Case3:06-cv-00545-WHA Document1 Filed01/27/06 Page1 of 21

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1 JAMES McMANIS (40958) MARWA ELZANKALY (206658)

2 McMANIS, FAULKNER & MORGAN

3

A Professional Corporation 50 W. San Fernando, 10th Floor

4
5
6

San Jose, CA 95113 Telephone: (408) 279-8700 Facsimile: (408) 279-3244

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UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12 13

c c!l 6. RAHINAH IBRAHIM, an individual,

14

Plaintiff,

COMPLAINT FOR:

15 v.

16 DEPARTMENT OF HOMELAND
17 SECURITY; MICHAEL CHERTOFF, in his

official capacity as the Secretary of the 18 Department of Homeland Security; TOM

19 RIDGE, in his official capacity as the former Secretary of the Department of Homeland

20 Security; TRANSPORTATION SECURITY
ADMINISTRATION; KIP HAWLEY; in his 21 official capacity as Administrator of the

22

Transportation Security Administration; DAVID M. STONE, in his official capacity

23 as Acting Administrator of the Transportation Security Administration;

24 TERRORIST SCREENING CENTER;

DONNA A. BUCELLA, in her official 25 capacity as Director of the Terrorist

26

Screening Center; NORM MINETA, in his official capacity as Secretary of

27 Transportation; FEDERAL AVIATION ADMINISTRATION; MARION C.

28 BLAKEY, in her official capacity as

1) 42 U.S.C. §1983 - Violation of Due Process;
· 2) 42 U.S.C. §1983- Violation of Equal Protection
3) 42 U.S.C. §1983- Violation of Fourth Amendment
4) 42 U.S.C. §1983 - Violation of First Amendment Right to Freedom of Religion
5) 42 U.S.C. §1983- Violation of First Amendment Right to Freedom of Association
6) CA Civ. Code §52.1-Interference With Exercise of Civil Rights
7) CA Civ. Code §52.3-Deprivation of Civil Rights
8) False Imprisonment 9) Intentional Infliction of Emotional
Distress 10) Negligent Infliction of Emotional
Distress 11) Declaratory and Injunctive Relief

Complaint

Case3:06-cv-00545-WHA Document1 Filed01/27/06 Page2 of 21

1 Administrator of the Federal Aviation
Administration; FEDERAL BUREAU OF
2 INVESTIGATION; ROBERT MUELLER,
3 in his official capacity as Director of the Federal Bureau of Investigation; SAN
4 FRANCISCO AIRPORT; CITY OF SAN FRANCISCO; COUNTY OF SAN
5 FRANCISCO; COUNTY OF SAN
MATEO; SAN FRANCISCO POLICE 6 DEPARTMENT; UAL CORPORATION;
7 UNITED AIRLINES; DAYID NEVINS, an individual; RICHARD PATE, an individual;
8 JOHN BONDANELLA, an individual; JOHN CUNNINGHAM, an individual;
9 ELIZABETH MARON, an individual; and
10 DOES 1 through 100, inclusive.

11

Defendants.

12 13 14 Plaintiffhereby alleges as follows:

15

INTRODUCTORY STATEMENT

16 1. The above-entitled action is brought under 42 U.S.C. section 1983, and California

17 Civil Code sections 52.1 and 52.3, on the grounds that defendants, among other things, violated

18 the federal and state constitutional rights of plaintiff, granted to her under the First, Fourth, Fifth

19 and Fourteenth Amendments to the United States Constitution, and Article I, Sections 3, 4, 7, 13

20 and 15 of the California Constitution.

21

JURISDICTION AND VENUE

22
2. This case arises under the United States Constitution and the laws of the United

23 States. This Court has jurisdiction over this action pursuant to Article III of the United States

24 Constitution, 5 U.S.C. Sec. 552a, and 28 U.S.C. sections 1331, 1343 and 1361. Venue is proper

25 in this district, pursuant to 28 U.S.C. section 139l(e), because defendants include officers and

26 employees of the United States and the acts and conduct complained of herein occurred in this

27 judicial district.

28

2 Complaint

Case3:06-cv-00545-WHA Document1 Filed01/27/06 Page3 of 21

INTRADISTRICT ASSIGNMENT

2

3. Assignment of this action to the San Francisco Division is proper under Civil

3 Local Rule 3-2(d), because a substantial part of the events giving rise to the claims alleged herein

4 occurred in the County of San Mateo.

5

PARTIES

6

4. Plaintiff, RAHINAH IBRAHIM, ("IBRAHIM"), is an individual, who obtained

7 her Doctorate Degree at Stanford University, while in the United States on a student visa, and

8 ct'.irrently resides in the country of Malaysia. IBRAHIM has no criminal record and no links to

9 terrorist activity.

10

5. On information and belief, defendant, DEPARTMENT OF HOMELAND

11 SECURITY ("DHS"), is a department of the United States Government, created on October 8,

12 2001, to develop and coordinate the implementation of a comprehensive national strategy to

13 secure the United States from terrorist threats or attacks. It is the department ultimately

14 responsible for the Transportation Security Administration and, in tum, the No-Fly List.

15

6. On information and belief, defendant, MICHAEL CHERTOFF ("CHERTOFF"),

16 is the current Secretary and head of the Department of Homeland Security. He is sued here in

17 his official capacity.

18

7. On information and belief, defendant, TOM RIDGE ("RIDGE"), is the former

19 Secretary and head of the Department of Homeland Security. He is sued here in his official

20 capacity.

21

8. On information and belief, defendant, TRANSPORTATION SECURITY

22 ADMINISTRATION ("TSA"), is a department of the United States Government and a sub-

23 agency of the DHS. The role of the TSA is to implement the provisions of the Aviation and

24 Transportation Security Act (P.L. 107-71), signed by President George W. Bush on November

25 19, 2001. The authority to regulate airport security was transferred to the TSA from the Federal

26 Aviation Administration on November 19, 2001, when the TSA was established.

27

28

3 Complaint

Case3:06-cv-00545-WHA Document1 Filed01/27/06 Page4 of 21

9. On information and belief, defendant, KIP HAWLEY ("HAWLEY"), is the

2 Administrator of the TSA, and on information and belief, is responsible for maintaining and

3 managing the No-Fly List. He is sued here in his official capacity.

4

10. On information and belief, defendant, DAVID M. STONE ("STONE"), was the

5 Acting Administrator of the TSA at the time of the incident, and on information and belief, was

6 responsible for maintaining and managing the No-Fly List. He is sued here in his official

7 capacity.

8

11. On information and belief, defendant, TERRORIST SCREENING CENTER

9 ("TSC"), is a department of the United States Government. Its mission is to maintain a list of

10 "Terrorist Identities Information" for agencies of the United States Government, including the

11 TSA. The TSC determines who is on the list that the TSA uses to compile the No-Fly list.

12

12. On information and belief, defendant, DONNA A. BUCELLA ("BUCELLA"), is

13 the Director of the TSC, and is being sued in her official capacity as such.

14

13. On information and belief, defendant, NORM MINETA, is the Secretary of

15 Transportation and is being sued in his official capacity as such.

16

14. On information and belief, defendant, FEDERAL AVIATION

17 ADMINISTRATION ("FAA"), is an independent federal agency that regulates air travel.

18

15. On information and belief, defendant, MARION C. BLAKEY, is the

19 Administrator of the FAA and is being sued in her official capacity as such.

20

16. On information and belief, defendant, FEDERAL BUREAU OF

21 INVESTIGATION ("FBI"), is a department of the United States Government, and maintains a

22 "No-Fly watchlist" and transmits this list to the Transportation Security Administration. The

23 airlines are required to check their passenger lists against this No-Fly watchlist.

24

17. On information and belief, defendant, ROBERT MUELLER, is the director of the

25 FBI, and is being sued in his official capacity as such.

26

18. On information and belief, defendant, SAN FRANCISCO INTERNATIONAL

27 AIRPORT ("SFO"), is an international airport located in San Mateo County.

28

4 Complaint

Case3:06-cv-00545-WHA Document1 Filed01/27/06 Page5 of 21

1

19. On information and belief, defendant, CITY OF SAN FRANCISCO ("CITY OF

2 SF"), is a municipal entity, which oversees the San Francisco Police Department.

3

20. On information and belief, defendant, COUNTY OF SAN FRANCISCO ("SF

4 COUNTY"), is a municipal entity, which also oversees the San Francisco Police Department.

5

21. On information and belief, defendant, COUNTY OF SAN MATEO ("SM

6 COUNTY"), is a municipal entity, where SFO is located.

7

22. On information and belief, defendant, SAN FRANCISCO POLICE

8 DEPARTMENT ("SFPD"), is a police department which has jurisdiction over events occurring

9 at SFO.

10

23. On information and belief, defendant, UAL CORPORATION ("UAL"), is the

11 holding company for United Airlines.

12

24. On information and belief, defendant, UNITED AIRLINES, ("UNITED"), is a

13 Delaware corporation with its principal place of business in Chicago, Illinois.

14

25. On information and belief, defendant, DAVID NEVINS ("NEVINS"), is an

15 employee of UNITED, who works at the UNITED ticket counter at SFO as a Customer Service

16 Supervisor.

17

26. On information and belief, defendant, RICHARD PATE ("PATE"), is a Police

18 Sergeant for SFPD.

19

27. On information and belief, defendant, J. CUNNINGHAM ("CUNNINGHAM"),

20 badge number 236, is a police officer of the SFPD.

21

28. On information and belief, defendant, ELIZABETH MARON ("MARON"), is a

22 police officer of the SFPD.

23

29. On information and belief, defendant, JOHN BONDANELLA, is an employee of

24 the TSIS, located in Washington, D.C.

25

30. The true names or capacities, whether individual, corporate, associate or

26 otherwise of defendants, DOES 1 through 100, inclusive, are unknown to plaintiff, who therefore

27 sues said defendants by such fictitious names. Plaintiff prays leave to amend the complaint to

28 show the true names and capacities of defendants when the same have been ascertained.

5 Complaint

Case3:06-cv-00545-WHA Document1 Filed01/27/06 Page6 of 21

1

GENERAL ALLEGATIONS

2

31. Plaintiff brings this lawsuit to challenge defendants' administration, management

3 and implementation of the "No-Fly List", a list circulated to commercial airlines and security

4 personnel with instructions to detain and question any passenger whose name matches or is

5 similar to one on the No-Fly List.

6

32. Defendants began implementing the No-Fly List in November, 2001. Since then,

7 it has resulted in hundreds, if not thousands, of innocent passengers being routinely stopped,

8 questioned, searched, and sometimes physically arrested, as in this case. Defendants do not

9 inform individuals that they have been placed on the No-Fly List or why they are on the list.

10 Moreover, individuals whom defendants determine are not security threats continue to be

11 identified on the No-Fly List. Passengers, therefore, have no meaningful opportunity to

12 challenge their identification on the No-Fly List.

13

33. For several years before the terrorist attacks of September 11, 2001, the U.S.

14 Government issued directives identifying persons who were deemed to pose a threat to civil

15 aviation. In November, 2001, the TSA was formed and assumed responsibility for compiling

16 and administering these directives, with the assistance of the TSC. Today, defendants maintain

17 at least two watch lists of individuals perceived to be threats to aviation security. The "no-fly"

18 list contains names of people which airlines are prohibited from transporting. The "selectee" list

19 contains names of passengers who must go through additional security screening before boarding

20 an aircraft. These two lists collectively are referred to as the "No-Fly List." On information and

21 belief, the No-Fly List contains thousands of names, primarily names of individuals of Muslim or

22 Middle Eastern descent.

23

34. Until November, 2002, defendants denied the existence of the No-Fly List. Until

24 today, defendants have refused to disclose important information regarding the No-Fly List,

25 including the criteria for placing names on or removing names from the No-Fly List, procedures

26 for amending information on the List such as when it is determined that an individual is not a

27 security threat, or rules for maintaining or managing the List. Because defendants have refused

28 to provide any of this information, defendants may be using race, religion, ethnicity, national

6 Complaint

Case3:06-cv-00545-WHA Document1 Filed01/27/06 Page7 of 21

1 origin, or the exercise of protected First Amendment rights as factors m maintenance and

2 implementation of the No-Fly List.

3

35. On information and belief, defendants occasionally disseminate updated versions

4 of the No-Fly List as attachments to security directives and emergency amendments to

5 commercial airlines in the United States. The 15 domestic airlines have almost half a million

6 employees and, on information and belief, a substantial percentage of these employees have

7 access to the No-Fly List. On information and belief, these security directives and the No-Fly

8 List are also provided to customs and immigration agents, airport security, and law enforcement

9 agencies. Moreover, information from the No-Fly List is inputted into other security databases

10 such as the FBI and the FAA. On information and belief, defendants, TSA and DHS, and the

11 heads of their departments, instruct recipients of the No-Fly List to detain and interrogate any

12 individual who checks in for a flight whose name is similar or identical to a name on the No-Fly

13 List. Even if the passenger's actual identity is verified, a boarding pass is issued which is

14 stamped with a mark to indicate the passenger must be subjected to enhanced screening, also

15 referred to as "secondary screening."

16

36. Innocent passengers subjected to this treatment are stigmatized, humiliated, and

17 subjected to interrogations, delays, enhanced searches, detentions, travel impediments, and

18 sometimes actual physical arrest without a warrant or any probable cause. This treatment is

19 completely unexpected as they have no notice that they have been placed on the No-Fly List.

20

37. Plaintiff, IBRAHIM, was subjected to this humiliating treatment on January 2,

21 2005, at the SFO, while traveling to Malaysia, through an initial stop in Hawaii.

22

38. IBRAHIM is a citizen of Malaysia. She is a Muslim woman who is clearly

23 identifiable as Muslim as she wears a head scarf, also known as a "hijab." IBRAHIM has no

24 criminal record and no ties whatsoever to any terrorist activity. At the time of the incident,

25 IBRAHIM was a student at Stanford University, studying to obtain her Doctorate Degree (PhD),

26 and lawfully in the United States on a student visa. IBRAHIM's student visa was valid from

27 September 26, 2001 to January 11, 2007. She was preparing her thesis on affordable housing

28 and on January 2, 2005, IBRAHIM was scheduled to fly to Kuala Lumpur, Malaysia, with a

7 Complaint

Case3:06-cv-00545-WHA Document1 Filed01/27/06 Page8 of 21

changing flight in Hawaii, to present her research findings at a conference sponsored by Stanford

2 University. She was scheduled to return to Stanford in March, 2005, to submit her dissertation

3 and complete her PhD.

4

39. Prior to her trip, in October, 2004, IBRAHIM had a hysterectomy surgery at

5 Stanford University Medical Hospital, with an extremely invasive abdominal approach.

6 IBRAHIM suffered severe complications from her surgery which extended her recovery period

7 for months. IBRAHIM also suffered back and abdominal pain from her surgery and was

8 regularly taking medication for these complications.

9

40. On January 2, 2005, at approximately 7:00 a.m., IBRAHIM arrived at SFO with

10 her fourteen-year old daughter. IBRAHIM and her daughter were scheduled to leave on a United

11 Airlines flight from SFO, at 9:00 a.m. IBRAHIM and her daughter, escorted by IBRAHIM's

12 friend, went to the ticket counter to obtain their boarding passes and check in their bags.

13 IBRAHIM informed UNITED of her medical complications and requested wheelchair

14 transportation to the airline gate.

15

41. At that time, defendant, NEVINS, approached IBRAHIM and asked to see her

16 tickets. NEVINS called SFPD and informed them that IBRAHIM was on the No-Fly List. At

17 the request of NEVINS, defendants, CUNNINGHAM and PATE, of SFPD, arrived at the airport.

18 On information and belief, PATE checked the No-Fly List for IBRAHIM's name. He called

19 defendant, BONDANELLA, of the TSIS in Washington, D.C. Defendant, BONDANELLA, told

20 defendant, PATE, to not allow IBRAHIM on the flight, to contact the FBI, and to detain

21 IBRAHIM for questioning. A SFPD officer, whose name is not known to plaintiff, also arrived

22 at the scene.

23

42. Meanwhile, IBRAHIM stood waiting for an hour and a half, with no wheelchair,

24 while she suffered from back and abdominal pain. IBRAHIM's friend informed the SFPD

25 officers several times of IBRAHIM's medical condition.

26

43. At 8:45 a.m., fifteen minutes before IBRAHIM's flight was scheduled to leave,

27 defendant, CUNNINGHAM, told IBRAHIM that she was being arrested. IBRAHIM was

28 handcuffed by CUNNINGHAM, with her hands placed behind her back, in the middle of the

8 Complaint

Case3:06-cv-00545-WHA Document1 Filed01/27/06 Page9 of 21

1 airport, in front of her fourteen-year old daughter, and everyone else at SFO. IBRAHIM was not

2 informed as to why she was being arrested. Instead, she was taken to the SFPD police station,

3 escorted by three male officers, while she sat in the back seat, rubbing her abdominal muscles

4 from the pain.

5

44. Upon arriving at the police station, IBRAHIM was searched by defendant,

6 MARON. During this search, MARON attempted to remove IBRAHIM's hijab and searched

7 under her hijab in public view, before the other male officers. On information and belief, the

8 pdlice officers also informed the FBI of IBRAHIM's detention.

9

45. IBRAHIM was placed in a holding cell at the SFPD police station for

10 approximately two hours while she continued to suffer from severe back and abdominal pain.

11 IBRAHIM was not given her medication when she asked for it to relieve her pain. Eventually,

12 the paramedics were called as a result of IBRAHIM's medical condition. IBRAHIM was finally

13 given her medication after the paramedics left.

14

46. On information and belief, the FBI finally requested SFPD to release IBRAHIM

15 at approximately 11: 15 a.m., over two hours after her flight had left. IBRAHIM was given no

16 information as to why her name was on the No-Fly List.

17

47. Defendants represented to plaintiff that her name had been removed from

18 the No-Fly List. The following day, on January 3, 2006, IBRAHIM discovered that she was still

19 on the No-Fly List when she attempted to fly again. After some effort, IBRAHIM was finally

20 allowed to fly to Kuala Lumpur, Malaysia. At SFO, however, and at every stop over, IBRAHIM

21 was publicly subjected to enhanced searches before boarding any flights.

22

48. On July 1, 2005, plaintiff filed a claim with the City and County of San Francisco

23 and a claim with the City and County of San Mateo for her damages suffered as a result o

24 defendants' conduct. On August 2, 2005, the County of San Mateo issued a letter rejecting

25 plaintiffs claim. On September 8, 2005, the City and County of San Francisco issued a letter,

26 also rejecting plaintiff's claim.

27

28

9 Complaint

Case3:06-cv-00545-WHA Document1 Filed01/27/06 Page10 of 21

FIRST CAUSE OF ACTION

2

(42 U.S.C. Section 1983 Violations of Plaintiffs' Rights Under the United States

3

Constitution.)

4

49. Plaintiff re-alleges paragraphs 1 through 48 above and incorporates them herein

5 by reference.

6

50. In doing the acts complained of herein, defendants deprived plaintiff of her rights

7 under the United States Constitution as set forth under the First, Fourth, Fifth and Fourteenth

8 Amendments to the United States Constitution;

9

51. Defendants, in committing the acts herein alleged, were acting under color of state

10 law.

11

52. Defendants were acting in accordance with their custom, policy and/or practice in

12 violating plaintiffs constitutional rights as set forth above.

13

53. As a direct and proximate result of defendants' wrongful acts alleged herein,

14 plaintiff suffered severe damages, including humiliation and damage to her reputation, physical

15 pain, emotional distress, and deprivation of her constitutional rights, according to proof at the

16 time of trial.

17

54. Defendants committed the actions alleged herein maliciously, fraudulently,

18 oppressively and with the wrongful intention of injuring plaintiff. Defendants acted with an

19 improper motive amounting to malice and with conscious disregard of plaintiff's rights. As

20 such, plaintiff is entitled to recover punitive damages from defendants in an amount according to

21 proof at the time of trial.

22

SECOND CAUSE OF ACTION

23

(42 U.S.C. Section 1983 Violations of Plaintiff's Right to Due Process.)

24

55. Plaintiff re-alleges paragraphs 1 through 54 above and incorporates them herein

25 by reference.

26

56. In doing the acts complained of herein, defendants deprived plaintiff of her right

27 to Procedural and Substantive Due Process under the United States Constitution as set forth

28 under the Fifth and Fourteenth Amendments to the United States Constitution;

IO Complaint

Case3:06-cv-00545-WHA Document1 Filed01/27/06 Page11 of 21

1

57. The No-Fly List and the placement of IBRAHIM on this list is unconstitutional in

2 that it violates the due process protections guaranteed under the Fifth and Fourteenth

3 Amendments of the United States Constitution and Article I, Sections 7 and 15 of the California

4 Constitution. On information and belief, the placement of names on the No-Fly List is done in

5 an arbitrary and capricious manner and without any factual findings or rational basis.

6

58. Defendants' actions in administering and maintaining the No-Fly List deprived

7 plaintiff of liberty and property interests protected by the Fifth Amendment. Defendants are

8 grossly negligent, reckless, and/or deliberately indifferent to the risk that the deprivations these

9 actions cause. The deprivations are without due process of law because plaintiff was not

10 informed of her placement on the No-Fly List or given any opportunity to contest such

11 placement. Also, defendants have failed to provide constitutionally adequate mechanisms for

12 plaintiff to avoid being subjected to the stigma, interrogations, delays, enhanced searches,

13 detentions, and/or other travel impediments associated with having a name identical or similar to

14 a name on the No-Fly List.

15

59. Defendants, in committing the acts herein alleged, were acting under color of state

16 law.

17

60. Defendants were acting in accordance with their custom, policy and/or practice in

18 violating plaintiff's constitutional rights as set forth above.

19

61. As a direct and proximate result of defendants' wrongful acts alleged herein,

20 plaintiff suffered severe damages, including humiliation and damage to her reputation, physical

21 pain, emotional distress, and deprivation of her constitutional rights, according to proof at the

22 time of trial.

23

62. Defendants committed the actions alleged herein maliciously, fraudulently,

24 oppressively and with the wrongful intention of injuring plaintiff. Defendants acted with an

25 improper motive amounting to malice and with conscious disregard of plaintiff's rights. As

26 such, plaintiff is entitled to recover punitive damages from defendants in an amount according to

27 proof at the time of trial.

28

11 Complaint

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1

THIRD CAUSE OF ACTION

2

(42 U.S.C. Section 1983 Violations of Plaintiff's Right to Equal Protection)

3

63. Plaintiff re-alleges paragraphs 1 through 62 above and incorporates them herein

4 by reference.

5

64. In doing the acts complained of herein, defendants deprived plaintiff of her right

6 to Equal Protection under the United States Constitution as set forth under the Fourteenth

7 Amendment to the United States Constitution;

8

65. Defendants placed IBRAHIM on the No-Fly List in an arbitrary and capricious

9 manner, and arrested her for several hours. On information and belief, defendants acted in a

10 discriminatory manner, with the intent to discriminate, in that IBRAHIM was placed on the No-

11 Fly List and arrested based on her religious beliefs and her national origin as a citizen of

12 Malaysia.

13

66. Defendants, in committing the acts herein alleged, were acting under color of state

14 law.

15

67. Defendants were acting in accordance with their custom, policy and/or practice in

16 violating plaintiff's constitutional rights as set forth above.

17

68. As a direct and proximate result of defendants' wrongful acts alleged herein,

18 plaintiff suffered severe damages, including humiliation and damage to her reputation, physical

19 pain, emotional distress, and deprivation of her constitutional rights, according to proof at the

20 time of trial.

21

69. Defendants committed the actions alleged herein maliciously, fraudulently,

22 oppressively and with the wrongful intention of injuring plaintiff. Defendants acted with an

23 improper motive amounting to malice and with conscious disregard of plaintiff's rights. As

24 such, plaintiff is entitled to recover punitive damages from defendants in an amount according to

25 proof at the time of trial.

26

27

28

12 Complaint

Case3:06-cv-00545-WHA Document1 Filed01/27/06 Page13 of 21

1

FOURTH CAUSE OF ACTION

2

(42 U.S.C. Section 1983 Violation of Plaintiff's Fourth Amendment Right Against

3

Unreasonable Search and Seizure)

4

70. Plaintiff re-alleges paragraphs 1 through 69 above and incorporates them herein

5 by reference.

6

71. In doing the acts complained of herein, defendants deprived plaintiff of her right

7 against unreasonable searches and seizures under the United States Constitution as set forth

8 urider the Fourth Amendment to the United States Constitution;

9

72. Defendants placed IBRAHIM on the No-Fly List, arrested her, and searched her

10 without any probably cause or an arrest or search warrant. As alleged above, it is common for

11 individuals who have no links to terrorist activity to be placed on the No-Fly List or to be

12 detained for having a name similar to a name on the No-Fly List and to be subjected to enhanced

13 searches without any cause.

14

73. Defendants, in committing the acts herein alleged, were acting under color of state

15 law.

16

74. Defendants were acting in accordance with their custom, policy and/or practice in

17 violating plaintiffs constitutional rights as set forth above.

18

75. As a direct and proximate result of defendants' wrongful acts alleged herein,

19 plaintiff suffered severe damages, including humiliation and damage to her reputation, physical

20 pain, emotional distress, and deprivation of her constitutional rights, according to proof at the

21 time of trial.

22

76. Defendants committed the actions alleged herein maliciously, fraudulently,

23 oppressively and with the wrongful intention of injuring plaintiff Defendants acted with an

24 improper motive amounting to malice and with conscious disregard of plaintiffs rights. As

25 such, plaintiff is entitled to recover punitive damages from defendants in an amount according to

26 proof at the time of trial.

27

28

13 Complaint

Case3:06-cv-00545-WHA Document1 Filed01/27/06 Page14 of 21

FIFTH CAUSE OF ACTION

2

(42 U.S.C. Section 1983 Violation of Plaintiff's Right to Freedom of Religion)

3

77. Plaintiff re-alleges paragraphs 1 through 76 above and incorporates them herein

4 by reference.

5

78. In doing the acts complained of herein, defendants deprived plaintiff of her

6 freedom of religion under the United States Constitution as set forth under the First Amendment

7 to the United States Constitution;

8

79. Plaintiff is an identifiable Muslim woman who wears the hijab. Defendants

9 violated plaintiff's freedom ofreligion in that, on information and belief, plaintiff, and other

10 individuals placed on the No-Fly List, are targeted based on their religious beliefs or appearance.

11

80. Defendants, in committing the acts herein alleged, were acting under color of state

12 law.

13

81. Defendants were acting in accordance with their custom, policy and/or practice in

14 violating plaintiff's constitutional rights as set forth above.

15

82. As a direct and proximate result of defendants' wrongful acts alleged herein,

16 plaintiff suffered severe damages, including humiliation and damage to her reputation, physical

17 pain, emotional distress, and deprivation ofher constitutional rights, according to proof at the

18 time of trial.

19

83. Defendants committed the actions alleged herein maliciously, fraudulently,

20 oppressively and with the wrongful intention of injuring plaintiff. Defendants acted with an

21 improper motive amounting to malice and with conscious disregard of plaintiff's rights. As

22 such, plaintiff is entitled to recover punitive damages from defendants in an amount according to

23 proof at the time of trial.

24

SIXTH CAUSE OF ACTION

25

(42 U.S.C. Section 1983 Violations of Plaintiffs' Right to Freedom of Association)

26

84. Plaintiff re-alleges paragraphs 1 through 83 above and incorporates them herein

27 by reference.

28

14 Complaint

Case3:06-cv-00545-WHA Document1 Filed01/27/06 Page15 of 21

85. In doing the acts complained of herein, defendants deprived plaintiff of her

2 freedom of association under the United States Constitution as set forth under the First

3 Amendment to the United States Constitution;

4

86. Plaintiff is an identifiable Muslim woman who wears the hijab. Defendants

5 violated plaintiff's freedom of association in that, on information and belief, plaintiff, and other

6 individuals placed on the No-Fly List, are targeted based on their association with the Muslim

7 community or the Islamic religion, and based on her national origin.

8

87. Defendants, in committing the acts herein alleged, were acting under color of state

9 law.

10

88. Defendants were acting in accordance with their custom, policy and/or practice in

11 violating plaintiff's constitutional rights as set forth above.

12

89. As a direct and proximate result of defendants' wrongful acts alleged herein,

13 plaintiff suffered severe damages, including humiliation and damage to her reputation, physical

14 pain, emotional distress, and deprivation of her constitutional rights, according to proof at the

15 time of trial.

16

90. Defendants committed the actions alleged herein malicio'usly, fraudulently,

17 oppressively and with the wrongful intention of injuring plaintiff. Defendants acted with an

18 improper motive amounting to malice and with conscious disregard of plaintiff's rights. As

19 such, plaintiff is entitled to recover punitive damages from defendants in an amount according to

20 proof at the time of trial.

21

SEVENTH CAUSE OF ACTION

22

(Interference With Exercise Of Civil Rights - California Civil Code Section 52.1)

23

91. Plaintiff realleges paragraphs 1 through 90 above and incorporates them herein by

24 reference.

25

92. Defendants placed plaintiff on the No-Fly List and on January 2, 2005,

26 defendants, police officers, arrested plaintiff without a warrant or other legal process.

27

93. Defendants made the arrest without probable cause to believe that plaintiff had

28 committed a crime.

15 Complaint

Case3:06-cv-00545-WHA Document1 Filed01/27/06 Page16 of 21

94. The arrest interfered with plaintiffs constitutional rights granted to her under the

2 First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution, and Article I,

3 Sections 3, 4, 7, 13 and 15 of the California Constitution.

4

95. On information and belief, the acts of the defendants herein alleged were done

5 with malice, fraud, and oppression, and In reckless disregard of plaintiffs constitutional rights.

6

96. As a proximate result of the acts of defendants herein alleged, plaintiff incurred

7 both economic and noneconomic damages.

8

97. Defendants committed the actions alleged herein maliciously, fraudulently,

9 oppressively and with the wrongful intention of injuring plaintiff Defendants acted with an

10 improper, evil motive amounting to malice and with conscious disregard of plaintiffs rights. As

11 such, plaintiff is entitled to recover punitive damages from defendants in an amount according to

12 proof at the time of trial.

13

EIGHTH CAUSE OF ACTION

14

(Deprivation of Civil Rights - California Civil Code Section 52.3]

15

98. Plaintiff realleges paragraphs 1 through 97 above and incorporates them herein by

16 reference.

17

99. On January 2, 2005, defendants, police officers, arrested plaintiff without a

18 warrant or other legal process.

19

100. Defendants made the arrest without probable cause to believe that plaintiff had

20 committed a crime.

21

101. The arrest deprived plaintiff of her constitutional rights granted to her under the

22 First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution, and Article I,

23 Sections 3, 4, 7, 13 and 15 of the California Constitution.

24

102. On information and belief, the acts of the defendants herein alleged were done

25 with malice, fraud, and oppression, and in reckless disregard of plaintiffs constitutional rights.

26

103. On information and belief, the acts of defendants herein alleged, were done

27 pursuant to a pattern and practice of depriving persons of rights, privileges, and immunities

28

16 Complaint

Case3:06-cv-00545-WHA Document1 Filed01/27/06 Page17 of 21

secured by the laws and Constitution of the State of California, and the laws and Constitution of

2 the United States.

3

104. As a proximate result of the acts of defendants herein alleged, plaintiff incurred

4 both economic and noneconomic damages.

5

105. Defendants committed the actions alleged herein maliciously, fraudulently,

6 oppressively and with the wrongful intention of injuring plaintiff. Defendants acted with an

7 improper, evil motive amounting to malice and with conscious disregard of plaintiffs rights. As

8 sJch, plaintiff is entitled to recover punitive damages from defendants in an amount according to

9 proof at the time of trial.

10

NINTH CAUSE OF ACTION

11

(False Imprisonment)

12

106. Plaintiff realleges paragraphs 1 through 105 above and incorporates them herein

13 by reference.

14

107. On January 2, 2005, in the city of San Francisco, defendants, police officers,

15 maliciously seized and arrested plaintiff, without a warrant, or other legal process.

16

108. Defendants made the arrest without probable cause to believe that plaintiff had

17 committed a crime.

18

109. Plaintiff was imprisoned at the San Francisco Airport police station for hours.

19

110. As a proximate result of the acts of defendants herein alleged, plaintiff incurred

20 both economic and noneconomic damages.

21

111. Defendants committed the actions alleged herein maliciously, fraudulently,

22 oppressively and with the wrongful intention of injuring plaintiff. Defendants acted with an

23 improper, evil motive amounting to malice and with conscious disregard of plaintiffs rights. As

24 such, plaintiff is entitled to recover punitive damages from defendants in an amount according to

25 proof at the time of trial.

26 \\\

27 \\\

28

17 Complaint

Case3:06-cv-00545-WHA Document1 Filed01/27/06 Page18 of 21

TENTH CAUSE OF ACTION

2

(Intentional Infliction of Emotional Distress)

3

112. Plaintiff realleges paragraphs 1 through 111 above and incorporates them herein

4 by reference.

5

113. On January 2, 2005, defendants, police officers, arrested plaintiff, knowing that

6 they lacked a warrant or other legal process. Defendants made the arrest, knowing that they

7 lacked probable cause to believe that plaintiff had committed a crime. Therefore, defendants

8 made the arrest with the intention of causing, or reckless disregard of the probability of causing,

9 emotional distress for plaintiff.

10

114. On information and belief, the acts of the defendants herein alleged were willful,

11 despicable, malicious, and oppressive.

12

115. As a proximate result of the acts of defendants herein alleged, plaintiff incurred

13 severe emotional distress and mental suffering. Plaintiff experienced extreme humiliation,

14 shame, and anger when:

15

a) Defendants, police officers, handcuffed plaintiff in front of her fourteen

16 year old daughter at the San Francisco Airport, on the morning of January 2, 2005;

17

b) A crowd of passengers gathered to watch defendants, police officers,

18 detain and arrest plaintiff, without a warrant or probable cause, at the San Francisco Airport on

19 the morning of January 2, 2005;

20

c) Defendants, police officers, forced plaintiff to miss her flight by detaining

21 and arresting her without a warrant or probable cause;

22

d) Defendant, MARON, removed part of plaintiffs hijab and loosened

23 plaintiffs hair;

24

e) Defendants, police officers, caused plaintiff to experience abdominal

25 pain and high blood pressure by incarcerating plaintiff in a detention area without access to her

26 medications;

27

f) Defendants, police officers, forced plaintiff to urinate in a public area

28 while in the holding cell.

18 Complaint

Case3:06-cv-00545-WHA Document1 Filed01/27/06 Page19 of 21

g) Defendants represented to plaintiff that her name had been removed from

2 the No-Fly List, but plaintiff later discovered that defendants had in fact made no effort to

3 remove plaintiff from the No-Fly List.

4

ELEVENTH CAUSE OF ACTION

5

(Negligent Infliction of Emotional Distress)

6

116. Plaintiff realleges paragraphs 1 through 115 above and incorporates them herein

7 by reference.

8

117. On January 2, 2005, defendants, police officers, knew or should have known that

9 arresting and imprisoning plaintiff without a warrant or probable cause would cause plaintiff

10 severe emotional distress.

11

118. On January 2, 2005, defendants, police officers, arrested plaintiff, knowing that

12 they lacked a warrant or other legal process. Defendants made the arrest, knowing that they

13 lacked probable cause to believe that plaintiff had committed a crime.

14

119. On information and belief, the acts of the defendants herein alleged were willful,

15 despicable, malicious, and oppressive.

16

120. As a proximate result of the acts of defendants herein alleged, plaintiff incurred

17 severe emotional distress and mental suffering. Plaintiff experienced extreme humiliation,

18 shame, and anger when:

19

a) Defendants, police officers, handcuffed plaintiff in front of her fourteen

20 year old daughter at the San Francisco Airport, on the morning of January 2, 2005;

21

b) A crowd of passengers gathered to watch defendants, police officers,

22 detain and arrest plaintiff, without a warrant or probable cause, at the San Francisco Airport on

23 the morning of January 2, 2005;

24

c) Defendants, police officers, forced plaintiff to miss her flight by detaining

25 and arresting her without a warrant or probable cause;

26

d) Defendant, MARON, removed part of plaintiffs hijab and loosened

27 plaintiffs hair;

28

e) Defendants, police officers, caused plaintiff to experience abdominal

19 Complaint

Case3:06-cv-00545-WHA Document1 Filed01/27/06 Page20 of 21

1 pain and high blood pressure by incarcerating plaintiff in a detention area without access to her

2 medications;

3

f) Defendants, police officers, forced plaintiff to urinate in a public area;

4

g) Defendants represented to plaintiff that her name had been removed from

5 the No-Fly List, but plaintiff later discovered that defendants had in fact made no effort to

6 remove plaintiff from the No-Fly List.

7 ·

TWELFTH CAUSE OF ACTION

8

(Declaratory and Injunctive Relief)

9

121. Plaintiff realleges paragraphs 1through120 above and incorporates them herein

10 by reference.

11

122. An actual and immediate controversy has arisen and now exists between plaintiff

12 and defendants related to their respective rights and duties. Defendants have unlawfully failed to

13 comply with constitutional requirements by engaging in the acts and omissions described in this

14 Complaint. Plaintiff is, therefore, entitled to a declaration of rights over this controversy.

15

123. Plaintiff has no adequate remedy at law. Defendants have acted, and continue to

16 act, to deprive plaintiff of her constitutional rights. Plaintiff is suffering and will continue to

17 suffer irreparable injury as a result of the policies and practices described in this Complaint

18 unless those policies and practices are enjoined by this Court. Plaintiff has no plain, adequate, or

19 speedy remedy at law and is entitled to injunctive relief against defendants. Plaintiff has no

20 administrative remedy because defendants' policies and practices preclude any administrative

21 determinations from affording actual relief.

22 \\\

23 \\\

24 \\\

25 \\\

26 \\\

27 \\\

28

20 Complaint

Case3:06-cv-00545-WHA Document1 Filed01/27/06 Page21 of 21

PRAYER

2

WHEREFORE, plaintiffs pray for the following relief:

3

a. For compensatory damages accor9ing to proof;

4

b. For exemplary and punitive damages according to proof;

5

c.

For costs of suit, including attorneys' fees;

6

d.

For a declaration that defendants' maintenance, management, and dissemination

7 of the No-Fly list are unconstitutional under the First, Fourth, Fifth and Fourteenth Amendments.

8

e.

For an injunction requiring defendants to remedy immediately the Constitutional

9 violations in the maintenance, management, and dissemination of the No-Fly list.

10

f.

For an injunction requiring defendants to remove IBRAHIM's name from the No-

11 Fly List.

12

g. And such other and further relief as the Court may deem appropriate.

13 14 Dated: January 27, 2006

15

16

J ES McMANIS

MARWA ELZANKALY 17

18

Attorneys for Plaintiff,

RAHINAH IBRAHIM

19

DEMAND FOR JURY TRIAL 20

21 Plaintiff hereby demands a jury trial as provided by Rule 38(a) of the Federal Rules of
22
Civil Procedure. 23

24 Dated: January 27, 2006

McMA IS, FAULKNE~N

25

26 27
28
Complaint

JAMES McMANIS MARWA ELZANKALY
· Attorneys for Plaintiff, RAHINAH IBRAHIM
21

 
 Case3:06-cv-00545-WHA Document101 Filed08/16/06 Page1 of 21

United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 RAHINAH IBRAHIM, an individual,

No. C 06-00545 WHA

11

Plaintiff,

12

v.

ORDER GRANTING MOTIONS TO DISMISS BROUGHT BY

13

DEPARTMENT OF HOMELAND SECURITY, MICHAEL CHERTOFF, in his official capacity as

FEDERAL DEFENDANTS, UNITED AIRLINES

14

the Secretary of the Department of Homeland

DEFENDANTS, AND

Security, TOM RIDGE, in his official capacity as the DEFENDANT JOHN

15

former Secretary of the Department of Homeland Security, TRANSPORTATION SECURITY

BONDANELLA

16

ADMINISTRATION, KIP HAWLEY, in his official capacity as Administrator of the Transportation

17

Security Administration, DAVID M. STONE, in his official capacity as Acting Administrator of the

18

Transportation Security Administration, TERRORIST SCREENING CENTER, DONNA A. BUCELLA, in

19

er official capacity as Director of the Terrorist Screening Center, NORM MINETA, in his official

20

capacity as Secretary of Transportation, FEDERAL AVIATION ADMINISTRATION, MARION C.

21

BLAKEY, in her official capacity as Administrator of the Federal Aviation Administration, FEDERAL

22

BUREAU OF INVESTIGATION, ROBERT MUELLER, in his official capacity as Director of the

23

Federal Bureau of Investigation, SAN FRANCISCO AIRPORT, CITY OF SAN FRANCISCO, COUNTY

24

OF SAN FRANCISCO, COUNTY OF SAN MATEO, SAN FRANCISCO POLICE

25

DEPARTMENT, UAL CORPORATION, UNITED AIRLINES; DAVID NEVINS, an individual,

26

RICHARD PATE, an individual, JOHN BONDANELLA, an individual, JOHN

27

CUNNINGHAM, an individual, ELIZABETH MARON, an individual, and DOES 1 THROUGH

28 100, inclusive,

Defendants. /

Case3:06-cv-00545-WHA Document101 Filed08/16/06 Page2 of 21

United States District Court For the Northern District of California

1

INTRODUCTION

2

In part, plaintiff Rabinah Ibrahim’s action challenges the constitutionality of the

3 so-called “No-Fly List,” a set of watch lists maintained by the United States government to

4 identify certain aircraft passengers as potential threats to commit violent acts while flying. This

5 Court lacks subject-matter jurisdiction to consider the constitutionality, maintenance, and

6 implementation of the No-Fly List. These questions must be resolved by the courts of appeals.

7

Plaintiff Ibrahim’s action, however, is also a challenge to her arrest and interrogation by

8 the San Francisco Police Department after United Airlines apparently determined that plaintiff’s

9 name was on the No-Fly List. This Court does have subject-matter jurisdiction over this latter

10 portion of plaintiff’s action pertaining to her arrest. Even with respect to this latter part of the

11 action, however, plaintiff has failed to establish personal jurisdiction over defendant John

12 Bondanella and has failed to state a claim against United Airlines or its employees. Similarly,

13 as against the numerous federal defendants named in this action, plaintiff has not made

14 sufficient allegations to support a theory that these federal officials and agencies acted in

15 concert with local law enforcement so as to violate plaintiff’s Fourth Amendment rights under

16 42 U.S.C. 1983. In sum, these defendants’ motions are granted.

17

Plaintiff may, however, still pursue this action as against certain local-government

18 defendants who have not joined the instant motions to dismiss, as well as against the United

19 States Intelligence Services, Inc., a private-government contractor that was only recently added

20 as a defendant after the instant motions were filed.

21

STATEMENT

22

The statutory framework is decisive.

23

Both before and after the terrorist attacks of September 11, 2001, federal law has

24 prohibited a host of violent or threatening conduct committed aboard aircrafts. For example, it

25 is a crime to commit “aircraft piracy,” which is defined as “seizing or exercising control of an

26 aircraft . . . by force, violence, threat of force or violence, or any form of intimidation, and with

27 wrongful intent.” 49 U.S.C. 46502(a)(1)(A). It is also a crime to “take[] any action that poses

28 an imminent threat to the safety of the aircraft or other individuals on the aircraft.” 49 U.S.C.

2

Case3:06-cv-00545-WHA Document101 Filed08/16/06 Page3 of 21

United States District Court For the Northern District of California

1 46318(a). Similarly, federal law prohibits “assaulting or intimidating a flight crew,” or

2 otherwise “interfer[ing] with the performance of the duties of the member or attendant.”

3 49 U.S.C. 46504. It is also impermissible to attempt to board an aircraft while in possession of

4 a “concealed dangerous weapon.” 49 U.S.C. 46505(b)(1).

5

Federal law has also maintained measures, both before and after the September 11

6 attacks, designed to prevent the above conduct from occurring. Accordingly, federal law

7 “provide[s] for the screening of all passengers and property . . . that will be carried aboard a

8 passenger aircraft,” and for the use of devices capable of detecting dangerous weapons and

9 explosives. 49 U.S.C. 44901.

10

On November 19, 2001, in the wake of the September 11 attacks, Congress enacted the

11 Aviation and Transportation Security Act. P.L. 107-71 (2001). In the ATS Act, Congress

12 authorized additional prophylactic measures relating to aircraft security. One significant

13 component of the Act was to confer the responsibility for airline security upon the Under

14 Secretary of Transportation for Security, who is the head of the Transportation Security

15 Administration. Pursuant to the Act, the TSA became an agency within the Department of

16 Transportation. 49 U.S.C. 114(a). In March 2003, after the creation of the Department of

17 Homeland Security, the TSA shifted and became an agency under the DHS. 6 U.S.C. 203(2).

18

The ATS Act stated that “[t]he Under Secretary shall prescribe regulations to protect

19 passengers and property on an aircraft operating in air transportation or intrastate air

20 transportation against an act of criminal violence or aircraft piracy.” 49 U.S.C. 44903(b).

21 Likewise:

22

The Under Secretary shall prescribe regulations under subsection

(b) of this section that require each operator of an airport

23

regularly serving an air carrier holding a certificate issued by the

Secretary of Transportation to establish an air transportation

24

security program that provides a law enforcement presence and

capability at each of those airports that is adequate to ensure the

25

safety of passengers. The regulations shall authorize the operator

to use the services of qualified State, local, and private law

26

enforcement personnel.

27 49 U.S.C. 44903(c)(1).

28

3

Case3:06-cv-00545-WHA Document101 Filed08/16/06 Page4 of 21

United States District Court For the Northern District of California

1

Pursuant to the ATS Act, the TSA’s Under Secretary was also required to implement

2 certain data-sharing programs between law-enforcement agencies. The Under Secretary was to

3 “enter into memoranda of understanding with Federal agencies or other entities to share or

4 otherwise cross-check as necessary data on individuals identified on Federal agency databases

5 who may pose a risk to transportation or national security.” 49 U.S.C. 114(h)(1). Similarly, the

6 Under Secretary was required to:

7

[E]stablish procedures for notifying the Administrator of the

Federal Aviation Administration, appropriate State and local law

8

enforcement officials, and airport or airline security officers of the

identity of individuals known to pose, or suspected of posing, a

9

risk of air piracy or terrorism or a threat to airline or passenger

safety.

10

49 U.S.C. 114(h)(2). “[I]f such an individual is identified, notify appropriate law enforcement

11

agencies, prevent the individual from boarding an aircraft, or take other appropriate action with

12

respect to that individual.” 49 U.S.C. 114(h)(3)(B).

13

TSA has implemented the provisions of the ATS Act through a series of security

14

directives. One such directive is the so-called “No-Fly List,” which is one subject of plaintiff

15

Ibrahim’s action.

16

The No-Fly List is actually comprised of two separate watch lists. One list is known as

17

the “Selectee List.” The Selectee List identifies individuals who must undergo additional

18

security screening, above and beyond the screening imposed on all passengers. The other list is

19

the actual “No-Fly List.” The actual No-Fly List identifies individuals who are prohibited from

20

boarding aircrafts and flying altogether. According to TSA’s Deputy Assistant Administrator

21

Joseph C. Salvator, “[b]oth lists are updated continually, and TSA requires that air carriers

22

monitor them closely” (Salvator Decl. ¶ 7).1

23

A separate agency from the TSA known as the Terrorist Screening Center actually

24

compiles the list of names ultimately placed on the No-Fly List.

25

26

1 The ATS Act also provided secrecy for the TSA’s security directives implemented pursuant to the

Act. “[T]he Under Secretary shall prescribe regulations prohibiting the disclosure of information obtained or
27 developed in carrying out security under authority of the Aviation and Transportation Security Act.”

49 U.S.C. 114(s)(1). Defendants have thus submitted the directive embodying the No-Fly List under seal for in
28 camera review and only roughly described the contents of the directive in their public filings (Salvator

Decl. ¶ 8). This order does not reveal any of the non-public details of defendants’ in camera filings.

4

Case3:06-cv-00545-WHA Document101 Filed08/16/06 Page5 of 21

United States District Court For the Northern District of California

1

*

*

*

2

Plaintiff Rahinah Ibrahim is a citizen of Malaysia. Ibrahim is a Muslim woman. She is

3 41 years old. As of 2005, Ibrahim was a doctoral student at Stanford University, working on a

4 thesis about affordable housing. She was scheduled to complete her degree in March 2005.

5 Ibrahim has no criminal record or links to terrorist activity (First Amd. Compl. ¶¶ 4, 41).

6

Ibrahim had a student visa that was valid from 2001 to 2007. She and her

7 fourteen-year-old daughter were scheduled to travel to Kuala Lumpur on January 2, 2005. The

8 travel itinerary called for them to fly on United Airlines from San Francisco to Kuala Lumpur,

9 with an intermediate stop in Hawaii.

10

On January 2 at 7:00 a.m., Ibrahim and her daughter arrived at San Francisco

11 International Airport. Their flight was scheduled to depart at 9:00 a.m. They went to the

12 United ticket counter, seeking to check-in. Ibrahim also requested wheelchair service, as she

13 was suffering from abdominal pain and back pain due to complications from a recent

14 hysterectomy surgery.

15

According to plaintiff, the United ticketing agent, defendant David Nevins, found

16 Ibrahim’s name on the No-Fly List (First Amd. Compl. ¶ 44). Nevins then allegedly called the

17 San Francisco Police Department to report this information. SFPD Officers Richard Pate and J.

18 Cunningham, also defendants in this action, arrived to investigate the report.

19

Officer Pate called defendant John Bondanella in Washington, D.C. At the time of the

20 incident, Bondanella worked for defendant United States Investigations Services, Inc., which

21 provided contract services to the United States government. USIS contracted out Bondanella’s

22 services to the TSA (Bondanella Decl. 4). Bondanella apparently confirmed that Ibrahim was

23 on the No-Fly List and that the Officer Pate should detain Ibrahim (ibid.).

24

At 8:45 a.m., Officer Cunningham allegedly told Ibrahim she was being arrested (First

25 Amd. Compl. ¶ 46). There is dispute between the parties whether plaintiff was “arrested” or

26 “detained.” Regardless of terminology, Ibrahim was handcuffed behind her back and escorted

27 by officers to SFPD’s police station near the airport. She was placed in a holding cell for over

28

5

Case3:06-cv-00545-WHA Document101 Filed08/16/06 Page6 of 21

United States District Court For the Northern District of California

1 two hours. While in custody, Ibrahim was questioned and searched by several officers.

2 Defendant Officer Elizabeth Maron allegedly asked Ibrahim to remove her hijab (id. at ¶ 47).2

3

At 11:15 a.m., the Federal Bureau of Investigation purportedly requested Ibrahim’s

4 release (First Amd. Compl. ¶ 49). Plaintiff alleged that upon her release she was told that she

5 would be removed from the No-Fly List (id. at ¶ 50). Nevertheless, according to plaintiff, she

6 was subjected to heightened screening at each stop during her trip, which ultimately took place

7 the following day, January 3, 2005 — a fact she took to mean that she was still on the No-Fly

8 List (presumably the Selectee List) (ibid.). After reaching Malaysia, plaintiff’s student visa was

9 revoked by the United States Embassy in Malaysia (Salvator Decl. Exh. 2).

10

On January 27, 2006, Ibrahim filed a complaint against a long list of defendants. The

11 defendants fall into four categories: The federal defendants, the United defendants, the San

12 Francisco defendants, and John Bondanella.3

13

Ibrahim’s complaint included claims under 42 U.S.C. 1983 against all defendants for

14 violations of her constitutional rights including: Violation of the Due Process Clauses of the

15 Fifth and Fourteenth Amendments; violation of the Equal Protection Clause of the Fourteenth

16 Amendment; violation of the Fourth Amendment’s prohibition on unreasonable searches and

17 seizures; violation of plaintiff’s right to freedom of religion under the First Amendment; and

18

19

2 “The complex phenomenon of hijab is generally translated into the English as veil with its correlate

seclusion.” ENCYCLOPEDIA OF ISLAM AND THE MUSLIM WORLD, 721 (Thomson Gale 2004) (emphasis in
20 original). “For many Muslim women, due to a complex of personal belief, social reenforcement, and public

self-image, the use of the hijab is an integral part of their being in the world and an outward expression of their
21 inward faith that dictates modesty and chastity.” Ibid. (emphasis in original).

22

3 The “federal defendants” include: TSA; DHS; Michael Chertoff in his official capacity as Secretary

of DHS; Tom Ridge in his official capacity as the former Secretary of DHS; Edmund S. Hawley in his official
23 capacity as Assistant Secretary of TSA; David M. Stone in his official capacity as former Administrator of TSA;

the Terrorist Screening Center; Donna A. Bucella in her official capacity as Director of TSC; Norm Mineta in
24 his official capacity as Secretary of Transportation; the Federal Aviation Administration; Marion C. Blakely in

her official capacity as Administrator of FAA; FBI;Robert Mueller in his official capacity as Director of FBI;
25 the Transportation Security Operations Center; and the Transportation Security Intelligence Service.

26

The “United defendants” include: United Airlines; UAL Corporation; and United customer-service

agent David Nevins.
27

The “San Francisco defendants” include: The San Francisco International Airport; the City and
28 County of San Francisco; the San Francisco Police Department; and SFPD Officers Pate, Cunningham and
Maron.

6

Case3:06-cv-00545-WHA Document101 Filed08/16/06 Page7 of 21

United States District Court For the Northern District of California

1 violation of her right to freedom of association under the First Amendment. Plaintiff also listed

2 five claims under state law, again against all defendants, including: violations of her civil rights

3 pursuant to California Civil Code §§ 52.1 and 52.3; false imprisonment; intentional infliction of

4 emotional distress; and negligent infliction of emotional distress. Plaintiff also listed

5 declaratory and injunctive relief as a separate cause of action.

6

Plaintiff sought compensatory, exemplary and punitive damages. She also sought a

7 declaration that “defendants’ maintenance, management, and dissemination of the No-Fly List

8 are unconstitutional;” for an injunction “requiring defendants to remedy immediately the

9 Constitutional violations;” and for an injunction “to remove IBRAHIM’s name from the No-Fly

10 List.”

11

On January 30, 2006, plaintiff also filed a petition based on related allegations directly

12 with the Ninth Circuit. Ibrahim v. Tran, Case No. 06-70574. On June 13, the Ninth Circuit

13 transferred the petition to the Court of Appeals for the District of Columbia.

14

Federal defendants, United defendants, and Bondanella moved to dismiss the initial

15 complaint and plaintiff sought leave to amend. San Francisco defendants did not join the

16 dismissal motions, and instead answered the complaint. Extensive oral argument on those

17 motions was heard on July 20, 2006. An order issued that same day, granting plaintiff leave to

18 amend and allowing defendants to renew their motions to dismiss, so as to address any potential

19 changes in the jurisdictional landscape following the amendment.

20

The amended complaint was filed on August 4, 2006 (although defendants had access to

21 the amended complaint prior to the July 20 hearing). The amended complaint left in tact all of

22 the allegations and legal claims from the initial complaint, but added three entities to the list of

23 federal defendants: The Transportation Security Operations Center (“TSOC”); the

24 Transportation Security Intelligence Service (“TSIS”); and the United States Intelligence

25 Services, Inc. (“USIS”). Summons was only issued to these three defendants on August 7,

26 2006. Because the jurisdictional questions pertaining to USIS as a private entity incorporated in

27 Virginia and unaffiliated with the other defendants may be unique, no findings are made with

28

7

Case3:06-cv-00545-WHA Document101 Filed08/16/06 Page8 of 21

United States District Court For the Northern District of California

1 respect to USIS in this order. The holdings pertaining to federal defendants herein apply

2 equally to TSOC and TSIS, however. (Federal Dfdts’ Supp. Br. 2).

3

This order is based on a consideration of the briefing for the initial motions to dismiss,

4 the oral argument, and the supplemental briefing of the parties in response to plaintiff’s

5 amended complaint.

6

ANALYSIS

7

Federal defendants, United defendants and Bondanella jointly argue that this Court lacks

8 subject-matter jurisdiction. Bondanella also contends there is no personal jurisdiction over him

9 for purposes of this action. All three sets of defendants also raise arguments as to the

10 sufficiency of the claims under FRCP 12(b)(6).

11

1.

SUBJECT-MATTER JURISDICTION

12

Pursuant to FRCP 12(h)(3), a court shall dismiss the action if it lacks subject-matter

13 jurisdiction over the case. To avoid dismissal, plaintiff must “show that the facts alleged, if

14 proved, would confer standing upon him.” Warren v. Fox Family Worldwide, Inc., 328 F.3d

15 1136, 1140 (9th Cir. 2003). A court “must accept as true all material allegations of the

16 complaint, and must construe the complaint in favor of the complaining party.” Warth v.

17 Seldin, 422 U.S. 490, 501 (1975). While materials outside the complaint are generally not

18 considered, a court may take judicial notice of “matters of public record.” Lee v. City of Los

19 Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (citation omitted).

20

A. Claims Pertaining to Constitutionality and Implementation of the

No-Fly List.

21

Congress has enacted a special review statute for final orders of the Secretary of

22

Transportation promulgated under the Federal Aviation Act:

23

a person disclosing a substantial interest in an order issued by the

24

Secretary of Transportation (or the Under Secretary of

Transportation for Security with respect to security duties and

25

powers designated to be carried out by the Under Secretary or the

Administrator of the Federal Aviation Administration with respect

26

to aviation duties and powers designated to be carried out by the

Administrator) in whole or in part under this part, part B, or

27

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

28

Appeals for the District of Columbia Circuit or in the court of

8

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United States District Court For the Northern District of California

1

appeals of the United States for the circuit in which the person

resides or has its principal place of business.

2

49 U.S.C. 46110(a) (emphasis added).

3

“Accordingly, whether the district court had jurisdiction over Gilmore’s claims turns on

4

whether the Security Directive that established the identification policy is an ‘order’ within the

5

meaning of this statute.” Gilmore v. Gonzales, 435 F.3d 1125, 1132 (9th Cir. 2006). “Courts

6

have given a broad construction to the term ‘order’ in Section 1486(a) [46110’s predecessor].”

7

Ibid. (citation omitted). The Gilmore court explained that:

8

“Order” carries a note of finality, and applies to any agency

9

decision which imposes an obligation, denies a right, or fixes

some legal relationship. In other words, if the order provides a

10

“definitive” statement of the agency’s position, has a “direct and

immediate” effect on the day-to-day business of the party

11

asserting wrongdoing, and envisions “immediate compliance with

its terms,” the order has sufficient finality to warrant the appeal

12

offered by section [46110].

13 Ibid. (quoting Crist v. Leippe, 138 F.3d 801, 804 (9th Cir.1998)).

14

Here, the TSA’s directive of the No-Fly List is an “order” under the ambit of

15 Section 46110. Our sister district recently tackled this exact question in Green v.

16 Transportation Security Administration, 351 F. Supp. 2d 1119, 1124 (W.D. Wash. 2005).

17 Green, like the instant action, involved a constitutional challenge to the implementation and

18 maintenance of the No-Fly List. The Green opinion concluded that the No-Fly List was an

19 order under Section 46110 because:

20

These Security Directives provide a definitive statement of the

TSA position and have a direct and immediate effect on persons

21

listed on the No-Fly List, barring travel on commercial aircraft.

Each aircraft operator is required by law to comply immediately

22

with Security Directives.

23 Id. at 1124–25. Accordingly, all of the requirements under Gilmore for an “order” are satisfied.

24 The No-Fly List is an order of the TSA.

25

Indeed, it appears that the Ninth Circuit has already ruled in this case that the special

26 jurisdictional provisions of Section 46110 apply to plaintiff’s constitutional challenges to the

27 No-Fly List. As noted above, plaintiff filed a direct petition to the Ninth Circuit based on

28 similar allegations in the complaint she filed in this Court. According to the Ninth Circuit’s

9

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United States District Court For the Northern District of California

1 docket, the Ninth Circuit transferred the action to Court of Appeals for the District of Columbia

2 on June 13 for the following reason (Federal Defdts’ Reply Br. Exh. 1):

3

This is a petition for review of a Security Directive of the

Transportation Security Administration. A petition for review

4

must be filed in “the USCA for the Dist. of Columbia Circuit or in

the ct of appeals of the US for the circuit in which [petr] resides

5

or has its principal place of business.” Petr works & resides in

Malaysia. Accordingly, we transfer this petition for review to

6

USCA for the Dist. of Columbia Circuit.

7 Thus on the same challenge to the No-Fly List before us, the Ninth Circuit has deemed that

8 plaintiff must comply with the special review procedures of Section 46110.

9

Nevertheless, plaintiff contends there are reasons why dismissal for lack of subject-

10 matter jurisdiction under Section 46110 is not required here as to her challenge to the

11 constitutionality of the No-Fly List.

12

First, plaintiff argues that Section 46110 no longer applies to orders of TSA because

13 TSA is under the umbrella of the Department of Homeland Security, rather than the Department

14 of Transportation. Section 46110, it is argued, only requires review in the courts of appeals for

15 orders by the Secretary of Transportation or the Under Secretary of Transportation for Security,

16 not the heads of DHS.

17

This argument lacks merit. At the time the ATS Act was passed, the head of TSA was

18 also the Under Secretary of Transportation for Security. Thus Section 46110’s reference to the

19 Under Secretary manifests Congress’ intent to place orders of the TSA in the hands of the

20 courts of appeals. The fact that the language of Section 46110 was not amended after the

21 creation of DHS does not alter the reality that TSA’s security directives involve aviation

22 security — the exact directives over which Section 46110 vested exclusive jurisdiction in the

23 courts of appeals.

24

Second, plaintiff similarly argues that Section 46110 does not apply because the

25 Terrorist Screening Center rather than TSA maintains the names on the No-Fly List. This

26 argument ignores the reality of administrative-agency operations. Congress authorized TSA,

27 not TSC, to implement directives to promote and assure the safety of passengers on aircrafts.

28 TSA, in fulfilling this Congressional mandate, may rely on outside agencies to assist with

10

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United States District Court For the Northern District of California

1 implementation of its security directives. At the end of the day, however, the directives were

2 issued by TSA and TSA bears the ultimate responsibility for their implementation.

3

Third, plaintiff contends that this Court retains jurisdiction over orders “collateral” to

4 TSA’s No-Fly List directive. The “Passenger Identification Verification” process, it is argued,

5 is such a collateral order that falls outside of Section 46110.

6

The Passenger Identification Verification process allows individuals to submit

7 identification in advance of travel and thereby assure that they are not mistaken for being on the

8 No-Fly List. TSA’s website explains the function of the Passenger Identification Verification

9 process as follows (RJN Exh. Q) (emphasis added):

10

Please understand that the TSA clearance process will not remove

a name from the Watch Lists. Instead this process distinguishes

11

passengers from persons who are in fact on the Watch Lists by

placing their names and identifying information in a cleared

12

portion of the Lists. Airline personnel can then more quickly

determine when implementing TSA-required identity verification

13

procedures that these passengers are not the person of interest

whose name is actually on the Watch Lists.

14

Plaintiff argues that the Passenger Identification Verification process is akin to the

15

Ombudsman Clearance Procedure which was deemed to be a collateral order outside of the

16

reach of Section 46110 in Green, supra. The Ombudsman procedure at issue in Green similarly

17

provided a means for individuals placed on the No-Fly List to seek administrative appeal of the

18

placement. The Green court accordingly let the plaintiffs proceed on their claim under the Due

19

Process Clause of the Fifth Amendment, alleging that the defendants “failed to provide

20

constitutionally adequate mechanisms for Plaintiffs to avoid being subjected to the stigma,

21

interrogations, delays, enhanced searches, detentions, and/or other travel impediments

22

associated with having a name identical or similar to a name on the No-Fly List.”

23

351 F. Supp. 2d at 1128–29.

24

It is true that Green found the Ombudsman Clearance procedure challengeable in district

25

court. But the difference here is that plaintiff is not actually challenging the Passenger

26

Identification Verification process. Plaintiff did not raise allegations in her amended complaint

27

about the procedures for “clearing” herself as not on the No-Fly List. Instead, plaintiff

28

challenged the fact that she was on the No-Fly List. Accordingly, federal defendants conceded

11

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United States District Court For the Northern District of California

1 during oral argument that plaintiff was on the No-Fly List. The plaintiffs in Green, in contrast,

2 were challenging the inadequacy of the process for avoiding the stigma resulting from

3 confusion with names actually on the list. Here, even if this clearance procedure is a collateral

4 order, it is not genuinely implicated by plaintiff’s amended complaint so as to confer

5 subject-matter jurisdiction on this Court.

6

Fourth, plaintiff contends that since her claims are broad constitutional challenges to the

7 No-Fly List, Section 46110 does not apply. This argument fails under Gilmore: “[T]he district

8 court is divested of jurisdiction only if the claims are ‘inescapably intertwined with a review of

9 the procedures and merits surrounding the . . . order.’” Gilmore, 435 F.3d at 1133 n. 9 (quoting

10 Mace v. Skinner, 34 F.3d 854, 858 (9th Cir.1994)).

11

As explained in Gilmore, facial constitutional challenges to TSA directives are

12 inescapably intertwined with a review of the merits of the directives and of the procedures

13 implementing the directives. All of plaintiff’s claims, whether clothed in constitutional

14 language or not, attack the merits of the implementation of the No-Fly List.

15

B. Claims Pertaining to Plaintiff’s Alleged Arrest.

16

Defendants have conceded that the jurisdictional bar of Section 46110 is inapplicable to

17 the extent plaintiff has stated claims unrelated to the propriety and implementation of the

18 No-Fly List. The Court’s jurisdiction regarding plaintiff’s claims specific to her arrest and

19 subsequent is essentially uncontroverted. This includes plaintiff’s Fourth Amendment claim

20 and her claim under common-law tort principles.

21

This part of plaintiff’s action surrounds her claims that defendants “arrested her, and

22 searched her without any probably [sic] cause or an arrest or search warrant” (First Amd.

23 Compl. ¶ 75). Significantly, the federal defendants conceded at oral argument, the security

24 directives do not provide for the arrest of an individual identified as being on the No-Fly List.

25 Resolution of plaintiff’s Fourth Amendment claims and her tort claims, thus, will not hinge on a

26 determination of the merits of the No-Fly List procedures. On the contrary, the fact issues will

27 involve whether the arrest/detention and interrogation were proper, independent of plaintiff’s

28 placement on the No-Fly List.

12

Case3:06-cv-00545-WHA Document101 Filed08/16/06 Page13 of 21

United States District Court For the Northern District of California

1

Plaintiff’s claims regarding the constitutionality of her arrest/detention under the Fourth

2 Amendment and under common-law tort principles are not intertwined with the broader

3 challenges to the No-Fly List and are, therefore, not subject to Section 46110.

4

*

*

*

5

There is still no subject-matter jurisdiction, however, over federal defendants with

6 respect to plaintiff’s tort-law claims. “The FTCA [Federal Tort Claims Act] waives the

7 government’s sovereign immunity for tort claims arising out of the negligent conduct of

8 government employees acting within the scope of their employment.” Soldano v. United States,

9 453 F.3d 1140 (9th Cir. 2006). Plaintiff, however, has failed to comply with the procedural

10 requirements expressed in 28 U.S.C. 2675(a). That section provides:

11

An action shall not be instituted upon a claim against the United

States for money damages for injury or loss of property or

12

personal injury or death caused by the negligent or wrongful act

or omission of any employee of the Government while acting

13

within the scope of his office or employment, unless the claimant

shall have first presented the claim to the appropriate Federal

14

agency and his claim shall have been finally denied by the agency

in writing and sent by certified or registered mail.

15

Plaintiff failed to file an administrative tort complaints against federal defendants until June 7,

16

2006, after she initiated this action in federal court (RJN Exhs. J–N). Her common-law tort

17

claims against federal defendants, therefore, must be dismissed for want of jurisdiction.

18

2.

PERSONAL JURISDICTION OVER DEFENDANT BONDANELLA.

19

Defendant Bondanella also moves to dismiss plaintiff’s claims against him for lack of

20

personal jurisdiction. When a defendant moves to dismiss for lack of personal jurisdiction, the

21

plaintiff carries the burden of demonstrating that personal jurisdiction exists. Cubbage v.

22

Merchent, 744 F.2d 665, 667 (9th Cir. 1984).

23

Defendant Bondanella’s alleged contacts with the forum include: (1) having previously

24

lived in California from 1987–1992; (2) traveling to California a few times after leaving in

25

1992; and (3) fielding telephone calls from all parts of the country including California as an

26

employee with a private contracting firm for the United States government, including

27

purportedly answering the call about plaintiff Ibrahim from SFO in January 2005. This order

28

13

Case3:06-cv-00545-WHA Document101 Filed08/16/06 Page14 of 21

United States District Court For the Northern District of California

1 finds that these contacts are insufficient to support the exercise of either general or specific

2 personal jurisdiction over Bondanella.

3

A. General Jurisdiction.

4

In order for a court to exercise general jurisdiction over a nonresident defendant, the

5 plaintiff must demonstrate that the defendant’s contacts with the forum state are “substantial”

6 or “continuous and systematic.” Helicopteros Nacionales de Columbia, S. A. v. Hall, 466 U.S.

7 408, 416 (1984). “[I]n a controversy unrelated to a defendant’s contacts with the forum, a court

8 may exercise general jurisdiction only where ‘continuous corporate operations within a state are

9 thought so substantial and of such a nature as to justify suit against the defendant on causes of

10 action arising from dealings entirely distinct from those activities.’” Tauzon v. R.J. Reynolds

11 Tobacco Co., 433 F.3d 1163, 1169 (9th Cir. 2006) (quoting Int’l Shoe v. Washington, 326 U.S.

12 310, 318 (1945)). “The standard for establishing general jurisdiction is ‘fairly high,’ and

13 requires that the defendant’s contacts be of the sort that approximate physical presence.”

14 Bancroft & Masters, Inc. v. Augusta Nat’l, Inc., 223 F.3d 1082, 1086 (9th Cir. 2000).

15

Here, Bondanella’s contacts in no way “approximate physical presence.” While

16 Bondanella once lived in California, he left California thirteen years before the incidents

17 involving plaintiff. Plaintiff has not demonstrated that Bondanella’s occasional business trips to

18 California after moving away were systematic — sporadic business visits are insufficient. See

19 Helicopteros, 466 U.S. at 417 (“Visits on such business, even if occurring at regular intervals,

20 would not warrant the inference that the corporation was present within the jurisdiction”)

21 (internal citation omitted). Likewise, Bondanella’s work as a private-contract employee for the

22 TSA in Washington, D.C. failed to provide the type of continuous contacts required.

23 Bondanella apparently received sporadic phone calls from California, just as he likely received

24 phone calls from virtually every jurisdiction. This is not enough for general jurisdiction. See

25 Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1331 (9th Cir. 1984) (“Making telephone calls

26 and sending telexes and letters to Tucson are not activities which support a finding of general

27 jurisdiction”).

28

14

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United States District Court For the Northern District of California

1

B. Specific Jurisdiction.

2

Specific jurisdiction over a defendant exists where:

3

(1) The non-resident defendant must purposefully direct his

activities or consummate some transaction with the forum or

4

resident thereof; or perform some act by which he purposefully

avails himself of the privileges of conducting activities in the

5

forum, thereby invoking the benefits and protections of its laws;

6

(2) the claim must be one which arises out of or relates to the

defendant’s forum-related activities; and

7

(3) the exercise of jurisdiction must comport with fair play and

8

substantial justice, i.e. it must be reasonable.

9 Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002) (citation omitted). Again,

10 plaintiff carries the burden of demonstrating that personal jurisdiction exists. Cubbage,

11 744 F.2d at 667.

12

(1) Purposeful Direction.

13

“[T]o have purposefully availed oneself of conducting activities in the forum, the

14 defendant must have performed some type of affirmative conduct which allows or promotes the

15 transaction of business within the forum state.” Sinatra v. Nat’l Enquirer, Inc., 854 F.2d 1191,

16 1195 (9th Cir. 1988). When an intentional tort claim is asserted, the “effects test” is utilized for

17 the purposeful-availment analysis. The “effects test” requires that “the defendant allegedly

18 have (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm

19 that the defendant knows is likely to be suffered in the forum state.” Dole Food, 303 F.3d at

20 1111.

21

Plaintiff alleges that Bondanella’s intentional acts in California included receiving the

22 phone call from SFO on January 2, 2005, and by purportedly instructing SFPD officers at SFO

23 to “detain” plaintiff. These allegations satisfy the intentional act requirement. While simply

24 receiving a phone call may arguably be involuntary, the subsequent purported direction to

25 detain plaintiff, at least, was intentional.

26

Nevertheless, Bondanella cannot be deemed to have taken an act “expressly aimed at the

27 forum state.” As the Ninth Circuit recently explained, it is not the case “that a foreign act with

28 foreseeable effects in the forum state will always give rise to specific jurisdiction. We have said

15

Case3:06-cv-00545-WHA Document101 Filed08/16/06 Page16 of 21

United States District Court For the Northern District of California

1 that there must be ‘something more’ . . . that ‘something more’ is what the Supreme Court

2 described as ‘express aiming’ at the forum state.” Pebble Beach Co. v. Caddy, 453 F.3d 1151,

3 1156 (9th Cir. 2006). As in Pebble Beach, Bondanella “hatched no such plan directed” at the

4 forum. Furthermore, where a defendant’s forum-related activities “were conducted for the sole

5 purpose of fulfilling its obligation,” the defendant has not purposely availed itself of the

6 protections of the forum-state’s law. Davis v. Am. Family Mut. Ins. Co., 861 F.2d 1159, 1162

7 (9th Cir. 1988). Finally, “ordinarily ‘use of the mails, telephone, or other international

8 communications simply do not qualify as purposeful activity invoking the benefits and

9 protection of the [forum] state.’” The purported purposeful action was a phone call received by

10 Bondanella. Roth v. Garcia Marquez, 942 F.2d 617, 622 (9th Cir. 1991) (internal citation

11 omitted).4

12

(2) Arising Out of Bondanella’s Activities.

13

If this order found that Bondanella’s receipt of the phone call and accompanying

14 directions to Officer Pate constituted purposeful availment, specific jurisdiction requires that

15 these acts must be the ones giving rise to the current suit. “We measure this requirement in

16 terms of ‘but for’ causation.” Bancroft & Masters, 223 F.3d at 1088. Since this order finds

17 Bondanella did not so purposefully avail himself this consideration is moot.

18

(3) Reasonableness.

19

Personal jurisdiction would not even be reasonable as to Bondanella, even if all of the

20 above factors were satisfied. “Once it has been decided that a defendant purposefully

21 established minimum contacts with a forum, ‘he must present a compelling case that the

22 presence of some other considerations would render jurisdiction unreasonable’ in order to

23 defeat personal jurisdiction.” Dole, 303 F.3d at 1114 (internal citation omitted).. The Ninth

24 Circuit has identified seven factors relevant to the reasonableness inquiry. They include: (1)

25

26

4 The third part of the “effects test” is satisfied as to Bondanella. “[T]he ‘brunt’ of the harm need not

be suffered in the forum state” — there simply must have been “a jurisdictionally sufficient amount of harm . . .
27 suffered in the forum state.” Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199,

1207 (9th Cir. 2006). Plaintiff’s alleged harm of being unlawfully detained was suffered in California, as
28 Bondanella presumably knew it would be, regardless of plaintiff’s Malaysian citizenship.

16

Case3:06-cv-00545-WHA Document101 Filed08/16/06 Page17 of 21

United States District Court For the Northern District of California

1 the extent of the defendant’s purposeful injection into the forum state’s affairs; (2) the burden

2 on the defendant of defending in the forum; (3) the extent of conflict with the sovereignty of the

3 defendant’s state; (4) the forum state’s interest in adjudicating the dispute; (5) the most efficient

4 judicial resolution of the controversy; (6) the importance of the forum to the plaintiff’s interest

5 in convenient and effective relief; and (7) the existence of an alternative forum.

6

First, the extent of Bondanella’s injection into California’s affairs is extremely limited.

7 He received a phone call from California authorities — he did not initiate the call. He merely

8 confirmed the information based on his obligations as a contract employee of the TSA. After he

9 relayed the relevant information to Officer Pate, Bondanella was completely out of the picture.

10

Second, Bondanella will be greatly burdened by having to defend himself in California.

11 As a resident of Virginia, he is being asked to defend litigation on the opposite side of the

12 country. He is an individual lacking the resources of the other governmental and corporate

13 entities in this litigation. This is a strong factor against asserting jurisdiction.

14

Third, it is a neutral factor as to whether there is conflict with the sovereignty of

15 defendant’s state.

16

Fourth, California’s interest in avoiding unlawful arrests is not controlling. While

17 California’s interest is real, it is diminished given the citizenship of the parties. Plaintiff is a

18 Malaysian citizen. Bondanella is a Virginia citizen. Plaintiff’s selected forum lacks sufficient

19 interest necessary, standing alone, to render personal jurisdiction reasonable. See, e.g., Asahi

20 Metal Indus. Co., Ltd. v. Cheng Shin Rubber Indus. Co., Ltd., 480 U.S. 102, 114–15 (1987).

21

Fifth, the factor of efficient resolution does not tip the balance in favor of a California

22 forum. Some witnesses such as the SFPD Officers are located in California. Others, however,

23 including the federal agencies and officials, Ibrahim, and Bondanella are located outside of

24 California.

25

Sixth, a California forum also does not appear to be crucial to resolution of Ibrahim’s

26 claims against Bondanella. The convenience factor is generally of limited importance,

27 particularly so where plaintiff is not present in the jurisdiction and can just as easily get

28 resolution in another forum (Washington, D.C. or Virginia). See, e.g., Ziegler v. Indian River

17

Case3:06-cv-00545-WHA Document101 Filed08/16/06 Page18 of 21

United States District Court For the Northern District of California

1 County, 64 F.3d 470, 476 (9th Cir. 1995). Indeed, Ibrahim is already litigating her appellate

2 petition in the Washington, D.C. Circuit Court of Appeals. Thus, California adds little

3 substantive or practical value as a forum for plaintiff’s claims against Bondanella.

4

Seventh, as noted, plaintiff could pursue her claims against Bondanella in either Virginia

5 or Washington, D.C., where he resided and worked and continues to reside and work.

6

At bottom, even if Bondanella’s contacts with California were sufficient, it would be

7 unreasonable to allow him to be haled into court in this jurisdiction for the minimal contacts

8 arising out of the phone call from Officer Pate. To rule otherwise, would subject an employee

9 like Bondanella to be haled into any court in the country any time he responded to calls from

10 local law enforcement and instructed law enforcement as to his perceived proper course of

11 conduct. Plaintiff’s claims against Bondanella must be dismissed.

12

3.

FAILURE TO STATE A CLAIM.

13

United defendants and federal defendants both move to dismiss the surviving portions of

14 plaintiff’s claims on grounds that plaintiff has failed to state a claim under FRCP 12(b)(6).

15

A motion to dismiss under FRCP 12(b)(6) tests for legal sufficiency of the claims

16 alleged in the complaint. A complaint should not be dismissed “unless it appears beyond doubt

17 that the plaintiff can prove no set of facts in support of his claim which would entitle him to

18 relief.” Conley v. Gibson, 355 U.S. 41, 45–46 (1957). On the other hand, “conclusory

19 allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for

20 failure to state a claim.” Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996).

21

A. United Defendants.

22

Plaintiff’s allegations against United defendants consist exclusively of the following.

23 United ticket agent David Nevins requested plaintiff’s ticket during check-in. After apparently

24 finding that plaintiff was on the No-Fly List, Nevins allegedly placed a call to the SFPD

25 informing them of the situation and requesting that officers come to the check-in counter.

26

These allegations, even if borne out, cannot establish a constitutional violation or a

27 tortious act. Essentially United did nothing more than it was legally required to do.

28

18

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United States District Court For the Northern District of California

1

(2) State Claims.

2

California law affords an unqualified privilege to citizen reports to law-enforcement

3 personnel. See Cal. Civ. Code § 47(b). “[T]he overwhelming majority of cases conclude that

4 when a citizen contacts law enforcement personnel to report suspected criminal activity and to

5 instigate law enforcement personnel to respond, the communication also enjoys an unqualified

6 privilege under section 47(b).” Hagberg v. Cal. Fed. Bank FSB, 32 Cal. 4th 350, 364 (2004).

7 Accordingly, “communications are privileged under section 47(b) when they are intended to

8 instigate official governmental investigation into wrongdoing, including police investigation.”

9 Id. at 370. Hagberg only left open the possibility that a police report that constituted malicious

10 prosecution or that was filed with racial animus would survive the privilege. Id. at 375–76.

11 Otherwise, all such claims must fail as a matter of law.

12

Plaintiff’s allegations here against United defendants fall far short the exceptions.

13 Plaintiff has not alleged that United defendants acted with malice or racial animus. There are

14 no allegations that Nevins deliberately sought to punish plaintiff or that Nevin’s selected

15 plaintiff’s name because of ethnic prejudice. There are not even any allegations that Nevins

16 incorrectly reported plaintiff being on the No-Fly List. Plaintiff’s allegations have simply

17 described Nevins as following protocol. The allegations suggest that Nevins read plaintiff’s

18 name off a list, which neither he nor United created or maintained, and then contacted SFPD.

19 No state claims can survive against United defendants.

20

(2) Federal Claims.

21

Similarly, plaintiff has failed to state a Section 1983 claim against United defendants.

22 The Ninth Circuit explained that a private defendant compelled to take an action at the behest of

23 the government is unlikely to be liable under Section 1983:

24

[I]n a case involving a private defendant, the mere fact that the

government compelled a result does not suggest that the

25

government’s action is “fairly attributable” to the private

defendant. Indeed, without some other nexus between the private

26

entity and the government, we would expect that the private

defendant is not responsible for the government’s compulsion.

27

Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 838 (9th Cir. 1999). “When the state

28

compels a private party to discriminate against members of a racial minority, it is the state

19

Case3:06-cv-00545-WHA Document101 Filed08/16/06 Page20 of 21

United States District Court For the Northern District of California

1 action, not the private conduct, which is unconstitutional . . . . [A] private party in such a case

2 is ‘left with no choice of his own’ and consequently should not be deemed liable.” Ibid.

3 (internal citation omitted). See also Rivera v. Green, 775 F.2d 1381, 1384 (9th Cir. 1985)

4 (holding that plaintiff failed to state a Section 1983 claim against private citizens who contacted

5 police about plaintiff’s noisy party).

6

Plaintiff’s allegations here against United defendants fall far short of the constitutional

7 threshold. As noted above, plaintiff has not alleged that United defendants acted with hostility

8 or racially-discriminatory motive directed toward plaintiff. Again, the allegations simply

9 indicate that Nevins read plaintiff’s name off a list compiled by the federal government and

10 stopped plaintiff from traveling — all as Nevins and United Airlines were required to do.

11

All of plaintiff’s claims against United defendants are, therefore, dismissed with

12 prejudice. See Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990) (“The district

13 court’s discretion to deny leave to amend is particularly broad where plaintiff has previously

14 amended the complaint”) (internal citation omitted).

15

B. Federal Defendants.

16

As stated above, this Court has jurisdiction to determine whether plaintiff’s alleged

17 arrest violated plaintiff’s Fourth Amendment rights pursuant to Section 1983. Federal

18 defendants, however, argue that they cannot be sued under Section 1983, even if this Court has

19 subject-matter jurisdiction over plaintiff’s Fourth Amendment claim. This order agrees.

20

Section 1983 provides a remedy for violations committed under color of state law.

21 “[F]ederal officials who violate federal rights protected by § 1983 generally do not act under

22 ‘color of state law.’” Kali v. Bowen, 854 F.2d 329, 331 (9th Cir. 1988). A limited exception to

23 this rule is that federal officials may be liable when they conspire with state officials.

24 “Although federal officials acting under federal authority are generally not considered to be

25 state actors, they may be liable under § 1983 if they are found to have conspired with or acted in

26 concert with state officials to some substantial degree.” Cabrera v. Martin, 973 F.2d 735, 742

27 (9th Cir. 1992).

28

20

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United States District Court For the Northern District of California

1

Plaintiff here has not made any reasonable allegations that her purportedly

2 unconstitutional arrest and interrogation was the result of a conspiracy between federal

3 defendants and local law enforcement. Other than Bondella individually, there is no plausible

4 theory by which any federal defendant acted in concert with any police officer. As noted, this

5 Court lacks personal jurisdiction over Bondanella. Accordingly, no Section 1983 claim can

6 survive as to any federal defendant.

7

CONCLUSION

8

For the foregoing reasons, all of plaintiff’s claims against defendant Bondanella, United

9 defendants, and federal defendants are dismissed with prejudice. Partial judgment will be

10 entered as to these defendants pursuant to FRCP 54(b) so as to allow plaintiff to seek immediate

11 appeal of this order. These are separable claims from plaintiff’s claims against the remaining

12 defendants and are fully adjudicated by this order. There is no just reason for delay given the

13 novelty and seriousness of the legal issues involved in plaintiff’s claims. See, e.g., Purdy

14 Mobile Homes, Inc. v. Champion Home Builders Co., 594 F.2d 1313, 1316 (9th Cir. 1979).

15

Of course, all of plaintiff’s claims against San Francisco defendants may proceed, as

16 those defendants have not sought dismissal. Likewise plaintiff’s claims against defendant

17 United States Intelligence Services, Inc. may proceed, as USIS was only recently added to this

18 litigation and has not yet responded.

19

20

IT IS SO ORDERED.

21

22 Dated: August 16, 2006. 23

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

24

25

26

27

28

21

 
 Case3:06-cv-00545-WHA Document138 Filed08/22/08 Page1 of 19

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RAHINAH I BRAHIM, an individual ,



Plaintiff-Appellant,

v.

DEPARTMENT OF H OMELAND

SECURITY; M ICHAEL C HERTOFF, in

his official capacity as the

Secretary of the Department of

Homeland Security; T OM R IDGE, in

his official capacity as the former

Secretary of the Department of

Homeland Security

TRANSPORTATION S ECURITY ADMINISTRATION; K IP H AWLEY, in his official capacity as Administrator of the

No. 06-16727
 D.C. No. CV-06-00545-WHA

Transportation Security

OPINION

Administration; D AVID M. S TONE,

in his official capacity as Acting

Administrator of the

Transportation Security

Administration; T ERRORIST

SCREENING C ENTER; D ONNA

BUCELLA, in her official capacity

as Director of the Terrorist

Screening Center; N ORM M INETA,

in his official capacity as

Secretary of Transportation;

 FEDERAL A VIATION A DMINISTRATION;

10941

Case3:06-cv-00545-WHA Document138 Filed08/22/08 Page2 of 19

10942

IBRAHIM v. DHS

 MARION C. B LAKEY, in her official
capacity as Administrator of the Federal Aviation Administration; FEDERAL B UREAU OF I NVESTIGATION; ROBERT M UELLER, in his official capacity as Director of the Federal Bureau of Investigation ,
Defendants-Appellees,
UAL C ORPORATION; U NITED AIRLINES; D AVID N EVINS, an individual,
Defendants-Appellees,
JOHN B ONDANELLA, an individual,
 Defendant-Appellee,
TRANSPORTATION S ECURITY OPERATIONS C ENTER; TRANSPORTATION S ECURITY INTELLIGENCE S ERVICES,
Defendants-Appellees,
and
SAN F RANCISCO A IRPORT; C ITY OF SAN F RANCISCO; C OUNTY OF S AN FRANCISCO; C ITY OF S AN F RANCISCO POLICE D EPARTMENT,
Defendants,
RICHARD P ATE, an individual,
 Defendant,

Case3:06-cv-00545-WHA Document138 Filed08/22/08 Page3 of 19

IBRAHIM v. DHS

10943

 JOHN C UNNINGHAM, an individual;
ELIZABETH M ARON, an individual ,
 Defendants,
US I NVESTIGATIONS S ERVICES, I NC., a Virginia corporation ,
 Defendant.

Appeal from the United States District Court for the Northern District of California
William H. Alsup, District Judge, Presiding
Argued and Submitted April 18, 2008—San Francisco, California
Filed August 18, 2008
Before: Alex Kozinski, Chief Judge, N. Randy Smith, Circuit Judge, and S. James Otero,* District Judge.
Opinion by Chief Judge Kozinski; Dissent by Judge N.R. Smith

*The Honorable S. James Otero, United States District Judge for the Central District of California, sitting by designation.

Case3:06-cv-00545-WHA Document138 Filed08/22/08 Page4 of 19

10946

IBRAHIM v. DHS

COUNSEL
Marwa Elzankaly, James McManis and Kevin Hammon, McManis Faulkner & Morgan, San Jose, California, for the plaintiff-appellant.
Joshua Waldman, Appellate Staff Attorney, Peter D. Keisler, Assistant Attorney General, Scott N. Schools, U.S. Attorney, and Douglas N. Letter, Appellate Staff Attorney, U.S. Department of Justice, Washington, D.C., for the federal defendantsappellees.
Sharon Douglass Mayo, Arnold & Porter LLP, San Francisco, California, and E. Alex Beroukhim, Arnold & Porter LLP, Los Angeles, California, for defendant-appellee John Bondanella.
Richard G. Grotch, Redwood City, California, for defendantsappellees David Nevins, United Air Lines, Inc. and UAL Corporation.

Case3:06-cv-00545-WHA Document138 Filed08/22/08 Page5 of 19

IBRAHIM v. DHS OPINION

10947

KOZINSKI, Chief Judge:

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

Facts

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

When the police arrived, they phoned the Transportation

Security Intelligence Service, which is part of the Transporta-

tion Security Administration, which is in turn part of the

Department of Homeland Security. An employee named John

Bondanella answered the phone at the Transportation Security

Intelligence Service’s office in Washington, D.C.

1 He

instructed the police to prevent Ibrahim from flying, to detain

her for further questioning and to call the FBI. The police did

as they were told: Without explaining their reasons, they

handcuffed Ibrahim in front of her fourteen-year-old daughter

and took her to the police station. Two hours later, the FBI

told the police to release her, and the police complied.

The following day, Ibrahim again attempted to fly from San Francisco to Malaysia. This time she was permitted to do so,

1The complaint suggests that Bondanella took the call at the Transportation Security Intelligence Service, even though he was at the time serving as a watch officer of a different sub-agency of the Transportation Security Administration: the Transportation Security Operations Center.

Case3:06-cv-00545-WHA Document138 Filed08/22/08 Page6 of 19

10948

IBRAHIM v. DHS

but only after “enhanced” searches. She hasn’t returned to the United States.

Ibrahim brought this lawsuit against United Air Lines, Bondanella, the police, the city and county of San Francisco and numerous federal officials and agencies. 2 She asks for an injunction directing the government to remove her name from the No-Fly List and to cease certain policies and procedures implementing the No-Fly List, and also asserts causes of action under 42 U.S.C. § 1983, California tort law and the Constitution, see Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388 (1971). Ibrahim’s case against some defendants is still pending below, 3 but the district court dismissed Ibrahim’s claims against the federal government, the United Air Lines defendants and Bondanella, and entered final judgment as to them under Rule 54(b). Ibrahim appeals that dismissal.

Analysis

1. Ibrahim challenges placement of her name on the No-Fly List and the government’s policies and procedures implementing the No-Fly List. 4 We assume that section 702 of the

2Ibrahim also filed a petition directly with us pursuant to 49 U.S.C. § 46110(a), a statute that gives federal appellate courts jurisdiction to “review” the “order[s]” of the Transportation Security Administration. See pp.10949-52 infra. In June 2006, we held that, because Ibrahim is no longer a resident of California, her petition “must be filed ” in the D.C. Circuit. Ibrahim v. Dep’t of Homeland Sec. , No. 06-70574 (9th Cir. June 13, 2006) (unpublished). We transferred the petition to that court, which has stayed it pending the present lawsuit.
3Still before the district court are Ibrahim’s claims against the San Francisco Airport; the City of San Francisco; the County of San Francisco; the City of San Francisco Police Department; the police officers who Ibrahim claims were involved in her arrest and detention; and U.S. Investigations Services, Inc., the Virginia corporation that employed Bondanella and “provided” him to the Transportation Security Operations Center as a watch officer, First Am. Compl. ¶ 32; see p.10947 n.1 supra.
4Ibrahim claims that the government violated her right to procedural due process; her right to equal protection; her Fourth Amendment right to be

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IBRAHIM v. DHS

10949

Administrative Procedure Act waives sovereign immunity and provides Ibrahim with a cause of action.5 5 U.S.C. § 702; Glacier Park Found. v. Watt, 663 F.2d 882, 885 (9th Cir. 1981) (the APA gives individuals the right to challenge illegal agency action in court). We do not decide that issue, however, because the parties haven’t briefed it and the district court hasn’t had an opportunity to consider it.

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

[2] a. Placement of Ibrahim’s name on the No-Fly List. The

free from unreasonable searches and seizures; her right to freely exercise her religion; and her right to freely associate with other Muslims and Malaysians. See generally Justin Florence, Note, Making the No Fly List Fly: A Due Process Model for Terrorist Watchlists , 115 Yale L.J. 2148, 2159-65 (2006) (discussing constitutional rights that could be implicated by the No-Fly List). The parties haven’t briefed whether the Constitution in fact confers any of these rights on Ibrahim, so we do not consider the question.
5Ibrahim’s complaint doesn’t cite the Administrative Procedure Act, but it does name the relevant agencies as defendants and it asks for an injunction “to remove [her] name from the No-Fly List ” and to “remedy . . . the Constitutional violations in the maintenance, management, and dissemination of the No-Fly List. ” The APA claim is thus properly before us. See Sagana v. Tenorio, 384 F.3d 731, 737 (9th Cir. 2004) (plaintiff “need not plead specific legal theories in the complaint, so long as the other side receives notice as to what is at issue in the case ”).

Case3:06-cv-00545-WHA Document138 Filed08/22/08 Page8 of 19

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IBRAHIM v. DHS

district court determined, based on undisputed facts, 6 that an

agency called the Terrorist Screening Center, “actually com-

piles the list of names ultimately placed on the No-Fly List. ”

And the Terrorist Screening Center isn’t part of the Transpor-

tation Security Administration or any other agency named in

section 46110; it is part of the Federal Bureau of Investiga-

tion, as the government concedes. Gov’t’s Br. at 24;

see

Homeland Security Presidential Directive 6 (Sept. 16, 2003)

(ordering the Attorney General to “establish an organization

to consolidate the Government’s approach to terrorism

screening”). Because putting Ibrahim’s name on the No-Fly

List was an “order” of an agency not named in section 46110,

the district court retains jurisdiction to review that agency’s

order under the APA.

Gilmore v. Gonzales, 435 F.3d 1125, 1131-33 (9th Cir. 2006), is not to the contrary. Plaintiff in Gilmore wasn’t on the No-Fly List; he nevertheless complained about the Transportation Security Administration’s “Security Directive ” that required airlines to check his name against the list. See 49 U.S.C. § 114(h)(3) (the Transportation Security Administra-

6The government submitted the declaration of Joseph Salvator, a Deputy Assistant Administrator of the Transportation Security Administration, who represents that the Terrorist Screening Center “maintain[s]” the NoFly List. Salvator Decl. ¶ 9. Maintaining the list is part of the Terrorist Screening Center’s mission of “consolidating the federal government’s approach to terrorist screening and providing for the appropriate and lawful use of terrorist information in screening processes. ” Id. In addition to the No-Fly List, the center also maintains the Terrorist Screening Database, which is the government’s “consolidated” database of “known and suspected terrorists. ” Id. From that master database, the center “exports data” to the No-Fly List. Id.
Consistent with Salvator’s declaration, the government represented to the First Circuit that the Transportation Security Administration lacks authority to decide whose name goes on the No-Fly List. See Gov’t’s Memorandum in Opposition, Gray v. TSA, No. 05-2024 (1st Cir. Sept. 27, 2005) ( “[I]t is not TSA but another agency within the government that makes the determination that an individual . . . should be placed on . . . the No-Fly List. ”).

Case3:06-cv-00545-WHA Document138 Filed08/22/08 Page9 of 19

IBRAHIM v. DHS

10951

tion must “establish policies and procedures ” that “require[ ] air carriers” to prevent dangerous people from boarding). Gilmore claimed that the Constitution forbade the entire “[s]cheme” of checking his identification against a watchlist. See id. at 1131. He therefore challenged the Security Directive that required the airlines to check his identification, and we held that section 46110 gave us jurisdiction over that challenge.7 Gilmore did not have standing to challenge the compilation of the No-Fly List and we therefore had no occasion to consider whether placement of a name on the list is an “order” of the Transportation Security Administration that can be reviewed under section 46110. When we wrote that “[t]he NoFly and Selectee lists are Security Directives ” that are “issued by [the Transportation Security Administration],” we referred, not to the lists themselves, but to the Security Directive compelling airlines to check passengers’ identification against the lists. 435 F.3d at 1131 n.4.

The government also argues that, even if the decision to put Ibrahim’s name on the No-Fly List wasn’t an “order” of the Transportation Security Administration, it was “inescapably intertwined” with that agency’s orders and is therefore still reviewable under section 46110. But the statute provides jurisdiction to review an “order”— it says nothing about “intertwining,” escapable or otherwise. The government advances no good reason why the word “order” should be interpreted to mean “order or any action inescapably intertwined with it. ” Instead, the government cites two cases that use the phrase “inescapably intertwined ” to refer to claims that are inescapably intertwined with our review of an order. Gilmore, 435 F.3d at 1133 n.9 (section 46110 gives the federal appellate courts jurisdiction to hear a claim that the Transportation Security Administration’s Security Directives

7Plaintiff in Gilmore challenged the “constitutionality” of the No-Fly List, 435 F.3d at 1131, but we didn’t describe the details of his constitutional challenge because we determined that he lacked standing to bring it, id. at 1134.

Case3:06-cv-00545-WHA Document138 Filed08/22/08 Page10 of 19

10952

IBRAHIM v. DHS

are unconstitutionally vague); Foster v. Skinner, 70 F.3d 1084 (9th Cir. 1995) (section 46110 gives the federal appellate courts jurisdiction to hear a pilot’s challenge to the Federal Aviation Administration’s decision to suspend his license). In both cases, an agency named in section 46110 issued the order complained of, so in neither case did we consider whether an order issued by some other agency may be reviewed under section 46110.

Our interpretation of section 46110 is consistent not merely with the statutory language but with common sense as well. Just how would an appellate court review the agency’s decision to put a particular name on the list? There was no hearing before an administrative law judge; there was no notice-andcomment procedure.8 For all we know, there is no administrative record of any sort for us to review. See Florence, supra, at 2155-59 (the process of maintaining the No-Fly List is opaque). So if any court is going to review the government’s decision to put Ibrahim’s name on the No-Fly List, it makes sense that it be a court with the ability to take evidence.

[3] The No-Fly List is maintained by the Terrorist Screening Center, and section 46110 doesn’t apply to that agency’s actions. The district court therefore retains original jurisdiction over Ibrahim’s APA claim regarding placement of her name on the No-Fly List pursuant to 28 U.S.C. § 1331.9

8The lack of a notice and comment procedure cannot overcome a direct

statutory command, of course. For example, the Transportation Security

Administration may issue its Security Directives without first giving

notice and an opportunity to comment, yet the appellate courts review

those directives under section 46110 all the same.

See 49 U.S.C.

§ 114(l)(2)(A); Gilmore, 435 F.3d at 1131-33. Here, there is no express

statutory command authorizing our review, and the absence of a record

lends support to the view that Congress didn’t intend for us to do so.

9The government argued below, as it does here, that the No-Fly List

causes Ibrahim no concrete injury because she now lives in Malaysia and

doesn’t have a U.S. visa. But Ibrahim points out that she may apply for

a visa in the future and that, even if she does not, the fact that her name

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IBRAHIM v. DHS

10953

[4] b. Policies and procedures implementing the No-Fly

List. Ibrahim complains that the Transportation Security

Administration instructs airline personnel to detain and inter-

rogate any person whose name is on the No-Fly List, and that

because her name was on the list, she was

“stigmatized,

humiliated, and subjected to interrogations, delays, enhanced

searches, detentions, travel impediments, and . . . actual phys-

ical arrest.” She further alleges that the agency didn’t give her

an “opportunity to contest ” the placement of her name on the

No-Fly List before subjecting her to this treatment. Ibrahim

thus challenges the Transportation Security Administration’s

Security Directive implementing the No-Fly List, which

requires airlines to check passengers’ identification against

the No-Fly List and establishes other “policies and proce-

dures” to be followed if they find a passenger’s name on the

list.10 49 U.S.C. § 114(h)(3); see p.10950-51, supra. As we

held in Gilmore, the Security Directive is an “order” of the

Transportation Security Administration that is reviewable

under section 46110. Gilmore, 435 F.3d at 1133. Therefore,

section 46110 stripped the district court of the jurisdiction it

would otherwise have had over Ibrahim’s APA claim regard-

ing the government’s policies and procedures implementing

the No-Fly List.

is on the list still prevents her from “board[ing] a United States airline ” anywhere in the world. Whether Ibrahim has standing to bring a claim for removal of her name from the No-Fly List is highly fact-dependent, so the district court is in the best position to resolve it in the first instance. On remand, therefore, Ibrahim must show that she “is realistically threatened” with concrete injury in the future. Armstrong v. Davis, 275 F.3d 849, 861 (9th Cir. 2001) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983)). The district court should resolve this question before addressing the merits of Ibrahim’s APA claim regarding placement of her name on the No-Fly List.
10The precise policies and procedures mandated by the Security Directive are not known to Ibrahim or to us because the Security Directive is “sensitive security information” that the government maintains may not be disclosed to the public or in open court. Gov’t’s Br. at 22 n.7.

Case3:06-cv-00545-WHA Document138 Filed08/22/08 Page12 of 19

10954

IBRAHIM v. DHS

[5] 2. In addition to her claims for injunctive relief under the Administrative Procedure Act, Ibrahim is also suing federal officials and agencies under section 1983 and under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). But no Bivens-like cause of action is available against federal agencies or federal agents sued in their official capacities. FDIC v. Meyer, 510 U.S. 471, 485-86 (1994); Nurse v. United States , 226 F.3d 996, 1004 (9th Cir. 2000). And section 1983 only provides a remedy against persons acting under color of state law. See, e.g. , Cabrera v. Martin, 973 F.2d 735, 742 (9th Cir. 1992). Here, the federal defendants acted pursuant to federal laws. See, e.g., 49 U.S.C. § 114(h) (the Transportation Security Administration has authority to identify and prevent from boarding passengers who may threaten airline safety).

[6] Ibrahim reads our decision in Cabrera as making an exception to this rule where, as here, federal officials recruit local police to help enforce federal law. But we created no such exception in Cabrera; instead, we reaffirmed the longstanding principle that federal officials can only be liable under section 1983 where there is a “sufficiently close nexus between the State and the challenged action of the [federal actors] so that the action of the latter may be fairly treated as that of the State itself. ” Cabrera, 973 F.2d at 744 (internal quotation marks and citation omitted) (bracketed text in original). California had nothing to do with the federal government’s decision to put Ibrahim on the No-Fly List, nothing to do with the Transportation Security Administration’s Security Directives that told United Air Lines what to do when confronted with a passenger on the No-Fly List, and nothing to do with Bondanella’s decision to order the San Francisco police to detain Ibrahim. The police will, of course, have to answer for their own actions with respect to Ibrahim, but that part of the case is still before the district court. See p.10948 n.3 supra.

[7] Nor does section 1983 give Ibrahim a cause of action against United Air Lines and its employee, David Nevins,

Case3:06-cv-00545-WHA Document138 Filed08/22/08 Page13 of 19

IBRAHIM v. DHS

10955

because she hasn’t alleged that either party was acting under color of California or local law. Ibrahim’s claims against United and Nevins are based entirely on Nevins’s phone call to the local police. But Ibrahim points to no California or local law that required Nevins to place this call, so Ibrahim hasn’t alleged that he was acting on behalf of the state or local government. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982) (private persons are only state actors if their acts are “fairly attributable ” to the state). Nor does Ibrahim suggest that state or local officials were somehow involved in Nevins’s decision to place the call, so she hasn’t alleged that he conspired with state or local officials or engaged in “joint action” with them. See Dennis v. Sparks, 449 U.S. 24, 27-28 (1980).

[8] In short, all of Ibrahim’s section 1983 claims fail because none of the appellees now before us acted under color of state law.

[9] 3. Ibrahim also claims that defendants committed various torts. As for United Air Lines and David Nevins, her claims fail because these defendants’ only supposedly tortious act was Nevins’s phone call to the San Francisco police. That call is privileged under state law and thus cannot be the basis for tort liability. See Hagberg v. Cal. Fed. Bank FSB , 32 Cal. 4th 350, 364 (2004).

[10] Except for John Bondanella, whom we consider below, Ibrahim has sued the federal officials in their official capacities. These officials, like their employer, cannot be liable for state-law torts unless Congress has waived the United States’ sovereign immunity. Gibbons v. United States , 75 U.S. (8 Wall.) 269, 274-76 (1868). Ibrahim claims that Congress did so in the Federal Tort Claims Act, but that statute only waives sovereign immunity if a plaintiff first exhausts his administrative remedies. See 28 U.S.C. § 2675(a); McNeil v. United States, 508 U.S. 106, 113 (1993). Ibrahim didn’t do this before she filed her complaint, and she didn’t ask the dis-

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10956

IBRAHIM v. DHS

trict court to stay the litigation so she could attempt to do it while the litigation was pending. Dismissal with prejudice was therefore proper. See McNeil, 508 U.S. at 113.

4. Unlike all the other federal defendants, John Bondanella was sued in his individual capacity. Ibrahim claims Bondanella injured her and violated her constitutional rights when he ordered the San Francisco police to detain her at the airport. The district court dismissed him from the lawsuit on the theory that it lacked personal jurisdiction over him. On appeal, Bondanella defends that ruling. He didn’t argue below, and he doesn’t argue here, that the Federal Tort Claims Act preempts state tort law because he was acting within the scope of his federal employment, see 28 U.S.C. § 2679(c)-(d), so we don’t consider this or any other alternative defense.

[11] Bondanella lives in Virginia and has no ties to California, so the district court doesn’t have general jurisdiction over him. But the court does have specific jurisdiction under our three-pronged test: (1) Bondanella purposefully directed his action (namely, his order to detain Ibrahim) at California; (2) Ibrahim’s claim arises out of that action; and (3) jurisdiction is reasonable. See Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme , 433 F.3d 1199, 1205-06 (9th Cir. 2006) (en banc) (describing the three-part test).

Bondanella attaches great significance to the fact that he didn’t make the phone call, but only received it; therefore, he argues, he didn’t purposefully direct his action at California as required under the test’s first prong. We rejected this argument in Brainerd v. Governors of the University of Alberta , 873 F.2d 1257 (9th Cir. 1989), where we held that the Arizona district court had specific jurisdiction over Canadians who allegedly defamed an Arizonian over the telephone, even though the Canadians didn’t initiate the phone calls. Id. at 1259-60. It was enough that the Canadians’ statements were “performed for the very purpose of having their consequences felt in the forum state. ” Id. at 1260. There’s no question that

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IBRAHIM v. DHS

10957

Bondanella’s alleged order was “performed with the purpose of having ” its “consequences felt ” by someone in the San Francisco airport.

As for the second prong of the specific jurisdiction test, Bondanella argues that Ibrahim’s claims don’t arise out of his order to the police because her injuries were actually caused by her name being on the No-Fly List. But most of Ibrahim’s state-law claims are based on her detention, and there’s no indication that the No-Fly List caused the police to detain her. Quite the contrary, the government’s lawyer below represented that the Transportation Security Administration’s Security Directives say nothing at all about detaining passengers. And the complaint implies that Bondanella’s instructions were the proximate cause of the police’s decision to detain Ibrahim. Bondanella may deny this, but we must accept the allegations of the complaint on their face at this stage.

Third, Bondanella argues that it isn’t reasonable for a California district court to exercise jurisdiction over him. But because he purposefully directed his order toward California, we presume that jurisdiction is reasonable. Ziegler v. Indian River County , 64 F.3d 470, 476 (9th Cir. 1995). Bondanella can only overcome that presumption if he “present[s] a compelling case,” id., and he hasn’t done so. Like the defendants in Ziegler, who also caused California police to arrest a California resident, Bondanella’s “purposeful interjection into California was significant. ” Id. at 475. California has “a strong interest in providing an effective means of redress for its residents who are tortiously injured,” id. (internal quotation marks omitted), and doing so won’t infringe on the sovereignty of Bondanella’s home state of Virginia, see id. It’s not unreasonable to require Bondanella to come to California to answer for the harms he allegedly caused here.

[12] We therefore reverse the dismissal of Ibrahim’s Bivens claims and state-law claims against Bondanella. We affirm the dismissal of Ibrahim’s section 1983 claims against him

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IBRAHIM v. DHS

because, as explained above, Bondanella wasn’t acting under color of state law.

AFFIRMED in part, REVERSED in part and REMANDED. No costs.

N. RANDY SMITH, Circuit Judge, dissenting:
Ibrahim’s claims against the Terrorist Screening Center constitute a challenge to an order of the Transportation Security Administration and are therefore subject to 49 U.S.C. § 46110(a), depriving the district court of jurisdiction over Ibrahim’s claims against that agency. At the very minimum, Ibrahim’s claims against the Terrorist Screening Center are “inescapably intertwined” with an order of the Transportation Security Administration and are thus still subject to § 46110(a). See Gilmore v. Gonzales , 435 F.3d 1125, 1133 n.9 (9th Cir. 2006); see also Crist v. Leippe , 138 F.3d 801, 803 (9th Cir. 1998) (noting that district court retains jurisdiction to consider broad constitutional challenges but does not have jurisdiction to consider issues that are “ ‘inescapably intertwined with a review of the procedures and merits surrounding the FAA’s order’ ”) (quoting Mace v. Skinner , 34 F.3d 854, 858 (9th Cir. 1994). Therefore, I dissent from Part 1.a of the majority opinion.
Congress squarely delegated the responsibility for promulgating regulations and directives relating to the No-Fly List to the Transportation Security Administration in 49 U.S.C. §§ 114(h)(3) and 44903(j). Specifically, § 44903(j)(2)(E)(iii) provides that “[t]he Secretary of Homeland Security, in consultation with the Terrorist Screening Center, shall design and review, as necessary, guidelines, policies, and operating procedures for the collection, removal, and updating of data maintained, or to be maintained, in the no fly and automatic selectee lists. ” Id. § 44903(j)(2)(E)(iii). Additionally, the

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10959

Transportation Security Administration is charged with using

information developed by other government agencies to

“identify individuals on passenger lists who may be a threat

to civil aviation or national security ” and “if such an individ-

ual is identified, notify appropriate law enforcement agencies,

prevent the individual from boarding an aircraft, or take other

appropriate action with respect to that individual.

” Id.

§ 114(h)(3).

Congress provided in § 46110(a) that “a person disclosing a substantial interest in an order issued by [Transportation Security Administration] . . . 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. ” An agency’s decision is an order, and therefore subject to § 46110(a), if it “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[.]’ ” Crist, 138 F.3d at 804 (quoting Mace, 34 F.3d at 857). Our precedent requires us to construe the term “order” broadly. See Gilmore , 435 F.3d at 1132. In light of the statutory language detailed above and our decisions construing the term “order,” Ibrahim’s claims against the Terrorist Screening Center for placement of her name on the No-Fly List constitute a challenge to an order of the Transportation Security Administration. The district court therefore has no jurisdiction over the claims.

Even if the statutory framework did not clearly establish that Ibrahim’s claims against the Terrorist Screening Center constitute challenges to an order of the Transportation Security Administration and are therefore subject to § 461110(a), the district court would still lack jurisdiction because Ibrahim’s claims against the Terrorist Screening Center are “inescapably intertwined” with the claims that are unquestionably subject to that statute. Our prior cases compel this result. In

Case3:06-cv-00545-WHA Document138 Filed08/22/08 Page18 of 19

10960

IBRAHIM v. DHS

Mace, we held that the district court erred by dismissing a plaintiff’s broad constitutional challenge to the FAA’s power to revoke his mechanic’s certificate. 34 F.3d at 858-60. We further held that the district court erred by dismissing the claims because they were not “inescapably intertwined” with an order that was subject to exclusive appellate review under the precursor statute to § 46110(a). Id. at 858. In Gilmore, we held that the plaintiff’s due process challenge to the Transportation Security Administration’s identification policy fell within the jurisdictional reach of § 46110(a), because it was “ ‘inescapably intertwined’ with a review of the order[.] ” Gilmore, 435 F.3d at 1133 n.9. “[I]t squarely attack[ed] the orders issued by the TSA with respect to airport security. ” Id.

The majority distinguishes Gilmore, arguing that Gilmore (1) involved a claim against the Transportation Security Administration instead of the Terrorist Screening Center, as is the case here; and (2) did not decide whether the No-Fly List constitutes an order. But those are distinctions without difference. It is irrelevant whether we decided in Gilmore that the No-Fly List constitutes an order of the Transportation Security Administration. It is also of little significance to our instant inquiry that there may be a sparse or non-existent administrative record for an appellate court to review. What matters is that we follow the clear Congressional directive set forth in § 46110(a). As noted, the Transportation Security Administration is charged with developing — in consultation with the Terrorist Screening Center — the “necessary, guidelines, policies, and operating procedures for the collection, removal, and updating of data maintained, or to be maintained, in the no fly and automatic selectee lists. ” 49 U.S.C. § 44903(j)(2)(E)(iii). Given our holdings in Gilmore and Mace, that district courts lack jurisdiction to consider claims that are “inescapably intertwined ” with orders of the Transportation Security Administration, Ibrahim’s challenges against the Terrorist Screening Center for its role in placing Ibrahim’s name on the No-Fly List are subject to § 46110(a).

Case3:06-cv-00545-WHA Document138 Filed08/22/08 Page19 of 19

IBRAHIM v. DHS

10961

Therefore the district court appropriately dismissed those claims for lack of jurisdiction.

 
 Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page1 of 26

I JAMES McMANIS (40958) MARWA ELZANKALY (206658)
2 CHRISTINE PEEK (234573)
McMANIS FAULKNER 3 A Professional Corporation
50 W. San Fernando, 10th Floor 4 San Jose, CA 95113
Telephone: (408) 279-8700
5 Facsimile: (408) 279-3244
melzankaly@mcmanisfaulkner.com
6 cpeek@mcmanisfaulkner.com

7 Attorneys for Plaintiff, Rahinah Ibrahim

8 UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA 10
SAN FRANCISCO DIVISION 11

12 RAHINAH IBRAHIM, an individual,

CASE NO. C06-0545 WHA

13

Plaintiff,

SECOND AMENDED COMPLAINT FOR:

14 v.

1) 42 U.S.C. § 1983 - Violation of

15 DEPARTMENT OF HOMELAND

16

SECURITY; JANET NAPOLITANO in her official capacity as Secretary of the '

17

Department of Homeland Security;
. MICHAEL CHERTOFF, in his official

18

capacity as the former Secretary of the Department of Homeland Security; TOM

19

RIDGE, in his official capacity as the former Secretary of the Department of Homeland

Security; ERIC H. HOLDER, JR., in his 20 official capacity as Attorney General;

TERRORIST SCREENING CENTER· 21 LEONARD C. BOYLE, in his official'

22

capacity as Director of the Terrorist
SincrheeernoinffgicCiaelnctearp;aDciOtyNaNs AforAm.eBr UDCirEecLtLorA~f

23 the Terrorist Screening Center; FEDERAL

BUREAU OF INVESTIGATION; ROBERT 24 MUELLER, in his official capacity as

25

Director of the Federal Bureau of Investigation; ARTHUR M. CUMMINGS

II, in his official capacity as Executive ' 26 Assistant Director of the FBI's National

Security Branch; NATIONAL

27

MCOICUHNATEELRTEE. LRERIOTRERIS,MinChiEsNofTfiEciR~l

28 ca aci as Director of the National

Equal Protection 2) Bivens - Violation of Equal
Protection 3) 42 U.S.C. § 1983 - Violation of
Fourth Amendment 4) Bivens - Violation of Fourth
Amendment 5) 42 U.S.C. § 1983 - Violation of
First Amendment Right to
Freedom of Religion 6) Bivens - Violation of First
Amendment Right to Freedom of Religion 7) 42 U.S.C. § 1983 - Violation of First Amendment Right to Freedom of Association 8) Bivens - Violation of First Amendment Right to Freedom of Association 9) CA Civ. Code § 52.1 - Interference With Exercise of Civil Rights 10) False Imprisonment 11) Intentional Infliction of Emotional
Distress 12) Negligent Infliction of Emotional
Distress 13) Violation Of The United States

Second Amended Complaint

Case No. C06-0545 WHA

Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page2 of 26

1 Counterterrorism Center; DEPARTMENT

Constitution and the APA, Under

OF STATE; HILARY CLINTON, in her

The APA And The First, Fourth,

2 official capacity as Secretary of State; SAN

Fifth And Fourteenth Amendments

FRANCISCO AIRPORT; CITY AND

To The United States Constitution

3 COUNTY OF SAN FRANCISCO; SAN

FRANCISCO POLICE DEPARTMENT;

DEMAND FOR JURY TRIAL

4 RICHARD PATE, an individual; JOHN

BONDANELLA, an individual; JOHN

5 CUNNINGHAM, an individual;

ELIZABETH MARON, an individual; US

6 INVESTIGATIONS SERVICES, INC., a

Virginia Corporation; and DOES 13 through

7 100, inclusive.

8

Defendants.

9

10

11 Plaintiff hereby alleges as follows:

12

INTRODUCTORY STATEMENT

13

I. The above-entitled action is brought under the United States Constitution, Bivens

14 v. Six Unknown Named Agents ofthe Federal Bureau ofNarcotics, 403 U.S. 388 (1971), 5

15 U.S.C. § 701 et seq., 28 U.S.C. § 2201, 42 U.S.C. § 1983, the Constitution of the State of

16 California, and California state law, on the grounds that defendants, among other things, violated

17 the federal and state constitutional rights of plaintiff, granted to her under the First, Fourth, Fifth

18 and Fourteenth Amendments to the United States Constitution, and article I, sections 3, 4, 7, 13

19 and 15 of the California Constitution.

