Faisal Nabin Kashem v. William Barr
941 F.3d 358
| 9th Cir. | 2019Background:
- The No Fly List is a subset of the Terrorist Screening Database (TSDB) maintained by the TSC; placement requires "reasonable suspicion" that an individual poses a terrorism-related threat to aviation, homeland, U.S. interests abroad, or is operationally capable of violent terrorism.
- Plaintiffs (U.S. citizens) were prevented from boarding flights and challenged their placement on the No Fly List under the Fifth Amendment for vagueness, procedural due process, and substantive due process.
- DHS TRIP redress procedures were revised in 2015: DHS TRIP notifies travelers, provides an identified criterion and (when possible) an unclassified summary, forwards responses to TSC, and the TSA Administrator issues the final order.
- District court reviewed classified in camera submissions, granted summary judgment to the government on vagueness and procedural-due-process claims, and dismissed substantive due process claims for lack of jurisdiction under 49 U.S.C. § 46110.
- The Ninth Circuit affirmed: as-applied vagueness challenges failed; Mathews balancing supported the procedures used (or any errors were nonprejudicial); and substantive challenges must be pursued in the courts of appeals because TSA issues the final order.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vagueness (as-applied and facial) | No Fly criteria are vague, predictive, and invite arbitrary enforcement; lack specific behavioral indicators | Criteria are reasonably clear as applied to plaintiffs’ alleged conduct and guided by Watchlisting Guidance and reasonable-suspicion standard | As-applied vagueness fails; court declines to reach facial challenge |
| Procedural due process — burden of proof | Plaintiffs: need higher standard (clear & convincing), full statement of reasons, access to evidence, exculpatory material, live hearings and cross-examination, cleared counsel/CIPA procedures | Government: reasonable suspicion standard and redress procedures (unclassified summaries, written responses, TSA review) are adequate given national security burdens | Mathews balancing: reasonable suspicion is adequate here; written notice and summaries + opportunity to respond satisfied due process; live hearings and full CIPA disclosures not required in this record |
| Disclosure of evidence & exculpatory material | Plaintiffs: must receive all unclassified evidence and material exculpatory evidence; classified evidence should be shown to cleared counsel or fully disclosed | Government: national security may limit disclosure; use summaries and mitigations; disclosure to cleared counsel may be impractical or unavailable | Court: unclassified evidence should generally be disclosed; classified information may be withheld only if it truly implicates security and mitigation (e.g., cleared-counsel review, unclassified summaries) is not feasible; here summaries and withheld material were justified and nonprejudicial |
| Substantive due process jurisdiction | Plaintiffs: may pursue substantive due-process claims in district court | Government: 49 U.S.C. § 46110 vests exclusive review of TSA orders in courts of appeals because TSA now issues final orders | Held: § 46110 bars district-court review of substantive challenges to No Fly determinations; claims must be filed in appropriate court of appeals |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (void-for-vagueness analysis of residual clause)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (void-for-vagueness review of risk-based statutory language)
- Schall v. Martin, 467 U.S. 253 (1984) (upholding predictive-detention standard; predictions of future dangerousness can be constitutional)
- Jurek v. Texas, 428 U.S. 262 (1976) (upholding "continuing threat" standard in capital sentencing context)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (three-factor balancing test for procedural due process)
- Al Haramain Islamic Found., Inc. v. U.S. Dep't of Treasury, 686 F.3d 965 (9th Cir. 2012) (framework for handling classified evidence and mitigation measures)
- Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) (vagueness standards vary with context; as-applied analysis)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (First Amendment context; precision not absolute when national security implicated)