On June 30, 2010, a group of citizens or lawful permanent residents who had been denied boarding onto international flights to the United States or over United States airspace because of their alleged inclusion on a "No Fly List," filed this lawsuit in the U.S. District Court for the District of Oregon against the U.S. Department of Justice, the Federal Bureau of Investigation, and the Terrorist Screening Center, which created the No Fly Lists. Represented by the American Civil Liberties Union, the plaintiffs alleged violations of the Fifth Amendment right to due process; the Fourteenth Amendment (including the citizenship-based right to enter the United States); the Immigration and Nationality Act, 8 U.S.C. §§ 1229a, 1101(a)(20); and the Administrative Procedure Act, 5 U.S.C. §§ 702, 706.
On August 16, 2010, the plaintiffs moved for a preliminary injunction ordering the United States government to allow the plaintiffs to return to the United States by air. The government ultimately permitted their return without a court order, using a "waiver" process. The plaintiffs withdrew their motion, and on February 4, 2011, filed an amended complaint that removed the allegations related to their banishment/right-to-enter, since those claims were deemed moot once the plaintiffs were able to return to the U.S.
On November 17, 2010, the government moved to dismiss the case for lack of subject matter jurisdiction and failure to join an indispensable party--the Transportation Security Administration ("TSA"), which administers the Traveler Redress Inquiry Program ("DHS TRIP"). The TRIP program is the statutory redress process for individuals who believe they have been wrongfully denied boarding. 49 U.S.C. § 44926(a).
U.S. District Judge Anna J. Brown held oral arguments and allowed the plaintiffs to amend their complaint. In the second amended complaint, plaintiffs sought an injunction ordering the government to remove them from the No Fly List or to establish "a legal mechanism that affords them notice of the reasons and bases for their placement on the No Fly List and a meaningful opportunity to contest their continued inclusion on the No Fly List."
On May 3, 2011, Judge Brown granted the government's motion to dismiss. 2011 WL 1667471 (D. Or., May 3, 2011). Judge Brown held that the TSA was a necessary party in the litigation because the TSA administers the grievance process for travelers on a No Fly List. However, the orders of TSA following the grievance process are only judicially reviewable in federal courts of appeals, pursuant to 49 U.S.C. § 46110, so TSA could not be feasibly joined in the litigation.
The plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit, which reversed the District Court's decision in July 2012. 686 F.3d 1122 (9th Cir. 2012). Writing for an unanimous panel, U.S. Circuit Judge Richard C. Tallman held that the plaintiffs had alleged both a substantive challenge to their inclusion on a No Fly List and a procedural challenge to the adequacy of the TRIP redress procedures. Because the Terrorist Screening Center—not the TSA—compiles the list of names on the No Fly List, the Ninth Circuit held that 49 U.S.C. § 46110 does not strip the District Court of jurisdiction over a substantive challenge to inclusion of the plaintiff's name on the list. The Ninth Circuit also found that the District Court has jurisdiction to review the plaintiff's procedural challenge because the plaintiffs do not request review of a TSA order, pursuant to 49 U.S.C. § 46110, but rather a challenge to the adequacy of the redress process itself. The case was remanded to the district court for original jurisdiction over plaintiffs' claim that the government provided inadequate measures to content their inclusion on a No Fly List.
The plaintiffs subsequently filed a third amended complaint, and defendants moved for partial summary judgment on February 13, 2013. The plaintiffs cross-moved for partial summary judgment on March 22. Judge Brown heard oral arguments on June 21, and released an opinion on August 28. 2013 WL 4592515 (D. Or. Aug. 28, 2013). Judge Brown analyzed the plaintiffs' procedural due-process claims and concluded that the plaintiffs have a constitutionally-protected liberty interest in travel and reputation. Judge Brown, however, ruled that it lacked sufficient information to determine whether the government provided due process for plaintiffs to contest their inclusion on a No Fly List. Therefore, Judge Brown directed the parties to better develop the record so that the court may decide this issue.