20

JURISDICTION AND VENUE

21

2. This case arises under the United States Constitution and the laws of the United

22 States. This Court has jurisdiction over this action pursuant to Article III of the United States

23 Constitution, 5 U.S.C § 552a, and 28 U.S.C. §§ 1331, 1343, 1361, and 1367(a), and pursuant to

24 Ibrahim v. Department ofHomeland Security (9th Cir. 2008) 538 F.3d 1250. Venue is proper in

25 this district, pursuant to 28 U.S.C. § 1391(e), because defendants include officers and employees

26 of the United States and the acts and conduct complained of herein occurred in this judicial

27 district. 28

Second Amended Complaint

2 Case No. C06-0545 WHA

Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page3 of 26

I

INTRADISTRICT ASSIGNMENT

2

3. Assignment of this action to the San Francisco Division is proper under Civil

3 Local Rule 3-2(d), because a substantial part of the events giving rise to the claims alleged herein

4 occurred in the County of San Mateo.

5

PARTIES

6

4. Plaintiff, RAHINAH IBRAHIM, ("IBRAHIM"), is an individual, who obtained

7 her Doctorate Degree at Stanford University, while in the United States on a student visa, and

8 currently resides in the country of Malaysia. IBRAHIM has no criminal record and no links to

9 terrorist activity.

10

5. On information and belief, defendant, ERICH. HOLDER JR. ("HOLDER"), is

11 the current Attorney General of the United States and the head of the United States Department

12 of Justice. He is sued here in his official capacity. Under Homeland Presidential Security

13 Directive-6 ("HPSD-6") and its implementing memorandum of understanding dated September

14 16, 2003 ("2003 MOU"), the Attorney General is responsible for establishing an organization to

15 consolidate the United States Government's approach to terrorist screening and the use of

16 information in the screening process, and for coordinating with the Secretary of State, the

17 Secretary of the Depaiiment of Homeland Security, and the Director of Central Intelligence in

18 this effoti. Pursuant to this directive, the TERRORIST SCREENING CENTER ("TSC"), was

19 established.

20

6. On information and belief, defendant, FEDERAL BUREAU OF

21 INVESTIGATION ("FBI"), is a department of the United States Government and is included in

22 the Department of Justice. Through the TSC, the FBI maintains a government watchlist and

23 transmits this list to the Transportation Security Administration ("TSA"). The airlines are

24 required to check their passenger lists against the No-Fly List.

25

7. On information and belief, defendant, ROBERT MUELLER ("MUELLER"), is

26 the director of the FBI, and is being sued in his official capacity as such.

27

8. On information and belief, defendant, TSC, is a department of the United States

28 Government. Its mission is to maintain a list of"Terrorist Identities Information" for agencies of

Second Amended Complaint

3 Case No. C06-0545 WHA

Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page4 of 26

I the United States Government, including the TSA, a sub-agency of the Department of Homeland

2 Security ("DHS"), with authority to regulate airport security. The TSC is responsible for

3 maintaining a consolidated terrorist screening database (the "TSDB") which includes the "No-

4 Fly List." The TSC determines who is on the list that makes up the No-Fly list.

5

9. On information and belief, defendant, ARTHUR M. CUMMINGS, II

6 ("CUMMINGS"), is the Executive Assistant Director of the FBI's National Security Branch, and

7 oversees the TSC. He is sued here in his official capacity.

8

10. On information and belief, defendant, LEONARD C. BOYLE ("BOYLE") is the

9 Director of the TSC. He is sued here in his official capacity. The Director of the TSC is

I 0 responsible for establishing procedures to address repeated misidentification of any person, and

11 review the list and delete or correct any erroneous or outdated information.

12

11. On information and belief, defendant, DONNA A. BUCELLA ("BUCELLA"), is

13 the former Director of the TSC. She is sued here in her official capacity.

14

12. On information and belief, defendant, DHS, is a department of the United States

15 Government, created on October 8, 2001, to develop and coordinate the implementation ofa

16 comprehensive national strategy to secure the United States from terrorist threats or attacks.

17 Under HPSD-6 and the 2003 MOU, the DHS is responsible for staffing the TSC, along with the

18 DEPARTMENT OF STATE ("DOS"), Department of Justice, and other federal departments and

19 agencies.

20

13. On information and belief, defendant, JANET NAPOLITANO

21 ("NAPOLITANO"), is the current Secretary and head of the Department of Homeland Security.

22 She is sued here in her official capacity. Under HPSD-6 and the 2003 MOU, the Secretary of the

23 DHS is responsible for, inter alia, (a) coordinating with the Attorney General, acting through the

24 Director of the FBI, to establish the TSC, (b) coordinating with the Attorney General, acting

25 through the Director of the TSC, to review alien nominations to the TSC's database; (c) in

26 consultation with the other parties to the 2003 MOU and the Director of the TSC, establishing

27 necessary guidelines and criteria to, inter alia, "initiate appropriate law enforcement or other

28 governmental action, if any, when a person submitted for query by a private sector entity is

Second Amended Complaint

4 Case No. C06-0545 WHA

Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page5 of 26

1 identified as a person in the terrorist screening database"; (d) reviewing each nomination to the

2 TSC's database and determining whether to include that person in records that can be accessed

3 by State, local, territorial, and trial officials for homeland security purposes.

4

14. On information and belief, defendant, MICHAEL CHERTOFF ("CHERTOFF"),

5 is a former Secretary and head of the Department of Homeland Security. He is sued here in his

6 official capacity.

7

15. On information and belief, defendant, TOM RIDGE ("RIDGE"), is a former

8 Secretary and head of the Department of Homeland Security. He is sued here in his official

9 capacity.

10

16. On information and belief, defendant, NATIONAL COUNTERTERRORISM

11 CENTER ("NCTC") serves as the primary organization in the United States government for

12 analyzing and integrating all intelligence regarding terrorism, and provides information to the

13 TSC.

14

17. On information and belief, defendant, MICHAEL E. LEITER ("LEITER"), is the

15 Director of the NCTC. He is sued here in his official capacity.

16

18. On information and belief, defendant, DOS, is a department of the United States

17 Government. Under HPSD-6 and the 2003 MOU, the DOS is responsible for staffing the TSC,

18 along with the DHS, Department of Justice, and other federal departments and agencies.

19

19. On information and belief, defendant, HILARY CLINTON ("CLINTON") is the

20 current Secretary and head of the DOS. She is sued here in her official capacity. Under HPSD-6

21 and the 2003 MOU, the Secretary of the DOS is responsible for, inter a/ia, (a) coordinating with

22 the Attorney General, acting through the Director of the FBI, to establish the TSC, and (b)

23 reviewing each nomination to the TSC's database and determining whether to include the person

24 in records that may be accessed by foreign governments cooperating with the United States to

25 fight global terrorism.

26

20. On information and belief, defendant, CITY AND COUNTY OF SAN

27 FRANCISCO ("CCSF") is a municipal entity, which also oversees the SAN FRANCISCO

28 POLICE DEPARTMENT. On information and belief, San Francisco International Airport

Second Amended Complaint

5 Case No. C06-0545 WHA

Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page6 of 26

1 ("SFO"), is a part of the CCSF.

2

21. On information and belief, defendant, SAN FRANCISCO POLICE

3 DEPARTMENT ("SFPD"), is a police department which has jurisdiction over events occurring

4 at SFO.

5

22. On information and belief, defendant, RICHARD PATE ("PATE"), is a Police

6 Sergeant for SFPD.

7

23. On information and belief, defendant, J. CUNNINGHAM ("CUNNINGHAM"),

8 badge number 236, is a police officer of the SFPD.

9

24. On information and belief, defendant, ELIZABETH MARON ("MARON"), is a

10 police officer of the SFPD.

11

25. On information and belief, defendant, JOHN BONDANELLA,

12 ("BONDANELLA"), from June, 2004, through May, 2005, was an employee of US

13 INVESTIGATIONS SERVICES, INC. ("USIS"), and was serving as a watch officer in the

14 TRANSPORTATION SECURITY OPERATIONS CENTER ("TSOC").

15

26. On information and belief, USIS is a corporation, organized and existing under

16 the laws of the State of Virginia, but which does business and has offices all over the United

17 States, including all over California. USIS provides intelligence and staffing services to various

18 entities, including federal agencies. USIS was the employer of defendant, BONDANELLA, and

19 provided BONDANELLA as a watch officer for the TSOC from June, 2004 through May, 2005.

20 The TSA disburses "Federal Security Directors" ("FSDs") to all of the commercial airlines in the

21 US, to lead and coordinate security activities at the respective airlines. The TSOC serves as the

22 point of contact for security related operations, incidents, or crises in aviation and all surface

23 modes of transportation, and provides guidance to FSD' s as to how to handle security related

24 issues.

25

27. The true names or capacities, whether individual, corporate, associate or

26 otherwise of defendants, DOES 13 through I00, inclusive, are unknown to plaintiff, who

27 therefore sues said defendants by such fictitious names. Plaintiff prays leave to amend the

28 complaint to show the true names and capacities of defendants when the same have been

Second Amended Complaint

6 Case No. C06-0545 WHA

Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page7 of 26

1 ascertained.

2

GENERAL ALLEGATIONS

3

28. Plaintiff brings this lawsuit to challenge defendants' administration, management

4 and implementation of the TSC's TSDB, including the "No-Fly List", a list circulated to

5 commercial airlines and security personnel with directions to detain and question any passenger

6 whose name matches or is similar to one on the No-Fly List. Plaintiff further brings this lawsuit

7 to challenge the placement of her own name on any government list, including the No-Fly List.

8

29. Defendants began implementing the No-Fly List in November, 2001. Since then,

9 it has resulted in hundreds, if not thousands, of innocent passengers being routinely stopped,

10 questioned, searched, and sometimes physically arrested, as in this case. Defendants do not

11 inform individuals that they have been placed on any government list or why they are on the list.

12 Moreover, individuals whom defendants determine are not security threats continue to be

13 identified on any government list, including the No-Fly List. Passengers, therefore, have no

14 meaningful opportunity to challenge their identification.

15

30. For several years before the terrorist attacks of September 11, 2001, the U.S.

16 Government issued directives identifying persons who were deemed to pose a threat to civil

17 aviation. In November, 2001, the TSA was formed and assumed responsibility for compiling

18 and administering these directives, with the assistance of the TSC. Today, defendants maintain

19 at least two watch lists of individuals perceived to be threats to aviation security. The "no-fly"

20 list contains names of people which airlines are prohibited from transporting. The "selectee" list

21 contains names of passengers who must go through additional security screening before boarding

22 an aircraft. These two lists collectively are referred to as the "No-Fly List." On information and

23 belief, the No-Fly List contains thousands of names, primarily names of individuals of Muslim or

24 Middle Eastern descent.

25

31. Until November, 2002, defendants denied the existence of the No-Fly List. Until

26 today, defendants have refused to disclose important information regarding the No-Fly List,

27 including the criteria for placing names on or removing names from the No-Fly List, procedures

28 for amending information on the List such as when it is determined that an individual is not a

Second Amended Complaint

7 Case No. C06-0545 WHA

Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page8 of 26

1 security threat, or rules for maintaining or managing the List. Because defendants have refused

2 to provide any of this information, defendants may be using race, religion, ethnicity, national

3 origin, or the exercise of protected First Amendment rights as factors in maintenance and

4 implementation of the No-Fly List.

5

32. On information and belief, after the TSC became operational in 2003, it became

6 responsible for maintaining and updating a consolidated ten-orist screening database, including

7 the No-Fly List, based on information received from the predecessor organization ofthe NCTC

8 (the Terrorist Threat Integration Center), the FBI, and other federal agencies. Pursuant to the

9 2003 MOU, the TSC was to ensure that available information possessed by state, local,

10 territorial, and tribal governments was considered in determinations by the TSC.

11

33. On information and belief, defendants make available continually updated

12 versions of the No-Fly List to commercial airlines in the United States. The 15 domestic airlines

13 have almost half a million employees and, on information and belief, a substantial percentage of

14 these employees have access to the No-Fly List. On information and belief, the No-Fly List is

15 also provided to customs and immigration agents, airport security, and law enforcement

16 agencies. Moreover, info1mation from the No-Fly List is inputted into other security databases,

17 including those maintained by the NCTC, the FBI, the DOS, the DHS, the TSA, or other federal

18 agencies. On information and belief, defendants and the heads of their departments instruct

19 recipients of the No-Fly List to not allow on a flight those whose name is similar or identical to a

20 name on the No-Fly List. Even ifthe passenger's actual identity is verified, a boarding pass is

21 issued which is stamped with a mark to indicate the passenger must be subjected to enhanced

22 screening, also refen-ed to as "secondary screening."

23

34. Innocent passengers subjected to this treatment are stigmatized, humiliated, and

24 subjected to inten-ogations, delays, enhanced searches, detentions, travel impediments, and

25 sometimes actual physical an-est without a wan-ant or any probable cause. This treatment is

26 completely unexpected as they have no notice that they have been placed on the No-Fly List.

27

35. Plaintiff, IBRAHIM, was subjected to this humiliating treatment on January 2,

28 2005, at the SFO, while traveling to Malaysia, through an initial stop in Hawaii.

Second Amended Complaint

8 Case No. C06-0545 WHA

Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page9 of 26

1

36. IBRAI:IIM is a citizen of Malaysia. She is a Muslim woman who is clearly

2 identifiable as Muslim as she wears a head scarf, also known as a "hijab." IBRAHIM has no

3 criminal record and no ties whatsoever to any terrorist activity. At the time of the incident,

4 IBRAHIM was a student at Stanford University, studying to obtain her Doctorate Degree (PhD),

5 and lawfully in the United States on a student visa. IBRAHIM's student visa was valid from

6 September 26, 2001 to January 11, 2007. She was preparing her thesis on affordable housing

7 and on January 2, 2005, IBRAHIM was scheduled to fly to Kuala Lumpur, Malaysia, with a

8 changing flight in Hawaii, to present her research findings at a conference sponsored by Stanford

9 University. She was scheduled to return to Stanford in March, 2005, to submit her dissertation

10 and complete her PhD.

11

37. Prior to her trip, in October, 2004, IBRAHIM had a hysterectomy surgery at

12 Stanford University Medical Hospital, with an extremely invasive abdominal approach.

13 IBRAHIM suffered severe complications from her surgery which extended her recovery period

14 for months. IBRAHIM also suffered back and abdominal pain from her surgery and was

15 regularly taking medication for these complications.

16

38. On January 2, 2005, at approximately 7:00 a.m., IBRAHIM an-ived at SFO with

17 her fomieen-year old daughter. IBRAHIM and her daughter were scheduled to leave on a United

18 Airlines flight from SFO, at 9:00 a.m. IBRAHIM and her daughter, escorted by IBRAHIM's

19 friend, went to the ticket counter to obtain their boarding passes and check in their bags.

20 IBRAHIM informed United Airlines of her medical complications and requested wheelchair

21 transportation to the airline gate.

22

39. At that time, a United Airlines employee, David Nevins, approached IBRAHIM

23 and asked to see her tickets. Nevins called SFPD and informed them that IBRAHIM was on the

24 No-Fly List. At the request of Nevins, defendants, CUNNINGHAM and PATE, of SFPD,

25 an-ived at the airport. On information and belief, PATE checked the No-Fly List for

26 IBRAHIM's name. He called defendant, BONDANELLA, of the TSIS in Washington, D.C.

27 Defendant, BONDANELLA, told defendant, PATE, to not allow IBRAHIM on the flight, to

28 contact the FBI, and to detain IBRAHIM for questioning. A SFPD officer, whose name is not

Second Amended Complaint

9 Case No. C06-0545 WHA

Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page10 of 26

1 known to plaintiff, also arrived at the scene.

2

40. Meanwhile, IBRAHIM stood waiting for an hour and a half, with no wheelchair,

3 while she suffered from back and abdominal pain. IBRAHIM's friend informed the SFPD

4 officers several times ofIBRAHIM's medical condition.

5

41. At 8:45 a.m., fifteen minutes before IBRAHIM's flight was scheduled to leave,

6 defendant, CUNNINGHAM, told IBRAHIM that she was being arrested. IBRAHIM was

7 handcuffed by CUNNINGHAM, with her hands placed behind her back, in the middle of the

8 airport, in front of her fourteen-year old daughter, and everyone else at SFO. IBRAHIM was not

9 informed as to why she was being arrested. Instead, she was taken to the SFPD police station,

10 escorted by three male officers.

11

42. Upon arriving at the police station, IBRAHIM was searched by defendant,

12 MARON. During this search, MARON attempted to remove IBRAHIM's hijab and searched

13 under her hijab in public view, before the other male officers. On information and belief, the

14 police officers also informed the FBI ofIBRAHIM's detention.

15

43. IBRAHIM was placed in a holding cell at the SFPD police station for

16 approximately two hours while she continued to suffer from severe back and abdominal pain.

17 IBRAHIM was not given her medication when she asked for it to relieve her pain. Eventually,

18 the paramedics were called as a result ofIBRAHIM's medical condition. IBRAHIM was finally

19 given her medication after the paramedics left.

20

44. On information and belief, the FBI finally requested SFPD to release IBRAHIM

21 at approximately 11 :15 a.m., over two hours after her flight had left. IBRAHIM was given no

22 information as to why her name was on the No-Fly List.

23

45. Defendants represented to plaintiff that her name had been removed from

24 the No-Fly List. The following day, on January 3, 2005, IBRAHIM discovered that she was still

25 on the No-Fly List when she attempted to fly again. After some effort, IBRAHIM was finally

26 allowed to fly to Kuala Lumpur, Malaysia. At SFO, however, and at every stop over, IBRAHIM

27 was publicly subjected to enhanced searches before boarding any flights.

28

46. On March 24, 2005, plaintiff submitted a request for Passenger Identity

Second Amended Complaint

IO Case No. C06-0545 WHA

Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page11 of 26

1 Verification to the TSA, the only procedure then available, in an attempt to clear her name if the

2 issue was simply a matter of misidentification. A response was not issued to IBRAHIM's

3 request until approximately one year later, in March, 2006, after this action was filed. The

4 response, however, did not even clarify IBRAHIM'S "No-Fly List" status and instead, simply

5 stated that if "it has been determined that a correction to records is warranted, these records have

6 been modified."

7

47. Moreover, on April 14, 2005, IBRAHIM's visa was revoked by letter from the

8 United States Embassy in Malaysia. The letter cites to Section 212(a)(3)(B) of the Immigration

9 and Nationality Act as the basis for the revocation of her visa. That section provides, in part, that

10 any "alien" who "a consular officer, the Attorney General, or the Secretary of Homeland

11 Security knows, or has reasonable ground to believe, is engaged in or is likely to engage after

12 entry in any terrorist activity" is "inadmissible." 8U.S.C.§l182(a)(3)(b).

13

48. IBRAHIM is informed and believes, and thereon alleges, that defendants do not

14 remove individuals from the No-Fly List and other related watch lists, even when it would be

15 appropriate to do so because, among other reasons, the individual has been misidentified or

16 incorrectly placed on the list.

17

49. IBRAHIM is informed and believes, and thereon alleges, that defendants do not

18 train their employees to determine when modification or removal of information on the No-Fly

19 List is necessary, and have not implemented policies to ensure that modification or removal of

20 names occurs when appropriate.

21

50. On July 1, 2005, plaintiff filed a claim with the City and County of San Francisco

22 for her damages suffered as a result of defendants' conduct. On September 8, 2005, the City and

23 County of San Francisco issued a letter, also rejecting plaintiffs claim.

24

FIRST CAUSE OF ACTION

25

(42 U.S.C. § 1983 - Equal Protection -Against Defendants SFO,

CCSF, SFPD, PATE, CUNNINGHAM, and MARON) 26

51. Plaintiff re-alleges paragraphs 1 through 50 above and incorporates them herein

27

by reference.

28

Second Amended Complaint

11 Case No. C06-0545 WHA

Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page12 of 26

1

52. In doing the acts complained of herein, defendants deprived plaintiff of her right

2 to Equal Protection under the United States Constitution as set forth under the Fourteenth

3 Amendment to the United States Constitution;

4

53. IBRAHIM's name was placed on the No-Fly List. Moreover, defendants arrested

5 IBRAHIM for several hours, although they lacked a warrant, probable cause, or any reasonable

6 belief that she had committed a crime. IBRAHIM is informed and believes, and thereon alleges,

7 that defendants made the arrest despite these obvious deficiencies, because they perceived she

8 was Muslim and a citizen of Malaysia. On information and belief, defendants acted in a

9 discriminatory manner, with the intent to discriminate on the basis ofIBRAHIM's religious

10 beliefs and her national origin as a citizen of Malaysia.

11

54. Defendants, in committing the acts herein alleged, were acting under color of state

12 law.

13

55. Defendants were acting in accordance with a custom, policy and/or practice of the

14 SFO, the SFPD, and CCSF in violating plaintiffs constitutional rights as set forth above.

15

56. As a direct and proximate result of defendants' wrongful acts alleged herein,

16 plaintiff suffered severe damages, including humiliation and damage to her reputation, physical

17 pain, emotional distress, and deprivation of her constitutional rights, according to proof at the

18 time of trial.

19

57. Defendants committed the actions alleged herein maliciously, fraudulently,

20 oppressively and with the wrongful intention of injuring plaintiff. Defendants acted with an

21 improper motive amounting to malice and with conscious disregard of plaintiffs rights. As

22 such, plaintiff is entitled to recover punitive damages from defendants in an amount according to

23 proof at the time of trial.

24

SECOND CAUSE OF ACTION

25

(Bivens - Equal Protection - Against Defendant BONDANELLA)

26

58. Plaintiff re-alleges paragraphs 1through57 above and incorporates them herein

27 by reference.

28

59. In doing the acts complained of herein, defendant BONDANELLA deprived

Second Amended Complaint

12 Case No. C06-0545 WHA

Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page13 of 26

1 plaintiff of her right to Equal Protection under the United States Constitution as set forth under

2 the Fourteenth Amendment to the United States Constitution;

3

60. BONDANELLA directed the SFPD to anest IBRAHIM although he knew they

4 lacked a warrant, probable cause, or any reasonable belief that she had committed a crime.

5 IBRAHIM is informed and believes, and thereon alleges, that BONDANELLA gave this

6 direction despite these obvious deficiencies, because he believed she was Muslim and a citizen

7 of Malaysia. On information and belief, BONDANELLA acted in a discriminatory manner, with

8 the intent to discriminate on the basis ofIBRAHIM's religious beliefs and her national origin as

9 a citizen of Malaysia.

10

61. In committing the acts herein alleged, BONDANELLA was acting under color of

11 federal law.

12

62. As a direct and proximate result ofBONDANELLA's wrongful acts alleged

13 herein, plaintiff suffered severe damages, including humiliation and damage to her reputation,

14 physical pain, emotional distress, and deprivation of her constitutional rights, according to proof

15 at the time of trial.

16

63. BONDANELLA committed the actions alleged herein maliciously, fraudulently,

17 oppressively and with the wrongful intention of injuring plaintiff. BONDANELLA acted with

18 an improper motive amounting to malice and with conscious disregard of plaintiffs rights. As

19 such, plaintiff is entitled to recover punitive damages from BONDANELLA in an amount

20 according to proof at the time of trial.

21

THIRD CAUSE OF ACTION

22

(42 U.S.C. § 1983 - Fourth Amendment - Against Defendants SFO,

CCSF, SFPD, PATE, CUNNINGHAM, and MARON) 23

64. Plaintiff re-alleges paragraphs 1 through 63 above and incorporates them herein

24

by reference.

25

65. In doing the acts complained of herein, defendants deprived plaintiff of her right

26

against unreasonable searches and seizures under the United States Constitution as set forth

27

under the Fourth Amendment to the United States Constitution;

28

Second Amended Complaint

13 Case No. C06-0545 WHA

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1

66. IBRAHIM's name was placed on the No-Fly List. Moreover, defendants arrested

2 IBRAHIM for several hours and searched her, although they lacked a warrant, probable cause, or

3 any reasonable belief that she had committed a crime.

4

67. In committing the acts herein alleged, defendants were acting under color of state

5 law.

6

68. Defendants were acting in accordance with a custom, policy and/or practice of the

7 SFO, the SFPD, and CCSF in violating plaintiffs constitutional rights as set forth above.

8 Plaintiff is informed and believes, and thereon alleges, that defendants' actions alleged herein

9 were the direct and proximate result of the San Francisco Airport's, CCSF's and the SFPD's

10 failure adequately to train SFPD officers on what is required under the Fourth Amendment and

11 the case law interpreting it to arrest a suspect lawfully, and specifically on whether an arrest may

12 be made on the basis of an alleged placement on a government watch list. Such failure amounts

13 to deliberate indifference to the rights of persons with whom the SFPD comes into contact.

14

69. As a direct and proximate result of defendants' wrongful acts alleged herein,

15 plaintiff suffered severe damages, including humiliation and damage to her reputation, physical

16 pain, emotional distress, and deprivation of her constitutional rights, according to proof at the

17 time of trial.

18

70. Defendants committed the actions alleged herein maliciously, fraudulently,

19 oppressively and with the wrongful intention of injuring plaintiff. Defendants acted with an

20 improper motive amounting to malice and with conscious disregard of plaintiffs rights. As

21 such, plaintiff is entitled to recover punitive damages from defendants in an amount according to

22 proof at the time of trial.

23

FOURTH CAUSE OF ACTION

24

(Bivens - Fourth Amendment - Against Defendant BONDANELLA)

25

71. Plaintiff re-alleges paragraphs 1 through 70 above and incorporates them herein

26 by reference.

27

72. In doing the acts complained of herein, BONDANELLA deprived plaintiff of her

28 right against unreasonable searches and seizures under the United States Constitution as set forth

Second Amended Complaint

14 Case No. C06-0545 WHA

Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page15 of 26

I under the Fourth Amendment to the United States Constitution;

2

73. BONDANELLA directed defendants to an-est IBRAHIM, although he knew they

3 lacked a warrant, probable cause, or any reasonable belief that IBRAHIM had committed a

4 crime. BONDANELLA's direction proximately caused plaintiffs arrest.

5

74. In committing the acts herein alleged, BONDANELLA was acting under color of

6 federal law.

7

75. As a direct and proximate result ofBONDANELLA's wrongful acts alleged

8 herein, plaintiff suffered severe damages, including humiliation and damage to her reputation,

9 physical pain, emotional distress, and deprivation of her constitutional rights, according to proof

10 at the time of trial.

11

76. BONDANELLA committed the actions alleged herein maliciously, fraudulently,

12 oppressively and with the wrongful intention of injuring plaintiff. BONDANELLA acted with

13 an improper motive amounting to malice and with conscious disregard of plaintiffs rights. As

14 such, plaintiff is entitled to recover punitive damages from BONDANELLA in an amount

15 according to proof at the time of trial.

16

FIFTH CAUSE OF ACTION

17

(42 U.S.C. § 1983- Freedom of Religion -Against Defendants SFO,

CCSF, SFPD, PATE, CUNNINGHAM, and MARON) 18

77. Plaintiff re-alleges paragraphs 1 through 76 above and incorporates them herein

19

by reference.

20

78. In doing the acts complained of herein, defendants deprived plaintiff of her

21

freedom of religion under the United States Constitution as set forth under the First Amendment

22

to the United States Constitution;

23

79. Plaintiffs name was placed on the No-Fly List. Plaintiff is an identifiable

24

Muslim woman who wears the hijab. Moreover, defendants arrested IBRAHIM for several

25

hours, although they lacked a warrant, probable cause, or any reasonable belief that she had

26

committed a crime. Plaintiff is informed and believes, and thereon alleges, that defendants

27

an-ested her because of her protected religious expression and because they perceived she was

28

Second Amended Complaint

15 Case No. C06-0545 WHA

Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page16 of 26

I Muslim

2

80. Defendants, in committing the acts herein alleged, were acting under color of state

3 law.

4

81. Defendants were acting in accordance with a custom, policy and/or practice of the

5 SFO, the SFPD, and CCSF in violating plaintiffs constitutional rights as set forth above.

6

82. As a direct and proximate result of defendants' wrongful acts alleged herein,

7 plaintiff suffered severe damages, including humiliation and damage to her reputation, physical

8 pain, emotional distress, and deprivation of her constitutional rights, according to proof at the

9 time of trial.

10

83. Defendants committed the actions alleged herein maliciously, fraudulently,

11 oppressively and with the wrongful intention of injuring plaintiff. Defendants acted with an

12 improper motive amounting to malice and with conscious disregard of plaintiffs rights. As

13 such, plaintiff is entitled to recover punitive damages from defendants in an amount according to

14 proof at the time of trial.

15

SIXTH CAUSE OF ACTION

16 (Bivens - First Amendment Freedom of Religion - Against Defendant BONDANELLA)

17

84. Plaintiff re-alleges paragraphs I through 83 above and incorporates them herein

18 by reference.

19

85. In doing the acts complained of herein, BONDANELLA deprived plaintiff of her

20 freedom of religion under the United States Constitution as set forth under the First Amendment

21 to the United States Constitution;

22

86. Plaintiff is informed and believes, and thereon alleges, that BONDANELLA

23 directed defendants to arrest her because he believed she was Muslim.

24

87. In committing the acts herein alleged, BONDANELLA was acting under color of

25 federal law.

26

88. As a direct and proximate result ofBONDANELLA's wrongful acts alleged

27 herein, plaintiff suffered severe damages, including humiliation and damage to her reputation,

28 physical pain, emotional distress, and deprivation of her constitutional rights, according to proof

Second Amended Complaint

16 Case No. C06-0545 WHA

Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page17 of 26

1 at the time of trial.

2

89. BONDANELLA committed the actions alleged herein maliciously, fraudulently,

3 oppressively and with the wrongful intention of injuring plaintiff. BONDANELLA acted with

4 an improper motive amounting to malice and with conscious disregard for plaintiffs rights. As

5 such, plaintiff is entitled to recover punitive damages from BONDANELLA in an amount

6 according to proof at the time of trial.

7

SEVENTH CAUSE OF ACTION

8

(42 U.S.C. § 1983- First Amendment Right to Freedom of Association -Against

Defendants SFO, CCSF, SFPD, PATE, CUNNINGHAM, and MARON) 9

90. Plaintiff re-alleges paragraphs 1 through 89 above and incorporates them herein

10

by reference.

11

91. In doing the acts complained of herein, defendants deprived plaintiff of her

12

freedom of association under the United States Constitution, which is protected under the First

13

Amendment to the United States Constitution;

14

92. Plaintiffs name was placed on the No-Fly List. Plaintiff is an identifiable

15

Muslim woman who wears the hijab. Moreover, defendants arrested IBRAHIM for several

16

hours, although they lacked a warrant, probable cause, or any reasonable belief that she had

17

committed a crime. Defendants violated plaintiffs freedom of association in that, on

18

information and belief, defendants arrested plaintiff based on her association with the Muslim

19

community or the Islamic religion, and based on her national origin.

20

93. Defendants, in committing the acts herein alleged, were acting under color of state

21

law.

22

94. Defendants were acting in accordance with a custom, policy and/or practice of the

23

SFO, the SFPD, and CCSF in violating plaintiffs constitutional rights as set forth above.

24

95. As a direct and proximate result of defendants' wrongful acts alleged herein,

25

plaintiff suffered severe damages, including humiliation and damage to her reputation, physical

26

pain, emotional distress, and deprivation of her constitutional rights, according to proof at the

27

time of trial.

28

Second Amended Complaint

17 Case No. C06-0545 WHA

Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page18 of 26

1

96. Defendants committed the actions alleged herein maliciously, fraudulently,

2 oppressively and with the wrongful intention of injuring plaintiff. Defendants acted with an

3 improper motive amounting to malice and with conscious disregard of plaintiffs rights. As

4 such, plaintiff is entitled to recover punitive damages from defendants in an amount according to

5 proof at the time of trial.

6

EIGHTH CAUSE OF ACTION

7 (Bivens - First Amendment Freedom of Association - Against Defendant BONDANELLA)

8

97. Plaintiff re-alleges paragraphs 1 through 96 above and incorporates them herein

9 by reference.

10

98. In doing the acts complained of herein, BONDANELLA deprived plaintiff of her

11 freedom of association under the United States Constitution as set forth under the First

12 Amendment to the United States Constitution;

13

99. BONDANELLA violated plaintiffs freedom of association in that, on

14 information and belief, he directed defendants to arrest plaintiff based on her association with the

15 Muslim community or the Islamic religion, and based on her national origin.

16

100. In committing the acts herein alleged, BONDANELLA was acting under color of

17 federal law.

18

101. As a direct and proximate result ofBONDANELLA's wrongful acts alleged

19 herein, plaintiff suffered severe damages, including humiliation and damage to her reputation,

20 physical pain, emotional distress, and deprivation of her constitutional rights, according to proof

21 at the time of trial.

22

102. BONDANELLA committed the actions alleged herein maliciously, fraudulently,

23 oppressively and with the wrongful intention of injuring plaintiff. BONDANELLA acted with

24 an improper motive amounting to malice and with conscious disregard of plaintiffs rights. As

25 such, plaintiff is entitled to recover punitive damages from BONDANELLA in an amount

26 according to proof at the time of trial.

27

28

Second Amended Complaint

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Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page19 of 26

1

NINTH CAUSE OF ACTION

2

(Interference With Exercise Of Civil Rights - California Civil Code Section 52.1 -

Against Defendants CCSF, SFPD, PATE, CUNNINGHAM, MARON,

3

BONDANELLA, and USIS)

4

103. Plaintiff re-alleges paragraphs 1 through 102 above and incorporates them herein

5 by reference.

6

104. Defendants' conduct alleged herein interfered with, or constituted an attempt to

7 interfere with, plaintiffs' constitutional rights by threatening or committing violent acts, in that

8 defendants caused plaintiffs anest without a warrant or other legal process, without probable

9 cause,and without any reasonable belief that plaintiff had committed a crime. Plaintiff is

10 informed and believes, and thereon alleges, that defendants caused her to be anested despite

11 these obvious deficiencies because they perceived she was Muslim or affiliated with the Muslim

12 community, and because of her national origin.

13

105. The aiTest interfered with plaintiffs constitutional rights granted to her under the

14 First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution, and article I,

15 sections 3, 4, 7, 13 and 15 of the California Constitution, through violence or the threat of

16 violence.

17

106. As a proximate result of the acts of defendants herein alleged, plaintiff incmTed

18 both economic and noneconomic dainages.

19

107. Plaintiff is informed and believes, and thereon alleges, that defendants committed

20 the actions alleged herein maliciously, fraudulently, oppressively and with the wrongful intention

21 of injuring plaintiff. Defendants acted with an improper, evil motive amounting to malice and

22 with conscious disregard of plaintiffs rights. As such, plaintiff is entitled to recover punitive

23 damages from defendants in an amount according to proof at the time of trial.

24

TENTH CAUSE OF ACTION

25

(False Imprisonment-Against Defendants CCSF, SFPD, PATE, CUNNINGHAM,

MARON, BONDANELLA, and USIS) 26

108. Plaintiff re-alleges paragraphs 1through107 above and incorporates them herein

27

by reference.

28

Second Amended Complaint

19 Case No. C06-0545 WHA

Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page20 of 26

I

I 09. On January 2, 2005, at SFO, defendants caused plaintiffs arrest, without a

2 warrant, or other legal process, without probable cause and without any reasonable belief that

3 plaintiff had committed a crime.

4

110. Plaintiff was imprisoned at the SFO police station for hours.

5

111. As a proximate result of the acts of defendants herein alleged, plaintiff incurred

6 both economic and noneconomic damages.

7

112. Defendants committed the actions alleged herein maliciously, fraudulently,

8 oppressively and with the wrongful intention of injuring plaintiff. Defendants acted with an

9 improper, evil motive amounting to malice and with conscious disregard of plaintiffs rights. As

10 such, plaintiff is entitled to recover punitive damages from defendants in an amount according to

11 proof at the time of trial.

12

ELEVENTH CAUSE OF ACTION

13

(Intentional Infliction of Emotional Distress - Against Defendants CCSF, SFPD, PATE,

CUNNINGHAM, MARON, BONDANELLA, and USIS) 14

113. Plaintiff re-alleges paragraphs I through 112 above and incorporates them herein

15

by reference.

16

114. On January 2, 2005, defendants caused plaintiffs arrest, knowing that they lacked

17

a warrant or other legal process. Defendants caused the arrest, knowing that they lacked

18

probable cause or any reasonable belief that plaintiff had committed a crime. Therefore,

19

defendants caused the arrest with the intention of causing, or reckless disregard of the probability

20

of causing, emotional distress for plaintiff.

21

115. On information and belief, the acts of the defendants herein alleged were willful,

22

despicable, malicious, and oppressive.

23

116. As a proximate result of the acts of defendants herein alleged, plaintiff incurred

24

severe emotional distress and mental suffering. Plaintiff experienced extreme humiliation,

25

shame, and anger when:

26

a) Defendants, police officers, handcuffed plaintiff in front of her fourteen

27

year old daughter at the San Francisco Airport, on the morning of January 2, 2005;

28

Second Amended Complaint

20 Case No. C06-0545 WHA

Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page21 of 26

I

b) A crowd of passengers gathered to watch defendants, police officers,

2 detain and arrest plaintiff, without a warrant or probable cause, at the San Francisco Airport on

3 the morning of January 2, 2005;

4

c) Defendants, police officers, forced plaintiff to miss her flight by detaining

5 and arresting her without a warrant or probable cause;

6

d) Defendant, MARON, removed part of plaintiffs hijab and loosened

7 plaintiffs hair;

8

e) Defendants, police officers, caused plaintiff to experience abdominal pain

9 and high blood pressure by incarcerating plaintiff in a detention area without access to her

I 0 medications;

11

f)

Defendants, police officers, forced plaintiff to urinate in a public area

12 while in the holding cell.

13

g) Defendants represented to plaintiff that her name had been removed from

14 the No-Fly List, but plaintiff later discovered that defendants had in fact made no effort to

15 remove plaintiff from the No-Fly List.

16

TWELFTH CAUSE OF ACTION

17

(Negligent Infliction of Emotional Distress - Against Defendants CCSF, SFPD, PATE,

CUNNINGHAM, MARON, BONDANELLA, and USIS) 18

117. Plaintiff re-alleges paragraphs I through 116 above and incorporates them herein

19

by reference.

20

118. On January 2, 2005, defendants knew or should have known that arresting and

21

imprisoning plaintiff without a warrant or probable cause would cause plaintiff severe emotional

22

distress.

23

119. On January 2, 2005, defendants caused plaintiffs arrest, knowing that they lacked

24

a warrant or other legal process. Defendants caused the arrest, knowing that they lacked

25

probable cause or any reasonable belief that plaintiff had committed a crime.

26

120. On information and belief, the acts of the defendants herein alleged were willful,

27

despicable, malicious, and oppressive.

28

Second Amended Complaint

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1

121. As a proximate result of the acts of defendants herein alleged, plaintiff incurred

2 severe emotional distress and mental suffering. Plaintiff experienced extreme humiliation,

3 shame, and anger when:

4

a) Defendants, police officers, handcuffed plaintiff in front of her fomieen

5 year old daughter at the San Francisco Airport, on the morning of January 2, 2005;

6

b) A crowd of passengers gathered to watch defendants, police officers,

7 detain and arrest plaintiff, without a warrant or probable cause, at the San Francisco Airport on

8 the morning of January 2, 2005;

9

c) Defendants, police officers, forced plaintiff to miss her flight by detaining

10 and arresting her without a warrant or probable cause;

11

d) Defendant, MARON, removed part of plaintiffs hijab and loosened

12 plaintiffs hair;

13

e) Defendants, police officers, caused plaintiff to experience abdominal pain

14 and high blood pressure by incarcerating plaintiff in a detention area without access to her

15 medications;

16

t)

Defendants, police officers, forced plaintiff to urinate in a public area;

17

g) Defendants represented to plaintiff that her name had been removed from

18 the No-Fly List, but plaintiff later discovered that defendants had in fact made no effort to

19 remove plaintiff from the No-Fly List.

20

THIRTEENTH CAUSE OF ACTION

21 (Violation Of The United States Constitution and the APA, Under The APA And The First, Fourth, Fifth And Fourteenth Amendments To The United States Constitution - Against
22 Defendants DHS, HOLDER, FBI, MUELLER, TSC, CUMMINGS, BOYLE, BUCELLA, NAPOLITANO, CHERTOFF, RIDGE, NCTC, LEITER, DOS, and CLINTON)
23 122. Plaintiff re-alleges paragraphs 1 through 121 above and incorporates them herein
24 by reference.
25
123. Defendants are responsible for implementing HPSD-6, coordinating the
26
operations of the TSC, and/or maintaining, administering, compiling, and correcting the TSC's
27 TSDB, including the No-Fly List. Defendants erroneously placed IBRAHIM's name on a
28

Second Amended Complaint

22 Case No. C06-0545 WHA

Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page23 of 26

I government watch list on an improper and unconstitutional basis, disseminated this fact to

2 various government agencies, state actors, and private individuals in error, and subsequently

3 failed to remove her name from the list despite her request for redress, which resulted in her

4 unlawful arrest and, IBRAHIM is informed and believes, the unfounded revocation of her visa.

5 In doing the acts complained of herein, defendants were acting within their respective official

6 capacities and under color of authority. In doing the acts complained of herein, defendants

7 deprived plaintiff of her right to procedural and substantive due process, equal protection,

8 freedom of religion, and freedom of association under the United States Constitution as set forth

9 under the First, Fifth and Fourteenth Amendments to the United States Constitution.

10

124. The No-Fly List or any government screening list, and the placement of

11 IBRAHIM on such lists is unconstitutional in that it violates the due process protections

12 guaranteed under the Fifth and Fourteenth Amendments of the United States Constitution. On

13 information and belief, the placement of names on the No-Fly List is done in an arbitrary and

14 capricious manner and without any factual findings or rational basis.

15

125. Defendants' actions in administering and maintaining the No-Fly List deprived

16 plaintiff of liberty and property interests protected by the Fifth Amendment. Plaintiff has a right

17 to be free from being falsely stigmatized as an individual associated with terrorist activity,

18 where, as here, the stigma causes a change in legal status that affects her ability to travel and

19 work in academia, her chosen profession. Defendants' actions alleged herein publicly made

20 clear that the United States government considered IBRAHIM a security risk, a charge which

21 IBRAHIM denies. Defendants are grossly negligent, reckless, and/or deliberately indifferent to

22 the risk that the deprivations these actions cause. The deprivations are without due process of

23 law because plaintiff was not informed of her placement on the No-Fly List or given any

24 opportunity to contest such placement. Also, defendants have failed to provide constitutionally

25 adequate mechanisms for plaintiff to avoid being subjected to the stigma, interrogations, delays,

26 enhanced searches, detentions, and/or other travel impediments associated with having a name

27 identical or similar to a name on the No-Fly List.

28

126. Plaintiff is an identifiable Muslim woman who wears the hijab. On information

Second Amended Complaint

23 Case No. C06-0545 WHA

Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page24 of 26

I and belief, defendants acted in a discriminatory manner, with the intent to discriminate, in that

2 IBRAHIM was placed on the No-Fly List based on her religious beliefs and her national origin

3 as a citizen of Malaysia. Plaintiff is informed and believes, and thereon alleges, that defendants

4 would not have engaged in the conduct alleged herein but for her religious affiliation and

5 national origin. Plaintiff is informed and believes, and thereon alleges, that defendants habitually

6 place Muslims and Malaysian nationals on government watchlists, or fail to remove them from

7 such watchlists, on the basis ofreligion and national origin, without conducting an individualized

8 investigation, and regardless of whether defendants can articulate any facts in support of such

9 placement or non-removal. Defendants' placement ofIBRAHIM's name on the No-Fly list on

I 0 these impermissible bases, and subsequent failure to remove it, violated her First Amendment

11 rights of freedom ofreligion and freedom of association, and her Fifth and Fourteenth

12 Amendment right to equal protection.

13

127. Defendants' actions alleged herein were arbitrary, capricious, an abuse of

14 discretion, and not in accordance with the law, in violation of the APA. Defendants have failed

15 to adopt adequate procedures to prevent misidentification or to ensure that incorrect information

16 is modified or removed from the TSC's TSDB, as required by the 2003 MOU implementing

17 HPSD-6.

18

128. An actual and immediate controversy has arisen and now exists between plaintiff

19 and defendants related to their respective rights and duties. Defendants have acted arbitrarily

20 and capriciously, abused their discretion, and unlawfully failed to comply with constitutional

21 requirements by engaging in the acts and omissions described in this Complaint. Plaintiff is,

22 therefore, entitled to a declaration of rights over this controversy.

23

129. Plaintiff has no adequate remedy at law. Defendants have acted, and continue to

24 act, to deprive plaintiff of her constitutional rights. Plaintiff is suffering and will continue to

25 suffer irreparable injury as a result of the policies and practices described in this Complaint

26 unless those policies and practices are enjoined by this Court. Plaintiff has no plain, adequate, or

27 speedy remedy at law and is entitled to injunctive relief against defendants. Plaintiff has no

28 administrative remedy because defendants' policies and practices preclude any administrative

Second Amended Complaint

24 Case No. C06-0545 WHA

Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page25 of 26

1 determinations from affording actual relief.

2

PRAYER

3

WHEREFORE, plaintiffs pray for the following relief:

4

a.

For compensatory damages according to proof;

5

b. For civil penalties, to the extent provided by law;

6

c. For exemplary and punitive damages according to proof;

7

d. For costs of suit, including attorneys' fees;

8

e. For a declaration, order, and judgment that defendants' placement ofIBRAHIM'S

9

name on the No-Fly List and their subsequent failure to remove her name from

10

the No-Fly List were arbitrary and capricious, an abuse of discretion,

11

unauthorized by law, and contrary to IBRAHIM'S rights under the First, Fifth,

12

and Fourteenth Amendments to the United States Constitution.

13

f.

For an injunction requiring defendants to remove IBRAHIM's name from the No-

14

Fly List database maintained by the TSC, and from any other related database

15

maintained or accessed by other federal agencies, including but not limited to,

16

databases maintained or accessed by the NCTC, the FBI, the DOS, the DHS, the

17

TSA, the TSOC, USIS, or any other agency that maintains information regarding

18

individuals whose names have been placed on the No-Fly List or other watch list

19

due to alleged terrorist-related activities; and

20

g. For an injunction requiring defendants to communicate the removal of

21

IBRAHIM'S name from the No-Fly List to the United States Visa Office, the

22

United States Embassy in Kuala Lumpur, Malaysia, and any other government

23

agency, foreign or domestic, that relies on information from the NCTC, the TSC,

24

the FBI, the DOS, the DHS, or the TSA, to identify visa applicants who may be

25

inadmissible pursuant to Section 212(a)(3)(B) of the Immigration and Nationality

26

Act; or

27

h. Alternatively, for a declaration, order, and judgment that IBRAHIM is entitled to

28

a name-clearing hearing regarding the placement of her name on the TSC's

Second Amended Complaint

25 Case No. C06-0545 WHA

Case3:06-cv-00545-WHA Document161 Filed04/02/09 Page26 of 26

I

TSDB; and

2

I.

For an injunction requiring defendants to provide IBRAHIM with a name clearing

3

hearing regarding the placement of her name on the TSC's TSDB; and

4

J.

Such other and further relief as the Court may deem appropriate.

5 6 Dated: March 27, 2009

McMANIS FAULKNER

7

8

JAMES McMANIS

MARWA ELZANKALY

9

CHRISTINE PEEK

IO

Attorneys for Plaintiff,

RAHINAH IBRAHIM

11

DEMAND FOR JURY TRIAL 12

13

Plaintiff hereby demands a jury trial as provided by Rule 38(a) of the Federal Rules of

14 Civil Procedure.

15 Dated: March 27, 2009
16

McMANIS FAULKNER

17

JAMES McMANIS

18

MARWA ELZANKALY

CHRISTINE PEEK

19

Attorneys for Plaintiff,

20

RAHINAH IBRAHIM

21

22

23

24

25

26

27

28

Second Amended Complaint

26 Case No. C06-0545 WHA

 
 Case3:06-cv-00545-WHA Document197 Filed07/27/09 Page1 of 19

United States District Court For the Northern District of California

1

2

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

8 FOR THE NORTHERN DISTRICT OF CALIFORNIA
9

10

11 RAHINAH IBRAHIM,

12

Plaintiff,

No. C 06-00545 WHA

13

v.

14 DEPARTMENT OF HOMELAND 15 SECURITY, et al.,

ORDER ON MOTIONS TO DISMISS

16

Defendants. /

17

18

INTRODUCTION

19

This action challenges the placement of plaintiff’s name on the “no-fly list,” a list

20 maintained by the United States government and circulated to carriers serving the United States.

21 Defendants move to dismiss certain claims in plaintiff’s second amended complaint.

22

Contrary to the federal defendants, this order finds that plaintiff has standing.

23 Plaintiff’s claims seeking future relief as to the federal defendants may not go forward, however,

24 because, as a non-resident alien who voluntarily left the United States, the Constitution no longer

25 applies to her. As to her damage claims for past violations, a different problem arises, namely

26 the stricter pleading standard in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Her claims for equal

27 protection, freedom of religion, and freedom of association asserted against the San Francisco

28 defendants and defendant John Bondanella must be dismissed but without prejudice to seeking to

amend after discovery. While her claims of false imprisonment and interference with the exercise

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United States District Court For the Northern District of California

1 of civil rights are dismissed as to defendants Bondanella and USIS, those claims will go forward

2 against the San Francisco defendants. The San Francisco defendants and defendants Bondanella

3 and USIS did not challenge plaintiff’s Fourth Amendment claims and emotional distress claims

4 against them, so she may also proceed with those claims and may take discovery as to the entire

5 incident.

6

STATEMENT

7

Before the terrorist attacks of September 11, 2001, federal law maintained measures

8 to prevent violent or threatening conduct, including “the screening of all passengers and

9 property . . . that will be carried aboard a passenger aircraft.” 49 U.S.C. 44901. After the

10 September 11 attacks, Congress enacted the Aviation and Transportation Security Act, which

11 authorized additional prophylactic measures relating to aircraft security. The Act placed the

12 responsibility for airline security on the Under Secretary of Transportation for Security, who is

13 the head of the Transportation Security Administration. Pursuant to the Act, the TSA became

14 an agency within the Department of Transportation. 49 U.S.C. 114(a). In March 2003, after the

15 creation of the Department of Homeland Security and passage of the Homeland Security Act, the

16 TSA shifted and became an agency under the DHS. 6 U.S.C. 203(2).

17

According to the Act, “[t]he Under Secretary shall prescribe regulations to protect

18 passengers and property on an aircraft operating in air transportation or intrastate air

19 transportation against an act of criminal violence or aircraft piracy.” 49 U.S.C. 44903(b).

20 It further stated:

21

The Under Secretary shall prescribe regulations under

subsection (b) of this section that require each operator of an

22

airport regularly serving an air carrier holding a certificate issued

by the Secretary of Transportation to establish an air transportation

23

security program that provides a law enforcement presence and

capability at each of those airports that is adequate to ensure the

24

safety of passengers. The regulations shall authorize the operator

to use the services of qualified State, local, and private law

25

enforcement personnel.

26 49 U.S.C. 44903(c)(1).

27

The Act also required the TSA’s Under Secretary to implement certain data-sharing

28 programs between law-enforcement agencies. The Under Secretary was to “enter into

2

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1 memoranda of understanding with Federal agencies or other entities to share or otherwise

2 cross-check as necessary data on individuals identified on Federal agency databases who may

3 pose a risk to transportation or national security.” 49 U.S.C. 114(h)(1). Similarly, the Under

4 Secretary was required to:

5

[E]stablish procedures for notifying the Administrator of the

Federal Aviation Administration, appropriate State and local law

6

enforcement officials, and airport or airline security officers of the

identity of individuals known to pose, or suspected of posing, a

7

risk of air piracy or terrorism or a threat to airline or passenger

safety.

8

49 U.S.C. 114(h)(2). “[I]f such an individual is identified, notify appropriate law enforcement

9

agencies, prevent the individual from boarding an aircraft, or take other appropriate action with

10

respect to that individual.” 49 U.S.C. 114(h)(3)(B).

11

TSA has implemented the provisions of the Act through a series of security directives.

12

One such directive is the “no-fly list,” which is the subject of this action. The Terrorist Screening

13

Center compiles the list of names ultimately placed on the no-fly list. The Act also provided for

14

secrecy of the security directives: “the Under Secretary shall prescribe regulations prohibiting the

15

disclosure of information obtained or developed in carrying out security under authority of the

16

Aviation and Transportation Security Act.” 49 U.S.C. 114(s)(1).

17

*

*

*

18

Plaintiff Rahinah Ibrahim alleges that the “no-fly list” consists of two watch lists that

19

names individuals perceived to be threats to aviation security: (1) the “no-fly” list contains names

20

of people that airlines are prohibited from transporting; (2) the “selectee” list contains names of

21

people who are subject to additional screening prior to boarding a plane (Second Amd. Compl.

22

¶ 30). Both the “no-fly” list and “selectee” list are collectively referred to as the “no-fly list”

23

herein.

24

Ibrahim is a Muslim woman. She is a citizen of Malaysia, not the United States. In 2005,

25

she was a doctoral student at Stanford University preparing a thesis on affordable housing.

26

She was scheduled to complete her doctoral degree in March 2005. According to the pleading,

27

she has no criminal record or links to terrorist activity.

28

3

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1

On January 2, 2005, Ibrahim had a flight scheduled to Kuala Lumpur, with a stopover

2 in Hawaii, to present her research at a conference sponsored by Stanford. At approximately

3 7:00 a.m. on January 2, Ibrahim and her fourteen-year-old daughter arrived at San Francisco

4 International Airport for their 9:00 a.m. flight. They proceeded to the United Airlines ticket

5 counter to get their boarding passes and check their bags. Ibrahim requested wheelchair

6 transportation to the gate because she suffered from back and abdominal pain as a result of a

7 recent hysterectomy and subsequent complications (id. at ¶ 38).

8

David Nevins, a United Airlines employee, asked to see Ibrahim’s ticket. According to

9 Ibrahim, Nevins called the San Francisco Police Department and told them that Ibrahim’s name

10 was on the no-fly list. Defendant Officers Richard Pate and J. Cunningham, who work for SFPD,

11 arrived at the airport. Officer Pate then called defendant John Bondanella in the District of

12 Columbia. At that time, Bondanella was employed as a watch officer for the Transportation

13 Security Operations Center by defendant United States Investigations Services, Inc., a private

14 corporation that provided contract services to the TSOC. During the telephone conversation,

15 Bondanella allegedly “told defendant, Pate, to not allow Ibrahim on the flight, to contact the FBI,

16 and to detain Ibrahim for questioning” (id. at ¶ 39).

17

At 8:45 a.m., Officer Cunningham allegedly told Ibrahim she was being detained.

18 Ibrahim was handcuffed with her hands behind her back and taken to the SFPD police station.

19 No one told her why she was being detained. At the police station, she was searched by

20 defendant Officer Elizabeth Maron, who allegedly tried to remove Ibrahim’s hijab, searched

21 under her hijab, and did so in view of other male officers. She was placed in a holding cell for

22 approximately two hours. At 11:15 a.m., the FBI requested that she be released.

23

Defendants allegedly told Ibrahim that her name had been removed from the no-fly list

24 (id. at ¶ 45). The next day, however, she “discovered that she was still on the no-fly list when she

25 attempted to fly again” (ibid.). Exactly what occurred is not revealed by the pleading. She was

26 eventually allowed to fly to Kuala Lumpur from San Francisco, but at the San Francisco airport

27 and every stopover, she was publicly subjected to enhanced searches before boarding any flights.

28

4

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1

Ibrahim was scheduled to return to Stanford in March 2005 to complete her degree.

2 Ibrahim went to the Kuala Lumpur International Airport on March 10, 2005, to try to fly back

3 to the United States (Ibrahim Decl. ¶ 14). At the time, she believed she had a valid student visa.

4 The ticketing agent, however, would not allow her to fly. The ticketing agent told her she had to

5 wait until he received clearance from the United States embassy. Another ticketing agent later

6 informed her there was a note by her name instructing airport personnel to call the police and

7 have her detained (ibid.).

8

To try to clear her name, Ibrahim submitted a request for passenger identity verification

9 to the Transportation Security Administration on March 24, 2005. In March 2006, a letter from

10 TSA ambiguously responded that where “it has been determined that a correction to records is

11 warranted, these records have been modified” (Second Amd. Compl. ¶ 46). Also in 2005, a letter

12 from the United States embassy in Malaysia informed Ibrahim that her student visa had been

13 revoked. She has not re-applied for a visa. And in 2005, she filed a claim with the City and

14 County of San Francisco regarding damages she allegedly suffered, but the claim was rejected.

15

Ibrahim commenced this action in 2006. Defendant Bondanella, the United Airlines

16 defendants, and the federal defendants moved to dismiss the complaint. The San Francisco

17 defendants did not join the motions. An order held subject-matter jurisdiction was lacking,

18 because the no-fly list was an order of the TSA under the ambit of 49 U.S.C. 46110(a), which

19 granted exclusive jurisdiction to the federal courts of appeals to review orders of the TSA.

20 The order also dismissed plaintiff’s claims against defendant Bondanella, the United Airlines

21 defendants, and the federal defendants. The Ninth Circuit affirmed in part, reversed in part,

22 and remanded. The Ninth Circuit concluded that the district court has original jurisdiction

23 over Ibrahim’s claim for injunctive relief regarding placement of her name on the no-fly list.

24 The Ninth Circuit affirmed the determination that the district court, however, did not have

25 jurisdiction over Ibrahim’s claim for injunctive relief regarding the government’s policies and

26 procedures implementing the no-fly list. The Ninth Circuit also held that: the federal defendants’

27 actions were not state actions under 42 U.S.C. 1983; the airline defendants were not state actors

28 under Section 1983; the tort claims against the airline defendants were precluded; the tort claims

5

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1 against the federal officials in their official capacities were precluded; and that specific

2 jurisdiction was available for the claims against Bondanella, who was sued in his individual

3 capacity.

4

On the issue of standing, the Ninth Circuit stated:

5

The government argued below, as it does here, that the No-Fly List

causes Ibrahim no concrete injury because she now lives in

6

Malaysia and doesn’t have a U.S. visa. But Ibrahim points out that

she may apply for a visa in the future and that, even if she does not,

7

the fact that her name is on the list still prevents her from

“board[ing] a United States airline” anywhere in the world.

8

Whether Ibrahim has standing to bring a claim for removal of her

name from the No-Fly List is highly fact-dependent, so the district

9

court is in the best position to resolve it in the first instance. On

remand, therefore, Ibrahim must show that she “is realistically

10

threatened” with concrete injury in the future. Armstrong v. Davis,

275 F.3d 849, 861 (9th Cir. 2001) (quoting City of Los Angeles v.

11

Lyons, 461 U.S. 95, 109, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983)).

The district court should resolve this question before addressing the

12

merits of Ibrahim’s APA claim regarding placement of her name on

the No-Fly List.

13

Ibrahim v. Dep’t of Homeland Sec., 538 F.3d 1250, 1256 n.9 (9th Cir. 2008).

14

On remand, Ibrahim filed a second amended complaint, which included thirteen claims.

15

The current defendants fall into three categories: (1) the federal defendants, (2) the San Francisco

16

defendants, and (3) defendants John Bondanella (who worked for private firm USIS under

17

contract to the United States) and USIS. Plaintiff seeks declaratory and injunctive relief against

18

the federal defendants. She also seeks compensatory, exemplary and punitive damages from the

19

San Francisco defendants and defendants Bondanella and USIS. The new federal administration

20

now defends the case as vigorously as the old one. The federal defendants, the San Francisco

21

defendants, and defendants Bondanella and USIS now move to dismiss certain claims in

22

plaintiff’s second amended complaint.1

23

24
1 The “federal defendants” include: Department of Homeland Security; Janet Napolitano, in her
25 official capacity as Secretary of DHS; Michael Chertoff in his official capacity as former Secretary of DHS;
Tom Ridge in his official capacity as the former Secretary of DHS; Eric H. Holder, Jr., in his official capacity as
26 Attorney General; Terrorist Screening Center; Leonard C. Boyle in his official capacity as Director of TSC;
Donna A. Bucella in her official capacity as former Director of TSC; Federal Bureau of Investigation; Robert
27 Mueller in his official capacity as Director of FBI; Arthur M. Cummings in his official capacity as Executive
Assistant Director of FBI’s National Security Branch; National Counterterrorism Center; Michael E. Leier, in
28 his official capacity as Director of NCC; Department of State; and Hilary Clinton in her official capacity as
Secretary of State.

6

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1

ANALYSIS

2

1.

STANDING.

3

As against all federal defendants, the complaint seeks only prospective relief, a critical

4 circumstance. All federal defendants move to dismiss Ibrahim’s thirteenth claim on the ground

5 that she lacks standing to seek injunctive or declaratory relief as to the future.

6

To evaluate standing, a court must ask whether a plaintiff has suffered injury to satisfy

7 the “case or controversy” requirement of Article III. To satisfy the case and controversy

8 requirement, a plaintiff “must show that: (1) it has suffered an ‘injury in fact’ that is (a) concrete

9 and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is

10 fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely

11 speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc.

12 v. Laidlaw Envt. Sys., Inc., 528 U.S. 167, 180–81 (2000).2

13

A. Injury in Fact.

14

Without question, Ibrahim would have standing to seek damages for her detention in the

15 past. The real issue is whether she has standing to seek declaratory relief or an injunction as to

16 the future application of the no-fly list. Again, Ibrahim seeks damages only from the San

17 Francisco defendants, defendants Bondanella and USIS. She requests only declaratory and

18 injunctive relief as to the federal defendants.

19

Where “a plaintiff seeks prospective injunctive relief, he must demonstrate that he is

20 realistically threatened by a repetition of the violation.” Armstrong v. Davis, 275 F.3d 849,

21 860–861 (9th Cir. 2001). An allegation of past harm in and of itself is not enough to confer

22 standing upon a plaintiff to seek prospective relief. Future or imminent harm, however, is enough

23 to establish standing if such harm is concrete and cognizable.

24

25
The “San Francisco defendants” include: San Francisco Airport; City and County of San Francisco;
26 San Francisco Police Department; and SFPD Officers Pate, Cunningham and Maron.

27

The other defendant is the United States Investigations Services, Inc. USIS employed John

Bondanella.
28

2 Unless otherwise noted, internal citations and quotations have been omitted.

7

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1

Ibrahim asserts that her future injury stems from placement of her name on the no-fly list,

2 which further led to (1) her being stopped, detained, and prevented from flying on January 2,

3 2005; (2) her continued inability to enter the United States; and (3) revocation of her visa.

4

A main question is whether such a stop is likely to happen again. This order finds that

5 plaintiff has a reasonable apprehension that she will be burdened again by being on the no-fly list.

6 First, Ibrahim plans to visit the United States again. In response to the Court’s recent request for

7 updated information regarding Ibrahim’s claim of standing, Ibrahim submitted a declaration that

8 provided a description of her concrete plan for a future trip to the United States. For instance,

9 in her new declaration, she stated: “I am planning a trip in October, 2009, to the 2009 Annual

10 Non-profit Housing Fall Conference in San Francisco with a team from the Selangor government”

11 (Ibrahim Decl. ¶ 12). This statement evidences more than a generalized future plan and instead

12 points to a specific event in the United States she plans to attend.

13

Second, Ibrahim’s name is allegedly still on the no-fly list. The list includes the names of

14 individuals who are prohibited from boarding an airplane or are subject to additional screening.

15 Ibrahim’s claimed harm stems from the placement of her name on that list and the failure of

16 defendants to take her name off the list despite her request for them to do so. According to the

17 pleading, “defendants do not remove individuals from the no-fly list and other related watch lists,

18 even when it would be appropriate to do so because, among other reasons, the individual has been

19 misidentified or incorrectly placed on the list” or the individual has been determined to not be a

20 security threat (Second Amd. Compl. ¶¶ 29, 48). Plaintiff has a reasonable basis to believe that

21 when she tries to board a United States carrier she will again be refused or subjected to selective

22 screening.

23

The federal defendants respond that one stop, four years ago, is insufficient to show a

24 real and immediate threat of future harm. For this proposition, they primarily rely on City of

25 Los Angeles v. Lyons, 461 U.S. 95 (1983), and Hodgers-Durgin v. De La Vina, 199 F.3d 1037

26 (9th Cir. 1999). Those decisions are inapposite. In Lyons, the plaintiff sought an injunction

27 against the City of Los Angeles barring the use of “chokeholds.” 461 U.S. at 97–98. The

28 plaintiff alleged that the police officers stopped him for a traffic or vehicle code violation and the

8

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1 officers, without provocation, seized him and applied a chokehold. The plaintiff further alleged

2 that the city’s officers regularly and routinely applied chokeholds in situations when they were

3 not threatened with deadly force, that numerous persons had been injured as a result, and that the

4 plaintiff and others were threatened with irreparable bodily injury. The Supreme Court held that

5 the plaintiff did not have standing to seek an injunction because the complaint did not establish

6 that there was a real and immediate threat that the plaintiff would again be stopped and again

7 without provocation be subject to a chokehold. In contrast to the plaintiff in Lyons, Ibrahim was

8 allegedly stopped because her name was and remains on an ongoing government watch list rather

9 than because of just one isolated incident.

10

In Hodgers-Durgin, the plaintiff sought injunctive relief prohibiting the Border Patrol’s

11 alleged practice of routinely stopping motorists without reasonable suspicion. 199 F.3d at 1037.

12 Although the two plaintiffs regularly drove back-and-forth across the border, each was stopped

13 only once by Border Patrol agents in ten years. The Ninth Circuit held that plaintiffs lacked

14 standing to pursue injunctive relief because it was not sufficiently likely that the plaintiffs would

15 be stopped again by the Border Patrol. The Ninth Circuit further stated that in the absence of a

16 likelihood of injury there was no basis for granting injunctive relief that would restructure the

17 operations of the Border Patrol and that would require ongoing judicial supervision of an agency

18 normally overseen by the executive branch. Again, our case is different. Our plaintiff plainly

19 wants to return to the United States and the no-fly list stands as an obstacle.

20

B. Causation and Redressability.

21

Both the causation and redressability requirements are satisfied here. According to the

22 federal defendants, Ibrahim’s harm is not likely to be redressed by a favorable decision because

23 even with the removal of her name from the no-fly list, she would not be permitted to travel to the

24 United States without a visa. Ibrahim’s visa was revoked in April 2005. Apparently, she has not

25 applied for a new visa. While Ibrahim argues that having her name on the no-fly list led to the

26 revocation of her visa, defendants argue that the decision to revoke her visa was made

27 independent from any reference to the no-fly list. The basis for the visa revocation need not be

28 resolved at this time. While obtaining a visa may stand as a potential obstacle to her entry into

9

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1 the United States, it does not completely foreclose redressability. Ibrahim is not required to solve

2 all roadblocks simultaneously and is entitled to tackle one roadblock at a time.

3

2.

CONSTITUTIONAL CLAIMS AGAINST THE FEDERAL DEFENDANTS.

4

Although plaintiff has standing to reach the merits, her argument on the merits is

5 compromised by the fact that she is an alien who voluntarily left the United States and thus

6 voluntarily left her constitutional rights at the water’s edge. She asserts that placing her name

7 on the no-fly list violates her right to freely exercise her religion, her right to freely associate with

8 other Muslims and Malaysians, her right to be free from unreasonable searches and seizures, her

9 right to equal protection, and her right to procedural due process. The Constitution, however,

10 does not apply extraterritorially to protect non-resident aliens outside our country.

11

Aliens within the United States are entitled to the protection of certain constitutional

12 rights. “[I]n extending constitutional protections beyond the citizenry, the [Supreme] Court has

13 been at pains to point out that it was the alien’s presence within its territorial jurisdiction that

14 gave the judiciary power to act.” Johnson v. Eisentrager, 339 U.S. 763, 771 (1950) (holding that

15 the right to a writ of habeas corpus did not extend to enemy aliens captured and imprisoned

16 abroad). Aliens, like Ibrahim, who are not within the territorial jurisdiction of the United States

17 are not entitled to such protection. See United States v. Verdugo-Urquidez, 494 U.S. 259, 269

18 (1990) (holding that the Fourth Amendment did not apply to the search and seizure by United

19 States agents of property owned by a Mexican citizen and located in his Mexican residence).

20

The basis for Ibrahim’s claim is the placement of her name on the no-fly list, which led

21 to the stop, search, detention, and exclusion from her flight on January 2, 2005. The next day,

22 Ibrahim voluntarily left the United States. After leaving this country, she filed a complaint

23 seeking future relief from the federal defendants. According to Ibrahim, she does not have to be

24 in the United States at the time she filed her complaint to obtain declaratory and injunctive relief

25 as to future flights. Ibrahim contends that is she entitled to adjudicate future relief because she

26 was lawfully present in the United States at the time of the past injuries alleged in her complaint.

27 Her presence in the United States at the time of the alleged injuries on January 2, 2005, is not

28 sufficient, because she does not seek damages against the federal defendants for those past

10

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1 injuries. Instead, she seeks only prospective relief (removal of her name from the list) based on

2 future harm as against the federal defendants. When she voluntarily left the United States, she

3 regained her status as an alien outside the country. As to any future injuries, she has no

4 constitutional right to assert.

5

Ibrahim cites Wang v. Reno, 81 F.3d 808 (9th Cir. 1996), and Mathews v. Diaz, 426 U.S.

6 67 (1976). The facts in those decisions, however, differed from those presented here. In Wang,

7 the plaintiff, an alien who was paroled into the United States to testify in an international drug

8 conspiracy trial, brought an action against the federal government seeking an injunction to

9 prohibit his removal from the United States. 81 F.3d at 812. While here, Ibrahim is essentially

10 seeking relief to enable her to come to the United States. The Ninth Circuit concluded Wang

11 could invoke the right to due process guaranteed by the Fifth Amendment. Id. at 818.

12 The rationale was that Wang became an alien in this country through the government’s

13 purposeful action when the government brought Wang to the United States and forced him

14 to testify in an American courtroom. The American prosecutorial effort violated Wang’s due

15 process rights on American soil. Id. at 817. An important distinction is that the plaintiff in

16 Wang was in the United States at the time he sought injunctive relief. Here, plaintiff is

17 voluntarily in Malaysia rather than the United States. Thus, she is not entitled to the same

18 protections.

19

In Matthews, the plaintiffs were resident aliens challenging the constitutionality of a

20 provision in the Social Security Act that denied eligibility for enrollment in the Medicare part B

21 supplemental medical insurance program unless they had been admitted for permanent residence

22 and had lived in the United States for at least five years. The plaintiffs sought declaratory and

23 injunctive relief. 426 U.S. at 71. While ultimately finding no due process violation, the

24 Supreme Court stated “[t]here are literally millions of aliens within the jurisdiction of the

25 United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one

26 of these persons from deprivation of life, liberty, or property without due process of law.” Id. at

27 77. This statement is not applicable to Ibrahim. Unlike the “millions of aliens” within the

28

11

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1 United States that are entitled to due process, Ibrahim is not within the United States and has

2 not been here for four years.

3

In the instant case, there is no physical presence. Physical presence in this country, not

4 only before the actions but also during the actions, entitled the plaintiffs in Wang and Matthews

5 to assert constitutional rights and request prospective relief. As Ibrahim seeks to be removed

6 from the list prospectively so that she may fly back into the United States in the future and does

7 not seek damages for past injury, the fact that she was in the United States when the earlier no-fly

8 incident occurred is unavailing. Accordingly, Ibrahim’s thirteenth claim asserting constitutional

9 rights and seeking prospective relief against the federal defendants is dismissed. This, however,

10 does not prevent Ibrahim from seeking damages for the alleged past harm from the San Francisco

11 defendants and defendant Bondanella.3

12

3.

DISCRIMINATION CLAIMS AGAINST THE SAN FRANCISCO

DEFENDANTS AND DEFENDANT BONDANELLA.

13

The San Francisco defendants move to dismiss plaintiff’s first, fifth, and seventh claims

14

for failure to state sufficient facts entitling her to relief. Similarly, defendant Bondanella moves

15

to dismiss plaintiff’s second, sixth, and eighth claims for failure to state sufficient facts. Rule 8(a)

16

requires that a pleading contain a short and plain statement of the claim showing that the pleader

17

is entitled to relief. Addressing the requirements of Rule 8, the Supreme Court stated:

18

[T]he pleading standard Rule 8 announces does not require detailed

19

factual allegations, but it demands more than an unadorned, the

defendant-unlawfully-harmed-me accusation. A pleading that

20

offers labels and conclusions or a formulaic recitation of the

elements of a cause of action will not do. Nor does a complaint

21

suffice if it tenders naked assertions devoid of further factual

enhancement.

22

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

23

The central theme of plaintiff’s complaint against the San Francisco defendants and

24

defendant Bondanella is the accusation that they discriminated against Ibrahim on the basis of

25

26
3 The foregoing is consistent with the recent decision of the Supreme Court holding that detainees at
27 Guantanomo Bay may assert constitutional rights. The Supreme Court has stated that the detainees at
Guantanomo Bay were “held in a territory that, while technically not part of the United States, is under the
28 complete and total control of our Government.” Boumediene v. Bush, 128 S. Ct. 2229, 2262 (2008). Malaysia,
however, is not a United States territory or within the control of our government.

12

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1 her national origin and religious beliefs by detaining her on January 2, 2005. The San Francisco

2 defendants and Bondanella invoke Iqbal, to argue that Ibrahim’s factual allegations are

3 insufficient to demonstrate a discriminatory purpose and to plead claims for violation of her

4 rights to freedom of religion, freedom of association, and equal protection. They argue that, like

5 in Iqbal, Ibrahim’s detention was non-discriminatory and the fact that she is an identifiable

6 Muslim is only incidental.4

7

Here, the complaint alleges that Ibrahim’s name was placed on the no-fly list (Second

8 Amd. Compl. ¶ 53). This allegation alone does not support a discrimination claim against the

9 San Francisco defendants or Bondanella. An airline employee or officer who does nothing more

10 than exclude someone from an airplane because their name is on the no-fly list cannot be guilty

11 of discrimination. The reason is they did not compile the list. Rather, as required by the Act, the

12 list was created and maintained by the federal government. We must expect that airlines and

13 officers who do nothing more than rely on the list are doing nothing more than trying to protect

14 the public.

15

To be sure, Ibrahim alleges that she was detained because she was a Muslim and a

16 Malaysian citizen. For example, as to the equal protection claim against Bondanella, plaintiff

17 pleads as follows (Second Amd. Compl. ¶ 60):

18

Bondanella directed the SFPD to arrest Ibrahim although he knew

they lacked a warrant, probable cause, or any reasonable belief that

19

she had committed a crime. Ibrahim is informed and believes, and

thereon alleges that Bondanella gave this direction despite these

20

obvious deficiencies, because he believed she was a Muslim and a

citizen of Malaysia. On information and belief, Bondanella acted in

21

a discriminatory manner, with the intent to discriminate on the basis

of Ibrahim’s religious beliefs and her national origin as a citizen of

22

Malaysia.

23 Likewise, the complaint alleges the following as to the San Francisco defendants (id. at ¶ 53):

24

25
4 Ibrahim asserts eight claims against the San Francisco defendants, including four constitutional
26 claims and four state law claims. The San Francisco defendants only move to dismiss three of the constitutional
claims. They do not challenge plaintiff’s Fourth Amendment claim or her four state law claims. Similarly, the
27 complaint also includes four constitutional claims and four state law claims against defendant Bondanella.
Bondanella moves to dismiss three of plaintiff’s claims asserting constitutional rights, but he does not challenge
28 her Fourth Amendment claim. Bondanella and USIS also seek to have two of plaintiff’s state law claims
dismissed.

13

Case3:06-cv-00545-WHA Document197 Filed07/27/09 Page14 of 19

United States District Court For the Northern District of California

1

[D]efendants arrested Ibrahim for several hours, although they

lacked a warrant, probable cause, or any reasonable belief that she

2

had committed a crime. Ibrahim is informed and believes, and

thereon alleges, that defendants made the arrest despite these

3

obvious deficiencies, because they perceived she was Muslim and a

citizen of Malaysia. On information and belief, San Francisco

4

defendants acted in a discriminatory manner, with the intent to

discriminate on the basis of Ibrahim’s religious beliefs and her

5

national origin as a citizen of Malaysia.

6 These allegations are conclusory and not enough to allow Ibrahim to proceed with her

7 discrimination claims against either the San Francisco defendants or Bondanella under Iqbal.

8 The reason is that “[t]hreadbare recitals of the elements of a cause of action, supported by mere

9 conclusory statements do not suffice.” 129 S. Ct. at 1949. Instead, a complaint must comply

10 with the following standard:

11

To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is

12

plausible on its face. A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the

13

reasonable inference that the defendant is liable for the misconduct

alleged. The plausibility standard is not akin to a probability

14

requirement, but it asks for more than a sheer possibility that a

defendant has acted unlawfully. Where a complaint pleads facts

15

that are merely consistent with a defendant’s liability, it stops short

of the line between possibility and plausibility of entitlement to

16

relief.

17 Ibid.5

18

Ibrahim has not nudged her claims of discrimination against the San Francisco defendants

19 or Bondanella based on the detention “across the line from conceivable to plausible.” Id. at 1951.

20 In Iqbal, the Supreme Court stated “[w]here the claim is invidious discrimination in contravention

21 of the First and Fifth Amendments, our decisions make clear that the plaintiff must plead and

22 prove that the defendant acted with discriminatory purpose.” Id. at 1948. Purposeful

23 discrimination requires a “decisionmaker’s undertaking a course of action ‘because of,’ not

24 merely ‘in spite of,’ the action’s adverse effects upon an identifiable group.” Ibid. To state a

25 claim, plaintiff must plead sufficient factual matter to show that defendants took actions “not for a

26
5 The remaining allegations of the equal protection claims are even more conclusory and are not
27 entitled to an assumption of truth. For instance, Ibrahim pleads that defendants “committed the actions alleged
herein maliciously, fraudulently, oppressively and with the wrongful intention of injuring plaintiff” (Second
28 Amd. Compl. ¶¶ 57, 63). The allegations for her equal protection, freedom of religion and association claims
are similar, so the same analysis applies.

14

Case3:06-cv-00545-WHA Document197 Filed07/27/09 Page15 of 19

United States District Court For the Northern District of California

1 neutral investigative reason but for the purpose of discriminating on account of race, religion, or

2 national origin.” Id. at 1948–49.

3

Ibrahim has not pleaded that defendants took action because of and not merely in spite

4 of her being Muslim and a Malaysian citizen. That plaintiff was Muslim and detained is not

5 enough to draw an inference of discrimination under the Iqbal standard. No additional facts,

6 such as derogatory statements, are alleged. Accordingly, as pled, the discrimination claims

7 against San Francisco officers or Bondanella are insufficient.

8

A good argument can be made that the Iqbal standard is too demanding. Victims of

9 discrimination and profiling will often not have specific facts to plead without the benefit of

10 discovery. District judges, however, must follow the law as laid down by the Supreme Court.

11 Yet, the harshness is mitigated here. Counsel for the San Francisco defendants and Bondanella

12 admit that plaintiff’s Fourth Amendment claim can go forward. This means that discovery will

13 go forward. During discovery, Ibrahim can inquire into facts that bear on the incident, including

14 why her name was on the list. If enough facts emerge, then she can move to amend and to

15 reassert her discrimination claims at that time.

16

*

*

*

17

The San Francisco defendants argue that plaintiff’s freedom of religion and association

18 claims fail with respect to Officer Maron, who searched Ibrahim at the police station, because

19 conducting pat searches of detainees is a facially neutral policy. Ibrahim alleges that Officer

20 Maron attempted to remove her hijab during the search in the presence of male non-family

21 members. She, however, does not allege that Officer Maron permanently removed the hijab from

22 her head. Nor does Ibrahim allege that she requested that she be searched privately or out of the

23 presence of males.

24

To prevail on the claim that Officer Maron violated her right to religious expression,

25 Ibrahim must establish that defendants burdened a belief that was sincerely held and rooted in

26 religion. See Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994). The allegation that Officer

27 Maron temporarily removed Ibrahim’s hijab to search underneath is not sufficient to plead that

28 Officer Maron burdened her right to religious expression. In Khatib v. County of Orange, 2008

15

Case3:06-cv-00545-WHA Document197 Filed07/27/09 Page16 of 19

United States District Court For the Northern District of California

1 WL 822562, at *9 (C.D. Cal. 2008), the plaintiff alleged that the removal of her head scarf and

2 the officers’ refusal to allow her to wear it in the courtroom and court holding cell violated her

3 First Amendment rights. The court denied the motion on the grounds that prolonged uncovering

4 of the plaintiff’s head in the presence of male non-family members was sufficient to plead a free

5 exercise clause violation. In contrast, Officer Maron only temporarily removed Ibrahim’s hijab

6 during the pat search. Ibrahim also does not allege any additional facts to support her claims

7 against Office Maron for violation of her rights to equal protection. Accordingly, plaintiff’s first,

8 fifth, and seventh claims do not survive against Officer Maron, as pled.

9

Therefore, this order holds that plaintiff’s first, fifth, and seventh claims against the San

10 Francisco defendants, including CCSF, SFO, SFPD, SFPD Officers Pate, Cunningham, and

11 Maron, are dismissed. Plaintiff’s second, sixth, and eighth claims against Bondanella are

12 dismissed.

13

4.

CALIFORNIA CIVIL CODE SECTION 52.1 CLAIM

AGAINST DEFENDANTS BONDANELLA AND USIS.

14

Ibrahim’s ninth claim is for interference with the exercise of her civil rights under

15

Section 52.1 of the California Civil Code. Section 52.1 creates a cause of action where a person,

16

whether or not acting under color of law, interferes by threats, intimidation, or coercion with the

17

exercise or enjoyment by any individual of rights secured by the Constitution or laws of the

18

United States or of California. Section 52.1(j) states the following:

19

Speech alone is not sufficient to support an action brought pursuant

20

to subdivision (a) or (b), except upon a showing that the speech

itself threatens violence against a specific person or group of

21

persons; and the person or group of persons against whom the threat

is directed reasonably fears that, because of the speech, violence

22

will be committed against them or their property and that the person

threatening violence had the apparent ability to carry out the threat.

23

Ibrahim claims that defendant Bondanella, and by extension USIS, violated Section 52.1 by

24

threatening her.

25

In order for Ibrahim’s Section 52.1 theory to succeed, it would be necessary for her to

26

have reasonably feared that she would be subjected to violence following a verbal threat. Her

27

second amended complaint merely states that Officer Pate called Bondanella and Bondanella

28

instructed Officer Pate over the telephone to not allow her to fly, to contact the FBI, and to detain

16

Case3:06-cv-00545-WHA Document197 Filed07/27/09 Page17 of 19

United States District Court For the Northern District of California

1 her for questioning. The opposition offers the following gloss on these facts to show how facially

2 non-violent comments could be construed as violent threats: “[a]ny phone call [defendants]

3 would have made would have been perceived by Plaintiff as containing directives on how to

4 interact with her. The fact that she may not have heard what Bondanella was saying did not

5 diminish her awareness of the impact his instructions would have on her” (Opp. 8).

6

As alleged, however, the facts do not support a Section 52.1 claim for two reasons.

7 First, while verbal threats of violence need not be made directly to plaintiff for her to state a

8 claim, it was necessary for them to have been communicated to Ibrahim to be actionable under

9 Section 52.1. She cannot make out a threat claim merely by stating that she speculated that an

10 unheard and unseen party was making threats which might be carried out by officers in her

11 vicinity. Second, Ibrahim does not actually assert that Bondanella’s alleged instructions

12 threatened violence against her. According to the complaint, Bondanella’s only utterances

13 pertained to his instructions to have plaintiff detained. Ibrahim neither alleges that these

14 utterances threatened violence nor does she allege that Bondanella made other violent threats to

15 or concerning her. Without these critical assertions of fact, plaintiff’s Section 52.1 claim does not

16 survive Bondanella and USIS’s motion to dismiss.

17

5.

FALSE IMPRISONMENT CLAIM AGAINST

DEFENDANTS BONDANELLA AND USIS.

18

Defendants Bondanella and USIS argue that plaintiff’s tenth claim for false imprisonment

19

is barred by the one-year statute of limitations. Ibrahim does not contest defendants’ assertion

20

that her claim for false imprisonment accrued when she was detained at the San Francisco airport

21

on January 2, 2005. An action for false imprisonment must be brought within one year of accrual

22

of the action. Cal. Civ. Code § 340(c). The original complaint was filed on January 27, 2006,

23

twenty-five days outside of the statutory period. As she acknowledges that her false

24

imprisonment claim would otherwise be time-barred, Ibrahim relies on equity to toll the statute of

25

limitations.

26

Courts use a three-prong test to evaluate whether equitable tolling is available for a

27

plaintiff’s claim: “(1) timely notice to the defendant in filing the first claim; (2) lack of prejudice

28

to the defendant in gathering evidence to defend against the second claim; and (3) good faith and

17

Case3:06-cv-00545-WHA Document197 Filed07/27/09 Page18 of 19

United States District Court For the Northern District of California

1 reasonable conduct by the plaintiff in filing the second claim.” Lucchesi v. Bar-O Boys Ranch,

2 353 F.3d 691, 694–695 (9th Cir. 2003). In addition, the wrong underlying the second claim must

3 be the same as the wrong underlying the first. Id. at 695.

4

Ibrahim has not adequately pleaded equitable tolling. Ibrahim filed her “first”

5 administrative claim arising from her detainment at the San Francisco airport against the County

6 of San Mateo and the City and County of San Francisco on July 1, 2005. The administrative

7 claim did not name Bondanella or USIS as defendants, or even mention them (Notice Exh. A, B).

8 Timely notice of the claim was therefore not provided to Bondanella or USIS (even if somehow

9 mentioning them could have somehow been made known to them via an unknown municipal

10 courtesy). Acknowledging this at the hearing, plaintiff’s counsel withdrew any opposition on this

11 issue. Accordingly, plaintiff’s false imprisonment claim as asserted against Bondanella and USIS

12 is dismissed.

13

CONCLUSION

14

For the foregoing reasons, defendants’ motions are GRANTED IN PART and DENIED IN

15 PART. Plaintiff’s only claim against the federal defendants — the thirteenth claim — is

16 DISMISSED. Plaintiff’s first, fifth, and seventh claims against the San Francisco defendants

17 CCSF, SFO, SFPD, and SFPD Officers Pate, Cunningham, and Maron are DISMISSED.

18 Plaintiff’s second, sixth, and eighth claims asserted against defendant Bondanella are DISMISSED,

19 and her ninth and tenth claims asserted against both defendants Bondanella and USIS are

20 DISMISSED. Plaintiff’s third, fourth, eleventh, and twelfth claims remain. All other motions are

21 DENIED.

22

On remand, a new case management order established November 30, 2009, as the fact

23 discovery cut-off. By DECEMBER 17, 2009, plaintiff may bring a motion seeking leave to file an

24 amended complaint based upon any new facts learned in discovery and/or new facts learned via

25 an investigation. This assumes that defendants will cooperate in discovery. If defendants do not

26 do so, the Court will consider extending the fact discovery deadline. If an amendment is allowed,

27 it may be necessary to amend the remainder of the case management schedule. Defendants are

28

18

Case3:06-cv-00545-WHA Document197 Filed07/27/09 Page19 of 19

United States District Court For the Northern District of California

1 requested not to bring any summary judgment motions or motions for judgment on the pleadings

2 until fact discovery is completed.

3

4

IT IS SO ORDERED.

5

6 Dated: July 27, 2009. 7

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

19

 
 CCaassee3::069-c1v7-10600545-0W1/H2A1/20D1o0cumPeangt3e1:31 oFfil2ed01D/2k9tE/1n0tryP: 7a2g0e215o2f82
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JAN 21 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

RAHINAH IBRAHIM, an individual, Plaintiff - Appellant,
v. DEPARTMENT OF HOMELAND SECURITY; et al.,
Defendants - Appellees.

No. 09-17160 D.C. No. 3:06-cv-00545-WHA Northern District of California, San Francisco
ORDER

Before: SILVERMAN, PAEZ and BEA, Circuit Judges. Appellant appeals from the district court’s order dismissing claims seeking
injunctive and declaratory relief against various federal defendants. The district court declined to enter final judgment as to the claims under
Federal Rule of Civil Procedure 54(b), and denied appellant’s request to certify the interlocutory order under 28 U.S.C. § 1292(b).
Even assuming the order had the “practical effect of granting, denying, or modifying injunctive relief,” it is not appealable because appellant failed to show in her response to the motion to dismiss that dismissal of the claims had a “‘serious, perhaps irreparable, consequence’” necessary to consider invoking this court’s jurisdiction pursuant to 28 U.S.C. § 1292(a)(1). Carson v. American Brands, Inc., 450 U.S. 79, 83-84 (1981).
LN/MOATT

CCaassee3::069-c1v7-10600545-0W1/H2A1/20D1o0cumPeangt3e1:32 oFfil2ed01D/2k9tE/1n0tryP: 7a2g0e225o2f82
Accordingly, appellees’ motion to dismiss this appeal for lack of jurisdiction is granted. See id.
DISMISSED.

LN/MOATT

2

09-17160

 
 Case3:06-cv-00545-WHA Document327 Filed03/15/10 Page1 of 5

1 JAMES McMANIS (40958) MARWA ELZANKALY (206658)
2 ELIZABETH PIPKIN (243611) CHRISTINE PEEK (234573)
3 McMANIS FAULKNER A Professional Corporation
4 50 W. San Fernando, 10th Floor San Jose, CA 95113
5 Telephone: (408) 279-8700 Facsimile: (408) 279-3244
6 melzankaly@mcmanislaw.com cpeek@mcmanislaw.com
7

8 Attorneys for Plaintiff, Rahinah Ibrahim

9 UNITED STATES DISTRICT COURT
10 NORTHERN DISTRICT OF CALIFORNIA
11 SAN FRANCISCO DIVISION
12

13 RAHINAH IBRAHIM, an individual,

14

Plaintiff,

15 v.

16 DEPARTMENT OF HOMELAND 17 SECURITY, et al.

18

Defendants.

CASE NO. C06-0545 WHA
STIPULATION FOR ENTRY OF JUDGMENT; [PROPOSED] JUDGMENT

Date Action Filed: January 27, 2006

Trial Date:

None

19

20

21

22

23

24

25

26

27

28

Stipulation For Entry of Judgment; [Proposed] Judgment

Case No. C 06-0545 WHA

Case3:06-cv-00545-WHA Document327 Filed03/15/10 Page2 of 5

1

WHEREAS, on January 27, 2006, plaintiff, Rahinah Ibrahim (“plaintiff”), filed her

2 Complaint in the above-entitled action.

3

WHEREAS, on April 2, 2009, plaintiff filed her Second Amended Complaint in the

4 above-entitled action.

5

WHEREAS, plaintiff’s Second Amended Complaint named the following defendants: a)

6 the City and County of San Francisco (which includes the San Francisco Airport and the San

7 Francisco Police Department), Richard Pate, James Cunningham, and Elizabeth Maron

8 (collectively “the San Francisco Defendants”); b) John Bondanella (“Bondanella”) and US

9 Investigations Services, Inc. (now known as Altegrity, Inc.) (“USIS”), based on its alleged

10 employment of Bondanella; and c) the Department of Homeland Security, Janet Napolitano,

11 Michael Chertoff, Tom Ridge, Eric H. Holder, the Terrorist Screening Center, Leonard C. Boyle,

12 Donna A. Bucella, the Federal Bureau of Investigation, Robert Mueller, Arthur M. Cummings,

13 II, the National Counterterrorism Center, Michael E. Leiter, the Department of State, and Hillary

14 Clinton (collectively “the Federal Defendants”)

15

WHEREAS, on June 1, 2009, the Federal Defendants filed a motion to dismiss plaintiff’s

16 Second Amended Complaint.

17

WHEREAS, on July 27, 2009, the Court issued an Order dismissing plaintiff’s claims

18 against the Federal Defendants. At that time, the Court did not enter partial judgment on

19 plaintiff’s claims against the Federal Defendants.

20

WHEREAS, plaintiff’s remaining causes of action against the San Francisco defendants

21 are her Third Cause of Action for violation of her Fourth Amendment rights under the United

22 States Constitution and under 42 U.S.C. § 1983, her Ninth Cause of Action for interference with

23 exercise of civil rights under California Civil Code section 52.1, her Tenth Cause of Action for

24 false imprisonment, her Eleventh Cause of Action for intentional infliction of emotional distress,

25 and her Twelfth Cause of Action for negligent infliction of emotional distress.

26

WHEREAS, plaintiff’s remaining causes of action against Bondanella are her Fourth

27 Cause of Action for violation of her Fourth Amendment rights under the United States

28 Constitution, her Eleventh Cause of Action for Intentional Infliction of Emotional Distress, and

1
Stipulation For Entry of Judgment; [Proposed] Judgment

Case No. C 06-0545 WHA

Case3:06-cv-00545-WHA Document327 Filed03/15/10 Page3 of 5

1 her Twelfth Cause of Action for Negligent Infliction of Emotional Distress.

2

WHEREAS, plaintiff’s remaining causes of action against USIS are her Eleventh Cause

3 of Action for Intentional Infliction of Emotional Distress, and her Twelfth Cause of Action for

4 Negligent Infliction of Emotional Distress.

5

WHEREAS, on March 1, 2010, the San Francisco Defendants, Bondanella and USIS

6 served plaintiff with their Offer To Compromise (attached hereto as Exhibit A) pursuant to Rule

7 68 of the Federal Rules of Civil Procedure, (“Offer to Compromise”), offering to allow entry of

8 judgment as follows:

9

a. Against the City and County of San Francisco (including San Francisco Airport and

10

the San Francisco Police Department) in the amount of One Hundred and Seventy

11

Five Thousand Dollars ($175,000.00.)

12

b. Against USIS in the amount of Fifty Thousand Dollars ($50,000.00.); and

13

c. Said judgments shall be the total amount to be paid for any liability, accrued costs and

14

attorneys’ fees, as against the San Francisco Defendants, Bondanella and USIS.

15

WHEREAS, on March 11, 2010, plaintiff served and filed her Notice of Plaintiff’s

16 Acceptance of Offer to Compromise (“Notice of Acceptance”), attached hereto as Exhibit B.

17

WHEREAS, in her Notice of Acceptance, plaintiff stated that her acceptance applies only

18 as to the defendants who made the Offer to Compromise, namely the San Francisco Defendants,

19 Bondanella and USIS. Plaintiff specifically reserved the right to pursue her claims against the

20 Federal Defendants.

21

NOW THEREFORE, plaintiff, the San Francisco Defendants, Bondanella, and USIS, by

22 and through their respective counsel, hereby stipulate as follows:

23

1. Pursuant to the Court’s Order dated July 27, 2009, granting the Federal

24 Defendants’ motion to dismiss, judgment shall be entered in favor of the Federal Defendants.

25 Plaintiff reserves her right to appeal the Court’s Order dismissing the Federal Defendants and

26 final entry of judgment in their favor.

27

2. Pursuant to the Offer to Compromise, and the Notice of Acceptance, judgment

28 shall be entered in plaintiff’s favor in the total amount of $225,000.00, as follows:

2
Stipulation For Entry of Judgment; [Proposed] Judgment

Case No. C 06-0545 WHA

Case3:06-cv-00545-WHA Document327 Filed03/15/10 Page4 of 5

1

a. against the City and County of San Francisco (which includes the San

2 Francisco Police Department and the San Francisco Airport), in the total amount of One Hundred

3 and Seventy Five Thousand Dollars ($175,000.00); and

4

b. against USIS in the total amount of Fifty Thousand Dollars ($50,000.00).

5

3. Plaintiff shall dismiss, with prejudice, her claims against Bondanella, Richard

6 Pate, James Cunningham, and Elizabeth Maron.

7

4. As among plaintiff, the San Francisco defendants, Bondanella, and USIS, all

8 parties are to bear their own costs and attorneys’ fees.

9

5. Plaintiff does not release or waive any right to recover her costs or attorneys’ fees

10 against the Federal Defendants.

11 Dated: March 15, 2010
12

McMANIS FAULKNER

13 14 15 16
Dated: March 15, 2010 17 18 19 20 21 22 23 24
Dated: March 15, 2010 25

By: /s/ Marwa Elzankaly MARWA ELZANKALY
Attorneys for Plaintiff RAHINAH IBRAHIM
DENNIS J. HERRERA, City Attorney JOANNE HOEPER, Chief Trial Deputy RONALD P. FLYNN, Deputy City Attorney PETER J. KEITH, Deputy City Attorney
By: /s/ Peter Keith PETER J. KEITH, Esq.
Attorney for Defendants SAN FRANCISCO AIRPORT, CITY AND COUNTY OF SAN FRANCISCO, SAN FRANCISCO POLICE DEPARTMENT, JAMES F. CUNNINGHAM, ELIZABETH MARON AND RICHARD E. PATE
ARNOLD & PORTER LLP

26

By: /s/ Sharon Douglass Mayo

SHARON DOUGLASS MAYO, Esq. 27

Attorneys for Defendants

28

U.S. INVESTIGATIONS SERVICES, INC. and

JOHN BONDANELLA

3

Stipulation For Entry of Judgment; [Proposed] Judgment

Case No. C 06-0545 WHA

Case3:06-cv-00545-WHA Document327 Filed03/15/10 Page5 of 5

1

[PROPOSED] JUDGMENT

2

Pursuant to the Court’s Order of July 27, 2009, and pursuant to the parties’ stipulation,

3 this Court enters judgment as follows:

4

1. Pursuant to the Court’s Order dated July 27, 2009, granting the motion to dismiss

5 of defendants, Department of Homeland Security, Janet Napolitano, Michael Chertoff, Tom

6 Ridge, Eric H. Holder, the Terrorist Screening Center, Leonard C. Boyle, Donna A. Bucella, the

7 Federal Bureau of Investigation, Robert Mueller, Arthur M. Cummings, II, the National

8 Counterterrorism Center, Michael E. Leiter, the Department of State, and Hillary Clinton

9 (collectively “the Federal Defendants”), judgment is hereby entered in favor of the Federal

10 Defendants.

11

2. Pursuant to the March 1, 2010, Offer to Compromise, and the March 11, 2010,

12 Notice of Acceptance, judgment is hereby entered in favor of plaintiff, Rahinah Ibrahim

13 (“plaintiff”), in the total amount of TWO HUNDRED AND TWENTY FIVE THOUSAND

14 DOLLARS ($225,000.00), as follows:

15

a. against the City and County of San Francisco (which includes the San

16 Francisco Police Department and the San Francisco Airport), in the total amount of ONE

17 HUNDRED AND SEVENTY FIVE THOUSAND DOLLARS ($175,000.00); and

18

b. against US Investigations Services, Inc. (“USIS”), in the total amount of

19 FIFTY THOUSAND DOLLARS ($50,000.00).

20

3. Plaintiff’s claims against defendants, John Bondanella, (“Bondanella”) Richard

21 Pate, James Cunningham, and Elizabeth Maron, are hereby dismissed with prejudice.

22

4. As among plaintiff, the City and County of San Francisco, Richard Pate, James

23 Cunningham, Elizabeth Maron, Bondanella and USIS, all parties are to bear their own costs and

24 attorneys’ fees.

25 IT IS SIOT OISRSDOEROERDD,EARDEJDU.DTGHEEDC, LAENRDKDSHEACLRLECELDO. SE THE FILE.

TATES DISTRICT C

26 27 DATED: _M__a_rc_h__1_5_, _2_0_1_0_. __

APPROVED

28

UNITED STATES DISTRICT JUDJuGdgEe William Alsup

4
Stipulation For Entry of Judgment; [Proposed] Judgment

CasEeRNNo.DCIS0T6-R0I5C45TWOHF AC

UNITED S ALIFORNIA

OURT NORTH

 
 CaseC:a1s0e-31:50867-c3v-00524/058-W/20H1A2 DoIDc:u8m0e6n0t831437 FDilekdtE0n2t/r0y9:/612-1PagPea1geo:f 136of 36

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RAHINAH I BRAHIM, an individual,



Plaintiff-Appellant,

v.

DEPARTMENT OF H OMELAND

SECURITY; M ICHAEL C HERTOFF, in

his official capacity as the former

Secretary of the Department of

Homeland Security; T OM R IDGE, in

his official capacity as the former

Secretary of the Department of

Homeland Security; T ERRORIST

SCREENING C ENTER; D ONNA

BUCELLA, in her official capacity

 as former Director of the Terrorist
Screening Center; F EDERAL B UREAU

OF I NVESTIGATION; R OBERT S.

MUELLER, III, in his official

capacity as Director of the Federal

Bureau of Investigation; J ANET

NAPOLITANO, in her official

capacity as Secretary of the

Department of Homeland security;

ERIC H. H OLDER Jr., Attorney

General, in his official capacity as

Attorney General; A RTHUR M.

CUMMINGS, II, in his official

capacity as Executive Assistant

Director of the FBI’s National

Security Branch; N ATIONAL



No. 10-15873
D.C. No. 3:06-cv-00545-
WHA
OPINION

1291

CaseC:a1s0e-31:50867-c3v-00524/058-W/20H1A2 DoIDc:u8m0e6n0t831437 FDilekdtE0n2t/r0y9:/612-1PagPea2geo:f 236of 36

1292

IBRAHIM v. DHS

COUNTERTERRORISM C ENTER;



MICHAEL E. L EITER, in his official

capacity as Director of the

National Counterterrorism Center;

DEPARTMENT OF S TATE; H ILARY

CLINTON, in her official capacity as

Secretary of State; J OHN

BONDANELLA, an individual; US INVESTIGATIONS S ERVICES, I NC., a



Virginia corporation; C ITY AND

COUNTY OF S AN F RANCISCO; S AN

FRANCISCO A IRPORT; S AN F RANCISCO

POLICE D EPARTMENT; R ICHARD

PATE, an individual; J OHN

CUNNINGHAM, an individual;

ELIZABETH M ARON, an individual,

 Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California
William H. Alsup, District Judge, Presiding
Argued and Submitted May 9, 2011—San Francisco, California
Filed February 8, 2012
Before: Dorothy W. Nelson and William A. Fletcher, Circuit Judges, and Kevin Thomas Duffy, District Judge.*
Opinion by Judge William A. Fletcher; Dissent by Judge Duffy
*The Honorable Kevin Thomas Duffy, District Judge for the U.S. District Court for Southern New York, New York, sitting by designation.

CaseC:a1s0e-31:50867-c3v-00524/058-W/20H1A2 DoIDc:u8m0e6n0t831437 FDilekdtE0n2t/r0y9:/612-1PagPea3geo:f 36of 36

1296

IBRAHIM v. DHS COUNSEL

James McManis, Marwa Elzankaly, Christine Peek, Elizabeth Pipkin, McMANIS FAULKNER, San Jose, California, for the appellant.

Paul G. Freeborne, Douglas Neal Letter, Joshua P. Waldman, US DEPARTMENT OF JUSTICE, Washington, D.C.; Sharon Douglass Mayo, ARNOLD & PORTER, San Francisco, California; and Ronald P. Flynn, Peter Julian Keith, SAN FRANCISCO CITY ATTORNEY’S OFFICE, San Francisco, California, for the appellees.

Veena Dubal, ASIAN LAW CAUCUS, San Francisco, California, and Maria V. Morris, Sanford Jay Rosen, ROSEN BIEN & GALVAN, LLP, San Francisco, California, for the amici curiae.

OPINION
W. FLETCHER, Circuit Judge:
Plaintiff Rahinah Ibrahim is a citizen of Malaysia and mother of four children. She was legally in the United States from 2001 to 2005 as a Ph.D. student at Stanford University. She alleges that the U.S. government has mistakenly placed her on the “No-Fly List ” and other terrorist watchlists. On January 2, 2005, she attempted to travel to a Stanfordsponsored conference in Malaysia where she was to present her doctoral research. She was prevented from flying and was detained in a holding cell for two hours at the San Francisco airport. She was allowed to fly to Malaysia the next day, but she was prevented from returning to the United States after the conference. Ibrahim has not been permitted to return to the United States.

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Ibrahim brought suit in federal district court seeking, among other things, injunctive relief under the First and Fifth Amendments, with the ultimate aim of having her name removed from the government’s watchlists. The district court denied injunctive relief. We reverse and remand for further proceedings.

I. Factual Background

A. Ibrahim’s Departure

Ibrahim is Associate Professor and Deputy Dean of Research, Postgraduate Studies and International Affairs at the Faculty of Design and Architecture of the University Putra Malaysia in Serdang, Malaysia. She has a Ph.D. in Construction Engineering and Management from Stanford University in California, where she studied from 2001 to 2005 under a student visa.

This case has never gone beyond the complaint stage. For the narrative that follows, we rely on allegations in Ibrahim’s complaint and on statements in her declaration in the district court, assuming those allegations and statements to be true for purposes of our review. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23 (2007).

On January 2, 2005, Ibrahim attempted to fly to Kuala Lumpur, Malaysia, to present the results of her doctoral research at a Stanford-sponsored conference. She arrived at the San Francisco airport at about 7 a.m. for a 9 a.m. flight, accompanied by her 14-year old daughter and a friend. She requested wheelchair assistance to the gate because she was recovering from medical complications from a hysterectomy. When Ibrahim tried to check in at the ticket counter, a United Airlines employee, David Nevins, discovered her name on the federal government’s No-Fly List. Instead of issuing her a boarding pass, Nevins called the San Francisco police.

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When San Francisco police officers arrived, they called the Transportation Security Operations Center, 1 a division of the federal Transportation Security Agency ( “TSA”). A federal contractor employed by US Investigation Services, Inc., John Bondanella, answered the call. Bondanella told the police to prevent Ibrahim from flying, to contact the FBI, and to detain Ibrahim for questioning.

At 8:45 a.m., fifteen minutes before her flight was scheduled to leave, San Francisco police officers handcuffed Ibrahim. They took her to a police station in the airport, searched her, and locked her in a holding cell. No one explained to Ibrahim why she had been arrested and detained. After about two hours, the FBI requested that the officers release her. Ibrahim was told by an unspecified person that her name no longer appeared on the No-Fly List.

The next day, Ibrahim went to the San Francisco airport to catch a different flight. An unspecified person told her that she was again (or still) on the No-Fly List. She was nonetheless allowed to fly to the Stanford-sponsored conference in Malaysia. She was subjected to enhanced screening at the San Francisco airport and at all stops en route to Kuala Lumpur.

Ibrahim was scheduled to return to Stanford to complete work on her Ph.D. on March 10. But when she arrived at the Kuala Lumpur airport, she was told by a ticketing agent that she would have to wait for clearance from the United States Embassy before she could board. Another ticketing agent told her that a note by her name instructed airport personnel to call the police and have her arrested. Ibrahim was not arrested but was prevented from boarding her scheduled return flight. She has never been permitted to return to the United States.

1Subsequently renamed “The Freedom Center.” Transportation Security Administration, Transportation Security Operations Center Re-Named Freedom Center, at http://www.tsa.gov/press/speeches/freedom_ dedication.shtm (last visited Aug. 30, 2011).

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On March 24, 2005, Ibrahim submitted a request through TSA’s “Passenger Identity Verification ” program to clear her name. TSA failed to respond for approximately one year, and only did so after Ibrahim filed this suit. In a form letter, TSA responded to Ibrahim’s request by explaining that “[if] it has been determined that a correction to records is warranted, these records have been modified. ” The letter did not state whether Ibrahim was, or was not, on the No-Fly List or other terrorist watchlists.

On April 14, 2005, an American consul in Malaysia sent Ibrahim a letter informing her that the Department of State had revoked her student visa on January 31, 2005, a month after her departure from the United States. The letter cited Ibrahim’s “possible ineligibility” under § 212(a)(3)(B) of the Immigration & Nationality Act (INA) as the reason for the revocation. That section of the INA provides, among other things, that “[a]ny alien ” (1) who “has engaged in terrorist activity”; (2) who “a consular officer, the Attorney General, or the Secretary of Homeland Security knows, or has reasonable ground to believe, is engaged in or is likely to engage after entry in any terrorist activity ”; or (3) who “has, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity, ” is inadmissible to the United States. 8 U.S.C. § 1182(a)(3)(B). The letter further stated that revocation of Ibrahim’s visa did “not necessarily indicate that [she was] ineligible to receive a U.S. visa in the future.” “That determination,” the letter continued, “can only be made at such time as you apply for a new visa. ” Ibrahim applied for a new visa after she filed this lawsuit. We take judicial notice that the Department of State denied her application on December 14, 2009, during the pendency of this appeal. In a form letter with a series of boxes, a consular officer marked a box indicating that INA § 212(a)(3)(B) formed the basis of the denial of her visa. The letter did not explain how the consular officer arrived at his determination that she was suspected of terrorist activities.

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Ibrahim’s inability to return to the United States has limited her academic and professional activities. She currently participates in a long-term project with Stanford to improve Malaysia’s construction industry. If she were not prevented from doing so, she would return to Stanford once a year to work on the project. The Malaysian university where Ibrahim currently teaches participated in a summer program at Stanford’s Center for Integrated Facility Engineering. Although Ibrahim was her school’s representative to Stanford, she was unable to participate in the program. Ibrahim collaborates with Stanford Professors Raymond Levitt and Renate Fruchter, and has coauthored several papers with Professor Fruchter. Ibrahim has stated in an affidavit that she is “occasionally able to meet face-to-face with U.S. citizens outside the United States ” but has “otherwise had to use video conferencing and email instead, both of which are poor substitutes for face-to-face contact.” Selangor, a provincial government in Malaysia, also asked Ibrahim to act as its representative at a conference in San Francisco but she was unable to attend.

Ibrahim has close friends at Stanford whom she remains unable to visit. Her thesis advisor at Stanford, Professor Boyd Paulson, died in December 2005. Professor Paulson’s widow asked Ibrahim to speak at his memorial service, but she was unable to attend. Ibrahim states that she would like to “finally . . . say goodbye to him at his grave. ”

B. The Government’s Terrorist Watchlists

Since the terrorist attacks of September 11, 2001, the federal government has assembled a vast, multi-agency, counterterrorism bureaucracy that tracks hundreds of thousands of individuals. See, e.g., 6 U.S.C. §§ 122, 124h, 482, 485; Exec. Order No. 13388, 70 Fed. Reg. 62023 (Oct. 25, 2005). At the heart of this bureaucracy is the Terrorist Screening Center (“TSC”). Established by the Attorney General in 2003 pursuant to a presidential directive, the mission of TSC is “to consolidate the Government’s approach to terrorism screening

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and provide for the appropriate and lawful use of Terrorist
Information in screening processes. ” See Homeland Security
Presidential Directive/HSPD-6. Though administered by the
FBI, TSC retains personnel from the Departments of State, Homeland Security, and Defense, and other federal agencies. 2

TSC manages the Terrorist Screening Database ( “TSDB”), the federal government’s centralized watchlist of known and suspected terrorists. The National Counterterrorism Center nominates known and suspected international terrorists to the TSDB, while the FBI nominates known and suspected domestic terrorists. TSC distributes subsets of the TSDB to other federal agencies to help implement the government’s counterterrorism initiatives. TSA uses two subsets of the TSDB — the No-Fly List and the Selectee List — to screen airline passengers. Individuals on the No-Fly List are prohibited from boarding American carriers or any flight having virtually any contact with U.S territory or airspace. Individuals on the Selectee List are subject to enhanced security screening before boarding an airplane. 3 The State Department uses a subset of the TSDB to screen visa applicants through the Consular Lookout and Support System. 4

The evidence and procedures used to nominate individuals to the TSDB are kept secret from the general public, as are the names of those in the TSDB. However, thousands of front line law enforcement officers from federal, state, local, territorial, and tribal agencies have access to the TSDB, as do some pri-

2Five Years After the Intelligence Reform and Terrorism Prevention Act: Stopping Terrorist Travel : Hearing Before the S. Comm. on Homeland Sec. and Governmental Affairs, 111th Cong. 1-2 (Dec. 9, 2009) (Statement of Timothy J. Healy, Director, Terrorist Screening Center) [hereinafter “Healy Statement”].
3U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-08-110, TERRORIST WATCHLIST SCREENING: O PPORTUNITIES E XIST TO E NHANCE M ANAGEMENT O VERSIGHT, REDUCE VULNERABILITIES IN AGENCY SCREENING PROCESSES, AND EXPAND USE OF THE L IST 30 (2007) [hereinafter “2007 GAO Report ”].
4Id. at 30.

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vate sector entities and individuals. 5 As of January 2011, TSC
had also agreed to share information with 22 foreign governments.6

Since its inception, the TSDB has grown by more than
700%, from about 158,000 records in June 2004 to over 1.1
million records in May 2009. In 2007, these records contained information on approximately 400,000 individuals. 7 As of
2007, the TSDB was increasing at a rate of 20,000 records per month.8 TSC makes 400 to 1200 changes to the TSDB every day.9 It is the “world’s most comprehensive and widely shared database of terrorist identities. ”10

In theory, only individuals who pose a threat to civil aviation are put on the No-Fly and Selectee Lists, but the Justice Department has criticized TSC for its “weak quality assurance process.”11 In July 2006 — after the events that gave rise to this lawsuit — there were 71,872 records in the No-Fly List. After an internal review, TSC downgraded 22,412 records

5U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-10-401T, HOMELAND SECURITY: B ETTER U SE OF T ERRORIST W ATCHLIST I NFORMATION AND I MPROVEMENTS IN DEPLOYMENT OF PASSENGER SCREENING CHECKPOINT TECHNOLOGIES COULD FURTHER S TRENGTHEN S ECURITY 2 (2010) [hereinafter “2010 GAO Statement”].
6U.S. G OV’T A CCOUNTABILITY O FFICE, GAO-11-335, V ISA W AIVER P ROGRAM: DHS H AS IMPLEMENTED THE ELECTRONIC SYSTEM FOR TRAVEL AUTHORIZATION, BUT F URTHER S TEPS N EEDED TO A DDRESS P OTENTIAL P ROGRAM RISKS 21 n.24 (2011) [hereinafter “2011 GAO Report ”].
72007 GAO REPORT at 8; U.S. D EP’T OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL, A UDIT D IVISION, A UDIT R EPORT 09-25, T HE F EDERAL B UREAU OF INVESTIGATION’S T ERRORIST W ATCHLIST N OMINATION P RACTICES i-ii & n.4 (2009) [hereinafter “2009 DOJ Report ”].
8U.S. D EP’T OF J USTICE, O FFICE OF THE I NSPECTOR G ENERAL, A UDIT DIVISION, A UDIT R EPORT 07-41, F OLLOW-UP A UDIT OF THE T ERRORIST SCREENING C ENTER iii (2007) (hereinafter “2007 DOJ Report ”).
9Healy Statement at 2.
10Id. at 1.
112007 DOJ R EPORT at iii.

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from the No-Fly List to the Selectee List and deleted entirely
an additional 5,086 records. By January 2007, the TSC had cut the No-Fly List by more than half, to 34,230 records. 12
Tens of thousands of travelers have been misidentified
because of misspellings and transcription errors in the nomi-
nation process, and because of computer algorithms that imperfectly match travelers against the names on the list. 13
TSA maintains a list of approximately 30,000 individuals who
are commonly confused with those on the No-Fly and Selectee Lists.14 One major air carrier reported that it encountered 9,000 erroneous terrorist watchlist matches every day during April 2008. 15

Nomination and identification errors are so common that TSC organized a redress unit in 2007 to deal with complaints. The redress procedures have been opaque. A 2006 GAO report stated that an individual who submitted a query to TSC’s redress unit received an initial response letter that “neither confirms nor denies the existence of any terrorist watch list records relating to the individual. ”16 A 2009 internal DHS report stated, “With few exceptions, redress-seekers receive response letters that do not reveal the basis for their travel difficulties, the action the government took to address those difficulties, or other steps that they may take to help themselves in the future. ”17

12Id. at 32-33 & n.49.
13U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-06-1031, TERRORIST WATCH LIST S CREENING, E FFORTS TO H ELP R EDUCE A DVERSE E FFECTS ON THE P UBLIC 2, 4-6, 19-20 (2006) [hereinafter “2006 GAO Report ”].
14Id. at 34. 15DEP’T OF HOMELAND SEC., OFFICE OF INSPECTOR GENERAL, OIG-09-103, EFFECTIVENESS OF THE D EPARTMENT OF H OMELAND S ECURITY T RAVELER REDRESS INQUIRY PROGRAM (REDACTED) 37 (2009) [hereinafter “2009 DHS Report”]. 16See 2006 GAO Report at 31. 172009 DHS Report at 89.

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When Ibrahim filed suit, TSA managed a Passenger Identity Verification program for travelers who believed that they were mistakenly put on the No-Fly or Selectee List. In place of that program, the Department of Homeland Security (“DHS”) now manages the Traveler Redress Inquiry Program (“TRIP”). A 2007 Department of Justice audit commended TSC for accurately resolving redress queries, but noted that 45% of the reviewed records contained an error. 18 The 2009 DHS report was less charitable, concluding that the “TRIP website advises travelers that the program can assist them with resolving a range of travel difficulties. Our review of redress results revealed that those claims are overstated. While TRIP offers effective solutions to some traveler issues, it does not address other difficulties effectively, including the most common — watch list misidentifications in aviation security settings. ”19

II. Procedural Background

On January 27, 2006, Ibrahim filed suit against DHS, TSA, TSC, the FBI, the Federal Aviation Administration ( “FAA”), and individuals associated with these entities (collectively, “the federal defendants ”); the City and County of San Francisco, the San Francisco Police Department, the San Francisco Airport, the County of San Mateo, and individuals associated with these entities (collectively, “the city defendants ”); and United Airlines, UAL corporation, and individuals associated with these entities (collectively, “the private defendants ”). Ibrahim asserted § 1983 claims and state-law tort claims arising out of her detention at the San Francisco airport, as well as several constitutional claims based on the inclusion of her name on government terrorist watchlists. The district court dismissed her claims against the federal defendants under 49 U.S.C. § 46110(a), which vests exclusive original jurisdiction

182007 DOJ Report at xix. 192009 DHS Report at 33-34.

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in the courts of appeals over suits challenging security orders issued by TSA.

