Ayman Latif v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AYMAN LATIF; MOHAMED SHEIKH 

ABDIRAHMAN KARIYE; RAYMOND

EARL KNAEBLE IV; NAGIB ALI

GHALEB; SAMIR MOHAMED AHMED

MOHAMED; ABDULLATIF MUTHANNA;

SALEH A. OMAR; FAISAL NABIN

KASHEM; ELIAS MUSTAFA

MOHAMED; ABDUL HAKEIM THABET

AHMED; IBRAHEIM Y. MASHAL;

SALAH ALI AHMED; AMIR MESHAL;

STEPHEN DURGA PERSAUD; STEVEN No. 11-35407

WILLIAM WASHBURN,

Plaintiffs-Appellants,  D.C. No.

3:10-cv-00750-BR

v. OPINION

ERIC H. HOLDER Jr., Attorney

General, in his official capacity as

Attorney General of the United

States; ROBERT S. MUELLER, III, in

his official capacity as Director of

the Federal Bureau of

Investigation; TIMOTHY J. HEALY,

in his official capacity as Director

of the Terrorist Screening Center,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Oregon

Anna J. Brown, District Judge, Presiding

Argued and Submitted

May 11, 2012—Portland, Oregon

8475

8476 LATIF v. HOLDER

Filed July 26, 2012

Before: Alex Kozinski, Chief Judge, A. Wallace Tashima

and Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman

8478 LATIF v. HOLDER

COUNSEL

Nusrat J. Choudhury (argued) and Hina Shamsi, American

Civil Liberties Union Foundation, New York, New York;

Kevin Diaz, ACLU Foundation of Oregon, Inc., Portland,

Oregon; Julia Harumi Mass, ACLU Foundation of Northern

California, San Francisco, California; Jennifer Lee Pasqua-

rella, ACLU Foundation of Southern California, Los Angeles,

California; and Steven Wilker, Tonkon Torp, LLP, Portland,

Oregon, for the plaintiffs-appellants.

James Edward Cox, Jr., Assistant United States Attorney,

United States Attorney’s Office for the District of Oregon,

Portland, Oregon; and Joshua Paul Waldman (argued), Doug-

las Neal Letter, and Amy Elizabeth Powell, United States

Department of Justice, Washington, DC, for the defendants-

appellees.

OPINION

TALLMAN, Circuit Judge:

The Terrorist Screening Center (“TSC”), which is adminis-

tered by the Federal Bureau of Investigation (“FBI”), main-

LATIF v. HOLDER 8479

tains a list of known and suspected terrorists who are not per-

mitted to fly in United States airspace. Plaintiffs—all United

States citizens or legal permanent residents—have good rea-

son to believe that they are on the “No-Fly List” (“List”).

They initially submitted grievances through the redress pro-

gram run by the Transportation Security Administration

(“TSA”), but the government has refused to confirm or deny

their inclusion on the List, to disclose the bases for their

apparent inclusion, or to provide any assurances about future

travel.

Rather than continuing to pursue their administrative griev-

ances with TSA, Plaintiffs filed this action in the United

States District Court for the District of Oregon against the

Director of TSC, the Director of the FBI, and the Attorney

General. They demand that the government remove them

from the List or provide a more “meaningful” opportunity to

contest their apparent inclusion on the List.

The district court dismissed the case, holding that TSA is

a necessary party to the litigation because Plaintiffs challenge

the adequacy of TSA’s grievance procedures, see Fed. R. Civ.

P. 19, but that TSA could not feasibly be joined in the district

court due to 49 U.S.C. § 46110, which grants federal courts

of appeals exclusive jurisdiction to review TSA’s final orders.1

We reverse and remand.

1

49 U.S.C. § 46110(a) provides:

[A] person disclosing a substantial interest in an order issued by

the Secretary of Transportation (or the Under Secretary of Trans-

portation for Security . . . or the Administrator of the Federal

Aviation Administration . . .) in whole or in part under this part,

part B, or subsection (l) or (s) of section 114 may apply for

review of the order by filing a petition for review in the United

States Court of Appeals for the District of Columbia Circuit or

in the court of appeals of the United States for the circuit in

which the person resides or has its principal place of business.

