Latif v. Holder

28 F.Supp.3d 1134 (2014)

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Nature of the Case

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Facts

Ps are citizens and lawful permanent residents of the United States (including four veterans of the United States Armed Forces) who were not allowed to board flights to or from the United States or over United States airspace. Ps have it on good belief that they were denied boarding because they are on the No-Fly List. The No-Fly List is a government terrorist watch list of individuals who are prohibited from boarding commercial flights that will pass through or over United States airspace. Each P submitted applications for redress through the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP). Their requests fell on deaf ears. No explanations have been provided and Ps have no clue if they will be permitted to fly in the future. Ps have alleged that Ds have violated their Fifth Amendment right to procedural due process because Ds have not given Ps any post-deprivation notice nor any meaningful opportunity to contest their continued inclusion on the No-Fly List. Ps claim that Ds’ actions are arbitrary and capricious and constitute 'unlawful agency action' in violation of the APA. The FBI, which administers the Terrorist Screening Center (TSC), develops and maintains the federal government's consolidated Terrorist Screening Database (TSDB or sometimes referred to as 'the watch list'). The No-Fly List is a subset of the TSDB. TSC receives nominations for inclusion in the TSDB and generally accepts those nominations on a showing of 'reasonable suspicion' that the individuals are known or suspected terrorists based on the totality of the information. TSC defines its reasonable-suspicion standard as requiring 'articulable facts which, taken together with rational inferences, reasonably warrant the determination that an individual 'is known or suspected to be, or has been engaged in conduct constituting, in preparation for, in aid of or related to, terrorism or terrorist activities.'' The government also has its own 'Watchlisting Guidance' for internal law-enforcement and intelligence use, and the No-Fly List has its own minimum substantive derogatory criteria. D does not release these documents. Ps may submit a Traveler Inquiry Form to DHS TRIP. Ps must describe the complaint, produce documentation relating to the issue, and provide identification and contact information. TSC Redress reviews the available information, including the information and documentation provided by the traveler, and determines (1) whether the traveler is an exact match to an identity in the TSDB and (2) whether the traveler should continue to be in the TSDB if the traveler is an exact match. TSC coordinates with the agency that originally nominated the individual to be included in the TSDB. If the traveler has been misidentified as someone who is an exact match to an identity in the TSDB, TSC Redress informs DHS of the misidentification. Ds are supposed to correct any bad information on their lists. After review, DHS TRIP sends a determination letter of a completed review. The letter neither confirms nor denies that the complainant is in the TSDB or on the No-Fly List and does not provide any further details about why the complainant may or may not be in the TSDB or on the No-Fly List. Sometimes the letter informs Ps they can pursue an administrative appeal of the determination letter with TSA or can seek judicial review in a United States court of appeals pursuant to 49 U.S.C. § 46110. Ps are still left in the dark about whether they can travel or even how to address the problems with someone in charge who can fix them if warranted. If P files a court complaint, Ds provide the court with the administrative information but nothing is given to Ps. This is supposed to be done in order not to reveal sources and methods. At no point during the judicial-review process does D provide P with confirmation as to whether they are on the No-FlyList, set out the reasons for including P's name on the List, or identify any information or evidence relied on to maintain P's name on the List. If the court determines the administrative record supports P's inclusion on the No-Fly List, it will deny review. If the court determines the administrative record contains insufficient evidence to satisfy the substantive derogatory criteria, D takes the position that the court may remand the matter to the government for appropriate action. Each Ps filed DHS TRIP complaints after being denied boarding and each received a determination letter that does not confirm or deny they are on any terrorist watch list nor provide a reason for any P to be included in the TSDB or on the No-Fly List. Both sides moved for summary judgments.