Steven M. Wilker, OSB No. 911882 Email: steven.wilker@tonkon.com
Tonkon Torp LLP 1600 Pioneer Tower 888 SW 5th Avenue Portland, OR 97204 Tel: 503.802.2040; Fax: 503.972.3740 Cooperating Attorney for the ACLU Foundation of Oregon
Ben Wizner (Admitted pro hac vice) Email: bwizner@aclu.org
Nusrat Jahan Choudhury (Admitted pro hac vice) Email: nchoudhury@aclu.org
American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel: 212.519.2500; Fax: 212.549.2654
Kevin Díaz, OSB No. 970480 Email: kdiaz@aclu-or.org
ACLU Foundation of Oregon P.O. Box 40585 Portland, Oregon 97240 Tel: 503.227.6928; Fax: 503.227.6948
Ahilan T. Arulanantham (Admitted pro hac vice) Email: aarulanantham@aclu-sc.org
Jennifer Pasquarella (Admitted pro hac vice) Email: jpasquarella@aclu-sc.org
ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 Tel: 213.977.9500; Fax: 213.977.5297
Alan L. Schlosser (Admitted pro hac vice) Email: aschlosser@aclunc.org
Julia Harumi Mass (Admitted pro hac vice) Email: jmass@aclunc.org
ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111 Tel: 415.621.2493; Fax: 415.255.8437
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Laura Schauer Ives (Admitted pro hac vice) Email: lives@aclu-nm.org
ACLU Foundation of New Mexico P.O. Box 566 Albuquerque, NM 87103 Tel: 505.243.0046; Fax: 505.266.5916
Reem Salahi (Admitted pro hac vice) Email: rsalahi@salahilaw.com
Salahi Law 429 Santa Monica Blvd, Suite 550 Santa Monica, CA 90401 Tel: 510.225.8880 Cooperating Attorney for the ACLU Foundation of Southern California
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

AYMAN LATIF, MOHAMED SHEIKH ABDIRAHMAN KARIYE, RAYMOND EARL KNAEBLE IV, FAISAL NABIN KASHEM, ELIAS MUSTAFA MOHAMED, STEVEN WILLIAM WASHBURN, SAMIR MOHAMED AHMED MOHAMED, ABDULLATIF MUTHANNA, NAGIB ALI GHALEB, SALEH A. OMAR, ABDUL HAKEIM THABET AHMED, IBRAHEIM Y. MASHAL, SALAH ALI AHMED, AMIR MESHAL, STEPHEN DURGA PERSAUD, ADAMA BAH, HALIME SAT,

No. 10-cv-750 (BR)
FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Plaintiffs,
v.
ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States; ROBERT S. MUELLER, III, in his official capacity as Director of the Federal Bureau of Investigation; and TIMOTHY J. HEALY, in his official capacity as Director of the Terrorist Screening Center,

(Violation of Fifth and Fourteenth Amendment Rights, the Immigration and Nationality Act, and the Administrative Procedure Act)

Defendants.

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INTRODUCTION 1. The United States’ system of screening commercial airline passengers against databases of suspected terrorists is broken. Thousands of people have been barred altogether from commercial air travel without any opportunity to confront or rebut the basis for their inclusion, or apparent inclusion, on a government watch list known as the “No Fly List.” The result is a vast and growing list of individuals whom, on the basis of error or innuendo, the government deems too dangerous to fly, but too harmless to arrest. Many of these individuals, like the Plaintiffs in this action, are citizens and lawful permanent residents of the United States; some, including four Plaintiffs in this action, are veterans of the United States Armed Forces. Some U.S. citizens and lawful permanent residents have been placed on the list while traveling abroad and therefore have found themselves stranded in foreign countries, without explanation or appropriate visas, unable to return home to their families, jobs, and needed medical care in the United States. The Constitution does not permit such a fundamental deprivation of rights to be carried out under a veil of secrecy and in the absence of even rudimentary process. 2. Ayman Latif, Raymond Earl Knaeble IV, Faisal Nabin Kashem, Elias Mustafa Mohamed, Steven William Washburn, Samir Mohamed Ahmed Mohamed, Abdullatif Muthanna, and Nagib Ali Ghaleb are U.S. citizens who were recently denied boarding on international flights to the United States and/or over U.S. airspace when seeking to return home to the United States from abroad. Mohamed Sheikh Abdirahman Kariye, Ibraheim Y. Mashal, Salah Ali Ahmed, Amir Meshal, and Stephen Durga Persaud are U.S. citizens who were recently denied boarding on flights originating in the United States or in U.S. territory. Saleh Omar and Abdul Hakeim Thabet Ahmed are lawful permanent residents of the United States who were recently denied boarding on international flights bound for the United States while seeking to
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return home to the United States from abroad. Adama Bah, a citizen of Guinea with refugee status in the United States, and Halime Sat, a lawful permanent resident of the United States, were recently denied boarding on flights originating in the United States.
3. Mr. Latif, Mr. Kariye, Mr. Knaeble, Mr. Kashem, Mr. Elias Mustafa Mohamed, Mr. Washburn, Mr. Samir Mohamed Ahmed Mohamed, Mr. Muthanna, Mr. Ghaleb, Mr. Omar, Mr. Abdul Hakeim Thabet Ahmed, Mr. Salah Ali Ahmed, Mr. Mashal, Mr. Meshal, Mr. Persaud, Ms. Bah, and Ms. Sat, (collectively “Plaintiffs”) believe that they are on the No Fly List. Agents of the Federal Bureau of Investigation or other U.S. officials have told Mr. Latif, Mr. Knaeble, Mr. Kashem, Mr. Elias Mustafa Mohamed, Mr. Washburn, Mr. Samir Mohamed Ahmed Mohamed, Mr. Muthanna, Mr. Ghaleb, Mr. Omar, Mr. Abdul Hakeim Thabet Ahmed, Mr. Mashal, Mr. Meshal, Mr. Persaud, and Ms. Sat that they are on the No Fly List. A police officer told Ms. Bah that she is on the No Fly List. The Plaintiffs do not know why they are on the No Fly List or how they can get off it. The Plaintiffs have flown numerous times to, from, and within the United States in recent years without incident.
4. Plaintiffs have submitted applications for “redress” through the only available government mechanism, to no avail. Each Plaintiff has sought explanations from the Department of Homeland Security and the Transportation Security Administration, but no government official or agency has offered any explanation for Plaintiffs’ apparent placement on the No Fly List or any other watch list. Nor has any government official or agency offered any of the Plaintiffs any meaningful opportunity to contest his or her placement on such a list.
5. Through this action for declaratory and injunctive relief, Plaintiffs seek the removal of their names from any government watch list that has prevented them from flying. In
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the alternative, Plaintiffs seek a hearing in which they can confront any evidence against them and contest their unlawful designation.
PARTIES 6. Plaintiff Ayman Latif is a thirty-two year-old U.S. citizen and disabled veteran of the U.S. Marine Corps. He was born and raised in Miami, Florida. Mr. Latif resides in Egypt with his wife and two children. He has been unable to return to the United States to attend a Disability Evaluation with the U.S. Department of Veterans Affairs or to visit family because Defendants barred him from boarding commercial flights to or from the United States or over U.S. airspace. Since the commencement of this litigation, Mr. Latif has been told by a U.S. official that he will be allowed to fly to the United States on certain commercial airlines as a “one-time thing.” If he is permitted to fly home to the United States, Mr. Latif believes that he will not be able to return to Egypt to continue his Arabic language studies, because Defendants continue to bar him from flying on commercial airlines to and from the United States or over U.S. airspace at any other time or for any other purpose than a one-time trip from Egypt to the United States. 7. Plaintiff Mohamed Sheikh Abdirahman Kariye is a forty-nine year-old naturalized U.S. citizen and resident of Portland, Oregon. He is the Imam at the Masjid AsSaber in Portland. He cannot visit his daughter, who resides in Dubai, or relatives in Somalia because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace. 8. Plaintiff Raymond Earl Knaeble IV is a twenty-nine year-old U.S. citizen and U.S. Army veteran. He was born and raised in California. Mr. Knaeble is currently located in Colombia, where he traveled for his wedding and to visit relatives. Mr. Knaeble lost a job that
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was offered to him when he was unable to return home to the United States for a required preemployment medical examination because Defendants barred him from boarding a commercial flight to the United States. Mr. Knaeble thereafter sought to travel to the United States by flying to Mexico and entering the United States over land, but he was stopped and returned to Colombia by Mexican authorities. Upon information and belief, Mexican authorities deported Mr. Knaeble because of his inclusion on the No Fly List, as there was no known legal barrier to his being permitted to transit through Mexico. Mr. Knaeble cannot return home to the United States to visit relatives, including his daughter in Texas, or to secure a job, because Defendants continue to bar him from boarding commercial flights to or from the United States or over U.S. airspace.
9. Plaintiff Faisal Nabin Kashem is a twenty-two year-old citizen of the United States and a resident of Connecticut. Since January 2010, he has been enrolled in a twoyear Arabic language certificate program at the Islamic University of Al-Madinah AlMunawwarah in Medina, Saudi Arabia. Mr. Kashem remains in Medina, cannot return home to Connecticut, and cannot visit his family in the United States because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace.
10. Plaintiff Elias Mustafa Mohamed is a twenty year-old citizen of the United States and a resident of Seattle, Washington. Since January 2010, he has been enrolled in a twoyear Arabic language certificate program at the Islamic University of Al-Madinah AlMunawwarah in Medina, Saudi Arabia. Mr. Mohamed remains in Medina, cannot return home to Seattle, and cannot visit his family in the United States because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace.
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11. Plaintiff Steven William Washburn is a fifty-four year-old U.S. citizen and U.S. Air Force veteran. Mr. Washburn was born and raised in Las Cruces, New Mexico. He was denied boarding by the Defendants on a commercial flight from the United Kingdom to the United States. Mr. Washburn thereafter attempted to fly from London to Mexico in order to enter the United States by land, but his flight was diverted back to London several hours after take-off. Upon information and belief, the airline diverted Mr. Washburn’s flight from London to Mexico because of his inclusion on the No Fly List, as there was no known legal barrier to his being permitted to fly to, or transit through, Mexico. Mr. Washburn thereafter undertook a journey that lasted over fifty hours and required him to travel by plane from Dublin to Frankfurt, Frankfurt to São Paulo, São Paulo to Lima, Lima to Mexico City, and Mexico City to Ciudad Juarez; to endure hours of detention and interrogation by Mexican authorities in Mexico City and Ciudad Juarez; and to travel over land from Ciudad Juarez to Las Cruces, where he currently resides. He cannot see his wife, a Spanish citizen who is located in Ireland and is currently unable to secure a visa for travel to the United States, because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace.
12. Plaintiff Nagib Ali Ghaleb is a thirty-one year-old U.S. citizen and resident of San Francisco, California. Mr. Ghaleb was denied boarding by the Defendants on commercial flights from Frankfurt, Germany and from Dubai, United Arab Emirates to the United States. After the commencement of this litigation, an FBI agent visited Mr. Ghaleb’s brother in Detroit and told him that Mr. Ghaleb would be permitted to fly to the United States. Thereafter, an official of the U.S. Embassy in Sana’a, Yemen told Mr. Ghaleb that he would be permitted to fly to the United States and instructed him to make arrangements to fly home by commercial air. Mr. Ghaleb subsequently flew on commercial flights from Sana’a to San
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Francisco via Frankfurt. Because Defendants have twice barred Mr. Ghaleb from boarding commercial flights to or from the United States or over U.S. airspace, Mr. Ghaleb does not know whether his recent permission to fly by from Sana’a to San Francisco signifies that Defendants have granted him a one-time waiver to fly or whether they have removed him from a government watch list. Mr. Ghaleb believes that he cannot fly to Yemen to visit his wife and children because Defendants continue to bar him from flying commercial airlines to and from the United States or over U.S. airspace at any other time or for any other purpose than a one-time trip from Yemen to the United States.
13. Plaintiff Samir Mohamed Ahmed Mohamed is a twenty-three year-old U.S. citizen and resident of Lindsay, California. Mr. Mohamed is currently located in Sana’a, Yemen, where he traveled to visit his family in September 2009. He remains in Sana’a, cannot return home to California, and risks losing his job because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace.
14. Plaintiff Abdullatif Muthanna is a twenty-seven year-old U.S. citizen who resides in Rochester, New York. He suffers from serious medical conditions that require treatment by his general physician and specialists, all of whom are located in New York. Mr. Muthanna is currently located in southern Yemen, where he traveled to visit relatives. He remains in Yemen, cannot return home, and cannot receive needed medical care in the United States because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace.
15. Plaintiff Saleh A. Omar is a thirty-five year-old lawful permanent resident of the United States. He is currently located in Yemen, where he traveled to visit relatives. Mr. Omar has been unable return to his home and job in the United States because Defendants barred
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him from boarding commercial flights to or from the United States or over U.S. airspace. Since the commencement of this litigation, Mr. Omar has been told by a U.S. official to make arrangements to travel home by commercial air. If he is permitted to fly home to the United States, Mr. Omar believes that he will not be able to return to Yemen to visit family because Defendants continue to bar him from flying commercial airlines to and from the United States or over U.S. airspace at any other time or for any other purpose than a one-time trip from Yemen to the United States. Although Mr. Omar is attempting to make arrangements to fly home, he fears that the Defendants’ actions will result in his involuntary exclusion from the United States for over 180 days, that the federal government may initiate removal proceedings against him as a result, and that the Defendants actions will jeopardize his right to become a naturalized U.S. citizen.
16. Plaintiff Abdul Hakeim Thabet Ahmed is a citizen of Yemen who has been a lawful permanent resident of the United States since 1990. He is a resident of Rochester, New York, where he works as a vendor. He cannot return to his home and job in the United States and has been involuntarily excluded from the United States for more than 180 days because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace. Mr. Ahmed fears that the federal government may initiate removal proceedings against him and that the Defendants’ bar on his ability to return home by plane threatens to jeopardize his right to become a naturalized U.S. citizen.
17. Plaintiff Ibraheim (Abe) Y. Mashal is a thirty year-old U.S. citizen and veteran of the U.S. Marine Corps. He resides with his wife and three children in St. Charles, Illinois and works as a traveling dog trainer. He was recently unable to travel from Chicago to Spokane, Washington, where he was scheduled to provide dog training services to a client,
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because Defendants barred him from boarding commercial flights to or from the United States or over U.S. airspace.
18. Plaintiff Salah Ali Ahmed is a fifty-eight year-old U.S. citizen and resident of Norcross, Georgia, where he works as an electrical technician. Mr. Ahmed has lived in Georgia since he moved to the United States from Somalia in 1992. His wife and five of his six children are also U.S. citizens. Mr. Ahmed cannot travel to Yemen to visit relatives because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace.
19. Plaintiff Amir Meshal is a twenty-seven year-old U.S. citizen and resident of New Jersey, where he currently works as a taxi driver. Mr. Meshal is unable to fly for business or personal reasons because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace.
20. Plaintiff Stephen Durga Persaud is a twenty-nine-year old U.S. citizen and resident of Irvine, California. He was denied boarding by the Defendants on a commercial flight from St. Thomas, U.S. Virgin Islands to the United States. Mr. Persaud thereafter undertook a journey that lasted more than nine days in an effort to reach Irvine, where his pregnant wife and son awaited him, before the birth of his second child. This journey required Mr. Persaud to travel for five days by ship from St. Thomas to Miami and for four days by train from Miami to Los Angeles. Mr. Persaud remains unable to fly for business or personal reasons because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace.
21. Plaintiff Adama Bah is a twenty-two year-old citizen of Guinea who was granted refugee status in the United States in 2007. She resides in the city of New York, where
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she works as a caregiver to a family with two children and a disabled parent. She is unable to earn certain wages as a caregiver and to visit close friends who live in Ohio, Denver and Atlanta because Defendants have barred her from boarding commercial flights to or from the United States or over U.S. airspace.
22. Plaintiff Halime Sat is a twenty-eight year-old German citizen and lawful permanent resident of the United States. She was born in Bursa, Turkey and was raised in Cologne, Germany. Ms. Sat lives with her husband in Corona, California. She was recently prevented from attending a conference in the Bay Area and was forced to withdraw from an educational program in New York and to cancel plans to attend a family reunion in Germany because Defendants have barred her from boarding commercial flights to or from the United States or over U.S. airspace.
23. Defendant Eric H. Holder, Jr. is the Attorney General of the United States and heads the Department of Justice (“DOJ”), a department of the United States government that oversees the Federal Bureau of Investigation (“FBI”). The FBI in turn administers the Terrorist Screening Center (“TSC”), which was created to consolidate the government’s approach to terrorism screening. The TSC develops and maintains the federal government’s consolidated Terrorist Screening Database (the “watch list”), of which the No Fly List is a component. Defendant Holder is sued in his official capacity.
24. Defendant Robert S. Mueller is Director of the Federal Bureau of Investigation, which administers the TSC. Defendant Mueller is sued in his official capacity.
25. Defendant Timothy J. Healy is Director of the Terrorist Screening Center and is sued in his official capacity.
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JURISDICTION AND VENUE 26. This is a complaint for injunctive and declaratory relief based upon civil rights violations committed by the Terrorist Screening Center, Federal Bureau of Investigation, and U.S. Department of Justice in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution, the Immigration and Nationality Act, and the Administrative Procedure Act. 27. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 702. 28. The Court has the authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. 29. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) because Defendants are officers of agencies of the United States sued in their official capacity and because this judicial district is where Plaintiff Mohamed Sheikh Abdirahman Kariye resides and where a substantial part of the events or omissions giving rise to the claim occurred.
FACTUAL ALLEGATIONS A. The Federal Government’s Terrorist Watch List 30. In September 2003, Attorney General John Ashcroft established the Terrorist Screening Center to consolidate the government’s approach to terrorism screening. The TSC, which is administered by the FBI, develops and maintains the federal government’s consolidated Terrorist Screening Database (the “watch list”). TSC’s consolidated watch list is the federal government’s master repository for suspected international and domestic terrorist records used for watch list-related screening. 31. TSC sends records from its terrorist watch list to other government agencies that in turn use those records to identify suspected terrorists. For example, applicable
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TSC records are provided to the Transportation Security Administration (“TSA”) for use by airlines in pre-screening passengers and to U.S. Customs and Border Protection (“CBP”) for use in screening travelers entering the United States. Thus, while the TSC maintains and controls the database of suspected terrorists, it is the front-line agencies like the TSA that carry out the screening function. In the context of air travel, when individuals make airline reservations and check in at airports, the front-line screening agency, TSA, or the airline, conducts a name-based search of the individual to determine whether he or she is on a watch list.
32. Two government entities are primarily responsible for “nominating” individuals for inclusion in the terrorist watch list—the National Counterterrorism Center (“NCTC”) and the Federal Bureau of Investigation. The NCTC, which is managed by the Office of the Director of National Intelligence, relies on information from other federal departments and agencies when including known or suspected international terrorists in its Terrorist Identities Datamart Environment (“TIDE”) database. TIDE also contains records for spouses and children of known or reasonably suspected terrorists, as well as other individuals who have a close relationship with known or reasonably suspected terrorists. The NCTC reviews TIDE entries and recommends specific entries to the Terrorist Screening Center for inclusion in the watch list. TIDE is the source of all international terrorist identifier information included in the watch list. The FBI, in turn, nominates to the watch list individuals with suspected ties to domestic terrorism. TSC makes the final decision on whether a nominated individual meets the minimum requirements for inclusion into the watch list as a known or suspected terrorist and which screening systems will receive the information about that individual.
33. Defendant Healy, Director of the TSC, has testified that in evaluating whether an individual meets the criteria for inclusion on the consolidated watch list, the TSC
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determines whether the nominated individual is “reasonably suspected” of having possible links to terrorism. According to the TSC, “reasonable suspicion requires 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.” Defendants have not stated publicly what standards or criteria are applied to determine whether an individual on the consolidated watch list will be placed on the No Fly List that is distributed to TSA.
34. Under these standards, the number of records in the consolidated watch list has swelled to an estimated one million records, representing the identities and aliases of approximately 400,000 individuals. Once an individual has been placed on the watch list, the individual remains on the list until the agency that supplied the initial information in support of the nomination determines that the individual should be removed.
35. A 2007 GAO report found that the TSC rejects approximately one percent of nominations to the watch list.
36. In response to intelligence failures that permitted Nigerian citizen Umar Farouk Abdulmutallab, a would-be bomber, to fly from Amsterdam to Detroit on December 25, 2009, the Defendants have dramatically expanded the watch list as a whole and the No Fly List in particular. At a recent Senate hearing, Russell E. Travers, Deputy Director of the National Counterterrorism Center, stated that “[t]he entire federal government is leaning very far forward on putting people on lists,” and that the watch list is “getting bigger, and it will get even bigger.”
B. Inadequacy of Redress Procedure 37. The government entities and individuals involved in the creation, maintenance, support, modification, and enforcement of the No Fly List, including Defendants,
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have not provided travelers with a fair and effective mechanism through which they can challenge their inclusion on the No Fly List.
38. An individual who has been barred from boarding an aircraft on account of apparent inclusion on the No Fly List has no clear avenue for redress, because no single government entity is responsible for removing an individual from the list. The TSC, which is administered by the FBI, does not accept redress inquiries directly from the public, nor does it directly provide final disposition letters to individuals who have submitted redress queries. Rather, individuals who seek redress after having been prevented from flying must complete a standard form and submit it to the Department of Homeland Security Traveler Redress Inquiry Program (“DHS TRIP”). The DHS TRIP Program provides each individual with a “Redress Control Number” associated with the individual’s report. Yet it is the TSC that has responsibility for consulting with relevant agencies to determine whether an individual has been appropriately listed and should remain on the list.
39. Once the TSC makes a determination regarding a particular individual’s status on the watch lists, including the No Fly List, the front-line screening agency responds to the individual with a letter that neither confirms nor denies the existence of any terrorist watch list records relating to the individual. The government does not provide the individual with any opportunity to confront, or to rebut, the grounds for his possible inclusion on the watch list. Thus, the only “process” available to individuals who are prevented from boarding commercial flights is to submit their names and other identifying information to the Department of Homeland Security and hope that an unknown government agency corrects an error or changes its mind.
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C. Plaintiffs’ Allegations Ayman Latif 40. Plaintiff Ayman Latif is a U.S. citizen who was born and raised in Miami, Florida. He is a veteran of the U.S. Marine Corps. In 1999, the U.S. Department of Veterans Affairs determined that Mr. Latif was disabled as a result of serious injuries to his neck, back, and hips sustained during an auto accident during his final year of service as a Marine. 41. Mr. Latif has worked for the U.S. government for more than fourteen years, both as a Marine and as an employee of the U.S. Postal Service. 42. In November 2008, Mr. Latif moved with his wife and family to Egypt so that he could study Arabic. The family first settled in Cairo, where they lived for about one year. Mr. Latif and his family then moved to Munifiyyah, a town located two hours outside of Cairo. 43. After the birth of their daughter in October 2009, Mr. Latif and his wife planned to travel with their children to Miami to visit relatives, including his mother, who was elderly and very ill. Mr. Latif purchased tickets for himself and his family to travel from Cairo to Miami on Iberia Airlines with a change of aircraft in Madrid. 44. On the evening of April 13, 2010, Mr. Latif and his family went to the outdoor baggage scanning area for Iberia Airlines at Cairo International Airport to procure boarding passes for Iberia Airlines Flight 3735 from Cairo to Madrid and Flight 7001 from Madrid to Miami. Upon learning that the family was traveling to the United States, an airline employee took the family’s passports and made a call on his cell phone. The airline employee returned the passports to Mr. Latif and escorted the family to a line for business class passengers. When Mr. Latif and his family reached the front of the line, a ticketing agent stated, “I’m sorry
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sir. We have just received a message from headquarters in Spain that you cannot board the plane.”
45. Mr. Latif was surprised. He asked to speak to an Iberia Airlines supervisor. Mr. Latif explained that he and his family were U.S. citizens and that he knew of no reason why they would not be permitted to fly to the United States via Madrid. The supervisor stated that the U.S. Embassy, not Iberia Airlines headquarters in Spain, had sent the message that Mr. Latif was not permitted to board the flight. The supervisor stated that there was nothing he could do to assist Mr. Latif.
46. Mr. Latif immediately called the U.S. Embassy in Cairo from his cell phone. He spoke to an official who instructed him to go to the U.S. Embassy the next morning for more information. The Iberia Airlines supervisor with whom Mr. Latif had spoken also called the U.S. Embassy and secured another embassy counselor on the phone. This counselor told Mr. Latif that he might be on a “TSA list” and also instructed him to go to the U.S. Embassy first thing the next morning.
47. Mr. Latif and his family left the airport and spent the night in a hotel located close to the U.S. Embassy.
48. The following morning, Mr. Latif went to the U.S. Embassy. He spoke to an embassy official and explained that he and his family had been denied boarding passes for Iberia Airlines Flights 3735 and 7001. The official stated that the U.S. Embassy had no information about why this had occurred and that he could not do anything about it. The counselor told Mr. Latif that embassy officials would look into the matter and asked him to be patient.
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49. Mr. Latif returned to Munifiyyah with his family because he could not afford to pay for Cairo hotels while waiting for embassy officials to look into his situation.
50. Mr. Latif sought urgently to find out why he was denied the ability to board his Iberia Airlines flights. He called the offices of Congressman Kendrick Meek of the 17th Congressional District of Florida and of Bill Nelson and George Le Mieux, the United States Senators from the State of Florida.
51. On or around April 15, 2010, Mr. Latif completed a DHS TRIP form online. He was assigned Redress Control Number 2095199.
52. At or around the same time, Mr. Latif called the U.S. Customs and Border Protection information line in Washington, D.C. and asked why he had been denied boarding on his Iberia Airlines flight. CBP supervisor Olga DeLeon told him that she could not assist him, but that he should call the U.S. Embassy in Cairo and ask to speak with the FBI Liaison.
53. Mr. Latif called the U.S. Embassy in Cairo and asked to be connected to the FBI Liaison. A government official listened to his complaint and said that she would forward it to the appropriate official.
54. That evening, Legal Attaché Hashim El-Gamil called Mr. Latif and told him that the FBI was investigating his case and that two FBI agents from Miami were traveling to Cairo to meet with him. Mr. El-Gamil explained that it could take several weeks to arrange a meeting between Mr. Latif and the FBI agents because the agents were facing difficulties in securing visas to travel to Egypt.
55. About one month later, a U.S. Embassy official called Mr. Latif and asked him to come to the embassy to speak with two FBI agents. At the meeting, one agent introduced herself to Mr. Latif as FBI Special Agent Janet Waldron. Agent Waldron and another FBI agent
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questioned Mr. Latif for at least four hours. Agent Waldron told Mr. Latif that he was on the No Fly List.
56. The next day, Agent Waldron and the other FBI agent questioned Mr. Latif for at least four hours. At the end of the interrogation, the agents told Mr. Latif that they would file a report with FBI Headquarters.
57. In or around the middle of May 2010, Mr. Latif’s mother-in-law called him from Florida to tell him that she had received a correspondence from the U.S. Department of Veterans Affairs (“VA”) addressed to him. He asked her to open the letter. The letter was dated May 12, 2010 and stated that the “combined evaluation for all of [Mr. Latif’s] service-connected disabilities will drop from 50% to 20%” and that Mr. Latif’s monthly benefit would accordingly be reduced from $899.00 to $293.00. Mr. Latif did not understand why the VA had decided to reduce its evaluation of his disability and the monthly rate of compensation that he would receive for his service-connected disabilities.
58. Mr. Latif called the VA. A VA officer indicated that Mr. Latif had been scheduled to attend a Disability Evaluation on April 15, 2010, which Mr. Latif had missed. Because he had been denied boarding on his April 13, 2010 Iberia Airlines flights to Madrid and Miami, Mr. Latif was not in Florida on April 15, 2010 and could not have attended the evaluation, which would have taken place in the Veterans Affairs hospital in his home town.
59. Ordinarily, if an individual misses a VA Disability Evaluation, the appointment is rescheduled for a later date. Mr. Latif was unable to reschedule his Disability Evaluation, however, because he was unable to fly from Egypt to the United States to attend a rescheduled VA appointment due to his placement on the No Fly List.
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60. On June 1, 2010, Mr. Latif went to the U.S Embassy in Cairo to speak to Mr. El-Gamil regarding the outcome of his interview with the two FBI Agents from Miami. Mr. El-Gamil stated that the agents had submitted a report to FBI headquarters with a recommendation that Mr. Latif be granted a waiver to fly to the United States, but that FBI headquarters was not satisfied with the report. He told Mr. Latif that the FBI was sending two other FBI agents to Egypt to speak with Mr. Latif and to administer a polygraph test. Mr. Latif emphasized to Mr. El-Gamil that he was experiencing great hardship in not being able to fly to the United States, particularly because he was unable to travel to Florida to attend a rescheduled Disability Evaluation with the VA and because the VA decided to reduce his benefits as a result.
61. On or around June 4, 2010, Mr. Latif completed a second DHS TRIP form online. He was assigned Redress Control Number 2100977.
62. On June 29, 2010, Mr. Latif and his family moved from Munifiyyah to lower-cost housing in Alexandria, Egypt, due to the impending reduction in Mr. Latif’s VA benefits. Moving his family to a new home and carrying out associated and necessary renovations on the new, lower-cost housing aggravated Mr. Latif’s service-connected disabilities.
63. On June 30, 2010, Mr. Latif filed the instant action against the Defendants for violation of his constitutional rights, seeking removal of his name from any government watch list that has prevented him from flying or, in the alternative, a hearing in which he can confront any evidence against him and contest his unlawful designation.
64. On July 7, 2010, Mr. El-Gamil called Mr. Latif. He stated that Mr. Latif would be permitted to fly to the United States as a “one-time thing,” but that he could not guarantee that Mr. Latif would be able to return to Egypt by commercial air after this trip. Mr.
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El-Gamil explained that Mr. Latif would have to straighten out his placement on the No Fly List while in the United States. Mr. Latif asked if he and his family would be permitted to fly home on the Iberia Airlines tickets that were not used when he was denied boarding. He explained that he could not afford to purchase new tickets or to pay penalty fees to use the Iberia Airlines tickets. Mr. El-Gamil stated that he would inquire as to whether there were any restrictions on the flights on which Mr. Latif would be permitted to fly home.
65. Several days later, Mr. El-Gamil called Mr. Latif. He stated that Mr. Latif would be permitted to travel to the United States on flights run by any American commercial airline or any foreign carrier that is a sister company of an American commercial airline. Mr. ElGamil instructed Mr. Latif to ask Iberia Airlines to book him and his family to travel to the United States on such flights.
66. Mr. Latif contacted Iberia Airlines to book tickets to travel home under the parameters explained by Mr. El-Gamil. An airline official told him his request would take some time to process.
67. During the following week, Mr. El-Gamil called Mr. Latif several times to ask whether Mr. Latif had booked tickets to return to the United States by commercial air.
68. During the week of July 26, 2010, Mr. Latif received a call from Mark Perry of Citizenship Services at the U.S. Embassy in Cairo. Mr. Perry asked Mr. Latif if he had made arrangements to fly to the United States. Mr. Latif described his efforts to book tickets through Iberia Airlines to fly to the United States under the parameters explained by Mr. ElGamil and explained that Iberia Airlines was resisting rebooking him on such flights and had not yet made a final decision.
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69. Mr. Latif received a July 27, 2010 letter from the Disabled American Veterans (“DAV”) National Service Office. The letter stated that the DAV had “reviewed the most recent VA decision concerning [Mr. Latif’s] claim for benefits.” It reported that the VA had reduced its evaluation of Mr. Latif’s residual cervical sprain/strain and the degenerative disc disease of his lumbar spine from “20 percent disabling” to 0 percent, effective October 1, 2010.
70. Mr. Latif presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List.
71. Although Mr. Latif is currently attempting to arrange for commercial air travel to the United States, to this day, he does not know whether he can fly commercial airlines to and from the United States or over U.S. airspace. The Defendants denied him boarding on commercial flights from Cairo to the United States via Madrid. Mr. Latif was not told why this occurred and was subsequently told by FBI agents that he would not be permitted to travel on any commercial flight to the United States. After the commencement of this litigation, Mr. Latif was told by a U.S. government official that he would be allowed to fly to the United States on certain commercial airlines as a “one-time thing.” Mr. Latif was not told, however, whether he has been granted a one-time waiver to fly home or whether his name has been removed from the No Fly list, permitting him to fly on commercial airlines to and from the United States or over U.S. airspace.
72. Mr. Latif fears that his name remains on the No Fly List and knows of no way to travel from Egypt to the United States by boat. If Mr. Latif is denied boarding on the flight to the United States that he is attempting to secure, he will be unable to return home, will not be able to visit family members in the United States, and will not be able to participate in a Disability Evaluation that would prevent his veterans’ disability benefits from being drastically
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reduced and/or entirely withdrawn. If Mr. Latif is permitted to fly from Egypt to the United States and Defendants subsequently deny him boarding on a commercial flight, Mr. Latif will be unable to return to Egypt where he seeks to continue his Arabic language studies.
Raymond Earl Knaeble IV 73. Plaintiff Raymond Earl Knaeble IV is a U.S. citizen who was born and raised in Ventura and Santa Barbara, California. He is also a veteran of the U.S. Army. 74. In 2006, Mr. Knaeble moved to Kuwait to work for ITT Systems Corporation (“ITT Systems”), a multinational company specializing in global defense and security. 75. In late 2008, Mr. Knaeble converted to Islam. From August 2009 to December 2009, he studied at the Saba Institute, a language school in Sana’a, Yemen that specializes in teaching Arabic to foreigners. Mr. Knaeble returned to Kuwait and created a website, www.islambrotherhood.com, to provide the public with information about Islamic beliefs and practices. 76. On March 1, 2010, ITT Systems offered Mr. Knaeble a position as a heavy mobile equipment mechanic/driver in Qatar. The effective date of employment was contingent upon Mr. Knaeble’s passage of a pre-employment medical exam that was to be scheduled within days of acceptance of the offer. ITT Systems indicated that a medical exam administered in the United States would be processed more quickly than one administered in a foreign country. 77. Mr. Knaeble accepted the ITT Systems position in Qatar and scheduled his physical examination to take place in Killeen, Texas on March 16, 2010. Prior to moving to Qatar to start his new job, Mr. Knaeble planned to travel to Bogota, Colombia so that he could marry his fiancé, a Colombian citizen, and spend some time with her family and his relatives,
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including his grandfather and aunts. He also planned to visit his daughter in Texas and his mother and sisters in California while in the United States following his scheduled medical examination and before moving to Qatar with his new wife.
78. Mr. Knaeble booked airline tickets to travel first on Turkish Airlines and Iberia Airlines from Kuwait to Bogota, where he would spend several days for his wedding and visiting relatives, and then from Bogota to the United States. His itinerary for travel from Kuwait to Bogota included changes of aircraft in Istanbul, Barcelona, and Madrid. He chose this itinerary in order to book the lowest fares he could find from Kuwait to Bogota. His itinerary for travel from Bogota to the United States scheduled him to fly from Bogota to Miami on LAN Airlines and from Miami to Killeen on American Airlines with a change of aircraft in Dallas.
79. On March 10 and 11, 2010, Mr. Knaeble flew from Kuwait to Bogota without incident.
80. On March 14, 2010, Mr. Knaeble went to Aeropuerto Internacional El Dorado in Bogota. An airline official denied Mr. Knaeble a boarding pass for LAN Airlines Flight 570 to Miami and told him that no airlines would permit him to board a flight bound for the United States. He was instructed to contact the U.S. Embassy in Bogota.
81. Mr. Knaeble went to the U.S. Embassy the following day, on March 15, 2010. He spoke with Scott Renner, American Citizen Services Chief. Mr. Renner took Mr. Knaeble’s passport and told him to call him the next day. Mr. Renner did not return Mr. Knaeble’s passport that day.
82. Mr. Knaeble called the U.S. Embassy on March 16, 2010. Embassy officials instructed him to return several days later.
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83. Approximately four days later, Mr. Knaeble met with two FBI agents at the U.S. Embassy. The agents identified themselves only as “Charles” and “Loretta,” despite Mr. Knaeble’s repeated requests to see their identification and credentials. Charles and Loretta questioned Mr. Knaeble for six hours about his life before and after converting to Islam. Mr. Knaeble asked them when he would be permitted to return to the United States. The agents told Mr. Knaeble to be patient and said that they were doing their job. Despite his repeated questions, neither agent told Mr. Knaeble why he had been placed on the No Fly List or why they were questioning him.
84. Over the course of the following four weeks, Mr. Knaeble lived in hotels in Bogota and spoke regularly with FBI agents and U.S. Embassy officials in an effort to learn why he was not permitted to board a flight for the United States. Mr. Knaeble met with Charles and Loretta at least ten times. He hoped that by cooperating with FBI and embassy officials, he would secure permission to fly.
85. On March 26, 2010, Mr. Knaeble completed a DHS TRIP form online. He was assigned Redress Control Number 2093292.
86. Due to the exorbitant cost of living in Bogota, Mr. Knaeble moved to Santa Marta, which is located on the coast of Colombia, to live with relatives while trying to sort out a way to return to the United States.
87. Sometime in April 2010, Mr. Knaeble received a call from Rodney Sanchez of the FBI. Agent Sanchez indicated that he was a member of the Dallas, Texas FBI office and that he wanted to question Mr. Knaeble. Mr. Knaeble met with Agent Sanchez approximately five times.
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88. On April 13, 2010, Mr. Knaeble received a letter from ITT Systems indicating that because he had not taken the required physical exam in Killeen as planned, the firm had withdrawn the offer it made to Mr. Knaeble for a position in Qatar.
89. On or around April 21, 2010, Scott Renner returned Mr. Knaeble’s passport to him. Mr. Knaeble had been without a passport since March 15, 2010, the date on which Mr. Renner seized his passport.
90. On April 22, 2010, Mr. Knaeble told Agent Sanchez that he was being represented by an attorney at the Council on American-Islamic Relations. He asked the agent to call his attorney to discuss his situation and any further questions the FBI wanted to ask him. Agent Sanchez stated that he had been trying to help Mr. Knaeble return to the United States, but that since Mr. Knaeble had retained an attorney, he was no longer going to work on getting him a flight home. Agent Sanchez also stated that because Mr. Knaeble retained an attorney, Mr Knaeble was “closing all doors in the investigation.”
91. Mr. Knaeble remained desperate to return to the United States. On May 11, 2010, he purchased a ticket to fly from Santa Marta to Nuevo Laredo, Mexico, with stops in Bogota and Mexico City. He hoped to enter the United States over land by crossing the border between Nuevo Laredo and Laredo, Texas.
92. On May 12, 2010, Mr. Knaeble flew from Santa Marta to Bogota without incident, and from Bogota to Mexico City. When Mr. Knaeble landed in Mexico City, however, Mexican government agents were waiting for him at the gate of the plane. The agents questioned him for more than three hours about Islam, his activities in Yemen, and various Islamic groups to which Mr. Knaeble does not belong. One agent asked Mr. Knaeble what he was doing in Mexico. Mr. Knaeble explained that he was traveling to Nuevo Laredo where he
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would meet his father and travel to the United States. The agent responded that Mr. Knaeble would not be doing any more traveling in Mexico and that the only trip he would take would be back to Colombia. The authorities refused to allow Mr. Knaeble to board a flight from Mexico City to Nuevo Laredo or to travel by bus or any other means to the U.S.-Mexico border. The agents detained Mr. Knaeble for fifteen hours.
93. At around 3:00 P.M. the following day, the agents placed Mr. Knaeble on a flight back to Bogota. Mr. Knaeble was able to secure permission to stay in Colombia for two months, until July 13, 2010.
94. Due to the high cost of living in Bogota, Mr. Knaeble returned to live with family members in Santa Marta.
95. On June 26, 2010, Mr. Knaeble left Santa Marta for Venezuela to apply for an extension of his authorization to stay in Colombia with a Colombian consulate in that country because his authorization was to expire in several weeks. On June 29, 2010, the Colombian consulate in Maracaibo, Venezuela granted Mr. Knaeble authorization to remain in Colombia until June 29, 2012. Mr. Knaeble returned to Santa Marta to live with family members.
96. Mr. Knaeble fears that his departure to a foreign country to attempt to travel to the United States will subject him to arrest, detention, interrogation, and search, as was the case when he flew from Colombia to Mexico on May 12, 2010.
97. Since he was denied boarding on March 14, 2010, Mr. Knaeble has been unauthorized to work in Colombia and unable to secure paid employment.
98. Mr. Knaeble presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List.
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99. To this day, Mr. Knaeble cannot return home to the United States. He has been denied the ability to board a commercial flight from Bogota to the United States. He has been told by FBI agents that he is not permitted to travel on any commercial flight to the United States. Mexican authorities have prohibited him from entering Mexico and traveling to the United States by land. Mr. Knaeble is seeking a means to travel to the United States by boat, but the earliest practical opportunity to do so is to travel by cargo ship from Bogota to Florida in October 2010. He fears that the Defendants will prevent him from returning to the United States before his authorization to remain in Colombia expires on June 29, 2012. Because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace, Mr. Knaeble lost a job with ITT Systems and is currently prevented from returning to his home country to secure other employment and to visit his family.
Faisal Nabin Kashem 100. Plaintiff Faisal Nabin Kashem is a twenty-two year-old citizen of the United States and a resident of Connecticut. Mr. Kashem and his family moved to Connecticut when he was in middle school. He graduated from the University of Connecticut in 2005 with an undergraduate degree in accounting and worked for one year for Accenture, a consulting firm based in Hartford, Connecticut. 101. In January 2010, Mr. Kashem enrolled in a fully-funded two-year Arabic language certificate program at the Islamic University of Al-Madinah Al-Munawwarah in Medina, Saudi Arabia. He planned to complete the program and subsequently to enroll in a fouryear Islamic Studies degree program at the university. 102. On or around January 7, 2010, Mr. Kashem flew from New York’s John F. Kennedy International Airport to Medina, with a change of planes at King Abdulaziz
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International Airport near Jeddah. He flew without incident, arrived in Medina, and commenced his studies.
103. Mr. Kashem planned to return home to Connecticut for his two-month summer vacation, which was to take place from June to August 2010.
104. On June 23, 2010, Mr. Kashem flew without incident from Medina to King Abdulaziz International Airport. At around 11:00 P.M., Mr. Kashem attempted to check in for Saudi Arabian Airlines Flight 21 to John F. Kennedy International Airport, which was scheduled to depart at 1:55 AM the following morning. A Saudi Arabian Airlines employee scanned his passport. The employee told Mr. Kashem that he was on the “No Fly List” and that the United States had barred him from flying.
105. Mr. Kashem asked the Saudi Arabian Airlines employee if he could talk to anyone at the airport for help. The employee stated that Mr. Kashem would have to be cleared by the United States in order to board any flights to the United States. He told Mr. Kashem to speak to an agent at the ticketing counter to recover the value of his ticket. Mr. Kashem canceled his ticket to fly on Saudi Arabian Airlines before it departed so as not to lose the value of the ticket.
106. Mr. Kashem called the emergency number for the U.S. Consulate in Jeddah. The duty officer told him that she could not assist him. She provided Mr. Kashem with the phone number for the U.S. Embassy in Riyadh. Mr. Kashem was not able to reach a duty officer in Riyadh.
107. Mr. Kashem secured accommodation at a friend’s home in Jeddah for several nights so that he could stay in the city while seeking to determine why he could not fly. Mr. Kashem knew that he would need to spend several days in Jeddah because he was denied
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boarding in the early morning hours on a Thursday and offices in Jeddah are closed on Thursday and Friday for the weekend in Saudi Arabia.
108. On Friday morning, June 25, 2010, Mr. Kashem received a telephone call from Elias Mustafa Mohamed, a fellow student in the Arabic language certificate program at the Islamic University of Al-Madinah Al-Munawwarah. Mr. Mohamed informed Mr. Kashem that he, too, had been denied boarding on a flight and was told that he was on the No Fly List.
109. Mr. Kashem and Mr. Mohamed went to a store. There, Mr. Kashem photocopied and scanned his identification papers and completed a DHS Trip application online. Mr. Kashem was assigned Redress Control Number 2103133.
110. The following morning, on June 26, 2010, Mr. Kashem and Mr. Mohamed went to the U.S. Consulate in Jeddah, where they met with two U.S. government officials. One official introduced himself as Chris O’Brien and stated that he was a “point of contact” for the “U.S. Consulate Department of State.” Another individual introduced himself as Stephen Sekellick and stated that he worked in security at the consulate. The officials asked Mr. Kashem about his living situation in Saudi Arabia, his studies, and the amount of the stipend he received from the Islamic University. The officials told him that they were collecting information about him to give to a “case manager.” Mr. Mohamed was also questioned by Mr. O’Brien and Mr. Sekellick. Afterwards, Mr. Kashem and Mr. Mohamed returned by cab to their dormitories in Medina.
111. On July 1, 2010, Mr. Kashem received a call from Chris O’Brien, who asked him and Mr. Mohamed to come to the U.S. consulate in Jeddah on July 6, 2010 for an interview with a “case manager” from Riyadh.
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112. On July 6, 2010, Mr. Kashem and Mr. Mohamed made the four-hour trip from Medina to Jeddah and met Mr. O’Brien at the U.S. Consulate. While Mr. Mohamed waited in the lobby, Mr. O’Brien escorted Mr. Kashem to separate room and told him: “FBI agents from Connecticut are here to see you.” Mr. Kashem was surprised, because he had been told that he would be meeting with a “case manager.”
113. The FBI agents from Connecticut introduced themselves as Tim Bonarski and Andy Klopfer. Mr. Kashem requested to call his lawyer from the Council on AmericanIslamic Relations, so that she could represent him during the interview. The agents called Mr. Kashem’s attorney and permitted her to stay on speaker phone while they questioned Mr. Kashem for approximately three hours.
114. The agents asked Mr. Kashem, among other things, why he wore traditional Saudi clothing, whether he socialized with Saudis while studying in the country, how he felt as an American in Saudi Arabia, whether he had heard of a Bangladeshi student at the Islamic University of Al-Madinah Al-Munawwarah who had been arrested on terrorism charges, whether he knew any Iraqi or Afghani students at the school, the amount of his university stipend, whether he had brought money with him to Saudi Arabia, and how much money he had in his bank account at the time. Mr. Kashem answered their questions to the best of his ability. He told them that he had not heard of the Bangladeshi student they mentioned. The agents asked Mr. Kashem if he had ever provided financial support to Al-Qaeda, Hezbollah, Hamas, or other such organizations. Mr. Kashem responded that he had never made any such contributions and understood that doing so was against the law.
115. The agents told Mr. Kashem that he was not banned from entering the United States, but would not be permitted to fly. One agent suggested that Mr. Kashem fly to
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Canada and drive across the border to the United States. Mr. Kashem asked whether he would be barred at the border. The agents stated that they could not guarantee that he would not be barred.
116. Mr. Kashem presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List.
117. To this day, Mr. Kashem cannot return home to the United States. He has been denied the ability to board a commercial flight from Saudi Arabia to the United States. He has been told by FBI agents that he is not permitted to travel on any commercial flight to the United States. Mr. Kashem is seeking a means to travel to the United States by boat, but he cannot find a way to do so that is affordable and will permit him to return to Medina in time to begin the fall 2010 semester at his school. Because Defendants have barred Mr. Kashem from boarding commercial flights to or from the United States or over U.S. airspace, Mr. Kashem is unable to return home or to visit his family in the United States during his school vacations and has missed the weddings of two close friends.
Elias Mustafa Mohamed 118. Plaintiff Elias Mustafa Mohamed is a twenty year-old citizen of the United States and a resident of Seattle, Washington, where he has lived with his family since the age of six. Mr. Mohamed’s parents, step-father, and seven siblings are all U.S. citizens and live in the United States. 119. In September 2008, Mr. Mohamed applied for admission to the two-year Arabic language certificate program at the Islamic University of Al-Madinah Al-Munawwarah in Medina, Saudi Arabia. He was admitted and planned to begin his studies in January 2010.
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120. During the first week of January 2010, Mr. Mohamed flew on commercial flights without incident from Washington, D.C. to Medina, with a change of aircraft in King Abdulaziz Airport near Jeddah, to begin his studies at the Islamic University of Al-Madinah AlMunawwarah. He planned to return home to Seattle for his summer vacation on June 25, 2010.
121. On June 25, 2010, Mr. Mohamed and five of his classmates flew from Medina to King Abdulaziz International Airport without incident. At the Saudi Arabian Airlines check-in area, a classmate with the same first name as Mr. Mohamed stood in line ahead of him. When he presented his passport to the airline employee, he was told that he could not fly. When Mr. Mohamed presented his passport to the airline employee, he was also told that he could not fly. Mr. Mohamed’s passport and the passport of his classmate with the same name were given to a Saudi Arabian Airlines supervisor. The supervisor indicated that only Mr. Mohamed was not permitted to fly.
122. Mr. Mohamed canceled his flight so that he would not lose the value of the ticket.
123. A classmate told Mr. Mohamed that another classmate, Faisal Kashem, had also been denied boarding on a Saudi Arabian Airlines flight. Mr. Mohamed called Mr. Kashem and explained his situation.
124. Mr. Kashem and Mr. Mohamed went to a store. There, Mr. Mohamed photocopied and scanned his identification papers and completed a DHS Trip application online. Mr. Mohamed was assigned Redress Control Number 2103288.
125. The following morning, on June 26, 2010, Mr. Kashem and Mr. Mohamed went to the U.S. Consulate in Jeddah, where they met with Chris O’Brien and Stephen Sekellick. The officials first separately questioned Mr. Kashem for approximately half an hour, while Mr.
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Mohamed waited in the lobby. The officials then separately questioned Mr. Mohamed. They asked him where he had traveled prior to his arrival in Saudi Arabia. When Mr. Mohamed explained that he had traveled to Cairo and Saudi Arabia during the summer of 2008, the officials asked him why he had made this trip and how and why he came to study in Saudi Arabia. Mr. Mohamed explained that he had traveled to Egypt in 2008 for tourism, that he had then traveled to Saudi Arabia to complete umrah (Islamic pilgrimage), and that he applied to the Islamic University of Al-Madinah Al-Munawwarah at that time because he hoped to work as a professor. The officials also asked Mr. Mohamed, “Why do you think you’re on the No Fly List?” Mr. Mohamed responded that he had no idea. Mr. O’Brien took Mr. Kashem’s telephone number and said that he would follow-up in a week. Mr. Mohamed and Mr. Kashem returned to their dormitories in Medina in a cab.
126. On July 6, 2010, Mr. Mohamed made the four-hour trip with Mr. Kashem from Medina to the U.S. Consulate in Jeddah. They were met by Mr. O’Brien, who first escorted Mr. Kashem to a separate room while Mr. Mohamed waited in the lobby. Mr. O’Brien returned to the lobby several minutes later and told Mr. Mohamed that two FBI agents had come from Seattle to speak with him. Mr. O’Brien escorted Mr. Mohamed to a room, where two agents were waiting for him. They introduced themselves as Agent Frederick Gutt and Agent Albert Kelly of the Seattle FBI.
127. Mr. Mohamed asked for permission to call an advocate at the Council on American-Islamic Relations. The agents permitted him to make the call. Mr. Mohamed’s advocate listened on speakerphone as the agents questioned Mr. Mohamed.
128. Agent Gutt led the questioning of Mr. Mohamed. He asked Mr. Mohamed about a variety of subjects, including the purpose of and details about his 2008 trip to Egypt, why
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he was studying at the Islamic University of Al-Madinah Al-Munawwarah, and whether he had ever traveled to Somalia and Yemen. The agents also showed Mr. Mohamed photos of two young adult men in Seattle and asked him whether he knew them, had given them money to travel, or had provided them any other support for their travel to Somalia. Mr. Mohamed responded that he did not know either of the two individuals, although he had seen one of them at a mosque in Seattle and had worked at Taco Bell with the brother of the other individual. Mr. Mohamed told the agents he had never given either of them money or any other type of support. The agents confirmed that Mr. Mohamed was on the No Fly List.
129. Mr. Mohamed presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List.
130. To this day, Mr. Mohamed cannot return home to the United States. He has been denied the ability to board a commercial flight from Saudi Arabia to the United States. He has been told by FBI agents that he is not permitted to travel on any commercial flight to the United States. Mr. Mohamed is seeking a means to travel to the United States by boat, but he cannot find a way to do so that is affordable and will permit him to return to Medina in time to begin the fall 2010 semester at his school. Because Defendants have barred Mr. Mohamed from boarding commercial flights to or from the United States or over U.S. airspace, Mr. Mohamed is unable to return home or to visit his family in the United States during his school vacations.
Steven William Washburn 131. Plaintiff Steven William Washburn is a U.S. citizen and veteran of the U.S Air Force. In August 2008, Mr. Washburn and his wife decided to move to Riyadh, Saudi Arabia so that he could work for a technology company. After one and a half years in Saudi
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Arabia, the couple decided that life in Saudi Arabia did not suit them and that they wanted to move back to the United States.
132. In preparation for their move back to the United States, in January 2010, Mr. Washburn and his wife sold their home and all of their possessions and closed their bank accounts. The proceeds from these sales and their savings constituted their entire life savings. Mr. Washburn and his wife decided to take these life savings with them to the United States in cash.
133. Mr. Washburn and his wife purchased airline tickets to travel from Riyadh to Las Cruces, New Mexico, where his parents live. They planned to spend a one-week layover in Ireland during this trip so that they could visit Mr. Washburn’s step-daughter, who was pregnant at the time.
134. The Washburns traveled from Riyadh to Dublin without incident. The couple then sought to continue their journey to the United States on February 5, 2010. That day, Mr. Washburn attempted to board Aer Lingus Flight 133 at Shannon Airport Ireland bound for Boston. At the check-in counter, an airline employee denied him a boarding pass. When Mr. Washburn asked why the boarding pass was denied, the employee responded that Mr. Washburn was on the No Fly List.
135. Mr. Washburn contacted the U.S. Embassy in Dublin to ask why he was denied boarding on Aer Lingus Airlines Flight 133. An embassy official replied that the U.S. Embassy did not know why someone would be on the No Fly List and did not have access to such information. Mr. Washburn explained that he and his wife were moving back to the United States from Saudi Arabia. He also explained that they could not return to Riyadh because they had sold their home there and because they no longer had valid visas to remain in Saudi Arabia.
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Embassy officials advised Mr. Washburn to fly to Canada or Mexico and to enter the United States by driving over land across the border.
136. Mr. Washburn was eager to return to the United States to re-establish a life there with his wife. He also knew that his visa to stay in Ireland would run out soon.
137. Mr. Washburn purchased a new set of airline tickets to travel from Dublin to Ciudad Juarez, Mexico, with changes of aircraft in London and Mexico City. He planned to enter the United States by walking over a bridge located at the border between Ciudad Juarez and El Paso, Texas, as officials at the U.S. Embassy in Dublin had advised.
138. On February 12, 2010, Mr. Washburn flew from Dublin to London’s Heathrow International Airport without incident on BMI Flight 120. He was permitted to board British Airways Flight 243 from London to Mexico City. The plane took off without incident. Approximately three and a half hours later, however, the aircraft turned around and flew back to Heathrow International Airport. Airline employees provided no explanation for the decision.
139. Upon information and belief, British Airways Flight 243 returned to London because, after Mr. Washburn had boarded the flight, federal government officials instructed airline officials not to fly over U.S. airspace with Mr. Washburn on board due to his placement on the No Fly List.
140. When British Airways Flight 243 landed at Heathrow, airport security and New Scotland Yard officials met Mr. Washburn at the gate. These officials escorted Mr. Washburn to a room where they detained and interrogated him for more than nine hours. Airport security and New Scotland Yard officials also photographed and fingerprinted Mr. Washburn and subjected him to a DNA test. They seized the life savings that Mr. Washburn carried with
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him. New Scotland Yard officials subsequently escorted Mr. Washburn to another aircraft, which took him back to Ireland.
141. Several days later, Mr. Washburn’s visa to stay in Ireland expired. Irish authorities renewed Mr. Washburn’s visa for 30 days so that he could legally remain in that country while determining how to return to the United States.
142. Desperate to get his name off the No Fly List, Mr. Washburn telephoned the FBI in New Mexico to ask for help. FBI officials told him that they wanted to speak with him. Mr. Washburn agreed to meet with FBI officials at the U.S. embassy in Dublin. Mr. Washburn was subsequently interrogated three different times by FBI agents and voluntarily took a polygraph test. FBI agents told him that he had passed the polygraph test.
143. One FBI agent told Mr. Washburn that he had recommended that Mr. Washburn be given a one-time waiver to fly back to the United States, but that FBI Headquarters had not yet made a decision regarding the recommendation.
144. On March 13, 2010, Irish immigration authorities renewed Mr. Washburn’s visa for 30 days and indicated that no further renewals would be granted.
145. On April 27, 2010, Mr. Washburn completed a DHS TRIP form online. He was assigned Redress Control Number 2096551.
146. Mr. Washburn researched whether he could travel by boat from Ireland to the United States. He could not locate a trans-Atlantic ship traveling from Europe to the United States until September. Mr. Washburn booked a new series of flights from Dublin to Ciudad Juarez, Mexico, with stops in Frankfurt, Germany; São Paulo, Brazil; Lima, Peru; and Mexico City. He hoped to enter the United States over land by crossing the border between Ciudad Juarez and El Paso, Texas.
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147. Mr. Washburn flew without incident from Dublin to Frankfurt, from Frankfurt to São Paulo, São Paulo to Lima, and from Lima to Mexico City.
148. Mr. Washburn arrived in Mexico City International Airport at around 6:45 P.M. on May 21, 2010. At customs, Mr. Washburn was escorted to a separate room where he was detained and questioned by Mexican Federal Protection officers until 11:30 P.M. Mr. Washburn missed his connecting flight to Ciudad Juarez, which was scheduled to depart at 8:25 P.M.
149. At around 11:30 P.M., officers escorted Mr. Washburn to another room where he was detained overnight and not permitted to eat or drink anything except water.
150. At around 8:00 A.M. the next morning, Mexican Federal Protection officers escorted Mr. Washburn to an aircraft that transported him to Ciudad Juarez.
151. Mr. Washburn arrived at the Ciudad Juarez airport at around 11:00 A.M. and was met by three Mexican Federal Protection officers who took him to an office for questioning. The officers then took Mr. Washburn to a bridge on the U.S.-Mexico border and handed him off to U.S. Customs and Border Protection officers who were waiting for Mr. Washburn.
152. CBP officers escorted Mr. Washburn through a check point and took him to a facility where he was detained, handcuffed to a chair for several hours, and questioned for at least one hour. Officers searched Mr. Washburn’s belongings and photographed and fingerprinted him.
153. At around 7:00 P.M., CBP officers released Mr. Washburn. 154. Mr. Washburn presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List.
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155. Because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace, Mr. Washburn cannot visit is wife, who is a Spanish citizen and remains in Ireland because she currently lacks a visa for travel to the United States, or his step-daughter and her family who live in Dublin.
Samir Mohamed Ahmed Mohamed 156. Plaintiff Samir Mohamed Ahmed Mohamed moved to the United States from Yemen as a child and became a naturalized U.S. citizen in 1999. He lives in Lindsay, California, where he works in a clothing store and resides in housing provided by his employer. Mr. Mohamed’s parents are both U.S. citizens who live in Buffalo, New York. He has eleven siblings, all of whom are U.S. citizens who live in the United States. 157. Since he moved to the United States as a child, Mr. Mohamed has traveled to Yemen three times to visit family. Mr. Mohamed most recently traveled from Lindsay to Yemen in September 2009 to visit his wife and two children who live in Almasser, a city in southern Yemen. In April 2010, after spending several months with them, Mr. Mohamed booked a ticket on Saudi Arabian Airlines to return to the United States. He sought to fly from Sana’a to New York with a change of planes at King Abdulaziz International Airport near Jeddah, Saudi Arabia so that he could visit his parents and other relatives in New York for two weeks before flying to Fresno, California. 158. On May 3, 2010, Mr. Mohamed flew on Saudi Arabian Airlines to King Abdulaziz International Airport without incident. At the airport, he went to board Saudi Arabian Airlines Flight 25 to John F. Kennedy International Airport. Mr. Mohamed proceeded through immigration with other passengers seeking to transfer to international flights. Saudi immigration officials took Mr. Mohamed’s passport and asked him to wait. After some time, immigration
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officials escorted Mr. Mohamed through the airport and took him downstairs to a room. An immigration official told him that the Saudi authorities received a message from U.S. authorities indicating that he was “not allowed on United States land.” The official told Mr. Mohamed that he would not be permitted to fly to the United States and that the Saudi government would send him back to Yemen on a plane in two days, unless he purchased a ticket to return on an earlier flight.
159. It was clear to Mr. Mohamed that he could not stay in Saudi Arabia because he did not have a visa to remain in that country. It was also clear to him that he would not be permitted to fly as planned on Saudi Arabian Airlines Flight 25 to New York. Mr. Mohamed purchased a ticket to fly from King Abdulaziz International Airport to Sana’a on May 4, the following day.
160. Mr. Mohamed missed his flight to Sana’a the following day. He called the emergency number for the U.S. Embassy in Jeddah and was transferred to a consular official. Mr. Mohamed explained to the official that he was a U.S. citizen without a visa to stay in Saudi Arabia and that he had been stuck in Jeddah for twenty-three hours because he was denied boarding on a Saudi Arabian Airlines Flight from King Abdulaziz International Airport to New York the previous day. The consular official told Mr. Mohamed that the U.S. Embassy did not know why he was not permitted to fly and asked Mr. Mohamed if he knew why this was the case. Mr. Mohamed replied that he had no idea why he was denied boarding the previous day. He asked the official if he was on a government watch list that denied him the ability to fly. The official responded that he did not know and that because Mr. Mohamed did not have a valid visa for Saudi Arabia, he was unable to push Saudi authorities to permit Mr. Mohamed to fly to the United States.
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161. During the course of May 4, Mr. Mohamed called the U.S. Embassy several times and spoke to the same consular official. The official advised Mr. Mohamed to return to Yemen on the next available flight, which was scheduled to leave the following day. The official also told Mr. Mohamed that he would send a message to the U.S. Embassy in Yemen so that Mr. Mohamed would not have a problem entering Yemen.
162. On Wednesday, May 5, 2010, Mr. Mohamed flew to Sana’a without incident using the ticket for the May 4 flight that he had missed.
163. After his arrival, he immediately went to the U.S. Embassy in Sana’a. There, Mr. Mohamed spoke to an official who made several phone calls to inquire on his behalf. The official told him to return the following Saturday.
164. On Saturday, May 8, 2010, Mr. Mohamed returned to the U.S. Embassy in Sana’a. He was interviewed by two government officials, one of whom introduced herself as “Michelle.” Upon information and belief, the two government officials were FBI agents. At the end of the interview, the officials told Mr. Mohamed that they would call him in one week to let him know the outcome of the interview.
165. Mr. Mohamed never heard from the FBI agents. Over the course of the next few weeks, he went to the U.S. Embassy in Sana’a several times to see if he would be permitted to fly.
166. After about four weeks, Mr. Mohamed called the U.S. Embassy and reached one of the FBI agents who had interviewed him. The agent stated that he would call Mr. Mohamed back in one hour. One hour later, the agent called Mr. Mohamed and told him that he would not be permitted to fly on commercial airlines unless he provided the reason why he was placed on the government’s No Fly List. Mr. Mohamed stated that he knew of no reason why he
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would be placed on the list and asked the official why his name appeared on the list. The agent stated that he could not tell Mr. Mohamed anything. Mr. Mohamed asked the agent what he should do to get home to the United States. The agent stated that he could not do anything else for him and could not advise him. He suggested that Mr. Mohamed go to the U.S. Embassy and speak with a counselor.
167. On or around June 8, 2010, Mr. Mohamed went to the U.S. Embassy in Sana’a to speak to a counselor. A U.S. Embassy employee told him that he was on a U.S. watch list and that he would not be permitted to board a commercial flight to the United States or over U.S. airspace.
168. On June 8, 2010, Mr. Mohamed submitted a completed DHS TRIP form. He was assigned Redress Control Number 2101514.
169. On or around June 17, 2010, Mr. Mohamed called one of the FBI agents who had questioned him on May 8, 2010 to see if there were any developments regarding his ability to fly. The agent told Mr. Mohamed that he was still on the No Fly List and that he did not know how long Mr. Mohamed would remain on the list. The agent stated that Mr. Mohamed could travel to the United States from Yemen by boat. He advised Mr. Mohamed to call him every week for any new information about his placement on the No Fly List.
170. Mr. Mohamed presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List.
171. To this day, Mr. Mohamed cannot return home to the United States. He has been denied the ability to travel by commercial airline from abroad to the United States. Mr. Mohamed has been told by a government official that he will not be permitted to travel on any commercial flight to the United States or over U.S. airspace. Mr. Mohamed cannot afford the
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cost of traveling from Yemen to the United States by boat and knows of no opportunity to make such a journey before October 2010. Because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace, Mr. Mohamed is unable to visit his relatives in the United States and to return to his job in a clothing store in California, and risks losing both his job and his employer-provided housing. He currently has no income and is borrowing money from others in order to support himself, his pregnant wife, and their two children.
Abdullatif Muthanna 172. Plaintiff Abdullatif Muthanna is a naturalized U.S. citizen and resident of Rochester, New York. Mr. Muthanna was born in Yemen and moved to the United States in 1996 to join his mother and step-father. 173. Mr. Muthanna works for a clothing store in Rochester to support his wife and four children, who live in southern Yemen several hours outside the city of Aden. He travels to southern Yemen every few years to spend time with his family. 174. Mr. Muthanna remains in the United States apart from his family in order to earn an income and to receive medical care for the serious medical conditions with which he has been diagnosed. Mr. Muthanna suffers from and receives treatment for digestive diseases and mental health conditions. His doctors, including his primary care physician, internist, and gastroenterologist, are all located in New York. 175. On June 18, 2009, Mr. Muthanna traveled from Rochester to southern Yemen without incident in order to visit his wife and children. He planned to return to the United Statesby traveling on Saudi Arabian Airlines from Aden to New York with a change of aircraft in King Abdulaziz International Airport near Jeddah, Saudia Arabia.
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176. On May 31, 2010, Mr. Muthanna traveled from Aden to King Abdulaziz International Airport without incident. He had a three-day transit visa to stay in Jeddah while waiting to board his flight from King Abdulaziz International Airport to New York, which was scheduled to depart on June 3, 2010.
177. On June 3, Mr. Muthanna went to King Abdulaziz International Airport to check in for Saudi Arabian Airlines Flight 0021 to New York. Mr. Muthanna presented his ticket receipt and identification to an airline employee at the check-in counter. The employee made a telephone call. Afterwards, he showed Mr. Muthanna his computer screen. The screen displayed Mr. Muthanna’s name and flight number and indicated that there was no seat for Mr. Muthanna on the Saudi Arabian Airlines flight to New York. Mr. Muthanna was confused and asked for an explanation. The airline employee told him: “You are not allowed to fly to New York. You cannot fly.”
178. The employee called officials from Saudi Arabian Immigration, who arrived at the check-in counter. An immigration official told Mr. Muthanna that he could not board his flight to New York and that he had to return to Yemen.
179. The official explained to Mr. Muthanna that because there was no flight scheduled to depart from King Abdulaziz International Airport for Yemen that day, he would have to stay in Jeddah and return the next morning.
180. Mr. Muthanna returned to King Abdulaziz International Airport on the morning of Friday, June 4, 2010. Mr. Muthanna purchased a new ticket to fly to Sana’a on Yemenia Airways. He went to the North Terminal of the airport to board his flight.
181. A Saudi immigration official asked Mr. Muthanna for his passport and saw that his three-day transit visa for Saudi Arabia had expired on June 3 and that his passport
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lacked a visa for Yemen. The official told Mr. Muthanna that he would not be permitted to go through immigration to board his flight to Yemen. Mr. Muthanna explained that he had overstayed his Saudi Arabian transit visa by only one day because he was unexpectedly prevented from boarding his Saudi Arabian Airlines flight from King Abdulaziz International Airport to New York on June 3, 2010. He also explained that he did not have a visa for Yemen because he was on his way home to New York.
182. Mr. Muthanna returned to the South Terminal of King Abdulaziz International Airport to attempt to board a Saudi Arabian Airlines flight bound for Yemen. Once again, a Saudi immigration official did not let him pass through immigration to board his flight to Yemen because his three-day transit visa had expired and his passport lacked a valid visa for Yemen.
183. The immigration official told Mr. Muthanna that he was not validly in Saudi Arabia and that he could be arrested and detained on that ground. He said that Mr. Muthanna should return to the United States. Mr. Muthanna explained that he was trying to do precisely that, but that he had been denied boarding on his flight home to New York the day before.
184. After some time, a supervisor arrived at Immigration. Mr. Muthanna explained his situation. The supervisor made a copy of Mr. Muthanna’s passport and issued a letter granting Mr. Muthanna “special permission” to overstay his transit visa. The supervisor instructed him to speak with the U.S. Embassy in Sana’a. By this time, Mr. Muthanna’s flight to Yemen had already departed. The supervisor told Mr. Muthanna that there was a Yemenia Airlines flight to Sana’a leaving that day. Mr. Muthanna spent another 200 riyals to purchase a ticket for this later flight.
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185. Mr. Muthanna finally flew on Yemenia Airlines to Sana’a. Because he arrived on a Friday and the U.S. Embassy was closed that day, he could not go to the U.S. Embassy to inquire about his situation.
186. The next morning, Mr. Muthanna went to the U.S. Embassy. He was instructed to speak with the Legal Attaché.
187. The Legal Attaché introduced himself as Vincent Lisi. Mr. Lisi questioned Mr. Muthanna for about half an hour. Mr. Muthanna asked him if he was placed on a U.S. government list. Mr. Lisi stated that Mr. Muthanna was not on a “black list,” but that he was on a government list reserved for people who were not permitted to fly. Mr. Lisi also stated that this list was reserved for people about whom the government needed information and that Mr. Muthanna would not be permitted to fly on commercial airplanes bound for the United States or over U.S. airspace. Mr. Muthanna asked if he could fly to Mexico or Canada and cross over land into the United States. The agent said that this would not be possible. He advised Mr. Muthanna to return to the United States by ship. Mr. Lisi told Mr. Muthanna that he would contact him in one week to let him know whether he could fly.
188. Mr. Muthanna called Mr. Lisi two days later to see if there was any information about his situation. Mr. Lisi instructed him to call back one week later.
189. Mr. Muthanna returned to the U.S. Embassy in Sana’a one week later. The Legal Attaché questioned him further about his time in Yemen. He again instructed Mr. Muthanna to call him back in one week for more information about his case.
190. One week later, Mr. Muthanna called Mr. Lisi. Again, Mr. Lisi questioned Mr. Muthanna. At the end of the conversation, Mr. Lisi again instructed Mr. Muthanna to call him back in one week.
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191. On June 18, 2010, Mr. Muthanna completed a DHS Traveler Inquiry Form. He was assigned Redress Control Number 2102791.
192. Mr. Muthanna presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List.
193. To this day, Mr. Muthanna cannot return home to the United States. He has been denied the ability to travel by commercial airline from abroad to the United States. Mr. Muthanna has been told by a U.S. official that he will not be permitted to travel on any commercial flight to the United States or over U.S. airspace. He has searched for a way to travel from Yemen to the United States by boat and has not found any possibility of doing so. Because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace, Mr. Muthanna is unable to return to his job or to seek the medical attention he needs from his providers in Rochester. He currently has no income and is borrowing money from people in order to support himself, his wife, and their children.
Nagib Ali Ghaleb 194. Plaintiff Nagib Ali Ghaleb is a naturalized U.S. citizen and San Francisco resident. He moved to the United States from Yemen in 1996. Mr. Ghaleb works in San Francisco as a janitor. 195. Mr. Ghaleb’s wife and four children, one of whom is a U.S. citizen, live in Yemen. Several years ago, he submitted visa applications for his wife and three of his children so that they could immigrate to the United States. Their visa petitions were approved, but there has been a long delay in processing their immigrant visa paperwork. 196. Mr. Ghaleb traveled to Yemen to visit his family and to meet with the U.S. consul there in hopes of finding out the reason for the delay in processing his wife’s and
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children’s visa applications. Mr. Ghaleb planned to travel to Yemen in August 2009 and to return to San Francisco in February 2010 so that he could resume his work.
197. On August 17, 2009, Mr. Ghaleb flew from San Francisco to Sana’a without incident.
198. On February 16, 2010, Mr. Ghaleb flew on Yemenia Airlines from Sana’a to Frankfurt without incident.
199. At Frankfurt Airport, Mr. Ghaleb went to the check-in counter for United Airlines to secure a boarding pass for his United Airlines flight to San Francisco. An airline employee took his passport and asked him to sit down and wait. Some time later, several United Airlines supervisors arrived at the check-in counter.
200. After some time, two U.S. officials wearing suits arrived at the United Airlines check-in counter. Upon information and belief, the officials were FBI agents. One FBI agent told Mr. Ghaleb that he would not be permitted to board his United Airlines flight to San Francisco. Mr. Ghaleb was confused and asked if this was really true. The FBI agents confirmed that it was. Mr. Ghaleb asked if he could fly to San Francisco on a different flight. One FBI agent stated: “You cannot go to America at all.” The U.S. officials left.
201. After some time, a German police officer arrived and escorted Mr. Ghaleb to a separate room for questioning. The police officer took Mr. Ghaleb’s passport and searched him and his luggage. Another German officer arrived and questioned Mr. Ghaleb again. After Mr. Ghaleb had been searched and questioned for approximately three hours, a German police officer told him that he was free to go. Mr. Ghaleb told the officers that he had nowhere to go because he did not have any money to purchase a new ticket to fly back to Yemen. He explained that he had spent all of his money to purchase his ticket to fly from Frankfurt to San Francisco.
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The German officers told Mr. Ghaleb that Germany had no problem with him and that he was free to take a cab to the U.S. Embassy and to seek assistance there.
202. Mr. Ghaleb called a friend who worked at a travel agency in Yemen for help. His friend helped him secure an electronic ticket to fly from Frankfurt to Sana’a. Mr. Ghaleb flew back to Yemen the same day.
203. After arriving in Sana’a, Mr. Ghaleb went directly to the U.S. Embassy. He explained his situation to an embassy official and asked to speak with a consular official. Two consular officials, one who spoke Arabic and one who did not, escorted Mr. Ghaleb to a room where they questioned him for three hours. Another consular official photocopied Mr. Ghaleb’s passport. He told Mr. Ghaleb that it would be impossible for him to enter the United States. Mr. Ghaleb was shocked and confused. The Arabic-speaking consular official told Mr. Ghaleb in Arabic that he would explain what the other official had said. He stated that Mr. Ghaleb would not be permitted to board flights to the United States and asked Mr. Ghaleb: “What did you do wrong? You must be a terrorist.” The Arabic-speaking consular official said jokingly: “You can take a car to the United States.”
204. Approximately two weeks later, Mr. Ghaleb was contacted by an official from the U.S. Embassy in Sana’a and asked to come to the embassy for further questioning.
205. Mr. Ghaleb went to the U.S. Embassy on or around March 1, 2010. He was questioned for around one and one half hours by two officials, one of whom was the Arabicspeaking consular official who had questioned Mr. Ghaleb previously. Upon information and belief, the other official was an FBI agent. The interrogators knew what mosques Mr. Ghaleb attended in San Francisco and Oakland and that he was a highly regarded soccer player. They were aware that Mr. Ghaleb knew many people and that many people in the Bay Area Yemeni
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community knew him. The interrogators said that they knew Mr. Ghaleb lived in San Francisco and had been trying for a long time to bring his family to the United States. The consular official said: “We know how much you love America and we can make it easy for you to go back.”
206. Mr. Ghaleb showed them a letter from his attorney, Kip Evan Steinberg, that introduced Mr. Steinberg as his attorney and a letter from Mr. Steinberg to Senator Dianne Feinstein seeking assistance with Mr. Ghaleb’s apparent placement on the No Fly List. The interrogators told Mr. Ghaleb that neither a lawyer nor Senator Feinstein could help him and that the only people who could help him were sitting in the room with him. They said it could take “years and years” for him to correct this problem “his way.”
207. The interrogators offered to help Mr. Ghaleb if he would work with them. They offered to arrange for him to fly back to the United States immediately if he would agree to tell them who the “bad guys” were in Yemen and in San Francisco. Mr. Ghaleb refused, stating that he was not political and did not know about such things. The interrogators insisted that Mr. Ghaleb did know and could provide the names of people from his mosque and his community. One official emphasized that it would be impossible for no one in the Bay Area Muslim community to have spoken badly about the United States. He encouraged Mr. Ghaleb to report such instances to them, whether they took place in the United States or Yemen.
208. Mr. Ghaleb told the interrogators that he was not interested in spying in the Yemeni community. He stated: “I could give you false information about innocent people and claim they are the bad guys and help myself out of this situation, but these people will be harmed. Is this what you want?” Mr. Ghaleb raised his American passport and said: “What does this mean? I have rights. I am an American.”
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209. The interrogators told Mr. Ghaleb that if he did not cooperate, they would call the Yemeni government and have him arrested and sent to jail, where he would spend the rest of his life and never see his family or his home in America again. They advised him to “think about it” and indicated that he could call Vincent Lisi at the U.S. Embassy if he wanted to get in touch.
210. On or around March 2, 2010, Mr. Ghaleb submitted a completed DHS TRIP form online. He was assigned Redress Control Number 2089829.
211. Mr. Ghaleb received a letter dated April 6, 2010 from Jim Kennedy of the DHS Traveler Redress Inquiry Program stating that DHS had received his Traveler Inquiry Forms and supporting materials submitted through the TRIP system. The letter stated: “In response to your request, we have conducted a review of any applicable records in consultation with other Federal agencies, as appropriate. Where it was determined that a correction to records was warranted, these records were modified to address any delay or denial of boarding that you may have experienced as a result of the watch list screening process.”
212. On May 3, 2010, Mr. Ghaleb again attempted to fly home to San Francisco. He flew without incident on Emirates Airlines from Sana’a to Dubai. In Dubai International Airport, Mr. Ghaleb was not permitted to board his Emirates Airlines flight to San Francisco. Dubai police told Mr. Ghaleb that he was on the No Fly List and detained him for several days. They berated him for attempting to fly when he knew that he was on the No Fly List and asked him why he had come to the United Arab Emirates. They then returned him to Yemen by plane.
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213. Mr. Ghaleb called the FBI. An FBI officer told Mr. Ghaleb that he would be taken off the No Fly List if he would agree to become an FBI informant in the California Yemeni community.
214. On June 30, 2010, Mr. Ghaleb filed the instant action against the Defendants for violation of his constitutional rights, seeking removal of his name from any government watch list that has prevented him from flying or, in the alternative, a hearing in which he can confront any evidence against him and contest his unlawful designation.
215. During the week of July 19, 2010, an FBI agent visited Mr. Ghaleb’s brother in Detroit and questioned him about Mr. Ghaleb. The agent told Mr. Ghaleb’s brother that Mr. Ghaleb would be permitted to fly. Mr. Ghaleb’s brother relayed this information to him.
216. Mr. Ghaleb called the U.S. Embassy in Sana’a. An embassy official confirmed that he would be permitted to fly and should purchase tickets to fly to the United States.
217. Mr. Ghaleb booked a flight from Sana’a to San Francisco via Frankfurt. He flew from Sana’a to Frankfurt, and from Frankfurt to San Francisco, without incident, and he arrived home on July 26, 2010. CBP officers questioned and searched Mr. Ghaleb after he landed in the airport in San Francisco. Mr. Ghaleb was permitted to enter the United States.
218. Mr. Ghaleb’s leave from his position as a janitor in San Francisco expired in February. The management of the building at which he worked has been transferred to another company. Mr. Ghaleb is not certain that his job will be available to him.
219. Mr. Ghaleb presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List.
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220. To this day, Mr. Ghaleb does not know whether he can fly commercial airlines to and from the United States or over U.S. airspace. The Defendants denied him boarding on two commercial flights bound for the United States from abroad. Mr. Ghaleb was not told why this occurred and was subsequently told by FBI agents that he would not be permitted to travel on any commercial flight to the United States. After the commencement of this litigation, Mr. Ghaleb was told by a U.S. government official that he was permitted to fly to the United States and successfully flew home. Mr. Ghaleb was not told, however, whether he had been granted a one-time waiver to fly home or whether his name had been removed from the No Fly List, permitting him to fly on commercial airlines to and from the United States or over U.S. airspace. Mr. Ghaleb fears that his name remains on the No Fly List and that Defendants will prohibit him from traveling by commercial air to Yemen to visit his wife and children.
Saleh A. Omar 221. Plaintiff Saleh A. Omar is a thirty-five year-old citizen of Yemen who has been a lawful permanent resident of the United States since March 19, 1996. He has lived and worked in Detroit for fourteen years. His father, three brothers, and uncle are all U.S. citizens. 222. Since becoming a lawful permanent resident of the United States, Mr. Omar has resided continuously in the United States with no extended absences. He meets the statutory definitions for a finding of “good moral character” and is eligible to apply for naturalization as a U.S. citizen. 223. Mr. Omar lives in Detroit and works in a mechanic shop to support his wife and three children, who live in Yemen. On December 7, 2009, Mr. Omar traveled to Yemen to visit his wife and children for a little over three months. He planned to return to his
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home and job in Detroit no later than March 9, 2010 by flying from Sana’a to Detroit on March 8, 2010, with stops in Jeddah and New York.
224. On March 8, 2010, Mr. Omar traveled on Saudi Arabian Airlines from Sana’a to King Abdulaziz International Airport near Jeddah without incident. At the airport, Mr. Omar presented his passport in order to board Saudi Arabian Airlines Flight 25 to John F. Kennedy International Airport in New York. A Saudi immigration official stopped Mr. Omar and told him that he could not go to New York because his name was in their computer. Mr. Omar asked why this was the case, but he received no response. The official returned Mr. Omar’s passport to him and his ticket to New York was canceled.
225. Mr. Omar stayed in Jeddah for approximately thirty hours and took the first available flight back to Yemen on Saudi Arabian Airlines.
226. After arriving in Sana’a, he asked a Saudi Arabian Airlines agent why he was prevented from flying to New York and was told that his name was in their computer. The agent told Mr. Omar to go to the U.S. Embassy in Sana’a for more information. Mr. Omar went directly to the U.S. Embassy.
227. At the U.S. Embassy, Mr. Omar asked to speak with someone who could tell him why he was prevented from traveling to the United States on his Saudi Arabian Airlines flight. Mr. Omar spoke with an official who introduced himself as Dennis Brady. Upon information and belief, Mr. Brady is an FBI agent. Mr. Brady questioned Mr. Omar. During the questioning, another U.S. embassy official entered the room and told Mr. Omar: “You can never go to America.” Mr. Omar was confused and concerned, and asked why. Mr. Brady and the U.S. Embassy official told Mr. Omar that his name is on the No Fly List, but did not provide any reason why. Mr. Omar explained that he had lost hundreds of dollars by not being able to use
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the ticket he had purchased to fly from Jeddah to New York. He asked the officials to show him the No Fly List. The embassy official again told him: “You cannot go to the United States of America. Never.” Several days later, Mr. Omar called the U.S. Embassy in Sana’a to see if they had any more information about his situation. The embassy officials with whom he spoke provided no information.
228. Over the course of the next few weeks, Mr. Omar went to the U.S. Embassy in Sana’a two more times to find out why was denied boarding on his U.S.-bound flight at King Abdulaziz International Airport and for information about why his name was on the No Fly List. On at least one of these occasions, Mr. Omar met with and was questioned by Legal Attaché Vincent Lisi. Mr. Omar asked Mr. Lisi for help in returning home to Detroit so that he could get back to his job. He also asked when he would be permitted to travel to the United States. Mr. Lisi told Mr. Omar that he could not help him and that he would not be permitted to travel to the United States. Mr. Omar asked why. Mr. Lisi did not reply.
229. On June 16, 2010, Mr. Omar submitted a completed DHS TRIP form. He was assigned Redress Control Number 2102388.
230. On June 30, 2010, Mr. Omar filed the instant action against the Defendants for violation of his constitutional and statutory rights, seeking removal of his name from any government watch list that has prevented him from flying or, in the alternative, a hearing in which he can confront any evidence against him and contest his unlawful designation.
231. On August 4, 2010, Mr. Omar called the U.S. Embassy in Sana’a. An embassy official told him to make air travel arrangements to fly home to Detroit.
232. Mr. Omar presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List.
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233. Although Mr. Omar is now attempting to arrange for commercial air travel to the United States, he does not know whether he will be permitted to fly to and from the United States or over U.S. airspace. He was denied the ability to travel by commercial airline from abroad to the United States and was subsequently told by U.S. officials that he would not be permitted to travel on any commercial flight to the United States. After the commencement of this litigation, Mr. Omar was told by a U.S. official that he should make arrangements to fly to the United States on a commercial airline. Mr. Omar was not told, however, whether he had been granted a one-time waiver to fly home or whether his name had been removed from the No Fly list, permitting him to fly on commercial airlines to and from the United States or over U.S. airspace.
234. Mr. Omar knows of no way to travel from Yemen to the United States by boat. If Mr. Omar is denied boarding on the flight to the United States that he is attempting to secure, he will be unable to return home and to resume working at his job in a mechanic shop. If Mr. Omar is permitted to fly from Yemen to the United States and Defendants subsequently deny him boarding on a commercial flight, Mr. Omar will be unable to return to Yemen, where his relatives, including his elderly and ill father, reside. Moreover, Mr. Omar fears that because he has been absent from the United States in excess of 180 days since, the government may seek to rescind his lawful permanent status, even though his absence from the United Stats since March 9, 2010 has been entirely involuntary and the result of the Defendants’ actions. Mr. Omar’s involuntary and extended absence may also jeopardize his right to naturalize as a U.S. citizen.
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Abdul Hakeim Thabet Ahmed 235. Abdul Hakeim Thabet Ahmed is a citizen of Yemen who has been a lawful permanent resident of the United States since 1990, when he first arrived in the United States. He is a resident of Rochester and works as a vendor, selling merchandise from his van. 236. Since becoming a lawful permanent resident of the United States, Mr. Ahmed has resided continuously in the United States with no extended absences. He meets the statutory definitions for a finding of “good moral character” and is eligible to apply for naturalization as a U.S. citizen. 237. Mr. Ahmed’s family, including his wife, children, and parents, reside in Yemen. As of the beginning of August 2009, Mr. Ahmed had not visited his family in Yemen for more than two years. Mr. Ahmed purchased a round-trip ticket to travel by Saudi Arabian Airlines from New York to Aden, Yemen with a change of aircraft and a three-day layover in Jeddah each way. According to this itinerary, Mr. Ahmed would arrive in Yemen on August 10, 2009, and return to the United States on February 1, 2010. 238. On or around August 6, 2009, Mr. Ahmed flew without incident from New York to King Abdulaziz International Airport. During his three-day layover in Jeddah, Mr. Ahmed completed an umrah, the pilgrimage to Mecca undertaken by Muslims. Mr. Ahmed flew to Aden without incident on August 10, 2009. 239. After visiting his family as planned, Mr. Ahmed began his return trip home to Rochester on February 1, 2010. He traveled without incident on Saudi Arabian Airlines from Aden to King Abdul Aziz International Airport . After spending his three-day layover in the city of Jeddah, Mr. Ahmed returned to King Abdul Aziz International Airport on February 4, 2010 to board his Saudi Arabian Airlines flight to New York.
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240. At the airport, Mr. Ahmed went to the Saudi Arabian Airlines check-in counter. An airline employee told him that he could not board his flight because his name was on a list of people who could not travel. Mr. Ahmed was confused. The airline employee would not answer any questions and told him to go to the United States consulate in Jeddah to deal with the problem.
241. Mr. Ahmed left the airport and went to the United States consulate in Jeddah. There he explained his situation to a consulate staff member. The staff member checked Mr. Ahmed’s documents and told Mr. Ahmed that the denial of boarding was not an immigration problem, but a security problem. Mr. Ahmed made copies of all of his documents and provided them to the consulate staff member. Mr. Ahmed was told to come back later.
242. Over the course of the next month and a half, Mr. Ahmed remained in Jeddah and traveled to the U.S. Consulate several times to determine why he had been denied boarding on his Saudi Arabian Airlines flight and to find a way to fly back to the United States. During his first few trips to the consulate, Mr. Ahmed was told to return later because the consular officer was traveling. Mr. Ahmed thereafter met with the consular officer four times. During the fourth meeting, the consular officer informed him that she could not assist him and that Mr. Ahmed would have to return to Yemen and follow up with the United States Embassy in Sana’a.
243. That day, Mr. Ahmed went to the airport. Upon inspecting his documents, Saudi immigration officials told him that he had overstayed his three-day transit visa and that he would have to leave the country immediately. A Saudi Arabian Airlines employee advised Mr. Ahmed to travel from Jeddah to Aden by bus and to seek reimbursement for his unused plane
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ticket from Jeddah to New York, rather than to exchange the unused ticket for a new plane ticket from Jeddah to Aden.
244. On or around March 13, 2010, Mr. Ahmed purchased a bus ticket from Jeddah to Aden for 200 Saudi riyals. He left the same day and reached Aden approximately twelve hours later.
245. On March 17, 2010, Mr. Ahmed traveled to the U.S. Embassy in Sana’a, where he was interviewed by a consular officer. The officer told Mr. Ahmed that he was on the No Fly List and that he could not provide any reasons for his placement on this list. The officer asked Mr. Ahmed whether he had traveled to Afghanistan or knew anyone who had done so. Mr. Ahmed responded that he had not, and that he did not know anyone who had. The officer also asked Mr. Ahmed questions about the mosque he attended in the United States, including the name of the mosque and of the mosque’s imam. Mr. Ahmed answered their questions, but could not provide much information because he did not know much other than the imam’s name. The officer told Mr. Ahmed that he would send an inquiry on his behalf and told Mr. Ahmed to return in two days to see if there was any response.
246. Mr. Ahmed returned two days later and met with the consular officer who informed him that he had no updates. The officer asked Mr. Ahmed to leave his phone number and e-mail address, and told him that the consulate would call him if there were any developments in his case.
247. The consular officer gave Mr. Ahmed a phone number to call and told him to check in every week. He was told that he should ask for “Dennis,” a U.S. official, for any follow ups.
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248. Mr. Ahmed has been unable to reach “Dennis” or to otherwise receive any information about his case by calling the phone number given to him by the consular officer. Several times, he has been unable to reach anyone at that number. Other times, a U.S. official has answered and told him that there is no new information about his case, that Dennis is unavailable, or that Mr. Ahmed would have to “wait” and that there were “many people before him,” presumably also inquiring about their inability to fly.
249. Since his return to Yemen on March 17, 2010, Mr. Ahmed has traveled from Aden to the U.S. Embassy in Sana’a two or three times a month to find out why he was denied boarding and when he will be permitted to fly home, a trip that takes fourteen hours round-trip and requires Mr. Ahmed to stay overnight in Sana’a. Usually, Mr. Ahmed is met by an embassy staff member who inspects his documents, tells him that there is still no news, and asks him to check in later.
250. Mr. Ahmed has been unable to work since being denied boarding on his Saudi Arabian Airlines flight. Mr. Ahmed lacked authorization to work in Jeddah. He has been unable to find paid employment since his return to Yemen on March 22, 2010. As a result, Mr. Ahmed has been forced to borrow money to support his family. He has also had to borrow money to pay for the cost of recent hospitalizations of his wife and daughter due to serious medical conditions. As a result, Mr. Ahmed has accumulated over $15,000 of debt.
251. On July 27, 2010, Mr. Ahmed submitted a DHS TRIP form. He was assigned Redress Control Number 2106577.
252. Mr. Ahmed presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List.
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253. To this day, Mr. Ahmed cannot return home to the United States. He has been denied the ability to travel by commercial airline from abroad to the United States. Mr. Ahmed has been told by a U.S. official that he is on the No Fly List and that he will not be permitted to travel on any commercial flight to the United States or over U.S. airspace. He knows of no way to travel from Yemen to the United States by boat and he cannot afford to attempt to fly to a third country and to risk detention or being turned back again. Because Defendants have barred him from boarding commercial flights to and from the United States and over U.S. airspace, Mr. Ahmed is unable to return to Rochester and to resume his work as a vendor as he had planned to do so, which has resulted in extreme financial hardship to him. Mr Ahmed fears that based on his absence from the United States in excess of 180 days since his departure from the United States on or around August 6, 2009, the government may seek to rescind his lawful permanent status, even though his absence has been entirely involuntary and the result of the Defendants’ actions. Mr. Ahmed’s involuntary and extended absence from the United States may also jeopardize his right to naturalize as a U.S. citizen.
Mohamed Sheikh Abdirahman Kariye 254. Plaintiff Mohamed Sheikh Abdirahman Kariye is a U.S. citizen and resident of Portland, Oregon. He is also the imam, or religious leader, of Masjid As-Saber, which is also known as The Islamic Center of Portland. This position requires Mr. Kariye to travel by commercial air to at least several speaking engagements and conferences each year. 255. In early 2010, Mr. Kariye sought to visit his daughter, who is a high school student in Dubai. He booked tickets to travel by plane from Portland to Dubai, with a change of aircraft in Amsterdam.
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256. On March 8, 2010, Mr. Kariye went to Portland International Airport to check in for his Delta Airlines Flight to Amsterdam. He gave his passport and airline ticket receipts to the Delta employee at the check-in counter. Several minutes later, the airline employee asked Mr. Kariye to wait. After some time, Mr. Kariye asked the Delta Airlines employees at the check-in counter what was taking so long. They did not answer his question.
257. After at least two hours had passed, a police officer, detective, and U.S. Marshal approached Mr. Kariye at the counter. Two other government officials also approached Mr. Kariye, but stood a little farther away from him. Upon information and belief, those two officials were agents of the FBI.
258. A Delta Airlines employee told Mr. Kariye: “You cannot fly. You cannot board the plane.” Mr. Kariye expressed confusion and insisted to know why. The employee replied: “You are on a government list.” Mr. Kariye asked why he had been put on the list. He explained that he had flown to Dubai from Portland as recently as July 2009 and from Portland to Chicago and back as recently as October 2009. The Delta Airlines employee said that she did not know and could not help him further.
259. The police officer approached Mr. Kariye and stated that Delta Airlines did not want him near the check-in counter. Mr. Kariye asked the officer and agents why he was not permitted to fly and reiterated that he had flown as recently as July 2009 and October 2009. The officer and agents said that they could not explain to him why he could not fly and that he had to leave the area.
260. On May 3, 2010, Mr. Kariye submitted a completed DHS TRIP form. He was assigned Redress Control Number 2097225.
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261. Several years earlier, on September 10, 2002, Mr. Kariye was arrested on a sealed indictment in Portland International Airport by an FBI-led Joint Terrorism Task Force while attempting to board a plane bound for Dubai with his brother and four children. At the time, Mr. Kariye was traveling to Dubai to assume a teaching position. A senior customs inspector alleged that there were trace amounts of TNT in two of the bags carried by Mr. Kariye’s brother. Although no bombs were found in the luggage, Mr. Kariye was subsequently held without bail. After five weeks of detention, Mr. Kariye was released when lab tests showed there were no traces of any explosives. He was never charged with any explosives-related violations. Salim Jiwa and Mike Gudgell, Muslim Cleric Released in Portland, ABC News, Oct. 11, 2002, at http://abcnews.go.com/US/story?id=91141&page=1.
262. Mr. Kariye presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List.
263. To this day, Mr. Kariye cannot board commercial airlines to or from the United States or over U.S. airspace. Because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace, he cannot visit his daughter in Dubai or his family in Somalia, cannot escort his elderly mother from Portland to Mecca, Saudi Arabia in November 2010 for the Hajj pilgrimage—a requirement of the Muslim faith—as planned, and has been forced to restrict his work-related travel.
Ibraheim (Abe) Mashal 264. Plaintiff Ibraheim (Abe) Mashal is a thirty-year old U.S. citizen and veteran of the U.S. Marine Corps. He was born and raised in the United States and lives in St. Charles, Illinois with his wife and three children. Since his honorable discharge from the U.S. Marine Corps in 2003, Mr. Mashal has worked as a traveling dog trainer.
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265. Mr. Mashal has provided dog-training services to clients in twenty-three U.S. states. He often receives new clients through referrals from satisfied customers.
266. During the week of April 12, 2010, Mr. Mashal received a call from a woman in Spokane, Washington who sought a dog trainer. She had located his contact information and business description online. The woman hired Mr. Mashal to train her dog in her home. She agreed to pay the fare for his round-trip air travel from Chicago to Spokane, the cost of his hotel accommodations in Spokane, and his dog-training services fee. Mr. Mashal secured a ticket on Southwest Airlines to travel from Chicago to Spokane via Salt Lake City.
267. On the evening of April 19, 2010, Mr. Mashal tried to check in online for his Southwest Airlines flights, which were scheduled to depart the following day. He was unable to do so. Mr. Mashal called Southwest Airlines. An airline representative instructed him to proceed directly to the Southwest Airlines ticketing counter to check in for his flights the following morning.
268. On the morning of April 20, 2010, Mr. Mashal went to Chicago’s Midway Airport to report for his 9:00 A.M. flight to Salt Lake City. Mr. Mashal proceeded directly to the Southwest Airlines ticketing counter as instructed. He handed the ticketing agent his driver’s license. The agent typed into her computer. She gave Mr. Mashal a strange look and went into a back office. When she returned several minutes later, Mr. Mashal turned around and saw that he was surrounded by approximately thirty government officials, including TSA officers and Chicago Police. The ticketing agent returned with Mr. Mashal’s driver’s license. She told him that he was on the No Fly List and that he would not be able to board any airlines.
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269. A Chicago police officer took Mr. Mashal’s driver’s license and checked to see if there were any outstanding warrants against him. An officer told Mr. Mashal that FBI agents were at the airport and wanted to speak with him.
270. A government official arrived at the ticket counter and introduced himself to Mr. Mashal as Agent Michael Dowler of the FBI. Agent Dowler asked Mr. Mashal if he would mind going with him to a back room to answer a few questions. Mr. Mashal agreed to do so and joked, “I only have one rule. No waterboarding!” Agent Dowler laughed and escorted Mr. Mashal to a back room. Several TSA and Chicago police officers followed.
271. Mr. Mashal was asked to sit down in a chair. Two TSA officers sat down next to him. Agent Dowler questioned Mr. Mashal for approximately thirty minutes. The agent asked Mr. Mashal why he was traveling to Spokane. Mr. Mashal explained that he had been hired by a client to train a dog in Spokane. The agent requested the client’s name and information. Mr. Mashal provided the requested information. Agent Dowler also asked Mr. Mashal if he had a passport and asked for his identifying information, including his social security number. Mr. Mashal replied that he did not have a passport and provided the requested information. Agent Dowler asked Mr. Mashal deeply personal questions, including questions about his religious identity and beliefs, his religious practice, and his family members.
272. Mr. Mashal asked Agent Dowler why his name was on the No Fly List. The agent stated that he did not know why and that, even if he did, he could not tell Mr. Mashal.
273. After making several phone calls, Agent Dowler told Mr. Mashal that he was free to leave. Several TSA agents escorted Mr. Mashal outside of the airport.
274. Mr. Mashal called his wife and explained to her what happened. Forty minutes later, she arrived at the airport and drove him to their home.
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275. Mr. Mashal called his client in Spokane. He told her that his flight had been canceled and that he would not be able to travel to Spokane to train her dog.
276. Two hours later, Mr. Mashal received a phone call from an Agent Mike Tsahiridis of the FBI. The agent asked Mr. Mashal if he was home and stated that he was located five minutes away from Mr. Mashal’s house. Mr. Mashal indicated that he was at home.
277. Five minutes later, two FBI agents arrived in front of Mr. Mashal’s home. Mr. Mashal met them on the driveway outside of his house. The agents showed Mr. Mashal their badges and introduced themselves as Mike Tsahiridis and Lukas Miller of the FBI. The agents asked Mr. Mashal if they could ask him a few additional questions. Mr. Mashal agreed and escorted the agents inside his home.
278. Agents Tsahiridis and Miller questioned Mr. Mashal for approximately an hour. The agents had a No Fly List question and answer sheet from which they read questions. Among other things, the agents asked Mr. Mashal for his email addresses, the name of his bank, and whether he has accounts on Facebook, Myspace, and Twitter.
279. After the agents learned that Mr. Mashal was a veteran of the U.S. Marine Corps, they took out an additional question and answer sheet and asked him questions from that document. The agents asked Mr. Mashal if he had ever received explosives training in the military. Mr. Mashal responded that he had not.
280. Later that day, on April 20, 2010, Mr. Mashal completed a DHS TRIP form online. He was assigned Redress Control Number 2095831.
281. Several days later, Mr. Mashal received a call from his client in Spokane. The client stated that an FBI agent had come to her home and asked her questions about Mr. Mashal. She told Mr. Mashal that she was no longer comfortable with having him come to her
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home to train her dog. She requested that Mr. Mashal provide her a full refund of the costs she had incurred in paying for his round-trip airline tickets, hotel accommodation in Spokane, and dog training services fee. Mr. Mashal returned approximately $2,000 to the client.
282. Approximately one week after Mr. Mashal was denied boarding on his Southwest Airlines flight, he received a call from Agent Tsahiridis. The agent told Mr. Mashal that he and Agent Miller would recommend that Mr. Mashal be removed from the No Fly List. He stated that he would call Mr. Mashal again if he or Agent Miller had any additional questions for him. Agent Tsahiridis stated that he might be able to secure a temporary boarding pass so that Mr. Mashal could fly to Spokane. Mr. Mashal explained that because an FBI agent had visited the Spokane client, she had canceled her request for dog training services from Mr. Mashal.
283. On or around June 21, 2010, Mr. Mashal received a phone call from Agent Tsahiridis. The agent stated that he had good news and that he wanted to meet with Mr. Mashal later in the week to discuss the news. Mr. Mashal asked if they could discuss the news over the phone. Agent Tsahiridis stated that he could not and requested that Mr. Mashal meet him at the Embassy Suites Hotel in Schaumburg, Illinois. The agent told Mr. Mashal that he would like to buy him lunch and discuss the matter.
284. On June 23, 2010, Mr. Mashal went at the Embassy Suites Hotel in Schaumburg. He called Agent Tsahiridis to let him know that he had arrived and was waiting in the hotel lobby.
285. Agent Tsahiridis met Mr. Mashal in the hotel lobby and asked if he would mind coming up to a room.
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286. Agent Tsahiridis escorted Mr. Mashal to a room on the fourth floor of the hotel, where Agent Miller was waiting for Mr. Mashal. The agents asked Mr. Mashal to sit at a round table and to make himself at home, drink some coffee, eat donuts, and relax. The room contained a large flat-screen television on which a soccer game was playing and a table with coffee and donuts.
287. Agent Tsahiridis told Mr. Mashal that there was no mistake and that he was on the No Fly List. The agents stated that Mr. Mashal was on the list because he had sent emails to the website and blog of a particular imam. Mr. Mashal had emailed the imam between June 2008 and October 2009 to ask questions relating to deeply personal issues, including a family member's substance abuse problems and about how to raise Muslim children in an interfaith household. Agent Tsahiridis told Mr. Mashal that the agents wanted him to help them find the imam. He stated that if Mr. Mashal would help the FBI by serving as an informant, his name would be removed from the No Fly List and he would receive compensation. Agent Miller emphasized that Mr. Mashal would be compensated if he were to work for the FBI.
288. Mr. Mashal asked the agents if they were asking him to serve in the capacity of an independent contractor. The agents explained that he would not be an independent contractor and that Mr. Mashal could not tell anyone, including his wife, that he was working with the FBI. The agents explained that he would be an informant and that the FBI had informants all over the Midwestern United States, including at the mosque that Mr. Mashal attended. The agents told Mr. Mashal that if he were to serve as an informant, he would be compensated for his time and that he would work with the agents by meeting with them at various hotels and using aliases to relay information. The agents asked Mr. Mashal to log onto his email account on their laptop so that they could determine whether they could trust him.
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289. Mr. Mashal felt extremely uncomfortable with the request to serve as an FBI informant. He told the agents that he was no longer comfortable answering their questions without his attorney present. The agents promptly ended the meeting.
290. Later that night, Agent Tsahiridis texted Mr. Mashal the following message: “Abe, hope your [sic] well. Sorry our meeting ended so abruptly. Please contact me if you would like to further discuss.”
291. Mr. Mashal consulted an attorney regarding whether he should speak to the FBI. He decided that he would speak to the FBI with his attorney present.
292. Several days later, Mr. Mashal called Agent Tsahiridis. He left a message stating that he would be glad to meet with the agent and to go through emails in his personal email account with the agent either at his home or at his attorney’s office with his attorney present. Agent Tsahiridis did not return Mr. Mashal’s phone call.
293. Since Mr. Mashal was denied boarding on his Southwest flight on April 20, 2010, nine individuals not located within driving distance of St. Charles have contacted Mr. Mashal online and by phone to request that he provide them with dog training services. Mr. Mashal has had to decline each of these requests because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace and because he has no other practical means of traveling to these clients. If Mr. Mashal had provided dog training services to all nine of these potential clients, he would have generated approximately $18,000 of profit for his business and numerous referrals to new clients.
294. Mr. Mashal presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List.
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295. To this day, Mr. Mashal cannot board a commercial flight to or from the United States or over U.S. airspace. Mr. Mashal has been told by an airline employee and government officials that he will not be permitted to travel on any commercial flight departing from the United States. Mr. Mashal’s dog-training business has been seriously harmed because Defendants have prevented him from traveling on commercial flights over U.S. airspace and he is therefore unable to travel to potential clients who are not located within driving distance of St. Charles. Because Defendants have barred Mr. Mashal from boarding commercial flights to or from the United States or over U.S. airspace, he is unable to travel for his business, has lost at least nine clients and $18,000 in profit, and will not be able to visit his sister-in-law in Hawaii in November 2010 with this extended family as planned.
Salah Ali Ahmed 296. Plaintiff Salah Ali Ahmed is a fifty-eight year-old U.S. citizen and resident of Norcross, Georgia, where he works as an electrical technician. Mr. Ahmed is of Somali and Yemeni descent was born and raised in Somalia. He moved to Atlanta in 1992 and became a naturalized U.S. citizen in 2007. His U.S.-citizen wife and six children, five of whom are U.S. citizens and one of whom is a legal permanent resident, live with him in Norcross. His siblings, nieces, nephews, and other relatives live in Yemen. 297. Mr. Ahmed planned to take four weeks of vacation from his job to visit relatives in Yemen, including his siblings, nieces, nephews and other relatives. After securing permission to take this vacation in late June 2009, he purchased a round-trip ticket to travel on Lufthansa from Atlanta to Sana’a with a change of aircraft in Frankfurt. He was scheduled to depart Atlanta on July 16, 2010 and to return on August 16, 2010.
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298. On July 16, 2010, Mr. Ahmed arrived at Hartsfield-Jackson Atlanta International Airport several hours before his 6:00 P.M. flight on Lufthansa was scheduled to depart for Frankfurt. He went to the Lufthansa ticketing counter and provided his passport to an airline employee to obtain a boarding pass for his flight. The Lufthansa employee scanned his passport. After looking at her computer screen, she told Mr. Ahmed that his passport was “flagged” and that he could not board the flight. Mr. Ahmed was confused. The Lufthansa employee stated: “You cannot board any flight, even if it is within the United States.”
299. The Lufthansa employee gave Mr. Ahmed a document instructing him to write to TSA and to call a TSA Consumer Hotline at (866) 289-9673 regarding any “claims related to the screening of passengers and their baggage.” The document stated that TSA, “with limited exceptions, . . . will determine whether claims shall be paid and in what amount.” The document did not indicate how Mr. Ahmed could learn the reason why he was denied boarding on his Lufthansa flight, how he could contest those reasons, or how he could regain the ability to fly. The airline employee asked Mr. Ahmed to step aside and proceeded to assist another customer.
300. About forty-five minutes to one hour later, several government officials surrounded Mr. Ahmed where he stood next to the Lufthansa ticketing counter. Upon information and belief, the officers included a U.S. Marshal and officers from the Atlanta Police Department and the TSA.
301. The officers spoke to Mr. Ahmed for approximately thirty minutes. The TSA officer took Mr. Ahmed’s driver’s license and passport to have copies made. He asked Mr. Ahmed for his Social Security number and address and conducted a brief interview. The TSA
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officer stated that Mr. Ahmed and the officers should go to a back room to talk further. The U.S. Marshal rejected this idea and stated that the group should step aside to the hallway instead.
302. The TSA officer told Mr. Ahmed that he was “flagged” and that he would not be allowed to board any flights. The officer told Mr. Ahmed that he could travel by car, but that he could not leave the country by plane. He explained that Mr. Ahmed could call the TSA Hotline to complain.
303. The U.S. Marshal asked Mr. Ahmed where he lived, when he had last left the United States, and when he had last traveled to Yemen, among other things. Mr. Ahmed responded that he did not remember the precise details of his last trip and that all of the requested information was available in his passport. The U.S. Marshal insisted that Mr. Ahmed answer his questions. Mr. Ahmed responded to the best of his ability.
304. After approximately thirty minutes of questioning, a government official who appeared to be a DHS official arrived and introduced himself. The DHS official told Mr. Ahmed that he could not explain why Mr. Ahmed had been denied boarding on his Lufthansa flight, but that it was possible that Mr. Ahmed was “flagged” because of his name. He explained that Mr. Ahmed might have the same name as an individual who is not permitted to fly and that, as a result, he might be a “false positive” match for a name on the No Fly List. Mr. Ahmed asked: “Where did this information come from? The FBI?” The DHS official replied: “Yes.” Mr. Ahmed asked for documentation. The officers refused. Mr. Ahmed requested the officers’ business cards and for the officers to identify themselves by name. The officers refused these requests and escorted Mr. Ahmed out of the airport. Mr. Ahmed returned home to his family.
305. On July 27, 2010, Mr. Ahmed submitted a DHS TRIP form. He was assigned Redress Control Number 2106580.
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306. Mr. Ahmed presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List.
307. To this day, Mr. Ahmed cannot board a commercial flight in the United States. Mr. Ahmed has been told by an airline employee and government officials that he will not be permitted to travel on any commercial flight departing from the United States. Because Defendants have barred Mr. Ahmed from boarding commercial flights to or from the United States or over U.S. airspace, Mr. Ahmed is unable to travel to visit relatives or to address issues concerning land and other property he owns in Yemen, a country to which he has traveled on only one occasionin 2008since moving to the United States in 1992.
Amir Meshal 308. Plaintiff Amir Meshal is a twenty-seven year-old U.S. citizen and resident of Tinton Falls, New Jersey. He currently works as a cab driver in New Jersey. 309. In or around May 2009, Mr. Meshal planned to travel from New Jersey to Orange County, California to visit friends. 310. On June 9, 2009, Mr. Meshal went to the Continental Airlines ticketing counter at Newark International Airport to obtain a boarding pass for Continental Airlines Flight 387 to Irvine, California. A ticketing agent attempted to check Mr. Meshal in for the flight. The employee told Mr. Meshal that he needed to call the toll-free number for Continental Airlines. After the ticketing agent placed the call, he told Mr. Meshal that he had been placed on hold. 311. After Mr. Meshal had waited for approximately forty-five minutes, two Port Authority police officers arrived at the Continental Airlines ticketing counter. The officers were soon joined by several additional uniformed and plain-clothed colleagues.
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312. The police officers questioned Mr. Meshal about his itinerary and whether he had ever been arrested. Eventually, approximately thirty law enforcement officers stood in a phalanx around Mr. Meshal in the Continental Airlines ticketing area.
313. One officer identified himself to Mr. Meshal as an FBI agent. The agent explained to Mr. Meshal that the government maintains two lists, one that imposes heightened security measures on individuals whose names appear on the list and another that precludes a listed individual from flying altogether. The FBI agent informed Meshal that he was on the latter list, i.e., the No Fly List.
314. The FBI agent subjected Mr. Meshal’s baggage to inspection by a bombsniffing dog. The agent asked Meshal whether he was carrying explosives and admonished him to “be honest,” lest the dog contradict him. There were no explosives in Mr. Meshal’s baggage.
315. The FBI agent left the scene, then returned. He told Mr. Meshal that he had called another FBI agent in New Jersey who “knows a lot about you” and that “your story checked out.” The FBI agent permitted Mr. Meshal to leave the airport.
316. On June 10, 2009, Mr. Meshal filed a DHS TRIP form online. He was assigned Redress Control Number 2061053.
317. On September 22, 2009, Mr. Meshal’s attorney sent a letter to Defendant Robert S. Mueller and Secretary of Homeland Security Janet Napolitano stating: “I write on behalf of my client, Amir Meshal, an American citizen from New Jersey who has been placed on the ‘no-fly’ list administered by the Federal Bureau of Investigation (FBI) and enforced by the Transportation Security Administration (TSA). Mr. Meshal has not received any notice of the reason for his placement on the no-fly list or any meaningful opportunity to respond to the
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government’s basis for barring him from air travel. This letter constitutes a demand that the FBI and TSA promptly remedy their unconstitutional conduct.”
318. FBI agents subsequently offered Mr. Meshal the opportunity to serve as a government informant and, in exchange, promised, among other things, to help remove him from the No Fly List. One agent told Mr. Meshal: “If you help us, we can help get you off of the No Fly List.”
319. On June 21, 2010, Mr. Meshal received a letter from DHS in “further response” to his June 2009 TRIP form. It stated: “This letter is in further response to the October l3, 2009 letter that you received from the Department of Homeland Security (DHS) Traveler Redress Inquiry Program (TRIP), regarding the difficulties you experienced while traveling. After consultation with other federal agencies, as appropriate, it has been determined that no changes or corrections are warranted to any applicable records at this time.” Mr. Meshal never received the October 13, 2009 letter from DHS TRIP referenced in the June 21, 2010 letter.
320. In November 2006, Mr. Meshal traveled to Mogadishu, Somalia to enhance his understanding of Islam and to experience living in an area governed by Islamic law. After the eruption of hostilities between the authority in control of Mogadishu at the time and a U.S.-backed Ethiopian military force in December 2006, Mr. Meshal fled Somalia for safety in Kenya. He was apprehended in Kenya, near the border, and was subsequently detained for more than four months in three different countries—Kenya, Somalia, and Ethiopia. He was eventually released from custody and returned to the United States. He was not charged with any crime. In November 2009, the ACLU filed a lawsuit on behalf of Mr. Meshal in the United States District Court for the District of Columbia, challenging the conduct and participation of four FBI agents in his illegal detention, rendition, and coercive interrogation in Kenya, Somalia, and Ethiopia.
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321. Mr. Meshal presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List.
322. To this day, Mr. Meshal remains unable to travel by commercial airline. He has been denied the ability to travel by commercial airline within the United States. He has been told by FBI agents that he will not be permitted to travel on any commercial flight to or from the United States or over U.S. airspace. Because Defendants have barred Mr. Meshal from boarding commercial flights to or from the United States or over U.S. airspace, he cannot fly for business or pleasure, cannot visit relatives in Florida or Minnesota, and cannot perform the Hajj pilgrimage in Saudi Arabia, which is a requirement of the Muslim faith.
Stephen Durga Persaud 323. Plaintiff Stephen Durga Persaud is a twenty-nine-year old U.S. citizen and resident of Irvine, California. Mr. Persaud is a registered nurse. 324. Mr. Persaud and his wife moved to St. Thomas in the U.S. Virgin Islands in January 2007 to visit family and attend nursing school. They continued to maintain close ties with relatives in the Los Angeles-area. In June 2009, Mr. Persaud, his wife, and their son flew from St. Thomas to Los Angeles. There, they spent the summer with relatives and Mr. Persaud’s wife worked as a nurse. Mr. Persaud flew back to St. Thomas in August 2009. His wife and son joined him in St. Thomas the following month. 325. Mr. Persaud and his family planned to move back to California in May 2010 so that Mr. Persaud’s wife could deliver their second child there and so that he could apply to and attend a graduate program in nursing. Mr. Persaud purchased tickets for the family to fly from St. Thomas to Irvine with a change of planes in Miami International Airport.
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326. On May 11, 2010, Mr. Persaud, his wife, and their sixteen-month old son, went to Cyril E. King Airport in St. Thomas to commence their trip home to Irvine. They went to the American Airlines check-in kiosk to obtain boarding passes for American Airlines Flight 842 to Miami International Airport. The kiosk screen flashed an error sign when Mr. Persaud attempted to obtain the boarding passes. An American Airlines employee came to the kiosk and said, “Let me see if I can take care of that.”
327. The American Airlines employee asked Mr. Persaud and his family to stand by the side of the ticket counter while she tried to figure out the problem. The employee started helping other customers.
328. Five government officials appeared and surrounded Mr. Persaud, his wife, and their son. One introduced himself as FBI Agent Ricardo Hernandez. Agent Hernandez told Mr. Persaud, “You were denied boarding and we have to find out why. We just have to clear up some things real quick. We should be able to get you on the plane.”
329. The agents separated Mr. Persaud from his wife and son and took him to a room for questioning by Agent Hernandez and another FBI agent. Mr. Persaud’s wife was taken to a separate room where she was questioned by two other FBI agents. Several agents stood outside the rooms where Mr. Persaud and his wife were being questioned.
330. FBI agents questioned Mr. Persaud about his overseas travels, including his time teaching English in Puntland, the area of northeastern Somalia, in 2006. During this questioning, Agent Hernandez informed Mr. Persaud that he was on the No Fly List. Agent Hernandez stated, “We know you were in Somalia. We’d like to know where, why, and what parts you visited.”
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331. After two hours of questioning, Agent Hernandez and the other FBI agent made it clear that Mr. Persaud would not be able to fly. Mr. Persaud was permitted to leave the interview room and rejoin his wife and son.
332. At this point, although FBI agents had finished questioning Mr. Persaud’s wife and permitted her to board the flight, American Airlines Flight 842 had already departed. Mr. Persaud’s pregnant wife and son were forced to wait in the airport for an additional three hours to catch a new series of flights to Irvine. This new itinerary required them to stop in two different cities to change planes.
333. After his wife and son had left, Mr. Persaud remained in St. Thomas, unable to board a plane.
334. The following day, on May 12, 2010, Mr. Persaud and his attorney met with Agent Hernandez. Agent Hernandez and another agent questioned Mr. Persaud for three hours about his time teaching English in Puntland. At no point did either agent tell Mr. Persaud why he had been denied boarding on his American Airlines flight.
335. Approximately one week later, FBI agents contacted Mr. Persaud’s father in New Jersey. The agents convinced Mr. Persaud’s father that he should fly to St. Thomas to persuade Mr. Persaud to speak further with the FBI.
336. On or around May 25, 2010, Mr. Persaud’s father arrived in St. Thomas. After discussing the situation with his father, Mr. Persaud decided not to speak further with the FBI.
337. Mr. Persaud and his father desperately sought a way for Mr. Persaud to return to Irvine, where his pregnant wife and son waited for him, before the birth of his second
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child. Mr. Persaud obtained a ticket on a Carnival Cruise ship that was to depart from St. Thomas on June 1, 2010.
338. On June 1, 2010, Mr. Persaud boarded the Carnival Cruise ship at St. Thomas. The following morning, on June 2, 2010, the boat stopped in Old San Juan, Puerto Rico. Agent Hernandez boarded the ship while it was docked. Mr. Persaud was surprised to see Agent Hernandez and asked why he was following him onto a ship. The agent told Mr. Persaud that his name would remain on the No Fly List and that this was a “symptom of a greater problem” that would be resolved only if Mr. Persaud cooperated with the FBI. Agent Hernandez explained that the FBI could contact everyone who knows Mr. Persaud, which would make it harder for him to continue with his education and secure employment. Agent Hernandez threatened to take Mr. Persaud off of the ship and to leave him in Puerto Rico if Mr. Persaud did not speak with him.
339. Mr. Persaud told Agent Hernandez that he wanted a lawyer present during any questioning. The agent responded that a lawyer would cost a lot of money and that Mr. Persaud would end up talking to the FBI anyway. Agent Hernandez stated, “There is no judicial process for getting off the No Fly List. The only way to get off the list is to talk to us.”
340. After five days of traveling by boat, Mr. Persaud arrived in Miami on June 5, 2010. The following morning, he commenced a four-day journey to travel by train to his home in Irvine. Mr. Persaud arrived in Washington, D.C. on June 7, 2010, after a twenty-three hour trip from Miami. He then traveled for sixteen hours from Washington, D.C. to Chicago, arriving on June 8, 2010. Finally, he traveled for forty-one hours from Chicago to Los Angeles, and reached his destination on June 10, 2010.
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341. Agent Hernandez followed Mr. Persaud onto the train from Miami to Washington D.C. The agent asked Mr. Persaud if he would work with the FBI by informing them if he came across anybody seeking to travel to Somalia or to become a terrorist. Mr. Persaud responded that he does not associate with any such individuals. Agent Hernandez insisted that because Mr. Persaud had been in Somalia, such persons would trust him.
342. Mr. Persaud and his wife had a baby boy on June 30, 2010. 343. On June 11, 2010, Mr. Persaud filed a completed DHS TRIP form. He was assigned Redress Control Number 2102070. 344. Mr. Persaud presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List. 345. To this day, Mr. Persaud remains unable to travel by commercial airline. He has been denied the ability to travel by commercial airline from St. Thomas to San Francisco, via Miami. He has been told by an FBI agent that he will not be permitted to travel on any commercial flight to or from the United States or over U.S. airspace. Because Defendants barred Mr. Persaud from boarding commercial flights to or from the United States or over U.S. airspace, he was delayed in returning to the United States from St. Thomas and required to postpone his application to a graduate program in nursing that would have placed him in a job, and he cannot fly for business or pleasure, cannot visit family in Tortola in the British Virgin Islands, and cannot travel to Saudi Arabia to perform the Hajj pilgrimage. Adama Bah 346. Plaintiff Adama Bah is a citizen of Guinea who moved to the United States with her family when she was two years old. In 2007, Ms. Bah was granted political
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asylum on the ground that she would be subject to persecution if deported to Guinea. She currently lives in New York.
347. Since 2008, Ms. Bah has worked in New York as a caregiver for two children and their mother, who is paralyzed from the waist down. Her duties include accompanying the family on their vacations and other trips to care for the children and their mother.
348. In March 2010, Ms. Bah’s employers requested that she travel with them to Chicago on a trip to visit a relative suffering from cancer. They purchased tickets for her to travel to Chicago’s O’Hare International Airport on American Airlines.
349. On March 31, 2010, Ms. Bah went to LaGuardia Airport to board American Airlines Flight 327 bound for Chicago. She attempted to check in at the automatic ticket window but received the message “See an agent.”
350. Ms. Bah asked an airline employee to help. An American Airlines employee scanned her ticket receipt and pulled something up on a computer. An alert appeared on the screen. The employee stated: “I have to call my supervisor. We have to work this out.”
351. An American Airlines supervisor and a female Port Authority officer arrived. The Port Authority officer told Ms. Bah that she is on the No Fly List. Several other officers and government officials arrived.
352. The Port Authority officer asked Ms. Bah: “Do you have any idea why this is happening?” Ms. Bah responded that she had been detained by immigration authorities as a teenager but had been released without ever being charged with a crime.
353. At the American Airlines check-in counter, an airline employee informed Ms. Bah that she is on the No Fly List.
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354. FBI Special Agent Marc Fenichel and New York Police Department Detective Jon McCormack arrived at the airport, and Ms. Bah met with them in a private room, accompanied by counsel, who had also arrived. The agents did not explain why Ms. Bah was not permitted to fly.
355. When Ms. Bah was sixteen years old, she was arrested and detained on immigration grounds because her childhood visa was no longer valid. She was held for six weeks in a juvenile detention center and faced deportation proceedings, but was permitted to remain in the United States after being granted asylum. Ms. Bah has never been charged with any crime.
356. On April 26, 2010, Ms. Bah submitted a completed DHS TRIP form. She was assigned Redress Control Number 2096479.
357. On June 30, 2010, Ms. Bah filed the instant action against the Defendants for violation of her constitutional rights, seeking removal of her name from any government watch list that has prevented her from flying or, in the alternative, a hearing in which she can confront any evidence against her and contest her unlawful designation.
358. Ms. Bah received a letter dated July 27, 2010 from Jim Kennedy of the DHS Traveler Redress Inquiry Program stating that DHS had received her Traveler Inquiry Forms and supporting materials submitted through the TRIP system. The letter stated: “DHS has researched and completed our review of your case. Security procedures and legal concerns mandate that we can neither confirm nor deny any information about you which may be within federal watchlists or reveal any law enforcement sensitive information. However, we have made any corrections to records that our inquiries determined were necessary, including, as appropriate, notations that may assist in avoiding instances of misidentification.”
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359. Ms. Bah presents no security threat to commercial aviation and knows of no reason why she would be placed on the No Fly List.
360. To this day, Ms. Bah cannot board a commercial airline in the United States. Ms. Bah has been told by an airline employee that she will not be permitted to travel on any commercial flight in the United States. Because Defendants have barred her from boarding commercial flights to or from the United States or over U.S. airspace, Ms. Bah has been unable to visit close friends in Ohio, Denver and Atlanta as planned, and has lost the opportunity to earn wages that she would otherwise earn by providing caregiver services to her employer’s family during their business or personal trips outside of New York City that involve plane travel.
Halime Sat 361. Plaintiff Halime Sat is a twenty-eight year-old German citizen and lawful permanent resident of the United States. She was born in Bursa, Turkey and raised in Cologne, Germany. She is a resident of Corona, California, and has lived in the United States for approximately two years. She is married to a U.S.-born citizen. 362. Ms. Sat traveled by plane without incident as recently as December 2009 on a flight to St. Louis, Missouri. 363. On April 23, 2010, Ms. Sat and her husband were scheduled to fly from Long Beach, California to Oakland, California on JetBlue Airways Flight B6 250 to attend a conference. When Ms. Sat attempted to check in at the electronic kiosk, she was unable to do so. She went to the check-in counter and realized that her ticket had been booked incorrectly as “Halime Sat Mustafa.” “Mustafa” is the first name of Ms. Sat’s husband, Mustafa Umar. JetBlue Manager Juan Gonzales told Ms. Sat that it would be no problem to change the name on
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her ticket to her correct name. He changed the name on the ticket to “Halime Sat” and said that he had to “clear it with security.”
364. Upon information and belief, Mr. Gonzales called the JetBlue security desk and the security desk told him to speak to a federal agent in Washington, D.C. Mr. Gonzales was on the phone for approximately one hour, on hold with the agency waiting for information or clearance.
365. Meanwhile, Mr. Gonzales recommended that Ms. Sat’s husband proceed to the gate so that he would not miss the flight. He did so and decided to wait for his wife by the gate until the final boarding call, hoping that she would receive clearance in time to join him and board the plane. Her husband informed the gate agents that he was waiting for his wife and would board just before they were ready to close the gate. The agents agreed to allow him to wait. He waited by the gate for ten minutes until the gate agents received a message by radio. The agents then promptly shut the gate and would not allow him to board the plane. When he asked them why, the agents responded that they were ordered not to allow him to board the plane. Ms. Sat’s husband then returned to the ticket counter where she continued to wait.
366. At that point, Mr. Gonzales informed Ms. Sat and her husband that Ms. Sat was on the No Fly List and that because their tickets were booked together, he was not allowed to fly, either.
367. Shortly thereafter, an airport police officer approached Ms. Sat and her husband. He asked Ms. Sat’s husband for his identification. The officer read his name over his radio and at least five police or airport security officers came and surrounded Ms. Sat and her husband.
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368. The officers asked Ms. Sat and her husband to sit down in the check-in area lounge. The officers watched over Ms. Sat and her husband in the lounge. They did not inform Ms. Sat or her husband of any reason for Ms. Sat’s placement on the No Fly List, for preventing them both from boarding their scheduled flight, or for their detention at the airport. Ms. Sat and her husband were embarrassed and humiliated by this experience.
369. Approximately one half hour to an hour later, FBI Agents David Gates and Douglas M. Swain arrived. The agents told Ms. Sat and her husband that Ms. Sat was on the No Fly List. The agents asked Ms. Sat about the origin of her last name and about when the couple had last traveled by plane. The couple refused to answer any additional questions without the assistance of a lawyer.
370. On April 28, 2010, Ms. Sat completed a DHS TRIP form online. She was assigned Redress Control Number 2096525.
371. On May 10, 2010, Ms. Sat also submitted a Freedom of Information Act and Privacy Act request to the FBI, DHS, and Immigration and Customs Enforcement for information pertaining to her nomination to the No Fly List.
372. On June 7, 2010, counsel for Ms. Sat spoke with FBI Agent David Gates who confirmed that Ms. Sat has a “real match” and is on the No Fly List.
373. On June 14, 2010, counsel for Ms. Sat sent a complaint to the TSA Ombudsman’s office regarding Ms. Sat’s placement on the No Fly List, but has received no response.
374. Ms. Sat received a letter dated June 22, 2010 from Jim Kennedy of the DHS Traveler Redress Inquiry Program stating that DHS had received her Traveler Inquiry Forms and supporting materials submitted through the TRIP system. The letter stated: “DHS
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has researched and completed our review of your case. Security procedures and legal concerns mandate that we can neither confirm nor deny any information about you which may be within federal watchlists or reveal any law enforcement sensitive information. However, we have made any corrections to records that our inquiries determined were necessary, including, as appropriate, notations that may assist in avoiding instances of misidentification.”
375. Ms. Sat presents no security threat to commercial aviation and knows of no reason why she would be placed on the No Fly List.
376. To this day, Ms. Sat cannot board a commercial flight in the United States. Ms. Sat has been told that by an FBI agent that she is on the No Fly List and will not be permitted to travel on any commercial flight to or from the United States or over U.S. airspace. Because Defendants have barred her from boarding commercial flights to or from the United States or over U.S. airspace, Ms. Sat was unable to attend a conference in the Bay Area, was forced to withdraw from a competitive educational course in New York City that was to commence at the end of June and to which she was accepted, was forced to cancel her plans to attend her family reunion in Germany in July, and was forced to cancel her plans to travel to Mecca, Saudi Arabia to perform the Hajj pilgrimage in November.
CLAIMS COUNT I FAILURE TO PROVIDE NOTICE AND HEARING Procedural Due Process (Fifth Amendment) 377. Defendants’ actions deprive Plaintiffs of constitutionally protected liberty interests, including but not limited to those identified below.
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378. Plaintiffs have a liberty interest in traveling free from unreasonable burdens within, to, or from the United States, or over U.S. air space.
379. Plaintiffs have the right to be free from false governmental stigmatization as individuals associated with terrorist activity, when such harm arises in conjunction with the deprivation of their right to travel on the same terms as other travelers.
380. Plaintiffs have the right to be free from false governmental stigmatization as individuals associated with terrorist activity, when such harm arises in conjunction with the deprivation of their liberty interest under the Fifth Amendment in travel free from unreasonable burdens.
381. Plaintiffs have a liberty interest in nonattainder (i.e., the interest against being singled out for punishment without trial). Defendants’ actions have singled out Plaintiffs for punishments that include, but are not limited to, inability to travel by air to the United States, from the United States, and over U.S. airspace, effective banishment from the United States, and effective expatriation from the United States.
382. Plaintiffs Omar and Abdul Hakeim Thabet Ahmed, lawful permanent residents (LPRs) with continual residence in the United States, have a liberty interest in maintaining their LPR status and a right—both statutory and constitutional—not to have their LPR status revoked, modified, or altered without due process of law. Defendants have deprived Mr. Omar and Mr. Abdul Hakeim Thabet Ahmed of these rights by preventing them from returning to the United States and by preventing them from returning before the expiration of 180 days from the date of their respective departures from the United States.
383. Plaintiffs Omar and Abdul Hakeim Thabet Ahmed also have a liberty interest in not having their eligibility for naturalization revoked, modified, or altered without due
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process of law. Defendants have deprived Mr. Omar and Mr. Abdul Hakeim Thabet Ahmed of these rights by preventing them from returning to the United States, by preventing them from returning to the United States before the expiration of 180 days from the date of their respective departures from this country, and by preventing them from returning before the expiration of one year from the date of such departures.
384. Plaintiffs are entitled to a legal mechanism that affords them notice and an opportunity to contest their inclusion on terrorist watch lists.
385. Plaintiffs are entitled to a legal mechanism that affords them notice and an opportunity to contest the deprivation of their liberty interests, including but not limited to their liberty interests in traveling, freedom from false stigmatization, and nonattainder due to their inclusion on terrorist watch lists that prevent them from flying on commercial airplanes.
386. Defendants have violated Plaintiffs’ rights without affording them due process of law and will continue to do so into the future if Plaintiffs are not afforded the relief demanded below.
COUNT II VIOLATION OF U.S. CITIZENS’ RIGHT TO RESIDE IN UNITED STATES AND
TO REENTER THE UNITED STATES FROM ABROAD Right to Citizenship (Fourteenth Amendment)
(Plaintiffs Latif, Knaeble, Kashem, Elias Mustafa Mohamed, Samir Mohamed Ahmed Mohamed, and Muthanna against Defendants)
387. Defendants’ actions described herein deprive Plaintiffs Latif, Knaeble, Kashem, Elias Mustapaha Mohamed, Samir Mohamed Ahmed Mohamed, and Muthanna of rights guaranteed by the Fourteenth Amendment to the U.S. Constitution.
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388. Plaintiffs Latif, Knaeble, Kashem, Elias Mustafa Mohamed, Samir Mohamed Ahmed Mohamed, and Muthanna are U.S. citizens and therefore have an absolute right to reside in the United States and to return to the United States from abroad.
389. Defendants have violated and continue to violate the Fourteenth Amendment right to U.S. citizenship of Plaintiffs Latif, Knaeble, Kashem, Elias Mustafa Mohamed, Samir Mohamed Ahmed Mohamed, and Muthanna by depriving them of their rights or the full effect of their rights to reside in the United States and to reenter the United States from abroad by preventing them from boarding commercial flights to the United States or over U.S. airspace, even though Plaintiffs Latif, Knaeble, Kashem, Elias Mustafa Mohamed, Samir Mohamed Ahmed Mohamed, and Muthanna have no other practicable means of returning to the United States.
COUNT III FAILURE TO PROVIDE NOTICE OF IMMIGRATION CHARGES AND REMOVAL
HEARING; VIOLATION OF THE IMMIGRATION AND NATIONALITY ACT 8 U.S.C. § 1229a and 8 U.S.C. § 1101(a)(20)
(Plaintiffs Omar and Abdul Hakeim Thabet Ahmed against Defendants) 390. Defendants’ actions described herein deprive Plaintiffs Omar and Abdul
Hakeim Thabet Ahmed of rights guaranteed by the Immigration and Nationality Act (INA). 391. As lawful permanent residents of the United States, Plaintiffs Omar and
Abdul Hakeim Thabet Ahmed have each been “lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws.” 8 U.S.C. § 1101(a)(20).
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392. Defendants cannot deprive Mr. Omar and Mr. Abdul Hakeim Thabet Ahmed of the privilege of residing permanently in the United States without charging them and providing them each with a removal hearing before an immigration judge, in accordance with the procedures set forth in 8 U.S.C. § 1229a.
393. Defendants have violated the INA by excluding Mr. Omar and Mr. Abdul Hakeim Thabet Ahmed from the United States and preventing their return to the United States without charge and without a removal hearing.
COUNT IV UNLAWFUL AGENCY ACTION
5 U.S.C. §§ 702, 706 394. Defendants’ actions described herein were and are arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional rights, power, privilege, or immunity, and should be set aside as unlawful pursuant to 5 U.S.C. § 706. 395. Defendants’ violations of Plaintiffs’ constitutional and statutory rights constitute agency actions that are arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional rights, power, privilege, or immunity in violation of 5 U.S.C. § 706.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request the following relief: a. A declaratory judgment that:
i. Defendants’ policies, practices, and customs violate the Fifth Amendment to the United States Constitution and the Administrative Procedure Act;
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ii. Defendants’ policies, practices, and customs violate the Fourteenth Amendment to the United States Constitution as to Plaintiffs Latif, Knaeble, Kashem, Elias Mustafa Mohamed, Samir Mohamed Ahmed Mohamed, and Muthanna; and
iii. Defendants’ policies, practices, and customs violate the Immigration and Nationality Act as to Plaintiffs Omar and Abdul Hakeim Thabet Ahmed.
b. An injunction that: i. requires Defendants to remedy the constitutional violations identified above, including the removal of Plaintiffs from any watch list or database that prevents them from flying; or ii. requires Defendants to provide Plaintiffs with meaningful notice of the grounds for their inclusion on a government watch list, and an opportunity to rebut the government’s charges and to clear their names; and,
iii. requires Defendants to permit Plaintiffs Latif, Knaeble, Kashem, Elias Mustafa Mohamed, Samir Mohamed Ahmed Mohamed, Muthanna, Omar, and Abdul Hakeim Thabet Ahmed to return to the United States by air subject to suitable screening procedures.
c. Awards attorneys’ fees, costs, and expenses of all litigation. d. Grants such other relief as the Court may deem just and proper.
DATED this August 5, 2010 American Civil Liberties Union Foundation /s/ Ben Wizner Ben Wizner (Admitted pro hac vice) Email: bwizner@aclu.org Nusrat Jahan Choudhury (Admitted pro hac vice)
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Email: nchoudhury@aclu.org 125 Broad Street, 18th Floor New York, NY 10004 Tel: 212.519.2500; Fax: 212.549.2654
Tonkon Torp LLP Steven M. Wilker, OSB No. 911882
Email: steven.wilker@tonkon.com 1600 Pioneer Tower 888 SW 5th Avenue Portland, OR 97204 Tel: 503.802.2040; Fax: 503.972.3740 Cooperating Attorney for the ACLU Foundation of Oregon
ACLU Foundation of Oregon Kevin Díaz, OSB No. 970480
Email: kdiaz@aclu-or.org P.O. Box 40585 Portland, Oregon 97240 Tel: 503.227.6928; Fax: 503.227.6948
ACLU Foundation of Southern California Ahilan T. Arulanantham (Admitted pro hac vice)
Email: aarulanantham@aclu-sc.org Jennifer Pasquarella (Admitted pro hac vice)
Email: jpasquarella@aclu-sc.org 1313 West Eighth Street Los Angeles, CA 90017 Tel: 213.977.9500; Fax: 213.977.5297
ACLU Foundation of Northern California Alan L. Schlosser (Admitted pro hac vice)
Email: aschlosser@aclunc.org Julia Harumi Mass (Admitted pro hac vice)
Email: jmass@aclunc.org 39 Drumm Street San Francisco, CA 94111 Tel: 415.621.2493; Fax: 415.255.8437
ACLU Foundation of New Mexico Laura Schauer Ives (Admitted pro hac vice)
Email: lives@aclu-nm.org P.O. Box 566 Albuquerque, NM 87103 Tel: 505.243.0046; Fax: 505.266.5916
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Salahi Law Reem Salahi (Admitted pro hac vice)
Email: rsalahi@salahilaw.com 429 Santa Monica Blvd, Suite 550 Santa Monica, CA 90401 Tel: 510.225.8880 Cooperating Attorney for the ACLU Foundation of Southern California Attorneys for Plaintiffs: Ayman Latif, Mohamed Sheikh Abdirahman Kariye, Raymond Earl Knaeble IV, Faisal Nabin Kashem, Elias Mustafa Mohamed, Steven William Washburn, Samir Mohamed Ahmed Mohamed, Abdullatif Muthanna, Nagib Ali Ghaleb, Saleh A. Omar, Abdul Hakeim Thabet Ahmed, Ibraheim Y. Mashal, Salah Ali Ahmed, Amir Meshal, Stephen Persaud, Adama Bah, and Halime Sat
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 Case 3:10-cv-00750-BR Document 69 Filed 05/03/11 Page 1 of 16 Page ID#: 955