A panel of this court reversed in part the district court’s dismissal of the federal defendants. We held that § 46110(a) does not bar district court jurisdiction over Ibrahim’s challenges to her placement on the government terrorist watchlists, including the No-Fly List, because the lists are managed by TSC rather than TSA. Ibrahim v. Dep’t of Homeland Sec. , 538 F.3d 1250, 1254-56 (9th Cir. 2008). We held, however, that § 46110(a) requires all challenges to TSA’s policies and procedures implementing the No-Fly and other lists to be filed directly in the court of appeals. Id. at 1256-57. 20

After remand, Ibrahim filed a Second Amended Complaint (“SAC”). In Claim 13 of her SAC, Ibrahim asserted several causes of action against the remaining federal defendants. Ibrahim alleges in Claim 13 that the inclusion of her name on the government’s terrorist watchlists violates her First Amendment right to freedom of association and her Fifth Amendment rights to due process and equal protection. She also alleges that the federal defendants violated the Administrative Procedure Act ( “APA”), which we construe as an allegation that the APA waives the sovereign immunity of the United States, thereby allowing her claims under the First and Fifth Amendments and authorizing remedies for those claims. See Ibrahim, 538 F.3d at 1254. Ibrahim asks for an injunction that would require the government to take her name off its terrorist watch lists, including the No-Fly List, or, in the alternative, to provide procedures under which she could challenge her inclusion on those lists.

20Ibrahim had also filed a petition directly with the Ninth Circuit pursuant to § 46110(a). Because Ibrahim no longer resides in California, the panel transferred that petition to the D.C. Circuit. Ibrahim, 538 F.3d at 1253 n.2. Proceedings there are being held in abeyance pending resolution of this appeal. Id.

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The federal defendants moved to dismiss Claim 13 for lack of standing and for failure to state a claim upon which relief can be granted. The government contended that Ibrahim has no standing under Article III of the Constitution. The government contended, further, that Ibrahim has no right to assert claims under the First and Fifth Amendments because she is an alien who has voluntarily left the United States.

The district court held that Ibrahim has standing. The district court speculated that Ibrahim’s inclusion in the No-Fly List might be a “monumental mistake, ” but nonetheless dismissed Claim 13, holding that Ibrahim was “an alien who voluntarily left the United States and thus left her constitutional rights at the water’s edge. ”

Ibrahim has settled her claims against the non-federal defendants. She appeals the dismissal of her Claim 13 against the federal defendants. She also appeals discovery rulings.

III. Standard of Review

We review de novo a district court’s dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Alonzo v. ACF Prop. Mgmt., Inc ., 643 F.2d 578, 579 (9th Cir. 1981). A complaint must state a claim for relief that is “plausible on its face. ” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). The facts in the complaint are liberally construed in the plaintiff’s favor and are generally accepted as true. Id. The complaint, however, must allege “more than a sheer possibility that a defendant has acted unlawfully.” Id. We review discovery orders for abuse of discretion. Laub v. US Dep’t of Interior , 342 F.3d 1080, 1084 (9th Cir. 2003).

IV. Discussion

A. Standing

“To satisfy Article III’s standing requirements, a plaintiff must show (1) she has suffered an ‘injury in fact’ that is (a)

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concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. ” Berhardt v. Cnty. of Los Angeles, 279 F.3d 862, 868-69 (9th Cir. 2002) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)). A plaintiff has the burden of showing that she has standing. See Takhar v. Kessler , 76 F.3d 995, 1000 (9th Cir. 1996) (quoting Warth v. Seldin , 422 U.S. 490, 501 (1975)).

[1] Ibrahim seeks only prospective relief against the federal defendants. To establish standing under Article III, she “must demonstrate that [s]he is realistically threatened by a repetition of the violation,” Armstrong v. Davis, 275 F.3d 849, 860-61 (9th Cir. 2001) (internal quotation marks, alterations, and emphasis omitted), abrogated on other grounds by Johnson v. California, 43 U.S. 499, 504-05 (2005), or show a credible threat of future injury, City of Los Angeles v. Lyons , 461 U.S. 95, 106 (1983).

[2] The government makes three standing arguments under Article III. First, it argues that Ibrahim has failed to allege that she is still on a government watchlist. The government refuses to confirm or deny whether Ibrahim is on a watchlist, but it contends that her SAC compels the conclusion that she is not now on the No-Fly List, given that she was allowed to fly to Malaysia the day after she was detained. The government ascribes the boarding denial in Malaysia to Ibrahim’s lack of a visa. Second, the government argues that a favorable judicial decision will not redress Ibrahim’s injury. The government notes that the revocation of Ibrahim’s student visa and her inability to obtain a new one independently bars Ibrahim from entering the United States, and that consular decisions denying visas are immune from judicial review. Third, the government argues that Ibrahim’s injury is hypothetical because she has no immediate plans to travel.

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[3] The government’s first argument is easily answered. The reasonable inference to draw from Ibrahim’s complaint is that she is on one or more government watchlists. When she flew from San Francisco to Malaysia, she was subject to enhanced searches at the San Francisco Airport and all subsequent stopovers. In general, only individuals who are on the government’s Selectee List are subject to such searches. In Malaysia, a ticketing agent told Ibrahim that a note by her name instructed airport personnel to have her arrested. Would-be travelers to the United States are not typically subject to arrest before boarding merely for lacking a proper visa. When the State Department revoked Ibrahim’s student visa, it cited INA § 212(a)(3)(B), which bars entry of any persons known or suspected to be connected to terrorism. When Ibrahim applied for a new visa, the State Department denied her application for the same reason. The State Department reviews the Consular Lookout and Support System — a subset of the TSDB — to make visa determinations.

The government’s second argument, that a favorable decision will not redress her injury, is also unpersuasive. The government mischaracterizes Ibrahim’s injury by focusing solely on her inability to return to the United States. The No-Fly List prevents her from boarding any U.S. carrier, whether or not a flight departs from or lands in the United States. It also prevents her from flying over U.S. airspace. These are injuries unrelated to her lack of a visa. Further, TSC shares the TSDB with 22 foreign governments. We can reasonably infer that Ibrahim will suffer delays (or worse) when traveling abroad, even on foreign carriers, resulting from the presence of her name on the No-Fly List.

[4] Even if Ibrahim’s injury were limited to her inability to enter the United States, she would still have standing. Ibrahim does not challenge the revocation of her visa, as decisions of consular officers to deny a visa are immune from judicial review. See Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th Cir. 2008). But it is a reasonable inference that removal of her

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name from government watchlists would make a grant of a visa more likely. If Ibrahim’s name were removed from the TSDB, and thereby removed from the Consular Lookout and Support System, the State Department would be more likely to grant her a visa, given that it has relied on her alleged connection to terrorism as the basis for revoking her visa and denying her application for a new one. Though Ibrahim’s future ability to obtain a visa is uncertain and we would be powerless to review a denial, “plaintiffs need not demonstrate that there is a ‘guarantee’ that their injuries will be redressed by a favorable decision . . . [P]laintiffs must show only that a favorable decision is likely to redress [their injuries], not that a favorable decision will inevitably redress [their injuries].” Wilbur v. Locke , 423 F.3d 1101, 1108 (9th Cir. 2005) (internal quotations omitted, emphasis and alterations in original) (quoting Graham v. FEMA, 149 F.3d 997, 1003 (9th Cir. 1998), abrogated on other grounds by Levin v. Commerce Energy, Inc., 130 S. Ct. 2323 (2010). As the district court correctly observed, “While obtaining a visa may stand as a potential obstacle to her entry into the United States, it does not completely foreclose redressability. Ibrahim is not required to solve all roadblocks simultaneously and is entitled to tackle one roadblock at a time. ”

[5] The government’s third argument, that Ibrahim’s injuries are hypothetical because she has no immediate plans to travel, is also unpersuasive. It is by no means clear that Ibrahim has no plans to travel to non-US destinations. As noted above, the presence of her name on the government’s No-Fly List imposes real limitations on such travel. Further, it is obvious from her SAC that Ibrahim will return to the United States if permitted to do so. Ibrahim regularly collaborates with professors in the United States, is a member of several professional organizations in the United States, and has an extensive network of close friends in the United States. Ibrahim has been invited to return to the United States on several occasions since filing this lawsuit and has been obliged to decline every invitation because of the legal obstacles to her

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return. These are not hypothetical “ ‘some day’ intentions. ” Lujan v. Defenders of Wildlife , 504 U.S. 555, 564 (1992).

[6] We therefore agree with the district court that Ibrahim has standing under Article III to challenge the presence of her name on government watchlists.

B. Constitutional Claims

Claim 13 of the SAC alleges that the placement of Ibra-
him’s name on the government’s terrorist watchlists violates
her right to freedom of association under the First Amend-
ment and her rights to equal protection and due process under the Fifth Amendment. 21

At this point in the litigation, no court has attempted to determine the merits of Ibrahim’s claims under the First and Fifth Amendments. The parties have not briefed whether her placement on a terrorist watchlist violates her rights to freedom of association, equal protection, and due process. The only question before us is whether Ibrahim even has the right to assert such claims.

21Claim 13 also alleges a violation of the Fourteenth Amendment, but Ibrahim’s brief on appeal makes clear that this allegation refers to the equal protection component of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497 (1954). The heading to Claim 13 also alleges a violation of the Fourth Amendment, but the body of Claim 13 makes no reference to the Fourth Amendment, and Ibrahim’s brief on appeal makes clear that she is alleging claims under only the First and Fifth Amendments.
Claim 13 also alleges violation of the Administrative Procedure Act, 5 U.S.C. § 500 et seq. We understand this to be an allegation that the APA waives the sovereign immunity of the United States for violations of the First and Fifth Amendments and authorizes remedies for such violations. The government contends that Ibrahim has waived any right to appeal the district court’s denial of her claim under the APA. We disagree, given that Ibrahim’s APA claim ultimately depends on the viability of her First and Fifth Amendment claims. See Califano v. Sanders , 430 U.S. 99, 105 (1977) (holding APA does not provide an independent basis for subject matter jurisdiction in district courts).

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[7] We begin with the uncontested proposition that if Ibrahim had remained in the United States, she would have been able to assert claims under the First and Fifth Amendments to challenge her placement on the government’s terrorist watchlists. It is well established that aliens legally within the United States may challenge the constitutionality of federal and state actions. See, e.g., Examining Bd. of Engineers, Architects and Surveyors v. Flores de Otero , 426 U.S. 572, 580 (1976) ; Mathews v. Diaz , 426 U.S. 67, 77 (1976); Hampton v. Mow Sun Wong, 426 U.S. 88, 101-03 (1976); Sugarman v. Dougall, 413 U.S. 634, 641 (1973); Kwong Hai Chew v. Colding , 344 U.S. 590, 596 (1953); Torao Takahashi v. Fish and Game Comm’n, 334 U.S. 410, 419-20 (1948). Even aliens who are in the United States illegally may bring constitutional challenges, see, e.g. , Plyler v. Doe , 457 U.S. 202, 211-12 (1982); Wong Wing v. United States , 163 U.S. 228, 237 (1896), including the ability to challenge the revocation of a visa, see ANA Int’l Inc. v. Way , 393 F.3d 886, 893-84 (9th Cir. 2004) (allowing judicial review of INS decision to revoke temporary worker visa for purely legal questions, including constitutional challenges). The question in this case is whether Ibrahim lost the right she otherwise had because she left the United States.

The Supreme Court has held in a series of cases that the

border of the United States is not a clear line that separates

aliens who may bring constitutional challenges from those

who may not. For example, a resident alien who voluntarily

leaves the United States on a brief trip with an intent to return

is constitutionally entitled to a due process hearing if the gov-

ernment seeks to exclude her upon return to the United States.

See, e.g., Landon v. Plasencia , 459 U.S. 21, 34 (1982) (resi-

dent alien entitled to constitutional due process hearing in

exclusion proceedings upon re-entry after a

“few days ”

abroad); Rosenberg v. Fleuti, 374 U.S. 449, 450 (1963) (entry

after innocent, casual, and brief excursion abroad did not

qualify as “entry” for immigration purposes) ; Kwong Hai

Chew, 344 U.S. at 593-95 (resident alien entitled to constitu-

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tional due process hearing after exclusion following a fivemonth voyage abroad). See also Boumediene v. Bush , 553 U.S. 723 (2008) (aliens held as enemy combatants outside the de jure sovereign territory of the United States may petition for habeas corpus to challenge the constitutionality of their detention); Al Maqaleh v. Gates , 605 F.3d 84, 95-96 (D.C. Cir. 2010) (location of alien outside the United States is only a factor in determining the extraterritorial reach of the Constitution); Nat’l Council of Resistance of Iran v. Dep’t of State , 251 F.3d 192 (D.C. Cir. 2001) (a foreign organization with property in the United States entitled to constitutional due process hearing before Secretary of State may classify it as a “foreign terrorist organization”); Cardenas v. Smith, 733 F.2d 909, 915 (D.C. Cir. 1984) (Colombian national outside the United States entitled to assert due process claim against U.S. government based on seizure of her Swiss bank account); In re Aircrash in Bali, Indonesia on April 22, 1974 , 684 F.2d 1301, 1308 n.6 (9th Cir. 1982) (nonresident aliens suing on same cause of action as citizens have the right to assert takings claim).

[8] In United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), the Supreme Court wrote that “aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country. ” Id. at 271. The Court’s statement in Verdugo was an elaboration of its earlier language in United States v. Eisentrager, 339 U.S. 763 (1950), that an alien “is accorded a generous and ascending scale of rights as he increases his identity with our society. ” Verdugo, 494 U.S. at 269 (quoting Eisentrager, 339 U.S. at 770) (internal quotations omitted). The Court wrote in Boumediene that the right of an alien outside the United States to assert constitutional claims is based on “objective factors and practical concerns ” rather than “formalism.” 553 U.S. at 764. In determining the constitutional rights of aliens outside the United States, the Court applies a “functional approach” rather than a bright-line rule. Id.

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A comparison of Ibrahim’s case with trager, and Boumediene is instructive.

1313 Verdugo, Eisen-

In Verdugo, plaintiff had been arrested in Mexico and brought against his will to the Mexico-United States border, where he was turned over to United States authorities and imprisoned in the United States while awaiting trial on narcotics smuggling charges. The Court held that the plaintiff had “no previous significant voluntary connection with the United States” and therefore had no right to assert a Fourth Amendment challenge searches and seizures of his property by United States agents in Mexico. Verdugo, 494 U.S. at 271 (emphasis added).

Relying on Verdugo, the government insists that Ibrahim left the United States “voluntarily” and that she thereby forfeited any right to assert constitutional claims she might have had if she had remained in the United States. The government mistakes the nature of the Verdugo inquiry. Under Verdugo, the inquiry is whether the alien has voluntarily established a connection with the United States, not whether the alien has voluntarily left the United States. The circumstances of an alien’s departure may cast some light on whether the alien has established, and wishes to maintain, a voluntarily established connection with the United States. But the mere fact that an alien’s departure is voluntary tells us very little. In Ibrahim’s case, she left the United States to attend a Stanford-sponsored conference to present her academic research, performed in connection with her Ph.D. studies at Stanford, and she expected to return to Stanford after the conference to complete her studies. Ibrahim thus did not intend to sever her established connection to the United States by her voluntary departure, but rather to develop that connection further.

In Eisentrager, the plaintiffs were German citizens who had been arrested in China, convicted of violating the laws of war after adversary trials before a U.S. military tribunal in China, and sent to a prison in Germany to serve their sen-

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tences. The Supreme Court held that they did not have a right to seek a writ of habeas corpus under our Constitution. The Court summarized:

[To agree with plaintiffs that they are entitled to seek habeas] we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.

339 U.S. at 777.

Ibrahim’s case is unlike that of the plaintiffs in Eisentrager. She has not been convicted of, or even charged with, any violation of law. She is a citizen of a country with which we have never been at war. She contends that the placement of her name on the government’s terrorist watchlists is a mistake. Her contention is not implausible, given the frequent mistakes the government has made in placing names on these lists. She has established a substantial voluntary connection with the United States through her Ph. D. studies at a distinguished American university, and she wishes to maintain that connection.

[9] In Boumediene, the plaintiffs were aliens who had been designated as enemy combatants and who were detained at the United States Naval Station in Guantanamo. Plaintiffs had not been tried or convicted of any crime. They sought federal habeas corpus. The government argued that because plaintiffs were aliens who had committed acts outside the United States and were being detained outside the United States, they were not entitled to seek habeas relief. The Court rejected the gov-

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ernment’s proposed bright-line rule, calling it a

“formal,

sovereignty-based test.” 553 U.S. at 764. The Court wrote that

while the United States does not have de jure sovereignty

over the Naval Station at Guantanamo Bay, it “maintains de

facto sovereignty.” Id. at 755. Applying a “functional

approach,” id. at 764, the Court held that the plaintiffs in

Boumediene, unlike the plaintiffs in Eisentrager, had a right

to seek a writ of habeas corpus.

Ibrahim shares an important similarity with the plaintiffs in Boumediene. The Boumediene plaintiffs and Ibrahim both sought (or seek) the right to assert constitutional claims in a civilian court in order to correct what they contend are mistakes. In Boumediene, plaintiffs sought the right to try to establish they were not, in fact, enemy combatants. Ibrahim seeks the right to try to establish that she does not, in fact, deserve to be placed on the government’s watchlists.

[10] The government in Boumediene proposed a brightline “formal sovereignty-based test ” under which the absence of de jure jurisdiction over Guantanamo would have meant that plaintiffs had no right to seek habeas corpus under the Constitution. The Court disagreed, adopting instead a “functional approach” under which the absence of de jure jurisdiction was not determinative. Id. at 764. The government proposes a similar bright-line “formal sovereignty-based test” in Ibrahim’s case. Under the government’s proposed test in this case, any alien, no matter how great her voluntary connection with the United States, immediately loses all constitutional rights as soon as she voluntarily leaves the country, regardless of the purpose of her trip, and regardless of the length of her intended stay abroad. T he government’s proposed test is not the law. The law that we are bound to follow is, instead, the “functional approach” of Boumediene and the “significant voluntary connection ” test of Verdugo.

[11] Under Boumediene and Verdugo, we hold that Ibrahim has “significant voluntary connection ” with the United

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States. She voluntarily established a connection to the United States during her four years at Stanford University while she pursued her Ph.D. She voluntarily departed from the United States to present the results of her research at a Stanfordsponsored conference. The purpose of her trip was to further, not to sever, her connection to the United States, and she intended her stay abroad to be brief.

[12] We do not hold that tourists, business visitors, and all student visa holders have the same connection to the United States as Ibrahim. Nor do we hold that Congress is without authority to exclude undesirable aliens from the United States and to prescribe terms and conditions for entry and re-entry of aliens. See, e.g. , Hampton , 426 U.S. at 101 n.21; Galvan v. Press, 347 U.S. 522, 530-31 (1954); Shaughnessy v. United States ex rel. Mezei , 345 U.S. 206, 210-11 (1953). We hold only that Ibrahim has established “significant voluntary connection” with the United States such that she has the right to assert claims under the First and Fifth Amendments. Like the Court in Boumediene, we express no opinion on the validity of the underlying constitutional claims. Boumediene, 553 U.S. at 733.

D. Discovery Rulings

1. Discovery Order

Ibrahim challenges a discovery order entered by the district court. After remand from this court but before the federal defendants were dismissed, Ibrahim sought through discovery: (1) FBI phone logs; (2) TSA employee logs from the San Francisco airport; (3) TSA employee logs from the Transportation Security Operations Center; (4) the No-Fly List and other documents identifying Ibrahim as a candidate for special screening; (5) documents considered when placing Ibrahim’s name on the No-Fly List; (6) documents considered when placing Ibrahim’s name in the TSDB; (7) documents discussing her detention at SFO; (8) documents instructing law

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enforcement to arrest or detain Ibrahim; (9) documents discussing instructions about the incident exchanged between federal and local defendants; (10) documents discussing instructions about her between federal and local defendants; and (11) video recordings of certain conversations. The district court did not rule on these requests before dismissing the federal defendants.

After the federal defendants were dismissed, Ibrahim renewed her discovery request on the ground that these documents were relevant to her still-pending claims for damages against the city and private defendants. The district court ordered the federal defendants to produce documents numbered (1) through (3) and (7) through (11), above, because the information contained in these documents was relevant to Ibrahim’s still-pending claims.

However, the district court denied Ibrahim’s request for documents numbered (4) through (6), on the ground that the federal defendants had been dismissed and that the information contained in these documents was relevant, if at all, only to the claims against the now-dismissed federal defendants. The court also denied Ibrahim’s request for responses to interrogatories directed to the federal defendants, on the ground that interrogatories can be directed only to parties. Fed. R. Civ. P. 33.

[13] We vacate the district court’s denial of discovery of these three categories of documents, and its denial of the request for interrogatories, in light of our holding that Ibrahim has the right to assert claims against the federal defendants under the First and Fifth Amendments. We leave it to the district court to determine whether, in light of our holding, all or part of Ibrahim’s discovery requests should be granted.

2. Disclosure of Non-testifying Experts.

Ibrahim also appeals the denial of her request to share Sensitive Security Information with her non-testifying experts.

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Sensitive Security Information is “information obtained or developed in the conduct of security activities . . . the disclosure of which TSA has determined would . . . [b]e detrimental to the security of transportation. ” 49 C.F.R. § 1520.5(a)(3). Such information is shared only with “covered persons” who have a “need to know” the information “to carry out transportation security activities. ” Id. at 1520.7(j), 1520.11(a)(1). Under § 525(d) of the Department of Homeland Security Appropriations Act of 2007, Pub. L. No. 109-295, 120 Stat. 1355, 1382 (Oct. 4, 2006), Congress has authorized the disclosure of “Sensitive Security Information ” during discovery to civil litigants who show “substantial need” for the information, provided that the district court

enters an order that protects the [Sensitive Security Information] from unauthorized or unnecessary disclosure and specifies the terms and conditions of access, unless upon completion of a . . . terrorist assessment like that done for aviation workers on the persons seeking access to [Sensitive Security Information] . . . the Transportation Security Administration or DHS demonstrates that such access to the information for the proceeding presents a risk of harm to the nation.

[14] Ibrahim argues that the identity of non-testifying experts is not discoverable, and that the identity of her experts will be revealed if they are required to submit to a TSA background check. Rule 26(b)(4)(D) provides, “Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. ” Ibrahim’s reliance on Rule 26 is misplaced for three reasons. First, Rule 26 shields only against disclosure through interrogatories and depositions; it does not shield against disclosure when information is required pursuant to a background check mandated by statute.

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Second, Ibrahim has not shown how a background check will reveal “facts known or opinions held ” by her experts. Finally, the rule does not prevent disclosure of the identity of a nontestifying expert, but only “facts known or opinions held ” by such an expert. See also Fed. R. Civ. P. 26(b)(3)(B) (preventing disclosure of “mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation ”). The district court correctly held:

It is commonplace for experts and consultants on both sides of any ordinary civil action to be vetted so that trade secrets and other sensitive information will not fall into the hands of someone with an adverse position to the owner of the sensitive information (other than, of course, adverse parties to the litigation itself). The risk is simply too great that someone in such an adverse position will be tempted to misuse sensitive information for a purpose other than the litigation. For example, a trade secret might be misappropriated by a consultant or expert and written into a pending patent application. This risk is all the greater when dealing with [Sensitive Security Information] and national security. Indeed, it is hard to imagine any legitimate reason for suppressing the identity of experts or consultants and exempting them from the security screening process, given that our country has a legitimate need to know that those experts and consultants can be trusted with the [Sensitive Security Information] in this case.

(emphasis in original).

Conclusion

We hold that Ibrahim has significant voluntary connection to the United States and she may therefore assert claims against the federal defendants for prospective relief under the

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First and Fifth Amendments. We vacate in part and affirm in part the district court’s discovery rulings.

We REVERSE in part, AFFIRM in part, and VACATE in part. We REMAND for further proceedings consistent with this opinion. Costs to Appellant.

DUFFY, District Judge:
I dissent.
The facts that are pled and developed by the Petition and submission of the government show that the Petitioner, Rahinah Ibrahim, was in the United States from 2001 to 2005 on a student visa to earn her doctorate from Stanford University. Prior to the time she left her native Malaysia for Stanford, she had been an assistant professor at the University Putra Malaysia in Serdang, Malaysia. Near the end of her doctoral studies, Petitioner was invited to participate in a symposium at that same university to present her research. She voluntarily purchased her ticket to Malaysia and made the other necessary arrangements to attend the symposium. On January 2, 2005, Petitioner arrived at the airport in San Francisco as per the ticket and was advised by a representative of United Airlines that she was on a “No Fly ” list. Instead of issuing her a boarding pass, the representative called the San Francisco police. Petitioner was arrested and detained for two hours until F.B.I. agents arrived and directed that she be released.1 The Petitioner was told she was no longer on the “No Fly” list at that time. The very next day, Petitioner went to the airport where she was again told her name was on the
1Petitioner sued the San Francisco Airport, City and County of San Francisco, San Francisco Police Department and certain San Francisco Police Department officers for false arrest as part of this action. This claim was settled when she received the sum of $225,000.

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“No Fly ” list. Petitioner nevertheless boarded her plane, and although she claims she was subjected to enhanced scrutiny and searches at every stopover on the trip, she successfully arrived in Malaysia.

Petitioner attended the symposium and stayed in Malaysia for an additional two months until March 10, 2005, when she attempted to board a return flight to the United States. She was prevented from doing so and was told by a ticketing agent in Malaysia that she would have to wait for clearance from the U.S. embassy before being permitted to board. She was also told by another ticketing agent that a note next to her name instructed airport personnel to alert the police and have her arrested.

Petitioner has been unable to return to the United States since leaving in 2005. She has remained in contact with her friends at Stanford, using electronic devices and meeting with them in person outside of the United States. She claims, however, that such means of contact are inadequate and lists them among her injuries in bringing the present action. Petitioner also claims her alleged placement on the “No Fly” list constitutes injury because she is prevented from flying U.S. airline carriers to other foreign countries and from otherwise flying over U.S. airspace.

On March 24, 2005, Petitioner submitted a request to the Transportation Security Administration’s (“TSA”) “Passenger Identity Verification ” program to clear her name from the “No Fly” list. Petitioner received a written response approximately one year later, advising her that any records warranting corrections had been modified. This response did not indicate whether Petitioner’s name appeared on the “No Fly” list or other terrorist watchlists.

On April 14, 2005, an American consul in Malaysia sent Petitioner a letter. She learned that the State Department had

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revoked her student visa on January 31, 2005. 2 The letter referenced Section 212(a)(3)(B) of the Immigration and Nationality Act ( “INA”) as grounds for revocation. 3 This INA provision was again referenced in the denial of her later application for a visitor visa. Petitioner claims, however, that the denials of her original student visa and her visitor visa application are solely because she is on the “No Fly” list. She instituted this Petition to remove her name from the “No Fly” list and other terrorist watchlists with the announced expectation that the State Department would then issue her a visitor visa. It is clear that one of the principal reasons Petitioner plans to visit the United States is to advance her academic career.

The only evidence in the record concerning the relationship between visa decisions and the “No Fly” list is the flat statement by the State Department that the revocation of Petitioner’s student visa did not depend on Petitioner’s being on the “No Fly ” list: “[v]isa decisions are independent from and made without reference to any ‘No Fly’ list. ”

As the majority recognizes, courts cannot interfere with the

granting (or revocation) of a visa. (

See Bustamante v.

Mukasey, 531 F.3d 1059, 1060 (9th Cir. 2008))); see also 8

U.S.C. §§ 1104(a); 1201(I). The majority, however, would

grant Petitioner a hearing on the question of her placement on

2Although according to Petitioner’s brief, her student visa was valid until January 2007, it was due to expire at the end of her studies, which occurred some three months later in June 2005.
3The INA provides, in pertinent part, that any alien
who: (I) has engaged in a terrorist activity; (ii) a consular officer, the Attorney General, or the Secretary of Homeland Security knows, or has reasonable ground to believe, is engaged in or is likely to engage after entry in any terrorist activity; (iii) has, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity
is “ineligible to receive visas and ineligible to be admitted to the United States . . . . ” 8 U.S.C. § 1182(a)(3)(B).

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the “No Fly ” list, among other government watchlists. They claim that the Petitioner has a constitutional right to such a hearing because of her “substantial voluntary connections ” to the United States. The government has argued that an alien located outside the jurisdiction of the United States cannot seek a mandatory injunction for alleged “as applied” unconstitutionality. I do not believe it necessary to adopt this bright line test that the government suggests. Instead, let us turn to the cases cited by the majority as precedent for their decision.

The majority relies on a number of cases to show that certain aliens located outside the United States can challenge the constitutionality of U.S. laws. One such case is Kwong Hai Chew v. Colding , 344 U.S. 590 (1953). In that case, the petitioner, of Chinese ancestry, entered the United States in the early 1940s during World War II. He served honorably in the United States Merchant Marine and married an American woman who had been born in this country. After the war, he continued in his career as a seaman. He received seaman’s papers from the United States Coast Guard, and in 1950 he obtained a job on the S.S. Sir John Franklin, an American flagship. The voyage took several months. At all times during this voyage, Kwong Hai Chew was serving as a seaman under American articles and thus was under de facto jurisdiction of the United States. If he had violated U.S. law, the United States could have prosecuted him. Kwong Hai Chew was also entitled to U.S. “maintenance and cure. ”4 Upon the ship’s return to San Francisco, Kwong Hai Chew was denied entry, and the ship thereafter sailed to New York where Kwong Hai Chew was put on Ellis Island “for safe-keeping on behalf of

4“Maintenance and cure ” is a benefit given to American seamen under an ancient doctrine that the master of a ship cannot abandon a sick seaman in a foreign port but must see to the well-being of the seaman. Thus, the master must pay for the “cure” of the seaman’s injury or illness and to maintain the seaman until he can be returned to the home port. Rules for such expenditures are set in part by the flag of the vessel, in which the seaman served. 1B Matthew Bender, Benedict on Admiralty § 42 (7th ed. 2011).

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the master of the S.S. ‘Sir John Franklin.’ ” Id. at 595. The Supreme Court recognized that, while Kwong Hai Chew was on the high seas, he was at all times under the jurisdiction of the United States, as evidenced by the American flag on the S.S. Sir John Franklin.

Kwong Hai Chew did not attack the validity of the law that permitted the United States Attorney General to exclude certain aliens from entry into the United States. The Court viewed his position as if he were within the continental United States at all times in question and permitted the issuance of the writ of habeas corpus. Kwong Hai Chew merely proves the majority’s “uncontested proposition that if Ibrahim had remained in the United States, ” she would have been able to challenge the constitutionality of the government’s action in placing her on the terrorist watchlists. In the instant case, Petitioner resides in Malaysia and, therefore, does not enjoy the right of constitutional challenge.

Slightly more instructive on the issue of whether aliens located outside of the United States can bring constitutional claims is Boumediene v. Bush , 553 U.S. 723 (2008). There, the action was brought on behalf of certain aliens held captive at the U.S. naval base at Guant ánamo Bay, Cuba. Boumediene and his fellow petitioners found themselves under de facto U.S. jurisdiction in Guant ánamo Bay, where the United States exercised “absolute and indefinite control. ” Id. at 727. The Supreme Court rejected the same bright line test proposed by the government here and found that Boumediene and his fellow petitioners had the right to seek the writ of habeas corpus. The Supreme Court’s decision did not disregard the extraterritoriality of the claims being asserted, but focused instead on the fact that Boumediene and his fellow petitioners held at Guant ánamo Bay were in U.S. custody following capture in, and transfer from, various foreign lands. Here, the Petitioner, knowing that she could be forever banned from returning to this country, voluntarily left and

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returned to her native land, outside of U.S. jurisdiction. 5 No one can believe that she did not know exactly the consequences of the choice she made.

In Johnson v. Eisentrager, 339 U.S. 763 (1950), a group of German nationals sought the writ of habeas corpus after being arrested by the United States Army in China, convicted of violating the laws of war by a Military Commission sitting in China, and imprisoned in Germany. The Supreme Court held that such “enemy aliens, resident, captured and imprisoned abroad” did not have the right to seek the writ. Id. at 777. The majority concludes that because the Petitioner is not such a person, she may seek redress for her constitutional claims. The majority, however, overlooks the fact that, like the petitioners in Eisentrager, the Petitioner does not find herself under U.S. jurisdiction, whether de jure or de facto, as did the petitioners in Boumediene.

I must also note a crucial distinction between Boumediene and Eisentrager on the one hand and the present case on the other. The petitioners in the habeas cases cited above sought to challenge their detention at U.S. hands, whereas the Petitioner is not in our custody and therefore can have no grounds on which to seek similar relief.

5The majority attempts to analogize Boumediene and the present case by stating that petitioners in both cases simply sought to correct mistakes the United States had made concerning their status. The majority spends much space on the failures of the TSA, the Terrorist Screening Center and other government agencies in managing the “No Fly ” and other watchlists. To my mind, the statistics quoted show a real effort on the government’s part to reduce the mistakes and to remove as many people from the “No Fly” and other government watchlists as possible. This effort was expended over the entire time that Petitioner was making complaints and pursuing this lawsuit. It seems to me that, if possible, the government would prefer to drop someone from the watchlists rather than have a possible airing (through costly and public litigation) of the mistakes made. All of which, I believe, is evidence that Petitioner’s placement on the “No Fly” list was not a mistake.

CaseC:a1s0e-31:50867-c3v-00524/058-W/20H1A2 DoIDc:u8m0e6n0t831437 FDilekdtE0n2t/r0y9:/612-1PagPea3g3e:o3f 36of 36

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IBRAHIM v. DHS

The majority relies on the standard set forth by the

Supreme Court in United States v. Verdugo-Urquidez , 494

U.S. 259 (1990), to conclude that Petitioner may assert her

constitutional claims. Verdugo was a Mexican national who

was arrested in Mexico, brought to the United States against

his will and imprisoned pending the outcome of narcotics

smuggling charges against him. The Supreme Court held that

Verdugo had no right to assert claims that the search and sei-

zure of his property in Mexico constituted a Fourth Amend-

ment violation when he had

“no previous significant

voluntary connection with the United States . . . . ” Id. at 271.

The majority distinguishes Verdugo by finding that Petitioner “established a substantial voluntary connection with the United States through her studies at a distinguished American university.” I cannot come to the same conclusion. If we were to hold today that Petitioner may assert her constitutional claims because she formed a “substantial voluntary connection with the United States” while here on a student visa, then we would be hard pressed not to allow all alien students who studied in the United States and subsequently left the country to bring constitutional claims in our courts.

The majority seems to think that the holding of this case can be restricted to Petitioner and her constitutional claims alone. In doing so, however, it points to no reason why those similarly situated to the Petitioner could not avail themselves of the holding of this case. The majority believes it is enough that Petitioner (1) was in the country for a period of time, and (2) that upon departure she intended to come back to the country. If this were sufficient to vest constitutional rights in an alien located outside of the United States to bring actions in the United States against the government, there would be a significant number of aliens in the world just waiting to get into court. For example, a visitor to this country who overstays his visa, makes a livelihood in this country for a substantial amount of time, and chooses voluntary departure when caught as an illegal alien, could fit within the class of

CaseC:a1s0e-31:50867-c3v-00524/058-W/20H1A2 DoIDc:u8m0e6n0t831437 FDilekdtE0n2t/r0y9:/612-1PagPea3g4e:o3f 436of 36

IBRAHIM v. DHS

1327

people who would have such rights. He would have been in the country for a “substantial time ” and would have friends and contacts in this country—as would most illegal aliens. As such, he would most likely have the desire and intention to return to this country.

As this example shows, the majority holding is too broad, while the government’s bright line argument based on extraterritoriality is too narrow and hidebound for use in the modern world.

In the case at bar, however, there is no need to set forth a definitive test because the simple answer is that Petitioner has not shown a “substantial voluntary connection ” with the United States, which is the measurement the majority believes the precedent would require. The Petitioner does not suggest that she ever worked in or paid taxes to the United States or indeed did anything (except study at a university) to indicate that she ever made a conscious decision to live in this country or to accept any of the responsibilities of a permanent resident. She merely came to acquire the education available and thereby improve her position in her own native country. Obviously, the Petitioner is quite content in having advanced from assistant professor at the University Putra Malaysia prior to obtaining her doctorate to associate professor and Deputy Dean of that university now. At all times that she was in the United States, her main objective was to personally benefit from this country. Any contribution the Petitioner made to the United States was incidental to this objective. 6 That, to my mind, is totally insufficient to constitute a substantial voluntary connection.

Compare the instant case with Kwong Hai Chew who, as discussed above, had an American-born wife, had become a

6In fact, Petitioner’s own declaration shows she intended to contribute not to the United States, but to “the construction industry in Malaysia, specifically in the architecture field. ”

CaseC:a1s0e-31:50867-c3v-00524/058-W/20H1A2 DoIDc:u8m0e6n0t831437 FDilekdtE0n2t/r0y9:/612-1PagPea3g5e:o3f 536of 36

1328

IBRAHIM v. DHS

permanent resident and had already filed a petition for naturalization before he left the country.

In any event, the real complaint that Petitioner has is that she no longer has a visa to come and go as she pleases. We already have, in the record, a statement from the State Department establishing that Petitioner’s removal from the “No Fly” list will not affect its visa determinations as concern her and that she will not get the visa she desires. Neither this action, nor any other court action, can redress her complaint.

Section 1104(a) of Title 8 sets forth the powers and duties of the Secretary of State, specifically excluding the authority to review consular officers’ determinations “relating to the granting or refusal of visas. ” Section 1201(I) of Title 8 expressly precludes visa revocations from judicial review. Read together, courts have extended the application of Section 1104(a) to preclude administrative and judicial review of all factual determinations relating to visa applications. See, e.g., Bustamante v. Mukasey , 531 F.3d 1059, 1060 (9th Cir. 2008). Courts are therefore deprived of the power to order the State Department to issue a visa.

This is as it should be. These questions are clearly political and should not be resolved by the judicial branch of our government. Thus, the claimed injury of which Petitioner suffers is non-redressable. At a constitutional minimum, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61 (1992) (citing Simon v. Eastern Ky. Welfare Rights Organization , 426 U.S. 26, 41-42 (1976)). Petitioner seeks an injunction to remove her name from any government watchlist, including the “No-Fly” list, to enable her passage to the United States to attend conferences and further her professional relationships. Removal of her name, however, does not ensure lawful entry into the United States. Petitioner must first obtain a valid visa.

CaseC:a1s0e-31:50867-c3v-00524/058-W/20H1A2 DoIDc:u8m0e6n0t831437 FDilekdtE0n2t/r0y9:/612-1PagPea3g6e:o3f 636of 36

IBRAHIM v. DHS

1329

The majority cites to the District Court’s observation that “[w]hile obtaining a visa may stand as a potential obstacle to her entry into the United States, it does not completely foreclose redressability. Petitioner is not required to solve all roadblocks simultaneously and is entitled to tackle one roadblock at a time. ” This may ring true where remaining roadblocks do not preclude a likely redress. Here, however, the State Department based its denial of Petitioner’s visa application on grounds other than her “No-Fly” status. Petitioner’s inability to obtain a valid visa despite her removal from the “No Fly ” list or any other government watchlist constitutes more than a “potential obstacle ” to her entry—it renders her entry highly speculative at best.

In sum, I would affirm the District Court and hold that the alien Petitioner has no standing to bring this action since she has no substantial voluntary connection to this country. I would further hold that Petitioner’s alleged harm is ultimately non-redressable and thus, she is without standing to bring her claim in this or any other federal court.

 
 1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5 FOR THE NORTHERN DISTRICT OF CALIFORNIA
6

7

United States District Court For the Northern District of California

8 RAHINAH IBRAHIM,

9

Plaintiff,

No. C 06-00545 WHA

10

v.

11 DEPARTMENT OF HOMELAND 12 SECURITY, et al.,

13

Defendants. /

ORDER DENYING MOTION TO DISMISS AND MOTION TO STAY DISCOVERY

14

15

INTRODUCTION

16

For six years in this civil action, plaintiff has been trying to straighten out her status on

17 the no-fly list and/or related lists. After two appeals reversing the government’s position, this

18 order addresses yet another Rule 12 motion by the government.

19

STATEMENT

20

From 2001 to 2005, Rahinah Ibrahim was studying under a student visa at Stanford

21 University. In January of 2005, Ibrahim attempted to fly from San Francisco to Malaysia,

22 her country of origin, but was detained and held at the airport because her name was on the

23 government’s no-fly list. After being held for two hours, she was released. Ibrahim was told

24 by an unidentified person that her name was no longer on the no-fly list.

25

The next day, Ibrahim returned to the airport to catch a different flight. Despite what

26 she had been told the previous day, an unidentified person told Ibrahim that she was still on the

27 no-fly list. Inexplicably, however, Ibrahim was allowed to board her flight and fly to Malaysia.

28 She has never been permitted to return to the United States.

United States District Court For the Northern District of California

1

In March of 2005, Ibrahim submitted a request through the TSA’s “Passenger Identity

2 Verification” to clear her name. A year later, after Ibrahim had filed suit, the TSA sent her a

3 form letter that did not state whether her name had been removed from the no-fly list.

4

In April of 2005, an American consul in Malaysia sent Ibrahim a letter stating that the

5 Department of State had revoked her student visa one month after her departure due to “possible

6 ineligibility” under Section 212(a)(3)(B) of the Immigration and Nationality Act. This statute

7 allows for aliens to be refused entry to the United States based on actual or likely terrorist

8 activity. The letter further stated that her continued ineligibility for a visa would be determined

9 when she next applied for a visa (which visa she applied for after filing suit and which was

10 denied in 2009).

11

In January of 2006, Ibrahim filed suit against the DHS, TSA, the Terrorist Screening

12 Center, the FAA, the City and County of San Francisco, the San Francisco Police Department,

13 the San Francisco Airport, the County of San Mateo, United Air Lines, UAL Corporation, and

14 the individuals associated with these entities. She asserted Section 1983 claims, state law tort

15 claims, and several constitutional claims based on the inclusion of her name on government

16 terrorist watch lists.

17

An August 2006 order dismissed Ibrahim’s claims against the federal defendants based

18 on lack of subject-matter jurisdiction under a federal statute that vested jurisdiction in the courts

19 of appeals. In August of 2008, however, our court of appeals reversed and remanded, ruling that

20 district courts have jurisdiction over such challenges, including challenges to placement on the

21 no-fly list, at least as to certain federal defendants.

22

Following remand, Ibrahim filed a second amended complaint in April 2009 against the

23 remaining federal defendants and certain city defendants. She again asserted Section 1983

24 claims, state law tort claims, and constitutional claims, including claims based on First

25 Amendment freedom of association, Fifth Amendment due process, and equal protection.

26 She also asserted a claim under the Administrative Procedure Act, alleging that the federal

27 defendants’ actions were arbitrary, capricious, an abuse of discretion, and not in accordance

28 with the law. The relief she sought included an injunction removing her from the no-fly list.

2

United States District Court For the Northern District of California

1

The federal defendants moved to dismiss Ibrahim’s APA claim of lack of standing and

2 failure to state a claim. They contended that she had no Article III standing and that she had no

3 right to assert her First and Fifth Amendment claims because she is an alien who voluntarily left

4 the United States. A July 2009 order held that Ibrahim had Article III standing, but her

5 voluntary departure from the United States extinguished her capacity to sue for prospective APA

6 and constitutional relief. As for past violations, the order held that she could pursue her claims,

7 though certain claims were dismissed with leave to amend.

8

Ibrahim settled her claims against the non-federal defendants and then appealed the

9 dismissal of her APA and constitutional claims along with related adverse discovery rulings.

10 In February 2012, our court of appeals agreed that Ibrahim had Article III standing, reversed the

11 dismissal of her APA and constitutional claims, and vacated certain adverse discovery rulings.

12 669 F.3d 983.

13

Now, once again, the federal defendants move to dismiss. They again assert that Ibrahim

14 lacks standing, and that even if she does have standing, her claims must be dismissed as a matter

15 of law. In parallel, defendants move for a stay of discovery pending resolution of their motion

16 to dismiss.

17

Defendants have taken an unusual step regarding their motion to dismiss.

18 Defendants seek to rely on law enforcement declarations to be submitted for in camera, ex parte

19 review. To address this circumstance, an order requested that the parties submit briefing as to

20 whether and to what extent it would be appropriate for the undersigned judge to receive and to

21 rely on these materials.

22

ANALYSIS

23

1.

SECRET AND EX PARTE COMMUNICATIONS.

24

The analysis begins by addressing the request by the government to dismiss this case

25 based on secret evidence the government wishes to show the judge ex parte and extra record.

26 It came about as follows:

27

After the government’s second reversal by the court of appeals in this six-year old action,

28 the government again moved to dismiss under Rule 12, again moving on lack-of-standing

3

United States District Court For the Northern District of California

1 grounds, even though the standing issue had gone the other way on appeal. While the briefing

2 was in progress, a telephone call came into the court staff saying that a federal agent was on his

3 way from Washington to San Francisco to show the judge confidential records about this case,

4 all to be relied upon by the government in support of its motion to dismiss (but not to be

5 disclosed to the other side). The officer would take back the records after the judge reviewed

6 them and would leave no record behind of what he had shown the judge. Upon hearing of this,

7 the judge suspended this proposed process and called for the briefing that is the subject of this

8 order, namely the extent to which the government may rely on secret ex parte communication

9 in connection with its motion to move to dismiss. Pending resolution of that issue, the Court

10 has not reviewed any such ex parte communications (and believes they are not even in the

11 courthouse). Nor has it read any of the redacted passages in the briefing (and believes

12 unredacted versions are not even in the courthouse).

13

Our court of appeals has not spoken directly to our circumstance so this order will review

14 the three most pertinent decisions. In essence, those decisions strongly favor maintenance of

15 our traditional system of fair play in which both sides have notice of the arguments and evidence

16 being used against them. Nonetheless, for good cause, the judge may receive ex parte secret

17 communications for deciding ancillary matters, such as discovery privileges, but only in the

18 rarest of circumstances should the judge do so to resolve or to end a case. It is a matter of

19 discretion for the district judge. Now follows an analysis of the three appellate decisions.

20

In a 1991 appellate decision that our court of appeals was “careful to limit” to the

21 “precise facts of this case,” the district judge had reviewed ex parte and in camera an FBI

22 declaration stating that an FBI agent had been acting within the course and scope of his

23 employment for the United States and then, based thereon, dismissed a civil suit brought

24 by a criminal-investigation target against the agent. This decision is the government’s best

25 authority. The plaintiff there challenged the ex parte/in camera procedure. The court of appeals

26 was clearly troubled by it, stating:

27

While in our judicial system adversary proceedings are the norm

and ex parte proceedings the exception, this court has generally

28

recognized the capacity of a district judge to “fashion an guide the

procedures to be followed in cases before him.” United States v.

4

United States District Court For the Northern District of California

1

Thompson, 827 F.2d 1254, 1257 (9th Cir. 1987) (finding, in a

criminal context, that district court erred in considering

2

government’s reasons for utilization fo peremptory challenges

ex parte). “[District judges are able to consider matters that may

3

be unique to particular fact situations and tailor procedures to

serve the ends of justice . . . .” Id. at 1258. We find that the

4

procedure used by the court in the instant case was proper, it

adequately balanced the rights of the Government and Meridian.

5

The Government’s interest in having FBI documents, which relate

to an ongoing investigation, remain confidential was clearly

6

satisfied by the court’s action; and although Meridian did not

have the opportunity to conduct discovery and cross-examine the

7

Government’s witnesses, its interests as a litigant are satisfied

by the ex parte/in camera decision of an impartial district judge.

8

However, because procedures such as these should be used only in

unique situations, we are careful to limit our holding to the precise

9

facts of this case.

10 Meridian Intern. Logistics, Inc. v. United States, 939 F.2d 740, 745 (9th Cir. 1991).

11 Although there was no reversal per se on the procedural ground, the court of appeals reversed

12 on the merits, holding that the generalized ex parte declarations were insufficient to establish

13 that all agent acts had been within the scope of FBI authority.

14

Meridian is distinguishable for several reasons. First, the dismissal by the district judge

15 was pursuant to a statutory (and public) certification by the Attorney General that the FBI

16 actions involved had all been within the scope and course of FBI employment. Under 28 U.S.C.

17 2679(d)(2), this certification then mandated substitution of the United States in place of the

18 individual defendant. In turn, the only possible claim against the United States would have been

19 under the Federal Torts Claims Act, and it was manifest that no claim for slander, libel and

20 interference with contract would lie against the United States under that Act. All of the

21 foregoing was based on publicly filed certifications and argument. The only role of the

22 ex parte/in camera declarations was to supply proof to back up the certification as to scope.

23 So, the first point of distinction is the limited role that the declarations played in Meridian.

24

Second, despite its limited role, our court of appeals nonetheless reversed on the merits

25 and held that the declarations were too inadequate and too conclusory to support the scope

26 certification. It remanded for reconsideration and instructed the district judge to “entertain

27 further documentary proof by the parties.” Id. at 745. This meant that, on remand, both sides

28 would have an opportunity to submit evidence on the scope issue, not just the government.

5

United States District Court For the Northern District of California

1

Third, our court of appeals described the substantive declarations in its public order,

2 stating that they only generally asserted that the agent’s investigation had been proper without

3 addressing the specific factual allegation of Meridian’s complaint. Put differently, under our

4 system of law, the court felt obliged to explain the basis for its ruling, even if that meant

5 revelation of some of the information in the secret submission.

6

Fourth, unlike here, the government there at least had the declarations filed in the court

7 record, even if under seal, so that there would be a precise judicial record for appeal. Here, by

8 contrast, the government wishes to whisk away all of its secret evidence and leave no trace

9 behind in our district court records for appellate review. Our court of appeals would have to

10 depend upon an agency bureaucratic process to recreate the same material shown to the district

11 judge.

12

In short, Meridian provides guidance and a word of caution. Our court of appeals limited

13 its holding there “to the precise facts” of that case. Our facts are much different. Here, we have

14 no public statutory certification. We would have no district court record for appellate review.

15 We would have no proceeding where both sides were given a chance to submit documentary

16 proof on the issue, for here no one has a clue what the government’s secret evidence purports to

17 address.

18

In Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir 2006), our court of appeals itself ordered

19 the government to file under seal and ex parte materials sufficient to show that a TSA Security

20 Directive was a “final order.” This was done on appeal in a suit by someone who refused to give

21 his identification at the airport security check-in and sued to challenge the authority of the TSA

22 to condition the right to travel on showing proper identification. If the TSA Security Directive

23 was a “final order,” then the district court lacked subject-matter jurisdiction and only the court of

24 appeals could hear a petition for review. After reviewing the Security Directive in camera and

25 ex parte, our court of appeals described the directive sufficiently in its ruling to demonstrate

26 that it was indeed a “final order” and then transferred the matter to itself under its own original

27 review jurisdiction. Nothing in this ex parte procedure was used to make a ruling on the merits

28 and, indeed, our court of appeals went on to reach the merits in the next passage in the opinion.

6

United States District Court For the Northern District of California

1 By contrast, here the government seeks to use ex parte communications to defeat plaintiff’s case

2 altogether.

3

Finally, let’s turn to a decision of our appellate court most on point. Although Congress

4 later enacted a provision to strip federal courts of subject-matter jurisdiction to review certain

5 immigration proceedings, our court of appeals held — in an action commenced before the

6 jurisdiction-stripping enactment — that due process was violated when the government uses

7 secret, classified information to deny resident illegal aliens the privilege of legalization, that is,

8 temporary or permanent resident status. American-Arab Anti-Discrimination Committee v.

9 Reno, 70 F.3d 104, 1066–71 (9th Cir. 1995), vacated on other grounds, 525 U.S. 471 (1999).

10 This part of the decision by our court of appeals remains good law. Given that in our very case,

11 our court of appeals has now held that Ibrahim, even though voluntarily outside our country, is

12 entitled to assert claims to the same extent as an alien within our borders, it is hard to avoid the

13 Reno principle in the instant civil action.

14

To be sure, there are circumstances where a district judge must and should examine

15 ex parte materials in camera. When claims of privilege are made in discovery matters to shield

16 material from revelation, we do so to rule on the privilege. But there no one is yet trying to end

17 or to win a case on the merits in secret — rather, the issue is whether the other side has a right to

18 obtain the allegedly privileged evidence. In contrast, where the holder affirmatively seeks to use

19 the evidence to win or to end the case, then, of course, any privilege must be deemed waived

20 and both sides then have access to it, at least under an appropriate protective order. Here the

21 government seeks to affirmatively use allegedly privileged information to dispose of the case

22 entirely without ever revealing to the other side what its secret evidence might be.

23

Similarly, in the Rovario context in criminal cases, we are sometimes called on to hold

24 an in camera hearing to examine a confidential informant under oath to determine the extent to

25 which the informant has sufficient evidence helpful to the defense so as to overcome the Rovario

26 privilege and require disclosure to the defense of the identity of the witness. United States v.

27 Spices, 3 F.3d 1234, 1238 (9th Cir. 1993); Rovario v. United States, 353 U.S. 53, 59 (1957).

28 Again, however, in that context, the government is not trying to use secret information to

7

United States District Court For the Northern District of California

1 convict. It does not wish to use the evidence at all. It is the other side that wants to have access

2 to the evidence for potential use in court. And, it might be added, when this is done, the

3 proceeding is reported and the transcript is made part of the record, albeit under seal, for the

4 review by the court of appeals. Before the in camera review, moreover, it is the practice of at

5 least this district judge to ask defense counsel to submit a list of questions to be covered by the

6 judge during the in camera proceeding.

7

Similarly, a district judge sometimes reviews potential Brady material in camera

8 and ex parte to rule on whether it must be turned over. Again, in those circumstances, the

9 government does not seek to affirmatively rely on the material. Rather, the question is whether

10 to disclose it for potential use by the other side. These are only examples. There are other

11 ex parte circumstances known to the courts but the main point is now evident.

12

In the exercise of its discretion, here is how the Court concludes such issues should be

13 determined. Where the government seeks to end or win a case entirely based on secret evidence

14 via an ex parte communication, it should first submit a precis available to both sides (i) laying

15 out the general purport of the argument and evidence such that the other side will have an

16 opportunity to respond to the general tenor of the proposed submission and (ii) explaining

17 why more detail should not be made available to the other side. Then both sides may address

18 the fairness and need for the ex parte procedure and, if it is to be done at all, the parameters for

19 it. The more case dispositive the proposed submission, the more justification should be shown.

20 In sum, only in the rarest of circumstances should a district judge, in his or her discretion,

21 receive ex parte argument and evidence in secret from only one side aimed at winning or ending

22 a case over the objection of the other side. Here, the government has not justified its sweeping

23 proposal. It has gone so far as even to redact from its table of authorities some of the reported

24 caselaw on which it relies! This is too hard to swallow.

25

This order holds that the government has not justified and may not affirmatively seek to

26 dismiss this civil action based upon proposed secret ex parte communications with the district

27 judge. If the government seeks to make affirmative use of evidence to end the case, then it must

28 disclose that information — under an appropriate protective order, of course, but nonetheless

8

United States District Court For the Northern District of California

1 disclose it. If it does not wish to make such affirmative use, then it may withhold it subject only

2 to the possibility that plaintiff’s counsel may eventually seek discovery of it, in which case it

3 may or may not be kept under wraps depending on the strength of the competing discovery

4 consideration at that time and the strength of the privilege asserted.

5

Therefore, the Court will ignore all of the redacted material in the government briefs

6 on this set of motions and will rule on the same paperwork made available to both sides, which

7 is totally redacted as to the standing issue. The government’s latest motion based on lack of

8 standing, being a complete mystery, is DENIED.

9

2.

EXTRA-PLEADING MATERIAL.

10

As to issues other than standing, the government relies on fact declarations that are on

11 the public record. The declaration of Sean Cooper in the Department of State is one example

12 (Dkt. 373–74). This matter is largely outside the pleadings and would be proper only under

13 Rule 56. The problem is that we are still at the Rule 12 stage. Plaintiff is entitled to try to prove

14 her own version of how the agencies operate and is not obliged to accept as gospel the version

15 declared by Mr. Cooper and the other declarants. Perhaps the government’s version will prevail

16 at trial but we are at the pleading stage and those declarations are now inadmissible. Perhaps the

17 Ninth Circuit panel got it wrong, as government counsel now contends, in asserting that

18 “removal of her name from government watch lists would make a grant of a visa more likely.”

19 669 F.3d at 993. Still, such factual chapters of this story will need to be developed in discovery.

20 At the Rule 12 stage, we cannot simply take the government’s declarations as showstoppers.

21 The government will have its chance at trial to prove that the panel erred in its conclusion.

22

3.

RULE 12(b)(6) MOTION AND THE

CONSTITUTIONAL CLAIMS FOR RELIEF.

23

A prior order by the district judge dismissed Ibrahim’s claim on the ground she was

24

an alien who had voluntarily left the United States and thus left her constitutional rights at the

25

water’s edge. Over a dissent, the court of appeals reversed and held that, by reason of her

26

Stanford connection, Ibrahim had a substantial voluntary connection to our nation and thus had

27

as much standing to assert constitutional claims as if she had remained here all along, which is to

28

say, the same right to assert such rights effectively as would a citizen or a lawfully present alien.

9

United States District Court For the Northern District of California

1 The government acquiesced and did not seek review in the Supreme Court. Thus, this order

2 must take it as a given that Ibrahim has the same standing as would a citizen or as would a

3 lawfully present alien.

4

Ibrahim has sued under the Administrative Procedure Act, 5 U.S.C. 702, 706, which

5 our court of appeals construed as a waiver of sovereign immunity, thereby allowing her claims

6 under the First and Fifth Amendments and authorizing remedies for those claims. 669 F.3d at

7 991 (col. 2). No argument is made that the APA claim should be dismissed.

8

The question, rather, is whether Ibrahim has pled agency action violative of the First

9 and/or Fifth Amendments. In this regard, the opinion of our court of appeals laid out severe

10 inaccuracies and shortcomings of the no-fly list and selectee list (see pages 988–90). The right

11 to travel here and abroad is an important constitutional right. To deny this right to a citizen or

12 to a lawfully present alien (as we must treat Ibrahim under our court of appeals opinion) based

13 on inaccurate information without an effective means of redress would unconstitutionally burden

14 the right to travel. Aptheker v. Secretary of State, 378 U.S. 500, 505 (1964); Zemel v. Rusk,

15 381 U.S. 14 (1965). While the Constitution does not ordinarily guarantee the right to travel by

16 any particular form of transportation, given that other forms of travel usually remain possible,

17 the fact remains that for international travel, air transport in these modern times is practically the

18 only form of transportation, travel by ship being prohibitively expensive or so it will be

19 presumed at the pleading stage. Decisions involving domestic air travel, such as the Gilmore

20 case, are not on point. 435 F.3d 1136–38.

21

Similarly, to deny a citizen or lawfully present alien (as we must treat Ibrahim) a right

22 to travel on account of her religion would violate the First Amendment. Reno, 70 F.3d at 1066;

23 see also Kleindienst v. Manedel, 408 U.S. 753, 769–70 (1972).

24

Without question, the government can bar anyone from boarding a plane who presents

25 a risk of terror. The government may not, however, bar a citizen or lawfully present alien from

26 boarding a plane based solely or mainly on the religion of the traveler or based solely or mainly

27 on grossly inaccurate information without affording an opportunity to challenge the basis for

28 the denial.

10

United States District Court For the Northern District of California

1

It is true that Ibrahim may not challenge the revocation of her visa in our district court.

2 She does not do so. Rather, she challenges the actions of other federal officials who put in play

3 the alleged misinformation that has led to the visa revocation, all as recognized by our court of

4 appeals in this very case.

5

We are at the pleading stage. It is enough to rule now that Ibrahim has stated at least

6 plausible claims for relief. That is, it cannot be said on the pleadings alone that, by the time

7 of a hearing on the merits, she will be entitled to no relief whatsoever under the Administrative

8 Procedure Act and the First and Fifth Amendments. Exactly what that relief might be would

9 depend on how the facts of the case eventually are proven (or not). It is also unnecessary to rule

10 on every item in the long list of possible violations of the Bill of Rights (the stigma-plus claim,

11 for example). It is best to draw the constitutional line after we know the actual facts rather than

12 to indulge in a long list of abstract opinions now.

13

4.

THE DEPARTMENT OF STATE.

14

Contrary to the government, the Department of State should not be dismissed at

15 this stage, for it is plausible that in due course its presence may be needed to accord relief.

16 For example, if the government is ordered to remove plaintiff from all versions of the no-fly list

17 (and its variants), then the presence of the agency may be necessary in order to provide all

18 necessary relief. Even if it turns out that she is not on the list anymore, she is nonetheless

19 entitled to maintain this action to root out the residual effects and echoes in the various agencies

20 resulting from the original erroneous listing, assuming she was listed and assuming it was

21 erroneous.

22

5.

DISCOVERY AND PROTECTIVE ORDER.

23

The Court rejects the government’s argument that Ibrahim’s counsel cannot be trusted to

24 handle sensitive information in this case. They are reputable lawyers in a reputable firm with no

25 history of infractions.

26

No classified information is involved in this case. This deserves repetition — NO

27 CLASSIFIED INFORMATION IS INVOLVED IN THIS CASE — even, the government acknowledges, in

28 the secret submission it sought to make. This case does involve SSI, so-called “sensitive

11

United States District Court For the Northern District of California

1 security information.” But years ago herein, pursuant to a 2006 statute, plaintiff’s counsel were

2 cleared by the agencies involved to receive and review SSI. The government’s persistent and

3 stubborn refusal to follow the statute and continued objection to counsel receiving SSI is

4 OVERRULED. All such SSI reasonably requested in discovery must be turned over to counsel for

5 their review — but not for access by plaintiff herself. This must be done pursuant to the

6 protective order already in place (Dkt. No. 312).

7

Finally, as for government records it deems to be privileged, it may not rely on them

8 without waiving any such privilege, as already ruled above. If plaintiff’s counsel seek such

9 material in discovery, the extent to which any privilege would shield them from discovery will

10 have to be litigated in the future upon proper motion. To the extent any are eventually turned

11 over, it would be pursuant to a protective order limiting access to counsel.

12

CONCLUSION

13

After six years and two unsuccessful appeals by the government, it is time to resolve

14 this case on the merits. The Court needs the cooperation and assistance of counsel to do so.

15 The motion to dismiss is DENIED. The motion to stay discovery is DENIED. A separate case

16 management order will set a timetable through trial.

17

18

IT IS SO ORDERED.

19

20 Dated: December 20, 2012. 21

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

22

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26

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12

 
 1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5 FOR THE NORTHERN DISTRICT OF CALIFORNIA
6

7

8 RAHINAH IBRAHIM,

9

Plaintiff,

10

v.

11

DEPARTMENT OF HOMELAND SECURITY, et al.,

12

Defendants.

13

/

No. C 06-00545 WHA
PUBLIC NOTICE AND SUMMARY OF FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER BENCH TRIAL

United States District Court For the Northern District of California

14

Public notice is hereby given that findings of fact and conclusions of law after a bench

15 trial have, by separate order, been issued. In the Court’s view, all of the separate order should be

16 made public, but it will remain under seal and the parties (and counsel) shall maintain its secrecy

17 until APRIL 15, 2014, so that our court of appeals can rule on the government’s desire to

18 maintain its secrecy. In the meanwhile, the parties shall try to stipulate to release of at least a

19 redacted version.

20

This much, however, can be and will be revealed publicly now by way of summary. All

21 of the government’s standing arguments are overruled. This Court earlier held that a

22 nonimmigrant alien voluntarily overseas had no standing to assert rights under our Constitution,

23 this holding being grounded in the view that federal constitutional litigation should not be

24 controlled by aliens overseas, especially as to counterterrorism defenses. Our court of appeals

25 reversed this holding and held that plaintiff, even though an alien living overseas, did have

26 standing. The government did not seek higher review of this ruling.

27

Turning to the merits, some but not all of the relief sought by plaintiff has been granted.

28 In order for the district court to grant relief on a claim that a plaintiff has been wrongly listed in a

government terrorist watchlist, that listing must first result in concrete, reviewable adverse

United States District Court For the Northern District of California

1 government action against the plaintiff, such as refusal of permission to board a plane. This

2 means that a judicial remedy must, by necessity, be a post-deprivation remedy. Once a plaintiff

3 shows concrete, reviewable adverse government action has occurred, and, as here, shows that the

4 action resulted from an error by the government, then the plaintiff is entitled by due process to a

5 post-deprivation remedy that requires the government to cleanse and/or correct its lists and

6 records of the mistaken information and to certify under oath that such correction(s) have been

7 made. The government’s administrative remedies fall short of such relief and do not supply

8 sufficient due process. In light of the confusion caused by the government’s mistake, such

9 cleansing-certification relief is ordered in this case. Also, the government is ordered to disclose

10 to plaintiff her current status on (or off) the no-fly list (without prejudice to future adjustments

11 based on new information). In this connection, the government concedes that plaintiff is not a

12 threat to our national security.

13

Although a district court cannot review the decision of a consular officer in denying a

14 visa to a nonimmigrant alien, when a nonimmigrant alien with standing to assert constitutional

15 rights has been denied a visa under Section 212(a)(3)(B) of the Immigration and Nationality Act,

16 8 U.S.C. 1182(a)(3)(B), the consular officer must specify which of the nine subsections was the

17 basis of the denial. Din v. Kerry, 718 F.3d 856, 862 (9th Cir. 2013). This relief is ordered here.

18

If, moreover, a consular officer advises a nonimmigrant alien that she is not eligible to

19 seek a discretionary waiver of inadmissibility when, under the law, she is eligible to at least

20 apply for a waiver, that erroneous advisement may be reviewed by a district court to the limited

21 extent of requiring the government to inform the nonimmigrant alien that she is eligible to at

22 least apply for a discretionary waiver. Such relief is ordered here. The subsequent grant or

23 denial of any such application, however, would not be reviewable.

24

Because of the importance of access by the public to the work of our courts, Kamakana v.

25 City and County of Honolulu, 447 F.3d 1172, 1178, 1180 (9th Cir. 2006); Foltz v. State Farm

26 Mutual Automobile Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003); San Jose Mercury News, Inc.

27 v. U.S. Dist. Ct.–Northern Dist., 187 F.3d 1096, 1102 (9th Cir. 1999), the government and

28 plaintiff are urged to promptly meet and confer and to agree to the maximum extent possible on

2

United States District Court For the Northern District of California

1 at least a redacted version to be released promptly to the public, reserving as to the balance

2 pending appeal and keeping in mind that the stay of public release will expire April 15. This

3 notice itself is merely a brief summary and does not constitute the order.

4

5

IT IS SO ORDERED.

6

7 Dated: January 14, 2014. 8

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

9

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12

13

14

15

16

17

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28

3

 
 Case3:06-cv-00545-WHA Document682 Filed01/14/14 Page1 of 38

United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 RAHINAH IBRAHIM,

No. C 06-00545 WHA

11

Plaintiff,

12

v.

13 DEPARTMENT OF HOMELAND 14 SECURITY, et al.,

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR RELIEF

15

Defendants. /

16

17

INTRODUCTION

18

In this terrorist-watchlist challenge, a nonimmigrant alien seeks relief after having been

19 barred airplane-boarding privileges and after having been denied a visa to return to the United

20 States. This order includes the findings of fact and conclusions of law following a five-day bench

21 trial. Some but not all of the relief sought is granted.

22

PROCEDURAL HISTORY

23

Plaintiff Dr. Rahinah Ibrahim is Muslim and a subject of Malaysia. Pursuant to a student

24 visa, she was admitted to the United States to study at Stanford University. On January 2, 2005,

25 plaintiff attempted to fly from the San Francisco airport to Hawaii but was handcuffed and led

26 away because she was on a federal no-fly list. After being held, she was eventually (the next day)

27 allowed to fly to Hawaii and then back to Los Angeles and then to Malaysia. While she was in

28 Malaysia, her student visa was revoked.

Case3:06-cv-00545-WHA Document682 Filed01/14/14 Page2 of 38

United States District Court For the Northern District of California

1

In January 2006, plaintiff commenced this civil action against multiple state and federal

2 agencies alleging Section 1983 claims, state law tort claims, and several constitutional claims

3 based on the inclusion of her name on government terrorist watchlists. The complaint sought

4 damages and equitable relief. An August 2006 order dismissed her claims against the federal

5 defendants based on lack of subject-matter jurisdiction because the no-fly list was an order of the

6 Transportation Security Administration under 49 U.S.C. 46110(a), which granted exclusive

7 subject-matter jurisdiction to the federal courts of appeals for review of orders of the TSA (Dkt.

8 No. 101). The order also dismissed plaintiff’s claims against a TSA employee, the airline, and the

9 federal agency defendants.

10

Our court of appeals affirmed in part, reversed in part, and remanded, holding that the

11 district court had original subject-matter jurisdiction over her claim for injunctive relief regarding

12 placement of her name on the no-fly list. The court of appeals agreed that the district court,

13 however, lacked subject-matter jurisdiction over her claim for injunctive relief regarding the

14 government’s policies and procedures implementing the no-fly list, that the federal agency and

15 airline actions were not state actions under Section 1983, and that the tort claims against the

16 federal officials in their official capacities and airline defendants were precluded. Our court of

17 appeals further held that specific jurisdiction was available for the claims against the TSA

18 employee, who was sued in his individual capacity. Although the government urged the appellate

19 court to find no standing, it expressly asked the district court to rule on that issue first. Ibrahim v.

20 Dep’t of Homeland Sec., 538 F.3d 1250, 1254–56 n.9 (9th Cir. 2008)(“Ibrahim I”).

21

On remand, plaintiff filed a second amended complaint. The operative second amended

22 complaint sought, among other things, limited relief relevant to plaintiff’s visa situation but

23 stopped short of attempting to force the government to issue her a visa. Cash settlements

24 eventually reduced the question to prospective relief only. A motion to dismiss for lack of

25 standing was made. In granting it, the district court drew a distinction between damages claims

26 for past injury while plaintiff had been in the United States (settled) versus prospective relief

27 sought after plaintiff had voluntarily left the United States (not settled). The July 2009 order held

28 that while plaintiff could seek damages for her past injury at the San Francisco airport (and had

2

Case3:06-cv-00545-WHA Document682 Filed01/14/14 Page3 of 38

United States District Court For the Northern District of California

1 successfully settled that part of the case), she had voluntarily left the United States and, as a

2 nonimmigrant alien abroad, no longer had standing to assert constitutional and statutory claims to

3 seek prospective relief. Although nonimmigrant aliens in the United States had standing to assert

4 constitutional and statutory claims, the order held that a nonimmigrant alien who had voluntarily

5 left the United States and was at large abroad had no standing to assert federal claims for

6 prospective relief in our federal courts. This holding was based on the ground that the

7 development of federal constitutional law should not be controlled by nonimmigrant aliens

8 overseas (Dkt. No. 197). A second appeal followed.

9

Our court of appeals, while affirming in part, reversed (over a dissent) as to prospective

10 standing by holding that even a nonimmigrant alien who had voluntarily left the United States

11 nonetheless had standing to litigate federal constitutional claims in district court in the United

12 States as long as the alien had a “substantial voluntary connection” to the United States. Ibrahim

13 v. Dep’t of Homeland Sec., 669 F.3d 983, 993–94 (9th Cir. 2012) (“Ibrahim II”). Plaintiff had

14 such a connection, our court of appeals held, because of her time at Stanford University, her

15 continuing collaboration with professors in the United States, her membership in several

16 professional organizations located in the United States, the invitations for her to return, and her

17 network of close friends in the United States. The government did not seek review by the United

18 States Supreme Court.

19

On the second remand, the government moved to dismiss again. This was denied. The

20 parties and the judge then became embroiled in discovery disputes involving the state secrets

21 privilege, the law enforcement privilege, and so-called “sensitive security information” (“SSI”),

22 49 U.S.C. 114(r) and 49 C.F.R. 1520.5. Defendants invoked these as bases for withholding

23 classified and otherwise allegedly sensitive government information from plaintiff and her

24 counsel. A pair of orders dated April 19, 2013, granted in part and denied in part plaintiff’s

25 motion to compel production (Dkt. Nos. 462, 464). Resolving these disputes required individual

26 review by the district judge of all of the documents sought by plaintiff. Most of this review was

27 conducted ex parte and in camera due to the privileged and classified nature of the documents.

28 The state secrets privilege was upheld as to nearly all of the classified documents in question.

3

Case3:06-cv-00545-WHA Document682 Filed01/14/14 Page4 of 38

United States District Court For the Northern District of California

1 The government’s assertion of other privileges regarding non-classified documents was overruled

2 as to the majority of the remaining documents. Plaintiff’s counsel became cleared to receive SSI,

3 but never tried to become cleared to read classified information. (Plaintiff herself was never

4 cleared to receive either SSI or classified information.) Subsequent rounds of contentious

5 discovery motions resulted in yet further ex parte and in camera review. Again, the

6 government’s assertions of the state secrets privilege were upheld, while its assertions of other

7 privileges were upheld in part and overruled in part (Dkt. Nos. 539, 548).

8

One recurring procedural issue concerned the effect of an assertion of state secrets. The

9 government announced on at least two occasions that if state secrets were invoked, then that

10 evidence could not be relied upon by either side. The evidence was simply out of the case, the

11 government said (Dkt. Nos. 417, 534). After making such representations on the record, an order

12 dated September 13, 2013, provided the government with another opportunity to clarify its

13 position (Dkt. No. 540). The order stated:

14

Plaintiff’s pending motion to compel production of documents (Dkt.

No. 515) raises questions regarding what evidence the government

15

intends to rely on at summary judgment and at trial. The Court is of

the view that the government may not rely in any way upon any

16

information it has refused to turn over to plaintiff in response to a

reasonable request. The government shall file a submission stating

17

whether it agrees with or objects to this principle by September 17

at Noon.

18

The government responded:

19

In response, Defendants affirm that they will not rely on any

20

information they have withheld on grounds of privilege from

Plaintiff in response to a discovery request in this case. Defendants

21

are mindful of the Court’s December 20, 2012 ruling (Dkt. [No.]

399) that the Government may not affirmatively seek to prevail in

22

this action based upon information that has been withheld on

grounds of privilege, and have acted in a manner consistent with

23

that ruling in both the assertion of privilege and summary judgment

briefing.

24

(Dkt. No. 541). As will be seen, however, the government reversed course at trial and sought to

25

prevail by having this action dismissed due to its inability to disclose state secrets, citing

26

precedent by our court of appeals.

27

28

4

Case3:06-cv-00545-WHA Document682 Filed01/14/14 Page5 of 38

United States District Court For the Northern District of California

1

As trial approached, a number of expert disclosure and discovery disputes were raised in

2 late September and October 2013. (There was also a brief stay in light of the appropriations

3 shutdown for the Department of Justice.) A pair of orders permitted plaintiff to revise an expert

4 report, allowed the government to take a second one-day deposition of the expert, and ordered

5 him to produce interview notes he considered in forming his opinions at least 24 hours prior to his

6 second deposition, once a proper subpoena was served (Dkt. Nos. 580, 585).

7

A hearing was held on the government’s motion for summary judgment on October 31,

8 2013. The vast majority of the hearing time, however, was consumed over whether or not the

9 trial should be public and whether certain information listed on plaintiff’s demonstratives was

10 subject to various privileges. The government argued that plaintiff had not yet sought and

11 received a final determination by the TSA regarding whether certain information was SSI

12 pursuant to Section 525(a) and (d) of the Homeland Security Appropriations Act, 2007, Pub. L.

13 No. 109-295, Section 525(a), (d), 120 Stat. 1355, 1382 (Oct. 4, 2006). The government further

14 argued that plaintiff’s counsel could only challenge a final order designating information as SSI

15 in the United States Court of Appeals for the District of Columbia. The same day, plaintiff

16 submitted a request to the TSA. The TSA subsequently identified certain information as SSI.

17 Possibly, an appeal from that order has been taken but the parties have not so indicated

18

The government’s motion for summary judgment was granted in limited part but mostly

19 denied (Dkt. No. 592). The “exchange of information” claim based on the First Amendment was

20 dismissed. Plaintiff’s claims based on procedural and substantive due process, equal protection,

21 and First Amendment rights of expressive association and retaliation proceeded to trial. Lack of

22 standing was raised yet again by the government and denied.

23

For the first time, and contrary to what it had represented before, the government further

24 argued that summary judgment in its favor was appropriate based on state secrets, citing to our

25 court of appeals’ decision in Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1080 (9th Cir.

26 2010) (en banc). That motion was denied to provide an opportunity to see how the evidence

27 would actually develop at trial and the extent to which at least portions of the case could be tried

28 and decided without regard to state secrets.

5

Case3:06-cv-00545-WHA Document682 Filed01/14/14 Page6 of 38

United States District Court For the Northern District of California

1

A final pre-trial conference was held on November 15, 2013, during which the parties’

2 motions in limine were heard. Plaintiff sought to exclude evidence submitted ex parte, to recuse

3 the undersigned judge based on his having reviewed relevant classified documents (in order to

4 rule on various discovery requests), and to exclude two of defendants’ may-call witnesses. The

5 government sought to exclude plaintiff’s experts, to exclude 22 of 42 “may call” witnesses on

6 plaintiff’s witness list, and to exclude certain trial exhibits. The final pre-trial order denied the

7 motions in limine, but the motion to exclude and prevent plaintiff from calling Attorney General

8 Eric Holder and James Clapper, Director of National Intelligence, was granted (Dkt. No. 616).

9

At the final pretrial conference, the government also made what amounted to a motion for

10 reconsideration of its motion for summary judgment on state secrets, previously denied. The

11 government argued that the action should be dismissed because the core of the case had been

12 excluded as state secrets. The motion was denied on several grounds. First, the government

13 failed to raise such an argument until weeks before trial. Second, it was unsettling for the

14 government to completely reverse its prior position that the effect of invoking the state secrets

15 doctrine was to exclude the evidence from the action. Third, even under Jeppesen, 614 F.3d at

16 1080, it could not be said with certainty that plaintiff would be unable to prove her case at trial or

17 defendants would be absolutely deprived of a meritorious and complete defense. The Court’s

18 plan was to allow both sides to present their unclassified evidence through the “normal” trial

19 procedure and then to allow the government to submit an ex parte and under seal submission to

20 try to explain how its state secrets might bear on the actual trial issues.

21

Five days before trial, the government filed another request seeking to exclude a plaintiff

22 expert because of his refusal to produce documents pursuant to a subpoena issued by the District

23 of Columbia and served at his second deposition (after two failed attempts to serve him). Plaintiff

24 produced non-privileged documents to the government and defendants cross-examined the expert

25 at trial. That dispute was accordingly resolved.

26

The bench trial then began on December 2, 2013. On the first day of trial, before opening

27 statements, plaintiff’s counsel reported that plaintiff’s daughter — a United States citizen born in

28 the United States and a witness disclosed on her witness list — was not permitted to board her

6

Case3:06-cv-00545-WHA Document682 Filed01/14/14 Page7 of 38

United States District Court For the Northern District of California

1 flight from Kuala Lumpur to attend trial, evidently because she too was on a no-fly list. Counsel

2 were asked to investigate. Immediately after trial, on December 6, an evidentiary hearing

3 regarding plaintiff’s daughter’s travel difficulties was held. Plaintiff and the government

4 submitted declarations. One live witness was examined. The snafu was the result of government

5 error, albeit corrected quickly, as will be outlined at the end of the findings of fact. Plaintiff’s

6 counsel was given the option to reopen the trial to permit the daughter to appear late and testify,

7 which counsel chose not to do. Instead, counsel asked for inclusion of the evidentiary hearing

8 and associated declarations in the trial record. The government objected to reopening the trial

9 record. The parties were permitted to file proposed contingent findings of fact and conclusions of

10 law based on the evidentiary hearing and associated declarations.

11

No classified information was used at trial (nor referenced in this order). Nonetheless, at

12 numerous times throughout the trial, there were privilege assertions and motions to close the

13 courtroom. These were based on a statutory privilege called “sensitive security information”

14 (“SSI”) and a common law privilege known as the “law enforcement privilege.” Due to these

15 assertions, at least ten times, the Court reluctantly asked the press and the public to leave the

16 courtroom.

17

After a one-week bench trial, lengthy findings of fact and conclusions of law, and

18 responses, were proposed by both sides. Rather than merely vet each and every finding and

19 conclusion proposed by the parties, this order has navigated its own course through the evidence

20 and arguments, although many of the proposals have found their way into this order. Any

21 proposal that has been expressly agreed to by the opposing side at least in part, however, shall be

22 deemed adopted (to the extent agreed upon), even if not expressly adopted herein. It is

23 unnecessary for this order to cite the record for all of the findings herein. Citations will only be

24 provided as to particulars that may assist the court of appeals. All declarative statements herein

25 are factual findings.

26

27

28

7

Case3:06-cv-00545-WHA Document682 Filed01/14/14 Page8 of 38

United States District Court For the Northern District of California

1

FINDINGS OF FACT

2

PLAINTIFF

3

1. Dr. Rahinah Ibrahim is a subject of Malaysia, a scholar, a wife, and a mother of

4 four children. She lawfully entered the United States in 1983 to study architecture at the

5 University of Washington in Seattle, where she graduated in 1987. While living in Seattle, she

6 married her husband, Mustafa Kamal Mohammed Zaini, and had her first daughter, Raihan Binti

7 Mustafa Kamal. Mr. Zaini is a subject of Malaysia, not a citizen of the United States. Her

8 daughter, Ms. Kamal, is a United States citizen, having been born in Seattle.

9

2. Dr. Ibrahim received her master of architecture in 1990 from the Southern

10 California Institute of Architecture in Santa Monica, California.

11

3. She returned to Malaysia, worked as an architect, and eventually became a lecturer

12 at the Universiti Putra Malaysia. She was the department’s first female lecturer. During this

13 time, she met Stanford Professor Boyd Paulson, who encouraged her to apply to Stanford

14 University.

15

4. In 2000, Dr. Ibrahim returned to the United States under an F-1 student visa to

16 work towards a Ph.D. in construction engineering and management at Stanford University. While

17 studying at Stanford, she was involved in the Islamic Society of Stanford University and

18 volunteered with the spiritual care services at Stanford Hospital. Dr. Ibrahim also attended

19 prayers at the MCA in Santa Clara, a Muslim place of worship. She eventually received a Ph.D

20 from Stanford University.

21

5. Government counsel has conceded at trial that Dr. Ibrahim is not a threat to our

22 national security. She does not pose (and has not posed) a threat of committing an act of

23 international or domestic terrorism with respect to an aircraft, a threat to airline passenger or civil

24 aviation security, or a threat of domestic terrorism. This the government admits and this order

25 finds.

26

6. On September 11, 2001, radical Islamic terrorists destroyed the World Trade

27 Center in New York City and part of the Pentagon alongside the Potomac and commandeered

28 United Airlines Flight 93, leading to its crash in Pennsylvania. More than 2,900 victims were

8

Case3:06-cv-00545-WHA Document682 Filed01/14/14 Page9 of 38

United States District Court For the Northern District of California

1 killed.

2

7. In November 2004, FBI Special Agent Kevin Michael Kelley, located in San Jose,

3 nominated Dr. Ibrahim, who was then at Stanford, to various federal watchlists using the NCIC

4 Violent Gang and Terrorist Organizations File Gang Member Entry Form (“VGTOF”) (TX 8).

5 VGTO, also known as Violent Gang and Terrorist Organization, was an office within the FBI’s

6 National Crime Information Center (“NCIC”). VGTOF was a file within the FBI’s NCIC.

7

Agent Kelley misunderstood the directions on the form and erroneously nominated Dr.

8 Ibrahim to the TSA’s no-fly list and the Interagency Border Information System (“IBIS”). He did

9 not intend to do so. This was a mistake, he admitted at trial. He intended to nominate her to the

10 Consular Lookout and Support System (“CLASS”), the TSA selectee list, TUSCAN (information

11 exported to Canada), and TACTICS (information exported to Australia). He checked the wrong

12 boxes, filling out the form exactly the opposite way from the instructions on the form. He made

13 this mistake even though the form stated, “It is recommended the subject NOT be entered into the

14 following selected terrorist screening databases.” An excerpt of Agent Kelley’s nomination form

15 is provided below:

16

17

18

19

20

21

22

23

24

Figure 1. VGTOF Form (November 2004.)

25 Based on the way Agent Kelley checked the boxes on the form, plaintiff was placed on the no-fly

26 list and IBIS (but not on CLASS, the selectee list, TUSCAN, or TACTICS). So, the way in

27 which plaintiff got on the no-fly list in the first place was human error by the FBI. Agent Kelley

28 did not learn of this error until his deposition in September 2013.

9

Case3:06-cv-00545-WHA Document682 Filed01/14/14 Page10 of 38

United States District Court For the Northern District of California

1

8. Around the same time, Agent Kelley’s squad conducted a mosque outreach

2 program. One purpose of the program was to provide a point of contact for mosques and Islamic

3 associations. The outreach program included Muslims and Sikhs in the South Bay.

4

9. In December 2004, Agent Kelley and his colleague interviewed Dr. Ibrahim, again

5 while she was attending Stanford University. (This was after he had filled out the form wrong.)

6 He asked, among other things, about her plans to attend a conference in Hawaii, her thesis work,

7 her plans after graduation, her involvement in the Muslim community, her husband, her travel

8 plans, and the organization Jemaah Islamiyah (TX 4, 116).

9

10. Jemaah Islamiyah is (and was then) on the Department of State’s list of designated

10 foreign terrorist organizations (TX 13). The FOIA-produced version of Agent Kelley’s interview

11 notes with Dr. Ibrahim were designated by the FBI as “315,” which means “International

12 Terrorism Investigations” (TX 4, 116, 516). Jemaah Islah Malaysia, a similar sounding name, is

13 not a terrorist organization but a Malaysian professional organization composed primarily of

14 individuals who studied in the United States or Europe. Other than Jemaah Islah Malaysia

15 coming up at trial when counsel asked about it, the significance of this possible point of confusion

16 has been obscured by counsel. This order does not find that Agent Kelley confused the two

17 organizations.

18

EVENTS FROM JANUARY 2005 TO MARCH 2005

19

11. In early January 2005, Dr. Ibrahim planned to fly from San Francisco to Hawaii

20 and then to Los Angeles and thence to Kuala Lumpur. Her plans were to attend a conference in

21 Hawaii (sponsored by Stanford University) from January 3 to January 6 and to present her

22 research findings at the conference.

23

12. On January 2, 2005, Dr. Ibrahim arrived at the San Francisco airport with her

24 daughter, Rafeah, then fourteen. At the time, Dr. Ibrahim was still recovering from her

25 hysterectomy surgery performed three months earlier and thus requested wheelchair assistance to

26 the airport gate.

27

13. The trouble started when Dr. Ibrahim arrived at the United Airlines counter. The

28 police were called by airline staff. She was handcuffed and arrested. She was escorted to a police

10

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United States District Court For the Northern District of California

1 car (while handcuffed) and transported to a holding cell by male police officers. There, a female

2 police officer asked her if she had any weapons and attempted to remove her hiijab.

3

14. She was held for approximately two hours. Paramedics were called so that

4 medication related to her hysterectomy surgery could be administered.

5

15. Eventually, an aviation security inspector with the Department of Homeland

6 Security informed Dr. Ibrahim that she was released and her name had been removed from the no-

7 fly list. The police were satisfied that there were insufficient grounds for making a criminal

8 complaint against her (TX 31). The trial record shows no evidence that would have justified a

9 detention or arrest. She was told that she could fly to Hawaii the next day. She did, voluntarily.

10 She was, however, given an unusual red boarding pass (in addition to her regular boarding pass)

11 with “SSSS,” meaning Secondary Security Screening Selection, printed on it.

12

16. Dr. Ibrahim flew to Hawaii and presented her research findings at the conference.

13 From there, she flew to Los Angeles and then to Kuala Lumpur. That was in January 2005.

14

17. The next trouble came two months later. In March 2005, Dr. Ibrahim planned to

15 visit the United States to meet with one of her Stanford thesis advisors and her friend, Professor

16 Paulson, who was very ill. She was not permitted to board the flight to the United States. She

17 was told her F-1 student visa had been revoked, which in fact it had been, as will be detailed

18 below. The ticket cost was approximately one month’s salary at the time. The record is unclear

19 as to the extent to which she was able to get reimbursed. So, even though she had been told she

20 was off the no-fly list, she was now being told that she could not come to the United States,

21 regardless of how she traveled. She has never been permitted to return to the United States since.

22

TERRORIST SCREENING DATABASE AND RELATED WATCHLISTS

23

18. The government maintains a web of interlocking watchlists, all now centered on

24 the Terrorist Screening Database (“TSDB”). This web and how they interlock are important to

25 the relief sought and awarded herein. The present tense is used but the findings accurately

26 describe the procedures in place at the time in question (except as indicated otherwise).

27

28

11

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1

19. The Terrorist Screening Center (“TSC”) is a multi-agency organization

2 administered by the FBI. The TSC is staffed by officials from various agencies, including the

3 FBI, the Department of Homeland Security, and the Department of State. The TSC manages the

4 Terrorist Screening Database. The TSC and TSDB were created after September 11 so that

5 information about known and suspected terrorists could be more centralized and then exported as

6 appropriate to various “customer databases” operated by other agencies and government entities.

7 In this way, “the dots could be connected.” Information in the TSDB is not classified, although a

8 closely allied and separate database called the Terrorist Identities Datamart Environment

9 (“TIDE”) does contain classified information. (The predecessor to TIDE was called TIPOFF.)

10 The National Counterterrorism Center (“NCTC”), a branch of the Office of the Director of

11 National Intelligence, places classified substantive “derogatory” information supporting a

12 nomination to the TSDB in TIDE. These terrorist watchlists, and others, provide information to

13 the United States intelligence community, a coalition of 17 agencies and organizations within the

14 Executive Branch, including the Office of the Director of National Intelligence and the FBI.

15

20. FBI agents and other government employees normally nominate individuals to the

16 TSDB using a “reasonable suspicion standard,” meaning articulable facts which, taken together

17 with rational inferences, reasonably warrant the determination that an individual is known or

18 suspected to be or has been engaged in conduct constituting, in preparation for, in aid of, or

19 related to terrorism and terrorist activities. Unlike a standard codified by Congress or rendered by

20 judicial decision, this “reasonable suspicion” standard was adopted by internal Executive Branch

21 policy and practice. From 2004 to 2007, there was no uniform standard for TSDB nominations.

22 Each agency promulgated its own nominating procedures for inclusion in the TSDB based on its

23 interpretation of homeland security presidential directives and the memorandum of opinion that

24 established the TSC. One such directive was Homeland Security Presidential Directive 6

25 (“HSPD-6”) which stated, “[t]his directive shall be implemented in a manner consistent with the

26 provisions of the Constitution and applicable laws, including those protecting the rights of all

27 Americans” (TX 538). Agents now interpret this guideline, and others, as meaning that it would

28

12

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1 not be appropriate to watchlist someone based upon their religion, religious practices, and any

2 other First Amendment activity.

3

21. For each nominee, the TSDB calls out which particular watchlists the nominee

4 should be on and which he or she should not be on. It is a box-check procedure, then

5 computerized. There are several watchlists affected by the TSDB, namely:

6

•

the no-fly list (TSA),

7

•

the selectee list (TSA),

8

•

Known and Suspected Terrorist File (“KSTF,” previously known as the Violent

Gang and Terrorist Organizations File),

9

•

Consular Lookout and Support System (“CLASS,” including CLASS-Visa and

10

CLASS-Passport) (Department of State),

11

•

TECS (not an acronym, but the successor of the Treasury Enforcement

Communications System) (Department of Homeland Security),

12

•

Interagency Border Inspection System (“IBIS”) (Department of Homeland

13

Security),

14

•

TUSCAN (used by Canada), and

15

•

TACTICS (used by Australia).

16 If nominated, designations in the TSDB are then exported to the nominated downstream customer

17 watchlists operated by various government entities. For example, information in the TSDB (if

18 selected) is sent to the Department of State for inclusion in CLASS-Visa or CLASS-Passport.

19

22. Due to Agent Kelley’s mistake, Dr. Ibrahim was nominated to the no-fly and IBIS

20 watchlists. She was placed in the TSDB and her information was exported to the no-fly list and

21 IBIS. Thus, when she arrived at the ticket counter, the airline (which has and had access to the

22 no-fly list), was obligated to deny her boarding (and then called the police).

23

23. When persons are placed on the no-fly list or any other watchlist, they receive no

24 formal notice of such placement and may never learn of such placement until, if ever, they

25 attempt to board a plane or do any other act covered by the watchlist.

26

24. When an agency “encounters” an individual via a visa application, airport

27 boarding, border entry, to take three examples, the agency official searches for the individual’s

28 identity on applicable watchlists. If there is a potential name match, the individual’s name is

13

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1 forwarded to the TSC. The TSC, in turn, reviews the TSDB record and an appropriate

2 counterterrorism response may be made.

3

TRAVEL REDRESS INQUIRY PROGRAM (TRIP)

4

25. Under Section 44926(a) of Title 49 of the United States Code:

5

The Secretary of Homeland Security shall establish a timely and

fair process for individuals who believe they have been delayed or

6

prohibited from boarding a commercial aircraft because they were

wrongly identified as a threat under the regimes utilized by the

7

Transportation Security Administration, United States Customs and

Border Protection, or any other office or component of the

8

Department of Homeland Security.

9 Prior to 2007, individuals who claimed they were denied or delayed boarding or entry to the

10 United States or repeatedly subjected to additional screening or inspection could submit a

11 Passenger Identity Verification Form (PIVF) to the TSA. This program was succeeded by the

12 DHS’s TRIP process in 2007.

13

26. If DHS determines that the complainant is an exact or near match to an identity in

14 the TSDB, the match is referred to the TSC’s redress unit.

15

27. The TSC’s redress unit reviews the information available to determine (1) whether

16 the individual’s status is an exact match to an identity in the TSDB; (2) if an exact match, whether

17 the traveler should continue to be in the TSDB; and (3) if the traveler should continue to be in the

18 TSDB, whether the traveler meets additional criteria for placement on the no-fly or selectee lists.

19

28. The TSC’s redress unit does not undertake additional fieldwork in determining

20 whether an individual was properly placed in the TSDB or customer databases. The review is

21 based on existing records and may (or may not) include contacting the nominating agency to

22 obtain any new derogatory information that supports a nomination. The TSC’s redress unit then

23 notifies DHS TRIP of any modification or removal of the individual’s record.

24

29. A letter responding to the request for redress is eventually sent to the complainant.

25 Dr. Ibrahim attempted to use this redress method and received a vague and inconclusive response,

26 described below.

27

28

14

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1

DEPARTMENT OF STATE AND VISA PROCEDURE

2

30. A visa is permission for an alien, also known as a foreign national, to approach the

3 borders of the United States and ask to enter. There are several types of visas, based primarily on

4 the purpose of the alien’s travel to the United States.

5

31. The procedure for obtaining a visa is as follows. First, the alien applies for a visa

6 by submitting a visa application to a consular officer. The consular officer then evaluates whether

7 the individual is eligible for a visa and what type of visa he or she may be eligible to receive.

8 Second, the applicant makes an appointment for a visa interview with a consular officer at the

9 United States embassy or a consulate abroad. Consular officers are employees of the Department

10 of State who are authorized to adjudicate visa applications overseas. Third, an interview is

11 conducted. Fourth, after the interview, the consular officer grants or denies the application.

12 Consular officers are required to refuse a visa application if the alien has failed to demonstrate

13 eligibility for the visa under the Immigration and Nationality Act, including under 8 U.S.C. 1182.

14

32. In ruling on applications, consular officers review the CLASS database,

15 maintained by the Department of State, for information that may inform the visa application and

16 adjudication process. Information is entered into CLASS directly by the Department of State or

17 indirectly from other agencies. For example, entries in the Department of Homeland Security’s

18 TECS database can be electronically transferred over to CLASS to inform the visa adjudication

19 process. CLASS also obtains information from the TSDB.

20

33. If the consular officer determines that further information is needed or if there is

21 insufficient information to make an adjudication, the consular officer may refuse an individual’s

22 visa application under 8 U.S.C. 1201(g), request further information from the applicant, and/or

23 request a Security Advisory Opinion (“SAO”) from the Department of State. A SAO request

24 initiates an interagency review of information about the applicant available to the Department of

25 State and other agencies, including classified intelligence in TIDE, to determine whether the alien

26 is inadmissible under 8 U.S.C. 1182(a)(3)(A) or (B) or otherwise ineligible for a visa. If

27 requested, a SAO opinion is rendered and the consular officer reviews the SAO opinion. The

28 consular officer then decides whether to issue the visa or refuse the visa application.

15

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1

34. Once a visa issues, if pertinent information comes to the attention of the

2 Department of State that was not available to the consular officer at the time of issuance, an

3 additional review of the alien’s eligibility and admissibility may be conducted. Section 1201(i)

4 states: “After the issuance of a visa or other documentation to any alien, the consular officer or the

5 Secretary of State may at any time, in his discretion, revoke such visa or other

6 documentation . . . .” The visa may be “prudentially” revoked, thereby making the individual

7 ineligible to approach the borders of the United States. Within the Department of State, such a

8 revocation is called “prudential.” Such a prudential revocation forces the alien to reapply for a

9 new visa, so that a new evaluation of the applicant’s eligibility and admissibility can be made.

10 When an alien’s visa is revoked, the alien is informed of his or her right to establish their

11 qualification for a visa through a new visa application.

12

35. The visa office in the Department of State keeps “revocation files” that explain the

13 basis for an entry in the CLASS database until the applicant reaches age ninety and has no visa

14 application within the past ten years.

15

PLAINTIFF AND THE WATCHLISTS

16

36. Dr. Ibrahim obtained a F-1 student visa to attend Stanford University for her Ph.D.

17 for at least the duration of 2000 to 2005.

18

37. In November 2004, Agent Kelley nominated Dr. Ibrahim to the TSDB as he

19 intended, but, by his human error, his nomination form wrongly caused plaintiff to be placed on

20 the no-fly list (and in the IBIS database).

21

38. Shortly after the arrest and detention, on or around January 2, 2005, the TSC

22 determinated that Dr. Ibrahim should not have been on the no-fly list and her name was thereafter

23 removed from the no-fly list. She, however, remained in the TSDB and on the selectee and

24 CLASS lists.

25

39. In an e-mail dated January 3, 2005, between two officials in the coordination

26 division of the visa office, one wrote (TX 16) (emphasis in original):

27

As I mentioned to you, I have a stack of pending revocations that are

based on VGTO entries. These revocations contain virtually no

28

derogatory information. After a long and frustrating game of phone

16

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1

tag with INR, TSC, and Steve Naugle of the FBI’s VGTO office,

finally we’re going to revoke them.

2

Per my conversation with Steve, there is no practical way to

3

determine what the basis of the investigation is for these applicants.

The only way to do it would be to contact the case agent for each

4

case individually to determine what the basis of the investigation is.

Since we don’t have the time to do that (and, in my experience, case

5

agents don’t call you back promptly, if at all), we will accept that the

opening of an investigation itself is a prima facie indicator of

6

potential ineligibility under 3(B) . . . .

7

40. A pending revocation for Dr. Ibrahim was in the above-referenced stack. (Again,

8 VGTO referred to the FBI’s Violent Gang and Terrorist Organization office; INR refers to the

9 Department of State’s Bureau of Intelligence and Research; and the term 3(B) referred to Section

10 212(a)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(3)(B).)

11

41. Dr. Ibrahim’s F-1 student visa was revoked on January 31, 2005. The certificate of

12 revocation stated: “subsequent to visa issuance, information has come to light indicating that the

13 alien may be inadmissable to the United States and ineligible to receive a visa under section

14 212(a)(3)(B) of the Immigration and Nationality Act, such that the alien should reappear before a

15 U.S. Consular Officer to establish his eligibility for a visa before being permitted to apply for entry

16 to the United States” (TX 15). The trial record does not explain what “information” had come to

17 light. After Dr. Ibrahim’s visa was revoked, the Department of State entered a record into CLASS

18 that would notify any consular officer adjudicating a future visa application submitted by Dr.

19 Ibrahim that Dr. Ibrahim may be inadmissible under 8 U.S.C. 1182(a)(3)(B).

20

42. The revocation was pursuant to Section 212(a)(3)(B) of the Immigration and

21 Nationality Act, 8 U.S.C. 1182(a)(3)(B). The revocation itself was on January 31, 2005, and Dr.

22 Ibrahim learned of the revocation in March 2005.

23

43. In an e-mail dated February 8, 2005, between the chief of the consular section at the

24 United States Embassy in Kuala Lumpur and an official in the coordination division of the visa

25 office of the Department of State, the chief asked about a prudential visa revocation cable he had

26 received concerning the events Dr. Ibrahim experienced in January 2005. The Department of State

27 employee replied in e-mail stating (TX 17):

28

Paul asked me to respond to you on this case, as I handle revocations

in VO/L/C. The short version is that this person’s visa was revoked

17

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1

because there is law enforcement interest in her as a potential

terrorist. This is sufficient to prudentially revoke a visa but doesn’t

2

constitute a finding of ineligibility. The idea is to revoke first and

resolve the issues later in the context of a new visa application . . . .

3

My guess based on past experience is that she’s probably issuable.

However, there’s no way to be sure without putting her through the

4

interagency process. I’ll gin up the revocation.

5 VO/L/C is the designation of the coordination division within the visa office.

6

44. After she tried unsuccessfully to return to the United States in March 2005, using

7 what she thought was a valid student visa, a letter arrived for Dr. Ibrahim, dated April 2005,

8 stating: “[t]he revocation of your visa does not necessarily indicate that you are ineligible to

9 receive a U.S. visa in future [sic]. That determination can only be made at such time as you apply

10 for a new visa. Should you choose to do so, instructions can be found on the Embassy web site at

11 http://malaysia.usembassy.gov” (TX 224).

12

45. To repeat, government counsel have conceded at trial and this order finds that Dr.

13 Ibrahim is not a threat to the national security of the United States. She does not pose (and has not

14 posed) a threat of committing an act of international or domestic terrorism with respect to an

15 aircraft, a threat to airline passenger or civil aviation security, or a threat of domestic terrorism.

16

46. In March 2005, Dr. Ibrahim filed a Passenger Identity Verification Form (PIVF)

17 (TX 76).

18

47. In December 2005, Dr. Ibrahim was removed from the selectee list. Around this

19 time, however, she was added to TACTICS (used by Australia) and TUSCAN (used by Canada).

20 No reason was provided for this at trial.

21

48. On January 27, 2006, this action was filed.

22

49. In a form dated February 10, 2006, an unidentified government agent requested that

23 Dr. Ibrahim be “Remove[d] From ALL Watchlisting Supported Systems (For terrorist subjects:

24 due to closure of case AND no nexus to terrorism)” (TX 10). For the question “Is the individual

25 qualified for placement on the no fly list,” the “No” box was checked. For the question, “If no, is

26 the individual qualified for placement on the selectee list,” the “No” box was checked.

27

50. In 2006, the government determined that Dr. Ibrahim did not meet the reasonable

28 suspicion standard. On September 18, 2006, Dr. Ibrahim was removed from the TSDB. The trial

18

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1 record, however, does not show whether she was removed from all of the customer watchlists

2 subscribing to the TSDB.

3

51. In a letter dated March 1, 2006, the TSA responded to Dr. Ibrahim’s PIVF

4 submission as follows (TX 40):

5

The Transportation Security Administration (TSA) has received your

Passenger Identity Verification Form (PIVF) and identity

6

documentation. In response to your request, we have conducted a

review of any applicable records in consultation with other federal

7

agencies, as appropriate. Where it has been determined that a

correction to records is warranted, these records have been modified

8

to address any delay or denial of boarding that you may have

experienced as a result of the watchlist screening process . . . . This

9

letter constitutes TSA’s final agency decision, which is reviewable

by the United States Court of Appeals under 49 U.S.C. § 46110. If

10

you have any further questions, please call the TSA Contact Center

Office of Transportation Security Redress (OTSR) toll-free at (866)

11

289-9673 or locally at (571) 227-2900, send an [e]-mail to TSA-

ContactCenter@dhs.gov, or write to the following address . . . .

12

The response did not indicate Dr. Ibrahim’s status with respect to the TSDB and no-fly and

13

selectee lists.

14

52. One year later, on March 2, 2007, Dr. Ibrahim was placed back in the TSDB. The

15

trial record does not show why or which customer watchlists were to be notified.

16

53. Two months later, however, on May 30, 2007, Dr. Ibrahim was again removed from

17

the TSDB. The trial record does not show the extent to which Dr. Ibrahim’s name was then

18

removed from the customer watchlists, nor the reason for the removal.

19

54. Dr. Ibrahim did not apply for a new visa from 2005 to 2009. In 2009, however, she

20

applied for a visa to attend proceedings in this action. On September 29, 2009, Dr. Ibrahim was

21

interviewed at the American Embassy in Kuala Lumpur for her visa application.

22

55. On October 20, 2009, Dr. Ibrahim was nominated to the TSDB pursuant to a secret

23

exception to the reasonable suspicion standard. The nature of the exception and the reasons for the

24

nomination are claimed to be state secrets. In Dr. Ibrahim’s circumstance, the effect of the

25

nomination was that Dr. Ibrahim’s information was exported solely to the Department of State’s

26

CLASS database and the United States Customs and Border Patrol’s TECS database.

27

56. From October 2009 to present, Dr. Ibrahim has been included in the TSDB,

28

CLASS, and TECS. She has been off the no-fly and selectee lists.

19

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1

57. Dr. Ibrahim’s 2009 visa application was initially refused under Section 221(g) of

2 the Immigration and Nationality Act, 8 U.S.C. 1201(g), because it was determinated that there was

3 insufficient information to make a final adjudication in the matter. The consular officer requested

4 a Security Advisory Opinion (“SAO”) from the Department of State. There was a concern by the

5 consular official that Dr. Ibrahim was potentially inadmissible under Section 212(a)(3)(B) of the

6 Immigration and Nationality Act.

7

58. Section 212(a)(3)(B) provides nine classes of aliens ineligible for visas or

8 admission into the United States based on terrorist activities. Because that provision is lengthy

9 and covers many different categories, and because its length bears on the relief granted herein,

10 Section 212(a)(3)(B), 8 U.S.C. 1182(a)(3)(B), is set forth in full here:

11

(B) Terrorist activities

12

(i) In general

13

Any alien who--

14

(I) has engaged in a terrorist activity;

15

(II) a consular officer, the Attorney General, or the Secretary of

Homeland Security knows, or has reasonable ground to believe, is

16

engaged in or is likely to engage after entry in any terrorist activity

(as defined in clause (iv));

17

(III) has, under circumstances indicating an intention to cause death

18

or serious bodily harm, incited terrorist activity;

19

(IV) is a representative (as defined in clause (v)) of--

20

(aa) a terrorist organization (as defined in clause (vi)); or

21

(bb) a political, social, or other group that endorses or espouses

terrorist activity;

22

(V) is a member of a terrorist organization described in subclause

23

(I) or (II) of clause (vi);

24

(VI) is a member of a terrorist organization described in clause (vi)

(III), unless the alien can demonstrate by clear and convincing

25

evidence that the alien did not know, and should not reasonably

have known, that the organization was a terrorist organization;

26

(VII) endorses or espouses terrorist activity or persuades others to

27

endorse or espouse terrorist activity or support a terrorist

organization;

28

20

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1

(VIII) has received military-type training (as defined in section

2339D(c)(1) of Title 18) from or on behalf of any organization that,

2

at the time the training was received, was a terrorist organization

(as defined in clause (vi)); or

3

(IX) is the spouse or child of an alien who is inadmissible under this

4

subparagraph, if the activity causing the alien to be found

inadmissible occurred within the last 5 years, is inadmissible.

5

An alien who is an officer, official, representative, or spokesman of

6

the Palestine Liberation Organization is considered, for purposes of

this chapter, to be engaged in a terrorist activity.

7

(ii) Exception

8

Subclause (IX) of clause (I) does not apply to a spouse or child–

9

(I) who did not know or should not reasonably have known of the

10

activity causing the alien to be found inadmissible under this

section; or

11

(II) whom the consular officer or Attorney General has reasonable

12

grounds to believe has renounced the activity causing the alien to be

found inadmissible under this section.

13

59. The SAO stated: “Information on this applicant surfaced during the SAO review

14

that would support a [Section] 212(a)(3)(B) inadmissibility finding. Post should refuse the case

15

accordingly. Since the Department reports all visa refusals under INA section 212(a)(3)(B) to

16

Congress, post should notify CA/VO/L/C when the visa refusal is effected. There has been no

17

request for an INA section 212(d)(3)(A) waiver at this time” (TX 68). (INA means Immigration

18

and Nationality Act.) Based on the SAO, the visa was denied. Dr. Ibrahim was thus not permitted

19

to attend proceedings in this action or return to the United States.

20

60. On December 14, 2009, Dr. Ibrahim’s visa application was denied. Dr. Ibrahim

21

was given a letter by the consular officer informing her that the Department of State was unable to

22

issue her a visa pursuant to Section 212(a)(3)(B). The consular officer wrote the word

23

“(Terrorist)” on the form beside Section 212(a)(3)(B) to explain why she was deemed

24

inadmissible. An excerpt of the form is provided below (TX 47):

25

26

27

28

21

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1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

Figure 2. Department of State Visa Refusal Letter.

17

61. A Section 212(d)(3)(A) waiver is one granted by the Attorney General or the

18 consular office for aliens who have certain inadmissibilities but are still permitted to obtain visas.

19 Section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A), states:

20

Except as provided in this subsection, an alien (i) who is applying

for a nonimmigrant visa and is known or believed by the consular

21

officer to be ineligible for such visa under subsection (a) of this

section (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii),

22

(3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such

subsection), may, after approval by the Attorney General of a

23

recommendation by the Secretary of State or by the consular officer

that the alien be admitted temporarily despite his inadmissibility, be

24

granted such a visa and may be admitted into the United States

temporarily as a nonimmigrant in the discretion of the Attorney

25

General, or (ii) who is inadmissible under subsection (a) of this

section (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii),

26

(3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such

subsection), but who is in possession of appropriate documents or is

27

granted a waiver thereof and is seeking admission, may be admitted

into the United States temporarily as a nonimmigrant in the

28

discretion of the Attorney General. The Attorney General shall

prescribe conditions, including exaction of such bonds as may be

22

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1

necessary, to control and regulate the admission and return of

inadmissible aliens applying for temporary admission under this

2

paragraph.

3

62. Section 40.301 of Title 22 of the Code of Federal Regulations states:

4

(a) Report or recommendation to Department. Except as provided in

paragraph (b) of this section, consular officers may, upon their own

5

initiative, and shall, upon the request of the Secretary of State or

upon the request of the alien, submit a report to the Department for

6

possible transmission to the Secretary of Homeland Security

pursuant to the provisions of INA 212(d)(3)(A) in the case of an

7

alien who is classifiable as a nonimmigrant but who is known or

believed by the consular officer to be ineligible to receive a

8

nonimmigrant visa under the provisions of INA 212(a), other than

INA 212(a) (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), (3)(E)(i), or

9

(3)(E)(ii).

10

(b) Recommendation to designated DHS officer abroad. A consular

officer may, in certain categories defined by the Secretary of State,

11

recommend directly to designated DHS officers that the temporary

admission of an alien ineligible to receive a visa be authorized under

12

INA 212(d)(3)(A).

13

(c) Secretary of Homeland Security may impose conditions. When

the Secretary of Homeland Security authorizes the temporary

14

admission of an ineligible alien as a nonimmigrant and the consular

officer is so informed, the consular officer may proceed with the

15

issuance of a nonimmigrant visa to the alien, subject to the

conditions, if any, imposed by the Secretary of Homeland Security.

16

63. Section 41.121(b) sets forth the visa refusal procedure which includes informing the

17

alien of whether grounds of ineligibility (unless disclosure is barred under Section 212(b)(2) or

18

(3)) and whether there is, in law or regulation, a mechanism (such as waiver) to overcome the

19

refusal. Section 41.121(b)(1) of Title 22 of the Code of Federal Regulations states:

20

(1) When a consular officer knows or has reason to believe a visa

21

applicant is ineligible and refuses the issuance of a visa, he or she

must inform the alien of the ground(s) of ineligibility (unless

22

disclosure is barred under INA 212(b)(2) or (3)) and whether there

is, in law or regulations, a mechanism (such as a waiver) to

23

overcome the refusal. The officer shall note the reason for the

refusal on the application. Upon refusing the nonimmigrant visa, the

24

consular officer shall retain the original of each document upon

which the refusal was based, as well as each document indicating a

25

possible ground of ineligibility, and should return all other

supporting documents supplied by the applicant.

26

(emphasis added).

27

64. The TSC has determined that Dr. Ibrahim does not currently meet the reasonable

28

suspicion standard for inclusion in the TSDB. She, however, remains in the TSDB pursuant to a

23

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United States District Court For the Northern District of California

1 classified and secret exception to the reasonable suspicion standard. Again, both the reasonable

2 suspicion standard and the secret exception are self-imposed processes and procedures within the

3 Executive Branch.

4

65. In September 2013, Dr. Ibrahim submitted a visa application so that she could

5 attend the trial on this matter. She attended a consular officer interview in October 2013. At the

6 interview, she was asked to provide supplemental information via e-mail. Trial in this action

7 began on December 2 and ended on December 6. As of December 6, Dr. Ibrahim had not received

8 a response to her visa application. At trial, however, government counsel stated verbally that the

9 visa had been denied. Plaintiff’s counsel said that they had not been so aware and that Dr. Ibrahim

10 had not been so notified.

11

DR. IBRAHIM TODAY

12

66. Dr. Ibrahim has been successful at the Universiti Putra Malaysia. She was selected

13 as Deputy Dean in 2006 and Dean for the Faculty of Design and Architecture in 2011.

14

67. One grant that Dr. Ibrahim received accounted for 75% of the grant funding

15 received for the entire faculty.

16

68. Due to her inability to travel to the United States, Dr. Ibrahim has resorted to

17 collaborating with her United States colleagues via e-mail, Skype, and telephone.

18

69. Dr. Ibrahim desires to visit the United States to attend conferences, collaborate on

19 projects, and visit venture capitalists.

20

70. Since 2005, Dr. Ibrahim has never been permitted to enter the United States.

21

THE CITIZEN DAUGHTER

22

On the first day of trial, before opening statements, plaintiff’s counsel reported that

23 plaintiff’s daughter, Raihan Binti Mustafa Kamal, a United States citizen and a witness disclosed

24 on plaintiff’s witness list, had not been permitted to board her flight from Kuala Lumpur to Manila

25 and thence to the United States to attend trial. Counsel were ordered to investigate. After a post-

26 trial evidentiary hearing on the problem, this order finds as follows.

27

71. Ms. Kamal had reservations for (i) a Malaysian Airlines flight from Kuala Lumpur

28 to Manila and (ii) a Philippine Airlines flight from Manila to San Francisco for December 2.

24

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1

72. On December 1, the National Targeting Center (“NTC”) within the Department of

2 Homeland Security began vetting passengers for the Philippine Airlines flight. NTC officers

3 determined that Ms. Kamal was matched to a record that was listed in the TSDB in a category

4 which notifies the Department of State and Department of Homeland Security that other

5 government agencies may be in possession of substantive “derogatory” information about the

6 individual that may be relevant to an admissibility determination under the Immigration and

7 Nationality Act. United States citizens, of course, are not subject to the admissibility provisions of

8 the Immigration and Nationality Act.

9

73. Within six minutes, the United States Customs and Border Patrol (“CBP”)

10 determined that Ms. Kamal appeared to be a United States citizen. The passenger information

11 submitted by the Philippine Airlines for her flight, however, did not include citizen information.

12 There was thus a need to verify her identify upon check-in. The NTC requested additional

13 screening of Ms. Kamal in Manila via the regional carrier liaison group (“RCLG”) in Hawaii.

14

74. The subject line to an e-mail dated December 1, from the Hawaii RCLG to the

15 Philippine Airlines stated: “POSSIBLE NO BOARD REQUESTPNR WNDYJS” and stated

16 “NOTICE TO AIR CARRIER The [DHS and CBP] recommends the airline to contact HRCLG

17 when the following passenger shows up to check in counter to verify information regarding

18 passenger . . . Mustafa Kamal, R” (Dugan Decl. Exh. A).

19

75. Before the scheduled departure time, the RCLG was merely advised that Ms. Kamal

20 did not arrive for her scheduled departure.

21

76. On December 2, Ms. Kamal’s records were updated in the TSDB to reflect that she

22 was a United States citizen. The request for additional screening was rescinded and it was

23 requested that Ms. Kamal be allowed to board without delay.

24

25

26

27

28

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1

CONCLUSIONS OF LAW

2

DUE PROCESS

3

At long last, the government has conceded that plaintiff poses no threat to air safety or

4 national security and should never have been placed on the no-fly list. She got there by human

5 error within the FBI. This too is conceded. This was no minor human error but an error with

6 palpable impact, leading to the humiliation, cuffing, and incarceration of an innocent and

7 incapacitated air traveler. That it was human error may seem hard to accept — the FBI agent filled

8 out the nomination form in a way exactly opposite from the instructions on the form, a

9 bureaucratic analogy to a surgeon amputating the wrong digit — human error, yes, but of

10 considerable consequence. Nonetheless, this order accepts the agent’s testimony.

11

Since her erroneous placement on the no-fly list, plaintiff has endured a litany of troubles

12 in getting back into the United States. Whether true or not, she reasonably suspects that those

13 troubles are traceable to the original wrong that placed her on the no-fly list. Once derogatory

14 information is posted to the TSDB, it can propagate extensively through the government’s

15 interlocking complex of databases, like a bad credit report that will never go away. As a post-

16 deprivation remedy, therefore, due process requires, and this order requires, that the government

17 remediate its wrong by cleansing and/or correcting all of its lists and records of the mistaken 2004

18 derogatory designation and by certifying that such cleansing and/or correction has been accurately

19 done as to every single government watchlist and database. This will not implicate classified

20 information in any way but will give plaintiff assurance that, going forward, her troubles in

21 returning to the United States, if they continue, are unaffected by the original wrong.