8480 LATIF v. HOLDER

I

A

The Bush administration established TSC in order to con-

solidate the government’s approach to terrorism screening in

response to concerns about the lack of intelligence-sharing

among federal agencies following the attacks of September

11, 2001. TSC develops and maintains the List. The National

Counterterrorism Center and the FBI submit nominations of

known and suspected terrorists, and TSC then decides who to

include on the List based on classified intelligence.2 TSC sub-

sequently provides the List—which contains only sensitive,

unclassified identity information, not the underlying classified

intelligence information—to TSA, which in turn implements

the List at the airport.3

2

The List is a subset of a terrorist screening database maintained by

TSC. To be included in the database, a nomination must (1) contain suffi-

cient identifying data so that a person being screened can be matched to

or disassociated from the record, and (2) satisfy minimum substantive

derogatory criteria. Generally, nominations must be based on reasonable

suspicion derived from the totality of available information that the indi-

vidual is a known or suspected terrorist. Reasonable suspicion in this con-

text requires “ ‘articulable’ facts which, taken together with rational

inferences, reasonably warrant a determination that an individual is known

or suspected to be, or has been engaged in conduct constituting, in prepa-

ration for, in aid of or related to, terrorism and terrorist activities.” The

List has its own minimum substantive derogatory criteria, which the gov-

ernment has not disclosed.

3

Congress tasked TSA with establishing procedures for notifying “air-

port and airline security officers of the identity of individuals known to

pose or suspected of posing, a risk of . . . terrorism or a threat to airline

or passenger safety.” 49 U.S.C. § 114(h)(2). Through the “Secure Flight”

program, aircraft operators provide TSA with data about each passenger.

See 49 C.F.R. § 1560.101. TSA compares that passenger data with the List

and provides the results to aircraft operators. Aircraft operators must

obtain clearance from TSA before issuing a boarding pass or allowing a

traveler to enter the sterile area of the airport or board an aircraft. See 49

C.F.R. § 1560.105(b).

LATIF v. HOLDER 8481

TSC does not accept complaints directly from travelers

who believe they have been wrongly included on the List.

Instead, pursuant to statutory directive, TSA has established

the DHS Traveler Redress Inquiry Program (“DHS TRIP”).

See 49 U.S.C. § 44903(j)(2)(G)(i) (“[TSA] shall establish a

timely and fair process for individuals identified as a threat

under [the advanced airline passenger prescreening system] to

appeal to [TSA] the determination and correct any erroneous

information.”); § 44926(a) (“The Secretary of Homeland

Security shall establish a timely and fair process for individu-

als who believe they have been delayed or prohibited from

boarding a commercial aircraft because they were wrongly

identified as a threat under the regimes utilized by [TSA].

. . .”).

DHS TRIP is essentially a clearinghouse for traveler griev-

ances. The complainant initiates administrative review by

submitting a grievance, see 49 C.F.R. § 1560.205(b), which

TSA reviews. If the traveler was misidentified (i.e., the trav-

eler is not on the List but has been misidentified as someone

who is), then TSA addresses the problem by updating or cor-

recting information in the traveler’s record or taking other

appropriate action. If the traveler is an exact or near match to

someone on the List, TSA forwards the grievance to TSC’s

redress unit.

Upon receipt, TSC reviews all available information to

determine whether the traveler is actually on the List. If the

traveler has been misidentified, TSC informs TSA, which

then takes corrective action. If the traveler is an exact match,

TSC coordinates with the original nominating agency to

determine whether the traveler should remain on the List.

TSC is “the final arbiter” of whether the traveler stays on the

List, and informs TSA of the final determination.

TSA sends a determination letter to the traveler when

review is complete. The letter tells the traveler that review of

his DHS TRIP grievance is complete, but does not confirm or

8482 LATIF v. HOLDER

deny whether the traveler is (or ever was) on the List or pro-

vide any assurances about future travel. In some cases, the let-

ter informs the traveler about the availability of an

administrative appeal within TSA and/or judicial review in

the United States Courts of Appeals under § 46110.

B

Plaintiffs are fifteen United States citizens and lawful per-

manent residents who allege that they were prevented from

boarding domestic and international commercial flights in the

United States and overseas due to their apparent inclusion on

the List.4 They submitted DHS TRIP grievances but, before

most received any response, filed this lawsuit challenging

their apparent inclusion on the List and claiming that the gov-

ernment’s alleged failure to afford them a meaningful oppor-

tunity to contest their apparent inclusion violates their Fifth

Amendment right to due process, and constitutes unlawful

agency action in violation of the Administrative Procedure

Act, 5 U.S.C. §§ 702, 706. They seek an injunction directing

the government to either remove them from the List or pro-

vide “a legal mechanism that affords them notice of the rea-

sons and bases for their placement on the No Fly List and a

meaningful opportunity to contest their continued inclusion

on the No Fly List.”