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

AYMAN LATIF, MOHAMED SHEIKH ABDIRAHM KARIYE, RAYMOND EARL KNAEBLE IV, NAGIB ALI GHALEB, SAMIR MOHAMED AHMED MOHAMED, ABDULLATIF MUTHANA, SALEH A. OMAR, FAISAL NABIN KASHEM, ELIAS MUSTAFA MOHAMED, ABDUL HAKEIM THABET AHMED, IBRAHEIM Y. MASHAL, SALAH ALI AHMED, AMIR MESHAL, STEPHEN DURGA PERSAUD, and STEPHEN WILLIAM WASHBURN,
Plaintiffs,
ERIC H. HOLDER, JR., in his official capacity as Attorney General of the UNITED STATES; ROBERT S. MUELLER III, in his official capacity as Director of the Federal Bureau of Investigation; and TIMOTHY J. HEALY, in his official capacity as Director of the Terrorist Screening Center,
Defendants.

10–CV-750-BR OPINION AND ORDER

STEPHEN M. WILKER Tonkon Torp LLP 888 S.W. 5th Avenue, Ste. 1600 Portland, OR 97204 (503) 802-2040

1 - OPINION AND ORDER

Case 3:10-cv-00750-BR Document 69 Filed 05/03/11 Page 2 of 16 Page ID#: 956
BEN WIZNER Nusrat Jahan Choudhury American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 519-2500
KEVIN DIAZ ACLU Foundation of Oregon P.O. Box 40585 Portland, OR 97240 (503) 227-6928
AHILAN ARULANANTHAM JENNIFER PASQUARELLA ACLU Foundation of Southern California 1313 West 8th Street Los Angeles, CA 90017 (213) 977-5211
ALAN L. SCHLOSSER JULIA HARUMI MASS ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111 (415) 621-2493
LAURA SCHAUER IVES ACLU Foundation of New Mexico P.O. Box 566 Albuquerque, NM 87103 (505) 243-0046
REEM SALAHI Salahi Law 429 Santa Monica Blvd, Suite 550 Santa Monica, CA 90401 (510) 225-8880
2 - OPINION AND ORDER

Case 3:10-cv-00750-BR Document 69 Filed 05/03/11 Page 3 of 16 Page ID#: 957
MITCHELL P. HURLEY CHRISTOPHER M. EGLESON JUSTIN H. BELL Akin Gump Strauss Hauer & Feld LLP One Bryant Park New York, NY 10036 (212) 872-1011
Attorneys for Plaintiffs
ERIC H. HOLDER, JR. United States Attorney General TONY WEST Assistant United States Attorney General SANDRA M. SCHRAIBMAN Deputy Branch Director Federal Programs Branch DIANE KELLEHER AMY POWELL United States Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20001 (202) 514-4775
Attorneys for Defendants
BROWN, Judge.
This matter comes before the Court on that part of
Defendants’ Motion (#43) to Dismiss in which Defendants seek
dismissal of this action because the Transportation Security
Administration (TSA) “is an indispensable party that cannot be
joined, and this Court lacks jurisdiction over Plaintiffs’
challenges to the DHS Trip Redress Process.”1
1 DHS TRIP stands for the Department of Homeland Security’s Traveler Redress Inquiry Program. See Scherfen v. DHS, 08-CV1554, 2010 WL 456784, at *6 (M.D. Pa. Feb. 2, 2010).
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For the reasons that follow, the Court GRANTS Defendants’ Motion.
INTRODUCTION Fifteen Plaintiffs, including United States citizens and lawful permanent residents, allege Defendant Terrorist Screening Center (TSC) placed their names on a “No Fly List,” and, thereafter, Plaintiffs were not allowed to board international flights leaving or returning to the United States and, in one case, to board a domestic flight. Despite Plaintiffs’ requests to officials and agencies for explanations as to why they were not permitted to board the flights, none has been provided and Plaintiffs do not know whether they will be permitted to fly in the future. Plaintiffs allege Defendants have violated Plaintiffs’ Fifth Amendment right to due process because Defendants have not given Plaintiffs any post-deprivation notice and hearing nor any meaningful opportunity to contest their continued inclusion on any No Fly List. Plaintiffs also assert Defendants’ actions have been arbitrary and capricious and constitute “unlawful agency action” in violation of the Administrative Procedure Act, 5 U.S.C. § 702. Plaintiffs seek a declaratory judgment and injunction “to remedy the[se] constitutional and statutory violations” and “to
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provide Plaintiffs with a legal mechanism that affords them notice of the reasons and bases for their placement on the No Fly List and a meaningful opportunity to contest their continued inclusion” on such List.
PROCEDURAL BACKGROUND On November 17, 2010, Defendants filed a Motion to Dismiss Plaintiffs’ First Amended Complaint in which Defendants raised indispensable-party and jurisdictional issues and also made an alternative Motion for Summary Judgment. As to dismissal, Defendants argued “TSA is a necessary and indispensable party which cannot be joined, and this Court lacks jurisdiction over Plaintiffs’ challenges to the DHS Trip Redress Process.” On January 21, 2011, the Court held a hearing limited to the indispensable-party and jurisdictional issues. During the hearing and before taking this part of Defendants’ Motion under advisement, the Court granted Plaintiffs leave to file a Second Amended Complaint that plainly and concisely sets forth the jurisdictional and elemental bases of Plaintiffs’ claims in light of Ibrahim v. DHS, 538 F.3d 1250 (9th Cir. 2008), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Accordingly, on February 4, 2011, Plaintiffs filed their Second Amended Complaint (#64). Defendants then gave Notice
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(#66) of Withdrawal of their alternative Motion for Summary Judgment and specifically withdrew Parts II-V of their original Memorandum (#44) of Law.
Thus, the Court now addresses as against Plaintiffs’ Second Amended Complaint only the remaining indispensable-party and jurisdictional issues raised in Defendants’ original Motion to Dismiss and developed further at oral argument and in Part I of Defendants’ original Memorandum (#44), Defendants’ Supplemental Reply Memorandum (#65), Plaintiffs’ original opposition Memorandum (#50), and Plaintiffs’ Supplemental Memorandum (#67).
PLAINTIFFS’ SECOND AMENDED COMPLAINT Plaintiffs assert two claims for relief in their Second Amended Complaint: 1. Defendants have failed to provide Plaintiffs with any post-deprivation notice and hearing in violation of Plaintiffs’ Fifth Amendment due-process rights (after allegedly placing their names on a No Fly List) and 2. Defendants’ actions have been arbitrary and capricious and constitute “unlawful agency action” in violation of the Administrative Procedure Act, 5 U.S.C. § 702. In particular, Plaintiffs allege:
Each Plaintiff has sought explanations from the Department of Homeland Security, but no government official or agency has offered any
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explanation for Plaintiffs’ apparent placement on the No Fly List or any other watch list that has prevented them from flying. Nor has any government official or agency offered any of the Plaintiffs any meaningful opportunity to contest his or her placement on such a list.
Second Am. Compl. at ¶¶ 2, 3.
The government entities and individuals involved in the creation and maintenance, support, modification, and enforcement of the No Fly List . . . have not provided travelers with a fair and effective mechanism through which they can challenge the TSC’s decision to place them on the No Fly List.
Id. at ¶ 37.
An individual who has been barred from boarding an aircraft on account of apparent placement on the No Fly list has no avenue for redress with the TSC, the government entity responsible for maintaining an individuals inclusion on, or removing an individual from, the list. The TSC does not accept redress inquiries directly from the public, nor does it directly provide final orders or disposition letters to individuals who have submitted redress inquiries.
Id. at ¶ 38.
[I]ndividuals who seek redress after being prevented from flying must complete a standard form and submit it to the Department of Homeland Security Traveler Redress Inquiry Program (“DHS TRIP”). DHS TRIP transmits traveler complaints to the TSC, which determines whether any action should be taken. The TSC has provided no publicly available information about how it makes its decision. The TSC is the final arbiter of whether an individual’s name is retained on or removed from the list.
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Id. at ¶ 39.
Once the TSC makes a final determination regarding a particular individual’s status on the watch lists, including the No Fly List, the TSC advises DHS that it has completed its process. DHS TRIP then responds to the individual with a letter that neither confirms nor denies the existence of any terrorist watch list records relating to the individual. The letters do not set forth the bases for any inclusion in a terrorist watch list, do not say how the government has resolved the complaint at issue, and do not specify whether an individual will be permitted to fly in the future.
Id. at ¶ 40.
Finally, Plaintiffs allege “each of [them] made at least one
redress request through DHS TRIP [and] received a letter as
described in paragraph 40.” Id. at ¶ 41.
By way of remedy, Plaintiffs seek a declaratory judgment
that Defendants have violated both their statutory and
constitutional rights and an injunction that
a. requires Defendants to remedy the constitutional and statutory violations identified above including the removal of Plaintiffs from any watch list or database that prevents them from flying; or
b. requires Defendants to provide Plaintiffs with a legal mechanism that affords them notice of the reasons and bases for their placement on the No Fly List and a meaningful opportunity to contest their continued inclusion on the No Fly List.
Id. at ¶ 29.
In particular, Plaintiffs seek the Court to compel through
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this action a legal mechanism other than the one now available under TSA’s DHS TRIP to have their names removed from any No Fly List.
DEFENDANTS’ MOTION TO DISMISS In their Second Amended Complaint, Plaintiffs name three officials in their official capacities as Defendants in this action: Attorney General Eric H. Holder, FBI Director Robert S. Mueller, and TSC Director Timothy J. Healy. Plaintiffs do not name the Director of the Transportation Security Administration (TSA) as a defendant, but, as noted, Defendants contend TSA is an indispensable party who cannot be joined and whose absence from this action requires its dismissal. Defendants also seek dismissal on the ground that the district court lacks subjectmatter jurisdiction over Plaintiffs’ challenges through DHS TRIP to their continued inclusion on any No Fly List.
STANDARDS I. Nonjoinder of Indispensable Party.
Federal Rule of Civil Procedure Rule 19(b) provides: “If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed.” 9 - OPINION AND ORDER

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When determining whether an absent party is indispensable within the meaning of Rule 19 and, accordingly, whether the action can proceed in that party's absence, the court must first consider whether the nonparty should be joined under Rule 19(a). E.E.O.C. v. Peabody Coal Co., 400 F.3d 774, 779 (9th Cir. 2005). If the court concludes the nonparty should be joined pursuant to Rule 19(a), the nonparty is considered a necessary party and the court must next determine whether joinder is feasible. Peabody, 400 F.3d at 779.
If joinder is not feasible, the court must determine whether the action can proceed without the absent party or whether that party is an “indispensable party.” Id. If the court concludes the absent party is indispensable but cannot be joined, the action must be dismissed. Id.
Parties are indispensable under Rule 19(b) if they “not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest or without leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience.” United States v. Bowen, 172 F.3d 682, 688 (9th Cir. 1999). II. TSA Final Orders.
A final order issued by TSA may only be challenged in United States appellate courts. 49 U.S.C. § 46110(a) states:
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[A] person disclosing a substantial interest in an order issued by the [TSA] 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. Emphasis added. A TSA “order” is a “decision which imposes an obligation, denies a right, or fixes some legal relationship.” Gilmore v. Gonzales, 435 F.3d 1125, 1133 (9th Cir. 2006)
DISCUSSION DHS TRIP is the statutory redress “process” for “individuals who believe they have been delayed or prohibited from boarding a commercial aircraft because they were wrongfully identified as a threat under the regimes utilized by the [TSA], United States Customs Service and Border Protection, or any other office or component of the Department of Homeland Security.” 49 U.S.C. § 44926(a). Because TSA administers DHS TRIP, Defendants assert TSA is an indispensable party. At the same time, Defendants maintain TSA cannot be joined in this district court action because, subject to exceptions not relevant here, TSA’s final orders pertaining to DHS TRIP are reviewable only in United States appellate courts. See 49 U.S.C. § 46110(a). Thus, Defendants argue this action must be dismissed.
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More specifically, Defendants argue “Plaintiff’s procedural due-process claim centers on the alleged inadequacies of DHS TRIP, to which they have all submitted complaints related to their denials of boarding.” Defs.’ Mem. at 16. Defendants emphasize “Plaintiffs are not challenging their purported original placement on the No Fly List” by TSC. Instead Defendants contend Plaintiffs “are challenging the validity” of the DHS TRIP procedures administered by TSA. Defs.’ Supplemental Mem. at 3 (citing comments made by counsel for Plaintiffs during oral argument). Indeed, as noted, the specific relief that Plaintiffs seek includes an injunction requiring Defendants to provide Plaintiffs with “a meaningful opportunity to contest their continued inclusion on the No Fly List.” Pls.’ Second Am. Compl. at ¶ 9. According to Defendants, however, that relief can only be obtained through DHS TRIP, which, as noted, is administered solely by TSA.
In Ibrahim the Ninth Circuit addressed similar jurisdictional issues and distinguished TSC’s role in placing names on a No Fly List from TSA’s role as administrator of challenges to any such List:
Placement of Ibrahim's name on the No-Fly List. The district court determined, based on undisputed facts, that an agency called the Terrorist Screening Center “actually compiles the list of names ultimately placed on the No-Fly List.” And the Terrorist Screening Center isn't part of the
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Transportation Security Administration or any other agency named in section 46110; it is part of the Federal Bureau of Investigation, as the government concedes. . . . 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.
Id. at 1255 (italics in original; underlining added). Thus,
as to the placement of Ibrahim’s name on a No Fly List, the
court rejected the government’s argument that the district
court was divested of jurisdiction under 49 U.S.C. § 46110(a) and
upheld the district court’s ruling that the placement of a name
on a No Fly List was not a TSA final order over which circuit
courts have exclusive subject-matter jurisdiction. In
particular, the court summarily rejected the government’s
argument that TSC’s decision to place a name on a No Fly List was
so “inescapably intertwined” with TSA’s final orders as to be
reviewable only under § 46110(a):
[T]he statute provides jurisdiction to review an “order,”- it says nothing about “intertwining,” inescapable 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.”
Id. at 1255.
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Notwithstanding its holding that Ibrahim had the right to challenge in the district court TSC’s placement of his name on a No Fly List, the Ninth Circuit rejected Ibrahim’s argument that the district court also retained jurisdiction to address TSA’s policies and procedures in implementing such List. Specifically, the court held the “Security Directive” in implementing a No Fly List was a TSA § 46110(a) order that was reviewable only in the appellate court.
After the Ninth Circuit’s decision in Ibrahim, a district court in Pennsylvania faced similar questions in Scherfen v. DHS, 08-CV-1554, 2010 WL 456784 (M.D. Pa. Feb. 2, 2010). Among other things, the plaintiffs in Scherfen sought removal of their names from a No Fly List. The district court, inter alia, held it lacked subject-matter jurisdiction to consider the case because the final DHS TRIP determination letters were final orders of TSA.
Defendants’ Motion to Dismiss in this matter requires this Court to resolve whether Plaintiffs’ claims for relief would require the Court to address TSA’s policies and procedures in implementing any No Fly List, including DHS TRIP (in which case TSA is an indispensable party and this Court lacks jurisdiction) or whether Plaintiffs’ two claims for relief are more like Ibrahim’s claims that were connected to TSC’s placement of names on any No Fly List (in which case this action may proceed without
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TSA and this Court has jurisdiction to proceed). As noted, the overarching theme throughout Plaintiffs’ Second Amended Complaint is the inadequacy of TSA’s DHS TRIP procedures to have Plaintiffs’ names removed from any No Fly List and not the placement of their names on such List, which is the only basis for district court jurisdiction recognized in Ibrahim.
The Court concludes the relief Plaintiffs seek is a matter that Congress has delegated to TSA, which is responsible for administering the DHS TRIP procedures. Thus, the Court agrees with Defendants that TSA is an indispensable party without whose presence this action cannot proceed.
The Court also concludes any “order” through DHS TRIP that might cause the names of any or all Plaintiffs to remain on or to be removed from any No Fly List would have to be issued by TSA pursuant to § 46110(a). Accordingly, this Court does not have jurisdiction to provide the relief Plaintiffs seek in their Second Amended Complaint; i.e., to require TSC to “provide [Plaintiffs] with a legal mechanism,” presumably more transparent and effective than DHS TRIP, to remove their names from any No Fly List and to require Defendants to give Plaintiffs “notice of the reasons and bases for their inclusion on the No Fly List and a meaningful opportunity to contest their continued inclusion” on
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Case 3:10-cv-00750-BR Document 69 Filed 05/03/11 Page 16 of 16 Page ID#: 970 such List. Instead the relief Plaintiffs seek can only come from the appellate court in accordance with 49 U.S.C. § 46110(a). CONCLUSION For these reasons, the Court GRANTS Defendants’ Motion (#43) to Dismiss this action for failure to join an indispensable party and for lack of subject-matter jurisdiction. IT IS SO ORDERED. DATED this 3rd day May, 2011. /s/ Anna J. Brown ANNA J. BROWN United States District Judge
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

AYMAN LATIF; MOHAMED SHEIKH



ABDIRAHMAN KARIYE; RAYMOND

EARL KNAEBLE IV; N AGIB ALI

GHALEB; SAMIR MOHAMED AHMED

MOHAMED; ABDULLATIF MUTHANNA;

SALEH A. O MAR; FAISAL NABIN

KASHEM; ELIAS MUSTAFA

MOHAMED; ABDUL HAKEIM THABET

AHMED; IBRAHEIM Y. M ASHAL;

SALAH ALI AHMED; AMIR MESHAL;

STEPHEN DURGA PERSAUD; STEVEN

 WILLIAM WASHBURN, Plaintiffs-Appellants,

v.

ERIC H. H OLDER Jr., Attorney General, in his official capacity as Attorney General of the United States; ROBERT S. M UELLER, III, in his official capacity as Director of the Federal Bureau of Investigation; TIMOTHY J. H EALY, in his official capacity as Director of the Terrorist Screening Center,
 Defendants-Appellees.

No. 11-35407
D.C. No. 3:10-cv-00750-BR
OPINION

Appeal from the United States District Court for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted May 11, 2012—Portland, Oregon
8475

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8476

LATIF v. H OLDER Filed July 26, 2012

Before: Alex Kozinski, Chief Judge, A. Wallace Tashima and Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman

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COUNSEL
Nusrat J. Choudhury (argued) and Hina Shamsi, American Civil Liberties Union Foundation, New York, New York; Kevin Diaz, ACLU Foundation of Oregon, Inc., Portland, Oregon; Julia Harumi Mass, ACLU Foundation of Northern California, San Francisco, California; Jennifer Lee Pasquarella, ACLU Foundation of Southern California, Los Angeles, California; and Steven Wilker, Tonkon Torp, LLP, Portland, Oregon, for the plaintiffs-appellants.
James Edward Cox, Jr., Assistant United States Attorney, United States Attorney’s Office for the District of Oregon, Portland, Oregon; and Joshua Paul Waldman (argued), Douglas Neal Letter, and Amy Elizabeth Powell, United States Department of Justice, Washington, DC, for the defendantsappellees.
OPINION
TALLMAN, Circuit Judge:
The Terrorist Screening Center ( “TSC”), which is administered by the Federal Bureau of Investigation ( “FBI”), main-

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

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

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

149 U.S.C. § 46110(a) provides:
[A] person disclosing a substantial interest in an order issued by the Secretary of Transportation (or the Under Secretary of Transportation for Security . . . or the Administrator of the Federal Aviation Administration . . .) in whole or in part under this part, part B, or subsection (l) or (s) of section 114 may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business.

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LATIF v. H OLDER I

A

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

2The List is a subset of a terrorist screening database maintained by TSC. To be included in the database, a nomination must (1) contain sufficient identifying data so that a person being screened can be matched to or disassociated from the record, and (2) satisfy minimum substantive derogatory criteria. Generally, nominations must be based on reasonable suspicion derived from the totality of available information that the individual is a known or suspected terrorist. Reasonable suspicion in this context requires “ ‘articulable’ facts which, taken together with rational inferences, reasonably warrant a 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. ” The List has its own minimum substantive derogatory criteria, which the government has not disclosed.
3Congress tasked TSA with establishing procedures for notifying “airport and airline security officers of the identity of individuals known to pose or suspected of posing, a risk of . . . terrorism or a threat to airline or passenger safety.” 49 U.S.C. § 114(h)(2). Through the “Secure Flight” program, aircraft operators provide TSA with data about each passenger. See 49 C.F.R. § 1560.101. TSA compares that passenger data with the List and provides the results to aircraft operators. Aircraft operators must obtain clearance from TSA before issuing a boarding pass or allowing a traveler to enter the sterile area of the airport or board an aircraft. See 49 C.F.R. § 1560.105(b).

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TSC does not accept complaints directly from travelers who believe they have been wrongly included on the List. Instead, pursuant to statutory directive, TSA has established the DHS Traveler Redress Inquiry Program ( “DHS TRIP”). See 49 U.S.C. § 44903(j)(2)(G)(i) (“[TSA] shall establish a timely and fair process for individuals identified as a threat under [the advanced airline passenger prescreening system] to appeal to [TSA] the determination and correct any erroneous information.”); § 44926(a) (“The Secretary of Homeland Security shall establish a timely and fair process for individuals who believe they have been delayed or prohibited from boarding a commercial aircraft because they were wrongly identified as a threat under the regimes utilized by [TSA]. . . .”).

DHS TRIP is essentially a clearinghouse for traveler grievances. The complainant initiates administrative review by submitting a grievance, see 49 C.F.R. § 1560.205(b), which TSA reviews. If the traveler was misidentified (i.e., the traveler is not on the List but has been misidentified as someone who is), then TSA addresses the problem by updating or correcting information in the traveler’s record or taking other appropriate action. If the traveler is an exact or near match to someone on the List, TSA forwards the grievance to TSC’s redress unit.

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

TSA sends a determination letter to the traveler when review is complete. The letter tells the traveler that review of his DHS TRIP grievance is complete, but does not confirm or

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deny whether the traveler is (or ever was) on the List or provide any assurances about future travel. In some cases, the letter informs the traveler about the availability of an administrative appeal within TSA and/or judicial review in the United States Courts of Appeals under § 46110.

B

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

After this case was initiated, Plaintiffs each received a DHS TRIP determination letter. Some letters state that “DHS has researched and completed our review of your case, ” that “we can neither confirm nor deny any information about you which may be within federal watchlists,” and that “[t]his letter constitutes our final agency decision, which is reviewable by the United States Court of Appeals under 49 U.S.C. § 46110.” The remaining letters state that “it has been determined that

4A few of the plaintiffs were allegedly stranded abroad at the time this lawsuit was originally filed, but all have now been granted “one-time waivers” to return home.

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no changes or corrections are warranted at this time, ” that “you may file a request for administrative appeal with [TSA],” and that “[t]his determination will become final 30 calendar days after you receive this letter unless you file a timely administrative appeal. Final determinations are reviewable by the United States Court of Appeals pursuant to 49 U.S.C. § 46110.” Plaintiffs have not pursued further administrative review by TSA or filed a § 46110 petition in a court of appeals.

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

II

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

A

[1] The district court has jurisdiction over Plaintiffs’ substantive challenge.5 “Section 46110 grants exclusive jurisdic-

5The operative complaint is far from a model pleading. On remand, the district court may wish to direct Plaintiffs to amend their complaint to state with greater specificity the legal basis for their substantive due process challenge to their apparent inclusion on the List.

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

B

Unlike Plaintiffs’ substantive challenge, their procedural due process challenge undoubtedly requires at least some review of TSA’s orders, namely, the policies and procedures implementing DHS TRIP. Indeed, Plaintiffs concede that “[b]ecause DHS TRIP is the process by which the government purports to offer ‘redress’ to aggrieved travelers, its structural deficiencies will be central to the resolution of Plaintiffs’ [procedural] claims. ” Consequently, the district court’s determination that TSA is a necessary party was not an abuse of discretion. The district court, however, erred in holding that joinder of TSA is infeasible in light of § 46110.

1

At the heart of this appeal is the parties’ dispute about the reach of § 46110. The government argues that we have exclu-

6With regard to the applicability of § 46110, there is no meaningful difference between the “initial placement” of a name on the List and “continued placement” or “removal.” Although the government does attempt to draw this distinction in order to distinguish this case from Ibrahim I, it concedes that TSC decides both whether travelers are placed on the List and whether they stay on it.

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sive jurisdiction because Plaintiffs’ procedural challenge requires review of TSA’s existing redress program, and § 46110 applies to judicial review of TSA’s final orders. Plaintiffs contend that § 46110 does not strip the district court of jurisdiction because, at bottom, they challenge TSC’s decision to include or retain them on the List, and TSC is not an agency listed in § 46110. We conclude that § 46110 does not apply.

[2] Section 46110 “does not grant the court of appeals direct and exclusive jurisdiction over every possible dispute ” involving TSA. Americopters, LLC v. FAA, 441 F.3d 726, 735 (9th Cir. 2006). “ ‘[T]he district court’s federal question jurisdiction is preempted by § 46110 as to those classes of claims reviewable under § 46110.’ ” Id. at 736 (alterations omitted) (quoting Mace v. Skinner , 34 F.3d 854, 859-60 (9th Cir. 1994)). The district court, therefore, may retain jurisdiction over claims challenging TSA’s orders when “§ 46110 does not explicitly allow us to hear them. ” Id. at 735.

[3] Section 46110 grants us jurisdiction only “to affirm, amend, modify, or set aside ” any part of TSA’s orders, or to order TSA to “conduct further proceedings. ” 49 U.S.C. § 46110(c). “[W]e have no jurisdiction to grant other remedies” under § 46110. Americopters, 441 F.3d at 735 (citing Mace, 34 F.3d at 858).

In several prior cases, we allowed broad constitutional claims for damages against the FAA to proceed in the district court because, under § 46110, we lack jurisdiction to grant damages. See, e.g., Crist v. Leippe, 138 F.3d 801, 802-05 (9th Cir. 1998) (holding that the district court had jurisdiction over a due process claim for damages based on the FAA’s alleged spoliation of evidence while the plaintiff ’s FAA hearing was pending); Foster v. Skinner , 70 F.3d 1084, 1086-88 (9th Cir. 1995) (holding that the district court had jurisdiction over Fifth and Sixth Amendment Bivens claims); Mace, 34 F.3d at 856-60 (same). The district court’s jurisdiction over damages

Case: 11-35407 07/26/2012 ID: 8263869 DktEntry: 32-1 Page: 11 of 14 (11 of 19)

8486

LATIF v. H OLDER

claims against § 46110 agencies (which include TSA, DHS, and the FAA, but not TSC or the FBI) is not without limits. The district court lacks jurisdiction to hear damages claims that are “ ‘inescapably intertwined with a review of the procedures and merits surrounding the [agency’s] order.’ ” Americopters, 441 F.3d at 736 (quoting Crist, 138 F.3d at 803). A damages claim, however, is not “ ‘inescapably intertwined’ ” if it “ ‘constitute[s] a broad challenge to the allegedly unconstitutional actions of the [agency],’ and is not a claim merely ‘based on the merits of [an] individual situation.’ ” Id. (footnote and citation omitted) (quoting Mace, 34 F.3d at 858-59). The “inescapably intertwined” doctrine “prevents plaintiffs from crafting constitutional tort claims either as a means of ‘relitigat[ing] the merits of the previous administrative proceedings,’ or as a way of evading entirely established administrative procedures.” Id. (citation omitted) (quoting Tur v. FAA, 104 F.3d 290, 292 (9th Cir. 1997)).

2

Plaintiffs’ procedural challenge is unlike any we have addressed in the past. So far as we can discern, all of our prior cases required review of orders issued either by an agency explicitly included in § 46110 (e.g., TSA, DHS, or the FAA) or by an agency excluded from that provision (e.g., TSC)— not orders issued by both. See, e.g., Ibrahim I , 538 F.3d at 1254-57 (addressing separately challenges to TSC’s decision to include the plaintiff on the List and challenges to TSA airport security policies); Gilmore v. Gonzales , 435 F.3d 1125, 1131-34 (9th Cir. 2006) (reviewing a TSA Security Directive); Crist, 138 F.3d at 802-05 (addressing challenges to FAA orders); Foster, 70 F.3d at 1086-88 (same); Mace, 34 F.3d at 856 (same).

[4] Plaintiffs’ procedural challenge requires judicial review of orders issued both by TSA, which is named in § 46110, and by TSC, which is not. TSA’s implementation of DHS TRIP is at issue, but TSA is merely a conduit for a traveler’s chal-

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LATIF v. H OLDER

8487

lenge to inclusion on the List. TSA simply passes grievances along to TSC and informs travelers when TSC has made a final determination. TSC—not TSA—actually reviews the classified intelligence information about travelers and decides whether to remove them from the List. And it is TSC—not TSA—that established the policies governing that stage of the redress process.

[5] If Plaintiffs are entitled to judicial relief, any remedy must involve both TSA and TSC. Here, Plaintiffs demand to know why they are apparently included on the List and an opportunity to advocate for their removal. Ordering TSA to tell Plaintiffs why they were included on the List and to consider their responses in deciding whether they should remain on it, would be futile. Such relief must come from TSC—the sole entity with both the classified intelligence information Plaintiffs want and the authority to remove them from the List. Thus, because we would not be able to provide relief by simply amending, modifying, or setting aside TSA’s orders or by directing TSA to conduct further proceedings, we lack jurisdiction under § 46110 to address Plaintiffs’ procedural challenge.

3

Having concluded that we lack jurisdiction under § 46110, we must now consider whether the district court has jurisdiction to hear Plaintiffs’ procedural challenge. “ ‘[W]here Congress intends to preclude judicial review of constitutional claims, its intent to do so must be clear.’ ” Elgin v. Dep’t of the Treasury, 132 S. Ct. 2126, 2132 (2012) (alterations omitted) (quoting Webster v. Doe, 486 U.S. 592, 603 (1988)). But “where Congress simply channels judicial review of a constitutional claim to a particular court, ” we ask “only whether Congress’ intent to preclude district court jurisdiction was ‘fairly discernible in the statutory scheme.’ ” Id. (quoting Block v. Cmty. Nutrition Inst. , 467 U.S. 340, 351 (1984)).

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8488

LATIF v. H OLDER

[6] Here, we need not determine which standard applies because it is neither clear nor fairly discernible from the statutory scheme that Congress intended to strip the district court of jurisdiction over Plaintiffs’ constitutional claim. Section 46110 does not apply to TSC. And we have consistently held that § 46110 is not an absolute bar to district court review of TSA’s orders. See, e.g., Crist, 138 F.3d at 804-05; Foster, 70 F.3d at 1088; Mace, 34 F.3d at 860.

The considerations that have led us to limit a district court’s jurisdiction to review claims against § 46110 agencies do not apply here. See Americopters, 441 F.3d at 736 (explaining that a claim for damages against a § 46110 agency is barred where it is merely “a way of evading entirely established administrative procedures” or an effort to relitigate the merits of a previous administrative proceeding). Our lack of jurisdiction under § 46110 to grant relief is not the result of artful pleading or any deliberate attempt by Plaintiffs to evade § 46110. Rather, it arises from the unique relationship between TSA and TSC in processing traveler grievances to determine who should remain on the List.

[7] Plaintiffs raise broad constitutional claims that do not require review of the merits of their individual DHS TRIP grievances.7 DHS TRIP does not appear to provide any mechanism for Plaintiffs to challenge the adequacy of the process itself, and the record does not reveal whether their procedural challenge has been reviewed on the merits in any prior administrative proceeding. Accordingly, we also remand Plaintiffs’ procedural challenge to the district court for such further proceedings as may be required to make an adequate record to support consideration of their claims.

7We do not address whether Plaintiffs’ failure to pursue their DHS TRIP grievances precludes judicial review of their claims because the parties have not briefed this issue, nor has the district court had an opportunity to consider it.

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LATIF v. H OLDER III

8489

[8] At oral argument, the government was stymied by what we considered a relatively straightforward question: what should United States citizens and legal permanent residents do if they believe they have been wrongly included on the NoFly List? In Ibrahim I, we held that district courts have original jurisdiction over travelers’ substantive challenges to inclusion on the List. Today, we take another step toward providing an answer. We hold that the district court also has original jurisdiction over Plaintiffs’ claim that the government failed to afford them an adequate opportunity to contest their apparent inclusion on the List. We leave it to the district court to determine whether to require joinder of TSA on remand. We hold only that § 46110 presents no barrier to adding TSA as an indispensable party. We also leave to the sound judgment of the district court how to handle discovery of what may be sensitive intelligence information. See Classified Information Procedures Act, 18 U.S.C. app. 3 §§ 1-16.

REVERSED and REMANDED.

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United States Court of Appeals for the Ninth Circuit

Office of the Clerk 95 Seventh Street San Francisco, CA 94103

Information Regarding Judgment and Post-Judgment Proceedings

Judgment • This Court has filed and entered the attached judgment in your case. Fed. R. App. P. 36. Please note the filed date on the attached decision because all of the dates described below run from that date, not from the date you receive this notice.

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(1) A. •
•

Purpose (Panel Rehearing): A party should seek panel rehearing only if one or more of the following grounds exist: ► A material point of fact or law was overlooked in the decision; ► A change in the law occurred after the case was submitted which
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Post Judgment Form - Rev. 12/2009

1

Case: 11-35407 07/26/2012 ID: 8263869 DktEntry: 32-2 Page: 2 of 5 (16 of 19)
► Consideration by the full Court is necessary to secure or maintain uniformity of the Court’s decisions; or
► The proceeding involves a question of exceptional importance; or ► The opinion directly conflicts with an existing opinion by another
court of appeals or the Supreme Court and substantially affects a rule of national application in which there is an overriding need for national uniformity.
(2) Deadlines for Filing: • A petition for rehearing may be filed within 14 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the United States or an agency or officer thereof is a party in a civil case, the time for filing a petition for rehearing is 45 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the mandate has issued, the petition for rehearing should be accompanied by a motion to recall the mandate. • See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the due date). • An order to publish a previously unpublished memorandum disposition extends the time to file a petition for rehearing to 14 days after the date of the order of publication or, in all civil cases in which the United States or an agency or officer thereof is a party, 45 days after the date of the order of publication. 9th Cir. R. 40-2.
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Post Judgment Form - Rev. 12/2009

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Case: 11-35407 07/26/2012 ID: 8263869 DktEntry: 32-2 Page: 3 of 5 (17 of 19)
• The petition or answer must be accompanied by a Certificate of Compliance found at Form 11, available on our website at www.ca9.uscourts.gov under Forms.
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Post Judgment Form - Rev. 12/2009

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Case: 11-35407 07/26/2012 ID: 8263869 DktEntry: 32-2 Page: 4 of 5 (18 of 19) Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)

United States Court of Appeals for the Ninth Circuit

BILL OF COSTS

Note:

If you wish to file a bill of costs, it MUST be submitted on this form and filed, with the clerk, with proof of service, within 14 days of the date of entry of judgment, and in accordance with 9th Circuit Rule 39-1. A late bill of costs must be accompanied by a motion showing good cause. Please refer to FRAP 39, 28 U.S.C. § 1920, and 9th Circuit Rule 39-1 when preparing your bill of costs.

v.

9th Cir. No.

The Clerk is requested to tax the following costs against:

Cost Taxable under FRAP 39, 28 U.S.C. § 1920, 9th Cir. R. 39-1
Excerpt of Record Opening Brief Answering Brief

REQUESTED Each Column Must Be Completed

ALLOWED To Be Completed by the Clerk

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

Reply Brief

$

$

$

$

Other**

$

$

$

$

TOTAL: $

TOTAL: $

* Costs per page may not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1.
** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be considered.

Attorneys' fees cannot be requested on this form.

Continue to next page.

Case: 11-35407 07/26/2012 ID: 8263869 DktEntry: 32-2 Page: 5 of 5 Form 10. Bill of Costs - Continued

(19 of 19)

I,

, swear under penalty of perjury that the services for which costs are taxed

were actually and necessarily performed, and that the requested costs were actually expended as listed.

Signature ("s/" plus attorney's name if submitted electronically) Date
Name of Counsel:

Attorney for:

(To Be Completed by the Clerk) Date

Costs are taxed in the amount of $ Clerk of Court By:

, Deputy Clerk

 
 Case 3:10-cv-00750-BR Document 83 Filed 01/11/13 Page 1 of 30 Page ID#: 1014
Steven M. Wilker, OSB No. 911882 Email: steven.wilker@tonkon.com Tonkon Torp LLP 1600 Pioneer Tower 888 SW 5th Avenue Portland, OR 97204 Tel.: (503) 802-2040; Fax: (503) 972-3740 Cooperating Attorney for the ACLU Foundation of Oregon
Hina Shamsi (Admitted pro hac vice) Email: hshamsi@aclu.org Nusrat Jahan Choudhury (Admitted pro hac vice) Email: nchoudhury@aclu.org American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel.: (212) 519-2500; Fax: (212) 549-2654
Kevin Díaz, OSB No. 970480 Email: kdiaz@aclu-or.org ACLU Foundation of Oregon P.O. Box 40585 Portland, OR 97240 Tel.: (503) 227-6928; Fax: (503) 227-6948
Ahilan T. Arulanantham (Admitted pro hac vice) Email: aarulanantham@aclu-sc.org Jennifer Pasquarella (Admitted pro hac vice) Email: jpasquarella@aclu-sc.org ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 Tel.: (213) 977-9500; Fax: (213) 977-5297
Alan L. Schlosser (Admitted pro hac vice) Email: aschlosser@aclunc.org Julia Harumi Mass (Admitted pro hac vice) Email: jmass@aclunc.org ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111 Tel.: (415) 621-2493; Fax: (415) 255-8437
Laura Schauer Ives (Admitted pro hac vice) Email: lives@aclu-nm.org ACLU Foundation of New Mexico
1 – THIRD AMENDED COMPLAINT

Case 3:10-cv-00750-BR Document 83 Filed 01/11/13 Page 2 of 30 Page ID#: 1015
P.O. Box 566 Albuquerque, NM 87103 Tel.: (505) 243-0046; Fax: (505) 266-5916 Mitchell P. Hurley (Admitted pro hac vice) Email: mhurley@akingump.com Christopher M. Egleson (Admitted pro hac vice) Email: cegleson@akingump.com Justin H. Bell (Admitted pro hac vice) Email: bellj@akingump.com Akin Gump Strauss Hauer & Feld LLP One Bryant Park New York, NY 10036 Tel.: (212) 872-1011; Fax: (212) 872-1002
Attorneys for Plaintiffs
2 – THIRD AMENDED COMPLAINT

Case 3:10-cv-00750-BR Document 83 Filed 01/11/13 Page 3 of 30 Page ID#: 1016

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

AYMAN LATIF, MOHAMED SHEIKH

ABDIRAHMAN KARIYE, RAYMOND EARL

KNAEBLE IV, FAISAL NABIN KASHEM, ELIAS

MUSTAFA MOHAMED, STEVEN WILLIAM

WASHBURN, ABDULLATIF MUTHANNA,

NAGIB ALI GHALEB, MASHAAL RANA,

No. 10-cv-750 (BR)

IBRAHEIM Y. MASHAL, SALAH ALI AHMED,

AMIR MESHAL, and STEPHEN DURGA

THIRD AMENDED AND

PERSAUD,

SUPPLEMENTAL

COMPLAINT FOR

Plaintiffs,

INJUNCTIVE AND

DECLARATORY RELIEF

v.

(Violation of Fifth

ERIC H. HOLDER, JR., in his official capacity as Amendment Rights and the

Attorney General of the United States; ROBERT S. Administrative Procedure Act)

MUELLER, III, in his official capacity as Director of

the Federal Bureau of Investigation; and TIMOTHY J.

HEALY, in his official capacity as Director of the

Terrorist Screening Center,

Defendants.

INTRODUCTION 1. The United States’ system of screening commercial airline passengers against databases of suspected terrorists is broken. Thousands of people have been barred altogether from commercial air travel without any opportunity to confront or rebut the basis for their inclusion, or apparent inclusion, on a government watch list known as the “No Fly List.” The result is a vast and growing list of individuals whom, on the basis of error or innuendo, the government deems too dangerous to fly, but too harmless to arrest. Many of these individuals,
3 – THIRD AMENDED COMPLAINT

Case 3:10-cv-00750-BR Document 83 Filed 01/11/13 Page 4 of 30 Page ID#: 1017
like the Plaintiffs in this action, are citizens and lawful permanent residents of the United States; some, including four Plaintiffs in this action, are veterans of the United States Armed Forces. Some U.S. citizens and lawful permanent residents were placed on the list while traveling abroad and found themselves stranded in foreign countries, without explanation or appropriate visas, unable to return home to their families, jobs, and needed medical care in the United States. The Constitution does not permit such a fundamental deprivation of rights to be carried out under a veil of secrecy and in the absence of even rudimentary process.
2. Plaintiffs are U.S. citizens and lawful permanent residents of the United States who were denied boarding on flights to or from the United States, or over U.S. airspace.
3. Plaintiffs believe that they are on the No Fly List. Agents of the Federal Bureau of Investigation, other U.S. officials, and local law enforcement officers have told many of the Plaintiffs that they are on the No Fly List. Plaintiffs pose no threat to aviation security and do not know why they are on the No Fly List or how they can get off it. Before they were placed on the No Fly List, Plaintiffs had flown numerous times to, from, and within the United States in recent years without incident.
4. Plaintiffs have submitted applications for “redress” through the only available government mechanism, to no avail. Each Plaintiff has sought explanations from the Department of Homeland Security, but no government official or agency has offered any explanation for Plaintiffs’ apparent placement on the No Fly List or any other watch list that has prevented them from flying. Nor has any government official or agency offered any of the Plaintiffs any meaningful opportunity to contest his or her placement on such a list.
5. Through this action for declaratory and injunctive relief, Plaintiffs seek a fair hearing in which they can confront any evidence against them and contest their unlawful
4 – THIRD AMENDED COMPLAINT

Case 3:10-cv-00750-BR Document 83 Filed 01/11/13 Page 5 of 30 Page ID#: 1018
designation. Plaintiffs also seek the removal of their names from any government watch list or database that has prevented them from flying.
PARTIES 6. Plaintiff Ayman Latif is a thirty-five-year-old U.S. citizen and disabled veteran of the U.S. Marine Corps. He was born and raised in Miami, Florida, and currently resides in Stone Mountain, Georgia with his wife and two children. 7. Plaintiff Mohamed Sheikh Abdirahman Kariye is a fifty-one-year-old U.S. citizen and resident of Portland, Oregon. He is the Imam at the Masjid As-Saber in Portland. 8. Plaintiff Raymond Earl Knaeble IV is a thirty-two-year-old U.S. citizen and U.S. Army veteran. He was born and raised in California and currently resides in Chicago, Illinois, where he works as a truck driver. 9. Plaintiff Faisal Nabin Kashem is a twenty-five-year-old citizen of the United States and a resident of Connecticut. He is a university student. 10. Plaintiff Elias Mustafa Mohamed is a twenty-three-year-old citizen of the United States and a resident of Seattle, Washington. He is a university student. 11. Plaintiff Steven William Washburn is a fifty-seven-year-old U.S. citizen and U.S. Air Force veteran. Mr. Washburn was born and raised in Las Cruces, New Mexico, where he currently resides. 12. Plaintiff Nagib Ali Ghaleb is a thirty-four-year-old U.S. citizen and resident of San Francisco, California. 13. Plaintiff Abdullatif Muthanna is a thirty-year-old U.S. citizen and a resident of Rochester, New York.
5 – THIRD AMENDED COMPLAINT

Case 3:10-cv-00750-BR Document 83 Filed 01/11/13 Page 6 of 30 Page ID#: 1019
14. Plaintiff Mashaal Rana is a twenty-six-year-old U.S. citizen and a resident of New York. She was born and raised in New York and is a housewife.
15. Plaintiff Ibraheim (Abe) Y. Mashal is a thirty-three-year-old U.S. citizen and veteran of the U.S. Marine Corps. He was born and raised in the United States, resides with his wife and three children in St. Charles, Illinois, and works as a traveling dog trainer.
16. Plaintiff Salah Ali Ahmed is a sixty-year-old U.S. citizen and resident of Norcross, Georgia, where he works as an electrical technician.
17. Plaintiff Amir Meshal is a thirty-year-old U.S. citizen and resident of Minnesota, where he works as a bus driver.
18. Plaintiff Stephen Durga Persaud is a thirty-two-year-old U.S. citizen. He is a registered nurse and resident of Irvine, California, where he lives with his wife and two children.
19. Defendant Eric H. Holder, Jr. is the Attorney General of the United States and heads the Department of Justice (“DOJ”), a department of the United States government that oversees the Federal Bureau of Investigation (“FBI”). The FBI in turn administers the Terrorist Screening Center (“TSC”), which was created to consolidate the government’s approach to terrorism screening. The TSC develops and maintains the federal government’s consolidated Terrorist Screening Database (the “watch list”), of which the No Fly List is a component. Defendant Holder is sued in his official capacity.
20. Defendant Robert S. Mueller is the Director of the FBI, which administers the TSC. Defendant Mueller is sued in his official capacity.
21. Defendant Timothy J. Healy is the Director of the TSC and is sued in his official capacity.
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Case 3:10-cv-00750-BR Document 83 Filed 01/11/13 Page 7 of 30 Page ID#: 1020
JURISDICTION AND VENUE 22. This is a complaint for injunctive and declaratory relief based upon civil rights violations committed by the Terrorist Screening Center, Federal Bureau of Investigation, and U.S. Department of Justice in violation of the Fifth Amendment to the U.S. Constitution and the Administrative Procedure Act (“APA”). 23. This Court has subject matter jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 702, which waives the sovereign immunity of the United States with respect to any action for injunctive relief under 28 U.S.C. § 1331. 24. This Court has the authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. 25. Under the APA, 5 U.S.C. § 706, this Court has the power to compel agency action unlawfully withheld or unreasonably delayed and to hold unlawful and set aside the challenged agency actions. The Due Process Clause itself also provides this Court with authority to order the injunctive relief requested against Defendants. 26. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) because Defendants are officers of agencies of the United States sued in their official capacity and because this judicial district is where Plaintiff Mohamed Sheikh Abdirahman Kariye resides and where a substantial part of the events or omissions giving rise to the claim occurred.
FACTUAL ALLEGATIONS A. The Federal Government’s Terrorist Watch List 27. In September 2003, Attorney General John Ashcroft established the Terrorist Screening Center to consolidate the government’s approach to terrorism screening. The TSC,
7 – THIRD AMENDED COMPLAINT

Case 3:10-cv-00750-BR Document 83 Filed 01/11/13 Page 8 of 30 Page ID#: 1021
which is administered by the FBI, develops and maintains the federal government’s consolidated Terrorist Screening Database (the “watch list”). TSC’s consolidated watch list is the federal government’s master repository for suspected international and domestic terrorist records used for watch list-related screening.
28. The TSC sends records from its terrorist watch list to other government agencies, which in turn use those records to identify suspected terrorists. For example, applicable TSC records are provided to the Transportation Security Administration (“TSA”) for use by airlines in pre-screening passengers and to U.S. Customs and Border Protection (“CBP”) for use in screening travelers entering the United States. Front-line agencies, like the TSA and CBP, carry out the screening function by conducting a name-based search of an individual to determine whether he or she has been placed on a watch list by the TSC.
29. Although the TSA, CBP, and other agencies may use the records provided by the TSC, it is the TSC that maintains and controls the database of suspected terrorists.
30. Two government entities are primarily responsible for “nominating” individuals for inclusion in the terrorist watch list—the National Counterterrorism Center (“NCTC”) and the FBI. The TSC makes the final decision on whether a nominated individual meets the minimum requirements for inclusion into the watch list as a “known or suspected terrorist” and which screening systems will receive the information about that individual.
31. The TSC determines whether a nominated individual is “reasonably suspected” of having possible links to terrorism. According to the TSC, “reasonable suspicion requires 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.”
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32. Defendants have not stated publicly what standards or criteria are applied to determine whether an individual on the consolidated watch list will be placed on the No Fly List that is distributed to the TSA.
33. A 2007 Government Accountability Office (“GAO”) report found that the TSC rejects approximately one percent of nominations to the watch list.
34. In response to intelligence failures that permitted Nigerian citizen Umar Farouk Abdulmutallab, a would-be bomber, to fly from Amsterdam to Detroit on December 25, 2009, the Defendants have dramatically expanded the watch list as a whole and the No Fly List in particular.
B. Inadequacy of Redress Process 35. The government entities and individuals involved in the creation, maintenance, support, modification, and enforcement of the No Fly List, including Defendants, have not provided travelers with a fair and effective mechanism through which they can challenge the TSC’s decision to place them on the No Fly List. 36. An individual who has been barred from boarding an aircraft due to apparent placement on the No Fly List has no avenue for redress with the TSC, the government entity responsible for maintaining an individual’s inclusion on, or removing an individual from, the list. The TSC does not accept redress inquiries directly from the public, nor does it directly provide final orders or disposition letters to individuals who have submitted redress inquiries. 37. Rather, individuals who seek redress after being prevented from flying must complete a standard form and submit it to the Department of Homeland Security Traveler Redress Inquiry Program (“DHS TRIP”). DHS TRIP transmits traveler complaints to the TSC, which determines whether any action should be taken. The TSC has provided no publicly
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available information about how it makes that decision. The TSC is the final arbiter of whether an individual’s name is retained on or removed from the list.
38. Once the TSC makes a final determination regarding a particular individual’s status on the watch lists, including the No Fly List, the TSC advises DHS that it has completed its process. DHS TRIP then responds to the individual with a letter that neither confirms nor denies the existence of any terrorist watch list records relating to the individual. The letters do not set forth any basis for inclusion in a terrorist watch list, do not state how the government has resolved the complaint at issue, and do not specify whether an individual will be permitted to fly in the future. Thus, the only “process” available to individuals who are prevented from boarding commercial flights is to submit their names and other identifying information to a government entity that has no authority to provide redress and to hope that an unspecified government agency corrects an error or changes its mind.
39. As alleged below, each of the Plaintiffs made at least one redress request through DHS TRIP. Each Plaintiff received a letter as described in paragraph 38 above.
C. Plaintiffs’ Allegations Ayman Latif 40. Plaintiff Ayman Latif moved with his wife and family to Egypt in November 2008 so that he could study Arabic. 41. Mr. Latif and his wife purchased tickets to fly with their children from Cairo, Egypt to Miami, Florida in April 2010 to visit relatives, including his mother, who was elderly and very ill. 42. On April 13, 2010, Mr. Latif and his family were denied boarding on their flight to Miami at the Cairo International Airport on instruction from the U.S. Embassy.
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43. About one month later, Mr. Latif was questioned on two consecutive days by two FBI agents, one of whom told Mr. Latif that he was on the No Fly List.
44. In or around the middle of May 2010, Mr. Latif learned from family in Florida that the U.S. Department of Veterans Affairs (“VA”) had written to advise him that his serviceconnected disability benefits would be reduced from $899.00 to $293.00.
45. Mr. Latif called the VA and was told that he had been scheduled to attend a Disability Evaluation on April 15, 2010, which he had missed. Because he had been denied boarding on his April 13, 2010 flight, Mr. Latif was not in Florida on April 15, 2010 and could not have attended the evaluation.
46. Mr. Latif was unable to reschedule his Disability Evaluation because he was unable to fly from Egypt to the United States due to his placement on the No Fly List.
47. Mr. Latif received a July 27, 2010 letter from the Disabled American Veterans National Service Office stating that his disability benefits would be cut to zero, effective October 1, 2010.
48. Mr. Latif’s monthly disability benefit was subsequently reduced. Raymond Earl Knaeble IV 49. Plaintiff Raymond Earl Knaeble IV moved to Kuwait in 2006 to work for ITT Systems Corporation (“ITT Systems”), a multinational company specializing in global defense and security. 50. On March 1, 2010, ITT Systems offered Mr. Knaeble a position in Qatar. The effective date of employment was contingent upon Mr. Knaeble’s passage of a pre-employment medical exam that was to be scheduled within days of acceptance of the offer. ITT Systems
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indicated that a medical exam administered in the United States would be processed more quickly than one administered in a foreign country.
51. Mr. Knaeble accepted the ITT Systems position and scheduled his physical examination to take place in Killeen, Texas on March 16, 2010. Prior to moving to Qatar to start his new job, Mr. Knaeble planned to travel to Bogota, Colombia so that he could marry his fiancé, a Colombian citizen, and spend some time with her family and his relatives. He also planned to visit his daughter in Texas and his mother and sisters in California while in the United States following his scheduled medical examination and before moving to Qatar with his new wife.
52. Mr. Knaeble booked airline tickets to travel from Kuwait to Bogota and then from Bogota to the United States.
53. On March 10 and 11, 2010, Mr. Knaeble flew from Kuwait to Bogota without incident. On March 14, 2010, however, Mr. Knaeble was denied boarding on his flight to the United States at Aeropuerto Internacional El Dorado in Bogota. An airline official told him that no airline would permit him to board a U.S.-bound flight. He was instructed to contact the U.S. Embassy in Bogota.
54. Mr. Knaeble subsequently met with and was questioned by two FBI agents at the U.S. Embassy. Despite Mr. Knaeble’s repeated questions, neither agent told him why he had been placed on the No Fly List or why they were questioning him.
55. On April 13, 2010, Mr. Knaeble received a letter from ITT Systems indicating that because he had not taken the required physical exam in Killeen as planned, the firm had withdrawn the offer for a position in Qatar.
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56. Mr. Knaeble tried to find an alternative way to return to the United States. On May 11, 2010, he purchased a ticket to fly from Santa Marta to Nuevo Laredo, Mexico, with stops in Bogota and Mexico City. He hoped to enter the United States over land by crossing the border between Nuevo Laredo and Laredo, Texas.
57. When Mr. Knaeble landed in Mexico City the following day, Mexican government agents met him at the gate of the plane, questioned him, detained him for fifteen hours, and refused to allow him to board his flight to Nuevo Laredo or to travel by bus or any other means to the U.S.-Mexico border. The agents placed Mr. Knaeble on a flight back to Bogota the following day. Mr. Knaeble was unauthorized to work in Colombia and unable to secure paid employment.
58. Mr. Knaeble ultimately returned to the United States in August 2010 by traveling for twelve days, mostly over land, from Santa Marta, Colombia to Mexicali, California. During the journey, foreign authorities interrogated, detained, and searched him.
Faisal Nabin Kashem 59. Plaintiff Faisal Nabin Kashem graduated from the University of Connecticut in 2005 with a degree in accounting. He worked for some time for a Connecticut-based consulting firm. 60. In January 2010, Mr. Kashem enrolled in a fully-funded two-year Arabic language certificate program at the Islamic University of Al-Madinah Al-Munawwarah in Medina, Saudi Arabia. He planned to complete the program and subsequently enroll in a fouryear Islamic Studies degree program at the university. 61. On or around January 7, 2010, Mr. Kashem flew without incident from New York to Medina and commenced his studies.
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62. Mr. Kashem planned to return home to Connecticut for his summer vacation from June to August 2010. On June 23, 2010, Mr. Kashem flew without incident from Medina to Jeddah, Saudi Arabia, but was denied boarding on his flight from Jeddah to New York. An airline employee told him that he was on the No Fly List and that the United States had barred him from flying.
63. Mr. Kashem was subsequently questioned by FBI agents who informed him that he would not be permitted to fly to the United States.
Elias Mustafa Mohamed 64. Plaintiff Elias Mustafa Mohamed has lived in Seattle with his family since the age of six. Mr. Mohamed’s parents, stepfather, and seven siblings are all U.S. citizens and live in the United States. 65. In 2008, Mr. Mohamed was granted admission to the two-year Arabic language certificate program at the Islamic University of Al-Madinah Al-Munawwarah in Medina. 66. In January 2010, Mr. Mohamed flew without incident from Washington, D.C. to Medina and began his studies. 67. Mr. Mohamed planned to return home to Seattle for his summer vacation from June to August 2010. On June 25, 2010, he flew from Medina to Jeddah without incident, but was denied boarding on his flight from Jeddah to New York. An airline employee told him that he was not permitted to fly. 68. On July 6, 2010, Mr. Mohamed was questioned by two FBI agents who confirmed that he was on the No Fly List.
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Steven William Washburn 69. Plaintiff Steven William Washburn is a U.S. citizen and veteran of the U.S. Air Force. In August 2008, Mr. Washburn and his wife moved to Riyadh, Saudi Arabia so that he could work for a technology company. After one and a half years there, they decided to move back to the United States. 70. Mr. Washburn and his wife purchased airline tickets to travel from Riyadh to Las Cruces, New Mexico, where Mr. Washburn’s parents live. They planned to spend a one-week layover in Ireland with Mr. Washburn’s step-daughter, who was pregnant at the time. 71. Mr. Washburn and his wife flew from Riyadh to Dublin without incident. On February 5, 2010, Mr. Washburn attempted to check in for his flight from Shannon Airport Ireland to Boston. An airline employee denied him a boarding pass and informed Mr. Washburn that he was on the No Fly List. 72. Mr. Washburn purchased a new set of airline tickets to travel from Dublin to Ciudad Juarez, Mexico, with changes of aircraft in London and Mexico City. He planned to enter the United States by walking over a bridge located at the border between Ciudad Juarez and El Paso, Texas. 73. On February 12, 2010, Mr. Washburn flew from Dublin to London without incident. He was permitted to board his flight from London to Mexico City. Approximately three and a half hours after the plane took off, however, the aircraft turned around and flew back to London. 74. Upon information and belief, Mr. Washburn’s flight returned to London because, after he had boarded the flight, U.S. officials instructed airline officials not to fly over U.S. airspace with Mr. Washburn on board due to his placement on the No Fly List.
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75. When Mr. Washburn’s flight landed in London, airport security and New Scotland Yard officials met him at the gate of the plane, detained and interrogated him for more than nine hours, photographed and fingerprinted him, subjected him to a DNA test, and seized the life savings that Mr. Washburn carried with him. New Scotland Yard officials escorted Mr. Washburn to another aircraft, which took him back to Ireland.
76. Mr. Washburn ultimately returned to the United States in May 2010 by flying from Dublin to Ciudad Juarez, with stops in Germany, Brazil, Peru, and Mexico City, and by then crossing the land border between Ciudad Juarez and El Paso. During this journey, foreign authorities detained and questioned him.
Abdullatif Muthanna 77. Plaintiff Abdullatif Muthanna was born in Yemen and moved to the United States in 1996 to join his mother and stepfather. 78. Mr. Muthanna is a naturalized U.S. citizen and works in Rochester to support his wife and four children, who live in southern Yemen. He travels to Yemen every few years to spend time with his family. 79. Mr. Muthanna also remains in the United States apart from his family in order to receive medical care for serious medical conditions. Mr. Muthanna suffers from and receives treatment for digestive diseases and mental health conditions. His doctors, including his primary care physician, internist, and gastroenterologist, are all located in New York. 80. On June 18, 2009, Mr. Muthanna flew from Rochester to Yemen without incident in order to visit his wife and children. He planned to return to the United States by flying from Aden to New York via Jeddah.
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81. On May 31, 2010, Mr. Muthanna flew from Aden to Jeddah without incident. On June 3, he went to the airport for his flight to New York. Mr. Muthanna attempted to check in, but was told by an airline employee that he was not permitted to fly to the United States. A Saudi immigration official confirmed that he was prohibited from boarding his flight.
82. Mr. Muthanna flew back to Yemen. An official at the U.S. Embassy in Sana’a told him that he was on a U.S. government list of people who were not permitted to fly.
83. On September 29, 2010, Mr. Muthanna ultimately returned home to Rochester through what is understood to be a “one-time” waiver from U.S. authorities to fly to the United States. In Rochester, Mr. Muthanna received needed medical care, and worked in a clothing store and in wholesale to support his family. After being separated from his wife and children for more than one year, however, Mr. Muthanna missed his family and sought to fly to Yemen to visit them.
84. On June 18, 2012, Mr. Muthanna attempted to check in for his flight from New York to Abu Dhabi. He was denied a boarding pass.
85. Distraught by his separation from his family, Mr. Muthanna sought to travel from New York to Yemen by boat and over land. He booked a thirty-six-day long passage by cargo freighter from Philadelphia to Jebel Ali, United Arab Emirates via Antwerp, Belgium. He hoped to travel from Jebel Ali to Yemen by car or bus.
86. Mr. Muthanna traveled from Rochester to Philadelphia by car. On August 12, 2012, after Mr. Muthanna had boarded the cargo freighter in the Philadelphia port, the captain denied him passage. The captain informed Mr. Muthanna that his decision was based on the recommendation of U.S. Customs and Border Protection, and that Mr. Muthanna would be denied passage on the freighter sailing from Antwerp to Jebel Ali for the same reason. Upon
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information and belief, CBP recommended that Mr. Muthanna be denied passage on these ships because his name is on the No Fly List.
87. Mr. Muthanna has found no way to travel from the United States to Yemen without flying from the United States or over U.S. airspace, or sailing from a U.S. port.
88. Mr. Muthanna submitted a DHS TRIP complaint concerning his denial of passage on the ship and was assigned a Redress Control Number. DHS TRIP has not issued him a determination letter regarding this complaint.
Nagib Ali Ghaleb 89. Plaintiff Nagib Ali Ghaleb moved to the United States from Yemen in 1996 and is a naturalized U.S. citizen. He works in San Francisco as a janitor. 90. Mr. Ghaleb’s wife and four children, one of whom is a U.S. citizen, live in Yemen. Mr. Ghaleb flew from California to Yemen in August 2009 to visit his family and to meet with the U.S. consul there in hopes of finding out the reason for the delay in processing his wife’s and children’s visa applications. Mr. Ghaleb planned to fly home to San Francisco in February 2010 so that he could resume his work. 91. On February 16, 2010, Mr. Ghaleb flew from Sana’a to Frankfurt without incident. At Frankfurt Airport, Mr. Ghaleb was denied boarding on his flight to San Francisco. Two U.S. officials who, upon information and belief, were FBI agents met Mr. Ghaleb at the check-in counter and told him that he would not be permitted to fly to the United States. 92. Mr. Ghaleb flew back to Sana’a. An official at the U.S. Embassy in Sana’a told him that he was not permitted to board flights to the United States. 93. Mr. Ghaleb was subsequently questioned at the U.S. Embassy by two officials, one of whom, upon information and belief, was an FBI agent. The interrogators knew details
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about Mr. Ghaleb’s life, including the names of mosques he attended in the Bay Area, that he was a highly regarded soccer player and was well-known in the Bay Area Yemeni community, and that he had been trying for a long time to bring his family to the United States. The interrogators offered to arrange for Mr. Ghaleb to fly back to the United States immediately if he would agree to tell them who the “bad guys” were in Yemen and in San Francisco. The interrogators insisted that Mr. Ghaleb could provide the names of people from his mosque and his community. When Mr. Ghaleb told the interrogators that he was not interested in spying on the Yemeni community, they told Mr. Ghaleb that if he did not cooperate, they would have him arrested and jailed in Yemen. They advised him to “think about it.”
94. On May 3, 2010, Mr. Ghaleb again attempted to fly home to San Francisco. He flew without incident from Sana’a to Dubai. In Dubai, he was denied boarding on his flight to San Francisco. Dubai police told Mr. Ghaleb that he was on the No Fly List.
Mashaal Rana 95. Plaintiff Mashaal Rana was born and raised in New York. Her parents and three brothers are all U.S. citizens and live in New York. 96. In 2008, Ms. Rana graduated from Hunter College with a degree in community health medicine. She sought to pursue a master’s degree in Islamic Studies and enrolled in the International Islamic University of Islamabad, which was located near her extended family in Pakistan. 97. In January 2009, Ms. Rana flew to Pakistan. After attending the International Islamic University for several months, she decided to return home to the United States. Ms. Rana purchased tickets to fly from Lahore, Pakistan to New York via Manchester, United Kingdom.
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98. On February 17, 2010, Ms. Rana went to the Lahore airport with her parents. Moments before the family reached the ticketing counter, Ms. Rana’s mother received a call on her mobile phone from an airline official who said that Ms. Rana would be denied boarding. The official said that he saw Ms. Rana’s name on a security list.
99. Ms. Rana went to the U.S. Embassy in Islamabad. FBI agents in Pakistan subsequently questioned her on four separate occasions. An FBI official told Ms. Rana’s father that if Ms. Rana agreed to be questioned by the FBI, he could “look into” getting her name taken off “the list.”
100. Ms. Rana was married in Pakistan in July 2010. She became pregnant in April 2012.
101. In October 2012, Ms. Rana sought to fly back to the United States to deliver her child and access needed medical care. She contacted U.S. Embassy officials to request a “waiver” to return to the United States by plane. Three weeks before her intended travel date, Ms. Rana’s brother provided her proposed itinerary to an FBI agent. The agent told Ms. Rana’s brother that she was cleared to fly on the proposed flights.
102. On the morning of Ms. Rana’s scheduled November 3, 2012 flight, the FBI agent called Ms. Rana’s brother and told him that Ms. Rana would be denied boarding on her flight.
103. Ms. Rana remains in Pakistan. Mohamed Sheikh Abdirahman Kariye 104. Plaintiff Mohamed Sheikh Abdirahman Kariye is a U.S. citizen and the imam, or religious leader, of Masjid As-Saber, also known as The Islamic Center of Portland. His job requires him to travel by commercial air to several speaking engagements and conferences each year.
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105. In early 2010, Mr. Kariye sought to visit his daughter, who is a high school student in Dubai. He booked tickets to travel by plane from Portland to Dubai, via Amsterdam.
106. On March 8, 2010, Mr. Kariye was denied boarding on his flight to Amsterdam at the Portland International Airport. An airline employee told Mr. Kariye that he could not fly because he was on a government watch list.
Ibraheim (Abe) Mashal 107. Plaintiff Ibraheim (Abe) Mashal was born and raised in the United States and lives in St. Charles, Illinois with his wife and three children. Since his honorable discharge from the U.S. Marine Corps in 2003, Mr. Mashal has worked as a traveling dog trainer. 108. Mr. Mashal has provided dog-training services to clients in twenty-three U.S. states. He often receives new clients through referrals from satisfied customers. 109. In early 2010, a woman in Spokane, Washington hired Mr. Mashal to train her dog. She paid for his round-trip air travel from Chicago to Spokane, his hotel accommodations in Spokane, and his dog-training services fee. Mr. Mashal planned to fly from Chicago to Spokane via Salt Lake City for the job. 110. On April 20, 2010, Mr. Mashal was denied boarding on his flight to Spokane at Chicago’s Midway Airport. The ticketing agent told Mr. Mashal that he was on the No Fly List and that he would not be able to board any flights. 111. Several days later, Mr. Mashal’s client in Spokane requested a refund after having been questioned about Mr. Mashal by an FBI agent. Mr. Mashal returned approximately $2,000 to the client. 112. On June 23, 2010, two FBI agents told Mr. Mashal that if he would help the FBI by serving as an informant, his name would be removed from the No Fly List and he would
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receive compensation. When Mr. Mashal asked to speak with them in the presence of his attorney, the agents promptly ended the meeting.
Salah Ali Ahmed 113. Plaintiff Salah Ali Ahmed is of Somali and Yemeni descent and was born and raised in Somalia. He moved to Atlanta in 1992 and became a naturalized U.S. citizen in 2007. His U.S.-citizen wife and six children, five of whom are U.S. citizens and one of whom is a lawful permanent resident, live with him in Norcross, Georgia, where he works as an electrical technician. His siblings, nieces, nephews, and other relatives live in Yemen. 114. Mr. Ahmed planned to fly to Yemen for a four-week vacation to visit relatives. He was scheduled to fly from Atlanta to Sana’a via Frankfurt on July 16, 2010 and to return on August 16, 2010. 115. On July 16, 2010, Mr. Ahmed was denied boarding on his flight to Frankfurt at Hartsfield-Jackson Atlanta International Airport. An airline employee told Mr. Ahmed that his passport was “flagged” and that he would not be permitted to board any flight. 116. A TSA officer also told Mr. Ahmed that he was “flagged” and that he would not be allowed to board any flights. The officer told Mr. Ahmed that he could travel by car, but that he could not leave the country by plane. Amir Meshal 117. Plaintiff Amir Meshal was born and raised in New Jersey. He currently works as a bus driver in Minnesota. 118. In or around May 2009, Mr. Meshal planned to travel from New Jersey to Orange County, California to visit friends.
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119. On June 9, 2009, Mr. Meshal was denied boarding on his flight to Irvine, California at Newark International Airport.
120. Approximately thirty uniformed and plainclothes officers surrounded Mr. Meshal at the check-in counter. One officer, who identified himself as an FBI agent, informed Mr. Meshal that he was on a government list that prohibited him from flying.
121. FBI agents subsequently offered Mr. Meshal the opportunity to serve as a government informant and, in exchange, promised to help remove him from the No Fly List, among other things. One agent told Mr. Meshal: “If you help us, we can help get you off of the No Fly List.”
Stephen Durga Persaud 122. Plaintiff Stephen Durga Persaud is a registered nurse who lives with his wife and children in Irvine, California. 123. Mr. Persaud moved with his family to St. Thomas in the U.S. Virgin Islands in January 2007 to visit family and attend nursing school. They planned to return to California in May 2010 so that Mr. Persaud’s wife could deliver their second child there and so that Mr. Persaud could attend a graduate program in nursing. Mr. Persaud purchased tickets for the family to fly from St. Thomas to Irvine with a change of planes in Miami. 124. On May 11, 2010, Mr. Persaud, his wife, and their sixteen-month old son went to the airport in St. Thomas to commence their trip home. Mr. Persaud was denied boarding on his flight. 125. Five government officials, including four FBI agents, appeared and surrounded Mr. Persaud, his wife, and their son at the airport. An FBI agent informed Mr. Persaud that he was on the No Fly List.
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126. Mr. Persaud’s wife and son flew to Irvine. Mr. Persaud remained in St. Thomas, unable to board a plane.
127. Desperate to join his family in Irvine before the birth of his second child, Mr. Persaud commenced a nine-day journey by ship and train on June 1, 2010. He reached home after traveling for five days by ship from St. Thomas to Miami and for four days by train from Miami to Los Angeles.
128. An FBI agent followed Mr. Persaud during his journey. On the ship, the agent told Mr. Persaud that his name would remain on the No Fly List and that the “problem” would be resolved only if Mr. Persaud cooperated with the FBI. The agent told Mr. Persaud, “There is no judicial process for getting off the No Fly List. The only way to get off the list is to talk to us.” Common Post Denial-of-Travel Allegations
129. After Plaintiffs Ahmed, Ghaleb, Kashem, Knaeble, Latif, Mohamed, Mashal, Rana, and Washburn were prevented from flying, U.S. officials known or believed to be FBI agents questioned each of them about their religious beliefs, religious practices, political opinions, academic studies, reading and writing on the internet and in email, and/or associations with persons of particular ethnic, national origin, or religious backgrounds. Upon information and belief, these Plaintiffs’ religious beliefs and practices, political opinions, academic studies, reading and writing on the internet and in email, and associations with others formed a basis for the government’s decision to include them on the No Fly List.
130. Subsequent to each Plaintiff first being denied travel via commercial aircraft to or from the United States, or over U.S. airspace, each Plaintiff completed at least one DHS TRIP form online and was assigned at least one Redress Control Number. Each Plaintiff received a letter as described in paragraph 38 above.
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131. Each Plaintiff has exhausted administrative remedies. 132. Following the commencement of this action and shortly after the filing of an August 16, 2010 preliminary injunction motion, U.S. officials communicated with those Plaintiffs who were still abroad, except for Plaintiff Rana, and instructed them to make the necessary travel arrangements to return to the United States under what was understood to be a “one-time waiver.” On November 10, 2012, U.S. officials communicated with Ms. Rana in Pakistan and instructed her to make the necessary travel arrangements to return to the United States under what was understood to be a “one-time waiver.” 133. All Plaintiffs who were unable to return home due to their inability to fly commercial airlines to or from the United States, or over U.S. airspace, have now done so except Plaintiffs Kashem, Mohamed, and Rana. 134. Plaintiffs Kashem, Mohamed, and Rana have not returned to the United States because Defendants have expressly refused to make any assurances about future travel. Plaintiffs Kashem and Mohamed fear that if they return to the United States, they will be unable to fly back to Saudi Arabia to resume their studies. Plaintiff Rana fears that if she returns to the United States, she will be unable to fly back to Pakistan, where her husband resides. 135. Plaintiffs do not present a security threat to commercial aviation. Plaintiffs do not know of any reason why they would be placed on the No Fly List. 136. All of the Plaintiffs believe they are still on the No Fly List. 137. Because Defendants have barred Plaintiffs from flying commercial airlines to and from the United States, and over U.S. airspace, Plaintiffs have suffered, and continue to suffer, various types of harm including the inability to travel domestically and internationally for familial, educational, social, religious, legal, business and employment reasons.
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FIRST CLAIM FOR RELIEF FAILURE TO PROVIDE POST-DEPRIVATION NOTICE AND HEARING
IN VIOLATION OF THE FIFTH AMENDMENT RIGHT TO PROCEDURAL DUE PROCESS
(Jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 702) 138. Each of the Plaintiffs learned that he or she was placed on the No Fly List and sought to challenge such placement. 139. Defendants’ actions as described above in refusing to provide Plaintiffs with any reason or basis for their placement on the No Fly List and in refusing to provide Plaintiffs with a meaningful opportunity to challenge their continued inclusion on the No Fly List deprive Plaintiffs of constitutionally protected liberty interests, including but not limited to those identified in paragraphs 140, 141, and 142 below. 140. Plaintiffs have a liberty interest in traveling free from unreasonable burdens within, to, and from the United States, and over U.S. air space. 141. Plaintiffs have a right to be free from false governmental stigmatization as individuals who are “known or suspected to be” terrorists, or who are otherwise associated with terrorist activity, when such harm arises in conjunction with the deprivation of their right to travel on the same terms as other travelers and/or the deprivation of their liberty interest under the Fifth Amendment in travel free from unreasonable burdens. 142. Plaintiffs have a liberty interest in nonattainder (i.e., the interest against being singled out for punishment without trial). Defendants’ actions have singled out Plaintiffs for punishments that include, but are not limited to, inability to travel by air to and from the United States, and over U.S. airspace, false association with a list of individuals suspected of terrorism, involuntary exile from the United States, and effective expatriation from the United States.
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143. Plaintiffs, having been denied boarding on commercial flights and having sought to challenge their placement on the No Fly List, are entitled to a constitutionally adequate legal mechanism that affords them notice of the reasons and bases for their placement on the No Fly List and a meaningful opportunity to contest their continued inclusion on the No Fly List.
144. By failing to provide Plaintiffs with such a constitutionally adequate legal mechanism, Defendants have deprived Plaintiffs of their protected liberty interests, including but not limited to their liberty interests in traveling, freedom from false stigmatization, and nonattainder, and thus have violated Plaintiffs’ constitutional rights without affording them due process of law and will continue to do so into the future if Plaintiffs are not afforded the relief demanded below.
SECOND CLAIM FOR RELIEF DEPRIVATION OF PROTECTED LIBERTIES IN VIOLATION OF FIFTH
AMENDMENT RIGHT TO SUBSTANTIVE DUE PROCESS (Jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 702)
145. Because Plaintiffs do not present a security threat to commercial aviation, Defendants’ actions as described above in including Plaintiffs on a watch list that prevents them from boarding commercial flights to and from the United States, and over U.S. airspace, are arbitrary, lack even a rational relationship to any legitimate government interest, and have unreasonably deprived Plaintiffs of constitutionally protected rights, including their liberty interests in travel, freedom from false stigmatization, and nonattainder.
146. Defendants have thus violated Plaintiffs’ constitutional rights without affording them due process of law and will continue to do so into the future if Plaintiffs are not afforded the relief demanded below.
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THIRD CLAIM FOR RELIEF UNLAWFUL AGENCY ACTION IN VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. §§ 702, 706 (Jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 702) 147. Defendants’ actions described herein were and are arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional rights, power, privilege, or immunity, and should be set aside as unlawful pursuant to 5 U.S.C. § 706. 148. Defendants’ failure to provide Plaintiffs, who had been denied boarding on commercial flights and sought to challenge their placement on the No Fly List, with a constitutionally adequate mechanism that affords them notice of the reasons and bases for their placement on the No Fly List and a meaningful opportunity to contest their continued inclusion on the No Fly List is arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional rights, power, privilege, or immunity, and should be set aside as unlawful pursuant to 5 U.S.C. § 706. 149. Because Plaintiffs do not present a security threat to commercial aviation, Defendants’ actions as described above in including Plaintiffs on a watch list that prevents them from boarding commercial flights to and from the United States, and over U.S. airspace, are arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional rights, power, privilege, or immunity, and should be set aside as unlawful pursuant to 5 U.S.C. § 706.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request: 1. A declaratory judgment that Defendants’ policies, practices, and customs violate the Fifth Amendment to the United States Constitution and the Administrative Procedure Act;
28 – THIRD AMENDED COMPLAINT

Case 3:10-cv-00750-BR Document 83 Filed 01/11/13 Page 29 of 30 Page ID#: 1042

2. An injunction that:

a. requires Defendants to remedy the constitutional and statutory violations

identified above, including the removal of Plaintiffs from any watch list or

database that prevents them from flying; and

b. requires Defendants to provide Plaintiffs with a legal mechanism that affords

them notice of the reasons and bases for their placement on the No Fly List and a

meaningful opportunity to contest their continued inclusion on the No Fly List.

