computer ami then stopped processing Mr, Ibrahim's
13 pa<;sport. Mr. Ibrahim asked the agent to retunl his passport, but the agent refused. The agent

14 i11structed Mr. Ibrahim to wait for a customs oftici.al to accompany him to obtain his luggage.

15 Mr. Ibrahim did not feel free to leave. Again, lhis. occurred in full view of other passengers

16 waiting to proceed through immigration, and Mr. Ibrahim w;,ts embarrassed and felt that the 17 immigration ag~ts and the other passengers waiting in line regarded him wi lh fear and 18 suspicion. The agent questioned Mr. Ibrahim until thc other customs officer anived. After an 19 additionfll thirty-minute w;,tit, Mr, Ibrahim wa~ able to retrieve his luggage. The oi11cer then

20 escorted ML Ibrahjm to another area, where two unifonned agents searched his bags for

21 approximately fin hour, again in full view of other passengers. During this se!lrch, the agents

22 went throl1gh all of Mr. Ibrahim's personal belongings, opened personallctters, and went through

23 all o[,hjs dncuments and papers. During this entire time, Mr. Ibrahim did nol fecI free to leave.

24 When the search was completed, the supervising agent told Mr. Ibrahim, "Sorry for detaining 25 you." Mr. Ibrahim inquired a~ to whether thi::; would happen to him again in the future, given

26 that Ihey apparently wcre now satisfied with his identity, The agents could not assure

27 Mr. Ibnthim that he would n(.lt he subject to similar delays in the future.

COMPLAINT CI.ASS ACTION - 21

AMERICAN CIVIL UBER1·mS UNION
OF WASHINGfON 705 SIiOOND Al':E>'1JE, SUITE 300
SI·:A'i'I\.~, WA.<>H!N(;'JO!,\ 98101 ~kphone (206) ()24·2184 ~ t~l( (2Ob) 624·21 ~C

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 22 of 28

1

84. As a result ofDcfcndants' actions, Iv1r. Ibrahim has been stiglllatizoo a.. a

2 suspedoo tem)nst He i~ also ~uhject to tepeated interrogations, delays, enhanced searches,

3 detentions, andlor other travel impediments. Also,:Mr. Ibrahim cannot check in to nights using

4 the inlemel or comp111eri:r.ed e~ticket kiosks like other passengers.

5

Plaintiff David Nelson

6

85. 1v1:r. D~vid Nelson is Ii United States l,:itiZeJl and practking attorney in his own law

7 finn, Nelson and Nelson, Attomeys at Law, p,e. He serves as a member ofthe Bnard of

8 Governors of the lllillOis State Bar Association. Mr. Nelson graduated from Duke Law School in

9 1994, and resides in Belleville, Illinois, with his wife and. three children. He has n(l criminal

10 record or ties to terrorist organizations.

11

86. David Nelson ha<; been flagged a... a result of the No-Fly List between twenty to

12 thitly times. U'imdly, hI;: <l-ttempt:, t~J chINk in for hi'i flight at the curbside. On thc..r;.c occasions,

13 his name is tlagge,d by the No-Fly List when he checks his luggage. Oth~r times, when he goes

14 directly to the ticket counter to retrieve his boarding pass, the ticket agent typ~ in his name,

15 takes his driver's hcenscj calls someone 011 the telephonej and relays various pieces of personal 16 int(Jmlation, including his date of birth, before the agent can get clearance to process the

17 b<'Htnling pass. During these delays, Mr. Nelson is told to wait and is prevented from proceeding 1~ to the gate. On one occasion, a uniformed law enforcement officer was summoned to t.1Ucstion

19 Mr. Nelson. This incident occurred within full view (Jf other passengers, causing Mr. Nelson to

20 feel stigmatized. Almost every time he flies, he encounters questioning or delays. These stops

21 by authorities havc also occurred whet... Mr. Nelson was tra.veling WIth his inlant and toddler

22 children, causing confusion and anxiety among them.

23

A~ a rf;!~ult of being on the No-Fly List, Mr. Nelson feels stigmatized as a

24 suspected terrorist. He is also subject to de1ay~ or whafu::ed searches nearly every time he llies.

25 Mr. Nelson C.'lnnot check in to flights using curbside cheek in.

26

27

COMPT ,ATNT ,--CLASS ACTION - 22

.i\MERICAN aVIL LIBERTIES UNION OP WASHlNGfON
70:' ,)[(l,,'):-ID AW.'NT,"F,_':>UTE 300
~EATILE, WAsHrNcToN QS101 td~llhone (206) h24-21~4 ,-t.1X (2(6) h24-11';10

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 23 of 28

1

PlainHff Alexandra Hay

2

88. M~. Alexandra Hay is a United States citizen and a third-year student at

3 Middlebury College in Venmmt. Her parents reside in Boalsburg, Pennsylvania. She has no

4 criminal record or ties to terrorist organizations.

5

89. On November 25,2003, Ms, Hay tlew from Burlington, VT, to Harrisburg, PA, to

6 return home for the Thanksgiving break from her studies. When she arrived at the airport to

7 check in I~)T her flight, the ticket agent infonncd Ms. Hay, in full view of the other passengers

8 waiting in line, that her name appeared on the No-Fly List. Ms. Hay a.;;kcd why her name 9 appeared on the NO-Fly List, and the agent infonncd her that she could not respond. Ms. Hay
to felt frightened and embarrassed. After significant delay, the ticket agent was able to process
II Ms. Hay's boarding puss. During this time, M.-:;, Huy did not reel rree to leave or proceed onto 12 her flight.

13

90. Five days later, when Ms. Hay attempted to check in for her return flight, the

14 ticket agent again informed her that her name appeared on the No~Fly List, again in full view of

15 the other passengers waiting in line. Ms. Hay did not feel fi:ee to leave during the subsequtltit

16 delay in processing her boarding pass.

17

91. On one OT both occao::ioIiS, Ms.. Hay asked the ticket agent how she could have her

18 name removed from the NO-Fly List to prevent future delays. On one occasion, an airline agent

'19 ~tated that they did not know how she could have her name retm)ved from the No-Fly List. On

20 another occasion, an ag~nt stated that they wer~ not permitt~d to inionn her how to have her

21 name rem(lved.

22

92. As part of her college studies, Ms. Hay planned to fly to Europe in January 2004.

23 To preempt any further delays while she travels ubroad, Ms. Hay tiled a oompluint with the TSA. 24 Ms. Hay complied with the TSJ\'::=l procedures rOT dearing her name by completing the PIVF 25 along with thtl required certified copies of three pieces of identification. She obtainoo a letter "f

26 response from the TSA, informing her that the TSA eould not guarantee that her travel would be

27

COMPLAINT·· ·CLASS ACTION - 23

AMERICAN QVIL UHF.RTfF.S UNION
OF WASHINGTON
705 $I'.(X,lNl) I\VI'.N!!I-., SI :1'11' 100 SI'.Am.r,,'WI\~rnNCToN 9HIQ4
tt'kphQm: (106) 62·1·2134 -fAA (206) 624 ·2190

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 24 of 28

1 free of delay in the future, and that she might still experience 'ienhaneed screening" at security

2 screening locations.

3

93. On behi:l-lfofMs. Hay, the American Civil Liberties Union ofPenn~ylval1ia

4 negotiated with the TSA to provide Ms. Hay with an escort to facilitate her check~in from

5 Philadelphia to Paris.

6

94. As ~ result ofDefendauts' actions, Ms. Hay has been stigmatized as a suspecled

7 tt:lTUri~t She i::; ..lsl) subject to repeated delays. Ms. Hay cannot check in to flights using

8 computerized e-ticket kiosb like other pa,'isengers.