After this case was initiated, Plaintiffs each received a DHS

TRIP determination letter. Some letters state that “DHS has

researched and completed our review of your case,” that “we

can neither confirm nor deny any information about you

which may be within federal watchlists,” and that “[t]his letter

constitutes our final agency decision, which is reviewable by

the United States Court of Appeals under 49 U.S.C. § 46110.”

The remaining letters state that “it has been determined that

4

A few of the plaintiffs were allegedly stranded abroad at the time this

lawsuit was originally filed, but all have now been granted “one-time

waivers” to return home.

LATIF v. HOLDER 8483

no changes or corrections are warranted at this time,” that

“you may file a request for administrative appeal with

[TSA],” and that “[t]his determination will become final 30

calendar days after you receive this letter unless you file a

timely administrative appeal. Final determinations are review-

able by the United States Court of Appeals pursuant to 49

U.S.C. § 46110.” Plaintiffs have not pursued further adminis-

trative review by TSA or filed a § 46110 petition in a court

of appeals.

Instead, Plaintiffs pursued their claims before the district

court, which ultimately dismissed the action. The court read

their complaint to raise only procedural claims regarding the

sufficiency of the grievance procedures available to contest

their apparent inclusion on the List. The court held that TSA

is a necessary party to the litigation, but that it could not be

joined in light of § 46110. See Fed. R. Civ. P. 19. Plaintiffs

timely appealed.

II

We review a district court’s decision regarding joinder for

abuse of discretion, but review legal conclusions underlying

that decision de novo. Lyon v. Gila River Indian Cmty., 626

F.3d 1059, 1067 (9th Cir. 2010). Construing the operative

complaint “generously,” Pegram v. Herdrich, 530 U.S. 211,

230 n.10 (2000), Plaintiffs have raised both a substantive

challenge to their own apparent inclusion on the List and a

procedural challenge to the adequacy of the redress proce-

dures available to challenge their apparent inclusion on the

List.

A

[1] The district court has jurisdiction over Plaintiffs’ sub-

stantive challenge.5 “Section 46110 grants exclusive jurisdic-

5

The operative complaint is far from a model pleading. On remand, the

district court may wish to direct Plaintiffs to amend their complaint to

state with greater specificity the legal basis for their substantive due pro-

cess challenge to their apparent inclusion on the List.

8484 LATIF v. HOLDER

tion to the federal courts of appeals to ‘review’ the ‘orders’

of a number of agencies,” including TSA, DHS, and the Fed-

eral Aviation Administration (“FAA”)—but not TSC or the

FBI. Ibrahim v. Dep’t of Homeland Security, 538 F.3d 1250,

1254 (9th Cir. 2008) (“Ibrahim I”) (alterations omitted) (quot-

ing Clark v. Busey, 959 F.2d 808, 811-12 (9th Cir. 1992)).

Because TSC “actually compiles the list of names ultimately

placed” on the List, § 46110 does not strip the district court

of federal question jurisdiction over substantive challenges to

the inclusion of one’s name on the List. Id. at 1255 (internal

quotation marks omitted).6 Accordingly, we must remand

Plaintiffs’ substantive challenge.

B

Unlike Plaintiffs’ substantive challenge, their procedural

due process challenge undoubtedly requires at least some

review of TSA’s orders, namely, the policies and procedures

implementing DHS TRIP. Indeed, Plaintiffs concede that

“[b]ecause DHS TRIP is the process by which the govern-

ment purports to offer ‘redress’ to aggrieved travelers, its

structural deficiencies will be central to the resolution of

Plaintiffs’ [procedural] claims.” Consequently, the district

court’s determination that TSA is a necessary party was not

an abuse of discretion. The district court, however, erred in

holding that joinder of TSA is infeasible in light of § 46110.

1

At the heart of this appeal is the parties’ dispute about the

reach of § 46110. The government argues that we have exclu-

6

With regard to the applicability of § 46110, there is no meaningful dif-

ference between the “initial placement” of a name on the List and “contin-

ued placement” or “removal.” Although the government does attempt to

draw this distinction in order to distinguish this case from Ibrahim I, it

concedes that TSC decides both whether travelers are placed on the List

and whether they stay on it.

