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Case Name Ibrahim v. Department of Homeland Security NS-CA-0009
Docket / Court 3:06-cv-00545-WHA ( N.D. Cal. )
State/Territory California
Case Type(s) National Security
Case Summary
On January 27, 2006, a Muslim woman, 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 ... read more >
On January 27, 2006, a Muslim woman, 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 on 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 non-federal parties eventually reduced the question to prospective relief only 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 did not pose (and had 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 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:
  1. 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.
  2. 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.
  3. 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.
  4. 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). The plaintiff appealed the decision on June 13 to the U.S. Court of Appeals for the Ninth Circuit.

On July 11, 2014, Judge Alsup appointed a special master, who issued a report and recommendation regarding the amount of the award. On October 9, 2014, Judge Alsup adopted the report and recommendation in its entirety and awarded the plaintiff’s counsel $419,987.36 in attorney’s fees and $34,768.71 in expenses. 2014 WL 5073582.

On January 2, 2019, the Ninth Circuit reversed and vacated the award of attorneys’ fees. It also remanded the case to allow the district court to make a bad faith determination under the correct legal standard and to re-determine the fee award.

The defendant has until May 31, 2019 to file in the Supreme Court a petition for a writ of certiorari to review this decision. The fee litigation is ongoing.

Michael Mirdamadi - 05/12/2014
Sichun Liu - 05/25/2019


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Equal Protection
Free Exercise Clause
Freedom of speech/association
Right to travel
Unreasonable search and seizure
Content of Injunction
Reporting
Defendant-type
Law-enforcement
General
False arrest
Terrorism/Post 9-11 issues
Watchlist
Immigration/Border
Visas - criteria
Visas - procedures
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Ex Parte Young (Federal) or Bivens
Defendant(s) Department of Homeland Security
FBI
Plaintiff Description Plaintiff is a Muslim woman and a citizen of Malaysia barred from boarding a flight because of her inclusion on the No Fly List and denied a visa to return to the United States.
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer No
Nature of Relief Declaratory Judgment
Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Settlement
Filing Year 2006
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
Docket(s)
3:06-cv-545 (N.D. Cal.)
NS-CA-0009-9000.pdf | Detail
Date: 06/07/2019
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint [ECF# 1]
NS-CA-0009-0001.pdf | Detail
Date: 01/27/2006
Source: PACER [Public Access to Court Electronic Records]
Order Granting Motions to Dismiss Brought by Federal Defendants, United Airlines Defendants, and Defendant John Bondanella [ECF# 101] (2006 WL 2374645) (N.D. Cal.)
NS-CA-0009-0003.pdf | WESTLAW | Detail
Date: 08/16/2006
Source: PACER [Public Access to Court Electronic Records]
Opinion [Affirming District Court's Judgment] [Ct. of App. ECF# 138] (538 F.3d 1250)
NS-CA-0009-0004.pdf | WESTLAW| LEXIS | Detail
Date: 08/18/2008
Source: PACER [Public Access to Court Electronic Records]
Second Amended Complaint [ECF# 161]
NS-CA-0009-0005.pdf | Detail
Date: 03/27/2009
Source: PACER [Public Access to Court Electronic Records]
Order on Motion to Dismiss [ECF# 197] (2009 WL 2246194) (N.D. Cal.)
NS-CA-0009-0006.pdf | WESTLAW | Detail
Date: 07/27/2009
Source: PACER [Public Access to Court Electronic Records]
Order [Granting Appellees' Motion to Dismiss Appeal for Lack of Jurisdiction] [Ct. of App. ECF# 313]
NS-CA-0009-0007.pdf | Detail
Date: 01/21/2010
Source: PACER [Public Access to Court Electronic Records]
Stipulation for Entry of Judgment; Judgment [ECF# 327] (N.D. Cal.)
NS-CA-0009-0008.pdf | Detail
Date: 03/15/2010
Source: PACER [Public Access to Court Electronic Records]
Opinion [Reversing and Remanding Case] [Ct. of App. ECF# 347] (669 F.3d 983)
NS-CA-0009-0009.pdf | WESTLAW| LEXIS | Detail
Date: 02/08/2012
