Latif v. Holder
969 F. Supp. 2d 1293
D. Or.2013Background
- Thirteen U.S. citizens / lawful permanent residents (including veterans) were denied boarding on flights to, from, or over U.S. airspace and believe they are on the federal "No Fly List." Each submitted DHS TRIP redress requests and received determination letters that neither confirm nor explain placement.
- The No Fly List is a subset of the Terrorist Screening Database (TSDB) maintained by the Terrorist Screening Center (TSC); nomination standards and internal watchlisting guidance are not publicly disclosed.
- DHS TRIP accepts traveler inquiries and forwards likely TSDB-related complaints to TSC Redress, which reviews matches and may coordinate with the nominating agency; determinations do not provide the reasons for listing or permit an in-person hearing to confront evidence.
- Plaintiffs allege procedural due-process violations (Fifth Amendment) and APA claims challenging the adequacy of post-deprivation notice and opportunity to contest inclusion on the No Fly List; they seek declaratory and injunctive relief (e.g., notice, a chance to contest, removal from lists).
- This Court previously dismissed for failure to join TSA and jurisdictional issues; the Ninth Circuit reversed, holding the district court has original jurisdiction over adequacy-of-process claims. Parties filed cross-motions for partial summary judgment; the Court heard argument and requested further briefing on appellate review under DHS TRIP.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether placement on No Fly List implicates a protected liberty interest in international air travel | Being banned from commercial international air travel is a constitutionally protected liberty interest; alternatives are often impracticable | Constitution does not guarantee travel by a particular mode; cases like Gilmore and Green show no absolute right to fly | Court: Plaintiffs have a protected liberty interest in international air travel by air; first Mathews factor favors Plaintiffs |
| Whether placement plus stigma satisfies the "stigma-plus" due-process test | Public designation as suspected terrorists plus loss of ability to fly constitutes stigma-plus (reputation + tangible deprivation) | No-plus: no right to air travel and alternatives exist, so stigma lacks a legally cognizable "plus" | Court: Placement carries stigma and the ban on air travel is a sufficient "plus"; stigma-plus met |
| Whether DHS TRIP provides adequate post-deprivation notice and a meaningful opportunity to be heard (risk of erroneous deprivation; Mathews second factor) | DHS TRIP letters provide no reasons, so complainants cannot correct errors or mount a meaningful challenge; risk of erroneous deprivation is high given documented TSDB errors | DHS TRIP review and judicial review under §46110 (ex parte administrative record to appeals court) suffice; disclosure would harm national security | Court: DHS TRIP provides no substantive notice or hearing; on current record, insufficient development to decide whether appellate review under §46110 cures the process deficiency — further fact development required |
| Whether the government interest (Mathews third factor) outweighs additional process | Plaintiffs: government can provide tailored procedures without imperiling security; quality-control concerns persist | Defendants: national security, information-sharing, and classification concerns make disclosure and in-person hearings harmful and burdensome | Court: Cannot evaluate fully because record is insufficient regarding the nature and adequacy of appellate review; third factor deferred pending further development |
Key Cases Cited
- Mathews v. Eldridge, 424 U.S. 319 (Sup. Ct.) (establishes three-factor due-process balancing test)
- Kent v. Dulles, 357 U.S. 116 (Sup. Ct.) (right to international travel is protected liberty)
- DeNieva v. Reyes, 966 F.2d 480 (9th Cir.) (passport seizure case recognizing post-deprivation hearing requirement)
- Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir.) (no constitutional right to travel by any particular mode; distinguishes burdens)
- Wisconsin v. Constantineau, 400 U.S. 433 (Sup. Ct.) (recognition of reputation interest underlying stigma-plus doctrine)
- Jifry v. F.A.A., 370 F.3d 1174 (D.C. Cir.) (substitute procedural safeguards may be acceptable where national security-sensitive information is involved)
- Ibrahim v. Dep’t of Homeland Security, 669 F.3d 983 (9th Cir.) (discusses TSDB quality-control concerns and relevance to No-Fly/List challenges)