9

CLASS ACTION ALLEGATIONS

10

95. Pursuant to Federal Rule of Civil Procedure 23(a) and (h)(2), Plaintiffs bring this

11 action on behalf (.lfthemse!ves and all other similarly situated individuals. Plaintiffs ask the

12 Court to certify as a class all individuals who have been or will be subject to interrogations,

13 delays, enhanced searches, and/or detentions as a result of having a name identical Or similar to

14 one on the No~FIy List.

15

96. Clas.'5-Wid~ Relief Defendants have acted or refused to act on grounds generally

16 applicable to the class as a whole. Class~wide declaratory and injullctive relief are therefore

17 appropriate under Rule 23(b)(2).

18

97. Num~rosity: The cl~::; i::; (>0 ]lumen)u::; that joinder of all members is

19 impracticable. Although Defendants refuse to disclose the number ()fim.lividual~ on the No~Fly

20 List, on infonnation and belief, the No-Fly List contains hundreds if not thousands ofnl:lmes. As

21 c)fApri,1 8, 2003, San Francisco International Airport alone reported that 339 pas!';engcrs had

22 been subjected to heightened scrutiny as a result of the No-Fly List between September 19, 2001 23 and March 24, 2003. Oakland Airport reported that as of May 19, 2003, the No~Fly List was 24 eighty-eight (88) page~ long. "[SA document.s acknowledge that, during Decemher 2002, the 25 TSA received thirty (30) calls per day from airlines regarding false positives on the No-Fly List. 26 In addition, the class includes individuals who will be subject to No~Fly List procedures in the 27 future, whose idtlntitie~ are unknowable at the present time.

COMPLAINT· CLASS ACTION - 24

AMERICAN CIVIL LlBERl'lES UNION 01' WASIUNGTON
705 SECOND AVI'.Nl)~" $VTl' 300
~EATIU, WIISI!lNC1'ON 98104
telc:ph.one (106) 624-2184 -fax (206) 624-2190

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 25 of 28

98. Commonality: There are questions oflaw and fact common to all members of the 2 ~1fL$~, 1ttdudit'tg tht;': fa.c:ts regaroit'lg Dd'eJ..dat\t~' ma.thlgt':fr'lt':f1t and a.dm1fd~tfation of the No-Fly

3 List, and whether these facts establish constitutional violations. The common factual qutl~ti{)ns

4 include Defendants' (a) criteria for placing names onlhc No-Fly List; (b) directives and

5 guidancc~ if any, to airlil1e~ to implement the No-Fly List; (c) procedures, if any, for ma1ntaining

6 the accuracy offhe No-Ply List; (d) procedures, if any, for removing names from the No-Fly

7 Li~t; (e) procedurtls, if any, for deteJl11ining whether an individual has been mistakenly Hagged

g on the No-Fly List; and (f) procedures, if any, for protecting an individual from being mistakenly

9 flagged in the future. The common legal questions include whether the facts proved at trial

10 violate the Fifth Amendment and Fourth Amendment rights ofplaintitl~.

11

99. Typicality: The claims of the representative plaintiffs are typical of those of the

12 class. All plaintiffs arc subject to being de1ayoo and stigmatized a<;. suspected termristf'.i due to 13 the No-Fly List. The named plaintiffs ~ach have heen affected by the constitutionally deficient 14 NO-Fly List polidef'.i 311u ~ace a :,uhshmtial ri"k of being adversely affected by them in the fi~tme_

'15 All plaint1l1s win continue to be subject to such treatment absent the requested relief.

16

100. Adequu"y olelass Representatives: The class representatives will tllirly and

17 adeqtmtely represent the interests of the class because thcy have been subjected to the treatmcnt

1R challenged by the class as a whole. They have no interests in this matter that arc antagonistic to

19 (.lther plaintiffs.

20

101. Adequacy o.fClass Counse(· Undersigtied c~)uflsel re$pectl'ully tequ~$t thal they

21 be appiJinted interim class counsel and ultimately he appointed ctas::; cOllnsel. The under~igned

22 have many years of experient;e in t;ivil rights and class adion litibration and will adequately and

23 fairly represeJ1t the mterests ofthe class. In addition, the undersigned arc familiar with the No-

24 Fly List pmt;edures as a result of being counsel in the FOIA litigalion currenlly pend-ing. The

25 ACLU has the financial resourt;es to zealously represent the class.

26

27

COMPLAINT----CI.ASS ACTION - 25

AMERICAN QVlL LIBERTIES UNION
OF WASHINGTON
7(]5 S'HJ'.l'NI) '\\1'1'.1.11". SlITTI:: 300 SEATIUi, WASIlINCTOX 9~104 tekphone (106) G:!.4-:!.184 ~fu (10(,) (,24-21<)0

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 26 of 28

I

INJUNCTIVE AND DECLARATORY RELIEF

2

I02. An actual and immediate controversy has arisen and now exists between Plaintiffs

3 and Defendants related to their respective rights and duties. Defendants have unlawful1y failed

4 to comply with constHutitmal requirements by engaging in the acts and omissions described in

5 this Complaint. PlaintHr., and the class therefore are tlntitled to a declaration of rights with
6 respect to this (,:ontrover~y,

7

103. Plaintiffs and the class they represent have no adequate remedy at law.

8 Defendants ha.ve acted, and continue to act, to deprive plaintifJs or their constitutional rights.
9 Plaintiffs arc suffering and will CQutinue to suffer irreparable injury as a result of the policies and

10 prac"!ice. described ill this Complaint unless those policie, "od practices are enjoined by this

1I Court. Plaintiffs have no plain, adequate or speedy remedy at law and arc entitled to injunctive

12 relief against Defendants. Plaintiffs have no administrative remedy because Defendants' policies

13 and practices preclude any administrative deterrllinations from affording actual relicL

14

CI,AIMS FOR RELllW

15

Count I: Violation of Fifth Amendment Right to Due Process

16

'104. Plaintiffs bring a due process claim 011 behalf of the class. Individuals whose

17 names are identical or similar to those on the No-Fly List are stigmatized and subjected to

18 interrogations, delays, enhanced body and luggage searches, detentions, and/or other travel l~) impcdimCT1.t~. Thtffie harm.s trigger the procedural protections of the Fitlh Amendment's Due

20 ProCtlll!:l Clause.

21

105. Defendants' actic)11s in administering and. maintaining the No-Fly List deprive

22 Plaintiffs of Uberty and property interests protected by the Fifth Amendment. Defenda.nt.s an~

23 grossly negligent, reckless, andlor deliberately il1different to the risk that their actions will cause

24 these deprivation!:l. The deprivations arc without due process of law because Defendants have 25 failed to provide constitlltional1y adequate mech~nisms for Plaintiffs to avoid being suhje<;ted t()

26 the stigma, interrogation., delay., enhanced searches, detenli""". andlor other travel

27 impediments associated with having a name identical or similar to a name on thc NO-Fly List.

COMPI ,A INT·-CLASS ACTION - 26

AMERICAN ClVIL UBERnES UNION 01' WASHlNC;rON
705 SEC.oND AVl'iNllE, Sl.l'l1' 300 5£.o:J'ltl'" WA.'iHIN(Tlt)N '!Nl04 telephone (20';) f,}4-:;'1S+ -r~ (206) 621 21~O

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 27 of 28
•

Count II: Violation of the Fourth Amendment

2

Plaintiffs bring a Fourth Amendment claim on hehalfofthl;': Chl88. The Fourth

3 AmcndmCfJt to the United Stutes Constitution protects individuals from unreasonable searches

4 and seizures. Defendants' actions in administering and maintaining the No-Fly List cause

5 plaintiffs to be subjected to unreasonable searches and seizures, in violation of the Fourth

6 Amendment.

7

PRAYER FOR RELIEF

8

WHEREFORE Plaintifls respectfully request that the Court:

9

I.

Certify tilis action as a class action pursual1t to Foo. K eiy, P. 23(b)(2).

10

2.