Source: PACER [Public Access to Court Electronic Records]
Order Denying Motion to Dismiss and Motion to Stay Discovery [ECF# 399] (2012 WL 6652362) (N.D. Cal.)
NS-CA-0009-0010.pdf | WESTLAW | Detail
Date: 12/20/2012
Source: PACER [Public Access to Court Electronic Records]
Findings of Fact, Conclusions of Law, and Order for Relief [ECF# 682] (N.D. Cal.)
NS-CA-0009-0012.pdf | Detail
Date: 01/14/2014
Source: PACER [Public Access to Court Electronic Records]
Public Notice and Summary of Findings of Fact and Conclusions of Law After Bench Trial [ECF# 683]
NS-CA-0009-0011.pdf | Detail
Date: 01/14/2014
Source: PACER [Public Access to Court Electronic Records]
Order Granting in Part and Denying in Part Plaintiff's Motion for Attorney's Fees and Expenses [ECF# 739] (2014 WL 1493561) (N.D. Cal.)
NS-CA-0009-0013.pdf | WESTLAW | Detail
Date: 04/15/2014
Source: PACER [Public Access to Court Electronic Records]
Order Re Attorney's Fees and Expenses [ECF# 740] (N.D. Cal.)
NS-CA-0009-0014.pdf | Detail
Date: 04/15/2014
Source: PACER [Public Access to Court Electronic Records]
Order Re Review of Clerk's Bill of Costs [ECF# 741] (2014 WL 1493541) (N.D. Cal.)
NS-CA-0009-0015.pdf | WESTLAW | Detail
Date: 04/15/2014
Source: PACER [Public Access to Court Electronic Records]
Order Resolving Objections, Adopting Special Master's Report and Recommendation, Vacating Hearing, and Fixing Compensation [ECF# 803] (2014 WL 5073582) (N.D. Cal.)
NS-CA-0009-0016.pdf | WESTLAW | Detail
Date: 10/09/2014
Source: PACER [Public Access to Court Electronic Records]
Opinion [Ct. of App. ECF# 66-1] (835 F.3d 1048)
NS-CA-0009-0017.pdf | WESTLAW| LEXIS | Detail
Date: 08/30/2016
Source: PACER [Public Access to Court Electronic Records]
Opinion [Ct. of App. ECF# 101-1] (912 F.3d 1147)
NS-CA-0009-0018.pdf | WESTLAW| LEXIS | Detail
Date: 01/02/2019
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Alsup, William Haskell (N.D. Cal.) show/hide docs
NS-CA-0009-0003 | NS-CA-0009-0006 | NS-CA-0009-0008 | NS-CA-0009-0010 | NS-CA-0009-0011 | NS-CA-0009-0012 | NS-CA-0009-0013 | NS-CA-0009-0014 | NS-CA-0009-0015 | NS-CA-0009-0016
Bea, Carlos T. (Ninth Circuit) show/hide docs
NS-CA-0009-0007
Callahan, Consuelo Maria (Ninth Circuit) show/hide docs
NS-CA-0009-0018
Clifton, Richard R. (Ninth Circuit) show/hide docs
NS-CA-0009-0017
Duffy, Kevin Thomas (S.D.N.Y.) show/hide docs
NS-CA-0009-0009
Fletcher, William A. (Ninth Circuit) show/hide docs
NS-CA-0009-0009
Ikuta, Sandra Segal (Ninth Circuit) show/hide docs
NS-CA-0009-0017
Kozinski, Alex (Ninth Circuit) show/hide docs
NS-CA-0009-0004
Lamberth, Royce C. (FISC, D.D.C.) show/hide docs
NS-CA-0009-0017
Nelson, Dorothy Wright (Ninth Circuit) show/hide docs
NS-CA-0009-0009
Otero, S. James (C.D. Cal.) show/hide docs
NS-CA-0009-0004
Paez, Richard A. (C.D. Cal., Ninth Circuit) show/hide docs
NS-CA-0009-0007
Silverman, Barry G. (D. Ariz., Ninth Circuit) show/hide docs
NS-CA-0009-0007
Smith, Norman Randy (Ninth Circuit) show/hide docs
NS-CA-0009-0004
Plaintiff's Lawyers Elzankaly, Marwa (California) show/hide docs
NS-CA-0009-0001 | NS-CA-0009-0005 | NS-CA-0009-9000
Hammon, Kevin (California) show/hide docs
NS-CA-0009-9000
Kazi, Rubina (California) show/hide docs
NS-CA-0009-9000
McManis, James H. (California) show/hide docs
NS-CA-0009-0001 | NS-CA-0009-0005 | NS-CA-0009-9000
Peek, Christine (California) show/hide docs
NS-CA-0009-0005 | NS-CA-0009-9000
Pipkin, Elizabeth Marie (California) show/hide docs
NS-CA-0009-9000
Defendant's Lawyers Bloom, Karen S (District of Columbia) show/hide docs
NS-CA-0009-9000
Farel, Lily Sara (District of Columbia) show/hide docs
NS-CA-0009-9000
Flynn, Ronald P. (California) show/hide docs
NS-CA-0009-9000
Freeborne, Paul Gerald (District of Columbia) show/hide docs
NS-CA-0009-9000
Go, Samuel P. (District of Columbia) show/hide docs
NS-CA-0009-9000
Grotch, Richard (California) show/hide docs
NS-CA-0009-9000
Keith, Peter J. (California) show/hide docs
NS-CA-0009-9000
Kelleher, Diane (District of Columbia) show/hide docs
NS-CA-0009-9000
Kells, Conor (District of Columbia) show/hide docs
NS-CA-0009-9000
Mayo, Sharon D. (California) show/hide docs
NS-CA-0009-9000
Soosaipillai, Miruni (California) show/hide docs
NS-CA-0009-9000
Theis, John Kenneth (District of Columbia) show/hide docs
NS-CA-0009-9000
Tyler, John Russell (District of Columbia) show/hide docs
NS-CA-0009-9000

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