This is the first successful challenge to the No Fly List of the United States federal government. The challenge resulted in the first time that the United States federal government has ever officially disclosed to an individual whether they are on the No Fly List.
The plaintiff is a Muslim woman, a subject of Malaysia, and a architectural scholar. Pursuant to a student visa, she was admitted to the United States to study at Stanford University where she eventually received a Ph.D. In January 2005, the plaintiff attempted to fly from San Francisco to Hawaii, but was handcuffed, arrested, and denied boarding because (it was later determined) she was on the No Fly List. After being held for about two hours, the plaintiff was eventually permitted to fly to Hawaii and then back to Los Angeles and then to Malaysia. In March 2005, while the plaintiff was in Malaysia, she was not permitted to board a flight to the United States because her student visa was revoked. The plaintiff had no information about why she could not fly and why her visa was revoked.
On January 27, 2006, the plaintiff, represented by pro bono counsel, filed a lawsuit in the U.S. District Court for the Northern District of California against multiple state and federal agencies, alleging Section 1983 claims, state law tort claims, and several constitutional claims based on the inclusion of her name on government terrorist watchlists, including the No Fly List. The federal government filed a motion to dismiss based upon lack of subject matter jurisdiction, claiming that jurisdiction to hear the plaintiff''s claims lies exclusively in the U.S. Court of Appeals under 49 U.S.C. § 46110, which gives the U.S. Court of Appeals exclusive jurisdiction over challenges to certain orders of the Transportation Security Administration. On August 16, 2006, the District Court (Judge William Alsup) agreed and held that it lacked jurisdiction to consider the constitutionality, maintenance, and implementation of the No Fly List. Ibrahim v. Dep't of Homeland Sec., No. 06-cv-00545, 2006 WL 2374645 (N.D. Cal. Aug. 16, 2006).
The plaintiff appealed the District Court's decision. On August 18, 2008, the U.S. Court of Appeals for the Ninth Circuit affirmed in part, reversed in part, and remanded. In an opinion by Chief Judge Alex Kozinski, the Ninth Circuit held that the District Court had original subject matter jurisdiction over the plaintiff's claim for injunctive relief regarding inclusion of her name on the No Fly List. The Ninth Circuit agreed that the District Court, however, lacked subject matter jurisdiction over her claim for injunctive relief regarding the government's policies and procedures implementing the no-fly list. Ibrahim v. Dep't of Homeland Sec., 538 F.3d 1250 (9th Cir. 2008). Judge Smith dissented.
On remand, the plaintiff filed a second amended complaint that sought, among other things, limited relief relevant to the plaintiff's visa situation. Cash settlements with the non-federal parties eventually reduced the question to prospective relief only as against the federal government. Thereafter, the federal government filed a motion to dismiss on the ground that the plaintiff lacked standing to assert constitutional and statutory claims seeking prospective relief. The District Court agreed and held that while the plaintiff could seek damages for past injury at the San Francisco airport (and had successfully settled that part of the case), she had voluntarily left the United States and, as a nonimmigrant alien abroad, no longer had standing to assert constitutional and statutory claims to seek prospective relief. This holding was based on the ground that the development of federal constitutional law should not be controlled by nonimmigrant aliens overseas. Ibrahim v. Dep't of Homeland Sec., 2009 WL 22746194 (N.D. Cal. July 27, 2009).
A second appeal followed. On February 8, 2012, the U.S. Court of Appeals for the Ninth Circuit reversed as to prospective standing, holding that even a nonimmigrant alien who had voluntarily left the United States nonetheless had standing to litigate federal constitutional claims in district court in the United States as long as the alien had a "substantial voluntary connection" to the United States. In an opinion by Judge William Fletcher, the Ninth Circuit found that the plaintiff had such a connection because of her time at Stanford University, her continuing collaboration with professors in the United States, her membership in several professional organizations located in the United States, the invitations for her to return, and her network of close friends in the United States. Ibrahim v. Dep't of Homeland Sec., 669 F.3d 983 (9th Cir. 2012). Judge Duffy dissented.
On the second remand, the federal government filed a motion to dismiss that was denied by the District Court on December 20, 2012. Ibrahim v. Dep't of Homeland Sec., 2012 WL 6652362 (N.D. Cal. Dec. 20, 2012). Discovery ensued, the District Court granted in limited part, but mostly denied, the federal government's motion for summary judgment, and a five-day bench trial began on December 2, 2013.
Following trial, on January 14, 2014, the District Court issued an order containing findings of fact and conclusions of law as well as granting some of the relief sought. The court found that the plaintiff does not pose (and has not posed) a threat to national security. Indeed, the court found that the plaintiff was erroneously put on the No Fly List because a FBI agent misunderstood the directions on the form to nominate persons to the No Fly List, and thus, checked the wrong box. This error further propagated through various other federal agency databases that caused her visa to be revoked and to not be allowed back into the United States.
The District Court held that due process entitled the plaintiff to a correction in the government's records to prevent the error of the FBI agent from further propagating through the various agency databases and from causing further injury to the plaintiff. The District Court further held that the federal government's DHS TRIP program was inadequate, at least on the this record, to satisfy procedural due process. The District Court, however, emphasized that it would be impractical and harmful to national security to routinely prove a pre-deprivation opportunity to be heard, and thus, until concrete, reviewable adverse action occurs against a nominee, the Executive Branch must be free to maintain its watchlists in secret.
The following relief was ordered by the District Court:
- The federal government must search and trace all of its terrorist watchlists and records for entries identifying the plaintiff and remove all references to the mistaken designations by the FBI agent and/or add a correction in the same paragraph that said designations were erroneous and should not be relied upon for any purpose.
- The federal government must inform the plaintiff of the specific subsection of Section 212(a)(3)(B) of the Immigration and Nationality Act that rendered her ineligible for a visa in 2009.
- The federal government must inform the plaintiff that she is no longer on the no-fly list and has not been on it since 2005.
- The government must inform the plaintiff that she is eligible to at least apply for a discretionary visa waiver.
Later, the District Court awarded plaintiff's counsel their reasonable fees and expenses incurred for certain claims, including the procedural due process claim. 2014 WL 1493561 (N.D. Cal. April 16, 2014); 2014 WL 1493541 (N.D. Cal. April 16, 2014). Fees litigation continues.Michael Mirdamadi - 05/12/2014