22

The basic issue is what due process of law requires in these circumstances. The Supreme

23 Court has stated that “[d]ue process . . . is a flexible concept that varies with the particular

24 situation.” Zinermon v. Burch, 494 U.S. 113, 127 (1990). To determine what process is

25 constitutionally due, the Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), set

26 forth the following three-factor test:

27

28

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1

First, the private interest that will be affected by the official action;

second, the risk of an erroneous deprivation of such interest through

2

the procedures used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the Government’s

3

interest.

4 Due process provides heightened protection against government interference when certain

5 fundamental rights and liberty interests are involved. Washington v. Glucksberg, 521 U.S. 702,

6 720 (1997).

7

With respect to Dr. Ibrahim, the private interests at stake in her 2005 deprivations were the

8 right to travel, Kent v. Dulles, 357 U.S. 116, 125 (1958), and the right to be free from

9 incarceration, Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004), and from the stigma and humiliation

10 of a public denial of boarding and incarceration, Paul v. Davis, 424 U.S. 693, 701, 711 (1976), any

11 one of which would be sufficient and all three of which apply on this record.

12

With respect to the government’s interest, all would surely agree that our government must

13 and should track terrorists who pose a threat to America — not just to its air travel — but to any

14 aspect of our national security. In this connection, however, the government concedes that Dr.

15 Ibrahim herself poses no such threat (nor did she in 2005).

16

The final Mathews factor is the risk of an erroneous deprivation through the procedures

17 used and the probable value, if any, of additional or substitute procedural safeguards. FBI Agent

18 Kelley made a plain, old-fashioned, monumental error in filling out the VGTOF nomination form

19 for Dr. Ibrahim. He checked the boxes in exactly the opposite way from the instructions on the

20 form, thus nominating Dr. Ibrahim to the no-fly list (against his intention). This was the start of all

21 problems in Dr. Ibrahim’s case. Surprisingly, Agent Kelley first learned of this mistake eight

22 years later at his deposition.

23

Significantly, therefore, our case involves a conceded, proven, undeniable, and serious

24 error by the government — not merely a risk of error. Consequently, this order holds that due

25 process entitles Dr. Ibrahim to a correction in the government’s records to prevent the 2004 error

26 from further propagating through the various agency databases and from causing further injury to

27 Dr. Ibrahim. By this order, all defendants shall specifically and thoroughly query the databases

28 maintained by them, such as the TSDB, TIDE, CLASS, KSTF, TECS, IBIS, TUSCAN, TACTICS,

27

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1 and the no-fly and selectee lists, and to remove all references to the designations made by the

2 defective 2004 nomination form or, if left in place, to add a correction in the same paragraph that

3 the designations were erroneous and should not be relied upon for any purpose. To be clear, no

4 agency should even rely on Agent Kelley’s actual unexpressed intention to nominate to certain

5 lists in 2004, for the form instructions were not properly followed. The designations in the

6 November 2004 form should be disregarded for all purposes. The government is always free to

7 make a new nomination doing it the right way. A deadline will be set for defendants to file

8 declarations under oath attesting to compliance.

9

It is perhaps true that the error has already been corrected, at least in part, but there is

10 reason to doubt that the error and all of its echoes have been traced and cleansed from all

11 interlocking databases. A correction in the TSDB and TIDE would not have automatically

12 expunged incorrect data previously exported from the TSDB and TIDE to the customer agency

13 databases. For example, the Department of State separately maintains its CLASS database. If the

14 bad information was transferred from the TSDB and TIDE to CLASS in the 2004 period, then that

15 bad information may remain there and may linger on there notwithstanding a correction in the

16 TSDB and TIDE. This order will require defendants to trace through each agency database

17 employing the TSDB and TIDE and make sure the correction or deletion has actually been made.

18

This order finds that suspicious adverse effects continued to haunt Dr. Ibrahim in 2005 and

19 2006, even though the government claims to have learned of and corrected the mistake. For

20 example, after her name was removed from the no-fly list, the next day, Dr. Ibrahim was issued a

21 bright red “SSSS” pass. Less than a month after she was removed from the no-fly list, her visa

22 was “prudentially” revoked. In March 2005, she was not permitted to fly to the United States. Her

23 daughter was not allowed to fly to the United States even to attend this trial despite the fact that

24 her daughter is a United States citizen. After so much gnashing of teeth and so much on-the-list-

25 off-the-list machinations, the government is ordered to provide the foregoing relief to remediate its

26 wrong. If the government has already cleansed its records, then no harm will be done in making

27 sure again and so certifying to the Court.

28

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1

With respect to the government’s TRIP program, which does provide a measure of post-

2 deprivation relief, this order holds that it is inadequate, at least on this record. After Dr. Ibrahim

3 was denied boarding on January 2, 2005, and denied boarding to return in March 2005, she

4 submitted a Passenger Identity Verification Form (PIVF), a program that eventually morphed into

5 the TRIP program by 2007. Approximately one year later, the TSA responded to her PIVF form

6 with the following vague response (TX 40):

7

Where it has been determined that a correction to records is

warranted, these records have been modified to address any delay or

8

denial of boarding that you may have experienced as a result of the

watchlist screening process.

9

Noticeably missing from the response to Dr. Ibrahim was whether there had been errors in her files

10

and whether all errors in customer databases had been corrected. This vague response fell short of

11

providing any assurance to Dr. Ibrahim — who the government concedes is not a national security

12

threat and was the victim of concrete, reviewable adverse government action caused by

13

government error — that the mistake had been traced down in all its forms and venues and

14

corrected. Al Haramain Islamic Found., Inc. v. United States Dep’t of Treasury, 686 F.3d 965,

15

985–88 (9th Cir. 2012).

16

This order provides only a post-deprivation remedy, to be sure, but post-deprivation

17

remedies are efficacious, especially where, as here, it would be impractical and harmful to national

18

security to routinely provide a pre-deprivation opportunity to be heard of the broad and universal

19

type urged by plaintiff’s counsel. Haig v. Agee, 453 U.S. 280, 309–10 (1981). Such advance

20

notice to all nominees would aid terrorists in their plans to bomb and kill Americans. Moreover, at

21

the time of listing, the government would have no way of knowing which nonimmigrant aliens

22

living abroad would enjoy standing under Ibrahim II. Instead, any remedy must await the time

23

when, if ever, concrete, reviewable adverse action is taken against the nominee.

24

Put differently, until concrete, reviewable adverse action occurs against a nominee, the

25

Executive Branch must be free to maintain its watchlists in secret, just as federal agents must be

26

able to maintain in secret its investigations into organized crime, drug trafficking organizations,

27

prostitution, child-pornography rings, and so forth. To publicize such investigative details would

28

ruin them. Once concrete, reviewable adverse action is taken against a target, then there is and

29

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1 will be time enough to determine what post-deprivation process is due the individual affected. In

2 this connection, since the reasonable suspicion standard is an internal guideline used within the

3 Executive Branch for watchlisting and not imposed by statute (or by specific judicial holding), the

4 Executive Branch is free to modify its own standard as needed by exception, even if the exception

5 is cloaked in state secrets. Any other rule requiring reviewability before concrete adverse action

6 would be manifestly unworkable.*

7

Given the Kafkaesque on-off-on-list treatment imposed on Dr. Ibrahim, the government is

8 further ordered expressly to tell Dr. Ibrahim that she is no longer on the no-fly list and has not

9 been on it since 2005 (always subject, of course, to future developments and evidence that might

10 warrant reinstating her to the list). This relief is appropriate and warranted because of the

11 confusion generated by the government’s own mistake and the very real misapprehension on her

12 part that the later visa denials are traceable to her erroneous 2004 placement on the no-fly list,

13 suggesting (reasonably from her viewpoint) that she somehow remains on the no-fly list.

14

It is true, as the government asserts as part of its ripeness position, that she cannot fly to the

15 United States without a visa, but she is entitled to try to solve one hurdle at a time and perhaps the

16 day will come when all hurdles are cleared and she can fly back to our country. The government’s

17 legitimate interest in keeping secret the composition of the no-fly list should yield, on the facts of

18 this case, to a particularized remedy isolated by this order only to someone even the government

19 concludes poses no threat to the United States. Everyone else in this case knows it. As a matter of

20 remedy, she should be told that the no-fly hurdle has been cleared.

21

*

*

*

22

23

* In the instant case, the nomination in 2004 to the no-fly list was conceded at trial to have been a

mistake. In this sense, this is an easier case to resolve. Harder no-fly cases surely exist. For example, the
24 government uses “derogatory” information to place individuals on the no-fly list. When an individual is refused

boarding, does he or she have a right to know the specific information that led to the listing? Certainly in some
25 (but not all) cases, providing the specifics would reveal sources and methods used in our counterterrorism

defense program and disclosure would unreasonably jeopardize our national security. Possibly, instead, a
26 general summary might provide a degree of due process, allowing the nominee an opportunity to refute the

charge. Or, agents might interview the nominee in such a way as to address the points of concern without
27 revealing the specifics. Possibly (or possibly not), even that much process would betray our defense systems to

our enemies. This order need not and does not reach this tougher, broader issue, for, again, the listing of Dr.
28 Ibrahim was concededly based on human error. Revealing this error could not and has not betrayed any

worthwhile methods or sources.

30

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1

No relief granted herein implicates state secrets. The foregoing relief does nothing more

2 than order the government to delete or to correct in all its agency systems any ongoing effects of

3 its own admitted inexcusable error and reconfirm what she was told in 2005, namely that she is not

4 on the no-fly list. The government has no defense, classified or not, against their conceded error in

5 2004. In complying with this relief, the government will not have to reveal any classified

6 information. It merely has to certify that it has cleansed its record of its own error and reveal to

7 plaintiff her current no-fly list status, a non-classified item that the Department of Homeland

8 Security itself revealed to Dr. Ibrahim in 2005.

9

In sum, after what our government has done by error to Dr. Ibrahim, this order holds that

10 she is entitled to the post-deprivation remedy described above, that the government’s post-

11 deprivation administrative remedies fall far short of such relief, and to deny her such relief would

12 deprive her of due process of law. This order will supply the due process that otherwise has been

13 denied to plaintiff.

14

THE VISA ISSUES

15

In December 2009, Dr. Ibrahim was informed that her visa application was denied pursuant

16 to Section 212(a)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(3)(B). The

17 consular officer wrote the word “(Terrorist)” on the denial form. It is undisputed, moreover, that

18 the visa refusal form did not have a check mark next to the box stating, “You are eligible to apply

19 for a waiver on the ground(s) of ineligibility” (TX 47). It is also undisputed that the Immigration

20 and Naturalization Act provides that nonimmigrant visa applicants may apply for a waiver of many

21 of the grounds of visa ineligibility under 8 U.S.C. 1182(a).

22

The Court has read the relevant classified information, under seal and ex parte, that led to

23 the visa denials. That classified information, if accurate, warranted denial of the visa under

24 Section 212(a)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(3)(B). (That

25 information was different from the 2004 mistaken nomination by Agent Kelley.) Therefore, under

26 the state secrets privilege, any challenge to the visa denials in 2009 and 2013 must be denied.

27 Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1080, 1086–89 (9th Cir. 2010) (en banc). In

28

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1 any event, denial of visas may not be reviewed by district courts. Kleindienst v. Mandel, 408 U.S.

2 753, 769–70 (1972).

3

Nonetheless, this order grants other limited relief as follows. The government must inform

4 Dr. Ibrahim of the specific subsection of Section 212(a)(3)(B) that rendered her ineligible for a

5 visa in 2009 and 2013. This is pursuant to the on-point holding of Din v. Kerry, 718 F.3d 856, 863

6 (9th Cir. 2013). As quoted above in the findings, subpart B has nine subsections and is lengthy.

7 The pertinent subsections should have been identified to plaintiff, according to Din. Doing so

8 would have assisted her in understanding the particular provision of law that barred her entry.

9 Merely citing to a lengthy collection of grounds collected together under the heading “Terrorist

10 activities” will not do under Din. Under the law of our circuit, this precise error is reviewable and

11 relief is warranted by the record.

12

One might wonder why, if Dr. Ibrahim herself is concededly not a threat to our national

13 security, the government would find her inadmissible under the Act. In this connection, please

14 remember that the Act includes nine ineligible categories. Some of them go beyond whether the

15 applicant herself poses a national security threat.

16

Keeping in mind the government’s concession that Dr. Ibrahim herself is not a threat to the

17 United States, this order further holds that the consular officer erred in indicating that Dr. Ibrahim

18 was ineligible to apply for a waiver of the ground(s) for ineligibility (TX 47). This is a holding

19 separate and apart from Din, so the reason for reviewability will now be spelled out.

20

The Immigration and Nationality Act confers upon consular officers exclusive authority to

21 review applications for visas, precluding even the Secretary of State from controlling their

22 determinations. See 8 U.S.C. 1104(a), 1201(a). The powers afforded to consular officers include,

23 in particular, the granting, denying, and revoking of immigrant and non-immigrant visas. 8 U.S.C.

24 1201(a), (i). Consular officers exercise this authority subject to the eligibility requirements in the

25 statute and corresponding regulations. 22 C.F.R. 41.121–122.

26

Section 41.121 of Title 22 of the Code of Federal Regulations governs the process for

27 refusal of individual visas. It states that “[w]hen a consular officer knows or has reason to believe

28 a visa applicant is ineligible and refuses the issuance of a visa, he or she must inform the alien . . .

32

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1 whether there is, in law or regulations, a mechanism (such as waiver) to overcome the refusal”

2 (emphasis added). Section 42.81 adds that “[t]he consular officer shall inform the applicant of the

3 provision of law or implementing regulation on which the [visa] refusal is based and of any

4 statutory provision of law or implementing regulation under which administrative relief is

5 available” (emphasis added). The regulations governing the issuance of nonimmigrant visas do

6 not vest the consular officials with discretion on whether to follow the procedure proscribed by the

7 Code of Federal Regulations. See Patel v. Reno, 134 F.3d 929, 931–32 (9th Cir. 1997) (if consular

8 official fails to render a decision in accordance with Section 42.81, courts have jurisdiction to

9 compel him to do so).

10

Here, the consular officer indicated, according to the form letter, that Dr. Ibrahim was

11 ineligible for a visa or admission into the United States under Section 212(a)(3)(B). At trial and in

12 the post-trial briefing, the government has not argued that Dr. Ibrahim was ineligible for a waiver

13 and the trial record did not demonstrate (other than via the letter) that the consular officer ever

14 even made a determination, one way or the other, as to whether Dr. Ibrahim was eligible. As the

15 government has conceded, however, Dr. Ibrahim posed no threat of committing an act of

16 international or domestic terrorism. The consular officer, however, never informed Dr. Ibrahim

17 that she could apply for a waiver to be admitted to the United States temporarily. In this Court’s

18 view, Dr. Ibrahim was at least eligible to apply for a discretionary waiver.

19

The government argues that regardless of whether the consular officer made a mistake in

20 determining Dr. Ibrahim’s waiver eligibility, the decision was entirely discretionary and therefore

21 not subject to judicial review. It is true that a consular officer’s discretionary decision to grant or

22 deny a visa petition is not subject to judicial review. See Li Hing of Hong Kong, Inc. v. Levin, 800

23 F.2d 970, 971 (9th Cir. 1986). On the other hand, when a claim challenges the authority of the

24 consular officer to take or fail to take an action as opposed to a decision actually taken within the

25 consular officer’s discretion, limited reviewability exists. See Mulligan v. Schultz, 848 F.2d 655,

26 657 (5th Cir. 1988) (judicial review is appropriate to consider a challenge to the Secretary’s

27 authority to place temporal limits on processing non-preference visa applications).

28

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1

Limited reviewability of a consular officer’s wrongful failure to advise an alien about

2 waiver admissibility is further supported by the enabling statute. Section 1182(d)(3)(A) states that

3 a consular official “may” grant a visa waiver “after approval by the Attorney General of a

4 recommendation by the Secretary of State or by the consular official that the alien be admitted

5 temporarily despite his inadmissibility.” 8 U.S.C. 1182(d)(3)(A). Section 1182(d)(3)(B), on the

6 other hand, states that the Secretary of State, after consultation with the Secretary of Homeland

7 Security, or vice-versa, “may determine in such Secretary’s sole unreviewable discretion that

8 subsections (a)(3)(B) of this section shall not apply . . .” (emphasis added). A general guide to

9 statutory construction states that the mention of one thing implies the exclusion of another,

10 expressio unius est exclusio alterius. 73 Am.Jur.2d, Statutes, Section 211, at 405 (1974). Here,

11 the governing statute states that the consular official “may” grant a waiver, whereas, it is in the

12 Secretary’s “sole unreviewable discretion” to decide whether the reasons for denying a visa should

13 even apply. Accordingly, a consular officer’s failure to advise an alien of her right to at least

14 apply for a visa waiver (as the regulation mandates) is not solely within the consul’s discretion and

15 is reviewable by courts.

16

During trial, the Court asked Sean Cooper, the Chief of the Coordination Division in the

17 Visa Office of the Bureau of Consular Affairs at the State Department, about the waiver procedure:

18

Court: Does the applicant . . . get told there’s such a procedure and

they can apply for a waiver, or is it just done totally in-house as a

19

secret process? How does it work?

20

Witness: Normally, the alien would be informed if the

inadmissibility has a waiver relief. So they could then choose to try

21

to say, “Well, I’d like to do that.” But it is then forwarded for

consideration with an endorsement from the Department of State.

22

So the Consular Officer would say, “I support this,” or “I don’t

support this for these reasons.”

23

Because the consular officer unlawfully failed in his duty to advise Dr. Ibrahim of her right to at

24

least apply for a waiver, the doctrine of consular nonreviewability does not apply. Accordingly,

25

this order holds that Dr. Ibrahim must be given an opportunity to apply for a waiver. This order,

26

of course, does not insist that the government grant a waiver. Once acted on, the agency’s

27

decision whether (or not) to grant a waiver would presumably be unreviewable.

28

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1

OTHER CHALLENGES

2

Although plaintiff’s counsel raise other constitutional challenges, those arguments, even if

3 successful, would not lead to any greater relief than already ordered. It must be emphasized that

4 the original cause of the adverse action was human error. That error was not motivated by race,

5 religion, or ethnicity. While it is plausible that Dr. Ibrahim was interviewed in the first place on

6 account of her roots and religion, this order does not so find, for it is unnecessary to reach the

7 point, given that the only concrete adverse action to Dr. Ibrahim came as a result of a mistake by

8 Agent Kelley in filling out a form and from later, classified information that separately led to the

9 unreviewable visa denials.

10

If and when reviewable, concrete adverse action is taken by our government against Dr.

11 Ibrahim, then we may have an occasion to adjudicate the extent to which she should be informed,

12 at least generally, of the classified and under seal grounds for the action against her so as to give

13 her an opportunity to rebut the derogatory information. The visa denial itself is not reviewable.

14 Until reviewable, concrete adverse action occurs, there is no occasion to litigate the extent to

15 which any information about her, derogatory or not, should reside in the government’s databases

16 — save and except for the more limited relief provided above.

17

PUBLIC ACCESS TO OUR COURTS

18

The next part of this order addresses the frustrating efforts by the government to shield its

19 actions from public view and the extent to which this order should be made public. For the time

20 being, all of the order shall remain secret (save and except for a brief public summary) until the

21 court of appeals can rule on this Court’s view that the entire order be opened to public view.

22

One of the many gifts left for us by Circuit Judge Betty Fletcher was her dedication to

23 protecting the common law right of the public and the press to examine the work of our courts. In

24 a decision upholding such access, Judge Fletcher wrote of the federal right to inspect and copy

25 public records and documents. San Jose Mercury News, Inc. v. U.S. Dist. Ct.–Northern Dist., 187

26 F.3d 1096, 1102 (9th Cir. 1999). Judge Fletcher later wrote that “[i]n this circuit, we start with a

27 strong presumption in favor of access to court records.” Foltz v. State Farm Mutual Automobile

28

35

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United States District Court For the Northern District of California

1 Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). Her decision instructed courts to “consider all

2 relevant factors, including: the public interest in understanding the judicial process.”

3

Thanks to Judge Fletcher, the public has a well-recognized right to access its courts.

4 “[Judicial] records are public documents almost by definition, and the public is entitled to access

5 by default.” This presumption is strong because the public has an interest in “understanding the

6 judicial process” as well as “keeping a watchful eye on the workings of public agencies.” Public

7 oversight of courts and therefore public access to judicial operation is foundational to the

8 functioning of government. Without such oversight, the government can become an instrument for

9 injustice. Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178, 1180 (9th Cir. 2006).

10

In stubborn resistence to letting the public and press see the details of this case, the

11 government has made numerous motions to dismiss on various grounds, including an overbroad

12 complete dismissal request based on state secrets. When it could not win an outright dismissal, it

13 tried to close the trial from public view via invocation of a statutory privilege for “sensitive

14 security information” (“SSI”), 49 U.S.C. 114(r) and 49 C.F.R. 1520.5, and the “law enforcement

15 privilege.” Roviaro v. United States, 353 U.S. 53, 59 (1957). At least ten times the trial was

16 interrupted and the public asked to leave so that such evidence could be presented.

17

This order recognizes the legitimacy of protecting SSI and law enforcement investigative

18 information. On the other hand, the statute itself recognizes that information more than three years

19 old should ordinarily be deemed too stale to protect — which is the case here. See Department of

20 Homeland Security Appropriations Act of 2007, Pub. L. No. 109–295, Section 525(d), 120 Stat.

21 1355, 1382 (Oct. 4, 2006).

22

Significantly, virtually all of the SSI about the workings of the TSDB and its allied

23 complex of databases, including the no-fly list, is publicly known. For example, after a 2006 GAO

24 report revealed that half of the tens of thousands of potential matches sent to the TSDB between

25 December 2003 to January 2006 were misidentifications, the Department of Justice published a

26 September 2007 audit report which revealed astonishing results (TX 102):

27

•

Of the 105 records reviewed in the audit, 38% contained errors or inconsistencies

that were not identified through the TSC’s “quality assurance efforts.”

28

•

Around 2007, the TSDB increased by average of over 20,000 records per month.

36

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United States District Court For the Northern District of California

1

•

When the TSC began its review of the no-fly list in July 2006, there were 71,872

2

records. When the review was completed in January 2007, the government

determined that the no-fly list should be reduced to 34,230 records.

3

•

TSC redress complaint data showed that 13% of the 388 redress inquiries closed

4

between January 2005 and February 2007 were for complainants who were

misidentified and were not an actual watchlist subject. A remarkable 20%

5

necessitated removing the complainant’s identity from the watchlist. The TSC

determined that 45% of the watchlist records related to redress complaints were

6

inaccurate, incomplete, not current, or incorrectly included.

7

An October 2007 GAO report detailed the process by which “encounters” with individuals

8 on a terrorist watchlist are resolved, discussing the “reasonable suspicion” standard, described the

9 nomination process to the TSC’s watchlists, and charted the rapid growth of watchlist records.

10 This 84-page report describes a number of watchlists and even indicates vulnerabilities with the

11 system (TX 238).

12

A March 2010 congressional hearing involved testimony and statements from government

13 officials, including the Director of the TSC, Timothy J. Healy, wherein the TSDB, CLASS, TECS,

14 no-fly and selectee lists were discussed in some detail (TX 250). See Sharing and Analyzing

15 Information to Prevent Terrorism, 111th Cong. 116 (2010). A May 2012 GAO report addressed

16 weaknesses in the watchlist nomination process exposed in the wake of the 2009 attempted attack

17 (TX 251).

18

In short, public release of this entire order will reveal very little, if any, information about

19 the workings of our watchlists not already in the public domain. Public release would reveal no

20 classified information whatsoever.

21

This order has been drafted so as to address all issues without revealing any classified

22 information. With respect to SSI and law enforcement information, this order holds that the

23 information revealed herein is too stale to warrant protection from public view. See Section

24 525(a)(2), 120 Stat. 1355, 1382. Therefore, this entire order will be made public. This aspect of

25 the order, however, will be STAYED UNTIL NOON ON APRIL 15, 2014, in order to give defendants

26 an opportunity to seek a further stay thereof from the court of appeals; meanwhile, the entire order

27 shall be UNDER SEAL (and a short summary will meanwhile be released by the judge for public

28

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United States District Court For the Northern District of California

1 view). Barring an order from higher authorities, this entire order will be made public at NOON ON

2 APRIL 15, 2014.

3

CONCLUSION

4

The following relief is hereby ordered:

5

A. The government shall search and trace all of its terrorist watchlists and records,

6 including the TSDB, TIDE, KSTF, CLASS, TECS, IBIS, TUSCAN, TACTICS, and the no-fly and

7 selectee lists, for entries identifying Dr. Ibrahim. The government shall remove all references to

8 the mistaken designations by Agent Kelley in 2004 and/or add a correction in the same paragraph

9 that said designations were erroneous and should not be relied upon for any purpose. Declarations

10 signed under oath by appropriate government officials shall be filed no later than NOON ON APRIL

11 15, 2014. The declarations shall certify that the government has searched, cleansed, and/or

12 corrected in the same paragraph all entries identifying Dr. Ibrahim and the mistaken 2004

13 designations. Each declaration shall specifically detail the steps and actions taken with respect to

14 each watchlist.

15

B. The government must inform Dr. Ibrahim of the specific subsection of Section

16 212(a)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(3)(B), that rendered her

17 ineligible for a visa in 2009 and 2013.

18

C. The government must inform Dr. Ibrahim that she is no longer on the no-fly list and

19 has not been on it since 2005.

20

D. The government must inform Dr. Ibrahim that she is eligible to at least apply for a

21 discretionary waiver under 8 U.S.C. 1182(d) and 22 C.F.R. 41.121(b)(1).

22

E. All of the foregoing must be done by APRIL 15, 2014.

23

24

IT IS SO ORDERED.

25

26 Dated: January 14, 2014. 27

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

28

38

 
 1

2

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

8 FOR THE NORTHERN DISTRICT OF CALIFORNIA
9

10

United States District Court For the Northern District of California

11 RAHINAH IBRAHIM,

No. C 06-00545 WHA

12

Plaintiff,

13

v.

14 DEPARTMENT OF HOMELAND 15 SECURITY, et al.,

16

Defendants. /

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND EXPENSES

17

18

INTRODUCTION

19

All of us who practice or serve in this district should be proud that we still have counsel

20 willing and able to undertake pro bono representation of someone like our plaintiff here,

21 especially when it requires standing up to our national government and its large litigation

22 resources. Not so long ago, this spirit flourished within our district. More recently, however,

23 pro bono representation seems to have taken second seat to money bono. But these lawyers from

24 plaintiff — Marwa Elzankaly, Kevin Hammon, Ruby Kazi, James McManis, Jennifer Murakami,

25 Christine Peek, Elizabeth Pipkin, and the firm of McManis Faulkner — deserve recognition for

26 the work they have contributed to this long-fought case. The Court hereby extends its

27 compliments.

28

United States District Court For the Northern District of California

1

This, however, does not translate to approving the massive award they seek under the

2 Equal Access to Justice Act. The EAJA is restricted in important ways that we must recognize

3 and honor. And, plaintiff’s counsel may not collect twice for work already compensated in prior

4 partial settlements, for inefficient or duplicative work, or for work on issues for which the

5 government has shown its position to be substantially justified and unrelated to the claim Dr.

6 Ibrahim obtained relief under.

7

Regrettably, this will be a long order, given the broad scope of the fee petition, and must

8 lead to the very type of satellite litigation our Supreme Court cautioned against. Hensley v.

9 Eckerhart, 461 U.S. 424, 437 (1983). The essence of this order is that counsel are entitled to

10 recover for their work and expenses on procedural due process, substantive due process,

11 Administrative Procedure Act claims and post-2012 remand standing issues, and no more.

12 This cut back is not intended as a criticism of counsel and their work herein but simply reflects

13 the limits of the law itself. This order resolves the entitlement issue. A companion order sets

14 forth a special-master procedure to determine the amount.

15

STATEMENT

16

This action arises out of a wrongful listing of plaintiff on the no-fly list. The facts are all

17 laid out in findings of fact and conclusions of law after a bench trial (Dkt. Nos. 682, 701-1).

18

In January 2006, plaintiff commenced this civil action against multiple state and federal

19 agencies alleging Section 1983 claims, state law tort claims, and several constitutional claims.

20 An August 2006 order dismissed her claims against the federal defendants based on lack of

21 subject-matter jurisdiction and dismissed her claims against a TSA employee, the airline, and the

22 federal agency defendants (Dkt. No. 101). Our court of appeals affirmed in part, reversed in

23 part, and remanded, holding that the district court had original subject-matter jurisdiction over

24 her claim for injunctive relief regarding placement of her name on the no-fly list. The court of

25 appeals agreed that the district court, however, lacked subject-matter jurisdiction over her claim

26 for injunctive relief regarding the government’s policies and procedures implementing the no-fly

27 list, that the federal agency and airline actions were not state actions under Section 1983, and

28 that the tort claims against the federal officials in their official capacities and airline defendants

2

United States District Court For the Northern District of California

1 were precluded. Our court of appeals further held that specific jurisdiction was available for the

2 claims against the TSA employee, who was sued in his individual capacity. Ibrahim v. Dep’t of

3 Homeland Sec., 538 F.3d 1250, 1254–56 n.9 (9th Cir. 2008) (“Ibrahim I”).

4

On remand, plaintiff filed the operative second amended complaint. Cash settlements

5 were subsequently entered with the non-federal defendants (Dkt. No. 328). Plaintiff’s counsel

6 were paid $195,431.35 for attorney’s fees and costs pursuant to the settlement (McManis

7 Decl. ¶ 3).

8

A motion to dismiss for lack of standing was then made and granted based on the

9 distinction between damages claims for past injury while plaintiff had been in the United States

10 versus prospective relief sought after plaintiff had voluntarily left the United States (Dkt. No.

11 197). Our court of appeals, while affirming in part, reversed (over a dissent) as to standing for

12 prospective relief by holding that even a nonimmigrant alien who had voluntarily left the United

13 States nonetheless had standing to litigate federal constitutional claims in district court in the

14 United States as long as the alien had a “substantial voluntary connection” to the United States.

15 Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983, 993–94 (9th Cir. 2012) (“Ibrahim II”).

16 The decision was entered on February 8, 2012. The government did not seek review by the

17 United States Supreme Court.

18

A July 2012 mandate taxed $437.60 in costs against defendants pursuant to the appeal

19 (Dkt. Nos. 355, 356). On remand, the government then again moved to dismiss and the motion

20 was denied. The parties next became embroiled in discovery disputes involving the state secrets

21 privilege, the law enforcement privilege, and so-called “sensitive security information” (“SSI”),

22 49 U.S.C. 114(r) and 49 C.F.R. 1520.5. A pair of orders dated April 19, 2013, granted in part

23 and denied in part plaintiff’s motion to compel (Dkt. Nos. 462, 464). Subsequent rounds of

24 contentious discovery motions required further resolution. The government’s assertions of the

25 state secrets privilege were upheld, while its assertions of other privileges were upheld in part

26 and overruled in part (Dkt. Nos. 539, 548).

27

A number of expert disclosure and discovery disputes were then raised. Notably,

28 plaintiff’s expert report failed to identify what materials were considered in forming the opinions

3

United States District Court For the Northern District of California

1 therein and plaintiff refused to produce interview notes. A pair of orders permitted plaintiff to

2 revise her expert report, allowed the government to take a second one-day deposition of the

3 expert, and ordered the expert to produce interview notes he considered in forming his opinions

4 at least 24 hours prior to his second deposition, once a proper subpoena was served (Dkt. Nos.

5 580, 585).

6

After oral argument in October 2013, the government’s motion for summary judgment

7 was granted in limited part but mostly denied (Dkt. No. 592). The “exchange of information”

8 claim based on the First Amendment was dismissed. Plaintiff’s claims based on procedural and

9 substantive due process, equal protection, and First Amendment rights of expressive association

10 and retaliation proceeded to trial. Lack of standing was raised again by the government and

11 denied.

12

A final pre-trial conference was held in November 2013. A number of motions in limine

13 were heard and resolved, including the government’s motion to exclude plaintiff from calling the

14 Attorney General (Eric Holder) and the Director of National Intelligence (James Clapper).

15

The bench trial began in December 2013. On the first day of trial, before opening

16 statements, plaintiff’s counsel reported that plaintiff’s daughter — a United States citizen and a

17 witness disclosed on plaintiff’s witness list — was not permitted to board her flight from Kuala

18 Lumpur to attend trial. Immediately after trial, an evidentiary hearing regarding plaintiff’s

19 daughter’s travel difficulties was held. Upon request, limited findings of fact were made.

20

On January 14, 2014, findings of fact, conclusions of law, and order for relief was

21 entered (Dkt. Nos. 682, 701-1). Judgment was entered in favor of plaintiff to the extent stated in

22 the January 14 order, but against plaintiff on all other claims (Dkt. No. 684). Notably, the order

23 found that Dr. Rahinah Ibrahim was entitled to certain post-deprivation remedies and because the

24 government’s administrative remedies fell short of that relief, she was deprived due process of

25 law. In addition, limited relief was granted to provide Dr. Ibrahim the specific subsection of

26 Section 212(a)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(3)(B), that

27 rendered her ineligible for a visa in 2009 and 2013, and to inform her she was eligible to at least

28 apply for a discretionary waiver. This limited relief was not specifically raised by plaintiff, but

4

United States District Court For the Northern District of California

1 instead provided by the Court based on a decision by our court of appeals and statutory

2 interpretation. Din v. Kerry, 718 F.3d 856, 863 (9th Cir. 2013). The government was required to

3 provide the relief ordered by April 15, 2014.

4

The order also stated (Dkt. No. 682 at 35):

5

OTHER CHALLENGES

6

Although plaintiff’s counsel raise other constitutional challenges,

those arguments, even if successful, would not lead to any greater

7

relief than already ordered. It must be emphasized that the original

cause of the adverse action was human error. That error was not

8

motivated by race, religion, or ethnicity. While it is plausible that

Dr. Ibrahim was interviewed in the first place on account of her

9

roots and religion, this order does not so find, for it is unnecessary

to reach the point, given that the only concrete adverse action to

10

Dr. Ibrahim came as a result of a mistake by Agent Kelley in

filling out a form and from later, classified information that

11

separately led to the unreviewable visa denials.

12 The order thus did not reach plaintiff’s equal protection clause, Administrative Procedure Act,

13 substantive due process, and First Amendment claims. To be clear, she did not outright lose on

14 these claims, she just did not prevail.

15

On January 28, plaintiff’s counsel filed a motion for an award of attorney’s fees and

16 expenses, seeking a whopping $3.67 million in fees and $294,000 in expenses (Dkt. No. 694).

17 Four supporting declarations were filed. Specifically, the declaration of Attorney Christine Peek

18 appended, inter alia, a 172-page spreadsheet (listing chronologically tasks completed and fees

19 sought) and a one-page “summary of additional expenses” (Peek Decl. Exhs. A, B). Invoices

20 and a spreadsheet specifically itemizing the expenses sought were not submitted.

21 The declaration of Attorney James McManis set forth attorney hourly rates and the experience of

22 each attorney. The declaration of Attorney Allen J. Ruby of Skadden, Arps, Slate, Meagher &

23 Flom LLP, attested to the reputation, rates, and experience of plaintiff’s counsel. The

24 declaration of Dr. Rahinah Ibrahim stated that she retained McManis Faulkner in June 2005 and

25 they were the only firm willing to take her case on a pro bono basis (Ibrahim Decl. ¶¶ 2, 3).

26 None of the declarations contained a statement that counsel met and conferred pursuant to Local

27 Rule 54-5 before filing the motion. The same day, plaintiff’s counsel filed a bill of costs seeking

28 approximately $58,000 (Dkt. No. 693). They then submitted supplements to their bill more than

5

United States District Court For the Northern District of California

1 a week later (Dkt. Nos. 704–707). On February 21, the Clerk taxed $53,699.13 against

2 defendants (Dkt. No. 713).

3

After the government filed its opposition, including a statement that plaintiff’s counsel

4 should — at most — be entitled to approximately $286,000 in fees (not $3.67 million),

5 plaintiff’s counsel submitted a reply declaration, appending 228-pages of exhibits supporting

6 their requested expenses (Dkt. No. 712). Upon request, a February 26 order struck counsel’s

7 reply declaration due to the unfairness of counsel submitting voluminous spreadsheets they could

8 have and should have submitted with their opening motion (Dkt. No. 715).

9

On February 28, the government filed a motion for review of the Clerk’s taxation of

10 costs. That motion will be addressed in a separate order. This order covers fees and expenses

11 other than the Clerk’s taxation of costs.

12

On March 6, the Court noted a number of line items of questionable merit in counsel’s

13 application and allowed supplemental briefing (Dkt. No. 718). On March 13, counsel submitted

14 a spreadsheet showing $462,470 in “unclaimed fees,” meaning fees excluded from their fee

15 application. Counsel also indicated that 385 hours were excluded because several attorneys had

16 minor roles in the case (Pipkin Decl. ¶¶ 2–4, Exh. A). This order follows full briefing and oral

17 argument held on March 25, and review, as requested, of the declarations filed pursuant to the

18 injunction as of April 15 (Dkt. No. 737).

19

ANALYSIS

20

1.

VIOLATION OF OUR DISTRICT’S RULES.

21

In connection with the motion, plaintiff’s counsel violated our district’s rules. Plaintiff’s

22 counsel failed to meet-and-confer with the opponent prior to filing this motion

23 (Freeborne Decl. ¶ 2, Reply 15). This was a violation of our district’s Local Rule 54-5(a) and

24 (b)(1) which state:

25

Counsel for the respective parties must meet and confer for the

purpose of resolving all disputed issues relating to attorney’s fees

26

before making a motion for award of attorney’s fees.

27

*

*

*

28

6

1

Unless otherwise ordered, the motion for attorney fees must be

supported by declarations or affidavits containing the following

2

information:

United States District Court For the Northern District of California

3

(1) A statement that counsel have met and conferred for the

purpose of attempting to resolve any disputes with respect to the

4

motion or a statement that no conference was held, with

certification that the applying attorney made a good faith effort to

5

arrange such a conference, setting forth the reason the conference

was not held; and . . . .

6

In counsel’s reply brief, counsel offered no acceptable reason for their failure to comply with the

7

local rules before filing the motion. The reply stated:

8

Although plaintiff did not confer with defendants directly before

9

filing her motion, plaintiff understood defendants’ position on fees

due to conversations with Judge Corley before the trial, and it was

10

clear that a motion was necessary to resolve the dispute.

Defendants’ opposition demonstrates the futility of [a] meet and

11

confer to resolve the instant motion; defendants have suffered no

prejudice.

12

(Reply 15). This was another violation. It was wrong for counsel to refer to “anything that

13

happened or was said” or “any position taken” during a confidential settlement conference.

14

See ADR Local Rule 7-5(a). In any event, so much has occurred since that settlement

15

conference that it was wrong to think the government, having lost part of the trial, would still

16

have the same view.*

17

Failing to comply with the local rules is a permissible ground for the denial of a motion

18

for attorney’s fees. Johannson v. Wachovia Mortgage, FSB, No. C 11-02822 WHA, 2012 WL

19

2793204, at *1 (N.D. Cal. July 9, 2012) (Judge William Alsup); Herson v. City of Richmond,

20

No. C 09-02516 PJH LB, 2012 WL 1189613, at *5 (N.D. Cal. Mar. 9, 2012) (Magistrate Judge

21

Laurel Beeler), report and recommendation adopted, 2012 WL 1188898, at *1 (N.D. Cal. Apr. 6,

22

2012) (Judge Phyllis J. Hamilton).

23

It is a close call whether or not to deny counsel an award for this failure to follow our

24

rules. Our rule requirement is meant to head off the very “satellite litigation” problem that

25

26

27

* At oral argument, counsel’s only explanation was that these particular defense attorneys did not have the authority to agree to a number. Defense counsel explained that pursuant to regulation, an amount

28

of fees this high must be authorized by the Deputy Attorney General (March 25 Hr’g. Tr. 39:7–15). Plaintiff’s counsel cannot unilaterally ignore our local rules requiring a meet-and-confer just because

specific defense attorneys lack the authority to authorize payment beyond a threshold sum.

7

United States District Court For the Northern District of California

1 worried the United States Supreme Court in Hensley, 461 U.S. at 437. The problem is

2 exacerbated by a fee petition that is grossly overbroad, even to the point of seeking double

3 recovery for items previously settled and on which fees were already recovered. A judge would

4 be justified in denying the petition on these grounds.

5

Taking into account the purpose of the Equal Access to Justice Act, however, this order

6 will allow the application to go forward provided that plaintiff’s counsel shall pay 75% of the

7 special-master’s fees (rather than 50%) in connection with the fees-and-expenses procedure set

8 forth in a companion order. The government shall pay the remainder. This allocation is the

9 starting point and may be adjusted to reflect factors set forth in FRCP 53(g)(3).

10

2.

EQUAL ACCESS TO JUSTICE ACT.

11

Plaintiff’s counsel argue that they are entitled to recover attorney’s fees and expenses

12 because (1) the federal defendants’ position was not substantially justified and (2) the federal

13 defendants’ acted in bad faith. Section 2412 of the Equal Access to Justice Act, 28 U.S.C. 2412,

14 states in relevant part (emphasis added):

15

(a)(1) Except as otherwise specifically provided by statute, a

judgment for costs, as enumerated in section 1920 of this title, but

16

not including the fees and expenses of attorneys, may be awarded to

the prevailing party in any civil action brought by or against the

17

United States or any agency or any official of the United States

acting in his or her official capacity in any court having jurisdiction

18

of such action. A judgment for costs when taxed against the United

States shall, in an amount established by statute, court rule, or

19

order, be limited to reimbursing in whole or in part the prevailing

party for the costs incurred by such party in the litigation.

20

*

*

*

21

(b) Unless expressly prohibited by statute, a court may award

22

reasonable fees and expenses of attorneys, in addition to the costs

which may be awarded pursuant to subsection (a), to the prevailing

23

party in any civil action brought by or against the United States or

any agency or any official of the United States acting in his or her

24

official capacity in any court having jurisdiction of such action.

The United States shall be liable for such fees and expenses to the

25

same extent that any other party would be liable under the common

law or under the terms of any statute which specifically provides for

26

such an award.

27

*

*

*

28

8

United States District Court For the Northern District of California

1

(d)(1)(A) Except as otherwise specifically provided by statute, a

court shall award to a prevailing party other than the United States

2

fees and other expenses, in addition to any costs awarded pursuant

to subsection (a), incurred by that party in any civil action (other

3

than cases sounding in tort), including proceedings for judicial

review of agency action, brought by or against the United States in

4

any court having jurisdiction of that action, unless the court finds

that the position of the United States was substantially justified or

5

that special circumstances make an award unjust.

6 This order will first address the arguments under Section 2412(d)(1)(A) for substantial

7 justification and then address the arguments under Section 2412(a)(1) for common law bad faith.

8 This order will then address counsel’s enhancement request, discovery sanctions argument, and

9 expenses sought.

10

Section 2412(d) sets forth a number of definitions. Party includes, inter alia, “an

11 individual whose net worth did not exceed $2,000,000 at the time the civil action was filed.”

12 28 U.S.C. 2412(d)(2)(B). Dr. Rahinah Ibrahim qualifies (Ibrahim Decl. ¶ 5). This order notes

13 that the government has not contested her standing to move for attorney’s fees and has not argued

14 that she does not qualify as a “party.” Our court of appeals previously found that Dr. Ibrahim had

15 established a “substantial voluntary connection” with the United States to assert claims under the

16 First and Fifth Amendments and the Clerk taxed her appeal costs in 2012. Ibrahim v. Dep’t of

17 Homeland Sec., 669 F.3d 983, 997 (9th Cir. 2012); Ibrahim v. Dep’t of Homeland Sec.,

18 No. 3:06-cv-00545-WHA (9th Cir. 2012) (Dkt. No. 356). Moreover, asylum applicants have been

19 found to be entitled to fees. Nadarajah v. Holder, 569 F.3d 906, 909, 923, 926 (9th Cir. 2009).

20

“Fees and other expenses” includes:

21

reasonable attorney fees . . . except that . . . attorney fees shall not

be awarded in excess of $125 per hour unless the court determines

22

that an increase in the cost of living or a special factor, such as the

limited availability of qualified attorneys for the proceedings

23

involved, justifies a higher fee.

24 28 U.S.C. 2412(d)(2)(A), meaning attorney’s fees shall not exceed $125 per hour, unless a

25 cost-of-living or special-factor increase is justified.

26

“Position of the United States” means:

27

in addition to the position taken by the United States in the civil

action, the action or failure to act by the agency upon which the

28

civil action is based; except that fees and expenses may not be

awarded to a party for any portion of the litigation in which the

9

United States District Court For the Northern District of California

1

party has unreasonably protracted the proceedings.

2 28 U.S.C. 2412(d)(2)(D) (emphasis added), meaning the position of the United States extends, to

3 the extent reviewable, to Agent Kelley’s error, the denials of Dr. Ibrahim’s visa applications in

4 2009 and 2013, and the government’s Traveler Redress Inquiry Program (“TRIP”) response.

5

In sum, the Supreme Court has stated:

6

Thus, eligibility for a fee award in any civil action requires: (1) that

the claimant be a “prevailing party”; (2) that the Government’s

7

position was not “substantially justified”; (3) that no “special

circumstances make an award unjust”; and, (4) pursuant to 28

8

U.S.C. § 2412(d)(1)(B), that any fee application be submitted to the

court within 30 days of final judgment in the action and be

9

supported by an itemized statement.

10 Comm’r, I.N.S. v. Jean, 496 U.S. 154, 158, 162 (1990). “The government bears the burden of

11 demonstrating substantial justification.” Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir.

12 2005).

13

A. “Prevailing Party” and Timeliness.

14

Our court of appeals has held that “a ‘prevailing party’ under the EAJA must be one who

15 has gained by judgment or consent decree a ‘material alteration of the legal relationship of the

16 parties.’” Perez-Arellano v. Smith, 279 F.3d 791, 794 (9th Cir. 2002) (citing Buckhannon Bd. &

17 Care Home, Inc. v. W. Virginia Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001)).

18 Based on the findings of fact, conclusions of law, and order for relief, and judgment entered on

19 January 14, 2014, following a bench trial, this order finds that plaintiff qualifies as a prevailing

20 party under the Equal Access to Justice Act. Li v. Keisler, 505 F.3d 913, 917 (9th Cir. 2007).

21 She obtained some relief pursuant to the January 2014 order and the government’s declarations

22 submitted in April 2014 (Dkt. No. 737).

23

Plaintiff’s counsel filed their fee application on January 28, within thirty days of the final

24 judgment. The EAJA extends the time to file a fee application from fourteen days to thirty days.

25 29 U.S.C. 2412(d)(1)(A), FRCP 54(d)(2)(B). Counsel’s application included a spreadsheet listing

26 chronologically the tasks upon which fees were sought. Their spreadsheet, however, did not

27 group tasks by project and identify the claim(s) or issue(s) for which the tasks pertained.

28

10

United States District Court For the Northern District of California

1 This makes it difficult to examine some of the fees sought in relation to the degree of success

2 obtained. Hensley, 461 U.S. at 439.

3

B. “Substantially Justified” and “Special Circumstances.”

4

The next inquiry is whether the government has satisfied its burden of showing that its

5 position was substantially justified. On the one hand, “the EAJA-like other fee-shifting statutes

6 favors treating a case as an inclusive whole, rather than as atomized line-items.” Comm’r, 496

7 U.S. at 161. On the other hand, our court of appeals has stated:

8

Substantial justification under the [Equal Access to Justice Act]

means that the government’s position must have a reasonable basis

9

in law and fact. The government’s position must be substantially

justified at each stage of the proceedings.

10

Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008). The government must show that its

11

position was substantially justified at each stage of the proceedings in order to avoid an award of

12

EAJA fees. Li, 505 F.3d at 918.

13

The Supreme Court has stated that substantial justification “is not ‘justified to a high

14

degree,’ but rather ‘justified in substance or in the main’ — that is, justified to a degree that could

15

satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (emphasis added).

16

“Put another way, substantially justified means there is a dispute over which ‘reasonable minds

17

could differ.’” Gonzales v. Free Speech Coal., 408 F.3d 613, 618 (9th Cir. 2005).

18

That the government lost (on some issues) does not raise a presumption that its position was not

19

substantially justified. Edwards v. McMahon, 834 F.2d 796, 802–03 (9th Cir. 1987).

20

Fees may be denied when the litigation involves questions of first impression, but “whether an

21

issue is one of first impression is but one factor to be considered.” United States v. Marolf, 277

22

F.3d 1156, 1163 (9th Cir. 2002). Our court of appeals has stated:

23

The inquiry into the existence of substantial justification therefore

24

must focus on two questions: first, whether the government was

substantially justified in taking its original action; and, second,

25

whether the government was substantially justified in defending the

validity of the action in court.

26

Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988).

27

When determining a proper fee award, the Supreme Court has set forth a two-step

28

framework: (1) did the plaintiff fail to prevail on claims that were unrelated to the claims on

11

United States District Court For the Northern District of California

1 which she succeeded, and (2) did the plaintiff achieve a level of success that makes the hours

2 reasonably expended a satisfactory basis for making a fee award? Hensley, 461 U.S. at 440.

3

[Related claims will involve a common core of facts or will be

based on related legal theories . . . . Thus, the test is whether relief

4

sought on the unsuccessful claim is intended to remedy a course of

conduct entirely distinct and separate from the course of conduct

5

that gave rise to the injury upon which the relief granted is

premised.

6

Edema v. Weston Tucson Hotel, 53 F.3d 1484, 1499 (9th Cir. 1995) (quoting Thorns v. City of El

7

Segundo, 802 F.2d 1131, 1141 (9th Cir. 1986)). Courts consider “whether the unsuccessful

8

claims were presented separately, whether testimony on the successful and unsuccessful claims

9

overlapped, and whether the evidence concerning one issue was material and relevant to the other

10

issues.” Thorns, 802 F.2d at 1141. In Schwarz v. Secy. of Health & Human Serve., 73 F.3d 895,

11

903–04 (9th Cir. 1995), our court of appeals found no abuse of discretion in finding the

12

alternative legal theories not related for “the unsuccessful claims did not involve the same course

13

of conduct as her successful claim and the efforts expended on the unsuccessful claims did not

14

contribute to her prevailing on the successful claim.”

15

Turning to the facts of our case, plaintiff’s counsel recite a long list of alleged wrongs by

16

the government. For example, they argue that Dr. Ibrahim was told she was removed from the

17

no-fly list in 2005 but she has never been permitted to return to the United States. Even though

18

our court of appeals held that Dr. Ibrahim had standing, the government repeatedly argued

19

thereafter that Dr. Ibrahim lacked standing via three motions to dismiss, a motion for summary

20

judgment, opening and closing statements at trial, and post-trial briefing. The government’s

21

privilege assertions, in counsel’s view, also unnecessarily hampered Dr. Ibrahim’s investigative

22

efforts.

23

The government states a number of responses, including that it was appropriate to renew

24

their standing position post-remand because Dr. Ibrahim’s status in the Terrorist Screening

25

Database was only revealed during discovery and Dr. Ibrahim could not rely on mere allegations

26

of standing at summary judgment and trial. The government also argues that plaintiff’s counsel

27

failed on numerous discovery motions and the government never withheld information from

28

counsel based on SSI (only plaintiff herself who was never cleared to receive SSI or classified

12

United States District Court For the Northern District of California

1 information). Finally, the government argues that fees should be denied because this action

2 involved difficult issues of first impression.

3

This order finds that plaintiff’s counsel are entitled to at least some fees and expenses

4 under the EAJA, but substantially less than requested, meaning not the whopping $3.67 million of

5 fees and $294,000 in expenses sought. Plaintiff did not prevail on all of her claims and the

6 government’s arguments at certain stages, even on those it lost, were not so unreasonable that

7 complete fee-shifting is warranted. In actions involving different unrelated claims for relief and

8 theories, counsel’s work on unsuccessful unrelated claims should not be entirely recovered.

9 Hensley, 461 U.S. at 434–35. District courts have discretion in determining the amount of a fee

10 award. Id. at 437. This order also recognizes the novelty of the issues involved, the importance

11 of protecting classified information when national security and counterterrorism efforts are

12 implicated, and that reasonable minds could have differed over some (but not all) of the

13 government’s specific strategies. This order will now walk through the details.

14

In terms of pre-litigation conduct, the government’s position was not substantially

15 justified. The original sin — Agent Kelley’s mistake and that he did not learn about his error

16 until his deposition eight years later — was not reasonable. It was this error that led to this train

17 of events whereby Dr. Ibrahim was prevented from boarding her flight, suffered a humiliating

18 arrest and detention, received nothing more than an opaque TRIP response, and reasonably

19 suspected, even if not true, that her troubles returning to the United States were caused by an error

20 propagating through the government’s web of interlocking databases. This order finds that the

21 government’s conduct, in this aspect, under the EAJA was not reasonable.

22

In terms of litigation conduct, the government’s attempt to defend its no-fly error for years

23 was not reasonable. The government’s litigation position, that Dr. Ibrahim who was prevented

24 from boarding her flight, detained and arrested, and unknowing of the cause for her troubles,

25 persistently denied plaintiff the due process to which she was entitled. The government’s defense

26 of such inadequate due process in Dr. Ibrahim’s circumstance — when she was concededly not a

27 threat to national security — was not substantially justified.

28

Furthermore, after our court of appeals held that Dr. Ibrahim had standing and the

13

United States District Court For the Northern District of California

1 government did not seek review from the United States Supreme Court, the government’s

2 stubborn persistence in arguing that Dr. Ibrahim lacked standing was unreasonable. Ibrahim II,

3 669 F.3d at 997. Although the government’s position on standing prior to the appeal was

4 substantially justified, for the government to continue to seek dismissal based on lack of standing

5 in the face of our court of appeal’s decision on this very point was unreasonable.

6

The government’s conduct with regards to Dr. Ibrahim’s visa applications, however, in the

7 context of the EAJA meets the substantial justification test. Even though her applications were

8 denied without mention of the specific subsection(s) of Section 212(a)(3)(B) rendering her

9 ineligible, as required by later law from our court of appeals, and she was never informed that

10 she was eligible to apply for a discretionary waiver, that conduct was not wholly unreasonable at

11 the time. Din, 718 F.3d at 863. Indeed, plaintiff’s counsel never even raised these issues.

12 The Court itself, after raising the issue, ordered limited relief provided by the law. Even though

13 plaintiff’s counsel argue that the government branded Dr. Ibrahim as a “terrorist” for years, the

14 consular officer wrote the word “(Terrorist)” on the visa form beside Section 212(a)(3)(B),

15 entitled “Terrorist activities,” to explain why she was deemed inadmissible.

16

It would be unfair to saddle the government with $3.67 million in fees — or anything

17 close to it — when a number of counsel’s fee requests appear to be associated with claims Dr.

18 Ibrahim did not prevail on (e.g., First Amendment), other proceedings (e.g., United States Court

19 of Appeals District of Columbia Circuit), overstaffing (e.g., fees for four plaintiff’s attorneys

20 conferencing with each other), and non-attorney tasks (e.g., file organization or managing data in

21 CaseMap).

22

When a proceeding is complex, our court of appeals has stated:

23

In such circumstances, an award of fees properly apportioned to

pursuing the stages of the case in which in the government lacked

24

substantial justification — in this instance, the original appeal of the

ALJ’s decision, the district court’s consideration of the procedural

25

errors and fee request on remand, and this appeal — are

appropriate.

26

Corbin v. Apfel, 149 F.3d 1051, 1053 (9th Cir. 1998). Hensley also requires evaluating the extent

27

of success and work completed on various claims when determining a fee award.

28

14

United States District Court For the Northern District of California

1 Here, the spread between the parties’ proposals is stark. Plaintiff’s counsel seek $3,673,215.00 in

2 attorney’s fees and $293,860.18 in expenses. Defendants counter that, at most, $286,586.97 in

3 attorney’s fees should be awarded and counsel’s request for expenses should be reduced (or

4 denied).

5

(1) Procedural Due Process.

6

As stated, this order finds that plaintiff’s counsel are entitled to recover reasonable fees

7 and expenses incurred for work completed on Dr. Ibrahim’s procedural due process claim.

8 Dr. Ibrahim succeeded in showing that the government’s post-deprivation administrative

9 remedies under the TRIP program were inadequate due process. This is the type of action

10 intended to be encouraged by the EAJA.

11

Unfortunately, counsel’s request fails to consistently identify the issues or claims worked

12 upon. For example, counsel seek the following:

13

“Prepare for trial,” 15.8 hours (Nov. 29, 2013) (Dkt. No. 699-1 at

163),

14

“Prepare for trial (prepare expert documents for production,

15

deposition video clips),” 11.6 hours (Nov. 30, 2013) (ibid.),

16

“Prepare for trial and attend trial,” 18.5 hours (Dec. 2, 2013) (id. at

164),

17

“Appear for/attend trial; prepare for trial,” 20.5 hours (Dec. 4,

18

2013) (id. at 165),

19

“Review trial transcripts and exhibits and prepare proposed findings

of fact and conclusions of law,” 14.1 hours (Dec. 12, 2013) (id. at

20

166),

21

“Prepare post-trial briefing,” 14.3 hours (Dec. 12, 2013) (id. at

167), and

22

“Prepare response to proposed findings of fact and conclusions of

23

law,” 14.7 hours (Dec. 18, 2013) (id. at 168).

24 These entries, as well as many others, lack adequate details regarding the claims worked on and

25 whether billing judgment was applied for inefficiencies and overstaffing. Even though plaintiff’s

26 counsel argue that they eliminated unnecessary or duplicative hours and imposed “a general

27 reduction of approximately five percent on all hours calculated,” they nevertheless seek fees for

28 four attorneys attending trial, three attorneys attending the summary judgment hearing, and four

15

United States District Court For the Northern District of California

1 attorneys attending the final pretrial conference (Dkt. No. 699-1 at 154, 159, 164, 165).

2 Plaintiff’s counsel also seek fees for their paralegal attending these hearings.

3

The Supreme Court has stated:

4

A request for attorney’s fees should not result in a second major

litigation. Ideally, of course, litigants will settle the amount of a

5

fee. Where settlement is not possible, the fee applicant bears the

burden of establishing entitlement to an award and documenting

6

the appropriate hours expended and hourly rates. The applicant

should exercise “billing judgment” with respect to hours worked . . .

7

and should maintain billing time records in a manner that will

enable a reviewing court to identify distinct claims.

8

Hensley, 461 U.S. at 437 (emphasis added). Plaintiff’s counsel must revise their submissions

9

(for the special master) to account for the rules discussed in this order, including to account for

10

good billing judgment.

11

On the other hand, counsel may recover reasonable fees and expenses for work done that

12

was inextricably intertwined with the due process issue (subject again to billing judgment

13

reduction). For example, the 7.5 hours sought for the “Deposition of [W]itness Kelley” (Sept. 12,

14

2013) may have covered a number of successful and unsuccessful topics (Dkt. No. 699-1 at 143).

15

Hensley, 461 U.S. at 448. Such work is likely to be inextricably intertwined with the due process

16

issue and, if reasonable, is recoverable. The burden must be on plaintiff’s counsel to establish

17

such a nexus.

18

(2) Other Issues and Claims.

19

This order finds that plaintiff’s counsel are entitled to recover for reasonable fees incurred

20

for work done on the substantive due process and Administrative Procedure Act claims.

21

Plaintiff’s counsel, however, cannot recover for work done on the equal protection clause and

22

First Amendment claims. Those claims were not related to the procedural due process claim

23

(for which she received relief) because they involved different evidence, different theories, and

24

arose from a different alleged course of conduct. Her equal protection and First Amendment

25

claims were based on allegations that she was watchlisted because she was Muslim and that

26

defendants intentionally discriminated against her by placing her in the TSDB in violation of her

27

right to equal protection. Her second expert, Professor Sinner, provided an expert report on these

28

issues and plaintiff’s counsel seek fees for working with Professor Sinner (e.g., $2,160.00 for 4.5

16

United States District Court For the Northern District of California

1 hours spent “Meeting with expert Sinner” (Aug. 26, 2013) and $4,950 for “Deposition of expert

2 Sinner” (Aug. 28, 2013) (Dkt. No. 699-1 at 33, 140)). This evidence did not contribute to her

3 prevailing procedural due process claim.

4

Plaintiff also alleged that her placement in the TSDB infringed on her right to associate

5 with Muslims and her family members and the denial of her visa application in 2009 (and 2013)

6 was in retaliation. She further alleged that her placement in the TSDB in 2009 interfered with her

7 First Amendment right to free speech. She did not prevail on these grounds.

8

It is important to remember that in Hensley, the Supreme Court stated: “Litigants in good

9 faith may raise alternative legal grounds for a desired outcome, and the court’s rejection of or

10 failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what

11 matters.” 461 U.S. 441. The January 2014 order did not reach the substantive due process and

12 Administrative Procedure Act claims — but it is not as if Dr. Ibrahim outright lost on these

13 claims. It is simply that she would not receive additional relief and therefore those issues did not

14 need to be reached. The bottom of it is that her substantive due process allegation that her

15 placement in the TSDB infringed on her liberty interest in travel and property interest in her flight

16 ticket were related to and deeply intertwined with her prevailing procedural due process claim.

17 The government’s position on the substantive due process claim was in this way not substantially

18 justified. Similarly, the Administrative Procedure Act claim that her placement in the TSDB,

19 which included an error, was arbitrary and capricious, is related to the same facts and conduct

20 underlying her procedural due process claims.

21

Nevertheless, to the extent not inextricably intertwined, plaintiff’s counsel cannot recover

22 the entirety of the time spent on tasks involving prevailing and non-prevailing claims.

23 For example, plaintiff’s counsel seek 16.5 hours for “Prepar[ing] proposed findings of fact and

24 conclusions of law,” 14.3 hours for “Prepar[ing] post-trial briefing,” 8.9 hours for “Prepar[ing]

25 post-trial briefing,” and 8.5 hours for “Prepar[ing] post-trial briefing” (id. at 167). If only a

26 portion of this time was spent on the procedural due process, substantive due process, and

27 administrative procedure act issues and other portions were spent on non-prevailing unrelated

28 issues, counsel should separate out the time.

17

United States District Court For the Northern District of California

1

The government proposes a 75% reduction of counsel’s recoverable fees. If the parties

2 agree to use this adjustment, this order does not preclude them from doing so. Otherwise, the

3 special master will rule on the parties’ disputes regarding specific line items. This order does not

4 mandate the 75% reduction.

5

(3) Visa Issues.

6

This order finds that plaintiff’s counsel cannot recover fees for work done regarding

7 Dr. Ibrahim’s visa issues. For example:

8

“Review visa application,” 0.8 hours (Sept. 26, 2009) (Dkt. No.

699-1 at 49),

9

“Letter to counsel for U.S. government (plaintiff’s visa),” 0.6 hours

10

(Sept. 29, 2009) (id. at 50),

11

“Review applicable authorities (challenging denial of visa

application),” 1.2 hours (Jan. 6, 2010) (id. at 65), and

12

“Confer with EP (visa issues),” 0.3 hours (Jan. 11, 2010) (id. at 66).

13

No fees for the visa issues are recoverable. First, the government’s position in denying

14

Dr. Ibrahim’s visa applications was not unreasonable (and is largely unreviewable).

15

Second, Dr. Ibrahim did not prevail on the visa issues plaintiff’s counsel raised even though the

16

Court on its own awarded limited relief.

17

Moreover, the Court has reviewed the classified information and finds that, in the main, it

18

mitigates what otherwise might seem to be unjustified conduct as to the visa applications.

19

Kleindienst v. Mandel, 408 U.S. 753, 770 (1972). But to be clear, the government’s position was

20

not substantially justified as to the no-fly, TRIP, due process, and standing issues.

21

(4) Settlements, Non-Federal Defendants, and Unsuccessful

22

Discovery Efforts.

23

Counsel’s fee petition seeks fees from the settlement with the non-federal defendants,

24 even though plaintiff’s counsel received $195,431.35 for fees and costs pursuant to those

25 settlements (Dkt. Nos. 696, 718). For example, plaintiff’s counsel seek: “Telephone conference

26 call with attorneys Flynn and Keith (offer to compromise),” 0.4 hours (Mar. 3, 2010) and

27 “Prepare stipulation for entry of judgment and proposed judgment,” 0.8 hours (Mar. 12, 2010)

28 (Dkt. No. 699-1 at 69–72). Counsel cannot double dip and recover fees associated with past

18

United States District Court For the Northern District of California

1 settlements. It is hard to accept that counsel have been so brazen.

2

Counsel respond that the fees requested for the settled-out defendants were for “work that

3 was necessary for plaintiff’s case against the federal defendants.” Such work was needed because

4 “plaintiff’s counsel had to analyze the offer carefully to ensure that it would not negatively impact

5 plaintiff’s claims against the federal defendants” (Pipkin Decl. Exh. B). This order disagrees.

6 That work was not inextricably intertwined with the due process issue Dr. Ibrahim prevailed on

7 and is not recoverable. Velez v. Roche, 335 F. Supp. 2d 1022, 1041 (N.D. Cal. 2004)

8 (Magistrate Judge Edward Chen), an isolated district-court decision wherein a request to offset a

9 jury award was denied in a Title VII action, does not change this analysis.

10

It also would not be right to saddle the government with amounts spent by plaintiff’s

11 counsel on largely unsuccessful discovery efforts. For example, plaintiff’s counsel seek fees for:

12

“Prepare for depositions and prepare letter brief to court regarding

Holder and Clapper depositions,” 10.2 hours (May 20, 2013) (id. at

13

119),

14

“Prepare brief on Holder and Clapper depositions,” 3 hours (May

21, 2013) (ibid.), and

15

“Prepare letter to court (Clapper deposition),” 2.9 hours (June 12,

16

2013) (id. at 123).

17 A May 2013 order quashed the depositions of Attorney General Eric Holder and the Director of

18 National Intelligence James Clapper (Dkt. No. 481). The government should not have to pay for

19 counsel’s unsuccessful discovery efforts.

20

(5) Standing.

21

As stated above, plaintiff’s counsel cannot recover fees for work done regarding standing

22 prior to Ibrahim II. This is because Dr. Ibrahim did not prevail on the standing issue prior to the

23 appeal and the government’s position was substantially justified at the time. We cannot allow

24 hindsight bias to infiltrate the reasonableness of the government’s position at the time.

25

But for time after Ibrahim II (2012), plaintiff’s counsel can recover reasonable fees and

26 expenses incurred for defending against the government’s standing arguments. For example,

27 plaintiff’s counsel seek fees for 1.4 hours spent “Review[ing] applicable authorities (standing)”

28 (Oct. 7, 2013) (Dkt. No. 699-1 at 148). This line item is recoverable.

19

United States District Court For the Northern District of California

1

(6) Privileges.

2

Plaintiff’s counsel argue that the government improperly asserted a number of privileges,

3 including state secrets, “sensitive security information,” and the law enforcement privilege,

4 thereby delaying discovery, preventing plaintiff herself from learning what happened, and

5 withholding from the public access to this proceeding. In the context of the EAJA, this order

6 finds that it was reasonable for the government to take measures necessary to protect classified

7 information from individuals without proper clearance. United States v. Reynolds,

8 345 U.S. 1, 10 (1953). Plaintiff’s counsel and plaintiff herself never obtained clearance to view

9 classified information. Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988). Dr. Ibrahim also never

10 obtained clearance to view SSI. This order thus finds that plaintiff’s counsel cannot recover fees

11 for work done litigating access to classified and state-secrets privileged information.

12 For example, plaintiff’s counsel cannot recover fees for “Prepar[ing] response to defendants’ brief

13 on classified documents,” 8.9 hours (Mar. 25, 2013) (Dkt. No. 699-1 at 114).

14

Although the undersigned judge has not upheld every privilege assertion by the

15 government, in the main, the government’s behavior was not so unreasonable as to warrant fee

16 shifting for the privilege disputes. The government has a duty to follow its regulations and

17 statutes, including the authority granted to the Transportation Security Administration and the

18 United States Courts of Appeals. See Homeland Security Appropriations Act, 2007, Pub. L. No.

19 109-295, 120 Stat. 1355, 1382, Section 525(d) (Oct. 4, 2006). Accordingly, plaintiff’s counsel

20 cannot recover fees for work done on privilege issues. For example,

21

“Review applicable authorities (state secrets privilege and law

enforcement privilege),” 5 hours (June 12, 2009) (Dkt. No. 699-1 at

22

42),

23

“Prepare protective order (SSI),” 1.4 hours (Dec. 7, 2009) (id. at

59),

24

“Review applicable authorities (appealability of order overruling

25

privilege),” 1.2 hours (Dec. 10, 2009) (id. at 60),

26

“Prepare documents (acknowledgments of duty and background

applications); multiple telephone calls and emails with internal team

27

regarding plan on SSI,” 2.5 hours (Dec. 23, 2009) (id. at 61),

28

“Letter to attorney Houlihan (right to appeal SSI designations), 0.3

hours (July 26, 2013) (id. at 134),

20

United States District Court For the Northern District of California

1

“Prepare to challenge TSA’s SSI designations; review applicable

authorities (same),” 5.8 hours (Aug. 19, 2013) (id. at 139), and

2

“Prepare response to defendants’ brief regarding public access,” 5.8

3

hours (Nov. 17, 2013) (id. at 159).

4 Some privileges were naturally implicated by the types of discovery documents requested in this

5 litigation and it would be unfair to wholesale shift onto defendants the fees incurred because of

6 assertions made by the Executive Branch. To the extent distinguishable, plaintiff’s counsel

7 should segregate out the privilege-task portions of the 12 hours by Attorney Jennifer Murakami

8 and 15 hours by Attorney Elizabeth Pipkin spent on “Appear[ing] for/attend[ing] trial and

9 prepar[ing the] SSI brief” (Dec. 6, 2013) (id. at 165).

10

Plaintiff’s counsel also request fees for work done in 2014 regarding a “Ninth Circuit

11 petition for review of TSA’s final orders re SSI,” even though the bench trial in this action

12 concluded in December 2013. Plaintiff’s counsel cannot recover fees for at least the following

13 requests:

14

“Confer with team (challenges to SSI designations),” 0.8 hours

(Jan. 6, 2014) (Dkt. No. 699-1 at 170),

15

“Review documents (TSA order regarding SSI designations),” 1.4

16

hours (Jan. 6, 2014) (ibid.), and

17

“Prepare Ninth Circuit petition for review of TSA’s final orders re

SSI,” 6.5 hours (Jan. 6, 2014) (ibid.).

18

(7) Miscellaneous.

19

A prior order noted a number of questionable line items in counsel’s request, including the

20

following:

21

“Prepare opposition to motion to dismiss D.C. Circuit petition,”

22

11.6 hours (Aug. 1, 2006) (Dkt. No. 699-1 at 21),

23

“Review 60-minutes video re No-Fly List,” 0.6 hours (Oct. 10,

2006) (id. at 23),

24

“Review and respond to multiple calls and emails re opinion,” 2.8

25

hours (Aug. 19, 2008) (id. at 31),

26

“Meeting with amicus counsel,” 5.2 hours (Apr. 23, 2010) (id. at

74),

27

“Review Asian Law Caucus Amicus; Memorandum to/from amicus

28

counsel,” 1.8 hours (Oct. 1, 2010) (id. at 92),

21

United States District Court For the Northern District of California

1

“Telephone conference with Judge Corley and opposing counsel

(settlement conference),” 0.4 hours (Nov. 6, 2012) (id. at 105),

2

“Manage data in CaseMap,” 1.9 hours (Mar. 25, 2013) (id. at 114),

3

and

4

“Prepare documents,” 3.6 hours (June 11, 2013) (id. at 123).

5 If the parties are unable to resolve their disputes, they will have to review these line items and

6 others in accordance with this order and the special-master procedure set forth in the companion

7 order.

8

Moreover, this order will not categorically bar counsel from recovering reasonable

9 attorney’s fees incurred before filing this action. The request for $39,000 in fees allegedly

10 incurred in 2005, however, seems excessive. Indeed, counsel apparently only reduced $7,700 in

11 fees from 2005 in their fee request (Pipkin Decl. Exh. A). To the extent the requested fees are not

12 related to the issues Dr. Ibrahim prevailed on (e.g., due process and post-2012 standing),

13 they are not recoverable.

14

Counsel’s fee petition also raises a question about overstaffing, inefficiency, and

15 redundancy. The government argues that a reduction in fees is appropriate when there are

16 repeated intra-office conferences. Plaintiff’s counsel should review at least the following line

17 items to see whether a reduction or withdrawal is appropriate:

18

Attorney Marwa Elzankaly: “Confer with team (status, plan),” 0.8 hours

(Aug. 9, 2005) (Dkt. No. 699-1 at 5),

19

Attorney James McManis: “Confer with team (status, plan),” 0.8 hours

20

(Aug. 9, 2005) (ibid.),

21

Law Clerk Sheila Bari: “Confer with team (status, plan),” 0.8 hours

(Aug. 9, 2005) (ibid.),

22

*

*

*

23

Attorney Kevin Hammon: “Confer with consultant (jurisdictional

24

issues),” 2.9 hours (June 21, 2006) (id. at 18),

25

Attorney Marwa Elzankaly: “Confer with consultant (jurisdictional

issues),” 2.9 hours (June 21, 2006) (ibid.),

26

27

*

*

*

28

Attorney Kevin Hammon: “Confer with ME (preparation for hearing on

motions to dismiss),” 3.3 hours (July 7, 2006) (id. at 19),

22

United States District Court For the Northern District of California

1

Attorney Marwa Elzankaly: “Confer with KH (preparation for hearing on

motions to dismiss),” 3.3 hours (July 7, 2006) (ibid.),

2

*

*

*

3

Attorney Christine Peek: “Confer with team (status and plan),”

4

1.1 hours (Jan. 27, 2010) (id. at 67),

5

Attorney Marwa Elzankaly: “Meeting with JM, EP and CP (case status

and plan),” 1.1 hours (Jan. 27, 2010) (ibid.),

6

Attorney Elizabeth Pipkin: “Confer with attorney JM, ME and CP (status

7

and plan),” 1.1 hours (Jan. 27, 2010) (ibid.),

8

Attorney James McManis: “Confer with ME, EP, CP (status and plan),”

1.1 hours (Jan. 27, 2010) (ibid.),

9

*

*

*

10

Attorney Elizabeth Pipkin: “Confer with team (status and plan),”

11

2.1 hours (Jan. 15, 2014 [sic]) (id. at 171),

12

Attorney Christine Peek: “Confer with team (case status and plan),”

2.1 hours (Jan. 16, 2014) (ibid.),

13

Attorney Jennifer Murakami: Confer with EP, CP, and RK (status and

14

plan),” 2.1 hours (Jan. 16, 2014) (ibid.), and

15

Attorney Ruby Kazi: “Confer with team (status and plan),”

2.1 hours (Jan. 16, 2014) (ibid.).

16

This action was filed in January 2006 and the bench trial was completed in December 2013.

17

The parties also dispute whether fees for four counsel to appear at trial is reasonable.

18

The government argues that “a reasonable fee award would compensate two attorneys” (Opp. 20).

19

Plaintiff’s counsel argue that two attorneys presented while two attorneys simultaneously

20

prepared witnesses to testify, drafted motions, and assisted. Plaintiff’s counsel also note that

21

defendants had at least twice as many attorneys as plaintiff in the courtroom each day. This order

22

will not outright limit recoverable fees based on an arbitrary number of attorneys. For some

23

hearings, perhaps two (or even one) rather than three attorneys would have sufficed. For some

24

trial days, perhaps four attorneys were appropriate based on the tasks involved that day,

25

especially given the size of the defense team. Our court of appeals in at least one decision was

26

unpersuaded by arguments of needless duplication because assistance by non-arguing attorneys

27

and observing proceedings can be important for certain hearings in actions of tremendous

28

importance. Democratic Party of Washington State v. Reed, 388 F.3d 1281, 1287 (9th Cir. 2004).

23

United States District Court For the Northern District of California

1 Moving forward, plaintiff’s counsel should review their time-sheets and reduce or remove any

2 entries involving non-prevailing claims in accordance with this order, inefficiencies, and

3 overstaffing.

4

C. Bad Faith.

5

Contrary to plaintiff’s counsel, this order does not find bad faith supporting counsel’s

6 requested award of attorney’s fees. Section 2412(b) states (emphasis added):

7

The United States shall be liable for such fees and expenses to the

same extent that any other party would be liable under the common

8

law or under the terms of any statute which specifically provides for

such an award.

9

“The common law allows a court to assess attorney’s fees against a losing party that has ‘acted in

10

bad faith, vexatiously, wantonly, or for oppressive reasons.’” Rodriguez v. United States, 542

11

F.3d 704, 709 (9th Cir. 2008) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 45–46 (1991)).

12

The bad-faith exception is a narrow one. Our court of appeals has stated:

13

Under the common law, [a] finding of bad faith is warranted where

14

an attorney knowingly or recklessly raises a frivolous argument, or

argues a meritorious claim for the purpose of harassing an

15

opponent. Mere recklessness does not alone constitute bad faith;

rather, an award of attorney’s fees is justified when reckless

16

conduct is combined with an additional factor such as frivolousness,

harassment, or an improper purpose.

17

Id. at 709 (internal citations and quotation marks omitted). Each of counsel’s proffered “bad-

18

faith” allegations fails to qualify. First, plaintiff’s counsel allege bad faith arising from the

19

government’s conduct in relation to Dr. Ibrahim. This order disagrees. Agent Kelley’s error was

20

unintentional and made unknowingly. The January 14 order did not find that her placement in the

21

TSDB or visa denials were made in bad faith. Second, this order declines to find the

22

government’s requests for dismissal based on lack of standing rising to the level of bad faith. It is

23

probably true that the government should have sought review by the United States Supreme

24

Court, but the government’s verbal requests for dismissal and the few paragraphs in its briefs

25

were not made in bad faith. Third, the government was wrong to assure all that it would not rely

26

on state-secrets evidence and then reverse course and seek dismissal at summary judgment.

27

This was a mistake by the government but there is no indication that this error was knowingly or

28

recklessly made for harassment or improper purpose. Fourth, the government’s privilege

24

United States District Court For the Northern District of California

1 assertions — some were upheld, some were overruled — were not made in bad faith.

2 Additionally, that plaintiff herself, who was never cleared to receive SSI or classified information,

3 could not view certain documents is not “bad faith.” Fifth, there is no evidence that the

4 government obstructed plaintiff or her daughter from appearing at trial. Sixth, Witness Lubman’s

5 two corrections at trial to her deposition testimony do not evidence bad faith.

6

Plaintiff’s reliance on Brown v. Sullivan, 916 F.2d 492, 495–96 (9th Cir. 1990), at oral

7 argument is unavailing. The facts in Brown were extreme. In the disability benefits proceeding,

8 the Appeals Council made a determination without even examining the transcript for the ALJ

9 hearing — a statutory violation, and the Secretary relied on an unconstitutional review program in

10 violation of the claimant’s due process rights. The claimant was also forced to endure repeated

11 delays and additional motion practice because of errors. Here, we are not compelled to find the

12 conduct herein falling within the narrow bad faith exception, invoked in cases of vexatious,

13 wanton, or oppressive conduct. Agent Kelley’s mistake in checking the wrong box and the long

14 history of this action (largely due to plaintiff’s appeals) do not warrant the extreme finding of bad

15 faith. Accordingly, this order does not find bad faith supporting an entitlement to fees and

16 expenses by plaintiff’s counsel.

17

D. Rate Enhancement.

18

By plaintiff’s counsel’s calculation, under the EAJA rates, counsel are entitled to

19 $2,632,438.35. Counsel, however, ask for $3,630,057.50 because they argue that a rate

20 enhancement beyond the $125 per hour fee stated in Section 2412(d)(2)(A)(ii), is appropriate due

21 to the limited availability of attorneys qualified for these proceedings and the specialized

22 constitutional and civil rights knowledge of plaintiff’s counsel, specifically Attorneys James

23 McManis, Christine Peek, and Marwa Elzankaly. Our court of appeals has established the

24 following requirements:

25

First, the attorney must possess distinctive knowledge and skills

developed through a practice specialty. Secondly, those distinctive

26

skills must be needed in the litigation. Lastly, those skills must not

be available elsewhere at the statutory rate.

27

Love v. Reilly, 924 F.2d 1492, 1496 (9th Cir. 1991). The statute states that:

28

attorney fees shall not be awarded in excess of $125 per hour unless

25

United States District Court For the Northern District of California

1

the court determines that an increase in the cost of living or a

special factor, such as the limited availability of qualified attorneys

2

for the proceedings involved, justifies a higher fee.

3 28 U.S.C. 2412(d)(2)(A) (emphasis added). This enhancement is used sparingly for “some

4 distinctive knowledge or specialized skill needful for the litigation in question.” Pierce, 487 U.S.

5 at 572. Here, counsel’s dedication to litigating this terrorist-watchlist challenge for more than

6 seven years is admirable. But they are not alone. See, e.g., Green, et al. v. TSA, et al., No.

7 2:04-cv-00763-TSZ (W.D. Wash. filed Apr. 6, 2004) (Judge Thomas S. Zilly) (complaint

8 dismissed in January 2005); Scherfen, et al. v. DHS, et al., No. 3:08-cv-01554-TIV (M.D. Penn.

9 Aug. 19, 2008) (Judge Thomas I. Vanaskie) (complaint dismissed in February 2010); Latif, et al.

10 v. Holder, et al., No. 3:10-cv-00750-BR (D. Or. filed June 30, 2010) (Judge Anna J. Brown)

11 (pending cross-motion for partial summary judgment); Mohamed v. Holder, et al.,

12 No. 1:11-cv-00050-AJT-TRJ (E.D. Va. filed Jan. 18, 2011) (Judge Anthony J. Trenga) (granted

13 motion for leave to file fourth amended complaint); Tarhuni v. Holder, et al.,

14 No. 3:13-cv-00001-BR (D. Or. filed Jan. 2, 2013) (Judge Anna J. Brown) (third amended

15 complaint due May 2014); Mokdad v. Holder, et al., No. 2:13-cv-12038-VAR-RSW (E.D. Mich.

16 filed May 8, 2013) (Judge Victoria A. Roberts) (pending appeal of an order granting a motion to

17 dismiss); Fikre v. FBI, et al., No. 3:13-cv-00899-BR (D. Or. filed May 30, 2013) (Judge Anna J.

18 Brown) (pending motion to dismiss); Tanvir v. Comey, et al., No. 1:13-cv-06951-RA (S.D.N.Y.

19 filed Oct. 1, 2013) (Judge Ronnie Abrams) (amended complaint due April 2014).

20

Nevertheless, this order finds that Attorney James McManis is entitled to a rate

21 enhancement. Attorney McManis possesses distinctive knowledge and skills developed over his

22 46-years of trial experience. He has litigated constitutional-law issues, is a founding member of

23 the McManis Faulkner firm, has served as a special master in our district, and is a member of the

24 American College of Trial Lawyers, International Academy of Trial Lawyers, and American Bar

25 Foundation. During the relevant time period, his hourly rate was $700 to $900 per hour

26 (McManis Decl. ¶¶ 4, 7–10, 23). Under McManis Faulkner’s fee arrangement with Dr. Ibrahim,

27 the firm advanced all fees and expenses related to the action and never billed Dr. Ibrahim.

28 Attorney McManis’ distinctive expertise and skills were needed to take this litigation to our court

26

United States District Court For the Northern District of California

1 of appeals twice and to a bench trial. The undersigned judge would be hard pressed to find

2 anyone of his caliber with an hourly rate of $125 per hour. Accordingly, Attorney McManis is

3 entitled to a RATE ENHANCEMENT, RAISING THE $125 TO $250 PER HOUR.

4

Attorneys Peek and Elzankaly, much less experienced, are also esteemed members of our

5 district. A rate enhancement, however, will not be applied to their work in this case because it

6 has not been shown that they possess distinctive skills necessary for this litigation.

7

3.

DISCOVERY.

8

Plaintiff’s counsel argue that they are entitled to fees as discovery sanctions pursuant to

9 FRCP 37 and 16 because of defendants’ delays in discovery matters. FRCP 16(f), 37(a)(5), and

10 37(b) require an award of reasonable attorney’s fees and expenses incurred for noncompliance

11 with the rules unless the noncompliance was substantially justified or other circumstances make

12 the award unjust. Here, plaintiff’s counsel obliquely reference the discovery motions they

13 “prevailed on” and never identify which fees are allegedly recoverable as a discovery sanction

14 (Br. 15–16, Reply 6–7). In their motion, counsel merely state that “plaintiff had to bring multiple

15 motions to compel resulting in orders that defendants comply with the most basic discovery

16 requirements” (Br. 16). In their reply, counsel identify the April 2013 order which granted in part

17 and denied in part their motion to compel and the August 2013 order which granted in part and

18 denied in part a number of counsel’s motions (notably, their request to depose Agent Kelley was

19 granted but their hundreds of objections to the government’s privilege instructions during two

20 FRCP 30(b)(6) depositions were found to be largely unwarranted) (Dkt. Nos. 461, 532).

21 Importantly, the August 2013 order stated:

22

In the last two months, plaintiff has filed an excessive number of

motions (including discovery motions) requesting reconsideration,

23

compulsion of additional discovery, and other forms of relief. The

total comes out to fourteen motions.

24

(Dkt. No. 532). This order will not sanction the government by making it pay for counsel’s

25

abundant discovery motions, some of which were denied. Moreover, these requests for discovery

26

expenses should have been raised when the discovery motions were pending so the circumstances

27

would be fresh in the mind of the judge and counsel. Now, some of these requests are almost a

28

year late. This is further exacerbated by counsel’s failure to even identify for the Court which

27

United States District Court For the Northern District of California

1 fees could be recoverable and the associated tasks. Plaintiff’s counsel dumped on the Court a

2 172-page fee spreadsheet which includes fees for tasks they never prevailed on. To take one

3 example, plaintiff’s counsel seek fees for 3.2 hours spent “Prepar[ing her] request for leave to file

4 motion for reconsideration” (June 7, 2013), which appears to be for time spent preparing a two-

5 page letter filed on and dated June 7, 2013, seeking leave to file a motion for reconsideration of

6 the rulings on state secrets and classified information (Dkt. No. 485, 699-1 at 122). That motion

7 was denied (Dkt. No. 532).

8

In sum, fee-shifting as a discovery sanction is not warranted here.

9

4.

EXPENSES.

10

Even though plaintiff’s counsel seek hundreds of thousands of dollars in expenses, they

11 never provided with their motion any invoices or itemized spreadsheets supporting their alleged

12 expenses. They also provided no case law supporting an entitlement to specific expenses in their

13 motion other than to baldly pronounce that “plaintiff has incurred expenses in this case in the

14 amount $293,860.18 (Peek Decl., Exh. B.)” (Br. 17). Exhibit B identifies the following lump-

15 sums with no indication as to whether any expenses were reduced for inefficiency or non-

16 prevailing claims:

17

Photocopy Expense: $40,265.30

18

Messenger/Delivery Services: $11,597.69

19

Court Transcripts: $9,125.49

20

On-line Research: $98,717.67

21

Facsimile Expense: $232.00

22

Outside Copy Service: $5,068.86

23

Investigative Services: $50.00

24

Long-distance Telephone Services: $21.48

25

Travel Expenses: $40,335.68

26

Expert Fees: $88,446.01

27 Counsel’s utter failure to explain why these expenses are reasonable or recoverable and append

28 itemized spreadsheets is unexplained. Instead, they waited until their reply brief to file 228-pages

28

United States District Court For the Northern District of California

1 of exhibits. Upon objection, the late reply declaration and exhibits were stricken due to the

2 unfairness of sandbagging the government with such voluminous tardy documents for which there

3 was no opportunity to respond. This order also notes that counsel’s spreadsheets were largely

4 insufficiently detailed.

5

Although plaintiff’s counsel are entitled to reasonable expenses in accordance with the

6 issues identified in this order, they should timely serve detailed documents supporting those

7 requests. If disputed, the parties with the special master will have to figure out the specific

8 amounts recoverable, but this order will set forth some guiding principles.

9

Our court of appeals has affirmed an award of reasonable expenses, including “telephone

10 calls, postage, air courier and attorney travel expenses.” Int’l Woodworkers of Am., AFL-CIO,

11 Local 3-98 v. Donovan, 792 F.2d 762, 767 (9th Cir. 1985) (less than $2,000 in expenses).

12 The undersigned judge, however, is hard pressed to find an EAJA award of the magnitude

13 requested by plaintiff’s counsel.

14

CONCLUSION

15

As stated above, plaintiff’s counsel may recover reasonable fees and expenses incurred for

16 the procedural and substantive due process and Administrative Procedure Act claims, and fees

17 and expenses for work inextricably intertwined with those claims. Plaintiff’s counsel may also

18 recover reasonable fees and expenses incurred from defendant’s lack-of-standing arguments made

19 after Ibrahim II in 2012. Attorney McManis is entitled to an enhanced rate of $250 per hour. No

20 other fees and expenses (beyond statutory costs) may be recovered. A companion order sets forth

21 the special-master procedure.

22

23

IT IS SO ORDERED.

24

25 Dated: April 15, 2014. 26

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

27

28

29

 
 1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

United States District Court For the Northern District of California

10 RAHINAH IBRAHIM,

No. C 06-00545 WHA

11

Plaintiff,

12

v.

13 DEPARTMENT OF HOMELAND 14 SECURITY, et al.,

ORDER RE ATTORNEY'S FEES AND EXPENSES

15

Defendants.

/

16

17

1. As recently held in a companion order, plaintiff is entitled to recover reasonable

18 attorney’s fees and expenses incurred on the procedural due process, substantive due process,

19 Administrative Procedure Act claims and post-2012 standing issues.

20

2. The following procedure will be used to determine the amount of an award

21 herein. It will be structured to allow meaningful evaluation of the time expended.

22

3. No later than MAY 1, 2014, plaintiff’s attorneys must file and serve a detailed

23 declaration, organized by discrete projects, breaking down all attorney and paralegal time for

24 the issues allowed. For each project, there must be a detailed description of the work, giving

25 the date, hours expended, attorney name, and task for each work entry, in chronological order.

26 A “project” means a deposition, a motion, a witness interview, and so forth. It does not mean

27 generalized statements like “trial preparation” or “attended trial.” It includes discrete items like

28 “prepare supplemental trial brief on issue X.” The following is an example of time collected by

a project.

United States District Court For the Northern District of California

1

PROJECT: ABC DEPOSITION (2 DAYS IN FRESNO)

2 Date 3

Time- Description keeper

Hours x Rate = Fee

4 01-08-01 XYZ Assemble and photocopy

exhibits for use in ABC

5

deposition.

2.0

$100

$200

6 01-09-01 RST Review evidence and prepare to 4.5

examine ABC at deposition.

7 01-10-01 XYZ Research procedural due process 1.5

8

clause issue.

$125 $100

$562.50 $150

9 01-11-01 RST 10 01-12-01 RST 11

Prepare for and take ABC deposition.
Prepare for and take ABC deposition.

8.5

$125 $1,062.50

7.0

$100 $700

12

Project Total:

23.5

$2,670

13

4. All entries for a given project must be presented chronologically one after the

14 other, i.e., uninterrupted by other projects, so that the timeline for each project can be readily

15 grasped. Entries can be rounded to the nearest quarter-hour and should be net of write-down for

16 inefficiency or other cause. Please show the sub-totals for hours and fees per project, as in the

17 example above, and show grand totals for all projects combined at the end. Include only entries

18 for which compensation is allowed, i.e., after application of “billing judgment.” For each

19 project, the declaration must further state, in percentage terms, the proportion of the project

20 directed at issues for which fees are awardable and must justify the percentage. This percentage

21 should then be applied against the project total to isolate the recoverable portion (a step not

22 shown in the example above).

23

5. A separate summary chart of total time and fees sought per individual

24 timekeeper (not broken down by project) should also be shown at the end of the declaration.

25 This cross-tabulation will help illuminate all timekeepers’ respective workloads and roles in the

26 overall case and serve as a check against “piling on.”

27

6. The declaration must also set forth (a) the qualifications, experience and role of

28 each attorney or paralegal for whom fees are sought; (b) the normal rate ordinarily charged for

2

United States District Court For the Northern District of California

1 each in the relevant time period; (c) how the rates were comparable to prevailing rates in the

2 community for like-skilled professionals; and (d) proof that “billing judgment” was exercised.

3 On the latter point, as before, the declaration should describe adjustments made to eliminate

4 duplication, excess, associate-turnover expense, and so forth. These adjustments need not be

5 itemized but totals for the amount deleted per timekeeper should be stated. The declaration

6 must identify the records used to compile the entries and, specifically, state whether and the

7 extent to which the records were contemporaneous versus retroactively prepared. It must state

8 the extent to which any entries include estimates (and what any estimates were based on).

9 Estimates and/or use of retroactively-made records may or may not be allowed, depending on

10 the facts and circumstances.

11

7. Ordinarily, no more than one attorney and one paralegal need be present at a

12 deposition; more will normally be deemed excessive. Ordinarily, no more than one attorney

13 need attend a law-and-motion hearing; more will normally be deemed excessive. To allow for

14 symmetry, however, the award will take into account the staffing used by the opposing party.

15 The burden is on movant to make such a showing.

16

8. If the opposing party doubts the accuracy of the declaration, then the moving

17 party must immediately produce the original underlying time records for inspection upon

18 request. The opposing party must then file and serve any opposition. In this case, the

19 opposition will be due FOURTEEN CALENDAR DAYS after plaintiff’s detailed declaration is filed.

20 If the opposing party contends that any item or project was excessive, then the opposition must

21 explain why and provide a declaration setting forth completely all time expended by the

22 opposing party on the same project, in the same format described above, so that symmetry may

23 be considered, also making available the underlying records for inspection if requested. If any

24 billing rates are challenged, then the opposition must state the billing rates charged to the

25 opposing party for all professionals representing the opposing party in the case and their

26 experience levels. The opposing declaration must also state, as to each project, the percentage

27 of the project the opposition contends was directed at issues on which fees are awardable,

28

3

United States District Court For the Northern District of California

1 stating reasons for the percentage. This percentage should then be applied against the project

2 total to isolate the recoverable portion.

3

9. The opposing submissions may not simply attack the numbers in the application.

4 It must also set forth a counter-analysis. The counter-analysis should be in the same format

5 required of the applicant, arriving at a final number. The opposition must clearly identify each

6 line item in the application challenged as excessive, improper or otherwise unrecoverable and

7 explain why. The opposition, for example, may annotate (legible handwriting will be

8 acceptable) the applicant’s declaration to isolate the precise numbers at issue.

9

10. With the benefit of both sides’ filings, representatives of the parties with final

10 decision authority shall meet in person in this district and confer to try to resolve all differences

11 as to the amount. If no agreement is reached, the moving party must file and serve a declaration

12 showing full compliance with this paragraph, explaining when, where and who met, their

13 decision authority, how long they met, what documents were reviewed together, and the

14 principal points of disagreement. This must be done within 28 CALENDAR DAYS of the filing of

15 movant’s detailed declaration.

16

11. If no agreement is reached, a special master shall then be appointed. If the

17 parties cannot agree on a special master, then the Court shall select a special master to

18 determine the value of services and fees and expenses to be awarded. The parties must so

19 advise the Court on this within 28 CALENDAR DAYS of the filing of movant’s detailed

20 declaration. Any communication with a special master to check on his or her availability must

21 be made jointly by counsel.

22

12. The special master shall have all the powers set forth in FRCP 53(c) and

23 FRCP 54(d)(2)(D). The parties shall provide the special master with copies of all motion

24 papers and other documents relevant to this dispute. The special master shall review the briefs

25 and declarations by the parties on the pending motion, hear argument, and then determine a

26 reasonable amount to award, including any fees on fees. The special master shall also

27 determine the extent to which any discovery should be permitted — with the caution that further

28

4

United States District Court For the Northern District of California

1 discovery should be the exception and not the rule. The special master shall then prepare and

2 file a report on recommended findings and amount.

3

13. Absent any supplementation or hearing allowed by the special master, the

4 foregoing submissions (together with the briefs already filed) shall be the entire record for the

5 motion. There will be no replies unless allowed later by the special master. Any further

6 submissions for the special master’s use should not be filed with the Court. If objections are

7 later made to the special master’s report, the objecting party must file a declaration submitting

8 to the Court a complete appendix of relevant communications with the special master.

9

14. Any objections to this procedure or proposed modification must be filed by

10 NOON ON APRIL 23.

11

12

IT IS SO ORDERED.

13

14 Dated: April 15, 2014. 15

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

16

17

18

19

20

21

22

23

24

25

26

27

28

5

 
 1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6 FOR THE NORTHERN DISTRICT OF CALIFORNIA
7

8

United States District Court For the Northern District of California

9 RAHINAH IBRAHIM,

No. C 06-00545 WHA

10

Plaintiff,

11

v.

12 DEPARTMENT OF HOMELAND 13 SECURITY, et al.,

ORDER RE REVIEW OF CLERK’S BILL OF COSTS

14

Defendants. /

15

16

INTRODUCTION

17

In this post-trial satellite litigation, the parties have filed hundreds of pages with the

18 Court fighting over fees, expenses, and costs. This order addresses the government’s motion for

19 review, reduction, or denial of the Clerk’s taxation of costs. For the reasons stated herein, the

20 Clerk’s taxation of costs is reduced.

21

STATEMENT

22

The procedural history of this action is summarized in a companion order which

23 addresses at length plaintiff’s motion for attorney’s fees and expenses. In the main, plaintiff’s

24 counsel are entitled to recover reasonable fees and expenses incurred for the procedural and

25 substantive due process claims, Administrative Procedure Act claim, and defendant’s lack-of-

26 standing arguments following the remand in 2012. A special master procedure is set forth in a

27 separate order. The facts relevant to this costs motion are as follows.

28

United States District Court For the Northern District of California

1

In December 2013, a five-day bench trial occurred. In January 2014, findings of fact,

2 conclusions of law, and order for relief issued. Plaintiff was the prevailing party.

3

On January 28, plaintiff’s counsel submitted a bill of costs for $58,615.31 (Dkt. No. 693).

4 They also submitted more than 100-pages of invoices. The same day, plaintiff’s counsel filed a

5 motion for attorney’s fees and costs, seeking $3.67 million in fees and $294,000 in expenses.

6

On February 7, plaintiff’s counsel submitted four supplements to their bill of costs

7 (Dkt. Nos. 704–07). The supplements were spreadsheets itemizing the costs sought via the

8 invoices.

9

On February 21, the Clerk taxed $53,699.13 in costs. The breakdown was as follows:

10 $2,320.00 for fees of the Clerk, $3,525.74 for fees for service of summons and subpoena,

11 $26,690.00 for fees for printed and electronically recorded transcripts necessarily obtained for

12 use in the action ($4,000.80 were disallowed as outside the ambit of Local Rule. 54-3(c)),

13 $240.00 for witness fees, $7,954.34 for fees for exemplification and costs of making copies of

14 materials where the copies were necessarily obtained for use in the action, $12,969.05 for other

15 costs (Dkt. No. 713).

16

On February 28, after filing objections, defendants filed a motion for review of the

17 Clerk’s taxation of costs. The parties had an opportunity to request oral argument on this

18 motion, but the deadline passed and no request was made. This motion follows full briefing.

19

ANALYSIS

20

1.

COUNSEL’S SUPPLEMENTS.

21

Plaintiff’s untimely supplements filed on February 7 without leave of Court and after the

22 fourteen-day deadline are hereby STRICKEN (Dkt. Nos. 704–07). As the government argues and

23 the undersigned judge agrees, these were filed more than a week late and after the parties met and

24 conferred. See Local Rule 54-1(a). Counsel should have provided all supporting materials by the

25 deadline.

26

2.

TAXATION OF COSTS.

27

FRCP 54(d)(1) states that costs should be allowed to the prevailing party. Section 1920

28 provides for taxation of the following costs:

2

United States District Court For the Northern District of California

1

(1) Fees of the clerk and marshal;

2

(2) Fees for printed or electronically recorded transcripts

necessarily obtained for use in the case;

3

(3) Fees and disbursements for printing and witnesses;

4

(4) Fees for exemplification and the costs of making copies of any

5

materials where the copies are necessarily obtained for use in the

case;

6

(5) Docket fees under section 1923 of this title;

7

(6) Compensation of court appointed experts, compensation of

8

interpreters, and salaries, fees, expenses, and costs of special

interpretation services under section 1828 of this title.

9

Local Rule 54-3 sets forth the standards for taxing costs. Relevant herein are the fees for filing

10

and service of process (Local Rule 54-3(a)), deposition transcripts (Local Rule 54-3(c)),

11

reproduction and exemplification (Local Rule 54-3(d)), and witness expenses

12

(Local Rule 54-3(e)).

13

LOCAL RULE 54-3(A) — FEES OF THE CLERK (EXHIBIT A).

14

This order taxes $955 for the complaint filing fee, appellate filing fee, and docketing fee

15

for the April 2010 notice of appeal. No other fees are taxable in this category.

16

The Clerk taxed $2,320. Local Rule 54-3(a)(1) states: “The Clerk’s filing fee is

17

allowable if paid by the claimant.” FRAP 39(a) states that “if a judgment is affirmed, costs are

18

taxed against the appellant” but “if a judgment is affirmed in part, reversed in part, modified, or

19

vacated, costs are taxed only as the court orders.” In 2008, our court of appeals affirmed in part

20

and reversed in part an order granting defendants’ motion to dismiss. Ibrahim v. Dep’t of

21

Homeland Sec., 538 F.3d 1250, 1253 (9th Cir. 2008). In 2012, our court of appeals reversed in

22

part, affirmed in part, and vacated in part an order dismissing remaining claims. Ibrahim v. Dep’t

23

of Homeland Sec., 669 F.3d 983, 999 (9th Cir. 2012). In 2012, the Clerk of our court of appeals

24

taxed $437.60 against defendants for plaintiff’s excerpt of record and briefs (Dkt. Nos. 355, 356).

25

This order finds that the docketing fees for the notices of appeal filed in 2006, 2009, and

26

February 2010 are not taxable because plaintiff’s main relief was obtained in the 2012 appellate

27

decision. The filing fees and docketing fee for the April 2010 notice of appeal are taxable.

28

3

United States District Court For the Northern District of California

1

LOCAL RULE 54-3(A) — SERVICE (EXHIBIT B).

2

This order taxes costs reasonably required and actually incurred for service of the federal

3 defendants remaining in the action at trial and for service of any witnesses who appeared at trial

4 (e.g., FBI Special Agent Kevin Michael Kelley). To the extent stated below, no other fees shall

5 be taxed for this category. By NOON ON APRIL 30, the parties shall jointly file a statement

6 indicating the fees to be taxed for this category in accordance with this order. Based on the

7 55-pages of invoices plaintiff submitted, it is difficult at this time to decipher which invoices

8 correspond to which defendants and for what purpose. Some but not all of the names and

9 purposes are recognizable. Accordingly, the parties are encouraged to work out their differences

10 via a meet-and-confer. To be clear, the Clerk’s taxation of $3,525.74 in this category will not be

11 adopted wholesale.

12

Local Rule 54-3(a)(2) states in relevant part (emphasis added): “Fees for service of

13 process by someone other than the marshal acting pursuant to [FRCP] 4(c), are allowable to the

14 extent reasonably required and actually incurred.” In April 2006, plaintiff filed a notice of

15 voluntary dismissal for defendant County of San Mateo (Dkt. No. 49). In March 2010, plaintiff

16 settled with the San Francisco defendants, John Bondanella, and the US Investigations Services,

17 Inc. “As among plaintiff, the San Francisco defendants, Bondanella, and USIS, all parties are to

18 bear their own costs and attorneys’ fees” (Dkt. No. 328). Only the federal defendants proceeded

19 to trial.

20

First, plaintiff seeks costs for serving the County of San Mateo, City of San Francisco,

21 San Francisco Police Department, “Richard Pate, SFPD,” “John Cunningham, SFPD,” John

22 Bondanella, United Airlines, Inc., UAL Corporation, “Elizabeth Maron, SFPD,” County of San

23 Francisco, San Francisco Airport, US Investigations Services, Inc., and others. Costs for serving

24 these individuals and entities are not taxable herein because these individuals settled out long ago.

25 Plaintiff and the settling defendants agreed to bear their own costs.

26

Second, in this category of “service of summons and subpoena,” plaintiff’s counsel

27 include invoices for obtaining records from the “American Medical Response” and

28

4

United States District Court For the Northern District of California

1 “San Francisco Fire Department.” These are not taxable. Indeed, plaintiff’s counsel provide no

2 supporting authority.

3

Third, plaintiff’s counsel seek costs for serving deposition subpoenas on Attorney General

4 Eric H. Holder, Jr. and the Director of National Intelligence James R. Clapper. A May 2013 order

5 quashed these depositions (Dkt. No. 481). These will not be taxed.

6

Fourth, the government objects to invoices for four “may call” witnesses that plaintiff

7 apparently served trial subpoenas on but did not call at trial: David Nevins, John Pearson,

8 Kenneth Cottura, and Richard Pate. Plaintiff listed 48 witnesses on her trial witness list

9 (Dkt. No. 568). Plaintiff’s counsel argue that John Pearson, Kenneth Cottura, and Richard Pate

10 came to Court in anticipation of being called for trial, but nevertheless counsel never called them.

11 This order declines to tax these particular costs because these individuals were never called and it

12 was unreasonable to list 48 witnesses on her list in light of the time allotted for trial. Reasonable

13 judgment should be used in serving trial subpoenas. We cannot burden third-parties and then tax

14 the losing side with the costs.

15

LOCAL RULE 54-3(C) — DEPOSITION TRANSCRIPTS (EXHIBIT C).

16

This order taxes $18,218.78 for deposition costs. The Clerk taxed $26,690 for “fees for

17 printed or electronically recorded transcripts obtained for use in this case,” after disallowing

18 $4,000.08 as “outside the ambit” of Local Rule 54-3(c). The government proposes no more than

19 $15,319.50 be taxed (Dkt. No. 717). Local Rule 54-3(c) states (emphasis added):

20

(1) The cost of an original and one copy of any deposition

(including videotaped depositions) taken for any purpose in

21

connection with the case is allowable.

22

(2) The expenses of counsel for attending depositions are not

allowable.

23

(3) The cost of reproducing exhibits to depositions is allowable if

24

the cost of the deposition is allowable.

25

(4) Notary fees incurred in connection with taking depositions are

allowable.

26

(5) The attendance fee of a reporter when a witness fails to appear

27

is allowable if the claimant made use of available process to compel

the attendance of the witness.

28

5

United States District Court For the Northern District of California

1 Plaintiff’s counsel submitted invoices for the depositions of the FBI, Department of State,

2 Terrorist Screening Center, plaintiff herself, Professor Shirin Sinnar, Professor Jeffrey Kahn, and

3 Kevin Kelley. In addition to the costs for the deposition transcripts and exhibits, plaintiff’s

4 counsel seek costs for rough transcripts, wait fees, shipping-and-handling fees, real-time service

5 fees, “Video on DVD w/ synch” fees, conference room rentals, and the reporter’s certificates.

6 This order finds the “extra” costs duplicative and unsupported by Local Rule 54-3(c). The local

7 rule permits recovery of the cost of an original, a copy, and exhibits. The costs taxed in this

8 category are so limited.

9

LOCAL RULE 54-3(D) — REPRODUCTION AND EXEMPLIFICATION (EXHIBIT E).

10

This order taxes $857.47 for fees for exemplification and costs of making copies of any

11 materials where the copies were necessarily obtained for use in the case. The Clerk taxed

12 $7,954.34. The government proposes no more than $491.93 be taxed. Local Rule 54-3(d) states

13 (emphasis added):

14

(1) The cost of reproducing and certifying or exemplifying

government records used for any purpose in the case is allowable.

15

(2) The cost of reproducing disclosure or formal discovery

16

documents when used for any purpose in the case is allowable.

17

(3) The cost of reproducing copies of motions, pleadings, notices,

and other routine case papers is not allowable.

18

(4) The cost of reproducing trial exhibits is allowable to the extent

19

that a Judge requires copies to be provided.

20

(5) The cost of preparing charts, diagrams, videotapes and other

visual aids to be used as exhibits is allowable if such exhibits are

21

reasonably necessary to assist the jury or the Court in

understanding the issues at the trial.

22

Counsel’s request for almost $8,000 is supported by three invoices.

23

First, counsel seek $1,457.75 for processing and producing “expert Jeffrey Kahn’s

24

documents in response to Defendants’ November 8, 2013 Subpoena.” The government quibbles

25

about whether a subpoena was necessary because plaintiff should have produced the notes as part

26

of her expert disclosures and in electronic form. There is, however, some merit to the

27

government’s argument that the additional service fees for “Convert to PDF,” “Blowbacks,” and

28

“DVD Duplicate” may not have been necessary. Accordingly, these additional line items are

6

United States District Court For the Northern District of California

1 reduced but the balance spent on producing documents are taxed because these documents were

2 produced pursuant to defendants’ subpoena and “used for any purpose in the case.”

3

Second, counsel seek $6,496.59 for “two sets of trial exhibits.” Defendants state that they

4 prepared the exhibit binders submitted to the Court — not plaintiff’s counsel. Plaintiff’s counsel

5 responds: “Plaintiff inadvertently claimed copies of trial exhibits as copies for the Court. These

6 were actually trial binders with copies of the exhibits for use of plaintiff’s counsel.” This sum is

7 not taxable.

8

LOCAL RULE 54-3(E) — WITNESSES (EXHIBIT D).

9

This order taxes $280 for fees of witnesses. Local Rule 54-3(3) states: “Per diem,

10 subsistence and mileage payments for witnesses are allowable to the extent reasonably necessary

11 and provided for by 28 U.S.C. § 1821.” Section 1821(b) states (emphasis added):

12

A witness shall be paid an attendance fee of $40 per day for each

day’s attendance. A witness shall also be paid the attendance fee

13

for the time necessarily occupied in going to and returning from the

place of attendance at the beginning and end of such attendance or

14

at any time during such attendance.

15 The Clerk reduced plaintiff’s request from $484.06 to $240.00 for six witnesses (seven days) at

16 $40 per day. This order observes that plaintiff indicated that Kevin Kelley attended two days so

17 $280 should be taxed.

18

SECTION 1920(6) — OTHER COSTS (EXHIBIT F).

19

No costs will be taxed for this category, even though the Clerk taxed $12,969.05.

20

First, plaintiff’s counsel sought costs for obtaining sensitive security information

21 clearance. No authority supporting taxation of these costs is provided. Indeed, neither Section

22 1920 nor Local Rule 54-3 identifies such costs as being recoverable. They are not taxable.

23

Second, plaintiff’s counsel sought $5,166 in “fee(s)” for Professor Jeffrey Kahn’s

24 deposition on two days in 2013. Professor Kahn’s hourly rate was $500 per hour. To be clear,

25 Professor Kahn was not a court-appointed expert. 28 U.SC. 1920(6). Local Rule 54-3(e) states:

26 “No other witness expenses, including fees for expert witnesses, are allowable.”

27 Accordingly, these expert fees are not taxable.

28

7

United States District Court For the Northern District of California

1

Third, plaintiff’s counsel sought $6,972 in costs for “[t]rial database preparation of video

2 clips for Plaintiff’s deposition.” Counsel argue that because plaintiff was unable to attend trial in

3 person, they had to cull down more than twenty hours of deposition testimony. Our court of

4 appeals has stated that “the costs of deposition editing and synchronizing are not authorized by

5 [Section] 1920.” Kalitta Air L.L.C. v. Cent. Texas Airborne Sys. Inc., 741 F.3d 955, 958

6 (9th Cir. 2013). These deposition-video-preparation costs are not taxable.

7

Fourth, plaintiff’s counsel sought $662.70 for translating a police report from Malay to

8 English — the document was provided to defendants in discovery. The Supreme Court has held

9 that Section 1920(6) does not include costs for document translation. Taniguchi v. Kan Pac.

10 Saipan, Ltd., — U.S. —, 132 S. Ct. 1997, 2007 (2012). This sum is not taxable.

11

Finally, to be clear, there is no authority for counsel’s attempt to recover the cost of

12 obtaining eight copies of Professor Kahn’s book (the Clerk disallowed these costs) and the five

13 dollars incurred for obtaining a sheriff’s report. Accordingly, no costs shall be taxed from

14 exhibit F.

15

CONCLUSION

16

For the reasons stated herein, the Clerk’s taxation of costs is reduced. The sum of

17 $20,311.25 is TAXED. The additional sum to be taxed under Local Rule 54-3(a) shall be

18 determined following the parties’ joint statement due by NOON ON APRIL 30. The statement shall

19 indicate the costs reasonably required and actually incurred for service of the federal defendants

20 remaining in the action at trial and for service of any witnesses who appeared at trial.

21 Timely unrecovered costs may be submitted to the special master as “expenses.”

22

23

IT IS SO ORDERED.

24

25 Dated: April 15, 2014. 26

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

27

28

8

 
 1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6 FOR THE NORTHERN DISTRICT OF CALIFORNIA
7

United States District Court For the Northern District of California

8

9 RAHINAH IBRAHIM,

10

Plaintiff,

11

v.

12

DEPARTMENT OF HOMELAND SECURITY, et al.,

13

Defendants.

14

No. C 06-00545 WHA
ORDER RESOLVING OBJECTIONS, ADOPTING SPECIAL MASTER’S REPORT AND RECOMMENDATION, VACATING HEARING, AND FIXING COMPENSATION /

15

INTRODUCTION

16

At long last, this protracted satellite litigation over attorney’s fees and expenses comes to

17 an end, save and except for the pending appeal regarding attorney’s fees and expenses. A prior

18 order held that plaintiff was entitled to some but not all of the grossly excessive fees and expenses

19 sought. The special master then issued a report and recommendation regarding the amount of the

20 award. This order resolves the pending objections and adopts the special master’s report and

21 recommendation in its entirety.

22

STATEMENT

23

The history of this action has been summarized in prior orders and will not be repeated

24 herein (Dkt. Nos. 682, 739). In pertinent part, in January 2014, plaintiff moved for attorney’s fees

25 and expenses. There were at least three defects with plaintiff’s motion. First, in violation of our

26 district’s local rules, plaintiff’s counsel failed to meet-and-confer prior to filing the motion.

27 This alone was grounds to deny the motion. Second, no detailed spreadsheets or invoices

28 supporting the expenses sought were appended to the motion. This was grounds to deny the

expenses sought. Third, plaintiff’s counsel referred to a confidential settlement conference in

United States District Court For the Northern District of California

1 violation of our local rules. In sum, even though it was a close call whether to deny counsel an

2 award based on these violations, plaintiff’s counsel were nevertheless permitted to proceed,

3 spawning this massive satellite litigation.

4

Following full briefing, supplemental submissions, and oral argument, an April 2014 order

5 determined counsel’s entitlement to fees and expenses. Counsel were entitled to some but not all

6 of the grossly excessive fees and expenses sought. A companion order required counsel to file

7 revised declarations in accordance with the April 2014 order (Dkt. Nos. 715, 718, 739, 740).

8

This was not done. Plaintiff’s counsel first requested an extension, which was granted.

9 Counsel then re-filed their declarations seeking all fees and expenses previously sought and added

10 more to their demand. In total, counsel sought $3.88 million in fees under market rates and

11 $327,826 in expenses. A June 2014 order gave counsel one more chance to comply

12 (Dkt. No. 758).

13

Counsel refused. Counsel stubbornly insisted on “the full amount of her requested

14 attorney’s fees” and filed notices of appeal regarding fees, expenses, and costs. Counsel then

15 filed three motions for reconsideration, which upon review, were denied. A special master was

16 appointed, after the parties were given adequate notice and an opportunity to be heard.

17 The special master was ordered to file a written report regarding the amount of fees and expenses

18 to be awarded. The special master, of course, could not revisit the entitlement rulings.

19

The special master reviewed the parties’ submissions and relevant orders, allowed

20 supplemental submissions, and heard oral argument. In pertinent part, plaintiff’s counsel

21 continued to insist on “100% of their fees.” Counsel also asked for “additional fees” incurred

22 since May 2014, which were actually fees-on-fees-on-fees. The special master then filed a

23 117-page report regarding attorney’s fees and a sixteen-page report regarding expenses. In short,

24 plaintiff’s counsel sought $1.76 million in attorney’s fees (or more than $3.88 million under

25 market rates) and $293,860 in expenses. The government argued that no more than $232,550 in

26 attorney’s fees and $21,080 in expenses were due. The special master recommended an award of

27 $419,987.36 in attorney’s fees and $34,768.71 in expenses (Dkt. Nos. 787, 789). The parties had

28 until October 2 to file objections, not to exceed ten pages.

2

United States District Court For the Northern District of California

1

Both sides filed objections. Plaintiff’s counsel, however, filed two ten-page briefs and

2 voluminous exhibits. Both sides filed responses. Notably, the government moved to strike all of

3 plaintiff’s objections for failure to comply with the page limits.

4

Now, the time for filings regarding the special master’s report has elapsed. Having read

5 the special master’s report and recommendation and the parties’ submissions, this order finds as

6 follows.

7

ANALYSIS

8

1.

IMPROPER OBJECTIONS.

9

All of counsel for plaintiff’s improper objections are OVERRULED.

10

First, plaintiff’s counsel object to the appointment of a special master because she “did

11 not preside over or attend the trial.” Procedurally, this objection has been waived. The deadline

12 to object to a special master was in April and no objection was timely made. Accordingly, the

13 special master was appointed pursuant to Rule 53 and 54, after notice and an opportunity to be

14 heard. Moreover, substantively, this objection makes no sense. There is no evidence that the

15 special master lacked “familiarity” with the case, especially since she reviewed the parties’

16 voluminous submissions and heard oral argument.