3. An award of attorneys’ fees, costs, and expenses of all litigation, pursuant to 28

U.S.C. § 2412; and

4. Such other and further relief as the Court may deem just and proper.

DATED this January 11, 2013

Respectf

ully submitted,

/s/ Hina Shamsi Hina Shamsi (Admitted pro hac vice) Email: hshamsi@aclu.org Nusrat Jahan Choudhury (Admitted pro hac vice) Email: nchoudhury@aclu.org American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel.: (212) 519-2500; Fax: (212) 549-2654

Steven M. Wilker, OSB No. 911882 Email: steven.wilker@tonkon.com Tonkon Torp LLP 1600 Pioneer Tower 888 SW 5th Avenue Portland, OR 97204 Tel.: (503) 802-2040; Fax: (503) 972-3740 Cooperating Attorney for the ACLU Foundation of Oregon

Kevin Díaz, OSB No. 970480 Email: kdiaz@aclu-or.org ACLU Foundation of Oregon

29 – THIRD AMENDED COMPLAINT

Case 3:10-cv-00750-BR Document 83 Filed 01/11/13 Page 30 of 30 Page ID#: 1043
P.O. Box 40585 Portland, OR 97240 Tel.: (503) 227-6928; Fax: (503) 227-6948
Ahilan T. Arulanantham (Admitted pro hac vice) Email: aarulanantham@aclu-sc.org Jennifer Pasquarella (Admitted pro hac vice) Email: jpasquarella@aclu-sc.org ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 Tel.: (213) 977-9500; Fax: (213) 977-5297
Alan L. Schlosser (Admitted pro hac vice) Email: aschlosser@aclunc.org Julia Harumi Mass (Admitted pro hac vice) Email: jmass@aclunc.org ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111 Tel.: (415) 621-2493; Fax: (415) 255-8437
Laura Schauer Ives (Admitted pro hac vice) Email: lives@aclu-nm.org ACLU Foundation of New Mexico P.O. Box 566 Albuquerque, NM 87103 Tel.: (505) 243-0046; Fax: (505) 266-5916
Mitchell P. Hurley (Admitted pro hac vice) Email: mhurley@akingump.com Christopher M. Egleson (Admitted pro hac vice) Email: cegleson@akingump.com Justin H. Bell (Admitted pro hac vice) Email: jbell@akingump.com Akin Gump Strauss Hauer & Feld LLP One Bryant Park New York, NY 10036 Tel.: (212) 872-1011; Fax: (212) 872-1002
Attorneys for Plaintiffs: Ayman Latif, Mohamed Sheikh Abdirahman Kariye, Raymond Earl Knaeble IV, Faisal Nabin Kashem, Elias Mustafa Mohamed, Steven William Washburn, Abdullatif Muthanna, Nagib Ali Ghaleb, Mashaal Rana, Ibraheim Y. Mashal, Salah Ali Ahmed, Amir Meshal, and Stephen Persaud
30 – THIRD AMENDED COMPLAINT

 
 Latif v. Holder, --- F.Supp.2d ---- (2013)

2013 WL 4592515 Only the Westlaw citation is currently available.
United States District Court, D. Oregon.
Ayman LATIF, Mohamed Sheikh Abdirahm Kariye, Raymond Earl Knaeble IV, Faisal Nabin
Kashem, Elias Mustafa Mohamed, Stephen William Washburn, Abdullatif Muthanna, Nagib Ali Ghaleb, Mashaal Rana, Ibraheim Y. Mashal,
Salah Ali Ahmed, Amir Meshal, and Stephen Durga Persaud, Plaintiffs, v.
Eric H. HOLDER, Jr., in his official capacity as Attorney General of the United States; Robert S. Mueller III, in his official capacity as Director of the Federal Bureau of Investigation; and Timothy J. Healy, in his official capacity as Director of the
Terrorist Screening Center, Defendants.
No. 3:10–CV–00750–BR. | Aug. 28, 2013.
Synopsis Background: United States citizens and legal permanent residents brought action challenging their suspected inclusion on list of known and suspected terrorists not permitted to fly in the United States (no-fly list) against the Director of the FBI, the Director of the Terrorist Screening Center (TSC) administered by the FBI, and the Attorney General. Defendants moved to dismiss on ground that Transportation Security Administration (TSA) was an indispensable party that could not be joined. The District Court, Anna J. Brown, J., 2011 WL 1667471, granted motion. Plaintiffs appealed. The United States Court of Appeals for the Ninth Circuit, Tallman, Circuit Judge, 686 F.3d 1122, reversed and remanded. On remand, cross-motions for partial summary judgment were filed.
Holdings: The District Court, Brown, J., held that:
[1] citizens had constitutionally-protected liberty interest in traveling internationally by air;
[2] citizens had constitutionally-protected liberty interest in their reputation; and
[3] district court could not determine whether process available to contest placement on No Fly List created risk

of erroneous deprivation of constitutionally-protected liberty interests.
Motion granted in part, denied in part, and deferred in part.
Attorneys and Law Firms
Stephen M. Wilker, Tonkon Torp LLP, Kevin Diaz, ACLU Foundation of Oregon, Portland, OR, Hina Shamsi, Ben Wizner, Nusrat Jahan Choudhury, American Civil Liberties Union Foundation, Mitchell P. Hurley, Christopher M. Egleson, Justin H. Bell, Akin Gump Strauss Hauer & Feld LLP, New York, NY, Ahilan Arulanantham, Jennifer Pasquarella, ACLU Foundation of Southern California, Los Angeles, CA, Alan L. Schlosser, Julia Harumi Mass, ACLU Foundation of Northern California, San Francisco, CA, Laura Schauer Ives, ACLU Foundation of New Mexico, Albuquerque, NM, Reem Salahi, Salahi Law, Santa Monica, CA, for Plaintiffs.
Eric Holder, United States Attorney General, Diane Kelleher, Lily S. Farel, Amy Elizabeth Powell, Scott A. Risner, United States Department of Justice, Civil Division, Washington, D.C., S. Amanda Marshall, United States Attorney, James E. Cox, Jr., Assistant United States Attorney, Portland, OR, for Defendants.
Opinion
OPINION AND ORDER
BROWN, District Judge.
*1 This matter comes before the Court on Defendants’ Motion (# 85) for Partial Summary Judgment and Plaintiffs’ Cross–Motion (# 91) for Partial Summary Judgment. The parties seek summary judgment on Plaintiffs’ claims for procedural due process under the Fifth Amendment of the United States Constitution1 and the Administrative Procedures Act (APA), 5 U.S.C. § 706, in which Plaintiffs challenge the adequacy of Defendants’ redress procedures for persons on the United States government’s “No Fly List.” The Constitution Project (TCP) filed an Amicus Curiae Brief (# 99) in Support of Plaintiffs’ Cross–Motion.
The Court heard oral argument on June 21, 2013. At the conclusion of oral argument the Court requested
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Latif v. Holder, --- F.Supp.2d ---- (2013)
Defendants to submit additional briefing as to whether any appellate courts have issued opinions on the merits of a challenge brought by a plaintiff who sought review of a final agency decision received through the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP). Defendants filed their Notice of Response (# 107) to the Court’s Inquiry During Summary Judgment Hearing on July 3, 2013. The Court took the Cross–Motions under advisement on July 3, 2013.
For the reasons that follow, the Court GRANTS in part Plaintiffs’ Cross–Motion (# 91) as to Plaintiffs’ liberty interests in international air travel and reputation and DENIES in part Defendants’ Motion (# 85) as to the same issues. The Court, however, DEFERS ruling on the remaining parts of the pending Motions for the reasons set out herein and directs the parties to submit supplemental briefing in light of the Court’s rulings.
PLAINTIFFS’ CLAIMS
Plaintiffs are citizens and lawful permanent residents of the United States (including four veterans of the United States Armed Forces) who were not allowed to board flights to or from the United States or over United States air space. Plaintiffs believe they were denied boarding because they are on a government watch list known as the “No Fly List.” Plaintiffs allege some of them have been told by federal and/or local government officials that they are on the No Fly List. Each Plaintiff has submitted applications for redress through DHS TRIP. Despite Plaintiffs’ requests to officials and agencies for explanations as to why they were not permitted to board flights, none has been provided and Plaintiffs do not know whether they will be permitted to fly in the future.
In their Third Amended Complaint Plaintiffs allege Defendants have violated Plaintiffs’ Fifth Amendment right to procedural due process because Defendants have not given Plaintiffs any post-deprivation notice nor any meaningful opportunity to contest their continued inclusion on the No Fly List. Plaintiffs also assert Defendants’ actions have been arbitrary and capricious and constitute “unlawful agency action” in violation of the APA. Plaintiffs seek a declaratory judgment that Defendants’ policies, practices, and customs violate the Fifth Amendment of the United States Constitution and the APA and an injunction requiring Defendants (1) to remedy such violations, including removal of Plaintiffs’ names from any watch list or database that prevents them from flying; (2) to provide Plaintiffs with notice of the reasons and bases for Plaintiffs’ inclusion on the No Fly

List; and (3) to provide Plaintiffs with the opportunity to contest such inclusion.
PROCEDURAL BACKGROUND
*2 Plaintiffs filed this action on June 30, 2010. On May 3, 2011, 2011 WL 1667471, this Court issued an Order (# 69) granting Defendants’ Motion (# 43) to Dismiss for failure to join the Transportation Security Administration (TSA) as an indispensable party and for lack of subject-matter jurisdiction on the ground that the relief sought by Plaintiffs could only come from the appellate court in accordance with 49 U.S.C. § 46110(a). Plaintiffs appealed the Court’s order to the Ninth Circuit. Latif v. Holder, 686 F.3d 1122 (9th Cir.2012).
On July 26, 2012, the Ninth Circuit issued an opinion in which it reversed this Court’s decision, holding “the district court ... has original jurisdiction over Plaintiffs’ claim that the government failed to afford them an adequate opportunity to contest their apparent inclusion on the List.” 686 F.3d at 1130. The Court also held “49 U.S.C. § 46110 presents no barrier to adding TSA as an indispensable party.” Id. The Ninth Circuit issued its mandate on November 19, 2012, remanding the matter to this Court.
As noted, the parties filed Cross–Motions for Partial Summary Judgment, and the Court heard oral argument on June 21, 2013.
BACKGROUND
The following facts are undisputed unless otherwise noted:
I. The No Fly List The Terrorist Screening Center (TSC), which is administered by the Federal Bureau of Investigation (FBI), develops and maintains the federal government’s consolidated Terrorist Screening Database (TSDB or sometimes referred to as the watch list). The No Fly List is a subset of the TSDB.
TSC provides the No Fly List to TSA, a component of the Department of Homeland Security (DHS), for use in pre-screening airline passengers. TSC accepts
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Latif v. Holder, --- F.Supp.2d ---- (2013)
nominations for inclusion in the TSDB, which are generally accepted by TSC because of a “reasonable suspicion” that the individuals are known or suspected terrorists based on the totality of the information reviewed. The federal government does not release its minimum, substantive, derogatory criteria for placement on the No Fly List nor the “Watchlisting Guidance” created for internal use by intelligence and law-enforcement communities.
II. DHS TRIP Redress Process DHS TRIP is the mechanism available for individuals to seek redress for any travel-related screening issues experienced at airports or while crossing United States borders; i.e., denial of or delayed airline boarding, denial of or delayed entry into or exit from the United States, or continuous referral for additional (secondary) screening. DHS TRIP allows travelers who have faced such difficulties to submit a “Traveler Inquiry Form” online, by email, or by regular mail. The form prompts travelers to describe their complaint, to produce documentation relating to the issue, and to provide identification and their contact information.
If the traveler is an exact or near match to an identity within the TDSB, DHS TRIP deems the complaint to be TSDB-related and the traveler’s complaint is forwarded to TSC Redress for further review. Upon receipt of the complaint, TSC Redress reviews the available information, including the information and documentation provided by the traveler, and determines (1) whether the traveler is an exact match to an identity in the TSDB and (2) if an exact match, whether the traveler should continue to be in the TSDB. In making this determination, TSC coordinates with the agency that originally nominated the individual to be included in the TSDB. If the traveler is not an exact match to an identity in the TSDB but has been misidentified as someone who is, TSC Redress informs DHS of the misidentification. DHS, in conjunction with any other relevant agency, then addresses the misidentification by correcting information in the traveler’s records or taking other appropriate action.
*3 When the review is completed DHS TRIP then sends a determination letter to the traveler advising that DHS TRIP has completed its review. A DHS TRIP determination letter neither confirms nor denies that the complainant is in the TSDB or on the No Fly List and does not provide any further details about why the complainant may or may not be in the TSDB or on the No Fly List. In some cases a DHS TRIP determination provides that the recipient can pursue an administrative appeal of the determination letter with TSA or can seek

judicial review in a United States court of appeals pursuant to 49 U.S.C. § 46110.2
Determination letters, however, do not provide assurances about the complainant’s ability to undertake future travel. In fact, at no point in the available administrative process is a complainant told whether he or she is in the TSDB or a subset of the TSDB or given any explanation for his or her inclusion on such a list. Accordingly, there is also not any opportunity for a complainant to contest or to offer corrections to the record on which any such determination may be based.
III. Plaintiffs Solely for purposes of the parties’ Cross–Motions (# 85, # 91) presently before the Court, Defendants do not contest3 the following facts as asserted by Plaintiffs:
Plaintiffs are thirteen United States citizens who were denied boarding on flights over United States air space after January 1, 2009, and who believe they are on the United States government’s No Fly List. Some Plaintiffs were actually told by airline representatives, FBI agents, or other government officials that they are on the No Fly List.
Each Plaintiff filed DHS TRIP complaints after being denied boarding and received a determination letter. None of the determination letters that Plaintiffs received confirm or deny the existence of any terrorist watch list that includes them nor do any of the letters provide a reason for including the individual in the TDSB or on the No Fly List.
Many of these Plaintiffs cannot travel overseas by any way other than air because such journeys by boat or by land would be cost-prohibitive, would be time-consuming to a degree that Plaintiffs could not take the necessary time off from work, or would put Plaintiffs at risk of interrogation and detention by foreign authorities. In addition, some Plaintiffs are not physically well enough to endure such infeasible modes of travel.
While Plaintiffs’ circumstances are similar in many ways, each of their experiences and difficulties relating to and arising from their alleged inclusion on the No Fly List is unique as set forth in their Declarations filed in support of their Cross–Motion and summarized briefly below.
Amayan Latif: Latif is a United States Marine Corps veteran and lives in Stone Mountain, Georgia, with his wife and children. Between November 2008 and April 2010 Latif and his family were living in Egypt. In April
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Latif v. Holder, --- F.Supp.2d ---- (2013)
2010 Latif and his family attempted to return to the United States. Latif was not allowed to board the first leg of their flight from Cairo to Madrid. One month later Latif was questioned by FBI agents and told he was on the No Fly List. Because he was unable to board a flight to the United States, Latif’s United States veteran disability benefits were reduced from $899.00 per month to zero because he could not attend the scheduled evaluations required to continue his benefits. In August 2010 Latif returned home after the United States government granted him a “one-time waiver” to fly to the United States. Because he cannot fly, Latif is unable to travel from the United States to Egypt to resume studies or to Saudi Arabia to perform a hajj, a religious pilgrimage and Islamic obligation.
*4 Mohamed Sheikh Abdirahman Kariye: Kariye lives in Portland, Oregon with his wife and children. In March 2010 Kariye was not allowed to board a flight from Portland to Amsterdam, surrounded in public by government officials at the airport, and told by an airline employee that he was on a government watch list. Because Kariye is prohibited from boarding flights out of the United States, he could not fly to visit his daughter who was studying in Dubai and cannot travel to Saudi Arabia to accompany his mother on the hajj pilgrimage.
Raymond Earl Knaeble IV: Knaeble is a United States Army veteran and lives in Chicago, Illinois. In 2006 Knable was working in Kuwait. In March 2010 Knaeble flew from Kuwait to Bogota, Columbia, to marry his wife, a Columbian citizen, and to spend time with her family. On March 14, 2010, Knaeble was not allowed to board his flight from Bogota to Miami. Knaeble was subsequently questioned numerous times by FBI agents in Columbia. Because Knaeble was unable to fly home for a required medical examination, his employer rescinded its job offer for a position in Quatar. Knaeble attempted to return to the United States through Mexico, where he was detained for over 15 hours, questioned, and forced to return to Bogota. Knaeble eventually returned to the United States in August 2010 by traveling for 12 days from Santa Marta to Panama City and then to Mexicali, California. He was detained, interrogated, and searched by foreign authorities on numerous occasions during that journey.
Faisal Nabin Kashem: In January 2010 Kashem traveled from the United States to Saudi Arabia to attend a two-year Arabic language-certification program. In June 2010 Kashem attempted to fly from Jeddah, Saudi Arabia, to New York; was denied boarding; and was told by an airline employee that he was on the No Fly List. Kashem was later questioned by FBI agents who also told him he was on the No Fly List. After joining this lawsuit, the

United States government offered Kashem a “one-time waiver” to return to the United States, which he has so far declined because United States officials have refused to confirm that he will be able to return to Saudi Arabia to complete his studies.
Elias Mustafa Mohamed: In January 2010 Mohamed traveled from the United States to Saudi Arabia to attend a two-year Arabic language-certification program. In June 2010 Mohamed attempted to fly from Jeddah, Saudi Arabia, to Washington, D.C., but he was not allowed to board his flight and was told by an airline employee that he was on the No Fly List. He was later questioned by FBI agents who also told him he was on the No Fly List. After joining this lawsuit, the United States government offered Mohamed a “one-time waiver” to return to the United States, which he has so far declined because United States officials have refused to confirm that he will be able to return to Saudi Arabia to complete his studies.
Steven William Washburn: Washburn is a United States Air Force veteran and lives in New Mexico. In February 2010 Washburn was not allowed to board a flight from Ireland to Boston. He later attempted to fly from Dublin to London to Mexico City. Although he was allowed to board the flight from Dublin to London, the aircraft turned around 3½ hours after takeoff and returned to London where Washburn was detained. Washburn was subsequently interrogated by FBI agents on numerous occasions. In May 2010 Washburn returned to New Mexico by taking a series of five flights that eventually landed in Juarez, Mexico, where he crossed the United States border on foot. Washburn was subsequently detained and interrogated by Mexican officials. In June 2012 an FBI agent told Washburn that the agent would help remove Washburn’s name from the No Fly List if he agreed to speak to the FBI. Since May 2010 Washburn has been separated from his wife who is in Ireland because she has been unable to obtain a visa to come to the United States and Washburn is unable to fly to Ireland.
*5 Nagib Ali Ghaleb: Ghaleb lives in Oakland, California. In February 2010 Ghaleb was traveling from Yemen where his wife and children were living to San Francisco via Frankfurt. Ghaleb was not allowed to board his flight from Frankfurt to San Francisco. Ghaleb was later interrogated by FBI agents who offered to arrange to fly Ghaleb back to the United States if he agreed to tell them who the “bad guys” were in Yemen and San Francisco and to provide names of people from his mosque and community. The agents threatened to have Ghaleb imprisoned. In May 2010 Ghaleb again attempted
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Latif v. Holder, --- F.Supp.2d ---- (2013)
to return to the United States. He was able to fly from Sana’a, Yemen, to Dubai, but he was not allowed to board his flight from Dubai to San Francisco. In July 2010 Ghaleb accepted a “one-time wavier” offered by the United States government to return to the United States. Because Ghaleb cannot fly, he cannot go to Yemen to be with his ill mother or to see his brothers or sisters.
Abdullatif Muthanna: Muthanna lives in Rochester, New York. In June 2009 Muthanna left Rochester to visit his wife and children, who live in Yemen. In May 2010 Muthanna was to return to the United States on a flight from Aden, Yemen, to New York via Jeddah, Saudi Arabia, but he was not allowed to board his flight from Jeddah to New York. In September 2010 Muthanna accepted a “one-time waiver” offered by the United States government to return home. In June 2012 Muthanna wanted to be with his family and attempted to fly to Yemen, but he was not allowed to board a flight departing from New York. In August 2012 Muthanna attempted a thirty-six-day journey over land and by ship from Rochester to Yemen, but a ship captain refused to let Muthanna sail on a cargo freighter departing from Philadelphia on recommendation of United States Customs and Boarder Protection. Muthanna was not allowed to board fights on four separate occasions before finally being able to board a flight from New York to Dubai in February 2013.
Mashaal Rana: Rana moved to Pakistan for school in 2009. In February 2010 Rana was not allowed to board a flight from Lahore, Pakistan, to New York. Rana’s brother, who lives in the United States, was subsequently interrogated by an FBI agent. In October 2012 Rana was six-months pregnant and again attempted to return to New York to receive needed medical care and to deliver her child. Rana’s brother worked with United States officials to clear Rana to fly. Rana received such clearance, but five hours before her flight was to depart she received notice that she would not be allowed to board. Rana was not able to find a safe alternative to travel to the United States prior to the birth of her child. In November 2010 the United States government offered Rana a “one-time waiver,” which she has not used because she fears she would not be able to return to Pakistan to be with her husband.
Ibraheim (Abe) Mashal: Mashal is a United States Marine Corps veteran. Mashal was not allowed to board a flight from Chicago, Illinois, to Spokane, Washington, and was told by an airline representative that he was on the No Fly List. Mashal was subsequently questioned by FBI agents and told his name would be removed from the No Fly List and he would receive compensation if he

helped the FBI by serving as an informant. When Mashal asked to have his attorney present before answering the FBI’s questions, the agents ended the meeting. Mashal owns a dogtraining business. Because he is unable to fly, he has lost clients; had to turn down business; and has been prevented from attending his sister-in-law’s graduation, the wedding of a close friend, the funeral of a close friend, and fundraising events for the nonprofit organization that he founded.
*6 Salah Ali Ahmed: Ahmed lives in Norcross, Georgia. In July 2010 Ahmed was traveling from Atlanta to Yemen via Frankfurt and was not allowed to board the flight in Atlanta. Ahmed was subsequently questioned by FBI agents. Because he is unable to fly, Ahmed was unable to travel to Yemen in 2012 when his brother died and is unable to travel to Yemen to visit his extended family and to manage property he owns there.
Amir Meshal: Meshal lives in Minnesota. In June 2009 Meshal was not allowed to board a flight from Irvine, California, to Newark, New Jersey. Meshal was told by an FBI agent that he was on a government list that prohibits him from flying. In October 2010 FBI agents offered Meshal the opportunity to serve as a government informant in exchange for assistance in removing his name from the No Fly List. Because Meshal is unable to fly, he cannot visit his mother and extended family in Egypt.
Stephen Durga Persaud: Persaud lives in Irvine, California. In May 2010 Persaud was not allowed to board a flight from St. Thomas to Miami. An FBI agent told Persaud that he was on the No Fly List, interrogated him, and told him the only way to get off the No Fly List was to “talk to us.” In June 2010 Persaud took a five-day boat trip from St. Thomas to Miami and a four-day train ride from Miami to Los Angeles so he could be home for the birth of his second child. Because he cannot fly, Persaud cannot travel to Saudi Arabia to perform the hajj pilgrimage.
STANDARDS
Summary judgment is appropriate when there is not a “genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Washington Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir.2011). See also Fed.R.Civ.P. 56(a).
The court must draw all reasonable inferences in favor of the nonmoving party. Sluimer v. Verity, Inc., 606 F.3d
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Latif v. Holder, --- F.Supp.2d ---- (2013)
584, 587 (9th Cir.2010). “Summary judgment cannot be granted where contrary inferences may be drawn from the evidence as to material issues.” Easter v. Am. W. Fin., 381 F.3d 948, 957 (9th Cir.2004)(citing Sherman Oaks Med. Arts Ctr., Ltd. v. Carpenters Local Union No.1936, 680 F.2d 594, 598 (9th Cir.1982)).

DISCUSSION
As noted, Plaintiffs allege Defendants have violated Plaintiffs’ Fifth Amendment right to procedural due process because Defendants have not given Plaintiffs any post-deprivation notice nor any meaningful opportunity to contest their continued inclusion on the No Fly List.

I. Plaintiffs’ Procedural Due–Process Claims The fundamental requirement of due process is “the opportunity to be heard ‘at a meaningful time in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1979). The Supreme Court has set forth a three-factor balancing test for courts to use when evaluating whether the government has provided due process:
(1) the private interest that will be affected by the official action;
*7 (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;
(3) the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews, 424 U.S. at 335, 96 S.Ct. 893.

A. First Factor: Private Interest

Plaintiffs contend the first factor under Mathews has been

satisfied

because

Plaintiffs

have

a

constitutionally-protected liberty interest in travel and

reputation. Plaintiffs assert they have been deprived of

both by their inclusion on the No Fly List.

1. Right to Travel
[1] Plaintiffs contend the government has deprived them of their protected liberty interest in travel. In Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), the Supreme Court held “[t]he right to travel is part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment.” Id. at 125, 78 S.Ct. 1113.
As noted by the Ninth Circuit, “the [Supreme] Court has consistently treated the right to international travel as a liberty interest that is protected by the Due Process Clause of the Fifth Amendment.” DeNieva v. Reyes, 966 F.2d 480, 485 (9th Cir.1992)(emphasis added)(citing Aptheker v. Sec’y of State, 378 U.S. 500, 505–08, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964), and Califano v. Aznavorian, 439 U.S. 170, 176, 99 S.Ct. 471, 58 L.Ed.2d 435 (1978)). In DeNieva the plaintiff brought a claim under 42 U.S.C. § 1983 after her passport was seized by government officials. The Ninth Circuit held the plaintiff had a right under the Fifth Amendment to travel internationally, and that right could not be deprived without a post-deprivation hearing. 966 F.2d at 485.
Although Defendants do not dispute the United States Constitution affords procedural due-process protection to an individual’s liberty interest in travel, Defendants rely heavily on Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir.2006), and Green v. Transp. Sec. Admin., 351 F.Supp.2d 1119 (W.D.Wash.2005), to support their position that there is not a constitutional right to travel by airplane or to access the most convenient form of travel. In Gilmore the plaintiff challenged the government’s airline passenger identification policy as unconstitutional, alleging the policy violated his right to travel because he could not travel by commercial airline without presenting identification. The Ninth Circuit rejected plaintiff’s argument because “the Constitution does not guarantee the right to travel by any particular form of transportation.” 435 F.3d at 1136. The court also found the “burden” imposed by the challenged identification policy was not unreasonable. Id. at 1137. The plaintiffs in Green alleged they were innocent passengers without links to terrorist activity, but they had names similar or identical to names on the No Fly List and had been mistakenly identified by airport personnel as the individuals whose names appeared on that list. As a result, the plaintiffs were subjected to enhanced security screening. None of the plaintiffs ever missed a flight or were subjected to heightened screening for more than an hour. 351 F.Supp.2d at 1122. The court denied the plaintiffs’ procedural due-process claim and held the plaintiffs did not have a right to travel throughout the United States “without any impediments whatsoever.” Id.
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at 1130.
*8 The Court finds Green and Gilmore are distinguishable from this case for a number of reasons. These cases involve burdens on the right to interstate travel as opposed to international travel. Although there are perhaps viable alternatives to flying for domestic travel within the continental United States such as traveling by car or train, the Court disagrees with Defendants’ contention that international air travel is a mere convenience in light of the realities of our modern world. Such an argument ignores the numerous reasons an individual may have for wanting or needing to travel overseas quickly such as for the birth of a child, the death of a loved one, a business opportunity, or a religious obligation. In Ibrahim v. Department of Homeland Security the Northern District of California recently rejected an argument similar to the one made by Defendants here:
While the Constitution does not ordinarily guarantee the right to travel by any particular form of transportation, given that other forms of travel usually remain possible, the fact remains that for international travel, air transport in these modern times is practically the only form of transportation, travel by ship being prohibitively expensive. .... Decisions involving domestic air travel, such as the Gilmore case, are not on point.
No. C 06–00545 WHA, 2012 WL 6652362, at *7 (N.D.Cal., Dec. 20, 2012). Other cases cited by Defendants on this issue are similarly distinguishable. See, e.g., Miller v. Reed, 176 F.3d 1202 (9th Cir.1999)(restrictions on interstate travel as it relates to the right to drive); Town of Southold v. Town of E. Hampton, 477 F.3d 38 (2d Cir.2007)(restrictions on interstate travel as it relates to riding ferries); Cramer v. Skinner, 931 F.2d 1020 (5th Cir.1991)(restrictions on interstate air service).
In addition, the burdens imposed by the restrictions on the plaintiffs in Green and Gilmore are far less than the alleged burdens at issue here. While the plaintiffs in Green and Gilmore faced obstacles before being able to board their flights, they were not completely banned from flying like Plaintiffs in this case. Having to show identification to board a commercial aircraft and undergoing enhanced security screening for less than an hour does not rise to the same level of deprivation as

being denied boarding on any flight for the indefinite future. Although Plaintiffs concede the deprivation at issue in this matter may not be as great as that in cases such as DeNieva involving the seizure of one’s passport, the Court, nevertheless, finds passport-revocation cases more analogous and helpful to the Court’s analysis of Plaintiffs’ specific circumstances than those cases cited by Defendants in support of their position.
Finally, the bases of the claims asserted in Green and Gilmore are different than the claims at issue here. In Green and Gilmore the plaintiffs sought to invalidate the challenged government restriction as per se unconstitutional. Here Plaintiffs do not contend the restriction is unconstitutional, but merely assert the burden imposed by the challenged restriction requires a fairer process.
*9 Thus, the Court concludes to the extent that Defendants argue all modes of transportation must be foreclosed before an individual’s due-process rights are triggered, such an argument is unsupported. For example, in DeNieva the Ninth Circuit found the plaintiff had a protected liberty interest in her right to travel not because she was completely banned from traveling, but rather because “retention of DeNieva’s passport infringed upon her ability to travel internationally.” 966 F.2d at 485. The court reasoned: “Without her passport, she could travel internationally only with great difficulty, if at all.” Id. (emphasis added). See also Hernandez v. Cremer, 913 F.2d 230, 234, 238 (5th Cir.1990)(deprivation of a liberty interest occurred when the United States government restricted the plaintiff’s ability to travel to and from Mexico).
Here it is undisputed that inclusion on the No Fly List completely bans listed persons from boarding commercial flights to or from the United States or over United States air space. Thus, Plaintiffs have shown their placement on the No Fly List has in the past and will in the future severely restrict Plaintiffs’ ability to travel internationally. Moreover, the realistic implications of being on the No Fly List are potentially far-reaching. For example, TSC shares watchlist information with 22 foreign governments and United States Customs and Boarder Protection makes recommendations to ship captains as to whether a passenger poses a risk to transportation security, which can result in further interference with an individual’s ability to travel as evidenced by some Plaintiffs’ experiences as they attempted to travel abroad by boat and land and were either turned away or completed their journey only after an extraordinary amount of time, expense, and difficulty.
7

Latif v. Holder, --- F.Supp.2d ---- (2013)
Accordingly, the Court concludes on this record that Plaintiffs have a constitutionally-protected liberty interest in traveling internationally by air, which is affected by being placed on the No Fly List.
2. Stigma–Plus—Reputation
[2] Plaintiffs also assert the first factor under Mathews has been satisfied because Plaintiffs have been stigmatized “in conjunction with their right to travel on the same terms as other travelers.” First Am. Compl. ¶ 141.
[3] [4] Under the “stigma-plus” doctrine, the Supreme Court has recognized a constitutionally-protected interest in “a person’s good name, reputation, honor, or integrity.” Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (U.S.1971). “To prevail on a claim under the stigma-plus doctrine, Plaintiffs must show (1) public disclosure of a stigmatizing statement by the government, the accuracy of which is contested; plus (2) the denial of some more tangible interest such as employment, or the alteration of a right or status recognized by state law.” Green, 351 F.Supp.2d at 1129 (emphasis added)(citing Ulrich v. City & County of San Francisco, 308 F.3d 968, 982 (9th Cir.2002), and Paul v. Davis, 424 U.S. 693, 701, 711, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)). “The plus must be a deprivation of a liberty or property interest by the state ... that directly affects the [Plaintiffs’] rights.” Id. (quoting Miller v. Cal., 355 F.3d 1172, 1178 (9th Cir.2004)). Under the “plus” prong, a plaintiff can show he has suffered a change of legal status if he “legally [cannot] do something that [he] could otherwise do.” Miller, 355 F.3d at 1179 (discussing Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971)).
*10 Plaintiffs contend, and Defendants do not dispute, placement on the No Fly List carries with it a stigma of being a suspected terrorist. Defendants, however, argue Plaintiffs cannot meet the “plus” part of the test because (1) Plaintiffs do not have a right to travel by airplane and (2) there is no “connection” here between the stigma and the plus because Plaintiffs have alternative means of travel available.
As noted, the Court disagrees and has concluded Plaintiffs have a constitutionally-protected liberty interest in the right to travel internationally by air. In addition, Plaintiffs have shown the “plus” because being on the No Fly List means Plaintiffs are legally banned from traveling by air at least to and from the United States and over United States air space, which they would be able to do but for

their inclusion on the No Fly List.
Because the Court concludes Plaintiffs have constitutionally-protected liberty interests both in international air travel and reputation, the Court concludes the first factor under the Mathews test weighs in Plaintiffs’ favor.
B. Second factor: Risk of Erroneous Deprivation [5] Because Plaintiffs have protected liberty interests under the first Mathews factor, the issue becomes whether the current process available to Plaintiffs to contest placement on the No Fly List creates the risk of erroneous deprivation of those interests.
1. Notice and Hearing
“For more than a century the central meaning of procedural due process has been clear: Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. It is equally fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner.” Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972)(internal citations and quotations omitted).
[6] Notice is insufficient when an individual does not have adequate information and an opportunity to correct any errors that may have led to the deprivation. Al Haramain Islamic Found., Inc. v. U.S. Dep’t of Treasury, 686 F.3d 965, 982 (9th Cir.2012)(“Without knowledge of a charge, even simple factual errors may go uncorrected despite potentially easy, ready, and persuasive explanations.”). See also KindHearts for Charitable Humanitarian Dev., Inc. v. Geithner, 647 F.Supp.2d 857, 905 (N.D.Ohio 2009)(risk of erroneous deprivation existed when government failed to provide information about the basis for blocking the plaintiff corporation’s assets, which rendered the invitation to submit a letter challenging the action futile because the challenge could be neither comprehensive nor successful); Gete v. I.N.S., 121 F.3d 1285, 1298 (9th Cir.1997)(INS procedures following vehicle seizures violated procedural due process when INS did not provide post-seizure its legal and factual basis for the seizure, “copies of [the] evidence to be used against [the plaintiffs],” and “statements of the reasons for its denials of relief.”).
*11 In some cases a post-deprivation hearing may be
8

Latif v. Holder, --- F.Supp.2d ---- (2013)
sufficient to satisfy the hearing requirement, but “under no circumstances has the Supreme Court permitted a state to deprive a person of a life, liberty, or property interest under the Due Process Clause without any hearing whatsoever.” DeNieva, 966 F.2d at 485 (citations omitted).
Plaintiffs argue the redress process available here is insufficient and does not provide the basic process that is due. Plaintiffs contend they are entitled to (1) a post-deprivation notice setting forth the government’s reasons for placing Plaintiffs on the No Fly List in sufficient detail to allow Plaintiffs to put forward a defense and (2) a post-deprivation hearing at which Plaintiffs can meaningfully contest their placement on the No Fly List.
It is undisputed that a DHS TRIP complainant is never informed of the specific reasons for inclusion on the No Fly List. In fact, Defendants acknowledge the government’s policy is never to confirm or to deny an individual’s placement on the No Fly List. It is also undisputed that the current process does not provide a hearing at which an individual can present evidence to contest his or her inclusion on the No Fly List. Plaintiffs assert this process is constitutionally deficient and creates a high risk of “erroneous deprivation” of their constitutional rights because they cannot provide the evidence necessary to clear up any errors without knowing why they are on the No Fly List. Plaintiffs contend this risk is compounded by the fact that they are not permitted to have a hearing to confront and to rebut the bases for their inclusion on the No Fly List.
As noted, Defendants do not dispute the notice sought by Plaintiffs is neither given before an individual is placed on the No Fly List nor after the individual seeks redress through DHS TRIP. Defendants instead contend the DHS TRIP process is all that Plaintiffs are due in light of the government’s interest in national security. Defendants argue they are not required to provide Plaintiffs with information about their alleged status on the No Fly List or an opportunity to contest that placement because providing such information would require Defendants to reveal classified information, which they cannot do. Defendants also assert they are not required to provide an opportunity for Plaintiffs to confront or to rebut the grounds for inclusion on the No Fly List because confrontation and rebuttal are not absolute requirements for all government proceedings, especially in cases where the information at issue is highly sensitive to national security. See Jifry v. F.A.A., 370 F.3d 1174, 1183 (D.C.Cir.2004)(“In light of the governmental interests at stake and the sensitive security information, substitute

procedural safeguards may be impracticable, and in any event, are unnecessary under our precedent.”).
Defendants contend the current redress process is a “suitable substitute” for an evidentiary hearing because DHS TRIP allows a complaint to be filed, the complaint to be reviewed, and judicial review by the court of appeals for those who are dissatisfied with the results. Defendants argue this process achieves an appropriate balance by providing an opportunity for review of any alleged delay or denial of boarding on a flight without requiring the government to reveal sensitive or classified information.
2. Accuracy and Quality Assurances
*12 Defendants contend the current redress process is adequate because there is little risk of erroneous deprivation of an individual’s constitutional rights as a result of the quality controls in place to monitor the contents of the TSDB and the names included on the No Fly List. For example, (1) the TSDB is updated daily, (2) the TSDB is reviewed and audited on a regular basis to comply with quality-control measures, and (3) nominations to the No Fly List are reviewed by TSC personnel to ensure they meet the required criteria.
Plaintiffs and TCP counter Defendants’ contentions by arguing the adequacy of the DHS TRIP front-end procedures is disputed by government reports and audits that document errors on the watch list from which the No Fly List is compiled. For example, in a 2009 audit report, the Department of Justice Office of Inspector General (DOJ OIG) concluded the “FBI did not update or remove watch list records as required.” Choudhury Decl., Ex. F at iv. In that report DOJ OIG also found the FBI failed to (1) timely remove records in 72 percent of cases where it was necessary, (2) modify watch-list records in 67 percent of cases where it was necessary, and (3) remove terrorism case classifications in 35 percent of cases where it was necessary. Id. at iv-vi.
In Ibrahim v. Department of Homeland Security, the Ninth Circuit reviewed other governmental reports regarding the TSDB and noted similarly troubling deficiencies:
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
9

Latif v. Holder, --- F.Supp.2d ---- (2013)
quality assurance process.” ... Tens of thousands of travelers have been misidentified because of misspellings and transcription errors in the nomination process, and because of computer algorithms that imperfectly match travelers against the names on the list. TSA maintains a list of approximately 30,000 individuals who are commonly confused with those on the No–Fly and Selectee Lists. One major air carrier reported that it encountered 9,000 erroneous terrorist watchlist matches every day during April 2008.
669 F.3d 983, 990 (9th Cir.2012) (citations omitted).
Citing to government reports from 2007 and 2012,4 Defendants argue the reports relied on by Plaintiffs and TCP are outdated and not an accurate portrayal of the current TSDB process as recent improvements have helped reduce the amount of errors associated with the process. Plaintiffs and TCP contend, however, even these more recent improvements have not addressed or corrected the risk shown here; i.e., being placed on the No Fly List in error.
3. Availability of Judicial Review
Defendants argue judicial review by a court of appeals under 49 U.S.C. § 46110 is adequate due process for those who are dissatisfied with the DHS TRIP redress process as it sufficiently balances the government’s interest in security and an individual’s constitutional rights. Plaintiffs, however, argue because of the lack of information contained in the DHS TRIP determination letters, they “do not know what to appeal, whether to appeal, or how best to advocate for themselves on appeal.” Pls.’ Am. Memo. in Opp’n (# 98–2) to Defs.’ Mot. for Partial Summ. J. at n. 37. Although this issue was raised by the parties in their briefing, it was not addressed in detail.
*13 At oral argument Defendants explained the government files an administrative record and other materials ex parte and in camera with the appellate court as part of the judicial-review process. This Court does not have any other information about the review process such as what specifically would be in the administrative record

submitted to the appellate court, what other materials might be submitted, or the nature of the record or materials that deems them sensitive and/or classified so they cannot be revealed to anyone other than the appellate court.
At oral argument the Court requested Defendants to submit additional briefing as to whether any appellate courts have issued opinions on the merits of a challenge brought by a plaintiff who sought review of a final agency decision reached through the DHS TRIP process. Defendants advise “no appellate court has issued a decision on the merits of such a challenge,” but Defendants note there are currently three such cases pending in the Ninth Circuit and the District of Columbia Circuit: Arjmand v. TSA, No. 12–71748 (9th Cir.); Ege v. DHS, No. 13–1110 (D.C.Cir.); and Kadirov v. TSA, No. 10–1185 (D.C.Cir.).
As noted, the DHS TRIP process, at least through the determination-letter step, does not provide Plaintiffs with either post-deprivation notice nor a hearing. Plaintiffs have not been officially provided with any information about why they are not allowed to board commercial flights; they have not been officially informed whether they are on the No Fly List; if they are on the No Fly List, they have not been provided with an opportunity to contest their placement on the list; and they have not been provided with an in-person hearing. The question remains, however, whether, as Defendants contend, judicial review of the record on which the government acted as to each Plaintiff is sufficient to satisfy the requirements of due process and to avoid the risk of erroneous deprivation. The Court concludes the current record in this case is not sufficiently developed as to the judicial-review process for the Court to resolve this question on the parties’ Cross–Motions or on this record.
C. Third Factor: Government’s Interest The third and final Mathews factor requires the Court to weigh the government’s interest, “including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335, 96 S.Ct. 893.
Defendants again argue the DHS TRIP process, including the availability of judicial review, is adequate in light of the government’s “paramount interest in ensuring that TDSB information can be broadly shared across the government to maximize the nation’s security, without fear that such information will be disclosed whenever anyone cannot travel as he or she might choose.” Defs.’ Reply Memo. (# 102) in Supp. of Defs.’ Mot. for Summ.
10

Latif v. Holder, --- F.Supp.2d ---- (2013)
J. at 19.
Because the record is not sufficiently developed for the Court to assess fully the second factor of the Mathews balancing test with respect to the judicial-review process, the Court is unable to evaluate the third factor as well. In other words, the Court does not yet have a sufficiently developed record to weigh the government’s interests against the current review process that is available to Plaintiffs in order to determine whether additional or alternative procedural requirements are necessary or possible.
II. Plaintiffs’ APA Claims *14 [7] Plaintiffs also challenge Defendants’ actions under the APA on two separate theories: (1) Defendants’ failure to afford United States citizens on the No Fly List meaningful notice and a hearing violates due process and is “contrary to constitutional right, power, privilege, or immunity” under APA § 706(2)(B) and (2) Defendants’ redress procedures are arbitrary and capricious under APA § 706(2)(A).
In light of the Court’s ruling as to Plaintiffs’ procedural due-process claims, the Court defers ruling on the parties’ Cross–Motions as to Plaintiffs’ APA claims at this time because the Court is not yet able to resolve on the current record whether the judicial-review process is a sufficient, post-deprivation process under the United States Constitution or the APA.
CONCLUSION
For these reasons, the Court GRANTS in part Plaintiffs’ Cross–Motion (# 91) as to Plaintiff’s liberty interests in international air travel and reputation, DENIES in part Defendants’ Motion (# 85) as to the same issue, and DEFERS ruling on the remaining parts of the pending Cross–Motions.
The Court also directs the parties to confer and to submit a joint status report no later than September 9, 2013, setting out their recommendation as to the most effective process to better develop the record so that the Court may

complete its consideration of the still-pending Motions (# 91, # 85) and specifically setting out any additional issues that the parties believe need to be resolved on the existing Cross–Motions in light of the Court’s rulings herein.
IT IS SO ORDERED.

1

Plaintiffs have also asserted a claim under the Fifth

Amendment for violation of substantive due process,

which is not at issue for purposes of these

Cross–Motions.

2

49 U.S.C. § 46110(a) provides in part: “[A] person

disclosing a substantial interest in an order issued by

the Secretary of Transportation ... in whole or in part

under this part ... 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.”

3

As a matter of policy, the United States government

does not confirm or deny whether an individual is on

the No Fly List nor does it provide any other details as

to that issue. Defendants have accordingly chosen not

to refute Plaintiffs’ allegations that they are on the No

Fly List for purposes of these Motions only. The Court,

therefore, assumes as true Plaintiffs’ assertions that

they are on the No Fly List only for purposes of these

Cross–Motions.

4

See United States Department of Justice, Office of the

Inspector General, Audit Division, Audit Report 07–41,

Follow–Up Audit of the Terrorist Screening Center

(2007); United States Government Accountability

Office, GAO–12–476, Terrorist Watchlist: Routinely

Assessing Impacts of Agency Actions Since the

December 25, 2009, Attempted Attack Could Help

Inform Future Efforts (2012).

	  

11

 
 Case 3:10-cv-00750-BR Document 136 Filed 06/24/14 Page 1 of 65 Page ID#: 3159

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

AYMAN LATIF, MOHAMED SHEIKH ABDIRAHM KARIYE, RAYMOND EARL KNAEBLE IV, STEVEN WILLIAM WASHBURN, NAGIB ALI GHALEB, ABDULLATIF MUTHANNA, FAISAL NABIN KASHEM, ELIAS MUSTAFA MOHAMED, IBRAHEIM Y. MASHAL, SALAH ALI AHMED, AMIR MESHAL, STEPHEN DURGA PERSAUD, and MASHAAL RANA,
Plaintiffs,
v.
ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States; JAMES B. COMEY, in his official capacity as Director of the Federal Bureau of Investigation; and CHRISTOPHER M. PIEHOTA, in his official capacity as Director of the FBI Terrorist Screening Center,
Defendants.

3:10-cv-00750-BR OPINION AND ORDER

1 - OPINION AND ORDER

Case 3:10-cv-00750-BR Document 136 Filed 06/24/14 Page 2 of 65 Page ID#: 3160

STEVEN M. WILKER
Tonkon Torp LLP
888 s.w. 5'" Avenue,
Portland, OR 97204 (503) 802-2040

Ste.

1600

HINA SHAMSI American Civil Liberties Union 125 Broad Street, 18'° Floor New York, NY 10004 (212) 549-2500

KEVIN DIAZ American Civil Liberties Union P.O. Box 40585 Portland, OR 97240 (503) 227-6928

ALEXANDRA F. SMITH
LAURA SCHAUER IVES ACLU Foundation of New Mexico P.O. Box 566 Albuquerque, NM 87103 (505) 266-5915

AHILAN ARULANANTHAM JENNIFER PASQUARELLA ACLU Foundation of Southern California
1313 West st• Street
Los Angeles, CA 90017 (213) 977-5211

ALAN L. SCHLOSSER
JULIA HARUMI MASS ACLU of Northern California 39 Drumm Street San Francisco, CA 94111 (415) 621-2493

CHRISTOPHER M. EGLESON
JUSTIN H. BELL
MITCHELL P. HURLEY Akin Gump Strauss Hauer & Feld LLP One Bryant Park New York, NY 10036 (212) 872-1039

2 - OPINION AND ORDER

Case 3:10-cv-00750-BR Document 136 Filed 06/24/14 Page 3 of 65 Page ID#: 3161
REEM SALAHI Salahi Law 429 Santa Monica Boulevard, Ste. 550 Santa Monica, CA 90401 (510) 225-8880
Attorneys for Plaintiffs
DEVIN N. ROBINSON Stewart Shadduck & Robinson LLC 6110 N. Lombard Street, Ste. B Portland, OR 97203 (503) 228-7020
RITA M. SIEMION 637 Kenyon Street NW Washington, DC 20010 (703) 655-1467
Attorneys for Amicus Curiae The Constitution Project
ERIC H. HOLDER, JR. United States Attorney General AMY ELIZABETH POWELL United States Department of Justice Civil Division 20 Massachusetts Avenue N.W., Suite 5377 Washington, DC 20010 (202) 514-9836
S . AMANDA MARSHALL United States Attorney JAMES E. COX, JR. Assistant United States Attorney District of Oregon 1000 S.W. Third Avenue, Ste. 600 Portland, OR 97204 (503) 727-1026
Attorneys for Defendants
BROWN, Judge.
This matter comes before the Court on Defendants' ~lotion
(#85) for Partial Summary Judgment and Plaintiffs' Cross-Motion
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Case 3:10-cv-00750-BR Document 136 Filed 06/24/14 Page 4 of 65 Page ID#: 3162
(#91) for Partial Summary Judgment. The parties each seek summary judgment on Plaintiffs' Claim One of the Third Amended Complaint (#83) (that Defendants violated Plaintiffs' right to procedural due process under the Fifth Amendment to the United States Constitution) and Claim Three (that Defendants violated Plaintiffs' rights under the Administrative Procedure Act (APA), 5 U.S.C. § 706). In their claims Plaintiffs specifically challenge the adequacy of Defendants' redress procedures for persons on the No-Fly List (sometimes referred to as "the Listn). In addition to the parties' briefs, the record includes an Amicus Curiae Brief (#99) in Support of Plaintiffs' Cross-Motion filed by The Constitution Project.
On June 21, 2013, after the Court first heard oral argument on the parties' Motions, the Court took these issues under advisement. On August 28, 2013, the Court issued an Opinion and Order (#110) granting in part Plaintiffs' Cross-Motion, denying in part Defendants' Motion, and deferring ruling on the remaining portions of the pending Motions to permit additional development of the factual record and supplemental briefing. In that Opinion and Order the Court concluded Plaintiffs established the first factor under Mathews v. Eldridge, 424 U.S. 319, 335 (1976), because Plaintiffs had protected liberty interests in their rights to travel internationally by air and rights to be free from false governmental stigmatization that were affected by
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their inclusion on the No-Fly List. The Court, however, found
the record was not sufficiently developed to balance properly
Plaintiffs' protected liberty interests on the one hand against
the procedural protections on which Defendants rely, the utility
of additional safeguards, and the government interests at stake
in the remainder of the Mathews analysis. See id.
After the parties filed a Third Joint Statement of
Stipulated Facts (#114) and completed their respective
supplemental briefing, the Court heard oral argument on March 17,
2014, and again took the Motions under advisement.
For the reasons that follow,' the Court GRANTS Plaintiffs'
Cross-Motion (#91) 2 and DENIES Defendants' Motion (#85) .
1 In order to complete the procedural due-process analysis in this Opinion and Order that the Court began in its August 28, 2013, Opinion and Order (#110), the Court repeats and summarizes herein many of the facts and analyses from the prior Opinion and Order to ensure a clear and comprehensive record.
2 Plaintiffs also seek a declaratory judgment that Defendants' policies, practices, and customs violate the Fifth Amendment of the United States Constitution and the APA and also seek an injunction requiring Defendants (1) to remedy such violations, including removal of Plaintiffs' names from any watch list or database that prevents them from flying; (2) to provide Plaintiffs with notice of the reasons and bases for their inclusion on the No-Fly List; and (3) to provide Plaintiffs with the opportunity to contest inclusion on the List. Although the Court concludes Plaintiffs are entitled to summary judgment on the bases described herein, the issues concerning the substance of any declaratory judgment and/or injunction remain for further development
5 - OPINION AND ORDER

Case 3:10-cv-00750-BR Document 136 Filed 06/24/14 Page 6 of 65 Page ID#: 3164
PLAINTIFFS' CLAIMS Plaintiffs are citizens and lawful permanent residents of the United States (including four veterans of the United States Armed Forces) who were not allowed to board flights to or from the United States or over United States airspace. Plaintiffs believe they were denied boarding because they are on the No-Fly List, a government terrorist watch list of individuals who are prohibited from boarding commercial flights that will pass through or over United States airspace. Federal and/or local government officials told some Plaintiffs that they are on the No-Fly List. Each Plaintiff submitted applications for redress through the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP). Despite Plaintiffs' requests to officials and agencies for explanations as to why they were not permitted to board flights, explanations have not been provided and Plaintiffs do not know whether they will be permitted to fly in the future. Plaintiffs allege in their Third Amended Complaint (#83), Claim One, that Defendants have violated Plaintiffs' Fifth Amendment right to procedural due process because Defendants have not given Plaintiffs any post-deprivation notice nor any meaningful opportunity to contest their continued inclusion on the No-Fly List. In Claim Three Plaintiffs assert Defendants'
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Case 3:10-cv-00750-BR Document 136 Filed 06/24/14 Page 7 of 65 Page ID#: 3165

actions have been arbitrary and capricious and constitute "unlawful agency action" in violation of the APA.

PROCEDURAL BACKGROUND

Plaintiffs filed this action on June 30, 2010. On May 3,

2011, this Court issued an Order (#69) granting Defendants'

Motion (#43) to Dismiss for failure to join the Transportation

Security Administration (TSA) as an indispensable party and for

lack of subject-matter jurisdiction on the ground that the relief

Plaintiffs sought could only come from the appellate court in

accordance with 49 U.S.C. § 46110(a). Plaintiffs appealed the

Court's Order to the Ninth Circuit. See Latif v. Holder, 686

F. 3d 1122 (9ili Cir. 2012).

On July 26, 2012, the Ninth Circuit issued an opinion in

which it reversed this Court's decision and held "the district

court

. has original jurisdiction over Plaintiffs' claim that

the government failed to afford them an adequate opportunity to

contest their apparent inclusion on the List." Id. at 1130. The

Court also held "[49 U.S.C.] § 46110 presents no barrier to

adding TSA as an indispensable party." Id. The Ninth Circuit

issued its mandate on November 19, 2012, remanding the matter to

this Court.

As noted, the parties subsequently filed Motions for Partial

Summary Judgment.

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Case 3:10-cv-00750-BR Document 136 Filed 06/24/14 Page 8 of 65 Page ID#: 3166
FACTUAL BACKGROUND The following facts are undisputed unless otherwise noted: I. The No-Fly List The Federal Bureau of Investigation (FBI), which administers the Terrorist Screening Center (TSC), develops and maintains the federal government's consolidated Terrorist Screening Database (TSDB or sometimes referred to as "the watch list") . The No-Fly List is a subset of the TSDB. TSC provides the No-Fly List to TSA, a component of the Department of Homeland Security (DHS), for use in pre-screening airline passengers. TSC receives nominations for inclusion in the TSDB and generally accepts those nominations on a showing of "reasonable suspicion" that the individuals are known or suspected terrorists based on the totality of the information. TSC defines its reasonable-suspicion standard as requiring "articulable facts which, taken together with rational inferences, reasonably warrant the determination that an individual 'is known or suspected to be, or has been engaged in conduct constituting, in preparation for, in aid of or related to, terrorism or terrorist activities.'" Joint Statement of Stipulated Facts (#84) at 4. The government also has its own "Watchlisting Guidance" for internal law-enforcement and intelligence use, and the No-Fly
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Case 3:10-cv-00750-BR Document 136 Filed 06/24/14 Page 9 of 65 Page ID#: 3167
List has its own minimum substantive derogatory criteria. The government does not release these documents.' II. DHS TRIP Redress Process
DHS TRIP is the mechanism available for individuals to seek redress for any travel-related screening issues experienced at airports or while crossing United States borders; i.e., denial of or delayed airline boarding, denial of or delayed entry into or exit from the United States, or continuous referral for additional (secondary) screening.
A. Administrative Review Travelers who have faced such difficulties may submit a Traveler Inquiry Form to DHS TRIP online, by email, or by regular mail. The form prompts travelers to describe their complaint, to produce documentation relating to the issue, and to provide identification and their contact information. If the traveler is an exact or near match to an identity within the TSDB, DHS TRIP deems the complaint to be TSDB-related and forwards the traveler's complaint to TSC Redress for further review. On receipt of the complaint, TSC Redress reviews the available information, including the information and
3 The Court has reviewed the minimum substantive derogatory criteria for the No-Fly List and a summary of the guidelines contained within the Watchlisting Guidance submitted to the Court by Defendants ex parte and in camera. Because this information constitutes Sensitive Security Information, the Court does not refer to its substance in this Opinion and Order.
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Case 3:10-cv-00750-BR Document 136 Filed 06/24/14 Page 10 of 65 Page ID#: 3168
documentation provided by the traveler, and determines (1) whether the traveler is an exact match to an identity in the TSDB and (2) whether the traveler should continue to be in the TSDB if the traveler is an exact match. When making this determination, TSC coordinates with the agency that originally nominated the individual to be included in the TSDB. If the traveler has been misidentified as someone who is an exact match to an identity in the TSDB, TSC Redress informs DHS of the misidentification. DHS, in conjunction with any other relevant agency, then addresses the misidentification by correcting information in the traveler's records or taking other appropriate action.
When DHS and/or TSC finish their review, DHS TRIP sends a determination letter advising the traveler that DHS TRIP has completed its review. A DHS TRIP determination letter neither confirms nor denies that the complainant is in the TSDB or on the No-Fly List and does not provide any further details about why the complainant may or may not be in the TSDB or on the No-Fly List. In some cases a DHS TRIP determination letter advises the recipient that he or she can pursue an administrative appeal of the determination letter with TSA or can seek judicial review in
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a United States court of appeals pursuant to 49 U.S.C. § 46110. 4 Determination letters, however, do not provide assurances
about the complainant's ability to undertake future travel. In fact, DHS does not tell a complainant whether he or she is in the TSDB or a subset of the TSDB or give any explanation for inclusion on such a list at any point in the available administrative process. Thus, the complainant does not have an opportunity to contest or knowingly to offer corrections to the record on which any such determination may be based.
B. Judicial Review
When a final determination letter indicates the complainant may seek judicial review of the decisions represented in the letter, it does not advise whether the complainant is on the NoFly List or provide the legal or factual basis for such inclusion. If the complainant submits a petition for review to the appropriate court, the government furnishes the court (but not the petitioner} with the administrative record.
4 49 U.S.C. § 46ll0(a} provides in part: •[A] person disclosing a substantial interest in an order issued by the Secretary of Transportation . . in whole or in part under this part . . 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 ci~cuit in which the person resides or has its principal place of business." When the relief sought from judicial review of a DHS TRIP inquiry requires review and modification of a TSC order, original jurisdiction lies in the district court. Arjmand v. United States Dep't of Homeland Sec., 745 F. 3d 1300, 1302-03 (9th Cir. 2014}.
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If the administrative DHS TRIP review of a petitioner's redress file resulted in a final determination that the petitioner is not on the No-Fly List, the administrative record will inform the court of that fact. If, on the other hand, the administrative DHS TRIP review of a petitioner's redress file resulted in a final determination that the petitioner is and should remain on the No-Fly List, the administrative record will include the information that the government relied on to maintain that listing. The government may have obtained this information from human sources, foreign governments, and/or "signals intelligence.H The government may provide to the court ex parte and in camera information that is part of the administrative record and that the government has determined is classified, Sensitive Security Information, law-enforcement investigative information, and/or information otherwise privileged or protected from disclosure by statute or regulation.
The administrative record also includes any information that the petitioner submitted to the government as part of his or her DHS TRIP request, and the petitioner has access to that portion of the record. As noted, at no point during the judicial-review process does the government provide the petitioner with confirmation as to whether the petitioner is on the No-Fly List, set out the reasons for including petitioner's name on the List,
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or identify any information or evidence relied on to maintain the petitioner's name on the List.
For a petitioner who is on the No-Fly List, the court will review the administrative record submitted by the government in order to determine whether the government reasonably determined the petitioner satisfied ~he minimum substantive derogatory criteria for inclusion on the List. If after review the court determines the administrative record supports the petitioner's inclusion on the No-Fly List, it will deny the petition for review. If the court determines the administrative record contains insufficient evidence to satisfy the substantive derogatory criteria, however, the government takes the position that the court may remand the matter to the government for appropriate action. III. Plaintiffs' Pertinent History
Solely for purposes of the parties' Motions (#85, #91) presently before the Court, Defendants do not contest the following facts as asserted by Plaintiffs: 5
5 As a matter of policy, the United States government does not confirm or deny whether an individual is on the No-Fly List nor does it provide any other details as to that issue. Accordingly, Defendants have chosen not to refute Plaintiffs' allegations that they are on the No-Fly List for purposes of these Motions only. The Court, therefore, assumes for purposes of these Motions only that Plaintiffs' assertions regarding their inclusion on the No-Fly List are true.
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Plaintiffs are thirteen United States citizens who were denied boarding on flights over United States airspace after January 1, 2009, and who believe they are on the United States government's No-Fly List. Airline representatives, FBI agents, or other government officials told some Plaintiffs that they are on the No-Fly List.
Each Plaintiff filed DHS TRIP complaints after being denied boarding and each received a determination letter that does not confirm or deny any Plaintiff's name is on any terrorist watch list nor provide a reason for any Plaintiff to be included iti the TSDB or on the No-Fly List.
Many of these Plaintiffs cannot travel overseas by any mode other than air because such journeys by boat or by land would be cost-prohibitive, would be time-consuming to a degree that Plaintiffs could not take the necessary time off from work, or would put Plaintiffs at risk of interrogation and detention by foreign authorities. In addition, some Plaintiffs are not physically well enough to endure such infeasible modes of travel.
While Plaintiffs' circumstances are similar in many ways, each of their experiences and difficulties relating to and arising from their alleged inclusion on the No-Fly List is unique as set forth in their Declarations filed in support of their Motion and summarized briefly below.
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Avman Latif: Latif is a United States Marine Corps veteran and lives in Stone Mountain, Georgia, with his wife and children. Between November 2008 and April 2010 Latif and his family were living in Egypt. When Latif and his family attempted to return to the United States in April 2010, Latif was not allowed to board the first leg of their flight from Cairo to Madrid. One month later Latif was questioned by FBI agents and told he was on the No-Fly List. Because he was unable to board a flight to the United States, Latif's United States veteran disability benefits were reduced from $899.00 per month to zero as the result of being unable to attend the scheduled evaluations required to keep his benefits. In August 2010 Latif returned home after the United States government granted him a "one-time waiver" to fly to the United States. Because the waiver was for "one time," Latif cannot fly again, and therefore, he is unable to travel from the United States to Egypt to resume studies or to Saudi Arabia to perform a hajj, a religious pilgrimage and Islamic obligation.
Mohamed Sheikh Abdirahm Kariye: Kariye lives in Portland, Oregon, with his wife and children. In March 2010 Kariye was not allowed to board a flight from Portland to Amsterdam, was surrounded in public by government officials at the airport, and was told by an airline employee that he was on a government watch list. Because Kariye is prohibited from boarding flights out of
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the United States, he could not fly to visit his daughter who was studying in Dubai and cannot travel to Saudi Arabia to accompany his mother on the hajj pilgrimage.
Raymond Earl Knaeble IV: Knaeble is a United States Army veteran and lives in Chicago, Illinois. In 2006 Knaeble was working in Kuwait. In March 2010 Knaeble flew from Kuwait to Bogota, Colombia, to marry his wife, a Colombian citizen, and to spend time with her family. On March 14, 2010, Knaeble was not allowed to board his flight from Bogota to Miami. Knaeble was subsequently questioned numerous times by FBI agents in Colombia. Because Knaeble was unable to fly home for a required medical examination, his employer rescinded its job offer for a position in Qatar. Knaeble attempted to return to the United States through Mexico where he was detained for over 15 hours, questio~ed, and forced to return to Bogota. Knaeble eventually returned to the United States in August 2010 by traveling for 12 days from Santa Marta, Colombia, to Panama City and then to Mexicali, California. United States and foreign authorities detained, interrogated, and searched Knaeble on numerous occasions during that journey.
Faisal Nabin Kashem: In January 2010 Kashem traveled from the United States to Saudi Arabia to attend a two-year Arabic language-certification program and eventually to enroll in a four-year Islamic studies program. In June 2010 Kashem attempted
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to fly from Jeddah, Saudi Arabia, to New York for summer vacation; was denied boarding; and was told by an airline employee that he was on the No-Fly List. FBI agents later questioned Kashem and told him that he was on the No-Fly List. After Kashem joined this lawsuit, the United States government offered him a "one-time waivern to return to the United States, which he has so far declined because United States officials have refused to confirm that he will be able to return to Saudi Arabia to complete his studies.
Elias Mustafa Mohamed: In January 2010 Mohamed traveled from the United States to Saudi Arabia to attend a two-year Arabic language-certification program. In June 2010 Mohamed attempted to fly from Jeddah, Saudi Arabia, to his home in Seattle, Washington, via Washington, D.C., but he was not allowed to board his flight and was told by an airline employee that he was on the No-Fly List. FBI agents later questioned Mohamed and told him that he was on the No-Fly List. After joining this lawsuit, the United States government offered Mohamed a "one-timewaivern to return to the United States, which he has so far declined because United States officials have refused to confirm that he will be able to return to Saudi Arabia to complete his studies.
Steven William Washburn: Washburn is a United States Air Force veteran and lives in New Mexico. In February 2010 Washburn
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was not allowed to board a flight from Ireland to Boston. He later attempted to fly from Dublin to London to Mexico City. Although he was allowed to board the flight from Dublin to London, on the London to Mexico City flight the aircraft turned around 3~ hours after takeoff and returned to London where Washburn was detained. On numerous later occasions FBI agents interrogated Washburn. In May 2010 Washburn returned to New Mexico by taking a series of five flights that eventually landed in Juarez, Mexico, where he crossed the United States border on foot. During this trip Mexican officials detained and interrogated Washburn. In June 2012 an FBI agent told Washburn that the agent would help remove Washburn's name from the No-Fly List if he agreed to speak to the FBI. Since May 2010 Washburn has been separated from his wife who is in Ireland because she has been unable to obtain a visa to come to the United States and Washburn is unable to fly to Ireland.
Nagib Ali Ghaleb: Ghaleb lives in Oakland, California. In February 2010 Ghaleb attempted to travel from Yemen where his wife and children were living to San Francisco via Frankfurt. Ghaleb was not allowed to board his flight from Frankfurt to San Francisco. FBI agents later interrogated Ghaleb and offered to arrange to fly him back to the United States if he agreed to tell them who the "bad guys" were in Yemen and San Francisco and to provide names of people from his mosque and community. The
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agents threatened to have Ghaleb imprisoned. In May 2010 Gha1eb again attempted to return to the United States. He was able· to fly from Sana'a, Yemen, to Dubai, but he was not allowed to board his flight from Dubai to San Francisco. In July 2010 Ghaleb accepted a "one-time waiver" offered by the United States government to return to the United States. Because Ghaleb cannot fly, he cannot go to Yemen to be with his ill mother or to see his brothers or sisters.
Abdullatif Muthanna: Muthanna lives in Rochester, New York. In June 2009 Muthanna left Rochester to visit his wife and children who live in Yemen. In May 2010 Muthanna was to return to the United States on a flight from Aden, Yemen, to New York via Jeddah, Saudi Arabia, but he was not allowed to board his flight from Jeddah to New York. In September 2010 Muthanna accepted a "one-time waiver" offered by the United States government to return home. In June 2012 Muthanna wanted to be with his family and attempted to fly to Yemen, but he was not allowed to board a flight departing from New York. In August 2012 Muthanna attempted a journey of thirty-six days over land and by ship from Rochester to Yemen, but a ship captain refused to let Muthanna sail on a cargo freighter departing from Philadelphia on the recommendation of United States Customs and Border Protection. Muthanna was not allowed to board flights on
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four separate occasions before he finally boarded a flight from New York to Dubai in February 2013.
Mashaal Rana: Rana moved to Pakistan to pursue a master's degree in Islamic studies in 2009. In February 2010 Rana was not allowed to board a flight from Lahore, Pakistan, to New York. An FBI agent later interrogated Rana's brother, who lives in the United States. In October 2012 Rana was six-months pregnant and again attempted to return to New York to receive needed medical care and to deliver her child. Rana's brother worked with United States officials to clear Rana to fly. Rana received such clearance, but five hours before her flight was to depart she received notice that she would not be allowed to board. Rana was not able to find a safe alternative to travel to the United States before the birth of her child. In November 2010 the United States government offered Rana a "one-time waiver,• which she has not used because she fears she would not be able to return to Pakistan to be with her husband.
Ibraheim Y. Mashal: Mashal is a United States Marine Corps veteran. Mashal was not allowed to board a flight from Chicago, Illinois, to Spokane, Washington, and was told by an airline representative that he was on the No-Fly List. FBI agents later questioned Mashal and told him that his name would be removed from the No-Fly List and he would receive compensation if he helped the FBI by serving as an informant. When Mashal asked to
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have his attorney present before answering the FBI's questions, the agents ended the meeting. Mashal owns a dog-training business. Because he is unable to fly, he has lost clients; had to turn down business; and has been prevented from attending his sister-in-law's graduation in Hawaii, the wedding of a close friend, the funeral of a close friend, and fundraising events for the nonprofit organization that he founded.
Salah Ali Ahmed: Ahmed lives in Norcross, Georgia. In July 2010 Ahmed attempted to travel from Atlanta to Yemen via Frankfurt and was not allowed to board the flight in Atlanta. FBI agents later questioned Ahmed. Because he is unable to fly, Ahmed was unable to travel to Yemen in 2012 when his brother died and is unable to travel to Yemen to visit his extended family and to manage property that he owns in Yemen.
Amir Meshal: Meshal lives in Minnesota. In June 2009 Meshal was not allowed to board a flight from Irvine, California, to Newark, New Jersey. FBI agents told Meshal that he was on a government list that prohibits him from flying. In October 2010 FBI agents offered Meshal the opportunity to serve as a government informant in exchange for assistance in removing his name from the No-Fly List. Because Meshal is unable to fly, he. cannot visit his mother and extended family in Egypt.
Stephen Durga Persaud: Persaud lives in Irvine, California. In May 2010 Persaud was not allowed to board a flight from
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St. Thomas to Miami. An FBI agent told Persaud that he was on the No-Fly List, interrogated him, and told him the only way to get off the No-Fly List was to "talk to us." In June 2010 Persaud took a five-day boat trip from St. Thomas to Miami and a four-day train ride from Miami to Los Angeles so he could be home for the birth of his second child. Because he cannot fly, Persaud cannot travel to Saudi Arabia to perform the hajj pilgrimage.
STANDARDS
Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Washington fvlut. Ins. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). See also Fed. R. Civ. P. 56(a). The moving party must show the absence of a dispute as to a material fact. Rivera v. Philip Morris, Inc., 395 F. 3d 1142, 1146 (9to Cir. 2005). In response to a properly supported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial. I d. ''This burden is not a light one.
The non-moving party must do more than show there is some 'metaphysical doubt' as to the material facts at issue." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9'" Cir. 2010) (citation omitted).
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A dispute as to a material fact is genuine ''if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The court must draw all reasonable inferences in favor of the nonmoving party. Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010). "Summary judgment cannot be granted where contrary inferences may be dra•.vn from the evidence as to material issues." Easter v. Am. W. Fin., 381 F. 3d 948, 957 (9th Cir. 2004) (citation omitted). A "mere disagreement or bald assertion" that a genuine dispute as to a material fact exists "will not preclude the grant of summary judgment." Deering v. Lassen Cmty. Coll. Dist., No. 2: 07-CV1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011) (citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989)). When the nonmoving party's claims are factually implausible, that party must "come forward with more persuasive evidence than otherwise would be necessary." LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009) (citation omitted)
The substantive law governing a claim or a defense
determines whether a fact is material. Miller v. Glenn Miller
Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). If the resolution of a factual dispute would not affect the outcome of the claim, the court may grant summary judgment. Id.
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DISCUSSION As noted, Plaintiffs allege Defendants have violated Plaintiffs' Fifth Amendment rights to procedural due process because Defendants have not provided Plaintiffs with any postdeprivation notice nor any meaningful opportunity to contest their continued inclusion on the No-Fly List. Plaintiffs also allege Defendants violated Plaintiffs' rights under the APA. I. Claim One: Procedural Due-Process "Procedural due process imposes constraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." Mathews, 424 U.S. at 332. See also MacLean v. Dep't of Homeland Sec., 543 F.3d 1145, 1151 (9'h Cir. 2008). "The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Mathews, 424 U.S. at 333 (quoting Armstrong v. Manzo,
380 u.s. 545, 552 (1965)). See also \Iilla-Anguiano v. Holder,
727 F. 3d 873, 881 (9th Cir. 2013). Due process, however, "'is flexible and calls for such procedural protections as the particular situation demands.'" Mathews, 424 U.S. at 334 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). See also Wynar v. Douglas Cnty. School Dist., 728 F.3d 1062, 1073 (9th Cir. 2013).
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The court must weigh three factors when evaluating the sufficiency of procedural protections: (1) "the private interest that will be affected by the official actionn; (2) "the risk of an erroneous deprivation of such interest through the procedures used, and the probative value, if any, of additional or substitute procedural safeguardsn; and (3) "the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.n Mathews, 424 U.S. at 335. See also Vasquez v. Rackauckas, 734 F.3d 1025, 1044 (9th Cir. 2013) .
A. First Factor: Private Interest Plaintiffs contend the first factor under Mathews weighs in their favor because Defendants' inclusion of Plaintiffs on the No-Fly List has deprived Plaintiffs of their constitutionallyprotected liberty interests in travel and reputation.
1. Right to Travel "The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment.n Kent v. Dulles, 357 U.S. 116, 125 (1958). See also Eunique v. Powell, 302 F.3d 971, 976-77 (9th Cir. 2002). "[T]he [Supreme] Court has consistently treated the right to international travel as a liberty interest that is protected by the Due Process Clause of the Fifth Amendment.n
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DeNieva v. Reyes, 966 F.2d 480, 485 (9th Cir. 1992) (emphasis added). See also Eunique, 302 F.3d at 973.
Relying primarily on Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006), and Green v. Transp. Sec. Admin., 351 F. Supp. 2d 1119 (W.D. Wash. 2005), Defendants argue there is not a constitutional right to travel by airplane or by the most convenient form of travel. Defendants, therefore, contend Plaintiffs' rights to travel are not constitutionally burdened because the No-Fly List only prohibits travel by commercial aviation.
As the Court found in its Opinion and Order (#110), Gilmore and Green are distinguishable from this case for a number of reasons. First, those cases involve burdens on the right to interstate as opposed to international travel. Although there are viable alternatives to flying for domestic travel within the continental United States such as traveling by car or train, the Court disagrees with Defendants' contention that international air travel is a mere convenience in light of the realities of our modern world. Such an argument ignores the numerous reasons that an individual may have for wanting or needing to travel overseas quickly such as the birth of a child, the death of a loved one, a business opportunity, or a religious obligation. In Ibrahim v. Department of Homeland Security the court rejected an argument similar to the one that Defendants make in this case:
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While the Constitution does not ordinarily

guarantee the right to travel by any particular

form of transportation, given that other forms of

travel usually remain possible, the fact remains

that for international travel, air transport in

these modern times is practically the only form of

transportation, travel by ship being prohibitively

expensive.

Decisions involving domestic air

travel, such as the Gilmore case, are not on

point.

No. C 06-00545 WHA, 2012 WL 6652362, at *7 (N.D. Cal. Dec. 20,

2012) . Other cases Defendants cite are similarly

distinguishable. See, e.g., Miller v. Reed, 176 F.3d 1202 (9th

Cir. 1999) (restrictions on interstate travel as it relates to the

right to drive) ; Town of Southold v. Town of E. Hampton, 47 7 F. 3d

38 (2d Cir. 2007) (restrictions on interstate travel as it relates

to riding ferries); Cramer v. Skinner, 931 F.2d 1020 (5th Cir.

1991) (restrictions on interstate air service to one airport).

Second, the burdens imposed by the restrictions on the

plaintiffs in Green and Gilmore are far less than the alleged

burdens in this matter. Gilmore involved the requirement that

passengers present photo identification before boarding a

commercial flight and Green involved passengers being subjected

to enhanced security screening because they had been mistakenly

identified as being on a terrorist watch list. Unlike the

security-screening restrictions in Green and Gilmore, Plaintiffs'

placement on the No-Fly List operates as a complete and

indefinite ban on boarding commercial flights.

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The Court also disagrees with Defendants' assertion that all modes of transportation must be foreclosed before any infringement of an individual's due-process right to international travel is triggered. In DeNieva the Ninth Circuit found the plaintiff's protected liberty interest in her right to international travel had been infringed in that "retention of [her] passport infringed upon her ability to travel internationally" because "[w]ithout her passport, she could travel internationally only with great difficulty, if at all." DeNieva, 966 F.2d at 485 (emphasis added). In other words, her protected liberty interest in international travel had been infringed even though she may not have been completely banned from traveling.
As Plaintiffs' difficulties with international travel demonstrate, placement on the No-Fly List is a significant impediment to international travel. It is undisputed that inclusion on the No-Fly List completely bans listed persons from boarding commercial flights to or from the United States or over United States airspace. In addition, the realistic implications of being on the No-Fly List are far-reaching. For example, TSC shares watch-list information with 22 foreign governments, and United States Customs and Border Protection makes recommendations to ship captains as to whether a passenger poses a risk to transportation security. Thus, having one's name on the watch
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list can also result in interference with an individual's ability to travel by means other than commercial airlines as evidenced by some Plaintiffs' experiences as they attempted to travel internationaliy or return to the United States by sea and by land. In addition, the ban on air travel has exposed some Plaintiffs to extensive detention and interrogation at the hands of foreign authorities. With perhaps the exception of travel to a small number of countries in North and Central America, a prohibition on flying turns routine international travel into an odyssey that imposes significant logistical, economic, and physical demands on travelers. Thus, while the nature of the deprivation in this case may be different from the retention of the plaintiff's passport in DeNieva, placement on the No-Fly List, as noted, results in an individual being able to "travel
internationally only with great difficulty, if at all." Id.
Accordingly, the Court concludes on this record that Plaintiffs have constitutionally-protected liberty interests in traveling internationally by air, which are significantly affected by being placed on the No-Fly List.
The first step of the Mathews inquiry, however, does not end 'llith mere recognition of a liberty interest. The Court must also weigh the liberty interest deprived against the other factors. See Wilkinson v. Austin, 54 5 U.S. 209, 225 (2005) .
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As noted, placement on the No-Fly List renders most international travel very difficult or impossible. One need not look beyond the hardships suffered by Plaintiffs to understand the significance of the deprivation of the right to travel internationally. Due to the major burden imposed by inclusion on the No-Fly List, Plaintiffs have suffered significantly including long-term separation from spouses and children; the inability to access desired medical and prenatal care; the inability to pursue an education of their choosing; the inability to participate in important religious rites; loss of employment opportunities; loss of government entitlements; the inability to visit family; and the inability to attend important personal and family events such as graduations, weddings, and funerals. The Court concludes international travel is not a mere convenience or luxury in this modern world. Indeed, for many international travel is a necessary aspect of liberties sacred to members of a free society.
Accordingly, on this record the Court concludes Plaintiffs' inclusion on the No-Fly List constitutes a significant deprivation of their liberty interests in international travel.
2. Stigma-Plus -Reputation Plaintiffs also assert the first factor under Mathews has been satisfied because Plaintiffs have been stigmatized "in
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conjunction with their right to travel on the same terms as other travelers." First Am. Compl. 'l[ 141.
Under the "stigma-plus" doctrine, the Supreme Court has recognized a constitutionally-protected interest in "a person's good name, reputation, honor, or integrity." Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971). See also Miller v. Cal., 355 F. 3d 1172, 1178-79 (9th Cir. 2004). "To prevail on a claim under the stigma-plus doctrine, Plaintiffs must show (1) public disclosure of a stigmatizing statement by the government, the accuracy of which is contested; plus (2) the denial of some more tangible interest such as employment, or the alteration of a right or status recognized by state law." Green, 351 F. Supp. 2d at 1129 (emphasis added) (citing Ulrich v. City & Cnty. of San Francisco, 308 F. 3d 968, 982 (9th Cir. 2002) , and
Paul v. Davis, 424 u,s. 693, 701, 711 (1976)). "'The plus must
be a deprivation of a liberty or property interest by the state that directly affects the [Plaintiffs'] rights.'" Green, 351 F. Supp. 2d at 1129 (quoting Miller, 355 F. 3d at 1178). Under the "plus" prong, a plaintiff can show he has suffered a change of legal status if he "legally [cannot] do something that [he] could otherwise do." Miller, 355 F.3d at 1179 (discussing Constantineau, 400 U.S. 433 (1971)).
Plaintiffs contend, and Defendants do not dispute, that placement on the No-Fly List satisfies the "stigma" prong because
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it carries with it the stigma of being a suspected terrorist that is publicly disclosed to airline employees and other travelers near the ticket counter. According to Defendants, however, Plaintiffs cannot meet the "plusn prong of the test because (1) Plaintiffs do not have a right to travel by commercial airline and (2) there is not a "connectionn between the stigma and the "plusn in light of the fact that Plaintiffs have alternative means of travel.
As noted, the Court has concluded Plaintiffs have constitutionally-protected liberty interests in the right to travel internationally by air. In addition, the Court concludes Plaintiffs have satisfied the "plusn prong because being on the No-Fly List means Plaintiffs are legally barred from traveling by air at least to and from the United States and over United States airspace, which they would be able to do but for their inclusion on the No-Fly List. Thus, Plaintiffs have suffered a change in legal status because they "legally [cannot] do something that [they] otherwise could do.n Miller, 355 F.3d at 1179. The Court, therefore, concludes on this record that Plaintiffs have constitutionally-protected liberty interests in their reputations.
On the other hand, Plaintiffs' private interests at the heart of their stigma-plus claim are not as strong. Although placement on the No-Fly List carries with it the significant
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stigma of being a suspected terrorist and Defendants do not contest the fact that the public disclosure involved may be sufficient to satisfy the stigma-plus test, the Court notes the limited nature of the public disclosure in this case mitigates Plaintiffs' claims of injury to their reputations. Because the No-Fly List is not released publicly, the "publicu disclosure is limited to a relatively small group of individuals in the same area of the airport as the traveler when the traveler is denied boarding. Notwithstanding the fact that being denied boarding an airplane and, in some instances, being arrested or surrounded by security officials in an airport is doubtlessly stigmatizing, the Court notes the breadth and specificity of the public disclosure in this case is more limited than in the ordinary "stigma-plusu case. See, e.g., Paul v. Davis, 424 U.S. 693, 694-96 (1976) (distribution of a list and mug shots of "active shopliftersu to approximately 800 merchants); Constantineau, 400 U.S. at 435-36 (posting a list of the identities of those who have caused harm "by excessive drinkingu in all retail liquor outlets); Ulrich v. City & Cnty. of San Francisco, 308 F.3d 968, 973 (9th Cir. 2002) (filing of an adverse action report with the California Medical Board and the National Practitioner Data Bank detailing the reasons why a psychologist relinquished his privileges at a hospital). Nevertheless, the Court concludes the injury to Plaintiffs' reputations is sufficient to implicate
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Plaintiffs' constitutionally-protected interests in their reputations.
On this record the Court concludes Plaintiffs' claims raise constitutionally-protected liberty interests both in international air travel and in reputation, and, therefore, the first factor under the Mathews test weighs heavily in Plaintiffs' favor.
B. Second Factor: Risk of Erroneous Deprivation As noted, in the second Mathews factor the Court weighs "the risk of an erroneous deprivation of such interest through the procedures used, and the probative value, if any, of additional or substitute procedural safeguards." Mathews, 424 U.S. at 335. See also Vasquez, 734 F.3d at 1044.
1. Risk of Erroneous Deprivation When considering the risk of erroneous deprivation, the Court considers both the substantive standard that the government uses to make its decision as well as the procedural processes in place. See Santosky v. Kramer, 455 U.S. 745, 761-64 (1982) As noted, nominations to the TSDB are generally accepted based on a "reasonable suspicion" that requires "articulable facts which, taken together with .rational inferences, reasonably warrant the determination that an
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Case 3:10-cv-00750-BR Document 136 Filed 06/24/14 Page 35 of 65 Page ID#: 3193
individual" meets the substantive derogatory criteria. 6 Joint Statement of Stipulated Facts (#84) I 16. This "reasonable suspicion" standard is the same as the traditional reasonable suspicion standard commonly applied by the courts. See Terry v. Ohio, 392 U.S. 1, 21 (1968) (permitting investigatorystops based on a reasonable suspicion supported by "articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.") See also Ramirez v. City of Buena Park, 560 F. 3d 1012, 1020-21 (9th Cir. 2009). "The reasonable-suspicion standard is not a particularly high threshold to reach." United States v. Valdez-Vega, 738 F. 3d 1074, 1078 (9th Cir. 2013). Although reasonable suspicion requires more than "a mere 'hunch,'" the evidence available "need not rise to the level required for probable cause, and falls considerably short of satisfying a preponderance of the evidence standard." United States v. Arvizu, 534 U.S. 266, 274 (2002) (quoting Terry, 392 U.S. at 27).
It is against the backdrop of this substantive standard that the Court considers the risk of erroneous deprivation of the protected interests; i.e., the risk that travelers will be placed
6 As noted, the Court has reviewed in camera and considered the additional substantive derogatory criteria for the No-Fly List, but the Court does not refer to the substance of those criteria or the Watchlisting Guidance.
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on the No-Fly List under Defendants' procedures despite not having a connection to terrorism or terrorist activities.
Defendants argue there is little risk of erroneous deprivation because the TSC has implemented extensive quality controls to ensure that the TSDB includes only individuals who are properly placed there. Defendants point out that the TSDB is updated daily and audited for accuracy and currentness on a regular basis and that each entry into the TSDB receives individualized review if the individual files a DHS TRIP inquiry. Finally, Defendants argue judicial review of the DHS TRIP determination further diminishes the risk of erroneous deprivation.
Plaintiffs, in turn, cite a 2007 report by the United States Government Accountability Office and a 2009 report by the Department of Justice Office of the Inspector General that concludes the TSDB contains many errors and that the TSC has failed to take adequate steps to remove or to modify records in a timely manner even when necessary. In addition, Plaintiffs maintain the lack of notice of inclusion on the No-Fly List or the reasons therefor forces aggrieved travelers to guess about the evidence that they should submit in their defense and, by definition, creates a one-sided and insufficient record at both the administrative and judicial level that does not provide a
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genuine opportunity to present exculpatory evidence for the correction of errors.
Defendants point out that the information on which Plaintiffs rely to support their contention that the TSC has failed to modify adequately or to remove records when necessary is outdated and that the 2009 report indicated significant progress in maintenance of the TSDB. Although Defendants are correct that the TSC appears to have made improvements in ensuring the TSDB is current and accurate, Plaintiffs' contention that the TSDB carries with it a risk of error, nevertheless, carries significant weight. This point was recently reinforced in Ibrahim where the plaintiff was nominated to the No-Fly List in 2004 as a consequence of human error despite the fact that she did not pose a threat to national security. Ibrahim v. Dep' t of Homeland Sec., No. C 06-00545 WHA (#682) (N.D. Cal. Jan. 14, 2014) at 9. Although Ibrahim was taken off the No-Fly List shortly after the 2004 listing, the mistake itsel£ was not discovered until 2013 and Ibrahim continued to experience substantial difficulties through the date of the order in which Judge William Alsup ultimately ordered the government to purge references to the erroneous 2004 nomination in all of its databases. Id. at 16-25, 38. The fact that the TSDB could still contain erroneous information more than nine years after commission of the error
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belies Defendants' argument that the TSDB front-end safeguards substantially mitigate the risk of erroneous deprivation.
In any event, the DHS TRIP process suffers from an even more fundamental deficiency. As noted, the reasonable suspicion standard used to accept nominations to the TSDB is a low evidentiary threshold. This low standard is particularly significant in light of Defendants' refusal to reveal whether travelers who have been denied boarding and who submit DHS TRIP inquiries are on the No-Fly List and, if they are on the List, to provide the travelers with reasons for their inclusion on the List. "Without knowledge of a charge, even simple factual errors may go uncorrected despite potentially easy, ready, and persuasive explanations." Al Haramain Islamic Found., Inc. v. United States Dep't of Treasury, 686 F.3d 965, 982 (9th Cir. 2012) .
The availability of judicial review does little to cure this risk of error. While judicial review provides an independent examination of the existing administrative record, that review is of the same one-sided and potentially insufficient administrative record that TSC relied on in its listing decision without any additional meaningful opportunity for the aggrieved traveler to submit evidence intelligently in order to correct anticipated
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Case 3:10-cv-00750-BR Document 136 Filed 06/24/14 Page 39 of 65 Page ID#: 3197
errors in the record.' Moreover, judicial review only extends to whether the government reasonably determined the traveler meets
the minimum substantive derogatory criteria; i.e., the reasonable
suspicion standard. Thus, the fundamental flaw at the administrative-review stage (the combination of a one-sided record and a low evidentiary standard) carries over to the judicial-review stage.
Accordingly, on this record the Court concludes the DHS TRIP redress process, including the judicial review of DHS TRIP determinations, contains a high risk of erroneous deprivation of Plaintiffs' constitutionally-protected interests.
2. Utility of Substitute Procedural Safeguards In its analysis of the second Mathews factor, the Court also considers the probative value of additional procedural safeguards. Mathews, 424 U.S. at 335. Plaintiffs contend due process requires Defendants to provide post-deprivation notice of their placement on the No-Fly List; notice of the reasons they have been placed on the List; and a post-deprivation, in-person hearing to permit Plaintiffs to present exculpatory evidence. Notably, Plaintiffs argue these additional safeguards are only necessary after a traveler has been denied boarding. Defendants,
7 Because the risk of erroneous deprivation arises from the insufficiency of the administrative record rather than the reviewing court's analysis, the Ninth Circuit's holding in
Arjmand is inapplicable. 745 F.3d at 1302-03.
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Case 3:10-cv-00750-BR Document 136 Filed 06/24/14 Page 40 of 65 Page ID#: 3198
in turn, assert the current procedures are sufficient in light of the compelling government interests in national security and protection of classified information.
Clearly, additional procedural safeguards would provide significant probative value. See Mathews, 424 U.S. at 335. In particular, notice of inclusion on the No-Fly List through the DHS TRIP process after a traveler has been denied boarding would permit the complainant to make an intelligent decision about whether to pursue an administrative or judicial appeal. In addition, notice of the reasons for inclusion on the No-Fly List as well as an opportunity to present exculpatory evidence would help ensure the accuracy and completeness of the record to be considered at both the administrative and judicial stages and, at the very least, would provide aggrieved travelers the opportunity to correct "simple factual errors" with "potentially easy, ready, and persuasive explanations." See Al Haramain Islamic Found., 686 F.3d at 982. Thus, the Court concludes additional procedural safeguards would have significant probative value.
In summary, on this record the Court concludes the DHS TRIP process presently carries with it a high risk of erroneous deprivation in light of the low evidentiary standard required for placement on the No-Fly List together with the lack of a meaningful opportunity for individuals on the No-Fly List to provide exculpatory evidence in an effort to be taken off of the
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Case 3:10-cv-00750-BR Document 136 Filed 06/24/14 Page 41 of 65 Page ID#: 3199
List. Moreover, the Court finds additional procedural safeguards would have significant probative value in ensuring that individuals are not erroneously deprived of their constitutionally-protected liberty interests. Accordingly, the Court concludes the second Matthews factor weighs heavily in favor of Plaintiffs.
C. The Government's Interest When considering the third Mathews factor, the Court weighs "the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews, 424 U.S. at 335. See also Vasquez, 734 F.3d at 1044. "[T]he Government's interest in combating terrorism is an urgent objective of the highest order." Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010). "It is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig v. Agee, 453 U.S. 280, 307 (1981) (quoting Aptheker v. Sec'y of State, 378 U.S. 500, 509 (1964)). See also Al Haramain, 686 F.3d at 980 ("[T]he government's interest in national security cannot be understated."). "[T]he Constitution certainly does not require that the government take actions that would endanger national security." Al Haramain, 686 F.3d at 980. Moreover, the government has a
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"'compelling interest' in withholding national security information from unauthorized persons." Dep't of the Navy v. Egan, 484 U.S. 518, 527 (1988) (quoting Snepp v. United States, 444 U.s. 507, 509 n. 3 (1980)). "Certainly the United States enjoys a privilege in classified information affecting national security so strong that even a criminal defendant to whose defense such information is relevant cannot pierce that privilege absent a specific showing of materiality." Nat'l Council of Resistance of Iran v. Dep't of State, 251 F.3d 192, 207 (D.C. Cir. 2001) (NCORI). Obviously, the Court cannot and will not order Defendants to disclose classified information to Plaintiffs.
On this record the Court concludes the governmental interests in combating terrorism and protecting classified information are particularly compelling, and, viewed in isolation, the third Mathews factor weighs heavily in Defendants' favor.
D. Balancing the Mathews Factors "'[D)ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.'" Gilbert v. Hamar, 520 U.S. 924, 930 (1997) (quoting Cafeteria & Rest. Workers v. McElroy, 367 U.S. 886, 895 (1961)). See also Ching v. Mayorkas, 725 F.3d 1149, 1157 (9'h Cir. 2013). "'[D]ue process is flexible and calls for
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such procedural protections as the particular situation demands.'" Gilbert v. Hamar, 520 U.S. at 930 (quoting Morrisey v. Brewer, 408 U.S. 471, 481 (1972)). See also Ching, 725 F. 3d at 1157.
"'The fundamental requisite of due process of law is the opportunity to be heard."' Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)). See also In re Rains, 428 F.3d 893, 903 (9th Cir. 2005). "This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest." Mullane, 339 U.S. at 314. See also Circu v. Gonzalez, 450 F.3d 990, 993 (9th Cir. 2006). "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present objections." Id. See also Al Haramain, 686 F.3d at 980 ("[T]he Constitution [requires] that the government take reasonable measures to ensure basic fairness to the private party and that the government follow procedures reasonably designed to protect against erroneous deprivation of the private party's interests.").
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1. Applicable Caselaw Although balancing the Mathews factors is especially difficult in this case involving compelling interests on both sides, the Court, fortunately, does not have to paint on an empty canvass when balancing such interests. Indeed, several other courts have done so in circumstances that also required balancing a plaintiff's due-process right to contest the deprivation of important private interests with the government's interest ··in protecting national security and classified information. See, e.g., Al Haramain, 686 F.3d 965; Jifry v. Fed. Aviation Admin., 370 F.3d 1174 (D.C. Cir. 2004); NCORI, 251 F.3d 192 (D.C. Cir. 2001); Ibrahim, No. C 06-00545 WHA (#682); KindHearts for Charitable and Humanitarian Dev., Inc. v. Geithner, 647 F. Supp. 2d 857 (N.D. Ohio 2009).
a. Ibrahim v. Department o£ Home~and Security As noted, the plaintiff in Lbrahim was placed on the No-Fly List in November 2004 as a result of human error. Ibrahim, No. C 06-00545 WHA (#682), at 16. Nonetheless, Ibrahim's student visa was revoked in January 2005 because of "law enforcement interest in her as a potential terrorist." Id. at 17-18 (emphasis added). Even though Ibrahim was taken off of the No-Fly List shortly after her initial listing and the government had determined by February 10, 2006, that she had "no nexus to terrorism," she remained in the TSDB until September 18,
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2006. Id. at 16-18. Shortly after her removal from the TSDB, Ibrahim was placed back in the TSDB before once again being removed at the end of May 2007. Id. at 18-19. On October 20, 2009, however, Ibrahim was again nominated to the TSDB pursuant to a secret exception to the reasonable-suspicion standard. She was not, however, placed on the No-Fly List. Id. at 19.
When Ibrahim applied for a visa in 2009, her application was denied pursuant to 8 U.S.C. § 212(a)(3)(B), which is a section of the Immigration and Nationality Act that relates to terrorist activities. The word "Terrorist" was handwritten on the letter informing her of the denial. Id. at 20-22. Although Ibrahim again applied for a visa in 2013, it was denied even though the government conceded during litigation that Ibrahim did not pose a threat to national security. Id. at 18, 19-24.
In 2013 Ibrahim's daughter, a United States citizen, was not permitted to board a flight to the United States because her name was in a section of the TSDB in which travelers' admissibility to enter the United States is evaluated. Within six minutes, however, United States Customs and Border Patrol discovered the error and corrected it the next day, and Ibrahim's daughter was removed from the TSDB. Id. at 24-25.
The Ibrahim court applied the Mathews factors to Ibrahim's procedural due-process challenge and found: (1) Ibrahim's presence on the No-Fly List and subsequent events
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infringed on her right to travel, right to be free from incarceration, and right to be free from the stigma associated with her public denial of boarding an airplane and subsequent incarceration; (2) there was not merely the risk of erroneous deprivation, but an actual erroneous deprivation; and (3) the government interest was low because the government conceded Ibrahim did not pose a threat to national security. Id. at 27. The court ordered the defendants to purge from government databases all references to the erroneous 2004 listing and ordered the government to give Ibrahim the opportunity to apply for a discretionary waiver of visa ineligibility. After reviewing classified information, however, the court refused to overturn Ibrahim's visa denial. Id. at 27-28, 31-34.
b. Nationa~ Counai~ of Resistance of Iran (NCORI) v. Department of State
In NCORI two organizations sought review of the Secretary of State's actions designating them as ~foreign terrorist organizations" under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), 8 U.S.C. § 1189. 251 F.3d at 195-96. Such a designation under AEDPA results in the blocking of all funds that the organization has on deposit in United States banks, bans certain members and representatives of the organization from entry into the United States, and forbids all persons within the United States ~from 'knowingly providing material support or resources' to the organization." Id. at 196 46 - OPINION AND ORDER