Dec1s1'e that Deti:mdunts' maintenance, managcmcnt~ and disscm1naHon of the

11 No-Fly List are unconstitutional under the F1Jlh and Fourth Amendments.

12

3.

Requirc Delendanto,; to remedy immediately the due process and Fourth

13 Amendment dcfects in the maintenance, management, and disscminatinn or the NO-Fly List.

14

4. Award Plaintiffs costs and. reasonable attomcys fees pursuant to 2R lJ.S.C.

15 § 2412, or other applicablc law.

16

5.

Grant such other and further relief as the Cnurt deems j u~t !tud proper.

17

DATED thi, 6'" day of April, 2004.

18

Respectfully submittoo~

19

AMERICAN CIVIL LlBERTIRS UNION

20

FOIlNDA nON
Reginald T. Shuford

21

Catherine Y. Kim

125 Broad Street, 18rh Floor

22

New York, NY 10013

Tel: 212-549-2613 23

24

25

26

27

COMPLA1NT-CLASS ACTION - 27

AMERICAN CIVIL LIBEKflES UNION
OF WASHINCTON
7a~ SEU}NI) A\l',NtIE, ~UTE 3eD Sr:ATIlE, WASHWGTON n104
t~kplum~ (leu;) "'i4-Z1~4 -I'mr (206) 6Z+-21~Q

Case 2:04-cv-00763-TSZ Document 1 Filed 04/06/04 Page 28 of 28
•

2
4 5 6 7 8 9 10 11 12 13 14
15
16 17 18 19
20
21 22 23 24 25 26 27
COMPLATNT-CLASS ACTION - 28

AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON
By' ~"r... C~"i'- k:> i?--{ Is... Aaron Caplan, WSB#22525 705 Second Avenue, Suile 300 Seattle, WA 98104 Tel: 206-624-2184
Fax: 206-624-2190
AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA Jayashri SJikantiah 1663 Mission Streetj Suite 460 San Francisco, CA 94103 Tel: 415-621-2493 Fax: 415-255-1478 SUMMIT LAW GROUP PLLC
Michael E. Kipling, WSBA #7677 315 Fifth Avenue South, Suite 1000
Seattle, WA 98104 Tel: 206-676-7000
Fax: 206-676-7001
rrs Attorneys for Plainti
AMERICAN CIVIL UBER'I1E..~ UNION
7or:,OSI'f.CDWNDAASVHIiNINI,JlG'., T,uOmN}oo
ShATTLE, WASHINGTON 981iJ4
telephone (20!i) !:.24-21Bi _ fax (206) 624-21~O

 
 351 F.Supp.2d 1119 (2005)
Michelle D. GREEN, et al., Plaintiffs, v.
TRANSPORTATION SECURITY ADMINISTRATION, et al., Defendants.
No. C04-763Z.
United States District Court, W.D. Washington, At Seattle.
January 7, 2005.
1120*1120 1121*1121 Aaron H. Caplan, American Civil Liberties Union of Washington, Seattle, WA, Catherine Yonsoo Kim, American Civil Liberties Union (N.Y.), Immigrants' Rights Project, New York City, Michael E. Kipling, Summit Law Group, Seattle, WA, Reginald T. Shuford, American Civil Liberties Union (N.Y.), Immigrants' Rights Project, New York City, for Michelle D. Green, John F. Shaw, David C. Fathi, Sarosh Syed, Mohamed Ibrahim, David Nelson, Alexander Hay on behalf of themselves and all others similarly situated, Plaintiffs.
Brian C. Kipnis, U.S. Attorney's Office (SEA), Seattle, WA, Diane Kelleher, U.S. Department of Justice, Joseph William LoBue, U.S. Department of Justice, Civil Division Federal Programs, Washington, DC, for Transportation Security Administration, David M. Stone, Department of Homeland Security, Tom Ridge, Defendants.
ORDER
ZILLY, District Judge.
I. INTRODUCTION
This matter comes before the Court on Defendants' motion to dismiss for lack of subject matter jurisdiction and Defendants' motion to dismiss for failure to state a claim upon which relief can be granted, docket no. 15. The Court heard oral argument on these motions on November 4, 2004, and took the matter under advisement. The Court now, being fully advised, enters the following Order.

II. BACKGROUND
The Transportation Security Administration ("TSA"), an agency within the United States Department of Homeland Security, is responsible for security in all modes of transportation. Longmire Decl., docket 16, ¶ 3. As part of its statutory mandate with respect to aviation security, the TSA is required to provide for the screening for weapons, explosives, and other destructive substances, of all passengers and property that will be carried on passenger aircraft. To further these purposes, the TSA has implemented regulations requiring each aircraft operator to adopt security programs. When the TSA determines that additional security measures (in addition to the security programs) are necessary, it issues "Security Directives" to regulated aircraft operators. Id. at ¶ 5. Compliance by air carriers with Security Directives and emergency amendments is mandatory.
TSA has established Security Directives relating to two groups of individuals who have been assessed to pose a risk to aviation safety. The first group, identified on a "No-Fly List," consists of individuals who are prohibited from flying altogether. The second group, identified on a "Selectee List," consists of individuals who must be "selected" by air carriers for additional screening before they are permitted to fly. The Security Directives also prescribe the procedures to be followed, and the specific security measures to be taken by air carriers, when individuals identified on the NoFly or Selectee lists seek to board an aircraft. Id. at ¶ 7. In this Order, both the "NoFly List" and the "Selectee List" are collectively referred to as the "No-Fly List."
The Defendants distribute updated versions of the No-Fly List, as attachments to Security Directives and Emergency Amendments, to commercial airlines operating1122*1122 within the United States. The No-Fly List is also distributed to airport security personnel, customs and immigration agents, and other federal lawenforcement agencies. For security reasons, the TSA will not divulge the specific security measures followed by air carriers when they encounter an individual identified on the No-Fly List. Longmire Decl., docket 16, ¶ 9.
Plaintiffs commenced this action on behalf of themselves and other similarly situated individuals to challenge TSA's adoption, maintenance, dissemination, administration, and management of both the No-Fly List and the Selectee List.[1]
Plaintiffs allege they are innocent passengers with no links to terrorist activity, but have names similar or identical to names on the No-Fly List. Compl., docket no. 1, ¶ 3. Plaintiffs allege that when they travel by air, they are mistakenly identified by

airport personnel, often in full view of co-workers and the general traveling public, as individuals whose names actually appear on the No-Fly List. As a result, Plaintiffs allege that airline personnel subjected them to enhanced security screening, including physical pat-downs, wanding, and physical searches of luggage. Plaintiffs allege that they do not feel free to leave. To date, no named Plaintiff has missed a flight or been subjected to enhanced screening for more than one hour.
Plaintiffs allege that Defendants have failed to disclose basic questions such as the criteria for placing names on or removing names from the No-Fly List, procedures for amending information on the No-Fly List, or rules for maintaining or managing the No-Fly List.
The TSA has instituted an ombudsman process whereby individuals can contest their placement on the No-Fly List. Defendants have submitted documents which describe the clearance process administered by the Office of the Ombudsman. SeeNotice of Filing, docket no. 26, Ex. A. However, Plaintiffs allege that the ombudsman process is not publicized, and individuals who are mistakenly associated with the No-Fly List are told that there is no recourse.
Plaintiffs allege that Defendants' actions in maintenance, management, and dissemination of the No-Fly list are unconstitutional. Plaintiffs specifically allege that the Defendants have "deprive[d] Plaintiffs of liberty and property interests protected by the Fifth Amendment" and have "subjected [Plaintiffs] to unreasonable searches and seizures in violation of the Fourth Amendment." Compl., docket no. 1, pp. 26-27. Plaintiffs seek declaratory judgment that the maintenance, management, and dissemination of the No-Fly List is unconstitutional, and seek to require Defendants to remedy the due process and Fourth Amendment defects of the No-Fly List. Id. at p. 27.
Defendants have moved to dismiss Plaintiffs' Complaint for lack of subject matter jurisdiction. Defendants contend that the Security Directives are final orders issued by the TSA, and that any action for judicial review must be filed with the Court of Appeals. In the alternative, Defendants have moved to dismiss Plaintiffs' claims for failure to state a claim for which relief can be granted. See D. Mot. to Dismiss, docket no. 15.
1123*1123 By Minute Order dated October 29, 2004, docket no. 25, the Court ordered Defendants to submit for in camera and ex parte review the following:

(a) A copy of the applicable Security Directives;
(b) A copy of the ombudsman processes available for expunging innocent passengers' names from the No-Fly List;
(c) A copy of the procedures used for processing Passenger Identity Verification Forms.
Pursuant to the Court's Order, on November 2, 2004, Defendants submitted six Security Directives procedures, portions of the No-Fly List and Selectee List, the Applicable Policy Memorandum dated July 9, 2004 and April 22, 2003, and certain other materials. The Court has reviewed the Defendants' submissions in camera and these documents have been filed under seal.
III. ANALYSIS OF JURISDICTIONAL ISSUES
(A) Special Review Statutes for Orders under the Federal Aviation Act.
Congress has enacted a special review statute for final orders of the Secretary of Transportation promulgated under the Federal Aviation Act. The applicable statute at issue, 49 U.S.C. § 46110(a), relating to judicial review, provides, in part, as follows:
[A] person disclosing a substantial interest in an order issued by the Secretary of Transportation (or the Under Secretary of Transportation for Security with respect to security duties and powers designated to be carried out by the Under Secretary or the Administrator of the Federal Aviation Administration with respect to aviation duties and powers designated to be carried out by the Administrator) in whole or in part under this part, part B, or subsection (l) or (s) of section 114 may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business. The petition must be filed not later than 60 days after the order is issued.[2]
Section 46110(a) and its predecessor statute found at § 1486(a) are "not to be given a narrow, technical reading; instead it is to be interpreted expansively." San Diego Air Sports Center, Inc. v. Fed. Aviation Admin., 887 F.2d 966, 968 (9th Cir.1989)(approving a similar interpretation of the predecessor statute by the Fourth, Seventh, Eighth and District of Columbia Circuits). The San Diego Air Sports court stated that it agreed with other courts that "the purposes of special review statutes —

coherence and economy — are best served if courts of appeal exercise their exclusive jurisdiction over final agency actions." Id. (quoting Sima Prods. Corp. v. McLucas, 612 F.2d 309, 313 (7th Cir.), cert. denied, 446 U.S. 908, 100 S.Ct. 1834, 64 L.Ed.2d 260 (1980)) (emphasis added). Thus, "the court of appeals' jurisdiction is exclusive with regard to review of final FAA action." Clark v. Busey, 959 F.2d 808, 811 (9th Cir.1992).
Plaintiffs raise two arguments in favor of district court jurisdiction. First, Plaintiffs argue that the Security Directives are not "final orders" within the meaning of § 46110. Second, even if they constitute final orders, jurisdiction is proper because (a) the agency decision did not consider the claims raised by Plaintiffs, and (b) Plaintiffs raise broad constitutional challenges. In addition, Plaintiffs argue that in 1124*1124 the event the Court considers the declaration of Lee Longmire, docket no. 16, regarding this Court's jurisdiction, the motion to dismiss should be converted into a motion for summary judgment. Plaintiffs further argue that in such event, Plaintiffs would be entitled to the following discovery, as outlined in the Shuford declaration, docket no. 19, before having to respond to the motion:
• Investigation regarding whether the Longmire Affidavit accurately describes the Security Directives;
• Investigation regarding whether the Security Directives address the problems asserted by plaintiffs regarding inaccurate listings or mistaken identity;
• Investigation regarding the process used to create the Security Directives;
• Investigation regarding the authorship of the Security Directives;
• Investigation regarding what, if any, agency procedures were available to consider the types of constitutional challenges asserted by plaintiffs; and
• Investigation regarding whether there was notice and opportunity to be heard before defendants issued the Security Directives.
See Shuford Decl., docket no. 19, ¶ 3.
When resolving a Rule 12(b)(1) motion to dismiss for lack of jurisdiction, the Court may look beyond the Complaint to matters of public record without having to convert the motion into one for summary judgment. White v. Lee, 227 F.3d 1214, 1242 (9th

Cir.2000). In this case, the Court has considered the declaration of Lee Longmire, docket no. 16. The declaration contains substantial facts within the public record.See Longmire Decl., docket no. 16, ¶¶ 1-8. However, the declaration also states that in view of the sensitive nature of the Security Directives, they cannot be further described on the public record. The Court has also reviewed the documents submitted by the government, at the Court's request, for in camera and ex partereview. The Court will not consider, for purposes of the motion to dismiss for lack of personal jurisdiction, the non-public records reviewed in camera. The Plaintiffs' motion to convert the motion to dismiss into a motion for summary judgment, and to allow discovery, is DENIED.
(B) The Security Directives and No-Fly Lists are final orders within the meaning of § 46110(a).
Section 46110 authorizes appellate review of "orders," which has been interpreted in the Ninth Circuit as follows:
`Order' carries a note of finality, and applies to any agency decision which imposes an obligation, denies a right, or fixes some legal relationship. In other words, if the order provides a `definitive' statement of the agency's position, has a `direct and immediate' effect on the day-to-day business of the party asserting wrongdoing, and envisions `immediate compliance with its terms,' the order has sufficient finality to warrant the appeal offered by section [46110].
Crist v. Leippe, 138 F.3d 801, 804 (9th Cir.1998) (quoting Mace v. Skinner, 34 F.3d 854, 857 (9th Cir.1994)) (internal quotation marks and citations omitted).
The No-Fly List and the Selectee List are Security Directives issued by TSA pursuant to 49 U.S.C. § 114(l)(2)(A), which authorizes the TSA to issue Security Directives without providing notice or the opportunity for comment in order to protect transportation security. These Security Directives provide a definitive statement of the TSA position and have a direct and immediate effect on persons listed on the No-Fly List, barring travel on commercial aircraft. Each aircraft operator is required by law to comply immediately 1125*1125 with Security Directives. 49 CFR § 1544.305(b).
Plaintiffs' argument that the Security Directives are not orders within the meaning of Section 46110 because the TSA has not created or published findings of fact or otherwise created an administrative record is without merit. In San Diego Air

Sports,887 F.2d at 970, the court held a letter from the FAA providing that parachuting would not be allowed in the San Diego Terminal Control area was an order, even though the record consisted of little more than the letter. See also Southern California Aerial Advertisers' Ass'n v. Fed. Aviation Admin., 881 F.2d 672, 676 (9th Cir.1989) (letter from FAA prohibiting fixed wing aircraft over Los Angeles Airport was final order even though the entire administrative record in this case consisted of the letter and the FAA proposal). To be deemed final, the Security Directives need not result from lengthy administrative proceedings; rather, the Security Directives must only impose an obligation or define some legal right.
Furthermore, § 46110(a) grants the courts of appeal exclusive jurisdiction over orders that were issued without any form of adjudication. In 2003, Congress amended § 46110 and authorized the courts of appeal to review orders so long as the orders are promulgated "under this part, part B, or subsection (l) or (s) of section 114." 49 U.S.C. § 46110(a). See also Pub.L. No. 108-176, § 228, 117 Stat. 2490, 2532 (Dec. 12, 2003). Section 114(l)(2)(A) allows the TSA to issue security directives "without providing notice or an opportunity for comment." 49 U.S.C. § 114(l) (2)(A). Thus, Congress clearly intended the courts of appeal to review Security Directives issued absent any form of adjudication, and Plaintiffs' arguments to the contrary are without merit.
The Security Directives are "orders" for the purposes of § 46110(a), and the courts of appeal have exclusive jurisdiction over Plaintiffs' claims relating to them. Clark,959 F.2d at 811.[3] Thus, to the extent these Security Directives establish a No-Fly List of persons who are prohibited from flying, or create a Selectee List resulting in persons who will be selected for additional enhanced screening and resulting delays, this Court has no subject matter jurisdiction.
In contrast, to the extent Plaintiffs challenge the procedures administered by the Office of the Ombudsman, to allow plaintiffs with names identical or similar to names on the No-Fly List to be cleared, the procedures are not "orders" within the meaning of § 46110(a). Rather, the clearance procedures are voluntary procedures which allow individuals who are delayed as a result of enhanced screening to attempt to expedite future airline check-in procedures. These procedures allow interested persons, including Plaintiffs, to avoid the heightened screening procedures. Because these procedures are not "orders" within the meaning of § 46110, the Court has jurisdiction to consider Plaintiffs' Fifth Amendment Due Process claims relative to these procedures.