LATIF v. HOLDER 8485

sive jurisdiction because Plaintiffs’ procedural challenge

requires review of TSA’s existing redress program, and

§ 46110 applies to judicial review of TSA’s final orders.

Plaintiffs contend that § 46110 does not strip the district court

of jurisdiction because, at bottom, they challenge TSC’s deci-

sion to include or retain them on the List, and TSC is not an

agency listed in § 46110. We conclude that § 46110 does not

apply.

[2] Section 46110 “does not grant the court of appeals

direct and exclusive jurisdiction over every possible dispute”

involving TSA. Americopters, LLC v. FAA, 441 F.3d 726, 735

(9th Cir. 2006). “ ‘[T]he district court’s federal question juris-

diction is preempted by § 46110 as to those classes of claims

reviewable under § 46110.’ ” Id. at 736 (alterations omitted)

(quoting Mace v. Skinner, 34 F.3d 854, 859-60 (9th Cir.

1994)). The district court, therefore, may retain jurisdiction

over claims challenging TSA’s orders when “§ 46110 does

not explicitly allow us to hear them.” Id. at 735.

[3] Section 46110 grants us jurisdiction only “to affirm,

amend, modify, or set aside” any part of TSA’s orders, or to

order TSA to “conduct further proceedings.” 49 U.S.C.

§ 46110(c). “[W]e have no jurisdiction to grant other reme-

dies” under § 46110. Americopters, 441 F.3d at 735 (citing

Mace, 34 F.3d at 858).

In several prior cases, we allowed broad constitutional

claims for damages against the FAA to proceed in the district

court because, under § 46110, we lack jurisdiction to grant

damages. See, e.g., Crist v. Leippe, 138 F.3d 801, 802-05 (9th

Cir. 1998) (holding that the district court had jurisdiction over

a due process claim for damages based on the FAA’s alleged

spoliation of evidence while the plaintiff ’s FAA hearing was

pending); Foster v. Skinner, 70 F.3d 1084, 1086-88 (9th Cir.

1995) (holding that the district court had jurisdiction over

Fifth and Sixth Amendment Bivens claims); Mace, 34 F.3d at

856-60 (same). The district court’s jurisdiction over damages

8486 LATIF v. HOLDER

claims against § 46110 agencies (which include TSA, DHS,

and the FAA, but not TSC or the FBI) is not without limits.

The district court lacks jurisdiction to hear damages claims

that are “ ‘inescapably intertwined with a review of the proce-

dures and merits surrounding the [agency’s] order.’ ” Ameri-

copters, 441 F.3d at 736 (quoting Crist, 138 F.3d at 803). A

damages claim, however, is not “ ‘inescapably intertwined’ ”

if it “ ‘constitute[s] a broad challenge to the allegedly uncon-

stitutional actions of the [agency],’ and is not a claim merely

‘based on the merits of [an] individual situation.’ ” Id. (foot-

note and citation omitted) (quoting Mace, 34 F.3d at 858-59).

The “inescapably intertwined” doctrine “prevents plaintiffs

from crafting constitutional tort claims either as a means of

‘relitigat[ing] the merits of the previous administrative pro-

ceedings,’ or as a way of evading entirely established admin-

istrative procedures.” Id. (citation omitted) (quoting Tur v.

FAA, 104 F.3d 290, 292 (9th Cir. 1997)).

2

Plaintiffs’ procedural challenge is unlike any we have

addressed in the past. So far as we can discern, all of our prior

cases required review of orders issued either by an agency

explicitly included in § 46110 (e.g., TSA, DHS, or the FAA)

or by an agency excluded from that provision (e.g., TSC)—

not orders issued by both. See, e.g., Ibrahim I, 538 F.3d at

1254-57 (addressing separately challenges to TSC’s decision

to include the plaintiff on the List and challenges to TSA air-

port security policies); Gilmore v. Gonzales, 435 F.3d 1125,

1131-34 (9th Cir. 2006) (reviewing a TSA Security Direc-

tive); Crist, 138 F.3d at 802-05 (addressing challenges to

FAA orders); Foster, 70 F.3d at 1086-88 (same); Mace, 34

F.3d at 856 (same).

[4] Plaintiffs’ procedural challenge requires judicial review

of orders issued both by TSA, which is named in § 46110, and

by TSC, which is not. TSA’s implementation of DHS TRIP

is at issue, but TSA is merely a conduit for a traveler’s chal-

LATIF v. HOLDER 8487

lenge to inclusion on the List. TSA simply passes grievances

along to TSC and informs travelers when TSC has made a

final determination. TSC—not TSA—actually reviews the

classified intelligence information about travelers and decides

whether to remove them from the List. And it is TSC—not

TSA—that established the policies governing that stage of the

redress process.