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(quoting 18 U.S.C. § 2339B(a) (1)). During the administrative review of the State Department's determination, the Secretary of State "compiles an 'administrative record,'" but the Secretary does not provide the target organizations with notice of the materials used against them in that record, the opportunity to comment on such materials, or the opportunity to develop the administrative record further. Id. The administrative record may contain classified materials. Id. Judicial review is available, but it is based solely on the administrative record and the classified portion of the record that the government submits to the court ex parte and in camera. Id. at 196-97.
When analyzing the procedural due-process claim, the District of Columbia Circuit found the plaintiffs were deprived of their property interests and a stigma-plus liberty interest by their designation as foreign terrorist organizations. Id. at 203-05. After considering the risk of erroneous deprivation and the government's interests, the court held the Secretary must provide the organizations with "'notice of the action sought,' along with the opportunity to effectively be heard." Id. at 208 (quoting Mathews, 424 U.S. at 334). Accordingly, the court held the Secretary must (1) afford the target organizations pre-deprivation notice that they are under consideration for designation; (2) provide the organizations with notice of the unclassified portions of the administrative record
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on which the Secretary will rely in making the designation determination; and (3) provide the organizations with some "opportunity to present, at least in written form, such evidence as those entities may be able to produce to rebut the administrative record or otherwise negate the proposition that they are foreign terrorist organizations.• Id. at 208-09, Notably, however, the court left open "the possibility of the Secretary, in an appropriate case, demonstrating the necessity of withholding all notice and all opportunity to present evidence until the designation is already made.• Id. at 208.
c. KindHearts £or Charitab~e Humanitarian Deve~opment v. Geithner
In KindHearts the plaintiff challenged the Office of Foreign Assets Control's provisional designation of KindHearts as a Specially Designated Global Terrorist (SDGT). 647 F. Supp. 2d at 864. On February 19, 2006, the Office of Foreign Assets Control (OFAC) sent notice to KindHearts that OFAC had frozen all of Kindhearts's assets and property pending investigation into whether KindHearts was subject to designation as an SDGT. Id. at 866-67. The "blocking notice• reflected KindHearts was being investigated "for being controlled by, acting for or on behalf of, assisting in or providing financial or material support to, and/or otherwise being associated with Hamas.• Id. at 867.
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After ignoring a responsive letter from KindHearts and its request for a copy of the administrative record relied on in the investigation, OFAC provisionally designated KindHearts as an SDGT on May 25, 2007, more than a year after the initial asset freeze. Id. With that letter OFAC included 35 unclassified and nonprivileged documents; "acknowledged it also relied on other 'classified and privileged documents'u and provided a three-page summary of the classified evidence; and informed KindHearts that it could present any evidence or other information for OFAC's consideration in making the final determination. Id. at 868. After unsuccessfully requesting access to the full classified and unclassified record, KindHearts sent OFAC a 28-page preliminary submission on June 25, 2007, together with 1,369 pages of evidence to address OFAC's concerns to the best of Kindhearts' ability. Id. OFAC later misplaced Kindhearts' submission. I d. at 868 n.4.
KindHearts filed a lawsuit in which it argued, among other things, that "OFAC provided inadequate postdeprivation processu by failing "to specify any objective criteria for blocking KindHearts' assetsu and by failing to provide either pre- or post-deprivation process. Id. at 899. While finding other issues unripe for review on the merits, the court addressed the sufficiency of the procedural protections associated with the initial freeze of Kindhearts' assets.
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In a summary of the notice provided to KindHearts, the court noted "KindHearts remains largely uniformed about the basis for the government's actions." Id. at 904. The government's failure to provide notice was particularly important in that "[n]otice is to come from the government because it alone knows what it believes, and why what it believes justifies its action." Id. at 904 n.25 (emphasis in original). Accordingly, after weighing the Mathews factors, the court found OFAC failed to provide KindHearts with proper notice, and, therefore, "violated KindHearts' fundamental right to be told on what basis and for what reasons the government deprived it of all access to all its assets and shut down its operations." Id. at 906. In addition to the notice deficiencies, the court found OFAC "failed to provide a meaningful hearing, and to do so with sufficient promptness to moderate or avoid the consequences of delay." Id. at 907-08.
d. Ji£ry v. Federa~ Aviation Administration In Jifry the Federal Aviation Administration (FAA) revoked the airman certificates of Jifry and Zarie on the ground that the two pilots "presented 'a security risk to civil aviation or national security.'" Jifry, 370 F.3d at 1176-77. Jifry and Zarie were both nonresident alien pilots who used their FAA certificates to pilot aircraft abroad, but they had not piloted
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commercial aircraft in the United States for four and nine years respectively. Id. at 1177.
The airman certificate-revocation process involved both the TSA and FAA. Id. When the TSA finds a pilot poses a security threat, TSA issues an Initial Notification of Threat Assessment (Initial Notice) to the individual and serves that determination on the FAA. Id. The pilot may request "releasable materials upon which the Initial Notice 'lias based." Id. On receipt of the releaseable materials, the pilot has 15 days to submit a substantive response to the Initial Notice. Id. The TSA Deputy Administrator then reviews the record de novo and issues a Final Notification of Threat Assessment (Final Notice) if he finds the pilot poses a security threat, and the FAA revokes the pilot's certificate. Id. The pilot may appeal to the National Transportation Safety Board and then to the court of appeals. Id. at 1177-78.
Jifry and Zarie received the Initial Notice and requested the releaseable materials. The materials that TSA provided, however, did not include the factual basis for TSA's determination because it was based on classified information. Id. at 1178. Jifry and Zarie stated in their written response that "the 'lack of evidence and information about the basis for the determination contained in the TSA's response' made it impossible for them to specifically rebut the TSA's allegations,
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and [they denied) that they were security threats.n Id. The TSA Deputy Administrator issued a Final Notice, and the FAA subsequently revoked the pilots' certificates. Id.
Jifry and Zarie argued the procedures for revoking their certificates violated their rights to due process. After assuming Jifry and Zarie were entitled to constitutional protections as nonresident alien pilots with FAA certificates, the court found the balance of the Mathews factors favored the FAA. The court noted the pilots' interest in possessing FAA airman certificates to fly foreign aircraft outside of the United States "pales in significance to the government's security interests in preventing pilots from using civil aircraft as instruments of terror.n Id. at 1183. The court also noted "whatever the risk of erroneous deprivation, the pilots had the opportunity to file,a written reply to the TSA's initial determination and [the] independent de novo review of the entire administrative record by the Deputy Administrator of the TSA
. and ex parte, in camera judicial review of the recordn and that "substitute procedural safeguards may be impracticablen in light of the government's interest in protecting classified information. The court relied on NCORI for the proposition that the government needed to "'afford to the entities under consideration notice that the designation is impending,' and 'the opportunity to present, at least in written form, such
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evidence as those entities may be able to produce to rebut the administrative record or otherwise negate the proposition that they are foreign terrorist organizations.'" Id. at 459-60 (quoting NCORI, 251 F. 3d at 208-09). The court found the TSA and FAA's procedures satisfied this standard. Id. at 460.
e. Al Haramain Islamic Foundation v. United States Department o£ the Treasury
The issues in Al Haramain are similar to those in this case. In Al Haramain the Ninth Circuit addressed the sufficiency of the procedural safeguards in OFAC's investigation and designation of AHIF-Oregon as an SDGT. On February 19, 2004, OFAC issued a press release stating it had blocked the assets of AHIF-Oregon pending an investigation concerning the potential designation of AHIF-Oregon as an SDGT. Al Haramain, 686 F.3d at 973. OFAC did not provide notice before blocking AHIF-Oregon's assets nor did the press-release reveal the reasons for the investigation. OFAC and AHIF-Oregon exchanged "voluminous documents on a range of topics," the bulk of which concerned AHIF-Oregon's possible connections to and financial support of Chechen terrorism. Id. On September 9, 2004, OFAC issued a press-release declaring that it had designated AHIF-Oregon as an SDGT because of direct links between AHIF-Oregon and Osama bin Laden, violations of tax and money-laundering laws, attempts to conceal the movement of funds intended for Chechnya by falsely
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representing that those funds were for the purpose of purchasing a prayer house in Missouri, and re-appropriation of funds donated for the purpose of humanitarian relief to support mujahideen in Chechnya. Id. at 973-74.
On September 16, 2004, OFAC sent a letter advising AHIF-Oregon that it had been designated as an SDGT and that it could request administrative reconsideration. Id. at 974. In early 2005 AHIF-Oregon submitted additional documents for the administrative record and requested reconsideration of the designation. AHIF-Oregon asserted it did not have a connection to terrorism and provided a detailed explanation of its Chechen donation. I d. Thereafter it repeatedly sought an explanation for its designation and a determination of its request for reconsideration, but OFAC did not respond. Id. AHIF-Oregon then filed a lawsuit in which it asserted the procedural protections provided by OFAC violated AHIF-Oregon's procedural due-process rights under the United States Constitution.
In November 2007 after the commencement of AHIFOregon's lawsuit and more than three years after the letter informing AHIF-Oregon of its designation, OFAC sent AHIF-Oregon a letter advising that OFAC provisionally intended "to 'redesignate'n AHIF-Oregon and offering AHIF-Oregon a final opportunity to submit documentation for OFAC's consideration. Id. AHIF-Oregon again submitted nearly 1,000 pages of documents.
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Id. On February 6, 2008, OFAC sent AHIF-Oregon a letter stating OFAC had determined AHIF-Oregon continued to meet the criteria for designation as an SDGT and specified three reasons for the designation: (1) two designated persons owned or controlled AHIF-Oregon; (2) AHIF-Oregon acted for or on behalf of those designated persons; and (3) AHIF-Oregon operated as a branch office of the Al Haramain Islamic Foundation, an international charity that provided support for al-Qaeda and other SDGTs. Id.
The court found the procedural protections afforded to AHIF-Oregon did not satisfy due process. Applying the Mathews factors, the court found AHIF-Oregon's "property interest is significant" because the designation "completely shutters all [of AHIF-Oregon's] domestic operations" indefinitely. Id. at 979-80. On the other hand, the court found "the government's interest in national security cannot be understated." Id. at 980.
"[W]ith respect to the use of classified information without disclosure," the court observed "' [o] ne •.vould be hard pressed to design a procedure more likely to result in erroneous deprivations.'" Id. (quoting American-Arab AntiDiscrimination Comm. v. Reno, 70 F.3d 1045, 1069 (9th Cir. 1995)) . As to the probative value of additional procedural safeguards, the court found "[t]o the extent that an unclassified summary could provide helpful information, such as the subject
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matter of the agency's concerns, and to the extent that it is feasible to permit a lawyer with security clearance to view the classified information, the value of those methods seems undeniabl~.· Id. at 982-83.
The Al Haramain court noted the Ninth Circuit held in Gete v. Immigration and Naturalization Services, 121 F.3d 1285, 1287-91 (9'h Cir. 1997), that in the context of the government's seizure of vehicles from aliens who allegedly transported unauthorized aliens into the country, "[d]ue [p]rocess required the INS to disclose the 'factual bases for seizure[]' and 'the specific statutory provision allegedly violated.' • Al Haramain, 68 6 F. 3d at 987 (quoting Gete, 121 F. 3d at 1298). The court specifically rejected the defendants' argument that NCORI and a subsequent District of Columbia Circuit case, Holy Land Foundation for Relief and Development v. Ashcroft, 333 F.3d 156, 163-64 (D.C. Cir. 2003), stood for the proposition that the agency need not provide a statement of reasons for its investigation. The Ninth Circuit observed the District of Columbia Circuit did not address whether the agency was required to provide notice of the reasons for the deprivation in either NCORI or Holy Land Foundation. Al Haramain, 686 F.3d at 987-88. To the extent that NCORI and Holy Land Foundation could be interpreted as permitting the agency to avoid providing a statement of reasons for the deprivation, the Al Haramain court
56 - OPINION AND ORDER

Case 3:10-cv-00750-BR Document 136 Filed 06/24/14 Page 57 of 65 Page ID#: 3215
explicitly stated those cases were inconsistent with the Ninth Circuit's precedent in Gete. Id. at 988. Accordingly, the court held: ~In the absence of national security concerns, due process requires OFAC to present the entity with, at a minimum, a timely statement of reasons for the investigation." Id. at 987. As to national security concerns about providing a statement of reasons for the deprivation or permitting counsel with security clearance to view the classified information, the court ~recognize[d] that disclosure may not always be possible" and that the agency may in some cases withhold such mitigating measures after considering ~at a minimum, the nature and extent of the classified information, the nature and extent of the threat to national security, and the possible avenues available to allow the designated person to respond more effectively to the charges." Id. at 983-84.
2. Application to the DHS TRIP Process As noted, the Court finds Plaintiffs here have significant protected liberty interests at stake. Plaintiffs' interests in traveling internationally by air are substantially greater than the interest "in possessing FAA airman certificates to fly foreign aircraft outside the United States" as in Jifry. Although the private interests involved in Al Haramain, KindHearts, and NCORI are somewhat different from Plaintiffs' individual interests, the analysis in those three cases
57 - OPINION AND ORDER

Case 3:10-cv-00750-BR Document 136 Filed 06/24/14 Page 58 of 65 Page ID#: 3216
(particularly in Al Haramain) is more closely applicable to this case.
As in Al Haramain, "the government's interest in national security cannot be understated" in this case. Id. at 980. Nevertheless, the Ninth Circuit in Al Haramain found additional probative procedural protections were possible without jeopardizing the government's interest in national security. The adequacy of current procedures and potential additional procedures, however, affect the weight given to the governmental interest. See Al Haramain, 686 F. 3d at 983 ("In many cases, though, some information could be summarized or presented to a lawyer with a security clearance without implicating national security."). Thus, while the government's interest in national security in this case weighs heavily, the sufficiency of the DRS TRIP redress process ultimately turns on the procedural protections provided to Plaintiffs.
A comparison of the procedural protections provided in this case with those provided in Al Haramain, Jifry, KindHearts, and NCORI reveals the DRS TRIP process falls far short of satisfying the requirements of due process. In Al Haramain, Jifry, and KindHearts the defendants provided the plaintiffs with some materials relevant to the respective agencies' reasons for the deprivation at some point in the proceedings. In KindHearts the initial notice of the asset freeze advised<the plaintiff that
58 - OPINION AND ORDER

Case 3:10-cv-00750-BR Document 136 Filed 06/24/14 Page 59 of 65 Page ID#: 3217
the investigation concerned connections between KindHearts and Hamas and a later, provisional designation notice included the unclassified administrative record and a three-page summary of the classified evidence. 647 F. Supp. 2d at 866-68. In Jifry TSA provided the pilots with the Initial Notice and, upon request, the ftreleaseable materials" before issuing the Final Notice. 370 F.3d at 1177. Finally, in Al Haramain during the months after AHIF-Oregon's assets were initially frozen, OFAC and AHIF-Oregon ftexchanged voluminous documents," the ftbulk" of which ftconcerned AHIF-Oregon's possible connections to Chechen terrorism in Russia." Al Haramain, 686 F.3d at 973.
Unlike the plaintiffs in Al Haramain, KindHearts, and Jifry, however, Plaintiffs in this case were not given any notice of the reasons for their placement on the No-Fly List nor any evidence to support their inclusion on the No-Fly List. Indeed, the procedural protections provided to Plaintiffs through the DHS TRIP process fall substantially short of even the notice that the courts found insufficient in KindHearts and Al Haramain. In this respect, this case is similar to NCORI in which the plaintiffs were not afforded ftnotice of the materials used against [them], or a right to comment on such materials or [to develop the] administrative record." NCORI, 251 F.3d at 196.
Defendants' failure to provide any notice of the reasons for Plaintiffs' placement on the No-Fly List is
59 - OPINION AND ORDER

Case 3:10-cv-00750-BR Document 136 Filed 06/24/14 Page 60 of 65 Page ID#: 3218

especially important in light of the low evidentiary standard

required to place an individual in the TSDB in the first place.

When only an ex parte showing of reasonable suspicion supported

by "articulable facts

taken together with rational

inferences" is necessary to place an individual in the TSDB, it

is certainly possible, and probably likely, that "simple factual

errors" with "potentially easy, ready, and persuasive

explanations" could go uncorrected. See Al Haramain, 686 F.3d at

982. Thus, without proper notice and an opportunity to be heard,

an individual could be doomed to indefinite placement on the No-

Fly List. Moreover, there is nothing in the DHS TRIP

administrative or judicial-review procedures that remedies this

fundamental deficiency. The procedures afforded to Plaintiffs

through the DHS TRIP process are wholly ineffective and,

therefore, fall short of the "elementary and fundamental

requirement of due process" to be afforded "notice reasonably

calculated, under all the circumstances, to apprise interested

parties of the pendency of the action and afford them an

opportunity to present objections." See Mullane, 339 U.S. at

314.

Accordingly, on this record the Court concludes 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.

60 - OPINION AND ORDER

Case 3:10-cv-00750-BR Document 136 Filed 06/24/14 Page 61 of 65 Page ID#: 3219
3. Due-Process Requirements Although the Court holds Defendants must provide a new process that satisfies the constitutional requirements for due process, the Court concludes Defendants (and not the Court) must fashion new procedures that provide Plaintiffs with the requisite due process described herein without jeopardizing national security. Because due process requires Defendants to provide Plaintiffs (who have all been denied boarding flights and who have submitted DHS TRIP inquiries without success) with notice regarding their status on the No-Fly List and the reasons for placement on that List, it follows that such notice must be reasonably calculated to permit each Plaintiff to submit evidence relevant to the reasons for their respective inclusions on the No-Fly List. In addition, Defendants must include any responsive evidence that Plaintiffs submit in the record to be considered at both the administrative and judicial stages of review. As noted, such procedures could include, but are not limited to, the procedures identified by the Ninth Circuit in Al Haramain; that is, Defendants may choose to provide Plaintiffs with unclassified summaries of the reasons for their respective placement on the No-Fly List or disclose the classified reasons to properlycleared counsel.
61 - OPINION AND ORDER

Case 3:10-cv-00750-BR Document 136 Filed 06/24/14 Page 62 of 65 Page ID#: 3220
Although this Court cannot foreclose the possibility that in some cases such disclosures may be limited or withheld altogether because any such disclosure would create an undue risk to national security, Defendants must make such a determination on a case-by-case basis including consideration of, at a minimum, the factors outlined in Al Haramain; i.e., ( 1) the nature and extent of the classified information, (2) the nature and extent of the threat to national security, and (3) the possible avenues available to allow the Plaintiff to respond more effectively to the charges. See Al Haramain, 686 F.Jd at 984. Such a determination must be reviewable by the relevant court. II. Claim Three: Administrative Procedure Act
Plaintiffs also raise claims under 5 U.S.C. §§ 706(2) (A) and 706 (2) (B) of the APA.
A. Section 706(2) (A) Under Section 706 (2) (A) the court will only set aside an agency action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." An agency rule is arbitrary and capricious if
the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency
experti~e.
62 - OPINION AND ORDER

Case 3:10-cv-00750-BR Document 136 Filed 06/24/14 Page 63 of 65 Page ID#: 3221
Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
When prescreening passengers, Congress instructed the Executive to "establish a procedure to enable airline passengers, who are delayed or prohibited from boarding a flight because the advanced passenger prescreening system determined that they might pose a security threat, to appeal such determination and correct information contained in the system." 49 U.S. C.
§ 44903 (j) (2) (C) (iii) (I) (emphasis added). See also 49 u.s.c.
§ 44903 (j) (2) (G) (i) (the Executive "shall establish a timely and fair process for individuals identified as a threat . . to appeal to the [TSA] the determination and correct any erroneous information.") .
As discussed herein at length, the DHS TRIP process does not provide a meaningful mechanism for travelers who have been denied boarding to correct erroneous information in the government's terrorism databases. A traveler who has not been given any indication of the information that may be in the record does not have any way to correct that information. As a result, the DHS TRIP process "entirely fail[s] to consider an important aspect" of Congress's instructions with respect to travelers denied boarding because they are on the No-Fly List. See Motor Veh. Mfrs. Ass'n, 463 U.S. at 43.
63 - OPINION AND ORDER

Case 3:10-cv-00750-BR Document 136 Filed 06/24/14 Page 64 of 65 Page ID#: 3222

Accordingly, on this record the Court concludes the DHS TRIP process violates § 706 (2) (A) of the APA.

B.

Section 706(2) (B)

Under 5 U.S.C. § 706(2) (B) the court must set aside any agency action that is ~contrary to constitutional right, power, privilege, or immunity." As noted, the Court has concluded the DHS TRIP process violates Plaintiffs' rights to procedural due process under the United States Constitution. Accordingly, Plaintiffs' claim under§ 706(2) (B) merely mirrors Plaintiffs' procedural due-process claim.

Because the Court has already concluded the DHS TRIP process violates Plaintiffs' procedural due-process rights, the Court also concludes the DHS TRIP process violates § 706 (2) (B) of the APA.

C. Remedy

As noted, Plaintiffs' APA claims are closely related to Plaintiffs' procedural due-process claims, and the substantive deficiencies in the DHS TRIP redress process are the same under the APA as they are under procedural due process. Accordingly, the substitute procedures that Defendants select to remedy the violations of Plaintiffs' due-process rights, if sufficient, will also remedy the violations of Plaintiffs' rights under the APA.

64 - OPINION AND ORDER

Case 3:10-cv-00750-BR Document 136 Filed 06/24/14 Page 65 of 65 Page ID#: 3223
CONCLUSION For these reasons, the Court DENIES Defendants' Motion (#85) for Partial Summary Judgment and GRANTS Plaintiffs' Cross-Motion (#91) for Partial Summary Judgment as to Claims One and Three in Plaintiffs' Third Amended Complaint· (#83). The Court directs the parties to confer as to the next steps in this litigation and to file no later than July 14, 2014, a Joint Status Report with their respective proposals and schedules. The Court will schedule a Status Conference thereafter at which primary counsel for the parties should plan to attend in person. IT IS SO ORDERE~
DATED this }.LJ day of June, 2014.
United States District Judge
65 - OPINION AND ORDER

 
 U.S. Department of Justice
Civil Division Federal Programs Branch

Mailing Address

Overnight Delivery Address

P.O. Box 883

20 Massachusetts Ave., N.W.

Washington, D.C. 20044 Washington, D.C.

20001

October 10, 2014

Tel: (202) 514-9836 Fax: (202) 616-8470 Amy.Powell@usdoj.gov

VIA EMAIL

Hina Shamsi American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004

Re: Latif v. Holder, 3:10-cv-00750-BR (D. Oregon)

Dear Counsel,

Pursuant to the Defendants’ representation in the Status Report dated September 3, 2014, ECF No. 148, and the Case Management Order dated October 6, 2014, ECF No. 152, Defendants hereby notify you that the following individuals are not currently on the No Fly List as of the date of this letter:

Ayman Latif Elias Mustafa Mohamed Nagib Ali Ghaleb Abdullatif Muthanna Ibraheim Y Mashal Salah Ali Ahmed Mashaal Rana

At this time, apart from the information above, we make no other representations with respect to past or future travel. We have no further information to provide at this time.

Sincerely, /s/ Amy Powell

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

AYMAN LATIF; MOHAMED SHEIKH ABDIRAHM KARIYE; RAYMOND EARL KNAEBLE, IV; STEVEN WILLIAM WASHBURN; NAGIB ALI GHALEB; ABDULLATIF MUTHANNA; FAISAL NABIN KASHEM; ELIAS MUSTAFA MOHAMED; IBRAHEIM Y. MASHAL; SALAH ALI AHMED; AMIR MESHAL; STEPHEN DURGA PERSAUD; and MASHAAL RANA,
Plaintiffs,
v.
ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States; JAMES B. COMEY, in his official capacity as Director of the Federal Bureau of Investigation; and CHRISTOPHER M. PIEHOTA, in his official capacity as Director of the FBI Terrorist Screening Center,
Defendants.

3:10-cv-00750-BR ORDER

1 - ORDER

BROWN, Judge. This matter comes before the Court on the parties’ Joint
Filings (#181, #194) regarding the disposition of claims brought by Plaintiffs that are not presently on the No-Fly List. Having fully considered the parties’ respective positions, the Court enters a non-final Judgment in favor of Plaintiffs not on the NoFly List.
In their Third Amended Complaint (#83) Plaintiffs (all of whom had been denied boarding a commercial aircraft) brought three claims against Defendants concerning Plaintiffs’ alleged placement on the No-Fly List and the procedures that Defendants did or did not provide to Plaintiffs to challenge their placement on the List. In Claim One Plaintiffs alleged the procedures Defendants provided to Plaintiffs for challenging their placement on the No-Fly List were constitutionally deficient and, therefore, violated Plaintiffs’ procedural due-process rights under the Fifth Amendment to the United States Constitution. In Claim Two Plaintiffs alleged Defendants’ placement of Plaintiffs on the No-Fly List violated their Fifth Amendment rights to substantive due-process because Plaintiffs did not present any threat to commercial aviation. In Claim Three Plaintiffs alleged Defendants’ placement of Plaintiffs on the No-Fly List and the procedures provided for challenging their placement on the No-Fly List violated the Administrative Procedure Act, 5 U.S.C. §§ 702,
2 - ORDER

706. In its Opinion and Order (#136) issued June 24, 2014, the
Court granted Plaintiffs’ Cross-Motion for Partial Summary Judgment (#91) as to Plaintiffs’ Claims One and Three. The Court held, among other things, that Defendants must provide Plaintiffs with notice regarding their status on the No-Fly List (i.e., advise whether they were, in fact, on the No-Fly List) and, without creating an undue risk to national security, a statement of the reasons for including each Plaintiff on the No-Fly List that is reasonably calculated to permit each Plaintiff to submit evidence challenging their placement on the List.
After conducting a Rule 16 case-management conference with the parties, the Court issued a Case-Management Order (#152) on October 3, 2014, in which, inter alia, the Court ordered Defendants to disclose to the Court and to Plaintiffs by October 10, 2014, which Plaintiffs, if any, would not be precluded as of that date from boarding a commercial aircraft flying over United States airspace. The Court also informed the parties that it would not consider any additional substantive motions on the merits of Plaintiffs’ claims until Defendants had an opportunity to reconsider the remaining Plaintiffs’ DHS TRIP inquiries regarding their status on the No-Fly List under procedures consistent with the Court’s June 24, 2014, Opinion and Order. The Court set a January 31, 2015, deadline for Defendants
3 - ORDER

to complete that reconsideration. On October 10, 2014, Defendants informed the Court and
Plaintiffs that Plaintiffs Ayman Latif, Elias Mustafa Mohamed, Nagib Ali Ghaleb, Abdullatif Muthanna, Ibraheim Y. Mashal, Salah Ali Ahmed, and Mashaal Rana are not on the No-Fly List.
On February 13, 2015, after the parties submitted a Joint Status Report (#167) updating the Court as to the status of the case, the Court issued a Case-Management Order (#168) that, among other things, directed the parties to submit their proposals for a dispositive order confirming the conclusion of all claims by Plaintiffs who are not presently on the No-Fly List. On March 13, 2015, the parties filed a Joint Filing (#181) Regarding Disposition of Claims for Individuals Not on the No Fly List. After the Court sent to the parties a draft form of judgment and invited the parties to provide additional comment, the parties filed a Supplemental Joint Filing (#194).
Plaintiffs contend the Court should enter a judgment on Claims One and Three in favor of Plaintiffs who are not presently on the No-Fly List as a result of the Court’s grant of partial summary judgment in favor of Plaintiffs and Defendants’ subsequent disclosure that those Plaintiffs are not presently on the List.
Defendants, on the other hand, contend the Court should dismiss all of the claims of Plaintiffs who are not presently on
4 - ORDER

the No-Fly List because Defendants’ disclosure rendered their claims moot and, as a result, Defendants also assert this Court presently lacks jurisdiction to enter judgment in favor of Plaintiffs who are not on the No-Fly List.
It appears, however, that Defendants misunderstand the nature of the Court’s action in entering a non-final judgment in favor of Plaintiffs who are not on the No-Fly List. By entering such a non-final judgment, the Court is merely acknowledging the fact that the Court’s June 24, 2014, Opinion and Order has afforded those Plaintiffs a sufficient measure of relief that disposes of certain claims. Accordingly, the entry of this nonfinal judgment does not represent any new adjudication of the rights of any party before the Court and is done for the sole purpose of clarifying there are not any remaining unadjudicated claims for these Plaintiffs.
The Court emphasizes it does not enter this non-final judgment pursuant to Federal Rule of Civil Procedure 54(b) and will only enter a final judgment as to all claims and all parties at the conclusion of this action. Similarly, the entry of this non-final Judgment does not adjudge prevailing-party status or any other issue related to an eventual award of attorneys’ fees or court costs. The Court will address any petition for attorneys’ fees or costs filed by any party at the conclusion of this action.
5 - ORDER

CONCLUSION For these reasons, the Court ENTERS a non-final Judgment on Claims One and Three in Plaintiffs’ Third Amended Complaint in favor of Plaintiffs Ayman Latif, Elias Mustafa Mohamed, Nagib Ali Ghaleb, Abdullatif Muthanna, Ibraheim Y. Mashal, Salah Ali Ahmed, and Mashaal Rana, who are not on the No-Fly List. The Court also DISMISSES without prejudice Claim Two as to these Plaintiffs, who are not presently on the No-Fly List. IT IS SO ORDERED. DATED this 24th day of April, 2015.
/s/ Anna J. Brown ANNA J. BROWN United States District Judge
6 - ORDER

 
 Case 3:10-cv-00750-BR Document 144 Filed 08/04/14 Page 1 of 13
Steven M. Wilker, OSB No. 911882 Email: steven.wilker@tonkon.com Tonkon Torp LLP 1600 Pioneer Tower 888 SW 5th Avenue Portland, OR 97204 Tel.: (503) 802-2040; Fax: (503) 972-3740 Cooperating Attorney for the ACLU Foundation of Oregon
Hina Shamsi (Admitted pro hac vice) Email: hshamsi@aclu.org Hugh Handeyside (Admitted pro hac vice) Email: hhandeyside@aclu.org American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel.: (212) 519-2500; Fax: (212) 549-2654
Ahilan T. Arulanantham (Admitted pro hac vice) Email: aarulanantham@aclu-sc.org Jennifer Pasquarella (Admitted pro hac vice) Email: jpasquarella@aclu-sc.org ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 Tel.: (213) 977-9500; Fax: (213) 977-5297
Alan L. Schlosser (Admitted pro hac vice) Email: aschlosser@aclunc.org Julia Harumi Mass (Admitted pro hac vice) Email: jmass@aclunc.org ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111 Tel.: (415) 621-2493; Fax: (415) 255-8437
Alexandra F. Smith (Admitted pro hac vice) Email: asmith@aclu-nm.org ACLU Foundation of New Mexico P.O. Box 566 Albuquerque, NM 87103 Tel.: (505) 266-5915; Fax: (505) 266-5916
1 – PARTIES’ JOINT STATUS REPORT Latif v. Holder, Civil Case No. CV 10-00750-BR

Case 3:10-cv-00750-BR Document 144 Filed 08/04/14 Page 2 of 13
Mitchell P. Hurley (Admitted pro hac vice) Email: mhurley@akingump.com Christopher M. Egleson (Admitted pro hac vice) Email: cegleson@akingump.com Justin H. Bell (Admitted pro hac vice) Email: bellj@akingump.com Akin Gump Strauss Hauer & Feld LLP One Bryant Park New York, NY 10036 Tel.: (212) 872-1011; Fax: (212) 872-1002 Attorneys for Plaintiffs
STUART DELERY Assistant Attorney General Civil Division DIANE KELLEHER Assistant Branch Director Federal Programs Branch AMY POWELL amy.powell@usdoj.gov U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W Washington, D.C. 20001 Phone: (202) 514-9836 Fax: (202) 616-8470 Attorneys for Defendants
2 – PARTIES’ JOINT STATUS REPORT Latif v. Holder, Civil Case No. CV 10-00750-BR

Case 3:10-cv-00750-BR Document 144 Filed 08/04/14 Page 3 of 13

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

AYMAN LATIF, et al.,

Case 3:10-cv-00750-BR

Plaintiffs, v.
ERIC H. HOLDER, JR., et al.,

PARTIES’ JOINT STATUS REPORT

Defendants.

JOINT STATUS REPORT On June 24, 2014, this Court held 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.” Order at 60 (Docket #136). On that basis, the Court denied Defendants’ Motion for Partial Summary Judgment and granted Plaintiffs’ Cross-Motion for Partial Summary judgment as to Plaintiffs’ procedural due process claims under the Fifth Amendment and the Administrative Procedures Act. The Court concluded that “Defendants (and not the Court) must fashion new procedures,” Order at 61, and directed the parties to confer and file a Joint Status Report with their respective proposals and schedules. The parties have met and conferred telephonically and hereby submit their separate proposals for proceeding in this matter. I. DEFENDANTS’ PROPOSAL Defendants submit that the appropriate way forward in this litigation in the absence of an immediate appeal is for the Court to allow Defendants a voluntary remand of Plaintiffs’ individual claims for six months. During the next six months, Defendants intend to make
3 – PARTIES’ JOINT STATUS REPORT Latif v. Holder, Civil Case No. CV 10-00750-BR

Case 3:10-cv-00750-BR Document 144 Filed 08/04/14 Page 4 of 13
changes to the existing redress process regarding the No Fly List, in coordination with other agencies involved in aviation security screening, informed by the myriad legal and policy concerns that affect the Government’s administration of the No Fly List and the redress process, and with full consideration of the Court’s opinion.1 In so doing, the Government will endeavor to increase transparency for certain individuals denied boarding who believe they are on the No Fly List and have submitted DHS TRIP inquiries, consistent with the protection of national security and national security information, as well as transportation security.2 Once these new procedures have been developed, and also within the six months of the requested voluntary remand, Defendants intend to reopen and reconsider Plaintiffs’ redress requests using the new process.3 Should further litigation be necessary at the conclusion of those administrative proceedings, Defendants could then file a renewed dispositive motion on the basis of the application of these new procedures.
Plaintiffs’ proposal for the Court to conduct further remedial proceedings is contrary to well-established law and to this Court’s previous decision, committing these issues to the judgment of the Executive Branch. As the Court noted, Defendants are in the best position to consider and evaluate the benefits and costs of alternative or additional procedural safeguards and the interests of the Government in efficient adjudication, while giving due consideration to the national security implications of any new approaches to the administration of the No Fly List,
1 Defendants have 60 days to decide whether to seek further review of the Court’s June 24 order. No decision has been made yet. In the absence of an immediate appeal, a voluntary remand to Defendants is the most appropriate way to proceed. 2 Among the issues that the agencies will consider is how broadly new procedures should be applied. 3 Plaintiffs’ substantive claims, which have been held thus far while the Court resolved the procedural questions, should also be remanded or continue to be held in abeyance. A remand for additional process could moot those claims with respect to some or all of the Plaintiffs, could affect the substantive basis for any placement decision made with respect to any Plaintiffs who are on the No Fly List, and would likely clarify any issues for review.
4 – PARTIES’ JOINT STATUS REPORT Latif v. Holder, Civil Case No. CV 10-00750-BR

Case 3:10-cv-00750-BR Document 144 Filed 08/04/14 Page 5 of 13
as well as any opportunities for Plaintiffs to respond. See June 24, 2014 Mem. Op. at 61 (“Although the Court holds Defendants must provide a new process that satisfies the constitutional requirements for due process, the Court concludes Defendants (and not the Court) must fashion new procedures that provide Plaintiffs with the requisite due process described herein without jeopardizing national security.”).4 Neither the Court nor the Plaintiffs possess this perspective, and thus any new procedures should be crafted by Defendants in the first instance and tested administratively prior to any further litigation. Remand is consistent with settled principles of administrative law. See, e.g., SEC v. Chenery Corp., 332 U.S. 194 (1947); Fla. Power & Light v. Lorion, 470 U.S. 729, 744 (1985). Plaintiffs’ ability to challenge the new process in court, should they wish to do so, will not be prejudiced. Plaintiffs’ suggestion that the parties brief procedures that Defendants have neither devised nor applied puts the cart before the horse and would result in briefing that has little to no relation to the actual circumstances in this case.
Essentially, Plaintiffs are asking the Court to reconsider its view that the Defendants should fashion procedures in the first instance and decide precisely how the Government would apply these standards and oversee the administrative process as applied to Plaintiffs before the agencies have devised any revised procedures or applied them. Courts have routinely rejected this kind of judicial oversight in administrative process. See generally Fla. Power & Light v. Lorion, 470 U.S. 729, 744 (1985); Dexter v. Colvin, 731 F.3d 977 (9th Cir. 2013); National
4 See Rahman v. Chertoff, 530 F. 3d 622, 627-28 (7th Cir. 2008) (“The problem (from plaintiffs’ perspective) may be that Congress and the President worry at least as much about false negatives-that is, people who should be on a watch list but aren’t-as about false positives (people who are on the list but shouldn’t be, and people who aren't on the list but are mistaken for someone who is). Judges are good at dealing with false positives, because the victims come to court and narrate their grievances, but bad at dealing with false negatives, which are invisible. Any change that reduces the number of false positives on a terrorist watch list may well increase the number of false negatives. Political rather than judicial actors should determine the terms of trade between false positives and false negatives.”).
5 – PARTIES’ JOINT STATUS REPORT Latif v. Holder, Civil Case No. CV 10-00750-BR

Case 3:10-cv-00750-BR Document 144 Filed 08/04/14 Page 6 of 13
Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192, 209 (D.C. Cir. 2001). The Court declined to do this in its June 24 Order, and there is no reason for it to undertake such action now. Such concerns are heightened in the area of national security, where courts lack the expertise to make sensitive judgments about handling of classified information and prediction of future threats.5
In order to devise a revised process and to thereafter re-process the Plaintiffs’ individual redress requests, Defendants need sufficient time to do so. As explained in Defendants’ initial motion to dismiss, as well as in the stipulated facts and in this Court’s opinion, the redress process for individuals denied boarding who believe they are on a No Fly List involves a number of different federal agencies, some of which are not defendants in this action. In addition, revising administrative procedures involves important legal and policy questions and requires coordination between Defendants and these other agencies. A minimum of six months would be appropriate to undertake these efforts. This timeframe reflects the need to consult with the affected agencies, to consider the important legal and policy questions presented, and to ensure that the work is done correctly and comprehensively, while also allowing sufficient time to apply any new procedures to Plaintiffs. Plaintiffs’ characterization of undue delay is untrue and unfair; Defendants’ voluntary remand is a significant undertaking by multiple Government agencies to rework the existing administrative scheme and apply it to Plaintiffs.6 Defendants also propose to submit a status report to the Court and to Plaintiffs in three months with any information that can be provided at that time.
5 Moreover, Plaintiffs’ proposal potentially embroils this Court directly in consideration of classified and otherwise sensitive information, raising significant questions of privilege that are unnecessary for the Court to decide. See, e.g. Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010). 6 Plaintiffs’ proposal that Defendants submit briefing on new procedures less than two weeks after the deadline for Defendants’ decision on whether to seek further review of the Court’s Order is particularly unreasonable and presents a timeframe ill-suited to such a significant task.
6 – PARTIES’ JOINT STATUS REPORT Latif v. Holder, Civil Case No. CV 10-00750-BR

Case 3:10-cv-00750-BR Document 144 Filed 08/04/14 Page 7 of 13
II. PLAINTIFFS’ PROPOSAL
To promote judicial economy and the timely resolution of Plaintiffs’ constitutional
claims, Plaintiffs propose that the parties expeditiously submit briefing to this Court on the new
procedures the Court has ordered Defendants to fashion, in order to ensure that those procedures
provide Plaintiffs with “the requisite due process.” See Order at 61.
Still pending before this Court are Plaintiffs’ substantive due process claims and their requests for declaratory and injunctive relief.7 As the Court has recognized, “issues concerning
the substance of any declaratory judgment and/or injunction remain for further development.”
Order at 5. Thus, the adequacy and timing of new procedures through which Plaintiffs may
contest their placement on the No Fly List will inevitably come before the Court. Rather than
deferring that adjudication (and further delaying the process due to Plaintiffs), the parties should
address, and the Court should decide, the adequacy of Defendants’ proposed procedures now.
Doing so would allow the Court to adjudicate the remaining elements of Plaintiffs’ claims and
bring this matter to a definitive conclusion.
It bears emphasis that, as this Court has concluded,“[d]ue to the major burden imposed by inclusion on the No-Fly List, Plaintiffs have suffered significantly.” Order at 30.8 Plaintiffs
7 Plaintiffs disagree with Defendants’ assertion that they have 60 days to decide whether to seek further review of the Court’s Order. Orders granting partial summary judgment are not, absent special circumstances, appealable final orders under 28 U.S.C. § 1291 because such orders—like this Court’s Order—do not dispose of all claims and do not end the litigation on the merits. Williamson v. UNUM Life Ins. Co. of Am., 160 F.3d 1247, 1250 (9th Cir.1998). Defendants could have moved promptly to certify the Court’s Order for interlocutory review but have not done so. In any event, the standard for interlocutory certification is high and, Plaintiffs submit, is unlikely to be met here. See 28 U.S.C. § 1292(b); James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th Cir. 2002) (Section 1292(b) “must be construed narrowly”); United States v. Woodbury, 263 F.2d 784, 788 n.11 (9th Cir. 1959) (statute should be “applied sparingly and only in exceptional cases”). 8 Other courts have made similar findings regarding the harsh consequences of inclusion on the No Fly List. See, e.g., Gulet Mohamed v. Eric Holder, Jr., et al., No. 1:11-cv-50 (AJT/TRJ) (E.D. Va. Jan. 22, 2014) (finding that “[t]he impact on a citizen who cannot use a commercial aircraft is profound,” and “placement on the No Fly List is life defining and life restricting across a range of constitutionally protected activities and aspirations; and a No Fly List designation transforms a person into a second class
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continue to suffer the severe consequences of their inclusion on the No Fly List, over four years
after they initiated this action. Further delay would only compound that injury. Plaintiffs
continue to believe that this Court is best equipped to resolve Plaintiffs’ claims arising out of their inclusion on the No Fly List.9 Given the duration and severity of the restrictions on their
liberty, Plaintiffs submit that they should be given constitutionally adequate notice and a meaningful opportunity to be heard promptly, and within the context of this litigation. 10
Briefing on the new procedures—and the remedy now due—follows logically from the
Court’s Order: once it has been determined that the Due Process Clause applies and has been
violated, “the question remains what process is due.” See Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 541, 105 S. Ct. 1487, 1493 (1985); see also KindHearts for Charitable
Humanitarian Dev., Inc. v. Geithner, 710 F. Supp. 2d 637, 643 (N.D. Ohio 2010) (following
determination that government had violated charity’s procedural due process rights, court
requested additional briefing from parties on remedy). To that end, the parties should brief
now—and the Court should decide—the procedures and standards that would satisfy the general
requirements the Court set forth in its Order. Specifically, the parties’ briefing should address:
• The constitutionality of the substantive criteria and evidentiary standards that formed the basis for Plaintiffs’ inclusion on the No Fly List;
citizen, or worse”); Ibrahim v. Department of Homeland Security, et al., No. C06-0545-WHA (N.D. Cal. Jan. 14., 2014) (detailing the “litany of troubles” the plaintiff had endured because of her placement on the No Fly List). 9As the Ninth Circuit made clear in its jurisdictional ruling in this case, this Court has the authority to adjudicate the validity of Plaintiffs’ placement on the No Fly List. See Latif v. Holder, 686 F.3d 1122, 1129–30 (9th Cir. 2012). 10 On several occasions during the course of this litigation, Plaintiffs have urged that the due process inquiry should be bifurcated, and that the parties should have an opportunity to brief the issue of remedy if the Court finds a procedural due process violation. See Reply Mem. in Supp. of Pls.’ Cross-Mot. for Part. Summ. J. (Docket #104) at 13; Pls.’ Suppl. Mem. in Supp. of Cross-Mot. for Part. Summ. J. (Docket #121) at 7 n.2; Pls.’ Suppl. Reply Mem. in Supp. of Cross-Mot. for Part. Summ. J. (Docket #124) at 8. Now that the first part of the inquiry is complete, and the Court has found a procedural due process violation, the inquiry should proceed to briefing on remedy.
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Case 3:10-cv-00750-BR Document 144 Filed 08/04/14 Page 9 of 13
• What information constitutes the constitutionally-sufficient notice that Defendants must provide to Plaintiffs to contest their placement on the No Fly List; and
• The standard and procedures for this Court’s review of Plaintiffs’ inclusion on the No Fly List.
Plaintiffs propose that the parties submit briefs to Court on the following schedule: • Defendants’ brief, describing their proposed procedures, to be submitted on or before September 5, 2014; • Plaintiffs’ Response to be submitted on or before September 19, 2014; • any reply by Defendants to be submitted on or before September 26, 2014.
Thus, Plaintiffs’ proposal takes into account the Court’s ruling and gives it effect: Defendants would propose new procedures (including procedures related to the handling of sensitive or classified information, Order at 61-62); Plaintiffs would respond to those procedures; and, the court would adjudicate any disputes. Proceeding in this manner would serve Plaintiffs’ interests in just and expeditious resolution of their claims without compromising the government’s interest in protecting national security.
By contrast, Defendants’ proposal would not promote prompt and efficient resolution of the claims before this Court. As a threshold matter, the Court has directed Defendants to fashion a process to remedy the harm Plaintiffs have suffered, but Defendants still have not done so and propose several more months’ delay. The continued delay results in a continuing violation of Plaintiffs’ rights to due process.
Although Defendants’ proposal to fashion a new set of administrative procedures generally applicable to others on the No Fly List is both necessary and welcome, Defendants’ plan for drawing up that procedure should not hinder the resolution of Plaintiffs’ claims now. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 121 S. Ct. 2491, 2492 (2001) (holding that individual alien plaintiffs could bring habeas challenges to indefinite detention despite the government’s
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Case 3:10-cv-00750-BR Document 144 Filed 08/04/14 Page 10 of 13
assertion that the Court should defer to executive branch rulemaking); Ibrahim, No. C06-0545WHA (Jan. 14., 2014) (concluding that DHS TRIP is inadequate and setting forth the specific process due to the plaintiff). And for the reasons set forth above—the need for and ability of the Court to adjudicate Plaintiffs’ claims that are before it—there is no need for Plaintiffs to go through another round of administrative review.
Moreover, Defendants’ invocation of “settled principles of administrative law” is inapposite and unsupported by their case citations. Each of those cases involved review of adverse agency action. See SEC v. Chenery Corp., 332 U.S. 194 (1947) (disapproval by Securities and Exchange Commission of regulated utility’s reorganization plan); Fla. Power & Light v. Lorion, 470 U.S. 729 (1985) (denial by Nuclear Regulatory Commission of petition to suspend operating license); Dexter v. Colvin, 731 F.3d 977 (9th Cir. 2013) (denial by Social Security Administration of request for hearing on application for benefits); National Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192 (D.C. Cir. 2001) (designation of organizations by State Department as “foreign terrorist organizations”). This case is very different: it is a constitutional challenge to a set of agency procedures, which the Court has now concluded are “wholly ineffective.” Order at 60. Defendants’ theory may have been valid if they had won the jurisdictional arguments they made to the Ninth Circuit—but they did not. See Latif, 686 F.3d at 1130 (remanding Plaintiffs’ constitutional procedural challenge “for such further proceedings as may be required to make an adequate record to support consideration of their claims”). There is no record of agency action before the Court, and thus no basis for the Court to remand this case for “additional investigation or explanation.” See Fla. Power & Light, 470 U.S. at 744.
Finally and relatedly, Plaintiffs fear that leaving the adequacy of the procedures to Defendants will only result in additional delays and a continuation of the limbo in which
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Case 3:10-cv-00750-BR Document 144 Filed 08/04/14 Page 11 of 13
Plaintiffs have languished for years. Defendants’ proposal that they be permitted to amend their constitutionally-deficient process in a manner that is as unilateral, one-sided, and nonparticipatory as the original process increases the likelihood that the new process will itself be subject to challenge, whether by Plaintiffs or others. Given the history of this litigation to date, it is critical that Defendants’ proposed process with respect to Plaintiffs include input from Plaintiffs and direction from the Court, so as to satisfy the requirements set forth in the Order. Otherwise, it is virtually certain that six months from now, Plaintiffs will be in exactly the same position they are in today—before this Court, litigating the adequacy of the procedures Defendants devise.
Plaintiffs therefore respectfully request that the Court order the parties to submit briefing on the procedures Defendants propose—the logical and necessary next step in adjudicating Plaintiffs’ claims.
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Case 3:10-cv-00750-BR Document 144 Filed 08/04/14 Page 12 of 13

Dated: August 4, 2014

Respectfully Submitted,

Steven M. Wilker, OSB No. 911882 Email: steven.wilker@tonkon.com Tonkon Torp LLP 1600 Pioneer Tower 888 SW 5th Avenue Portland, OR 97204 Tel.: (503) 802-2040; Fax: (503) 972-3740 Cooperating Attorney for the ACLU Foundation of Oregon
s/ Hina Shamsi Hina Shamsi (Admitted pro hac vice) Email: hshamsi@aclu.org Hugh Handeyside (Admitted pro hac vice) Email: hhandeyside@aclu.org American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel.: (212) 519-2500; Fax: (212) 549-2654
Ahilan T. Arulanantham (Admitted pro hac vice) Email: aarulanantham@aclu-sc.org Jennifer Pasquarella (Admitted pro hac vice) Email: jpasquarella@aclu-sc.org ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 Tel.: (213) 977-9500; Fax: (213) 977-5297
Alan L. Schlosser (Admitted pro hac vice) Email: aschlosser@aclunc.org Julia Harumi Mass (Admitted pro hac vice) Email: jmass@aclunc.org ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111 Tel.: (415) 621-2493; Fax: (415) 255-8437
12 – PARTIES’ JOINT STATUS REPORT Latif v. Holder, Civil Case No. CV 10-00750-BR

STUART DELERY Assistant Attorney General
DIANE KELLEHER Assistant Branch Director Federal Programs Branch
s/ Amy Powell
AMY POWELL E-Mail: amy.powell@usdoj.gov U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20001 Tel: (202) 514-9836 Fax: (202) 616-8470
Attorneys for Defendants

Case 3:10-cv-00750-BR Document 144 Filed 08/04/14 Page 13 of 13
Alexandra F. Smith (Admitted pro hac vice) Email: asmith@aclu-nm.org ACLU Foundation of New Mexico P.O. Box 566 Albuquerque, NM 87103 Tel.: (505) 266-5915; Fax: (505) 266-5916 Mitchell P. Hurley (Admitted pro hac vice) Email: mhurley@akingump.com Christopher M. Egleson (Admitted pro hac vice) Email: cegleson@akingump.com Justin H. Bell (Admitted pro hac vice) Email: bellj@akingump.com Akin Gump Strauss Hauer & Feld LLP One Bryant Park New York, NY 10036 Tel.: (212) 872-1011; Fax: (212) 872-1002 Attorneys for Plaintiffs
13 – PARTIES’ JOINT STATUS REPORT Latif v. Holder, Civil Case No. CV 10-00750-BR

 
 Case 3:10-cv-00750-BR Document 157 Filed 12/19/14 Page 1 of 4

JOYCE R. BRANDA Acting Assistant Attorney General Civil Division
DIANE KELLEHER Assistant Branch Director Federal Programs Branch
AMY POWELL BRIGHAM BOWEN amy.powell@usdoj.gov brigham.bowen@usdoj.gov U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W Washington, D.C. 20001 Phone: (202) 514-9836
(202) 514-6289 Fax: (202) 616-8470
Attorneys for Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

AYMAN LATIF, et al.,

Case 3:10-cv-00750-BR

Plaintiffs, v.
ERIC H. HOLDER, JR., et al.,

DEFENDANTS’ STATUS REPORT

Defendants.

DEFENDANTS’ STATUS REPORT In accordance with the Court’s October 6, 2014 Case Management Order, ECF No. 152, Defendants hereby submit this status report to inform the Court that: (1) interim substantive reviews of ongoing No Fly status of those Plaintiffs remaining on the No Fly List have been completed, see id. ¶ 3; (2) DHS TRIP has sent those Plaintiffs who remain on the No Fly List
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notice letters during the week of November 24, 2014 (in which responses were requested from Plaintiffs during the week of December 15, 2014), see id. ¶ 4; and (3) Plaintiffs are in the process of providing these responses. Defendants expect that, barring further delays in receiving stilloutstanding submissions from Plaintiffs, the final substantive reconsideration of Plaintiffs’ reopened DHS TRIP redress inquiries will be completed on or before January 16, 2015, as contemplated by the Court’s Order. Id. ¶ 6. To the extent additional time is required, Defendants will so inform the Court at the earliest opportunity.
In addition to the above information, Ms. Shamsi and Mr. Handeyside, counsel for Plaintiffs from the ACLU, have requested that Defendants include the statement below in this report. Defendants disagree with Plaintiffs’ arguments that the revised procedures are insufficient. In any event, (1) Plaintiffs’ arguments were submitted to DHS TRIP and are being considered administratively; and (2) Defendants also agree with Plaintiffs that whatever disagreements remain outstanding at the conclusion of the DHS TRIP reconsideration process will be appropriate for the Court’s consideration at that time.
Plaintiffs’ Statement: After reviewing the DHS TRIP letters sent to the Plaintiffs in this case who remain on the No Fly List, Plaintiffs concluded that the revised No Fly List redress system remains inadequate and requested that Defendants (1) provide necessary procedural protections as part of the administrative process, (2) disclose additional information related to the bases for Plaintiffs’ inclusion on the No Fly List, and (3) apply a constitutionally-compliant standard for inclusion on the List. Plaintiffs are mindful of the Court’s instructions that the parties complete the administrative review of Plaintiffs’ No Fly List status, and are continuing to participate in that review with the expectation that any remaining disputes about the adequacy of
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the revised redress system will be adjudicated by the court at the conclusion of the administrative phase.

Dated: December 19, 2014

Respectfully Submitted,

JOYCE R. BRANDA Acting Assistant Attorney General
DIANE KELLEHER Assistant Branch Director Federal Programs Branch
s/ Brigham J. Bowen
AMY POWELL BRIGHAM J. BOWEN amy.powell@usdoj.gov brigham.bowen@usdoj.gov U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20001 Tel: (202) 514-9836
(202) 514-6289 Fax: (202) 616-8470
Attorneys for Defendants

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Case 3:10-cv-00750-BR Document 157 Filed 12/19/14 Page 4 of 4
CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing motion was delivered to all counsel of record via the Court’s ECF notification system.
s/ Brigham J. Bowen BRIGHAM J. BOWEN
4 – DEFS.’ STATUS RPT. Latif v. Holder, Civil Case No. CV 10-00750-BR

 
 Case 3:10-cv-00750-BR Document 168 Filed 02/13/15 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

AYMAN LATIF; MOHAMED SHEIKH ABDIRAHM KARIYE; RAYMOND EARL KNAEBLE, IV; STEVEN WILLIAM WASHBURN; NAGIB ALI GHALEB; ABDULLATIF MUTHANNA; FAISAL NABIN KASHEM; ELIAS MUSTAFA MOHAMED; IBRAHEIM Y. MASHAL; SALAH ALI AHMED; AMIR MESHAL; STEPHEN DURGA PERSAUD; and MASHAAL RANA,
Plaintiffs,
v.
ERICH. HOLDER, JR., in his official capacity as Attorney General of the United States; JAMES B. COMEY, in his official capacity as Director of the Federal Bureau of Investigation; and CHRISTOPHER M. PIEHOTA, in his official capacity as Director of the FBI Terrorist Screening Center,
Defendants.

3:10-cv-00750-BR CASE-MANAGEMENT ORDER

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Case 3:10-cv-00750-BR Document 168 Filed 02/13/15 Page 2 of 10
BROWN, Judge. Having weighed the competing case-management proposals set
forth by the parties in their Joint Status Report (#167) and in the exercise of its discretion pursuant to Federal Rule of Civil Procedure 16, the Court enters this Order to schedule the next steps and further proceedings in this litigation.
The Court finds impractical Defendants 1 proposal to undertake dispositive-motion practice that simultaneously addresses Plaintiffs 1 ongoing objections to the constitutional sufficiency of the most-recent redress process that Defendants used to reconsider Plaintiffs 1 No-Fly List status and Plaintiffs 1 substantive due-process challenges to the merits of their continued inclusion on the No-Fly List. Until the Court resolves the six Plaintiffs 1 contentions that Defendants still have not provided a redress process compliant with the standards cited in the Court 1 s June 24, 2014, Opinion and Order (#152), the Court concludes it would be inefficient and needlessly complicated to attempt to evaluate the merits-based, Plaintiff-specific result of each such process in the same dispositive motion.
Accordingly, this Case-Management Order anticipates a Plaintiff-specific, dispositive-motion schedule by which the parties first have a fair opportunity to litigate to resolution
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the question whether each of the six objecting Plaintiffs has, in fact, received a redress process compliant with the standards cited in the Court's June 24, 2014, Opinion and Order. 1 If the motions establish Defendants' reconsideration process was constitutionally sufficient as to any Plaintiff's DHS TRIP inquiry, the next step will be to address the parties' disputes about the merits of Defendants' decision to continue to include that Plaintiff on the No-Fly List. If any Plaintiff, however, establishes Defendants' recent redress process still falls short of the standards cited in the Court's Opinion and Order, it may be necessary for the Court to require Defendants to provide yet another reconsideration for that Plaintiff before the Court can consider that Plaintiff's substantive claims. With six Plaintiffs objecting to the process and results and each deserving individualized consideration, the Court is unwilling to force a combined dispositive-motion process that is impractical and unnecessarily complicated.
1 Plaintiffs incorrectly assert the Court must "adjudicate the specific process Plaintiffs are due" in the next round of motions. See Joint Status Report (#167) at 2. The Court continues to decline to require a particular process. Nonetheless, for each of the objecting Plaintiffs, the question remains whether Defendants' recent redress processes complied with the standards cited in the June 24, 2014, Opinion and Order.
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Case-Management Order 1. In addition to cross-motions addressing the issues common to
all Plaintiffs, the Court requires individualized, Plaintiff-specific motions and supporting materials. The Court also requires a Joint Statement of Agreed Facts as to the issues common to all Plaintiffs and separate Joint Statements of Agreed Facts as to each Plaintiff-specific motion. The Court agrees Plaintiffs should be the initial moving parties for these cross-motions and that it is likely there will be legal arguments common to all Plaintiffs that can be efficiently addressed in a combined filing for all Plaintiffs. Accordingly, Plaintiffs must file a single, Combined Motion for Summary Judgment and a Memorandum in Support covering the legal arguments common to all Plaintiffs. In addition, to the extent that there are Plaintiff-specific arguments concerning the adequacy of Defendants' new process as applied to that Plaintiff, the Court expects each such Plaintiff to make an individualized factual showing as to how that process was inadequate as applied. Accordingly, to ensure clarity of the record for each moving Plaintiff, the Court requires a separate, individualized Motion for Summary Judgment and Memorandum in Support by any Plaintiff who intends to rely on Plaintiffspecific, asserted inadequacies in the recent redress process. Before the filing of any dispositive motion, however, and to minimize the need for any party to prove the undisputed nature of a factual matter involving the recent redress process for
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purposes of Federal Rule of Civil Procedure Rule 56, the Court

requires the parties to confer and to file a Joint Statement of

Agreed Facts as to those facts common to all Plaintiffs and to

file separate, Plaintiff-Specific Joint Statements of Agreed

Facts applicable to those Plaintiffs who also intend to rely on

specific, asserted inadequacies in their individual redress

processes.

To the extent that any party asserts the Court should deem

additional facts as undisputed for purposes of Rule 56, that

party may make an evidentiary showing with the filing of that

party's motion subject to the submission of opposing evidence in

due course.

Having considered and adjusted the parties' proposed filing

schedule to take into account additional filings that the parties

may not have anticipated, the Court sets the following schedule:

March 13, 2015:

1) Joint Combined Statement of Agreed Facts Relevant to All Plaintiffs; and

2) Separate Plaintiff-Specific Joint Statements of Agreed Facts.

March 27, 2015:

1) Plaintiffs' Combined Motion for Summary Judgment and Memorandum in Support (not to exceed 35 pages) as to those issues common to all Plaintiffs; and

2) Each Plaintiff's separate PlaintiffSpecific Motions for Summary Judgment and Memoranda in Support (not to exceed 10 pages each) .

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April 27, 2015:

1) Defendants' Opposition to Plaintiffs' Combined Motion for Summary Judgment (not to exceed 35 pages) ;

2) Defendants' separate Oppositions to each Plaintiff's separate Plaintiff-Specific Motions for Summary Judgment (not to exceed 10 pages each) ;

3) Defendants' Combined Cross-Motion for Summary Judgment and Memorandum in Support (not to exceed 35 pages) as to the issues common to all Plaintiffs; and

4) Defendants' separate Plaintiff-Specific Cross-Motions for Summary Judgment and Memoranda in Support (not to exceed 10 pages each) .

May 22, 2015:

1) Plaintiffs' Reply Memorandum in Support of Plaintiffs' Combined Motion for Summary Judgment (not to exceed 35 pages) ;

2) Each Plaintiff's separate PlaintiffSpecific Reply Memorandum in Support of that Plaintiff's separate Motion for Summary Judgment (not to exceed 7 pages each) ;

3) Plaintiffs' Opposition to Defendants' Combined Cross-Motion for Summary Judgment (not to exceed 35 pages) ; and

4) Each Plaintiff's separate Opposition to Defendants' separate Plaintiff-Specific Motions for Summary Judgment (not to exceed 10 pages each) .

June 15, 2015:

1) Defendants' Reply Memorandum in Support of Defendants' Combined Cross-Motion for Summary Judgment (not to exceed 35 pages) ; and

2) Defendants' separate Reply Memoranda in Support of Defendants' PlaintiffSpecific Cross-Motions for Summary Judgment (not to exceed 7 pages each)

6 - CASE-MANAGEMENT ORDER

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The Clerk will contact counsel to schedule a status conference with the parties to occur between June 29, 2015, and July 3, 2015, so the Court may consider with counsel the extent to which oral argument may be necessary on issues raised in the parties' motions. The Clerk will also confer with counsel regarding a date in late July to reserve for any oral argument that may be needed. 2. To the extent that any party wishes to file a motion "under
seal" or "ex parte, 11 the Court requires the following process. a. Concerns Regarding Plaintiffs' Privacy.
The Court notes Plaintiffs have expressed concerns about disclosure in these public-record motions of any facts that a Plaintiff may deem to be private. The Court encourages the parties to complete their conferral about their proposed Protective Order in light of existing precedent as to when a court may seal from public disclosure personal information about a litigant disclosed in Court proceedings. See Foltz v. State Farm Mut. Automobile Ins. Co., 331 F.3d 1122 (9th Cir. 2003). See also In re Roman Catholic Archbishop of Portland in Oregon, 661 F.3d 417, 423-25 (9th Cir. 2011).
To the extent that the parties stipulate certain evidentiary material may be filed under seal, the parties must submit a joint motion and supporting authority seeking the Court's authorization to permit the filing of such a pleading under seal. Any
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Case 3:10-cv-00750-BR Document 168 Filed 02/13/15 Page 8 of 10
stipulated motion to file a pleading under seal must be made at least 7 calendar days before the due date for filing the pleading.
If the parties do not agree to stipulate after full conferral, the party seeking authority to file a pleading under seal must seek leave of Court by filing a motion with supporting authority. Any opposed motion to file a pleading under seal must be made after full conferral and at least 14 days before the due date for filing the pleading with any opposition due 7 days after the motion and at least 7 days before the due date for filing the pleading.
b. Defendants' Filings Under Seal or Ex Parte containing Sensitive National-Security Information. If Defendants seek to make any filing under seal or ex
parte as to sensitive, national-security information, they must follow this procedure:
(1) Defendants' counsel must confer with opposing counsel, and the conferral must be as complete as the law permits. Defendants must file a motion seeking leave to file the pleading under seal or ex parte. To the extent that the basis for an ex parte filing is itself privileged or exempt from disclosure in the public record, Defendants must, nevertheless, make a public, summary filing of the basis for the motion to seal or to file ex parte sufficient to allow Plaintiffs to file a
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response to Defendants' contested request. (2) For any contested motion to file a pleading under
seal or ex parte, the motion and supporting authority are due at least 14 calendar days before the due date for filing the pleading, and any opposition is due at least 7 days before the due date for filing the pleading.
(3) Any stipulated motion to permit filing a pleading under seal or ex parte must be filed no later than 7 days before the due date for filing the pleading. 3. To the extent that any party wishes the Court to change this
Case-Management Schedule in any respect, the Court requires the following process. After full conferral among counsel, the parties may submit a single Joint Motion to Change Case-Management Schedule setting forth the proposed changes, the extent to which the parties agree or oppose the changes, and the bases for the proposed changes. The Court will consider any such Joint Motion expeditiously and notify the parties whether a hearing will be held or whether the Court will rule on the record. 4. No later than March 13, 2015, the parties must submit a proposed form of a dispositive order as to the claims of Plaintiffs who are not presently on the No-Fly List. For clarity of the record, the Court requires the entry of a dispositive order confirming the conclusion of all claims by Plaintiffs who are not presently on the No-Fly List. The Court directs the parties to confer about the form of such an order and
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Case 3:10-cv-00750-BR Document 168 Filed 02/13/15 Page 10 of 10 to make a single joint filing no later than March 13, 2015, setting forth the agreed and any disputed proposed provisions of such an order together with a concise statement of the bases for any disputed provisions.
IT IS SO ORDERED. DATED this 13th day of February, 2015.
ANNA J. BROWN United States District Judge
10- CASE-MANAGEMENT ORDER

 
 Case 3:10-cv-00750-BR Document 197 Filed 04/13/15 Page 1 of 5

BENJAMIN C. MIZER Acting Assistant Attorney General Civil Division
ANTHONY J. COPPOLINO Deputy Branch Director Federal Programs Branch
AMY POWELL BRIGHAM J. BOWEN ADAM D. KIRSCHNER amy.powell@usdoj.gov brigham.bowen@usdoj.gov U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W Washington, D.C. 20001 Phone: (202) 514-6289 Fax: (202) 616-8470
Attorneys for Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

AYMAN LATIF, et al.,

Case 3:10-cv-00750-BR

Plaintiffs, v.
ERIC H. HOLDER, JR., et al.,

NOTICE REGARDING REVISIONS TO DHS TRIP PROCEDURES

Defendants.

As reflected in prior filings in this case, the Government has been in the process of revising its redress procedures for claims involving denials of boarding on covered aircraft, see 49 C.F.R. § 1560.3, submitted through the Department of Homeland Security Traveler Redress Inquiry Program (known as DHS TRIP). This revision process has been directed at improving
1 – NOTICE RE: REVISIONS TO DHS TRIP PROCEDURES
Latif v. Holder, Civil Case No. CV 10-00750-BR

Case 3:10-cv-00750-BR Document 197 Filed 04/13/15 Page 2 of 5
the redress procedures, including by increasing transparency relating to the No Fly List. In connection with this effort, while the Government’s revision process was ongoing, certain individual DHS TRIP inquiries — such as those submitted by plaintiffs in the Latif, Tarhuni, and Fikre cases — have been reopened and reevaluated under revised procedures. The Government now reports that the revised procedures will be made available to similarly situated U.S. persons.
Under the previous redress procedures, individuals who had submitted inquiries to DHS TRIP generally received a letter responding to their inquiry that neither confirmed nor denied their No Fly status. Under the newly revised procedures, a U.S. person who purchases a ticket, is denied boarding at the airport, subsequently applies for redress through DHS TRIP about the denial of boarding, and is on the No Fly List after a redress review, will now receive a letter providing his or her status on the No Fly List and the option to receive and/or submit additional information. If such an individual opts to receive and/or submit further information after receiving this initial response, DHS TRIP will provide a second, more detailed response. This second letter will identify the specific criterion under which the individual has been placed on the No Fly List and, consistent with the Court’s June 24, 2014 decision, will include an unclassified summary of information supporting the individual’s No Fly List status, to the extent feasible, consistent with the national security and law enforcement interests at stake. The amount and type of information provided will vary on a case-by-case basis, depending on the facts and circumstances. In some circumstances, an unclassified summary may not be able to be provided when the national security and law enforcement interests at stake are taken into account.
This second letter will also provide the requester an opportunity to be heard further concerning their status. Written responses from such individuals may be submitted and may
2 – NOTICE RE: REVISIONS TO DHS TRIP PROCEDURES
Latif v. Holder, Civil Case No. CV 10-00750-BR

Case 3:10-cv-00750-BR Document 197 Filed 04/13/15 Page 3 of 5
include exhibits or other materials the individual deems relevant. Upon DHS TRIP’s receipt of an individual’s submission in response to the second letter, the matter will be reviewed by the Administrator of the Transportation Security Administration (TSA) or his/her designee in coordination with other relevant agencies, who will review the submission, as well as the unclassified and classified information that is being relied upon to support the No Fly listing, and will issue a final determination. TSA will provide the individual with a final written determination, providing the basis for the decision (to the extent feasible in light of the national security and law enforcement interests at stake) and will notify the individual of the ability to seek further judicial review under 49 U.S.C. § 46110.
The Government will be closely monitoring the initial implementation of these newly revised procedures on an interagency basis, and will, as circumstances warrant, consider whether further revisions to the process are necessary. The revised procedures will be discussed in more depth in Defendants’ upcoming summary judgment briefing.

Dated: April 13, 2015

Respectfully Submitted,

BENJAMIN C. MIZER Principal Deputy Assistant Attorney General Civil Division

ANTHONY J. COPPOLINO Deputy Branch Director Federal Programs Branch

s/ Brigham J. Bowen BRIGHAM J. BOWEN AMY POWELL ADAM D. KIRSCHNER amy.powell@usdoj.gov brigham.bowen@usdoj.gov U.S. Department of Justice
3 – NOTICE RE: REVISIONS TO DHS TRIP PROCEDURES
Latif v. Holder, Civil Case No. CV 10-00750-BR

Case 3:10-cv-00750-BR Document 197 Filed 04/13/15 Page 4 of 5 Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W Washington, D.C. 20001 Phone: (202) 514-6289 Fax: (202) 616-8470 Attorneys for Defendants
4 – NOTICE RE: REVISIONS TO DHS TRIP PROCEDURES
Latif v. Holder, Civil Case No. CV 10-00750-BR

Case 3:10-cv-00750-BR Document 197 Filed 04/13/15 Page 5 of 5 CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing notice was delivered to all counsel of record via the Court’s ECF notification system.
s/ Brigham J. Bowen BRIGHAM J. BOWEN
5 – NOTICE RE: REVISIONS TO DHS TRIP PROCEDURES
Latif v. Holder, Civil Case No. CV 10-00750-BR

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

AYMAN LATIF; MOHAMED SHEIKH ABDIRAHMAN KARIYE; RAYMOND EARL KNAEBLE, IV; STEVEN WILLIAM WASHBURN; NAGIB ALI GHALEB; ABDULLATIF MUTHANNA; FAISAL NABIN KASHEM; ELIAS MUSTAFA MOHAMED; IBRAHEIM Y. MASHAL; SALAH ALI AHMED; AMIR MESHAL; STEPHEN DURGA PERSAUD; and MASHAAL RANA,
Plaintiffs,
v.
LORETTA E. LYNCH,1 in her official capacity as Attorney General of the United States; JAMES B. COMEY, in his official capacity as Director of the Federal Bureau of Investigation; and CHRISTOPHER M. PIEHOTA, in his official capacity as Director of the FBI Terrorist Screening Center,
Defendants.

3:10-cv-00750-BR OPINION AND ORDER

1 The Court substitutes Loretta E. Lynch as Attorney General of the United States, who was sworn in on April 27, 2015.
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STEVEN M. WILKER Tonkon Torp LLP 888 S.W. 5th Avenue, Suite 1600 Portland, OR 97204-2099 (503) 802-2040
HINA SHAMSI HUGH HANDEYSIDE American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500
ALEXANDRA F. SMITH ACLU Foundation of New Mexico P.O. Box 566 Albuquerque, NM 87103-0566 (505) 266-5915
AHILAN ARULANANTHAM CATHERINE A. WAGNER ACLU Foundation of Southern California 1313 West 8th Street Los Angeles, CA 90017 (213) 977-9500
ALAN L. SCHLOSSER JULIA HARUMI MASS ACLU of Northern California 39 Drumm Street San Francisco, CA 94111 (415) 621-2493
MITCHELL P. HURLEY JUSTIN H. BELL Akin Gump Strauss Hauer & Feld LLP One Bryant Park New York, NY 10036-6745 (212) 872-1011
Attorneys for Plaintiffs Mohamed Sheikh Abdirahman Kariye, Faisal Kashem, Raymond Earl Knaeble, Amir Mohamed Meshal, and Steven Washburn
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WILLIAM GENEGO 2115 Main Street Santa Monica, CA 90405 (310) 399-3259
JOEL P. LEONARD Elliot, Ostrander & Preston, P.C. Union Bank of California Tower 707 S.W. Washington Street, Suite 1500 Portland, OR 97205-3532 (503) 224-7112
Attorneys for Plaintiff Stephen Persaud
LORETTA E. LYNCH United States Attorney General BENJAMIN C. MIZER Principal Deputy Assistant Attorney General ANTHONY J. COPPOLINO Deputy Branch Director ADAM D. KIRSCHNER AMY ELIZABETH POWELL BRIGHAM J. BOWEN SAMUEL M. SINGER United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W., Suite 5377 Washington, DC 20010 (202) 514-9836
BILLY J. WILLIAMS United States Attorney JAMES E. COX, JR. Assistant United States Attorney District of Oregon 1000 S.W. Third Avenue, Ste. 600 Portland, OR 97204 (503) 727-1026
Attorneys for Defendants
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BROWN, Judge. This “No-Fly List” case was filed nearly six years ago,2 has
been before this Court on remand from the Ninth Circuit for nearly three years, and now comes before the Court on various Motions for Partial Summary Judgment as enumerated below. Although other courts3 have addressed issues related to the NoFly List, the parties’ current Motions raise difficult issues of first impression involving only Plaintiffs’ claims for violation of procedural due-process and the Administrative Procedure Act (APA), 5 U.S.C. § 706. This Opinion and Order, therefore, does not address Plaintiffs’ substantive due-process claims as to their placement on the No-Fly List or the statutory judicial review of the Transportation Security Administration’s (TSA) administrative determination that Plaintiffs should remain on the No-Fly List, issues that are necessarily reserved for later proceedings.
The current Motions before the Court are: 1. Plaintiffs’ Renewed Combined Motion (#206) for Partial
2 The six Plaintiffs still in this action (Mohamed Sheikh Abdirahman Kariye, Faisal Kashem, Raymond Earl Knaeble, Amir Meshal, Steven Washburn, and Stephen Persaud) have remained on the List at least since then.
3 See, e.g., Ibrahim v. Dep’t of Homeland Sec., No. C 0600545 WHA (N.D. Cal.); Mohamed v. Holder, No. 1:11-CV-50 (AJT/TRJ) (E.D. Va.); Tarhuni v. Holder, No. 3:13-cv-00001-BR (D. Or.); Fikre v. Fed. Bureau of Investigation, No. 3:13-cv-00899-BR (D. Or.); Mokdad v. Holder, No. 13-12038 (E.D. Mich.). 4 - OPINION AND ORDER

Summary Judgment; 2. Defendants’ Combined Cross-Motion (#251) for Partial
Summary Judgment; 3. Plaintiffs’ individual Renewed Motions (#210, #212,
#214, #216, #218, #220) for Partial Summary Judgment; and 4. Defendants’ Cross-Motions (#241, #242, #247, #248,
#249, #250) for Partial Summary Judgment regarding individual Plaintiffs.
In their Motions Plaintiffs seek a ruling that the revised Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP) procedures that Defendants implemented following this Court’s Opinion and Order (#136) issued June 24, 2014, (June 2014 Opinion) violate procedural due process and the APA because:
1. The reasonable-suspicion standard that Defendants employed when placing an individual on the No-Fly List is insufficiently rigorous, and Defendants should only be permitted to place an individual on the No-Fly List if there is clear and convincing evidence to support such listing.
2. Defendants failed to provide Plaintiffs with a full statement of the reasons for each Plaintiff’s placement on the No-Fly List;
3. Defendants failed to provide Plaintiffs with all material evidence concerning their placement on the No-Fly List;
4. Defendants failed to provide Plaintiffs with all
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exculpatory evidence concerning their placement on the No-Fly List;
5. Defendants failed to provide Plaintiffs with a live hearing before a neutral decision-maker at which Plaintiffs could confront and cross-examine witnesses; and
6. Defendants failed to provide Plaintiffs with additional disclosures using procedures similar to those under the Classified Information Procedures Act (CIPA), which include making disclosures to counsel who have security clearances, issuing protective orders, and presenting unclassified summaries of classified information.
Defendants, on the other hand, contend they applied revised DHS TRIP procedures that satisfy procedural due-process standards to each of the six remaining Plaintiffs, and, therefore, Plaintiffs’ Motions should be denied and Defendants’ Motions should be granted.
The Court heard oral argument on the parties’ Motions on December 9, 2015, and, after the parties filed supplemental memoranda, took the matter under advisement on January 8, 2016, to resolve the primary issue whether Defendants’ revised DHS TRIP procedures provided the remaining six Plaintiffs with sufficient notice of the reasons for placing and retaining them on the NoFly List and a meaningful opportunity to challenge those reasons consistent with procedural due process.
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After thoroughly considering these Motions on the record as a whole, the Court concludes Defendants’ revised DHS TRIP procedures satisfy in principle most of the procedural dueprocess requirements that the Court set out in its June 2014 Opinion. See Latif v. Holder, 28 F. Supp. 3d 1134 (D. Or. 2014). The Court, nevertheless, concludes the record is not sufficient to resolve whether such procedures were, in fact, constitutionally sufficient as to each Plaintiff because the record does not identify the information that Defendants withheld from Plaintiffs or the reasons for withholding that information.
In particular and for the reasons that follow, the Court concludes:
1. Due process does not require Defendants to apply the clear and convincing evidence standard to the No-Fly List determinations that Defendants made as to these Plaintiffs nor to provide original evidence to support such determinations. The reasonable-suspicion standard does not violate procedural due process when applied to a particular Plaintiff as long as Defendants provide such Plaintiff with (1) a statement of reasons that is sufficient to permit such Plaintiff to respond meaningfully and (2) any material exculpatory or inculpatory information in Defendants’ possession that is necessary for such a meaningful response.
2. In some instances, however, Defendants may limit
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or withhold disclosures altogether in the event that such disclosures would create an undue risk to national security. In such instances Defendants must implement procedures to minimize the amount of material information withheld. In particular, Defendants must determine whether the information can be summarized in an unclassified summary and/or whether additional disclosures can be made to Plaintiffs’ counsel who have the appropriate security clearances. When possible, Defendants must do so. When it is not possible, Defendants must so certify through a competent witness with personal knowledge of the reasons for Defendants’ conclusion that they cannot make such additional disclosures.
3. Procedural due process in this context does not require Defendants to provide Plaintiffs with a live hearing before a neutral decision-maker at which Plaintiffs could confront and cross-examine witnesses.
4. Defendants’ revised DHS TRIP procedures satisfy in principle most of the procedural due-process requirements that the Court set out in its June 2014 Opinion, but the Court cannot determine on this record whether Defendants provided to each Plaintiff notice that was actually sufficient to permit each Plaintiff to respond meaningfully. In particular, the record does not contain information that is essential to adjudicate Plaintiffs’ individual procedural due-process claims; i.e., what
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information, including material exculpatory or inculpatory information, that Defendants did not disclose to Plaintiffs or the reasons for withholding that information; which mitigating measures Defendants considered as to such nondisclosures; and whether any Plaintiff is represented by counsel who have the appropriate security clearance to review any such withheld information.
Accordingly, and for the reasons that follow, the Court GRANTS in part and DENIES in part Defendants’ Combined CrossMotion (#251) for Partial Summary Judgment; DENIES Plaintiffs’ Renewed Combined Motion (#206) for Partial Summary Judgment; and DEFERS RULING on Defendants’ Cross-Motions (#241, #242, #247, #248, #249, #250) for Partial Summary Judgment regarding individual Plaintiffs and Plaintiffs’ individual Renewed Motions (#210, #212, #214, #216, #218, #220) for Partial Summary Judgment until Defendants supplement the record as directed herein with sufficient information for the Court to rule on those Motions.
BACKGROUND4 Plaintiffs, all of whom are United States citizens, challenge their placement on the No-Fly List and the procedures
4 The Court incorporates herein the complete statement of the factual background of each Plaintiff and the administrative procedures at issue as stated in its June 2014 Opinion. See Latif, 28 F. Supp. 3d 1134, 1140-46. 9 - OPINION AND ORDER

afforded to them to contest that placement. I. The No-Fly List
The Terrorist Screening Center (TSC) develops and maintains the federal government’s consolidated Terrorist Screening Database (TSDB), which is administered by the Federal Bureau of Investigation (FBI) and staffed by multiple agencies. The TSC provides identity information concerning known or suspected terrorists from the TSDB to other government agencies that use the information for screening purposes.
TSC accepts nominations to the TSDB as long as two requirements are met: (1) the biographical information associated with the nomination contains sufficient identifying data so that a person being screened can be matched to or disassociated from a watchlisted person in the TSDB and (2) the nomination is supported by information that amounts to a reasonable suspicion that the individual is a known or suspected terrorist. This reasonable-suspicion standard “requires articulable intelligence or information which, taken together with rational inferences from those facts, reasonably warrant the determination that an individual is known or suspected to be, or has been engaged in conduct constituting, in preparation for, in aid of or related to, terrorism or terrorist activities.” Joint Combined Statement of Agreed Facts Relevant to All Plaintiffs (#173) at 4.
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The TSDB contains multiple sublists, each of which has its
own additional substantive criteria. The No-Fly List is one of
the sublists within the TSDB. Any nomination to the No-Fly List
must meet at least one of the following additional substantive
derogatory criteria:
1) A threat of committing an act of international terrorism (as defined in 18 U.S.C. § 2331(1)) or an act of domestic terrorism (as defined in 18 U.S.C. § 2331(5)) with respect to an aircraft (including a threat of air piracy, or threat to an airline, passenger, or civil aviation security); or
2) A threat of committing an act of domestic terrorism (as defined in 18 U.S.C. § 2331(5)) with respect to the homeland; or
3) A threat of committing an act of international terrorism (as defined in 18 U.S.C. § 2331(1)) against any U.S. Government facility abroad and associated or supporting personnel, including U.S. embassies, consulates and missions, military installations (as defined by 10 U.S.C. § 2801(c)(4)), U.S. ships, U.S. aircraft, or other auxiliary craft owned or leased by the U.S. Government; or
4) A threat of engaging in or conducting a violent act of terrorism and who is operationally capable of doing so.
Joint Combined Statement of Agreed Facts Relevant to All
Plaintiffs (#173) at 5. Individuals who are placed on the No-Fly
List are prohibited from boarding any commercial flight that will
pass through or over United States airspace.
II. Original Redress Procedures
A traveler who is denied boarding on a commercial airline
may submit an application for redress through DHS TRIP. The
traveler submits to DHS TRIP an inquiry that provides the
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traveler’s identification and their contact information. DHS TRIP then determines whether that traveler is an exact or near match to an individual in the Terrorist Screening Database (TSDB).
If DHS TRIP determines the traveler is an exact or near match for an individual within the TSDB, DHS TRIP forwards the inquiry to the TSC. On receipt of the inquiry the TSC again determines whether the traveler is an exact match to an identity in the TSDB and, if so, whether the traveler should continue to be in the TSDB.
Pursuant to procedures in place at the time this action was filed (original procedures), DHS TRIP would send a determination letter after TSC finished its review advising the traveler that DHS TRIP had completed its review. That DHS TRIP determination letter neither confirmed nor denied whether the traveler was in the TSDB or on the No-Fly List and did not provide any further details about why the traveler may or may not have been in the TSDB or on the No-Fly List. Moreover, pursuant to such original procedures, the DHS TRIP determination letters did not provide assurances about the traveler’s ability to undertake future travel nor any meaningful opportunity to contest or to correct the record on which any such determination was based. In some cases a DHS TRIP determination letter would advise the traveler that he or she could pursue an administrative appeal of the
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determination with TSA or could seek judicial review in a United States court of appeals pursuant to 49 U.S.C. § 46110.
In the event that the traveler sought judicial review, the government then provided to the reviewing court (but not to the traveler) the administrative record that contained all of the information the agency relied on to maintain the listing as well as any information submitted by the petitioner during the administrative process. If the court determined after review that the administrative record supported the petitioner’s inclusion on the No-Fly List, the court would deny the petition for review. III. Plaintiffs’ Lawsuit and the Court’s June 2014 Opinion
Plaintiffs filed their Complaint in this action on June 30, 2010, and alleged the DHS TRIP procedures available to them violated their rights to procedural and substantive due-process under the Fifth Amendment to the United States Constitution and violated the APA. After this matter was remanded from the Ninth Circuit on jurisdictional grounds, the parties filed crossmotions (#85, #91) for partial summary judgment as to Plaintiffs’ procedural due-process and APA claims.
On June 24, 2014, the Court issued the June 2014 Opinion in which it held the DHS TRIP procedures in effect at the time violated Plaintiffs’ rights to procedural due process. As a result the Court directed Defendants to fashion new procedures to
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reconsider Plaintiffs’ DHS TRIP inquiries. The Court required Defendants to provide each Plaintiff with notice regarding their status on the No-Fly List and the reasons for any Plaintiff’s placement on the List that was reasonably calculated to permit each such Plaintiff to submit evidence relevant to the reasons for their respective inclusions on the No-Fly List. See Latif, 28 F. Supp. 3d at 1161-62. Recognizing there could be instances in which Defendants could not provide a full statement of reasons because doing so would create an undue risk of disclosing sensitive, national security information, the Court directed Defendants in such circumstances to use procedures to minimize the withholding that “could include, but are not limited to, the procedures identified by the Ninth Circuit in Al Haramain [Islamic Found., Inc. v. U.S. Dep’t of Treasury, 686 F.3d 965, 984 (9th Cir. 2012)]; that is, Defendants may choose to provide Plaintiffs with unclassified summaries of the reasons for their respective placement on the No–Fly List or disclose the classified reasons to properly-cleared counsel.” Latif, 28 F. Supp. 3d at 1162. The Court did not foreclose the possibility that in some cases the disclosures made to an individual Plaintiff “may be limited or withheld altogether because any such disclosure would create an undue risk to national security.” The Court indicated any such determination must be made on a case-bycase basis, however, and must be subject to judicial review. Id.
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IV. Revised Procedures and Reconsideration of Plaintiffs’ DHS Trip Inquiries As a result of the Court’s June 2014 Opinion and pursuant to
the Court’s Case-Management Order (#152) issued October 3, 2014, Defendants disclosed on October 10, 2014, that seven of the Plaintiffs were not then on the No-Fly List. In addition, Defendants reported they had reconsidered each of the DHS TRIP inquiries of the remaining six Plaintiffs (Mohamed Sheikh Abdirahman Kariye, Faisal Kashem, Raymond Earl Knaeble, Amir Meshal, Steven Washburn, and Stephen Persaud) pursuant to newlyformulated procedures.
On November 24 and 26, 2014, DHS TRIP sent to each of the remaining six Plaintiffs a notification letter that identified the applicable substantive criteria and provided an unclassified summary that included some reasons for placement of each individual on the No-Fly List. Although the unclassified summaries varied in length and detail, the letters did not disclose all of the reasons or information on which Defendants relied to maintain each Plaintiff’s placement on the No-Fly List. Defendants stated they were “unable to provide additional disclosures.” Joint Combined Statement of Agreed Facts Relevant to All Plaintiffs (#173) at 6. The November 2014 DHS TRIP notification letters invited each Plaintiff to submit a written response by December 15, 2014.
By letter dated December 5, 2014, counsel for Plaintiffs 15- OPINION AND ORDER

wrote to counsel for Defendants seeking additional information and procedures. Defendants declined to provide any additional disclosures or procedures.
Plaintiffs Faisal Kashem, Raymond Knaeble, and Steven Washburn responded to their DHS TRIP notification letters on December 15, 2014; Plaintiff Sheikh Abdirahman Kariye responded on December 16, 2014; Plaintiff Amir Meshal responded on December 18, 2014; and Plaintiff Stephen Persaud responded on January 8, 2015.
Pursuant to a procedural change instituted after the Court’s June 2014 Opinion, the Acting Administrator of the TSA conducted his own review of the information available regarding each Plaintiff’s placement on the No-Fly List, including the information submitted by Plaintiffs. The Acting Administrator issued final determinations as to Plaintiffs Kashem, Kariye, Knaeble, Meshal, and Washburn on January 21, 2015, and issued a final determination as to Plaintiff Persaud on January 28, 2015. The TSA Acting Administrator concluded each of the six Plaintiffs should remain on the No-Fly List.
STANDARDS Summary judgment is appropriate when there is not a “‘genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Washington Mut., Inc.
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v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011)(quoting Fed. R. Civ. P. 56(a)). The moving party must show the absence of a dispute as to a material fact. Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005). See also Emeldi v. Univ. of Or., 673 F.3d 1218, 1223 (9th Cir. 2012). In response to a properly supported motion for summary judgment, the nonmoving party must go beyond the pleadings and point to “specific facts demonstrating the existence of general issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) “This burden is not a light one. . . . The non-moving party must do more than show there is some ‘metaphysical doubt’ as to the material facts at issue.” Id. (citation omitted).
A dispute as to a material fact is genuine “‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The court must draw all reasonable inferences in favor of the nonmoving party. Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010). “Summary judgment cannot be granted where contrary inferences may be drawn from the evidence as to material issues.” Easter v. Am. W. Fin., 381 F.3d 948, 957 (9th Cir. 2004)(citing Sherman Oaks Med. Arts Ctr., Ltd. v. Carpenters Local Union No. 1936, 680 F.2d 594, 598 (9th Cir. 1982)).
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A “mere disagreement or bald assertion” that a genuine dispute as to a material fact exists “will not preclude the grant of summary judgment.” Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1987)). See also Moore v. Potter, 701 F. Supp. 2d 1171 (D. Or. 2010). When the nonmoving party’s claims are factually implausible, that party must “‘come forward with more persuasive evidence than otherwise would be necessary.’” LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(quoting Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1147 (9th Cir. 1998)).
The substantive law governing a claim or a defense determines whether a fact is material. Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). If the resolution of a factual dispute would not affect the outcome of the claim, the court may grant summary judgment. Id.
DISCUSSION Plaintiffs move for summary judgment both collectively and individually on their procedural due-process and APA claims on the basis that the new DHS TRIP procedures do not provide Plaintiffs with a sufficient opportunity to contest their placement on the No-Fly List. Plaintiffs’ collective Motion addresses those issues that are common to all Plaintiffs. In
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their individual Motions each Plaintiff contends the DHS TRIP procedures were constitutionally deficient as applied to them.
Defendants, on the other hand, move for summary judgment on the basis that there is not any genuine dispute of material fact as to the constitutionality of the revised DHS TRIP procedures. Defendants filed a collective Motion regarding the issues common to all Plaintiffs and separate Cross-Motions as to each individual Plaintiff. I. Procedural Due-Process Claims
A. Procedural Due-Process Standards “The Due Process Clause of the Fourteenth Amendment imposes procedural constraints on governmental decisions that deprive individuals of liberty or property interests.” Nozzi v. Hous. Auth. of City of Los Angeles, 806 F.3d 1178, 1190 (9th Cir. 2015). “Due process protections extend only to deprivations of protected interests.” Shinault v. Hawks, 782 F.3d 1053, 1057 (9th Cir. 2015). “Thus, the first question in any case in which a violation of procedural due process is alleged is whether the plaintiffs have a protected property or liberty interest and, if so, the extent or scope of that interest.” Nozzi, 806 F.3d at 1190-91. After the plaintiffs have established they have been deprived of a protected property or liberty interest, the question becomes “‘what process is due to protect [the]
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plaintiffs’ . . . interest.’” Id. at 1192 (quoting Nozzi v. Hous. Auth. of City of Los Angeles, 425 F. App’x 539, 542 (9th Cir. 2011)). “Which protections are due in a given case requires a careful analysis of the importance of the rights and the other interests at stake.” Nozzi, 806 F.3d at 1192.
“[I]n Mathews v. Eldridge, the Supreme Court set forth a three-part inquiry to determine whether the procedures provided to protect a liberty or property interest are constitutionally sufficient.” Id. at 1192 (citing Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976)). “First, courts must look at the nature of the interest that will be affected by the official action, and in particular, to the ‘degree of potential deprivation that may be created.’” Nozzi, 806 F.3d at 1192-93 (quoting Mathews, 424 U.S. at 341). “Second, courts must consider the ‘fairness and reliability’ of the existing procedures and the ‘probable value, if any, of additional procedural safeguards.’” Nozzi, 806 F.3d at 1193 (quoting Mathews, 424 U.S. at 343). Third, courts must consider “the Government’s interest, including the function involved” (Mathews, 424 U.S. at 335) as well as “the public interest, which ‘includes the administrative burden and other societal costs that would be associated with’ additional or substitute procedures.” Nozzi, 806 F.3d at 1193 (quoting Mathews, 424 U.S. at 347).
“In ‘balancing’ the Mathews factors, [the court is] mindful
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that ‘the requirements of due process are flexible and call for such procedural protections as the particular situation demands.’” Vasquez v. Rackauckas, 734 F.3d 1025, 1044 (9th Cir. 2013)(quoting Wilkinson v. Austin, 545 U.S. 209, 224-25 (2005)). It is fundamental, however, that “[d]ue process requires notice and an opportunity to be heard.” Carpenter v. Mineta, 432 F.3d 1029, 1036 (9th Cir. 2005).
B. Analysis Regarding the Parties’ Collective CrossMotions (#206, #251) for Partial Summary Judgment
As noted, the parties make largely mirror-image arguments in their cross-motions related to all Plaintiffs. Plaintiffs contend under the Mathews analysis that the revised DHS TRIP procedures do not satisfy the requirements of procedural due process. Defendants, on the other hand, contend the revised procedures are constitutionally sufficient. Accordingly, the Court addresses the issues raised in the parties’ collective cross-motions through the Mathews analysis.
1. Protected Liberty Interest In its June 2014 Opinion the Court held “Plaintiffs have constitutionally-protected liberty interests in traveling internationally by air, which are significantly affected by being placed on the No-Fly List.” Latif, 28 F. Supp. 3d at 1149. In addition, the Court held the record on summary judgment sufficiently implicated Plaintiffs’ “constitutionally-protected liberty interests in their reputations.” Id. at 1150. 21- OPINION AND ORDER

The current record as to the implication of Plaintiffs’ constitutionally-protected liberty interests is materially the same as it was at the time of the June 2014 Opinion. Accordingly, on this record the Court adheres to its conclusion in the June 2014 Opinion as to Plaintiffs' constitutionallyprotected liberty interests.
2. The Mathews Three-Part Balancing Test Because the Court has determined placement on the NoFly List implicates Plaintiffs’ constitutionally-protected liberty interests in international travel and reputation, the Court must determine “‘what process is due to protect [the] plaintiffs’ . . . interest’” under the Mathews factors. See Nozzi, 806 F.3d at 1192. The Court first considers the nature of the private interests involved, and then the Court considers the governmental and public interests at stake before turning to the risk of erroneous deprivation and the probative value of additional procedural safeguards.
a. Nature of the Private Interests As they have throughout the course of these proceedings, Plaintiffs contend placement on the No-Fly List implicates their protected liberty interests in (1) international travel and (2) freedom from false governmental stigmatization under the “stigma-plus” doctrine.
(1) Right to International Travel
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As noted, in its June 2014 Opinion the Court concluded “Plaintiffs’ inclusion on the No-Fly List constitutes a significant deprivation of their liberty interests in international travel.” Latif, 28 F. Supp. 3d at 1150. The Court pointed out that “[o]ne need not look beyond the hardships suffered by Plaintiffs to understand the significance of the deprivation of the right to travel internationally,” which may include long-term separation from spouses and children, the inability to participate in important religious rites, lost business and employment opportunities, and the inability to attend important personal and family events. Id. at 1149. There can be no doubt, therefore, that in these modern times the deprivation of the right to international travel can seriously impact an individual’s life.
Nonetheless, “the freedom to travel abroad . . . is subordinate to national security and foreign policy considerations; as such, it is subject to reasonable governmental regulation.” Haig v. Agee, 453 U.S. 280, 306 (1981). In Agee the Secretary of State revoked Agee’s passport because he had conducted a “continuous campaign to disrupt the intelligence operations of the United States” by exposing Central Intelligence Agency operatives working clandestinely abroad. 453 U.S. at 28387. Agee filed a lawsuit contending, among other things, that he was entitled to notice and a hearing before the Secretary revoked
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his passport. In light of the “substantial likelihood of ‘serious damage’ to national security or foreign policy” as a result of Agee’s activities, the Court held “[t]he Constitution’s due process guarantees call for no more than what has been accorded here: a statement of reasons and an opportunity for a prompt postrevocation hearing.” Id. at 309-10.
The revocation of an individual’s passport is a deprivation of the right to international travel at least as significant as placement on the No-Fly List. Accordingly, just as in Agee, “the freedom to travel abroad . . . is subordinate to national security and foreign policy considerations,” and the DHS TRIP procedures must be upheld as long as they constitute “reasonable government regulation.” Id. at 306.
(2) Stigma-Plus “To prevail on a claim under the stigma-plus doctrine, Plaintiffs must show (1) public disclosure of a stigmatizing statement by the government, the accuracy of which is contested; plus (2) the denial of some more tangible interest such as employment, or the alteration of a right or status recognized by state law.” Green v. Transp. Sec. Admin., 351 F. Supp. 2d 1119, 1129 (W.D. Wash. 2005)(citing Ulrich v. City & Cnty. of San Francisco, 308 F.3d 968, 982 (9th Cir. 2002), and Paul v. Davis, 424 U.S. 693, 701, 711 (1976)). As the Court noted in its June 2014 Opinion,
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“Plaintiffs’ private interests at the heart of their stigma-plus claim are not as strong” as the interests involved in their international travel claim because “the limited nature of the public disclosure in this case mitigates Plaintiffs’ claims of injury to their reputations.” Latif, 28 F. Supp. 3d at 1150. Aside from the incidental public disclosure that may occur at the airport when an individual is denied boarding in that public space, the government does not generally disclose to the public an individual’s placement on the No-Fly List. See id. at 115051.
Nonetheless, Plaintiffs contend their reputational interests are strong because even though Defendants do not disclose publicly Plaintiffs’ status on the No-Fly List, their status on the List is disclosed to other governmental agencies such as state and local law-enforcement agencies.5 The Court, however, is not persuaded because “disclosures of stigmatizing information internally within or between government agencies is not a ‘public’ disclosure.” Cleavenger v. Univ. of Oregon, No. 13-cv-01908-DOC, 2015 WL 4663304, at *17 (D. Or. Aug. 6, 2015)(citing Wenger v. Monroe, 282 F.3d 1068, 1075 (9th Cir. 2002)).
5 The Court notes the record does not presently reflect the degree to which information concerning any Plaintiff’s No-Fly List status has been publicly disclosed as a result of that Plaintiff’s voluntary actions. 25- OPINION AND ORDER