(C) Plaintiffs' Broad Constitutional Challenges
Plaintiffs contend that even if the Security Directives are "orders" within the meaning of § 46110, this Court also has jurisdiction because Plaintiffs raise broad constitutional challenges to the Security Directives. The question presented is whether Plaintiffs' claims are "inescapably 1126*1126 intertwined" with a review of the procedures and merits surrounding the Security Directives, or raise broad constitutional challenges which do not require a review of the procedures and merits of the Security Directives themselves. Crist, 138 F.3d at 803; Mace, 34 F.3d at 858. If the challenge is inescapably intertwined with a review of the procedures and merits surrounding the Security Directives, jurisdiction is solely with the courts of appeal.Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 975 (9th Cir.1994); Tur v. Fed. Aviation Admin., 104 F.3d 290, 291-92 (9th Cir.1997).[4] On the other hand, if the claims raise broad constitutional challenges that are not inescapably intertwined with the Security Directives, this Court would have jurisdiction to consider the issues raised notwithstanding the fact that they constitute orders within the meaning of § 46110. Crist, 138 F.3d at 803. The Ninth Circuit has clearly set forth the question to be answered to determine jurisdiction for broad constitutional challenges. However, the application of the guiding principles announced in these decisions is more problematic. A close review of the Plaintiffs' claims is therefore necessary and instructive.
(1) Count I: Violation of Fifth Amendment Right to Due Process.
Plaintiffs' Complaint raises a broad constitutional attack against the TSA's administration and maintenance of the No-Fly List under the Fifth Amendment. SeeCompl., docket no. 1, ¶¶ 104-05. More specifically, Plaintiffs allege in Count I that individuals whose names are identical or similar to those on the NoFly List are "stigmatized and subjected to interrogations, delays, enhanced body and luggage searches, detentions, and/or other travel impediments," and that these "deprivations are without due process of law because Defendants have failed to provide constitutionally adequate mechanisms for Plaintiffs to avoid being subjected to the stigma, interrogations, delays, enhanced searches, detentions, and/or other travel impediments associated with having a name identical or similar to a name on the No-Fly List." Id. at ¶¶ 104-05. As a result, Plaintiffs allege they have been deprived of liberty and property interests protected by the Fifth Amendment. Id. at ¶ 105.
(2) Count II: Violation of the Fourth Amendment

In Count II, Plaintiffs allege that "Defendants actions in administrating and maintaining the No-Fly List cause plaintiffs to be subjected to unreasonable searches and seizures in violation of the Fourth Amendment." Id. at 27.
(3) Relief Sought by Plaintiffs
Plaintiffs' Complaint seeks broad equitable relief to modify the Security Directives in a fashion to make them constitutional. However, at oral argument, Plaintiffs' counsel substantially narrowed the remedy sought, as follows: Plaintiffs' counsel conceded that (a) Plaintiffs do not challenge the adoption of the Security Directives or the procedures followed before they were implemented, Transcript, docket no. 29, 42:59, or the government's right to issue a Security Directive that says certain people should be on a No-Fly List, id. at 32:21-33:2; and (b) Plaintiffs do not challenge the government's decision that, if someone has a name similar to someone who is on the No-Fly List, "that there 1127*1127 should be additional security to that person." Id. at 33:4-10.
The gist of what Plaintiffs do challenge in this litigation is the enhanced scrutiny and resulting delays incurred by the Plaintiffs who have identical or similar names to persons on the No-Fly List. Plaintiffs' counsel stated this narrowed focus at oral argument as follows:
we are seeking some remedy that would allow Plaintiffs to avoid the ongoing and repeated investigations, interrogations, detention, delays and enhanced searches that they've experienced virtually every time they fly.
Id. at 28:6-13.
A careful review of Plaintiffs' claims in their Complaint demonstrates that Plaintiffs advance three basic challenges to the Security Directives: (1) the adoption, maintenance, and dissemination of the No-Fly List violates the Fourth and Fifth Amendments; (2) the heightened security screening measures that Plaintiffs were subjected to resulted in unconstitutional seizures in violation of the Fourth Amendment; and (3) that Defendants failed to provide constitutionally adequate remedial procedures in violation of the Fifth Amendment.
(4) Analysis of Claims and Relief Sought

Plaintiffs' challenge to the adoption, maintenance, and dissemination of the No-Fly List under the Fourth and Fifth Amendments is inescapably intertwined with a review of the procedures and merits surrounding the adoption of the No-Fly List. Plaintiffs' challenge here, to the extent it remains after the concessions at oral argument, would involve a direct challenge to the adoption and maintenance of the Security Directives.Greenwood, 28 F.3d at 975; Crist, 138 F.3d at 803. As a result, this Court does not have jurisdiction to consider these alleged constitutional challenges.
Plaintiffs' challenge to the heightened security measures under the Fourth Amendment is also inescapably intertwined with a review of the Security Directives. The TSA is required to "identify individuals on passenger lists who may be a threat to civil aviation or national security," and when such an individual is identified, to prevent him or her "from boarding an aircraft" or "take appropriate action...." 49 U.S.C. § 114(h)(3). The TSA is authorized to issue Security Directives prescribing specific security measures when such measures "are necessary to respond to a threat assessment or a specific threat against civil aviation." 49 C.F.R. § 1544.305(a). Security Directives also include instructions to air carriers of the security procedures to be followed when individuals identified on the No-Fly List attempt to board commercial aircraft. Longmire Decl., docket no. 16, ¶¶ 4-9.
Plaintiffs allege that by having names similar or identical to names on the No-Fly List, they are subjected to unconstitutional searches and seizures, and Plaintiffs argue that their allegations are broad constitutional challenges to this agency action. However, Plaintiffs' Fourth Amendment claims are distinguishable from the claims inCrist and Mace, where the plaintiffs brought broad constitutional challenges that were severable from the merits of the order revoking their licenses. Here, Plaintiffs do not challenge agency procedures in promulgating the Security Directives. Plaintiff's Fourth Amendment claims challenge the merits of the security and screening procedures mandated by the Security Directives, and any adjudication of Plaintiffs' Fourth Amendment claims is inescapably intertwined with a review of the Security Directives. Furthermore, Plaintiffs ask this Court to remedy the 1128*1128 alleged Fourth Amendment defects in the No-Fly List by issuing an injunction requiring Defendants to modify or amend the challenged security and screening procedures. Compl., docket no. 1, at 27. Thus, Plaintiffs' Fourth Amendment claims necessarily would involve a review of the security and screening procedures mandated by the Security Directives, and jurisdiction to challenge these issues is exclusively limited to the courts of appeal pursuant to statute. 49 U.S.C. § 46110; Crist, 138 F.3d at 803.