17

Second, plaintiff’s counsel vaguely object to the “procedures” set forth in the April, June,

18 and July orders. That is, the procedures for the special master and the orders to file revised

19 declarations. No authority is provided for this objection, other than the bald argument that the

20 “procedures” ordered resulted in “duplicative work” and forced them to “cut fees.” Not so.

21 Plaintiff’s counsel never complied with the entitlement order, requiring the special master to sift

22 through hundreds of pages of briefing, spreadsheets, and invoices to determine which fees and

23 expenses were recoverable. This task was rendered even more difficult because the spreadsheets

24 were “without formulas,” even though a native production was ordered. Moreover, plaintiff’s

25 counsel never “cut fees,” other than to excise $462,470 for a whopping $3.88 million demand.

26

Third, plaintiff’s counsel object to the special master’s “errors” in failing to award fees for

27 non-recoverable tasks. For example, counsel argue that “the Special Master erred in denying

28 recovery for work done in support of the Equal Protection and First Amendment claims.”

3

United States District Court For the Northern District of California

1 Plaintiff did not prevail on these claims. Counsel also argue that the special master erred in

2 failing to award fees for visa issues, post-2012 standing issues, and privilege issues. Counsel are

3 wrong. The special master could not (and did not) revisit the entitlement rulings.

4

Fourth, plaintiff’s counsel ignored the page limits. The July 2014 order stated that the

5 objections were not to exceed ten pages. Plaintiff’s counsel filed 255 pages: two ten-page briefs,

6 a 234-page declaration with exhibits, and a one-page “statement.” This was not a good faith

7 effort to comply with the page limits. Indeed, no motion for a page extension was filed.

8

The government moves to strike all of plaintiff’s objections for failure to comply with the

9 page limits. That motion is GRANTED IN PART AND DENIED IN PART. As a sanction for violating

10 the page limits, docket number 793 (brief regarding expenses) is hereby STRICKEN. Counsel for

11 plaintiff will not be allowed to “reincorporate” in her response her “previous” objections

12 regarding expenses. Pages eight through ten of her response (Dkt. No. 799) are hereby

13 STRICKEN. No objections to the special master’s report regarding expenses are preserved

14 because counsel failed to abide by the rules. It would be unfair to retain these objections when

15 the government made an effort to fit all objections within ten pages.

16

In sum, all of plaintiff’s improper objections are OVERRULED.

17

2.

REMAINING OBJECTIONS BY PLAINTIFF’S COUNSEL.

18

For the reasons stated herein, all of the remaining objections by plaintiff’s counsel are

19 OVERRULED.

20

First, plaintiff’s counsel object to the special master’s reductions for needless duplication,

21 excessive conferencing, and lack of billing judgment. For example, plaintiff’s counsel sought

22 fees for three attorneys conferencing regarding “status and plan.” Time billed by the third, more

23 senior, attorney was excised by the special master. This order adopts all of the special master’s

24 recommendations and finds that she properly reduced many of the grossly overbroad sums

25 demanded by plaintiff’s counsel.

26

Second, plaintiff’s counsel object to the special master’s reductions for block-billing and

27 vague entries. The special master did not err in finding these line items improper, excessive,

28 and/or inadequately detailed. Plaintiff’s counsel also argue that to the extent the special master

4

United States District Court For the Northern District of California

1 could not “infer” information from the surrounding entries, “she could have requested further

2 clarification.” This argument is misplaced. It was counsel for plaintiff’s burden to submit

3 sufficient proof in January 2014. Plaintiff’s counsel failed to do so. They were given a second

4 chance to revise their declarations in April. They again failed to do so. They were given a third

5 chance in June. They refused. They were then given an opportunity to work with the special

6 master to calculate the proper amount of recoverable fees. They stubbornly insisted on “100% of

7 their fees.” To now blame the special master for not requesting “further clarification” is utterly

8 misguided.

9

Third, plaintiff’s counsel object to the special master’s recommendation, after reviewing

10 all of the relevant line items, that no fees-on-fees-on-fees be awarded. No authority is provided

11 for this objection. Plaintiff’s counsel only baldly assert that “[t]he Special Master declined to

12 award plaintiff fees for work done since May 2014. This was improper. Plaintiff requests that

13 the Court award her these fees.” This order finds the special master’s recommendation

14 reasonable and finds that those amounts were properly omitted.

15

In sum, all of counsel for plaintiff’s objections are OVERRULED.

16

3.

OBJECTIONS BY THE GOVERNMENT.

17

For the reasons stated herein, all of the government’s objections are OVERRULED.

18

First, the government argues that no fees and expenses should be awarded “given

19 Plaintiff’s counsel’s obstinate refusal to comply with the Court’s entitlement order . . . and her

20 untimely and insufficiently documented request for expenses.” All will recognize that plaintiff’s

21 counsel repeatedly disregarded the rules. In such circumstances, it would be justified to refuse to

22 enter an award. Nevertheless, counsel were permitted to proceed, spawning this second major

23 litigation which included three motions for reconsideration and hours-upon-hours spent sifting

24 through voluminous submissions. Discretion has been exercised to award some but not all of the

25 massive sum demanded. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

26

Second, the government takes issue with some of the special master’s percentages and

27 amounts. For some items, the government argues that only 33 percent of the amount requested

28 should be awarded instead of the fifty percent recommended. For other items, the government

5

United States District Court For the Northern District of California

1 argues that no fees should be awarded instead of the sixteen percent recommended. For items

2 associated with Professor Kahn, the government argues that no fees should be awarded on

3 account of plaintiff’s “uncooperative behavior” during discovery. The government also argues

4 that certain mileage and subpoena expenses should not be awarded because plaintiff’s discovery

5 efforts were only partially successful or those depositions never occurred. Upon review of the

6 special master’s report, this order finds that the special master properly considered the

7 recoverable items and those so inextricably intertwined.

8

Third, the government objects to recovery for any “vague” entries. For example, the

9 government argues that plaintiff made no effort to provide detailed descriptions for some line

10 items beyond “[p]repare for trial.” The government also argues that no fees should be awarded

11 for “client communication” without a “showing that the activity for which plaintiff seeks to tax

12 the Government is compensable.” Plaintiff’s counsel respond that the government was not

13 entitled to privileged information. Upon review of the special master’s report, this order finds

14 that the special master properly awarded the recoverable amounts.

15

Fourth, to determine the amount of fees-on-fees, the government argues that the special

16 master should have multiplied the fees recovered by the percentage of merits fees initially sought

17 ($3.5 million) instead of the $1.6 million sought under the EAJA. This order finds that the special

18 master properly calculated the fees-on-fees amount, even though this order recognizes that

19 plaintiff’s counsel continue to demand all fees under market rates.

20

In sum, all of the government’s objections are OVERRULED.

21

4.

SPECIAL MASTER’S FEES AND EXPENSES.

22

A prior order appointed Attorney Gina Moon as the special master. As a service to the

23 Court and to save the parties expense, she agreed to cap her hourly rate at $200 per hour. She has

24 submitted an invoice for $ 27,481.50 in fees and expenses. The time for filing objections has

25 elapsed. Neither side objected to the entries on her invoice. This order finds that the special

26 master’s fees and expenses are reasonable. Pursuant to Rule 53(g), the special master’s

27 compensation is hereby FIXED.

28

6

United States District Court For the Northern District of California

1

The parties only dispute the allocation of the special master’s fees. This order finds that

2 plaintiff’s counsel shall pay 75% of the special master’s fees, save for one exception, as a

3 sanction for counsel’s failure to meet-and-confer before filing their motion, their obstinate refusal

4 to file revised declarations in accordance with the entitlement order, and their disregard for the

5 page limits. The exception is that plaintiff’s counsel shall pay 100% of the special master’s fees

6 for work done on the fees-on-fees-on-fees demand.

7

CONCLUSION

8

For the reasons stated herein, all objections are hereby OVERRULED. The special master’s

9 report and recommendation is hereby ADOPTED IN FULL. The November 20 hearing is hereby

10 VACATED (Dkt. Nos. 787, 789).

11

Accordingly, plaintiff’s counsel are hereby awarded $419,987.36 in attorney’s fees and

12 $34,768.71 in expenses. The special master’s compensation of $ 27,481.50 is hereby FIXED.

13

To ensure that the special master is promptly paid for her services, the payment procedure

14 shall be as follows. The government shall promptly send a check to the special master for 100%

15 of her fees. The government shall then subtract all of this amount (minus its portion of the special

16 master’s fees) from the amount to be paid to plaintiff’s counsel. The remainder is the amount due

17 plaintiff’s counsel. All payments shall be made by OCTOBER 30, unless there is a timely appeal

18 by either side in which the payments shall be made when all appeals are finally ended with no

19 follow up required. The parties shall file a joint status report by NOON ON OCTOBER 31, 2014.

20

This motion for attorney’s fees and expenses involved a Herculean task. The Court

21 extends its highest compliments and thanks Attorney Gina Moon for her excellent service and

22 willingness to serve at a reduced rate.

23

24

IT IS SO ORDERED.

25

26 Dated: October 9, 2014. 27

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

28

7

 
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DR. RAHINAH IBRAHIM, an individual,
Plaintiff-Appellant,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY; JEH JOHNSON,* in his official capacity as the Secretary of the Department of Homeland Security; TERRORIST SCREENING CENTER; CHRISTOPHER M. PIEHOTA, in his official capacity as Director of the Terrorist Screening Center; FEDERAL BUREAU OF INVESTIGATION; JAMES COMEY, in his official capacity as Director of the Federal Bureau of Investigation; LORETTA E. LYNCH, Attorney General, in her official capacity as Attorney General; ANDREW G. MCCABE, in his official capacity as Executive Assistant Director of the FBI’s National Security Branch; NATIONAL COUNTERTERRORISM

Nos. 14-16161 14-17272
D.C. No. 3:06-cv-545-
WHA
OPINION

* Current cabinet members and other federal officials have been substituted for their predecessors pursuant to Rule 43(c)(2) of the Federal Rules of Appellate Procedure.

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CENTER; NICHOLAS RASMUSSEN, in his official capacity as Director of the National Counterterrorism Center; DEPARTMENT OF STATE; JOHN KERRY, in his official capacity as Secretary of State; UNITED STATES OF AMERICA,
Defendant-Appellees.

Appeal from the United States District Court for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted June 14, 2016 San Francisco, California
Filed August 30, 2016
Before: Richard R. Clifton and Sandra S. Ikuta, Circuit Judges, and Royce C. Lamberth,** Senior District Judge.
Opinion by Judge Lamberth

** The Honorable Royce C. Lamberth, Senior District Judge for the U.S. District Court for the District of Columbia, sitting by designation.

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SUMMARY***

Equal Access to Justice Act
The panel affirmed in part and reversed in part the district court’s award of attorney’s fees and expenses pursuant to the Equal Access to Justice Act (“EAJA”) and the Supreme Court’s decision in Hensley v. Eckerhart, 461 U.S. 424 (1983), and remanded for further proceedings.
Dr. Rahinah Ibrahim commenced the underlying action seeking monetary and equitable relief against various state and federal officials based on her inclusion in the government’s terrorist databases, including the No-Fly List. After two dismissals and subsequent reversals and remands by this court, the district court held a week-long bench trial and concluded that Ibrahim had been improperly placed within the government’s databases. Ibrahim sought $3,360,057 in market-rate attorney’s fees and $293,860 in expenses.
The district court determined that Ibrahim was a prevailing party under EAJA, but further found that the government was substantially justified in some of its positions. The district court awarded Ibrahim $419,987.36 in fees and $34,768.71 in costs and expenses.
In light of the Supreme Court’s decision in Commissioner, INS v. Jean, 496 U.S. 154 (1990) (providing that courts are to make but one substantial justification determination on the case as a whole), the panel held that the
*** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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district court erred by making multiple substantial justification determinations and accordingly reversed. The panel also reversed the district court’s various reductions imposed on Ibrahim’s eligible fees arising from its incorrect substantial justification analysis. The panel affirmed the district court’s bad faith findings as well as its relatedness findings under Hensley . The panel also affirmed the district court’s striking of Ibrahim’s objections to the special master’s report on expenses.

COUNSEL
Marwa Elzankaly (argued), Jennifer Murakami, Ruby Kazi, Christine Peek, Elizabeth Pipkin, and James McManis, McManis Faulkner, San Jose, California, for PlaintiffAppellant.
Joshua Waldman (argued) and Sharon Swingle, Attorneys, Appellate Staff; Melinda Haag, United States Attorney; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C., for Defendants-Appellees.
Chet A. Kronenberg and JoAnne S. Jennings, Simpson Thacher & Bartlett LLP, Los Angeles, California, for Amici Curiae American Civil Liberties Union of California, Asian Americans Advancing Justice-Asian Law Caucus, Asian Americans Advancing Justice-Los Angeles, Center for Constitutional Rights, Electronic Frontier Foundation, and National Immigration Law Center.

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OPINION
LAMBERTH, Senior District Judge:
Plaintiff-Appellant Dr. Rahinah Ibrahim appeals the district court’s award of attorney’s fees and expenses pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 and the Supreme Court’s decision in Hensley v. Eckerhart, 461 U.S. 424 (1983). She contends the district court incorrectly found that the government had not acted in bad faith under EAJA section 2412(b) and therefore erred by declining to award market-rate fees. She further argues the district court erred by finding that the government’s conduct was substantially justified under EAJA section 2412(d)(1)(A) on discrete issues and at discrete stages of the litigation, rather than making a single determination on the case as a whole. Finally, she challenges the district court’s striking of her objections to a special master’s report on her claimed expenses. We have jurisdiction under 28 U.S.C. § 1291.
In light of the Supreme Court’s decision in Commissioner, INS v. Jean, 496 U.S. 154 (1990), we hold the district court erred by making multiple substantial justification determinations and accordingly reverse. We also reverse the district court’s various reductions imposed on Ibrahim’s eligible fees arising from its incorrect substantial justification analysis.
We however affirm the district court’s bad faith findings as well as its relatedness findings under Hensley v. Eckerhart, 461 U.S. 424 (1983). We also affirm the district court’s striking of Ibrahim’s objections to the special master’s report on expenses.

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I.
Fee disputes, the Supreme Court has warned, “should not result in a second major litigation.” Hensley, 461 U.S. at 437. But, unsurprisingly, they sometimes do, and the instant case is one such example.
In January 2006, Ibrahim commenced this action seeking monetary and equitable relief against various state and federal officials alleging 42 U.S.C. § 1983 claims, state law tort claims, and constitutional claims based on her inclusion in the government’s terrorist databases, including the No-Fly List. After two dismissals and subsequent reversals and remands by this Court, Ibrahim v. Dep’t of Homeland Sec., 538 F.3d 1250 (9th Cir. 2008) (“Ibrahim I”), Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983 (9th Cir. 2012) (“Ibrahim II”), the district court held a week-long bench trial.1
The district court concluded that Ibrahim had been improperly placed within the government’s databases.2 Specifically, it found the FBI agent who nominated Ibrahim to the government watchlists incorrectly filled out the nomination form. As a result, Ibrahim was placed on the NoFly List and another terrorist screening watchlist, rather than the lists on which the FBI agent had intended she be placed. Id. Accordingly, the court below ruled in favor of Ibrahim

1 At the time of trial, the only remaining claims were those against the federal defendants arising from their placement of Ibrahim on the government’s terrorism watchlists, as well as their revocation and subsequent denial of Ibrahim’s entry visas.
2 The district court’s factual findings are not challenged on appeal; unless otherwise noted, factual assertions contained herein reflect those findings.

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on her procedural due process claim, concluding the government’s nomination error involved a “conceded, proven, undeniable, and serious error by the government.” Although Ibrahim had been removed from the No-Fly List in early 2005, the government was ordered to remove any information contained in its databases associated with the 2004 nomination form, including those databases the FBI agent had intended Ibrahim be placed on, because the nomination form had been incorrectly filled out. It also ordered the government to affirmatively inform Ibrahim she was no longer on the No-Fly List because the government’s Travel Redress Inquiry Plan—the only means by which an individual may challenge their suspected placement on the No-Fly List—failed to affirmatively disclose whether she had indeed been placed on the list incorrectly and whether she had been removed as a result.
The district court also granted unasked-for relief under our now-vacated precedent in Din v. Kerry, 718 F.3d 856, 863 (9th Cir. 2013), vacated, 135 S. Ct. 2128 (2015) by ordering the government to identify the specific subsection under section 212(a)(3)(B) of the Immigration and Nationality Act that rendered Ibrahim ineligible for a visa in 2009 and 2013. Lastly, on additional independent grounds, the district court granted further relief by finding that the consular officer who denied Ibrahim her visa erred in indicating she could not apply for a discretionary waiver of her ineligibility. The district court ordered the government to permit such a waiver application.
The district court did not reach the remainder of Ibrahim’s other claims which included her First Amendment, substantive due process, equal protection, and Administrative Procedure Act claims because, in its view,

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“even if successful, [they] would not lead to any greater relief than already ordered.”
Thereafter, the parties and the court engaged in a lengthy and contentious fee dispute. In total, Ibrahim sought $3,630,057.50 in market-rate attorney’s fees and $293,860.18 in expenses. Adopting the recommendations of a special master, the district court ultimately awarded Ibrahim $419,987.36 in fees and $34,768.71 in costs and expenses. Ibrahim challenges both the underlying legal framework the district court utilized to determine the fees she was eligible to recover, as well as the district court’s adoption of various reductions applied to those eligible fees by the special master.
II.
We begin with the district court’s application of the EAJA.
Congress passed the EAJA “to eliminate for the average person the financial disincentive to challenge unreasonable governmental actions.” Jean, 496 U.S. at 163. To that end, the EAJA permits a “prevailing party” to recover fees and other expenses from the government unless the government demonstrates that its position was “substantially justified.”3 28 U.S.C. § 2412(d)(1)(A); Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005) (quoting Gonzales v. Free Speech Coal., 408 F.3d 613, 618 (9th Cir. 2005)). The EAJA limits attorney’s fees to “the prevailing market rates for the kind and quality of the services furnished” but, subject to

3 The EAJA also provides for an exception where “special circumstances” would make a fee award to the prevailing party unjust. 28 U.S.C. § 2412(d)(1)(A).

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exception, does not permit an award in excess of $125 per hour. 28 U.S.C. § 2412(d)(2)(A). One such exception to that cap applies where the court finds the government acted in bad faith. Rodriguez v. United States, 542 F.3d 704, 709 (9th Cir. 2008).
After determining Ibrahim was a prevailing party, the court below found that the government was substantially justified respecting its pre-Ibrahim II standing arguments, its defense against Ibrahim’s visa-related claims, and its various privilege assertions. It disallowed fees associated with those issues. It found the government’s conduct otherwise was not justified.
It further ruled that the government had not acted in bad faith, and with one exception not relevant here, imposed the EAJA’s hourly cap to Ibrahim’s fees.
Ibrahim contends these findings were erroneous. We address each in turn.
A.
We review a district court’s substantial justification determination for abuse of discretion. Gonzales, 408 F.3d at 618. We review its interpretation of the EAJA de novo. Edwards v. McMahon, 834 F.2d 796, 801 (9th Cir. 1987).
The government’s “position” when considered within the EAJA context includes both the government’s litigation position as well as the “action or failure to act by the agency upon which the civil action is based.” 28 U.S.C. § 2412(d)(1)(B). Hence, we have often articulated the substantial justification test as encompassing two lines of inquiry: one directed towards the government’s original action, and the other towards the government’s litigation

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position defending that action. See, e.g., Gutierrez v. Barnhart, 274 F.3d 1255, 1259 (9th Cir. 2001). But it remains true that the test is an inclusive one; it is the government’s position “as a whole” that must have “a reasonable basis in fact and law.” Id. at 1261.4
Citing our decisions in Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008), and Li v. Keisler, 505 F.3d 913, 918 (9th Cir. 2007), the court below concluded “[t]he government must show that its position was substantially justified at each stage of the proceedings in order to avoid an award of EAJA fees.” It went on to invoke our decision in Corbin v. Apfel, 149 F.3d 1051, 1053 (9th Cir. 1998), for the proposition that in exceedingly complex cases, a court may appropriately determine whether the government was substantially justified at each “stage” of the litigation and make a fee award apportioned to those separate determinations. It accordingly disallowed fees for discrete positions5 taken by the government because, in its view, the government’s positions in each instance were substantially justified. It was error to do so.
In Jean, 496 U.S. at 161–62, the Supreme Court broadly pronounced that the EAJA “favors treating a case as an

4 And though we have held generally that “a reasonable litigation position does not establish substantial justification in the face of a clearly unjustified underlying action,” we have declined to adopt a per se rule foreclosing that possibility. United States v. Marolf, 277 F.3d 1156, 1163–64 and n.5 (9th Cir. 2002). We have likewise left open the possibility that reasonable underlying conduct may not be sufficient grounds to preclude a fee award in the face of otherwise unreasonable litigation tactics. Id.
5 As noted, these include the government’s pre-Ibrahim II standing assertions, the government’s defense of its revocation of Ibrahim’s visa, as well as the government’s privilege assertions.

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inclusive whole, rather than as atomized line-items.” Noting section 2412(d)(2)(D)’s use of the term “position” in the singular coupled with Congress’s “emphasis on the underlying Government action,” the Court concluded the EAJA substantial justification determination acted as a “onetime threshold for fee eligibility.” Id. at 159–60 and n.7. Accordingly, the Jean Court rejected petitioners’ argument that the court was required to make two substantial justification determinations: one as to respondents’ fees for time and expenses incurred in applying for fees, and another as to fees in the litigation itself. Id. at 157.
Jean, then, we think is clear: courts are to make but one substantial justification determination on the case as a whole. That is not to say a court may not consider the government’s success at various stages of the litigation when making that inquiry, but those separate points of focus must be made as individual inquiries collectively shedding light on the government’s conduct on the whole, rather than as distinct stages considered in isolation. Indeed in United States v. Rubin, 97 F.3d 373, 375–76 (9th Cir. 1996), we affirmed a district court’s treating the case as a whole in disallowing fees although there was some indication at least part of the government’s conduct was not substantially justified. In doing so, we cited favorably to Jean’s recognition that the EAJA favors treating the case as an “inclusive whole.” Id. at 375 (quoting Jean, 496 U.S. at 161– 62).
We are aware our sister courts have adopted contrary views in this regard. The D.C. Circuit, for instance, has rejected a reading of Jean that would preclude a claim-byclaim determination on the ground that such a rule would render the EAJA a “virtual nullity” because government conduct is nearly always grouped with or part of some

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greater, and presumably justified, action. Air Trans. Ass’n v. F.A.A., 156 F.3d 1329, 1332 (D.C. Cir. 1998). In the same vein, the Seventh Circuit has cautioned against taking “judicial language out of context,” reasoning that Jean “does not address the question whether allocation is permissible under the [EAJA]” to allow fees for the part of the government’s case that was not substantially justified. Gatimi v. Holder, 606 F.3d 344, 350 (7th Cir. 2010).6
We do not share the fear, however, that a single-inquiry rule will render the EAJA “a virtual nullity.” Air Trans. Ass’n, 156 F.3d at 1332. The possibility that an evaluation of the government’s conduct can be so “‘holistic,’” id., so as to preclude a finding that the government was ever without substantial justification surely exists,7 but such an application would run afoul of the basic principle that courts interpret and apply statutes “in light of the overall purpose and structure of the whole statutory scheme.” United States v. Neal, 776 F.3d 645, 652 (9th Cir. 2015).
Nor are we concerned that a single-inquiry rule would disallow the recovery of fees even where the government may have been unjustified at certain stages or in discrete positions it took throughout the lifetime of the case. As the

6 Some circuits, like the Third Circuit, have required district courts to “evaluate every significant argument made by an agency” in order to permit an appellate court “to review a district court’s decision and determine whether, as a whole, the Government’s position was substantially justified.” Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 131 (3d Cir. 1993).
7 Because, on a general level, almost all government action is carried out through authorized avenues pursuant to some legitimate purpose. Analyzed at that bird’s-eye level, it is true that almost all government action is “usually substantially justified.” Air Trans. Ass’n, 156 F.3d at 1332.

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Supreme Court has noted, “substantially justified” in this context only requires justification “to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). That formulation implicitly permits the government some leeway, so long as its conduct on the whole remained justified. Whether those portions of the case on which the government was not substantially justified are sufficient to warrant fee shifting on the case as a whole is a question left to the evaluating court’s discretion. But that a situation may arise where a court may deny a prevailing party fees even though the government was not substantially justified as to every position it took does not trouble us. Such a result seems expressly contemplated by the EAJA’s use of the qualifying term “substantial” rather than “total” or “complete.” 28 U.S.C. § 2412(d)(1)(A).
What’s more, “[a]voiding an interpretation that ensures that the fee application will spawn a second litigation of significant dimension is central to Supreme Court jurisprudence on fee-shifting statutes.” Hardisty v. Astrue, 592 F.3d 1072, 1078 (9th Cir. 2010) (internal punctuation omitted) (quoting Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791 (1989)). An approach permissive of separate substantial justification inquiries runs afoul of that interpretive paradigm.
Nor do we see any conflict with our decisions in Corbin, 149 F.3d at 1053, or its progeny in which we have upheld EAJA fee awards in the social security context where the award was apportioned to each successive stage of the litigation. As we noted in Corbin, following the Supreme Court’s decision in Shalala v. Schaefer, 509 U.S. 292

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(1993),8 “it became possible for a [social security] claimant to be deemed a ‘prevailing party’ for EAJA purposes prior to the ultimate disposition of his disability claim.” Corbin, 149 F.3d at 1053. As a result, we shifted focus from “considering only [whether the government was substantially justified as to] the ultimate issue of disability to considering the justification of the government’s position at the discrete stage in question.” Id. We have never applied Corbin outside of the social security context, nor do we see any reason to extend it to a case like this one where there was no possibility Ibrahim could be considered a prevailing party prior to the ultimate resolution of her claims.

In sum, courts assessing whether the government’s position under the EAJA was substantially justified should engage in a single inquiry focused on the government’s conduct in the case as a whole. We therefore hold the district court erred in disallowing fees relating to discrete litigation positions taken by the government.

8 At issue in Schaefer was the point at which the EAJA’s 30-day clock for a fee application begins to run following a successful social security appeal after the district court makes a sentence-four remand under 42 U.S.C. § 405(g) but fails to enter a final judgment. 509 U.S. at 294– 95. The Supreme Court held that under such facts, the time for a fee application does not expire while the district court’s order remains appealable, and in light of the absence of a final judgment, such orders remain appealable even through the remanded proceedings, therefore making a post-remand EAJA application timely. Id. at 303. The Supreme Court noted, however, that it was error for the district court to fail to enter a final judgment upon the sentence-four remand. Id. at 300–01. Schaefer’s upshot, therefore, was that sentence-four remands were to be accompanied by final judgments, which in turn, would require EAJA fee applications to be filed before the proceedings on remand were concluded.

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B.
We next address Ibrahim’s assertion that the district court erred in failing to find the government acted in bad faith and by consequently imposing the EAJA’s hourly rate cap on the majority of her recoverable hours.9
The EAJA mandates that the “United States . . . be liable for such fees and expenses to the same extent that any other party would be liable under the common law.” 28 U.S.C. § 2412(b). The common law permits a court to assess attorney’s fees against a losing party that has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Chambers v. NASCO, Inc., 501 U.S. 32, 45–46 (1991). We hold the government to the same standard under the EAJA, Rodriguez, 542 F.3d at 709, and a finding that the government acted in bad faith permits a market-rate recovery of attorney’s fees, Brown v. Sullivan, 916 F.2d 492, 495 (9th Cir. 1990).
“Under the common law, a finding of bad faith is warranted where an attorney knowingly or recklessly raises a frivolous argument, or argues a meritorious claim for the purpose of harassing an opponent.” Rodriguez, 542 F.3d at 709 (internal punctuation omitted) (internal quotation marks omitted) (quoting Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 649 (9th Cir. 1997)). “Mere recklessness does not alone constitute bad faith; rather, an award of attorney’s fees is justified when reckless conduct is combined with an additional factor such as frivolousness, harassment, or an improper purpose.” Id. (internal quotation marks omitted)

9 The district court permitted an upward departure for attorney James McManis due to his distinctive knowledge and skills.

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(quoting Fink v. Gomez, 239 F.3d 989, 993–94 (9th Cir. 2001)).
Ibrahim raises several arguments in support of her contention that the government acted in bad faith both in the conduct leading to and during this action. She first argues that the “Government’s refusal to acknowledge and permanently correct the injustice to Ibrahim, and its apparent lack of concern that others may have suffered harm from similar errors, show bad faith from the inception of this case.” Her next contention focuses on the government’s raising of its standing defense after our decision in Ibrahim II, in which we held Ibrahim had Article III standing to pursue her claims. 669 F.3d at 994. She also claims the government’s invocation of the state secrets privilege was made in bad faith and analogizes the government’s conduct here with that in Limone v. United States, 815 F. Supp. 2d 393 (D. Mass. 2011). Ibrahim further alleges the government barred her and her daughter from entering the United States in an effort to prevent them from offering testimony at trial. And lastly, Ibrahim insists the district court clearly erred by failing to review the record in its entirety, and instead “examin[ed] examples of bad conduct in isolation and conclud[ed] each one individually did not show bad faith, rather than examining the totality of the circumstances.”
We review the district court’s bad faith findings for clear error. Rodriguez, 542 F.3d at 709. “A finding is clearly erroneous if it is ‘(1) ‘illogical’, (2) ‘implausible’, or (3) without ‘support in inferences that may be drawn from the facts in the record.’’” Crittenden v. Chappell, 804 F.3d 998, 1012 (9th Cir. 2015) (quoting United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)). “In applying the clearly erroneous standard to the findings of a district court sitting without a jury, [an] appellate court[] must

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constantly have in mind that their function is not to decide factual issues de novo,” even where it is “convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson v. City of Bessemer City, 470 U.S. 564, 573–74 (1985). “If the district court’s account of the evidence is plausible in light of the record viewed in its entirety,” we must affirm. Id. We find that the district court’s account of the evidence is plausible in the light of the record, and therefore affirm.
Respecting Ibrahim’s first argument, it appears she is making two distinct claims: first, that the government wrongly placed her on its watchlists and therefore acted in bad faith, and second, that its defense of such placement was bad faith because it knew its conduct was wrongful. Both contentions are unavailing.
The district court found that at the time the government placed Ibrahim on its watchlists, including the No-Fly List, there existed “no uniform standard for [watchlist] nominations.” It was not until after this suit was instituted that the government adopted the “reasonable suspicion” standard for placement on its watchlists. And although the government admits that Ibrahim did not meet that standard at the time of her placement, that fact alone is insufficient to reverse the district court here. The district court expressly declined to find that the government’s initial interest in Ibrahim was due to her race, religion or ethnicity.10 Absent evidence Ibrahim’s inclusion on the watchlists was otherwise improper, it was not clearly erroneous for the district court to find the government’s underlying placement of Ibrahim on its watchlists did not constitute bad faith.

10 A finding Ibrahim does not challenge on appeal.

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Nor was the government’s defense of its partially mistaken placement bad faith. Prior to this suit no court had held a foreign national such as Ibrahim possessed any right to challenge their placement—mistaken or not—on the government’s terrorism watchlists. It accordingly could not have been bad faith to assert, as the government did, that Ibrahim possessed no such right. And more importantly, it is not true that the government defended, as Ibrahim claims, its placing her on the No-Fly List. At the time this action was instituted in early 2006, the government had already removed Ibrahim from the No-Fly List more than a year prior, and, with one exception, the lists on which she did appear at that time were the same lists on which the nominating agent had intended she be placed.11 Therefore, to the extent the government defended Ibrahim’s placement on those lists, no colorable argument can be made such a defense was frivolous or made with improper purpose.12

11 The district court found the nominating agent had intended to place Ibrahim within the Consular Lookout and Support System (“CLASS”) List, the TSA Selectee List, the TUSCAN List, and the TACTICS List, but instead placed Ibrahim on the No-Fly List and the Interagency Border Information System (“IBIS”) database. While the district court found the government removed Ibrahim from the No-Fly List in January 2005, it also found she remained on the Selectee List and CLASS Lists at that time. It found that in December 2005, she was removed from the Selectee List, but added to the TUSCAN List and TACTICS List. Thus, when this action was instituted, she was on the CLASS, TACTICS and TUSCAN Lists, which were, as the district court found, the same lists on which the nominating agent had intended she be placed. The district court made no finding, however, whether Ibrahim was ever removed from the IBIS database.
12 That the government would later determine Ibrahim did not meet the reasonable suspicion standard, which was adopted subsequent to Ibrahim’s nomination to the lists, and remove her from its watchlists is

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The same can be said with respect to the government’s raising of the standing defense after our decision in Ibrahim II. Ibrahim fails to point to any evidence indicating the government reraised standing as a defense at summary judgment and trial with vexatious purpose. What’s more, the government correctly points out that there was at minimum a colorable argument that the different procedural phases of the case rendered their subsequent standing motions nonfrivolous.
Ibrahim’s claim that the government’s privilege assertions were made in bad faith is also unconvincing. As the district court noted, the government was successful on many of its privilege assertions, and on that basis it declined to find the government’s invocation of privilege was frivolous. Ibrahim likens the government’s conduct in this case with that in Limone v. United States, where a Massachusetts district court found the government had acted in bad faith by “block[ing] access to the relevant documents,” and “hiding behind specious procedural arguments,” which “culminat[ed] in a frivolous interlocutory appeal.” 815 F. Supp. 2d at 398. The conduct in Limone included a refusal to disclose relevant information, even in camera, until ordered by the court to do so. Id. Ibrahim sees similar conduct in this case through the government’s refusal to produce basic information without a court order, its objections to questions at depositions, and its objections to discussing publicly available information.

of no relevance. Ibrahim did not possess—nor did the district court find her to possess—a right to challenge the substantive basis for her placement on the government’s watchlists. The district court’s relief was explicitly limited to the government’s post-deprivation procedural shortcomings and expressly disavowed “[a]ny other rule requiring reviewability before concrete adverse action.”

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But Ibrahim forgets that the government was ultimately successful on at least some of its privilege assertions, and absent evidence, of which Ibrahim has pointed to none, that the government’s assertions on those unsuccessful occasions were frivolous or made with improper purpose, it could not have been clear error to decline to find the government acted in bad faith. Nor was the government’s action here analogous to that in Limone where it had refused to grant its own lawyers access to the allegedly privileged documents which resulted in counsel’s inability to respond to discovery motions and court orders for nearly two years. See id. at 398, 408. There is nothing similar in this case.
Nor is there any evidence in the record demonstrating the government prevented Ibrahim from entering the United States to offer testimony in this suit, and with respect to her daughter, Ibrahim fails to explain why there was any error in the district court’s determination that the government’s initial refusal to allow her into the country was anything but a mistake, and a quickly corrected one at that. The district court’s findings here were not clearly erroneous.
Lastly, Ibrahim’s argument that the district court erred by making piecemeal bad faith determinations is unpersuasive. Her sole authority on point is our decision in McQuiston v. Marsh, 707 F.2d 1082, 1086 (9th Cir. 1983), superseded by statute as recognized by Melkonyan v. Sullivan, 501 U.S. 89, 96 (1991), where we made the unremarkable observation that “[b]ad faith may be found either in the action that led to the lawsuit or in the conduct of the litigation.” She fails, however, to point to any case where we have elevated that observation to edict. Rather, we have consistently required fee awards based on bad faith to be “traceable” to the conduct in question. See, e.g., Rodriguez, 542 F.3d at 713. It was therefore proper for the

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district court to consider each claimed instance of bad faith in order to determine whether the associated fees should be subject to a market-rate increase.
III.
We turn to the district court’s fee reductions imposed in accordance with the Supreme Court’s decision in Hensley, 461 U.S. 424.
Though a prevailing party may be eligible for fees under the EAJA,13 “[i]t remains for the district court to determine what fee is ‘reasonable.’” Id. at 433. And as the Supreme Court noted, and we have often repeated, “the most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Schwarz v. Sec. of Health & Human Servs., 73 F.3d 895, 901 (9th Cir. 1995) (internal punctuation omitted) (quoting Hensley, 461 U.S. at 433). In the case of fees sought under the EAJA, the “reasonable hourly rate” is capped by the EAJA itself. 28 U.S.C. § 2412(d)(2)(A). Thus, the equation for determining the reasonable amount of fees awardable in cases such as this is the number of hours reasonably expended multiplied by the applicable EAJA rates. The resulting figure—the lodestar figure—forms the basis for the remainder of the Hensley determination.

13 Though Hensley addressed fees in the context of the Civil Rights Attorney’s Fees Act of 1976, 42 U.S.C. § 1988, the Court went on to hold in Jean that the assessment of reasonable fees under the EAJA is “essentially the same.” 496 U.S. at 160–61. We have since applied Hensley to EAJA fee awards. See, e.g., Atkins v. Apfel, 154 F.3d 986, 989–90 (9th Cir. 1998).

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But where a plaintiff has only achieved limited success, not all hours expended on the litigation are eligible for inclusion in the lodestar, and even those that are eligible may be subject to a discretionary reduction. Hensley, 461 U.S. at 436; Schwarz, 73 F.3d at 901. Thus, under Hensley we have required district courts to follow a two-step process where a plaintiff’s success is limited: first, the court must determine whether the claims upon which the plaintiff prevailed are related to the unsuccessful claims. Webb v. Sloan, 330 F.3d 1158, 1168 (9th Cir. 2003). That inquiry rests on whether the “related claims involve a common core of facts or are based on related legal theories.” Id. Time spent on unsuccessful claims the court deems related are to be included in the lodestar, while “[h]ours expended on unrelated, unsuccessful claims should not be included” to the extent those hours can be “isolated.” Id. at 1168, 1169. Thus, in addition to time reasonably spent on successful claims, potentially recoverable under Hensley are those hours expended on related but unsuccessful claims as well as those hours pertaining to unrelated, unsuccessful claims that cannot be severed cleanly from the whole.
Second, a court must consider “whether ‘the plaintiff achieved a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award.’” Sorenson, 239 F.3d at 1147 (internal punctuation omitted) (quoting Hensley, 461 U.S. at 434).14 Here, “a district court ‘should focus on the significance of the overall relief

14 If the district court finds that a plaintiff was wholly successful, it must still evaluate whether the degree of success obtained justifies an award based on the number of hours reasonably expended, whereas a “limited success” finding necessitates the intermediary step of determining which claims were related or unrelated before weighing the degree of success obtained against the total number of hours reasonably expended.

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obtained by the plaintiff in relation to the hours reasonably expended on the litigation.’” Id. (quoting Hensley, 461 U.S. at 435).
If the court concludes the prevailing party achieved “excellent results,” it may permit a full fee award—that is, the entirety of those hours reasonably expended on both the prevailing and unsuccessful but related claims. Hensley, 461 U.S. at 435; Schwarz, 73 F.3d at 905–06. On the other hand, where a plaintiff has not achieved results warranting a fully recoverable fee, the district court may apply a downward adjustment to the lodestar by “award[ing] only that amount of fees that is reasonable in relation to the results obtained.”15 Hensley, 461 U.S. at 440.
Ibrahim was successful below on her procedural due process claim. The district court, however, expressly refused to reach her remaining claims—which included her substantive due process, equal protection, First Amendment, and Administrative Procedure Act claims because “those arguments, even if successful, would not lead to any greater relief than already ordered.” It accordingly treated those claims as having been unsuccessful.
It awarded full fees and expenses for those hours Ibrahim’s counsel incurred litigating her procedural due process claim. Because it found that her unsuccessful substantive due process and Administrative Procedure Act claims were related to her successful claim, it also awarded fees and expenses incurred prosecuting those claims. It declined to make any award for those fees and expenses

15 It is at this step for instance that district courts apply a reduction for the inclusion of hours associated with unrelated, unsuccessful claims that could not be easily segregated. Webb, 330 F.3d at 1169.

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associated with Ibrahim’s First Amendment and equal protection claims because they “were not related to the procedural due process claim (for which [Ibrahim] received relief) because they involve different evidence, different theories, and arose from a different alleged course of conduct.”
Ibrahim attacks the district court’s Hensley reductions on two grounds: first, she contends it was error to conclude her First Amendment and equal protection claims were unrelated to her successful procedural due process claim. Second, she argues the “excellent results” she obtained in this litigation support a fully compensable fee. We reject both assertions.
We review a district court’s award of fees under Hensley for abuse of discretion, including its ruling that a party achieved only limited success, Thomas v. City of Tacoma, 410 F.3d 644, 649 (9th Cir. 2005), as well as its finding that unsuccessful claims are unrelated to the claims upon which a plaintiff prevailed, Schwarz, 73 F.3d at 902. Unrelated claims are those that are both factually and legally distinct. Webb, 330 F.3d at 1168. In Schwarz, we observed “the test [for the factual relatedness of claims] is whether relief sought on the unsuccessful claim is intended to remedy a course of conduct entirely distinct and separate from the course of conduct that gave rise to the injury on which the relief [is] granted.” 73 F.3d at 903 (internal quotation marks omitted) (quoting Thorne v. City of El Segundo, 802 F.2d 1131, 1141 (9th Cir. 1986)). Thus, “the focus is to be on whether the unsuccessful and successful claims arose out of the same course of conduct,” or as the Supreme Court put it: the same “common core.” Id. (internal quotation marks omitted); Hensley, 461 U.S. at 435. “If they didn’t, they are unrelated.” Schwarz, 73 F.3d at 903.

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The test does not require that the facts underlying the claims be identical. The concept of a “common core” or “common course of conduct” is permissive of the incidental factual differences underlying distinct legal theories. Were that not the case, rare would be the occasion where legally distinct claims would qualify as related under Hensley. But it remains true that the work done on the unsuccessful claims must have contributed to the ultimate result achieved. Hensley, 461 U.S. at 435; Schwarz, 73 F.3d at 904.
The court below disallowed fees for Ibrahim’s First Amendment and equal protection claims because they were based on different legal theories, evidence, and “alleged” courses of conduct. Ibrahim contends that reasoning was erroneous and in support cites Webb, 330 F.3d 1158, where we addressed an EAJA fee award arising out of a suit for false arrest, malicious prosecution, and false imprisonment. There we found that the “common course of conduct” was the plaintiff’s “arrest, detention, and prosecution.” Id. at 1169. In light of that formulation, we noted that the plaintiff’s unsuccessful false arrest claim was “unquestionably” related to his successful false imprisonment and malicious prosecution claims because they each sprang from that same underlying conduct. Id. We therefore concluded that work done on the plaintiff’s unsuccessful false imprisonment claim “could have contributed to the final result achieved” and accordingly treated such work as being related for Hensley purposes. Id.
What Ibrahim misses—and what distinguishes this case from Webb—is the mutually exclusive nature of the claims presented here. As a predicate to the Webb plaintiff’s false imprisonment claim, the plaintiff had to be arrested. Work done investigating and developing the factual record on the false arrest claim would therefore necessarily further the

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plaintiff’s successful false imprisonment claim. Likewise, the plaintiff’s malicious prosecution claim was inextricably tied to the prosecutor’s state of mind in bringing the spurious charges, which in turn was heavily reliant on what the prosecutor knew about the circumstances surrounding plaintiff’s arrest. Most work attributable to the plaintiff’s false arrest claim, therefore, likely also contributed to the plaintiff’s successful claims.
The same cannot be said for Ibrahim’s claims. In light of the district court’s findings, Ibrahim’s First Amendment and equal protections claims were mutually exclusive with her procedural due process claims. That is, if the government negligently placed Ibrahim on its watchlists because it failed to properly fill out a form, then it could not at the same time have intentionally placed Ibrahim on the list based on constitutionally protected attributes Ibrahim possesses, and vice versa.16 These mental states are mutually exclusive. Therefore, it was not an abuse of discretion to find that Ibrahim’s unsuccessful claims were unrelated, because although the work done on those claims could have contributed to her ultimately successful claim, the facts and legal theories underlying Ibrahim’s claims make that result unlikely.
We note our prior decisions in this sphere are somewhat opaque. In Schwarz, we detailed our previous decisions’ shifting focus on the degree to which the unsuccessful and successful claims arose out of the same common course of conduct and the degree to which the work done on unsuccessful claims contributed to the results achieved.

16 The district court expressly declined to find that the government’s initial interest in Ibrahim was due to her nationality or her religious beliefs. Ibrahim does not challenge that conclusion before this Court.

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73 F.3d at 903 (citing Thorne, 802 F.2d at 1141; Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604, 619 (9th Cir. 1993); Herrington v. Cty. of Sonoma, 883 F.2d 739, 747 (9th Cir. 1989); Cabrales v. Cty. of Los Angeles, 935 F.2d 1050, 1052 (9th Cir. 1991); and O’Neal v. City of Seattle, 66 F.3d 1064, 1068–69 (9th Cir. 1995)). Ultimately in Schwarz, we affirmed the district court’s decision to reduce the lodestar for work done on unsuccessful claims both because the sets of claims there were both factually and legally dissimilar and because the efforts spent on the unsuccessful claims did not contribute to the plaintiff’s success. Id. at 904. Nevertheless in Webb, we characterized our decision in Schwarz as “reaffirm[ing] that the focus is on whether the claims arose out of a common course of conduct.” 330 F.3d at 1169. Here, Ibrahim’s First Amendment and equal protection claims were based on her allegations that the government intentionally put her name on the lists based on constitutionally protected attributes, while her procedural due process claims were based on her allegations that the government failed to provide adequate procedures to remove her name from its lists. Accordingly, the district court did not err in concluding that these claims were based on both different alleged courses of conduct and different legal theories. Further, in light of our decisions on the matter, we likewise believe it cannot be error for a district court to also consider—as the court below did—that efforts on unsuccessful claims did not contribute to the success obtained.
In addition, even if it were the case that Ibrahim’s unsuccessful claims arose out of the same factual context as her successful claim, it is not true that the work expended on those claims necessarily contributed to her ultimate success. We therefore decline to find the district court abused its

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discretion by concluding Ibrahim was ineligible to recover fees for work on those claims.
We also reject Ibrahim’s second contention that the “excellent results” she obtained should entitle her to a fully compensatory fee. The district court permitted Ibrahim to recover fully for her Administrative Procedure Act and substantive due process claims because, though unsuccessful, they were related to her procedural due process claim. However, in doing so, it made no explicit mention of “excellent results,” though such a recovery by necessity implies an “excellent results” finding. See Schwarz, 73 F.3d at 905–06. And in light of our affirmance of the district court’s ruling with respect to Ibrahim’s First Amendment and equal protection claims, a ruling that Ibrahim also obtained excellent results on two of her four claims would have no effect on her potentially recoverable fee award.
We find unconvincing, however, the government’s contention that the district court’s overall fee reduction— including its EAJA reductions—should be affirmed because the district court could have imposed such a reduction under Hensley’s second step. The government claims that any errors contained in the district court’s EAJA application and relatedness findings is harmless. The government, however, forgets that although the district court enjoys substantial discretion in fixing an appropriate fee under Hensley, we have imposed the modest requirement that it “explain how it came up with the amount.” Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). “The explanation need not be elaborate, but it must be comprehensible . . . [T]he explanation must be concise but clear.” Id. (internal quotation marks omitted) (quoting Hensley, 461 U.S. at 437). Where the difference between the fee award requested

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and the fee award granted is negligible, “a somewhat cursory explanation will suffice,” but where the disparity is greater, “a more specific articulation of the court’s reasoning is expected.” Id. Whatever the actual basis for the district court’s reductions here, there is certainly no room for argument that it clearly and concisely explained that its reductions to Ibrahim’s fee award were justified in light of the success she obtained. Absent such an explanation from the district court, we cannot take a rough justice approach and sua sponte decide that the district court’s mistaken fee reductions would be equivalent to the fee reductions it would have made at Hensley’s second step.
IV.
Following its fee entitlement determination, the district court appointed a special master to fix Ibrahim’s fee award.17 The special master went on to recommend a number of discretionary reductions to Ibrahim’s fee request due to block-billing, vagueness, and lack of billing judgment. The special master also made reductions for failure to demonstrate that the work claimed was associated with recoverable claims or issues. The district court adopted these reductions. It also struck Ibrahim’s objections to the special master’s report and recommendation on expenses for failure to follow page limits.
Because the reductions recommended by the special master and adopted by the district court were largely rooted in the district court’s EAJA determination, we agree with Ibrahim that those findings should be revisited if the district court once more determines Ibrahim is entitled to fees.

17 Though Ibrahim objected to the special master’s appointment, she does not press that issue on appeal.

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Ibrahim’s contention that the district court abused its discretion in striking her objections to the special master’s report and recommendation on expenses, however, is unavailing.
In its order appointing the special master, the district court also ordered the special master to file a report and recommendation regarding fees and expenses, and imposed a ten-page limit on the parties’ objections to that report and recommendation. It further required each party to file an appendix of all relevant communication with the special master.
The special master, however, filed two reports and recommendations, one focusing on fees and the other on expenses. In response, Ibrahim filed a ten-page set of objections to each, along with a one-page “statement.”
The district court struck Ibrahim’s objections to the special master’s report and recommendation on expenses for having filed “two ten-page briefs, a 234-page declaration with exhibits, and a one-page ‘statement,’” without also moving for a page extension. It found her filings were not good faith attempts to abide by its orders.
On appeal Ibrahim argues it was improper to strike her objections because the special master filed two reports and recommendations, and, therefore, it was reasonable to file a ten-page set of objections to each.18 She alternatively argues

18 Ibrahim also argues that the district court’s striking of her expenses resulted only in those objections being “overruled.” That assertion is patently contradicted by the record. In its order striking Ibrahim’s objections, the district court stated: “No objections to the special master’s report regarding expenses are preserved because counsel failed to abide by the rules.”

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that the district court’s imposition of a ten-page limit on objections to reports and recommendations totaling hundreds of pages was also an abuse of discretion.
District courts have the inherent power to strike items from their docket for litigation conduct. Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) (citing Hernandez v. City of El Monte, 138 F.3d 393, 398 (9th Cir. 1998)). We review the exercise of that power for abuse of discretion and the factual determinations underpinning such exercise for clear error. Id. at 404; Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg. Corp., 982 F.2d 363, 367 (9th Cir. 1992).
Here, it was not clearly erroneous to conclude Ibrahim failed to abide by the district court’s page limits. While it is true that the special master filed two reports and recommendations and the district court’s order might have been misinterpreted or misunderstood by plaintiff’s counsel, it is also true that the order stated “all objections” should not exceed ten pages. Thus, whether the special master filed a single or several reports and recommendations, the district court’s order imposed a ten-page limit on objections. Indeed, the government restricted its objections to ten pages. We therefore cannot find that it was clearly erroneous to conclude Ibrahim failed to abide by the district court’s page restrictions.
Nor do we see the striking of Ibrahim’s objections in response to that failure as being an abuse of discretion. The order in question also required Ibrahim to resubmit her fee request and imposed requirements on that resubmission in order to facilitate the district court’s efforts to fix her award.
Ibrahim obstinately refused to abide by those requirements, and instead, filed multiple motions to

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reconsider the district court’s fee entitlement determinations.19 In light of Ibrahim’s repeated failures to follow the very same order, we cannot conclude the district court abused its discretion by striking her objections to the special mater’s report on expenses.
Finally, we refuse to address Ibrahim’s contention that it was an abuse of discretion to limit her objections to ten pages. Where a party believes a district court has issued an improper order, their remedy is to raise that issue on appeal. United States v. Galin, 222 F.3d 1123, 1127 (9th Cir. 2000). In the meantime, however, they are to either abide by the order, file an interlocutory appeal, if available, or move for reconsideration. Id. Ibrahim did none of those things. Rather, she simply exceeded the district court’s page limits while “objecting” to those selfsame limits in a footnote. A party will not be heard to complain of an order on appeal by which it failed to abide. We therefore do not reach the merits of Ibrahim’s claim here.
V.
Any fee dispute is tedious, and this one is no exception. Though we are reluctant to require the district court to revisit its findings in this already protracted satellite litigation, we

19 Ibrahim offered multiple rationales for her refusal to follow the district court’s order that she resubmit her fee request. Initially, she argued that counsel had previously been awarded fees based on similar billing records. She also argued she would be unable to categorize projects in the manner directed by the district court because “that is not the way the time was recorded or billed.” At oral argument, however, she argued she could not comply with the district court’s order because it was predicated on legally erroneous conclusions. We find none of these rationales persuasive because Ibrahim, in the end, failed to comport with the order.

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see no other alternative. We pause to note, however, that we offer no view on the appropriateness of the amount already awarded by the district court in this case. It may well be Ibrahim is entitled to substantially more or substantially less than that amount. But until an amount is fixed in accordance with applicable law, we are unable to pass upon that question.
The present panel will retain responsibility for any appeals that may possibly emanate from an appealable order or judgment of the district court resulting from this remand. The fee and expense awards of the district court are AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

 
 CCaassee:31:046-1-c6v1-6010,50415/-0W2H/2A019D, oIDcu: m11e1n3t8802346, FDikletEdn0t1ry/0: 21/0119-1,PPaaggee11oof f8866

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DR. RAHINAH IBRAHIM, an individual,
Plaintiff-Appellant,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY; TERRORIST SCREENING CENTER; FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER A. WRAY,* in his official capacity as Director of the Federal Bureau of Investigation; KIRSTJEN NIELSEN, in her official capacity as Secretary of the Department of Homeland Security; MATTHEW G. WHITAKER, in his official capacity as Acting Attorney General; CHARLES H. KABLE IV, in his official capacity as Director of the Terrorist Screening Center; JAY S. TABB, JR., in his official capacity as Executive Assistant Director of the FBI’s National Security Branch; NATIONAL COUNTERTERRORISM CENTER;

Nos. 14-16161 14-17272
D.C. No. 3:06-cv-545-
WHA
OPINION

* Current cabinet members and other federal officials have been substituted for their predecessors pursuant to Rule 43(c)(2) of the Federal Rules of Appellate Procedure.

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2

IBRAHIM V. DHS

RUSSELL “RUSS” TRAVERS, in his official capacity as Director of the National Counterterrorism Center; DEPARTMENT OF STATE; MICHAEL R. POMPEO, in his official capacity as Secretary of State; UNITED STATES OF AMERICA,
Defendant-Appellees.

Appeal from the United States District Court for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted En Banc March 20, 2018 San Francisco, California
Filed January 2, 2019
Before: Sidney R. Thomas, Chief Judge, and M. Margaret McKeown, Kim McLane Wardlaw, William A. Fletcher, Marsha S. Berzon, Consuelo M. Callahan, Milan D. Smith,
Jr., N. Randy Smith, Morgan Christen, Jacqueline H. Nguyen, and Paul J. Watford, Circuit Judges.
Opinion by Judge Wardlaw; Partial Concurrence and Partial Dissent by Judge Callahan

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SUMMARY**

Equal Access to Justice Act / Attorneys’ Fees
The en banc court reversed the district court, vacated the award of attorneys’ fees under the Equal Access to Justice Act (“EAJA”), and remanded with instructions to recalculate the fees for the civil rights law firm that represented Dr. Rahinah Ibrahim in her successful challenge to her inclusion on the Transportation Security Administration’s “No Fly” list.
The en banc court held that when a district court awards complete relief on one claim, rendering it unnecessary to reach alternative claims, the alternative claims cannot be deemed unsuccessful for the purpose of calculating a fee award. The en banc court rejected the post hoc “mutual exclusivity” approach to determining whether “unsuccessful” claims were related to successful claims and reaffirmed that Hensley v. Eckerhart, 461 U.S. 424 (1983), sets forth the correct standard of “relatedness” for claims under EAJA. The en banc court reaffirmed that in evaluating whether the government’s position is substantially justified, the court looks at whether the government’s and the underlying agency’s positions were justified as a whole and not at each stage of the litigation.
Applying these standards, the en banc court held that the various stages at issue here were all part of one litigation in federal court where the case was never returned to an agency for further proceedings, and, therefore, Corbin v. Apfel,
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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149 F.3d 1051 (9th Cir. 1998) (holding that in exceedingly complex cases, a court may appropriately determine whether the government was substantially justified at each stage of the litigation and make a fee award apportioned to those separate determinations), did not apply. The en banc court held that the district court erred in its piecemeal approach to substantial justification, and concluded that neither the agency’s conduct nor the government’s litigation position was substantially justified.
The en banc court held that the district court erred in determining that Dr. Ibrahim was entitled to reasonable fees and expenses with respect to only her procedural due process claim and her related substantive due process and Administrative Procedure Act claims, and in disallowing counsel’s reasonable fees and expenses on the unreached, and “unrelated,” First Amendment and equal protection claims. The en banc court held that the district court clearly erred in holding that Dr. Ibrahim’s unreached claims were unsuccessful. The en banc court held that all of Dr. Ibrahim’s claim arose from a “common course of conduct” and were therefore related under Hensley. The en banc court further held that the district court erred in finding that Dr. Ibrahim had only “limited” success, and concluded that Dr. Ibrahim satisfied Hensley’s second prong that the plaintiff achieve “a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award.” Hensley, 461 U.S. at 434. The en banc court found that Dr. Ibrahim achieved excellent results and was entitled to reasonable fees consistent with that outcome.
Although generally attorneys’ fees are capped under EAJA at $125 per hour, where the government acts in bad faith, a court may assess fees and expenses to the extent a party would be liable under the common law. The en banc

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court concluded that the district court’s ruling that the government did not act in bad faith was in error because it was incomplete where the district court did not consider the “totality” of the government’s conduct, including conduct prelitigation and during trial.
The en banc court remanded to allow the district court to make a bad faith determination under the correct legal standard in the first instance, and to re-determine the fee award.
Judge Callahan, joined by Judges N.R. Smith and Nguyen, concurred in part and dissented in part. Judge Callahan agreed with the majority that Dr. Ibrahim was the prevailing party, and that the test for substantial justification is an inclusive one; and that Dr. Ibrahim’s equal protection and First Amendment claims were sufficiently related to her other claims such that the district court’s failure to reach those issues did not justify the district court’s curtailment of attorneys’ fees. Judge Callahan would hold that the majority exceeded its role as an appellate court by determining in the first instance that the government’s position was not substantially justified; and dissented from the majority’s setting aside of the district court’s finding that the defendants did not proceed in bad faith. Judge Callahan would affirm the district court’s limitation of Dr. Ibrahim’s attorneys’ fees to the statutory rate set by EAJA.

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COUNSEL
Marwa Elzankaly (argued), Jennifer Murakami, Ruby Kazi, Christine Peek, Elizabeth Pipkin, and James McManis, McManis Faulkner, San Jose, California, for PlaintiffAppellant.

Joshua Waldman (argued) and Sharon Swingle, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for Defendants-Appellees.

Chet A. Kronenberg and JoAnne S. Jennings, Simpson Thacher & Bartlett LLP, Los Angeles, California, for Amici Curiae American Civil Liberties Union of California, Asian Americans Advancing Justice-Asian Law Caucus, Asian Americans Advancing Justice-Los Angeles, Center for Constitutional Rights, Electronic Frontier Foundation, and National Immigration Law Center.

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OPINION
WARDLAW, Circuit Judge:
This appeal arises out of Dr. Rahinah Ibrahim’s 2005 detention at the San Francisco International Airport (SFO) while en route to Malaysia with a stopover in Hawaii for a Stanford University conference. U.S. authorities detained Dr. Ibrahim because her name was on the Transportation Security Administration’s (TSA) “No Fly” list (the No Fly list). After almost a decade of vigorous and fiercely contested litigation against our state and federal governments and their officials, including two appeals to our court and a weeklong trial, Dr. Ibrahim won a complete victory. In 2014, the federal government at last conceded that she poses no threat to our safety or national security, has never posed a threat to national security, and should never have been placed on the No Fly list. Through Dr. Ibrahim’s persistent discovery efforts, which were met with stubborn opposition at every turn, she learned that she had been nominated to the No Fly list and the Interagency Border Inspection System (IBIS), which are stored within the national Terrorist Screening Database (TSDB)—the federal government’s centralized watchlist of known and suspected terrorists—and which serve as a basis for selection for other counterterrorism sub-lists. From there, a Federal Bureau of Investigation (FBI) special agent so misread a nomination form that he accidentally nominated Dr. Ibrahim to the No Fly list, intending to do the opposite, as the No Fly list is supposed to be comprised of individuals who pose a threat to civil aviation.
But Dr. Ibrahim did not accomplish this litigation victory on her own. Indeed, since she was finally allowed to travel to Malaysia in 2005, the United States government has never allowed her to return to the United States, not even to attend

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the trial that cleared her name. Throughout this hard-fought litigation, the civil rights law firm McManis Faulkner has represented her interests without pay, but with the understanding that if it prevailed on her behalf, it could recover reasonable attorneys’ fees and expenses, in addition to costs, pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412.
The firm filed a motion for an award of attorneys’ fees and expenses, supported by documentary evidence and declarations, which the government opposed. The motion was met with the “compliments” of the district court and drastic reductions in the claimed fees, by almost ninety percent. In reducing the claimed legal fees, the district court misapplied Commissioner, I.N.S. v. Jean, 496 U.S. 154 (1990), by taking a piecemeal approach to determining whether the government’s position was “substantially justified,” and so disallowing fees for particular stages of proceedings rather than examining the record as a whole and making a single finding. The district court further erred by treating alternative claims or theories for the same relief Dr. Ibrahim achieved—which the court, therefore, did not reach—as unsuccessful, and reducing fees for work pursuing those claims, contrary to Hensley v. Eckerhart, 461 U.S. 424 (1983). These errors were compounded by the nowwithdrawn three-judge panel decision, which misapplied the Hensley standard for determining “relatedness,” i.e., whether the claims arose from a “common course of conduct,” to wrongly conclude that because the claims in the alternative were “mutually exclusive,” they were not related. In point of fact, all of the legal theories pursued on behalf of Dr. Ibrahim challenged the same and only government action at the heart of this lawsuit: the government’s placement of her name on the No Fly list without any basis for doing so. Finally, our prior precedent, which we now

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reaffirm, requires that when a district court analyzes whether the government acted in bad faith, it must consider the totality of the circumstances, including both the underlying agency action and the litigation in defense of that action.
We reheard this appeal en banc to clarify the standards applicable to awards of attorneys’ fees under the EAJA. We now reverse, vacate the award of attorneys’ fees, and remand with instructions to recalculate fees consistent with this opinion.1
I.
A. Dr. Ibrahim
Dr. Ibrahim is a Muslim woman, scholar, wife, and mother of four children. She lived in the United States for thirteen years pursuing undergraduate and post-graduate studies. Here’s what happened to Dr. Ibrahim, as the events that ultimately excluded her from this country unraveled:
In early January 2005, Dr. Ibrahim planned to fly from San Francisco to Hawaii and then to Los Angeles and on to Kuala Lumpur. She intended to attend a conference in Hawaii sponsored by Stanford University from January 3 to January 6, at which she would present the results of her doctoral research. She was then working toward a Ph.D. in construction engineering and management at Stanford University under an F-1 student visa. On January 2, 2005, Dr. Ibrahim arrived at SFO with her daughter, Rafeah, then fourteen. At the time, Dr. Ibrahim was still recovering from

1 For ease of reading, attached as Appendix A is a glossary of the numerous acronyms referenced throughout this opinion.

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a hysterectomy performed three months earlier and required wheelchair assistance.
When Dr. Ibrahim arrived at the United Airlines counter, the airline staff discovered her name on the No Fly list and called the police. Dr. Ibrahim was handcuffed and arrested. She was escorted to a police car (while handcuffed) and transported to a holding cell by male police officers, where she was searched for weapons and held for approximately two hours. Paramedics were called to administer medication related to her surgery. No one explained to Dr. Ibrahim the reasons for her arrest and detention.
Eventually, she was released and an aviation security inspector with the Department of Homeland Security (DHS) informed Dr. Ibrahim that her name had been removed from the No Fly list. The police were satisfied that there were insufficient grounds for making a criminal complaint against her. Dr. Ibrahim was told that she could fly to Hawaii the next day.
The next day she returned to SFO where an unspecified person told her that she was again—or still—on the No Fly list. She was nonetheless allowed to fly, but was issued an unusual red boarding pass with the letters “SSSS,” meaning Secondary Security Screening Selection, printed on it. Dr. Ibrahim flew to Hawaii and presented her doctoral findings at the Stanford conference. From there, she flew to Los Angeles and then on to Kuala Lumpur.
Two months later, on March 10, 2005, Dr. Ibrahim was scheduled to return to Stanford University to complete her work on her Ph.D. and to meet with an individual who was one of her Stanford dissertation advisors and also her friend, Professor Boyd Paulson, who was very ill. But when she arrived at the Kuala Lumpur International Airport, she was

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not permitted to board the flight to the United States. She was told by one ticketing agent that she would have to wait for clearance from the U.S. Embassy, and by another that a note by her name indicated the police should be called to arrest her. Dr. Ibrahim has not been permitted to return to the United States to this day.
On March 24, 2005, Dr. Ibrahim submitted a Passenger Identity Verification Form (PIVF) to TSA. Before 2007, individuals who claimed they were denied or delayed boarding a plane in or for, or entry to, the United States, or claimed they were repeatedly subjected to additional screening or inspection, could submit a PIVF to TSA. A PIVF prompted various agencies to review whether an individual was properly placed in the TSDB or in related watchlist databases.2
Next, on April 14, 2005, the U.S. Embassy in Kuala Lumpur wrote to inform Dr. Ibrahim that the Department of State had revoked her F-1 student visa on January 31, 2005, which seemed to explain why she had not been allowed to fly in March, but gave her no further information regarding her status. The April 14 letter cited Dr. Ibrahim’s possible ineligibility “under Section 212(a)(3)(B) of the Immigration and Nationality Act [(INA)],” codified at 8 U.S.C § 1182(a)(3)(B), to explain the revocation. That section prohibits entry into the U.S. by any person who engaged in terrorist activity, was reasonably believed to be engaged in or likely to be engaged in terrorist activity, or who has incited terrorist activity, among other things. 8 U.S.C.

2 This avenue of redress was replaced in 2007 by the Travel Redress Inquiry Program (TRIP), see 49 U.S.C. § 44926(a), which requires a “timely and fair” process for persons wrongly delayed or prohibited from boarding a commercial aircraft.

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§ 1182(a)(3)(B). However, the letter also told her that the revocation did “not necessarily indicate that [she would be] ineligible to receive a U.S. visa in [the] future.” Not having heard back from TSA, Dr. Ibrahim retained McManis Faulkner. And on January 27, 2006, she filed the underlying action to challenge her placement on the No Fly list, as well as the federal and state governments’ administration of the list and their treatment of her with respect to it.
In a letter dated March 1, 2006, Dr. Ibrahim received a response to her PIVF. That letter stated that TSA had “conducted a review of any applicable records in consultation with other federal agencies, as appropriate,” and continued, “[w]here it has been determined that a correction to records is warranted, these records have been modified to address any delay or denial of boarding that you may have experienced as a result of the watchlist screening process.” The letter did not indicate Dr. Ibrahim’s status with respect to the No Fly list or any other federal watchlist.
In 2009, Dr. Ibrahim applied for a visa to attend proceedings in this action. The U.S. Embassy in Kuala Lumpur interviewed her on September 29, 2009. On December 14, 2009, a consular officer of the U.S. Department of State sent a letter to Dr. Ibrahim notifying her of her visa application’s denial. The consular officer wrote the word “(Terrorist)” next to the checked box for INA § 212(a)(3)(B) on an accompanying form to explain why Dr. Ibrahim was deemed inadmissible.
In September 2013, Dr. Ibrahim submitted a visa application so that she could attend the trial in her case. She went to a consular officer interview in October 2013. At the interview, the consular officer asked her to provide supplemental information via e-mail, which Dr. Ibrahim duly provided. Trial in this action began on December 2 and

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ended on December 6. While she did not receive a response to her visa application before trial, at trial, government counsel stated that the visa had been denied. Dr. Ibrahim’s counsel said that they had not been aware of the denial and that Dr. Ibrahim had not been notified.
B. United States Government
While Dr. Ibrahim stood in limbo, unaware of her status on any list and unable to return to the United States, even to attend the trial of her own case, the government was well aware that her placement on the No Fly list was a mistake from the get-go.3
Here it is helpful to understand, as much as we can on this record, how the U.S. “government maintains and operates a web of interlocking watchlists, all now centered on the [TSDB],” as described in the district court’s post-trial order.4 The FBI, DHS, the Department of State, and other agencies administer an organization called the Terrorist Screening Center (TSC), which manages the TSDB. Both the TSC and TSDB were created in response to the terrorist attacks on September 11, 2001, in order to centralize information about known and suspected terrorists. That information is then exported as appropriate to various “customer databases,” i.e., government watchlists, operated by other agencies and government entities. In this way, “the

3 To this date, we do not know how Dr. Ibrahim was initially flagged for potential placement in the TSDB, managed by the Terrorist Screening Center (TSC), of which the No Fly list is a subset. There has never been a determination, nor can we determine, whether this placement was motivated by “race, religion, or ethnicity.”
4 None of the following information was deemed classified or otherwise privileged before or during trial.

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dots could be connected.” While the TSDB does not contain classified information, the government stores classified “derogatory” information in a closely allied and separate database called the Terrorist Identities Datamart Environment (TIDE), which is operated by the National Counterterrorism Center (NCTC) branch of the Office of the Director of National Intelligence. These terrorist watchlists, and others, provide information to the United States intelligence community, a coalition of seventeen agencies and organizations within the executive branch, and also provide information to certain foreign governments.
Today, individuals are generally nominated to the TSDB using a “reasonable suspicion standard,” meaning “articulable facts which, taken together with rational inferences, reasonably warrant the determination that an individual is known or suspected to be or has been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and terrorist activities.” This standard was created by executive branch policy and practice and was not promulgated by Congress or the judicial branch. However, from 2004 to 2007, the executive branch and its agencies employed no uniform standard for TSDB nominations, allowing each agency to use its own nominating procedures for inclusion in the TSDB based on each agency’s interpretation of homeland security presidential directives and the memorandum of opinion that established the TSC. These directives provided little instruction. For example, one such directive was Homeland Security Presidential Directive 6 (HSPD-6), which stated, “[t]his directive shall be implemented in a manner consistent with the provisions of the Constitution and applicable laws, including those protecting the rights of all Americans.”

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As the centralized database, the TSDB is the repository for all watchlist nominations. Various government agents nominate individuals by filling out a physical form, which is later computerized and used by the TSDB to indicate on which watchlist each nominee should be included or excluded. There are several watchlists affected by the TSDB, namely5:

• the No Fly list (TSA); • the Selectee list (TSA); • Known and Suspected Terrorist File (KSTF,
previously known as the Violent Gang and Terrorist Organizations File); • Consular Lookout and Support System (CLASS, including CLASS-Visa, a Department of State database used for screening of visa applicants, and CLASS-Passport, a database that applies only to United States citizens who might be watchlisted) (Department of State); • TECS (not an acronym, but the successor to the Treasury Enforcement Communications System) (DHS); • Interagency Border Inspection System (IBIS) (DHS); • Tipoff United States-Canada (TUSCAN) (used to export information from the United States to Canada); and • Tipoff Australia Counterterrorism Information Control System (TACTICS) (used to export information from the United States to Australia).

5 This is information derived solely from the record before us, so we do not represent that this is an exclusive list or that there have not been subsequent changes to the lists.

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These TSDB designations are then exported to the customer/government watchlists, which are each operated by various government entities and used in various ways. For example, TSDB nominations are transmitted to the Department of State for inclusion in CLASS-Visa or CLASS-Passport. In ruling on visa applications, consular officers review the CLASS database for information that may inform the visa application and adjudication process.
In November 2004, shortly after Dr. Ibrahim’s husband Mustafa Kamal Mohammed Zaini visited her from Malaysia to help her after her surgery, FBI Special Agent Kevin Michael Kelley (Agent Kelley), located in San Jose, California, unintentionally nominated Dr. Ibrahim, who was then a graduate student at Stanford University, to various federal watchlists using the FBI’s National Crime Information Center (NCIC) Violent Gang and Terrorist Organizations (VGTO) File Gang Member Entry Form (VGTOF). VGTO was an office within NCIC. Agent Kelley misunderstood the directions on the form and erroneously nominated Dr. Ibrahim to the TSA’s No Fly list and DHS’s IBIS. He did not intend to do so.
Agent Kelley testified at trial that he intended to nominate Dr. Ibrahim to the CLASS, the TSA Selectee list, TUSCAN (information exported to Canada), and TACTICS (information exported to Australia) lists. He checked the wrong boxes, filling out the form exactly contrary to the form’s instructions. The form expressly indicated that he was to check the boxes for the databases into which the subject should NOT be placed. Here is a blank copy of the form:

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In other words, Agent Kelley was instructed to check the boxes for the watchlists for which Dr. Ibrahim was NOT to be nominated. Here is the form as Agent Kelley completed it:
Agent Kelley, by failing to check the boxes for the No Fly list and IBIS, placed Dr. Ibrahim on those watchlists (and by checking the boxes for CLASS, the TSA Selectee list, TUSCAN, and TACTICS, Agent Kelley did not place her on those lists).
Agent Kelley’s squad also was conducting a mosque outreach program. One purpose of the program was to

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provide a point of contact between law enforcement and mosques and Islamic associations. The outreach program included Muslim and Sikh communities and organizations in the San Francisco Bay Area. In December 2004, Agent Kelley and his colleague interviewed Dr. Ibrahim while she was still attending Stanford University.6 He asked, among other things, about her plans to attend a conference in Hawaii, her dissertation work, her plans after graduation, her involvement in the Muslim community, her husband, her travel plans, and the organization Jemaah Islamiyah, a Department of State-designated terrorist organization that Dr. Ibrahim had heard of only on the news. She was not a member.7 The Freedom of Information Act-produced version of Agent Kelley’s interview notes with Dr. Ibrahim were designated by the FBI as “315,” which denotes “International Terrorism Investigations.”
On January 2, 2005, when Dr. Ibrahim was detained at SFO on her way to Hawaii, a DHS aviation security inspector told her that her name had been removed from the list.

6 Again, we do not know on this record the motivation for singling out Dr. Ibrahim for the interview, but we note that the district court stated “it [was] plausible that Dr. Ibrahim was interviewed in the first place on account of her roots and religion.” The interview also came soon on the heels of her Muslim husband’s visit. However, the motivation question was the basis for one of the claims the district court found it unnecessary to reach.
7 Dr. Ibrahim was a member of a non-terrorist organization with a similar-sounding name, Jemaah Islah Malaysia, a Malaysian professional organization composed primarily of individuals who studied in the United States or Europe. The district court declined to find that Agent Kelley confused Jemaah Islah Malaysia with Jemaah Islamiyah.

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Meanwhile, on January 3, 2005, in the visa office of the Department of State, one official was sitting on a stack of pending visa revocations that were based on the VGTO watchlist from which Agent Kelley had nominated Dr. Ibrahim to the No Fly list. That official e-mailed another visa official to report that although “[t]hese revocations contain virtually no derogatory information,” he was going to revoke them. The official wrote, because “there is no practical way to determine the basis of the investigation . . . we will accept that the opening of an investigation itself is a prima facie indicator of potential ineligibility under [§ 212(a)(3)(B) of the INA, relating to terrorist activities].” One of the revocations in that stack was Dr. Ibrahim’s student visa.
Sure enough, on January 31, 2005, the Department of State revoked Dr. Ibrahim’s F-1 student visa pursuant to § 212(a)(3)(B). In an e-mail conversation dated February 8, 2005 between the chief of the consular section at the U.S. Embassy in Kuala Lumpur and an official in the coordination division at the Department of State’s visa office, designated “VO/L/C,” the consular chief asked about a prudential visa revocation cable he had received concerning the events Dr. Ibrahim experienced in January 2005. The Department of State official replied,
I handle revocations in VO/L/C. The short version is that this person’s visa was revoked because there is law enforcement interest in her as a potential terrorist. This is sufficient to prudentially revoke a visa but doesn’t constitute a finding of ineligibility. The idea is to revoke first and resolve the issues later in the context of a new visa application . . . . My guess based on past experience is that

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she’s probably issuable. However, there’s no way to be sure without putting her through the interagency process.

After Dr. Ibrahim’s visa was revoked, the Department of State entered a record into CLASS that notified any consular official adjudicating a future visa application on her behalf that she may be inadmissible under § 212(a)(3)(B). In December 2005, Dr. Ibrahim was removed from the TSA’s Selectee list. Around this time, however, she was added to TACTICS (exports to Australia) and TUSCAN (exports to Canada). The government has never explained this placement or the effect of Dr. Ibrahim’s placement on TACTICS or TUSCAN.8
Two weeks later, on January 27, 2006, Dr. Ibrahim filed the underlying action. On February 10, 2006, an unidentified government agent requested that Dr. Ibrahim be “Remove[d] From ALL Watchlisting Supported Systems (For terrorist subjects: due to closure of case AND no nexus to terrorism).” Answering the question “Is the individual qualified for placement on the no fly list?” the “No” box was checked. For the question, “If No, is the individual qualified for placement on the selectee list?” the “No” box was checked.
On September 18, 2006, the government removed Dr. Ibrahim from the TSDB because she did not meet the “reasonable suspicion standard” for placement on it, which

8 The record does not reflect how Canada and Australia use the information exported into the TUSCAN and TACTICS databases. The government declined to provide this information during discovery, deeming it outside the scope of the Federal Rule of Civil Procedure 30(b)(6) subpoena.

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requires that the government believe “an individual is known or suspected to be or has been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and terrorist activities.” The record, however, does not indicate whether she was removed from all of the customer watchlists that subscribed to the TSDB.
On March 2, 2007, Dr. Ibrahim was placed back on the TSDB. The record does not explain why she was relisted on the TSDB or which customer watchlists were to be notified. Two months later, however, on May 30, 2007, Dr. Ibrahim was again removed from the TSDB. The record does not show the extent to which Dr. Ibrahim’s name was then removed from the other customer watchlists, nor the reason for the removal.
Dr. Ibrahim’s 2009 visa application to attend proceedings in this case was initially refused under § 221(g) of the INA, 8 U.S.C. § 1201(g), because it was determined that there was insufficient information to make a final adjudication in the matter. The consular officer requested a Security Advisory Opinion from the Department of State. The consular official was concerned that Dr. Ibrahim was potentially inadmissible under § 212(a)(3)(B) of the INA, which provides nine classes of aliens ineligible for visas or admission into the United States based on terrorist activities. The Security Advisory Opinion from the Department of State, initially unavailable to Dr. Ibrahim but later produced in discovery, stated:
Information on this applicant surfaced during the SAO review that would support a 212(a)(3)(B) inadmissibility finding. Posts should refuse the case accordingly. Since the Department reports all visa refusals under INA Section 212(a)(3)(B) to Congress, post

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should notify [the Coordination Division within the Visa Office] when the visa refusal is affected [sic]. There has been no request for an INA section 212(d)(3)(A) waiver at this time.

Based on the Security Advisory Opinion’s finding, the consular officer denied her visa application, and wrote the word “(Terrorist)” on the form to explain the inadmissibility determination to Dr. Ibrahim.
On October 20, 2009, Dr. Ibrahim was again nominated to the TSDB pursuant to a secret exception to the reasonable suspicion standard. The government claims that the nature of the exception and the reasons for the nomination are state secrets. In Dr. Ibrahim’s circumstance, the effect of the nomination was that Dr. Ibrahim’s information was exported from the TSDB database solely to the Department of State’s CLASS database and DHS’s TECS database.
From October 2009 to the present, Dr. Ibrahim has been included on the TSDB, CLASS, and TECS watchlists. She has been off the No Fly and Selectee lists. She remains in the TSDB, even though she does not meet the “reasonable suspicion standard,” pursuant to a classified and secret exception to that standard.
Government counsel conceded at trial that Dr. Ibrahim was not a threat to the national security of the United States and that she never has been. She did not pose (and has not posed) a threat of committing an act of international or domestic terrorism with respect to an aircraft, a threat to airline passenger or civil aviation security, or a threat of domestic terrorism. Despite this assessment, Dr. Ibrahim has been unable to return to the United States to this day.

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II.
On January 27, 2006, Dr. Ibrahim filed suit against DHS, TSA, the TSC, the FBI, the Federal Aviation Administration (FAA), and individuals associated with these entities (collectively, the federal defendants); the City and County of San Francisco, the San Francisco Police Department, SFO, the County of San Mateo, and individuals associated with these entities (collectively, the city defendants); and United Airlines, UAL Corporation, and individuals associated with these entities (collectively, the private defendants). Dr. Ibrahim asserted § 1983 claims and state-law tort claims arising out of her detention at SFO, as well as several constitutional claims based on the inclusion of her name on government terrorist watchlists. On August 16, 2006, the district court dismissed her claims against the federal defendants under 49 U.S.C. § 46110(a), which vests exclusive original jurisdiction in the courts of appeals over suits challenging security orders issued by TSA. The order also dismissed Dr. Ibrahim’s claims against a TSA employee and the airline. Dr. Ibrahim appealed.
We affirmed in part, reversed in part, and remanded. We reversed the district court’s dismissal of the federal defendants, holding that § 46110(a) does not bar district court jurisdiction over Dr. Ibrahim’s challenges to her placement on the government terrorist watchlists, including the No Fly list, because the lists are managed by the TSC rather than TSA. Ibrahim v. Dep’t of Homeland Sec., 538 F.3d 1250, 1254–56 (9th Cir. 2008) (Ibrahim I). We affirmed the district court’s conclusions that § 46110(a) requires all challenges to TSA policies and procedures implementing the No Fly and other lists to be filed directly in the courts of appeals, that the federal agency and airline actions were not state actions under § 1983, and that the tort

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claims against the federal officials in their official capacities and against the airline defendants were precluded. Id. at 1256–58. We further held that the district court had personal jurisdiction over the claims against the TSA employee, who was sued in his individual capacity.9 Id. at 1258–59. We remanded the issue of standing to the district court to decide in the first instance. Id. at 1254–56, 1256 n.9.
After we remanded the case, Dr. Ibrahim filed a Second Amended Complaint (SAC), alleging various Bivens, constitutional, § 1983, statutory, state tort, and Administrative Procedure Act (APA) claims against several federal agencies and federal officials in their official capacities (collectively, the Federal Defendants) and state and local government agencies, certain individuals in their individual capacities, and the U.S. Investigation Services, Inc. (collectively, the Non-Federal Defendants). Dr. Ibrahim requested an injunction that would require the federal government to take her name off its terrorist watchlists, including the No Fly list, or, in the alternative, to provide procedures under which she could challenge her inclusion on those lists, in addition to other non-monetary requests and damages. The SAC also sought limited relief relevant to Dr. Ibrahim’s visa denial, but stopped short of attempting to force the government to issue her a visa.
Both the Federal Defendants and Non-Federal Defendants filed motions to dismiss with respect to the majority of the claims. In an order dated July 27, 2009, the

9 We held that although the TSA employee “lives in Virginia and has no ties to California,” the court had specific jurisdiction over Dr. Ibrahim’s claims against him because “(1) [he] purposefully directed his action (namely, his order to detain Ibrahim) at California; (2) [Dr.] Ibrahim’s claim arises out of that action; and (3) jurisdiction is reasonable.” Ibrahim I, 538 F.3d at 1258 (citation omitted).

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district court partially granted the Non-Federal Defendants’ motions to dismiss. Thereafter, all of the Non-Federal Defendants entered into cash settlements with Dr. Ibrahim.
In the same order, the district court again dismissed Dr. Ibrahim’s claims against the Federal Defendants. These claims alleged that the inclusion of Dr. Ibrahim’s name on the government’s terrorist watchlists violated her First Amendment right to freedom of association and her Fifth Amendment rights to due process and equal protection. She also alleged that the Federal Defendants violated the APA, arguing that the APA waives the sovereign immunity of the United States, thereby allowing her claims under the First and Fifth Amendments and authorizing remedies for those claims.
The district court held that while Dr. Ibrahim could seek damages for her past injury at SFO (and had successfully settled that part of the case), she had voluntarily left the United States and, as a nonimmigrant alien abroad, no longer had standing to assert constitutional and statutory claims to seek prospective relief. The district court held that, although nonimmigrant aliens in the United States had standing to assert constitutional and statutory claims, a nonimmigrant alien who had voluntarily left the United States and was at large abroad had no standing to assert federal claims for prospective relief in our federal courts. Dr. Ibrahim filed a second appeal.
We affirmed in part, but reversed as to prospective standing by holding that even a nonimmigrant alien who had voluntarily left the United States nonetheless has standing to litigate federal constitutional claims in the district courts of the United States so long as the alien had a “substantial voluntary connection” to the United States. Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983, 996 (9th Cir. 2012)

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(Ibrahim II). We held that Dr. Ibrahim had such a connection because of her time at Stanford University, her continuing collaboration with professors in the United States, her membership in several professional organizations located in the United States, the invitations for her to return, and her network of close friends in the United States. Id. at 993–94, 996. The government did not seek review by the Supreme Court.
Following the second remand, the government again filed a motion to dismiss, which the district court denied. Despite the unequivocal pronouncement from our court and the district court that Dr. Ibrahim had adequately pleaded Article III standing, the government argued over the next year that Dr. Ibrahim lacked standing. The government made this argument in its third motion to dismiss, its motion for summary judgment, its statements during trial, and its proposed findings of fact and conclusions of law. The government persisted, even though it was abundantly clear that “the standing issue had gone the other way on appeal.”
From the February 2012 remand through trial, the parties and the district court were embroiled in discovery disputes involving the state secrets privilege, the law enforcement privilege, and assertions of “sensitive security information” (SSI), 49 C.F.R. § 1520.5. The government invoked these as bases for withholding classified and otherwise allegedly sensitive government information from Dr. Ibrahim and her counsel.
On April 19, 2013, after years of litigation, the district court finally issued two orders granting in part and denying in part Dr. Ibrahim’s motions to compel discovery. Resolving these disputes required the district court judge to review individually each of the documents Dr. Ibrahim sought. Most of this review was conducted ex parte and in

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camera due to the privileged, classified, or secret nature of the documents. The state secrets privilege was upheld as to nearly all of the classified documents in question. The government’s assertion of other privileges regarding nonclassified documents was overruled as to the majority of the remaining documents. The district court compelled the government to release information specifically related to Dr. Ibrahim’s watchlist history, in addition to her current watchlist statuses. It also required the government to produce Federal Rule of Civil Procedure 30(b)(6) witnesses.
At last, Dr. Ibrahim and her attorneys were able to learn what the government had known all along. On May 2, 2013, the government stated that Dr. Ibrahim was inadvertently placed on the No-Fly list but did not explain the details of this mistake, or who was involved. On May 2, 2013, when the government responded to Dr. Ibrahim’s interrogatory requests, Dr. Ibrahim learned, for the first time, her historical and current watchlist statuses.10 On September 12, 2013, again over the government’s vigorous objections, Dr. Ibrahim’s attorneys deposed Agent Kelley and learned that her placement on the No Fly and IBIS watchlists was, in fact,

10 The government designated all of its interrogatory responses “attorneys’ eyes only,” which, under the protective order, meant that only Dr. Ibrahim’s attorneys were allowed to review information produced with this stamp, and Dr. Ibrahim herself was not permitted to review those documents. As a result, it is difficult to discern precisely when Dr. Ibrahim herself was able to learn certain information. However, with respect to information regarding her current and historical watchlist statuses, the district court concluded those were not protected by privilege in its April 2013 order, so it is likely counsel was able to inform Dr. Ibrahim of her watchlist statuses the day the interrogatory responses were filed.

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a mistake based on Agent Kelley’s misreading of the form.11 In sum, the government failed to reveal that Dr. Ibrahim’s placement on the No Fly list was a mistake until two months before trial, and eight years after Dr. Ibrahim filed suit. And at all times, as the government vigorously contested Dr. Ibrahim’s discovery requests, and lodged over two hundred objections and instructions not to answer questions in depositions, the government was aware that she was not responsible for terrorism or any threats against the United States.

The government’s discovery games stretched up to and through trial. The government announced on at least two occasions that if it invoked the state secrets privilege to withhold information, then that evidence could not be relied upon by either side at trial. After making such representations on the record, on September 13, 2013, the district court ordered the government to confirm that neither party could use information withheld on grounds of state secrets privilege. The government affirmed it would not rely on any information withheld on grounds of privilege from Dr. Ibrahim. The government nevertheless reversed course during trial and sought to prevail by having this action dismissed due to its inability to disclose state secrets.

The government also filed a motion for summary judgment. A hearing was held on the government’s motion on October 31, 2013. Instead of discussing the merits of the summary judgment motion, the government used the vast majority of the hearing time to discuss whether or not the

11 Dr. Ibrahim first learned that Agent Kelley had participated in the 2004 interview and that Kelley was personally responsible for nominating her to the TSDB during the deposition of the Acting Deputy Director of the TSC on May 29, 2013.

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trial should be open to the public and whether certain information listed on Dr. Ibrahim’s demonstratives was subject to various privileges. The district court ultimately declined to hear further argument and decided the motion on the papers.
The government’s motion for summary judgment was granted in limited part but mostly denied on November 4, 2013. Dr. Ibrahim’s “exchange of information” claim based on the First Amendment was dismissed. Dr. Ibrahim’s claims based on procedural and substantive due process, equal protection, and First Amendment rights of expressive association and against retaliation proceeded to trial. The government raised lack of standing, yet again, and was denied, yet again. For the first time, and contrary to what it had represented before, the government further argued that summary judgment in its favor was appropriate based on the state secrets privilege, pursuant to our court’s decision in Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1079 (9th Cir. 2010) (en banc) (noting that even when evidence is excluded via an invocation of state secrets, the case may still need to be dismissed because “it will become apparent during the [United States v. Reynolds, 345 U.S. 1 (1953)12]

12 Analyzing claims under the Reynolds privilege involves three steps:
First, we must “ascertain that the procedural requirements for invoking the state secrets privilege have been satisfied.” Second, we must make an independent determination whether the information is privileged …. Finally, “the ultimate question to be resolved is how the matter should proceed in light of the successful privilege claim.”

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analysis that the case cannot proceed without privileged evidence, or that litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets”).
At the final pretrial conference, the government made what amounted to a motion for reconsideration of its previously denied motion for summary judgment on state secrets grounds. The government argued that the action should be dismissed because the core of the case had been excluded as state secrets. The motion was denied on several grounds. First, the government had failed to raise such an argument until weeks before trial. Second, it was too late and too unsettling for the government to reverse its prior position. Third, even under Jeppesen, 614 F.3d at 1080, the district court could not say with certainty that Dr. Ibrahim would be unable to prove her case at trial or that the government would be absolutely deprived of a meritorious and complete defense. The district court planned to allow both sides to present their unclassified evidence through the “normal” trial procedure and then to allow the government to submit an ex parte and under seal submission to try to explain how its state secrets might bear on the actual trial issues. Surprisingly, although no classified information was used at trial, the government made numerous privilege assertions and motions to close the courtroom. Due to these assertions, the district judge at least ten times “reluctantly” asked the press and the public to leave the courtroom.
On December 2, 2013, the first day of trial, before opening statements, Dr. Ibrahim’s counsel reported that Dr.

Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1202 (9th Cir. 2007) (citations omitted) (quoting El-Masri v. United States, 479 F.3d 296, 304 (4th Cir. 2007)).

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Ibrahim’s daughter—a U.S. citizen born in the United States and a witness disclosed on Dr. Ibrahim’s witness list—was not permitted to board her flight from Kuala Lumpur to attend trial, evidently because she too was now on the No Fly list. Consequently, Dr. Ibrahim’s daughter missed her flight and was forced to reschedule. The district court concluded this was a mistake, and the government quickly remedied this error.
After a one-week bench trial, in the first No Fly list trial ever conducted, the district court found in Dr. Ibrahim’s favor on her procedural due process claim and ordered the government to remove all references to the mistaken designations by Agent Kelley in 2004 on all terrorist watchlist databases and records; to inform Dr. Ibrahim of the specific subsection of the INA that rendered Dr. Ibrahim ineligible for a visa in 2009 and 2013; to inform Dr. Ibrahim she is no longer on the No Fly list and has not been since 2005; and to inform Dr. Ibrahim that she is eligible to apply for a discretionary visa waiver under 8 U.S.C. § 1182(3)(D)(iv) and 22 C.F.R. § 41.121(b)(1). The district court declined to reach Dr. Ibrahim’s substantive due process, equal protection, First Amendment, and APA claims, because “those arguments, even if successful, would not lead to any greater relief than already ordered.”
Having won an outstanding victory, Dr. Ibrahim’s lawyers petitioned for fees under the EAJA. In the district court’s April 15, 2014 fee order, although the district court applauded the lawyers’ commitment to this difficult and unprecedented case, it awarded only limited compensation. The court acknowledged that Dr. Ibrahim “did not outright lose” on her substantive due process, equal protection, First Amendment, and APA claims, but treated those claims as “unsuccessful” when it calculated fees under Hensley. The

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district court found that her substantive due process and APA claims were related to the procedural due process claim on which she prevailed, so it allowed fees on these claims. But the court also ruled that her First Amendment and equal protection claims were not related to the successful claim, and denied fees for work performed on those claims. The district court also concluded that Dr. Ibrahim’s counsel was not entitled to fees for work performed on Dr. Ibrahim’s visa issues, the settlement with the Non-Federal Defendants, litigation of standing prior to Ibrahim II (although it permitted fees for time after Ibrahim II), litigation of privilege issues, and other miscellaneous work. The district court also found that the government did not act in bad faith, that Dr. Ibrahim’s counsel was not entitled to a rate enhancement beyond the $125 per hour fee13 stated in 28 U.S.C. § 2412(d)(2)(A)(ii), and that counsel was not entitled to fees as discovery sanctions pursuant to Federal Rules of Civil Procedure 37 and 16. The district court appointed a special master to determine the appropriate award of fees and costs based on the district court’s findings.
Thereafter, the parties and the court engaged in a lengthy and contentious fee dispute before the special master. The district court ultimately adopted the special master’s findings and reduced Dr. Ibrahim’s fees for various witnesses and costs associated with those witnesses, expenses related to obtaining TSA clearance, costs that would be “reasonably charged” to the client, and costs for multiple copies of the same book; and rejected certain expenses for lack of supporting documentation or sufficient itemization. In total, Dr. Ibrahim sought $3,630,057.50 in market-rate attorneys’ fees and $293,860.18 in expenses.

13 The district court allowed a rate enhancement for James McManis because of his “distinctive knowledge and skills.”

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On October 9, 2014, the district court ultimately awarded Dr. Ibrahim $419,987.36 in fees and $34,768.71 in expenses. Dr. Ibrahim appealed the underlying legal framework the district court utilized to determine the fees she was eligible to recover, various specific reductions to eligible fees, and the striking of her objections to the special master’s recommendations.
On appeal, in the now-withdrawn panel opinion, our court adopted a number of the district court’s rulings under a different approach. Ibrahim v. U.S. Dep’t of Homeland Sec., 835 F.3d 1048 (9th Cir. 2016), reh’g en banc granted, 878 F.3d 703 (9th Cir. 2017) (Ibrahim III). The three-judge panel concluded that “it was not an abuse of discretion to find that [Dr.] Ibrahim’s unsuccessful claims were unrelated, because although the work done on those claims could have contributed to her ultimately successful claim, the facts and legal theories underlying [Dr.] Ibrahim’s claims make that result unlikely.” Id. at 1063. The panel rested this conclusion on the novel theory that, because the theories underlying claims the district court declined to reach were “mutually exclusive” to the successful claims, the unreached claims were unrelated. Id. at 1062–63. The panel also held that the district court incorrectly considered substantial justification at each stage of litigation; that the government did not act in bad faith; that the district court did not err in determining that Dr. Ibrahim had failed to abide by its page limits in objecting to the special master’s report and recommendation; and that the district court did not abuse its discretion in striking Dr. Ibrahim’s objections to the special master’s report and recommendation. Id. at 1052, 1065–66.
We now clarify that when a district court awards complete relief on one claim, rendering it unnecessary to reach alternative claims, the alternative claims cannot be

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deemed unsuccessful for the purpose of calculating a fee award. We also reject the post hoc “mutual exclusivity” approach to determining whether “unsuccessful” claims are related to successful claims and reaffirm that Hensley sets forth the correct standard of “relatedness” for claims under the EAJA. And we reaffirm that in evaluating whether the government’s position is substantially justified, we look at whether the government’s and the underlying agency’s positions were justified as a whole and not at each stage.
III.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s award of fees under the EAJA for abuse of discretion. Thomas v. City of Tacoma, 410 F.3d 644, 649 (9th Cir. 2005); Gonzales v. Free Speech Coal., 408 F.3d 613, 618 (9th Cir. 2005); Schwarz v. Sec’y of Health & Human Servs., 73 F.3d 895, 900 (9th Cir. 1995). We review a district court’s finding on the question of bad faith for clear error. Cazares v. Barber, 959 F.2d 753, 754 (9th Cir. 1992). We review the district court’s interpretation of the EAJA de novo. Edwards v. McMahon, 834 F.2d 796, 801 (9th Cir. 1987). “[A] district court’s fee award will be overturned if it is based on an inaccurate view of the law or a clearly erroneous finding of fact.” Corder v. Gates, 947 F.2d 374, 377 (9th Cir. 1991).
IV.
The parties now14 do not dispute that Dr. Ibrahim is entitled to attorneys’ fees under the EAJA. What they do

14 Before the district court, the government opposed Dr. Ibrahim’s request for attorneys’ fees on substantial justification grounds, and it originally cross-appealed the entire award in this appeal. Before

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dispute is whether the amount of fees the district court awarded resulted from a proper application of the EAJA and common law.
In enacting the EAJA, Congress stated:
For many citizens, the costs of securing vindication of their rights and the inability to recover attorney fees preclude resort to the adjudicatory process. . . . When the cost of contesting a Government order, for example, exceeds the amount at stake, a party has no realistic choice and no effective remedy. In these cases, it is more practical to endure an injustice than to contest it.

S. Rep. No. 96-253, at 5 (1979).

“The clearly stated objective of the EAJA is to eliminate

financial disincentives for those who would defend against

unjustified governmental action and thereby to deter the

unreasonable exercise of Government authority.” Ardestani

v. I.N.S., 502 U.S. 129, 138 (1991); see also Jean, 496 U.S.

at 163 (“[T]he specific purpose of the EAJA is to eliminate

for the average person the financial disincentive to challenge

unreasonable governmental actions.”).

Congress

specifically intended the EAJA to deter unreasonable agency

conduct. Jean, 496 U.S. at 163 n.11 (quoting the statement

of purpose for the EAJA, Pub. L. No. 96-481, §§ 201–08,

94 Stat. 2321, 2325–30 (1980)).

argument, however, the government moved to voluntarily dismiss the cross-appeal and paid to Dr. Ibrahim the now uncontested amounts of attorneys’ fees and expenses awarded by the district court.

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The policy behind the EAJA “is to encourage litigants to vindicate their rights where any level of the adjudicating agency has made some error in law or fact and has thereby forced the litigant to seek relief from a federal court.” Li v. Keisler, 505 F.3d 913, 919 (9th Cir. 2007). “[W]e have consistently held that regardless of the government’s conduct in the federal court proceedings, unreasonable agency action at any level entitles the litigant to EAJA fees.” Id.
“The EAJA applies to a wide range of awards in which the cost of litigating fee disputes would equal or exceed the cost of litigating the merits of the claim.” Jean, 496 U.S. at 163–64. The EAJA was designed to remedy this situation by providing for an award of reasonable attorneys’ fees to a “prevailing party” in a “civil action” unless the position taken by the United States at issue “was substantially justified” or “special circumstances make an award unjust.” Id. at 158; 28 U.S.C. § 2412(d)(1)(A).
The EAJA specifically provides:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

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28 U.S.C. § 2412(d)(1)(A).
Thus, as the Supreme Court held in Jean:
eligibility for a fee award in any civil action requires: (1) that the claimant be “a prevailing party”; (2) that the Government’s position was not “substantially justified”; (3) that no “special circumstances make an award unjust”; and, (4) pursuant to 28 U.S.C. § 2412(d)(1)(B), that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized statement.

496 U.S. at 158.
The district court correctly concluded that Dr. Ibrahim was the prevailing party in this case. The third and fourth Jean factors are not at issue. The only remaining issue as to Dr. Ibrahim’s entitlement to fees is whether the government’s position was substantially justified.
A. Substantial Justification
Where, as here, a movant under the EAJA has established that it is a prevailing party, “the burden is on the government to show that its litigation position was substantially justified on the law and the facts.” Cinciarelli v. Reagan, 729 F.2d 801, 806 (D.C. Cir. 1984). To establish substantial justification, the government need not establish that it was correct or “justified to a high degree”—indeed, since the movant is established as a prevailing party it could never do so—but only that its position is one that “a reasonable person could think it correct, that is, [that the

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position] has a reasonable basis in law and fact.”15 Pierce v. Underwood, 487 U.S. 552, 565, 566 n.2 (1988). That the government lost (on some issues) does not raise a presumption that its position was not substantially justified. Edwards, 834 F.2d at 802 (citation omitted). Fees may be denied when the litigation involves questions of first impression, but “whether an issue is one of first impression is but one factor to be considered.” United States v. Marolf, 277 F.3d 1156, 1162 n.2 (9th Cir. 2002).

When evaluating the government’s “position” under the EAJA, we consider both the government’s litigation position and the “action or failure to act by the agency upon which the civil action is based.” 28 U.S.C. § 2412(d)(1)(B). Thus, the substantial justification test is comprised of two inquiries, one directed toward the government agency’s conduct, and the other toward the government’s attorneys’ conduct during litigation. See Gutierrez v. Barnhart, 274 F.3d 1255, 1259 (9th Cir. 2001). The test is an inclusive one; we consider whether the government’s position “as a whole” has “a reasonable basis in both law and fact.” Id. at 1258, 1261; see also Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013).

The district court, invoking our decision in Corbin v. Apfel, 149 F.3d 1051 (9th Cir. 1998), concluded that, in exceedingly complex cases, a court may appropriately determine whether the government was substantially justified at each “stage” of the litigation and make a fee award apportioned to those separate determinations. It accordingly disallowed fees for discrete positions taken by the government at different stages of the litigation because,

15 The partial dissent is incorrect to view the issue as solely a factual one, as we must consider the law as applied to the facts.

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in its view, the government’s positions in each instance were substantially justified. This approach was error, as it is contrary to the Supreme Court’s instructions in Jean.
In Jean, the Supreme Court rejected the government’s argument that it could assert a “‘substantial justification’ defense at multiple stages of an action.” 496 U.S. at 158– 59. Examining the statutory language, the Court noted the complete absence of any textual support for this position. Id. at 159. Moreover, “[s]ubsection (d)(1)(A) refers to an award of fees ‘in any civil action’ without any reference to separate parts of the litigation, such as discovery requests, fees, or appeals.” Id. The Court also noted that “[t]he reference to ‘the position of the United States’ in the singular also suggests that the court need make only one finding about the justification of that position.” Id. An amendment to the EAJA made clear that the “‘position of the United States’ means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based.” Pub. L. No. 99-80, § 2(c)(2)(B), 99 Stat. 183, 185 (1985) (codified at 28 U.S.C. § 2412(d)(2)(D)). As the Court reiterated, “Congress’ emphasis on the underlying Government action supports a single evaluation of past conduct.” Jean, 496 U.S. at 159 n.7 (citing H.R. Rep. No. 98-992, at 9, 13 (1984) (“[T]he amendment will make clear that the Congressional intent is to provide for attorney fees when an unjustifiable agency action forces litigation, and the agency then tries to avoid such liability by reasonable behavior during the litigation.”), and S. Rep. No. 98-586, at 10 (1984) (“Congress expressly recognized ‘that the expense of correcting error on the part of the Government should not rest wholly on the party whose willingness to litigate or adjudicate has helped to define the limits of Federal authority.’” (citation omitted))). The Jean Court concluded that “[t]he single finding that the

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Government’s position lacks substantial justification, like the determination that a claimant is a ‘prevailing party,’ thus operates as a one-time threshold for fee eligibility.” Id. at 160.
In sum, “[a]ny given civil action can have numerous phases,” as evidenced by the case at hand. Id. at 161. But the Supreme Court clearly instructed, and almost all courts have clearly understood,16 that “the EAJA—like other fee-

16 All but two circuits agree that “the EAJA—like other fee-shifting statutes—favors treating a case as an inclusive whole, rather than as atomized line-items.” See Glenn v. Comm’r of Soc. Sec., 763 F.3d 494, 498–99 (6th Cir. 2014) (adopting a single inquiry test and noting that district courts cannot simply compare the number of successful claims to the number of unsuccessful claims in a single appeal) (“Rather, the question is whether the government’s litigating position . . . is justified to a degree that could satisfy a reasonable person and whether it was supported by law and fact.” (internal quotation marks and citations omitted)); United States v. 515 Granby, LLC, 736 F.3d 309, 315–17 (4th Cir. 2013) (considering the government’s pre- and post-litigation conduct as a whole and noting that “an unreasonable prelitigation position will generally lead to an award of attorney’s fees under the EAJA”); United States v. Hurt, 676 F.3d 649, 653–54 (8th Cir. 2012) (examining government’s conduct as a whole); Gomez-Beleno v. Holder, 644 F.3d 139, 145 n.3 (2d Cir. 2011) (considering the government’s position as a whole rather than making separate substantial justification findings for different stages of the proceedings); Wagner v. Shinseki, 640 F.3d 1255, 1259 (Fed. Cir. 2011) (assessing the government’s litigation position in totality); Saysana v. Gillen, 614 F.3d 1, 5–7 (1st Cir. 2010) (same); Hackett v. Barnhart, 475 F.3d 1166, 1173–74 (10th Cir. 2007) (same); Sims v. Apfel, 238 F.3d 597, 602 (5th Cir. 2001) (same); United States v. Jones, 125 F.3d 1418, 1428–29 (11th Cir. 1997) (same); Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 131 (3d Cir. 1993) (adopting a single inquiry test, though contrary to our holding in this case, requiring a district court to “evaluate every significant argument made by an agency … to determine if the argument is substantially

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shifting statutes—favors treating a case as an inclusive whole, rather than as atomized line-items.” Id. at 161–62.
Our decision in Corbin is inapposite because that case hinged on jurisdictional features present when we review agency actions, but not present here. 149 F.3d 1051. In Corbin, a case involving judicial review of the agency’s denial of disability benefits, we upheld EAJA fee awards that were apportioned to successive stages of the underlying

justified” as “necessary to . . . determine whether, as a whole, the Government’s position was substantially justified”).
The D.C. and Seventh Circuits stand alone in declining to adopt a single inquiry test. The D.C. Circuit has rejected a reading of Jean that would preclude a claim-by-claim determination on the ground that such a rule would render the EAJA a “virtual nullity” because government conduct is nearly always grouped with or part of some greater, and presumably justified, action. Air Transport Ass’n of Canada v. F.A.A., 156 F.3d 1329, 1332 (D.C. Cir. 1998). In the same vein, the Seventh Circuit has cautioned against taking “judicial language out of context,” reasoning that Jean “does not address the question whether allocation is permissible under the [EAJA], thus allowing an award of fees for the part of the government’s case that was not substantially justified.” Gatimi v. Holder, 606 F.3d 344, 350 (7th Cir. 2010). We understand these concerns, but we think that Congress clearly contemplated the denial of attorneys’ fees even where some of the litigation conduct was unjustified when it used the qualifying term “substantial” rather than “total” or “complete.” See 28 U.S.C. § 2412(d)(1)(A); see also United States v. Rubin, 97 F.3d 373, 375–76 (9th Cir. 1996) (affirming the district court’s denial of fees because the government was substantially justified in most, but not all, of its positions). Further, we conclude that this happenstance will predominantly affect cases challenging the government agency’s litigation position, and likely have little effect in cases where the government agency’s conduct is unjustified, as EAJA “fees generally should be awarded where the government’s underlying action was unreasonable even if the government advanced a reasonable litigation position.” Marolf, 277 F.3d at 1159.

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litigation, in which we reversed and remanded for further proceedings before the agency.17 Id. at 1052. Because Corbin prevailed upon judicial review and was the prevailing party at that stage—whatever the ultimate disposition of his disability claim—he was entitled to EAJA attorneys’ fees. Id. at 1053. But, the administrative review context is unique because the different stages of the litigation are reviewed by different, unconnected quasi-judicial systems. In administrative review cases, we award fees when we vacate an administrative determination and require the agency to conduct new proceedings. See, e.g., Rueda-Menicucci v. I.N.S., 132 F.3d 493, 495 (9th Cir. 1997) (awarding fees to prevailing petitioners on a petition for review from a Board of Immigration Appeals proceeding without regard to whether they would later succeed on underlying asylum claims, explaining that “the remand terminates judicial proceedings and results in the entry of a final judgment”); Kelly v. Nicholson, 463 F.3d 1349, 1355–56 (Fed. Cir. 2006) (reversing and remanding denial of EAJA fees after an erroneous Agent Orange disability determination by the Department of Veterans Affairs); Former Emps. of Motorola Ceramic Prods. v. United States, 336 F.3d 1360, 1361 (Fed. Cir. 2003) (vacating and remanding denial of EAJA fees after an erroneous analysis of readjustment of benefits by the Department of Labor). This eligibility for fees arises whether the plaintiff challenges administrative action under a statute specifically providing for review, as with the examples above, or under an umbrella statute authorizing challenges to agency action, such as the APA. See, e.g.,

17 “Remand” is something of a misnomer, albeit one oft used in agency cases, as in fact “the civil action seeking judicial review of the . . . final decision,” Shalala v. Schaefer, 509 U.S. 292, 299 (1993) (internal citation and quotation marks omitted), is terminated, not remanded.

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Wood v. Burwell, 837 F.3d 969, 977 (9th Cir. 2016) (granting “prevailing party” status for success on an APA claim alleging procedural deficiencies, notwithstanding plaintiffs’ later loss on their “substantive” claims). By contrast, the various stages at issue here were all part of one litigation in federal court; the case was never returned to an agency for further proceedings. Therefore, Corbin does not apply.18
The district court thus erred in its piecemeal approach to substantial justification. Most fundamentally, the agency position upon which these going-on-thirteen years of litigation was based was not justified at all, much less substantially. The district court correctly recognized as much, finding: “The original sin—Agent Kelley’s mistake and that he did not learn about his error until his deposition eight years later—was not reasonable” under the EAJA. Whether the error is attributable to the failure to train Agent Kelley, the counter-intuitive nature of the form (check the categories that do NOT apply), the lack of cross-checking or other verification procedures, or anti-Muslim animus (Agent Kelley interviewed Dr. Ibrahim on December 23, 2004, as part of an International Terrorism Investigation), the precise cause is irrelevant to, and does not mitigate, the lack of any basis to place Dr. Ibrahim on the list, nor does it justify a reduction in fees.19 See Marolf, 277 F.3d at 1159 (holding

18 And even if Corbin did apply to this case, the district court misapplied Corbin because it evaluated whether each individual argument at each stage of the litigation was substantially justified, rather than the government’s position at each stage as a whole.
19 We make no findings, nor can we on appeal, as to how this mistaken placement came about, and we ascribe no nefarious motivations to the government as an entity. Again, we cannot know on

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that EAJA “fees generally should be awarded where the government’s underlying action was unreasonable even if the government advanced a reasonable litigation position”).
The district court correctly concluded that the government’s litigation position—to defend the indefensible, its No Fly list error—was not reasonable. As the district court stated, “[t]he government’s defense of such inadequate due process in Dr. Ibrahim’s circumstance— when she was concededly not a threat to national security— was not substantially justified.”
Those conclusions should have been the end of the district court’s EAJA eligibility analysis. After the government engaged in years of scorched earth litigation, it finally conceded during trial in December 2013 that Dr. Ibrahim is “not a threat to our country. She does not pose (and has not posed) a threat of committing an act of international or domestic terrorism with respect to an aircraft, a threat to airline passenger or civil aviation security, or a threat of domestic terrorism.” But the government knew this in November 2004, when Agent Kelley completed the form; it knew it in January 2005, when the DHS agent told Dr. Ibrahim she was not on the No Fly list; and it was well aware of it two weeks after Dr. Ibrahim filed the underlying action, when a government agent ordered her “Remove[d] from ALL watchlisting supported systems (For terrorist subjects: due to closure of case AND no nexus to terrorism)” and further stated that Dr. Ibrahim was not qualified for placement on either the No Fly or TSA Selectee lists. Yet knowing this, the government essentially

this record precisely why Dr. Ibrahim’s name was listed on the TSDB watchlist to begin with.

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doubled-down over the course of the litigation with a noholds-barred defense.
That some of the arguments made along the way by the government attorneys passed the straight face test until they were reversed on appeal does not persuade us that the government’s position was substantially justified.20 And the court is to consider the government agencies’ conduct during

20 We do not find that the government’s defense of this litigation was unreasonable at all points of the litigation. Instead, what was not substantially justified was the government’s continued defense of issues even after the reasons justifying their defense disappeared. For example, the government was justified in initially raising standing arguments, but was not justified in continuing to raise the same meritless standing arguments on numerous occasions once that issue had been definitively resolved by both our court and the district court. In a similar vein, while the government may have been justified in defending this litigation and refusing to tell Dr. Ibrahim her No Fly list status pursuant to its Glomar policy—a policy whereby the government refuses to confirm or deny the existence of documents in response to a Freedom of Information Act request, see N.Y. Times v. U.S. Dep’t of Justice, 756 F.3d 100, 105 (2d Cir. 2014), amended by 758 F.3d 436 (2d Cir. 2014)—any justification it had to defend Dr. Ibrahim’s No Fly list status vanished once she was made aware of her watchlist statuses and it had admitted its mistake in 2013.
Further, when considering the government’s litigation position, we also consider the government’s positions on discovery and other nonmerits issues, i.e., the government’s conduct as a whole. See United States v. Rubin, 97 F.3d 373, 375 (9th Cir. 1996) (citing United States v. Powell, 379 U.S. 48, 57–58 (1964)) (considering government’s conduct during discovery when performing substantial justification inquiry). Here, as discussed at length below, the government played discovery games, made false representations to the court, misused the court’s time, and interfered with the public’s right of access to trial. Thus, the government attorneys’ actual conduct during this litigation was ethically questionable and not substantially justified.

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the course of this litigation as well. See 28 U.S.C. § 2412(d)(2)(D) (“‘position of the United States’ means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based”). From the suit’s inception, the government agencies’ actions, including their on-again, offagain placement of Dr. Ibrahim on various government watchlists; refusal to allow her to reenter the United States at all, even to attend her own trial; and delay of her U.S.-born, U.S.-citizen daughter’s attendance at trial, were unreasonable and served only to drive up attorneys’ fees. Indeed, as a consequence of the government’s conduct, Dr. Ibrahim was deposed in London, England, as opposed to the Northern District of California—which also drove up the costs and fees.
In sum, neither the agencies’ conduct nor the government’s litigation position was substantially justified.21 The EAJA mandates that attorneys’ fees be

21 The partial dissent argues that “Supreme Court precedent requires that we allow the district court to make [the] determination” as to whether the government’s position was substantially justified. Concurring & Dissenting Op. at 78 (citing Pierce, 487 U.S. at 560); see also id. at 78–81. Not so. The dissent is actually quoting from the portion of the Pierce decision where Justice Scalia is deciding which of the three general standards of review should apply to the district court’s “substantial justification” determination—de novo, clear error, or abuse of discretion. Pierce, 487 U.S. at 558. He decides that the abuse of discretion standard applies because the appropriate degree of deference is inherent in the standard itself. Id. at 559–63. Here, we applied the abuse of discretion standard and concluded the district court abused its discretion. Notably, in Pierce, the Court also declared that an abuse of discretion standard will “implement our view that a ‘request for attorney’s fees should not result in a second major litigation.’” Id. at 563 (quoting Hensley, 461 U.S. at 437). But that is exactly what has happened here. See infra Part V. We have already engaged in the

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awarded to Dr. Ibrahim’s attorneys, subject only to reasonableness review. Jean, 496 U.S. at 161. “It remains for the district court to determine what fee is ‘reasonable.’” Hensley, 461 U.S. at 433.

B. Reasonableness
In Hensley, the Supreme Court set out a two-pronged approach for determining the amount of fees to be awarded when a plaintiff prevails on only some of his claims for relief or achieves “limited success.” Sorenson v. Mink, 239 F.3d 1140, 1147 (9th Cir. 2001) (citing Hensley, 461 U.S. at 436– 37). First, we ask, “did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded?” Hensley, 461 U.S. at 434. This inquiry rests on whether the “related claims involve a common core of facts or are based on related legal theories,” Webb v. Sloan, 330 F.3d 1158, 1168 (9th Cir. 2003) (citing Hensley, 461 U.S. at 435), with “the focus . . . on whether the claims arose out of a common course of conduct,” id. at 1169 (emphasis added) (citing Schwarz, 73 F.3d at 903 (interpreting Hensley)). Second, we ask whether “the plaintiff achieve[d] a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?” Hensley, 461 U.S. at 434. If the court concludes the prevailing party achieved “excellent results,” it may permit a full fee award—that is, the entirety of those hours reasonably expended on both the prevailing and unsuccessful but related claims. Id. at 435; Schwarz, 73 F.3d at 905–06.

“unusual expense” of reviewing over 7,000 pages of record and over 1,000 pages of trial exhibits, Pierce, 487 U.S. at 560, and we see no further need to triplicate this work.