Accordingly, although Plaintiffs have constitutionally-protected reputational interests that may in some circumstances be implicated by placement on the No-Fly List, the Court concludes on this record that those interests do not weigh heavily in Plaintiffs’ favor and are less significant than Plaintiffs’ interests in their right to international travel.
b. Governmental and Public Interests As the Court noted in its June 2014 Opinion, “the Government’s interest in combating terrorism is an urgent objective of the highest order.” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010). See also Latif, 28 F. Supp. 3d at 1154. “It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” Haig, 453 U.S. at 307 (quoting Aptheker v. Sec'y of State, 378 U.S. 500, 509 (1964)). As the Al Haramain court noted, courts “owe unique deference to the executive branch’s determination that we face ‘an unusual and extraordinary threat to the national security’ of the United States.” 686 F.3d at 980 (quoting Exec. Order No. 13,224, 66 Fed. Reg. 49079, 49079 (Sep. 23, 2001)). The No-Fly List indisputably serves this interest because commercial aviation remains a frequent target of terrorism and preventing known and suspected terrorists from boarding commercial airliners is a reasonable method of ensuring commercial aviation security.
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The government also has a “‘compelling interest’ in withholding national security information from unauthorized persons.” Dep't of the Navy v. Egan, 484 U.S. 518, 527 (1988) (quoting Snepp v. United States, 444 U.S. 507, 509 n.3 (1980)). “Certainly the United States enjoys a privilege in classified information affecting national security so strong that even a criminal defendant to whose defense such information is relevant cannot pierce that privilege absent a specific showing of materiality.” Nat'l Council of Resistance of Iran v. Dep't of State, 251 F.3d 192, 207 (D.C. Cir. 2001). “[T]he Constitution certainly does not require that the government take actions that would endanger national security.” Al Haramain, 686 F.3d at 980. As this Court stated in its June 2014 Opinion, “[o]bviously, the Court cannot and will not order Defendants to disclose classified information to Plaintiffs.” Latif, 28 F. Supp. 3d at 1154.
As the Court previously found, therefore, the government interests in ensuring the safety of commercial aviation, combating terrorism, and protecting classified information are compelling. The question, nonetheless, remains whether the Due Process Clause requires the government to provide additional procedural safeguards to protect Plaintiffs’ private interests while serving these compelling governmental and public interests or, on the other hand, whether the revised DHS TRIP procedures provided to Plaintiffs strike a constitutionally
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adequate balance. c. Risk of Erroneous Deprivation and Probative Value of Additional Procedural Safeguards Plaintiffs contend the revised DHS TRIP procedures
carry with them an unacceptable risk of erroneous deprivation of their liberty interests and that additional procedural safeguards are necessary.
(1) Risk of Erroneous Deprivation Plaintiffs contend the risk of erroneous deprivation of their liberty interests inherent in the revised DHS TRIP procedures is unacceptably high because the reasonablesuspicion standard of proof is insufficiently rigorous, the NoFly List criteria are impermissibly vague, and the “predictive judgments” that inform placements on the No-Fly List are inherently unreliable.
(a) Reasonable Suspicion Standard Plaintiffs contend the revised DHS TRIP procedures carry with them an unacceptable risk of erroneous deprivation because the reasonable-suspicion standard of proof in combination with arguably insufficient procedural protections create an impermissibly high possibility that an individual may be placed on the No-Fly List when that individual, in fact, does not pose any risk of committing an act of terrorism or present any risk to commercial aviation. See Latif, 28 F. Supp. 3d at 1161 (noting the failure to provide sufficient notice under the 28- OPINION AND ORDER

previous DHS TRIP procedures was “especially important in light of the low evidentiary standard required to place an individual in the TSDB in the first place.”). Rather than the reasonablesuspicion standard that Defendants use to place individuals in the TSDB and on the No-Fly List, Plaintiffs contend the government must apply a clear and convincing evidence standard of proof to No-Fly List determinations in order to satisfy due process. See Singh v. Holder, 638 F.3d 1196, 1203-04 (9th Cir. 2011).
In Singh the Ninth Circuit held in the context of bond determinations in deportation proceedings that the government must prove by clear and convincing evidence that an alien is a flight risk or will be a danger to the community. Id. at 1203-04. The Singh court noted due process also requires the government to apply the clear and convincing standard in other civil contexts including civil commitment, deportability of an alien, and setting aside a naturalization decree. Id. at 1204. Accordingly, the court concluded “[f]or detainees like Singh, who face years of detention before resolution of their removability, the individual interest at stake is without doubt ‘particularly important and more substantial than mere loss of money,’ and therefore a heightened standard of proof is warranted.” Id. (quoting Santosky v. Kramer, 455 U.S. 745, 756 (1982)).
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Plaintiffs’ analogy to Singh, however, is unconvincing. Unlike Singh, which involved the possibility of “years of detention” as a result of the denial of bond in deportation proceedings, or the cases cited by Singh that involved greater infringements on an individual’s liberty interests like revocation of citizenship, deportation, and civil commitment, the deprivation involved in No-Fly List cases is considerably less. See Singh, 638 F.3d at 1203-04. Although the inability to travel internationally by air can certainly have a profound impact on the lives of some, the Court concludes such an infringement on liberty is not on a comparable footing to confinement or the revocation of citizenship.
Similarly, the Court finds unpersuasive Plaintiffs’ arguments that placement on the No-Fly List is sufficiently comparable to deportation to support a conclusion that the DHS TRIP procedures do not satisfy due process. Although Plaintiffs’ placement on the No-Fly List in some circumstances can, like deportation, result in separation from family, lost business and educational opportunities, and other common practical consequences, noncitizens who are deported from the United States are functionally stripped of all rights guaranteed by the Constitution unlike those who are placed on the No-Fly List. Because the deprivation of liberty interests that results from placement on the No-Fly List is not substantially
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equal or substantively comparable to the deprivation inherent in deportation, the Court concludes the rigorous procedural protections required in the deportation context are not directly applicable to those required when an individual is placed on the No-Fly List.
Nonetheless, as the Court found in its June 2014 Opinion, “[w]hen only an ex parte showing of reasonable suspicion supported by ‘articulable facts . . . taken together with rational inferences’ is necessary to place an individual in the TSDB, it is certainly possible, and probably likely, that ‘simple factual errors’ with ‘potentially easy, ready, and persuasive explanations’ could go uncorrected.” Latif, 28 F. Supp. 3d at 1161 (quoting Al Haramain, 686 F.3d at 982). Although the review of No-Fly List determinations by a neutral judicial officer provides an important layer of procedural protection, the low standard of proof applicable to placements on the No-Fly List is a relevant factor for a court to consider when determining whether Plaintiffs have been provided “meaningful procedures to afford Plaintiffs the opportunity to contest their placement on the No–Fly List.” Latif, 28 F. Supp. 3d at 1161.
Accordingly, the Court concludes procedural due process does not require Defendants to apply the clear and convincing standard to the No-Fly List determinations as to any Plaintiff. Although the relative sufficiency of the
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reasonable-suspicion standard to make No-Fly List determinations is an important factor that the Court must take into account when it considers whether the procedural protections in the DHS TRIP process are constitutionally adequate, the Court, nevertheless, concludes on this record that the use of the reasonable-suspicion standard alone does not run afoul of due process.
(b) Vagueness of the No-Fly List Criteria
Plaintiffs also contend the No-Fly List criteria violate procedural due process because they are unconstitutionally vague. In particular, Plaintiffs contend (1) the criteria lack any nexus to aviation security, (2) the criteria do not set a standard that provides “sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices” (Jordan v. De George, 341 U.S. 223, 231-32 (1951)), and (3) the notification letters provided to Plaintiffs do not sufficiently explain how the stated reasons for their placement on the No-Fly List satisfy the substantive criteria.
At the outset the Court notes it is unclear from Plaintiffs’ briefing whether they intend to raise a distinct claim that the No-Fly List criteria are void for vagueness or whether Plaintiffs instead contend the vagueness of the No-Fly List criteria renders the Defendants’ notice constitutionally defective. See Hotel & Motel Ass’n of Oakland 32- OPINION AND ORDER

v. City of Oakland, 344 F.3d 959, 968-73 (9th Cir. 2003) (analyzing a procedural due-process claim separately from a voidfor-vagueness claim). Because Plaintiffs’ first two vagueness arguments concern the No-Fly List criteria, the Court considers those contentions at this point as part of the “vagueness” analysis and concludes Plaintiffs’ third argument is best assessed with the remainder of Plaintiffs’ notice arguments. See infra § I(B)(2)(c)(2)(a)-(c).
“A statute fails under the Due Process Clause of the Fourteenth Amendment ‘if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits . . . .’” Desertrain v. City of Los Angeles, 754 F.3d 1147, 1155 (9th Cir. 2014)(quoting Giaccio v. Pennsylvania, 382 U.S. 399, 402 (1966)). “A statute is vague on its face when ‘no standard of conduct is specified at all. As a result, [people] of common intelligence must necessarily guess at its meaning.’” Id. (quoting Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971)). In addition, “[a] statute is impermissibly vague if it ‘fails to provide a reasonable opportunity to know what conduct is prohibited, or is so indefinite as to allow arbitrary and discriminatory enforcement.’” Arce v. Douglas, 793 F.3d 968, 988 (9th Cir. 2015)(quoting United States v. Mincoff, 574 F.3d 1186, 1201 (9th Cir. 2009)). “Although most often invoked in the context of
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criminal statutes, the prohibition on vagueness also applies to
civil statutes.” Dimaya v. Lynch, 803 F.3d 1110, 1113 (9th Cir.
2015). The standard for whether a provision is void for
vagueness, however, is less stringent when the challenged
provision contains “civil rather than criminal penalties because
the consequences of imprecision are qualitatively less severe.”
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 499 (1982). See also Hess v. Bd. of Parole and
Post-Prison Supervision, 514 F.3d 909, 914 (9th Cir. 2008).
As noted, Plaintiffs first contend the
No-Fly List criteria fail to provide “fair notice of conduct that
is forbidden” because they lack any nexus to aviation security.
Fed. Commc’ns Comm’n v. Fox Television Stations, 132 S. Ct. 2307,
2317 (2012). The Court finds this argument lacks merit.
As noted, the additional substantive
derogatory criteria that an individual must meet to be placed on
the No-Fly List are:
1) A threat of committing an act of international terrorism (as defined in 18 U.S.C. § 2331(1)) or an act of domestic terrorism (as defined in 18 U.S.C. § 2331(5)) with respect to an aircraft (including a threat of air piracy, or threat to an airline, passenger, or civil aviation security); or
2) A threat of committing an act of domestic terrorism (as defined in 18 U.S.C. § 2331(5)) with respect to the homeland; or
3) A threat of committing an act of international terrorism (as defined in 18 U.S.C. § 2331(1))
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against any U.S. Government facility abroad and associated or supporting personnel, including U.S. embassies, consulates and missions, military installations (as defined by 10 U.S.C. § 2801(c)(4)), U.S. ships, U.S. aircraft, or other auxiliary craft owned or leased by the U.S. Government; or 4) A threat of engaging in or conducting a violent act of terrorism and who is operationally capable of doing so. Each of these criteria relate to violent terrorism. Because commercial aviation has been a common target of individuals who have planned, attempted, and/or completed violent acts of terrorism both in the United States and abroad, the Court concludes the No-Fly List substantive derogatory criteria bear the requisite nexus to commercial aviation and place individuals on reasonable notice of the forbidden conduct.
The Court also concludes the criteria themselves are not unconstitutionally vague. Defendants correctly point out that courts have held similar provisions are not unconstitutionally vague. See, e.g., Humanitarian Law
Project, 561 U.S. at 20-21 (holding a statute that prohibited providing “material support or resources” to certain foreign organizations that engage in terrorist activity was not unconstitutionally vague because applying those terms does not require “untethered, subjective judgments”); Humanitarian Law
Project v. United States Treasury Dep’t, 578 F.3d 1133, 1144-47
(9th Cir. 2009); Khan v. Holder, 584 F.3d 773, 785-86 (9th Cir.
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2009). To the contrary, the violent acts of terrorism that underpin the criteria are well-defined and readily understandable by individuals of “common intelligence.” See Desertrain, 754 F.3d at 1155. Moreover, the threat-assessment nature of the NoFly List criteria does not render those criteria unconstitutionally vague because any such threat must specifically relate to the well-defined violent acts of terrorism.
Accordingly, on this record the Court concludes the No-Fly List substantive derogatory criteria are not unconstitutionally vague.
(c) Use of Predictive Judgments Finally, Plaintiffs contend the No-Fly List criteria inherently present an unacceptable risk of error because those criteria implicate predictive judgments about uncertain future conduct. In particular, Plaintiffs contend these predictive judgments are inherently unreliable, are not based on any scientific or reasoned methodology, and, therefore, are likely to sweep onto the No-Fly List many individuals who will never commit a violent act of terrorism. The Court concludes Plaintiffs’ arguments miss the mark. Although No-Fly List determinations certainly involve threat assessment, that assessment must be made based on “articulable intelligence or information which, taken
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together with rational inferences from those facts, reasonably warrant the determination” that an individual meets at least one of the substantive derogatory criteria. Accordingly, No-Fly List determinations are not merely “predictions of a future threat of dangerousness” as Plaintiffs contend, but are threat assessments that must be based on presently-known, articulable facts. In other words, No-Fly List determinations are not and cannot be a mere exercise in profiling or guesswork, but must be based on concrete information that, together with rational inferences, create a reasonable suspicion that an individual meets at least one of the No-Fly List substantive derogatory criteria.
Accordingly, on this record the Court concludes the “predictive judgments” do not negatively affect the No-Fly List criteria beyond the uncertainty already inherent in the reasonable-suspicion standard. As noted in its June 2014 Opinion, the Court, nevertheless, must consider that inherent uncertainty when it considers the sufficiency of the revised DHS TRIP procedures as a whole.
(2) Utility of Additional Procedural Safeguards
Plaintiffs also contend the revised DHS TRIP procedures are constitutionally deficient because Plaintiffs were not provided with (1) a full statement of the reasons for their placement on the No-Fly List; (2) all of the evidence that supported the reasons for their placement on the No-Fly List; 37- OPINION AND ORDER

(3) all material and exculpatory evidence in Defendants’ possession; (4) a live hearing before a neutral decision-maker together with an opportunity to confront and to cross-examine live witnesses; and (5) additional procedures based on the CIPA, including the use of protective orders, unclassified summaries of classified information, and additional classified disclosures to Plaintiffs' counsel with security clearances.
Defendants, in turn, contend Plaintiffs’ proposed additional procedural safeguards are not necessary to pass due-process muster, and the revised DHS TRIP procedures provide Plaintiffs with sufficient notice and an opportunity to be heard and to challenge their placement on the No-Fly List.
(a) Full Statement of Reasons Plaintiffs first contend the revised DHS TRIP procedures are inadequate because Defendants did not provide Plaintiffs with a full statement of the reasons that justified placement on the No-Fly List. As noted, each Plaintiff received letters that provided an unclassified summary of some of the reasons he was placed on the No-Fly List and that also indicated Defendants were “unable to provide additional disclosures” regarding that Plaintiff’s placement on the No-Fly List. Plaintiffs, therefore, contend they cannot have a meaningful opportunity to respond to the reasons for their placement on the No-Fly List unless they are provided with notice of all of those
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reasons. Plaintiffs rely on Al Haramain for the
premise that constitutionally-sufficient notice must be complete and precise and that a failure to provide a full list of reasons for placement on the No-Fly List is a due-process violation. See 686 F.3d at 986 (“because [plaintiff] AHIF–Oregon could only guess (partly incorrectly) as to the reasons for the investigation, the risk of erroneous deprivation was high.”). See also Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 318 (D.C. Cir. 2014)(“the right to know the factual basis for the action and the opportunity to rebut the evidence supporting that action are essential components of due process.”).
In its June 2014 Opinion the Court recognized this principle and noted the Al Haramain court’s holding that “‘[i]n the absence of national security concerns, due process requires [defendant] OFAC to present the entity with, at a minimum, a timely statement of reasons for the investigation.’” Latif, 28 F. Supp. 3d at 1160 (quoting Al Haramain, 686 F.3d at 987). The Court also pointed out, however, that the Al Haramain court qualified the defendants’ duty to provide a full statement of reasons as follows:
As to national security concerns about providing a statement of reasons for the deprivation or permitting counsel with security clearance to view the classified information, the [Al Haramain] court “recognize[d] that 39- OPINION AND ORDER

disclosure may not always be possible” and that the agency may in some cases withhold such mitigating measures after considering “at a minimum, the nature and extent of the classified information, the nature and extent of the threat to national security, and the possible avenues available to allow the designated person to respond more effectively to the charges.”
Latif, 28 F. Supp. 3d at 1160 (quoting Al Haramain, 686 F.3d at
983-84). Accordingly, this Court held:
Because due process requires Defendants to provide Plaintiffs . . . with notice regarding their status on the No–Fly List and the reasons for placement on that List, it follows that such notice must be reasonably calculated to permit each Plaintiff to submit evidence relevant to the reasons for their respective inclusions on the No–Fly List.
Latif, 28 F. Supp. 3d at 1162. Although this Court declined to
formulate the specific procedures by which Defendants could
provide sufficient notice to Plaintiffs when national security
concerns prevented full disclosure, the Court acknowledged such
procedures “could include, but are not limited to, the procedures
identified by the Ninth Circuit in Al Haramain; that is,
Defendants may choose to provide Plaintiffs with unclassified
summaries of the reasons for their respective placement on the
No–Fly List or disclose the classified reasons to properly
cleared counsel.” Id. The Court also found it could not
“foreclose the possibility that in some cases such disclosures
may be limited or withheld altogether because any such disclosure
would create an undue risk to national security.” Id. Under
such circumstances, however, Defendants were required to “make
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such a determination on a case-by-case basis including consideration of, at a minimum, the factors outlined in Al Haramain; i.e., (1) the nature and extent of the classified information, (2) the nature and extent of the threat to national security, and (3) the possible avenues available to allow the Plaintiff to respond more effectively to the charges.” Id. Finally, the Court emphasized any such “determination must be reviewable by the relevant court.” Id.
After reviewing the parties’ arguments in the context of this more fully-developed record, the Court adheres to its June 2014 Opinion as to the standard that Defendants must satisfy with respect to providing Plaintiffs with notice of the reasons for their placement on the No-Fly List; that is, Defendants must provide each Plaintiff with a statement of reasons that is sufficient to permit such Plaintiff to respond meaningfully. Applying that standard, the Court concludes the revised DHS TRIP procedures as to this issue appear facially adequate because the notice letters sent to Plaintiffs “provided an unclassified summary that included reasons for the placement of each individual on the No-Fly List.” Joint Combined Statement of Agreed Facts Relevant to All Plaintiffs (#173) at 6. Significantly, however, the Court cannot conclude on this record whether the statement of reasons that Defendants provided to each Plaintiff was constitutionally sufficient because the current
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record does not reflect what information Defendants withheld or the reasons for withholding such information.
Accordingly, the Court concludes the record is insufficient for the Court to make any ruling as to the constitutional sufficiency of the specific disclosures made to each of the six remaining Plaintiffs.
(b) Evidence Supporting the Reasons for Placement on the No-Fly List
Plaintiffs also contend they are entitled to know what evidence underlies Defendants’ reasons for placing Plaintiffs on the No-Fly List. Plaintiffs contend even though the notice letters that Defendants sent to Plaintiffs made reference to evidence such as recordings of conversations with third parties, memorialized statements that were made by Plaintiffs, and transcripts or recordings of conversations with confidential informants, Defendants did not provide Plaintiffs with any of this evidence. Again, to support their position Plaintiffs largely rely on deportation cases in which courts have “acknowledg[ed] the importance of the right to confront evidence and cross-examine witnesses in immigration cases.” Cinapian v. Holder, 567 F.3d 1067, 1075 (9th Cir. 2009). Plaintiffs assert under the revised DHS TRIP procedures they were not provided with any of the evidence (classified or unclassified) that Defendants relied on to place Plaintiffs on the No-Fly List, and, therefore, Plaintiffs contend those procedures do not satisfy due process. 42- OPINION AND ORDER

Defendants, on the other hand, contend the unclassified summaries provided to Plaintiffs are sufficient to permit Plaintiffs to respond meaningfully, and, therefore, the revised procedures satisfy the standard that the Court set out in its June 2014 Opinion and the requirements of due process.
In its June 2014 Opinion the Court held Defendants were required to provide notice of the reasons for Plaintiffs’ placement on the No-Fly List and that the notice “must be reasonably calculated to permit each Plaintiff to submit evidence relevant to the reasons for their respective inclusions on the No–Fly List.” Latif, 28 F. Supp. 3d at 1162. The Court, however, did not specifically address whether due process requires Defendants to provide to Plaintiffs the actual evidence as opposed to a summary of the reasons subject to withholding information for national security reasons. Id.
As the Al Haramain court held and this Court noted in its June 2014 Opinion, “subject to the limitations discussed below, the government may use classified information, without disclosure, when making designation determinations.” Al Haramain, 686 F.3d at 982. See also Latif, 28 F. Supp. 3d at 1154 (“Obviously, the Court cannot and will not order Defendants to disclose classified information to Plaintiffs.”). Accordingly, procedural due process does not require Defendants to provide to Plaintiffs classified information.
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Moreover, the Court concludes procedural due process does not require Defendants to provide to Plaintiffs the actual evidence supporting Defendants’ reasons for placing Plaintiffs on the No-Fly List as long as Defendants provide Plaintiffs with sufficient information to permit them to respond meaningfully to the reasons that Defendants are able to disclose. Requiring Defendants to provide such evidence in its original form raises significant and likely insoluble practical difficulties because, unlike the context of ordinary civil litigation, separating unclassified information from protected national security information is exceedingly complicated in the national security context.6
Nonetheless, the principles that set the constitutional standard and that the Court applied in its June 2014 Opinion remain: Subject to Defendants’ duty not to disclose classified information, Plaintiffs must be provided with sufficient notice of the reasons for their placement on the NoFly List to permit them to have a meaningful opportunity to respond to those reasons. Defendants, therefore, need not present the information in any particular form (i.e., original evidence). Moreover, to the extent that Defendants rely on
6 For example, a report may contain material, unclassified information regarding an individual placed on the No-Fly List interspersed with classified information that may or may not be material to the No-Fly List determination. 44- OPINION AND ORDER

sensitive national security information to maintain any Plaintiff’s placement on the No-Fly List, Defendants must consider and implement procedures (for example, unclassified summaries or disclosures made to counsel with the appropriate security clearances) that would permit Plaintiffs to respond meaningfully without creating an undue risk to national security. As noted, if Defendants determine information must be withheld because its disclosure would create an undue risk to national security, Defendants
must make such a determination on a case-by-case basis including consideration of, at a minimum, the factors outlined in Al Haramain; i.e., (1) the nature and extent of the classified information, (2) the nature and extent of the threat to national security, and (3) the possible avenues available to allow the Plaintiff to respond more effectively to the charges. Latif, 28 F. Supp. 3d at 1162 (citing Al Haramain, 686 F.3d at 984).
Although the Court concludes Defendants’ revised DHS TRIP procedures in principle are not inconsistent with this requirement, the Court again notes it cannot determine from this record whether the unclassified summaries of Defendants’ reasons for placing Plaintiffs on the No-Fly List conveyed sufficient material information to Plaintiffs to satisfy procedural due-process standards because the record does not reflect what information Defendants withheld or the reasons for withholding such information.
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In summary, on this record the Court concludes Defendants must provide Plaintiffs with sufficient material information in Defendants’ possession to permit Plaintiffs to respond meaningfully to the reasons that Defendants placed Plaintiffs on the No-Fly List. That disclosure, however, need not take the form of original evidence, and Defendants may withhold information when disclosure would create an undue risk to national security subject to Defendants’ obligation to implement appropriate procedures to minimize the amount of material information withheld. Defendants’ decision to withhold material information must itself be subject to judicial review. See Latif, 28 F. Supp. 3d at 1162. Thus, if Defendants determine any Plaintiff should remain on the No-Fly List and if Defendants withhold information from that Plaintiff during the DHS TRIP process, upon judicial review Defendants must identify for the appropriate court the information that was withheld, provide justification for withholding that information, and explain why they could not make additional disclosures to that Plaintiff. Defendants must accomplish these disclosures by including in the administrative record submitted to the appropriate court an affidavit or declaration from a competent witness with personal knowledge of the No-Fly List determination. Defendants’ revised
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DHS TRIP procedures appear to meet this standard in principle,7 but the record is currently insufficient for the Court to rule on the adequacy of the specific disclosures made to each of the six remaining Plaintiffs.
(c) Disclosure of Exculpatory Information
Plaintiffs contend the DHS TRIP procedures do not satisfy due process because Defendants must disclose to Plaintiffs all exculpatory information. This contention, however, is resolved in the same manner as Plaintiffs’ contentions that Defendants must disclose all material information because exculpatory information is, by definition, material. See Skinner v. Switzer, 562 U.S. 521, 537 (2011)(“Brady evidence is, by definition, always favorable to the defendant and material to his guilt or punishment.”). In any event, if Defendants possess exculpatory information that cannot be disclosed, Defendants must bring that information to the attention of the court reviewing the administrative record that documents the No-Fly List designation.
Accordingly, on this record the Court concludes Defendants’ obligation to disclose exculpatory information is the same as Defendants’ obligation to provide
7 The Court notes the revised DHS TRIP procedures provided to the Court do not include the procedures to be used during judicial review. 47- OPINION AND ORDER

other material information; i.e., as long as disclosure of the information would not create an undue risk to national security, Defendants must provide sufficient material information, whether exculpatory or inculpatory, to each Plaintiff in order to permit such Plaintiff to respond meaningfully to the reasons he has been placed on the No-Fly List. As noted, however, this record is insufficient for the Court to determine whether the information provided to each Plaintiff satisfies this standard.
(d) Live Hearing Before a Neutral Decision-Maker and Right to Confront Witnesses
Plaintiffs also contend the revised DHS TRIP procedures are insufficient because they do not provide Plaintiffs with the opportunity to appear at a live hearing before a neutral decision-maker and to confront and to crossexamine live witnesses. Plaintiffs again analogize to deportation cases to support their position that due process requires Defendants to provide Plaintiffs with a live hearing. See Oshodi v. Holder, 729 F.3d 883, 889 (9th Cir. 2013). As noted, Plaintiffs contend “[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg v. Kelly, 397 U.S. 254, 269 (1970). See also Cinapian, 567 F.3d at 1074-76. Plaintiffs contend a live hearing with confrontation of witnesses is especially important
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in this context because, as some of the notice letters provided to Plaintiffs reveal, No-Fly List determinations often turn on the credibility of witnesses, contested facts, and hearsay evidence.
Defendants, on the other hand, assert due process does not require a live or adversarial hearing in this context. The Court agrees. As Defendants point out, courts have approved procedures that do not contain a live hearing in several circumstances, including the use of classified information in the designation of Specially Designated Global Terrorists (SDGT). See Al Haramain, 686 F.3d at 1001. See also Holy Land Found. for Relief and Dev. v. Ashcroft, 333 F.3d 156, 163 (D.C. Cir. 2003)). Defendants emphasize live, adversarial hearings are particularly inappropriate in this context because agencies that initially nominate individuals for the No-Fly List may rely on reporting from a wide variety of sources including foreign governments and confidential informants. Defendants contend subjecting such sources to cross-examination would risk exposing protected national security information in the unpredictable environment of a live hearing and hamper the government’s ability to gather intelligence from a variety of counterterrorism sources.
Again, the Court does not find persuasive Plaintiffs’ analogy of this case to deportation cases.
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The balance of interests with regard to placement on the No-Fly List is, however, similar to designation as an SDGT. As the Ninth Circuit explained in Al Haramain, the private party’s property interests were “significant” because designation as an SDGT “completely shutters all domestic operations of an entity,” freezes all of the entity’s assets, prohibits any person or organization from conducting “any business whatsoever with the entity,” and imposes civil and criminal penalties on those who violate the prohibitions. 686 F.3d at 980. “In sum, designation is not a mere inconvenience or burden on certain property interests; designation indefinitely renders a domestic organization financially defunct.” Id. Thus, although the nature of the private interests involved are different because an SDGT designation implicates the property interests of organizations whereas placement on the No-Fly List primarily implicates the liberty interests of individuals,8 the weight of those interests in a procedural due-process context are both on balance similarly significant. In light of the substantive similarity and the challenges inherent in the use of classified information, the Court finds Al Haramain and the other SDGT cases helpful.
8 Although designation as an SDGT only directly impacts an organization’s interest, it undoubtedly affects individuals indirectly through, for example, lost employment, investments, and/or donations. 50- OPINION AND ORDER

Although the Ninth Circuit in Al Haramain did not directly address whether a live, adversarial hearing was constitutionally necessary, the Court notes the Ninth Circuit ultimately found only harmless notice errors in the SDGTdesignation process, a procedure that did not include any live, adversarial hearing. Id. at 979-90. Accordingly, the Court concludes nothing in Al Haramain suggests a live, adversarial hearing is required in this context and, in fact, Al Haramain suggests a document-based hearing would be sufficient.
The Court, nevertheless, recognizes there are some differences between the nature of the evidence involved in Al Haramain and the evidence that may be needed to support No-Fly List designations for Plaintiffs. In particular, because the SDGT designation at issue in Al Haramain involved an organization, the evidence appears to have been documentoriented.9 See id. at 976-79. Placement of individuals on the No-Fly List, on the other hand, arguably presents a stronger need for a live, adversarial hearing because the evidence is more likely to be testimonial and intelligence-based. Nonetheless, the Court agrees with Defendants that a live, adversarial hearing is not a viable procedure in this context in light of the
9 The Court notes the Ninth Circuit, in any event, considered a classified record when it determined whether the government properly designated the plaintiff as an SDGT because of the plaintiff's support for “designated persons as a branch office of AHIF-Saudi Arabia.” Al Haramain, 686 F.3d at 979. 51- OPINION AND ORDER

sensitive nature of much of the evidence; the inherent unpredictability of a live, adversarial hearing; and the potential chilling effect that exposing sources of intelligence to cross-examination may have on intelligence-gathering. See Gen. Dynamics Corp. v. United States, 131 S. Ct. 1900, 1904 (2011)(noting a deposition with counsel on both sides having security clearances, nonetheless, resulted in inadvertent, unauthorized disclosure of military secrets).
In summary, on this record the Court concludes the revised DHS TRIP procedures are not constitutionally deficient because of the fact that Defendants did not provide Plaintiffs with the opportunity to participate in a live, adversarial hearing with witnesses subject to crossexamination.
(e) Use of CIPA-like Procedures Finally, Plaintiffs contend the revised DHS TRIP procedures are deficient because the process does not include procedures inspired by CIPA, including the use of protective orders, unclassified summaries of classified information,10 and additional, classified disclosures to counsel
10 The Court notes the DHS TRIP procedures provided to Plaintiffs permit the use of unclassified summaries of classified information and that Defendants provided unclassified summaries to at least some of the Plaintiffs. 52- OPINION AND ORDER

who have the appropriate security clearances.11 See 18 U.S.C. App. 3, § 6. Plaintiffs argue such additional procedures would allow Plaintiffs to respond to Defendants’ reasons for placing them on the No-Fly List more meaningfully without creating any additional risk to national security. Although Plaintiffs acknowledge CIPA does not directly apply in the civil context, Plaintiffs point out that courts have looked to CIPA as a helpful guide in civil cases, including in the Ninth Circuit’s 2012 opinion regarding this case. See Latif v. Holder, 686 F.3d 1122, 1130 (9th Cir. 2012).
Defendants, on the other hand, maintain CIPA applies only to criminal matters and is not applicable to civil and administrative matters. Moreover, Defendants contend CIPA is particularly inapplicable here because the government’s ultimate remedy under CIPA is to dismiss the criminal charges if it cannot employ an alternative means of disclosing classified information. In a civil case such as this one, however, the government cannot unilaterally end the lawsuit. 18 U.S.C. App. 3, § 6(e)(2)(A).
Moreover, Defendants contend a federal district court is not empowered to compel the Executive Branch to
11 Plaintiffs do not contend Defendants must provide Plaintiffs’ counsel with security clearances or that due process requires Defendants to provide Plaintiffs with lawyers that have such security clearance. 53- OPINION AND ORDER

disclose classified information to any other individual because the decisions to grant security clearances and to disclose classified information are within the sole discretion of the Executive Branch. See, e.g., Egan, 484 U.S. at 527-28; El-Masri v. United States, 479 F.3d 296, 311 (4th Cir. 2007). In any event, Defendants contend as a practical matter that disclosures to counsel who have security clearances would also implicate a threat to national security because such disclosures can still result in inadvertent, unauthorized disclosures. See Gen. Dynamics Corp., 131 S. Ct. at 1904.
The Court notes the Ninth Circuit in Al Haramain considered similar arguments and concluded: “To the extent that an unclassified summary could provide helpful information, such as the subject matter of the agency’s concerns, and to the extent that it is feasible to permit a lawyer with security clearance to view the classified information, the value of those methods seems undeniable.” 686 F.3d at 982-83. The Ninth Circuit, accordingly, found “a lawyer for the designated entity who has the appropriate security clearance also does not implicate national security when viewing the classified material because, by definition, he or she has the appropriate security clearance.” Id. at 983. The Ninth Circuit, however, did not foreclose the possibility that in some circumstances the government “might have a legitimate interest in shielding the
54- OPINION AND ORDER

materials even from someone with the appropriate security clearance.” Id. Nonetheless, the Ninth Circuit concluded “[i]n many cases . . . some information could be summarized or presented to a lawyer with a security clearance without implicating national security.” Id.
As this Court found in its June 2014 Opinion, Defendants can use procedures in the context of this case similar to those approved by the Ninth Circuit in Al Haramain. See Latif, 28 F. Supp. 2d at 1162 (noting procedures for mitigation of withholding information for national security purposes “could include, but are not limited to, the procedures identified by the Ninth Circuit in Al Haramain; that is, Defendants may choose to provide Plaintiffs with unclassified summaries of the reasons for their respective placement on the No–Fly List or disclose the classified reasons to properly-cleared counsel.”). Although the Court notes the utility of making additional disclosures to counsel with appropriate security clearances may be limited because counsel will often be prohibited from sharing that information with their clients, “limited utility is very different from no utility.” Al Haramain, 686 F.3d at 983 n.10.
Accordingly, on this record the Court adheres to its June 2014 Opinion and, applying the principles expressed in Al Haramain, the Court concludes to the extent that
55- OPINION AND ORDER

Defendants withhold information from any Plaintiff because the disclosure would create an undue risk to national security, Defendants must implement procedures to minimize the amount of material information withheld. When possible, Defendants must determine whether the information can be summarized in an unclassified summary and/or whether additional disclosures can be made to Plaintiffs’ counsel who have the appropriate security clearances. The Court, however, cannot conclude on this record whether the revised DHS TRIP procedures that Defendants provided to these Plaintiffs satisfied this requirement because the record does not reflect what information Defendants withheld or Defendants’ reasons for withholding that information. Moreover, the record does not reflect whether any Plaintiff is represented by counsel with an appropriate security clearance.
3. Summary Conclusion For these reasons, the Court adheres to the conclusion that Defendants must provide to each Plaintiff (1) a statement of reasons for that Plaintiff’s placement on the No-Fly List that is sufficient to permit such Plaintiff to respond meaningfully to those reasons and (2) any material exculpatory or inculpatory information in Defendants’ possession that is necessary for such a meaningful response. Defendants may limit or withhold disclosures altogether in the event such disclosures would create an undue risk to national security. In such instances
56- OPINION AND ORDER

Defendants, nevertheless, must implement procedures to minimize the amount of material withheld. When possible, Defendants must determine whether the information can be summarized in an unclassified summary and/or whether additional disclosures can be made to Plaintiffs’ counsel who have the appropriate security clearances. When possible, Defendants must do so. When it is not possible, Defendants must so certify through a competent witness with personal knowledge.
When a Plaintiff seeks substantive judicial review of Defendants’ determination that the Plaintiff must remain on the No-Fly List, Defendants must include with the administrative record submitted to the appropriate court an affidavit or declaration from a competent witness with personal knowledge of the No-Fly List determination that identifies for the court the information that was withheld, provides justification for withholding that information, and explains why Defendants could not make additional disclosures.
Accordingly, on this record the Court denies Plaintiffs’ Renewed Combined Motion (#206) for Partial Summary Judgment and grants in part and denies in part Defendants’ Combined Cross-Motion (#251) for Partial Summary Judgment.
C. Analysis of Parties’ Individual Cross-Motions for Partial Summary Judgment
As noted, in addition to the Renewed Combined Motions for Partial Summary Judgment, each Plaintiff also moves for summary 57- OPINION AND ORDER

judgment on their procedural due-process claim as to the revised DHS TRIP procedures applied to them. Defendants, in turn, separately move for summary judgment as to each individual Plaintiff.
After reviewing the individual cross-motions, the Court concludes the same analysis used to resolve the collective crossmotions applies to the individual cross-motions. To the extent that Plaintiffs assert they have not been provided with sufficient notice of the reasons for their placement on the NoFly List or provided with the evidence supporting those reasons (and, conversely, to the extent that Defendants assert they provided sufficient notice to Plaintiffs), the Court cannot enter summary judgment for any party because the record does not reflect what information Defendants withheld nor the reasons for withholding that information. Moreover, to the extent that Plaintiffs contend Defendants did not adequately employ procedures designed to minimize the amount of information withheld (i.e., unclassified summaries or additional disclosures to counsel with security clearances), the record is currently insufficient to permit the Court to enter summary judgment in any party’s favor for the same reason in addition to the fact that the record does not reflect whether any Plaintiff is represented
58- OPINION AND ORDER

by counsel who have the appropriate security clearance. All other issues raised in the parties’ individual cross-motions are resolved in the same manner that the Court resolved those issues as to the collective cross-motions.
Accordingly, on this record the Court defers ruling as to Plaintiffs’ individual Renewed Motions (#210, #212, #214, #216, #218, #220) for Partial Summary Judgment and Defendants’ CrossMotions (#241, #242, #247, #248, #249, #250) for Partial Summary Judgment regarding individual Plaintiffs. II. Administrative Procedure Act Claims
As noted, the parties each move for summary judgment both collectively and individually on Plaintiffs’ APA claim under 5 U.S.C. § 706(2)(A) and § 706(2)(B), and, as noted in the Court’s June 2014 Opinion, Plaintiffs’ APA claims mirror their procedural due-process claims. See Latif, 28 F. Supp. 3d at 1162-63. Accordingly, the Court resolves the parties’ crossmotions concerning Plaintiffs’ APA claims using the same analysis that the Court applied to Plaintiffs’ procedural due-process claims.
CONCLUSION For these reasons, the Court GRANTS in part and DENIES in part Defendants’ Combined Cross-Motion (#251) for Partial Summary
59- OPINION AND ORDER

Judgment; DENIES Plaintiffs’ Renewed Combined Motion (#206) for Partial Summary Judgment; and DEFERS RULING on Defendants’ CrossMotions (#241, #242, #247, #248, #249, #250) for Partial Summary Judgment regarding individual Plaintiffs and Plaintiffs’ individual Renewed Motions (#210, #212, #214, #216, #218, #220) for Partial Summary Judgment until Defendants supplement the record with sufficient information to rule on the individual cross-motions.
CASE-MANAGEMENT ORDER Before the parties and the Court can move forward on other issues in this action, including the substantive due-process question whether any of the six remaining Plaintiffs are properly placed on the No-Fly List, the Court must complete adjudication of the pending Motions on which it has deferred ruling. Accordingly, no later than April 18, 2016, the Court directs Defendants to submit to the Court as to each Plaintiff the following: (1) a summary of any material information (including material exculpatory or inculpatory information) that Defendants withheld from the notice letters sent to each Plaintiff and (2) an explanation of the justification for withholding that information, including why Defendants could not make additional disclosures.
60- OPINION AND ORDER

Defendants’ supplemental submission may be in the form of declarations or other statements from an officer or officers with personal knowledge of the No-Fly List determinations as to each Plaintiff. If necessary to protect sensitive national security information, Defendants may make such submissions ex parte and in camera. If Defendants submit any materials ex parte and in camera, however, Defendants must also make a filing on the public record that memorializes the submission and provides as much public disclosure of the substance of Defendants’ submission as national security considerations allow.
To the extent that Plaintiffs wish to respond to Defendants’ next submissions as set out above, Plaintiffs must do so no later than May 9, 2016, when the Court will again take this issue under advisement without further briefing or oral argument.
After the Court completes its consideration of Plaintiffs’ procedural due-process and APA claims on the supplemented record, the Court will set an expedited briefing schedule to consider Defendants’ recent contention that revisions in their administrative procedures (under which the Acting Administrator of the TSA is now responsible for issuing a final determination regarding DHS TRIP inquiries) effectively abrogate the Ninth Circuit’s holdings that this Court has jurisdiction to continue
61- OPINION AND ORDER

to adjudicate Plaintiffs’ remaining claims. See Latif, 686 F.3d 1122. See also Arjmand v. United States Dep’t of Homeland Sec., 745 F.3d 1300 (9th Cir. 2014).
IT IS SO ORDERED. DATED this 28th day of March, 2016.
/s/ Anna J. Brown ANNA J. BROWN United States District Judge
62- OPINION AND ORDER

 
 Case 3:10-cv-00750-BR Document 337 Filed 10/06/16 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

AYMAN LATIF; MOHAMED SHEIKH ABDIRAHMAN KARIYE; RAYMOND EARL KNAEBLE, IV; NAGIB ALI GHALEB; ABDULLATIF MUTHANNA; FAISAL NABIN KASHEM; ELIAS MUSTAFA MOHAMED; IBRAHEIM Y. MASHAL; SALAH ALI AHMED; AMIR MESHAL; STEPHEN DURGA PERSAUD; and MASHAAL RANA,
Plaintiffs,
v.
LORETTA E. LYNCH, in her official capacity as Attorney General of the United States; JAMES B. COMEY, in his official capacity as Director of the Federal Bureau of Investigation; and CHRISTOPHER M. PIEHOTA, in his official capacity as Director of the FBI Terrorist Screening Center,
Defendants.

3:10-cv-00750-BR ORDER

BROWN, Judge. This matter comes before the Court on the parties' remaining
Cross-Motions for Summary Judgment. Those Motions are:

1 - ORDER

Case 3:10-cv-00750-BR Document 337 Filed 10/06/16 Page 2 of 6
1. Plaintiffs' individual Renewed Motions (#210, #212, #214, #216, #218, #220) for Partial Summary Judgment; and
2. Defendants' Cross-Motions (#241, #242, #247, #248, #249, #250) for Partial Summary Judgment regarding individual Plaintiffs.
On March 28, 2016, the Court issued an Opinion and Order (#321), Latif v. Lynch, No. 3:10-cv-00750-BR, 2016 WL 1239925, at *15 (D. Or. Mar. 28, 2016), in which it granted in part and denied in part Defendants' Combined Cross-Motion (#251) for Partial Summary Judgment; denied Plaintiffs' Renewed Combined Motion (#206) for Partial Summary Judgment; and deferred ruling on Defendants' Cross-Motions (#241, #242, #247, #248, #249, #250) for Partial Summary Judgment regarding individual Plaintiffs and Plaintiffs' individual Renewed Motions (#210, #212, #214, #216, #218, #220) for Partial Summary Judgment to permit Defendants to supplement the record as the Court directed with sufficient information fo~ the Court to complete its analysis and rule on those Motions. In particular, the Court concluded in its Opinion and Order that it could not completely resolve the parties' Cross-Motions as to procedural due-process because it could not ~determine from this record whether the unclassified summaries of Defendants' reasons for placing Plaintiffs on the No-Fly List conveyed sufficient material information to Plaintiffs to satisfy procedural due-process standards because the record does not
2 - ORDER

Case 3:10-cv-00750-BR Document 337 Filed 10/06/16 Page 3 of 6
reflect what information Defendants withheld or the reasons for
withholding such information." Latif, 2016 WL 1239925, at *15.
Accordingly, the Court directed Defendants to
submit to the Court as to each Plaintiff the following: (1) a summary of any material information (including material exculpatory or inculpatory information) that Defendants withheld from the notice letters sent to each Plaintiff and (2) an explanation of the justification for withholding that information, including why Defendants could not make additional disclosures.
Id., at 20. The Court stated:
Defendants' supplemental submission may be in the form of declarations or other statements from an officer or officers with personal knowledge of the No-Fly List determinations as to each Plaintiff. If necessary to protect sensitive national security information, Defendants may make such submissions ex parte and in camera. If Defendants submit any materials ex parte and in camera, however, Defendants must also make a filing on the public record that memorializes the submission and provides as much public disclosure of the substance of Defendants' submission as national security considerations allow.
Id. As noted, this matter is now back before the Court on those
still unresolved Cross-Motions for Summary Judgment.'
Since the Court's March 28, 2016, Opinion and Order,
Plaintiffs filed on April 12, 2016, a Notice (#324) of the Death
of a Party, Steven William Washburn. Because Washburn only
sought prospective relief, Plaintiffs concede all claims as to
1 The Court incorporates herein the factual background and legal analysis in its March 28, 2016, Opinion and Order (#321), see Latif, 2016 WL 1239925, and will not restate those matters in this Order.
3 - ORDER

Case 3:10-cv-00750-BR Document 337 Filed 10/06/16 Page 4 of 6
Washburn may now be dismissed as moot. Accordingly, the Court
DISMISSES with prejudice Plaintiff's Third Amended Complaint as
to Washburn. On May 5, 2016, after obtaining an extension of time to
file their supplemental materials, Defendants filed a Second
Supplemental Memorandum (#327) in Support of their Motion for
Summary Judgment together with a Notice (#328) of Lodging Ex
Parte, In Camera Materials in which Defendants publicly stated it
had lodged "with the Department of Justice's Classified Information Security Officer ("CISO") the classified declaration of Michael Steinbach" for secure storage and transmission to the Court. On May 26, 2016, Plaintiffs filed a Response (#329) to
Defendants' Second Supplemental Memorandum in Support of their Motion for Summary Judgment.
On July 7, 2016, the Court issued the following Order
(#330): The Court makes this record to give notice to Plaintiffs that the Court has by separate Ex Parte Order filed with the Classified Information Security Officer directed Defendants to make a supplemental filing, ex parte and under seal if necessary, no later than August 1, 2016, regarding the materials referenced in Defendants' Notice (#328) of Lodging Ex Parte, In Camera Materials. After the Court considers that filing, the Court will determine whether the record is then sufficient for the Court to resolve the parties' pending cross-motions and will inform the parties accordingly.
On July 19, 2016, Defendants filed a Motion (#331) for Extension
of Time to File Supplemental Submission. On July 25, 2016,
4 - ORDER

Case 3:10-cv-00750-BR Document 337 Filed 10/06/16 Page 5 of 6
Plaintiffs opposed Defendants' Motion and requested "further information for the public record about the subject matter of the supplemental filing that Defendants have been directed to submit, including the basis for making that filing ex parte and in camera." Pls.' Opp'n (#333) to Defs.' Mot. for Extension of Time to File Supplemental Materials. On August 3, 2016, the Court granted Defendants' Motion for Extension of Time and concluded it was "unable to provide any additional explanation on the record." Order (#334) (issued Aug. 3, 2016).
On August 29, 2016, Defendants filed a Notice (#335) of Lodging ex Parte, in Camera Materials in response to the Court's Order (#330).
Having reviewed and considered all of the material Defendants submitted in response to the Court's March 28, 2016, Opinion and Order (#321) and the Court's July 7, 2016, Order (#330), the Court is satisfied that the materials filed by Defendants sufficiently address the issues raised in the Court's Ex Parte Order filed with the CISO on July 7, 2016.
In addition, after a thorough review of the materials submitted with Defendants' Notice (#328) of Lodging Ex Parte, In Camera Materials filed in response to the Court's March 28, 2016, Opinion and Order (#321), the Court concludes Defendants have provided sufficient justifications for withholding additional information in response to each of the Plaintiffs' revised OHS
5 - ORDER

Case 3:10-cv-00750-BR Document 337 Filed 10/06/16 Page 6 of 6
TRIP inquiries. Accordingly, based on the Court's Opinion and Order (#321)
and this Order, the Court now GRANTS Defendants' Cross-Motions (#241, #242, #247, #248, #249, #250) for Partial Surmnary Judgment regarding individual Plaintiffs and DENIES Plaintiffs' individual Renewed Motions (#210, #212, #214, #216, #218, #220) for Partial Surmnary Judgment.
CASE-MANAGEMENT ORDER Consistent with the Court's March 28, 2016, Order (#321), the Court directs the parties to submit a single, joint status report no later than October 20, 2016, with a proposed expedited briefing schedule for the Court to consider Defendants' argument that the revisions in the DHS TRIP procedures ~effectively abrogate the Ninth Circuit's holdings that this Court has jurisdiction to continue to adjudicate Plaintiffs' remaining claims." Opinion and Order (#321) at 61-62; Latif, 2016 WL 1239925, at *20. IT IS SO ORDERED. DATED this 6th day of October, 2016.
~{)rf(fh~
ANNA J. BROWY United States District Judge
6 - ORDER

 
 Case 3:10-cv-00750-BR Document 356 Filed 04/21/17 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

AYMAN LATIF; MOHAMED SHEIKH ABDIRAHMAN KARIYE; RAYMOND EARL KNAEBLE IV; NAGIB ALI GHALEB; ABDULLATIF MUTHANNA; FAISAL NABIN KASHEM; ELIAS MUSTAFA MOHAMED; IBRAHEIM Y. MASHAL; SALAH ALI AHMED; AMIR MESHAL; STEPHEN DURGA PERSAUD; and MASHAAL RANA,
Plaintiffs,
v.
JEFFERSON B. SESSIONS III,1 in his official capacity as Attorney General of the United States; JAMES B. COMEY, in his official capacity as Director of the Federal Bureau of Investigation; and CHRISTOPHER M. PIEHOTA, in his official capacity as Director of the FBI Terrorist Screening Center,
Defendants.

3:10-cv-00750-BR OPINION AND ORDER

STEVEN M. WILKER Tonkon Torp LLP 888 S.W. 5th Avenue, Suite 1600 Portland, OR 97204-2099 (503) 802-2040

1 The Court substitutes Jefferson B. Sessions III as Attorney General of the United States, who was sworn in on February 29, 2017.
1 - OPINION AND ORDER

Case 3:10-cv-00750-BR Document 356 Filed 04/21/17 Page 2 of 31
HINA SHAMSI HUGH HANDEYSIDE American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500
AHILAN ARULANANTHAM CATHERINE A. WAGNER ACLU Foundation of Southern California 1313 West 8th Street Los Angeles, CA 90017 (213) 977-9500
ALAN L. SCHLOSSER JULIA HARUMI MASS ACLU of Northern California 39 Drumm Street San Francisco, CA 94111 (415) 621-2493
MITCHELL P. HURLEY JUSTIN H. BELL Akin Gump Strauss Hauer & Feld LLP One Bryant Park New York, NY 10036 (212) 872-1011
Attorneys for Plaintiffs Mohamed Sheikh Abdirahman Kariye, Faisal Kashem, Raymond Earl Knaeble, Amir Mohamed Meshal, and Steven Washburn
WILLIAM GENEGO 2115 Main Street Santa Monica, CA 90405 (310) 399-3259
JOEL P. LEONARD Elliot, Ostrander & Preston, P.C. Union Bank of California Tower 707 S.W. Washington Street, Suite 1500 Portland, OR 97205 (503) 224-7112
Attorneys for Plaintiff Stephen Persaud
2 - OPINION AND ORDER

Case 3:10-cv-00750-BR Document 356 Filed 04/21/17 Page 3 of 31
JEFFERSON B. SESSIONS III United States Attorney General BENJAMIN C. MIZER Principal Deputy Assistant Attorney General ANTHONY J. COPPOLINO Deputy Branch Director AMY ELIZABETH POWELL BRIGHAM J. BOWEN SAMUEL M. SINGER United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, DC 20001 (202) 514-9836
BILLY J. WILLIAMS United States Attorney JAMES E. COX, JR. Assistant United States Attorney District of Oregon 1000 S.W. Third Avenue, Ste. 600 Portland, OR 97204 (503) 727-1026
Attorneys for Defendants
BROWN, Judge.
This matter comes before the Court on Defendants’ Motion
(#348) to Dismiss for Lack of Jurisdiction and Plaintiffs’ Motion
(#352) for Leave to Conduct Limited Jurisdictional Discovery.
The Court concludes the record on these Motions is sufficiently
developed such that oral argument would not be helpful. For the
reasons that follow, the Court GRANTS Defendants’ Motion (#348)
to Dismiss for Lack of Jurisdiction and DENIES Plaintiffs’ Motion
(#352) for Leave to Conduct Limited Jurisdictional Discovery.
3 - OPINION AND ORDER

Case 3:10-cv-00750-BR Document 356 Filed 04/21/17 Page 4 of 31
BACKGROUND The Court set out the complete factual background of this case in its Opinion and Order (#321) issued March 28, 2016, and Opinion and Order (#136) issued June 24, 2014. The Court sets out herein only the factual background necessary to resolve the parties’ Motions. I. No-Fly List and Original DHS TRIP Procedures Plaintiffs instituted this action on June 30, 2010, challenging their alleged placements on the No-Fly List and the procedures that the government provided under the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP) to challenge placements on the No-Fly List. Plaintiffs seek only prospective relief in this action. Individuals who are placed on the No-Fly List are prohibited from boarding any commercial flight that will pass through or over United States airspace. The No-Fly List is a subset of the consolidated Terrorist Screening Database (TSDB), which is maintained by the Terrorist Screening Center (TSC). The TSC is administered by the Federal Bureau of Investigation (FBI) and is staffed by multiple agencies. Although the TSC is responsible for maintaining the TSDB (including the No-Fly List), nominations to the TSDB are made by multiple law-enforcement and nationalsecurity agencies.
At the time Plaintiffs instituted this action a traveler
4 - OPINION AND ORDER

Case 3:10-cv-00750-BR Document 356 Filed 04/21/17 Page 5 of 31
who was denied boarding a commercial airline could submit an application for redress through DHS TRIP. DHS TRIP would determine whether the traveler is an exact or near match to an individual in the TSDB and, if so, would forward the request to the TSC. On receipt of the inquiry the TSC would double-check to ensure the traveler was an exact match to an identity in the TSDB and, if so, determine whether the traveler should continue to be in the TSDB.
After the TSC completed its review, it would notify DHS TRIP of its determination and DHS TRIP would send a determination letter advising the traveler that DHS TRIP had completed its review. Notably, the DHS TRIP determination letter did not confirm or deny whether the traveler was in the TSDB or on the No-Fly List and did not provide any further details about why the traveler may or may not have been in the TSDB or on the No-Fly List. Moreover, pursuant to these original procedures, the DHS TRIP determination letters did not provide assurances about the traveler’s ability to undertake future travel nor any meaningful opportunity to contest or to correct the record on which any such determination was based. In some cases the DHS TRIP determination letter advised the traveler that he or she could pursue an administrative appeal of the determination with the Transportation Security Administration (TSA) or could seek judicial review in a United States court of appeals pursuant to
5 - OPINION AND ORDER

Case 3:10-cv-00750-BR Document 356 Filed 04/21/17 Page 6 of 31
49 U.S.C. § 46110. II. Jurisdiction Over Plaintiffs’ Claims Challenging Placement
on the No-Fly List and the DHS TRIP Process On May 3, 2011, this Court dismissed this action on the grounds that Plaintiffs failed to join the TSA, an indispensable party, and that jurisdiction over Plaintiffs’ challenges to their placements on the No-Fly List and the DHS TRIP procedures rested in the Ninth Circuit Court of Appeals pursuant to 49 U.S.C. § 46110(a). See Latif v. Holder, No. 3:10-cv-00750-BR, 2011 WL 1667471 (D. Or. May 3, 2011). On November 19, 2012, the Ninth Circuit Court of Appeals held Plaintiffs’ claims did not challenge a TSA order, and, therefore, § 46110(a) did not vest jurisdiction over this action in the Court of Appeals. See Latif v. Holder, 686 F.3d 1122 (9th Cir. 2012). Accordingly, the Ninth Circuit reversed and remanded the case back to this Court. III. This Court’s Opinion and Order issued June 24, 2014 On June 24, 2014, this Court denied Defendants’ Cross-Motion (#85) for Partial Summary Judgment and granted Plaintiffs’ CrossMotion (#91) for Partial Summary Judgment as to Plaintiffs’ related procedural due-process and Administrative Procedure Act (APA) claims in which Plaintiffs asserted the DHS TRIP procedures were constitutionally deficient. See Latif v. Holder, 28 F. Supp. 3d 1134 (D. Or. 2014). The Court held the DHS TRIP procedures fell “far short of satisfying the requirements of due 6 - OPINION AND ORDER

Case 3:10-cv-00750-BR Document 356 Filed 04/21/17 Page 7 of 31
process” Id. at 1161. The Court found due process required Defendants to provide Plaintiffs “with notice regarding their status on the No–Fly List and the reasons for placement on that List” and that such notice “must be reasonably calculated to permit each Plaintiff to submit evidence relevant to the reasons for their respective inclusions on the No–Fly List.” Id. at 1162. Nevertheless, the Court concluded it could not “foreclose the possibility that in some cases such disclosures may be limited or withheld altogether because any such disclosure would create an undue risk to national security.” Id. The Court, however, held any such determination must be made on a case-bycase basis and must, at a minimum, consider “(1) the nature and extent of the classified information, (2) the nature and extent of the threat to national security, and (3) the possible avenues available to allow the Plaintiff to respond more effectively to the charges.” Id. IV. Revised DHS TRIP Procedures and Reconsideration of
Plaintiffs’ DHS TRIP Inquiries Following this Court’s Opinion and Order issued June 24, 2014, and pursuant to the Court’s Case-Management Order (#152) issued October 3, 2014, Defendants disclosed on October 10, 2014, that seven of the Plaintiffs were not on the No-Fly List at that time. In addition, Defendants revised the DHS TRIP procedures to address the deficiencies that the Court identified in its June 24, 2014, Opinion and Order. 7 - OPINION AND ORDER

Case 3:10-cv-00750-BR Document 356 Filed 04/21/17 Page 8 of 31
Under the new procedures DHS TRIP sent to each of the remaining Plaintiffs a notification letter that confirmed they were on the No-Fly List at that time, identified the applicable substantive criteria, and provided an unclassified summary that included at least some reasons for placement of each individual on the No-Fly List.2 Although the unclassified summaries varied in length and detail, the letters did not disclose all of the reasons or information on which Defendants relied to maintain each Plaintiff’s placement on the No-Fly List because, according to Defendants, they were unable to provide additional disclosures. The November 2014 DHS TRIP notification letters invited each Plaintiff to submit a written response by December 15, 2014, and each of the remaining Plaintiffs responded to the notification letters.
Pursuant to the revised procedures, if an individual timely responds to the second letter and requests additional review, DHS TRIP forwards the response and any enclosed information to the
2 In the ordinary course, this notification would be split into two steps. First, DHS TRIP (as noted, in consultation with TSC) would send to the traveler a notification letter that only indicates whether the traveler was on the No-Fly List. If the traveler is on the No-Fly List and requests additional information, the revised procedures call for DHS TRIP (in consultation with the TSC) to send the traveler a second notification letter that identifies the applicable substantive criteria and contains the unclassified summary of the reasons for the traveler’s placement on the List. Because of the procedural posture of this litigation, however, Defendants combined these two steps for the remaining Plaintiffs. 8 - OPINION AND ORDER

Case 3:10-cv-00750-BR Document 356 Filed 04/21/17 Page 9 of 31
TSC for consideration. Upon completion of TSC’s review of materials submitted to DHS TRIP, the TSC provides a written recommendation to the TSA Administrator as to whether the individual should be removed from or remain on the No-Fly List and the reasons for that recommendation. The information that the TSC provides to the TSA Administrator may be a summary of the information that the TSC relied on to make its determination regarding whether the individual should remain on the No-Fly List and does not necessarily include all underlying documentation. The TSC’s recommendation to the TSA Administrator may contain classified and/or law-enforcement sensitive information. In addition, DHS TRIP also provides the traveler’s complete DHS TRIP file to the TSA Administrator, including all information submitted by the traveler.
The revised DHS TRIP procedures also provide that after review of the record provided by TSC and DHS TRIP, the TSA Administrator may request additional information or consult with the TSC and/or other relevant agencies (including any nominating agency) regarding concerns that may arise from the recommendation or the record before the Administrator. The TSA Administrator may either adopt or reject the TSC’s recommendation. If the TSA Administrator issues a final order maintaining an individual on the No-Fly List, the order will state the basis for the decision to the extent possible without compromising national security or
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law-enforcement interests. If the TSA Administrator determines the traveler should not remain on the No-Fly List, the Administrator would then issue an order removing the traveler from the No-Fly List. The TSA Administrator is vested with the authority to determine whether the traveler will remain on or be removed from the No-Fly List and is not bound by the recommendation of the TSC. Upon issuance of the final order by the TSA Administrator, DHS TRIP provides TSC and the traveler with a copy of the final order.
In late 2014, pursuant to these revised procedures, Defendants reconsidered the DHS TRIP inquiries of the remaining six Plaintiffs (Mohamed Sheikh Abdirahman Kariye, Faisal Kashem, Raymond Earl Knaeble, Amir Meshal, Steven Washburn, and Stephen Persaud),3 but the TSA Administrator concurred with the TSC’s recommendation to keep each Plaintiff on the No-Fly List. The TSA Administrator then issued orders to that effect.
Plaintiffs, nevertheless, contended the revised DHS TRIP process still violated their rights to procedural due process, and, therefore, on March 17, 2015, Plaintiffs filed Motions for Partial Summary Judgment on their procedural due-process claims (both collectively and as to each individual Plaintiff).
3 On April 12, 2016, Plaintiffs filed a Notice (#324) of the Death of a Party in which it notified the Court that Plaintiff Steven William Washburn had passed away. Accordingly, five Plaintiffs remain actively involved in these proceedings. 10- OPINION AND ORDER

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Defendants filed Cross-Motions for Summary Judgment as to all Plaintiffs collectively and as to each Plaintiff individually in which Defendants contended the revised DHS TRIP process were constitutionally sufficient. V. Plaintiffs’ Procedural Due-Process Claims as to the Revised
DHS TRIP Process On March 28, 2016, the Court granted in part and denied in part Defendants’ Cross-Motion as to the Plaintiffs collectively, denied Plaintiffs’ collective Motion, and deferred ruling on the parties’ Cross-Motions as to the individual Plaintiffs. See Latif v. Lynch, No. 3:10-cv-00750-BR, 2016 WL 1239925 (D. Or. Mar. 28, 2016). The Court adhered to its ruling in the June 24, 2014, Opinion and Order and found the revised DHS TRIP process to be generally consistent with the standards the Court set out in that Order. The Court, however, also found the record was not sufficiently developed to permit the Court to determine whether Defendants provided each Plaintiff with the requisite notice and opportunity to be heard through the revised DHS TRIP procedures because the record did not identify the information that Defendants withheld from the notification letters sent to each Plaintiff. Accordingly, the Court directed Defendants to supplement the record (ex parte and in camera if necessary to protect sensitive national-security information) with a summary of the material information that Defendants withheld from the notice letters sent to each Plaintiff together with a 11- OPINION AND ORDER

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justification for withholding that information. On May 5, 2016, Defendants filed their Supplemental
Memorandum together with a Notice indicating they had filed additional materials ex parte and in camera. On July 7, 2016, the Court directed Defendants to make an additional supplemental filing that could, if necessary, be filed ex parte and under seal. Defendants made their second supplemental submission on August 29, 2016.
Based on its consideration of the entirety of the record, the Court on October 6, 2016, granted Defendants’ Cross-Motions for Partial Summary Judgment as to the individual Plaintiffs and denied Plaintiffs’ individual Motions for Summary Judgment. In particular, the Court found “Defendants have provided sufficient justifications for withholding additional information in response to each of the Plaintiffs’ revised DHS TRIP inquiries.” Order (#337) at 5-6. Accordingly, the Court concluded the revised DHS TRIP procedures satisfied Plaintiffs’ rights to procedural due process.
DISCUSSION Defendants now move to dismiss this action on the basis that the Court of Appeals has jurisdiction over Plaintiffs’ remaining claims pursuant to § 46110 because those claims directly challenge the TSA Administrator’s recent orders to keep
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Plaintiffs on the No-Fly List under the revised DHS TRIP procedures. Plaintiffs, on the other hand, contend their claims still do not fall within the scope of § 46110 despite the revised DHS TRIP procedures, and, therefore, this Court continues to have jurisdiction pursuant to the Ninth Circuit’s previous mandate in this case.
Because Defendants’ Motion relies on factual developments that occurred after the filing of Plaintiffs’ Third Amended Complaint and that are not contained within the Third Amended Complaint, the Court construes Defendants’ Motion as a motion for summary judgment. See Fed. R. Civ. P. 12(d). I. Standards
Section 46110(a) “‘grants exclusive jurisdiction to the federal courts of appeals to ‘review’ the ‘order[s]’ of a number of agencies, including the Transportation Security Administration.’” Arjmand v. United States Dep’t of Homeland Sec., 745 F.3d 1300, 1302 (9th Cir. 2014)(quoting Ibrahim v. Dep’t of Homeland Sec., 538 F.3d 1250, 1254 (9th Cir. 2008)). “Section 46110 does not, however, grant circuit courts jurisdiction to review orders issued by TSC.” Arjmand, 745 F.3d at 1302.
The Ninth Circuit has considered the relationship between challenges to placement on the No-Fly List and § 46110(a) on three occasions.
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A. Ibrahim v. Department of Homeland Security In Ibrahim the plaintiff was placed on the No-Fly List and brought an action in the district court under the APA “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.” 538 F.3d at 1254. The district court in Ibrahim determined the TSC “actually compiles the list of names ultimately placed on the No-Fly List” and that the TSC is not part of the TSA or any other agency named in § 46110. Id. at 1254-55. The Ninth Circuit concluded “[b]ecause 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.” Id. at 1255. The government in Ibrahim also argued the court of appeals had jurisdiction over Ibrahim’s claim because it was “inescapably intertwined” with a TSA order. Id. The Ninth Circuit, however, noted the “inescapably intertwined” doctrine only “refer[s] to claims that are inescapably intertwined with [the court’s] review of an order.” Id. at 1255-56 (emphasis in original). The Ninth Circuit, therefore, found Ibrahim’s claim challenging the order placing her on the No-Fly List was not inextricably intertwined with an order under § 46110 because the challenged order was issued by an agency other than one named in § 46110. Id. at 1256.
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Finally, the Ninth Circuit also noted the lack of any administrative record further suggested review should be by the district court because “it would make sense that [review] be in a court with the ability to take evidence.” Id.
B. Latif v. Holder As noted, this Court initially dismissed this action for lack of subject-matter jurisdiction because the Court initially held the court of appeals had jurisdiction over Plaintiffs’ claims pursuant to § 46110. The Ninth Circuit, however, reversed and remanded on the ground that this Court has subject-matter jurisdiction over both Plaintiffs’ substantive and procedural claims. The Ninth Circuit reasoned § 46110 does not apply to Plaintiffs’ substantive claims “[b]ecause TSC ‘actually compiles the list of names ultimately placed’ on the [No-Fly] List.” Latif, 686 F.3d at 1127 (quoting Ibrahim, 538 F.3d at 1255). With respect to Plaintiffs’ procedural due-process claims, however, the Ninth Circuit noted those claims “undoubtedly require[] at least some review of TSA’s orders, namely, the policies and procedures implementing DHS TRIP.” Latif, 686 F.3d at 1127. In addition to direct challenges to orders by agencies explicitly listed in § 46110, the Ninth Circuit noted “[t]he district court lacks jurisdiction to hear damages claims that are ‘inextricably intertwined with a review of the procedures and merits surrounding the agency’s order.’” Id. at 1228 (quoting
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Americopters, LLC v. Fed. Aviation Admin., 441 F.3d 726, 736 (9th Cir. 2006)). The court explained the “‘inextricably intertwined’ doctrine ‘prevents plaintiffs from crafting constitutional tort claims either as a means of relitigat[ing] the merits of the previous administrative proceedings, or as a way of evading entirely established administrative procedures.’” Latif, 686 F.3d at 1128 (quoting Americopters, 441 F.3d at 736).
In particular, the Ninth Circuit found “Plaintiffs’ procedural challenge requires judicial review of orders issued both by TSA, which is named in § 46110, and by TSC, which is not.” Id. at 1128. The Ninth Circuit, however, described the relationship between TSA and TSC as follows:
TSA’s implementation of DHS TRIP is at issue, but TSA is merely a conduit for a traveler’s challenge to inclusion on the List. TSA simply passes grievances along to TSC and informs travelers when TSC has made a final determination. TSC — not TSA — actually reviews the classified intelligence information about travelers and decides whether to remove them from the List. And it is TSC — not TSA — that established the policies governing that stage of the redress process. Id. Thus, the Ninth Circuit found “[i]f Plaintiffs are entitled to judicial relief, any remedy must involve both TSA and TSC,” and to the extent that Plaintiffs want to know why they were included on the No-Fly List and to have an opportunity to meaningfully respond, “[s]uch relief must come from TSC – the sole entity with both the classified intelligence information Plaintiffs want and the authority to remove them from the List.”
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Id. at 1129. The court, therefore, concluded: “[B]ecause we would not be able to provide relief simply by amending, modifying, or setting aside TSA’s orders or by directing TSA to conduct further proceedings, we lack jurisdiction under § 46110 to address Plaintiffs’ procedural challenge.” Id.
C. Arjmand v. United States Department of Homeland Security
The Ninth Circuit again revisited the issue in Arjmand. In Arjmand the plaintiff was twice subjected to additional screening procedures before boarding flights. 745 F.3d at 1301. Arjmand submitted a DHS TRIP inquiry that was processed according to the original DHS TRIP procedures described above. Id. After DHS TRIP sent the plaintiff his notification letter, the plaintiff filed a petition for review in the Ninth Circuit “seeking disclosure of his watchlist status, a meaningful opportunity to contest inclusion on any watchlist, and removal from all government watchlists.” Id.
The Ninth Circuit relied on Latif and summarized its ruling in Latif as follows:
The basis of our holding was straightforward. Because TSC administers the TSDB, a court needs jurisdiction over TSC to grant meaningful relief to a plaintiff seeking removal from the TSDB. Thus, since § 46110 does not grant circuit courts jurisdiction to review TSC orders, the statute cannot grant jurisdiction over claims seeking removal from the TSDB. Therefore, under Latif, we lack original jurisdiction over Arjmand’s claims. Arjmand, 745 F.3d at 1302 (internal citations omitted). The 17- OPINION AND ORDER

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Arjmand court rejected the government’s attempt to distinguish
Latif on the basis that, unlike the Latif Plaintiffs, Arjmand
pursued his constitutional claims through the DHS TRIP process. The court reasoned:
Even though Arjmand has pursued those claims through a petition challenging his DHS TRIP determination letter, the relief he seeks is confirmation of his watchlist status and, if present on the TSDB, removal from the list or a meaningful opportunity to contest his inclusion on the list. Latif holds that jurisdiction over claims seeking this relief does not exist under § 46110. Thus, the difference in procedural posture is not relevant, because our “lack of jurisdiction under § 46110 . . . arises from the unique relationship between TSA and TSC in processing traveler grievances,” not from the formal mechanism a traveler uses to pursue claims challenging the administration of the TSDB.
Id. (quoting Latif, 686 F.3d at 1129)(emphasis and ellipses in
original). Thus, the Ninth Circuit concluded “the fundamental problem remains that Arjmand cannot be granted relief without reviewing and modifying TSC orders, which cannot be done under
§ 46110.” Id. at 1303.
II. Analysis
Defendants contend the revised DHS TRIP procedures now place litigation of Plaintiffs’ substantive claims squarely within the types of claims that must be brought in the court of appeals
pursuant to § 46110. Defendants contend Ibrahim, Latif, and
Arjmand are distinguishable because under the new DHS TRIP
procedures the TSA Administrator is unquestionably the only authority responsible for issuing the final order maintaining a
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traveler on the No-Fly List. Defendants emphasize the TSA Administrator has both the discretion to adopt or to reject the recommendation of TSC and, if necessary, to consult with or to request additional information from TSC or other relevant agencies. Thus, because the TSA Administrator is the ultimate decision-maker as to whether a traveler remains on the No-Fly List, Defendants contend Plaintiffs’ substantive challenges to their continued presence on the No-Fly List must be addressed by the court of appeals.
Plaintiffs, on the other hand, contend jurisdiction remains in this Court because TSA does not have complete control over placement on the No-Fly List and the DHS TRIP process, and, therefore, Plaintiffs’ claims do not require review of a TSA order under § 46110. In particular, Plaintiffs point out that TSC and the nominating agencies determine who is placed on the No-Fly List in the first instance, and TSC retains a key role in determining the information that is conveyed to the traveler in the unclassified summary and in the final redress response; the information that is conveyed to the TSA Administrator; and, therefore, the information that forms the basis of the Administrator’s ultimate decision. Finally, Plaintiffs contend jurisdiction must rest in a court that is capable of receiving evidence because Plaintiffs’ substantive claims necessitate considering more than the administrative record.
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At the outset the Court notes this is an issue of first impression. Although the Ninth Circuit and other courts have considered whether claims arising from the No-Fly List and the original DHS TRIP procedures must be brought in the courts of appeals pursuant to § 46110, no court has considered where jurisdiction lies for a claim seeking review of an order denying removal from the No-Fly List following the completion of the revised DHS TRIP procedures and the issuance of a TSA order determining a traveler should be maintained on the No-Fly List for sufficient, disclosed reasons. Although the Court finds some force in each of the parties’ opposing arguments, the Court concludes in the unique procedural posture of this case that jurisdiction over Plaintiffs’ remaining substantive claims explicitly lies in the Ninth Circuit Court of Appeals pursuant to § 46110. In any event, if this Court retains the matter erroneously to adjudicate the remaining issues in this case, the parties will be delayed by several more months and will incur significant unnecessary expense. Thus, in light of the unique procedural posture of this case, the Court finds the most prudent course forward is to permit this jurisdictional question to be reviewed without delay by the Ninth Circuit Court of Appeals to ensure the last issues in this prolonged litigation are first resolved by the proper court.
The Court notes the “fundamental problem” identified in
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Arjmand and Latif no longer exists in this case as a result of the intervening revisions to the DHS TRIP procedures and, in particular, because the TSA Administrator now is clearly the authority to remove from or to maintain DHS TRIP applicants on the No-Fly List. In addition, when reviewing the issues under § 46110, the Ninth Circuit would now have the benefit of the evidentiary and procedural record developed in this Court and on which the TSA Administrator acted and can now “grant[] relief without reviewing and modifying TSC orders.” This is so because the TSA issued the final order maintaining Plaintiffs on the NoFly List pursuant to the revised procedures and the TSA has the unfettered authority to remove Plaintiffs from the No-Fly List in the event the Ninth Circuit determines Plaintiffs should be removed. See Arjmand, 745 F.3d at 1302.
A. TSC Responsibility for Initial Placement on the No-Fly List
Plaintiffs, nevertheless, contend their substantive claims still implicate TSC orders because TSC is the agency responsible for the initial placement of individuals on the No-Fly List and has the ongoing responsibility for reviewing and, if necessary, removing individuals from the List outside of the DHS TRIP process. Plaintiffs, however, are not acting outside of the DHS TRIP process, and, by seeking only prospective relief, Plaintiffs are merely attempting to redress their ongoing placement on the No-Fly List. After employing the revised DHS TRIP process, 21- OPINION AND ORDER

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therefore, the TSA Administrator’s order is the proximate reason why Plaintiffs remain on the No-Fly List and reversal of the TSA orders as to the remaining Plaintiffs would completely satisfy their requests for relief. A district court, however, does not have jurisdiction to do so under § 46110.
B. TSC’s Role in Disclosures to Plaintiffs and Compilation of Record for the TSA Administrator
Plaintiffs, as noted, also contend jurisdiction over their substantive claims remains in this Court because of TSC’s role in determining the information that is conveyed to the traveler and the information that is ultimately conveyed to the TSA Administrator. With respect to TSC’s role in determining the information that may be released to the traveler, this Court has already determined that Defendants properly identified the information that could be released and the information that must be withheld when the Court granted summary judgment to Defendants on Plaintiffs’ procedural claims. See Order (#337) issued Oct. 6, 2016. Plaintiffs’ argument regarding TSC’s control over the information that is released to the traveler, therefore, is an argument that goes to this Court’s jurisdiction over the already-adjudicated procedural claims rather than the Court’s
jurisdiction over the purely substantive claims that remain.4
4 The Court notes this consideration may effectively limit this Court’s rationale to the facts of this case. In the 22- OPINION AND ORDER

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Moreover, Plaintiffs are incorrect that TSC exercises exclusive control over selecting the information that is provided to the TSA Administrator. As noted, it is undisputed that the TSA Administrator may request additional information from TSC and/or the nominating agency, and the Administrator could reject TSC’s recommendation and order the traveler removed from the NoFly List if the Administrator is not satisfied with the information provided by TSC. Ultimately, therefore, the fact that TSC plays a role in determining the information that can be disclosed to the traveler and in providing a record and recommendation to the TSA Administrator does not change the fact that the TSA Administrator is the ultimate decision-maker with respect to whether Plaintiffs are to remain on the No-Fly List. Accordingly, as noted, the reviewing court can now “grant[] relief without reviewing and modifying TSC orders.” See Arjmand, 745 F.3d at 1302.
C. Necessity of a Court Capable of Receiving Evidence Finally, Plaintiffs contend their substantive claims require
ordinary course, judicial review of a DHS TRIP determination will involve both procedural and substantive aspects because the reviewing court must determine both whether the Defendants provided sufficient information to the traveler and whether the TSA Administrator’s substantive decision is supported by the record. Because only Plaintiffs’ substantive claims remain pending in this case, however, this Court cannot determine whether the hybrid nature of an ordinary judicial review of a DHS TRIP determination would lead to a different result. 23- OPINION AND ORDER

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a forum in a court that is capable of receiving evidence. Plaintiffs, in particular, assert their substantive claims are grounded in substantive due process, and, therefore, the Court will be required to consider information outside of the administrative record as to each individual Plaintiff. This
argument stems from the Ninth Circuit’s discussion in Ibrahim in
which the court observed: 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. For all we know, there is no administrative record of any sort for us to review. 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.
Ibrahim, 538 F.3d at 1256.
The landscape as to this issue in this case, however, has
changed significantly since Ibrahim. The revised DHS TRIP
procedures generated an administrative record for the court of appeals to review, and that record includes all information material to the traveler remaining on the No-Fly List as well as any information that the traveler chooses to submit after being provided notice of the reasons for his or her inclusion on the No-Fly List and an unclassified summary of the evidence supporting those reasons. Moreover, to the extent that Plaintiffs contend their constitutional claims (as opposed to
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their claims under the Administrative Procedure Act) challenging the merits of their ongoing placement on the No-Fly List would implicate information beyond the administrative record, the court of appeals would, nonetheless, have jurisdiction over such claims because they are “inextricably intertwined” with the TSA order. See Latif, 686 F.3d at 1128 (“The ‘inescapably intertwined’ doctrine ‘prevents plaintiffs from crafting constitutional tort claims either as a means of relitigat[ing] the merits of the previous administrative proceedings, or as a way of evading entirely established administrative procedures.’”)(quoting Americopters, 441 F.3d at 736).
In any event, as a practical matter a civil plaintiff’s constitutional claim is unlikely to be decided on a record materially different from the administrative record because a civil plaintiff could not likely obtain through discovery the type of sensitive, national-security information that Defendants are entitled to withhold during the administrative process under the revised DHS TRIP procedures. See Latif, 28 F. Supp. 3d at 1162 (holding although Defendants must provide Plaintiffs with notice of the reasons for their placement on the No-Fly List that is “reasonably calculated to permit each Plaintiff to submit evidence relevant to the reasons for their respective inclusions on the No–Fly List,” such disclosures by Defendants “may be limited or withheld altogether because any such disclosure would
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create an undue risk to national security.”). In light of the fact that Plaintiffs already have had an opportunity to submit responsive information during the revised DHS TRIP process that will be available to the reviewing court as part of the administrative record (see id.), the record on which a court would decide the substantive due-process claims would be materially similar to the administrative record.
Ultimately Plaintiffs seek an up-or-down determination of their substantive claims regarding whether Defendants have sufficient justification to maintain Plaintiffs on the No-Fly List. The Court concludes such a determination falls squarely within the scope of the final orders issued by the TSA Administrator at the conclusion of the revised DHS TRIP process. Because § 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,’” this Court concludes jurisdiction over Plaintiffs’ remaining substantive claims lies in the Ninth Circuit Court of Appeals. See Arjmand, 745 F.3d at 1302 (quoting Ibrahim, 538 F.3d at 1254).
Accordingly, on this record the Court GRANTS Defendants’ Motion (#348) to Dismiss for Lack of Jurisdiction.
PLAINTIFFS’ MOTION (#352) FOR LEAVE TO CONDUCT LIMITED JURISDICTIONAL DISCOVERY
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Plaintiffs move for leave to conduct jurisdictional discovery before resolution of Defendants’ Motion (#348) to Dismiss for Lack of Jurisdiction. In particular, Plaintiffs seek discovery of information regarding (1) TSC’s control over and access to information; (2) TSC decision-making and actions leading up to its recommendation to the TSA Administrator; and (3) conduct by TSC and TSA specific to Plaintiffs’ DHS TRIP inquiries. I. TSC’s Control Over and Access to Information
In the first category of proposed jurisdictional discovery, Plaintiffs seek details about the procedures under which TSC provides information to the TSA Administrator, including whether TSC is required to provide to the Administrator all information that TSC considered, including information inconsistent with the decision.
In this regard the parties stipulated as follows: The information the TSC provides to the TSA administrator may be a summary of the information TSC relied on to make its determination regarding whether the individual should remain on the No Fly List, and does not necessarily include all underlying documentation. The TSC’s recommendation to the TSA Administrator may contain classified and/or law enforcement sensitive information.
Joint Stipulations (#347) Regarding Jurisdiction at ¶ 18. To the extent that the record is unclear or insufficient, however, the TSA Administrator has the authority to request additional information from either TSC or a nominating agency. Id. at ¶ 19. 27- OPINION AND ORDER

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Moreover, to the extent that information is material (either inculpatory or exculpatory) to the Defendants’ No-Fly List determination, that information must be in the administrative record provided to the reviewing court because Defendants are required either (a) to provide that information to each Plaintiff “in order to permit such Plaintiff to respond meaningfully to the reasons he has been placed on the No-Fly List” or (b) to explain to the reviewing court why that information could not be disclosed to the Plaintiff. See Latif, 2016 WL 1239925, at *15*16.
Ultimately, however, the Court concludes Plaintiffs’ requested discovery is not relevant to Defendants’ Motion for a more fundamental reason: The TSA Administrator now has the authority to seek additional information and, in any event, makes the final decision regarding whether the traveler remains on the No-Fly List. The mere fact that TSC plays a role in providing information and a recommendation to the TSA Administrator does not mean the court of appeals could not “grant[] relief” on Plaintiffs’ purely substantive claims “without reviewing and modifying TSC orders.” See Arjmand, 745 F.3d at 1302.
Accordingly, the Court concludes discovery as to TSC’s control over and access to information is not necessary to resolve the jurisdictional question at issue in Defendants’ Motion.
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II. TSC Decision-Making and Actions Before Issuing its Recommendation to the TSA Administrator In their second category of requested jurisdictional
discovery, Plaintiffs seek information regarding (1) TSC’s authority to remove individuals unilaterally from the No-Fly List before issuing a recommendation to the TSA Administrator and (2) TSC’s role in determining or providing the relevant criteria relevant to the Plaintiffs’ placement on the No-Fly List.
The Court finds Plaintiffs’ arguments regarding TSC’s authority to remove individuals unilaterally from the No-Fly List are speculative and unpersuasive. Moreover, this case is not about individuals who have been removed from the No-Fly List, but instead is about the remaining Plaintiffs who have been maintained on the No-Fly List. In other words, if TSC unilaterally removed an individual from the No-Fly List, there would not be any basis for judicial review in circumstances such as those raised here, and, therefore, the ability of the court of appeals to provide relief under § 46110 would not be implicated. Thus, TSC’s authority does not affect a reviewing court’s ability to grant relief to a traveler who remains on the No-Fly List without the court reviewing and modifying TSC orders.
Finally, the Court concludes how TSC determines the applicable criteria is not relevant to the reviewing court’s substantive consideration of whether the TSA Administrator properly concluded those criteria were satisfied by the record. 29- OPINION AND ORDER

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Again, the ability of the court of appeals to “grant[] relief” on Plaintiffs’ purely substantive claims “without reviewing and modifying TSC orders” is unaffected by the details of how TSC determines the criteria that are applicable. See Arjmand, 745 F.3d at 1302. III. Plaintiff-Specific Information
Finally, Plaintiffs seek information regarding the handling of each of Plaintiffs’ DHS TRIP inquiries by TSC and TSA. In particular, Plaintiffs seek information as to whether TSC provided the TSA Administrator with all of the information on which it relied in making its recommendation; whether the TSA Administrator requested additional information; and, if so, whether TSC provided that information.
Again, the Court concludes this information is not relevant to the fundamental issue of whether a reviewing court can “grant[] relief without reviewing and modifying TSC orders.” See id. With respect to Plaintiffs’ substantive claims, the sole responsibility of the reviewing court would be to determine whether the TSA Administrator’s determination is sufficiently supported by the already-developed record.
On this record, therefore, the Court concludes the jurisdictional discovery that Plaintiffs seek is not relevant to the jurisdictional question presented by Defendants’ Motion (#348) to Dismiss for Lack of Jurisdiction, and, therefore, the
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Court DENIES Plaintiffs’ Motion (#352) for Leave to Conduct Limited Jurisdictional Discovery.
CONCLUSION For these reasons, the Court GRANTS Defendants’ Motion (#348) to Dismiss for Lack of Jurisdiction, which the Court construes as a Motion for Summary Judgment, and DENIES Plaintiffs’ Motion (#352) for Leave to Conduct Limited Jurisdictional Discovery. The Court directs the parties to confer and to submit to the Court no later than May 12, 2017, a proposed form of judgment that summarizes the Court’s disposition of all issues litigated to date and that separately identifies those as to which the Court concludes it lacks jurisdiction to proceed. After the Court enters its concluding judgment, the Court will then consider any petition(s) for attorneys’ fees. IT IS SO ORDERED. DATED this 21st day of April, 2017.
/s/ Anna J. Brown ANNA J. BROWN United States District Judge
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 Case 3:10-cv-00750-BR Document 347 Filed 12/20/16 Page 1 of 11

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

AYMAN LATIF, et al.,
Plaintiffs, v.
LORETTA E. LYNCH, et al.,

Case 3:10-cv-00750-BR
JOINT STIPULATIONS REGARDING JURISDICTION

Defendants.

For purposes of the Court’s consideration of its jurisdiction to consider Plaintiffs’ substantive claims, the parties hereby stipulate to the following:

Process in general:

1. The Terrorist Screening Center (TSC) maintains the government’s consolidated and integrated terrorist watchlist, known as the Terrorist Screening Database (TSDB), of which the No Fly List is a subset.
2. TSA implements the No Fly List by directing aircraft operators to deny individuals on the List boarding o n aircraft flying to, from, or over the United States.
3. The Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP) provides a single point of contact for complaints and inquiries regarding travel difficulties, including situations in which:
a. travelers believe their travel difficulties may be the result of a watchlist misidentification;
b. travelers have been denied entry at a port of entry;
1 – JOINT STIPULATIONS REGARDING JURISDICTION Latif v. Lynch, Civil Case No. CV 10-00750-BR

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c. travelers believe they have been unfairly or incorrectly delayed, denied airline boarding, or identified for additional screening or inspection at transportation hubs as a result of being incorrectly placed on a watchlist.
4. A traveler who experiences difficulties may submit a Traveler Inquiry Form to DHS TRIP. Upon receipt of a Traveler Inquiry Form, DHS TRIP reviews the information submitted by the traveler and evaluates each inquiry to determine with which DHS components or other governmental agencies it must coordinate to address the issues underlying the claimed travel difficulties.
5. In the cases in which DHS TRIP determines that a traveler is an exact or possible match to an identity in the TSDB, DHS TRIP refers the matter to the TSC.
6. When a traveler’s redress inquiry is referred to the TSC, the TSC reviews the traveler’s record in consultation with the agency or agencies that control the relevant information. Upon the conclusion of that review, the TSC notifies DHS TRIP of the outcome of the review.
7. Once all relevant agencies have reviewed a traveler’s redress inquiry and record and reached a determination regarding the traveler’s appropriate status with respect to the TSDB and any other travel issue that was identified by the traveler , DHS TRIP issues a determination letter to the traveler. Throughout this administrative process, DHS TRIP maintains a record of the steps it has taken in each individual’s case.
8. The DHS TRIP process can result in removal of a traveler from the No Fly List.
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9. Pursuant to prior government policy, DHS TRIP determination letters did not disclose whether or not the traveler who sought redress was included on the No Fly List.
10. The government has revised the DHS TRIP procedures for citizens and lawful permanent residents of the United States (together, U.S. persons) who make redress inquiries following the denial of commercial aircraft boarding as a result of being placed on the No Fly List.
11. The government’s public descriptions of the current DHS TRIP redress process are found in declarations filed in lawsuits, including Latif v. Lynch. The current DHS TRIP redress process described in those declarations has not been subject to a rule-making process and is not published in the Federal Register or the Code of Federal Regulations.
12. The procedures governing decision-making and information-sharing responsibilities and authorities between the TSC and TSA in the current DHS TRIP redress process are memorialized in public court filings and inter-agency memoranda that are not public. To the extent that ex parte court filings address the procedures governing decision-making and information-sharing responsibilities and authorities between the TSC and TSA, the information in those filings is not publicly available.
13. The new redress procedures now provide that a United States person who (a) purchases an airline ticket for a flight to, from, or over the United States; (b) is denied boarding onto that flight due to being on the No Fly List; (c) subsequently files a redress inquiry regarding the denial of boarding with DHS TRIP; (d) provides all information and documentation required by DHS TRIP; and (e) is determined to be appropriately on the No Fly List at the conclusion of the TSC’s review of the redress inquiry, will receive a letter stating that “you are on the
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No Fly List” and providing the option to request additional information and specific instructions for doing so.
14. If, at the conclusion of the TSC’s review, the TSC determines that the individual is not currently on the No Fly List, it notifies DHS TRIP that the requester is not on the No Fly List. DHS TRIP will then advise the individual that the U.S. government knows of no reason that the individual should be unable to fly.
15. If an individual who receives a letter stating that he or she is on the No Fly List timely requests additional information, DHS TRIP will respond with a second letter that identifies the specific criterion or criteria under which the individual was placed on the No Fly List and any unclassified summary of reasons.
16. The second DHS TRIP letter states that the individual may seek additional review of his or her placement on the No Fly List and may submit any information he or she believes may be relevant to determining whether continued placement on the List is appropriate.
[The parties were not able to agree on stipulations concerning the TSC’s role and responsibilities, including its role in determining or providing the criteria for an individual’s placement on the No Fly List. The parties also were not able to agree on stipulations concerning the nature and extent of any consultations between DHS TRIP and other agencies at this stage of the redress process, and specifically regarding interagency consultation to determine what information an individual who receives a letter stating that he or she is on the No Fly List should receive.]
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17. If an individual timely responds to the second letter and requests additional review, DHS TRIP forwards the response and any enclosed information to the TSC for consideration. Upon completion of the TSC’s review of the materials submitted to DHS TRIP, the TSC provides a written recommendation to the TSA Administrator as to whether the individual should be removed from or remain on the No Fly List, and the reasons for that recommendation.
18. The information the TSC provides to the TSA administrator may be a summary of the information TSC relied on to make its determination regarding whether the individual should remain on the No Fly List, and does not necessarily include all underlying documentation. The TSC’s recommendation to the TSA Administrator may contain classified and/or law enforcement sensitive information.
[The parties were not able to agree on stipulations concerning the extent to which the TSC determines what information is included in the recommendation to the TSA Administrator, the TSC’s consultations with other agencies in determining what information to include in the recommendation to the TSA Administrator, and whether the TSA Administrator receives—or can access upon request—all information that the TSC considered in making its recommendation.]
19. The TSA Administrator may request additional information or consult with the TSC and/or other relevant agencies, including any nominating agency, regarding any concerns that may arise from the recommendation or the record before the Administrator.
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20. After DHS TRIP receives the recommendation from TSC, it provides the recommendation to the TSA Administrator, along with the requester’s complete DHS TRIP file (including all information submitted by the requester).
21. If the TSA Administrator issues a final order maintaining an individual on the No Fly List, the order will state the basis for the decision to the extent possible without compromising national security or law enforcement interests.
[The parties were not able to agree on stipulations concerning the process by which the TSC and/or any other agencies determine what information can be disclosed in TSA’s final order.]
22. The TSA Administrator may determine, after review of the record before the Administrator and any appropriate interagency consultation, that the individual should not be on the No Fly List, notwithstanding the TSC’s recommendation that the individual remain on the No Fly List. In such a case, the Administrator may issue an order determining that the individual should not be on the No Fly List.
23. Upon issuance of an order by the TSA Administrator, DHS TRIP will provide the TSC and the individual with a copy of the final order.
Procedures applied to the Plaintiffs in this litigation:
[The parties were not able to agree on stipulations concerning the nature and extent of the TSC’s role in determining that certain Plaintiffs were or were not on the No Fly List, the nature and extent of any interagency consultation regarding that determination, or the determination as to what information would be provided to individual Plaintiffs on the No Fly List.]
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24. DHS TRIP sent each of the six Plaintiffs a single letter informing him of his status on the No Fly List, identifying the specific criterion or criteria under which he was placed on the List, and providing an unclassified summary of reasons for his continued placement on the No Fly List. The letters also informed each of these six Plaintiffs of the opportunity to respond and seek additional review.
25. All six of the Plaintiffs who were informed that they were on the No Fly List responded seeking additional review. Upon DHS TRIP’s receipt of those responses, DHS TRIP forwarded the responses to the TSC. The TSC and DHS TRIP then followed the revised DHS TRIP procedures described above. Pursuant to this process, TSC provided the TSA Administrator with a written recommendation that each remaining Plaintiff should remain on the No Fly List.
26. The TSA Administrator concurred with the TSC’s recommendation as to each of the six remaining Plaintiffs and issued orders to five of the Plaintiffs on January 21, 2015, and to the remaining Plaintiff on January 28, 2015.

Dated: December 20, 2016

Respectfully submitted,
Steven M. Wilker, OSB No. 911882 Email: steven.wilker@tonkon.com Tonkon Torp LLP 1600 Pioneer Tower 888 SW 5th Avenue Portland, OR 97204 Tel.: (503) 802-2040; Fax: (503) 972-3740

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Case 3:10-cv-00750-BR Document 347 Filed 12/20/16 Page 8 of 11
Cooperating Attorney for the ACLU Foundation of Oregon
s/ Hina Shamsi (with permission) Hina Shamsi (Admitted pro hac vice) Email: hshamsi@aclu.org Hugh Handeyside (Admitted pro hac vice) Email: hhandeyside@aclu.org American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel.: (212) 549-2500; Fax: (212) 549-2654
Ahilan T. Arulanantham (Admitted pro hac vice) Email: aarulanantham@aclu-sc.org Catherine A. Wagner (Admitted pro hac vice) Email: cwagner@aclu-sc.org ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 Tel.: (213) 977-9500; Fax: (213) 977-5297
Alan L. Schlosser (Admitted pro hac vice) Email: aschlosser@aclunc.org Julia Harumi Mass (Admitted pro hac vice) Email: jmass@aclunc.org ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111 Tel.: (415) 621-2493; Fax: (415) 255-8437
Mitchell P. Hurley (Admitted pro hac vice) Email: mhurley@akingump.com Justin H. Bell (Admitted pro hac vice) Email: bellj@akingump.com Akin Gump Strauss Hauer & Feld LLP One Bryant Park New York, NY 10036 Tel.: (212) 872-1011; Fax: (212) 872-1002
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Case 3:10-cv-00750-BR Document 347 Filed 12/20/16 Page 9 of 11
Attorneys for Plaintiffs Mohamed Sheikh Abdirahman Kariye, Faisal Kashem, Raymond Earl Knaeble, and Amir Mohamed Meshal
s/ William Genego (with permission) William Genego (Admitted pro hac vice) E-mail: bill@genegolaw.com Law Office of William Genego 2115 Main Street Santa Monica, California 90405 Tel: (310) 399-3259
Joel Leonard, OSB No. 960810 Email: joel@eoplaw.com Elliott, Ostrander & Preston, PC 707 SW Washington Street, Suite 1500 Portland, OR 97205
Tel: (503) 224-7112; Fax: 503-224-7819
Attorneys for Plaintiff Stephen Persaud
BENJAMIN C. MIZER Principal Deputy Assistant Attorney General Civil Division
ANTHONY J. COPPOLINO Deputy Branch Director Federal Programs Branch
s/ Brigham J. Bowen AMY POWELL BRIGHAM J. BOWEN SAMUEL M. SINGER amy.powell@usdoj.gov brigham.bowen@usdoj.gov samuel.m.singer@usdoj.gov U.S. Department of Justice Civil Division, Federal Programs Branch
9 – JOINT STIPULATIONS REGARDING JURISDICTION Latif v. Lynch, Civil Case No. CV 10-00750-BR

Case 3:10-cv-00750-BR Document 347 Filed 12/20/16 Page 10 of 11 20 Massachusetts Avenue, N.W Washington, D.C. 20001 Phone: (202) 514-9836 (202) 514-6289 Fax: (202) 616-8470 Attorneys for Defendants
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Case 3:10-cv-00750-BR Document 347 Filed 12/20/16 Page 11 of 11 CERTIFICATE OF SERVICE
I certify that a copy of the foregoing joint stipulations was delivered to all counsel of record via the Court’s ECF notification system.
s/ Brigham J. Bowen Brigham J. Bowen
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 Case 3:10-cv-00750-BR Document 375 Filed 10/21/19 Page 1 of 60

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FAISAL NABIN KASHEM; RAYMOND EARL KNAEBLE IV; AMIR MESHAL; STEPHEN DURGA PERSAUD,
Plaintiffs-Appellants,
v.
WILLIAM P. BARR, Attorney General; CHRISTOPHER A. WRAY; CHARLES H. KABLE IV, Director,
Defendants-Appellees.

No. 17-35634
D.C. No. 3:10-cv-00750-
BR
OPINION

Appeal from the United States District Court for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted October 9, 2018 Portland, Oregon
Filed October 21, 2019
Before: Raymond C. Fisher and Consuelo M. Callahan, Circuit Judges, and Cathy Ann Bencivengo, District Judge.*
Opinion by Judge Fisher

* The Honorable Cathy Ann Bencivengo, United States District Judge for the Southern District of California, sitting by designation.

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SUMMARY**

No Fly List
The panel affirmed the district court’s summary judgment in favor of the United States government in an action alleging that plaintiffs’ inclusion on the No Fly List, prohibiting them from boarding commercial aircraft flying to, from or within the United States or through United States airspace, violates their procedural and substantive due process rights.
The panel held that the district court properly rejected plaintiffs’ as-applied vagueness challenges. The panel determined that the No Fly List criteria are not impermissibly vague merely because they require a prediction of future criminal conduct, or because they do not delineate what factors are relevant to that determination. The panel held that the criteria are “reasonably clear,” in their application to the specific conduct alleged in this case, which includes, for one or more plaintiffs, associating with and financing terrorists, training with militant groups overseas and advocating terrorist violence. Furthermore, the criteria are not so standardless that they invite arbitrary enforcement, at least as applied to plaintiffs. Because the panel concluded the No Fly List criteria were not vague as applied, it declined to reach plaintiffs’ facial vagueness challenges.

** 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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The panel agreed with the district court’s disposition of plaintiffs’ procedural due process claims. Applying Mathews v. Eldridge, 424 U.S. 319, 335 (1976), the panel weighed plaintiffs’ private interests, the government’s interests, the risk of erroneous deprivation through the procedures provided, and the value of the additional safeguards proposed by the plaintiffs, and concluded that the procedures provided to plaintiffs were constitutionally sufficient, or that any error was nonprejudicial. The panel determined that given the national security concerns at issue, and with the exceptions noted, the government had taken reasonable measures to ensure basic fairness to the plaintiffs and followed procedures reasonably designed to protect against erroneous deprivation of plaintiffs’ liberty. Because there was no prejudicial denial of basic fairness, the panel did not decide whether, in a different case, less severe travel restrictions might be required as an alternative to a complete ban on air travel. Nor did the panel address whether the procedures employed here would be adequate in a different case.

The panel held that the district court properly dismissed plaintiffs’ substantive due process claims for lack of jurisdiction under 49 U.S.C. § 46110(a), which places review of Transportation Security Administration orders in the courts of appeals rather than the district court. The panel noted that although this Court previously held that substantive challenges to No Fly List determinations could be pursued in district court, the 2015 revisions to the traveler redress procedures altered that analysis. Under the new procedures, the Transportation Security Administrator bears sole responsibility for issuing a final order maintaining or removing a traveler from the No Fly List and sole authority to remove a traveler from the list. In light of this change, the

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statute grants the courts of appeals exclusive jurisdiction over substantive challenges to No Fly List determinations.

