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Kashem v. Barr

United States Court of Appeals, Ninth Circuit

October 21, 2019

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.

          Argued and Submitted October 9, 2018 Portland, Oregon

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

          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.

          Before: Raymond C. Fisher and Consuelo M. Callahan, Circuit Judges, and Cathy Ann Bencivengo, District Judge. [*]

         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.

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

          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 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' as-applied 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 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 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 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 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 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), 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 pre-2015 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 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 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 [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 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).

          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-for-vagueness 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.

         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 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 ...


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