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1. “Unsuccessful Claims”
The district court erroneously determined that Dr. Ibrahim was entitled to reasonable fees and expenses with respect to only her procedural due process claim, which provided her with substantial relief, and her related substantive due process and APA claims. Because Dr. Ibrahim’s equal protection, APA, substantive due process, and First Amendment claims “would not lead to any greater relief than [what the district court had] already ordered,” the district court declined to reach them. The district court then treated these unreached claims as unsuccessful, even while acknowledging that Dr. Ibrahim “did not outright lose on these claims,” and disallowed counsel’s reasonable fees and expenses on the “unrelated” First Amendment and equal protection claims. This overall approach was error.
The Hensley Court recognized that in complex civil rights litigation, plaintiffs may raise numerous claims, not all of which will be successful: “Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court’s rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.” Hensley, 461 U.S. at 435 (emphasis added). And where, as here, “a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee.” Id. The district court’s rationale—that because Dr. Ibrahim won substantial relief on one claim, and it was therefore unnecessary to reach her other equally pursued claims that could also lead to the same relief, no fees were available for the unreached claim—turns Hensley on its head.
We are aware of no court that has held that a plaintiff who obtains full relief on some claims, thereby rendering it unnecessary to reach the remaining claims, “lost” on the unreached claims. When confronted with this question, our

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sister circuits that have addressed the issue have uniformly declined to adopt the district court’s analysis. The Sixth Circuit “decline[d] the government’s invitation to apportion [plaintiff’s] attorney fees to the single claim addressed in [its] previous opinion.” Sakhawati v. Lynch, 839 F.3d 476, 480 (6th Cir. 2016). The Eighth Circuit also refused to reduce fees where the district court found in plaintiffs’ favor on their state claim without reaching the federal claims, because plaintiffs’ federal claims “were alternative grounds for the result the district court reached” and “plaintiffs fully achieved [their] goal by prevailing on their state constitutional claim.” Emery v. Hunt, 272 F.3d 1042, 1047 (8th Cir. 2001). And the Seventh Circuit rejected defendants’ argument that plaintiff did not succeed on her sexual harassment claim where “the court did not find in [defendant’s] favor on the sexual harassment claim; it merely did not reach the merits of the issue.” Dunning v. Simmons Airlines, Inc., 62 F.3d 863, 874 (7th Cir. 1995).
We agree with our sister circuits that a district court’s “failure to reach” certain grounds does not make those grounds “unsuccessful,” and conclude that the district court clearly erred in holding that Dr. Ibrahim’s unreached claims were “unsuccessful.”
2. Related Claims
The district court and the original panel exacerbated this error in analyzing whether the claims the district court did not reach were related to her successful claims. The district court correctly concluded that Dr. Ibrahim’s substantive due process and APA claims were related to her prevailing procedural due process claim and allowed recovery of some of those fees and expenses. Without much analysis, however, the district court also concluded that her equal protection and First Amendment claims were not related

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“because they involved different evidence, different theories, and arose from a different alleged course of conduct.” The three-judge panel stepped into the breach with its newly devised “mutually exclusive” rationale to determine that the claims were unrelated because, after trial, the district court found that Dr. Ibrahim was placed on the No Fly list due to negligence, and her First Amendment and equal protection claims alleged intentional discrimination. The three-judge panel concluded that the two mens rea requirements were “mutually exclusive.”
But both the district court and the now-withdrawn opinion failed to follow clear precedent to the contrary. The Court made clear in Hensley that, while hours spent on an unsuccessful claim “that is distinct in all respects from [the plaintiff’s] successful claim” should be excluded, “[w]here a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney’s fee reduced simply because the district court did not adopt each contention raised.” 461 U.S. at 440. Construing the Hensley Court’s statement that claims are “unrelated” if they are “entirely distinct and separate” from the prevailing claims, we have held that “related claims involve a common core of facts or are based on related legal theories.” Webb, 330 F.3d at 1168 (citations omitted). We do not require commonality of both facts and law to conclude that claims are related. Id. Rather “the focus is to be on whether the unsuccessful and successful claims arose out of the same ‘course of conduct.’ If they didn’t, they are unrelated under Hensley.” Schwarz, 73 F.3d at 903. The three-judge panel’s introduction of the mutual-exclusivity test is contrary to Supreme Court

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precedent,22 our precedent,23 and the precedent of every
other circuit interpreting Hensley that has addressed the question.24 We are aware of no other court that has adopted

22 See, e.g., Hensley, 461 U.S. at 438 (concluding that, despite the differences in legal theories and some facts, “[g]iven the interrelated nature of the facts and legal theories in this case, the District Court did not err in refusing to apportion the fee award mechanically on the basis of respondents’ success or failure on particular issues”).
23 See, e.g., Webb, 330 F.3d at 1169 (holding that the plaintiff’s unsuccessful false arrest claim was “unquestionably” related to the successful claims for false imprisonment and malicious prosecution, and allowing his attorney to recover fees for time spent in pursuit of that claim because “all [of plaintiff’s] claims arose out of a common core of facts and a common course of conduct: Plaintiff’s arrest, detention, and prosecution”); see also Thorne v. City of El Segundo, 802 F.2d 1131, 1142 (9th Cir. 1986) (reasoning that a police department clerk-typist’s claims for discriminatory hiring and unconstitutionally obtained information could be related because they both concerned a polygraph interview she underwent during which the department discussed her sexual history); cf. Schwarz, 73 F.3d at 902–04 (determining that an employee’s claims of employment discrimination against offices in Phoenix, Arizona and Portland, Oregon were distinct because they were predicated on independently discriminatory conduct by different actors, relating to different employment positions, in different states).
24 See, e.g., Murphy v. Smith, 864 F.3d 583, 586 (7th Cir. 2017) (“Where claims are closely related, however, a plaintiff who obtains excellent results should recover a fully compensatory fee even if he did not prevail on every contention in the lawsuit or if a court rejected or did not reach certain grounds supporting the excellent result.” (citation omitted)); Sakhawati v. Lynch, 839 F.3d 476, 480 (6th Cir. 2016) (declining to reduce fees where all of the claims pertained to one asylum application and related evidence); SecurityPoint Holdings, Inc. v. Transp. Sec. Admin., 836 F.3d 32, 41 (D.C. Cir. 2016) (“We believe that [the plaintiff’s] petition for review presented only one claim for relief— that TSA’s denial of the cease-and-desist request was unlawful and must be set aside. Its assertion of several distinct grounds does not create multiple claims. But even if we treated the various grounds as separate

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claims, they are related in the sense meant by Hensley.” (citation omitted)); Wal-Mart Stores, Inc. v. Barton, 223 F.3d 770, 773 (8th Cir. 2000) (applying Hensley to 42 U.S.C. § 2000e-5(k) and finding that the plaintiff’s “state claims of assault and battery, outrage, and negligent retention shared a common core of facts with her Title VII claims, all of which arose from [the defendant’s] alleged sexual harassment of [the plaintiff]”); United States v. Jones, 125 F.3d 1418, 1430 (11th Cir. 1997) (“[U]nder Hensley, a plaintiff who has prevailed against the United States on one claim may recover for all the hours reasonably expended on the litigation even though he or she failed to prevail on other claims involving a common core of facts or related legal theories.”); Jane L. v. Bangerter, 61 F.3d 1505, 1512 (10th Cir. 1995) (“We have refused to permit the reduction of an attorneys fee request if successful and unsuccessful claims are based on a ‘common core of facts.’ . . . Claims are also related to each other if based on ‘related legal theories.’” (citations omitted)); Keely v. Merit Sys. Prot. Bd., 793 F.2d 1273, 1275– 76 (Fed. Cir. 1986) (rejecting the government’s argument that the court should reduce attorneys’ fees and individually evaluate each of the plaintiff’s separate arguments where the plaintiff only prevailed on one); Citizens Council of Del. Cty. v. Brinegar, 741 F.2d 584, 596 (3d Cir. 1984) (concluding that “it is clear that there was a sufficient interrelationship among the essential claims advanced by the plaintiff in the course of the litigation that the district court was not required to apportion fees based on the success or failure of any particular legal argument advanced by the plaintiffs”); cf. Paris v. U.S. Dep’t of Hous. & Urban Dev., 988 F.2d 236, 240 (1st Cir. 1993) (concluding, in the context of analyzing a related provision of the Fair Housing Act, that if the case involves what is essentially a single claim arising from “a common nucleus of operative fact,” and the plaintiff advances separate legal theories that “are but different statutory avenues to the same goal,” then all of the time should be compensable), overruled on other grounds by Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001).
Only the Second Circuit has interpreted Hensley to allow the lodestar reductions in cases where multiple claims involve a common nucleus of fact. Kassim v. City of Schenectady, 415 F.3d 246, 256 (2d Cir. 2005) (“[A] district judge’s authority to reduce the fee awarded to a prevailing plaintiff below the lodestar by reason of the plaintiff’s ‘partial or limited success’ is not restricted . . . to cases of multiple discrete

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the mutual-exclusivity test, and we now disavow its use as a standard for relatedness.
All of Dr. Ibrahim’s claims arose from a “common course of conduct” and are therefore related under Hensley. See Webb, 330 F.3d at 1169. The First Amended Complaint at bottom was a challenge to “defendants’ administration, management, and implementation of the ‘No-Fly List.’” Specifically, Dr. Ibrahim alleged that the manner in which the government created, maintained, updated, and disseminated the No Fly list led to the humiliating treatment she experienced at SFO in January 2005 and afterwards, as she was unable to learn whether she was on or off the list or why she was placed there in the first place. She alleged several alternative theories for this treatment, five of which ultimately went to trial against the federal government. That the government’s actions arose from negligence or unconstitutional animus could not have been known until the case was tried, and we still do not know whether, in addition to Agent Kelley’s negligence in placing her on the No Fly list, the government’s initial interest in Dr. Ibrahim stemmed from its allegedly heightened interest in foreign students from Muslim countries here on U.S. student visas,25 or her

theories . . . .”). The Fourth and Fifth Circuits have not yet reached this issue. See Vaughns by Vaughns v. Bd. of Educ. of Prince George’s Cty., 770 F.2d 1244, 1245 (4th Cir. 1985) (affirming the district court’s fee determination based on the standard of review, and not reaching whether its relatedness analysis, which focused on whether the claims arose from a common course of conduct, was accurate).
25 In opening argument at trial, Dr. Ibrahim’s attorney Elizabeth Pipkin stated:
In another Homeland Security presidential directive, the president calls for the end of abuse of student visas

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husband’s recent visit, or her regular attendance at a mosque, or her involvement in the Islamic Society of Stanford University, which, if true, would have shown discriminatory intent. And because the district court did not reach the First Amendment and equal protection claims, we will never know whether placement on the TSDB was a result of discrimination on the basis of her race, religion, country of origin, or association with Muslims and Muslim groups.
There is no question that all of these claims arise from the government’s common course of conduct toward Dr. Ibrahim. To hold otherwise would ignore the realities of lawyering. As here, the key question in a lawsuit is often not what happened—but why. Before the litigation begins and while it is ongoing, the plaintiff and her lawyers cannot know for sure why someone else did something, but may, as here, have evidence suggesting various possibilities. So, as here, the plaintiff raises alternative claims and theories as to

and increased the scrutiny of foreign students during the time that Dr. Ibrahim was studying at Stanford. In the months prior to the November 2004 presidential election and continuing up until the inauguration, the government ramped up its efforts to interrogate Muslims in America in a national dragnet called the October Plan, or Operation Front Line.
The government’s decision to target foreign students had a strong effect on the Muslim student community at Stanford. That community emailed its members, including Dr. Ibrahim, to advise them that there may be an increased likelihood that law enforcement would contact them and that if they were contacted, they should cooperate.
The district court never made a factual finding regarding whether this allegation was true.

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why something was done, some of which may be ultimately inconsistent, with regard to a single set of facts. The plaintiff’s claims are then tested by dispositive motions, discovery, and perhaps (as happened here) trial. The fact that one claim or theory is eventually determined to be true does not mean that the claims were unrelated to one another.
It is common to plead that a defendant committed some act “intentionally, knowingly, or recklessly,” or simultaneously to bring different claims premised on distinct mental states. This widely accepted litigation strategy is accommodated by the clear standard pronounced by the Supreme Court and previously applied by our court, which focuses on whether the claims are premised on an “entirely distinct and separate” set of facts, not whether they are based on different “mental states.” The analysis in the nowwithdrawn opinion shows that had it applied the correct standard, it would have recognized that all of Dr. Ibrahim’s claims were based on the same set of facts—the placement of Dr. Ibrahim’s name on the government’s watchlists— regardless of what “mental state” was required to prove each particular claim. Ibrahim III, 835 F.3d at 1063 (“[I]f the government negligently placed [Dr.] Ibrahim on its watchlists because it failed to properly fill out a form, then it could not at the same time have intentionally placed [Dr.] Ibrahim on the list based on constitutionally protected attributes [Dr.] Ibrahim possesses, and vice versa.”).
Allowing hindsight to creep in to fee awards also would put lawyers in an untenable ethical position. Res judicata bars claims that could have been raised in an earlier litigation that arise out of the same “transactional nucleus of facts.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 714 (9th Cir. 2001) (internal quotation marks and citation omitted). Ethical obligations—or perhaps more likely, the

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specter of malpractice liability—thus require a lawyer to
bring all reasonably related, viable claims in a single action.26 But the three-judge panel’s “mutually exclusive”

26 Our sister circuits have recognized the difficult task facing lawyers navigating the complexities of civil rights litigation. The D.C. Circuit, for example, has emphasized that
[a] lawyer who wins full relief for her client on one of several related claims . . . is not apt to be criticized because the court failed to reach some of the grounds, or even ruled against the client on them. . . . After the fact, it is of course easier to identify which arguments were winners and which were losers and state forcefully how an attorney’s time could have been better spent. But litigation is not an exact science. In some cases, the lawyer’s flagship argument may not carry the day, while the court embraces a secondary argument the lawyer rated less favorably. That is precisely why lawyers raise alternative grounds—a practice which is explicitly sanctioned by our Rules of Civil Procedure.
Goos v. Nat’l Ass’n of Realtors, 68 F.3d 1380, 1386 (D.C. Cir. 1995); see also id. at 1384–86.
The Seventh Circuit similarly has rejected the panel’s ex post approach:
For tactical reasons and out of caution lawyers often try to state their client’s claim in a number of different ways, some of which may fall by the wayside as the litigation proceeds. The lawyer has no right to advance a theory that is completely groundless or has no factual basis, but if he presents a congeries of theories each legally and factually plausible, he is not to be penalized just because some, or even all but one, are rejected, provided that the one or ones that succeed give him all that he reasonably could have asked for.

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rule raises the possibility that some fraction (perhaps a substantial one) of these reasonably related, ethically compelled claims, which a lawyer must research and litigate, will be excluded from a fee award.
Dr. Ibrahim’s lawyers may have violated their ethical duties and risked malpractice if they had failed to bring all claims that their client could present in good faith. See Model Rules of Prof’l Conduct r. 1.3 cmt. (Am. Bar Ass’n 2016) (“A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.”). Dr. Ibrahim and her lawyers faced an uphill battle. The government vigorously defended this case, and Dr. Ibrahim did not have access to meaningful discovery until a few months before trial, after years of litigation and two appeals—she was fighting blind against the Many-Faced

Lenard v. Argento, 808 F.2d 1242, 1245–46 (7th Cir. 1987). Other circuits are in accord. See, e.g., Jordan v. City of Cleveland, 464 F.3d 584, 604 (6th Cir. 2006) (“[L]itigation is not an ‘exact science’: Lawyers cannot preordain which claims will carry the day and which will be treated less favorably.”); Robinson v. City of Edmond, 160 F.3d 1275, 1283 (10th Cir. 1998) (“Litigants should be given the breathing room to raise alternative legal grounds without fear that merely raising an alternative theory will threaten the attorney’s subsequent compensation.”).

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Bureaucratic God.27 And as demonstrated by the complex and longstanding procedural history, it was not even clear that Dr. Ibrahim could advance the case beyond the dismissal stage.

Applying the correct “common course of conduct” test to Dr. Ibrahim’s claims for procedural and substantive due process, violations of her First Amendment and equal protection rights and the APA, we conclude that Dr. Ibrahim meets the first prong of Hensley. All of Dr. Ibrahim’s claims arose from her wrongful placement on the No Fly list, and are therefore related. Fees for each of these claims are thus recoverable. All of these claims derive from the government’s interest in Dr. Ibrahim’s activities, which led to her placement on the No Fly list, her placement on and off various other watchlists (which the district court deemed “Kafkaesque”), her attempts to learn why she was on the No Fly list, her attempts to get herself removed from the No Fly list, and the government’s intransigence in setting the record straight for almost a decade. As the district court found, this treatment had a “palpable impact, leading to the humiliation, cuffing, and incarceration of an innocent and incapacitated air traveler.” Dr. Ibrahim’s “litany of troubles” flow directly from her erroneous placement on the No Fly list, as do all of the claims that went to trial. None of the claims was distinct or separable from another, and each claim sought the same relief Dr. Ibrahim ultimately obtained.

27 See Game of Thrones: The Red Woman (Home Box Office, Inc. broadcast Apr. 24, 2016).

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3. Level of Success
Dr. Ibrahim also satisfied Hensley’s second prong because she “achieved a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award.” Sorenson, 239 F.3d at 1147 (internal punctuation omitted) (quoting Hensley, 461 U.S. at 434). The district court found that Dr. Ibrahim had only “limited” success. We disagree.
The achievement of Dr. Ibrahim and her attorneys in successfully challenging her No Fly list placement and forcing the government to fix its error was not just “excellent,” but extraordinary. Hensley, 461 U.S. at 435. Although this is not a class action, and thus we assess Dr. Ibrahim’s individual success, the pathbreaking nature of her lawsuit underscores her achievement. Dr. Ibrahim was the first person ever to force the government to admit a terrorist watchlisting mistake; to obtain significant discovery regarding how the federal watchlisting system works; to proceed to trial regarding a watchlisting mistake; to force the government to trace and correct all erroneous records in its customer watchlists and databases; to require the government to inform a watchlisted individual of her TSDB status; and to admit that it has secret exceptions to the watchlisting reasonable suspicion standard. Dr. Ibrahim, in her first appeal to our court, established that district courts have jurisdiction over challenges to placement on terrorist watchlists, including the No Fly list. Ibrahim I, 538 F.3d at 1254–57. In her second appeal, she established that even aliens who voluntarily depart from the U.S. have standing to bring constitutional claims when they have had a significant voluntary connection with the U.S. Ibrahim II, 669 F.3d at 993–94. Moreover, on her journey, Dr. Ibrahim established important principles of law, benefiting future individuals

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wrongfully placed on government watchlists. Previously, most such challenges failed at the pleading stage. See, e.g., Shearson v. Holder, 725 F.3d 588 (6th Cir. 2013); Rahman v. Chertoff, No. 05 C 3761, 2010 WL 1335434 (N.D. Ill. Mar. 31, 2010); Scherfen v. U.S. Dep’t of Homeland Sec., No. 3:CV-08-1554, 2010 WL 456784 (M.D. Penn. Feb. 2, 2010); Green v. Transp. Sec. Admin., 351 F. Supp. 2d 1119 (W.D. Wash. 2005).
Dr. Ibrahim’s victory affected more than just her case— it affected the way all individuals can contest their placement on these watchlists.28 The EAJA
rests on the premise that a party who chooses to litigate an issue against the Government is not only representing his or her own vested interest but is also refining and formulating public policy. An adjudication or civil action provides a concrete, adversarial test of Government regulation and thereby insures the legitimacy and fairness of the law.

Escobar Ruiz v. I.N.S., 813 F.2d 283, 288 (9th Cir. 1987) (quoting H.R. Rep. No. 1418, at 10 (1980)). Dr. Ibrahim refined federal watchlisting policy by creating a roadmap for other similarly situated plaintiffs to seek judicial redress for alleged wrongful placement on government watchlists.29

28 The government has since changed its policy regarding contesting placement on the No Fly list. It now allows certain categories of individuals to challenge their No Fly list status.
29 For example, in Latif v. Holder, 28 F. Supp. 3d 1134 (D. Or. 2014), where U.S. citizens and lawful permanent residents challenged their allegedly wrongful placement on the No Fly list, the district court

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The significance of Dr. Ibrahim’s roadmap cannot be
overstated. Any person could have the misfortune of being mistakenly placed on a government watchlist,30 and the consequences are severe.31 Placement on the No Fly list, if

held at the summary judgment stage that the DHS Traveler Redress Inquiry Program process “falls far short of satisfying the requirements of due process,” and that “the absence of any meaningful procedures to afford Plaintiffs the opportunity to contest their placement on the No-Fly List violates Plaintiffs’ rights to procedural due process.” Id. at 1161. In evaluating the procedural due process factors from Mathews v. Eldridge, 424 U.S. 319 (1976), the Latif court cited to Dr. Ibrahim’s case, the only available case involving a due process challenge to watchlisting procedures, to find that the plaintiffs had been deprived of their liberty interests in travel, and that the DHS redress process contains a high risk of erroneous deprivation of constitutionally-protected interests. 28 F. Supp. 3d at 1148, 1152–53. Today, relief from No Fly list errors is widely recognized as available. See, e.g., Murtaza Hussain, How a Young American Escaped the No Fly List, Intercept (Jan. 21, 2016, 4:30 AM), https://theintercept.com/2016/01/21/how-a-young-americanescaped-the-No-Fly-list/.
30 As of 2014, it was reported that there are 680,000 individuals listed in the TSDB and 47,000 individuals listed on the No Fly list, and that these lists are littered with errors. See Ibrahim II, 669 F.3d at 990 (noting that there are significant numbers of erroneous placements on the federal watchlists).
31 Placement on the No Fly list can also affect an individual’s visa eligibility, lead to arrest and temporary incarceration, and be considered in the probable cause inquiry of a bail determination. See United States v. Duque, No. CR-09-265-D, 2009 WL 3698127, at *5 (W.D. Okla. Nov. 2, 2009) (describing presence on the VGTOF as part of “officers’ collective knowledge” reasonably used to determine probable cause for an arrest). What is more, “[the U.S. government] shares the TSDB [watchlisting database] with 22 foreign governments,” so there are doubtless international repercussions even if a listed person never tries to enter the United States, fly over U.S. airspace, or use a U.S. carrier. Ibrahim II, 669 F.3d at 993.

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left unchanged, prevents an individual from ever boarding an airplane that touches the vast expanse of U.S. airspace. Travel by air has become a normal part of our lives, whether for work, vacations, funerals, weddings, or to visit friends and family. In 2017 alone, there were 728 million airline passengers in the United States.32 It is debilitating to lose the option to fly to one’s intended destination. Today, those misplaced on the No Fly list can contest that placement, and, if misplaced, regain their right to flight. See Saenz v. Roe, 526 U.S. 489, 498 (1999) (“[T]he ‘constitutional right to travel from one State to another’ is firmly embedded in our jurisprudence.” (quoting United States v. Guest, 383 U.S. 745, 757 (1966))).
A full award of attorneys’ fees here is consistent with the EAJA’s goal of creating a level playing field in cases in which there is an imbalance of power and resources. “The EAJA grew out of a concern for the unequal position of the individual vis à vis an insensitive and ever-expanding governmental bureaucracy. The House Report expresses concern about the fact that . . . the government with its greater resources and expertise can in effect coerce compliance with its position.” Escobar Ruiz, 813 F.2d at 288 (internal quotation marks and citation omitted). Dr. Ibrahim—a professor and person of ordinary means—did

Dr. Ibrahim suffered these consequences. She was deprived of her right to travel, Kent v. Dulles, 357 U.S. 116, 125 (1958): she was unable to return to Stanford to pursue her degree; forced to leave the United States permanently, without warning, after living here for thirteen years; and not allowed to return to testify at her own trial. She was arrested, Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004), and humiliated, Paul v. Davis, 424 U.S. 693, 701, 711 (1976).
32 See Airline Activity: National Summary (U.S. Flights), Bureau Transp. Stats., https://www.transtats.bts.gov/ (last visited July 26, 2018).

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not have the resources to pay an attorney to pursue her claims, which ultimately cost more than $3.6 million dollars to litigate. And the small seventeen-lawyer law firm that represented her, McManis Faulkner, had similarly limited resources, but, when others refused, they agreed to take on her case, uncertain whether they would ever be compensated. On the other side of the table was the government and its virtually unlimited resources. The government had a team of twenty-six lawyers—more lawyers than McManis Faulkner employed—and spent at least 13,400 hours—in other words, 558 days of one person working 24 hours a day—vigorously defending this litigation.
Accordingly, we find that Dr. Ibrahim achieved excellent results and is therefore entitled to reasonable fees consistent with that outcome.
C. Bad Faith
Generally, attorneys’ fees are capped under the EAJA at $125 per hour. 28 U.S.C. § 2412(d)(2)(A)(ii). The EAJA provides, however, that “[t]he United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law.” 28 U.S.C. § 2412(b). Thus, under the common law a court may assess attorneys’ fees against the government if it has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Rodriguez v. United States, 542 F.3d 704, 709 (9th Cir. 2008) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 45– 46 (1991)). “[W]e hold the government to the same standard of good faith that we demand of all non-governmental parties.” Id. The purpose of such an award is to “deter abusive litigation in the future, thereby avoiding harassment and protecting the integrity of the judicial process.” Copeland v. Martinez, 603 F.2d 981, 984 (D.C. Cir. 1979).

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“The district court may award attorney fees at market rates for the entire course of litigation, including time spent preparing, defending, and appealing the two awards of attorney fees, if it finds that the fees incurred during the various phases of litigation are in some way traceable to the [government’s] bad faith.” Brown v. Sullivan, 916 F.2d 492, 497 (9th Cir. 1990). And in evaluating whether the government acted in bad faith, we may examine the government’s actions that precipitated the litigation, as well as the litigation itself. Rawlings v. Heckler, 725 F.2d 1192, 1195–96 (9th Cir. 1984); see also Hall v. Cole, 412 U.S. 1, 15 (1973) (concluding that “the dilatory action of the union and its officers” in expelling an individual from the union following his resolutions unsuccessfully condemning union management’s alleged undemocratic and short sighted policies constituted bad faith (internal quotation marks and citation omitted)); Dogherra v. Safeway Stores, Inc., 679 F.2d 1293, 1298 (9th Cir. 1982) (concluding that an employer would have acted in bad faith if it pursued a defense of an action based on a lie).
“A finding of bad faith is warranted where an attorney knowingly or recklessly raises a frivolous argument, or argues a meritorious claim for the purpose of harassing an opponent.” Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 649 (9th Cir. 1997) (internal quotation marks and citation omitted). “Mere recklessness does not alone constitute bad faith; rather, an award of attorney’s fees is justified when reckless conduct is combined with an additional factor such as frivolousness, harassment, or an improper purpose.” Rodriguez, 542 F.3d at 709 (internal quotation marks omitted) (quoting Fink v. Gomez, 239 F.3d 989, 993–94 (9th Cir. 2001)). It is also shown when litigants disregard the judicial process. Brown, 916 F.2d at 496 (concluding that the “cumulative effect” of the Appeals

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Council’s review of a claim for social security benefits, including the “failure to review a tape of an ALJ’s hearing, a statutory duty, and other acts that caused delay and necessitated the filing and hearing of additional motions, viz., the Secretary’s delay in producing documents and in transcribing the tape” constituted bad faith); see also Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 1758 (2014) (allowing fee-shifting for willful disobedience of a court’s order); Beaudry Motor Co. v. Abko Props., Inc., 780 F.2d 751, 756 (9th Cir. 1986) (bringing a case barred by the statute of limitations); Toombs v. Leone, 777 F.2d 465, 471–72 (9th Cir. 1985) (deliberately failing to comply with local rules regarding exchange of exhibits); Int’l Union of Petroleum & Indus. Workers v. W. Indus. Maint., Inc., 707 F.2d 425, 428–29 (9th Cir. 1983) (refusing to abide by arbitrator’s award).
Though the district court cited some of this relevant case law, including Rodriguez, Chambers, and Brown, it erroneously applied a piecemeal approach to its bad faith determination in conflict with the cases it cited. See Rodriguez, 542 F.3d at 712. We have long established that to make a bad faith determination, we must review the totality of the government’s conduct. See Brown, 916 F.2d at 496; see also Rawlings, 725 F.2d at 1196. However, “it is unnecessary to find that every aspect of a case is litigated by a party in bad faith in order to find bad faith by that party.” Rodriguez, 542 F.3d at 712.
The district court clearly erred by failing to consider the totality of the government’s conduct, particularly its comportment after discovering Agent Kelley’s error. See Mendenhall v. Nat’l Transp. Safety Bd., 92 F.3d 871 (9th Cir.

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1996).33 In Mendenhall, we held that a government agency, there the FAA, acted in bad faith, thereby allowing the prevailing party, Mendenhall, to recover fees at a reasonable market rate. We held that “[t]he moment the FAA acknowledged” that its complaint against her was baseless, “the agency was no longer justified in pursuing its action.” Id. at 877. “The agency’s continuation of an action it knew to be baseless . . . is a prime example of bad faith.” Id. (internal quotation marks omitted) (quoting Brown, 916 F.2d at 495–96).

The only post-litigation agency conduct that the district court considered was whether the government obstructed Dr. Ibrahim or her daughter, Rafeah, from appearing at trial. The court unreasonably concluded, at least with respect to Rafeah, that there was no evidence that the government did so. That conclusion by the district court is “without support in inferences that may be drawn from the facts in the record” and is thus clearly erroneous. Crittenden v. Chappell, 804 F.3d 998, 1012 (9th Cir. 2015). Dr. Ibrahim’s daughter, a U.S. citizen with a U.S. passport, was flagged by the

33 The district court made no findings as to whether the agencies acted in bad faith before litigation, and we do not have a record basis upon which to consider this argument. As the district court speculated, however, the government’s initial interest in Dr. Ibrahim may have rested on shaky constitutional grounds because it may have been motivated by racial or religious animus. Dr. Ibrahim alleged that, at the time Agent Kelley first investigated Dr. Ibrahim for potential watchlisting placement, the government had a heightened interest in foreign students like her who were in the United States from Muslim countries on U.S. student visas. Stanford University had specifically contacted these students, warning them of the government’s potential interest. However, because the district court did not reach this issue despite having more familiarity with the extensive record, we cannot conclude that the government’s initial interest in Dr. Ibrahim was in bad faith.

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National Targeting Center (NTC) as potentially inadmissible to the United States. NTC determined that she had been listed in the TSDB database by other government entities as an individual about whom those agencies possessed “substantive ‘derogatory’ information” that “may be relevant to an admissibility determination under the Immigration and Nationality Act.” But, as a U.S. citizen, Dr. Ibrahim’s daughter clearly was not subject to the INA.
Although Dr. Ibrahim’s daughter carried a U.S. passport and U.S. Customs and Border Protection recognized that she appeared to be a U.S. citizen, NTC requested that Philippine Airlines perform additional screening of her in the following e-mail:
[Subject line:] POSSIBLE NO BOARD REQUESTPNR WNDYJS

[Body:] NOTICE TO AIR CARRIER The [DHS and U.S. Customs and Border Protection] recommends the airline to contact [the carrier liaison group] when the following passenger shows up to check in . . . .

After Philippine Airlines received this notice, Rafeah was not permitted to board her flight, causing her to miss her mother’s trial, where she had been listed as a witness. The government did not update the TSDB to reflect that Dr. Ibrahim’s daughter was a U.S. citizen until after it had purportedly investigated the situation.
The district court also disregarded the government’s response to Agent Kelley’s error once the error was discovered. On remand, the district court should take into account in its analysis of bad faith the government’s conduct together with the consequences Dr. Ibrahim suffered as a

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result. For example, the district court failed to consider the February 2006 order to remove Dr. Ibrahim from all watchlist databases because she had “no nexus to terrorism.” Despite this order, the government continued to place Dr. Ibrahim on and off federal watchlists, providing no reasonable explanation for Dr. Ibrahim’s never-ending transitions in watchlist status. Further, the only justification for her continued watchlist placement is claimed to be a state secret. This assertion begs the question: Why was Dr. Ibrahim added to any watchlist once the government determined she was not a threat? Moreover, was there any justification for her seemingly random addition to and removal from watchlists? The district court should also consider the government’s failure to remedy its own error until being ordered to do so and its failure to inform Agent Kelley of his mistake for eight years.34
The district court also wrongly rejected as a basis for bad faith the government’s numerous requests for dismissal on standing grounds post-Ibrahim II, where we determined unequivocally that Dr. Ibrahim had Article III standing even though she voluntarily left the United States. The government knowingly pursued baseless standing arguments in its third motion to dismiss, its motion for summary judgment, statements during trial, and post-trial proposed findings of fact and conclusions of law. The district court found that the government’s position was “unreasonable,” particularly after it “continue[d] to seek dismissal based on

34 Even after Agent Kelley learned of his mistake, Agent Kelley never reviewed his old files to see if he had accidentally nominated others to the No Fly list in the hope it was a one-time mistake. But Agent Kelley’s hope was not grounded in reality. If Agent Kelley nominated Dr. Ibrahim because he misread the form, this may well not have been a one-time event—he likely would have made the same mistake other times he used the same form.

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lack of standing in the face of our court of appeal’s decision,” but it did not account for this unreasonableness in its bad faith determination. See Ibrahim II, 669 F.3d at 997. This was contrary to our longstanding precedent that when an attorney knowingly or recklessly raises frivolous arguments, a finding of bad faith is warranted. Fink, 239 F.3d at 993–94; see also Optyl Eyewear Fashion Int’l Corp. v. Style Cos., 760 F.2d 1045, 1052 (9th Cir. 1985). As the district court acknowledged, “the government should have sought review by the United States Supreme Court,” rather than to repeatedly assert an argument for dismissal it knew to be baseless.
Although the district court concluded that “the government was wrong to assure all that it would not rely on state-secrets evidence and then reverse course and seek dismissal at summary judgment,” it incorrectly found that the error was not knowingly or recklessly made. The government falsely represented to both the district court and to Dr. Ibrahim’s counsel—orally in court and in written filings—that it would not rely on evidence withheld on the basis of a privilege to “prevail in this action.”35 And yet, after these representations, the government raised the very

35 The government explicitly stated in a response to a court order asking the government to confirm its position on this very question:
Defendants affirm that they will not rely on any information they have withheld on grounds of privilege from Plaintiff in response to a discovery request in this case. Defendants are mindful of the Court’s December 20, 2012 ruling (Dkt. [No.] 399) that the Government may not affirmatively seek to prevail in this action based upon information that has been withheld on grounds of privilege, and have acted in a manner consistent with that ruling in both the assertion of privilege and summary judgment briefing.

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argument it had promised to forego. This is precisely the type of “abusive litigation” disavowed in the EAJA, which is focused on “protecting the integrity of the judicial process.” Copeland, 603 F.2d at 984 (concluding that the government was entitled to bad faith fees where the plaintiff brought a frivolous suit under Title VII of the Civil Rights Act of 1964 because the purpose of a fee award under the bad faith exception includes “protecting the integrity of the judicial process”).
The district court also clearly erred in concluding the government’s privilege assertions were made in good faith by considering only the merits of the privilege arguments themselves (“some were upheld, some were overruled”). The district court disregarded the government’s stubborn refusal to produce discovery even after the district court ordered it produced. But “willful disobedience of a court order” supports a bad faith finding. Octane Fitness, LLC, 134 S. Ct. at 1758 (citation omitted); see also Hutto v. Finney, 437 U.S. 678, 689 n.14 (1978) (noting that a court can “award attorney’s fees against a party who shows bad faith by delaying or disrupting the litigation or by hampering enforcement of a court order”). Here, the government refused to produce evidence designated “sensitive security information” (SSI), even after Dr. Ibrahim’s attorneys obtained the requisite security clearance and the court ordered the government to produce discovery. Contrary to its April 2014 bad faith finding, the district court itself, in a December 20, 2012 order, admonished the government for its “persistent and stubborn refusal to follow the statute” that

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required the government to produce this information in these circumstances.36
The district court’s 2012 reprimand had little effect on the government’s conduct. After this order, the government continued to drag its feet and refused to produce any privileged information—which Dr. Ibrahim’s attorneys were cleared to review—because it wanted to renegotiate an already-in-place protective order. The district court, noting its dissatisfaction with the government’s handling of this litigation in 2013, emphasized that the government had “once again miss[ed] a deadline to produce materials in this long-pending action.”
The government also refused to comply with the district court’s order to produce Dr. Ibrahim’s current watchlist status until it was compelled to do so. Dr. Ibrahim should not have been required to pursue a motion to compel to require the government to produce this information, especially when the government’s justifications for refusing to produce it were baseless. The government first argued that Dr. Ibrahim did not have standing to assert a right to learn the status of her No Fly list placement—a meritless reassertion of a settled issue. The government alternatively argued that her historical watchlist status was irrelevant to this case—a plainly frivolous contention given that Dr.

36 Dr. Ibrahim also argues that the government acted in bad faith by giving the district court secret evidence and secret case law. While the district court ultimately held that the government was not justified in these ex parte communications, it is not clear that such communications were so clearly precluded by precedent that the ex parte communications were outside the bounds of acceptable conduct.

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Ibrahim’s watchlist status is at the heart of this dispute. These actions, too, support a bad faith finding.
On remand, when analyzing the government’s litigation conduct through a totality of the circumstances lens, the district court must also consider other relevant conduct, including the government’s abuse of the discovery process;37 interference with the public’s right of access to trial by making at least ten motions to close the courtroom, see Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003); accord Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606–07 (1982);38 and misuse of a summary judgment hearing to discuss tangential issues unrelated to the merits of the summary judgment motion.
Finally, the district court erred in failing to consider whether the government’s position as a whole was in good faith. Though the government may have had a legitimate basis to defend this litigation initially, whether the government’s defense of this litigation was ever in good faith is a different question from whether it was always in good faith. Once the government discovers that its litigation position is baseless, it may not continue to defend it. Mendenhall, 92 F.3d at 877. On remand, the district court

37 For example, the government also made depositions exceedingly difficult by lodging over 200 objections and instructions not to answer to questions.
38 “[H]istorically both civil and criminal trials have been presumptively open.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980) (plurality opinion); see also id. at 596 (Brennan, J., concurring in judgment) (emphasizing value of open civil proceedings); id. at 599 (Stewart, J., concurring in judgment) (remarking that the First Amendment provides a right of access to civil and criminal trials).

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must consider whether the government had a good faith basis to defend its No Fly list error as the litigation evolved.
In sum, the district court’s ruling that the government did not act in bad faith was in error because it was incomplete. The district court focused primarily upon Agent Kelley’s “unknowing” placement of Dr. Ibrahim’s name on the No Fly list, which it deemed “the original sin,” rather than considering the “totality” of the government’s conduct, “including conduct ‘prelitigation and during trial.’” Rodriguez, 542 F.3d at 712 (emphasis removed) (citations omitted); see also Rawlings, 725 F.2d at 1196 (opining that when evaluating bad faith we must consider the “totality of the circumstances”). And this conduct should have included both an analysis of the government agencies’ and its legal representatives’ conduct. Dr. Ibrahim should not have had to endure over a decade of contentious litigation, two trips to the court of appeals, extensive discovery, over 800 docket entries amounting to many thousands of pages of record, and a weeklong trial the government precluded her (and her U.S.-citizen daughter) from attending, only to come full circle to the government’s concession that she never belonged on the No Fly list at all—that she is not and never was a terrorist or threat to airline passenger or civil aviation security. It should not have taken a court order to require the government to “cleans[e] and/or correct[] . . . the mistaken 2004 derogatory designation” of Dr. Ibrahim, which had spread like an insidious virus through numerous government watchlists.
V.
The district court’s piecemeal award of attorneys’ fees in this case runs afoul of the Supreme Court’s admonition that “[a] request for attorney’s fees should not result in a second major litigation.” Hensley, 461 U.S. at 437. In this request

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for attorneys’ fees alone, three courts, both a three-judge panel of our court and an en banc panel, fifteen judges, and one special master have had to consider the merits of this claim while the attorneys’ fees and costs continue to mount. The district court and original panel’s substantive determination of issues are precisely the type of “second major litigation” that the Hensley Court directed us to avoid.
That is not to say that all of the special master’s findings and recommended fee reductions accepted by the district court were incorrect. As the Supreme Court noted in Hensley, consideration of the twelve factors laid out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974), abrogated on different grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989),39 was entirely appropriate. 461 U.S. at 429–30. For example, the special master did not err in considering whether there was duplicative or block billing. However, when revisiting this case, the fee reductions should not be so pervasive that they completely eliminate the reasonable fees to which Dr. Ibrahim’s attorneys are entitled.
When the district court recalculates these fees, the calculation should acknowledge that Dr. Ibrahim and her lawyers, facing overwhelming odds, won a groundbreaking

39 The Johnson factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment; (5) the customary fee in the community for similar work; (6) the fixed or contingent nature of the fee; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717–19.

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victory, and that they are entitled to the fees they’ve earned and the vast majority of fees they requested. Cf. Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008) (“The district court’s inquiry must be limited to determining whether the fees requested by this particular legal team are justified for the particular work performed and the results achieved in this particular case.”).
We therefore REVERSE, VACATE the award of attorneys’ fees, and REMAND to allow the district court to make a bad faith determination under the correct legal standard in the first instance, and to re-determine the fee award in accordance with this opinion.40

40 We do not reach each of the objections to the special master’s recommendations, as the fee award is vacated, and many of the objections may be mooted as a result of our opinion, which will require a substantial redetermination of the fee award, as well as commensurate costs.

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APPENDIX A Glossary of Acronyms

APA

Administrative Procedure Act

CLASS Consular Lookout and Support System

DHS

Department of Homeland Security

EAJA

Equal Access to Justice Act

FAA

Federal Aviation Administration

FBI

Federal Bureau of Investigation

HSPD-6 Homeland Security Presidential Directive 6

IBIS

Interagency Border Inspection System

INA

Immigration and Nationality Act

KSTF

Known and Suspected Terrorist File

NCIC

National Crime Information Center

NCTC National Counterterrorism Center

NTC

National Targeting Center

PIVF

Passenger Identity Verification Form

SFO

San Francisco International Airport

SSI TACTICS TIDE

Sensitive Security Information Tipoff Australia Counterterrorism Information Control System Terrorist Identities Datamart Environment

TRIP

Travel Redress Inquiry Program

TSA

Transportation Security Administration

TSC

Terrorist Screening Center

TSDB Terrorist Screening Database

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TUSCAN VGTO VGTOF

Tipoff United States-Canada Violent Gang and Terrorist Organization Violent Gang and Terrorist Organization File

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CALLAHAN, Circuit Judge, joined by N.R. SMITH and NGUYEN, Circuit Judges, concurring in part and dissenting in part:
I agree with the majority that Dr. Ibrahim is the prevailing party in this case and that the test for substantial justification is an inclusive one: whether the government’s position as a whole has a reasonable basis in fact and law. I further agree that Dr. Ibrahim’s equal protection and First Amendment claims are sufficiently related to her other claims such that the district court’s failure to reach those issues does not justify the district court’s curtailment of attorneys’ fees. But the majority exceeds our role as an appellate court by determining in the first instance that the government’s position was not substantially justified. Supreme Court precedent requires that we allow the district court to make that determination on remand. See Pierce v. Underwood, 487 U.S. 552, 560 (1988). I also dissent from the majority’s setting aside of the district court’s finding that the defendants did not proceed in bad faith. Applying the applicable standard of review, see Rodriguez v. United States, 542 F.3d 704, 709 (9th Cir. 2008), Dr. Ibrahim has not shown that the district court committed clear error. Accordingly, I would affirm the district court’s limitation of Dr. Ibrahim’s attorneys’ fees to the statutory rate of $125 per hour set by Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412.
I
Although I agree that substantial justification requires a single-finding, the majority errs in proceeding to make this factual determination. In Pierce, the Supreme Court held that the language in 28 U.S.C. § 2412(d)(1)(A)—that attorneys’ fees shall be awarded “unless the court finds that the position of the United States was substantially

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justified”—contemplates that “the determination is for the district court to make and suggests some deference to the district court.” 487 U.S. at 559. The Court explained why the district court is in a better position than an appellate court to make this determination:
To begin with, some of the elements that bear upon whether the Government’s position “was substantially justified” may be known only to the district court. Not infrequently, the question will turn upon not merely what was the law, but what was the evidence regarding the facts. By reason of settlement conferences and other pretrial activities, the district court may have insights not conveyed by the record, into such matters as whether particular evidence was worthy of being relied upon, or whether critical facts could easily have been verified by the Government. Moreover, even where the district judge’s full knowledge of the factual setting can be acquired by the appellate court, that acquisition will often come at unusual expense, requiring the court to undertake the unaccustomed task of reviewing the entire record, not just to determine whether there existed the usual minimum support for the merits determination made by the factfinder below, but to determine whether urging of the opposite merits determination was substantially justified.

Id. at 560 (emphasis in original). The EAJA is materially indistinguishable from the statute at issue in Pierce, and our case presents just the type of situation alluded to by the

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Supreme Court. The district court has managed this litigation for twelve years. It is uniquely positioned to determine based on the totality of the circumstances whether the government’s position was substantially justified.
Despite its ultimate factual conclusion that “neither the agencies’ conduct nor the government’s litigation position was substantially justified” (Maj. Opn. at 46), the majority’s own description of the litigation shows why the district court should decide the issue in the first instance. The majority “ascribe[s] no nefarious motivations to the government” (Maj. Opn. at 43 n.19) and declines to find that “the government’s defense of this litigation was unreasonable at all points of the litigation.” Maj. Opn. at 45 n.20. Later in its opinion, the majority notes that “[t]hough the government may have had a legitimate basis to defend this litigation initially, whether the government’s defense of this litigation was ever in good faith is a different question from whether it was always in good faith.” Maj. Opn. at 72. The majority’s recognition of the complexities of this litigation illustrates precisely why the issue should be decided in the first instance by the district court.
As the Supreme Court directed in Pierce, our iteration of the single-finding requirement compels a remand to the district court to make that finding in the first place. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995) (“Because our decision today alters the playing field in some important respects, we think it best to remand the case to the lower courts for further consideration in light of the principles we have announced.”). The government would then have the opportunity to explain its reasons for its positions and offer evidence in support of its positions, and, of course, Dr. Ibrahim would be entitled to respond to the government’s arguments and evidence. See Fisher v. Univ.

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of Texas at Austin, 570 U.S. 297, 314 (2013) (noting that “fairness to the litigants and the courts that heard the case requires that it be remanded so that the admissions process can be considered and judged under a correct analysis”). The district court would then make its independent determination, which we could then review should either side take exception. We are not a fact-finding court, and our feelings concerning the reasonableness of the government’s overall litigation strategy do not justify our expropriation of the district court’s responsibility to make such a determination in the first instance.1
II
Although the majority correctly notes that a finding of bad faith permits a market-rate recovery of attorneys’ fees, in reversing the district court’s finding of no bad faith, the majority fails to apply, let alone acknowledge, the proper standard of review. “We review a district court’s finding regarding a party’s bad faith for clear error.” Rodriguez, 542 F.3d at 709. “A finding is clearly erroneous if it is (1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record.” Crittenden v. Chappell, 804 F.3d 998, 1012 (9th Cir. 2015) (internal quotation marks omitted) (quoting United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)). The Supreme Court has cautioned that pursuant to Federal Rule of Civil Procedure 52, “[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be

1 See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985) (“The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court.”); see also S.E.C. v. Rogers, 790 F.2d 1450, 1458 (9th Cir. 1986) (noting that “as a court of limited review” the Ninth Circuit “must abide by the clearly erroneous rule when reviewing a district court’s findings.”).

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given to the opportunity of the trial court to judge the credibility of the witnesses.” Anderson, 470 U.S. at 573. The Supreme Court has counseled:
If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.

Id. at 573–74.
The majority turns the standard of review on its head by analyzing and emphasizing the pieces of evidence that it concludes “support a bad faith finding.” Maj. Opn. at 71– 72; see generally Maj. Opn. at 65–75. But to reverse for clear error, we should consider whether the district court’s finding was plausible and not simply identify evidence that arguably supports a conclusion contrary to the district court’s determination.
None of the arguments proffered by Dr. Ibrahim support a finding of clear error. She first argues that there is bad faith because she was wrongly placed on the watchlist, the government refused to acknowledge this fact, and the government continued to oppose her even after it knew its conduct was wrong. But this argument fails to acknowledge the evolution of the law—which has been prompted, at least in part, by this litigation. We now know that Dr. Ibrahim was placed on the watchlist by the mistake of a single federal employee. Moreover, at the time Dr. Ibrahim was placed on the government’s watchlist, there was no uniform standard.

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Also, as the three-judge panel observed, “[p]rior to this suit no court had held a foreign national such as Ibrahim possessed any right to challenge their placement—mistaken or not—on the government’s terrorism watchlists.” Ibrahim v. U.S. Dep’t. of Homeland Sec., 835 F.3d 1048, 1058 (9th Cir. 2016) (Ibrahim III), reh’g en banc granted, 878 F.3d 703 (9th Cir. 2017). Thus, it was not necessarily bad faith for the government to assert that Dr. Ibrahim did not possess such a right. Id. Furthermore, it appears that the government removed Dr. Ibrahim from the No-Fly List more than a year prior to Dr. Ibrahim filing this action in 2016. Id.
Second, Dr. Ibrahim asserts that the government’s raising of its standing defense after Ibrahim v. Dep’t. of Homeland Security, 669 F.3d 983 (9th Cir. 2012) (Ibrahim II), demonstrates bad faith. However, the three-judge panel noted:
Ibrahim fails to point to any evidence indicating the government reraised standing as a defense at summary judgment and trial with vexatious purpose. What’s more, the government correctly points out that there was at minimum a colorable argument that the different procedural phases of the case rendered their subsequent standing motions nonfrivolous.

Ibrahim III, 835 F.3d at 1059. Although we held that Dr. Ibrahim had standing in Ibrahim II, 669 F.3d at 992–94, this did not preclude the government from seeking to preserve the issue2 or from challenging her underlying constitutional

2 The majority asserts that the government should have sought review of Ibrahim II by the Supreme Court, but as Ibrahim II reversed

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claims. See Ibrahim II, 669 F.3d at 997 (noting that we expressed “no opinion on the validity of the underlying constitutional claims”).
Third, Dr. Ibrahim’s claim that the government’s privilege assertions were made in bad faith is not compelling as the government was successful on many of its privilege assertions. See Ibrahim III, 835 F.3d at 1059.
Fourth, the three-judge panel noted:
Nor is there any evidence in the record demonstrating the government prevented Ibrahim from entering the United States to offer testimony in this suit, and with respect to her daughter, Ibrahim fails to explain why there was any error in the district court’s determination that the government’s initial refusal to allow her into the country was anything but a mistake, and a quickly corrected one at that.

Id. at 1060. The majority, however, asserts that it was unreasonable for the district court to conclude that “there was no evidence that the government” obstructed Dr. Ibrahim’s daughter from appearing at trial. Maj. Opn. at 66. But the question is not whether there is evidence that the government interfered with the daughter’s travel to the United States, but whether it did so in bad faith. The majority notes that as a citizen the daughter “was not subject

and remanded for further proceedings, the government could have decided not to press the issue at that time.

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to the INA,” (Maj. Opn. at 67), but the No-Fly List and other travel restrictions are applicable to citizens as well as others.
Finally, I agree with the three-judge panel that:
Ibrahim’s argument that the district court erred by making piecemeal bad faith determinations is unpersuasive. Her sole authority on point is our decision in McQuiston v. Marsh, 707 F.2d 1082, 1086 (9th Cir. 1983), superseded by statute as recognized by Melkonyan v. Sullivan, 501 U.S. 89, 96, 111 S. Ct. 2157, 115 L. Ed. 2d 78 (1991), where we made the unremarkable observation that “[b]ad faith may be found either in the action that led to the lawsuit or in the conduct of the litigation.” She fails, however, to point to any case where we have elevated that observation to edict. Rather, we have consistently required fee awards based on bad faith to be “traceable” to the conduct in question. See, e.g., Rodriguez, 542 F.3d at 713. It was therefore proper for the district court to consider each claimed instance of bad faith in order to determine whether the associated fees should be subject to a marketrate increase.

Ibrahim III, 835 F.3d at 1060.
Of course, we as an en banc panel are free to disagree with the conclusions drawn by the three-judge panel, but where, as here, the standard of review is clear error, the fact that several appellate judges agreed with the district court is some evidence that the district court’s decision was not clear error.

CCaassee:31:046-1-c6v1-6010,50415/-0W2H/2A019D, oIDcu: m11e1n3t8802346, FDikletEdn0t1ry/0: 21/0119-1,PPaaggee8866oof f8866

86

IBRAHIM V. DHS

Although the majority remanded the issue of bad faith to the district court for its independent re-assessment of the issue, as an appellate court we should allow the district court’s determination of no bad faith to stand unless appellant shows clear error. Anderson, 470 U.S. at 572; Rodriguez, 542 F.3d at 709. Because Dr. Ibrahim has not shown clear error, the district court’s finding of no bad faith should be affirmed.
III
The majority, having determined that the test for substantial justification under the EAJA is an inclusive one—whether the government’s position as a whole has a reasonable basis in fact and law—gets carried away and arrogates to itself the determination in the first instance that the government’s position was not reasonable. However, the Supreme Court has clearly directed that such a determination should be made by the district court, Pierce, 487 U.S. at 560, where the parties will have an opportunity to present argument and evidence applying our substantial justification test to the particularities of this litigation. See Fisher, 570 U.S. at 314. And while the majority, by remanding the bad faith issue to the district court, resisted the temptation to decide itself whether the government has proceeded in bad faith, it should have recognized that there was no need for a remand because Dr. Ibrahim failed to show clear error in the district court’s holding that the government did not proceed in bad faith. See Rodriguez, 542 F.3d at 709. Accordingly, I agree with the majority’s test for substantial justification, but I dissent from its factual determination in the first instance that the government’s litigation position was not justified and from its disturbance of the district court’s finding that the government did not proceed in bad faith.

 
 U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:06-cv-00545-WHA

Ibrahim v. Department of Homeland et al

Date Filed: 01/27/2006

Assigned to: Hon. William Alsup

Date Terminated: 01/14/2014

Referred to: Magistrate Judge Jacqueline Scott Corley Jury Demand: Plaintiff

(Settlement)

Nature of Suit: 440 Civil Rights:

Case in other court: , . Ninth Circuit, 09-17160

Other Jurisdiction: U.S. Government Defendant

Ninth Circuit, 10-15352

U.S. Court of Appeals for the Ninth

Circuit, 10-15873

Supreme Court of the United States,

18-01509

Cause: 42:1983 Civil Rights Act

Special Master Gina Moon

represented by Gina Moon Clarence Dyer & Cohen LLP 899 Ellis Street San Francisco, CA 94109 415-749-1800 Email: gmoon@uber.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Rahinah Ibrahim an individual

represented by James McManis McManis Faulkner 50 W. San Fernando Street 10th Floor San Jose, CA 95113 408-279-8700 Fax: 408-279-3244 Email: jmcmanis@mcmanislaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marwa Elzankaly McManis, Faulkner 50 W. San Fernando Street 10th Floor

San Jose, CA 95113 408-279-8700 Fax: 408-279-3244 Email: melzankaly@mcmanislaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christine Peek McManis Faulkner 50 West San Fernando Street, 10th Floor San Jose, CA 95113 408-279-8700 Fax: 408-279-3244 Email: cpeek@mcmanislaw.com ATTORNEY TO BE NOTICED
Elizabeth Marie Pipkin McManis Faulkner 50 West San Fernando Street, 10th Floor San Jose, CA 95113 4082798700 Fax: 4082793244 Email: epipkin@mcmanislaw.com ATTORNEY TO BE NOTICED
Kevin Hammon McManis Faulkner 50 West San Fernando Street, Suite 1000 San Jose, CA 95113 408-279-8700 Email: khammon@mcmanisfaulkner.com TERMINATED: 09/25/2009 ATTORNEY TO BE NOTICED
Ruby H. Kazi Hopkins & Carley A Law Corporation The Letitia Building 70 S First Street P.O. Box 1469 San Jose, CA 95109-1469

V.
Defendant
United States Department of Homeland Security

(408) 286-9800 Fax: (408) 998-4790 Email: rkazi@hopkinscarley.com ATTORNEY TO BE NOTICED
represented by Nicholas Patrick Cartier Department of Justice 20 Massachusetts Ave, NW Suite 7224 Washington, DC 20001 202-616-8351 Fax: 888-368-9662 Email: nicholas.cartier@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diane Kelleher United States Department of Justice Civil Division Federal Programs Branch P.O. Box 883 Washington, DC 20044 202-514-4775 Fax: 2-2-616-8202 Email: Diane.Kelleher@usdoj.gov ATTORNEY TO BE NOTICED
John Kenneth Theis U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW, Room 6107 Washington, DC 20001 (202) 305-7632 Fax: (202) 616-8460 Email: john.k.theis@usdoj.gov ATTORNEY TO BE NOTICED
John Russell Tyler United States Department of Justice 901 E Street, N.W. Room 1074

Washington, DC 20004 202-514-2356 Email: john.tyler@usdoj.gov
Karen S. Bloom U.S. Department of Justice Federal Programs Branch, Civil Division 1100 L Street, NW, Room 11518 Washington, DC 20005 202-514-4964 Fax: 202-616-8470 Email: karen.s.bloom@usdoj.gov TERMINATED: 10/25/2019 ATTORNEY TO BE NOTICED
Lily Sara Farel Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20001 202-353-7633 Fax: 202-616-8460 Email: lily.farel@usdoj.gov TERMINATED: 04/30/2014
Paul Gerald Freeborne U.S. Department of Justice Civil Division 20 Massachusetts Ave. N.W., Room 6108 Washington, DC 20001 202-353-0543 Fax: 202-616-8460 Email: paul.freeborne@usdoj.gov ATTORNEY TO BE NOTICED
Samuel P. Go U.S. Department of Justice Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 202-353-9923 Fax: 202-6+16-8962

Defendant Michael Chertoff in his official capacity as the former Secretary of the Department of Homeland Security
Defendant Tom Ridge in his official capacity as the former Secretary of the Department of Homeland Security

Email: samuel.go@usdoj.gov ATTORNEY TO BE NOTICED
represented by Diane Kelleher (See above for address) ATTORNEY TO BE NOTICED
John Kenneth Theis (See above for address) ATTORNEY TO BE NOTICED
John Russell Tyler (See above for address)
Karen S. Bloom (See above for address) TERMINATED: 10/25/2019 ATTORNEY TO BE NOTICED
Lily Sara Farel (See above for address) TERMINATED: 04/30/2014
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED
represented by Diane Kelleher (See above for address) ATTORNEY TO BE NOTICED
John Kenneth Theis (See above for address) ATTORNEY TO BE NOTICED
John Russell Tyler (See above for address)
Karen S. Bloom (See above for address)

Defendant Transportation Security Administration TERMINATED: 04/02/2009
Defendant Kip Hawley in his official capacity as Administrator of the Transportation Security Administration TERMINATED: 04/02/2009
Defendant David M. Stone in his official capacity as Acting Administrator of the Transportation Security Administration TERMINATED: 04/02/2009
Defendant Terrorist Screening Center

TERMINATED: 10/25/2019 ATTORNEY TO BE NOTICED
Lily Sara Farel (See above for address) TERMINATED: 04/30/2014
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED
represented by John Russell Tyler (See above for address)
Lily Sara Farel (See above for address) TERMINATED: 04/30/2014
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
represented by John Russell Tyler (See above for address)
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
represented by John Russell Tyler (See above for address)
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
represented by Diane Kelleher (See above for address)

Defendant
Donna A. Bucella in her official capacity as former Director of the Terrorist Screening Center

ATTORNEY TO BE NOTICED
John Kenneth Theis (See above for address) ATTORNEY TO BE NOTICED
John Russell Tyler (See above for address)
Karen S. Bloom (See above for address) TERMINATED: 10/25/2019 ATTORNEY TO BE NOTICED
Lily Sara Farel (See above for address) TERMINATED: 04/30/2014
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED
represented by Diane Kelleher (See above for address) ATTORNEY TO BE NOTICED
John Kenneth Theis (See above for address) ATTORNEY TO BE NOTICED
John Russell Tyler (See above for address)
Karen S. Bloom (See above for address) TERMINATED: 10/25/2019 ATTORNEY TO BE NOTICED
Lily Sara Farel (See above for address) TERMINATED: 04/30/2014

Defendant Norm MIneta in his official capacity as Secretary of Transportation TERMINATED: 04/02/2009
Defendant Federal Aviation Administration TERMINATED: 04/02/2009
Defendant Marion C. Blakey in her official capacity as Administrator of the Federal Aviation Administration TERMINATED: 04/02/2009
Defendant Federal Bureau of Investigation

Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED
represented by John Russell Tyler (See above for address)
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
represented by John Russell Tyler (See above for address)
Lily Sara Farel (See above for address) TERMINATED: 04/30/2014
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
represented by John Russell Tyler (See above for address)
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
represented by Diane Kelleher (See above for address) ATTORNEY TO BE NOTICED
John Kenneth Theis (See above for address) ATTORNEY TO BE NOTICED

Defendant
Robert Mueller in his official capacity as Director of the Federal Bureau of Investigation

John Russell Tyler (See above for address)
Karen S. Bloom (See above for address) TERMINATED: 10/25/2019 ATTORNEY TO BE NOTICED
Lily Sara Farel (See above for address) TERMINATED: 04/30/2014
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED
represented by Diane Kelleher (See above for address) ATTORNEY TO BE NOTICED
John Kenneth Theis (See above for address) ATTORNEY TO BE NOTICED
John Russell Tyler (See above for address)
Karen S. Bloom (See above for address) TERMINATED: 10/25/2019 ATTORNEY TO BE NOTICED
Lily Sara Farel (See above for address) TERMINATED: 04/30/2014
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
Samuel P. Go

Defendant San Francisco Airport
Defendant City and County of San Francisco
Defendant County of San Francisco TERMINATED: 04/02/2009
Defendant County of San Mateo TERMINATED: 04/26/2006

(See above for address) ATTORNEY TO BE NOTICED
represented by Peter J. Keith City Attorneys Office Fox Plaza 1390 Market Street, 6th Floor San Francisco, CA 94102-5408 415-554-3908 Fax: 415-554-3837 Email: peter.keith@sfgov.org TERMINATED: 09/27/2013
Ronald P. Flynn San Francisco City Attorney's Office Chief Deputy City Attorney City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102-5408 (415) 554-4708 Fax: (415) 255-0733 Email: ronald.flynn@sfcityatty.org TERMINATED: 09/27/2013
represented by Peter J. Keith (See above for address) TERMINATED: 09/27/2013
Ronald P. Flynn (See above for address) TERMINATED: 09/27/2013
represented by Peter J. Keith (See above for address) TERMINATED: 09/27/2013
Ronald P. Flynn (See above for address) TERMINATED: 09/27/2013
represented by Miruni Soosaipillai San Mateo County Counsels Office

Defendant San Francisco Police Department
Defendant UAL Corporation TERMINATED: 04/02/2009
Defendant United Airlines TERMINATED: 04/02/2009
Defendant David Nevins an individual TERMINATED: 04/02/2009
Defendant

400 County Center, 6th Floor Redwood City, CA 94063 (650) 363-1960 Fax: 650-363-4034 Email: msoosaipillai@co.sanmateo.ca.us TERMINATED: 04/26/2006 LEAD ATTORNEY
represented by Peter J. Keith (See above for address) TERMINATED: 09/27/2013
Ronald P. Flynn (See above for address) TERMINATED: 09/27/2013
represented by Richard G. Grotch Coddington, Hicks & Danforth, APC 555 Twin Dolphin Drive, Suite 300 Redwood CIty, CA 94065-2133 (650) 592-5400 Fax: (650) 592-5027 Email: rgrotch@chdlawyers.com TERMINATED: 04/02/2009 LEAD ATTORNEY
represented by Richard G. Grotch (See above for address) TERMINATED: 04/02/2009 LEAD ATTORNEY
represented by Richard G. Grotch (See above for address) TERMINATED: 04/02/2009 LEAD ATTORNEY
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED

Richard Pate an individual
Defendant John Bondanella an individual
Defendant John Cunningham an individual
Defendant Elizabeth Maron an individual
Defendant

represented by Peter J. Keith (See above for address) TERMINATED: 09/27/2013
Ronald P. Flynn (See above for address) TERMINATED: 09/27/2013
represented by Sharon D. Mayo Arnold & Porter Kaye Scholer LLP Three Embarcadero Center, 10th Floor San Francisco, CA 94111-4024 (415) 471-3100 Fax: (415) 471-3400 Email: sharon.mayo@arnoldporter.com TERMINATED: 09/27/2013 LEAD ATTORNEY
represented by Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
Peter J. Keith (See above for address) TERMINATED: 09/27/2013
Ronald P. Flynn (See above for address) TERMINATED: 09/27/2013
represented by Peter J. Keith (See above for address) TERMINATED: 09/27/2013
Ronald P. Flynn (See above for address) TERMINATED: 09/27/2013

Transportation Security Operations Center TERMINATED: 04/02/2009
Defendant Transportation Security Intelligence Services TERMINATED: 04/02/2009
Defendant US Investigations Services, Inc. a Virginia Corporation
Defendant Janet Napolitano in her official capacity as Secretary of the Department of Homeland Security

represented by Lily Sara Farel (See above for address) TERMINATED: 04/30/2014
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
represented by Lily Sara Farel (See above for address) TERMINATED: 04/30/2014
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
represented by Sharon D. Mayo (See above for address) TERMINATED: 09/27/2013 LEAD ATTORNEY
represented by Diane Kelleher (See above for address) ATTORNEY TO BE NOTICED
John Kenneth Theis (See above for address) ATTORNEY TO BE NOTICED
Karen S. Bloom (See above for address) TERMINATED: 10/25/2019 ATTORNEY TO BE NOTICED
Lily Sara Farel (See above for address) TERMINATED: 04/30/2014
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
Samuel P. Go

Defendant Eric H. Holder, Jr. in his official capacity as Attorney General
Defendant Leonard C. Boyle in his official capacity as Director of the Terrorist Screening Center

(See above for address) ATTORNEY TO BE NOTICED
represented by Diane Kelleher (See above for address) ATTORNEY TO BE NOTICED
John Kenneth Theis (See above for address) ATTORNEY TO BE NOTICED
Karen S. Bloom (See above for address) TERMINATED: 10/25/2019 ATTORNEY TO BE NOTICED
Lily Sara Farel (See above for address) TERMINATED: 04/30/2014
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED
represented by Diane Kelleher (See above for address) ATTORNEY TO BE NOTICED
John Kenneth Theis (See above for address) ATTORNEY TO BE NOTICED
Karen S. Bloom (See above for address) TERMINATED: 10/25/2019 ATTORNEY TO BE NOTICED
Lily Sara Farel (See above for address) TERMINATED: 04/30/2014

Defendant Arthur M. Cummings, II in his official capacity as Executive Assistant Director of the FBI's National Security Branch
Defendant National Counterterrorism Center

Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED
represented by Diane Kelleher (See above for address) ATTORNEY TO BE NOTICED
John Kenneth Theis (See above for address) ATTORNEY TO BE NOTICED
Karen S. Bloom (See above for address) TERMINATED: 10/25/2019 ATTORNEY TO BE NOTICED
Lily Sara Farel (See above for address) TERMINATED: 04/30/2014
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED
represented by Diane Kelleher (See above for address) ATTORNEY TO BE NOTICED
John Kenneth Theis (See above for address) ATTORNEY TO BE NOTICED
Karen S. Bloom (See above for address)

Defendant Michael E. Leiter in his official capacity as Director of the National Counterterrorism Center
Defendant Department of State

TERMINATED: 10/25/2019 ATTORNEY TO BE NOTICED
Lily Sara Farel (See above for address) TERMINATED: 04/30/2014
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED
represented by Diane Kelleher (See above for address) ATTORNEY TO BE NOTICED
John Kenneth Theis (See above for address) ATTORNEY TO BE NOTICED
Karen S. Bloom (See above for address) TERMINATED: 10/25/2019 ATTORNEY TO BE NOTICED
Lily Sara Farel (See above for address) TERMINATED: 04/30/2014
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED
represented by Diane Kelleher (See above for address) ATTORNEY TO BE NOTICED

Defendant
Hilary Clinton in her official capacity as Secretary of State

John Kenneth Theis (See above for address) ATTORNEY TO BE NOTICED
Karen S. Bloom (See above for address) TERMINATED: 10/25/2019 ATTORNEY TO BE NOTICED
Lily Sara Farel (See above for address) TERMINATED: 04/30/2014
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED
represented by Diane Kelleher (See above for address) ATTORNEY TO BE NOTICED
John Kenneth Theis (See above for address) ATTORNEY TO BE NOTICED
Karen S. Bloom (See above for address) TERMINATED: 10/25/2019 ATTORNEY TO BE NOTICED
Lily Sara Farel (See above for address) TERMINATED: 04/30/2014
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED

Defendant United States of America

represented by Indraneel Sur US Department of Justice Civil Division, Federal Programs Branch 1100 L St. Rm. 12010 Washington, DC 20530 (202) 616-8488 Email: indraneel.sur@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Conor Kells 1331 Pennsylvania Ave NW Washington, DC 20004 202-616-4273 Email: conor.kells@usdoj.gov ATTORNEY TO BE NOTICED
Karen S. Bloom (See above for address) TERMINATED: 10/25/2019 ATTORNEY TO BE NOTICED
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/27/2006
01/27/2006

# Docket Text
1 COMPLAINT against David M. Stone, Terrorist Screening Center, Donna A. Bucella, Norm MIneta, Federal Aviation Administration, Marion C. Blakey, Federal Bureau of Investigation, Robert Mueller, San Francisco Airport, City of San Francisco, County of San Francisco, County of San Mateo, San Francisco Police Department, UAL Corporation, United Airlines, David Nevins, Richard Pate, John Bondanella, John Cunningham, Elizabeth Maron, Department of Homeland, Michael Chertoff, Tom Ridge, Transportation Security Administration, Kip Hawley ( Filing fee $ 250, receipt number 3380882.). Filed byRahinah Ibrahim. (sis, COURT STAFF) (Filed on 1/27/2006) Additional attachment(s) added on 2/27/2006 (sis, COURT STAFF). (Entered: 01/30/2006)
Summons Issued as to David M. Stone, Terrorist Screening Center, Donna A. Bucella, Norm MIneta, Federal Aviation Administration,

01/27/2006 01/27/2006 01/27/2006 02/15/2006
02/24/2006 03/28/2006 03/28/2006

Marion C. Blakey, Federal Bureau of Investigation, Robert Mueller, San Francisco Airport, City of San Francisco, County of San Francisco, County of San Mateo, San Francisco Police Department, UAL Corporation, United Airlines, David Nevins, Richard Pate, John Bondanella, John Cunningham, Elizabeth Maron, Department of Homeland, Michael Chertoff, Tom Ridge, Transportation Security Administration, Kip Hawley. (sis, COURT STAFF) (Filed on 1/27/2006) (Entered: 01/30/2006)
2 ADR SCHEDULING ORDER: Case Management Statement due by 4/13/2006. Case Management Conference set for 4/27/2006 11:00 AM. (sis, COURT STAFF) (Filed on 1/27/2006) (Entered: 01/30/2006)
3 SUPPLEMENTAL ORDER TO ORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE re 2 ADR Scheduling Order (sis, COURT STAFF) (Filed on 1/27/2006) (Entered: 01/30/2006)
CASE DESIGNATED for Electronic Filing. (sis, COURT STAFF) (Filed on 1/27/2006) (Entered: 01/30/2006)
Summons Issued as to David M. Stone, Terrorist Screening Center, Donna A. Bucella, Norm MIneta, Federal Aviation Administration, Marion C. Blakey, Federal Bureau of Investigation, Robert Mueller, San Francisco Airport, City of San Francisco, County of San Francisco, County of San Mateo, San Francisco Police Department, UAL Corporation, United Airlines, David Nevins, Richard Pate, John Bondanella, John Cunningham, Elizabeth Maron, Department of Homeland, Michael Chertoff, Tom Ridge, Transportation Security Administration, Kip Hawley. (sis, COURT STAFF) (Filed on 2/15/2006) (Entered: 02/16/2006)
4 CLERK'S NOTICE re: (Doc. 1) Failure to E-File and/or Failure to Register as an E-Filer (sis, COURT STAFF) (Filed on 2/24/2006) (Entered: 02/24/2006)
5 Ex Parte Application re 2 ADR Scheduling Order to Continue Case Management and ADR Deadlines and Case Management Conference filed by Rahinah Ibrahim. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
6 Declaration of Marwa Elzankaly in Support of 5 Ex Parte Application re 2 ADR Scheduling Order to Continue Case Management and ADR Deadlines and Case Management Conference filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A to Elzankaly Declaration# 2 Exhibit B to Elzankaly Declaration# 3 Exhibit C to Elzankaly Declaration# 4 Exhibit D to Elzankaly Declaration)(Related document(s) 5 ) (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)

03/28/2006
03/28/2006 03/28/2006 03/28/2006 03/28/2006 03/28/2006 03/28/2006 03/28/2006 03/28/2006 03/28/2006 03/28/2006 03/28/2006

7 Proposed Order re 6 Declaration in Support,, 5 Ex Parte Application re 2 ADR Scheduling Order to Continue Case Management and ADR Deadlines and Case Management Conference by Rahinah Ibrahim. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
8 SUMMONS Returned Executed by Rahinah Ibrahim. Department of Homeland served on 3/13/2006, answer due 4/3/2006. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
9 SUMMONS Returned Executed by Rahinah Ibrahim. Michael Chertoff served on 3/13/2006, answer due 4/3/2006. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
10 SUMMONS Returned Executed by Rahinah Ibrahim. Tom Ridge served on 3/13/2006, answer due 4/3/2006. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
11 SUMMONS Returned Executed by Rahinah Ibrahim. Transportation Security Administration served on 3/13/2006, answer due 4/3/2006. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
12 SUMMONS Returned Executed by Rahinah Ibrahim. Kip Hawley served on 3/13/2006, answer due 4/3/2006. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
13 SUMMONS Returned Executed by Rahinah Ibrahim. David M. Stone served on 3/13/2006, answer due 4/3/2006. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
14 SUMMONS Returned Executed by Rahinah Ibrahim. Terrorist Screening Center served on 3/7/2006, answer due 5/8/2006. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
15 SUMMONS Returned Executed by Rahinah Ibrahim. Norm MIneta served on 3/7/2006, answer due 5/8/2006. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
16 SUMMONS Returned Executed by Rahinah Ibrahim. Federal Aviation Administration served on 3/7/2006, answer due 5/8/2006. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
17 SUMMONS Returned Executed by Rahinah Ibrahim. Marion C. Blakey served on 3/7/2006, answer due 5/8/2006. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
18 SUMMONS Returned Executed by Rahinah Ibrahim. Federal Bureau of Investigation served on 3/7/2006, answer due 5/8/2006. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)

03/28/2006 03/28/2006 03/28/2006 03/28/2006 03/28/2006 03/28/2006 03/28/2006 03/28/2006 03/28/2006 03/28/2006 03/28/2006 03/30/2006 03/30/2006

19 SUMMONS Returned Executed by Rahinah Ibrahim. Robert Mueller served on 3/7/2006, answer due 5/8/2006. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
20 SUMMONS Returned Executed by Rahinah Ibrahim. San Francisco Airport served on 3/17/2006, answer due 4/6/2006. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
21 SUMMONS Returned Executed by Rahinah Ibrahim. City of San Francisco served on 3/13/2006, answer due 4/3/2006. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
22 SUMMONS Returned Executed by Rahinah Ibrahim. County of San Francisco served on 3/16/2006, answer due 4/5/2006. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
23 SUMMONS Returned Executed by Rahinah Ibrahim. County of San Mateo served on 3/13/2006, answer due 4/3/2006. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
24 SUMMONS Returned Executed by Rahinah Ibrahim. San Francisco Police Department served on 3/13/2006, answer due 4/3/2006. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
25 SUMMONS Returned Executed by Rahinah Ibrahim. UAL Corporation served on 3/14/2006, answer due 4/3/2006. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
26 SUMMONS Returned Executed by Rahinah Ibrahim. United Airlines served on 3/14/2006, answer due 4/3/2006. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
27 SUMMONS Returned Executed by Rahinah Ibrahim. Richard Pate served on 3/13/2006, answer due 4/3/2006. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
28 SUMMONS Returned Executed by Rahinah Ibrahim. John Cunningham served on 3/16/2006, answer due 4/5/2006. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
29 SUMMONS Returned Executed by Rahinah Ibrahim. Elizabeth Maron served on 3/16/2006, answer due 4/5/2006. (Elzankaly, Marwa) (Filed on 3/28/2006) (Entered: 03/28/2006)
30 STIPULATION Extending Time to Respond to Plaintiff's Complaint by UAL Corporation, United Airlines. (Grotch, Richard) (Filed on 3/30/2006) (Entered: 03/30/2006)
31 ORDER CONTINUING CASE MANAGEMENT CONFERENCE AND INITIAL DISCLOSURES DEADLINE [re 30 Stipulation filed by UAL Corporation, United Airlines]. Signed by Judge William Alsup on

03/30/2006 03/31/2006 04/10/2006 04/14/2006 04/17/2006 04/17/2006 04/17/2006 04/17/2006
04/17/2006
04/17/2006
04/17/2006

3/29/2006. (whasec, COURT STAFF) (Filed on 3/30/2006) (Entered: 03/30/2006)
Set Deadlines/Hearings: Case Management Statement due by 5/4/2006. Rule 26 Meeting Report due by 5/4/2006. Case Management Conference set for 5/18/2006 11:00 AM. (sis, COURT STAFF) (Filed on 3/30/2006) (Entered: 03/31/2006)
32 NOTICE of Appearance by John Russel Tyler on behalf of the federal defendants (Tyler, John) (Filed on 3/31/2006) (Entered: 03/31/2006)
33 WAIVER OF SERVICE Returned Executed filed by Rahinah Ibrahim. Service waived by David Nevins waiver sent on 3/30/2006, answer due 5/30/2006. (Elzankaly, Marwa) (Filed on 4/10/2006) (Entered: 04/10/2006)
34 STIPULATION AND (PROPOSED) ORDER RE: EXTENSION OF TIME TO RESPOND TO COMPLAINT by County of San Mateo. (Soosaipillai, Miruni) (Filed on 4/14/2006) (Entered: 04/14/2006)
35 ORDER GRANTING EXTENSION FOR RESPONSE TO COMPLAINT. Signed by Judge Alsup on April 17, 2006. (whalc1, COURT STAFF) (Filed on 4/17/2006) (Entered: 04/17/2006)
36 DEMAND for Trial by Jury by UAL Corporation, United Airlines, David Nevins. (Grotch, Richard) (Filed on 4/17/2006) (Entered: 04/17/2006)
37 Certificate of Interested Entities - David Nevins, United Air Lines, Inc. and UAL Corporation (Grotch, Richard) (Filed on 4/17/2006) (Entered: 04/17/2006)
38 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim Upon Which Relief May be Granted (Notice of Motion) filed by UAL Corporation, United Airlines, David Nevins. Motion Hearing set for 5/25/2006 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Grotch, Richard) (Filed on 4/17/2006) (Entered: 04/17/2006)
39 MEMORANDUM in Support re 38 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim Upon Which Relief May be Granted (Notice of Motion) filed byUAL Corporation, United Airlines, David Nevins. (Related document(s) 38 ) (Grotch, Richard) (Filed on 4/17/2006) (Entered: 04/17/2006)
40 Request for Judicial Notice re 38 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim Upon Which Relief May be Granted (Notice of Motion) filed byUAL Corporation, United Airlines, David Nevins. (Related document(s) 38 ) (Grotch, Richard) (Filed on 4/17/2006) (Entered: 04/17/2006)
41 MOTION to Dismiss NOTICE OF MOTION TO DISMISS BY DEFENDANT COUNTY OF SAN MATEO; MEMORANDUM OF

04/17/2006
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POINTS AND AUTHORITIES IN SUPPORT THEREOF FRCP 12(B)(6); [PROPOSED] ORDER GRANTING COUNTY OF SAN MATEO'S MOTION TO DISMISS UNDER RULE 12(B)(6) filed by County of San Mateo. Motion Hearing set for 5/25/2006 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1)(Soosaipillai, Miruni) (Filed on 4/17/2006) (Entered: 04/17/2006)
42 ANSWER to Complaint with Jury Demand Defendants City and County of San Francisco's, James Cunningham's, Elizabeth Maron's and Richard Pate's Answer to Plaintiff's Complaint byCity of San Francisco, County of San Francisco, Richard Pate, John Cunningham, Elizabeth Maron. (Flynn, Ronald) (Filed on 4/17/2006) (Entered: 04/17/2006)
43 SUMMONS Returned Executed by Rahinah Ibrahim. Donna A. Bucella served on 3/7/2006, answer due 5/8/2006. (Elzankaly, Marwa) (Filed on 4/24/2006) (Entered: 04/24/2006)
44 SUMMONS Returned Executed by Rahinah Ibrahim. John Bondanella served on 3/29/2006, answer due 5/30/2006. (Elzankaly, Marwa) (Filed on 4/24/2006) (Entered: 04/24/2006)
45 NOTICE of Appearance by Sharon Douglass Mayo as Counsel for Defendant John Bondanella (Mayo, Sharon) (Filed on 4/25/2006) (Entered: 04/25/2006)
46 ADR Certification (ADR L.R. 3-5b) of discussion of ADR options by defendant United Air Lines, Inc. (Grotch, Richard) (Filed on 4/26/2006) (Entered: 04/26/2006)
47 ADR Certification (ADR L.R. 3-5b) of discussion of ADR options by defendant UAL Corporation. (Grotch, Richard) (Filed on 4/26/2006) (Entered: 04/26/2006)
48 ADR Certification (ADR L.R. 3-5b) of discussion of ADR options by defendant David Nevins. (Grotch, Richard) (Filed on 4/26/2006) (Entered: 04/26/2006)
49 NOTICE of Voluntary Dismissal Without Prejudice, as to defendant, County of San Mateo Only by Rahinah Ibrahim (Elzankaly, Marwa) (Filed on 4/26/2006) (Entered: 04/26/2006)
50 ADR Certification (ADR L.R. 3-5b) of discussion of ADR options by federal defendants (Tyler, John) (Filed on 4/27/2006) (Entered: 04/27/2006)
51 ADR Certification (ADR L.R. 3-5b) of discussion of ADR options by defendant John Bondanella (Mayo, Sharon) (Filed on 4/27/2006) (Entered: 04/27/2006)
52 ADR Certification (ADR L.R. 3-5b) of discussion of ADR options (Peek, Christine) (Filed on 4/27/2006) (Entered: 04/27/2006)

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53 ADR Certification (ADR L.R. 3-5b) of discussion of ADR options ADR Certification by Parties and Counsel (Flynn, Ronald) (Filed on 4/27/2006) (Entered: 04/27/2006)
54 NOTICE of need for ADR Phone Conference (ADR L.R. 3-5 d) (Attachments: # 1 Exhibit Attachment A to Notice of Need for ADR Phone Conference)(Elzankaly, Marwa) (Filed on 4/27/2006) (Entered: 04/27/2006)
55 ADR Certification (ADR L.R. 3-5b) of discussion of ADR options ADR Certification by Parties and Counsel (Flynn, Ronald) (Filed on 5/1/2006) (Entered: 05/01/2006)
56 STIPULATION for an extention of time for federal defendants to respond to the complaint by David M. Stone, Terrorist Screening Center, Donna A. Bucella, Norm MIneta, Federal Aviation Administration, Marion C. Blakey, Federal Bureau of Investigation, Robert Mueller, Department of Homeland, Michael Chertoff, Tom Ridge, Transportation Security Administration, Kip Hawley. (Tyler, John) (Filed on 5/2/2006) (Entered: 05/02/2006)
57 Renotice motion hearing re 38 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim Upon Which Relief May be Granted (Notice of Motion) filed byUAL Corporation, United Airlines, David Nevins. Motion Hearing set for 6/29/2006 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Grotch, Richard) (Filed on 5/3/2006) (Entered: 05/03/2006)
58 JOINT CASE MANAGEMENT STATEMENT OF ALL PARTIES filed by UAL Corporation, United Airlines, David Nevins. (Grotch, Richard) (Filed on 5/4/2006) (Entered: 05/04/2006)
59 ADR Clerks Notice Setting ADR Phone Conference on 5/15/06 at 10:30 a.m. Please take note that plaintiff's counsel initiates the call to all parties. (tjs, COURT STAFF) (Filed on 5/8/2006) (Entered: 05/08/2006)
ADR Remark: The ADR Phone Conference has been rescheduled to 5/12/06 at 1:00 p.m. (tjs, COURT STAFF) (Filed on 5/8/2006) (Entered: 05/08/2006)
ADR Remark: The ADR Phone Conference has been rescheduled to 2:30 p.m. PST on 5/12/06. (tjs, COURT STAFF) (Filed on 5/11/2006) (Entered: 05/11/2006)
ADR Remark: ADR Phone Conference conducted on 5/12/06 by DB. (tjs, COURT STAFF) (Filed on 5/12/2006) (Entered: 05/12/2006)
60 CASE MANAGEMENT SCHEDULING ORDER: ORDER REFERRING CASE to Magistrate Judge Elizabeth D. Laporte for Mediation/Settlement. Discovery due by 4/27/2007. Jury Trial set for

05/18/2006 05/22/2006 05/22/2006
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9/10/2007 07:30 AM in Courtroom 9, 19th Floor, San Francisco. Motions due by 6/14/2007. Pretrial Conference set for 8/20/2007 02:00 PM in Courtroom 9, 19th Floor, San Francisco. Signed by Judge William Alsup on 5/18/2006. (whasec, COURT STAFF) (Filed on 5/18/2006) (Entered: 05/18/2006)
61 Minute Entry: Initial Case Management Conference held on 5/18/2006 before William Alsup (Date Filed: 5/18/2006), CASE REFERRED to Magistrate Judge Laporte for Settlement Conference. Jury Trial set for 9/10/2007 07:30 AM in Courtroom 9, 19th Floor, San Francisco. (Court Reporter Leo Mankiewicz.) (dt, COURT STAFF) (Date Filed: 5/18/2006) (Entered: 05/18/2006)
62 MOTION to Seal Document filed by David M. Stone, Terrorist Screening Center, Donna A. Bucella, Norm MIneta, Federal Aviation Administration, Marion C. Blakey, Federal Bureau of Investigation, Robert Mueller, Department of Homeland, Michael Chertoff, Tom Ridge, Kip Hawley. (Attachments: # 1 declaration of John R. Tyler# 2 Proposed Order in support of federal defendants' motion to file under seal)(Tyler, John) (Filed on 5/22/2006) (Entered: 05/22/2006)
63 MOTION to Dismiss for Lack of Jurisdiction filed by David M. Stone, Terrorist Screening Center, Donna A. Bucella, Norm MIneta, Federal Aviation Administration, Marion C. Blakey, Federal Bureau of Investigation, Department of Homeland, Michael Chertoff, Tom Ridge, Transportation Security Administration, Kip Hawley. Motion Hearing set for 6/29/2006 08:00 AM. (Attachments: # 1 Memorandum of points and authorities in support of federal defendants' motion to dismiss# 2 Declaration of Joseph Salvator# 3 Federal defendants Exhibits 1 and 2)(Tyler, John) (Filed on 5/22/2006) (Entered: 05/22/2006)
64 MOTION to Dismiss pursuant to FRCP 12(b)(2) and 12(b)(6) filed by John Bondanella. Motion Hearing set for 6/29/2006 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Mayo, Sharon) (Filed on 5/22/2006) (Entered: 05/22/2006)
65 Declaration of John Bondanella in Support of 64 MOTION to Dismiss pursuant to FRCP 12(b)(2) and 12(b)(6) filed byJohn Bondanella. (Related document(s) 64 ) (Mayo, Sharon) (Filed on 5/22/2006) (Entered: 05/22/2006)
66 ORDER RE FEDERAL DEFENDANTS MOTION TO FILE UNDER SEAL SENSITIVE SECURITY INFORMATION by Judge Alsup temporarily granting 62 Motion to Seal Document (whalc1, COURT STAFF) (Filed on 5/23/2006) (Entered: 05/23/2006)
67 RESPONSE to Court's Order of May 23, 2006 by David M. Stone, Terrorist Screening Center, Donna A. Bucella, Norm MIneta, Federal Aviation Administration, Marion C. Blakey, Federal Bureau of

05/31/2006 05/31/2006
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Investigation, Robert Mueller, Department of Homeland, Michael Chertoff, Tom Ridge, Transportation Security Administration, Kip Hawley. (Tyler, John) (Filed on 5/26/2006) (Entered: 05/26/2006)
68 MOTION to Amend/Correct Complaint to Add New Parties filed by Rahinah Ibrahim. Motion Hearing set for 7/13/2006 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Elzankaly, Marwa) (Filed on 5/31/2006) (Entered: 05/31/2006)
69 Declaration of Marwa Elzankaly in Support of 68 MOTION to Amend/Correct Complaint to Add New Parties filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A to Elzankaly Declaration# 2 Exhibit B to Elzankaly Declaration# 3 Exhibit C to Elzankaly Declaration# 4 Exhibit D to Elzankaly Declaration# 5 Exhibit E to Elzankaly Declaration)(Related document(s) 68 ) (Elzankaly, Marwa) (Filed on 5/31/2006) (Entered: 05/31/2006)
70 Proposed Order re 68 MOTION to Amend/Correct Complaint to Add New Parties by Rahinah Ibrahim. (Elzankaly, Marwa) (Filed on 5/31/2006) (Entered: 05/31/2006)
71 EXHIBITS re 69 Declaration in Support, Corrected Exhibit B to Elzankaly Declaration filed byRahinah Ibrahim. (Related document(s) 69 ) (Elzankaly, Marwa) (Filed on 6/1/2006) (Entered: 06/01/2006)
72 STIPULATION re 38 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim Upon Which Relief May be Granted (Notice of Motion), 64 MOTION to Dismiss pursuant to FRCP 12(b)(2) and 12(b)(6), 63 MOTION to Dismiss for Lack of Jurisdiction and [Proposed] Order Allowing Plaintiff To File One 40-Page Opposition Memorandum To Defendants' Motions To Dismiss by Rahinah Ibrahim. (Elzankaly, Marwa) (Filed on 6/6/2006) (Entered: 06/06/2006)
73 ORDER RE 40 PAGE OPPOSITION. Signed by Judge Alsup on June 6, 2006. (whalc1, COURT STAFF) (Filed on 6/6/2006) (Entered: 06/06/2006)
74 Memorandum in Opposition re 62 MOTION to Seal Document filed byRahinah Ibrahim. (Elzankaly, Marwa) (Filed on 6/8/2006) (Entered: 06/08/2006)
75 Request for Judicial Notice In Support of Opposition to Motions to Dismiss filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A to RJN# 2 Exhibit B to RJN# 3 Exhibit C to RJN# 4 Exhibit D to RJN# 5 Exhibit E to RJN# 6 Exhibit F to RJN# 7 Exhibit G to RJN# 8 Exhibit H to RJN# 9 Exhibit I to RJN# 10 Exhibit J to RJN# 11 Exhibit K to RJN# 12 Exhibit L to RJN# 13 Exhibit M to RJN# 14 Exhibit N to RJN# 15 Exhibit O to RJN# 16 Errata P to

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RJN# 17 Exhibit Q to RJN)(Elzankaly, Marwa) (Filed on 6/8/2006) (Entered: 06/08/2006)
76 Memorandum in Opposition 64 To Motions To Dismiss Of United Defendants, John Bondanella and Federal Defendants filed byRahinah Ibrahim. (Elzankaly, Marwa) (Filed on 6/9/2006) Modified on 6/12/2006 (sis, COURT STAFF). (Entered: 06/09/2006)
77 STIPULATION to continue hearing date on all pending motions, and stipulation and proposed order on a briefing schedule for such motions by David M. Stone, Terrorist Screening Center, Donna A. Bucella, Norm MIneta, Federal Aviation Administration, Marion C. Blakey, Federal Bureau of Investigation, Department of Homeland, Michael Chertoff, Tom Ridge, Transportation Security Administration, Kip Hawley. (Tyler, John) (Filed on 6/12/2006) (Entered: 06/12/2006)
78 ORDER CONTINUING HEARING DATES ON PENDING MOTIONS. Signed by Judge Alsup on June 12, 2006. (whalc1, COURT STAFF) (Filed on 6/12/2006) (Entered: 06/12/2006)
79 Reply Memorandum in Support of their Motion to File Under Seal Sensitive Security Information filed byDavid M. Stone, Terrorist Screening Center, Donna A. Bucella, Norm MIneta, Federal Aviation Administration, Marion C. Blakey, Federal Bureau of Investigation, Robert Mueller, Department of Homeland, Michael Chertoff, Tom Ridge, Transportation Security Administration, Kip Hawley. (Tyler, John) (Filed on 6/19/2006) (Entered: 06/19/2006)
80 MEMORANDUM IN SUPPORT 63 Federal Defendants' Motion to Dismiss filed byDavid M. Stone, Terrorist Screening Center, Norm MIneta, Federal Aviation Administration, Marion C. Blakey, Federal Bureau of Investigation, Elizabeth Maron, Department of Homeland, Michael Chertoff, Tom Ridge, Transportation Security Administration, Kip Hawley. (Attachments: # 1)(Tyler, John) (Filed on 6/29/2006) Modified on 6/30/2006 (sis, COURT STAFF). (Entered: 06/29/2006)
81 Federal Defendants' statement of nonopposition to 68 plaintiff's motion to amend her pleading filed by David M. Stone, Terrorist Screening Center, Donna A. Bucella, Norm MIneta, Federal Aviation Administration, Marion C. Blakey, Federal Bureau of Investigation, Robert Mueller, Department of Homeland, Michael Chertoff, Tom Ridge, Transportation Security Administration, Kip Hawley. (Tyler, John) (Filed on 6/29/2006) Modified on 6/30/2006 (sis, COURT STAFF). (Entered: 06/29/2006)
82 Reply Memorandum re 38 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim Upon Which Relief May be Granted (Notice of Motion) filed byUAL Corporation, United Airlines,

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07/21/2006

David Nevins. (Grotch, Richard) (Filed on 6/29/2006) (Entered: 06/29/2006)
83 OBJECTIONS re 75 Request for Judicial Notice, filed by UAL Corporation, United Airlines, David Nevins. (Related document(s) 75 ) (Grotch, Richard) (Filed on 6/29/2006) Modified on 6/30/2006 (sis, COURT STAFF). (Entered: 06/29/2006)
84 Statement of Non-Opposition re 68 MOTION to Amend/Correct Complaint to Add New Parties filed byUAL Corporation, United Airlines, David Nevins. (Related document(s) 68 ) (Grotch, Richard) (Filed on 6/29/2006) (Entered: 06/29/2006)
85 NOTICE by City of San Francisco, County of San Francisco, Richard Pate, John Cunningham, Elizabeth Maron Notice of Non-Opposition to Plaintiff's Motion for Leave to File First Amended Complaint (Flynn, Ronald) (Filed on 6/29/2006) (Entered: 06/29/2006)
86 Reply Memorandum re 64 MOTION to Dismiss pursuant to FRCP 12(b)(2) and 12(b)(6) filed byJohn Bondanella. (Mayo, Sharon) (Filed on 6/29/2006) (Entered: 06/29/2006)
87 NOTICE by John Bondanella Non-Opposition to Plaintiffs Motion for Leave to Amend (Mayo, Sharon) (Filed on 6/29/2006) (Entered: 06/29/2006)
88 NOTICE by City of San Francisco, County of San Francisco, Richard Pate, John Cunningham, Elizabeth Maron Notice of Unavailability of Counsel (Flynn, Ronald) (Filed on 7/14/2006) (Entered: 07/14/2006)
89 Minute Entry: Motions Hearing held on 7/20/2006 before Judge William Alsup. The matters are submitted. (Court Reporter Katherine Powell.) (epb, COURT STAFF) (Date Filed: 7/20/2006) (Entered: 07/20/2006)
90 ORDER REGARDING DEFENDANTS' MOTIONS TO DISMISS ORIGINAL COMPLAINT. Signed by Judge Alsup on July 20, 2006. (whalc1, COURT STAFF) (Filed on 7/20/2006) (Entered: 07/20/2006)
91 MOTION for Extension of Time to File supplemental brief in accordance with the Court's Order of July 20, 2006 filed by David M. Stone, Terrorist Screening Center, Donna A. Bucella, Norm MIneta, Federal Aviation Administration, Marion C. Blakey, Federal Bureau of Investigation, Robert Mueller, Department of Homeland, Michael Chertoff, Tom Ridge, Transportation Security Administration, Kip Hawley. (Tyler, John) (Filed on 7/21/2006) (Entered: 07/21/2006)
92 ORDER AMENDING SCHEDULE FOR SUPPLEMENTAL BRIEFING FOR MOTIONS TO DISMISS AMENDED COMPLAINT by Judge Alsup granting in part and denying in part 91 Motion for

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Extension of Time to File (whalc1, COURT STAFF) (Filed on 7/21/2006) (Entered: 07/21/2006)
93 MEMORANDUM in Support re 90 Order for Supplemental Briefing on Motion to Dismiss filed byUAL Corporation, United Airlines, David Nevins. (Related document(s) 90 ) (Grotch, Richard) (Filed on 7/27/2006) (Entered: 07/27/2006)
94 MEMORANDUM in Support Supplemental Memorandum re Motion to Dismiss, as Ordered on July 20, 2006 filed byJohn Bondanella. (Mayo, Sharon) (Filed on 7/27/2006) (Entered: 07/27/2006)
95 MEMORANDUM in Support 63 Supplemental Memorandum in support of the federal defendants' motion to dismiss filed byDavid M. Stone, Terrorist Screening Center, Donna A. Bucella, Norm MIneta, Federal Aviation Administration, Marion C. Blakey, Federal Bureau of Investigation, Robert Mueller, Department of Homeland, Michael Chertoff, Tom Ridge, Transportation Security Administration, Kip Hawley. (Tyler, John) (Filed on 7/31/2006) Modified on 8/1/2006 (sis, COURT STAFF). (Entered: 07/31/2006)
96 AMENDED COMPLAINT (FIRST) for 42 U.S.C. section 1983 Violation of: Due Process, Equal Protection, Fourth Amendment, First Amendment Freedom of Religion, First Amendment Freedom of Association; CA Civil Code section 52.1 Interference With Exercise of Civil Rights; CA Civil Code section 52.3 Deprivation of Civil Rights; False Imprisonment; Intentional Infliction of Emotional Distress; Negligent Infliction of Emotional Distress; Declaratory and Injunctive Relief against all defendants. Filed byRahinah Ibrahim. (Hammon, Kevin) (Filed on 8/4/2006) (Entered: 08/04/2006)
97 MEMORANDUM in Opposition re 76 Memorandum in Opposition (Supplemental Response) filed byRahinah Ibrahim. (Related document(s) 76 ) (Hammon, Kevin) (Filed on 8/7/2006) (Entered: 08/07/2006)
Summons Issued as to Transportation Security Operations Center, Transportation Security Intelligence Services, US Investigations Services, Inc.. Amended (sis, COURT STAFF) (Filed on 8/7/2006) (Entered: 08/07/2006)
98 TRANSCRIPT of Proceedings held on 05/18/06 before Judge William Alsup. Court Reporter: Leo Mankiewicz. (sis, COURT STAFF) (Filed on 8/10/2006) (Entered: 08/10/2006)
99 Letter from federal defendants asking for a stay of discovery pending the adjudication of dispositive motions. (Tyler, John) (Filed on 8/14/2006) (Entered: 08/14/2006)

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100 Letter from Defendant John Bondanella joining in federal defendants' request for a discovery stay. (Mayo, Sharon) (Filed on 8/14/2006) (Entered: 08/14/2006)
101 ORDER GRANTING MOTIONS TO DISMISS BROUGHT BY FEDERAL DEFENDANTS, UNITED AIRLINES DEFENDANTS, AND DEFENDANT JOHN BONDANELLA. Signed by Judge Alsup on August 16, 2006. (whalc1, COURT STAFF) (Filed on 8/16/2006) (Entered: 08/16/2006)
102 PARTIAL JUDGMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 54(b) re 101 Order. Signed by Judge Alsup on August 16, 2006. (whalc1, COURT STAFF) (Filed on 8/16/2006) (Entered: 08/16/2006)
103 ORDER FINDING PARTIES' DISCOVERY DISPUTE MOOT AND VACATING DISCOVERY CONFERENCE re 101 Order. Signed by Judge Alsup on August 16, 2006. (whalc1, COURT STAFF) (Filed on 8/16/2006) (Entered: 08/16/2006)
104 STIPULATION To Extend Time to Respond to First Amended Complaint by San Francisco Airport, City of San Francisco, County of San Francisco, San Francisco Police Department, Richard Pate, John Cunningham, Elizabeth Maron. (Flynn, Ronald) (Filed on 8/21/2006) (Entered: 08/21/2006)
105 TRANSCRIPT of Proceedings held on 07/20/06 before Judge William Alsup. Court Reporter: Katherine Powell. (sis, COURT STAFF) (Filed on 8/25/2006) (Entered: 08/25/2006)
106 MOTION to Dismiss Defendants' Motion to Dismiss Plaintiff's First Amended Complaint filed by City of San Francisco, County of San Francisco, Richard Pate, John Cunningham, Elizabeth Maron. Motion Hearing set for 10/5/2006 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Flynn, Ronald) (Filed on 8/28/2006) (Entered: 08/28/2006)
107 STIPULATION to Extend Time to Respond to First Amended Complaint by US Investigations Services, Inc.. (Mayo, Sharon) (Filed on 8/29/2006) (Entered: 08/29/2006)
108 SUMMONS Returned Executed by Rahinah Ibrahim. US Investigations Services, Inc. served on 8/10/2006, answer due 8/30/2006. (Elzankaly, Marwa) (Filed on 8/31/2006) (Entered: 08/31/2006)
109 STIPULATION AND [PROPOSED] ORDER TO CONTINUE DATE OF HEARING ON THE CITY AND COUNTY OF SAN FRANCISCO'S MOTION TO DISMISS by Rahinah Ibrahim. (Elzankaly, Marwa) (Filed on 8/31/2006) (Entered: 08/31/2006)

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110 SUMMONS Returned Executed by Rahinah Ibrahim. Transportation Security Intelligence Services served on 8/7/2006, answer due 10/6/2006. (Elzankaly, Marwa) (Filed on 8/31/2006) (Entered: 08/31/2006)
111 SUMMONS Returned Executed by Rahinah Ibrahim. Transportation Security Operations Center served on 8/7/2006, answer due 10/6/2006. (Elzankaly, Marwa) (Filed on 8/31/2006) (Entered: 08/31/2006)
112 MOTION to Dismiss Pursuant to FRCP 12(b)(1) and 12(b)(6) filed by US Investigations Services, Inc.. Motion Hearing set for 10/19/2006 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Mayo, Sharon) (Filed on 9/13/2006) (Entered: 09/13/2006)
113 Certificate of Interested Entities of Defendant U.S. Investigations Services, Inc. (Mayo, Sharon) (Filed on 9/13/2006) (Entered: 09/13/2006)
114 NOTICE by Rahinah Ibrahim OF APPEAL (Attachments: # 1 Exhibit A to Notice of Appeal# 2 Exhibit B to Notice of Appeal)(Receipt No. 3390112)(Hammon, Kevin) (Filed on 9/15/2006) Modified on 9/19/2006 (sis, COURT STAFF). (Entered: 09/15/2006)
115 EXHIBITS re 114 Notice (Other) PLAINTIFF RAHINAH IBRAHIM'S REPRESENTATION STATEMENT filed byRahinah Ibrahim. (Related document(s) 114 ) (Hammon, Kevin) (Filed on 9/15/2006) (Entered: 09/15/2006)
116 EXHIBITS re 114 Notice (Other) ATTACHMENT TO CIVIL APPEALS DOCKETING STATEMENT filed byRahinah Ibrahim. (Attachments: # 1 Exhibit Attachment to Civil Appeals Docketing Statement)(Related document(s) 114 ) (Hammon, Kevin) (Filed on 9/15/2006) (Entered: 09/15/2006)
Copy of Notice of Appeal and Docket sheet mailed to all counsel (sis, COURT STAFF) (Filed on 9/19/2006) (Entered: 09/19/2006)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals 114 Notice of Appeal (sis, COURT STAFF) (Filed on 9/19/2006) (Entered: 09/19/2006)
117 MOTION to Amend/Correct Federal Defendants' motion to correct clerical error in the Court's Order of August 16, 2006 filed by David M. Stone, Terrorist Screening Center, Donna A. Bucella, Norm MIneta, Federal Aviation Administration, Marion C. Blakey, Federal Bureau of Investigation, Robert Mueller, Transportation Security Operations Center, Transportation Security Intelligence Services, Department of Homeland, Michael Chertoff, Tom Ridge, Transportation Security Administration, Kip Hawley. Motion Hearing set for 11/2/2006 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Attachments:

09/25/2006 09/25/2006
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# 1 Hearing transcript, July 20, 2006# 2 Declaration of James Kennedy)(Tyler, John) (Filed on 9/20/2006) (Entered: 09/20/2006)
USCA Case Number 06-16727 Ninth Circuit re: 114 Notice of Appeal (sis, COURT STAFF) (Filed on 9/25/2006) (Entered: 09/25/2006)
118 STIPULATION AND [PROPOSED] ORDER TO CONTINUE DATE OF HEARING ON THE MOTIONS TO DISMISS FILED BY THE CITY AND COUNTY OF SAN FRANCISCO AND US INVESTIGATIONS SERVICES, INC. by Rahinah Ibrahim. (Elzankaly, Marwa) (Filed on 9/25/2006) (Entered: 09/25/2006)
120 TRANSCRIPT DESIGNATION by Rahinah Ibrahim, Rahinah Ibrahim for proceedings held on 07/20/06 before Judge William Alsup. (sis, COURT STAFF) (Filed on 9/25/2006) (Entered: 09/26/2006)
119 ORDER TO CONTINUE DATE OF HEARINGS. Signed by Judge Alsup on September 26, 2006. (whalc1, COURT STAFF) (Filed on 9/26/2006) (Entered: 09/26/2006)
121 Certificate of Record re 114 Mailed to USCA (sis, COURT STAFF) (Filed on 9/26/2006) (Entered: 09/26/2006)
122 MEMORANDUM in Support OF PLAINTIFF'S ADMINISTRATIVE REQUEST FOR STAY OF DISTRICT COURT PROCEEDINGS PENDING APPEAL filed byRahinah Ibrahim. (Elzankaly, Marwa) (Filed on 10/3/2006) (Entered: 10/03/2006)
123 Declaration of MARWA ELZANKALY in Support of 122 Memorandum in Support of Plaintiff's Administrative Request For Stay of District Court Proceedings Pending Appeal filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A to Elzankaly Declaration)(Related document(s) 122 ) (Elzankaly, Marwa) (Filed on 10/3/2006) (Entered: 10/03/2006)
124 Proposed Order Granting Plaintiff's Administrative Request For Stay Of District Court Proceedings Pending Appeal by Rahinah Ibrahim. (Elzankaly, Marwa) (Filed on 10/3/2006) (Entered: 10/03/2006)
125 Memorandum in Opposition 122 to Plaintiff's Administrative Request for Stay of District Court Proceedings Pending Appeal filed byUS Investigations Services, Inc.. (Mayo, Sharon) (Filed on 10/6/2006) Modified on 10/10/2006 (sis, COURT STAFF). (Entered: 10/06/2006)
126 Proposed Order Denying Plaintiff's Administrative Request for Stay of District Court Proceedings by US Investigations Services, Inc.. (Mayo, Sharon) (Filed on 10/6/2006) (Entered: 10/06/2006)
127 Memorandum in Opposition 112 To Motions To Dismiss Of San Francisco Defendants And US Investigations Services, Inc. filed

10/12/2006 10/19/2006
10/19/2006 10/19/2006 10/26/2006 11/02/2006
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byRahinah Ibrahim. (Elzankaly, Marwa) (Filed on 10/12/2006) Modified on 10/13/2006 (sis, COURT STAFF). (Entered: 10/12/2006)
128 OBJECTIONS to 117 And Request To Strike Portions Of The Federal Defendants' Motion For Correction Of The Court's Order Granting Federal Defendants' Motion To Dismiss Plaintiff's Claims For Lack Of Subject Matter Jurisdiction by Rahinah Ibrahim. (Elzankaly, Marwa) (Filed on 10/12/2006) Modified on 10/13/2006 (sis, COURT STAFF). (Entered: 10/12/2006)
129 Reply Memorandum 117 in support of federal defendants' motion to correct the court's order of August 16, 2006 filed byDavid M. Stone, Terrorist Screening Center, Donna A. Bucella, Norm MIneta, Federal Aviation Administration, Marion C. Blakey, Federal Bureau of Investigation, Robert Mueller, Transportation Security Operations Center, Transportation Security Intelligence Services, Department of Homeland, Michael Chertoff, Tom Ridge, Transportation Security Administration, Kip Hawley. (Tyler, John) (Filed on 10/19/2006) Modified on 10/20/2006 (sis, COURT STAFF). (Entered: 10/19/2006)
130 RESPONSE in Support 106 Reply in Support of Defendants' Motion to Dismiss Plaintiff's First Amended Complaint filed byCity of San Francisco, County of San Francisco, Richard Pate, John Cunningham, Elizabeth Maron. (Flynn, Ronald) (Filed on 10/19/2006) Modified on 10/20/2006 (sis, COURT STAFF). (Entered: 10/19/2006)
131 Reply Memorandum 112 in Support of Defendant USIS' Motion to Dismiss filed byUS Investigations Services, Inc.. (Mayo, Sharon) (Filed on 10/19/2006) Modified on 10/20/2006 (sis, COURT STAFF). (Entered: 10/19/2006)
132 CLERK'S NOTICE Continuing Motions Hearing. Motions Hearing set for 11/9/2006 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (dt, COURT STAFF) (Filed on 10/26/2006) (Entered: 10/26/2006)
133 ORDER GRANTING FEDERAL DEFENDANTS' MOTION FOR CLARIFICATION OF AUGUST 2006 ORDER; GRANTING PLAINTIFF'S MOTION TO STAY; DENYING USIS AND SAN FRANCISCO DEFENDANTS' MOTIONS TO DISMISS AS MOOT; AND VACATING HEARING by Judge Alsup finding as moot 106 Motion to Dismiss, finding as moot 112 Motion to Dismiss, granting 117 Motion to Amend/Correct ; (whalc1, COURT STAFF) (Filed on 11/2/2006) (Entered: 11/02/2006)
134 ORDER RE STATUS OF APPEAL. Signed by Judge Alsup on August 15, 2007. (whalc1, COURT STAFF) (Filed on 8/15/2007) (Entered: 08/15/2007)

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135 STATUS REPORT (Joint) Regarding Status of Appeal by UAL Corporation, United Airlines. (Grotch, Richard) (Filed on 8/16/2007) (Entered: 08/16/2007)
136 STATUS REPORT (Updated) by UAL Corporation, United Airlines, David Nevins. (Grotch, Richard) (Filed on 3/5/2008) (Entered: 03/05/2008)
Certified and Transmitted Record on Appeal to US Court of Appeals (sis, COURT STAFF) (Filed on 4/11/2008) (Entered: 04/11/2008)
137 NOTICE by Rahinah Ibrahim of Change of Firm Name (Elzankaly, Marwa) (Filed on 5/8/2008) (Entered: 05/08/2008)
138 USCA OPINION- Decision of the District Court is Affirmed in Part Reversed in Part and Remanded re 114 Notice of Appeal filed by Rahinah Ibrahim (sis, COURT STAFF) (Filed on 8/22/2008) (Entered: 08/26/2008)
139 CLERK'S NOTICE Scheduling Case Management Conference After Remand. Case Management Conference set for 9/25/2008 11:00 AM. Case Management Statement due by 9/18/2008. (dt, COURT STAFF) (Filed on 9/4/2008) (Entered: 09/04/2008)
140 SUPPLEMENTAL ORDER TO ORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE re 139 Clerk's Notice. Signed by Judge William Alsup on 1/7/08. (dt, COURT STAFF) (Filed on 9/4/2008) (Entered: 09/04/2008)
141 STANDING ORDER FOR ALL JUDGES OF THE NORTHERN DISTRICT OF CALIFORNIA. (dt, COURT STAFF) (Filed on 9/4/2008) (Entered: 09/04/2008)
142 NOTICE of Appearance by Paul Gerald Freeborne (Freeborne, Paul) (Filed on 9/9/2008) (Entered: 09/09/2008)
143 CLERK'S NOTICE VACATING the Case Management Conference set for 9/25/2008. (dt, COURT STAFF) (Filed on 9/10/2008) (Entered: 09/10/2008)
144 USCA ORDER - Federal Appellees' motion for extension of time to file a petition for rehearing is granted. (sis, COURT STAFF) (Filed on 9/17/2008) (Entered: 09/18/2008)
145 NOTICE of Change of Address by Sharon D. Mayo (Mayo, Sharon) (Filed on 10/23/2008) (Entered: 10/23/2008)
146 *** INCORRECT FILING - SEE DOC. #147 *** USCA ORDER Petitions for re-hearing is denied (sis, COURT STAFF) (Filed on 12/11/2008) Modified on 12/12/2008 (sis, COURT STAFF). (Entered: 12/11/2008)

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147 USCA ORDER - PetitionS for rehearing are denied. (sis, COURT STAFF) (Filed on 12/11/2008) (sis, COURT STAFF). (Entered: 12/12/2008)
148 USCA MANDATE - Judgment entered 08/18/08 takes effect this date re 114 Notice of Appeal (sis, COURT STAFF) (Filed on 12/29/2008) (Entered: 12/30/2008)
149 CLERKS NOTICE Scheduling Hearing. Case Management Conference set for 2/12/2009 11:00 AM. Case Management Statement due by 2/5/2009. (dt, COURT STAFF) (Filed on 1/28/2009) (Entered: 01/28/2009)
150 STIPULATION re 149 Clerks Notice Requesting Order to Change Date of Case Management Conference and Proposed Order by David M. Stone, Terrorist Screening Center, Donna A. Bucella, Norm MIneta, Federal Aviation Administration, Federal Bureau of Investigation, Robert Mueller, Transportation Security Operations Center, Transportation Security Intelligence Services, Department of Homeland, Michael Chertoff, Tom Ridge, Transportation Security Administration, Kip Hawley. (Freeborne, Paul) (Filed on 2/2/2009) (Entered: 02/02/2009)
151 STIPULATION AND ORDER CONTINUING CASE MANAGEMENT CONFERENCE TO MARCH 12, 2009, AT 3:00 P.M. Signed by Judge William Alsup on 2/9/2009. (whasec, COURT STAFF) (Filed on 2/9/2009) (Entered: 02/09/2009)
Set Deadlines/Hearings: Case Management Statement due by 3/5/2009. Case Management Conference set for 3/12/2009 03:00 PM. (sis, COURT STAFF) (Filed on 2/9/2009) (Entered: 02/10/2009)
152 DISREGARD DOCUMENT. FILED IN ERROR. Modified on 2/11/2009 (whasec, COURT STAFF). (Entered: 02/11/2009)
153 NOTICE of Appearance by Peter J. Keith (Keith, Peter) (Filed on 3/5/2009) (Entered: 03/05/2009)
154 JOINT CASE MANAGEMENT STATEMENT filed by Rahinah Ibrahim. (Elzankaly, Marwa) (Filed on 3/5/2009) (Entered: 03/05/2009)
155 CLERKS NOTICE Rescheduling Hearing. Further Case Management Conference set for 3/12/2009 11:00 AM. (dt, COURT STAFF) (Filed on 3/6/2009) (Entered: 03/06/2009)
156 Minute Entry: Initial Case Management Conference held on 3/12/2009 before William Alsup (Date Filed: 3/12/2009), CASE REFERRED to Magistrate Judge James for Mediation/Settlement Conference. Jury Trial set for 4/12/2010 07:30 AM. Pretrial Conference set for 3/29/2010 02:00 PM. (Court Reporter Sahar McVickar.) (dt, COURT STAFF) (Date Filed: 3/12/2009) (Entered: 03/12/2009)

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157 CASE MANAGEMENT SCHEDULING ORDER: ORDER REFERRING CASE to Magistrate Judge Maria-Elena James for Mediation/Settlement. ORDER LIFTING STAY. Discovery due by 11/30/2009. Jury Trial set for 4/12/2010 07:30 AM in Courtroom 9, 19th Floor, San Francisco. Motions due by 1/7/2010. Pretrial Conference set for 3/29/2010 02:00 PM in Courtroom 9, 19th Floor, San Francisco. Signed by Judge William Alsup on 3/12/2009. (whasec, COURT STAFF) (Filed on 3/12/2009) (Entered: 03/12/2009)
158 STIPULATION and [Proposed] Order to File Second Amended Complaint by Rahinah Ibrahim. (Elzankaly, Marwa) (Filed on 3/27/2009) (Entered: 03/27/2009)
159 STIPULATION AND ORDER TO FILE SECOND AMENDED COMPLAINT. Signed by Judge Alsup on April 1, 2009. (whalc1, COURT STAFF) (Filed on 4/1/2009) (Entered: 04/01/2009)
160 *** FILED IN ERROR. PLEASE SEE DOCKET # 161 . *** AMENDED DOCUMENT by Rahinah Ibrahim. SECOND AMENDED COMPLAINT. (Elzankaly, Marwa) (Filed on 4/2/2009) Modified on 4/3/2009 (ewn, COURT STAFF). (Entered: 04/02/2009)
161 AMENDED DOCUMENT by Rahinah Ibrahim. Second Amended Complaint CORRECTION OF DOCKET # 160 . (Elzankaly, Marwa) (Filed on 4/2/2009) (Entered: 04/02/2009)
162 ORDER re 157 Case Management Scheduling Order, Order Referring Case to Magistrate Judge for Settlement, Order Lifting Stay,,, 156 Case Management Conference - Initial, Case Referred to Magistrate Judge for Settlement Conference, Set Hearings,,, Settlement Conference set for 4/3/2009 10:00 AM.. Signed by Judge MARIA-ELENA JAMES on 4/3/09. (bjt, COURT STAFF) (Filed on 4/3/2009) (Entered: 04/03/2009)
163 Summons Issued re: 161 Second Amended Complaint, as to Janet Napolitano, Eric H. Holder, Jr, Leonard C. Boyle, Arthur M. Cummings, II, National Counterterrorism Center, Michael E. Leiter, Department of State, Hilary Clinton. (sis, COURT STAFF) (Filed on 4/6/2009) (Entered: 04/08/2009)
Appeal Record Returned: (sis, COURT STAFF) (Filed on 4/9/2009) (Entered: 04/10/2009)
164 NOTICE of Appearance by Samuel Po Go (Go, Samuel) (Filed on 4/15/2009) (Entered: 04/15/2009)
165 MOTION to Dismiss Portions of the Second Amended Complaint (the First, Fifth and Seventh Causes of Action stated against the San Francisco defendants) filed by San Francisco Airport, City and County of San Francisco, San Francisco Police Department, Richard Pate, John Cunningham, Elizabeth Maron. Motion Hearing set for 7/16/2009 08:00