COUNSEL
Hina Shamsi (argued) and Hugh Handeyside, American Civil Liberties Union Foundation, New York, New York; Ahilan T. Arulanantham, American Civil Liberties Union Foundation of Southern California, Los Angeles, California; Steven M. Wilker, Tonkon Torp LLP, Portland, Oregon; Richard M. Steingard, Law Offices of Richard M. Steingard, Los Angeles, California; Joel Leonard, Elliott Ostrander & Preston PC, Portland, Oregon; for Plaintiffs-Appellants.
Joshua Waldman (argued) and Sharon Swingle, Appellate Staff; Billy J. Williams, United States Attorney; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

OPINION
FISHER, Circuit Judge:
The plaintiffs are on the No Fly List, which prohibits them from boarding commercial aircraft flying to, from or within the United States or through United States airspace. They challenge, under the Due Process Clause of the Fifth Amendment to the United States Constitution, both their inclusion on the No Fly List and the sufficiency of the procedures available for contesting their inclusion on the list. Specifically, the plaintiffs argue (1) the criteria for inclusion on the No Fly List are unconstitutionally vague; (2) the

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procedures for challenging inclusion on the list fail to satisfy procedural due process; and (3) their inclusion on the list violates their substantive due process rights. The district court granted summary judgment to the government on the vagueness and procedural due process claims and dismissed the substantive due process claims for lack of jurisdiction under 49 U.S.C. § 46110. We affirm.
The district court properly rejected the plaintiffs’ asapplied vagueness challenges. A law is unconstitutionally vague when it “fails to give ordinary people fair notice of the conduct it punishes.” Johnson v. United States, 135 S. Ct. 2551, 2556 (2015). Here, the No Fly List criteria are not impermissibly vague merely because they require a prediction of future criminal conduct, see id. at 2561; Schall v. Martin, 467 U.S. 253, 278–79 (1984); Jurek v. Texas, 428 U.S. 262, 272–76 (1976) (plurality opinion), or because they do not delineate what factors are relevant to that determination, see Schall, 467 U.S. at 279. The criteria are “reasonably clear,” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 505 (1982), in their application to the specific conduct alleged in this case, which includes, for one or more plaintiffs, associating with and financing terrorists, training with militant groups overseas and advocating terrorist violence.1 Furthermore, the criteria are not “so standardless that [they] invite[] arbitrary enforcement,” Johnson, 135 S. Ct. at 2556, at least as applied to these plaintiffs. Because we conclude the No Fly List

1 We emphasize that these are allegations. The plaintiffs have not been charged or convicted of a crime; the government’s allegations have not been proven in a court of law; and the plaintiffs vigorously dispute the government’s conclusion that they pose a threat of committing terrorism. Additionally, although this opinion summarizes the government’s allegations against the plaintiffs, it does not summarize the plaintiffs’ responses and explanations.

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criteria are not vague as applied, we decline to reach the plaintiffs’ facial vagueness challenges. See Hoffman Estates, 455 U.S. at 495.
We also agree with the district court’s disposition of the plaintiffs’ procedural due process claims. Applying Mathews v. Eldridge, 424 U.S. 319, 335 (1976), we balance three considerations: (1) the plaintiffs’ liberty interests; (2) the risk of an erroneous liberty deprivation through the current traveler redress procedures, and the probable value of additional or substitute procedural safeguards; and (3) the government’s interest in national security, including the administrative burdens that additional procedural requirements would entail. Even when national security interests are at stake, moreover, the government must “take reasonable measures to ensure basic fairness to the private party and . . . follow procedures reasonably designed to protect against erroneous deprivation of the private party’s interests.” Al Haramain Islamic Found., Inc. v. U.S. Dep’t of Treasury (Al Haramain II), 686 F.3d 965, 980 (9th Cir. 2012). Weighing the Mathews factors, we conclude the procedures provided to the plaintiffs were constitutionally sufficient in the case before us, or that any error was nonprejudicial.
Finally, the district court properly dismissed the plaintiffs’ substantive due process claims for lack of jurisdiction under 49 U.S.C. § 46110(a), which places review of Transportation Security Administration (TSA) orders in the courts of appeals rather than the district court. Although we previously held that substantive challenges to No Fly List determinations could be pursued in district court, the 2015 revisions to the traveler redress procedures alter our analysis. Under the new procedures, the TSA Administrator bears sole responsibility for issuing a final order maintaining

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or removing a traveler from the No Fly List and sole authority to remove a traveler from the list. In light of this change, the statute grants the courts of appeals exclusive jurisdiction over substantive challenges to No Fly List determinations.
I. BACKGROUND
A. Factual Background
1. The No Fly List
The No Fly List is a register of individuals who are barred from boarding commercial aircraft flying to, from, within or over the United States. It contains a subset of the individuals appearing on the government’s more extensive terrorist watchlist, formally known as the Terrorist Screening Database (TSDB).
The TSDB is maintained by the Terrorist Screening Center (TSC), which is administered by the Federal Bureau of Investigation (FBI). An individual is placed on the TSDB when there is “reasonable suspicion” that he or she is a known or suspected terrorist – i.e., when there is “articulable intelligence or information which, taken together with rational inferences from those facts, reasonably warrant[s] 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.”
The No Fly List is a subset of the TSDB. Federal departments and agencies submit nominations for inclusion on the No Fly List, and TSC decides which individuals to include. TSC then provides the list to the Transportation

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Security Administration (TSA), which implements the list at airports.
An individual is placed on the No Fly List when the TSC has “reasonable suspicion” to believe that he or she represents one of the following:
a. A threat of committing an act of international terrorism (as defined in 18 U.S.C. § 2331(1)) or an act of domestic terrorism (as defined in 18 U.S.C. § 2331(5)) with respect to an aircraft (including a threat of air piracy, or threat to an airline, passenger, or civil aviation security); or
b. A threat of committing an act of domestic terrorism (as defined in 18 U.S.C. § 2331(5)) with respect to the homeland; or
c. A threat of committing an act of international terrorism (as defined in 18 U.S.C. § 2331(1)) against any U.S. Government facility abroad and associated or supporting personnel, including U.S. embassies, consulates and missions, military installations (as defined by 10 U.S.C. § 2801(c)(4)), U.S ships, U.S. aircraft, or other auxiliary craft owned or leased by the U.S. Government; or
d. A threat of engaging in or conducting a violent act of terrorism and who is operationally capable of doing so.
Each nominating agency is responsible for ensuring that its No Fly List nominations satisfy one of these four criteria. Additionally, nominating agencies are required by internal policies known as the Watchlisting Guidance to conduct

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periodic reviews of nominations of U.S. citizens and lawful permanent residents to the TSDB and to have internal procedures that reduce and correct errors in the nomination process.
2. The No Fly List Redress Procedures
Before 2015, an individual who was denied boarding at an airport could challenge his or her apparent inclusion on the No Fly List by submitting a complaint to the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP). DHS TRIP would forward the complaint to TSC, which would determine whether the complainant was on the No Fly List and, if so, whether the complainant’s continued inclusion on the list was justified. After TSC made this determination, DHS TRIP would advise the complainant by letter that the review was complete. These letters neither confirmed nor denied the complainant’s status on the No Fly List. Nor did they disclose the basis or bases for the complainant’s possible inclusion on the list or provide assurances about the complainant’s ability to undertake future travel.
In 2015, as a result of this litigation, the government revised these redress procedures. Under the revised procedures challenged here, an individual who has been denied boarding at an airport may apply for redress through DHS TRIP. If the complainant is on the No Fly List, DHS TRIP advises the complainant by letter that he or she is on the list and provides instructions for requesting further information. If the complainant requests further information, DHS TRIP provides a second, more detailed letter identifying the specific criterion under which the complainant has been included on the list. The second letter may also provide an unclassified summary of information supporting the complainant’s inclusion on the list, although

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whether such a summary is provided – and the amount and type of information included – depends on the national security and law enforcement interests at stake. The second letter also notifies the complainant of the option to seek further review of his or her inclusion on the No Fly List and invites the complainant to submit any information he or she believes is relevant to that determination.
If the complainant requests further review, DHS TRIP forwards that request to TSC, along with any supporting information submitted by the complainant. After reviewing the materials, TSC provides DHS TRIP with a recommendation as to whether the complainant should be removed from the No Fly List. This recommendation, along with the complainant’s complete DHS TRIP file, is provided to the TSA Administrator, who is the final decisionmaker. After reviewing these materials, the TSA Administrator may either remand the case to TSC with a request for additional information or issue a final order, a copy of which is provided to the complainant. If the final order maintains the complainant on the list, it will state the basis for that decision to the extent permitted by national security and law enforcement interests. The final order also informs the complainant of the right to seek judicial review.
B. Procedural History
In 2010, 10 individuals filed this action after they were prevented from boarding commercial flights to or within the United States. The district court dismissed the entire action for lack of subject matter jurisdiction, holding that the plaintiffs’ claims challenged TSA orders and thus fell within the exclusive jurisdiction of the federal appellate courts under 49 U.S.C. § 46110(a). See Latif v. Holder (Latif I),

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No. 3:10-cv-00750-BR, 2011 WL 1667471, at *6 (D. Or. May 3, 2011).2 In relevant part, § 46110(a) states:
[A] person disclosing a substantial interest in an order issued by . . . the Administrator of the Transportation Security Administration with respect to security duties and powers designated to be carried out by the Administrator of the 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.

49 U.S.C. § 46110(a).
We vacated and remanded, reasoning that under the pre2015 redress procedures, it was TSC – not TSA – that compiled the No Fly List, decided whether to remove an individual from the list and bore sole authority to grant relief. See Latif v. Holder (Latif II), 686 F.3d 1122, 1127–29 (9th Cir. 2012). Because § 46110(a) does not apply to TSC, we held the statute did not strip the district court of jurisdiction over the plaintiffs’ claims. See id. at 1129–30.
On remand, the district court held the pre-2015 procedures for seeking removal from the No Fly List

2 Originally, the lead parties in this case were plaintiff Ayman Latif and defendant Attorney General Eric Holder. At present, the lead parties are plaintiff Faisal Nabin Kashem and defendant Attorney General William Barr. Accordingly, citations to the Latif line of cases are references to previous decisions in this litigation.

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violated both procedural due process and the Administrative Procedure Act. See Latif v. Holder (Latif III), 28 F. Supp. 3d 1134, 1161–63 (D. Or. 2014). In response to that ruling, the government adopted the revised redress procedures at issue here, and it informed several plaintiffs that they were not on the No Fly List. The court dismissed those plaintiffs’ claims, as well as the claims of a deceased plaintiff.
As to the remaining four plaintiffs, all of whom are United States citizens, the government reevaluated their statuses under the revised DHS TRIP procedures.3 At the conclusion of this review, each received a notification letter informing him of his continued inclusion on the No Fly List, identifying the criterion on which the government relied, providing a statement – sometimes incomplete – of the reasons for his inclusion on the list, and providing an unclassified summary of the evidence upon which the government relied in making its determination.4 The unclassified summaries are paraphrased below. We again emphasize that these summaries are based on the government’s allegations as to the plaintiffs’ conduct. Whether the allegations are true has not been decided in this litigation, and, given their sensitive nature, nothing we say in this opinion should suggest otherwise.
One plaintiff was included on the No Fly List based in part on statements he allegedly made about his support of

3 The district court also addressed the claims of a fifth plaintiff. In June 2019, however, we granted the fifth plaintiff’s motion to be dismissed from this appeal under Federal Rule of Appellate Procedure 42(b). Accordingly, we do not address this plaintiff’s claims.
4 The government did not redact any of the DHS TRIP letters it sent the plaintiffs. At the plaintiffs’ request, however, the district court sealed those materials and redacted certain portions from the public record.

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violent terrorism and his willingness to fight in Iraq against the United States. According to the government, this plaintiff was interviewed in July 2010 by FBI agents, with counsel present. During that interview, the plaintiff allegedly acknowledged purchasing and distributing lectures by Anwar Al-Aulaqi, emailing Al-Aulaqi on one occasion and authoring posts on Al-Aulaqi’s website advocating the bombing of Jewish settlements. Al-Aulaqi, an American Muslim cleric and specially designated global terrorist, was killed in a U.S. drone strike in 2011.
A second plaintiff was included on the No Fly List based on statements he allegedly made to FBI agents after his arrest by the Kenyan military in 2007. According to the government, this plaintiff admitted engaging in militant activities in Somalia. The government alleged the plaintiff admitted receiving weapons training at a camp in Somalia; fighting in Somalia with a group of armed militants that probably included members of al-Qaeda; and being hosted in Somalia by individuals associated with the Council of Islamic Courts, the military wing of which – al-Shabaab – is a designated foreign terrorist organization (FTO).
A third plaintiff was included on the No Fly List based in part on his alleged travel to Somalia to train for and engage in jihad. According to the government, this plaintiff was interviewed by the FBI on 12 occasions. The plaintiff allegedly acknowledged traveling to Somalia and joining and receiving weapons training from the Islamic Courts Union, which is associated with al-Shabaab.
In contrast to the relatively detailed letters provided to the other plaintiffs, a fourth plaintiff’s notification letter provided only the following unclassified statement of reasons for his inclusion on the No Fly List: “The Government has concerns about the nature and purpose of

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[plaintiff’s] travel to Yemen in 2010.” The government expanded on the reasons for this plaintiff’s inclusion on the No Fly List in classified information filed ex parte and in camera in district court.
The letters stated the government could not provide additional disclosures because of national security concerns, privileges or other legal limitations, and they notified the plaintiffs of their opportunity both to respond to the government’s allegations and to submit relevant evidence or information on their behalf.
Each plaintiff responded to his notification letter, contesting the reasons for his inclusion on the No Fly List and requesting further information and procedures. None of the plaintiffs submitted evidence in support of his response, however.
DHS TRIP forwarded the plaintiffs’ responses to TSC for review. After completing its reviews, TSC provided DHS TRIP with recommendations for the TSA Administrator as to whether each plaintiff should remain on the No Fly List. DHS TRIP forwarded these recommendations to the Acting TSA Administrator, who issued final orders maintaining each plaintiff on the list.
The plaintiffs then returned to the district court, challenging the vagueness of the No Fly List criteria, the adequacy of the revised DHS TRIP procedures and their inclusion on the list. The court held the criteria were not unconstitutionally vague. See Latif v. Lynch (Latif IV), No. 3:10-cv-00750-BR, 2016 WL 1239925, at *11–12 (D. Or. Mar. 28, 2016). As to the procedural and substantive due process claims, the court initially concluded the record was not adequate to resolve those claims because the government had not identified the information it had withheld from the

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plaintiffs’ notification letters or the reasons for withholding that information. See id. at *2, 14–20. The court directed the government to supplement the record with a summary of the material information it had withheld from the notification letters, together with a justification for that withholding. See id. at *20. The government did so, submitting classified materials in an ex parte filing. After reviewing those materials in camera, the district court granted summary judgment to the government on the plaintiffs’ procedural due process claims. See Order at 5–6, Latif v. Lynch (Latif V), No. 3:10-cv-00750-BR (D. Or. Oct. 6, 2016). The court thereafter dismissed the plaintiffs’ substantive due process claims for lack of subject matter jurisdiction, holding the claims challenged TSA orders and thus fell within the exclusive jurisdiction of the courts of appeals under § 46110. See Latif v. Sessions (Latif VI), No. 3:10-cv-00750-BR, 2017 WL 1434648, at *9 (D. Or. Apr. 21, 2017).
The plaintiffs appeal the grant of summary judgment on their vagueness and procedural due process claims and the dismissal of their substantive due process claims for lack of subject matter jurisdiction.
II. STANDARD OF REVIEW
We have appellate jurisdiction under 28 U.S.C. § 1291. “We review de novo a district court’s grant or denial of summary judgment,” Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 777 (9th Cir. 2014) (en banc), and a district court’s dismissal for lack of subject matter jurisdiction, see Young v. United States, 769 F.3d 1047, 1052 (9th Cir. 2014).

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III. ANALYSIS
A. Vagueness
We first examine whether the criteria for inclusion on the No Fly List are unconstitutionally vague under the Due Process Clause of the Fifth Amendment.5 “The void-forvagueness doctrine . . . guarantees that ordinary people have ‘fair notice’ of the conduct a statute proscribes.” Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018) (quoting Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972)); see United States v. Williams, 553 U.S. 285, 304 (2008); Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Additionally, “the doctrine guards against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries, and judges.” Dimaya, 138 S. Ct. at 1212; see Williams, 553 U.S. at 304; Kolender v. Lawson, 461 U.S. 352, 357–58 (1983); Grayned, 408 U.S. at 108–09. Here, the plaintiffs invoke each of these theories – fair notice and arbitrary enforcement – and they raise both as-applied and facial challenges.

5 As the district court observed, it is unclear whether the plaintiffs raised a distinct claim that the No Fly List criteria are void for vagueness, or whether they instead contended the vagueness of the criteria amounted to inadequate notice for the purpose of procedural due process. See Latif IV, 2016 WL 1239925, at *11. The third amended complaint states procedural due process, substantive due process and Administrative Procedure Act claims, but makes no mention of vagueness. Because the district court reached the vagueness issue in granting summary judgment to the government, and because both parties treat vagueness as an independent challenge under the Due Process Clause, we approach it as a distinct claim.

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1. The Strictness of Our Review
Before reaching those questions, we consider the parties’ contentions regarding the strictness of our review. The degree of vagueness the Due Process Clause will tolerate “depends in part on the nature of the enactment.” Hoffman Estates, 455 U.S. at 498. Relevant factors include whether the challenged provision involves only economic regulation, imposes civil rather than criminal penalties, contains a scienter requirement and threatens constitutionally protected rights. See id. at 498–99; Hanlester Network v. Shalala, 51 F.3d 1390, 1398 (9th Cir. 1995). A provision that nominally imposes only civil penalties but nonetheless carries a “prohibitory and stigmatizing effect” may warrant a “relatively strict test.” Hoffman Estates, 455 U.S. at 499.
The plaintiffs ask us to apply an exacting vagueness standard because the No Fly List criteria penalize First Amendment-protected speech and association and impose a punishment – an indefinite bar on air travel – of comparable severity to deportation. See Dimaya, 138 S. Ct. at 1213 (applying “the most exacting vagueness standard” in removal cases “‘in view of the grave nature of deportation’” (quoting Jordan v. De George, 341 U.S. 223, 231 (1951)); Hoffman Estates, 455 U.S. at 499 (“If . . . the law interferes with the right of free speech or of association, a more stringent vagueness test should apply.”).
The government counters that because the No Fly List criteria impose civil rather than criminal penalties and “the consequences of imprecision are qualitatively less severe,” we should “express[] greater tolerance.” Hoffman Estates, 455 U.S. at 498–99; see also Gilmore v. Gonzales, 435 F.3d 1125, 1135 (9th Cir. 2006) (distinguishing the vagueness standard applied to penal statutes from a challenge to the government’s airline passenger identification policy on the

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ground that the latter “simply prevent[ed] [passengers] from boarding commercial flights” and did not “impose any criminal sanctions, or threats of prosecution, on those who do not comply”). The government points out, moreover, that “perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.” Holder v. Humanitarian Law Project, 561 U.S. 1, 19 (2010) (quoting Williams, 553 U.S. at 304); see, e.g., Grayned, 408 U.S. at 108–14 (rejecting a vagueness challenge to a criminal law that implicated First Amendment activities); Scales v. United States, 367 U.S. 203, 223 (1961) (same). Under the No Fly List policy, “nominations must not be based solely on the individual’s race, ethnicity, national origin, religious affiliation, or activities protected by the First Amendment as free speech, the exercise of religion, freedom of the press, freedom of peaceful assembly, and petitioning the government for redress of grievances.”
Ultimately, we need not decide whether this case calls for the most exacting vagueness standard. Even assuming for purposes of our analysis that a strict standard applies, the plaintiffs’ vagueness challenges to the No Fly List criteria fail.
2. The As-Applied Vagueness Challenges
As noted, the plaintiffs’ as-applied vagueness challenges assert both that the No Fly List criteria fail to give ordinary people fair notice of the conduct it punishes and that the criteria are so standardless that they invite arbitrary enforcement. We address these contentions in turn.
a. Fair Notice
Whether a provision is vague for lack of fair notice is an objective inquiry. See Williams, 553 U.S. at 304–05;

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Grayned, 408 U.S. at 108. We ask whether the law gives “a person of ordinary intelligence fair notice of what is prohibited,” Williams, 553 U.S. at 304, not whether a particular plaintiff actually received a warning that alerted him or her to the danger of being held accountable for the behavior in question. See Maynard v. Cartwright, 486 U.S. 356, 361 (1988); cf. Grayned, 408 U.S. at 108. The question, therefore, is whether a reasonable person would have known that the plaintiffs’ alleged conduct fell within the No Fly List criteria. See Humanitarian Law Project, 561 U.S. at 18; Maynard, 486 U.S. at 361; United States v. Kim, 449 F.3d 933, 941–42 (9th Cir. 2006).
The plaintiffs argue the No Fly List criteria are unconstitutionally vague because they provide no notice of what specific conduct they proscribe, leaving an ordinary person to guess what behavior might lead the government to determine that someone represents a threat of committing an act of terrorism; permit a threat finding based on conduct that is not unlawful, let alone clearly so; fail to specify the degree of risk inherent in the concept of a “threat”; and are based on predictive judgments about future criminal behavior that are inherently unreliable and error-prone. The plaintiffs contend the government has identified no behavioral indicators that can accurately predict whether someone will engage in terrorist activity.
We are not persuaded that the criteria are vague merely because they are based on a threat assessment involving a prediction of future criminal conduct. In Schall v. Martin, 467 U.S. 253, 278–79 (1984), the Supreme Court rejected the argument that a provision was “fatally vague” because it authorized pretrial detention of juveniles deemed a “serious risk” of committing a crime before their next court appearance. Similarly, in Jurek v. Texas, 428 U.S. 262, 272–

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76 (1976) (plurality opinion), the Court rejected the argument that a capital sentencing scheme was “so vague as to be meaningless” because it required the jury to find whether the defendant posed a “continuing threat to society.” As the Court explained in Schall:
[F]rom a legal point of view there is nothing inherently unattainable about a prediction of future criminal conduct. Such a judgment forms an important element in many decisions, and we have specifically rejected the contention . . . ‘that it is impossible to predict future behavior and that the question is so vague as to be meaningless.’

467 U.S. at 278–79 (footnote omitted) (quoting Jurek, 428 U.S. at 274).6
We are not persuaded, moreover, that the criteria are vague simply because they fail to delineate a set of factors

6 The plaintiffs seek to distinguish Schall and Jurek on three grounds. First, they contend the risk assessments at issue in Schall and Jurek required a prior judicial determination of at least probable cause to believe the individual had already engaged in clearly proscribed conduct. See Schall, 467 U.S. at 258–60 (judicial probable cause finding within days after detention began); Jurek 428 U.S. at 267 (defendant had been convicted of a capital offense). Second, they argue Schall and Jurek involved procedural protections – including the right to counsel, disclosure of evidence and adversarial hearings – designed to reduce the possibility of error inherent in a risk assessment. Third, the plaintiffs contend predictions of future dangerousness in pretrial and sentencing contexts rest on “decades of judicial practice,” whereas here, the government has not identified any indicators that can reliably assess the likelihood that a given person will commit a terrorist offense. These concerns speak more to the plaintiffs’ procedural and substantive due process challenges than to vagueness.

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relevant to a threat assessment. As the Court explained in Schall, “a prediction of future criminal conduct is ‘an experienced prediction based on a host of variables’ which cannot be readily codified.” 467 U.S. at 279 (quoting Greenholtz v. Neb. Penal Inmates, 442 U.S. 1, 16 (1979)).
Furthermore, a conduct-based threat assessment is not vague merely because it takes lawful conduct into account. The pretrial detention decision in Schall was “based on as much information as can reasonably be obtained,” including a range of factors that did not amount to unlawful, let alone clearly unlawful, conduct. Id. (listing, by way of example, relevant factors such as lack of parental control and the child’s “school situation”). Likewise, Jurek observed that the jury must be able to consider “all possible relevant information” in deciding whether a person convicted of capital murder was likely to commit “criminal acts of violence” that would constitute a “continuing threat to society” – terms that the statute left undefined. Jurek, 428 U.S. at 272, 276.
Nor are the criteria vague merely because they fail to specify the “degree of risk inherent in the concept of a ‘threat.’” The plaintiffs are correct that the Supreme Court emphasized this factor in striking down the statutory provisions at issue in Johnson and Dimaya. The Court struck down those provisions in part because they “left unclear what threshold level of risk” was required. See Dimaya, 138 S. Ct. at 1214 (citing Johnson, 135 S. Ct. at 2558).7 In both cases, however, the Court “emphasized that

7 Johnson struck down the residual clause of the Armed Career Criminal Act, which defined the term “violent felony” to include any felony that “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B) (emphasis added).

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this feature alone would not have violated the void-forvagueness doctrine: Many perfectly constitutional statutes use imprecise terms like ‘serious potential risk’ . . . or ‘substantial risk’ . . . .” Id. The indeterminate risk standard rendered the provisions vague only because it was combined with a second factor – the categorical approach – that required the court to imagine the kind of conduct involved in the “ordinary case” of a crime and then decide whether that abstract scenario presented the requisite risk of physical injury or physical force. See United States v. Davis, 139 S. Ct. 2319, 2326 (2019) (“Johnson and Dimaya . . . . teach that the imposition of criminal punishment can’t be made to depend on a judge’s estimation of the degree of risk posed by a crime’s imagined ‘ordinary case.’”); Dimaya, 138 S. Ct. at 1213–14; Johnson, 135 S. Ct. at 2557–58. Here, by contrast, the categorical approach does not apply, no “ordinary case” inquiry is required and the threat assessment required under the No Fly List criteria applies to real-world conduct. Johnson and Dimaya, therefore, are distinguishable. See Davis, 139 S. Ct. at 2327 (“[A] casespecific approach would avoid the vagueness problems that doomed the statutes in Johnson and Dimaya. In those cases, we recognized that there would be no vagueness problem with asking a jury to decide whether a defendant’s ‘realworld conduct’ created a substantial risk of physical violence.”); Johnson, 135 S. Ct. at 2561 (“As a general matter, we do not doubt the constitutionality of laws that call

Dimaya invalidated the residual clause of the Immigration and Nationality Act, which defined the term “crime of violence” to include “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Id. § 16(b) (emphasis added).

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for the application of a qualitative standard such as ‘substantial risk’ to real-world conduct . . . .”).
Perhaps most significantly, the plaintiffs emphasize that the criteria are silent as to the kinds of specific conduct that may lead to inclusion on the No Fly List. The criteria do not, for example, delineate the types of associations, foreign travel or online activities in which an individual can safely engage or, alternatively, that would raise suspicion. This is a valid concern. Although “a prediction of future criminal conduct is ‘an experienced prediction based on a host of variables’ which cannot be readily codified,” Schall, 467 U.S. at 279 (quoting Greenholtz, 442 U.S. at 16), and “due process does not require ‘impossible standards’ of clarity,” Kolender, 461 U.S. at 361 (quoting United States v. Petrillo, 332 U.S. 1, 7 (1947)), further precision may be required where possible and practical, see id.
Ultimately, this case does not require us to address whether further precision was required in the abstract. Even if the criteria might be vague as applied to others – a question we do not reach – this is an as-applied challenge, and we are persuaded that each of these plaintiffs had fair notice that his conduct would raise suspicion under the criteria. It was reasonably clear to one of the plaintiffs, for example, that a person would fall within the criteria if he traveled to Somalia “to fight jihad and to train for jihad,” received weapons training at a camp associated with a foreign terrorist organization (FTO) and fought with a group that likely included members of al-Qaeda. A second plaintiff had fair notice that the criteria applied to a person who traveled to Somalia to join a group associated with a foreign terrorist organization, received weapons training from that group and served as a medic near the front line of combat. It was reasonably clear to someone in a third plaintiff’s position

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that the criteria applied to a person who appears to have endorsed a specially designated global terrorist’s message by distributing that terrorist’s lectures and communicating with the terrorist, wrote posts on the terrorist’s website advocating bombing members of another religious group and made statements about his willingness to fight in Iraq against the United States.8 Finally, although a fourth plaintiff’s notification letter stated only that he was included on the No Fly List based on “concerns about the nature and purpose of [his] travel to Yemen in 2010,” the classified information filed by the government satisfies us that someone in this plaintiff’s position had fair notice that his conduct fell under the second of the No Fly List criteria. Thus, notwithstanding their lack of specificity, the criteria provided fair notice to these plaintiffs.
The plaintiffs also point out that the government did not disclose the four criteria “until well after Plaintiffs filed this lawsuit.” “Thus,” in their view, “even if Plaintiffs and the Court could discern what conduct the criteria proscribe now[,] . . . Plaintiffs did not have any notice, let alone ‘fair notice,’ that their . . . conduct could have led to placement on the No Fly List when it occurred.” The operative question, however, is whether the plaintiffs had fair notice of the No Fly List policy at the time of their conduct, not whether they had notice of the written criteria summarizing that policy. See Gilmore, 435 F.3d at 1135–36 (“Although Gilmore was not given the text of the identification policy . . . , he was nonetheless accorded adequate notice given that he was informed of the policy and how to comply.”). Here,

8 Three of the plaintiffs were included on the No Fly List based on the fourth No Fly List criterion – i.e., TSC determined they represented “[a] threat of engaging in or conducting a violent act of terrorism and [were] operationally capable of doing so.”

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the written criteria say only that inclusion on the No Fly List turns on whether an individual poses a threat of committing (a) aviation-related terrorism, (b) domestic terrorism against the U.S. homeland, (c) international terrorism against U.S. interests abroad or (d) an act of terrorism that the individual is operationally capable of carrying out. The plaintiffs have not shown they lacked fair notice of this policy before the written criteria were disclosed.
b. Arbitrary Enforcement
The plaintiffs alternatively argue the No Fly List criteria are unconstitutionally vague because they vest the government with unbridled enforcement discretion. See Dimaya, 138 S. Ct. at 1212 (“The void-for-vagueness doctrine . . . guards against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries, and judges.”); Williams, 553 U.S. at 304; Kolender, 461 U.S. at 358. “[I]f arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.” Grayned, 408 U.S. at 108.
Upon review of the government’s public and classified filings, we are satisfied that the No Fly List criteria are governed by constitutionally sufficient standards, at least as applied to these plaintiffs. Rules governing the No Fly List require a nominating agency to provide a summary of the underlying substantive information demonstrating that a nominee meets the criteria for inclusion on the list. This information is then assessed according to the interagency Watchlisting Guidance to determine whether there is reasonable suspicion that the individual represents a threat of committing a terrorist act. The nominator must rely on articulable intelligence to meet the reasonable suspicion standard; mere guesses or “hunches” are insufficient.

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It is not the case that the No Fly List criteria lack “any ascertainable standard for inclusion and exclusion,” Smith v. Goguen, 415 U.S. 566, 578 (1974), nor do they contain “no guidelines, such that the authorities can arbitrarily prosecute one class of [persons] instead of another,” Kim, 449 F.3d at 943. Rather, application of the criteria turns on whether – based on articulable, concrete intelligence, assessed according to the Watchlisting Guidance – there is a reasonable suspicion the nominee represents a threat of committing an act of terrorism. The reasonable suspicion standard, moreover, “ensures the existence of ‘neutral limitations on the conduct of individual [law enforcement] officers.’” Kolender, 461 U.S. at 360–61 (quoting Brown v. Texas, 443 U.S. 47, 51 (1979)). Accordingly, we are not persuaded, on the facts of this case, that the criteria raise substantial concerns of arbitrary application.
3. The Facial Vagueness Challenges
“[V]agueness challenges to statutes that do not involve First Amendment violations must be examined as applied to the defendant.” Kim, 449 F.3d at 942; see Maynard, 486 U.S. at 361. “A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” Hoffman Estates, 455 U.S. at 495. Thus, as a general matter, a defendant who cannot sustain an as-applied vagueness challenge to a statute cannot be the one to make a facial vagueness challenge to the statute.9

9 These requirements are relaxed in the First Amendment context. Under the First Amendment overbreadth doctrine, “[l]itigants . . . are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or

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We recognize that this rule is not absolute. In Johnson, for example, the Supreme Court “looked past [the] asapplied challenge directly to the petitioner’s facial challenge.” Henry v. Spearman, 899 F.3d 703, 709 (9th Cir. 2018). Thus, the general rule that a litigant whose conduct is clearly prohibited by a statute cannot be the one to make a facial vagueness challenge is subject to exceptions.
We do not, however, agree with the plaintiffs’ argument that the general rule has been altogether abolished. Rather than arguing an exception applies here, the plaintiffs raise a blanket challenge to the general rule. Exceptions aside, they argue more broadly that it is no longer the case that a litigant whose conduct is clearly prohibited by a statute cannot be the one to make a facial vagueness challenge. They note that, in Johnson and Dimaya, the Supreme Court squarely rejected the proposition that a statute is void for vagueness only if it is vague in all its applications. See Johnson, 135 S. Ct. at 2561; Guerrero v. Whitaker, 908 F.3d 541, 544 (9th Cir. 2018). They maintain that the rule that a litigant whose conduct is clearly prohibited by a statute cannot be the one to make a facial vagueness challenge is nothing more than a corollary to the now discarded rule that a facial challenge requires a statute to be vague in all its applications. Thus, in

assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973); see also Humanitarian Law Project, 561 U.S. at 20; Williams, 553 U.S. at 304. Here, the plaintiffs have not asserted a First Amendment overbreadth claim. Moreover, “[e]ven assuming that a heightened [vagueness] standard applies because the [No Fly List criteria] potentially implicate[] speech,” the rule that a plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others “makes no exception for conduct in the form of speech.” Humanitarian Law Project, 561 U.S. at 20–21.

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their view, Johnson and Dimaya “plainly establish that Plaintiffs may raise – and this Court may decide – their facial vagueness challenge regardless of any question as to whether their own alleged conduct might fall within the scope of the No Fly List criteria.”
We disagree. The principle that a litigant whose conduct is clearly prohibited by a statute cannot be the one to make a facial vagueness challenge rests on an independent foundation, apart from the vague-in-all-applications rule:
Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court. A closely related principle is that constitutional rights are personal and may not be asserted vicariously. These principles rest on more than the fussiness of judges. They reflect the conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws. Constitutional judgments, as Mr. Chief Justice Marshall recognized, are justified only out of the necessity of adjudicating rights in particular cases between the litigants brought before the Court . . . .

Broadrick, 413 U.S. 610–11 (citations omitted).

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Johnson and Dimaya did not explicitly question the rule that a litigant whose conduct is clearly prohibited by a statute cannot be the one to make a facial vagueness challenge. Nor did they question the independent foundation for that rule described in Broadrick. Accordingly, we conclude that Johnson and Dimaya did not alter the general rule that a defendant whose conduct is clearly prohibited cannot be the one to make a facial vagueness challenge to a statute. Cf. United States v. Cook, 914 F.3d 545, 554 (7th Cir. 2019), cert. granted and judgment vacated on other grounds, 2019 WL 4921160 (U.S. Oct. 7, 2019).
This conclusion is not at odds with our recent decision in Henry. There, we observed that the rule that “a statute must be vague as applied to the person challenging it . . . may not reflect the current state of the law.” 899 F.3d at 709. We did not reach a conclusion on that question, however. The only question we decided was whether the petitioner had “made a prima facie showing that he has standing to challenge California’s second-degree felony-murder rule as unconstitutionally vague” – i.e., “‘a sufficient showing of possible merit to warrant a fuller exploration by the district court.’” Id. at 706, 708 (quoting Cooper v. Woodford, 358 F.3d 1117, 1119 (9th Cir. 2004)). We did not ultimately decide whether Johnson or Dimaya abrogated the rule that a litigant whose conduct is clearly prohibited by a statute cannot bring a facial vagueness challenge.
In approaching this question, moreover, we are mindful of the Supreme Court’s repeated admonitions that it is that Court’s “prerogative alone to overrule one of its precedents.” Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016) (per curiam) (quoting United States v. Hatter, 532 U.S. 557, 567 (2001)); see Hohn v. United States, 524 U.S. 236, 252–53 (1998) (“Our decisions remain binding precedent until we see fit to

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reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.”); Agostini v. Felton, 521 U.S. 203, 237 (1997) (“[I]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” (quoting Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989))).
In sum, we are not persuaded by plaintiffs’ contention that we may cast aside the longstanding rule that a litigant whose conduct is clearly prohibited by a statute cannot be the one to make a facial vagueness challenge. The relevant question, therefore, is simply whether this case, like Johnson and Dimaya, warrants an exception to this rule. We conclude that Johnson and Dimaya are distinguishable, and thus that no departure from the rule is warranted.
First, both Johnson and Dimaya suggested the residual clauses were plagued by such indeterminacy that they might be vague even as applied to the challengers. See Johnson, 135 S. Ct. at 2559–60 (observing that application of the residual clause to the defendant’s conviction for unlawful possession of a short-barreled shotgun was not “so easy after all”); Dimaya, 138 S. Ct. at 1214 n.3 (making the same observation as to the petitioner’s conviction for completed burglary). Second, although the Court did not say so explicitly, the residual clauses did not lend themselves easily to a traditional as-applied analysis. Both cases involved the categorical approach, which “requires the judge to imagine how the idealized ordinary case of the crime subsequently plays out,” Johnson, 135 S. Ct. at 2557–58, instead of considering the conduct underlying the convictions. This limited the extent to which the Court could examine the

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vagueness challenges “in light of the facts of the case at hand,” Maynard, 486 U.S. at 361, as is required in an asapplied challenge. See Cook, 914 F.3d at 553 (“It is not clear how much Johnson – and the Court’s follow-on decision last term in Sessions v. Dimaya . . . – actually expand the universe of litigants who may mount a facial challenge to a statute they believe is vague [because] so much of the Court’s analysis in Johnson deals with a statute that is in key respects sui generis.”). Thus, to the extent Johnson and Dimaya bypassed as-applied challenges and proceeded directly to facial vagueness, that approach appears to have turned on the “exceptional circumstances” of the provisions at issue. See Copeland v. Vance, 893 F.3d 101, 111 n.2 (2d Cir. 2018).10
This case does not present exceptional circumstances. The plaintiffs raise a straightforward vagueness challenge to the No Fly List criteria, which are applied using a risk determination based on real-world conduct. Because there is no reason to depart from the traditional rule that a person to whom a provision clearly applies cannot raise a facial vagueness challenge, see Hoffman Estates, 455 U.S. at 495, and because we conclude the criteria are not vague as applied to the plaintiffs, we decline to reach the plaintiffs’ facial vagueness claims.
B. Procedural Due Process
The plaintiffs argue that, despite the 2015 revisions, the DHS TRIP redress procedures continue to violate procedural

10 Similar exceptional circumstances appear to have been present in Henry. See Henry, 899 F.3d at 707–08 (discussing the petitioner’s contention that the second-degree felony murder rule at issue presented “the same two features of indeterminacy” as the residual clauses at issue in Johnson and Dimaya).

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due process. We apply the Mathews v. Eldridge, 424 U.S. 319 (1976), balancing test. See Hamdi v. Rumsfeld, 542 U.S. 507, 528–29 (2004) (plurality opinion) (applying Mathews balancing to a procedural due process claim by an American citizen whom the government had classified and detained as an enemy combatant); Al Haramain II, 686 F.3d at 979 (applying Mathews to a procedural due process claim by an organization challenging its designation as a specially designated global terrorist).
Mathews set forth a three-part inquiry to determine whether administrative procedures provided to protect a liberty or property interest are constitutionally sufficient:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews, 424 U.S. at 335. “In ‘balancing’ the Mathews factors, we are mindful that ‘the requirements of due process are flexible and call for such procedural protections as the particular situation demands.’” Vasquez v. Rackauckas, 734 F.3d 1025, 1044 (9th Cir. 2013) (quoting Wilkinson v. Austin, 545 U.S. 209, 224–25 (2005)). We begin by addressing the first and third factors and then turn to the second.

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1. The Private Interest at Stake
The plaintiffs undoubtedly have a strong liberty interest in domestic and international travel. See Kent v. Dulles, 357 U.S. 116, 125–26 (1958) (“The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without the due process of law under the Fifth Amendment. . . . Freedom of movement across frontiers in either direction, and inside frontiers as well . . . is basic in our scheme of values.”); Gilmore, 435 F.3d at 1136–37 (noting “the fundamental right to interstate travel”). The plaintiffs may not “possess a fundamental right to travel by airplane,” Gilmore, 435 F.3d at 1137 (emphasis added), but in many instances air travel constitutes the only practical means of traveling across great distances, especially internationally. As the district court noted, “the realistic implications of being on the No Fly List are potentially farreaching.” Latif III, 28 F. Supp. 3d at 1149.
Plaintiffs have suffered significantly[,] including long-term separation from spouses and children; the inability to access desired medical and prenatal care; the inability to pursue an education of their choosing; the inability to participate in important religious rites; loss of employment opportunities; loss of government entitlements; the inability to visit family; and the inability to attend important personal and family events such as graduations, weddings, and funerals. The Court concludes international travel is not a mere convenience or luxury in this modern world. Indeed, for many international travel is a necessary aspect of liberties sacred to members of a free society.

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Id. at 1149–50. The plaintiffs’ liberty interest in air travel, therefore, is substantial.
We note, however, that “the freedom to travel abroad . . . is subordinate to national security and foreign policy considerations; as such, it is subject to reasonable government regulation.” Haig v. Agee, 453 U.S. 280, 306 (1981). Furthermore, “[a]lthough the freedom to travel internationally is a liberty interest recognized by the Fifth Amendment,” we have said that it is “not accorded the same stature as the freedom to travel among the states.” Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431, 1438–39 (9th Cir. 1996).
2. The Government’s Interest
On the other side of the scale, the government asserts interests of the highest order in combatting terrorism and withholding national security information from unauthorized persons. “[N]ational security is a compelling government interest,” In re Nat’l Sec. Letter, 863 F.3d 1110, 1123 (9th Cir. 2017), and combatting terrorism is “an urgent objective of the highest order,” Humanitarian Law Project, 561 U.S. at 28. Likewise, “keeping sensitive information confidential in order to protect national security is a compelling government interest.” In re Nat’l Sec. Letter, 863 F.3d at 1123; see also Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988); Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192, 207 (D.C. Cir. 2001). The government has presented persuasive evidence describing the potential harms posed by disclosure of privileged information regarding an individual’s inclusion on the No Fly List.

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3. The Risk of Erroneous Deprivation and the Probable Value of Any Additional Procedural Safeguards
Under the second Mathews factor, we examine whether the DHS TRIP procedures provided to the plaintiffs risked erroneous deprivation of their liberty interests, as well as the value of any additional or substitute procedural safeguards. See Mathews, 424 U.S. at 335. “As the Mathews balancing test makes clear, we must carefully assess the precise ‘procedures used’ by the government, ‘the value of additional safeguards,’ and ‘the burdens of additional procedural requirements.’” Al Haramain II, 686 F.3d at 980 (quoting Foss v. Nat’l Marine Fisheries Serv., 161 F.3d 584, 589 (9th Cir. 1998)). “[T]he Constitution certainly does not require that the government take actions that would endanger national security; nor does it require the government to undertake every possible effort to mitigate the risk of erroneous deprivation and the potential harm to the private party. But the Constitution does require that the government take reasonable measures to ensure basic fairness to the private party and that the government follow procedures reasonably designed to protect against erroneous deprivation of the private party’s interests.” Id.
Under the revised DHS TRIP procedures, individuals have a right to: (1) an administrative challenge to their inclusion on the No Fly List; (2) a letter identifying the criterion or criteria used to place them on the list; (3) an unclassified summary of the information supporting their inclusion on the list that identifies at least some of the reasons for their placement on the list, subject to national security concerns; (4) submit exculpatory information to the government for reconsideration of their placement on the list; (5) review by the TSA Administrator; and (6) judicial

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review of the TSA’s decision based on the administrative record before the TSA Administrator.
The plaintiffs contend these procedures are constitutionally inadequate because they pose a high risk of error and sweep onto the No Fly List many individuals who do not present a genuine terrorism threat.11 They argue due process requires additional procedures, including: (1) a threat finding by “clear and convincing evidence” rather than “reasonable suspicion”; (2) the right to be informed of all reasons for their placement on the list; (3) access to the evidence relied upon by the government to include them on the list, not just a summary of that evidence; (4) access to any exculpatory evidence in the government’s possession; (5) a live hearing affording them the opportunity to crossexamine the witnesses against them; and (6) the use of procedures like those authorized in criminal cases under the Classified Information Procedures Act (CIPA), such as allowing a lawyer with security clearance to review the classified information used to justify their inclusion on the No Fly List. We address these additional procedures in turn below.
In summary, we hold that the “reasonable suspicion” standard satisfies due process. We hold that individuals challenging their No Fly List designation are presumptively entitled to a full statement of the reasons for their inclusion on the list and to disclosure of the original evidence –

11 The plaintiffs submitted declarations by Dr. James Austin, a correctional sociologist with expertise in risk assessment in the criminal justice context, and Dr. Marc Sageman, an intelligence community consultant and forensic psychiatrist. Both said they were unaware of any methodological system that can reliably predict terrorist activity, and both opined that the DHS TRIP procedures are not accurate enough to guard against a high risk of error.

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inculpatory and exculpatory – upon which the government relied in making the designation. This entitlement, however, is qualified by national security concerns. Under the framework we established in Al Haramain II, the government may withhold classified information that truly implicates national security so long as it undertakes reasonable measures to mitigate the potential unfairness to the affected traveler. The government may, for example, provide an unclassified summary of the classified information or permit a lawyer for the affected traveler to view the information after receiving a security clearance and pursuant to a protective order. The government may altogether withhold classified information only when such measures are not practical. Next, although we do not foreclose the need for a hearing in another case, we hold these plaintiffs were not entitled to a live hearing affording them the opportunity to cross-examine witnesses. Finally, we once again hold that CIPA-like procedures, such as disclosure of classified information to cleared counsel, may be employed where appropriate, although their use was not required here. Applying these principles, we conclude the procedures provided to the plaintiffs were constitutionally sufficient, or that any error was harmless. Accordingly, we hold the district court properly granted summary judgment to the government on the plaintiffs’ procedural due process claims.
a. Clear and Convincing Evidence Standard
Government policy requires a nomination to the No Fly List to be supported by reasonable suspicion that the individual represents a threat of committing an act of terrorism. The plaintiffs argue due process requires a standard higher than reasonable suspicion. They note that, under a reasonable suspicion standard, an individual can be

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included on the No Fly List so long as the government believes he or she might present a threat, even if it determines he or she probably is not a threat. The plaintiffs propose a clear and convincing evidence standard, which applies in a range of civil proceedings involving substantial deprivations of liberty. See, e.g., Foucha v. Louisiana, 504 U.S. 71, 80–81 (1992) (civil commitment); Santosky v. Kramer, 455 U.S. 745, 769 (1982) (termination of parental rights); Woodby v. INS, 385 U.S. 276, 286 (1966) (deportation); Chaunt v. United States, 364 U.S. 350, 353 (1960) (denaturalization); Singh v. Holder, 638 F.3d 1196, 1203 (9th Cir. 2011) (detention pending a removal determination).
“The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’” Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring)). “[I]n any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.” Santosky, 455 U.S. at 755.
Although courts have required clear and convincing evidence in other civil contexts, those cases have involved greater deprivations of liberty than the prohibition against air travel at issue here. The plaintiffs have not pointed to precedent in which a clear and convincing standard was deemed necessary to justify a liberty deprivation comparable to a prohibition against air travel.

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On the other hand, the government has not identified cases in which a reasonable suspicion standard has been deemed sufficient to justify a deprivation of liberty as serious as that at issue here. A reasonable suspicion standard justifies a brief investigative stop or frisk by police officers, an administrative investigation by a government employer into an employee and a non-routine search or seizure at the border. See Terry v. Ohio, 392 U.S. 1, 20–21 (1968) (investigative stop); O’Connor v. Ortega, 480 U.S. 709, 724, 726 (1987) (plurality opinion) (administrative investigation); United States v. Montoya de Hernandez, 473 U.S. 531, 541 (1985) (non-routine search or seizure at the border). Those liberty deprivations are all temporary, whereas the deprivation at issue here is indefinite. Nor has the government identified any circumstances in which a liberty deprivation has been justified by a reasonable suspicion that a person poses a non-imminent threat of harmful conduct. Cf. United States v. Sandoval, 390 F.3d 1077, 1080 (9th Cir. 2004) (holding that an investigative stop is justified “if there is a reasonable suspicion that the suspect is engaged in, or is about to engage in, criminal activity” (emphasis added)).
We nonetheless conclude that the reasonable suspicion standard satisfies procedural due process here. Congress has mandated that TSA “identify individuals on passenger lists who may be a threat to civil aviation or national security” and prevent such individuals from boarding aircraft. 49 U.S.C. § 114(h)(3)(A) (emphasis added). By doing so, Congress has made a reasonable “judgment about how the risk of error should be distributed between litigants” in this context, Santosky, 455 U.S. at 755, and the reasonable suspicion standard reasonably implements that judgment. Although the plaintiffs’ liberty interest is substantial, it must be balanced against the government’s “urgent” interest in

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combatting terrorism, Humanitarian Law Project, 561 U.S. at 28, and the public’s “manifest interest in aviation safety,” Aeronautical Repair Station Ass’n v. FAA, 494 F.3d 161, 178 n.10 (D.C. Cir. 2007). The reasonable suspicion standard therefore satisfies due process.
b. A Full Statement of Reasons
The plaintiffs argue procedural due process requires individuals to be provided a statement of all reasons for their inclusion on the No Fly List. Here, the notification letter each plaintiff received from DHS TRIP supplied an unclassified summary of reasons for his inclusion on the list, but at least some of those letters failed to provide all such reasons. The plaintiffs contend these summaries deprived them of “adequate notice and a meaningful opportunity to respond” to the DHS TRIP determinations. Al Haramain II, 686 F.3d at 984.
“Due process requires notice ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 272 (2010) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)); see also Al Haramain II, 686 F.3d at 986 (holding due process required the government to provide, “at a minimum, a terse and complete statement of reasons for the investigation,” and finding “no reason why [the government] could not have given [such] notice in this particular case”); see also Gete v. INS, 121 F.3d 1285, 1297 (9th Cir. 1997) (holding that notice of an administrative forfeiture of a vehicle under 8 U.S.C. § 1324(b) must include “the exact reasons” for the adverse action). “[T]he opportunity to guess at the factual and legal bases for a government action does

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not substitute for actual notice of the government’s intentions.” Al Haramain II, 686 F.3d at 986–87.
Where national security concerns arise, however, an exact statement of reasons “may not always be possible.” Id. at 983. Under the framework we established in Al Haramain II, the government may use classified information without disclosure in “extraordinary circumstances” – i.e., “if that information truly implicates national security.” Id. at 982 & n.9. When this occurs, however, we have accepted the proposition that the government must, if possible, “undertake some reasonable measure to mitigate the potential unfairness to” the affected private party. Id. at 982. The government may, “for example, provide an unclassified summary of the classified information or permit [the affected party’s] lawyer to view the documents after receiving a security clearance and pursuant to a protective order.” Id. Even these mitigation measures, however, may not always be possible. “[A]n unclassified summary may not be possible because, in some cases, the subject matter itself may be classified and cannot be revealed without implicating national security.” Id. at 983. “Depending on the circumstances, [the government] might have a legitimate interest in shielding the materials even from someone with the appropriate security clearance.” Id.; see Gen. Dynamics Corp. v. United States, 563 U.S. 478, 482 (2011) (noting that disclosure of sensitive information to a limited number of lawyers led to “unauthorized disclosure of military secrets”). Courts should adopt “a case-by-case approach” to determining what disclosure of classified information is required, considering, “at a minimum, the nature and extent of the classified information, the nature and extent of the threat to national security, and the possible avenues available to allow the designated person to respond more effectively to the charges.” Al Haramain II, 686 F.3d at 984.

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Applying the Al Haramain framework, we hold the government may withhold a reason for a DHS TRIP complainant’s inclusion on the No Fly List only if two conditions are satisfied:
(1) the withheld reason is classified and truly implicates national security; and
(2) reasonable mitigation measures are not possible without unduly implicating national security. Mitigation measures may include, for example, disclosing the classified evidence to cleared counsel subject to a protective order or providing the complainant an unclassified summary of the information.
See id. at 982–84. Unless these conditions are satisfied, due process requires a full statement of reasons. See id.; see also Gete, 121 F.3d at 1297–98.
We emphasize that the government’s decision to limit disclosures due to national security concerns must not be taken lightly. Cf. Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1080 (9th Cir. 2010) (en banc) (applying the state secrets doctrine); Al Haramain Islamic Found., Inc. v. Bush (Al Haramain I), 507 F.3d 1190, 1203 (9th Cir. 2007) (“Simply saying ‘military secret,’ ‘national security’ or ‘terrorist threat’ . . . is insufficient to support the [state secrets] privilege.”). When the government withholds information by citing national security, a reviewing court should require the government to inform the court what information it has withheld, why the information was withheld and why less drastic alternatives were not employed, as the district court did here. See, e.g., Latif IV, 2016 WL 1239925, at *14, 19–20. In responding to such an

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order, the government, through a competent witness with personal knowledge, must describe the withheld information in sufficient detail – and, if necessary, file the withheld information with the court – to allow the court to decide whether the two conditions we have identified are satisfied. A court’s review of the government’s assertions, in turn, should be thorough and critical. See Jeppesen, 614 F.3d at 1082, 1086; Al Haramain I, 507 F.3d at 1203 (“The process of in camera review . . . . places on the court a special burden to assure itself that an appropriate balance is struck between protecting national security matters and preserving an open court system.”).
Here, based on our review of the government’s classified filings, we conclude as follows. As to the first condition under the Al Haramain framework, we are satisfied that the reasons that were not disclosed to the plaintiffs were classified and truly implicate national security. The government has presented detailed evidence describing the potential harms posed by disclosure of the classified information at issue here.
As to the second condition, we are persuaded that an unclassified summary of the undisclosed reasons was not possible here. Although the plaintiffs contend the additional reasons for their inclusion on the No Fly List should have been disclosed to cleared counsel, the district court found that “the record does not reflect whether any Plaintiff is represented by counsel with an appropriate security clearance,” and the plaintiffs have not challenged that finding on appeal. See Latif IV, 2016 WL 1239925, at *18.
Furthermore, even assuming cleared counsel were available to the plaintiffs and that it was error not to disclose the additional reasons to such counsel, the plaintiffs have not shown that they were prejudiced. See Al Haramain II,

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686 F.3d at 989. This is not a case in which the government withheld the sole or predominant reason for including the plaintiffs on the No Fly List. The government had numerous reasons for designating these plaintiffs, and those reasons generally were disclosed. Given the disclosed reasons, we are not persuaded that the disclosure of additional reasons would have enabled the plaintiffs to undermine their designation on the list.
c. Disclosure of the Underlying Evidence
The plaintiffs seek disclosure of the evidence the government relied upon in placing them on the No Fly List – e.g., recordings of the plaintiffs’ conversations with third parties, the plaintiffs’ own statements to investigators and transcripts of the plaintiffs’ conversations with confidential informants. The government did not disclose any original evidence to the plaintiffs, whether classified or unclassified. Rather, it supplied them with unclassified summaries of that evidence. To the extent these summaries were based on classified evidence, the plaintiffs argue the district court should have required the government to identify and disclose that evidence to cleared counsel. To the extent the government relied on unclassified evidence, the plaintiffs contend due process required its disclosure. The plaintiffs assert, moreover, that the summaries did not encompass all of the evidence.
i. Unclassified evidence
The Supreme Court has long recognized the “immutable” principle that “where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.”

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Greene v. McElroy, 360 U.S. 474, 496 (1959). Thus, as a general rule, “due process requires, at the least, that an affected party be informed of the official action, be given access to the unclassified evidence on which the official actor relied and be afforded an opportunity to rebut that evidence.” Ralls Corp. v. Comm. on Foreign Inv. in the U.S., 758 F.3d 296, 319 (D.C. Cir. 2014). “[A] substantial interest in national security supports withholding only the classified information but does not excuse the failure to provide notice of, and access to, the unclassified information.” Id. at 320.12 Accordingly, where a DHS TRIP complainant responds to his or her initial notification letter and requests further information, we hold the government must, as a general matter, disclose all unclassified material evidence relating to the complainant in its possession, not just summaries of that evidence.
Here, the district court concluded that providing summaries of the unclassified evidence was adequate because disclosure of the evidence itself would have “raise[d] significant and likely insoluble practical difficulties because, unlike the context of ordinary civil litigation, separating unclassified information from protected national security information is exceedingly

12 The D.C. Circuit has approved the disclosure of unclassified evidence with respect to, for example, designation as a “significant foreign narcotics trafficker, see Zevallos v. Obama, 793 F.3d 106, 117 (D.C. Cir. 2015), the FAA’s revocation of airmen certificates on security grounds, see Jifry v. FAA, 370 F.3d 1174, 1178, 1184 (D.C. Cir. 2004), designation as a foreign terrorist organization, see People’s Mojahedin Org. of Iran v. Dep’t of State, 327 F.3d 1238, 1241–42 (D.C. Cir. 2003); Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192, 209 (D.C. Cir. 2001), and designation as a specially designated global terrorist, see Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 164 (D.C. Cir. 2003).

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complicated in the national security context.” Latif IV, 2016 WL 1239925, at *14. “For example, a report may contain material, unclassified information regarding an individual placed on the No-Fly List interspersed with classified information that may or may not be material to the No-Fly List determination.” Id. at *14 n.6.
The district court’s analysis reflects the valid concern that “there will be occasions when, as a practical matter, [classified] and [unclassified] information cannot be separated.” Jeppesen, 614 F.3d at 1082. “In some cases, therefore, ‘it is appropriate that the courts restrict the parties’ access not only to evidence which itself risks the disclosure of [classified information], but also those pieces of evidence or areas of questioning which press so closely upon highly sensitive material that they create a high risk of inadvertent or indirect disclosures.’” Id. (quoting Bareford v. Gen. Dynamics Corp., 973 F.2d 1138, 1143–44 (5th Cir. 1992)).
There is, however, no general presumption that classified information cannot be segregated from unclassified information. To the extent the district court applied such a presumption, any error was harmless. See Al Haramain II, 686 F.3d at 988–89. Having reviewed the government’s in camera filings, we are not persuaded that, had the plaintiffs been provided the unclassified evidence itself, rather than summaries, they plausibly would have undermined their designations on the No Fly List. See id. at 989–90.
ii. Classified evidence
As noted, the Al Haramain framework dictates that the government must disclose evidence supporting a DHS TRIP complainant’s inclusion on the No Fly List unless two conditions are satisfied:

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(1) the evidence is classified and truly implicates national security; and
(2) reasonable mitigation measures are not possible without unduly implicating national security. As noted, mitigation measures may include disclosing the classified evidence to cleared counsel subject to a protective order or providing the complainant an unclassified summary of the classified evidence.
See Al Haramain II, 686 F.3d 982–84.13
Here, the first condition is satisfied. Turning to the second condition, the government provided the plaintiffs – other than one of the plaintiffs, whose notification letter said only that the government had concerns about the nature and purpose of his travel to Yemen – with unclassified summaries of the classified evidence. Cf. id. at 982–83. The plaintiffs challenge these summaries on three grounds.
First, they complain that the summaries were incomplete because they failed to summarize all of the evidence. One of the plaintiffs, whose notification letter said only that the government had concerns about his travel to Yemen, received no summary of the evidence against him at all, while the other plaintiffs argue the summaries they received were incomplete. As the government concedes, the notification letters “did not disclose all of the reasons or

13 As noted, where the government fails to disclose evidence on national security grounds, a reviewing court should require the government to explain what evidence it has withheld, why the evidence was withheld and why less drastic alternatives were not employed. Cf. Jeppesen, 614 F.3d at 1082, 1086; Al Haramain I, 507 F.3d at 1203.

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information that the government relied upon in determining that the six Plaintiffs should remain on the No Fly List.” With respect to the plaintiff whose notification letter disclosed only that the government had concerns about the nature and purpose of his travel to Yemen, we have reviewed the materials filed in camera, and we conclude that additional disclosure – even in the form of an unclassified summary – was not possible without unduly implicating national security. See id. at 983. In this plaintiff’s case, and to the extent the other plaintiffs’ notification letters did not fully encompass the classified evidence, such nondisclosure was justified by the need to prevent inadvertent disclosure of the names of cooperating witnesses and other highly sensitive information contained in the original evidence. See id.
Second, the plaintiffs argue that the unclassified summaries provided too little detail to serve their purpose of mitigating the unfairness that arises when the government relies on undisclosed classified evidence. See id. at 982–84. The notification letter for one of the plaintiffs referred to certain statements he allegedly made while detained by the FBI. The plaintiffs argue the letter withheld critical context, thereby limiting his ability to show “bias and coercion” in the case against him. As to two other plaintiffs, their notification letters referred to statements they allegedly made to FBI agents and unidentified third parties. Finally, a fourth plaintiff’s notification letter included a one-sentence disclosure but did not refer to any evidence against him. The plaintiffs argue this prohibited this plaintiff from tailoring his response to the government’s concerns. See Ralls, 758 F.3d at 320.
We conclude the summaries afforded the plaintiffs a meaningful opportunity to tailor their responses to the

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subject matter of the government’s concerns. See Al Haramain II, 686 F.3d at 982–83. In one case, for example, the facts the plaintiff contends were omitted from his letter were within his personal knowledge. As to two other plaintiffs, the summaries they were provided identified the subject matter of the government’s concerns such that they were able to respond meaningfully to the allegations. See id. As to the final plaintiff who was informed only that the government had concerns about his travel to Yemen, we reiterate that additional disclosure – even in the form of an unclassified summary – was not possible without unduly implicating national security.
Third, the plaintiffs argue due process required not only these unclassified summaries but also the disclosure of classified evidence itself to cleared counsel. As noted, however, the district court found that “the record does not reflect whether any Plaintiff is represented by counsel with an appropriate security clearance.” Latif IV, 2016 WL 1239925, at *18. As we explained in Al Haramain II, moreover, there is no general rule requiring both an unclassified summary and disclosure to cleared counsel. Although “the Constitution does require that the government take reasonable measures to ensure basic fairness to the private party,” it “does not require . . . the government to undertake every possible effort to mitigate the risk of erroneous deprivation and the potential harm to the private party.” Al Haramain II, 686 F.3d at 980.
In sum, the government did not violate due process when it provided unclassified summaries of the underlying evidence and withheld from those summaries information that could not be disclosed without jeopardizing national security.

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d. Disclosure of Exculpatory Evidence
The plaintiffs argue the due process concerns underlying Brady v. Maryland, 373 U.S. 83 (1963), require the government to disclose material exculpatory evidence as part of the DHS TRIP redress process. Brady requires the prosecution in a criminal case to disclose “[material] evidence favorable to an accused.” Id. at 87. “The purpose of Brady is to ensure that criminal trials are fair, and that a miscarriage of justice does not occur.” Amado v. Gonzalez, 758 F.3d 1119, 1133 (9th Cir. 2014) (citations and internal quotation marks omitted). In the plaintiffs’ view, Brady’s disclosure obligations should apply to the DHS TRIP review process because access to material exculpatory evidence would reduce the likelihood of error in No Fly List determinations.
The extent to which Brady-like obligations extend to civil cases is an open question. As the government acknowledges, Brady has been applied in the civil context when a substantial private interest is at stake, see Al Maqaleh v. Hagel, 738 F.3d 312, 327 (D.C. Cir. 2013) (alleged enemy combatants detained by the United States military), vacated in part sub nom. al-Najar v. Carter, 135 S. Ct. 1581 (2015); United States v. Edwards, 777 F. Supp. 2d 985, 991–92 (E.D.N.C. 2011) (civil commitment proceedings for sexually dangerous persons); Dhiab v. Bush, No. 051457(GK), 2008 WL 4905489, at *1–2 (D.D.C. Nov. 17, 2008) (habeas proceedings on behalf of alleged enemy combatants detained at Guantanamo); cf. Bismullah v. Gates, 501 F.3d 178, 188 (D.C. Cir. 2007) (holding that, with respect to “enemy combatant” designations, counsel for Guantanamo Bay detainees had a right to access all government information regarding their clients, subject to national security concerns), vacated and remanded sub nom.

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Gates v. Bismullah, 554 U.S. 913 (2008), petitions dismissed, Bismullah v. Gates, 551 F.3d 1068 (D.C. Cir. 2009), or a civil matter is jointly investigated with a criminal prosecution, see United States v. Gupta, 848 F. Supp. 2d 491, 495–97 (S.D.N.Y. 2012) (SEC enforcement action investigated jointly with a criminal case).
“But courts have only in rare instances found Brady applicable in civil proceedings,” Fox ex rel. Fox v. Elk Run Coal Co., 739 F.3d 131, 138 (4th Cir. 2014), “such as when a person’s liberty is at stake,” Brodie v. Dep’t of Health & Human Servs., 951 F. Supp. 2d 108, 118 (D.D.C. 2013), aff’d, 2014 WL 211222 (D.C. Cir. Jan. 10, 2014).
Here, the district court concluded the government’s “obligation to disclose exculpatory information is the same as [its] obligation to provide other material information; i.e., as long as disclosure of the information would not create an undue risk to national security, [the government] must provide sufficient material information, whether exculpatory or inculpatory, to each Plaintiff in order to permit such Plaintiff to respond meaningfully to the reasons he has been placed on the No-Fly List.” Latif IV, 2016 WL 1239925, at *16. To determine whether the government had complied with this requirement, the court required the government to submit for in camera review “(1) a summary of any material information (including material exculpatory or inculpatory information) that [it] withheld from the notice letters sent to each Plaintiff and (2) an explanation of the justification for withholding that information,” id. at *20, and, after reviewing the government’s submissions, it concluded that the government had “provided sufficient justifications for withholding additional information.”
The plaintiffs challenge the district court’s handling of the exculpatory evidence issue on the ground that the district

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court permitted the government to withhold information based on a “undue risk to national security.” We are not convinced, however, that the undue risk standard the district court applied, see id. at *13–16, differs from the Al Haramain framework we have adopted here. The district court, moreover, did not “permit[] the government to withhold information based on a unilateral and categorical assertion of ‘undue risk to national security,’” as the plaintiffs contend. It required the government to explain and justify the information withheld, and it then independently verified the government’s representations. We find no error in the district court’s handling of this subject.
We agree, moreover, with the district court’s considered judgment that the government was required to provide “sufficient material information, whether exculpatory or inculpatory, to each Plaintiff in order to permit such Plaintiff to respond meaningfully to the reasons he has been placed on the No-Fly List,” id. at *16, subject to the Al Haramain framework governing the disclosure of classified evidence. Where the information is classified, the government may use unclassified summaries or disclose the information to cleared counsel. Where even those measures would compromise national security, the information may altogether be withheld.
e. The Right to a Hearing
The plaintiffs argue due process requires a postdeprivation hearing as part of the DHS TRIP process and the opportunity to cross-examine government witnesses.14 They contend due process mandates a hearing as a matter of course

14 The plaintiffs do not challenge the government’s failure to provide pre-deprivation notice of their inclusion on the No Fly List.

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in the DHS TRIP context, given the centrality of credibility determinations and disputed facts to No Fly List determinations and because hearings are required where lesser liberty deprivations are at issue. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 269 (1970) (termination of welfare benefits); Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 19–20 (1978) (cancellation of subsidized utility services); Califano v. Yamasaki, 442 U.S. 682, 696 (1979) (recovery of excess social security payments).
The plaintiffs argue, moreover, that the failure to afford them individual hearings was particularly harmful because their No Fly List determinations turned in large part on their own credibility, the credibility of witnesses, contested facts and hearsay evidence. They object to being denied removal from the No Fly List based on adverse credibility findings made on a written record. They contend that, had hearings taken place, each plaintiff would have presented testimony that he presents no threat to aviation security and refuted any adverse evidence the government disclosed.
The plaintiffs’ request for a hearing focuses in part on the need to cross-examine adverse witnesses. In their response letters to DHS TRIP, the plaintiffs contested many of the allegations against them, creating fact disputes that, in their view, should have been tested at a live hearing. For example, one plaintiff’s notification letter alleged he made several inculpatory statements to FBI agents while detained in Kenya and Ethiopia. This plaintiff apparently did not deny making these statements, but instead argued they were the result of coercion and unlawful interrogation. In his response to DHS TRIP, the plaintiff denied key allegations in the notification letter, including that he traveled to Somalia to “fight jihad” or “train for jihad,” that he was trained to participate in “militant activities,” and that he

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joined a group of “foreign fighters” that he knew to include al-Qaeda members. The plaintiffs argue that, because they were denied hearings, they had no opportunity to test the credibility of the witnesses against them or the accuracy of their accounts. In the plaintiffs’ view, the denial of a hearing and the opportunity to cross-examine adverse witnesses denied them due process.
The government points out that due process does not require a live hearing in every instance. In the government’s view, the unpredictable environment of a live, adversarial hearing makes it particularly inappropriate in the DHS TRIP context, given the risk of exposing protected national security information.
“In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg, 397 U.S. at 269. Due process does not always require a live hearing, however. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985) (“The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement.” (emphasis added)). Where the evidence at issue in a case is documentary and a live hearing would implicate national security interests, for example, a “written hearing” may satisfy due process. See, e.g., Jifry, 370 F.3d at 1183–84 (revocation of airmen certificates on security grounds); Holy Land Found., 333 F.3d at 161–64 (specially designated global terrorist designation); Nat’l Council of Resistance of Iran, 251 F.3d at 209 (foreign terrorist organization designation).
There may be No Fly List cases in which due process would require some type of live hearing or some opportunity to cross-examine witnesses. That determination will require

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weighing the potential value of a hearing to the DHS TRIP complainant – considering the extent to which the No Fly List determination turned on credibility assessments and disputed facts – against the considerable burden on the government, considering the nature and extent of the threat to national security. See Al Haramain II, 686 F.3d at 982– 84. A case-by-case approach is proper. See id. at 984.
Having reviewed the government’s classified materials, we conclude this is not a case in which due process required live hearings. We recognize that the No Fly List determinations in this case turned in part on credibility assessments, contested facts and, in some cases, hearsay evidence. On this record, however, we hold that the value of providing these plaintiffs a live hearing was outweighed by legitimate national security concerns. Affording adversarial hearings with the opportunity to confront adverse witnesses would have risked inadvertently exposing protected information, such as the government’s use of foreign sources, intelligence-gathering techniques and other confidential material.
In reaching our conclusion, we take into consideration the information that was disclosed to the plaintiffs in the notification letters. We note, for example, that the unclassified summary provided to one of the plaintiffs was sufficiently specific that he was able to deny the key allegations in his response letter. Likewise, the unclassified summaries provided to two other plaintiffs were sufficiently detailed as to afford them a meaningful opportunity to respond to the government’s concerns in their written responses. As to the final plaintiff, whose notification letter said only that the government had concerns about his travel to Yemen, we are persuaded after reviewing the classified materials that national security concerns would have made a

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live hearing unduly burdensome. We conclude, in sum, that the opportunity to provide written responses was sufficient to satisfy due process in this case and live hearings were not required.
f. CIPA Procedures
The plaintiffs argue the risks associated with an adversarial hearing would be mitigated by use of the procedures specified for handling classified information in criminal cases under the Classified Information Procedures Act (CIPA), 18 U.S.C. app. 3, §§ 1–16, which is designed “to harmonize a defendant’s right to a fair trial with the government’s right to protect classified information.” United States v. Sedaghaty, 728 F.3d 855, 903 (9th Cir. 2013). The plaintiffs seek the disclosure of classified material to counsel with appropriate security clearances, subject to protective orders.
The government correctly points out that, by statute, CIPA applies only in criminal cases. See, e.g., 18 U.S.C. app. 3, §§ 3, 5; Sedaghaty, 728 F.3d at 903. Nevertheless, we have looked to CIPA for guidance on handling classified materials in civil cases. See Latif II, 686 F.3d at 1130; Al Haramain II, 686 F.3d at 983. Where CIPA-like procedures are appropriate, courts should not hesitate to employ them.15
We conclude, however, that due process did not require the use of CIPA-like procedures here. First, as noted, “the record does not reflect whether any Plaintiff is represented by counsel with an appropriate security clearance.” Latif IV,

15 The utility of making classified disclosures to counsel with security clearances may be limited where counsel are prohibited from sharing that information with their clients, but “limited utility is very different from no utility.” Al Haramain II, 686 F.3d at 983 n.10.

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2016 WL 1239925, at *18. Second, as discussed, where the government undertook other “reasonable measures to ensure basic fairness,” disclosures to cleared counsel were not required. See Al Haramain II, 686 F.3d at 980.
* * *
In sum, weighing the plaintiffs’ private interests, the government’s interests, the risk of erroneous deprivation through the procedures provided, and the value of the additional safeguards proposed by the plaintiffs, we conclude the procedures provided to the plaintiffs were constitutionally sufficient in the case before us, or that any error was nonprejudicial. See Mathews, 424 U.S. at 335. Given the national security concerns at issue, and with the exceptions noted, the government has taken reasonable measures to ensure basic fairness to the plaintiffs and followed procedures reasonably designed to protect against erroneous deprivation of the plaintiffs’ liberty. See Al Haramain II, 686 F.3d at 980. Because there was no prejudicial denial of basic fairness, we do not decide whether, in a different case, less severe travel restrictions might be required as an alternative to a complete ban on air travel. Nor do we address whether the procedures employed here would be adequate in a different case.
C. Jurisdiction
The district court dismissed the plaintiffs’ substantive due process challenges to their inclusion on the No Fly List under 49 U.S.C. § 46110. See Latif VI, 2017 WL 1434648, at *9. Under § 46110(a), a person challenging “an order issued by” the TSA must seek judicial review in the court of appeals rather than the district court.

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Before the 2015 revisions to the DHS TRIP procedures, we held that § 46110 does not bar district court review of a No Fly List order. See Arjmand v. U.S. Dep’t of Homeland Sec., 745 F.3d 1300, 1301–03 (9th Cir. 2014); Latif II, 686 F.3d at 1127–29; Ibrahim v. Dep’t. of Homeland Sec., 538 F.3d 1250, 1255–56 (9th Cir. 2008). Two considerations drove those holdings. First, it was TSC, not TSA, that made the ultimate decision under the pre-2015 rules:
TSA simply passes grievances along to TSC and informs travelers when TSC has made a final determination. TSC – not TSA – actually reviews the classified intelligence information about travelers and decides whether to remove them from the List. And it is TSC – not TSA – that established the policies governing that stage of the redress process.

Latif II, 686 F.3d at 1128. Second, any judicial remedy would have required the involvement of “both TSA and TSC,” given that TSC was “the sole entity with both the classified intelligence information Plaintiffs want and the authority to remove them from the List.” Id. at 1129. We would have needed jurisdiction over TSC to effect relief, and § 46110 did not grant us that jurisdiction. See id.
Under the current procedures, however, the TSA Administrator is solely responsible for issuing a final order maintaining a traveler on the No Fly List. TSC submits a recommendation, along with supporting materials, to the TSA Administrator. If the TSA Administrator requires additional information or clarification, he or she may remand the case to TSC. But the TSA Administrator ultimately

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issues the final order either removing the complainant from the No Fly List or maintaining him or her on the list. The TSA Administrator also has full authority to order the complainant removed from the list. It is no longer the case, therefore, that any remedy must involve TSC. Cf. id. Thus, we hold that § 46110 grants the courts of appeals, rather than the district courts, exclusive jurisdiction over the plaintiffs’ substantive due process claims.16
We recognize that vesting original jurisdiction in the courts of appeals may present practical difficulties in some cases. Judicial review of No Fly List orders may entail factfinding and case management responsibilities that district courts are best equipped to perform. See Ibrahim, 538 F.3d at 1256 (noting a district court’s “ability to take evidence”). But we are bound by the plain language of the statute. Furthermore, as a practical matter, the landscape has changed since we decided Ibrahim. The current DHS TRIP procedures generate an administrative record for a court to review, cf. id., and that record includes the DHS TRIP notification letter’s unclassified summary of the reasons for the complainant’s inclusion on the No Fly List, the final TSA order setting forth the unclassified reasons for the decision to maintain the complainant on the list, the government’s in camera filings, and any material the complainant chose to submit in the administrative proceedings. There are, moreover, options available to an appellate court that finds the administrative record inadequate, including remanding

16 The parties appear to agree that original jurisdiction over the plaintiffs’ procedural due process claims lies in the district court. Those claims challenge the sufficiency of the revised DHS TRIP procedures administered by the TSC, not the substantive decision in the final TSA order.

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the case to the agency for supplementation of the record or additional factfinding. See 49 U.S.C. § 46110(c).
In sum, the plaintiffs are free to assert their substantive challenges to their inclusion on the No Fly List by filing a petition for review in an appropriate court of appeals under § 46110. Although such claims must ordinarily be filed within 60 days after issuance of the order being challenged, a “court may allow the petition to be filed after the 60th day if there are reasonable grounds” for doing so. Id. § 46110(a). Here, the government acknowledges that the plaintiffs have reasonable grounds for delay. Thus, the plaintiffs are free to assert their substantive due process claims in an appropriate court of appeals without fear of having their claims rejected as untimely.
IV. CONCLUSION
The district court properly granted the government’s motion for summary judgment on the plaintiffs’ vagueness and procedural due process claims and properly dismissed their substantive due process claims for lack of subject matter jurisdiction. The judgment of the district court is therefore affirmed.
AFFIRMED.

 
 CONSOLIDATED,PROTECTIVE ORD,REOPENED,STAYED,TERMINATED
U.S. District Court District of Oregon (Portland (3)) CIVIL DOCKET FOR CASE #: 3:10−cv−00750−BR

Latif et al v. United States Department of Justice et al Assigned to: Judge Anna J. Brown Case in other court: 9th Circuit Court of Appeals, 11−35407
9th Circuit Court of Appeals, 14−36027
9th Circuit Court of Appeals, 17−35634 Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 06/30/2010 Date Terminated: 06/09/2017 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Ayman Latif

represented by Hina Shamsi American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004 212−549−2500 Fax: 212−549−2654 Email: hshamsi@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Hugh Handeyside American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 212−548−2500 Fax: 212−549−2654 Email: hhandeyside@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Steven M. Wilker Tonkon Torp LLP 888 SW Fifth Avenue Suite 1600 Portland, OR 97204−2099 503−802−2040 Fax: 503−972−3740 Email: steven.wilker@tonkon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ahilan Arulanantham ACLU Foundation of Southern California 1313 West 8th Street Los Angeles, CA 90017 213−977−5211 Fax: 213−977−5297 Email: aarulanantham@aclusocal.org PRO HAC VICE ATTORNEY TO BE NOTICED

Alan L. Schlosser ACLU of Northern California 39 Drumm Street San Francisco, CA 94111

(415) 621−2493 Fax: (415) 255−8437 Email: aschlosser@aclunc.org TERMINATED: 08/07/2017 PRO HAC VICE
Alexandra F. Smith American Civil Liberties Union Foundation of New Mexico PO Box 566 Albuquerque, NM 87103−0566 505−266−5915 ext 1008 Fax: 505−266−5916 Email: asmith@aclu−nm.org TERMINATED: 09/23/2016 PRO HAC VICE
Ben Wizner American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212−519−7876 Fax: 212−549−2654 Email: bwizner@aclu.org TERMINATED: 10/04/2013 PRO HAC VICE
Catherine A. Wagner American Civil Liberties Union of Southern California 1313 West 8th Street Suite 200 Los Angeles, CA 90064 213−977−5206 Fax: 213−977−5299 Email: cwagner@aclusocal.org TERMINATED: 08/07/2017 PRO HAC VICE
Christopher M. Egleson Akin Gump Strauss Hauer & Feld LLP One Bryant Park New York, NY 10036−6745 212−872−1039 Fax: 212−872−1002 Email: cegleson@akingump.com TERMINATED: 05/05/2015 PRO HAC VICE
Jennifer Pasquarella ACLU Foundation of Southern California 1313 West 8th Street Los Angeles, CA 90017 (213) 977−5236 Fax: (213) 977−5297 Email: jpasquarella@aclu−sc.org TERMINATED: 08/10/2015 PRO HAC VICE
Julia Harumi Mass ACLU of Northern California 39 Drumm Street San Francisco, CA 94111

415−621−2493 Fax: 415− 255−8437 Email: jmass@aclunc.org TERMINATED: 08/07/2017 PRO HAC VICE
Justin H. Bell Akin Gump Strauss Hauer & Feld LLP One Bryant Park New York, NY 10036−6745 212−872−8084 Fax: 212−872−1002 Email: bellj@akingump.com TERMINATED: 08/25/2014 PRO HAC VICE
Kevin Diaz Compassion & Choices 4224 NE Halsey St Ste 335 Portland, OR 97231 503.943.6532 Email: kdiaz@compassionandchoices.org TERMINATED: 08/07/2014
Laura Schauer Ives American Civil Liberties Union of New Mexico P.O. Box 566 Albuquerque, NM 87103 (505) 243−0046 Fax: (505) 266−5916 Email: lives@aclu−nm.org TERMINATED: 06/24/2014 PRO HAC VICE
Mitchell P. Hurley Akin Gump Strauss Hauer & Feld LLP One Bryant Park New York, NY 10036−6745 212−872−1011 Fax: 212−872−1002 Email: mhurley@akingump.com TERMINATED: 08/07/2017 PRO HAC VICE
Nusrat Jahan Choudhury American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 (212) 519−7876 Fax: (212) 549−2654 Email: nchoudhury@aclu.org TERMINATED: 01/09/2014
Reem Salahi Salahi Law 429 Santa Monica Blvd. Suite 550 Santa Monica, CA 90401 (510) 225−8880 Fax: (310) 451−3858 Email: reem@hskrr.com

Plaintiff Mohamed Sheikh Abdirahm Kariye

TERMINATED: 05/02/2016 PRO HAC VICE
represented by Catherine A. Wagner (See above for address) TERMINATED: 08/07/2017 LEAD ATTORNEY PRO HAC VICE
Hina Shamsi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steven M. Wilker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alan L. Schlosser (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Alexandra F. Smith (See above for address) TERMINATED: 09/23/2016 PRO HAC VICE
Ben Wizner (See above for address) TERMINATED: 10/04/2013 PRO HAC VICE
Christopher M. Egleson (See above for address) TERMINATED: 05/05/2015 PRO HAC VICE
Jennifer Pasquarella (See above for address) TERMINATED: 08/10/2015 PRO HAC VICE
Julia Harumi Mass (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Justin H. Bell (See above for address)

Plaintiff Raymond Earl Knaeble, IV

TERMINATED: 08/25/2014 PRO HAC VICE
Kevin Diaz (See above for address) TERMINATED: 08/07/2014
Laura Schauer Ives (See above for address) TERMINATED: 06/24/2014 PRO HAC VICE
Mitchell P. Hurley (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Nusrat Jahan Choudhury (See above for address) TERMINATED: 01/09/2014
Reem Salahi (See above for address) TERMINATED: 05/02/2016 PRO HAC VICE
represented by Hina Shamsi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steven M. Wilker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alan L. Schlosser (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Alexandra F. Smith (See above for address) TERMINATED: 09/23/2016 PRO HAC VICE
Ben Wizner (See above for address) TERMINATED: 10/04/2013 PRO HAC VICE

Plaintiff
Steven William Washburn TERMINATED: 04/18/2016 also known as Steven Washburn TERMINATED: 04/18/2016

Catherine A. Wagner (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Christopher M. Egleson (See above for address) TERMINATED: 05/05/2015 PRO HAC VICE
Jennifer Pasquarella (See above for address) TERMINATED: 08/10/2015 PRO HAC VICE
Julia Harumi Mass (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
Justin H. Bell (See above for address) TERMINATED: 08/25/2014 PRO HAC VICE
Kevin Diaz (See above for address) TERMINATED: 08/07/2014
Laura Schauer Ives (See above for address) TERMINATED: 06/24/2014 PRO HAC VICE
Mitchell P. Hurley (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Nusrat Jahan Choudhury (See above for address) TERMINATED: 01/09/2014
Reem Salahi (See above for address) TERMINATED: 05/02/2016 PRO HAC VICE
represented by Hina Shamsi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steven M. Wilker (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alan L. Schlosser (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Alexandra F. Smith (See above for address) TERMINATED: 09/23/2016 PRO HAC VICE
Ben Wizner (See above for address) TERMINATED: 10/04/2013 PRO HAC VICE
Catherine A. Wagner (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Christopher M. Egleson (See above for address) TERMINATED: 05/05/2015 PRO HAC VICE
Jennifer Pasquarella (See above for address) TERMINATED: 08/10/2015 PRO HAC VICE
Julia Harumi Mass (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Justin H. Bell (See above for address) TERMINATED: 08/25/2014 PRO HAC VICE
Kevin Diaz (See above for address) TERMINATED: 08/07/2014
Laura Schauer Ives (See above for address) TERMINATED: 06/24/2014 PRO HAC VICE
Mitchell P. Hurley (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Nusrat Jahan Choudhury (See above for address) TERMINATED: 01/09/2014

Plaintiff Nagib Ali Ghaleb

Reem Salahi (See above for address) TERMINATED: 05/02/2016 PRO HAC VICE
represented by Catherine A. Wagner (See above for address) TERMINATED: 08/07/2017 LEAD ATTORNEY PRO HAC VICE
Hina Shamsi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steven M. Wilker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alan L. Schlosser (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Alexandra F. Smith (See above for address) TERMINATED: 09/23/2016 PRO HAC VICE
Ben Wizner (See above for address) TERMINATED: 10/04/2013 PRO HAC VICE
Christopher M. Egleson (See above for address) TERMINATED: 05/05/2015 PRO HAC VICE
Jennifer Pasquarella (See above for address) TERMINATED: 08/10/2015 PRO HAC VICE
Julia Harumi Mass (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE

Plaintiff
Samir Mohamed Ahmed Mohamed TERMINATED: 01/11/2013

ATTORNEY TO BE NOTICED
Justin H. Bell (See above for address) TERMINATED: 08/25/2014 PRO HAC VICE
Kevin Diaz (See above for address) TERMINATED: 08/07/2014
Laura Schauer Ives (See above for address) TERMINATED: 06/24/2014 PRO HAC VICE
Mitchell P. Hurley (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Nusrat Jahan Choudhury (See above for address) TERMINATED: 01/09/2014
Reem Salahi (See above for address) TERMINATED: 05/02/2016 PRO HAC VICE
represented by Hina Shamsi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steven M. Wilker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alan L. Schlosser (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Ben Wizner (See above for address) TERMINATED: 10/04/2013 PRO HAC VICE
Christopher M. Egleson (See above for address) TERMINATED: 05/05/2015 PRO HAC VICE
Jennifer Pasquarella (See above for address)

Plaintiff Abdullatif Muthanna

TERMINATED: 08/10/2015 PRO HAC VICE
Julia Harumi Mass (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Justin H. Bell (See above for address) TERMINATED: 08/25/2014 PRO HAC VICE
Kevin Diaz (See above for address) TERMINATED: 08/07/2014
Laura Schauer Ives (See above for address) TERMINATED: 06/24/2014 PRO HAC VICE
Mitchell P. Hurley (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Nusrat Jahan Choudhury (See above for address) TERMINATED: 01/09/2014
Reem Salahi (See above for address) TERMINATED: 05/02/2016 PRO HAC VICE
represented by Hina Shamsi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steven M. Wilker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alan L. Schlosser (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Saleh A. Omar TERMINATED: 01/11/2013

Alexandra F. Smith (See above for address) TERMINATED: 09/23/2016 PRO HAC VICE
Ben Wizner (See above for address) TERMINATED: 10/04/2013 PRO HAC VICE
Catherine A. Wagner (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Christopher M. Egleson (See above for address) TERMINATED: 05/05/2015 PRO HAC VICE
Jennifer Pasquarella (See above for address) TERMINATED: 08/10/2015 PRO HAC VICE
Julia Harumi Mass (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Justin H. Bell (See above for address) TERMINATED: 08/25/2014 PRO HAC VICE
Kevin Diaz (See above for address) TERMINATED: 08/07/2014
Laura Schauer Ives (See above for address) TERMINATED: 06/24/2014 PRO HAC VICE
Mitchell P. Hurley (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Nusrat Jahan Choudhury (See above for address) TERMINATED: 01/09/2014
Reem Salahi (See above for address) TERMINATED: 05/02/2016 PRO HAC VICE
represented by Hina Shamsi (See above for address) LEAD ATTORNEY PRO HAC VICE

ATTORNEY TO BE NOTICED
Steven M. Wilker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alan L. Schlosser (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Ben Wizner (See above for address) TERMINATED: 10/04/2013 PRO HAC VICE
Christopher M. Egleson (See above for address) TERMINATED: 05/05/2015 PRO HAC VICE
Jennifer Pasquarella (See above for address) TERMINATED: 08/10/2015 PRO HAC VICE
Julia Harumi Mass (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Justin H. Bell (See above for address) TERMINATED: 08/25/2014 PRO HAC VICE
Kevin Diaz (See above for address) TERMINATED: 08/07/2014
Laura Schauer Ives (See above for address) TERMINATED: 06/24/2014 PRO HAC VICE
Mitchell P. Hurley (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Nusrat Jahan Choudhury (See above for address) TERMINATED: 01/09/2014
Reem Salahi (See above for address) TERMINATED: 05/02/2016 PRO HAC VICE

Plaintiff
Adama Bah TERMINATED: 02/04/2011

represented by Steven M. Wilker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alan L. Schlosser (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Ben Wizner (See above for address) TERMINATED: 10/04/2013 PRO HAC VICE
Christopher M. Egleson (See above for address) TERMINATED: 05/05/2015 PRO HAC VICE
Jennifer Pasquarella (See above for address) TERMINATED: 08/10/2015 PRO HAC VICE
Julia Harumi Mass (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Justin H. Bell (See above for address) TERMINATED: 08/25/2014 PRO HAC VICE
Kevin Diaz (See above for address) TERMINATED: 08/07/2014
Laura Schauer Ives (See above for address) TERMINATED: 06/24/2014 PRO HAC VICE
Mitchell P. Hurley (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Nusrat Jahan Choudhury (See above for address) TERMINATED: 01/09/2014
Reem Salahi (See above for address) TERMINATED: 05/02/2016 PRO HAC VICE

Plaintiff
Halime Sat TERMINATED: 02/04/2011

represented by Steven M. Wilker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alan L. Schlosser (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Ben Wizner (See above for address) TERMINATED: 10/04/2013 PRO HAC VICE
Christopher M. Egleson (See above for address) TERMINATED: 05/05/2015 PRO HAC VICE
Jennifer Pasquarella (See above for address) TERMINATED: 08/10/2015 PRO HAC VICE
Julia Harumi Mass (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Justin H. Bell (See above for address) TERMINATED: 08/25/2014 PRO HAC VICE
Kevin Diaz (See above for address) TERMINATED: 08/07/2014
Laura Schauer Ives (See above for address) TERMINATED: 06/24/2014 PRO HAC VICE
Mitchell P. Hurley (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Nusrat Jahan Choudhury (See above for address) TERMINATED: 01/09/2014
Reem Salahi (See above for address) TERMINATED: 05/02/2016 PRO HAC VICE

Plaintiff Faisal Nabin Kashem

represented by Hina Shamsi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steven M. Wilker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alan L. Schlosser (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Alexandra F. Smith (See above for address) TERMINATED: 09/23/2016 PRO HAC VICE
Ben Wizner (See above for address) TERMINATED: 10/04/2013 PRO HAC VICE
Catherine A. Wagner (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Christopher M. Egleson (See above for address) TERMINATED: 05/05/2015 PRO HAC VICE
Jennifer Pasquarella (See above for address) TERMINATED: 08/10/2015 PRO HAC VICE
Julia Harumi Mass (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Justin H. Bell (See above for address) TERMINATED: 08/25/2014 PRO HAC VICE
Kevin Diaz

Plaintiff Elias Mustafa Mohamed

(See above for address) TERMINATED: 08/07/2014
Laura Schauer Ives (See above for address) TERMINATED: 06/24/2014 PRO HAC VICE
Nusrat Jahan Choudhury (See above for address) TERMINATED: 01/09/2014
represented by Hina Shamsi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steven M. Wilker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alan L. Schlosser (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Alexandra F. Smith (See above for address) TERMINATED: 09/23/2016 PRO HAC VICE
Ben Wizner (See above for address) TERMINATED: 10/04/2013 PRO HAC VICE
Catherine A. Wagner (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Christopher M. Egleson (See above for address) TERMINATED: 05/05/2015 PRO HAC VICE
Jennifer Pasquarella (See above for address) TERMINATED: 08/10/2015 PRO HAC VICE

Plaintiff
Abdul Hakeim Thabet Ahmed TERMINATED: 01/11/2013

Julia Harumi Mass (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Justin H. Bell (See above for address) TERMINATED: 08/25/2014 PRO HAC VICE
Kevin Diaz (See above for address) TERMINATED: 08/07/2014
Laura Schauer Ives (See above for address) TERMINATED: 06/24/2014 PRO HAC VICE
Nusrat Jahan Choudhury (See above for address) TERMINATED: 01/09/2014
represented by Hina Shamsi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steven M. Wilker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alan L. Schlosser (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Ben Wizner (See above for address) TERMINATED: 10/04/2013 PRO HAC VICE
Christopher M. Egleson (See above for address) TERMINATED: 05/05/2015 PRO HAC VICE
Jennifer Pasquarella (See above for address) TERMINATED: 08/10/2015 PRO HAC VICE
Julia Harumi Mass (See above for address) TERMINATED: 08/07/2017

Plaintiff Ibraheim Y. Mashal

PRO HAC VICE
Justin H. Bell (See above for address) TERMINATED: 08/25/2014 PRO HAC VICE
Kevin Diaz (See above for address) TERMINATED: 08/07/2014
Laura Schauer Ives (See above for address) TERMINATED: 06/24/2014 PRO HAC VICE
Nusrat Jahan Choudhury (See above for address) TERMINATED: 01/09/2014
represented by Hina Shamsi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steven M. Wilker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alan L. Schlosser (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Alexandra F. Smith (See above for address) TERMINATED: 09/23/2016 PRO HAC VICE
Ben Wizner (See above for address) TERMINATED: 10/04/2013 PRO HAC VICE
Catherine A. Wagner (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Christopher M. Egleson

Plaintiff Salah Ali Ahmed

(See above for address) TERMINATED: 05/05/2015 PRO HAC VICE
Jennifer Pasquarella (See above for address) TERMINATED: 08/10/2015 PRO HAC VICE
Julia Harumi Mass (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Justin H. Bell (See above for address) TERMINATED: 08/25/2014 PRO HAC VICE
Kevin Diaz (See above for address) TERMINATED: 08/07/2014
Laura Schauer Ives (See above for address) TERMINATED: 06/24/2014 PRO HAC VICE
Nusrat Jahan Choudhury (See above for address) TERMINATED: 01/09/2014
represented by Catherine A. Wagner (See above for address) TERMINATED: 08/07/2017 LEAD ATTORNEY PRO HAC VICE
Hina Shamsi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steven M. Wilker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alan L. Schlosser (See above for address) TERMINATED: 08/07/2017

Plaintiff Amir Meshal

PRO HAC VICE
Alexandra F. Smith (See above for address) TERMINATED: 09/23/2016 PRO HAC VICE
Ben Wizner (See above for address) TERMINATED: 10/04/2013 PRO HAC VICE
Christopher M. Egleson (See above for address) TERMINATED: 05/05/2015 PRO HAC VICE
Jennifer Pasquarella (See above for address) TERMINATED: 08/10/2015 PRO HAC VICE
Julia Harumi Mass (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Justin H. Bell (See above for address) TERMINATED: 08/25/2014 PRO HAC VICE
Kevin Diaz (See above for address) TERMINATED: 08/07/2014
Laura Schauer Ives (See above for address) TERMINATED: 06/24/2014 PRO HAC VICE
Nusrat Jahan Choudhury (See above for address) TERMINATED: 01/09/2014
represented by Hina Shamsi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steven M. Wilker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Arulanantham

Plaintiff Stephen Durga Persaud

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alan L. Schlosser (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
Alexandra F. Smith (See above for address) TERMINATED: 09/23/2016 PRO HAC VICE
Ben Wizner (See above for address) TERMINATED: 10/04/2013 PRO HAC VICE
Catherine A. Wagner (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Christopher M. Egleson (See above for address) TERMINATED: 05/05/2015 PRO HAC VICE
Jennifer Pasquarella (See above for address) TERMINATED: 08/10/2015 PRO HAC VICE
Julia Harumi Mass (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
Justin H. Bell (See above for address) TERMINATED: 08/25/2014 PRO HAC VICE
Kevin Diaz (See above for address) TERMINATED: 08/07/2014
Laura Schauer Ives (See above for address) TERMINATED: 06/24/2014 PRO HAC VICE
Nusrat Jahan Choudhury (See above for address) TERMINATED: 01/09/2014
represented by Hina Shamsi (See above for address) LEAD ATTORNEY PRO HAC VICE

ATTORNEY TO BE NOTICED
Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steven M. Wilker (See above for address) TERMINATED: 12/19/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alan L. Schlosser (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Alexandra F. Smith (See above for address) TERMINATED: 09/23/2016 PRO HAC VICE
Ben Wizner (See above for address) TERMINATED: 10/04/2013 PRO HAC VICE
Christopher M. Egleson (See above for address) TERMINATED: 05/05/2015 PRO HAC VICE
Jennifer Pasquarella (See above for address) TERMINATED: 08/10/2015 PRO HAC VICE
Julia Harumi Mass (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Justin H. Bell (See above for address) TERMINATED: 08/25/2014 PRO HAC VICE
Justine Fischer Attorney At Law 710 S.W. Madison Suite 400 Portland, OR 97205 503−222−4326 Fax: 503−222−6567 Email: jfattyor@aol.com TERMINATED: 12/18/2015
Kevin Diaz

Plaintiff Mashaal Rana

(See above for address) TERMINATED: 08/07/2014
Laura Schauer Ives (See above for address) TERMINATED: 06/24/2014 PRO HAC VICE
Nusrat Jahan Choudhury (See above for address) TERMINATED: 01/09/2014
William J. Genego Law Office of William Genego 2115 Main Street Santa Monica, CA 90405 310−399−3259 Fax: 310−392−9029 Email: bill@genegolaw.com PRO HAC VICE
Joel P. Leonard Elliott, Ostrander & Preston, P.C. Union Bank of California Tower 707 SW Washington Street, Suite 1500 Portland, OR 97205−3532 503−224−7112 Fax: 503−224−7819 Email: joel@eoplaw.com ATTORNEY TO BE NOTICED
represented by Hina Shamsi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steven M. Wilker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Alan L. Schlosser (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Alexandra F. Smith (See above for address) TERMINATED: 09/23/2016 PRO HAC VICE

V.
Defendant
United States Department of Justice Eric H. Holder, Jr., Attorney General

Catherine A. Wagner (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Christopher M. Egleson (See above for address) TERMINATED: 05/05/2015 PRO HAC VICE
Jennifer Pasquarella (See above for address) TERMINATED: 08/10/2015 PRO HAC VICE
Julia Harumi Mass (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Justin H. Bell (See above for address) TERMINATED: 08/25/2014 PRO HAC VICE
Kevin Diaz (See above for address) TERMINATED: 08/07/2014
Laura Schauer Ives (See above for address) TERMINATED: 06/24/2014 PRO HAC VICE
Mitchell P. Hurley (See above for address) TERMINATED: 08/07/2017 PRO HAC VICE
Reem Salahi (See above for address) TERMINATED: 05/02/2016 PRO HAC VICE
represented by Adam D. Kirschner Department of Justice Civil Division, Federal Programs 20 Massachusetts Ave, N.W. Room 7126 Washington, DC 20530 202−353−9265 Fax: 202−616−8470 Email: adam.kirschner@usdoj.gov ATTORNEY TO BE NOTICED
Amy Elizabeth Powell US Department of Justice Civil Division 20 Massachusettes Ave., NW Suite 5377 Washington, DC 20010

202−514−9836 Fax: 202−616−8202 Email: amy.powell@usdoj.gov ATTORNEY TO BE NOTICED
Brigham J. Bowen US Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 (202) 514−6289 Fax: (202) 616−8470 Email: brigham.bowen@usdoj.gov ATTORNEY TO BE NOTICED
Diane Kelleher Department of Justice Civil Division Federal Programs P.O. Box 884 Washington, DC 20044 202−514−4775 Fax: 202−616−8470 Email: Diane.Kelleher@usdoj.gov TERMINATED: 11/15/2013
James Cox , Jr. U.S. Attorney's Office District of Oregon 1000 SW Third Ave. Suite 600 Portland, OR 97204 503−727−1026 Fax: 503−727−1117 Email: caseview.ecf@usdoj.gov TERMINATED: 01/24/2019
Lily S. Farel U.S. Department of Justice Federal Programs 20 Massachusetts Ave NW Washington, DC 2001 (919) 619−0260 Fax: (202) 616−8470 Email: lily.farel@usdoj.gov TERMINATED: 04/30/2014
Samuel M. Singer Department of Justice Civil Division Federal Programs Branch P.O. Box 883 Washington, DC 20044 202−616−8014 Fax: 202−616−8470 Email: samuel.m.singer@usdoj.gov
Scott A. Risner U.S. Deptartment of Justice Civil Division 20 Massachusetts Avenue, NW Washington, DC 20530 202−514−2395 Fax: 202−616−8470 Email: scott.risner@usdoj.gov

Defendant Federal Bureau of Investigation Robert S. Mueller, III, Director
Defendant Terrorist Screening Center Timothy J. Healy, Director

TERMINATED: 11/15/2013
Alexandra F. Smith (See above for address) TERMINATED: 09/23/2016 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Adam D. Kirschner (See above for address) ATTORNEY TO BE NOTICED
Amy Elizabeth Powell (See above for address) ATTORNEY TO BE NOTICED
Brigham J. Bowen (See above for address) ATTORNEY TO BE NOTICED
Diane Kelleher (See above for address) TERMINATED: 11/15/2013
James Cox , Jr. (See above for address) TERMINATED: 01/24/2019 ATTORNEY TO BE NOTICED
Lily S. Farel (See above for address) TERMINATED: 04/30/2014
Samuel M. Singer (See above for address)
Scott A. Risner (See above for address) TERMINATED: 11/15/2013
Alexandra F. Smith (See above for address) TERMINATED: 09/23/2016 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Adam D. Kirschner (See above for address) ATTORNEY TO BE NOTICED
Amy Elizabeth Powell (See above for address) ATTORNEY TO BE NOTICED
Brigham J. Bowen (See above for address) ATTORNEY TO BE NOTICED
Diane Kelleher (See above for address) TERMINATED: 11/15/2013

Amicus The Constitution Project

James Cox , Jr. (See above for address) TERMINATED: 01/24/2019 ATTORNEY TO BE NOTICED
Lily S. Farel (See above for address) TERMINATED: 04/30/2014
Samuel M. Singer (See above for address)
Scott A. Risner (See above for address) TERMINATED: 11/15/2013
Alexandra F. Smith (See above for address) TERMINATED: 09/23/2016 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Devin N. Robinson Law Offices of Devin Robinson, P.C. 1706 NW Glisan Street Suite 5 Portland, OR 97209 503−228−7020 Fax: 503−334−2303 Email: Devin@nwtriallaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rita M. Siemion 637 Kenyon St. NW Washington, DC 20010 703−655−1467 Email: ritasiemion@gmail.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Alexandra F. Smith (See above for address) TERMINATED: 09/23/2016 PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 06/30/2010
06/30/2010

