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.
2 KASHEM V. BARR

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.
KASHEM V. BARR 3

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 
4 KASHEM V. BARR

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 
KASHEM V. BARR 5

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.
6 KASHEM V. BARR

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 
KASHEM V. BARR 7

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 
8 KASHEM V. BARR

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 
KASHEM V. BARR 9

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 
10 KASHEM V. BARR

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), 
KASHEM V. BARR 11

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.
12 KASHEM V. BARR

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.
KASHEM V. BARR 13

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 
14 KASHEM V. BARR

[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 
KASHEM V. BARR 15

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).
16 KASHEM V. BARR

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.
KASHEM V. BARR 17

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 
18 KASHEM V. BARR

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; 
KASHEM V. BARR 19

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–
20 KASHEM V. BARR

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.
KASHEM V. BARR 21

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). 
22 KASHEM V. BARR

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).
KASHEM V. BARR 23

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 
24 KASHEM V. BARR

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.”
KASHEM V. BARR 25

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.
26 KASHEM V. BARR

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 
KASHEM V. BARR 27

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.
28 KASHEM V. BARR

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).
KASHEM V. BARR 29

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 
30 KASHEM V. BARR

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 
KASHEM V. BARR 31

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).
32 KASHEM V. BARR

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.
KASHEM V. BARR 33

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.
34 KASHEM V. BARR

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.
KASHEM V. BARR 35

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 
36 KASHEM V. BARR

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.
KASHEM V. BARR 37

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 
38 KASHEM V. BARR

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.
KASHEM V. BARR 39

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 
40 KASHEM V. BARR

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 
KASHEM V. BARR 41

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.
42 KASHEM V. BARR

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 
KASHEM V. BARR 43

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, 
44 KASHEM V. BARR

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.” 
KASHEM V. BARR 45

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).
46 KASHEM V. BARR

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:
KASHEM V. BARR 47

(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.
48 KASHEM V. BARR

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 
KASHEM V. BARR 49

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. 
50 KASHEM V. BARR

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. 05-

1457(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. 
KASHEM V. BARR 51

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 
52 KASHEM V. BARR

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.
KASHEM V. BARR 53

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 
54 KASHEM V. BARR

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 
KASHEM V. BARR 55

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 
56 KASHEM V. BARR

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.
KASHEM V. BARR 57

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.
58 KASHEM V. BARR

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 
KASHEM V. BARR 59

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.
60 KASHEM V. BARR

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.