06/01/2009
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AM in Courtroom 9, 19th Floor, San Francisco. (Flynn, Ronald) (Filed on 6/1/2009) (Entered: 06/01/2009)
166 Proposed Order re 165 MOTION to Dismiss Portions of the Second Amended Complaint (the First, Fifth and Seventh Causes of Action stated against the San Francisco defendants) MOTION to Dismiss Portions of the Second Amended Complaint (the First, Fifth and Seventh Causes of Action stated against the San Francisco defendants) by San Francisco Airport, City and County of San Francisco, San Francisco Police Department, Richard Pate, John Cunningham, Elizabeth Maron. (Flynn, Ronald) (Filed on 6/1/2009) (Entered: 06/01/2009)
167 MOTION to Dismiss Federal Defendants filed by Terrorist Screening Center, Donna A. Bucella, Federal Bureau of Investigation, Robert Mueller, Janet Napolitano, Eric H. Holder, Jr, Leonard C. Boyle, Arthur M. Cummings, II, National Counterterrorism Center, Michael E. Leiter, Department of State, Hilary Clinton, Department of Homeland Security, Michael Chertoff, Tom Ridge. Motion Hearing set for 7/16/2009 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1 Memorandum in Support of Motion to Dismiss, # 2 Exhibit Exhibit 1 to Memorandum in Support of Motion to Dismiss, # 3 Proposed Order)(Freeborne, Paul) (Filed on 6/1/2009) (Entered: 06/01/2009)
168 MOTION to Dismiss Portions of Plaintiff's Second Amended Complaint filed by John Bondanella, US Investigations Services, Inc.. Motion Hearing set for 7/16/2009 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Mayo, Sharon) (Filed on 6/1/2009) (Entered: 06/01/2009)
169 Proposed Order on Motion to Dismiss Portions of Second Amended Complaint by John Bondanella, US Investigations Services, Inc.. (Mayo, Sharon) (Filed on 6/1/2009) (Entered: 06/01/2009)
170 SUMMONS Returned Executed by Rahinah Ibrahim. Leonard C. Boyle served on 4/14/2009, answer due 6/15/2009. (Elzankaly, Marwa) (Filed on 6/2/2009) (Entered: 06/02/2009)
171 SUMMONS Returned Executed by Rahinah Ibrahim. Leonard C. Boyle served on 4/28/2009, answer due 6/29/2009. (U.S. Attorney General D.C.) (Elzankaly, Marwa) (Filed on 6/2/2009) (Entered: 06/02/2009)
172 SUMMONS Returned Executed by Rahinah Ibrahim. Leonard C. Boyle served on 4/9/2009, answer due 6/9/2009. (U.S. Attorney San Francisco) (Elzankaly, Marwa) (Filed on 6/2/2009) Modified on 6/4/2009 (sis, COURT STAFF). (Entered: 06/02/2009)
173 SUMMONS Returned Executed by Rahinah Ibrahim. Janet Napolitano served on 5/6/2009, answer due 7/6/2009. (Elzankaly, Marwa) (Filed on 6/2/2009) (Entered: 06/02/2009)

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06/25/2009
06/25/2009

174 SUMMONS Returned Executed by Rahinah Ibrahim. Janet Napolitano served on 4/27/2009, answer due 6/26/2009. (U.S. Attorney General D.C.) (Elzankaly, Marwa) (Filed on 6/2/2009) Modified on 6/4/2009 (sis, COURT STAFF). (Entered: 06/02/2009)
175 SUMMONS Returned Executed by Rahinah Ibrahim. Janet Napolitano served on 4/8/2009, answer due 6/8/2009. (U.S. Attorney San Francisco) (Elzankaly, Marwa) (Filed on 6/2/2009) Modified on 6/4/2009 (sis, COURT STAFF). (Entered: 06/02/2009)
176 SUMMONS Returned Executed by Rahinah Ibrahim. Eric H. Holder, Jr served on 4/27/2009, answer due 6/26/2009. (Elzankaly, Marwa) (Filed on 6/2/2009) (Entered: 06/02/2009)
177 SUMMONS Returned Executed by Rahinah Ibrahim. Eric H. Holder, Jr served on 4/28/2009, answer due 6/29/2009. (U.S. Attorney General D.C.) (Elzankaly, Marwa) (Filed on 6/2/2009) (Entered: 06/02/2009)
178 SUMMONS Returned Executed by Rahinah Ibrahim. Eric H. Holder, Jr served on 4/8/2009, answer due 6/8/2009. (U.S. Attorney San Francisco) (Elzankaly, Marwa) (Filed on 6/2/2009) Modified on 6/4/2009 (sis, COURT STAFF). (Entered: 06/02/2009)
179 SUMMONS Returned Executed by Rahinah Ibrahim. Department of State served on 4/15/2009, answer due 6/15/2009. (Elzankaly, Marwa) (Filed on 6/2/2009) (Entered: 06/02/2009)
180 SUMMONS Returned Executed by Rahinah Ibrahim. Department of State served on 4/27/2009, answer due 6/26/2009. (U.S. Attorney General D.C.) (Elzankaly, Marwa) (Filed on 6/2/2009) (Entered: 06/02/2009)
181 SUMMONS Returned Executed by Rahinah Ibrahim. Department of State served on 4/8/2009, answer due 6/8/2009. (U.S. Attorney San Francisco) (Elzankaly, Marwa) (Filed on 6/2/2009) Modified on 6/4/2009 (sis, COURT STAFF). (Entered: 06/02/2009)
182 *** FILED IN ERROR. PLEASE SEE DOCKET # 184 . *** Request for Judicial Notice in Support of Opposition to the Federal Defendants' Motion to Dismiss filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A & B)(Elzankaly, Marwa) (Filed on 6/25/2009) Modified on 6/26/2009 (ewn, COURT STAFF). (Entered: 06/25/2009)
183 *** FILED IN ERROR. PLEASE SEE DOCKET # 185 . *** MEMORANDUM in Opposition to Federal Defendants' Motion to Dismiss filed byRahinah Ibrahim. (Elzankaly, Marwa) (Filed on 6/25/2009) Modified on 6/26/2009 (ewn, COURT STAFF). (Entered: 06/25/2009)
184 Request for Judicial Notice 185 in Support of Opposition to the Federal Defendants' Motion to Dismiss CORRECTION OF DOCKET # 182 filed

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by Rahinah Ibrahim. (Attachments: # 1 Exhibit A&B)(Elzankaly, Marwa) (Filed on 6/25/2009) Modified on 6/29/2009 (sis, COURT STAFF). (Entered: 06/25/2009)
185 MEMORANDUM in Opposition 167 to Federal Defendants' Motion to Dismiss CORRECTION OF DOCKET # 183 . filed by Rahinah Ibrahim. (Elzankaly, Marwa) (Filed on 6/25/2009) Modified on 6/29/2009 (sis, COURT STAFF). (Entered: 06/25/2009)
186 Memorandum in Opposition 168 to Motions to Dismiss of San Francisco Defendants and Defendants John Bondanella and US Investigations Services, Inc. filed by Rahinah Ibrahim. (Elzankaly, Marwa) (Filed on 6/25/2009) Modified on 6/29/2009 (sis, COURT STAFF). (Entered: 06/25/2009)
187 Reply to Opposition 165 Reply in Support of Motion to Dismiss Portions of the Second Amended Complaint (The First, Fifth and Seventh Causes of Action Stated Against the San Francisco Defendants) filed by City and County of San Francisco, John Cunningham, Elizabeth Maron, Richard Pate, San Francisco Airport, San Francisco Police Department. (Flynn, Ronald) (Filed on 7/2/2009) Modified on 7/6/2009 (sis, COURT STAFF). (Entered: 07/02/2009)
188 Reply Memorandum re 167 MOTION to Dismiss Federal Defendants filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Exhibit)(Freeborne, Paul) (Filed on 7/2/2009) (Entered: 07/02/2009)
189 Reply Memorandum 168 in Support of Motions to Dismiss Plaintiff's Second Amended Complaint filed by John Bondanella, US Investigations Services, Inc.. (Mayo, Sharon) (Filed on 7/2/2009) Modified on 7/6/2009 (sis, COURT STAFF). (Entered: 07/02/2009)
190 NOTICE of Appearance by Lily Sara Farel (Farel, Lily) (Filed on 7/8/2009) (Entered: 07/08/2009)
191 REQUEST FOR INFORMATION RE MOTIONS TO DISMISS. Signed by Judge Alsup on July 10, 2009. (whalc1, COURT STAFF) (Filed on 7/10/2009) (Entered: 07/10/2009)
192 OBJECTIONS to 188 and Request to Strike Portions of the Federal Defendants' Reply in Support of Motion to Dismiss; Proposed Order by Rahinah Ibrahim. (Peek, Christine) (Filed on 7/10/2009) Modified on 7/13/2009 (sis, COURT STAFF). (Entered: 07/10/2009)

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193 Memorandum in Opposition to Plaintiff's Objection to and Request to Strike Portions of the Federal Defendants' Reply filed byMichael Chertoff, Hilary Clinton, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center, Transportation Security Operations Center. (Farel, Lily) (Filed on 7/13/2009) (Entered: 07/13/2009)
194 DECLARATION of Rahinah Ibrahim 167 in Opposition to the Federal Defendants' Motion to Dismiss filed by Rahinah Ibrahim. (Peek, Christine) (Filed on 7/15/2009) Modified on 7/16/2009 (sis, COURT STAFF). (Entered: 07/15/2009)
195 NOTICE by Rahinah Ibrahim Notice of Errata to Plaintiff's Opposition to Defendant's Motion to Dismiss (Attachments: # 1 Exhibit A & B)(Peek, Christine) (Filed on 7/15/2009) (Entered: 07/15/2009)
196 Minute Entry: Motion Hearing held on 7/16/2009 before William Alsup (Date Filed: 7/16/2009) re 167 MOTION to Dismiss Federal Defendants 168 MOTION to Dismiss Portions of Plaintiff's Second Amended Complaint filed by John Bondanella, US Investigations Services, Inc., 165 MOTION to Dismiss Portions of the Second Amended Complaint filed by San Francisco Airport, Richard Pate, City and County of San Francisco, John Cunningham, Elizabeth Maron, San Francisco Police Department. (Court Reporter Sahar McVickar.) (dt, COURT STAFF) (Date Filed: 7/16/2009) (Entered: 07/20/2009)
197 ORDER ON MOTIONS TO DISMISS by Judge Alsup [re 165 Motion to Dismiss; 167 Motion to Dismiss; 168 Motion to Dismiss]. (whalc1, COURT STAFF) (Filed on 7/27/2009) (Entered: 07/27/2009)
198 Transcript of Proceedings held on 07/16/09, before Judge William Alsup. Court Reporter/Transcriber Sahar McVickar, Telephone number (415) 626-6060/sahar_mcvickar@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 10/23/2009. (McVickar, Sahar) (Filed on 7/28/2009) (Entered: 07/28/2009)
199 DEFENDANTS CITY AND COUNTY OF SAN FRANCISCO'S, JAMES CUNNINGHAM'S, ELIZABETH MARON'S, AND RICHARD PATE'S ANSWER to Complaint Plaintiff's Second Complaint byCity and County of San Francisco. (Flynn, Ronald) (Filed on 8/10/2009) (Entered: 08/10/2009)

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200 ANSWER to Complaint byJohn Bondanella. (Mayo, Sharon) (Filed on 8/10/2009) (Entered: 08/10/2009)
201 ANSWER to Complaint byUS Investigations Services, Inc.. (Mayo, Sharon) (Filed on 8/10/2009) (Entered: 08/10/2009)
202 MOTION for Entry of Judgment under Rule 54(b) Notice of Motion and Motion for Entry of Partial Final Judgment and Certification for Immediate Appeal on the Thirteenth Cause of Action in Plaintiff's Second Amended Complaint; Request for Stay of Proceedings Pending Appeal filed by Rahinah Ibrahim. Motion Hearing set for 10/15/2009 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Peek, Christine) (Filed on 9/8/2009) (Entered: 09/08/2009)
203 Declaration of Elizabeth Pipkin in Support of Plaintiff's Motion for Entry of Partial Final Judgment and Certification for Immediate Appeal on the Thirteenth Cause of Action in Plaintiff's Second Amended Complaint; Request for Stay of Proceedings Pending Appeal filed byRahinah Ibrahim. (Peek, Christine) (Filed on 9/8/2009) (Entered: 09/08/2009)
204 Proposed Order Granting Plaintiff's Motion for Entry of Partial Final Judgment and Certification for Immediate Appeal on the Thirteenth Cause of Action in Plaintiff's Second Amended Complaint; Request for Stay of Proceedings Pending Appeal by Rahinah Ibrahim. (Peek, Christine) (Filed on 9/8/2009) (Entered: 09/08/2009)
205 Memorandum in Opposition re 202 MOTION for Entry of Judgment under Rule 54(b) Notice of Motion and Motion for Entry of Partial Final Judgment and Certification for Immediate Appeal on the Thirteenth Cause of Action in Plaintiff's Second Amended Complaint; Request for Stay of MOTION for Entry of Judgment under Rule 54(b) Notice of Motion and Motion for Entry of Partial Final Judgment and Certification for Immediate Appeal on the Thirteenth Cause of Action in Plaintiff's Second Amended Complaint; Request for Stay of filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Farel, Lily) (Filed on 9/24/2009) (Entered: 09/24/2009)
206 Memorandum in Opposition 202 to Plaintiff's Request for Stay of Proceedings filed by John Bondanella, US Investigations Services, Inc.. (Mayo, Sharon) (Filed on 9/24/2009) Modified on 9/28/2009 (sis, COURT STAFF). (Entered: 09/24/2009)
207 Memorandum in Opposition 202 SAN FRANCISCO DEFENDANTS' NON-OPPOSITION TO MOTION FOR ENTRY OF FINAL JUDGMENT AND CERTIFICATION AND OPPOSITION TO MOTION FOR STAY;

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DECLARATION OF PETER J. KEITH filed by City and County of San Francisco, John Cunningham, Elizabeth Maron, Richard Pate, San Francisco Airport, San Francisco Police Department. (Keith, Peter) (Filed on 9/24/2009) Modified on 9/28/2009 (sis, COURT STAFF). (Entered: 09/24/2009)
210 NOTICE OF APPEAL as to 197 Order on Motion to Dismiss,, by Rahinah Ibrahim. (Attachments: # 1 Civil Appeals Docketing Statement)(sis, COURT STAFF) (Filed on 9/25/2009) (Entered: 09/30/2009)
216 USCA Case Number 09-17160 Ninth Circuit for 210 Notice of Appeal filed by Rahinah Ibrahim. (sis, COURT STAFF) (Filed on 9/28/2009) (Entered: 10/02/2009)
208 Proposed Order [Proposed] Order Authorizing Discovery of Confidential Criminal History Information in the Possession of Defendant City and County of San Francisco [Stipulated] by City and County of San Francisco, John Cunningham, Elizabeth Maron, Richard Pate, San Francisco Airport, San Francisco Police Department. (Flynn, Ronald) (Filed on 9/29/2009) (Entered: 09/29/2009)
209 Proposed Order [Proposed] Protective Order [Stipulated] by City and County of San Francisco, John Cunningham, Elizabeth Maron, Richard Pate, San Francisco Airport, San Francisco Police Department. (Flynn, Ronald) (Filed on 9/29/2009) (Entered: 09/29/2009)
211 Copy of Notice of Appeal and Docket sheet e-filed to all counsel (sis, COURT STAFF) (Filed on 9/30/2009) (Additional attachment(s) added on 9/30/2009: # 1 Cover letter) (sis, COURT STAFF). (Entered: 09/30/2009)
212 STIPULATION AND ORDER AUTHORIZING DISCOVERY OF CONFIDENTIAL CRIMINAL HISTORY INFORMATION IN THE POSSESSION OF DEFENDANT CITY AND COUNTY OF SAN FRANCISCO. Signed by Judge Alsup on October 1, 2009. (whalc1, COURT STAFF) (Filed on 10/1/2009) (Entered: 10/01/2009)
213 ORDER APPROVING STIPULATED PROTECTIVE ORDER SUBJECT TO STATED CONDITIONS. Signed by Judge Alsup on October 1, 2009. (whalc1, COURT STAFF) (Filed on 10/1/2009) (Entered: 10/01/2009)
214 REPLY to Response to Motion 202 Plaintiff's Reply in Support of Motion for Entry of Partial Final Judgment and Certification for Immediate Appeal on the Thirteenth Cause of Action in Plaintiff's Second Amended Complaint; Request for Stay of Proceedings Pending Appeal filed by Rahinah Ibrahim. (Peek, Christine) (Filed on 10/1/2009) Modified on 10/2/2009 (sis, COURT STAFF). (Entered: 10/01/2009)

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215 Declaration of Elizabeth Pipkin 202 Reply Declaration of Elizabeth Pipkin in Support of Plaintiff's Motion for Entry of Partial Final Judgment and Certification for Immediate Appeal on the Thirteenth Cause of Action in Plaintiff's Second Amended Complaint; Request for Stay of Proceedings Pending Appeal filed by Rahinah Ibrahim. (Peek, Christine) (Filed on 10/1/2009) Modified on 10/2/2009 (sis, COURT STAFF). (Entered: 10/01/2009)
Filing fee: $ 455, receipt number 34611037299. (sis, COURT STAFF) (Filed on 10/1/2009) (Entered: 10/02/2009)
217 ORDER RE PLAINTIFF'S MOTION FOR ENTRY OF PARTIAL FINAL JUDGMENT AND CERTIFICATION FOR IMMEDIATE APPEAL AND VACATING HEARING by Judge alsup (re 202 Motion for Entry of Judgment under Rule 54(b)). The hearing scheduled for October 15, 2009 is VACATED. (whalc1, COURT STAFF) (Filed on 10/7/2009) (Entered: 10/07/2009)
218 NOTICE by John Bondanella, US Investigations Services, Inc. Request of Defendant John Bondanella to be Excused from Personal Attendance at Settlement Conference (Mayo, Sharon) (Filed on 10/23/2009) (Entered: 10/23/2009)
219 Proposed Order on Request of Defendant John Bondanella to be Excused from Personal Attendance at Settlement Conference by John Bondanella, US Investigations Services, Inc.. (Mayo, Sharon) (Filed on 10/23/2009) (Entered: 10/23/2009)
220 Letter from Elizabeth Pipkin Counsel for Plaintiff Rahinah Ibrahim. (Attachments: # 1 Plaintiff's Amended Request for Production of Documents to Defendants Department of Homeland Security, Federal Bureau of Investigations, and Terrorist Screening Center, # 2 Department of Homeland Security's, Federal Bureau of Investigation's, and Terrorist Screening Center's Objections and Responses to Plaintiff's Amended Request for Production of Documents, # 3 Plaintiff's Amended Special Interrogatories to Defendants Department of Homeland Security, Federal Bureau of Investigations, and Terrorist Screening Center, # 4 Department of Homeland Security's, Federal Bureau of Investigation's, and Terrorist Screening Center's Objections and Responses to Plaintiff's Amended Special Interrogatories)(Pipkin, Elizabeth) (Filed on 10/27/2009) (Entered: 10/27/2009)
221 ORDER SETTING HEARING RE PLAINTIFF'S DISCOVERY DISPUTE [re 220 Letter filed by Rahinah Ibrahim]. Signed by Judge William Alsup on 10/28/2009. (whasec, COURT STAFF) (Filed on 10/28/2009) (Entered: 10/28/2009)
222 MOTION to Seal Document SAN FRANCISCO DEFENDANTS' ADMINISTRATIVE MOTION TO FILE UNDER SEAL ATTACHMENT B

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TO SAN FRANCISCO DEFENDANTS' DISCOVERY LETTER [UNOPPOSED] filed by City and County of San Francisco, John Cunningham, Elizabeth Maron, Richard Pate, San Francisco Airport, San Francisco Police Department. (Keith, Peter) (Filed on 10/28/2009) (Entered: 10/28/2009)
223 Proposed Order re 222 MOTION to Seal Document SAN FRANCISCO DEFENDANTS' ADMINISTRATIVE MOTION TO FILE UNDER SEAL ATTACHMENT B TO SAN FRANCISCO DEFENDANTS' DISCOVERY LETTER [UNOPPOSED] MOTION to Seal Document SAN FRANCISCO DEFENDANTS' ADMINISTRATIVE MOTION TO FILE UNDER SEAL ATTACHMENT B TO SAN FRANCISCO DEFENDANTS' DISCOVERY LETTER [UNOPPOSED] by City and County of San Francisco, John Cunningham, Elizabeth Maron, Richard Pate, San Francisco Airport, San Francisco Police Department. (Keith, Peter) (Filed on 10/28/2009) (Entered: 10/28/2009)
224 Letter from Peter J. Keith. (Attachments: # 1 Exhibit A)(Keith, Peter) (Filed on 10/28/2009) (Entered: 10/28/2009)
229 FILED UNDER SEAL- ATTACHMENT B re 224 Letter filed byCity and County of San Francisco. (Related document(s) 224 ) (sis, COURT STAFF) (Filed on 10/28/2009) (Entered: 11/03/2009)
225 ORDER re 219 Proposed Order filed by John Bondanella, US Investigations Services, Inc. Signed by Chief Magistrate Judge MARIAELENA JAMES on 10/30/09. (bjt, COURT STAFF) (Filed on 10/30/2009) (Entered: 10/30/2009)
226 ORDER GRANTING SAN FRANCISCO DEFENDANTS' ADMINISTRATIVE MOTION TO FILE UNDER SEAL ATTACHMENT B TO SAN FRANCISCO DEFENDANTS' DISCOVERY LETTER by Judge Alsup (re 222 Motion to Seal Document). (whalc1, COURT STAFF) (Filed on 11/2/2009) (Entered: 11/02/2009)
227 ORDER SETTING HEARING RE SAN FRANCISCO DEFENDANT'S DISCOVERY DISPUTE. Motion Hearing set for 11/25/2009 02:30 PM in Courtroom 9, 19th Floor, San Francisco. Signed by Judge Alsup on October 30, 2009. (whalc1, COURT STAFF) (Filed on 11/2/2009) (Entered: 11/02/2009)
228 Letter from Defendants John Bondanella and USIS to Judge Alsup re Discovery Dispute. (Mayo, Sharon) (Filed on 11/2/2009) (Entered: 11/02/2009)
230 ORDER SETTING HEARING ON DEFENDANTS' DISCOVERY DISPUTE [Friday, November 6, 2009, at 2:30 pm]. Signed by Judge

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William Alsup on 11/3/2009. (whasec, COURT STAFF) (Filed on 11/4/2009) (Entered: 11/04/2009)
Set/Reset Hearings: Discovery Hearing set for 11/6/2009 02:30 PM. (sis, COURT STAFF) (Filed on 11/4/2009) (Entered: 11/05/2009)
231 MOTION to Compel Production of Documents and Answers to Interrogatories as to the Federal Defendants; Request for Continuance of Fact Discovery Cutoff and Expert Disclosure Deadline filed by Rahinah Ibrahim. Motion Hearing set for 11/18/2009 02:00 PM in Courtroom 9, 19th Floor, San Francisco. (Pipkin, Elizabeth) (Filed on 11/5/2009) (Entered: 11/05/2009)
232 Declaration of Elizabeth Pipkin in Support of Plaintiff's Motion to Compel Production of Documents and Answers to Interrogatories as to the Federal Defendants; Request for Continuance of Fact Discovery Cutoff and Expert Disclosure Deadline filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A - K)(Pipkin, Elizabeth) (Filed on 11/5/2009) (Entered: 11/05/2009)
233 Statement Separate Statement in Support of Plaintiff's Motion to Compel Production of Documents and Answers to Interrogatories as to the Federal Defendants by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 11/5/2009) (Entered: 11/05/2009)
234 Proposed Order Granting Plaintiff's Motion to Compel Production of Documents and Answers to Interrogatories as to the Federal Defendants; Request for Continuance of Fact Discovery Cutoff and Expert Disclosure Deadline by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 11/5/2009) (Entered: 11/05/2009)
235 Letter from Elizabeth Pipkin in Response to Mayo's Letter Dated November 2, 2009. (Attachments: # 1 Exhibit A - C)(Pipkin, Elizabeth) (Filed on 11/5/2009) (Entered: 11/05/2009)
236 Minute Entry: Further Settlement Conference Held. (Date Filed: 11/6/2009). Further Settlement Conference set for 12/21/2009 10:00 AM. () (bjt, COURT STAFF) (Date Filed: 11/6/2009) (Entered: 11/06/2009)
249 Minute Entry: Discovery Hearing held on 11/6/2009 before William Alsup (Date Filed: 11/6/2009). (Court Reporter Belle Ball.) (dt, COURT STAFF) (Date Filed: 11/6/2009) (Entered: 11/16/2009)
237 Proposed Order Setting Hearing Date on Privilege Motions and Extending Discovery Deadlines by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 11/9/2009) (Entered: 11/09/2009)
238 Notice of Motion and Motion for Order Authorizing Disclosures by San Francisco Defendants; Memorandum of Points and Authorities in Support Thereof filed by City and County of San Francisco. (Keith,

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Peter) (Filed on 11/9/2009) Modified on 11/10/2009 (sis, COURT STAFF). (Entered: 11/09/2009)
239 Declaration of Peter J. Keith in Support of 238 Brief San Francisco Defendants' Motion for Order Authorizing Disclosures filed byCity and County of San Francisco. (Related document(s) 238 ) (Keith, Peter) (Filed on 11/9/2009) (Entered: 11/09/2009)
240 EXHIBITS re 239 Declaration in Support of San Francisco Defendants' Motion for Order Authorizing Disclosures filed byCity and County of San Francisco. (Attachments: # 1 Exhibit C, # 2 Exhibit D, # 3 Exhibit E, # 4 Exhibit F, # 5 Exhibit G, # 6 Exhibit H, # 7 Exhibit I, # 8 Exhibit J, # 9 Exhibit K)(Related document(s) 239 ) (Keith, Peter) (Filed on 11/9/2009) (Entered: 11/09/2009)
241 Proposed Order re 238 Brief Authorizing Disclosures by San Francisco Defendants by City and County of San Francisco. (Keith, Peter) (Filed on 11/9/2009) (Entered: 11/09/2009)
242 EXHIBIT A re 239 Declaration in Support of San Francisco Defendants' Motion for Order Authorizing Disclosures filed byCity and County of San Francisco. (Related document(s) 239 ) (Keith, Peter) (Filed on 11/9/2009) Modified on 11/10/2009 (sis, COURT STAFF). (Entered: 11/09/2009)
243 Memorandum in Opposition re 231 MOTION to Compel Production of Documents and Answers to Interrogatories as to the Federal Defendants; Request for Continuance of Fact Discovery Cutoff and Expert Disclosure Deadline filed byDepartment of Homeland Security, Federal Bureau of Investigation, Terrorist Screening Center. (Attachments: # 1 Exhibits)(Freeborne, Paul) (Filed on 11/12/2009) (Entered: 11/12/2009)
244 SCHEDULING ORDER SETTING HEARING DATE ON PRIVILEGE MOTIONS AND EXTENDING DISCOVERY DEADLINES Final Pretrial Conference set for 3/29/2010 02:00 PM in Courtroom 9, 19th Floor, San Francisco. Discovery due by 12/24/2009. Motions due by 1/28/2010.. Signed by Judge Alsup on November 12, 2009. (whalc1, COURT STAFF) (Filed on 11/12/2009) (Entered: 11/12/2009)
245 Letter from Non-Parties Department of Homeland Security, Department of State, and Federal Bureau of Investigation. (Attachments: # 1 Subpoena--DHS, # 2 Subpoena--DOS, # 3 Subpoena--Lee Korman, # 4 Subpoena--Paul Wood, # 5 Letter to Plaintiff's Counsel)(Farel, Lily) (Filed on 11/12/2009) (Entered: 11/12/2009)
246 Letter from Department of Homeland Security, Department of State, Federal Bureau of Investigation, and Transportation Security

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Administration. (Farel, Lily) (Filed on 11/13/2009) (Entered: 11/13/2009)
247 Letter from City and County of San Francisco to the Honorable William H. Alsup. (Keith, Peter) (Filed on 11/13/2009) (Entered: 11/13/2009)
248 ORDER CHANGING HEARING DATE AND RESPONDING TO NON-PARTIES' LETTER RE MOTION TO QUASH [re 245 Letter, filed by Department of Homeland Security, Donna A. Bucella, Department of State, Transportation Security Administration, Federal Bureau of Investigation]. Signed by Judge William Alsup on 11/13/2009. (whasec, COURT STAFF) (Filed on 11/13/2009) (Entered: 11/13/2009)
Set/Reset Deadlines as to 231 MOTION to Compel Production of Documents and Answers to Interrogatories as to the Federal Defendants; Request for Continuance of Fact Discovery Cutoff and Expert Disclosure Deadline. Motion Hearing set for 11/23/2009 09:00 AM in Courtroom 9, 19th Floor, San Francisco. (sis, COURT STAFF) (Filed on 11/13/2009) (Entered: 11/16/2009)
250 MOTION to Seal and for in camera review filed by Federal Bureau of Investigation, Transportation Security Administration. Motion Hearing set for 11/23/2009 09:00 AM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order to Seal, # 2 Proposed Protective Order)(Farel, Lily) (Filed on 11/16/2009) (Entered: 11/16/2009)
251 Memorandum in Opposition to San Francisco Defendants' Motion to Authorize Disclosure filed byDepartment of Homeland Security, Federal Bureau of Investigation, Transportation Security Administration. (Farel, Lily) (Filed on 11/16/2009) (Entered: 11/16/2009)
252 Reply to Opposition 231 Plaintiff's Reply in Support of Motion to Compel Production of Documents and Answers to Interrogatories as to the Federal Defendants; Request for Continuance of Fact Discovery Cutoff and Expert Disclosure Deadline filed by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 11/16/2009) Modified on 11/17/2009 (sis, COURT STAFF). (Entered: 11/16/2009)
253 Declaration of Elizabeth Pipkin in Support of Plaintiff's Reply in Support of Motion to Compel Production of Documents and Answers to Interrogatories as to the Federal Defendants; Request for Continuance of Fact Discovery Cutoff and Expert Disclosure Deadline filed byRahinah Ibrahim. (Attachments: # 1 Exhibit Exhibit L)(Pipkin, Elizabeth) (Filed on 11/16/2009) (Entered: 11/16/2009)
254 REPLY to Response to Motion re 250 MOTION to Seal and for in camera review SAN FRANCISCO DEFENDANTS' RESPONSE TO FEDERAL NON-PARTIES' ADMINISTRATIVE MOTION TO FILE UNDER SEAL AND SUBMIT FOR IN CAMERA REVIEW THE

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DECLARATION OF ARTHUR M. CUMMINGS, II, THE EXECUTIVE DIRECTOR FOR NATIONAL SECURITY FOR THE FBI [CIVIL LOCAL RULE 7-11(B)] filed byCity and County of San Francisco. (Attachments: # 1 Proposed Order [Proposed] Order that United States Provide San Francisco Defendants with Cummings Declaration)(Keith, Peter) (Filed on 11/16/2009) (Entered: 11/16/2009)
255 ORDER RE NON-PARTIES' ADMINISTRATIVE MOTION TO FILE UNDER SEAL AND IN CAMERA AND CHANGING DEADLINES [re 250 MOTION to Seal and for in camera review filed by Transportation Security Administration, Federal Bureau of Investigation]. Signed by Judge William Alsup on 11/17/2009. (whasec, COURT STAFF) (Filed on 11/17/2009) (Entered: 11/17/2009)
256 MOTION to Quash filed by Department of Homeland Security, Department of State, Federal Bureau of Investigation. Motion Hearing set for 11/23/2009 09:00 AM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order, # 2 Exhibit A: Letter to Plaintiff's Counsel, # 3 Exhibit B: 11/12/09 Letter to Court, # 4 Department of State Subpoena, # 5 Department of Homeland Security Subpoena, # 6 Lee Korman Subpoena, # 7 Paul Wood Subpoena)(Farel, Lily) (Filed on 11/17/2009) (Entered: 11/17/2009)
257 Brief Motion for Clarification filed byFederal Bureau of Investigation, Transportation Security Administration. (Farel, Lily) (Filed on 11/17/2009) (Entered: 11/17/2009)
258 ORDER RE FEDERAL NON-PARTIES' REQUEST FOR CLARIFICATION [re 257 Brief filed by Transportation Security Administration, Federal Bureau of Investigation]. Signed by Judge William Alsup on 11/18/2009. (whasec, COURT STAFF) (Filed on 11/18/2009) (Entered: 11/18/2009)
259 MOTION re 258 Order San Francisco Defendants' Request to Modify the Court's Order of November 18, 2009 filed by City and County of San Francisco. (Keith, Peter) (Filed on 11/18/2009) (Entered: 11/18/2009)
260 ORDER DENYING 259 SAN FRANCISCO DEFENDANTS' REQUEST TO MODIFY THE COURT'S ORDER OF NOVEMBER 18, 2009 [re 258 Order]. Signed by Judge William Alsup on 11/18/2009. (whasec, COURT STAFF) (Filed on 11/18/2009) Modified on 11/19/2009 (sis, COURT STAFF). (Entered: 11/18/2009)
261 Memorandum in Opposition 256 Plaintiff's Opposition to Motion to Quash Subpoenas Filed by the Department of Homeland Security, Federal Bureau of Investigation, and Department of State filed by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 11/19/2009) Modified on 11/20/2009 (sis, COURT STAFF). (Entered: 11/19/2009)

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262 Declaration of Elizabeth Pipkin 261 in Support of Plaintiff's Opposition to Motion to Quash Subpoenas Filed by the Department of Homeland Security, Federal Bureau of Investigation, and Department of State filed by Rahinah Ibrahim. (Attachments: # 1 Exhibit A - I)(Pipkin, Elizabeth) (Filed on 11/19/2009) Modified on 11/20/2009 (sis, COURT STAFF). (Entered: 11/19/2009)
263 ORDER RE DISCOVERY DISPUTE. Signed by Judge William Alsup on 11/19/2009. (whasec, COURT STAFF) (Filed on 11/19/2009) (Entered: 11/19/2009)
264 NOTICE by Federal Bureau of Investigation, Transportation Security Administration re 258 Order Submission of Privilege over Protected Documents San Francisco Defendants Seek to Disclose (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Farel, Lily) (Filed on 11/20/2009) (Entered: 11/20/2009)
265 NOTICE by Department of Homeland Security, Department of State, Federal Bureau of Investigation, Terrorist Screening Center, Transportation Security Administration re 263 Order United States' Statement of Privilege Concerning Documents Subject to Plaintiff's Motion to Compel and Rule 45 Subpoenas (Farel, Lily) (Filed on 11/20/2009) (Entered: 11/20/2009)
266 Declaration of Tracey North in Support of 265 Notice (Other), Notice (Other) filed byDepartment of Homeland Security, Department of State, Federal Bureau of Investigation, Terrorist Screening Center, Transportation Security Administration. (Related document(s) 265 ) (Farel, Lily) (Filed on 11/20/2009) (Entered: 11/20/2009)
267 FILED UNDER SEAL Declaration of Arthur M. Cummings II filed byMichael Chertoff, Department of Homeland Security, Tom Ridge. (sis, COURT STAFF) (Filed on 11/20/2009) (Entered: 11/23/2009)
268 DECLARATION of FBI Executive Director Arthur E. Cummings in Opposition to 267 Declaration in Support, 258 Order Public Synopsis of Declaration filed byDepartment of Homeland Security, Federal Bureau of Investigation, Terrorist Screening Center. (Related document(s) 267 , 258 ) (Freeborne, Paul) (Filed on 11/23/2009) (Entered: 11/23/2009)
269 Reply Memorandum in Support of Motion for Order Authorizing Disclosures by San Francisco Defendants [Doc. # 238] filed byCity and County of San Francisco. (Keith, Peter) (Filed on 11/25/2009) (Entered: 11/25/2009)
270 Declaration of Peter J. Keith in Support of 269 Reply Memorandum Declaration of Peter J. Keith Filed with Reply Brief in Support of San Francisco Defendants' Motion for Order Authorizing Disclosures filed byCity and County of San Francisco. (Related

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document(s) 269 ) (Keith, Peter) (Filed on 11/25/2009) (Entered: 11/25/2009)
271 Memorandum in Opposition 250 Plaintiffs Opposition to (1) Federal Defendants Administrative Motion to File Under Seal and In Camera Attachment A to Non-Parties Opposition to San Francisco Defendants Motion to Authorize Disclosure; (2) Submission of Privilege Over Protected Material San Francisco Defendants Seek to Disclose; and (3) Non-Parties Public Synopsis of Declaration of Federal Bureau of Investigation Executive Assistant Director Arthur E. Cummings in Support of Assertion of Law Enforcement Privilege filed byRahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 11/30/2009) Modified on 12/1/2009 (sis, COURT STAFF). (Entered: 11/30/2009)
272 RESPONSE in Support Plaintiffs Response to Statement of Privilege Concerning Documents Subject to Plaintiffs Motion to Compel and Rule 45 Subpoenas as Served Upon Non-Party Government Agencies filed byRahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 11/30/2009) (Entered: 11/30/2009)
273 Declaration of Elizabeth Pipkin in Support of Plaintiffs Response to Statement of Privilege Concerning Documents Subject to Plaintiffs Motion to Compel and Rule 45 Subpoenas as Served Upon Non-Party Government Agencies filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A - D)(Pipkin, Elizabeth) (Filed on 11/30/2009) (Entered: 11/30/2009)
274 Declaration of Ruby H. Kazi in Support of Plaintiffs Response to Statement of Privilege Concerning Documents Subject to Plaintiffs Motion to Compel and Rule 45 Subpoenas as Served Upon Non-Party Government Agencies filed byRahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 11/30/2009) (Entered: 11/30/2009)
275 OBJECTIONS to Evidence and Motion to Strike Declaration of Tracey A. North by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 11/30/2009) (Entered: 11/30/2009)
276 RESPONSE to Pending Discovery Disputes by John Bondanella and USIS by John Bondanella, US Investigations Services, Inc.. (Mayo, Sharon) (Filed on 11/30/2009) (Entered: 11/30/2009)
277 MOTION to Seal Document 265 Notice (Other), Notice (Other), 263 Order Non-Parties' Administrative Motion to File Under Seal An Ex Parte, In Camera Classified Declaration in Support of the Assertion of the Law Enforcement Privilege filed by Department of Homeland Security, Federal Bureau of Investigation, Terrorist Screening Center. (Attachments: # 1 Proposed Order)(Freeborne, Paul) (Filed on 12/2/2009) (Entered: 12/02/2009)

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278 ORDER DENYING NON-PARTIES' SECOND ADMINISTRATIVE MOTION TO FILE UNDER SEAL AN EX PARTE, IN CAMERA CLASSIFIED DECLARATION IN SUPPORT OF THE ASSERTION OF LAW ENFORCEMENT PRIVILEGE [re 277 MOTION to Seal Document 265 Notice (Other), Notice (Other), 263 Order Non-Parties' Administrative Motion to File Under Seal An Ex Parte, In Camera Classified Declaration in Support of the Assertion of the Law Enforcement Privilege MOTION to Seal Document 265 Notice (Other), Notice (Other), 263 Order Non-Parties' Administrative Motion to File Under Seal An Ex Parte, In Camera Classified Declaration in Support of the Assertion of the Law Enforcement Privilege filed by Department of Homeland Security, Terrorist Screening Center, Federal Bureau of Investigation]. Signed by Judge William Alsup on 12/2/2009. (whasec, COURT STAFF) (Filed on 12/2/2009) (Entered: 12/02/2009)
279 Memorandum in Opposition 266 to Plaintiff's Objections to Evidence and Motion to Strike Declaration of Tracey A. North filed by Federal Bureau of Investigation. (Farel, Lily) (Filed on 12/4/2009) Modified on 12/7/2009 (sis, COURT STAFF). (Entered: 12/04/2009)
280 Minute Entry: Discovery Hearing held on 12/7/2009 before William Alsup (Date Filed: 12/7/2009). Federal Non-Parties' Request for Clarification - submitted. (Court Reporter Lydia Zinn.) (dt, COURT STAFF) (Date Filed: 12/7/2009) (Entered: 12/07/2009)
281 NOTICE by Department of Homeland Security, Federal Bureau of Investigation, Terrorist Screening Center, Transportation Security Administration re 280 Discovery Hearing (Freeborne, Paul) (Filed on 12/9/2009) (Entered: 12/09/2009)
282 Statement re 280 Discovery Hearing JOINT STATEMENT OF SAN FRANCISCO DEFENDANTS, PLAINTIFF RAHINAH IBRAHIM, AND DEFENDANTS JOHN BONDANELLA AND USIS AFTER DISCOVERY HEARING by City and County of San Francisco, John Cunningham, Elizabeth Maron, Richard Pate, San Francisco Airport, San Francisco Police Department. (Keith, Peter) (Filed on 12/11/2009) (Entered: 12/11/2009)
283 Statement re 282 Statement, Supplement to Joint Statement of San Francisco Defendants, Plaintiff Rahinah Ibrahim, and Defendants John Bondanella and USIS After Discovery Hearing by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 12/11/2009) (Entered: 12/11/2009)
284 Transcript of Proceedings held on 12/07/2009, before Judge William H. Alsup. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531-6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may

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be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 3/11/2010. (Zinn, Lydia) (Filed on 12/14/2009) (Entered: 12/14/2009)
285 ORDER FOR PRODUCTION OF ITEMS DESPITE THE ASSERTION OF VARIOUS PRIVILEGES [re 238 Brief, filed by City and County of San Francisco, 250 MOTION to Seal and for in camera review filed by Transportation Security Administration, Federal Bureau of Investigation, 236 Settlement Conference, Set Hearings, 275 Objection filed by Rahinah Ibrahim, 231 MOTION to Compel Production of Documents and Answers to Interrogatories as to the Federal Defendants; Request for Continuance of Fact Discovery Cutoff and Expert Disclosure Deadline filed by Rahinah Ibrahim]. Signed by Judge William Alsup on 12/17/2009. (whasec, COURT STAFF) (Filed on 12/17/2009) (Entered: 12/17/2009)
286 Minute Entry: Settlement Conference (Date Filed: 12/21/2009). Parties unable to settle. () (mejlc1, COURT STAFF) (Date Filed: 12/21/2009) (Entered: 12/21/2009)
287 NOTICE by City and County of San Francisco, John Cunningham, Elizabeth Maron, Richard Pate re 285 Order,, SAN FRANCISCO DEFENDANTS' REQUEST FOR CLARIFICATION OF THE COURT'S DECEMBER 17, 2009 ORDER (Keith, Peter) (Filed on 12/24/2009) (Entered: 12/24/2009)
288 CLARIFICATION OF ORDER DATED DECEMBER 17, 2009 [re 287 Notice (Other), Notice (Other) filed by John Cunningham, Elizabeth Maron, Richard Pate, City and County of San Francisco]. Signed by Judge William Alsup on 12/24/2009. (whasec, COURT STAFF) (Filed on 12/24/2009) (Entered: 12/24/2009)
289 Statement Acknowledgment of Duty Regarding Sensitive Security Information Pursuant to the Court's December 17, 2009 Order by Christine Peek by Rahinah Ibrahim. (Peek, Christine) (Filed on 12/30/2009) (Entered: 12/30/2009)
290 Statement Acknowledgment of Duty Regarding Sensitive Security Information Pursuant to the Court's December 17, 2009 Order by James McManis by Rahinah Ibrahim. (Peek, Christine) (Filed on 12/30/2009) (Entered: 12/30/2009)
291 Statement Acknowledgment of Duty Regarding Sensitive Security Information Pursuant to the Court's December 17, 2009 Order by Marwa Elzankaly by Rahinah Ibrahim. (Peek, Christine) (Filed on 12/30/2009) (Entered: 12/30/2009)

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12/31/2009 12/31/2009

292 Statement Acknowledgment of Duty Regarding Sensitive Security Information Pursuant to the Court's December 17, 2009 Order by Neda Shakoori by Rahinah Ibrahim. (Peek, Christine) (Filed on 12/30/2009) (Entered: 12/30/2009)
293 Statement Acknowledgment of Duty Regarding Sensitive Security Information Pursuant to the Court's December 17, 2009 Order by Rahinah Ibrahim by Rahinah Ibrahim. (Peek, Christine) (Filed on 12/30/2009) (Entered: 12/30/2009)
294 Statement Acknowledgment of Duty Regarding Sensitive Security Information Pursuant to the Court's December 17, 2009 Order by Saba Shakoori by Rahinah Ibrahim. (Peek, Christine) (Filed on 12/30/2009) (Entered: 12/30/2009)
295 Statement Acknowledgment of Duty Regarding Sensitive Security Information Pursuant to the Court's December 17, 2009 Order by Elizabeth Pipkin by Rahinah Ibrahim. (Peek, Christine) (Filed on 12/30/2009) (Entered: 12/30/2009)
296 Statement Acknowledgment of Duty Regarding Sensitive Security Information Pursuant to the Court's December 17, 2009 Order by Ruby Kazi by Rahinah Ibrahim. (Peek, Christine) (Filed on 12/30/2009) (Entered: 12/30/2009)
297 Proposed Order Setting Case Management Conference and Vacating Schedule Set By The Court's November 12, 2009 Order by Rahinah Ibrahim. (Peek, Christine) (Filed on 12/30/2009) (Entered: 12/30/2009)
298 NOTICE by Rahinah Ibrahim Notice of Filing of [Proposed] Stipulated Protective Order Regarding Sensitive Security Information (Peek, Christine) (Filed on 12/30/2009) (Entered: 12/30/2009)
299 Proposed Order [Proposed] Stipulated Protective Order Regarding Sensitive Security Information by Rahinah Ibrahim. (Peek, Christine) (Filed on 12/30/2009) (Entered: 12/30/2009)
300 Statement re 285 Order,, SAN FRANCISCO DEFENDANTS' COUNSEL'S ACKNOWLEDGMENT OF DUTY TO MAINTAIN CONFIDENTIALITY OF SSI PURSUANT TO DECEMBER 17, 2009 ORDER by City and County of San Francisco, John Cunningham, Elizabeth Maron, Richard Pate. (Keith, Peter) (Filed on 12/31/2009) (Entered: 12/31/2009)
301 Statement of Acknowledgement of Duty Regarding Sensitive Security Information by John Bondanella, US Investigations Services, Inc.. (Mayo, Sharon) (Filed on 12/31/2009) (Entered: 12/31/2009)
302 Ex Parte MOTION for Extension of Time to Complete Discovery Motion for Extension of Time for Experts and Consultants to Apply for SSI

12/31/2009
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Clearance filed by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 12/31/2009) (Entered: 12/31/2009)
303 Declaration of Christine Peek in Support of 302 Ex Parte MOTION for Extension of Time to Complete Discovery Motion for Extension of Time for Experts and Consultants to Apply for SSI Clearance filed byRahinah Ibrahim. (Attachments: # 1 Exhibit Exhibits A-D to Peek Decl.)(Related document(s) 302 ) (Pipkin, Elizabeth) (Filed on 12/31/2009) (Entered: 12/31/2009)
304 Proposed Order re 302 Ex Parte MOTION for Extension of Time to Complete Discovery Motion for Extension of Time for Experts and Consultants to Apply for SSI Clearance by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 12/31/2009) (Entered: 12/31/2009)
305 CASE MANAGEMENT SCHEDULING ORDER: ORDER SCHEDULING CMC AND VACATING NOVEMBER 12 SCHEDULING ORDER Case Management Statement due by 4/8/2010. Case Management Conference set for 4/15/2010 11:00 AM in Courtroom 9, 19th Floor, San Francisco.. Signed by Judge Alsup on Decemeber 31, 2009. (whalc1, COURT STAFF) (Filed on 12/31/2009) (Entered: 12/31/2009)
306 ORDER REGARDING PROPOSED STIPULATED PROTECTIVE ORDER AND MOTION TO EXTEND APPLICATION DEADLINE by Judge Alsup denying 302 Motion for Extension of Time to Complete Discovery (whalc1, COURT STAFF) (Filed on 12/31/2009) (Entered: 12/31/2009)
307 ORDER REGARDING SECURITY SCREENING OF COURT PERSONNEL. Signed by Judge Alsup on January 6, 2010. (whalc1, COURT STAFF) (Filed on 1/6/2010) (Entered: 01/06/2010)
308 Proposed Order [Proposed] Protective Order Regarding Sensitive Security Information by Rahinah Ibrahim. (Peek, Christine) (Filed on 1/7/2010) (Entered: 01/07/2010)
309 OBJECTIONS to [Proposed] Protective Order Regarding Sensitive Security Information by Rahinah Ibrahim. (Peek, Christine) (Filed on 1/7/2010) (Entered: 01/07/2010)
310 OBJECTIONS to re 308 Proposed Order Regarding Sensitive Security Information by Department of Homeland Security, Federal Bureau of Investigation, Terrorist Screening Center, Transportation Security Administration. (Farel, Lily) (Filed on 1/7/2010) (Entered: 01/07/2010)
311 ORDER REGARDING OBJECTIONS TO PROPOSED PROTECTIVE ORDER. Signed by Judge Alsup on January 8, 2010. (whalc1, COURT STAFF) (Filed on 1/8/2010) (Entered: 01/08/2010)

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02/11/2010
02/12/2010 02/12/2010

312 PROTECTIVE ORDER REGARDING SENSITIVE SECURITY INFORMATION. Signed by Judge Alsup on January 13, 2010. (whalc1, COURT STAFF) (Filed on 1/13/2010) (Entered: 01/13/2010)
313 ORDER of USCA- Appellee's Motion to Dismiss for Lack of Jurisdiction is granted as to 210 Notice of Appeal filed by Rahinah Ibrahim (sis, COURT STAFF) (Filed on 1/29/2010) USCA No. 09-17160 Modified on 5/6/2010 (wsn, COURT STAFF). (Entered: 02/02/2010)
314 ***ERRONEOUS ENTRY - SEE DOC. #315*** NOTICE by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center, Transportation Security Administration Notice of Appeal (Attachments: # 1 Representation Statement, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Farel, Lily) (Filed on 2/11/2010) Modified on 2/12/2010 (sis, COURT STAFF). (Entered: 02/11/2010)
315 NOTICE OF APPEAL (fee waived) as to 311 Order, 288 Order, 306 Order on Motion for Extension of Time to Complete Discovery, 312 Protective Order, 285 Order,, 263 Order by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Representation Statement)(sis, COURT STAFF) (Filed on 2/11/2010) (Entered: 02/12/2010)
316 Transmission of Notice of Appeal to US Court of Appeals by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center re 315 Notice of Appeal,, (Attachments: # 1 Transmittal Form)(sis, COURT STAFF) (Filed on 2/12/2010) (Entered: 02/12/2010)
317 NOTICE OF APPEAL as to 311 Order, 285 Order,, 288 Order, 306 Order on Motion for Extension of Time to Complete Discovery, 312 Protective Order by Rahinah Ibrahim. (Attachments: # 1 Representation Statement, # 2 Docketing Statement)(sis, COURT STAFF) (Filed on 2/12/2010) (Entered: 02/16/2010)

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02/26/2010
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318 Mailed request for payment of docket fee to appellant (cc to USCA) (sis, COURT STAFF) (Filed on 2/16/2010) (Entered: 02/16/2010)
319 Transmission of Notice of Appeal and Transmittal Form to US Court of Appeals by Rahinah Ibrahim re 317 Notice of Appeal, (Attachments: # 1 Transmittal Form)(sis, COURT STAFF) (Filed on 2/16/2010) (Entered: 02/16/2010)
320 USCA Appeal Fees received $ 455 receipt number 34611042469 re 317 Notice of Appeal, filed by Rahinah Ibrahim (sis, COURT STAFF) (Filed on 2/17/2010) (Entered: 02/18/2010)
321 USCA Case Number 10-15352 Ninth Circuit for 317 Notice of Appeal, filed by Rahinah Ibrahim. (sis, COURT STAFF) (Filed on 2/19/2010) (Entered: 02/23/2010)
322 NOTICE of Appearance by Conor Kells (Kells, Conor) (Filed on 2/26/2010) (Entered: 02/26/2010)
323 MOTION to Substitute Party filed by UNITED STATES OF AMERICA. Motion Hearing set for 4/15/2010 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1 Memorandum in Support, # 2 Exhibit Certification, # 3 Proposed Order)(Kells, Conor) (Filed on 2/26/2010) (Entered: 02/26/2010)
324 MOTION to Dismiss for Lack of Jurisdiction filed by UNITED STATES OF AMERICA. Motion Hearing set for 4/15/2010 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1 Memorandum in Support, # 2 Exhibit O'Neill Declaration, # 3 Exhibit Kane Declaration, # 4 Proposed Order)(Kells, Conor) (Filed on 2/26/2010) (Entered: 02/26/2010)
325 NOTICE by Rahinah Ibrahim Notice of Plaintiff's Acceptance of Offer to Compromise (Attachments: # 1 Exhibit A, # 2 Proof of Service)(Elzankaly, Marwa) (Filed on 3/11/2010) (Entered: 03/11/2010)
326 ORDER REGARDING RULE 68 OFFER OF JUDGMENT. Signed by Judge Alsup on March 11, 2010. (whalc1, COURT STAFF) (Filed on 3/11/2010) (Entered: 03/11/2010)
327 STIPULATION for Entry of Judgment; Proposed Judgment by Rahinah Ibrahim. (Elzankaly, Marwa) (Filed on 3/15/2010) (Entered: 03/15/2010)
328 STIPULATION FOR ENTRY OF JUDGMENT AND JUDGMENT PURSUANT TO RULE 68. Signed by Judge Alsup on March 15, 2010. (whalc1, COURT STAFF) (Filed on 3/15/2010) (Entered: 03/15/2010)
***Civil Case Terminated. Signed by Judge William Alsup on 03/15/2010. (wsn, COURT STAFF) (Filed on 3/15/2010) (Entered: 03/15/2010)

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06/21/2010

329 EXHIBITS re 327 Stipulation Exhibits A & B to Stipulation for Entry of Judgment filed byRahinah Ibrahim. (Related document(s) 327 ) (Elzankaly, Marwa) (Filed on 3/16/2010) (Entered: 03/16/2010)
330 ERRATA Notice of Errata by Rahinah Ibrahim. (Attachments: # 1 Stipulation for Entry of Judgment with Exhibits A & B)(Elzankaly, Marwa) (Filed on 3/16/2010) (Entered: 03/16/2010)
331 SATISFACTION OF JUDGMENT Acknowledgement of Satisfaction of Judgment Against US Investigations Services, Inc. by Rahinah Ibrahim. (Elzankaly, Marwa) (Filed on 4/13/2010) (Entered: 04/13/2010)
332 NOTICE OF APPEAL as to 328 Judgment by Rahinah Ibrahim. Filing fee $ 455, receipt 34611044751. USCA Appeal Case No. 1015873 (Attachments: # 1 Exhibit, # 2 Representation Statement)(wsn, COURT STAFF) (Filed on 4/15/2010) Modified on 4/22/2010 (wsn, COURT STAFF). (Entered: 04/15/2010)
333 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 332 Notice of Appeal (Attachments: # 1 Transmittal)(wsn, COURT STAFF) (Filed on 4/15/2010) (Entered: 04/15/2010)
334 USCA Case Number 10-15873 U.S. Court of Appeals for the Ninth Circuit for 332 Notice of Appeal filed by Rahinah Ibrahim. (wsn, COURT STAFF) (Filed on 4/21/2010) (Entered: 04/22/2010)
335 MANDATE of USCA - The judgment of this Court, entered January 21, 2010, takes effect this date; as to 210 Notice of Appeal filed by Rahinah Ibrahim USCA No. 09-17160 (wsn, COURT STAFF) (Filed on 5/6/2010). (Entered: 05/06/2010)
336 CLERKS Letter Spreading Mandate to Counsel (wsn, COURT STAFF) (Filed on 5/6/2010) (Entered: 05/06/2010)
337 SATISFACTION OF JUDGMENT Acknowledgement of Satisfaction of Judgment Against City and County of San Francisco, James F. Cunningham, Elizabeth A. Maron and Richard E. Pate by Rahinah Ibrahim. (Elzankaly, Marwa) (Filed on 5/10/2010) (Entered: 05/10/2010)
338 TRANSCRIPT DESIGNATION Transcript Designation and Ordering Form by Rahinah Ibrahim for proceedings held on July 16, 2009; November 6, 2009; December 7, 2009 before Judge Honorable William H. Alsup.. (Elzankaly, Marwa) (Filed on 5/17/2010) (Entered: 05/17/2010)
339 Transcript of Proceedings held on November 6, 2009, before Judge William H. Alsup. Court Reporter/Transcriber Belle Ball, CSR, RMR, CRR, Telephone number (415)373-2529, belle_ball@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be

06/22/2010 07/23/2010 11/17/2010
11/17/2010 12/20/2010

purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 9/20/2010. (Ball, Belle) (Filed on 6/21/2010) (Entered: 06/21/2010)
340 Certificate of Record forwarded to USCA re appeal 332 Notice of Appeal. USCA Nos. 10-15873, 10-15352 (wsn, COURT STAFF) (Filed on 6/22/2010) (Entered: 06/22/2010)
341 ORDER of USCA - The federal government defendants' motion to dismiss these appeals as moot is denied without prejudice. Ibrahim's motion to consolidate these appeals is denied; as to 332 Notice of Appeal USCA No. 10-15873, filed by Rahinah Ibrahim, 317 Notice of Appeal USCA No. 10-15352, filed by Rahinah Ibrahim (wsn, COURT STAFF) (Filed on 7/23/2010). (Entered: 07/26/2010)
342 ORDER of USCA - Appellants/cross-appellees' motion to reconsider the appellate commissioner's July 15, 2010 order is granted. Appellants/cross-appellees' motion to dismiss these appeals as moot is granted. All pending motions are denied as moot. DISMISSED as to 315 Notice of Appeal, filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Arthur M. Cummings, II, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael Chertoff, Department of Homeland Security, Terrorist Screening Center, Leonard C. Boyle, Robert Mueller, Donna A. Bucella, 317 Notice of Appeal, filed by Rahinah Ibrahim. USCA Case Nos. 10-15342 & 10-15352 (wsn, COURT STAFF) (Filed on 11/17/2010) Modified on 11/18/2010 (wsn, COURT STAFF). (Entered: 11/17/2010)
343 ORDER of USCA - Appellees' motion to reconsider the appellate commissioner's July 15, 2010 order is denied. Appellees' motion to stay the briefing is denied as moot. Appellant's motion to take judicial notice is referred to the panel that will hear the merits of this appeal; as to 332 Notice of Appeal, filed by Rahinah Ibrahim. USCA No. 1015873 (wsn, COURT STAFF) (Filed on 11/17/2010) (Entered: 11/17/2010)
344 ORDER of USCA - Appellants/cross-appellees' motion to clarify the court's October 15, 2010 order is granted and we vacate the district court's discovery orders which are the subject of these appeals. DISMISSED; as to 315 Notice of Appeal, filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Arthur M. Cummings, II, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael Chertoff, Department of Homeland Security, Terrorist Screening Center, Leonard C. Boyle, Robert Mueller, Donna A.

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Bucella, 317 Notice of Appeal, filed by Rahinah Ibrahim. USCA Case Nos. 10-15342 & 10-15352. (wsn, COURT STAFF) (Filed on 12/20/2010). (Entered: 12/20/2010)
345 MANDATE of USCA; The judgment of this Court, entered October 15, 2010, takes effect this date - as to 315 Notice of Appeal, filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Arthur M. Cummings, II, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael Chertoff, Department of Homeland Security, Terrorist Screening Center, Leonard C. Boyle, Robert Mueller, Donna A. Bucella, 317 Notice of Appeal, filed by Rahinah Ibrahim. USCA Case Nos. 10-15342 & 10-15352 (wsn, COURT STAFF) (Filed on 1/3/2011) (Entered: 01/04/2011)
346 CLERKS Letter Spreading Mandate to Counsel. USCA Case Nos. 1015342 & 10-15352. (wsn, COURT STAFF) (Filed on 1/4/2011) (Entered: 01/04/2011)
347 USCA Opinion as to 332 Notice of Appeal, filed by Rahinah Ibrahim. We REVERSE in part, AFFIRM in part, and VACATE in part. We REMAND for further proceedings consistent with this opinion. USCA No. 10-15873 (wsn, COURT STAFF) (Filed on 2/9/2012) (Entered: 02/09/2012)
348 BILL OF COSTS by Rahinah Ibrahim. (Elzankaly, Marwa) (Filed on 2/22/2012) (Entered: 02/22/2012)
349 OBJECTIONS to re 348 Bill of Costs by Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, John Cunningham, Department of Homeland Security, Department of State, Federal Aviation Administration, Federal Bureau of Investigation, Kip Hawley, Eric H. Holder, Jr, Robert Mueller, Janet Napolitano, National Counterterrorism Center, David Nevins, Tom Ridge, Terrorist Screening Center, Transportation Security Administration, Transportation Security Intelligence Services, Transportation Security Operations Center, UNITED STATES OF AMERICA. (Freeborne, Paul) (Filed on 3/5/2012) (Entered: 03/05/2012)
350 RESPONSE to FEDERAL DEFNDANTS OBJECTIONS TO PLAINTIFFS BILL OF COSTS by Rahinah Ibrahim. (Elzankaly, Marwa) (Filed on 3/8/2012) (Entered: 03/08/2012)
351 ORDER DENYING BILL OF COSTS [re 348 Bill of Costs filed by Rahinah Ibrahim]. Signed by Judge William Alsup on 3/21/2012. (whasec, COURT STAFF) (Filed on 3/21/2012) (Entered: 03/21/2012)
352 ORDER of USCA as to 332 Notice of Appeal, filed by Rahinah Ibrahim. The Government's second motion to extend time to file a petition for rehearing, filed April 17, 2012, is denied as moot. The Government's

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08/15/2012

petition for panel rehearing and petition for rehearing en banc, received April 25, 2012, is ordered as FILED. USCA No. 10-15873. (wsn, COURT STAFF) (Filed on 5/1/2012) (Entered: 05/04/2012)
353 ORDER of USCA as to 332 Notice of Appeal, filed by Rahinah Ibrahim. Appellant is directed to file a response to Appellees' Petition for Rehearing and Rehearing En Banc filed with this court on April 25, 2012. The response shall not exceed fifteen pages for 4200 words, and shall be filed within 21 days of the date of this order. USCA No. 1015873. (wsn, COURT STAFF) (Filed on 5/1/2012) (Entered: 05/04/2012)
354 ORDER of USCA Denying Petition for Rehearing as to 332 Notice of Appeal, filed by Rahinah Ibrahim (dtm, COURT STAFF) (Filed on 7/11/2012) (Entered: 07/11/2012)
355 Costs Taxed in amount of $ 437.60 against Dept of Homeland Security. (dtm, COURT STAFF) (Filed on 7/17/2012) (Entered: 07/18/2012)
356 MANDATE of USCA as to 332 Notice of Appeal, filed by Rahinah Ibrahim (dtm, COURT STAFF) (Filed on 8/1/2012) (Entered: 08/01/2012)
357 CLERKS Letter Spreading Mandate to Counsel (dtm, COURT STAFF) (Filed on 8/1/2012) (Entered: 08/01/2012)
358 CLERKS NOTICE Scheduling CMC on Remand. Case Management Statement due by 8/30/2012. Case Management Conference set for 9/6/2012 11:00 AM in Courtroom 8, 19th Floor, San Francisco. (dt, COURT STAFF) (Filed on 8/3/2012) (Entered: 08/03/2012)
359 SUPPLEMENTAL ORDER TO ORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE re 358 Clerks Notice. Signed by Judge William Alsup on 7/26/12. (dt, COURT STAFF) (Filed on 8/3/2012) (Entered: 08/03/2012)
360 MOTION to Continue Case Management Conference filed by Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Declaration of Lily Farel, # 2 Proposed Order)(Farel, Lily) (Filed on 8/10/2012) (Entered: 08/10/2012)
361 REPLY (re 360 MOTION to Continue Case Management Conference ) Statement of Non-Opposition to Motion to Continue Case Management Conference filed byRahinah Ibrahim. (Peek, Christine) (Filed on 8/15/2012) (Entered: 08/15/2012)

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362 ORDER RESCHEDULING CASE MANAGEMENT CONFERENCE by Hon. William Alsup granting 360 Motion to Continue.(whalc1, COURT STAFF) (Filed on 8/20/2012) (Entered: 08/20/2012)
Set/Reset Hearing re 362 Order on Motion to Continue Case Management Conference set for 10/11/2012 11:00 AM in Courtroom 8, 19th Floor, San Francisco. (whalc1, COURT STAFF) (Filed on 8/20/2012) (Entered: 08/20/2012)
363 JOINT CASE MANAGEMENT STATEMENT filed by Rahinah Ibrahim. (Peek, Christine) (Filed on 10/4/2012) (Entered: 10/04/2012)
364 CLERKS NOTICE Rescheduling Hearing. Case Management Conference set for 10/11/2012 02:30 PM in Courtroom 8, 19th Floor, San Francisco. (dtS, COURT STAFF) (Filed on 10/5/2012) (Entered: 10/05/2012)
365 CASE MANAGEMENT ORDER ON REMAND. Signed by Judge Alsup on October 11, 2012. (whalc1, COURT STAFF) (Filed on 10/11/2012) (Entered: 10/11/2012)
366 ***FILED IN ERROR. PLEASE SEE # 367 *** Minute Entry: Initial Case Management Conference held on 10/11/2012 before Judge William Alsup (Date Filed: 10/11/2012). Further Case Management Conference set for 11/8/2012 11:00 AM in Courtroom 8, 19th Floor, San Francisco. (Court Reporter Joan Columbini.) (dt, COURT STAFF) (Date Filed: 10/11/2012) Modified on 10/12/2012 (dt, COURT STAFF). (Entered: 10/12/2012)
367 Minute Entry: Initial Case Management Conference held on 10/11/2012 before Judge William Alsup (Date Filed: 10/11/2012). (Court Reporter Joan Columbini.) (dt, COURT STAFF) (Date Filed: 10/11/2012) (Entered: 10/12/2012)
CASE REFERRED to Magistrate Judge Magistrate Judge Jacqueline Scott Corley for Settlement (rmm2S, COURT STAFF) (Filed on 10/15/2012) (Entered: 10/15/2012)
368 NOTICE of Appearance by John Kenneth Theis (Theis, John) (Filed on 10/16/2012) (Entered: 10/16/2012)
369 MOTION for Extension of Time to File Motion to Dismiss filed by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Declaration, # 2 Proposed Order)(Theis, John) (Filed on 10/29/2012) (Entered: 10/29/2012)

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370 ORDER GRANTING ADMINISTRATIVE EXTENSION by Hon. William Alsup granting 369 Motion for Extension of Time to File.(whalc1, COURT STAFF) (Filed on 10/30/2012) (Entered: 10/30/2012)
371 CASE MANAGEMENT STATEMENT Supplemental filed by Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Kip Hawley, Eric H. Holder, Jr, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center, UNITED STATES OF AMERICA. (Freeborne, Paul) (Filed on 11/1/2012) (Entered: 11/01/2012)
372 REQUEST FOR BRIEFING MEMORANDA. Signed by Judge Alsup on November 7, 2012. (whalc1, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
373 MOTION to Dismiss Complaint (Redacted) filed by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. Motion Hearing set for 12/20/2012 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 11/21/2012. Replies due by 11/28/2012. (Attachments: # 1 Exhibit A (Letter), # 2 Exhibit B (Cruse Declaration 1), # 3 Exhibit C (Cruse Declaration 2), # 4 Exhibit D (Cooper Declaration), # 5 Proposed Order)(Theis, John) (Filed on 11/7/2012) (Entered: 11/07/2012)
374 NOTICE of Lodging in Camera Declarations, by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center (Theis, John) (Filed on 11/7/2012) Modified on 11/8/2012 (dtmS, COURT STAFF). (Entered: 11/07/2012)
375 Discovery Letter Brief Requesting Stay of Discovery Pending Resolution of Defendants' Motion to Dismiss filed by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Theis, John) (Filed on 11/7/2012) (Entered: 11/07/2012)

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11/20/2012 11/20/2012
11/21/2012

376 *** FILED IN ERROR, IGNORE AND SEE 377 *** Signed by Judge Alsup on November 8, 2012. (whalc1, COURT STAFF) (Filed on 11/8/2012) Modified on 11/8/2012 (whalc1, COURT STAFF). (Entered: 11/08/2012)
377 ORDER SETTING BRIEFING SCHEDULE RE EX PARTE DISCLOSURES. Signed by Judge Alsup on November 8, 2012. (whalc1, COURT STAFF) (Filed on 11/8/2012) (Entered: 11/08/2012)
379 Minute Entry: Further Case Management Conference held on 11/8/2012 before Judge William Alsup (Date Filed: 11/8/2012). (Court Reporter Lydia Zinn.) (dt, COURT STAFF) (Date Filed: 11/8/2012) (Entered: 11/16/2012)
378 Transcript of Proceedings held on 11/08/2012, before Judge William H. Alsup. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531-6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 2/7/2013. (Zinn, Lydia) (Filed on 11/9/2012) (Entered: 11/09/2012)
380 RESPONSE to re 372 Order Requesting Briefing Memoranda by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Exhibit)(Theis, John) (Filed on 11/20/2012) (Entered: 11/20/2012)
381 ORDER REQUESTING RESPONSE [re 375 Discovery Letter Brief Requesting Stay of Discovery Pending Resolution of Defendants' Motion to Dismiss filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Arthur M. Cummings, II, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Department of Homeland Security, Terrorist Screening Center, Leonard C. Boyle, Robert Mueller, Donna A. Bucella] Response due by noon on 12/3/2012. Discovery Hearing set for 12/20/2012 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Signed by Judge William Alsup on 11/20/2012. (whasec, COURT STAFF) (Filed on 11/20/2012) (Entered: 11/20/2012)
382 RESPONSE (re 373 MOTION to Dismiss Complaint (Redacted) ) Memorandum of Points and Authorities in Opposition to Federal Defendants' Motion to Dismiss filed byRahinah Ibrahim. (Peek, Christine) (Filed on 11/21/2012) (Entered: 11/21/2012)

11/21/2012 11/21/2012 11/21/2012 11/21/2012 11/21/2012 11/21/2012
11/21/2012

383 DECLARATION of Christine Peek Declaration of Christine Peek in Opposition to Federal Defendants' Motion to Dismiss and in Opposition to Federal Defendants' Request That This Court Consider Secret Evidence and Legal Argument (Exhibits A-E) filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Peek, Christine) (Filed on 11/21/2012) (Entered: 11/21/2012)
384 DECLARATION of Christine Peek Declaration of Christine Peek in Opposition to Federal Defendants' Motion to Dismiss and in Opposition to Federal Defendants' Request That This Court Consider Secret Evidence and Legal Argument (Exhibits F-G) filed byRahinah Ibrahim. (Attachments: # 1 Exhibit F, # 2 Exhibit G)(Peek, Christine) (Filed on 11/21/2012) (Entered: 11/21/2012)
385 DECLARATION of Christine Peek Declaration of Christine Peek in Opposition to Federal Defendants' Motion to Dismiss and in Opposition to Federal Defendants' Request That This Court Consider Secret Evidence and Legal Argument (Exhibits H-I) filed byRahinah Ibrahim. (Attachments: # 1 Exhibit H, # 2 Exhibit I)(Peek, Christine) (Filed on 11/21/2012) (Entered: 11/21/2012)
386 DECLARATION of Christine Peek Declaration of Christine Peek in Opposition to Federal Defendants' Motion to Dismiss and in Opposition to Federal Defendants' Request That This Court Consider Secret Evidence and Legal Argument (Exhibits J) filed byRahinah Ibrahim. (Attachments: # 1 Exhibit J)(Peek, Christine) (Filed on 11/21/2012) (Entered: 11/21/2012)
387 DECLARATION of Christine Peek Declaration of Christine Peek in Opposition to Federal Defendants' Motion to Dismiss and in Opposition to Federal Defendants' Request That This Court Consider Secret Evidence and Legal Argument (Exhibits K) filed byRahinah Ibrahim. (Attachments: # 1 Exhibit K)(Peek, Christine) (Filed on 11/21/2012) (Entered: 11/21/2012)
388 DECLARATION of Christine Peek Declaration of Christine Peek in Opposition to Federal Defendants' Motion to Dismiss and in Opposition to Federal Defendants' Request That This Court Consider Secret Evidence and Legal Argument (Exhibits L-AA) filed byRahinah Ibrahim. (Attachments: # 1 Exhibit L, # 2 Exhibit M, # 3 Exhibit N, # 4 Exhibit O, # 5 Exhibit P, # 6 Exhibit Q, # 7 Exhibit R, # 8 Exhibit S, # 9 Exhibit T, # 10 Exhibit U, # 11 Exhibit V, # 12 Exhibit W, # 13 Exhibit X, # 14 Exhibit Y, # 15 Exhibit Z, # 16 Exhibit AA)(Peek, Christine) (Filed on 11/21/2012) (Entered: 11/21/2012)
389 DECLARATION of Rahinah Ibrahim Declaration of Rahinah Ibrahim in Opposition to Federal Defendants' Motion to Dismiss and in Support of Plaintiff's Response to this Court's Request for Briefing Memoranda filed

11/21/2012
11/21/2012 11/21/2012
11/28/2012
12/03/2012 12/04/2012 12/11/2012

byRahinah Ibrahim. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Peek, Christine) (Filed on 11/21/2012) (Entered: 11/21/2012)
390 Request for Judicial Notice Plaintiff's Request for Judicial Notice in Opposition to the Federal Defendants' Motion to Dismiss and in Opposition to Federal Defendants' Request That This Court Consider Secret Evidence and Legal Argument (Exhibits A-K) filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Peek, Christine) (Filed on 11/21/2012) (Entered: 11/21/2012)
391 Request for Judicial Notice Plaintiff's Request for Judicial Notice in Opposition to the Federal Defendants' Motion to Dismiss and in Opposition to Federal Defendants' Request That This Court Consider Secret Evidence and Legal Argument (Exhibit L) filed byRahinah Ibrahim. (Attachments: # 1 Exhibit L)(Peek, Christine) (Filed on 11/21/2012) (Entered: 11/21/2012)
392 Request for Judicial Notice Plaintiff's Request for Judicial Notice in Opposition to the Federal Defendants' Motion to Dismiss and in Opposition to Federal Defendants' Request That This Court Consider Secret Evidence and Legal Argument (Exhibits M-Y) filed byRahinah Ibrahim. (Attachments: # 1 Exhibit M, # 2 Exhibit N, # 3 Exhibit O, # 4 Exhibit P, # 5 Exhibit Q, # 6 Exhibit R, # 7 Exhibit S, # 8 Exhibit T, # 9 Exhibit U, # 10 Exhibit V, # 11 Exhibit W, # 12 Exhibit X, # 13 Exhibit Y)(Peek, Christine) (Filed on 11/21/2012) (Entered: 11/21/2012)
393 REPLY (re 373 MOTION to Dismiss Complaint (Redacted) ) filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Exhibit)(Theis, John) (Filed on 11/28/2012) (Entered: 11/28/2012)
394 REPLY (re 375 Discovery Letter Brief Requesting Stay of Discovery Pending Resolution of Defendants' Motion to Dismiss ) filed byRahinah Ibrahim. (Peek, Christine) (Filed on 12/3/2012) (Entered: 12/03/2012)
395 RESPONSE to re 372 Order Requesting Briefing Memoranda Regarding Secret Evidence and Legal Argument by Rahinah Ibrahim. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Peek, Christine) (Filed on 12/4/2012) (Entered: 12/04/2012)
396 RESPONSE to re 372 Order Requesting Briefing Memoranda by Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of

12/18/2012 12/19/2012 12/20/2012 12/20/2012
12/20/2012
12/21/2012 12/21/2012 01/03/2013

Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Theis, John) (Filed on 12/11/2012) (Entered: 12/11/2012)
397 COURT NOTICE AND PROPOSED CASE MANAGEMENT ORDER. Signed by Judge William Alsup on 12/18/2012. (Attachments: # 1 Appendix)(whasec, COURT STAFF) (Filed on 12/18/2012) (Entered: 12/18/2012)
398 RESPONSE to re 397 Order PLAINTIFFS RESPONSE TO THE COURTS NOTICE RE: FIRST AMENDED CASE MANAGEMENT ORDER AFTER REMAND by Rahinah Ibrahim. (Peek, Christine) (Filed on 12/19/2012) (Entered: 12/19/2012)
399 ORDER DENYING MOTION TO DISMISS AND MOTION TO STAY DISCOVERY by Judge William Alsup [denying 373 Motion to Dismiss; denying 375 Discovery Letter Brief]. (whasec, COURT STAFF) (Filed on 12/20/2012) (Entered: 12/20/2012)
400 FIRST AMENDED CASE MANAGEMENT SCHEDULING ORDER AFTER REMAND: ORDER REFERRING CASE to Magistrate Judge Jacquelin Scott Corley for Mediation/Settlement. Bench Trial set for 11/4/2013 07:30 AM before Hon. William Alsup. Discovery due by 7/31/2013. Motions due by 9/5/2013. Pretrial Conference set for 10/28/2013 02:00 PM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Signed by Judge William Alsup on 12/20/2012. (whasec, COURT STAFF) (Filed on 12/20/2012) (Entered: 12/20/2012)
401 Minute Entry: Discovery Hearing held on 12/20/2012 before Judge William Alsup (Date Filed: 12/20/2012), Motion Hearing held on 12/20/2012 before Judge William Alsup (Date Filed: 12/20/2012) re 375 Discovery Letter Brief Requesting Stay of Discovery Pending Resolution of Defendants' Motion to Dismiss 373 MOTION to Dismiss Complaint (Redacted) (Court Reporter Joan Columbini.) (dt, COURT STAFF) (Date Filed: 12/20/2012) (Entered: 12/20/2012)
CASE REFERRED to Magistrate Judge Jacqueline Scott Corley for Settlement (rmm2S, COURT STAFF) (Filed on 12/21/2012) (Entered: 12/21/2012)
CASE REFERRED to Magistrate Judge Jacqueline Scott Corley for Settlement (rmm2S, COURT STAFF) (Filed on 12/21/2012) (Entered: 12/21/2012)
402 ANSWER to Complaint (Second Amended) byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H.

01/14/2013
01/31/2013
02/05/2013 02/05/2013 02/07/2013

Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Theis, John) (Filed on 1/3/2013) (Entered: 01/03/2013)
403 Transcript of Proceedings held on December 20, 2012, before Judge William H. Alsup. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, Telephone number 415-255-6842, Joan_Columbini@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 2/4/2013. Redacted Transcript Deadline set for 2/14/2013. Release of Transcript Restriction set for 4/15/2013. (Columbini, Joan) (Filed on 1/14/2013) (Entered: 01/14/2013)
404 Transcript of Proceedings held on October 11, 2012, before Judge William H. Alsup. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, Telephone number 415-255-6842. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 2/21/2013. Redacted Transcript Deadline set for 3/4/2013. Release of Transcript Restriction set for 5/1/2013. (Columbini, Joan) (Filed on 1/31/2013) (Entered: 01/31/2013)
405 Discovery Letter Brief filed by Rahinah Ibrahim. (Peek, Christine) (Filed on 2/5/2013) (Entered: 02/05/2013)
406 Discovery Letter Brief Regarding Proposal for Eliminating/Limiting Discovery Disputes filed by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Theis, John) (Filed on 2/5/2013) Modified on 2/5/2013 (dtmS, COURT STAFF). (Entered: 02/05/2013)
407 ORDER REGARDING PRIVILEGE LOG AND BRIEFING SCHEDULE re 405 Discovery Letter Brief filed by Rahinah Ibrahim, 406 Discovery Letter BriefRegarding Proposal for Eliminating/Limiting Discovery Disputes filed by Tom Ridge, National

02/12/2013 02/13/2013 02/14/2013 02/14/2013 02/14/2013 02/15/2013

Counterterrorism Center, Eric H. Holder, Jr., Department of State, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Department of Homeland Security, Terrorist Screening Center, Leonard C. Boyle, Robert Mueller, Donna A. Bucella (whalc1, COURT STAFF) (Filed on 2/7/2013) (Entered: 02/07/2013)
408 REQUEST for Clarification of 407 Order, and Request for Status Conference. filed by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center (Theis, John) (Filed on 2/12/2013) Modified on 2/12/2013 (dtmS, COURT STAFF). (Entered: 02/12/2013)
409 ORDER ON DEFENDANTS' REQUEST FOR CLARIFICATION re 408 Notice (Other), filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Department of Homeland Security, Terrorist Screening Center, Leonard C. Boyle, Robert Mueller, Donna A. Bucella, 407 Order,, (whalc1, COURT STAFF) (Filed on 2/13/2013) (Entered: 02/13/2013)
410 RESPONSE to re 409 Order, PLAINTIFF'S RESPONSE TO THE COURT'S FEBRUARY 13, 2013 REQUEST FOR ADDITIONAL BRIEFING by Rahinah Ibrahim. (Peek, Christine) (Filed on 2/14/2013) (Entered: 02/14/2013)
411 Declaration of Christine Peek in Support of 410 Response ( Non Motion ) DECLARATION OF CHRISTINE PEEK IN SUPPORT OF PLAINTIFF'S RESPONSE TO THE COURT'S FEBRUARY 13, 2013 REQUEST FOR ADDITIONAL BRIEFING filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 410 ) (Peek, Christine) (Filed on 2/14/2013) (Entered: 02/14/2013)
412 RESPONSE to re 409 Order, by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Declaration, # 2 Declaration)(Theis, John) (Filed on 2/14/2013) (Entered: 02/14/2013)
413 Letter Brief Regarding the Entry of Proposed Protective Orders filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom

02/15/2013
02/15/2013 02/19/2013
02/20/2013 02/21/2013 02/22/2013 02/25/2013

Ridge, Terrorist Screening Center. (Attachments: # 1 Proposed Order, # 2 Proposed Order)(Theis, John) (Filed on 2/15/2013) (Entered: 02/15/2013)
414 ORDER REGARDING PRIVILEGE LOG re 412 Response ( Non Motion ), filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Department of Homeland Security, Terrorist Screening Center, Leonard C. Boyle, Robert Mueller, Donna A. Bucella, 410 Response ( Non Motion ) filed by Rahinah Ibrahim (whalc1, COURT STAFF) (Filed on 2/15/2013) (Entered: 02/15/2013)
415 Letter from Christine Peek Regarding Parties Dispute Over Protective Orders. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Peek, Christine) (Filed on 2/15/2013) (Entered: 02/15/2013)
416 ORDER REGARDING PRIVILEGE LOGS FOR NON-CLASSIFIED DOCUMENTS re 415 Letter filed by Rahinah Ibrahim, 407 Order,, 413 Letter Brief, filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Department of Homeland Security, Terrorist Screening Center, Leonard C. Boyle, Robert Mueller, Donna A. Bucella (whalc1, COURT STAFF) (Filed on 2/19/2013) (Entered: 02/19/2013)
417 Letter Brief Regarding the Court's February 15, 2013 Order filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Theis, John) (Filed on 2/20/2013) (Entered: 02/20/2013)
418 Letter Brief re 417 Letter Brief, Plaintiff's Response to Defendants' Letter Brief re Request for 30 days to Assert Privileges filed byRahinah Ibrahim. (Related document(s) 417 ) (Peek, Christine) (Filed on 2/21/2013) (Entered: 02/21/2013)
419 STIPULATION WITH PROPOSED ORDER Stipulation and [Proposed] Protective Order Regarding Sensitive Security Information filed by Rahinah Ibrahim. (Peek, Christine) (Filed on 2/22/2013) (Entered: 02/22/2013)
420 ORDER DENYING DISCOVERY REQUESTS re 418 Letter Brief filed by Rahinah Ibrahim (whalc1, COURT STAFF) (Filed on 2/25/2013) (Entered: 02/25/2013)

02/25/2013 02/26/2013 02/28/2013 02/28/2013 02/28/2013 02/28/2013 02/28/2013 02/28/2013

421 ORDER GRANTING STIPULATED PROTECTIVE ORDER REGARDING SENSITIVE SECURITY INFORMATION by Hon. William Alsup granting 419 Stipulation.(whalc1, COURT STAFF) (Filed on 2/25/2013) (Entered: 02/25/2013)
422 OBJECTIONS to Plaintiff's Proposed Non-SSI Protective Order by Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Terrorist Screening Center, UNITED STATES OF AMERICA. (Farel, Lily) (Filed on 2/26/2013) (Entered: 02/26/2013)
423 Administrative Motion to File Under Seal PLAINTIFFS ADMINISTRATIVE MOTION TO SEAL; DECLARATION OF CHRISTINE PEEK IN SUPPORT OF MOTION TO SEAL filed by Rahinah Ibrahim. (Peek, Christine) (Filed on 2/28/2013) (Entered: 02/28/2013)
424 Proposed Order re 423 Administrative Motion to File Under Seal PLAINTIFFS ADMINISTRATIVE MOTION TO SEAL; DECLARATION OF CHRISTINE PEEK IN SUPPORT OF MOTION TO SEAL by Rahinah Ibrahim. (Peek, Christine) (Filed on 2/28/2013) (Entered: 02/28/2013)
425 MOTION to Compel FURTHER RESPONSES TO WRITTEN DISCOVERY AND TO COMPEL RULE 30(b)(6) DEPOSITIONS filed by Rahinah Ibrahim. Motion Hearing set for 4/4/2013 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 3/14/2013. Replies due by 3/21/2013. (Peek, Christine) (Filed on 2/28/2013) (Entered: 02/28/2013)
426 Statement re 425 MOTION to Compel FURTHER RESPONSES TO WRITTEN DISCOVERY AND TO COMPEL RULE 30(b)(6) DEPOSITIONS SEPARATE STATEMENT OF ITEMS IN DISPUTE IN SUPPORT OF PLAINTIFFS MOTIONS TO COMPEL FURTHER RESPONSES TO WRITTEN DISCOVERY AND RULE 30(b)(6) DEPOSITIONS [PART ONE OF THREE] by Rahinah Ibrahim. (Peek, Christine) (Filed on 2/28/2013) (Entered: 02/28/2013)
427 Statement re 425 MOTION to Compel FURTHER RESPONSES TO WRITTEN DISCOVERY AND TO COMPEL RULE 30(b)(6) DEPOSITIONS SEPARATE STATEMENT OF ITEMS IN DISPUTE IN SUPPORT OF PLAINTIFFS MOTIONS TO COMPEL FURTHER RESPONSES TO WRITTEN DISCOVERY AND RULE 30(b)(6) DEPOSITIONS [PART TWO OF THREE] by Rahinah Ibrahim. (Peek, Christine) (Filed on 2/28/2013) (Entered: 02/28/2013)
428 Statement re 425 MOTION to Compel FURTHER RESPONSES TO WRITTEN DISCOVERY AND TO COMPEL RULE 30(b)(6)

02/28/2013
02/28/2013 03/05/2013 03/05/2013 03/05/2013

DEPOSITIONS SEPARATE STATEMENT OF ITEMS IN DISPUTE IN SUPPORT OF PLAINTIFFS MOTIONS TO COMPEL FURTHER RESPONSES TO WRITTEN DISCOVERY AND RULE 30(b)(6) DEPOSITIONS [PART THREE OF THREE] by Rahinah Ibrahim. (Peek, Christine) (Filed on 2/28/2013) (Entered: 02/28/2013)
429 Declaration of Christine Peek in Support of 425 MOTION to Compel FURTHER RESPONSES TO WRITTEN DISCOVERY AND TO COMPEL RULE 30(b)(6) DEPOSITIONS filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF, # 33 Exhibit GG, # 34 Supplement HH)(Related document(s) 425 ) (Peek, Christine) (Filed on 2/28/2013) (Entered: 02/28/2013)
430 Proposed Order re 425 MOTION to Compel FURTHER RESPONSES TO WRITTEN DISCOVERY AND TO COMPEL RULE 30(b)(6) DEPOSITIONS PROPOSED ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO WRITTEN DISCOVERY AND TO COMPEL RULE 30 (b)(6) DEPOSITIONS by Rahinah Ibrahim. (Peek, Christine) (Filed on 2/28/2013) (Entered: 02/28/2013)
431 NOTICE re Lodging of Ex Parte, In Camera Materials, by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center re 414 Order, (Theis, John) (Filed on 3/5/2013) Modified on 3/5/2013 (dtmS, COURT STAFF). (Entered: 03/05/2013)
432 RESPONSE to re 422 Objection to Plaintiff's Proposed Non SSI Protective Order, by Rahinah Ibrahim. (Peek, Christine) (Filed on 3/5/2013) Modified on 3/5/2013 (dtmS, COURT STAFF). (Entered: 03/05/2013)
433 Administrative MOTION for a Stay of Briefing Related to Classified Information, or in the Alternative, for an Extension of Time to File their Opposition to 425 Motion to Compel , filed by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National

03/07/2013 03/07/2013 03/08/2013 03/13/2013 03/15/2013

Counterterrorism Center, Tom Ridge, Terrorist Screening Center. Responses due by 3/19/2013. Replies due by 3/26/2013. (Attachments: # 1 Proposed Order)(Theis, John) (Filed on 3/5/2013) Modified on 3/5/2013 (dtmS, COURT STAFF). Modified on 3/5/2013 (dtmS, COURT STAFF). (Entered: 03/05/2013)
434 RESPONSE (re 433 MOTION Administrative Motion for a Stay of Briefing Related to Classified Information, or in the Alternative, for an Extension of Time to File their Opposition to Motion to Compel re 425 MOTION to Compel FURTHER RESPONSES TO WRITTEN DISCOVER ) PLAINTIFFS OPPOSITION TO DEFENDANTS ADMINISTRATIVE MOTION FOR A STAY OF BRIEFING RELATED TO CLASSIFIED INFORMATION, OR IN THE ALTERNATIVE, FOR AN EXTENSION OF TIME TO FILE THEIR OPPOSITION TO PLAINTIFFS MOTION TO COMPEL filed byRahinah Ibrahim. (Peek, Christine) (Filed on 3/7/2013) (Entered: 03/07/2013)
435 Declaration of Paul G. Freeborne in Support of 424 Proposed Order, 423 Administrative Motion to File Under Seal PLAINTIFFS ADMINISTRATIVE MOTION TO SEAL; DECLARATION OF CHRISTINE PEEK IN SUPPORT OF MOTION TO SEAL filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Related document(s) 424 , 423 ) (Theis, John) (Filed on 3/7/2013) (Entered: 03/07/2013)
436 ORDER REGARDING GOVERNMENT SUBMISSIONS re 431 Notice (Other), filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Department of Homeland Security, Terrorist Screening Center, Leonard C. Boyle, Robert Mueller, Donna A. Bucella (whalc1, COURT STAFF) (Filed on 3/8/2013) (Entered: 03/08/2013)
437 ORDER REGARDING NON-SSI PRIVILEGE LOG, MOTION TO SEAL, REQUESTS FOR EXTENSION OF TIME, AND CLASSIFIED SUBMISSIONS by Judge Alsup terminating 405 Discovery Letter Brief; terminating 406 Discovery Letter Brief; granting 423 Administrative Motion to File Under Seal; denying 433 Motion (whalc1, COURT STAFF) (Filed on 3/13/2013) (Entered: 03/13/2013)
438 NOTICE of Lodging Materials in Support of Opposition to Plaintiff's Motion to Compel. by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism

03/18/2013 03/20/2013
03/20/2013 03/21/2013 03/22/2013 03/22/2013

Center, Tom Ridge, Terrorist Screening Center (Theis, John) (Filed on 3/15/2013) Modified on 3/15/2013 (dtmS, COURT STAFF). (Entered: 03/15/2013)
439 NOTICE of Lodging Materials in Response to the Court's 436 Order by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center (Theis, John) (Filed on 3/18/2013) Modified on 3/18/2013 (dtmS, COURT STAFF). (Entered: 03/18/2013)
440 *** FILED IN ERROR. SEE Dkt No. # 441 *** ORDER CHANGING SCHEDULE re 437 Order on Discovery Letter Brief,, Order on Administrative Motion to File Under Seal, Order on Motion for Miscellaneous Relief,,,,, Set/Reset Deadlines as to 437 Order on Discovery Letter Brief,, Order on Administrative Motion to File Under Seal, Order on Motion for Miscellaneous Relief,,,, 425 MOTION to Compel FURTHER RESPONSES TO WRITTEN DISCOVERY AND TO COMPEL RULE 30(b)(6) DEPOSITIONS. Motion Hearing set for 4/18/2013 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup.. Signed by Judge Alsup on March 20, 2013.. (whalc1, COURT STAFF) (Filed on 3/20/2013) Modified on 3/20/2013 (whalc1, COURT STAFF). (Entered: 03/20/2013)
441 ORDER CHANGING SCHEDULE re 437 Order on Discovery Letter Brief,, Order on Administrative Motion to File Under Seal, Order on Motion for Miscellaneous Relief,,,,. Signed by Judge Alsup on March 20, 2013.. (whalc1, COURT STAFF) (Filed on 3/20/2013) (Entered: 03/20/2013)
442 NOTICE of Lodging by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center re 441 Order, (Theis, John) (Filed on 3/21/2013) Modified on 3/21/2013 (dtmS, COURT STAFF). (Entered: 03/21/2013)
443 Administrative Motion to File Under Seal Plaintiff's Reply in Support of Plaintiff's Motion to Compel Further Responses to Written Discovery and to Compel Rule 30(b)(6) Depositions; Declaration of Christine Peek in Support of Motion to Seal filed by Rahinah Ibrahim. (Peek, Christine) (Filed on 3/22/2013) Modified on 3/22/2013 (dtmS, COURT STAFF). (Entered: 03/22/2013)
444 Declaration of Christine Peek REPLY DECLARATION OF CHRISTINE PEEK IN SUPPORT OF PLAINTIFFS MOTION TO COMPEL FURTHER RESPONSES TO WRITTEN DISCOVERY AND TO

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COMPEL RULE 30(b)(6) DEPOSITIONS filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Peek, Christine) (Filed on 3/22/2013) (Entered: 03/22/2013)
445 Proposed Order re 443 Administrative Motion to File Under Seal PLAINTIFFS ADMINISTRATIVE MOTION TO SEAL PLAINTIFFS REPLY IN SUPPORT OF PLAINTIFFS MOTION TO COMPEL FURTHER RESPONSES TO WRITTEN DISCOVERY AND TO COMPEL RULE 30(b)(6) DEPOSITIONS; DECLARATION OF CHRISTINE PE by Rahinah Ibrahim. (Peek, Christine) (Filed on 3/22/2013) (Entered: 03/22/2013)
446 ORDER GRANTING MOTION TO SEAL by Hon. William Alsup granting 443 Administrative Motion to File Under Seal.(whalc1, COURT STAFF) (Filed on 3/25/2013) (Entered: 03/25/2013)
447 Administrative Motion to File Under Seal PLAINTIFFS ADMINISTRATIVE MOTION TO SEAL: (1) PLAINTIFFS RESPONSE TO DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION TO COMPEL ALLEGEDLY CLASSIFIED DOCUMENTS AND (2) SUPPLEMENTAL REPLY DECLARATION OF CHRISTINE PEEK IN SUPPORT OF PLAINTIFFS MOTION TO COMPEL FURTHER RESPONSES TO WRITTEN DISCOVERY AND TO COMPEL RULE 30(b)(6) DEPOSITIONS AND ALL EXHIBITS; DECLARATION OF CHRISTINE PEEK IN SUPPORT OF MOTION TO SEAL filed by Rahinah Ibrahim. (Peek, Christine) (Filed on 3/28/2013) (Entered: 03/28/2013)
448 Proposed Order re 447 Administrative Motion to File Under Seal PLAINTIFFS ADMINISTRATIVE MOTION TO SEAL: (1) PLAINTIFFS RESPONSE TO DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION TO COMPEL ALLEGEDLY CLASSIFIED DOCUMENTS AND (2) SUPPLEMENTAL REPLY DECLARATION OF CHRISTINE PE by Rahinah Ibrahim. (Peek, Christine) (Filed on 3/28/2013) (Entered: 03/28/2013)
449 ORDER GRANTING MOTION TO SEAL by Hon. William Alsup granting 447 Administrative Motion to File Under Seal.(whalc1, COURT STAFF) (Filed on 3/28/2013) (Entered: 03/28/2013)
450 ORDER REGARDING IN CAMERA SUBMISSIONS OF WITHHELD DOCUMENTS re 425 MOTION to Compel FURTHER RESPONSES TO WRITTEN DISCOVERY AND TO COMPEL RULE 30(b)(6) DEPOSITIONS filed by Rahinah Ibrahim. Signed by Judge Alsup on March 28, 2013.. (whalc1, COURT STAFF) (Filed on 3/28/2013) (Entered: 03/28/2013)

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451 NOTICE of Lodging Materials in Response to the Court's 3/28/2013 Order, by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center re 450 Order, (Theis, John) (Filed on 4/2/2013) Modified on 4/2/2013 (dtmS, COURT STAFF). (Entered: 04/02/2013)
452 Order FILED UNDER SEAL. (dtmS, COURT STAFF) (Filed on 4/2/2013) (Entered: 04/02/2013)
453 Proposed Order [PROPOSED] PROTECTIVE ORDER REGARDING NON-SENSITIVE SECURITY INFORMATION by Rahinah Ibrahim. (Peek, Christine) (Filed on 4/3/2013) (Entered: 04/03/2013)
454 NOTICE of Filing Under Seal, by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center re 440 Order, Set Motion and Deadlines/Hearings,,,, (Theis, John) (Filed on 4/4/2013) Modified on 4/4/2013 (dtmS, COURT STAFF). (Entered: 04/04/2013)
455 ORDER GRANTING PROTECTIVE ORDER REGARDING NONSENSITIVE SECURITY INFORMATION re 453 Proposed Order filed by Rahinah Ibrahim. Signed by Judge Alsup on April 4, 2013.. (whalc1, COURT STAFF) (Filed on 4/5/2013) (Entered: 04/05/2013)
456 NOTICE of Lodging Ex Parte and Under Seal Response to Court's 4/2/2013 Order; by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center re 452 Received Document (Theis, John) (Filed on 4/8/2013) Modified on 4/9/2013 (dtmS, COURT STAFF). (Entered: 04/08/2013)
457 NOTICE by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center Regarding Correction to FBITSC's First Amended Privilege Log and Notice of Lodging (Theis, John) (Filed on 4/15/2013) (Entered: 04/15/2013)
458 MOTION For Release of April 2, 2013 Order to Plaintiff's Counsel Pursuant to Protective Order re 452 Received Document and Declaration

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of Christine Peek filed by Rahinah Ibrahim. Responses due by 4/22/2013. (Peek, Christine) (Filed on 4/17/2013) (Entered: 04/17/2013)
459 Proposed Order re 458 MOTION For Release of April 2, 2013 Order to Plaintiff's Counsel Pursuant to Protective Order re 452 Received Document and Declaration of Christine Peek by Rahinah Ibrahim. (Peek, Christine) (Filed on 4/17/2013) (Entered: 04/17/2013)
460 Amended MOTION For Release of April 2, 2013 Order to Plaintiff's Counsel Pursuant to Protective Order re 452 Received Document ; Declaration of Christine Peek filed by Rahinah Ibrahim. Responses due by 4/22/2013. (Peek, Christine) (Filed on 4/17/2013) (Entered: 04/17/2013)
463 Minute Entry: Motion Hearing held on 4/18/2013 before William Alsup re 425 MOTION to Compel FURTHER RESPONSES TO WRITTEN DISCOVERY AND TO COMPEL RULE 30(b)(6) DEPOSITIONS filed by Rahinah Ibrahim. The Court will make its Order of April 2, 2013, available to Plaintiff's counsel; the document will remain restricted from the public. Defense to make the declarations of Eric Holder and James Clapper available to Plaintiff's counsel. Plaintiff granted leave to take three depositions. Remaining issues taken under submission. (Court Reporter Lydia Zinn.) (jmdS, COURT STAFF) (Date Filed: 4/18/2013) (Entered: 04/19/2013)
461 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL by Judge Alsup granting in part and denying in part 425 Motion to Compel (whalc1, COURT STAFF) (Filed on 4/19/2013) Modified on 4/19/2013 (whalc1, COURT STAFF). (Entered: 04/19/2013)
462 ORDER REGARDING PLAINTIFF'S MOTION TO COMPEL by Judge William Alsup [granting in part and denying in part 458 Motion ; granting in part and denying in part 460 Motion]. Formerly filed under seal and ex parte now unsealed. (whasec, COURT STAFF) (Filed on 4/19/2013) (Entered: 04/19/2013)
465 ORDER REGARDING SEALED SUBMISSIONS. Signed by Judge Alsup on April 19, 2013.. (whalc1, COURT STAFF) (Filed on 4/19/2013) (Entered: 04/19/2013)
466 RESPONSE to re 461 Order on Motion to Compel by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Declaration)(Theis, John) (Filed on 4/22/2013) (Entered: 04/22/2013)

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467 TRANSCRIPT ORDER by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center for Court Reporter Lydia Zinn. (Theis, John) (Filed on 4/22/2013) (Entered: 04/22/2013)
468 Transcript of Proceedings held on 4/18/2013, before Judge William H. Alsup. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531-6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 7/22/2013. (Related documents(s) 467 ) (Zinn, Lydia) (Filed on 4/22/2013) (Entered: 04/22/2013)
469 TRANSCRIPT ORDER by Rahinah Ibrahim for Court Reporter Lydia Zinn. (Pipkin, Elizabeth) (Filed on 4/22/2013) (Entered: 04/22/2013)
470 REQUEST REGARDING SSI CLEARANCES re 466 Response ( Non Motion ), filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Terrorist Screening Center, Department of Homeland Security, Leonard C. Boyle, Donna A. Bucella. Signed by Judge Alsup on April 22, 2013.. (whalc1, COURT STAFF) (Filed on 4/23/2013) (Entered: 04/23/2013)
471 Declaration of James R. Clapper, Director of National Intelligence, Filed (dtmS, COURT STAFF) (Filed on 4/23/2013) (Entered: 04/23/2013)
472 Declaration of Eric Holder Jr, Attorney General of the United States. filed byDepartment of Homeland Security, Department of State, Federal Bureau of Investigation, UNITED STATES OF AMERICA. (dtmS, COURT STAFF) (Filed on 4/23/2013) (Entered: 04/23/2013)
473 RESPONSE to re 470 Order, by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Theis, John) (Filed on 4/25/2013) (Entered: 04/25/2013)
474 NOTICE re Appellate Review by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Department of Homeland Security,

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Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center re 461 Order on Motion to Compel (Theis, John) (Filed on 5/2/2013) Modified on 5/2/2013 (dtmS, COURT STAFF). (Entered: 05/02/2013)
475 NOTICE OF FILING MATERIALS IN RESPONSE TO THE COURTS APRIL 19, 2013 ORDER REGARDING SEALED SUBMISSIONS by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center re 465 Order (Theis, John) (Filed on 5/8/2013) Modified on 5/8/2013 (dtmS, COURT STAFF). (Entered: 05/08/2013)
476 NOTICE by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center of Lodging and of Redactions in Defendants' May 3, 2013 Production (Theis, John) (Filed on 5/15/2013) (Entered: 05/15/2013)
477 Letter Brief filed byLeonard C. Boyle, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Farel, Lily) (Filed on 5/17/2013) (Entered: 05/17/2013)
478 ORDER RE MOTION TO QUASH re 477 Letter Brief, filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Arthur M. Cummings, II, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Terrorist Screening Center, Department of Homeland Security, Leonard C. Boyle, Robert Mueller. Signed by Judge Alsup on May 20, 2013.. (whalc1, COURT STAFF) (Filed on 5/20/2013) (Entered: 05/20/2013)
479 NOTICE by Rahinah Ibrahim Plaintiff's Notice of Filing Response Pursuant to Court's Order re Motion to Quash, Dated May 20, 2013 (Pipkin, Elizabeth) (Filed on 5/21/2013) (Entered: 05/21/2013)
480 Letter from Elizabeth Pipkin and Exhibits A and B to the Hon. William Alsup (REDACTED). (Pipkin, Elizabeth) (Filed on 5/21/2013) (Entered: 05/21/2013)

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481 ORDER GRANTING MOTION TO QUASH re 480 Letter filed by Rahinah Ibrahim, 477 Letter Brief, filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Arthur M. Cummings, II, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Terrorist Screening Center, Department of Homeland Security, Leonard C. Boyle, Robert Mueller. Signed by Judge Alsup on May 23, 2013.. (whalc1, COURT STAFF) (Filed on 5/23/2013) (Entered: 05/23/2013)
482 Discovery Letter Brief filed by Rahinah Ibrahim. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Peek, Christine) (Filed on 5/30/2013) (Entered: 05/30/2013)
483 Letter Brief Seeking Protective Order/Quash of Subpoenas filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Exhibit Notice of Deposition of Kevin Kelley, # 2 Exhibit Notice of Deposition of Paul Woods)(Theis, John) (Filed on 5/31/2013) (Entered: 05/31/2013)
484 ORDER RE DEPOSITIONS by Hon. William Alsup granting in part and denying in part 482 Discovery Letter Brief.(whalc1, COURT STAFF) (Filed on 6/4/2013) (Entered: 06/04/2013)
485 Letter from Elizabeth Pipkin, Esq. to The Honorable William Alsup (reconsideration). (Pipkin, Elizabeth) (Filed on 6/7/2013) (Entered: 06/07/2013)
486 Letter from Elizabeth Pipkin to Judge Alsup (reconsideration of order re deposition) . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Pipkin, Elizabeth) (Filed on 6/12/2013) (Entered: 06/12/2013)
487 ORDER RE MOTIONS FOR RECONSIDERATION re 486 Letter filed by Rahinah Ibrahim, 485 Letter filed by Rahinah Ibrahim. Signed by Judge Alsup on June 13, 2013.. (whalc1, COURT STAFF) (Filed on 6/13/2013) (Entered: 06/13/2013)
488 Brief re 487 Order Regarding Motions for Reconsideration filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Declaration of Jennifer L. Hudson)(Related

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document(s) 487 ) (Theis, John) (Filed on 6/19/2013) (Entered: 06/19/2013)
489 Redacted REPLY in Support of Request for Leave to File Motion for Reconsideration; Objection to Declaration of Jennifer L. Hudson by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 6/20/2013) Modified on 6/20/2013 (dtmS, COURT STAFF). (Entered: 06/20/2013)
490 NOTICE of Lodging and of Redactions in Defendants' May 20, 2013 Production by Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center (Theis, John) (Filed on 6/25/2013) Modified on 6/25/2013 (dtmS, COURT STAFF). (Entered: 06/25/2013)
491 Letter from Christine Peek re DOS Rule 30(b)(6) Deposition. (Peek, Christine) (Filed on 6/28/2013) (Entered: 06/28/2013)
492 Letter from Christine Peek re FBI Rule 30(b)(6) Deposition. (Peek, Christine) (Filed on 6/28/2013) (Entered: 06/28/2013)
493 Letter from Christine Peek (Admissibility of Plaintiff's Deposition Testimony). (Peek, Christine) (Filed on 6/28/2013) (Entered: 06/28/2013)
494 Discovery Letter Briefre Rule 30(b)(6) Depositions of FBI and Department of State filed by Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Exhibit)(Theis, John) (Filed on 7/1/2013) (Entered: 07/01/2013)
495 ORDER RE DISPUTE OVER DEPOSITION OATH re 493 Letter filed by Rahinah Ibrahim. Signed by Judge Alsup on July 1, 2013.. (whalc1S, COURT STAFF) (Filed on 7/1/2013) (Entered: 07/01/2013)
496 RESPONSE re 495 Order re Deposition Oath filed by Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Related document(s) 495 ) (Theis, John) (Filed on 7/2/2013) Modified on 7/2/2013 (dtmS, COURT STAFF). (Entered: 07/02/2013)

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497 ORDER RE DEPOSITION OATH re 493 Letter filed by Rahinah Ibrahim. Signed by Judge Alsup on July 2, 2013.. (whalc1, COURT STAFF) (Filed on 7/2/2013) (Entered: 07/02/2013)
498 NOTICE of Appearance by Karen S Bloom (Bloom, Karen) (Filed on 7/12/2013) (Entered: 07/12/2013)
499 MOTION for Leave to File PLAINTIFF'S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT filed by Rahinah Ibrahim. (Peek, Christine) (Filed on 7/17/2013) (Entered: 07/17/2013)
500 Declaration of Christine Peek in Support of 499 MOTION for Leave to File PLAINTIFF'S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Related document(s) 499 ) (Peek, Christine) (Filed on 7/17/2013) (Entered: 07/17/2013)
501 ERRATA re 500 Declaration in Support, 499 MOTION for Leave to File PLAINTIFF'S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT by Rahinah Ibrahim. (Peek, Christine) (Filed on 7/17/2013) (Entered: 07/17/2013)
502 Filed in Error, See Entry 503 Letter from Elizabeth Pipkin Plaintiff's Request for Hearing. (Attachments: # 1 Exhibit A)(Pipkin, Elizabeth) (Filed on 7/17/2013) Modified on 7/18/2013 (dtmS, COURT STAFF). (Entered: 07/17/2013)
503 MOTION for Hearing Plaintiff's Request for Hearing filed by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 7/17/2013) (Entered: 07/17/2013)
Set/Reset Deadlines as to 499 MOTION for Leave to File PLAINTIFF'S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT. Motion Hearing set for 9/5/2013 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. (dt, COURT STAFF) (Filed on 7/17/2013) (Entered: 07/22/2013)
504 RESPONSE (re 503 MOTION for Hearing Plaintiff's Request for Hearing ) filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Exhibit A)(Bloom, Karen) (Filed on 7/19/2013) (Entered: 07/19/2013)
505 ORDER DENYING REQUEST FOR HEARING by Hon. William Alsup denying 503 Motion for Hearing.(whalc1, COURT STAFF) (Filed on 7/23/2013) (Entered: 07/23/2013)

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506 MOTION to Continue Trial filed by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 7/24/2013) (Entered: 07/24/2013)
507 Redacted Declaration of Elizabeth Pipkin in Support of 506 MOTION to Continue Trial filed by Rahinah Ibrahim. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB)(Related document(s) 506 ) (Pipkin, Elizabeth) (Filed on 7/24/2013) Modified on 7/25/2013 (dtmS, COURT STAFF). (Entered: 07/24/2013)
508 *** FILED IN ERROR. DOCUMENT REMOVED PER COURT ORDER. DOCUMENT TO BE REFILED LATER. *** Redacted Memorandum of Points and Authorities in Support of 506 MOTION to Continue Trial filed by Rahinah Ibrahim. (Attachments: # 1 Exhibit 1)(Related document(s) 506 ) (Pipkin, Elizabeth) (Filed on 7/24/2013) Modified on 7/25/2013 (dtmS, COURT STAFF). Modified on 7/25/2013 (ewn, COURT STAFF). (Entered: 07/24/2013)
509 REDACTED MEMORANDUM of Points & Authorities in Support of 506 MOTION to Continue Trial (Corrected Entry 508 ) filed by Rahinah Ibrahim. (Attachments: # 1 Exhibit 1)(Related document(s) 506 ) (Pipkin, Elizabeth) (Filed on 7/25/2013) Modified on 7/26/2013 (dtmS, COURT STAFF). Modified on 7/26/2013 (dtmS, COURT STAFF). (Entered: 07/25/2013)
510 MOTION to Remove Incorrectly Filed Document from Docket; Docket # 508 filed by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 7/25/2013) (Entered: 07/25/2013)
511 Declaration of Elizabeth Pipkin in Support of 510 MOTION to Remove Incorrectly Filed Document from Docket; Docket # 508 filed byRahinah Ibrahim. (Related document(s) 510 ) (Pipkin, Elizabeth) (Filed on 7/25/2013) (Entered: 07/25/2013)
512 Proposed Order re 510 MOTION to Remove Incorrectly Filed Document from Docket; Docket # 508 by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 7/25/2013) (Entered: 07/25/2013)
513 ORDER GRANTING MOTION TO REMOVE INCORRECTLY FILED DOCUMENT FROM DOCKET by Hon. William Alsup granting 510 Motion to Remove Incorrectly Filed Document.(whalc1, COURT STAFF) (Filed on 7/31/2013) (Entered: 07/31/2013)

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514 RESPONSE (re 499 MOTION for Leave to File PLAINTIFF'S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT ) filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Bloom, Karen) (Filed on 7/31/2013) (Entered: 07/31/2013)
515 Discovery Letter BriefREDACTED filed by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 8/2/2013) (Entered: 08/02/2013)
516 ORDER REQUESTING RESPONSE TO DISCOVERY LETTER re 515 Discovery Letter BriefREDACTED filed by Rahinah Ibrahim. Signed by Judge Alsup on August 5, 2013.. (whalc1, COURT STAFF) (Filed on 8/5/2013) (Entered: 08/05/2013)
517 Discovery Letter BriefRe Depositions (REDACTED) filed by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 8/6/2013) (Entered: 08/06/2013)
518 Discovery Letter BriefRe Interrogatory Responses (REDACTED) filed by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 8/6/2013) (Entered: 08/06/2013)
519 RESPONSE to re 516 Order REDACTED by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Exhibit, # 2 Exhibit)(Theis, John) (Filed on 8/7/2013) (Entered: 08/07/2013)
520 RESPONSE (re 506 MOTION to Continue Trial ) REDACTED filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Theis, John) (Filed on 8/7/2013) (Entered: 08/07/2013)
521 Discovery Letter Briefre Production of Documents and Responses to Special Interrogatories - REDACTED filed by Rahinah Ibrahim. (Attachments: # 1 Exhibit A)(Pipkin, Elizabeth) (Filed on 8/7/2013) (Entered: 08/07/2013)
522 REPLY (re 499 MOTION for Leave to File PLAINTIFF'S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT ) filed

08/07/2013 08/08/2013
08/12/2013
08/14/2013 08/14/2013 08/14/2013 08/14/2013

byRahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 8/7/2013) (Entered: 08/07/2013)
523 Declaration of Elizabeth Pipkin in Support of 499 Motion for Leave to File Third Amended Complaint filed by Rahinah Ibrahim. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Related document(s) 522 ) (Pipkin, Elizabeth) (Filed on 8/7/2013) Modified on 8/8/2013 (dtmS, COURT STAFF). (Entered: 08/07/2013)
524 NOTICE OF LODGING and of Redactions in Defendants' July 31, 2013 Production by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center (Farel, Lily) (Filed on 8/8/2013) Modified on 8/8/2013 (dtmS, COURT STAFF). (Entered: 08/08/2013)
525 MOTION To CONTINUE Motions Currently set for September 5, 2013 filed by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. Responses due by 8/26/2013. Replies due by 9/3/2013. (Attachments: # 1 Declaration of Lily Sara Farel, # 2 Proposed Order)(Farel, Lily) (Filed on 8/12/2013) Modified on 8/12/2013 (dtmS, COURT STAFF). (Entered: 08/12/2013)
526 ERRATA re 507 Declaration in Support,,, NOTICE OF ERRATA TO THE DECLARATION OF ELIZABETH PIPKIN IN SUPPORT OF PLAINTIFF'S MOTION FOR CONTINUANCE by Rahinah Ibrahim. (Attachments: # 1 Exhibit CC)(Pipkin, Elizabeth) (Filed on 8/14/2013) (Entered: 08/14/2013)
527 NOTICE by Rahinah Ibrahim re 517 Discovery Letter BriefRe Depositions (REDACTED) NOTICE OF LODGING OF ATTACHMENT TO PLAINTIFF'S AUGUST 6, 2013 DISCOVERY LETTER BRIEF (Dkt#517) UNDER SEAL PURSUANT TO PROTECTIVE ORDER (Pipkin, Elizabeth) (Filed on 8/14/2013) (Entered: 08/14/2013)
528 REPLY (re 506 MOTION to Continue Trial ) PLAINTIFF'S REDACTED REPLY IN SUPPORT OF MOTION FOR CONTINUANCE filed byRahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 8/14/2013) (Entered: 08/14/2013)
529 Declaration of Elizabeth Pipkin in Support of 528 Reply to Opposition/Response REDACTED REPLY DECLARATION OF