# Docket Text
1 Complaint. Filing Fee in amount of $350 collected. Receipt No. 34302. Summons issued as to Eric H. Holder, Jr.; Robert S. Mueller, III; and Timothy J. Healy.Filed by Adama Bah, Halime Sat, Raymond Earl Knaeble, IV, Saleh A. Omar, Mohamed Sheikh Abdirahm Kariye, Ayman Latif, Steven Washburn, Nagib Ali Ghaleb, Samir Mohamed Ahmed Mohamed, Abdullatif Muthanna against Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Attachments: # 1 Civil Cover Sheet) (eo) (Additional attachment(s) added on 5/5/2014: # 2 summons) (dnt). (Entered: 06/30/2010)
2 Discovery and Pretrial Scheduling Order and Notice of Case Assignment to Judge Anna J. Brown. Discovery is to be completed by 10/28/2010. Joint Alternate Dispute Resolution Report is due by 11/29/2010. Pretrial Order is due by 11/29/2010. Ordered

07/09/2010 07/09/2010 07/09/2010 07/15/2010
07/15/2010
07/15/2010
07/15/2010
07/15/2010 07/15/2010

by Judge Anna J. Brown. (eo) (Entered: 06/30/2010)
3 Affidavit of Service upon Terrorist Screening Center served on 7/7/2010 Filed by All Plaintiffs. (Wilker, Steven) (Entered: 07/09/2010)
4 Affidavit of Service upon United States Department of Justice served on 7/7/2010 Filed by All Plaintiffs. (Wilker, Steven) (Entered: 07/09/2010)
5 Affidavit of Service upon Federal Bureau of Investigation served on 7/7/2010 Filed by All Plaintiffs. (Wilker, Steven) (Entered: 07/09/2010)
6 Order − Granting Application for Special Admission Pro Hac Vice of Ahilan Arulanantham for Adama Bah,Ahilan Arulanantham for Nagib Ali Ghaleb,Ahilan Arulanantham for Mohamed Sheikh Abdirahm Kariye,Ahilan Arulanantham for Raymond Earl Knaeble, IV,Ahilan Arulanantham for Ayman Latif,Ahilan Arulanantham for Samir Mohamed Ahmed Mohamed,Ahilan Arulanantham for Abdullatif Muthanna,Ahilan Arulanantham for Saleh A. Omar,Ahilan Arulanantham for Halime Sat,Ahilan Arulanantham for Steven Washburn. Application Fee in amount of $100 collected. Receipt No. 34535 issued. Signed on 7/14/2010 by Judge Anna J. Brown. (ecp) (Entered: 07/15/2010)
7 Order − Granting Application for Special Admission Pro Hac Vice of Nusrat Jahan Choudhury for Adama Bah,Nusrat Jahan Choudhury for Nagib Ali Ghaleb,Nusrat Jahan Choudhury for Mohamed Sheikh Abdirahm Kariye,Nusrat Jahan Choudhury for Raymond Earl Knaeble, IV,Nusrat Jahan Choudhury for Ayman Latif,Nusrat Jahan Choudhury for Samir Mohamed Ahmed Mohamed,Nusrat Jahan Choudhury for Abdullatif Muthanna,Nusrat Jahan Choudhury for Saleh A. Omar,Nusrat Jahan Choudhury for Halime Sat,Nusrat Jahan Choudhury for Steven Washburn. Application Fee in amount of $100 collected. Receipt No. 34540 issued. Signed on 7/14/2010 by Judge Anna J. Brown. (ecp) (Entered: 07/15/2010)
8 Order −Granting Application for Special Admission Pro Hac Vice of Julia Harumi Mass for Adama Bah,Julia Harumi Mass for Nagib Ali Ghaleb,Julia Harumi Mass for Mohamed Sheikh Abdirahm Kariye,Julia Harumi Mass for Raymond Earl Knaeble, IV,Julia Harumi Mass for Ayman Latif,Julia Harumi Mass for Samir Mohamed Ahmed Mohamed,Julia Harumi Mass for Abdullatif Muthanna,Julia Harumi Mass for Saleh A. Omar,Julia Harumi Mass for Halime Sat,Julia Harumi Mass for Steven Washburn. Application Fee in amount of $100 collected. Receipt No. 34529 issued. Signed on 7/14/2010 by Judge Anna J. Brown. (ecp) (Entered: 07/15/2010)
9 Order −Granting Application for Special Admission Pro Hac Vice of Jennifer Pasquarella for Adama Bah,Jennifer Pasquarella for Nagib Ali Ghaleb,Jennifer Pasquarella for Mohamed Sheikh Abdirahm Kariye,Jennifer Pasquarella for Raymond Earl Knaeble, IV,Jennifer Pasquarella for Ayman Latif,Jennifer Pasquarella for Samir Mohamed Ahmed Mohamed,Jennifer Pasquarella for Abdullatif Muthanna,Jennifer Pasquarella for Saleh A. Omar,Jennifer Pasquarella for Halime Sat,Jennifer Pasquarella for Steven Washburn. Application Fee in amount of $100 collected. Receipt No. 34534 issued. Signed on 7/14/2010 by Judge Anna J. Brown. (ecp) (Entered: 07/15/2010)
10 Order − Granting Application for Special Admission Pro Hac Vice of Reem Salahi for Adama Bah,Reem Salahi for Nagib Ali Ghaleb,Reem Salahi for Mohamed Sheikh Abdirahm Kariye,Reem Salahi for Raymond Earl Knaeble, IV,Reem Salahi for Ayman Latif,Reem Salahi for Samir Mohamed Ahmed Mohamed,Reem Salahi for Abdullatif Muthanna,Reem Salahi for Saleh A. Omar,Reem Salahi for Halime Sat,Reem Salahi for Steven Washburn. Application Fee in amount of $100 collected. Receipt No. 34533 issued. Signed on 7/14/2010 by Judge Anna J. Brown. (ecp) (Entered: 07/15/2010)
11 Order − Granting Application for Special Admission Pro Hac Vice of Laura Schauer Ives for Adama Bah,Laura Schauer Ives for Nagib Ali Ghaleb,Laura Schauer Ives for Mohamed Sheikh Abdirahm Kariye,Laura Schauer Ives for Raymond Earl Knaeble, IV,Laura Schauer Ives for Ayman Latif,Laura Schauer Ives for Samir Mohamed Ahmed Mohamed,Laura Schauer Ives for Abdullatif Muthanna,Laura Schauer Ives for Saleh A. Omar,Laura Schauer Ives for Halime Sat,Laura Schauer Ives for Steven Washburn. Application Fee in amount of $100 collected. Receipt No. 34537 issued. Signed on 7/14/2010 by Judge Anna J. Brown. (ecp) (Entered: 07/15/2010)

07/15/2010
07/15/2010
08/03/2010 08/06/2010 08/10/2010 08/12/2010 08/16/2010 08/16/2010
08/16/2010 08/16/2010 08/18/2010
08/18/2010 08/25/2010

12 Order − Granting Application for Special Admission Pro Hac Vice of Alan L. Schlosser for Adama Bah,Alan L. Schlosser for Nagib Ali Ghaleb,Alan L. Schlosser for Mohamed Sheikh Abdirahm Kariye,Alan L. Schlosser for Raymond Earl Knaeble, IV,Alan L. Schlosser for Ayman Latif,Alan L. Schlosser for Samir Mohamed Ahmed Mohamed,Alan L. Schlosser for Abdullatif Muthanna,Alan L. Schlosser for Saleh A. Omar,Alan L. Schlosser for Halime Sat,Alan L. Schlosser for Steven Washburn. Application Fee in amount of $100 collected. Receipt No. 34531 issued. Signed on 7/14/2010 by Judge Anna J. Brown. (ecp) (Entered: 07/15/2010)
13 Order −Granting Application for Special Admission Pro Hac Vice of Ben Wizner for Adama Bah,Ben Wizner for Nagib Ali Ghaleb,Ben Wizner for Mohamed Sheikh Abdirahm Kariye,Ben Wizner for Raymond Earl Knaeble, IV,Ben Wizner for Ayman Latif,Ben Wizner for Samir Mohamed Ahmed Mohamed,Ben Wizner for Abdullatif Muthanna,Ben Wizner for Saleh A. Omar,Ben Wizner for Halime Sat,Ben Wizner for Steven Washburn. Application Fee in amount of $100 collected. Receipt No. 34539 issued. Signed on 7/14/2010 by Judge Anna J. Brown. (ecp) (Entered: 07/15/2010)
14 Notice of Appearance of Diane Kelleher appearing on behalf of All Defendants Filed by on behalf of All Defendants (Kelleher, Diane) (Entered: 08/03/2010)
15 First Amended Complaint.Filed by Adama Bah, Halime Sat, Raymond Earl Knaeble, IV, Saleh A. Omar, Mohamed Sheikh Abdirahm Kariye, Ayman Latif, Steven Washburn, Nagib Ali Ghaleb, Samir Mohamed Ahmed Mohamed, Abdullatif Muthanna against All Defendants. (Wizner, Ben) (Entered: 08/06/2010)
16 Notice of Appearance of Amy Elizabeth Powell appearing on behalf of All Defendants Filed by on behalf of All Defendants (Powell, Amy) (Entered: 08/10/2010)
17 Joint Motion for Extension of Discovery & PTO Deadlines and Request for Entry of a Scheduling Order. Filed by All Parties. (Attachments: # 1 Proposed Order) (Kelleher, Diane) (Entered: 08/12/2010)
18 Motion for Preliminary Injunction. Oral Argument requested. Filed by All Plaintiffs. (Wizner, Ben) (Entered: 08/16/2010)
19 Memorandum in Support. Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 18 .) (Attachments: # 1 Declaration of Abdul Hakeim Ahmed Thabet, # 2 Declaration of Abdullatif Muthanna, # 3 Declaration of Ayman Latif, # 4 Declaration of Ben Wizner, # 5 Declaration of Elias Mustafa Mohamed, # 6 Declaration of Faisal Kashem, # 7 Declaration of Raymond Earl Knaeble IV, # 8 Declaration of Saleh A. Omar, # 9 Declaration of Samir Mohamed Ahmed Mohamed, # 10 Declaration of Steven William Washburn) (Wizner, Ben) (Entered: 08/16/2010)
20 Amended Motion for Preliminary Injunction. Oral Argument requested. Filed by All Plaintiffs. (Choudhury, Nusrat) (Entered: 08/16/2010)
21 Corrected Memorandum in Support of Preliminary Injunction. Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 18 , Motion for Preliminary Injunction 20 .) (Choudhury, Nusrat) (Entered: 08/16/2010)
22 Scheduling Order by Judge Anna J. Brown. A Telephonic Conference on the Joint Motion (#17) for Extension of Discovery & PTO Deadlines and Request for Entryof a Scheduling Order is SET for 8/25/2010 at 01:00 PM before Judge Anna J. Brown. Counsel to e−mail the courtroom deputy with their phone numbers. The Court will initiate the call. (bb) (Entered: 08/18/2010)
23 Notice of Appearance of James E. Cox, Jr appearing on behalf of All Defendants Filed by on behalf of All Defendants (Cox, James) (Entered: 08/18/2010)
24 MINUTES of Proceedings: Scheduling Conference. Joint Status Report is due 9/23/2010. Response to Amended Motion for Preliminary Injunction due 9/23/2010; Reply due 10/7/2010. Oral Argument is set for 10/21/2010 at 02:00 PM before Judge Anna J. Brown. Ben Wizner, Kevin Diaz, Steven Wilker present as counsel for plaintiff(s). Amy Powell, Diane Kelleher, Jennifer Daskal present as counsel for defendant(s). Court Reporter: Amanda LeGore. Judge Anna J. Brown presiding. (bb) (Entered: 08/30/2010)

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25 Unopposed Motion for Extension of Time to File a Response/Reply to Amended Motion for Preliminary Injunction 20 . Filed by All Defendants. (Attachments: # 1 Proposed Order) (Kelleher, Diane) (Entered: 09/21/2010)
26 ORDER by Judge Anna J. Brown. The Court has completed its consideration of Defendants' Unopposed Motion for an Extension of Time 25 to file their Opposition to Plaintiffs' Motion for Preliminary Injunction. The Court GRANTS the Motion as follows: Defendant's Opposition to Plaintiffs' Motion for Preliminary Injunction is now due October 14, 2010; Plaintiff's Reply is now due October 28, 2010; and the Court will set a telephone conference with counsel thereafter to schedule any needed hearing on Plaintiff's Motion. The Court directs the parties to submit an updated Joint Status Report on October 28, 2010. IT IS SO ORDERED. (bb) (Entered: 09/23/2010)
27 Minute Order by Judge Anna J. Brown. Oral Argument on the Motion for Preliminary Injunction set for October 21, 2010 is STRICKEN. (bb) (Entered: 09/23/2010)
28 Joint Status Report by All Defendants. Filed by All Defendants. (Powell, Amy) (Entered: 09/23/2010)
29 Minute Order by Judge Anna J. Brown. The Court has completed its review of the Parties' Joint Status Report 28 . Before the Court adopts a schedule for the filing of dispositive motions and before the parties file any dispositive motions, the Court concludes it is necessary for Plaintiffs to decide whether they will seek leave to amend their Complaint and the Court decides, after an appropriate response from Defendants, whether the proposed amendments will be permitted (so that any dispositive motions that are filed deal with all of the issues). Accordingly, Plaintiffs must file no later than October 15, 2010, any motion for leave to amend their Complaint after conferring with Defendants. If Plaintiffs determine before then that they are not going to seek to amend the Complaint, Plaintiffs shall notify the Court and Defendants' counsel, and the Court will then set the schedule for dispositive motions, including any cross−motions for summary judgment. If Plaintffs do file a motion for leave to amend, the Court will set the dispositive motion schedule after the status of Plaintiffs' pleadings are settled. IT IS SO ORDERED. (bb) (Entered: 09/28/2010)
30 Unopposed Motion for Extension of Time to File Opposition to Plaintiffs' Motion for a Prelimination Injunction. Filed by All Defendants. (Attachments: # 1 Proposed Document) (Kelleher, Diane) (Entered: 10/07/2010)
31 ORDER by Judge Anna J. Brown. Granting Defendants' Unopposed Motion 30 for Extension of Time to File Response to Amended Motion for Preliminary Injunction 20 . Response is due by 10/21/2010. Reply is due by 11/4/2010. Motion is taken under advisement as of 11/4/2010. Joint Status Report is due by 11/4/2010. (bb) (Entered: 10/08/2010)
32 Report : Plaintiffs' Notice of Intent Not to Seek Leave to Amend First Amended Complaint. Filed by All Plaintiffs. (Choudhury, Nusrat) (Entered: 10/15/2010)
33 Motion to Withdraw Plaintiffs' Motion for Preliminary Injunction 18 , Motion for Preliminary Injunction 20 . Filed by All Plaintiffs. (Choudhury, Nusrat) (Entered: 10/20/2010)
34 Joint Motion for a Scheduling Order. Filed by All Defendants. (Powell, Amy) (Entered: 10/25/2010)
35 ORDER by Judge Anna J. Brown. Granting Parties' Joint Motion 34 for a Scheduling Order. Government's Dispositive Motion due 11/17/2010; Plaintiff's separate response due 12/17/2010; Government's Reply due 1/11/2011. Plaintiff's separate cross−motion due 12/17/2010; Government's separate response due 1/11/2011; Plaintiff's separate reply due 1/25/2011. Oral Argument to be set at a later date. Remaining case management dates to be set when motions resolved. (bb) (Entered: 10/27/2010)
36 Joint Status Report. Filed by All Parties. (Choudhury, Nusrat) (Entered: 11/04/2010)
37 Unopposed Motion to File Excess Pages. Filed by All Defendants. (Powell, Amy) (Entered: 11/10/2010)

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38 Minute Order by Judge Anna J. Brown. The Court acknowledges Plaintiffs' Notice 33 of Withdrawal Without Prejudice of Plaintiffs' Motion for a Preliminary Injunction. Plaintiffs' Motion 18 for a Preliminary Injunction and Amended Motion 20 for a Preliminary Injunction are WITHDRAWN. (bb) (Entered: 11/15/2010)
39 ORDER by Judge Anna J. Brown. Granting Defendants' Unopposed Motion 37 to Exceed Page Limit in Memorandum in Support of Motion for Summary Judgment. Defendants may file a 60 page memorandum in support of their summary judgment motion. (bb) (Entered: 11/15/2010)
40 Unopposed Motion for Status Conference (Expedited Consideration Requested). Filed by All Plaintiffs. (Attachments: # 1 Attachment Declaration and Exhibit) (Choudhury, Nusrat) (Entered: 11/16/2010)
41 Joint Stipulation Statement of Stipulated Facts by All Defendants. Filed by All Defendants. (Powell, Amy) (Entered: 11/17/2010)
42 Notice of Lodging Ex Parte, In Camera Material Filed by All Defendants (Powell, Amy) (Entered: 11/17/2010)
43 Motion to Dismiss, Motion for Summary Judgment. Oral Argument requested. Filed by All Defendants. (Powell, Amy) (Entered: 11/17/2010)
44 Memorandum in Support. Filed by All Defendants. (Related document(s): Motion to Dismiss, Motion for Summary Judgment 43 .) (Attachments: # 1 Attachment Declaration of Christopher Piehota, # 2 Attachment Declaration of Mark Giuliano, # 3 Attachment Declaration of James Kennedy, # 4 Exhibit A to Kennedy Declaration, # 5 Exhibit B to Kennedy Declaration, # 6 Attachment Declaration of Kevin McAleenan, # 7 Attachment Declaration of Sharon Raya) (Powell, Amy) (Entered: 11/17/2010)
45 Concise Statement of Material Fact. Filed by All Defendants. (Related document(s): Motion to Dismiss, Motion for Summary Judgment 43 .) (Powell, Amy) (Entered: 11/17/2010)
46 Notice of Filing Substitute Copies of Declarations Submitted in Support of Motion for Summary Judgment Filed by All Defendants (Attachments: # 1 Declaration of Mark Giuliano (Cleaner Copy), # 2 Declaration of Sharon Raya (Cleaner Copy)) (Powell, Amy) (Entered: 11/23/2010)
47 Scheduling Order by Judge Anna J. Brown. A Telephonic Status Conference is SET for 11/29/2010 at 10:00 AM before Judge Anna J. Brown. Counsel to e−mail the courtroom deputy with their phone numbers. The Court will initiate the call. (bb) (Entered: 11/23/2010)
48 MINUTES of Proceedings: R16 Conference. The Court first will address Defendants' jurisdictional and dismissal challenges raised in their Motion to Dismiss and briefed at pages 15−20 of their supporting Memorandum (#44). Plaintiffs' opposition to this portion of Defendants' combined Motions (#43) is due no later than December 15, 2010. Defendants' reply is due no later than January 7, 2011. Oral Argument is set for 1/21/2011, at 1:30 p.m. No later than December 15, 2010, Plaintiffs shall file their Motion and separate supporting Memorandum challenging Defendants' support of their alternative Motion for Summary Judgment with material to which Plaintiffs do not have access. Defendants' opposition is due no later than January 7, 2011. No reply permitted. Oral Argument is SET for 01/21/2011, at 1:30 p.m. See attached. Ben Wizner, Kevin Diaz, Nusrat Choudhury, Steven Wilker present as counsel for plaintiff(s). Amy Powell present as counsel for defendant(s). Court Reporter: Amanda LeGore. Judge Anna J. Brown presiding. (bb) Modified on 11/30/2010 to correct dates from 2010 to 2011 (bb). (Entered: 11/29/2010)
49 Notice re Notice 42 of Filing Filed by All Defendants (Related document(s): Notice 42 .) (Kelleher, Diane) (Entered: 12/13/2010)
50 Memorandum in Opposition to Motion to Dismiss Motion for Summary Judgment 43 Oral Argument requested. Filed by All Plaintiffs. (Wizner, Ben) (Entered: 12/15/2010)
51 Motion to Strike or Compel Disclosure of Defendants' Ex Parte Submissions. Oral Argument requested. Filed by All Plaintiffs. (Choudhury, Nusrat) (Entered: 12/15/2010)

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52 Memorandum in Support. Filed by All Plaintiffs. (Related document(s): Motion to Strike 51 .) (Choudhury, Nusrat) (Entered: 12/15/2010)
53 Supplemental Memorandum in Support of Defendants' Motion to Dismiss (Reply Memorandum). Filed by All Defendants. (Related document(s): Motion to Dismiss, Motion for Summary Judgment 43 .) (Attachments: # 1 Exhibit) (Kelleher, Diane) (Entered: 01/07/2011)
54 Memorandum in Opposition to Motion to Strike or Compel Disclosure of Defendants' Ex Parte Submissions 51 . Filed by All Defendants. (Attachments: # 1 Exhibit A − Second Declaration of Christopher Piehota, # 2 Exhibit B − January 4, 20100 Letter to Wizner) (Powell, Amy) (Entered: 01/07/2011)
55 Motion for Leave to Appear Pro Hac Vice Mitchell P. Hurley. Filed by All Plaintiffs. (Wilker, Steven) (Entered: 01/14/2011)
56 Motion for Leave to Appear Pro Hac Vice Justin H. Bell. Filed by All Plaintiffs. (Wilker, Steven) (Entered: 01/14/2011)
57 Motion for Leave to Appear Pro Hac Vice Christopher M. Egleson. Filed by All Plaintiffs. (Wilker, Steven) (Entered: 01/14/2011)
58 Joint Notice re Motion to Strike 51 Agreement Regarding Consideration of Plaintiffs' Motion to Strike or to Compel Disclosure Filed by All Parties (Related document(s): Motion to Strike 51 .) (Attachments: # 1 Exhibit) (Choudhury, Nusrat) (Entered: 01/20/2011)
59 Order − Granting Application for Special Admission Pro Hac Vice of Mitchell P. Hurley for Adama Bah,Nagib Ali Ghaleb,Mohamed Sheikh Abdirahm Kariye,Raymond Earl Knaeble, IV, Ayman Latif, Samir Mohamed Ahmed Mohamed,Abdullatif Muthanna, Saleh A. Omar, Halime Sat, Steven Washburn. Application Fee in amount of $100 collected. Receipt No. 38154 issued. Signed on 1/20/2011 by Judge Anna J. Brown. (ecp) (Entered: 01/21/2011)
60 Order − Granting Application for Special Admission Pro Hac Vice of Justin H. Bell for Adama Bah, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye,Raymond Earl Knaeble, IV,Ayman Latif,Samir Mohamed Ahmed Mohamed, Abdullatif Muthanna, Saleh A. Omar, Halime Sat, and Steven Washburn. Application Fee in amount of $100 collected. Receipt No. 38155 issued. Signed on 1/20/2011 by Judge Anna J. Brown. (ecp) (Entered: 01/21/2011)
61 Order − Granting Application for Special Admission Pro Hac Vice of Christopher M. Egleson for Adama Bah, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye,Raymond Earl Knaeble, IV, Ayman Latif, Samir Mohamed Ahmed Mohamed,Abdullatif Muthanna,Saleh A. Omar, Halime Sat,and Steven Washburn. Application Fee in amount of $100 collected. Receipt No. 38153 issued. Signed on 1/20/2011 by Judge Anna J. Brown. (ecp) (Entered: 01/21/2011)
62 MINUTES of Proceedings: The Court heard oral argument on that portion of Defendants' Motion to Dismiss or for Summary Judgment (#43) that asserts the Court lacks subject matter jurisdiction over this action pursuant to 49 USC Section 46110. At the conclusion of the hearing and in lieu of ruling on the jurisdictional aspects of Defendants' Motion on the existing record, the Court granted Plaintiffs leave to file no later than February 4, 2011, a Second Amended Complaint that is a plain and concise statement of their intended claims pursuant to Fed. R. Civ. P. 8(a) and that sets forth the jurisdictional and elemental bases for such claims. Defendants may file no later than February 18, 2011, a final memorandum in support of the jurisdictional challenges raised in their Motion (#43). Plaintiffs may file no later than March 4, 2011, their final memorandum in opposition to dismissal for lack of subject matter jurisdiction. The Court will then take the jurisdictional challenge under advisement on March 4, 2011. In the meantime, the remainder of Defendants' Motion (#43) and Plaintiffs' Motion to Strike (#51) remain pending. Ben Wizner, Kevin Diaz, Nusrat Choudhury, Steven Wilker present as counsel for plaintiff(s). Amy Powell, Diane Kelleher present as counsel for defendant(s). Court Reporter: Amanda LeGore. Judge Anna J. Brown presiding. (bb) (Entered: 01/21/2011)
63 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Oral Argument held on January 21, 2011 before Judge Anna J. Brown, Court Reporter Amanda M. LeGore,

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telephone number 503−326−8184. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 2/10/2011. Redaction Request due 2/25/2011. Redacted Transcript Deadline set for 3/7/2011. Release of Transcript Restriction set for 5/5/2011. (LeGore, Amanda) (Entered: 01/31/2011)
64 Second Amended Complaint.Filed by Raymond Earl Knaeble, IV, Saleh A. Omar, Mohamed Sheikh Abdirahm Kariye, Ayman Latif, Nagib Ali Ghaleb, Samir Mohamed Ahmed Mohamed, Abdullatif Muthanna, Steven Washburn against All Defendants. (Wizner, Ben) (Entered: 02/04/2011)
65 Supplemental Reply by Defendants in Further Support to Motion to Dismiss Motion for Summary Judgment 43 . Filed by All Defendants. (Kelleher, Diane) (Entered: 02/18/2011)
66 Notice re Motion to Dismiss, Motion for Summary Judgment 43 of Withdrawal of Certain Arguments and Materials Filed by All Defendants (Related document(s): Motion to Dismiss, Motion for Summary Judgment 43 .) (Kelleher, Diane) (Entered: 02/24/2011)
67 Supplemental Memorandum in Opposition to Motion to Dismiss Motion for Summary Judgment 43 . Filed by Abdul Hakeim Thabet Ahmed, Salah Ali Ahmed, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Samir Mohamed Ahmed Mohamed, Abdullatif Muthanna, Saleh A. Omar, Stephen Durga Persaud, Steven William Washburn. (Wizner, Ben) (Entered: 03/04/2011)
68 Order by Judge Anna J. Brown. In light of Defendants' Notice (#66) of Withdrawal of Certain Arguments and Materials, the Court directs Classified Information Officer Scooter Slade to retrieve from the Court's custody all materials Defendants submitted ex parte and in camera. IT IS SO ORDERED. (bb) (Entered: 03/08/2011)
69 Order. The Court GRANTS Defendants' Motion 43 to Dismiss this action for failure to join an indispensable party and for lack of subject−matter jurisdiction. Signed on 05/03/2011 by Judge Anna J. Brown. See 16 page Opinion and Order for full text. (bb) (Entered: 05/03/2011)
70 Judgment. Based on the Court's Opinion and Order 69 issued May 3, 2011, the Court DISMISSES this matter. Signed on 05/05/2011 by Judge Anna J. Brown. See 2 page Judgment. (bb) (Entered: 05/05/2011)
71 Notice of Appeal to the 9th Circuit from Judgment 70 . Filed by Abdul Hakeim Thabet Ahmed, Salah Ali Ahmed, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Samir Mohamed Ahmed Mohamed, Abdullatif Muthanna, Saleh A. Omar, Stephen Durga Persaud, Steven William Washburn. (Wizner, Ben) (Entered: 05/12/2011)
72 Representation Statement re Notice of Appeal, 71 . Filed by Abdul Hakeim Thabet Ahmed, Salah Ali Ahmed, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Samir Mohamed Ahmed Mohamed, Abdullatif Muthanna, Saleh A. Omar, Stephen Durga Persaud, Steven William Washburn. (Wizner, Ben) (Entered: 05/12/2011)
USCA Case Number and Notice confirming Docketing Record on Appeal re Notice of Appeal, 71 Case Appealed to 9th Circuit Court of Appeals Case Number 11−35407 assigned. (sd) (Entered: 05/13/2011)
USCA Appeal Fees re Notice of Appeal, 71 : Received Fee in amount of $ 455. Receipt number 40492 issued. (msk) (Entered: 05/13/2011)
73 ORDER by Judge Ancer L. Haggerty: When due, the Administrative Record should be submitted in CD Format only. No paper copy is necessary. (sp) (Entered: 06/22/2011)

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74 Order for Administrative Correction of the Record pursuant to Fed. R. Civ. P. 60(a). A Clerical error has been discovered in the case record. The Clerk is directed to make the following administrative corrections to the record: Docket #73 was entered in the wrong case and should be disregarded by the parties. (sm) (Entered: 06/22/2011)
75 MANDATE of USCA for the 9th Circuit, USCA # 11−35407, re Notice of Appeal, 71 . The decision of the District Court is Reversed and Remanded. (Attachments: # 1 Appeal Opinion) (cp) (Entered: 11/28/2012)
76 The Mandate 75 having been filed, the Court directs the parties to submit a jointly proposed case management plan and schedule no later than December 10, 2012, after which the Court will convene a Rule 16 Conference. In the meantime, counsel shall also inform the Courtroom Deputy of their availability for the Rule 16 Conference on dates after December 10, 2012. (bb) (Entered: 11/29/2012)
77 Joint Status Report and Case Management Plan. Filed by All Parties. (Attachments: # 1 Proposed Order) (Choudhury, Nusrat) (Entered: 12/10/2012)
78 Order Granting Application for Special Admission Pro Hac Vice of Hina Shamsi for Abdul Hakeim Thabet Ahmed,Hina Shamsi for Salah Ali Ahmed,Hina Shamsi for Nagib Ali Ghaleb,Hina Shamsi for Mohamed Sheikh Abdirahm Kariye,Hina Shamsi for Faisal Nabin Kashem,Hina Shamsi for Raymond Earl Knaeble, IV,Hina Shamsi for Ayman Latif,Hina Shamsi for Ibraheim Y. Mashal,Hina Shamsi for Amir Meshal,Hina Shamsi for Elias Mustafa Mohamed,Hina Shamsi for Samir Mohamed Ahmed Mohamed,Hina Shamsi for Abdullatif Muthanna,Hina Shamsi for Saleh A. Omar,Hina Shamsi for Stephen Durga Persaud,Hina Shamsi for Steven William Washburn. Application Fee in amount of $100 collected. Receipt No. 49952 issued. Signed on 12/11/2012 by Judge Anna J. Brown. (ecp) (Entered: 12/13/2012)
79 Scheduling Order by Judge Anna J. Brown. A Scheduling Conference is SET for 12/19/2012 at 01:30 PM before Judge Anna J. Brown. Counsel may appear by telephone by e−mailing the courtroom deputy with their contact information. (bb) (Entered: 12/14/2012)
80 MINUTES of Proceedings: Scheduling Conference. Third Amended Complaint due 01/11/2013. Joint Statement of Agreed Facts due 02/03/2013. Defendants' Motion(s) against the Third Amended Complaint due 02/13/2013. Plaintiffs' Opposition and separately filed cross−motion are due 03/15/2013. Defendants' Reply and separately filed opposition are due 04/05/2013. Plaintiffs' Reply is due 04/19/2013. The Court will schedule Oral Argument on these motions in due course. Other case management issues will be addressed after resolution of these motions. See attached Order for full text. Hini Shamsi, Nusrat Choudhury, Steven Wilker, Kevin Diaz present as counsel for plaintiff(s). Diane Kelleher, Amy Powell, James Cox present as counsel for defendant(s). Court Reporter: Bridget Montero. Judge Anna J. Brown presiding. (bb) Modified on 12/20/2012 to correct typos (bb). (Entered: 12/19/2012)
81 Notice of Appearance of Scott A. Risner appearing on behalf of All Defendants Filed by on behalf of All Defendants (Risner, Scott) (Entered: 01/11/2013)
82 Notice of Appearance of Lily S. Farel appearing on behalf of All Defendants Filed by on behalf of All Defendants (Farel, Lily) (Entered: 01/11/2013)
83 Third Amended Complaint . Filed by Amir Meshal, Elias Mustafa Mohamed, Raymond Earl Knaeble, IV, Salah Ali Ahmed, Ayman Latif, Faisal Nabin Kashem, Nagib Ali Ghaleb, Stephen Durga Persaud, Ibraheim Y. Mashal, Mohamed Sheikh Abdirahm Kariye, Abdullatif Muthanna, Steven William Washburn against All Defendants. (Choudhury, Nusrat) (Entered: 01/11/2013)
84 Joint Stipulation (Joint Statement of Stipulated Facts) by Salah Ali Ahmed, Federal Bureau of Investigation, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Abdullatif Muthanna, Stephen Durga Persaud, Terrorist Screening Center, United States Department of Justice, Steven William Washburn. Filed by Salah Ali Ahmed, Federal Bureau of Investigation, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Abdullatif Muthanna, Stephen Durga Persaud, Terrorist Screening Center, United States Department of Justice, Steven William Washburn. (Choudhury, Nusrat)

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(Entered: 01/31/2013)
85 Motion for Partial Summary Judgment . Filed by All Defendants. (Attachments: # 1 Memorandum in Support, # 2 Declaration of Cindy A. Coppola, # 3 Attachment to Coppola Declaration) (Farel, Lily) (Entered: 02/13/2013)
86 Notice re Motion for Partial Summary Judgment 85 of Intent to Lodge Ex Parte In Camera Material Filed by All Defendants (Related document(s): Motion for Partial Summary Judgment 85 .) (Farel, Lily) (Entered: 02/13/2013)
87 Certificate of Compliance with LR 7−1(a). Filed by All Defendants. (Related document(s): Motion for Partial Summary Judgment 85 .) (Risner, Scott) (Entered: 02/19/2013)
88 Unopposed Motion for Extension of Time to File Plaintiffs' Cross−Motion for Partial Summary Judgment and memorandum in opposition to Defendants' Motion for Partial Summary Judgment. Filed by All Plaintiffs. (Attachments: # 1 Attachment) (Choudhury, Nusrat) (Entered: 03/08/2013)
89 ORDER by Judge Anna J. Brown. Granting Motion for Extension of Time 88 . Plaintiffs' Memorandum in Opposition to Defendants' Motion for Partial Summary Judgment and Plaintiffs' separately filed Cross−Motion for Partial Summary Judgment, and supporting submission are now due 03/22/2013. Defendants' Reply in support of their Motion for Partial Summary Judgment and separately filed Opposition to Plaintiffs' Cross−Motion for Partial Summary Judgment are due 4/12/2013. Plaintiffs' reply in support of their Cross−Motion for Summary Judgment is due 04/26/2013. Motion is taken under advisement as of 4/26/2013. (bb) (Entered: 03/11/2013)
90 Order by Judge Anna J. Brown. The Court has reviewed the Application for Special Admission − Pro Hac Vice of Rita M. Siemion who seeks to file as amicus curiae a brief on behalf of The Constitution Project. In the Application, Ms. Siemion explains why she presently does not carry professional liability insurance. Ms. Siemion does not explain, however, whether The Constitution Project consents to her representation without such insurance, a fact the Court finds important to resolving whether she should be admitted pro hac vice in this case. Accordingly, the Court holds this Application in abeyance pending a further submission by Ms. Siemion addressing this question. In addition, to the extent any party to this matter has any position on this Application, the party should make an appropriate filing to express the same no later than March 25, 2013. (bb) (Entered: 03/19/2013)
91 Cross Motion for Partial Summary Judgment . Oral Argument requested. Filed by Salah Ali Ahmed, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Samir Mohamed Ahmed Mohamed, Abdullatif Muthanna, Stephen Durga Persaud, Steven William Washburn. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Salah Ali Ahmed, # 3 Declaration of Nagib Ali Ghaleb, # 4 Declaration of Mohamed Sheikh Abdirahman Kariye, # 5 Declaration of Faisal Nabin Kashem, # 6 Declaration of Raymond Earl Knaeble IV, # 7 Declaration of Allah R. Rana, # 8 Declaration of Mashaal Rana, # 9 Declaration of Nauman Rana, # 10 Declaration of Ibraheim Mashal, # 11 Declaration of Amir Meshal, # 12 Declaration of Elias Mustafa Mohamed, # 13 Declaration of Stephen Persaud, # 14 Declaration of Steven William Washburn, # 15 Declaration of Nusrat J. Choudhury, # 16 Exhibit A to Choudhury Declaration, # 17 Exhibit B to Choudhury Declaration, # 18 Exhibit C to Choudhury Declaration, # 19 Exhibit D to Choudhury Declaration, # 20 Exhibit E to Choudhury Declaration, # 21 Exhibit F to Choudhury Declaration, # 22 Exhibit G to Choudhury Declaration, # 23 Exhibit H Choudhury Declaration, # 24 Exhibit I to Choudhury Declaration, # 25 Exhibit J to Choudhury Declaration, # 26 Exhibit K to Choudhury Declaration, # 27 Exhibit L to Choudhury Declaration) (Shamsi, Hina) (Entered: 03/22/2013)
92 Response in Opposition to Motion for Partial Summary Judgment 85 Oral Argument requested. Filed by Salah Ali Ahmed, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Abdullatif Muthanna, Stephen Durga Persaud, Steven William Washburn. (Attachments: # 1 Declaration of Salah Ali Ahmed, # 2 Declaration of Nagib Ali Ghaleb, # 3 Declaration of Mohamed Sheikh Abdirahman Kariye, # 4 Declaration of Faisal Nabin Kashem, # 5 Declaration of

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Raymond Earl Knaeble IV, # 6 Declaration of Allah R. Rana, # 7 Declaration of Mashaal Rana, # 8 Declaration of Nauman Rana, # 9 Declaration of Ibraheim Mashal, # 10 Declaration of Amir Meshal, # 11 Declaration of Elias Mustafa Mohamed, # 12 Declaration of Stephen Persaud, # 13 Declaration of Steven William Washburn, # 14 Declaration of Nusrat J. Choudhury, # 15 Exhibit A to Choudhury Declaration, # 16 Exhibit B to Choudhury Declaration, # 17 Exhibit C to Choudhury Declaration, # 18 Exhibit D to Choudhury Declaration, # 19 Exhibit E to Choudhury Declaration, # 20 Exhibit F to Choudhury Declaration, # 21 Exhibit G to Choudhury Declaration, # 22 Exhibit H to Choudhury Declaration, # 23 Exhibit I to Choudhury Declaration, # 24 Exhibit J to Choudhury Declaration, # 25 Exhibit K to Choudhury Declaration, # 26 Exhibit L to Choudhury Declaration) (Shamsi, Hina) (Entered: 03/22/2013)
93 Unopposed Motion to Supplement the Record on the Parties Cross−Motions for Partial Summary Judgment. Filed by Salah Ali Ahmed, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Abdullatif Muthanna, Stephen Durga Persaud, Steven William Washburn. (Attachments: # 1 Attachment) (Choudhury, Nusrat) (Entered: 03/26/2013)
94 Order Granting Application for Special Admission Pro Hac Vice of Rita M. Siemion for Constitution Project. Application Fee in amount of $100 collected. Receipt No. 51324 issued. Signed on 3/27/2013 by Judge Anna J. Brown. (ecp) (Entered: 03/28/2013)
95 ORDER by Judge Anna J. Brown. Granting Plaintiff's Unopposed Motion to Supplement the Record on the Parties' Cross−Motions for Partial Summary Judgment 93 . (bb) (Entered: 03/28/2013)
96 Unopposed Motion to Appear as Amicus Curiae . Filed by Constitution Project. (Attachments: # 1 Exhibit Exhibit A) (Siemion, Rita) (Entered: 03/29/2013)
97 ORDER by Judge Anna J. Brown. The Court has completed its consideration of The Constitution Project's Motion 96 for Leave to File Amicus Curiae Brief in Support of Plaintiffs; Cross−motion for Partial Summary Judgment. The Court notes the conditional consent of the parties to the participation of The Constitution Project provided the Court permits the described additional, optional briefing by the parties. Because the Court anticipates setting oral argument no earlier than mid−June, the Court concludes the additional proposed briefing will not delay its preparation and, therefore, grants the Motion 96 as follows: 1. The Constitution Project may filed its proposed Amicus Curiae Brief in the record of this case; 2. Defendants now have until April 26, 2013, to file their opposition to Plaintiffs' Cross−Motion 91 for Partial Summary Judgment and to file any brief responsive to The Constitution Project's Amicus Brief; 3. Plaintiffs' reply in further support of their Cross−Motion is now due May 10, 2013. (bb) (Entered: 04/01/2013)
98 Unopposed Motion to Amend/Correct Plaintiffs' Memoranda of Points and Authorities in Support of Their Cross−Motion for Partial Summary Judgment and in Opposition to Defendants' Motion for Partial Summary Judgment. Filed by Salah Ali Ahmed, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Abdullatif Muthanna, Stephen Durga Persaud, Steven William Washburn. (Attachments: # 1 Proposed Document Plaintiffs' Amended Memorandum of Points and Authorities in Support of Plaintiffs' Cross−Motion for Partial Summary Judgment, # 2 Proposed Document Plaintiffs' Amended Memorandum of Points and Authorities in Opposition to Defendants' Motion for Partial Summary Judgment) (Choudhury, Nusrat) (Entered: 04/01/2013)
99 Amicus Brief In Support of Plaintiffs' Cross−Motion for Partial Summary Judgment. Filed by The Constitution Project. (Siemion, Rita) (Entered: 04/02/2013)
100 ORDER by Judge Anna J. Brown. Granting Plaintiffs' Unopposed Motion to Amend Plaintiffs' Memoranda of Points and Authorities 98 . Counsel are directed to provide the Court with two copies, three−hole punched. (bb) (Entered: 04/05/2013)
101 Scheduling Order by Judge Anna J. Brown. Oral Argument on Defendants' Motion for Partial Summary Judgment 85 , Plaintiffs' Cross Motion for Partial Summary Judgment 91 and The Constitution Project's Amicus Curiae Brief is SET for 6/21/2013

04/26/2013 04/26/2013 05/10/2013 06/07/2013
06/21/2013
07/03/2013 07/16/2013
07/18/2013 08/28/2013
09/03/2013 09/05/2013 09/16/2013

at 09:00 AM before Judge Anna J. Brown. (bb) (Entered: 04/08/2013)
102 Reply to Motion for Partial Summary Judgment 85 . Filed by All Defendants. (Risner, Scott) (Entered: 04/26/2013)
103 Response in Opposition to Cross Motion for Partial Summary Judgment 91 . Filed by All Defendants. (Risner, Scott) (Entered: 04/26/2013)
104 Reply to Cross Motion for Partial Summary Judgment 91 Oral Argument requested. Filed by Salah Ali Ahmed, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Abdullatif Muthanna, Stephen Durga Persaud, Steven William Washburn. (Choudhury, Nusrat) (Entered: 05/10/2013)
105 Order by Judge Anna J. Brown. The Court notes Plaintiffs failed to file their amended Memoranda as proposed after the Court granted their Unopposed Motion 98 to amend same on 4/5/13. In light of the fact that Replies 102 , 104 to both pending Motions 85 , 91 in this matter have been filed, however, the Court deems Plaintiffs' amended Memoranda as having been timely filed on 4/5/13. Counsel also are reminded that the Local Rules require all motions to be accompanied by a separately filed memorandum in support. (bb) (Entered: 06/07/2013)
106 MINUTES of Proceedings: Oral Argument on Motion for Partial Summary Judgment 85 and Motion for Partial Summary Judgment 91 . Motions are taken under advisement as of 6/21/2013. Nusrat Choudhury, Hina Shamsi, Steve Wilker, Kevin Diaz, Ahilan Arulanantham, present as counsel for plaintiff(s). Scott Risner, Lily Farel, present as counsel for defendant(s). Rita Siemion present (Amicus Brief). Court Reporter: Jill Erwin. Judge Anna J. Brown presiding. (bb) Modified on 7/10/2013 to correct court reporter (bb). (Entered: 06/24/2013)
107 Notice re Motion Hearing Held, 106 Response to the Court's Inquiry During Summary Judgment Hearing Filed by All Defendants (Related document(s): Motion Hearing Held, 106 .) (Farel, Lily) (Entered: 07/03/2013)
108 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Oral Argument held on June 21, 2013, before Judge Anna J. Brown, Court Reporter Jill L. Erwin, telephone number (503)326−8191. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the court reporter or PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 7/26/2013. Redaction Request due 8/9/2013. Redacted Transcript Deadline set for 8/19/2013. Release of Transcript Restriction set for 10/18/2013. (Erwin, Jill) (Entered: 07/16/2013)
109 Order by Judge Anna J. Brown. The pending Motions 85 and 91 were taken under advisement on 7/3/13 upon receipt of Defendants' response to the Court's request at oral argument. (bb) (Entered: 07/18/2013)
110 Opinion and Order: The Court GRANTS in part Plaintiffs Cross−Motion 91 as to Plaintiffs liberty interests in international air travel and reputation, DENIES in part Defendants Motion 85 as to the same issue, and DEFERS ruling on the remaining parts of the pending Cross−Motions. The Court also directs the parties to confer and to submit a joint status report no later than September 9, 2013, setting out their recommendation as to the most effective process to better develop the record so that the Court may complete its consideration of the still−pending Motions (#91, #85) and specifically setting out any additional issues that the parties believe need to be resolved on the existing Cross−Motions in light of the Court's rulings herein. Signed on 08/28/2013 by Judge Anna J. Brown. (bb) (Entered: 08/28/2013)
111 Consent Motion for Extension of Time to File Joint Status Report. Filed by All Defendants. (Attachments: # 1 Proposed Order) (Risner, Scott) (Entered: 09/03/2013)
112 ORDER: Granting Defendants' Consent Motion for Extension of Time 111 to File Joint Status Report. Joint Status Report is due by 9/16/2013. (bb) (Entered: 09/05/2013)
113 Joint Status Report by Salah Ali Ahmed, Federal Bureau of Investigation, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl

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Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Abdullatif Muthanna, Stephen Durga Persaud, Terrorist Screening Center, United States Department of Justice, Steven William Washburn. Filed by Salah Ali Ahmed, Federal Bureau of Investigation, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Abdullatif Muthanna, Stephen Durga Persaud, Terrorist Screening Center, United States Department of Justice, Steven William Washburn. (Choudhury, Nusrat) (Entered: 09/16/2013)
114 Joint Stipulation re Cross Motion for Partial Summary Judgment 91 , Motion for Partial Summary Judgment 85 by Salah Ali Ahmed, Federal Bureau of Investigation, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Abdullatif Muthanna, Stephen Durga Persaud, Terrorist Screening Center, United States Department of Justice, Steven William Washburn. Filed by Salah Ali Ahmed, Federal Bureau of Investigation, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Abdullatif Muthanna, Stephen Durga Persaud, Terrorist Screening Center, United States Department of Justice, Steven William Washburn. (Choudhury, Nusrat) (Entered: 09/26/2013)
115 Consent Motion for Stay of Supplemental Briefing in Light of Lapse of Appropriations. Filed by All Defendants. (Attachments: # 1 Proposed Order) (Risner, Scott) (Entered: 10/01/2013)
116 ORDER by Judge Anna J. Brown. Granting Consent Motion for Stay of Supplemental Briefing in Light of Lapse of Appropriations 115 . Counsel for Defendants shall confer with counsel for Plaintiffs and submit to the Court a proposal (with dates) as to how the parties wish to proceed within 7 days from the date Congress has appropriated funds for the Department of Justice. (bb) (Entered: 10/01/2013)
117 Notice of Attorney Withdrawal: Ben Wizner Filed by Salah Ali Ahmed, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Abdullatif Muthanna, Stephen Durga Persaud, Steven William Washburn (Choudhury, Nusrat) (Entered: 10/04/2013)
118 Joint Status Report . Filed by All Parties. (Attachments: # 1 Proposed Order) (Risner, Scott) (Entered: 10/22/2013)
119 Supplemental Brief . Filed by All Defendants. (Related document(s): Motion for Partial Summary Judgment,,,,,, 91 , Motion for Partial Summary Judgment 85 .) (Risner, Scott) (Entered: 10/25/2013)
120 Order by Judge Anna J. Brown. The Court has reviewed the Joint Status Report 118 of the parties and acknowledges Defendants' filing of its Supplemental Brief 119 related to the Court's further consideration of Defendants' Motion 85 for Partial Summary Judgment. In their Joint Status Report, the parties propose a briefing schedule for Plaintiffs' Response Brief (November 5, 2013), Defendants' Reply Brief, if any (November 15, 2013), and Plaintiffs' Reply Brief, if any (December 2, 2013). The Court adopts this proposed supplemental briefing schedule, but notes Plaintiffs are permitted to reply only if Defendants choose to reply. Once the briefing is complete, the Court will inform the parties whether oral argument would be helpful to the Court. (bb) (Entered: 10/28/2013)
121 Supplemental Brief in Support of Plaintiffs' Cross−Motion for Partial Summary Judgment. Filed by All Plaintiffs. (Related documents: Cross Motion for Partial Summary Judgment 91 , Motion for Partial Summary Judgment 85 .) (Shamsi, Hina) (Entered: 11/05/2013)
122 Notice of Attorney Withdrawal: Filed by All Defendants (Risner, Scott) (Entered: 11/15/2013)
123 Supplemental Brief Reply Memorandum in Support of Defendants Motion for Partial Summary Judgment. Filed by All Defendants. (Related document(s): Motion for

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Partial Summary Judgment,,,,,, 91 , Motion for Partial Summary Judgment 85 .) (Powell, Amy) (Entered: 11/15/2013)
124 Supplemental Brief Reply Memorandum in Support of Plaintiffs' Cross−Motion for Partial Summary Judgment. Filed by Abdul Hakeim Thabet Ahmed, Salah Ali Ahmed, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Abdullatif Muthanna, Stephen Durga Persaud, Steven William Washburn. (Related document(s): Motion for Partial Summary Judgment,,,,,, 91 , Motion for Partial Summary Judgment 85 .) (Shamsi, Hina) (Entered: 12/02/2013)
125 Notice of Attorney Withdrawal: Nusrat Jahan Choudhury Filed by Salah Ali Ahmed, Adama Bah, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Abdullatif Muthanna, Stephen Durga Persaud, Steven William Washburn (Choudhury, Nusrat) (Entered: 01/09/2014)
126 Notice of Supplemental Authority Filed by Salah Ali Ahmed, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Abdullatif Muthanna, Stephen Durga Persaud, Steven William Washburn (Attachments: # 1 Exhibit A) (Shamsi, Hina) (Entered: 01/15/2014)
127 Second Notice of Supplemental Authority Filed by Salah Ali Ahmed, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Abdullatif Muthanna, Stephen Durga Persaud, Steven William Washburn (Attachments: # 1 Exhibit) (Shamsi, Hina) (Entered: 01/23/2014)
128 Scheduling Order by Judge Anna J. Brown. In light of the supplemental briefs and supplemental authority regarding Defendants' Motion for Partial Summary Judgment 85 and Plaintiffs' Cross−Motion for Partial Summary Judgment 91 , continued Oral Argument is SET for 3/17/2014 at 01:30 PM in Portland Courtroom 14A before Judge Anna J. Brown. (bb) (Entered: 01/30/2014)
129 Third Notice of Supplemental Authority Filed by Salah Ali Ahmed, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Abdullatif Muthanna, Stephen Durga Persaud, Steven William Washburn (Attachments: # 1 Exhibit A) (Shamsi, Hina) (Entered: 02/10/2014)
130 MINUTES of Proceedings: Oral Argument on Motion for Partial Summary Judgment 85 and Cross−Motion for Partial Summary Judgment 91 . Motions are taken under advisement as of 3/17/2014. Hina Shamsi, Steven Wilker, Kevin Diaz present as counsel for plaintiff(s). Lily Farel, Amy Powell present as counsel for defendant(s). Court Reporter: Amanda LeGore. Judge Anna J. Brown presiding. (bb) (Entered: 03/20/2014)
131 Fourth Notice of Supplemental Authority Filed by Salah Ali Ahmed, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Abdullatif Muthanna, Stephen Durga Persaud, Steven William Washburn (Attachments: # 1 Exhibit Exhibit A) (Shamsi, Hina) (Entered: 03/25/2014)
132 Fifth Notice of Supplemental Authority Filed by All Plaintiffs (Attachments: # 1 Exhibit Exhibit A) (Shamsi, Hina) (Entered: 04/18/2014)
133 Notice of Attorney Withdrawal: Lily Farel Filed by All Defendants (Farel, Lily) (Entered: 04/30/2014)
134 Motion for Leave to Appear Pro Hac Vice for Attorney Alexandra Freedman Smith . Filing fee in the amount of $100 collected; Agency Tracking ID: 0979−3698025. Filed by All Plaintiffs. (Wilker, Steven) (Entered: 05/29/2014)
135 Order Granting Application for Special Admission Pro Hac Vice of Alexandra F. Smith for Salah Ali Ahmed, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye,Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif,Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed,Abdullatif Muthanna,Stephen Durga

06/24/2014
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Persaud, Mashaal Rana, Steven William Washburn. Application Fee in amount of $100 collected. Receipt No. 0979−3698025 issued. Signed on 6/1/2014 by Judge Anna J. Brown. (ecp) (Entered: 06/02/2014)
136 Opinion and Order: The Court DENIES Defendants' Motion 85 for Partial Summary Judgment and GRANTS Plaintiffs' Cross−Motion 91 for Partial Summary Judgment as to Claims One and Three in Plaintiffs' Third Amended Complaint, 83 . The Court directs the parties to confer as to the next steps in this litigation and to file no later than July 14, 2014, a Joint Status Report with their respective proposals and schedules. The Court will schedule a Status Conference thereafter at which primary counsel for the parties should plan to attend in person. Signed on 06/24/2014 by Judge Anna J. Brown. See attached 65 page Opinion and Order for full text. (bb) (Entered: 06/24/2014)
137 Notice of Attorney Substitution:Attorney Alexandra Smith is substituted as counsel of record in place of Attorney Laura Schauer Ives Filed by Ayman Latif (Smith, Alexandra) (Entered: 06/24/2014)
138 Unopposed Motion for Extension of Time to file a status report. Filed by All Defendants. (Powell, Amy) (Entered: 06/30/2014)
139 ORDER by Judge Anna J. Brown. Granting Defendants' Unopposed Motion for Extension of Time 138 to File Status Report. Joint Status Report is due by 8/4/2014. Status Conference is SET for 8/12/2014 at 02:00 PM in Portland Courtroom 14A before Judge Anna J. Brown. Per docket #136, primary counsel for the parties should plan to attend in person. (bb) (Entered: 07/01/2014)
140 Motion for Leave to Appear Pro Hac Vice for Attorney Hugh Handeyside . Filing fee in the amount of $100 collected; Agency Tracking ID: 0979−3742267. Filed by All Plaintiffs. (Wilker, Steven) (Entered: 07/01/2014)
141 Order Granting Application for Special Admission Pro Hac Vice of Hugh Handeyside for all Plaintiffs. Application Fee in amount of $100 collected. Receipt No. 0979−3742267 issued. Signed on 7/1/2014 by Judge Anna J. Brown. (sss) (Entered: 07/02/2014)
142 Notification of CM/ECF Account: Attorney Hugh Handeyside (appearing Pro Hac Vice). (sss) (Entered: 07/02/2014)
143 Scheduling Order by Judge Anna J. Brown. Status Conference set for 08/12/2014 at 2:00 PM is RESET AS TO TIME ONLY TO 11:00 AM in Portland Courtroom 14A before Judge Anna J. Brown. (bb) (Entered: 07/25/2014)
144 Joint Status Report by All Defendants. Filed by All Defendants. (Powell, Amy) (Entered: 08/04/2014)
145 Order by Judge Anna J. Brown. The Court acknowledges receipt of the Parties' Joint Status Report 144 . The Court is considering the parties' proposals and will give counsel direction in due course. In the meantime, the Court STRIKES the status conference set for 8/12/14 and will reset it at a later date with directions as to how the parties may prepare for the conference. (bb) (Entered: 08/07/2014)
146 Notice of Attorney Withdrawal: Kevin Diaz Filed by All Plaintiffs (Wilker, Steven) (Entered: 08/07/2014)
147 Order by Judge Anna J. Brown. The Court GRANTS the parties' email request to extend the deadline to 9/3/2014 for filing the parties' Joint Status Report. (sm) (Entered: 08/22/2014)
148 Joint Status Report by All Defendants. Filed by All Defendants. (Powell, Amy) (Entered: 09/03/2014)
149 ORDER regarding Status Report 148 . The Court acknowledges receipt of the parties' Joint Status Report 148 . The Court will provide the parties with further direction in due course. Ordered by Judge Anna J. Brown. (mr) (Entered: 09/08/2014)
150 Scheduling Order by Judge Anna J. Brown. Rule 16 Conference is SET for 10/3/2014 at 09:00 AM in Portland Courtroom 14A before Judge Anna J. Brown. (bb) (Entered: 09/17/2014)

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151 Notice of Appearance of Brigham J. Bowen appearing on behalf of Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice Filed by on behalf of Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice (Bowen, Brigham) (Entered: 10/01/2014)
152 MINUTES of Proceedings: Having fully considered the parties' respective case−management proposals 148 following the Court's 6/24/2014,Opinion and Order 136 and having conducted a Rule 16 Case Management Conference with counsel on 10/03/2014, the Court, in the exercise of its case−management discretion, issues this Case−Management Order. No later than 10/10/2014, Defendant shall identify to the Court and Plaintiffs which Plaintiffs, if any, will not be precluded as of that date from boarding a commercial aircraft flying over United States airspace. Defendants shall, no later than 11/14/2014, complete an interim substantive review of the grounds for precluding all remaining Plaintiffs from flying over United States airspace in order to determine whether any additional Plaintiffs may thereafter be permitted to board such aircraft. No later than 12/19/2014, Defendants shall file a Status Report updating the Court and Plaintiffs of Defendants' progress in reconsidering each remaining Plaintiff's DHS TRIP applications. No later than 1/16/2015, Defendants shall have completed their final substantive reconsideration of all remaining Plaintiffs' DHS TRIP redress inquiries pursuant to procedures fully compliant with the Court's June 24, 2014,Opinion and Order, and this Order. The parties shall submit a Joint Status Report no later than 1/31/2015, informing the Court of their proposed process and schedule for adjudicating those remaining claims. See attached Order for full text. Hina Shamsi, Hugh Haneyside, Steven Wilker present as counsel for plaintiff(s). Diane Kelleher, Brigham Bowen present as counsel for defendant(s). Court Reporter: Amanda LeGore. Judge Anna J. Brown presiding. (bb) (Entered: 10/06/2014)
153 Status Report by All Defendants. Filed by All Defendants. (Attachments: # 1 Attachment Letter to the ACLU) (Powell, Amy) (Entered: 10/10/2014)
154 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Oral Argument held on October 3, 2014 before Judge Anna J. Brown, Court Reporter Amanda M. LeGore, telephone number 503−326−8184. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 11/6/2014. Redaction Request due 11/20/2014. Redacted Transcript Deadline set for 12/4/2014. Release of Transcript Restriction set for 1/29/2015. (LeGore, Amanda) (Entered: 10/27/2014)
155 Notice of Appearance of Adam D. Kirschner appearing on behalf of Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice Filed by on behalf of Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice (Kirschner, Adam) (Entered: 12/02/2014)
156 Notice of Appeal to the 9th Circuit (fee exempt status selected (AUSA)) . Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Attachments: # 1 Exhibit A− Representation Statement) (Kirschner, Adam) (Entered: 12/02/2014)
USCA Case Number and Notice confirming Docketing Record on Appeal re Notice of Appeal 156 . Case Appealed to 9th Circuit Court of Appeals Case Number 14−36027 assigned. (dsg) (Entered: 12/03/2014)
157 Status Report by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Bowen, Brigham) (Entered: 12/19/2014)
158 Notice of Attorney Substitution:Attorney Justine Fischer is substituted as counsel of record in place of Attorney Steven M. Wilker Hina Shamst and High Handeyside; Ahilan Arulanantham and Jennifer Pasquarella; Alan Schlosser and Julia Harumi Mass; Mitchell Hurley, Christopher Egleson and Justin Bell; and Alexandra Freedman Smith; and Reem Salahi Filed by Stephen Durga Persaud (Fischer, Justine) (Entered: 12/19/2014)
159 Motion for Leave to Appear Pro Hac Vice for Attorney William J. Genego . Filing fee in the amount of $100 collected; Agency Tracking ID: 0979−3947287. Filed by

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Stephen Durga Persaud. (Fischer, Justine) (Entered: 12/19/2014)
160 Order Granting Application for Special Admission Pro Hac Vice of William J. Genego for Stephen Durga Persaud. Application Fee in amount of $100 collected. Receipt No. 0979−3947287 issued. Signed on 12/22/2014 by Judge Anna J. Brown. (ecp) (Entered: 12/22/2014)
161 Notification of CM/ECF Account for Attorney William J. Genego (appearing Pro Hac Vice). Your login is: wjgenego. Go to the CM/ECF login page to set your password. (ecp) (Entered: 12/22/2014)
162 MANDATE of USCA for the 9th Circuit, USCA # 14−36027, re Notice of Appeal 156 . The motion filed by the appellants on December 18, 2014 for voluntary dismissal of this appeal is granted. This appeal is dismissed. See Fed. R. App. P. 42(b); 9th Cir. R. 27−9.1. This order served on the district court shall constitute the mandate of this court. (dsg) (Entered: 12/31/2014)
163 Consent Motion to Modify Case Management Schedule. Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Bowen, Brigham) (Entered: 01/15/2015)
164 ORDER by Judge Anna J. Brown. Granting Motion (Consent) 163 to Modify Schedule. General deadline to complete DHS TRIP review process is extended to 1/22/2015; deadline to complete DHS TRIP review process for Mr. Persaud is extended to 01/28/2015. Joint Status Report is now due 02/06/2015. (bb) (Entered: 01/16/2015)
165 Status Report by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Bowen, Brigham) (Entered: 01/22/2015)
166 Notice of Appearance of Samuel M. Singer appearing on behalf of All Defendants Filed by on behalf of All Defendants (Singer, Samuel) (Entered: 01/29/2015)
167 Joint Status Report . Filed by All Plaintiffs. (Attachments: # 1 Plaintiffs' Exhibit A, # 2 Plaintiffs' Exhibit B) (Shamsi, Hina) (Entered: 02/06/2015)
168 CASE MANAGEMENT ORDER. See 10−page order attached. Signed on 2/13/2015 by Judge Anna J. Brown. (mr) (Entered: 02/13/2015)
169 Joint Motion for Entry of Stipulated Protective Order. Filed by All Plaintiffs. (Shamsi, Hina) (Entered: 02/25/2015)
170 ORDER by Judge Anna J. Brown. The Court has received the parties' proposed form of Stipulated Protective Order 169 . For the reasons in the attached Order, the Court declines to sign the order in its current form and DENIES the request. The Court directs the parties to confer further and to submit a new form of stipulated protective order in which they propose the requisite "good cause" findings. (bb) (Entered: 03/06/2015)
171 Joint Motion for Protective Order (Renewed). Filed by All Plaintiffs. (Shamsi, Hina) (Entered: 03/13/2015)
172 Consent Motion to File Under Seal Unredacted Exhibits to Plaintiff−Specific Joint Statements of Agreed Facts. Filed by All Plaintiffs. (Shamsi, Hina) (Entered: 03/13/2015)
173 Joint Concise Statement of Agreed Facts Relevant to All Plaintiffs. Filed by All Plaintiffs. (Shamsi, Hina) (Entered: 03/13/2015)
174 ORDER by Judge Anna J. Brown. The Court has considered the parties' Consent Motion 172 to File Under Seal Unredacted Exhibits to Plaintiff−Specific Joint Statements of Agreed Facts. Without attempting to resolve the parties' disagreement as to whether and to what extent public disclosure of proposed redacted material may stigmatize Plaintiffs or raise security concerns, the Court is satisfied in the exercise of its discretion that good cause exists for the parties to proceed as proposed in the Consent Motion. Accordingly, the Court grants the Motion. (bb) (Entered: 03/13/2015)

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175 Joint Concise Statement of Agreed Facts Relevant to Plaintiff Mohamed Sheikh Abdirahman Kariye. Filed by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Shamsi, Hina) (Entered: 03/13/2015)
176 Joint Concise Statement of Agreed Facts Relevant to Plaintiff Faisal Kashem. Filed by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Shamsi, Hina) (Entered: 03/13/2015)
177 Joint Concise Statement of Agreed Facts Relevant to Plaintiff Raymond Knaeble. Filed by Raymond Earl Knaeble, IV. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Shamsi, Hina) (Entered: 03/13/2015)
178 Joint Concise Statement of Agreed Facts Relevant to Plaintiff Amir Meshal. Filed by Amir Meshal. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Shamsi, Hina) (Entered: 03/13/2015)
179 Joint Concise Statement of Agreed Facts Relevant to Plaintiff Steven Washburn. Filed by Steven William Washburn. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Shamsi, Hina) (Entered: 03/13/2015)
180 Joint Concise Statement of Agreed Facts Relevant to Plaintiff Stephen Persaud. Filed by Stephen Durga Persaud. (Attachments: # 1 Errata A, # 2 Exhibit B, # 3 Exhibit C) (Genego, William) (Entered: 03/13/2015)
181 Joint Concise Statement re Order 168 −−− Joint Filing Regarding Disposition of Claims. Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Attachments: # 1 Exhibit 1 (Plaintiffs' Proposed Order), # 2 Exhibit 2 (Defendants' Proposed Order)) (Bowen, Brigham) (Entered: 03/13/2015)
182 Stipulated Protective Order. Signed on 03/16/2015 by Judge Anna J. Brown. (bb) (Entered: 03/16/2015)
183 (DOCUMENT FILED UNDER SEAL), Exhibit re Joint Concise Statement of Agreed Facts Relevant to Plaintiff Stephen Persaud 180 . Filed by Stephen Durga Persaud. (ecp) (Entered: 03/19/2015)
184 Exhibit re Joint Concise Statement 175 of Agreed Facts Relevant to Plaintiff Mohamed Sheikh Abdirahman Kariye. Filed by Mohamed Sheikh Abdirahm Kariye. (ecp) Modified on 9/1/2015 to unseal document per Order 293 (ecp). (Entered: 03/19/2015)
185 (DOCUMENT FILED UNDER SEAL), Exhibits re Concise Statement of Agreed Facts Relevant to Plaintiff Faisal Kashem 176 . Filed by Faisal Nabin Kashem. (ecp) (Entered: 03/19/2015)
186 (DOCUMENT FILED UNDER SEAL), Exhibits re Concise Statement of Agreed Facts Relevant to Plaintiff Raymond Knaeble 177 . Filed by Raymond Earl Knaeble, IV. (ecp) (Entered: 03/19/2015)
187 (DOCUMENT FILED UNDER SEAL), Exhibits re Concise Statement of Agreed Facts Relevant to Plaintiff Amir Meshal 178 . Filed by Amir Meshal. (ecp) (Entered: 03/19/2015)
188 (DOCUMENT FILED UNDER SEAL), Exhibits re Concise Statement of Agreed Facts Relevant to Plaintiff Steven Washburn 179 . Filed by Steven William Washburn. (ecp) (Entered: 03/19/2015)
189 Consent Motion to Revise Case Management Schedule. Filed by All Plaintiffs. (Shamsi, Hina) (Entered: 03/23/2015)
190 ORDER: The Court has completed its consideration of the parties' Consent Motion (#189) to Change Case Management Schedule and grants the Motion. See Order for full text and complete deadlines. Dispositive Motions are due by 4/17/2015. Responses to Dispositive Motions are due by 5/18/2015. Replies to Dispositive Motions are due by 6/22/2015. Replies are due by 7/16/2015. Ordered by Judge Anna J. Brown. (dls) (Entered: 03/24/2015)
191 ORDER: The Court has reviewed the parties' Joint Filing (#181) Regarding Disposition of Claims. The Court has prepared its own proposed form of Judgment

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attached hereto as Exhibit A for the parties' consideration. See order for full text. A single joint filing due no later than 5 court days before the telephone conference. Status Conference is set for 4/13/2015 at 01:30PM in Portland by telephone before Judge Anna J. Brown. Counsel received the conference call information via email. Ordered by Judge Anna J. Brown. (Attachments: # 1 Attachment draft judgment) (dls) (Entered: 03/24/2015)
192 Consent Motion to Revise Case Management Schedule. Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Bowen, Brigham) (Entered: 03/26/2015)
193 ORDER: GRANTING Defendants' consent Motion (#192) to Revise Case Management Schedule 192 . Defendants' Response to Combined Plaintiffs' Summary Judgment Motion and separate Responses to Plaintiff−Specific Summary Judgment Motions are due 5/28/15. Defendants' Combined Cross−Motions and Defendants' separate Plaintiff−Specific Cross−Motions are due 5/28/15. Ordered by Judge Anna J. Brown. (dls) (Entered: 03/26/2015)
194 Joint Concise Statement Supplementing Joint Filing Regarding Disposition of Claims for Individuals Not on the No Fly List. Filed by Salah Ali Ahmed, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Abdullatif Muthanna, Mashaal Rana, Steven William Washburn. (Attachments: # 1 Attachment Declaration of Hugh Handeyside in Support of Plaintiffs, # 2 Exhibit A to Handeyside Declaration, # 3 Exhibit B to Handeyside Declaration, # 4 Exhibit C to Handeyside Declaration) (Shamsi, Hina) (Entered: 04/06/2015)
195 Order by Judge Anna J. Brown. The Court acknowledges receipt of the parties' Supplemental Joint Filing Regarding Disposition of Claims 194 in which the parties offer extensive disputed analysis as to whether the Court should enter a judgment at this time as to the claims of those Plaintiffs who are no longer on the No Fly List. The Court concludes there is insufficient time between now and the April 13, 2015, telephone conference for the Court to consider adequately the parties' arguments on this issue and, therefore, the Court strikes that telephone conference. The Court is taking under advisement the question whether a judgment should enter now and, if so, in what form, and the Court will notify the parties if additional briefing or argument will be helpful to the Court. In the meantime, the Court requests counsel for the Plaintiffs who are no longer on the No Fly List to file no later than April 17, 2015, a statement for the record confirming that, other than a future petition for attorneys' fees and costs on behalf of these Plaintiffs, there are not any additional claims to be litigated on behalf of these particular Plaintiffs in this action. (bb) (Entered: 04/08/2015)
196 Scheduling Order by Judge Anna J. Brown. After the Court has reviewed the parties Summary Judgment motions and cross−motions to be filed and has determined oral argument is necessary, Oral Argument will be SET for 8/20/2015 at 01:30PM in Portland Courtroom 14A before Judge Anna J. Brown. Counsel are directed to secure this date on their calendar. (bb) (Entered: 04/09/2015)
197 Notice re: Revisions to DHS TRIP Procedures Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice (Bowen, Brigham) (Entered: 04/13/2015)
198 Concise Statement re Scheduling,,,, 195 Regarding Disposition of Claims for Individuals Not on the No Fly List. Filed by Salah Ali Ahmed, Nagib Ali Ghaleb, Ayman Latif, Ibraheim Y. Mashal, Elias Mustafa Mohamed, Abdullatif Muthanna, Mashaal Rana. (Shamsi, Hina) (Entered: 04/14/2015)
199 Notice of Filing Under Seal Unredacted Memorandum in Support of Renewed Motion for Partial Summary Judgment Filed by Mohamed Sheikh Abdirahm Kariye (Shamsi, Hina) (Entered: 04/17/2015)
200 Notice of Filing Under Seal Unredacted Memorandum in Support of Renewed Motion for Partial Summary Judgment Filed by Faisal Nabin Kashem (Shamsi, Hina) (Entered: 04/17/2015)

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201 Notice of Filing Under Seal Unredacted Memorandum in Support of Renewed Motion for Partial Summary Judgment Filed by Raymond Earl Knaeble, IV (Shamsi, Hina) (Entered: 04/17/2015)
202 Notice of Filing Under Seal Unredacted Memorandum in Support of Renewed Motion for Partial Summary Judgment Filed by Amir Meshal (Shamsi, Hina) (Entered: 04/17/2015)
203 Notice of Filing Under Seal Unredacted Memorandum in Support of Renewed Motion for Partial Summary Judgment Filed by Steven William Washburn (Shamsi, Hina) (Entered: 04/17/2015)
204 Notice of Under Seal Filing of Unredacted Memorandum in Support of Renewed Motion for Partial Summary Judgment Filed by Stephen Durga Persaud (Genego, William) (Entered: 04/17/2015)
205 Redacted Memorandum in Support of Renewed Motion For Partial Summary Judgment. Filed by Stephen Durga Persaud. (Genego, William) (Entered: 04/17/2015)
206 Motion for Partial Summary Judgment Renewed and Combined on Behalf of Plaintiffs on No Fly List. Oral Argument requested. Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Stephen Durga Persaud, Steven William Washburn. (Shamsi, Hina) (Entered: 04/17/2015)
207 Memorandum in Support of Plaintiffs' Renewed and Combined Motion for Partial Summary Judgment. Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Stephen Durga Persaud, Steven William Washburn. (Related document(s): Motion for Partial Summary Judgment, 206 .) (Shamsi, Hina) (Entered: 04/17/2015)
208 Declaration of Hugh Handeyside in Support of Plaintiffs' Renewed and Combined Motion for Partial Summary Judgment. Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Stephen Durga Persaud, Steven William Washburn. (Related document(s): Motion for Partial Summary Judgment, 206 .) (Attachments: # 1 Exhibit A (Part 1 of 2), # 2 Exhibit A (Part 2 of 2)) (Shamsi, Hina) (Entered: 04/17/2015)
209 Motion for Partial Summary Judgment Renewed by Mohamed Kariye. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Oral Argument requested. Filed by Mohamed Sheikh Abdirahm Kariye. (Shamsi, Hina) (Entered: 04/17/2015)
210 Motion for Partial Summary Judgment Renewed by Mohamed Kariye (CORRECTED ENTRY). Oral Argument requested. Filed by Mohamed Sheikh Abdirahm Kariye. (Shamsi, Hina) (Entered: 04/17/2015)
211 Memorandum in Support of Renewed Motion for Partial Summary Judgment by Plaintiff Mohamed Kariye. Filed by Mohamed Sheikh Abdirahm Kariye. (Related document(s): Motion for Partial Summary Judgment 210 .) (Shamsi, Hina) (Entered: 04/17/2015)
212 Motion for Partial Summary Judgment Renewed by Faisal Kashem. Oral Argument requested. Filed by Faisal Nabin Kashem. (Shamsi, Hina) (Entered: 04/17/2015)
213 Memorandum in Support of Renewed Motion for Partial Summary Judgment by Plaintiff Faisal Kashem. Filed by Faisal Nabin Kashem. (Related document(s): Motion for Partial Summary Judgment 212 .) (Shamsi, Hina) (Entered: 04/17/2015)
214 Motion for Partial Summary Judgment Renewed by Raymond Knaeble. Oral Argument requested. Filed by Raymond Earl Knaeble, IV. (Shamsi, Hina) (Entered: 04/17/2015)
215 Memorandum in Support of Renewed Motion for Partial Summary Judgment by Plaintiff Raymond Knaeble. Filed by Raymond Earl Knaeble, IV. (Related document(s): Motion for Partial Summary Judgment 214 .) (Shamsi, Hina) (Entered: 04/17/2015)
216 Motion for Partial Summary Judgment Renewed by Amir Meshal. Oral Argument requested. Filed by Amir Meshal. (Shamsi, Hina) (Entered: 04/17/2015)

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217 Memorandum in Support of Renewed Motion for Partial Summary Judgment by Plaintiff Amir Meshal. Filed by Amir Meshal. (Related document(s): Motion for Partial Summary Judgment 216 .) (Shamsi, Hina) (Entered: 04/17/2015)
218 Motion for Partial Summary Judgment Renewed by Steven Washburn. Oral Argument requested. Filed by Steven William Washburn. (Shamsi, Hina) (Entered: 04/17/2015)
219 Memorandum in Support of Renewed Motion for Partial Summary Judgment by Plaintiff Steven Washburn. Filed by Steven William Washburn. (Related document(s): Motion for Partial Summary Judgment 218 .) (Shamsi, Hina) (Entered: 04/17/2015)
220 Motion for Partial Summary Judgment Renewed by Stephen Persaud. Oral Argument requested. Filed by Stephen Durga Persaud. (Genego, William) (Entered: 04/17/2015)
221 Memorandum in Support of Renewed Motion for Partial Summary Judgment by Plaintiff Mohamed Kariye. Filed by Mohamed Sheikh Abdirahm Kariye. (Related document(s): Motion for Partial Summary Judgment 210 .) (ecp) Modified on 9/1/2015 to unseal document per Order 293 (ecp). (Entered: 04/20/2015)
222 (DOCUMENT FILED UNDER SEAL), Memorandum in Support of Motion for Partial Summary Judgment Renewed by Faisal Kashem.. Filed by Faisal Nabin Kashem. (Related document(s): Motion for Partial Summary Judgment 212 .) (ecp) (Entered: 04/20/2015)
223 (DOCUMENT FILED UNDER SEAL), Memorandum in Support of Motion for Partial Summary Judgment Renewed by Raymond Knaeble. Filed by Raymond Earl Knaeble, IV. (Related document(s): Motion for Partial Summary Judgment 214 .) (ecp) (Entered: 04/20/2015)
224 (DOCUMENT FILED UNDER SEAL), Memorandum in Support of Motion for Partial Summary Judgment Renewed by Amir Meshal. Filed by Amir Meshal. (Related document(s): Motion for Partial Summary Judgment 216 .) (ecp) (Entered: 04/20/2015)
225 (DOCUMENT FILED UNDER SEAL), Memorandum in Support of Motion for Partial Summary Judgment Renewed by Stephen Persaud.. Filed by Stephen Durga Persaud. (Related document(s): Motion for Partial Summary Judgment 220 .) (ecp) (Entered: 04/20/2015)
226 (DOCUMENT FILED UNDER SEAL), Memorandum in Support of Motion for Partial Summary Judgment Renewed by Steven Washburn. Filed by Steven William Washburn. (Related document(s): Motion for Partial Summary Judgment 218 .) (ecp) (Entered: 04/20/2015)
227 ORDER: The Court ENTERS a non−final Judgment on Claims One and Three in Plaintiffs Third Amended Complaint in favor of Plaintiffs Ayman Latif, Elias Mustafa Mohamed, Nagib Ali Ghaleb, Abdullatif Muthanna, Ibraheim Y. Mashal, Salah Ali Ahmed, and Mashaal Rana, who are not on the No−Fly List. The Court also DISMISSES without prejudice Claim Two as to these Plaintiffs, who are not presently on the No−Fly List. Signed on 4/24/15 by Judge Anna J. Brown. (dls) (Entered: 04/24/2015)
228 JUDGMENT: Based on the Court's Opinions and Orders (#110, #136) issuedAugust 28, 2013, and June 24, 2014, respectively, granting partial summary judgment in Plaintiffs' favor; the Court's Case−Management Order (#152) issued October 3, 2014; and Defendants' October 10, 2014, disclosure that the subset ofPlaintiffs listed below are not currently on the No−Fly List, the Court ENTERS Judgment in favor of Plaintiffs Ayman Latif, Elias Mustafa Mohamed, Nagib Ali Ghaleb, Abdullatif Muthanna, Ibraheim Y. Mashal, Salah Ali Ahmed, and Mashaal Rana on Claims One and Three of Plaintiffs' Third Amended Complaint consistent with the Courts Orders (#110, #136, #152). See order for full text. Signed on 4/24/15 by Judge Anna J. Brown. (dls) (Entered: 04/24/2015)
229 Notice of Attorney Withdrawal: of Christopher Egelson as Counsel For Plaintiffs Filed by Abdul Hakeim Thabet Ahmed, Salah Ali Ahmed, Adama Bah, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Samir Mohamed Ahmed Mohamed, Abdullatif Muthanna, Saleh A. Omar,

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Mashaal Rana, Halime Sat, Steven William Washburn (Wilker, Steven) (Entered: 05/05/2015)
230 Unopposed Motion to Consolidate Memoranda in Support of Summary Judgment Submissions. Filed by All Defendants. (Singer, Samuel) (Entered: 05/21/2015)
231 Notice of Errata Filed by All Defendants (Singer, Samuel) (Entered: 05/21/2015)
232 ORDER by Judge Anna J. Brown. The Court GRANTS Defendants' Motion 230 to Consolidate Memoranda. Defendants' consolidated memorandum in support of Defendants' expected cross−motion for summary judgment and Defendants' memorandum in opposition to Plaintiffs' Motion 206 for Partial Summary Judgment shall be filed no later than May 28, 2015, and must not exceed 60 pages. Defendants' consolidated memoranda as to each individual Plaintiff shall be filed no later than May 28, 20125, and must not exceed 15 pages each. Plaintiffs may file similar consolidated responses to Defendants' expected motions as to each individual Plaintiff and replies in support of Plaintiffs' Motions no later than June 22, 2015. (bb) (Entered: 05/26/2015)
233 Notice re Order on motion for protective order 182 , Order on Motion − Miscellaneous,, 174 Notice of Filing Under Seal − Kariye Cross−Motion and Opposition Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice (Related document(s): Order on motion for protective order 182 , Order on Motion − Miscellaneous,, 174 .) (Bowen, Brigham) (Entered: 05/28/2015)
234 Notice re Order on motion for protective order 182 , Order on Motion − Miscellaneous,, 174 Notice of Filing Under Seal − Kashem Cross−Motion and Opposition Filed by All Defendants (Related document(s): Order on motion for protective order 182 , Order on Motion − Miscellaneous,, 174 .) (Bowen, Brigham) (Entered: 05/28/2015)
235 Notice re Order on motion for protective order 182 , Order on Motion − Miscellaneous,, 174 Notice of Filing Under Seal − Knaeble Cross−Motion and Opposition Filed by All Defendants (Related document(s): Order on motion for protective order 182 , Order on Motion − Miscellaneous,, 174 .) (Bowen, Brigham) (Entered: 05/28/2015)
236 Notice re Order on motion for protective order 182 , Order on Motion − Miscellaneous,, 174 Notice of Filing Under Seal − Meshal Cross−Motion and Opposition Filed by All Defendants (Related document(s): Order on motion for protective order 182 , Order on Motion − Miscellaneous,, 174 .) (Bowen, Brigham) (Entered: 05/28/2015)
237 Notice re Order on motion for protective order 182 , Order on Motion − Miscellaneous,, 174 Notice of Filing Under Seal − Persaud Cross−Motion and Opposition Filed by All Defendants (Related document(s): Order on motion for protective order 182 , Order on Motion − Miscellaneous,, 174 .) (Bowen, Brigham) (Entered: 05/28/2015)
238 Notice re Order on motion for protective order 182 , Order on Motion − Miscellaneous,, 174 Notice of Filing Under Seal − Washburn Cross−Motion and Opposition Filed by All Defendants (Related document(s): Order on motion for protective order 182 , Order on Motion − Miscellaneous,, 174 .) (Bowen, Brigham) (Entered: 05/28/2015)
239 Brief − Cross−Motion for Partial Summary Judgment and Opposition − Kariye. Filed by All Defendants. (Bowen, Brigham) Modified on 9/1/2015 to unseal document per Order 293 (ecp). (Entered: 05/28/2015)
240 Brief − Cross−Motion for Partial Summary Judgment and Opposition − Kashem. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by All Defendants. (Bowen, Brigham) (Entered: 05/28/2015)
241 Motion for Partial Summary Judgment − (Redacted) Cross−Motion for Partial Summary Judgment and Opposition − Kariye. Oral Argument requested. Filed by All Defendants. (Bowen, Brigham) (Entered: 05/28/2015)

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242 Motion for Partial Summary Judgment − (Redacted) Cross−Motion for Partial Summary Judgment and Opposition − Kashem. Oral Argument requested. Filed by All Defendants. (Bowen, Brigham) (Entered: 05/28/2015)
243 Cross Motion for Partial Summary Judgment and Opposition to Plaintiff's Motion − Meshal. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Oral Argument requested. Filed by All Defendants. (Powell, Amy) (Entered: 05/28/2015)
244 Cross Motion for Partial Summary Judgment and Opposition to Plaintiff's Motion − Persaud. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Oral Argument requested. Filed by All Defendants. (Powell, Amy) (Entered: 05/28/2015)
245 Cross Motion for Partial Summary Judgment and Opposition − Washburn. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Oral Argument requested. Filed by All Defendants. (Powell, Amy) (Entered: 05/28/2015)
246 Cross Motion for Partial Summary Judgment and Opposition to Plaintiff's Motion − Knaeble. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Oral Argument requested. Filed by All Defendants. (Powell, Amy) (Entered: 05/28/2015)
247 Redacted Motion for Partial Summary Judgment and Opposition to Plaintiff's Motion − Meshal. Oral Argument requested. Filed by All Defendants. (Powell, Amy) (Entered: 05/28/2015)
248 Redacted Motion for Partial Summary Judgment and Opposition to Plaintiff's Motion − Persaud. Oral Argument requested. Filed by All Defendants. (Powell, Amy) (Entered: 05/28/2015)
249 Redacted Motion for Partial Summary Judgment and Opposition to Plaintiff's Motion − Washburn. Oral Argument requested. Filed by All Defendants. (Powell, Amy) (Entered: 05/28/2015)
250 Redacted Motion for Partial Summary Judgment and Opposition to Plaintiff's Motion − Knaeble. Oral Argument requested. Filed by All Defendants. (Powell, Amy) (Entered: 05/28/2015)
251 Cross Motion for Partial Summary Judgment and Opposition (All Plaintiffs). Oral Argument requested. Filed by All Defendants. (Bowen, Brigham) (Entered: 05/28/2015)
252 Declaration of Deborah O. Moore . Filed by All Defendants. (Related document(s): Motion for Partial Summary Judgment 251 .) (Bowen, Brigham) (Entered: 05/28/2015)
253 Declaration of G. Clayton Grigg. Filed by All Defendants. (Related document(s): Motion for Partial Summary Judgment 251 .) (Attachments: # 1 Exhibit) (Bowen, Brigham) (Entered: 05/28/2015)
254 Declaration of Michael Steinbach . Filed by All Defendants. (Related document(s): Motion for Partial Summary Judgment 251 .) (Attachments: # 1 Exhibit Memorandum of Understanding) (Bowen, Brigham) (Entered: 05/28/2015)
255 Motion to Revise Case Management Schedule. Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Stephen Durga Persaud, Steven William Washburn. (Shamsi, Hina) (Entered: 06/11/2015)
256 Memorandum in Opposition to Motion to Revise Case Management Schedule 255 . Filed by All Defendants. (Powell, Amy) (Entered: 06/16/2015)
257 Reply to Motion to Revise Case Management Schedule 255 . Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Stephen Durga Persaud, Steven William Washburn. (Shamsi, Hina) (Entered: 06/17/2015)
258 ORDER by Judge Anna J. Brown. After a thorough review of the extensive briefing on Plaintiffs' Motion (#255) to Revise Case Management Schedule, the Court

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GRANTS in part Plaintiff's Motion as follows: The Court concludes, in the exercise of its case−management discretion, that Plaintiffs should be permitted to make their record in opposition to Defendants' Motions #241−#251 for Summary Judgment, including the proffer of expert evidentiary arguments to explain their opposition. Because Plaintiffs did not anticipate their asserted need to make such a record in time to meet the current deadlines in the Court's Case Management Schedule, the Court also concludes the existing schedule should be modified reasonably to permit Plaintiffs to complete that record. The Court, however, declines on this scheduling Motion to make any ruling as to admissibility of the to−be−proffered declarations from Plaintiffs' retained experts for the purpose of resisting Defendants' Motion, and Defendants may challenge the admissibility of this evidence and, if necessary, supplement their record and arguments in light of these submissions. Accordingly, the Court makes the following changes to the existing Case Management Schedule: No later than June 24, 2015, Plaintiffs must disclose to Defendants the identities and curriculum vitae of all expert witnesses on whom they intend to rely in opposition to Defendants' Motion. No later than July 20, 2015, Plaintiffs must file their Memoranda in Opposition to Defendants' Combined and Plaintiff−Specific Cross−Motions for Summary Judgment and Reply Memoranda in Support of their Combined and Plaintiff−Specific Motions for Summary Judgment, including any substantive declarations from their expert witnesses. If Defendants require additional time to prepare their reply memoranda in light of Plaintiffs' proffer of expert declarations, then the Court will consider any motion for an extension of time in due course. Otherwise, Defendants must file their Reply Memoranda in Support of their Combined and Plaintiff−Specific Cross−Motions for Summary Judgment no later than August 27, 2015. These changes also necessitate the rescheduling of the oral argument previously set for August 20, 2015, which the Court now STRIKES. The Clerk will contact the parties in due course to reset oral argument on the parties' Cross−Motions for Summary Judgment for sometime in September 2015. (bb) (Entered: 06/18/2015)
259 Scheduling Order by Judge Anna J. Brown Oral Argument on all pending motions is SET for 10/19/2015 at 01:30 PM in Portland Courtroom 14A before Judge Anna J. Brown. (bb) (Entered: 07/08/2015)
260 Consent Motion for Extension of Time to Submit Response Brief. Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Stephen Durga Persaud, Steven William Washburn. (Shamsi, Hina) (Entered: 07/10/2015)
261 ORDER: The Court GRANTS the parties' Consent Motion 260 to Extend Briefing Deadlines. Plaintiff's Memoranda in Opposition to Defendants' Combined and Plaintiff−Specific Cross−Motions for Summary Judgment and Plaintiffs' Reply Memoranda in Support of their Combined and Plaintiff−Specific Motions for Summary Judgment are due 7/24/15. Defendants' Reply Memoranda in Support of their Combined and Plaintiff−Specific Cross−Motions for Summary Judgment are due 9/2/15. Ordered by Judge Anna J. Brown. (mr) (Entered: 07/13/2015)
262 Consent Motion for Extension of Time Re Briefing Deadlines. Expedited Hearing requested. Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Steven William Washburn. (Shamsi, Hina) (Entered: 07/23/2015)
263 ORDER by Judge Anna J. Brown. The Court GRANTS the Consent Motion 262 for Extension of Time. Plaintiffs Memoranda in Opposition to Defendants Combined and Plaintiff−Specific Cross−Motions for Summary Judgment; Plaintiffs Reply Memoranda in Support of their Combined and Plaintiff−Specific Motions for Summary Judgment are now due 8/7/15. Defendants Reply Memoranda in Support of their Combined and Plaintiff−Specific Cross−Motions for Summary Judgment are now due 9/23/15. Oral argument remains set on October 19, 2015. (bb) (Entered: 07/24/2015)
264 Scheduling Order by Judge Anna J. Brown. A telephonic Scheduling Conference is SET for 8/7/2015 at 10:00 AM before Judge Anna J. Brown. Parties were emailed the conference call in number. (bb) (Entered: 08/03/2015)
265 MINUTES of Proceedings: Status Conference held. The Court received input from the parties as to whether or not to have 3:15−cv−1343−SI US v Kariye reassigned to

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this judicial officer. The Court will make a joint recommendation to the Case Management Committee and advise the parties. Hina Shamsi, Steven Wilker, Catherine Wagner, Ahilan Arulanantham present as counsel for plaintiff(s). Brigham Bowen, Amy Powell, Samuel Singer present as counsel for defendant(s). Court Reporter: Amanda LeGore. Judge Anna J. Brown presiding. (bb) (Entered: 08/07/2015)
266 Motion for Leave to Appear Pro Hac Vice for Attorney Catherine A. Wagner . Filing fee in the amount of $100 collected; Agency Tracking ID: 0979−4232605. Filed by Abdul Hakeim Thabet Ahmed, Salah Ali Ahmed, Adama Bah, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Samir Mohamed Ahmed Mohamed, Abdullatif Muthanna, Saleh A. Omar, Mashaal Rana, Halime Sat, Steven William Washburn. (Wilker, Steven) (Entered: 08/07/2015)
267 Response in Opposition to Cross Motion for Partial Summary Judgment and Opposition (All Plaintiffs) 251 Oral Argument requested. Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Stephen Durga Persaud, Steven William Washburn. (Shamsi, Hina) (Entered: 08/07/2015)
268 Declaration of Marc Sageman in Support of Plaintiffs' Opposition to Defendants' Cross−Motion for Summary Judgment. Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Stephen Durga Persaud, Steven William Washburn. (Related document(s): Response in Opposition to Motion, 267 .) (Shamsi, Hina) (Entered: 08/07/2015)
269 Declaration of James Austin in Support of Plaintiffs' Opposition to Defendants' Cross−Motion for Summary Judgment. Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Stephen Durga Persaud, Steven William Washburn. (Related document(s): Response in Opposition to Motion, 267 .) (Shamsi, Hina) (Entered: 08/07/2015)
270 Declaration of Amir Meshal in Support of Plaintiffs' Opposition to Defendants' Cross−Motion for Summary Judgment. Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Steven William Washburn. (Related document(s): Response in Opposition to Motion, 267 .) (Shamsi, Hina) (Entered: 08/07/2015)
271 Notice of Filing Under Seal of Plaintiff Kariye's Unredacted Opposition to Defts' Cross−Motion for Summary Judgment and Reply in Support of His Motion for Partial Summary Judgment Filed by Mohamed Sheikh Abdirahm Kariye (Shamsi, Hina) (Entered: 08/07/2015)
272 Response in Opposition to Motion for Partial Summary Judgment − (Redacted) Cross−Motion for Partial Summary Judgment and Opposition − Kariye 241 Oral Argument requested. Filed by Mohamed Sheikh Abdirahm Kariye. (Shamsi, Hina) Modified on 9/1/2015 to unseal document per Order 293 (ecp). (Entered: 08/07/2015)
273 Response in Opposition (Redacted) to Motion for Partial Summary Judgment − (Redacted) Cross−Motion for Partial Summary Judgment and Opposition − Kariye 241 Oral Argument requested. Filed by Mohamed Sheikh Abdirahm Kariye. (Shamsi, Hina) (Entered: 08/07/2015)
274 Notice of Filing Under Seal of Plaintiff Kashem's Unredacted Opposition to Defts' Cross−Motion for Summary Judgment and Reply in Support of His Motion for Partial Summary Judgment Filed by Faisal Nabin Kashem (Shamsi, Hina) (Entered: 08/07/2015)
275 Response in Opposition to Motion for Partial Summary Judgment − (Redacted) Cross−Motion for Partial Summary Judgment and Opposition − Kashem 242 Oral Argument requested. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by Faisal Nabin Kashem. (Shamsi, Hina) (Entered: 08/07/2015)
276 Response in Opposition (Redacted) to Motion for Partial Summary Judgment − (Redacted) Cross−Motion for Partial Summary Judgment and Opposition − Kashem

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242 Oral Argument requested. Filed by Faisal Nabin Kashem. (Shamsi, Hina) (Entered: 08/07/2015)
277 Notice of Filing Under Seal of Plaintiff Knaeble's Unredacted Opposition to Defts' Cross−Motion for Summary Judgment and Reply in Support of His Motion for Partial Summary Judgment Filed by Raymond Earl Knaeble, IV (Shamsi, Hina) (Entered: 08/07/2015)
278 Response in Opposition to Cross Motion for Partial Summary Judgment and Opposition to Plaintiff's Motion − Knaeble 246 Oral Argument requested. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by Raymond Earl Knaeble, IV. (Shamsi, Hina) (Entered: 08/07/2015)
279 Response in Opposition (Redacted) to Redacted Motion for Partial Summary Judgment and Opposition to Plaintiff's Motion − Knaeble 250 Oral Argument requested. Filed by Raymond Earl Knaeble, IV. (Shamsi, Hina) (Entered: 08/07/2015)
280 Notice of Filing Under Seal of Plaintiff Meshal's Unredacted Opposition to Defts' Cross−Motion for Summary Judgment and Reply in Support of His Motion for Partial Summary Judgment Filed by Amir Meshal (Shamsi, Hina) (Entered: 08/07/2015)
281 Response in Opposition to Cross Motion for Partial Summary Judgment and Opposition to Plaintiff's Motion − Meshal 243 Oral Argument requested. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by Amir Meshal. (Shamsi, Hina) (Entered: 08/07/2015)
282 Response in Opposition (Redacted) to Redacted Motion for Partial Summary Judgment and Opposition to Plaintiff's Motion − Meshal 247 Oral Argument requested. Filed by Amir Meshal. (Shamsi, Hina) (Entered: 08/07/2015)
283 Notice of Filing Under Seal of Plaintiff Washburn's Unredacted Opposition to Defts' Cross−Motion for Summary Judgment and Reply in Support of His Motion for Partial Summary Judgment Filed by Steven William Washburn (Shamsi, Hina) (Entered: 08/07/2015)
284 Response in Opposition to Cross Motion for Partial Summary Judgment and Opposition − Washburn 245 Oral Argument requested. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by Steven William Washburn. (Shamsi, Hina) (Entered: 08/07/2015)
285 Response in Opposition (Redacted) to Redacted Motion for Partial Summary Judgment and Opposition to Plaintiff's Motion − Washburn 249 Oral Argument requested. Filed by Steven William Washburn. (Shamsi, Hina) (Entered: 08/07/2015)
286 Notice of Filing Under Seal of Plaintiff Persaud's Unredacted Opposition to Defs' Cross−Motion for Summary Judgment and Reply In Support of His Motion for Partial Summary Judgment Filed by Stephen Durga Persaud (Genego, William) (Entered: 08/07/2015)
287 Response in Opposition to Cross Motion for Partial Summary Judgment and Opposition to Plaintiff's Motion − Persaud 244 Oral Argument requested. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by Stephen Durga Persaud. (Genego, William) (Entered: 08/07/2015)
288 Response in Opposition (Redacted( to Redacted Motion for Partial Summary Judgment and Opposition to Plaintiff's Motion − Persaud 248 Oral Argument requested. Filed by Stephen Durga Persaud. (Genego, William) (Entered: 08/07/2015)
289 ORDER: Granting Application for Special Admission Pro Hac Vice of Catherine A. Wagner for all Plaintiffs except Plaintiff Stephen Persaud. Application Fee in amount of $100 collected. Receipt No. 0979−4232605 issued. Signed on 8/10/2015 by Judge Anna J. Brown. (ecp) (Entered: 08/10/2015)
290 Notification of CM/ECF Account for Attorney Catherine A. Wagner (appearing Pro Hac Vice). Your login is: cawagner. Go to the CM/ECF login page to set your password. (ecp) (Entered: 08/10/2015)

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291 Notice of Attorney Withdrawal: Jennifer Pasquarella Filed by Abdul Hakeim Thabet Ahmed, Salah Ali Ahmed, Adama Bah, Nagib Ali Ghaleb, Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Ayman Latif, Ibraheim Y. Mashal, Amir Meshal, Elias Mustafa Mohamed, Samir Mohamed Ahmed Mohamed, Abdullatif Muthanna, Saleh A. Omar, Mashaal Rana, Halime Sat, Steven William Washburn (Wilker, Steven) (Entered: 08/10/2015)
292 Consent Motion to Unseal Documents and Information Relevant to Plaintiff Kariye. Filed by Mohamed Sheikh Abdirahm Kariye. (Wagner, Catherine) (Entered: 08/26/2015)
293 ORDER: The Court concurs with and, therefore, grants the parties' Consent Motion 292 to Unseal Documents and directs the Clerk to unseal in full the documents identified in the Motion. (bb) (Entered: 08/27/2015)
294 Motion for Extension of Time to File Reply Memoranda in Support of Cross−Motions for Summary Judgment. Expedited Hearing requested. Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Bowen, Brigham) (Entered: 09/14/2015)
295 Response in Opposition to Motion for Extension of Time to File Reply Memoranda in Support of Cross−Motions for Summary Judgment 294 . Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Stephen Durga Persaud, Steven William Washburn. (Shamsi, Hina) (Entered: 09/15/2015)
296 ORDER by Judge Anna J. Brown. The Court GRANTS Defendants' Motion 294 for Extension of Time to File Reply Memoranda in Support of Cross−Motions for Summary Judgment. As noted in its Order 258 granting in part Plaintiff's Motion 255 to Revise Case Management Schedule, the Court anticipated the possibility that Defendants would require additional time to respond to Plaintiffs' proffered expert testimony. The Court DENIES Plaintiffs' alternative request for leave to file surreply memoranda before oral argument with leave to renew at oral argument. If after the benefit of oral argument the Court determines supplemental briefing will be helpful, the Court will provide the parties with an opportunity to do so at that time. Accordingly, Defendants must file their Reply Memoranda in Support of Cross−Motions for Summary Judgment no later than October 14, 2015. The Court STRIKES the oral argument currently scheduled for October 19, 2015. The Clerk will contact the parties at a later date to re−schedule a firm date for oral argument. (bb) (Entered: 09/28/2015)
297 Scheduling Order by Judge Anna J. Brown. Oral Argument on pending motions is SET for 12/09/2015 at 9:00 AM in Courtroom 14A before Judge Anna J. Brown. (bb) (Entered: 10/08/2015)
298 Consent Motion for Extension of Time to File Reply Summary Judgment Memoranda, Consent Motion to File Excess Pages . Expedited Hearing requested. Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Bowen, Brigham) (Entered: 10/13/2015)
299 ORDER: The Court GRANTS Defendants' Consent Motion 298 for Extension of Time and to File Excess Pages. Defendants' reply memoranda must be filed no later than October 19, 2015. Defendants' combined reply memorandum must not exceed 45 pages. Ordered by Judge Anna J. Brown. (sm) (Entered: 10/13/2015)
300 Reply re: Kashem (filed under seal) to Motion for Partial Summary Judgment − (Redacted) Cross−Motion for Partial Summary Judgment and Opposition − Kashem 242 Oral Argument requested. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Bowen, Brigham) (Entered: 10/19/2015)
301 Reply re: Kashem (redacted public version) to Motion for Partial Summary Judgment − (Redacted) Cross−Motion for Partial Summary Judgment and Opposition − Kashem 242 Oral Argument requested. Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Bowen, Brigham) (Entered: 10/19/2015)

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302 Reply re: Washburn (filed under seal) to Cross Motion for Partial Summary Judgment and Opposition − Washburn 245 Oral Argument requested. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Bowen, Brigham) (Entered: 10/19/2015)
303 Reply re: Washburn (redacted public version) to Redacted Motion for Partial Summary Judgment and Opposition to Plaintiff's Motion − Washburn 249 Oral Argument requested. Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Bowen, Brigham) (Entered: 10/19/2015)
304 Reply re: All Plaintiffs to Cross Motion for Partial Summary Judgment and Opposition (All Plaintiffs) 251 . Filed by All Defendants. (Attachments: # 1 Attachment Declaration of EAD John Giacalone) (Powell, Amy) (Entered: 10/19/2015)
305 Reply re: Meshal (filed under seal) to Cross Motion for Partial Summary Judgment and Opposition to Plaintiff's Motion − Meshal 243 Oral Argument requested. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Bowen, Brigham) (Entered: 10/19/2015)
306 Reply re: Meshal (redacted public version) to Redacted Motion for Partial Summary Judgment and Opposition to Plaintiff's Motion − Meshal 247 Oral Argument requested. Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Bowen, Brigham) (Entered: 10/19/2015)
307 Reply re: Kariye to Motion for Partial Summary Judgment − (Redacted) Cross−Motion for Partial Summary Judgment and Opposition − Kariye 241 . Filed by All Defendants. (Powell, Amy) (Entered: 10/19/2015)
308 Reply re: Knaeble (filed under seal) to Cross Motion for Partial Summary Judgment and Opposition to Plaintiff's Motion − Knaeble 246 Oral Argument requested. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Bowen, Brigham) (Entered: 10/19/2015)
309 Redacted Reply re: Knaeble (redacted public version) to Redacted Motion for Partial Summary Judgment and Opposition to Plaintiff's Motion − Knaeble 250 Oral Argument requested. Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Bowen, Brigham) (Entered: 10/19/2015)
310 Reply re: Persaud (filed under seal) to Cross Motion for Partial Summary Judgment and Opposition to Plaintiff's Motion − Persaud 244 Oral Argument requested. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Bowen, Brigham) (Entered: 10/19/2015)
311 Redacted Reply re: Persaud (redacted public version) to Redacted Motion for Partial Summary Judgment and Opposition to Plaintiff's Motion − Persaud 248 Oral Argument requested. Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Bowen, Brigham) (Entered: 10/19/2015)
312 Notice of Supplemental Authority Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Stephen Durga Persaud, Steven William Washburn (Attachments: # 1 Exhibit A) (Shamsi, Hina) (Entered: 10/26/2015)
313 Motion for Partial Closure of Oral Argument Hearing. Expedited Hearing requested. Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Stephen Durga Persaud, Steven William Washburn. (Shamsi, Hina) (Entered: 12/02/2015)
314 Memorandum in Opposition to Motion for Partial Closure of Oral Argument Hearing 313 . Filed by All Defendants. (Powell, Amy) (Entered: 12/04/2015)
315 Order by Judge Anna J. Brown. The Court acknowledges receipt of Plaintiffs' Motion 313 for Partial Closure of Oral Argument and hereby advises counsel the Court will take argument on this Motion as the first order of business on 12/9/15. (bb) (Entered:

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316 MINUTES of Proceedings: Oral Argument heard on all pending motions. Motion for Partial Closure of Oral Argument hearing 313 denied as moot. Court directed the parties to each file, no later than 1/8/2016, a supplemental memorandum (not to exceed 10 pages not including the caption) that is limited to specifying how the parties expect a judicial review on the substantive decision made by the TSA Administrator to occur, in what forum, and in what context. The Court further directed the parties to advise the Court of their proposals for next steps in this action in the event the Court grants any party's motion in whole or in part. Hina Shamsi, Ahilan Arulanantham, Hugh Handyside, William Genego present as counsel for plaintiff(s). Brigham Bowen, Amy Powell present as counsel for defendant(s). Court Reporter: Amanda LeGore. Judge Anna J. Brown presiding. (bb) (Entered: 12/17/2015)
317 Notice of Attorney Substitution:Attorney Joel P. Leonard is substituted as counsel of record in place of Attorney Justine Fischer Filed by Stephen Durga Persaud (Leonard, Joel) (Entered: 12/18/2015)
318 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Oral Argument held on December 9, 2015 before Judge Anna J. Brown, Court Reporter Amanda LeGore, telephone number 503−326−8184. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 1/19/2016. Redaction Request due 2/1/2016. Redacted Transcript Deadline set for 2/11/2016. Release of Transcript Restriction set for 4/11/2016. (LeGore, Amanda) (Entered: 01/07/2016)
319 Supplement Supplemental Memorandum in Support of Defendants' Motion for Summary Judgment. Filed by All Defendants. (Powell, Amy) (Entered: 01/08/2016)
320 Supplement in Support of Plaintiffs' Renewed Motion for Partial Summary Judgment. Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Stephen Durga Persaud, Steven William Washburn. (Attachments: # 1 Exhibit A) (Shamsi, Hina) (Entered: 01/08/2016)
321 Opinion and Order. The Court GRANTS in part and DENIES in part Defendants Combined Cross−Motion 251 for Partial Summary Judgment; DENIES Plaintiffs Renewed Combined Motion 206 for Partial Summary Judgment; and DEFERS RULING on Defendants Cross−Motions (#241, #242, #247, #248, #249, #250) for Partial Summary Judgment regarding individual Plaintiffs and Plaintiffs individual Renewed Motions (#210, #212, #214, #216, #218, #220) for Partial Summary Judgment until Defendants supplement the record with sufficient information to rule on the individual cross−motions. No later than 4/18/2016, the Court directs Defendants to submit to the Court as to each Plaintiff the following: (1) a summary of any material information (including material exculpatory or inculpatory information) that Defendants withheld from the notice letters sent to each Plaintiff and (2) an explanation of the justification for withholding that information, including why Defendants could not make additional disclosures. Plaintiffs' response due no later than 5/9/2016. Signed on 03/28/2016 by Judge Anna J. Brown. See attached 62 page Opinion and Order for full text. (bb) (Entered: 03/28/2016)
322 Unopposed Motion for Extension of Time to File Supplemental Materials. Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Bowen, Brigham) (Entered: 04/08/2016)
323 ORDER by Judge Anna J. Brown. Granting Motion for Extension of Time 322 to File Supplemental Materials. No later than 5/02/2016, the Court directs Defendants to submit to the Court as to each Plaintiff the following: (1) a summary of any material information (including material exculpatory or inculpatory information) that Defendants withheld from the notice letters sent to each Plaintiff and (2) an explanation of the justification for withholding that information, including why Defendants could not make additional disclosures. Plaintiffs' response due no later than 5/23/2016. (bb) (Entered: 04/08/2016)
324 Notice of the Death of a Party Filed by Steven William Washburn (Shamsi, Hina) (Entered: 04/12/2016)

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325 Unopposed Motion for Extension of Time to File Supplemental Materials. Filed by All Defendants. (Powell, Amy) (Entered: 04/29/2016)
326 ORDER: The Court GRANTS Defendants' Second Unopposed Motion (#325) for an Extension of Time to File Supplemental Materials. No later than 5/05/2016, the Court directs Defendants to submit to the Court as to each Plaintiff the following: (1) a summary of any material information (including material exculpatory or inculpatory information) that Defendants withheld from the notice letters sent to each Plaintiff and (2) an explanation of the justification for withholding that information, including why Defendants could not make additional disclosures. Plaintiffs' response due no later than 5/26/2016. Ordered by Judge Anna J. Brown. (dls) (Entered: 04/29/2016)
327 Supplemental Memorandum in Support of Defendants' Motion for Summary Judgment. Filed by All Defendants. (Attachments: # 1 Declaration of Michael Steinbach) (Bowen, Brigham) (Entered: 05/05/2016)
328 Notice of Lodging Ex Parte, In Camera Materials Filed by All Defendants (Bowen, Brigham) (Entered: 05/05/2016)
329 Memorandum in Opposition to Defendants' Second Supplemental Memorandum. Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Stephen Durga Persaud. (Shamsi, Hina) (Entered: 05/26/2016)
330 Order by Judge Anna J. Brown. The Court makes this record to give notice to Plaintiffs that the Court has by separate Ex Parte Order filed with the Classified Information Security Officer directed Defendants to make a supplemental filing, ex parte and under seal if necessary, no later than August 1, 2016, regarding the materials referenced in Defendants' Notice 328 of Lodging Ex Parte, In Camera Materials. After the Court considers that filing, the Court will determine whether the record is then sufficient for the Court to resolve the parties' pending cross−motions and will inform the parties accordingly. (bb) (Entered: 07/07/2016)
331 Motion for Extension of Time to file supplemental submission. Filed by All Defendants. (Singer, Samuel) (Entered: 07/19/2016)
332 Scheduling Order by Judge Anna J. Brown. The Court notes Plaintiffs seek to file a response to Defendants' Motion 331 for Extension of Time. The Court directs Plaintiffs to file their response no later than July 25, 2016, at which time the Court will take Defendants' Motion under advisement. (bb) (Entered: 07/20/2016)
333 Response in Opposition to Motion for Extension of Time to file supplemental submission 331 . Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Stephen Durga Persaud. (Shamsi, Hina) (Entered: 07/25/2016)
334 ORDER by Judge Anna J. Brown. Notwithstanding Plaintiffs' Opposition 333 , which the Court has fully considered, the Court GRANTS Defendants' Motion 331 for Extension of Time to File Supplemental Materials. Defendants' supplemental memorandum is due no later than August 29, 2016. The Court is unable to provide any additional explanation on the record. (bb) (Entered: 08/03/2016)
335 Notice of Lodging Ex Parte, In Camera Materials Filed by All Defendants (Powell, Amy) (Entered: 08/29/2016)
336 Notice of Attorney Withdrawal: Alexandra Smith Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal (Shamsi, Hina) (Entered: 09/23/2016)
337 Order − Based on the Court's Opinion and Order 321 and this Order, the Court now GRANTS Defendants' Cross−Motions 241 , 242 , 247 , 248 , 249 , 250 for Partial Summary Judgment regarding individual Plaintiffs and DENIES Plaintiffs' individual Renewed Motions 210 , 212 , 214 , 216 , 218 , 220 for Partial Summary Judgment. Consistent with the Court's March 28, 2016, Order 321 , the Court directs the parties to submit a single, joint status report no later than October 20, 2016, with a proposed expedited briefing schedule for the Court to consider Defendants' argument that the revisions in the DHS TRIP procedures "effectively abrogate the Ninth Circuit's holdings that this Court has jurisdiction to continue to adjudicate Plaintiffs' remaining claims." Opinion and Order 321 at 61−62; Latif, 2016 WL 1239925, at *20. IT IS SO

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ORDERED. Signed on 10/6/2016 by Judge Anna J. Brown. (ecp) (Entered: 10/11/2016)
338 Consent Motion for Extension of Time to File Joint Status Report. Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Stephen Durga Persaud. (Shamsi, Hina) (Entered: 10/19/2016)
339 ORDER by Judge Anna J. Brown. Granting Motion for Extension of Time 338 . Joint Status Report to include a proposed briefing schedule to address the Court's jurisdiction to adjudicate Plaintiffs' remaining claims is now due 10/25/16. (bb) (Entered: 10/19/2016)
340 Joint Status Report . Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Stephen Durga Persaud. (Shamsi, Hina) (Entered: 10/25/2016)
341 Joint Status Report . Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Bowen, Brigham) (Entered: 11/15/2016)
342 Order by Judge Anna J. Brown. The Court GRANTS the parties' request to file a supplemental status report on or before 11/29/16. (bb) (Entered: 11/22/2016)
343 Joint Status Report . Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Bowen, Brigham) (Entered: 11/29/2016)
344 Order by Judge Anna J. Brown. The Court grants the joint request 343 of the parties for additional time to continue their conferral regarding jurisdictional issues, and the Court directs the parties to file no later than Noon on December 12, 2016, an updated Joint Status Report with a proposed schedule for next steps to move this matter forward. (bb) (Entered: 11/30/2016)
345 Joint Status Report . Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal. (Shamsi, Hina) (Entered: 12/12/2016)
346 Scheduling Order by Judge Anna J. Brown. The Court largely agrees with the parties' proposals in their Joint Status Report 345 . Accordingly, the Court orders as follows: The parties' joint statement of agreed facts as to this Court's ongoing jurisdiction is due no later than December 20, 2016. Defendants' anticipated motion to dismiss for lack of subject−matter jurisdiction and memorandum in support (which may not exceed 35 pages in length) are due no later than January 18, 2017. Plaintiffs' response memorandum (which may not exceed 35 pages in length) and anticipated jurisdictional discovery motion and memorandum in support (which may not exceed 10 pages in length) are due no later than February 13, 2017. Defendants' reply memorandum in support of the motion to dismiss (which may not exceed 20 pages) and response memorandum to Plaintiffs' jurisdictional discovery motion (which may not exceed 10 pages) are due no later than March 6, 2017. The Court directs the parties to ensure the pleadings related to Defendants' anticipated motion to dismiss and Plaintiffs' anticipated jurisdiction discovery motion are filed separately in order to ensure a clear record. (rr) (Entered: 12/20/2016)
347 Stipulation re Scheduling,,,, 346 − Stipulations Regarding Jurisdiction by Terrorist Screening Center, United States Department of Justice. Filed by Terrorist Screening Center, United States Department of Justice. (Bowen, Brigham) (Entered: 12/20/2016)
348 Motion to Dismiss for Lack of Jurisdiction . Oral Argument requested. Filed by Terrorist Screening Center, Federal Bureau of Investigation, United States Department of Justice. (Bowen, Brigham) (Entered: 01/18/2017)
349 Supplemental Declaration of Deborah O. Moore in Support of Defendants' Motion to Dismiss. Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Related document(s): Motion to Dismiss/Lack of Jurisdiction 348 .) (Bowen, Brigham) (Entered: 01/18/2017)
350 Declaration of Timothy P. Groh in Support of Defendants' Motion to Dismiss. Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Related document(s): Motion to Dismiss/Lack of Jurisdiction 348 .) (Bowen, Brigham) (Entered: 01/18/2017)

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351 Memorandum in Opposition to Motion to Dismiss for Lack of Jurisdiction 348 Oral Argument requested. Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Stephen Durga Persaud. (Shamsi, Hina) (Entered: 02/10/2017)
352 Motion for Discovery and/or Inspection Regarding Jurisdiction. Oral Argument requested. Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Stephen Durga Persaud. (Shamsi, Hina) (Entered: 02/10/2017)
353 Declaration of Hugh Handeyside . Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Stephen Durga Persaud. (Related document(s): Motion For Discovery/Inspection 352 .) (Shamsi, Hina) (Entered: 02/10/2017)
354 Reply to Motion to Dismiss for Lack of Jurisdiction 348 Oral Argument requested. Filed by Federal Bureau of Investigation, Terrorist Screening Center, United States Department of Justice. (Bowen, Brigham) (Entered: 03/06/2017)
355 Response in Opposition to Motion for Discovery and/or Inspection Regarding Jurisdiction 352 Oral Argument requested. Filed by Terrorist Screening Center, United States Department of Justice. (Bowen, Brigham) (Entered: 03/06/2017)
356 OPINION AND ORDER. The Court GRANTS Defendants' Motion #( 348 ) to Dismiss for Lack of Jurisdiction, which the Court construes as a Motion for Summary Judgment, and DENIES Plaintiffs' Motion #( 352 ) for Leave to Conduct Limited Jurisdictional Discovery. The Court directs the parties to confer and to submit to the Court no later than May 12, 2017, a proposed form of judgment that summarizes the Court's disposition of all issues litigated to date and that separately identifies those as to which the Court concludes it lacks jurisdiction to proceed. After the Court enters its concluding judgment, the Court will then consider any petition(s) for attorneys' fees. IT IS SO ORDERED. Signed on 4/21/2017 by Judge Anna J. Brown. (pvh) (Entered: 04/21/2017)
357 Joint Notice of Filing Proposed Form of Judgment Filed by All Defendants (Attachments: # 1 Proposed Document Proposed Form of Judgment) (Powell, Amy) (Entered: 05/12/2017)
358 Final Judgment. Signed on 6/9/2017 by Judge Anna J. Brown. (ecp) (Entered: 06/12/2017)
359 Consent Motion for an Order Setting the Deadline to Seek an Award of Attorneys' Fees and Costs. Filed by All Plaintiffs. (Shamsi, Hina) (Entered: 06/28/2017)
360 ORDER: The Court GRANTS the parties' Consent Motion (# 359 ) for an Order Setting the Deadline to Seek an Award of Attorneys' Fees and Costs. In light of the complexity of this case, the numerous Plaintiffs, and the largely joint nature of the representation of the Plaintiffs, the Court finds good cause to address attorneys' fees in a comprehensive manner after final judgment as to all Plaintiffs and after all appeals are exhausted. Accordingly, to the extent that any Plaintiff(s) intend to seek an award of attorneys' fees, the Court directs such Plaintiffs to file a single, comprehensive motion for attorneys' fees no later than 30 days after the entry of final judgment as to all Plaintiffs and the exhaustion of all appeals. (jy) (Entered: 07/06/2017)
361 Notice of Attorney Withdrawal: Catherine Wagner, Alan Schlosser, Julia Harumi Mass, and Mitchell Hurley Filed by All Plaintiffs (Shamsi, Hina) (Entered: 08/07/2017)
362 Notice of Appeal to the 9th Circuit Filing fee $505 collected; Agency Tracking ID 0979−5106446: . Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Stephen Durga Persaud. (Attachments: # 1 Exhibit 1) (Shamsi, Hina) (Entered: 08/07/2017)
USCA Case Number and Notice confirming Docketing Record on Appeal re Notice of Appeal 362 . Case Appealed to 9th Circuit Court of Appeals Case Number 17−35634 assigned. (jtj) (Entered: 08/09/2017)

08/24/2017 09/22/2017 01/08/2018 01/08/2018
03/22/2018
01/17/2019

363 Transcript Designation and Order Form for the hearing held on 3/17/2014 before Judge Anna J. Brown. Court Reporter: Amanda LeGore. regarding Notice of Appeal, 362 . Filed by Mohamed Sheikh Abdirahm Kariye, Faisal Nabin Kashem, Raymond Earl Knaeble, IV, Amir Meshal, Stephen Durga Persaud. Transcript is due by 9/25/2017. (Attachments: # 1 Attachment List of Designated Transcripts) (Shamsi, Hina) (Entered: 08/24/2017)
364 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Oral Argument held on March 17, 2014 before Judge Anna J. Brown, Court Reporter Amanda LeGore, telephone number 503−326−8184. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 9/29/2017. Redaction Request due 10/13/2017. Redacted Transcript Deadline set for 10/23/2017. Release of Transcript Restriction set for 12/21/2017. (LeGore, Amanda) (Entered: 09/22/2017)
365 Order from USCA for the 9th Circuit, USCA # 17−35634 re Notice of Appeal 362 . The appellants' motion (Docket Entry No. 10 ) to file the oversized opening brief submitted at Docket Entry No. 13 is granted. The appellants' unopposed motion (Docket Entry No. 12 ) to file Volume 4 of the excerpts of record under seal is granted. The Clerk shall publicly file the motion, the opening brief, and Volumes 1 through 3 of the excerpts of record, and shall file Volume 4 under seal. The answering brief is due within 30 days after the filing of the opening brief submitted at Docket Entry No. 13 . The optional reply brief is due 21 days after service of the answering brief. (jtj) (Entered: 01/08/2018)
366 Order from USCA for the 9th Circuit, USCA # 17−35634 re Notice of Appeal 362 . The opening brief 13 submitted by Faisal Nabin Kashem, Raymond Earl Knaeble, IV and Amir Meshal is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: blue. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate CM/ECF. The Court has reviewed the excerpts of record 11 , 16 submitted by Faisal Nabin Kashem, Raymond Earl Knaeble, IV and Amir Meshal. Within 7 days of this order, filer is ordered to file 4 copies of the excerpts in paper format, with a white cover. The paper copies must be in the format described in 9th Circuit Rule 30−1.6. (jtj) (Entered: 01/08/2018)
367 Order from USCA for the 9th Circuit, USCA # 17−35634 re Notice of Appeal 362 . Appellees' unopposed motion (DE 24 ) to file an oversized answering brief of 1,363 additional words is granted. The unopposed motion (DE 24 ) to file the unredacted answering brief under seal is granted. The opposed motion (DE 24 ) to submit classified supplemental excerpts of record ex parte and in camera is granted, without prejudice to raising in the reply brief the issue of whether those documents should be considered by the merits panel. The Clerk shall publicly file the motion, and shall file the unredacted answering brief under seal. Appellees shall submit for public filing a redacted answering brief within 14 days after the date of this order. No paper copies of the redacted brief will be required. The classified supplemental excerpts will not be filed on the docket, but will be made available to the merits panel upon request. The optional reply brief remains due within 21 days after service of the answering brief. (jtj) (Entered: 03/22/2018)
368 Order from USCA for the 9th Circuit, USCA # 17−35634 re Notice of Appeal, 362 . The parties are directed to submit supplemental briefs addressing the following issues: 1. Whether, in Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), the Supreme Court overruled the principle that "[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." Holder v. Humanitarian Law Project, 561 U.S. 1, 18−19 (2010) (quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982)). See Henry v. Spearman, 899 F.3d 703 (9th Cir. 2018), and Copeland v. Vance, 893 F.3d 101 (2d Cir. 2018); and 2. Whether the plaintiffs may challenge an unpublished government policy as void for vagueness under the Due Process Clause of the Fifth Amendment. See, e.g., Gilmore v. Gonzales, 435 F.3d 1125, 1135−36 (9th Cir. 2006). The government's supplemental brief shall be no longer than 12 pages or 3360 words and shall be filed no later than 21 days after the

01/17/2019
01/24/2019 02/21/2019 06/11/2019 08/12/2019
08/22/2019 10/21/2019 12/16/2019

entry of this order. The appellants supplemental brief shall be no longer than 12 pages or 3360 words and shall be filed no later than 21 days after filing of the government's brief. Submission of this case is vacated effective the date of this order. (jtj) (Entered: 01/17/2019)
369 Order from USCA for the 9th Circuit, USCA # 17−35634 re Notice of Appeal 362 . The government's January 16, 2019 motion (Docket Entry No. 53 ) to stay this courts January 15, 2019 order is granted in part and denied in part, as follows: 1. The January 15, 2019 order is stayed for 14 days from entry of this order or until Congress has appropriated funds for the Department of Justice, whichever is the shorter. In the event such funding is not restored within 14 days from entry of this order, the government may request a further stay from this court. 2. Counsel for the government shall notify this court as soon as Congress has appropriated funds for the Department of Justice. At that point, all deadlines for the filing of supplemental briefing set forth in the January 15, 2019 order shall be extended commensurate with the duration of the lapse in appropriations. (jtj) (Entered: 01/17/2019)
370 Notice of Attorney Withdrawal: of Former Assistant United States Attorney James E. Cox, Jr. Filed by All Defendants. (Gowie, Renata) (Entered: 01/24/2019)
371 Order from USCA for the 9th Circuit, USCA # 17−35634 re Notice of Appeal, 362 . The supplemental brief 55 submitted by appellees is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification (attached to the end of each copy of the brief) that the brief is identical to the version submitted electronically. Cover color: tan. The paper copies shall be submitted to the principal office of the Clerk. (jtj) (Entered: 02/21/2019)
372 Order from USCA for the 9th Circuit, USCA # 17−35634 re Notice of Appeal 362 . Mohamed Sheikh Abdirahman Kariye's unopposed motion to be dismissed from this appeal under Federal Rule of Appellate Procedure 42(b) (Dkt. 64) is GRANTED. This order constitutes the mandate as to Plaintiff−Appellant Mohamed Sheikh Abdirahman Kariye. (jtj) (Entered: 06/11/2019)
373 Order from USCA for the 9th Circuit, USCA # 17−35634 re Notice of Appeal 362 . Appellants' motion to file document under seal and submit sealed document, filed August 9, 2019 (Dkt. 70 ), is GRANTED. Appellants' motion to file motion for extension of time under seal, filed August 9, 2019 (Dkt 71 ), is GRANTED. Appellants' motion for an extension of time to respond to the court's August 2, 2019 order, filed August 9, 2019 (Dkt. 72 ), is GRANTED. The deadline is extended to August 16, 2019. (jtj) (Entered: 08/12/2019)
374 Order from USCA for the 9th Circuit, USCA # 17−35634 re Notice of Appeal 362 . The government's unopposed motion to extend time to file an opposition to the plaintiffs' motion to seal, filed August 21, 2019 (Dkt. 76), is GRANTED. Any opposition shall be filed on or before September 9, 2019. (jtj) (Entered: 08/22/2019)
375 USCA Opinion for the 9th Circuit, USCA #17−35634, re Notice of Appeal 362 . The decision of the District Court is: AFFIRMED. (Attachments: # 1 Post Judgment Form) (jtj) (Entered: 10/21/2019)
376 MANDATE Issued regarding ( 375 USCA Opinion for the 9th Circuit, USCA #17−35634, re Notice of Appeal 362 . The decision of the District Court is: AFFIRMED. (jtj) (Entered: 12/16/2019)

 
 Steven M. Wilker, OSB No. 911882 Email: steven.wilker@tonkon.com Tonkon Torp LLP 888 S.W. Fifth Avenue, Suite 1600 Portland, OR 97204 Telephone: 503.802.2040; Fax: 503.972.3740 Cooperating Attorney for the ACLU of Oregon
Ben Wizner (to be admitted pro hac vice) Email: bwizner@aclu.org Nusrat Jahan Choudhury (to be admitted pro hac vice) Email: nchoudhury@aclu.org American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Telephone: 212.519.7870; Fax: 212.549.2629
Kevin Díaz, OSB No. 970480 Email: kdiaz@aclu-or.org ACLU Foundation of Oregon PO Box 40585 Portland, OR 97240 Telephone: 503.227.6928; Fax: 503.227.6928
Ahilan T. Arulanantham (to be admitted pro hac vice) Email: aarulanantham@aclu-sc.org Jennifer Pasquarella (to be admitted pro hac vice) Email: jpasquarella@aclu-sc.org ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 Telephone: 213.977.9500; Fax: 213.977.5297
Alan L. Schlosser (to be admitted pro hac vice) Email: aschlosser@aclunc.org Julia Harumi Mass (to be admitted pro hac vice) Email: jmass@aclunc.org ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111 Telephone: 415.621.2493; Fax: 415.255.8437
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Laura Schauer Ives (to be admitted pro hac vice) Email: lives@aclu-nm.org ACLU Foundation of New Mexico P.O. Box 566 Albuquerque, NM 87103 Telephone: 505.243.0046; Fax: 505.266.5916
Reem Salahi (to be admitted pro hac vice) Email: rsalahi@salahilaw.com Salahi Law 429 Santa Monica Blvd, Suite 550 Santa Monica, CA 90401 Telephone: 510.225.8880 Cooperating Attorney for the ACLU of Southern California
Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

AYMAN LATIF, MOHAMED SHEIKH ABDIRAHMAN KARIYE, RAYMOND EARL KNAEBLE IV, STEVEN WASHBURN, NAGIB ALI GHALEB, SAMIR MOHAMED AHMED MOHAMED, ABDULLATIF MUTHANNA, SALEH A. OMAR, ADAMA BAH, HALIME SAT,
Plaintiffs,
v.
ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States; ROBERT S. MUELLER, III, in his official capacity as Director of the Federal Bureau of Investigation; and TIMOTHY J. HEALY, in his official capacity as Director of the Terrorist Screening Center,
Defendants.

Civil No. 10-CV-___________
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
(Violation of Fifth and Fourteenth Amendment Rights, the Immigration and Nationality Act, and the Administrative Procedure Act)

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INTRODUCTION 1. The United States' system of screening commercial airline passengers against databases of suspected terrorists is broken. Thousands of people have been barred altogether from commercial air travel without any opportunity to confront or rebut the basis for their inclusion, or apparent inclusion, on a government watch list known as the "No Fly List." The result is a vast and growing list of individuals whom, on the basis of error or innuendo, the government deems too dangerous to fly, but too harmless to arrest. Many of these individuals, like the Plaintiffs in this action, are citizens and lawful permanent residents of the United States; some, including three Plaintiffs in this action, are veterans of the United States Armed Forces. Some U.S. citizens and lawful permanent residents have been placed on the list while traveling abroad and therefore have found themselves stranded in foreign countries, without explanation or appropriate visas, unable to return home to their families, jobs, and needed medical care in the United States. The Constitution does not permit such a fundamental deprivation of rights to be carried out under a veil of secrecy and in the absence of even rudimentary process. 2. Ayman Latif, Raymond Earl Knaeble IV, Nagib Ali Ghaleb, Steven Washburn, Samir Mohamed Ahmed Mohamed, and Abdullatif Muthanna are U.S. citizens who were recently denied boarding on international flights to the United States and/or over U.S. airspace when seeking to return home to the United States from abroad. Mohamed Sheikh Abdirahman Kariye is a U.S. citizen who was recently denied boarding on a flight originating in the United States. Saleh Omar is a lawful permanent resident of the United States who was recently denied boarding on an international flight bound for the United States while seeking to return home to the United States from abroad. Adama Bah, a citizen of Guinea with refugee
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status in the United States, and Halime Sat, a lawful permanent resident of the United States, were recently denied boarding on flights originating in the United States.
3. Mr. Latif, Mr. Kariye, Mr. Knaeble, Mr. Ghaleb, Mr. Washburn, Mr. Mohamed, Mr. Muthanna, Mr. Omar, Ms. Bah, and Ms. Sat (collectively "Plaintiffs") believe that they are on the No Fly List. Agents of the Federal Bureau of Investigation or other U.S. officials have told Mr. Washburn, Mr. Knaeble, Mr. Latif, Mr. Ghaleb, Mr. Mohamed, Mr. Omar, Mr. Muthanna, and Ms. Sat that they are on the No Fly List. A police officer told Ms. Bah that she is on the No Fly List. The Plaintiffs do not know why they are on the No Fly List, nor how they can get off it. The Plaintiffs have flown numerous times to, from, and within the United States in recent years without incident.
4. Plaintiffs have submitted applications for "redress" through the only available government mechanism, to no avail. Each Plaintiff has sought explanations from the Department of Homeland Security and the Transportation Security Administration, but no government official or agency has offered any explanation for Plaintiffs' apparent placement on the No Fly List or any other watch list. Nor has any government official or agency offered any of the Plaintiffs any meaningful opportunity to contest his or her placement on such a list.
5. Through this action for declaratory and injunctive relief, Plaintiffs seek the removal of their names from any government watch list that has prevented them from flying. In the alternative, Plaintiffs seek a hearing in which they can confront any evidence against them and contest their unlawful designation.
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PARTIES 6. Plaintiff Ayman Latif is a thirty-two year-old U.S. citizen and disabled veteran of the U.S. Marine Corps. He was born and raised in Miami, Florida. Mr. Latif resides in Egypt with his wife and two children. He cannot return to the United States to attend a Disability Evaluation with the U.S. Department of Veterans Affairs or to visit family because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace. 7. Plaintiff Mohamed Sheikh Abdirahman Kariye is a forty-nine year-old naturalized U.S. citizen and resident of Portland, Oregon. He is the Imam at the Masjid AsSaber in Portland. He cannot visit his daughter, who resides in Dubai, because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace. 8. Plaintiff Raymond Earl Knaeble IV is a twenty-nine year-old U.S. citizen and U.S. Army veteran. He was born and raised in California. Mr. Knaeble is currently located in Colombia, where he recently traveled for his wedding and to visit relatives. Mr. Knaeble lost a job that was offered to him when he was unable to return home to the United States for a required pre-employment medical examination, because Defendants barred him from boarding a commercial flight to the United States. Mr. Knaeble thereafter sought to travel to the United States by flying to Mexico and entering the United States over land, but he was stopped and returned to Colombia by Mexican authorities. Upon information and belief, Mexican authorities deported Mr. Knaeble because of his inclusion on the No Fly List, as there was no known legal barrier to his being permitted to transit through Mexico. Mr. Knaeble cannot return to the United States to visit relatives, including his daughter in Texas, or to secure a job, because Defendants
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continue to bar him from boarding commercial flights to or from the United States or over U.S. airspace.
9. Plaintiff Steven Washburn is a fifty-four year-old U.S. citizen and U.S. Air Force veteran. Mr. Washburn was born and raised in Las Cruces, New Mexico. He was denied boarding by the Defendants on a commercial flight from the United Kingdom to the United States. Mr. Washburn thereafter attempted to fly from London to Mexico in order to enter the United States by land, but his flight was diverted back to London several hours after take-off. Upon information and belief, the airline diverted Mr. Washburn's flight from London to Mexico because of his inclusion on the No Fly List, as there was no known legal barrier to his being permitted to fly to, or transit through, Mexico. Mr. Washburn thereafter undertook a journey that lasted over fifty hours and required him to travel by plane from Dublin to Frankfurt, Frankfurt to São Paulo, São Paulo to Lima, Lima to Mexico City, and Mexico City to Ciudad Juarez; to endure hours of detention and interrogation by Mexican authorities in Mexico City and Ciudad Juarez; and to travel over land from Ciudad Juarez to Las Cruces, where he currently resides. He cannot see his wife, a Spanish citizen who is located in Ireland and is currently unable to secure a visa for travel to the United States, because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace.
10. Plaintiff Nagib Ali Ghaleb is a thirty-one year-old U.S. citizen and resident of San Francisco, California. Mr. Ghaleb is currently located in Sana'a, Yemen, where he recently traveled to visit members of his family. Mr. Ghaleb remains in Sana'a, cannot return home, and risks losing his job as a janitor in San Francisco because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace.
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11. Plaintiff Samir Mohamed Ahmed Mohamed is a twenty-three year-old U.S. citizen and resident of Lindsay, California. Mr. Mohamed is currently located in Sana'a, Yemen, where he traveled to visit his family in September 2009. He remains in Sana'a, cannot return home to California, and risks losing his job in a clothing store because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace.
12. Plaintiff Abdullatif Muthanna is a twenty-seven year-old U.S. citizen who resides in Rochester, New York. He suffers from serious medical conditions that require treatment by his general physician and specialists, all of whom are located in New York. Mr. Muthanna is currently located in southern Yemen, where he recently traveled to visit relatives. He remains in Yemen, cannot return home, and cannot receive needed medical care in the United States because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace.
13. Plaintiff Saleh A. Omar is a thirty-five year-old lawful permanent resident of the United States. He is currently located in Yemen, where he recently traveled to visit relatives. He cannot return to his home and job in the United States because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace. He fears that Defendants' actions will result in his involuntary exclusion from the United States for over 180 days, that the federal government may initiate removal proceedings against him as a result, and that Defendants' bar on his ability to return home by plane threatens to jeopardize his right to become a naturalized U.S. citizen.
14. Plaintiff Adama Bah is a twenty-two year-old citizen of Guinea who was granted refugee status in the United States in 2007. She resides in the city of New York, where she works as a caregiver to a family with two children and a disabled parent. She is unable to
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earn certain wages as a caregiver because Defendants have barred her from boarding commercial flights to or from the United States or over U.S. airspace.
15. Plaintiff Halime Sat is a twenty-eight year-old German citizen and lawful permanent resident of the United States. She was born in Bursa, Turkey and was raised in Cologne, Germany. Ms. Sat lives with her husband in Corona, California. She was recently prevented from attending a conference in the Bay Area and was forced to withdraw from an educational program in New York and to cancel plans to attend a family reunion in Germany because Defendants have barred her from boarding commercial flights to or from the United States or over U.S. airspace.
16. Defendant Eric H. Holder, Jr. is the Attorney General of the United States and heads the Department of Justice ("DOJ"), a department of the United States government that oversees the Federal Bureau of Investigation ("FBI"). The FBI in turn administers the Terrorist Screening Center ("TSC"), which was created to consolidate the government's approach to terrorism screening. The TSC develops and maintains the federal government's consolidated Terrorist Screening Database (the "watch list"), of which the No Fly List is a component. Defendant Holder is sued in his official capacity.
17. Defendant Robert S. Mueller is Director of the Federal Bureau of Investigation, which administers the TSC. Defendant Mueller is sued in his official capacity.
18. Defendant Timothy J. Healy is Director of the Terrorist Screening Center and is sued in his official capacity.
JURISDICTION AND VENUE 19. This is a complaint for injunctive and declaratory relief based upon civil rights violations committed by the Terrorist Screening Center, Federal Bureau of Investigation,
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and U.S. Department of Justice in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution, the Immigration and Nationality Act, and the Administrative Procedure Act.
20. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 702.
21. The Court has the authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.
22. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) because Defendants are officers of agencies of the United States sued in their official capacity and because this judicial district is where Plaintiff Mohamed Sheikh Abdirahman Kariye resides and where a substantial part of the events or omissions giving rise to the claim occurred.
FACTUAL ALLEGATIONS A. The Federal Government's Terrorist Watch List
23. In September 2003, Attorney General John Ashcroft established the Terrorist Screening Center to consolidate the government's approach to terrorism screening. The TSC, which is administered by the FBI, develops and maintains the federal government's consolidated Terrorist Screening Database (the "watch list"). TSC's consolidated watch list is the federal government's master repository for suspected international and domestic terrorist records used for watch list-related screening.
24. TSC sends records from its terrorist watch list to other government agencies that in turn use those records to identify suspected terrorists. For example, applicable TSC records are provided to the Transportation Security Administration ("TSA") for use by airlines in pre-screening passengers and to U.S. Customs and Border Protection ("CBP") for use in screening travelers entering the United States. Thus, while the TSC maintains and controls the
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database of suspected terrorists, it is the front-line agencies like the TSA that carry out the screening function. In the context of air travel, when individuals make airline reservations and check in at airports, the front-line screening agency, TSA, or the airline, conducts a name-based search of the individual to determine whether he or she is on a watch list.
25. Two government entities are primarily responsible for "nominating" individuals for inclusion in the terrorist watch list—the National Counterterrorism Center ("NCTC") and the Federal Bureau of Investigation. The NCTC, which is managed by the Office of the Director of National Intelligence, relies on information from other federal departments and agencies when including known or suspected international terrorists in its Terrorist Identities Datamart Environment ("TIDE") database. The NCTC reviews TIDE entries and recommends specific entries to the Terrorist Screening Center for inclusion in the watch list. TIDE is the source of all international terrorist identifier information included in the watch list. The FBI, in turn, nominates to the watch list individuals with suspected ties to domestic terrorism. TSC makes the final decision on whether a nominated individual meets the minimum requirements for inclusion into the watch list as a known or suspected terrorist and which screening systems will receive the information about that individual.
26. Defendant Healy, Director of the TSC, has testified that in evaluating whether an individual meets the criteria for inclusion on the consolidated watch list, the TSC determines whether the nominated individual is "reasonably suspected" of having possible links to terrorism. According to the TSC, "reasonable suspicion requires 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." Defendants have not stated publicly what
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standards or criteria are applied to determine whether an individual on the consolidated watch list will be placed on the No Fly List that is distributed to the TSA.
27. Under these standards, the number of records in the consolidated watch list has swelled to an estimated one million names, representing the identities and aliases of approximately 400,000 individuals. Once an individual has been placed on the watch list, the individual remains on the list until the agency that supplied the initial information in support of the nomination determines that the individual should be removed.
28. A 2007 GAO report found that the TSC rejects approximately one percent of nominations to the watch list.
29. In response to intelligence failures that permitted Nigerian citizen Umar Farouk Abdulmutallab, a would-be bomber, to fly from Amsterdam to Detroit on December 25, 2009, the Defendants have dramatically expanded the watch list as a whole and the No Fly List in particular. At a recent Senate hearing, Russell E. Travers, Deputy Director of the National Counterterrorism Center, stated that "[t]he entire federal government is leaning very far forward on putting people on lists," and that the watch list is "getting bigger, and it will get even bigger." B. Inadequacy of Redress Procedure
30. The government entities and individuals involved in the creation, maintenance, support, modification, and enforcement of the No Fly List, including Defendants, have not provided travelers with a fair and effective mechanism through which they can challenge their inclusion on the No Fly List.
31. An individual who has been barred from boarding an aircraft on account of apparent inclusion on the No Fly List has no clear avenue for redress, because no single government entity is responsible for removing an individual from the list. The TSC, which is
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administered by the FBI, does not accept redress inquiries directly from the public, nor does it directly provide final disposition letters to individuals who have submitted redress queries. Rather, individuals who seek redress after having been prevented from flying must complete a standard form and submit it to the Department of Homeland Security Traveler Redress Inquiry Program ("DHS TRIP"). The DHS TRIP Program provides each individual with a "Redress Control Number" associated with the individual's report. Yet it is the TSC that has responsibility for consulting with relevant agencies to determine whether an individual has been appropriately listed and should remain on the list.
32. Once TSC makes a determination regarding a particular individual's status on the watch lists, including the No Fly List, the front-line screening agency responds to the individual with a letter that neither confirms nor denies the existence of any terrorist watch list records relating to the individual. The government does not provide the individual with any opportunity to confront, or to rebut, the grounds for his possible inclusion on the watch list. Thus, the only "process" available to individuals who are prevented from boarding commercial flights is to submit their names and other identifying information to the Department of Homeland Security and hope that an unknown government agency corrects an error or changes its mind. C. Plaintiffs' Allegations
Ayman Latif 33. Plaintiff Ayman Latif is a U.S. citizen who was born and raised in Miami,
Florida. He is also a veteran of the U.S. Marine Corps. In 1999, the U.S. Department of Veterans Affairs determined that Mr. Latif was disabled as a result of serious injuries to his neck, back, and hips sustained during an auto accident during his final year of service as a Marine.
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34. Mr. Latif has worked for the U.S. government for more than fourteen years, both as a Marine and as an employee of the U.S. Postal Service.
35. In November 2008, Mr. Latif and his wife moved to Egypt. The couple first settled in Cairo, where they lived for about one year. Mr. Latif and his family then moved to Munifiyyah, a town located two hours outside of Cairo, where Mr. Latif studies Arabic.
36. After the birth of their daughter in October 2009, Mr. Latif and his wife planned to travel to Miami to visit relatives. Mr. Latif purchased tickets for himself and his family to travel from Cairo to Miami on Iberia Airlines with a change of aircraft in Madrid.
37. On the evening of April 13, 2010, Mr. Latif and his family went to the outdoor baggage scanning area for Iberia Airlines at Cairo International Airport to procure boarding passes for Iberia Airlines Flight 3735 from Cairo to Madrid and Flight 7001 from Madrid to Miami. Upon learning that the family was traveling to the United States, an airline employee took the family's passports and made a call on his cell phone. The airline employee returned the passports to Mr. Latif and escorted the family to a line for business class passengers. When Mr. Latif and his family reached the front of the line, a ticketing agent stated, "I'm sorry sir. We have just received a message from headquarters in Spain that you cannot board the plane."
38. Mr. Latif was surprised. He asked to speak to an Iberia Airlines supervisor. Mr. Latif explained that he and his family were U.S. citizens and that he knew of no reason why they would not be permitted to fly to the United States via Madrid. The supervisor stated that the U.S. Embassy, not Iberia Airlines headquarters in Spain, had sent the message that Mr. Latif was not permitted to board the flight. The supervisor stated that there was nothing he could do to assist Mr. Latif.
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39. Mr. Latif immediately called the U.S. Embassy in Cairo from his cell phone. He spoke to an official who instructed him to go to the U.S. Embassy the next morning for more information. The Iberia Airlines supervisor with whom Mr. Latif had spoken also called the U.S. Embassy and secured another embassy counselor on the phone. This counselor told Mr. Latif that he might be on a "TSA list" and also instructed him to go to the U.S. Embassy first thing the next morning.
40. Mr. Latif and his family left the airport and spent the night in a hotel located close to the U.S. Embassy.
41. The following morning, Mr. Latif went to the U.S. Embassy. After waiting for some time, he spoke to an embassy official and explained that he and his family had been denied boarding passes for Iberia Airlines Flights 3735 and 7001. The official stated that the U.S. Embassy had no information about why this had occurred and that he could not do anything about it. The counselor told Mr. Latif that embassy officials would look into the matter and asked him to be patient.
42. Mr. Latif returned to Munafiyyah with his family because he could not afford to pay for Cairo hotels while waiting for embassy officials to look into his situation.
43. Mr. Latif sought urgently to find out why he was denied the ability to board his Iberia Airlines flights. He called the offices of Congressman Kendrick Meek of the 17th Congressional District of Florida and of Bill Nelson and George Le Mieux, the United States Senators from the State of Florida.
44. On or around April 15, 2010, Mr. Latif completed a DHS TRIP form online. He was assigned Redress Control Number 2095199.
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45. At or around the same time, Mr. Latif called the U.S. Customs and Border Protection ("CBP") information line in Washington, D.C. and asked why he had been denied boarding on his Iberia Airlines flight. CBP supervisor Olga DeLeon told him that she could not assist him, but that he should call the U.S. Embassy in Cairo and ask to speak with the FBI Liaison.
46. Mr. Latif called the U.S. Embassy in Cairo and asked to be connected to the FBI Liaison. A government official listened to his complaint and said that she would forward it to the appropriate official.
47. That evening, Legal Attaché Hashim El-Gamil called Mr. Latif and told him that the FBI was investigating his case and that two FBI agents from Miami were traveling to Cairo to meet with him. Mr. El-Gamil explained that it could take several weeks to arrange a meeting between Mr. Latif and the FBI agents because the agents were facing difficulties in securing visas to travel to Egypt.
48. About one month later, a U.S. Embassy official called Mr. Latif and asked him to come to the embassy to speak with two FBI agents. At the meeting, one agent introduced herself to Mr. Latif as FBI Special Agent Janet Waldron. Agent Waldron and another FBI agent questioned Mr. Latif for at least four hours. Agent Waldron told Mr. Latif that he is on the No Fly List.
49. The next day, Agent Waldron and the other FBI agent questioned Mr. Latif for at least four hours. At the end of the interrogation, the agents told Mr. Latif that they would file a report with FBI Headquarters.
50. In or around the middle of May 2010, Mr. Latif's mother-in-law called him from Florida to tell him that she had received a piece of mail from the U.S. Department of
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Veterans Affairs ("VA") addressed to him. He asked her to open the letter. The letter was dated May 12, 2010 and stated that the "combined evaluation for all of your service-connected disabilities will drop from 50% to 20%" and that Mr. Latif's monthly benefit would accordingly be reduced from $899.00 to $293.00. Mr. Latif did not understand why the VA had decided to reduce its evaluation of his disability and the monthly rate of compensation that he would receive for his service-connected disabilities.
51. Mr. Latif called the VA. A VA officer indicated that Mr. Latif had been scheduled to attend a Disability Evaluation on April 15, 2010, which Mr. Latif had missed. Because he had been denied boarding on his April 13, 2010 Iberia Airlines flights to Madrid and Miami, Mr. Latif was not in Florida on April 15, 2010 and could not have attended the evaluation, which would have taken place in the Veterans Affairs hospital in his home town.
52. Ordinarily, if an individual misses a VA Disability Evaluation, the appointment is rescheduled for a later date. Mr. Latif has not been able to reschedule his Disability Evaluation, however, because he is unable to travel from Egypt to the United States to attend a rescheduled VA appointment due to his placement on the No Fly List.
53. On or around June 4, 2010, Mr. Latif completed a second DHS TRIP form online. He was assigned Redress Control Number 2100977.
54. On June 1, 2010, Mr. Latif went to the U.S Embassy in Cairo to speak to Mr. El-Gamil regarding the outcome of his interview with the two FBI Agents from Miami. Mr. El-Gamil indicated that the agents had submitted a report to FBI headquarters with a recommendation that Mr. Latif be granted a waiver to fly to the United States, but that FBI headquarters was not satisfied with the report. He told Mr. Latif that the FBI was sending two other FBI agents to Egypt to speak with Mr. Latif and to administer a polygraph test. Mr. Latif
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emphasized to Mr. El-Gamil that he was experiencing great hardship in not being able to fly to the United States, particularly because he was unable to travel to Florida to attend a rescheduled Disability Evaluation with the VA and because the VA decided to reduce his benefits as a result.
55. On June 29, 2010, Mr. Latif and his family moved from Munifiyyah to lower-cost housing in Alexandria, Egypt, due to the reduction in Mr. Lati's VA benefits.
56. Mr. Latif presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List.
57. To this day, Mr. Latif cannot return home to the United States. He has been denied the ability to travel by commercial airline from Cairo to the United States, via Madrid. He has been told by FBI agents that he will not be permitted to travel on any commercial flight to the United States. He knows of no way to travel from Egypt to the United States by boat. Because Defendants have barred Mr. Latif from boarding commercial flights to or from the United States or over U.S. airspace, he cannot visit family members in the United States or participate in a Disability Evaluation that would prevent his veterans' disability benefits from being drastically reduced.
Raymond Earl Knaeble IV 58. Plaintiff Raymond Earl Knaeble IV is a U.S. citizen who was born and
raised in Ventura and Santa Barbara, California. He is also a veteran of the U.S. Army. 59. In 2006, Mr. Knaeble moved to Kuwait to work for ITT Systems
Corporation ("ITT Systems"), a multinational company specializing in global defense and security.
60. In late 2008, Mr. Knaeble converted to Islam. From August 2009 to December 2009, he studied at the Saba Institute, a language school in Sana'a, Yemen that
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specializes in teaching Arabic to foreigners. Mr. Knaeble returned to Kuwait and created a website, www.islambrotherhood.com, to provide the public with information about Islamic beliefs and practices.
61. On March 1, 2010, ITT Systems offered Mr. Knaeble a position as a heavy mobile equipment mechanic/driver in Qatar. The effective date of employment was contingent upon Mr. Knaeble's passage of a pre-employment medical exam that was to be scheduled within days of acceptance of the offer. ITT Systems indicated that a medical exam administered in the United States would be processed more quickly than one administered in a foreign country.
62. Mr. Knaeble accepted the ITT Systems position in Qatar and scheduled his physical examination to take place in Killeen, Texas on March 16, 2010. Prior to moving to Qatar to start his new job, Mr. Knaeble planned to travel to Bogota, Colombia so that he could marry his fiancé, a Colombian citizen, and spend some time with her family and his relatives, including his grandfather and aunts. He also planned to visit his daughter in Texas and his mother and sisters in California while in the United States following his scheduled medical examination and before moving to Qatar with his new wife.
63. Mr. Knaeble booked airline tickets to travel first on Turkish Airlines and Iberia Airlines from Kuwait to Bogota, where he would spend several days for his wedding and visiting relatives, and then from Bogota to the United States. His itinerary for travel from Kuwait to Bogota included changes of aircraft in Istanbul, Barcelona, and Madrid. He chose this itinerary in order to book the lowest fares he could find from Kuwait to Bogota. His itinerary for travel from Bogota to the United States scheduled him to fly from Bogota to Miami on LAN Airlines and from Miami to Killeen on American Airlines with a change of aircraft in Dallas.
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64. On March 10 and 11, 2010, Mr. Knaeble flew from Kuwait to Bogota without incident.
65. On March 14, 2010, Mr. Knaeble went to Aeropuerto Internacional El Dorado in Bogota. An airline official denied Mr. Knaeble a boarding pass for LAN Airlines Flight 570 to Miami and told him that no airlines would permit him to board a flight bound for the United States. He was instructed to contact the U.S. Embassy in Bogota.
66. Mr. Knaeble went to the U.S. Embassy the following day. He spoke with Scott Renner, American Citizen Services Chief. Mr. Renner took Mr. Knaeble's passport and told him to return the next day to speak with FBI agents. Mr. Renner did not return Mr. Knaeble's passport that day. Mr. Knaeble returned to the U.S. Embassy on March 16, 2010. Embassy officials instructed him to return several days later.
67. Approximately four days later, Mr. Knaeble met with two FBI agents at the U.S. Embassy. The agents identified themselves only as "Charles" and "Loretta," despite Mr. Knaeble's repeated requests to see their identification and credentials. Charles and Loretta questioned Mr. Knaeble for six hours about his life before and after converting to Islam. Mr. Knaeble asked them when he would be permitted to return to the United States. The agents stated that they needed to relay his responses to their questions to officials in Washington, D.C., and that they would then be instructed as to whether Mr. Knaeble would be permitted to fly to the United States. Neither agent told Mr. Knaeble why he had been placed on the No Fly List or why they were questioning him.
68. Over the course of the following four weeks, Mr. Knaeble lived in hotels in Bogota and spoke regularly with FBI agents and U.S. Embassy officials in an effort to learn
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why he was not permitted to board a flight for the United States. He hoped that by cooperating with FBI and embassy officials, he would secure permission to fly.
69. On March 21, 2010, Mr. Knaeble received a letter from ITT Systems indicating that because he had not taken the required physical exam in Killeen as planned, the firm had withdrawn the offer it made to Mr. Knaeble for a position in Qatar.
70. On March 26, 2010, Mr. Knaeble completed a DHS TRIP form online. He was assigned Redress Control Number 2093292.
71. Due to the exorbitant cost of living in Bogota, Mr. Knaeble moved to Santa Marta, which is located on the coast of Colombia, to live with relatives while trying to sort out a way to return to the United States.
72. Sometime in April 2010, Mr. Knaeble received a call from Rodney Sanchez of the FBI. Agent Sanchez indicated that he was a member of the Dallas, Texas FBI office and that he wanted to question Mr. Knaeble.
73. On or around April 21, 2010, Scott Renner returned Mr. Knaeble's passport to him. Mr. Knaeble had been without a passport since March 15, 2010, the date on which Mr. Renner seized his passport.
74. On April 22, 2010, Mr. Knaeble told Agent Sanchez that he was being represented by an attorney at the Council on American-Islamic Relations. He asked the agent to call his attorney to discuss his situation and any further questions the FBI wanted to ask him. Agent Sanchez stated that he had been trying to help Mr. Knaeble return to the United States, but that since Mr. Knaeble had retained an attorney, he was no longer going to work on getting him a flight home. Agent Sanchez also stated that because Mr. Knaeble retained an attorney, Mr Knaeble was "closing all doors in the investigation."
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75. Mr. Knaeble remained desperate to return to the United States. On May 11, 2010, he purchased a ticket to fly from Santa Marta to Nuevo Laredo, Mexico, with stops in Bogota and Mexico City. He hoped to enter the United States over land by crossing the border between Nuevo Laredo and Laredo, Texas.
76. On May 12, 2010, Mr. Knaeble flew from Santa Marta to Bogota without incident, and from Bogota to Mexico City. When Mr. Knaeble landed in Mexico City, however, Mexican government agents were waiting for him at the gate of the plane. The agents questioned him for more than three hours about Islam, his activities in Yemen, and various Islamic groups to which Mr. Knaeble does not belong. One agent asked Mr. Knaeble what he was doing in Mexico. Mr. Knaeble explained that he was traveling to Nuevo Laredo where he would meet his father and travel to the United States. The agent responded that Mr. Knaeble would not be doing any more traveling in Mexico and that the only trip he would take would be back to Colombia. The authorities refused to allow Mr. Knaeble to board a flight from Mexico City to Nuevo Laredo or to travel by bus or any other means to the U.S.-Mexico border. The agents detained Mr. Knaeble for fifteen hours.
77. At around 3:00 P.M. the following day, the agents placed Mr. Knaeble on a flight back to Bogota. Mr. Knaeble was able to secure permission to stay in Colombia for two months.
78. Due to the high cost of living in Bogota, Mr. Knaeble returned to live with family members in Santa Marta.
79. Mr. Knaeble's authorization to stay in Colombia will expire on July 13, 2010. Mr. Knaeble does not want to violate Colombian law by remaining in that country without authorization. Although he may leave Colombia and apply for another two-month authorization
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at the border, Mr. Knaeble fears that doing so will subject him to arrest, detention, interrogation, and search, as was the case when he flew from Colombia to Mexico on May 12, 2010.
80. Mr. Knaeble presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List.
81. To this day, Mr. Knaeble cannot return home to the United States. He has been denied the ability to board a commercial flight from Bogota to the United States. He has been told by FBI agents that he is not permitted to travel on any commercial flight to the United States. Mexican authorities have prohibited him from entering Mexico and traveling to the United States by land. Mr. Knaeble is seeking a means to travel to the United States by boat, but the earliest practical opportunity to do so is to travel by cargo ship from Bogota to Florida in October 2010. He fears that Defendants will prevent him from returning to the United States by the time his authorization to remain in Colombia expires on July 13. Because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace, Mr. Knaeble lost a job with ITT Systems and is currently prevented from returning to his home country to secure other employment and to visit his family.
Steven Washburn 82. Plaintiff Steven Washburn is a U.S. citizen and veteran of the U.S Air
Force. In August 2008, Mr. Washburn and his wife decided to move to Riyadh, Saudi Arabia so that he could work for a technology company. After one and a half years in Saudi Arabia, the couple decided that life in Saudi Arabia did not suit them and that they wanted to move back to the United States.
83. In preparation for their move back to the United States, in January 2010, Mr. Washburn and his wife sold their home and all of their possessions and closed their bank
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accounts. The proceeds from these sales and their savings constituted their entire life savings. Mr. Washburn and his wife decided to take these life savings with them to the United States in cash.
84. Mr. Washburn and his wife purchased airline tickets to travel from Riyadh to Las Cruces, New Mexico, where his parents live. They planned to spend a one-week layover in Ireland during this trip so that they could visit Mr. Washburn's step-daughter, who was pregnant at the time.
85. The Washburns traveled from Riyadh to Dublin without incident. The couple then sought to continue their journey to the United States on February 5, 2010. That day, Mr. Washburn attempted to board Aer Lingus Flight 133 at Shannon Airport Ireland bound for Boston. At the check-in counter, an airline employee denied him a boarding pass. When Mr. Washburn asked why the boarding pass was denied, the employee responded that Mr. Washburn was on the No Fly List.
86. Mr. Washburn contacted the U.S. Embassy in Dublin to ask why he was denied boarding on Aer Lingus Airlines Flight 133. An embassy official replied that the U.S. Embassy did not know why someone would be on the No Fly List and did not have access to such information. Mr. Washburn explained that he and his wife were moving back to the United States from Saudi Arabia. He also explained that they could not return to Riyadh because they had sold their home there and because they no longer had valid visas to remain in Saudi Arabia. Embassy officials advised Mr. Washburn to fly to Canada or Mexico and to enter the United States by driving over land across the border.
87. Mr. Washburn was eager to return to the United States to re-establish a life there with his wife. He also knew that his visa to stay in Ireland would run out soon.
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88. Mr. Washburn purchased a new set of airline tickets to travel from Dublin to Ciudad Juarez, Mexico, with changes of aircraft in London and Mexico City. He planned to enter the United States by walking over a bridge located at the border between Ciudad Juarez and El Paso, Texas, as officials at the U.S. Embassy in Dublin had advised.
89. On February 12, 2010, Mr. Washburn flew from Dublin to London's Heathrow International Airport without incident on BMI Flight 120. He was permitted to board British Airways Flight 243 from London to Mexico City. The plane took off without incident. Approximately three and a half hours later, however, the aircraft turned around and flew back to Heathrow International Airport. Airline employees provided no explanation for the decision.
90. Upon information and belief, British Airways Flight 243 returned to London because, after Mr. Washburn had boarded the flight, federal government officials instructed airline officials not to fly over U.S. airspace with Mr. Washburn on board due to his placement on the No Fly List.
91. When British Airways Flight 243 landed at Heathrow, airport security and New Scotland Yard officials met Mr. Washburn at the gate. These officials escorted Mr. Washburn to a room where they detained and interrogated him for more than nine hours. Airport security and New Scotland Yard officials also photographed and fingerprinted Mr. Washburn and subjected him to a DNA test. They seized the life savings that Mr. Washburn carried with him. New Scotland Yard officials subsequently escorted Mr. Washburn to another aircraft, which took him back to Ireland.
92. Several days later, Mr. Washburn's visa to stay in Ireland expired. Irish authorities renewed Mr.Washburn's visa for 30 days so that he could legally remain in that country while determining how to return to the United States.
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93. Desperate to get his name off the No Fly List, Mr. Washburn telephoned the FBI in New Mexico to ask for help. FBI officials told him that they wanted to speak with him. Mr. Washburn agreed to meet with FBI officials at the U.S. embassy in Dublin. Mr. Washburn was subsequently interrogated three different times by FBI agents and voluntarily took a polygraph test. FBI agents told him that he had passed the polygraph test.
94. One FBI agent told Mr. Washburn that he had recommended that Mr. Washburn be given a one-time waiver to fly back to the United States, but that FBI Headquarters had not yet made a decision regarding the recommendation.
95. On March 13, 2010, Irish immigration authorities renewed Mr. Washburn's visa for 30 days and indicated that no further renewals would be granted.
96. On April 27, 2010, Mr. Washburn completed a DHS TRIP form online. He was assigned Redress Control Number 2096551.
97. Mr. Washburn researched whether he could travel by boat from Ireland to the United States. He could not locate a trans-Atlantic ship traveling from Europe to the United States until September. Mr. Washburn booked a new series of flights from Dublin to Ciudad Juarez, Mexico, with stops in Frankfurt, Germany; São Paulo, Brazil; Lima, Peru; and Mexico City. He hoped to enter the United States over land by crossing the border between Ciudad Juarez and El Paso, Texas.
98. Mr. Washburn flew without incident from Dublin to Frankfurt, from Frankfurt to São Paulo, São Paulo to Lima, and from Lima to Mexico City.
99. Mr. Washburn arrived in Mexico City International Airport at around 6:45 P.M. on May 21, 2010. At customs, Mr. Washburn was escorted to a separate room where he was detained and questioned by Mexican Federal Protection officers until 11:30 P.M. Mr.
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Washburn missed his connecting flight to Ciudad Juarez, which was scheduled to depart at 8:25 P.M.
100. At around 11:30 P.M., officers escorted Mr. Washburn to another room where he was detained overnight and not permitted to eat or drink anything except water.
101. At around 8:00 A.M. the next morning, Mexican Federal Protection officers escorted Mr. Washburn to an aircraft that transported him to Ciudad Juarez.
102. Mr. Washburn arrived at the Ciudad Juarez airport at around 11:00 A.M. and was met by three Mexican Federal Protection officers who took him to an office for questioning. The officers then took Mr. Washburn to a bridge on the U.S.-Mexico border and handed him off to U.S. Customs and Border Protection officers who were waiting for Mr. Washburn.
103. CBP officers escorted Mr. Washburn through a check point and took him to a facility where he was detained, handcuffed to a chair for several hours, and questioned for at least one hour. Officers searched Mr. Washburn's belongings and photographed and fingerprinted him.
104. At around 7:00 P.M., CBP officers released Mr. Washburn. 105. Mr. Washburn presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List. 106. Because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace, Mr. Washburn cannot visit is wife, who is a Spanish citizen and remains in Ireland because she currently lacks a visa for travel to the United States, or his step-daughter and her family who live in Dublin.
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Nagib Ali Ghaleb 107. Plaintiff Nagib Ali Ghaleb is a naturalized U.S. citizen and San Francisco
resident. He moved to the United States from Yemen in 1996. Mr. Ghaleb works in San Francisco as a janitor.
108. Mr. Ghaleb's wife and four children, one of whom is a U.S. citizen, live in Yemen. Several years ago, he submitted visa applications for his wife and three of his children so that they could immigrate to the United States. Their visa petitions were approved, but there has been a long delay in processing their immigrant visa paperwork.
109. Mr. Ghaleb traveled to Yemen to visit his family and to meet with the U.S. consul there in hopes of finding out the reason for the delay in processing his wife's and children's visa applications. Mr. Ghaleb planned to travel to Yemen in August 2009 and to return to San Francisco in February 2010 so that he could resume his work.
110. On August 17, 2009, Mr. Ghaleb flew from San Francisco to Sana'a without incident.
111. On February 16, 2010, Mr. Ghaleb flew on Yemenia Airlines from Sana'a to Frankfurt without incident.
112. At Frankfurt Airport, Mr. Ghaleb went to the check-in counter for United Airlines to secure a boarding pass for his United Airlines flight to San Francisco. An airline employee took his passport and asked him to sit down and wait. Some time later, several United Airlines supervisors arrived at the check-in counter.
113. After some time, two U.S. officials wearing suits arrived at the United Airlines check-in counter. Upon information and belief, the officials were FBI agents. One FBI agent told Mr. Ghaleb that he would not be permitted to board his United Airlines flight to San
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Francisco. Mr. Ghaleb was confused and asked if this was really true. The FBI agents confirmed that it was. Mr. Ghaleb asked if he could fly to San Francisco on a different flight. One FBI agent stated: "You cannot go to America at all." The U.S. officials left.
114. After some time, a German police officer arrived and escorted Mr. Ghaleb to a separate room for questioning. The police officer took Mr. Ghaleb's passport and searched him and his luggage. Another German officer arrived and questioned Mr. Ghaleb again. After Mr. Ghaleb had been searched and questioned for approximately three hours, a German police officer told him that he was free to go. Mr. Ghaleb told the officers that he had nowhere to go because he did not have any money to purchase a new ticket to fly back to Yemen. He explained that he had spent all of his money to purchase his ticket to fly from Frankfurt to San Francisco. The German officers told Mr. Ghaleb that Germany had no problem with him and that he was free to take a cab to the U.S. Embassy and to seek assistance there.
115. Mr. Ghaleb called a friend who worked at a travel agency in Yemen for help. His friend helped him secure an electronic ticket to fly from Frankfurt to Sana'a. Mr. Ghaleb flew back to Yemen the same day.
116. After arriving in Sana'a, Mr. Ghaleb went directly to the U.S. Embassy. He explained his situation to an embassy official and asked to speak with a consular official. Two consular officials, one who spoke Arabic and one who did not, escorted Mr. Ghaleb to a room where they questioned him for three hours. The consular official who did not speak Arabic photocopied Mr. Ghaleb's passport. He then told Mr. Ghaleb that it would be impossible for him to enter the United States. Mr. Ghaleb was shocked and confused. The Arabic-speaking consular official told Mr. Ghaleb in Arabic that he would explain what the other official had said. He stated that Mr. Ghaleb would not be permitted to board flights to the United States and asked
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Mr. Ghaleb: "What did you do wrong? You must be a terrorist." The Arabic-speaking consular official said jokingly: "You can take a car to the United States."
117. Approximately two weeks later, Mr. Ghaleb was contacted by an official from the U.S. Embassy in Sana'a and asked to come to the embassy for further questioning.
118. Mr. Ghaleb went to the U.S. Embassy on or around March 1, 2010. He was questioned for around one and one half hours by two officials, one of whom was the Arabicspeaking consular official who had questioned Mr. Ghaleb previously. Upon information and belief, the other official was an FBI agent. The interrogators knew what mosques Mr. Ghaleb attended in San Francisco and Oakland and that he was a highly regarded soccer player. They were aware that Mr. Ghaleb knew many people and that many people in the Bay Area Yemeni community knew him. The interrogators said that they knew Mr. Ghaleb lived in San Francisco and had been trying for a long time to bring his family to the United States. The consular official said: "We know how much you love America and we can make it easy for you to go back."
119. Mr. Ghaleb showed them a letter from his attorney, Kip Evan Steinberg, that introduced Mr. Steinberg as his attorney, and a letter from Mr. Steinberg to Senator Dianne Feinstein seeking assistance with Mr. Ghaleb's apparent placement on the No Fly List. The interrogators told Mr. Ghaleb that neither a lawyer nor Senator Feinstein could help him and that the only people who could help him were sitting in the room with him. They said it could take "years and years" for him to correct this problem "his way."
120. The interrogators offered to help Mr. Ghaleb if he would work with them. They offered to arrange for him to fly back to the United States immediately if he would agree to tell them who the "bad guys" were in Yemen and in San Francisco. Mr. Ghaleb refused, stating that he was not political and did not know about such things. The interrogators insisted that Mr.
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Ghaleb did know and could provide the names of people from his mosque and his community. One official emphasized that it would be impossible for no one in the Bay Area Muslim community to have spoken badly about the United States. He encouraged Mr. Ghaleb to report such instances to them, whether they took place in the United States or Yemen.
121. Mr. Ghaleb told the interrogators that he was not interested in spying in the Yemeni community. He stated: "I could give you false information about innocent people and claim they are the bad guys and help myself out of this situation, but these people will be harmed. Is this what you want?" Mr. Ghaleb raised his American passport and said: "What does this mean? I have rights. I am an American."
122. The interrogators told Mr. Ghaleb that if he did not cooperate, they would call the Yemeni government and have him arrested and sent to jail, where he would spend the rest of his life and never see his family or his home in America again. They advised him to "think about it" and indicated that he could call Vincent Lisi at the U.S. Embassy if he wanted to get in touch.
123. On or around March 2, 2010, Mr. Ghaleb submitted a completed DHS TRIP form online. He was assigned Redress Control Number 2089829.
124. Mr. Ghaleb received a letter dated April 6, 2010 from Jim Kennedy of the DHS Traveler Redress Inquiry Program stating that DHS had received his Traveler Inquiry Forms and supporting materials submitted through the TRIP system. The letter stated: "In response to your request, we have conducted a review of any applicable records in consultation with other Federal agencies, as appropriate. Where it was determined that a correction to records was warranted, these records were modified to address any delay or denial of boarding that you may have experienced as a result of the watch list screening process."
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125. On May 3, 2010, Mr. Ghaleb again attempted to fly home to San Francisco. He flew without incident on Emirates Airlines from Sana'a to Dubai. In Dubai International Airport, Mr. Ghaleb was not permitted to board his Emirates Airlines flight to San Francisco. Dubai police told Mr. Ghaleb that he was on the No Fly List and detained him for several days. They berated him for attempting to fly when he knew that he was on the No Fly List and asked him why he had come to the UAE. They then returned him to Yemen by plane.
126. Mr. Ghaleb called the FBI. An FBI officer told Mr. Ghaleb that he would be taken off the No Fly List if he would agree to become an FBI informant in the California Yemeni community.
127. Mr. Ghaleb's leave from his position as a janitor in San Francisco expired in February, and he fears that his job will be unavailable unless he returns home promptly.
128. Mr. Ghaleb presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List.
129. To this day, Mr. Ghaleb cannot return home to the United States. He has twice been denied the ability to travel by commercial airline from abroad to the United States. FBI agents have told Mr. Ghaleb that he will not be permitted to travel on any commercial flight to the United States or over U.S. airspace. He knows of no way to travel from Yemen to the United States by boat. Because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace, Mr. Ghaleb is unable to return home and risks losing his job in San Francisco.
Samir Mohamed Ahmed Mohamed 130. Plaintiff Samir Mohamed Ahmed Mohamed moved to the United States
from Yemen as a child and became a naturalized U.S. citizen in 1999. He lives in Lindsay,
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California, where he works in a clothing store. Mr. Mohamed's parents are both U.S. citizens who live in Buffalo, New York. Mr. Mohamed has eleven siblings, eight of whom are U.S. citizens who live in the United States.
131. Since he moved to the United States as a child, Mr. Mohamed has traveled to Yemen three times to visit family. Mr. Mohamed most recently traveled from Lindsay to Yemen in September 2009 to visit his wife and two children who live in Almasser, a city in southern Yemen. In April 2010, after spending several months with them, Mr. Mohamed booked a ticket on Saudi Arabian Airlines to return to the United States. He sought to fly on Saudi Arabian Airlines from Sana'a to New York with a change of planes at King Abdulaziz International Airport near Jeddah, Saudi Arabia so that he could visit his parents and other relatives in New York for two weeks before flying to Fresno, California.
132. On May 3, 2010, Mr. Mohamed flew on Saudi Arabian Airlines to King Abdulaziz International Airport without incident. At the airport, he went to board Saudi Arabian Airlines Flight 25 to John F. Kennedy International Airport. Mr. Mohamed proceeded through immigration with other passengers seeking to transfer to international flights. Saudi immigration officials took Mr. Mohamed's passport and asked him to wait. After some time, immigration officials took Mr. Mohamed downstairs to a room. An immigration official told him that the Saudi authorities received a message from U.S. authorities indicating that he was "not allowed on United States land." The official told Mr. Mohamed that he would not be permitted to fly to the United States and that the Saudi government would send him back to Yemen on a plane in two days, unless he purchased a ticket to return on an earlier flight.
133. It was clear to Mr. Mohamed that he could not stay in Saudi Arabia because he did not have a visa to remain in that country. It was also clear to him that he would
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not be permitted to fly as planned on Saudi Arabian Airlines Flight 25 from King Abdulaziz International Airport to New York. Mr. Mohamed purchased a ticket to fly from King Abdulaziz International Airport to Sana'a on May 4, the following day.
134. Mr. Mohamed missed his flight to Sana'a the following day. He called the emergency number for the U.S. Embassy in Jeddah and was transferred to a consular official. Mr. Mohamed explained to the official that he was a U.S. citizen without a visa to stay in Saudi Arabia and that he had been stuck in Jeddah for twenty-three hours because he was denied boarding on a Saudi Arabian Airlines Flight from King Abdulaziz International Airport to New York the previous day. The consular official told Mr. Mohamed that the U.S. Embassy did not know why he was not permitted to fly and asked Mr. Mohamed if he knew why this was the case. Mr. Mohamed replied that he had no idea why he was denied boarding the previous day. He asked the official if he was on a government watch list that denied him the ability to fly. The official responded that he did not know and that because Mr. Mohamed did not have a valid visa for Saudi Arabia, he was unable to push Saudi authorities to permit Mr. Mohamed to fly to the United States.
135. During the course of May 4, Mr. Mohamed called the U.S. Embassy several times and spoke to the same consular official. The official advised Mr. Mohamed to return to Yemen on the next available flight, which was scheduled to leave the following day. The official also told Mr. Mohamed that he would send a message to the U.S. Embassy in Yemen so that Mr. Mohamed would not have a problem entering Yemen.
136. On Wednesday, May 5, 2010, Mr. Mohamed flew to Sana'a without incident using the ticket for the May 4 flight that he had missed.
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137. After his arrival, he immediately went to the U.S. Embassy in Sana'a. There, Mr. Mohamed spoke to an official who made several phone calls to inquire on his behalf. The official told him to return the following Saturday.
138. On Saturday, May 8, 2010, Mr. Mohamed returned to the U.S. Embassy in Sana'a. There, he was interviewed by two government officials, one of whom introduced herself as "Michelle." Upon information and belief, the two government officials were FBI agents. At the end of the interview, the officials told Mr. Mohamed that they would call him in one week to let him know the outcome of the interview.
139. Mr. Mohamed never heard from the FBI agents. Over the course of the next few weeks, he went to the U.S. Embassy in Sana'a several times to see if he would be permitted to fly.
140. After about four weeks, Mr. Mohamed called the U.S. Embassy and reached one of the FBI agents who had interviewed him. The agent stated that he would call Mr. Mohamed back in one hour. One hour later, the agent called Mr. Mohamed and told him that he would not be permitted to fly on commercial airlines unless he provided the reason why he was placed on the government's No Fly List. Mr. Mohamed stated that he knew of no reason why he would be placed on the list and asked the official why his name appeared on the list. The agent stated that he could not tell Mr. Mohamed anything. Mr. Mohamed asked the agent what he should do to get home to the United States. The agent stated that he could not do anything else for him and could not advise him. He suggested that Mr. Mohamed go to the U.S. Embassy and speak with a counselor.
141. On or around June 8, 2010, Mr. Mohamed went to the U.S. Embassy in Sana'a to speak to a counselor. A U.S. Embassy employee told him that he was on a U.S. watch
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list and that he would not be permitted to board a commercial flight to the United States or over U.S. airspace.
142. On June 8, 2010, Mr. Mohamed submitted a completed DHS TRIP form. He was assigned Redress Control Number 2101514.
143. On or around June 17, 2010, Mr. Mohamed called one of the FBI agents who had questioned him on May 8, 2010 to see if there were any developments regarding his ability to fly. The agent told Mr. Mohamed that he was still on the No Fly List and that he did not know how long Mr. Mohamed would remain on the list. The agent stated that Mr. Mohamed could travel to the United States from Yemen by boat. He advised Mr. Mohamed to call him every week for any new information about his placement on the No Fly List.
144. Mr. Mohamed presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List.
145. To this day, Mr. Mohamed cannot return home to the United States. He has been denied the ability to travel by commercial airline from abroad to the United States. Mr. Mohamed has been told by a government official that he will not be permitted to travel on any commercial flight to the United States or over U.S. airspace. He knows of no way to travel from Yemen to the United States by boat. Because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace, Mr. Mohamed is unable to return to his job in a clothing store in California. He currently has no income and is borrowing money from others in order to support himself, his wife, and their two children.
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Abdullatif Muthanna 146. Plaintiff Abdullatif Muthanna is a naturalized U.S. citizen and resident of
Rochester, New York. Mr. Muthanna was born in Yemen and moved to the United States in 1996 to join his mother and step-father.
147. Mr. Muthanna works for a clothing store in Rochester to support his wife and four children, who live in southern Yemen several hours outside the city of Aden. He travels to southern Yemen every few years to spend time with his family.
148. Mr. Muthanna remains in the United States apart from his family in order to earn an income and to receive medical care for the serious medical conditions with which he has been diagnosed. Mr. Muthanna suffers from and receives treatment for digestive diseases and mental health conditions. His doctors, including his primary care physician, internist, and gastroenterologist, are all located in New York.
149. On June 18, 2009, Mr. Muthanna traveled from Rochester to southern Yemen without incident in order to visit his wife and children. He planned to return to the United States by plane by traveling on Saudi Arabian Airlines from Aden to New York with a change of aircraft in King Abdulaziz International Airport near Jeddah, Saudia Arabia.
150. On May 31, 2010 Mr. Muthanna traveled from Aden to King Abdulaziz International Airport without incident. He had a three-day transit visa to stay in Jeddah while waiting to board his flight from King Abdulaziz International Airport to New York, which was scheduled to depart on June 3, 2010.
151. On June 3, Mr. Muthanna went to King Abdulaziz International Airport to check in for Saudi Arabian Airlines Flight 0021 to New York. Mr. Muthanna presented his ticket receipt and identification to an airline employee at the check-in counter. The employee
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made a telephone call. Afterwards, he showed Mr. Muthanna his computer screen. The screen displayed Mr. Muthanna's name and flight number and indicated that there was no seat for Mr. Muthanna on the Saudi Arabian Airlines flight to New York. Mr. Muthanna was confused and asked for an explanation. The airline employee told him: "You are not allowed to fly to New York. You cannot fly."
152. The employee called officials from Saudi Arabian Immigration, who arrived at the check-in counter. An immigration official told Mr. Muthanna that he could not board his flight to New York and that he had to return to Yemen.
153. The official explained to Mr. Muthanna that because there was no flight scheduled to depart from King Abdulaziz International Airport for Yemen that day, he would have to stay in Jeddah and return the next morning.
154. Mr. Muthanna returned to King Abdulaziz International Airport on the morning of June 4, 2010. There was no airline flying from that airport to Yemen that day. Mr. Muthanna purchased a ticket to fly from a different airport in Jeddah to Sana'a on Yemenia Airways.
155. At the airport, a Saudi immigration official asked Mr. Muthanna for his passport and saw that his three-day transit visa for Saudi Arabia had expired on June 3 and that his passport lacked a visa for Yemen. The official told Mr. Muthanna that he would not be permitted to go through immigration to board his flight to Yemen. Mr. Muthanna explained that he had overstayed his Saudi Arabian transit visa by only one day because he was unexpectedly prevented from boarding his Saudi Arabian Airlines flight from King Abdulaziz International Airport to New York. He also explained that he did not have a visa for Yemen because he was on his way home to New York.
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156. Mr. Muthanna returned to King Abdulaziz International Airport to attempt to board a Saudi Arabian Airlines flight bound for Yemen. Once again, a Saudi immigration official would not let him pass through immigration to board his flight to Yemen because his three-day transit visa had expired and his passport lacked a valid visa for Yemen.
157. The immigration official told Mr. Muthanna that he was not validly in Saudi Arabia and that he could be arrested and detained on that ground. He said that Mr. Muthanna should return to the United States. Mr. Muthanna explained that he was trying to do precisely that, but that he had been denied boarding on his flight home to New York the day before.
158. After some time, a supervisor arrived at Immigration. Mr. Muthanna explained his situation. The supervisor made a copy of Mr. Muthanna's passport. He instructed him to speak with the U.S. Embassy in Sana'a. The supervisor told Mr. Muthanna that there was a Yemenia Airlines flight to Aden leaving that day.
159. Mr. Muthanna finally left Jeddah by flying on Yemenia Airlines to Sana'a. 160. After his arrival in Sana'a, Mr. Muthanna went to the U.S. Embassy. He was instructed to speak with the Legal Attaché. 161. The Legal Attaché introduced himself as Vincent Lisi. Mr. Lisi questioned Mr. Muthanna for about half an hour. Mr. Muthanna asked him if he was placed on a U.S. government list. Mr. Lisi stated that Mr. Muthanna was not on a "black list," but that he was on a government list reserved for people who were not permitted to fly. Mr. Lisi also stated that this list was reserved for people about whom the government needed information and that Mr. Muthanna would not be permitted to fly on commercial airplanes bound for the United States or over U.S. airspace. Mr. Muthanna asked if he could fly to Mexico or Canada and cross
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over land into the United States. The agent said that this would not be possible. He advised Mr. Muthanna to return to the United States by ship. Mr. Lisi told Mr. Muthanna that he would contact him in one week to let him know whether he could fly.
162. Mr. Muthanna called Mr. Lisi two days later to see if there was any information about his situation. Mr. Lisi instructed him to call back one week later.
163. Mr. Muthanna returned to the U.S. Embassy in Sana'a one week later. The Legal Attaché questioned him further about his time in Yemen. He again instructed Mr. Muthanna to call him back in one week for more information about his case.
164. One week later, Mr. Muthanna called Mr. Lisi. Again, Mr. Lisi questioned Mr. Muthanna. At the end of the conversation, Mr. Lisi again instructed Mr. Muthanna to call him back in one week.
165. Mr. Muthanna presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List.
166. To this day, Mr. Muthanna cannot return home to the United States. He has been denied the ability to travel by commercial airline from abroad to the United States. Mr. Mohamed has been told by a U.S. official that he will not be permitted to travel on any commercial flight to the United States or over U.S. airspace. He has searched for a way to travel from Yemen to the United States by boat and has not found any possibility of doing so. Because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace, Mr. Muthanna is unable to return to his job or to seek the medical attention he needs from his providers in Rochester. He currently has no income and is borrowing money from people in order to support himself, his wife, and their children.
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Saleh A. Omar 167. Plaintiff Saleh A. Omar is a thirty-five year-old citizen of Yemen who has
been a lawful permanent resident of the United States since March 19, 1996. He has lived and worked in Detroit for fourteen years. His father, three brothers, and uncle are all U.S. citizens.
168. Since becoming a lawful permanent resident of the United States, Mr. Omar has resided continuously in the United States with no extended absences. He meets the statutory definitions for a finding of "good moral character" and is eligible to apply for naturalization as a U.S. citizen.
169. Mr. Omar lives in Detroit and works in a mechanic shop to support his wife and three children, who live in Yemen. On December 7, 2009, Mr. Omar traveled to Yemen to visit his wife and children for a little over three months. He planned to return to his home and job in Detroit by flying from Sana'a to Detroit on March 8, 2010, with stops in Jeddah and New York.
170. On March 8, 2010, Mr. Omar traveled on Saudi Arabian Airlines Flight 681 from Sana'a to King Abdulaziz International Airport near Jeddah without incident. At the airport, Mr. Omar presented his passport in order to board Saudi Arabian Airlines Flight 25 to John F. Kennedy International Airport in New York. A Saudi immigration official stopped Mr. Omar and told him that he could not go to New York because his name was in their computer. Mr. Omar asked why this was the case, but he received no response. The official returned Mr. Omar's passport to him and his ticket to New York was canceled.
171. Mr. Omar stayed in Jeddah for approximately thirty hours and took the first available flight back to Yemen, on Saudi Arabian Airlines.
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172. After arriving in Sana'a, he asked a Saudi Arabian Airlines agent why he was unable to fly to New York and was told that his name was in their computer. The agent told Mr. Omar to go to the U.S. Embassy in Sana'a for more information. Mr. Omar went directly to the U.S. Embassy.
173. At the U.S. Embassy, Mr. Omar asked to speak with someone who could tell him why he was prevented from traveling to the United States on his Saudi Arabian Airlines flight. Mr. Omar spoke with an official who introduced himself as Dennis Brady. Upon information and belief, Mr. Brady is an agent of the FBI. Mr. Brady questioned Mr. Omar. During the questioning, another U.S. embassy official entered the room and told Mr. Omar: "You can never go to America." Mr. Omar was confused and concerned, and asked why. Mr. Brady and the U.S. Embassy official told Mr. Omar that his name is on the No Fly List, but did not provide any reason why. Mr. Omar explained that he had lost hundreds of dollars by not being able to use the ticket he had purchased to fly from Jeddah to New York. He asked the officials to show him the No Fly List. The embassy official again told him: "You cannot go to the United States of America. Never." Several days later, Mr. Omar called the U.S. Embassy in Sana'a to see if they had any more information about his situation. The embassy officials with whom he spoke provided no information.
174. Over the course of the next few weeks, Mr. Omar went to the U.S. Embassy in Sana'a two more times to find out why was denied boarding on his U.S.-bound flight at King Abdulaziz International Airport and for information about why his name was on the No Fly List. On at least one of these occasions, Mr. Omar met with and was questioned by Legal Attaché Vincent Lisi. Mr. Omar asked Mr. Lisi for help in returning home to Detroit so that he could get back to his job. He also asked when he would be permitted to travel to the United
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States. Mr. Lisi told Mr. Omar that he could not help him and that he would not be permitted to travel to the United States. Mr. Omar asked why. Mr. Lisi did not reply.
175. On June 16, 2010, Mr. Omar submitted a completed DHS TRIP form. He was assigned Redress Control Number 2102388.
176. Mr. Omar presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List.
177. To this day, Mr. Omar cannot return home to the United States. He has been denied the ability to travel by commercial airline from abroad to the United States. Mr. Omar has been told by U.S. officials that he will not be permitted to travel on any commercial flight to the United States or over U.S. airspace. He knows of no way to travel from Yemen to the United States by boat. Because Defendants have barred him from boarding commercial flights to and from the United States and over U.S. airspace, Mr. Omar is unable to return home and to resume working at his job in a mechanic shop, and fears that if he is absent from the United States in excess of 180 days since his departure to Yemen in December 2009, the government may seek to rescind his lawful permanent status, despite the fact that his absence is entirely involuntary. His extended absence may also jeopardize his right to naturalize as a U.S. citizen.
Mohamed Sheikh Abdirahman Kariye 178. Plaintiff Mohamed Sheikh Abdirahman Kariye is a U.S. citizen and
resident of Portland, Oregon. He is also the imam, or religious leader, of Masjid As-Saber, which is also known as The Islamic Center of Portland.
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179. In early 2010, Mr. Kariye sought to visit his daughter, who is a high school student in Dubai. He booked tickets to travel by plane from Portland to Dubai, with a change of aircraft in Amsterdam.
180. On March 8, 2010, Mr. Kariye went to Portland International Airport to check in for his Delta Airlines Flight to Amsterdam. He gave his passport and airline ticket receipts to the Delta employee at the check-in counter. Several minutes later, the airline employee asked Mr. Kariye to wait. After some time, Mr. Kariye asked the Delta Airlines employees at the check-in counter what was taking so long. They did not answer his question.
181. After at least two hours had passed, a police officer, detective, and U.S. marshal approached Mr. Kariye at the counter. Two other government officials also approached Mr. Kariye, but stood a little farther away from him. Upon information and belief, those two officials were agents of the FBI.
182. A Delta Airlines employee told Mr. Kariye: "You cannot fly. You cannot board the plane." Mr. Kariye expressed confusion and insisted to know why. The employee replied: "You are on a government list." Mr. Kariye asked why he had been put on the list. He explained that he had flown to Dubai from Portland as recently as July 2009 and from Portland to Chicago and back as recently as October 2009. The Delta Airlines employee said that she did not know and could not help him further.
183. The police officer approached Mr. Kariye and stated that Delta Airlines did not want him near the check-in counter. Mr. Kariye asked the officer and agents why he was not permitted to fly and reiterated that he had flown as recently as July 2009 and October 2009. The officer and agents said that they could not explain to him why he could not fly and that he had to leave the area.
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184. On May 3, 2010, Mr. Kariye submitted a completed DHS TRIP form. He was assigned Redress Control Number 2097225.
185. Several years earlier, on September 10, 2002, Mr. Kariye was arrested on a sealed indictment in Portland International Airport by an FBI-led Joint Terrorism Task Force while attempting to board a plane bound for Dubai with his brother and four children. At the time, Mr. Kariye was traveling to Dubai to assume a teaching position. A senior customs inspector alleged that there were trace amounts of TNT in two of the bags carried by Mr. Kariye's brother. Although no bombs were found in the luggage, Mr. Kariye was subsequently held without bail. After five weeks of detention, Mr. Kariye was released when lab tests showed there were no traces of any explosives. He was never charged with any explosives-related violations. Salim Jiwa and Mike Gudgell, Muslim Cleric Released in Portland, ABC News, Oct. 11, 2002, at http://abcnews.go.com/US/story?id=91141&page=1.
186. Mr. Kariye presents no security threat to commercial aviation and knows of no reason why he would be placed on the No Fly List.
187. To this day, Mr. Kariye cannot board commercial airlines to or from the United States or over U.S. airspace. Because Defendants have barred him from boarding commercial flights to or from the United States or over U.S. airspace, he cannot visit his daughter in Dubai or escort his elderly mother from Portland to Mecca, Saudi Arabia so that she can complete the Hajj pilgrimage, which is a requirement of the Muslim faith, in late 2010 as planned.
Adama Bah 188. Plaintiff Adama Bah is a citizen of Guinea who moved to the United
States with her family when she was two years old. In 2007, Ms. Bah was granted political
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asylum on the ground that she would be subject to persecution if deported to Guinea. She currently lives in New York.
189. Since 2008, Ms. Bah has worked in New York as a caregiver for two children and their mother, who is paralyzed from the waist down. Her duties include accompanying the family on their vacations and other trips to care for the children and their mother.
190. In March 2010, Ms. Bah's employers requested that she travel with them to Chicago on a trip to visit a relative suffering from cancer. They purchased tickets for her to travel to Chicago's O'Hare International Airport on American Airlines.
191. On March 31, 2010, Ms. Bah went to LaGuardia Airport to board American Airlines Flight 327 bound for Chicago. She attempted to check in at the automatic ticket window but received the message "See an agent."
192. Ms. Bah asked an airline employee to help. An American Airlines employee scanned her ticket receipt and pulled something up on a computer. An alert appeared on the screen. The employee stated: "I have to call my supervisor. We have to work this out."
193. An American Airlines supervisor and a female Port Authority officer arrived. The Port Authority officer told Ms. Bah that she is on the No Fly List. Several other officers and government officials arrived.
194. The Port Authority officer asked Ms. Bah: "Do you have any idea why this is happening?" Ms. Bah responded that she had been detained by immigration authorities as a teenager but had been released without ever being charged with a crime.
195. At the American Airlines check-in counter, an airline employee informed Ms. Bah that she is on the No Fly List.
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196. FBI Special Agent Marc Fenichel and New York Police Department Detective Jon McCormack arrived at the airport, and Ms. Bah met with them in a private room, accompanied by counsel, who had also arrived. The agents did not explain why Ms. Bah was not permitted to fly.
197. When Ms. Bah was sixteen years old, she was arrested and detained on immigration grounds, because her childhood visa was no longer valid. She was held for six weeks in a juvenile detention center and faced deportation proceedings, but was permitted to remain in the United States after being granted asylum. Ms. Bah has never been charged with any crime.
198. On April 26, 2010, Ms. Bah submitted a completed DHS TRIP form. She was assigned Redress Control Number 2096479.
199. Ms. Bah presents no security threat to commercial aviation and knows of no reason why she would be placed on the No Fly List.
200. To this day, Ms. Bah cannot board a commercial airline in the United States. Ms. Bah has been told by an airline employee that she will not be permitted to travel on any commercial flight in the United States. Because Defendants have barred her from boarding commercial flights to or from the United States or over U.S. airspace, Ms. Bah has lost the opportunity to earn wages that she would otherwise earn by providing caregiver services to her employer's family during their business or personal trips outside of New York City that involve plane travel.
Halime Sat 201. Plaintiff Halime Sat is a twenty-eight year-old German citizen and lawful
permanent resident of the United States. She was born in Bursa, Turkey and raised in Cologne,
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Germany. She is a resident of Corona, California, and has lived in the United States for approximately two years. She is married to a U.S.-born citizen.
202. Ms. Sat traveled by plane without incident as recently as December 2009 on a flight to St. Louis, Missouri.
203. On April 23, 2010, Ms. Sat and her husband were scheduled to fly from Long Beach, California to Oakland, California on JetBlue Airways Flight B6 250 to attend a conference. When Ms. Sat attempted to check in at the electronic kiosk, she was unable to do so. She went to the check-in counter and realized that her ticket had been booked incorrectly as "Halime Sat Mustafa." "Mustafa" is the first name of Ms. Sat's husband, Mustafa Umar. JetBlue Manager Juan Gonzales told Ms. Sat that it would be no problem to change the name on her ticket to her correct name. He changed the name on the ticket to "Halime Sat" and said that he had to "clear it with security."
204. Upon information and belief, Mr. Gonzales called the JetBlue security desk and the security desk told him to speak to a federal agent in Washington, D.C. Mr. Gonzales was on the phone for approximately one hour on hold with the agency waiting for information or clearance.
205. Meanwhile, Mr. Gonzales recommended that Ms. Sat's husband proceed to the gate so that he would not miss the flight. He did so and decided to wait for his wife by the gate until the final boarding call, hoping that she would receive clearance in time to join him and board the plane. Her husband informed the gate agents that he was waiting for his wife and would board just before they were ready to close the gate. The agents agreed to allow him to wait. He waited by the gate for ten minutes until the gate agents received a message by radio. The agents then promptly shut the gate and would not allow him to board the plane. When he
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asked them why, the agents responded that they were ordered not to allow him to board the plane. Ms. Sat's husband then returned to the ticket counter where she continued to wait.
206. At that point, Mr. Gonzales informed Ms. Sat and her husband that Ms. Sat was on the No Fly List and that because their tickets were booked together, he was not allowed to fly, either.
207. Shortly thereafter, an airport police officer approached Ms. Sat and her husband. He asked Ms. Sat's husband for his identification. The officer read his name over his radio and at least five police or airport security officers came and surrounded Ms. Sat and her husband.
208. The officers asked Ms. Sat and her husband to sit down in the check-in area lounge. The officers watched over Ms. Sat and her husband in the lounge. They did not inform Ms. Sat or her husband of any reason for Ms. Sat's placement on the No Fly List, for preventing them both from boarding their scheduled flight, or for their detention at the airport. Ms. Sat and her husband were embarrassed and humiliated by this experience.
209. Approximately one half hour to an hour later, FBI Agents David Gates and Douglas M. Swain arrived. The agents told Ms. Sat and her husband that Ms. Sat was on the No Fly List. The agents asked Ms. Sat about the origin of her last name and about when the couple had last traveled by plane. The couple refused to answer any additional questions without the assistance of a lawyer.
210. On April 28, 2010, Ms. Sat completed a DHS TRIP form online. She was assigned Redress Control Number 2096525.
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211. On May 10, 2010, Ms. Sat also submitted a Freedom of Information Act and Privacy Act request to the FBI, DHS, and Immigration and Customs Enforcement for information pertaining to her nomination to the No Fly List.
212. On June 7, 2010, counsel for Ms. Sat spoke with FBI Agent David Gates who confirmed that Ms. Sat has a "real match" and is on the No Fly List.
213. On June 14, 2010, counsel for Ms. Sat sent a complaint to the TSA Ombudsman's office regarding Ms. Sat's placement on the No Fly List, but has received no response.
214. Ms. Sat presents no security threat to commercial aviation and knows of no reason why she would be placed on the No Fly List.
215. To this day, Ms. Sat cannot board a commercial flight in the United States. Ms. Sat has been told by an FBI agent that she is on the No Fly List and will not be permitted to travel on any commercial flight to or from the United States or over U.S. airspace. Because Defendants have barred her from boarding commercial flights to or from the United States or over U.S. airspace, Ms. Sat was unable to attend a conference in the Bay Area, was forced to withdraw from a competitive educational course in New York City that was to commence at the end of June and to which she was accepted, was forced to cancel her plans to attend her family reunion in Germany in July, and was forced to cancel her plans to travel to Mecca, Saudi Arabia to perform the Hajj pilgrimage in October. * * * * * * * * * * * * * * *
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CLAIMS COUNT I FAILURE TO PROVIDE NOTICE AND HEARING Procedural Due Process (Fifth Amendment) 216. Defendants' actions deprive Plaintiffs of constitutionally protected liberty interests, including but not limited to those identified below. 217. Plaintiffs have a liberty interest in traveling free from unreasonable burdens within, to, or from the United States, or over U.S. air space. 218. Plaintiffs have the right to be free from false governmental stigmatization as individuals associated with terrorist activity, when such harm arises in conjunction with the deprivation of their right to travel on the same terms as other travelers. 219. Plaintiffs have the right to be free from false governmental stigmatization as individuals associated with terrorist activity, when such harm arises in conjunction with the deprivation of their liberty interest under the Fifth Amendment to travel free from unreasonable burdens. 220. Plaintiffs have a liberty interest in nonattainder (i.e., the interest against being singled out for punishment without trial). Defendants' actions have singled out Plaintiffs for punishments that include, but are not limited to, the inability to travel by air to the United States, from the United States, and over U.S. airspace, effective banishment from the United States, and effective expatriation from the United States. 221. Plaintiff Omar, a lawful permanent resident (LPR) with continual residence in the United States, has a liberty interest in maintaining his LPR status and a right— both statutory and constitutional—not to have his LPR status revoked, modified, or altered
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without due process of law. Defendants have deprived Mr. Omar of these rights by preventing him from returning to the United States and by preventing him from returning before the expiration of 180 days from the date of his departure from the United States.
222. Plaintiff Omar also has a liberty interest in not having his eligibility for naturalization revoked, modified, or altered without due process of law. Defendants have deprived Mr. Omar of these rights by preventing him from returning to the United States and by preventing him from returning before the expiration of 180 days and the expiration of one year from the date of departure from the United States.
223. Plaintiffs are entitled to a legal mechanism that affords them notice and an opportunity to contest their inclusion on terrorist watch lists.
224. Plaintiffs are entitled to a legal mechanism that affords them notice and an opportunity to contest the deprivation of their liberty interests, including but not limited to their liberty interests in traveling, freedom from false stigmatization, and nonattainder due to their inclusion on terrorist watch lists that prevent them from flying on commercial airplanes.
225. Defendants have violated Plaintiffs' rights without affording them due process of law and will continue to do so into the future if Plaintiffs are not afforded the relief demanded below. * * * * * * * * * * * * * * * * * * * * * * * * *
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COUNT II VIOLATION OF U.S. CITIZENS' RIGHT TO RESIDE IN UNITED STATES AND
TO REENTER THE UNITED STATES FROM ABROAD Right to Citizenship (Fourteenth Amendment)
(Plaintiffs Latif, Knaeble, Ghaleb, Mohamed, and Muthanna against Defendants) 226. Defendants' actions described herein deprive Plaintiffs Latif, Knaeble,
Ghaleb, Mohamed, and Muthanna of rights guaranteed by the Fourteenth Amendment to the U.S. Constitution.
227. Plaintiffs Latif, Knaeble, Ghaleb, Mohamed, and Muthanna are U.S. citizens and therefore have an absolute right to reside in the United States and to return to the United States from abroad.
228. Defendants have violated and continue to violate Plaintiffs' Fourteenth Amendment right to U.S. citizenship by depriving them of their rights or the full effect of their rights to reside in the United States and to reenter the United States from abroad by preventing them from boarding commercial flights to the United States or over U.S. airspace, even though Plaintiffs have no other practicable means of returning to the United States.
229. Upon information and belief, Defendants also violated Plaintiff Knaeble's Fourteenth Amendment right to U.S. citizenship by depriving him of his right or the full effect of his right to reside in the United States and to reenter the United States from abroad by causing Mexican authorities to deport him to Colombia after his arrival in Mexico City due to his placement on a U.S. government watch list that prevented him from boarding commercial flights to the United States or over U.S. airspace.
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COUNT III FAILURE TO PROVIDE NOTICE OF IMMIGRATION CHARGES AND REMOVAL
HEARING; VIOLATION OF THE IMMIGRATION AND NATIONALITY ACT 8 U.S.C. § 1229a and 8 U.S.C. § 1101(a)(20) (Plaintiff Omar against Defendants)
230. Defendants' actions described herein deprive Plaintiff Omar of rights guaranteed by the Immigration and Nationality Act (INA).
231. As a lawful permanent resident, Plaintiff Omar has been "lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws." 8 U.S.C. § 1101(a)(20).
232. Defendants cannot deprive Mr. Omar of the privilege of residing permanently in the United States without charging him and providing him a removal hearing before an immigration judge, in accordance with the procedures set forth in 8 U.S.C. § 1229a.
233. Defendants have violated the INA by excluding Mr. Omar from and preventing his return to the United States without charge and without providing him a removal hearing.
COUNT IV UNLAWFUL AGENCY ACTION
5 U.S.C. §§ 702, 706 234. Defendants' actions described herein were and are arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional rights, power, privilege, or immunity, and should be set aside as unlawful pursuant to 5 U.S.C. § 706.
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235. Defendants' violations of Plaintiffs' constitutional and statutory rights

constitute agency actions that are arbitrary, capricious, an abuse of discretion, otherwise not in

accordance with law, and contrary to constitutional rights, power, privilege, or immunity in

violation of 5 U.S.C. § 706.

PRAYER FOR RELIEF

WHEREFORE,

Plaintiffs respectfully request the following relief:

a. A declaratory judgment that:

i. Defendants' policies, practices, and customs violate the Fifth Amendment

to the United States Constitution and the Administrative Procedure Act;

ii. Defendants' policies, practices, and customs violate the Fourteenth

Amendment to the United States Constitution as to Plaintiffs Latif,

Knaeble, Ghaleb, Mohamed, and Muthanna; and

iii. Defendants' policies, practices, and customs violate the Immigration and

Nationality Act as to Plaintiff Omar.

b. An injunction that:

i. requires Defendants to remedy the constitutional violations identified

above, including the removal of Plaintiffs from any watch list or database

that prevents them from flying; or

ii. requires Defendants to provide Plaintiffs with meaningful notice of the

grounds for their inclusion on a government watch list, and an opportunity

to rebut the government's charges and to clear their names; and,

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iii. requires Defendants to permit Plaintiffs Latif, Knaeble, Ghaleb,
Mohamed, Muthanna, and Omar to return to the United States subject to
suitable screening procedures.
c. Awards attorneys' fees, costs, and expenses of all litigation.
d. Grants such other relief as the Court may deem just and proper.
DATED this June 29, 2010.
TONKON TORP LLP
By: Steven M. Wilker, OSB No. 911882
Email: steven.wilker@tonkon.com Telephone: 503.802.2040; Fax: 503.972.3740 Cooperating Attorney for the ACLU of Oregon
American Civil Liberties Union Foundation Ben Wizner (to be admitted pro hac vice)
Email: bwizner@aclu.org Nusrat Jahan Choudhury (to be admitted pro hac vice)
Email: nchoudhury@aclu.org Telephone: 212.519.7870; Fax: 212.549.2629
ACLU Foundation of Oregon Kevin Díaz, OSB No. 970480
Email: kdiaz@aclu-or.org Telephone: 503.227.6928; Fax: 503.227.6928
ACLU Foundation of Southern California Ahilan T. Arulanantham (to be admitted pro hac vice)
Email: aarulanantham@aclu-sc.org Jennifer Pasquarella (to be admitted pro hac vice)
Email: jpasquarella@aclu-sc.org Telephone: 213.977.9500; Fax: 213.977.5297
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097204/00001/2295965v1

ACLU Foundation of Northern California Alan L. Schlosser (to be admitted pro hac vice)
Email: aschlosser@aclunc.org Julia Harumi Mass (to be admitted pro hac vice)
Email: jmass@aclunc.org Telephone: 415.621.2493; Fax: 415.255.8437
ACLU Foundation of New Mexico Laura Schauer Ives (to be admitted pro hac vice) Email: lives@aclu-nm.org P.O. Box 566 Albuquerque, NM 87103 Telephone: 505.243.0046; Fax: 505.266.5916
Salahi Law Reem Salahi (to be admitted pro hac vice) Email: rsalahi@salahilaw.com 429 Santa Monica Blvd, Suite 550 Santa Monica, CA 90401 Telephone: 510.225.8880 Cooperating Attorney for the ACLU of Southern California
Attorneys for Plaintiffs: Ayman Latif, Mohamed Sheikh Abdirahman Kariye, Raymond Earl Knaeble IV, Steven Washburn, Nagib Ali Ghaleb, Samir Mohamed Ahmed Mohamed, Abdullatif Muthanna, Saleh A. Omar, Adama Bah, Halime Sat

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