Finally, Plaintiffs contend that Defendants have failed to provide constitutionally adequate remedial procedures in violation of the Fifth Amendment. Plaintiffs correctly argue that the TSA Ombudsman Clearance Procedures do not constitute "orders" for the purposes of § 46110. The Ombudsman Clearance Procedures have established a voluntary procedure whereby individuals may attempt to expedite future check-in procedures. Thus, the Court has jurisdiction to consider Plaintiffs' Fifth Amendment due process claim.
As a result, and for the reasons stated in this Order, this Court does not have jurisdiction to consider Plaintiffs' claims in Count I relating to the administering and maintaining of the No-Fly List, or any resulting liberty or property interest protected by the Fifth Amendment. Similarly, this Court does not have jurisdiction to consider Plaintiffs' Fourth Amendment claims in Count II of the Complaint. Defendants' motion to dismiss these claims for lack of subject matter jurisdiction is GRANTED. However, to the extent Plaintiffs' Fifth Amendment claim challenges the Ombudsman Clearance Procedures, this Court does have subject matter jurisdiction because such procedures do not constitute orders. It will therefore be necessary to address Defendants' Second Motion to Dismiss this remaining claim for failure to state a claim on which relief can be granted.
IV. DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
The Fifth Amendment guarantees that no person shall be deprived of a liberty or property interest without due process of law. U.S. CONST. Amend V. Plaintiffs contend they have been deprived of a constitutionally protected liberty and property interest. Plaintiffs contend that "the government stigmatized plaintiffs by identifying them on the No-Fly Lists, and, as a result, plaintiffs were treated as suspected terrorists." Opposition brief, docket no. 18, at 10. Plaintiffs complain that adequate process is not available to provide clearance for persons who have been mistakenly identified in the No-Fly Lists. Although Defendants have instituted an ombudsman process to provide clearance, Plaintiffs allege these procedures do not provide adequate notice or a meaningful opportunity to clear their names. Complaint, docket no. 1, ¶¶ 30, 34, 50, 64-66. Defendants have served and filed publicly available documents that describe the expedited No-Fly List and Selectee List Clearance Process, administered by the Office of the Ombudsman of the TSA. See Notice of Submission, docket no. 26. Defendants have submitted evidence that three of the named Plaintiffs have been "cleared" through the TSA Ombudsman process. Several other Plaintiffs have failed to use the procedures established by the

Ombudsman process. All Plaintiffs allege the procedures are inadequate and violate the Fifth Amendment.
Plaintiffs raise a constitutional challenge to the procedures after the No-Fly Lists have been promulgated. Plaintiffs allege that the Defendants have "failed to provide constitutionally adequate mechanisms for 1129*1129 Plaintiffs to avoid being subjected to the stigma, interrogations, delays, enhanced searches, detentions, and/or other travel impediments associated with having a name identical or similar to a name on the No-Fly List," Complaint, docket no. 1, ¶ 105. Thus, Plaintiffs have alleged a violation of their due process rights.[5]
Defendants contend that unless Plaintiffs can establish a protected "property" or "liberty" interest protected by the Fourth Amendment, the Court need not address whether the government procedures comport with due process. To make out a claim under the Due Process Clause of the Fifth Amendment, Plaintiffs must show: (1) a deprivation of a constitutionally-protected liberty or property interest; and (2) a denial of adequate procedural protections. Hufford v. McEnaney, 249 F.3d 1142, 1150 (9th Cir.2001). "The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in `property' or `liberty.'" American Mfr. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). Plaintiffs do not argue that they were deprived of a property interest. Instead, Plaintiffs argue that the alleged searches and seizures deprived them of liberty interests protected by the Fourth Amendment. To the extent Plaintiffs base their Fifth Amendment claim on the heightened security measures prescribed by the Security Directives, the Court does not have jurisdiction to consider the claim. However, Plaintiffs' Fifth Amendment claim is also based on the stigma-plus doctrine.
To prevail on a claim under the stigma-plus doctrine, Plaintiffs must show (1) public disclosure of a stigmatizing statement by the government, the accuracy of which is contested; plus (2) the denial of some more tangible interest such as employment,' or the alteration or a right or status recognized by state law. Ulrich v. City & County of San Francisco, 308 F.3d 968, 982 (9th Cir.2002) (citing Paul v. Davis, 424 U.S. 693, 701, 711, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)). "[T]he `plus' must be a deprivation of a liberty or property interest by the state that directly affects the plaintiffs' rights."Miller v. Cal. Dep't of Soc. Services, 355 F.3d 1172, 1178 (9th Cir.2004).
Plaintiffs sufficiently plead that there have been stigmatizing statements made by government officials, the accuracy of which is uncontested. When a statement "might

seriously damage [the Plaintiffs'] standing and associations in [their] community," it is sufficiently stigmatizing for the purpose of a stigma-plus analysis. Vanelli v. Reynolds Sch. Dist. No. 7, 667 F.2d 773, 777 n. 5 (9th Cir.1982). Plaintiffs all allege that they have been publicly associated with the No-Fly List. See Compl., docket no. 1, ¶¶ 23, 41, 54, 60, 62, 72, 81, 86, 89, 90, 94. As Plaintiffs point out, there can be little doubt that association with a government terrorist watch-list "might seriously damage [Plaintiffs'] standing and associations in [their] community," Vanelli, 667 F.2d at 777 n. 5, and Defendants have not argued otherwise.
However, Plaintiffs fail to satisfy the "plus" prong of the stigma-plus doctrine. 1130*1130The "plus" prong is "the denial of `some more tangible interest[ ] such as employment,' or the alteration of a right or status recognized by state law." Ulrich,308 F.3d at 982 (quoting Paul, 424 U.S. at 701, 711, 96 S.Ct. 1155). Plaintiffs argue that the "plus" factor need not amount to a constitutional violation. Indeed, courts have found the "plus" factor satisfied in a variety of contexts. In Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1316-17 (9th Cir.1989), the court found the "plus" factor satisfied when an individual's business was injured as a result of a stigmatizing statement by government officials. In Ulrich, the court found the "plus" factor satisfied when an employer refused to rehire an individual, even when the individual had no enforceable right, under either state or federal law, to reinstatement.308 F.3d at 982-83. In Wisconsin v. Constantineau, 400 U.S. 433, 435, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), the Supreme Court found a due process violation under the stigma-plus theory where the stigma resulted in the individual's inability to purchase alcohol. However, all the cases applying the stigma-plus doctrine are accompanied by some additional deprivation of liberty or property. Thus, the "plus" "must be a deprivation of liberty or property ... that directly affects the [Plaintiffs'] rights." Miller v. Cal. Dept. of Soc. Services, 355 F.3d 1172, 1178 (9th Cir.2004).
Plaintiffs, in the present matter, argue that their status has been altered because they are no longer able to travel like other airline passengers because of their alleged association with the No-Fly List. While Plaintiffs have a right to travel throughout the United States "uninhibited by statutes, rules, and regulations which unreasonably burden or restrict movement," Saenz v. Roe, 526 U.S. 489, 499, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999), it is also true that "burdens on a single mode of transportation do not implicate the right to interstate travel." Miller v. Reed, 176 F.3d 1202, 1205. Thus, Plaintiffs do not have a right to travel without any impediments

