28 F. Supp. 3d 1134
D. Or.2014Background
- Plaintiffs are U.S. citizens and lawful permanent residents (including veterans) who were denied boarding on international or international-bound flights and allege they were on the government No‑Fly List.
- Plaintiffs used DHS TRIP to seek redress; DHS TRIP determination letters never confirm or deny No‑Fly List status or explain the reasons for listing, and do not provide meaningful assurances about future travel.
- The No‑Fly List is a subset of the Terrorist Screening Database (TSDB), maintained by the Terrorist Screening Center (TSC); entries are typically made on a "reasonable suspicion" standard, and some watchlisting policies and derogatory criteria are classified.
- Judicial review of DHS TRIP determinations relies on an administrative record provided to the court ex parte/in camera for classified material; petitioners do not receive the classified portion and are not told the factual basis for listing.
- The district court found plaintiffs have significant liberty interests (international air travel and reputation), that DHS TRIP procedures carry a high risk of erroneous deprivation because of a low substantive standard plus a one‑sided record, and that the government’s national‑security interest is compelling but does not absolve the need for improved process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether inclusion on the No‑Fly List without post‑deprivation notice and an opportunity to contest violates the Fifth Amendment procedural due process clause | Plaintiffs: DHS TRIP gives no notice of listing or reasons and no meaningful chance to submit rebuttal evidence after boarding denial; violates Mathews balancing | Defendants: Existing DHS TRIP and judicial review suffice; national security and protection of classified information justify limited disclosure | Court: Held for plaintiffs — DHS TRIP lacks required notice/opportunity; Mathews balancing favors additional procedures despite national‑security interests |
| Whether DHS TRIP is arbitrary and capricious under APA §706(2)(A) | Plaintiffs: DHS TRIP fails to provide a meaningful mechanism to correct errors and thus ignores Congress’s directive to establish an appeals/correction procedure | Defendants: Procedures and quality controls for TSDB, plus judicial review, satisfy APA standards | Court: Held DHS TRIP violates §706(2)(A) as it fails to consider an important aspect of Congress’s instruction and is therefore arbitrary/capricious |
| Whether DHS TRIP is contrary to constitutional right under APA §706(2)(B) | Plaintiffs: DHS TRIP's procedural defects amount to a constitutional violation, so agency action is unlawful under §706(2)(B) | Defendants: National security justifies procedures; constitutional challenge should fail | Court: Held DHS TRIP violates §706(2)(B) because it violates procedural due process (mirror of constitutional holding) |
| Scope of relief / required remedy: must court prescribe specific disclosures or allow agency to craft new procedures? | Plaintiffs: Seek notice, statement of reasons, and opportunity to contest or removal from lists | Defendants: National security and classified information constraints limit what process is feasible; court should not dictate specifics | Court: Agency must design new, reviewable procedures that provide notice and avenues to rebut (e.g., unclassified summaries or cleared‑counsel review); court will not itself prescribe exact procedures but requires case‑by‑case, reviewable determinations about withholding information |
Key Cases Cited
- Mathews v. Eldridge, 424 U.S. 319 (balancing test for procedural due process)
- Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (arbitrary and capricious standard under APA)
- Al Haramain Islamic Found., Inc. v. United States Dep’t of Treasury, 686 F.3d 965 (9th Cir. 2012) (procedural due process safeguards and use of classified materials)
- National Council of Resistance of Iran v. Department of State, 251 F.3d 192 (D.C. Cir. 2001) (notice and opportunity to be heard in national‑security designations)
- Jifry v. Federal Aviation Admin., 370 F.3d 1174 (D.C. Cir. 2004) (procedures for security‑based certificate revocation; releasable materials and written response)
- KindHearts for Charitable & Humanitarian Dev., Inc. v. Geithner, 647 F. Supp. 2d 857 (N.D. Ohio 2009) (notice and sufficiency of hearing in asset‑freeze/designation context)
- Gete v. INS, 121 F.3d 1285 (9th Cir. 1997) (due process requires disclosure of factual bases for certain governmental deprivations)