[5] If Plaintiffs are entitled to judicial relief, any remedy

must involve both TSA and TSC. Here, Plaintiffs demand to

know why they are apparently included on the List and an

opportunity to advocate for their removal. Ordering TSA to

tell Plaintiffs why they were included on the List and to con-

sider their responses in deciding whether they should remain

on it, would be futile. Such relief must come from TSC—the

sole entity with both the classified intelligence information

Plaintiffs want and the authority to remove them from the

List. Thus, because we would not be able to provide relief by

simply amending, modifying, or setting aside TSA’s orders or

by directing TSA to conduct further proceedings, we lack

jurisdiction under § 46110 to address Plaintiffs’ procedural

challenge.

3

Having concluded that we lack jurisdiction under § 46110,

we must now consider whether the district court has jurisdic-

tion to hear Plaintiffs’ procedural challenge. “ ‘[W]here Con-

gress intends to preclude judicial review of constitutional

claims, its intent to do so must be clear.’ ” Elgin v. Dep’t of

the Treasury, 132 S. Ct. 2126, 2132 (2012) (alterations omit-

ted) (quoting Webster v. Doe, 486 U.S. 592, 603 (1988)). But

“where Congress simply channels judicial review of a consti-

tutional claim to a particular court,” we ask “only whether

Congress’ intent to preclude district court jurisdiction was

‘fairly discernible in the statutory scheme.’ ” Id. (quoting

Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351 (1984)).

8488 LATIF v. HOLDER

[6] Here, we need not determine which standard applies

because it is neither clear nor fairly discernible from the statu-

tory scheme that Congress intended to strip the district court

of jurisdiction over Plaintiffs’ constitutional claim. Section

46110 does not apply to TSC. And we have consistently held

that § 46110 is not an absolute bar to district court review of

TSA’s orders. See, e.g., Crist, 138 F.3d at 804-05; Foster, 70

F.3d at 1088; Mace, 34 F.3d at 860.

The considerations that have led us to limit a district court’s

jurisdiction to review claims against § 46110 agencies do not

apply here. See Americopters, 441 F.3d at 736 (explaining

that a claim for damages against a § 46110 agency is barred

where it is merely “a way of evading entirely established

administrative procedures” or an effort to relitigate the merits

of a previous administrative proceeding). Our lack of jurisdic-

tion under § 46110 to grant relief is not the result of artful

pleading or any deliberate attempt by Plaintiffs to evade

§ 46110. Rather, it arises from the unique relationship

between TSA and TSC in processing traveler grievances to

determine who should remain on the List.

[7] Plaintiffs raise broad constitutional claims that do not

require review of the merits of their individual DHS TRIP griev-

ances.7 DHS TRIP does not appear to provide any mechanism

for Plaintiffs to challenge the adequacy of the process itself,

and the record does not reveal whether their procedural chal-

lenge has been reviewed on the merits in any prior administra-

tive proceeding. Accordingly, we also remand Plaintiffs’

procedural challenge to the district court for such further pro-

ceedings as may be required to make an adequate record to

support consideration of their claims.

7

We do not address whether Plaintiffs’ failure to pursue their DHS

TRIP grievances precludes judicial review of their claims because the par-

ties have not briefed this issue, nor has the district court had an opportu-

nity to consider it.

LATIF v. HOLDER 8489

III

[8] At oral argument, the government was stymied by what

we considered a relatively straightforward question: what

should United States citizens and legal permanent residents do

if they believe they have been wrongly included on the No-

Fly List? In Ibrahim I, we held that district courts have origi-

nal jurisdiction over travelers’ substantive challenges to inclu-

sion on the List. Today, we take another step toward

providing an answer. We hold that the district court also has

original jurisdiction over Plaintiffs’ claim that the government

failed to afford them an adequate opportunity to contest their

apparent inclusion on the List. We leave it to the district court

to determine whether to require joinder of TSA on remand.

We hold only that § 46110 presents no barrier to adding TSA

as an indispensable party. We also leave to the sound judg-

ment of the district court how to handle discovery of what

may be sensitive intelligence information. See Classified

Information Procedures Act, 18 U.S.C. app. 3 §§ 1-16.

REVERSED and REMANDED.