whatsoever. Indeed, Plaintiffs do not allege that they have suffered impediments different than the general traveling public.
Plaintiffs also argue that their status has been altered because they have been publicly associated with the No-Fly List in full view of co-workers and the general traveling public. See Compl., docket no. 1, ¶¶ 23, 41, 54, 60, 62, 72, 81, 86, 89, 90, 94. However, "injury to reputation alone is insufficient to establish a deprivation of a liberty interest protected by the Constitution." Ulrich, 308 F.3d at 982. Plaintiffs have not alleged any tangible harm to their personal or professional lives that is attributable to their association with the No-Fly List, and which would rise to the level of a Constitutional deprivation of a liberty right. Furthermore, Plaintiffs have not alleged any injury to a property interest as a result of the disclosure of allegedly stigmatizing statements. Plaintiffs have not plead any tangible harm that satisfies the "plus" prong. Therefore, Plaintiffs have failed to state a stigma-plus Fifth Amendment claim.
V. CONCLUSION
For the reasons stated in this Order, Defendants' Motion to Dismiss for lack of jurisdiction is GRANTED, except for the Fifth Amendment Due Process claim as it relates to the clearance procedures established by the TSA. However, Plaintiffs have failed to state a claim upon which relief can be granted as to that claim. As a result, Plaintiffs' Complaint must be dismissed, without prejudice, for the reasons set forth in this Order.
IT IS SO ORDERED.
[1] Although Plaintiffs' Complaint is broadly worded, Plaintiffs do not challenge the government's right to create or maintain either a No-Fly List or a Selectee List. Plaintiffs' counsel, at oral argument, stated the lawsuit does not in any way challenge the government's right to issue a Security Directive that says certain people should be on a No-Fly List, and in fact counsel said "we applaud that." Transcript, docket no. 29, 32:21-33:2.
[2] 49 U.S.C. § 46110(a) was previously codified at 49 U.S.C. § 1486(a).
[3] At oral argument, counsel for Plaintiffs conceded that the Security Directives would be an order "until such time comes about where we may have the opportunity to find out more about them specifically." Transcript, docket no. 29, 27:20-23.
[4] At oral argument, Plaintiffs' counsel conceded that to the extent the challenges are inescapably intertwined with the review of procedure and merits of the Security Directives, this Court would not have jurisdiction. Transcript, docket no. 29, 31:19.
[5] Defendants argue on the merits that "the procedural protections afforded by the Government fully conform with due process requirements." Reply Br., docket no. 22, p. 12. The Government notes that all

Plaintiffs have been offered an opportunity to establish they are not on the No-Fly List and do not pose a threat to civil aviation, through the procedures established. The Court will not consider the merits of the Defendants' arguments in connection with a motion to dismiss under Rule 12(b)(6) for failure to state a claim. Jacobson v. Hughes Aircraft Co., 105 F.3d 1288, 1292 (9th Cir.1997). Defendants' arguments on the merits can only be evaluated at summary judgment or trial.
	  

 
 Case: 2:04-cv-00763-TSZ As of: 06/25/2014 11:43 AM PDT 1 of 7
CLOSED
U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:04−cv−00763−TSZ

Green et al v. Transportation Security Administration et al Assigned to: Judge Thomas S. Zilly Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 04/06/2004 Date Terminated: 01/12/2005 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Michelle D Green

represented by Aaron H Caplan LOYOLA LAW SCHOOL LOS ANGELES 919 ALBANY STREET LOS ANGELES, CA 90015 213−736−1074 Email: aaron.caplan@lls.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine Yonsoo Kim AMERICAN CIVIL LIBERTIES UNION (NY) IMMIGRANTS' RIGHTS PROJECT 125 BROAD ST 18TH FLOOR NEW YORK, NY 10004−2400 212−549−2500 Email: ckim@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael E Kipling KIPLING LAW GROUP PLLC 3601 FREMONT AVENUE N STE 414 SEATTLE, WA 98103 206−545−0345 Fax: 206−545−0350 Email: kipling@kiplinglawgroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald T Shuford AMERICAN CIVIL LIBERTIES UNION (NY) IMMIGRANTS' RIGHTS PROJECT 125 BROAD ST 18TH FLOOR NEW YORK, NY 10004−2400 212−549−2500 Email: rshuford@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff John F Shaw

represented by Aaron H Caplan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:04-cv-00763-TSZ As of: 06/25/2014 11:43 AM PDT 2 of 7

Catherine Yonsoo Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael E Kipling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald T Shuford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff David C Fathi

represented by Aaron H Caplan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine Yonsoo Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael E Kipling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald T Shuford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Sarosh Syed

represented by Aaron H Caplan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine Yonsoo Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael E Kipling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald T Shuford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Mohamed Ibrahim

represented by Aaron H Caplan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:04-cv-00763-TSZ As of: 06/25/2014 11:43 AM PDT 3 of 7

Catherine Yonsoo Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael E Kipling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald T Shuford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff David Nelson

represented by Aaron H Caplan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine Yonsoo Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael E Kipling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald T Shuford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Alexander Hay on behalf of themselves and all otheres siilarly situated

represented by Aaron H Caplan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine Yonsoo Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael E Kipling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald T Shuford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Transportation Security Administration

represented by Brian C Kipnis US ATTORNEY'S OFFICE (SEA)

Case: 2:04-cv-00763-TSZ As of: 06/25/2014 11:43 AM PDT 4 of 7

700 STEWART ST STE 5220 SEATTLE, WA 98101−1271 206−553−7970 Email: Brian.Kipnis@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Diane Kelleher US DEPARTMENT OF JUSTICE (CIVIL − BOX 883) PO BOX 883 WASHINGTON, DC 20044 202−514−4775 Email: diane.kelleher@usdoj.gov ATTORNEY TO BE NOTICED

Joseph William LoBue US DEPARTMENT OF JUSTICE (CIVIL − 20 MASS) CIVIL DIVISION FEDERAL PROGRAMS 20 MASSACHUSETTS AVE NW STE 7300 WASHINGTON, DC 20530 202−514−4640 Fax: 202−616−8470 Email: joseph.lobue@usdoj.gov ATTORNEY TO BE NOTICED

Defendant David M Stone

represented by Brian C Kipnis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Diane Kelleher (See above for address) ATTORNEY TO BE NOTICED

Joseph William LoBue (See above for address) ATTORNEY TO BE NOTICED

Defendant Department of Homeland Security

represented by Diane Kelleher (See above for address) ATTORNEY TO BE NOTICED

Joseph William LoBue (See above for address) ATTORNEY TO BE NOTICED

Defendant Tom Ridge

represented by Brian C Kipnis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Diane Kelleher (See above for address) ATTORNEY TO BE NOTICED

Case: 2:04-cv-00763-TSZ As of: 06/25/2014 11:43 AM PDT 5 of 7
Joseph William LoBue (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/06/2004
04/13/2004 04/16/2004 04/16/2004 04/16/2004 04/16/2004 04/16/2004
04/20/2004
04/20/2004
05/06/2004 05/06/2004 05/10/2004 05/11/2004 05/18/2004
05/21/2004