On June 24, 2014, Judge Brown issued an opinion holding unconstitutional the No Fly list redress procedures, DHS TRIP. Those procedures did not sufficiently apprise people denied boarding why they were denied boarding, which was necessary for the would-be travelers to know how to correct the record. The result was an unfair and stigmatizing deprivation of the liberty interest in international travel. For the same reasons, Judge Brown held that the No Fly procedures violated the Administrative Procedures Act. However, Judge Brown declined to issue an injunction, instead requiring that the government propose new procedures.
On August 4, 2014, the parties submitted a joint status report containing separate proposals for proceeding in the action. The government requested a voluntary remand for six months to allow sufficient time to make changes to the existing redress problems. However, the plaintiffs argued against any further delay, and requested that the court require the parties to brief now the procedures and standards that would satisfy Judge Brown's requirements. On October 3, Judge Brown issued a case-management order denying the government's request for a remand, holding that the plaintiffs' claims should be addressed as soon as practicable. Judge Brown outlined the following timeline for the government:
- October 10, 2014 – identify which plaintiffs are not precluded from flying
- November 14, 2014 – complete an interim substantive review of the grounds for precluding the remaining plaintiffs from flying
- December 19, 2014 – file a status report with the court regarding the remaining plaintiffs' DHS TRIP applications
- January 16, 2015 – complete final substantive reconsideration of all remaining plaintiffs' DHS TRIP applications
- January 31, 2015 – file a joint status report with plaintiffs with a proposed process and schedule for adjudicating any remaining claims
Accordingly, on October 10, 2014, the government notified plaintiffs' counsel that seven of the plaintiffs were no longer on the No Fly List. On December 19, the government notified the court that interim review of No Fly List status for the remaining plaintiffs had been completed and DHS TRIP had provided notice letters to the remaining plaintiffs regarding the status of their applications. On January 22, 2015, the government filed a status report confirming that final substantive reconsideration of all plaintiffs' DHS TRIP applications had been completed. The government also outlined the procedures and standards employed in the revised redress procedures.
On February 6, 2015, the parties filed a joint status report with the court, where the parties agreed that a fundamental dispute still existed concerning the constitutional adequacy of the new redress process. As such, the parties asked Judge Brown to adjudicate the dispute based on renewed cross-motions for summary judgment. On February 13, Judge Brown issued a new case-management order. She believed it would be impractical to adjudicate the adequacy of the new redress process without also addressing plaintiff-specific claims. Judge Brown outlined the following schedule for resolving the remaining disputes:
- March 13, 2015 – parties jointly file combined and plaintiff-specific statements of agreed facts
- March 27, 2015 – plaintiffs file combined and plaintiff-specific motions for summary judgment
- April 27, 2015 – the government files oppositions to the plaintiff's motions and combined and plaintiff-specific cross-motions for summary judgment
- May 22, 2015 – plaintiffs file oppositions to the government's motions and reply memoranda to the government's oppositions
- June 15, 2015 – the government files reply memoranda to the plaintiffs' oppositions
Accordingly, the parties submitted stipulated facts, motions for summary judgment, oppositions to the motions, and related memoranda.
Additionally, on April 13, 2015, the government filed a notice reporting that the new DHS TRIP redress procedures used for the plaintiffs in this action were now made available to similarly situated U.S. persons. Specifically, the new procedures provided that individuals denied boarding would receive a letter confirming whether they were on the No Fly List and provide an option for requesting additional information. (Previously, the government only provided a letter that neither confirmed nor denied an individual's No Fly List status.) If the individual then requested that additional information, the government would send a second letter which would identify the specific criterion which resulted in the individual being placed on the No Fly List and summarize the unclassified information supporting the individual’s No Fly List status, to the extent feasible, consistent with the national security and law enforcement interests. The individual could then provide a written response with exhibits or other relevant materials. The TSA would review this response, and then issue a final written determination and also notify the individual of the opportunity to seek further judicial review under 49 U.S.C. § 46110.
On December 9, 2015, Judge Brown heard oral argument for the cross-motions for summary judgment. Supplemental memoranda were filed with the court on January 8, 2016. As of March 23, 2016, Judge Brown has yet to rule on the cross-motions: this case is ongoing in the district court.Elizabeth Homan - 09/30/2013
Michael Mirdamadi - 04/01/2014
John He - 02/20/2016