08/16/2013 08/20/2013 08/20/2013 08/23/2013 08/28/2013
09/05/2013

ELIZABETH PIPKIN IN SUPPORT OF PLAINTIFF'S MOTION FOR CONTINUANCE filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M)(Related document(s) 528 ) (Pipkin, Elizabeth) (Filed on 8/14/2013) (Entered: 08/14/2013)
530 RESPONSE (re 525 MOTION to Continue ) Defendants' Administrative Motion to Move September 5, 2013 Hearing Date filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A)(Pipkin, Elizabeth) (Filed on 8/16/2013) (Entered: 08/16/2013)
531 ORDER GRANTING CONTINUANCE OF HEARING by Hon. William Alsup [granting 525 Motion to Continue].(whasec, COURT STAFF) (Filed on 8/20/2013) (Entered: 08/20/2013)
Set/Reset Hearing Motion Hearing set for 9/12/2013 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. (whasec, COURT STAFF) (Filed on 8/20/2013) (Entered: 08/20/2013)
532 OMNIBUS ORDER ON PENDING MOTIONS by Judge Alsup denying 494 Discovery Letter Brief; denying 499 Motion for Leave to File; granting in part and denying in part 506 Motion to Continue; granting in part and denying in part 515 Discovery Letter Brief (whalc1, COURT STAFF) (Filed on 8/23/2013) (Entered: 08/23/2013)
533 RESPONSE (re 517 Discovery Letter BriefRe Depositions (REDACTED), 518 Discovery Letter BriefRe Interrogatory Responses (REDACTED), 521 Discovery Letter Briefre Production of Documents and Responses to Special Interrogatories - REDACTED ) filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Exhibit, # 2 Exhibit)(Bloom, Karen) (Filed on 8/28/2013) (Entered: 08/28/2013)
534 (Redacted) MOTION for Summary Judgment filed by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. Motion Hearing set for 10/10/2013 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 9/19/2013. Replies due by 9/26/2013. (Theis, John) (Filed on 9/5/2013) Modified on 9/6/2013 (dtmS, COURT STAFF). (Entered: 09/05/2013)

09/05/2013
09/06/2013 09/11/2013 09/11/2013 09/13/2013

535 (Redacted) Declaration of Paul G. Freeborne in Support of 534 MOTION for Summary Judgment filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5 (Part 1 of 4), # 6 Exhibit Exhibit 5 (Part 2 of 4), # 7 Exhibit Exhibit 5 (Part 3 of 4), # 8 Exhibit Exhibit 5 (Part 4 of 4), # 9 Exhibit Exhibit 6, # 10 Exhibit Exhibit 7, # 11 Exhibit Exhibit 8, # 12 Exhibit Exhibit 9, # 13 Exhibit Exhibit 10, # 14 Exhibit Exhibit 11, # 15 Exhibit Exhibit 12, # 16 Exhibit Exhibit 13, # 17 Exhibit Exhibit 14, # 18 Exhibit Exhibit 15, # 19 Exhibit Exhibit 16, # 20 Exhibit Exhibit 17, # 21 Exhibit Exhibit 18, # 22 Exhibit Exhibit 19, # 23 Exhibit Exhibit 20, # 24 Exhibit Exhibit 21, # 25 Exhibit Exhibit 22, # 26 Exhibit Exhibit 23, # 27 Exhibit Exhibit 24, # 28 Exhibit Exhibit 25, # 29 Exhibit Exhibit 26, # 30 Exhibit Exhibit 27, # 31 Exhibit Exhibit 28, # 32 Exhibit Exhibit 29, # 33 Exhibit Exhibit 30, # 34 Exhibit Exhibit 31, # 35 Exhibit Exhibit 32, # 36 Exhibit Exhibit 33, # 37 Exhibit Exhibit 34, # 38 Exhibit Exhibit 35, # 39 Exhibit Exhibit 36)(Related document(s) 534 ) (Theis, John) (Filed on 9/5/2013) Modified on 9/6/2013 (dtmS, COURT STAFF). (Entered: 09/05/2013)
536 ORDER RE MOTION TO COMPEL (DKT. NO. 515). Signed by Judge Alsup on September 6, 2013.. (whalc1, COURT STAFF) (Filed on 9/6/2013) (Entered: 09/06/2013)
537 RESPONSE to re 536 Order and Notice of Lodging Materials Under Seal and Ex Parte, In Camera by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Exhibit, # 2 Declaration)(Theis, John) (Filed on 9/11/2013) (Entered: 09/11/2013)
538 ORDER ON THREE DISCOVERY MOTIONS (DKT. NOS. 517-18, 521) by Judge Alsup denying 517 Discovery Letter Brief; denying 518 Discovery Letter Brief; denying 521 Discovery Letter Brief (whalc1, COURT STAFF) (Filed on 9/11/2013) (Entered: 09/11/2013)
539 ORDER DENYING MOTION TO COMPEL PRODUCTION OF CLASSIFIED DOCUMENTS. Signed by Judge Alsup on September 13, 2013.. (whalc1, COURT STAFF) (Filed on 9/13/2013) (Entered: 09/13/2013)

09/13/2013 09/17/2013 09/19/2013
09/19/2013
09/19/2013

540 ORDER RE WITHHELD DOCUMENTS. Signed by Judge Alsup on September 13, 2013.. (whalc1, COURT STAFF) (Filed on 9/13/2013) (Entered: 09/13/2013)
541 RESPONSE to re 540 Order re Withheld Documents by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Theis, John) (Filed on 9/17/2013) (Entered: 09/17/2013)
542 DECLARATION of Christine Peek in Opposition to 534 Federal Defendants Motion for Summary Judgment filed by Rahinah Ibrahim. (Attachments: # 1 Exhibit A, # 2 Exhibit B (part 1 of 2), # 3 Exhibit B (part 2 of 2), # 4 Exhibit C, # 5 Exhibit D (part 1 of 5), # 6 Exhibit D (part 2 of 5), # 7 Exhibit D (part 3 of 5), # 8 Exhibit D (part 4 of 5), # 9 Exhibit D (part 5 of 5), # 10 Exhibit E, # 11 Exhibit F (lodged under seal), # 12 Exhibit G (lodged under seal), # 13 Exhibit H (lodged under seal), # 14 Exhibit I (part 1 of 2), # 15 Exhibit I (part 2 of 2), # 16 Exhibit J, # 17 Exhibit K, # 18 Exhibit L (lodged under seal), # 19 Exhibit M (lodged under seal), # 20 Exhibit N (lodged under seal), # 21 Exhibit O (lodged under seal), # 22 Exhibit P (lodged under seal), # 23 Exhibit Q (lodged under seal), # 24 Exhibit R (lodged under seal), # 25 Exhibit S (lodged under seal), # 26 Exhibit T, # 27 Exhibit U (lodged under seal), # 28 Exhibit V (lodged under seal), # 29 Exhibit W (lodged under seal), # 30 Exhibit X (lodged under seal), # 31 Exhibit Y, # 32 Exhibit Z (lodged under seal))(Peek, Christine) (Filed on 9/19/2013) Modified on 9/20/2013 (dtmS, COURT STAFF). (Entered: 09/19/2013)
543 EXHIBITS re 542 Declaration in Opposition,,,, filed byRahinah Ibrahim. (Attachments: # 1 Exhibit AA, # 2 Exhibit BB, # 3 Exhibit CC, # 4 Exhibit DD (lodged under seal), # 5 Exhibit EE, # 6 Exhibit FF, # 7 Exhibit GG (lodged under seal), # 8 Exhibit HH (lodged under seal), # 9 Exhibit II (lodged under seal), # 10 Exhibit JJ, # 11 Exhibit KK (lodged under seal), # 12 Exhibit LL (lodged under seal), # 13 Exhibit MM (lodged under seal), # 14 Exhibit NN (part 1 of 2), # 15 Exhibit NN (part 2 of 2), # 16 Exhibit OO, # 17 Exhibit PP, # 18 Exhibit QQ, # 19 Exhibit RR, # 20 Exhibit SS, # 21 Exhibit TT, # 22 Exhibit UU (lodged under seal), # 23 Exhibit VV, # 24 Exhibit WW (lodged under seal), # 25 Exhibit XX, # 26 Exhibit YY, # 27 Exhibit ZZ)(Related document(s) 542 ) (Peek, Christine) (Filed on 9/19/2013) (Entered: 09/19/2013)
544 EXHIBITS re 542 Declaration in Opposition,,,, filed byRahinah Ibrahim. (Attachments: # 1 Exhibit AAA (lodged under seal), # 2 Exhibit BBB, # 3 Exhibit CCC, # 4 Exhibit DDD, # 5 Exhibit EEE, # 6 Exhibit FFF, # 7 Exhibit GGG, # 8 Exhibit HHH, # 9 Exhibit III, # 10 Exhibit JJJ,

09/19/2013 09/19/2013 09/19/2013 09/26/2013 09/26/2013 09/26/2013

# 11 Exhibit KKK, # 12 Exhibit LLL, # 13 Exhibit MMM, # 14 Exhibit NNN, # 15 Exhibit OOO, # 16 Exhibit PPP, # 17 Exhibit QQQ, # 18 Exhibit RRR, # 19 Exhibit SSS, # 20 Exhibit TTT, # 21 Exhibit UUU, # 22 Exhibit VVV (lodged under seal), # 23 Exhibit WWW (lodged under seal), # 24 Exhibit XXX (lodged under seal), # 25 Exhibit YYY (lodged under seal), # 26 Exhibit ZZZ)(Related document(s) 542 ) (Peek, Christine) (Filed on 9/19/2013) (Entered: 09/19/2013)
545 EXHIBITS re 542 Declaration in Opposition,,,, filed byRahinah Ibrahim. (Attachments: # 1 Exhibit AAAA, # 2 Exhibit BBBB, # 3 Exhibit CCCC (lodged under seal), # 4 Exhibit DDDD (lodged under seal), # 5 Exhibit EEEE (lodged under seal), # 6 Exhibit FFFF (lodged under seal), # 7 Exhibit GGGG, # 8 Exhibit HHHH)(Related document(s) 542 ) (Peek, Christine) (Filed on 9/19/2013) (Entered: 09/19/2013)
546 RESPONSE (re 534 MOTION for Summary Judgment ) MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO FEDERAL DEFENDANTS' MOTION FOR SUMMARY JUDGMENT filed byRahinah Ibrahim. (Peek, Christine) (Filed on 9/19/2013) (Entered: 09/19/2013)
547 Request for Judicial Notice re 546 Opposition/Response to Motion PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO FEDERAL DEFENDANTS' MOTION FOR SUMMARY JUDGMENT filed byRahinah Ibrahim. (Related document(s) 546 ) (Peek, Christine) (Filed on 9/19/2013) (Entered: 09/19/2013)
548 ORDER GRANTING IN PART AND DENYING IN PART MOTION TO COMPEL PRODUCTION OF UNCLASSIFIED DOCUMENTS (DKT. NO. 515) (REDACTED PUBLIC VERSION) re 515 Discovery Letter BriefREDACTED filed by Rahinah Ibrahim. Signed by Judge Alsup on September 26, 2013.. (whalc1, COURT STAFF) (Filed on 9/26/2013) (Entered: 09/26/2013)
549 REPLY (re 534 MOTION for Summary Judgment ) (Redacted) filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Theis, John) (Filed on 9/26/2013) (Entered: 09/26/2013)
550 Declaration of Paul Freeborne in Support of 549 Reply to Opposition/Response, filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge,

09/27/2013 09/27/2013
10/01/2013
10/01/2013 10/01/2013 10/01/2013 10/01/2013 10/01/2013

Terrorist Screening Center. (Attachments: # 1 Exhibit 14A, # 2 Exhibit 21A, # 3 Exhibit 37, # 4 Exhibit 38, # 5 Exhibit 39)(Related document(s) 549 ) (Theis, John) (Filed on 9/26/2013) (Entered: 09/26/2013)
551 ORDER RE SEALED DOCUMENT re 548 Order,. Signed by Judge Alsup on September 27, 2013.. (whalc1, COURT STAFF) (Filed on 9/27/2013) (Entered: 09/27/2013)
552 Letter Brief re: Expert Discovery filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Theis, John) (Filed on 9/27/2013) (Entered: 09/27/2013)
553 MOTION to Continue Deadlines in Light of Lapse in Appropriations filed by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Declaration of Paul G. Freeborne, # 2 Exhibit A, # 3 Proposed Order)(Freeborne, Paul) (Filed on 10/1/2013) (Entered: 10/01/2013)
554 MOTION to Remove Incorrectly Filed Document filed by Rahinah Ibrahim. (Peek, Christine) (Filed on 10/1/2013) (Entered: 10/01/2013)
555 Declaration of Christine Peek in Support of 554 MOTION to Remove Incorrectly Filed Document filed byRahinah Ibrahim. (Related document(s) 554 ) (Peek, Christine) (Filed on 10/1/2013) (Entered: 10/01/2013)
556 Proposed Order re 554 MOTION to Remove Incorrectly Filed Document by Rahinah Ibrahim. (Peek, Christine) (Filed on 10/1/2013) (Entered: 10/01/2013)
557 EXHIBITS re 542 Declaration in Opposition,,,, Exhibit A to Declaraton of Christine Peek in Support of Opposition to Defendants Motion for Summary Judgment CORRECTION OF DOCKET #542-1 filed byRahinah Ibrahim. (Related document(s) 542 ) (Peek, Christine) (Filed on 10/1/2013) (Entered: 10/01/2013)
558 EXHIBITS re 543 Exhibits,,, Exhibit JJ to the Declaration of Christine Peek in Support of Opposition to Defendants' Motion for Summary Judgment CORRECTION OF DOCKET #543-10 filed byRahinah

10/01/2013 10/01/2013 10/02/2013 10/02/2013 10/03/2013 10/03/2013 10/04/2013
10/04/2013
10/04/2013

Ibrahim. (Related document(s) 543 ) (Peek, Christine) (Filed on 10/1/2013) (Entered: 10/01/2013)
559 ORDER RE ADMINISTRATIVE ISSUES by Judge Alsup deferring ruling on 553 Motion to Continue; granting in part and denying in part 554 Motion to Remove Incorrectly Filed Document (whalc1, COURT STAFF) (Filed on 10/1/2013) (Entered: 10/01/2013)
Set/Reset Hearing re 552 Letter Brief, Discovery Hearing set for 10/10/2013 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. (dt, COURT STAFF) (Filed on 10/1/2013) (Entered: 10/02/2013)
560 RESPONSE to re 552 Letter Brief, Plaintiff's Redacted Response to Defendants Sept. 27, 2013 Letter Brief (Dkt. #552) by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 10/2/2013) (Entered: 10/02/2013)
561 ORDER RE SERVICE LIST. Signed by Judge Alsup on October 2, 2013. (whalc1, COURT STAFF) (Filed on 10/2/2013) (Entered: 10/02/2013)
562 RESPONSE (re 553 MOTION to Continue Deadlines in Light of Lapse in Appropriations ) Plaintiff's Response to Administrative Motion for a Stay of Summary Judgment and Pretrial Deadlines, and Trial, in Light of Lapse of Appropriations filed byRahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 10/3/2013) (Entered: 10/03/2013)
563 RESPONSE (re 534 MOTION for Summary Judgment ) Plaintiff's Objection to and Motion to Strike Reply Evidence Submitted in Support of Motion for Summary Judgment filed byRahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 10/3/2013) (Entered: 10/03/2013)
564 Witness List by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center . (Farel, Lily) (Filed on 10/4/2013) (Entered: 10/04/2013)
565 Exhibit List (REDACTED) by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center.. (Farel, Lily) (Filed on 10/4/2013) (Entered: 10/04/2013)
566 RESPONSE to re 563 Opposition/Response to Motion, by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State,

10/04/2013 10/04/2013 10/08/2013 10/08/2013 10/17/2013 10/17/2013 10/17/2013 10/18/2013
10/21/2013

Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Farel, Lily) (Filed on 10/4/2013) (Entered: 10/04/2013)
567 REDACTION Plaintiff's Document Disclosures Pursuant to Rule 26(a)(3)(A)(iii) of the Federal Rules of Civil Procedure and the Guidelines for Trial and Final Pretrial Conference in Civil Bench Cases Before the Honorable William Alsup by Rahinah Ibrahim. (Peek, Christine) (Filed on 10/4/2013) (Entered: 10/04/2013)
568 REDACTION Plaintiff's Witness Disclosures Pursuant to Rule 26(a)(3)(A)(i)-(ii) of the Federal Rules of Civil Procedure and the Guidelines for Trial and Final Pretrial Conference in Civil Bench Cases Before the Honorable William Alsup by Rahinah Ibrahim. (Peek, Christine) (Filed on 10/4/2013) (Entered: 10/04/2013)
569 ORDER STAYING SUMMARY JUDGMENT AND PRETRIAL DEADLINES by Hon. William Alsup granting 553 Motion to Continue.(whalc1, COURT STAFF) (Filed on 10/8/2013) (Entered: 10/08/2013)
Set/Reset Hearing re 552 Letter Brief, 534 MOTION for Summary Judgment , 569 Order on Motion to Continue (whalc1, COURT STAFF) (Filed on 10/8/2013) (Entered: 10/08/2013)
570 NOTICE by Rahinah Ibrahim Notice of Unavailability of Counsel (Peek, Christine) (Filed on 10/17/2013) (Entered: 10/17/2013)
571 ORDER LIFTING STAY AND REQUESTING SUBMISSIONS RE SUMMARY JUDGMENT AND TRIAL DEADLINES. Signed by Judge Alsup on October 17, 2013. (whalc1, COURT STAFF) (Filed on 10/17/2013) (Entered: 10/17/2013)
572 RESPONSE to re 571 Order Plaintiff's Submission Regarding Summary Judgment and Trial Deadlines by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 10/17/2013) (Entered: 10/17/2013)
573 RESPONSE to the Court's Order 571 by Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Terrorist Screening Center re 571 Order (Farel, Lily) (Filed on 10/18/2013) Modified on 10/18/2013 (dtmS, COURT STAFF). (Entered: 10/18/2013)
574 ORDER SETTING SUMMARY JUDGMENT AND PRETRIAL SCHEDULE (CASE MANAGEMENT SCHEDULING ORDER): Bench Trial set for 12/2/2013 07:30 AM before Hon. William Alsup. Pretrial Conference set for 11/15/2013 09:00 AM in Courtroom 8,

10/21/2013 10/21/2013 10/22/2013 10/23/2013 10/23/2013 10/24/2013
10/24/2013

19th Floor, San Francisco before Hon. William Alsup.. Signed by Judge Alsup on October 21, 2013. (whalc1, COURT STAFF) (Filed on 10/21/2013) (Entered: 10/21/2013)
Set/Reset Hearing re 574 Order, Case Management Scheduling Order, Set Trial Management Order Deadlines. Pretrial Conference set for 11/19/2013 09:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. (dt, COURT STAFF) (Filed on 10/21/2013) (Entered: 10/22/2013)
CORRECT DATE FOR PRETRIAL CONFERENCE [11/15/2013]. Set/Reset Hearing re 574 Order, Case Management Scheduling Order, Set Trial Management Order Deadlines, Set/Reset Hearings. Pretrial Conference set for 11/15/2013 09:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. (dt, COURT STAFF) (Filed on 10/21/2013) (Entered: 10/29/2013)
Set/Reset Deadlines as to 534 MOTION for Summary Judgment . Motion Hearing set for 10/31/2013 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. (whalc1, COURT STAFF) (Filed on 10/22/2013) (Entered: 10/22/2013)
575 Supplemental Brief re 574 Order, Case Management Scheduling Order, Set Trial Management Order Deadlines,,, Redacted Supplemental Memorandum of Points and Authorities in Opposition to Federal Defendants' Motion for Summary Judgment filed byRahinah Ibrahim. (Related document(s) 574 ) (Pipkin, Elizabeth) (Filed on 10/23/2013) (Entered: 10/23/2013)
576 ORDER REQUESTING STATUS REPORT ON PENDING DISCOVERY DISPUTE Status Report due by 10/24/2013 at Noon.. Signed by Judge Alsup on October 23, 2013. (whalc1, COURT STAFF) (Filed on 10/23/2013) (Entered: 10/23/2013)
577 STATUS REPORT Joint Status Report by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Bloom, Karen) (Filed on 10/24/2013) (Entered: 10/24/2013)
578 Supplemental Brief re 534 MOTION for Summary Judgment REDACTED filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge,

10/24/2013 10/24/2013
10/25/2013
10/25/2013 10/25/2013 10/28/2013
10/29/2013 10/30/2013

Terrorist Screening Center. (Related document(s) 534 ) (Theis, John) (Filed on 10/24/2013) (Entered: 10/24/2013)
579 REQUEST RE SEALED INFORMATION AT THE OCTOBER 31 HEARING. Signed by Judge Alsup on October 24, 2013. (whalc1, COURT STAFF) (Filed on 10/24/2013) (Entered: 10/24/2013)
580 ORDER RE EXPERT DISCOVERY DISPUTES re 552 Letter Brief, filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Arthur M. Cummings, II, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Department of Homeland Security, Terrorist Screening Center, Leonard C. Boyle, Robert Mueller, Donna A. Bucella, 576 Status Report Order. Signed by Judge Alsup on October 24, 2013. (whalc1, COURT STAFF) (Filed on 10/24/2013) (Entered: 10/24/2013)
581 RESPONSE to re 579 Order by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Farel, Lily) (Filed on 10/25/2013) (Entered: 10/25/2013)
582 RESPONSE to re 580 Order,, Letter in Response to Court's Order Re Expert Discovery Disputes by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 10/25/2013) (Entered: 10/25/2013)
583 RESPONSE to re 579 Order Letter in Response to the Court's Request re Sealed Information at the October 31 Hearing by Rahinah Ibrahim. (Peek, Christine) (Filed on 10/25/2013) (Entered: 10/25/2013)
584 RESPONSE to re 582 Response ( Non Motion ) by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Bloom, Karen) (Filed on 10/28/2013) (Entered: 10/28/2013)
585 ORDER RE REQUEST FOR EXTENSION. Signed by Judge Alsup on October 29, 2013.. (whalc1, COURT STAFF) (Filed on 10/29/2013) (Entered: 10/29/2013)
586 NOTICE RE SUMMARY JUDGMENT HEARING. Signed by Judge Alsup on October 30, 2013.. (whalc1, COURT STAFF) (Filed on 10/30/2013) (Entered: 10/30/2013)

10/31/2013 10/31/2013
10/31/2013 11/01/2013 11/01/2013
11/04/2013 11/08/2013

587 TRANSCRIPT ORDER by Rahinah Ibrahim for Court Reporter Jo Ann Bryce. (Pipkin, Elizabeth) (Filed on 10/31/2013) (Entered: 10/31/2013)
588 Minute Entry: Motion Hearing held on 10/31/2013 before Judge William Alsup (Date Filed: 10/31/2013) re 534 MOTION for Summary Judgment filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Arthur M. Cummings, II, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Department of Homeland Security, Terrorist Screening Center, Leonard C. Boyle, Robert Mueller, Donna A. Bucella. (Court Reporter Joann Bryce.) (dt, COURT STAFF) (Date Filed: 10/31/2013) (Entered: 10/31/2013)
590 Exhibit Location for Court Exhibit 1 from 10/31/2013 Hearing. (dtmS, COURT STAFF) (Filed on 10/31/2013) (Entered: 11/01/2013)
589 TRANSCRIPT ORDER by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center for Court Reporter Jo Ann Bryce. (Bloom, Karen) (Filed on 11/1/2013) (Entered: 11/01/2013)
591 Transcript of Proceedings held on 10/31/13, before Judge William H. Alsup. Court Reporter Jo Ann Bryce, Telephone number 510-910-5888, email: joann_bryce@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction after 90 days. After that date, it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 11/22/2013. Redacted Transcript Deadline set for 12/2/2013. Release of Transcript Restriction set for 1/30/2014. (Related documents(s) 587 , 589 ) (Bryce, Joann) (Filed on 11/1/2013) (Entered: 11/01/2013)
592 ORDER by Judge William Alsup granting in part and denying in part 534 Motion for Summary Judgment. FILED UNDER SEAL (gbaS, COURT STAFF) (Filed on 11/4/2013) (gbaS, COURT STAFF). (Entered: 11/04/2013)
593 NOTICE by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center of Compliance with the Court's Order (Attachments: # 1 Redacted Order)(Farel, Lily) (Filed on 11/8/2013) (Entered: 11/08/2013)

11/11/2013 11/11/2013 11/11/2013 11/11/2013 11/12/2013
11/12/2013 11/12/2013 11/12/2013

594 MOTION in Limine Plaintiff's Motion in Limine No. 1 to Exclude Evidence Submitted Ex Parte by Defendants and Not Ordered Produced to Plaintiff filed by Rahinah Ibrahim. Responses due by 11/25/2013. Replies due by 12/2/2013. (Attachments: # 1 Defendants' Opposition)(Pipkin, Elizabeth) (Filed on 11/11/2013) (Entered: 11/11/2013)
595 MOTION in Limine Plaintiff's Motion in Limine No. 2 to Exclude Witnesses Not Permitted to be Deposed by Plaintiff filed by Rahinah Ibrahim. Responses due by 11/25/2013. Replies due by 12/2/2013. (Attachments: # 1 Defendants' Opposition)(Pipkin, Elizabeth) (Filed on 11/11/2013) (Entered: 11/11/2013)
596 REDACTION Plaintiff's Document Disclosures Pursuant to Rule 26(a)(3)(A)(iii) of the Federal Rules of Civil Procedure and the Guidelines for Trial and Final Pretrial Conference in Civil Bench Cases Before The Honorable William Alsup - REDACTED by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 11/11/2013) (Entered: 11/11/2013)
597 REDACTION Plaintiff's Witness Disclosures Pursuant to Rule 26(a)(3)(A)(i)-(ii) of the Federal Rules of Civil Procedure and the Guidelines for Trial and Final Pretrial Conference in Civil Bench Cases Before The Honorable William Alsup - REDACTED by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 11/11/2013) (Entered: 11/11/2013)
598 Proposed Findings of Fact by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center [redacted]. (Farel, Lily) (Filed on 11/12/2013) (Entered: 11/12/2013)
599 *LOCKED*, Document Contains Sealed Information TRIAL BRIEF Plaintiff's Trial Brief - Redacted by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 11/12/2013) Modified on 11/14/2013 (dtmS, COURT STAFF). Modified on 11/14/2013 (dtmS, COURT STAFF). (Entered: 11/12/2013)
600 Proposed Findings of Fact by Rahinah Ibrahim Plaintiff's Proposed Findings of Fact and Conclusions of Law - Redacted. (Pipkin, Elizabeth) (Filed on 11/12/2013) (Entered: 11/12/2013)
601 Proposed Pretrial Order Joint Proposed Final Pretrial Order by Rahinah Ibrahim. (Attachments: # 1 Appendix Appendix A - Joint Exhibit List, # 2 Appendix Appendix B - Plaintiff's Witness List, # 3 Appendix Appendix C - Defendants' Fed.R. Civ. P 26(a)(3) Witness List)(Pipkin, Elizabeth) (Filed on 11/12/2013) (Entered: 11/12/2013)

11/12/2013 11/12/2013 11/12/2013 11/12/2013 11/12/2013

602 TRIAL BRIEF Redacted by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Theis, John) (Filed on 11/12/2013) (Entered: 11/12/2013)
603 NOTICE by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center re 602 Trial Brief, Notice of Lodging Exhibit B to Trial Brief for in camera, ex parte review (Farel, Lily) (Filed on 11/12/2013) (Entered: 11/12/2013)
604 MOTION in Limine No. 1 to Exclude Proferred Expert Testimony filed by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. Motion Hearing set for 11/15/2013 09:00 AM before Hon. William Alsup. Responses due by 11/8/2013. (Attachments: # 1 Plaintiff's Opposition)(Bloom, Karen) (Filed on 11/12/2013) (Entered: 11/12/2013)
605 MOTION in Limine No. 2 to Exclude Proffered Fact Witnesses filed by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. Motion Hearing set for 11/15/2013 09:00 AM before Hon. William Alsup. Responses due by 11/8/2013. (Attachments: # 1 Plaintiff's Opposition)(Bloom, Karen) (Filed on 11/12/2013) (Entered: 11/12/2013)
606 MOTION in Limine No. 3 to Exclude Proffered Exhibits filed by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. Motion Hearing set for 11/15/2013 09:00 AM before Hon. William Alsup. Responses due by 11/8/2013. (Attachments: # 1 Plaintiff's Opposition)(Bloom, Karen) (Filed on 11/12/2013) (Entered: 11/12/2013)

11/12/2013
11/13/2013 11/13/2013 11/13/2013 11/13/2013 11/13/2013 11/14/2013

607 Declaration of Christine Peek in Support of 606 MOTION in Limine No. 3 to Exclude Proffered Exhibits, 605 MOTION in Limine No. 2 to Exclude Proffered Fact Witnesses, 604 MOTION in Limine No. 1 to Exclude Proferred Expert Testimony Declaration of Christine Peek in Support of Plaintiff's Oppositions to Defendants' Motions in Limine Nos. 1, 2 and 3 filed byRahinah Ibrahim. (Attachments: # 1 Exhibit Exhibit A - Lodged Under Seal, # 2 Exhibit Exhibit B - Lodged Under Seal, # 3 Exhibit Exhibit C - Lodged Under Seal, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G, # 8 Exhibit Exhibit H, # 9 Exhibit Exhibit I, # 10 Exhibit Exhibit J, # 11 Exhibit Exhibit K, # 12 Exhibit Exhibit L - Lodged Under Seal, # 13 Exhibit Exhibit M, # 14 Exhibit Exhibit N)(Related document(s) 606 , 605 , 604 ) (Pipkin, Elizabeth) (Filed on 11/12/2013) (Entered: 11/12/2013)
608 ADDENDUM to 604 Motion in Limine No 1 by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center (Bloom, Karen) (Filed on 11/13/2013) Modified on 11/13/2013 (dtmS, COURT STAFF). (Entered: 11/13/2013)
609 Brief in Response to the Court's Inquiry Regarding Public Access to Sensitive Information (Redacted) filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Declaration)(Theis, John) (Filed on 11/13/2013) (Entered: 11/13/2013)
610 MOTION to Remove Incorrectly Filed Document Plaintiff's Motion to Remove Incorrectly Filed Document from Docket; Docket Number 599 filed by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 11/13/2013) (Entered: 11/13/2013)
611 Proposed Order re 610 MOTION to Remove Incorrectly Filed Document Plaintiff's Motion to Remove Incorrectly Filed Document from Docket; Docket Number 599 by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 11/13/2013) (Entered: 11/13/2013)
612 TRIAL BRIEF Plaintiff's Trial Brief - Redacted - CORRECTION OF DOCKET # 599 by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 11/13/2013) (Entered: 11/13/2013)
613 ORDER RE CLASSIFIED EXHIBIT AND BRIEF ON PUBLIC ACCESS re 609 Brief, filed by Tom Ridge, National

11/15/2013 11/15/2013
11/15/2013

Counterterrorism Center, Eric H. Holder, Jr., Arthur M. Cummings, II, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Terrorist Screening Center, Leonard C. Boyle, Robert Mueller, Donna A. Bucella, 602 Trial Brief, filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Arthur M. Cummings, II, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Department of Homeland Security, Terrorist Screening Center, Leonard C. Boyle, Donna A. Bucella, Robert Mueller. Signed by Judge Alsup on November 14, 2013. (whalc1, COURT STAFF) (Filed on 11/14/2013) (Entered: 11/14/2013)
614 TRANSCRIPT ORDER by Rahinah Ibrahim for Court Reporter Debra Pas. (Pipkin, Elizabeth) (Filed on 11/15/2013) (Entered: 11/15/2013)
615 Minute Entry: Pretrial Conference (Date Filed: 11/15/2013). Bench Trial set for 12/2/2013 7:30 AM. Each side shall have 10 hours for case-inchief. (Court Reporter Debra Pas.) (dt, COURT STAFF) (Date Filed: 11/15/2013) (Entered: 11/15/2013)
616 FINAL PRETRIAL ORDER, Motions terminated: 604 MOTION in Limine No. 1 to Exclude Proferred Expert Testimony filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Arthur M. Cummings, II, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Department of Homeland Security, Terrorist Screening Center, Leonard C. Boyle, Robert Mueller, Donna A. Bucella, 595 MOTION in Limine Plaintiff's Motion in Limine No. 2 to Exclude Witnesses Not Permitted to be Deposed by Plaintiff filed by Rahinah Ibrahim, 606 MOTION in Limine No. 3 to Exclude Proffered Exhibits filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Arthur M. Cummings, II, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Department of Homeland Security, Terrorist Screening Center, Leonard C. Boyle, Donna A. Bucella, Robert Mueller, 605 MOTION in Limine No. 2 to Exclude Proffered Fact Witnesses filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Arthur M. Cummings, II, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Department of Homeland Security, Terrorist Screening Center, Leonard C. Boyle, Donna A. Bucella, Robert Mueller, 594 MOTION in Limine Plaintiff's Motion in Limine No. 1 to Exclude Evidence Submitted Ex Parte by Defendants and Not Ordered Produced to Plaintiff filed by Rahinah Ibrahim.. Signed by Judge Alsup on

11/18/2013 11/18/2013 11/18/2013 11/18/2013
11/19/2013 11/24/2013

November 15, 2013. (whalc1, COURT STAFF) (Filed on 11/15/2013) (Entered: 11/15/2013)
617 TRANSCRIPT ORDER by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center for Court Reporter Debra Pas. (Theis, John) (Filed on 11/18/2013) (Entered: 11/18/2013)
Set/Reset Hearing re 616 Pretrial Order. Bench Trial set for 12/2/2013 07:30 AM, 12/3/2013 07:30 AM, 12/4/2013 07:30 AM, 12/5/2013 07:30 AM, 12/6/2013 07:30 AM, 12/9/2013 07:30 AM before Hon. William Alsup. (dt, COURT STAFF) (Filed on 11/18/2013) (Entered: 11/18/2013)
618 Minute Entry: Telephonic Settlement Conference held on November 18, 2013 before Magistrate Judge Jacqueline Scott Corley (Date Filed: 11/18/2013). Further facilitated discussions contemplated. (Court Reporter: Not Reported) (ahm, COURT STAFF) (Date Filed: 11/18/2013) (Entered: 11/18/2013)
619 Transcript of Proceedings held on 11-15-2013, before Judge William H. Alsup. Court Reporter/Transcriber Debra L. Pas, CRR, Telephone number (415) 431-1477/Email: Debra_Pas@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 2/18/2014. (Related documents(s) 614 ) (Pas, Debra) (Filed on 11/18/2013) (Entered: 11/18/2013)
620 RESPONSE to re 609 Brief, Plaintiff's Response Regarding Public Access to Information Designated by Defendants as "Sensitive Security Information" by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 11/19/2013) (Entered: 11/19/2013)
621 TRANSCRIPT ORDER for Daily Trial by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Theis, John) (Filed on 11/24/2013) (Entered: 11/24/2013)

11/25/2013 11/25/2013
11/26/2013
11/27/2013 11/29/2013 11/29/2013 11/30/2013 12/01/2013

622 TRANSCRIPT ORDER for Daily Trial by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 11/25/2013) (Entered: 11/25/2013)
623 Discovery Letter Brief filed by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Exhibit)(Bloom, Karen) (Filed on 11/25/2013) (Entered: 11/25/2013)
624 Letter Brief (Amended) filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Exhibit)(Bloom, Karen) (Filed on 11/26/2013) (Entered: 11/26/2013)
625 ORDER RE BRIEFING EXPERT DISCOVERY DISPUTE. Signed by Judge Alsup on November 27, 2013. (whalc1, COURT STAFF) (Filed on 11/27/2013) (Entered: 11/27/2013)
626 Letter from Elizabeth Pipkin pursuant to Court's Order re Briefing Expert Discovery Dispute (Dkt. No. 625). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Pipkin, Elizabeth) (Filed on 11/29/2013) (Entered: 11/29/2013)
627 SECOND ORDER RE EXPERT DISCOVERY DISPUTE. Signed by Judge Alsup on 11/29/2013. (whalc3, COURT STAFF) (Filed on 11/29/2013) (Entered: 11/29/2013)
628 STIPULATION RE: TRIAL EXHIBITS filed by Rahinah Ibrahim. (Peek, Christine) (Filed on 11/30/2013) (Entered: 11/30/2013)
629 NOTICE by Rahinah Ibrahim Plaintiff's Request for Judicial Notice at Trial - Redacted (Attachments: # 1 Exhibit A - Part 1 of 57, # 2 Exhibit A - Part 2 of 57, # 3 Exhibit A - Part 3 of 57, # 4 Exhibit A - Part 4 of 57, # 5 Exhibit A - Part 5 of 57, # 6 Exhibit A - Part 6 of 57, # 7 Exhibit A Part 7 of 57, # 8 Exhibit A - Part 8 of 57, # 9 Exhibit A - Part 9 of 57, # 10 Exhibit A - Part 10 of 57, # 11 Exhibit A - Part 11 of 57, # 12 Exhibit A - Part 12 of 57, # 13 Exhibit A - Part 13 of 57, # 14 Exhibit A - Part 14 of 57, # 15 Exhibit A - Part 15 of 57, # 16 Exhibit A - Part 16 of 57, # 17 Exhibit A - Part 17 of 57, # 18 Errata A - Part 18 of 57, # 19 Exhibit A - Part 19 of 57, # 20 Exhibit A - Part 20 of 57, # 21 Exhibit A - Part 21 of 57, # 22 Exhibit A - Part 22 of 57, # 23 Exhibit A - Part 23 of 57, # 24 Exhibit A - Part 24 of 57, # 25 Exhibit A - Part 25 of 57, # 26 Exhibit A - Part 26 of 57, # 27 Exhibit A - Part 27 of 57, # 28 Exhibit A - Part 28 of 57,

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# 29 Exhibit A - Part 29 of 57)(Peek, Christine) (Filed on 12/1/2013) (Entered: 12/01/2013)
630 EXHIBITS re 629 Notice (Other),,,, Plaintiff's Request for Judical Notice at Trial - Redacted (Part 2) filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A - Part 30 of 57, # 2 Exhibit A - Part 31 of 57, # 3 Exhibit A - Part 32 of 57, # 4 Exhibit A - Part 33 of 57, # 5 Exhibit A - Part 34 of 57, # 6 Exhibit A - Part 35 of 57, # 7 Exhibit A - Part 36 of 57, # 8 Exhibit A - Part 37 of 57, # 9 Exhibit A - Part 38 of 57, # 10 Exhibit A - Part 39 of 57, # 11 Exhibit A - Part 40 of 57, # 12 Exhibit A - Part 41 of 57, # 13 Exhibit A - Part 42 of 57, # 14 Exhibit A - Part 43 of 57, # 15 Exhibit A - Part 44 of 57, # 16 Exhibit A - Part 45 of 57, # 17 Exhibit A - Part 46 of 57, # 18 Exhibit A - Part 47 of 57, # 19 Exhibit A - Part 48 of 57, # 20 Exhibit A - Part 49 of 57, # 21 Exhibit A - Part 50 of 57, # 22 Exhibit A - Part 51 of 57, # 23 Exhibit A - Part 52 of 57, # 24 Exhibit A - Part 53 of 57, # 25 Exhibit A - Part 54 of 57, # 26 Exhibit A - Part 55 of 57, # 27 Exhibit A - Part 56 of 57, # 28 Exhibit A - Part 57 of 57)(Related document(s) 629 ) (Peek, Christine) (Filed on 12/1/2013) (Entered: 12/01/2013)
631 EXHIBITS re 629 Notice (Other),,,, Plaintiff's Request for Judicial Notice at Trial - Redacted (Part 3) filed byRahinah Ibrahim. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G)(Related document(s) 629 ) (Peek, Christine) (Filed on 12/1/2013) (Entered: 12/01/2013)
632 ORDER REGARDING PLAINTIFFS REQUEST FOR JUDICIAL NOTICE. Signed by Judge Alsup on December 1, 2013. (whalc1, COURT STAFF) (Filed on 12/1/2013) (Entered: 12/01/2013)
633 STIPULATION Second Stipulation re Trial Exhibits filed by Rahinah Ibrahim. (Peek, Christine) (Filed on 12/2/2013) (Entered: 12/02/2013)
634 ORDER DENYING AS MOOT MOTION TO REMOVE INCORRECTLY FILED DOCUMENT AND SEALING DKT. NO. 599 by Hon. William Alsup denying 610 Motion to Remove Incorrectly Filed Document.(whalc1, COURT STAFF) (Filed on 12/2/2013) (Entered: 12/02/2013)
635 Transcript of Bench Trial Proceedings, Volume 1, held on 12-2-2013, before Judge William H. Alsup. Court Reporter/Transcriber Debra L. Pas, CRR, Telephone number (415) 431-1477/Email: Debra_Pas@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5

12/02/2013
12/02/2013
12/02/2013 12/02/2013 12/02/2013 12/02/2013 12/03/2013
12/03/2013

business days from date of this filing. Release of Transcript Restriction set for 3/3/2014. (Pas, Debra) (Filed on 12/2/2013) (Entered: 12/02/2013)
636 Brief in Response to the Court's Question Regarding the Sensitivity of Information Related to Status in the Terrorist Screening Database filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Terrorist Screening Center. (Farel, Lily) (Filed on 12/2/2013) (Entered: 12/02/2013)
637 NOTICE by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Terrorist Screening Center Re Tentative Ruling on the Admissibility of Evidence (Theis, John) (Filed on 12/2/2013) (Entered: 12/02/2013)
638 NOTICE by Rahinah Ibrahim Plaintiff's Brief Regarding Expert Jeffrey Kahn's Documents (Attachments: # 1 Exhibit)(Pipkin, Elizabeth) (Filed on 12/2/2013) (Entered: 12/02/2013)
639 Declaration of Jeffrey Kahn in Support of 638 Notice (Other) Plaintiff's Brief Regarding Expert Jeffrey Kahn's Documents filed byRahinah Ibrahim. (Related document(s) 638 ) (Pipkin, Elizabeth) (Filed on 12/2/2013) (Entered: 12/02/2013)
640 NOTICE by Rahinah Ibrahim Plaintiff's Brief Re: Trial Exhibit 30 and Plaintiff's Testimony (Pipkin, Elizabeth) (Filed on 12/2/2013) (Entered: 12/02/2013)
653 Minute Entry: Bench Trial held on 12/2/2013 before Judge William Alsup (Date Filed: 12/6/2013). (Court Reporter Debra Pas.) (dt, COURT STAFF) (Date Filed: 12/6/2013) (Entered: 12/06/2013)
641 NOTICE by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center Memorandum Regarding Defendants' Objections to Plaintiff's Deposition Designations (Theis, John) (Filed on 12/3/2013) (Entered: 12/03/2013)
642 RESPONSE to re 638 Notice (Other) by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau

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12/04/2013
12/04/2013 12/05/2013 12/05/2013 12/05/2013

of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Bloom, Karen) (Filed on 12/3/2013) (Entered: 12/03/2013)
654 Minute Entry: Bench Trial held on 12/3/2013 before Judge William Alsup (Date Filed: 12/3/2013). Witnesses called. Further Bench Trial set for 12/4/2013 7:30 AM. (Court Reporter Debra Pas.) (dt, COURT STAFF) (Date Filed: 12/3/2013) (Entered: 12/06/2013)
643 RESPONSE to Plaintiff's Request for Judicial Notice by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center (Theis, John) (Filed on 12/4/2013) Modified on 12/5/2013 (farS, COURT STAFF). (Entered: 12/04/2013)
644 MOTION Retain Confidentiality of Materials Subject to Protective Order filed by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Terrorist Screening Center. Motion Hearing set for 1/2/2014 08:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 12/18/2013. Replies due by 12/26/2013. (Attachments: # 1 Declaration of Paul Freeborne, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Farel, Lily) (Filed on 12/4/2013) (Entered: 12/04/2013)
655 MAIN DOCUMENT LOCKED. SEE ATTACHMENT. Minute Entry: Bench Trial held on 12/4/2013 before Judge William Alsup (Date Filed: 12/4/2013). Witnesses called. Further Bench Trial set for 12/5/2013 7:30 AM. (Court Reporter Debra Pas.) (dt, COURT STAFF) (Date Filed: 12/4/2013) Modified on 12/6/2013 (dtS, COURT STAFF). (Additional attachment(s) added on 12/6/2013: # 1 Amended Minute Order) (dtS, COURT STAFF). (Entered: 12/06/2013)
645 NOTICE of Appearance by Diane Kelleher on behalf of Federal Defendants (Kelleher, Diane) (Filed on 12/5/2013) (Entered: 12/05/2013)
646 ORDER RE EXPERT JEFFREY KAHN by Hon. William Alsup finding as moot 623 Discovery Letter Brief.(whalc1, COURT STAFF) (Filed on 12/5/2013) (Entered: 12/05/2013)
647 ORDER RE HEARSAY AND LEADING OBJECTIONS RE TX 30 AND ASSOCIATED QUESTIONS. Signed by Judge Alsup on

12/05/2013
12/05/2013
12/05/2013
12/06/2013 12/06/2013 12/06/2013 12/06/2013 12/06/2013

December 5, 2013. (whalc1, COURT STAFF) (Filed on 12/5/2013) (Entered: 12/05/2013)
648 RESPONSE to the Court's Question Regarding Sensitive Security Information by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, Tom Ridge, Terrorist Screening Center (Farel, Lily) (Filed on 12/5/2013) Modified on 12/6/2013 (farS, COURT STAFF). (Entered: 12/05/2013)
649 MOTION for Assertion of the Law Enforcement Privilege filed by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. Motion Hearing set for 1/9/2014 08:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 12/19/2013. Replies due by 12/26/2013. (Attachments: # 1 Declaration of Maureen Dugan)(Farel, Lily) (Filed on 12/5/2013) (Entered: 12/05/2013)
656 MAIN DOCUMENT LOCKED. SEE ATTACHMENT. Minute Entry: Bench Trial held on 12/5/2013 before Judge William Alsup (Date Filed: 12/5/2013). Witnesses called. Further Bench Trial set for 12/6/2013 7:30 AM. (Court Reporter Debra Pas.) (dt, COURT STAFF) (Date Filed: 12/5/2013) Modified on 12/6/2013 (dtS, COURT STAFF). (Additional attachment(s) added on 12/6/2013: # 1 Amended Minute Order) (dtS, COURT STAFF). (Entered: 12/06/2013)
650 Declaration of Rahinah Ibrahim Re: Visa Application filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Pipkin, Elizabeth) (Filed on 12/6/2013) (Entered: 12/06/2013)
651 Declaration of Raihan Binti Mustafa Kamal in Support of Plaintiff's Response to Declaration of Maureen Dugan filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Pipkin, Elizabeth) (Filed on 12/6/2013) (Entered: 12/06/2013)
652 ORDER REGARDING FORMAT OF PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER BENCH TRIAL. Signed by Judge Alsup on December 6, 2013. (whalc1, COURT STAFF) (Filed on 12/6/2013) (Entered: 12/06/2013)
659 *SEALED* Joint Exhibit List. (dtmS, COURT STAFF) (Filed on 12/6/2013) (Entered: 12/09/2013)
660 Minute Entry: Bench Trial completed on 12/6/2013 before Judge William Alsup (Date Filed: 12/6/2013). Trial Exhibits deposited in the Clerk's

12/07/2013 12/07/2013 12/09/2013 12/10/2013 12/10/2013 12/13/2013
12/13/2013
12/13/2013 12/18/2013

Office. (Court Reporter Debra Pas.) (dt, COURT STAFF) (Date Filed: 12/6/2013) (Entered: 12/09/2013)
655 RESPONSE to re 648 Notice (Other), PLAINTIFFS BRIEF RE: DEFENDANTS RESPONSE TO THE COURTS QUESTION REGARDING SENSITIVE SECURITY INFORMATION by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 12/7/2013) (Entered: 12/07/2013)
657 REQUEST FOR SUBMISSIONS RE SSI VERSUS SECRET STANDARDS. Signed by Judge Alsup on December 7, 2013. (whalc1, COURT STAFF) (Filed on 12/7/2013) (Entered: 12/07/2013)
658 NOTICE by Rahinah Ibrahim Plaintiff's Response to the Court Regarding Plaintiff's Daughter (Pipkin, Elizabeth) (Filed on 12/9/2013) (Entered: 12/09/2013)
661 ORDER RE PLAINTIFFS RESPONSE RE PLAINTIFFS DAUGHTER re 658 Notice (Other) filed by Rahinah Ibrahim. Signed by Judge Alsup on December 10, 2013. (whalc1, COURT STAFF) (Filed on 12/10/2013) (Entered: 12/10/2013)
662 Exhibit (Sealed and Non-Sealed) Location, Bench Trial Dec 3 - 6, 2013. (dtmS, COURT STAFF) (Filed on 12/10/2013) (Entered: 12/10/2013)
663 NOTICE of Lodging in Camera, Ex Parte Materials by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center (Farel, Lily) (Filed on 12/13/2013) Modified on 12/13/2013 (dtmS, COURT STAFF). (Entered: 12/13/2013)
664 RESPONSE re 657 Order by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center (Theis, John) (Filed on 12/13/2013) Modified on 12/13/2013 (dtmS, COURT STAFF). (Entered: 12/13/2013)
665 BRIEF re SSI vs Secret Standards by Rahinah Ibrahim re 657 Order (Pipkin, Elizabeth) (Filed on 12/13/2013) Modified on 12/16/2013 (dtmS, COURT STAFF). (Entered: 12/13/2013)
666 ORDER RE CLEARANCE. Signed by Judge Alsup on December 18, 2013. (whalc1, COURT STAFF) (Filed on 12/18/2013) (Entered: 12/18/2013)

12/20/2013 12/23/2013 12/23/2013 12/23/2013
12/30/2013
12/30/2013

667 NOTICE of Lodging in Camera Ex Parte Materials. by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center (Farel, Lily) (Filed on 12/20/2013) Modified on 12/20/2013 (dtmS, COURT STAFF). (Entered: 12/20/2013)
668 ORDER VACATING JANUARY 2 AND 9 HEARINGS. Signed by Judge Alsup on December 23, 2013. (whalc1, COURT STAFF) (Filed on 12/23/2013) (Entered: 12/23/2013)
669 RESPONSE to re 666 Order by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 12/23/2013) Modified on 12/23/2013 (dtmS, COURT STAFF). (Entered: 12/23/2013)
670 Response to the Court's Order Requesting Briefing on Access by Opposing Counsel to Classified Information by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center re 666 Order (Theis, John) (Filed on 12/23/2013) Modified on 12/23/2013 (dtmS, COURT STAFF). (Entered: 12/23/2013)
671 Transcript of Bench Trial Proceedings (Redacted) held on 12-2-2013, before Judge William H. Alsup. Court Reporter/Transcriber Debra L. Pas, CRR, Telephone number (415) 431-1477/Email: Debra_Pas@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 3/31/2014. (Related documents(s) 621 , 622 ) (Pas, Debra) (Filed on 12/30/2013) (Entered: 12/30/2013)
672 Transcript of Bench Trial Proceedings (Redacted) held on 12-3-2013, before Judge William H. Alsup. Court Reporter/Transcriber Debra L. Pas, CRR, Telephone number (415) 431-1477/Email: Debra_Pas@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any

12/30/2013 12/30/2013 12/30/2013 12/30/2013

Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 3/31/2014. (Pas, Debra) (Filed on 12/30/2013) (Entered: 12/30/2013)
673 Transcript of Bench Trial Proceedings (Redacted) held on 12-4-2013, before Judge William H. Alsup. Court Reporter/Transcriber Debra L. Pas, CRR, Telephone number (415) 431-1477/Email: Debra_Pas@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 3/31/2014. (Pas, Debra) (Filed on 12/30/2013) (Entered: 12/30/2013)
674 ORDER DENYING PLAINTIFF'S REQUEST FOR ORDER RE ACCESS TO CLASSIFIED DOCUMENTS re 669 Response ( Non Motion ) filed by Rahinah Ibrahim, 665 Notice (Other) filed by Rahinah Ibrahim. Signed by Judge Alsup on December 30, 2013. (whalc1, COURT STAFF) (Filed on 12/30/2013) (Entered: 12/30/2013)
675 Transcript of Bench Trial Proceedings (Redacted) held on 12-5-2013, before Judge William H. Alsup. Court Reporter/Transcriber Debra L. Pas, CRR, Telephone number (415) 431-1477/Email: Debra_Pas@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 3/31/2014. (Pas, Debra) (Filed on 12/30/2013) (Entered: 12/30/2013)
676 Transcript of Bench Trial Proceedings (Redacted) held on 12-6-2013, before Judge William H. Alsup. Court Reporter/Transcriber Debra L. Pas, CRR, Telephone number (415) 431-1477/Email: Debra_Pas@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction

12/31/2013
12/31/2013 12/31/2013 12/31/2013 12/31/2013

set for 3/31/2014. (Pas, Debra) (Filed on 12/30/2013) (Entered: 12/30/2013)
677 ** DUPLICATE ENTRY - SEE SEALED DOCKET ENTRY #635. ** Note: The redacted version of this 12-2-2013 transcript has been efiled at docket entry No. 671.Sealed Transcript of Proceedings held on 12-22013, before Judge William H. Alsup. Court Reporter/Transcriber Debra L. Pas, CRR, Telephone number (415) 431-1477/Email: Debra_Pas@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy,any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Pas, Debra) (Filed on 12/31/2013) Modified on 12/1/2014 (djcS, ). (Entered: 12/31/2013)
678 Note: The redacted version of this 12-3-2013 transcript has been efiled at docket entry #671. Sealed Transcript of Proceedings held on 12-3-2013, before Judge William H. Alsup. Court Reporter/Transcriber Debra L. Pas, CRR, Telephone number (415) 431-1477/Email: Debra_Pas@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy,any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Pas, Debra) (Filed on 12/31/2013) (Entered: 12/31/2013)
679 Note: The redacted version of this 12-4-2013 transcript has been efiled at docket entry #673.Sealed Transcript of Proceedings held on 12-4-2013, before Judge William H. Alsup. Court Reporter/Transcriber Debra L. Pas, CRR, Telephone number (415) 431-1477/Email: Debra_Pas@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy,any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Pas, Debra) (Filed on 12/31/2013) (Entered: 12/31/2013)
680 Note: The redacted version of this 12-5-2013 transcript has been efiled at docket entry #675.Sealed Transcript of Proceedings held on 12-5-2013, before Judge William H. Alsup. Court Reporter/Transcriber Debra L. Pas, CRR, Telephone number (415) 431-1477/Email: Debra_Pas@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy,any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Pas, Debra) (Filed on 12/31/2013) (Entered: 12/31/2013)
681 Note: The redacted version of this 12-6-2013 transcript has been efiled at docket entry #676. Sealed Transcript of Proceedings held on 12-6-2013, before Judge William H. Alsup. Court Reporter/Transcriber Debra L. Pas, CRR, Telephone number (415) 431-1477/Email: Debra_Pas@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy,any Notice of Intent to Request Redaction, if required,

01/14/2014 01/14/2014 01/14/2014 01/15/2014 01/21/2014 01/24/2014 01/24/2014 01/24/2014 01/27/2014

is due no later than 5 business days from date of this filing. (Pas, Debra) (Filed on 12/31/2013) (Entered: 12/31/2013)
682 FINDINGS OF FACT AND CONCLUSIONS OF LAW and ORDER FOR RELIEF. Signed by Judge William Alsup on 1/14/2014. (dtmS, COURT STAFF) (Filed on 1/14/2014) (dtmS, COURT STAFF). Modified on 4/16/2014 (dtmS, COURT STAFF). (Entered: 01/14/2014)
683 PUBLIC NOTICE AND SUMMARY OF FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER BENCH TRIAL. Signed by Judge Alsup on January 14, 2014. (whalc1, COURT STAFF) (Filed on 1/14/2014) (Entered: 01/14/2014)
684 JUDGMENT. Signed by Judge Alsup on January 14, 2014. (whalc1, COURT STAFF) (Filed on 1/14/2014) (Entered: 01/14/2014)
685 ORDER RE FILING PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge Alsup on January 15, 2014. (whalc1, COURT STAFF) (Filed on 1/15/2014) (Entered: 01/15/2014)
686 ORDER REGARDING FILINGS. Signed by Judge Alsup on January 21, 2014. (whalc1, COURT STAFF) (Filed on 1/21/2014) (Entered: 01/21/2014)
687 (Redacted) Responses to Defendants' Brief and Proposed Findings of Fact and Conclusions of Law (Pipkin, Elizabeth) (Filed on 1/24/2014) Modified on 1/24/2014 (dtmS, COURT STAFF). (Entered: 01/24/2014)
688 (Redacted) Responses to Defendants' Brief and Proposed Findings of Fact and Conclusions of Law Regarding Plaintiff's Daughter. by Rahinah Ibrahim (Pipkin, Elizabeth) (Filed on 1/24/2014) Modified on 1/24/2014 (dtmS, COURT STAFF). (Entered: 01/24/2014)
689 (Redacted) Proposed Findings of Fact and Conclusions of Law After Bench Trial. by Rahinah Ibrahim (Pipkin, Elizabeth) (Filed on 1/24/2014) Modified on 1/24/2014 (dtmS, COURT STAFF). (Entered: 01/24/2014)
690 NOTICE of Compliance with 685 Order by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center Attachments: # 1 Exhibit A: Defendants' PostTrial Proposed Findings of Fact and Conclusions of Law [redacted], # 2 Exhibit B: Defendants' Response to Plaintiff's Post-Trial Proposed Findings of Fact and Conclusions of Law [redacted], # 3 Exhibit C: Defendants' Response to the Court's Order Regarding Plaintiff's Response Regarding Plaintiff's Daughter [redacted], # 4 Declaration of

01/27/2014 01/28/2014
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Paul G. Freeborne)(Bloom, Karen) (Filed on 1/27/2014) Modified on 1/27/2014 (dtmS, COURT STAFF). (Entered: 01/27/2014)
691 Redacted Response to Defendants' Post Trial Proposed Findings of Fact and Conclusions of Law Correction of Entry 687 by Rahinah Ibrahim (Pipkin, Elizabeth) (Filed on 1/27/2014) Modified on 1/28/2014 (dtmS, COURT STAFF). (Entered: 01/27/2014)
692 NOTICE of Compliance with 686 Order by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center (Attachments: # 1 Declaration of Maureen Dugan)(Bloom, Karen) (Filed on 1/28/2014) Modified on 1/29/2014 (dtmS, COURT STAFF). (Entered: 01/28/2014)
693 BILL OF COSTS by Rahinah Ibrahim. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Pipkin, Elizabeth) (Filed on 1/28/2014) (Entered: 01/28/2014)
694 MOTION for Attorney Fees Memorandum of Points and Authorities in Support of Plaintiff's Motion for Award of Attorneys' Fees and Costs (Redacted) filed by Rahinah Ibrahim. Motion Hearing set for 3/13/2014 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 2/11/2014. Replies due by 2/18/2014. (Pipkin, Elizabeth) (Filed on 1/28/2014) (Entered: 01/28/2014)
695 Declaration of Christine Peek in Support of 694 MOTION for Attorney Fees Memorandum of Points and Authorities in Support of Plaintiff's Motion for Award of Attorneys' Fees and Costs (Redacted) filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Related document(s) 694 ) (Pipkin, Elizabeth) (Filed on 1/28/2014) (Entered: 01/28/2014)
696 Declaration of James McManis in Support of 694 MOTION for Attorney Fees Memorandum of Points and Authorities in Support of Plaintiff's Motion for Award of Attorneys' Fees and Costs (Redacted) filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A)(Related document(s) 694 ) (Pipkin, Elizabeth) (Filed on 1/28/2014) (Entered: 01/28/2014)
697 Declaration of Allen J. Ruby in Support of 694 MOTION for Attorney Fees Memorandum of Points and Authorities in Support of Plaintiff's Motion for Award of Attorneys' Fees and Costs (Redacted) filed byRahinah Ibrahim. (Related document(s) 694 ) (Pipkin, Elizabeth) (Filed on 1/28/2014) (Entered: 01/28/2014)

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02/06/2014 02/06/2014 02/07/2014

698 Declaration of Rahinah Ibrahim in Support of 694 MOTION for Attorney Fees Memorandum of Points and Authorities in Support of Plaintiff's Motion for Award of Attorneys' Fees and Costs (Redacted) filed byRahinah Ibrahim. (Related document(s) 694 ) (Pipkin, Elizabeth) (Filed on 1/28/2014) (Entered: 01/28/2014)
699 Declaration of Christine Peek in Support of 694 MOTION for Attorney Fees Memorandum of Points and Authorities in Support of Plaintiff's Motion for Award of Attorneys' Fees and Costs (Redacted) CORRECTION OF DOCKET # 695 filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Related document(s) 694 ) (Pipkin, Elizabeth) (Filed on 1/28/2014) (Entered: 01/28/2014)
700 ORDER REGARDING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR RELIEF. Response due February 6.. Signed by Judge Alsup on February 3, 2014. (whalc1, COURT STAFF) (Filed on 2/3/2014) (Entered: 02/03/2014)
701 NOTICE of Compliance re 700 Order by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center Attachment # 1 Findings of Fact, Conclusions of Law and Order for Relief [Redacted])(Bloom, Karen) (Filed on 2/6/2014) Modified on 2/6/2014 (dtmS, COURT STAFF). (Entered: 02/06/2014)
702 NOTICE by Rahinah Ibrahim re 694 MOTION for Attorney Fees Memorandum of Points and Authorities in Support of Plaintiff's Motion for Award of Attorneys' Fees and Costs (Redacted) Notice of Continuance of Plaintiff's Motion for Award of Attorneys' Fees and Costs (Pipkin, Elizabeth) (Filed on 2/6/2014) (Entered: 02/06/2014)
Set/Reset Deadlines as to 694 MOTION for Attorney Fees. Motion Hearing set for 3/20/2014 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. (dtmS, COURT STAFF) (Filed on 2/6/2014) (Entered: 02/07/2014)
703 NOTICE re Redacted Order by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center re 701 Notice (Other),, (Attachments: # 1 Findings of Fact, Conclusions of Law, and Order for Relief [Redacted])(Bloom, Karen) (Filed on 2/7/2014) Modified on 2/7/2014 (dtmS, COURT STAFF). (Entered: 02/07/2014)

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02/11/2014
02/11/2014 02/18/2014

704 SUPPLEMENT to Bill of Costs, Fees for the Clerk by Rahinah Ibrahim re 693 Bill of Costs (Pipkin, Elizabeth) (Filed on 2/7/2014) Modified on 2/7/2014 (dtmS, COURT STAFF). (Entered: 02/07/2014)
705 SUPPLEMENT to Bill of Costs, Fees for Service of Summons and Subpoenas by Rahinah Ibrahim re 693 Bill of Costs (Pipkin, Elizabeth) (Filed on 2/7/2014) Modified on 2/7/2014 (dtmS, COURT STAFF). (Entered: 02/07/2014)
706 SUPPLEMENT to Bill of Costs, Fees for Transcripts by Rahinah Ibrahim re 693 Bill of Costs (Pipkin, Elizabeth) (Filed on 2/7/2014) Modified on 2/7/2014 (dtmS, COURT STAFF). (Entered: 02/07/2014)
707 SUPPLEMENT to Bill of Costs, Copying Costs by Rahinah Ibrahim re 693 Bill of Costs , (Pipkin, Elizabeth) (Filed on 2/7/2014) Modified on 2/7/2014 (dtmS, COURT STAFF). Modified on 2/7/2014 (dtmS, COURT STAFF). (Entered: 02/07/2014)
708 RESPONSE (re 694 MOTION for Attorney Fees Memorandum of Points and Authorities in Support of Plaintiff's Motion for Award of Attorneys' Fees and Costs (Redacted) ) (Redacted) filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Farel, Lily) (Filed on 2/11/2014) (Additional attachment(s) added on 6/3/2016: # 1 Unredacted Version) (dtmS, COURT STAFF). (Entered: 02/11/2014)
709 Declaration of Paul G. Freeborne in Support of 708 Opposition/Response to Motion,, filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 708 ) (Farel, Lily) (Filed on 2/11/2014) (Entered: 02/11/2014)
710 OBJECTIONS to re 693 Bill of Costs by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Declaration of Paul G. Freeborne)(Bloom, Karen) (Filed on 2/11/2014) (Entered: 02/11/2014)
711 REPLY (re 694 MOTION for Attorney Fees Memorandum of Points and Authorities in Support of Plaintiff's Motion for Award of Attorneys' Fees

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02/27/2014 02/28/2014

and Costs (Redacted) ) filed byRahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 2/18/2014) (Entered: 02/18/2014)
712 Declaration of Elizabeth Pipkin in Support of 711 Reply to Opposition/Response, Plaintiff's Motion for Award of Attorneys' Fees and Costs filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M)(Related document(s) 711 ) (Pipkin, Elizabeth) (Filed on 2/18/2014) (Entered: 02/18/2014)
713 Costs Taxed in amount of $53,699.13, Re: ECF No. 693, against Defendants. (ls, COURT STAFF) (Filed on 2/21/2014) (Entered: 02/21/2014)
714 OBJECTIONS to re 712 Declaration in Support, 711 Reply to Opposition/Response, Defendants' Local Rule 7-3(d)(1) Objection to Reply Evidence by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Sur-Reply)(Bloom, Karen) (Filed on 2/25/2014) (Entered: 02/25/2014)
715 ORDER STRIKING REPLY DECLARATION AND EXHIBITS re 712 Declaration in Support, filed by Rahinah Ibrahim, 714 Objection,, filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Arthur M. Cummings, II, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Department of Homeland Security, Terrorist Screening Center, Leonard C. Boyle, Robert Mueller, Donna A. Bucella. Signed by Judge Alsup on February 26, 2014. (whalc1, COURT STAFF) (Filed on 2/26/2014) (Entered: 02/26/2014)
716 OBJECTIONS to re 714 Objection,, Plaintiff's Objection to and Request for Order Striking Defendants' Surreply Re: Plaintiff's Motion for Attorneys' Fees and Costs by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 2/27/2014) (Entered: 02/27/2014)
717 MOTION For Review of Clerk's Taxation of Costs filed by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. Motion Hearing set for 4/10/2014 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 3/14/2014. Replies due by

03/06/2014
03/10/2014
03/13/2014 03/13/2014 03/13/2014
03/14/2014

3/21/2014. (Attachments: # 1 Declaration, # 2 Proposed Order)(Bloom, Karen) (Filed on 2/28/2014) (Entered: 02/28/2014)
718 REQUEST REGARDING ENTITLEMENT TO FEES AND COSTS re 709 Declaration in Support,, filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Arthur M. Cummings, II, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Department of Homeland Security, Terrorist Screening Center, Leonard C. Boyle, Robert Mueller, Donna A. Bucella, 699 Declaration in Support, filed by Rahinah Ibrahim. Signed by Judge Alsup on March 6, 2014. (whalc1, COURT STAFF) (Filed on 3/6/2014) (Entered: 03/06/2014)
719 MOTION Requesting Rescheduling the Hearings re Motion for Fees and Costs and Motion for Review of Clerk's Taxation of Costs filed by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. Responses due by 3/14/2014. (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Proposed Order)(Bloom, Karen) (Filed on 3/10/2014) Modified on 3/10/2014 (dtmS, COURT STAFF). (Entered: 03/10/2014)
720 RESPONSE re 718 Order re Fees and Costs filed by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 3/13/2014) Modified on 3/13/2014 (dtmS, COURT STAFF). (Entered: 03/13/2014)
721 Supplemental Declaration of Elizabeth Pipkin in Support of 694 Motion for Attorney Fees and Costs filed by Rahinah Ibrahim. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 720 ) (Pipkin, Elizabeth) (Filed on 3/13/2014) Modified on 3/13/2014 (dtmS, COURT STAFF). (Entered: 03/13/2014)
722 MOTION to Strike 720 Supplemental Brief, 721 Declaration in Support, filed by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. Motion Hearing set for 5/1/2014 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 3/27/2014. Replies due by 4/3/2014. (Attachments: # 1 Proposed Order)(Theis, John) (Filed on 3/13/2014) (Entered: 03/13/2014)
723 ORDER REGARDING DEFENDANTS MOTION TO STRIKE by Hon. William Alsup re 722 Motion to Strike 720 Supplemental Brief, 722 MOTION to Strike 720 Supplemental

03/14/2014 03/14/2014 03/14/2014 03/17/2014 03/17/2014
03/21/2014
03/25/2014 03/25/2014

Brief, 721 Declaration in Support, , 721 Declaration in Support,.(whalc1, COURT STAFF) (Filed on 3/14/2014) (Entered: 03/14/2014)
724 RESPONSE (re 717 MOTION For Review of Clerk's Taxation of Costs ) filed byRahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 3/14/2014) Modified on 3/14/2014 (dtmS, COURT STAFF). (Entered: 03/14/2014)
725 Declaration of Elizabeth Pipkin in Support of 724 Opposition/Response to Motion, filed byRahinah Ibrahim. (Related document(s) 724 ) (Pipkin, Elizabeth) (Filed on 3/14/2014) Modified on 3/14/2014 (dtmS, COURT STAFF). (Entered: 03/14/2014)
726 RESPONSE (re 719 MOTION Reschedule Hearings filed by Rahinah Ibrahim. (Kazi, Rubina) (Filed on 3/14/2014) Modified on 3/17/2014 (dtmS, COURT STAFF). (Entered: 03/14/2014)
727 ORDER CONTINUING HEARING TO MARCH 25 AND VACATING HEARING Motion Hearing set for 3/25/2014 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup.. Signed by Judge Alsup on March 17, 2014. (whalc1, COURT STAFF) (Filed on 3/17/2014) (Entered: 03/17/2014)
728 REPLY (re 694 MOTION for Attorney Fees Memorandum of Points and Authorities in Support of Plaintiff's Motion for Award of Attorneys' Fees and Costs (Redacted) ) Response filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Bloom, Karen) (Filed on 3/17/2014) (Entered: 03/17/2014)
729 REPLY (re 717 MOTION For Review of Clerk's Taxation of Costs ) filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Bloom, Karen) (Filed on 3/21/2014) (Entered: 03/21/2014)
730 REQUEST RE MOTION FOR ATTORNEYS FEES AND EXPENSES. Signed by Judge Alsup on March 25, 2014. Response due noon on March 28. (whalc1, COURT STAFF) (Filed on 3/25/2014) (Entered: 03/25/2014)
733 Minute Entry: Motion Hearing held on 3/25/2014 before Judge William Alsup (Date Filed: 3/25/2014) re 694 MOTION for Attorney Fees Memorandum of Points and Authorities in Support of Plaintiff's

03/27/2014 03/27/2014 03/28/2014 03/28/2014
04/15/2014 04/15/2014

Motion for Award of Attorneys' Fees and Costs (Redacted) filed by Rahinah Ibrahim. (Court Reporter Lydia Zinn.) (dt, COURT STAFF) (Date Filed: 3/25/2014) (Entered: 03/27/2014)
731 TRANSCRIPT ORDER by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center for Court Reporter Lydia Zinn. (Bloom, Karen) (Filed on 3/27/2014) (Entered: 03/27/2014)
732 TRANSCRIPT ORDER by Rahinah Ibrahim for Court Reporter Lydia Zinn. (Pipkin, Elizabeth) (Filed on 3/27/2014) (Entered: 03/27/2014)
734 RESPONSE to re 730 Order by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Theis, John) (Filed on 3/28/2014) (Entered: 03/28/2014)
735 Transcript of Proceedings held on 3/25/2014, before Judge William H. Alsup. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531-6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 6/26/2014. (Related documents(s) 732 , 731 ) (Zinn, Lydia) (Filed on 3/28/2014) (Entered: 03/28/2014)
736 NOTICE by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center of Compliance with the Court's January 14, 2014 Order (Theis, John) (Filed on 4/15/2014) (Entered: 04/15/2014)
737 Declaration of Paul G. Freeborne in Support of 736 Notice (Other), filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center.

04/16/2014 04/16/2014 04/16/2014 04/16/2014 04/17/2014
04/18/2014 04/18/2014 04/23/2014

(Attachments: # 1 Declaration of Brenda M. Atkinson, # 2 Declaration of G. Clayton Grigg, # 3 Declaration of Luke J. McCormack, # 4 Declaration of Margaret Cooperman, # 5 Declaration Timothy Goyer, # 6 Declaration Matthew McNeil, # 7 Exhibit, # 8 Exhibit)(Related document(s) 736 ) (Theis, John) (Filed on 4/15/2014) (Entered: 04/15/2014)
738 NOTICE RE UNSEALING OF JANUARY 2014 ORDER re 682 Findings of Fact & Conclusions of Law. Signed by Judge Alsup on April 15, 2014. (whalc1, COURT STAFF) (Filed on 4/16/2014) (Entered: 04/16/2014)
739 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS MOTION FOR ATTORNEYS FEES AND EXPENSES by Judge Alsup re 694 Motion for Attorney Fees (whalc1, COURT STAFF) (Filed on 4/16/2014) (Entered: 04/16/2014)
740 ORDER RE ATTORNEY'S FEES AND EXPENSES re 739 Order on Motion for Attorney Fees. Signed by Judge Alsup on April 15, 2014. (whalc1, COURT STAFF) (Filed on 4/16/2014) (Entered: 04/16/2014)
741 ORDER RE REVIEW OF CLERKS BILL OF COSTS by Judge Alsup re 717 Motion (whalc1, COURT STAFF) (Filed on 4/16/2014) (Entered: 04/16/2014)
742 MOTION for Leave to File Motion for Reconsideration of the Court's April 16, 2014 Order Granting in Part and Denying in Part Plaintiff's Motion for Attorneys' Fees and Expenses; Declaration of Elizabeth Pipkin filed by Rahinah Ibrahim. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Pipkin, Elizabeth) (Filed on 4/17/2014) (Entered: 04/17/2014)
743 ORDER RE RESPONSE TO MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION. Response due by noon on 04/23/2014.. Signed by Judge Alsup on April 18, 2014. (whalc1, COURT STAFF) (Filed on 4/18/2014) (Entered: 04/18/2014)
Set/Reset Deadlines as to 742 MOTION for Leave to File Motion for Reconsideration of the Court's April 16, 2014 Order Granting in Part and Denying in Part Plaintiff's Motion for Attorneys' Fees and Expenses; Declaration of Elizabeth Pipkin. Responses due by 4/23/2014. (dtmS, COURT STAFF) (Filed on 4/18/2014) (Entered: 04/18/2014)
744 OBJECTIONS to re 740 Order, 739 Order on Motion for Attorney Fees Plaintiff's Objections to, and Proposed Modifications to, Procedures Set Forth in the Court's April 16, 2014 Orders (Docket Nos. 739 & 740) by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 4/23/2014) (Entered: 04/23/2014)

04/23/2014 04/23/2014 04/23/2014
04/25/2014 04/28/2014 04/28/2014 04/28/2014

745 Declaration of Elizabeth Pipkin in Support of 744 Objection, Declaration of Elizabeth Pipkin in Support of Plaintiff's Objections to, and Proposed Modifications to, Procedures Set Forth in the Court's April 16, 2014 Orders (Docket Nos. 739 & 740) filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 744 ) (Pipkin, Elizabeth) (Filed on 4/23/2014) (Entered: 04/23/2014)
746 OBJECTIONS to re 740 Order by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Declaration)(Bloom, Karen) (Filed on 4/23/2014) (Entered: 04/23/2014)
747 RESPONSE (re 742 MOTION for Leave to File Motion for Reconsideration of the Court's April 16, 2014 Order Granting in Part and Denying in Part Plaintiff's Motion for Attorneys' Fees and Expenses; Declaration of Elizabeth Pipkin ) filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Theis, John) (Filed on 4/23/2014) (Entered: 04/23/2014)
748 ORDER DENYING MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION AND ORDER RE OBJECTIONS TO THE SPECIAL-MASTER PROCEDURE by Hon. William Alsup denying 742 Motion for Leave to File.(whalc1, COURT STAFF) (Filed on 4/25/2014) (Entered: 04/25/2014)
749 MOTION for Extension of Time to File Plaintiff's Unopposed Administrative Motion for Extension of Time to File Declaration Re: Motion for Attorney's Fees and Expenses in Compliance with April 16, 2014 Order (Docket No. 740) filed by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 4/28/2014) (Entered: 04/28/2014)
750 Declaration of Elizabeth Pipkin in Support of 749 MOTION for Extension of Time to File Plaintiff's Unopposed Administrative Motion for Extension of Time to File Declaration Re: Motion for Attorney's Fees and Expenses in Compliance with April 16, 2014 Order (Docket No. 740) filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A)(Related document(s) 749 ) (Pipkin, Elizabeth) (Filed on 4/28/2014) (Entered: 04/28/2014)
751 Proposed Order Plaintiff's Unopposed Administrative Motion for Extension of Time to File Declaration Re: Motion for Attorney's Fees and Expenses in Compliance with April 16, 2014 Order (Docket No.

04/29/2014 04/30/2014 04/30/2014 05/01/2014 05/13/2014
05/29/2014
06/02/2014 06/09/2014 06/09/2014

740) by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 4/28/2014) (Entered: 04/28/2014)
752 ORDER RE PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO FILE DECLARATION RE ATTORNEY'S FEES AND EXPENSES by Hon. William Alsup granting 749 Motion for Extension of Time to File.(whalc1, COURT STAFF) (Filed on 4/29/2014) (Entered: 04/29/2014)
753 NOTICE of Change In Counsel by Lily Sara Farel (Farel, Lily) (Filed on 4/30/2014) (Entered: 04/30/2014)
754 Statement re 741 Order on Motion for Miscellaneous Relief Joint Statement re Costs Taxed for Service of Federal Defendants and Trial Witnesses Pursuant to Docket No. 741 by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 4/30/2014) (Entered: 04/30/2014)
755 ORDER RE STATEMENT OF SERVICE COSTS TO BE TAXED re 741 Order, 754 Statement. Signed by Judge Alsup on May 1, 2014. (whalc1, COURT STAFF) (Filed on 5/1/2014) (Entered: 05/01/2014)
756 Declaration of Elizabeth Pipkin in Support of 740 Order, 741 Order on Motion for Miscellaneous Relief, 739 Order on Motion for Attorney Fees Declaration of Elizabeth Pipkin Regarding Attorneys' Fees and Expenses filed byRahinah Ibrahim. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6A, # 7 Exhibit 6B, # 8 Exhibit 6C, # 9 Exhibit 6D, # 10 Exhibit 7, # 11 Exhibit 8)(Related document(s) 740 , 741 , 739 ) (Pipkin, Elizabeth) (Filed on 5/13/2014) (Entered: 05/13/2014)
757 OBJECTIONS to re 756 Declaration in Support,, by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Declaration of Paul G. Freeborne)(Bloom, Karen) (Filed on 5/29/2014) (Entered: 05/29/2014)
758 ORDER RE NON-COMPLIANT DECLARATIONS. Responses due June 9 at noon.. Signed by Judge Alsup on June 2, 2014. (whalc1, COURT STAFF) (Filed on 6/2/2014) (Entered: 06/02/2014)
759 NOTICE by Rahinah Ibrahim re 758 Order Plaintiff's Submission Pursuant to the Court's June 2, 2014 Order Regarding Attorneys' Fees (Pipkin, Elizabeth) (Filed on 6/9/2014) (Entered: 06/09/2014)
760 Declaration of Paul G. Freeborne in Support of 757 Objection, 758 Order filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II,

06/13/2014 06/13/2014 06/13/2014 06/13/2014 06/13/2014
06/16/2014 06/20/2014

Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Exhibit, # 2 Exhibit)(Related document(s) 757 , 758 ) (Bloom, Karen) (Filed on 6/9/2014) (Entered: 06/09/2014)
761 NOTICE OF APPEAL to the 9th CCA by Rahinah Ibrahim.(Appeal fee of $505 receipt number 0971-8694362 paid.) (Attachments: # 1 Exhibit A - Dkt. 739, # 2 Exhibit B - Dkt. 740, # 3 Exhibit C - Dkt. 748, # 4 Exhibit D - Dkt. 758)(Pipkin, Elizabeth) (Filed on 6/13/2014) Modified on 6/13/2014 (dtmS, COURT STAFF). (Entered: 06/13/2014)
762 Statement re 761 Notice of Appeal, Plaintiff's Representation Statement by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 6/13/2014) (Entered: 06/13/2014)
763 NOTICE OF APPEAL to the 9th CCA by Rahinah Ibrahim.(Appeal fee of $505 receipt number 0971-8694404 paid.) (Attachments: # 1 Exhibit A - Dkt. 741, # 2 Exhibit B - Dkt. 755)(Pipkin, Elizabeth) (Filed on 6/13/2014) Modified on 6/13/2014 (dtmS, COURT STAFF). (Entered: 06/13/2014)
764 Statement re 763 Notice of Appeal, Plaintiff's Representation Statement by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 6/13/2014) (Entered: 06/13/2014)
765 MOTION for Leave to File Plaintiff's Motion for Leave to File Motion for Reconsideration of the Court's April 16, 2014 Orders Granting in Part and Denying in Part Plaintiff's Motion for Attorneys' Fees and Expenses; Declaration of Elizabeth Pipkin filed by Rahinah Ibrahim. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Pipkin, Elizabeth) (Filed on 6/13/2014) (Entered: 06/13/2014)
766 ORDER RE RESPONSE TO SECOND MOTION FOR RECONSIDERATION. Response due June 20 at noon.. Signed by Judge Alsup on June 16, 2014. (whalc1, COURT STAFF) (Filed on 6/16/2014) (Entered: 06/16/2014)
767 RESPONSE (re 765 MOTION for Leave to File Plaintiff's Motion for Leave to File Motion for Reconsideration of the Court's April 16, 2014 Orders Granting in Part and Denying in Part Plaintiff's Motion for Attorneys' Fees and Expenses; Declaration ) filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments:

06/20/2014
06/23/2014 06/26/2014 06/26/2014 07/08/2014 07/09/2014 07/11/2014 07/11/2014
07/14/2014 07/14/2014 07/14/2014

# 1 Declaration)(Bloom, Karen) (Filed on 6/20/2014) (Entered: 06/20/2014)
768 Declaration of Elizabeth Pipkin in Support of 740 Order Declaration of Elizabeth Pipkin in Response to Paragraph 10 of the Court's April 16, 2014 Order Re Attorney's Fees and Expenses [Docket No. 740] filed byRahinah Ibrahim. (Related document(s) 740 ) (Pipkin, Elizabeth) (Filed on 6/20/2014) (Entered: 06/20/2014)
769 USCA Case Number 14-16161. for 763 Notice of Appeal, filed by Rahinah Ibrahim, 761 Notice of Appeal, filed by Rahinah Ibrahim. (dtmS, COURT STAFF) (Filed on 6/23/2014) (Entered: 06/23/2014)
770 ORDER DENYING PLAINTIFFS SECOND MOTION FOR LEAVE TO FILE A MOTION FOR RECONSIDERATION by Hon. William Alsup denying 765 Motion for Leave to File.(whalc1, COURT STAFF) (Filed on 6/26/2014) (Entered: 06/26/2014)
771 ORDER RE SPECIAL MASTER. Response due July 9 at noon.. Signed by Judge Alsup on June 26, 2014. (whalc1, COURT STAFF) (Filed on 6/26/2014) (Entered: 06/26/2014)
772 Statement re 771 Order Joint Statement Regarding Special Master by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 7/8/2014) (Entered: 07/08/2014)
773 REQUEST RE APPOINTMENT OF SPECIAL MASTER. Response due July 11 at noon. Signed by Judge Alsup on July 9, 2014. (whalc1, COURT STAFF) (Filed on 7/9/2014) (Entered: 07/09/2014)
774 RESPONSE to re 773 Order by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 7/11/2014) Modified on 7/11/2014 (dtmS, COURT STAFF). (Entered: 07/11/2014)
775 ORDER APPOINTING GINA MOON AS SPECIAL MASTER re 739 , 740 , 748 Order on Motion for Attorney Fees and Expenses. Report and Recommendation due September 18, 2014. Signed by Judge Alsup on July 11, 2014. (whalc1, COURT STAFF) (Filed on 7/11/2014) . (Entered: 07/11/2014)
776 Declaration of Gina Moon Pursuant to July 11 Order filed byGina Moon. (Moon, Gina) (Filed on 7/14/2014) (Entered: 07/14/2014)
777 TRANSCRIPT ORDER by Rahinah Ibrahim for Court Reporter Leo Mankiewicz. (Pipkin, Elizabeth) (Filed on 7/14/2014) (Entered: 07/14/2014)
778 ** ORDER CANCELLED - 03/12/09 HEARING TRANSCRIPT EFILED AT DOCKET #782. ** TRANSCRIPT ORDER by Rahinah Ibrahim for Court Reporter Sahar

07/14/2014 07/14/2014 07/14/2014 07/15/2014
08/13/2014
08/13/2014 08/20/2014

McVickar. (Pipkin, Elizabeth) (Filed on 7/14/2014) Modified on 7/15/2014 (djc, COURT STAFF). (Entered: 07/14/2014)
779 TRANSCRIPT ORDER by Rahinah Ibrahim for Court Reporter Belle Ball. (Pipkin, Elizabeth) (Filed on 7/14/2014) (Entered: 07/14/2014)
780 Transcript Designation Form re 761 Notice of Appeal, Transcript due by 8/12/2014. (Pipkin, Elizabeth) (Filed on 7/14/2014) (Entered: 07/14/2014)
781 Transcript Designation Form re 763 Notice of Appeal, Transcript due by 8/12/2014. (Pipkin, Elizabeth) (Filed on 7/14/2014) (Entered: 07/14/2014)
782 **This transcript is unlocked and available for immediate downloading, as it wasn't efiled in May 2008 as required. ** Transcript of Proceedings held on March 12, 2009, before Judge William H. Alsup. Court Reporter Sahar McVickar. Per General Order No. 59 and Judicial Conference policy, normally this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (djc, COURT STAFF) (Filed on 7/15/2014) (Entered: 07/15/2014)
783 MOTION for Leave to File Motion for Reconsideration of January 14, 2014 Order, January 14, 2014 Judgment, and April 16, 2014 Orders; Declaration of Elizabeth Pipkin filed by Rahinah Ibrahim. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 2-A, # 4 Exhibit 2-B, # 5 Exhibit 2-C, # 6 Exhibit 2-D (Part 1), # 7 Exhibit 2-D (Part 2), # 8 Exhibit 2-E (Part 1), # 9 Exhibit 2-E (Part 2), # 10 Exhibit 2-E (Part 3), # 11 Exhibit 2-E (Part 4), # 12 Exhibit 2-E (Part 5), # 13 Exhibit 2-F, # 14 Exhibit 2G, # 15 Exhibit 2-H, # 16 Exhibit 2-I, J, K, L, # 17 Exhibit 3)(Pipkin, Elizabeth) (Filed on 8/13/2014) Modified on 8/14/2014 (dtmS, COURT STAFF). (Entered: 08/13/2014)
784 REQUEST RE MOTION FOR LEAVE TO FILE A MOTION FOR RECONSIDERATION (DKT. NO. 783). Response due August 20 at noon.. Signed by Judge Alsup on August 13, 2014. (whalc1, COURT STAFF) (Filed on 8/13/2014) (Entered: 08/13/2014)
785 RESPONSE (re 783 MOTION for Leave to File Plaintiff's Motion for Leave to File Motion for Reconsideration of January 14, 2014 Order, January 14, 2014 Judgment, and April 16, 2014 Orders; Declaration of Elizabeth Pipkin ) filed byLeonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller,

08/23/2014 09/18/2014 09/19/2014 09/23/2014 09/24/2014 10/02/2014 10/02/2014
10/02/2014 10/02/2014

Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Bloom, Karen) (Filed on 8/20/2014) (Entered: 08/20/2014)
786 ORDER DENYING PLAINTIFF MOTION FOR LEAVE TO FILE AMOTION FOR RECONSIDERATION by Hon. William Alsup re 783 Motion for Leave to File.(whalc1, COURT STAFF) (Filed on 8/23/2014) (Entered: 08/24/2014)
787 Statement (Report and Recommendation on Request for Attorney's Fees) by Gina Moon. (Attachments: # 1 Exhibit A)(Moon, Gina) (Filed on 9/18/2014) (Entered: 09/18/2014)
788 ORDER RE DOCKET NUMBER 756-10. Report due September 26 at noon.. Signed by Judge Alsup on September 19, 2014. (whalc1, COURT STAFF) (Filed on 9/19/2014) (Entered: 09/19/2014)
789 Statement (Report and Recommendation of Special Master on Expenses) by Gina Moon. (Moon, Gina) (Filed on 9/23/2014) (Entered: 09/23/2014)
790 ORDER TO SHOW CAUSE RE REPORT AND RECOMMENDATION re 789 Report, 787 Report. Signed by Judge Alsup on September 24, 2014. (whalc1, COURT STAFF) (Filed on 9/24/2014) (Entered: 09/24/2014)
791 OBJECTIONS to re 790 Order Plaintiff's Objections to Special Master's Report and Recommendation Regarding Expenses (Dkt. 789) and Response to Court's Order to Show Cause (Dkt. 790) by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 10/2/2014) (Entered: 10/02/2014)
792 Declaration of Elizabeth Pipkin in Support of 791 Objection, > filed by Rahinah Ibrahim. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA)(Related document(s) 791 ) (Pipkin, Elizabeth) (Filed on 10/2/2014) Modified on 10/2/2014 (dtmS, COURT STAFF). (Entered: 10/02/2014)
793 OBJECTIONS to re 792 Declaration in Support,, 790 Order Plaintiff's Objections to Special Master's Report and Recommendation on Request for Attorney's Fees (Dkt. 787) and Response to Court's Order to Show Cause (Dkt. 790) by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 10/2/2014) (Entered: 10/02/2014)
794 MOTION for Review of the Special Masters Recommendations by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton,

10/02/2014 10/02/2014
10/09/2014 10/09/2014
10/09/2014 10/09/2014 10/09/2014

Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center. (Attachments: # 1 Declaration, # 2 Proposed Order)(Bloom, Karen) (Filed on 10/2/2014) Modified on 10/9/2014 (dtmS, COURT STAFF). (Entered: 10/02/2014)
795 Statement re 791 Objection, Plaintiff's Statement Regarding Expert Professor Jeffrey Kahn's Deposition Fees by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 10/2/2014) (Entered: 10/02/2014)
796 Corrected MOTION for Review of the Special Master's Report by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center re 794 Objection,, (Attachments: # 1 Corrected Motion, # 2 Declaration, # 3 Proposed Order)(Bloom, Karen) (Filed on 10/2/2014) Modified on 10/9/2014 (dtmS, COURT STAFF). (Entered: 10/02/2014)
797 Statement Joint Statement Regarding the Special Master's Invoice by Rahinah Ibrahim. (Peek, Christine) (Filed on 10/9/2014) (Entered: 10/09/2014)
798 RESPONSE to 791 Plaintiff's Objections to Special Master's Report by Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, John Cunningham, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Robert Mueller, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center, United States of America. (Freeborne, Paul) (Filed on 10/9/2014) Modified on 10/9/2014 (dtmS, COURT STAFF). (Entered: 10/09/2014)
799 RESPONSE re 796 Motion for Review by Rahinah Ibrahim (Peek, Christine) (Filed on 10/9/2014) Modified on 10/9/2014 (dtmS, COURT STAFF). (Entered: 10/09/2014)
800 Declaration of Elizabeth Pipkin in Support of 799 Response/Opposition filed byRahinah Ibrahim. (Attachments: # 1 Exhibit A)(Related document(s) 799 ) (Peek, Christine) (Filed on 10/9/2014) Modified on 10/9/2014 (dtmS, COURT STAFF). (Entered: 10/09/2014)
801 ORDER RE SPECIAL MASTERS INVOICE. Response due October 14 at noon.. Signed by Judge Alsup on October 9, 2014. (whalc1, COURT STAFF) (Filed on 10/9/2014) (Entered: 10/09/2014)

10/09/2014
10/09/2014 10/09/2014 10/09/2014 10/09/2014 10/30/2014
10/31/2014 10/31/2014

Electronic filing error. Incorrect event used. Please contact Docket Clerk for Instruction. Re: 796 Notice (Other),, 794 Objection,, filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Arthur M. Cummings, II, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Department of Homeland Security, Terrorist Screening Center, Leonard C. Boyle, Donna A. Bucella, Robert Mueller (dtmS, COURT STAFF) (Filed on 10/9/2014) (Entered: 10/09/2014)
Electronic filing error. Document not properly linked. Re: 798 Response ( Non Motion ),, filed by Tom Ridge, (dtmS, COURT STAFF) (Filed on 10/9/2014) (Entered: 10/09/2014)
Set/Reset Deadlines as to 796 MOTION for Review. Motion Hearing set for 11/20/2014 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. (dtmS, COURT STAFF) (Filed on 10/9/2014) Modified on 10/9/2014 (dtmS, COURT STAFF). (Entered: 10/09/2014)
802 Statement re 801 Order (Statement in Response to October 9, 2014 Order) by Gina Moon. (Attachments: # 1 Exhibit A)(Moon, Gina) (Filed on 10/9/2014) (Entered: 10/09/2014)
803 ORDER RESOLVING OBJECTIONS, ADOPTING SPECIAL MASTERS REPORT AND RECOMMENDATION, VACATING HEARING, AND FIXING COMPENSATION re 787 , 789 Reports.. Signed by Judge Alsup on October 9, 2014. (whalc1, COURT STAFF) (Filed on 10/9/2014) (Entered: 10/09/2014)
804 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Marion C. Blakey, Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Eric H. Holder, Jr, Michael E. Leiter, Norm MIneta, Robert Mueller, National Counterterrorism Center, Tom Ridge, David M. Stone, Terrorist Screening Center, United States of America. (Appeal fee FEE WAIVED.) (Attachments: # 1 Exhibit Defendants' Representation Statement)(Freeborne, Paul) (Filed on 10/30/2014) (Entered: 10/30/2014)
805 STATUS REPORT Joint Status Report re: Payment of Fees Pursuant to the Court's October 9, 2014 Order Resolving Objections, Adopting Special Master's Report and Recommendation, Vacating Hearing, and Fixing Compensation by Rahinah Ibrahim. (Attachments: # 1 Exhibit A)(Peek, Christine) (Filed on 10/31/2014) (Entered: 10/31/2014)
806 REQUEST FOR BRIEFING. Responses due November 7 at noon.. Signed by Judge Alsup on October 31, 2014. (whalc1, COURT STAFF) (Filed on 10/31/2014) (Entered: 10/31/2014)

11/04/2014 11/04/2014 11/07/2014
11/07/2014 11/07/2014 11/13/2014
11/13/2014 12/01/2014 12/15/2014 04/13/2015

807 ORDER of USCA 14-16160, 14-16161 as to 761 Notice of Appeal, filed by Rahinah Ibrahim. Case 14-16160 Dismissed (dtmS, COURT STAFF) (Filed on 11/4/2014) (Entered: 11/04/2014)
808 USCA Case Number 14-17142, for 804 Notice of Appeal,, filed by National Counterterrorism Center et al. (dtmS, COURT STAFF) (Filed on 11/4/2014) (Entered: 11/04/2014)
809 RESPONSE to re 806 Order Requesting Briefing Regarding the Stay of Payment of Attorney's Fees, Expenses, and Costs Awarded Pending Appeal by Marion C. Blakey, Leonard C. Boyle, Donna A. Bucella, Michael Chertoff, Hilary Clinton, Arthur M. Cummings, II, Department of Homeland Security, Department of State, Federal Bureau of Investigation, Kip Hawley, Eric H. Holder, Jr, Michael E. Leiter, Norm MIneta, Robert Mueller, Janet Napolitano, National Counterterrorism Center, Tom Ridge, Terrorist Screening Center, United States of America. (Freeborne, Paul) (Filed on 11/7/2014) (Entered: 11/07/2014)
810 RESPONSE to re 806 Order Plaintiff's Brief re: Payment of Fees, Expenses, and Costs Pursuant to the Court's October 31, 2014 Order (Dkt. No. 806) by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 11/7/2014) (Entered: 11/07/2014)
811 ORDER RESOLVING REMAINING ISSUES. Signed by Judge Alsup on November 7, 2014. (whalc1, COURT STAFF) (Filed on 11/7/2014) (Entered: 11/07/2014)
812 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Rahinah Ibrahim. Appeal of Order 740 , Order on Motion for Leave to File 786 , Order, Terminate Deadlines and Hearings 803 , Order 758 , Order 811 , Order on Motion for Leave to File 748 , Order on Motion for Attorney Fees 739 , Order, 775 , Order on Motion for Leave to File 770 (Appeal fee of $505 receipt number 0971-9071452 paid.) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Pipkin, Elizabeth) (Filed on 11/13/2014) (Entered: 11/13/2014)
813 Statement re 812 Notice of Appeal,, Plaintiff's Representation Statement by Rahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 11/13/2014) (Entered: 11/13/2014)
814 Transcript Designation Form (Pipkin, Elizabeth) (Filed on 12/1/2014) (Entered: 12/01/2014)
815 Transcript Designation Form (Pipkin, Elizabeth) (Filed on 12/15/2014) (Entered: 12/15/2014)
816 MANDATE of USCA Case 14-17142 only as to 804 Notice of Appeal,, filed by National Counterterrorism Center, David M. Stone, Norm

04/13/2015 08/30/2016 10/17/2016 10/31/2016 10/31/2016 01/12/2018
02/23/2018 01/02/2019 01/11/2019
01/11/2019 01/17/2019

MIneta, Hilary Clinton, Department of Homeland Security, Terrorist Screening Center, Robert Mueller, Tom Ridge, Department of State, Eric H. Holder, Jr., Arthur M. Cummings, II, United States of America, Marion C. Blakey, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Donna A. Bucella, Leonard C. Boyle (dtmS, COURT STAFF) (Filed on 4/13/2015) (Entered: 04/13/2015)
817 CLERK'S Letter Spreading Mandate to Counsel (USCA 14-17142) (dtmS, COURT STAFF) (Filed on 4/13/2015) (Entered: 04/13/2015)
818 USCA Opinion as to 812 Notice of Appeal,, filed by Rahinah Ibrahim, 761 Notice of Appeal, filed by Rahinah Ibrahim (pdy, COURT STAFF) (Filed on 8/30/2016) (Entered: 09/02/2016)
819 ORDER of USCA (14-16161 & 14-17272) as to 804 Notice of Appeal, 769 USCA Case Number. (ecgS, COURT STAFF) (Filed on 10/17/2016) (Entered: 10/17/2016)
820 ORDER of USCA (14-16161 & 14-17272) as to 763 Notice of Appeal, filed by Rahinah Ibrahim (ecgS, COURT STAFF) (Filed on 10/31/2016) (Entered: 10/31/2016)
821 ORDER of USCA as to 763 Notice of Appeal, filed by Rahinah Ibrahim, 761 Notice of Appeal, filed by Rahinah Ibrahim (ecgS, COURT STAFF) (Filed on 10/31/2016) (Entered: 10/31/2016)
822 ORDER of USCA (14-16161 & 14-17272) re copies of brief as to 763 Notice of Appeal, filed by Rahinah Ibrahim, 761 Notice of Appeal, filed by Rahinah Ibrahim (sxbS, COURT STAFF) (Filed on 1/12/2018) (Entered: 01/12/2018)
823 ORDER of USCA (14-16161, 14-17272) setting schedule for oral argument as to 812 Notice of Appeal,, filed by Rahinah Ibrahim (sxbS, COURT STAFF) (Filed on 2/23/2018) (Entered: 02/23/2018)
824 USCA Opinion as to 763 Notice of Appeal, filed by Rahinah Ibrahim, 761 Notice of Appeal, filed by Rahinah Ibrahim (amgS, COURT STAFF) (Filed on 1/2/2019) (Entered: 01/02/2019)
825 ***FILED IN ERROR. SEE AMENDED BILL OF COSTS 826 *** BILL OF COSTS by Rahinah Ibrahim. Objections due by 1/25/2019. (Peek, Christine) (Filed on 1/11/2019) Modified on 1/14/2019 (amgS, COURT STAFF). (Entered: 01/11/2019)
826 BILL OF COSTS AMENDED BILL OF COSTS by Rahinah Ibrahim. Objections due by 1/25/2019. (Peek, Christine) (Filed on 1/11/2019) (Entered: 01/11/2019)
827 ADMINISTRATIVE MOTION to Stay filed by Department of State, Federal Bureau of Investigation, National Counterterrorism Center, Terrorist Screening Center, United States Department of Homeland

01/17/2019 01/22/2019 03/02/2019
03/06/2019
03/06/2019 03/29/2019 03/29/2019 03/29/2019

Security, United States of America. Responses due by 1/22/2019. (Attachments: # 1 Declaration, # 2 Proposed Order)(Bloom, Karen) (Filed on 1/17/2019) (Entered: 01/17/2019)
828 OPPOSITION/RESPONSE (re 827 ADMINISTRATIVE MOTION to Stay ) PLAINTIFF'S STATEMENT OF NON-OPPOSITION filed byRahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 1/17/2019) (Entered: 01/17/2019)
829 ORDER RE 827 ADMINISTRATIVE MOTION TO STAY IN LIGHT OF LAPSE OF APPROPRIATIONS by Judge William Alsup. (whalc1, COURT STAFF) (Filed on 1/22/2019) (Entered: 01/22/2019)
830 ADMINISTRATIVE MOTION stay deadline for responding to bill of costs filed by Department of State, Federal Bureau of Investigation, National Counterterrorism Center, Terrorist Screening Center, United States Department of Homeland Security. Responses due by 3/6/2019. (Attachments: # 1 Declaration, # 2 Proposed Order)(Bloom, Karen) (Filed on 3/2/2019) (Entered: 03/02/2019)
831 OPPOSITION/RESPONSE (re 830 ADMINISTRATIVE MOTION stay deadline for responding to bill of costs ) filed byRahinah Ibrahim. (Attachments: # 1 Declaration Declaration of Christine Peek in Support of Plaintiff's Opposition to Defendants' Motion to Stay Deadline to Respond to Bill of Costs)(Peek, Christine) (Filed on 3/6/2019) (Entered: 03/06/2019)
832 ORDER RE 830 MOTION TO STAY DEADLINE TO RESPOND TO BILL OF COSTS by Judge William Alsup. (whalc1, COURT STAFF) (Filed on 3/6/2019) (Entered: 03/06/2019)
833 ORDER of USCA granting motion for attorneys' fees and costs pursuant to 28:2412 (amgS, COURT STAFF) (Filed on 3/29/2019) (Entered: 04/08/2019)
834 ORDER of USCA denying motion for reconsideration (amgS, COURT STAFF) (Filed on 3/29/2019) (Entered: 04/08/2019)
836 USCA Letter as to 804 Notice of Appeal,, filed by National Counterterrorism Center, David M. Stone, Norm MIneta, Hilary Clinton, Terrorist Screening Center, Robert Mueller, United States Department of Homeland Security, Tom Ridge, Department of State, Eric H. Holder, Jr., Arthur M. Cummings, II, United States of America, Marion C. Blakey, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Donna A. Bucella, Leonard C. Boyle, 812 Notice of Appeal,, filed by Rahinah Ibrahim (amgS, COURT STAFF) (Filed on 3/29/2019) (Entered: 04/10/2019)

04/08/2019
04/24/2019 04/25/2019 05/08/2019 05/09/2019 05/15/2019 05/20/2019

835 MANDATE of USCA as to 804 Notice of Appeal,, filed by National Counterterrorism Center, David M. Stone, Norm MIneta, Hilary Clinton, Terrorist Screening Center, Robert Mueller, United States Department of Homeland Security, Tom Ridge, Department of State, Eric H. Holder, Jr., Arthur M. Cummings, II, United States of America, Marion C. Blakey, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Donna A. Bucella, Leonard C. Boyle, 812 Notice of Appeal,, filed by Rahinah Ibrahim (amgS, COURT STAFF) (Filed on 4/8/2019) (Entered: 04/10/2019)
837 CLERK'S NOTICE SETTING CMC: Case Management Statement due by 5/23/2019. Further Case Management Conference set for 5/30/2019 11:00 AM in San Francisco, Courtroom 12, 19th Floor. (This is a textonly entry generated by the court. There is no document associated with this entry.) (tlhS, COURT STAFF) (Filed on 4/24/2019) (Entered: 04/24/2019)
838 USCA letter from Supreme Court of the United states re: Case presented to Justice Gorsuch, who on April 22, 2019 extended the time to and including May 31, 2019. (amgS, COURT STAFF) (Filed on 4/25/2019) (Entered: 05/06/2019)
839 Consent MOTION Change Dates for Case Management Statement and Conference (with proposed order) filed by Department of State, Federal Bureau of Investigation, National Counterterrorism Center, Terrorist Screening Center, United States Department of Homeland Security. Responses due by 5/22/2019. (Attachments: # 1 Declaration)(Bloom, Karen) (Filed on 5/8/2019) (Entered: 05/08/2019)
840 ORDER GRANTING 839 STIPULATED REQUEST TO CHANGE DATES FOR CASE MANAGEMENT STATEMENT AND CONFERENCE. Further Case Management Conference set for 6/27/2019 11:00 AM in San Francisco, Courtroom 12, 19th Floor. Signed by Judge Alsup on 5/9/2019. (whalc1, COURT STAFF) (Filed on 5/9/2019) (Entered: 05/09/2019)
841 ADMINISTRATIVE MOTION Partially Lift Seal filed by Department of State, Federal Bureau of Investigation, National Counterterrorism Center, Terrorist Screening Center, United States Department of Homeland Security. Responses due by 5/20/2019. (Attachments: # 1 Declaration, # 2 Proposed Order)(Bloom, Karen) (Filed on 5/15/2019) (Entered: 05/15/2019)
842 OPPOSITION/RESPONSE (re 841 ADMINISTRATIVE MOTION Partially Lift Seal ) Plaintiff's Response and Objections to Defendants' Motion to Partially Lift Seal filed byRahinah Ibrahim. (Attachments: # 1 Declaration)(Peek, Christine) (Filed on 5/20/2019) (Entered: 05/20/2019)

05/23/2019 05/30/2019 05/31/2019
06/04/2019 06/05/2019 06/07/2019 06/07/2019 06/26/2019 10/08/2019
10/15/2019

843 NOTICE by Department of State, Federal Bureau of Investigation, National Counterterrorism Center, Terrorist Screening Center, United States Department of Homeland Security (Bloom, Karen) (Filed on 5/23/2019) (Entered: 05/23/2019)
844 ORDER GRANTING 841 MOTION TO PARTIALLY LIFT SEAL by Judge William Alsup. (whalc1, COURT STAFF) (Filed on 5/30/2019) (Entered: 05/30/2019)
845 ADMINISTRATIVE MOTION to Stay Upcoming Deadlines filed by Department of State, Federal Bureau of Investigation, National Counterterrorism Center, Terrorist Screening Center, United States Department of Homeland Security. Responses due by 6/4/2019. (Attachments: # 1 Declaration, # 2 Proposed Order)(Bloom, Karen) (Filed on 5/31/2019) (Entered: 05/31/2019)
847 USCA Case Number 18-1509 Supreme Court of the United States for 808 USCA Case Number, 769 USCA Case Number. (amgS, COURT STAFF) (Filed on 6/4/2019) (Entered: 06/10/2019)
846 ORDER GRANTING 845 ADMINISTRATIVE MOTION TO STAY by Judge William Alsup. (whalc1, COURT STAFF) (Filed on 6/5/2019) (Entered: 06/05/2019)
Set Deadlines/Hearings as to 846 Order: Further CMC vacated (tlhS, COURT STAFF) (Filed on 6/7/2019) (Entered: 06/07/2019)
Set Deadlines/Hearings: case management statement deadline terminated (tlhS, COURT STAFF) (Filed on 6/7/2019) (Entered: 06/07/2019)
848 ORDER of USCA as to 763 Notice of Appeal, filed by Rahinah Ibrahim, 769 USCA Case Number (amgS, COURT STAFF) (Filed on 6/26/2019) (Entered: 07/02/2019)
849 ADMINISTRATIVE MOTION Filing Public Versions of Pleadings Previously Filed Only Under Seal filed by Department of State, Federal Bureau of Investigation, National Counterterrorism Center, Terrorist Screening Center, United States Department of Homeland Security. Responses due by 10/15/2019. (Attachments: # 1 Declaration, # 2 Proposed Order)(Kelleher, Diane) (Filed on 10/8/2019) (Entered: 10/08/2019)
850 NOTICE by Department of State, Federal Bureau of Investigation, National Counterterrorism Center, Terrorist Screening Center, United States Department of Homeland Security re 849 ADMINISTRATIVE MOTION Filing Public Versions of Pleadings Previously Filed Only Under Seal (Kelleher, Diane) (Filed on 10/15/2019) (Entered: 10/15/2019)

10/15/2019
10/15/2019 10/16/2019 10/24/2019 10/24/2019 10/25/2019 10/31/2019
10/31/2019 11/08/2019 06/09/2020

851 OPPOSITION/RESPONSE (re 849 ADMINISTRATIVE MOTION Filing Public Versions of Pleadings Previously Filed Only Under Seal ) Plaintiff's Response and Objection to Defendants' Motion to File Public Versions of Pleadings Previously Filed Only Under Seal filed byRahinah Ibrahim. (Pipkin, Elizabeth) (Filed on 10/15/2019) (Entered: 10/15/2019)
852 ORDER of US Supreme Court granting leave to file a reply brief under seal with redacted copies for the public record and denying petition for a writ of certiorari. as to 847 USCA Case Number (amgS, COURT STAFF) (Filed on 10/15/2019) (Entered: 10/16/2019)
853 ORDER RE 849 ADMINISTRATIVE MOTION TO FILE PUBLIC VERSIONS OF PLEADINGS PREVIOUSLY FILED ONLY UNDER SEAL. Signed by Judge Alsup on 10/16/2019. (whalc1, COURT STAFF) (Filed on 10/16/2019) (Entered: 10/16/2019)
854 ADMINISTRATIVE MOTION extension of time re 853 Order filed by Department of State, Federal Bureau of Investigation, National Counterterrorism Center, Terrorist Screening Center. Responses due by 10/28/2019. (Attachments: # 1 Affidavit, # 2 Proposed Order)(Kelleher, Diane) (Filed on 10/24/2019) (Entered: 10/24/2019)
855 ORDER RE 854 UNOPPOSED ADMINISTRATIVE MOTION TO EXTEND DEADLINE TO RESPOND by Judge William Alsup. (whalc1, COURT STAFF) (Filed on 10/24/2019) (Entered: 10/24/2019)
856 NOTICE of Substitution of Counsel by Nicholas Patrick Cartier (Cartier, Nicholas) (Filed on 10/25/2019) (Entered: 10/25/2019)
857 RESPONSE re 853 ORDER RE 849 ADMINISTRATIVE MOTION TO FILE PUBLIC VERSIONS OF PLEADINGS PREVIOUSLY FILED ONLY UNDER SEAL by United States Department of Homeland Security (Attachments: # 1 Exhibit, # 2 Exhibit)(Cartier, Nicholas) (Filed on 10/31/2019) Modified on 10/31/2019 (amgS, COURT STAFF). (Entered: 10/31/2019)
858 ORDER GRANTING 849 MOTION TO FILE PUBLIC VERSIONS OF PLEADINGS PREVIOUSLY FILED ONLY UNDER SEAL by Judge William Alsup. (whalc1, COURT STAFF) (Filed on 10/31/2019) (Entered: 10/31/2019)
859 ORDER of USCA as to 763 Notice of Appeal, filed by Rahinah Ibrahim, 769 USCA Case Number (amgS, COURT STAFF) (Filed on 11/8/2019) (Entered: 11/12/2019)
860 NOTICE of Appearance by Indraneel Sur on behalf of Federal Defendants (Sur, Indraneel) (Filed on 6/9/2020) (Entered: 06/09/2020)

06/10/2020 06/10/2020
06/10/2020 07/22/2020 07/22/2020 07/28/2020

861 STIPULATION WITH PROPOSED ORDER Setting Case Management Schedule and Deadline for Defendants' Response to Plaintiff's Bill of Costs filed by Rahinah Ibrahim. (Elzankaly, Marwa) (Filed on 6/10/2020) (Entered: 06/10/2020)
862 ORDER GRANTING AS MODIFIED 861 STIPULATED REQUEST SETTING CASE MANAGEMENT SCHEDULE AND DEADLINE FOR DEFENDANTS RESPONSE TO PLAINTIFFS BILL OF COSTS. (whalc1, COURT STAFF) (Filed on 6/10/2020) (Entered: 06/10/2020)
Set/Reset Deadlines:, Set/Reset Hearing re 862 Order on Stipulation Joint Case Management Statement due by 7/22/2020. Case Management Conference set for 8/6/2020 at 11:00 AM. (tlS, COURT STAFF) (Filed on 6/10/2020) (Entered: 06/10/2020)
863 Statement re 826 Bill of Costs by United States of America. (Sur, Indraneel) (Filed on 7/22/2020) (Entered: 07/22/2020)
864 CASE MANAGEMENT STATEMENT Joint Case Management Statement filed by Rahinah Ibrahim. (McManis, James) (Filed on 7/22/2020) (Entered: 07/22/2020)
865 CLERK'S NOTICE - AUGUST 6, 2020 - 11:00 AM - CASE MANAGEMENT CONFERENCE WILL BE HELD TELEPHONICALLY.

Please allow adequate time to check-in with the courtroom deputy by connecting to the teleconference line 10 minutes prior to the scheduled start time.

This proceeding will be held by AT&T Conference Line. The court circulates the following conference number to allow the equivalent of a public hearing by telephone.

For conference line information, see: https://apps.cand.uscourts.gov/telhrg/

All counsel, members of the public and press please use the following dial-in information below to access the conference line:

Dial In: 888-684-8852

Access Code: 3707514

The Court may be in session with proceedings in progress when you connect to the conference line. Therefore, mute your phone if possible and wait for the Court to address you before speaking on the line. For call

clarity, parties shall NOT use speaker phone or earpieces for these calls, and where at all possible, parties shall use landlines.

PLEASE NOTE: Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited. See General Order 58 at Paragraph III.

08/06/2020 08/06/2020 08/15/2020
08/20/2020

(This is a text-only entry generated by the court. There is no document associated with this entry.),. (tlS, COURT STAFF) (Filed on 7/28/2020) (Entered: 07/28/2020)
866 Minute Entry for proceedings held before Judge William Alsup: Further Case Management Conference held by phone on 8/6/2020. Plaintiff's Updated Motion for Attorney Fees and Costs due by 8/20/2020. Defendant's Opposition due by 9/10/2020. Plaintiff's Reply due by 9/24/2020. Plaintiff's Updated Motion for Attorney Fees and Costs Hearing set for 10/8/2020 at 08:00 AM before Judge William Alsup.Total Time in Court: 3 minutes. Court Reporter: Debra Pas. Plaintiff Attorney: James McManis and Marwa Elzankaly. Defendant Attorney: Indraneel Sur. Attachment: Civil Minutes. (tlS, COURT STAFF) (Date Filed: 8/6/2020) (Entered: 08/06/2020)
867 TRANSCRIPT ORDER for proceedings held on 08-06-2020 before Judge William Alsup by Rahinah Ibrahim, for Court Reporter Debra Pas. (Elzankaly, Marwa) (Filed on 8/6/2020) (Entered: 08/06/2020)
868 Transcript of AT&T Teleconference Proceedings held on 8-6-2020, before Judge William H. Alsup. Court Reporter/Transcriber Debra L. Pas, CRR, telephone number (415) 431-1477/Email: DebraPas@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 867 Transcript Order ) Release of Transcript Restriction set for 11/13/2020. (Related documents(s) 867 ) (Pas, Debra) (Filed on 8/15/2020) (Entered: 08/15/2020)
869 MOTION for Attorney Fees Plaintiff's Renewed Motion for Attorney's Fees and Costs in Accordance with Ninth Circuit En Banc Opinion filed by Rahinah Ibrahim. Motion Hearing set for 10/8/2020 08:00 AM in San Francisco, Courtroom 12, 19th Floor before Judge William Alsup. Responses due by 9/10/2020. Replies due by 9/24/2020. (Attachments: # 1 Declaration Declaration of James McManis ISO Plaintiff's Renewed Motion for Attorney's Fees and Costs in Accordance with Ninth Circuit

09/09/2020 09/10/2020 09/10/2020

En Banc Opinion, # 2 Proposed Order [Proposed] Order Granting Plaintiff's Renewed Motion for Attorney's Fees and Costs in Accordance with Ninth Circuit En Banc Opinion)(McManis, James) (Filed on 8/20/2020) (Entered: 08/20/2020)
870 STIPULATION WITH PROPOSED ORDER re 866 Terminate Hearings, Case Management Conference - Further,Set Deadlines, Set Motion and Deadlines/Hearings, filed by United States of America. (Attachments: # 1 Declaration re Joint Stipulation Request to Extend Time for Response, # 2 Proposed Order Joint Stipulation Request to Extend Time for )(Sur, Indraneel) (Filed on 9/9/2020) Modified on 9/9/2020 (arkS, COURT STAFF). (Entered: 09/09/2020)
871 ORDER GRANTING 870 STIPULATED REQUEST TO EXTEND TIME FOR DEFENDANTS TO RESPOND TO PLAINTIFF'S RENEWED MOTION FOR ATTORNEY'S FEES AND COSTS AND SUBSEQUENT BRIEFING. (whalc1, COURT STAFF) (Filed on 9/10/2020) (Entered: 09/10/2020)
872 CLERK'S NOTICE Continuing Motion Hearing and Resetting Opposition/Reply Deadlines. Pursuant to the Court's Order at 871 and by stipulation of the parties, the Motion Hearing set for 10/8/2020 is continued to 11/5/2020 at 08:00 AM before Judge William Alsup. Responses to Related document 869 MOTION for Attorney Fees Plaintiff's Renewed Motion for Attorney's Fees and Costs in Accordance with Ninth Circuit En Banc Opinion, are due by 10/8/2020 at 12:00 PM. Replies due by 10/22/2020 at 12:00 PM.

This proceeding will be held by AT&T Conference Line. The court circulates the following conference number to allow the equivalent of a public hearing by telephone.

For conference line information, see: https://apps.cand.uscourts.gov/telhrg/

All counsel, members of the public and press please use the following dial-in information below to access the conference line:

Dial In: (888) 684-8852

Access Code: 3707514

The Court may be in session with proceedings in progress when you connect to the conference line. Therefore, mute your phone if possible and wait for the Court to address you before speaking on the line. For call

clarity, parties shall NOT use speaker phone or earpieces for these calls, and where at all possible, parties shall use landlines.
PLEASE NOTE: Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited. See General Order 58 at Paragraph III.
(This is a text-only entry generated by the court. There is no document associated with this entry.)(amd2S, COURT STAFF) (Filed on 9/10/2020) (Entered: 09/10/2020)

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09/19/2020 17:22:19

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Harrington
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