# Docket Text
1 COMPLAINT against defendant(s) Department of Homeland Security, Tom Ridge, David M Stone, Transportation Security Administration (Summons(es) issued) (Receipt # 408680) , filed by David C Fathi, Michelle D Green, Alexander Hay, Mohamed Ibrahim, David Nelson, John F Shaw, Sarosh Syed. (Attachments: # 1 Civil Cover Sheet)(PM, ) (Entered: 04/07/2004)
2 ORDER REGARDING INITIAL DISCLOSURES, JOINT STATUS REPORT AND EARLY SETTLEMENT Joint Status Report due by 5/25/2004. by Judge Thomas S. Zilly. (CC, ) (Entered: 04/13/2004)
3 SERVICE OF SUMMONS and Complaint returned executed upon defendant Transportation Security Administration on 4/6/2004. (Kipling, Michael) (Entered: 04/16/2004)
4 SERVICE OF SUMMONS and Complaint returned executed upon defendant David M Stone on 4/6/2004. (Kipling, Michael) (Entered: 04/16/2004)
5 SERVICE OF SUMMONS and Complaint returned executed upon defendant Department of Homeland Security on 4/6/2004. (Kipling, Michael) (Entered: 04/16/2004)
6 SERVICE OF SUMMONS and Complaint returned executed upon defendant Tom Ridge on 4/6/2004. (Kipling, Michael) (Entered: 04/16/2004)
7 ACKNOWLEDGEMENT OF SERVICE of summons and complaint via Certified Mail on All Defendants by Plaintiffs David C Fathi, Michelle D Green, Alexander Hay, Mohamed Ibrahim, David Nelson, John F Shaw, Sarosh Syed on 04/06/2004 (Kipling, Michael) (Entered: 04/16/2004)
8 APPLICATION by Plaintiffs David C Fathi, Michelle D Green, Alexander Hay, Mohamed Ibrahim, David Nelson, John F Shaw, Sarosh Syed AND ORDER admitting Catherine Yonsoo Kim for Alexander Hay; Mohamed Ibrahim; David Nelson; John F Shaw; Sarosh Syed; David C Fathi and Michelle D Green pro hac vice. Receipt # 315676. (CL, ) (Entered: 04/21/2004)
9 APPLICATION by Plaintiffs David C Fathi, Michelle D Green, Alexander Hay, Mohamed Ibrahim, David Nelson, John F Shaw, Sarosh Syed AND ORDER admitting Reginald T Shuford for Alexander Hay; Mohamed Ibrahim; David Nelson; John F Shaw; Sarosh Syed; David C Fathi and Michelle D Green pro hac vice. Receipt # 315677. (CL, ) (Entered: 04/21/2004)
10 MOTION to Withdraw as Attorney by Plaintiffs David C Fathi, Michelle D Green, Alexander Hay, Mohamed Ibrahim, David Nelson, John F Shaw, Sarosh Syed. Noting Date 5/17/2004. (Kipling, Michael) (Entered: 05/06/2004)
11 NOTICE of Appearance by attorney Joseph William LoBue on behalf of Defendants Department of Homeland Security, Tom Ridge, David M Stone, Transportation Security Administration (LoBue, Joseph) (Entered: 05/06/2004)
Set/Reset Deadlines: The deadline for filing the Joint Status Report is extended to June 30, 2004.(CC) (Entered: 05/10/2004)
12 STIPULATION of parties AND PROPOSED ORDER. (Kipling, Michael) (Entered: 05/11/2004)
13 STIPULATION AND ORDER re 12 Stipulation: Defendants to file Motion to dismiss by 6/7/04; Plaintiff's shall file opposition by 6/30/04; Defendants to file their reply by 7/15/04; Motion to Dismiss shall be noted for 7/16/04 by Judge Thomas S. Zilly. (LS, ) (Entered: 05/20/2004)
14 ORDER granting 10 Motion to Withdraw Jayashri Srikantiah as Attorney for pltfs by Judge Thomas S. Zilly.(CL, ) (Entered: 05/24/2004)

Case: 2:04-cv-00763-TSZ As of: 06/25/2014 11:43 AM PDT 6 of 7

06/07/2004 06/07/2004 06/07/2004 06/30/2004 06/30/2004 07/07/2004 07/07/2004 07/22/2004 07/27/2004
07/27/2004 10/08/2004 10/29/2004 11/02/2004 11/02/2004 11/04/2004

15 MOTION to Dismiss by Defendants Department of Homeland Security, Tom Ridge, David M Stone, Transportation Security Administration. Noting Date 7/16/2004. (Attachments: # 1 Proposed Order)(Kelleher, Diane) (Entered: 06/07/2004)
16 Exhibit A − DECLARATION of Lee S. Longmire filed by Defendants Department of Homeland Security, Tom Ridge, David M Stone, Transportation Security Administration re 15 MOTION to Dismiss (Kelleher, Diane) Modified text on 6/8/2004 (AF, ). (Entered: 06/07/2004)
17 EXHIBIT B (Chowdhury v. Northwest opinion) filed in support of 15 MOTION to Dismiss by Defendants Department of Homeland Security, Tom Ridge, David M Stone, Transportation Security Administration. (Kelleher, Diane) (Entered: 06/07/2004)
18 RESPONSE, by Plaintiffs David C Fathi, Michelle D Green, Alexander Hay, Mohamed Ibrahim, David Nelson, John F Shaw, Sarosh Syed, to 15 MOTION to Dismiss , Oral Argument Requested (Kipling, Michael) Modified on 7/1/2004 to edit docket text (ECS, ). (Entered: 06/30/2004)
19 DECLARATION of Reginald T. Shuford re 18 Response to Motion to Dismiss by Plaintiffs David C Fathi, Michelle D Green, Alexander Hay, Mohamed Ibrahim, David Nelson, John F Shaw, Sarosh Syed. (Kipling, Michael) (Entered: 06/30/2004)
20 STIPULATION of parties and Proposed Order Modifying Briefing Schedule. (LoBue, Joseph) (Entered: 07/07/2004)
21 STIPULATON AND ORDER by Judge Thomas S. Zilly. Dfts' MOTION to Dismiss (Dkt. #15) is re−noted for 7/23/04. Dfts' reply due 7/22/04. (CL, ) (Entered: 07/08/2004)
22 REPLY, filed by Defendants Department of Homeland Security, Tom Ridge, David M Stone, Transportation Security Administration, TO RESPONSE to 15 MOTION to Dismiss (LoBue, Joseph) (Entered: 07/22/2004)
23 The following MINUTE ORDER is made by direction of the Court, the Honorable Thomas S. Zilly, U.S. District Judge: It is ORDERED that counsel show cause by AUGUST 20, 2004 why this action should not be dismissed for failing to comply with Order requiring Status Report signed April 13, 2004 and due May 25, 2004. The parties did request and were granted one extension. The filing date was extended to June 30, 2004. Absent a timely response to this Order, the action SHALL BE DISMISSED without prejudice. (CC, ) (Entered: 07/27/2004)
24 MINUTE ORDER − The Court vacates the minute order, docket no. 23, signed July 27,2004. Pursuant to the stipulation and order signed May 18, 2004, the Court directs counsel to provide a Joint Status Report within thirty days after the Court's decision on the defendnats' motion to dismiss. (CC, ) (Entered: 07/27/2004)
Set/Reset Motion and RRDeadlines/Hearings re 15 MOTION to Dismiss: Motion Hearing set for 11/4/2004 09:00 AM before Hon. Thomas S. Zilly. (CC, ) (Entered: 10/08/2004)
25 MINUTE ORDER − See attached minute order re oral argument/in camera/ex parte review.(CH) (Entered: 10/29/2004)
26 NOTICE by Defendants Transportation Security Administration, David M Stone, Department of Homeland Security, Tom Ridge of Filing Expedited No Fly List and Selectee List Clearance Procedures (Attachments: # 1 Exhibit A−F)(LoBue, Joseph) (Entered: 11/02/2004)
27 NOTICE by Defendants Transportation Security Administration, David M Stone, Department of Homeland Security, Tom Ridge of Submission of Documents for In Camera and Ex Parte Review (LoBue, Joseph) (Entered: 11/02/2004)
28 MINUTE ENTRY for proceedings held before Judge Thomas S. Zilly − Dep Clerk: KC; Pla Counsel: Reginald Shuford; Def Counsel: Joseph LoBue; CR: Susan Zielie; In Court Hearing held on 11/4/2004.The Court hears argument from counsel on the motion to dismiss, docket no. 15. The Court takes the matter under

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advisement.(CC) (Entered: 11/05/2004)
29 TRANSCRIPT of Proceedings held on 11/4/04 Motion Hearing before Judge Thomas S Zilly. Court Reporter: Susan Zielie. (SA, ) (Entered: 12/10/2004)
30 ORDER granting 15 Dfts' Motion to Dismiss by Judge Thomas S. Zilly.(CL, ) (Entered: 01/10/2005)
31 JUDGMENT BY COURT − Plaintiffs' complaint is dismissed, without prejudice, for the reasons set forth in the Order (MD ) (Entered: 01/13/2005)